Reelaw v Queensland Heritage Council (No.2)

[2004] QPEC 90

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Reelaw v Queensland Heritage Council (No.2) [2004] QPEC 090

PARTIES:

REELAW PTY LTD. (ACN 080 614 428)
(Appellant)
v
QUEENSLAND HERITAGE COUNCIL
(Respondent)

FILE NO:

126 of 2004

PROCEEDING:

Appeal

DELIVERED ON:

10 December, 2004

DELIVERED AT:

Townsville

HEARING DATES:

11, 12, 13, 14 & 15 October, 2004

JUDGE:

C.F. Wall Q.C.

ORDER:

Application for costs dismissed.

CATCHWORDS:

COSTS – appeal against entry of commercial building in heritage register – appeal allowed – application by appellant for costs – wh. resistance to appeal merely to delay or obstruct or was frivolous or vexatious – application dismissed - each party to bear own costs – suggested amendments to Queensland Heritage Act.

Legislation referred to:
Integrated Planning Act s. 4.1.23 (1) , 4.1.23 (2)(a) & (b)
Queensland Heritage Act ss. 23(3) & 37

Case referred to:
Mudie v Grainriver Proprietary Limited (2003) 2 Qd R 271 (CON)

COUNSEL:

C. Hughes SC & E. Morzone - Appellant
M. Hinson SC & R. Jones - Respondent

SOLICITORS:

Suthers Taylor - Appellant
Crown Law – Respondent

HIS HONOUR: The appellant, having succeeded on the appeal, has applied for an order that the respondent pay its costs of the appeal. The appellant relies upon section 4.1.23(2)(a) and (b) of the Integrated Planning Act arguing that the respondent's resistance of the appeal was merely to delay or obstruct or was frivolous or vexatious. Both of these matters can be dealt with together.

The normal rule in matters in this Court is that each party must bear the parties own costs of a proceeding in the Court; section 4.1.23(1). The power in section 37 of the Queensland Heritage Act to make consequential orders and directions on the disposition of an appeal under that Act does not in my view encompass a power to award costs and I did not understand the appellant to submit that it does.

In my view the respondent's resistance to the appeal could not be said to have been groundless, superficial or devoid of merit.  Notwithstanding that it failed on the three issues argued on the appeal, it is not a situation where there was an absence of any real merit in the respondent's case or that the respondent had no meaningful evidence to put before the Court.
In these respects I agree with the submissions of counsel for the respondent to the effect that something much more than lack of success needs to be shown for which proposition Mudie v. Gainriver Proprietary Limited (2003), 2 Q.R. 271 at paragraph 36 was cited.

The respondent's witnesses were genuine in the opinions they held and the evidence they gave.  Whilst I do not think that other minds would have reached a different conclusion to that which I did, that does not detract from the fact that matters of judgment, opinion and assessment were all fairly involved in considering the issues raised on the appeal.  I also agree with counsel for the respondent that it does not follow that every opinion or argument not accepted can be characterised as frivolous or vexatious.

The appellant contends also that the respondent's case, at least with respect to section 23(3) of the Queensland Heritage Act, was frivolous or vexatious. I do not agree. The appellant's evidence as to the cost of conserving the building, whilst not countered by any evidence called by the respondent, was not accepted but was challenged and tested.
The evidence proposed to be led from Mr Marais was not apparent until his report was provided on the second day of the hearing. It was objected to on that basis and because the respondent contended that the evidence was not relevant. That contention was consistent with the argument advanced by the respondent as to the construction of section 23(3). That argument did not require evidentiary support and was, I consider, fairly advanced notwithstanding that it failed.

For these reasons the application for costs will be dismissed. 

Before leaving the matter I want to say that were it not for section 4.1.23, this is a case where normally costs should follow the event and had I power, I would have ordered the respondent to pay the appellant's costs of the appeal.
In my view the legislature should give consideration to amending the Queensland Heritage Act to include a power to award costs in appeals such as the present, separate from the power contained in section 4.1.23. Section 4.1.23, while expressed to be of general application to matters heard in the Planning and Environment Court, is really more designed for matters arising under the Integrated Planning Act than an appeal such as this. Had there been such a power in the present case I would, as I have said, have exercised it in favour of the appellant.

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