Department of Transport and Main Roads v Brisbane City Council & Anor & Orb Holdings Pty Ltd [2011] QPEC 108

1-1 [2011] QPEC 108 PLANNING AND ENVIRONMENT COURT JUDGE ROBIN QC P & E Application No 1691 of 2011 DEPARTMENT OF TRANSPORT AND MAIN ROADS Applicant and BRISBANE CITY COUNCIL AND ANOR First Respondent and ORB HOLDINGS PTY LTD Second Respondent BRISBANE ..DATE 22/07/2011 ORDER CATCHWORDS Sustainable Planning Act 2009 s 457 Integrated Planning Act 1997 s 4.1.23 Costs awarded to a developer against applicant for declaration its development approval was invalid on withdrawal of that application - applicant lacked standing because its concurrence agency response came too late, as applicant had been informed - its application was "vexatious" in the circumstances - no request for relief in respect of lateness of the purported concurrence agency response -- 1 of 9 -- 1-2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: The issue is whether the appeant should be ordered to pay the second respondent’s costs of this application which is not going to proceed. It sought a declaration that a development approval granted by the first respondent to the second was invalid. I am not certain that the Court would necessarily be precluded from finding a power to award costs by reference to paragraph (a) of section 4.1.23(2) of the Integrated Planning Act 1997 (IPA) or of its successor provision section 457(2) of the Sustainable Planning Act 2009, merely because the application for costs was based on the following paragraph (b) which applies if the court considers a proceeding to have been frivolous or vexatious. Mr Fynes-Clinton is correct that the section should be construed strictly against parties seeking costs so that no relevant jurisdiction can arise on the basis that proceedings might be “oppressive” or, more relevantly, an “abuse of process” which Mr Fynes-Clinton suggested Mr Davis, appearing for Orb Holdings (the co-respondent developer), may have been putting forward as a basis for jurisdiction to order costs. Mr Davis has clarified that, to the extent that he referred to abuse of process, which he contended was an apt characterisation of the proceeding, he was using that circumstance to establish vexatiousness. There are remarkable features of the proceeding, not all of which are relevant today, one of them being that it was commenced against Mr Davis' client by the firm who were its solicitors. -- 2 of 9 -- 1-3 ORDER 1 10 20 30 40 50 60 The interest the applicant Department has in a development application for an office or similar building on Gympie Road near the intersection with Rode Road relates to the possibility that land will need to be taken there for road widening purposes. The Department was entitled to provide a concurrence agency response in respect to the relevant development application by 4 January 2010. That step was not taken until 8 January 2010, which it is conceded was too late. The Department's requirement in its response was that a preliminary approval only be granted by the Council, with a view to protecting the Department's and the public interest in preserving the possibility of acquiring land for road widening. A negotiated decision notice was the way in which the development application was resolved. The Council granted a development approval on the basis that the Department had acted too late. That approval is the subject of Orb Holdings appeal, 1492 of 2011, which, as it happens, was mentioned before the court today. It relates to infrastructure charges. The Department is a party. It is apprehensive that it will not be in a position to ventilate its concerns in an effective way in that appeal and adopted in the present proceeding a collateral means of challenging the Council's decision. While Orb Holdings’ proceeding was the only one, it enjoyed an important control over matters on the basis that it could -- 3 of 9 -- 1-4 ORDER 1 10 20 30 40 50 60 withdraw its appeal at any time and enjoy the benefit of the approval in the negotiated decision notice. The present proceeding was designed to attack that negotiated decision notice. The material before the court indicates that from a very early stage the untenability of the Department's position had been made known to it. In an ironic twist, it was the Department's solicitors who filed the Department's application, who, as Orb's solicitors, on 22 February 2010, wrote to the Council a letter, copied to the Department, clearly indicating the difficulties in the Department's position. ... HIS HONOUR: That letter purports to "confirm that the legal position is that: (1) the letter does not constitute a formal referral agency response; (2) the letter is not a direction to Council to only issue a preliminary approval; (3) the letter is not a properly made submission and; (4) the Council must proceed to decide the application as if DTMR had no concurrence agency requirements." The reference was to section 3.3.16(3) of the IPA which makes it obscure whether the point was being made which, it seems to me, is the killer one, that the Department had issued its purported response too late, given the time limit imposed by subsection (i). ... -- 4 of 9 -- 1-5 ORDER 1 10 20 30 40 50 60 HIS HONOUR: The lateness point was clearly identified and, indeed, given effect to in the negotiated decision notice of 1 April 2011 as appears from item 64 at page 731 of Mr Davis' affidavit in support of an application of his client filed on 22 June 2011 seeking the summary dismissal of the Department's application. Under “Concurrence Agencies” one reads: "The Department of Transport and Main Roads provided an out of timeframe response to Council. DTMR's late correspondence dated 8 January 2010 is attached for records purposes only as it is understood to be invalid for the purposes of IDAS." A “conditions” appeal was filed by Thomsons Lawyers, who were then acting for Orb Holdings on 9 May 2011. On 24 May they entered an appearance in this proceeding for that company. They have now been replaced by Mr Davis' firm. Two days later, the conflict of interest of the Department's original solicitors having been noticed, a notice of change of solicitor on the applicant's side was filed by the firm instructing Mr Fynes-Clinton. By 16 June 2011, Mr Davis had prepared an application seeking, as well as a declaration, an order that the Department's proceeding be dismissed with indemnity costs. That was accompanied by Mr Davis' very long affidavit. The documents were posted in to the court, I accept, around 16 June 2011, although, inexplicably, the correspondence section of the file does not include the covering letter. It does include letters -- 5 of 9 -- 1-6 ORDER 1 10 20 30 40 50 60 transmitting other documents to the court. Inexplicably, the application and affidavit are documents 10 and 11 on the court file. They follow document 6 which is a notice of discontinuance filed by the Department's new solicitors on 17 June 2011. They also follow on the court file document 8 which is an application for costs by Mr Davis' client filed 1 July 2011, supported by another affidavit. There is no point, in the circumstances, in his proceeding to seek summary dismissal of the Department's application. It is patent that mature consideration has led the Department to the view that its application is devoid of promise, or nearly so, and always was. Mr Fynes-Clinton has indicated to the court that the Department in other ways may have gained the protection that it sought in respect of the developer's site. What he suggested might have saved the application is relief for the Department under a provision such as section 4.1.5A of IPA or section 440 of the Sustainable Planning Act 2009 (SPA) or section 820 of the SPA, the effect of which could be to allow the Department more time for making its response. As Mr Davis says, that is adverted to as a mere possibility. It is not something that has, at any time, been sought by the Department. Those considerations bear on whether the court has a power to order costs against the Department which Mr Fynes-Clinton concedes under any ordinary costs regime applying in civil -- 6 of 9 -- 1-7 ORDER 1 10 20 30 40 50 60 litigation it would have. Section 4.1.23, as noted, provides in subsection (1) for the familiar “no costs” regime. It is well known that as soon as litigants become free of that constraint, costs are likely to be awarded in the ordinary way, for example, in appeals to the Court of Appeal. Is the proceeding vexatious? The interesting argument on this issue involved examination of the Court of Appeal's decision in Mudie v. Gainriver Pty Ltd (No 2) [2003] 2 Qd R 271. Mr Fynes-Clinton, it seemed to me, favoured the definition of “vexatious” set out in paragraph 59 of the reasons of Williams JA which gives the meaning, "causing or tending to cause vexation, annoyance or distress, annoying, troublesome to; in law, of an action instituted without sufficient grounds for winning, purely to cause trouble or annoyance to the defendant." That definition tends to focus on the motivation of the litigant coming under criticism. It seems to me that the approach this court ought to take, given that the words "frivolous or vexatious" are not defined in the legislation, is indicated in paragraph [36] of the majority reasons where reference is made to a High Court case in which Deane J stated that "vexatious means productive of serious and unjustified trouble and harassment". That meaning is said to have been apparently approved by four Judges of the High Court in a later case of Voth v. Manildra Flour Mills Pty Ltd. That meaning, in my view, appropriately has regard to the impact of a proceeding on the defendant or respondent, which I think is important. That impact cannot be disregarded -- 7 of 9 -- 1-8 ORDER 1 10 20 30 40 50 60 simply because it is not something that the moving party deliberately sets out to achieve. In my opinion, the Department's proceeding can properly be characterised as vexatious, particularly as it was not accompanied by any application for relief that might have made its purported concurrence agency response a valid or effective one. Thus, I think the court's power to order costs arises. Mr Davis I took to suggest that the finding of vexatiousness would justify an award of indemnity costs. It cannot be the case that the mere identification of circumstances giving rise to a power to order costs leads prima facie to a conclusion that those costs ought to be awarded on the indemnity basis. There were some suggestions against Mr Davis that he had acted precipitately in sending the earlier application of his client off for filing together with the enormous affidavit, which I accept had been in preparation for days beforehand, in circumstances where what was called a “telephone tag” exercise was going on with attempts being made on behalf of the Department's representatives to speak to Mr Davis. The contact was not made. The purpose of those attempted contacts was, presumably, to resolve matters without the need for Orb Holdings to make its threatened application. It seems to me that the costs had largely been incurred in any event. Under the new filing fee system applicable in the court, there would not have been filing fees and the like. -- 8 of 9 -- 1-9 ORDER 1 10 20 30 40 50 60 It is a fairly close question what ought to be done given that what the Department has done was seek to invalidate a valuable development approval obtained by a private citizen or company on the basis of a purported concurrence agency response which it had been placed on notice was invalid. However, I am not persuaded that what had been done or attempted was so heinous that indemnity costs ought to be awarded. In this regard, it does become important to have regard to the motivation and intentions of the party liable to pay costs. Although the Government is expected to be a model litigant, I am not prepared in the present circumstances to say that it is in a special or more exposed situation than a private litigant. There ought to be an order in terms of paragraph 1 of the application filed on 1 July 2011 with the words "on an indemnity basis" deleted. ... ----- -- 9 of 9 --