PLANNING & ENVIRONMENT COURT

OF QUEENSLAND



CITATION: Demiscto Pty Ltd v Brisbane City Council & Ors [2008]
QPEC 22
PARTIES: DEMISCTO PTY LTD (ACN 108 091 836)
(Appellant)
v
BRISBANE CITY COUNCIL
(Respondent)
and
CHIEF EXECUTIVE, DEPARTMENT OF MAIN
ROADS
(First Co-Respondent by Election)
and
BERILEY PTY LTD (ACN 119 849 599)
(Second Co-Respondent by Election)
FILE NO/S: BD 3048 of 2007
DIVISION: Appellate
PROCEEDING: Application to strike out Second Co-Respondent by Election
as a party
ORIGINATING
COURT:
Brisbane
DELIVERED ON: 15 April 2008
DELIVERED AT: Brisbane
HEARING DATE: 9 April 2008
J UDGE: Robin QC DCJ
ORDER: Second Co-Respondents entry of appearance and notice
of election to co-respond struck out
CATCHWORDS: Integrated Planning Act 1997 s 4.1.45, s 4.1.55 Acts
Interpretation Act 1954, s 39(1), s 39A(1) Planning and
Environment Court Rules r 15 developers appeal against
deemed refusal notice of appeal and of entitlement to be
heard posted to adverse submitter at its (post office box)
address shown in the submission submitters officers on
vacation, say they not collect notice until time for electing to
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co-respond had expired notice of election to co-respond
filed late appellant applies to have it struck out no
application by submitters for extension of time
COUNSEL: Mr Connor (solicitor) for appellant
Mr Chan (spouse of Director) for second co-respondent by
election
SOLICITORS: Connor OMeara for appellant
Second co-respondent by election self-represented
Reasons for Judgment
[1] This is an appeal brought under s 4.1.27(1)(c) of the Integrated Planning Act 1997
(IPA) in which the appellant by an application filed on 28 March 2008 seeks an
order that the second co-respondent by election, Beriley Pty Ltd be struck out as a
party to the appeal. The basis of the application is that Beriley was too late in
purporting to file its notice of election to co-respond on 22 J anuary 2008, having
regard to s 4.1.45 of the IPA:
4.1.45 How an entity may elect to be a co-respondent

An entity that is entitled to elect to be a co-respondent to the appeal
may do so, within 10 business days after notice of the appeal is given
to the entity, by following the rules of court for the election.

[2] The notice of the appeal referred to had to be given by the appellant under s
4.1.41(1)(a)(iv) and was given by a letter sent on 20 December 2007 (the day
following commencement of the appeal) which enclosed a copy of the notice of
appeal and purported to enclose a statement advising of your ability to become a
Co-respondent to the appeal. There was such a document enclosed, in terms
advising Beriley that it was entitled, as a submitter, to become a co-respondent to
the appeal. The mode of exercising that right was briefly identified as being filing
a Notice of Election in that behalf within ten business days after this notice is
3
served. In similar vein, the notice of appeal contained the endorsement in form
PEC-2 that:
If you wish to be heard on this appeal you must, within ten business
days of receipt of this notice of appeal, file an entry of appearance in
the Registry of the Court. The entry of appearance should be in the
form set out in form PEC-6 for the Planning and Environment
Court.

[3] Doubtless, a similar communication led to the Chief Executive, Department of Main
Roads filing a notice of election to co-respond in form PEC-7 on 14 J anuary 2008.
That notice was not late, having regard to the definition of business day now
included in Schedule 10 of the IPA which excludes any day between 26 December
of a year and 1 J anuary of the following year.
[4] Whereas the Chief Executive was in time, Beriley was not. Mr Connor, appearing
for the appellant, complained that Beriley was dilatory also in serving its election
to co-respond and entry of appearance in forms PEC-7 and PEC-6 respectively,
which came to Mr Connors firm on 8 February 2008. Nothing would appear to
turn on the time which elapsed in that regard. Another time limit which might be
noted, having regard to the reference to rules of court in s 4.1.45 is established by
rule 15 of the Planning and Environment Court Rules 1999, applicable by sub-rule
(1)(c) to a person not named as a respondent or co-respondent in a notice of appeal
who, under a law, is entitled to elect to become a co-respondent in the appeal and
wishes to be heard on the appeal. By subsection (2) such a person must:
(a) within ten days after being served with a copy of the
originating process, file an entry of appearance with the
registrar at the place where the application is to be heard;
and
(b) serve a copy of the entry of appearance on each other party.

[5] Mr Chan, the husband of a director of Beriley, represented the company at the
hearing of the appellants application. He tendered copies of documentation
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establishing that the couple were away from Australia at relevant times, having
departed Brisbane International Airport on a flight leaving about midday on Friday
14 December 2007 and returned on a flight arriving in the afternoon of Sunday 13
J anuary 2008. This material in exhibit 1 corroborates the assertion in the
companys letter of 31 March 2008, which Mr Connor had placed before the court,
to the effect that our office was closed from 15 December 2007 to 13 J anuary 2008
for Christmas break. From the companys point of view, notice of the appeal was
not given to it or served on it until, following the return of the Chans, it came to
their attention.
[6] The appellant cannot be faulted for proceeding as it did. The court having
expressed an interest in Berileys submission against the development application of
the appellant, exhibit 2 was tendered. It would provide a foundation for an
entitlement to become a party in the appeal; it advises the Council of the companys
interest in subdividing or reconfiguring its adjoining property in a way similar to
that proposed by the appellant; it raises concerns about drainage matters, road
patterns proposed and the apparent designation of roads on its land, among other
concerns. Speaking generally, the concerns are ones one would expect the Council
to take into consideration in deciding the development application in the context of
the likely future of the locality.
[7] The fate of the present application to the court depends on what is required by way
of service or giving of notice of an appeal. Mr Connor submits that that is to be
found in s 39A of the Acts Interpretation Act 1954:
(1) If an Act requires or permits a document to be served by
post, service
(a) may be effected by properly addressing, prepaying
and posting the document as a letter; and
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(b) is taken to have been effected at the time at which
the letter would be delivered in the ordinary course
of post, unless the contrary is proved.

[8] The preceding section permits service by post:
(1) If an Act requires or permits a document to be served on a
person, the document may be served-
(a) on an individual
(i) by delivering it to the person personally; or
(ii) by leaving it at, or by sending it by post,
telex, facsimile or similar facility to, the
address of the place of residence or business
of the person last known to the person
serving the document; or
(b) on a body corporate by leaving it at, or sending it by post,
telex, facsimile or similar facility to, the head office, a
registered office or a principal office of the body corporate.

[9] Mr Connor relied on the following passages in a judgment of the High Court in
Fancourt v Mercantile Credits Limited (1983) 154 CLR 87 at 95-97:
In the present case, the notices were not returned undelivered and
there was no other circumstance which suggested that they did not
reach their destination. Hence under s 39(1)(b) service is deemed to
have been effected at the time when the notices would have been
delivered in the ordinary course of the post.

Section 39(1) of the Acts Interpretation Acts is subject to the
expression of any contrary intention in the Act authorizing service of
a document by post.



As was observed by Tindal CJ in Bishop v Helps in relation to a
comparable provision, although leaving notices at a place of abode or
sending them through the post involve the possibility of non-receipt
by the intended recipient:
It was probably considered that the public convenience
would be promoted by the present provision, and that its
advantages would greatly outweigh the inconvenience
which, in some few cases, might possibly arise from it.



As the present case shows, delivery may be different from receipt by
the intended recipient and, provided that delivery is not disproved,
the fact of non-receipt does not displace the result that delivery is
deemed to have been effected at the time at which it would have
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taken place in the ordinary course of the post. There is here no
evidence of non-delivery.

[10] The post office box address used by the appellant is that indicated in the relevant
submission to the Council. No complaint was made about the address used. The
evidence before the court shows that the postal authorities effected delivery,
presumably in the ordinary course of post, by 24 December 2007.
[11] In my opinion, the whole system of submitters becoming co-respondents in appeals
such as the present bodes to become unworkable if the time limits which people
reasonably rely on are to be extended, perhaps without limit, until a communication
actually comes to the attention of some individual or other. In modern conditions, it
is not acceptable that an entity become effectively incommunicado and exempt from
service by closing its office or refraining from collecting mail at the address given
for delivery of mail for a month to provide the luxury of a holiday. It is necessary
that arrangements be put in place to receive important communications without
subjecting the senders of them to inappropriate delay. I am conscious of assertions
from the bar table by Mr Chan that persons having some connection with the
appellant might have had some idea the Chans would be away; I do not think that
affects the matter. The definition of properly made submission in Schedule 10 of
the IPA requires that the submitter give an address; there is little point in the
exercise if the address given cannot be used for service.
[12] As Mr Connor said, there will often be an answer to difficulties like those Beriley
has brought upon itself here in recourse to s 4.1.55 of the IPA to obtain an extension
of time. There was no application for an extension here, notwithstanding that, if
only at the hearing, Mr Chan (and his wife, who was in the back of the court and
acknowledged that) were given more than once a clear intimation of the possibility
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of seeking an extension of time. Mr Connor informed the court he was unaware of
authority bearing on the present question, noting that, in the court, s 4.1.55 is
usually brought in to play. Authorities on that section show that extensions of time
are not obtained simply for the asking. An example of a failure of an application of
the kind Beriley might have made failing is King v Charters Towers City Council
[2004] QPELR 51.
[13] I am unable to distinguish the present situation from that where an adverse
submitter appeal is begun out of time. The issue is whether assertion of intention to
argue against a development application must be made by filing a timely document
in the court dilatory submitters had their appeals struck out or dismissed in
Kangaroo Point Residents Association v Brisbane City Council [2006] QPELR 471
and Mitchell v Brisbane City Council [2006] QPELR 798 on application by the
developer. Unlike the defeated submitter appellants in those matters, Beriley has
the opportunity to try to persuade the respondent or first co-respondent by election
to espouse its concerns in a continuing appeal.
[14] There will be an order in terms of the initialled draft, which mirrors the relief sought
in the application.