Bond v Brisbane City Council (No. 2) [2002] QLRT 61

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Bond v Brisbane City Council [No. 2] [2002] QLRT 61 PARTIES: Alexander Llewellyn Bond (Applicant) and Brisbane City Council (Respondent) FILE NO/S: CHA00046/2002 PROCEEDING: Application for costs DELIVERED ON: 19 September 2002 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers PRESIDING MEMBERS: Koppenol P ORDER/S: Application for costs refused. (at [11]) CATCHWORDS: COSTS – APPLICATION FOR – CULTURAL HERITAGE INJUNCTION APPLICATION WITHDRAWN – Whether “special circumstances” under section 50, Land and Resources Tribunal Act 1999 Land and Resources Tribunal Act 1999, s. 50 Re: The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622, applied ONE.TEL Ltd & Ors v Deputy Commissioner of Taxation (2000) 101 FCR 548, followed COUNSEL: N/A SOLICITORS: Ms K Houston, for the Respondent AGENT/S: N/A Application [1] The Respondent Brisbane City Council seeks an order that the Applicant, A.L. Bond, pay the costs of the cultural heritage injunction proceedings instituted by Mr Bond. -- 1 of 3 -- Those proceedings were withdrawn by Mr Bond on 5 September 2002, prior to the hearing of the scheduled interlocutory injunction application on 11 September 2002. Background [2] Mr Bond gave a number of written reasons for withdrawing these proceedings; they included lack of legal representation and emotional stress said to have been caused to him by the position taken by the Council. [3] Mr Bond commenced these proceedings on 19 July 2002. After the initial directions hearing, the matter was the subject of mediation – where broad agreement was apparently reached but the Council was ultimately not prepared to settle the matter on those terms. Mr Bond did not attend the next scheduled directions hearing, for reasons which were not specified. At the adjourned directions hearing on 4 September 2002, directions were given to facilitate the hearing on 11 September 2002. An application for an interim injunction was also dealt with and refused on that occasion.1 Costs [4] Section 50 of the Land and Resources Tribunal Act 1999 sets out the principles applicable to costs in the Tribunal. It provides as follows: “Costs 50. (1) Each party to a proceeding before the tribunal must bear the party’s own costs for the proceeding. (2) However, the tribunal may award costs in a proceeding if the tribunal considers, in the special circumstances of the proceeding, an award of costs is appropriate. Examples of possible special circumstances – 1. The proceeding was started merely to delay or obstruct. 2. The proceeding, or a part of the proceeding, has been frivolous or vexatious. (3) If costs are awarded by the tribunal under subsection (2), the amount of the costs is to be the amount the tribunal considers reasonable.” [5] The Council submitted that there were “special circumstances” in this proceeding, based on the fact that the Applicant withdrew his action without establishing that he had any grounds for bringing it. Costs of $4,125.27 were sought. [6] I have not found it necessary to invite submissions from Mr Bond. [7] By reference to the examples in section 50(2), I am not satisfied that Mr Bond started this proceeding merely to delay or obstruct, nor am I satisfied that the proceeding (or 1 [2002] QLRT 58. -- 2 of 3 -- part of it) was frivolous or vexatious. It is true that Mr Bond failed in his interim injunction application and had not then established the grounds for an injunction; however the withdrawal occurred the day after the directions hearing on 4 September 2002 and well before the scheduled hearing date of 11 September 2002. [8] It is important to stress that when a case is terminated before there has been a hearing, the issue of costs should not be resolved by engaging in something of the nature of a hypothetical trial.2 Although there were undoubtedly a number of strong points raised by the Council at the interim injunction hearing, I am unable to presently conclude that the Council “was almost certain to have succeeded if the matter had been fully tried.”3 [9] I have no doubt that Mr Bond firmly and genuinely holds the views which he expressed before me, and that he felt that he was acting reasonably in commencing and prosecuting this matter. Absent the hearing which will not now occur, I am unable to say that Mr Bond’s actions were not reasonable. Conclusion and Order [10] It is unfortunate that the Council has expended over $4,000 in legal costs on a matter that was ultimately discontinued. However in all of the circumstances, I am unable to conclude that special circumstances are present in this case which would justify an order for costs under section 50(2). [11] Accordingly the normal rule that each party must bear that party’s own costs must apply. The Council’s application for costs is therefore refused. 2 Re: The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622, 624; ONE.TEL Ltd & Ors v Deputy Commissioner of Taxation (2000) 101 FCR 548, 552-3 [5]. 3 Ex parte Lai Qin, supra, at 625. -- 3 of 3 --