Tamborine Mountain Progress Association Inc v Beaudesert Shire Council

[1993] QCA 172

[1993] QCA 172

COURT OF APPEAL

FITZGERALD P
PINCUS JA

DOWSETT J

Appeal No 236 of 1992

TAMBORINE MOUNTAIN PROGRESS ASSOCIATION

INCORPORATED

(Appellant) Appellant

and

BEAUDESERT SHIRE COUNCIL

(Respondent)

and

DAVID H THOMPSON & ASSOCIATES and

SECRANNA PTY LTD

(Respondents

by election) Respondents

BRISBANE

..DATE 29/04/93

JUDGMENT under the Associations Incorporation Act 1981, appealed to the Planning and Environment Court from a decision of the respondent Council to approve a rezoning application by the other respondents, which elected to be joined in the appeal.

Subsequently an application was made to strike out the
appeal under subsection 13(4) of the Associations

Incorporation Act.

Subsections 2, 3 and 4 of section 13 of the Act provide:

“13. ...

(2) Notwithstanding the provisions of subsection

(1), it is the duty of the secretary, prior to the commencement of any legal proceeding by the incorporated association -

(a) legal practitioner, who is not a member
of the incorporated association, in

to obtain legal advice in writing from a question; and

(b) to table that legal advice before a meeting of the Management Committee.

(3) Upon the commencement of a legal proceeding

by an incorporated association, before any
further step is taken by the incorporated
association in relation to that proceeding,
the secretary shall file in the court or
other tribunal in which that legal proceeding
is commenced, an affidavit verifying
compliance with the provisions of subsection
(2).

(4) If no such affidavit of compliance is filed

within twenty-eight days after the
commencement of that legal proceeding, the
court or other tribunal in question may, upon
the application of the defendant or other
party or parties strike out that legal
proceeding and may make such order as it sees

fit.

...”

The Planning and Environment court held that subsection 2 had been complied with, that subsection 3 had not been complied with, but that the appeal should not be struck out.

No appeal is brought from those determinations.

However, it was also ordered that the appellant “pay the costs of the Respondents by Election of and incidental to the application to be taxed”. That order is the subject of the present appeal.

No formal reasons were given for the costs order, but there is a transcript of argument from which it appears that the Judge of the Planning and Environment Court considered that she had no power to order costs under subsection 13(4) of the Associations Incorporation Act, but power was to be found in subsection 7.6(1)(b)(iii) of the Local Government Planning and Environment Act 1990 (as amended), and that the respondents by election in the Planning and Environment Court were entitled to an order for costs under that provision. Subsection 7.6(1) of the Local Government Planning and Environment Act provides:

“7.6(1) [Orders]

(a)

Subject to paragraph (b), each of the is to bear their own costs.

(b) The court may, upon application made to it, order such costs ... as it considers appropriate in the following cases:-

...

(iii) Where a party has incurred
costs because another party has
defaulted in the procedural
requirements;

...”

Contrary to the position which it adopted below, the appellant did not argue that the Planning and Environment Court lacked the power to make the order for costs which is the subject of the appeal, but argued that the power arose under subsection 13(4) of the Associations Incorporation Act, not subsection 7.6(1)(b)(iii) of the Local Government Planning and Environment Act. It was also argued that sub- section 7.6(1)(b)(iii) related only to procedural requirements ordained by the Local Government Planning and Environment Act and not other procedural requirements.

It is unnecessary to decide these points. Whichever the power, the Court is satisfied that the discretion was properly exercised. It was manifestly open to the Planning and Environment Court to conclude that the application to strike out had been necessitated by the appellant’s failure to comply with the Associations Incorporation Act and that, in those circumstances the appellant should be ordered to pay the costs, if there was power to make such an order.

Accordingly, the appeal is dismissed and the appellant must pay the costs of the appeal to be taxed.

-----