Hervey Bay City Council v Stathopoulis

[2000] QPEC 67

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:	Hervey Bay City Council  and George Stathopoulis [2000] QPE 067
PARTIES:	HERVEY BAY CITY COUNCIL (Appellant) GEORGE STATHOPOULIS (Respondent)
FILE NO/S:	No 2905 of 1999
DIVISION:	Planning and Environment Court
PROCEEDING:
ORIGINATING COURT:	Hervey Bay
DELIVERED ON:	1 March 2000
DELIVERED AT:	Brisbane
HEARING DATE:
JUDGE:	Quirk DCJ
ORDER:
CATCHWORDS:
COUNSEL:
SOLICITORS:

1. This matter has been disposed of but I have been asked by the applicant Local Authority’s legal representative to provide short written reasons for declining to make an order for costs in his client’s favour.  I am happy to do this.

1. These proceedings have been protracted.  The applicant sought declaratory and injunctive relief against the respondent in respect of a failure to comply with conditions of approval of a backpacker accommodation facility at Hervey Bay.  Findings in favour of the Council were made and a restraining order issued.

1. Throughout the proceedings the respondent’s position was essentially that circumstances beyond his control prevented his finishing the necessary works although, as it was conceded, the facility continued to operate at all relevant times. 

1. After a number of adjournments in response to the pleas by Mr Stathopoulis for time to complete the necessary works, it was considered that a suspended sentence of imprisonment for contempt was called for.  This seemed to have the desired effect and the relevant works were done. 

1. It was accepted that the imprisonment order should be discharged but costs were sought.  Had my discretion to do so been unfettered I would have had little hesitation in making an appropriate order, in favour of the Council for costs.  But this is not the position.  The Court’s power to make such an order is governed by s.4.1.23 which relevantly provides:-

“4.1.23(1)  Each party to a proceeding in the court must bear the party’s own costs for the proceeding.

(2)    However, the court may order costs for the proceeding including allowances to witnesses attending for giving evidence at the  proceeding) as it considers appropriate in the following circumstances –

(a)the court considers the proceeding was instituted merely to delay or obstruct;  

(b)the court considers the proceeding (or part of the proceeding) to have been frivolous or vexatious;

(c)a party has not been given reasonable notice of intention to apply for an adjournment of the proceeding;

(d)a party has incurred costs because the party is required to apply for an adjournment because of the conduct of another party;

(e)a party has incurred costs because another party  has defaulted in procedural requirements;

(f)without limiting paragraph (d), a party has incurred costs because another party has introduced (or sought to introduce) new material;

(g)if the proceeding is an appeal against a decision on a development application and the appellant did not, in responding to an information request, give all the information reasonably requested before the decision was made;

(h)the court considers an assessment manager, a referral agency or a local government should have taken an active part in a proceeding and it did not do so;

(i)         an applicant, submitter, referral agency, assessment manager or local government does not properly discharge its responsibilities in the proceedings”

1. It is clear that these proceedings are governed by that section.  Appreciating the difficulties which he faced the Council’s solicitor could really only point to sub-paragraph (e) and suggest that there had been, in this matter, a “default in procedural requirements” by Mr Stathopoulis. 

1. I am afraid I cannot accept this argument.  The relief sought and granted was substantive as was the finding that the respondent was in contempt and the consequential order which dealt with the punishment proposed. While the attitude of Mr Stathopoulis certainly caused trouble for all involved in the matter, his disrespect was for requirements that were not proceedural within the meaning of  s.4.1.23

1. If the legislation wishes to protect moneys necessarily expended in proceedings of this kind specific provision for the making of orders for costs in favour of a Local Authority would be required.