McIlwraith v Scenic Rim Regional Council (No. 2)

[2011] QPEC 121

[2011] QPEC 130

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

No 3629 of 2010
P & E Appeal No 2577 of 2010

DOUGLAS WILLIAM MCILWRAITH	Applicant
and
SCENIC RIM REGIONAL COUNCIL	Respondent

BRISBANE

..DATE 06/10/2011

ORDER

CATCHWORDS
Integrated Planning Act 1997 s 4.1.23
Sustainable Planning Act 2009 s 457

Respondent Council awarded costs of an out-of-time appeal by a developer against the very development approval he applied for, but not of a subsequent unsuccessful originating application that raised the same issues - although unsuccessful with his "constitutional" points, the applicant appellant was entitled to his day in court - if (contrary to the court's view) the discretion to award costs arose because proceedings were frivolous or vexatious it should not be excused - however, there was default in complying with the court's procedural requirements justifying costs.
HIS HONOUR:  This is an application by the council which was the successful respondent both an appeal and an originating application concerning the same issues which came on for determination and were determined last month, see; [2011] QPEC 121.

The reason for there being this doubling up is that the appeal was instituted more than two years out of time under the Integrated Planning Act 1997 (IPA).  The appellant needed an indulgence which in my view was always unlikely to appeal so far out of time.  There's no corresponding time limit in respect of the originating application subsequently filed under the Sustainable Planning Act 2009 (SPA) seeking the same outcome, namely the court's determination that a development approval for a private airstrip, which Mr McIlwraith sought and obtained from the council, was a nullity, indeed that his underlying application was a nullity for constitutional reasons. 

Although it's the case that the council intimated to Mr McIlwraith and his solicitor that the difficulties associated with delay could be obviated by the supplementary proceeding, I don't accept from Mr Clough that duplication was in any way the council's responsibility.  As Mr Andreatidis said, the appellant forged ahead with his appeal rather than withdraw it. 

Although the council takes the position that, having regard to the Court's decision, the proceedings were essentially hopeless and on that account vexatious, I disagree with that. Mr Clough alluded to statements made by the majority in Murdie v Gainriver Pty Ltd to the effect that the arrangements in this jurisdiction are ones which facilitate access to the Court to have issues determined and in the ordinary event without risk as to costs orders should the Court determination not be what's desired. See [2003] 2 Qd R 271 at [34]. The provision considered was s 7.6 of the Local Government (Planning and Environment) Act 1990.

The IPA in section 4.1.23 continued the no-costs regime which is now carried through into the SPA by section 457. In each case it's subsection (2)(a) which exceptionally gives the Court jurisdiction to order costs if it considers that a proceeding is frivolous or vexatious. It's another question, as Mr Andreatidis accepts, whether the Court will exercise that jurisdiction. It's sufficient to say that, in my view, Mr McIlwraith, under the arrangements I've mentioned, was entitled to his day in Court. If the jurisdiction did arise I would not be inclined to exercise it to his disadvantage under paragraph (b).

However, the circumstances are ones coming within paragraph (e) which establishes the jurisdiction if "a party has incurred costs because another party has defaulted in the Court's procedural requirements"; (e) is the paragraph in the IPA provision; in the SPA it's subsection 2(f). 

The deficiencies in Mr McIlwraith's performance are of various kinds, beginning with failure to comply with the time limit for instituting his appeal.  It may be accepted that he was entitled to approach the Court and seek a longer period under section 4.1.55 for that appeal.  The prospects of success in that regard were always negligible, such was the extent of delay.  It emerged that although steps might have been taken to notify relevant authorities under provisions such as section 78B of the Judiciary Act 2003 (Cth) of the constitutional point, there's no material before the Court to establish that.  It also emerged that the appellant had failed to notify its appeal to those entitled the notice of it, in particular the submitters in respect of the impact assessable development application for a private airstrip, most of whom, as it happens, favoured the proposal - most but not all.

The belated taking of those steps, unsurprisingly, as Mr Clough said, elicited no interest in any quarter, but additional days in Court were necessary so that the Court could get into a position to set the matter down for hearing.  The appellant/applicant was required to provide particulars so that his constitutional argument could be understood.  In all those regards, in my view, there was default in satisfying the Court's procedural requirements.  It shouldn't have been necessary for the Court to be approached to order particulars, for example.  A limited number of mentions would have been necessary in any event under the Court's case management processes and there's no question of Mr McIlwraith being ordered to pay costs for events of that kind, such as the vacating of the setting down of the matter for hearing which I understand was due to availability of someone or other. 

The appeal sought costs and the originating application that the costs of all parties follow the event.  In other jurisdictions that would be a sufficient basis for ordering costs against Mr McIlwraith as the unsuccessful party in both, however Mr Andreatiders did not contend that by inviting costs orders in that way Mr McIlwraith changed the essential no costs nature of the jurisdiction.  I think that's right.  Mr Clough indicates today that it was essentially inadvertence to the sections mentioned that is responsible for the references to costs that I've mentioned. 

The council, well before the hearing, made an offer to settle on the basis of both proceedings being abandoned and the parties bearing their own costs.  That's been placed before the Court.  By analogy with the insufficiency of the prayers for relief in the appeal and originating application to make this a cost regime, I think that it's not possible in this jurisdiction for the council to make it a costs regime by the communication mentioned.  Such communications, in my view, are extremely useful in placing the other parties on notice that costs will be asked for and may become a relevant factor in the Court's determination regarding costs. 

The council letter is a relevant factor here.  So, too, is the reservation of costs in orders made by me and other Judges in the Court as the matter proceeded towards last month's hearing.  The practice of the Court is such that reservation of costs constitutes a warning to the parties that costs issues has arisen, to be argued out at a later time.  I agree with Mr Clough that reservation of costs carries no automatic consequences, it's still a matter for the Court's discretion what order to make about the costs that are reserved. 

While I'm firmly of the view that Mr McIlwraith ought to have had his day in Court I consider that the provisions mentioned, that is paragraphs (e) or (f) as the case may be, do apply, that the proceeding has been conducted in a way that has made it more burdensome and costly for the council to defend than ought to have been the case. 

The orders that will be made in respect of costs are as follows.  Firstly, order that Mr McIlwraith pay the council's costs of and incidental to the appearances in the proceedings on 28th of January, 2011, 23rd of February, 2011, 25th of February, 2011 and the 15th of April, 2011.  Otherwise order that the appellant, Mr McIlwraith, pay the council's costs of the appeal 2577 of 2010 except to the extent of the costs that the council would have incurred in resisting the originating application, 3629 of 2010.

Although costs weren't reserved on the 23rd of February the same application was dealt with by me in adjourning it so that the matter could be attended to to the 25th of February when costs were reserved. 

So, essentially, Mr Andreatidis, what you've got is the costs that were reserved on the 25th of February; for the reason I just gave, that works for two days‑‑‑‑‑

MR ANDREATIDIS:  Yes.

HIS HONOUR:  ‑‑‑‑‑of mentions, then you get the costs of the appeal but they're going to be reduced by what was inevitably involved in fighting the originating application, so some thinking is going to have to be done about the big hearing last month.  Thank you.

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