Bucknell & Anor v Townsville City Council & Anor
[2021] QCA 45
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- Notable Unreported Decision
- Appeal Determined - Special Leave Refused (HCA)
- Bucknell & Anor v Townsville City Council & Anor[2021] QCA 45
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Bucknell & Anor v Townsville City Council & Anor[2021] QCA 45
Bucknell & Anor v Townsville City Council & Anor[2021] QCA 45
SUPREME COURT OF QUEENSLAND
CITATION: | Bucknell & Anor v Townsville City Council & Anor [2021] QCA 45 |
PARTIES: | PETER ADRIAN WENTWORTH BUCKNELL (first applicant) FRANCES O'CALLAGHAN (second applicant) v TOWNSVILLE CITY COUNCIL (first respondent) ACE AVIATION & ENGINEERING PTY LTD ACN 113 025 264 (second respondent) |
FILE NO/S: | Appeal No 1301 of 2020 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Leave Planning and Environment Court Act – Further Orders |
ORIGINATING COURT: | Planning and Environment Court at Townsville – [2019] QDC 280 (Coker DCJ) |
DELIVERED ON: | 16 March 2021 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Heard on the papers |
JUDGES: | Philippides and McMurdo JJA and Bradley J |
ORDERS: |
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CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – where the court granted the applicant leave to appeal a decision of the Planning and Environment Court, and dismissed the appeal – where the general rule is costs follow the event – whether the first respondent’s costs should be limited to those it would have incurred if it had appeared at the hearing and not participated in argument – where the first respondent advanced submissions that overlapped with those of the second respondent – where the first respondent did not identify any interest in the appeal not shared by the second respondent Local Government Act 1936 (Qld) Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11, cited |
COUNSEL: | D R Gore QC, with E J Morzone, for the applicants K Wylie for the first respondent G J Gibson QC, with J G Lyons, for the second respondent |
SOLICITORS: | Wilson Ryan Grose Lawyers for the applicants Keir Steele Waldon Lawyers for the first respondent Connolly Suthers Lawyers for the second respondent |
- [1]PHILIPPIDES JA: I agree with Bradley J.
- [2]McMURDO JA: Given the outcome of the proceedings in this Court the orders proposed by Bradley J should be made, for the reasons given by his Honour.
- [3]BRADLEY J: On 23 February 2021, the court granted the applicant leave to appeal from a decision of the Planning and Environment Court, and dismissed the appeal. The court gave the parties leave to file written submissions as to the orders which should be made about costs. Each of the parties has done so.
- [4]The application and appeal concerned the proper construction of a town planning approval granted in May 1991 under a 1988 town planning scheme for the former City of Thuringowa under the Local Government Act 1936 (Qld) in respect of land at Woodstock.
- [5]The second respondent is the owner of the land the subject of the approval. The applicants are the owners of adjoining land. The first respondent (the Council) is the successor to the former Thuringowa City Council, which granted the approval.
- [6]The second respondent seeks an order that the applicants pay its costs on the standard basis. The applicants do not oppose such an order. It should be made. The only matter remaining in issue is the Council’s costs.
The Council’s costs
- [7]The Council seeks an order that the applicants pay its costs of the application and the appeal on the standard basis.
- [8]The applicants oppose such an order. The applicants seek an order that the Council bear its own costs or that its costs be limited to those it would have incurred if the Council had merely appeared by counsel at the hearing and not participated in the argument. An order of this kind was made by the Court in Tamborine Mountain Progress Association Inc v Beaudesert Shire Council [1995] 2 Qd R 231.
- [9]The applicants say they did not commence the application “without reasonable prospects of success.” They also say the Council advanced “no ground of resistance to the appeal” that was not argued by the second respondent.
- [10]The applicants’ first submission must be accepted. The application for leave to appeal plainly had prospects. Leave was granted. Although the appeal was dismissed, it could not be characterised as one that was bound to fail.
- [11]The Council takes issue with the applicants’ second point. It submits it should recover its costs because it advanced a positive case in the appeal, having called witnesses and made submissions in the hearing below, and did not engage in any “disentitling conduct”.[1] It also contends that the application and appeal “comprised a challenge to the Council’s construction of a development permit”. Lastly, the Council says it had “little choice but to participate” as it was joined as a respondent.
- [12]The Council was a party to the application and appeal. However, no reasonable criticism could have been made had the Council decided to offer any assistance sought by the court, but otherwise proposed to abide the court’s decision. I would not adopt the Council’s characterisation of the appeal as a challenge to the Council’s view of the proper construction of the approval. The appeal was from the decision of the court below. The application and appeal concerned the proper construction of an approval given 30 years ago under a superseded planning scheme and repealed legislation that continues to apply by transitional provisions. Its effect is confined to the second respondent’s land and nearby properties. The Council did not identify anything to be decided in the application and appeal in which it had an interest not shared by the second respondent.
- [13]It would be fair to say the Council’s submissions in the appeal overlapped with those of the second respondent. To the extent the Council sought to advance a positive case, it was one that supported the relief sought by the second respondent.
- [14]It follows that I would order the applicants to pay the Council’s costs, but limit those costs to those the Council would have incurred if it had taken no steps in the application and appeal other than to appear by counsel at the hearing without participating in the argument.
Footnotes
[1]No party contended the Council engaged in any misconduct in the appeal, including any of the kind listed by McHugh J in Oshlack v Richmond River Council (1998) 193 CLR 72 at 97-98 [69].