Shanvale v Council of the Shire of Livingstone

[1998] QSC 242

IN THE SUPREME COURT   

OF QUEENSLAND
  No. 630 of 1993
Brisbane

Before Mr Justice Ambrose

[Shanvale v Council of the Shire of Livingstone]

BETWEEN:

SHANVALE PTY LTD

Applicant

AND:

COUNCIL OF THE SHIRE OF LIVINGSTONE

Respondent

REASONS FOR ORDER ON COSTS - B.W. AMBROSE J.

Delivered 5 November 1998

1. This was an application for an order to review  a decision made by the respondent in July 1993 to impose upon an area of land in the respondent’s Local Government area containing about 950 allotments of land, most about one quarter acre in area, a special rate for the purpose of providing reasonable road access to them.

2. The applicant which is a real estate developer had purchased that area of land as a small part of a very large grazing area for the purpose of resale at a profit. 

3. Some of the parcels of land had been sold to persons prior to the imposition of the rate challenged by the applicant.

4. The result of the imposition of the rate was that the owners of all land within the “benefitted area” would be levied a special rate of $900 per block - irrespective of its size.

5. As a consequence the developer which still occupied or had under its control most of the lots (or at least ultimately became responsible to pay the levied rate on most of them) was required to expend a significant sum of money to meet the special rate levied. As a consequence  the net profit on the sales of the remaining lots of land would be reduced significantly.

6. The applicant sought an order to review the decision of the respondent on a number of grounds, the principal one being that the resolution to impose the special rate was passed in bad faith by the Council to achieve the improper purpose of merely mulcting the applicant probably because of the large profits the respondent perceived it was making and would make on the resale of the allotments. 

7. The applicant failed completely on this basis of attack and a great deal of time and expense was incurred in pursuing it.

8. The second ground upon which it was sought to review the decision was that the respondent lacked statutory power under s.21(4A) of the Local Government Act as it stood at the time the resolution was passed to levy the rate.

9. This ground was shortly argued, really as a subsidiary point to the principal point of bad faith and/or improper motive. At the time of argument the section in force at the relevant time had been repealed and replaced by another one. It could not be contended therefore that there was much real community interest in the proper interpretation of that section.

10. In any event for the reasons given the applicant failed entirely on this argument which in my judgment was not soundly based. In my view it was really a make weight argument to accompany the principal ground argued which was malafides and improper motive tainting the decision challenged.

11. The third ground upon which it was sought to review the decision was that it was an unreasonable - irrational decision on the Wednesbury principle. In my view this argument also bore all the hallmarks of a make weight argument and upon the evidence available to the applicant before embarking upon the hearing of its application it could not be said to have had any real prospects of success.

12. In my view s.49(4) of the Judicial Review Act 1991 makes it clear that subject to the other provisions of that section the Rules of Court relating to the ordering of costs apply to this proceeding.

13. In my judgment the applicant for review did not disclose a reasonable basis for bringing the application upon the lengthy evidence it called to support it. I take this into account under s.49(2)(c) of the Judicial Review Act 1991.

14. In my judgment the applicant’s real motivation for bringing the application was to pursue an investigation of the respondent’s Councillors in the hope or perhaps even expectation that it might show that in levying the rate the respondent was acting  malafides and to achieve the improper purpose to which I have referred. It was an application brought by a land developer irritated by its perception that the respondent had taken steps apparently within the power given to it under s.21(4A) of the Local Government Act to ensure land which the developer was selling without adequate access received such access at the expense of its then owners rather than at the expense of the ratepayers in the Shire generally.

15. There is nothing before me to indicate that any person other than the applicant had much real interest in the outcome of the application. Indeed in spite of the applicant’s endeavours to persuade other landowners within the area to join in the application for review, they declined to do so. 

16. In my view the proceedings did not involve an issue which affected or might affect “the public interest” in the Shire, although undoubtedly if the applicant had succeeded the ratepayers generally would have been required to contribute to the cost of the proposed roadworks and those within the benefitted area would have had their financial obligation to pay the special rate removed. In a sense it could be asserted that it was in the public interest that assertions of malafides and improper purpose on the part of the respondent ought be publicly investigated upon judicial review. If such considerations do amount to issues which affect the public interest  within the meaning of s.49(2)(b) (which I doubt) I keep them in mind. 

17. Having regard to the observations of Thomas J. in Cairns Port Authority v Albeitz (1995) 2 Qd.R. 470 at 475-476 and the observations in Concord Data Solutions Pty Ltd v Director General of Education (1994) 1 Qd.R. 343 at pp. 355-356 and the treatment of this question by Peter Boyne in Costs Orders on Review of Administrative Action (1994) 68 A.L.J. 816, I can see no reason to depart from the ordinary rule that the successful party should recover its taxed costs of and incidental to a proceeding upon which it succeeds. I can find nothing on the facts of the present case comparable with Friends of Castle Hill Inc. v. Queensland Heritage Council (1993) 81 L.G.E.RA. at 346. This was in essence a case where serious allegations of malafides and improper purpose were made which required the respondent to incur considerable costs to refute. I am unpersuaded that there is any sound reason why the ratepayers of Livingstone Shire should ultimately bear the costs incurred in the respondent successfully refuting those allegations.

18. I therefore order that the applicant pay to the respondent its costs of and incidental to the application including reserved costs to be taxed.