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Warner v Isaac Regional Council[2015] QDC 186

Warner v Isaac Regional Council[2015] QDC 186

DISTRICT COURT OF QUEENSLAND

CITATION:

Warner v Isaac Regional Council [2015] QDC 186

PARTIES:

JANICE WARNER

(appellant)

v

ISAAC REGIONAL COUNCIL

(respondent)

FILE NO/S:

35/15

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Mackay

DELIVERED ON:

30 July 2015

DELIVERED AT:

Mackay

HEARING DATE:

27 July 2015

JUDGE:

Smith DCJA

ORDER:

1. The appeal is allowed.

2. The order made by the Magistrates Court at Mackay on 19 March 2015 is set aside and in lieu thereof it is ordered that the plaintiff’s application is dismissed and the costs of and incidental to the application are reserved to the trial magistrate.

3. The respondent is to provide further and better particulars of its claim in answer to paragraphs 1(a) and (g) as amended in this judgment and 2 of the appellant’s request dated 10 February 2015. 

4. The respondent is to pay the appellant’s costs of and incidental to the appeal to be assessed on the standard basis.

CATCHWORDS:

PRACTICE AND PROCEDURE – APPLICATION FOR SUMMARY JUDGMENT – whether triable issues raised by the appellant – whether further and better particulars of the statement of claim should be ordered

Acts Interpretation Act 1954 (Q) schedule 1

District Court Act 1967 (Q) s 113

Magistrates Court Act 1921 (Q) s 47

Public Health Act 2005 (Q) ss 5, 27, 30, 31, 366, 422

Uniform Civil Procedure Rules 1999 (Q) r 3, 150, 157, 292, 765, 785  

Agar v Hyde (2000) 201 CLR 552

Allesch v Maunz (2000) 203 CLR 172

Annetts v McCann (1990) 170 CLR 596.

Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256

Body Corporate for Sunseeker Apartments v Jasen [2012] QDC 51

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87

Gardiner v Hornsby Shire Council [2000] NSWLEC 37

Gubbins v Wyndham City Council (2004) 9 VR 620

Isbester v Knox City Council (2015) 320 ALR 432; 89 ALJR 689

JJ Richards & Sons Pty Ltd v Precast Concrete Pty Ltd [2010] QDC 272

Owners of Strata Plan 36131 v Dimitriou [2009] NSWCA 27

Parsons v Raby [2007] QCA 98

Qld Pork Pty Ltd v Lott [2003] QCA 271

Quirindi Shire Council v Gigli (1985) 3 NSWLR 178

Spencer v The Commonwealth (2010) 241 CLR 118

Teelow v Commissioner of Police [2009] 2 Qd R 489

Woollahra Municipal Council v Baranov [2006] NSWLEC 97

COUNSEL:

Mr S McLennan for the appellant

Solicitors for the respondent

SOLICITORS:

Beckey, Knight and Elliott for the appellant

SR Wallace and Wallace for the respondent

Introduction

  1. [1]
    This is an appeal against the decision of the Magistrates Court at Mackay given on 19 March 2015 to enter summary judgment against the appellant, to dismiss the appellant’s application for further and better particulars and for the appellant to pay the respondent’s costs.

Nature of the appeal

  1. [2]
    This appeal is pursuant to s 47 of the Magistrates Court Act 1921 (Q). This section provides: 

“47 Jurisdiction of the District Court

On the hearing of an appeal or special case, the District Court may do any of the following—

  1. (a)
    draw inferences of fact from facts found by the Magistrates Court, or from admitted facts or facts not disputed;
  1. (b)
    order a new trial on such terms as it thinks just;
  1. (c)
    order judgment to be entered for any party;
  1. (d)
    make any other order, on such terms as it thinks proper, to ensure the determination on the merits of the real questions in controversy between the parties;
  1. (e)
    as regards any special case, remit the matter to the Magistrates Court with the opinion of the District Court thereon;
  1. (f)
    make such order with respect to the costs of the appeal or special case as it thinks proper.”
  1. [3]
    In JJ Richards & Sons Pty Ltd v Precast Concrete Pty Ltd[1]McGill SC DCJ noted that UCPR r 785 also applies such that r 765(1) is picked up.[2]Therefore the appeal is by way of rehearing. In such an appeal it is necessary for the appellant to show the decision under appeal is wrong.[3]In a rehearing the Court is to make up its own mind on the evidence that was before the Magistrates Court giving “due deference and weight” to the learned magistrate’s views.[4]

Background

  1. [4]
    The appellant owned land at Moranbah. On 7 April 2014, the respondent obtained an enforcement order under the Public Health Act 2005 (Q) (“PHA”) directing the appellant to remove structures or things which were alleged to be hazardous to human health.  The statement of claim alleges the appellant failed to take these steps and as a result officers of the respondent entered onto the land and removed these items.  In the statement of claim the respondent alleged the cost of this process was $48,990.63.  The respondent claimed this as a debt due pursuant to s 31(3) of the PHA.
  1. [5]
    In her defence the appellant alleged:
  1. (a)
    the steps taken by the respondent were excessive (paragraph 2);
  1. (b)
    the appellant complied with the order and the steps taken by the respondent were unnecessary (paragraph 4);
  1. (c)
    the plaintiff has failed to provide particulars of the debt (paragraph 6d);
  1. (d)
    in answer to the respondent’s claim, that overcharging has occurred (paragraphs 20 and 21);
  1. (e)
    unnecessary cost was incurred by the pulling down the appellant’s pool fence (paragraph 22);
  1. (f)
    an Emerald cleaning company was used, rather than a Moranbah cleaning company (paragraph 25);
  1. (g)
    the respondent disposed of property belonging to the appellant (paragraph 26);
  1. (h)
    the appellant has incurred losses in the sum of $67,193.45 (paragraph 29).

Evidence

Respondent’s material

  1. [6]
    Trevina Victorsen, in an affidavit sworn 27 January 2015, was a health officer employed by the respondent. She alleges the enforcement order was agreed to by the appellant in the Moranbah Magistrates Court. On 19 March 2014 Ms Victorsen attended the appellant’s property and saw items piled up at the property.  She says that between 20 March 2014 and 17 April 2014 she, two Council staff members and seven contractors entered the property in compliance with the order.  She alleges that local cleaning agencies refused to assist and hence Emerald cleaning contractors were engaged.  Various invoices are attached.  She alleges that 30 tonnes of waste was removed.  The total cost was $48,990.63: some $31,000 related to cleaners; $7,193 related to the erection of the pool fence[5]; $330 to pest control; $154 for lawn mowing, and; $9,503.29 for legal costs.[6]

Appellant’s material

  1. [7]
    In her affidavit sworn 9 March 2015 and filed by leave Ms Warner says:
  1. (a)
    the amounts paid for the cleaners are excessive as the cleaners came from Emerald, not Moranbah; the number of cleaners listed in the invoices is wrong – she only witnessed three cleaners at the property in the last week; during the period of the rain cleaners worked about 5 hours per day and not the 10 days as claimed (paragraph 2 (iv));
  1. (b)
    it was her intention to fill in the pool and therefore a replacement pool fence was not required (paragraph 3);
  1. (c)
    she had instructed her lawyers to file a counter-claim whereby a number of items were disposed of without approval (paragraph 6). She listed 15 items in paragraph 8;
  1. (d)
    the value of the items exceeds the amount claimed. In particular losses of about $60,000 were caused by the disposal of her business records (paragraph 18).        

Respondent’s submissions below

  1. [8]
    The respondent submitted that:
  1. (a)
    the order of the Magistrates Court at Moranbah required the appellant to pay the cost of taking the steps under the enforcement order;
  1. (b)
    the respondent was hampered by bad weather between 18 March 2014 and 27 March 2014;[7]
  1. (c)
    there were further hearings on 28 March, 4 April and 7 April 2014 in which additions were made to the enforcement order;
  1. (d)
    the enforcement took 17 days – 176 hours;
  1. (e)
    there is no need for reasonableness to be proved;
  1. (f)
    the legal costs were caused by the appellant, causing the respondent to take further court action;
  1. (g)
    the cost of the pool fence erection is recoverable;
  1. (h)
    the cost of the cleaners was not excessive;
  1. (i)
    the case of Woollahra Municipal Council v Baranov[8]is not similar.

Appellant’s submissions below

  1. [9]
    The appellant submitted that:
  1. (a)
    the appellant intended to amend her defence once she received further particulars from the respondent;
  1. (b)
    the appellant intended to counterclaim under s 366 of the PHA,[9]which amount would be set off under s 20 of the Civil Proceedings Act 2011 (Q);
  1. (c)
    the amount for legal costs and the pool fence erection are not claimable;
  1. (d)
    triable issues are raised in the present defence i.e. the steps were excessive; the number of cleaners and hours worked is in dispute; and there was no need to engage Emerald cleaners;
  1. (e)
    Woollahra Municipal Council v Baranov applies here;
  1. (f)
    further and better particulars of the statement of claim should be ordered.

Decision

  1. [10]
    The learned magistrate referred to the test expounded in Deputy Commissioner of Taxation v Salcedo.[10]His Honour considered the affidavit of Ms Victorsen as addressing all of the issues raised in the defence.  His Honour was satisfied on the evidence there were no prospects of a successful defence and there was no need for a trial.  The application for summary judgment was granted, and therefore the application for further and better particulars was dismissed.

Grounds 1 and 2

Appellant’s submissions

  1. [11]
    The appellant alleges that the learned magistrate erred in finding that the appellant had no real prospect of successfully defending all or part of the respondent’s claim. It is also alleged that the learned magistrate erred in finding there was no need for a trial of the claim. The appellant submits that her affidavit showed that the steps taken by the respondent to give effect to the enforcement order were excessive. The number of cleaners and the number of hours worked was in dispute. The need to replace the pool fence was in dispute.
  1. [12]
    It is further submitted the respondent’s legal representative made statements from the bar table which supported the appellant’s claims, namely:
  1. (a)
    items removed from the property were not individually categorised; and
  1. (b)
    cleaning staff were required to work at other locations.
  1. [13]
    The appellant relies on Woollahra Municipal Council v Baranov.[11]
  1. [14]
    In oral submissions the appellant submitted that procedural fairness enables the appellant to raise matters of reasonableness of costs in the civil proceedings.
  1. [15]
    It is also submitted that $9,503.29 of the amount sought by the respondent were not properly claimable as they were legal costs.
  1. [16]
    In oral submissions the appellant submitted:
  1. (a)
    The legal costs were not claimable as they were not “costs” of taking the relevant steps.
  1. (b)
    The erection of the pool fence was not within power.

Respondent’s submissions

  1. [17]
    The respondent submits that the learned magistrate dealt with Woollahra correctly. It was of little assistance[12]because there was no mechanism for the defendant to have recourse to “reasonableness or excessiveness” as s 366 (422) of the PHA enabled a party to recover loss or expense.
  1. [18]
    Section 31(1) of the PHA enables the issuing authority to recover the amount payable by a person ordered to pay the costs under an enforcement order as a debt due. It is submitted there is no requirement of reasonableness like that provided for in s 406(1) of PHA. It is therefore submitted the learned magistrate was correct in determining there was no recourse to reasonableness or excessiveness. Woollahra is said to be distinguishable.
  1. [19]
    In any event, the learned magistrate was correct in finding there were no prospects of defending the claim.
  1. [20]
    In oral submissions the respondent submitted:
  1. (a)
    That natural justice was afforded at 2 levels- firstly at the time the enforcement order was made and secondly when the council was required to prove expense. There was need for natural justice to be accorded at every step of the process.
  1. (b)
    It was conceded that if there was a claim for work not actually done this would be a triable issue, but this did not apply here as the magistrate correctly found the claims by the appellant were too vague.
  1. (c)
    The order permitted the erection of the pool fence.
  1. (d)
    There was no appeal by the appellant of the enforcement order.

The law

  1. [21]
    Rule 292 provides:

“(1) A plaintiff may, at any time after a defendant files a notice of intention to defend, apply to the court under this part for judgment against the defendant.

  1. (2)
    If the court is satisfied that –
  1. (a)
    the defendant has no real prospect of successfully defending all or part of the plaintiff’s claim; and
  1. (b)
    there is no need for a trial of the claim or any part of the claim;

the court may give judgment for the plaintiff against the defendant for all or part of the plaintiff’s claim and may make any other order the court considers appropriate.”

  1. [22]
    In Deputy Commissioner of Taxation v Salcedo[13]the appellant appealed against an order of a judge in the trial division granting summary judgment in favour of the Deputy Commissioner. Williams JA at [17] noted that:

“Summary judgment will not be obtained as a matter of course and the judge determining such an application is essentially called upon to determine whether the respondents of the application has established some real prospect of succeeding at a trial, if that is established then a matter must go to trial.”

  1. [23]
    French CJ and Gummow J in Spencer v The Commonwealth[14]said at [24]:

“The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in Fancourt v Mercantile Credits Ltd[15] said:

‘The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.’

More recently, in Batistatos v Roads and Traffic Authority (NSW)[16] Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde[17] which included the following:

‘Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.’”

  1. [24]
    This leads to a discussion of the provisions of the PHA. Section 24 of the PHA enables an issuing authority to apply to a magistrate for an enforcement order where it considers a person has contravened a public health order.
  1. [25]
    Section 27 of the PHA provides that the magistrate may make an enforcement order in the same terms as a public health order or on other terms as considered appropriate. The section also requires the magistrate to make an order as to who must pay the costs of taking relevant steps referred to in the order.
  1. [26]
    Section 31 of the PHA provides:

“Cost under enforcement order recoverable as a debt

  1. (1)
    The issuing authority may recover the amount payable by a person ordered to pay the costs under an enforcement order as a debt due to the issuing authority.
  1. (2)
    For sub-section (1), the amount becomes payable 30 days after the issuing authority gives the person details of the amount of the costs.”
  1. [27]
    The issue then is whether a person is permitted to challenge the amount of the costs.

Disposition of grounds 1 and 2

  1. [28]
    In my view it cannot be correct that the PHA allows the issuing authority to charge any amount it wishes to if the amounts are proved to be excessive or unreasonable. It is my view issues of unreasonableness/excessiveness may be raised by way of defence. In this regard I note that s 5(1) of the PHA provides:

“Act does not affect other rights or remedies

  1. (1)
    This Act does not affect or limit a civil right or remedy that exists apart from this Act, whether at common law or otherwise.”  
  1. [29]
    It is a fundamental civil right that a person be given the chance to be heard and that procedural fairness be accorded to a citizen. The High Court in Annetts v McCann[18]held that a person has a right to be heard where a statute permits a public authority to prejudice an individual’s right.[19]In Isbester v Knox City Council[20]Gaegler J at [54] considered that the power of the Council to order the destruction of the dog was impliedly conditioned by the requirement to accord procedural fairness, referring to Gubbins v Wyndham City Council.[21]What happens if the local authority charged an exorbitant amount – say $1 million to remove one car wreck?  Surely the individual would have had a right to be heard as to the quantum of the amount involved.  Many other theoretical examples could be considered. One example posed by the appellant’s counsel is where the council might choose to engage cleaners from overseas rather than from in Australia.
  1. [30]
    I do not consider there is a clear intention manifested by the legislature in section 31 to abrogate this right.
  1. [31]
    The respondent submitted that the requirement to accord procedural fairness was not at all steps. It was accorded to the appellant at the time of the hearing of the enforcement order and also at the time the respondent quantified and proved the costs. It relied on Qld Pork Pty Ltd v Lott[22]as authority for the proposition that once a prima facie case was proved by the respondent then an evidentiary onus shifted to the appellant and that was not discharged by her.
  1. [32]
    With respect to this argument the appellant put forward material in the defence and in her affidavit that some of the work charged for was not carried out. In this regard I respectfully disagree with the magistrate’s conclusion that simply disputing the number of hours or that work was not in accordance with the order was “not enough”.[23]  
  1. [33]
    As to the issue of procedural fairness the respondent relied on Frederick v State of South Australia.[24] This case involved a Magistrate who had resigned due to criminal charges tried to have his resignation set aside after his convictions were quashed and  a nolle prosequi was entered. It was held at [206] that the principle in Annetts did not concern the manner of the implementation of a course of action following the making of the relevant decision. His Honour held at [208] that procedural fairness was not required where the decision did not affect the rights, property or legitimate expectations of the plaintiff. The decision in question was a decision to seek his resignation.
  1. [34]
    I consider Frederick to be a different case to the instant one. It is not to the point that the appellant could not have a right to be heard in front of every bin into which items were being placed. I find she has a right to be heard concerning whether work claimed was carried out and whether unreasonable costs were charged.   
  1. [35]
    Woollahra Municipal Council v Baranov[25] also tends to support the appellant’s argument. Jagot J was concerned with an order made by the court that “The respondent must reimburse the applicant for all of its costs incurred in carrying out these orders.” At [28] her Honour noted that issues of whether costs were reasonably incurred and whether a respondent might be able to set off a counter claim were still issues to be determined.
  1. [36]
    It is my respectful opinion that issues of unreasonableness/excessiveness and whether the work was carried out may be raised by way of defence. I consider then that the learned magistrate erred in his approach to this matter. It is clear from the affidavit of the appellant that whether work was carried out was in dispute as was whether the work was pursuant to the order.[26]
  1. [37]
    The evidence revealed that there were some triable issues concerning the quantum of the amounts sought. In those circumstances grounds 1 and 2 are made out.
  1. [38]
    I will deal with the other two issues raised concerning this ground. On the issue of erection of the pool fence it seems to me the order permitted this. There was a handwritten amendment to the enforcement order which read “as well as making all things hazardous to human safety safe.” Section 27 of the PHA enables an order to be made to also reduce public health risk. I consider the pool fence erection amount may be claimable by the respondent. There may be a triable issue on whether the work was necessary bearing in mind the appellant alleged she communicated an intention to fill in the pool. 
  1. [39]
    The next issue is the question of the claim for legal costs. It is my respectful view that these were not claimable in the action. I consider the costs are not part of the “cost of taking the steps” within the meaning of that term in s 27 of the PHA. The steps specified in the enforcement order were the removal and disposal of the relevant property. The conduct of the court proceeding was not a step.
  1. [40]
    Further the Magistrates Court had the power to order costs to be assessed. Rule 3 of the UCPR provides that the rules apply to civil proceedings in the Magistrates Court. The term “proceeding” is defined in schedule 1 of the Acts Interpretation Act 1954 (Q) as “means a legal or other action or proceeding.” It seems clear the enforcement order proceedings were civil proceedings. Chapter 17A of the UCPR provides as to how costs are to be ordered and assessed. The respondent could have applied to the magistrate for the enforcement order for an order for costs.
  1. [41]
    In Owners of Strata Plan 36131 v Dimitriou[27]in a divided decision, the New South Wales Court of Appeal decided that legal costs were recoverable as a debt by a body corporate.[28]I consider this case to be distinguishable. Section 80 of the Strata Schemes Management Act 1996 (NSW) relevantly provided “(1) An owners corporation may recover as a debt a contribution not paid at the end of one month after it becomes due and payable together with any interest payable and the expenses of the owners corporation incurred in recovering those amounts.”
  1. [42]
    As one can see it appears the section specifically authorised the recovering of costs as a debt due. I note that Basten JA in dissent held in Dimitriou that s 80 did not override the general provisions relating to costs even when one considered the wording of section 80.[29]     
  1. [43]
    In any event I think it right in point of principle that the court should retain a discretion to monitor the costs as provided for in the rules. I consider the statements made in Gardiner v Hornsby Shire Council[30]support this contention also.
  1. [44]
    Of course if this was the only point the judgment could be reduced by the amount of the costs sought.

Ground 3

Appellant’s submissions

  1. [45]
    Ground 3 alleges that the learned magistrate erred in granting summary judgment in circumstances where the appellant could have been improved to a position by proper amendment to the pleadings.
  1. [46]
    The appellant submits she intends to counterclaim for compensation pursuant to s 422 of the PHA for a number of possessions which were unnecessarily disposed of by the respondent. The appellant’s affidavit stated that the counterclaim would be pleaded as legal setoff pursuant to s 20 of the Civil Proceedings Act 2011 (Q).
  1. [47]
    The appellant in oral submissions submitted the fact a counter-claim was not filed was not to the point- the evidence raised the fact a counter-claim would be brought.

Respondent’s submissions

  1. [48]
    The respondent submits there was ample opportunity for the appellant to file a counterclaim before the hearing of the summary judgment application or to exhibit the proposed pleading term material. The learned magistrate correctly found that for s 422 of PHA to apply there was a need to quantify the loss of compensation sought and the defence in this regard failed.[31]In any event the appellant is not prevented from commencing fresh proceedings under s 422 of the PHA. With respect to the legal costs put it is submitted that the appellant did not plead that the amount could not be claimed but if the court was against the respondent on this issue that part of the judgment could be set aside.
  1. [49]
    In oral submissions the respondent submitted the claims by the appellant were not properly or adequately particularised. The magistrate was correct in finding this.

The law

  1. [50]
    In Chen v ANZ Banking Group & Anor[32]Atkinson J held:

“The jurisdiction to enter summary judgment in favour of the defendant because the Statement of Claim does not disclose a cause of action should of course be exercised sparingly. The jurisdiction to dismiss the plaintiff’s action should only be exercised where the plaintiff cannot improve its position by a proper amendment of the pleadings. It would appear that this is such a case.”

  1. [51]
    Section 422 of the PHA provides:

“(1) If a person incurs loss or expense because of the exercise or purported exercise of a power under part 2 or chapter 2, part 4 the person may claim compensation

…

  1. (b)
    for the exercise or purported exercise of a power by or for a local government – from the local government

…

  1. (3)
    Compensation may be claimed and ordered to be paid in a proceeding –
  1. (a)
    brought in a court jurisdiction for the recovery of the amount of the compensation claimed.

…”

Disposition of ground 3

  1. [52]
    In my respectful view the magistrate was sufficiently apprised of the appellant’s position that a counterclaim would be brought by the appellant against the respondent. The counterclaim directly related to the exercise of the power of executing the enforcement order. In those circumstances in my opinion a realistic prospect of counterclaim which may well have been ordered to be set off against the respondent’s claim was raised. Bearing in mind the test in Salcedo and the other cases referred to previously, it is my opinion the magistrate erred in failing to appropriately consider this issue.
  1. [53]
    Although the quantification of the claim for compensation was poor, in my view there was enough evidence to make out a claim which would potentially be set off against the amount claimed by the respondent. I respectfully disagree with the magistrate’s conclusion that the defence “failed in this regard.”[33]There was a trial to be had. Ground 3 is made out.

Further and better particulars

  1. [54]
    I now turn to whether an order should be made for the provision of further and better particulars by the respondent.
  1. [55]
    The respondent in further written submissions says:
  1. (a)
    it does not contest request 2;
  1. (b)
    the requests in paragraphs 1(a) and (g) seek particulars of something not pleaded i.e. the pleading alleges steps not removal of items. Therefore the requests are not valid.
  1. [56]
    I agree that at first blush the wording of requests 1(a) and (g) does not follow the wording of the pleaded paragraph. But if one looks at the definition of “the steps” in paragraph 3 of the pleading this directly relates to removal.
  1. [57]
    The respondent was required to plead particulars of the debt.[34]I consider the request for particulars to be well founded.[35]Paragraphs 1(b) to (f) are not proceeded with by the appellant in their present form.       
  1. [58]
    I consider there is no injustice accorded if the requests 1(a) and (g) are amended as follows:
  1. (a)
    With respect to paragraph 8 specify the steps taken by the plaintiff and without limiting the generality of this request specify the items that were removed from the defendant’s property pursuant to or purportedly pursuant to the enforcement order.
  1. (b)
    With respect to paragraph 9 provide full particulars of the cost of each of the steps taken and particulars of how the total cost is calculated.   

Conclusion

  1. [59]
    In conclusion for the reasons given the appeal is allowed and the decision of the magistrate is set aside. In lieu thereof the decision will be the application for summary judgment by the respondent is dismissed.
  1. [60]
    I order the respondent provide further and better particulars of its claim by answering paragraphs 1(a) and (g) as amended above in this judgment and 2 of the appellant’s request dated 10 February 2015.

Costs

  1. [61]
    Costs of the applications are reserved to the trial magistrate. I consider this an appropriate order as although the respondent has lost its application and the appellant has succeeded in obtaining an order for the provision of particulars, the appellant to an extent put itself in the present position because of its failure to properly plead a counter-claim and it did not succeed in obtaining all of the particulars originally sought.
  1. [62]
    On the issue of costs of the appeal the respondent submitted that if the appeal was allowed it should have its costs or alternatively costs should be reserved to the trial magistrate as the procedural fairness issue was not raised below.
  1. [63]
    The respondent submitted that s 47 of the Magistrates Courts Act 1921 (Q) permits the District Court to reserve the costs of the appeal to the trial magistrate.  
  1. [64]
    The appellant submitted she should have her costs. It submits that r 766 permits the Court of Appeal to make an order that costs be costs in the cause because r 785 picks up r 766 in a District Court appeal.
  1. [65]
    However at the end of the day in my opinion the appellant has succeeded on all grounds and in those circumstances she should have her costs of the appeal.
  1. [66]
    I order the respondent to pay the appellant’s costs of and incidental to the appeal on the standard basis.

Footnotes

[1] [2010] QDC 272.

[2] Also see s 113 of the District Court Act 1967 (Q).

[3] See Allesch v Maunz (2000) 203 CLR 172 and Teelow v Commissioner of Police [2009] 2 Qd R 489 at [4] per Muir JA.

[4] Parsons v Raby [2007] QCA 98 at [24].

[5] The Appellant challenges this amount stating it is not within power under the enforcement order.

[6] There is an issue as to whether the legal costs fall under s 27(3)(1) or s 27(4)(h) of the PHA.

[7] This seems to be contradicted by invoice 788-007 from the cleaners.

[8] [2006] NSWLEC 97.

[9] This is the wrong section; it should be s 422.

[10] [2005] 2 Qd R 232.

[11] [2006] NSWLEC 97.

[12] Reasons page 3.35.

[13] [2005] 2 Qd. R. 232 at [17].

[14] (2010) 241 CLR 118 at [24].

[15] (1983) 154 CLR 87 at 99.

[16] (2006) 226 CLR 256 at 275 [46].

[17] (2000) 201 CLR 552 at 575-576 [57].

[18] (1990) 170 CLR 596 at 598.

[19] Also see Quirindi Shire Council v Gigli (1985) 3 NSWLR 178 at 180-181.

[20] (2015) 320 ALR 432; (2015) 89 ALJR 689; [2015] HCA 20 at [54] – [55].

[21] (2004) 9 VR 620.

[22] [2003] QCA 271 at [41] per Jones J.

[23] Reasons page 4.12.

[24] (2006) 152 IR 182 at [206]-[208].

[25] [2006] NSWLEC 97 at [28].

[26] See paragraphs 2, 4, 8 and 9 of the appellant’s affidavit.

[27] [2009] NSWCA 27.

[28] This was followed by McGill SC DCJ in Body Corporate for Sunseeker Apartments v Jasen [2012] QDC 51.

[29] Owners of Strata Plan 36131 v Dimitriou [2009] NSWCA 27 at [92].

[30] [2000] NSWLEC 37 at [18] per Pearlman J.

[31] Reasons page 4.15.

[32] [2001] QSC 43 at [1].

[33] Reasons page 4.14.

[34] Rule 150(3).

[35] Rule 157.

Close

Editorial Notes

  • Published Case Name:

    Warner v Isaac Regional Council

  • Shortened Case Name:

    Warner v Isaac Regional Council

  • MNC:

    [2015] QDC 186

  • Court:

    QDC

  • Judge(s):

    Smith DCJA

  • Date:

    30 Jul 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Agar v Hyde (2000) 201 CLR 552
2 citations
Jump To
Cite 1 - (2000) 201 CLR 552
Cite 2 - (2000) 201 CLR 552
Allesch v Maunz (2000) 203 CLR 172
2 citations
Jump To
Cite 1 - (2000) 203 CLR 172
Cite 2 - (2000) 203 CLR 172
Annetts v McCann (1990) 170 CLR 596
2 citations
Jump To
Cite 1 - (1990) 170 CLR 596
Cite 2 - (1990) 170 CLR 596
Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256
2 citations
Jump To
Cite 1 - (2006) 226 CLR 256
Cite 2 - (2006) 226 CLR 256
Body Corporate for Sunseeker Apartments CTS 618 v Jasen [2012] QDC 51
2 citations
Jump To
Cite 1 - [2012] QDC 51
Cite 2 - [2012] QDC 51
Chen v Australian & New Zealand Banking Group Ltd [2001] QSC 43
1 citation
Jump To
Cite 1 - [2001] QSC 43
Deputy Commissioner of Taxation v Salcedo[2005] 2 Qd R 232; [2005] QCA 227
2 citations
Jump To
Cite 1 - [2005] 2 Qd R 232
Cite 2 - [2005] 2 Qd R 232
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
2 citations
Jump To
Cite 1 - (1983) 154 CLR 87
Cite 2 - (1983) 154 CLR 87
Gardiner v Hornsby Shire Council [2000] NSWLEC 37
2 citations
Jump To
Cite 1 - [2000] NSWLEC 37
Cite 2 - [2000] NSWLEC 37
Gubbins v Wyndham City Council (2004) 9 VR 620
2 citations
Jump To
Cite 1 - (2004) 9 VR 620
Cite 2 - (2004) 9 VR 620
Isbester v Knox City Council [2015] HCA 20
1 citation
Jump To
Cite 1 - [2015] HCA 20
Isbester v Knox City Council (2015) 320 ALR 432
2 citations
Jump To
Cite 1 - (2015) 320 ALR 432
Cite 2 - (2015) 320 ALR 432
JJ Richard & Sons Pty Ltd v Precast Concrete Pty Ltd [2010] QDC 272
2 citations
Jump To
Cite 1 - [2010] QDC 272
Cite 2 - [2010] QDC 272
Owners of Strata Plan 36131 v Dimitriou [2009] NSWCA 27
3 citations
Jump To
Cite 1 - [2009] NSWCA 27
Cite 2 - [2009] NSWCA 27
Cite 3 - [2009] NSWCA 27
Parsons v Raby [2007] QCA 98
2 citations
Jump To
Cite 1 - [2007] QCA 98
Cite 2 - [2007] QCA 98
Queensland Pork Pty Ltd v Lott [2003] QCA 271
2 citations
Jump To
Cite 1 - [2003] QCA 271
Cite 2 - [2003] QCA 271
Quirindi Shire Council v Gigli (1985) 3 NSWLR 178
2 citations
Jump To
Cite 1 - (1985) 3 NSWLR 178
Cite 2 - (1985) 3 NSWLR 178
Quirindi Shire Council v Gigli (2015) 89 ALJR 689
2 citations
Jump To
Cite 1 - (2015) 89 ALJR 689
Cite 2 - (2015) 89 ALJR 689
Quirindi Shire Council v Gigli (2006) 152 IR 182
1 citation
Jump To
Cite 1 - (2006) 152 IR 182
Spencer v The Commonwealth (2010) 241 CLR 118
2 citations
Jump To
Cite 1 - (2010) 241 CLR 118
Cite 2 - (2010) 241 CLR 118
Teelow v Commissioner of Police[2009] 2 Qd R 489; [2009] QCA 84
2 citations
Jump To
Cite 1 - [2009] 2 Qd R 489
Cite 2 - [2009] 2 Qd R 489
Woollahra Municipal Council v Baranov [2006] NSWLEC 97
4 citations
Jump To
Cite 1 - [2006] NSWLEC 97
Cite 2 - [2006] NSWLEC 97
Cite 3 - [2006] NSWLEC 97
Cite 4 - [2006] NSWLEC 97

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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