Boral Resources (Qld) Pty Ltd & CSR Ltd v Pine Rivers Shire Council & Ors [1999] QSC 376

) ) ) ) SUPREME COURT OF QUEENSLAND REGISTRY: BRISBANE NUMBER: 9516 of 1997 Before Justice Ambrose [Boral Resources (Q) P/L & Anor v Council ofthe Shire of Pine Rivers & Ors] BETWEEN AND AND AND AND CATCHWORDS: Counsel: BORAL RESOURCES (QLD) PTY LIMITED ACN 009 671 809 CSRLIMITED ACN 000 001 276 First Applicant Second Applicant COUNCIL OF THE SHIRE OF PINE RIVERS IAN ALBERT RETTKE ROSINA ANN RETTKE Reasons for Costs Order - B W Ambrose J Delivered the 17th day of December 1999 First Respondent Second Respondent Third Respondent COSTS - INDEMNITY COSTS - CONDUCT OF PARTIES - whether the applicants properly advised should have known that the application had no real prospect of success - whether the application must have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 MGICA (1992) Ltd v Kenny & Good Pty Ltd and Anor (No 4) (1996) 140 ALR 707 Multicon Engineering Pty Ltd v Federal Airports Corporation (1996) 138 ALR 425 Naomi Marble and Granite Pty Ltd v FAI General Insurance Company Limited (No 2) [1999]1 Qd R 518 Nautilus Australia Limited v The Ship Rossel Current- unreported Qld SC - No 6585 of 1998 - delivered 26 March 1999 Judicial Review Act 1991 - ---. - .... _-- -- - -~---. _. --- Local Government (Planning and Environment) Act of 1990 Mr R Gotterson QC, with him Mr AN Skoien for the applicants Mr CL Hughes for the first respondent Mr RR Oliver for the second and third respondents -- 1 of 5 -- ) ) ) ) Solicitors: Hearing Date: 2 Mr IR Pepper for the applicants Mr RD Forbes, Shire Solicitor for the first respondent Trilby Misso & Co for the second and third respondents 26 November 1999 [I] In this matter the first respondent and the second and third respondents seek an order against the applicants for indemnity costs. [2] The applicants brought proceedings for the judicial review of the decision of the first respondent to give to the second and third respondents approval for the sub-division of a 19.39 hectare parcel of rural land in the vicinity of quarries owned and operated by the applicants. [3] The application was dismissed on 17 November 1999 and lengthy reasons for judgment were then published. [4] At the conclusion of the reasons for judgment I invited submissions from the parties as to whether any Order for costs should be for standard or indemnity costs or "full" indemnity costs (in the sense of "solicitor and own client" costs). [5] On 26 November 1999 lengthy submissions were addressed on this question. The responnents seek only indemnity costs. [6] For the applicants it was not contended that an order should not be made against them for standard costs. It was, however, strongly contended that an order for indemnity' ------------_. ----- - costs ought not be made because at least one of the legal points canvassed on behalf of the applicants was "arguab]e" - even if views might differ as to whether it was "reasonably arguable". -- 2 of 5 -- 3 [7] Much argument was addressed as to weight that might be given on this application for costs to the terms of a letter from Boral to the respondent Council dated 28 August 1997. In the course of reasons for judgment I characterised the letter as an improper threat made to the Council to have its decision reviewed should it approve the sub- divisional application. However because the Council ignored it, the terms of the letter itself had relevance only to the question of costs. As it was pointed out in the reasons only two points were advanced by the applicants to support the review which they sought - one under s 20(2)(e) and one under s 20(2)(h) of the Judicial Review Act. ) [8] Each ground was considered at length in the published reasons and each was '\ ./ rejected as being quite insupportable on the only evidence led by the applicants. [9] At para.71 of the reasons, I expressed the view that the legal arguments advanced by the applicants upon the hearing were of an extremely theoretical and unpersuasive kind. ) [10] It was unnecessary to determine what, if any, collateral purpose or purposes may ) have motivated the sending of that letter to the respondent Council. In this respect I refer to the comments at the end ofpara.81 of the reasons. [11] After hearing lengthy submissions on behalf of the applicants on the question of costs, I see no reason to change the views I expressed at some length in the reasons for judgment of 17 November 1999. [12] To my mind the most probable explanation for the bringing of the application, _which had no prospects whatever of success, in the. absence of any_evidence as to what -- 3 of 5 -- 4 collateral purpose or purposes may have motivated it, is that it was decided by the applicants, or at least by Boral who wrote the letter, that the application should be made because Boral had threatened to make it should the Council approve the sub-divisional application and felt that it would be in its long term interests to be perceived as not being inclined to make merely empty threats in pursuit of those interests. There was, on the material, a clear division of opinion between me~bers of the Council and I infer that Boral at least was aware of this when it wrote the threatening letter. I have dealt with this topic at some length in my published reasons and I will not do so again. [13] The principles upon which an order for indemnity costs will be made was considered by Shepherdson J in Naomi Marble and Granite Pty Ltd v FA! General Insurance Co Limited (No 2) [1999]1 Qd R 518. [14] There are a number of cases which, in my view, support the application by the respondents for indemnity costs. I refer to Multicon Engineering Pty Ltd v Federal Airports Corporation (1996) 138 ALR 425 where Rolfe J at 441, 442 and 443 analyses the relevant authorities and sets out the principles upon which such orders will be made. I refer also to the Selected Meats case (1988) 81 ALR 397 and MGICA (1992) Ltd v Kenny & Good Pty Ltd and Anor (No 4) (1996) 140 ALR 707 at 710. I dealt with those cases in Nautilus Australia Limited v The Ship Rosse! Current in action No 6585 of 1998 in judgment delivered 26 March 1999. Although I referred those authorities to counsel they were not debated to any extent. Having regard to what was held in those cases, I take the view that where an application has been commenced or is continued in circumstances where the applicant properly advised should have known that it had no real prospect of success then it is appropriate to presume that the application must have been commenced -- 4 of 5 -- 5 • or continued for some ulterior motive or because of some wilful disregard of the known facts on the only evidence clearly available to the applicant. [I 5] Courts will make orders for indemnity costs to make it known that they will not readily accept that their time and litigants' money can be wasted on totally frivolous or thoroughly unjustified proceedings. [I 6] I listened with interest to the submissions made on behalf of the applicants to the ) effect that there was some important matter or matters of construction of provisions of the Local Government (Planning and Environment) Act of 1990 and/or the Strategic Plan ) published by the first respondent. [17] While far from persuaded that the matters canvassed were reasonably arguable, even if they had been their determination would have had only the most peripheral impact on the real issue raised - whether there was no planning or other evidence before the ) Council to permit the decision sought to be reviewed to be made. I conclude that if properly advised the applicants must have known that they had no real prospects of ) success upon the only grounds they raised and upon the only evidence which they led to support those grounds. [18] In the circumstances, in my view, this is a proper case in which to order indemnity costs . . [19] - - --1 therefore- order the applicants to pay to the firsr respondent and the second and third respondents their indemnity costs ofthe application to be taxed. -- 5 of 5 --