Douglas & Douglas T/tee for Douglas Family Trust v Brisbane City Council [1993] QPEC 70

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.) PLANNING AND ENVIRONMENT COURT JUDGE O'SULLIVAN p & E Appeal No 169 of 1991 CARMEL MICHELE DOUGLAS and WILLIAM LEONARD DOUGLAS as trustees for D W Land CM DOUGLAS Family Trust and W L DOUGLAS and BRISBANE CITY COUNCIL BRISBANE .. DATE 06/10/93 JUDGMENT 1 -- Appellant Respondent -- 1 of 11 -- 061093 T 1/MM M/T CMSS/93 (O'Sullivan DCJ) HER HONOUR: I publish my reasons. HER HONOUR: I order that the respondent pay 60 per cent of the appellant's costs, including 60 per cent of the costs of this application. - - 2 JUDGMENT 10 20 f ( 30 ( 40 ( \( 50 60 -- 2 of 11 -- IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND P & E Appeal No. 169 of 1991 Before O'Sullivan DCJ [Douglas & Ors v. Brisbane City Council] BETWEEN: CARMEL MICHELE DOUGLAS AND WILLIAM LEONARD DOUGLAS AS TRUSTEES FOR THE W.L. & C.M. DOUGLAS FAMILY TRUST AND WILLIAM LEONARD DOUGLAS Judgment delivered: Catchwords: Counsel: Solicitors: Hearing Date(s): Appellants - and - BRISBANE CITY COUNCIL Respondent REASONS FOR JUDGMENT 06/10/1993 Application for costs: compensation claim, injurious affection; whether application under s. 31 City of Brisbane Town Planning Act (1964) (as amended) or s. 7. 6 Local Government ( Planning and Environment) Act (1990-1992) - whether s. 7. 6 of Local Government ( Planning and Environment) Act 1990-92 expresses a "contrary intention" on the question of costs - s.4 Acts Interpretation Act. J.E. Gallagher Q.C. for the Applicants/Appellants T. Trotter for the Respondent Stubbs Barbeler Grant (Applicant) Director of Legal Services, Brisbane City Council (Respondent) 8 September 1993 -- 3 of 11 -- IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND Appeal No. 169 of 1991 BETWEEN: CARMEL MICHELE DOUGLAS AND WILLIAM LEONARD DOUGLAS AS TRUSTEES FOR THE W.L. & C.M. DOUGLAS FAMILY TRUST AND WILLIAM LEONARD DOUGLAS Appellants BRISBANE CITY COUNCIL Respondent REASONS FOR JUDGMENT - O'SULLIVAN D.C.J. Delivered the 6th day of October 1993 This is an Application by the Appellants for their costs of the Appeal, which was heard on 11,12 and 13 May, 1992. The Appellants appealed against the deemed refusal of the Respondent of a claim for compensation for injurious affection relating to land situated at Ellis Street, Kangaroo Point. My Reasons for Judgment were delivered on 17 July 1992. The Application involves two points. The first is whether the Application for costs ought to be dealt with under section 31 of the City of Brisbane Town Planning Act (1964) (as amended) or under section 7.6 of the Local Government (Planning and Environment) Act (1990-1992). The second is whether costs ought to be awarded if the Application is dealt with under the City of Brisbane Town Planning Act. -- 4 of 11 -- Section 4 of the Acts Interpretation Act (1954) (as amended) is as follows: "The application of this Act may be displaced, wholly or partly, by a contrary intention appearing in any Act." Section 20 of that Act provides: "(1) The repeal, amendment or expiry of an Act or a provision of an Act does not - (a) ... (b) affect the previous operation of the Act or provision or anything suffered, done or begun under the Act or provision; or (c) affect a right, privilege, obligation or liability acquired, accrued or incurred under the Act or provision .... In Douglas & Ors v Brisbane City Council (1992) QPLR121 Row DCJ said, at page 123: "The Local Government (Planning and Environment) Act is silent in relation to claims for compensation. It refers ins. 8.10(9) to applications. The fact that it refers to applications cannot, in my view, lead to a necessary implication that it intended from those words to exclude or not preserve rights which had accrued in relation to a claim for compensation under the repealed City of Brisbane Town Planning Act". Counsel for the Respondent submitted, and I accept, that the question for determination here was different from the one canvassed before Row D.C.J. It is not a question concerning claims for compensation, but rather, it is a question whether section 7.6 of the Local Government (Planning and Environment) Act 1990-1992 expresses a "contrary intention" on the question of costs. -- 5 of 11 -- .1 There are no express words in the Local Government (Planning and Environment) Act (1990-1992) which exclude the operation of s.20 of the Acts Interpretation Act. The question is whether s.7.6 of the Local Government (Planning and Environment) Act (1990-1992) necessarily carries the implication that the subject proceedings cannot be continued after the City of Brisbane Town Planning Act has been repealed. I consider that such a necessary implication is not open. I am satisfied that the right of the Appellants to seek costs is not extinguished but is preserved by s.20 of the Acts Interpretation Act. The question of costs should therefore be dealt with under section 31 of the City of Brisbane Town Planning Act. There are numerous authorities concerning the relevant principles to be applied in this situation. Counsel referred me to three in particular: Wyatt v Albert Shire Council (1987) 1 Qd.R. 486, Solomon Services Pty Ltd v The Council of the Shire of Woongarra (1988) 2 Qd.R. 202 and Faden Pty Ltd v Goondiwindi Shire Council & Ors. (1987) QPLR 250. From these authorities, and others, the following factors and principles emerge which are relevant to the subject Application for costs: -- 6 of 11 -- ! 1. "The reason for referring to these provisions is to remove any expectation that in exercising its jurisdiction under s. 31 of the Act the Local Government Court may be bound by any preconception or presumptive rule or principle governing the award of costs in the Supreme Court, such as that costs follow the event. Under s. 31 of the Act the discretion of the Local Government Court with respect to costs is complete ... " (Wyatt at 488). 2. The discretion must be exercised judicially (Wyatt at 489). 3. "Section 31 of the Act does not suggest that an order for costs against an unsuccessful party will be a necessary consequence of an appeal to the Local Government Court; but it is equally incorrect to suggest that they will be awarded only in exceptional circumstances. The matter is essentially one for the proper exercise of a judicial discretion" ( Wyatt at 493). 4. The exercise of the discretion will be governed by the circumstances of each case (Wyatt). s~ Whether the case involved matters of genuine public interest and concern is relevant (Solomon Services). 6. "His Honour's short reasons make it clear that he considered the fact that the appellant's case was properly arguable. That cannot be an irrelevant consideration. It may be that if the case is properly arguable, and if there are no other -- 7 of 11 -- ~ circumstances compelling an order for costs one way or the other, then a possible consequence is that no order will be made" (Solomon Services at 207). 7. "The courts should keep in mind that the discretion is an unfettered one. Consideration should then be given to all relevant considerations which might include the issues which have been raised, their public nature or otherwise, the extent to which a party may be said to have a commercial interest in the outcome, the success or failure of the parties on particular issues, the amount of time spent on issues and the extent to which they might be said to have been arguable or otherwise, and the difficulty of resolving the matter according to commonly understood town planning principles" (Solomon Services at 207). 8. "However the legislature has provided that this Court be available for the discussion and review of planning decisions made by Local Authorities, and it is my view that the use of the jurisdiction in good faith was not intended, as a general rule, to be met with an adverse order for costs whenever a party was unsuccessful" (Faden at 251). 9. "It would seem to me that the reasonableness or otherwise of the conduct of party who has invoked this Court's jurisdiction unsuccessfully is an important consideration in the decision whether an order for costs should be made against that party" (Faden, at 253, expressly approved by the Full Court in Solomon Services at 208). -- 8 of 11 -- _§_ I consider that all these principles are relevant; none are determinative and none are more important than others. Counsel submitted that I ought to take into account a number of particular aspects of the Appeal, including: Submissions on behalf of the Appellants: a. No offer of compensation was made prior to trial and the claimant was obliged to proceed to a hearing for compensation. b. At all times both the right to compensation and the quantum of compensation were contested before the Court of Appeal, Row DCJ, and myself. c. The conduct of the claimant in no way directly increased the duration of the hearing. d. I found for Mr Rowland on the high value and Mr Walsh on the low value. e. This was not a case where two figures were put up and one figure was nearer the award. The Respondent offered nil compensation. f. This was a claimant case against a public authority - not a town planning case where there is a contrary view and an expression of public interest. -- 9 of 11 -- l Senior Counsel for the Appellants submitted that the costs- follow-the-event rule ought to be applied and costs awarded to the Appellants. Submissions on behalf of the Respondent: i. The original claim was $1.75 million and 3 days before the hearing was amended to $455,000 and I awarded $167,000. ii. There was evidence from Valuers and Town Planners as to what they thought the position was before, and after, the change of zoning. iii. I preferred the evidence of Mr Rowland to that of Mr Walsh. Counsel for the Respondent submitted that no Order for costs ought to be made. I accept that all these matters are relevant to the exercise of my discretion as to an award of costs. None are determinative and none .are more important than others. I have perused my Reasons for Judgment in order to refresh my memory of the evidence and the findings I made. I have also analysed the length and nature of the evidence given by the various witnesses and the time taken up in legal submissions. -- 10 of 11 -- §_ Having regard then to the principles I have outlined from the authorities, and taking into account all the matters suggested as relevant by both parties, and having given considerable thought to the evidence at the hearing and the findings I made, I consider that in the rather special circumstances of this case an appropriate award of costs is that the Respondent pay 60% of the Appellants' costs. I order that the Respondent pay 60% of the Appellants' costs. I order that the costs be ascertained and fixed by the proper costs taxing officer of the Supreme Court at Brisbane, according to the scale of costs prescribed by law for the time being in respect of proceedings in the District Court. -- 11 of 11 --