Fairfax v Department of Natural Resources and Mines
[2005] QLC 44
•26 August 2005
LAND COURT OF QUEENSLAND
CITATION: Fairfax v Department of Natural Resources and Mines [2005] QLC 0044 PARTIES: Timothy Vincent Fairfax
(appellant)v. Chief Executive, Department of Natural Resources and Mines
(respondent)FILE NO: AV2003/0225 DIVISION: Land Court of Queensland PROCEEDING: Applications for costs by the respondent against the appellant and the appellant's agent personally DELIVERED ON: 26 August 2005 DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER: Mr JJ Trickett, President ORDERS: 1. The respondent's application that the appellant pay the respondent's costs of and incidental to the appeal is dismissed.
2. The respondent's application that Mr Boyd pay the respondent's costs of and incidental to the appeal is dismissed.
3. The appellant pay the respondent's costs thrown away as a consequence of the adjournment on 1 June 2004, limited to $250.
CATCHWORDS: Practice and Procedure – Costs - Costs of valuation appeal – Court's traditional approach – Principle to be applied – Special cases – Land Court Act 2000, s.34; Valuation of Land Act 1944, s.90.
Costs – Costs against appellant only in special cases – Costs against unqualified agent - Principles to be applied – Costs thrown away as consequence of adjournment.
APPEARANCES: Mr AFM Boyd (Agent) for the appellant
Mr K Fisher, Crown Law, for the respondentBackground
On February 23 2005, I delivered a judgement dismissing the appeal by the appellant against the unimproved value of $2,100,000 applied to the appellant's land by the respondent under the provisions of s.37 of the Valuation of Land Act 1944 (the Valuation Act), as at 1 October 2002. The appellant had contended that at the relevant date the unimproved value of the land was $1,470,470. The respondent now seeks an order that the appellant, and/or the appellant's agent personally, pay its costs of that hearing, including reserved costs.
This matter and two other appeals against the valuations applied to lands held by Micasea Pty Ltd, a company of which the appellant is the principal, were set down for hearing in Rockhampton on 1 June 2004. By application dated 20 May 2004, Mr Boyd, as agent for the appellants, requested an urgent hearing of an application for an adjournment of all three matters. That application was resisted by the respondent. The Land Court (Dr Divett) refused the application and ordered that the parties bear their own costs of the application.
That application sought an adjournment of the three matters to enable the appellants to retain a valuer to give evidence for them at the hearings. In his application on behalf of the appellants, Mr Boyd said that he approached five different valuers to act for the appellants at the hearings, but none of them was able to do so.
At Rockhampton on 1 June 2004, following the completion of the hearings of the two appeals by Micasea Pty Ltd against the valuations of a property known as "Carlisle", the present matter was called on for hearing before Dr Divett. Mr Boyd, as agent for the appellant, made an application for an adjournment on the grounds that the valuation involved a considerable amount of money and there was a dispute about the appropriateness of the respondent's sales evidence and about the method of valuation adopted by the respondent. Mr Boyd's application was that in the circumstances, the appeal should be adjourned to a later sittings at Blackwater in August 2004, to enable the appellant to obtain the services of a valuer to give evidence for the appellant.
Counsel for the respondent, Mr K Fisher, opposed the adjournment, arguing that the matter could be dealt with immediately or the next day; the respondent's valuer was available and ready to give evidence and additional cost would be involved if the matter was adjourned until the August sittings.
After hearing argument, Dr Divett granted the adjournment, but ordered that within 14 days the appellant was to engage a valuer and notify the Court accordingly and that within a further 21 days, that valuer and the respondent's valuer confer and advise the Court whether settlement had been reached and if not, the matter was to proceed to hearing.
Although not contained in the order, it is clear from the transcript that the learned Member reserved the matter of costs of the adjournment.
However, Mr Boyd was unable to engage a valuer and when the matter came before me at Blackwater on 3 August 2004, Mr Boyd not only appeared as advocate for the appellant, but also gave evidence.
The appeal was dismissed for reasons contained in my judgement published on 23 February 2005. At the request of Mr Fisher, counsel for the respondent, leave was granted for the parties to make application for costs within 14 days. Accordingly, by way of a general application dated 7 March 2005, the respondent sought an order for costs of and incidental to the proceedings. The application was set down for hearing on 17 March 2005.
The grounds upon which the costs order was sought were to the effect that the appellant's agent had obtained an adjournment to give him further time to engage a valuer, but no valuer had been engaged by the appellant; the case had been argued without any expert evidence and was dismissed. In the circumstances, it was submitted that the respondent was entitled to be indemnified for all reasonable costs incurred in successfully resisting the appeal.
The application was to be heard on 17 March 2005. However, on 8 March 2005, Mr Boyd, as agent for the appellant, made an application for a directions conference by telephone prior to the hearing of the application. The grounds for Mr Boyd's application were that he had sought an adjournment of the case to allow further time for the appellant to engage a registered valuer because he was aware of the importance the Court placed upon expert evidence. Mr Boyd stated that he approached 12 private valuers, but all were unavailable; eventually a valuer accepted the work, but when his costs of attending the hearing were ascertained, the appellant deemed those charges totally uneconomical and the involvement of that valuer was terminated.
Mr Boyd went on to state that at the hearing on 3 August 2004, in addition to conducting the case for the appellant, "he was also compelled to give valuation evidence on behalf of the appellant", as he had been unable to secure the services of a private valuer.
Mr Boyd submitted that the usual practice of this Court in Valuation Act matters is to award costs against an appellant only in exceptional circumstances. He went on to submit there was nothing exceptional about this case. He also indicated that he could not be present at the hearing of the application on 17 March 2005.
Then on 11 March 2005, the Crown Solicitor, on behalf of the respondent, filed what was termed a "supplementary general application", also to be heard on 17 March 2005, seeking orders for costs not to be limited to an award against the appellant only, but against the appellant's agent, Mr Boyd, as he was responsible in whole or in part for the ongoing conduct of the case, which had little or no prospects of success.
The grounds upon which that order was sought were that courts have held that lawyers can be liable to indemnify successful parties where their actions have been proven to be less than professional; as Mr Boyd is an experienced Land Court advocate/agent who is well aware of Land Court practices and procedures, he is akin in type and character to a legal representative.
That application then provoked Mr Boyd to file a sworn declaration dated 14 March 2005, stating that he could not afford to retain counsel to appear on his behalf at the hearing on 17 March 2005 and relied upon the contents of his declaration.
In the declaration, Mr Boyd took exception to the grounds of the respondent's supplementary application that the case presented at Blackwater had "little or no prospects of success" and that he was "less than professional" in the matter. He also went on to allege that the respondent was seeking to deter landowners from appealing to the Land Court in the future because of the fear that costs would be awarded against an unsuccessful appellant.
In respect of the respondent's claim that the case had little or no prospects of success, Mr Boyd referred to various aspects of my decision dealing with all the issues in the case. He questioned why the Land Court would deal with those matters in some detail if, as the respondent claimed, there was little or no prospects of success. Furthermore, he pointed to various findings that there had been shortcomings in the respondent's case. He contended that it was not an exceptional case, just a normal valuation matter.
Mr Boyd submitted that both the applications of the respondent of 7 March 2005 and 11 March 2005 should be dismissed and that no costs be awarded in the matter.
At a telephone directions conference held on 16 March 2005, Mr Boyd indicated that he could not appear at the hearing of the respondent's applications on the following day, but would rely on the written submissions that he had already placed before the Court. Mr Fisher requested that the respondent's applications be treated as a joint application. He submitted that if the Court found that the appellant was not responsible for the totality of the proceedings, then some apportionment of an award of costs could be warranted.
In the circumstances, Mr Fisher did not press strongly for the hearing of the applications for costs to proceed on the following day. He also had already made extensive written submissions, including reference to authorities, in preparation for that hearing.
Following written communication that the appellant also was prepared to rely on the submissions made by Mr Boyd, I ordered that the applications for costs made by the respondent be determined on the written submissions already made.
The Arguments
Both Mr Boyd and Mr Fisher had made comprehensive written submissions which were received by the Court on 15 March 2005. In respect of his application for costs against the appellant, Mr Fisher set out the background to this matter, including details of correspondence between the respondent and Mr Boyd. The substance of his submission was that Mr Boyd knew, or should have known, that there was virtually no prospect of the appellant succeeding in the appeal, unless he retained the services of a registered valuer. Despite undertaking to employ a valuer for the hearings, Mr Boyd failed to do so in respect of the hearings of the Micasea appeals on 1 June 2004. At that time Mr Boyd sought the adjournment of the present matter so that he could obtain the services of a valuer, which resulted in the Court's orders as described above. At that time, the learned Member, Dr Divett, reserved the question of costs of the adjournment. Then on 6 July 2004, Mr Boyd advised that the appellant could not comply with the order relating to securing the services of a valuer.
Mr Fisher submitted that the various applications for adjournment by Mr Boyd to allow him to obtain the services of a valuer which have proved to be unsuccessful, together with his subsequent conduct of the case, again without success, amount to an abuse of process.
He submitted that this is a case deserving of an award of costs indemnifying the respondent for the costs of resisting this appeal. It was, he submitted, a case that falls within the parameters of the exception in Bowden's case (Bowden v The Valuer-General (1980) 7 QLCR 138, Land Appeal Court).
Mr Fisher relied on the findings of the Land Court and Land Appeal Court in various cases where costs were awarded. He also referred to the comments by the learned Member of the Land Court, Mr Wenck, somewhat critical of Mr Boyd, in appeals heard in western sittings in 2000 and 2002, in which Mr Boyd had been involved as agent for the appellants. Mr Fisher submitted that in those cases the learned Member had intimated that costs could be a factor in the future.
In summary, Mr Fisher submitted that the appellant should have withdrawn the present appeal when he knew that either no valuer was available, or he was not prepared to fund the engagement of the valuer; the appellant, through his agent Mr Boyd, had presumed upon the goodwill of the Court with repetitious interlocutory proceedings for no advantage in outcome. Following the Micasea cases, he argued, the outcome of the present appeal was reasonably foreseeable in the absence of a valuer.
Then in further submissions of the same date, Mr Fisher sought an order for costs against Mr Boyd personally, submitting that as a matter of principle, a person who acts in a responsible capacity as an advocate over a course of time should take responsibility for the conduct of litigation. He argued that Mr Boyd had a responsibility to conduct cases with a degree of integrity commensurate with his experience in Land Court matters over some 40 years; an agent with that level of skill and experience had obligations not only to his client, but also to the Court; that extends to advising his client about matters which have no, or substantially no, prospects of success.
Mr Fisher argued that a Court has jurisdiction to order costs against legal practitioners representing a party for unreasonably initiating or continuing proceedings which have no chance of success and with a disregard of any proper consideration of the prospect of success. He submitted that the continued prosecution of the present case without a valuer, the importance of which was said to be paramount in the application for adjournment in Rockhampton, is tantamount to an abuse of process.
Mr Fisher cited a number of authorities relating to circumstances in which courts have considered it to be appropriate to award costs against a third party. He submitted that circumstantial evidence in this case leads to an inference that the agent was the prime mover of the prosecution of the appeal to its final conclusion. He referred to the undertakings by Mr Boyd to secure a valuer and his statements before the Court that engaging a valuer was necessary to refute the valuation of the respondent. In that regard he referred to the decision of the Federal Court in Bosworth v Booth [2004] FCA 1623. In that case, Kiefel J referred to advice received from an unqualified person who appeared to be assuming the role of the applicant's legal adviser and mentioned that such matters were relevant to the question of whether or not costs would be ordered against a third party.
Mr Fisher submitted the respondent should not be disadvantaged in any way by the conduct of the proceedings by either the appellant or his agent, regardless of the level of advice given by the agent, or the instructions to proceed or otherwise. He suggested that if the Court determined that the agent contributed to the prosecution of the failed appeal, costs could be apportioned between the appellant and his agent.
In response, Mr Boyd rejected the contention that the appellant's case was hopeless, referring to my findings that there were shortcomings in the method of valuation adopted by the respondent's valuer, particularly the difficulties in making a direct comparison between smaller sales and the larger area of the subject lands. He submitted that this was a very important issue which, along with many others, confirmed the necessity for the Court to adjudicate on this matter.
With regard to the adjournment on 1 June 2004, Mr Boyd submitted that the request for an adjournment was to secure a valuer to prepare a case, taking into consideration all its complexities. He contended that the undertaking he gave to secure a valuer was fulfilled. Despite the difficulties he experienced in approaching 12 valuers, all of whom rejected his brief for various reasons, a valuer had been retained, but when the valuer's charges became known, it was regarded as uneconomical to engage that valuer. He submitted that the learned Member, Dr Divett, had seen merit in his submissions at the time.
Mr Boyd took exception to the contention by counsel for the respondent that his repeatedly invoking the Court's jurisdiction for allegedly questionable purposes, amounted to an abuse of process. He suggested that counsel for the respondent seemed to be obsessed with his being retained by landowners to act as their agent, a role which is completely different from that of an expert. He submitted that the respondent has the resources to retain experts, while landowners do not, because of the exorbitant charges of private valuers to appear in valuation contests before the Land Court. Mr Boyd took exception to any insinuation by counsel for the respondent that the appellant had approached the case in an arbitrary, frivolous or vexatious manner.
In summary, Mr Boyd submitted that the methodology used by the respondent's valuer was questionable, as was recognised by the Court and that was always going to be argued. He questioned why it was suggested that the appellant should have withdrawn the appeal, as it was vigorously contested over the course of a full day. He submitted that at all times he had followed correct procedures, some with success, some not. He questioned why the Land Court devoted so much of its decision to discussing all the issues of the case, if the outcome of the appeal was reasonably foreseeable. He submitted that his role as agent is completely different to that of a valuer; he studies sales in an area and establishes trends in the marketplace. That is not engaging in the activities of a valuer, he argued, but it is part of his work in becoming aware of all market activities in the various districts.
Furthermore, he submitted, this was not a case with little or no prospects of success; there were many issues in relation to the valuation; the Court queried the methodology adopted by the respondent's valuer and after presiding over a vigorously contested matter, finally found in favour of the respondent. He submitted that there was no abuse of process and it was wrong to suggest otherwise.
Furthermore, he rejected the insinuation by counsel for the respondent that it had been an ulterior purpose, abuse of process, or a serious dereliction of duty by the appellant or himself as agent. He also rejected the inference that he was the prime mover in the prosecution of the appeal, or that he had acted without instructions. He was, he said, in constant contact throughout the proceedings with the appellant's Pastoral Supervisor and had made every effort to secure the services of a private valuer in accordance with his undertakings to the Court and had done so, subject to the valuer's charges; counsel for the respondent was not privy to client/agent consultations and had obviously drawn incorrect inferences.
The Relevant Legislation
The general power of the Land Court to award costs is contained in s.34 of the Land Court Act 2000, which relevantly provides:
"(1) Subject to the provisions of this or another Act to the contrary, the Land Court may order costs for a proceeding in the court as it considers appropriate.
(2) If the court does not make an order under subsection (1), each party to the proceeding must bear the party's own costs for the proceeding."
However, this matter involves an appeal under the Valuation Act. Section 70 of that Act provides:
"(1) Where the value of land as finally determined upon an appeal against the valuation is the value stated by the owner in the owner's notice of appeal against the valuation, or is nearer to that value than the valuation appealed against, costs shall not be awarded against the owner.
(2) Otherwise costs shall not be awarded against the chief executive."
The Approach of the Land Court
In this case, as the respondent was successful, it is only the respondent who can be considered for an award of costs. However, as submitted by Mr Boyd, the traditional approach of this Court is not to award costs against either party to an appeal under the Valuation Act, except in special cases.
The rationale for that approach was explained by the Land Appeal Court in Bowden v The Valuer General (1980) 7 QLCR 138. After discussing the ordinary rule in the Supreme Court that costs follow the event, which principle has been extended to orders made by arbitrators, the Land Appeal Court went on to say that the approach of the Supreme Court to orders for costs cannot govern the approach of the Land Court or the Land Appeal Court to the exercise of the discretion, pointing out that those Courts derived their powers to award costs (at that time) from the Land Act 1962, and perform quite different functions from that performed by the Supreme Court. The Land Appeal Court then went on to say at page 146:
"Nor are considerations relevant to awards of costs in disputes determined by arbitrators necessarily relevant to awards of costs in proceedings between governmental instrumentalities and citizens.
We think, in dealing with questions of costs, that it is an important consideration that there be ease of access to the Land Court and the Land Appeal Court … Fear of an adverse order with respect to costs may deter citizens with just complaints from resorting to the Courts; that has in the past occurred, as will appear. It seems to us unjust to adopt a restrained attitude towards awarding costs against citizens without adopting an equally restrained attitude towards awarding costs against the Valuer-General. That is not to say that, in a proper case, the Land Court or the Land Appeal Court will not award costs against either a citizen or an authority subject to the provisions of the statute which governs the matter."
Then at page 147, the Land Appeal Court said:
"Easy access to the Land Court to air grievances and have valuations reviewed is, as we have already stressed, most desirable in revenue cases, and such access should be available without fear of costs being awarded to either party except in special cases."
After considering the facts and circumstances of that particular case, the Land Appeal Court concluded at page 149:
"We think it desirable in a case of the subject nature that the access to this Court be such that neither party should be apprehensive that it will be required to pay the other's costs."
The principle in Bowden's case has been approved and followed on numerous occasions, for example, Valuer-General v Queensland Club (1991) 13 QLCR 207. Dealing with applications for costs of appeals under of the Valuation Act, both the Land Court and the Land Appeal Court have adopted a restrained approach, emphasising the desirability of allowing landowners easy access to the Land Court to contest what they consider to be excessive valuations and that such access should be available without fear of costs being awarded to either party except in special cases.
However, it has been pointed out on a number of occasions that this is not to say that the Court will not, in a proper case, make an award of costs. In such a case, there would need to be sufficient reason for such an award and in exercising its discretion, the Court takes into account all the circumstances of that particular case. Circumstances in which a party might be awarded costs would include lateness of notice of withdrawal, or in jurisdiction matters, or where the Court is satisfied that proceedings are frivolous or vexatious, or where one party has acted in a capricious or arbitrary manner: see, for example, Collins Foods International (Properties) No 2 Pty Ltd v Department of Natural Resources (1996) 16 QLCR 651.
Conclusion
The present case was not such a special case. Each party was aware of the evidence proposed to be given by the other party prior to the commencement of the hearing. Prima facie there were aspects of the respondent's valuation which were unusual. The valuation under challenge was in respect of two grazing properties situated some distance apart, with a combined area of 10,421 hectares. However, the sales relied upon by the respondent were of single properties, much smaller in area, some of which were situated at a considerable distance from the subject lands. In addition, there were other issues.
In his report, Mr Boyd had isolated what he saw as weaknesses in the respondent's case. He suggested that the sale of a larger property known as "Deepwater" would be a more appropriate basis than the smaller sales. However, he was well aware that such issues could be fully explored only by a registered valuer. In the absence of valuation evidence to the contrary, all he could do at the hearing was raise these issues and then to challenge the respondent's valuer's explanations in cross-examination. However, as explained in the reasons for the decision delivered on 23 February 2005, Mr Boyd, by this process, was unable to persuade the Court that the respondent's valuation was incorrect.
There is no doubt that if the appellant had been able to engage the services of a valuer, those issues could have been taken much further. However, Mr Boyd explained why he was not able to engage a valuer to give evidence in this matter. But, in my view, that does not mean that in those circumstances the appellant must refrain from challenging the valuation. Clearly the evidence proposed to be given by the respondent's valuer raised a number of issues and the appellant was entitled to challenge that valuation.
Section 24 of the Land Court Act 2000, provides that a party to a proceeding in the Land Court may appear personally or by lawyer or agent. The appellant in this case chose to be represented by an agent. When circumstances prevented the appellant from relying on the expert evidence of a registered valuer, he elected to rely on what evidence could be given by Mr Boyd as an experienced layman. That made the appellant's task of challenging the respondent's valuation more difficult, but the fact that he has been unsuccessful does not render him liable for costs, unless the circumstances are "special".
I do not find this to be a "special" case. Therefore, in accordance with the longstanding practice of this Court, I am of the view that, despite the strong submissions by counsel for the respondent, costs of the appeal itself should not be awarded against the appellant.
The Application for Costs against Mr Boyd personally
As explained earlier, in supplementary submissions, counsel for the respondent argued that costs should be awarded against Mr Boyd personally and that the Court could, if considered appropriate, apportion costs between the appellant and Mr Boyd. Not unexpectedly, Mr Boyd opposed that application.
Mr Fisher's submissions contain extracts from decisions of the Land Court where Mr Boyd acted as agent for appellants on a number of occasions, providing affidavits rather than appearing or giving evidence. The learned Member, Mr Wenck, commented adversely upon that approach as "unsatisfactory" and "a hindrance to the Court in efficiently dealing with … a simple matter". However, I cannot take that into consideration in disposing of the present application. Mr Boyd did not adopt that approach in this matter. Therefore, I will deal with this application on the facts and circumstances of this case.
There have been several interlocutory applications and a considerable amount of correspondence in this case during Mr Boyd's agency. That is not unusual in the many cases in the Land Court where appellants have been represented by agents who are neither lawyers nor valuers. Representation by such an agent often results in delay through applications, adjournments and so forth; hearings are sometimes longer. The difficulties arising from representation by an unqualified agent were explained in the decision of the New South Wales Land and Environment Court (Lloyd J), in Broadwater Action Group Inc v Richmond Valley Council and Another (No. 2) (2003) 129 LGERA 401, where his Honour stated at page 414:
"The difficulty with representation by an unqualified agent is that such a person, unlike a lawyer, is unlikely to give objective and dispassionate advice to his principal or principals. I do not doubt the sincerity of the agent in the present case, who argued the matter at length and with rigour and thoroughness. The present case demonstrates, however, that it is not always appropriate for parties to be represented by unqualified agents. The shortcomings of doing so are explained by the Court of Appeal in Damjanovic v Maley (2002) 55 NSWLR 149. These shortcomings may be summarised as follows:
· Unqualified agents are not subject to any rules of the profession or disciplinary code;
· Unqualified agents, unlike barristers and solicitors, owe no duty to the court; there is a considerable importance for the administration of justice that those permitted to appear before the court owe a responsibility to it to ensure that the court is properly informed and not misled;
· Unqualified agents, unlike barristers and solicitors, owe no duty to their opponent;
· Unqualified agents are uninsured, thereby exposing their 'clients' to substantial losses as a result of the mishandling of their cases;
· Cases in which unqualified agents appear are invariably longer, thereby incurring additional court time and additional costs to the other parties who are often legally represented.
· Unqualified agents, unlike lawyers, are unlikely to be objective and removed from the emotions that generally arise in the heat of litigation … "
His Honour then went on to explain the rationale for allowing such representation and to suggest a solution.
"Time and again it has been said that denying representation to parties by unqualified agents amounts to limiting access to justice. However, any concern about limiting access to justice can be met by reserving the court's power to grant leave to appear in an appropriate case, as has been done in other jurisdictions."
Despite similar problems, there has been no suggestion of limiting an appellant's right to appear by an agent in this Court.
Mr Fisher submitted that there is authority under section 34(1) of the Land Court Act 2000, for this Court to make an award of costs against a third party. Many of the authorities quoted by Mr Fisher were in relation to costs being awarded against a solicitor. He submitted that because of Mr Boyd's knowledge and experience and the role which he has adopted in this case, he could be regarded as holding himself out as an advocate and that those authorities could apply to him. However, as Lloyd J pointed out in the Broadwater case, an unqualified agent has no responsibility to the Court, or to his opponent. Therefore, in my view, those authorities relating to solicitors are not relevant to the present case.
Mr Fisher also cited a number of authorities where costs have been awarded against a non-party who is not a lawyer. It is clear from these authorities that Courts have been reluctant to make such an award and this is evident from the remarks of various judges. For example, the following passages appear in the judgement of the Full Court of the Federal Court in Applicant NAGM of 2002 v Minister for Multicultural and Indigenous Affairs [2002] FCAFC 396:
"[61] … The circumstances in which it is appropriate to award costs against a third party are confined, but this is a question of discretion rather than jurisdiction: Knight v FP Special Assets Ltd (1992) 174 CLR 178, … "
"[62] There are certain categories of cases in which the jurisdiction to award costs against a non-party has been exercised …. One … is where the non-party is considered to be the 'real party' to the litigation, Knight v FP Special Assets Ltd, at 188, per Mason CJ and Deane J. Another is where the non-party is a legal representative of a party … in consequence of his or her conduct in the litigation …"
At paragraph [63], the Full Court held that the jurisdiction to award costs against non-parties is not limited to these categories. Then at paragraph [65], the Court considered that some general propositions should be borne in mind:
"[66] First, … the object of the jurisdiction is to reimburse to a party costs which that party has incurred by reason of the conduct of the non-party. The jurisdiction is not punitive or disciplinary …"
"[68] Secondly, an order for the payment of costs by a non-party is exceptional and any application for such an order should be treated with considerable caution: Symphony Group Plc v Hodgson [1994] QB 179, at 192, per Balcombe LJ, … "
"[69] Thirdly, the mere fact that a non-party has been actively involved in preparing and presenting a hopeless case will not, of itself, ordinarily justify a costs order against that person … something more than commencing or maintaining proceedings with little or no prospects of success was required for a costs order to be made against a practitioner … Something more must be added to the equation such as, for example, an ulterior purpose, abuse of process or a serious dereliction of duty." White Industries (Qld) Pty Ltd v Flower and Hart (1998) 156 ALR 169, per Goldberg J, at 231.
That list is by no means exhaustive.
In my view, an award of costs against Mr Boyd personally is not warranted in this case. It cannot be said that this was a hopeless or unmeritorious case. As mentioned earlier, there were several issues which prima facie indicated that the respondent's valuer may not have taken relevant matters fully into account, or that the valuation may be incorrect. However, in the absence of the evidence of a registered valuer, Mr Boyd was unsuccessful in challenging those aspects of the valuation.
If the respondent had considered that the case was hopeless or unwinnable, it was open to Mr Fisher to submit at the completion of Mr Boyd's evidence, that the respondent had no case to answer. He did not do so and joined issue, correctly in my view.
Mr Fisher submitted that circumstantial evidence in this case leads to an inference that the agent was the prime mover for the prosecution of the appeal to its final conclusion. However, there is no direct evidence of that. Indeed, there is evidence that Mr Boyd was receiving instructions from the appellant's Pastoral Supervisor. In my view, the fact that he pursued the issues in this case with vigour and determination, although sometimes misdirected, is not evidence that he was the prime mover for the prosecution of the appeal.
For these reasons, the application by the respondent for an award of costs against Mr Boyd personally should be dismissed.
Reserved Costs
In considering the reserved costs in this matter, there were two applications for adjournment which are relevant. The first was an application on 20 May 2004 heard by Dr Divett prior to the hearings in Rockhampton, seeking adjournment of the two Micasea cases and the present case. The basis for the adjournment was to enable the appellant to retain a registered valuer. At that time, the respondent expressed concern about the costs thrown away if the adjournment was granted.
On that occasion, Dr Divett refused the application and ordered that the costs of that application be borne by the parties.
The other matter concerned the application before Dr Divett at the completion of the Micasea cases in Rockhampton on 1 June 2004. Once again, the application was that the present case be adjourned to enable the appellant to retain a registered valuer to give expert evidence in this case, which Mr Boyd described as being more difficult than complex than the two Micasea cases. On that occasion, Dr Divett granted the adjournment, but reserved the matter of costs sought by the respondent.
The concern expressed by Mr Fisher on that occasion was that the respondent would be put to additional costs if the adjournment was granted. The respondent's valuer, Mr Craig, was available to give evidence that afternoon or the next day. If the adjournment was granted and the case was to be ultimately heard at Blackwater, there would be additional costs. When Dr Divett granted the adjournment, Mr Fisher applied for those costs thrown away. Dr Divett reserved the matter of costs.
The reason for granting the adjournment was to enable the appellant to obtain the services of a registered valuer. However, despite the length of time between the adjournment and the hearing of this matter, for the reasons explained by Mr Boyd, the appellant was not successful in doing so.
Under the circumstances, the appellant was on notice from the previous adjournment application of the respondent's concern about costs thrown away. Therefore, there seems to be no reason why the respondent should not recover at least some of the costs thrown away. The difficulty is to assess just what is appropriate in these circumstances. In doing so, I take into account that Mr Fisher and any instructing officer had to be at the later sittings for other cases. The valuer, Mr Craig, had been available in Rockhampton following the Micasea cases. Therefore, his valuation report had been prepared at that time and he was ready to give his evidence. It seems to me that the only additional cost would be in Mr Craig travelling to Blackwater from Rockhampton and his return on 3 August 2004. However, in assessing that cost, I obtained little assistance from the invoices provided with Mr Fisher's submissions.
Having regard to all these circumstances, I propose to make a nominal award of $250.
Orders
1.The respondent's application that the appellant pay the respondent's costs of and incidental to the appeal is dismissed.
2.The respondent's application that Mr Boyd pay the respondent's costs of and incidental to the appeal is dismissed.
3.The appellant pay the respondent's costs thrown away as a consequence of the adjournment of the matter on 1 June 2004, limited to the amount of $250.
J J TRICKETT
PRESIDENT OF THE LAND COURT
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