Millmerran Shire Council v. Smith & Anor (No 2)

[2008] QPEC 113

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Millmerran Shire Council v Smith & Anor (No 2) [2008] QPEC 113

PARTIES:

MILLMERRAN SHIRE COUNCIL

Applicant

V

CHRISTOPHER LAWRENCE SMITH

First respondent

And

JOCK MCTAVISH

Second respondent

FILE NO/S:

163/2008

DIVISION:

Planning and Environment

PROCEEDING:

Costs Application

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

9 December 2008

DELIVERED AT:

Brisbane

HEARING DATE:

1 August, 14 October 2008; written submissions received from Council on 28 October 2008

JUDGE:

Alan Wilson SC, DCJ

ORDER:

Order that the first respondent pay Council’s costs of and incidental to these proceedings (including costs reserved on 10 July 2008) from and after 27 May 2008, assessed on an indemnity basis

CATCHWORDS:

COSTS – COSTS IN PLANNING AND ENVIRONMENT COURT – INDEMNITY COSTS – whether respondent’s defence to proceedings ‘frivolous and vexatious’

Integrated Planning Act 1997 s 4.1.23

Cases considered:

Gold Coast City Council v Metrostar Pty Ltd and Ors [2005] QPELR 17; [2004] QPEC 029

Millmerran Shire Council v Smith and Anor [2008] QPEC 073
Mudie v GainriverPty Ltd (No. 2) (2003) 2 Qd R 271; (2002) 124 LGERA 393; [2003] QPELR 327; [2002] QCA 546
Noosa Shire Council v Johns and Ors [2008] QPELR 1; [2007] QPEC 68
Oceanic Sunline Special Shipping Company Inc v Fay (1988) 165 CLR 197; (1988) 79 ALR 9; (1988) 62 ALJR 389

TW Hedley v Cairns City Council [2004] QPELR 159; [2003] QPEC 039

Walsgott v Maroochy Shire Council and Anor [2005] QPELR 521; [2005] QPEC 12

COUNSEL:

S P Fynes-Clinton for applicant

First respondent for himself, and as agent for second respondent

SOLICITORS:

Bernays Lawyers

First Respondent self-represented

1. On 14 October 2008 I ordered that Mr Smith take steps to obtain Council approval for two structures on his land at Millmerran which had been built without the necessary permits.  The judgment followed a hearing on 1 August 2008 and was accompanied by Reasons[1].  When judgment was given the parties were invited to make submissions about costs.  Mr Smith indicated he would not be making any; Mr Fynes-Clinton, who appeared for Council, later delivered written submissions on 28 October 2008[2].

   [1]Millmerran Shire Council v Smith [2008] QPEC 073

   [2]Pursuant to Practice Direction No. 2 of 2008 the applicant has leave to read and file those submissions.

1. Council seeks costs against Mr Smith on an indemnity basis from and after 27 May 2008.  That was the date upon which Mr Smith filed the affidavits upon which he intended to rely at the hearing and its particular relevance, Council says, is that what he filed contained nothing contesting any issue of fact asserted by Council concerning the allegedly unlawful building work on his land (the matter at the heart of the proceedings), and showed that his opposition to Council’s proceedings involved the repetition of barren, previously rejected arguments.

1. Those arguments were explored in the Reasons published on 14 October and, indeed, found to be without substance.  Two of them had previously been rejected in several courts (the ‘freehold title’ and ‘independent sovereign state’ issues), and were, again, shortly dismissed[3]. The third relied upon s 106 of the Australian Constitution and a claimed immunity from regulatory laws (including the Integrated Planning Act 1997) because of Mr Smith’s religious beliefs and practices. Again, it had previously been rejected in this court.

   [3]Millmerran Shire Council v Smith, supra, at paras [9-11].

1. Further arguments raised by Mr Smith during his oral submissions at the hearing on 1 August 2008 alleging that the relief sought by Council involved discrimination on the basis of religion (and offended the Queensland Anti-Discrimination Act 1991 and similar Commonwealth legislation) were, in the absence of any evidence suggesting discriminatory practices by Council or any circumstance attracting the operation of that legislation, also rejected[4].

   [4]ibid, para [12].

1. Council says that these submissions, flagged in Mr Smith’s affidavits filed in May, were so obviously unarguable and lacking in substance that no reasonable person acting in good faith would have continued to defend the proceedings relying solely upon them. This also means, Council says, that Mr Smith’s resistance to the proceedings can be categorised as ‘frivolous or vexatious’ under the legislation governing costs in this jurisdiction: s 4.1.23(2)(b) of the Integrated Planning Act 1997.

1. That section relevantly provides that each party to a proceeding in this court must bear its own costs, but the court may order costs in certain circumstances (which are then listed in the provision and generally involve some inappropriate or contumelious conduct by a party).  The particular sub-section relied upon by Council involves a consideration whether ‘… the proceeding (or part of the proceeding) (has) been frivolous or vexatious’. 

1. The word ‘frivolous’ has been considered in a number of previous decisions of this court, and the Court of Appeal.  In particular, in Mudie v GainriverPty Ltd (No. 2) (2003) 2 Qd R 271 the President and Atkinson J (and Williams JA in a separate judgment) accepted it has a standard, dictionary meaning: of little or no weight, worth or importance (or value); having no reasonable grounds; not worthy of serious notice; or characterised by lack of seriousness or sense[5].

   [5]Macquarie Dictionary; Oxford Dictionary; Mudie v Gainriver Pty Ltd (supra) at pp 284, and 291.

1. As Mr Fynes-Clinton submitted, and I accept, in the absence of any new authority or substantive new argument Mr Smith’s defence of the present proceedings relying upon those arguments was always hopeless.  They were nothing more than a repetition of matters previously raised, and comprehensively rejected.  Nor was this (as Mr Fynes-Clinton also said) a case where the arguments were ultimately found to be weak but nevertheless supported by some level of sensible argument which required reflective consideration.

1. Mr Smith’s conduct can, additionally, be fairly categorised as ‘vexatious’.  In Oceanic Sunline Special Shipping Company Inc v Fay (1988) 165 CLR 197 Deane J said that it means ‘productive of serious and unjustified trouble and harassment’[6].  Again, for reasons already discussed it is unarguable that after 27 May this year Mr Smith’s conduct of his case put Council to serious and unjustified cost, expense and inconvenience in respect of a matter which was, in reality, incontestable.

   [6]And, see Mudie v Gainriver (supra) at p 284.

1. In summary, Mr Smith’s conduct of his case offends the public policy considerations implicit in the legislation (and recognised in Mudie) which dictate that a balance should be struck between not discouraging citizens from approaching the court, while not leaving the door open to manifestly groundless actions[7].

   [7]Walsgott v Maroochy Shire Council [2005] QPELR 521, at 525 para [18].

1. I am, therefore, satisfied that this is a case in which the court’s discretion under s 4.1.23(2)(b) is fairly open for consideration. As recognised in the Reasons, a discretionary matter which did arise concerned the long history of proceedings between the parties and the apparent delay which accompanied Council’s attempts, through different courts, to obtain relief; and, the question whether those circumstances created a hurdle for Council, and militated against the remedies it sought. Mr Smith’s submissions did not address that matter at all. In any event, the Reasons considered the question and concluded that it did not prevent Council obtaining relief.

1. Costs nevertheless remain within the discretion of the court and an actual award will not, necessarily, follow[8]; but for the reasons, again, given in my judgment of 14 October this is a case in which Mr Smith has sought for some years to flagrantly disregard the law which applies to everybody else who carries out building work in a local government area.  His reasons for doing so have never had any proper legal basis.  Council has been compelled to incur costs in the public interest to secure compliance with the law.  Those circumstances attract the exercise of the discretion[9].

   [8]TW Hedley v Cairns City Council [2004] QPELR 159.

   [9]See, for example, Noosa Shire Council v Johns [2008] QPELR 1, at 8-9 per Robertson DCJ.

1. The power to award costs on an indemnity basis was considered in Gold Coast City Council v Metrostar Pty Ltd [2005] QPELR 17[10].  Advancing a case based on the mere repetition of arguments previously rejected in the same matter, although in different courts, was always doomed to failure and is properly categorised, I think, as one which attracts the special circumstances in which indemnity costs can fairly and properly be awarded.

   [10]And, see Noosa Shire Council v Johns (supra) at para [50].

1. Council also seeks the costs of an adjourned hearing on 10 July 2008.  At the call-over in this court on 13 June 2008 the matter was set down for hearing on that date.  Mr Smith did not appear but Council, through its legal representatives, undertook to notify him and, I am satisfied, did so by a letter dated 16 June.  Nevertheless, when the matter came on for hearing on 10 July Mr Smith said he was not ready to proceed and at his request the matter was adjourned to the ultimate hearing date on 1 August.  Costs were reserved.  On 10 July Mr Smith said that he thought that day was a review date but Council’s solicitors’ letter to him of 16 June used the phrase ‘set down for hearing for (1) day at 10.00 am on 10 July 2008’.  In those circumstances nothing Council did contributed to Mr Smith’s unilateral error and there is no reason not to include the reserved costs in the final order.

1. Mr Smith must pay Council’s costs of and incidental to these proceedings (including costs reserved on 10 July 2008 and thrown away by the adjournment then) from and after 27 May 2008, assessed on an indemnity basis.