38/13 Fanirata Pty Ltd v Logan City Council & Anor [2013] QPEC 55 (Robin QC DCJ - 15 August 2013)

Costs – Application for security for costs – Rules 670, 671 (h) & 672 Uniform Civil Procedure Rules – Rule 3(2) Planning and Environment Court Rules 2011 – ss.457, 493(2) & 495(1) Sustainable Planning Act 2009.

Facts: This was an application for an order for security for costs against a submitter appellant.

The subject development approval was for a proposed multi-unit development on land adjoining the submitter's land.

The development proponent sought an order that the submitter appellant pay $25,000 into Court as security for costs pursuant to Rule 670 and 671(h) of the UCPR. The ground relied upon was that the issues required the proponent to engage expert witnesses in circumstances where the submitter appellant had no intention of engaging his own expert witnesses.

Rule 671(h) of the UCPR entitled the Court to order a plaintiff to give security for costs only if it is satisfied that the justice of the case requires the making of the order. The Court therefore considered whether the submitter appellant was a plaintiff for the purposes of Rule 671.

Decision: The Court held, that:

1. The Court was not prepared to say that the submitter appellant was proceeding inappropriately. He was the immediate neighbour of the site. It could not be said that he ought to be satisfied by the provision of expert information as may have been made available to him to date, that his fears as a neighbour that he may suffer if the advice is wrong, ought to be set aside.
2. The submitter appellant could not be regarded as a plaintiff for the purposes of Rule 671. Fraser Island Defenders Organisation v Maryborough City Council [1987] QPLR 23 referred to.
3. The arguments in Fraser Island Defenders Organisation v Maryborough City Council were strengthened by reason of changes in the law that governed appeals such as the present, whereby a submitter no longer has the responsibility of proving his appeal should be allowed. Rather the developer has the responsibility of proving that it should be dismissed.
4. The Courts discretion was unfettered.
5. There was nothing whatever to raise any concern that should the submitter appellant suffer an adverse costs order he would be unable to satisfy it.

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