Parcel One Pty Ltd & Anor v. Ipswich City Council & Anor

[2007] QPEC 104

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Parcel One Pty Ltd & Anor v Ipswich City Council & Anor [2007] QPEC 104

PARTIES:

PARCEL ONE PTY LTD, ALLAMBI NOMINEES PTY LTD and GEORGE EDWARD O’DONNELL

Appellants

And

IPSWICH CITY COUNCIL

Respondent

And

THE CHIEF EXECUTIVE, DEPARTMENT OF ENVIRONMENTAL PROTECTION AGENCY

First Co-Respondent by Election

And

BRISBANE CITY COUNCIL

Second Co-Respondent by Election

And

THE MINISTER FOR LOCAL GOVERNMENT & PLANNING

Third Co-Respondent by Election

FILE NO/S:

234/2006

DIVISION:

Planning & Environment Court

PROCEEDING:

Appeal – Application for costs

ORIGINATING COURT:

Brisbane

DELIVERED ON:

23 November 2007.

DELIVERED AT:

Brisbane

HEARING DATE:

20 March 2007, further written submissions/references being provided to 26 March 2007.

JUDGE:

Rackemann DCJ

ORDER:

The Appellants pay the Respondents costs, of 20 March 2007 and its costs thrown away by the adjournment.  The costs are to be assessed on the standard basis.

CATCHWORDS:

Costs – Whether on indemnity basis – Whether costs should include 2 Counsel, including Senior Counsel.

COUNSEL:

Mr J. Haydon for the Appellant

Mr R.G. Bain QC and Mr M. Williamson for the Respondent

SOLICITORS:

MacDonnells for the Appellant

Brian Bartley & Associates for the Respondent

1. The trial of this matter commenced on 19 March 2007.  On the 2^nd day of hearing, the appellant successfully sought an adjournment of the hearing and the respondent applied for an order that the appellants pay the respondent’s costs of that day, together with its costs thrown away by reason of the adjournment.  Counsel for the appellants conceded that the court’s jurisdiction to award costs was enlivened.  I indicated, on that day, that I was prepared to exercise the discretion by ordering the appellants to pay those costs.  The respondent then sought orders that those costs be assessed on an indemnity basis and include the costs of 2 Counsel, including Senior Counsel.  The parties were given leave to deliver written submissions about those matters.  The substantive appeal has now been heard and these reasons are being delivered contemporaneously with reasons for judgment in the primary appeal.

1. The principles relating to an award of costs on an indemnity basis are settled (Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 400-401, Colgate Palmolive Company v Cousins Pty Ltd (1993) 46 FCR 225 at 230, Di Carlo v Dublis & Ors [2002] QCA 225, Grice v State of Queensland [2005] QCA 298). Ordinarily, a court will not order costs to be assessed on an indemnity basis, unless there are circumstances warranting a departure from the usual order that they be assessed on the standard basis. Before ordering costs on an indemnity basis, a court requires some evidence of unusual circumstances or unreasonable conduct. It is important that applications for the order of costs on an indemnity basis not be seen as too readily available where a particular party against whom the order is sought is seen to carry responsibility for the state of affairs calling for a costs order, without some further facts[1].

   [1] See Di Carlo v Dublis & Ors Supra at para 40

1. It was submitted, for the Council, that this was a case of “serial and persistent disregard” by the appellants of their obligations as litigants.  To test that submission, it is necessary to review the circumstances which led to the application for an adjournment.

1. The appeal relates to the Council’s refusal of a proposed landfill in a large lot residential investigation area at Chuwar.  The issues in the appeal included town planning and environmental and amenity impact.  A range of experts were nominated by each of the parties and, in accordance with the court’s usual practice, they were required to meet, and produce joint reports, in advance of preparing individual reports or giving evidence at trial.  This led to improvements being progressively made to the proposal and its intended management, to minimise the risk of adverse impact identified by the experts.  Ultimately, agreement was reached between the various experts in relation to the technical matters and the appeal proceeded, on the adjourned dates, without oral evidence of the experts, save in the areas of town planning and need. 

1. The appeal was reviewed on a number of occasions prior to the hearing.  At those reviews, the appellant was generally more optimistic than the respondent about the resolution of the technical issues by the relevant experts.  On 24 November 2006 the appeal was allocated to the March 2007 sittings and adjourned to the callover for that sittings.  On 16 February 2007 the matter was reviewed prior to the callover, in conjunction with an appeal in relation to a similar nearby proposal.  At that time there was debate as to whether the appeal should remain listed for the March sittings or whether it should be adjourned to the April sittings, with the other matter.  Counsel for the appellant successfully sought to have the matter remain in the March sittings.  Although, at that time, a Site Management Manual (SMM) had not been finalised, Counsel for the appellant said that it would be finalised by 23 February 2007, and a direction was made to that effect.  The parties were also directed to exchange written reports of their expert witnesses and any statements of evidence to be relied upon at the hearing, on or before 9 March 2007.  At the callover on 19 February 2007, the appeal was set down for hearing for 5 days commencing on 19 March 2007.  An amended SMM was delivered on 23 February 2007, but it did not satisfy the respondent’s experts in all respects and so was the subject of further discussion between the experts and amendment by the appellants, to accommodate the residual concerns of the respondent’s experts.  As at the commencement of the hearing, no final agreement had been reached and Counsel for the appellant suggested that the trial continue whilst the experts had further meetings in an attempt to finalise the SMM.  The respondent objected to that course and submitted that, if the matter were then to proceed, it should only do so on the basis of the SMM delivered in accordance with the directions on 23 February 2007. 

1. The other difficulty was that, when the case commenced, Counsel for the appellant produced reports or statements of two witnesses who were to give expert evidence in relation to need.  Only one of those witnesses had participated in the expert meetings and, even then, did not record his views in the joint report in relation to that issue.  The other person from whom expert evidence was to be called had not participated in any expert meetings.  The appellant had not clearly articulated a need issue, of the kind sought to be argued, and neither report had been exchanged, in accordance with the court’s directions.  Counsel for the appellant suggested, erroneously in my view, that one of the witnesses ought not have participated in the joint meeting process, since he was a director of one of the appellants, but that would not, in any event, excuse the late delivery of his statement.

1. Ultimately, the adjournment was requested so that the need issue could be better articulated, the expert meeting process completed and the SMM finalised.

1. It was submitted, on behalf of the respondent, that the conduct of the appellants, through their Counsel, on 16 February 2007 could be properly characterised as “saying what they took to be necessary for the purpose of obtaining the priority and advantage of the trial which they sought” or, in the event that there was a proper basis for the statements made to the court at that time, “they simply had not made good on what they could have done but simply did not do or care to do it”.  I am not prepared to make either finding. 

1. Following the review on 16 February 2007 the appellants did in fact deliver an amended SMM, as their Counsel had said they would.  The appellants’ expert, Dr Johnson, deposed that, in his view at least, the SMM addressed issues raised and recorded in the previous joint report of the experts[2].  At that stage there were some points of disagreement and the generation of further editions of the SMM followed further discussions and communications between the experts.  The appellants, through their Counsel, might have been optimistic on 16 February 2007 to think that the SMM, to be delivered on 23 February 2007, would be the final version, but I am not prepared to find that it was simply a case of saying what he thought to be necessary to obtain the trial date or that the failure to finalise the SMM more promptly was simply a case of the appellant not caring to do that which could have been done. 

   [2] Affidavit of Johnson sworn 20 March 2007 para 3

1. Insofar as the need issue and evidence is concerned, while the appellants are responsible for the state of affairs calling for an adjournment, I am not persuaded that their failures take the case outside those to which the ordinary costs sanction ought apply. 

1. The respondent emphasised the multiple failures by the appellants.  Whilst that is relevant, I remain unpersuaded to order costs on an indemnity basis.

1. The parties accepted that the court has a discretion to, in an appropriate case, order that the assessed costs include the costs of two Counsel, including silk.  It was submitted, for the respondent, that the issues in the appeal warranted the retention of two Counsel and including Senior Counsel.  The appellants submitted to the contrary.

1. When the appeal was filed and issues identified, the case was potentially large, involving many witnesses.  The expert meeting process however, narrowed the scope of the case considerably.  While there remained areas of disagreement amongst some of the technical experts, as at the time the matter was set for a trial to commence on 19 March 2007, the scope of disagreement had narrowed.  The residual issues, particularly the planning issues, involved some importance and complexity. It is understandable that the Council would elect to engage Senior Counsel.  On the other hand, the matter was, in my view, within the competence of a relatively experienced Junior Counsel.  That is, indeed, the way the matter was conducted for the appellants.  On balance, I am unpersuaded that I should direct that the costs, the subject of this order, include the costs of two Counsel, including Senior Counsel.