Ebis Enterprises Pty Ltd v Sunshine Coast Regional Council [2011] QCA 15

SUPREME COURT OF QUEENSLAND

CITATION: Ebis Enterprises Pty Ltd v Sunshine Coast Regional Council [2011] QCA 15

PARTIES: EBIS ENTERPRISES PTY LTD (applicant) v SUNSHINE COAST REGIONAL COUNCIL (respondent)

FILE NO/S: Appeal No 7980 of 2010 / P & E Appeal No 3591 of 2009

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal – Further Order

ORIGINATING COURT: Planning and Environment Court

DELIVERED ON: 11 February 2011

DELIVERED AT: Brisbane

HEARING DATE: Heard on the papers

JUDGES: McMurdo P and Chesterman JA and Philippides J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

FURTHER ORDER: 1.Application for an order for costs of the proceeding in the Planning and Environment Court is refused; / 2.Respondent to pay the appellant’s costs of responding to the application.

CATCHWORDS: ENVIRONMENT AND PLANNING – COURTS AND TRIBUNALS WITH ENVIRONMENTAL JURISDICTION – QUEENSLAND – PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS – COSTS – FRIVOLOUS OR VEXATIOUS PROCEEDINGS – where the applicant sought an order that the respondent should pay its costs of the proceedings in the Planning and Environment Court – where the applicant did not intimate to the Planning and Environment Court that it would seek such an order if successful and did not lead any evidence to that effect – where the applicant relied upon s 4.1.23.(2)(b) of the Integrated Planning Act 1997 (Qld) – whether the applicant has demonstrated that the respondent’s proceeding was “frivolous or vexatious” / Integrated Planning Act 1997 (Qld), s 4.1.23 / Sustainable Planning Act 2009 (Qld), s 832(1) / Mudie v Gainriver Pty Ltd (No. 2) [2003] 2 Qd R 271; [2002] QCA 546, considered / Sunshine Coast Regional Council v Ebis Enterprises Pty Ltd [2010] QCA 379, cited

COUNSEL: S J Keim SC for the applicant / M A Williamson for the respondent

SOLICITORS: P & E Law for the applicant / DLA Phillips Fox for the respondent

1. MARGARET McMURDO P: Ebis Enterprises Pty Ltd, the successful appellant in Sunshine Coast Regional Council v Ebis Enterprises Pty Ltd,¹ has applied for a further order, namely, that its costs of the proceedings in the Planning and Environment Court the subject of that appeal be paid by the respondent to that appeal, the Sunshine Coast Regional Council. That application should be refused with costs for the reasons given by Chesterman JA.

2. CHESTERMAN JA: Pursuant to the orders made by the court on 23 December last, granting it leave to appeal and allowing the appeal, the applicant Ebis Enterprises Pty Ltd (“Ebis”) seeks an order that the respondent Sunshine Coast Regional Council (“Council”) should pay its costs of the proceedings in the Planning and Environment Court (“P & E Court”). Ebis did not, in the course of submissions, intimate to the P & E Court that it would seek such an order if successful and did not lead any evidence that might have been relevant to the issue. While this Court is not precluded by that circumstance from making the order now sought by Ebis the manner in which the application for costs has been brought provides scant basis for it and puts the court at a disadvantage in not having the benefit of an investigation of the facts that might give rise to an entitlement to an order for costs.

3. Section 4.1.23 of the Integrated Planning Act 1997 (which remains the relevant legislation pursuant to s 832(1) of the Sustainable Planning Act 2009) provided that each party to a proceeding in the P & E Court must bear its own costs of those proceedings save that an order for costs may be made in the circumstances identified in subsection (2)(a) to (i). Ebis relies upon s 4.1.23.(2)(b) which allows the court to make an order for costs if it considers that the proceeding or part thereof “to have been frivolous or vexatious”.

4. The provision was considered by this Court in Mudie v Gainriver Pty Ltd (No. 2) [2003] 2 Qd R 271. In their joint judgment McMurdo P and Atkinson J said (283-4):

“[35]The words “frivolous or vexatious” are not defined in the Act and should be given their ordinary meaning, unfettered by their meaning in the very different context of striking out or staying proceedings for an abuse of process. … The Macquarie Dictionary defines “frivolous” as “of little or no weight, worth or importance; not worthy of serious notice: a frivolous objection. 2. characterised by lack of seriousness or sense: frivolous conduct …” and “vexatious” as “1. causing vexation; vexing; annoying …”.

[36]Unquestionably, something much more than lack of success needs to be shown before a party’s proceedings are frivolous or vexatious. Although in a different context, some assistance can be gained from the discussion of the meaning of these words in Oceanic Sun Line Special Shipping Company Inc v Fay where Deane J states that “oppressive” means seriously and unfairly burdensome, prejudicial or damaging and “vexatious” means productive of serious and unjustified trouble and harassment, meanings apparently approved by Mason CJ Deane, Dawson and Gaudron JJ in Voth v Manildra Flour Mills Pty Ltd. Those meanings are apposite here.

[37]Whether proceedings are vexatious or oppressive will turn on the circumstances of the case and will include public policy considerations and the interests of justice.” (footnotes omitted)

5. It should be noted that s 4.1.23.(2)(b) makes no mention of proceedings being oppressive. The discretion to award costs arises where a proceeding is frivolous or vexatious. Oppressive conduct in litigation may amount to vexation but it is not a separate ground giving rise to the exercise of a discretion to order costs.

6. Williams JA expressed a similar opinion. His Honour said (290-291):

“[59]… the court must be satisfied that the appeal … was “frivolous or vexatious” within the meaning of those words in the section … Each word is used in everyday language and there is little doubt as to the ordinary meaning of each. The Shorter Oxford English Dictionary defines “frivolous” as follows:

“1. Of little or no value or importance, paltry; (of a claim, charge, etc) having no reasonable grounds. 2. Lacking seriousness or sense; silly.”

That work defines “vexatious” as follows:

“1. Causing or tending to cause vexation, annoyance, or distress; annoying, troublesome. 2. In law. Of an action; instituted without sufficient grounds for winning purely to cause trouble or annoyance to the defendant.”

[60]… the terms have been incorporated into rules of court as a ground upon which a claim may be struck out summarily. … In consequence something of a gloss has been superimposed upon the ordinary meaning of each word when used in that context. But when the terms are not used in the context of striking out a claim which is groundless that gloss is no longer relevant and one must revert to the ordinary meaning of each word. But that is not to say that cases dealing with the striking out of an action on the ground that it was frivolous and vexatious are entirely irrelevant. Dixon J in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 said:

“The application is really made to the inherent jurisdiction of the court to stop the abuse of its process when it is employed for groundless claims”.”

7. The notion underlying this elucidation of the section is that a proceeding will be frivolous if it lacked substance, so there was no reasonable basis for starting it so that its prosecution produced unjustified trouble for the other party.

8. An obvious impediment to establishing the threshold circumstance giving rise to the jurisdiction to award costs is that the P & E Court regarded the Council’s proceeding as being of such weight and importance as to make the enforcement order sought. This Court disagreed with his Honour’s opinion as to the meaning of the relevant planning scheme but that does not, by itself, establish that the proceeding was without substance, or not worth prosecuting even though ultimately unsuccessful. The fact that the P & E Court made the enforcement order makes it difficult to conclude that the proceeding was brought “without sufficient grounds for winning purely to cause trouble or annoyance”, a common meaning of vexatious in this context.

9. In support of its application Ebis exhibited email communications between various officers of the Council, the relevance of which is not immediately apparent. There is the further difficulty that the copies provided to the court are marked in such a way as to obliterate substantial parts of the communications making their comprehension difficult. To the extent they are decipherable the emails seem to do no more than evidence a difference of opinion between officers in various departments within the Council as to the appropriateness of instituting proceedings for an enforcement order. The objection to it came from an officer charged with promoting business activity, such as rental accommodation, within the Council’s area. The emails provide no basis for thinking that those officers who supported taking legal action did not believe that the complaints of noise from Ebis’ neighbours were other than genuine and that the use by Ebis of its property contravened the planning scheme.

10. In this regard it is significant that the opinion of a reputable firm of solicitors was obtained with respect to Ebis’ argument that the use of the premises was lawful.

11. The Council’s solicitor’s advice was, of course, privileged, and has not been provided to the court. Ebis does not rebut the available inference that the Council acted in accordance with its solicitor’s advice. There is certainly no evidence that the Council had advice, which it ignored, that Ebis’ use of the premises was lawful. The onus of proving frivolity or vexation lay on it.

12. The submissions advanced in support of the application are that the consequences, should the view of the planning scheme adopted by the P & E Court be accepted, would have given rise to difficulties in the conduct of holiday accommodation businesses in the Council’s area; and that the application for the enforcement order was a response to “disputed complaints about noise” and was “a politically convenient means of “oiling a squeaky door” complainant … without a thought for the widespread and long term consequences of the position taken … .”

Footnotes

1. [2010] QCA 379. ↩