Darwen & Anor v Pacific Reef Fisheries (Australia) Pty Ltd

[2009] QPEC 18

[2009] QPEC 18

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E No 3181 of 2008

KEITH ALEXANDER DARWEN

and

GARY WILLIAM STEWART

Applicant

Applicant

and

PACIFIC REEF FISHERIES (AUSTRALIA) PTY LTD (ACN 084456931)

and

BURDEKIN SHIRE COUNCIL

and

CHIEF EXECUTIVE, ENVIRONMENTAL PROTECTION AGENCY

First Respondent

Second Respondent

Third Respondent

BRISBANE

..DATE 30/03/2009

ORDER
CATCHWORDS: Integrated Planning Act 1997 s4.1.23(2)(e) - costs awarded against respondent defaulting in compliance with Courts directions in a proceeding under the Environmental Protection Act

HIS HONOUR: This is, in the end, an application by the applicants who seek relief under the Environmental Protection Act in respect of what might be summarised as salination of cane lands and the water that is used for cane farming in consequence of the first respondent's aquaculture activities on adjacent land.

The original directions of the court in the matter contemplated a hearing for as long as 10 days in the June 2009 sittings.  The timetable incorporated in the relevant order contemplated responses by the respondents who also include the Council and the Environmental Protection Authority by the 13th of February, 2009.  That date was not met by any of the respondents.  The deadline became (in consequence of a second order of Judge Wilson) the 27th of February, 2009.

The first respondent, whose document is plainly the one the applicants would most want to have, is still in default but with apparent confidence Mr Andreatidis representing it this morning has said it will be made available by the end of today.  The delay which has happened means the principal application can't be heard in the June sittings.  The applicants appear to accept that reluctantly.  Whether the requirements of the prawn farming operation are such that it is important to have a decision by July was contentious.  The first respondent filed an application on the 16th of March, 2009 the costs of which the applicants now seek, and on an indemnity basis so that they will not be out of pocket.

A second day for hearing of the application became necessary when it came before Judge Searles: on its return date of the 18th of March, 2009 (which was one of the court's ordinary mentions days) presumably because of other listed work.  Judge Searles had only half a day for mentions as he indicated to the parties.  He was told, as I understand by Mr Sheridan (counsel for the applicants), that the matter might take a couple of hours and declared himself unavailable to deal with it, adjourning it to today.  It has not taken a couple of hours, although it has taken one hour - perhaps because of my conduct of it which is included enquiries regarding details of the issues and the like.

It's been observed in the course of the hearing that "slippage", as the euphemism is, commonly occurs in proceedings in this court. Whether or not conformably with Section 4.1.23 of the Integrated Planning Act 1997, subsection (1) in particular, or because of the culture which has developed in the court, it is not common for parties to seek costs. I can well understand the applicants' concern in this regard on the assumption, as the file documents indicate that they are cane farmers concerned about a threat to their conduct of their business because of what their expert advice tells them has been happening in the first respondent's business. They have done what they can to encourage public authorities to make and pursue complaints but without success. The Environmental Protection Agency, which doubtless has its own priorities, has indicated that they ought to do the best they can for themselves in civil proceedings. All of this comes at a cost, which will be especially galling in respect of steps like the one presently underway, which do not advance the proceedings, but delay it.

The draft order which Mr Andreatidis has handed up vacates the standing directions and establishes a timetable which will lead to a hearing in July rather than June.  As it happens, this year there is some considerable difference because the July sittings and the June sittings are separated by a couple of weeks of court vacation when nothing is likely to be listed.  While slippage is common and costs are usually not sought (or if they are sought are not automatically awarded against "culprits") the applicants for what is, obviously, good reason are not inclined to adopt the customary, gentlemanly approach.

I do not agree with Mr Sheridan that Section 4.1.23(2)(a) applies, even accepting the application of the first respondent filed on the 16th of March this year as a "proceeding". I could not be satisfied the only purpose of it is to delay or obstruct. It is clear, however, that paragraph (e) applies. Under the original directions order, no appearance in the court before May this year was called for. The applicants have had to come to court both on the 18th of March and today and essentially because of the first respondent's default in producing its response to the voluminous allegations of the application which is the first one I have seen in the court running to 40 pages; there is a lot of repetition in it.

It must be said that default still continues although it may be remedied by the end of the day.  The hearing is being deferred by a month according to what is now proposed and Mr Sheridan says his clients realistically must accept that Mr Andreatidis points out that to an extent the other respondents, or one of them, might have defaulted as well, even disregarding additional time allowed by consent.  The role of the second and third respondents is essentially peripheral, I think.  Neither is likely to take an active role. 

The significant default is that of Mr Andreatidis' client. It may have been brought unwilling to Court, but it is bound by Court orders nonetheless, and by the implied undertaking on rule 5(3) of the UCPR. I think that it is a case for costs. In what are coming to be straitened economic times, the court is probably going to encounter more such applications. As a source of guidance in respect of ordering costs Mr Sheridan has referred me to ABC Developmental Learning Centres v Pine Rivers Shire Council [2007]QPELR 508; there costs were not awarded. I have had occasion to award costs, in the court but on the standard basis, last Monday in the matter of Janhnke v Cassowary Coast Regional Council, Cairns no. 63 of 2006 where the applicable paragraph of Section 4.1.23(2) was (c); notice of intention to apply for an adjournment of a hearing in Cairns for which Brisbane counsel had been engaged was not given until the Friday afternoon before; an adjournment had to be granted because the delinquent party had not turned up to deal with the proceeding, although he had engaged a solicitor for the limited purpose of applying for an adjournment.

Notwithstanding Mr Sheridan's heartfelt or earnest submissions, I am not persuaded that this is the case where penalty costs in the form of indemnity costs are appropriate.  I am also concerned about awarding the costs of two days in court when, to an extent, it was the court's responsibility that a second day's hearing was necessary, a judgment reached with some encouragement in a form of Mr Sheridan's estimate of the possible duration of the hearing.

In the end the court today will make an order in terms of the draft directions which were handed up by Mr Andreatidis, added to that as to paragraph 21 an order that the first respondent pay the applicants' costs of and incidental to its application filed on the 16th of March, 2009 but limited to half the costs of today's hearing on the standard basis. 

I might note that part of justification advanced by the first respondent for its rather leisurely response to its obligation to respond or reply to the application is that the second respondent has apparently taken steps which may lead to a sale of his farm.  It is suggested, in correspondence, that this might lead to his losing interest in the proceeding and that if he withdraws the first applicant may lose heart.  I can understand the commercial reasoning at work here but it does not affect the court's determination this morning.  What it might conceivably do at some time in the future is raise another interesting costs question under paragraph (b). 

Order has per initialled draft as I have amended it.