- Unreported Judgment
- Appeal Determined (QCA)
SUPREME COURT OF QUEENSLAND
Appeal No 3608 of 2011
P & E Appeal No 574 of 2011
Court of Appeal
Application for Leave Sustainable Planning Act
30 August 2011
11 August 2011
Chesterman and White JJA, and Boddice J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made
In Appeal No 2750 of 2011:
1.Application for leave to appeal filed 1 April 2011 is refused.
2.The applicant is to pay the first and third respondents’ costs of and incidental to that application to be assessed on the standard basis.
In Appeal No 3608 of 2011:
1.Originating application filed 29 April 2011 and amended on 8 July and 10 August 2011 is refused.
2.The applicant is to pay the first and third respondents’ costs of and incidental to that application to be assessed on the standard basis.
In Appeal Nos 2750 and 3608 of 2011:
1.Application dated 10 August 2011 and filed by leave on 11 August 2011 is refused.
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – GENERALLY – where the applicant owns several parcels of land which it intends to develop for residential purposes – where the second respondent proposed to construct a power line through parts of the applicant’s lands – where the applicant commenced proceedings in the P & E Court seeking declarations that the second respondent’s proposal to have the land designated for community infrastructure was unauthorised – where the primary judge made directions in relation to resolving the dispute by way of filing affidavits – where the applicant seeks to have those orders set aside – where the applicant filed a separate originating application in the Court of Appeal regarding the designation of the land – where the second respondent subsequently suspended the designation process – whether the application for leave should be granted – whether the originating application should be allowed
PROCEDURE – COSTS – ORDER FOR COSTS ON INDEMNITY BASIS – where designation of land was no longer an issue – where the applicant contended that the further prosecution of the applications was therefore pointless – where the applicant therefore made a third application seeking costs on an indemnity basis from the second applicant and the removal of any references to its land from the second respondent’s website – whether the third application should be allowed
Supreme Court of Queensland Act 1991 (Qld), s 29(1)
Sustainable Planning Act 2009 (Qld), s 200, s 201, s 203, s 207, s 211, s 222, s 223, s 224, s 225, s 227, s 436, s 446, s 456, s 498, schedule 3
Sustainable Planning Regulation 2009 (Qld), s 8, schedule 2
Uniform Civil Procedure Rules 1999 (Qld), r 685
Re: The Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622;  HCA 6, considered
A Abaza (solicitor) for the applicant
P J Flanagan SC, with S A McLeod, for the first respondent
M D Hinson SC for the second respondent
P J Flanagan SC, with S A McLeod, for the third respondent
A Abaza (solicitor) for the applicant
Crown Solicitor for the first respondent
Frehills Lawyers for the second respondent
Crown Solicitor for the third respondent
 CHESTERMAN JA: The applicant owns seven parcels of land which it intends to develop for residential purposes. The land is adjacent to the Pacific Highway, west of Burleigh. Until recently ENERGEX proposed to construct a power line from Mudgeeraba to Tugun to enhance the supply of electricity to the southern part of the Gold Coast. The proposed line would have crossed parts of the applicant’s lands.
 On 28 January 2011 ENERGEX wrote to the applicant:
“Following the completion of technical studies, environmental assessment and community consultation, ENERGEX … has identified a final route for its proposed Mudgeeraba to Tugun 110kV powerline.
In accordance with the provisions of the Sustainable Planning Act 2009, ENERGEX’s next step … is to undertake further consultation with landowners affected by the proposal, before seeking the approval of the Minister for Natural Resources, Mines & Energy to proceed with the development of this community infrastructure.
As a land owner directly affected by the proposed development … please find attached a “Notice of Proposed Designation of Land for Community Infrastructure …” detailing the area of land which is the subject of the designation proposal.
As a party to this process, you are invited to lodge a written submission with ENERGEX … .”
 The letter enclosed seven such notices of proposed designation, one in respect of each of the seven lots of land owned by the applicant which would be affected by the designation. Each notice was in identical terms save for the identification of the land. They were in these terms:
“ENERGEX … proposes to make a request to the Hon Stephen Robertson MP, Minister for Natural Resources, Mines & Energy to designate land for community infrastructure under the … Act, chapter 5, part 1.
ENERGEX invites submissions about the proposed designation.
The accompanying plan(s) shows how the proposed designation affects your property described below … .
The land is proposed to be designated for ENERGEX’s proposed Mudgeeraba to Tugun 110kV Sub-Transmission Line Project, which involves constructing a new 110kV power line over a 14.5km route from ENERGEX’s Mudgeeraba Bulk Supply Substation, Varsity Lakes to ENERGEX’s proposed Tugun Bulk Supply Substation, Bilinger, connecting into ENERGEX’s existing Currumbin Zone Substation, Currumbin.
The project will comprise 7.8km of double circuit underground construction, with the remainder as double circuit overhead construction. Approximately 80% of the route is to be contained on State and Local Government owned land, including or adjacent to the Pacific Motorway.
The project involves the clearing of vegetation, installation of foundations, erection of concrete poles, stringing of conductors, construction of new or upgraded access tracks and all ancillary and associated sub-transmission line construction works.
This community infrastructure is described under the Sustainable Planning Act, schedule 2, part 2 as -
11.operating works under the Electricity Act 1994.
A copy of the assessment report prepared for the … Powerline Project … may be viewed at either the ENERGEX Office … or at the following locations … .
A copy of the assessment report may also be downloaded from the ENERGEX website at … .
Any person … may make a submission about any aspect of the proposed designation of land and development for the community infrastructure. Properly made submissions should be in writing, dated and signed by each person … who made the submission; state the name and address of each person … who made the submission; and state the grounds of the submission and the facts and circumstances relied on in support of the grounds.
Submissions are to be addressed to … and be received on or before 5pm on Friday 4 March 2011.”
 Section 200 of the Sustainable Planning Act 2009 (“the Act”) provides that a Minister or a local government may designate land for community infrastructure prescribed under a regulation. Section 8 of the Sustainable Planning Regulation 2009 (“the Regulation”) provides that community infrastructure stated in Schedule 2 is prescribed for s 200 of the Act. Schedule 2 Part 2 of the regulation contains Item 11; “operating works under the Electricity Act 1994”.
 The dictionary found in Schedule 3 to the Act explains that the process of designation means only the identification of land to be used for community infrastructure. It does not involve taking the land or physically interfering with it. Section 207 sets out matters the Minister must consider before designating, land. After designation the Minister must notify every owner of land affected by the designation and the local government in whose area the land is located, of the designation. By s 211 if a local government receives such a notice it must note the designation on its planning scheme, but the notation does not take effect as an amendment to the scheme.
 By s 201 the Minister may designate land for community infrastructure only if satisfied that the infrastructure will:
(a)Facilitate the implementation of legislation and policies about environmental protection;
(b)Facilitate the efficient allocation of resources;
(c)Satisfy statutory requirement or budgetary commitments of the State for the supply of community infrastructure;
(d)Satisfy the communities expectations for the efficient and timely supply of the infrastructure.
 By s 203 development pursuant to a designation is exempt development to the extent that it is self-assessable development, development requiring compliance assessment, or assessable development under a planning scheme, or reconfiguring a lot. The first three categories of development made exempt by the designation are described in Chapter 6 of the Act. A land owner who suffers hardship by reason of the designation may ask the designator to buy his land or the interest in it affected by the designation (s 222). Within 40 business days of the request the designator must grant or refuse it (s 223). If he refuses the owner may appeal to the Planning and Environment Court (“P & E Court”) (s 225). If the designator agrees to buy the land he must within five business days tell the owner of the decision (s 224) and if within a further 40 business days no agreement has been made for acquisition the designator must act to resume the land with the consequences for compensation set out in the Acquisition of Land Act 1967 (Qld) (s 227).
 Section 456 of the Act provides that any person may bring a proceeding in the P & E Court for a declaration about “a matter done, to be done or that should have been done for this Act”; or about “the lawfulness of land use … .”
 On 25 February 2011 the applicant commenced proceedings in the P & E Court seeking a number of declarations pursuant to s 456 of the Act. These were expressed in various formulations, but all but one sought a declaration that ENERGEX’s proposal to have the applicant’s land designated for community infrastructure was unauthorised, or unlawful. The sixth declaration sought was that upon the proper construction of s 200 of the Act the first respondent, the Minister for Energy and Water Utilities, was “disqualified for bias and for conflict of interest and duty from considering the application” for the designation. The parties to the proceeding, in addition to the applicant, were The Hon Stephen Robertson, as first respondent, and ENERGEX, as second respondent. Mr Robertson was the relevant Minister.
 The application set out the grounds relied upon for the declarations sought in substantial detail, running to 12 closely typewritten pages with a further five pages of detailed factual assertions contained in a schedule.
 The applicant and respondents all appear to have considered that the resolution of the dispute should be prompt. They accordingly approached the P & E Court for directions for a trial which the court tentatively fixed for 30 and 31 May 2011.
 The directions hearing took place before Judge Searles on 18 March 2011. There was a difference in approach between counsel for the applicant and counsel for the two respondents. The applicant wished an exchange of pleadings and disclosure before moving to a hearing. The respondents proposed proceeding by way of the preparation and filing of affidavits to address the issues raised in the detail of the application. Judge Searles preferred that course, being persuaded that the application itself was sufficient to identify what issues had to be addressed in the affidavits. His Honour also thought it likely that all relevant documents not in the applicant’s possession would be exhibited to the respondents’ affidavits. His Honour, however, noted that should the applicant fear relevant documents existed but had not been exhibited a later application for disclosure could be made.
 The directions actually made on 18 March 2011 were:
1.The applicant file and serve affidavits by 1 April 2011;
2.The respondents file and serve affidavits in response by 15 April 2011;
3.The applicant deliver its written submissions not less than 10 days prior to the hearing of the application;
4.The respondents deliver their written submissions in response not less than five days before the hearing of the application;
5.The application must be heard in two days in May 2011;
6.The matter be further reviewed on 15 April 2011;
7.The name of the first respondent be amended to “Minister for Energy and Water Utilities”.
 On 1 April 2011 the applicant filed an application for leave to appeal against those orders. The application seeks to have those orders set aside, and in addition:
“(c)Declare, on the undertaking of the Attorney General to abide this declaration as applying to all Ministers of the Crown for the time being, that the First Respondent … is disqualified for bias from considering and further proceeding on the purported application of “(ENERGEX)” under s.200 of the … Act … .
(d)Declare that the Guidelines about Environmental Assessment and Public Consultation Procedures for Designating land for Community Infrastructure December 2006 Version 1.1 purportedly made under s.760(1) (b) of the (Act) … are void for not complying with sub clause (viii) of the definition “properly made submission” appearing in Schedule 3 to the (Act);
(e)Declare that the purported Notices directed to the Applicant of proposed … designation … are void on the ground of non compliance with sub clause (viii) of the definition “properly made submission” … .
(f)Declare on the proper construction of s.200 of the … Act the First Respondent cannot … without the consent of the Applicant designate the Lands of the Applicant.”
 The application also sought directions that the application and certain of the applicant’s affidavits be delivered to The Hon Paul Lucas, Attorney-General, and the State of Queensland, “so that they may be heard”; and an order that if the Attorney-General and the State of Queensland did not appear that they be joined as parties as third and fourth respondents respectively. The Attorney-General elected to become a party, the third respondent.
 As well as applying for leave to appeal the applicant also filed, in the Court of Appeal, on 29 April 2011 a separate originating application. It was amended on 8 July 2011 and again on 10 August 2011. As finally amended the application seeks pursuant to s 29(1) of the Supreme Court Act of Queensland 1991, “the following Declarations and Orders:
1.Declare that the Attorney-General … on behalf of all Ministers of the Crown have (sic) no jurisdiction to designate the Lands of the Applicant for community infrastructure under s.200 of the … Act unless the applicant:
(a)for designation be the owner of the said lands; or
(b)holds the benefit of an easement … under the Land Titles Act 1994; or
(c)has the benefit of another agreement with the Applicant.
2.Declare that the Attorney-General … on behalf of all Ministers of the Crown are (sic) Prohibited from designating the Lands of the Applicant … absent the matters in paragraph 1(a) (b) (c).
4.Declare that the Guidelines … purportedly made under the Integrated Planning Act 1997 and purportedly continued in operation under the … Act are not within the ambit of the power conferred by s.5.9.9(1)(b) of the Integrated Planning Act … in that they make no provision for properly made submissions to a Minister as required by subparagraph (viii) … in Schedule 3 to the … Act … and they purport to create another process not authorized by s.5.9.9.”
 The applicant asked to have this application heard with its application for leave to appeal, and the two were listed for hearing on the same day.
 ENERGEX is reconsidering the proposal to construct the transmission. Its reasons for doing so include the substantial public opposition to the proposal which will affect a large number of properties; the government’s response to this opposition in an election year; the cost of those responses; the diminished urgency of the need to supply additional electricity to the Tugun area; the possibility that the pylons for the transmission line at its southern end may create a hazard for aircraft landing at or taking off from Coolangatta Airport.
 ENERGEX resolved to suspend the designation process on 27 June 2011. On 20 July 2011 it notified the applicant of its decisions to suspend the community infrastructure designation process and to review the means by which additional power may be supplied to the southern part of the Gold Coast.
 This decision by ENERGEX prompted the applicant to make a third application dated 10 August 2011 and filed by leave on 11 August 2011 which claims relief only against ENERGEX. It seeks orders pursuant to UCPR 685 that ENERGEX pay the applicant’s costs of the other applications on the indemnity basis, and that ENERGEX remove from its website all references to the applicant’s land as being potentially affected by the proposed transmission line.
 When the applications were called on for hearing the applicant’s solicitor informed the court that by reason of the decision to suspend the designation process it did not intend to pursue either the application for leave to appeal or the amended originating application for declarations. The applicant contended that the further prosecution of those applications was pointless. It has achieved what it sought in the proceedings by the suspension. The applicant persisted with only the third application, that against ENERGEX. It submitted that the suspension of the designation process had occasioned the waste of all costs incurred in the proceedings. As against the first and third respondents the applicant submitted there should be no order as to costs.
 ENERGEX opposed the making of any order for costs against it, and submitted that the appropriate order was that there be no order as to costs.
 The first and third respondents, the Minister for Energy and Water Utilities and the Attorney-General, sought an order against the applicant for their costs of resisting both applications.
 The respondents argue that the applications would inevitably have failed regardless of ENERGEX’s reconsideration.
 UCPR 685 provides:
“(1)If, for any reason, it becomes unnecessary to continue a proceeding other than for deciding who is to pay the costs of the proceeding, any party to the proceeding may apply to the court for an order for the costs.
(2)The court may make the order the court considers just.”
 It is at once obvious that the rule gives the court no power to make the order sought with respect to ENERGEX’s website. The applicant identified no other source of power or legal basis for the order. Mr Hinson SC who appeared for ENERGEX informed the court that the website no longer contained any reference to the applicant’s lands in connection with the earlier proposed designation of them for community infrastructure. In the circumstances the claim for relief in respect of the website can be ignored.
 In Re: The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622 McHugh J said of the rules of the High Court in substantially identical terms to UCPR 685:
“In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties … . … In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action … . … Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried.” (624-5) (footnotes omitted)
 It is necessary to consider separately the submissions with respect to the two applications.
Application for Leave to Appeal
 This application faced obvious and intractable difficulties. The only orders made by the P & E Court which might be the subject of an appeal were procedural, preliminary and related only to the manner in which the substantive hearing of the applicant’s challenge should be conducted. Secondly, the application seeks final orders giving it victory in the proceedings without the production of any evidence, or the testing of evidence, or an adjudication on the merits of the rival contentions in dispute.
 It is necessary to deal separately with the two aspects of the application for leave to appeal.
 The applicant had a separate complaint about direction 7, amending “The Hon Stephen Robertson” to “Minister for Energy and Water Utilities.” The change was only to the description of the office holder. Mr Robertson was not sued in any personal capacity. He was made a respondent because at the time he held the office of the relevant Ministry.
 The applicant’s concern about the change has no rational basis. It did not remove a party to the proceedings as the applicant seemed to fear. It did not prejudice the applicant in any way with respect to the future conduct of the proceedings. It merely changed the description of the first respondent from a designation by name of office holder to designation of office holder from time to time. If anything the change might have worked to the applicant’s benefit, if The Hon Mr Robertson ceased to be Minister during the course of the proceedings. Furthermore the applicant was represented by experienced counsel at the directions hearing who made no objection to the amendment.
 By s 498 of the Act a party to a proceeding in the P & E Court may appeal a decision of that court on the ground “of error or mistake in law on the part of the court” but “only with the leave of the Court of Appeal …”.
 It must be doubted whether the directions made by Judge Searles amounted to a decision against which appeals may be brought by leave for errors of law. The Act appears to draw a distinction between decisions from which, pursuant to s 498, there may be an appeal and “orders or directions” that the court may make, pursuant to s 446, “about the conduct of a proceeding”. It is, I think, a plausible construction of the Act that the limited right of appeal does not extend to orders or directions made as to the conduct of a proceeding. It is, however, not necessary to express a concluded opinion on this point.
 There may be (rare) occasions on which orders made with respect to a question of procedure give rise to a question of law, but the directions made in this case clearly do not.
 A second obstacle is that the making of the directions involved no error. The applicant did not suggest any, except in the case of direction 7. Alternative modes of proceeding were proffered to his Honour who preferred the respondents’ suggestion that the hearing proceed on affidavits rather than pleadings and disclosure. A reason for the choice was indicated in the course of argument: the detailed application was sufficient as a pleading; to the extent that exhibits to affidavits did not disclose all relevant documents the judge held open the prospect that the applicant would apply for disclosure when and if the need for it was demonstrated.
 The defect in the application for leave to appeal insofar as it concerned the making of orders finally disposing of the proceeding are too obvious to need further elaboration. What was sought was leave to appeal when there had been no decision against which there could have been an appeal. Because of the applicant’s response to the directions made on 18 March 2011 the application did not proceed to a hearing. There was no judgment, no decision, which could be appealed.
 The application for leave to appeal was hopelessly misconceived and totally devoid of prospects of success.
 It is a case in which it can be said with absolute confidence that the application would have been refused for reasons which had nothing to do with ENERGEX’s subsequent decision to suspend the designation process.
 It follows that had ENERGEX asked for its costs of the application for leave to appeal it would have succeeded. Instead it is content with no order, which should therefore be the outcome.
 The first and third respondents do seek their costs and for the reasons given are entitled to them.
Further Amended Originating Application
 This sought declarations pursuant to s 29(1) of the Supreme Court of Queensland Act 1991 which provides:
“Subject to this Act, the Court of Appeal has jurisdiction to hear and determine all matters that, immediately before the commencement of this section, the Full Court had jurisdiction to hear and determine.”
 It is not immediately apparent why the subsection is a source of power for making the declarations sought in the Further Amended Originating Application in which the only relief sought are declarations. In his oral submissions the applicant’s solicitor seemed to suggest that it was only the Full Court (or the Court of Appeal) which could provide relief in the nature of prohibition preventing ENERGEX’s unlawful designation of the applicant’s land. The short answer is that the application did not seek any such relief. Moreover the submission overlooks the change in procedure wrought by the Judicial Review Act 1991. Prerogative writs have been superseded by orders for review made by judges in the Trial Division.
 The applicant submitted that the P & E Court had no jurisdiction to make the declarations sought in the Further Amended Originating Application filed in the Court of Appeal. The submission is puzzling. Only declaratory relief was sought and s 456 of the Act appears a sufficient source of jurisdiction for the P & E Court to have given that relief in a case where what was in issue was the performance of duties and the affecting of rights provided for by the Act. The applicant appeared to confound that jurisdiction to make declarations with the grant of writs of prohibition which are beyond the P & E Court’s power. As I have pointed out such relief was not in question, and where relief of that kind is sought it is the Trial Division of the Supreme Court which an applicant approaches.
 Out of deference to this Court Mr Flanagan SC, who appeared with Mr McLeod for the first and third respondents, did not submit that the Court of Appeal did not have jurisdiction to make the declarations sought in the Further Amended Originating Application. Such a submission may have been made by reference to s 436 of the Act which makes the P & E Court’s jurisdiction under s 456 to make declarations exclusive.
 Mr Flanagan SC instead argued that in circumstances where the applicant had sought declarations from the Court of Appeal similar to those sought from the P & E Court without proceeding to a hearing in the P & E Court this Court would not have itself have embarked upon a determination of the questions by way of original jurisdiction.
 The submissions are self-evidently correct. Accordingly had the originating application proceeded to a hearing it would have been dismissed for reasons unconnected with the suspension of the designation process. Its dismissal would have entitled the respondents to orders for costs. ENERGEX does not seek its costs. The first and third respondents do and they are entitled to the order.
 The applicant submitted that there should be no order for costs as between it and the first and third respondents because its initiation of proceedings was reasonable and that its case for relief was strong. It is impossible to know whether the submission is correct or not. The applicant did not put the matter to the test by arguing its case in the P & E Court. The submission, in any event, is irrelevant. It does not matter that its initial application to the P & E Court may have succeeded. What is in issue in this Court is the reasonableness of the applicant’s seeking leave to appeal against directions made in the P & E Court, and commencing proceedings in this Court seeking relief substantially identical to that sought in the P & E Court, which it did not pursue.
 In my opinion the following orders are appropriate:
(a)The application for leave to appeal filed 1 April 2011 should be refused. The applicant should pay the first and third respondents’ costs of and incidental to that application to be assessed on the standard basis. There should be no order as to the costs of the second respondent.
(b)The originating application filed 29 April 2011 and amended on 8 July and 10 August 2011 should be dismissed. The applicant should pay the first and third respondents’ costs of and incidental to that application to be assessed on the standard basis. There should be no order as to the costs of the second respondent.
(c)The application dated 10 August 2011 and filed by leave on 11 August 2011 should be dismissed with no order as to costs.
 WHITE JA: I have read the reasons for judgment of Chesterman JA and agree with those reasons and the orders proposed.
 BODDICE J: I have read the reasons for judgment of Chesterman JA. I agree with those reasons and the proposed orders.
- Published Case Name:
Hammercall Pty Ltd v Robertson & Anor; Hammercall Pty Ltd v Robertson & Ors
- Shortened Case Name:
Hammercall Pty Ltd v Robertson
 QCA 214
Chesterman JA, White JA, Boddice J
30 Aug 2011
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|Appeal Determined (QCA)|| QCA 214||30 Aug 2011||-|