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Gray v Gympie Regional Council[2016] QPEC 49

Gray v Gympie Regional Council[2016] QPEC 49

 

PLANNING & ENVIRONMENT COURT OF  QUEENSLAND

 

CITATION:

Gray v Gympie Regional Council [2016] QPEC 49

PARTIES:

DEIRDRE GRAY

Appellant

v

GYMPIE REGIONAL COUNCIL

Respondent

FILE NO/S:

22/15

DIVISION:

Planning and Environment Court at Gympie

PROCEEDING:

Application for costs

DELIVERED ON:

27 September 2016

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Bowskill QC DCJ

ORDER:

The appellant pay the respondent’s costs of the appeal, from 24 June 2016, including the costs of this application, on the standard basis.

CATCHWORDS:

PLANNING AND ENVIRONMENT – Costs – Whether the appellant should be ordered to pay the respondent’s costs of an appeal, in circumstances where the appeal is discontinued

Sustainable Planning Act 2009, s 457

Uniform Civil Procedure Rules 1999, r 430

Deputy Commissioner of Taxation v Ahern (No 2) [1988] 2 Qd R 158

Hoffie v Brisbane City Council (2013) 197 LGERA 28

Kiama Council v Grant (2006) 143 LGERA 441

Manly Wharf Pty Ltd v Manly Council (1997) 98 LGERA 245

New South Wales Crime Commission v Vu [2009] NSWCA 349 

One.Tel Ltd v Commissioner of Taxation (2000) 101 FCR 548

SOLICITORS:

Connor O'Meara Solicitors for the Appellant

P&E Law for the Respondent

Introduction

  1. [1]
    In 2015 Ms Gray made an application to the Gympie Regional Council for approval for development comprising a material change of use, to convert an existing dwelling house, within a residential living zone, into a “hardware and trade supplies” store.    On 16 September 2015 the Council resolved to refuse the application, on a number of bases, including conflict with the residential living zone of the planning scheme, and conflict with the strategic framework of the planning scheme.[1]
  2. [2]
    By notice of appeal filed on 14 October 2015, Ms Gray appealed the Council’s decision to this Court.  The appeal was lodged for Ms Gray, by Mr Hartley, of Plansmart Development Solutions (town planners) as her agent.
  3. [3]
    On 2 August 2016, Ms Gray discontinued her appeal (by notice of discontinuance dated 29 July 2016).
  4. [4]
    The Council seeks an order under s 457 of the Sustainable Planning Act 2009 that Ms Gray pay its costs of the proceeding, or some part of them at least.  Ms Gray submits the appropriate order is that each party bear their own costs. 
  5. [5]
    The application has been dealt with on the papers, on the basis of material filed, and written submissions from both parties.[2]

Procedural history, leading to discontinuance of appeal

  1. [6]
    The appeal was commenced, according to Mr Hartley, on the basis of a view he formed that Ms Gray had reasonable prospects of success.[3]
  2. [7]
    As early as 4 February 2016, the solicitor for the Council invited Ms Gray to withdraw her appeal, on the basis that it had little prospect of succeeding; or at least consider engaging in early mediation, before any substantive steps were taken in the proceeding.[4]  This was met by a response, from Mr Hartley, refuting the Council’s position as to prospects; but agreeing the dispute is largely about the sufficiency of grounds to support the application, despite conflict with the planning scheme; and more broadly alleging conflict of interest on the part of the Chief Executive Officer of the Council, and other similar allegations.[5]
  3. [8]
    Fairly considerable further correspondence was exchanged between the Council’s solicitor and Mr Hartley on behalf of Ms Gray.[6]  A mediation conference did eventually take place, before the Registrar, on 27 April 2016, although the matter did not resolve.[7] 
  4. [9]
    On 20 May 2016, Ms Gray appointed Connor O'Meara as her solicitors. 
  5. [10]
    On 23 May 2016, directions for the conduct of the appeal, which were proposed by Ms Gray’s solicitor, were made.  These directions included orders for disclosure, and the exchange of lists of experts, as well as a direction for a further mediation conference.[8]
  6. [11]
    Both parties complied with the order for disclosure.[9]  On 24 and 27 June, the Council identified its experts (town planning, traffic and need).[10]  On 30 June Ms Gray identified her town planning expert (Mr Hartley),[11] but then did not identify any other experts.  The Council engaged its three experts, by instructions dated 28 June 2016.[12]  When the Council complained, on 5 July, to the solicitor for Ms Gray, about her failure to identify experts other than Mr Hartley, the response was “we cannot see how that prejudices the ability of your client to prepare for the appeal and comply with the directions order”.[13]  
  7. [12]
    Mr Connor, the solicitor for Ms Gray, says that on 6 July he provided advice to Ms Gray, in terms that her prospects of success at a hearing of the appeal did not justify the cost and expense involved, and that her prospects of success overall were less than 50 percent.[14]  As Mr Hartley says, Connor O'Meara’s views “were significantly more pessimistic than [his] views”.[15]  Ms Gray provided Mr Connor with instructions to try and resolve the appeal on 12 July 2016, seemingly through Mr Hartley.[16]
  8. [13]
    Mr Hartley, in his affidavit, refers to the local government election taking place in March 2016, with 6 new councillors being elected to the Council, and both Ms Gray and him making “representations to a number of newly elected Councillors” in relation to this matter, at the time of the unsuccessful mediation and directions hearing (presumably, 23 May),[17] and also later on 16 and 21 July.[18]  Mr Hartley’s affidavit includes material that is simply not admissible, even on an application such as this.  For example, purporting to depose to what Ms Gray “believed”;[19] and deposing to being told things by an unnamed Councillor, including about what happened at a “Councillor Workshop”[20], in a manner that does not comply with rule 430(2) of the Uniform Civil Procedure Rules 1999,[21] because he does not state who the source of the information is, nor does he state that he believes what he has been told, let alone any grounds for the belief[22].   Even if I were inclined to disregard the rules of evidence (cf r 23(1) Planning and Environment Court Rules), I would give little or no weight to this material.
  9. [14]
    In “additional submissions” provided on Ms Gray’s behalf late on 23 September 2016, it is submitted that Ms Gray does not seek to rely on the truth of what Mr Hartley was told by the Councillor “merely that the discussions occurred,[23] in order to explain the steps that [she] took after receiving advice” from her solicitor on 6 July.  I proceed on the basis that Ms Gray and Mr Hartley “made representations to a number of newly elected Councillors”, after the unsuccessful mediation and directions hearing;[24] that Mr Hartley spoke to a Councillor on 16 July, and as a result of that conversation advised Connor O'Meara to “wait to hear the outcome of the workshop, before discontinuing the appeal”; and then spoke again to a Councillor on 21 July.[25]  But I do not otherwise regard the content of [16] (1st sentence) and [17] of Mr Hartley’s affidavit as admissible, for the reasons already given.  They are plainly concerned with the content of the conversations Mr Hartley says he had with this unnamed councillor; not merely the fact that he had a conversation(s).
  10. [15]
    It seems a without prejudice offer to resolve the appeal was made by Ms Gray on 13 July, but rejected by the Council.[26]   The terms of that are not before me, and it does not form part of either party’s argument on this costs application
  11. [16]
    The directions required experts for each party in the same area of expertise to meet before 1 July, and complete joint reports by 19 July.  The Council’s town planning expert (Shane Adamson) had arranged to meet with Mr Hartley on 26 July 2016, but the meeting was cancelled by Mr Hartley at the last minute, on the basis the appeal may shortly be withdrawn.[27]
  12. [17]
    On 26 July 2016, Ms Gray’s solicitors sent a letter to the Council’s solicitors, advising that Ms Gray had instructed them to discontinue the appeal “assuming the appeal is not successfully resolved tomorrow”.[28] This letter also says:

“Our client’s instructions emerged from a range of factors, but include:

  1. a peer review of the noise assessment provided by Noise Measurement Services;
  1. our firm’s views about our client’s prospects of success in the appeal; and
  1. your client’s recent rejection of our client’s proposal to resolve the matter.

Our client has accepted our advice, although it (sic) clearly is very disappointed with that outcome.

We also note that following the rejection of our client’s proposal to resolve the appeal, our client has caused to be made various representations direct to councillors about a form of resolution.  We understand that those representations have been successful in persuading the councillors about a mechanism to agree a way forward between the parties but, for whatever reason, those instructions have not been communicated to you and you continue to prepare for the appeal, an outcome our client wishes to avoid.

Our client has been informed that there is another Council meeting tomorrow at which time a resolution of the appeal will be discussed, however if that does not occur, our client wanted to advise your client of its position nonetheless.”

  1. [18]
    The Council’s experts were advised to stop work on 27 July 2016. Prior to this, the Council had incurred costs in the form of fees payable to the need expert (Mr Brown), in the amount of $3,542.00 and the town planning expert (Mr Adamson) in the amount of $5,791.50.[29]  The traffic expert, a Mr O'Brien, is a Council employee.
  2. [19]
    The notice of discontinuance was prepared on 29 July 2016 and served on the Council on that day.[30]  It was filed on 2 August 2016.

Council’s application for costs

  1. [20]
    In its primary submissions, the Council contended for an order that Ms Gray pay its costs of the appeal; or alternatively its costs from the day after the unsuccessful 27 April mediation.  In its reply submissions, the Council submits that, whilst it maintains its primary position in relation to the costs application, in light of the evidence and submissions on behalf of Ms Gray, “it would be appropriate to order costs from 6 July 2016, at least” (6 July being the date Mr Connor says he advised Ms Gray that her prospects were less than 50%).
  2. [21]
    The power of the court to make an order for costs is conferred by s 457(1) of the SPA which provides that:

“Costs of a proceeding or part of a proceeding, including an application in a proceeding, are in the discretion of the court.”

  1. [22]
    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. 
  2. [23]
    The matters the court may have regard to in exercising the discretion include, but are not limited to, the matters set out in s 457(2).  The particular matters the Council relies on are:
  1. (a)
    the relative success of the parties in the proceeding;
  1. (b)
    the commercial interests of the parties in the proceeding;
  1. (d)
    whether a party commenced or participated in the proceeding without reasonable prospects of success;
  1. (g)
    whether the proceeding involves an issue that affects, or may affect, a matter of public interest, in addition to any personal right or interest of a party to the proceeding;
  1. (i)
    whether a party has acted unreasonably in the conduct of the proceeding; and
  1. (l)
    whether a party has incurred costs because another party has defaulted in the court’s procedural requirements.
  1. [24]
    In summary, the Council submits that it should recover its costs, or at least part of them, because:
    1. (a)
      it was successful in the appeal, because its decision was not overturned;
    2. (b)
      Ms Gray had a commercial interest in seeking to obtain approval to begin a commercial use in a residential area;
    3. (c)
      Ms Gray did not have reasonable prospects of success, given the admitted conflicts with the planning scheme, and given that she did not nominate experts to address all of the issues in dispute;
    4. (d)
      the Council defended the appeal to protect the public’s interest in orderly development, and there was no matter of public interest raised by the appeal;
    5. (e)
      Ms Gray acted unreasonably, by obtaining directions orders, but not complying with them, knowing the Council was incurring costs, and failing to discontinue the proceeding, or advise the Council of her intention within a reasonable time; and
    6. (f)
      Ms Gray failed to comply with the directions orders and the implied undertaking in r 4(3) of the Planning and Environment Court Rules warrants a sanction in accordance with r 5(c).
  2. [25]
    In my view, it is appropriate that the Council recover part of its costs of the appeal.  Although I did consider an order that Ms Gray pay the Council’s costs of the appeal, from and including 23 May 2016 (the date on which the directions, proposed by Ms Gray, were made), I have ultimately decided, for the following reasons, that the appropriate order is that Ms Gray pay the Council’s costs from 24 June 2016.  The intent of the order is that the Council be compensated for wasted costs and expenses it has incurred, in complying with the directions, in particular as to engagement of experts.
  3. [26]
    As the history outlined above demonstrates, this is a case in which Ms Gray, after litigating the appeal for a period of time, “effectively surrendered” to the Council.   This is not a case where there has been “some supervening event or settlement [that] so removes or modifies the subject of the dispute that, although it could not be said that one side has simply won, no issue remains between the parties except that of costs”.[31]  The authorities referred to, in footnote 31, clearly support the making of an order for costs in favour of the Council, in the present circumstances.
  4. [27]
    There is nothing about the Council’s conduct, in relation to the appeal, which could be said to disentitle it to an order that it recover its costs.  The Council was obliged to take steps to comply with the directions which were made on 23 May, including by engaging experts.  It has acted reasonably in doing so.  When Ms Gray was not complying, by advising of the names of her experts, and the Council was chasing her solicitor about that, the solicitor for Ms Gray positively encouraged the Council to continue to comply – by saying that “we cannot see how that [the failure to identify any experts, other than Mr Hartley] prejudices the ability of your client to prepare for the appeal and comply with the directions order”.[32]  That was in a letter sent just the day before Mr Connor says he advised Ms Gray that her prospects were less than 50%; although no steps were taken to stop the Council complying with the directions, or incurring costs and expenses, until 26 July.
  5. [28]
    There may be some room for debate about whether Ms Gray commenced this appeal with or without reasonable prospects of success.  She did not obtain legal advice before commencing the appeal, relying instead on Mr Hartley, the town planner, who acted as her agent.   Once she did retain a solicitor, it was not very long before she received the advice, on 6 July, that her prospects were less than 50%.  The material does not suggest anything substantive had changed in that time; just that the solicitors took a “significantly more pessimistic view” than the town planner.[33]  In those circumstances, it seems reasonable to infer Ms Gray’s prospects were never very good.   But I am not in a position to form a definite view about this, and in any event, do not regard it as necessary for me to do so, in order to determine the Council’s costs application. 
  6. [29]
    That Ms Gray has a commercial interest in the proceedings, because she was seeking approval to establish a business on residential zoned land, and that there was no matter of public interest arising in the appeal are also relevant matters.
  7. [30]
    In terms of the Council’s arguments about Ms Gray’s conduct being unreasonable (s 457(2)(i)), and Ms Gray causing the Council to incur costs because she defaulted in complying with the directions (s 457(2)(l)), I consider these matters are both aptly reflected in the observation in the authorities that where a party discontinues their proceeding, other than in circumstances where that is consequent upon some kind of compromise or settlement, and the other party has reasonably incurred costs and expenses, which by virtue of the discontinuance of the proceeding have necessarily been wasted or thrown away, the discontinuing party can, as a matter of fairness, and as an ordinary consequence, expect to be required to pay the other party’s costs, or some part of them.
  8. [31]
    In this regard, it is appropriate to reinforce that costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which they have been put by reason of the legal proceedings.[34]
  9. [32]
    On behalf of Ms Gray, it is submitted there are three important reasons why the Court would not exercise its discretion to award costs to the Council:[35]
    1. (a)
      first, that “it would be contrary to accepted notions of public policy to award costs against a party who discontinues an appeal in circumstances where it took those steps following advice to do so.  In a public policy sense, an award of costs would discourage a party from acting in accordance with advice”;
    2. (b)
      secondly, that the advice provided to Ms Gray changed over time and she was entitled to change her approach to reflect the change in advice; and
    3. (c)
      thirdly, that Ms Gray “should not be penalised for the unexplained difference in views expressed by the Councillor and the instructions provided to the [Council’s] solicitor... that was a matter of some concern and confusion to [Ms Gray].  It was both legitimate and appropriate for [Ms Gray] and [her] town planner to engage with elected representatives of the Council to try and negotiate an outcome”.
  10. [33]
    As to the first of these matters, I can do no better than to repeat what Bignold J said in in Manly Wharf Pty Ltd v Manly Council (1997) 98 LGERA 245 at 250:

“I must say that I am unable to accept the Applicant’s bold submission that the making of a costs order in this case will signal a positive discouragement by the Court of settlement negotiations being entered upon between parties to building or planning appeals, or a positive inducement for parties who have failed to settle the proceedings to litigate them simply to avoid the cost consequences of discontinuance. The goal of settlement negotiations is surely not the avoidance of costs of a discontinuance. It is difficult to conceive of a situation where an applicant would incur the costs of fully litigating a matter simply to avoid the costs of discontinuance. A token prosecution of the litigation would surely not be countenanced by the Court.”[36]

  1. [34]
    As to the second matter, of course Ms Gray was entitled to change her position as her advice changed – but that does not mean that the other party, the Council, ought to be expected to bear the costs which it has reasonably incurred, for ultimately no benefit, in circumstances where the appeal has been discontinued, otherwise than in circumstances where there has been some compromise or settlement.
  2. [35]
    As to the third matter, this submission has no substance, in circumstances where the evidentiary basis for it has not been made out (in terms of the substance of any conversations, as opposed to the fact that conversations occurred).  In any event, as the letter from Connor O'Meara of 26 July[37] indicates, Ms Gray’s (or Mr Harley’s) “representations direct to councillors” were made after the Council rejected the proposal to resolve the appeal (which was on 15 July), by which time much of the cost would already have been incurred; and a view expressed by an unnamed Councillor(s) is not a decision of Council, which is required to be made by a resolution at a Council meeting.
  3. [36]
    Taking into account the procedural history set out above, the submissions of both parties, and the reasonable alternative positions adopted by the Council on this application, I consider it appropriate that Ms Gray pay the Council’s costs, effectively thrown away, from the point in time at which steps were taken to comply with the formal directions made in the appeal, in particular in terms of engaging experts (which I have put at 24 June, on the basis of the history outlined above).  

Order

  1. [37]
    The order will therefore be that the appellant (Ms Gray) pay the respondent’s (Council’s) costs of the appeal, from 24 June 2016, including the costs of this application, on the standard basis.

Footnotes

[1]  Annexure LAM-5 to Mr Manning’s affidavit, affirmed 19 August 2016.

[2]  Council’s primary submissions, dated 26 August 2016; Ms Gray’s submissions, dated 8 September 2016; Council’s submissions in reply, dated 13 September 2016; Ms Gray’s “additional submissions on costs”, dated 23 September 2016.

[3]  Affidavit of Hartley at [4]-[5].

[4]  Letter 4 February 2016, annexure LAM-6 to Mr Manning’s affidavit.

[5]  Letter 15 February 2016, annexure LAM-7 to Mr Manning’s affidavit.

[6]  Mr Manning’s affidavit at [9]-[11].

[7]  Mr Hartley’s affidavit at [8].

[8]  Annexure LAM-12 to Mr Manning’s affidavit.

[9]  Mr Manning’s affidavit at [18] and [19]; Mr Connor’s affidavit at [3].

[10]  Annexures LAM-14 and LAM-15 to Mr Manning’s affidavit.

[11]  Annexure LAM-17 to Mr Manning’s affidavit.

[12]  Annexure LAM-16 to Mr Manning’s affidavit.

[13]  Letter 7 July 2016, annexure LAM-19 to Mr Manning’s affidavit.

[14]  Mr Connor’s affidavit at [6] and [7].

[15]  Mr Hartley’s affidavit at [12].

[16]  Mr Connor’s affidavit at [8]; Mr Hartley’s affidavit at [13].

[17]  Mr Hartley’s affidavit at [10] and [11].

[18]  Mr Hartley’s affidavit at [16] and [17].

[19]  Mr Hartley’s affidavit at [10].

[20]  Mr Hartley’s affidavit at [11] (2nd sentence), [16] (1st sentence) and [17].

[21]  Which applies, by operation of rule 3 of the Planning and Environment Court Rules 2010.

[22]  See Deputy Commissioner of Taxation v Ahern (No 2) [1988] 2 Qd R 158 at 163 and 167; see also New South Wales Crime Commission v Vu [2009] NSWCA 349 at [44], [45], [48] and [50] per Spigelman CJ.

[23]  Relying on Subramaniam v Public Prosecutor [1956] 1 WLR 965 at 970.

[24]  Mr Hartley’s affidavit at [11] (1st sentence), which I have not ruled inadmissible.

[25]  Mr Hartley’s affidavit at [16] and [17] (fact of conversation) and [16] (last sentence).

[26]  Letter 15 July 2016, annexure LAM-22 to Mr Manning’s affidavit.  See also Mr Connor’s affidavit at [10].

[27]  Mr Manning’s affidavit at [37]-[38]; Mr Connor’s affidavit at [15].

[28]  Annexure LAM-24 to Mr Manning’s affidavit.

[29]  Annexures LAM-25 and LAM-26 to Mr Manning’s affidavit.

[30]  Mr Connor’s affidavit at [17]; also Ms Shard’s affidavit, filed 5 August 2016.

[31]  See One.Tel Ltd v Commissioner of Taxation (2000) 101 FCR 548 at [6] per Burchett J; see also Manly Wharf Pty Ltd v Manly Council (1997) 98 LGERA 245 at 249; Kiama Council v Grant (2006) 143 LGERA 441 at [44]-[71] per Preston CJ; both of those cases were referred by Durward SC DCJ in Hoffie v Brisbane City Council (2013) 197 LGERA 28; [2013] QPEC 41 at [21].

[32]  Letter of 5 July, referred to in paragraph [11] above.

[33]  See also Mr Connor’s affidavit at [4].

[34] Latoudis v Casey (1990) 170 CLR 534 at 543 per Mason CJ; Oshlack v Richmond River Council (1998) 193 CLR 72 at [67]; see also Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52 at [34].

[35]  Appellant’s submissions on costs, dated 8 September 2016, at [21]-[24].

[36]  Emphasis added.

[37]  Set out at paragraph [17] above.

Close

Editorial Notes

  • Published Case Name:

    Gray v Gympie Regional Council

  • Shortened Case Name:

    Gray v Gympie Regional Council

  • MNC:

    [2016] QPEC 49

  • Court:

    QPEC

  • Judge(s):

    Bowskill DCJ

  • Date:

    27 Sep 2016

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
Deputy Commissioner of Taxation v Ahern (No 2) [1988] 2 Qd R 158
2 citations
Jump To
Cite 1 - [1988] 2 Qd R 158
Cite 2 - [1988] 2 Qd R 158
Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52
1 citation
Jump To
Cite 1 - (2007) 234 CLR 52
Hoffie v Brisbane City Council [2013] QPEC 41
1 citation
Jump To
Cite 1 - [2013] QPEC 41
Hoffie v Brisbane City Council (2013) 197 LGERA 28
2 citations
Jump To
Cite 1 - (2013) 197 LGERA 28
Cite 2 - (2013) 197 LGERA 28
Kiama Council v Grant (2006) 143 LGERA 441
2 citations
Jump To
Cite 1 - (2006) 143 LGERA 441
Cite 2 - (2006) 143 LGERA 441
Latoudis v Casey (1990) 170 CLR 534
1 citation
Jump To
Cite 1 - (1990) 170 CLR 534
Manly Wharf Pty Ltd v Manly Council (1997) 98 LGERA 245
3 citations
Jump To
Cite 1 - (1997) 98 LGERA 245
Cite 2 - (1997) 98 LGERA 245
Cite 3 - (1997) 98 LGERA 245
New South Wales Crime Commission v Vu [2009] NSWCA 349
2 citations
Jump To
Cite 1 - [2009] NSWCA 349
Cite 2 - [2009] NSWCA 349
One Tel. Limited v The Commissioner of Taxation (2000) 101 FCR 548
2 citations
Jump To
Cite 1 - (2000) 101 FCR 548
Cite 2 - (2000) 101 FCR 548
Oshlack v Richmond River Council (1998) 193 CLR 72
1 citation
Jump To
Cite 1 - (1998) 193 CLR 72
Subramaniam v Public Prosecutor [1956] 1 WLR 965
1 citation
Jump To
Cite 1 - [1956] 1 WLR 965

Cases Citing

Case NameFull CitationFrequency
Spry v Brisbane City Council (No 2) [2017] QPEC 211 citation
1

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