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- Talramp Pty Ltd v Chief Executive, Department of Transport and Main Roads (No. 2)[2020] QPEC 57
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Talramp Pty Ltd v Chief Executive, Department of Transport and Main Roads (No. 2)[2020] QPEC 57
Talramp Pty Ltd v Chief Executive, Department of Transport and Main Roads (No. 2)[2020] QPEC 57
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Talramp Pty Ltd v Chief Executive, Department of Transport and Main Roads (No. 2) [2020] QPEC 57 |
PARTIES: | TALRAMP PTY LTD (ACN 077 872 327) (appellant/respondent) v CHIEF EXECUTIVE DEPARTMENT OF TRANSPORT AND MAIN ROADS (respondent/applicant) |
FILE NO: | 335/2019 |
DIVISION: | Planning and Environment |
PROCEEDING: | Cost Application |
ORIGINATING COURT: | Planning and Environment Court, at Brisbane |
DELIVERED ON: | 1 December 2020 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Determined on the papers. Closed 17 November 2020. |
JUDGE: | R S Jones, DCJ |
ORDER: |
|
CATCHWORDS: | PLANNING AND ENVIRONMENT – APPEAL - COSTS – - pursuant to s 60 of the Planning and Environment Court Act - Whether the substantive proceeding was vexatious or frivolous – whether costs ought be awarded in relation to stormwater issue – where stormwater issue fell away before appeal commenced |
LEGISLATION: | Local Government Planning and Environment Act 1990 (Qld) Planning and Environment Court Act 2016 (Qld) Sustainable Planning Act 2009 (Qld) Transport Infrastructure Act 1994 (Qld) Transport Planning and Coordination Act 1994 (Qld) |
CASES: | Cox & Anor v Brisbane City Council & Anor (No. 2) [2013] QPEC 78 Gold Coast City Council v Adrian’s Metal Management Pty Ltd & Ors (No. 2) [2019] QPEC 2 Mudie v Gainriver Pty Ltd & Anor (2003) Qd R 271 Oshlack v Richmond River Council (1998) 193 CLR 72 Sincere International Group Pty Ltd v Council of the City of Gold Coast (No. 2) [2019] QPEC 9 Talramp Pty Ltd v Chief Executive Department of Transport and Main Roads [2020] QPEC 53 |
COUNSEL: | Mr M McDermott for the appellant/respondent |
SOLICITORS: | Norton Rose Fulbright Australia for the respondent/applicant |
Introduction
- [1]This proceeding is concerned with an application for costs brought by the Chief Executive, Department of Transport and Main Roads against Talramp Pty Ltd. In the substantive proceedings Talramp Pty Ltd (Talramp) appealed a decision made by the Chief Executive, Department of Transport and Main Roads (the Chief Executive) limiting access to and from Talramp’s site at Dalby to left in left out traffic manoeuvres only. Talramp’s appeal against that decision was unsuccessful and the Chief Executive now seeks its costs of the appeal. For the reasons given below the orders of the court are:
- Talramp Pty Ltd is to pay the Chief Executive’s costs of the substantive proceeding.
- Such costs be limited to those costs incurred from 29 January 2020 to 3 September 2020 inclusive.
- The application for costs, insofar as it was concerned with the stormwater issue, is dismissed.
Background
- [2]The subject land fronts the Warrego Highway for a length of 970 metres and is located on the south eastern outskirts of Dalby. The Warrego Highway at this location is a road of state and national significance and is both a state controlled road and a limited access road. It was agreed between the traffic engineers that at the intersection of the Warrego Highway and Winton Streets, the area was the subject of significant heavy vehicle traffic with approximately 7,000 vehicles per day passing along the frontage, of which some 23% were described as heavy vehicular traffic. Accordingly, it was accepted that on that basis, on average during a 24 hour period, approximately 229 vehicles per hour passed the site, 70 of those were heavy vehicles. That is, more than one heavy vehicle per minute on average.
- [3]The Chief Executive carried out significant roadworks at the Warrego Highway/Winton Streets intersection adjacent to the subject land from which Talramp operated a large transport operation.
- [4]On or about 13 November 2018, a delegate of the Chief Executive made a decision pursuant to s 62(1) of the Transport Infrastructure Act 1994 (Qld) (‘TIA’) which restricted access to left-hand entry and exit movements only from the site. Other conditions were also imposed dealing with matters such as stormwater which was also a matter initially raised as an issue in dispute.
- [5]The decision made by the delegate on 13 November, was the subject of an internal review and, on 7 January 2019, another delegate of the Chief Executive made a decision pursuant to s 34 (of the Transport Planning and Co-ordination Act 1994 (Qld) (‘TPCA’)) which, in effect confirmed the original decision. It is from that decision that Talramp appealed.
- [6]By the time this proceeding came to court on 31 August 2020, the only substantive issue left in dispute was that relating to traffic movements. The stormwater issue had been abandoned by Talramp.
- [7]The Chief Executive seeks orders in the following terms pursuant to s 60 of the Planning and Environment Court Act 2016 (Qld) (‘PECA’):
- that the Appellant pay the Respondent’s costs to be assessed on a standard basis (or as agreed), of and incidental to the appeal arising out of the disputed stormwater issues identified in paragraph 8A of the Appellant’s document titled “Further and Better Particulars of Consolidated Grounds of Appeal”; and
- that the appellant pay the Respondent’s costs, to be assessed on a standard basis (or as agreed), of and incidental to the appeal arising out of the disputed issues identified in paragraphs 8(a), (b), (c) and (d) of the Appellant’s document titled “Further and Better Particulars of Consolidated Grounds of Appeal” from a date that is seven (7) days after the delivery of the joint report prepared by the parties’ traffic experts (being 29 January 2020) until the last day of the hearing of the appeal (being 3 September 2020).[1] (emphasis added)
Costs under PECA
- [8]Section 60 of PECA relevantly provides:
“(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 –
- (a)the P&E Court considers the proceeding was started or conducted primarily for an improper purpose, including for example, to delay or obstruct;
…
- (b)the P&E Court considers the proceeding to have been frivolous or vexatious;
Example –
The P&E Court considers a proceeding was started or conducted without reasonable prospects of success.” (emphasis added)
- [9]The Chief Executive seeks its costs on the basis that the proceedings, insofar as they were concerned with stormwater and traffic could properly be described as being frivolous and vexatious. In this regard, of significance is that pursuant to s 59 of PECA, subject only to ss 60 and 61, “each party to a P&E Court proceeding must bear the parties own costs for the proceeding.” Accordingly, relevant to this application, unless the Chief Executive was able to convince the court that the issues raised and the proceedings were frivolous and/or vexatious, the consequence would be that each party would bear each its own costs.
- [10]
“The overarching principle governing the exercise of discretion is that 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 come [sic] qualified protection against an adverse costs order.” [Footnotes deleted]
- [11]Despite there being reference in the footnotes to that decision having been decided under the predecessor of the PECA, namely the Sustainable Planning Act 2009 (Qld), it is clear that reliance is placed on Cox for the above quoted submission. That submission simply cannot be sustained. Cox was a decision decided under an entirely different costs regime. It is unhelpful to rely on decisions which have little, if any relevance to the real issues in dispute.
- [12]In Mudie v Gainriver Pty Ltd & Anor[4], the Court of Appeal was dealing with the provisions of Local Government Planning and Environment Act 1990 (Qld), where, ss 7.6(1) and 7.6 (1A), provided for a costs regime not dissimilar to that prescribed under PECA. In the joint reasons for judgment of McMurdo P and Atkinson J it was stated:[5]
“[35] The words ‘frivolous or vexatious’ are not defined in the Act and should be given their ordinary meaning, unfettered by their meaning in the very different context of striking out or staying proceedings for an abuse of process. By the time an application for costs is made, the court knows the issues which have been litigated … The Macquarie Dictionary defines ‘frivolous’ as ‘of little or no weight, worth or importance; not worthy of serious notice: a frivolous objection: characterised by lack of seriousness or sense: ‘frivolous conduct.’ …
It defines ‘vexatious’ as ‘1. causing vexation, vexing, annoying …
[36] Unquestionably, something much more than a lack of success needs to be shown before a party’s proceedings are frivolous and vexatious. Where the proceedings are vexatious or oppressive will turn on the circumstances of the case and will include public policy consideration in the interest of justice.” (footnotes omitted).
- [13]That passage has been cited with approval in a number of more recent decisions of this court.[6]
- [14]
“… The phrase ‘frivolous or vexatious’ as it appears in s.60(1)(b) of PECA is not defined. It is, as a consequence, to be given its ordinary meaning. Williams JA in Mudie v Gainriver Pty Ltd … held that the words ‘frivolous or vexatious’ in s 7.6(1)(A) of the repealed Local Government (Planning and Environment) Court Act 1990 were used in everyday language, and there was little doubt as to their ordinary meaning. His Honour held that frivolous meant ‘of little or no value or importance, paltry, having no reasonable grounds and lacking seriousness or sense, silly’ McMurdo P and Atkinson J in the same decision held that the ordinary meaning of frivolous was ‘of little or no weight worth or importance’, and not ‘worthy of serious notice’.
The onus of proving frivolity lies with the applicant for costs. It is a high standard to be met, and will turn on matters of fact and agree, including public policy consideration in the interests of justice. Relevantly, something much more than a lack of success needs to be shown. … (emphasis added) (footnotes omitted).
- [15]The observations of Williams J in Mudie, concerning proceedings having no reasonable grounds or prospects of success, is consistent with the example given in respect of s 60(1)(b) of PECA. It must of course always be borne in mind that, generally speaking, the purpose of costs orders is not to punish but to compensate. In Oshlack v Richmond River Council[8] McHugh J relevantly said:
“… 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 costs of the unsuccessful litigation.”
- [16]It is of course abundantly obvious that under PECA the general rule is that costs will not ordinarily follow the event. The above passage is relied on only to emphasise the fact that the purpose of a costs order is to indemnify not to punish.
The stormwater issue
- [17]On 8 October 2019 Talramp served its further and better particulars of its consolidated grounds of appeal introducing a new disputed issue concerning stormwater. Particularly 8A provided:
“In relation to the matters set out in paragraph 8(b), but without limiting paragraph 8(b), the Warrego Highway upgrade works involved the culvert nearest the Access Point are defective for the purpose of managing stormwater flows. In particular, stormwater will cause and has already caused, gauging around the upstream culvert entrance, and caused stormwater flow problems up and down the road reserve generally, thereby further reducing the ability to effectively turn into and use the access point.
Particulars
The appellant’s grounds for asserting that the works are defective and that the works will cause stormwater flow problems up and down the road reserve are that the open drain makes a 90 degree turn in order to channel water underneath the road. The 90 degree turn will not contain the stormwater flow and will lead to damage to the verge.”
- [18]It is clear that the allegation concerning stormwater was not based on any expert advice or opinion but on observations presumably on the part of Talramp’s officers and/or agents. In paragraph 16 of Talramp’s written submissions it is asserted:
“Those concerns were based on observed scouring at the location of a new culvert installed by the respondent as part of the upgrade works that led to the partial closing of existing access. Such scouring was not denied by the Respondent.” (footnotes omitted).
- [19]That some scouring might have been observed was not denied and can be accepted but is not to the point. The allegation raised in paragraph 8A was a serious one. It asserted first, that the defective drainage would cause (and was already causing) scouring not only approximate to the culvert but “up and down the road reserve”. Further, it was asserted, again apparently without any expert advice, that the cause of the problem was that an open drain made a 90 degree turn and “the 90 degree turn will not contain the stormwater flow and will lead to damage to the verge”. It was also asserted that this would impact on the ability to access to and from the subject land.
- [20]In reaction to that allegation the Chief Executive retained an expert to deal with stormwater. On 17 October 2019, the Chief Executive notified Talramp that it had appointed a traffic expert and a stormwater expert. On 23 October 2019, Talramp notified the Chief Executive that it had appointed a traffic expert only. On 12 February 2020, the Chief Executive provided Talramp with the report of Mr Collins dealing with stormwater. That report made it abundantly clear that not only had the roadworks not caused adverse impacts in respect of stormwater but in fact had improved the situation. Insofar as the 90 degree turn was concerned, the report relevantly said:
“Any highway cross drainage, by its nature, requires a 90 degree turn, which was the case for the pre-upgrade condition. However, with reduced velocities because of the greater capacity now provided, the potential for scour and drainage to the verge have been reduced by the upgrade works.
The highway upgrade works are not defective for the purpose of managing stormwater flows, as a significant (285%) increase cross-highway culvert capacity has been provided over the pre‑upgrade situation, resulting in reductions in pondage and drainage times.”
- [21]Unsurprisingly, on 26 August 2020, three business days prior to the proceedings commencing, Talramp wrote to the Chief Executive advising that it had abandoned the stormwater issue.
- [22]On the material before me, I am satisfied that there was, in reality no real basis for making the allegations concerning stormwater. It is also clear that had Talramp made any genuine attempt to assess the stormwater issue, in all likelihood, it would have been advised that that the 90 degree turn was not a cause of any stormwater drainage problems and, indeed after the roadworks had been completed, the stormwater drainage system had been approved. No doubt that was the reason Talramp abandoned the stormwater issue almost immediately upon receiving Mr Collins’ advice.
- [23]I have sympathy for the Chief Executive’s position concerning the stormwater issue. That said, it would appear that to at least some extent, the issue was based on genuine personal observations albeit ill-informed ones. Of more significance though is that upon receiving Mr Collins’ report, Talramp acted appropriately and expeditiously in abandoning that issue. While the matter is a finely balanced one, I have reached the conclusion that this aspect of the Chief Executive’s application ought be dismissed.
Context of the proceedings
- [24]Before going on to deal with the traffic issue, I should refer to Talramp’s submissions concerning the “context” of the proceedings. In paragraph 13 of the written submissions on behalf of Talramp a number of matters are identified which, according to it, provide support for an order that each party bear their own costs. The first of those matters is what was referred to as an “inequality of information”. There is no merit in that contention in my respectful opinion. Talramp was at no disadvantage in respect of what information was or may have been relevant. As identified in the substantive reasons for judgment, there had been extensive discussion and negotiations as between the Chief Executive and Talramp and/or its agents about traffic movements into and out of the site and the location of a suitable access point including access to design and construct plans.[9]
- [25]The second matter raised was that these proceedings did not commence until after the works had been completed or mostly completed and that, in such circumstances, at least as far as I understand the submission, it was not unreasonable to raise not only the issue of access but also stormwater. For reasons that will become apparent below, I am unable to accept that submission insofar as it is concerned with the traffic issue.
- [26]The third matter raised was that the appellant “was not a stakeholder in the decision” and that it had not been afforded an opportunity to make a submission. Indeed in this context it is said “it was clear that the appellant’s views were not considered by the respondent in making its decision”. Again, this proposition is untenable. The evidence in the substantive proceeding revealed that there had been lengthy negotiations between Talramp and/or its agents and the Chief Executive for a period of approximately 18 months prior to these proceedings being commenced. Again, by reference to the reasons for judgment it was quite clear that the Chief Executive had given serious consideration to Talramp’s situation. In this context, in the substantive proceedings, it was submitted on behalf of Talramp that, notwithstanding a so-called “winding back” by the parties, “prima facie” on or about 8 March 2018, an agreement had been reached concerning access which could be “demonstrated by the Chief Executive actually commencing construction of the subject works”.[10]
- [27]The fourth matter raised was that the decision under appeal was one that directly affected Talramp’s property and, presumably, its ability to use that property in an efficient and economic manner. That, with respect, is stating little more than the obvious. The real and potential impacts on Talramp resulted from the decision made from the Chief Executive were dealt with in detail in the substantive proceeding and in the reasons for judgment. That Talramp had a genuine interest in the outcome of the proceeding is not to the point. The real question is whether or not the proceedings instigated by Talramp against the Chief Executive, were frivolous in the sense of having no reasonable prospects of success.
- [28]The final matters raised were that Talramp had a genuine interest and concern about the traffic safety issues associated with the left in left out turning manoeuvres that resulted from the decision of the Chief Executive. In this context it was said “it is not unforeseeable that the appellant would have a duty of care to ensure the safety of potential users of the access, where the access is being used for the purposes of the conduct of the appellant’s business”. Again, what can be readily accepted is that Talramp had every right to raise concerns about safety. However, for the reasons set out below Talramp’s concerns in this regard played but a minor role in the substantive proceeding. Finally, it was said that there was no case law about the operation of s 62 of the TIA. That may well be the case but the substantive proceeding was not one involving the resolution of difficult matters of law. The outcome of the case was determined having regard to the facts established by the evidence.
The access arrangements and traffic
- [29]In paragraph 36 of the reasons for judgment matters of agreement and disagreement concerned with traffic were identified on behalf of Talramp. They relevantly provided:
“(a) Agreement
…
- (iii)Left in left out access at Warrego Highway access will improve safety in the immediate vicinity of the access.
- (iv)Left in left out is fundamentally safer, from a traffic engineering perspective, than all turns access.
- (v)The Warrego Highway upgrade works have created a road environment that no longer caters for safe movements at the permitted access location.
- (v)In the absence of all turn access an access off Winton Street East, there would be a need for alternative routes for access for vehicles from the south/east and leading to the north/west.
- (b)Disagreement
- (i)Whether the design of the current access … precludes access by large heavy vehicles …
- (ii)Left in left out arrangement will have safety implications on other parts of the network.
- (iii)The existing access would cause safety issues for B-doubles manoeuvring onto and from the site (including internal conflicts).
- (iv)Left in left out access by B-doubles would need to use both traffic lanes and would create a safety issue.” [Emphasis added]
- [30]In the reply submissions on behalf of the Chief Executive, Talramp’s concerns about the safety of traffic movements into and out of the site were described as being “a residual concern about the access”.[11] I consider that to be a fair description. The clear emphasis during the course of the proceedings was; first, the impact the left in left out access arrangements would have Talramp’s operations on the site. Second, the safety issues that might arise as a consequence of the detours vehicles would have to make to accommodate left in left out access.[12] Insofar as safety issues were concerned with access into and out of the site, they ran a distant third. In this context, in the written submissions on behalf of Talramp in the substantive proceedings, it was said in part:
“The experts agreed that a left in, left out access would be inherently safer than all movement access at the current access point and agreed that the current configuration whereby right-turn access is facilitated through a gap in the medium barrier is an unsatisfactory outcome. None of that is disputed.
What is disputed, however, is that the existing access, limited to left in, left out configuration is an appropriate outcome. Mr Crank’s evidence is that the left in left out arrangement results in unacceptable outcomes, particularly for heavy vehicles, as they are required to undertake significant detours that result in compromised safety on the traffic network more broadly and that this, and other safety factors mean that the original decision and the reviewed decision were inappropriate.” (emphasis added)
- [31]There was no dispute that all-turn access into and out of the site could no longer be accommodated, for traffic safety reasons. And, insofar as Mr Crank, the traffic engineer relied on by Talramp, did have concerns about the resulting access arrangements, he accepted that in the absence of alternate access, the existing arrangements provided an acceptable solution.[13]
- [32]In this regard Talramp’s primary case was that an alternate access site ought to be identified by the court but that the existing traffic arrangements remain in place until it was practicable to provide all turn manoeuvres at the alternate access location. Significantly in my view, it was accepted on behalf of Talramp that the alternate access arrangement “may never eventuate”. In the written submissions on behalf of Talramp it was said:
‘“Any decision of this court would simply identify the approved point of access and the approval mode of access. That is, whether there are any other restrictions to be imposed at the approved access point.’
This was expanded upon where it was also submitted:
“… if this court determines the decision is deficient and/or, on the merits, the location of the permitted access should be changed from the Existing Access Point (which seems to be a matter about which there is no dispute between the traffic engineers) and/or there ought be no prohibition on all-turns access for Lot 364, then the courts should set aside the decision and:
- (a)Substitute a decision that:
- (i)identifies the location of the permitted access for Lot 364 (at two alternate sites identified during the course of the proceeding);
- (ii)allows all-turn access at the permitted access location;
- (iii)allows continued left in/left out access at the Existing Access point, but requires closure of that access after the alternative access has been the subject of detailed design and construction and is operational; or
- (b)returns the issue the respondent for determination according to law in accordance with the findings of this court …” (emphasis added)
- [33]Those submissions were quite extraordinary in my view. First, they recognised the necessity to limit left hand turn access only at the existing access location. Second, they recognised, notwithstanding Talramp’s concerns about left hand turns into the site, the existing traffic arrangements provided for an acceptable traffic safety outcome. Finally, and perhaps most importantly, those submissions recognised that the existing traffic arrangements would have to stay in place until alternate access arrangements were capable of being delivered and that “that may never eventuate”.
- [34]The relief sought was obviously impracticable and doomed to fail. In this regard in the substantive reasons the court said:[14]
“The relief sought is, in my respectful view, so hypothetical and uncertain that it is unlikely to achieve any meaningful outcome. It would do little if nothing more than identify a potential access point.”
- [35]For the reasons given, I have reached the conclusion that the Chief Executive is entitled to its costs insofar as issue of traffic is concerned. Accordingly, the orders of the court will be:
- Talramp Pty Ltd is to pay the Chief Executive’s costs of the substantive proceeding.
- Such costs be limited to those costs incurred from 29 January 2020 to 3 September 2020 inclusive.
- The application for costs, insofar as it was concerned with the stormwater issue, is dismissed.
Footnotes
[1]Written submissions on behalf of the Respondent with Respect to Costs at [3].
[2][2013] QPEC 78.
[3]Written submissions at paras 4, 5 and 6.
[4](2003) Qd R 271.
[5]At [35]-[36].
[6]Sincere International Group Pty Ltd v Council of the City of Gold Coast (No. 2) [2019] QPEC 9; Gold Coast City Council v Adrian’s Metal Management Pty Ltd & Ors (No. 2) [2019] QPEC 2.
[7]At [27]-[28].
[8](1998) 193 CLR 72 per McHugh J at para [67].
[9]Talramp Pty Ltd v Chief Executive Department of Transport and Main Roads [2020] QPEC 53 at paras [30]-[34].
[10]Ibid.
[11]At para 9.
[12]That issue is the first of the emphasised paragraphs.
[13]Talramp Pty Ltd v Chief Executive Department of Transport and Main Roads [2020] QPEC 53 at [46].
[14]At [60].