Chrismel Pty Ltd v Department of Natural Resources and Mines

[2005] QLAC 31

LAND APPEAL COURT OF QUEENSLAND

CITATION:

Chrismel Pty Ltd v Department of Natural Resources and Mines  [2005] QLAC 0031

PARTIES:

Chrismel Pty Ltd
(appellant)

v.

Chief Executive, Department of Natural Resources and Mines
(respondent)

FILE NO:

LAC2005/0034

DIVISION:

Land Appeal Court of Queensland

PROCEEDING:

An appeal against the decision of the Land Court dismissing an application for costs

ORIGINATING COURT:

Land Court of Queensland

DELIVERED ON:

20 June 2005

DELIVERED AT:

Brisbane

HEARD AT:

Brisbane

JUDGE:
MEMBERS:

Philippides J
Mr JJ Trickett, President
Mrs CAC MacDonald

ORDERS:

1.      The appeal to this Court is allowed;

2.      The respondent pay the appellant’s costs from the filing of the notice of appeal to the Land Court up to and including the hearing on 23 February 2005 to be assessed.

CATCHWORDS:

Practice and Procedure - Appeal to Land Appeal Court – Jurisdiction of Land Court to award costs – where discretion to award costs limited to circumstances specified in s 882(4) of the Water Act 2000 (Qld) – whether Land Court erred in failing to award costs under s 882(4)(e) or (g) of the Water Act 2000 (Qld) – Integrated Planning Act 1997 (Qld) s.4.1.23(2) - Local Government (Planning and Environment) Act 1990 s.7.6(1A) – whether costs incurred because respondent "defaulted in the court’s procedural requirements" within the meaning of s 882(4)(e) of the Water Act 2000 (Qld) – whether respondent did "not properly discharge its responsibilities in the appeal" within the meaning of s 882(4)(g) of the Water Act 2000 (Qld) – meaning of "in the appeal" for the purposes of s 882(4)(g) of the Water Act 2000 (Qld)

Statutory Interpretation – Water Act 2000 (Qld) s.861 - s.882 - Integrated Planning Act 1997 (Qld) s.4.1.23 - Local Government (Planning and Environment) Act (Qld) s.7.6(1A)

APPEARANCES:

Mr CL Hughes SC, with him Mr JJ Haydon,
for the appellant.
Mr MO Plunkett for the Respondent.

SOLICITORS:

Mullins Lawyers for the appellant
Crown Solicitor, Crown Law, for the respondent

1. THE COURT:  This is an appeal against a decision of a member of the Land Court delivered on 28 February 2005, dismissing the appellant’s application for its costs of an appeal to that court brought by it pursuant to the Water Act 2000 (Qld) (“the Act”).

Background

1. It is necessary to set out the background to the decision of the Land Court Member. 

2. The appellant, Chrismel Pty Ltd, which is the registered proprietor of land described as Lot 4 on S31107, made an application on 21 August 2003 to the respondent pursuant to s 206 of the Act for a water licence to take water from the Brisbane River for irrigation purposes.

3. In June 2004, the respondent gave the appellant an information notice pursuant to s 211 of the Act rejecting the application. The basis given for the rejection was that a 1988 Cabinet decision limited the extraction of water under licence from the Brisbane River between Wivenhoe Dam and Mount Crosby ("the Source") to an upper limit of 7,000 megalitres, which had been reached and that the respondent was thus precluded from issuing further water licences that would result in the upper limit being exceeded.

4. On 22 July 2004, the appellant brought an application pursuant to s 862 of the Act for an internal review of the decision to refuse the application, inter alia, on the ground that the respondent failed to consider the criteria prescribed by s 210 of the Act for determining the application.

5. On 26 August 2004, a review notice was issued by the respondent pursuant to s 864 of the Act confirming the original decision. The review decision refusing the application was based on an interpretation of s 15B(1) of the Water Resources Legislation Amendment Regulation (No. 1) 2000 ("the 2000 Regulation"). The reviewer determined that the 2000 Regulation "effectively limit[ed] the water that is available for allocation for irrigation purposes from the Brisbane River from Wivenhoe Dam and Mount Crosby to no more than 7,000 ML per annum". The review notice stated that the department maintained records of allocations granted under water licences and that, as the aggregate 7,000 ML allocation had been reached, "granting of the application or part of the application was not possible, as there was no additional water available for allocation". The reviewer thus took the view that the 2000 Regulation prevented him from granting any further applications for water licences in the relevant area, including the appellant’s. The original decision was therefore determined to be in accordance with s 210(1)(d) of the Act "which requires the chief executive to consider existing water entitlements and authorities to take or interfere with water".

6. The appellant then appealed pursuant to s 877(1)(b) of the Act to the Land Court against the review decision, filing an originating application on 23 September 2004. It contended, inter alia, that the review decision was wrong in law, that the respondent had failed to properly address the criteria required to be taken into account pursuant to s 210 of the Act, that the 2000 Regulation had been repealed and, that even if operative, the 2000 Regulation did not prescribe an upper limit on the water available for allocation for irrigation purposes.

7. By letter dated 11 November 2004, the respondent referred to the 2000 Regulation that had been repealed, stating that the Water (Transitional) Amendment Regulation (No 1) 2002 ("the 2002 Regulation") appeared to have been the vehicle for the continuation of the relevant provisions.

8. At a directions hearing on 3 December 2004, on the application of the respondent, orders were made for the determination of a preliminary point concerning the effect of the 2002 Regulation.  The orders made included an order for the filing of the preliminary point by the respondent, disclosure of all relevant documents relating to the preliminary point by list of documents by 17 December 2004, inspection thereof by 23 December 2004 and for written submissions.   Those orders were formalised by order dated 16 December 2004.  The preliminary point was set down for hearing on 23 February 2005.

9. On 10 December 2004, the respondent filed a document entitled "Preliminary Legal Point", in which it was conceded that the Cabinet Minute on which the original decision was based was "a statement of policy and has no standing in law".  However, it was contended that "the essence of that Cabinet Minute is embodied in the legislative provisions".  It was stated that the application was refused on the basis of the 2000 Regulation, which it was said limited the amount of water that could be allocated, but that the subsequent 2002 Regulation contained similar provisions limiting the availability of water for allocation.  It was stated that the South East Queensland Water Corporation Limited ("the Company") had a water allocation of 345,000 ML a year from which it was required to make available "a sufficient volume of water but not more than an aggregate of 7,000 ML a year to meet the rights to water of licensees authorised under licences issued under part 4 of the Act" to take water from the Source. It was contended that the appellant, not being an existing licensee, had no entitlement to claim in the 7,000 ML allocation under the 2002 Regulation.  However, the preliminary point filed by the respondent was not confined to contentions as to the effect of the 2002 Regulation.  In the preliminary point, the respondent also raised as a contention that:

   "the decision to refuse the application was made by giving appropriate weight to the criteria, 'existing entitlements and authorities to take or interfere with water' specified in s 210(1)(d) of the Water Act 2000 in that the water from the identified sources had already been allocated to the company."

10. A dispute arose between the parties as to whether the respondent had made proper disclosure. In correspondence, the appellant contended that the respondent had not done so.  By letter dated 17 December 2004, it was indicated by the respondent that it did not have in its possession documents relevant to the preliminary point other than those identified on the appellant’s list and confirmed that the respondent did not rely on the 1988 Cabinet Minute, in respect of which privilege from disclosure was claimed. 

11. The appellant maintained that since the preliminary point asserted that the essence of the Cabinet Minute was embodied in the legislation relied upon by the respondent that it remained relevant and by letter dated 19 January 2005 continued to press for disclosure of it.   By that letter, the appellant also sought disclosure of other documents.  It sought disclosure of the appellant’s application as held by the respondent, the appellant’s file as it related to the appellant’s application and the review of the decision, all water licences issued to take water for irrigation purposes from the Brisbane River between Wivenhoe Dam and Mount Crosby Weir and all documents held relating to the allocation of water from the sources including yield reports and other reports relating to the quality and quantity of water within the source.  The appellant contended that there was no "irrigation cap" in existence and that there was sufficient water within the relevant section of the Brisbane River for a licence to be granted.  It was on this basis that it requested disclosure of any yield estimates undertaken by the respondent.  It provided the respondent with both a copy of a document which detailed the status of the licences issued as at 27 July 2003 for the relevant section of the Brisbane River and a copy of a SEQ Water letter dated 10 May 2004 which referred to yield estimates undertaken for the Wivenhoe system and which the appellant understood had been prepared by the respondent. 

12. On 15 February 2005, the appellant filed an application returnable on 23 February 2005 for disclosure of the documents referred to in the letter of 19 January 2005.  That application also dealt with the ambit of the preliminary point and sought to limit its scope.

13. Written submissions were filed by the respondent in respect of the preliminary point on the 21 January 2005, in which the respondent maintained that it was precluded from issuing a water licence to draw water from the Source as a result of the 2002 Regulation.  The appellant delivered its submissions in response on 4 February 2005. 

14. On the eve of the hearing of the preliminary point on 23 February 2005, counsel for the respondent made comprehensive concessions in written submissions which were provided late on 22 February 2005 to the appellant.  The concessions may be summarised as follows:

· The respondent "did not exercise, or otherwise commence to exercise, the requirements imposed on him by the legislature under s 210 of the Act, because he impermissibly constrained himself from doing so by reason of a policy dictate". In those circumstances, the refusal was "plainly", an exercise of a discretionary power "in accordance with a rule or policy without regard to the merits of the particular case";

· "Significantly, from the outset, the appellant rightly contended that its application should have been assessed against the criteria outlined in s 210 of the Act, which it was conceded had not been done";

· The reviewer made an error of law by relying on the 2000 Regulation which had been repealed. Any conclusion reached by the reviewer under the 2000 Regulation was not open under it or the subsequent 2002 Regulation, the reviewer’s interpretation of the Regulation being "inconsistent and repugnant with the parent Act, as it would be impermissible to constrain the respondent in the exercise of his powers under s. 210 and s. 211 of the Act";

· There had been a failure to decide the appellant’s application at all in that "the exercise of the powers under s. 210 and s. 211 of the Act failed at the fountainhead because the task required by the statute had not been embarked upon";

·       It was “plain that the substantial merits of the application had never been explored”;

· It was “appropriate that the appeal be allowed and the application be sent back with a direction that the decision be made against the criteria outlined in s 210 of the Act as originally requested by the appellant.”

1. As a result of those concessions, which were repeated in oral submissions on 23 February 2005, orders were made by the learned member allowing the appeal and providing for the original application for a water licence to be referred back to the respondent for decision.  Those orders were made largely in accordance with a draft order provided by the respondent to the appellant on 22 February 2005.

   The decision of the Land Court as to costs

2. In the light of the concessions made which resulted in the resolution of the substantive appeal as described above, the appellant made an application at the hearing on 23 February 2005 that the respondent pay the appellant’s costs from the filing of the originating application to the hearing on 23 February 2005.

3. In determining that application for costs, the learned Member had regard to s 34 of the Land Court Act 2000 and s 882 of the Act.

4. Section 34 of the Land Court Act 2000 relevantly provides:

   "(1)Subject to the provisions of this or another Act to the contrary, the Land Court may order costs for a proceeding in the court as it considers appropriate.

   (2)If the court does not make an order under subsection (1), each party to the proceeding must bear the party’s own costs for the proceeding."

5. Section 882(3) and (4) of the Act provide as follows:

   "(3)Each party to the appeal must bear the party’s own costs for the appeal.

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

   (a)     the court considers the appeal was started merely to delay or obstruct;

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

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

   (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 paragraph (d), a party has incurred costs because another party has introduced, or sought to introduce, new material;

   (g)     a party to the appeal does not properly discharge its responsibilities in the appeal."

1. Before the learned member it was contended by both sides that the question of costs was to be determined having regard to s 882 of the Act. The learned member noted that by virtue of s 882(3) of the Act, the general position was that each party to the appeal must bear its own costs for the appeal, but that there was a limited discretion to award costs in the circumstances specified in s 882(4). The contention made by counsel for the appellant was that the respondent’s conduct came within s 882(4)(e) and (g) of the Act, such that a costs order in the appellant’s favour ought to be made.

2. The learned member observed that the attitude of the respondent as reflected in its earlier submissions supporting the original decision-making process was "seriously flawed" and that there was “little doubt” that the original application for a water licence had been improperly dealt with. The learned member stated that he had considerable sympathy for the position the appellant found itself in and that he was inclined to exercise his discretion in favour of the appellant if the jurisdiction to award costs existed. However, he held that the respondent’s conduct did not come within s 882(4)(e) and s 882(4)(g) of the Act, so as to enliven the power to award costs.

3. As regards s 882(4)(g) of the Act, the learned member concluded that it was not appropriate to make a costs order on the basis that the respondent did not "properly discharge its responsibilities in the appeal".

4. In construing s 882(4)(g) the learned member had regard to a number of decisions in the Planning and Environment Court. These decisions were Shaw v Brisbane City Council [2000] QPELR 57, Browning and Sergeant v Cairns City Council [2002] QPELR 577 and Evans v Townsville City Council [2000] QPELR 337. They concerned s 4.1.23(2)(i) of the Integrated Planning Act 1997 ("IPA"), the wording of which the learned member considered to be materially the same as s 882(4)(g) of the Act, so as not to allow for any meaningful distinction in interpretation. Section 4.1.23(2)(i) of the IPA gives the court a discretion to award costs where "an applicant, submitter, referral agency, assessment manager or local government does not properly discharge its responsibilities in the proceedings". 

5. The learned member observed that in Shaw, Quirk DCJ rejected the proposition that the words "responsibilities in the proceedings" extended to include "an obligation to recognise any weakness in one’s case and to respond accordingly by not pursuing the matter further", stating that "such a proposition would in my view involve too wide an interpretation of the concept of 'responsibilities' as it is used in the sub paragraph." His Honour held that the provision referred to "responsibilities that are imposed on the parties named to do what the Act specifically requires of them when they become involved (in those capacities) in proceedings which the Act governs".

6. The learned member noted that in Browning, White DCJ held that "responsibilities in the proceedings" is confined to "procedural requirements arising out of the Integrated Planning Act and the Rules thereof, and itself obeying any court orders made as part of a proceeding".   The learned member also referred to Evans, where Wall DCJ considered that the relevant Council’s default in complying with procedural requirements also meant that it had "not properly discharged its responsibilities in the proceedings".

7. Although recognising that these decisions were not binding on him, the learned member was influenced by them in adopting a narrow construction of s 882(4)(g) and "reluctantly" concluding that the power to make a costs order under that provision was not enlivened.

8. The learned member also found that the discretion to make an order for costs did not arise under s 882(4)(e) of the Act. He rejected the submission that "the failure of the respondent to ensure the accuracy of its legal arguments before filing its original submissions amounted to a default in the court’s procedural requirements", determining that the failure complained of was not properly characterised as a default in "the court’s procedural requirements".

9. As to the further contention made in respect of s 882(4)(e) that it was enlivened because the respondent had failed to meet its obligations in respect of disclosure, the learned member found that, even accepting that the respondent had defaulted in its obligations to make full disclosure, having regard to the manner in which this appeal was disposed of, there was insufficient evidence before him to conclude that the appellant would have incurred recoverable costs as a consequence of that default. The learned member found that in the context of s 882(4)(e) a direct link between the default and the incurring of the costs is required and that no such link had been established to justify the orders sought.

   The grounds of appeal

1. There was no dispute before the learned member, nor before this Court, that the power to award costs pursuant to s 34 of the Land Court Act was subject to the provisions of s 882 of the Act and that unless the provisions of s 882(4) of the Act were attracted, it followed from s 882(3) that the parties must bear their own costs of the appeal brought in the Land Court.

   (a)Error in the interpretation and application of s 882(4)(e) and (g) of the Act

1. It was a ground of appeal before this Court that the learned member failed properly to interpret and apply s 882(4)(e) and (g) of the Act. The appellant contended that the conduct of the respondent was sufficient to enliven the power to award costs under s 882(4)(e) and (g) and that the discretion ought to have been exercised in its favour.

   (i)s 882(4)(g) – not properly discharging a party’s responsibilities in the appeal

2. There were two grounds on which it was contended that the learned member erred in failing to find that the respondent had not properly discharged its responsibilities in the appeal within the meaning of that expression in s 882(4)(g).

3. It was submitted that the internal review was, by s 861 of the Act, a part of the appeal process. It was thus contended that the respondent’s "responsibilities in the appeal" encompassed its responsibilities in conducting the internal review and in applying the statutory criteria in s 210 to that review and that the respondent had failed to discharge its responsibilities in that aspect of the appeal.

4. The appellant also contended that the learned member improperly relied on the Planning and Environment Court decisions referred to above.  The appellant contended that the learned member erroneously failed to draw a distinction between the process of an application and appeal under the IPA and the application and appeal process under the Act. It was submitted that the statutory responsibilities of the respondent in respect of the appeal process under the Act commenced with the internal review and could not be compared with those of a local government in those decisions. The appellant also contended that construing the expression "responsibilities in the appeal" as merely referring to procedural matters as had been done in some of the Planning and Environment Court cases was unduly restrictive, given that a default in complying with procedural requirements is specifically addressed in s 882(4)(e) of the Act.

5. The appellant further argued that the respondent had not in the course of the appeal acted as a model litigant as is required of all tiers of government (Scott v Handley [1999] FCA 404 at [43] and [44]) and that that was a relevant consideration in assessing the responsibilities of the respondent in the appeal. Relying on Kenny v State of South Australia (1987) 46 SASR 268 at 273, it was argued that the respondent had not demonstrated "conscientious compliance with the procedures designed to minimise cost and delay". It was submitted that the respondent had failed, in the internal review and thereafter, to consider the appellant’s plainly stated submissions that s 210 of the Act had application in preference to the respondent’s approach and did not, until the eve of the hearing, "assist the court to arrive at a proper and just result"; see P & C Cantarella Pty Ltd v Egg Marketing Board (NSW) [1973] 2 NSWLR 366 at 383.

   (ii)s 882(4)(e) – default in the court’s procedural requirements

6. Furthermore, it was submitted that the respondent had failed to make proper disclosure, thereby necessitating the costs of the bringing of the disclosure application before the Court on 23 February 2005, irrespective of the outcome of the substantive appeal. That failure to make disclosure was said to constitute a default in the Court’s procedural requirements for the purposes of s 882(4)(e) of the Act.

   (b)Leave to adduce new evidence under s 56 of the Land Court Act

7. Leave was also sought to admit new evidence.  This evidence consisted of the respondent’s further review decision of 30 March 2005 made upon the application for a licence being sent back for a further determination and the Moratorium Notice dated 24 March 2005.  The appellant sought to admit this evidence, firstly in support of its argument that the respondent had failed to make proper disclosure and secondly, to emphasise the detriment to the appellant flowing from the respondent’s failure to discharge its responsibilities in the appeal properly, "rather than merely creating delays and wasting costs to the potential prejudice of citizens affected by the exercise of its statutory duties".  

   (c)Section 34 of the Land Court Act and Rule 18 of the Land Court Rules 2000

8. Additionally, leave was sought to amend the notice of appeal to rely on s 34 of the Land Court Act 2000 and Rule 18 of the Land Court Rules 2000 as grounds for the exercise of power to award costs in the instant case.  The appellant contended that those provisions applied equally to a respondent as to an appellant and submitted that the respondent had effectively discontinued or withdrawn its defence of the appeal by which time the appellant had incurred substantial costs.   

   Was there any error in the interpretation and application of s 882(4)(g)?

   Did the internal review form part of “the appeal” for the purposes of s 882(4)(g)?

9. As the learned member recognised, the relevant responsibilities, which if not discharged properly, may result in a costs order under s 882(4)(g) are the parties’ responsibilities "in the appeal". It was the appellant’s contention that "the appeal" for the purposes of s 882 of the Act included the internal review process. That was said to follow from s 861 which provides that "every appeal against an original decision must be, in the first instance, by way of an application for internal review." However, the appeal referred to in s 861 is an appeal against the original decision. Section 882 is not concerned with such an appeal, but with an appeal against the review decision.

10. Chapter 6 of the Act which is entitled "Reviews, Appeals and Arbitration" envisages two avenues of appeal available following from the original decision embodied in the information notice. The first avenue of appeal, which is the subject of Part 2 of Chapter 6, is an appeal from the original decision itself, by way of the bringing of an application for internal review. Section 861, which is contained in Part 2, makes it clear that the appeal process commences with such an application for review.

11. The other avenue available is an appeal from the internal review decision to the Land Court. Part 3 of Chapter 6, which includes s 882, is solely concerned with such further appeals, which are expressed by the Act to be commenced by the filing of a notice of appeal (s 878).

12. The "appeal" for the purposes of s 882 is therefore confined to the appeal from the review decision to the Land Court.  While an appeal against the original decision by way of review must occur before an appeal to the Land Court against the review decision may be pursued, so that the appeal process commences with the application for review, the two areas of appeal are quite distinct.  The initial appeal against the original decision and the consequent internal review decision do not form part of the separate and further appeal to the Land Court which is the subject of s 882. 

13. We therefore reject the submission that any failure by the respondent in discharging its responsibilities in respect of the internal review itself constituted a relevant failure to discharge its responsibilities "in the appeal" for the purpose of s 882(4)(g) of the Act.

    Did the learned member err in adopting a narrow interpretation of s 882(4)(g)?

14. If s 882(4)(g) is to be attracted, there must be a failure by the respondent to properly discharge its responsibilities upon the appellant bringing the appeal against the review decision. In approaching that matter, the learned member, although expressing some reservations about the narrow construction adopted by the Planning and Environment Court referred to above, felt constrained by them to also adopt a narrow construction when interpreting s 882(4)(g).

15. Provisions having similarities with s 882(4) appeared in s 7.6(1A) of the repealed Local Government (Planning and Environment) Act 1990 (Qld) and appear in s 4.1.23 of the IPA which superseded it. It is of course appropriate to have recourse to decisions dealing with those provisions when interpreting s 882(4).

16. In Mudie v Gainriver (No 2) [2003] 2 Qd R 271, McMurdo P and Atkinson J in dealing with the subparagraphs of s 7.6(1A) of the Local Government (Planning and Environment) Act 1990, observed that the legislative intent evinced in those provisions "is to give the court the power to compensate a party disadvantaged by the unmeritorious conduct of another party, as particularised in those subparagraphs". The cases in the Planning and Environment Court indicate a cautious approach to the construction of these provisions permitting the awarding of costs. This is because, as observed in Mudie (at 283), the primary rule that each party bear its own costs is designed to ensure that citizens are not discouraged from bringing proceedings in that jurisdiction because of the fear that a crippling costs order might be made. The primary rule also recognizes the wider public interest character likely to be involved in the proceedings. These considerations also apply in the present case to the interpretation of s 882(4).

17. While it is appropriate when interpreting the provisions of s 882(4) of the Act[1] to consider decisions dealing with analogous provisions such as 4.1.23(i) of the IPA, some caution must be exercised in relying on the Planning and Environment Court cases, bearing in mind that there are differences in the wording of the respective provisions.  The IPA contains, as its predecessor did, a provision permitting the awarding of costs in circumstances where a particular specified party, such as a local government, did not take an active part in the proceedings contrary to its obligation to do so.  Thus, the Local Government (Planning and Environment) Act in s 7.6(1A) permitted costs to be awarded where a local government did "not take an active part in proceedings" where it had "a responsibility to do so", while the IPA in s 4.1.23(h) permits costs to be awarded where a particular specified party "should have taken an active part in a proceeding and it did not do so". The decision in Shaw, that the concept of "responsibilities" as it is used in s 4.1.23(i) of the IPA concerned "responsibilities that are imposed on the parties named to do what the Act specifically requires of them when they become involved (in those capacities) in proceedings which the Act governs" is to be seen in the light of s 4.1.23(h) of the IPA. There is no provision equivalent to s 4.1.23(h) of the IPA, or its predecessor, in the Act under consideration here.

    [1]We note that similar provisions to s 882(4) are contained in s 792(2) of the Act.

18. Section 4.1.23(i) of the IPA and s 882(4)(g) of the Act are not concerned with the question of failing to take an active part in appeals, but are directed at the nature of a party’s conduct in the appeal[2].  The Explanatory Notes to s 4.1.23(i) of the IPA clearly suggest a wide ambit for that provision.[3]  They refer to the situation where a party "present[s] evidence that is poorly researched or not relevant to the issue at appeal" as an example of the type of case where the provision may be attracted.

    [2]Although the term "proceeding" is used in s 4.1.23(i) of the IPA, the Explanatory Notes suggest that term includes "an appeal".

    [3]Explanatory Notes to the Integrated Planning Bill 1997, p133.

19. There is no reason why the plain words of s 882(4)(g) of the Act, which were enacted after the analogous IPA provision in s 4.1.23(i), ought not be similarly given a wide scope. Accordingly, we do not see any basis for construing s 882(4)(g) of the Act so as to confine its application to circumstances where there has been a default in compliance with procedural requirements (cf Browning). It is clear that a default in complying with the court’s procedural requirements in respect of an appeal is already catered for by s 882(4)(e). This is not to deny that there may be some overlap between s 882(4)(g) and s 882(4)(e) of the Act and that there may be cases where there is default in procedural requirements that cannot be characterised as coming within s 882(4)(e), but which may fall within s 882(4)(g).

20. Having regard to the apparent legislative intent evinced in the provisions of s 882(4), which is to give the court the power to compensate a party disadvantaged by the unmeritorious conduct of another party in the appeal, there is no reason why s 882(4)(g) ought not to be construed as extending to a wide variety of unmeritorious conduct in the appeal, such as the presentation of irrelevant evidence or the raising of plainly unarguable matters.

21. While the decision in Shaw rejected the proposition that the "responsibilities" referred to in the corresponding provision of the IPA extended to include an obligation to recognise any "weakness in one’s case and to respond accordingly by not pursuing the matter further", that case was not concerned with the matter in issue before the learned member. That is, whether the responsibilities of a party resisting an appeal extend to an obligation to recognise, not that its case merely has weaknesses, but that its resistance is without foundation or substance and to refrain from resistance in such a situation. In other words, can a party be said to fail to properly discharge its responsibilities in an appeal when it resists an appeal on grounds that are plainly baseless and completely unsustainable? In our view, s 882(4)(g) is capable of encompassing such a situation. That being so, it should be acknowledged that there may be some degree of overlap between the failure to discharge one’s responsibilities in an appeal and the "frivolous or vexatious" ground in s 882(4)(b). Conduct which falls short of being "frivolous or vexatious", may come within s 882(4)(g) and a fortiori so would the more serious conduct that could be characterised as  "frivolous or vexatious".

22. Counsel for the respondent contended that for the power in s 882(4)(g) to be enlivened it would be necessary to show some wilfulness or mala fides in the failure to discharge the relevant responsibility.   We do not consider that there is any basis to import such a requirement as a necessary element, although clearly such a factor may be a relevant matter for consideration if it could be shown to be present. 

23. We therefore consider that the learned member erred in considering that he was constrained by the Planning and Environment Court decisions in adopting a narrow interpretation of s 882(4)(g) of the Act. Consequently, he erred in concluding that the power to award costs under s 882(4)(g) of the Act could not be attracted in the circumstances of this case. In those circumstances, the discretion falls to be exercised afresh.

    Should the discretion in s 882(4)(g) be exercised?

24. It is now convenient to turn to the second ground of the appellant’s argument as to how s 882(4)(g) is attracted by the respondent’s conduct in this particular case. The appellant pointed to the respondent’s conduct in supporting the review decision by resisting the appeal on the basis of groundless arguments and in persisting in its approach until the eve of the hearing of the preliminary issue, notwithstanding that the nature of the appeal was outlined in annexure C to the notice of appeal. That dealt with the 2000 Regulation, but it is said outlined arguments which were equally applicable to the 2002 Regulation and also maintained that the application had not been considered in the review in accordance with the statutory requirements of s 210 of the Act.

25. The respondent countered that its conduct ought not to be seen as a failure to properly "discharge its responsibilities in the appeal".  It contended that it acted properly in identifying what it regarded as the critical issue in the resisting of the appeal.  It was argued that it was only when the matter was tested by the delivery of the appellant’s submissions on 4 February 2005 that it became apparent to the respondent that its position was unsustainable in law and that it acted responsibly in then making the concessions rather than requiring a determination of the issue.  It was also submitted that, even if the concession had been forthcoming earlier, the parties would have had to incur costs in attending on 23 February 2005 for orders to remit the matter to the reviewer.

26. In our view those submissions should be rejected.  We consider that the respondent failed to properly discharge its responsibilities in the appeal in seeking to resist the appeal as it did and that the discretion to compensate the appellant for the costs incurred as a result of the appellant’s unmeritorious conduct in resisting the appeal should be exercised. 

27. It is of significance in this case that the comprehensive nature of the respondent’s concessions indicates that the respondent’s resistance was always ill founded and unsustainable. This was not a case where concessions were made with respect to a case which, though having weaknesses, was said by the respondent to have been arguable. The respondent conceded that "from the outset the appellant rightly contended that its application should have been assessed against the criteria outlined in s 210 of the Act". It conceded that the approach taken by the reviewer meant that "there had been a failure to decide the appellant’s application at all", so that the "exercise of the powers under s 210 and s 211 of the Act failed at the fountainhead because the task required by the statute had not been embarked upon". Not only had there been "no proper assessment" of the application by the reviewer, but it "was not assessed against the criteria outlined in s 210 of the Act at all". The respondent thus conceded that it was "plain" that the substantial merits of the application had never been explored.

28. In those circumstances, the respondent in effect sought to raise by way of preliminary point what was the sole basis for resisting the appeal and in agitating the preliminary point, raised an argument concerning the 2002 Regulation and asserted a position as to s 210 of the Act, which it conceded was always wholly unsustainable to support a review decision which it conceded was plainly invalid. But it only made the concessions that the entire resistance was untenable after all the costs associated with contesting the preliminary point had been incurred by the appellant, including the costs of the appearance on 23 February 2005. Those costs would have been relatively minor had the appearance been confined to the seeking of uncontested orders for the matter to be sent back to the reviewer.

29. The respondent was alerted to flaws in its approach to the 2002 Regulation in annexure C to the notice of appeal, which asserted, albeit in relation to the 2000 Regulation (which was the Regulation then relied on), that it did not have the effect contended for by the respondent. But the appellant, in the notice of appeal, raised with the respondent an even more fundamental flaw that the review decision suffered from the same problem as the initial decision in respect of the application, in that the statutory criteria in s 210 of the Act had not been considered.

30. Given the respondent’s comprehensive concessions that its position reflected throughout the period following the filing of the appeal was unsustainable in law (as indeed had been its conduct before, although that conduct cannot be said to be conduct "in the appeal") it is difficult to see how the respondent can be said to have properly discharged its responsibilities in the appeal.  The respondent had a responsibility to properly consider the notice of appeal when it received it in September 2004, to properly consider the sustainability in law of its resistance to the appeal and not to resist the appeal on a plainly groundless basis.  The respondent, especially as one having the obligations of a model litigant, cannot be said to have discharged its responsibilities in the appeal by waiting until the eve of a hearing and after substantial costs had been incurred to acknowledge that its approach to the appeal was always fatally flawed.  The fact that the respondent ultimately acted responsibly in conceding the matter before a determination was required to be made on 23 February 2005 does not detract from the unmeritorious nature of its resistance to the appeal. 

1. In the circumstances of this case, the respondent in proceeding in the manner described above, failed to discharge its responsibilities in the appeal.  Its conduct has resulted in substantial delay (the appeal being filed in September 2004), inconvenience and expense to the appellant.   In our view the appellant is entitled to its costs from the filing of the notice of appeal to the Land Court.  These include the costs associated with the preliminary point, including the appearances in December 2004 and on 23 February 2005 and the costs associated with the appellant pursuing the application for disclosure which was brought as a result of the resistance to the appeal.

2. We observe that the respondent’s conduct in resisting that appeal may well have amounted to frivolous or vexatious conduct within s 882(4)(b) of the Act. However, the application of that provision was not raised below. It was raised by this court on the present appeal. The appellant briefly dealt with the issue in oral submissions, although no leave was sought to amend the grounds of appeal before this court to rely on that provision. Given the determination reached as to the application of s 882(4)(g) of the Act, it is not necessary to determine whether the respondent’s conduct was such as to also attract the discretion under s 882(4)(b) of the Act.

   Other matters

3. Given the conclusion reached in respect of s 882(4)(g) of the Act, it is unnecessary to consider the application for leave to admit further evidence, nor whether there is any other basis for the awarding of costs.

   Orders

4. The orders of the Court are that:

   1.The appeal to this Court is allowed;

2.The respondent pay the appellant’s costs from the filing of the notice of appeal to the Land Court up to and including the hearing on 23 February 2005 to be assessed.

PHILIPPIDES J

JUSTICE OF THE SUPREME COURT

JJ TRICKETT

PRESIDENT OF THE LAND COURT

CAC MacDONALD

MEMBER OF THE LAND COURT