Fitzgerald v Chief Executive, Primary Industries Corporation

[1994] QLC 7

[1994] QLC 7

 

  LAND COURT

BRISBANE

31 MARCH, 1994

Re:     Appeal under Section 4.26 of
the Water Resources Act of 1969 (A93-50)

NW & AM Fitzgerald
  v.
  Chief Executive, Primary Industries Corporation

Re:  Application for Costs

Following delivery of the decision in the above matter, licensees (ND, EF, LC & LC Pfeffer) who were joint respondents in the matter, sought costs of and incidental to the hearing of the case.  Before considering the application, I should here say that the licensees of the waterworks licence (no. 51898) were made joint respondents pursuant to an application made to the Court on their behalf on the day of the hearing of the matter viz. 10 February, 1994.
Counsel for the appellants, the Fitzgeralds, took as an initial point in his submission that the Court has no jurisdiction to consider the application for costs since the Water Resources Act of 1989 does not expressly provide the Court with power to award costs. I shall deal with this submission now. Section 4.26 (subsections 1 & 4) of the Water Resources Act of 1989, in so far as they are relevant, provide -

Subsection (1) - "A person aggrieved by a decision of the Commissioner with respect to -

(a)  an application for -

(i)        a licence;
           .....................................
           may appeal therefrom to the Land Court."

Subsection (4) - "The Land Court must hear and determine an appeal and may confirm, vary or revoke the decision of the Commissioner the subject of the appeal. 

So far as they may be made applicable, the rules and practice of the Land Court apply to an appeal under this section and the court may, where it considers it necessary to do so in a particular case, give directions as to the procedure, practice and other matters and things with respect to the appeal.

..............................................."

The general powers of this Court are contained within the provisions of section 41 of the Land Act of 1962. Subsection (9) of section 41 provides -

"The Court may make such order as it thinks fit as to the costs of or incidental to any matter that it has jurisdiction to hear and determine including, without limiting the generality of this subsection, the costs of an adjournment or application made in a pending matter, allowances to witnesses attending for the purpose of giving evidence at the hearing and the costs of any survey of boundaries".

That this Court has power to award costs in appeals under the provisions of the Water Resources Act of 1989 is accordingly provided for in the legislation since section 41 of that act expressly provides that the Court has jurisdiction to hear and determine appeals such as the one the subject of this application.
           Now it is argued on behalf of the licensees, the Pfeffers, that in the circumstances of the case, the appellants were made aware well prior to the hearing that extensive studies had been carried out by officers of the Department of Primary Industries in respect of the expected behavioural patterns of flood waters in the Condamine River consequent upon the proposed construction of an earth ring tank which is authorised by Waterworks Licence No. 51898.  These studies resulted in a corporation finding that the construction of the ring tank would have no effect, or certainly no deleterious or increased effect on flooding on the appellants' property.  This has been dealt with at length in the decision.  It is further urged that the Court should make an award of costs in favour of the Pfeffers since the appellants were warned by way of a letter from their solicitors that, in the event of the appeal not being successful, then an application for costs in this Court would be pressed.
           Counsel for the appellants, the Fitzgeralds, in a contingency submission, urges the Court to make no award as to costs, since they had presented to the Court an argument genuinely held, and backed at least to some degree by professional (engineering) evidence.  It is further submitted on their behalf that the fact that the appellants failed does not mean that they were vexatious or frivolous in the conduct of their appeal.
Now the power vested in the Land Court is one of a discretionary nature - vide section 41(5) of the Land Act of 1962. My research does not disclose a case in an appeal against the decision of the Chief Executive, Department of Primary Industries, or against the decision of the Commissioner of Water Resources (as he was formerly known), where an award has been made for costs of an incidental to the hearing of an appeal of this nature. This is not to say that it is not open for the Court to make an award as to costs, particularly if the conduct of one of the parties is regarded as being frivolous or vexatious, but in this case I cannot hold this to be so. It was said by the Land Appeal Court in re Appeal by WH Bowden against the determination of the Valuer-General - Shire of Pine Rivers - (1980/1) 7 QLCR 138 at p.146 and p.147 that "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" and further "that 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".
Now while the quoted Land Appeal Court dictum arose from an appeal under the provisions of the Valuation of Land Act of 1944, I can see no provisions within the Water Resources Act of 1989 which would preclude it from consideration in appeals under the latter act.
There is another decision of the Land Appeal Court which perhaps has some application in this case. In re Claim for Compensation - Resumption for an easement for water supply purposes - RM Denning v. The Council of the City of Ipswich (1988-1989) 12 QLCR 171 p.179 - that Court commented, in respect of the matter of costs, because the respondent has obtained from the Court the benefit of a decision on the effect of subsection 32(12)(1)(b) the Court considers that justice will be best served if in the particular circumstances of the case, no order is made as to costs.
           In this case, it cannot be disputed that the successful application for the licensees to be joined as a respondent, at least gave them the opportunity to contribute, and they so did, along with the Chief Executive, to the successful outcome for them in the case, no doubt to their considerable benefit.
           Now I can see there is nothing special in this case which would take it outside my consideration of the dictum of the Land Appeal Court in re Bowden v. The Valuer-General (supra).  Notwithstanding the forceful argument by counsel for the joint respondents, the Pfeffers, I do not consider this to be an appropriate case in which to make an award of costs against the appellants, especially since they received very short notice that the Pfeffers would apply to be joined with the Chief Executive as a joint respondent.  In the result then, I make no order as to costs.

Member of the Land Court