Steendyk v Brisbane City Council (No 2)
[2016] QPEC 51
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Steendyk v Brisbane City Council (No 2)[2016] QPEC 51
- Add to List
Steendyk v Brisbane City Council (No 2)[2016] QPEC 51
Steendyk v Brisbane City Council (No 2)[2016] QPEC 51
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Steendyk v Brisbane City Council & Ors (No. 2) [2016] QPEC 51 |
PARTIES: | BRIAN STEENDYK Applicant v BRISBANE CITY COUNCIL First Respondent & ELLEN AND KEVIN CALDER-POTTS Second Respondents |
FILE NO/S: | 3982/15 |
DIVISION: | Planning and Environment Court |
PROCEEDING: | Applications for costs of the proceeding |
DELIVERED ON: | 18 October 2016 |
DELIVERED AT: | Brisbane |
HEARING DATE: | On the papers, following judgment delivered on 16 September 2016. |
JUDGE: | Bowskill QC DCJ |
ORDER: | The applicant pay the second respondents 75% of their costs of the proceeding (excluding the costs of the day of the hearing on 1 July 2016), to be assessed on the standard basis, if not agreed |
CATCHWORDS: | PLANNING AND ENVIRONMENT – Costs |
COUNSEL: | K Wylie for the Applicant (direct brief) N Kefford for the First Respondent R Laidely for the Second Respondents |
SOLICITORS: | Brisbane City Legal Practice for the First Respondent McCarthy Durie Lawyers for the Second Respondents |
- [1]On 16 September 2016 I delivered my reasons for refusing the originating application brought by Mr Steendyk: Steendyk v Brisbane City Council & Ors [2016] QPEC 47.
- [2]Mr and Mrs Calder-Potts have applied for an order that Mr Steendyk pay their costs of the proceeding, on the indemnity basis, fixed in the amount of $53,000.
- [3]Mr Steendyk has applied for an order that the Calder-Potts pay his costs thrown away as a result of the adjournment of the hearing on 1 July 2016, and of the summary judgment application heard on 8 August 2016, on the standard basis.
- [4]The Council seeks no order for costs.
- [5]The power of the court to make an order for costs is conferred by s 457(1) of the Sustainable Planning Act 2009 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.”
- [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.
- [7]Some of the matters the court may have regard to in exercising the discretion under s 457(1) are set out in s 457(2).
- [8]One of those matters is the relative success of the parties (s 457(2)(a)). The Calder-Potts have been wholly successful in opposing the relief that Mr Steendyk sought by his application. While the success of a party is not a determinative factor it is clearly a relevant and, in some cases, significant consideration.[1]
- [9]I regard it as of particular significance in this case, because both Mr Steendyk and Mr and Mrs Calder-Potts are private citizens, and the subject matter of the proceeding concerned the agitation by Mr Steendyk of what he perceived to be the impact on his right(s) of development approvals, and changes to such approvals, relating to the Calder-Potts’ home. The burden of legal costs to people in these circumstances are significant; less easily borne and absorbed than may be the case with a government or commercial entity. Mr Steendyk of course chose to pursue this path, as he is entitled to do. The Calder-Potts did not elect to participate – they had no choice, in order to protect their interests, in respect of their home, including to defend themselves against the allegation that they had committed a development offence.
- [10]Another factor is whether a party commenced the proceeding without reasonable prospects of success (s 457(2)(d)). For the Calder-Potts it is submitted this applies to Mr Steendyk, when the matter is looked at as a whole. In Altitude Corporation Pty Ltd v Isaac Regional Council (No 2) [2015] QPELR 139 at [25] Rackemann DCJ said that a case is without reasonable prospects of success “if it is so lacking in merit or substance as to be not fairly arguable”.[2] I do not think that can necessarily be said about Mr Steendyk’s application, as a whole. Although I formed a strong view, both on the substantive issues, and on the discretionary considerations, unfavourable to his application; they were matters requiring fairly detailed argument, and consideration, in order to determine them.
- [11]But this does not necessarily protect a party from an adverse costs order. As is frequently observed, 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.[3] In this context, “indemnify” is not to be taken as suggesting indemnity costs can be expected.
- [12]Another matter is 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 (s 457(2)(g)). In an appropriate case this may weigh against a costs order being made; but this is not such a case. The orders Mr Steendyk sought were concerned with his own personal interests, not the broader public interest.
- [13]The summary judgment application – as is apparent from Mr Steendyk’s costs application – is a complicating feature. As discussed in [126] of the reasons, I do not consider that was a procedurally appropriate way to deal with the proceedings, even though, in the end, I accepted the argument made by both the Calder-Potts and the Council that, even if a different view had been taken on the substantive issues, the relief Mr Steendyk sought would not have been granted, on discretionary grounds. As is apparent from the reasons, however, the discretionary factors that led me to that conclusion were broader than those which could be agitated on the summary judgment application.
- [14]There are two issues to deal with, in this regard: first, the costs of the adjournment of the hearing on 1 July 2016 and, second, the costs of the summary judgment application itself.
- [15]Firstly, in terms of what should be done about the costs “thrown away” by the adjournment of the hearing on 1 July 2016. A brief outline of what took place on 1 July 2016 is set out in [121] of the reasons. Reading the transcript of that day, it is not a straightforward matter of concluding that, due to the oral application for summary dismissal, made on behalf of the Calder-Potts, the proceeding was adjourned, in circumstances where otherwise it would have gone ahead and been completed on that day. That ignores the issue first raised by the Judge about whether the matter could be dealt with in one day, and the subsequent discussion about various other issues, including particularisation sought by the Council of the development offence alleged to have been committed, and the question of the utility of the other declarations sought, absent consequential relief – all of which took the parties until just after 12.30pm, at which point it was clear the hearing could not proceed, and even if it did, would not finish that day. Judge Searles described it as an “inflated directions hearing”. His Honour initially proposed there be no costs order, but at the request of counsel for Mr Steendyk, reserved the costs.
- [16]On balance, in so far as the 1 July 2016 hearing is concerned, I do not propose to order that Mr and Mrs Calder-Potts pay Mr Steendyk’s costs of that day, but do propose to reflect the costs to some extent by a reduction in what may be recovered by the Calder-Potts.
- [17]Secondly, in relation to the summary judgment application. As I have said, my view is that that was not an appropriate procedure to adopt. It artificially constrained the scope of the discretionary considerations. In light of the conclusions which I reached about some of the discretionary factors relied on in seeking summary judgment, if that application had proceeded to be dealt with in isolation, it may well have been refused; and the parties would have had to return at a later stage to deal with the substantive application. I commend the parties for agreeing, after the hearing on 8 August, to the whole of the matter being dealt with, as this undoubtedly led to a quicker, and less costly outcome, in the end.
- [18]It is fair to say that the summary judgment application would have increased the costs of the parties to some extent. But in dealing with the whole proceeding, which I ultimately did, the submissions made on 8 August (as to discretionary considerations) were a substantive part of dealing with the whole application; they were not repeated on 18 August, when the focus was on the substantive part of Mr Steendyk’s application. So, taken together, the hearings on 8 and 18 August were all part of dealing with the whole proceeding. Realistically, given the hours the court sat on each of those days (from 10am to 1.20pm on 8 August; and from 9am (starting with the site inspection) until 1.53pm on 18 August), the matter would not have been dealt with in one sitting day (as Judge Searles predicted). It would have gone into a second day. So to this extent, the costs were not unreasonably increased.
- [19]In terms of the documents filed after 1 July, I do not think any significant part of the work that was done in preparation for the summary judgment application can be said to have been “wasted”. One of those documents was the particulars of the originating application, requested by the Council. In addition, each party filed additional submissions for the purposes of the summary judgment application. Because the focus of the summary judgment application was on discretionary considerations, the submissions filed in court on 8 August dealt in more detail with those matters (than the earlier submissions of the parties, filed on 1 July). But those submissions remained relevant to a determination of the whole of the application. Further, I note that it was foreshadowed, on 1 July, before it was apparent the hearing would not proceed, that further submissions would be made after the hearing. In the way in which the proceeding ultimately came to be dealt with, those “further submissions” were, in a practical sense, captured by the summary judgment submissions, and the further submissions that Mr Steendyk and the Council chose to file on 18 August.
- [20]It is fair and reasonable, in my view, to reflect the fact that some additional costs would have been incurred, because of the summary judgment application, which would not otherwise have been incurred, by applying a global reduction to the costs recovered by Mr and Mrs Calder-Potts. On that basis, and including some component of reduction for the 1 July 2016 adjourned hearing, I propose a reduction of 25%.
- [21]In support of their costs application, and that any costs awarded to them be on the indemnity basis, the Calder-Potts also rely on an offer made by them in December 2015, relying on the principles in Calderbank v Calderbank [1975] 3 All ER 333; as well as an offer made after my reasons were delivered to resolve the issue of costs.
- [22]As to that last matter, the making of an offer after the reasons for judgment were delivered, all I take from that is that the costs awarded ought to include the costs of these costs applications.
- [23]In relation to the Calderbank offer made in December 2015, it has previously been observed that because the applicable costs regime, under s 457 of the Planning Act, is not one where there is a presumption in favour of costs following the event, the fact that a party might ultimately do as well or better than a Calderbank offer does not, of itself, lead to the conclusion that a costs order should be made;[4] nor, I would add, if any costs order is to be made, that it ought to be on an indemnity basis.
- [24]The procedural chronology of this proceeding reveals that it was initially commenced in October 2015. In accordance with court directions made shortly after that, the parties participated in a without prejudice conference on 2 December 2015. On 8 December 2015 Mr Bell (a town planner, who was then acting as the agent for Mr Steendyk) made an offer to resolve the proceedings, on a basis involving limited compromise on his part (because it required fixed privacy screening to be installed along the full length of the north-western elevation of the Calder-Potts’ verandah). The solicitor for Mr and Mrs Calder-Potts responded, by email sent at 5.18pm on 8 December 2015, rejecting that and making an offer to settle the proceedings on the basis that Mr Steendyk file a notice of discontinuance by 4pm on 10 December 2015, with Mr and Mrs Calder-Potts bearing their own costs incurred to that time. The offer was expressly only open for acceptance up until 4pm on 10 December 2015.
- [25]Keeping in mind the caution referred to in paragraph [23] above, it is nevertheless appropriate to address the principles that apply to a Calderbank offer – in the context of a hearing at first instance – which were considered in J & D Rigging Pty Ltd v Agripower Australia (No 2) [2014] QCA 23, where the Court (Holmes JA (as her Honour then was), Applegarth and Boddice JJ) said:
“[5] The failure to accept a Calderbank offer is a matter to which a court should have regard when considering whether to order indemnity costs. The refusal of an offer to compromise does not warrant the exercise of the discretion to award indemnity costs. The critical question is whether the rejection of the offer was unreasonable in the circumstances. The party seeking costs on an indemnity basis must show that the party acted ‘unreasonably or imprudently’ in not accepting the Calderbank offer.
[6] In Hazeldene Chicken Farm Pty Ltd v Victorian WorkCover Authority (No. 2),[5] the Victorian Court of Appeal stated that a court considering a submission that the rejection of a Calderbank offer was unreasonable should ordinarily have regard to at least the following matters:
- (a)the stage of the proceeding at which the offer was received;
- (b)the time allowed to the offeree to consider the offer;
- (c)the extent of the compromise offered;
- (d)the offeree’s prospects of success, assessed as at the date of the offer;
- (e)the clarity with which the terms of the offer were expressed;
- (f)whether the offer foreshadowed an application for an indemnity costs in the event of the offeree’s rejecting it.”[6]
- [26]As at 8 December 2015, when the offer was made, no substantive steps had been taken in the proceeding (other than the mediation conference), no material or submissions had yet been filed. A very short time was allowed to consider the offer (less than 2 days). The terms of the offer were, however, clear, and an application for indemnity costs expressly foreshadowed. The extent of the compromise was, on its face, limited; but given the nature of the relief sought by Mr Steendyk, perhaps unsurprising (that is, there was not really a middle ground).
- [27]In my view, particularly given the stage at which this offer was made, and the very short time it was open, I do not consider it could fairly be said the effective rejection of it was unreasonable, such as to justify an order that the costs which will now be ordered to be paid by Mr Steendyk be assessed on the indemnity basis.
- [28]I am satisfied, for the purposes of s 457(1), that it is appropriate to order that Mr Steendyk pay Mr and Mrs Calder-Potts most of their costs of the proceeding, in which they have been wholly successful. The way I propose to address the issues discussed above regarding the 1 July 2016 hearing, and the summary judgment application, is to reduce the costs awarded to the Calder-Potts by 25%, and not to include any costs of the hearing on 1 July 2016.
- [29]So the order will be that the applicant (Mr Steendyk) pay the second respondents (Mr and Mrs Calder-Potts) 75% of their costs of the proceeding (excluding the costs of the day of the hearing on 1 July 2016), to be assessed on the standard basis, if not agreed.
Footnotes
[1] YFG Shopping Centres Pty Ltd v Brisbane City Council (No 2) [2015] QPELR 8 at [17]; Altitude Corporation Pty Ltd v Isaac Regional Council (No 2) [2015] QPELR 139 at [4].
[2] Referring, inter alia, to Keddie v Stacks (2012) 293 ALR 764 (see at [58]-[59]).
[3] 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].
[4] YFG Shopping Centres Pty Ltd v Fabcot Pty Ltd (No 3) [2015] QPELR 149 at [25] per Jones DCJ; Altitude Corporation Pty Ltd v Isaac Regional Council (No 2) [2015] QPELR 139 at [29] per Rackemann DCJ.
[5] [2005] 13 VR 435 at 442 [25].
[6] Referred to also in Bulsey & Anor v State of Queensland [2016] QCA 158 at [74].