Heather v Sunshine Coast Regional Council (No. 2)
[2023] QPEC 4
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
- Heather v Sunshine Coast Regional Council (No. 2)[2023] QPEC 4
- Add to List
Heather v Sunshine Coast Regional Council (No. 2)[2023] QPEC 4
Heather v Sunshine Coast Regional Council (No. 2)[2023] QPEC 4
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Heather & Anor v Sunshine Coast Regional Council & Ors (No. 2) [2023] QPEC 4 |
PARTIES: | JAY ANTHONY HEATHER ELISABETH IRENE HEATHER (applicants) v SUNSHINE COAST REGIONAL COUNCIL (first respondent) GLYNN EDWARD MOSELEY KARRAN JAYNE MOSELEY (second respondents) |
FILE NO/S: | 11/2021 |
DIVISION: | Planning and Environment |
PROCEEDING: | Application for costs |
DELIVERED ON: | 14 March 2023 |
DELIVERED AT: | Maroochydore |
HEARING DATES: | Decided on written submissions filed on 10 January 2023 and 31 January 2023. |
JUDGE: | Cash DCJ |
ORDERS: | The application is dismissed. |
CATCHWORDS: | PLANNING AND ENVIRONMENT – COSTS – where the applicants attempted to challenge a code assessable approval for tidal works – where the applicants were unsuccessful in seeking review of the decision to approve the tidal works – where the second respondents seek their costs of the application – whether the court’s discretion to award costs is enlivened – whether the proceeding was conducted primarily for an improper purpose – whether the proceeding was frivolous or vexatious |
LEGISLATION: | Planning and Environment Court Act 2016 (Qld), s 59, s 60 |
CASES: | Favero v Council of the City of Gold Coast [2019] QPEC 61; [2020] QPELR 777, [14]-[16], discussed Redland City Council v Canaipa Developments Pty Ltd & Ors [2021] QPEC 62, [14], distinguished Robertson v Brisbane City Council & Ors [2021] QPEC 54; [2022] QPELR 1197, [29], followed Sincere International Group Pty Ltd v Council of the City of Gold Coast (No. 2) [2019] QPEC 9; QPELR 662, [25]-[30], followed Williams v Spautz (1992) 174 CLR 509, 525, applied |
SOLICITORS: | P&E Law for the applicants North Coast Law for the second respondents |
Introduction
- [1]The Heathers and the Moseleys own properties adjacent to each other on a canal in Minyama. The Moseleys sought and obtained approval from the Sunshine Coast Council to construct a gangway, deck and pontoon protruding from their property into the canal. The Heathers challenged the decision of the Council to approve the works. Because the works were code assessable the Heathers had no statutory right of appeal. Instead, they applied to the Planning and Environment Court for declarations that the decision was invalid because of alleged jurisdictional error. The Council was the first respondent to this application and the Moseleys the second respondents. The Heathers were unsuccessful in their application. On 7 October 2022 I ordered the Heathers’ application be dismissed and published my reasons.[1] The Moseleys foreshadowed making an application for their costs. The Council, as first respondent, indicated it did not seek any order as to costs. Orders were made to facilitate the filing of written submissions and on 24 February 2023 it was confirmed that the parties were content for the matter to be decided on these written submissions.
- [2]What follows are my reasons for declining to make a costs order in favour of the Mosleys.
Relevant legislation and legal principles
- [3]The starting point is the long-recognised position that costs are a creature of statute. If a court has a power to award costs, it is to be found in legislation. In this case, that legislation is the Planning and Environment Court Act 2016 (Qld) (‘PECA’) and, more particularly, sections 59 and 60, which are set out below.
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)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;
Example—
A party (the first party) with similar commercial interests to another party started a proceeding. The P&E Court considers the proceeding was started primarily to advance the first party’s commercial interests by delaying or obstructing the other party’s development approval from taking effect.
- (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.
- (c)a party has not been given reasonable notice of intention to apply for an adjournment of the proceeding;
- (d)a party is required to apply for an adjournment because of the conduct of another party;
- (e)without limiting paragraph (d), a party has introduced, or sought to introduce, new material;
- (f)a party has defaulted in the P&E Court’s procedural requirements;
- (g)the P&E Court considers an applicant for a development application or change application did not give all the information reasonably required to assess the development application or change application;
- (h)the P&E Court considers an assessment manager, referral agency or local government should have taken an active part in a proceeding and did not do so;
- (i)an applicant, submitter, assessment manager, referral agency or local government does not properly discharge its responsibilities in the proceeding.
- (2)In this section—
change application means an application under the Planning Act, section 78, other than for a minor change.
referral agency means a referral agency under the Planning Act.
- [4]I note that section 61 of PECA provides for a different power to award costs, including where the matter before the P&E Court was an ‘enforcement proceeding’.[2] The two provisions are not to be confused. Under section 60 the discretion to award costs will only be enlivened where one or more of the statutory criteria in subsections (1)(a) to (i) have been satisfied. Section 61 is in broader terms, and the discretion arises to be exercised according to familiar criteria whenever the matter is an enforcement proceeding. It will be necessary to return to this distinction when addressing the Moseleys’ reliance upon another decision of the Planning and Environment Court concerning costs.[3]
- [5]The Moseleys argue that subsections 60(1)(a) and (b) are engaged. The former requires the court to consider if the proceeding was started or conducted primarily for an ‘improper purpose’. The latter requires consideration of whether the proceeding was ‘frivolous or vexatious’. Subsection 60(1)(b) has been the subject of much judicial consideration, both in its present and antecedent forms. The Heathers and the Moseleys both cite the recent decision of Williamson KC DCJ in Sincere International Group Pty Ltd v Council of the City of Gold Coast (No. 2),[4] in which his Honour summarised matters relevant to subsection 60(1)(b). As I respectfully agree with his Honour’s analysis, it is convenient to set out some passages from the decision (citations omitted).[5]
Section 60(1) of PECA is similar to s. 7.6(1A) of the repealed Local Government (Planning & Environment) Act 1990. The latter was held to reflect a legislative intent to give the Court a power to award costs to compensate a party disadvantaged by ‘unmeritorious conduct’ of another party. The unmeritorious conduct that may be compensated for is particularised in the subsections of the provision. One type of unmeritorious conduct common to both s. 7.6(1A) of the repealed legislation, and s. 60(1)(b) of PECA, is where a proceeding is considered to be ‘frivolous or vexatious’…
…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 (No.2) 2 Qd R [2003] 271 at [59] held that the words ‘frivolous or vexatious’ in s. 7.6(1A) of the repealed Local Government (Planning & 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 degree, including public policy considerations and the interests of justice. Relevantly, something much more than lack of success needs to be shown to engage s. 60(1)(b) of PECA.
- [6]Noting the example which follows subsection 60(1)(b), which forms part of the Act,[6] his Honour went on to state
The phrase ‘without reasonable prospects of success’ has been held to equate its meaning with ‘so lacking in merit or substance as to be not fairly arguable’. A case which is not fairly arguable is one that is regarded as ‘bound to fail’. This is a concept that falls appreciably short of ‘likely to succeed’. A lack of success does not mean that a proceeding had no reasonable prospects, or lacked merit.
- [7]Furthermore, R S Jones DCJ in Robertson v Brisbane City Council & Ors[7] observed that ‘[i]n this jurisdiction, even when a party’s case is unsuccessful and could properly be described as weak does not mean, without more, that costs ought necessarily be awarded to the successful party.’
- [8]Subsection 60(1)(a) is not as commonly invoked. For this provision to be engaged the court must be satisfied that a party brought or conducted the proceeding for an improper purpose. There is little judicial consideration of the phrase in the context of section 60 of PECA and the parties did not cite any authority directly touching upon this provision. Kent QC DCJ mentioned subsection 60(1)(a) in Favero v Council of the City of Gold Coast,[8] but that was only in the context of setting out the submissions of the applicant in that case. An analogy seems to have been drawn to cases concerning an abuse of the process of the court.[9] While his Honour did not expressly endorse this idea, it has, I think, merit. Williams v Spautz[10] remains the leading authority on abuse of process where it is alleged the proceeding was brought or maintained for an improper or collateral purpose. What emerges from the decision is that to establish an abuse of process in this sense
the existence of an unworthy or reprehensible motive for bringing the action is not enough and that it must appear that the purpose sought to be effected by the litigant in bringing the proceedings was not within its scope and was improper.[11]
- [9]The plurality in that case also endorsed a statement to the effect that it is necessary to show that the predominant purpose was to use legal process for some outcome outside the scope of the proceeding.[12]
- [10]This application is not concerned with an alleged abuse of process. But some guidance may be found in the consideration of what is an improper purpose when abuse of process is alleged. In my view there is no reason to regard this phrase, where used in subsection 60(1)(a) of PECA, as having some different meaning to that set out above. That view is also consistent with the example provided in the legislation, which speaks of a proceeding started primarily to advance a party’s commercial interests by delaying or obstructing another party from taking advantage of a development approval. As such, to engage subsection 60(1)(a), the Moseleys must show that the predominant purpose of the Heathers was to obtain some collateral advantage outside of the purpose for which the legal proceeding was designed.
- [11]Late in the Moseleys’ written submissions,[13] a suggestion was faintly advanced that the Heathers did not ‘properly discharge [their] responsibilities in the proceeding’, enlivening the discretion to award costs pursuant to subsection 60(1)(i). But in the context of the Moseleys’ submissions, this is to be understood as a particular of the allegation that the Heathers conducted the proceeding for an improper purpose. To the extent that subsection 60(1)(i) is relevant, it is considered below.
The contentions of the parties
- [12]Principally, the Moseleys submit that the Heathers’ application was frivolous or vexatious. As mentioned, a submission was also advanced that the application was commenced and conducted for an improper purpose, proof of which may be found in the asserted failure of the Heathers to properly discharge their responsibilities in the proceeding. It is convenient to deal with each contention in turn.
Was the proceeding frivolous or vexatious?
- [13]The essence of the Moseleys’ submissions is that the application was ‘doomed to fail’ and was an attempt to challenge the merits of the Council’s decision thinly disguised as a challenge based on jurisdictional error. The Heathers respond to this submission by analysing the issues at the hearing with reference to my reasons for dismissing their application (‘the principal reasons’). It is convenient to adopt the approach taken by the Heathers.
- [14]The first issue I identified was whether the decision-maker misapplied AO 10.1 This arose from a contention that the decision-maker wrongly thought there was a relevant water allocation area associated with the Moseley’s property. This was an arguable proposition. There was email correspondence from around the time of the decision from which it could be argued that the decision-maker mistakenly thought there was a water allocation area. Considering all the evidence, I was not persuaded to make this finding.[14] But the proposition advanced by the Heathers was not doomed to fail.
- [15]The second issue was whether the decision-maker erred in the application of PO 10.1. The resolution of this matter turned upon the construction of the Tidal Works Code.[15] Each of the three parties to the proceeding proposed a different construction of the Code. This is sufficient to demonstrate that the matter did not admit of a single clear answer and that the pursuit of this ground of challenge could not be described as frivolous or vexatious. Further support for this conclusion may be found in the fact that I did not wholly accept the submissions of any party as to the construction of the Tidal Works Code.[16]
- [16]The third issue was whether the decision was legally unreasonable. To show the decision was legally unreasonable, it was first necessary for the Heathers to show their construction of PO 10.1 was to be preferred. If they were right, it is likely the decision was one that was legal unreasonable. As I have said, the proper construction of the Tidal Works Code was a matter that was arguable, and it was not frivolous or vexatious for the Heathers to pursue this connected basis for challenging the decision.
- [17]The fourth matter concerned the conditions attached to the development approval. The Heathers raise an issue as to whether I misapprehended the basis of their challenge. The suggestion is that the Heathers challenged the conditions as being so vague and uncertain as to render the decision something other than the final disposition of the Moseley’s application.[17] I considered their case to be that the conditions either on their own or in combination with other matters compelled the conclusion that the decision was legally unreasonable or affected by jurisdictional error.[18] The distinction does not much matter. Either argument depends upon a conclusion that one or more of the conditions was impermissibly vague, uncertain, or irreconcilable. As I explained,[19] that was not the case. Having said that, it is once again necessary to observe that while I found against the Heathers on this point, that lack of success does not translate into a conclusion that points were raised frivolously or to vex the respondents. The matter was at least arguable, especially considering the poor drafting of the conditions.[20]
- [18]I am not persuaded that the proceeding was frivolous or vexatious.
Was the proceeding started or conducted primarily for an improper purpose?
- [19]The Moseleys do not in their written submissions identify the improper purpose to be attributed to the Heathers beyond stating they ‘started the proceedings primarily to obstruct the [Moseleys’] use of their pontoon to gain the benefit of the use of a larger vessel’.[21] This may well have been a motivation of the Heathers in challenging the decision to approve the works. It may well be that the Heathers hoped that if their challenge was successful the result would be that the Moseley’s jetty had to be removed.[22] But that is not, in my view, an ‘improper’ purpose. The purpose attributed to the Heathers is one closely aligned with the legal proceeding. It is not a collateral purpose or one that is outside the scope of the originating application.
- [20]The Moseley’s reliance upon subsection 60(1)(i) seems to me to be, with respect, misconceived. True it is that there is a high expectation that parties to litigation in the Planning and Environment Court will discharge their responsibilities properly, and in a manner consistent with the lawyers’ ethical obligations and statutory principles.[23] But there could be no suggestion that this proceeding was conducted in a manner that fell short of these aims. Some issues that were raised fell away, but that is not unusual or necessarily an indication that a party is not discharging its responsibilities. The submission of the Moseleys seems to be that the Heathers’ pursuit of such an unmeritorious application is indicative it was commenced for an improper purpose. It is sufficient to deal with this suggestion to recall my conclusion above that the application was not so hopeless or unarguable as to be frivolous or vexatious.
- [21]It remains only to consider some of the authorities relied upon by the Moseleys. Reliance was placed on the decision of the High Court in Latoudis v Casey[24] in which the compensatory nature of an award for costs was emphasised. This is undoubtedly an important consideration when the discretion to award costs is alive. But that decision was not concerned with a statute that presumed against the award of costs and set a barrier to be overcome before the discretion arose.
- [22]In a similar vein, the decision of Morzone QC DCJ in Redland City Council v Canaipa Developments Pty Ltd & Ors,[25] which is cited by the Moseleys, does not assist. In that case his Honour was considering an application for costs in an enforcement proceeding. As noted earlier, the power to award costs in an enforcement proceeding is provided for in section 61 of PECA and is not constrained by the need to prove matters of the kind that condition the exercise of the power given by section 60. His Honour’s statement that the court should be hesitant to deprive a successful party of their costs is to be seen in this context.
Conclusion
- [23]I am not persuaded the Heathers’ started or maintained the proceeding for an improper purpose or that the proceeding was frivolous or vexatious. The jurisdiction to award costs does not arise.
- [24]The application is dismissed.
Footnotes
[1] Heather & Anor v Sunshine Coast Regional Council & Ors [2022] QPEC 37.
[2] As defined in section 58 of PECA.
[3] See paragraph [22] below.
[4] [2019] QPEC 9; QPELR 662.
[5] Ibid, [25]-[30].
[6] Acts Interpretation Act 1954 (Qld), section 14(3).
[7] [2021] QPEC 54; [2022] QPELR 1197, [29].
[8] [2019] QPEC 61.
[9] Ibid, [17].
[10] (1992) 174 CLR 509.
[11] Ibid, 525.
[12] In Williams v Spautz it was to use a private prosecution for criminal defamation to exert pressure on Dr Spautz’s former employer to either reinstate him or favourably settle his unfair dismissal claim.
[13] Paragraph [54].
[14] See paragraphs [39]-[41] of the principal reasons.
[15] Ibid, [46].
[16] Ibid, [55].
[17] How, even if correct, this would result in setting aside the approval rather than the severance of the conditions was not made clear.
[18] Principal reasons at [60].
[19] Ibid, [62]-[63].
[20] Ibid, [62].
[21] Moseleys’ written submissions at [50].
[22] Which was one of the orders sought in the originating application.
[23] For example, PECA, section 10.
[24] (1990) 170 CLR 534.
[25] [2021] QPEC 62, [14].