Deepgold Pty Ltd v Albert Shire Council & Ors [1993] QPEC 47

·m, State Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is \'ested in the CroVt'D. Copies thereof must not be made or sold "ithout the written authority of the Director, State Reporting Bureau.) PLANNING AND ENVIROijMENT COURT JUDGE O'SULLIVAN No 39 of 1992 DEEPGOLD PTY LTD and ALBERT SHIRE COUNCIL and NERANG PASTORAL CO PTY LTD and DAVID WILLIAM SPAIN BRISBANE .. DATE 23/07 /93 .. JUDGMENT Appellant Respondent Respondent by • Election Respondent by Election 1 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Fllcsimile: (07) 227 553~_ -- 1 of 8 -- 230793 HER HONOUR: I dismiss the application for costs by Nerang Pastoral. I publish my reasons. HER HONOUR: Mr Spain seeks his costs of the appeal. For the reasons similar to those advanced in my published reasons in respect of the application by Nerang Pastoral, I find that Mr Spain is not entitled to his costs and I dismiss his application. The formal order will be the application for costs by Mr Spain is dismissed. HER HONOUR: In respect of Mr Spain's application for an extension of time to file his notice of election, it is now no longer necessary for me to decide this point in view of , my decision concerning my lack of jurisdiction to grant his application for costs. 2 JUDGMENT 1. 10 30 40 50 60 -- 2 of 8 -- ) ) I a. I:: IN THE PLANNING AND ENVIRONMENT COURT HELD AT SOUTHPORT QUEENSLAND P & E Appeal No. 39 of 1992 Before O'Sullivan DCJ [Deepgold P/L v. Albert Shire Council & Ors] BETWEEN: DEEPGOLD PTY. LTD. - and - ALBERT SHIRE COUNCIL - and - NERANG PASTORAL CO. PTY. LTD. Appellant Respondent Respondent by Election - and - DAVID WILLIAM SPAIN Respondent by Election ) REASONS FOR JUDGMENT Judgment delivered: 23.07.1993 Catchwords: Counsel: A. Innes (Appellant S. Ure (Respondent) C. Hughes (Respondent by Election - Nerang Pastoral Co. ) David William Spain (Solicitor - Respondent by Election) Solicitors: Short Punch & Greatorix (Appellant) King & Co. (Respondent) James Byrne & Co (Respondent by Election - Nerang Pastoral Co. ) Henderson & Associates (Respondent by Election - David William Spain) Hearing Date(s): 12.02.93 -- 3 of 8 -- IN THE PLANNING AND ENVIRONMENT COURT HELD AT SOUTHPORT QUEENSLAND BETWEEN: AND: P & E Appeal No. 39 of 1992 DEEPGOLD PTY. LTD. Appellant ALBERT SHIRE COUNCIL Respondent NERANG PASTORAL CO. PTY. LTD. Respondent by Election DAVID WILLIAM SPAIN Respondent by Election REASONS FOR JUDGMENT - O'SULLIVAN D.C.J. Delivered the 23rd day of July 1993 This matter concerns an Application for costs by the First Respondent by Election, Nerang Pastoral Co. Pty. Ltd. ("Nerang Pastoral") . The Appellant, Deepgold Pty. Ltd., failed to serve an adjoining owner as required by section 4.4(4)(a)(iii) of the Local Government (Planning and Environment) Act (1990-1992) ("the Act"). It advised the Court that it intended to file a Notice of Withdrawal of the appeal in the near future. I note that it has since been filed. -- 4 of 8 -- 2 Application by Nerang Pastoral: Nerang Pastoral seeks its costs pursuant to section 7.6(1)(b)(iii) of the Act which states that the Court may order costs as it considers appropriate "where a party has incurred costs because another party has defaulted in the procedural requirements". "Procedural requirements" is not defined in the Act. Counsel for the Appellant submitted that sub-section 7.6(1)(b)(iii) does not apply because the failure to serve an adjoining owner is not a default in the "procedural requirements". He submitted that "procedural" relates to the process of conduct of the appeal. He drew my attention to the use of the word "proceedings" in sub-section 7.6(1)(b)(iv). He referred to various definitions. In The Macquarie Concise Dictionary "procedure" is defined, inter alia, as "mode of conducting legal, parliamentary, or other business, esp. litigation and judicial proceedings". "Proceeding" is defined, inter alia, as " 5. Law. a. the instituting or carrying on of an action at law. b. a legal step or measure; to institute proceedings against a person". In Osborn's Concise Law Dictionary "procedure" is defined as "the formal steps to be taken in an action or other judicial proceeding, civil or criminal ... ". In The Concise Oxford Dictionary "procedure" is defined as "n. proceeding; mode of -- 5 of 8 -- 3 conducting business (esp. in parliament) or legal action; mode of performing task; hence al. a. of or relating to procedure". "Proceeding" is defined, inter alia, as" ... legal (steps taken in) legal action". Sub-section 7.6(1)(b)(iii) of the Act has been considered in a number of cases, including Tamborine Mountain Progress Association Inc. and Beaudesert Shire Council and David H Thompson & Associates and Secranna Pty Ltd. (Unreported - o' Sullivan DCJ ·- 30. 1 0. 92) ( Court of Appeal - Unreported - 29.4.93) and Heilbronn and Partners Pty Ltd and Pine Rivers Shire Council ( Unreported - Row DCJ - 9 . 9 . 9 2) ( Court of Appeal Unreported - 5.3.93). In Tamborine Mountain (supra) the Court made an Order for costs in respect of a failure to comply with section 13 of the Associations Incorporation Act (1981) in that no Affidavit of Compliance had been filed. The Court of Appeal (Appeal 236 of 1992 - heard 29 April 1993) dismissed an appeal against this Order. No written Reasons were published. The Court said, in the transcript of its judgment, that it was unnecessary to decide whether the power to award costs was under subsection 7.6(1)(b)(iii) of the Local Government (Planning and Environment) Act or subsection 13 ( 4) of the Associations Incorporation Act. -- 6 of 8 -- 4 It also said it was unnecessary to decide whether subsection 7.6(1)()b)(iii) related only to procedural requirements ordained by the Local Government (Planning and Environment) Act and not other procedural requirements. It said: "The Court is satisfied that the discretion was properly exercised. It was manifestly open to the Planning and Environment Court to conclude that the application to strike out had been necessitated by the appellants' failure to comply with the Associations Incorporation Act and that, in those circumstances, the appellant should be ordered to pay the costs, if there was power to make such an order". The Order for costs made in Heilbronn (supra) concerned a failure under sub-section 5. 1 ( 5 )(a) of the Act ( requiring the local authority to make a decision on the application within 40 days). The Judge held that it was a default in the "procedural requirements". The Order for costs was appealed to the Court of Appeal. The Court said, in respect of sub-section 7 .6(1) (b) (iii) of the Act: "There are several indications in that subsection that it is concerned only with proceedings before the Planning and Environment Court". It held that the order for costs made below was beyond power and should be set aside. The Court of Appeal did not accept the submission of Counsel for the Respondent that much of the Act is procedural and that a default in respect of such an aspect of the legislation is literally within sub-section 7.6(1)(b)(iii) of the Act. It preferred the submission of Counsel for the Appellant that the subsection is within Part 7 of the Act which is concerned exclusively with -- 7 of 8 -- 5 appeals and other proceedings in the Court and that, when read in context, the expression "procedural requirements" relates to proceedings in the Court and not the other procedural requirements provided by the Act. I consider that the failure to serve an adjoining owner is not "a default in the procedural requirements" and is thus not within sub-section 7.6(1)(b)(iii) of the Act. Whatever I may think are the merits of the Application for costs, I have no power to grant the Application sought and accordingly it is dismissed. -- 8 of 8 --