Walsgott v Maroochy Shire Council

[2005] QPEC 12

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Walsgott v Maroochy Shire Council & Anor [2005] QPEC 012

PARTIES:

ANTHONY WALSGOTT
Appellant
v
MAROOCHY SHIRE COUNCIL
First Respondent
and
PARADISE WAY PTY LTD (ACN 010 823 533)
Second Respondent

FILE NO/S:

4763/2004

DIVISION:

Planning & Environment Court

PROCEEDING:

Application for costs

ORIGINATING COURT:

Planning & Environment Court of Queensland, Brisbane

DELIVERED ON:

 8 March 2005

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions on costs received from the second respondent on 10 February 2005, and the applicant on 21 February 2005

JUDGE:

Alan Wilson SC, DCJ

ORDER:

Application for costs refused

CATCHWORDS:

PLANNING LAW – COSTS – Integrated Planning Act 1997, s 4.1.23(2) considered

Integrated Planning Act 1997
Local Government (Planning and Environment) Act 1990 Uniform Civil Procedure Rules Ch 17 Pt 2

Cases considered:

Australian Conservation Foundation Gold Coast Inc v Gold Coast City Council (1997) QPLR 84
Cooloola Ratepayers and Residents Association Inc v Cooloola Shire Council (2004) QPEC 018
Dawson v Maroochy Shire Council [2004] QPELR 254
Mudie v Gainriver Pty Ltd (No 2) (2003) 2 Qd R 271
Oakden Investments Pty Ltd v Pine Rivers Shire Council [2003] QPELR 333
O’Connor v Herberton Shire Council (1998) QPELR 485
Oshlack v Richmond River Council (1998) 193 CLR 72
RB Williams Tractors Pty Ltd v Queensland (1998) QPELR 26
Reelaw Pty Ltd v Queensland Heritage Council
Sinnathamby v Purcell [2002] QPEC 65

COUNSEL:

Mr Walsgott, applicant in person
Mr Fahl, solicitor, for the second respondent

SOLICITORS:

Applicant self-represented
P&E Law for the second respondent

1. The applicant began proceedings by Originating Application on 24 December 2004 seeking, among other things, an interim injunction restraining the second respondent (the developer) from removing or damaging any flora or fauna on vacant land at Tanah Street, Coolum.  The developer gave undertakings about that matter and the applicant’s claim for primary relief, in which he sought a declaration that the developer’s application for a material change of use in respect of that land was impact assessable (and not code assessable, as had occurred) under Maroochy Plan 2000, was subsequently heard on 19, 21 and 25 January 2005.

1. The application was dismissed, with reasons delivered on 2 February 2005.  The developer indicated it may seek costs and later delivered written submissions to that end, and Mr Walsgott also responded in writing.  The first respondent has advised it does not seek costs.

1. Costs in this jurisdiction are governed by s 4.1.23 of the Integrated Planning Act 1997 (IPA), which relevantly provides:

(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;

(c)a party has not been given reasonable notice of intention to apply for an adjournment of the proceeding;

(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…

1. Although s 4.1.23 differs from its predecessor, s 7.6 of the Local Government (Planning and Environment) Act 1990, the fundamental premise applying to costs in this jurisdiction did not change with IPA: ie, unlike ordinary civil matters where costs ordinarily follow the event[1], the primary rule in this jurisdiction is that each party bears its own costs, but they may be ordered against a party if the court considers it appropriate and the circumstances can be categorised as falling within one of the sub-paras of s 4.1.23(2).  In Mudie v Gainriver Pty Ltd (No 2) (2003) 2 Qd R 271 McMurdo P and Atkinson J, after considering the objectives of the former legislation[2] said[3]:

[30]The sub-paragraphs of s 7.6(1A) suggest the legislative intent is to give the court a power to award costs to compensate a party disadvantaged by the unmeritorious conduct of another party, as particularised in those sub-paragraphs. The legislature must have intended to give the courts a discretion to award costs when any party conducts the proceedings in a way that is frivolous or vexatious …

[1]Uniform Civil Procedure Rules Ch 17 Pt 2.

[2]Section 1.3.  

[3]At 282.

1. Later in the same judgment, their Honours said[4]:

[34]It seems likely that one purpose of section 7.6(1) of the Act, which sets out the general rule that each of the parties bear their own costs, consistent with the objectives of the Act, is to ensure that citizens are not discouraged from appealing or applying to the Planning and Environment Court because of fear that a crippling costs order might be made against them.  The provision no doubt also recognises the public interest character of some applications to the Planning and Environment Court[5].  For that reason, there is often an understandable judicial reluctance, demonstrated in the planning cases referred to by his Honour, in finding proceedings brought by citizens to be frivolous or vexatious.

[4]At 283.

[5]Eg, s 2.24 of the Act and see Oshlack v Richmond River Council (1998) 193 CLR 72

1. Although the purpose of the Integrated Planning Act 1997, expressed in s 1.2.1 is much broader and more ambitious than the objectives contained in s 1.3 of the former legislation, the change is not in terms which suggest the legislative approach to costs generally, and the discretion to award them, is different from that discussed in Mudie.  That is the view which has previously been espoused in this court: in Dawson v Maroochy Shire Council [2004] QPELR 254, Dodds DCJ said:

[12]The discretion to make a costs order exists only in limited circumstances.  The circumstance in section 4.1.23(2)(a) IPA requires not just that the person instituting the proceeding have a desire to delay or obstruct but that was their only purpose.  As Quirk DCJ observed in Oakden Investments Pty Ltd v Pine Rivers Shire Council & Anor, P&E Appeal, 2979/02, 17 December 2002, the operative word is “merely”.  For section 4.1.23(2)(b), a lack of success does not necessarily show that the proceeding was frivolous or vexatious:  Mudie v Gainriver Pty Ltd & Gatton Shire Council [2002] QCA 546, judgment delivered 13 December 2002. Nor are “frivolous” or “vexatious” “necessarily equivalent to the absence of a justifiable view as to the likelihood of success”: Oakden Investments Pty Ltd.

[13]Reference to other cases in the Planning and Environment Court indicates a cautious approach to finding proceedings are frivolous or vexatious.  That is because the present and previous planning legislation recognizes and provides expression for the wider public interest in planning issues, that is, not only the interests of an applicant or a local authority.  Nonetheless, in an appropriate case the circumstances of the case, public policy considerations and the interests of justice may result in the discretion being exercised under one of the subparts of section 4.1.23(2).

1. The second defendant relies specifically upon subsections 4.1.23(2)(a)-(d).

Section 4.1.23(2)(a) – Proceeding was instituted merely to delay or obstruct

1. The second respondent asserts this sub-section reflects the applicant’s actual motive, which he attempted to disguise under his expressed desire to preserve flora and fauna.  The motive behind a party’s commencement of litigation will not always be easily detectable and in many cases, it might be expected, will be nebulous, shifting, or multi-faceted.  The use of the word “merely” in the provision certainly suggests the presence of the impugned motive must be obvious.  As Quirk DCJ said in Oakden Investments Pty Ltd v Pine Rivers Shire Council [2003] QPELR 333, at 334:

The operative word is “merely”.  A sensible interpretation of the sub-section would indicate that it contemplates an absence of any real merit in the appellant’s case (or a basis for belief on the appellant’s part in the presence of some such merit).  A desire to delay or obstruct a project would not, in itself, be enough.

1. In Dawson v Maroochy Shire Council [2004] QPELR 254 Dodds DCJ said:

The discretion to make a costs order exists only in limited circumstances.  The circumstance in s 4.1.23(2)(a) IPA requires not just that the person instituting the proceeding have a desire to delay or obstruct, but that was their only purpose.

1. The reasons for judgment in this matter showed the applicant raised contentions which were not unmeritorious, and warranted consideration.  Nothing in the Reasons for judgment, or the applicant’s conduct of the case, justifies a finding that a desire to delay or obstruct was his sole, or even primary purpose.  Rather, it was apparent that he represented a group of persons with a genuine concern for the preservation of flora and fauna on this site who were troubled by Council’s decision to accept that code assessment was all that was necessary in the circumstances, and impact assessment (which would have allowed members of the public the opportunity to make submissions) was unnecessary.  The length of the Reasons and the issues they traverse are a clear illustration that the application, while it failed, raised a legitimate question and did not lack merits.

1. Raising serious questions in a proceeding may not raise a shield against the operation of the sub-section.  Nor can it be allowed to mask an applicant’s true motive; but when, as here, an applicant can show that real issues surround its application, the conclusion that its sole motive was delay or obstruction is not readily reached.  When genuine issues are manifest it may be relatively easy for an applicant, in a matter of this kind, to show “public interest character” of the kind mentioned in Mudie[6].

   [6]Supra, at p 283.

1. This applicant has been commendably frank.  He did make it clear that his motive, in association with other members of the community, was to try and mitigate the destruction of flora and fauna and fauna habitat on the subject land.  He has done so in a way involving proceedings which seek declarations on serious questions of law that directly affect the public, both locally and within the wider ambit of the area touched by the Maroochy Planning Scheme.  That conclusion is more readily reached in light of the developer’s acceptance, in argument, of the proposition that the area falls within a special category under that Planning Scheme, and did exhibit some environmental and ecological values, albeit at a level which I found did not require impact assessment.

Section 4.1.23(2)(b) – Proceeding (or part of proceeding) to have been frivolous or vexatious

1. The words “frivolous or vexatious” are not defined in the Act and should be given their ordinary meaning.  “Frivolous” means of little value or no value or importance, paltry; (of a claim, charge, etc) having no reasonable grounds … lacking seriousness or sense; silly and “vexatious” means causing or tending to cause vexation, annoyance or distress … (in law) instituted without sufficient grounds for winning purely to cause trouble or annoyance to the defendant[7].

   [7]The New Shorter Oxford English Dictionary.

1. In Mudie (supra) McMurdo P and Atkinson J said at p204:

Unquestionably, something much more than lack of success needs to be shown before a party’s proceedings are frivolous or vexatious … whether proceedings are vexatious or oppressive will turn on the circumstances of the case and will include public policy considerations and the interests of justice.

1. Other cases show that before proceedings will be categorised in this way they must be clearly seen to be manifestly groundless[8]; and, a party’s contentions will not be so categorised as long as they were at least arguable, even if not overburdened with merit[9]; and, a party’s good faith, and the question whether the proceedings were intended merely to annoy or embarrass, are relevant issues[10].

   [8]      RB Williams Tractors Pty Ltd v Queensland (1998) QPELR 26.

   [9]      O’Connor v Herberton Shire Council (1998) QPELR 485.

   [10]Australian Conservation Foundation Gold Coast Inc v Gold Coast City Council (supra); and, see Sinnathamby v Purcell [2002] QPEC 65; and, Dawson v Maroochy Shire Council (2004) QPELR 254.

1. In Reelaw Pty Ltd v Queensland Heritage Council[11] Wall QC DCJ said that even if all of a party’s issues fail, they cannot be classed as frivolous or vexatious if they are not groundless, superficial, or devoid of merit.  Other indicators that may, his Honour said, negate a claim of frivolity or vexatiousness against a party include:

   [11]Wall QC DCJ, unreported, 10 December 2004.

(a)     actually challenging and testing an opponent’s evidence;

(b)     submitting and advancing arguments of some substance, notwithstanding that they fail; and

(c)     calling witnesses who impart genuine opinions and evidence.

1. Conduct of this kind may be contrasted with that of a party who brings an action but takes a relatively passive role by, eg, not calling any witnesses or expert witnesses, not cross-examining an opponent’s witnesses, and making statements that do not adduce evidence but are merely self-serving[12].

   [12]Cooloola Ratepayers and Residents Association Inc v Coolooola Shire Council (2004) QPEC 018.

1. A matter of importance, when allegations of frivolity and vexatiousness are raised, is the public policy consideration implicit in the legislation and recognised in Mudie, which dictates that a balance be struck between not discouraging citizens from approaching the court, while not encouraging manifestly groundless actions. 

1. The developers attack on this ground focuses on the fact that, as the applicant has admitted, his concern is with the preservation of flora and fauna but the proceedings were instigated in a fashion which involved reference to parts of the Planning Scheme focussing upon the proximity of the land to a waterway and the parts of the Scheme called up by that geographical fact.  While the evidence, including expert evidence adduced by the applicant, was ultimately rejected it cannot be said the applicant’s case did not attempt to focus upon what became the primary issue in the matter: the proper construction and effect of cl 4.3 of the Planning Scheme.  On any view, as the Reasons again disclose, the applicant had an arguable case and the submissions and evidence he made and presented were germane to real questions raised by the legislation.  Once that is accepted, the proceedings are plainly far from offending the sub-section.

Section 4.1.23(2)(c) – a party has not been given reasonable notice of intention to  apply for an adjournment of the proceeding

1. The proceedings were commenced on 24 December 2004 and first came before the court on 7 January 2005.  The application sought, among other things, an interim order restraining the exercise of any development rights under a development permit issued some considerable time earlier until the resolution of the proceedings.  When the matter first came before the court it was not supported by any affidavits or other evidence and the applicant immediately sought an adjournment until 10 January, which was opposed by the developer.  The adjournment was granted, and costs were reserved.  The developer had, by that time, filed affidavits in connection with the application for interim relief.

1. The Originating Application said, in a notice in bold type, that all the applicant sought on 7 January was a hearing date in the following week commencing 10 January; but, as the developer points out, it does not say that no interim relief will actually be sought on the first return date.  While it was not, in those circumstances, imprudent of the developer to prepare for the hearing of the interim application on 7 January, it transpires that nothing was thrown away because affidavits relevant to the question of interim relief would remain useful when and if that matter came on for determination.  The appearance itself was necessary to determine an early date upon which the court might deal with both the interim, and final relief sought – as the notice clearly indicated.

1. As the applicant also points out, there was no prejudice to the developer because he had not at that time received a necessary permit to commence certain clearing works.

Section 4.1.23(2)(d) – a party has incurred costs because a party is required to apply for an adjournment because of the conduct of another party

1. The developer’s complaint is that between 7 and 10 January 2005 the applicant served it with so much material that it was forced to seek an adjournment of the hearing set for 13 January.  The allocation of an early hearing date was hardly surprising, however, in light of the developer’s contention at the first hearing on 7 January that the question of interim and final relief should be expedited so as to minimise inconvenience and prejudice to it; and the dates offered by the court were not objected to.

1. The developer also complains that much of the applicant’s material was extraneous or irrelevant, and was not relied upon at the final hearing.

1. The adjournment sought by the developer on 13 January was granted with the applicant’s consent.  The developer’s complaint is that much of this material could, and should have been delivered earlier but there is, again, no evidence of prejudice and the developer had, itself, asserted it was ready and able to argue the question of interim relief six days earlier.

1. There were, then, several reasons why costs were incurred (by both parties) in appearances in the short period before the final hearing began (and, by reason of undertakings offered by the developer, interim proceedings became unnecessary).  It cannot be said the developer has incurred costs solely as a consequence of some conduct on the part of the applicant.

1. The developer’s application for costs is refused.