MAJOR COURT WIN FOR BRIBIE ISLAND ENVIRONMENTAL PROTECTION ASSOCIATION
By Len Baglow President, BIEPA
On September 22, 1998 Justice Robin of the District Court in Queensland announced that an appeal by BIEPA against a rezoning decision of Caboolture Shire Council had been upheld. The victory was particularly sweet because BIEPA took on the Council and the developer in Court without the benefit of a Barrister or Solicitor in the Court. Even many of our supporters thought we were mad and that we didn't have a hope. Our great thanks to the EDO office which gave us encouragement that we could win as well as lots of practical legal advice in the preparation of our case.
The case involved a 37.31 ha block of land on Bribie Island known as Lot 402. Lot 402 formed part of a larger block on Bribie Island that had the highest conservation rating, (according to the Caboolture Shire's Atlas of Natural Assets), of any block in the Caboolture Shire. It was effectively a mosaic of Eucalyptus open forest, Melaleuca quinquinervia open forest/woodland, Banksia aemula woodland and wet wildflower heath. It drained into Shirley Creek which in turn drained into the Pumicestone Passage.
The battle for this block had been going on for years. The developer first applied in the late 1980s. Even at that time the majority of the land fell within the Open Space designation of the Strategic Land Use Plan. At the time of the 1993 review of the Caboolture Shire Strategic Plan there was intense lobbying by the developer and most significantly by the Lands Department to have the block placed totally in the urban zone.
In its submission on the Strategic Plan, BIEPA strongly supported the public open space designation for this and the adjacent blocks. The Council of the day decided to retain the majority of Lot 402 in public open space but agreed to a request by the Department of Lands that a clause be added stating that "In the Bongaree to Woorim area the extent of the Open Space designation may be subject to review and parts may, in any future Strategic Land Use Plan, be indicated as residential after more detailed planning and assessment is undertaken."
Jural No. 11 Pty Ltd lodged a development application to change the planning scheme with respect to the land.
Without waiting for a "future Strategic Land Use Plan" a new group of Councillors advised by new town planners and encouraged by the Department of Natural Resources decided to approve the application and change the designation of the majority of Lot 402 to the urban designation.
When our formal objections were ignored, we somewhat reluctantly decided to lodge an appeal in the Planning and Environment Court.
Hints at winning in court without a barrister or solicitor:
1. Make sure you have a good clear legal case to begin with.
Get legal advice on this before, you begin. Having a strong moral case is not the same as having a strong legal case. You also, will need good legal advice along the way concerning the process of Court and the various protocols that need to be adhered to. We used the Environmental Defenders Office for this.
2. Be prepared to put in a huge number of person hours into the project.
You need a team. One person cannot do it by himself or herself. We had the initial team of 2 in court - supported by a wider team of about 10 who helped with various tasks - supported by another 20 who gave practical support - supported by another 70 who gave financial help.
Because it is a team effort you must spend time on team issues to ensure that your effort doesn't fragment and you become unfocussed.
Find good expert witnesses.
These are the linchpins of any case. Without good expert witnesses you cannot win. Expert witnesses are more important than barristers.
We had five - four of them gave of their time freely and the fifth and at a greatly reduced rate.
Early on develop a clear idea about what the case is about and stick to it.
The law (particularly the opposing Barristers and Solicitors) has a way of confusing even the most simple of issues. Incorporate your clear idea of your, argument in your Notice of Appeal. Get legal assistance to write this Notice of Appeal.
Beg, borrow or steal (even rent or buy) a photocopier.
Courts generate huge amounts of paper. We estimate we made over 10,000 copies.
Manage your anxiety.
Running your own case in court is like teaching yourself to fly by reading the manual. It can be done. We've proven it, but it is hair raising. The other solicitors will attempt to tire, harass and intimidate you. Be calm. (We got five intimidatory fares in one day)
If in doubt get legal advice. The other side will certainly hint that you will be up for Court costs. Cheek out what the costs provisions are before you begin and then stay calm and continue to prepare your case.
7. Early on try and get clear what the order of the case will be.
It does make a difference as to whether you are presenting first, second or last.
8. Visit the Court before your case begins and watch other similar cases.
You can feel your anxiety level dropping as you get more used to the Court.
9. Prepare your Opening Submission and fatal submission well.
Ideally, have them typed out before hand so that you can hand them to the Judge. Easier said than done but vitally important. Good written submissions help to counter the advantage that Barristers have because they are good on their feet.
A good solid written submission, that you have also made orally to the Court, is hard to shake.
In our case the order of final submissions was the reverse of the order of the opening submissions. (Just to confuse the uninitiated). Also in our case Justice Robin gave us an opportunity to reply to the final submissions of the opposition. This caught us by surprise and we didn't 'take up the opportunity. In the end it didn't make any difference, but in an- other case it might have.
10. Purchase copies of the court transcripts each day.
These are invaluable in examination and cross-examination and in preparing the final submission. They are expensive at $2.40 a page. We bought about 250 pages. Overall, including all expenses, the Case cost us about $4,500.
11. Make sure you have 5 copies of every piece of evidence you will need to present well before you are in the Court - one for the Judge, one for the witness, one for the Council, one for the developer, and one for you, (One of the reasons you need the photocopier).
Develop a system so that you can find them when you need them. In court have a small team to record the Exhibit numbers the Judge gives to your pieces of paper and every other piece of paper that is presented in evidence.
12. As part of your Court team have at least one runner who can do last minute photocopying, look for lost witnesses and generally ensure that your pieces of paper are there when you need them.
13. Get advice from a solicitor and barrister on the techniques of presenting in Court.
EDO Solicitor Jo Bragg, Solicitor Lesley King and Barrister Mark Hinson helped us greatly in this regard.
14. Spend time with your expert witnesses so they know exactly what is being asked of them.
Ensure that they are well acquainted with the particular site. When the expert witness reports are ready, check that there are no minor errors, and check also that the various reports form a coherent whole.
Before Court, prepare the witnesses for questions you are going to ask, and ask them what areas they feel you should ask them about.
Never ask a question, even of your own witnesses, to which you don't know the answer that will be given. (We did this only once during the hearing -never again).
Prepare your witnesses for hostile questions from the opposing barristers. One of the op- posing barristers in our case had a standard technique of making his third question a shouting accusation. The accusation seemed to have little relevance but seemed to have been intended to unsettle the witness.
Think about the more serious questions that the opposition will ask and have your witnesses prepared.
15. The point of your expert witnesses is to give evidence to prove your case.
Don't try and prove you r case through the opposition's expert witnesses if you do not have an expert in the same field. All you do is give them extra time to talk about their own case.
In cross-examination look for mistakes and errors in fact, inconsistencies and faults in logic. However, primarily use your own expert witnesses to attack the, opposition's expert witnesses.
16. Throughout the case Justice Robin and his associate were tremendously courteous. This was reassuring for complete new- chums in the Court.
1 7. Presenting statistics in Court is not easy.
In hindsight we should have had our figures from the Australian Bureau of Statistics certified. (This costs $100) The ABS actually advised us not to certify as the figures we were using were from standard documents. However, the situation became complicated when the Council on a couple of occasions used ABS figures from an entail facility that were wrong. In this situation it was not easy to convince a Judge that our figures were right and the opposition's figures were wrong. It would have much simpler if our figures had been certified.
18. Retain a sense of humour.
[Len Baglow, together with Jack Baker, ran the Appeal on behalf of Bribie Island Environmental Protection Association]
Reproduced with permission from Environmental Defenders Office Newsletter Issue 15 December 1998 pages 7 to 10 and Len Baglow of The Bribie Island Environmental Protection Association.
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