Gallo v Department of Environment and Resource Management (No. 2)
[2014] QLAC 11
•18 December 2014
LAND APPEAL COURT OF QUEENSLAND
CITATION: Gallo v Department of Environment and Resource Management (No. 2) [2014] QLAC 11 PARTIES: FILOMENA GALLO,
FRANCESCO RALPH GALLO, and
JOHN PETER GALLO
(appellants)v CHIEF EXECUTIVE, DEPARTMENT OF ENVIRONMENT AND RESOURCE MANAGEMENT
(respondent)FILE NO: Appeal No. LAC005-12
Land Court No. WAA021-07
ORIGINATING COURT: Land Court of Queensland PROCEEDING: Appeal DELIVERED ON: 18 December 2014 DELIVERED AT: Cairns HEARD ON: 29 April 2014 HEARD AT: Cairns THE COURT: Henry J
CAC MacDonald, President of the Land Court
MD Evans, Member of the Land CourtSeparate reasons for judgment of each member of the Court, Henry J and MacDonald P agreeing as to the orders made, Evans M dissenting.
ORDERS: 1. The respondent pay 85% of the appellants' costs of the appeal to the Land Appeal Court, to be assessed on the standard basis.
2. The respondent pay 70% of the appellants' costs of the appeal to the Land Court from and including 23 June 2008 on the indemnity basis.
CATCHWORDS: APPEAL – POWERS OF THE COURT – COSTS – appellants successful on appeal to the Land Appeal Court – application for costs of the appeal – where the proceeding below was decided under the Water Act 2000 – whether the Land Appeal Court’s power to order costs is derived from s 34 of the Land Court Act or s 882 of the Water Act 2000 – whether apportionment of costs is appropriate – whether costs should be awarded on the indemnity basis
JURISDICTION AND POWERS OF THE COURT – COSTS – application for costs of the proceeding below – whether the Land Appeal Court has jurisdiction and power to award such costs – where costs were not argued or determined in the Land Court – whether the issue should be remitted to the Land Court
PRACTICE AND PROCEURE – application to admit new evidence – Land Court Act 2000, s 56
Acts Interpretation Act 1954 (Qld) s 38
Barron Resource Operations Plan 2005
Civil Proceedings Act 2011 (Qld) s 7
Integrated Planning Act 1997
Judiciary Act 1903 (Cth) s 32
Land Court Act 2000 (Qld) s 34, s 56, s 55, s 57, s 64, s 72
Land Court Rules 2000 (Qld) r 4
Uniform Civil Procedure Rules 1999 (Qld) r 766
Water Act 2000 (Qld) s 877, s 882,AED Oil Ltd v Puffin FPSO Ltd [2010] VSCA 109
Amos v Monsour Legal Costs Pty Ltd [2008] I Qd R 304
Appellants v Council of The Law Society [2011] ACTSC 133
Australian Capital Holdings Pty Ltd v Mackay City Council [2008] QCA 170
Australian Health Insurance Association Ltd v Esso Australia Pty Ltd (1993) 116 ALR 253
Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559
Belela Pty Ltd v Menzies Excavation Pty Ltd [2005] 2 Qd R 1
Brisbane City Council v Mio Art Pty Ltd [2012] 2 Qd R 1
Calderbank v Calderbank [1976] Fam 93
CJD v VAJ (1998) 197 CLR 172
Colgate-Palmolive Co v Cussons (1993) 46 FCR 225
Chrismel Pty Ltd v Department of Natural Resources and Mines (2005) 26 QLCR 87
Commonwealth and the Central Wool Committee v Colonial Combing, Spinning and Weaving Co Ltd (1992) 31 CLR 421
Donald Crone & Associates v Bathurst City Council (1997) 130 LGERA 139
De Tournouer v Chief Executive, Department of Natural Resources and Water (2008) QLC 0151
De Tournouer v Chief Executive, Department of Environment and Resource Management [2011] 1 Qd R 200
Fraser Property Developments Pty Ltd v Sommerfeld (No 1) [2005] 2 Qd R 394
Gallo & Williams v Chief Executive, Department of Environment and Resource Management (2012) 33 QLCR 180
Gallo v Chief Executive, Department of Environment and Resource Management (2013) 34 QLCR 371
Hope v Brisbane City Council [2013] QCA 198
House v King (1936) 55 CLR 499
Kable v New South Wales (2013) 87 ALJR 737
Khatri v Price (1999) 95 FCR 287
Knight v Special Assts Ltd (1992) 174 CLR 1787
Lacey v Attorney-General (Qld) (2011) 242 CLR 573
Mansfield v Director of Public Prosecutions for Western Australia (2006) 226 CLR 487
Medical Board (SA) v N, JRP (2006) 93 SASR 546
Mentech Resources Pty Ltd v MCG Resources Pty Ltd (in liq) No 2) (2012) 33 QLCR 43
Mentink v Registrar of the Australian Register of Ships [2014] 1 Qd R 397
Mio Art Pty Ltd v Brisbane City Council (No 3) (2013) 34 QLCR 222 applied
Mudie v Gainriver Pty Ltd (No 2) [2003] 2 Qd R 271
O’Mara v Harris (1948) 77 CLR 490
Oshlack v Richmond River Council (1998) 193 CLR 72
Queensland Heritage Council v Corporation of the Sisters of Mercy of the Diocese of Townsville [2014] QCA 165
Smith v Champion No 1 [2009] ACTCA 7 distinguished
Smith v Champion No 2 [2009] ACTCA 15
Thorn v Worthing Skating Rink Company (1876) 6 Ch 415 (n)
Williams v Chief Executive, Department of Environment and Resource Management [2012] QLC 24
YMCA v Chief Executive, Department of Transport and Main Roads (No 2) (2012) 33 QLCR 26APPEARANCES: DP Morzone QC for the appellants
MD Hinson QC, with him G Sammon for the respondentSOLICITORS: p&e Law for the appellants
Crown Law for the respondent
HENRY J: The appellants succeeded in their appeal to this court from a decision of the Land Court.[1] It remains to determine costs.
[1] [2013] QLAC 6.
The Issues
The parties’ submissions as to costs give rise to the following issues:
1. In relation to the costs of this appeal:
(a) by what power and criteria may this court determine an order for costs in respect of the costs of this appeal (“power and criteria for awarding the costs of this appeal”); and
(b) what should that order be (“determination of costs of this appeal”)?
2. In relation to the costs of the proceeding below does this court have power:
(a) to award costs in respect of the costs of the proceeding below (“power to award costs of the proceeding below”) or
(b) to remit the application for costs back to the Land Court (“power to remit”).
A decision reserved in respect of an application to adduce further evidence must also be made.
Power and criteria for awarding the costs of this appeal
A litigant’s right of appeal from the Land Court to the Land Appeal Court derives from s 64 of the Land Court Act 2000 (Qld) which provides:
“64 Right of appeal to Land Appeal Court
A party to a proceeding in the Land Court may appeal to the Land Appeal Court against all or part of the decision of the Land Court.”
The jurisdiction and powers of the Land Appeal Court derive from Parts 3 and 4 (ss 53-76 inclusive) of the Land Court Act. The manner of the exercise of the Land Appeal Court’s jurisdiction is informed by s 55 of the Land Court Act which provides:
“55 Land Appeal Court to be guided by equity and good conscience
In the exercise of its jurisdiction, the Land Appeal Court—
(a) is not bound by the rules of evidence and may inform itself in the way it considers appropriate; and
(b) must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms or the practice of other courts.” (emphasis added)
The powers of the court are broad by reason of s 57, which relevantly provides:
“57 Powers of Land Appeal Court
The Land Appeal Court may do 1 or more of the following—
…
(c) make an order the Land Appeal Court considers appropriate.” (emphasis added)
It is unnecessary to determine whether s 57(c) is of itself sufficient to empower the court to order costs of an appeal before it as the court “considers appropriate”, for the court’s power to do so is either affirmed by or derives from the operation of s 72 and s 34 of the Land Court Act.
Section 72 provides:
“72 Application of certain provisions of pt 2 to Land Appeal Court
(1) Sections 8, 9, 21, 22 and 34 apply, with necessary changes, to the Land Appeal Court.
(2) For subsection (1), a reference in the applied sections to the Land Court is taken to be a reference to the Land Appeal Court.”
The sections listed in s 72(1) relate respectively to subpoenas, contempt, Rules of the Land Court, directions and costs. As to costs, s 34 provides:
“34 Costs
(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.” (emphasis added)
It was submitted that in this proceeding the operation of s 34 is subject to “another Act to the contrary”, namely s 882 of the Water Act 2000 (Qld). That Act is relevant because the appeal below related to the respondent’s decision-making under that Act.
The appellants were dissatisfied with the review of the respondent’s decision in respect of their application for a licence to take water to irrigate their property on the Atherton Tablelands. They appealed the internal review decision to the Land Court pursuant to s 877 of the Water Act.
Section 882 of the Water Act makes provision for the powers which the court hearing the appeal from the review decision may exercise, including a heavily confined power to award costs. Section 882 relevantly provides:
“882 Powers of court on appeal
(1) In deciding an appeal, the court may—
(a) confirm the review decision; or ...
(e) set aside the review decision and substitute it with a decision the court considers appropriate.
…
(3) Each party to the appeal must bear the party’s own costs for the appeal.
(4) However, the court may order costs for the appeal, including allowances to witnesses attending for giving evidence at the appeal, as it considers appropriate in the following circumstances—
…
(b) the court considers the appeal, or part of the appeal, to have been frivolous or vexatious;
…
(f) without limiting paragraph (d), a party has incurred costs because another party has introduced, or sought to introduce, new material;
(g) a party to the appeal does not properly discharge its responsibilities in the appeal. …” (emphasis added)
The appellants initially submitted the effect of s 34 of the Land Court Act is to limit the powers of this court to order costs to the confined costs powers of s 882 of the Water Act. The respondent’s outline accepted that submission. However when the issue fell for closer scrutiny each party accepted the submission had to be incorrect.
Section 72(2)’s deeming of a reference to the Land Court as being a reference to the Land Appeal Court only applies to the references in the sections of the Land Court Act listed in s 72(1). Thus the effect of s 34 is that subject to the provisions of the Land Court Act or another Act to the contrary, the Land Court and Land Appeal Court may each order costs as each court considers appropriate.
The terms of s 882 of the Water Act are plainly provisions in “another Act to the contrary”. However s 882’s terms are only “to the contrary” in respect of the court to which they apply. In s 882 “the court” referred to is the court hearing the appeal against the review decision. It was the Land Court, not the Land Appeal Court, which was deciding the appeal against the review decision below. Section 882 applied to the proceeding below in the Land Court but it has no application to an appeal from the Land Court to the Land Appeal Court. It is not a provision “to the contrary” within the meaning of s 34 of the Land Court Act insofar as this court’s power to award costs in this appeal is concerned.
It follows this court has power to order costs for the appeal in this court “as it considers appropriate”.
Determination of costs of this appeal
The appellants seek 100 per cent of their costs of this appeal to be assessed on the indemnity basis. The respondent, who does not seek costs, submits the respondent should only be ordered to pay 70 per cent of the appellants’ costs.
Determination of what, if any, award of costs is appropriate necessarily involves consideration of the facts that, on the one hand, the appellants were in the event successful on the appeal and, on the other, that they were not successful to the extent sought and argued by them.
In Mio Art Pty Ltd v Brisbane City Council (No 3)[2] this court identified consideration of the extent to which costs should follow the event or be apportioned by reference to degrees of success as a significant consideration in the exercise of the discretion in s 34(1). The court there referred to the principles discussed by Toohey J in Hughes v Western Australian Cricket Association Inc,[3] including his approval of the caution sounded in Cretazzo v Lombardi[4] against an expectation that apportionment reasoning ought be always or wholly determinative. That caution is reinforced by the requirement of s 55 of the Land Court Act that this court act according to the “substantial merits” of the case.
[2] (2013) 34 QLCR 222.
[3] (1986) ATRP 40-748.
[4] (1975) 13 SASR 4, 16.
In this case the appellants succeeded in the essential foundation for the appeal, which was that the learned member below erred in dismissing the appeal for want of evidence as to the appellants’ proposed water use practice. It thereafter remained for this court to determine the volume of water the appellants should be licenced to take per annum.
The respondent submits that on this issue the appellants did not succeed, for the volume determined by this court was substantially less than the volume contended for by the appellants. The respondent submits this should be reflected in an order the appellants only recover 70 per cent of their costs of the appeal.
The appellants should and would have received a determination of the appropriate volume for the licence in the hearing below but for error and the member’s failure to go on and determine the correct licence volume. Whether the appellants’ submissions below as to the appropriate volume were right or wrong, the appellants were wrongly deprived of a determination of that issue and compelled by the error to re-argue it. Had they received that determination below, as they should have, and, unsuccessfully appealed the quantum of that determination, then the respondent’s apportionment argument would be stronger.
Is it “appropriate” to only award a portion of the appellants’ costs of achieving a result in this court that they should have received below? It is not suggested the appellants rejected a reasonable offer of the respondent to settle the costs of the proceeding below so that the need for argument and determination of it might have been avoided. The argument would certainly have been somewhat less taxing had the appellants pursued a lesser allowance and conceded, as this court concluded, that the appellants’ other existing licence allocations should be taken into account. That is a relevant consideration in favour of at least some apportionment. However they were still topics the court needed to consider and determine.
The difference which a concession and submission for a lesser volume may have made to the imposte of the argument was not as significant as the result sought by the respondent suggests. I would take a more moderate approach, weighing the extent of that imposte in light of the argument being one that was a necessary incident of the appellants’ success on the appeal. It is appropriate in the circumstances to allow the appellants 85 per cent of their costs on the appeal.
The appellants submit costs should be on the indemnity basis but point to the respondent’s allegedly unreasonable conduct in the proceedings below to justify the submission. No conduct in this appeal has been identified as supporting an argument that costs in respect of this appeal should be on the indemnity basis. The respondent’s attempt to uphold the findings below was not of itself unreasonable. As already discussed, the appellants’ argument as to the quantum of the licence was not successful so it was hardly unreasonable of the respondent not to concede it in this appeal.
Costs should be on the standard basis.
I would order that the respondent pay 85 per cent of the appellants’ costs of the appeal to the Land Appeal Court, to be assessed on the standard basis.
Power to award costs of the proceeding below
The respondent submits this court has no power to make any order for costs in respect of the proceeding below or to remit the application.
At first blush those submissions, if correct, might be thought to deprive the appellant of a forum before which it can seek its costs below. However, as the respondent correctly submitted, in light of this court’s allowing of the appeal the appellants would now be entitled to make application to the Land Court for the appellants’ costs in the proceeding below, as long as they do so as soon as possible after the conclusion of this appeal.[5]
[5] Acts Interpretation Act 1954 (Qld) s 38.
The respondent submitted this court has no power to award costs of a proceeding in the Land Court except on an appeal against a costs decision of the Land Court. It is submitted that by the operation of s 34(2) of the Land Court Act there was no order below as to costs, from which it follows this was not on its terms or in substance an appeal against a costs decision.
In the notice of appeal, in the orders or relief sought, the appellants included an order that:
“The Respondent pay the Appellants’ costs of the appeal.”[6]
[6] Vol 6 p1357.
The appellants submit these at best ambiguous words ought to have been understood as referring to the costs of this appeal and of the appeal below. It is a common enough expectation amongst lawyers that an appellant seeking to reverse an outcome below may, if successful, also seek a consequential order as to costs below in light of that reversed outcome. The respondent was not surprised by the appellants’ desire for such an order. Having regard to s 55(b) of the Land Court Act, I would resolve the ambiguity or oversight in the Notice of Appeal in the appellants’ favour so that their appeal is regarded as including the application advanced by the appellants’ submissions for a costs order in their favour in respect of the appeal proceeding below.
A similar course was taken with some hesitation by this court in LGM Enterprises Pty Ltd v Brisbane City Council.[7]There the court went on to order costs in respect of the proceeding below, however, there costs had been argued and determined below. Here there was no such argument or determination. The respondent’s submission goes beyond the form of the appeal to its substance. The respondent emphasises this was an appeal on a decision which involved no determination at all as to costs below.
[7] (2008) 29 QLCR 176.
A potential answer to the respondent’s challenge lies in s 57 of the Land Court Act, quoted in part above. Its terms in full are:
“57 Powers of Land Appeal Court
The Land Appeal Court may do 1 or more of the following—
(a)suspend the operation of the decision and remit the matter, with or without directions, to the court or tribunal that made the decision to act according to law;
(b) affirm, amend, or revoke and substitute another order or decision for the order or decision appealed against;
(c) make an order the Land Appeal Court considers appropriate.”
Subsection (a), which confers a power to remit, only arises if the decision below is suspended. It is irrelevant for present purposes.
Subsection (b) empowers this court to revoke the order or decision appealed against and substitute it with another order or decision. It would be erroneous to regard that provision as only allowing the substitution of like with like and not allowing consequential orders. The words used do not suggest the substituting order must be limited to contradicting the order or decision it is substituting. That is unremarkable; the circumstances of each case vary. Success on appeal may provoke a need for categories of orders that were not warranted below because of the different result below.
The decision below was “the appeal is dismissed”. It would plainly have been ineffective in making orders in this case to solely pronounce, “the appeal is allowed”. That would be to say nothing of the further orders that should have been made below but for the error. It is noteworthy that in consequence of the appeal being allowed, this court, without complaint by the respondent, has already made other consequential orders and decisions. It ordered the respondent to grant a licence and decided the volumetric allowance for that licence. These are orders or decisions the learned member would have made or determined below but for his error. Put differently, they were then within the potential range of decisions or orders he could have made, rather than deciding as he did.
Had the outcome decided here been decided below, an inevitable consequence of that outcome is that the appellants would have sought a costs order in their favour, as they did in the matter which was run in tandem with this matter below, Williams v CEO Department of Environment and Resource Management (No 2).[8] However a distinction between that form of consequential order and orders such as those about the licence is that the decision-maker below was seized of the licence issues at the time of the decision under appeal. He was not yet seized of the issues relevant to costs.
[8] [2013] QLC 53.
If costs were sought in the jurisdiction below it would not have been a simple issue to resolve. For instance, if the appellants were to have pursued a costs order below it would have been necessary for them to first establish the presence of a circumstance listed in s 882 of the Water Act. Further argument and perhaps further evidence would have been needed. None of that had occurred below by the time of the decision. An order or decision as to the appellants’ costs did not fall within the range of order or decisions that potentially fell to be made by the member below at the time he arrived at the decision that was appealed against in this court and had that decision been free of error.
That shortcoming is not met by the provision in s 882(3) that in an appeal to the Land Court each party must bear the party’s own costs. That provision does not have the consequence that the decision below, dismissing the appeal, decided the costs. The position might arguably be different if s 882 provided that costs follow the event. Then the decision below, whether it was to dismiss or allow the appeal, might arguably be regarded as having been determinative of costs or determinative to such a substantial extent that an order as to costs was effectively consequential upon the decision. However s 882’s clear effect is that costs are not consequential upon such a decision. Such a decision is not to any substantial extent determinative of costs. This is made plain by s 882(4) which, read with s 882(3), has the effect that costs may only be ordered if one of the circumstances listed in s 882(4) is found to be present and, the court’s discretion to award costs being thus enlivened, the court concludes it is appropriate to award costs.
It follows an order as to the costs below was not a potential “substitute”, within the meaning of s 57(b), “for the order or decision appealed against”.
What then of s 57(c)’s provision for this court to make “an order…it considers appropriate”? On its terms the power conferred by s 57(c) is broad. It appears to be limited only by the requirement that the Land Appeal Court considers the order to be appropriate. However the question of what is “appropriate” inevitably falls to be considered by reference to the circumstances of the case before the Land Appeal Court. This heralds the point that, as with the rest of s 57, s 57(c) is a source of power, not of jurisdiction. The court’s jurisdiction to exercise the power conferred by s 57(c) is necessarily confined by the nature and extent of the decision under appeal before it. The decision under appeal in this case did not involve any error regarding the issue of costs below, such as a failure to have decided the issue. The issue of whether the court should order costs for the appeal pursuant to s 882(4) had not even been argued below at the time of the decision. As explained in [35-39] above, an order as to costs was not consequential upon the decision. Such an order did not fall within the jurisdictional range of potential determination of the decision under appeal before this court. The making of such an order therefore does not fall within this court’s jurisdiction to decide the appeal which is before it.
Since drafting these reasons my attention has been drawn to the Land Appeal Court’s decision in Ostroco v Department of Main Roads (No 3)[9], in which this court made an order as to costs below in circumstances where there had been no determination of costs below. The decision is of no present relevance in that it did not consider the jurisdictional limitations of the powers conferred by s 57. It does however help illustrate the present point. The court in Ostroco was applying a markedly different costs provision than s 882 Water Act, namely s 27 Acquisition of Land Act 1967 (Qld). The effect of s 27 is that if costs are awarded they shall be awarded to the claimant if the amount of compensation determined is nearer to the amount claimed than the amount of the valuation finally put in evidence by the constructing authority and otherwise shall be awarded to the constructing authority. While costs remain discretionary under s 27 it is clear the question of what if any order as to costs is made is to a substantial degree determined in consequence of the decision below as to the quantum of compensation. In contrast, s 882 contains no such consequential link between the outcome of the decision and an award of costs.
[9] [2014] QLAC 7.
The above discussed reasoning is also consistent with s 56 of the Land Court Act which provides:
“56 Evidence admissible on appeal
(1)An appeal in the Land Appeal Court must be decided on the evidence on the record of the proceeding in which the decision appealed against was made.
(2)However, the court may admit new evidence if—
(a)the court is satisfied admission of further evidence is necessary to avoid grave injustice; and
(b)the party applying to have further evidence admitted gives the court an adequate reason for the evidence not previously being given; and
(c)application to have further evidence admitted is made before the hearing of the appeal.” (emphasis added)
That provision is consistent with the Land Appeal Court’s jurisdiction to exercise its powers under s 57 being confined to the nature of the decision being appealed against. The premise of s 56 is that the record of the proceeding below should ordinarily be sufficient to determine the correctness of the decision below and, if there was error, to make orders and decisions correcting that error. The above reasoning is also consistent with s 56(2)’s limitation on the admission of new evidence to circumstances where its admission is “necessary to avoid grave injustice”. It is an exaggeration to characterise an inability to advance evidence about an issue as a grave injustice when evidence can still be advanced and a decision can still be made below on the issue.
In the course of argument the respondent contrasted s 57 with r 766 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”), a much broader provision conferring powers upon the Court of Appeal. It relevantly provides:
“766 General Powers
(1) The Court of Appeal-
(a)has all the powers and duties of the court that made the decision appealed from; and
(b)… may make any order the nature of the case requires; and
(c) may, on special grounds, receive further evidence as to questions of fact, either orally in court, by affidavit or in another way; …
(6)The Court of Appeal may exercise its powers under this rule even though-
(a) a notice of appeal has not been given for a particular part of the decision or by a particular party to the proceeding; or
(b) a ground for allowing the appeal or for affirming or varying the decision is not stated in the notice of appeal.”
The appellants referred to the Civil Proceedings Act 2011 (Qld), which applies to civil proceedings in the Supreme Court of which the Court of Appeal is a division. Section 7(1) of that provides:
“7 Concurrent administration of law and equity
(1)A court must exercise its jurisdiction in a proceeding to ensure, as far as possible, that-
(a) all matters in dispute between the parties are completely and finally decided; and
(b) multiplicity of legal proceedings is avoided.”
That provision has some similarity to s 32 of the Judiciary Act 1903 (Cth) which the High Court has regarded as allowing costs orders to be made by it in relation to the costs of proceedings below.[10] While s 7 informs the already broad powers conferred on the Court of Appeal by r 766, neither provision relates to the jurisdiction or power of this court.
[10]Edwards & Ors v Santos Ltd & Ors (2011) 242 CLR 421, 425, 444; Cf Kirk v Industrial Court (NSW) (2010) 239 CLR 531.
The appellants contended otherwise, relying upon r 4(1) of the Land Court Rules 2000 (Qld) which provides:
“4 Application of Uniform Civil Procedure Rules
(1)If these rules do not provide for a matter in relation to a proceeding in the court and the Uniform Civil Procedure Rules 1999 (the uniform rules) would provide for the matter, the uniform rules apply in relation to the matter with necessary changes.”
The court referred to in r 4 includes the Land Appeal Court.[11] The appellants submit r 4 has the effect that r 766 of the UCPR applies to the Land Appeal Court. Rule 766 is not of potentially general procedural application. It is specifically concerned with the Court of Appeal, as distinct from any other court. Its content is inconsistent with it providing, “with necessary changes”, “for a matter in relation to a proceeding” in the Land Appeal Court. It is not a provision to which r 4 of the Land Court Rules applies.
[11]Land Court Rules 2000 (Qld) r 3(3).
In Smith v Champion[12] the ACT Court of Appeal inferred from a provision conferring power to give any order the court “considers appropriate” that it had the power to make orders as to costs below. It is distinguishable from the present matter. There the issue of costs had actually been argued below and the trial judge died before making an order. More significantly though, the relevant provision was within s 370(1)(b) of the Supreme Court Act 1933 (ACT), a provision more akin in breadth of empowerment to r 766 of Queensland’s UCPR than s 57 of the Land Court Act.
[12][2009] ACTCA 7.
A provision which is at first blush against the respondent is s 55(b) of the Land Court Act, quoted in full above. It provides that in the “exercise of its jurisdiction” this court “must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities”. Language calling for legal technicality to be disregarded certainly echoes the pragmatic appeal of this court considering and making a decision about the issue of costs below. Even the respondent concedes this court has sufficient information before it to make an informed decision on that issue. However, the operation of s 55 is limited by its opening words to the court’s conduct “[i]n the exercise of its jurisdiction”. Section 55 has the consequence when read with s 57(c), that if this court had jurisdiction in respect of the issue of costs below it could readily determine it according to the substantial merits and without regard to legal technicality. However, as already explained, the nature of the decision under appeal has the consequence that the court does not have jurisdiction to deal with that issue.
The upshot is that this court should not determine the issue of costs below.
Reserved decision on application to admit further evidence
In the course of argument, this court reserved its decision on an application by the appellants seeking leave to admit further evidence pursuant to s 56 of the Land Court Act. The further evidence was said to be relevant to the costs of the appeal below and the costs of the appeal to the Land Appeal Court.[13]
[13] T1-4 L15.
Insofar as the application related to the costs of the appeal to the Land Appeal Court it is unnecessary to decide whether s 56 applies to it for I would in any event dismiss it because the evidence was irrelevant. The further evidence was about events preceding the hearing below. It was not evidence of a kind which could show the respondent’s attempt in this appeal to uphold the findings below was unreasonable.
Insofar as the application related to the costs of the appeal below I would dismiss it both because my decision as to jurisdiction renders the evidence irrelevant in this court and because the application did not comply with s 56.
As to the latter, the terms of s 56 are mandatory to the extent that they relate to the deciding of “an appeal in the Land Appeal Court”. As earlier explained, if this court had jurisdiction to determine costs below, that jurisdiction could only derive from its jurisdiction to decide the appeal. The deciding of the appeal is a decision to which s 56 applies. It follows that even if it was determined this court has jurisdiction to determine costs below, compliance with s 56 to adduce new evidence relevant to costs below was mandatory. It was not complied with. The application was not made before the hearing of the appeal as s 56(2)(c) requires.[14] Nor was the admission of the evidence necessary to avoid grave injustice as s 56(2)(a) requires. There was no potential grave injustice because, as already mentioned, the issue of costs below is an issue about which evidence can still be advanced and a decision can still be made below.
[14]It was filed after the hearing and determination of the main issue in the appeal ((2013) 34 QLCR 371) but before the hearing of the argument as to costs.
Power to Remit
The final issue to determine is whether this court can and should remit the appellants’ application in this court for costs in respect of the proceedings below back to the Land Court.
It is appropriate to do so if it can. There are obvious pragmatic benefits for the parties and the court below if the application is treated as already on foot and directions given to facilitate its prompt disposition below rather than it having to be initiated anew. Those benefits include timeliness, reduced expense and administrative convenience. Such a course would also overcome the potential for administrative obstacles below because of erroneous concerns, despite these reasons, that the court may be functus officio as regards a freshly instituted application in the proceeding.
The power to remit in s 57(a) is inapplicable for reasons already discussed. Section 57(b) is irrelevant. Does s 57(c) confer a power to remit?
Section 57(c) empowers this court to make orders which are appropriate in the circumstances of a particular case. It is a broad power, informed by s 55’s requirement that this court act without regard to legal technicality.
The jurisdictional reasoning discussed above suggests on one view that the broad terms of s 57(c) cannot provide this court with jurisdiction to remit a feature of the proceeding below over which it has no jurisdiction and was not properly before it in the appeal. The contrary view is that there is a distinction between this court wrongly exercising power under s 57(c) to determine an application beyond jurisdiction and it exercising power under s 57(c) to remit the application in consequence of deciding it should not determine it.
The latter exercise of power is administrative in character. It involves no actual determination of an issue. To the extent it may technically be characterised as an exercise of jurisdiction, that exercise is merely to move an application the court does not have jurisdiction to hear back before the court from which the appeal came and which does have jurisdiction to hear it. That such a technical characterisation might prevent a facilitative administrative order is surely the sort of legal technicality s 55 is directed at overcoming.
It is appropriate to remit the application for costs in respect of the proceeding in the Land Court to the Land Court to be determined according to law.
Achieving a majority decision
In concluding that this court does not have the jurisdiction to make an order in respect of costs below and should remit the matter I am in the minority. The majority of this court in this matter has determined we have jurisdiction and that an order should be made as to costs below.
Unfortunately the members of the majority propose different orders in that regard. It is desirable that this court reach a majority conclusion as to the order relating to costs below. To that end, accepting as I should the majority decision that this court does have jurisdiction to make an order as to costs below, I agree with the proposed order of the President as to costs below. I do so for the reasons identified by the President, which are in turn an adoption of my reasons in the related case of Williams v Department of Environment and Resource Management,[15] where the factual issues as to the present point were effectively identical.
[15] [2014] QLAC 10.
Orders
I would accordingly order:
1. Application to admit further evidence dismissed.
2. The respondent pay 85 per cent of the appellants’ costs of the appeal to the Land Appeal Court, to be assessed on the standard basis.
3. The respondent pay 70 per cent of the appellants’ costs of the appeal to the Land Court from and including 23 June 2008 on the indemnity basis.
MacDONALD P: The appellants succeeded in their appeal to this Court against a decision of the Land Court concerning the volume of water licensed to be taken, under the Water Act 2000, for the purposes of irrigating their property. They have applied for costs of the appeal to this Court and costs of the proceedings below. The orders sought were:
(a) The respondent pay the appellants' costs of and incidental to the proceeding (including any reserved costs) to be agreed, or failing agreement to be assessed under the Uniform Civil Procedure Rules 1999 on the indemnity basis.
(b) The respondent pay the appellants' costs of and incidental to the proceeding (including any reserved costs) to be agreed, or failing agreement to be assessed under the Uniform Civil Procedure Rules on the standard basis under the Scale of Costs prescribed by law for proceedings in the Supreme Court.
I have had the advantage of reading in draft the reasons of Henry J and Member Evans in this matter and I adopt gratefully the statement of facts and issues by Henry J and Member Evans.
Costs of the appeal to the Land Appeal Court
I agree with the reasons and conclusions of Henry J that the appellants should be awarded 85% of their costs of the appeal to the Land Appeal Court, to be assessed on the standard basis. I also agree with the order proposed by Henry J in this regard.
Costs of the Land Court proceedings
The appellants have sought an order, in their costs submissions to this Court, that the respondent pay the appellants' costs of the proceedings in the Land Court. Following the decision of the Land Court, there was no application to the Land Court by either party for the costs of the proceeding below, and consequently there is no decision by the Land Court on that issue.
The first question to be considered is whether the application for the costs of the Land Court proceedings has been properly raised by the appellants in this Court. The orders sought by the appellants in their notice of appeal to this Court included an order that:
"The Respondent pay the Appellants' costs of the appeal."
The appellants have submitted that these words should be construed as referring to the costs of the proceedings below as well as the costs of the appeal to this Court.
I am doubtful whether those words are sufficiently ambiguous to be construed to include a reference to the costs of the Land Court proceedings. As there was no costs decision of the Land Court there could be no appeal to this Court on that issue. In those circumstances, I consider that the reference to the "Appellants' costs of the appeal" should be construed as referring to the subject matter of the notice of appeal, namely the costs of the appeal to this Court.
The appellants' submissions applying for costs of the Land Court proceedings were originally filed in this Court on 20 December 2013. The application was repeated in the submissions filed on 7 February 2014. The respondent had the opportunity to respond to the application, which was done by written submissions filed on 4 March 2014, and to present oral submissions at the hearing before this Court. Although the application for costs was not made in the required form (LAC Form 7 - General Application), I agree with Henry J that the respondent was not taken by surprise when the appellants, having succeeded in their appeal to this Court, submitted that they should be paid their costs of the proceedings below. Nor was it surprising that the appellants did not apply to the Land Court for the costs of the proceedings below, following their lack of success in those proceedings. In circumstances where the respondents were not taken by surprise and relying on s 55(b) of the Land Court Act 2000[16], I consider that the submissions applying for costs filed in this appeal are sufficient to raise the issue of the costs below, in this Court.
[16] Section 55(b) of the Land Court Act 2000 provides that
"55 Land Appeal Court to be guided by equity and good conscience
In the exercise of its jurisdiction, the Land Appeal Court -
(a) is not bound by the rules of evidence and may inform itself in the way it considers appropriate; and
(b) must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms or the practice of other courts."
The respondent submitted, however, that this Court has no power to award costs of the proceedings below in the absence of an appeal against a costs decision of the Land Court. Although there is some force in that submission, I have come to the conclusion that this Court does have jurisdiction and power to deal with the application for costs of the Land Court proceedings.
Where there is no other statute applicable, the Land Court's jurisdiction and power to award costs is found in s 34 of the Land Court Act 2000, which provides that:
"34. Costs
(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."
In the present case, s 34 was ousted by s 882 of the Water Act, being "another Act to the contrary", so that, had there been an application to the Land Court for the costs of the Land Court proceedings, s 882 would have prevailed over s 34. Section 882 relevantly provides:
"882 Powers of court on appeal
(1) In deciding an appeal, the court may -
(a) confirm the review decision; or
(b) set aside the review decision; or
(c) amend the review decision in the way the court considers appropriate; or
(d)send the matter back to the reviewer and give the directions the court considers appropriate; or
(e)set aside the review decision and substitute it with a decision the court considers appropriate.
…
(3) Each party to the appeal must bear the party’s own costs for the appeal.
(4) However, the court may order costs for the appeal, including allowances to witnesses attending for giving evidence at the appeal, as it considers appropriate in the following circumstances -
…(b)the court considers the appeal, or part of the appeal, to have been frivolous or vexatious;
…
(f)without limiting paragraph (d), a party has incurred costs because another party has introduced, or sought to introduce, new material;
(g)a party to the appeal does not properly discharge its responsibilities in the appeal."
While the Land Court's ability to award the costs of the proceeding below was limited by the terms of s 882, s 882(4) does give that Court jurisdiction and power to award costs in the circumstances specified in the subparagraphs. Thus it was open to either of the parties to have applied for costs to the Land Court, following the Land Court decision.
The Land Court's jurisdiction to award or not award costs in this matter was granted by s 882, but that is not an independent grant of jurisdiction. The Land Court's jurisdiction to award costs in a proceeding arises consequentially from its jurisdiction to deal with the matter before it. A necessary pre-condition for the exercise of that jurisdiction was the existence of the substantive proceedings in the Land Court concerning the water licence.
I turn now to a consideration of the Land Appeal Court's jurisdiction and power to award costs of the Land Court proceedings in a case such as the present where there was no application to the Land Court for costs, and no decision of the Land Court about the costs of the Land Court proceedings.
Section 54 of the Land Court Act provides:
"Jurisdiction of Land Appeal Court
The Land Appeal Court has the jurisdiction given to it under this Act or another Act."
Section 57 provides:
"Powers of the Land Appeal Court
The Land Appeal Court may do 1 or more of the following -
(a)suspend the operation of the decision and remit the matter, with or without directions, to the court or tribunal that made the decision to act according to law;
(b)affirm, amend, or revoke and substitute another order or decision appealed against;
(c)make an order the Land Appeal Court considers appropriate."
Section 64 provides:
"Right of appeal to the Land Appeal Court
A party to a proceeding in the Land Court may appeal to the Land Appeal Court against all or part of the decision of the Land Court."
In accordance with s 54, the Land Appeal Court has jurisdiction given to it under an Act. Relevantly, s 64 provides that a party to a proceeding in the Land Court may appeal to the Land Appeal Court against all or part of the decision of the Land Court. In this case an application for the costs of the Land Court proceedings has been made to this Court. The Land Appeal Court's jurisdiction to deal with that is not found in s 64 as the application is not an appeal against a decision of the Land Court. Nor is there an express grant of jurisdiction to the Land Appeal Court to deal with this application to be found in any other provision of the Land Court Act. However, in my opinion, a grant of such jurisdiction may be implied from the jurisdiction and powers expressly granted to the Land Appeal Court in ss 54, 67 and 64 of the Land Court Act. In Australian Health Insurance Association Ltd v Esso Australia Pty Ltd[17] Black CJ said:
"There is a distinction between the conferral of jurisdiction and the grant of a power. Jurisdiction in this context means the authority a court has to decide a matter and power goes to the exercise of that authority. Without authority there can be no valid exercise of power …
It is of great importance that when the parliament intends to confer jurisdiction on a court it should make its intention plain and an express referral to jurisdiction in the familiar terms employed in s 82ZM has this effect. But desirable though such an unmistakable conferral of jurisdiction is, it cannot be the only way in which parliament can express its intention that a court should have authority to decide a particular class of matter. The question is one of construction."
[17] (1993) 116 ALR 253 at 263, 264.
There is no doubt that the Land Appeal Court had jurisdiction to deal with the substantive appeal about the water licence, under s 64 of the Land Court Act. Pursuant to s 57(b) of the Land Court Act, this Court substituted another decision and order for the decision and order of the Land Court about the water licence. In the same way as the Land Court had jurisdiction under s 882 of the Water Act to deal with the costs in the Land Court arising consequentially from its jurisdiction to deal with the water licence appeal, I consider that this Court has jurisdiction to deal with the costs of those Land Court proceedings in accordance with s 882. That jurisdiction arises consequentially from the Land Appeal Court's jurisdiction to deal with the appeal and its power to substitute another order about the water licence granted under s 57(b). Although not expressly stated in the Land Court Act, it seems to me that it is a necessary implication of the grant of jurisdiction to the Land Appeal Court to deal with the appeal, that this Court has also been granted jurisdiction to deal with the Land Court costs issues that arise from this Court's decision on the substantive appeal. The power to make such a costs order is granted explicitly by s 57(c) which gives the Land Appeal Court power to make an order that the Land Appeal Court considers appropriate.
My conclusion that the Land Appeal Court has jurisdiction to deal with the application for the costs of the Land Court proceedings in circumstances such as the present does not mean that the Land Appeal Court must deal with such an application. While it is desirable that a Court should wherever possible, deal with all the matters in issue between the parties, I consider that the Land Appeal Court may remit such an application to the Land Court for determination in appropriate cases. For example, if it is necessary for the proper determination of costs for further evidence to be adduced it may be appropriate to remit the costs issues to the Land Court for determination. Similarly, since the award of costs is a discretionary matter, there may be cases where the Land Court Member who conducted the hearing is in a better position than the Land Appeal Court to decide a costs application made in respect of those proceedings. In this case, I consider that this Court is in as good a position as the Land Court to determine the costs of the proceedings below as this Court is seized of the appeal in Williams v Chief Executive, Department of Environment and Resource Management, which is an appeal against the costs decision of the Land Court in proceedings which were heard in conjunction with the Gallo appeal in the Land Court. Further, the respondent has conceded that the Land Appeal Court is in as good a position as the Land Court to determine the costs of the Land Court proceedings[18]. This Court should determine those costs.
[18] T 1-48 ll 11-37 (29 April 2014).
I would also add that I do not consider that the fact that there was no application to the Land Court for costs, following the substantive decision by the Land Court, would have precluded the appellants from applying to the Land Court for costs after the Land Appeal Court decision about the water licence. It was only after that decision had been handed down, and possibly after the expiry of any appeal period, that the appellants' rights were clarified and any right to claim costs accrued. I consider that, in those circumstances, it was open to the appellants to have applied to the Land Court for costs as soon as possible after those decisions.[19]
[19] Section 38(4), Acts Interpretation Act 1954.
Application for leave to adduce new evidence
Prior to the costs hearing before this Court, the appellants filed an application pursuant to s 56 of the Land Court Act, seeking leave to admit new evidence. The application was supported by an affidavit of LA Manning affirmed on 27 February 2014. The appellants submitted that the new evidence was relevant to the costs of the appeal proceedings in this Court and also to the costs of the proceedings below. This Court reserved its decision on the application.
The appellants identified 8 documents as the subject of the application:
1.Question on Notice 1337 dated 28 September 2005.
2.Question on Notice 1456 dated 28 November 2006.
3.Letter p&e Law to Gilbert and Sutherland dated 20 February 2009 (together with Report on Crop Irrigation Demands Barron Water Resource Plan Area Sub-Catchment Area C)
4.Memos S Dempster to L Henrichsen dated 4 April 2005 and 6 June 2005.
5.Submission to Water Advisory Group.
6.Letter Crown Law to p&e Law 4 September 2008.
7.Letter p&e Law to Crown Law 5 September 2008.
8.Letter Crown Law to p&e Law 26 September 2009.
Section 56 of the Land Court Act provides that:
“56 Evidence admissible on appeal
(1) An appeal in the Land Appeal Court must be decided on the evidence on the record of the proceeding in which the decision appealed against was made.
(2) However, the court may admit new evidence if -
(a) the court is satisfied admission of further evidence is necessary to avoid grave injustice; and
(b) the party applying to have further evidence admitted gives the court an adequate reason for the evidence not previously being given; and
(c) application to have further evidence admitted is made before the hearing of the appeal."
Land Appeal Court proceedings
I concluded in the previous section that the appellants' submission seeking costs of the Land Court proceedings were properly characterized as an application to the Land Appeal Court for those costs. Consistently with that conclusion I consider that the appellants' application for the costs of the appeal to the Land Appeal Court is also properly characterized as an application. I do not consider that s 56 is applicable to that application. The section is concerned with an appeal to the Land Appeal Court, not with the consequential application for costs of that appeal. It would be very strange if the effect of s 56 were that no evidence could be admitted on the question of costs because an application for leave to admit that evidence was not made before the hearing of the substantive appeal.
Accordingly it is not necessary for the admission of this evidence that the appellants comply with s 56(2). Rather s 55(a) applies and this Court should deal with the application on the basis that it is not bound by the rules of evidence and may inform itself in the way it considers appropriate.
Although this Court is not bound by the rules of evidence, I do not consider that this evidence should be admitted for the purpose of determining the costs of the appeal to the Land Appeal Court as the evidence is not relevant to that issue. I agree with Henry J that the evidence relates to the events preceding the hearing below. It does not point to any relevant conduct on the part of the respondent in supporting the decision of the Land Court. In particular, there is no evidence that the Calderbank offer was repeated before the appeal to this Court and consequently there was no failure on the part of the respondent that could found an order for an indemnity costs[20].
[20] Stewart v ATCO Controls Pty Ltd (2014) 311 ALR 351 at [7].
Land Court proceedings
Similarly, I do not consider that the appellants' application to this Court to admit further evidence in relation to the costs of the Land Court proceedings is to be determined in accordance with s 56 of the Land Court Act. Again, this Court should deal with the application on the basis that it is not bound by the rules of evidence and may inform itself in the way it considers appropriate[21]. Mr Manning's affidavit states that the documents relate to the state of knowledge of the respondent at the date the Calderbank offer was made. On that basis they are relevant to the determination of costs of the proceedings below. The respondent has conceded that documents 6, 7 and 8 in the list above, being documents evidencing the Calderbank offer should be admitted. I consider that all the documents identified in the application should be admitted into evidence.
[21] Section 55(a) Land Court Act 2000.
Determination of costs of Land Court proceedings
In the matter of Williams v Department of Environment and Resource Management[22] I concurred with the decision and orders of Henry J that the respondent pay 70 per cent of the appellants' costs of the appeal below from and including 23 June 2008, on the indemnity basis.
[22] [2014] QLAC 10.
The appeals to the Land Court in both this matter and Williams were heard together and, therefore, I consider that, in each matter, the same order as to costs should be made. For the reasons set out by Henry J in Williams, I consider that the Order in this matter should be that the respondent pay 70 per cent of the appellants' costs of the appeal below from and including 23 June 2008 on the indemnity basis.
Orders
1. The respondent pay 85% of the appellants' costs of the appeal to the Land Appeal Court, to be assessed on the standard basis.
2. The respondent pay 70% of the appellants' costs of the appeal to the Land Court from and including 23 June 2008 on the indemnity basis.
MEMBER EVANS
Introduction
This Court delivered reasons for judgment on 6 December 2013 allowing the appellants’ appeal from the Land Court holding that a water licence ought be granted to the appellants, however, not for the amount sought on appeal, but for a significantly lesser amount (267 ML per water year as opposed to 813 ML per water year), and made various orders, including orders giving the parties leave to make submissions in relation to costs.
Submissions were subsequently made, both in writing, and to a limited extent orally. The appellants seek an order that the respondent pays the costs of this appeal and the costs of the appeal below. Both orders are sought on an indemnity basis
Preliminary matter – application to adduce evidence in relation to the appellants Calderbank offer below
The appellants filed an application said to be pursuant to s 56 Land Court Act 2000 to adduce evidence by way of affidavit in relation to their Calderbank offer (or more accurately what is accepted by the respondent to have been one).
That affidavit had exhibited to it a series of documents, including what was accepted by the parties as being the appellants’ Calderbank offer. It also contained other documents.
A preliminary point arises as to the true character of this application and whether it is made under s 56 Land Court Act 2000 or not. This is an important point because if s 56 applies then the appellants would be unable to rely on this material because the application was not made before the commencement of the hearing of the appeal[23].
[23]Save for any concessions on which the Land Appeal Court finds it appropriate to act: Gallo v Chief Executive, Department of Environment and Resource Management (2013) 34 QLCR 371, [283]-[289]. Here the respondent was prepared to make concessions in relation to three of the documents which are essentially relied on as the appellants’ Calberbank offer. It would be appropriate to accept these concessions and act on them in this case.
Section 56 Land Court Act 2000 provides:
"56 Evidence admissible on appeal
(1) An appeal in the Land Appeal Court must be decided on the evidence on the record of the proceeding in which the decision appealed against was made.
(2) However, the court may admit new evidence if—
(a)the court is satisfied admission of further evidence is necessary to avoid grave injustice; and
(b)the party applying to have further evidence admitted gives the court an adequate reason for the evidence not previously being given; and
(c) application to have further evidence admitted is made before the hearing of the appeal."
In my view s 56 does not apply. Section 56 is limited to deciding the appeal. It is not directed at any application for costs of the appeal, nor in the circumstances here, the costs below.
If the position were otherwise parties would be forced to put in material on costs at a stage well prior to when the outcome of the appeal was known (such that some or all of the material might ultimately be completely irrelevant and the material put in would be really a scatter-gun approach out of an abundance caution as to what might become relevant) and in circumstances where it may be quite improper, imprudent or undesirable for the Land Appeal Court to see that material before deciding the appeal. In my view s 56 is not directed at costs applications for the appeal and nothing in the opening words of s 56(1) is directed at such applications.
Accordingly, the test for the admissibility of the material becomes one of relevance, subject of course to any other valid objections but having regard to s 55 Land Court Act 2000[24].
[24]This is to be contrasted with the position in relation to the appeal in Williams. That case was quite different. There was no doubt that s 56 Land Court Act 2000 applied to the documents sought to be adduced because in Williams the appeal was solely against a refusal to order costs below. In other words, the appeal itself (its substance) concerned the costs below. This Court ruled the documents were inadmissible in Williams because the pre-conditions in s 56 were not met. Here, the costs below are consequential to the substance of the appeal before this court.
Counsel for the respondent, Mr Hinson QC, very fairly and reasonably made a concession that the court ought receive the documents (6 to 8 in the application) being “LAM5” to the Affidavit of Leslie Anthony Manning sworn 27 February 2014. Those documents are clearly relevant to the costs below. I allow the application to this extent.
As to each of the other documents sought to be relied upon, Mr Manning in paragraph 2 of his affidavit swears that they “relate to the state of knowledge of the respondent at the date the Calderbank offer was made”. The Calderbank offer was made by the letter dated 5 September 2008 relevantly in these terms (and in rejection of an offer made by the respondent):
“We are instructed that our client would be prepared to consider settling the appeal on the basis that their existing water entitlement is increased to an entitlement of around 2/3 of the amount originally applied for, that is, in the range of 660-700 ML per water year; and that each party bear their own costs of the appeal.[25]”
[25]The respondent took no issue that this did not amount to a Calderbank offer. I note the approach taken recently by McMurdo J in Linc Energy Ltd v Chief Executive Administering the Environment Protection Act 1994 [2014] QSC 172, [41] in the context of an application for declarations.
This court allowed the appellants a water licence of 267 ML per water year. The amount applied for originally was 990ML per water year. The amount allowed was about 27% of the amount originally applied for. If nothing more appeared the offer was nowhere near what the court ordered and failure to accept it, or to negotiate with the appellants for an allowance in the region of it, could not be said to be unreasonable.
To counter this the appellants seek to argue a change in circumstances following the making of the offer in September 2008 and the determination of the appeal by this Court in their favour, such that had it not been for those changes (which presumably the appellants seek to say were unforeseeable at the time) the offer was not “beaten”. I deal with this more fully below in determining that it was not unreasonable for the respondent to have not accepted the Calderbank offer. My view on this would not change whether one has regard to the further documents sought to be relied on in Mr Manning’s affidavit or not.
Accordingly, I do not find it necessary to determine the admissibility of these further documents in relation to the costs below. I agree that none of the documents (including the Calderbank offer) are relevant to the costs in this Court. I agree with [54] of Henry J’s judgment in this respect and with [92] of the judgment of the President.
Jurisdiction to award costs below
The costs application raises important points of law in relation to the jurisdiction of the Land Appeal Court. In this case, the appellants lost in the Land Court. No order was made as to the costs below. The only order made by the Land Court was that the appeal to the Land Court was dismissed. However, as this case involved an appeal from a review decision of the respondent in relation to an application for a water licence, the costs of the appeal below were governed by the provisions of s 882 Water Act 2000. That section, which is located in Ch 6 of the Water Act 2000, provides as follows:
"882 Powers of court on appeal
(1) In deciding an appeal, the court may—
(a) confirm the review decision; or
(b) set aside the review decision; or
(c) amend the review decision in the way the court considers appropriate; or
(d)send the matter back to the reviewer and give the directions the court considers appropriate; or
(e)set aside the review decision and substitute it with a decision the court considers appropriate.
(2) If the court amends the review decision or substitutes another decision for the review decision, the amended or substituted decision is, for this Act (other than this part) taken to be the reviewer’s decision.
(3) Each party to the appeal must bear the party’s own costs for the appeal.
(4) However, the court may order costs for the appeal, including allowances to witnesses attending for giving evidence at the appeal, as it considers appropriate in the following circumstances—
(a) the court considers the appeal was started merely to delay or obstruct;
(b)the court considers the appeal, or part of the appeal, to have been frivolous or vexatious;
(c)a party has not been given reasonable notice of intention to apply for an adjournment of the appeal;
(d)a party has incurred costs because the party is required to apply for an adjournment because of the conduct of another party;
(e)a party has incurred costs because another party has defaulted in the court’s procedural requirements;
(f)without limiting paragraph (d), a party has incurred costs because another party has introduced, or sought to introduce, new material;
(g)a party to the appeal does not properly discharge its responsibilities in the appeal.
(5) If the court makes an order under subsection (4), the court may also order the party ordered to pay costs under subsection (4) to pay to the other party an amount as compensation for loss or damage suffered by the other party because of the appeal if the court considers—
(a) the appeal was started merely to delay or obstruct; or
(b)the appeal, or part of the appeal, to have been frivolous or vexatious."
The “court” referred to in s 882 is the Land Court. Unsurprisingly, the appellants made no application to the Land Court in relation to the costs of their unsuccessful appeal to it.
Whilst the respondent succeeded below, it too did not make any application for costs. Again this was not surprising in view of s 882.
Section 882 does not permit a costs order to be made merely because a party has been successful.
Section 882(3) applied and the parties had to bear their own costs[26]. There can be no suggestion in this appeal that any party had any intention of ever applying for a costs order under s 882(4) in relation to the result below and they did not do so.
[26]It is now, and has been for some considerable time, settled law that costs are a creature of statute (Amos v Monsour Legal Costs Pty Ltd [2008] 1 Qd R 304, [34]; Robinson v Helicopter Company (No 2) [2014] QSC 213, [13]), although Quick on Costs notes that the House of Lords had held that it had an inherent jurisdiction to award costs of appeals to it as the ultimate court of appeal even though there was no statute permitting this (Guardians of West Ham Union v Churchwards etc of St Matthew, Bethnal Green [1896] AC 477), and that the Court of Chancery also did not rely on statute in making awards of costs in equity, although such costs were discretionary and not as of right (Andrew v Barnes (1888) 39 Ch D 133, 138 citing inter alia Lord Harwicke LC in Corporation of Burford v Lenthall (1732) 2 Atk 551; 26 ER 731 although an earlier statute of 1393 17 Rich II c 6 did exist empowering the Court of Chancery to give damages if a plaintiff’s allegations were found not to be true and the damages were held to encompass costs. This statutory power was confirmed in 1436 by 15 Henry VI c 4). The common law courts relied exclusively on statute to award costs and there was no discretion. Following the Judicature Act reforms in England and here, the position reached (perhaps with the exception of the House of Lords) was that costs were a creature of statute but were discretionary and not as of right: Knight v Special Assts Ltd (1992) 174 CLR 178 and cases there cited as well as Oshlack v Richmond River Council (1998) 193 CLR 72 esp at [33]-[35]. In earlier times there seemed to be power to sue for costs in a separate action as damages where no statute permitted them being awarded. There is still scope in some instances to sue for costs as damages as is illustrated by the Court of Appeal’s decision in Hawkins v Permarig Pty Ltd [2004] 2 Qd R 388.
Sections 882(3) and 882(4) are clearly intended to limit the circumstances in which costs are ordered in these types of appeal in the Land Court. In my view, as explained in more detail below, s 882(3) and s 882(4), as a matter of interpretation, implicitly require that any application for an order for costs under s 882(4) be made to the Land Court within a reasonable time, otherwise the effect of the Land Court’s decision otherwise disposing of the appeal, is by force of s 882(3) taken also to dispose of the costs by the result given in s 882(3). Up until such time as a reasonable time has passed, a party may apply under s 882(4) for a different result to what will flow if no such application is made within that time. Otherwise, outside that time, there will then be no power to make any order for costs in the Land Court and the decision made by the Land Court, taken in conjunction with s 882(3), will determine the costs.
The jurisdiction point at issue is whether the Land Appeal Court can make an order for the costs below where no order was applied for by either side and no order was made, but the basis for there having been no order applied for or made below, has been disturbed because this court has reversed that primary decision.
In essence the respondent contends that because no order was made below, the appeal against the Land Court’s decision which is before this Court does not encompass the costs below because the “decision” the subject of this appeal did not decide the costs below and there was no order of the Land Court which dealt with the costs[27].
[27]There are previous decisions of this Court where a similar problem has arisen but none where the Land Appeal Court has considered the matter and held it does or does not have jurisdiction: LGM Enterprises Pty Ltd v Brisbane City Council (2008) 29 QLCR 176. A question of jurisdiction is an important matter. Parties cannot give a court jurisdiction which it does not have by consent unless a specific provision of a statute allows them to do so (in which case the statute itself is the source of the jurisdiction): Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150. A court ought not make orders simply because the parties consent where jurisdictional issues arise as to whether the court has power to do so. Even in the absence of the parties raising a jurisdictional issue, the court is bound to determine for itself whether it has jurisdiction or not: Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Proprietary Co Ltd (1911) 12 CLR 398, 415; Khatri v Price (1999) 95 FCR 287, [14]; PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission (2012) 247 CLR 240, [16].
The Land Appeal Court is, as its name suggests, an appellate court. That said, appeals to it are by way of rehearing, with limited power to admit further evidence, and are not appeals stricto sensu. As stated by McHugh, Gummow and Callinan JJ in CJD v VAJ[28]:
“No doubt it is true that, because the appeal is by way of rehearing, the Full Court's jurisdiction is neither purely appellate nor purely original: Ex parte Australian Sporting Club Ltd; Re Dash (1947) 47 SR(NSW) 283”
[28] (1998) 197 CLR 172, [111]
This court is a statutory court and its jurisdiction is derived entirely from statute[29]. The resolution of the present issue involves a determination of the interpretation of the relevant statutory provisions. That said, the primarily appellate nature of the jurisdiction, albeit by way of rehearing, is of relevance in considering the issue: CJD v VAJ[30]; and see generally Lacey v Attorney-General (Qld)[31].
[29] This can include implied powers: Bonan v Hadgkiss (2006) 160 FCR 10, 26 [55].
[30] (1998) 197 CLR 172, [111], [113].
[31] (2011) 242 CLR 573, [49]-[62].
Unlike the Supreme Court[32], the Industrial Court[33] and the Mental Health Court[34], the Land Appeal Court is not a superior court[35].
[32] Kable v New South Wales (2013) 87 ALJR 737, [54].
[33] Section 242 Industrial Relations Act 1999
[34] Section 381 Mental Health Act 2000.
[35]The Medical Assessment Tribunal created under s 33 Medical Act 1939 (now repealed) was also a superior court but it has since ceased to exist: see Re Cooke [1997] 1 Qd R 15. If any statutory rationale can be discerned for creating these courts outside the Supreme Court as superior courts, it seems to be that they each comprised a Supreme Court judge.
The Land Appeal Court is established by s 53(1) Land Court Act 2000. By s 53(2) it is a court of record. The Land Appeal Court is not established as a superior court. It is an inferior court, as is the Land Court[36].
[36]The Land Court is established by s 4 Land Court Act 2000. Although s 4(1) refers to it as a specialised judicial tribunal, it is established in s 4(2) as a court of record. Some of its jurisdiction in some cases might be thought to be non-judicial – see Hancock Coal Pty Ltd v Kelly and Department of Environment and Heritage Protection (No 4) [2014] QLC 14, and see generally Owen v Menzies [2013] 2 Qd R 327 in relation to the status of QCAT.
The Land Appeal Court is not established in express terms as a division of the Land Court. This is to be contrasted with the position of the Supreme Court. The Supreme Court is a superior court. Expressly, by s 5(1) of the Supreme Court of Queensland Act 1991 the Supreme Court is divided into the office of Chief Justice (s 5(1)(a)) and two divisions, namely, the Court of Appeal and the Trial Division[37].
[37] See generally the judgment of Morrison JA in R v Stanley [2014] QCA 116, [51]-[53]
The source of a statutory inferior court’s jurisdiction is statute. If there is no statutory provision, which either expressly or by necessary intendment, gives the court jurisdiction, then it will not possess it[38].
[38]Medical Board (SA) v N, JRP (2006) 93 SASR 546, 553-554 [21]-[23] and cases there cited noting the concept of inherent jurisdiction is confined to superior courts, although an inferior court possesses such jurisdiction as may be implied by way of necessary implication. See also Bonan v Hadgkiss (2006) 160 FCR 10, 26 [55].
The nature of the status of the court as being either a superior or an inferior court is also relevant as is the distinction between the court’s jurisdiction and its powers.
As to the latter, the decision of the Court of Appeal in Queensland Heritage Council v Corporation of the Sisters of Mercy of the Diocese of Townsville[39] is illustrative. There, an appeal could only be brought to the Planning and Environment Court on a certain ground i.e. that the place the subject of the appeal did not satisfy the cultural heritage criteria referred to in s 162(1) of the Queensland Heritage Act1992. However, the Court of Appeal held that, if that ground was made out, in exercising its statutory powers to make orders in the appeal, the Planning and Environment Court could have regard to matters which would not have constituted grounds of appeal, such as the structural integrity of the building which was one of the criteria referred to in s 51(3).
[39] [2014] QCA 165.
As to the former, in Fraser Property Developments Pty Ltd v Sommerfeld (No 1)[40] McPherson JA (with whom Williams JA and Philippides J agreed) stated:
[40] [2005] 2 Qd R 394, 401-402 [23].
[23] In interpreting a statute like this, with its labyrinthine and poorly integrated definitions and provisions, it is necessary to remain acutely aware of the risks of being mistaken about a matter as fundamental as jurisdiction and its consequences for the parties. That is no doubt the reason for the long-standing rule that:
“nothing shall be intended to be out of the jurisdiction of a Superior Court, but that which specially appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an Inferior Court but that which is so expressly alleged.”
See Peacock v. Bell (1667) 1 Wms. Saund. 69, 74; 85 E.R. 81, 87–88, applied in Mayor of London v. Cox (1867) L.R. 2 H.L. 239, 259–260; Cameron v. Cole (1944) 68 C.L.R. 571, 585; and D.M.W. v. C.G.W. (1982) 151 C.L.R. 491, 509.
The Supreme Court is the superior court of general jurisdiction for this State, and, if its authority to hear and determine the plaintiff's claim against the third defendant is to be taken away and bestowed on another body or tribunal, it must be accomplished by statutory provisions that are very much clearer in their meaning and effect than those contained in either s 75(1) or s 77(1) of the Queensland Building Services Authority Act 1991. The presumption against depriving this Court of jurisdiction is one that applies with peculiar force in the present case.”
Recently, the High Court has warned against automatically applying English decisions in relation to superior courts in England to courts in Australia without considering whether they are applicable to an Australian context. In Kable v New South Wales[41] it was held by French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ.
[41] (2013) 87 ALJR 737.
The order of a superior court of record
[28] As has already been noticed, there was and could be no dispute that the Supreme Court of New South Wales was and is a “superior court of record”. It is necessary, however, to approach what meaning is conveyed by that expression with some fundamental principles at the forefront of consideration.
[29] First, and foremost, there can be no unthinking transplantation to Australia of what has been said in English cases40 about the consequences of a court being established as a “superior court of record”. The constitutional context is altogether different. Due regard must be paid to those differences.
[30] Second, there is no Australian court with unlimited jurisdiction.41 Hence, although it is sometimes suggested42 that, in England, the prerogative writs of mandamus, prohibition and certiorari were not available to provide relief against a judgment or orders of a judge of a superior court, that suggestion, even if accurate, could have no direct or immediate application in Australia.
(j)Both sides introduced substantial expert evidence into the appeal which had not been before the reviewer.
That said, some costs already incurred were wasted because of the change from Mr Lait to Dr Evans which in my view it is appropriate to award which occurred before the notification of the change to Dr Evans. These included (but are not limited to) the correspondence passing between the parties about Mr Lait and at least some expense in obtaining the letter from Mr Sutherland (the enclosure to Ex 15) at 747-748 of the appeal record.
As to s 882(4)(g), whilst there was no breach of the court’s directions, the obligation which the respondent breached in the appeal was changing experts, after leading the appellants to believe over a considerable period of time that Mr Lait would be its expert. This wasted costs already incurred. In my view, if nothing else, this was a breach of the obligation to act expeditiously to minimise costs. The respondent gave no sworn explanation for the change, notwithstanding the costs sought against it by the appellants were of a substantial amount.
In my view these wasted costs can and ought be awarded under s 882(4)(g). I turn then to consider s 882(4)(f).
Whilst at the time these costs were wasted Mr Lait had not been nominated by the respondent as an expert under the Land Court’s directions, it seems to me that the respondent had led the appellants to believe that Mr Lait would be its expert and therefore would be locked in when the time came. The locking in of Dr Evans instead of Mr Lait under the directions occurred afterwards. This introduction of Dr Evans into the case did not cause these costs to be incurred (they had already been incurred) but it did cause them to be wasted. Is this lack of causation an impediment to them being awarded under s 882(4)(f)?
I accept that s 882(4)(f) strongly suggests that it is only those costs which are incurred as a result of the conduct there set out which is its subject. However, that conduct is also capable of producing wasted costs and such wasted costs have a direct causal relation to the conduct. The word “incurred” might also be thought to be wide enough to include “incurred” in the sense that those costs have become wasted, even though they were initially incurred before the conduct in s 882(4)(f), but came to be “incurred” as wasted costs later by reason of that conduct. I deal with this further below.
There are other features of s 882(4)(f) (which remained unexplored in argument) which could have affected its application here in any event. As to the scope of s 882(4)(f) i.e. that “a party has incurred costs because another party has introduced, or sought to introduce, new material”, the words “new material” in s 882(4)(f) affect the application of the provision.
Another point to be noticed about the scope of s 882(4)(f) is that it is the mere introduction or attempt to introduce this material and the incurring of costs as a result which triggers its operation. Unlike s 882(4)(g), there is no need to show any fault on the part of the party doing so or any breach of that party’s obligations in the appeal. That said, as is apparent from my comments above, in my view there is no general rule that merely because a party breached s 882(4)(f) and the other party has incurred costs as a result, that those costs ought be awarded in the absence of good reason not to do so. Rather, I am of the view that this remains a matter of discretion to be exercised judicially in the sense discussed above.
Further, whilst fault is not a pre-condition to its application, it may be relevant to the exercise of discretion once the power to award costs pursuant to it is triggered. For example, circumstances relevant to the matter may change necessitating the introduction of new material. The absence of fault may inform the discretion not to award costs in those circumstances.
As to the meaning of “new material” in s 882(4)(f), on one view it might be that “new material” means any material that was not before the reviewer who made the review decision, so in that sense it is “new material” so far as the appeal to the Land Court is concerned. This would be a very broad interpretation of this provision and in practice most (if not all) cases would involve the introduction of “new material” in this sense. In a practical sense, this would defeat the regime intended by ss 882(3) and 882(4) Water Act 2000 which is intended clearly to limit the circumstances in which costs are applied for and awarded.
If that were the true interpretation, then in the present case, not only did the respondent introduce new extensive material not before the reviewer, but so did the appellants. Indeed, without that new material the appellants had no hope of success on this appeal.
Another interpretation of “new material” is “new” in the sense that it does not arise out of what was before the reviewer and is not merely further material (whilst perhaps of a more detailed or comprehensive nature) supplementing and filling out what was there before but is material which is not of the same nature as that put before the reviewer. Again, this case involved much material on both sides that was not before the reviewer.
Another interpretation again might be that s 882(4)(f) is focused on the proceedings in the Land Court. If that is the case, the words “new material” would take on a different and more limited meaning directed to “new” in the sense of “new” to the Land Court.
As the practice of the Land Court is to make directions about evidence before the hearing of the appeal, “new material” in this sense would mean material not provided and notified in the ordinary course of the preparation of the appeal for hearing or material introduced (or sought to be introduced) on the hearing not previously notified. I incline to this view, although I am of the view this also extends to a situation where a party has led another party to believe that a particular expert will be nominated as its expert and a different expert is engaged, even though this occurs prior to the time the party is called upon by directions to nominate its experts. The reasons I am of the view this is the correct interpretation are as follows:
1.the appeal to the Land Court is an appeal by way of hearing de novo. New material that was not before the reviewer is likely to be present, in most, if not all cases. The Land Court appeal is to be decided on a basis unaffected by the reviewer’s decision: s 880(2) Water Act 2000.
2.ss 882(3) and 882(4) are plainly intended to limit the occasions on which costs can be awarded. A broad interpretation of “new material” would defeat this;
3.a more limited interpretation is called for consistent with the intention of these provisions in the context of these types of appeal;
4.this interpretation is consistent with this intention;
5.this interpretation best promotes the purpose of these provisions[99];
6.whilst this is the interpretation of a power, sometimes the context does matter and this is one of those cases where it does.
[99]Whilst this might be criticised as reading down powers by limitations not contained in them, I do not think so. The provisions must be considered in context where the hearing before the Land Court is a hearing de novo unaffected by the reviewer’s decision and where expert evidence will need to be placed in a form acceptable to the Land Court. Cf the approach taken in Lacey v Attorney-General (Qld) (2011) 242 CLR 573 and Metrostar Pty Ltd v Gold Coast City Council [2007] 2 Qd R 45
The “jurisdictional[100]” requirements of s 882(4)(f) (dealt with at length above) were satisfied because the respondent did introduce new evidence being the evidence of Dr Evans. It was “new” to the appellants in the appeal who had been led to believe that evidence was to be given by Mr Lait. In my view, “new” in this context is wide enough to include this situation, even though it was not a breach of any directions of the Land Court. The appellants did incur further costs in engaging their own expert in Mr Smith to meet most of this new evidence from Dr Evans. Section 882(4)(f) would allow the awarding of those costs, if appropriate, on any of the above interpretations of the section. However, the width of the section does make a difference when it comes to exercising any discretion as to what is appropriate.
[100] In the sense of pre-conditions to the exercise of the power in s 882(4)(f)
As to awarding the earlier wasted costs as a matter of power to do so, as discussed above, it seems to me that these costs, although not caused to be incurred by the conduct invoked by s 882(4)(f) might be argued to bear a sufficient rational connection (and indeed causative connection) to that conduct that they might be able to be awarded in this case because they were wasted by that conduct. Alternatively, the same object could be achieved by awarding the costs incurred by the introduction of Dr Evans, but to fix the quantum as not exceeding the wasted costs. That said, the latter course is an unattractive one which is in reality awarding the wasted costs, and the earlier course is not supported by the clear words of the statute. The legislature has chosen the circumstances in which costs might be awarded. Section 882(4)(f) talks only of costs incurred and not of costs wasted. This must inform the question as to what costs are appropriate.
That said, the way this case was argued did not raise arguments based on the scope or width of s 882(4)(f) and I leave open these issues.
Prima facie, the power is triggered in this case because the respondent did introduce “new material” regardless of which view one takes of the meaning of those words. Prima facie, this court could then award all the costs caused by the introduction of that new material. The real issue in this case comes down to an exercise of the discretion. Should the court adopt a view that prima facie all the costs caused ought be awarded in the absence of a good reason not to? I think not. In my view, s 882(4)(f) gives an unfettered discretion whether or not to award the costs, the only requirement being that it is appropriate to do so. The discretion must be exercised judicially.
In my view the court ought not do so, as a matter of discretion, for the reasons in paragraph [293] above. I note in particular, as regards s 882(4)(f) that notice was given that there would be new evidence occurred at a very early stage in the progress of the appeal in the Land Court. Significantly, both sides in this case obtained extensive expert evidence after the appeal was commenced, and which was not before the reviewer in circumstances where the material that was before the reviewer did not entitle the appellants to succeed and the new material obtained by them from Mr Sutherland was essential to their success. Whether or not this was “new material” for the purposes of s 882(4)(f), it shows the context of the way both parties approached the matter.
Further, in this case, no injustice results from not making any award under s 882(4)(f) because there is power to award the wasted costs under s 882(4)(g) which are in my view appropriate to meet the justice of the case, even if these wasted costs cannot be awarded under s 882(4)(f).
In my view the appropriate order to meet the justice of this case is one which orders the respondent to pay the wasted costs of having walked away from Mr Lait and introduced Dr Evans into the case in breach of s 882(4)(g).
This conduct in relation to Mr Lait is also relied upon as a trigger to s 882(4)(b). In my view the respondent’s introduction of Dr Evans into the case in lieu of Mr Lait was not vexatious and did not render the respondent’s conduct of the appeal vexatious within the meaning of s 882(4)(b) even applying the most liberal and broad interpretation of that term. It is true that the appellants incurred a lot of costs as a result but that of itself does not render the conduct vexatious and certainly not in the context of the circumstances of this case. As I have made clear above I accept the earlier conduct of the respondent in dealing with the water licences can be taken into account as part of that context as well as any relevant and properly raised subsequent conduct. The subsequent conduct resulting in the variation of the judgment in Williams to remove the condition is not conduct to which this court can or ought have regard in the circumstances for the reasons given above.
The appellant argued the respondent “failed to disclose and properly brief experts”. The complaint was a double one – related firstly to disclosure of documents rather than experts.
The disclosure related to the appellants’ unfairness argument. The appellants sought the disclosure of the documents showing the previous over-allocations. This was not given. Instead they resorted to an FOI application.
The complaint about briefing the expert is that Dr Watts was not briefed to consider the unfairness argument (and not briefed with the documents relating to it). As to this latter complaint it is without substance. The unfairness argument was not a matter for expert evidence as such. The determination of the argument came down to a legal argument, once the factual basis for it was established.
However, in this case, the respondent’s behaviour in relation to the unfairness argument, in not making factual concessions was such that it did not discharge its responsibilities in the appeal below.
In the appellants’ written submissions the appellants complain in part:
“The failure of the respondent in the present case to make any timely admissions of his breaches of the Act when assessing the applications within Area B, including the appellants, is a critical point of distinction in terms of the gravity, in a comparative sense, of the unmeritorious conduct of the Chief Executive in the present appeal.”[101]
[101] Paragraph 58 of the Appellants’ Outline filed 7 February 2014.
The appeal to the Land Court was governed by the Land Court Rules 2000. These, in turn, picked up the Uniform Civil Procedure Rules 1999 in those cases where the Land Court Rules did not provide for a matter and the UCPR did: r 4 Land Court Rules. This would in my view pick up r 5 UCPR which provides:
5 Philosophy—overriding obligations of parties and court
(1) The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.
(2) Accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.
(3) In a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way.
(4) The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court.
Example—
The court may dismiss a proceeding or impose a sanction as to costs, if, in breach of the implied undertaking, a plaintiff fails to proceed as required by these rules or an order of the court.
In addition the respondent also had the responsibilities of a model litigant, quite apart from this, which would include a duty to act expeditiously and not to put in dispute factual matters which are known by it to be true[102].
[102]Kenny v South Australia (1987) 46 SASR 268, 273; State of Queensland v Allen [2012] 2 Qd R 148, [81].
In this case it seems to me that the respondent ought to have conceded the factual basis of the unfairness argument (or the great bulk of it) in order to have saved the costs of the appellants preparing and running the appeal to establish these facts. It seems to me that the respondent was under an obligation to proceed expeditiously which in the context of r 5 encompassed acting to expeditiously determine the unfairness issue. It also seems to me that the respondent knew full well what the position was in relation to what it had done in the past but did not make any concessions about this prior to the hearing of the appeal which would have resulted in a saving of time in the appeal and a reduction of costs to the appellants in establishing the factual basis for their unfairness argument.
As an instance of this I note that the appellants had to tender at the hearing some three volumes of material relating to the other licences which they had obtained from their investigations (Ex 43) and also tendered the statement of Mr Gould Ex 23 who was not required by the respondent for cross-examination or examination in chief. The documents in Ex 43 were the subject of an extended cross-examination of the appellants’ expert witness, Mr Sutherland the questions for which show matters that could have been the subject of early, expeditious, factual concessions. In addition there was the evidence obtained from Mr Bell under cross-examination.
In my view, the respondent ought to have made concessions consistent with what the respondent had done and which was known to the respondent throughout which would have avoided this. This would have resulted in a saving of costs. Balanced against this is the fact that there would have been some costs associated with considering, and making, the concessions and the further significant fact that the respondent ultimately succeeded on this unfairness issue. That said, the determination of that issue was made more expensive than it ought to have been. The respondent had in its possession all of the material and the appellants did not.
The respondent submitted that in a case such as this whilst it could be deprived of its costs of the issue on which it succeeded[103] it could not be ordered to pay them. It is not the case that there is any general rule that costs cannot be ordered against a party who has been successful on an issue[104]. The matter is one of discretion having regard to the relevant circumstances of the case. That discretion must be exercised judicially. There must be some circumstance or factor which justifies making the order.
[103] Which will be the practical position if s 882(3) applies or no order is made under s 882(4).
[104]An example is where a party is seeking an order for an extension of time or to excuse an indulgence. Even though completely successful, costs might be ordered against that party. Similarly, where a party succeeds generally, even though the defendant may have succeeded on some arguments, the defendant might, in appropriate circumstances, be ordered to pay the whole of the costs. That is not to say, that in an appropriate case, the discretion might not also be exercised to order the party to recover only part of its costs having regard to the issues on which it succeeded balanced against those on which it failed. Further, where a notice to admit facts is served but the facts are not admitted, if those facts are established at the hearing, the costs of proving the facts ultimately is to be paid by the respondent to the notice even though that respondent ultimately succeeds in the litigation unless the court otherwise orders: see r 189(4) UCPR.
For instance, in Commonwealth and the Central Wool Committee v Colonial Combing, Spinning and Weaving Co Ltd[105], the High Court made an order for costs of proving the facts even though the party who proved them had lost on the law. The Court deemed this appropriate in the circumstances of that case. Isaacs J at 466 reasoned:
“With regard to the costs, both parties have set up agreements which turn out to be invalid, and consequently the plaintiffs (the Commonwealth Government and the Central Wool Committee) fail on the law in the action, and the defendant (the Company) fails on the law in the cross-action. An enormous time was occupied by the trial of issues of fact – a trial which practically eventuated, so far as the facts are concerned, in the complete success of the Government. The circumstances are fully set out in the judgment on the facts referred to this Court. In my opinion the Company should pay the costs occasioned by the contest as to facts. The order as to costs, in my opinion, should be that the defendant Company be ordered to pay all costs of and occasioned by the issues of fact, including the whole costs of the trial, and except those costs, the parties should bear their own costs of the action and of the three arguments in the Full Court.[106]”
[105] (1922) 31 CLR 421.
[106] The costs order ultimately made was to this effect – see at (1922) 31 CLR 421, 478.
In my view the matters discussed above provide a basis for ordering part of the costs of establishing the factual basis for the unfairness issue against the respondent. As the respondent succeeded on the legal argument, and there would have been some costs associated with considering and making concessions in any event, I would allow the appellants 50% of these costs below.
One of the complaints made is that the respondent did not provide disclosure of documents going to the unfairness issue resulting in the appellants having to incur expense in bringing an application to obtain, and obtaining these documents under the Freedom of Information Act.
The respondent claims it did not provide these documents because there were 25 odd boxes of them and that they were irrelevant in any event because the unfairness argument was unarguable.
The documents sought were directly relevant to the unfairness argument. They ought to have been disclosed as part of the respondent’s disclosure. However, it does not seem to me that failure to do so necessarily resulted in the appellants incurring costs that would not have been incurred had they been disclosed. Had they been disclosed it is correct the appellants would not have incurred the expense of obtaining them on FOI but they still would have incurred the expense of obtaining them on disclosure. It may be that the appellants would not have had to pay some costs of photocopying them[107] and may have had to pay a fee for obtaining them. They would still have had to incur the costs of perusing them, regardless of how they were obtained. Clearly timely concessions by the respondent would have adverted pouring through all these documents no matter how they were obtained.
[107] Belela Pty Ltd v Menzies Excavation Pty Ltd [2005] 2 Qd R 230.
In any event, it seems to me that the approach I have taken above would adequately cover what additional costs there were (if any), with a discount for the fact that the appellants lost the unfairness argument on the law.
I am not persuaded by any of the other arguments put forward by the appellants of any other basis to award costs, or that it would be appropriate to do so in this case.
In my judgment the respondent ought be ordered to pay the appellants 50% of the appellants’ costs of establishing the factual basis for the unfairness issue against the respondent and the earlier costs wasted by changing from Mr Lait to Dr Evans (but not including any later costs in this regard).
The appellants have sought costs on an indemnity basis. There is undoubtedly power, in an appropriate case to award costs on this basis. Whilst the category of cases is not closed in which an award for indemnity costs can be made, there must be some feature justifying the awarding of such costs[108]. In my view, the circumstances are not such that an order for indemnity costs ought be made. Whilst I have found a breach of s 882(4)(f) (but made no award under same), and breaches of s 882(4)(g) this is tempered by the fact that the evidence of Dr Evans led to a finding of fact that there was some interconnectivity and the imposition of the monitoring condition and the respondent succeeded on the legal argument about unfairness as well as the other factors discussed in [293]. The costs will be on the standard basis.
[108] Colgate-Palmolive Co v Cussons (1993) 46 FCR 225.
As to the Calderbank offer (or more accurately what is being treated by both sides as being a Calderbank offer[109]) I do not think the evidence shows it was unreasonable for the respondent not to have accepted it. The relevant principles were neatly summarised by the Court of Appeal recently in J & D Rigging Pty Ltd v Agripower Australia Ltd[110]. It seems to me:
[109]No point is taken by the respondent about the form of the ‘offer’ and I proceed on the basis accepted by both sides. That said, if it were not for this there would be a real issue about whether the document could be so described.
[110] [2014] QCA 23, [5]-[7].
(a)the evidence does not demonstrate the respondent was in possession of sufficient material from the appellants at the time the offer was made in order to assess the likelihood of the court allowing the appeal in the amount of the offer;
(b)to that end, the offer was made after the decision of the Land Court in De Tournouer v Chief Executive, Department of Natural Resources and Water [2008] QLC 15 which made it clear to the respondent the importance of being able to establish the proposed efficient use of water. That case was handed down in July 2008. The offer was made in September 2008 but the appellants did not provide any material to the respondent which went to this until they provided the crop water reports of Mr Sutherland in August 2009 (Ex 46) as revised in February 2010 (Appendix 4 to Ex 21). I reject the submission of the appellants that the offer remained open throughout and for months and years after it was made. The respondent did not act imprudently in not accepting the offer or making a further counter-offer. Its prospects of success at the time the offer was made and open for acceptance were strong given that at that time the appellants had no evidence of efficiency of proposed water use;
(c)in any event, the appellants have not obtained a result which was equal to or better than the offer. The appellants seek to counter this by contending that the offer ought be adjusted to take into account the changes to the subordinate legislation over time which they say affected what deduction was to be made for their existing surface water licences. But even if such adjustments are made, and a notionally higher result used in considering the reasonableness of the offer at the time[111], the offer is still higher than the notionally adjusted result.
[111]See the calculation at para 119 of the appellants’ written outline filed 7 February 2014. The calculation at 119(c) is wrong. The existing surface water licences were at 10 ML/ha. Even if the notional lower figure of 6.6 MlLha is used (calculated at the time of the offer under s 45(2)(ii) of the Barron Water Resources Plan) this gives a deduction in 19(c) of 646.8 and an overall notional figure of 592.22, not 778.42.
It was not argued in this case that there was any different test or lower threshold in considering a Calderbank offer when all that was sought were standard costs. As to this I note the decision of Beech J in McKay v Commissioner of Main Roads (No 7)[112]. That said, in the circumstances of this case, even if for an award of standard costs, the appellants need only have established that rejection of the offer showed the interests of justice justified an award, and did not have to show the respondent acted unreasonably, this would have had to be considered in the light of the requirements of s 882(4). In any event, I do not think the interests of justice justify an award of standard costs in the circumstances of this case based on the Calderbank offer.
[112] (2011) 185 LGERA 118, [106]-[130].
The Costs in the Land Appeal Court
As to the costs in this Court, the appellants did not enjoy complete success on appeal in that whilst they succeeded in overturning the decision below and obtaining a water licence, this was for a much lesser amount than the amount contended for by them in this Court.
It is to be noted that s 34 Land Court Act 2000 (picked up by s 72) does not provide that costs follow the event but that costs are to be borne by each party in the event the court makes no order as to costs. By s 34(1) costs are in the discretion of the court as the court may award them “as it considers appropriate”.
This provision has been considered by the Land Appeal Court previously on many occasions. Recently in Mentech Resources Pty Ltd v MCG Resources Pty Ltd (in liq) (No 2)[113] and YMCA v Chief Executive, Department of Transport and Main Roads (No 2)[114] the Land Appeal Court adopted the position referred to in Mentech, [4]:
[4] Hence the Land Appeal Court may order costs “as it considers appropriate”. The discretion to award costs is unfettered. However, the rule often followed, and the rule incorporated in r 689 of the Uniform Civil Procedure Rules 1999, is that costs follow the event. That rule, while it does not govern the exercise of the discretion here, nonetheless informs it, as there is justice in that approach. It protects those put to unnecessary and substantial expense at the behest of others.” (footnotes omitted)
[113] (2012) 33 QLCR 43.
[114] (2012) 33 QLCR 260.
In Mio Art Pty Ltd v Brisbane City Council (No 3)[115], the Land Appeal Court, after citing these decisions, went on to say:
[115] (2013) 34 QLCR 222.
“[6] The Land Appeal Court in decisions of YMCA v Chief Executive, Department of Transport and Main Roads (No 2) and Ostroco v Department of Main Roads (No 2)[2012] QLAC 7 applied the reasoning in Mentech (No 2).
….
[11] The respondent relies on the decision of Toohey J in Hughes v Western Australian Cricket Association Inc (1986) ATPR 40-748 which was cited with approval by the Court of Appeal in Sochorova v Commonwealth of Australia [2012] QCA 152. Toohey J noted the discretion to award costs (at 48-136):“… must of course be exercised judicially. There were decisions, both of Australian and English courts, that throw light on the way in which the discretion is to be exercised. I shall not refer to those decisions in any detail; I shall simply set out in a summary way what I understand to be their effect.
1. Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order (Ritter v Godfrey [1929] 2 KB 47)
2. Where a litigant has succeeded only upon a portion of his claim the circumstances may make it reasonable that he bear the expenses of litigating that portion upon which he has failed (Fordter v Farquhar [1893] QB 564);
3. A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party’s costs of them. In this sense, ‘issue’ does not mean a precise issue in the technical pleading sense but any disputed question of fact or law. (Cretazzo v Lombardi (1975) 13 SASR 4 at p 12).”
…
[23] In reaching a decision in this matter, the court is mindful of the fact that the specific provisions of s 34(1) of the Act apply rather than the UCPR. It is clearly open to this court to reach a decision on costs on the principles as outlined by Toohey J in Hughes. However, this court is aware of the words of caution expressed by Toohey J:
“10. There is no difficulty in stating the principles; their application to the facts of a particular case is not always easy. Also it is necessary to keep in mind the caveat by Jacobs J in Cretazzo v Lombardi at 16. His Honour sounded what he described as ‘a note of cautious disapproval’ of application to apportion costs according to the success or failure of one party or the other on the various issues of fact or law which arise in the course of a trial. His Honour commented:
‘But trials occur daily in which the party, who in the end is wholly or substantially successful, nevertheless fails along the way on particular issues of fact or law. The ultimate ends of justice may not be served if a party is dissuaded by the risk of costs from canvassing all issues, however doubtful, which might be material to the decision of the case. There are, of course, many factors affecting the exercise of the discretion as to costs in each case, including, in particular, the severability of the issues, and no two cases are alike. I wish merely to lend no encouragement to any suggestion that a party against whom the judgment goes ought nevertheless to anticipate a favourable exercise of the judicial discretion as to costs in respect of issues upon which he may have succeeded, based merely on is success in those particular issues.
[24] It is also appropriate to consider Toohey J’s final reasoning in Hughes
“15 … I approach the matter on the basis that the applicant succeeded substantially in what he set out to achieve through his application. He failed on some issues in circumstances where, not only should he not have the costs of those issues, but there should be some compensation to the respondents for the time taken in meeting those issues both prior to and at the hearing.
16. In my view justice would be served by awarding the applicant 75% of his costs….”
The Land Appeal Court hears many types of different appeals to it. Section 34(1) (picked up by s 72) is a general provision unlike ss 882(3) and 882(4) Water Act 2000 and applies in the cases of many other types of appeals. The legislature has not chosen to enact a provision like ss 882(3) and s 882(4) to govern the costs in this court in appeals from the Land Court dealing with the Water Act 2000. To that end the earlier discussion in this judgment about the approach to be adopted to the costs below has no application here.
That said, I note the approach taken recently by this Court in Ostroco v Department of Transport and Main Roads (No 3)[116] applying Moreton Bay Regional Council v Mekpine Pty Ltd & Anor (No 2)[117].
"It has been held on many occasions that the discretion to award costs granted by s 34 is unfettered but that the discretion is to be exercised judicially, that is for reasons that may be explained and substantiated. However it has also been recognised by the Land Appeal Court that although the discretion to award costs is unfettered, the rule that costs follow the event may inform the exercise of the discretion granted under s 34(1), 'as there is justice in that approach. It protects those put to unnecessary and substantial expense at the behest of others'." [footnotes omitted]
[116] [2014] QLAC 7.
[117] [2014] QLAC 5 at [12].
What is to be understood from Oshlack v Richmond River Council[118] is that what informs the discretion depends on the scope, purpose and object of the relevant statutory provisions. The same considerations which apply to costs in relation to the appeal below do not apply here. Section 34 is much wider than ss 882(3) and (4) in its terms. It does not identify or limit the discretion to any particular type of conduct. The appeal to this court will have been preceded by a decision below. That said, in this case, the decision below was erroneous and required the appellants to come to this Court to obtain the relief they did.
[118] (1998) 193 CLR 72.
The respondent submitted that if the costs of the appeal in this Court were not governed by s 882 Water Act 2000, which they are not, then an appropriate award would be to order the respondent to pay 70% of the costs of the appellants’ costs of the appeal.
In my view 75% represents a fair apportionment in the circumstances.
In my view it would not be appropriate in this case to award all of the costs of the appeal in favour of the appellants.
Whilst in some cases it may be appropriate to allow a party the full costs, notwithstanding the party was not completely successful, and that care ought be taken not to deprive such a party of costs simply because some arguments failed so as not to discourage parties from canvassing all issues which might be material to the proper determination of the case, the issue as to quantum was a discrete issue in the appeal, and an important one. I agree that it is not to be tested simply by reference to the difference in quantum. In some cases this might involve very little time and costs for the appellant who had to come here anyway. That said, in this case, it did involve additional time, effort and costs in considering the evidence on that issue, the applicable law in relation to same, and the alternative findings below. The amount of water allocated as a scarce resource was an important and discrete issue in itself productive of additional time and costs.
As to the costs of the application to adduce further evidence, the appellants did not succeed on the Calderbank argument. The costs of that application were reserved. The respondent ought not be liable for these costs. I would make no order as to the costs of that application.
As to the rest of the costs of the appeal to this Court I would order the respondent pay the appellants 75% of their costs.
The appellants do not identify any conduct by the respondent in the conduct of the appeal in the Land Appeal Court which would justify an award of any of those costs on an indemnity basis. Accordingly, these costs ought be on the standard basis.
Disposition
Accordingly, the orders I propose are:
1.The respondent pay the appellants 50% of the appellants’ costs in the Land Court of establishing the factual basis for the unfairness issue against the respondent to be assessed on the standard basis.
2.The respondent pay the appellants their costs which were wasted by the respondent changing its expert from Mr Lait to Dr Evans to be assessed on the standard basis.
3.The respondent pay 75% of the appellants’ costs of the appeal to this Court to be assessed on the standard basis, save for the costs of the application to adduce further evidence as to which there is no order as to costs.
4.Allow the application filed 27 February 2014 to adduce further evidence to the extent specified in [105] (being documents 6 to 8 – the documents relied on as showing the appellants’ Calderbank offer).
ORDERS
1. The respondent pay 85% of the appellants' costs of the appeal to the Land Appeal Court, to be assessed on the standard basis.
2. The respondent pay 70% of the appellants' costs of the appeal to the Land Court from and including 23 June 2008 on the indemnity basis.
HENRY J
CAC MacDONALD
PRESIDENT OF THE LAND COURT
MD EVANS
MEMBER OF THE LAND COURT