Burdekin Shire Council v Pioneer Sugar Mills Pty Ltd and the State of Queensland

[2004] QPEC 28

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Burdekin Shire Council v Pioneer Sugar Mills Pty Ltd & The State Of Queensland [2004] QPEC 028

PARTIES:

BURDEKIN SHIRE COUNCIL
Applicant
v
PIONEER SUGAR MILLS PTY LTD
Respondent
And
THE STATE OF QUEENSLAND
Co-Respondent

FILE NO:

3418 of 2002

DIVISION:

Planning and Environment Court

PROCEEDING:

Application

ORIGINATING COURT:

The Planning and Environment Court of Brisbane

DELIVERED ON:

1 July 2004

DELIVERED AT:

Brisbane

HEARING DATE:

4 June 2004

JUDGE:

Alan Wilson SC DCJ

ORDER:

That the co-respondent pay the respondent’s costs of and incidental to this application between 20 May 2004 and 4 June 2004 assessed on the standard basis, including costs of Counsel’s appearance for the respondent on 28 May, 2 June and 4 June 2004

CATCHWORDS:

ENVIRONMENT AND PLANNING – COSTS – discretion of court – relevant considerations

Integrated Planning Act 1997 ss 4.1.23(2)
Local Government (Planning and Environment) Act 1990, ss 7.6(1) and 1(A)

Mudie v Gainriver Pty Ltd (No 2) (2003) 2 Qd R 271, considered

COUNSEL:

Mr W Cochrane for the applicant
Mr J D Houston for the respondent
Ms Brian for the State of Queensland

SOLICITORS:

MacDonnells for the applicant
Carter Newell fro the respondent
Crown Law for the State of Queensland

1. This is an application by the respondent, Pioneer Sugar Mills Pty Ltd (‘Pioneer’) for an order that the co-respondent, the State of Queensland (for the Department of Main Roads) (‘DMR’) pay certain costs associated with DMR’s recent application to be joined as a co-respondent in this matter.

1. The applicant, Burdekin Shire Council (‘Council’) commenced these proceedings against Pioneer on 13 August 2002.  They concern a cane railway siding adjoining the Bruce Highway and, plainly (as DMR now acknowledges) some road traffic safety issues.  Indeed, DMR officers were involved in discussions about the siding from as early as September 1999[1].  In 1999 Pioneer constructed the siding without obtaining a development permit from Council, and the question whether that was a necessary step is the issue between them.   

   [1]Affidavit Rose, Exhibits IR 1 & 2.

1. Notice of the application was given to DMR’s chief executive on 12 August 2002 (as required by the Integrated Planning Act 1997 (‘IPA’) s 4.1.21(6)) . It did not initially elect to join the proceedings[2] but instead, on 3 September 2002, sought and obtained leave for the State of Queensland to be joined as party on its behalf.  A month later, however, and despite urgings to the contrary from Council’s solicitors[3] the Crown sought and obtained leave for the State to withdraw. (DMR appears to have taken the view that its interest in the matter would only be enlivened when and if this court decided the question whether a development permit was necessary, whereupon DMR would become a ‘concurrence agency’ under IPA. More recently, it realised the State’s interests would be directly affected[4].)

   [2]As it could have done, eg, under the Integrated Planning Act 1997, s 4.1.21(7).

   [3]Affidavit Duane, Exhibits MD 1&2.

   [4]Affidavit Rose, paragraphs 17, 19.

1. The matter then proceeded between Burdekin and Pioneer and directions were given on 2 October 2002, and 2 April 2004.  The last order placed the matter in the pool of proceedings to be heard in the month of June 2004, and to be allocated hearing dates at a callover on 28 May.  In the interim in April 2003 Burdekin had asked DMR’s District Director to provide an affidavit concerning safety issues alleged to arise concerning the siding and although he agreed to do so, nothing more happened[5].

   [5]Affidavit Rose, filed 4 June 2004, para 12.

1. Council’s continuing imprecations to DMR eventually bore fruit, however, and on 20 May 2004 Crown Law wrote to the Council’s solicitors authorising them to tell the Court at the callover that DMR was reconsidering its position.  At the callover Pioneer sought to have the matter listed for hearing but, upon Counsel for the applicant informing the Court of DMR’s changed circumstances, it was adjourned for mention on 1 June.  Pioneer had urged the Crown to appear on 28 May, but it did not do so.  It did appear on 2 June and was given leave to file an application, by the State of Queensland, seeking leave to be joined as a party.  That application was heard on 4 June and succeeded, and Pioneer now seeks an order that the State of Queensland pay its costs on a standard basis from 20 May to 4 June 2004, including the costs of Counsel’s appearances on 28 May, 2 June and 4 June.

1. I am satisfied that the State, representing DMR was always a proper party to the proceeding; that it should not have withdrawn from the matter in October 2002; and, that but for its late application this matter should, and could have been set down for hearing in June 2004.  It follows that, but for DMR’s conduct, appearances by Counsel on all three occasions in late May and early June would not have been necessary; nor that Pioneer would be put to expense preparing material resisting DMR’s application.  In light of the history of the matter I am also of the view it was reasonable for Pioneer to contest that application.

1. Issues concerning costs in this jurisdiction are to be determined under IPA s 4.1.23 which relevantly provides:

“Costs

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 the proceeding) as it considers appropriate in the following circumstances –

(a)the court considers the proceeding is instituted merely to delay or obstruct;

(b)the court considers the proceeding (or part of the proceeding) to have been frivolous or vexatious;

(c)a party has not been given reasonable notice of intention to apply for adjournment of the proceeding;

(d)a party has incurred costs because the party is required to apply for an adjournment because of the conduct of another party;

(e)a party has incurred costs because another party has defaulted in the court’s procedural requirements;

(f)without limiting paragraphs (d) a party has incurred costs because another party has introduced (or sought to introduce) new material;

(g)if the proceeding is an appeal against a decision on a development application and the applicant did not, in responding to an information request, give all the information reasonably requested before the decision was made;

(h)the court considers an assessment manager, a referral agency or a local government should have taken an active part in the proceeding and it did not do so;

(i)an applicant, submitter, referral agency, assessment manager or local government does not properly discharge its responsibilities in the proceedings.

1. The costs sought by Pioneer only relate to part of the “proceeding”, ie the Crown’s application. The word is not defined under IPA but, pursuant to the Planning and Environment Court Rules 1999 [6] means “… an appeal and a proceeding started by an originating application”. Neither term properly describes an application brought within a proceeding and IPA otherwise contains no provisions specifically dealing with these kinds of interlocutory applications (although the Court does have the power to give directions about a particular case: s 4.1.11(3)). Under the Acts Interpretation Act 1954, however, a “proceeding” means “… the legal action or proceeding” and that is plainly wider.

   [6]Promulgated under IPA, s4.1.10.

1. As Mr Houston of Counsel for Pioneer submitted it would be an odd result, and an unattractive construction of IPA if a party obtaining leave to join a proceeding and thereby being, for example, the effective cause of the adjournment of a hearing could nevertheless avoid or limit the consequences of its actions because the costs rules would only apply to its conduct after the formal order for joinder was made.  To her credit, Ms Brian of Counsel for DMR did not make that submission.

1. There are other indicia that s 4.1.23 should not be construed in that way. Sub-section 4.1.23(2)(b), refers specifically to a part of a proceeding and is plainly intended to thwart an argument of that kind, at least in respect of proceedings which are frivolous or vexatious; and the Court of Appeal in Mudie v Gainriver Pty Ltd (No 2) (2003) 2 Qd R 271 rejected the notion that costs were an “all or nothing” issue under the equivalent section in the preceding legislation, the Local Government (Planning and Environment) Act 1990 s 7.6(1A).

1. In Mudie McMurdo P and Atkinson J said, at 282:

‘Although the interpretation contended for by the respondents is arguably open on a literal interpretation of the words in section 7.6(1A) (A) the interpretation which achieves the purpose of the Act is to be preferred, especially where the literal interpretation produces an odd result.’

Any construction of IPA s 4.1.23(2)(a)-(i) other than one under which an award of costs for part, but not necessarily the whole, of a proceeding could be awarded would be surprising, and as their Honours went on to say at 282-3 :

‘The legislature must have intended to give the courts a discretion to award costs when any party conduct the proceedings in a way that is frivolous or vexatious; it could not have intended that respondents who behave in such a way should be immune from a costs order against them. To accede to the respondent’s contention would mean that a wealthy and powerful respondent could vexatiously and oppressively prolong proceedings causing the financial ruin of a worthy but less wealthy and less powerful appellant or applicant … section 7.6(1A)(a) should (not) be interpreted as limited to instances where the conduct of the entire appeal or proceedings is vexatious or oppressive; it extends to awarding costs to reflect a party’s conduct of proceedings which is in part frivolous or vexatious …’ (my emphasis)

1. The principle ought to be applied, when necessary, in respect of the various subsections in s 4.1.23(2). All other constructions carry the risk that conduct which offends one or more of the subsections might unmeritoriously escape sanction in costs.

1. Section 4.1.23(1) expresses the primary principle in this jurisdiction that, generally, each party will bear its own costs. Sub-section (2) then sets out a number of circumstances when orders for costs against a party may yet be made. In this Court the section and its predecessor have been applied in a way which shows the exercise of deciding costs questions is different from that which arises in civil proceedings, where costs are the subject of a much broader discretion[7].  

   [7]Uniform Civil Procedure Rules, Chapter 17 and esp. r 689.

1. The Explanatory Guide within IPA does suggest sub-sections (2)(a) and (b) contain a fairly wide discretion:

(a)… it allows the court to consider the motivations behind the proceedings in determining whether costs should be awarded;

(b)… in contrast to the ground of obstruction or delay, this ground allows the court to consider the merits of the substance of the proceeding itself

but the provisions have been construed (with their predecessors) in a fashion confirming comments from the learned authors of Planning and Development Queensland [8] at 4094 - namely, that an applicant for costs under either sub-section is required to meet a “high standard” before the actions of a party will be deemed to have offended them.  There are many instances, as the cases cited in the text at pp 4092/1-4905 show.

[8]Fogg, Meurling and Hodgetts

1. Pioneer sought to invoke sub-sections 4.1.23(2)(c), (f), (h) and (i).  As to (c), DMR brought its application to rejoin very late, but it did not apply for an adjournment of the hearing in June 2004 (although that was the probable consequence of its application) and the sub-section does not apply.

1. As to sub-section (2)(f) the affidavits in support of DMR’s application make it clear it seeks to introduce traffic evidence in relation to the impacts of Pioneer’s use of the siding on the safety and efficiency of a nearby, major road[9].  DMR joined, and then withdrew from the proceedings.  Had it remained an active party, the evidence it now seeks to put before the Court could have been provided at a much earlier time without disruption of the proceedings.  DMR has, then, sought to introduce new material and although it did not, technically, do so at a time when it was a party, it now occupies that position and persists with that plan. 

   [9]Affidavit Rose, para 20.

1. It was contended for DMR that traffic issues have always been part of the contest between the Council and Pioneer and the absence of material about it meant the matter was not truly ready to be set down for hearing, but that is not apparent from the evidence and, in any event, ignores the contents of an affidavit from Mr Rose, DMR’s District Director, in which he says DMR has interests which may not coincide with Council’s[10], and sets out matters which, plainly, will  be the subject of further evidence and, therefore, new material.  It does not sit comfortably for DMR to do nothing in the matter and then attempt to criticise the parties for an alleged failure to obtain evidence which, as Mr Rose’s affidavits show, was always in its possession or power.  I am satisfied sub-section 2(f) has been offended, in circumstances which warrant an exercise of the discretion against DMR.

   [10]Affidavit Rose, para 14.

1. As to sub-sections 2(h) and (i) DMR has relied upon its status as a concurrence agency to justify its application to join as a party[11] but in submissions from Counsel contended, I think correctly, that it did not attain that status under IPA until the primary question - whether a development permit is necessary - is decided in this proceeding[12].  The recital of facts set out earlier shows DMR has known of its interest in the matter since September 1999 and has expressed firm views about it, yet has joined and left, and then persistently declined to rejoin the action, until the last minute.  Nevertheless, a strict construction of the terms used in the sub-sections must mean DMR’s present position in the matter does not place it in any of the categories mentioned in them, and these provisions do not avail Pioneer.

   [11]Affidavit Rose, para 2.

   [12]IPA, Dictionary, Schedule 10, definitions of ‘referral agency’ and ‘concurrence agency’.

1. DMR’s conduct (whatever the cause of it) has been disappointing.  It has, in the past, acted in a way which delayed the proper conduct of the application itself and, very late in that proceeding, exacerbated that default by the untimely realisation of its mistaken withdrawal.  Those circumstances warrant the exercise of the discretion arising under sub-section (2)(f) and the granting of the order Pioneer seeks that the co-respondent pay its costs assessed on the standard basis from 20 May to 4 June 2004 inclusive, specifically including Counsel’s costs of appearance on 28 May, 2 June and 4 June 2004.