(Rackemann DCJ - 6 June 2013)

Planning and environment – submitter appeal – application in pending proceeding by Co-Respondent seeking various orders including of an injunctive kind – submitter Appellant seeking donations to litigation fund – whether in breach of the Collections Act 1996 – whether letter requesting donation misleading – whether abuse of process

Collections Act 1966 (Qld), s 10

Facts: This was an application in pending proceeding filed by the Co-Respondent developer seeking various orders against the submitter Appellant, Robert Friend.

The appeal itself was against Council's decision to approve a development application for three residential towers and associated retail facilities near the Chalk Hotel at Woolloongabba.

The orders sought in the developer's application were, in summary:

  1. that Mr Friend be restrained from publishing misleading statements about the appeal;
  2. that Mr Friend be restrained from continuing an appeal to the public for money for costs associated with the appeal;
  3. that Mr Friend be restrained from dealing with collected monies except in accordance with a Court order;
  4. that Mr Friend refund all moneys collected; and
  5. that Mr Friend pay the developer's costs of the application.

The developer had taken issue with a letter Mr Friend sent to a submitter to the development application who had not elected to institute an appeal. The letter sought a donation by way of a deposit into a bank account. The developer submitted that the letter constituted an unlawful appeal for support contrary to s 10 of the Collections Act 1966. Section 10 of the Act prohibited the making of an appeal for support to the public for, amongst other things, a community purpose, unless that purpose was sanctioned by the Act. There was no relevant sanction in this case. A breach of s 10 was an offence. The developer also submitted that the letter was not just a breach of the Act but also an abuse of process of the Planning and Environment Court. It further complained that the letter was misleading as it contained inaccuracies in relation to the parties to the appeal, the purpose of the appeal, Council's consideration of submissions made about the development application and whether approval of the application would set a precedent for the area.

Mr Friend submitted that the letter was not sent to someone in their capacity as a member of the public and that even if the letter was an invitation to the public to obtain money, it was not for a community purpose but was for a fund that would be used to pay legal and other expenses associated with the appeal.

Decision: The Court held, in dismissing the application in pending proceeding, that:

  1. It was not the role of the Planning and Environment Court to enforce the Collections Act 1966. There was a statutory regime for that.
  2. The relief sought by the developer included injunctive-style relief to remedy any past breach of the Collections Act 1966 and restrain any future breach of that Act. That was not something which the Planning and Environment Court would ordinarily have the jurisdiction to consider.
  3. Modern Courts had adopted a more liberal attitude towards the support of litigation by third parties than had previously been the case.
  4. The Courts had come to recognise the problems which face the ordinary litigant in funding litigation and gaining access to the Courts and are now tolerant of a wider range of commercial litigation funding arrangements.
  5. Even if the orders sought by the developer were an available and potentially appropriate response to an abuse, it was difficult to see what corrupting or otherwise prejudicial effect such funding would have on the proper administration of justice. Its effect would likely simply assist Mr Friend in being able to have his appeal determined on its merits.
  6. It was the protection of the broader public which was the evident purpose of the Collections Act 1966, rather than the protection of a developer party to an appeal in the Planning and Environment Court. There was no evidence that anyone had been materially misled. Mr Friend's conduct did not create a manifest unfairness to the developer or bring the administration of justice into disrepute among right minded people. The level of any inaccuracy in the letter did not lead to a conclusion that the process of the Court was being abused at all, let alone being abused in a way that would justify the orders sought.

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