Walls Quarries Pty Ltd v Warwick Shire Council
[2004] QDC 219
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- Unreported Judgment
- Appeal Determined (QCA)
- Walls Quarries Pty Ltd v Warwick Shire Council[2004] QDC 219
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Walls Quarries Pty Ltd v Warwick Shire Council[2004] QDC 219
Walls Quarries Pty Ltd v Warwick Shire Council[2004] QDC 219
DISTRICT COURT OF QUEENSLAND |
REGISTRY: BRISBANE
NUMBER: D 1750/2002
WALLS QUARRIES PTY LTD | APPELLANT: |
and
WARWICK SHIRE COUNCIL | RESPONDENT: |
and
WARREN R SKINNER and SANDRA E SKINNER and CRAIG R SKINNER | CO-RESPONDENTS: |
and
STATE OF QUEENSLAND | CO-RESPONDENT BY ELECTION: |
REASONS FOR DECISION
HIS HONOUR JUDGE G.T. BRITTON S.C.
(DELIVERED THE 2nd DAY OF MARCH 2004)
- 1.In this matter, the Registrar (on my behalf) delivered my reasons for judgment on the 28th day of November 2003.
- 2.In written submissions, it was requested that an opportunity be given to the respondent to consider my reasons prior to deciding whether or not to make an application for costs. I directed that if any application was to be made in respect of costs, written submissions be made and served within certain time limits.
- 3.I have received written submissions in relation to costs from all parties other than the co-respondent by election (the State of Queensland).
- 4.Both the respondent, the Warwick Shire Council, (“the Council”) and the co-respondents, Warren R. Skinner and Sandra E. Skinner and Craig R. Skinner, (“the applicants”) have applied for an order that the appellant (“Walls”) pay the costs of and incidental to the appeal.
- 5.Section 4.1.23 of the Integrated Planning Act 1997 (“the Act”) provides:
- (1)Each party to a proceeding in the court must bear the party's own costs for the proceedings.
- (2)However the court may order costs for the proceedings 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;
- (f)without limiting paragraph (d), a party has incurred costs because another party has introducod (or sought to introduce) new material;
- (g)if the proceeding is an appeal against a decision on a development application, and the applicant did not in responding to an information request, give all the information reasonably requested before the decision was made;
- (h)the court considers an assessment manager, a referral agency or a local government should have taken an active part in the proceeding and it did not do so;
- (i)an applicant, submitter, referral agency, assessment manager or local government does not properly discharge its responsibilities in the proceedings.”
- 6.The Council in making its application relies primarily upon Section 4.1.23(2) (a) namely, the power to award costs where:
“the Court considers the proceeding was instituted merely to delay or obstruct;”
- 7.The Council refers to the application for costs made on behalf of the applicants and requests that in the event that the Court is satisfied that a costs order should be made under one of the other sub-paragraphs relied upon by the applicants, the costs order should also be made in favour of the Council on the same basis.
- 8.When an application for costs is made, the first issue for the Court to determine is whether or not the Court has jurisdiction to order costs. In order for the Court to have jurisdiction to order costs, the matter must fall within one or more of paragraphs (a) to (i) of Section 4.1.23(2). Once the Court decides that jurisdiction exists to make an order for costs, the Court is then called upon to exercise its discretion as to whether or not to award costs.
- 9.In their submissions, the applicants apply in the alternative:
- (a)for an order that the appellant pay the corespondents' costs of and incidental to the appeal on the grounds that:
- (i)the proceeding was instituted merely to delay or obstruct (Section 4.1.23(2)(a) of IPA);
- (ii)the proceedings, or a significant part of the proceedings, were frivolous or vexatious (Section 4.1.23(2)(b) of IPA);
- (b)an order that the appellant pay part of the corespondents' costs of the appeal limited to the costs of, say, two days of the hearing on the basis that:
- (i)the co-respondents incurred costs because the appellant defaulted in the court's procedural requirements with respect to the exchange of experts reports (Section 4.1.23(2)(e) of IPA);
- (ii)the co-respondents incurred costs because the appellant introduced now material during the course of the hearing, namely, the reports of the witnesses Wright and Bernoth (Section 4.1.23(2)(f) of IPA).
- 10.Walls not only resists the applications for costs on behalf of the Council and the applicants and argues that each party should bear its own costs, but also submits that “in the event that the court considers it appropriate to accede to the applications for costs by the corespondents and respondent, the appellant makes application to the court to recover from the co-respondents costs incurred by the appellant, and indemnity for any costs payable to the co-respondents and the respondent, because of the failure of the co-respondents to exchange expert reports in a timely fashion when the appellant is ready.”
- 11.The respondent and the co-respondents argue that the appellant was a commercial competitor of the co-respondents and that the proceedings were instituted merely to delay or obstruct.
- 12.It is clear on all of the evidence that Walls will be a commercial competitor of the co-respondents in the event that the development proceeds. It is at least implicit, if not explicit, in the submissions on behalf of the Council and the applicants, that Walls in instituting the proceedings as a commercial competitor or potential commercial competitor of the applicants did so merely to delay or obstruct the development proposed by the applicants.
- 13.I was referred to a recent decision of the Planning and Environment Court in relation to Section 4.1.23(2)(a) of the Act, namely TW Hedley Pty Ltd v Cairns City Council & Anor. (2003) QPEC 039. In that case, His Honour Judge White concluded that a commercial competitor had instituted the proceeding by way of appeal against the Council's approval of a development merely to delay or obstruct, notwithstanding that the grounds of appeal were supportable even though they were not ultimately successful and notwithstanding that the appeal was conducted in such a way as not to attract any criticism. He, however, declined to award costs for that case. Significantly, however, His Honour said:
“In my view in light of sub-section 4.1.23(1), it is for the applicant for an order for costs in its favour to establish that the discretion should be exercised in Its favour. In the context of this case, in my view, it is for the respondent Council and the co-respondent to establish that there was no public interest to be served in the institution and hearing of the appeal. The establishment of a detached bottle shop on the subject site could hardly be described as a major development proposal giving rise to significant consequences to the community at large. Nevertheless, the appellant did raise, and call evidence in respect of, legitimate planning issues. In addition, there were changes made by the co-respondent to the detail of its proposal, which in my view served the public interest and which in my view would have been made without the appeal having been instituted. I consider this to be very much a border-line case, but in the end, I am not satisfied that the discretion should be exercised in the respondent and co-respondent's favour.”
- 14.I was referred to the Explanatory Notes to the Act in relation to Section 4.1.23(2)(a) which are as follows:
“If the court considers proceedings were merely instituted for delay or obstruction. This is a new ground for awarding that is not a feature of the current Act. It allows the court to consider the motivations behind the proceeding in determining whether costs should be awarded.
“For example, in the case of an application for a commercial development, costs might be ordered against a submitter who owned a competing commercial interest and who appealed, if the Court considered the purpose of the appeal was to obstruct or delay the proposed development.”
- 15.The Act does not give any guidance as to what matters the Court should take into account in deciding whether or not the proceeding was instituted merely to delay or obstruct.
- 16.Both the Council and the applicants submit that the proceeding was instituted to obstruct or delay the establishment of a commercial competitor.
- 17.It is submitted on behalf of the Council that the Walls' s case was that the proposed competitor should not be permitted to enter the market until the market expands significantly or resources from its own quarry were exhausted. (Exhibit 4 page 16 sub-paragraph (b). It is submitted on behalf of the Council, and the submission is adopted by the applicants, that to the extent that matters could possibly be characterised as having a public interest element, they were a secondary consideration to bolster an appeal instituted to delay or obstruct the onset of commercial competition.
- 18.Reference was made to paragraph 7 of my Reasons for Judgment where I set out what were the disputed issues on the appeal and the following submissions are made by the Council:
“Reviewing the disputed issues in the appeal, as summarised in paragraph 7 of the Judgment, it is noted that:
- (a)The visual amenity issue was a minor issue, not supportable and only faintly argued;
- (b)The issue as to the DMR conditions was not one of public interest concern, but rather related to a lack of the appellant's agreement;
- (c)The noise and dust issues were not public interest issues, but rather were concerned with the potential for argument between competitors in the future as to the blame for any dust or noise;
- (d)The substantive issue in the appeal, and the one which the appellant contended was determinative, related to economic issues which, whilst formulated in various ways (absence of need, prematurity, a risk of blight etc.) were all manifestations of the appellant's attempt to delay or obstruct commercial competition which (at least on the balance of probability) was the explanation for the institution of the proceedings.”
- 19.Looking more closely at those matters, it is the case as submitted by the applicants that with respect to the limited visual amenity issue, I found that there was no evidence of any significant impact and that the relevant trees in the road reserve may well have been removed had Walls carried out the roadworks which were a condition of the approval of its quarry development in 1993. So far as the issue relating to the DMR conditions, this was an issue entirely of Walls' s making because it had failed to carry out appropriate road works in accordance with its 1993 approval and was recalcitrant to cooperate in any respect with the applicants.
- 20.In relation to the noise and dust issues, Walls did not call any evidence in relation to this ground and the only evidence on the issue was called by the applicants.
- 21.In relation to the issue of economic town planning need, I accept the submission on behalf of the applicants that even on the evidence adduced by Walls (other than the evidence of Mr Wall);
- (a)The appellants average production was 105,000 tonnes per annum;
- (b)The new quarry would be unlikely to capture more than 50% of the market of the existing quarry (i.e. 52,500 tonnes per annum);
- (c)The appellant's own accountant gave evidence that as long as the appellant maintained production in excess of 41,250 tonnes, it was likely to remain viable.
- 22.So far as the issue of the risk of blight was concerned, I have found that apart from the fact that Walls was unlikely to fail the obligation to rehabilitate was a progressive one and that in any event, minimal adverse visual impact would result.
- 23.It would be apparent from a reading of my Reasons for Judgment that I considered that there was no merit in any of the arguments which were advanced on behalf of Walls. Walls, in resisting the application for costs, argues that it is significant that Walls was not the only person that lodged an appeal in respect of the proposed quarry and that another appeal (No. 1464/2002) lodged by Mr Ernst was later discontinued. It seems to me that the only infsrence which can be drawn from that fact is that that appellant realised the appeal was without merit and should be discontinued. It seems to me in the absence of evidence to the contrary that that is a reasonable inference.
- 24.Walls appears to argue that the appeal was successful with respect to the DMR condition and that this shows that the appeal was not instituted merely to delay or obstruct. I find this argument unconvincing. The condition imposed required the cooperation of Walls with the applicants. Had Walls wished to act reasonably, it could have indicated that the condition would require amendment as it would not cooperate with the applicants who were commercial competitors.
- 25.Clearly in seeking an order for costs, the Council and the applicants bear the onus of satisfying me that it is appropriate that they should be awarded costs. They, therefore, bear the onus of satisfying me firstly that the proceeding was instituted by Walls merely to delay or obstruct.
- 26.This is not a case (unlike TW Hodley Pty Ltd v Cairns City Council) where the grounds of the appeal were supportable, although not ultimately successful. I refer in particular to my Reasons for Judgment in relation to the evidence called on behalf of Walls from Mr Wright and Mr Bernoth, which I found to be “particularly unconvincing”. I accept also that the fact that Mr Kershaw had not been given sufficient opportunity to undertake a full analysis and had been given only short notice of his requirement to give evidence at trial as indicating the true motive for the institution of the proceedings by Walls.
- 27.In all of the circumstances, I do consider that the proceeding was instituted by Walls merely to delay or obstruct the applicants' proposed development which had been approved by the Council.
- 28.Having found that this is a matter in which there is jurisdiction to make an order for costs, I must then decide which way to exercise my discretion.
- 29.This is not a case like TW Hedley Pty Ltd v Cairns City Council in which changes were made by the applicants to the detail of the proposal which would not have been made without the appeal having been instituted.
- 30.As submitted on behalf of the Council and the applicants, the present case was unusual in that, apart from one argument about the relevance of need, there was no evidence that the proposed use was in conflict with the planning instruments or was otherwise unsatisfactory for town planning reasons. Walls did not call a town planner. The only town planning evidence in the case was that called by the Council and the applicants.
- 31.I accept the submission that the real issue on the hearing was related to Walls' s claim for protection from the consequences of competition. Matters of genuine public interest did not play any significant role.
- 32.I have already referred to the evidence of Mr Wright and Mr Bernoth which I found to be particularly unconvincing. I accept the submission that the Walls' s conduct of the case was consistent with the motivation for the institution of the proceeding being one of delay or obstruction.
- 33.I specifically reject the argument advanced on behalf of Walls that the order should be that the appeal be allowed. Section 4.1.54 of the Act, provides (relevantly):
“(1) In deciding an appeal, the Court may make the orders and directions it considers appropriate.
- (2)Without limiting sub-section (1), the Court may -
- (a)confirm the decision appealed against; or
- (b)change the decision appealed against; or
- (c)set aside the decision appealed against and make a decision replacing the decision set aside.”
- 34.I reject the submission on behalf of Walls that because the DMR condition is to be modified, the appropriate order is that the appeal should be allowed. The reason for modification of the DMR condition has nothing to do with the prosecution of the appeal by Walls. Rather the modification of the condition has been brought about by reason of the fact that Walls is not prepared to co-operate with the applicants as required by the original condition.
- 35.There is therefore no basis whatever for the argument on behalf of Walls that because it has succeeded in relation to the DMR condition, there is not basis for costs to be awarded against it. Walls has clearly not succeeded in respect of the appeal.
- 36.There is absolutely no basis for the submission on behalf of Walls that in the event that the Court considers it appropriate to accede to the application for costs by the applicants and the Council. Walls should recover from the applicants costs incurred by Walls and indemnity for any costs payable to the applicants and the Council because of the failure of the applicants to exchange expert reports in a timely fashion. As submitted on behalf of the applicants, this submission ignores the fact that the Court's jurisdiction to award costs is enlivened in only limited circumstances, namely those set out in Section 4.1.23(2) of the Act. I am not satisfied that there is any basis demonstrated by Walls for an award of costs in its favour against the applicants and/or the Council.
- 37.In all of the circumstances, I am satisfied that it is appropriate to order that the appellant pay the costs of the respondent and the corespondent of and incidental to the appeal to be assessed.
- 38.So far as formal orders are concerned, I invite the parties to settle the terms of an appropriate order taking into account my Reasons for Judgment and these Reasons, and I direct that in the event that agreement can be reached in relation to the terms of a formal order, a draft order be delivered to my Associate within seven days of the date of delivery of these reasons. In the event that agreement cannot be reached, the matter should be set down for further argument before me on the 5 March 2004 in Rockhampton or on some other date set by the Registrar in Rockhampton after consultation with me.