CQ Innovations Pty Ltd v Cairns City Council & Ors [2008] QPEC 43

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: CQ Innovations Pty Ltd v Cairns City Council & Ors [2008] QPEC 043 PARTIES: CQ INNOVATIONS PTY LTD (ACN 112 207 646) Appellant/Applicant v CAIRNS CITY COUNCIL Respondent CHIEF EXECUTIVE, DEPARTMENT OF MAIN ROADS First Co-Respondent by Election CHIEF EXECUTIVE, DEPARTMENT OF NATURAL RESOURCES AND WATER Second Co-Respondent by Election THE CHIEF EXECUTIVE OF THE DEPARTMENT OF THE ENVIRONMENTAL PROTECTION AGENCY Third Co-Respondent by Election JOHN & ELIZABETH ROSSI, MICHAEL & JANE GREENWOOD, PHILLIP AMADIO, SUSAN SANT, PAT HICKLING, PAUL ROSSI, ESTHER DEAK & IAN McCALLUM AND THOMAS & JOYCE DEAR Fourth Co-Respondent by Election ALOOMBA AND FISHERY FALLS PROGRESS ASSOCIATION Fifth Co-Respondent by Election MULGRAVE LANDCARE & CATCHMENT GROUP Sixth Co-Respondent by Election FILE NO/S: 289/2007 DIVISION: Planning & Environment Court of Queensland PROCEEDING: Application in a Proceeding ORIGINATING COURT: Planning & Environment Court of Queensland, at Cairns DELIVERED ON: 10 July 2008 -- 1 of 3 -- 2 DELIVERED AT: Brisbane HEARING DATE: 20 June 2008 JUDGE: Alan Wilson SC, DCJ ORDER: That the respondent pay the appellant’s costs of and incidental to the application filed 10 June 2008 (including the costs of the appearance on 20 June) assessed on the standard basis CATCHWORDS: PLANNING LAW – PRACTICE & PROCEDURE – APPLICATION FOR COSTS – whether non-compliance with directions of the Court enliven the discretion in s 4.1.23(2) of IPA Integrated Planning Act 1997, s 4.1.23(2) Cases considered Gauci Developments (Qld 1) Pty Ltd v Bundaberg City Council [2008] QPEC 41 Sherringham Holdings Pty Ltd v Maroochy Shire Council & Ors [2007] QPELR 217 COUNSEL: M J O’Connor, Solicitor for the Appellant/Applicant D P Kevin, Solicitor for the Respondent J S Brien of Counsel for the 2nd Co-Respondent by Election R M Owen, Solicitor for the 4th , 5th & 6 th Co-Respondents by Election SOLICITORS: Connor O’Meara Solicitors for the Appellant King & Company for the Respondent Crown Law for the 2nd Co-Respondent by Election Muller Lawyers for the 4th , 5th & 6 th Co-Respondents by Election [1] The appellant seeks costs from the Council for its failure to comply with a particular part of a lengthy Directions Order made by His Honour Judge White in Cairns on 20 March 2008. The large number of parties and the complexity of the issues meant that Order was longer and more complex than those usually made in the Court. The appellant’s particular complaint was that Council failed to comply with clause 11 which required all parties to exchange lists specifying the name and field of expertise of each expert who would give evidence in relation to the appeal, by 9 May 2008. Council did not in fact comply until 17 June 2008. [2] In the interim the appellant brought an application in a pending proceeding, under rule 25 of the rules of this Court seeking that list, and costs. The application was filed on 10 June. [3] At the hearing on 20 June it was plainly necessary to vacate certain parts of the previous Order made by His Honour Judge White and to make new Directions Orders re-setting the timetable for events after delivery of the list of experts. That was accomplished at the hearing after minor disputes within a relatively small compass about dates and the new timetable proposed by the appellant. -- 2 of 3 -- 3 [4] The costs sought by the appellant against Council were reserved. The affidavit material filed by the appellant shows its solicitors wrote to Council’s solicitors on 21 May, noting the non-compliance which had already arisen and asking for Council’s list of experts by Friday 23 May. There was no reply. On 29 May the appellant’s solicitors wrote again pointing out there was a mediation scheduled, according to the Directions Order, for 6 June and seeking an urgent response. Again, none was forthcoming. On 3 June the appellant’s solicitors wrote, yet again, advising they had unilaterally cancelled the mediation and advising they intended listing the matter before His Honour Judge Griffin in Cairns on 20 June “…so that the timetable can be rescheduled given your client’s failure to comply with the Orders made by the Court on 20 March 2008”. [5] Because His Honour Judge Griffin SC was not sitting in Cairns on 20 June the matter was heard in Brisbane on that day. In the interim, of course, Council had taken the step of providing the list of experts. [6] No affidavits were filed explaining Council’s default in that respect. It seems to have been a product of the local authority amalgamations and elections which occurred earlier this year and in that event is unsurprising. That said, however, the circumstances appear to clearly attract the operation of discretion arising under s 4.1.23(2)(e) of the Integrated Planning Act 1997, which gives the Court a discretion to award costs when one party has incurred them because another has defaulted in the Court’s procedural requirements. [7] A question has arisen, as a consequence of some obiter remarks in a recent judgment of this Court1 , whether the provision permits orders to be made for part of the proceeding as opposed to the whole of it. The argument was not advanced in this matter and, for reasons explained in my recent decision in Gauci Developments (Qld 1) Pty Ltd v Bundaberg City Council [2008] QPEC 41 I do not think it is an impediment to an order of the kind the appellant seeks. [8] Those matters aside this is a plain case of default, without explanation or excuse. In the circumstances I think the discretion must be exercised in the appellant’s favour. The respondent, then, is ordered to pay the appellant’s costs of and incidental to the application filed 10 June 2008 (including the costs of the appearance on 20 June) assessed on the standard basis. 1 Sherringham Holdings Pty Ltd v Maroochy Shire Council & Ors [2007] QPELR 217 -- 3 of 3 --