Chief Executive, Department of Main Roads v Regan (No 2)

[2000] QLAC 76

IN THE LAND APPEAL COURT

OF QUEENSLAND
BRISBANE

In the matter of an appeal to the Land Appeal Court from a decision of the Land Court in the matter of the determination of compensation payable consequent upon the resumption by the Chief Executive, Department of Main Roads under the provisions of the Acquisition of Land Act 1967 and the Transport Planning and Coordination Act 1994 for (i) road purposes of an area of 97 m² being Lot 2 on Plan SP 102852 and (ii) for sale or otherwise being dealt with of an area of 720 m² being Lot 1 on Plan SP 102852, County of Davenport, Parish of Charters Towers.

(A98-24)

BETWEEN:

Chief Executive, Department of Main Roads

Appellant

v.

JG and LM Regan; Ross River Distributors Pty Ltd and

Tropic Distributors Pty Ltd

Respondent

BEFORE THE HONOURABLE JUSTICE CULLINANE, MR JJ TRICKETT

AND DR NG DIVETT

DECISION ON APPLICATION FOR COSTS - THE COURT

Delivered at Townsville this First day of December 2000

In this matter it is appropriate to consider the factual background to the appeal by Mr and Mrs Regan in respect of the resumption of lands owned by them at Charters Towers. In the Land Court the learned Member determined an amount of compensation in the sum of $370,000 plus disturbance items, made in favour of Mr and Mrs Regan. Following that decision the Chief Executive, Department of Main Roads, appealed the decision claiming that the learned Member had erred in rejecting matters of relocation of the business, and also in his analysis of the sales evidence. In the event, at the hearing the appellant did not pursue the claim in respect of the learned Member's analysis of the sales. On the evidence before it, this Court then dismissed the appeal with respect to the matter of the relocation of the business. Subsequent to that decision, Mr and Mrs Regan have now sought a decision in their favour in respect of costs associated with the appeal to this Court. The appellant argued that the current matter raises unique factual circumstances and legal issues, of which there are no relevant precedents directly on the point. However, the respondent submitted that the case as argued by the appellant was so obviously illogical, that it was improbable that an authority could be found for the proposition that it was incorrect. In the end the issues in the case were decided by the application of general principles. The power of this Court to award costs is found in Sections 34(1) and 72 of the Land Court Act 2000. Those provisions do not alter the powers which were previously conferred on this Court by s.44(16) of the Land Act 1962 and this Court continues to have an unfettered discretion as to the costs of and incidental to an appeal before it. The general rule is that costs ordinarily follow the event, unless there are special circumstances warranting departure from that general rule. We are conscious that there has been some flexibility in the application of the general rule against a dispossessed owner in compensation cases following the compulsory acquisition of land: (Moyses v. Townsville City Council (1979) 6 QLCR 271; Minister for the Environment v. Florence (1981) 45 LGRA 127; and Banno v. The Commonwealth of Australia (1993) 81 LGERA 34). However, those cases contain no support for departure from the general rule as against a resuming authority, where the rule would normally apply: (Barns v. Director- General, Department of Transport (1997) 18 QLCR 133 at 135-136).

Background: would justify departure from the general rule that costs should follow the event. In the current matter the lack of precedent precisely on point, does not, in our opinion, justify departing from the general rule.

Order: Court. Such costs are to be ascertained and fixed by the Registrar of the Supreme Court at Townsville according to the scale of costs prescribed by law for the time being in respect of the proceedings in the Supreme Court.

(Cullinane J)

JUSTICE OF THE SUPREME COURT

(JJ Trickett)

PRESIDENT OF THE LAND COURT

(NG Divett)
MEMBER OF THE LAND COURT