Environment and Planning – Application – where applicant sought for appeal to be dismissed for want of prosecution

Facts: This was an application by the Logan City Council (Council) to have an appeal dismissed for want of prosecution. The subject appeal, which was filed by Mark Sorraghan (the Respondent to the application) on 13 August 2010, was against the Council's decision to refuse a development application for a material change of use. Since that time, the Respondent had not taken a step in the proceeding since 10 August 2011 and had failed to comply with numerous orders of the Court, including orders requiring nomination of its expert witnesses, attendance at a without prejudice conference, production of individual expert reports and had failed to attend Court on 12 separate occasions.

The Respondent did not dispute these facts, and contended that the reason for his failure to comply with the orders and progress the appeal was because of a number of health issues (including depression) and the fact that he was essentially impecunious.

Decision: The Court held, in allowing the application:

  1. The health and financial state of affairs of the Respondent were relevant considerations. However, in this case, they were not sufficient to explain the unsatisfactory conduct of the Respondent to date. The appeal was characterised by periods of delay that were wholly attributable to the Respondent. It was also a significant consideration that the Respondent accepted that there was no prospect of him taking any meaningful step in the proceeding in the foreseeable future.
  2. The Respondent's concession (and the Council's acceptance) that the appeal should be dismissed on the basis that Council did not pursue cost orders and that the parties conduct further without prejudice discussions (despite the appeal being dismissed), was a matter to be taken into account by the Court but it was by no means decisive in relation to the orders made.
  3. The appeal should be dismissed.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.