Jones DCJ - 3 July 2014
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Application – leave to appeal – whether time for filing notice of appeal expired – whether if time for filing notice of appeal had expired leave ought be granted – whether reasonable explanation for delay – whether applicant had reasonable prospects of success in the substantive appeal if leave granted – whether fairness dictated that leave be granted – costs.

Facts: This was an application for leave to appeal against Council's decision to approve a development proposal advanced by Trinity Green Development Pty Ltd (Trinity) where the time for filing a notice of appeal under the Sustainable Planning Act 2009 (Qld) (SPA) had expired.

Following the end of the appeal period, the Applicant filed a document purporting to be a notice of appeal which stated the grounds of appeal were: "we are requesting an extension to the appeal lodgement deadline to have more time to organise the appeal properly." The Applicant subsequently filed two documents described as applications in pending proceedings which set out a number of grounds upon which the Applicant contended that the proposal should be overturned, including on the basis of preservation of open space and protection of koala habitat areas.

The issues for the Court's consideration were whether the purported notice of appeal was filed out of time, and if it was, whether there were sufficient reasons, despite the delay, to grant the Applicant leave to appeal.

The Applicant led evidence that he had acted on advice of the Court registry in filing his material. The Applicant argued that because of the alleged representations made by the Court registry, he had complied with the SPA and, if he had not, any non-compliance should be excused because of the advice given.

Trinity opposed the application on the basis that the grounds of appeal disclosed no reasonable cause of action.

No application for costs was made by Council. Trinity submitted that costs should follow the event.

Decision: The Court held, in dismissing the application

  1. The Applicant had not complied with the relevant provisions of the SPA dealing with the filing of a proper notice of appear
  2. The Court's discretion in deciding whether or not to extend time was a wide one and one that ought not be fettered by reference to rigid criteria such as the need for exceptional circumstances.
  3. Even without subjecting the Applicant's material to any substantive scrutiny, the Applicant did not reveal a case (or potential case) with any realistic prospects of the success. It was not a case where the interests of justice or fairness warranted an extension of time to appeal.
  4. Trinity was entitled to a favourable costs order, but such costs should be limited to no more than $750.