Copley v Logan City Council

[2012] QPEC 43

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Copley v Logan City Council & Anor [2012] QPEC 43

PARTIES:

MARIE AGNES DOYLE, CECILIA BRIDGET DOYLE AND PETER DANIEL DOYLE
(Applicants/Co‑respondents)

AND

LOGAN CITY COUNCIL
(Respondent)

AND

GREGORY CHARLES COPLEY
(Respondent/appellant)

FILE NO/S:

1788/11

PROCEEDING:

Application for costs

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

21 June 2012

DELIVERED AT:

Brisbane

HEARING DATE:

8 June 2012

JUDGE:

RS Jones DCJ

ORDER:

1.    Gregory Charles Copley, the respondent/appellant, is to pay one-third of the applicants/co‑respondents’ costs of and incidental to the application heard by me on 3 April 2012.

2.    Such costs to be agreed or failing agreement to be assessed on a standard basis.

CATCHWORDS:

COSTS – Section 457 Sustainable Planning Act 2009 – Section 4.1.23 Integrated Planning Act 1999 – where applicants/co‑respondents substantially (but not wholly) successful in an application to strike out appellant’s appeal – whether elements of appeal were instituted to delay or obstruct and/or were otherwise frivolous or vexatious – whether costs should be awarded on indemnity basis or standard basis –where it was determined that a number of grounds of appeal were manifestly unarguable and disclosed no reasonable cause of action, whether that constituted frivolous or vexatious proceedings for the purposes of awarding costs

Integrated Planning Act 1999 (Qld), s 4.1.23
Sustainable Planning Act 2009 (Qld), s 457
Uniform Civil Procedure Rules1999 (Qld), r 689

Colgate-Palmolive Co & Anor v Cussons Pty Ltd (1993) 118 ALR 248; [1993] FCA 536, considered
Copley v Logan City Council & Anor [2012] QPEC 39, cited
Emanuel Management Pty Ltd (in Liq.) & Ors v Foster’s Brewing Group Ltd & Ors and Coopers & Lybrand & Ors  [2003] QSC 299, considered
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd & Ors (1988) 81 ALR 397, considered
Gold Coast City Council v Metrostar Pty Ltd [2005] QPELR 641; [2004] QPEC 29, cited
Hall & Ors v Nanango Shire Council & Ors (No. 2) [2005] QPEC 105, cited
Kalglen Pty Ltd v Brisbane City Council & Ors; Stratcliff Pty Ltd v Brisbane City Council & Anor [2009] QPELR 643; [2009] QPEC 34, cited
Millmerran Shire Council v Smith & Anor [2008] QPEC 113, cited
Mudie v Gainriver Pty Ltd (No 2) [2003] 2 Qd R 271; [2002] QCA 546, considered
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11, considered

APPEARANCES:

Mr M. Connor, Solicitor, of O’Meara Solicitors for the applicants/co‑respondents

Mr J. Dillon of counsel, instructed by Corrs Chambers Westgarth, for the respondent council

Mr G. Copley, the respondent/appellant, appeared in person

1. This proceeding involved an application for costs brought by the applicants/co‑respondents against the respondent/appellant, Mr G.C. Copley.  For the reasons set out below, the orders of the court are:

1.Gregory Charles Copley, the respondent/appellant, is to pay one-third of the applicants/co‑respondents’ costs of and incidental to the application heard by me on 3 April 2012.          

2.Such costs to be agreed or failing agreement to be assessed on a standard basis.          

Background

1. On or about 29 February 2008, the applicants/co‑respondents lodged a development application under a superseded planning scheme with the former Beaudesert Shire Council for a development permit for:

(i)          a material change of use of premises; and

(ii)         reconfiguration of a lot.

1. The Beaudesert Shire Council no longer exists and its local government area is now the responsibility of the respondent, the Logan City Council.

1. Essentially, the development application was for an increase in density, and the reconfiguration of one lot into 25 lots.  The development, if completed, will be a fairly typical rural residential subdivision located on the southern side of the Logan River at Stockleigh.

1. By Negotiated Decision Notice 19 October 2011, the respondent approved the development subject to conditions.  On 21 December 2011, Mr Copley filed an “amended” notice of appeal in this court.  Accordingly, the substantive proceeding is a submitter appeal commenced by Mr Copley against the respondent Council’s decision to approve the applicants/co‑respondents’ development application.

1. The primary relief sought by Mr Copley in the substantive appeal is that the development application be refused in its entirety.  The bases for the relief claimed were:

(i)          that the respondent’s decision notice was invalid because it wrongly included Crown land and wrongly excluded a part of public road, namely Evergreen Road;

(ii)         no parkland is provided for;

(iii)        no or insufficient regard was given to “koala and wildlife habitat”;

(iv)        traffic issues; and

(v)         the subject land is flood affected.

1. As an alternative to the appeal being allowed in full, Mr Copley sought the following relief:[1]

   [1]Notice of Amended Appeal, p 2.

“In the alternative:

1.As to regular flooding of the Subject Site which consists of Logan River flats and sensitive River environs that no building envelop be permitted under 27.5 metres;

2. (i)‘The three’ lots consisting of 15,380 square metres numbered 1, 2 and 3 … be set aside for parks.

(ii)‘The three’ lots 13, 14 and 15 consisting of 12.58 Ha together with an area of land fronting the Logan River below 20 metres … and also identified in State Planning Policy (2/10) as SEQ Koala Protection Area, be specifically set aside for koalas, Wildlife Habitat and Logan River banks and its environs.

3.The amount of $500,000 be paid to Council as a contribution towards the respondent’s costs for bitumen sealing of Flynn Road and upgrade works to Flynn and Stockleigh Road intersection.

4.As to the respondent’s granting of an extra Lot as shown in its Negotiated Decision Notice dated 18^th October 2011 it unnecessarily increases the density and is dangerous to the lives of unsuspecting new residents of this flood development contained on dangerous high flooding River flats.”

The strikeout application

1. On 3 April 2012, I heard the applicants/co‑respondents’ application to strike out Mr Copley’s amended notice of appeal.  The application was largely successful in that, out of the five substantive issues raised in the amended notice of appeal, the only ground or issue not struck out was that concerned with the flooding of the subject land.  All of the other grounds were found to be manifestly unarguable and disclosing no reasonable cause of action.

1. The applicants/co‑respondents now seek their costs of and incidental to the hearing on 3 April 2012 on an indemnity basis or, in the alternative, on the standard basis.

Costs

1. Both parties proceeded on the basis that the issue of costs was to be determined by reference to s 4.1.23 of the Integrated Planning Act 1997 (IPA).  I do not agree.  While the development application was lodged before the introduction of the Sustainable Planning Act 2009 (SPA), and was dealt with by the respondent council under the IPA, that, in my opinion, does not require every aspect of these proceedings to be dealt with under the IPA.  I can see no reason why, in circumstances where this application was brought after the introduction of the SPA, costs should not be dealt with under that Act.  There is no question here of the substantive rights of the parties to costs under the IPA being adversely affected by the introduction of the SPA.  Fortunately, the outcome of this application would have been the same regardless of which legislation was applied.

1. The applicants/co‑respondents sought costs on the bases that Mr Copley’s appeal was substantially instituted merely to delay or obstruct and/or were frivolous or vexatious.  In this context, they relied on s 4.1.23 of the IPA, which relevantly provided:

“(1)Each party to a proceeding in the court must bear the party’s own costs for the proceeding.

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

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

(b)the court considers the proceeding (or part of the proceeding) to have been frivolous or vexatious.”[2]

[2]See para [9] of the applicants/co‑respondents’ written submissions.

1. Those provisions of the IPA are materially the same as s 457(1) and (2)(a) and (b) of the SPA:

“(1) Each party to a proceeding in the court must bear the party’s own costs for the proceeding.

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

(a) the court considers the proceeding was instituted, or continued by the party bringing the proceeding, primarily to delay or obstruct;

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

1. Before descending into the details of this application, it is important to bear in mind that, generally speaking, the purpose of costs orders is not to punish but to compensate.  In Oshlack v Richmond River Council,[3] McHugh J relevantly said:

“… costs are not awarded to punish an unsuccessful party.  The primary purpose of an award of costs is to indemnify the successful party.  If the litigation had not been brought, or defended, by the unsuccessful party, the successful party would not have incurred the expense which it did.  As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.”

[3][1998] HCA 11; 193 CLR 72 per McHugh J at para [67].

1. McHugh J also affirmed the general principle that ordinarily, costs would follow the event absent some disentitling conduct.[4] However, for reasons of public policy, it has been determined that each party to a proceeding in this court bears its own costs of the proceeding, save in the circumstances prescribed in s 457(2) of the SPA. It is not disputed that once the court’s discretion to award costs is enlivened, it has the power to order costs on an indemnity basis.

   [4]At para [69]. See also r 689 of the Uniform Civil Procedure Rules 1999 (Qld).

1. In my view, for the applicants/co‑respondents to succeed, it must be shown that the amended notice of appeal was, in substance, frivolous or vexatious.  I can find no basis for determining that Mr Copley instituted the appeal merely to delay or obstruct the applicants/co‑respondents.

1. In determining the strikeout application, I found that all of the issues raised by Mr Copley were, save for flooding, manifestly unarguable and did not raise a reasonable cause of action. Notwithstanding those findings, the question still remains whether, in all the relevant circumstances, Mr Copley’s appeal (save for flooding) could be properly characterised as frivolous or vexatious.  In Mudie v Gain River Pty Ltd (No. 2),[5] the Court of Appeal was concerned with the now repealed Local Government (Planning and Environment) Act1990, which relevantly provided in s 7.6:

   [5][2003] 2 Qd R 271; [2002] QCA 546.

“Subject to subsection (1A), each of the parties to an appeal or other proceedings is to bear their own costs.

(1A)The [Planning and Environment] Court may, upon application made to it, order such costs … as it considers appropriate in the following cases—

(a)where it considers the appeal or other proceedings to have been frivolous or vexatious.”

McMurdo P and Atkinson JJ relevantly said:[6]

[6][2002] QCA 546 at paras [35]-[37].

“The words ‘frivolous or vexatious’ are not defined in the Act and should be given their ordinary meaning, unfettered by their meaning in the very different context of striking out or staying proceedings for an abuse of process.  By the time an application for costs is made, the court knows the issues which have been litigated whilst in interlocutory applications, the court must to some extent speculate and must necessarily be cautious to ensure a deserving claimant is not unjustly deprived of the opportunity of a trial of the action.  The Macquarie Dictionary defines ‘frivolous’ as ‘of little or no weight, worth or importance; not worthy of serious notice:  … characterised by lack of seriousness or sense’ and ‘vexatious’ as ‘causing vexation; vexing, annoying …’.

Unquestionably, something much more than a lack of success needs to be shown before a party’s proceedings are frivolous or vexatious.  Although in a different context, some assistance can be gained from the discussion of the meaning of these words in Oceanic Sun Line Special Shipping Co Inc v Fay, where Dean J states that ‘oppressive’ means seriously and unfairly burdensome, prejudicial or damaging and ‘vexatious’ means productive of serious and unjustified trouble and harassment … those meanings are apposite here.

Whether proceedings are vexatious or oppressive will turn on the circumstances of the case but will include public policy considerations and the interests of justice.” (footnotes deleted)

1. While it is true that flooding was the only one of the five substantive issues raised, it was clearly the major issue and the one likely to occupy most of the hearing of the appeal. Further, while it was found that the four other grounds were so unsupportable as to enable them to be struck out, that does not necessarily mean they were frivolous or vexatious for the purposes of s 457 of the SPA.

1. I accept that Mr Copley initiated his appeal for bona fide reasons.  In particular, out of a desire to act in the public interest, especially in respect of the alleged risks associated with the flooding of the land.  Also, while unsupportable, in the sense of having no reasonable prospects of succeeding at trial, the parkland and wildlife habitat grounds could not be reasonably described as not being worthy of serious note or of little or no importance (frivolous), nor as being merely productive of serious and unjustifiable trouble or harassment (vexatious).

1. Another important consideration is that this court should exercise a degree of caution in making cost orders against citizens of the State. That is not to say that costs will not be ordered when appropriate, but due regard has to be given to the public policy considerations underlying provisions such as s 457 of the SPA. These include the public interest character of this court and that parliament intended that citizens with genuine grounds should not be discouraged from litigation because of fear of crippling costs orders being made against them.[7]

   [7]Ibid, at para [34].

1. On balance, I do not consider it appropriate to order costs against Mr Copley in respect of the parkland and wildlife habitat grounds.

1. However, the Crown land and road (the survey issues) and the traffic issues are different.  On or about 16 February 2012 the applicants/co‑respondents’ solicitors forwarded to Mr Copley a copy of the affidavits of a Mr Toohey[8] and Mr Viney.[9]  Messrs Toohey and Viney were, respectively, the surveyor and traffic engineer retained by the appellants/co‑respondents.  A further affidavit of Mr Toohey was served on Mr Copley on 2 March 2012.

   [8]Court Document 12.

   [9]Court Document 13.

1. After receiving the affidavits of those two gentlemen, it should have been clear to Mr Copley that he had no reasonable prospect of succeeding on the survey and traffic issues.  He should have known by 16 February 2012 that he had no chance of success in respect of the traffic grounds and, by no later than 2 March 2012, the same result applied in respect of the survey grounds.    

1. Indeed, at no time did Mr Copley seriously challenge or otherwise put in issue the evidence of Messrs Toohey and Viney, and as I observed in my reasons dealing with the strike out application,[10] Mr Copley was not able to point to anything that indicated that Crown land had in fact been included in the development application but still maintained that the issue was “open to argument”.

   [10]Copley v Logan City Council & Anor [2012] QPEC 39, at paras [18]-[21].

1. In circumstances where he was armed with sufficient data to appraise himself of the real state of affairs but nonetheless persisted with those matters, Mr Copley did, in my view, act in a frivolous if not vexatious way.  Accordingly, the discretion to award costs is enlivened.  In this context it is also of some relevance that Mr Copley has had some, albeit limited, experience as a self‑represented litigant and was receiving some legal advice about this appeal from time to time.[11]  That the strike out application was not entirely successful is no bar to the recovery of costs in appropriate circumstances.[12]  The applicants/co-respondents are entitled to favourable costs orders in respect of the survey and traffic grounds. 

[11]At T1‑33, LL 1-52.

[12]Mudie at para [15].

Indemnity costs

1. The next matter to be determined is whether, if a cost order is to be made against Mr Copley, should it be made on an indemnity or standard basis.

1. In Colgate-Palmolive Co & Anor v Cussons Pty Ltd,[13] Sheppard J considered that circumstances warranting the exercise of the discretion to award costs on an indemnity basis included the facts that the proceedings were commenced for some ulterior motive and/or were commenced in wilful disregard of known facts or clearly established law.  In the course of his judgment, Sheppard J noted some of the circumstances which might justify the making of cost orders on an indemnity basis:[14]

“Notwithstanding the fact that that is so, it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v Weekes(1989) 92 ALR 131 at 152 evidence of particular misconduct that causes loss of time to the court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp);the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson(1987) 10 NSWLR 525; Maitland Hospital v Fisher (No 2)(1992) 27 NSWLR 721 at 724(Court of Appeal); Crisp v Kent (SC(NSW)(CA), 27 Sept 1993, unreported) and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records). Other categories of cases are to be found in the reports. Yet others to arise in the future will have different features about them which may justify an order for costs on the indemnity basis. The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis.”

[13](1993) 118 ALR 248.

[14]Ibid, at 247. 

1. In Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd & Ors,[15] Woodward J said:

“… I believe that it is appropriate to consider awarding ‘solicitor and client’ or ‘indemnity’ costs, whenever it appears that an action has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success.  In such cases the action must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law.  Such cases are, fortunately, rare.  But when they occur, the court will need to consider how it should exercise its unfettered discretion.”

[15](1988) 81 ALR 397, 401.

1. In Emanuel Management Pty Ltd (in Liq.) & Ors v Foster’s Brewing Group Ltd & Ors and Coopers & Lybrand & Ors,[16] a degree of irresponsibility in the conduct of a party in litigation, including extravagant and unsubstantiated allegations of dishonesty, corruption and gross impropriety, was considered justification for ordering costs on an indemnity basis.

   [16][2003] QSC 299 per Chesterman J (as he then was) at paras [31] and [56].

1. As I have already stated, I do not consider Mr Copley commenced his appeal for any improper reasons or ulterior motives.  But, he persisted with aspects of his appeal despite having information which showed them to be hopeless causes. 

1. However, it is significant that the abovementioned cases were concerned with typical commercial civil litigation.  As I have already said, in such litigation the general rule is that costs follow the event and such costs will ordinarily be assessed on the standard basis unless special circumstances exist.  For example, where a party is found to have conducted itself in a frivolous or vexatious manner.  However, in this jurisdiction the discretion to award costs is only enlivened, relevantly in this case, where it has been established that Mr Copley had acted in a frivolous or vexatious way.  In this context it is relevant that many of the circumstances justifying the exercise of the discretion described by Sheppard J in Colgate-Palmolive and by Woodward J in Fountain could properly be said to fall under the broad description of being frivolous and/or vexatious.[17]

   [17]Mudie at paras [35]-[37]; Emanuel at para [31].

1. In Mudie, costs were not ordered on an indemnity basis where it was found that the parties had acted in a reprehensible way and persisted in groundless opposition.[18]  Although, it is not immediately apparent whether costs were in fact sought on an indemnity basis in that case.

   [18]At para [31].

1. Without expressing a final view about the matter, it seems that this court has only been prepared to order costs on an indemnity basis where more serious misconduct is involved.  By way of examples, where there was a strong inference that a party was acting for an ulterior motive and/or for private gain and/or was guilty of non‑compliance of orders and desultory, evasive or troubling and discreditable behaviour,[19] or where a party had advanced a case based on the repetition of arguments previously ruled on and rejected in other jurisdictions.[20]  A cursory analysis of a number of decision of this court reveal numerous examples of where parties were found to have acted frivolously or vexatiously but costs were only awarded on the standard basis.

   [19]Gold Coast City Council v Metrostar Pty Ltd [2005] QPELR 641 per Wilson SC DCJ (as he then was); see also Kalglen Pty Ltd v Brisbane City Council & Ors; Stratcliff Pty Ltd v Brisbane City Council & Anor [2009] QPELR 643 at para [7].

   [20]Millmerran Shire Council v Smith & Anor [2008] QPEC 113.

1. The applicants/co-respondents submit they are entitled to costs on an indemnity basis for the following reasons:[21]

   [21]Their written submissions at para [17].

“(i) all of the struck out grounds were groundless and were such that a person, properly advised, ought to have known that those grounds had no chance of success;

(ii)although self-represented, the Appellant should be taken to be familiar with the Court proceedings and the responsibilities of litigants.  The Appellant has been involved in numerous proceedings in this Court, as well as the Supreme Court and District Court.

(iii)this is not a case where the Appellant has raised concerns about potential impacts of the proposed development on his own property, bur rather sought to agitate issues which do not directly affect him. It is submitted that in those circumstances, the Appellant has a greater obligation to satisfy himself that at least some basis existed for his claims, prior to subjecting the Co-Respondents to the considerable expense associated with prosecuting the appeal. 

(iv) it does not appear that the Appellant sought any advice or otherwise made sufficient enquiries to satisfy himself that a legitimate basis existed for his contentions;

(v)to the extent that the raising of the struck out grounds in the amended notice of appeal was in any way excusable (which is not accepted), the ground relating to the alleged invalidity of the decision notice ground and the ground relating to traffic were inescapably unsustainable once the Appellant had been served with the affidavits of Stephen John Toohey and the affidavit of Neil Viney, respectively.” 

1. For the reasons given, I have concluded that costs should only be awarded in respect of the survey and traffic grounds raised in Mr Copley’s appeal.  I have also concluded that because grounds were found to be manifestly unarguable (i.e. groundless) was, generally speaking, not a sufficient justification, without more, to justify cost orders in this jurisdiction.  In my opinion, that Mr Copley has had prior court experience is only a minor relevance.  The same can be said of the applicants/co-respondents third and fourth points. 

1. While I have concluded that the traffic and survey grounds of appeal pleaded by Mr Copley were manifestly unarguable and disclosed no reasonable causes of action, I am not convinced his behaviour involved misconduct so serious as to warrant an order for costs on an indemnity basis.  Mr Copley’s conduct concerning these two aspects of his appeal, while frivolous or vexatious, did not involve the same degree of misconduct as that typified by the examples referred to in paragraph 33 above.

1. Balancing the competing considerations involved in this case, I have concluded that the appropriate orders are that Mr Copley pay only part of the applicants/ co‑respondents’ costs on a standard basis.  Accordingly, I order as follows:

1.Gregory Charles Copley, the respondent/appellant, is to pay one-third of the applicants/co‑respondents’ costs of and incidental to the application heard by me on 3 April 2012.          

2.Such costs to be agreed or failing agreement to be assessed on a standard basis.