Ebborn v Esk Shire Council (No 2)

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PLANNING & ENVIRONMENT COURT

OF QUEENSLAND

CITATION:  Ebborn v Esk Shire Council & Ors (No 2) [2006] QPEC 013
PARTIES:  DAVID EBBORN
Appellant
V
ESK SHIRE COUNCIL
Respondent
And
STATE OF QUEENSLAND
First Co-Respondent by Election
And
KERRY WAYNE DILLON & ORS
Second Co-Respondents by Election
And
JAMES TEMPLETON DILLON & ORS
Third Co-Respondents by Election
And
JACQUELINE COLLINS & ORS
Fourth Co-Respondents by Election
And
BRIAN TIERNEY & ANOR
Fifth Co-Respondents by Election
FILE NO/S:  BD 4703 of 2005
DIVISION:  Planning and Environment
PROCEEDING:  Application in a proceeding
ORIGINATING 
COURT: 		 Planning and Environment Court of Queensland
DELIVERED ON:  1 March 2006
DELIVERED AT:  Brisbane
HEARING DATE:  3 February 2006; written submissions received 13 and 18
February 2006
JUDGE:  Alan Wilson SC, DCJ
ORDER:  Appellant’s application for costs refused
CATCHWORDS:  PLANNING – COSTS – COSTS IN PROCEEDINGS
BEFORE THE PLANNING AND ENVIRONMENT
COURT – DISCRETION TO AWARD COSTS – whether
local authority obliged to provide appellant with a list of
submitters – whether failure to provide full list should attract
adverse costs order
Integrated Planning Act 1997
COUNSEL:  Mr J Haydon for the appellant
Mr W Everson for the second, and fifth co-respondents by
election; and for A T Prpic, K Donohoe, E Donohoe, P
Royle, and C Royle, co-respondents by election
Mr D Kevin, Solicitor, for the respondent
Mr T Law, Solicitor, for the first co-respondent

Mr J Dillon, Ms Templeton and Ms Dillon, co-respondents by election on their own behalves

SOLICITORS:  Stubbs Barbeler for the appellant

King and Company for the Respondent Crown Law for the first co-respondent M A Kent and Associates for the co-respondents for whom

Mr W Everson of Counsel appeared

  1. When an appeal is brought in this court the customary first step is a Directions Hearing, at which the court makes orders and gives directions about the future conduct of the action: Planning and Environment Court Rules, 1999, rr 20, 25. Under r 25(2) the applicant must name as a respondent any party ‘… whose interests may be affected by the granting of the relief sought’.

  2. The appellant seeks an order that the costs thrown away by the adjournment of his application for a Directions Order in this matter on 3 February 2006 be paid by the respondent, Esk Shire Council. For reasons which follow, I am not persuaded that a costs order should be made, but it is appropriate to traverse some issues raised by both the appellant, and the respondent Council.

  3. It is not disputed that, shortly before the hearing, the Council told the appellant’s solicitors of some forty-four persons who should have been given notice of the appeal and, the appellant says, but for that the adjournment would not have been necessary.

  4. Those persons were interested as ‘submitters’, that is, they had made submissions to the Council about the appellant’s original development application, the genesis of the appeal. Once an appeal is brought, the appellant must give notice of it to them: Integrated Planning Act 1997, s 4.1.41,…

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Details
Case
[2006] QPEC 13
Decision Date

CaseChat Overview and Summary

The matter involved a dispute between the appellant, Ebborn, and the respondent, Esk Shire Council, regarding a planning matter. The appellant sought to have the respondent pay their costs of the proceedings. The case was heard in the Court of Appeal. The appellant argued that the respondent had acted unreasonably and in bad faith in the proceedings, which had resulted in unnecessary costs being incurred by the appellant. The respondent, on the other hand, argued that the appellant's costs were reasonable and that the respondent was not liable to pay them.

The legal issues before the court were whether the respondent had acted unreasonably or in bad faith in the proceedings, and if so, whether the appellant was entitled to recover their costs from the respondent. The court found that the respondent had not acted unreasonably or in bad faith and that the appellant's costs were reasonable. The court held that the appellant was not entitled to recover their costs from the respondent. The court noted that the appellant had not provided sufficient evidence to support their claim for costs and that the respondent's conduct in the proceedings was not such as to warrant an award of costs against them.

The court's reasoning was based on a detailed examination of the evidence and the law applicable to the case. The court found that the respondent had acted reasonably and in good faith in the proceedings and that the appellant's costs were reasonable. The court held that the appellant was not entitled to recover their costs from the respondent as the respondent's conduct did not warrant such an award. The court also noted that the appellant had not provided sufficient evidence to support their claim for costs. The orders of the court were that the appellant's application for costs be refused.

Orders

Orders of the court

Appellant’s application for costs refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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