Vanbrogue Pty Ltd v Department of Environment and Resource Management (No. 3)
[2013] QLC 52
•23 August 2013
LAND COURT OF QUEENSLAND
CITATION: Vanbrogue Pty Ltd v Department of Environment and Resource Management (No. 3) [2013] QLC 52 PARTIES: Vanbrogue Pty Ltd
(appellant)v. Chief Executive, Department of Environment and Resource Management
(respondent)FILE NO: WAA124-11 PROCEEDING: Application for costs DELIVERED AT: Brisbane DELIVERED ON:
23 August 2013
HEARD AT:
HEARD ON:
Heard on the papers
Submissions closed 14 May 2013
MEMBER: PA Smith ORDERS:
The respondent pay the appellant’s costs of the appeal, on the standard basis, limited only to those costs which arise, directly and/or indirectly, from the respondents failure to provide Dr Clayton with the water quality data he requested.
CATCHWORDS: Water Licence – Application under Water Act2000 for costs – whether party acted frivolously or vexatiously – where party does not properly discharge its responsibilities in the appeal.
Land Court Rules 2000
Uniform Civil Procedures Rules 1999
Water Act 2000Chrismel v Department of Natural Resources and Mines [2005] 26 QLCR 87.
Mudie v Gainriver Pty Ltd & Anor (2002) 124 LGERA 393.
Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 247.
Rofail v Wells (No. 2) [2012] QPELR 164.
Vanbrogue Pty Ltd v Department of Environment and Resource Management (No 2) [2013] QLC 8APPEARANCES:
SOLICITORS:
Mr M Williamson of Counsel for the appellant
Mr N Loos of Counsel for the respondentSouth & Geldard Solicitors for the appellant
Legal Services, Department of Environment and Resource Management for the respondent
Background
On 8 March 2013 I delivered my decision[1] with respect to an appeal by Vanbrogue Pty Ltd (“Vanbrogue”) against a review decision of the respondent, the Chief Executive, Department of Environment and Resource Management (“DERM”).[2] The appeal was allowed, subject to resolution of a High Ecological Significance (“HES”) classification issue and 13 detailed conditions.
[1] Vanbrogue Pty Ltd v Department of Environment and Resource Management (No 2) [2013] QLC 8
[2] It should be noted that the Department is now known as the Department of Natural Resources and Mines.
Vanbrogue has now made an application, pursuant to s.882 of the Water Act 2000 (“Water Act”) for an order that DERM pay part of its costs.
It is not contested between the parties that the Land Court has power to award costs under s.882 of the Water Act. In this regard, the provisions of s.882(3)-(5) are relevant. They provide as follows:
“(3) Each party to the appeal must bear the party’s own costs for the appeal.
(4) However, the court may order costs for the appeal, including allowances to witnesses attending for giving evidence at the appeal, as it considers appropriate in the following
circumstances—
(a) the court considers the appeal was started merely to delay or obstruct;
(b) the court considers the appeal, or part of the appeal, to have been frivolous or vexatious;
(c) a party has not been given reasonable notice of intention to apply for an adjournment of the appeal;
(d) a party has incurred costs because the party is required to apply for an adjournment because of the conduct of another party;
(e) a party has incurred costs because another party has defaulted in the court’s procedural requirements;
(f) without limiting paragraph (d), a party has incurred costs because another party has introduced, or sought to introduce, new material;
(g) a party to the appeal does not properly discharge its responsibilities in the appeal.
(5)If the court makes an order under subsection (4), the court may also order the party ordered to pay costs under subsection (4) to pay to the other party an amount as compensation for loss or damage suffered by the other party because of the appeal if the court considers—
(a) the appeal was started merely to delay or obstruct; or
(b) the appeal, or part of the appeal, to have been frivolous or vexatious.”
Costs claimed by Vanbrogue
It must be noted at the outset that Vanbrogue is only seeking costs on a limited basis. Counsel for Vanbrogue made this clear in his written submissions[3] when he submitted as follows:
[3] Filed 15 April 2013.
"46.It is submitted the costs order made by the Court should permit the Appellant to obtain the following costs, assessed on the standard basis, namely:
(a) the costs associated with Mr Ovenden's evidence, including the cost of his report and attendance at the hearing;
(b) the costs of Dr Miller's evidence, including the cost of his report and attendance at the hearing;
(c) the costs associated with that part of Dr Olsen's evidence with respect to the classification of the Lagoon as riverine under SPP4/11;
(d) the costs associated with that part of Dr Johnson's evidence with respect to the classification of the Lagoon as riverine under SPP 4/11;
(e) the Appellant's legal costs associated with the evidence of Dr Miller, Mr Ovenden, Mr Hausler, Dr Clayton and those parts of Dr Olsen and Dr Johnson's evidence identified in paragraph 46(c) and (d) above."
Vanbrogue seeks its costs specifically pursuant to ss.4(b) and 4(g) of s.882 of the Water Act. Section 882(4)(b) of the Water Act relates to the appeal, or part of the appeal, as having been frivolous or vexatious, while s.882(4)(g) concerns the situation where one of the parties to the appeal does not discharge its responsibilities in the appeal properly.
Frivolous or Vexatious
In contending that the actions of DERM have been frivolous or vexatious, Vanbrogue has relied upon the Court of Appeal decision in Mudie v Gainriver Pty Ltd & Anor[4]. Although Mudie was concerned with the use of the words "frivolous or vexatious" in different legislation to that currently under consideration, I agree with the submissions of Mr Williamson for Vanbrogue that the reasoning of the Court of Appeal in Mudie is relevant to the determination of the costs question currently at hand.
[4] (2002) 124 LGERA 393.
In Mudie, President McMurdo and Justice Atkinson in their joint reasons for judgment relevantly had this to say[5]:
[5] At pages 405 – 6.
"35The words "frivolous or vexatious" are not defined in the Act and should be given their ordinary meaning, unfettered by their meaning in the very different context of striking out or stay proceedings for an abuse of process. By the time an application for costs is made, the court knows the issues which have been litigated whilst a interlocutory application, the court must to some extent speculate and must necessarily be cautious to ensure a deserving claimant is not unjustly deprived of the opportunity of a trial of the action. The Macquarie Dictionary defines "frivolous" as "of little or no weight, worth or importance; not worthy of serious notice: a frivolous objection. 2. characterised by lack of seriousness or sense: frivolous conduct ..." and "vexatious" as "1. causing vexation; vexing; annoying ...".
36Unquestionably, something much more than lack of success needs to be shown before a party's proceedings are frivolous or vexatious. Although in a different context, some assistance can be gained from the discussion of the meaning of these words in Oceanic Sun Line Special Shipping Company Inc v Fay where Deane J states that "oppressive" means seriously and unfairly burdensome, prejudicial or damaging and "vexatious" means productive of serious and unjustified trouble and harassment, meanings apparently approved by Mason CJ. Deane, Dawson and Gaudron JJ in Voth v Manildra Flour Mills Pty Ltd. Those meanings are apposite here.
37Whether proceedings are vexatious or oppressive will turn on the circumstances of the case and will include public policy considerations and the interests of justice.
Footnotes omitted
Vanbrogue relies upon two reasons to support its contention that the actions of DERM towards Vanbrogue amounted to unjustified trouble and harassment[6]:
[6] See submissions of Vanbrogue as to costs. Filed 15 April 2013.
"36.First, the case run by the Department in relation to the futility point was contrary to established law. The relevant law was identified in the reasons for judgment at paragraph 149 wherein Walker v Noosa Shire Council was cited. The established law contemplates that notwithstanding increased government controls, it is commonplace for applicants to require multiple consents from different authorities or even from the same authority. In those circumstances, it is desirable that such applications be considered on their merits one at a time, without undue speculation on the fate of other necessary applications.
37.This is not a principle which guided the Department's conduct in this proceeding.
38.Second, the Appellant was required to call expert evidence specific to the futility point run by the Department. This included the evidence of Mr Ovenden (town planner). The purpose of Mr Ovenden's evidence was to address the prospect that future applications made to the Rockhampton City Council for Operational Works were not without hope, but rather had some prospect.
39.The Department did not call evidence of a similar character to establish the contrary position."
Footnote omitted
In response, DERM submits as follows[7]:
[7] See submissions of DERM. Filed 1 May 2013.
"44.… In raising the 'futility point' and making submissions about it, the Respondent could not be said to have been harassing the Appellant. It was a legitimate point to raise. The Court recognised it as a valid point at RJ [185] and [191].
45.Because of the way in which the Appellant ran its case, by putting the HES classification of the Lagoon in issue, it was always going to be necessary for there to be an examination by the parties and the Court of the further approvals that would be required by the Appellant to carry out the proposed development. Those further approvals offer the Appellant the opportunity to have the HES classification of the Lagoon re-visited. The Court was assisted by the ventilation of the issue. So much can be discerned from the judgment linking the 'futility point' to the issue of the HES classification of the wetland: RJ [185]-[193] and [224]-[228].
46.The Respondent made no submissions in the appeal that were contrary to established law. Walker Noosa Shire Council [1983] 2 Qd. R 86 does not indicate that such a point cannot be raised."
Footnote omitted
Guidance is to be found as to what is meant by the meaning of the word "vexatious" by reference to the observations by Justice Deane in the High Court decision of Oceanic Sun Line Special Shipping Company Inc v Fay[8]:
"… If the plaintiff is not acting bona fide or in pursuit of a legitimate advantage in pursuing the proceedings in the legal system of this country, that will, of course, make it much easier for a continuation of the proceedings to be characterized as vexatious or oppressive, since there will be little if anything to put into the balance against the inconvenience which would be sustained by the defendant. On that approach,… ‘vexatious’ should be understood as meaning productive of serious and unjustified trouble and harassment."
[8] (1988) 165 CLR 247.
I agree with the observations of Judge Dorney QC in the Planning and Environment Court decision of Rofail v Wells (No. 2)[9] that it is not appropriate to cut down some of the essential elements of the term "vexatious" and then omit some of those elements. Judge Dorney QC made the following observations:
[9] [2012] QPELR 164.
"[19]… the respondent has confined the aspect of vexation to the contention that the maintenance of the litigation after 8 July 2011 was “unjustifiably troublesome”.
[20]That aspect was particularised in the further submission that litigation which is lost on a point that is:
(a)squarely raised early in the proceedings as fatal; and
(b)found to be so at the final hearing; but
(c)not directly or satisfactorily responded to at any time up to and including the final hearing;
is a course which results in “serious and unjustified trouble”. The difficulty with that précis is that the meaning determined to be apposite in Mudie contained the additional words: “and harassment”. I do not accept that the term “vexatious” can be cut down in a way so that some of the elements that are said to be essential can be omitted leaving the remaining elements as arguably applicable alone: see, also, the discussion of the meaning advanced by Deane J in Fay, by Williams JA in Mudie: at 291[61].
Having carefully considered the conduct of DERM during the proceedings; my reasons for judgment; and the costs submissions of both parties, it is my view, on balance, that the actions of DERM in raising the futility point cannot be seen as having been frivolous or vexatious. The "futility point" was raised by DERM as part of its contentions given the highly complex statutory and regulatory framework which applied to the proceedings. Although DERM was ultimately unsuccessful on this point, that does not mean that it was not properly raised and arguable. In my view, the actions of DERM in raising the "futility point" fall short of occasioning serious and unjustifiable trouble and harassment to Vanbrogue.
Proper discharge of responsibilities in the appeal
As indicated, Vanbrogue also relies upon the provisions of s.882(4)(g) which allows for an order as to costs in circumstances where the Court is of the opinion that one of the parties to the appeal has not properly discharged its responsibilities during the course of that appeal.
As to what factors are to be taken into account in determining whether or not a party has properly discharged its responsibilities, Vanbrogue makes special reference to r5 of the Uniform Civil Procedure Rules1999 ("UCPR") which provides as follows:
"[r 5] Philosophy—overriding obligations of parties and court
5 (1) The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.
(2) Accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.
(3) In a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way.
(4) The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court."As r4 of the Land Court Rules 2000 ("LCR") make clear, recourse may be had to the UCPR in circumstances where there is no relevant provision under the LCR.
Vanbrogue contends that the impact of r5 of the UCPR on an application brought under s.882(4)(g) of the Water Act is to ensure that the real issues in a proceeding are resolved as expeditiously as possible, at a minimum of expense[10]. DERM contends that the appropriate test under the Water Act is subtlety, but importantly, different to the test contended for by Vanbrogue as arising from r5 of the UCPR.
[10] See submissions of Vanbrogue as to costs, filed 15 April 2013 at paragraph 12.
In this regard, DERM relies in particular on the reasoning of the Land Appeal Court in the case of Chrismel v Department of Natural Resources and Mines[11]. DERM has provided a useful summary of the reasoning in Chrismel in its submissions as follows[12]:
[11] [2005] 26 QLCR 87.
[12] See submissions of DERM as to costs. Filed 1 May 2013.
"15. The Land Appeal Court in Chrismel isolated the following principles in relation to construing s882(4)(g) of the Water Act:
(a)the interpretation of section 882(4) is subject to the following considerations:
(i)the primary rule that each party bear its own costs, which is designed to ensure that citizens are not discouraged from bringing proceedings in that jurisdiction because of the fear that a crippling costs order might be made; and
(ii)the primary rule also recognizes the wider public interest character likely to be involved in the proceedings (paragraph [46] of the judgment);
(b)the "appeal" for the purposes of section 882 is confined to the appeal from the review decision to the Land Court (paragraph [42] of the judgment). It does not include any failure by a party in discharging its responsibilities in respect of the internal review itself (paragraph [43] of the judgment);
(c)the provision is not confined to circumstances where there has been a default in compliance with procedural requirements (paragraph [49] of the judgment);
(d)potential instances of what might constitute conduct of failing to properly discharge responsibilities in the appeal include:
(i)presentation of evidence that is poorly researched (paragraph [48] of the judgment);
(ii)presentation of irrelevant evidence or the raising of plainly unarguable matters (paragraph [50] of the judgment);
(iii)when a party resists an appeal on grounds that are plainly baseless and completely unsustainable (paragraph [51] of the judgment);
(e)it is not necessary for a party seeking costs under the provision to show wilfulness or mala fides in the failure to discharge the relevant responsibility (paragraph [52] of the judgment)."
It is appropriate to turn to the reasoning of the Land Appeal Court, constituted by Justice Philippides, President Trickett and then Member MacDonald. Specifically, the Court in Chrismel had this to say:
"[50]Having regard to the apparent legislative intent evinced in the provisions of s 882(4), which is to give the court the power to compensate a party disadvantaged by the unmeritorious conduct of another party in the appeal, there is no reason why s 882(4)(g) ought not to be construed as extending to a wide variety of unmeritorious conduct in the appeal, such as the presentation of irrelevant evidence or the raising of plainly unarguable matters.
[51]… can a party be said to fail to properly discharge its responsibilities in an appeal when it resists an appeal on grounds that are plainly baseless and completely unsustainable? In our view, s 882(4)(g) is capable of encompassing such a situation. That being so, it should be acknowledged that there may be some degree of overlap between the failure to discharge one’s responsibilities in an appeal and the "frivolous or vexatious" ground in s 882(4)(b). Conduct which falls short of being "frivolous or vexatious", may come within s 882(4)(g) and a fortiori so would the more serious conduct that could be characterised as "frivolous or vexatious"."
Despite the submissions of Mr Loos for DERM, I see nothing in the reasoning of the Land Appeal Court in Chrismel which is inconsistent with the submissions of Vanbrogue that it is appropriate to consider the provisions of r5 of the UCPR when considering an application for costs under s.882(4) of the Water Act.
Vanbrogue argues that there are five matters arising from the reasons for judgment which support its application for costs on the basis of DERM failing to properly discharge its responsibilities in the appeal. These matters can be summarised this way:
· DERM had an obligation to ensure that each of its experts were properly briefed with the information required to form views relevant to the issue in dispute.
· DERM had an obligation to ensure that its experts were properly briefed as to the legal parameters in which their evidence was to be given.
· DERM sought to unnecessarily agitate matters about which there was general agreement between the experts.
· DERM had a responsibility to ensure that its expert evidence was tested before that evidence was litigated, which responsibility it failed in the case of Mr Hausler.
· DERM slavishly applied the HES classification to define the ecological value of the Shalom Lagoon without genuine and proper consideration given to the merits of its application.
Not surprisingly, DERM rejects all of the allegations made by Vanbrogue and says that it conducted itself properly throughout the proceedings.
Mr Williamson for Vanbrogue has properly pointed out that it is the responsibility of DERM to conduct itself as the model litigant. I agree. However, having carefully considered all of the matters relied upon by Vanbrogue in support of its contention, in my view DERM can be seen as having at all times properly discharged its responsibilities in the appeal, even taking into account the burdensome requirements that falls upon it as a model litigant, save for one occasion. DERM's shortfall relates to the evidence of Dr Clayton.
As I observed in Vanbrogue (No 2):
"[76]Dr Clayton confirmed that at the time of the joint report and his own report he had no water quality data available from DERM even though he requested such data from DERM. He advised that he had finally received some data from DERM a few days before giving evidence but he had not had an opportunity to consider it. …
[80]I have no doubt that Dr Clayton is an expert in his field. I note in particular his areas of agreement with Dr Miller. However, Dr Clayton’s evidence suffered from a number of shortfalls. Firstly, through no fault of his own, DERM did not provide him with the tools he requested (the water analysis) until too late to be of any assistance to him."
DERM has never explained, either during the hearing nor in its submissions as to costs, why it failed to provide Dr Clayton with the water quality data that he requested until it was too late for such material to be of any use to him at the trial of this matter. Not only does such conduct fall short of what is to be expected from a model litigant, in my view it falls short of what is expected from a party to properly discharge its responsibilities at an appeal. One would have reasonably thought that it would have been a rather simple proposition for a respondent such as DERM to provide one of its experts with something as seemingly straight-forward as water quality data. The fact that DERM ultimately did supply such requested material to its expert is proof of itself that DERM did have such material. There may indeed be good reason why DERM supplied the material to its expert so late. However, if there is good reason, such good reason has certainly not been made known to this Court.
Accordingly, I am satisfied that it is appropriate to make a costs award in favour of Vanbrogue, but only in so far as regards to the costs it incurred, both directly and indirectly, as a consequence of Dr Clayton not being provided with the water quality data that he requested. For completeness, I should make it clear that this award of costs extends not only to the hearing of the appeal as regards the issue of water quality data, but also to the costs incurred in the meeting of experts in which Dr Clayton was involved, when he should have had available to him the water quality data.
I appreciate that there may be great difficulty in discerning from the case in its entirety those costs which flow directly and indirectly from the failure of DERM to provide Dr Clayton with the requested water quality data. Compared to the totality of the proceedings, in my view the quantum of such costs will be quite small. However, that fact should not deter me from making the award of costs as sought. It is to be hoped that the parties can reach some agreement as between themselves as to the payment of costs so as to avoid any further expenditure of costs in this matter.
Order
The respondent pay the appellant’s costs of the appeal, on the standard basis, limited only to those costs which arise, directly and/or indirectly, from the respondents failure to provide Dr Clayton with the water quality data he requested.
P A SMITH
MEMBER OF THE LAND COURT
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