Hartley v Isaac Regional Council
[2015] QPEC 56
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- Unreported Judgment
- Hartley v Isaac Regional Council[2015] QPEC 56
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Hartley v Isaac Regional Council[2015] QPEC 56
Hartley v Isaac Regional Council[2015] QPEC 56
PLANNING & ENVIRONMENT COURTOF QUEENSLAND
CITATION: | Hartley & Hartley v Isaac Regional Council & Minumbra Pty Ltd [2015] QPEC 56 |
PARTIES: | EVAN JOHN HARTLEY and JOAN HARTLEY (appellants) v ISAAC REGIONAL COUNCIL (respondent) and MINUMBRA PTY. LTD (co-respondent by election) AND EVAN JOHN HARLTEY and JOAN HARTLEY (appellants) v ISAAC REGIONAL COUNCIL (respondents) and MINUMBRA PTY. LTD. (co-respondent by election) |
FILE NO/S: | BD1953/14 and BD1955/14 |
DIVISION: | Planning & Environment Court |
PROCEEDING: | Costs application |
ORIGINATING COURT: | Planning & Environment Court, Brisbane |
DELIVERED ON: | 20.11.15 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 11.11.15 |
JUDGE: | Robertson DCJ |
ORDER: | In both appeals, the Appellants will pay the Respondents costs of and incidental to the Appeal and the application for costs, assessed on the standard basis or as agreed, excluding the costs payable by them pursuant to Orders made 18.3.15, 11.6.15, 30.6.15 and 17.7.15. |
CATCHWORDS: | PLANNING AND ENVIRONMENT; where the respondents are seeking that the appellants pay its costs of two appeals and the application to be assessed on the standard basis, excluding costs already payable by the appellants to the respondents as a result of previous orders. COSTS; construction of s 457 of the Sustainable Planning Act; where the appellants unilateral decision to discontinue their appeals constitutes a “surrender”. |
COUNSEL: | Appellants/ Respondents: Mr Edwards First Respondent/Applicant: Mr Ure Second Respondent: (no appearance) |
SOLICITORS: | Norton Rose Fulbright Australia for the Appellants King and Company Solicitors for the First Respondent Second Respondent: (no appearance) Legislation considered Sustainable Planning Act 2009 Uniform Civil Procedure Rules 1999 Cases Altitude Corporation Pty Ltd v Isaac Regional Council (No 2) [2015] Q.P.E.L.R. 139 Cox v Brisbane City Council (No 2) [2014] Q.P.E.L.R. 92 Hoffie v Brisbane City Council and Anor (2013) 197 LGERA 28 Hydrox Nominees Pty Ltd. v Noosa Shire Council (No 2) [2015] Q.P.E.L.R. 168 Kiama Council v Grant (2006) 143 LGERA 441 Nadic Investments Pty Ltd v Townsville City Council & Anor (2015) QPEC 48 |
- [1]The Council is seeking an order that the appellants (the Hartleys) pay its costs of the appeal and this application to be assessed on the standard basis, excluding costs already payable by the Hartleys to Council pursuant to Court Orders made 18.3.2015, 11 June 2015, 30.6.15 and 17.7.15.
Background
- [2]The costs application relates to two appeals instituted by the Hartleys both of which have now been discontinued.
- [3]Appeal No. 1955/14 was an appeal by the Hartleys against the decision of Council to refuse a MCU impact assessable development application for construction of a 1680 room work camp and ER Activity – sewerage treatment plant, on 2 Lots in Central Queensland which are on the Peak Downs Highway approximately 1 km from Coppabella. Appeal No. 1953/14 was against a decision by Council to refuse an impact assessable MCU DA to construct a 66 room motel on one of the Lots involved in the other application, together with a managers residence.
- [4]To say that the Hartleys have been dilatory in prosecuting the appeals is an understatement. There is no issue that they have persistently failed to comply with the Planning and Environment Court Rules, and court ordered timetables designed to progress the matters. It has been Council and not the Hartleys which has done its best to ensure that the appeals progressed. As the following uncontested brief chronology proves, the Hartleys have egregiously failed to comply with their implied undertaking to proceed in an expeditious way as required by r 5 UCPR. Whether this is their fault, or the fault of their consultants and advisors is not known, although their project manager Mr John Clarke, who gave evidence in the costs hearing, seemed at one point to attribute fault to the Hartleys.
The uncontested chronology
- [5]Both appeals were filed on 26.5.14. The Hartleys disregarded the mandatory requirement of r 18(3) of the Rules, and failed to apply to the Court for directions within 3 months of filing their appeals.
- [6]The appeals were therefore listed for special review by the ADR Registrar on 11.12.2014. The review had to be adjourned because of the failure of the Hartleys to provide submitters with notice of the appeals, or prepare adequate material in respect of public notification.
- [7]On 30.1.15, the review was again adjourned due to the Hartleys failure to prepare adequate material in respect of public notification.
- [8]On 13.2.2015 directions were made in terms of a draft proposed by Council. One of the orders required the Hartleys to respond to a Council Request for particulars dated 26 June 2014. At the further review on the 25.2.15, they had not given a complete response. The review was adjourned to 6.3.15. The Hartleys had again failed to comply with one of the orders made on 13.2.15, in that they had failed to make disclosure in either appeal.
- [9]Council filed an application in each proceeding on 13.3.15 to compel disclosure and to re-set the timetables. These applications were returnable on 18.3.15 when the Hartleys did not appear. The Court made the orders sought by Council and ordered the Hartley’s to pay costs.
- [10]The Council complied with the Court Orders made on 18.3.15 and notified its list of experts on 2.4.15. The Hartleys did not comply with the orders, and did not provide their list of experts until 9 April 2015.
- [11]The matter then proceeded, with a number of consent orders being made by the ADR Registrar. The Hartleys had nominated Mr Tyson Dodd as their nominated expert in air quality and noise. When he was contacted on 27.5.15 by Mr King, the expert nominated by Council, Mr Dodd said he was unaware of his nomination as an expert. This has never been adequately explained.
- [12]On the 29.5.15, Mr David Perkins, Council’s nominated town planning expert contacted Mr Wallace of RPS who was nominated as an expert by the Hartleys, to be told that Mr Wallace had not worked for RPS for a year.
- [13]In response to the obvious query from Council’s lawyers, the Hartleys then nominated Mr Barwon Gooch of RPS as their town planning expert.
- [14]On the 4.6.15, this changed again, and the Hartleys nominated Mr Simon Foster of RPS as their town planning expert. They also nominated Mr Owen from RPS as an economic needs expert and advised that he would report in 14 days.
- [15]By the 5.6.15, the Hartleys were once again in default of Court Orders, in this case the consent order made by the Registrar on 20.4.15.
- [16]The Council was then compelled to again apply for orders to re-set the timetable because of the Hartleys non-compliance.
- [17]On 11.6.15, the Hartleys consented to Orders 1 – 8 of a draft put forward by Council which re-set the timetable for the joint expert meetings. Once again costs orders were made against them.
- [18]On the same day, but after the review, Mr Perkins contacted Mr Forsyth who said he would be away on holidays from 10 June until mid-July and uncontactable. Unsurprisingly, the Hartleys lawyers advised Council’s Lawyers that their clients would be unable to comply with the consent orders made 11.6.15, because of Mr Forsyth’s unavailability, and their inability to find a replacement expert. On the 15th June Mr Coghlin, Council’s economic needs expert, contacted Mr Owen who informed him that he had not in fact been appointed by the Hartleys for the appeal. There is some dispute about this, which I will refer to later in these reasons.
- [19]On the 18.6.15, Council’s lawyers filed applications in both appeals seeking orders to strike out the notices of appeal for want of prosecution. These applications were mentioned on 19.6.15 and set down for hearing on 30 June 2015. On 29.6.15, Mr Edwards of counsel, who was then the lawyer for the Hartleys by direct brief, emailed Judge Searles who was listed to hear the strike out applications, indicating that his clients were not ready to proceed and would be seeking an adjournment.
- [20]On 30.6.15, the Court adjourned the strike out applications, on the basis that the Hartleys pay the Council’s costs.
- [21]Subsequently, the strike out applications were again listed for hearing on 17 July 2015.
- [22]On 14.7.15, the Hartleys served an affidavit of Mr John Clarke on Councils’ lawyers. Mr Clarke provided another affidavit for the costs hearing. He says he has been the project manager for the Hartleys since March 2009 of their “Coppabella project”, which included the proposals the subject of these appeals. The Hartleys have a Brisbane address according to the notices of appeal. Mr Clarke says that Mr Hartley is unwell and virtually bed ridden, and that his wife looks after him and their motel at Moranbah. He says “I receive instructions from Mr Hartley and report to him at his residence at the Drivers Rest Motel.”
- [23]In the July affidavit, Mr Clarke states (at [21]):
“I am able to say now that the appellants experts should now be in a position to meet council’s experts (sic) in late August, 2015 (sic) so that the necessary reports can be completed in time for the matter’s (sic) being heard by the court at its late August/September sittings.”
- [24]On the same day, Mr Owen again informed Mr Coghlin that he had not been commissioned to act as an expert in the appeals, and had not accepted any work in relation to the appeals.
- [25]On 17.7.15, essentially relying on Mr Clarke’s affidavit, Mr Edwards submitted that as the difficulties with the Hartleys planning consultants had been sorted out, it would be inappropriate to strike out the appeals. The Court set a new timetable and adjourned the strike out applications. Costs were awarded against the Hartleys. Later in that day, in accordance with the Court’s proposal, a consent order was presented by both parties for his Honour Judge Dorney QC to sign.
- [26]One of the orders made by consent that day was that the Hartleys serve a list specifying the name and field of expertise of each expert witness proposed to be called by them, along with a written acknowledgement from each of the experts that they have been engaged. This was to be done by 27.7.15. The Hartleys failed to comply.
- [27]On 29.7.15, Council’s lawyers wrote to Mr Edwards in relation to this non-compliance. On 31.7.15, Mr Edwards responded, by reference to the “Motel at Coppabella (Hartley)” and provided an attachment from Mr Forsyth which, on its face, seems to confirm his appointment, but only in relation to the Motel proposal (1953/14). On 4.8.15, Mr Edwards sent email correspondence to Council’s lawyers, again referring only to the Motel proposal, which contained an email from Mr Owen.
- [28]The solicitors wrote to Mr Edwards on 5.8.15 regarding compliance with the 17 July 2015 Court Orders, and asking him what his clients’ intentions were in relation to appeal 1955/14. There was no response. Again, the solicitors wrote to Mr Edwards on 10.8.15 requesting an urgent response.
- [29]On 13.8.15, Norton Rose Fulbright entered as Solicitors for the Hartleys, and filed and served a Notice of Discontinuance of the whole of appeal 1955/2014.
- [30]Correspondence then passed between Solicitors. In a letter dated 18 August 2015, Mr Timbs, the Hartleys solicitor, informed Council’s solicitor that “our clients are committed to pursuing the appeal which remains on foot and maintaining an October 2015 hearing date for that appeal.” To that letter was also attached a letter dated 18.8.15 signed by both Mr Forsyth and Mr Owen, of RDS, confirming their appointment as experts for the Motel appeal. Mr Timbs referred to the earlier advice to this effect, and was sending this letter to put beyond doubt his clients’ compliance with the 17 July order.
- [31]On 27.8.15, the needs experts provided a completed JER which was then provided to the planners. On 1.9.15, the planners provided a completed JER to the parties.
- [32]On the 2.9.15, the Hartleys filed a Notice of Discontinuance in relation to appeal 1953/14.
The relevant law
- [33]The power to order costs is conferred by s 457(1) of the Sustainable Planning Act 2009 (the SPA):
“(1) Costs of a proceeding or part of a proceeding, including an application in a proceeding, are in the decision of the Court.”
- [34]By reference to a number of decisions concerning s 457 of Judge Rackemann DCJ (Cox v Brisbane City Council (No 2) [2014] Q.P.E.L.R. 92 at [2] – [3]; Hydrox Nominees Pty Ltd. v Noosa Shire Council (No 2) [2015] Q.P.E.L.R. 168 at [3] and [30].), her Honour Judge Bowskill QC, in Nadic Investments Pty Ltd v Townsville City Council & Anor (2015) QPEC 48 at [6], wrote:
“[6] The discretion is a broad one, to be exercised judicially, but without any presumption that costs ought to follow the event, or otherwise, on the basis that there is some qualified protection against an adverse costs order. While the success of a party is not a determinative factor it is clearly relevant and, in some cases, significant consideration.”
- [35]Section 457(2) sets out 13 non-exhaustive matters that the Court may consider in deciding to award costs. In the circumstances, only four of those matters are engaged:
“(a) the relative success of the parties in the proceeding;
…
(d) whether a party commenced or participated in the proceeding without reasonable prospects of success;
…
(i) whether a party has acted unreasonably in the conduct of the proceeding, including, for example –
- (i)by not giving another party reasonable notice of the party’s intention to apply for an adjournment of the proceeding; or
- (ii)by causing an adjournment of the proceeding because of the conduct of the party;
…
(l) whether a party has incurred costs because another party has defaulted in the court’s procedural requirements;
…”
- [36]I will deal with each seriatim.
Relative success
- [37]Clearly the Council has been wholly successful in the proceedings. Although said in the context of a successful merits appeal by the developer, which had then applied for costs against the same Council; the observation of Rackemann DCJ in Altitude Corporation Pty Ltd v Isaac Regional Council (No 2) [2015] Q.P.E.L.R. 139 at [4], that “the relative success of the parties is a relevant factor and might, in a particular case, prove decisive…”, is apposite here.
- [38]I agree with Mr Ure, (indeed Mr Edwards made no attempt to argue otherwise), that the unilateral decision of the Hartleys to discontinue their appeals, constitutes a “surrender” in the sense used by Durward SC DCJ in Hoffie v Brisbane City Council and Anor (2013) 197 LGERA 28. In Kiama Council v Grant (2006) 143 LGERA 441, at para [80], Preston J summarises the principles that arise in cases such as these. His Honour wrote:
“The principles that emerge from these cases are that in a civil enforcement or judicial review case where there has been no hearing on the merits:
- (a)where one party effectively surrenders to the other party by:
- (i)discontinuing without the consent of the other party; or
- (ii)giving undertakings to the Court or submitting to the Court making orders against the party substantially in the terms or to the effect claimed by the other party;
the proper exercise of the costs discretion will ordinarily be to make the usual order as to costs, unless there is disentitling conduct on the part of the other party;
- (b)…”
- [39]I can infer that appeal 1953/14 was discontinued upon receipt of the joint town planning report, informed as it was by the joint needs experts’ report. The discontinuance of appeal no. 1955 of 2014 is more difficult to explain. Mr Clarke attempts to explain it generally by blaming “the sudden and unexpected collapse in 2014 of the coal mining industry in the district”, but for reasons I will expose under another heading, this explanation cannot be accepted. In my view, the surrender of the Hartleys, in all the circumstances of the case, on its own, would be suffice to justify an order for costs in this case.
Reasonable prospects of success s 456(2)(d)
- [40]At the time the application was made in 2012, it was supported by a positive town planning report by Mr Wallace of RPS. The focus of course is on prospects of success at the time the Hartleys “commenced” these proceedings i.e. 26.5.14. The reasons for refusal referred to what is clearly conflict with the relevant planning controls at a number of levels. Mr Ure refers to these conflicts at paragraphs [15] to [26] of his written outline. There is no doubt in my mind, on the acceptable evidence before me, that the real focus of the appeals would have been on whether or not the Hartleys could establish sufficient grounds to approve notwithstanding conflict. The only ground exposed on the material before me was need.
- [41]Mr Clarke, in his affidavit sworn on 14 July 2015, in 1953/14, says (at [19]) that it was not until 17.4.15 that “it was revealed by the Council for the first time to me and our legal advisor Mr Edwards” that need was the “major outstanding issue” in relation to the works camp proposal. This proposition cannot be accepted. There is no affidavit from Mr Edwards in support, and nor could he, as in both Notices of Appeal filed 26 May 2014 (apparently prepared by him), economic need is identified as a ground. Mr Clarke was a little circumspect in accepting whether he read the Notices at the time; but finally unequivocally acknowledged that he had when answering a question from me.
- [42]Mr Clarke disputes that Mr Owen was not engaged in June as an expert for the purposes of the appeals. At [20] of his affidavit sworn 14 July 2015 he states:
“20. Following that meeting I engaged RPS to research and prepare such report. I was informed by RPS that its Mr William Owen would carry out this task. I am at a loss to understand by Mr Owen would say he had not been so engaged because he had prepared an initial report letter and that it had been returned by me to him with a request that he take into consideration matters which appeared to me to have been overlooked.”
- [43]Ms Dowling who was representing Council in the appeal under the direction of Mr Quirk wrote to the Hartleys Solicitors on 26.10.15, referring to that paragraph, and requesting disclosure of the documents therein described, which had not been previously disclosed by the Hartleys.
- [44]Mr Timbs disclosed the documents on 2.11.15. Included was a letter from Mr Owens dated 12 June 2015, described as a “Coppabella Needs Overview.”
- [45]It is clearly an overview assessment of the workers accommodation village and motel market in and around Coppabella, clearly of vital significance to the issue of need. It shows clearly on its face that Mr Owen had not been appointed as an expert for the court proceedings at that stage. The letter is quite clearly an advice to the effect that need could not be established for either project on the basis of the data which showed a significant decline in the non-resident, on shift population in the Council area from a peak of 17130 in 2012, to 14950 in 2013 and 11090 in 2014. The data also revealed a significant over supply of workers accommodation in accordance with those declining worker population figures. It also revealed a vacancy rate of 70% in 2014. He concludes:
“If this were my project and my money, I would not pursue the appeal.”
- [46]As he says, Mr Clarke made some comments to Mr Owen in an email dated 17 June 2015 (copied at least to Mr Hartley), to which Mr Owen responded on the same day. His response clearly shows that he had been engaged only to do an “initial level of analysis”, and he required confirmation of a different arrangement to perform “additional work”, which I assume did not occur until he was commissioned to become involved in the JER process only in relation to the Motel proposal at a later date.
- [47]There is very little evidence of advice as to prospects prior to the filing of the Notices of Appeal. Only in cross-examination did Mr Clarke say that he took advice from Mr Wallace, but he was unable to produce anything written.
- [48]The JER needs expert report powerfully demonstrates (expanding on Mr Owen’s June letter to Mr Clarke) that contrary to Mr Clarke’s assertion in para 3 of his affidavit filed 15 October 2015:
“3. Following the sudden and unexpected collapse in 2014 of the coal mining industry in the Coppabella, Moranbah and Emerald regions, each of these projects has had to be abandoned with costs incurred by appellants including but not limited to development applications fees, experts’ reports and legal expenses. I know this because I have been closely involved in the project and its costings and from my frequent consultations with the appellants”,
the coal mining industry had been in dramatic decline since 2013. It is simply inconceivable that he was not aware of this.
- [49]At [6] of that affidavit he states:
“6. From my close association with the appellants, I am aware that the motel owned by them at Moranbah and their service station at Nebo were trading very successfully. However I have been informed by the appellants that the occupancy of their motel has dropped from the time the appeals were filed an average at the time of approximately 70% to less than 10% now and the Nebo Service station is trading less profitably and the traffic on the Peak Downs Highway that services the Central Tablelands mining area is substantially less. The Peak Downs Highway is the highway that runs between Mackay and Clermont through the heart of the coal mining region.”
- [50]The economists’ data in the JER shows that accommodation vacancies were declining from 2013 in accordance with the downturn in demand as a result of the decline in the coal mining industry. There are no documents or ledgers produced to support what is hearsay, however, the Hartleys filed their appeals on 26.5.14, and did nothing until forced to do so until December 2014. Obviously the decline should have been obvious to them and their consultants at that time, and yet they pressed on with the appeals.
- [51]Mr Clarke blames “consultants”, in particular Mr Wallace for the continuance of the appeals, but this cannot be accepted given there is nothing from Mr Wallace since his report in 2012. If indeed it is the ease that the Hartleys pursued what were hopeless appeals on the advice of consultants and/or lawyers, then they have the right to pursue those people.
- [52]It is the clearest case of a party commencing and continuing a proceeding without reasonable prospects of success, and again, if this was the only basis, I would award costs to the Council for this reason alone. As Mr Ure notes, it appears that the first time the Hartleys sought advice (on the material before me) about economic need was after 17.4.15. This is remarkable, given the importance of the issue, and given that the Hartleys were already the subject of one, and possibly two, adverse costs orders, at that time.
S. 457(2)(j) and (l)
- [53]The undisputed conduct of the Hartleys is set out above. Their failure to comply with court orders is egregious. It has put the Council to a great deal of unnecessary expense.
Disentitling conduct
- [54]Although not referred to in the Hartleys written outline, Mr Clarke blames the Council for his clients’ predicament. He refers to the application fees charged by Council at the time the applications were lodged. These were later reduced, as Mr Quirk explains in his affidavit. There was no Ombudsman’s order. Council reduced the fees after being contacted by the Ombudsman.
- [55]What this suggestion overlooks is that the discretion to award costs only arises once a proceeding has been commenced. It is not necessary for me to decide in this case because this factual issue is entirely neutral in any event, but it seems to me that in most cases, the relevant “disentitling” conduct by a party would be in the course of the proceedings, not something that happened (in this case when the applications were lodged) before the proceedings commenced.
Orders
- [56]In both appeals, the appellants will pay the respondents costs of and incidental to the Appeal and application for costs, assessed on the standard basis or as agreed, excluding the costs payable by them pursuant to Orders made 18.3.15, 11.6.15, 30.6.15 and 17.7.15.