Moon and Littleford v Gold Coast City Council
[2010] QPEC 26
•19 March 2010
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION: Moon & Littleford v Gold Coast City Council [2010] QPEC 26 PARTIES: BRUCE MOON and BRIAN LITTLEFORD
Appellantsv
GOLD COAST CITY COUNCIL
Respondentand
NATIONAL TRUST OF QUEENSLAND TRADING AS CURRUMBIN WILDLIFE SANCTUARY
First Co-Respondentand
CHIEF EXECUTIVE DEPARTMENT OF MAIN ROADS
Second Co-RespondentFILE NO: Appeal No 70 of 2008
Appeal No 71 of 2008
Appeal No 186 of 2008
Appeal No 187 of 2008PROCEEDING: Appeals DELIVERED ON: 19 March 2010 DELIVERED AT: Southport HEARING DATE: 22 February 2010, Southport JUDGE: C.F. Wall Q.C. ORDER: Appellants to pay some of the costs of the Respondents CATCHWORDS: PLANNING – PLANNING LAW – COSTS – self-represented appellants – appeals discontinued – circumstances where appellants ordered to pay costs of respondents – default in court’s procedural requirements – introduction of new material – conduct of appellants – part of proceeding vexatious CASES: Mudie v Gainriver Pty Ltd (No 2) (2003) 2QdR 271 FAA
Barristers Board v Young (2002) QCA 85 FAA
Hall v Nanango Shire Council and Others (2006) QPELR 278 FAALEGISLATION: Integrated Planning Act 1997, Section 4.1.23. COUNSEL: Dr B Moon and Mr B Littleford (self-represented) – Appellants
Ms N Kefford – Respondent
Mr A Skoien – First Co-RespondentSOLICITORS: Self-represented – Appellants
Minter Ellison Gold Coast – Respondent
Michael Sing Lawyers – First Co-Respondent
HIS HONOUR: The respondent, Gold Coast City Council, and the first co-respondent, National Trust of Queensland, have applied for orders that the appellants pay all or some of their costs of resisting these appeals, which were ultimately discontinued.
History
It is necessary to recount the history of the matters. The appellants, who were submitters, each appealed against decisions of the respondent to approve development applications relating to separate parcels of land at Currumbin, on the Gold Coast. Each notice of appeal contained the same orders sought and the same grounds of appeal. They were in the following terms.
An order that the Application was, Ultra Vires, not empowered to make the application;
An order that the Decision-Maker was consequentially, Ultra Vires, not empowered to make the decision;
An order that the decision be negated;
Should decision-making empowerment be found to apply, an order that because the Decision-Maker did not give appropriate consideration to the domain characteristics of the surrounding area, especially in relation to the Currumbin Hill Local Area Plan, and the limited site use characteristics sought by the applicant, the decision be overturned; and
Such further or consequential declarations or orders as the Court considers appropriate.
The Grounds relied upon are:
1/.Currumbin Bird Sanctuary Act 1979.
2/.Gold Coast Planning Scheme 2004 (as amended)."
Appeals 70 and 71 of 2008 were filed on the 11th of February 2008, and appeals 186 and 187 of 2008 were filed on the 8th of April 2008. The appellants are, and at all times, have been representing themselves, Dr Moon normally speaking for both of them. On the 14th of July 2008, Judge Brabazon QC, made the following orders.
The orders sought in paragraphs 1 and 2 of the notices of appeal filed in the Planning and Environment Court for appeals 70, 71, 186 and 187 of 2008 ("the Appeals") be determined together and by way of preliminary hearing.
All material for the preliminary hearing in the Appeals be filed in Appeal No. 71 of 2008.
Request for further and better particulars
By 24 July 2008, the Appellants in the Appeals ("the Appellants") respond to the Co-Respondent's request for further and better particulars.
The parties to the Appeals participate in a mediation to be conducted by the Planning and Environment Registrar (ADR) on 28 July 2008 commencing at 2pm at Brisbane.
Evidence for the Preliminary Hearing
By 15 August 2008, the Appellants in each of the appeals file and serve any affidavit material on which they intend to rely.
By 29 August 2008, the Respondent and Co-Respondent in each of the appeals file and serve any affidavit material on which they intend to rely.
By 5 September 2008, the Appellants file and serve any affidavit material by way of reply.
Outlines of Argument for the Preliminary Hearing
The Appellants file and serve on each of the parties their outlines of argument with respect to the preliminary hearing by 5 September 2008.
The Co-Respondent and Respondent file and serve on each of the parties a response to the Appellants' outlines of argument by 8 September 2008.
Preliminary hearing
The preliminary hearing be allocated for hearing in Southport on 21 November 2008.
Review
The Appeals be listed for review on 18 August 2008."
By letter dated the 24th of July 2008, the appellants provided the following further and better particulars.
1.Paragraph 1: Currumbin Bird Sanctuary Act, especially sections 2, 3, 4, 5 and 13.
2.Paragraph 2: Integrated Planning Act, especially Chapter 2, Part 1, Division 2; and Chapter 3, Part 2, Division 1.
By letter to the appellants dated the 25th of July 2008, the solicitors for the first co-respondent contended that these particulars were insufficient. There was a further response by the appellants, dated the 29th of July 2008, and sent by email on the 30th of July 2008. The first co-respondent's solicitor says that this response was "inadequate in providing guidance on the issues that the appellants wished to raise, but it did provide greater detail than before." See her affidavit filed on the 12th of March 2009, paragraph 18.
The appellants intended to but did not file and serve the material on which they intended to rely by the 15th of August 2008, and thus did not comply with paragraph 5 of Judge Brabazon's order.
At the review before me on the 18th of August 2008, Dr Moon said they were unable to do so for two reasons:
(1) Mr Littleford had been extremely ill.
(2) They hadn't been able to get the material together and do the research they wanted to do.
The mediation on the 28th of July 2008 was unsuccessful, and the impression I had on the 18th of August 2008 was that the appellants hoped the matter would resolve then and without the need for them to take any steps towards the preliminary hearing.
Before me on the 22nd of February 2010, Dr Moon said the appellants had not filed their material by the 15th of August 2008 because, (T1-36):
"the timeline for us was such that by the time we tried to understand what it was that we needed to do, time had expired. ... We provided the information but we provided it late."
Dr Moon agreed that because the appellants provided their material late that meant that the other parties had to attend on another occasion and incur costs (T1-36).
On the 18th of August 2008 I extended until 4 p.m. on the 22nd of August 2008, the time for the appellants to file and serve any affidavit material on which they intended to rely at the preliminary hearing. The appellants agreed that they could do so by then. I also ordered that the matters be further reviewed on the 8th of September 2008.
The appellants filed their material, three affidavits, on the 22nd of August 2008 and their outline of argument on the 8th of September 2008, which was late by three days. The outline is dated the 5th of September 2008. In their outline, the appellants argued:
(1) That the decision of the first co-respondent was ultra vires the Currumbin Bird Sanctuary Act 1976. (They really gave no further particulars).
(2) That the decision of the respondent was ultra vires because relevant parts of its Planning Scheme did not comply with the Integrated Planning Act. (This is a wider ground than that referred to in the notices of appeal and the further and better particulars provided by the appellants).
Matters were further reviewed by me on the 8th of September 2008. On that date Dr Moon appeared to claim, at least over and above Mr Littleford, some "expertise" in arguing matters raised in the appeals (T1-4). Searches by Karen Van Den Brand, solicitor for the first respondent, reveal that Dr Moon has previously filed affidavits in four Planning and Environment Court appeals and has also been involved in an appeal in the Land Court. See the affidavit of Miss Van Den Brand filed on the 12th of March 2009, paragraphs 89-92. See also the affidavits of Dr Moon, filed 20th of November 2008 and 19th of January 2009. On the 21st of November 2008, Dr Moon said to Judge Kingham, (T1-12), that he had been in the Planning and Environment Court, "a few times, but always as a respondent" not an appellant and had never had to "fight this sort of situation." What he says in his affidavit filed on the 19th of February 2010, paragraph 7, is a little different. Suffice it to say he is not a stranger in this environment and he has been able to put together comprehensive and intelligible submissions.
The respondent was understandably concerned by the new arguments advanced by the appellants as to the validity of its Planning Scheme. Mr Litster SC, for the respondent, described it as "a fundamental challenge" to the Planning Scheme,
(T1-10). This had not been raised before. It also required the appellants to serve relevant documents on the Chief Executive of the Department of Infrastructure and Planning. The appellants agreed that Mr Litster was "probably right" in the concern he expressed and that the appellants should have been more specific in their notices of appeal, (T-10).
Mr Litster also put the appellants on notice as to the power of the Court to order costs where a party has incurred costs because another party has defaulted in the Court's procedural requirements (IPA section 4.1.23(2)(e)). Dr Moon indicated that he was aware that costs could be ordered in the case of vexatious proceedings (IPA section 4.1.23(2)(b)), (T1-21).
Of relevance to the present applications the appellants were given leave to amend the notices of appeal by deleting the word, "consequentially", in paragraph 2 of the orders sought, (this they did by filing amended notices of appeal on the 12th of September 2008), the time for the respondents to file and serve a response to the appellants outline of argument was extended to 4 p.m. on the 22nd of September 2008, costs were reserved and the matters were listed for further review on the 30th of September 2008. The preliminary hearing was still to take place on the 21st of November 2008.
On the 30th of September 2008 orders were made extending the time for the respondents to file and serve a response to the appellants outline of argument, until the 13th of October 2008. Costs of the respondents of that day were reserved.
The extension was required because of the time involved in analysing the respondents Planning Scheme as a result of the "fundamental challenge" mounted by the appellants in their outline of argument filed on the 8th of September 2008.
The review on the 30th of September 2008 was clearly necessitated by the new issue raised in the appellants outline of argument.
No change was made to the date of the preliminary hearing.
The respondents outlines of argument were filed, but not until the 27th of October 2008, but nothing seems to turn on this as far as the appellants are concerned.
On the 20th of November 2008, the day before the preliminary hearing, the appellants delivered to the respondents what they described as a 70 page outline of argument and what the appellants described, (T 20th of November 2008 1-13, 14 and
T 22nd of February 2010 1-41), as written submissions. The appellants submitted that putting their submissions in writing was intended to save time on the 21st. It had the opposite effect. On the 21st, Mr Litster said the first 29 pages were predominately directed to the lack of capacity of the first respondent to apply for the relevant development approvals and the balance to the validity of the respondent's Planning Scheme. The appellants had also filed an affidavit by Dr Moon on the 20th of November 2008.
The matters came before Judge Kingham on the 21st of November 2008. Mr Litster submitted that the 70 page document was "a much more structured and detailed challenge" than the brief outline filed on the 8th of September 2008, and that is clearly correct. Judge Kingham also took that view. Based on that earlier outline the Chief Executive of the Department of Infrastructure and Planning decided not to elect to become a respondent to the appeals. Mr Litster said the chief executive may have to reconsider that decision in the light of the 70 page document.
The respondents requested an adjournment to enable them to respond to the appellants expanded outline of argument.
Dr Moon had told Mr Litster that he didn't intend to expand orally on his written argument, which in itself lead the respondents to request time to consider the document. A point which the respondents also raised was whether the appellants were in effect asking for a declaration about a matter not arising under the Integrated Planning Act, and therefore not within the jurisdiction of the Planning and Environment Court, but probably within the jurisdiction of another Court.
Judge Kingham was not satisfied that the appellants had sufficiently stated the relief they were claiming so that the issues could be properly identified, (T1-14). Her Honour said the respondents had "well founded concerns that the scope of the argument has increased as a result of the appellants written submissions", (T1-14, 15). Her Honour said that "a clear statement of the orders sought ... will help focus everybody in on the critical issues", (T1-15). Her Honour also said (T1-18), that the expanded outline of argument had not clarified what it was that the appellants wanted her "to say about the actions of the trust or the actions of the Council."
Dr Moon conceded that it was "responsible", of the respondents to ask for extra time but submitted, in effect, that no time would be wasted in the long-term. This submission overlooked the fact that a day would be wasted because of the appellants expanded outline.
Dr Moon also conceded before me (T1-53), that the appellants had "done the wrong thing proceduraly" but had been trying to help, and in the end, he submitted, "everyone benefited." With respect, I cannot agree.
Her Honour made the following orders:
1.That the preliminary hearing be adjourned to the 30th of January 2009.
2.That the appellants file and serve a supplementary outline of argument specifying the declarations or orders sought by the 28th of November 2008.
3.That the respondents file and serve written submissions in response to the appellants written submissions dated the 20th of November 2008, by the 19th of December 2008.
4.That the costs of the respondents of and incidental to the appearance on the 21st of November 2008, including the costs of two counsel retained by the respondent, be reserved.
Before her Honour made these orders, Dr Moon complained that "the time situations, the push, push, push and that doesn't seem to be fair", [sic] (T1-19).
The appellants filed their supplementary outline of argument on the 25th of November 2008. In it, for the reasons referred to by Dr Moon in his affidavit filed the same day, they withdrew their argument "that the application by the first co-respondent to the respondent was ultra vires." They further outlined their argument as to the invalidity of the respondent's Planning Scheme and specified the declarations and orders which they sought.
Dr Moon's affidavit is in the following terms.
In light of conversations occurring on 21 November before Her Honour Judge Kingham DCJ in the Planning and Environment Court in Southport, I have discussed the consequences to this appeal with Mr Brian Littleford (co-Appellant).
We were together concerned to learn the view put by Counsel for the First Co-Respondent to Her Honour regarding his view that the decision taken by the First Co-Respondent to apply to the Respondent for a Development Application was a matter for judicial review at a Supreme Court. We became very concerned when Her Honour expressed support for this view. The impact of these conversations have been digested and discussed by us.
I did not appeal either of these matters out of self interest. I have no personal benefit to gain, nor any loss to accrue, from the outcome of the Development Application.
I initiated the appeals because I firmly believed that in the action of seeking a Development Application the First Co-Respondent is neither respecting the purpose, the character, nor the moral basis of the 'gift' of many hectares of freehold land with a 'bird sanctuary' business by Mr Alex Griffiths in 1976. I have reason to believe that my view on this is also felt widely in the locality of Currumbin.
I believe that the Integrated Planning Act 1997 enables me, as a 'token' member of the community, to appeal the decision in the wider community interest.
I have discussed this view with Mr Littleford and I believe he holds a very similar view.
When initially canvassing the topic of Ultra Vires as a basis to address the actions of the First Co-Respondent to Mr Littleford, I expressed a view that the decision by the First Co-Respondent to apply to the Respondent appeared facilitated by the Integrated Planning Act, 1997, in that any property owner could apply for a Development Application.
I also expressed a view that as the land the subject of these appeals was also bound by provisions in the Currumbin Bird Sanctuary Act 1976, there was both a duty and an obligation on the trustee of these lands - the National Trust of Queensland (the First Co-Respondent) - to ensure the provisions and restrictions of the Currumbin Bird Sanctuary Act 1976 were fulfilled. I indicated that I believed the Judicial Review Act 1991 obligated the First Co-Respondent to be bound by the provisions of the Currumbin Bird Sanctuary Act 1976 when making a decision - here a Development Application.
Mr Littleford expressed views of a similar nature, but based on different reasoning.
I believe that a public entity undertaking an action that involves the public is duty bound to disclose the parameters of any constraints to which they are aware. To that end, I believe that the First Co-Respondent did not dutifully and properly disclose to the Respondent that the land the subject of these appeals is affected by the Currumbin Bird Sanctuary Act 1976.
I also believe that disclosure of constraints because of the Currumbin Bird Sanctuary Act1976 should have been provided, and most probably under the heading of 'Site Analysis' within the Development Application.
In preparing the reasoning for asserting the 'decision' by the First Co-Respondent was Ultra Vires, I then and now believe that there is a nexus between failure to disclose the fact of the Currumbin Bird Sanctuary Act1976 in the Development Application and the fact of making a Development Application.
I believe that this 'nexus' facilitates an appeal to the Environment and Planning Court under the Integrated Planning Act 1997 regarding a failure to fully disclose information relative to the making of a Development Application.
I believe the 'right' to argue the 'nexus' relationship in the Planning & Environment Court is, in fact, facilitated under section 10 of the Judicial Review Act 1991. And, section 4.1.2(1) of the Integrated Planning Act 1997 empowers the Planning & Environment Court to hear this 'nexus' in the Planning & Environment Court.
Notwithstanding my belief, I discussed with Mr Littleford the likely implications flowing from the discussion between Her Honour and Counsel for the First Co-Respondent on the 'appropriate' venue for an argument as to the 'nexus' relationship.
Mr Littleford and I have both expressed to each other the considerable pressure of the 'rights' reserved to the First Co-Respondent to claim costs in relation to these appeals.
Mr Littleford and I are both retired and living on pensions. Our capacity to bear costs of the magnitude that may be invoked by a Court is way beyond our means.
We have both read section 4.1.23 of the Integrated Planning Act 1997 regarding costs and cannot fathom why the matter of 'costs' is reserved.
Mr Littleford and I have decided that because Counsel for the First Co-Respondent and her Honour concurred on the subject of where the correct venue might be for deciding the issue of Ultra Vires currently under consideration, it is probable that our capacity to argue otherwise would not be influential.
Given this, we reasoned that if a decision was sought on the matter of Ultra Vires, and before any discussion took place, a decision was made by Her Honour that another venue was, in fact, the appropriate place, we both came to the conclusion that it is likely that Counsel for the First Co-Respondent may be in a better position to argue costs in relation to preparation to the substantive argument.
While we both believe there is both merit and validity to our (substantive) argument, we feel obligated to cease our endeavours in case we are burdened with such costs.
In order to curtail the potentiality of costs being awarded against us for the reasons outlined above, we also reasoned that maintaining the proceedings against the Respondent appears on 'firmer ground' and hence more sound and if successful would provide the same outcome.
To that end, we together decided to amend the Outline of Argument by way of Supplementary Argument to delete the argument against the First Co-Respondent."
The matters were next mentioned on the 8th of December 2008 before me. Dr Moon then said (T1-4) that the appellants withdrew their argument that the first co-respondent lacked power to make the applications to the respondent "in fear, based on costs." The appellants seemed to be reconsidering their withdrawal of the application involving the first co-respondent. This concerned Mr Skoien, of counsel for the first respondent,
(T1-6, 7). I indicated to the appellants that they could not resurrect their abandoned point in circumstances where the other parties had acted on the basis of their withdrawal of the issue and Dr Moon agreed "in principle", but still appeared to be hedging his bets, (T1-8, 9). I indicated to Dr Moon that the appellants were limited to the balance of their argument. Dr Moon said he appreciated that and "understood" that the issue involving the first co-respondent would not be argued on 30th of January 2009 because it had been withdrawn, (T1-9). Mr Litster then sought to confirm that it would "not be necessary for submissions to be prepared dealing with the aspect of the matter that challenges the capacity of the National Trust to make the application to the council",
(T1-9). I indicated that the point had been abandoned. There was then this exchange, (T1-10):
"MR LITSTER: Yes.
MR MOON: Apparently, yeah.
MR SKOIEN: Yes.
HIS HONOUR: No, not apparently. You have.
MR MOON: [Indistinct] our hearts.
HIS HONOUR: Yeah, but you did abandon. It has been abandoned.
MR MOON: In this technical sense if we have to be bound by the rules of the Court, we have to be bound by the rules of the Court.
HIS HONOUR: Okay. All right. Well, it is abandoned. Thank you. Well, the matter will remain where it is."
The preliminary hearing, limited to the validity of the Planning Scheme, took place before Judge Kingham on the 30th of January 2009. During that hearing Judge Kingham said in relation to Dr Moon's affidavit, filed on the 20th of November 2008, which I've already set out, (T1-19, 20, 21):
"HER HONOUR: Yes. Dr Moon, I indicated earlier that I would just adjourn briefly so that this material that I have before me could be looked at by both counsel, and I'll do that in a moment.
I do want to, just in very, very brief terms, though, say something about the document 31 on the Court file, which is your affidavit filed on the 25th of November 2008. And, really what I want to say is that, I am somewhat perplexed and concerned that some of the material in that affidavit could be taken - could be read to mean that I had formed a view about two matters.
That is, about the - whether this Court had jurisdiction to
determine the preliminary point raised about the National
Trust's power and also as to the issue of reserving the costs
of the hearing, that in doing so I had somehow formed a view
as to whether such costs should be awarded.
Now, the transcript speaks for itself as to what was said by
all parties and by me on that occasion and I won't seek to
answer any of the points that are made in your affidavit, but
I do want to place on the record that there was certainly no
intention on my part - I don't believe I did, but I certainly
did not intend to - give the impression that I had formed a
concluded view on either the issue of jurisdiction or the
issue as to costs and I raise that because it appears that you
have taken things that were said and then acted in a certain
way on the basis of that so I'd place that on the record.
During the break you can consider that. If you're wishing to
adopt any other approach to that preliminary point I'll give
you the opportunity to raise it then.
DR MOON: Your Honour, if we have a break my mind won't be
focused on what you're just saying now. I would like, if I
could, to make a comment if it's okay with you.
HER HONOUR: Uh-huh.
DR MOON: When you made your determination on the 21st of
November------
HER HONOUR: Which was to adjourn.
DR MOON: Yes, to adjourn.
HER HONOUR: Yes.
DR MOON: And that there was discussion in respect to
jurisdiction on the co-respondent's material and there was
comment in respect to costs both Brian and I walked away
thinking what is on that affidavit pretty well.
HER HONOUR: Mmm.
DR MOON: We were aggrieved, to be frank, that at the time we
didn't have the expertise to be able to say on the day if
there's an issue of costs can we have the preliminary point of
whether this is the right jurisdiction or some other discussed
first and then if it is then the collection of material to
defend that point done later. Had it been the case then the
matter of working out jurisdiction wouldn't have been a big
issue in respect to costs.
We both felt that the ogre of costs was so overwhelming for us
that we have no choice but to go down the path we did. It may
not necessarily have been your intention and I don't imply
that - or assert that it is, but that's how we understood the
conversation.
HER HONOUR: Well, Dr Moon, I do not propose to enter into a
further exchange about the issue. I've placed on the record
the matters that I wish to place on the record. As I said,
during the break you can consider what I've said and if you
wish to take any other action or put any other argument before
me about the preliminary point I will give you the opportunity
to do that, as I would have had you sought that when the
matter was last before me, and, as I said, the transcript
speaks for itself as to what took place and, whilst it is the
obligation of this Court when there is a self-represented
party to appropriately assist in relation to procedure, it is
not the obligation of this Court - and, in fact, it is
contrary to the requirement that I am an impartial
decision-maker - that I give this sort of assistance that I
think is implied by some of the concerns raised in your
material and what you've just said.
As I said, the way we'll deal with this matter now is that it
is closed as to the matters raised in affidavit which is
document 31 and - but if you if you wish to reopen the legal
point that you were seeking to agitate in relation to the
National Trust that's a different matter and if you wish to
say anything to me after the break about that then I will give
you the opportunity to do so, although I see Mr Skoien looking
reasonably alarmed at that as a prospect. No? Good. All
right. Well, we'll adjourn, say, for 15 minutes."
Shortly after the adjournment, when the Court resumed, the following exchange took place between Dr Moon and Judge Kingham, (T1-24, 25):
"DR MOON: Your Honour, in respect to the affidavit of which we are talking about prior to that break, I don't know how to go about it, but I would really like to see the issue of
jurisdiction argued separately. However, I recognise that
where we are today looking at the Gold Coast City Council. Is
there any way in which we can reserve the right to consider
that issue of jurisdiction of whether the Planning and
Environment Court has that power to consider that matter after
this one's been heard?
HER HONOUR: I cannot give you legal advice on the process
that you can adopt. What I can say to you is that at this
point you've filed a document which abandons that argument.
Today's proceedings cannot deal with that argument.
DR MOON: I appreciate that.
HER HONOUR: If you wish to withdrew the abandonment and we
list that argument I can list a date where you can make that
application. You will need to consider how you do that and if
appropriate obtain your own legal advice on that. I'm not
going to take the matter any further. It's entirely
inappropriate for me to do so.
DR MOON: Okay. So it's in my interests rather than to try
and do something right now------
HER HONOUR: Well, what I'll - what I'll-----
DR MOON: -----talk to - talk today's stuff through, digest it
and then go and find somebody who can give me legal advice and
then if needs be then seek to have that matter heard at a
future time.
HER HONOUR: What I will say is that I certainly won't
entertain any argument on - about the matter that you've
abandoned. I will note that you wish to reconsider that
abandonment in due course.
DR MOON: Mmm.
HER HONOUR: So that is on the record.
DR MOON: Okay.
HER HONOUR: It will be a matter for you then after today's
proceedings to obtain what advice you think is appropriate and
to then if you do have an action that you - or an application
that you would like to make at later time then you can
certainly file the appropriate document and application in a
pending proceeding and we can take it from there.
DR MOON: Thank you.
HER HONOUR: I certainly can't give you any further advice
other than to say I note your - that you will be reconsidering
your abandonment.
DR MOON: Thank you.
HER HONOUR: And at least to that extent the respondent
affected by that most directly is on notice that there may be
an argument that you be given leave to withdraw that
abandonment. That is - you know, that's an argument for
another day.
DR MOON: Thank you, thank you."
At the conclusion of the hearing judgment was reserved.
On the 25th of February 2009 before judgment was delivered, the appellants filed an application to have reinstated what they had previously withdrawn. That application was in the following terms:
"We seek to have reinstated that part of the substantive material 'withdrawn' by way of notice in our Supplementary Argument to Preliminary Hearing, dated 25 November 2008.
As indicated in conversation before Her Honour Judge Kingham DCJ, on 30 January last, we submitted that we had inferred a view from an exchange between Her Honour and Counsel for the Co-Respondent that took place on 21 November 2008.
The view we formed led us to withdraw part of the substantive material to be presented at the Preliminary Hearing on the matter of whether the Co-Respondent was Ultra Vires (that is, had a power to make a development application).
The reasoning for this view (to 'withdraw') was expressed in an Affidavit by Dr Moon submitted alongside the 'Supplementary Argument' dated 25 November, last.
We also note that before any decision regarding reinstatement of the 'withdrawn' substantive material be made, argument need be undertaken to determine whether the Planning & Environment Court is, in fact, an appropriate jurisdiction to hear argument relevant to the 'withdrawn' material as a Preliminary Hearing.
We assume a date will need to be set to hear argument as to relevance and/or jurisdiction of this 'Application to Reinstate'."
The application was emailed to the other parties on the 27th of February 2009 at 7.38 a.m.
Later, on the 27th of February 2009, Judge Kingham delivered judgment upholding the validity of the Planning Scheme. Of relevance to the present application, Judge Kingham said:
Dr Moon represented himself and Mr Littleford. He prepared lengthy and comprehensive submissions upon which they relied. Whilst he is no stranger to this Court and, over a number of years, has given detailed consideration to how the scheme applied to numerous development proposals, the point raised against Council is one of law not merit. Dr Moon is not a lawyer. It is not surprising, then, that Dr Moon found it difficult to precisely articulate his legal argument, which substantially shifted ground during preparation for the hearing. Because the parties facilitated argument of the substance of the challenge, it did not stall at procedural hurdles which could well have been raised in its path."
The first co-respondent conceded it could not submit that Judge Kingham found no merit in the appellants argument.
After judgment was given on the 27th of February, Judge Kingham listed the appellants application for reinstatement for hearing before Her Honour on the 13th of March 2009.
On the 12th of March 2009 the appellants served the following document on the other parties.
"On the Order of His Honour Judge Brabazon QC DCJ made on 14 July, 2008, the matters 70, 71, 167 and 168 of 2008 ("the Appeals") are to be determined together by way of Preliminary Hearing.
However, following conversations made during an exchange between Her Honour Judge Kingham DCJ, on 21 November last, and Counsel for the Co-Respondent, we (the Appellants) interpreted this to mean that we could have exposed ourselves to significant legal costs. On that interpretation we signalled that we wanted to withdraw from that part of the proceedings so as not to incur these costs.
Upon discussions between ourselves and Her Honour Judge Kingham DCJ on 30 January last, we sought leave to reverse that position such that the substantive matter be heard.
On 25 February, last, we submitted an 'application to reinstate'. On this, we omitted any submission for declarations.
The declarations we seek are:
(a) it is declared that land acquired by the National
Trust of Queensland [NTQ] for use as the Currumbin Bird Sanctuary [The Sanctuary] (trading as the Currumbin Wildlife Sanctuary [CWS] following the promulgation of the Currumbin Bird Sanctuary Act 1976 for the purposes of the Currumbin Bird Sanctuary Act 1976, is part of the Currumbin Bird Sanctuary;
(b) it is declared that the 'purpose of the sanctuary'
as written at section 2(1) of the Currumbin Bird
Sanctuary Act 1976 means:
(1) primarily, land as a "refugee and habitat for
wild-life"; and
(2) a venture of limited commercial activities
specifically to support customer enjoyment and to also provide revenue to primarily enhance the area of "refuge and habitat for wild-life" and secondarily to provide the means by which customer enjoyment could be serviced;
(c) it is declared that housing is not an activity
concomitant with 'the purpose of the sanctuary' as is meant in the Currumbin Bird Sanctuary Act 1976, and the National Trust of Queensland as trustee of The Sanctuary [CWS] has no power to introduce or pursue housing for a commercial or associated 'purpose of the sanctuary'.
The orders sought are:
(a) That the decision made by the Gold Coast City
Council on 19 November 2007 in relation to a Development Application for property situated at 31 Millers Drive, Currumbin (being Lot 1 on RP192133) be overturned;
(b) That the decision made by Gold Coast City Council on
3 December 2007 in relation to a Development Application for property situated at 568-570 Gold Coast Highway, Tugun (being Lot 48 on RP168721, Lots 50 and 51 on RP91999, Lot 49 on WD4647) be overturned; and
(c) the domain characteristics of lots:
Lot 1 on RP192133,
Lot 48 on RP168721,
Lots 50 and 51 on RP91999, and
Lot 49 on WD4647
be reverted to that which existed immediately prior to the decisions cited in paragraphs 2.(a) & 2.(b) above."
Before me, and in his affidavit filed on the 19th of February 2010, Dr Moon expanded on these matters.
Argument on the application took place on the 13th of March 2009. Judge Kingham refused the appellants application and gave the following reasons:
"HER HONOUR: This is an application by Dr Moon and
Mr Littleford for leave to withdraw their abandonment of an application that the Court declare the co-respondent, The National Trust of Queensland, that the actions of the National Trust of Queensland in consenting to the subject development applications being made was ultra vires.
The application was initially argued on two grounds, but the first of those was abandoned during the hearing, that is,
Dr Moon initially argued that their attempts to abandon the point was ineffective or procedural irregularity. As that point was abandoned, I pay it no further consideration in these reasons.
The second ground related to their misapprehension of the effect of the hearing conducted on the 21st of November 2008, and their assessment of the consequences that might flow, if they were unsuccessful on the point raised against the National Trust.
Specifically, the appellants were concerned about their potential exposure to an order for costs, if the Court found, as The National Trust argued, that the Court does not have jurisdiction to make the determination sought.
I have concluded that this Court does have the power to grant the appellants leave to withdraw their abandonment, if it considers the interests of justice so require. Whilst there is no specific power in either the rules of the Planning and Environment Court or in the Uniform Civil Procedure Rules, which deal precisely with this situation, there are a number of provisions of the Uniform Civil Procedure Rules which are analogous, particularly rules 375 and 377.
There is also the point that the appeal itself has not been abandoned, either in whole or in part; rather, an issue raised in the course of the appeal in relation to one of the parties has been. So I am satisfied that the Court's power to make directions about the conduct of a proceeding is sufficiently broad, in the context of procedures for appeals in this Court, to grant the leave sought if it is in the interests of justice to do so.
I am not persuaded, however, that it is appropriate to exercise discretion in the appellants' favour in this case for the following reasons. Firstly, the decision to abandon the point was a considered one made by the appellants after reflection and after they had the opportunity to consider the matters canvassed by the National Trust in its counsel's written outline of argument, and the point that was raised there was the question of the Court's jurisdiction to determine the preliminary point.
It was raised by The National Trust of Queensland in the outline filed, I believe, on the 27th of October 2008, almost one month before the preliminary point was to be heard on the 21st of November.
...
HER HONOUR: So it was raised some time, almost a month, say three weeks before the argument was to take place.
At the hearing, on the 21st of November, the question of the Court's jurisdiction was noted as an issue, and the transcript clearly records that I expressed no concluded view on that point.
Counsel for The National Trust also noted on that occasion his instructions to reserve his client's position to apply for an order for costs if the point was ultimately decided against the appellants. No view was expressed by the Court about that matter.
On the 25th of November 2008, Dr Moon filed material abandoning the argument raised against The National Trust. To the extent that the affidavit of Dr Moon alleges that a view was expressed in support of the National Trust counsel's argument, I have earlier placed matters on the record and I will make no further comment about that. The transcript, I believe, speaks for itself.
It is clear from Dr Moon's statements during the hearing on the 21st also that he did have in broad terms an understanding that costs could only be awarded in circumstances outlined in the Integrated Planning Act itself.
There is no evidence before me that the appellants sought to obtain a transcript to satisfy themselves about what was said on the 21st of November or that they sought advice about what was said or about the costs consequences that might flow.
Nevertheless, it is evident from the material that it was a considered and deliberate decision. The fact that it may have been misconceived or ill-informed, whilst that is something I can and have taken into account, cannot be considered to be determinative.
I should also state that in this regard I have taken into account the appellants' status as self-represented parties. I also accept, while there is no evidence to this effect before me, I accept Dr Moon's statement that he and his co-appellant have limited means, and certainly I accept that the prospect of an order for costs is a serious matter that any litigant in this Court should have regard to in deciding how they should conduct themselves during these proceedings.
The second reason I have decided not to exercise discretion in the appellants' favour is delay. It appears that by the 8th of December, at least, when the appellants were before Judge Wall, there was an apparent change of heart on the appellants' part. The matter of the abandonment was raised before Judge Wall. It is arguable that Judge Wall has already ruled on the question of withdrawing that abandonment. He made a statement to that effect, and there has been no appeal from his decision.
However, I have not decided this application on that basis. It is not clear to me, from the transcript, that an application to withdraw the abandonment was actually made, and I do not take from Judge Wall's use of the term "ruling" that there was a formal application before him that he had decided.
But certainly, at that hearing, the need to act expeditiously was clear, and further, any misapprehension that the appellants may have had about the position with reserved costs was clarified by the very clear statement that Judge Wall made about the effect of such a decision.
There is no suggestion, or no suggestion has been to me, that what Judge Wall said, on that occasion, was misunderstood. There is also no evidence that any steps were taken after the 8th of December to obtain advice about procedure, and it appears on the evidence before me that the matter rested until the terms of Dr Moon's affidavit were raised by the Court on the 30th of January. On that occasion, my purpose in doing so was to correct a misstatement in Dr Moon's affidavit that I had expressed support for an argument made by The National Trust's counsel.
I am not satisfied that there has been a reasonable explanation for the delay since at least the 8th of December until the day before I handed down my decision on the preliminary point raised against the first respondent, the Gold Coast City Council.
From the Bar table, Dr Moon made statements about attempts to obtain free legal advice. Even acting upon those statements, I am not persuaded that is sufficient reason to exercise discretion in the appellants' favour.
Thirdly, I have taken into account the prospects of success in the point that Dr Moon and his co-appellant wish to agitate. The declarations sought do raise matters which go well beyond the scope of matters done or to be done under the Integrated Planning Act. It does not seem to me, on the basis of the argument I have heard today, that section 4.1.21(1)(c) gives the Court power to make the declarations sought.
The prospects of the appellants succeeding in their argument that the Court has jurisdiction would have to be described as not strong.
Fourthly, I have had regard to the issue of prejudice. The respondents did act on the appellants' abandonment of the preliminary point, as did the Court. Counsel for The National Trust did, at the hearing before Judge Wall on the 8th of December, indicate that if the appellants wished to re-agitate the particular point taken against his client, they should do so quickly, so that the matter could be dealt with on the 30th of January. That did not take place.
Instead, argument proceeded on the 30th of January without reference to the preliminary point against The National Trust, and further costs have been incurred by all parties in arguing this application today.
On the other hand, there is no prejudice that I can see to the appellants if this application is refused. Even if I am wrong and this Court does have jurisdiction to entertain the point raised, my decision today does not prevent the appellants seeking relief in an alternative jurisdiction.
There is no private right or, as far as I can see, any remedy available to the appellants which is affected by my decision today. Taking those matters into account, I have decided to refuse the application to withdraw the abandonment of the preliminary point raised against The National Trust of Queensland."
Before me, Dr Moon conceded that the application to reinstate caused the other parties to incur costs resisting it.
Her Honour then made orders in relation to the substantive hearing of the appeals which was listed for four days commencing on the 28th of July 2009. The parties, in particular the respondents, thereafter prepared for that hearing.
By letter dated the 16th of June 2009, the appellants advised the other parties as follows:
"Re: Littleford & Moon Vs GCCC & Ors P&E Appeals 70, 71, 186 and 187 of 2008
This letter advises of our discontinuance of these appeals, and also provides an explanation.
Following the decision by Judge Newton on 12 June, last, to allow us to add an additional matter to the disputed issues, we met yesterday on this issue. During our discussions it became apparent to us that we each had been recently encumbered by a change to the level of support we believe we require to properly execute the appeal. We address each of the matters before us independently.
Family related issues
In the case of Brian, in recent weeks, and in the case of Bruce, in recent days, we have each incurred a major change in the time we need to address family and family related issues. We are both pensioners, and would ordinarily appear to not be encumbered by time issues. However, we both place great stead in our relationships with older and younger members of our families. And, our older and younger members of our families place much expectation that we will spend time supporting them as may be needed.
During our discussion, we each recognised that the time needed to proceed further with this appeal will compromise the time we now need to address recently emerging family problems.
We both concluded that our families are more important than our pursuit of this civic issue.
Local citizen support
When we embarked on this appeal, we had much support from residents of the area affected by the decision under appeal.
On the disputed matter of 'flood', we had planned on relying on statements from residents of long standing in Farrell Drive who could exactly cite the heights of the 1974 and 2005 flood events. From this information, we believe that the height of the Q100 seriously underestimates the fact of flooding in flat Rock Creek. In recent weeks, the person central to establishing the heights of past flood events has been admitted to hospital and will unlikely be able to offer the support previously advised.
On the disputed matter of 'traffic', again we were to rely on residents in proximity to each site to provide support. The central person for our observations to traffic at the corner of Millers Drive and Crest Drive has now moved out of the state.
There is no doubt in our minds that we could 'battle on' convincingly. We recognise that the loss of these two people central to our appeal will diminish our prospects. But, the issue for us is that the time needed to now 'cover' for the loss of this central information will be considerable. And, we are now each faced with significantly less available time.
We concluded that we really do not have the time to properly provide material of a sufficient and convincing nature.
Fear of costs
We have placed on record our feelings regarding the matter of potential costs, and the intimidation this has weighed upon us.
Given our recognition of reduced time available to address the appeal, coupled to the 'unavailability ' of two residents who we believed would provide compelling reasoning, we decided that the issue of potential costs is one we cannot brush aside.
While we were prepared to pursue the appeal on the basis of civic morality, we believe these changed circumstances compel us to discontinue the appeal.
Next step
We will submit to the Southport Court Registry, a Notice of Discontinuance."
A notice of discontinuance was filed in each appeal the next day, the 17th of June 2009.
Orders sought by respondents
The respondents and the first co-respondent ask for orders that the appellants pay:
(a) their costs of and incidental to the appeals.
(b) in the alternative, their costs:
(1)of and incidental to the review on the 8th of September 2008;
(2)of and incidental to the review on the 30th of September 2008;
(3)of and incidental to the hearing on the 21st of November 2008;
(4)thrown away by the adjournment on the 21st of November 2008;
(5)of preparing for and appearing at the hearing of the appellants application for leave to withdraw their abandonment of the preliminary point against the first co-respondent.
The respondent also asked, in the alternative to (a),:
(1) for its costs of responding to new material introduced by the appellants on the 22nd of November 2009, and
(2)of undertaking disclosure and preparing for hearing in respect of that part of the proceeding which related to the appellants assertions in relation to hydraulics or flooding.
Conduct of the appellants
Before me the appellants conceded that on a couple of occasions they didn't comply with timelines (T1-35), but submitted that by the time they understood what they had to do, time had expired (T1-36). They conceded (T1-37), that they "did do the wrong thing on a couple of occasions of not meeting deadlines but it's not for lack of trying." They submitted (T1-38), that they tried to comply as best they could with their "limited knowledge of the situation." They contended (T1-38), that they "felt overwhelmed" by demands for production of material. Dr Moon said (T1-58), that they had "minimal understanding of Court procedures" and they tried the best they could.
In his affidavit filed on the 19 of February 2010, Dr Moon said (paragraph 9) they "tried to the best of our capability to understand the procedural requirements of the Court and comply with those requirements" and that "any act of non-compliance regarding procedural requirements was unintentional ... and the implications of same would have been minor."
On the 20 November 2008 (T1-16), Dr Moon said he and
Mr Littleford "were both pensioners in our retirement years." He re-iterated their status as "pensioners" in his affidavit filed on the 19th of February 2010, paragraph 2, page 3.
I do not accept that the appellants tried seriously to comply with the Court's procedural requirements, in particular those specifying dates by which steps were to be taken. They were aware of timeframes and dates by which steps had to be taken. They were also, I find, aware of issues and arguments relating to issues and knew when their arguments went beyond the issues which had been particularised. I am not satisfied they are as naive as they sought to make out, nor do I consider they did not appreciate and understand that default by them in complying with procedural requirements set by the Court, including time limits for taking particular steps, would result in the other parties unnecessarily, and as a result, incurring costs. On a number of occasions they breached orders and failed to comply with procedural requirements and, I find, they would have known that the respondents would, as a result, be likely to be inconvenienced, hindered, and put to unnecessary and unjustified costs and expense. The fact that they may not have appreciated the full extent of the costs consequences to the respondents of their conduct is no reason why they should not have to compensate the respondents for costs they incurred as a result. Even if the appellants were as innocent and as blameless as they contend, I still consider they should, to a certain extent, have to compensate the respondents for costs incurred as a result of their conduct in failing to comply with simple procedural requirements. I cannot accept that the appellants had only limited knowledge of the situation. I do not accept that their knowledge of Court procedures in relation to time limits is only minimal. What was expected of them was not difficult to comprehend, or understand, or comply with.
I agree, subject to what I have just said, with what Judge McLauchlan QC said in Hall v. Nanango Shire Council and Others (2006) QPELR 278 at 279.
"As already noted, the Appellants were not legally represented in the proceedings, and they did not correctly appreciate certain matters.
Their conduct was therefore less blameworthy than would have been the case had they been legally represented, but it appears to me that the principal thrust of the provision is to compensate an innocent party for costs pointlessly incurred, rather than to mark the Court's disapproval of the conduct of the proceeding by the other party. I think, therefore, that the ignorance of the Appellants in relation to the matters referred to above cannot be prayed in aid of a defence to a costs order."
The "provision", referred to was section 4.1.23 of the Integrated Planning Act.
It is correct to describe costs as compensatory, see Mudie v. Gainriver Pty Ltd (2003) 2QdR 271 at 282, para [30].
Notwithstanding the submissions of the respondent and the first co-respondent, I am though unable to characterise the appellants conduct generally in instituting and pursuing their appeals as frivolous or vexatious so that they should pay all of the respondents' costs. I accept that the appellants were genuine and serious about the appeals and with one exception, which I will deal with later, I am unable to conclude that they behaved in a frivolous or a vexatious manner in the way in which they instituted and pursued the appeals such that they should have to pay all costs incurred by the respondents. Their overall conduct could not be characterised as lacking seriousness or sense and the mere fact that it may generally have annoyed the respondents is not by itself enough to characterise it as vexatious otherwise all litigation could be so described because the opposite party is annoyed by what is happening. More than mere annoyance to the other party is required before conduct can be categorised as vexatious. Dictionary definitions should not always be taken literally.
Costs which the appellants should pay
I do though consider the appellants should pay costs as follows:
(a) 8th of September 2008
The appellants were late in filing their material and outline of argument. The outline of argument went beyond the further and better particulars provided by the appellants on the 24th of July 2008 and raised for the first time the alleged invalidity of the respondent's Planning Scheme, and this required the potential involvement of an additional party upon whom material had to be served. In short, the appellants failed, as they were required to do, to properly particularise the issues raised for hearing on the 21st of November 2008. Matters which should have been resolved by the 8th of September were not and amendments were required to the notices of appeal. The appellants conduct required the respondents to apply for and obtain an adjournment of the proceedings and thereby incur costs.
(b) 30th of September 2008
The review on this occasion was necessitated by the issue alleging invalidity of the respondent's Planning Scheme and was occasioned by the default of the appellants in that they went beyond the particular issue raised in the notices of appeal. This was new material which required the respondents to incur costs in dealing with it.
(c) 21st of November 2008
The hearing went off because of the lengthy additional outline of argument/submissions of the appellants delivered the day before and which raised new issues. Judge Kingham adjourned the hearing because of default by the appellants in complying with the Court's procedural requirements in that the appellants did not confine themselves to the issues previously particularised; they introduced new material as a result of which the respondents incurred costs and required an adjournment of the proceedings. The default by the appellants meant that the matter could not be heard that day and was adjourned for hearing on the 30th of January 2009.
(d) New material introduced on 22nd of January 2009
On the 22nd of January 2009 the appellants served on the respondents their final submissions for the preliminary hearing which had been filed on the 19th of January 2009. I accept the respondent's submission that the appellants submissions raised for the first time "new facts/evidence and allegations as to the respondents compliance with the statutory requirements for the making of a planning scheme" (Exhibit 3, paragraph 40), and as a result the respondent incurred costs in addressing this new material as stated in Exhibit 3, paragraphs 41 and 42. The respondent does not appear to have raised this matter before Judge Kingham on the 30th of January 2009 but the additional outline of argument went beyond the terms of those filed on the 20th of November and the 25th of November 2008, and did in fact raise new matters which the respondent had to deal with. To this extent it introduced new material which caused the respondent to incur costs in dealing with it.
(e)Application for leave to withdraw abandonment of issue
This was a new issue which arose as a result of the introduction by the appellants of new material, namely the application filed on the 25th of February 2009 and the document served by the appellants on the respondents on the 12th of March 2009, in circumstances where the particular issue involved had previously been abandoned by the appellants. As a result the respondents were required to incur costs in preparing for and appearing at the hearing of the appellants application. Dr Moon agreed
(T1-51), that the application to reinstate the abandoned issue caused the other parties to expend money resisting it.
(f) Hydraulics or flooding issue
Primarily this involves costs incurred by the respondent in relation to the compliance by the respondent with its obligations as to the disclosure of documents after the 13th of March 2009 and up until the appellants discontinued the appeals as a result of the appellants allegation in paragraph 5.2.3 of the mediation agreement dated 28th of July 2008, namely, "5.2.3 Some properties at Farrell Drive, which are within the RD1 designation, have been unable to achieve duplex development as a result of the council's flooding concerns."
By letter dated the 1st of April 2009 the solicitors for the respondent requested that the appellants "identify by specific reference to street number and address", which Farrell Drive properties they were referring to.
The solicitors for the respondent wrote to the appellants again on the 6th of May 2009 referring to this request.
"Despite our follow-up correspondence to you on 8 April 2009, we did not receive any substantive response from either of you until 29 April 2009 when we, still chasing a response, telephoned Dr Moon. In that conversation, when Ms Revel Pointon of our office asked Dr Moon, whether he was able to particularise those properties on Farrell Drive to which he was referring, Dr Moon said words to the effect:
'I was referring to the Q100 flood map prepared by Council. At the time of the mediation agreement I had not put the flood lines onto the properties. I believed on reflection that some properties were unable to achieve duplex development permits without stringent conditions.'
In response to Ms Pointon asking Dr Moon whether he was able to identify which properties in particular he believed were affected by such conditions, Dr Moon said words to the effect:
'I was speaking generally regarding the properties, not about a particular property. I believe Main Roads want a covenant to restrict development.'
In the absence of any substantive response from you until 29 April and in view of the due date for exchange of lists of documents being very soon (8 May 2009), we have had to ascertain and review the development application files held by Council for all 30 registered lots on Farrell Drive. That exercise has been time-consuming and resource-intensive.
Our review of the relevant Council files shows that:
1.No development applications for duplex development or similar form of attached development have ever been refused for any property located in Farrell Drive.
2.Development approvals (including building work approvals) for duplex development or similar form of attached development have been issued for 1, 9, 11, 16, 18, 19, 20, 21, 23 and 25 Farrell Drive.
Although the parties are not obliged to exchange lists of documents until 8 May 2009, we attach an early draft copy which lists the Farrell Drive properties referred to in paragraph (b) above. We invite you to inspect the files, sooner rather than later, to satisfy yourself of the above.
In light of:
1.the scope of the flooding issue as particularised in paragraph 5.2.3 of the mediation agreement (noting that you are not permitted to enlarge it as the statements you made in our telephone conversation suggest you have in mind);
2.it being apparent from our telephone conversation that there was no informed basis to your assertion in paragraph 5.2.3 at the time it was made;
3.our review of the relevant Council files disproving the assertion in paragraph 5.2.3;
4.the hydraulic and stormwater management conditions that Council has imposed on the development approvals for Millers Corner and Clarke's Corner; and
5.the email of Dr Moon received 31 March 2009 advising that the appellants do not intend to call expert witnesses for the hearing on 28 to 31 July 2009.
We invite you both to abandon, on record, the flooding issue in paragraph 5.2 of the mediation agreement.
In light of the above, we invite you both, in the strongest of terms, to seriously consider:
1.abandoning, on record, any issues in dispute in respect of which you do not intend to call independent expert evidence, or at the very least the flooding issue as discussed above;
2. obtaining legal advice with respect to:
a.the likely extent of any costs order (which we suggest will be considerable if our client and the Co-Respondent are forced to proceed to hearing without a narrowing of the multitude of issues currently raised); and
b.the potential implications, to you, of a costs order, including advice with respect to the means by which a costs order may be enforced against you.”
The appellants did not narrow or abandon the flooding issue.
The appellants discontinued the appeals on the 17th of June 2009.
I am satisfied that the allegation by the appellants that some properties in Farrell Drive "were unable to achieve duplex development permits without stringent conditions" as a result of concerns by the respondent about flooding was factually incorrect. I agree with Ms Kefford of counsel for the respondent (T1-19), that notwithstanding "attempts to distil the allegation so as to limit the costs that the council would incur in disclosure obligations the appellants made no attempt to narrow the flooding issue."
Before me Dr Moon said (T1-55), the appellants had "spoken to residents in Farrell Drive that say they couldn't do the duplex development they wanted because council had advised them they weren't able to do it and not to put their application in."
He then said that even though he might have used that word "multiple", as in "some properties", he was only informed of one and it had been intended to call the resident involved as a witness. In his affidavit filed on the 19th of February 2010, paragraph 5a, Dr Moon said:
"5.a In relation to flooding we had a resident willing to testify that the Respondent advised them that any development application they may make in relation to their site on the northern side of Farrell Drive would not be approved unless the proposed buildings were elevated off current ground level to above Q100 flood levels - that is, they could not build on fill material."
In these circumstances the appellants were, in my view, obliged to inform the respondent of this fact and identify the relevant property as the position was in fact different to the allegations stated in paragraph 5.2.3 of the mediation agreement. They were obliged to limit the scope of the issue so that the respondent could limit the consequent disclosure it was required to make. This is a procedural requirement of the Court and it is a requirement which the appellants did not comply with. They were asked to particularise, limit, confine, or abandon the issue and they didn't when they should have done so. Alternatively their conduct in relation to this issue was vexatious in the sense of being productive of serious and unjustified trouble. See Mudie v. Gainriver Pty Ltd (No 2) (2003) 2QdR 271 at 283-284. Their attitude was careless, cavalier, smart and deceptive, and productive of much unnecessary and unjustified time and effort for the respondent and its solicitors, and for that it is only reasonable that they should compensate the respondent for the resultant costs incurred.
Relevant statutory provisions
Section 4.1.23 of the Integrated Planning Act so far as is relevant provides:
"4.1.23 Costs
(1)Each party to a proceeding in the court must bear the party's own costs for the proceedings.
(2)However, the court may order costs for the proceeding (including allowances to witnesses attending for giving evidence at the proceedings) as it considers appropriate in the following circumstances-
(a)the court considers the proceeding was instituted merely to delay or obstruct;
(b)the court considers the proceeding (or part of the proceeding) to have been frivolous or vexatious;
(d)a party has incurred costs because the party is required to apply for an adjournment because of the conduct of another party;
(e)a party has incurred costs because another party has defaulted in the court's procedural requirements;
(f)without limiting paragraph (d), a party has incurred costs because another party has introduced (or sought to introduce) new material."
Personal circumstances of the appellants
These are not sufficient to disentitle the respondents to costs. They may mean that the appellants cannot pay, though they do not say so, but that is not a reason why the respondents should not have the benefit of a costs order to which they are otherwise entitled.
The financial burden which the appellants may suffer as a result of a costs order does not, in my view, warrant such orders not being made, see for example, Barristers Board v. Young (2002) QCA 85.
The appellants were, they agree, advised on a number of occasions about the risk of costs orders being made against them. In his affidavit filed on the 19th of February 2010, paragraph 3b, Dr Moon said, "... both Brian Littleford and I were acutely aware that proceeding without a sound and reasonable basis may result in us possibly needing to address the costs of the other parties."
Result
The respondents are entitled to part of the costs they seek.
I order that the a appellants pay the costs of the
respondent and the first co-respondent of and incidental to the hearings on the 8th of September 2008, 30th of September 2008, 21st of November 2008, (but not also the costs thrown away on that occasion as that seems to me to be a doubling up) and of preparing for and appearing on the application to reinstate the abandoned issue.
I also order that the appellants pay the respondent's costs of responding to the new material introduced by the appellants on the 21st of January 2009 and of undertaking disclosure and preparing for hearing in relation to the flooding issue particularised in paragraph 5.2.3 of the mediation agreement dated the 28th of July 2008.
The costs are to be assessed on the standard basis unless agreed. Where two counsel appeared I will certify for two counsel. The issues were such that the respondent was justified in retaining two counsel. The issues raised were sufficiently complicated and important to have warranted the respondent retaining two counsel; a fundamental challenge had been made to the respondent's entire Planning Scheme.
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