T W Hedley Pty Ltd v Cairns City Council

[2003] QPEC 39

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:	T W Hedley Pty Ltd v Cairns City Council & Anor [2003] QPEC 039
PARTIES:	T W HEDLEY PTY LTD ACN 010 330 515 (Appellant) v CAIRNS CITY COUNCIL Respondent) OWEN DALTON (First Co-Respondent)
FILE NO/S:	399 of 2002
DIVISION:
PROCEEDING:
ORIGINATING COURT:	Planning and Environment Court, Cairns
DELIVERED ON:
DELIVERED AT:	Cairns
HEARING DATE:
JUDGE:	White DCJ
ORDER:	That the application for costs be dismissed
CATCHWORDS:
COUNSEL:	Mr Philp for the respondent Mr Morzone for the co-respondent
SOLICITORS:	Williams Graham & Carman for the appellant MacDonnells Solicitors for the respondent Miller Harris Solicitors for the co-respondent

1. This is an appeal by a submitter against the respondent’s approval of the co-respondent’s application for a material change of use to establish a detached bottle shop on a parcel of land on Brinsmead Road in the suburb of Brinsmead, Cairns.  I heard evidence in respect of the appeal and on 18 February 2003 gave judgment indicating that I proposed to dismiss the appeal and adjourned for further consideration a final order determining conditions appropriate for the approval.  The parties have submitted for my approval a consent order consistent with my Reasons for Judgment and I will make that order by the consent of the parties.

1. The respondent and co-respondent also make application for an order that the appellant pay their costs of the appeal.  Before turning to the relevant evidence I should perhaps express a view as to the relevant provisions of the Integrated Planning Act so far as they might be relevant to this particular case. So far as is relevant s 4.1.23 of the Integrated Planning Act provides as follows:-

“(1) Each party to a proceeding in the Court must bear the party’s own costs for the proceeding.
(2) However the Court may order costs for the proceeding (including allowances to witnesses attending for giving evidence at the proceeding) as it considers appropriate in the following circumstances:-

(a)        The Court considers the proceeding was instituted merely to delay or obstruct.

(b)        The Court considers the proceeding or part of the proceeding to have been frivolous or vexatious.”

1. It has never been the case that a court has an inherent jurisdiction to make an order that an unsuccessful party to a proceeding pay the costs of the successful party. This is particularly so in relation to a court which is solely created by statute such as the Planning and Environment Court. In other words the power to make an order for costs in favour of a successful party depends solely upon statute. In my view, therefore, s 4.1.23 is a code limiting the circumstances in which the court may order that a party pay the costs of another party for the proceeding. In my view the proper construction of subsection (2) requires firstly, that an applicant for an order for costs satisfy the court of the relevant condition set out in paragraphs (a) to (i). Once that condition is satisfied it is then for the court to consider whether or not to exercise its discretion to make the order for costs.

1. It is worthy of note that in relation to subsection (2) an order for costs is not limited to one in favour of a successful party against an unsuccessful party, although ultimate success in the proceeding would obviously be a relevant matter as to the exercise of the discretion.  For instance, it seems to me that there would no reason why an unsuccessful party to an appeal could not satisfy the court that the appeal was “instituted merely to delay or obstruct” thereby giving rise to the discretion to order that a successful appellant pay the costs of the proceeding of an unsuccessful co-respondent, although as I have said the success of the appellant may be very relevant to the exercise of the discretion.

1. It should also be remembered that an order for costs is not made with a view to inflicting some form of punishment on the party against whom it is made.  An order for costs is intended to compensate the party in whose favour it is made for having been caused to incur such costs by the party against whom the order is made.  In my view it is wrong to impose some additional requirement of culpability on the part of the respondent to the application in order to justify the order. 

1. The starting point in this case is therefore to consider whether or not the appellant instituted the proceeding merely to delay or obstruct.  It is probably fair to say that paragraphs (a) and (b) of subsection 2 are unlikely to apply in circumstances other than a submitter appeal against an assessment manager’s approval of an application, although it might be perhaps potentially possible to demonstrate that an applicant’s appeal against a refusal could be frivolous or vexatious.

1. Another matter which should be noted is that in the vast majority of cases a submitter appellant against an assessment manager’s approval of an application will usually want to prevent (that is, obstruct) the establishment of the approved development.  Obviously the word “merely” will then become relevant.  According to the Macquarie Concise Dictionary “merely” means – only as specified and nothing more; simply.

1. I should say at this stage that on the evidence I am satisfied that the institution of the appeal was solely motivated by Mr Hedley’s resentment at the Council’s refusal of a similar application in respect of the same site a few years earlier and the Council’s refusal of the appellant’s application to establish a detached bottle shop at a site at Smithfield (see Hedley Constructions Pty Ltd v Cairns City Council & Ors Cairns Planning and Environment Court No.4 of 2002 unreported 20 December 2002).  As to the appellant’s conduct of the appeal I would not be critical of it.  The grounds of appeal were all supported to a reasonable degree by the opinions of expert witnesses.  The appellant’s case as regards interlocutory steps and preparation for appeal were conducted in such a way as to not attract any criticism.  However, it seems to me, that whilst the manner in which an appellant conducts an appeal may be of some assistance in deciding whether the proceeding was instituted merely to delay or obstruct it is of no direct relevance to determining that issue.  The purpose relates to the institution of the appeal not as to the manner in which it is conducted.  Perhaps a practical way of approaching the question is to consider how a submitter appellant determined to obstruct the approved development could be viewed as not instituting the appeal merely to obstruct the development.  I accept the submission made on behalf of the appellant that the general position recognises the public interest character of matters which come before the Planning and Environment Court and it is designed to ensure that any person including a commercial competitor may litigate relevant issues before the court without the fear of costs (See Mudie v Gain River Pty Ltd & Anor (2002) QCA 546.) Therefore if a submitter appellant, although intent on obstructing the development, institutes the appeal for reasons of a public interest character then that appellant cannot be said to have instituted the appeal “merely to delay or obstruct”.

1. However, the fact that a commercial competitor raises issues of a public interest character in the conduct of the appeal is not necessarily conclusive of the purpose for instituting the appeal if the evidence points to the contrary.  In this case I am satisfied that the appeal was instituted by the appellant merely to obstruct the approved development and the raising of issues of a public interest character in the grounds of appeal and the gathering of evidence going to those issues of a public interest character, were of a secondary consideration namely, to attempt to present an arguable case on relevant issues so as to give the appeal as much chance as possible of succeeding.  However, I am satisfied on the evidence that the purpose of instituting the appeal was merely to obstruct the proposed development.  I am satisfied that the condition precedent required in subsection (2)(a) is made out and it is therefore necessary to consider whether, in the exercise of my discretion, I should make the order for costs sought by the co-respondent.

1. There is no comprehensive list of the sort of factors which might be relevant to the exercise of the discretion.  I would not attempt, in a case like this, to canvas such a list of factors.  However, it seems to me that one factor which is relevant is whether or not the litigation of the issues raised in the appeal was in the public interest even though the purpose of the appellant in instituting the appeal had nothing to do with the public interest.  In my view in light of subsection 4.1.23(1) it is for the applicant for an order for costs in its favour to establish that the discretion should be exercised in its favour.  In the context of this case in my view it is for the respondent Council and the co-respondent to establish that there was no public interest to be served in the institution and hearing of the appeal.  The establishment of a detached bottle shop on the subject site could hardly be described as a major development proposal giving rise to significant consequences to the community at large.  Nevertheless the appellant did raise, and call evidence in respect of, legitimate planning issues.  In addition there were changes made by the co-respondent to the detail of its proposal which in my view served the public interest and which in my view would not have been made without the appeal having been instituted.  I consider this to be very much a borderline case but in the end I am not satisfied that the discretion should be exercised in the respondent and co-respondent’s favour.  I will order that the application for costs be dismissed.