De Bray v Gold Coast City Council

[2005] QPEC 59

[2005] QPEC 059

PLANNING AND ENVIRONMENT COURT

JUDGE RACKEMANN

Appeal No 571 of 2004

MAURICE JOSEPH De BRAY LORRAINE MARGARET De BRAY MACEFIELD PTY LTD ACN 010 360 664	Appellants
and
GOLD COAST CITY COUNCIL	Respondent

BRISBANE

..DATE 16/06/2005

ORDER

HIS HONOUR:  Yes.  In this matter, there is an application by the respondent, Gold Coast City Council, for costs of the appeal.  The appeal was against the deemed refusal of Council with respect to an application made under a Local Law to remove what was said to be dead trees from the property.  The appeal was against the first application that had been made for the removal of those trees.

That application had been made in circumstances where the Council was prosecuting the applicant/appellant with respect to the causes of the trees getting into a state of ill health.  The application, as initially made, was made in a fairly unsophisticated way.  The Council, it appears, did not have sufficient details to be confident enough to give an approval and it was that "decision" against which the appeal was made.  The appeal was brought out of time and so would have required an application for extension had it continued.

It appears, however, that the applicant appreciated that there should be further material provided to the Council in the event that its support was to be obtained.  There would have been two ways to progress that.  It could have been the subject of further material and particularisation provided in the context of the appeal, ultimately, with the hope of obtaining a consent order or, in the absence of a consent, an order of the Court approving the removal of the trees.  Alternatively, a fresh application could have been made with the further particular information.

In this case, what the appellant decided to do was to lodge a fresh application, but to keep the first appeal on foot whilst that second application was proceeded with.  The appeal against the first decision was not progressed in any substantive way.  There were a number of consent adjournments which were made in the context that there was continuing investigation about the merits of the matter in the context of the new application.

The Council does not pretend that the application in terms of its merits was doomed from the outset.  Indeed, there are some indications that the Council may have been positively disposed to the application subject to the receipt of appropriate material.

Ultimately, however, the applicant/appellant has determined to withdraw the second application and to discontinue the present appeal.  The decision to do that is explained in the affidavit material by reason of him wanting to concentrate his efforts, in terms of his resources, on the outstanding prosecution.  There are also some other matters that are referred to.

The Council submits, in the circumstances, that costs could be awarded under a number of different sub-paragraphs in Section 4.1.23 subsection 2.  The first is that the Court considers the proceedings or part of the proceedings were frivolous or vexatious.  The second relates to not being given a reasonable notice of intention to apply for an adjournment.  The next one is that a party has incurred costs because the party is required to apply for an adjournment because of the conduct of another or (e) a party has incurred costs because another party has defaulted on the Court's procedural requirements.

I have difficulty in concluding that the appeal was one which was frivolous or vexatious on the merits, given the concession of the Council in respect of the potential favourable consideration of an application supported by appropriate material.  Similarly, such material could have been provided in the context of an appeal.

In relation to the conduct of the appeal.  I appreciate that the appeal was filed out of time and that may raise a discretion in relation to costs but, even if it does, it is not one which I would be prepared to exercise.  Similarly, with respect to the matters of the adjournments and the conduct since. 

It is not entirely unusual, in circumstances such as this, for an applicant to, in effect, keep his options open by allowing an existing appeal to remain on foot whilst pursuing another development application.  This is a way of keeping his options open and it is one in respect of which the Council was aware that was the course being taken.  The various adjournments of the proceedings were by consent and it seems to me that, in the circumstances of the case, it was not an unreasonable decision for the applicant to take in relation to the conduct of the proceedings.  Even if the conduct raised jurisdiction under one of the various sub-paragraphs, I would not be prepared to exercise the discretion in the circumstances.

Accordingly, I dismiss the application.

MR McMILLAN:  That's all I have, sir.  May I withdraw?
HIS HONOUR:  Thank you.
MR McMILLAN:  Thank you, your Honour.
MISS VAN DEN BRAND:  May I be excused, your Honour?
HIS HONOUR:  Yes.

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