The appeal by Mirvac Pacific Pty Ltd was against the Council's deemed refusal of a request to change a condition of a development approval which would require upgrading works on land leased by Queensland Rail. The Council sought to join Queensland Rail to the appeal but was unsuccessful.
The parties agreed that the applicable costs regime for the application was that prior to 19 May 2017 when the Local Government Electoral (Transparency and Accountability in Local Government) and Other Legislation Amendment Act 2017
commenced. At this time the application of section 457 of the SPA directed the Court to consider the following non-exhaustive list of factors in exercising its discretion to award costs:
"(a) the relative success of the parties in the proceeding;
(c) whether a party commenced or participated in the proceeding for an improper purpose;
(d) whether a party commenced or participated in the proceeding without reasonable prospects of success; and
(g) whether the proceeding involved an issue that affects or may affect a matter of public interest" (at ).
The Court noted that relevant to its considerations was that Queensland Rail had been wholly successful in resisting the joinder application and that the application for joinder persisted in the face of timely notice of grounds of opposition.
The Court found that the joinder application was brought for an improper purpose
The Court accepted Queensland Rail contention that the joinder application was brought for the purpose of seeking to "bring QR to the table" to negotiate issues of ownership and maintenance of the bridge.
In rejecting the Council's submission that the application was to assist the Court to properly determine the issues the subject of the appeal, the Court noted the Council's acceptance of the fact that the Court did not have jurisdiction to impose an order rendering Queensland Rail responsible for the ongoing ownership and maintenance of the bridge.
The Court found that there was no public interest in bringing the joinder application
The Court noted the unsuccessful joinder application as a dominant factor in determining whether there was public interest in the Council's joinder application. Mirvac had resisted the application on the basis that there was an impossibility of compliance given the necessity of Queensland Rail's cooperation for the works to be performed. This basis raised the question of Queensland Rail's attitude towards the carrying out of the works. The Court determined that an application to join Queensland Rail to the proceedings, as opposed to ascertaining its position in relation to the works, did not advance the public interest.
The Court also found that a joinder application should not be used as a vehicle to entangle Queensland Rail in proceedings about decisions concerning the ownership and management responsibilities for the bridge, as the Court did not have jurisdiction to deal with these issues.
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