Haber v Department of Main Roads

[2004] QLAC 102

LAND APPEAL COURT OF QUEENSLAND

CITATION:

Haber v Department of Main Roads  [2004] QLAC 0102

PARTIES:

John Kevin Peter Haber
(appellant)

v.

Chief Executive, Department of Main Roads
(respondent)

FILE NO:

LAC2004/0047

DIVISION:

Land Appeal Court of Queensland

PROCEEDING:

Costs of Appeals

ORIGINATING COURT:

Land Court of Queensland

DELIVERED ON:

26 November 2004

DELIVERED AT:

Townsville

HEARD AT:

Written submissions

JUDGE/MEMBER

Cullinane J,
Mr RE Wenck
Mrs CAC MacDonald

ORDER:

1. It is ordered that the appellant pay the respondent's costs of and incidental to the appeal against the Land Court's determination of compensation. 

2. It is further ordered that the appellant pay the respondent's costs of and incidental to the appeal against the Land Court's decision on costs.

3. In both cases, the costs are to be decided by the appropriate assessing officer of the Supreme Court, under the scale of costs prescribed by law for proceedings in the Supreme Court.

CATCHWORDS:

Practice and Procedure – Costs of appeal hearing – Respondent constructing authority successful – Unfettered discretion in Appeal Court to award costs – Usual rule that costs follow the event – Claimant given certain benefits in costs award in initial hearing – Nothing in appeal to justify departure from usual rule for appeal hearing – Costs awarded to respondent

SOLICITORS:

Bill Cooper & Associates for the appellant
Crown Solicitor for the respondent

1. On 13 October 2004, the Court dismissed an appeal by John Kevin Peter Haber (the appellant) from a decision of the Land Court determining the compensation payable by the Chief Executive, Department of Main Roads (the respondent) consequent upon the resumption of land for future road requirement purposes:  Haber v Department of Main Roads [2004] QLAC 0086. On the same day, the Court also dismissed an appeal by the appellant against a decision of the Land Court that the appellant pay 50% of the respondent's costs of and incidental to the matter: Haber v Department of Main Roads [2004] QLAC 0087.

2. By written submission, the respondent now seeks an order that the appellant pay the respondent's costs of and incidental to both appeals.  The solicitors for the appellant have advised the Court that they do not propose to make any submission regarding costs.

3. Section 27 of the Acquisition of Land Act 1967 provides that:

   "27.(1)  Subject to this section, the costs of and incidental to the hearing and determination by the Land Court of a claim for compensation under this Act shall be in the discretion of that court.

   (2)  If the amount of compensation as determined is the amount finally claimed by the claimant in the proceedings or is nearer to that amount than to the amount of the valuation finally put in evidence by the constructing authority, costs (if any) shall be awarded to the claimant, otherwise costs (if any) shall be awarded to the constructing authority.

   (3)  Subsection (2) does not apply to any appeal in respect of the decision of the Land Court or to costs awarded pursuant to section 24(3) or section 25(3)." 

4. Section 34 of the Land Court Act 2000 (which applies to the Land Appeal Court, by virtue of s.72 of that Act) provides, so far as is relevant, 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.

   …

   (5)  The court may, if it considers it appropriate, order the costs to be decided by the appropriate assessing officer of the Supreme Court, under the scale of costs prescribed by law for proceedings in the Supreme Court."

   The effect of these provisions is that the Land Appeal Court has the power to order such costs "as it considers appropriate".

5. The respondent's submission in support of its application for costs relies on the fact that it has succeeded entirely in respect of both appeals.  In such circumstances, the respondent submitted, the successful party to an appeal ought to be entitled to its costs on the basis that such costs should ordinarily follow the event.

6. It is clear that the discretion given to this Court by s.34(1) of the Land Court Act is unfettered, but the discretion must be exercised judicially, that is, for reasons that can be justified and by reference to relevant considerations (Wyatt v Albert Shire Council [1987] 1 QdR 486 at 489; Kabale Holdings Pty Ltd v Chief Executive, Department of Transport (1997) 18 QLCR 166 at 198). In Barns v Director-General, Department of Transport (1997) 18 QLCR 133, the Land Appeal Court said (at 135):

   "This Court has an unfettered discretion as to the costs of and incidental to an appeal before it.  An unfettered discretion is not an unprincipled one, and on ordinary principles, costs in circumstances such as these would follow the event.  The general rule that costs will usually follow the event is one which is deeply embedded in our law.  …  It is a general rule which prima facie should be applied in this case."

7. The appeals against the substantive decision and the decision on costs were dismissed.  It follows therefore, that the respondent should be awarded its costs unless there are reasons indicating otherwise.  In land compensation matters the Land Court should take into account the fact that an appeal to that Court is the only way in which a dispossessed owner can obtain an independent determination of the value of the land taken (Barns at 136;  Banno v Commonwealth of Australia (1993) 81 LGERA 34 at 53), and, as against the dispossessed owner, should apply flexibly the general rule that costs follow the event (Barns at 136).  The appellant was given the benefit of those considerations in the course of the Land Court's decision that the appellant pay 50% of the respondent's costs of and incidental to the substantive matter.  That decision was upheld by this Court.  However, in relation to the costs of the determination of the appeals in this matter, we do not consider that there should be a further departure from the general rule that costs follow the event.  The respondent succeeded on most of the issues before us and its case was conducted in an orderly and efficient manner.  In those circumstances the respondent is entitled to its costs.

Order:

1.It is ordered that the appellant pay the respondent's costs of and incidental to the appeal against the Land Court's determination of compensation. 

2.It is further ordered that the appellant pay the respondent's costs of and incidental to the appeal against the Land Court's decision on costs.

3.In both cases, the costs are to be decided by the appropriate assessing officer of the Supreme Court, under the scale of costs prescribed by law for proceedings in the Supreme Court.

CULLINANE J

JUSTICE OF THE SUPREME COURT

RE WENCK

MEMBER OF THE LAND COURT

CAC MacDONALD

MEMBER OF THE LAND COURT