Thurecht v Brisbane City Council (No 2)

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Thurecht & Anor v Brisbane City Council (No 2) [2015] QPEC 35

PARTIES:

KATHRYN THURECHT

(First Appellant)

AND

STEPHEN THURECHT

(Second Appellant)

v

BRISBANE CITY COUNCIL

(Respondent)

FILE NO/S:

3175/14

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court of Queensland

DELIVERED ON:

31 July 2015

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Searles DCJ

ORDER:

1. The Appellants are to pay the costs incurred by Council of and incidental to responding to the Appellants’ attempts to re-agitate the ADR Application after it had been dismissed.
2. The Appellants are to pay the Council’s costs for the preparation of submissions on this costs judgment and of the supporting affidavit of Ms Katherine Johnston, filed 29 May 2015.

CATCHWORDS:

PROCEDURE - COSTS – Where, prior to the appeal, Appellants made numerous attempts at agitating application to have the matter heard and determined by the ADR Registrar – Whether the application had been dismissed – Whether discretion should be exercised for costs order – Conduct of Appellants in persisting with application. 

Sustainable Planning Act 2009 (Qld) ss 457, 491B

COUNSEL:

Mr S Keliher (Solicitor) for the Appellants

Mr B Job of Counsel for the Respondent

SOLICITORS:

Milne Legal for the Appellants

Brisbane City Legal Practice for the Respondent

Application for Costs

1. On 15 May 2015, I made orders dismissing the appeal and reserving costs on the basis that the parties provide any written submissions within 14 days of judgment.[1] Council provided its costs submissions on 29 May 2015, the Appellant on 9 June 2015, and the Council its reply on 10 June 2015.

   [1]Thurecht & Anor v Brisbane City Council [2015] QPEC 19.

1. Council does not seek its costs of successfully resisting the appeal. Rather, it seeks costs incurred in responding to the Appellants’ numerous attempts to re-agitate an application to have the appeal determined by the ADR Registrar in lieu of this Court. Council says that the Appellants’ conduct in this regard justifies this court exercising its discretion pursuant to s 457 of the Sustainable Planning Act 2009 (Qld) (SPA), because it was put to unnecessary, and considerable, effort and expense in responding to the Appellants’ persistence with the ADR Application; which persistence was contrary to the prior determination of this Court on 23 October 2014.

1. I do not propose to set out the entire chronology leading up to the hearing of this appeal. I note the following features:-

(a) On 23 September 2014, the Appellants filed an interlocutory application in this court seeking an order under s 491B of SPA that the appeal be heard and determined by the Registrar.[2]

[2]Affidavit of Katherine Rebecca Johnston filed 29 May 2015, KRJ-1.

(b)        The appeal was adjourned twice, first on 26 September 2014 and again on 15 October 2014, pending the decision of this court as to the jurisdiction of the ADR Registrar.[3]

[3]Affidavit of Katherine Rebecca Johnston filed 29 May 2015, para [5].

(c)        The…