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Gold Coast City Council v Adrian's Metal Management Pty Ltd (No. 3)[2019] QPEC 39

Gold Coast City Council v Adrian's Metal Management Pty Ltd (No. 3)[2019] QPEC 39

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Gold Coast City Council v Adrian’s Metal Management Pty Ltd & Ors (No.3) [2019] QPEC 39

PARTIES:

GOLD COAST CITY COUNCIL
(Applicant/Respondent)

v

ADRIAN’S METAL MANAGEMENT PTY LTD (ACN 616 177 050)
(First Respondent/Applicant)

and

SARAH MONIQUE GARABED
(Second Respondent/Applicant)

and

CHRIS FULLER INVESTMENTS PTY LTD (ACN 603 284 920)
(Third Respondent/Applicant)

FILE NO:

2429/17, 1235/19

DIVISION:

Planning and Environment

PROCEEDING:

Contempt – and hearing of application and cross application

ORIGINATING COURT:

Planning and Environment Court of Queensland, Brisbane

DELIVERED ON:

20 August 2019

DELIVERED AT:

Brisbane

HEARING DATE:

23 July 2019

JUDGE:

RS Jones DCJ

ORDER:

1. Subject to the matters raised in paragraph 34 herein, the first and second respondents are to pay 50% of the Gold Coast City Council’s costs of their application in pending proceeding filed 18 February 2019 up to 18 July 2019.

2. Such costs to be agreed or, failing agreement, to be assessed on the standard basis.

CATCHWORDS:

CONTEMPT – where first and second respondents pleaded guilty to contempt – where contempt constituted by flagrant breach of orders of the court – where first and second respondent fine for contempt

APPLICATION – where respondents sought variation of orders made by this court on 7 November 2018

APPLICATION – where Gold Coast City Council seeks its costs of the proceedings other than contempt proceedings – where respondents ordered to pay 50% of the Council’s costs of the contempt proceedings.

Legislation

Environmental Protection Act 1994

Planning and Environment Court Act 2016

Planning Act 2016

Uniform Civil Procedure Rules 1999

Cases

Adrian’s Metal Management v Gold Coast City Council [2018] QPEC 11

Gold Coast City Council v Adrian’s Metal Management Pty Ltd & Ors (No. 2) [2019] QPEC 2

Gold Coast City Council v Adrian’s Metal Management Pty Ltd & Ors [2018] QPEC 45

Oshlack v Richmond River Council (1998) 193 CLR 72

COUNSEL:

K Wylie for the Gold Coast City Council
B Rix for the Respondents

SOLICITORS:

McCullough Robertson Lawyers for the Gold Coast City Council
Thomson Geer Lawyers for the respondents

  1. [1]
    This proceeding is concerned with an application for costs made on behalf of the Gold Coast City Council (the Council). For the reasons given, the orders of the court are:
  1. Subject to the matters raised in paragraph 34 herein, the first and second respondents are to pay 50% of the Gold Coast City Council’s costs of their application in pending proceeding filed 18 February 2019 up to 18 July 2019.
  1. Such costs to be agreed or, failing agreement, to be assessed on the standard basis.

Background

  1. [2]
    It would not be unreasonable to say that the litigation between the Council and Adrian’s Metal Management Pty Ltd (Adrian’s Metal), Sarah Monique Garabed (Ms Garabed) and Chris Fuller Investments Pty Ltd (Chris Fuller) has had a somewhat chequered past.
  1. [3]
    By way of a very brief summary, the circumstances leading up to the substantive proceeding were as follows. Chris Fuller is the registered proprietor of land located at Molendiner, a suburb to the east of the Pacific Highway and to the west of Southport. The land is located in an industrial area zoned Low Impact Industry. To the west and elevated above, it is a group title residential development known as the “Pepper Hill Estate”.  Ms Garabed is a director of Adrian’s Metal.  Adrian’s Metal carried out a number of activities on the land which could be broadly described as involving the recycling of motor vehicle parts including motor vehicle bodies.  A particularly significant aspect of those activities on the land was the use of an excavator to crush car bodies.  As was identified in my reasons in the substantive proceedings,[1] the nature and extent of the activities carried out on the land expanded over time.
  1. [4]
    As a consequence of complaints about what was occurring on the land, and in particular, noise, the Council eventually commenced proceedings against all three respondents. In reality though, it was only Adrian’s Metal and Ms Garabed as the sole director of that company who were the substantive actors in the proceedings. The initial relief sought by the Council was pursuant to the Planning and Environment Court Act 2016 (PECA), the Environmental Protection Act 1994 (EPA) and the Planning Act 2016.  The relief sought involved a number of declarations and consequential orders. 
  1. [5]
    On 1 March 2018, Mr Wylie appeared for the Council and Ms Garabed appeared on behalf of herself and both respondents. After hearing from the parties, I delivered reasons ex tempore[2] including an interim enforcement order pursuant to s 180(4) of the Planning Act 2016.  That order relevantly provided:

“The Respondents must ensure that noise from operation of any excavators and associated metal handling activities on the Site, measured as the LAeq,adj,T, must not exceed the ambient background noise level, measured as the LA90,T, by more than 5 dB(A) … at any noise sensitive place.”

  1. [6]
    After a hearing which occupied five days in this court, on 7 November 2018, various declarations and orders were made in favour of the Council. Of particular significance, it was ordered:

Upon the court being satisfied that a development offence has been committed, namely a contravention of s 165(a) of the Planning Act, it is ordered that:

  1. Pursuant to s 180(2) of the Planning Act, by 28 January 2019:
  1. (a)
    the First Respondent must cease operating the motor vehicle and metal recycling business being conducted on the land; and
  1. (b)
    the Second Respondent must ensure that the First Respondent, and any other corporation for which she is an executive officer (as that term is defined in the Planning Act) that is carrying out the said use of the land, ceases such use.
  1. The orders set out in paragraph 1 will cease to have any operation and effect upon:
  1. (a)
    issue of a development permit concerning the Land authorising the carrying out of a material change of use for medium impact industry (scrap metal yard) and Environmentally Relevant Activity 20 (metal recovery); and
  1. (b)
    any motor vehicle and metal recycling business carried out on the Land been conducted in compliance with the development permit, including any conditions attaching to that permit. 

Upon the court being satisfied that the First Respondent’s use of the land is unlawfully causing an environmental nuisance for the purposes of s 440(2) of the EPA, it is further ordered that:

  1. Pursuant to s 505(5) of the EPA:
  1. (a)
    the First Respondent must ensure that:
  1. (i)
    it does not cause any noise from operation of any excavators and associated metal handing activities on the land….must not exceed the ambient background noise level measured…at any noise sensitive place…(Noise Complaint Limit); and
  1. (ii)
    it does not otherwise commit an offence under s 440(2) of the EPA, namely, causing an unlawful environmental nuisance; and
  1. (b)
    the Second Respondent must ensure that she, the First Respondent and any other corporation for which she is an executive officer….
  1. (i)
    does not permit the operation of any excavators and associated metal handling activities on the land to exceed the Noise Compliance Limit; and
  1. (ii)
    does not otherwise commit an offence under s 440(2) of the EPA Act, mainly, causing an unlawful environmental nuisance.”
  1. [7]
    The Council sought its costs of that proceeding and, on 16 January 2019 the court ordered as follows:[3]

“1. The first and second respondents are to pay the applicant’s costs of the enforcement proceedings on the standard basis.

  1. Such costs are not to include any of the costs associated with the application to join Mr Yarwood as a party to the proceeding.” (Emphasis added)
  1. [8]
    At the enforcement proceedings, the respondents were represented by a Mr Yarwood, who not only represented the respondents before this court, but also in negotiations with the Council.  In this context, he held himself out as a “commercialist and the principal of the business consultancy firm registered as Michael Yarwood Management”.  In my reasons dealing with an application for indemnity costs, I made a number of observations concerning the role Mr Yarwood played.  His involvement was described as “fluid”.[4]  I said in this regard: 

“While I have some sympathy for the applicant’s case for indemnity costs, I am not prepared to make such orders.  It seems to me that the first and second respondents were, to a very significant extent, acting on the advice of Mr Yarwood.  During the course of the proceedings, Ms Garabed appeared to be a practical and intelligent woman, save for the fact that she seemed to be proceeding on the basis that Mr Yarwood knew how best to conduct the case on behalf of the respondents.  That was a grave mistake on her part.  Mr Yarwood’s performance at the Bar table was far from impressive and, in my view, at times involved conduct that could only be described as concerning.” 

  1. [9]
    When this matter came back before me on 23 July 2019, there were in effect, three matters which were to be determined. The first was the contempt proceedings brought by the Council against Ms Garabed and Adrian’s Metal, including an application for costs. Second, an application brought on behalf of Ms Garabed and Adrian’s Metal to have the orders made on 7 November 2018 varied.  Third, an application for costs brought by the Council in respect of that application. 

The contempt proceedings

  1. [10]
    There was no room for any reasonable doubt that Adrian’s Metal and Ms Garabed were in substantive breach of the orders made by the court on 7 November 2018. No doubt on legal advice, Ms Garabed in her own right and on behalf of Adrian’s Metal as the sole director of that company, pleaded guilty to the charges. As a consequence, for reasons given on that day, Ms Garabed was fined $5,000 with time to pay and Adrian’s Metal fined $10,000 with time to pay. It was uncontroversial that those respondents should pay the Council’s costs associated with the contempt proceeding.

The application to vary the substantive orders

  1. [11]
    After hearing from the parties, on 23 July 2019, for reasons it is not necessary to go into here, the orders made pursuant to the EPA remained as originally stated. However, in respect of those orders made pursuant to the Planning Act 2016, upon the first and second respondents both giving specific undertakings to the court, they were varied as follows: 
  1. Pursuant to s 181(4) of the Planning Act 2016, paragraph 1 of the enforcement order made… 7 November 2018 is changed, such that: 
  1. (a)
    The date upon which on-site business and uses must cease prescribed in paragraph 1 be changed to 25 October 2019; and
  1. (b)
    If a development permit is granted with respect to the Development Application with the Applicant’s Reference Number MCU/2019/89 on or before 25 October 2019 (Development Approval), and the decision to give that approval is not appealed, then the date prescribed in sub-paragraph (a) above be further enlarged to 25 February 2020, subject to:
  1. (i)
    Compliance with any conditions of the Development Approval that do not require the undertaking of works; and
  1. (ii)
    The first and second respondents taking all necessary and reasonable steps to undertake all necessary works to ensure compliance with any conditions of the Development Approval. 
  1. Paragraph 2 of the order… dated 7 November 2018 is varied so that the reference to a development permit is a reference to a development permit granted with respect to the Development Application…

The Council’s application for further orders as to costs

  1. [12]
    As a consequence of the completion of the contempt proceeding and the application to vary the substantive orders being resolved, the only matter left was the question of the costs associated with the respondent’s application to vary the orders. The Council’s position was that the first and second respondents were to pay its costs of and incidental to that application on the standard basis up to and including 18 July 2019. It was submitted on behalf of both Ms Garabed and Adrian’s Metal that each party should bear their own costs.
  1. [13]
    Before proceeding further, I should clarify why the Council contends for costs up to 18 July 2019. The application to vary the substantive orders was filed on 18 February 2019, which of course post-dated the date for compliance with those orders. That application was supported by an affidavit from a town planner which, among other things, indicated that he was instructed to prepare a development application. On 8 March 2019, a development application was in fact lodged on behalf of Adrian’s Metal.  Following consideration, the Council determined that there were still a number of substantive matters that had to be determined.  According to the town planner retained by the Council, the application was “fundamentally deficient”.  As a consequence, on 18 April 2019, an information request was issued.  On 14 June 2019, Adrian’s Metal filed affidavit material indicating, among other things, an intention to move parts of the business to another site. 
  1. [14]
    Following further investigations by the Council, it was determined that that proposal would not be a solution at all, and, in fact, might have led to a number of other serious consequences including committing further development offences. A response to the Council’s information request was provided on behalf of Adrian’s Metal on 18 July 2019. According to the Council:[5] 

“It was not until this information request response was received on 18 July 2019 that Council had any real confidence that ultimate (and lawful) regularisation of the site could be achieved, which is what drove Council’s change of position in this proceeding.” 

  1. [15]
    During oral submissions Mr Wylie submitted, to use his words, it was not until that date that “the complete picture was received”.[6]  Not surprisingly, the Council has provided material which reveals that it had incurred costs associated with assessing the original development application and the proposed moving of part of the activities being carried out on the subject land to another site. 

Discussion

  1. [16]
    There can be little doubt that Adrian’s Metal had incurred significant costs associated with the legal proceedings to date and with trying to regularise its operations on the subject land. In one of her affidavits, Ms Garabed deposed to the effect that the respondents had suffered what she described as a material financial impact as a result of “these proceedings”.  She went on to say that in the financial year of 2018/19 the loss of “the respondents” was in the order of $340,000.  In addition, there were outstanding liabilities to both the Australian Taxation Office and to the Council.  Insofar as the Council is concerned, those liabilities included the costs orders associated with both the substantive proceedings and the contempt proceedings.  That evidence of Ms Garabed was unchallenged.  In addition to those liabilities identified by Ms Garabed, she and Adrian’s Metal are now also liable to pay fines totalling $15,000. 
  1. [17]
    The substantial causes of those financial difficulties are: First, and most significantly, the history of brazen unlawful conduct on the part of, in particular, Adrian’s Metal. Second, of less significance but yet clearly a material contributing factor, was the ill-informed reliance placed on Mr Yarwood by the respondents to act in their interests.
  1. [18]
    Sections 59, 60 and 61 of the PECA relevantly provide:

58 Definitions for part

In this part—

costs

  1. (a)
    for a P&E Court proceeding of the following type, includes a party’s costs to investigate, or gather evidence for, the proceeding that the P&E Court decides the party reasonably incurred—
  1. (i)
    a declaratory proceeding about the lawfulness of land use or development under the Planning Act, including any order under section 11(4);
  1. (ii)
    an enforcement notice appeal;
  1. (iii)
    an enforcement proceeding; and
  1. (b)
    for an enforcement notice appeal, also includes costs relating to investigations or gathering of evidence for the giving of the relevant enforcement notice.

enforcement notice appeal means an appeal against the giving of an enforcement notice under the Planning Act.

enforcement proceeding means a proceeding for an enforcement order or interim enforcement order under the Planning Act.

59 General costs provision

Subject to sections 60 and 61, each party to a P&E Court proceeding must bear the party’s own costs for the proceeding.

60 Orders for costs

  1. (1)
    The P&E Court may make an order for costs for a P&E Court proceeding as it considers appropriate if a party has incurred costs in 1 or more of the following circumstances—
  1. (a)
    the P&E Court considers the proceeding was started or conducted primarily for an improper purpose, including, for example, to delay or obstruct;

  1. (b)
    the P&E Court considers the proceeding to have been frivolous or vexatious;

(c) ….

61 Orders for costs for particular proceedings

  1. (1)
    If, for an enforcement proceeding, the P&E Court makes an enforcement order or interim enforcement order against a person, it may award costs against the person.
  1. (2)
    …”  (Emphasis added)
  1. [19]
    The Council in particular relied on ss 60(1) and 61(1) of the PECA.
  1. [20]
    After referring to the costs associated with having to deal with the respondents troublesome development application[7] and identifying the relevant provisions of the PECA upon which it relied,[8] it was submitted:[9]

“In this instance, the Applicant applies for costs against the Respondents up until 18 July 2019, on two bases:

  1. (a)
    First, pursuant to s 60(1)(b)…on the basis that unless and until the respondents:
  1. (i)
    Acknowledged the requirement to remove the excavator from the premises; and
  1. (ii)
    Provided cogent reasons as to how the on-site operations would be conducted; and
  1. (iii)
    Provided a response to the development application information request….

The Respondents’ proceeding to seek a variation to the enforcement order was frivolous or vexatious, in that it was started and maintained without reasonable prospects of success; and

  1. (b)
    Secondly, pursuant to s 61(1)…on the basis that the Respondents required the indulgence of the court to vary the effect of the order, which was not unreasonably opposed by the Applicant.

Until only very recently, prospects in the Respondents’ application to vary the enforcement orders could only be described as very poor.  In order to maintain Council’s position that, absent bonafide attempts to regularise, the Final Order should be maintained, it was put to sufficient cost in this appeal, and for which a compensatory costs order is submitted appropriate.”

  1. [21]
    The reference to the compensatory nature of cost orders is correct. As was observed by McHugh J in Oshlack v Richmond River Council,[10] after observing that ordinarily in civil litigation costs should follow the event, save perhaps where there was some disentitling conduct, his Honour went on to say:[11]

“… Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party.  If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did.  As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.”

  1. [22]
    It appears to me that what the Council is really seeking, is to be compensated for the costs associated with having to deal with the so called “fundamentally deficient” development application lodged on 8 March 2019 together with the issuing of an information request and the consideration of the response thereto including, but not limited to, identifying the problems associated with the proposed relocation of part of the business being conducted on the subject land.[12] 
  1. [23]
    That the development application as initially lodged was fatally flawed and not made meaningful until an information request had been issued and responded to is not, in my experience, a highly unusual or rare occurrence. In any event, even if that were the case, that is far from determinative in the circumstances of this case. It would have been open to the Council to oppose that application based on the flaws in the development application as it was when lodged on 8 March 2019.  There was no obligation on the Council to issue an information request and then incur costs associated with the response to that request.  That the Council incurred the costs associated with the issuing of the information request and the consideration of the response were costs largely arising from its own initiatives.  It may well have been the case as the Council points out,[13] that any prosecution of the application for variation of the enforcement orders based on the development application as originally drafted might have fell within the frivolous and/or vexatious category.  That, however, is not the situation here.  The Council, quite properly in my view, instead of requiring the respondents to prosecute an application which, almost inevitably, would have been doomed to fail, sought to address the defects and to find a workable solution.
  1. [24]
    There are two further difficulties I have with the Council’s application for costs in this context. First, as Mr Rix pointed out, albeit as a consequence of what had occurred after the Council had issued its information request, Ms Garabed and Adrian’s Metal had a degree of success in its application.
  1. [25]
    In respect of the reliance on s 61, on the material before me, I am not satisfied that the toing and froing between the respondents and the Council[14] would fall within the meaning of investigation costs or, the costs of gathering evidence for the purposes of s 58 of the PECA.  Further, I do not consider that many of the costs associated with what transpired between February and July 2019 could properly be described as costs of a “proceeding”.
  1. [26]
    Pursuant to the PECA,[15] a Planning and Environment Court proceeding means a proceeding, part of a proceeding and an application in a proceeding before that court.  However, the term “proceeding” is not otherwise defined in either the PECA or the Planning Act. As far as I have been able to ascertain, it is not defined in the Uniform Civil Procedure Rules 1999, save insofar as those rules are concerned with offers to settle.  Pursuant to r 352 concerned with offers to settle, a proceeding “means a proceeding started by a claim; or …started by originating application…”.  In the Acts Interpretation Act 1954, a proceeding is defined to mean “a legal or other action or proceeding”.  The most helpful description of what constitutes a proceeding is that in Black’s Law Dictionary,[16] where a “proceeding” is defined to include:

“The regular and orderly progression of a law suit, including all acts and events between the time of commencement and the entry of judgment. …Any procedural means for seeking redress from a tribunal or agency…an act or step that is part of a larger action …the business conducted by a court or other official body; a hearing…”

  1. [27]
    Broadly speaking, in respect of proceedings brought in this court, pursuant to s 59 of the PECA, each party is to bear their own costs. Section 59 is of course subject to ss 60 and 61.
  1. [28]
    As emphasised above, ss 60 and 61 provide for a discretion to award costs but, unlike the situation that often arises in civil/commercial litigation, the starting point is not that ordinarily costs should follow the event.[17] 
  1. [29]
    In any event for the reasons stated, the application at the time it was heard by me, could not be sensibly described as being frivolous or vexatious for the purposes of s 60 of the PECA.
  1. [30]
    For the reasons given, I am also of the view that much of the costs incurred by the Council up to 18 July 2019, could not properly be described as costs of or incidental to enforcement proceedings for the purposes of s 61 of the PECA.
  1. [31]
    By way of summary, the various proceedings and outcomes concerning the respondents can be, broadly speaking, categorised as follows. First, the substantive proceedings including the enforcement orders. The Council was compensated for having to bring those proceedings, as far as cost orders are capable, by way of favourable costs orders. Second, as a consequence of Adrian’s Metal and Ms Garabed breaching the enforcement orders made by this court on 7 November 2018, they were dealt with for contempt. Each pleaded guilty and were fined. Again, cost orders were made in favour of the Council.
  1. [32]
    Finally, it was clearly necessary for the respondents to initiate proceedings to vary the original enforcement orders to facilitate the potential to regularise the uses being made of the land. Given the history of these matters, it was also appropriate for the Council to attend and be heard. This was borne out by the Council successfully resisting the relief sought concerning the order made pursuant to the EPA.
  1. [33]
    Accordingly, the conclusion that I have reached is that the Council is entitled to favourable costs orders pursuant to s 61 of the PECA. In my view, that is the appropriate section, as this proceeding, in essence, is concerned with enforcement proceedings.
  1. [34]
    On balance, I consider that an appropriate order would be that the first and second respondents are to pay 50% of the Council’s costs of their proceedings commenced by way of the application in pending proceeding on the standard basis up to 18 July 2019. If not capable of being agreed, such costs to be assessed. By way of clarification, such costs are limited to the costs of the proceedings commenced by the respondents on 18 February 2019 and do not include those costs associated with the development application including the costs incurred as a consequence of the issuing of the information request by the Council on 18 April 2019.
  1. [35]
    Such an order, in my opinion, is also consistent with the respective levels of success of the parties. In this context it also has to be borne in mind that both the Council’s barrister and instructing solicitor were required to be present on 23 July 2019 to deal with the contempt proceeding. That was able to be disposed of with very little controversy.

Orders

  1. Subject to the matters raised in paragraph 34 herein, the first and second respondents are to pay 50% of the Gold Coast City Council’s costs of their application in pending proceeding filed 18 February 2019 up to 18 July 2019.
  1. Such costs to be agreed or, failing agreement to be assessed on the standard basis.

Footnotes

[1] Gold Coast City Council v Adrian’s Metal Management Pty Ltd & Ors [2018] QPEC 45 at [8] and [9].

[2] Adrian's Metal Management v Gold Coast City Council [2018] QPEC 11.

[3] Gold Coast City Council v Adrian’s Metal Management Pty Ltd & Ors (No. 2) [2019] QPEC 2

[4] Gold Coast City Council v Adrian’s Metal Management Pty Ltd & Ors (No. 2) [2019] QPEC 2, at [44]-[46]. 

[5]  Council’s written submissions, para 10(f). 

[6]  Transcript (T) 1-19 ll 1-3. 

[7]  Council’s written submissions, para 10.

[8]  Ibid, para 11.

[9]  Ibid, paras 12 and 13.

[10]  (1998) 193 CLR 72.

[11]  Ibid, at [67].

[12]  Council’s written submissions, para 10.

[13]  Ibid, para 12(a).

[14]  Council’s written submissions, paras 10 and 12.

[15] Planning and Environment Court Act 2016 (Qld) Schedule 1.

[16]  Garner, B (ed) Black’s Law Dictionary (Claitor’s Publishing, 10th ed, 2014).

[17]  e.g. Uniform Civil Procedure Rules 1999, r 681.

Close

Editorial Notes

  • Published Case Name:

    Gold Coast City Council v Adrian’s Metal Management Pty Ltd & Ors (No.3)

  • Shortened Case Name:

    Gold Coast City Council v Adrian's Metal Management Pty Ltd (No. 3)

  • MNC:

    [2019] QPEC 39

  • Court:

    QPEC

  • Judge(s):

    Jones DCJ

  • Date:

    20 Aug 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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