Ballymont Pty Ltd v Ipswich City Council (No 2) [2002] QCA 454 [2003] 2 Qd R 232; QPELR 281; (2002) 124 LGERA 373

SUPREME COURT OF QUEENSLAND CITATION: Ballymont P/L & Anor v Ipswich City Council & Ors [2002] QCA 454 PARTIES: BALLYMONT PTY LTD ACN 010 212 085 (first appellant/first appellant) ROBERT LEWIS SIMMONS (second appellant/second appellant) v IPSWICH CITY COUNCIL (respondent/first respondent) MARK STOCKWELL (first co-respondent/second respondent) STOCKWELL BUILDING AND DEVELOPMENT (a firm) (second co-respondent/third respondent) STATE OF QUEENSLAND (third co-respondent/fourth respondent) FILE NO/S: Appeal No 6697 of 2001 P & E Appeal No 4090 of 2000 DIVISION: Court of Appeal PROCEEDING: Planning and Environment Appeal – Further Order ORIGINATING COURT: Planning and Environment Court at Brisbane DELIVERED ON: Judgment delivered 28 June 2002 Further order made 1 November 2002 DELIVERED AT: Brisbane HEARING DATE: 5 April 2002 JUDGES: McMurdo P, Fryberg and Wilson JJ Joint reasons for judgment of Fryberg and Wilson JJ; separate reasons for McMurdo P, concurring as to the orders made. ORDER: 1. Application dismissed with costs. 2. Order that the formal order of this court made herein on 28 June 2002 be amended by deleting the names of the participating judges and inserting in lieu “McMurdo P, Fryberg and Wilson JJ”. CATCHWORDS: APPEAL – Practice and procedure – Queensland – Powers of court – Costs – Order in favour of respondent local authority – Ambit of discretion as to costs under UCPR – Whether objector appeals should be treated differently – Whether local authority must demonstrate special interest -- 1 of 10 -- 2 Uniform Civil Procedure Rules (Qld), r 689, r 766(1)(d) Local Government (Planning and Environment) Act 1990 (Qld), s 7.6 Tamborine Mountain Progress Association Inc. v Beaudesert Shire Council (1995) 2 Qd R 231, considered Wyatt v Albert Shire Council [1987] 1 Qd R 486, followed. COUNSEL: D R Gore QC, with R S Litster, for the appellants R N Traves for the first respondent P J Lyons QC, with J J Haydon, for the second and third respondents No appearance for the fourth respondent SOLICITORS: Stephen Goodfellow for the appellants City Solicitor – Ipswich City Council for the first respondent Clayton Utz for the second and third respondents Crown Solicitor for the fourth respondent [1] McMURDO P: The relevant facts and issues in this costs application are fully set out in the reasons of Fryberg and Wilson JJ. [2] The third co-respondent, the State of Queensland, did all it reasonably could to limit its costs on this appeal. The respondent, the Ipswich City Council, had a legitimate interest as a party in this appeal and did not conduct its response in a way which would disentitle it to the usual costs order. The appellant has not demonstrated sufficient reasons in this case to depart from the usual order articulated in UCPR r 689 that costs follow the event. [3] I agree with Fryberg and Wilson JJ that the application for costs should be dismissed with costs. [4] FRYBERG and WILSON JJ: The history of the matter When the court delivered judgment in this appeal on 28 June 2002 the following orders were pronounced: “1. Appeal dismissed 2. Appellants to pay the respondents’ costs of and incidental to the appeal, to be assessed.” Pursuant to s 42(4) of the Supreme Court of Queensland Act 1991, and in accordance with its usual practice, the court was constituted by a single judge of appeal for the purpose of delivering the judgment. No party had suggested during the argument that there was any matter relevant to the exercise of the court’s discretion as to costs apart from the obvious one of success or failure on the appeal. The order pronounced reflected that position. [5] Counsel for the unsuccessful appellant (“Ballymont”) then informed the judge that his client wished to submit that there should be no order in respect of the costs of the first respondent, the Ipswich City Council (“the Council”). He said nothing about the fourth respondent, the State of Queensland. When His Honour pointed out that he had no power to change the order of the court, counsel for Ballymont -- 2 of 10 -- 3 suggested that it would apply for the vacation of the order and sought nothing further. Later that day a formal order embodying the orders pronounced was prepared in the office of the registrar and filed. That order incorrectly identified the judges who made it. [6] By a letter received in the registry on 8 July 2002, Ballymont sought directions for the delivery of submissions about whether the costs order should be vacated in relation to the Council and Queensland and what, if any, order should be made in lieu. The court gave directions and written submissions were received from those parties. These are our reasons for the decision on those submissions. [7] The nature of the appeal and the parties to it were identified in the reasons for judgment of Fryberg J: “[2] FRYBERG J: This appeal has been brought by leave from a decision of Judge Quirk in the Planning and Environment Court. The proceedings before that court resulted from the decision of the present first respondent, Ipswich City Council, (“the Council”) to approve a development application made by the present second and third respondents (“Stockwell”) in respect of a tavern proposed to be built on land (“the subject land”) fronting Warwick Road, in the suburb of Yamanto, on the southern approaches to Ipswich. As Warwick Road is a main road, the State of Queensland wished to have conditions imposed on any approval of the application, and consequently it became a party to the proceedings in the Planning and Environment Court. It took no part in the appeal to this court. [3] The appellants, Ballymont Pty Ltd, (“Ballymont”) are the owners of a shopping complex called the Yamanto Seven-Day Centre. That complex contains a new tavern known as Yamanto Tavern. It is part of a shopping centre (whose major tenant is Woolworths) located on Warwick Road near its intersection with the Cunningham Highway, approximately 1.25km south- west of the subject land. [4] The leave to appeal is limited to alleged errors of law.” [8] Shortly before the hearing of the application for leave to appeal, the solicitor for Ballymont had written to the solicitors for the Council and for Queensland in the following terms: “In accordance with the authorities, my client takes the view that Stockwell and Stockwell Building & Development are the only interested parties other than my client in the above Application and that there is no need other than for a formal appearance for other parties to be a party to argument in the above Application.” The Crown Solicitor had responded that his client did not intend to take an active role in the application for leave. When the application was heard on 10 September 2001, counsel for Queensland announced that his client would abide the order of the court and the outcome of the appeal. He then withdrew and there was no further appearance on Queensland’s behalf, although there was further correspondence between the solicitor for Ballymont and that for Queensland. The Council was -- 3 of 10 -- 4 represented at and actively participated in both the application for leave and the subsequent appeal, although in the application the submissions on its behalf simply adopted those made on behalf of Stockwell. Ballymont’s submission [9] In these circumstances Ballymont submitted that the Council: (a) is in materially the same position as Queensland; (b) did not, and cannot, identify any special interest in the outcome of the appeal; (c) knew, or ought to have known, the ambit of the arguments that would be presented on behalf of Stockwell; (d) advanced no submission fundamentally different from those advanced on behalf of Stockwell; (e) approached the questions raised in a more abbreviated way than, and otherwise adopted the submissions made by, Stockwell. [10] It further submitted: “14. There is no material difference between the position of the Council in this case and the position of the Local Governments that were denied costs in Tamborine Mountain Progress Association Inc. v Beaudesert Shire Council1 and H A Bachrach Pty Ltd & Ors v Council of the Shire of Caboolture and Anor. 2 15. In the circumstances, it is respectfully submitted that: (a) the costs order recorded in the Reasons for Judgment delivered on 28 June 2002 should be vacated insofar as it requires the Appellants to pay the First and Fourth Respondents’ costs of and incidental to the Appeal; (b) there should be no order as to the First and Fourth Respondents’ costs of and incidental to the Appeal.” Costs for the State of Queensland [11] Queensland, through the agency of the Department of Main Roads, had an interest in the development application. The Department was a concurrence agency for the application within the meaning of the Integrated Planning Act 1997 and had imposed four conditions on the development approval. Ballymont had no quarrel with these conditions and its appeal to the Planning and Environment Court was not about them. It was therefore not obliged to make Queensland a respondent in that court.3 Nonetheless it did so. The State took no active part in that appeal, but doubtless it incurred some costs before the decision to take that course was reached. It did not seek those costs against Ballymont; the expense of demonstrating that the joinder was vexatious 4 would probably have exceeded the amount of the costs. 1 [1995] 2 Qd R 231. 2 [1993] QPLR 33 at 39. 3 Integrated Planning Act 1997, s 4.1.43(4). Under that Act a concurrence agency would be called a co-respondent. When it is not a necessary party, an agency may elect to become a co-respondent. 4 Ibid, s 4.1.23(2)(b). -- 4 of 10 -- 5 [12] After the Planning and Environment Court decided the case, Ballymont applied to this court for leave to appeal and named Queensland as a respondent to the application. It did so without inquiring from the Crown Solicitor whether Queensland wished to participate in the proceedings, but it must have known that in the circumstances it was unlikely Queensland would wish to do so. Shortly before the hearing of the application for leave it wrote the letter referred to above. 5 It made no offer to pay Queensland’s costs incurred to that point. The subsequent course of the proceedings has already been described. They necessarily involved Queensland’s incurring some costs. [13] Ballymont now submits that it should not have to pay Queensland’s costs of and incidental to the appeal. Nothing in its submissions attempts to justify such a result. Nothing in the circumstances could justify it. The appeal failed. Queensland was entitled to its costs. The order of this court was correct. Costs for the Ipswich City Council [14] We turn to the position of the Council. It is difficult to know what to make of the submission that the Council is in materially the same position as Queensland. Presumably it is not intended to mean that if Queensland recovers its costs so should the Council. In any event, the Council is plainly in a completely different position from Queensland in terms of the interests which it had at stake in the appeal, its statutory duties and the part which it in fact played in the court below and in the appeal. It is unnecessary to deal further with the submission. [15] The Council challenged the submission that it had no special interest in the outcome of the appeal. It did so on the basis first that the existence of a “special interest” is not a prerequisite for a costs order; and second because the Council had an interest in the due application of the planning scheme. For the purposes of considering this point we are prepared to assume the correctness of the propositions advanced in paragraphs (c), (d) and (e) set out in para [9] above. The cases [16] Ballymont relied on two cases for its submission. They were H A Bachrach Pty Ltd v Council of the Shire of Caboolture6 and Tamborine Mountain Progress Association Inc v Beaudesert Shire Council7 . The first of these arose from a decision of the local authority to approve a rezoning of land for a shopping centre. Objectors who were the owner and some tenants of a nearby shopping centre appealed unsuccessfully to the Planning and Environment Court. A further appeal to this court was successful on the ground that the court below had misconstrued the strategic plan. Costs were awarded against both respondents. The Council sought an indemnity certificate under the Appeal Costs Fund Act 1973. In a single paragraph at the end of six pages in the report, the court said: “The First Respondent (Council) applied for an indemnity certificate pursuant to s 15(1) Appeal Costs Fund Act 1973. The relevant local authority must be a Respondent to an appeal for formal purposes. It is not clear what interest, if any, the Council had in arguing the 5 Paragraph [5]. 6 [1993] QPLR 33. 7 [1995] 2 Qd R 231. -- 5 of 10 -- 6 appeal before this Court. Counsel for the Council formulated its interest as upholding the interpretation which it had placed upon the strategic plan. Given the argument which it must have known would be presented by the Second Respondent, the Council had no justifiable reason for arguing this appeal.” 8 [17] That case is not an authority relevant to the exercise of the discretion about costs as between parties. Different considerations govern the grant of an indemnity certificate from those which apply in relation to costs between parties. Nothing in the reasons for judgment indicates that the court would have refused to make an order for costs in favour of the Council had it been successful. The reference to “no justifiable reason for arguing this appeal” must be understood as referring to a reason justifiable by reference to the Appeal Costs Fund Act 1973. Moreover the court was not enunciating a proposition of law; it was exercising a discretion in the circumstances of a particular case. What it said could not constitute a precedent as that doctrine is usually understood. The case does not support the proposition for which it is cited in the present case. [18] Tamborine Mountain Progress Association Inc v Beaudesert Shire Council was an appeal to the Court of Appeal from the Planning and Environment Court in a case where the latter had dismissed an objector’s appeal against a rezoning approval. The objector, a local citizens’ association, was found not to have been acting merely in its own commercial interest but rather in what it conceived to be the interest of the community affected by the proposal. The only issue was whether the court below was right or wrong in its construction and application of the terms of a development control plan or those of a draft development control plan. The court held that it must always have seemed improbable that anything would arise which would peculiarly affect the interests of the Council. It said: “Even when there is no likelihood of a divergence of interests between a respondent council and other respondents, it may well be just that an unsuccessful appellant pay a respondent council’s costs in a case of this kind; each case must be considered individually”.9 The power of the Court of Appeal to order costs [19] The assumption underlying that decision seems to have been that the court has an unconstrained discretion as to costs. In Wyatt v Albert Shire Council10 the court noted that in theory at least this had been the position of the Court of Chancery. The Rules of the Supreme Court had adopted the same principle except in the case of a jury trial, where they applied the common law principle that costs should follow the event. 11 Since the Tamborine case the court has adopted the Uniform Civil Procedure Rules. Rule 689 provides: “(1) Costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court considers another order is more appropriate. (2) Subrule (1) applies unless these rules otherwise provide.” 8 [1993] QPLR at p 39. 9 [1995] 2 Qd R at p 232. 10 [1987] 1 Qd R 486 at p 488. 11 O 91 r 1. -- 6 of 10 -- 7 “Proceeding” is defined to include an appeal. If the Tamborine approach is still correct it must be because the rules otherwise provide. [20] None of the submissions in the present case addressed this question. All assumed that the discretion of the Court of Appeal as to costs is unconstrained. Because it is arguable that this is the effect of r 766(1)(d) and because ultimately the point does not alter our decision, we are prepared to act on this assumption. Relevant considerations: the Council’s interest [21] The Council's submission that the existence of a “special interest” is not a prerequisite for a costs order is doubtless correct, but Ballymont did not suggest otherwise. It identified a special interest in the outcome as a factor relevant to the exercise of the discretion. While we accept that the nature and importance of the Council's interest is a relevant factor, we do not think “special” helpful in identifying relevant interests. We revert to this question below. [22] The Council had at least three interests in this appeal. First, the appeal raised a question regarding the interpretation of s 4.13(5) of the Local Government (Planning and Environment) Act 1990. Because its planning scheme was a “transitional planning scheme” under ch 6 of the Integrated Planning Act 1997, that question had the potential to affect future cases in the city. 12 Second, it raised a number of questions of general importance in the interpretation of the Strategic Plan for the city. These also had the potential to affect future cases. Third, Ballymont sought an order that the Council pay its costs of and incidental to the appeal and the application for leave to appeal. Although Ballymont had invited the Council not to participate in these hearings, it had not offered an undertaking to refrain from seeking a costs order against the Council. Having opposed Ballymont’s appeal to the Planning and Environment Court, the Council was exposed to such an order unless it consented to an order that the appeal to this court be allowed. Relevant considerations: the arguments to be presented [23] By the end of 2001 the Council had received outlines of argument from Ballymont and Stockwell. These ought to have enabled it to assess the strengths and weaknesses of the arguments intended to be presented by the commercial parties. Once the arguments were referred to and considered by counsel it might have been able to assess whether it needed to participate. Prudence might perhaps have dictated that it sought an undertaking from those parties not to depart from, or omit anything in, their outlines if it were considering not appearing on the appeal. On the other hand, one might have expected Ballymont to have offered such an undertaking if it intended, as evidently it did, to raise the present argument. In any event this factor could do no more than induce the court to refrain from ordering costs incurred after such consideration by counsel, not the whole of the Council’s costs of the appeal. [24] In the event both Ballymont and Stockwell enlarged on their outlines during the hearing of the appeal. Stockwell expressly abandoned one argument. Ballymont emphasised the allegedly flawed nature of the Council’s decision-making process 12 The case has already been cited in Stradbroke Island Management Organisation Inc v Redland Shire Council [2002] QCA 277 at p.4 in relation to that section. -- 7 of 10 -- 8 with its argument that the Council failed to take relevant considerations into account. The Council advanced separate submissions but they added little to those advanced by Stockwell. Relevant considerations: Ballymont’s interest and its status as an objector [25] Ballymont was not a public interest objector. It objected, appealed to the Planning and Environment Court and subsequently appealed to this court to further its commercial interest. There is no shame in that; but neither is there an inducement to a favourable exercise of the discretion. Even though the appeal was unsuccessful there was a delay of more than one year and eight months from the time of the Council’s decision until judgment was given in this court. That is unlikely to have harmed Ballymont’s interests. [26] In the Tamborine case the court said (immediately following the passage quoted above): “Wyatt v Albert Shire Council [1987] 1 Qd R 486, an authority concerning costs in the Local Government Court, appears to support the view that ‘the presence of a public interest [does not] automatically and wholly [remove] the case of an objector appeal outside the realm of other litigation as regards costs’. Nevertheless, it appears to be inconsistent with the purpose of the legislation unduly to discourage objector appeals, particularly where the objector is not merely acting in its own commercial interest, but rather (as here) in what it conceives to be the interest of the community affected by the proposal” 13 . [27] As the court there observed, Wyatt v Albert Shire Council was a case concerning costs in the former Local Government Court. At the time it was decided the question of costs in that court was at large. The Court of Appeal’s comment regarding the purpose of the legislation was concerned with appeals to that former court. Such an appeal was the only remedy available to an objector aggrieved by a decision of a local authority. The legislation made elaborate provision for such appeals. The comment is perfectly understandable in that context. A financial disincentive to objectors appealing to that court could easily have operated contrary to the public interest. That was recognised in the Local Government (Planning and Environment) Act 1990 which, as amended to 1995, relevantly provided: “7.6 (1) Subject to subsection (1A), each of the parties to an appeal or other proceedings is to bear their own costs. (1A) The Court may, upon application made to it, order such costs … as it considers appropriate in the following cases:- (a) where it considers the appeal or other proceedings to have been frivolous or vexatious ; (b) where a party has not been given reasonable prior notice of intention to apply for an adjournment of an appeal or other proceedings ; (c) where a party has incurred costs because another party has defaulted in the procedural requirements ; 13 [1995] 2 Qd R at p 232 -- 8 of 10 -- 9 (d) without limiting the generality of paragraph (c), where a party has incurred costs because another party has introduced (or sought to introduce) new material without first giving the party reasonable time to consider the material ; (e) where a local government does not take an active part in the proceedings where it has a responsibility to do so.” A similar approach is taken in the current legislation, the Integrated Planning Act 1997.14 However neither Act extended the protection against a costs order to appeals to this court. [28] Another feature of the 1990 legislation, which is continued in the current legislation, should be noted. The Act made specific provision for the court to order costs “where a Local Authority does not take an active part in the proceedings where it has a responsibility to do so.” That provision was inserted in the light of judicial criticisms of local authorities which adopted the attitude of not participating actively in appeals and abiding the order of the court. 15 The Act contained no definition of when a local authority had a responsibility to take an active part in proceedings. It operated, and was intended to operate, as an incentive to local authorities to assist the court. The current provision is even vaguer: the Planning and Environment Court may order costs if it considers “a local government should have taken an active part in a proceeding and it did not do so”. 16 Those provisions constitute legislative recognition of the particular assistance which a local authority can give a court in a planning matter. [29] In our view those provisions make it impossible to discern a legislative purpose in the Integrated Planning Act 1997 that objector appeals to this court should be treated any differently as regards costs from any other appeals to this court. Nor do they support the view that in such an appeal a respondent local authority is at a disadvantage as to costs unless it can show a special interest not shared by other respondents. There is no other basis for suggesting that a local authority is relevantly in a different position from other successful litigants in this court. Relevant considerations : the outcome of the appeal [30] It cannot be doubted that an important factor in exercising the discretion as to costs is the outcome of the appeal. In this case Ballymont was wholly unsuccessful. The position which the Council adopted was vindicated. Our decision [31] Taking the various factors into account we have decided that Ballymont should pay the Council’s costs of the appeal. Jurisdiction 14 Section 4.1.23. 15 Earle Properties Pty Ltd v Council of the Town of Hervey Bay [1980] Planner 31, Cocks v Hervey Bay Town Council [1980] Planner 183, Wildlife Preservation Society of Queensland Inc. v Hervey Bay Town Council [1981] QPLR 173. 16 Ibid, para (h). -- 9 of 10 -- 10 [32] Having regard to these conclusions it is unnecessary to consider whether the court has jurisdiction to make a substantive change to the order perfected on 28 June 2002. The substance of the order was correct. However the court should, under the slip rule, order that that order be amended by deleting the recitation of the names of the participating judges and inserting in lieu “McMurdo P, Fryberg and Wilson JJ”. Order [33] The application for costs is dismissed with costs. Order that the formal order of this court made herein on 28 June 2002 be amended by deleting the names of the participating judges and inserting in lieu “McMurdo P, Fryberg and Wilson JJ”. -- 10 of 10 --