Costs – where application brought to be joined as a party pursuant to r 69(1)(b) of the Uniform Civil Procedure Rules 1999 – where application unsuccessful – where application misconceived – whether costs sought be awarded pursuant to s 457 of the Sustainable Planning Act 2009 – where recent amendment to Sustainable Planning Act 2009
Sustainable Planning Act 2009 (Qld), s 367, 375, 457
Uniform Civil Procedure Rules 1999 (Qld), r 69(1)(b)
Facts: This was an application for costs brought by the Applicant against the Birkdale Progress Association Inc (Association).
On 7 November 2007, pursuant to an order of the Court, the Applicant was granted a development permit for a material change of use for a biomass power plant at Hillview Road, Mount Cotton. The development was one that had attracted a significant degree of critical attention from the local community.
On 11 December 2012, the Applicant commenced proceedings by way of an Originating Application seeking an order permitting a permissible change to the existing development approval pursuant to ss 367 and 375 of the Sustainable Planning Act 2009 (SPA). That application was not opposed by Council or the Department of Environment and Heritage Protection.
On 21 December 2012, the Association filed an Application in Pending Proceeding seeking an order pursuant to r 69(1)(b) of the Uniform Civil Procedure Rules 1999 (UCPR) to be joined as a party to the permissible change application. The grounds advanced in support of its application were essentially:
- that the Association's interests would be affected by any decision made in relation to the Originating Application;
- that the Association would, if joined as a party, place evidence before the Court relevant to the permissible change application; and
- that the Applicant was put on notice of the Association's intention to be joined.
The Association had not been a party in any previous proceedings concerning the proposed development.
The joinder application was dismissed by the Court and an order was made granting the permissible change application. The Applicant sought its costs associated with the joinder application, fixed at $2,000.
Section 457 of the SPA had recently been amended to widen the Court's discretion to award costs. The Applicant contended that it was entitled to a costs order in its favour because:
- it was successful in opposing the joinder application;
- it was clear from the Association's affidavit material that not only did the application have no reasonable prospects of success but was doomed to fail;
- the Association was not able to identify a single issue of concern associated with the proposed changes to the development approval; and
- the Applicant had incurred legal costs preparing for and opposing the application, including perusal of affidavit material, preparing an outline of argument and attendance at Court.
In its submissions, the Association conceded that its application to join may have had low prospects of success but contended that it was not made for an improper purpose. It also noted that it had not been warned that if it persisted with its application an adverse costs order would be sought. The Association submitted that each party should bear its own costs.
Decision: The Court held, in allowing the application for costs, that:
- Generally speaking, the purpose of costs orders was not to punish but to compensate.
- While the existence of a letter warning the Association that an adverse costs order would be sought if it persisted with its joinder application might have reinforced the Applicant's position as to costs, the absence of such a letter was not fatal. The Association was very likely to have proceeded with its application regardless of any warning about costs.
- It was accepted that the Association was acting in the best interests of its members and some of the disaffected members of the Birkdale community, and that the Association was a not-for-profit organisation which had no commercial interest in the proceeding. However, while those matters might militate against the making of an adverse costs order, they were not of their own or together determinative of the issue.
- On any fair reading of the material filed on behalf of the Association, it was clear that it was not so much concerned with the application before the Court concerning permissible changes, but with the substantive development approval granted in 2007. It was reasonable to describe the Association's application as one commenced and prosecuted with no reasonable prospects of success.
- The relevant changes to the development were designed to reduce the impacts on the environment and the amenity of those residents who might be affected by the power plant, would result in a more desirable environmental outcome overall and came about largely as a result of meetings between various experts concerned with matters such as noise, air quality and the broader question of amenity. In this context and having regard to the nature of the proceedings that were before the Court at the relevant time, the Association's underlying purpose for being joined could be described as being an improper one.
- The Applicant was entitled to the costs order it sought.
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.