BGM Projects Pty Ltd v Zacka & Ors [2019] QPEC 20 (2019) QPELR 885

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: BGM Projects Pty Ltd v Zacka & Ors [2019] QPEC 20 PARTIES: BGM PROJECTS PTY LTD (applicant) v MICHAEL JAMES ZACKA (first respondent) AND HELEN JOY ZACKA (second respondent) AND FRASER COAST REGIONAL COUNCIL (third respondent) FILE NO/S: 2312 of 2018 DIVISION: Planning and Environment PROCEEDING: Application ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 14 May 2019 DELIVERED AT: Brisbane HEARING DATE: 11 and 12 April 2019 JUDGE: Kefford DCJ ORDER: The application is dismissed. CATCHWORDS: PROCEDURE – PLANNING AND ENVIRONMENT COURT JURISDICTION AND POWERS – INHERENT POWERS – PROCEDURE UNDER RULES OF COURT – where the first and second respondents applied for the proceedings to be struck out or permanently stayed – where the Originating Application seeks enforcement orders– where the enforcement orders relate to alleged unlawful operational work– where the applicant has a current proceeding in the Supreme Court with respect to the same matter –– whether the proceedings should be struck out or stayed on the basis they are an abuse of process – whether the proceeding should be struck out as it discloses no cause of action LEGISLATION: Planning Act 2016 (Qld), s 180 -- 1 of 10 -- 2 Uniform Civil Procedure Rules 1999 (Qld), r 171 CASES: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256, cited Glastonbury & Anor v Townsville City Council & Ors [2011] QPEC 128; [2012] QPELR 216, approved Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486, cited Henry v Henry [1996] HCA 51; (1996) 185 CLR 571, cited Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd & Ors [2009] HCA 43; (2009) 239 CLR 75, cited Moore v Inglis (1976) 9 ALR 509, considered Ocean Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 165 CLR 197, cited Slough Estates Ltd v Slough Borough Council [1968] Ch 299, considered South-West Forest Defence Foundation Inc v Executive Director of the Department of Conservation and Land Management and Anor (No 1) [1998] HCA 34; (1998) 154 ALR 405, cited Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118, cited Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, cited COUNSEL: T Sullivan QC and R Quirk for the applicant R Litster QC and L Sheptooha for the first and second respondents B Job QC and D Purcell for the third respondent SOLICITORS: Clinton Mohr Lawyers for the applicant Hopgood Ganim Lawyers for the first and second respondents Connor O’Meara for the third respondent TABLE OF CONTENTS Introduction .......................................................................................................................... 3 Should the proceeding be struck out or permanently stayed as an abuse of process? .......... 3 Should the proceeding be struck out under r 171 of the Uniform Civil Procedure Rules? .. 7 Should BGM Projects be required to provide particulars? ................................................... 9 Should BGM Projects pay the Zackas’ costs of the proceeding? ....................................... 10 Conclusion .......................................................................................................................... 10 -- 2 of 10 -- 3 Introduction [1] BGM Projects Pty Ltd owns land at Orchid Drive and Bushnell Road, Burrum Heads, Hervey Bay. It has been developing the land for residential lots. Michael James Zacka and Helen Joy Zacka also own land at Bushnell Road. The southern boundary of the Zackas’ land adjoins the northern boundary of BGM Projects’ land. [2] On 22 June 2018, BGM Projects commenced this proceeding against the Zackas. It seeks enforcement orders to require the Zackas to refrain from committing a development offence, as well as enforcement orders to remedy the effect of a number of development offences that it alleges the Zackas committed under the Integrated Planning Act 1997 (Qld). [3] The Zackas want the court to strike out or permanently stay the proceeding. They also want BGM Projects to pay their costs of the proceeding. In the alternative, they seek particulars of certain allegations in the Originating Application. Should the proceeding be struck out or permanently stayed as an abuse of process? [4] The Zackas allege this proceeding is an abuse of process because it causes, or is likely to cause, improper vexation or oppression. The vexation is caused by BGM Projects bringing multiple proceedings in different courts in Queensland with respect to the same subject matter, question or series of questions. The Zackas submit the parties have the “the same chance”1 in both proceedings and the relief sought in each is “equally effective”. They say that to permit BGM Projects, after sitting idly by for some 8 years, to vex the Zackas with these enforcement proceedings is “seriously and unfairly burdensome, prejudicial or damaging” or “productive of serious and unjustified trouble and harassment”.2 The Zackas carry the onus of satisfying the court that there is an abuse of process.3 [5] The court has power under r 171 of the Uniform Civil Procedure Rules 1999 (Qld) to strike out proceedings that are frivolous or vexatious or are otherwise an abuse of process. The court also has an inherent power to prevent its procedures being abused,4 including by permanently staying the proceedings.5 What amounts to an abuse of court process is not susceptible of formulation comprising defined and closed categories. It includes proceedings that are shown to be frivolous or vexatious,6 and extends to proceedings that are seriously and unfairly burdensome, prejudicial or damaging, or productive of serious and unjustified trouble and harassment.7 1 Slough Estates Ltd v Slough Borough Council [1968] Ch 299, 315-6. 2 The Amended Application in Pending Proceeding made no reference to the legal basis for the application. The basis was clarified by Mr Litster QC during oral submissions. 3 Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, 529. 4 Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd & Ors [2009] HCA 43; (2009) 239 CLR 75, 93 [27]-[28]. 5 Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256, 266 [14] citing Ridgeway v The Queen (1995) 184 CLR 19, 74-75. 6 Ocean Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 165 CLR 197, 247; Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486, 502. 7 Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256, 266-7 [14] citing Ridgeway v The Queen (1995) 184 CLR 19, 74-75. -- 3 of 10 -- 4 [6] It is prima facie vexatious and oppressive to commence a second or subsequent action if an action is already pending with respect to the matter in issue.8 Whether the objective burdensome effect of the second action renders the continuation of the action unfair, vexatious or an unjustifiable oppression is to be considered having regard to the circumstances of the case. The power to grant a permanent stay or summarily terminate proceedings by striking them out is to be exercised with caution.9 [7] BGM Projects has two extant proceedings. The first was commenced in July 2010 in the Supreme Court. The second was commenced in the Planning and Environment Court in 2018. [8] In the Supreme Court proceeding, BGM Projects allege, amongst other things, that the Zackas constructed: (a) a bund along part of the southern boundary of the Zackas’ land using about 450 m3 of material in the first half of 2006. The bund was built to stop water that had historically flowed from BGM Projects’ land to the ocean. It causes BGM Projects’ land to flood from time to time; (b) an elevated access on the Zackas’ land, using about 180 m3 of material, in or around 2008; and (c) works, on Zackas’ land and the adjoining State land, in the mouth of the watercourse that drains to the ocean at the northern end of the Zacka’s land. The Zackas’ used in excess of 80 m3 of material in or around April 2008 and/or October 2008 to construct the works. [9] The relief sought by BGM Projects includes: (a) declarations that the bund, the elevated access and works in the northern outlet are assessable development under the Integrated Planning Act 1997 and are unlawful; (b) injunctions requiring the Zackas to remove the bund, the elevated access and works in the northern outlet; (c) declarations that the Zackas are not entitled to cause a nuisance on BGM Projects’ land by keeping the bund, the elevated access and the works in the northern outlet at a height that does not permit water flowing from BGM Projects’ land to pass through the Zackas’ land to the ocean; and (d) damages for nuisance caused by the bund. [10] In the proceeding in this court, BGM Projects seeks enforcement orders relying on materially identical allegations to those made in its Supreme Court proceeding. The relief it seeks includes orders requiring the Zackas to remove the bund, the elevated 8 Henry v Henry [1996] HCA 51; (1996) 185 CLR 571, 590-1; Moore v Inglis (1976) 9 ALR 509, 513- 4 citing Logan v Bank of Scotland (No 2) [1906] 1 KB 141 at 150; [1904-7] All ER Rep 438 at 442 and Slough Estates Ltd v Slough Borough Council [1968] Ch 299 at 314-5; [1967] 2 All ER 270 at 275. 9 Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, 529; Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118, 131 [24]. -- 4 of 10 -- 5 access, and the works in the northern outlet. It also seeks enforcement orders restraining the Zackas from committing further development offences. [11] The Zackas submit that these proceedings are oppressive and vexatious and should be struck out or permanently stayed for six reasons. (a) First, the allegations in the Supreme Court proceeding and this enforcement proceeding, while not strictly identical, are the same in substance. (b) Second, the procedures in this enforcement proceeding do not give an advantage of substance to the procedure in the Supreme Court, and the remedies in each proceeding are “equally effective”. The Zackas submit the distinction between an injunction granted by the Supreme Court and an enforcement order granted by the Planning and Environment Court is of no moment. (c) Third, the Zackas submit this case is not dissimilar to Moore v Inglis10. In that case, the plaintiff pursued a claim in the High Court with a view to facilitating the determination of issues already live in the ACT Supreme Court. The Zackas submit that BGM Projects’ present approach seems to be to pursue a claim in the Planning and Environment Court with a view to disposing, perhaps more quickly, of part of the Supreme Court proceeding. The Zackas note that in Slough Estates Ltd v Slough Borough Council11 it appeared to Ungoed-Thomas J that the plaintiffs were running proceedings before two tribunals concurrently to increase their chances of getting the decision by the time they wanted it. He held that this duplication was, in the circumstances, vexatious, oppressive and an abuse of the process of the court. The Zackas submit the same result should follow here. (d) Fourth, in substance, all matters the subject of this proceeding are capable of being determined by the Supreme Court. Conversely, the Planning and Environment Court is not capable of determining BGM Projects’ claims for unquantified damages for nuisance, although it is asked to consider related matters as part of its discretion. The Zackas submit the only proper course is to permit the Supreme Court proceeding to run its course. It says the result of that action will dispose of all BGM Projects’ claims. (e) Fifth, the overall effect of not staying these proceedings would be to endorse the pursuit of enforcement proceedings in the Planning and Environment Court by a party seeking orders to remove unlawful development and, at the same time, the same party pursuing proceedings in the Supreme Court seeking injunctions for removal of that same unlawful development. (f) Sixth, the Zackas submit there is an obvious risk of inconsistent findings of fact and inconsistent conclusions of law in different proceedings on the same issues. Further, there is the associated risk of the court being placed in the position of having to make credit findings about witnesses in one proceeding who would also appear in the other proceeding. 10 (1976) 9 ALR 509. 11 [1968] Ch 299. -- 5 of 10 -- 6 [12] The third and fifth reasons advanced by the Zackas are unpersuasive. Unlike in Slough Estates Ltd v Slough Borough Council,12 BGM Projects is not progressing both matters concurrently. The Supreme Court proceeding has not proceeded past pleadings. BGM Projects concedes it is appropriate for the Planning and Environment Court to deal with the matters within its jurisdiction first. [13] In any event, each case is to be determined on its own facts. The principal issue is whether, in light of all of the circumstances, BGM Projects’ commencement of this proceeding should be held to be vexatious and oppressive or an abuse of the process of the court. [14] I accept that the facts that BGM Projects seeks to rely on in each proceeding are similar. BGM Projects concedes as much. I also accept that the Planning and Environment Court is not capable of determining BGM Projects’ claims for unquantified damages for nuisance. Despite this, the Zackas have not persuaded me that I should strike out or permanently stay BGM Projects’ proceeding. I am not persuaded that the proceeding is, in the circumstances of this case, vexatious or oppressive, or an abuse of process, for five reasons. [15] First, during the hearing, Mr Litster QC submitted that the Supreme Court is properly seized of all the relevant issues and can grant equally effective relief to achieve the same end. As noted in paragraph [11](d) above, the Zackas also submit that all matters the subject of this proceeding are capable of being determined by the Supreme Court. It is difficult to reconcile these submissions with the Zackas’ Defence and Counterclaim in the Supreme Court proceeding, which was settled by Mr Litster QC. The Defence and Counterclaim says that the Supreme Court presently lacks jurisdiction to determine the allegations about unlawful development, and to make any consequential declarations or orders. [16] When questioned about the inconsistency, Mr Litster QC conceded that the Supreme Court has jurisdiction, but it transpired that when he made the concession, he had no instructions to do so. There was no evidence before me that the Zackas have amended their Defence and Counterclaim in the Supreme Court proceeding, nor evidence of the form any amendment might take. [17] BGM Projects commenced the proceeding in this court after the defence was filed in the Supreme Court proceeding. Having regard to the Zackas’ allegation in its Defence and Counterclaim about the Supreme Court’s lack of jurisdiction, I am not persuaded this proceeding is vexatious or oppressive. For this reason alone, I would dismiss the Zackas’ application for strike out or a permanent stay of the proceeding. [18] Second, I do not accept that the remedies in each proceeding are “equally effective”, or that the distinction between an injunction granted by the Supreme Court and an enforcement order granted by the Planning and Environment Court is of no moment. In deciding whether to make an enforcement order, the Planning and Environment Court has regard to the broader interest in securing obedience to planning laws, which works in favour of the discretion to grant relief.13 [19] Further, under s 180 of the Planning Act 2016 (Qld), it is an offence to contravene an enforcement order, and an enforcement order attaches to the premises and binds the 12 [1968] Ch 299. 13 Glastonbury & Anor v Townsville City Council & Ors [2011] QPEC 128; [2012] QPELR 216, 233. -- 6 of 10 -- 7 owner, the owner’s successors in title and any occupier of the premises. The registrar of titles can also record the making of an enforcement order on the title. The same is not true of an injunction. [20] Third, to the extent the issues are common to both proceedings, this court could finally determine the common issues between the parties, creating an issue estoppel. As a specialist court, this court is well placed to determine the issues in an efficient manner. [21] Fourth, the assertion of vexation and oppression is difficult to accept when the Zackas have to deal with an enforcement proceeding in the Planning and Environment Court commenced by the Council in any event.14 In the Zackas Defence and Counterclaim in the Supreme Court proceeding, the Zackas assert that the Council’s proceeding should proceed to judgment before BGM Projects’ Supreme Court proceeding is progressed. [22] There is substantial cross-over between the Council proceeding and this proceeding. The Council has applied to have a joint hearing and BGM Projects are supportive of that application. If this proceeding is not struck out or stayed, Mr Litster QC conceded that this proceeding should be heard together with the Council’s proceeding. As such, a joint hearing of this proceeding with the Council proceeding will likely reduce any vexing impact that this proceeding would have on the Zackas. [23] Fifth, I have serious misgivings about the extent to which the Zackas are genuinely concerned about the risk of inconsistent findings of fact in different proceedings on the same issue. That position does not sit comfortably with their opposition to the Council’s application to join BGM Projects as a party to the Council’s proceeding. If BGM Projects is not joined as a party to the Council proceeding, BGM Projects will not be bound by the determination between the Council and the Zackas in the Council proceeding. As such, even if the Zackas application to strike out or stay this proceeding was successful, it would still face the risk of inconsistent findings of fact in different proceedings, namely the Council proceeding and the Supreme Court proceeding. Should the proceeding be struck out under r 171 of the Uniform Civil Procedure Rules? [24] The Zackas seek to strike out the entire proceeding under r 171 of the Uniform Civil Procedure Rules 1999 (Qld) on the basis that the proceeding discloses no reasonable cause of action, or is frivolous or vexatious because it is groundless or lacking a legal basis or merit. [25] As I have already noted in paragraph [5] above, the power to summarily terminate proceedings by striking them out is one to be exercised with caution.15 This is to ensure that a party is not improperly deprived of the opportunity for a hearing.16 To succeed, the Zackas must demonstrate that the case is so clearly untenable that it 14 It is Application No 2400 of 2009. 15 Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, 529; Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118, 131 [24]. 16 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1969) 112 CLR 125, 129. -- 7 of 10 -- 8 cannot possibly succeed.17 If the error is one in the expression of the cause of action, not the existence of a cause, ordinarily the party should be permitted to re-plead.18 [26] The Zackas submit that BGM Projects’ Originating Application is framed in the language of the Planning Act 2016. They say this court does not have power to make an enforcement order about the matters relied on by BGM Projects. The only articulated basis for their submission is that all the matters relied on by BGM Projects occurred well before the commencement of the Planning Act 2016 took effect on 3 July 2017. In support of their submission, the Zackas rely on this court’s decisions in Benfer v Sunshine Coast Regional Council [2019] QPEC 6 (“Benfer”) and Caravan Parks Association of Queensland Limited v Rockhampton Regional Council & Anor [2018] QPEC 52 (“Caravan Parks”). [27] Neither Benfer nor Caravan Parks is authority for the proposition that this court lacks jurisdiction to make an enforcement order about acts or matters that occurred prior to 3 July 2017. [28] Under s 180(1) of the Planning Act 2016, a person may bring a proceeding in the Planning and Environment Court for an enforcement order. Section 180(2) provides for two types of enforcement orders, namely: (a) an enforcement order that requires a person to refrain from committing a development offence; and (b) an enforcement order that requires a person to remedy the effect of a development offence. [29] Under s 180(3) of the Planning Act 2016, the court’s power to make an enforcement order is enlivened where the court considers a development offence: (a) has been committed; or (b) will be committed unless the order is made. [30] The Zackas’ submissions focus on that part of the relief sought by BGM Projects that involves remedying the effect of a development offence under the Integrated Planning Act 1997, and grounds that refer to acts that occurred prior to October 2008. However, BGM Projects’ Originating Application also seeks to restrain the future commission of a development offence. For example, paragraph 1 of the prayer for relief seeks an enforcement order that the Zackas refrain from committing the development offence constituted by carrying out assessable development on the Zackas’ land without all necessary development permits. Similarly, paragraph 3 of the prayer for relief seeks an enforcement order that the Zackas refrain from committing and continuing to commit a development offence constituted by carrying out assessable development on the Zackas’ land without all necessary development permits being in effect. 17 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1969) 112 CLR 125, 129. 18 South-West Forest Defence Foundation Inc v Executive Director of the Department of Conservation and Land Management and Anor (No 1) [1998] HCA 34; (1998) 154 ALR 405, 408 [15]. -- 8 of 10 -- 9 [31] To the extent the proceeding seeks to restrain the future commission of a development offence, it involves a cause of action under s 180(2)(a), with the court’s power enlivened under s 180(3)(b) of the Planning Act 2016.19 [32] Section 181(2) of the Planning Act 2016 makes it clear that the power to order a person to stop an activity may be exercised whether or not the court considers the person intends to engage, or continue to engage, in the activity, or the person has previously engaged in an activity of the same type. Previous engagement in unlawful development may inform the exercise of any discretion to make an order restraining future conduct, even where such matters occurred before the commencement of the Planning Act 2016. [33] BGM Projects’ Originating Application does not clearly articulate the connection between the acts that occurred prior to 3 July 2017 and the basis for the court being satisfied a further development offence will be committed unless the order is made. The Originating Application also does not clearly identify what development offence the Zackas should be restrained from committing. Despite these deficiencies, I am not persuaded that the Originating Application does not demonstrate a cause of action. The error appears to be one in the expression of the cause of action. It is appropriate that BGM Projects be given an opportunity to re-plead its case. [34] As the Zackas have not discharged the onus, it is unnecessary for me to address the submissions of BGM Projects and the Council resisting the Zackas’ application. Those submissions contend that Benfer is incorrect to the extent that it decided the court does not have power to make an enforcement order remedying acts or omissions that are not a development offence under the Planning Act 2016. Although it is unnecessary for me to deal with the issue, despite the submissions of BGM Projects and the Council, I have misgivings about this court’s power to make an enforcement order remedying acts or omissions that do not constitute a development offence under the Planning Act 2016. Should BGM Projects be required to provide particulars? [35] The Zackas seek an order that BGM Projects provide particulars of the Originating Application, being those requested by the Zackas in paragraphs 1 to 5, 8 to 15, 22, 23 and 25 to 36 of its Request for Further and Better Particulars attached to the letter from Hopgood Ganim Lawyers to Clinton Mohr Lawyers dated 10 August 2018. Should their Originating Application not be struck out or permanently stayed, BGM Projects’ intend to provide some, but not all, of the requested particulars. [36] To the extent that BGM Projects have not indicated an intention to provide particulars, I have serious misgivings about whether the requested particulars are necessary to ensure the Zackas are sufficiently appraised of the case they are to meet at trial. Following delivery of the request for particulars, BGM Projects filed extensive evidence. The Zackas have not identified why the particulars are necessary in light of that evidence. Their Outline of Submissions contains no more than a bald assertion that without the particulars, there is uncertainty as to the case they have to meet. 19 In its written submissions, BGM Projects said it is not alleging an offence under the Planning Act 2016. In the context in which the statement appears, I do not perceive this to be a concession that it does not seek to restrain the future commission of a development offence, or the continuation of acts that would constitute a development offence, under the Planning Act 2009. The statement appears to be directed at the relief that involves remedying past acts. -- 9 of 10 -- 10 Mr Litster QC did not address the matter orally. He did not attempt to make good the assertion by reference to the Originating Application and the evidence. Mr Sullivan QC, on the other hand, helpfully demonstrated how the evidence filed by BGM Projects reveals the nature of its case. [37] In any event, as I intend to give BGM Projects an opportunity to re-plead its case, I do not intend to order the provision of the requested particulars. Should BGM Projects pay the Zackas’ costs of the proceeding? [38] The Zackas application seeks an order that BGM Projects pay the Zackas’ costs of the proceeding. Their application does not identify the grounds on which costs are sought, nor was the matter addressed in their submissions. I am not persuaded that such an order should be made. Conclusion [39] The Zackas have not persuaded me that it is appropriate to make any of the orders sought in its application in pending proceeding. Their application is dismissed. -- 10 of 10 --