(Searles DCJ - 31 July 2015)
Thurecht
& Anor v Brisbane City Council (No 2) [2015] QPEC 35
Procedure – costs – where, prior to the appeal, Appellants made numerous attempts at agitating application to have the matter heard and determined by the ADR Registrar – whether the application had been dismissed – whether discretion should be exercised for costs order – conduct of Appellants in persisting with application.
Facts: This matter concerned an application for costs, following the decision of His Honour Judge Searles, dismissing the appeal and reserving costs on the basis that the parties provide written submissions to the Court.
The Council sought costs incurred in responding to the Appellants' attempts to re-agitate an application to have the appeal heard by the ADR Registrar. The Council did not seek costs for resisting the appeal.
Council argued the Court should exercise its discretion under s 457 and award costs in its favour on the grounds that the Council was put to unnecessary and considerable effort and expense in responding to the Appellants' requests to have the appeal heard by the ADR Registrar. The Appellants persisted, despite the decision by His Honour Judge Everson to dismiss the Appellants' application, to agitate for the appeal being heard and determined by the ADR Registrar.
The Appellants argued that s 457 should not be applied because His Honour Judge Everson did not specifically dismiss the ADR application, and they were therefore entitled to re-agitate the application.
The Appellants also argued that given the power under s 491B to refer matters to the ADR Registrar is in its infancy, it would be inappropriate for the Appellants to pay the Council's cost where the boundaries of the provision is yet to be tested.
Decision: The Court held, in making orders in favour of the Council:
- The Appellants should have appreciated that their application did not have reasonable prospects of success following the decision of His Honour Judge Everson to dismiss the application.
- The Appellants' repeated attempts to have the matter heard and determined by the ADR Registrar constituted unreasonable conduct in the proceedings.
- It was appropriate in the circumstances to exercise the Court's discretion under section 457.
