Burns v State of Queensland [2004] QSC 434

The applicant had decided to sell her land, and in order to maximize the sale price, to substantially clear it first.  For that purpose, it was necessary that she secure a development permit, but it was refused. She then appealed against the refusal to grant the permit, to the Planning and Environment Court, and the appeal was dismissed. David Walter had been conducting the appeal proceedings on Mrs Burns’ behalf, advising her, obtaining her signature on relevant documents, preparing the contents of supporting documents and arguments, and filing documents.  The original Notice of Appeal to the Planning and Environment Court was signed by both Mrs Burns and David Walter, and advises that Mrs Burns asks that Mr Walter, “who wrote my appeal that is now lodged before this Court”, be allowed to act as “a Friend of the Court at the time of my appeal on my behalf.”  That did happen, as the transcript of the proceedings in the P & E Court records that Mr Walter appeared as her agent.

The applicant then appealed further, to the Court of Appeal. In Burns v State of Queensland [2004] QSC 434 she raised a number of matters which come down to a challenge to the State’s legislative power to impose this requirement, and the Planning and Environment Court’s jurisdiction to hear the appeal, and that upon acquiring the land, “it became Commonwealth land, owed by a citizen of the Commonwealth”; so that the Planning and Environment Court had no jurisdiction in respect of it. David Fitzgibbon of counsel, who appeared for Mrs Burns, described Mr Walter as having done an incredible amount of work on the matter, although the matters raised were substantially the same as those contended for in the Notice of Appeal.

An application for an extension of time within which to appeal the Chief Justice’s decision was filed and heard in Burns v State of Queensland and Croton [2006] QCA 235.  The 61 page outline of argument was also filed and prepared by Mr Walter, but none of the extensive written arguments show any grounds for holding that de Jersey CJ was wrong in his reasons for judgment of 19 November 2004, or the orders he made. The application for an extension of time within which to appeal was dismissed.

The State of Queensland made an application for indemnity costs in this matter, or in the alternative costs assessed on the standard basis, but not against the unsuccessful applicant Catherine Elizabeth Burns, but sought only an order for costs against the person who had prepared her application and appeal, David Walter. The principal judgment describes the significant role Mr Walter took in the proceedings involving Catherine Burns and the State of Queensland.  Mr Walter was not given leave on the hearing of the appeal to appear on behalf of Catherine Burns, which leave he had sought, but had submitted extensive written arguments on her behalf, prepared by him. The judgment in Burns v State of Queensland & Croton [2007] QCA 240 details the previous cases in which Mr Walter had raised the same argument on behalf of litigants, thus exposing them to costs orders incurred arguing against the essential proposition established by the decision of this Court in Bone v Mothershaw. Although it agreed with his negligence, the court dismissed the application for costs against Mr Walter as he had allegedly obtained no financial benefit from his involvement. This was later overturned in Burns & Ors v Cassowary Coast Regional Council (unreported, Supreme Court, Cairns, P Lyons J, 27 April 2010) where the court ordered him to pay the costs.

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