ABC Developmental Learning Centres Pty Ltd v Pine Rivers Shire Council

[2007] QPEC 38

PLANNING & ENVIRONMENT COURT

OF QUEENSLAND

CITATION:	ABC Developmental Learning Centres Pty Ltd v Pine Rivers Shire Council & Ors [2007] QPEC 038
PARTIES:	ABC DEVELOPMENTAL LEARNING CENTRES PTY LTD ACN 010 788 502
Appellant V
PINE RIVERS SHIRE COUNCIL
Respondent And
MARK PERRY ARCHITECTS
First Co-Respondent And
STATE OF QUEENSLAND
Second Co-Respondent
FILE NO/S:	BD1725/2005
DIVISION:	Planning and Environment
PROCEEDING:	Application for costs
ORIGINATING  COURT:	Planning and Environment Court of Queensland, Brisbane
DELIVERED ON:	2 May 2007
DELIVERED AT:	Brisbane
HEARING DATE:	23, 27 April 2007
JUDGE:	Alan Wilson SC, DCJ
ORDER:	Application for costs dismissed
CATCHWORDS:	PLANNING – PLANNING LAW – COSTS – COSTS OF PROCEEDING – Integrated Planning Act 1997, s 4.1.23 – discretion to award costs – whether proceedings instituted merely to delay or obstruct – whether proceeding or part of proceeding frivolous or vexatious – whether default in observation of court’s procedural requirements Integrated Planning Act 1997, s 4.1.23
Cases considered: Dawson v Maroochy Shire Council [2004] QPELR 254 Hall v Nanango Shire Council [2006] QPELR 278 Mudie v Gainriver Pty Ltd (No. 2) [2003] 2 Qd R 271 O’Connor v Herberton Shire Council [1998] QPELR 485 Oakden Investments Pty Ltd v Pine Rivers Shire Council [2003] QPELR 333 R D Williams Tractors Pty Ltd v Queensland [1998] QPELR 26 Reelaw Pty Ltd v Queensland Heritage Council [2005] QPELR 335 Walsgott v Maroochy Shire Council [2005] QPELR 521
COUNSEL:	R Litster for respondent/appellant M Howard for first applicant/first co-respondent
SOLICITORS:	Dibbs Abbott Stillman for appellant First applicant/first co-respondent self represented

1. This matter, involving an application for costs by the first co-respondent, was originally heard on 23 April 2007. The parties were advised that judgment, with Reasons, would be delivered at 9.15am on 27 April 2007. On 26 April 2007, Mr Howard, representing the first applicant/first co-respondent, sent an email to my Associate raising, and seeking to introduce, what was said to be new material which could affect the decision in the application. When the judgment was called on at 9.15 on 27 April 2007 it was stood over until later in the morning.

2. During submissions at that later time, Mr Litster, Counsel for the appellant, fairly categorised what was sought as an application by the first co-respondent for an adjournment of his earlier application (the original application for costs) so that new material might be obtained. For reasons which follow, I am not persuaded an adjournment is necessary, or appropriate.

3. In April 2005 Pine Rivers Shire Council (“the Council”) allowed an application by the first co-respondent to develop a childcare centre on land at 47 Old Dayboro Road. Petrie. The appellant, ABC Developmental Learning Centres Pty Ltd (“ABC”), had lodged a submission opposing the development application and, following Council’s approval notwithstanding that submission, brought this appeal in May 2005.

4. The appeal was listed for hearing in this court commencing on 30 March 2007. The appellant signified on that day that it would consent to an order dismissing the appeal. The co-respondent, represented by Mr Howard, indicated a wish to seek costs against the appellant. Directions about an exchange of affidavit material between those parties, concerning the claim for costs, were given by his Honour Judge Rackemann and the matter was listed for hearing on 23 April 2007. Council and the second co-respondent were excused from attending at that hearing.

5. Mr Howard is not, I understand, a member of the firm of architects shown as the first co-respondent. Two firms of solicitors have previously acted for that party but the second withdrew in early November 2006. No notice appointing Mr Howard or Ms Wilhemina Howard, who has also played an active part in the proceedings, has ever been filed but Mr Litster of counsel, for the appellant, sensibly indicated no point would be taken about that aspect of the matter.

6. Mr Howard filed an affidavit and sent written submissions signifying the claim for costs was advanced in reliance upon s 4.1.23(2)(a), and (b) of the Integrated Planning Act 1997 (IPA), which relevantly provide:

   4.1.23

(1)

Each party to a proceeding in the court must bear the party’s own costs
for the proceeding.

(2)

However, the court may order costs for the proceeding (including allowances to witnesses attending for giving evidence at that proceeding) as it considers appropriate in the following circumstances –

(a)	The court considers the proceeding was instituted merely to delay or obstruct;
(b)	the court considers the proceeding (or part of the proceeding) to have been frivolous or vexatious;

…

1. Mr Howard’s submissions about s 4.1.23(2)(a), and his affidavit, were directed towards two matters: first, a general complaint that ABC, said to be the largest childcare centre operator in Australia and a potential rival of the co-respondent’s proposed development, submitted its appeal merely to delay the development for as long as possible with the goal, ultimately, of forcing the respondent to discontinue it. The second complaint related particularly to alleged delay in the proceedings between the making of an amended Directions Order by Rackemann DCJ on 10 November 2006, continuing through to the day the appeal was due to commence on 30 March 2007.

2. Mr Madden, the solicitor for ABC who has carriage of the matter, has also filed a lengthy affidavit disputing some of Mr Howard’s claims about the causes, and circumstances, of some of the delays in procedural steps involving the exchange of expert’s reports, expert’s meetings and the like. Neither party required the other for cross-examination, and I am unable to resolve where the blame for these delays, if any, might lie.

3. The delays complained of also have to be considered, however, in the context of general delay in the course of the proceedings including, in particular, the first co- respondent’s failure to take any steps until late in 2006 to advance the appeal. The parties first appeared in court in August 2005 seeking directions, but no order was made. It was not until the second part of 2006, when the appellant’s solicitors complained, that the first co-respondent took steps to meet its obligation to file an affidavit establishing compliance with public notification requirements under Ch 3 Pt 4 of IPA. On 6 September 2006 further directions were made about the conduct of the matter, including an order that it be listed for hearing for three days in the court’s sittings in December 2006. The parties exchanged lists of documents but there arose, then, a further dispute about the adequacy of the first respondent’s disclosure; and, the notification, by the appellant, of further issues in the appeal.

4. On 10 November 2006 Rackemann DCJ gave further directions. It was ordered that the appellant answer a request from the first co-respondent for further and better particulars by 22 November 2006; that on or before 1 December 2006 the parties exchange lists specifying the names and fields of expertise of each expert they would retain; that those experts meet on or before 15 December 2006; that the parties hold “without prejudice” meetings in December 2007 and January 2007; and, that the matter be placed in the February 2007 sittings. Subsequently on 19 January 2007 this order of events was again changed, and the matter was moved to the March 2007 sittings.

5. The first co-respondent’s principal complaint is that these various steps were delayed, without satisfactory explanation and, it may be inferred, mischievously, by the appellant. Mr Madden, for the appellant, denies these things and offers plausible explanations, in his lengthy affidavit, for the delays which actually occurred. As noted earlier I am unable to resolve these questions, which descend to matters of credit but are presently mere untested assertions. It is to be noted, however, that the delays since November last year have not been lengthy and cannot be described, in the ordinary hurly-burly of proceedings in this court, as either surprising or inordinate.

6. The meaning and effect of s 4.1.23 generally, and some of its sub-sections in particular, were considered in Walsgott v Maroochy Shire Council [2005] QPELR 521. The cases traversed in that decision included the judgment of Quirk DCJ in Oakden Investments Pty Ltd v Pine Rivers Shire Council [2003] QPELR 333 in which his Honour said, at 334:

   The operative word is “merely”. A sensible interpretation of the sub-section would indicate that it contemplates an absence of any real merit in the appellant’s case (or a basis for belief on the appellant’s part in the presence of some such merit). A desire to delay or obstruct a project would not, in itself, be enough.

7. In Dawson v Maroochy Shire Council [2004] QPELR 254 Dodds DCJ observed, at 256:

   The discretion to make a costs order exists only in limited circumstances. The circumstances in s 4.1.23(2)(a) IPA requires not just that the person instituting the proceedings have a desire to delay or obstruct but that was their only purpose.

8. In Walsgott it was said, at 524:

   [11] Raising serious questions in a proceeding may not raise a shield against the operation of the sub-section. Nor can it be allowed to mask an applicant’s true motive; but when, as here, the applicant can show that real issues surround its application, the conclusion that its sole motive was delay or obstruction is not readily reached. When genuine issues are manifest it may be relatively easy for an applicant, in a matter of this kind, to show “public interest character” of the kind mentioned in Mudie.[1]

   [1]         Mudie v Gainriver Pty Ltd (No. 2) [2003] 2 Qd R 271.

9. Affidavits filed on the appellants behalf show that it retained experts in a number of disciplines, and those experts attended meetings with experts in the same disciplines, retained on behalf of the co-respondents; and, joint experts’ reports were prepared in late January 2007. That evidence also establishes that the experts were largely able to reach agreement about matters raised in the appeal, save for the terms of any conditions relating to the hours of operation. Eventually, although the evidence is not entirely clear, it seems the appellant resolved to abandon all arguments about proper conditions, and the appeal itself.

10. The sub-section looks to the institution of the proceedings but there is no good reason to construe the phrase “… was instituted merely to delay or obstruct” as involving a sole, or primary focus upon the appellant’s motives in beginning the proceedings. Rather, as the cases already mentioned appear to accept, the appellant’s conduct ought fairly to be looked at on the wider canvass of the appeal proceeding itself. That construction is supported by the introductory words in sub- section (2) which extend the ambit of a potential costs order to include costs of witnesses who attend to give evidence.

11. Sub-section (2)(a) is often likely, it might be thought, to present some hurdles to a party seeking to rely upon it because of the implied requirement to establish motive – in effect, to lift the veil of the proceedings themselves and show that what lies beneath is wholly, or in the main, an intention to delay or obstruct. Certainly, when the legislation permits any person to make a submission (s 3.4.9)[2] and then gives submitters a right to appeal (s 4.1.28), it will be a rare case in which the mere fact of an appeal itself will be sufficient evidence, without anything else, of conduct which offends the sub-section.

    [2]            See ‘Planning and Development Queensland’, Fogg, Meurling and Hodgetts, para [3705]

12. The evidence here falls short of establishing the proceeding should attract the operation of the sub-section. Despite ABC’s position as a competitor, it was lawfully entitled to appeal, and the history of the action itself is not redolent of the kind of improper motive against which the provision turns its face. The proceeding was, from time to time, advanced by ABC in the face of dilatory conduct on the part of the first co-respondent; the original submission raises legitimate grounds for objection; the notice of appeal has the same qualities; and, the progress of the appeal itself (while a little disorganised from time to time) does not suggest conduct based upon some improper motive – in particular, a motive founded in nothing more than a desire to delay, or obstruct. The fact the appeal eventually collapsed can be ascribed to the evaporation of issues but, again, that is not an uncommon event in this jurisdiction after experts undertake the processes prescribed by Practice Direction 1 of 2006.

13. For these reasons the first co-respondent has failed to persuade me that it is proper to find the proceeding was instituted merely to delay, or obstruct.

14. As to s 4.1.23(2)(b), in Mudie (supra) McMurdo P and Atkinson J said at 204:

    Unquestionably, something much more than lack of success needs to be shown before a party’s proceedings are frivolous or vexatious … where the proceedings are vexatious or oppressive will turn on the circumstances of the case and will include public policy considerations and the interests of justice.

15. Other decisions of this court show that before proceedings will be categorised in this way they must be clearly seen to be manifestly groundless; and, they will not usually be so classified if they are not groundless, superficial, or devoid of merit[3].

    [3]           R D Williams Tractors Pty Ltd v Queensland [1998] QPELR 26; O’Connor v Herberton Shire Council [1998] QPELR 485; Dawson v Maroochy Shire Council (supra); Reelaw Pty Ltd v Queensland Heritage Council [2005] QPELR 335

16. In Hall v Nanango Shire Council [2006] QPELR 278, McLauchlan QC, DCJ said at 279:

    Various cases have referred to the definition of these words (frivolous or vexatious) in the Macquarie Dictionary, and the shorter Oxford Dictionary. There is, in my view, no necessary connotation of deliberate conduct in these expressions. Rather it is a question of whether the proceeding or part of it, including the conduct therefore by the relevant party, should be seen upon an objective examination to have been frivolous or vexatious, that is, characterised by a lack of seriousness or sense, or vexing or annoying. That would normally involve conclusions about the proceeding itself, and about the conduct of the party concerned in relation to the proceeding.

17. Mr Howard’s complaint under this head focuses upon ABC’s ultimate failure to adduce evidence from noise or traffic experts which showed any meaningful error on Council’s part in approving the development application. He says “… none of the appellant’s concerns have been substantiated as being of real concern”. Against that, however, the history of the matter and the issues it involved (which have already been traversed) do not suggest the appellant’s submission or grounds of appeal were unarguable, superficial, or devoid of merit.

18. It is possible they were not strong (and could never have been described as strong) but they were tested in the fire of experts’ meetings and reports and while it seems they were, figuratively, consumed by that flame, that does not automatically mean they can have the adjectives used in sub-section (2)(b) attached to them. The relief is discretionary, and the various circumstances set out in sub section (2) must be considered in the light of the fundamental premise about costs in this jurisdiction contained in sub-section (1)[4]. This is not a case where it would be fair to categorise ABC’s conduct as frivolous or vexatious.

    [4]            Wallsgott v Maroochy Shire Council (supra) at 523, para [4] and [5].

19. Although the matter was not argued by Mr Howard, the fact he was self represented means it is also appropriate to consider whether or not a remedy might have been available to him under s 4.1.23(2)(e), which attracts the discretion to award costs where “… a party has incurred costs because another party has defaulted in the court’s procedural requirements”. The history of the appeal, discussed earlier, shows some failures on the part of the appellant to meet the requirements of Directions Orders, but that occurred in circumstances where the first co-respondent was also, it appears, responsible from time to time for delays and failures and non- compliance. As previously remarked, the dispute about responsibility for these delays involves untested claims and counter-claims about fault; and, again, the appeal ultimately came to a hearing within a reasonable period and with delays which are not uncommon, or surprising.

20. The new material Mr Howard sought to introduce on 27 April 2007 relied upon a document which had apparently been in the possession of the first co-respondent since August 2005. The order of his Honour Judge Rackemann on 30 March 2007 provided a timetable, up to 20 April 2007, for the filing and serving of any affidavit material upon which any party intended to rely at the hearing of the costs application. Mr Howard filed an affidavit on 10 April 2007 which does not mention the matter he now wishes to raise.

21. The document he now presents merely suggests that another company which had expressed an interest in the site some time ago may be connected with the appellant. The first co-respondent seeks more time to investigate that possibility. An affidavit filed by leave on behalf of the appellant on 27 April 2007 shows, however, that while this other company has been engaged to build centres for ABC, they are not otherwise affiliated.

22. The further enquiries Mr Howard seeks time to make are intended to support, it is said, a possible submission that if the first co-respondent had awarded a lease of the site to this other company, the appellant would have discontinued the appeal. That submission would support, it is further said, the first co-respondent’s contentions under s 4.1.23(2)(b). It plainly rests, however, on a chain of nebulous things. Firstly, it is unclear whether the allegations said to support it can, in fact, be made out. Secondly, the limited evidence said to warrant further investigation has been produced very late, and in contravention of clear directions from the court. Ultimately, even if these two hurdles are overcome, it remains doubtful that the submission would avail the first co-respondent in its attempts to establish grounds under sub-section (2).

23. Even if a close commercial connection between ABC and this other company was shown to exist the first co-respondent would yet have to establish, on the balance of probabilities, that the connection could only reasonably be viewed as pointing to one outcome, or course of events: ABC abandoning its appeal. Then the Court must be persuaded this is a sound, and just, basis for a finding the proceedings offend s 4.1.23(2). The various components of the submission and the links between them are all too uncertain, and tenuous. When, as here, it is unclear if they can ever be made out, and they have also been raised at a very late hour, they do not warrant a further adjournment of the application.

24. For these reasons the first co-respondent’s application is dismissed.