Australia: 56/11 Chief Executive, Department of Transport and Main Roads v Club Cavilll Pty Ltd [No. 2] [2011] QPEC 118

Planning and Environment case updates

(Robin QC, DCJ - 8 September 2011)
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Application for costs occasioned by adjournment – originating application seeking declaration that development approval had not lapsed – the respondent, now seeking costs, unsuccessfully resisted – principal application adjourned when the non-party landowner intervened, seeking an adjournment to consider its position – respondent blamed applicant for failing to join owner – whether discretion to award costs arose – whether discretion should be exercised – s. 457(2) Sustainable Planning Act – rr. 3, 4 and 8 Planning and Environment Court Rules 2010 – rr. 5, 62 and 489 Uniform Civil Procedure Rules

Facts: The Respondent (Cavill) applied for an order that the Applicant (DTMR) pay Cavill's costs thrown away by an adjournment.

The primary proceeding brought by DTMR sought a declaration that a development approval had not lapsed, thus having the effect of deferring DTMR's obligation to pay compensation for a land resumption. Before the conclusion of the hearing in the primary proceeding, a lawyer for Sunrise Waters (the new owner of the land which took the benefit of the development approval) intervened and asked that no decision be made until Sunrise Waters had an opportunity to consider its position and be heard.

An adjournment was granted. Sunrise Waters subsequently filed an application seeking its joinder as a Respondent. That application was returnable on the adjourned date for the primary proceeding. Joinder was ordered and Cavill's costs of the day were reserved.

Cavill now sought its costs thrown away by the adjournment, on the grounds that DTMR failed to join a relevant party to the primary proceeding, namely Sunrise Waters as owner of the land. Cavill relied on section 457(2) of the Sustainable Planning Act 2009 (SPA), particularly the following subsections:

"(d) a party has incurred costs because the party is required to apply for an adjournment because of the conduct of another party;
(f) a party has incurred costs because another party has defaulted in the Court's procedural requirements;
(i) an applicant ... does not properly discharge its responsibilities in the proceeding."

Cavill also relied upon rule 8(1) of the Planning & Environment Court Rules 2010 (PEC Rules) which requires an originating application to name as a Respondent "the entity directly affected by the relief sought", and rule 62(1) of the Uniform Civil Procedure Rules 1999 (UCPR) which states that "[e]ach person whose presence is necessary to enable the court to adjudicate effectually and completely on all matters in dispute in a proceeding must be included as a party to the proceeding".

Decision: The Court held that:

  1. Section 457(2)(d) of the SPA was not available because it only applies in favour of "the party" required to apply for an adjournment.
  2. A failure to comply with rule 8(1) of the PEC Rules had not been demonstrated. That rule is concerned with identifying a proper contradictor with an interest in resisting the relief sought. No estoppel would arise from dismissal of an application for a declaration.
  3. The requirements in rule 8(1) of the PEC Rules and rule 62(1) of the UCPR do not give rise to a procedural requirement. Section 457(2)(f) of the SPA had not been triggered.
  4. However, it is an applicant's responsibility in commencing a proceeding to ascertain and give notice to, if not join as a party, the owner of the relevant land. On that basis, section 457(2)(i) of the SPA was triggered because DTMR did not properly discharge its responsibilities in the proceeding.
  5. Despite that, the Court was not persuaded to exercise its discretion to award costs against DTMR, for the following reasons:
    1. The originating application was successful, and it could be said that Cavill ought not to have opposed it;
    2. Cavill was as willing as DTMR to proceed in the absence of Sunshine Waters;
    3. Cavill incorrectly identified itself as the owner of the land (a situation that had been overtaken by events) until a very late stage in the proceeding;
    4. Cavill did not oppose the adjournment sought by Sunrise Waters; and
    5. Cavill belatedly acknowledged Sunrise Waters' entitlement to be heard.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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