Crowther v State of Queensland [2005] QPEC 118

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Crowther v State of Queensland [2005] QPEC 118 PARTIES: CLAIRE CROWTHER Applicant V STATE OF QUEENSLAND Respondent FILE NO/S: 2377/2002 DIVISION: Planning and Environment Court PROCEEDING: Application ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 15 December 2005 DELIVERED AT: Brisbane HEARING DATE: 8 December 2005 JUDGE: Alan Wilson SC, DCJ ORDER: Respondent’s application for costs refused CATCHWORDS: PLANNING LAW – COSTS – wh proceedings frivolous or vexatious – wh costs should be ordered when respondent successfully raises, at trial, matter which determines the application but should have been raised as a preliminary point – nature of discretion under Integrated Planning Act 1997, s 4.1.23, discussed Integrated Planning Act 1997, s 4.1.23 Planning and Environment Court Rules, 1999 Cases considered: Crowther v Queensland [2002] QPEC 079 Crowther v Queensland [2003] QPEC 017 Crowther v Queensland [2005] QPEC 068 Fitzgerald v Logan CC [1993] QPLR 1 T W Hedley Pty Ltd v Cairns City Council[2004] QPELR 159 Wilson v Laidley Shire Council [1994] QPLR 65 COUNSEL: Mr A Morris QC for the Applicant Mr P Freeburn SC for the Respondent -- 1 of 4 -- 2 SOLICITORS: Le Mass Solicitors Crown Law [1] Ms Crowther lives opposite a TAFE College at Park Road, Yeronga and has for some years been concerned about odours and emissions produced by activities at the College associated with the training of future tradespeople there. In 20021 she persuaded a Judge of this court that these things were environmentally harmful and the State was enjoined, by an order of 27 February 20032 , to undertake changes which would, over time, reduce the problems. One of the orders required that by January 2005 the State remove activities involving metalworking to a distance more than 100 metres from Park Road (a date later extended to June 2005). [2] In July 2005 she complained that the activities nevertheless persisted, and sought another order prohibiting them. That application was contested, and refused 3 . Her current application, filed 19 October 2005, sought ‘appropriate penalties for contempt’ for breach of these orders. The matter was set down for a hearing to commence on 7 December 2005. By arrangement, the morning of that day was spent inspecting parts of the College. When the hearing commenced at midday the Respondent raised and argued a preliminary point – that contempt proceedings could not lie against the State. [3] After argument I was persuaded the point was good, gave reasons ex tempore, and adjourned the matter to 8 December to allow Mr Morris QC, for Ms Crowther, to consider her position and obtain instructions. On resumption that morning, he indicated the decision would be appealed and that he did not oppose the making of an order striking out that part of the application of 19 October which sought relief for contempt (a concession which did not, of course, imply any acceptance on his client’s part of the correctness of the decision). [4] The Crown then sought costs, on an indemnity basis. In this Court costs orders are uncommon; the Integrated Planning Act 1997 provides in s 4.1.23(1) that each party will bear its own, subject to certain exceptions set out in sub-section (2) containing circumstances which can enliven a power to award them. The State relies upon the exception in (2) (b), that the proceedings were frivolous, or vexatious. [5] The State’s contentions are that the principle (that contempt cannot lie against the Crown) is well known; and, that Ms Crowther had ample notice of it and that the State would rely upon it to resist this application. Whatever the merits of the first question, there can be no doubt that, in previous judgments, Robin QC, DCJ made his concerns that any breach of injunctions against the State might not be enforceable in the traditional way. In his first decision, he said: 40] The Act binds the Crown (s.22). While it is unusual to contemplate an injunction against the State of Queensland, Mr. Morzone has conceded that one may be ordered, having regard to s.9 and s.10 of the Crown Proceedings Act 1980. Cf Halsbury’s Laws of England (4th) 24:924. Enforcement of an injunction may present problems, but one would suppose that if it were shown that an individual had been knowingly concerned in the court’s order being disregarded, he or she 34 could be dealt with for contempt. I am sure matters would be most unlikely to ever get so far. The relevant authorities, one would expect, would take reasonable steps 1 Crowther v Queensland [2002] QPEC 079 2 Crowther v Queensland [2003] QPEC 017 3 Crowther v Queensland [2005] QPEC 068 -- 2 of 4 -- 3 to ensure the order of the court was complied with. (emphasis added)4 [6] In the Reasons of 20 July 2005, his Honour reiterated his concerns, and warning: There are obvious difficulties in making or enforcing orders against the State of Queensland as a respondent – which were considered at that time. … I note again the difficulties of doing that against a respondent which is the State of Queensland. If individuals can be identified whose activities are calculated to and do result in Court’s order being contravened, I would think that those persons are at risk of being dealt with for contempt, in this proceeding. Ms Crowther’s difficulty is that she has to identify the individuals to be taken to task 5 [7] Mr Freeburn SC, for the State, also points to particulars his client sought from Ms Crowther, and her response, which plainly maintained the claim against the State, rather than individual Crown servants; and, the fact Mr Morris QC was aware the point would be raised. [8] All these things mean, it is said, that the proceeding was always a futility and Ms Crowther and, latterly, her lawyers knew that; and the decision to proceed in those circumstances is properly categorised as frivolous, and vexatious. [9] The proper approach to the discretion arising under s 4.1.23 was explained by White DCJ in T W Hedley Pty Ltd v Cairns City Council6 : if something other than the usual order is sought, the applicant must satisfy the court that one of the conditions or circumstances set out in sub-s (2) applies; and, if it does, the court then decides whether the discretion to depart from the usual rule should be exercised. [10] Cases and texts touching the meaning of the phrase ‘frivolous or vexatious’ and its constituent adjectives were traversed by Row DCJ in Wilson v Laidley Shire Council7 and show that something more than a lack of prospects of success must be apparent – rather, the action must be one that lacked bona fides, and a grievance which could properly be brought before the court. That conclusion, the State says, arises here because of the warnings Robin QC, DCJ gave and the steps the State took to alert the applicant and her lawyers to its intention to argue, and the strength of, the preliminary point. [11] The former were in clear terms, of course, but given in circumstances where the State was prepared to acknowledge its exposure to injunctive relief and did not demur from accompanying remarks from his Honour expressing confidence that matters were unlikely to reach the point where breaches occurred. [12] The steps and warnings relied on by the Crown seem to me, with respect, Delphic and I was unable, in particular, to understand why it waited until the day of the hearing, and after an inspection, before raising the matter in a plain way. This court has power to deal with important preliminary points before trial, and a long- established practice of doing so8 . [13] The history of this matter shows the applicant has a long-standing grievance with the TAFE College and a perception that activities there have the capacity to cause harm (which has been substantiated by a finding of this court) and, in recent years, a 4 [2002] QPEC 079, at para [40] 5 [2005] QPEC 068, at pp 2, 5 6 [2004] QPELR 159, at 160 7 [1994] QPLR 65, at 66-7 8 Planning and Environment Court Rules, 1999, r 20(2)(b); Fitzgerald v Logan CC [1993] QPLR 1, at 4-5 -- 3 of 4 -- 4 conviction that some of those activities persist in breach of earlier orders. Certainly nothing in the history casts doubt upon her bona fides, or suggests that she does not have a genuine belief in the justice of her grievance. [14] While I accepted the Crown argument that the remedy Ms Crowther sought was unavailable, her position cannot be said to be hopeless (in the sense, say, of being unarguable). Once that conclusion is reached, it would be a long step to categorise it as frivolous or vexatious. The fact its fate may be decided elsewhere cannot avail the applicant here, in the context of a claim for costs, but its merits (even if they are categorised as slim) are a factor in the exercise of the discretion. [15] Even if a contrary view is taken, however, there are several reasons why this is not a case in which the discretion should be exercised against the applicant. First, the late hour at which the point was raised: I was unpersuaded there was any good explanation why the Crown could not have brought it on earlier as a preliminary matter. I did not understand the State to be seeking part, and not all, of its costs and to visit the whole of them on the applicant in that circumstance would be oppressive. [16] Second, the history of the matter which includes a substantiated basis for Ms Crowther’s past grievances and, presently, evidence which (while untested, of course, and about which I have formed no opinion) if accepted may establish breaches of orders of this court. Third, the importance of this matter and the public interest which attaches to it – including, now, the question whether anything meaningful can be done if it happens that the State disregards an order dealing with environmental questions. -- 4 of 4 --