CITATION: | Karagianis v Body Corporate for Northpoint Carseldine Community Titles Scheme 50962 & Anor (No 2) [2024] QPEC 20 |
PARTIES: | LAZAROS KARAGIANIS, ANGELA KARAGIANIS, STANLEY KARAGIANIS & ANASTASIA KARAGIANIS (Applicant) v BODY CORPORATE FOR NORTHPOINT CARELDINE COMMUNITY TITLE SCHEME 50962 (First Respondent) BRISBANE CITY COUNCIL (Second Respondent) |
FILE NO: | 7/21 |
DIVISION: | Planning and Environment |
PROCEEDING: | Application for Costs |
ORIGINATING COURT: | Planning and Environment Court, Brisbane |
DELIVERED ON: | 17 April 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 20 March 2023 with further written submissions received 22 and 27 March 2023 |
JUDGE: | McDonnell DCJ |
ORDER: | The Application for Costs is dismissed |
CATCHWORDS: | PLANNING AND ENVIRONMENT – APPLICATION FOR COSTS – where the Applicant’s Originating Application was dismissed – where the First Respondent subsequently brought an Application for Costs – whether the proceeding was frivolous or vexatious – whether the proceeding was started or conducted primarily for an improper purpose – whether the Applicant introduced or sought to introduce new material – whether the Applicant defaulted in the Court’s procedural requirements – whether the Court ought to exercise its discretion to award costs |
LEGISLATION: | Planning and Environment Court Act 2016 (Qld) ss 59, 60, 64(1) |
CASES: | Favero v Council of the City of Gold Coast [2019] QPEC 61 Ferreyra v Brisbane City Council (No. 2) [2016] QPEC 13 Heather & Anor v Sunshine Coast Regional Council & Ors (No. 2) [2023] QPEC 4 Karagianis v Body Corporate for Northpoint Carseldine Community Titles Scheme 50962 & Anor [2022] QPEC 26 Mudie v Gainriver Pty Ltd (No.2) 2 Qd R [2003] 271 Riverside Development Pty Ltd v Brisbane City Council & Ors [2021] QPEC 56 Robertson & Ors v Brisbane City Council & Ors [2021] QPEC 54 SDA Property Nominees Pty Ltd v Scenic Rim Regional Council & Ors (No. 2) [2022] QPEC 51 Sincere International Group Pty Ltd v Council of the City of Gold Coast (No.2) [2019] QPEC 9 Williams v Spautz (1992) 174 CLR 509 |
COUNSEL: | The Applicant was self-represented K Buckley for the First Respondent |
SOLICITORS: | The Applicant was self-represented K&L Gates for the First Respondent |
Introduction
Background
The Originating Application and Reasons for Judgement
The costs regime
“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.”[14]
“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.
…”[15]
“[24] The starting position with respect to costs is stated in s. 59 of PECA. The provision requires each party to a P&E Court proceeding to bear its own costs for the proceeding. This position is, however, subject to ss. 60 and 61. These provisions confer a power on the Court to award costs where prescribed preconditions are established. Once an identified precondition is established, there is an unfettered discretion to award costs.”[17] (emphasis added, footnotes omitted)
Was the proceeding frivolous or vexatious under s 60(1)(b)?
“[27] Sincere contends that the Council’s defence of the appeal was frivolous. 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’.”[19] (footnotes omitted)
“[28] 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.
…
[30] 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.”[20] (emphasis added, footnotes omitted)
“[29] On balance, I agree with the approach adopted by Judge Williamson in Sincere. In this jurisdiction, even when a party’s case is unsuccessful and could be described as weak does not mean, without more, that costs ought necessarily be awarded to the successful party.”[22] (footnote omitted)
Was the proceeding started or conducted primarily for an improper purpose under s 60(1)(a)?
“[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, 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. While his Honour did not expressly endorse this idea, it has, I think, merit. Williams v Spautz 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.
[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.
[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.”[42] (footnotes omitted)
Did Mr Karagianis introduce, or seek to introduce, new material under s 60(1)(e)?
Did Mr Karagianis default in this Court’s procedural requirements under s 60(1)(f)?
Other discretionary factors
Discretion to award costs
Indemnity costs
Order
[1] Court Document No. 1.
[2] Court Document No. 10.
[3] Court Document No. 24.
[4] The Originating Application named three other Applicants who were removed for failure to attend the hearing.
[5] Karagianis v Body Corporate for Northpoint Carseldine Community Titles Scheme 50962 & Anor [2022] QPEC 26 (‘Reasons for Judgement’).
[6] Court Document No. 44.
[7] Court Document No. 45, Order dated 3 November 2022, [1].
[8] Reasons for Judgement, [47], [53].
[9] Reasons for Judgement, [124].
[10] Reasons for Judgement, [75].
[11] Reasons for Judgement, [110], [113].
[12] Reasons for Judgement, [123], [127].
[13] Reasons for Judgement, [129].
[14] PECA, s 59.
[15] PECA, s 60.
[16] [2019] QPEC 9 (‘Sincere’).
[17] Sincere, [24]. See also SDA Property Nominees Pty Ltd v Scenic Rim Regional Council & Ors (No. 2) [2022] QPEC 51, [10] (‘SDA’).
[18] Court Document No. 48, First Respondent’s Written Submissions on Costs filed 20 March 2023, [21] (‘Northpoint’s Costs Submissions’).
[19] Sincere, [27] citing Mudie v Gainriver Pty Ltd (No.2) 2 Qd R [2003] 271, [35], [59] (‘Mudie’). See also SDA, [12]–[13]; Robertson & Ors v Brisbane City Council & Ors [2021] QPEC 54, [9]–[15] (‘Robertson’).
[20] Sincere, [28], [30].
[21] [2021] QPEC 54.
[22] Robertson, [29].
[23] Northpoint’s Costs Submissions, [25]–[27], [37].
[24] Northpoint’s Costs Submissions, [28]–[32], [37].
[25] Riverside Development Pty Ltd v Brisbane City Council & Ors [2021] QPEC 56, [14] citing Uniform Civil Procedure Rules 1999 (Qld) r 209(1).
[26] Northpoint’s Costs Submissions, [33]–[35], [37].
[27] Northpoint’s Costs Submissions, [39(a)].
[28] Northpoint’s Costs Submissions, [39(b)].
[29] Northpoint’s Costs Submissions, [39(c)].
[30] Northpoint’s Costs Submissions, [39(d)].
[31] Northpoint’s Costs Submissions, [39(e)].
[32] Sincere, [27] citing Mudie, [59].
[33] Reasons for Judgement, [17].
[34] Reasons for Judgement, [33], [54].
[35] Reasons for Judgement, [38]–[41], [54]–[62].
[36] Reasons for Judgement, [38]–[41].
[37] Reasons for Judgement, [42]–[53], [63]–[113].
[38] Reasons for Judgement, [75].
[39] Sincere, [30].
[40] Sincere, [28].
[41] [2023] QPEC 4 (‘Heather’).
[42] Heather, [8]–[10] citing Favero v Council of the City of Gold Coast [2019] QPEC 61, [17]; Williams v Spautz (1992) 174 CLR 509, 525.
[43] Northpoint’s Costs Submissions, [47(a)].
[44] Northpoint’s Costs Submissions, [47(b)].
[45] Northpoint’s Costs Submissions, [48(a)].
[46] Northpoint’s Costs Submissions, [48(b)].
[47] Heather, [8]–[10].
[48] Northpoint’s Costs Submissions, [49(a)].
[49] Ferreyra v Brisbane City Council (No. 2) [2016] QPEC 13, [13].
[50] Originating Application Hearing T1-72, l 15.
[51] Northpoint’s Costs Submissions, [49(b)].
[52] Application for Costs Hearing T1-67, ll 1–5.
[53] Originating Application Hearing T2-25, ll 14–20.
[54] Sincere, [24], [109]; SDA, [10].
[55] Application for Costs Hearing T1-8, ll 36–39.
[56] Application for Costs Hearing T1-8, ll 43–45.
[57] PECA, s 64(1).
