Primrose & Anor v. Cooloola Shire Council

[2007] QPEC 95

[2007] QPEC 095

PLANNING AND ENVIRONMENT COURT

JUDGE ROBERTSON

Originating Application 2 of 2006

JAMES G PRIMROSE AND JUNE D PRIMROSE	Applicants
and
COOLOOLA SHIRE COUNCIL	First Respondent

and

ALAN F BOYCE and BARBARA F BOYCE       Second Respondents

and

LEE POULTON and BERNICE MILLS         Third Respondents

MAROOCHYDORE

..DATE 09/11/2007

ORDER

HIS HONOUR:  There are two applications before the Court.  The first in point of time is that of Mr and Mrs Boyce filed on the 27th of September 2007; and the second is the council's application filed on the 10th of October 2007.  Both applications seek an order that this Court fix costs pursuant to orders made by me on the 30th August 2007 that Mr and Mrs Primrose pay the costs of both applicants assessed on an indemnity basis.

Mr and Mrs Primrose have been served with both applications and the supporting material, and have responded in correspondence both to the applicants' solicitors and to the Court.   It is clear from Mr Primrose's letters to my Associate, respectively dated the 6th and 7th of November 2007, that he is well aware of today's proceedings.  He has not availed himself of the right to appear by telephone which he has done in the past, and neither he nor his wife appeared in person when the matter was called on earlier today.

The Court's power to make a fixed costs order is derived from Rule 685(2) of the Uniform Civil Procedure Rules, and is now governed by Practice Direction number 3 of 2007.

Both applicants have complied with the Practice Direction.  Both applicants took advantage of the procedure mandated by paragraph 4 of the Practice Direction.  Mr Cogill, the solicitor for Mr and Mrs Boyce, forwarded a copy of an assessment of Mr Graham, a legal costs assessor, to Mr and Mrs Primrose on the 11th of September 2007.  Mr Graham's estimate was $41,206.08.

Mr Baldwin, the solicitor for the council, provided an estimate which was served on the Primroses on the 12th of September 2007, also from Graham Costs, Legal + Forensic, which amounted to $49,187.80.

There was no response from the Primroses pursuant to paragraph 4(b) of the Practice Direction, despite them having received a copy of the Practice Direction with service of the application and supporting material.

Mr Primrose asserts in correspondence that he did write to both solicitors on the 17th of September, and both solicitors deny receiving that letter.  It is not necessary for me to resolve this as the letter dated the 17th of September 2007 clearly does not provide a response pursuant to paragraph 4(b) of the Practice Direction.

The Court of Appeal has recently applied the Rule and the Practice Direction in Cheong Hair Investments Limited v Type and Sandstone Proprietary Limited [2007] QCA 278. In that case there were disputes to be resolved as to the cost estimate, and the costs had been ordered on a standard basis, however, there are some relevant observations of the Court which apply here, to which I will refer later in my reasons.

The history of the matter is adequately set out in the submissions made by the applicants.  On the 19th of July 2007 I dismissed the application made by Mr and Mrs Primrose, and granted leave to all parties to make submissions as to costs.  I observed in those reasons at paragraph 15:

"I do not intend to deal with each and every order sought in the application.  As a whole it is clearly vexatious, that is 'productive of serious and unjustified trouble and harassment…'… in the sense that it is excessively and unnecessarily long, confusing and therefore embarrassing to all respondents…  It is obvious that in relation to Mr and Mrs Boyce, many of the orders sought against them have no utility, as they have not owned the property or had the benefit of the Town Planning permits for some years."

After receiving and considering submissions in relation to costs from all parties on the 30th of August 2007, I ordered that Mr and Mrs Primrose pay the costs of all respondents on the indemnity basis.

The costs assessments prepared by Mr Graham on behalf of both respondents were properly based on a client agreements entered into by both applicants with their solicitors (see Rule 704 subrule (3)(b)); and the Primroses have been provided with copies of those agreements.  I have perused those agreements, and the rates charged appear to be both reasonable and realistic.  Indeed the hourly rate for a solicitor seems modest by today's standards.

Mr Wallace, in his helpful written submission, has referred to statements of authority from other States where a similar Rule has been in use for some time.  As he submits, the Rule, as regulated by the Practice Direction, provides a broad discretion to the Court to fix costs.  Paragraph 3(a) states the Court has a broad discretion to fix costs and will do so where that will avoid undue delay and expense but only provided the Court is confident to fix costs on a reliable basis.

At paragraph 5.13 of his written application, Mr Wallace refers to a relevant statement of principle of Tamberlin J in Nine Films and Television Proprietary Limited v Ninocks Television Limited (2006) FCA 1046 at paragraph 8:

"In fixing a lump sum the exercise is one of estimation or assessment and not of arithmetic calculation or precision … (the) Rule contemplates the application of a much broader brush than that applied on taxation.  The approach must be logical, fair and reasonable and should only be exercised when the Court considers that it can do so fairly as between the parties…"

Having regard to paragraph 3(a) of the Practice Direction it is relevant to note, as Mr Wallace submits, that I am in a much better position than would be a Registrar or a Taxing Officer to comprehend the nature of the proceedings and its history which clearly, in this context, enables me to exercise my discretion in a way that will avoid undue delay and expense, and to be confident to fix costs on a reliable basis.

Mr Primrose, on behalf of Mr and Mrs Primrose, in his correspondence in response to these applications, continues to ignore the fact that his application has been dismissed essentially on the grounds that it was frivolous and vexatious - a decision against which he did not appeal - and to air some of the same grievances he raised in the proceedings which I rejected.  He has made no real attempt to contest the costs estimates, despite being provided with material that explained the basis of the estimate in sufficient detail to permit him and the Court to broadly examine the reasonableness of the estimates.

The observation of the Court of Appeal in Cheong Hair is apposite here:

At paragraph 6 "In relation to the exercise of the power conferred on this Court by Rule 685(2) of the USPR, it is relevant that the issues in question are in short compass and concern matters of broad principle. It is also relevant that the respondent does not advance any reason why this Court should not exercise the power to fix costs. There is therefore, no good reason why this Court should allow the quantum of costs to be fixed in the traditional way rather than to exercise the power conferred by Rule 685(2) in order to save further delay and expense."

In this case the assessments of Mr Graham provides this Court with grounds to be confident that the items claimed by the respondents were reasonably incurred and reasonable in amount.

Mr Cogill, on behalf of Mr and Mrs Boyce, has also provided me with a comprehensive and helpful written submission in support his clients' application.  He also provided a copy of this submission to Mr and Mrs Primrose.

Mr Primrose does seem to contend in some correspondence that the matter was uncomplicated. It is difficult to see how that assists him on these applications as I would have thought that the more complicated the matter (particularly if a large number of costs items are in dispute) the less likely a Court would be to act under Rule 685(2) instead of the traditional method involving detailed taxation.

In any event I agree with Mr Cogill that the scope and breadth of Mr and Mrs Primrose's original application obliged the respondents' solicitors to deal with and to investigate such claims in order to properly protect the interests of the respondents.  The application made by the respondents to dispose of the matter in a summary way certainly save costs in the long term. 

In those circumstances and for the reasons I have stated, I will order that the first respondent's costs be fixed in the sum of $49,187.80, and the second respondents' costs be fixed in the sum of $41,206.08.

Both respondents are entitled to the costs of and incidental to this application to be assessed on the standard basis, and I so order.

Both respondents have requested that I make a fixed costs order in relation to the order for costs of the application that I have just made. 

In the case of the second respondent, Mr Cogill, by letter faxed to Mr and Mrs Primrose on the 7th of November 2007, which letter they have acknowledged receiving, faxed an estimate, also made by Mr Graham, based on the standard basis of the costs of and incidental to this application, fixed at $2,920.17.

In the affidavit of Mr Baldwin filed by leave today and sworn the 8th of November 2007, at paragraph 11, he annexes an estimate prepared by Mr Graham dated the 6th of November 2007 of his clients' costs of and incidental to this application assessed on a standard basis.

I am satisfied that Rule 685(2) regulated as it is by Practice Direction number 3 of 2007 is broad enough and provides a sufficiently broad discretion to this Court to fix costs, even in the event that the costs estimate has not been served on the respondent.

In the case of the second respondents, Mr Primrose has been served with the estimate, and he has chosen not to appear this morning.  It seems to me that were I to refuse the application made by the council to fix costs today, that would inevitably lead to a situation where the council would then have the option of electing, under paragraph 4, to proceed with the same process that it has undertaken in relation to the costs of the primary proceedings.  That seems to me, given the attitude and response of Mr and Mrs Primrose to the proceedings throughout, to be highly undesirable and would involve undue delay and expense.

I am confident, having perused both estimates, that the costs are reasonable and reliable, and I will fix the costs of today's application in relation to the second respondents at $2,920.17, and in relation to the first respondent at $4,675.50.

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