Jewry v. Maroochy Shire Council & Anor
[2008] QPEC 49
•7 August 2008
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Jewry v Maroochy Shire Council & Anor [2008] QPEC 49
PARTIES:
ROBERT DOUGLAS JEWRY
Applicant
V
MAROOCHY SHIRE COUNCIL
First Respondent
And
JUNIPER DEVELOPMENT CORPORATION PTY LTD
Second Respondent
FILE NO/S:
2843/2004
DIVISION:
Planning and Environment
PROCEEDING:
Application for assessment of costs
ORIGINATING COURT:
Planning and Environment Court of Queensland
DELIVERED ON:
7 August 2008
DELIVERED AT:
Brisbane
HEARING DATE:
26 June 2008
JUDGE:
Alan Wilson SC, DCJ
ORDER:
Direct that paragraph 9 of the Order of his Honour the Senior Judge of 22 November 2007 be vacated
CATCHWORDS:
PRACTICE AND PROCEDURE – ILLNESS OF PARTY – DELAY IN IMPLEMENTING ORDER – where one party ill – where order concerning costs postponed for that reason – whether postponement should continue
Uniform Civil Procedure Rules, Chapter 17A Part 3
Practice Direction No. 5 of 2007Cases considered:
Jewry v Maroochy Shire Council & Anor [2005] QPELR 665
Juniper Development Corporation Pty Ltd v Jewry [2006] QPELR 202
Thomson v Smith [2005] QCA 446
Jelicic v Salter & Anor [2001] QSC 068
Pratt v Dickson [2000] QSC 314COUNSEL:
S E Mosch, solicitor, for second respondent
Mr R D Jewry in personSOLICITORS:
MacDonnells
Mr R D Jewry unrepresented
This proceeding now concerns the assessment of costs which the applicant Mr Jewry was ordered to pay the second respondent Juniper Development Corporation in 2005. More immediately, his Honour Senior Judge Skoien made another order over two years later (on 22 November 2007) appointing a named person to assess those costs; directing Mr Jewry and Juniper to attend and participate in the assessment; giving directions about certain procedural aspects of it; but, then, directing that the costs assessor take no step pursuant to his appointment until further order of the Court, his Honour then adjourning the application for over six months, until 2 June 2008.
The reason for the adjournment was Mr Jewry’s ill health. Before addressing that issue, which is still very much alive, it is relevant to touch upon some other aspects of the history of the matter. The costs question has its genesis in proceedings Mr Jewry brought in 2004[1] in which he sought declarations about the lawfulness of work being carried out by Juniper to construct a multi-storey building at Mooloolaba. Mr Jewry was the owner of a residential unit in a nearby building. His Honour the Senior Judge decided that matter against Mr Jewry in Reasons delivered on 6 May 2005[2].
[1]2843 of 2004.
[2]Jewry v Maroochy Shire Council & Anor [2005] QPELR 665.
In the course of his decision the Senior Judge made a number of findings adverse to Mr Jewry including, in particular, that he had undertaken those proceedings not as a concerned citizen but, rather, for the benefit of those who had a financial interest in what his Honour termed ‘… the Jewry building’ – ie, one of Juniper’s commercial competitors. It was found that the matters Mr Jewry raised were ‘… technical in the extreme’, and without merit[3]; and, that he ‘… brought the proceedings as the undisclosed agent of a commercial competitor of Juniper’[4].
[3]Supra, paras [116]-[118].
[4]Juniper Development Corporation Pty Ltd v Jewry [2006] QPELR 202 at para [16].
Juniper then commenced separate proceedings[5] seeking the costs of that earlier action and its application was heard by the Senior Judge on 26 September 2005. In Reasons delivered on 6 October 2005 he found that from an early stage Mr Jewry’s action had been ‘… overwhelmingly likely to fail’[6] and that the continuance of the proceedings after 17 December 2004 was ‘frivolous or vexatious’ within the meaning of that phrase as it is used in s 4.1.23(2)(b) of the Integrated Planning Act 1997. Mr Jewry was then ordered to pay Juniper’s costs of and incidental to the earlier proceedings on and after 17 December ‘… to be assessed or agreed on the standard basis’[7].
[5]2078 of 2005.
[6]Juniper Development Corporation Pty Ltd v Jewry (supra), at para [22].
[7] For unexplained reasons various different file numbers appear throughout these proceedings. In particular, the Reasons of his Honour Senior Judge Skoien in Jewry v Maroochy Shire Council & Anor [2005] QPELR 665 wrongly refer to the file leading to that judgment as 2933 of 2004 (when the Court file bearing that number is unrelated to any of the parties here) and that error was perpetuated in his Honour’s later judgment in Juniper Development Corporation Pty Ltd v Jewry [2006] QPELR 202. That second proceeding was in fact brought in file number 2078 of 2005. The present proceedings concerning assessment of costs are in file number 2843 of 2004 which I take to be the correct number of Mr Jewry’s original action which led to the judgment in [2005] QPELR 665. Nothing, in any event, turns upon the mistaken references to incorrect Court numbers and it is plain what proceedings were intended.
Between 2005 and 2007 the procedure for assessment of costs changed[8]. On 8 October 2007 Juniper applied to the Senior Judge for the appointment of a Mr Moffatt as a costs assessor and his Honour subsequently made the orders mentioned earlier. He also, of course, postponed the operation of that order until at least 2 June 2008 because of medical evidence showing Mr Jewry had suffered a stroke on 6 March 2007 (after coronary-artery bypass surgery four days earlier) which resulted in a right hemi paresis, expressive dysphasia and mental impairment. Submissions were made to the Senior Judge, which were apparently persuasive, that following his stroke his speech had only partially returned; that he was unable to write; and, that it was very difficult for him to concentrate and understand this matter.
[8]Practice Direction No. 5 of 2007; Uniform Civil Procedure Rules, Chapter 17A Part 6.
Nevertheless, Juniper now wishes to proceed with the assessment. The matter did not come back before the Court on 2 June but, rather, on 11 June when Mrs Jewry appeared before his Honour Judge Rackemann on her husband’s behalf and, as I was told without demur, sought an additional postponement of 12 months because of her husband’s continuing medical problems. I was also told that his Honour adjourned the matter to 26 June to allow Mr Jewry the opportunity to obtain further medical evidence specifically addressing his capacity to deal with an assessment of costs, and suggested to Mrs Jewry that if her husband’s condition persisted they should return with a plan as to how the matter could be taken forward.
At the hearing on 26 June I was provided with a report from a GP, Dr Tan, of 30 May 2008 advising that as a result of the medical events mentioned earlier Mr Jewry ‘… is not capable to represent himself in court’. Subsequently, Mrs Jewry sent me another copy of a letter (which had in fact been sent earlier to his Honour Judge Rackemann and which appeared on the Court file) enclosing a report from Dr Fialla, a consultant in rehabilitation medicine who has been treating Mr Jewry since his stroke in March 2007. That doctor says the stroke has left him with significant language and communication problems which are worse during times of fatigue and stress; that, nevertheless, he continues to improve and this improvement can take up to two years; and, that he may find representing himself in the long-running Court case difficult due to his language problems following the stroke. The doctor then recommends that the hearing be delayed for a further six months ‘… in order to give Mr Jewry the best chance of language recovery and thereby enable him to represent himself adequately in a Court setting’.
Juniper also filed, however, an affidavit of a retired solicitor, Mr Munro, sworn on 26 May 2008 in which he gives hearsay evidence of having been told by unnamed persons that Mr Jewry’s speech has returned with sufficient clarity to allow him to speak socially and at meetings at public events; that his concentration has also returned, so that he appears to have no difficulty understanding things; and, that his health had indeed sufficiently recovered such that he would have no difficulty in dealing with the costs assessment in a rational manner. Little credence can, I think, be given to this hearsay evidence but more weight should attach to Mr Munro’s own observations about occasions, commencing in October 2007, when he observed Mr Jewry apparently walking and moving quite well, driving a motor vehicle, and ‘… freely conversing with people he knew’. On balance, the evidence indicates that Mr Jewry’s symptoms may not at times be so bad as the medical reports imply or, at least, that they fluctuate.
During his appearance before me Mr Jewry (accompanied by his wife) moved with some hesitation, and spoke in a way best described as tentative. That said, in the course of the short hearing he evinced every sign of understanding the nature of the proceedings and, indeed, was obviously concerned to ensure that I had Dr Fialla’s report. I also invited Mrs Jewry to speak, not out of any concern that Mr Jewry was not apparently capable of addressing the Court on his own behalf but, rather, because she appeared keen to do so. She said she and her husband were ‘representing ourselves’ because her husband had not been able to work.
The question to be determined is whether or not the order of 22 November 2007 should now be allowed to come into operation, or further postponed. It is appropriate, I think, to consider the question by reference to the nature of the proceedings; the tests the court applies to determine the capacity of a party to proceedings before it; and, the evidence about Mr Jewry’s present health.
Those aspects have to be considered in the context of the history of this matter, some of which has already been related. It is also relevant that none of the decisions of his Honour the Senior Judge have been the subject of any appeal; and that Juniper, which therefore has an unassailed right to costs in the sum eventually assessed, has not pursued them with undue haste. Mr Jewry has had since November last year to consider his position. Save for the statement his wife made in open Court before me, there is no evidence about his or their financial circumstances. There is, amongst the papers he and his wife delivered to the Court a copy of a newspaper article of 14 March 2007 which refers to him as a former Maroochy Shire Council Councillor and ‘… central Sunshine Coast property developer’. He appeared via solicitors and with counsel in the original hearing before his Honour the Senior Judge, and was similarly represented in the later application for the costs order.
Under the Queensland Uniform Civil Procedure Rules, Chapter 17A Part 3, the appointed costs assessor is to decide the procedure to be followed on the assessment[9] but, as rules in Part 3 Division 3 also show[10], the assessor has a wide discretion when it comes to appropriate procedures. That discretion was confirmed in the order of his Honour the Senior Judge of 22 November 2007 which provides in paragraph 4 that the costs assessor ‘… will determine the procedure to be followed for the assessment’.
[9]r 720.
[10]eg, rr 714, 715, 720 and 721.
While the process of costs assessment is different from the usual proceedings in a courtroom, it is undeniable that it is one which requires a degree of concentration (and, often, over a long period of time). That is particularly so here, it might be thought, when the costs statement already delivered on Juniper’s behalf runs to some 82 pages, plus a large number of attachments, and claims costs of about $420,000[11].
[11]Affidavit Mr S D Mosch filed 21 November 2007, exhibit SDM3.
Under Chapter 3 Part 4 of the UCPR, r 96 a ‘defendant’ (and that is a fair description of Mr Jewry’s position in respect of the proposed costs assessment) may not have proceedings continued against him if he is under a legal incapacity, other than through the auspices of a litigation guardian. The dictionary in Schedule 4 of those Rules, read with the one in Schedule 2 of the Supreme Court of Queensland Act 1991, defines a person under a legal incapacity as someone who is not capable of making the decisions required of a litigant for conducting proceedings[12]. Dr Tan, as noted earlier, concluded that Mr Jewry ‘… is not capable to represent himself in Court’ at the present time (although, in an earlier report dated 19 November 2007 the doctor said only that Mr Jewry ‘… has problems with concentration and needs extra time for the perusal of any documents’). Dr Fialla says that he may find representing himself ‘difficult’ and a further delay of six months would enable him to ‘… represent himself adequately in a Court setting’.
[12]See Thomson v Smith [2005] QCA 446, per Muir JA at [42].
If Mr Jewry was legally represented there could, in light of this medical evidence, be little doubt that he would not require a litigation guardian, there being nothing to suggest that he is not capable of making the decisions required of him to instruct a lawyer to appear and, in effect, contest the bill of costs. He may, the evidence also suggests, take a little longer to comprehend issues and give appropriate instructions but that could be accommodated by his legal representative. A litigation guardian would be superfluous. The appointment of a non-lawyer as litigation guardian by a self-represented party would carry its own problems of course but, again, they would not be insurmountable.
In any event, I am not persuaded it is necessary, or a step which must be undertaken before Juniper can proceed. Nor is it apparent that this is a case in which the court might interfere and appoint a guardian (UCPR, r 95(2)). While the process of assessment cannot be described as straightforward, his own medical evidence falls short of persuading me it is beyond Mr Jewry. The evidence does not suggest any loss of intellectual capacity, or ability to make decisions. Assessment of costs is not a trial in a courtroom; he has had the opportunity to consider the costs statement since November last year, when a copy was filed in the court; there is no evidence pointing to an explanation why he is now unrepresented (when he has been in the past); and, for reasons already set out, I think he is capable of instructing a lawyer if he wishes. The assessor also has sufficient discretion to accommodate, if necessary, his need for more time than may usually be allowed to parties within the assessment process.
When it is appreciated, then, that this is not a case requiring the imposition of a litigation guardian[13], either by the Court or otherwise, before the applicant can properly proceed the only remaining question concerns the efficacy, and the justice, of a further adjournment. The matter has already been the subject of long delays and more time has not been shown to necessarily improve the prospects of it being finalised; the difficulties which confront Mr Jewry are not so serious as to warrant the imposition of further steps, concerning those difficulties, before the matter can proceed; and, they may in any event be appropriately accommodated – eg, by written submissions and a minimum of oral argument – in the assessment process.
[13]See, eg, Jelicic v Salter & Anor [2001] QSC 068 per Mackenzie J at [13]; and, Pratt v Dickson [2000] QSC 314 (Mullins J, Brisbane 18 September 2000, 4120/2000).
For these reasons, I direct that the order in paragraph 9 of his Honour the Senior Judge of 22 November 2007 be vacated.
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