Proctor : August 2019
5 PROCTOR | August 2019 NEWS BY MICHAEL CONNOR Court addresses noncompliance Practice Directions 1 and 2 of 2019 Practice Direction 1 of 2019 (PD1) and Practice Direction 2 of 2019 (PD2) took effect in the Planning and Environment Court (PEC) on 10 May 2019. While practice directions in the PEC are not new, the reasons for the adoption of PD1 and PD2 are both noteworthy and important to those who practise in the court and the profession more widely. Indeed, members of the PEC took the opportunity of addressing members of the profession about the genesis of the practice directions on 11 June 2019. Having identified that the court’s clearance rates – number of proceedings filed as compared to the number of proceedings finalised – was in decline, some troubling features emerged. The areas of concern, revealed by the investigations, spanned essentially two areas. • Parties use, or perhaps misuse, of the ADR Registrar’s powers to make orders or adjourn proceedings on multiple occasions, vacate orders made by a judge and make orders by consent when the parties knew, or should have known, the agreed orders were not appropriate for the ADR Registrar (who is not legally qualified) to make. • Increased evidence of parties’ noncompliance with orders of the court, compounded by the fact that parties were not drawing that noncompliance to the court’s attention, which had the effect that proceedings were not ready to proceed to hearing as schedule. Those areas of concern produce a number of unsatisfactory outcomes: a. Parties’ non-compliance with their implied undertaking to the court. b. Scarce court resources were wasted, because proceedings were not ready to be heard in the assigned months. c. Some parties seemed to approach orders and directions as aspirational rather than obligatory, and overlooked the fact that noncompliance could amount to contempt. d. Noncompliance was not isolated, occurring in some proceedings on multiple occasions, with the court being asked to remake orders only to see the new orders not complied with. Those unsatisfactory outcomes seem to have a direct link to the court’s experience that appeal hearings were not finishing in the time estimated by the parties and allocated by the court. Also, insufficient thought was being given to defining the real issues in dispute, with the court’s time being diverted to deal with peripheral issues. PD1 and PD2 are the court’s response to those concerns and while many features of the practice directions are familiar, some new or recast features deserve special mention. Practice Direction 1 of 2019 PD1 provides for case management procedures for all proceedings in the PEC, and repeals and replaces Practice Direction 1 of 2018. Some features of PD1 (some old and some new) should be noted: a. Once filed, parties have no longer than six weeks to apply to the court for directions about the conduct of the proceedings. b. For appeals concerning development applications requiring impact assessment, evidence is no longer required about compliance with the notification stage. c. A typical directions order would include: i. an estimate of the likely duration of the hearing and, if that estimate exceeds seven days, those proceedings will be case-managed by an assigned judge ii. a requirement to prepare a hearing schedule. d. Establishing a process by which orders, other than final orders, agreed by the parties can be made without appearances, by a judge. e. At any review, the parties must inform the court about the extent of compliance with earlier orders and practice directions. f. If at the pre-callover review it is apparent that the parties have not complied with orders and directions, the proceedings will be removed from the callover, unless exceptional circumstances are demonstrated. g. A requirement for the parties to prepare and agree on (if possible) a concise list of issues in dispute and provide that list to the court at the start of the hearing. Practice Direction 2 of 2019 PD2 provides for the power of the ADR Registrar to make orders or issue directions, and repeals and replaces Practice Direction 2 of 2018. The powers of the ADR Registrar have been adjusted and reduced so that while the ADR Registrar can still make orders and directions, the opportunity for misuse by parties is minimised. PD2 makes it clear that the powers of the ADR Registrar no longer extend to a range of matters identified in paragraphs 5 and 6. Some comments The efficient operation of courts in Queensland is a matter of considerable public interest. The adoption of PD1 and PD2 is a timely reminder to parties and those that represent them of the important role that parties play in an efficient outcome in the PEC. QLS Ethics and Practice Centre Director Stafford Shepherd adds: Some of the actions or omissions described in this article are disturbing in that they show a disregard for our paramount duty to the administration of justice. Our role as an advocate is to serve our client’s best interest and to secure the most appropriate remedy. Dishonest representation does not advance our client’s interests; indeed, it hinders and obstructs. We have an obligation to maintain our integrity and professional independence. Any member of a tribunal should expect the advocate to be well prepared and to set out the representation in a transparent and cogent way. Michael Connor is a partner at Connor O’Meara Solicitors and Chair of the QLS Planning and Environmental Law Committee.