Queensland Construction Materials P/L v Redland City Council & Ors [2010] QCA 248

SUPREME COURT OF QUEENSLAND

CITATION: Queensland Construction Materials P/L v Redland City Council & Ors [2010] QCA 248

PARTIES: QUEENSLAND CONSTRUCTION MATERIALS PTY LTD ACN 002 202 548 (appellant/respondent) v REDLAND CITY COUNCIL (respondent/not a party to the application) DON BAXTER, BIRKDALE PROGRESS ASSOCIATION INC (first co-respondent/second applicant) FRIENDS OF STRADBROKE ISLAND INC (second co-respondent/third applicant) STRADBROKE ISLAND MANAGEMENT ORGANISATION INC. (third co-respondent/fourth applicant) LUCY TRIPPETT (fourth co-respondent/not a party to the application) ELISABETH GONDWE (fifth co-respondent/sixth applicant) WILDLIFE PRESERVATION SOCIETY OF QUEENSLAND BAYSIDE BRANCH (QLD) INC (sixth co-respondent/fifth applicant) CREINA MOORE (seventh co-respondent/seventh applicant) JOSEPHINE WELLS (eight co-respondent/ninth applicant) GEOFFREY MOORE (ninth co-respondent/eighth applicant) KERRIE TAPP (tenth co-respondent/first applicant) DALE RUSKA (eleventh co-respondent/tenth applicant) CHIEF EXECUTIVE, ENVIRONMENTAL PROTECTION AGENCY (twelfth co-respondent/not a party to the application) CHIEF EXECUTIVE, DEPARTMENT OF MAIN ROADS (thirteenth co-respondent/not a party to the application)

FILE NO/S: Appeal No 12616 of 2009 / Appeal No 12627 of 2009 / DC No 2627 of 2008

DIVISION: Court of Appeal

PROCEEDING: Application for Leave Integrated Planning Act – Further Orders

ORIGINATING COURT: Supreme Court of Queensland

DELIVERED ON: Judgment delivered 23 July 2010 / Further Orders delivered 10 September 2010

DELIVERED AT: Brisbane

HEARING DATE: Heard on the papers

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

ORDERS: In each of Appeal Nos 12616 of 2009 and 12627 of 2009: / 1.Orders 1, 2 and 4 made on 23 July 2010 are confirmed. / 2.Order 3 made on 23 July 2010 is amended by omitting the words 'sub-sections 3.2.1(3) and (5)' and inserting in their place the words 'sub-section 3.2.1(5)'. / 3.There is no order as to costs.

CATCHWORDS: PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – OTHER CASES – FAILURE IN PORTION OF A CASE – where two proceedings with different applicants were granted leave to appeal – where the applicant in the first proceeding had a measure of success and where the applicant in the second proceeding did not argue the point that proved successful – where the respondent in both proceedings had some measure of success – where the applicant in the second proceedings raised issues of public interest and where the applicant did not stand to gain personally from the litigation – whether there should be an order in relation to costs / Integrated Planning Act 1997 (Qld), s 3.2.1(5) (repealed) / Native Title Act 1993 (Cth) / Racial Discrimination Act 1975 (Cth) / Uniform Civil Procedure Rules 1999 (Qld), r 766(1)(d), r 766(6)(d) / ACN 005 408 462 Pty Ltd (formerly TEAC Australia Pty Ltd) (No 2) [2008] FCA 1184 - cited / Barro Group P/L v Redland Shire Council (2009) 169 LGERA 326; [2009] QCA 310 - cited / Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 - cited / Queensland Construction Materials P/L v Redland City Council & Ors [2010] QCA 182 - cited

COUNSEL: D C Rangiah SC, with J S Brien, for the first applicant / T W Quinn, with S P Fynes-Clinton, for the second to tenth applicants / M Hinson SC, with H R Milne, for the respondent

SOLICITORS: Just Us Lawyers for the first applicant / Carew Lawyers for the second to tenth applicants

1. McMURDO P: I agree with the further orders proposed by Applegarth J and with his Honour's reasons.

2. CHESTERMAN JA: I agree with the orders for costs proposed by Applegarth J, and with his Honour’s reasons for making those orders.

3. APPLEGARTH J: These two proceedings were heard together. The parties have made submissions in writing on the issue of costs in the light of the Court’s decision.¹ The fact that there were separate proceedings with different applicants in this Court may not have been apparent from certain court document headings that described Kerrie Tapp as the first applicant and Don Baxter and others as the second to ninth applicants.

4. The first proceeding was brought by Mr Baxter and others (CA 12616/09). Their application to this Court, their draft Notice of Appeal and their submissions raised questions of law concerning the interpretation and application of the Native Title Act 1993 (Cth) (“NTA”), the Racial Discrimination Act 1975 (Cth) (“RDA”) and the Integrated Planning Act 1997 (Qld) (“IPA”). This included an issue as to whether the respondent (QCM) complied with the requirements of s 3.2.1(5) of the IPA in relation to the evidence that supported its application for development approval. This was the only issue upon which the applicants succeeded. But the consequence of that defect, in conformity with this Court’s decision in Barro Group P/L v Redland Shire Council,² was that their appeal was allowed and an order was made that QCM’s appeal to the Planning & Environment Court be dismissed.

5. The second proceeding (CA 12627/09) was brought by Ms Tapp. She was an objector to QCM’s application for development approval, and is a member of the native title claim group with an interest in the potential environmental impact of the proposed development. Ms Tapp’s application for leave to appeal, her draft notice of appeal and her written submissions did not raise the issue concerning compliance with s 3.2.1(5) of the IPA. Instead, her first argument focused on the rights, if any, of native title holders and registered native title claimants to refuse to consent to the making of a development application under the IPA and to be notified of such an application. Her second argument related to the effect of the RDA.

6. The applicants in both proceedings were granted leave to appeal because the proceedings raised questions of considerable public interest. These included points of some difficulty which are likely to arise in future applications for development approval when land is subject to claims for native title. For these reasons the Court concluded that leave to appeal should be granted in both matters.

The submissions of QCM on costs

7. QCM submits that the appropriate order for costs is:

(a)that the applicants in CA 12616/09 (Baxter and others) pay one-third of QCM’s costs of and incidental to that proceeding; and

(b)that the applicant in CA 12627/09 (Tapp) pay QCM’s costs of and incidental to that proceeding.

In relation to the proceeding by Mr Baxter and others, QCM submits that the preliminary view on costs expressed by Chesterman JA and Applegarth J that the applicants pay one-third of QCM’s costs of and incidental to both applications reflected the applicants’ ultimate success and the limited basis for that success relative to the NTA and RDA issues that were argued at greater length.

8. As to the proceeding brought by Ms Tapp, QCM submits that Ms Tapp did not succeed upon the issues raised by her and that, as a consequence, she should be ordered to pay QCM’s costs of and incidental to that proceeding.

The submissions of Mr Baxter and the other applicants in CA 12616/09

9. Mr Baxter and the applicants in CA 12616 of 2009 rely upon their success in that application and submit that “it is unnecessary to spread the costs of that success across the two applications”, as Ms Tapp did not raise the point that proved successful.

10. As to the costs in CA 12616/09, the applicants submit that a dominant consideration is the necessity for them to bring the appeal in order to vindicate their entitlement to overturn the decision secured by QCM, and maintained by it, notwithstanding the decision in Barro Group.⁴

11. Mr Baxter and the other applicants submit that this was not a case in which it is appropriate to apportion costs according to “issues”. It is unlike lengthy trials in which it is sometimes possible and appropriate to apportion costs based upon the time occupied on separate and identifiable issues. The applicants submit that the Court should be slow to conclude that the costs in a one day appeal should be apportioned according to issues in a way that would deprive them as successful appellants of their costs of the application and appeal. If, however, it was appropriate to deprive them as successful appellants of some parts of their costs one way to do so would be to exclude from an order awarding costs to them the fees of the second counsel who argued the NTA and RDA points upon which they did not succeed.

The submissions of Ms Tapp on costs

12. Ms Tapp relies upon the fact that the appeal to this Court was successful, and the fact that QCM’s appeal to the Planning & Environment Court was dismissed, although not on a ground that was set out in her draft Notice of Appeal. She submits that it would be unjust to have a costs order made against her in circumstances where QCM’s litigation in the Planning & Environment Court has been dismissed.

13. She further submits that the considerations accepted in Oshlack v Richmond River Council⁵ are relevant to costs orders in proceedings that may be described as “public interest litigation” under environmental laws. In that regard she submits that she did not stand to gain personally from the litigation and was motivated by a desire to act in the public interest and to ensure that the law was complied with. She further relies upon the fact that her appeal raised and resolved significant issues as to the interrelationship between the IPA and the NTA, with important implications for developers, councils and native title claimants in the future. Leave to appeal was granted to her on this basis.

Determination of costs issues

14. The Court has a broad discretion to make the order as to the whole or part of the costs of an appeal that it considers appropriate.⁶ The provisional views expressed in relation to costs did not differentiate between the applicants, and attempted, without the advantage of written submissions, to assess the measure of the parties’ respective success and failure. The written submissions on costs raise additional issues for consideration. However, they raise familiar issues about how success in litigation is claimed and measured. Parties in disputes over costs interpret an event, namely the outcome of litigation, according to their version of the truth as shaped by their perception of the litigation.⁷ Unsurprisingly, the applicants in both proceedings point to their success in achieving the practical result that QCM’s appeal to the Planning & Environment Court was dismissed. QCM points to the limited basis upon which the applicants succeeded, the fact that Ms Tapp did not rely upon the ground that resulted in the appeal to the Planning & Environment Court being dismissed and the applicants’ lack of success on native title and racial discrimination issues that occupied a substantial part of the hearing and a substantial part of the parties’ written submissions.

15. Each party can look at the result of the litigation and claim to have succeeded to some extent. The Court is required to adopt what has been described as a “positivist approach” in assessing the outcome of the litigation.⁸ Assessed by that standard the applicants in the first proceeding had a measure of success and obtained an order that has the practical effect of requiring QCM to recommence the development approval process by a new application. Ms Tapp derived the same practical benefit, although she did not argue the point that proved successful. None of the applicants were successful in their arguments concerning native title and racial discrimination issues. QCM succeeded upon those issues.

16. The submissions of Mr Baxter and the other applicants in CA 12616/09 tend to downplay the time and costs associated with litigation of issues that arose under the NTA and the RDA. There may have been some indivisible costs such as filing fees and correspondence. The appeal occupied a single day’s hearing and it would have been necessary to conduct an appeal if the applicants had confined their argument to the one point upon which they succeeded. However, the appeal was not so confined and substantial costs in preparation of written submissions were occupied in relation to issues that arose under the NTA and the RDA.

Formal orders and declarations

22. QCM raises an issue concerning the form of order made in Order 3. The form of order pronounced on 23 July 2010 involves a declaration that:

“The development application did not satisfy subsections 3.2.1(3) and (5) of the Integrated Planning Act 1997.”

That form of declaration was intended to reflect the applicants’ success on the issue concerning compliance with s 3.2.1. What were described by the primary judge as “the s 3.2.1 points” did not relate only to the NTA and the RDA issues. They also related to satisfaction of the requirements of s 3.2.1(5). Subsection 3.2.1(3) did not apply to the extent that subsection 3.2.1(5) applied to the application. However, because the application did not satisfy the requirements of s 3.2.1(5) arguably s 3.2.1(6) did not operate to exempt the application from compliance with s 3.2.1(3). The application did not comply with s 3.2.1(3) because it was not supported by the written consent of the owner of the land. The form of declaration was not intended to reflect any success on the NTA and RDA issues. To avoid any uncertainty and to ensure that the declaration reflects the intended scope of the declaration, Order 3 should be amended pursuant to UCPR r 388 to omit the words “subsections 3.2.1(3) and (5)” and to insert in their place “subsection 3.2.1(5)”.

23. QCM also raises for consideration amendment of the orders made in CA 12627/09 on the basis that the orders pronounced on 23 July 2010 allowed each appeal in circumstances in which the draft notice of appeal in CA 12627/09 do not raise any s 3.2.1(5) issue. Ms Tapp seeks to uphold the form of orders made on the basis that this Court may allow an appeal even though the ground for allowing the appeal is not stated in the Notice of Appeal.¹⁰ QCM’s point has some merit and the original orders might have achieved the same practical result if only the appeal in CA 12616/09 had been allowed. However, in circumstances in which both appeals were heard together and the legal consequence of the conclusion concerning s 3.2.1(5) was to order that the appeal to the Planning & Environment Court be dismissed, the orders proposed should stand. Ms Tapp sought an order in those terms in her Notice of Appeal.

Conclusion

24. I would confirm paragraphs 1, 2 and 4 of the orders made on 23 July 2010. I would amend order 3 in the respect stated above. In relation to costs I would order that there be no order as to costs.

Further orders

25. In each of appeal numbers 12616 of 2009 and 12627 of 2009:

1.Orders 1, 2 and 4 made on 23 July 2010 are confirmed.

2.Order 3 made on 23 July 2010 is amended by omitting the words 'sub-sections 3.2.1(3) and (5)' and inserting in their place the words 'sub-section 3.2.1(5)'.

3.There is no order as to costs.

Footnotes

1. Queensland Construction Materials P/L v Redland City Council & Ors [2010] QCA 182. ↩

2. (2009) 169 LGERA 326; [2009] QCA 310. ↩

3. Queensland Construction Materials P/L v Redland City Council & Ors [2010] QCA 182 at [2], [25]. ↩

4. First in the Planning & Environment Court on 20 March 2009 in [2009] QPEC 9 and affirmed in this Court on 16 October 2009 in [2009] QCA 310. ↩

5. (1998) 193 CLR 72 at [20], [48], [134], [137] and [144]. ↩

6. Uniform Civil Procedure Rules 1999, r 766(1)(d). ↩

7. ACN 005 408 462 Pty Ltd (formerly TEAC Australia Pty Ltd) (No 2) [2008] FCA 1184 at [3] – [4]. ↩

8. Ibid. ↩

9. Supra. ↩

10. UCPR r 766(6)(b). ↩