Fay Marie Kelsall and Paul Anthony Kelsall and Eunice Ying Teng Kelsall v Brisbane City Council

[2011] QLC 1

LAND COURT OF QUEENSLAND

CITATION:

Fay Marie Kelsall and Paul Anthony Kelsall and Eunice Ying Teng Kelsall v Brisbane City Council [2011] QLC 0001

PARTIES:

Fay Marie Kelsall and Paul Anthony Kelsall and Eunice Ying Teng Kelsall
(Applicants)

v.

Brisbane City Council
(Respondent)

FILE NO:

AQL016-08

DIVISION:

Land Court of Queensland

PROCEEDINGS:

Application

DELIVERED ON:

9 February 2011

DELIVERED AT:

Brisbane

HEARD AT:

Brisbane

MEMBER:

His Honour, Mr WL Cochrane, Member

ORDERS:

1.   Application is dismissed.

2.   Applicants to pay Respondent’s costs assessed in accordance with the Uniform Civil Procedure Rules on the standard basis.

CATCHWORDS:

APPLICATIONS – STATUTORY POWERS – COSTS
Acquisition of Land Act 1967, s.23

APPEARANCES:

Mr PA Kelsall for the Applicants
Mr D Quayle of Counsel for the Respondent instructed by the Brisbane City Legal Practice

Background

1. On 27 January 2011 the Applicants represented by Mr Paul Anthony Kelsall filed a General Application in this Court said to be made pursuant to s.23(4) of the Acquisition of Land Act 1967.

2. Section 23(4) provides:

   “(4)Subject to subsections (5) and (6), any amount payable to a claimant under this section which is not paid within 90 days after the claimant applied for the payment shall be recoverable by the claimant as a debt due and unpaid to the claimant by the constructing authority.”

1. The relief which was identified in the Application is as follows:

   “Letter dated 23 November 2009 – Brisbane City Council deposit into the Land Court the amount of $10 Million for expenses that will be incurred due to the Brisbane City Council’s demand of this application (sic) (This will enable the Kelsall family to meet with those demands regarding legal expenses and experts’ meetings)

   The Land Court will make initial payments of engagements to experts of Kelsalls’ choices to comply with Mr W L Cochrane’s orders.

   Bennetts & Francis (Planners and Surveyors)  $500,000
   Harding Lawyers (Instructing Solicitors)  $100,000
   Paul Smith (Barrister)  $100,000
   Chesterton International – Allen Crawford (Valuer)
   (on the basis he would be part of the team)  $ 50,000
   Ian McNaughton (Architect)  $ 50,000
   Vincents Accountants John Thynne  $ 50,000
   Bill Jones Weldwell Engineering  $ 10,000

   Further experts to be engaged regarding Kelsalls’ all heads of claims.”

1. The application by Mr Kelsall was shown to me immediately after filing and I set it down for hearing on the following day because there was, in any event, a review of the whole matter set down on that day.

2. It was my view that, subject to any submissions which may have been made by the Brisbane City Council that it was, given its nature, a matter which could be quickly disposed of. 

3. When the matter came on for hearing on 28 January 2011, Mr Kelsall was unable to point me to any particular legislative provisions which gave the Court any power to direct another party to a proceeding to pay money into Court to effectively “sponsor” another party’s engagement of appropriate experts. That is to say he could not identify any statutory basis upon which I could make the orders he sought.

4. Accordingly, the Court had no option but to dismiss the application as one which was ill-founded and beyond the power of the Court. So much was told to Mr Kelsall in Court as the transcript will reflect.

5. By email on Monday 7 February 2011, Mr Kelsall wrote to Deputy Registrar of the Land Court saying, inter alia:

   “I feel that the Land Court member Mr W L Cochrane has shown error in his judgement and shown favour to the Brisbane City Council to my application that was heard on 28 January 2011. Could you please urgently send a copy of His Honour Mr W L Cochrane’s judgement regarding my application filed on 27 January 2011 and determined on 28 January 2011 so I can lodge a complaint with the Queensland Police Legal Services.”

1. Because the transcript of the proceedings on 28 January is not presently available for perusal by myself or any of the parties and recognising that reasons were given in Court identifying to Mr Kelsall that what he sought was beyond the power of the Court and because of Mr Kelsall’s inclination to apparently take the matter further, it seems appropriate to provide these short written reasons in addition to what is said in the transcript.

2. The Respondent, Brisbane City Council, notwithstanding notice of the application and less than 24 hours, was able to provide the Court with written submissions on Mr Kelsall’s application.

3. I adopt the propositions advanced by the Brisbane City Council as contained in paragraphs 11 to 14 of their submissions and set them out here in full because, it seems to me, that nothing more needs to be said about the application.

4. Those submissions were as follows:

   “11.The application asks the Court to order the respondent to pay ‘into [the Court]…’ the sum of $10M to be used by the claimants to meet expenses, broadly speaking, to be incurred by them in running their case.

   12.The legislation it relies on is section 23 of the Acquisition of Land Act 1967 (the Act) which deals with advances against compensation.

   13.The grounds on which the orders are sought is that in debate in the Council chamber as to the resuming of land for the North South Bypass Tunnel project, the Deputy Mayor said certain things: see page 4 of the documents exhibited to the general application.

   14.The application is misconceived and should be dismissed with costs because:

   (a)     fundamentally the things said by the Deputy Mayor in a debate in council cannot created in the claimants here any legal, statutory or equitable rights (assuming that it is an argument of that kind that the claimants seek to advance);

   (b)the source of power for the respondent to cause the resumption of the claimants land to occur and the coincident right of the claimants to claim compensation upon those resumptions, is the Act;

   (c)it is the statutory right found there, to compensation upon the resumptions, that the claimants seek to vindicate in this proceeding; and

   (d)in any event, and on a slightly different tack, as the claimants well know, an advance against compensation, in accordance with s. 23 of the Act has been made and, upon their refusal to accept it, has been paid into court; and

   (e)in these premises:

   (i)   the application itself, the orders sought, the legislation relied on and the grounds pointed to are all inconsistent and really, with respect, unintelligible;

   (ii)   but on any view of things, there would be no inclination in the Court to make orders of this kind, given how the claimants have prosecuted their claims to date, even if the Court had power to make the orders sought, which it does not.”

5. I agree with the submissions of the respondent, Brisbane City Council, that the application was ill conceived and beyond the power of the Court. If it was an application which had been filed by a qualified legal practitioner it would have been both frivolous as well as vexatious. Accordingly, having dismissed the application, in the orders made on 28 January 2011 I included a direction that:

   “The costs of today save for the costs of the application filed by Mr Kelsall on 27 January 2011 are reserved.  The respondent’s costs to that application of 27 January 2011 be paid by the applicants and to be assessed in accordance with the Uniform Civil Procedure Rules on the standard basis.”

HIS HONOUR, WL COCHRANE

MEMBER OF THE LAND COURT