Bigini Pty Ltd v Brisbane City Council [2017] QPEC 54 (2018) QPELR 48

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Bigini Pty Ltd v Brisbane City Council [2017] QPEC 54 PARTIES: BIGINI PTY LTD (appellant/applicant) v BRISBANE CITY COUNCIL (respondent) and CHARLES KULCSAR (first co-respondent by election) and GENERIC INTERNATIONAL PTY LTD CAN 160 106 918 (second co-respondent by election/respondent to the application) and JESSIE ONG (third co-respondent by election/respondent to the application) and CHUCHEEP SUNAPHO (fourth co-respondent by election/respondent to the application) and ANDREW BRANJERDPORN (fifth co-respondent by election/respondent to the application) and LUCINDA JAMES (sixth co-respondent by election) FILE NO/S: 3882 of 2016 DIVISION: Planning and Environment -- 1 of 8 -- 2 PROCEEDING: Application in pending proceeding ORIGINATING COURT: Brisbane DELIVERED ON: 31 August 2017 DELIVERED AT: Brisbane HEARING DATE: 31 August 2017 JUDGE: Rackemann DCJ ORDER: The second, third, fourth and fifth co-respondents pay those costs of the appellant of the adjournment of the mediation of the 6th of July, limited to those costs which were thrown away by reason of the non-attendance of the second, third, fourth and fifth co-respondents by election that day to be assessed on the standard basis, including costs of the application to be assessed on the standard basis. CATCHWORDS: PLANNING AND ENVIRONMENT – PRACTICE AND PROCEDURE – COSTS – where co-respondents by election failed to attend a court ordered without prejudice meeting – where appellant seeks costs thrown away COUNSEL: J P Hastie for the applicant R Phua as agent for the second and third co-respondents by election A Branjerdporn on his own behalf and as agent for the fourth co-respondent SOLICITORS: Macpherson Kelley for the applicant -- 2 of 8 -- 3 [1] This is an application for costs thrown away as a result of an adjourned mediation. The application was brought by the appellant against the second, third, fourth and fifth co-respondents by election, who did not attend a mediation on the 6th of July of this year. Each of those parties is self-represented, or, in the case of the second co- respondent by election, represented by an agent, being a director of the company. [2] On the 13th of April 2017, the court made orders by which the parties and their legal representatives were to attend, participate in and act reasonably and genuinely in a without-prejudice meeting to be conducted by the ADR Registrar, at a time and venue to be nominated by the ADR Registrar after consultation with the parties. That meeting was to take place on or before the 22nd of May 2017, and the appeal was to be listed for further review on the 24th of May 2017. [3] As it happens, the meeting was unable to be scheduled on or before the 22nd of May 2017 because no suitable date could be arranged between the parties. As a consequence, the court made an order, with the consent of the parties, adjourning the matter for further review to the 12th of July 2017, and the ADR Registrar gave notice to the parties nominating the 6th of July 2017 as the date for the without-prejudice conference. That notice also notified the time and place for the conference. [4] The conference was attended by representatives of the appellant, including its director, its legal representatives and expert consultants, and also by representatives of the respondent, but none of the co-respondents by election or their representatives were in attendance. The first and sixth co-respondents by election had given prior notice of their inability to attend and were not expected, but that was not the case for the second to fifth co-respondents by election. The mediation was adjourned. The appellant seeks its costs thrown away by reason of the adjournment. -- 3 of 8 -- 4 [5] The power of this court to make orders as to costs has been the subject of recent statutory change. It was submitted, on behalf of the appellant, that the consequence of the relevant statutory provisions is that this application is governed by the general costs discretion under the Sustainable Planning Act. It is unnecessary, however, for me to traverse those provisions in any detail because, for the reasons which I will give, the result of this application would not differ even if it was considered under the more constrained costs powers now contained in the Planning and Environment Court Act 2016, since, for reasons which follow, in my view, the co-respondents by election did not properly discharge their responsibilities in relation to the proceeding in relation to their non-attendance at the without-prejudice meeting. [6] The second and third co-respondents by election were represented by a single agent and relied upon two affidavits by a Ms Ong. It was uncontroversial that the ADR Registrar had set the date, time and place for the without-prejudice conference in response to a request which had been sent by the solicitor for the appellant. That request had been copied to the email addresses of the other parties and followed, relevantly, their email to the solicitor for the appellant that, “tentatively”, they would be able to attend a meeting on that date. Whilst their correspondence to the solicitor for the appellant used the word “tentatively”, the ADR Registrar’s booking was not tentative, and, on being notified of the nominated time, day and place, they ought to have attended. [7] The explanation for not having attended was that, as between the husband and wife who were dealing with matters on behalf of the two parties, Ms Ong was the one, at that time who was dealing with matters, that she was unwell and was distracted with her illnesses and simply did not become aware of the email from the ADR Registrar. The appellant, understandably, did not wish to be seen to be unsympathetic towards -- 4 of 8 -- 5 Ms Ong and did not question that she was ill, but pointed out that there was a lengthy period of time between the ADR Registrar’s email on the 29th of May and the without-prejudice meeting on the 6th of July that the parties did not appear at. If Ms Ong was ill and incapable of dealing with the litigation during that period, then, acting reasonably, she ought to have made arrangements for her husband to deal with the matters during that time or for someone else to deal with the litigation during that time, particularly in circumstances where there had already been express communication in relation to a without-prejudice meeting for the 6th of July and there was every reason for the parties to expect that there would have been correspondence arriving in relation to the litigation. [8] It may be noted that Ms Ong herself was unable to be present in court today because she is overseas obtaining treatment and she sensibly arranged for her husband to be present in court today to act as her agent. It seems to me that, acting reasonably at the time of these matters, she should similarly have made arrangements for someone to deal with the matters if she was unable to do so. It seems to me that the explanation which has been proffered, although perhaps understandable, does not provide a satisfactory explanation for the conduct of the parties concerned. [9] Turning to the fourth and fifth co-respondents by election, the explanation for their non-attendance is different and relates to what may be described as a breakdown of communication. When those parties elected to become co-respondents in the proceedings, they did so by filing a notice of election. That notice of election contained an email address. That email address was the then email address for the fifth co-respondent by-election. It is now said that the fifth co-respondent soon thereafter changed his email address for various reasons which it is unnecessary to go into. However, at the time he did nothing to give notice of that change to the court. -- 5 of 8 -- 6 It is only in recent times that a notice of change of address has been formalised. Further, in court today, he expressly disavowed any suggestion that he told the solicitors for the appellant that the address, as it appeared on the notice of election, had become superseded or incorrect. [10] As it happens, however, the solicitors for the appellant obviously became aware, at some stage, that he had another email address because they sent some emails to him which were addressed to both the email address which was on the notice of election as well as to another email address, which he now says is his correct email address and which is now the email address which is on his recently filed notice of change of address for service. [11] The reason why the fourth and fifth co-respondents by election did not attend the mediation is because when the ADR Registrar gave notice of the day, time and place for the without-prejudice conference, he communicated to the parties and, relevantly, the fourth and fifth co-respondents by election by use of the email address which was on the notice of election as filed in the court, rather than to the additional email address which has only subsequently been notified to the court. [12] There is, of course, no reason why the ADR Registrar should have been corresponding to the parties using anything other than the address which was formally notified by them to the court. Rather than accepting that he was to blame for failing to notify the court of his new email address, the fifth co-respondent by election attempted to lay the blame at the feet of the solicitors for the appellant by pointing out that when they communicated with the ADR Registrar in order to request him to fix the time, place and date for the without-prejudice conference, that they did so in an email which used only his “old” email and did not also use his “new” email, even though they had used both on other occasions. -- 6 of 8 -- 7 [13] It might well have been the case that, had they used both, then perhaps the ADR Registrar might have used both in his reply. Whether he would have or not is perhaps a matter of speculation. However, there is no reason why the appellant should be required to have used both emails or why any adverse motive should be ascribed to them in only using one, particularly in circumstances where, as I have already noted, the fifth co-respondent by election, in the course of submissions today, expressly disavowed any suggestion that he had ever told the solicitors for the appellant that his “old” email address was no longer being used. [14] It seems to me that, in circumstances where he had been involved in previous communications in which he had consented to the mediation being set down for the 6th of July he had every reason to be put on inquiry at least, if he had any uncertainty as to whether the meeting was progressing on that day or not. To the extent to which he did not appear on that day because of a lack of notice as to the time and place, that lack of notice was due to his own failure to act reasonably in giving formal notice to the court and to the parties of his change of contact details in respect of the litigation to which he was a party. [15] In the circumstances, I consider that an order for costs should be made to compensate the appellant. [16] The remaining question is what the appellant should be compensated for. The co- respondents by election submit that the appellant is not out of pocket for the entirety of the costs of the day. They point out that they are supporting the respondent’s position in the appeal and that the without prejudice conference did apparently proceed to some limited degree and so they question whether the appellant’s costs were entirely thrown away on the day. -- 7 of 8 -- 8 [17] Counsel for the appellant conceded that the meeting did progress to a limited degree, although he contends, from the bar table, that the matters which the co-respondents by election raise range far beyond what the respondent raise and that the day was largely wasted. In the circumstances, it seems to me that the question of what indeed was thrown away should be the subject of assessment, and that the costs order should be limited. [18] I will order that the second, third, fourth and fifth co-respondents pay those costs of the appellant of the adjournment of the mediation of the 6th of July, limited to those costs which were thrown away by reason of the non-attendance of the second, third, fourth and fifth co-respondents by election that day to be assessed on a standard basis, including costs of this application on a standard basis. -- 8 of 8 --