Krajniw v Brisbane City Council
[2010] QPEC 128
•6 December 2010
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Krajniw v Brisbane City Council [2010] QPEC 128
PARTIES:
TONY KRAJNIW
(applicant)V
BRISBANE CITY COUNCIL
(first respondent)And
DEPARTMENT OF ENVIRONMENT AND RESOURCE MANAGEMENT (PREVIOUSLY ENVIRONMENTAL PROTECTION AGENCY AND DEPARTMENT OF NATURAL RESOURCES AND WATER)
(second and third respondents)And
DEPARTMENT OF INFRASTRUCTURE AND PLANNING
(fourth respondent)FILE NO/S:
3672 of 2009 and 3267 of 2009
DIVISION:
Planning and Environment Court
PROCEEDING:
Application for costs
ORIGINATING COURT:
Brisbane
DELIVERED ON:
6 December 2010
DELIVERED AT:
Brisbane
HEARING DATE:
19 October 2010
JUDGE:
Rackemann DCJ
ORDER:
The applicant is to pay the first respondent’s costs of and incidental to the proceeding up to and including 8 March 2010, together with its costs thereafter limited to the costs of a formal appearance to receive judgment and the costs of this application for costs.
CATCHWORDS:
PLANNING AND ENVIRONMENT – Application for costs – whether frivolous or vexatious – whether proceeding instituted merely to delay or obstruct
COUNSEL:
Mr Krajniw (self represented)
Mr Trotter for the first respondent (applicant)SOLICITORS:
Brisbane City Legal Practice for the first respondent (applicant)
The first respondent (the Council) seeks its costs of these proceedings from the applicant, Mr Krajniw, who unsuccessfully sought orders to prevent the Council from proceeding with Stage 2 of a bikeway/pedestrian path through the Minnippi Parklands at Cannon Hill.
That Mr Krajniw was ultimately unsuccessful does not, of itself, mean, that he should meet the Council’s costs. The primary rule as to costs, in this court, is that each party bears their own (s 457(1) of the Sustainable Planning Act 2009). That primary rule serves an important public interest, but there are limits to the statutory protection from adverse costs orders.
Section 457(2) of the SPA sets out circumstances in which this court has a discretion to make a costs order. The respondent relies upon sub-sections (a) and/or (b) which provide for circumstances where:
“(a)the court considers the proceeding was instituted, or continued by the party bringing the proceeding, primarily to delay or obstruct;
(b)the court considered the proceeding, or part of the proceeding, to have been frivolous or vexatious.”
Those provisions focus upon a party’s conduct in relation to the subject proceeding or proceedings. As was submitted on behalf of the Council, however, Mr Krajniw’s conduct in other proceedings may also be relevant to the extent that it sheds light on the institution and pursuit of these proceedings.
Mr Krajniw is a resident of a caravan park near the Minnippi Parklands. He is concerned that development will affect the local squirrel glider population. In 2007 Mr Krajniw appealed against the Council’s approval of a development application for a golf course, residential subdivision and associated commercial development, on a large parcel of vacant land slightly to the south of his residence. At the hearing of that appeal the developer, the Environmental Protection Agency and the Council called a myriad of witnesses to meet the plethora of issues raised by Mr Krajniw. Mr Krajniw cross-examined witnesses but called no witnesses himself. His appeal was dismissed ([2009] QPELR 83). In dismissing the appeal, Wilson SC, DCJ (as he then was) found that Mr Krajniw’s concerns about potential impacts on the squirrel glider colony, while understandable, were groundless.
Mr Krajniw then sought, unsuccessfully, to obtain leave to appeal to the Court of Appeal. In dismissing Mr Krajniw’s application, Chesterman JA, with whom Holmes JA agreed, was critical of Mr Krajniw’s conduct. His Honour said:
“[8] The applicant appeared in person both in the Planning and Environment Court and this court. He sought to adjourn the application before the hearing and again when it was called on. He said he was too ill to present his argument. He produced some material to show he suffers a number of ailments. There was no satisfactory evidence that such ailments as he complained of might be ameliorated by treatment, or that he had sought treatment, so that the court might feel confident that, after an adjournment, the applicant would be in better health. The general practitioner who testified and supported the applicant had been consulted infrequently; in February 2008 and February 2009. It appeared that the applicant had seen a different general practitioner in the intervening period but did not proffer that doctor as a witness in support of his claim to debility. The development cannot proceed while this application is pending; s 4.1.59 of the IPA. Delays have proved costly to B & D and further delays will involve it in substantial additional costs. It will be foolish to assume that the applicant was not aware of these factors.
[9] The applicant informed the court that he had impaired vision and suffered from vertigo which in combination made it impossible for him to present his case. He said he could not read and lacked balance. The court refused his application for an adjournment, giving reasons for that course. The hearing then continued during which the applicant presented his case briefly in chief, having initially indicated he could not expand upon his written outline, but at great length in reply after counsel for the respondents had addressed the court. The applicant demonstrated a keen and detailed grasp of his view of the facts. He appeared able to read relevant documents. He did not fall over.
[10] It appeared in the course of the argument for the adjournment that the applicant had another motive for a postponement. He wanted, he said, to prepare a longer and more detailed document in which he could demonstrate deliberate omissions or misstatements by the witnesses who provided reports and gave evidence in support of the development. Two points emerged. The first is that the applicant was not candid in professing illness or disability as the ground for adjournment. The second is that the applicant misunderstands, or chooses to ignore, the legal nature of his application.
…
[13] The applicant advances 75 separate grounds of appeal. It is not necessary to deal with all them individually. Many fall in the same category and can be dealt with together.
…
[22] There is no substance to any of the matters asserted in Grounds 1 to 8. Each of the categories of complaint is falsified by the record. What is disturbing is the applicant must have known that to be so. He was treated fairly and courteously by the primary judge who, as I said, gave him the appropriate degree of assistance. The applicant had no case of his own to present. The role he had undertaken was to challenge BMD’s witnesses with a view to demonstrating that the court should not act upon their opinion. He was not inhibited by any ruling from undertaking that task. It is fanciful to suggest that the primary judge was, or appeared to be, biased towards the respondent. A litigant in person may be forgiven for ignorance of legal procedure or misunderstand the law. There is no excuse for propagating chicanery.”
After dealing with other grounds, all of which were shown to be baseless, his Honour turned to ground 75 as follows:
“[53] Ground 75 is more serious. It is:
“[the applicant] was disadvantaged in the Primary Court in that an employee of Deacons, a legal representative for BMD … gave legal advice to local community groups, in that if anyone opposes BMD they would be bankrupted.”
[54] This assertion was made for the first time in the application for leave to appeal. No complaint of impropriety or misconduct against the solicitors was made to the primary judge. It is to be observed that no particulars of the very serious allegations have been provided. The solicitors for BMD who still represent it have filed affidavits from all solicitors who were engaged in representing BMD in the proceedings before the Planning and Environment Court. They deny any such activity on their part.
[55] The applicant produced no evidence at all in support of the claim which must be regarded as scandalous. He told the
Court the threat was contained in a document which he has not seen. He has not even obtained a copy though he professes to know where they can be found. Mr Krajniw may not be a lawyer but one does not need legal training to understand that one does not make complaints of misconduct, perhaps criminal misconduct, against professional men and women without ascertaining whether there is a basis for the charge. The latitude extended to litigants in person in the presentation of their cases is not a licence for mendacity.”
That matter then returned to this court, to consider the conditions of approval. On this occasion Mr Krajniw relied on some 500 pages of submissions, which included allegations against the lawyers involved in the case and others. Judge Robin QC DCJ gave reasons on 19 April 2010 in which his Honour said:
“There’s an application for costs under section 4.1.23(b) of the Integrated Planning Act by the co-respondent developer and the council. Ordinarily costs aren’t allowed in this jurisdiction. One of the special circumstances under subsection 2(b) is where the court considers that a proceeding or part of it has been frivolous or vexatious.
The applicants for costs, as I understand it, base their claim on what’s become Exhibit 3, which I hear was provided to them by Judge Rackemann on or about the 23rd of February 2010 rather than by Mr Krajniw. However, he’s made it clear right to today that he relied on the contents of that document. It is, in my view, almost totally irrelevant. It contains a good deal of scandalous material, making allegations which are not shown to have any basis against many people, some of whom have nothing to do with the case.
I think I ought to make particular mention of the council’s solicitor, Ms Johnston, who is singled out for more than her fair share of attention.
…
The strong criticisms of her are not shown to be supportable, although Mr Krajniw insists that a short document identifying critical habitat for a particular species was withheld. My own experience of Ms Johnston’s representation of the council over the years gives me some confidence that the criticism of her is unwarranted. My impression is that she understands her professional duties and strives to comply with them.
I think it is appropriate to make an order for costs, but it will be a limited one, made without any expectation that anything is likely to be received under it. Mr Trotter confirms that pursuant to the Court of Appeal’s cost order, the client has issued a bankruptcy notice against Mr Krajniw.
But I will order under section 4.1.23(2)(b) of the Integrated Planning Act (1997), that the appellant pay the respondent council’s and the co-respondent BMD Properties’ costs of appeal from the 24th of February 2010 until today to be assessed to the extent that those costs have been increased by the appellant’s reliance on Exhibit 3.
His Honour’s impression of Ms Johnston is consistent with mine.
Mr Krajniw was also opposed to the construction, by the Council, of a bikeway/footpath through the Minnippi Parklands. The project is clearly contemplated by the relevant Local Plan within the Brisbane City Plan but Mr Krajniw sought to challenge its lawfulness, by originating applications.
The bikeway/footpath is to be constructed in two stages. On 31 October 2008 I dismissed Mr Krajniw’s two applications in relation to Stage 1. Mr Krajniw then unsuccessfully sought leave to appeal to the Court of Appeal. Mr Krajniw’s proposed Notice of Appeal raised some 55 grounds which again, included unsupported allegations of misconduct. Holmes JA, with whom McMurdo J and Applegarth J agreed, said in relation to Grounds 5 to 13 as follows:
“The applicant’s proposed Notice of Appeal contained some 55 grounds, starting in number at ground 5. Grounds 5 to 9 assert breaches of the rules of natural justice by the learned primary judge in failing to: give the applicant a fair hearing, assist him in presenting his case, explain the proceedings, properly consider his material and properly identify his submissions.
The applicant did not point to any examples in the transcript of such failures. An examination of the transcript shows that the learned judge treated the applicant with courtesy, fairness and commendable patience, doing his best against considerable odds to clarify the issues for the applicant and to establish what it was that the applicant sought to contend. (See in particular the transcript in the appeal record 8 to 11, 326 and 3998). Those grounds are patently without substance.
Grounds 10 to 13 make a number of serious and unsupported allegations of professional misconduct and indeed criminal conduct on the part of the legal representatives of the first and second respondent. One allegation was that threats were made by one of the representatives before the hearing; it was not raised before the primary judge and was not the subject of particularization or affidavit material from the applicant.
The remaining allegations seem in large part to turn around the claim that the representatives were in possession of some undisclosed maps – an essential habitat map and a regional ecosystem map – on the strength of which the applicant asserts they should have advised the court that the development was assessable.
There was no evidence whatsoever that anything was withheld by any of the legal representatives. Indeed here the applicant seems to accept that both of those maps were before the court but he has not modified his allegations in consequence. The essential habitat map was tendered at first instance by the applicant, who said then that it had been provided to him by the solicitor for the first respondent. The regional ecosystem map was already before the court, next to the affidavit of an expert witness in order to establish that the area was properly described as a ‘remnant of concern regional ecosystem’.
As to any other possible relevance of the maps, in grounds 14 to 18 the applicant seeks to rely on them identifying that the development was in a category 1, or, alternatively a category 2 area under the Vegetation Management Act 1999 to argue that the development was assessable. But neither of the maps was a ‘property map of assessable vegetation’ upon which such categories are shown under the Vegetation Management Act and which is the only form of map mentioned in table 4, part 1, schedule 8. They appear to have no relevance to whether the work falls within the exception of clearing ‘for urban purposes in an urban area’ found by the learned primary judge.
Those grounds are baseless, as are those which rely on alleged misconduct by the respondent’s legal representatives. Counsel for the first respondent is correct in his contention that the making of those allegations is an abuse of process and that the relevant paragraphs of the outlines of argument and notice of appeal should be struck out and removed from the court file.”
It will be seen therefore, that Mr Krajniw not only has shown an ability and willingness to raise almost every imaginable potential legal obstacle to development which he opposes, but has also sought to delay the hearing of proceedings, has been prepared to make allegations which are not supported by the evidence as well as make unsupported and scandalous allegations of misconduct. Counsel for the Council relies on that context as shedding light on Mr Krajniw’s institution and pursuit of the subject proceedings.
Mr Krajniw, by these proceedings, sought to challenge Stage 2 of the bikeway/pedestrian path. His applications were based on identical prolix grounds, extending to some 95 pages. They raised a plethora of issues which, in my reasons delivered on 31 March 2010, are described as, to an extent, variously repetitive, irrelevant, not supported by the evidence and, at times scandalous. Indeed much of what was contended for in Mr Krajniw’s grounds fell within those categories or were plainly irrelevant and/or wrong.
In my reasons in both the Stage 1 proceedings and in these proceedings, I expressed some sympathy for the position of a self-represented litigant, such as Mr Krajniw, in seeking to come to grips with the complex statutory provisions. That such a litigant includes, in their grounds, some which are misconceived, is often understandable and would not, of itself, readily be taken as an indication of conduct warranting an adverse order for costs. In Mr Krajniw’s case, however, his failure to raise relevant grounds, supported, where appropriate, by evidence, is more complete, as is reflected in my earlier reasons. That is significant, particularly in circumstances where, by reason of his other proceedings, he must have realised the importance of demonstrating a proper basis for his contentions.
Mr Krajniw sought to raise again, in the context of Stage 2, matters which had already been determined against him in relation to Stage 1. His allegations included serious, but unsubstantiated allegations of misconduct on the part of the Council, the EPA, State Government Departments and others.[1] Mr Krajniw tried unsuccessfully, to delay the hearing of these proceedings (see [2010] QPEC 18). He also complained, at the commencement of the hearing, about impaired capacity due to ill health, but appeared to recover quite well as the hearing progressed.
[1] See the originating application paragraphs [15], [119], [120], [121], [341]-[345].
In response to this application for costs, Mr Krajniw filed an affidavit which includes:
(i) irrelevant and uncorroborated complaints of clearing carried out by the administrators of the caravan park where he lives and alleged inaction on the part of those to whom he complained;[2]
[2] [5] – [10].
(ii) irrelevant, unsubstantiated and scandalous allegations of a Council officer having ‘torched’ habitats some four years ago, and of ‘sadistic atrocities of cruelty’ by unidentified “teams of ferals, masquerading as scientific researchers” over the past 14 years;[3]
[3] [11] – [13].
(iii) allegations, irrelevant for present purposes, that a certain developer (who was not a party to these proceedings), committed development offences;[4]
[4] [20] – [22].
(iv) claims that the respondents and the Department of Infrastructure and Planning should be prosecuted for gross dereliction of duty;[5]
[5] [23] – [25].
(v) complaints about not being granted an adjournment of the hearing of the proceeding; and
(vi) more complaints about the Council’s solicitor.[6]
[6] [63].
In Muddie v Gain River Pty Ltd No 2 (2003) 2 Qd R 271, the Court of Appeal (per McMurdo P and Atkinson J) determined that “frivolous” for the purposes of the corresponding provision of the Integrated Planning Act (1997), took its dictionary definition as: of little or no weight or importance; not worthy of serious note; a frivolous objection, or characterized by a lack of seriousness or sense. Proceedings which are productive of serious and unjustifiable trouble and harassment are vexatious. 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.
Mr Krajniw has, in these proceedings, taken a ‘scattergun’ approach to raising a litany of issues that are variously repetitive, irrelevant, not supported by the evidence, misconceived, beyond the jurisdiction of the court and, at times, scandalous. When unsuccessful at either delaying the hearing or establishing his case at it he has, in response to an application for costs, resorted to further irrelevant, unsubstantiated and scandalous allegations. The Council has been put to serious and unjustifiable trouble and cost in having to respond to these proceedings. Subject to some specific matters discussed below, none of Mr Krajniw’s contentions have been found to have substance.
These proceedings, and Mr Krajniw’s pursuit of them, viewed in the context of his conduct otherwise, have the hallmarks of proceedings which were not just weak but which were frivolous or vexatious and which were instituted or continued primarily to delay or obstruct.
It must be acknowledged, however, that the proceedings have served some useful purpose. They shone a light on the Council’s processes. This ultimately led to the detection of two areas of concern, each of which were discussed in my reasons published on 31 March 2010. One of those concerned s 89 of the Nature Conservation Act, which creates an offence for taking a protected plant that is in the wild, unless there is a relevant exemption or approval. Mr Peate, the solicitor who appeared for the second and third respondents, sought unsuccessfully to deal with s 89 at the original hearing. It was only after reserving the matter for consideration that I was able to determine the basis upon which an offence would be committed under s 89, unless the Council was able to do something, either to meet the terms of the relevant exemption or to obtain the necessary licence, permit or authority. I reconvened the court, on 29 March 2010, to alert the parties to that.
Subsequently, the Council acknowledged this difficulty, undertook not to conduct any clearing until it was resolved and then promptly applied for and received the necessary approval. In my reasons published on 31 March 2010 I said, in my conclusion, that:
“Mr Krajniw has been able to establish that the Council needs more than the development permit it currently has if it wishes to undertake clearing for the purposes of Stage 2. And in particular, it needs to deal with the issues raised by s 89 of the NCA.”
Crediting Mr Krajniw in that way was, on reflection, overly generous. As my reasons otherwise recorded:
“While Mr Krajniw had mentioned s 89 of the NCA, he had not particularized his argument nor did he enunciate the basis upon which a problem has ultimately been discovered.”
It appears to have been a case of Mr Krajniw, in the course of the “scattergun” approach having serendipitously hit a target, without being able to articulate why.
The second matter concerned the Nature of Conservation (Wildlife Management) Regulation (2006). As my reasons recorded, that regulation was not raised by Mr Krajniw in his Outline. Mr Peate, however, drew the court’s attention to the fact that the Council had not undertaken sufficient investigation to establish that the project would not offend s 332, which relates to tampering with an animal breeding place. The matter having been raised by Mr Peate, the Council promptly undertook the necessary investigation to establish that no offence would be committed under that regulation.
I do not consider that either of these matters prevents the circumstances from enlivening the court’s jurisdiction to make an order for costs against Mr Krajniw. They do not alter the proper characterisation of the proceedings as a whole, or Mr Krajniw’s pursuit of them. It does raise the question as to whether, in the exercise of discretion, I ought decline to make an order as to costs, given that the proceedings have served some useful purpose. Ultimately, however, I am unpersuaded that I should exercise my discretion favourably to Mr Krajniw.
As I have already observed, the Nature Conservation (Wildlife Management), Regulation issue was not raised by Mr Krajniw at all. While Mr Krajniw had, as part of his “scattergun” approach made reference to s 89 of the Nature Conservation Act, he did not enunciate the basis on which there was any problem for the Council. Once it was raised, by me, it was promptly dealt with by the Council. The Council should not, on this account, be deprived of a compensatory order for the costs it had incurred in having to meet Mr Krajniw’s proceedings otherwise.
Mr Krajniw should, however, not be ordered to meet the Council’s costs relating to the two issues discussed. But for those issues, the costs after the conclusion of the initial hearing of the matter, on 8 March 2010, would have been limited to a formal appearance to receive judgment, as well as the costs of this application for costs. The Council’s costs, after 8 March 2010 should be limited in that way.
Accordingly I order the applicant to pay the first respondent’s costs of and incidental to the proceeding up to and including 8 March 2010, together with its costs thereafter limited to the costs of a formal appearance to receive judgment and the costs of this application for costs.