Friend v Brisbane City Council
[2014] QPEC 39
•31 July 2014
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Friend v Brisbane City Council [2014] QPEC 39
PARTIES:
ROBERT FRIEND
(appellant)and
PHILIP AERIAL, JO AERIEAL, GREGORY MANNING, KAREN MANNING andTHE KANGAROO POINT RESIDENTS’ ASSOCIATIONv
BRISBANE CITY COUNCIL
(respondent)and
TRENTHAM HOLDINGS PTY LTD ACN 066 159 984 TRADING AS BT HOTELS AND PROPERTY GROUP (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION)
(co respondent by election)FILE NO/S:
BD293/13
DIVISION:
Planning & Environment Court
PROCEEDING:
Application for costs
ORIGINATING COURT:
Planning & Environment Court, Brisbane
DELIVERED ON:
31 July 2014
DELIVERED AT:
Brisbane
HEARING DATE:
27 May 2014, written submissions received until June 2014
JUDGE:
Robertson DCJ
ORDER:
Application Dismissed
CATCHWORDS:
UNSUCCESSFUL SUBMITTER APPEAL – where appeal unsuccessful primarily on the basis of the rejection of the town planning opinion evidence of the planner relied upon by appellants
COSTS – where successful developer applies for costs under s 457 of the SPA – where developer wholly successful in its appeal, primarily because of the Court’s construction of the Planning Scheme – where developer alleges submitter commenced and/or participated in the appeal for an improper purpose – where town planning expert has failed to disclose that his wife was an adverse submitter – where one of the appellants held property with the solicitor for all appellants and a commercial interest in the incorporated legal practice – whether the proceeding affects a matter of public interest – whether the appellants had acted unreasonably – where application made against (2) submitters who had filed a Notice of Discontinuance well before the hearing, which had the effect of staying the effect of the Notice
COUNSEL:
Mr G Gibson QC with Mr J Houston for respondent/appellant
Mr D O’Brien QC for applicant/co-respondents by election
SOLICITORS:
Robertson Kane for the respondent/appellant
Mullins Lawyers for the applicant/co-respondent by election
Consequent upon the dismissal of this appeal by me on 6 December 3013, Trentham have applied for costs against Robert Friend, and Mr and Mrs Manning. As my reasons indicate the appeal proceeded over five days from 30 September 2013 to 4 October 2013. Mr and Mrs Manning filed a notice of discontinuance on 5 September 2013. On 17 September 2013 the co-respondent by election (Trentham) filed an application in pending proceedings seeking costs against Mr and Mrs Manning and the application was adjourned pending the outcome of the hearing of the appeal. Under r 3 of the Planning and Environment Court Rules 2010 (“the P&E Court Rules”), a discontinuance or withdrawal does not take effect until the day the Court decides the application or a later day decided by the Court.
As a result of directions orders, Trentham has filed an affidavit by Holly Whitcroft, solicitor on 24 February 2014 upon which it relies in relation to its application for costs, in addition to the reasons for judgment and other evidence referred to in its outline of submissions prepared by Mr O’Brien QC and forwarded to me under cover of email dated 8 April 2014. Mr Friend and Mr and Mrs Manning (whom I will refer to collectively as “the appellants”) have not filed any evidence in support of their opposition to the costs orders. They have however filed an extensive 54 page reply to Trentham’s costs submissions under the hand of Mr Gibson QC and Mr J D Houston of counsel. Trentham have responded to the appellants’ reply on costs in relation to matters of law, and in relation to what it alleges are factual errors and I have taken those submissions into account.
The statutory regime
As the appeal was commenced on 25 January 2013, the parties are subject to the costs regime introduced by the Sustainable Planning and Other Legislation Amendment Act (No 2) 2012.
Section 457(2) of the Sustainable Planning Act 2009 (the SPA) sets out the matters that the Court may have regard to in making an order for costs. Pursuant to s 457(1) of the SPA, costs of proceeding or part of a proceeding including an application in a proceeding, are in the discretion of the Court. Section 457(2) provides for 13 non exclusive matters to which the Court may have regard in exercising the discretion, and s 457(3) provides that subsection (2) does not limit the matters to which the Court may have regard in making an order as to costs.
In its outline Trentham has confined its submission to s 457(2)(a)(c)(d)(e)(g)(i) and (l).
There is no presumption in SPA that costs follow the event. Nor is there a presumption that each party should bear its own costs. In MC Property Investments Pty Ltd v Sunshine Coast Regional Council [2013] QPEC 39 at [7] I wrote:
“With the new cost regime, parties (including local authorities) will have to give serious thought to the potential costs implications of becoming involved in proceedings in this court. The previous limited discretion to award costs, for example based on the ‘frivolous and vexatious’ ground: 4.1.23(2)(b) of the IPA and s 457(2)(b) of the SPA prior to 22 November 2012, has widened significantly. Gone is the starting point that each party to a proceeding must bear its own costs. The starting point now is that the court has a discretion to award costs ‘of a proceeding or part of a proceeding, including an application in a proceeding…’.”
In Cox & Ors v Brisbane City Council [2013] QPEC 78, his Honour Judge Rackemann observed:
“[2] The subject appeal was lodged this year, and so is subject to the new costs provisions of s 457 of the Sustainable Planning Act 2009 (SPA). By reason of s 457(1), costs of the proceedings are in the discretion of the Court. The discretion is an open one. It is not to be approached either on the basis that there is a presumption that costs follow the event (as is the general rule in other courts dealing with ordinary civil litigation) or on the basis that there is a qualified protection against an adverse costs order, as was previously the case in SPA.
[3] The discretion, while expressed in general terms, must be exercised judicially and having regard to relevant circumstances.”
Not surprisingly, by reference to the subsections of the s 457(2) upon which Trentham relies, there is a considerable overlap, but, for convenience I will deal with the arguments chronologically.
The relevant success of the parties: section 457(2)(a)
As my reasons for judgment indicate, Trentham successfully rebutted all of the many allegations of conflict asserted by the appellants, except in one minor aspect. However the disputed issues were predicated on essentially the different opinions of the expert town planners called by the parties. As my reasons indicate, I preferred the evidence of the planners relied upon by Trentham and Council to the opinion evidence of Mr Gaskell, the planner called by the appellants. Although it is accepted that Mr Friend is an expert who has given evidence in this Court, his area of expertise is as a natural resource and bushfire management expert, and not as a planner. Although a very substantial attack was made on the objectivity and credibility of Mr Gaskell; it was never suggested to him that Mr Friend had tried to influence him in any improper way.
Of more significance to this aspect of Trentham’s application are the drafting anomalies identified by me in the judgment in the critical planning instrument namely the Woolloongabba Centre Neighbourhood Plan (the Neighbourhood Plan); which could (and did) give rise to different interpretations. As usual, all planners, including Mr Gaskell, intruded into areas of law, but it is the drafting in that instrument itself that gave rise to the most significant differences of opinion between the planners. As the appellants’ submission identified, although I preferred the opinion evidence of the other planners where there was conflict with Mr Gaskell, and in particular the opinions of Mr Ovenden, I did not hold that Mr Gaskell’s opinions were not his honest opinions based on his interpretation of the Planning Scheme.
Height was an important issue, and Trentham did introduce the 1923 sewerage plans late which affected the calculation of the number of storeys by reference to natural ground level and the various relevant definitions in the Planning Scheme.
Although it is a factor that may be taken into account in making an order for costs, the success of Trentham must be seen in light of the serious drafting anomalies in the Neighbourhood Plan which, except in one respect, are replicated in Council’s draft Planning Scheme. In its submission in reply (and contrary to the usual constraints that replies be confined to correcting factual anomalies and law), Trentham proceeds on the basis that, in dealing with this subsection, the Court’s discretion is constrained, as it were, to consider only its success on the appeal. The point is that it was my preference for its construction of the Neighbourhood Plan that primarily undermined the failure of the appeal, and Trentham’s success. It was these anomalies that underpinned the opinion of Mr Gaskell which, in the absence of bad faith, the appellants were entitled to rely upon in continuing with the appeal.
Improper purpose: section 457(2)(c)
Trentham alleges against Friend only that he commenced the proceedings for an improper purpose particularised as being based on a letter he sent to Simon McGuire, an adverse submitter who did not seek to join the appeal, in which Mr Friend was seeking to raise funds to prosecute the appeal. The letter was the subject of an earlier decision of this Court by his Honour Judge Rackemann in Friend v Brisbane City Council [2013] QPELR 547, where his Honour refused to grant injunctive relief against Mr Friend, on Trentham’s application in pending proceedings, alleging that Mr Friend was in breach of the Collections Act 1966.
The full text of the letter is reproduced at page 554 (paragraph [25]) of the Court’s judgment.
The focus of Trentham’s submission now is on the reference in the letter to the contention that Council’s decision to approve the development will “set a precedent for the rest of the Gabba Hill and for other suburbs around Woolloongabba…”. The submission seems to be that Mr Friend should have appreciated from Judge Rackemann’s reasoning that the commencement of an appeal for the purpose of avoiding the establishment of a precedent lacks merit in a planning sense, and acted with improper purpose in that he “pushed on with the appeal regardless,” and continued with the appeal.
In support of this contention, Trentham cites paragraph [27](e) from page 555 of his Honour’s decision. In that paragraph his Honour was referring to inaccuracies in Mr Friend’s letter but: … “(e) while the court has emphasised on many occasions, that each application is considered on its own merits, the fear that the approval of one development will ‘set a precedent’ is often expressed by individuals in the community”. It is difficult to see that even if that statement made it clear to Mr Friend that the purpose of avoiding the establishment of a precedent lacks merit in a planning sense, it could be regarded as improper for him to proceed with the appeal after that point.
Trentham observes that Mr Friend has never filed an affidavit in the proceedings, so he has never explained his purpose in commencing the appeal. His purpose in commencing the appeal is perhaps obvious. However all this means is that the Court makes its decision on the evidence before it, which did not include any sworn evidence from Mr Friend.
When the letter is read as a whole, I agree with Mr Gibson QC and Mr Houston, that it can also be inferred from the letter that other purposes were to raise funds and to “seek changes to the development approval”. Trentham’s allegations that the letter was misleading (as I have noted) are dealt with fully in his Honour’s reasons. The “precedent” argument was never raised as an issue, nor was it argued on the appeal.
The other aspect relating to the allegation of participating for an improper purpose, relates to unchallenged evidence from the documents exhibited to Ms Whitcroft’s affidavit. The appellants’ solicitors have been Messrs Roberts and Kane, and Judith Margaret Simpson has been the partner from the firm representing the appellants at all material times. The ASIC records annexed to Ms Simpson’s affidavit (pp 119‑121), indicates that Roberts and Kane Solicitors Pty Ltd was registered on 18 May 2013 and that Ms Simpson and Mr Friend are the only directors, and that she holds 50 A-class shares and he holds 50 B-class shares representing the total current issued capital of the company. Trentham’s submission now, is that from when Mr Friend became registered as a director and shareholder of the incorporated legal practice acting for all appellants, his purpose in continuing the appeal was improper in that he stood to profit from the litigation “from the amounts paid to the appellants’ solicitors by the other appellants and potentially third parties collected from Mr Friend’s appeal for support. Further Friend would have profited from any costs order in favour of the appellants had they been successful in the appeal”.
The ASIC records also note that Ms Simpson and Mr Friend have the same residential address, 28 Merton Road, Woolloongabba, and that the property has been owned by them jointly since 1997.
Both parties have assumed that Mr Friend’s involvement in the incorporated legal practice (relevantly to this application) was from 2 July 2013, which is the date on which a notice of change of solicitors was filed to recognise the change of name.
By that time the Kangaroo Point Residents’ Association had filed a notice of discontinuance (3 May 2013) as had Mr and Mrs Aerial (27 May 2013), so only Mr Friend and the Mannings remained as active appellants.
There is no evidence as to what fee arrangements existed between Ms Simpson and all the appellants. It would have been incumbent upon her to disclose to at least the Mannings and probably to others her commercial arrangements (if any) with Mr Friend, but there is no evidence about that, and it is irrelevant to the present issue.
In the absence of any evidence, I am not persuaded that Mr Friend continued to participate in the proceedings after either 18 May 2013 or 2 July 2013 for an improper purpose as a result of his involvement in the incorporated legal practice.
No reasonable prospects of success: section 457(2)(d)
Trentham’s argument on this point largely focuses on my rejection of Mr Gaskell’s opinion evidence relating to the interpretation of the Planning Scheme, the PDA issue, the T.L.P.I. issue, and the Draft Planning Scheme. The submission describes Mr Gaskell’s views as “perverse”. It submits “no reasonable party ought to have proceeded with the appeal upon the opinions of Gaskell”.
It is true that I rejected Mr Gaskell’s opinion evidence, essentially on all planning issues, although I did not accept Mr Ovenden and Mr Kay’s (lately acquired) opinion that the Neighbourhood Plan had been overtaken by events. I did not find Mr Gaskell to be perverse. After referring to Trentham’s extensive submissions on this topic on the appeal, I wrote this:
“[56] Firstly, I agree with Mr Gaskell that it would have been prudent to disclose to the other parties the fact that his wife was a submitter. He should also have disclosed that he played some part in advising her as to the contents of the submission. It would have also been prudent for the appellant’s solicitors to notify the other parties of their knowledge of these matters.
[57] Mr Gaskell certainly presented as a witness with strong opinions to the effect that the proposal should not be approved. It is a very big step to then say, therefore, because of the personal matters, he has not been impartial. The fact that two other planners disagree with most of his evidence is not supportive of Trentham’s argument. It is very common for town planners to disagree strongly about what particular Planning Scheme provisions mean, or which apply. It does not follow that they are biased. It is often the case (as is the case here) that the critical assessment instrument, the Neighbourhood Plan, is pregnant with inconsistencies and anomalies.
[58] In his evidence Mr Gaskell did not present in any way as a zealot; nor did he exhibit frustration and irritation such as that exhibited by Mr Kay when being gently cross-examined by Mr Houston.
[59] I am not prepared to find that his evidence lacks objectivity. As will be seen from my reasons following, I disagree with many of his opinions, but surely that occurs in most appeals of this kind.”
This is clearly not at all analogous to the position of the submitter appellant in Cooloola Ratepayers and Residents Association Inc v Cooloola Shire Council & Anor [2004] QPEC 018.
Had I known about the apparent commercial relationship that existed between Mr Friend and Ms Simpson, I would have probably expressed myself in stronger terms in the third sentence of para [56].
The difficulty for Trentham is that it cannot show why (in an improper or unreasonable sense) Mr Friend was not entitled to rely on the opinions expressed by Mr Gaskell, especially in light of the significant drafting anomalies identified in the Neighbourhood Plan. As I have said above, it is not suggested that Mr Gaskell held his opinions dishonestly. I have not found his views to be perverse, nor did I find him to lack objectivity or to be a zealot. Mr Friend was entitled to rely on his opinion; and even though I largely disagreed with Mr Gaskell, that does not render Mr Friend’s prosecution of the appeal as unreasonable or improper.
As noted in my reasons, the real focus of the dispute was on conflict related to the height, bulk and scale of the development. Mr Friend also relied on a visual amenity expert Mr Van Pelt, whose opinions were influenced significantly by Mr Gaskell’s interpretation of the relevant Planning Scheme provisions. Mr Friend also relied on a photo montage witness whose evidence was of considerable assistance in appreciating and assessing the various issues (surrounding height, bulk, and scale) litigated at the hearing.
On this issue of reasonable prospects, Trentham also argues that Mr Friend had no reasonable prospects of success in relation to traffic issues and the relevance of the TLPI.
On 30 July 2013, the appellants then remaining (Friend and the Mannings), applied to the Court to further amend their Notice of Appeal to include issues relating to weight to be given to the Draft City Plan and the TLPI. Judge Rackemann dealt with this application together with an application for directions by Trentham on 2 August 2013. His Honour gave ex tempore reasons, and relevant extracts from these reasons as set out at paragraph [16] of the submission of Mr Gibson QC and Mr Houston. Trentham was given leave to add the “overtaken by events” issue which I ultimately rejected; and his Honour gave leave to the appellants to add the Draft City Plan and the TLPI weight issue, essentially on the basis that Trentham’s Counsel conceded that some parts of the Draft City Plan were relevant to the new issue it raised, and the TLPI had not been promulgated at the time issues had been earlier notified. His Honour described that instrument as “a document of some obvious relevance”.
For the reasons identified in my judgment I rejected the “overtaken by events” argument, and gave little weight to the TLPI essentially because of its terminology.
It is difficult to see therefore that the appellants (at the time they sought to add these issues), had no reasonable prospects of success in relation to these discrete issues.
As to the traffic issue, as my reasons indicate, this focussed on a reference in Map B in the Neighbourhood Plan to a proposed vehicular linkage, which neither Mr Camilleri (for Trentham) nor Mr Beard (for Council) could see any benefit from a traffic engineering perspective. The opening statement made by Mr Gore QC on behalf of Trentham acknowledged that any remaining traffic issues could be left to the conditions phase. There was very brief cross-examination by Mr Houston of both experts directed at the east west linkage issue, and in relation to the terms of a condition dealing with the construction management plan, and Mr Beard suggested some improvements which Trentham accepted in its final submission. It could not be said therefore that on this discrete issue, the respondents had no real prospects of success.
The same can be said in relation to the heritage issue. Mr Ivan McDonald gave expert evidence on behalf of Trentham on this issue. His statement was not made available until just prior to the hearing. I can infer that he was involved to meet Mr Gaskell’s opinion to the effect that the proposal did not comply with the Residential Design-High Density Code. Mr McDonald expressed the view that the demolition of the three pre 1900 houses on the site did not satisfy performance criteria PCP1 of the Residential Design-High Density Code in City Plan.
I dealt with the issue at paragraphs [42]-[44] of the judgment. I held that PCP1 in its mandatory terms was inconsistent with the Purpose provisions of the Code itself. Again, there was an issue here, albeit another in which I did not agree with Mr Gaskell, but again, it could not be said that the appellants had no reasonable prospects in pursuing an issue which took up very little time in any event. In its submission in reply, as it seems to do in relation to other subsections of s 457(2), Trentham appears to proceed on the basis that these issues are to be considered discretely, as it were, in isolation from other relevant issues arising in the case. That is an unnecessarily restrictive approach to the construction of s 457(1) and (2), if that was the intention.
Trentham referred to s 457(2)(e) but says it is irrelevant. For that reason Mr Gibson QC and Mr Houston do not address the subsection in their submissions.
The public interest issue: section 457(2)(g)
Trentham’s argument here is that the appellants had not identified any “matter of public interest” in maintaining the appeal. I do not construe the subsection as excluding personal rights and interests, such as those of the Mannings whose property was directly affected by overshadowing particularly from tower 3. It is not necessary for me however to reach any concluded view about this. The argument really turns on the arguments earlier discussed, such as the anomalies and inconsistencies in the Neighbourhood Plan, which led Mr Gaskell to (incorrectly as I determined) an interpretation different to the other planners. The reasoning of Rackemann DCJ in relation to the cross applications referred to earlier, which lead to an Amended Notice of Appeal, noted that inclusion of the TLPI and the Draft Planning Scheme were issues “appropriate – both in terms of the justice between the parties, and in terms of the public interest – in ensuring that the decision on this matter by this Court takes into account all relevant matters…” His Honour also referred to the need to notify further issues because Mr Ovenden had raised in the joint expert meeting the notion that the neighbourhood plan had been overtaken by events, which Trentham accepted had not been notified earlier as an issue.
This alone effectively undermines Trentham’s argument now that there was an “absence of any public interest element to the litigation”.
Whether the respondents have acted unreasonably in the conduct of the proceeding: Section 457(2)(i)
Trentham’s submission repeats and relies on a number of the issues discussed above. The “Gaskell disclosure” issue is a non issue, given the conclusions in the reasons. There is no evidence to suggest that any of the appellants or Ms Simpson, could reasonably have believed that Mr Gaskell was not acting honestly in providing the opinions he did. In this context, reference is made to the withdrawal from the proceedings of the Kangaroo Point Residents’ Association on 3 May 2013. In the absence of any identified evidence connecting this group to Mr Friend and/or Mr and Mrs Manning in some inappropriate way, it is difficult to see how the decision of one party to discontinue, should render another party’s decision to proceed unreasonable.
The issues to do with the “late” amendment of the notice of appeal, and the allegedly unmeritorious pursuit of traffic and heritage issues have been discussed above.
Trentham also alleges that the appellants have acted unreasonably in refusing offers to settle. The affidavit of Ms Whitcroft exhibits correspondence addressing possible settlement including:
(a) an offer from the solicitors for Trentham, by letter dated 28 March 2013, to amend its development application by rearrangement of apartments amongst the three towers (without reducing the number of units) and alteration to the curb at the intersection of Reid Street and Hawthorn Street;
(b) a response by the solicitors for the appellants by letter dated 9 April 2013 seeking further information and discussion in respect of particular aspects of the development (and advising Mr Friend was of the view that additional modifications were required for the proposed development to comply with City Plan, but was willing to continue negotiations in that regard);
(c) a letter and reply from the solicitors for Trentham, dated 10 April 2013, rejecting the proposals contained in the solicitors for the appellants letter dated 9 April 2013, but extending the time for acceptance of Trentham’s earlier offer until 2.00pm on 11 April 2013;
(d) subject to a further extension of the time for acceptance of that offer, to 2.00pm on 12 April 2013, a letter from the solicitors for the appellants, dated 12 April 2013 advising that Mr Friend and the Kangaroo Point Residents’ Association were not prepared to accept Trentham’s offer, but Mr and Mrs Aerial and Mr and Mrs Manning were prepared to accept the offer, subject to certain provisos which primarily related to conditions;
(e) a letter from the solicitors for Trentham dated 15 April 2013, rejecting the purported acceptance of their client’s offer and advising that Trentham would be proceeding “based on the development application as made and will not be proceeding to change that application”.
Also exhibited to Ms Whitcroft’s affidavit, are copies of a letter from Mr Hammond the principal of Trentham, dated 6 May 2013, which letter was marked without prejudice save as to costs, and which resulted in him meeting with Mr and Mrs Aerial and attempting to meet with Mr and Mrs Manning, which letter contained an offer involving payment of money to those parties to be used for whatever purpose they chose to alleviate their concerns, in return for withdrawing from the appeal. It was specifically stated not to apply to Mr Friend.
In that letter Mr Hammond refers to the previous offer made under cover of his solicitors dated 28 March 2013 and then states:
“If the appeal cannot be resolved on that basis and if the appeal results in the approval being granted as per the application (that is so that the deletions above are not made) then I will pay to you upon finalisation of the appeal and in respect of each property owned by you neighbouring the development the sum of $10,000 ($20,000 in total) to assist you to undertake such steps as you think are necessary to deal with your concerns with the proposed development. You can use this money for whatever purpose you like to alleviate your concerns including relocating solar panels, installing more solar panels or undertaking landscaping on your properties.”
By letter dated 10 May 2013 Ms Simpson accepted the offer from Mr Hammond on behalf of Mr and Mrs Aerial, and in a separate letter rejected the offer on behalf of Mr and Mrs Manning. As I have noted Mr and Mrs Aerial withdrew from the appeal on 27 May 2013.
The first offer on 28 March 2013 in its terms was to all the then appellants. The response from Ms Simpson on 9 April 2013 indicate a willingness to consider the offer, but required further information. Specifically, it was requested on behalf of Mr and Mrs Aerial the owners of 22 Reid Street an opportunity “to negotiate with your client for financial compensation for the loss of solar entitlements, to assist them to either relocate their solar heating panels or change their existing hot water system to a heat exchange system.”
By its letter dated 10 April, Trentham’s solicitors indicated they were not prepared to proceed on the basis of Ms Simpson’s letter, but as I have noted reopened the 28 March offer until 11 April. It was then extended to 12 April. In her letter dated 12 April 2013 Ms Simpson rejected Trentham’s offer contained in the solicitors letter dated 28 March 2013, on behalf of Mr Friend and the Kangaroo Point Residents’ Association, however accepted the offer on behalf of Mr and Mrs Aerial and Mr and Mrs Manning. Consistent with the solicitor’s letter dated 28 March 2013, Trentham’s solicitors rejected the partial purported acceptance of Trentham’s offer but noted this:
“Our client appreciates the efforts of Mr and Mrs Aerial and Mr and Mrs Manning to resolve this matter. However our client is not in a position to change its development application unless all appellants are willing to resolve the appeal based on the proposed change.”
The position of Mr and Mrs Manning at that stage as reflected in Mr Simpson’s letter is hardly indicative of them acting unreasonably. Thereafter followed the letter from Mr Hammond to Mr and Mrs Aerial and Mr and Mrs Manning which was ultimately accepted by Mr and Mrs Aerial who withdrew but rejected by Mr and Mrs Manning. By then the Kangaroo Point Residents’ Association had withdrawn from the proceedings.
At this point, it can be inferred that the interests of the remaining appellants diverged somewhat, which must have presented Ms Simpson with conflicting interests to protect. The Aerials’ and the Mannings’ homes were directly affected as a result of amenity impacts such as overshadowing, particularly from tower 3, whereas Mr Friend’s house at 25 Merton Road on the other side of the freeway was not. As indicated in the earlier letter, although he was prepared to negotiate, he was still maintaining that the proposal conflicted with City Plan. The potential conflict of the interests of one client over another is however irrelevant to the issue here.
Given the advice that the appellants then had from Mr Gaskell, it cannot be said that they acted unreasonably in not accepting the offers, particularly given the precondition in the offers in the solicitors’ letter that all appellants had to agree.
Non-compliance with procedural requirements of the Court: section 457(2)(l)
Trentham’s submission on this point again focuses on the evidence of Mr Gaskell, which I have discussed above. There is no evidence that Mr Friend (or indeed any other appellant) improperly influenced or attempted to influence Mr Gaskell. As noted above I rejected Trentham’s trial submission relating to Mr Gaskell’s evidence, and that really disposes of this point. This issue is also alleged to be an example of the appellants acting unreasonably. As I noted, it would have been a forensically simple task to work out that Mr Gaskell’s wife was an adverse submitter, as Trentham’s solicitors did. It is not clear when Trentham made the connection, but it certainly did not raise this as a serious issue prior to any of the joint expert meetings, in accordance with the evidence placed before me.
As I have noted, Ms Simpson should have made disclosure to Trentham of what Mr Gaskell had told her. In accordance with my findings, there would have been no reason for the appellants to then appoint another expert in town planning. I was not aware until these proceedings of the apparent commercial relationship between Mr Friend and Ms Simpson referred to earlier. As I commented in the judgment, it would have been prudent for Ms Simpson to advise the other parties of Mr Gaskell’s relationship with an adverse submitter. There is no evidence that she knew that he had assisted her in preparing the submission which is obviously in town planning parlance. Given the similarity between Mr Gaskell’s submission and Mr Friend’s, and the now revealed connection between him and Ms Simpson, it would have been even more prudent for her to disclose what she was told by Gaskell to Trentham’s solicitors. That is a long way from establishing impropriety on the part of Friend or the Mannings or unreasonableness, and it could not “be inferred that the failure to disclose was a calculated step by [Friend and the Mannings] designed to not undermine their case by exposing the personal interest of their principal witness in the outcome of the appeal”. Trentham’s submission on costs contains quite a number of these rhetorical flourishes which are frankly unhelpful.
Mr and Mrs Manning’s notice of discontinuance
As noted above, the Mannings filed a notice of discontinuance on 5 September 2013 which was less than two weeks after completion of the second joint report of the town planning experts. For the technical reasons discussed, and as a consequence of Trentham filing its application in pending proceedings seeking costs against the Mannings on 17 September 2013, the discontinuance does not take effect until the day the Court decides the application.
For the reasons set out above, in any event, there is no basis for making an adverse costs order against the Mannings. However in circumstances in which Trentham makes it clear that it is only seeking costs against Mr and Mrs Manning up to and including the date of the filing of their notice of discontinuance, the submission made at para 67 of its written outline, to the effect that the filing of a notice of discontinuance on 5 September 2013 “was no more than an inept and thinly veiled attempt at avoiding an order for costs in the appeal that they instituted, continued and supported, in a practical sense, until the end”, I agree with Mr Gibson QC and Mr Houston that that is a gratuitous and unnecessary submission and another example of unnecessary and unhelpful rhetoric.
Conclusion
For the reasons expressed above, I am satisfied that there is no basis in all the circumstances to exercise my discretion to award costs of the whole or any part of the proceedings to Trentham. The application by Trentham for costs against Mr and Mrs Manning filed on 17 September 2013 and the application by Trentham seeking orders for costs against Mr Friend filed on 20 December 2013 are dismissed.
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