Swan v Santos GLNG Pty Ltd (No 2)
[2017] QPEC 17
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- Unreported Judgment
- Appeal Determined (QCA)
- Swan v Santos GLNG Pty Ltd (No 2)[2017] QPEC 17
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Swan v Santos GLNG Pty Ltd (No 2)[2017] QPEC 17
Swan v Santos GLNG Pty Ltd (No 2)[2017] QPEC 17
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Swan v Santos GLNG Pty Ltd & Ors (No 2) [2017] QPEC 17 |
PARTIES: | STEPHEN JOHN SWAN v SANTOS GLNG PTY LTD ACN 131 271 648 (first respondent) and PAPL DOWNSTREAM PTY LTD ACN 147 649 205 and TOTAL GLNG AUSTRALIA ACN 146 680 524 (third respondent) and THE CHIEF EXECUTIVE ADMINISTERING THE ENVIRONMENTAL PROTECTION ACT 1994 (fourth respondent) |
FILE NO/S: | D80 of 2015 |
DIVISION: | Planning & Environment Court |
PROCEEDING: | Application for costs |
ORIGINATING COURT: | Planning & Environment Court, Maroochydore |
DELIVERED ON: | 24.03.2017 |
DELIVERED AT: | Planning & Environment Court, Maroochydore |
HEARING DATE: | On the papers. Submissions received until 16.2.17 |
JUDGE: | Robertson DCJ |
ORDER: | The applicant pay the costs of the proceeding of the first, second and third respondents, to be assessed on the standard basis or as agreed. |
CATCHWORDS: | COSTS - PLANNING – ENVIRONMENT: where applicant wholly unsuccessful in application for orders pursuant to s 505 of the Environmental Protection Act 1994; whether applicant had any reasonable prospects of successfully obtaining such orders; where applicant had failed to properly particularise or relate evidence to alleged breaches of Environmental Authorities, whether applicant had obstructed or delayed or acted unreasonably in the proceeding. Legislation Environmental Protection Act 1994 ss 430, 431, 505 Sustainable Planning Act 2009 s 457 Cases Cox & Ors v Brisbane City Council & Anor (No 2) [2014] QPELR 92 LMRM Pty Ltd v Brisbane City Council [2017] QPEC 7 Caloundra City Council v McCreath [1998] QPELR 179 |
COUNSEL: | R Litster QC of Counsel for the Applicant J Horton QC and DM Favell of Counsel for the Respondent |
SOLICITORS: | P&E Law for the Applicant Carter Newell for the 1st, 2nd and 3rd Respondents Department of Environment and Heritage Protection for the Fourth Respondent |
- [1]On 3 February 2017, I dismissed Mr Swan’s application for reasons published that day. The parties have each provided written submissions on the issue of costs.
- [2]Santos seeks an order that Mr Swan pay their costs of and incidental to the proceeding to be assessed on the standard basis, if not agreed. Mr Swan submits that there should be no order as to costs.
- [3]The court has a general discretion with respect to costs.[1] The discretion is broad, but should be exercised judicially. There is no presumption that costs should ordinarily follow the event, nor that parties have some qualified privilege against an adverse costs order. Section 457(2) sets out a non-exhaustive list of matters to which the court may have regard.[2] It is common ground that the discretion to order costs of a “proceeding” in s 457(1) extends to a proceeding such as this pursuant to s 505 of the Environmental Protection Act 1994.[3]
- [4]In its costs submissions Santos focuses on s 457(2)(a), (c), (d), (i) and (l):
“(2) In making an order for costs, the court may have regard to any of the following matters—
- (a)the relative success of the parties in the proceeding;
…
- (c)whether a party commenced or participated in the proceeding for an improper purpose;
- (d)whether a party commenced or participated in the proceeding without reasonable prospects of success;
…
- (h)(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;”
Discussion
Section 457(2)(a)
- [5]At the heart of Mr Swan’s application were serious allegations that Santos had breached conditions of various Environmental Authorities which it held over his land, and had therefore committed criminal offences pursuant to either ss 430 and/or 431 of the Environmental Protection Act 1994 (the EPA). In this he was entirely unsuccessful.[4] My conclusions did not follow from credibility findings against Mr Swan or his witnesses; rather they followed from construing the environmental authority conditions, and concluding that Mr Swan had not satisfied the onus placed on him to satisfy the court that Santos had breached any of the conditions.[5] His application failed, despite there being any real challenge to his evidence of what had occurred along the RoW,[6] during and post construction of the pipeline.
Section 457(2)(c)
- [6]It was never directly suggested to Mr Swan that his purpose in commencing and/or participating in the proceeding was for an improper purpose, e.g. to force Santos to pay him compensation when none was due. As my reasons disclosed, he was not aware of the Environmental Authorities until after the pipeline was constructed over his land. It was not suggested that he continued with these proceedings after the Meridian Interconnector proceedings were compromised, for some improper purpose. This is not a factor that bears upon the exercise of the discretion in the circumstances of this case.
Section 457(2)(d)
- [7]As my reasons disclose, Mr Swan never came to grips with what he had to prove; and he resisted a number of attempts, both by his opponent and myself, to properly particularise his case pursuant to s 505(5) of the EPA. On 22 April 2016, Santos’s application to strike out the proceeding on the basis that it disclosed no properly identified cause of action was heard, and ultimately it was put off to the trial when all the evidence could be tested. On 18 May 2016, I ordered Mr Swan deliver to Santos his list of issues which he contended were actionable under s 505, and still affecting his land.
- [8]The list was delivered on 31 May 2016. As I noted in my reasons, the list did not identify, by reference to any offence under the Act, the section or sections relied upon by Mr Swan.[7] I made it very clear to Mr Swan’s Counsel on 17 June 2016 (the fifth day of the trial) that I regarded this issue as a “threshold” question.[8] It was not until his outline, delivered 17 August 2016, that Mr Litster QC made any real attempt to particularise offences by reference to either ss 430 or 431 of the EPA.[9]
- [9]Ultimately, Mr Swan’s position seemed to be that the court could ultimately rely on the “catch-all” order 4 sought in the prayer for relief, in effect leaving it to me (in the absence of proper particularisation) to decide if the evidence was sufficient to ground proof of alleged breaches of the EAs.
- [10]The reasons establish that Mr Swan never did properly particularise his case;[10] the principal orders sought in 2 and 3 of his AOA impermissibly sought to have the court concede jurisdiction to a lay person.[11] He never did properly consider how the various conditions of the EAs should be construed as a matter of law having regard to s 505(5) of the EPA; he persisted with the trial even after Mr Sutherland had undertaken the works subsequent to the 12.11.15 order, with the results referred to in detail in my reasons; and even taking the evidence put on by him at its highest, it did not establish any breach of the EAs. In combination, these matters lead me to conclude that Mr Swan never did have any reasonable prospects of succeeding in the proceeding.
- [11]Mr Swan’s costs submission,[12] simply fails to come to grips with these matters. The court never did rule against the no case submission as Mr Litster suggests. It was deferred and put off to the trial which, by then, was less than seven weeks away. Santos did not insist that I make a ruling on its no case submission, and Mr Swan overlooks the fact that it was his proceeding and, as I determined, he continued with it in the face of insurmountable legal obstacles. That Mr Sutherland found inadequacies in the RoW is not to the point. Mr Swan’s case was that Santos had breached its EAs, which he completely failed to establish. Again, when Mr Litster refers on a number of occasions to a “legitimate contest between experts”, he misses the point that, for the legal reasons identified in the reasons, his client never did have any reasonable prospects of success.
Section 457(2)(i)
- [12]As I understand Santos’s submission on this discrete provision, it essentially relies upon its arguments advanced in relation to s 457(2)(a), (c) and (d). Once again, Mr Litster’s submissions, based on alleged failures by Santos to rehabilitate his client’s land prior to the commencement of these proceedings, is of no relevance, when one has regard to the nature of the relief sought in, and the ultimate fate of, the AOA.
Section 457(2)(l)
- [13]I do not think this provision is engaged in the circumstances of this case.
- [14]Mr Litster refers to s 505(10) of the EPA which provides that the court “must order a plaintiff to pay costs if the Court is satisfied the proceeding was brought for obstruction or delay”.
- [15]Certainly Santos submits that Mr Swan was obstructive and unreasonable in his conduct of the proceedings which I took to be a reference to s 457(2)(i) of the SPA, and not s 505(10) of the EPA. I do not agree that paragraphs [68] and [101] of my reasons amount to a conclusion that Mr Swan was acting unreasonably in the conduct of the proceeding, and it is certainly not supportive of any conclusion that the proceeding was brought for obstruction or delay. Santos does not refer to s 505(10) in its costs submission and it does not arise in this case.
Conclusion
- [16]For the reasons set out above, particularly in relation to s 457(2)(a) and (d), I order that the applicant pay the costs of the first, second and third respondents of and incidental to the proceeding to be assessed on the standard basis, if not agreed.
Footnotes
[1] Section 457 of the Sustainable Planning Act 2009 (the SPA).
[2] Cox & Ors v Brisbane City Council & Anor (No 2) [2014] QPELR 92; LMRM Pty Ltd v Brisbane City Council [2017] QPEC 7 at [2].
[3] See by analogy Caloundra City Council v McCreath [1998] QPELR 179.
[4] See [141]-[176] of reasons for judgment (RJ).
[5] Section 505(5) of the EPA.
[6] Pipeline Right of Way easement over his properties.
[7] See RJ [30] and [121].
[8] See RJ [31].
[9] See RJ [122]-[123].
[10] RJ [135].
[11] RJ [132].
[12] 16 February 2017, [34]-[40].