Mackay Resource Developments Pty Ltd v Mackay Regional Council (No. 2)
[2015] QPEC 39
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- Mackay Resource Developments Pty Ltd v Mackay Regional Council (No. 2)[2015] QPEC 39
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Mackay Resource Developments Pty Ltd v Mackay Regional Council (No. 2)[2015] QPEC 39
Mackay Resource Developments Pty Ltd v Mackay Regional Council (No. 2)[2015] QPEC 39
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Mackay Resource Developments Pty Ltd v Mackay Regional Council & Ors (No. 2) [2015] QPEC 39 | |
PARTIES: | MACKAY RESOURCE DEVELOPMENTS PTY LTD (ACN 134 090 903) (appellant) v MACKAY REGIONAL COUNCIL (respondent) CHIEF EXECUTIVE, DEPARTMENT OF TRANSPORT & MAIN ROADS (first co-respondent by election) CHIEF EXECUTIVE, DEPARTMENT OF ENVIRONMENT AND HERITAGE PROTECTION (second co-respondent by election) AND ASSUNTA HEAD, SCOTT HEAD, DAWN E KLIBBE, BRIAN J RASMUSSEN, GARY STURDY, CLIFF SOUTHERLAND, ALAN B THOMSETT, KEVIN W WEST, ELIZABETH A WEST & VANESSA HEAD (third co-respondents by election) | |
FILE NO: | P&E No. 975/11 | |
PROCEEDING: | Appeal | |
ORIGINATING COURT: | Brisbane | |
DELIVERED ON: | 21 August 2015 | |
DELIVERED AT: | Brisbane | |
HEARING DATE: | On the papers (submissions filed 30 July 2015 and 11 August 2015) | |
JUDGE: | Dorney QC DCJ | |
ORDER: |
| |
CATCHWORDS: | Costs – whether exception to each party paying its own costs established | |
LEGISLATION CITED: | Integrated Planning Act 1997, s 4.1.23(1), s 4.1.23(2), s 4.1.23(2)(b) Sustainable Planning Act 2009, s 819, s 820, s 821 | |
CASES CITED: | Australian Conservation Foundation Gold Coast Inc. v Gold Coast City Council [1997] QPELR 84 Mackay Resource Developments Pty Ltd v Mackay Regional Council & Ors [2013] QPEC 57 Mudie v Gatton Shire Council & Anor [2002] QPEC 30 Oceanic Sun Line Special Shipping Co. Inc. v Fay (1988) 165 CLR 197 Wheldon v Beaudesert Shire Council & Anor [1995] QPLR 177 | |
COUNSEL: | A N Skoien for the respondent J G Lyons for the first co-respondent by election | |
SELF REPRESENTATIVES: |
T R Simpkin (on behalf of the appellant) K W West (on behalf of the third co-respondent by election) | |
SOLICITORS: | S.B. Wright & Wright & Condie for the respondent Norton Rose Fulbright for the first co-respondent by election | |
Introduction
- [1]On 23 July 2015 I made orders in accordance with a draft that I amended, initialled and placed on the file, such orders including leave for any party to this proceeding to file, and serve, submissions on costs.
- [2]On 30 July 2015 the appellant filed its submissions. Because of problems faced by the respondent in obtaining relevant material from the original hearing (which was not the subject of any consideration by me), it filed its submissions on 11 August 2015. No other party has chosen to file any submissions on costs.
Concern
- [3]The concern that I had about the issue of costs was primarily – although the appeal itself and my subsequent consideration of relevant conditions were brought, and heard, pursuant to the Integrated Planning Act 1997 (“IPA”) [but which for other purposes was repealed on 18 December 2009 by the Sustainable Planning Act 2009 (“SPA”)] – as to whether the IPA applied exclusively to the issue of costs or whether costs were an exception: by reason of the effect of the transitional provisions of the SPA applying the IPA here (see ss 819 to 821 of the SPA) or the effect of the amending Act in 2012 to the SPA costs provisions; or by reason of interpretative principles governing costs as a procedural matter affecting vested rights adversely.
Issues agitated
- [4]Neither the appellant nor the respondent sought to contend that the SPA had any part to play in this issue of costs. Accordingly, to that extent at least, my concerns have been allayed.
- [5]Nevertheless, the appellant submitted that, within the regime of the IPA, I should order either:
- that the respondent pay the appellant’s costs, including experts’ costs of and incidental to the proof of matters in relation to the issues of “amenity” and “sediment and erosion control” from 14 June 2013 to 9 August 2013; or
- that there, otherwise, be no order as to costs.
- [6]From the respondent’s side, it argued that, in all the circumstances of the proceeding, and consonant with the provisions of the IPA, there ought to be no order as to the costs in respect of the proceeding, or any part of the proceeding.
Statutory provisions
- [7]Under the terms of the IPA, s 4.1.23(1) states the general rule that each party to a proceeding must bear that party’s own costs for the proceeding. That general rule is subject to a further provision, in s 4.1.23(2), where, in certain circumstances, the court has a discretion to make an order as to the costs of the proceeding, if it considers such an order “appropriate”. The particular provision relied upon by the appellant here is s 4.1.23(2)(b). It provides that the court has a discretion to make an order as to costs if it considers that the proceeding, or part of the proceeding, to have been “frivolous or vexatious”.
Relevant authority
- [8]It does not appear to be in dispute – and it is certainly supported by Mudie v Gatton Shire Council & Anor [2002] QPEC 30 (at folio 7) – that both “the proceeding” and “a part of the proceeding” can include a respondent’s defence or opposition to the proceeding brought by the appellant and, necessarily, “part” of a respondent’s defence or opposition to such a proceeding.
- [9]With respect to the meaning of “vexatious”, it has been stated that the term applies to a proceeding which is “productive of serious and unjustified trouble and harassment”: see, for instance, Oceanic Sun Line Special Shipping Co. Inc. v Fay (1988) 165 CLR 197 at 247 (per Deane J). Consequently – picking up the aspect of “frivolous” – it does not mean that, for example, merely because a successful party is frustrated at being put to the expense of responding to the proceeding (see, for example, Wheldon v Beaudesert Shire Council & Anor [1995] QPLR 177 at 177) or because the proceeding showed a “lack of success, or the prospect of it”, the proceeding ought to be characterised as “frivolous or vexatious”. See, also, Australian Conservation Foundation Gold Coast Inc. v Gold Coast City Council [1997] QPELR 84 at 84.
“Frivolous or vexatious”?
- [10]In its written submissions, the appellant identifies two aspects of the evidence presented originally before Robin QC DCJ as purportedly justifying the relevant characterisation.
- [11]The first of those is the giving of evidence in relation to the issue of amenity. That is stated to include air quality, noise and vibration. The second is the giving of evidence in relation to the issue of sediment and erosion control.
- [12]The foundation of the appellant’s contentions is that, despite the agreement between the relevant experts in the those identified fields as expressed by the conclusions in their reports, and despite the reference in correspondence written to the respondent’s solicitors on behalf of the appellant’s solicitors drawing attention to this “agreement”, the respondent failed to abandon the giving of evidence on those two issues.
- [13]It was then argued, since the evidence of those experts was not seriously contested by the respondent at the hearing before Robin QC DCJ and because of the way in which his Honour dealt with those aspects:
- that the fact that the respondent allegedly maintained its grounds of refusal on the amenity and sediment and erosion control impacts, thereby requiring the evidence of those relevant experts to be led, has meant that at least part of the proceeding was frivolous and, or alternatively, vexatious; and
- that, therefore, the discretion of the court to order costs ought to be exercised in favour of the appellant against the respondent.
- [14]The respondent contested both the analysis of the giving of the evidence referred to and, accordingly, its consequences. Because I have reached the conclusion that the respondent’s conduct was not frivolous or vexatious, it is unnecessary to address the contention raised by the respondent about uncertainty regarding the actual terms of the costs orders sought. Turning, then, to the central issue, I accept the respondent’s submissions that, insofar as there was continued agitation of the “amenity” and the “sediment and erosion control” issues, such agitation was not unjustified and did serve substantive forensic purposes.
- [15]The reasons why I accept the respondent’s approach are:
- that the original hearing before Robin QC DCJ did involve a legitimate contest between relevant experts about the sealing of Barrie Lane and the potential impacts concerning noise and dust if that route were to be left unsealed in its use as a quarry haul route; and
- that there were other parties to the proceeding, including the submitter co-respondents, who raised their own issues and who challenged some of the matters agreed between the experts, particularly with respect to noise, dust and water.
- [16]It is unnecessary because of the extent to which the respondent’s written submissions have detailed the evidentiary matters to which I have just referred to repeat them. Additionally, there is nothing that I can see in the respondent’s recitation of the relevant factual matters that could make them contestable. This is particularly in light of the final findings by Robin QC DCJ in that initial hearing that, while Barrie Lane could be used as a haul route for the quarry which was proposed by the appellant, that haul route ought to be sealed.
- [17]It is of importance that the Court did, in that initial hearing, accept the submission that the issues concerning Barrie Lane involved safety “as well as amenity”: see Mackay Resource Developments Pty Ltd v Mackay Regional Council & Ors [2013] QPEC 57 at [35].
- [18]Also, I find that the way in which the respondent conducted the leading of evidence at the initial hearing in respect of water, erosion and sediment control issues was pursuant to the proper exercise of the role of a litigant in the circumstances in which it found itself, particularly where I accept that it was unnecessary for the appellant to lead evidence in response to any allegation by the respondent on such issues after the production of the second Joint Expert Report dated 20 May 2013.
Outcome
- [19]Although the appellant raised an argument concerning any contention that might be raised by the respondent seeking its costs, in the circumstances of its absence it is unnecessary to address that matter.
- [20]Consequently, for the reasons that I have canvassed here, the circumstances do not arise for the ordering of costs since the Court does not consider that the proceeding as a whole, or any part of the proceeding, to have been, from the perspective of the conduct of the respondent, conducted in any frivolous or vexatious way.
- [21]Thus, because this issue has been raised, it is appropriate that an order be made. That order is to be an order that there be no order as to costs of the appeal.