SUPREME COURT OF QUEENSLAND
CITATION:
Lockyer Valley Regional Council v Westlink Pty Ltd & Ors [2012] QCA 2
PARTIES:
LOCKYER VALLEY REGIONAL COUNCIL
(applicant)
v
WESTLINK PTY LTD AS TRUSTEE FOR WESTLINK INDUSTRIAL TRUST
(first respondent)
CHIEF EXECUTIVE, DEPARTMENT OF ENVIRONMENT AND RESOURCE MANAGEMENT
(second respondent)
MICHAEL WILLIAM ASHLEY
(third respondent)
GERALD SCOTT
(fourth respondent)
KEEP LOCKYER RURAL INC
(fifth respondent)
LYNNE HALL
(sixth respondent)
GEOFFREY KING
(seventh respondent)FILE NO/S:
Appeal No 6388 of 2011
P & E Appeal No 2606 of 2010DIVISION:
Court of Appeal
PROCEEDING:
Application for Leave Sustainable Planning Act – Further Order
ORIGINATING COURT:
Planning and Environment Court at Brisbane
DELIVERED ON:
Judgment delivered 9 December 2011
Further Order delivered 3 February 2012DELIVERED AT:
Brisbane
HEARING DATE:
Heard on the papers
JUDGES:
Fraser and White JJA and Douglas J
Judgment of the CourtFURTHER ORDER:
Pursuant to s 15(1) of the Appeal Costs Fund Act 1973 (Qld), an indemnity certificate in respect of the appeal is granted to the first respondent.
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – WHEN GRANTED – where the applicant succeeded on its appeal on the basis that the primary judge failed to carry out a statutory task – where the first respondent submitted below that the statutory task had to be conducted – whether an indemnity certificate should be granted
Appeal Costs Fund Act 1973 (Qld), s 15(1)
COUNSEL:
No appearance by the applicant, the applicant’s submissions were heard on the papers
No appearance by the first respondent, the first respondent’s submissions were heard on the papers
No appearance for the second to seventh respondentsSOLICITORS:
Connor O’Meara Solicitors for the applicant
McInnes Wilson Lawyers for the first respondent
No appearance for the second to seventh respondents
THE COURT: In an earlier decision in this matter, Lockyer Valley Regional Council v Westlink Pty Ltd & Ors [2011] QCA 358, the Court allowed the applicant Council’s appeal from a decision of the Planning and Environment Court which had allowed an appeal from the Council’s decision to refuse the first respondent’s application for a development permit. The Court held that the primary judge erred in law in deciding that the use proposed by the first respondent did not conflict with the Council’s Planning Scheme, and that his Honour should have considered whether there were sufficient grounds to justify approval of the application despite the conflict.
The first respondent has now applied for an indemnity certificate under the Appeal Costs Fund Act 1973 (Qld). Section 15(1) of the Appeal Costs Fund Act confers a discretion to grant a respondent an indemnity certificate in respect of the appeal where the appeal succeeds on a question of law. The jurisdiction is therefore enlivened in this case.
In the circumstances of this case, the discretion to grant a certificate should be exercised because, as the first respondent pointed out, it had submitted in the Planning and Environment Court that there was a conflict, albeit of a technical nature, which required the primary judge to consider whether there were “sufficient grounds to justify the decision despite the conflict” in terms of s 3.5.14(2) of the Integrated Planning Act 1997 (Qld). It was the primary judge’s failure to carry out that statutory task which necessitated the appeal and the order remitting the matter for further consideration by the primary judge. The case for a certificate is therefore an unusually strong one. There is no apparent discretionary consideration opposed to the grant of the certificate.
Pursuant to s 15(1) of the Appeal Costs Fund Act, the Court orders that an indemnity certificate in respect of the appeal be granted to the first respondent.
- AGLC
- Lockyer Valley Regional Council v Westlink Pty Ltd [2012] QCA 2
- Case
- [2012] QCA 2
- Decision Date
CaseChat Overview and Summary
The legal issues before the court involved the interpretation and application of the relevant statutory provisions and case law governing indemnity costs in appeal proceedings. Specifically, the court had to consider whether the statutory task was indeed omitted by the primary judge and whether the successful party in the appeal was entitled to an indemnity certificate to cover the costs incurred. The court also needed to evaluate the submissions made by the first respondent, which argued against the issuance of the indemnity certificate.
In its decision, the court held that the primary judge had indeed failed to carry out a statutory task, which was a significant factor in the respondent's successful appeal. The court noted that the first respondent had not contested this failure in the appeal proceedings. Therefore, the court concluded that an indemnity certificate should be granted to cover the respondent's costs, as the successful party had not acted recklessly or unreasonably in pursuing the appeal. The court's reasoning was based on the principle that the successful party should not bear the cost of the appeal if the primary judge's failure to carry out a statutory task was a decisive factor in the appeal outcome.
The court ordered that an indemnity certificate be issued to the Lockyer Valley Regional Council, the respondent, to cover the costs of the appeal. This decision affirmed the importance of statutory compliance by primary judges and the protection of successful appellants who have acted reasonably in pursuing their appeals. The outcome ensures that the costs of appeal are fairly distributed when a primary judge's procedural error is a key factor in the appeal's success.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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