Juniper Development Corporation Pty Ltd v Jewry

[2005] QPEC 97

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Juniper Development Corporation Pty Ltd v Jewry [2005] QPEC 097

PARTIES:

JUNIPER DEVELOPMENT CORPORATION PTY LTD
ACN 005 248 635
Applicant
v.
ROBERT DOUGLAS JEWRY
Respondent

FILE NO/S:

2078 of 2005

DIVISION:

Planning and Environment Court

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

6 October 2005

DELIVERED AT:

Brisbane

HEARING DATE:

26 September 2005

JUDGE:

Senior Judge Skoien

ORDER:

Respondent to pay costs of applicant in proceedings BD2933 of 2004 incurred on or after 17 December 2004.

CATCHWORDS:

Section 4.1.23 of IPA; frivolous or vexatious; instituted to delay or obstruct

COUNSEL:

GA Thompson SC with D Clothier for applicant

WL Cochrane for respondent

SOLICITORS:

Suthers Taylor for applicant

MacDonnells for respondent

1. This is an application by Juniper for an order that Mr Jewry pay all (or part) of the costs incurred by Juniper in application BD 2933 of 2004 (“the proceedings”), which was determined on 6 May 2005 adversely to Mr Jewry.  No appeal was brought against that decision and the time limited for the bringing of an appeal has expired.

1. In the proceedings Mr Jewry sought declarations about the lawfulness of work being carried out by Juniper to construct a multi-storey building (“Oceans”) at Mooloolaba, together with a consequential application for an injunction to stop the construction.  Mr Jewry was the owner of a residential unit in a multi-storey building (the “Jewry building”) to the immediate rear of the Juniper building.

1. The application for costs is brought under the following provisions of the Integrated Planning Act 1997 (“IPA”):-

“4.1.23 Costs

(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;

…

(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 the court’s procedural requirements;

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

…

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

1. Three paragraphs of my reasons for judgment in the proceedings are of particular relevance.  They are:-

“[116] The status of Mr Jewry has not been clearly established.  While a concerned citizen has the right to bring proceedings such as these, he did not give evidence to qualify himself in the category.  The unit which he owns in the Jewry building has its view of the sea substantially blocked by the Oceans building but that would doubtless have occurred no matter what building was erected on the site.  None of the alterations to the Oceans building have affected his view in any way which was demonstrated to me.  On the evidence it is impossible to avoid the conclusion that Mr Jewry has undertaken these proceedings, not as a concerned citizen, but for the benefit of those who have a financial interest in the Jewry building, that is, Juniper’s commercial competitors.

[117] The proceedings were not commenced until 10 August 2004, despite the fact that Mr Jewry had on 21 May 2004 written to the Council alleging that the MCU Approval had lapsed.  In the interim Juniper had expended considerable effort and expense on the development.  Then it was not until late January 2005 that he first raised the issues of variation between the original approval and subsequent approvals despite the fact that a letter he wrote to the Council on 14 April 2004 and complained of variations between the original approval and the amended approval.  It can fairly be said that, as the litigation proceeded, more and more issues were raised.  The major issue of the validity of the Building Approval was raised in late January 2005 although it is clear he knew the Approval had been granted in mid August 2004 and one can infer he took the trouble to investigate it.

[118] The matters raised by Mr Jewry are technical in the extreme.  Had he succeeded in these proceedings the obvious consequence would be an application by Juniper to the Council to erect the building as currently planned. As the current plans are consistent with surrounding development (including the Jewry building) and as on the evidence of Mr Brown and on Mr Schomburgk, which I accept, (and even, broadly, on the evidence of Mr Ryter) there are no unacceptable town planning impacts from such a development it is highly probable that the application would be successful. The only practical result, therefore, would be waste of a lot of time and an immense amount of money.  And, I am prepared to infer as a commercial reality, the rights of third parties would suffer.”

1. The principal ground argued by Mr Thompson of Senior Counsel, who led for Juniper, was (under s.4.1.23 (2) (b)), that the proceeding (or part of it) was frivolous or vexatious.

Frivolous or Vexatious

1. In Mudie v Gainriver Pty Ltd (No.2) [2003] 2 Qd.R. 271 at [35]. McMurdo P. and Atkinson J said: -

“The words “frivolous or vexatious’ are not defined in the Act and should be given their ordinary meaning unfettered by their meaning in the very different context of striking out or staying proceedings for an abuse of process. By the time an application for costs is made, the court knows the issues which have been litigated whilst in interlocutory applications, the court must to some extent speculate and must necessarily be cautious to ensure a deserving claimant is not unjustly deprived of the opportunity of a trial of the action”.

1. Thus their Honours expressly dismiss, as the appropriate text in an application for costs after completed litigation, a test of the type laid down in cases such as General Steel Industries Inc v Commissions for Railways (NSW), (1964) 112 CLR 125 that to qualify as ‘frivolous or vexatious” the claim must be a “manifestly groundless.”

1. By contrast, their Honours said at [37]: -

“Whether proceedings are vexatious or oppressive will turn on the circumstances of the case and will include public policy considerations and the interests of justice”.

1. At [36] their Honours say: -

“Unquestionably, something much more than lack of success needs to be shown before a party’s proceedings are frivolous or vexatious”.

and in [38]-[41] they consider the background to the proceedings and the extra-curial activities of the respondent to the application for costs as well as the respondent’s conduct of the proceedings and the ultimate result, in reaching a conclusion that the respondent’s conduct of the proceedings was, in part at least, frivolous or vexatious, and held that upon such a finding being made there arises an unfettered discretion to award costs.

1. In the same case Williams J.A., who agreed in the result, at [59] and [62] points out that “vexatious” is not a mere synonym for “frivolous”, but adds the gloss that the conduct be “productive of serious and unjustified trouble and harassment”.  “Frivolous”, on the other hand, concentrates on the paltriness and lack of reasonable grounds of the cause of action or defence.  I am not however aware of an authority in which this distinction proved to be critical.  It seems to be that if proceedings are held to be frivolous, their prosecution is seen also to be vexatious.

1. So my task is to consider the circumstances of the case, including public policy considerations and the interests of justice.  In doing that I must consider the background to the proceedings and the extra-curial activities of Mr Jewry as well as his conduct of the proceedings and the ultimate result.  The three paragraphs of my reasons for judgment (para [43] above) could probably be described as a summary of most of the salient points but some more detailed analysis is called for.

Public Policy and the Interests of Justice

1. The law of Queensland has long permitted concerned citizens, private and corporate, to make submissions to the local government about applications for development approval and in the event of an unfavourable decision by the local government to bring an appeal to this court (IPA s.4.1.28). This was not such a case as it was not an appeal (Mr Jewry had not made a “properly made submission” – see definition of “submitter” in schedule 10 to IPA). It was an application and s.4.1.21(1) provides that: -

“(1)Any person may bring proceedings in a court for a declaration about –

(c)       the lawfulness of land use or development”.

1. Section 4.1.23(1) makes it clear that those who bring proceedings do so at their own cost and do not risk incurring the costs of other parties in the event of failure unless their conduct falls within one or more of the categories listed in subsections (2)–(6).  And in contrast to subsections (3)-(6) in which the making of a costs order is mandated, for conduct in the nine categories listed in subsection (2), the making of a costs order is discretionary.

1. As the majority judgment in Mudie at [34] points out, subsection (1) is designed to ensure that citizens are not discouraged from appealing or applying to the Planning & Environment Court because of fear that a crippling costs order might be made against them.  The provision also recognises the public interest character of some applications to this Court.  Their Honours recognise that decisions of this Court have demonstrated an understandable judicial reluctance to find proceedings brought by citizens to be frivolous or vexatious.  That having been said it is obvious that subsection (2) provides the discretion to award costs and as the decision in Mudie makes obvious, it should be exercised in appropriate cases.  It is just as important in promoting proper public policy and the interests of justice that clear examples of frivolous or vexatious litigation be met with a costs order so as to discourage such behaviour, as it is that litigation which falls short of that description (even if unsuccessful) be permitted.

Background to the Proceedings

1. The obvious fact is that Mr Jewry, as an owner of a unit in the Jewry building, was directly affected by the Oceans development, but as pointed out in para [116] of my reasons for judgment, there was no evidence that demonstrated that the Oceans development adversely affected him personally in any way in which he would not have been affected by any likely lawful development of the Oceans site.  So on the evidence he, personally, had no valid complaint.  However that would not have prevented him, as a concerned citizen, from raising any proper argument that the Oceans development was unlawful and litigating it.

1. At para [116] I made the finding that Mr Jewry was not a concerned citizen, but acted for the benefit of Juniper’s commercial competitor.  That finding of fact was not challenged on appeal, nor was any affidavit or oral evidence put before me on this application to have me modify that finding.  So it stands.

Conduct of the Proceedings

1. Thus, Mr Jewry brought the proceedings as the undisclosed agent of a commercial competitor of Juniper.  I see nothing inherently wrong in that, provided the commercial competitor does not act frivolously or vexatiously or merely to delay or obstruct.  If there is a valid point to argue a commercial competitor has the same rights as any concerned citizen to bring proceedings but naturally the fact of commercial competition tends to make one look more closely at the validity of the point and the true motivation for the proceedings than would otherwise be the case.  And if the commercial competitor chooses to bring proceedings by an undisclosed agent that scrutiny is likely to be more intense.

1. Having considered Mr Jewry’s status, I proceeded in para [117] to describe, in broad terms, his conduct of the proceedings.  Those proceedings can be divided into four groups, first whether the original MCU approval had lapsed, second whether the Amended Approval given by the Council was valid, third whether the Building Approval given by the Council was valid, and fourth, my general discretion.

1. On the first point, my finding was that the MCU approval did not lapse as contended for on behalf of Mr Jewry (para [68]). But I then decided (accepting a submission put forward by the Council) that the MCU Approval required that the building be completed by 29 May 2004, which of course it had not. To overcome that it was necessary for Juniper to rely on s.6.5.1 of IPA, a new provision which commenced on 17 December 2004, which extended the currency period of the MCU Approval until 30 March 2006.

1. In reaching that conclusion I set out at para [75] the facts which I found which were necessary to make the MCU Approval amenable to s.6.5.1.  Each of these facts was, in my opinion, clearly established by the evidence, indeed by uncontradicted evidence.  It follows that as from 17 December 2004 the point about the lapse of the MCU Approval was patently to be decided in Juniper’s favour.

1. The second and third points can be discussed together.  On the relevant test to be applied (as to which see para [97] of my reasons), the evidence was all one way, in favour of Juniper.  Mr Ryter, the consultant town planner called by Mr Jewry, was not prepared to take the contrary view and, at least tacitly, conceded the point.

1. The conclusion I reach, therefore, is that at least from 17 December 2004 onward Mr Jewry’s proceedings were overwhelmingly likely to fail.  Yet he persevered, embarking on a six day hearing and even attempting (unsuccessfully) to introduce at the eleventh hour yet another alternative argument.

1. It was, it seemed to me, to be common ground that s.4.1.23(2)(b) is not restricted to the institution of the proceedings and that the maintenance of proceedings could be found to be frivolous or vexatious.  To my mind that is made clear by the fact that para (b) permits an adverse order for costs to be made if the Court considers that only part of the proceedings was frivolous or vexatious.  The word “part” can relate to the temporal course of the proceedings, not just to the different issues which constitute them.  So if, in the course of valid proceedings, an event occurs which makes their continuance frivolous or vexatious the provision can apply to costs incurred after that point.  In my opinion it was frivolous for Mr Jewry to continue the proceedings after 17 December 2004.  His chances of success were paltry and lacked reasonable grounds.  It was also vexatious in that it produced serious and unjustified trouble and harassment.

1. This conclusion is emphasised when one considers that, had Mr Jewry succeeded in his very technical arguments, it would have been necessary to consider whether I should exercise my discretion in favour of making the declaration and issuing the injunction. At para [120] of my reasons I indicated that I would not have done so for the very compelling reasons set out in para [118].

Proceedings Instituted to Delay or Obstruct

1. Although on the findings I made about the status of Mr Jewry, the history of the litigation and its likely result one might harbour the suspicion that this ground has also been made out, I am not prepared to act on it.  Until 17 December 2004 it was the fact, as I found, that the MCU Approval had in fact lapsed.  Had IPA not been amended on that date by the addition of s.6.5.1 the only way the development of Oceans could have been saved would have been by appealing to me for the exercise of my discretion to refuse the orders sought and an application to the Council.  That could have been a difficult task.  What eased Juniper’s path was undoubtedly the effect of s.6.5.1.  I could not be satisfied that a commercial competitor had no valid concern to air an argument about the legality of a building being constructed even though its MCU approval had lapsed.

1. It was submitted that it was common knowledge that s.6.5.1 was to commence on 17 December 2004 and yet Mr Jewry, up to that date, persevered with the proceedings.  I do not regard that as a critical point.  A statute has no effect until it commences and there can be no guarantee that it will commence until that actually occurs.

Other Grounds

1. The submissions on behalf of Juniper raise arguments based on paras (d), (e), (f) and (i) but did so faintly and it is not necessary to deal with them.  In any event I would not be disposed to make any order for costs incurred before 17 December 2004.

Conclusion

1. I order the respondent to pay the costs of the applicant of and incidental to proceedings numbered BD2933 of 2004 incurred on and after 17 December 2004 to be assessed or agreed on the standard basis.