Rofail v Wells (No. 2)

[2011] QPEC 131

PLANNING & ENVIRONMENT COURT

OF QUEENSLAND

CITATION:

Rofail & Ors v Wells (No. 2) [2011] QPEC 131

PARTIES:

MAGED ROFAIL, SABINA MANUELA ROFAIL & ROFAIL GRANDCHILDREN FUND PTY LTD
(Applicants)

V

AMANDA JANE SACRE WELLS
(Respondent)

FILE NO/S:

BD 2213/2001

DIVISION:

Planning & Environment

PROCEEDING:

Originating Application and Application in a Pending Proceeding

ORIGINATING COURT:

Planning & Environment Court, Brisbane

DELIVERED ON:

20 October 2011

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Dorney QC, DCJ

ORDER:

I order that:  there be no order as to costs for the proceeding

CATCHWORDS:

Costs – exception to the “no costs” rule – whether vexatious – where course not unjustified and no harassment

Sustainable Planning Act 2009, ss 243, 245, 367, 457, 578, 580

DTMR v Brisbane City Council & Orb Holdings Pty Ltd [2011] QPEC 108
Mudie v Gainriver Pty Ltd (No. 2) [2003] 2 Qd R 271
Oceanic Sun Line Special Shipping Company Inc. v Fay (1988) 165 CLR 197

COUNSEL:

R A Quirk for the applicant

S P Fynes-Clinton for the respondent

SOLICITORS:

Southside Property & Commercial Lawyers for the applicant

Canning Weil Lawyers for the respondent

Background

1. On 6 October 2011 I ordered that the applicant’s Amended Originating Application be dismissed and that both parties have leave to file submissions in writing on the issue of costs.  Many submissions, from both sides, have now been filed. 

1. Distilled from those submissions is the primary argument of whether the applicants’ maintaining of the proceeding against the respondent was, after 9 July 2011, “vexatious” within the meaning of the Sustainable Planning Act 2009 (“SPA”), s 457(2)(b).

1. The reason for the date of 9 July 2011 being chosen by the respondent is that it was the day that followed the letter of the respondent to the applicants dated 8 July 2011, wherein, by the respective solicitors, the applicants were “put” on specific notice of two discrete matters which were asserted by the respondent to be fatal to the Originating Application as a matter of law, without any need to consider the facts of what was, or was not, done on Lot 39 in relation to the relevant relocated roofwater drainage pipes. 

1. The asserted matters were that:

(a)        what had been done by the respondent was exempt development; and

(b)        the applicants have no lawful right way by easement, or equivalent right created by any development permit condition, to discharge roofwater through the respondent’s property.

1. The latter assertion was contended by the respondent to make any argument about the standard or capacity of works which the applicants wished to use for that purpose of discharge as academic; and, thus, rendering the proceeding of no utility (having regard to the nature of the relief sought being discretionary).

1. On 22 July 2011, Robin QC DCJ took the view, though somewhat regretfully, that it then seemed inappropriate for him to determine finally the respondent’s application for summary dismissal of the applicants’ Originating Application, being firmly of the view that the local Redland City Council ought to be brought into the proceeding in a more serious way than as a respondent to an application for disclosure and because of the potential for factual disputation sustained by what His Honour termed the concession by Counsel for the respondent that there were “factual issues lurking here”.  It was both the first return date for the Originating Application and for the Application in a Pending Proceeding (seeking summary dismissal).

1. Robin QC DCJ, in reference to the basis for ordering that the costs of that day be reserved, after noting that the respondent was seeking indemnity costs from at least the date of the letter of 8 July 2011, stated that he did not wish to say anything that would stand in the way of that application for costs succeeding “if, at the end of the day, (that) argument, by which I mean the legal argument that (the respondent’s Counsel) makes today on the basis that the factual issues referred to don’t matter, ultimately succeeds”.  He further observed that the applicants had had fair notice of where they might stand in respect of costs.

1. The respondent asserts that she was put to “unjustified” costs in preparing factual evidence – although conceding that this evidence (contained in the two affidavits of her husband) was not particularly expansive – contending that it was, then, completely unnecessary “having regard to the respondent’s success on one of the specific legal issues raised in the letter of 8 July 2011”.  She further asserts that such material would not have had to be prepared if the applicants “had properly come to grips” with the two issues raised (including the specific issue about exempt development on which the respondent was ultimately successful). 

Conclusions on Background Issues

1. I do not accept that the respondent could have proceeded with its application for summary dismissal without raising some factual material in support.  In particular, it was necessary to depose to the factual matters which were set forth in the sections entitled “Background” and “Further Factual Matters” in my original Reasons for Decision. 

1. Furthermore, the respondent succeeded (on the day that these issues were set down for hearing, namely, 29 September 2011) in having excluded a further affidavit (sworn 23 September 2011 by Dr Rofail) which was sought, by the applicants, to be filed by leave (to which was exhibited an expert engineer’s report), except as to (after argument before me the parties agreed were not in dispute) paragraphs 23 to 27 (inclusive).

1. It can be seen from the transcript of that day that the respondent’s Counsel submitted that the only choice open in order to proceed to hear the matter (in part) on that day could be on what he called the “threshold or legal points”.  As can also be seen, I accepted that approach, subject to those paragraphs of Dr Rofail’s affidavit being sorted out – which they were.  The respondent’s Counsel then indicated that he would be quite content to follow the course that I outlined, which was to determine his client’s application on the present material, but that, if I should form the view that it was then necessary to go into additional evidence, I would then adjourn the matter for further hearing, noting that if the position was reached that the preliminary matters were determined in the applicants’ favour, the court could move to the second aspect of the proceeding later on. 

1. Accordingly, having reviewed the material which was placed before the court for the hearing conducted on 29 September 2011, I do not accept that the factual evidence contained in the two affidavits of Mr Wells was not, at least in some significant part, relevant to the respondent’s application for summary dismissal.

1. Hence, it is necessary to turn to the legal issues raised, after a consideration of the underlying principles.

Costs principles

1. The fundamental provision concerning costs under the SPA is that which is stated in s 457(1), namely, that each party to a proceeding in the court must bear the party’s own costs for the proceeding.

1. An exception to that requirement, insofar as exceptions are relied upon here, is contained in s 457(2)(b). It states that the court may order costs for the proceeding as it considers appropriate in the circumstance where the court considers the proceeding to have been “vexatious”. Although the paragraph also refers to “frivolous”, the reliance here is simply upon the former alternative basis.

1. Given that there appears to be some dispute about the differing approaches of the plurality and Williams JA in Mudie v Gainriver Pty Ltd (No. 2) [2003] 2 Qd R 271, I will merely explore the conclusions reached jointly by McMurdo P and Atkinson J.

1. The plurality in Mudie – although considering the predecessor to s 457(2)(b) (in which there is no difference in expression) - dealt with the term “frivolous or vexatious” as a composite term, noting that the words were not defined and should be given their ordinary meaning, unfettered by their meaning in the very different context of striking out or staying proceedings for an abuse of process; and concluded that something more than a lack of success needed to be shown before a party’s proceeding is “frivolous or vexatious”: at 283-284 [35]–[36]. The plurality noted that, although from a different context, some assistance could be gained from the discussion of the meaning of the words in Oceanic Sun Line Special Shipping Company Inc. v Fay (1988) 165 CLR 197 at 247 where Deane J stated that “vexatious” means “productive of serious and unjustified trouble and harassment”, holding that such a meaning was “apposite here”: at 284 [36]. As the plurality finally noted, whether the proceeding is vexatious will turn on the circumstances of the case and will include public policy considerations and the interests of justice: at 284 [37].

1. I see little value, at least in a case such as this, to consider other instances, particularly prior to Mudie, which discuss the meaning of “vexatious”.  As cogently observed in Mudie, the determination will turn on the circumstances of each individual case; and there is nothing in the cases referred to me which shows analogous circumstances to these here were considered.  By way of exception, I accept that, for the reasons expressed by Robin QC DCJ in DTMR v Brisbane City Council & Orb Holdings Pty Ltd [2011] QPEC 108, Deane J’s determination is referrable to impact and not to motivation: at folio 1-7.

1. Quite correctly, according to the above canvassed authority, the respondent’s submissions acknowledge:  that something more than a mere lack of success must be shown in order to enliven this limited costs power; and that my Reasons for judgment showed that the applicants’ contentions were neither merely frivolous nor unsupported by any form of reasoned argument.  Rather, the respondent has confined the aspect of vexation to the contention that the maintenance of the litigation after 8 July 2011 was “unjustifiably troublesome”.

1. That aspect was particularised in the further submission that litigation which is lost on a point that is:

(a)        squarely raised early in the proceedings as fatal; and

(b)        found to be so at the final hearing; but

(c)        not directly or satisfactorily responded to at any time up to and including the final hearing;

is a course which results in “serious and unjustified trouble”.  The difficulty with that précis is that the meaning determined to be apposite in Mudie contained the additional words: “and harassment”.  I do not accept that the term “vexatious” can be cut down in a way so that some of the elements that are said to be essential can be omitted leaving the remaining elements as arguably applicable alone:  see, also, the discussion of the meaning advanced by Deane J in Fay, by Williams JA in Mudie: at 291[61].

Consideration of Basis of Vexation

1. As is apparent from the third written submission filed by the respondent (being the Further Reply Submission), the respondent regards the argument that my acceptance of the respondent’s construction of “exempt development” means that it was “patently unarguable” that the respondent was not carrying out assessable development “for reconfiguration” – in the context where without the carrying out of assessable development there could be no “development offence”, and where no other possibility of assessable development “was suggested” – as decisive of the outcome here.

1. It is certainly true that, without any development offence, a primary plank in the applicants’ argument could not be sustained. But the problem with the respondent’s argument is that it ignores the primary argument for the applicants that “(an)other possibility” of assessable development was advanced, namely, that, pursuant to s 245 of the SPA, the Operational Works DA (being in a form of a development permit which was subject to conditions pursuant to s 243 of the SPA) continued to have application even after the works concerned with that DA were completed, because by s 245 such a DA attached to the land and remained as binding upon successors in title (of which the respondent was one). If accepted, that argument would have led on to a consideration of Division 2 of Part 8 of SPA concerning requests to change the terms of the relevant DA, which was an assessable development for reconfiguration. The applicants, at the hearing, expressly relied on s 580 as the relevant contravention provision, eschewing any reliance on s 578.

1. Quite obviously, if, as happened, that argument of the applicants’ was rejected, the other parts of the just referred to submission of the respondent can be seen to hold true – except for the essential assertion of there being no other possibility of assessable development suggested (which there always was).

1. But, while it may well be frustrating to the respondent that what she asserted in the letter of 8 July 2011 ultimately proved to be true concerning the development arising from the minor operational work carried out being exempt, the contrary argument was never patently unarguable.

1. As for the second aspect of the respondent’s case, namely, that the proceeding was of no utility where the relief sought was discretionary and where the applicants had no lawful right by way of easement or equivalent right created by a development permit condition, since the arguments that impinge upon that matter were not fully canvassed before me – for the reasons that I have discussed earlier with respect to this necessitating a separate later determination of a further discrete question – it is impossible to determine what the outcome would otherwise have been if the applicants had been successful with respect to s 245 of the SPA, however difficult the actual orders might have been to formulate: see my Reasons at [31]. They may, at the very least, have obtained declarations that the development was not a “permissible change” within the meaning of that term as defined in s 367 of the SPA. Additionally, there may have been a basis on which to determine that the change did, in truth, provide a basis for a contravention of s 580 of the SPA.  But, as already noted, those were to be matters for determination at a later time, if that should have become necessary as a result of an outcome different from the one that I determined to hold as applicable.

Conclusion

1. While I do conclude that the respondent may well have been seriously troubled by the course taken by the applicants, I hold that that such a course was not unjustified in the circumstances of this particular case and that it certainly was not harassment.  What has been legitimately argued here is a point involving public policy considerations (the determination of which is not to be discouraged) which had not been earlier determined and for which neither party was able to identify any authority which was in any way a major determinative factor.  It was in the interests of justice, including justice to the respondent in her stance on this issue, for it to be determined.

1. Thus, I do not hold that the circumstances for the application of s 457(2)(b) of the SPA have not been established by the respondent.

1. Because this matter has been so strongly argued, the appropriate order is that:

·     there be no order as to costs for the proceeding (constituted by the Amended Originating Application).