Sunshine Coast Regional Council v Marshall

[2011] QPEC 123

[2011] QPEC 123

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 1735 of 2011

SUNSHINE COAST REGIONAL COUNCIL	Applicant
and
MELVILLE ROBERT MARSHALL	Respondent

BRISBANE

..DATE 14/09/2011

ORDER

CATCHWORDS

Sustainable Planning Act 2009 s 457(2)(e)

In enforcement proceeding respondent sought extension of time for providing expert evidence - respondent's application adjourned to permit preparation of evidence to show that conduct of matters did not render the extension inappropriate - costs of second day of hearing (when extension was agreed to) sought against respondent - power to order costs arose on basis of introduction of new material - costs application adjourned for determination when more of circumstances will be known

HIS HONOUR:  There will be an order in terms of the initialled draft, which is Mr Williamson's draft, in which paragraph 2 has been amended to read, "Any evidence of Maxwell Frances Winders incorporating evidence not already filed on which his expert opinion is based to be relied upon by the respondent is to be filed and served by 14 October 2011".  Paragraph 5 has been amended to read, "The determination of whether the applicant council's costs of and incidental to today's hearing ought be paid by the respondent be reserved". 

The reason for the council seeking costs is that Mr Marshall's application to be allowed more time to file and serve the expert evidence of Mr Winders could not be disposed of to the court's satisfaction on the original return date which was 9 September.  Two days in court were required to resolve what ought to have been resolved in one.  The court's was uneasy on 9 September as revised directions sought by Mr Marshall would necessarily have postponed the hearing of the council's underlying application till next year.  This occurred against a background of the explanation for Mr Winders requiring further time, being the period from 2 September to 14 October 2011, appearing rather thin.  There was what on analysis appeared a glaring lack of specificity about dates when individuals became involved, dates when steps were attempted to be taken and the like.  I thought there was some mystery about whether the respondent was essentially simply seeking to put off the evil day, so to speak. 

At least one of the purposes of the adjournment until today was to permit the filling out of the material read on 9 September and that has occurred - notably by the filing the other day of an affidavit of Mr Winders which provides ample by way of explanation of the difficulties he faces. 

It doesn't appear there's been dilatoriness in any quarter. 

Mr Williamson for the council, in seeking its costs of today's hearing, relies on section 457(2)(e) of the Sustainable Planning Act 2009 and the respondent having "introduced new material", namely the affidavit mentioned. Mr Ure submitted that the intention of that paragraph is to catch situations in which new material is introduced which calls for an answer from the other party. The present case will not come within that rubric or scenario.

In my opinion, paragraph (e) does apply here as indicated.  The purpose of the adjournment was to enable the introduction of further evidence to show, I suppose, that in Mr Marshall's camp nothing had occurred which might disqualify him from obtaining additional time.

That the court is in a position in what is usually a no costs jurisdiction to award costs does not mean that they will be ordered. See Rix Super Pty Ltd v. Lewani Springs Resort Pty Ltd [2007] QPELR 135 and Chief Executive Department of Transport and Main Roads v. Club Cavill Pty Ltd (No 2) [2011] QPEC 118. The discussion this afternoon raises the possibility that in that last matter I ought not to have accepted that paragraph (i) of section 257(2) applied to an applicant before the court because it had to be an applicant making a development application.

The court ought to consider all of the circumstances in determining whether or not to exercise the jurisdiction, once it's arisen, to make an award of costs.  There are a number of factors that, in my view, make it inappropriate to make an award today.  One is the merits of the council's application which, I apprehend the respondent contends is fundamentally misconceived in that all he has been doing is comply with obligations under development permits issued by the council or a predecessor around 1975 requiring rehabilitation of a vast site from which sand extraction activities have been occurring on a large scale from an even earlier date. 

I understand the council contends that any such antique development permits have expired, but should it emerge that without any justification the council brought this proceeding, that, in my view, has some bearing on whether it ought to get any costs under the no costs regime. 

There is also the circumstance that in the usual run of proceedings in the court where so‑called “slippage” occurs, matters are got back on track as well as they can be in a cooperative way.  There is a culture of consideration of the convenience and competing obligations which expert witnesses, in particular the busier ones, have to confront.  Parties are entitled, as the council has done, to take a hard line.  Here, the council, in light of Mr Winders' new affidavit, has relented, giving Mr Winders the time he says he needs. 

There has been a concession on the other side as well, Mr Ure accepting that the matter ought to be reviewed again on 26 October 2011, which is indeed earlier than the November date fixed under earlier directions and from the council's point of view, represents a much better outcome than a review delayed until December. 

Order as per initialled draft.

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