Christian Outreach Centre v Toowoomba Regional Council
[2012] QPEC 72
•14/11/12
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Christian Outreach Centre v Toowoomba Regional Council & Anor [2012] QPEC 72
PARTIES:
CHRISTRIAN OUTREACH CENTRE (COC)
(Appellant)v
TOOWOOMBA REGIONAL COUNCIL (TRC)
(Respondent)and
HSBG PTY LTD (HSBG)
(First co-respondent)FILE NO/S:
BD4801/2001
DIVISION:
Planning and Environment
PROCEEDING:
Application
ORIGINATING COURT:
Brisbane
DELIVERED ON:
14/11/12
DELIVERED AT:
Brisbane
HEARING DATE:
24/09/12 – 25/09/12
JUDGE:
Searles DCJ
ORDER:
1. UCPR 668 Application dismissed;
2. Application for costs of and incidental to the “substantially different development point” issue dismissed.
CATCHWORDS:
UCPR Rule 668,Application for costs, SPA s 457(2)(f); Rule 4 Planning & Environment Court Rules 2010 – whether abandonment of issue at trial amounted to failure to proceed in an expeditious way
COUNSEL:
Applicant: G.J Gibson QC & S.M Ure
First Respondent: J.D Houston
Second Respondent: D.RGore QC & B.D Job
SOLICITORS:
HWL Ebsworth
Corrs Chambers Westgarth
Connor O’Meara
Applications
This involves two applications by HSBG Pty Ltd (HSBG) arising out of this court’s decision in this matter of 18 April 2012[1]. By originating application, the appellant (COC) sought declaratory relief as to the validity of the Council decision of 7 November 2011 approving a permissible change to a development approval of 6 July 2009 (COC application). The following declarations in favour of COC were made:-
[1]Christian Outreach Centre v Toowoomba Regional Council and HSBG Pty Ltd [2012] QPEC 029
1. Declaration that the change, the subject of a Request to Change an existing approval pursuant to s 369 of the Sustainable Planning Act 2009, lodged by Place Design Group on behalf of HSBG Pty Ltd with the Respondent, Toowoomba Regional Council, on 20 July 2011 is not a permissible change within the meaning of s 367 of the SPA; and
2. Declaration that the decision of the Toowoomba Regional Council made on 7 November 2011 and notified to Place Design by letter dated 15 November 2011 is of no force or effect.
HSBG now makes two applications. Firstly, that the above declarations be set aside, and that the issue of discretionary considerations be retried having regard to the contents of the draft Toowoomba Regional Planning Scheme. That was formally adopted by resolution of the Council on 20 March 2012 to take effect from 1 July 2012. This application is made pursuant to UCPR 668 (Rule 668 application). The second application is for costs of that part of the declaratory proceedings relating to whether the abovementioned change to the Council approval resulted in a substantially different development (Costs Application). That ground was relied upon by COC but not proceeded with at the conclusion of the hearing, COC conceding that it could not persuade the court on that issue.[2]
[2]Ibid, para 2
Rule 668 application
Rule 668 of UCPR provides:-
668 Matters arising after order.
(1) This rule applies if –(a) facts arise after an order is made entitling the person against whom the order is made to be relieved from it; or
(b) facts are discovered after an order is made that, if discovered in time, would have entitled the person against whom the order is made to an order or decision in the person’s favour or to a different order.
(2) On application by the person mentioned in subrule (1), the court may stay enforcement of the order against the person or give other appropriate relief.
(3) Without limiting subrule (2), the court may do one or more of the following –
(a) direct the proceedings to be taken, and the questions or issue of fact to be tried or decided, and the inquiries to be made, as the court considers just;
(b) set aside or vary the order;
(c) make an order directing entry of satisfaction of the judgment to be made.
HSBG relies upon r 668(1)(b) above, so it must establish two things:
(a) That facts were discovered after the declaratory orders of 18 April 2012; and
(b) Had those facts been discovered prior to 18 April 2012, HSBG would have been entitled to an order in its favour dismissing the COC application in lieu of the declarations made.
Facts relied upon by HSBG
In summary HSBG argues that r 668 is enlivened because of the following:-
(a) HSBG and its legal representatives discovered, after judgment on 18 April 2012, that the Council had adopted a draft planning scheme on 20 March 2012, its new scheme, which would take effect on 1 July 2012;
(b) Under the new scheme, a development application seeking approval for the subject development, inclusive of the changes approved by the abovementioned impugned decision of the Council, would have required code assessment rather than impact assessment as under the old scheme;
(c) COC would not, therefore, be entitled to make a “properly made submission” as defined in SPA in relation to any code assessable development application made by HSBG under the new scheme; and
(d) The above facts would have been material to the exercise of the discretion to grant the declaratory relief to COC and would have resulted in that discretion being exercised in favour of HSBG with dismissal of the COC application.
Factual background
The original HSBG application of 20 May 2008 sought a Material Change of Use – Impact Assessable – retail showroom, indoor recreational facilities (gym) and food outlet (café/restaurant) on land at 471-493 Hume Street, Kearneys Spring, Toowoomba. As I have said, it was impact assessable.
The Council approved that application on 6 July 2009. On 20 July 2011 HSBG lodged a request to make a Permissible Change to that Approval pursuant to s 369 of SPA. Council approved that change on 7 November 2011. That is the approval declared invalid on 18 April 2012.
Mr Martin, the Council’s principal planner,[3] gave evidence of steps taken by Council leading to its adoption of the new scheme. It was adopted on 20 March 2012 with public notification in the Queensland Government Gazette on 23 March 2012 notifying of commencement on 1 July 2012.[4]
[3]Affidavits 21 June 2012 and 20 September 2012
[4]See affidavit of A D Storie, 1 June 2012, Exhibit ADS-1
The extent of the public notification of the Council’s proposed new scheme is usefully summarised in the submissions of COC by reference to the Martin affidavits. They are:-
(a) a notice published in the Toowoomba Chronicle on 23 July 2011 and 30 July 2011 (para 7);
(b) a notice identical to those published in the Chronicle was also available on the respondent’s website between Monday, 25 July 2011 and Friday, 2 September 2011 and in each of the respondent’s 10 service centres between Monday, 25 July 2011 and Friday, 2 September 2011 (para 8)
(c) notice of the exhibition of the proposed scheme was published in eight local newspapers circulating within parts of the Toowoomba Regional Council area (para 9);
(d) On 18 July 2011 a letter was sent to all landowners within the Council area advising them of the exhibition of the proposed scheme and how to obtain additional information (para 9(2));
(e) on 20 July 2011 a letter was sent to landowners affected by specific issues advising them of the exhibition of the proposed planning scheme and how to obtain additional information (para 9(3));
(f) 206 television advertisements were screened between Saturday, 23 July and Thursday, 1 September on WIN, Southern Cross, and Channel 7 advising of the exhibition of the proposed planning scheme (para 9(4));
(g) 470 radio commercials were run between Saturday, 23 July and Thursday, 1 September 2011 on stations 4AK, 4WK, 4GR and CFM advising of the exhibition of the proposed scheme;
(h) during the consultation period, presentations about the proposed planning scheme were made by council officers to some seven community groups (para 10(3)).
Mr McNab, the managing director of HSBG,[5] acknowledged that for some time he had been aware of the contemplated new scheme and that, three years previous to June 2012, he had participated in a focus group organised by the Council to discuss issues concerning the preparation of the new scheme. His recollection of the discussions was that they were primarily concerned with residential development and the revitalisation of the central business district of Toowoomba. He said that at no stage was the subject land discussed.
[5]Affidavit 4 June 2012
Mr McNab further said that he was aware in or about August 2011 that a draft of the new planning scheme had been notified by the Council for public consultation and that the McNab Group, of which HSBG is a member, made a submission or submissions in relation to the scheme concerning other land owned by the group in Neil and Laurel Streets, Toowoomba.[6]
[6]That was made on 10 September 2011 – See affidavit H Martin, 21 June 2012, Exhibit HM1, p 54
7Affidavit 6 June 2012
Ms Katrina Carusi, an employee of the McNab Group, deposed7 that, after she received a copy of the judgment of 18 April 2012, she was informed by one Danielle Fitzpatrick, a planning officer of the Council, that the subject development may potentially be code assessable under the provisions of the new scheme. It is clear from Ms Carusi’s affidavit that, prior to that conversation she was aware of the proposed new scheme, but not aware that it had already been adopted by the Council on 20 March 2012 to commence on 1 July 2012. She was also unaware the new scheme affected the zoning of the subject land or in any way affected the level of assessment of the proposed development.
Following the conversation with Ms Fitzpatrick on 18 April 2012, Ms Carusi informed Mr McNab of what she had been told, and the next day 19 April 2012 she and Mr McNab met with HSBG’s solicitors. Mr McNab was unaware the new scheme had been adopted by Council on 20 March 2012 until his solicitors told him. Whilst he was aware that a new scheme was in prospect, he said he saw no reason to make any such enquiries prior to the 18 April 2012 judgment because, until that date, he regarded the development approval as valid. He did not see how the potential future zoning under the new scheme would be of any relevance to the COC application in which that approval was under attack.
Mr Connor, HSBG’s solicitor, deposed[7] to the fact that, prior to the judgment on 18 April 2012, he was unaware that the Council was in the process of making a new planning scheme. It was at the meeting with Mr McNab and Ms Carusi on 19 April 2012 that he was informed for the first time by them that a draft planning scheme was in the process of preparation by the Council with changes to the existing scheme which may render the subject development code assessable rather than impact assessable. It was only after he received the copy of the new scheme from Ms Carusi later that day that he discovered the scheme had already been adopted on 20 March 2012 to commence on 1 July 2012. He then confirmed with Ms Carusi that, if a development application for a material change of use was lodged after 1 July 2012 under the new scheme, it would be code assessable.
8Affidavit 1 June 2012
In fact an application under the new scheme was lodged by HSBG on 2 July 2012.[8] The Council acknowledged the application by letter dated 10 July 2012[9] confirming that the application was code assessable[10] and that the following codes may be applicable to that assessment:-
9Exhibit 5, p 1. Note covering letter of Place Planning Design Environment is wrongly dated 2 May 2012. It is clear from the actual application at p 6 of the Exhibit that the correct date is 2 July 2012.
10Ibid, p 209
11Ibid, p 210
Zones:
6.3.2 Major Centre Zone Code
Overlays:
8.2.1 Airport Environs Overlay Code
Other Codes:
9.3.1.1 Centre Activities Code
9.3.2.1 Works and Services Code
9.3.4.1 Advertising Devices Code
9.3.4.2 Environmental Standards Code
9.3.4.3 Integrated Water Cycle Management Code
9.3.4.4 Landscaping Code
9.3.4.5 Transport, Access and Parking Code
Council also advised that the Department of Transport and Main Roads was a concurrence agency.
The application is presently before the Council for assessment. Its substantive content and compliance with the new scheme is a matter for the Council and not for this court on this application.
Principles relating to the interpretation of r 668
In 2006 the Court of Appeal considered r 668 in Ivi Pty Ltd v Baycrown Pty Ltd.[11] After expressing his agreement with the reasons and proposed orders of Wilson J, apart from one matter which is irrelevant to this application, Jerrard JA made the following statements:-
12[2006] QCA 461
[13] … In Rockett & Anor v The Proprietors “The Sands” BUP No. 82[2002] 1 Qd R 307 McPherson JA wrote:
‘… rule 668 is in all material respect a re-enactment of O 45 r 1 of the Rules of the Supreme Court 1900. Since the decision in KGK Constructions Pty Ltd v East Coast Earthmoving Pty Ltd [1985] 2 Qd R 13, it has been applied in a number of cases in which relief has been sought and granted against the operation of ‘self executing’ orders, because of facts arising after an order was made.’
[15] Baycrown complained that the learned trial judge, who heard the UCPR r. 668 application while the special leave application was pending, applied a test that was too limited when construing r. 668. The learned judge ruled that it was relevant to have regard to the principles applicable when a party appealed and relied on fresh evidence. In the latter case the appropriate approach was described by the High Court in Wollongong Corporation v. Cowan (1955) 93 C.L.R. 435 in these terms:
‘The discovery of fresh evidence in such circumstances could rarely, if ever, be a ground for a new trial unless certain well-known conditions are fulfilled. It must be reasonably clear that if the evidence had been available at the first trial and had been adduced, an opposite result would have been produced, or, if it is not reasonably clear that it would have been produced, it must have been so highly likely as to make it unreasonable to suppose the contrary. Again, reasonable diligence must have been exercised to procure the evidence which the defeated party failed to adduce at the first trial.’
[16] In Commonwealth Bank of Australia v Quade (1991) 178 C.L.R. 134 at 140, the joint judgment repeated that passage with apparent approval, while remarking that it was unnecessary to consider whether the somewhat obscure qualification expressed by the words ‘or, if it is not reasonably clear that it would have been produced, it must have been so highly likely as to make it unreasonable to suppose the contrary’ represented anything more than an illusory relaxation of the primary test, which was that it be “reasonably clear … an opposite result would have been produced.” I agree with Wilson J. that it was appropriate for the learned trial judge to consider those principles. Doing so is supported by the decision of Handley J.A. in Harrison v. Schipp (2002) 54 N.S.W.L.R. 612, where that court considered the availability of a Bill of Review and its nature. ‘That action for review was the source of the power described by Griffith C.J. in Woods v. Sheriff of Queensland, and reproduced in O. 45 r. 1, as described by McPherson J.A. in Rockett v. The Proprietors – ‘The Sands’ B.U.P. No. 82, and in his earlier judgment in K.G.K. Construction Pty Ltd v. East Coast Earthmoving Pty Ltd (1985) 2 Qd.R. 13 at pp. 19 to 20. The judgment in Woods v. Sheriff of Queensland makes clear that Griffith C.J. was describing relief similar to that obtainable by a Bill of Review.
[17] Handley J.A. wrote of that relief, in Harrison v. Schipp:
‘If the decree had been enrolled, limited relief was still available by a bill of review. Such a bill could be brought for error apparent, that is an error of law appearing in the decree itself, or for some new matter which had arisen since the decree, or, with the prior leave of the court on discovery of new matter. On an application for leave the court had to be satisfied that the matter newly discovered was relevant and material, such as might probably have occasioned a different determination, and that it was not discoverable by due diligence before the trial.’ (citations omitted).
[18] It is accordingly consistent with the ultimate source of r. 668 to have close regard to those described principles when asking whether facts newly arising or discovered would ‘entitle’ a person against whom an order had been made to be relieved from it, or to an order or decision in that person’s favour. Any lesser degree of proof would not establish that the applicant was ‘entitled’ to relief from, or to a different, order.
In her judgment Wilson J said:-
“[74] In Breen v Lambert Thomas J dealt with an application to stay a judgment pursuant to O 45 r 1 based on the discovery of further facts ante-dating the trial. His Honour reviewed the old procedures in chancery and at common law. Speaking of the chancery practice and then of the common law he said at pp 22 – 23 –
‘Clearly then the principles protecting the finality of judgments and the refusal by courts to interfere by reason of evidence available but undiscovered before action unless such evidence could not by reasonable diligence have been discovered in time, and other related principles, are of long-standing. Jessel M.R.’s remarks show that these principles were not swept away by the Judicature Act. Nor have they been undermined by the rules introduced by the Judicature Act (see the schedule to the Judicature Act 1876, including O. XLII r.22). The same may be said with respect to the abolition of the common law writs of audita querela. The abolition of the writs by O. LVII r. 11 in 1876 was accompanied by recognition of the court’s power to relieve against judgments on the ground of discovery of further facts, as Griffith C.J. observed in Woods v Sheriff of Queensland. The similarity between those rules and O 45 r 1 as introduced in the Rules of the Supreme Court 1900 (at least in the operative part that deals with the discovery of facts after judgment) and the general discretion entrusted to the court in such a situation is significant.’ …
I agree with the following general observation made in A.M.I.E.U v Mudginberri:
‘The principle that there must be an end to litigation is a powerful one. Courts should not be ready to permit unsuccessful parties to attempt to overturn judgments by raising new considerations. For that reason, it is essential that a party seeking to overturn a judgment demonstrates that he or she does so only upon the footing of matters discovered since the judgment was entered. Plainly, such evidence must be weighty …”
The third member of the court, McKenzie J, relevantly, agreed with Jerrard JA and Wilson J stating:-
“[43]The interpretation and ancestry of r 668 are discussed in the reasons for judgment of Jerrard JA and Wilson J. I respectfully adopt their analysis and the conclusion they reach as to the relevant factors in exercising the power under r 668(1)(b).”
Another relevant decision is Rankin v Agen Biomedical Ltd[12], where the Court of Appeal held that the previous rule namely order 45, r 1 of the Supreme Court Rules, , the equivalent of r 668, was applicable where an applicant for relief had to depend on a favourable exercise of discretion and claimed no absolute right to relief as is the case here.
13[1999] 2 Qd R 435 at 437-438
First limb of r 668(1)(b)
By reference to the above principles, the first limb of r 668(1)(b) that HSBG must satisfy, is that the relevant facts relied upon could not have been ascertained by reasonable diligence before the delivery of the judgment on 18 April 2012. I am unable to accept they could not have been. HSBG was aware that a new scheme was in prospect at least since August 2011 when Mr McNab became aware a draft had been notified by the Council for public consultation and could with a minimum of effort either by itself or through its solicitors have made enquiries to monitor the progress of its introduction. It is not to the point that Mr McNab’s focus was on other land owned by his group. Given that it was aware that a new scheme was in prospect, no explanation was offered by HSBG, as to why it did not monitor its progress leading to the COC hearing on 7 March 2012. Had HSBG done that it would have learnt of its introduction, at the latest, on or around 20 March 2012, when the Council adopted it or on 23 March 2012 when it was gazetted. It would also almost certainly have learnt of an earlier letter of 18 February 2012 from the Minister for local government to the Council mayor advising the Council it could adopt the planning scheme considered by it on 20 December 2011.[13] Perhaps pre gazettal enquiries may not have been definitive as to the final content, given that the new scheme finally adopted was different to that initially put on display. Changes were made after submissions that were received upon public notification. But the point is that, had HSBG and its advisers been reasonably diligent, they would have been monitoring the progress of the introduction of the new scheme and would have been aware of its introduction on 20 March 2012 prior to the delivery of judgment on 18 April 2012. It cannot be said therefore, that the acts relied upon were undiscoverable until after 18 April 2012. HSBG fails on this first limb which is fatal to the application.
14Exhibit 3, p 105
Second limb of r 668(1)(b)
But, even if it was the case that HSBG satisfied the requirements of the first limb of s 668(1)(b), I am still not satisfied that, had the court been informed of the effect of the new scheme either prior to the end of the hearing or prior to judgment upon an application to re-open the HSBG case, any different order would have been made.
HSBG relied on authorities[14] to the effect that a court will decline to make a declaration if it will produce no foreseeable consequences for the parties. In other words, it is not for a court to answer abstract or hypothetical questions. That is undoubtedly correct.
[14]Ainsworth v CJC (1992) 175 CLR 564 at 581-582; Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180 at 188 and 189 and Tebbutt v Egg Marketing Board (NSW) (1976) 2 NSWLR 179 at 184-185 and 188
HSBG also relied on two decisions of this court[15] as examples of decisions where the court found that any declaration would be of no utility given the absence of foreseeable consequences for the parties. But in both those cases, the relevant applications had been subject to analysis against the relevant planning scheme. Here, HSBG seeks to rely upon that part of the new scheme rendering its application thereunder code assessable without having to establish compliance with other aspects, namely each of the relevant codes applicable under the new scheme. The effect of that, as COC argued, is that HSBG would have the benefit of a subsisting approval under the old scheme, found by the court to be invalid. I see no reason why, in the exercise of its discretion, the court would relieve HSBG of assessment against the codes reflecting the Council’s contemporary expression of its planning requirements. I say that, conscious of the fact that the sole ground for the finding of invalidity was the denial to COC of the entitlement to make a submission under the old scheme.
[15]Bon Accord Pty Ltd v BCC (2007-2008) 163 LGERA 288; Stevenson Group Investments Pty Ltd v Nunn (2011) QPEC 151
Conclusion re r 668 application
HSBG fails on both limbs of the r 668 application. The application is dismissed.
Costs application
HSBG seeks costs on a standard basis under s457 of SPA, limited to its costs of and incidental to that part of the COC Application relating to the “substantially different development point” (Costs Issue).
Background
From the filing of the originating application to the end of the first day of the two day hearing, COC relied on essentially two arguments, namely:
(a) the changes proposed to the extant development approval, which was ultimately approved by TRC, resulted in a substantially different development for the purpose of s.367 of SPA, the abovementioned Costs Issue (“the substantially different development point”); and
(b) no reasonable entity could have formed an opinion that the changes proposed to the extant development approval would not have provoked a properly made submission (“the Wednesbury Point”).
In the Judgment of 18 April 2012, COC was successful on the Wednesbury Point, which ultimately decided the application resulting in the declarations made. In that judgment[16] the court said:
“In its opening the applicant foreshadowed reliance upon SPA section 367(1)(a)(c), but at the conclusion of the hearing reliance was confined to section 367(1)(c). The applicant conceded that he could not persuade the court that the council’s decision would be vitiated under section 367(1)(a), so that the council’s decision in that respect stands. Accordingly, there is no need for me to consider that ground”
[16]Christian Outreach Centre v Toowoomba Regional Council & HSBG Pty Ltd [2012] QPEC 029 para 2
Written submissions were exchanged between the parties at the completion of evidence. COC’s final written submissions did not contain any submission on the costs issue. It was at this point counsel for COC conceded the issue would not be pursued.
Submissions of HSBG
HSBG relies on s457(2)(f) of SPA which provides:
(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 thefollowing circumstances—
........(f) a party has incurred costs because another party has
defaulted in the court’s procedural requirements;
The procedural requirements spoken of in s 457(2)(f) of SPA refer to those identified in the Rules or a Court order.[17] Although “Procedural requirement” is not a defined term in SPA, HSBG argues that the procedural requirement contravened is to be found in Rule 4 of the Planning and Environment Court Rules 2010, which relevantly provides:
[17]Heilbronn and Partners v Pine Rivers Shire Council 1993 80 LGERA 434; Kangaroo Point Residents Association v Brisbane City Council 2006 QPELR 471
“Philosophy – overriding obligations of parties and court
(1) The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in proceedings at a minimum of expense.
(2) Accordingly, these rules are to be applied by the court with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.
(3) In a proceeding in the court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way.”
HSBG points to Sub-rule 3, and says that as to the costs issue, COC did not conduct itself in an expeditious manner so as to avoid undue expense. That undue expense incurred by HSBG was the costs involved in the preparation of detailed written submissions on that issue and calling evidence on the issue.
HSBG finally submits that no explanation was given by COC as to why the concession was made and why it was not made earlier. That conduct, it is said, is inconsistent with the philosophy of Rule 4 and a breach of Rule 4(3) evidencing a failure to proceed in an expeditious way.
Submissions of COC
As to the procedural requirements spoken of in s457(2)(f), COC relies on the decision of Skoien SJDC in Begley v Pine Rivers Shire Council [1995] QPLR 228, where His Honour said:-
“I am unable to agree that the matters complained of amount to default in the procedural requirements. An obvious case of that would be the failure to comply with a mandatory requirement of the rules or with an order of the Court. But nothing of that type occurred here. The way in which the issues I have referred to were defined or litigated by the Appellant was not so faint or unmeritorious as to be seen to be in flagrant defiance of any order defining them. The worst that can be said of them is that some were weakly contested. Abandonment, even late abandonment, of an issue is not in my view a default in a procedural requirement in the absence of some specific requirement of an order or a rule of court. If it finally depends on the exercise of a discretion, I would not exercise it against the Appellant in the circumstances.”
Begley exhibited a similar circumstance, in that the matters complained of concerned firstly a ground of appeal relating to wildlife which raised a number of issues necessitating an expert being engaged only to have the issue reduced to one species, that of a grass owl. Further, the issue of potential for bushfires was later abandoned.
Relying on Begley, COC points to the absence of any “mandatory” or “specific” requirement it has failed to comply with, and argues that Rule 4 is no more than an expression of the “philosophy” addressing the overriding obligations of parties and the court.
COC further argues that Rule 4, found in Part 1 – Preliminary of the Court Rules, does not prescribe a “procedural requirement” as contemplated by s457(2)(f). Rules of that nature are found in Part 2 – Conduct of Proceedings. Unlike the specific requirements found in Part 2 of the Rules, COC submits that Rule 4(3) involves a value judgment as to whether a party has proceeded in an “expeditious way”, and in most cases it could be argued that opinions on that matter will differ.
COC also pointed to the fact that Rule 4 substantially replicates UCPR 5(1-3) but stops short of adopting UCPR 5(4), which provides:
“(4) The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court.”
COC says that “sanctions” plainly includes the power to award costs, and that the failure to include that provision in Rule 4 is a significant indicator that the rule is not intended to have costs consequences in the Planning and Environment Court.
COC also made a number of submissions in relation to the courts discretionary power to make an order for costs in circumstances such as these. Those are:
(a) An explanation as to why its concession was not offered voluntarily or at an earlier time was not requested or is required to be offered;
(b) HSBG submits that the concession was extracted unwillingly. That is also irrelevant;
(c) The substantially different development point was based on COC’s concern as to the impact, on its land, of the relocation of the main entrance driveway to HSBG’s development from approximately mid-way along the frontage of its land to a point adjacent to the northern boundary of COC’s land. Those concerns were supported by expert opinions from a traffic engineer (Mr Crank) and an acoustic engineer (Mr Pearce). Although HSBG filed expert affidavits on which it relied (Mr Viney, traffic engineer and Mr Brown, acoustic engineer) disagreement with respect of issues of requiring professional expertise persisted to the hearing. At the conclusion of the evidence on day 1, there remained disagreement between the traffic engineers as to the extent of queuing of traffic from the proposed changed access location to HSBG’s land across an entrance to and driveway on COC’s land, adjacent to its northern boundary. Other differences of opinion between the traffic engineers were also unresolved. The differences between the acoustic engineers were resolved only after an ad hoc joint meeting held during the afternoon of the first day. It was against that background that COC’s written submissions did not address the substantially different development point, and the concession referred to at paragraph 2 of the reasons for judgment was made.
(d) The concession potentially avoided the case going into a third day and also relieved the court from having to decide on that point. The making of the concession was consistent with the philosophy of Rule 4, not contrary to it.
(e) To assert, as HSBG does, that the concession should have been made at an earlier time, ignores the fact that issues remained live in the proceeding. If accepted, it would impose far too onerous an obligation on parties’ legal representatives during a hearing.
Consideration of arguments
It must firstly be considered whether Rule 4 contains “procedural requirements” as contemplated by s457(2)(f) SPA. I accept COCs submission that Rule 4 expresses a general philosophy, addressing the overriding obligations of parties and the court, as implied by the heading. But I cannot accept that the expression “proceed in an expeditious way” does not connote a procedural requirement. In Begley v Pine Rivers Shire Council the court found, in a case with facts similar to these, that abandonment of an issue, even at a late stage, was not a default in a procedural requirement. However as was conceded by COC, and as the court noted, that finding was made in the absence of a mandatory or specific requirement in the Rules or order of the court.
I accept that Rule 4 is not specific in nature as to the procedural requirement as is UCPR 5(4), but I do not see that this warrants reading down the plain language of the Rule which imposes upon a party by way of an implied undertaking to the court the obligation to proceed in an expeditious way. I cannot accept the argument of COC that the absence of an equivalent to UCPR 5(4) in Rule 4 indicates that a breach of Rule 4 was not intended to empower the court to impose sanctions if Rule 4 was not complied with. Against that argument, it might also be said that UCPR 5(4) confines the court’s power of sanctioning to non-compliance with the specifics set out, namely a rule or an order of the court whereas the legislature intended that no such restriction should be placed on this Court in relation to a breach of Rule 4(3). I consider that, under Rule 4(3) the failure of a party to proceed in an expeditious way, can expose that party to an order for costs in the appropriate circumstances.
There could well be circumstances beyond the breach of a specific rule or a court order which could found a conclusion that a party was not proceeding in an expeditious way. Some examples are:-
(a) Failure to answer correspondence in a timely manner;
(b) Failure to properly investigate the nature and extent of a party’s case early in the proceedings leading to repeated amendment of pleadings is another; and
(c) Unjustifiable late abandonment of an issue in the face of previous invitations by another party to do so.
There are doubtless others. To say that a party can fail to proceed in an expeditious way in breach of Rule 4(3) but that, absent a breach of a specific rule or court order, Rule 4 is not breached because it is not a procedural requirement is not how the Rule should be read.
Did COC fail to act in an expeditious way in breach of Rule 4(3)?
The next question is whether, in all the circumstances COC failed to act in an expeditious way, in breach of Rule 4(3). “Expeditious” is defined in the shorter Oxford English dictionary as:
“1.Speedily performed or given; conducive to speedy performance;
2.Of a person, acting or moving with expedition; speedy.”
What we have here is a situation where on the issue of traffic and acoustics both parties called experts and those experts gave evidence. As COC has argued, during day one, traffic issues were still in dispute between the experts but, as a result of an ad hoc conference between acoustic experts at the end of day one the outstanding issues between them were resolved. No evidence was put before the court by HSBG in support of the argument that the decision of COC not to further agitate the costs issue was as a result of any lack of expedition in the conduct of its case. A court should be cautious in readily penalising a party where that party has at any stage formed the view that a particular issue should not be further pursued. Of course, there may be incidences where that notification is a communication of a decision made a long time before the court, or other parties, are informed and in circumstances where the unreasonable silence hitherto has caused the parties to incur costs which could have been avoided with earlier notification. But that is not the case here.
Those involved in the litigation process know from experience that it is not unusual for issues which at an earlier stage of proceedings or preparation appear to have merit but which later take on a different hue.
If it was thought by parties that each time there arose a justifiable change of circumstances warranting abandonment of an issue that a party would be vulnerable to a costs order, it may lead to a situation where the very evil the rules seek to address is perpetuated by the running of points which it are reasonably considered to have no merit. I speak of cases where a party considers at an advanced stage that it has a sufficiently strong case to carry the day on other issues without putting the court to the inconvenience contrary to the public interest, and the other parties to the costs, of further time spent on other points. I do not by that mean to suggest that in the present case much additional time would have been incurred had the relevant issue been agitated by COC because it was only at the submissions stage that the issue arose.
Conclusion
In all the circumstances I am not persuaded that there is any sufficient evidence that the conduct of COC should attract an order for costs. The application is dismissed.
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