Copley v Beaudesert Shire Council & Anor [1994] QPEC 24

State Reporting Bureau ~----------------------------------------- -~ ---------------------------------------- i I TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) PLANNIN~ AND ENVIRONMENT COURT JUDGE O'SULLIVAN P & E Appeal No 239 of 1993 GREGORY CHARLES COPLEY and BEAUDESERT SHIRE COUNCIL and XYZ TIMESHARE PTY LTD BRISBANE i ·,t:VlSEu COP:Es j:J::UED State Reporting Bureau ; 7/" - i Date .-"I.,.\ / ..=,-!, I c,. v.- Appellant Respondent Respondent by election 'I .. DATE 08/02/94 ORDER 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 6 -- 080294 HER HONOUR: This is an application by the respondent by election and the respondent for their respective costs. The application is limited in that each of those parties only seeks the costs for certain dates, they being the dates 29 October and forwards, eight days are involved, although as Mr Trotter pointed out they are not eight full days. I have received written submissions from both Mr Trotter and Mr Hinson and I heard oral submissions from Mr Copley. 10 20 I wish to say at the outset that I find this application understandable and I have considerable sympathy for the position of both the respondent by election and the respondent. The length of this trial was absolutely unbelievable. When it was listed for four days it should have 30 gone four days; that it went as long as it did is something which caused me some considerable personal agony and I wish it had been otherwise. It was a difficult trial and there is no doubt in my mind that 40 it went much longer than it should have. But where the blame lies for that is I think a complex issue, and whether it results in an award for costs is also by no means black and white. I also wish to say at the outset that I consider that Mr Copley in acting for himself was given very considerable leeway, and I could understand that the other parties may feel that he was given too much leeway. This is always a difficult 2 ORDER 50 ro -- 2 of 6 -- 080294 thing for a Judge who conducts an appeal where a party appears in person and probably in the end result it may be that concessions are given to those persons that are not given to the legal representatives who appear for the other parties. I found Mr Copley to be an extremely difficult advocate of his cause. He was mostly not open to suggestion, was argumentative and at time discourteous. Nevertheless, I felt it my duty to assist him as best I could because I was mindful of the fact that he was acting for himself. I think the evidence in his own case and in cross-examination was presented badly and inefficiently. There was a mixture of the relevant and the irrelevant. There were concessions not 10 20 made which were crying out to be made and which I can 30 understand it caused Mr Trotter and Mr Hinson great distress that the concessions were not made. However, of course, at the end of the day, it is for each party (whether they are lay people or barristers or solicitors) to conduct their case as they see fit. I am satisfied that whilst I found Mr Copley to be a difficult and frustrating person he did have a genuine motive and that he believed that what he was saying and in the evidence 40 he called and the questions he asked in cross-examination were so relevant. I therefore find that he conducted his case in a bona fide manner and without malice. He did not intend to annoy, although there is no doubt in my mind that he certainly did that. 3 ORDER 60 -- 3 of 6 -- 080294 It is also not possible to say, as I think it is necessary to find, that there was no reasonable prospect of success. I was referred to two decisions, McDermott v. Brisbane City Council and others, which is reported in 1991 QPLR 131 and in particular at pages 136, 137, and I was also referred to tne 10 case of Fitzgerald. The latter case I found of only limited assistance although of course it is relevant, because it was a case in'which the "frivolous and vexatious" argument was put before Court. There is a further case and one which I can assume counsel did not refer me to only because perhaps it has not been reported, one in which Mr Trotter I thought acted, Wilson and Laidley Shire Council delivered in September 1993. In that case, at 20 considerable length I have already canvassed the question of 30 what is "frivolous and vexatious", for the purposes of section 7.6 of the Local Government (Planning and Environment) Act. I do not propose to repeat everything that is in there, I read it again this morning and I adopt what I say in that case. I will check that it has in fact been sent to QPLR for publication. I understand they are up to six months behind with reporting our judgments and that is beginning to create a bit of a problem. That judgment refers to Fitzgerald, to 40 McDermott, and to another unreported decision which I will also chase up, of Robina Land Corporation Pty Ltd v. Albert so Shire Council and City Centre Projects Pty Ltd, a decision of His Honour Judge Quirk of 4 December 1992. In that judgment I set out the passages from each of those 60 4 ORDER i (' I ( ' I (' I_ -- 4 of 6 -- 080294 authorities, refer to numerous dictionary definitions and other authorities. I accept the submission of Mr Hinson that some of the Federal Court authorities are not of direct relevance because they are in a different context, but nevertheless, I think they are of some assistance in this Court in its corning to terms with the concept of "frivolous and vexatious". I find that McDermott should be distinguished. In that case 10 Judge Row said, "I have formed the view that in a substantial 20 part the delays that have occurred during the hearing of the evidence were intentional." I find that this is not so in this instance. Judge Row also found that, "There was no merit whatsoever." I am not able to make a similar finding here. I find, as I said earlier, that there was a frustrating 30 mixture of relevant and irrelevant and some of it had a reasonable prospect of success and all of it I had to consider in writing my judgrnent, a process I might say which took me longer than probably the equivalent of 20 other judgrnents last year. 40 The third way in which I think that McDermott can be distinguished is that Judge Row there said: "A list of disputed issues ranged far and wide and in many instances raised matters which were completely irrelevant to the so appeal." I think some of the material raised by Mr Copley came very close to this, but in the end I think it is characterised rather as a matter of evidence badly presented - and in the final analysis of course unconvincing and that is a 60 5 ORDER -- 5 of 6 -- 080294 different thing. As Judge Quirk said in Robina there is an important distinction between frivolous and vexatious on the' one hand and merit on the other. I think that underneath it all the Applications today really are (although I am not for a moment suggesting intentionally) in the end Applications for 10 costs based on merit and success. Referring to all those authorities and taking into account all of the circumstances, I find that in the Appeal insofar as those additional days were concerned was not "frivolous and 20 vexatious" and I therefore refuse both Applications. 30 40 50 60 6 ORDER -- 6 of 6 --