Hawkins v Director-General, Department of Transport

[1993] QLC 26

[1993] QLC 26

 

  LAND COURT

BRISBANE.

17th September 1993.

Re:                 Resumption for Road Purposes
Acquisition of Land Act 1967
  (A92-61)

William Thomas HAWKINS and Lurline Rose HAWKINS

v.

Director-General, Department of Transport

DECISION ON APPLICATION FOR COSTS

In this matter the respondent seeks costs under the provisions of section 27 of the Acquisition of Land Act 1967. On 14th July 1990 the then Commissioner of Main Roads resumed part of an area of land situated on the corner of Samford Road and Blackwood Street, Mitchelton. Under a franchise agreement the claimants had the lease of the land together with the buildings, fixtures and certain equipment which is known as the Caltex Mitchelton Service Station.
           A claim for compensation dated 29th April 1992 was served on the respondent in the sum of $42,685.  Leave was granted to amend the claim to $44,450.  The amount of the valuation put in evidence by the respondent was $10,030.
On 27th August 1993, compensation was determined under all heads of claim at $19,665. The respondent seeks costs of and incidental to the hearing and determination of this matter pursuant to section 27 of the Acquisition of Land Act 1967, which provides:

"Costs.(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.

1. 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.

The subsection does not apply to any appeal in respect of the decision of the Land Court or to costs awarded pursuant to subsection (3) of section twenty-four or subsection (3) of section twenty-five of this Act."

The discretion given to the Court by subsection (1) to award costs is restricted by subsection (2) and dependent on the amount of the compensation determined.  In this case, if costs are awarded, there is no dispute as to which party is entitled to such costs.  However, while conceding that the respondent is so entitled, the claimants argue that the Court should, in the circumstances of this case, exercise its discretion not to order the claimants to pay the respondent's costs.
           The claimants' case was restricted to a claim for disturbance during the construction period.  The respondent argued that compensation for disturbance was restricted to the period when access to the service station was actually affected by works carried out on the resumed area by the principle in Edwards v. Minister for Transport (1964) 2 Q.B. 134.  The claimants argued for a wider application of the concept of disturbance to cover the loss of profits for the whole period of construction from January to July 1991.

In the event the Court found that although restricted by the principle in Edwards case, disturbance was not limited to the period when construction affected access, but also extended to the disruption to the business of the service station by the activities of the constructing authority and the various service authorities carried out on the resumed land during the construction period.  This extended for a significantly longer period than assessed by the respondent.
           In relation to the question of costs, the respondent says it is entitled to an award of costs as it was forced into litigation by the attitude of the claimants in refusing to accept that compensation was limited by the Edwards principle.  The claimants say that they were prepared to settle the matter for $18,000 on 5th March 1993, but the respondent's best offer at that time was only $12,000.  It was therefore necessary to have the matter determined by the Court.
           The Court's discretion to award costs was considered in Moyses and Others v. Townsville City Council (1979) 6 Q.L.C.R. 271, where the Land Appeal Court cautioned that while the general rule is that costs are in the discretion of the Court, the discretion must be exercised judicially by reference to relevant considerations. The only restriction on the exercise of that discretion is contained in subsection (2) of section 27 of the Acquisition of Land Act 1967.
           The Land Appeal Court refrained from laying down rules and principles as to the way in which the Land Court's discretion should be exercised.  However, it did offer this guidance at page 274:

"First, we do not think that the presence of subsection (2) of section 27 in the Act should be regarded as some sort of legislative suggestion that, where the claim is substantially more than the amount awarded, and the amount put in evidence by the authority is not substantially less than the amount awarded, the Court should not merely refrain from awarding any costs to the claimant, but should award costs to the authority. Second, where the Court is considering whether it should award costs to an authority, it could be wrong to have regard merely to the amounts of the claim and of the award and of the value put in evidence by the authority. We would think that usually it would be more relevant to enquire whether the conduct of the claimant, including his making of an exorbitant claim, if he has made one, has been such as to force the authority, unreasonably and unnecessarily, into litigation."

In this regard the observations of Wells J. of the Supreme Court of South Australia are also relevant.  In Minister for Environment v. Florence (1980-81) 45 L.G.R.A. 127, Wells J. was dealing with section 36 of that State's Land Acquisition Act, which did not contain a similar restriction to section 27(2) of the Queensland legislation. At pages 149-50 he said:

"Upon an ordinary claim in the general jurisdiction it is, generally speaking,  obvious  who  has  won  and  who  has  lost,  and correspondingly clear why costs usually follow the event.  Upon a claim for compensation for land compulsorily acquired, it is not, generally speaking, appropriate to speak of one party as having won; compensation is awarded to one who had already been given, by statute, the right to receive it.  It is therefore as just to say of the latter sort of case that the claimant ought, in the absence of special circumstances, to receive his reasonable costs of obtaining the compensation that is, ex hypothesi, his due, as it is to say of the former sort of case that prima facie costs follow the event in favour of the party who has won.  But costs are, as always, discretionary, and no hard and fast rule will ever be allowed to occupy part of an area controlled by a discretion, however predictable the result of its exercise may be in certain sorts of cases."

After discussing the provisions of section 36, he continued at page 150:

"Against the history of a wide-ranging discretion given to this Court with respect to costs, I am, I apprehend, to construe s.36 flexibly and not restrictively, to the intent that the special nature of the jurisdiction to which it relates should be duly recognized, and orders made in that jurisdiction that are just and expedient."

In the present case it is clear that if, in the exercise of my discretion, I award costs they must go to the respondent.  However, it is equally clear that whatever may be the situation in other jurisdictions, in cases such as the present, costs do not necessarily follow the event.

In this case the claimants' business was disrupted for a period of some six months as a result of the resumption.  They feel that they are entitled to compensation for loss of profits.  It is only to be expected that they would seek to avoid the harshness of the limitation of such compensation by the principle in Edwards case and try to substantiate a claim which was not so limited.
           Counsel for the claimants informed me that in March 1993 the claimants offered to settle this matter for $18,000 but this was declined by the respondent.  This was not denied by the respondent.  The claimants therefore had to come to Court if they wished to seek compensation at an amount higher than offered by the respondent.  In this they were at least partially successful and received an award of $19,665 plus interest.  In my view, then, it cannot be said that the respondent was unreasonably or unnecessarily forced into litigation.
           Having regard to the circumstances of this case and to the principles established in the Moyses and Florence cases, I feel that this is a case where each of the parties should bear their own costs.  Therefore, in the exercise of my discretion, I make no order as to costs.

J J TRICKETT
  MEMBER OF THE LAND COURT