Loading...
Queensland Judgments

beta

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Queensland Heritage Council v The Corporation of the Sisters of Mercy of the Diocese of Townsville

 

[2014] QCA 190

 

SUPREME COURT OF QUEENSLAND

  

PARTIES:

FILE NO/S:

Court of Appeal

PROCEEDING:

Application for Leave Sustainable Planning Act – Further Order

ORIGINATING COURT:

DELIVERED ON:

8 August 2014

DELIVERED AT:

Brisbane 

HEARING DATE:

Heard on the papers

JUDGES:

Margaret McMurdo P and Gotterson JA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Each party bear its own costs of the application and appeal.

CATCHWORDS:

COSTS – DEPARTING FROM THE GENERAL RULE – OTHER CASES – UNCERTAINTY OF LAW – where the applicant was given leave to appeal from an order of the Planning and Environment Court – where the appeal was allowed – where the applicant was successful in obtaining the orders sought – where the respondent was equally successful in demonstrating that, if it made out a relevant ground of appeal, then it was open to it also to argue the issues relevant to the physical condition and structural integrity of the convent – where the difficulties of interpretation arose from the need to reconcile provisions of the two relevant statutes – whether costs of the application and appeal should be awarded

Queensland Heritage Act 1992 (Qld), s 51, s 161, s 162 Sustainable Planning Act 2009 (Qld), s 496

COUNSEL:

No appearance for the applicant/appellant, the applicant/appellant’s submissions were heard on the papers No appearance for the respondent, the respondent’s submissions were heard on the papers

SOLICITORS:

Crown Law for the applicant/appellant Thompsons Lawyers for the respondent

[1] MARGARET McMURDO P:  In this case I would have ordered that the application for leave to appeal be refused with costs.  But in light of the majority’s orders granting the application and allowing the appeal, I agree with Douglas J’s reasons for now ordering that each party bears its own costs of the application and the appeal.

[2] GOTTERSON JA:  I agree with the order proposed by Douglas J and with the reasons given by his Honour.

[3] DOUGLAS J:  In this matter the applicant/appellant was given leave to appeal against paragraph 2 of the order of the Planning and Environment Court made on 21 June 2013.  The appeal was also allowed by the making of an order, by the majority, that paragraph 2 of that order be set aside.  Leave was granted to the parties to make submissions as to costs in accordance with Practice Direction 3 of 2013.

[4] Neither the application, the draft notice of appeal or the outline of submissions by the applicant/appellant sought costs but a brief oral application was made by counsel when he was asked whether costs of the appeal were sought during the hearing.[1]  The respondent sought its costs at paragraph 46 of its outline of submissions.

[5] The applicant/appellant now, in its written submissions, seeks its costs of the appeal on the basis that it has been essentially successful in obtaining the orders it sought.  It also points out that it was successful in demonstrating that it had an entitlement to seek leave to appeal.

[6] To the contrary the respondent argues that each party should bear its own costs on the basis that the applicant/appellant failed on what it asserted was the principal point of the application, namely that the physical condition or structural integrity of the convent were not matters which could be considered by the Planning and Environment Court in an appeal under s 162 of the Queensland Heritage Act 1992.

[7] It is the case that all three members of this court have expressed the view that, if a ground of appeal under s 162(1) of the Queensland Heritage Act 1992 is made out, then the Planning and Environment Court may, for the purpose of making orders to which s 496(1) and s 496(2) of the Sustainable Planning Act 2009 apply, examine issues which, pursuant to s 51(2)(b) and s 51(3) of the Queensland Heritage Act, were open to the Council itself to examine in making the decision to register.  Those were the issues dealing with the physical condition and structural integrity of the convent and whether they may prevent its cultural heritage significance from being preserved.

[8] Although the applicant/appellant did succeed in obtaining the orders that it sought, the respondent also succeeded in demonstrating that, if it made out a relevant ground of appeal, then it was open to it also to argue the issues relevant to the physical condition and structural integrity of the convent if the Court were to go on to exercise its powers under s 496(1) and s 496(2) of the Sustainable Planning Act.  In those circumstances, it is my view that, each party having succeeded in part in respect of the issues argued, where the difficulties of interpretation arose essentially from the need to reconcile provisions of the two relevant statutes rather than the conduct of the parties, the appropriate order is, as was contended by the respondent, that each party should bear its own costs of the application and appeal.

Footnotes

[1] Tr 1-16 ll.25-30.

Close

Editorial Notes

  • Published Case Name:

    Queensland Heritage Council v The Corporation of the Sisters of Mercy of the Diocese of Townsville

  • Shortened Case Name:

    Queensland Heritage Council v The Corporation of the Sisters of Mercy of the Diocese of Townsville

  • MNC:

    [2014] QCA 190

  • Court:

    QCA

  • Judge(s):

    McMurdo P, Gotterson JA, Douglas J

  • Date:

    08 Aug 2014

Litigation History

Event Citation or File Date Notes
QCA Interlocutory Judgment [2014] QCA 190 08 Aug 2014 -

Appeal Status

No Status