Gray v Gympie Regional Council - [2016] QPEC 49

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Gray v Gympie Regional Council [2016] QPEC 49

PARTIES:

DEIRDRE GRAY

Appellant

v

GYMPIE REGIONAL COUNCIL

Respondent

FILE NO/S:

22/15

DIVISION:

Planning and Environment Court at Gympie

PROCEEDING:

Application for costs

DELIVERED ON:

27 September 2016

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Bowskill QC DCJ

ORDER:

The appellant pay the respondent’s costs of the appeal, from 24 June 2016, including the costs of this application, on the standard basis.

CATCHWORDS:

PLANNING AND ENVIRONMENT – Costs – Whether the appellant should be ordered to pay the respondent’s costs of an appeal, in circumstances where the appeal is discontinued

Sustainable Planning Act 2009, s 457

Uniform Civil Procedure Rules 1999, r 430

Deputy Commissioner of Taxation v Ahern (No 2) [1988] 2 Qd R 158

Hoffie v Brisbane City Council (2013) 197 LGERA 28

Kiama Council v Grant (2006) 143 LGERA 441
Manly Wharf Pty Ltd v Manly Council (1997) 98 LGERA 245
New South Wales Crime Commission v Vu [2009] NSWCA 349

One.Tel Ltd v Commissioner of Taxation (2000) 101 FCR 548

SOLICITORS:

Connor O’Meara Solicitors for the Appellant

P&E Law for the Respondent

Introduction

In 2015 Ms Gray made an application to the Gympie Regional Council for approval for development comprising a material change of use, to convert an existing dwelling house, within a residential living zone, into a “hardware and trade supplies” store. On 16 September 2015 the Council resolved to refuse the application, on a number of bases, including conflict with the residential living zone of the planning scheme, and conflict with the strategic framework of the planning scheme.[1]
[1] Annexure LAM-5 to Mr Manning’s affidavit, affirmed 19 August 2016.
By notice of appeal filed on 14 October 2015, Ms Gray appealed the Council’s decision to this Court. The appeal was lodged for Ms Gray, by Mr Hartley, of Plansmart Development Solutions (town planners) as her agent.
On 2 August 2016, Ms Gray discontinued her appeal (by notice of discontinuance dated 29 July 2016).
The Council seeks an order under s 457 of the Sustainable Planning Act 2009 that Ms Gray pay its costs of the proceeding, or some part of them at least. Ms Gray submits the appropriate order is that each party bear their own costs.
The application has been dealt with on the papers, on the basis of material filed, and written submissions from both parties.[2]
[2]Council’s primary submissions, dated 26 August 2016; Ms Gray’s submissions, dated 8 September 2016; Council’s submissions in reply, dated 13 September 2016; Ms Gray’s “additional submissions on costs”, dated 23 September 2016.

Procedural history, leading to discontinuance of appeal

The appeal was commenced, according to Mr Hartley, on the basis of a view he formed that Ms Gray had reasonable prospects of success.[3]
[3] Affidavit of Hartley at [4]-[5].
As early as 4 February 2016, the solicitor for the Council invited Ms Gray to withdraw her appeal, on the basis that it had little prospect of succeeding;…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] QPEC 49
Decision Date: 27 September 2016

CaseChat Overview and Summary

In this matter, the appellant, Gray, sought to challenge a decision made by the Gympie Regional Council concerning a planning permit. The appellant's appeal was subsequently discontinued, leading to a subsequent application for costs. The Court of Appeal was tasked with determining whether the appellant should be ordered to pay the respondent's costs of the appeal, given the circumstances of the discontinued appeal. The central legal issue before the court was whether it was appropriate to order the appellant to pay the respondent's costs in light of the discontinued appeal. This issue required careful consideration of the principles governing costs in such situations, particularly in cases where an appeal is not pursued to its conclusion.

The Court of Appeal considered the general principles that guide the awarding of costs in appeals. The court recognised that costs are generally awarded to the prevailing party, and in cases where an appeal is discontinued, the court must weigh the equities of the situation. The court noted that the appellant had initiated the appeal but chose to discontinue it, which led to the respondent incurring costs. The court held that the appellant should be ordered to pay the respondent's costs from the date of the discontinuation of the appeal. The court emphasised that the respondent had incurred costs as a direct result of the appellant's decision to pursue and then discontinue the appeal, and it was fair for the appellant to bear these costs. The court concluded that the principles of fairness and discouraging frivolous litigation supported the imposition of costs in these circumstances.

Given the above, the Court of Appeal determined that the appellant should be ordered to pay the respondent's costs of the appeal, from 24 June 2016, including the costs of the application. This order was made on the standard basis, reflecting the court's view that the respondent was entitled to recover the costs incurred as a result of the appellant's actions. The court's decision was grounded in the need to uphold the integrity of the legal process and to ensure that parties do not unduly burden others with litigation costs without justifiable cause.

Orders

Orders of the court

The appellant pay the respondent’s costs of the appeal, from 24 June 2016, including the costs of this application, on the standard basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Gray v Gympie Regional Council [2016] QPEC 49
PARTIES:	DEIRDRE GRAY Appellant v GYMPIE REGIONAL COUNCIL Respondent
FILE NO/S:	22/15
DIVISION:	Planning and Environment Court at Gympie
PROCEEDING:	Application for costs
DELIVERED ON:	27 September 2016
DELIVERED AT:	Brisbane
HEARING DATE:	On the papers
JUDGE:	Bowskill QC DCJ
ORDER:	The appellant pay the respondent’s costs of the appeal, from 24 June 2016, including the costs of this application, on the standard basis.
CATCHWORDS:	PLANNING AND ENVIRONMENT – Costs – Whether the appellant should be ordered to pay the respondent’s costs of an appeal, in circumstances where the appeal is discontinued Sustainable Planning Act 2009, s 457 Uniform Civil Procedure Rules 1999, r 430 Deputy Commissioner of Taxation v Ahern (No 2) [1988] 2 Qd R 158 Hoffie v Brisbane City Council (2013) 197 LGERA 28 Kiama Council v Grant (2006) 143 LGERA 441 Manly Wharf Pty Ltd v Manly Council (1997) 98 LGERA 245 New South Wales Crime Commission v Vu [2009] NSWCA 349 One.Tel Ltd v Commissioner of Taxation (2000) 101 FCR 548
SOLICITORS:	Connor O’Meara Solicitors for the Appellant P&E Law for the Respondent