Insights

In brief

The case of Phipps v The Chief Executive Department of Local Government, Infrastructure and Planning; and Phipps v Somerset Regional Council and Anor [2018] QPEC 25 concerned applications brought by the Somerset Regional Council (Council) and the State Government for costs against the Appellants.

The applications arise from the success of the Council and the State Government in prior proceedings, in which the Court upheld:

(a)  the Council's decision to refuse a development application seeking a development permit for a material change of use for intensive animal industry (poultry farm); and

(b)  the State Government's decision to refuse an environment authority for a prescribed environmentally relevant activity.

 The Court ordered that the Appellants pay the costs of the Council and the State Government to be assessed on the standard basis.

Applicable costs regime

The prior proceedings were commenced on 20 June 2017. It was therefore accepted by the Council and the State Government that their applications fell for consideration under the "new" costs regime, rather than the provisions which formerly provided for an open discretion prior to 19 May 2017.

Accordingly, the general rule is that each party must bear its own costs in the proceedings. However, the Court may make an order for costs in certain circumstances, which relevantly include the following:

  • where the Court considers the proceeding to have been frivolous or vexatious;
  • where the Court considers an applicant for a development application did not give all the information reasonably required to assess the development application; or
  • where an applicant does not properly discharge its responsibilities in the proceeding.

Contention of the Council and the State Government

The central contention of the Council and the State Government was that the prior proceedings were frivolous or vexatious.

The Court noted that the primary issue confronting the Appellants in the prior proceeding was the potential for odour nuisance. In this regard, it observed that (at [20]):

“the proceedings were brought for the expansion of a commercial operation by the [Appellants] who, having abandoned reliance on the expert reports which they had commissioned and having not engaged any further experts of their choosing, decided to continue the litigation in the face of unanimous expert adverse opinions obtained by the other parties in circumstances where they had no reasonable prospects of success thereby putting the other parties, which in this instance are public bodies, to expense. They did so with notice as to their responsibility in the litigation and as to the possible consequences in terms of costs.”

 Accordingly, the Court held that it was open as a matter of the Court's jurisdiction and appropriate in the exercise of the Court's discretion to order that the Appellants pay the costs of the prior proceedings, limited to a particular period of time.

The Court held that the Appellants ought to pay costs from:

“[the] point in time after they had a reasonable opportunity to review and consider the joint expert report, as from that point [the Appellants] were aware that the unanimous view of the only experts engaged on the primary issue in the prior proceedings (i.e. the potential for adverse odour impacts) was adverse to them.

Whilst the Appellants did not accept the view of the experts, they, as the party with the onus, had no competing expert evidence to support their contention that the proposal would have no adverse impact but nevertheless proceeded in the absence of any such evidence notwithstanding the warnings which at that time had been given by the Council and State Government.”

The Court ordered that the Appellants pay the costs of the Council and the State Government to be assessed on a standard basis.

Whilst the Appellants did not accept the view of the experts, they, as the party with the onus, had no competing expert evidence to support their contention that the proposal would have no adverse impact but nevertheless proceeded in the absence of any such evidence notwithstanding the warnings which at that time had been given by the Council and State Government.”
 
The Court ordered that the Appellants pay the costs of the Council and the State Government to be assessed on a standard basis.

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal advice. Please seek your own legal advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.​

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