PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:	GG Propco No 3 Pty Ltd v Sunshine Coast Regional Council & Ors [2021] QPEC 38	
PARTIES:	GG PROPCO NO 3 PTY LTD
(ACN 637 112 479)
(appellant)
v
SUNSHINE COAST REGIONAL COUNCIL
(co-respondent)
and
JAY LUCKIE 
(co-respondent by election)
and
JOSEPH OLIPHANT AND JEO PROPERTY GROUP
(co-respondent by election)
and
CATHERINE AND CRAIG BAYNHAM
(co-respondent by election)	
FILE NO:	2909/2020	
DIVISION:	Planning and Environment 	
PROCEEDING:	Hearing of an application	
ORIGINATING COURT:	Planning and Environment Court of Queensland at Brisbane	
DELIVERED ON:	29 July 2021	
DELIVERED AT:	Brisbane	
HEARING DATE:	Determined on the papers	
JUDGE:	RS Jones DCJ	
ORDER:	The appellant and the first co-respondent by election are to pay their own costs of the application.	
CATCHWORDS:	PLANNING AND ENVIRONMENT – APPLICATION – COSTS – where appellant and first co-respondent by election sought costs – where costs concerned application filed on behalf of appellant seeking discharge of disclosure obligations by first co-respondent by election among other ancillary relief – where application for disclosure unnecessary in the circumstances – where first co-respondent by election acted inappropriately as commercial competitor – where each party to bear their own costs of the application 	
LEGISLATION:	Planning and Environment Court Act 2016 (Qld) s 60	
COUNSEL:	Ms S Hedge for the first co-respondent by election	
SOLICITORS:	Wilson Lawyers for the first co-respondent by election
Mr M Connor, solicitor with Connor O’Meara Solicitors for the appellant	

	Introduction
[1]	Both the appellant and the first co-respondent by election (Mr Luckie) seek their costs associated with an application filed on behalf of the appellant seeking that Mr Luckie “discharge his obligations of disclosure with respect to correspondence relating to traffic surveys commissioned in the course of the appeal.” Other ancillary relief was also sought.  I should note that it is only the appellant and Mr Luckie that are concerned with this application for costs.  
[2]	The reason underlying the filing of that application was certain conduct by Mr Luckie who is a commercial competitor of the appellant in the childcare industry.  One of the issues in dispute is concerned about the adequacy of car parking for the proposed childcare centre.  On 16 February 2021, the Court made orders directing that the parties nominate traffic engineers to obtain evidence of the likely car parking demand.  As a consequence, the traffic engineers met and produced a joint report which, among other things:
a)	Identified a range of locations of comparable childcare centres; and
b)	Identified appropriate survey parameters.
[3]	On or about 25 March 2021, the appellant’s solicitors became aware that Mr Luckie had been in contact with at least one of the operators of the potential childcare centres to be surveyed.  
[4]	No doubt as a consequence of the potential commercial competition between the appellant and Mr Luckie, the appellant’s solicitors were suspicious that he might have been attempting to in some way influence the participation in or outcomes of the proposed car parking surveys.  
[5]	On 25 March 2021, the appellant’s solicitors wrote to Mr Luckie’s solicitors and sought disclosure of “all communications passing between (Mr Luckie) and either Austraffic or any childcare centre operators which concern the traffic surveys being undertaken as a consequence of these proceedings.”  Disclosure of those documents was sought by 12.00pm on 26 March 2021.  
[6]	On 26 March 2021, solicitors for Mr Luckie responded as follows:
“(a)	All communications by (Mr Luckie) to either the childcare centre operators or Austraffic are part of the email trail which was attached to your letter.
(b)		After receiving a response from an operator of a childcare centre (Mr Luckie) then forwarded on the response he received from Bella Grace Early Learning Centre directly to Austraffic as it confirmed the owner’s permission to the survey.
(c)		It is clear by reason of (Mr Luckie) action in sending the email trail in full to Austraffic that our client’s intention was solely to assist in getting consent by the owners who had not agreed for the surveys to be carried out.” 
[7]	I have no evidence that would suggest Mr Luckie was in any inappropriate way attempting to influence either the participation of other childcare centres in the survey or the results of any survey carried out in respect of them.  That said, it was clearly inappropriate for Mr Luckie to do what he did. Indeed in this regard, the letter from his solicitors informed the appellant’s solicitors that Mr Luckie had been advised that he should not speak with any of the childcare centre operators, and, if they contacted him in relation to the surveys being undertaken, he should refer them to Austraffic.  
[8]	In the appellant’s written submissions, it is then asserted that the above response was inadequate having regard to the information that was actually sought.  Those deficiencies, at least insofar as the appellant was concerned, are set out in correspondence to Mr Luckie’s solicitors together with notice that an application would be filed to compel disclosure.  That correspondence was sent at 3.31pm on 26 March 2021.  I am inclined to agree that the initial response on behalf of Mr Luckie was inadequate.  
[9]	Before a response had been received, the appellant filed its application on 26 March 2021, made returnable on 29 March 2021.  After that application had been filed, at or about 7.46pm on Sunday 28 March 2021, Mr Luckie’s solicitors responded to the demand for disclosure.  That disclosure was sufficient for the purposes of the appellant, but of course, was received after the application had been filed and a hearing date determined.  
[10]	On behalf of Mr Luckie, and apparently accepted by the appellant, sufficient disclosure has now been made. However, Mr Luckie does not admit that disclosure “was obliged by law.”  The reasons relied on to say that disclosure was not required by law are set out in some detail in the written submissions filed on behalf of Mr Luckie together with the submissions filed in reply on his behalf.  
[11]	It is then submitted on behalf of Mr Luckie that:
“The co-respondent submits the Court would decline to order costs payable to the appellant given: 
(a)	the appellant’s solicitors acted unnecessarily hastily in bringing the application and incurring costs in the circumstances where:
(i)	disclosure was initially demanded by the appellant’s solicitors within one day;
(ii)	having not been satisfied by the co-respondent’s solicitors response on 26 March 2021, an application in pending proceedings was filed with supporting affidavit material on the same day;
(iii)	the co-respondent did not refuse in the letter of 26 March 2021 to provide the correspondence sought but said correspondence from Mr Luckie was included in the email trail provided by the appellant’s solicitors;
(iv)	the appellant did not comply with r 444 of the Uniform Civil Procedure Rules before making application for costs on the basis of non-compliance with the rules (an application contemplated under ch 10, pt 2 of the Rules) in that he did not send a letter about the relief sought with at least three business days for the co-respondent to respond;
(b)	the co-respondent provided all of the correspondence sought on 28 March 2021 within three days of the initial letter;
(c)	the review on 11 June 2021 was to take place in any event and so little extra cost should have been incurred.” (footnotes deleted, emphasis added).
[12]	In addition to resisting the costs orders sought by the appellant, it was submitted on behalf of Mr Luckie that the appellant should pay his costs of and incidental to the application on a standard basis, or as agreed.  In the reply submissions on behalf of Mr Luckie, it is asserted that the fact that he had not filed an application seeking costs to enliven the Court’s jurisdiction was not a bar to this Court making costs orders in his favour.  It is submitted that the dispute about the relief sought was sufficient to enliven the Court’s jurisdiction to order costs to either party as the Court saw fit.  I agree with that submission.  It was then submitted that the appellant should pay Mr Luckie’s costs pursuant to s 60(1)(i) of the Planning and Environment Court Act 2016 because:
“(a)		It acted prematurely in filing the application for disclosure as set out in the co-respondent’s original submissions, and above;
(b)		It did not comply with r 444 of the UCPR.  The appellant now says it applied under r 20 and r 60 of the Planning and Environment Court Rules.  Those Rules were not cited in the application in pending proceedings.  In any case, the co-respondent submits that r 444 of the UCPR applies with necessary changes by virtue of r 4 of the PECR;
(c)		The Court should not reward the appellant’s unnecessary use of litigant and Court resources.”
[13]	On balance, I consider it is unnecessary to consider and dispose of any of the technical arguments raised by either the appellant or Mr Luckie.  In short, Mr Luckie, as innocent as his actions and intentions might have been, behaved in an inappropriate way.  As much is conceded by his solicitors telling him that he should not behave in that manner in the future.  On balance I can also understand why the appellant’s solicitors would have been suspicious about Mr Luckie’s conduct and was justified in seeking a detailed explanation.  
[14]	That said, I was not taken to any material which suggested that it was necessary for the appellant to act with the degree of urgency that it did.  That is, I consider that it was unnecessary for the appellant to file its application on the same day that the correspondence was sent pointing out the deficiencies in the response and putting Mr Luckie on notice that an application in pending proceedings would be filed returnable on 29 March 2021, to compel full disclosure.  Had reasonable time been given, the application for disclosure would have been unnecessary as evidenced by the fact that material sufficient to satisfy the appellant’s concerns was received on the evening of Sunday 28 March 2021. 
[15]	There being no need for the application filed on 28 March 2021 to proceed, to the best of my recollection, the next Court appearance in this matter was a review to take place on 11 June 2021.  On that date, an order was made in respect of the appellant’s minor change application filed 4 June 2021.  Also on that date, Ms Hedge, who represented Mr Luckie, indicated that she was ready to deal with the question of costs.  On the other hand Mr Connor, representing the appellant, indicated that he would appreciate a little more time to prepare written submissions.  That was agreed to and certain directions were made.  It was also agreed that the matter should be dealt with on the papers.  
[16]	For the reasons given, while it was Mr Luckie’s inappropriate conduct that triggered the dispute about disclosure, I am also of the opinion that the appellant’s reaction was unnecessarily hasty.
[17]	On balance, for the reasons given, I consider the appropriate orders to be made are that each party to the application bear their own costs.
Order
1.	The appellant and the first co-respondent by election are to pay their own costs of the application.