Chief Executive, Department of Transport and Main Roads v Club Cavill Pty Ltd (No 2)

[2011] QPEC 118

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Chief Executive, Department of Transport and  Main Roads v Club Cavill Pty Ltd (No 2) [2011] QPEC 118

PARTIES:

CHIEF EXECUTIVE, DEPARTMENT OF TRANSPORT AND MAIN ROADS

(Applicant)

v

CLUB CAVILL PTY LTD (ACN 099 023 711)
(Respondent)

FILE NO:

3383 of 2010

DIVISION:

Original

PROCEEDING:

Application for declaration

ORIGINATING COURT:

Planning and Environment Court of Queensland at Brisbane

DELIVERED ON:

8 September 2011

DELIVERED AT:

Brisbane

HEARING DATE:

8 September 2011

JUDGE:

Robin QC DCJ

ORDER:

Respondent’s application for costs refused

CATCHWORDS:

Sustainable Planning Act 2009 s 457

Planning and Environment Court Rules 2010 r 3, r 4, r 8

Uniform Civil Procedure Rules r 5, r 62, r 489

Application for costs occasioned by adjournment of originating application seeking a declaration that a development approval had not lapsed (which the respondent, now seeking costs, unsuccessfully resisted) – principal application adjourned when, argument having finished, the owner of the land (not a party) intervened, seeking an adjournment to consider its position – respondent blamed applicant for failing to join owner – whether discretion to award costs arose – whether discretion should be exercised.

COUNSEL:

Mr M. Hinson SC for applicant (respondent in application for costs)

SOLICITORS:

Crown Law for applicant (respondent in application for costs)

Q5 Law for respondent (applicant in application for costs)

1. The issue before the court, directed to be heard today by Judge Rackemann, is whether the applicant ought to be ordered to pay the respondent’s costs thrown away by an adjournment which I ordered on 28 January 2011 (identified as the respondent’s costs of a further appearance on 16 February 2011). The proceeding is an unusual one in which the applicant sought a declaration that a certain development approval had not lapsed. Such a declaration would have the effect of deferring the applicant’s obligation to pay compensation for a land resumption. The declaration was made, for reasons that can be found at [2011] QPEC 15. As appears from paragraph [2] of those reasons, the adjournment was necessary because a lawyer for Sunrise Waters Pty Ltd (receivers and managers appointed) which was the owner of the land with the benefit of the preliminary approval became aware of the proceeding, which had not been served on his client, and intervened to ask that no decision be made until his client had an opportunity to be informed, to consider its position and be heard, should it wish to make submissions.

1. For all that appeared, Sunrise Waters’ interest and that of the applicant coincided, but the company’s interest in being allowed to do all it could to ensure that the respondent did not succeed was clear; it filed and made returnable on the adjourned date an application seeking its joinder as a second respondent on the basis of being directly affected by the relief sought (as owner), alternatively as a person whose presence before the court was desirable pursuant to Rule 69 of the UCPR.  Joinder was ordered and the existing respondent’s costs of the day were reserved in the expectation that they might be sought against the applicant, as happened.  On the original hearing date, 28 January 2011, argument had been completed when Mr Nelms intervened.  The applicant, on the basis of that argument, succeeded. 

1. This is a “no costs” jurisdiction, subject to the court’s entitlement to exercise a discretion in respect of awarding costs in the limited circumstances identified in section 457(2) of the Sustainable Planning Act 2009.  It is surprising how difficult it can be to show the availability of any of the paragraphs.  The respondent according to its written submission relies on:

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

(f)       a party has incurred costs because another party has defaulted in the Court’s procedural requirements; [and]

(i)        an applicant …… does not properly discharge its responsibilities in the proceeding.”

1. The section says:

“457     Costs

(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 … as it considers appropriate in the following circumstances-

…

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

…

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

…

(i)an applicant … does not properly discharge its responsibilities in the proceeding.”

1. The respondent’s outline of submissions filed on the 1 September 2011 at Judge Rackemann’s direction misstates (d) as covering the situation where “the adjournment was required because of the conduct of the applicant here in failing to join another relevant party (i.e. the owner of the land)”.  Paragraph (d) only applies in favour of “the party” required to apply for an adjournment.  The adjournment was applied for by Sunrise Waters, which is not the party relevantly incurring or now seeking costs. 

1. As to (f), the procedural requirement in respect of which the application “defaulted” is said by the respondent to be “to ensure all relevant parties were joined in the application for relief”.  The source of that requirement, the applicant says in response submissions filed 6 September 2011, is Rule 8(1) of the Planning and Environment Court Rules 2010 (PEC Rules):

“An originating application must name as a respondent the entity directly affected by the relief sought.”

The argument made is that relief sought did not directly affect Sunrise Waters.  It is correct to say that “if granted, that relief was not inimical to or prejudicial to Sunrise Waters’ interests as the owner of the land to which the approval applied.”  I accept the argument that a failure to comply with Rule 8(1) is not shown, that “Rule 8(1) is concerned with the respondent to an application, not an applicant for relief claimed in an application.  Rule 8(1) is concerned to identify a proper contradictor with an interest in resisting the relief sought”.

1. The respondent did not seek a cross-declaration.  Authority was cited to show the effect of dismissal of the application, being the order which the respondent submitted was appropriate in its written and oral submissions relied upon on 28 January 2011.  No estoppel would arise from dismissal of an application for a declaration.  In Coles v Wood [1981] 1NSWLR 723 at 727, Hutley JA (the other members of the Court concurring) said:

“As the refusal of a declaratory order is discretionary, it follows that an order refusing a declaration is always necessarily interlocutory.  In this case, no positive declaration was made.  A positive declaration operates in law either as a res judicata or an issue estoppel and such an order is final:  Becker v City of Marion Corporation [1977] AC 271. That a positive declaration is a final order was decided in this Court in Marra Developments Ltd v BW Rofe Pty Ltd [1977] 2 NSWLR 616, at p 626, but that does not mean that a refusal is final. It is established by authority that the one set of proceedings may, depending upon the upshot, yield final or interlocutory orders. As Windeyer J said in Hall v Nominal Defendant (1966) 117 CLR 423, p 443:

‘…..it cannot be regarded as of general application because an order in favour of one party to an application may finally determine the dispute between them whereas an order to the opposite effect would not. For example, an order setting aside a jury’s verdict and ordering a new trial is clearly interlocutory. But an order refusing a new trial is final.’”

1. It did not appear until Mr Nelms’ intervention that his client was the owner of the relevant land.  The respondent’s written submissions filed 27 January 2011 in paragraph 2.1(a) identified the respondent as registered proprietor of the relevant land, a situation that had been overtaken by events.  Indeed, Q5 Law’s emailed reply of lunchtime today reminds me that Mr Hughes SC informed the court on 28 January 2011 that the reference should be to his client as “former owner”.  He did not identify the present owner, or submit that it should be a party, which could have been to invite in an additional adversary.  In the circumstances, it can now be seen that nothing was going to happen in the application, assuming it failed, to preclude Sunrise Waters’ seeking the same relief in its own later proceeding.

1. I do not consider that section 487(2)(f) has been triggered.

1. Given the specific focus of Rule 8(1), I do not think that there is justification here to regard Rule 62(1) of the UCPR:

“Each person whose presence is necessary to enable the court to adjudicate effectually and completely on all matters in dispute in a proceeding must be included as a party to the proceeding.”

as giving rise to a relevant procedural requirement.  This comment is made having regard to Rule 3(2) of the PEC Rules making applicable UCPR provisions where the PEC Rules do not provide for some matter. 

1. The commonsense notion found in Rule 62(1) (which, incidentally, does not in terms impose a requirement on an applicant or plaintiff) may be relevant to the section 457(2)(i) issue and the applicant’s “responsibilities in the proceeding”. Those include responsibilities flowing from PEC Rules Rule 4 which replicates UCPR Rule 5(1), (2) and (3). In each case at (3) there is spelt out the implied undertaking of all parties to proceed in an “expeditious” way. UCPR Rule 5 is coming to be seen as a source of obligations upon litigants and so should our Rule 4 be. “Expeditious”, in my view, does not simply mean quick or speedy, but rather, in this context, according to definitions my associate has located, “done quickly and efficiently” (Collins English Dictionary), “efficient and speedy” (Webster’s New World College Dictionary), “marked by or acting with prompt efficiency” (Meriam-Webster.com) “quick and effective” (Macmillan) or “acting or done with speed and efficiency” (The American Heritage Dictionary of the English Language). It may involve some recourse to hindsight, but I think that, regardless of the limited demands of Rule 8(1), it can now be seen as the applicant’s responsibility in commencing a proceeding which might have prompted a successful application for a cross-declaration, to ascertain and give notice to, if not join as a party the owner of the relevant land. On that basis, I think that paragraph (i) is triggered.

1. It is a separate question whether the discretion to award costs against the applicant ought to be exercised.  I am not persuaded that it should be.  The application was successful, so that, with hindsight, it can be said that the respondent ought not to have opposed it.  The respondent was as willing as the applicant to proceed in the absence of Sunrise Waters, indeed inaccurately presented itself as the owner until a very late stage.  It did not oppose the adjournment to February 16 2011, albeit seeking an order that the costs of that day be reserved.  It belatedly acknowledged Sunrise Waters’ entitlement to be heard, but in today’s submission says that “it is self-evident that any refusal of the declaration sought would have impacted on Sunrise Waters’ rights or interests”.

1. Although no formal steps were taken at an early stage to invoke the possibilities of Rule 489 of the UCPR, the applicant and the respondent joined in asking the court to decide the respondent’s costs application “on the papers”, something the court has been willing to do in the interests of saving the parties further costs, and given the helpful written submissions available.

1. The court declines to make any costs order, as has been announced in court on 8 September 2011.