Anderson v Commissioner of Highways (No 2)

[2019] SASCFC 140

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

ANDERSON v COMMISSIONER OF HIGHWAYS (No 2)

[2019] SASCFC 140

Judgment of The Full Court

(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Stanley)

11 November 2019

PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - NATURE OF PROCEEDINGS - PUBLIC DUTY INVOLVED

Application for costs of an appeal to the Full Court of this Court.

This Court dismissed the appellant’s appeal from a judgment of a single judge of this Court. The issue on appeal was whether the entitlement to recover compensation by reason of the compulsory acquisition of land under the Land Acquisition Act 1969 (SA) (the Act) extended to an entitlement to compensation for personal injury. This Court upheld the judge’s judgment rejecting this proposition.

The Commissioner seeks an order that the appellant pay his costs of the appeal.  The appellant opposes this order. 

Held, per the Court:

1.  The Court makes no order as to the costs of the appeal.

Land Acquisition Act 1969 (SA) s 23C, s 36; Supreme Court Civil Rules 2006 (SA) r 263(1); Supreme Court Act 1935 (SA) s 40(1), s 50, s 62C, referred to.
Anderson v Commissioner of Highways [2019] SASCFC 119; Anderson v Commissioner of Highways (No. 3) [2018] SASC 166; Dillon v Gosford City Council (2011) 184 LGERA 179; CFMEU v CSBP Ltd (No. 2) [2012] FCAFC 64; Minister for the Environment v Florence (1979) 21 SASR 108; Banno v The Commonwealth of Australia (1993) 81 LGERA 34, considered.

ANDERSON v COMMISSIONER OF HIGHWAYS (No 2)
[2019] SASCFC 140

Full Court:  Kelly, Blue and Stanley JJ

THE COURT:

Introduction

1. This Court dismissed the appellant’s appeal from a judgment of Parker J.[1]  The issue on appeal was whether the entitlement to recover compensation by reason of the compulsory acquisition of land under the Land Acquisition Act 1969 (SA) (the Act) extended to an entitlement to compensation for personal injury. This Court upheld Parker J’s judgment rejecting this proposition.

   [1]Anderson v Commissioner of Highways [2019] SASCFC 119.

2. The Commissioner seeks an order that the appellant pay his costs of the appeal.  The appellant opposes this order. 

   The submissions

3. The Commissioner submits that, as a general rule, costs should follow the event.  In particular, he contends that the appellant should pay his costs as the appeal was from a comprehensive judgment of Parker J that rejected the appellant’s submission; before Parker J the appellant received the benefit of the Commissioner not pursuing an order for payment of costs in recognition of the special considerations applicable to proceedings under the Act;[2] the Commissioner put the appellant on notice, shortly after he instituted his appeal, that the Commissioner reserved the right to seek costs if the appeal was unsuccessful; the appellant was wholly unsuccessful; and the appeal was pursued not for any public interest purpose but to obtain compensation. 

   [2]Anderson v Commissioner of Highways (No. 3) [2018] SASC 166 at [19].

4. The appellant opposes an order for the costs of the appeal. He submits that proceedings under the Act fall into a special category having regard to the provisions of s 36 which relevantly provides:

   In any proceedings under this Act the Court may award such costs as it thinks proper … taking into consideration: 

   …

   (b)the extent to which, in the opinion of the Court, the proceedings have arisen from, or been affected by –

   (i)    unreasonable conduct on the part of the claimant or the Authority;

   …

5. The appellant submits that his conduct of the appeal was not unreasonable and raised an important point of statutory construction which had not previously been considered by an intermediate appellate court in Australia or another common law jurisdiction. 

   Consideration

6. The award of costs is discretionary.  As a general rule, costs follow the event.[3]  However, the Court may make any order in relation to costs it considers appropriate.[4]  The discretion is to be exercised judicially. 

   [3]    SCR 263(1).

   [4]    Supreme Court Act 1935 (SA) s 40(1).

7. Contrary to the appellant’s submissions, s 36 of the Act does not apply to the appeal. Section 36 applies in any proceeding under the Act, which is to be understood as a reference to proceedings under s 23C of the Act. The appeal to the Full Court was not a proceeding under the Act.[5] Section 36 of the Act applies to the “Court”. The “Court” is defined in the Act to mean the Land and Valuation Court. That Court is established by s 62C of the Supreme Court Act 1935 (SA) (the SC Act). The appeal was not heard by the Land and Valuation Court. The appeal invoked the appellate jurisdiction of the Supreme Court pursuant to s 50 of the SC Act.

   [5]    Dillon v Gosford City Council (2011) 184 LGERA 179 at [70]-[72] per Basten JA (with whom Macfarlan JA and Handley AJA agreed); CFMEU v CSBP Ltd (No. 2) [2012] FCAFC 64 at [8]-[9] per Keane CJ, Siopis and Rares JJ.

8. Nonetheless, we accept that this appeal raised a novel question, as far as we are aware, not previously decided by any intermediate appeal court in the common law world.  The appellant’s principal contention was not untenable.  He has not acted unreasonably.  While it is true that the appellant was seeking an award of compensation for the personal injury he alleges, the appeal still raised a question of public interest.  Further, we accept that compulsory land acquisition litigation has a character that distinguishes it from ordinary litigation.   A claimant, unlike the usual plaintiff, has no choice whether to make a claim.  The fact of compulsory acquisition gave him or her a claim to compensation which reasonably could not be expected to be renounced.[6]  The legislation does not require a claimant to take the Commissioner at his word as to the proper construction of the Act. 

   [6]    Minister for the Environment v Florence (1979) 21 SASR 108 at 134-135 per Wells J.

9. In our view the appellant should not, in these particular circumstances, be penalised in costs for accessing the Court in pursuit of his right of appeal.[7]  In the circumstances it is appropriate that the appellant not suffer an award of costs against him. 

   [7]    Banno v The Commonwealth of Australia (1993) 81 LGERA 34 at 53 per Wilcox J.

   Conclusion

10. The Court makes no order as to the costs of the appeal.