SUPREME COURT OF QUEENSLAND

[1]  THE COURT:  In this appeal the court has received written submissions from all represented parties as to the appropriate cost orders.  For the reasons expressed herein the orders described below will be made.

Appeal No 8354 of 2002

[2] In this appeal the appellant was Master Butchers Limited, the first respondents were Daniel Fox and Denise Fox, and the second respondent was the Brisbane City Council.  The appeal was dismissed.  The successful first respondents asked for their costs on an indemnity basis, and that those be ordered to be paid both by the unsuccessful appellant and by the second respondent, the Brisbane City Council.  The second respondent does not ask for any order for costs in its favour, but opposes the order that it should pay the first respondents’ costs.  Both the unsuccessful appellant and the second respondent oppose the proposal that any costs they are ordered to be paid be indemnity costs.

[3] In Appeal No 8354 of 2002 the second respondent appeared and presented arguments in support of the appellant.  The arguments on its behalf focused on the proper construction of the Integrated Planning Act 1997 (Qld). The matters of construction argued were important for all assessment managers acting under that Act.  Although the issues of construction had far wider significance than simply determining the respective rights of the appellant and the first respondents, those first respondents have not submitted with respect to costs, and it does not otherwise appear, that the second respondent Brisbane City Council would have been an appellant if Master Butchers had not.  Thus, it has not been demonstrated that the second respondent acted otherwise than as a responsible public authority made respondent to an appeal.  Further, the first respondents have not submitted that the appellant was not genuinely an appellant, or was in any sense a puppet of the City Council in bringing and arguing the appeal.

[4] Making, for the sake of argument, the same assumption as was made by the majority judgment in Ballymont Pty Ltd & Anor v Ipswich City Council & Ors [2002] QCA 454, namely that the effect of UCPR 766(1)(d) is that the discretion of this court as to costs is unconstrained, no good reason has been shown for ordering that the second respondent pay the costs of the first respondents in the appeal.  The unsuccessful appellant, who appeared by Senior Counsel and presented extensive argument in support of its appeal, accepts that there should be an order it pay those first respondents’ costs.

[5] As to whether those costs should be on an indemnity basis, the first respondents’ written submissions on costs contained (at para 10) the statements that their prime motivation was the upholding of the public interest in the protection of the environment, and the logical and orderly development in Brisbane.  The difficulty in accepting that submission as justifying an order for indemnity costs in this matter is that it did not appear from the arguments advanced on the appeal that the first respondents had any demonstrated concern for the contamination problems with which the appellant was endeavouring to deal, but rather with the effect of the appellant’s desired development upon the amenity enjoyed by those first respondents as adjoining property owners (this comment is based solely on the content and course of the argument on the appeals; the Court has not had regard to the “without prejudice” discussions that Master Butchers has claimed occurred). In those circumstances it is inappropriate to order indemnity costs.

[6] The order in Appeal No 8354 of 2002 will be:

●  that the appellant pay the first respondents’ costs of and incidental to the appeal including the costs of the application for leave to appeal, such costs to be assessed on the standard basis.

Appeal No 8355 of 2002

[7] In this appeal Master Butchers Limited was the unsuccessful appellant, with the Brisbane City Council the second respondent to the appeal, and the first respondents being the parties entitled “Stop Master Butchers Industrial Estate in Hemmant and Tingalpa Action Group” and Marcus Ulrich Scherrer and Jane Paula Scherrer.  This appeal was argued at the same time as Appeal No 8354 of 2002, and the arguments for the appellant and second respondent were presented without distinguishing between those appeals.  It was only the submissions in each appeal from the respective first respondents which varied in their content.

[8] The unsuccessful appellant Master Butchers Limited concedes that in the usual course those first respondents would receive their costs, but contends that there being no solicitor on the record for those respondents, there is no evidence that they are liable for costs for legal assistance and representation of and incidental to the appeal.  However, those respondents were represented by counsel on the appeal and may well have incurred costs.  They do not ask for indemnity costs, but do submit that both the appellant and the second respondent should be ordered to pay the costs of the first respondent.

[9] The course of proceedings of this appeal was the same as in Appeal No 8354 and, assuming an unfettered discretion, for the reasons already given no justification is shown for ordering the second respondent to pay the first respondents’ costs.  The order will be:

●  the appellant pay the costs of the first respondents of and incidental to the appeal, including the costs of the application for leave, such costs to be assessed on the standard basis.

Appeal No 5868 of 2002 (the “piecemeal” appeal)

[10]  The unsuccessful appellants in this appeal were Daniel Fox and Denise Fox.  The Brisbane City Council was the first respondent, Master Butchers Ltd was the second respondent, and the State of Queensland was the third respondent, being a co-respondent by election.  The unsuccessful appellant submits that each party should bear it own costs in this appeal, and the argument appears to be primarily that this is because they were successful respondents in Appeal Nos 8354 and 8355, where the principal matter was dealt with.  They also argue that if ordered to pay costs, they should pay the costs of only one respondent; that being because in their submission the respondent City Council did not obtain independent legal advice on the matter the subject of the appeal but relied instead upon advice provided by Masters Butchers Ltd.

[11]  Those unsuccessful appellants elected to bring and pursue this appeal against the named first and second respondents, and assuming an unfettered discretion, there is no reason why what those appellants now contend is the “subsidiary” or “protective” nature of their appeal should deny either the first or second respondents such costs as those respondents can establish were incurred by reason of that appeal.  The majority judgment shows the appeal was always misconceived and unnecessary.

[12]  As to the argument that only one set of costs should be paid, the second respondent City Council appeared by different representation on the appeal and made its own arguments, irrespective of whatever advice from whatever source the Council originally relied upon.  Even if the Council did at first accept the advice of Master Butchers Ltd (which advice on this appeal was demonstrated to be correct), that does not explain why the Council, having been made a respondent, should not have its costs.

[13]  However, it needs to be observed that no time at all was spent in considering Appeal No 5868 on the hearing of the application for leave to appeal.  The question of leave in that appeal was simply reserved without hearing argument, pending the argument of the principal applications.  Finally, no submissions have been received from the third respondent, State of Queensland.

[14]  Assuming an unfettered discretion, we would order that the appellants pay the first and second respondents’ costs of the appeal, including those respondents’ costs of the application for leave to appeal, but limited in respect of that application to the costs of and incidental to the preparation of the appeal records for that application.  We would not make any order in respect of the third respondent.