Mirvac Pacific Pty Ltd v Gold Coast City Council (No 2)
[2017] QPEC 57
•11 September 2017
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Mirvac Pacific Pty Ltd v Gold Coast City Council (No 2) [2017] QPEC 57
PARTIES:
MIRVAC PACIFIC PTY LTD
(appellant)
v
GOLD COAST CITY COUNCIL
(respondent/respondent to application for costs)
AND
QUEENSLAND RAIL LIMITED
(applicant for costs)
FILE NO/S:
4346 of 2016
DIVISION:
Planning and Environment
PROCEEDING:
Application in pending proceedings
ORIGINATING COURT:
Brisbane
DELIVERED ON:
11 September 2017
DELIVERED AT:
Brisbane
HEARING DATE:
On the papers with written submissions received to 29 August 2017
JUDGE:
Rackemann DCJ
ORDER:
The Gold Coast City Council pay Queensland Rail Ltd’s costs of the unsuccessful joinder application
CATCHWORDS:
PLANNING AND ENVIRONMENT – PRACTICE AND PROCEDURE – COSTS – where respondent to an unsuccessful joinder application sought costs – where respondent to application wholly successful – where application for joinder persisted in face of timely notice of grounds of opposition – whether application for joinder lacked reasonable prospects of success or was infected by an improper purpose – extent to which the council acted in the public interest
COUNSEL:
J S Brien for the applicant for costs
C L Hughes QC and K W Wylie for the respondent to the application for costs
SOLICITORS:
Clayton Utz for the applicant for costs
Minter Ellison for the respondent to the application for costs
This is an application by Queensland Rail Ltd (QR) for the Gold Coast City Council (the Council) to pay its costs of responding to the Council’s unsuccessful application to join QR to this appeal. The joinder application was dismissed on 14 July 2017 when reasons were published for concluding that there was no reasonable basis for exercising the discretion to join QR as a party to the proceeding.
As at the dates of the filing of the appeal and the joinder application, the court’s power to award costs was governed by s 457 of the Sustainable Planning Act 2009 (SPA). It was common ground that the applicable costs regime for the purposes of this application is that contained in s 457 in force prior to 19 May 2017 when the Local Government Electoral (Transparency and Accountability in Local Governments) and Other Legislation Amendment Act 2017 (amending Act) commenced. At the relevant time, s 457 provided that costs of a proceeding or part of a proceeding, including an application in a proceeding, were at the discretion of the court. Section 457(2) provided a non-exhaustive list of factors to which the court may have regard, including:
(a) the relative success of the parties in the proceeding;
…
(c) whether a party commenced or participated in the proceeding for an improper purpose;
(d) whether a party commenced or participated in the proceeding without reasonable prospects of success;
…
(g) whether the proceeding involved an issue that affects or may affect a matter of public interest…
As has previously been observed,[1] the discretion is open. It is to be exercised judicially, but without any presumption one way or the other. In particular, while the relative success of the parties is a relevant factor and might, in a particular case, prove decisive, there is no presumption that costs should ordinarily follow the event.
[1]Hydrox Nominees Pty Ltd v Noosa Shire Council (No 2) [2015] QPELR 168.
The relative success of the parties is, in this case, a factor which weighs in favour of QR, which was completely successful in resisting the application for joinder.
It was submitted, for QR, that the Council’s application was not only unsuccessful, but was without any reasonable prospects of success. Such a case is one which is so lacking in merit or substance as to be not fairly arguable.[2] There was, in my view, no reasonable prospects of establishing that QR should be joined pursuant to r 69(1)(b)(i) of the UCPR. The wider ambit of r 69(1)(b)(ii) makes it more difficult to categorise the Council’s joinder application is not fairly arguable, but it was, in my respectful view, weak at best, for the reasons given when dismissing the joinder application.
[2]Altitude Corp Pty Ltd v Isaac Regional Council (No 2) [2015] QPELR 139.
It was also pointed out, for QR, that the Council’s unsuccessful joinder application was persisted with in the face of timely notice of QR’s opposition to joinder and the basis for that opposition, which was consistent with the ultimate determination of the application.
It was also submitted, for QR, that the joinder was brought by the Council for the improper purpose of seeking to “bring QR to the table” to negotiate on issues of ownership and maintenance of the bridge. The Council rejected that submission and contended that “one of the key purposes” of the application was to assist the court to properly determine the appellant’s allegation that Condition 5A is practically incapable of compliance.
The appellant’s allegation that Condition 5A was practically incapable of performance focused on what it saw as, in effect, an impasse between QR’s foreshadowed position that it would require, as a condition of granting its approval, under the Transport Infrastructure Act 1994, to carry out works required by the condition, that Council accept future ownership and maintenance of the bridge structure, and Council’s unwillingness to agree to take on those responsibilities. In that context, the Council, in its application to join QR, made reference to QR’s obligations with respect to the bridge. Those obligations were also referred to in its submissions. Indeed, those submissions concluded with the statement that the council’s then application to join QR involve “two simple propositions” only the second of which involved the determination of whether Condition 5A was practically incapable of compliance. The first was said to be that “the presence of QR will assist the court in resolving and adjudicating upon the transport issues in respect of this appeal”.
It may be noted that whilst in the correspondence which preceded the hearing of the application for joinder, the solicitors for the council accepted that no substantive orders could be sought in the proceeding against QR,[3] they nevertheless advised that the application would be proceeded with “to determine whether, at the very least, it would be convenient, to have your client represented at the hearing of this appeal if only formally and respectfully to clarify whether your client is prepared to cooperate, or otherwise, with decisions involving transport assets in which it has an interest, and the orderly development in the locality”.[4]
[3]Page 3 of the exhibits to the affidavit of McLean sworn 11 August 2017.
[4]Page 8 of the exhibits to the affidavit of McLean sworn 11 August 2017.
Senior counsel for the Council, on the hearing of the application, whilst also acknowledging that the court could not order QR to give an approval which would render it responsible for the ongoing owner and maintenance of an upgraded bridge, in the subject proceedings, spoke of the advantages of joining QR so that it could be ordered to participate in the ADR processes of the court. As the earlier reasons recorded:
“[13] It was submitted, for the Council, that if QR were made a party, then this court could order QR to participate in a mediation, presumably with a view to resolving the apparent disagreement between QR and the council about future ownership and maintenance responsibilities for the bridge if it were used to facilitate access, but that is not a satisfactory basis upon which to join QR. It is not this court’s role, in the context of the subject proceedings, to resolve any dispute as between the Council and QR as to which of those entities should be prepared to accept ownership and maintenance responsibilities for the bridge, should it be upgraded and used as access for the subject development. It was also pointed out that the Court could require any expert engaged by QR to participate in a joint meeting of experts. That assumes however, that there would be an issue of relevance in the subject proceeding in respect of which QR would wish to call expert evidence. As has already been observed, the Court will not be called upon to rule on which entity should be required to assume ownership and maintenance responsibilities of the bridge if it is upgraded and used as an access in relation to the subject development.”
Whilst consistently acknowledging that the court would have no jurisdiction to make substantive orders against QR with respect to management and ownership issues, the Council did appear, at least to some extent, to have seen the potential for joinder to be used as a vehicle to “bring QR to the table” to negotiate rather than just as a means to ascertain QR’s true position in order to determine the appellant’s allegation that Condition 5A is practically incapable of compliance.
It was submitted, by the Council, that the court should give greater weight, in the exercise of discretion as to costs, to questions of public interest in the circumstances of the case.
It was submitted that the Council, in both the subject joinder application and the substantive appeal, remains concerned for the orderly development of the locality and in particular, with the public’s use of the bridge controlled by QR. It submitted that:
“Council commenced the subject application for a proper public purpose, in that in circumstances where the appellant had failed to properly determine QR’s position with respect to the Bridge by making the appropriate s.255 TIA application, Council’s view was that QR’s presence in this proceeding, as custodian of the Bridge, would assist the Court in otherwise determining the true position as between all of the relevant the parties.”
The Council further submitted that QR has a real and ongoing interest in the subject matter of the appeal, as custodian of the railway bridge and pointed out that, during the hearing of the joinder application, the court invited counsel for QR to take instructions as to whether QR would wish to be represented in the proceedings, given that its officers may be relevant witnesses, should the matter proceed to a hearing. The last of those matters does not assist the council.
It may be accepted that the Council has an interest in the orderly planning of the locality, that QR has an interest in the bridge and that a decision made by QR as to whether it approves works as required by the conditions of approval will be of relevance in the proceeding. It does not follow however, that there was a proper basis to join QR, over its objection, that it was a matter of any particular public interest significance to seek to do so, or that the costs discretion should be exercised favourably to the Council as a consequence.
The primary focus of any relevant public interest, insofar as the costs application is concerned, is the unsuccessful attempt to join QR to this appeal. The issue for determination in the appeal is whether the appellant’s development approval should be changed so that it stands shorn of certain conditions which require upgrading works to the railway bridge. The appellant’s justification for seeking that change centres upon what is said to be the impracticality of performance of conditions, given QR’s foreshadowed attitude to any application for permission to carry out the works required by those conditions. That raises a factual enquiry as to QR’s attitude. The attempt to join QR as a party, as opposed to ascertaining its position otherwise, does not materially advance the public interest. Further, public interest considerations would not assist in justifying any attempt to use the application to join QR as a vehicle to otherwise entangle it in disputation or negotiation about decisions concerning the ownership and management responsibilities for the bridge, given that those are not matters which fall within this court’s jurisdiction in this proceeding.
In the circumstances, the balance lies in favour of making an order for costs in favour of QR.
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