Hall v Nanango Shire Council (No 2)

[2005] QPEC 105

PLANNING & ENVIRONMENT COURT

OF QUEENSLAND

CITATION:	Hall & Ors v. Nanango Shire Council & Ors (No. 2) [2005] QPEC 105
PARTIES:	KATHRYN A HALL (AKA CRAWFORD) GLORIA FRANCES ANDERSON BEVERLEY JOY ANDERSON RAE BROUGHAM BERNARD WILLIAM O’CONNELL ROSLYN ANNE O’CONNELL JAMES BARCLAY AND LYNETTE BARCLAY

Appellants

(Respondents)

v

NANANGO SHIRE COUNCIL

Respondent

And

RONALD THOMAS CULLEN AND

VICKI KATHLEEN CULLEN

Co-Respondents

(Applicants)

And

STATE OF QUEENSLAND

Co-Respondent by Election

FILE NO/S:	No. BD 238 of 2005
DIVISION:
PROCEEDING:	Application for Costs
ORIGINATING  COURT:	Planning and Environment Court
DELIVERED ON:	28 October 2005
DELIVERED AT:	Brisbane
HEARING DATE:	20 September 2005
JUDGE:	McLauchlan QC DCJ
ORDER:	Appellants to pay one half of costs of co-respondents in calling expert witnesses in the appeal.
CATCHWORDS:	Section 4.1.23(2)(b) Integrated Planning Act 1997; whether appeal frivolous or vexatious.
COUNSEL:	Mr Everson for the Applicants Mr Houston for the Respondents
SOLICITORS:	Condon Charles for the Applicants

1. On 22 September, 2004, the respondent approved a development application by the co-respondents for a material change of use, consisting of a substantial expansion of a feedlot known as the “Nooroomba Feed Lot” on Maidenwell-Bunya Mountains Road Nanango. An appeal against this decision was dismissed by this court on 19 May,2005. The appeal involved a number of issues, including impacts of the proposed development with respect to traffic odour and water supply. The co- respondents, relying on s. 4.1.23(2)(b) of the Integrated Planning Act 1997, now apply for costs against the appellants on these issues, on the standard basis, including the obtaining of reports from the relevant experts, and securing their attendance at the hearing of the appeal.

2. The Department of Main Roads and the Department of Primary Industries were concurrence agencies with respect to the co-respondents’ development application, and the application was approved by the respondent subject to various conditions, including conditions imposed by those 2 departments.

3. Orders were made by Wilson DCJ on 28 January 2005 and 11 March 2005 with respect to various matters, including the exchange of experts’ reports. By the second order, reports were to be exchanged on or before 24 March 2005, and the matter was listed for hearing on and from 18 April 2005. In fact, the co-respondents’ reports, relating to the above issues were provided to the appellants on 14 April, a few days before the hearing of the appeal began. In my opinion, the contents of those reports were such as to alert the appellants that the very general grounds upon which they relied with respect to those issues could not reasonably be sustained in the appeal.

4. The co-respondents’ solicitors asked the appellants on 7 March 2005, whether it was the intention of the appellants to exchange experts reports on that day. The response, on the same date, was in the negative, as the appellants would be relying on “research and long term local knowledge for the appeal”. This evoked a further response from the solicitors that if the appellants proceeded with the appeal, an application would be made for costs under section 4.1.23.

5. Mrs Hall, in an affidavit filed in the application deposes that following receipt of the reports they were reviewed by her and the other appellants in preparation for the hearing. A Mr Teske, a local resident, had earlier agreed to represent the appellants in the appeal, and a further meeting with him took place on 15 April 2005. Arrangements were made for a further meeting on Sunday, 17 April, but at this meeting a telephone call was received from Mr Teske, withdrawing his offer to represent the appellants at the hearing. Mr Graham Anderson then agreed to appear in place of Mr Teske.

6. In the final paragraph of her affidavit, Mrs Hall states that:-

7. “Prior to the commencement of the hearing, I, and the other appellants, had not realised that the fact that the appeal proceeded as a “hearing anew” meant that our criticisms of Council’s assessment and approval of the co-respondents’ application, were largely irrelevant, in the context of the further reports and assessments that were before the Court (and which had been served on us on 14 and 17 April 2005).”

8. The experts’ reports upon which the co-respondents relied heavily in the appeal were obtained in the early part of April, the last of them being dated 12 April. They were thus obtained and supplied to the appellants well outside the time limited by the court order previously referred to.

9. The provision of the Integrated Planning Act upon which the applicant for costs relies enables the court to make an order for costs where the court - “considers the proceeding (or part of the proceeding) to have been frivolous or vexatious.” Various cases have referred to the definition of these words in the Macquarie Dictionary, and the Shorter Oxford Dictionary. There is, in my view, no necessary connotation of deliberate conduct in these expressions. Rather it is a question of whether the proceeding or part of it, including the conduct thereof by the relevant party, should be seen upon an objective examination to have been frivolous or vexatious, that is, characterised by a lack of seriousness or sense, or vexing or annoying. That would normally involve conclusions about the proceeding itself, and about the conduct of the party concerned in relation to the proceeding. As already noted, the appellants were not legally represented in the proceedings, and they did not correctly appreciate certain matters. These included the significance of the appeal not being an appeal stricto sensu, but rather a “hearing anew”, the significance of the respondent’s planning scheme being a transitional scheme and the weight that might be accorded to the draft IPA compliant scheme, and the meaning and effect of s.4.4(5A) of the Local Government (Planning and Environment) Act. Their conduct was therefore less blameworthy than would have been the case had they been legally represented, but it appears to me that the principal thrust of the provision is to compensate an innocent party for costs pointlessly incurred, rather than to mark the court’s disapproval of the conduct of the proceeding by the other party. I think, therefore, that the ignorance of the appellants in relation to the matters referred to above cannot be prayed in aid of a defence to a costs order.

10. The court has a discretion to order costs under the section. I do not consider that the appeal could be objectively characterised as lacking seriousness or sense prior to the delivery to the appellants of the experts’ reports which have been previously referred to. The confusion of the appellants as to the various matters of law which have been mentioned is in my view, irrelevant. The late delivery of the reports by the co- respondents is a matter which weighs against them. Had they been delivered in a timely manner, the appellants may have proceeded in a more sensible fashion. I am not prepared to order any costs with respect to the obtaining and preparation of the reports. I will, however order the appellants to pay one half of the costs incurred by the co-respondents in calling the relevant expert witnesses to give evidence in the appeal. These are, as I understand it, Mr Beard, Mr Ormerod, Mr Hovey and Mr Bristow.