Moore v Cairns Regional Council (No 2)

[2011] QPEC 140

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Moore v Cairns Regional Council & Ors (No 2) [2011] QPEC 140

PARTIES:

MARK and KATRINA MOORE
(Appellants)
v
CAIRNS REGIONAL COUNCIL
(Respondent)
R ANGELINI
(Co-Respondent)
RAYMOND TAYLOR, LISA TANNER, DOMINIC CAPLIN, LENE SOFE WOLTHERS, LARS WOLTHERS, GREGORY HONEY, WENDY HONEY, BARRY KNIGHT, CHERYL POWELL, CAROL EATOUGH, LILLIAN DOHERTY, FRANCIS DOHERTY, DON CAMPBELL, CARLOS PIGINI, REBECCA CLARKE, SERANIE EECEN, TELENA HILL, LEIGH MORITZ, KRISTY BENNETT, MELODY RAWINGS AND SATHYABHAMA DALY (Co-Respondent By Election)

FILE NO/S:

120 of 2010

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Planning & Environment Court, Cairns

DELIVERED ON:

22 November 2011

DELIVERED AT:

Cairns

HEARING DATE:

22 November 2011

JUDGE:

Everson DCJ

ORDER:

Application for costs dismissed

CATCHWORDS:

ENVIRONMENT AND PLANNING – costs- whether proceeding instituted or continued primarily to delay or obstruct- whether parties defaulted in the court’s procedural requirements

Integrated Planning Act 1997 (Qld), s4.1.23
Sustainable Planning Act 2009 (Qld), s457, s802, s819, s820

Mudie v Ganriver Pty Ltd (No.2) [2003] 2 Qd.R

COUNSEL:

Ms T Fantin for the Respondent
Mr D Morzone for the First Co-Respondent

SOLICITORS:

Environmental Defenders Office of Northern Queensland for the Appellant
P&E Law Solicitors for the Respondent
Miller Bou-Samra Lawyers for the Co-Respondent

This is an application by the co-respondent for costs orders pursuant to section 457(2)(a) of the Sustainable Planning Act 2009 ("SPA"), and section 4.1.23(2)(e) of the Integrated Planning Act 1997 (“IPA”).

When the application was filed costs were also sought pursuant to section 4.1.23(2)(b) of IPA on the basis that the proceeding, or part of the proceeding, was frivolous or vexatious. However, Mr Morzone, who appears on behalf of the applicant co-respondent, does not press this particular ground having regard to material which has been obtained from the respondent in the course of preparation for this hearing. He is to be commended for being candid in acknowledging that in light of this material he cannot sustain arguments in this regard.

The hybrid nature of the remaining grounds arises as a consequence of the transitional provisions of SPA that apply to an application in these circumstances. In my reasons for judgment in respect of the appeal itself delivered on 5 August 2011 I noted at paragraph [7] that the application before me was an existing application pursuant to section 802 of SPA which must be dealt with and decided on the basis that IPA continues to apply and that SPA had not commenced. By virtue of section 819(7) and section 820(2) of SPA I therefore apply section 457(2)(a) of SPA in place of section 4.1.23(2)(a) of IPA.

The remaining grounds of the application therefore are as follows. Firstly, it is contended that pursuant to section 457(2)(a) the appeal "was instituted, or continued by the party bringing the proceeding, primarily to delay or obstruct". Secondly, it is alleged pursuant to section 4.1.23(e) that the co-respondent "has incurred costs because another party has defaulted in the court's procedural requirements". Costs are sought against the appellants pursuant to section 457(2)(a) of SPA, and costs are sought against both the appellants and each of the co-respondents by election pursuant to section 4.1.23(e) of IPA.

Turning to the first basis of the application, it is submitted by Mr Morzone that numerous disclosures to the media by the appellants including, in particular, articles in The Cairns Post newspaper on 3 July 2010 and 2 August 2011, and in a television news report on WIN News on 25 May 2010 are such that I ought to conclude that the appeal was instituted and continued by the appellants primarily to delay or obstruct.  It is submitted that it is clear from this and other evidence that has been placed before me that the main concerns of the appellants and the co-respondents by election were water quality and quantity issues, in respect of which they failed to ultimately engage an expert and which they ultimately abandoned on the morning of the second day of the hearing of the appeal.

This, coupled with their intransigent attitude in this regard, it is submitted, is evidence of the appeal being firstly instituted and subsequently continued primarily to delay or obstruct.  This submission ignores the fact that onerous requirements in respect of the preservation of water from the adjoining creek, and in order to ensure water quality in the creek and the surrounding area, were agreed to between the co-respondent and the respondent on 26 July 2011 only days before the hearing of the appeal commenced on 1 August 2011.

There is ample evidence before me which suggests that the appellants and the co-respondents by election held genuine concerns not only in respect of water quality and quantity in the creek which runs through the area, but also in respect of the intensity of the proposed development in a quiet rural locality.  The appellants called experts who gave evidence at the hearing of the appeal in respect of good quality agriculture land and planning, and raised serious issues in both these areas of expertise which required detailed reasons for judgment given by me on 5 August 2011.

What has been presented to me through the evidence is that the appellants and the co-respondents by election were a somewhat disparate band of local residents who perceived the intensity of the proposed development would impact upon their lifestyles in numerous ways. The fact that they did not abandon environmental issues which were the subject of recently negotiated conditions between the co-respondent and the respondent any earlier is not a sufficient ground in my view to enliven my discretion to order costs pursuant to section 457(2)(a) of SPA against the appellants. Indeed, they are, in my view, to be commended for shortening the duration of the hearing of the appeal and ultimately saving the co-respondent from the necessity of discharging her onus in respect of these issues.

Turning to the other basis for the application, namely that the co-respondent incurred costs because the appellants and co-respondents by election defaulted in the Court's procedural requirements, it is submitted by the co-respondent that the appellants and co-respondents by election were obliged to call experts in respect of their environmental concerns and failed to do so, and thereby defaulted in the Court's procedural requirements.  I reject this submission.  At no time in the course of this appeal was any order made obliging any party to nominate and engage any expert.

The Planning and Environment Court has traditionally operated in circumstances where submitters are encouraged to agitate their concerns without the fear of a crippling costs order being made against them.[1] The Court simply does not oblige a party to litigation in this jurisdiction to engage an expert should they wish to agitate a particular position.  Obviously, although costs orders are rare, should parties engage in litigation that is patently inappropriate, such as in circumstances where it is categorized frivolous or vexatious or primarily to delay or obstruct, such parties render themselves liable to costs orders. Such a circumstance is, however, a very different costs scenario to that the subject of the submission before me which would effectively oblige a party to litigation in this Court to engage a suitably qualified expert in support of a position it wished to advance.  It is quite common for parties in this jurisdiction to make submissions based on evidence given by experts called for other parties in circumstances where, of course, each expert undertakes that their duty is primarily to the Court and not to the party which engaged the expert.  I therefore reject the submission that the appellants and co-respondents by election defaulted in the Court's procedural requirements by failing to nominate experts in these particular fields.

[1] See Mudie v. Ganriver Pty Ltd (No.2)[2003] 2 Qd.R.271 at 283.

The context of the application is one in which the appellants did engage some experts, namely a planner and a good quality agricultural land expert, and the ultimate order was that the appeal was allowed in part.  In this context it is difficult to justify the application for costs, however, it would be impossible to conclude that the application was entirely without merit. 

I dismiss the application.