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Sir Terence O'Rort
2 June, 2009  
High on Hamilton Hill

Justice Berna Collier loses another round in the struggle to protect her heritage home from neighbouring redevelopment … Insensitive P & E findings … Costs fiasco … Sir Terence O’Rort reports on the latest twist in the saga of the pool side views

imageBrisvegas Federal Court adornment Justice Berna Collier and her hubby Alan have been stuck in the boggy terrain of the Parks & Gardens Court.

Al & Berna’s submitter appeal went nowhere.

Readers will recall Michael Rackemann DCJ’s insensitivity about the Colliers’ concern that if next door’s home extension was allowed to proceed then the neighbours would be able to get a gander at a federal judge and spouse disporting themselves in the pool at their Hamilton Hill pile.

See Berna’s poolside splash

Rackemann in his judgment explained to HH:

“It is not unusual for one house to be able to overlook the property of another, particularly in hillside locations. The Collier property is already overlooked by the Horne property. The existing house has a veranda and set of windows which look down over the pool area to the rear of the Collier property. The Collier property, in turn, overlooks a set of flats to its immediate north.”

The failure to appreciate the critical importance of shielding the Colliers from the neighbours’ prying eyes was shocking enough, but now Rackers has completely lost the plot by ordering them to pay the costs of the P&E proceedings.

See Collier and Collier v Brisbane City Council

Alan Collier swore the affidavits seeking to convince The Rack he should not order costs against the appellants.

The problem was that Berna and Al had run four grounds of objections and lost on all of them.

The other parties sought an order that the Colliers wear the costs of the whole show.

The general rule in the Planning and Environment Court is that each party bear their own costs in local authority appeals.

To attract a costs order requires something rather special.

imageLosing an appeal is not enough, but running a frivolous or vexatious appeal does enliven the discretion to award costs.

According to Rackemann he was only able to slot Berna (snap) and hubby for costs if their appeal was: “of little or no weight or importance … not worthy of serious notice … characterised by a lack of seriousness or sense … [or] annoying.”

One of Berna’s arguments was that the proposed development would diminish and detract from the heritage value of the old joint on the neighbour’s property, “Bermilla”.

Collier J and hubby retained the services of noted heritage architect Robert Riddel, who did a report on the revised residential development proposal.

But Riddel’s report was hardly music to the Colliers’ ears.

He concluded that so far as heritage issues were concerned the revised development proposal was “a better response to the heritage issues than earlier iterations and may be a reasonable outcome”.

imageHH and hubby then employed the “don’t mention the war” strategy and Riddel (seen here) didn’t participate in any joint expert reports or conferences and was not called by to give evidence at the appeal.

The Rack found that HH and hubby had chosen to notify and maintain the heritage issues that had no proper support and which Riddel, their own expert, had suggested were not well based.

He said he would award costs against the two Colliers but the form of the costs order has not yet been settled.

Given the way Rackemann trampled all over this rising star of the Federal Court God knows what actual costs orders will finally emerge.

Perhaps he should obtain guidance from Frippery Pty Ltd v Booth where the Federal Court of Australia said:

“While I note that as a general rule, the court will not award costs on an indemnity basis, the court will do so if the justice of the case requires or some special or unusual feature justifies the court departing from the usual course.

It is clear in my view that the claims of the applicants in these proceedings had no chance of success, in view of the known facts and the clearly established law.”

Just don’t ask which judge said that.

Sir Terence O’Rort reporting from Queensland