Greet v Logan City Council
[2003] QPEC 45
•25 August 2003
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Greet v Logan City Council and Local Government [2003] QPEC 045
PARTIES:
ALLAN ROSS GREET
Appellant
v
LOGAN CITY COUNCIL
First Respondent
and
EDWARD CAMPBELL, as Chief Executive of DEPARTMENT OF LOCAL GOVERNMENT AND PLANNING
Second RespondentFILE NO/S:
1127 of 2001
DIVISION:
Planning and Environment
PROCEEDING:
Respondent’s costs application in Appeal under s.44 of Building Act 1975
ORIGINATING COURT:
Brisbane
DELIVERED ON:
25 August 2003
DELIVERED AT:
Brisbane
HEARING DATE:
28 July 2003
JUDGE:
Robin DCJ
ORDER:
Appellant to pay Respondent Council $32,000 as compensation for costs in bringing complaint
CATCHWORDS:
Costs – appeal by building certifier against determination he was ‘guilty of professional misconduct’ -‘appeal withdrawn on eve of hearing – filing of notice of discontinuance - within 14 days allowed, respondent applies for compensation for its ‘costs in bringing the complaint’ – jurisdiction to make order - whether court is ‘deciding the matter’ – costs not assessed – no occasion for court to consider for itself whether ‘professional conduct’ was established – relevant considerations in determining appropriate amount of compensation – Building Act 1975 s.45(3)(c)(i) - Planning and Environment Court Rule 11A
COUNSEL:
Mr J Houston for Application Council (Respondent in Appeal)
Mr Abaza (Solicitor) for the AppellantSOLICITORS:
Corrs Chambers Westgarth for the Applicant Council
Andrew Abaza for Appellant
Before the court is the Council’s application filed 10 June 2003 for an Order pursuant to s.45(3)(c)(i) of the Building Act 1975 that the appellant Mr Greet pay to it such amount as the court considers appropriate as compensation for its costs of “bringing the complaint” which resulted in the decision of the Second Respondent the subject of Mr Greet’s appeal to this court.
That decision of the Chief Executive was one under s.43(1)(a) of the Act that Mr Greet, a building certifier, was “guilty of professional misconduct”, as had been the primary decision of the “accrediting body” under s.40(1)(a), which was accompanied by a direction in reliance on paragraphs (b) and (c) of subs (2). The accrediting body is the Building Services Authority. The appeal to the Chief Executive was instituted by letter of 21st August 2000. The appeal from the Chief Executive’s decision to this court was made by notice of appeal filed 3rd March 2001.
Given the discontinuance and withdrawal of the appeal on 26th May 2003, on the eve of the hearing (which had been fixed at a call-over on 24th April 2003), the court has not had occasion to look into the merits of the appealed determination that Mr Greet was guilty of “professional misconduct” as a (private) building certifier. The determination of guilt followed from the determination made by the Chief Executive and/or his delegate that Mr Greet in a particular matter had:
(a) “not ascertained all the available facts relevant to the performance of his duties” and thereby was in breach of Item 15 of the Building Services Authority Code of Conduct, and
(b) “also failed to comply with Item 4 of the Code of Conduct, as he has not complied with the Standard Building Regulation 1993. That is, he has failed to obtain an amenity and aesthetics assessment as required by the Council resolution of 5 May 1998.”
The Code of Conduct has not been placed in evidence in this matter; presumably, it corresponds with the document which because Exhibit 2 in Kilmister v Gold Coast City Council, 324 of 2001, 11 October 2001 and 19th November 2001, and Exhibit 7 in Stacy Kennedy v Gold Coast City Council, 393 of 2001, Southport, 30 January 2002, which concerned paragraphs 4, 13 and 15. There’s been no occasion for this court to look into the facts which constituted the breaches found for itself.
Mr Greet’s difficulty flowed from ignorance on his part and on the parts of relevant staff of his company of (and in consequence failure to comply with the requirements of) a resolution of the Council of 5 May 1998.
It must be conceded that the requirement Mr Greet had to have regard to in approving an application to construct a shed (which the court was told was to be 62m2 in area) was not easy to locate. The relevant item in the minutes of the meeting of the Council of 5 May 1998 is as follows:
“Adoption of the balance of the Town Planning and Environment Committee report dated 28 April 1998
147/98 Resolved: Cr Grant, Cr Clark
That the Committee’s recommendations in respect of Item DS1, Items PE1 to PE3 inclusive, Item PE6, Items PE8 to PE10 inclusive and Item DC1 be adopted.
Confirmed at the ordinary meeting of council held on 19 May 1998
Mayor”
Item DC1 was a recommendation of the Committee that:
“1. Logan City Council in accordance s.50.1(1) of the Building Legislation Amendment Regulation of 1998 declares that all development applications for class 1 removal houses and class 10 buildings which have a floor area in excess of sixty square metres proposed to be erected in the city must be assessed by Council on the amenity and aesthetics in respect of the proposed work, and
2. Fees for assessing removal houses remain at the current levels whilst the fee for assessing a class 10 building exceeding sixty square metres be set at $125.”
(in which the correct statutory reference is to s.50(1)). It is set out by Judge Quirk in Greet v Logan City Council (2002) QPELR 151, 154 in the course of his Honour’s determination of a preliminary point in this appeal (pursuant to directions given by Judge Brabazon) regarding the validity of the resolution.
Mr Greet, who approved building work for the proposed shed at 620-622 Browns Plains Road, Marsden on 19 February 1999, became aware of the Council resolution only on 26 May 1999, in correspondence from the Council relating to another development permit. A complaint was received in the Council on 22 November 1999 as to the use being made of the site in Browns Plains Road. Ensuing investigations led to the issue one month later to the owner of a Show Cause Notice advising that the development permit had been obtained without an assessment for amenity and aesthetics pursuant to the resolution. It is understood that the shed was subsequently demolished.
Mr Greet’s inquiries unearthed widespread ignorance (extending to that of a number of employees of his company who had been with the Council) of the resolution. In the absence of proper evidence to support the assertion by Mr Greet that another employee received telephone confirmation from the Council on 19 February 1999 “that no restrictions apply and no relaxations are needed”, no weight should be given to that assertion. It is common sense that some written record ought to be generated of advice of that kind in a form which will serve to commit the alleged advice-giver to the giving and to the veracity of it.
It is unsurprising that Mr Blumkie, an investigator who reported to the Chief Executive’s delegate, states the following:
“I believe there are mitigating circumstances that need to be considered as part of this appeal.
·Logan City Council introduced the resolution on 5 May 1998 without any formal notification process other than a Logan City Council application Fee Scale issued in July 1998. It is acknowledged that there is no legislative requirement to provide a formal notification process or introductory period. I believe it would have been appropriate for Council to have at least notified the principal clients affected by the resolution. These would have included the following:-
·Shed manufacturers
·Architects/Draft persons
·Builders
·Private Certifiers
·Consideration could have been given to a number of options including press release, handouts, mail out list or even a seminar etc.
I understand Council now conducts seminars on a regular basis.”
Although Mr Greet’s situation demands sympathy and his delinquency must be accounted minor, there is a tenable basis for holding him responsible, and for the Council’s lodging the relevant complaint with the Building Services Authority on 10 December 1999. Mr Greet ought to have been aware of s.20 of the Standard Building Regulation 1993, which is, in part:
“20.(1) This section applies if –
(a)a development application involves a matter mentioned in schedule 6;19 and
(b)the local government is the assessment management; and
(c)the application is made to a private certifier.
(2)If the local government is asked to consider a matter mentioned in schedule 6, the local government must give written advice on the request to the private certifier and the applicant within -
(a) for building work in relation to a single detached class 1 building or class 10 building or structure only – 5 business days after receiving the request; or
(b) for other building work – 15 business days after receiving the request.
(3) The private certifier must not decide the application unless the local government has given written advice on the matter.”
Schedule 6 identifies as “Building work requiring local government approval or decision,” among other categories:
“5. The amenity and aesthetic impact of building work for forms of building or localities the local government must assess under s.50.”
Section 50 is:
“50.(1) A local government, by resolution, may declare, for single detached class 1 buildings or class 10a buildings, forms or buildings and localities the local government considers may have an extremely adverse effect on the amenity or likely amenity of a locality or which may be in extreme conflict with the character of a locality.
(2) Development applications for forms of building or in localities mentioned in subsection (1) must be assessed by the local government for the amenity and aesthetic impact of the proposed building work.
(3) The local government may refuse an application to which subsection (2) applies only if -
(a)the building, when built, will have an extremely adverse effect on the amenity or likely amenity of the building’s neighbourhood; or
(b)the aesthetics of the building, when built, will be in extreme conflict with the character of the building’s neighbourhood.”
Section 51 commences:
“51. (1) This section applies to a development application made to a private certifier that must be assessed under s.50.
(2)The private certifier must not approve the application unless advice has been given in accordance with s.20 regarding the amenity and aesthetic impact of the proposed building work.”
The possibility of there being a resolution pursuant to s.50 is something Mr Greet and his company ought to have had in mind. It seems that insufficient care was taken to ensure there was no relevant resolution. I would repeat the view expressed in Stacy Kennedy (30.1.02) that “Private building certifiers, such as Mr Kennedy, owe no less of a duty to their clientele (in which I include the general public) to produce correct outcomes required by statutory arrangements than public authorities exercising similar functions.”
For present purposes, Judge Quirk’s decision disposes of Mr Greet’s challenge to the validity of the resolution. Mr Greet was disinclined to accept the ruling, unsuccessfully seeking leave of the Court of Appeal to appeal against it. See Greet v Logan City Council, Appeal No. 9827 of 2001, 25 February 2002. In accordance with the practice, Mr Greet was ordered by the Court of Appeal to pay the Council’s costs in relation to the leave application to be assessed. I am assured that no part of those costs is included in the Council’s present application before this court.
In her affidavit sworn on the last business day before the hearing, Ms Roach deposes that the Council has incurred legal costs in excess of $108,000, for which it might obtain “compensation” under s.45(3)(c) of the Building Act.
Mr Houston, appearing for the Council, submitted that s.45 “covers the field”, so to speak, so far as concerns the court’s jurisdiction to award costs (indirectly as “compensation”) in an appeal such as the present, although he did mount, belatedly, an argument that some of the exceptional circumstances listed as justifying a costs order, notwithstanding the general proscription, in s.4.1.23 of the Integrated Planning Act 1997 were available to his client. I find it unnecessary to consider that alternative argument. Consideration of the section indicates that a fairly compelling case of inappropriate conduct in a proceeding must be demonstrated to bring in those exceptions. It seems clear that careful, separate attention would need to be paid to particular steps taken in the proceeding, by a party against whom a costs order is sought, and the way in which those steps were pursued.
Although unusually expressed, s.45(3)(c) in my opinion authorises the court to award as ”compensation” the full amount of “any costs in bringing the complaint” actually incurred by “the complainant or another person”. Whether or not in an appropriate case the court would order assessment of costs, that will often be inconvenient, and is so here (it clearly has not happened). In the usual case, the court would be mindful of the need to protect the building certifier against having to pay the amount of any costs incurred unnecessarily or on a too extravagant basis (or in pursuance of some aspect of the proceedings in which the building certifier enjoyed success). Whether or not there be some analogy with the practice whereby costs are not commonly ordered in criminal matters, it may be that in the working out of s.45, the court will be less solicitous to ensure that a complainant which is a local government is reimbursed fully for its costs than it might be in the case of a citizen funding successful proceedings privately.
The Council claims “an amount of between $20,000 and $50,000” by way of compensation (per Mr Houston at p 6 and p.38). In those circumstances Mr Abaza’s unhappiness at the very short notice he has had of the assertion that the costs aggregate $108,000 is of less concern. In the end, I did not understand him to make any application for an adjournment to respond. I would have not have been inclined to grant such an adjournment. It would have been otherwise had the Council sought compensation in anything like the total amount, although, as things stand, there is no reason to doubt Ms Roach’s affidavit. In Kilmister v Gold Coast City Council [2002] QPELR 269, it was determined that “costs in bringing the complaint” extended to costs incurred in an appeal by a building certifier to this court. The approach was taken that, even if there was no assessment exercise, compensation for costs should be limited to amounts the court was satisfied had been expended (I would now add “properly and usefully expended”). The approach was that where the complainant Council suggested a “compensation” amount, the court would not order more. (The costs application there was adjourned so that evidence could be presented showing costs incurred in excess of the $10,000 suggested.) In Kilmister, “making a generous allowance for the ‘test case’ aspect” of the matter (an aspect not present here), compensation of $4,500 was ordered.
Mr Abaza argued that the application for costs (or compensation on account of costs) ought to be dismissed because the relevant jurisdiction to order compensation, in accordance with the introductory words of s.45(3) was given to the court “in deciding the matter”. Mr Abaza submits “the matter” is identified in subs.(1):
“The court must decide whether or not the building certifier is guilty of professional misconduct.”
As things have developed, there is no need for the court to make any decision or finding. Mr Greet’s appeal, had it proceeded, would have been determined in a hearing de novo. See Judge Skoien’s ruling in Stacy Kennedy v Gold Coast City Council, No. 393 of 2001, 23 July July 2001, and his similar ruling in Kilmister, both referred to in my reasons in Kilmister of 11 October 2001. The onus of proof that professional misconduct had occurred would have been borne by the Council.
I do not accept Mr Abaza’s argument, which strikes me as highly artificial. The controversy between the parties has been brought to the court. I have no difficulty in regarding the court as “deciding the matter”, although there is no determination by the court regarding the issue of professional misconduct. The withdrawal or discontinuance of the appeal, in my opinion, leaves unimpaired the determination of the Chief Executive in that regard. The position seems to me indistinguishable from one (like Kilmister) in which the court determined for itself on appeal that there was “professional misconduct”. The issue was not argued before me, but I would observe, for what it is worth, that no reason has emerged casting any doubt whatever upon the correctness of the determinations in that regard made by the accrediting body or the Chief Executive. It would be an anomalous situation if an adverse determination against a building certifier could be expunged by the instituting of an appeal against it which was withdrawn before being heard. If necessary, to found jurisdiction to entertain the Council’s present application, I would be prepared as things stand, to find Mr Greet ‘guilty of professional misconduct’ anew, on the basis of the limited material put before the court by Mr Greet himself.
I agree with Mr Abaza that, assuming the court has jurisdiction, its power under s.45(3)(c) must be exercised judicially. In that regard, his written submissions note that there is no substantial evidence, indeed no evidence by the Council, that Mr Greet was ever guilty of professional misconduct. He notes that the Council has not attempted to show that the Council’s Code of Conduct relied on by the Chief Executive was validly made, or that the Council’s resolution of 5 May 1998, was ever brought to anyone’s attention, or that an “amenity and aesthetics” report or investigation by the Council would have had any effect. The evidence of Mr Challoner, a town planner, was relied on in this respect. Mr Abaza suggested that the general ignorance of the Council’s resolution and the Council’s failure to contradict the supposed content of the phone call on 19 February 1999, led to a situation in which the court ought not visit severe repercussions on Mr Greet on the basis of his being guilty of “professional negligence”. Mr Greet’s own affidavit exhibits the complaint, the Chief Executive’s decision and Mr Blumkie’s report. In my opinion, it would have been oppressive in the circumstances for the Council, after discontinuance of the appeal, to seek their costs in presenting the case against Mr Greet which might otherwise have been appropriately presented.
I have had occasion in Kilmister and in Stacy Kennedy to express regret that the Building Act defines “professional misconduct” in s.3 in wide and special terms, extending the concept to conduct when a building certifier (whether by act or omission):
“(a)seeks, accepts or agrees to accept a benefit (whether for the building certifier’s benefit or another person) as a reward or inducement to act other than under this Act; or
(b)acts in a way contrary to a duty under this Act; or
(c)falsely claims the building certifier has the qualifications, necessary experience or accreditation to be engaged as a building certifier; or
(d)acts outside the scope of the building certifier’s powers; or
(e)contravenes a code of conduct published by an accrediting body; or
(f)acts negligently or incompetently in relation to the certifier’s practice.”
Many things are covered which do not involve the moral obloquy the ordinary person would associate with “professional misconduct”. It is unsurprising that a professional person, to protect his or her good standing, would pursue all avenues open to have a determination of guilt of professional misconduct set aside.
Mr Abaza was invited to go beyond the evidence and indicate the disabilities which might follow such a determination. I accept from him that there may be disadvantages in obtaining insurance. Section 40(2)(e) and (f) contemplate the suspension or cancellation of a building certifier’s accreditation – not a step contemplated here, but doubtless a step more likely to be taken as instances of “professional misconduct” established against a building certifier multiply. Material before the court indicates that Mr Greet has had other issues. Indeed, running in tandem with this matter was Greet v Brisbane City Council (Judge Brabazon QC, 3 May 2001) in which this court stayed a decision by the Building Services Authority to suspend Mr Greet’s accreditation for 90 days, in the context of a long-running dispute regarding the level of fees being charged by Brisbane City Council.
It is difficult to see why the Council’s situation ought to be prejudiced by concerns Mr Greet undoubtedly harboured which led him to institute and pursue his appeal over the years. He has done this in a way which, with hindsight, has been demonstrated to be inappropriate. In the end, he did not even ‘run’ the appeal. The fate of the contention that the Council’s resolution of May 1998 was invalid has been recounted. The notice of appeal was a very long document raising many grounds, a good number of which were abandoned following challenge by the Council, in the making of a consent order of 14 March 2003. (Mr Houston took the court through some of the abandoned grounds of appeal, for the purpose of showing that, although they were so wide-ranging, they did not extend to some arguments now being made by Mr Abaza, such as that relating to the standing of the Code of Conduct.) The present are circumstances in which, however much sympathy one might have towards Mr Greet about the serious consequence of his defective performance of his function on 19 February 1999 (there was no suggestion that he had approved a structurally inadequate building, or anything of that kind), once the complaint was made, rather than acknowledge it, he contested it at every point, putting the Council to considerable expense in the process.
I do not detect in the Building Act anything resembling the policy of the Integrated Planning Act against the awarding of costs. I do take into account that the Council may be seen as acting severely in instituting its complaint, also that it is likely the demolition of the shed may have had costly implications for Mr Greet or his company (a matter of pure speculation). I have regard to the well accepted understanding that the costs which courts are accustomed to award fall lamentably short of those which “successful” litigants have to pay. See Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248, 251. I am not persuaded that the aggressive way in which Mr Greet has pursued his interests was improper or was obviously doomed to be unsuccessful, to the extent of justifying a costs order of a penal kind against him.
It is useful to set out, as an indication of the burden of legal costs Mr Greet’s appeal has caused the Council to incur, Ms Roach’s summary of accounts rendered to it:
· “Account dated 30 April 2001 – covering the period from receipt of instructions to 30 April 2001, including perusing the Notice of Appeal and associated material, preparation of Entry of Appearance and briefing of Counsel, on preparing outline of submissions and initial appearance before His Honour judge Brabazon on 23 April 2001 and various other attendances and discussions with parties to the action and the client.
Total of account (including GST) - $7,028.12
· Account dated 28 May 2001 – covering the period from 30 April 2001 to 25 May 2001 including the appearance before His Honour Judge Brabazon on 30 April 2001, collection of and perusal of transcripts of the directions hearing, requesting and perusing information from the client relevant to the preparation of particulars ordered by His Honour Judge Brabazon, discussions with the client and Counsel regarding those particulars.
Total of account (including GST) - $7,711.26
· Account dated 21 June 2001 – covering the period from 22 May 2001 to 20 June 2001 including perusing documents received from the BSA’s disciplinary file, conferring with Counsel about the preliminary issue, perusing Counsel’s advice on the preliminary issue and discussing that matter with Counsel and the client.
Total of account (including GST) - $3,955.24
· Account dated 25 July 2001 – Covering the period 21 June 2001 to 25 July 2001 including meetings with the client to discuss the preliminary issue, consideration of delegations of authority at the request of the Appellant, discussions with Counsel regarding the preliminary issue, consideration of the terms of an Order regarding conduct of the hearing of the preliminary issue, liaising with various parties associated with the action including correspondence and discussions with the Appellant’s solicitor and The Crown Law Office, attendance at the callover on 20 July 2001 and receiving instructions to retain Senior Counsel in connection with the preliminary point.
Total of account (including GST) - $7,166.06
· Account dated 28 August 2001 – covering the period 26 July 2001 to 27 August 2001, including considering correspondence from the Appellant’s solicitors seeking a statement from Councillor Grant and receiving instructions to respond to the letter, discussions with Counsel and the client, briefing Senior Counsel, preparation for the hearing of the preliminary issue, conferences with Counsel, and general attendances and discussions with parties to the proceedings including the Appellant’s solicitors and Crown Law.
Total of account (including GST) - $20,718.52, including Counsel’s fees of $6,250.00
· Account dated 25 September 2001 – covering the period from 28 August 2001 to 24 September 2001 including perusal of submission and other correspondences forwarded between the parties to the appeal, discussions and correspondence with Counsel in connection with the preliminary issue, discussions with client in relation to the preliminary issue, attending at Planning and Environment Court instructing Counsel on the hearing of the preliminary issue before His Honour Judge Quirk, further attendance before His Honour Judge Quirk receiving Judgment, reviewing Judgment and discussing with client.
Total of account (including GST) - $46,094.67, including fees for Mr Doyle as Senior Counsel and Mr Houston of Counsel (in respect of the application to set aside the subpoena and the hearing of the preliminary issue) in the sum of $36,780.00.
· Account dated 29 October 2001 – covering the period from 25 September 2001 to 23 October 2001. This bill is mostly solicitor/own client costs relating to discussing the conduct of the action to date and proposed future actions on the appeal.
Total of account (including GST) - $1,019.63
· Between November 2001 and June 2002 further accounts were delivered by this firm to the First Respondent, however these accounts related solely or predominantly to the application for leave to appeal which was the subject of a costs order in favour of the First Respondent and the subsequent assessment of costs awarded on that application.
· Account dated 29 July 2002 – covering the period from 26 June 2002 to 24 July 2002, which includes some costs associated with the preparation of the letter which is DMR-3 to my previous affidavit including conferring with Counsel.
Total of account (including GST) - $4,324.43
· Account dated 26 February 2003 – covering the period from 24 January 2003 to 25 February 2003 relating to the bringing of the application for the striking out of the proceedings.
Total account (including GST) - $415.80
· Account dated 28 March 2003 – covering the period from 26 February 2003 to 18 March 2003 which includes preparation of the application and supporting material for the striking out application, discussions with Counsel, correspondence with the parties to the action including the Crown Law Office, attendance at Court on the return date for the application, further correspondence and discussions with Counsel and the Appellant’s solicitors, attending Court on 14 March 2003.
Total of account (including GST) - $3,366.84
· Account dated 28 April 2003 – covering the period from 1 April 2003 to 28 April 2003 including attending a callover of the matter and discussions with Mr Houston.
Total of account (including GST) - $4,379.10 including Counsel’s fees of $3,450.00, relating to inter alia the application to strike out the Notice of Appeal.”
Nothing is indicated there to cover the hearing of the present application on 28 July 2003.
While it may seem curious to have an application as substantial as the present dealt with after the filing of the notice of discontinuance, the situation is dealt with by r.11A of the Planning and Environment Court Rules 1999:
“Discontinuing and withdrawing proceedings
11A.(1) An applicant or appellant may discontinue a proceeding, or withdraw part of it, by filing in the court in which the originating process was filed:-
(a)a notice of discontinuance or withdrawal; and
(b)an affidavit stating the date a copy of the notice was served on each active party in the proceeding.
(2) If an active party wants to make an application to the court about the proceeding after being served with a copy of the notice, the active party must make the application within 14 days after being served with the copy.
(3) If no applications are made to the court under subrule (2) within the 14 days mentioned in the subrule, the discontinuance or withdrawal takes effect at the end of the 14 days.”
The Council’s application was made within the fourteen day period referred to in r.11A(2). It was contemplated in Buckler v Council of the Shire of Albert (2001) QPELR 12 that applications may be made in circumstances such as the present “for any necessary adjustment to the position of any party which has been brought about by the institution of the Appeal and its conduct.”
(Per Quirk DCJ at 14.)
In arriving at the sum to be fixed by the court, which is the best estimate I can make of a just compensation amount, I have taken into account recent experience in reviews under UCPR Rule 742 and otherwise of the level of costs charged by counsel and solicitors in litigious matters (which tends to support the upper limit of Mr Houston’s claims), the discount forced on “successful litigants” in assessments on the standard basis by court officers (a discounting which, by analogy I hold appropriate in present circumstances, while accepting the Building Act is silent about it), the engagement of senior counsel before Judge Quirk, (which may be accounted a luxury Mr Greet should not have to pay for), the somewhat technical nature of the “professional misconduct” alleged (as opposed to misconduct of greater seriousness, such as a corrupt conspiracy to provide an approval which plainly should not be granted, or approval of something structurally dangerous), “public interest” aspects of the Council’s acting as prosecuting authority, the unjustifiable width of the grounds of appeal, many of which were abandoned after challenge, and (generally) Mr Greet’s having put the respondent Council to much greater trouble and expense than one would normally expect in a relatively straightforward appeal. I do not think this is a case in which compensation on account of costs should exceed the amount of a conservative estimate of the sum standard costs might be assessed at. In all the circumstances, I think Mr Greet should be ordered to pay as compensation, under s.45(3)(c), the sum of $32,000 to the applicant Council. This would reflect a rough equivalence to the effect of assessment on the Council’s bill in the Court of Appeal, as described by Mr Abaza.
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