Baxter v Preston (No. 2) - [2023] QPEC 37

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Baxter v Preston & Ors (No. 2) [2023] QPEC 37

PARTIES:

STEVEN JOHN BAXTER

(Applicant)

v

ANTHONY STEVEN PRESTON AND KYLIE ANNE PRESTON

(First Respondents)

and

GRAYA CONSTRUCTION PTY LTD (ACN 158 362 406)

(Second Respondent)

and

BRISBANE CITY COUNCIL

(Third Respondent)

FILE NO/S:

932 of 2021

DIVISION:

Planning and Environment

PROCEEDING:

Application for costs

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

29 September 2023

DELIVERED AT:

Brisbane

HEARING DATE:

12 September 2022

JUDGE:

Williamson KC DCJ

ORDER:

1.     THE APPLICATION FILED 17 DECEMBER 2021 IS ALLOWED IN PART.

2.     THE APPLICANT PAY THE FIRST RESPONDENTS’ COSTS OF THE PROCEEDING ON AND FROM 15 JULY 2021 UP TO AND INCLUDING 9 DECEMBER 2021, ASSESSED ON THE INDEMNITY BASIS.

3.     THE APPLICANT PAY THE FIRST RESPONDENTS’ COSTS OF THE APPLICATION FILED 17 DECEMBER 2021.

4.     THE APPLICANT PAY THE SECOND RESPONDENT’S COSTS OF THE PROCEEDING ON AND FROM 15 JULY 2021 UP TO AND INCLUDING 9 DECEMBER 2021, ASSESSED ON THE INDEMNITY BASIS.

5.     THE APPLICANT PAY THE SECOND RESPONDENT’S COSTS OF THE APPLICATION FILED 17 DECEMBER 2021.

6.     THE BALANCE OF THE APPLICATION FILED 17 DECEMBER 2021 IS DISMISSED.

CATCHWORDS:

PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – COSTS – where Originating Application seeking declaratory and consequential relief – where Originating Application was opposed by the respondents – where Originating Application dismissed – whether the proceeding was frivolous or vexatious – whether the proceeding was instituted, and maintained, for an improper purpose – whether the applicant introduced new material – whether the power to award costs under s 60(1) of the Planning & Environment Court Act 2016 is enlivened – whether the discretion to make an order as to costs should be exercised – whether costs should be assessed on an indemnity basis.

CASES:
Baxter v Preston & Ors [2022] QCA 146
Baxter v Preston & Ors [2023] QPELR 244; [2021] QPEC 69
Mudie v Gainriver Pty Ltd (No. 2) [2003] 2 Qd R 271
Sincere International Group Pty Ltd v Council of the City of Gold Coast (No. 2) [2019] QPELR 662

LEGISLATION:
Planning Act 2016 s 46
Planning and Environment Court Act 2016 ss 59 & 60
Planning and Environment Court Rules 2018 r 8(1)

COUNSEL: Mr A Skoien with Mr J Moxon for the Applicant/Respondent
Ms S Hedge for the First and Second Respondents/Applicants
No appearance for the Third Respondent

SOLICITORS: Romans & Romans Lawyers for the Applicant/Respondent
Thynne & Macartney for the First and Second Respondents/Applicants
Brisbane City Legal Practice for the Third Respondent

Introduction

By order of 9 December 2021, the applicant’s Third Further Amended Originating Application seeking declarations and consequential relief was dismissed.[1]
[1]Baxter v Preston & Ors [2023] QPELR 244 (RFJ).
The first and second respondents, by their application, seek an order that the applicant pay the costs of the proceeding, assessed on the standard basis until 15 July 2021, and thereafter on the indemnity basis.
The starting position is that the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Baxter v Preston (No. 2)

Details

AGLC: Baxter v Preston (No. 2) [2023] QPEC 37
Case: [2023] QPEC 37
Decision Date: 29 September 2023

CaseChat Overview and Summary

Baxter v Preston (No. 2) involved an originating application for declaratory and consequential relief, which was opposed by the respondents. The court was required to decide whether the proceeding was frivolous or vexatious, whether it was instituted or maintained for an improper purpose, and whether the applicant introduced new material. The court also had to determine whether the power to award costs under section 60(1) of the Planning & Environment Court Act 2016 was enlivened, and whether the discretion to make an order as to costs should be exercised.

The court found that numerous discretionary considerations did not favour the applicant’s case, including the technical nature of the deficiencies alleged, the additional authorisations obtained by the respondents, and the lack of public interest in requiring the respondents to make further development applications. The court held that the applicant's decision to press on with the proceeding after 15 July 2021 was productive of serious and unjustified trouble and harassment. The eight considerations referred to in the reasons for judgment weighed 'strongly against the grant of relief'. The court was more than comfortably satisfied that the application should be dismissed.

The court awarded costs to the respondents on an indemnity basis from 15 July 2021 up to and including 9 December 2021. The applicant was also ordered to pay the respondents' costs of the application filed on 17 December 2021. The balance of the application filed on 17 December 2021 was dismissed.

Orders

Orders of the court

1. THE APPLICATION FILED 17 DECEMBER 2021 IS ALLOWED IN PART.

2. THE APPLICANT PAY THE FIRST RESPONDENTS’ COSTS OF THE PROCEEDING ON AND FROM 15 JULY 2021 UP TO AND INCLUDING 9 DECEMBER 2021, ASSESSED ON THE INDEMNITY BASIS.

3. THE APPLICANT PAY THE FIRST RESPONDENTS’ COSTS OF THE APPLICATION FILED 17 DECEMBER 2021.

4. THE APPLICANT PAY THE SECOND RESPONDENT’S COSTS OF THE PROCEEDING ON AND FROM 15 JULY 2021 UP TO AND INCLUDING 9 DECEMBER 2021, ASSESSED ON THE INDEMNITY BASIS.

5. THE APPLICANT PAY THE SECOND RESPONDENT’S COSTS OF THE APPLICATION FILED 17 DECEMBER 2021.

6. THE BALANCE OF THE APPLICATION FILED 17 DECEMBER 2021 IS DISMISSED.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The RFJ also make clear that numerous discretionary considerations did not favour the applicant’s case. Paragraph [26] states:“[26] … it must be remembered that the relief that Mr Baxter seeks is discretionary. Even if Mr Baxter establishes all his allegations about unlawful works and invalid decision-making, the Court must still ask itself whether, in the exercise of the discretion, the declarations and orders should be made. Here, that question is to be answered in a context where there are many discretionary considerations that militate against the grant of the relief. They include the following eight considerations.” (emphasis added) Eight considerations are set out in paragraphs [27] to [39] of the RFJ. Three considerations are of particular note (footnotes omitted):[29] Third, the extent of deficiencies now alleged are technical in nature. Even if the allegations were correct, they are such that they are unnoticeable other than to a person well-versed in the legal quagmire that is the regulation of building work under the Planning Act 2016 and the Building Act 1975 and the sub-ordinate legislation and statutory instruments that they bring into play.…[31] Fifth, even if Mr Baxter was correct about the need for an operational works permit and authorisation from the Council with respect to the construction of the pool, by 13 July 2021 the Prestons had the additional authorisations from the Council. Despite that, they were still restrained from progressing the redevelopment of the subject land. …[38] Finally, there is no apparent public interest to be served in requiring the Prestons to make yet further development applications to the Council and the private certifier. To the extent that I am incorrect in my assessment of the matters of statutory construction, the resultant deficiencies relate to matters of form, not substance. Further, even if the correction of the alleged deficiencies resulted in the Prestons being denied the ability to proceed with the pool, this would not be likely to result in a materially different outcome for Mr Baxter. The potential impacts on character, sunlight, and privacy about which Mr Baxter is concerned are a by-product of the location where he lives. A degree of impact, such as that occasioned by the proposed development, is within reasonable expectations. The impacts are not unacceptably exacerbated by the aspects of the proposed development about which Mr Baxter complains.” (emphasis added) Paragraphs [29], [31] and [38] of the RFJ convey, in my view, that the applicant’s decision to press on with the proceeding after 15 July 2021 was productive of serious and unjustified trouble and harassment. The eight considerations referred to above were held to weigh ‘strongly against the grant of relief’. Paragraph [39] of the RFJ states:“[39] Ultimately, even assuming Mr Baxter were able to establish the factual and legal foundation for each of the declarations and orders he seeks, I am of the view that the discretionary considerations weigh strongly against the grant of the relief. Mr Baxter’s position is compounded by the lack of merit to his allegations. As such, for the reasons detailed below, I am more than comfortably satisfied that his application should be dismissed.” (emphasis added)

CITATION:	Baxter v Preston & Ors (No. 2) [2023] QPEC 37
PARTIES:	STEVEN JOHN BAXTER (Applicant) v ANTHONY STEVEN PRESTON AND KYLIE ANNE PRESTON (First Respondents) and GRAYA CONSTRUCTION PTY LTD (ACN 158 362 406) (Second Respondent) and BRISBANE CITY COUNCIL (Third Respondent)
FILE NO/S:	932 of 2021
DIVISION:	Planning and Environment
PROCEEDING:	Application for costs
ORIGINATING COURT:	Planning and Environment Court, Brisbane
DELIVERED ON:	29 September 2023
DELIVERED AT:	Brisbane
HEARING DATE:	12 September 2022
JUDGE:	Williamson KC DCJ
ORDER:	1. THE APPLICATION FILED 17 DECEMBER 2021 IS ALLOWED IN PART. 2. THE APPLICANT PAY THE FIRST RESPONDENTS’ COSTS OF THE PROCEEDING ON AND FROM 15 JULY 2021 UP TO AND INCLUDING 9 DECEMBER 2021, ASSESSED ON THE INDEMNITY BASIS. 3. THE APPLICANT PAY THE FIRST RESPONDENTS’ COSTS OF THE APPLICATION FILED 17 DECEMBER 2021. 4. THE APPLICANT PAY THE SECOND RESPONDENT’S COSTS OF THE PROCEEDING ON AND FROM 15 JULY 2021 UP TO AND INCLUDING 9 DECEMBER 2021, ASSESSED ON THE INDEMNITY BASIS. 5. THE APPLICANT PAY THE SECOND RESPONDENT’S COSTS OF THE APPLICATION FILED 17 DECEMBER 2021. 6. THE BALANCE OF THE APPLICATION FILED 17 DECEMBER 2021 IS DISMISSED.
CATCHWORDS:	PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – COSTS – where Originating Application seeking declaratory and consequential relief – where Originating Application was opposed by the respondents – where Originating Application dismissed – whether the proceeding was frivolous or vexatious – whether the proceeding was instituted, and maintained, for an improper purpose – whether the applicant introduced new material – whether the power to award costs under s 60(1) of the Planning & Environment Court Act 2016 is enlivened – whether the discretion to make an order as to costs should be exercised – whether costs should be assessed on an indemnity basis.
CASES:	Baxter v Preston & Ors [2022] QCA 146 Baxter v Preston & Ors [2023] QPELR 244; [2021] QPEC 69 Mudie v Gainriver Pty Ltd (No. 2) [2003] 2 Qd R 271 Sincere International Group Pty Ltd v Council of the City of Gold Coast (No. 2) [2019] QPELR 662
LEGISLATION:	Planning Act 2016 s 46 Planning and Environment Court Act 2016 ss 59 & 60 Planning and Environment Court Rules 2018 r 8(1)
COUNSEL:	Mr A Skoien with Mr J Moxon for the Applicant/Respondent Ms S Hedge for the First and Second Respondents/Applicants No appearance for the Third Respondent
SOLICITORS:	Romans & Romans Lawyers for the Applicant/Respondent Thynne & Macartney for the First and Second Respondents/Applicants Brisbane City Legal Practice for the Third Respondent