Thurecht v Brisbane City Council (No 2)
[2015] QPEC 35
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- Unreported Judgment
- Thurecht v Brisbane City Council (No 2)[2015] QPEC 35
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Thurecht v Brisbane City Council (No 2)[2015] QPEC 35
Thurecht v Brisbane City Council (No 2)[2015] QPEC 35
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Thurecht & Anor v Brisbane City Council (No 2) [2015] QPEC 35 |
PARTIES: | KATHRYN THURECHT (First Appellant) AND STEPHEN THURECHT (Second Appellant) v BRISBANE CITY COUNCIL (Respondent) |
FILE NO/S: | 3175/14 |
DIVISION: | Planning and Environment |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Planning and Environment Court of Queensland |
DELIVERED ON: | 31 July 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | On the papers |
JUDGE: | Searles DCJ |
ORDER: | 1. The Appellants are to pay the costs incurred by Council of and incidental to responding to the Appellants’ attempts to re-agitate the ADR Application after it had been dismissed. 2. The Appellants are to pay the Council’s costs for the preparation of submissions on this costs judgment and of the supporting affidavit of Ms Katherine Johnston, filed 29 May 2015. |
CATCHWORDS: | PROCEDURE - COSTS – Where, prior to the appeal, Appellants made numerous attempts at agitating application to have the matter heard and determined by the ADR Registrar – Whether the application had been dismissed – Whether discretion should be exercised for costs order – Conduct of Appellants in persisting with application. Sustainable Planning Act 2009 (Qld) ss 457, 491B |
COUNSEL: | Mr S Keliher (Solicitor) for the Appellants Mr B Job of Counsel for the Respondent |
SOLICITORS: | Milne Legal for the Appellants Brisbane City Legal Practice for the Respondent |
Application for Costs
- [1]On 15 May 2015, I made orders dismissing the appeal and reserving costs on the basis that the parties provide any written submissions within 14 days of judgment.[1] Council provided its costs submissions on 29 May 2015, the Appellant on 9 June 2015, and the Council its reply on 10 June 2015.
- [2]Council does not seek its costs of successfully resisting the appeal. Rather, it seeks costs incurred in responding to the Appellants’ numerous attempts to re-agitate an application to have the appeal determined by the ADR Registrar in lieu of this Court. Council says that the Appellants’ conduct in this regard justifies this court exercising its discretion pursuant to s 457 of the Sustainable Planning Act 2009 (Qld) (SPA), because it was put to unnecessary, and considerable, effort and expense in responding to the Appellants’ persistence with the ADR Application; which persistence was contrary to the prior determination of this Court on 23 October 2014.
- [3]I do not propose to set out the entire chronology leading up to the hearing of this appeal. I note the following features:-
- (a)On 23 September 2014, the Appellants filed an interlocutory application in this court seeking an order under s 491B of SPA that the appeal be heard and determined by the Registrar.[2]
- (b)The appeal was adjourned twice, first on 26 September 2014 and again on 15 October 2014, pending the decision of this court as to the jurisdiction of the ADR Registrar.[3]
- (c)The parties corresponded via email on 22 October 2014, which culminated in Council advising the Appellants it did not consent to the appeal being heard and determined by the ADR Registrar at this stage.[4]
- (d)On 23 October 2014, His Honour Judge Everson dismissed the Appellant’s application and adjourned the appeal to 30 October 2014.[5]
- (e)On 29 October 2014, at the Appellants’ request, the appeal was adjourned to 6 November 2014.[6]
- (f)On 3 November 2014, the Appellants wrote to Council and attached draft orders seeking to have the appeal heard and determined by the ADR Registrar.[7]
- (g)On 5 November 2014, Council replied to the Appellants’ letter of 3 November 2014, advising that it opposed the draft order given the dismissal by Judge Everson of the application on 23 October 2014. Council also advised of its instructions to seek an order for costs for opposing the Appellants’ re-agitation of the application.[8]
- (h)At the review before this court on 6 November 2014, His Honour Judge Rackemann declined to order that the appeal be heard and determined by the ADR Registrar on 10 December 2014.[9] Ms Johnston, for the Council, also deposes to His Honour having reserved Council’s costs of the mention that day on the basis that he had no knowledge of what Judge Everson had ordered on 23 October 2014.
- (i)
- [4]Drawing from several of the considerations under s 457(2) of SPA, Council says the court would exercise its discretion under s 457(1). Not only were the Appellants unsuccessful in their numerous attempts to have the matter heard and determined by the ADR Registrar; they should have appreciated the application was without reasonable prospects of success after His Honour Judge Everson had dismissed it. In all, their repeated attempts constitute unreasonable conduct in the proceedings.
- [5]The Appellants say the provisions of s 457 are not enlivened because they were entitled to re-agitate the application before this Court. His Honour Judge Everson did not specifically state the ADR Application was dismissed. Accordingly, it not unreasonable, given their preference for an expedited hearing, to again seek to have the matter heard and determined by the ADR Registrar. The fact that His Honour did not formally make the order is supported, they say, by the fact that Council subsequently sought to have the matter re-listed before His Honour. Finally, given the power under s 491B to refer matters to the ADR Registrar is a new one, they say it is inappropriate for them to be punished with an award of costs where the boundaries of this new provision are yet to be tested.
- [6]It is appropriate to exercise the discretion under s 457 of SPA in these circumstances. The Appellants have, in my view, erred in their characterisation of the effect of what Judge Everson did on 23 October 2014. His Honour did more than simply express an opinion – which was a concrete one, in any event – as to the ADR Application; His Honour formally dismissed the application.[12] That could not be clearer from the transcript. From that point, given the Appellants’ preference for an expedited hearing, the Appellants should have proceeded to have the appeal heard by this court as soon as reasonably practicable. Instead, they raised the matter, unsuccessfully, before His Honour Judge Rackemann. Throughout this to-ing and fro-ing, Council afforded the Appellants several opportunities to proceed to the hearing on the basis of what His Honour Judge Everson had ordered. The Appellants did not take up such opportunities.
- [7]This is not, as the Appellants’ solicitor contends, a matter of the Appellants being punished for the uncertain scope of the power under s 491B. There is no such basis in s 457 to approach the matter that way. What matters is the fact that the re-agitation of the ADR Application should have been appreciated as being without reasonable prospects of success,[13] and that the Appellants’ persistence with the application constitutes unreasonable conduct in the proceedings.[14]
Orders
- [8]I order that the Appellants pay Council’s costs as follows:
- Costs incurred by Council of and incidental to responding to the Appellants’ attempts to re-agitate the ADR Application after it had been dismissed.
- Costs of the preparation of submissions on costs and the supporting affidavit of Ms Katherine Johnston, filed 29 May 2015.
Footnotes
[1]Thurecht & Anor v Brisbane City Council [2015] QPEC 19.
[2]Affidavit of Katherine Rebecca Johnston filed 29 May 2015, KRJ-1.
[3]Affidavit of Katherine Rebecca Johnston filed 29 May 2015, para [5].
[4]Affidavit of Katherine Rebecca Johnston filed 29 May 2015, paras [7]-[8].
[5]Affidavit of Katherine Rebecca Johnston filed 29 May 2015, KRJ-6.
[6]Affidavit of Katherine Rebecca Johnston filed 29 May 2015, KRJ-7.
[7]Affidavit of Katherine Rebecca Johnston filed 29 May 2015, KRJ-8.
[8]Affidavit of Katherine Rebecca Johnston filed 29 May 2015, KRJ-9, page 24.
[9]Affidavit of Katherine Rebecca Johnston filed 29 May 2015, KRJ-10.
[10]Affidavit of Katherine Rebecca Johnston filed 29 May 2015, KRJ-12.
[11]Affidavit of Katherine Rebecca Johnston filed 29 May 2015, KRJ-13.
[12]Affidavit of Katherine Rebecca Johnston filed 29 May 2015, KRJ-6, Page 16, Line 26.
[13]SPA s 457(2)(d).
[14]SPA s 457(2)(i).