Conroy v The Commissioner of Water Resources

[1992] QLC 36

[1992] QLC 36

 

 

LAND COURT,

BRISBANE.

11th September, 1992.

Re:     Appeal under Section 4.26 of the Water Resources
  Act of 1989 - A92-2

PA and CR Conroy

v.

Commissioner of Water Resources

APPLICATION FOR COSTS

Consequent upon the handing down of my decision in the above matter, Counsel of the appellants Conroy made application for costs, since the decision of the respondent Commissioner of Water Resources not to issue a waterworks license was revoked absolutely.  The application made for costs is only on the basis that the appellants were successful at the hearing, after having had a fairly long and protracted course with the Water Resources Commission to secure their license. 
           Counsel for the respondent Commissioner submits that this is a case where no order for costs should be made.  He points out that the decision to revoke the Commissioner's decision in the matter was a one off situation and asks that the Court exercises its powers of equity and good conscience and reject the application especially since the issue of the waterworks license by the Court already indemnifies the appellants with the privilege of a license. 
           The Court was referred to the judgment of a Court of Appeal (No. 25 of 1991) in re: Colin Wayne Bell v. David Robert Carter Ex Parte Colin Wayne Bell where it was held that a magistrate should have made an order for costs as part of his/her decision in the matter. However, it is pointed out that the question of an award of costs in that case was subject to the provisions of Section 159 of the Justices Act of 1886 which provides -

"The sum so allowed for costs shall in all cases be specified in the conviction or order of dismissal, of order striking out a complaint for want of prosecution"

There is no such provision in the Land Act and Counsel for the respondent points out that the Justices Act does not contain the equity and good conscience provisions contained within Section 41 (5) of the Land Act of 1962.
           The evidence in the case discloses that the value of the Conroy farm with an area of 188 hectares will benefit to an extent of $1,500/ha - or $282,000 as a result of the decision of the Court to direct that a waterworks license issue.  This I feel is sufficient indemnity and results in a considerable enhancement in the value of the farm and is the result of the applicants entering into litigation. 
           This Court does not normally make awards of costs in cases of this nature on the basis that if it did, there may be some reluctance on the part of applicants to come before the Court to test decisions made by the Commissioner of Water Resources which they consider are unfavourable to them. 
In the exercise of my discretion and in accordance with the provisions of Section 41 (9) of the Land Act, I make no order as to costs.

(C.H. Carter)     
  Member of the Land Court.