Collier & Collier v Brisbane City Council & Anor; Sexton & Sexton v Brisbane City Council & anor [2009] QPEC 40

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Collier & Collier v Brisbane City Council & anor; Sexton & Sexton v Brisbane City Council & anor [2009] QPEC 40 PARTIES: Between And And Between And And BD 2438 of 2005 Allen Collier and Berna Collier (Appellants) Brisbane City Council (Respondent) Maxine Horne (Co-respondent) BD 2439 of 2005 William John Sexton and Pamela Maude Sexton (Appellant) Brisbane City Council (Respondent) Maxine Horne (Co-respondent) FILE NO/S: BD 2438 of 2005; BD 2439 of 2005 DIVISION: Planning and Environment PROCEEDING: Appeal – Application for costs ORIGINATING COURT: Brisbane DELIVERED ON: 26 May 2009 DELIVERED AT: Brisbane HEARING DATE: 15 October 2008 JUDGE: Rackemann DCJ ORDER: -- 1 of 12 -- 2 CATCHWORDS: PLANNING AND ENVIORNMENT COURT – COSTS – FRIVOLOUS OR VEXATIOUS PROCEEDINGS – where submitter appeals against approval were unsuccessfully maintained after amendments to the proposal – whether the whole or part of the proceedings were frivolous or vexatious – whether any discretion ought be exercised – where certain grounds of appeal were unsupported by the appellants expert advice – whether that part of the proceeding frivolous or vexatious Integrated Planning Act 1997 (Qld), s 4.1.23(2)(b) Local Government (Planning and Environment) Act 1990 (Qld) (Repealed) Cases cited: Gold Coast City Council v Yeates [2007] QPEC 7 Juniper Development Corporation Pty Ltd v Jewry [2005] QPEC 97 Mudie v Gainriver Pty Ltd (No 2) [2003] 2 Qd R 271; [2002] QCA 546 COUNSEL: Mr G Gibson QC for the Appellants Mr B D Job for the Respondent Mr P Lyons QC for the Co-Respondent SOLICITORS: Connor O’Meara Solicitors for the Appellants Brisbane City Legal Practice for the Respondent Deacons for the Co-Respondent -- 2 of 12 -- 3 [1] These were unsuccessful submitter appeals against Council’s approval of an application to permit extensions to an existing house. Orders have been made dismissing the appeals and approving the development application, subject to conditions. The successful co-respondent now seeks orders1 that the appellants pay her costs of the appeals or, in the alternative, her costs from 19 October 2007, when the appellants were provided amended plans2 . The respondent does not join in that application 3 . I was informed that specific instances where costs were reserved have been resolved and that the outstanding question relates to the costs of the whole or a substantive part of the proceedings 4 . [2] Section 4.1.23 of the Integrated Planning Act 1997 (IPA) provides that each party to a proceeding in the court must bear the party’s own costs for the proceeding. That general rule is qualified by sub-section 2, which specifies a limited range of circumstances in which the court may make an order for costs. Those circumstances include where the court considers the proceeding, or part of the proceeding, to have been frivolous or vexatious. The co-respondent relies upon that provision to enliven the court’s discretion in this case. [3] It should be noted that s 4.1.23(2) does not specify circumstances in which the court will or must make an order for costs. It specifies circumstances which enliven the discretion to make such an order. The discretion is exercised judicially. [4] That a proceeding, or part thereof, has been unsuccessful does not, without more, lead to the conclusion that it was frivolous or vexatious. The expression was considered by the Court of Appeal in Mudie v Gainriver Pty Ltd (No 2)5 , in the context of the costs provisions of the now repealed Local Government (Planning and Environment) Act 1990. As the co-respondent’s submissions record, the following propositions emerge from Mudie: (a) the words “frivolous or vexatious” should be given their ordinary meaning, unfettered by their meaning in the very different context of striking out or staying proceedings for an abuse of process6 ; (b) the ordinary meaning of the expressions include “of little or no weight, worth or importance”; “not worthy of serious notice”; “characterised by lack of seriousness or sense”; “causing vexation”; “vexing”; “annoying”7 ; (c) something much more than lack of success needs to be shown before a party’s proceedings are frivolous or vexatious8 ; (d) some assistance may be gained from the description (from a different context) of the term “oppressive” as meaning “seriously and unfairly burdensome, prejudicial or damaging”9 ; 1 The unfortunate delay in delivering this judgment was caused, in part, by my extended leave, due to ill health. 2 The amended proposal was the subject of some further amendments at the hearing, to address some minor inconsistencies and drafting errors – see T19 from 17/3/08. 3 T6 from 15/10/08. 4 T1-17 from 15/10/08. 5 [2003] 2 Qd R 271. 6 See [35]. 7 See [35]. 8 See [36]. 9 See [36]. -- 3 of 12 -- 4 (e) similarly, assistance may be gained from the description of the term “vexatious” as meaning to cause “serious and unjustified trouble and harassment”10 ; (f) where a party resists (or, in this case, advances) an appeal by relying on assertions which are groundless, the proceedings are “frivolous or vexatious”11 ; (g) if the court’s time and resources have been employed in exposing groundless bases for an appeal, the appeal is frivolous or vexatious12 ; (h) a proceeding based on “wholly unmeritorious grounds” is “frivolous and vexatious” 13 . [5] It was submitted, on behalf of the co-respondent, that: (a) these appeals were, to a significant extent, founded on allegations which were baseless; (b) many of the allegations on which the appeals were based were contrary to obvious objective facts; (c) issues were raised (and maintained) without any evidence to support them; (d) there was a singular lack of detail and careful analysis in support of any of the contentions raised; (e) no allegation gave rise to any realistic prospect of success in the appeals. [6] The appellants became aware of the development application in February 200514 . They are adjoining owners who decided to co-operate with one another in their opposition to the proposal. They acted in concert and shared costs 15 . They engaged an experienced and respected town planner, Mr Chris Buckley, and an experienced and respected heritage architect, Mr Riddel. They subsequently engaged solicitors with expertise in Planning and Environment Court matters. Each of those assisted with the preparation of the submissions which they made to the Council. Submissions, which attached copies of reports from Mr Buckley and Mr Riddel, and a letter from the appellants’ solicitors, were made in relation to a notifiable code assessment application 16 . Later submission in relation to the impact assessable application referred to the earlier submissions 17 . [7] By a decision notice dated 20 May 2005 the Council approved the development application, subject to certain conditions. The approval required development to be carried out and maintained generally in accordance with the approved drawings and documents 18 . It also required the height of the building not to exceed 8.5 m above natural ground level at any point19 . 10 See [36]. 11 See [61]. 12 See [61]. 13 See [61]. 14 Affidavit of Sexton and Collier para 4. 15 Affidavit of Sexton and Collier para 4. 16 Ex 1 pp 50-79. 17 Ex 1 pp 95-102. 18 See condition 1. 19 Condition 4. -- 4 of 12 -- 5 [8] The subject appeals were brought on 6 July 2005. The grounds contained in each of the notices of appeal were the same 20 . They alleged conflict with a number of Codes; namely the House Code, the Heritage Place Code, the Residential Design- Character Code and the Queensland Development Code (QDC). It was also alleged that there were insufficient grounds to justify approval despite the conflicts, and that approval would cause adverse amenity impacts on the appellants’ land. [9] The appellants also engaged the services of a licensed surveyor, Mr O’Brien, in order to demonstrate that, contrary to representations that had been made to the Council prior to its decision, the proposed extension would, if built strictly in accordance with the approved plans, exceed 8.5 m in height21 . That was ultimately conceded by the co-respondent, who was then directed to give notice of the amended plans upon which she would seek to rely in the hearing of the appeals. The appellants, for whom Senior Counsel appeared, were otherwise unsuccessful in respect of certain preliminary issues which had then fallen for determination22 , but the matters were not beyond argument, and no costs order was then sought or made. [10] The co-respondent delivered amended plans on 18 January 2006. The appellants indicated objection to those changed plans, on the basis that the changes were not “minor” within the meaning of s 4.1.52(2)(b) of the IPA23 . On 11 June 2006, the co- respondent raised a different preliminary point, concerning the relevant heritage place listing. That issue was determined adversely to her on 31 August 2006. [11] Further amended plans were ultimately delivered by the co-respondent on 19 October 2007. Those plans showed a building height of less than 8.5 m. They addressed concerns about the way the proposed extension had been depicted, and whether the appropriate height datum had been used 24 . [12] The appellants decided not to pursue a “minor change” point in respect of the amended plans delivered on 19 October 2007. Instead, they notified grounds of appeal going to the merits of the proposal. The matter then proceeded to hearing, in the usual way. [13] The appellants’ grounds of appeal, as they related to the amended plans, were notified by their solicitors on 14 November 200725 . Mr Sexton and Mr Collier depose that those grounds of appeal, and further particulars provided on 14 December 200726 , were compiled by Mr Buckley, with the assistance of their solicitors, and “seemed open and reasonably arguable”. In deciding to persist with the appeal, notwithstanding the amendments to the proposal, the male appellants say they had advice from Mr Buckley, that even the changed proposal would have unreasonable adverse impacts. They say that they “wanted to air our substantial concerns about the development and why we thought it unfairly intruded on the amenity and aspect of our homes in an unreasonable way”. 20 Ex 1 pp 131-139. 21 Affidavit of Sexton and Collier paras 7 and 8. 22 See reasons published on 18 November 2005. 23 Affidavit of Sexton and Collier para 11. 24 Affidavit of Sexton and Collier para 19. 25 Ex 1 p 220. 26 Ex 1 p 224. -- 5 of 12 -- 6 [14] Mr Buckley subsequently participated in court directed meetings with the planning experts retained by the other parties and in the production of the planning experts’ joint report. He also produced a brief report for the hearing of the appeal, and gave evidence at the hearing, in support of the amenity grounds which had been notified by the appellants. Each of the male appellants also gave evidence at the hearing. [15] As adjoining owners, the appellants had an obvious and legitimate interest in the development application and, in particular, its likely impacts on their amenity. They acted responsibly in obtaining the advice of relevant, experienced and respected experts. They instituted appeals which raised apparently relevant grounds. Allegations made in the course of the appeal (particularly about the height of the development) drove the co-respondent to alter its development proposal, to accommodate legitimate criticism. At the merits hearing, the appellants, who were represented by an experienced solicitor, gave and called evidence in relation to some of the issues (namely the amenity issues). While the appeals have not resulted in the rejection of the proposal, they have led to approval of the development in an amended form, subject to amended conditions. That does not suggest that the proceedings, as a whole, were frivolous or vexatious. [16] In support of the application for costs of the proceedings as a whole, or at least for the period after 19 October 2007, Senior Counsel for the co-respondent made criticism of the basis for the appellants’ continued opposition to the proposal in its amended form. He submitted that this coloured the characterisation of the proceedings as a whole, even from before the amendments were made. [17] The grounds of appeal, as they related to the amended plan, were summarised in paragraph 5 of my reasons published on 13 June 2008 as follows: 1. The proposed extension will have an adverse impact on the amenity of the Sexton and Collier homes in that it will, (a) be opressive and overbearing; (b) be incompatible and inconsistent; (c) adversely impact on privacy; (d) result in overshadowing of the Collier property; (e) adversely impact on the outlook from the Sexton house; and (f) be inconsistent with realistic expectations as to future amenity. 2. The side-boundary set-backs do not comply with the QDC. 3. The proposal would detract from, diminish, and not adequately take into account, the heritage values of Berrimilla. 4. The design and character of the proposed extension is inconsistent with the provisions relating to pre-1946 housing and character. [18] By a further letter of 11 March 2008, the appellants’ solicitor have notice that reliance would also be placed on a certain provision of the planning scheme relating to daylight, sunlight, breezes and privacy. [19] As I recorded at paragraph 7 of my earlier reasons, the only issue actively pursued at the hearing was that regarding adverse impact on amenity of the Sexton and Collier properties. The second issue (the QDC issue) was abandoned by letter dated 10 March 2008. The third and fourth issues (heritage and design/character) were neither abandoned nor actively pursued by the appellants on the hearing. -- 6 of 12 -- 7 [20] In so far as the amenity issues are concerned, it was submitted, on behalf of the co- respondent, that the complaints raised in the appellants’ issues were variously baseless, not supported by a detailed analysis, and/or contrary to objective fact. I was urged to adopt an objective test, in order to conclude that the pursuit of these grounds was frivolous or vexatious despite the appellants’ claims to the contrary. Senior Counsel for the appellants, on the other hand urged, consistently with Mudie27 , that whether proceedings are frivolous or vexatious will turn on the circumstances of the case and that public policy considerations and the interests of justice were relevant. He submitted that there was no absence of good faith such as to call for the making of an adverse costs order 28 and that, while the notion of reasonableness was relevant 29 , the appellants had not conducted themselves unreasonably in the circumstances. [21] Each of the amenity issues were canvassed in my earlier reasons. It is unnecessary for me to repeat what I have previously said. The appellants’ case, in this respect, was not only unsuccessful but may fairly be described as having been, at best, weak or thin. For example, as Senior Counsel for the co-respondent pointed out, reliance was placed on the performance criteria of applicable codes, even where the amended proposal met the criteria, in the preferred way, by adopting the specified acceptable solution. In the course of his evidence Mr Buckley made a number of concessions. His evidence was otherwise subject to legitimate challenge and criticism and was not accepted. It was submitted that the issues raised were “plainly hopeless”30 and that the only amenity issue of any significance (privacy for the Colliers) was almost inevitably going to be a question for the imposition of conditions 31 . [22] Senior Counsel for the appellants placed a deal of emphasis on the public policy considerations which underly the primary rule, that ordinarily, each party bears their own costs. Those considerations were acknowledged in Mudie at [34] as follows: “… It seems likely that one purpose of s.7.6(1) of the Act, which sets out the general rule that each of the parties bear their own costs, consistent with the objectives of the Act, is to ensure that citizens are not discouraged from appealing or applying to the Planning and Environment Court because of fear that a crippling costs order might be made against them. The provision no doubt also recognises the public interest character of some applications to the Planning and Environment Court. For that reason, there is often an understandable judicial reluctance, demonstrated in the planning cases referred to by his Honour, in finding proceedings brought by citizens to be frivolous or vexatious.” [23] Such considerations are relevant although, as Skoien SJDC observed in Juniper Development Corporation Pty Ltd v Jewry32 : 27 See [37]. 28 T1-42 l 35 from 15/10/08. 29 T1-42 l 3 from 15/10/08. 30 T1-21 l 35 from 15/10/08. 31 T1-27 l 35 from 15/10/08. 32 [2005] QPEC 97 at [14]. -- 7 of 12 -- 8 “It is just as important in promoting proper public policy and the interests of justice that clear examples of frivolous or vexatious litigation be met with a costs order so as to discourage such behaviour, as it is that litigation which falls short of that description (even if unsuccessful) be permitted.” [24] The amenity issues notified by the appellants raised matters of obvious interest to them as immediately adjoining neighbours. The pursuit of those grounds was supported by a qualified, experienced, and respected town planner engaged by them. While his evidence was not accepted, I have no doubt that it was given honestly. I accept the submission by Senior Counsel for the appellants, that the court should be slow to make costs orders which may discourage concerned residents from litigating such concerns in this court, because of a fear of possible adverse costs consequences, if their appropriately qualified and experienced expert makes significant concessions or his evidence is found to be not soundly based. Even if there was jurisdiction to award costs, by reason of the unsuccessful pursuit of the amenity issues, I would not, as a matter of discretion, be prepared to make such an order in the circumstances of this case. [25] The appellants were also criticised for notifying an issue about compliance with the QDC and for maintaining that issue until a week before the hearing of the appeal. The issue as notified, was plainly wrong. In his evidence, Mr Buckley took the blame for erroneously raising this as an issue. He candidly admitted that he did not check the QDC at the time 33 . I can only assume that the appellants’ solicitor also did not check the Code at that time. [26] It seems that the QDC issue was the subject of correspondence, from the co- respondent’s solicitor on 6 March 2008. That was responded to by the appellants’ solicitor on 10 March 200834 , when the issue was withdrawn. The issue was without foundation, but its notification appears to have been the result of the appellants being badly advised in this respect. [27] The male appellants depose that their instructions to withdraw this issue were given “reluctantly” 35 . It is unclear why they would be reluctant to withdraw a groundless issue which was apparently only notified in error because of bad advice. They did however, ultimately give the responsible instructions. [28] Attention was also drawn to the negotiations about conditions of approval, which took place after publication of my earlier reasons. The Council formulated draft conditions, which were notified under cover of a letter of 14 July 2008. The co- respondent’s solicitor made comments about those conditions in an email of 3 August 2008. On 18 August 2008 the appellants requested additional conditions concerning privacy for both the Colliers and the Sextons. In particular, they sought frosting (or at least partial frosting) of windows at the level overlooking the Colliers’ residence (in addition to screen fencing). They also sought a 2 m wide band of landscaping on the common boundary with the Sexton residence36 . 33 T114, from 18/3/08. 34 Ex 1 p 234. 35 Affidavit of Sexton and Collier para 22. 36 Affidavit of Sexton and Collier -- 8 of 12 -- 9 [29] The requests were promptly rejected by the co-respondent 37 and the Council38 . They were ultimately withdrawn by the appellants, but not until 13 October 2008, when the appellants’ solicitors sent a letter which advised that “our clients have now concluded, following advice from Queens Counsel and us they will no longer pursue frosting of windows on the Collier side of the proposed extension or the requirement for further landscaping along the Sexton boundary”39 . In the meantime, the co-respondent had obtained a report from its town planning expert dealing with those matters. [30] The requested further conditions related to amenity issues which were of concern to the appellants. In my earlier reasons, I had said that “there can be no significant concern for privacy to the Sexton residence”, but I had also acknowledged that “the Colliers are in a different position” and that “conditions could be imposed upon any approval, to require some shielding…”. The request for frosting may have gone beyond what was reasonably necessary, but it did relate to a relevant issue. The appellants ultimately acted responsibly in giving instructions consistent with the advice they had received, although the co-respondent is understandably concerned about the timeliness of those instructions, and the costs it incurred in obtaining a further brief town planning report in the interim. On balance, I am not prepared to exercise any available discretion against the appellants in this respect. [31] Senior Counsel for the co-respondent sought to rely on the appellants’ conduct overall, as reflecting on the conduct of their appeals generally, including with respect to the amenity issues. Their reluctance to withdraw an admittedly mistaken ground (about the QDC), their delay in withdrawing requests for unnecessary privacy measures and their willingness to notify and maintain heritage and architectural/character issues which their own expert did not support (discussed below) was said to colour the conduct of the proceeding more generally. It was submitted that, when these matters were considered in light of the “very slim and unsubstantiated” nature of the case in support of the amenity grounds, the court ought be satisfied that the proceedings were frivolous and vexatious. [32] While I can see the basis for that submission, I am, on balance, unpersuaded by it. I am prepared to accept that the proceedings, in so far as they related to the amenity grounds, were pursued because of the appellants’ genuine concern for the amenity of their properties and in reliance upon the advice of a duly qualified and experienced town planning expert and ought not attract an adverse order for costs. For the reasons which follow, I have reached a different conclusion about the proceedings in so far as related to other issues. [33] The appellants’ conduct in relation to the third and fourth issues falls into a different category. As Mr Buckley acknowledged 40 , those issues lay outside his area of expertise. His trial report and evidence were in support of the amenity issues in the first of the notified issues 41 . It has already been noted that the appellants had, from the time they made their submission, engaged a different expert, Mr Riddel, who was well qualified to advise on architectural/character and heritage issues. The appellants forwarded the amended proposal to him for his consideration. 37 Ex 12 p 14. 38 Ex 12 p 17. 39 Ex 12 p 162. 40 T115 Cl 1-7 from 18/3/08. 41 T115 Cl 7 from 18/3/08, Ex 7. -- 9 of 12 -- 10 [34] Upon reviewing the amended plans, Mr Riddel informed the appellants, through their solicitor, that he thought the proposal was “a better response to the heritage issue than earlier iterations and may be a reasonable outcome”42 . Thereafter the appellants apparently did not use Mr Riddel’s services. He did not participate in any joint meetings of experts, or any joint report. He did not produce a further report and was not called to give evidence at the hearing. There is no suggestion that the appellants engaged any other like expert in his stead or otherwise were in any position to support these issues. Nevertheless, the appellants: 1. notified issues, then unsupported by their own expert; 2. thereby caused the co-respondent to incur needless expense to address them; 3. did not call evidence at the hearing to support those issues, nor require the other experts (messrs Scott, Mack and Marquis-Kyle) for cross-examination nor make submissions in support of those issues, 4. continued to maintain the issues 43 . [35] In seeking to avoid the conclusion that at least the part of the proceedings relating to those issues was frivolous or vexatious, Senior Counsel for the appellants drew attention to the onus, which lay on the co-respondent, to establish that the appeals should be dismissed44 . It was submitted that it was legitimate for the appellants to notify these issues and put the co-respondent to proof. While it is true that the co- respondent bore the onus, that is discharged in response to grounds notified by the submitter/appellants. The notification of issues without any or any proper foundation and without subsequent attempt to support them, is apt to be seriously and unfairly burdensome to the applicant and may, depending upon the circumstances, properly be characterised as both frivolous and vexatious45 . [36] There will be circumstances in which it is reasonable and appropriate for submitters to take issue with the failure of an applicant/developer to address a relevant consideration. That may be so even where the submitters are not in a position to mount a positive case, supported by expert analysis obtained by them. This is not such a case. [37] Heritage and architectural/character issues were alive from the time the application was before the Council. The Council had approved the application notwithstanding the adverse submissions. All parties to the appeal had the benefit of relevant expert advice. The evidence does not demonstrate that the appellants were advised by Mr Riddel that the amended proposal remained deficient in any particular respect relevant to the third or fourth of their notified issues. Mr Riddel’s advice was that it was an improvement and may be acceptable. As Senior Counsel for the co- respondent submitted 46 , they chose to notify and maintain issues which had no proper support and which their own expert rather suggested were baseless. [38] Further, the issues gave notice of a positive case, namely that the amended proposal “detracts from, diminishes and does not adequately take into account the heritage values” and “does not strengthen pre-1946 housing character through compatible form, scale, materials and detailing”. The appellants have not demonstrated any 42 Affidavit of Sexton and Collier para 21. 43 See T-22 l 48 from 17/3/08. 44 S 4.1.50(2). 45 See, eg, Gold Coast City Council v Yeates [2007] QPEC 7. 46 T1-66 from 15/10/2008. -- 10 of 12 -- 11 proper basis for those contentions. I am satisfied they did not have any proper basis for making them. [39] The male appellants say, in their affidavit, that “the heritage issues continued to concern us” and they decided that the issue would be reviewed once the joint statement of architects was received. When not satisfied by that statement, they delayed instructing their solicitor not to pursue the matter until after the receipt of the trial report of Mr Marquis-Kyle 47 . [40] That explanation is consistent with the issues having been notified without any proper basis and with the knowledge that the co-respondent would thereby be put to the expense of meeting them, through expert evidence. The joint statement did not expose the reasoning of the experts for reaching agreement. It was not required to do so48 and that was not something with which the appellants then took issue. It did make it clear the relevant grounds were not supported by them. In particular, Mr Scott (the Council’s expert), Mr Mack (the co-respondent’s architect) and Mr Marquis-Kyle (the co-respondent’s heritage expert) recorded the following matters of agreement: (a) We agree that the proposed extension will not have an adverse impact on the amenity of adjoining land that is inconsistent with the requirements of the Brisbane City Plan 2000. (b) We agree that the proposed development will not detract from, diminish or inadequately take account of the heritage values of the Heritage Place (66 Markwell Street) as required by the Heritage Place Code, and the surrounding Character Residential Area as required by the Character Residential Area provisions. (c) We agree that the design and character of the proposed extension is compatible in form, scale, materials and detailing with the pre-1946 housing character of the area, and is consistent with the Character Residential Area Provisions and the Residential Design Character code. The appellants nevertheless persisted in maintaining the issues, without any evident effort or intention to mount a case in support of them. [41] The male appellants’ evidence, that upon receipt of Mr Marquis-Kyle’s appeal report, “we decided to instruct Connor O’Meara not to further pursue the matter”49 must be seen in light of the conduct in not then withdrawing the issues. They maintained the issues which they say they had decided not to pursue. Senior Counsel for the appellants confirmed that there is no suggestion that the appellants’ solicitor acted other than in accordance with instructions, by maintaining the issues 50 . In seeking to minimise the significance of that, Senior Counsel for the appellants pointed out that no further costs were incurred after the delivery of Mr Marquis-Kyle’s appeal report. As Senior Counsel for the co-respondent submitted however, the entirety of the appellants’ conduct, in this respect, is 47 See para 21 of the affidavit. 48 PD 1 of 2006 referred to joint reports containing a statement of reasons for any disagreement. 49 Para 21 of the affidavit. 50 T1-68 from 15/10/2008. -- 11 of 12 -- 12 relevant. Their conduct in maintaining the grounds sheds light on their conduct in relation to these issues generally. [42] I am satisfied that this part of the proceeding was frivolous and vexatious and warrants the exercise of discretion in favour of an adverse costs order. The co- respondent’s application for costs will be otherwise dismissed. I will hear from the parties as to the appropriate form of order. -- 12 of 12 --