Chief Executive, Department of Main Roads v Murray Investments Pty Ltd (No 2)

[2001] QLAC 37

[2001] QLAC 37

 

IN THE LAND APPEAL COURT HELD AT BRISBANE

In the matter of an appeal from the decision of the Land Court - Claim for Compensation

Acquisition of Land Act 1967 (A99-56).

BETWEEN

Chief Executive, Department of Main Roads AND

Murray Investments Pty Ltd

Appellant

Respondent

BEFORE THE HONOURABLE JUSTICE MULLINS, MR RP SCOTT AND DR NG DIVETT

REASONS FOR JUDGMENT ON COSTS

Delivered at Brisbane this Fourteenth day of May 2001.

After delivery of the Reasons for Judgment in the appeal on 4 April 2001 and in accordance with directions given on that day about the making of any application in respect of costs of the appeal, the appellant applied in writing for an order for costs. Written submissions in support of the application were filed by the appellant on 12 April 2001. The appellant did not require an oral hearing on the application.

Written submissions opposing the appellant's application and submitting that no order as to costs should be made in respect of the appeal were filed by the respondent on 30 April 2001. No request was made by the respondent for an oral hearing.

The source of power of the Land Appeal Court to order costs in respect of an appeal is s.34(1) of the Land Court Act 2000, as applied to the Land Appeal Court by s.72 of that Act. The Court therefore may order costs as it considers appropriate. That is not a departure from the previous legislative regime which applied to the awarding of costs in the Land Appeal Court in Barns v. Director-General, Department of Transport (1998) 18 QLCR 133, 135-137.

Prima facie the appellant is entitled to its costs because the appeal has been successful.  The grounds of appeal could, however, be divided into two discrete areas.  The

2

appellant's success on the appeal was only in respect of grounds 1, 2 and 3.  The appellant had no success on grounds 4, 5 and 6.

The appellant now submits that the issues raised by grounds 4, 5 and 6 were not addressed in any significant detail in the written submissions of the parties and occupied only a short period of the hearing before the Court on the appeal. The respondent submits that grounds 4, 5 and 6 occupied a significant component of the written submissions of the appellant which necessitated an appropriate response from the respondent.

It was apparent that the pursuit of grounds 4, 5 and 6 had an effect on the conduct of the appeal. In the circumstances of this appeal, we consider that the process of determining the appropriate costs order should give recognition to the appellant's lack of success on grounds 4, 5 and 6. That is achieved by limiting the order for costs in favour of the appellant to two-thirds of its costs.

We therefore order that:

1. The respondent is to pay two-thirds of the appellant's costs of the appeal including the costs of this application.

2. The costs are to be decided by the appropriate assessing officer of the Supreme Court under the scale of costs prescribed by law for proceedings in the Supreme Court.

(DA Mullins)

JUSTICE OF THE SUPREME COURT

(RP Scott)

MEMBER OF THE LAND COURT

(NG Divett)

MEMBER OF THE LAND COURT