Australia: Costs – further evidence that the rules do not require change

Last Updated: 15 July 2016
Article by Amye Mcarthur

In the two recent cases of Allen & Anor v Cairns Regional Council & Anor No. 31 and Ferreyra & Ors v Brisbane City Council, 2 the Planning and Environment Court has demonstrated a reluctance to order costs in the context of declaratory proceedings against parties with non-commercial interests in the result.

The decisions show that, while the Court does have the discretion to make orders for costs,3 it will not ordinarily do so unless it is satisfied that a party has acted unreasonably or for an improper purpose.

POWER TO AWARD COSTS

The power to award costs is found in section 457(1) of the Sustainable Planning Act 2009. Section 457(2) contains a nonexhaustive list of factors the Court may consider in deciding whether or not to exercise the discretion.

ALLEN & ANOR V CAIRNS REGIONAL COUNCIL & ANOR

The Applicant (Allen) operated a wholesale nursery and, in response to a show cause notice issued by the Council, filed an Originating Application seeking declarations that the existing use was lawful and that the development application for material change of use was not required.

In the proceedings, Allen successfully made out a pre-existing lawful use, and the declarations were granted. The Council supported the application in Court. The Council's support was based on investigations carried out after the show cause notice was served. Allen and the Council sought costs against the Second Respondents (the Neighbours) who had opposed the declarations on the basis that the Neighbours unnecessarily prolonged the proceedings.

In refusing to order costs against the Neighbours, His Honour Judge Rackemann noted:

  1. The fact that the Neighbours were the only unsuccessful litigants was relevant, but not the most important consideration.
  2. The rejection of a Calderbank 4offerwas relevant, but not fatal to the Neighbours.
  3. The Neighbours had no commercial interests in the proceedings, unlike Allen who sought the declarations in relation to a business operated from the premises.
  4. Even if the Neighbours had not contested the declarations, the declarations could not be obtained without satisfying the Court that they were necessary and appropriate.
  5. His Honour was not convinced that the Neighbours had acted unreasonably, either leading up to or during the proceedings.
  6. His Honour was not convinced that the Neighbours had no reasonable prospect of success.

FERREYRA & ORS V BRISBANE CITY COUNCIL

This case concerned Council's decision to approve a permissible change to the second respondent's development approval, namely, the construction of an acoustic wall at the Fringe Bar in Brisbane City. The Applicants owned residential units across from the bar and commenced declaratory proceedings challenging the Council's decision.

The Second Respondent was wholly successful in resisting the application, and brought a counter-claim for costs against the Applicants.

In refusing to order costs against the Applicants, Her Honour Judge Bowskill noted:

  1. In some cases the success of the parties will be a significant consideration, and this is particularly so in cases involving commercial competitors.
  2. The Applicants were motivated by concerns about the amenity of their residential units, whereas the Second Respondent, as the operator of the bar, had a commercial interest in the proceedings.
  3. The Applicants rejected an offer to compromise, however Her Honour was not convinced that the Applicants acted unreasonably in rejecting the offer (which involved including some glass windows in the acoustic wall).
  4. Although the Applicants were unsuccessful, it was not unreasonable for them to have brought the application.

ANALYSIS

In both cases, the party seeking an order for costs relied heavily upon its complete success in the proceedings, and in both cases the Court noted that this was a relevant consideration, but not a determinative one.

Given the non-commercial nature of the interests of the challenging parties, the Court needed to be satisfied that the behaviour of the parties warranted a costs order being made against them. Such conduct was not found in either case, despite the fact that offers to settle or compromise had been rejected.

It is noted that the incoming Planning and Environment Court Act 2016 reinstates the general position that each party to a proceeding in the Planning and Environment Court must bear their own costs, unless particular circumstances apply.

Circumstances where the Court will have discretion to make an order for costs include where the Court considers the proceeding was started, or conducted by a party to the proceeding, primarily for an improper purpose, or where the Court considers a party has brought a frivolous or vexatious proceeding. The Act also identifies other exceptions to the general costs rule that deal with specific situations, such as:

  1. proceedings for enforcement orders (where the Court may award costs against the person to whom the order is directed); or
  2. if the Court declares that an owner wrongly sought the cancellation of a development approval in contravention of the owner's consent requirement (where the Court must award costs
  3. against the owner); or
  4. if the Court allows an assessment manager to withdraw from an appeal (where the Court must not award costs against the assessment manager).

Footnotes

1 [2016] QPEC 25.
2 [2016] QPEC 13.
3 s 457(1) Sustainable Planning Act 2009.
4 [1975] 3 All ER 333.

© HopgoodGanim Lawyers

Award-winning law firm HopgoodGanim offers commercially-focused advice, coupled with reliable and responsive service, to clients throughout Australia and across international borders.

2015 AFR Beaton Client Choice Awards:
Best Law Firm (revenue $50m - $200m)
Best Professional Services Firm (revenue $50m - $200m)

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.