Friend v Brisbane City Council
[2013] QPEC 23
•6 June 2013
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION:
Friend & Ors v Brisbane City Council & Ors [2013] QPEC 23
PARTIES:
ROBERT FRIEND, PHILIP AERIAL, JO AERIAL, GREGORY MANNING AND KAREN MANNING (appellant)
v
BRISBANE CITY COUNCIL (respondent)
and
TRENTHAM HOLDINGS PTY LTD ACN 066159984 TRADING AS BT HOTELS AND PROPERTY GROUP (co-respondent)
FILE NO/S:
BD 293 of 2013
DIVISION:
Planning and Environment Court
PROCEEDING:
Application in pending proceeding
ORIGINATING COURT:
Brisbane
DELIVERED ON:
6 June 2013
DELIVERED AT:
Brisbane
HEARING DATE:
31 May 2013
JUDGE:
Rackemann DCJ
ORDER:
The application in pending proceeding is dismissed
CATCHWORDS:
Planning and Environment – submitter appeal – application in pending proceeding by co-respondent seeking various orders including of an injunctive kind – submitter appellant seeking donations to litigation fund – whether in breach of the Collections Act 1996 – whether letter requesting donation misleading – whether abuse of process
Collections Act 1966 Sustainable Planning Act 2009
Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd (2006) 2009 CLR 386
Trendtex Trading Corporation v Credit Suisse [1982] AC 679
Fostif Pty Ltd v Campbells Cash and Carry Pty Ltd [2005] NSWLR 83Magic Menu Systems Pty Ltd v AFA Facilitation Pty Ltd (1997) 72 FCR 261.
COUNSEL:
Rebetzke, G for the appellant
Job, B for the respondent
O’Brien, D for the co-respondent
SOLICITORS:
Roberts & Kane for the appellant
Brisbane City Legal Practice for the respondent
Mullins Lawyers for the co-respondent
By an application in pending proceeding the co-respondent by election (the developer) seeks the following orders against Mr Friend, who is one of the appellants:
1. That the appellant, Robert Friend, be restrained from publishing misleading statements in respect of the subject matter of the appeal;
2. That the appellant, Robert Friend, be restrained from making or continuing any appeal for support to the public for the purposes of obtaining money by way of a collection for costs associated with this appeal other than according to law;
3. That the appellant Robert Friend, be restrained from dealing with any monies collected from any such appeal for support other than and in accordance with an order of the court;
4. That the appellant, Robert Friend, refund in full all monies collected through the appeal for support to the persons providing those monies;
5. That the appellant, Robert Friend, provide an account of the monies collected from the appeal for support;
6. That the appellant, Robert Friend, pay the co-respondents by elections costs of an incidental to this application to be assessed; and
7. Such further or other orders that this honourable court considers necessary and appropriate in the circumstances.
The developer is the proponent of an intended development of land surrounding the Chalk Hotel at Woolloongabba. The development would involve the construction of three residential towers (some 500 plus units) and associated retail facilities. Public notification of the development application attracted submissions including many from those opposed to the project. The development was however, approved by the respondent on 20 November 2012. Subsequently, this appeal against the council’s decision has been brought by some of the submitters.
By their amended notice of appeal, the appellants articulated apparently relevant grounds of appeal which include:
1. alleged conflicts between the proposed development and various provisions of Brisbane’s City Plan 2000;
2. potential adverse traffic impacts of the proposed development; and
3. the need for different conditions if the proposal is to be approved.
The developer has responded by enumerating grounds which it will rely upon as sufficient to justify approval in the event that conflict with the planning scheme is found. On 21 February 2013 the court made directions for the progress of the matter. The hearing is currently set down for the July sittings.
The developer’s application in pending proceeding is fuelled by its discontent with Mr Friend’s attempt to obtain financial assistance for the prosecution of the appeal. In particular, it takes issue with a letter which Mr Friend sent to one of the submitters who did not elect to institute an appeal. The letter sought a donation, by way of a deposit into a bank account, to assist. It was submitted that this constituted an unlawful appeal for support, contrary to s 10 of the Collections Act1966 (Collections Act).
The Collections Act regulates collections from the public for a number of purposes, including community purposes. Section 10(1) provides that no person shall make, or cause to be made, or assist in making, any appeal for support for, amongst other things, a community purpose unless that purpose is sanctioned under the Act (there is no relevant sanction here). Contravention of the section constitutes an offence punishable by fine or imprisonment.
At first blush a letter addressed to a fellow submitter seeking a donation towards a fund to meet litigation expenses does not appear to sit comfortably with the concept of a collection from the public for a community purpose. It was submitted, on behalf of the appellant however, that the relevant definitions give the Act wide application.
Section 10 does not simply prohibit collections but any “appeal for support”. That expression is defined as follows:
appeal for support, used in relation to any purpose, means any invitation (expressed or implied, and whether made verbally, or by writing or conduct, or by any advertisement), to the public, which is designed to obtain money or articles for that purpose, including:
(a) any collection for that purpose;
(b) any advertisement of any art union or the selling or offering for sale of any ticket or chance in any art union promoted or conducted for that purpose;
(c) any notification to the public expressly or impliedly indicating that any proceeds of, or any moneys from, or any collections at, any dance, concert, social entertainment, bazaar, fair, fete, carnival, show, sport, game, or other diversion, activity, or function (whether of the classes previously enumerated or not) are intended or are to be appropriated for that purpose;
(d) the holding of any dance, concert, social entertainment, bazaar, fair, fete, carnival, show, sports, game, or other diversion, activity, or function (whether of the classes previously enumerated or not) any proceeds of which, or any moneys from which, or any collections at which are appropriated or intended for that purpose;
(e) any notification to the public expressly or impliedly indicating that any proceeds of, or any moneys from, the sale of any articles or the supplying of any service are intended or are to be appropriated for that purpose;
(f) the sale of any articles or the supplying of any service, any proceeds of, or any moneys from which are appropriated or intended for that purpose;
(g) any notification to the public, expressly or impliedly indicating that the whole or part of any fees for membership of any association are intended for or are to be appropriated for that purpose;
(h) anything prescribed to be an appeal for support.
The impugned letter was said to qualify as an “appeal for support” by reason of the introductory words.
It will be noted that one of the requirements of an “appeal for support” is that it be “to the public”. At first blush that does not appear to sit well with a letter to a specific person. Counsel for the developer pointed out however, that the expression “the public” is defined to include any member of the public. It was submitted, on behalf of Mr Friend, that the letter was not sent to someone in their capacity as a member of the public. Counsel for the developer submitted that the recipient is a member of the public, even if the letter was sent to him because he was a submitter.
To be an “appeal for support” the letter must also be in relation to a relevant purpose, in this case a community purpose. That expression is defined relevantly to include:
“(a)any purpose which promotes or assists in promoting, or is devoted or directed to the promotion of, the general welfare of the public, at large or in a particular locality, including, but without limiting the generality of the foregoing, the construction, carrying out, provision, maintenance, or repair of buildings, works, parks, recreation grounds, or other places (or of amenities therein) for the purpose of use or enjoyment by members of the public.”
It was submitted on behalf of Mr Friend that the letter, if it be an invitation to the public to obtain money, was not, in any event, for a community purpose. Rather it was for the purpose of seeking a donation towards a fund which would be used to pay legal and other expenses associated with the subject appeal. It was submitted for the developer that the pursuit of this appeal is a mechanism whereby the appellants seek to promote the general welfare of the public in this particular locality. It was pointed out that the letter seeking the donation stated “this in an investment in our home and the Gabba Hill”.
It seems to me that there is much to be said for the proposition that the relevant provisions of the Collections Act are focused on the purpose for which money attracted by an appeal for support will be spent (in this case, litigation funding) rather than the underlying motives (such as a concern for local amenity) for pursuing that. This is however, not a matter upon which I need to reach a concluded view, since I would not grant the relief sought by the developer even if the correspondence offended the Collections Act[1].
[1]I am also mindful that contestable allegations of criminality are generally not apt for resolution through the interlocutory process of civil litigation, if it is unnecessary to do so.
It is not the role of this court to enforce the Collections Act. There is a statutory regime for that. It has already been observed that a breach of s 10 constitutes an offence. An offender renders himself or herself liable to prosecution. Further, s 34 of the Act gives the Minister the power to act to protect the public by directing the following:
(a) that an appeal for support be discontinued;
(b) that no future appeals for support for the purpose be made; or
(c) any financial institution or person who holds property raised by or resulting from the appeal for support not depart with the property without the prior approval of the Minister.
There is no suggestion of any pending prosecution or direction by the Minister in this case.
The relief which the developer seeks includes injunctive-style relief to remedy any past breach of the Collections Act and restrain any future breach of that Act. That is not something which this court would ordinarily have jurisdiction to consider.
It was contended, on behalf of the developer, that the court should entertain the relief sought on the basis of its inherent jurisdiction to prevent an abuse of its process. It was submitted that the impugned correspondence is not just a breach of the Collections Act but an abuse of the process of this court. The relevant principles in relation to the inherent jurisdiction of any court to control its process have recently been summarised by French CJ, Gummow, Hayne and Crennan JJ in Jeffrey and Katauskas v SST Consulting (2009) 239 CLR 75 as follows:
“[25] The history of sanctions for abuse of process dates back to Anglo-Saxon times when the focus was largely on false accusations and the sanctions included loss of the accuser’s tongue. By the time of Edward I, there was provision made by the Statute of Champerty for remedies against “Conspirators, Investors and Maintenors of false Quarrels, and Partakers therefore, and Brokers and Debates”. It seems that combination was not necessary to the action. Champerty, maintenance and barratry also featured prominently as early species of abuse of process.
[26] The common law offences and torts of maintenance and champerty were abolished in the United Kingdom in 1967 and in New South Wales in 1995. The New South Wales legislation expressly provides that the Act does not affect any rule of law as to the cases in which a contract is to be treated as contrary to public policy or as otherwise illegal, whether the contract was made before, or is made after, the commencement of this Act”. And the abolition of the offences and torts did not preclude the possibility that non-party funding of legal actions for reward or otherwise might give rise to an abuse of process. But to acknowledge that possibility is not to hold non-party funding of a litigant for reward to be an abuse of the process of the court. That proposition could not stand with the decision of this court in Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd.
[27] An early statement of the power of any court to prevent abuse of its processes is found in an 1841 case, Cocker v Tempest:The power of each Court over its own process is unlimited; it is a power incident to all Courts, inferior as well as superior; were it not so, the Court would be obliged to sit still and see its own process abused for the purpose of injustice.
That statement foreshadowed the contemporary approach in the United Kingdom and Australia which takes no narrow view of what can constitute “abuse of process”. Nevertheless, certain categories of conduct attracting the intervention of the courts emerged in the 19th and 20th centuries and included:
(a) proceedings which involve a deception of the court, or are fictitious or constitute a mere sham;
(b) proceedings where the process of the court is not being fairly or honestly used but is employed for some ulterior or improper purpose or in an improper way;
(c) proceedings which are manifestly groundless or without foundation or which serve no useful purpose;
(d) multiple or successive proceedings which cause or are likely to cause improper vexation or oppression.
[28] The term “abuse of process”, as used in Australia today, is not limited by the categories mentioned above or those which constitute the tort. It has been said repeatedly in the judgments of this court that the categories of abuse of process are not closed. In Walton v Gardiner the majority adopted the observation in Hunter v Chief Constable of the West Midlands Police that courts have an inherent power to prevent misuse of their procedures in a way which, although not inconsistent with the literal application of procedural rules of court, would nevertheless be “manifestly unfair to a party to litigation … or would otherwise bring the administration of justice into disrepute among right-thinking people”. This does not mean that abuse of process is a term at large or without meaning. Nor does it mean that any conduct of a party or non-party in relation to judicial proceedings is an abuse of process if it can be characterised in some sense as unfair to a party. It is clear, however, that abuse of process extends to proceedings that are “seriously and unfairly burdensome, prejudicial or damaging” or “productive of serious and unjustified trouble and harassment”.
It has already been noted that there is nothing untoward about the proceedings on their face. There is no basis to conclude that the proceedings involve a deception of the court, or are fictitious or constitute a mere sham, or are not being fairly or honestly pursued, or are manifestly groundless or without foundation or useful purpose or are likely to cause improper vexation or oppression.
In support of its contention that an abuse is being perpetrated, counsel for the developer submitted that:
“Friend’s conduct in this regard can be seen as the unlawful funding of litigation. The conduct is not dissimilar to the unlawful funding and trading of a cause of action for which the torts of maintenance and champerty were created.”
Counsel for the developer relied, in support of his analogy, on the following passage from the 4th edition of the Law of Torts by Balkin & Davis:
“Any person who without lawful justification assists a plaintiff or defendant in civil proceedings to which that person is not a party commits the tort of maintenance”
The difficulty with applying that by analogy to the present facts is that the allegation of illegality, if any, here is that of the party in seeking funding in a way which is alleged to have breached the Collections Act. That does not undermine the justification of a non-party in deciding to assist. The qualification “without lawful justification” relates to the donor, rather than the recipient or the mode of collection.
The law in relation to maintenance has changed significantly over time. In many jurisdictions tortious liability has been abolished. At least in that context the High Court has recognised that a general rule against maintenance of actions “has long been abandoned and the qualification of that rule (by reference to criteria of common interest) proved unsuccessful”[2]. Even in jurisdictions where tortious liability has not been abolished, modern courts have adopted a more liberal attitude towards the support of litigation by third parties than had previously been the case[3].
[2]Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd (2006) 2009 CLR 386, per Gummow, Hayne and Crennan JJ at [89].
[3]Trendtex Trading Corporation v Credit Suisse [1982] AC 679 at 702; Fostif Pty Ltd v Campbells Cash and Carry Pty Ltd [2005] NSWLR 83, per Mason J at [84].
The analogy with maintenance is not apt in this case. There is nothing untoward about third party support for legal proceedings based upon a bona fide common interest[4]. In this case the letter was sent to someone who (having been a submitter), it is reasonable to have expected may have a common interest in the fate of the development application, which will be determined in the proceedings in this court. The terms of the letter, set out later, were obviously directed to obtaining a donation from someone with a shared concern about the Council’s approval of the proposed development. There seems to me to be no good reason, founded in public policy, why such a person ought not be permitted to contribute towards the litigation funding of those who have decided to exercise the statutory right of instituting an appeal to this court against the decision of the local authority. The letter was not an invitation to officious intermeddling.
[4]See the law of torts Balkin and Davis 4th edition para 25.40; Magic Menu Systems Pty Ltd v AFA Facilitation Pty Ltd (1997) 72 FCR 261 at 267.
Public policy considerations do not assist the developer. Section 5 of the Sustainable Planning Act2009 provides that advancing the Act’s purpose includes, amongst other things, “providing opportunities for community involvement in decision making”. The opportunities which are provided include not only an opportunity to make a submission in response to a publicly notified development application, but the consequent opportunity to appeal the decision on such an application to this court. The exercise of that right by an individual member of the community necessarily involves a degree of expense. The right of appeal is, in practical terms, illusory unless the individual can fund the exercise of that right.
The courts have come to recognise the problems which face the ordinary litigant in funding litigation and gaining access to the courts and are now tolerant of a wider range of commercial litigation funding arrangements[5]. It is unsurprising, in the current context, that an individual member (or individual members) of the community who decides to “take on” the City Council and the developer, by way of an appeal to this court, would seek to secure funding and, to that end, would seek the support of other individual members of the community who are perceived as potentially like minded, with respect to the development application the subject of the appeal, including those who made submissions. Such conduct would seem to be consistent with modern notions of the pursuit of access to justice.
[5]Campbells Cash and Carry v Fostif Pty Ltd (supra); Jeffrey & Katauskas v SST Consulting (2009) 239 CLR 75.
It is difficult to identify an appropriate basis upon which any breach of the Collections Act in this instance should bear upon the right of the appellant to pursue the proceedings in this court[6] and, indeed, the developer does not seek an order staying or striking out the appeal. Rather, it seeks orders which would, in effect, cut off this potential line of litigation funding to the appellant. Even if such orders were an available and potentially appropriate response to an abuse, it is difficult to see what corrupting or otherwise prejudicial effect such funding would have on the proper administration of justice in this case. Its effect is more likely simply to assist Mr Friend in being able to have his appeal determined, on its merits, in this court, the jurisdiction of which has been regularly invoked.
[6]Fostif Pty Ltd v Campbells Cash and Carry Pty Ltd [2005] NSWCA 83, per Mason P (Sheller JA, Hodgson JA agreeing) at [97].
Whatever the position under the Collections Act, I remain unpersuaded that the conduct which is alleged to constitute a breach of the Collections Act is conduct which amounts to an abuse of the processes of this court, or at least one which would persuade me to grant the discretionary relief which is sought in the application (assuming, without deciding, that it was within my jurisdiction to do so).
The developers complaint is not only that the letter seeking a donation was, it says, in breach of the Collections Act but also that it was misleading. The text of the letter (omitting bank account details, an email address and a telephone number) are as follows:
“Dear Simon McGuire
Subject – The Communities Chalk Hotel Appeal
We are writing to inform you that following the very successful and supportive objections to the Chalk Hotel development proposal and the approval of the application, the local community has lodged an Appeal in the Planning and Environment Court to seek changes to the development approval.
In this adventure, the local community will have to go up against Brisbane City Council who approved the development application, the developer and the Department of Transport and Main Roads.
It is acknowledged the development application received 187 submitters with the substantial majority of that number objecting to the development application. Despite that number of objections Council disregarded the communities view and approve the development application.
As you are aware this appeal will need the communities backing emotionally and financially.
We are therefore asking if you are able to donate some funds to the community fight to assist with the expenses that the community will have if we are to win this battle. This is an investment in our home and the Gabba Hill.
One of the outcomes for the decision by Council to approve the development application is that it set a precedent for the rest of the Gabba Hill and for other suburbs around Woolloongabba such as Kangaroo Point, Dutton Park, Highgate Hill etc.
The community has established a bank account where donations can be deposited. The account details are:-
Bank –
Branch –
BSB –
Account Number –
Name – Gabba Hill AccountI am happy to provide you with a receipt for any donation. If you have any questions please contact Rob Friends at [omitted].
Thank you for your support.”
Rob Friend for the Gabba Hill Community
The developers complaints are as follows:
“(a) the Appeal has not been commenced by the Gabba Hill Community as the Letter suggests. It was commenced by a few individuals of the KPA. There is no evidence of who in fact the KPA is and what it represents. When pressed on those questions by Tretham, KPA discontinued their involvement in the Appeal;
(b) the Appeal has not been lodged to seek changes to the development approval, but rather seeks the refusal of the application;
(c) DTMR are not a party to the appeal: it did not elect to joint the appeal
(d) the Council did not disregard the Community’s view: there is no basis to suggest that Council did not take into account the submissions made;
(e) the Council’s decision does not set a precedent for the rest of the Gabba Hill and surrounding suburbs such as Woolloongabba, Kangaroo point, Dutton Park and Highgate Hill: that statement is clearly baseless in a planning sense;
(f) the Gabba Hill Community has not set up a bank account. No such entity exists. To the contrary, it is clear that it is Friend who has set up the account and is to receive the money.”
There is no doubt that the letter has some inaccuracies but:
(a) It is not unknown for passionate individual members of the community pursuing matters of perceived public interest, to presume to speak on behalf of the broader community or a section thereof;
(b) While the appeal does not, in terms, “seek changes to the development approval” it does seek orders that “the application be refused in its current form” and does go on to suggest further conditions that should be imposed if the development was to proceed. Matters in the Planning and Environment Court are not uncommonly resolved by amending the proposed development to accommodate matters of concern;
(c) DTMR is not a party of the appeal, but it was a concurrence agency which the application was referred by the Council;
(d) While there is no evidence that the Council failed to consider the submissions, its decision to approve the development was a rejection of those who opposed the proposal;
(e) Whilst 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;
(f) The claim in the letter that “the community” has established a bank account may be inaccurate, in that neither the “community” or the “Gabba Hill Community” is a legal entity, but, as already observed, it is not unknown for a group of individuals within a community (such as the appellants and, perhaps, others assisting them) to presume to speak for the community or a section thereof, particularly when pursuing what they perceive to be community interest issues.
There is no suggestion that the statements constitute a contempt of court.
I can understand that the developer does not welcome the prospect of a fighting fund being built up by its opponent, particularly if donations are being obtained by publicising inaccuracies. It is however, the protection of the broader public which is the evident purpose of the Collections Act, rather than the protection of a developer party to an appeal in this court. There is no evidence that anyone has been materially misled. I do not consider that Mr Friend’s conduct creates a manifest unfairness to the developer in this proceeding or would bring the administration of justice into disrepute among right minded people. The level of any inaccuracy in the letter, considered alone or in conjunction with the alleged breach of the Collections Act, does not lead me to a conclusion that the process of the court is being abused at all, let alone being abused in a way which would persuade me to make any of the orders sought.
It was pointed out that while there is only one letter of which the developer is aware, Mr Friend has declined to agree to provide undertakings to do the things which are now the subject of the orders sought against him. It was submitted that I could infer that his fundraising activities had gone beyond, or are intended to go beyond, the single letter identified to date. My conclusions however, would not change even if Mr Friend had written to, or intended to write to, others seeking a donation from members of the community sympathetic to the appellants’ concern about the development application the subject of the appeal.
The application in pending proceedings is dismissed. I will hear submissions as to costs.
0
5
1