Application for further disclosure – agreed approach
reached at the hearing – original request for further
disclosure narrowed – costs – default in the
court's procedural requirements – s. 4.1.23
Integrated Planning Act 1997
Facts: The Appellant/Applicant
(Applicant) made an application in a pending
proceeding seeking further disclosure from the Respondent of
documents relating to development applications and assessment,
policies and strategies in respect of the Eumundi Markets. The
primary proceeding relates to the Applicant's claim for
compensation for reduction in value of an interest in land as a
result of the Respondent's refusal to assess a development
application under a superseded planning scheme.
At the hearing of the application for disclosure, the parties
agreed on the terms of a consent order requiring the Respondent to
provide further disclosure of certain documents, as well as an
affidavit deposing that no further documents of the type sought by
the Applicant exist. Accordingly, the only remaining issue for the
Court's consideration was the question of costs.
The Applicant sought an order that the Respondent pay its costs,
on the basis that the position as resolved between the parties
should have been reached at an earlier point in time so as to avoid
the costs incurred by this application. It argued that the
Respondent only indicated a willingness to make further disclosure
during the hearing, and there had therefore been default in the
Court's procedural requirements as referred to in section
4.1.32(2)(e) of the Integrated Planning Act 1997
The Respondent resisted the application arguing that it had
always complied with its disclosure requirements. It pointed to the
extent of the initial request for further disclosure, and contended
that it was not until the hearing that the Applicant narrowed the
ambit of its request. The Respondent also pointed to the general
rule in section 4.1.23(1) of the IPA that each party bear its own
Decision: The Court held that:
Ventilation of the issues at the hearing of the application was
instrumental in the resolution of the agreed position as to further
The agreed further disclosure fell a considerable degree short
of the breadth and extent of the further disclosure originally
sought by the Applicant.
It was not appropriate to characterise the Respondent's
conduct in terms that it had "defaulted in the court's
procedural requirements". No occasion arose for any departure
from the general rule that each party bear its own costs.
Alternatively, in the exercise of any discretion, the Court
would not have concluded that it was appropriate to make an order
as to costs.
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