Jacobi v Council of the Shire of Pine Rivers
[2000] QLC 15
•29 March 2000
|
BRISBANE
29 March 2000
Re: Determination of Compensation –
Resumption for water supply purposes.
Acquisition of Land Act 1967 –
Local Government: Pine Rivers Shire Council.
(A99-04).
EC, HE, IC, SA, KM & KC Jacobi
v.
Council of the Shire of Pine Rivers
APPLICATION FOR REHEARING
AND
APPLICATION FOR COSTS
Consequent upon the judgment of the decision on compensation due in the above matter, applications for costs in their favour were received from both the claimant (lodged 26 November 1999), and the respondent (lodged 24 November 1999). The claimant has also provided a statement in reply to the respondent's claim (received 10 December 1999), resisting any costs in the respondent's favour. A similar response was received from the respondent on 10 December 1999. There were no appearances sought on the matter of costs, and the matter of costs was determined on the written submissions exchanged.
The claimants further indicated that consideration was being given to the lodgment of an application for a rehearing, or some alternative application, to obtain the evidence, the lack of which, in the claimants' opinion, has resulted from the conduct of the respondent's case. An application for a rehearing was lodged by the claimant on 10 December 1999. Mr WP Cusack, Solicitor, represented the claimant, and Mr C Hughes of Counsel represented the respondent.
The Law:
Powers for the Land Court to consider a re-hearing of a matter are to be found in section 43 of the Land Act 1962 which provides:
"43. Upon application lodged in the office of the Registrar within twenty-eight days after the pronouncing of any decision of the Court upon any matter wherefrom the Crown or any person aggrieved may appeal, the Court may, if it thinks fit, and upon such terms as it thinks reasonable, grant a rehearing of the matter.
Subject to being lodged within the aforementioned period of twenty-eight days the application may be dealt with thereafter and wherever practicable shall be dealt with by the member who pronounced the decision.
If it grants a rehearing the Court shall appoint a day for rehearing the matter, and shall rehear it accordingly.
An appeal shall lie from the decision on such rehearing in the same manner as if it had been a decision on a first hearing of such matter. "
It is noted that the time for the lodging of an application is mandatory, and applications are strictly constrained in respect of time. In the current matter those provisions have been satisfied by the claimants.
The Application for Rehearing:
2.1The Applications Received –
In seeking an application for rehearing, the claimants' grounds may be summarised as follows:
(i)Due to the unreasonably late delivery of the respondent's valuation and other evidence, which did not meet the Court's direction for the exchange of statements, the claimant was not afforded reasonable time to prepare his response.
(ii)The change in the basis of valuation by the respondent without warning, further disadvantaged the claimants' preparation of the case.
(iii)Belated evidence, not previously disclosed, in respect of a sewer line across the road to the subject land, contradicted previous convictions of the respondent's witness that a pipe could not be laid due to unknown obstructions.
(iv)On production of subsequent drawings for the pumping station, it became clear that a sewerage pipe had in fact been laid across the road. New costs then provided appeared to show unreasonable costs for fill and compaction upon the site.
(v)In spite of Freedom of Information (FOI) requests, no documents were forthcoming which, in the claimants' opinion, demonstrated the extent and nature of previous actions by the public in respect of possible rezoning of the land.
(vi)No documents were disclosed by the respondent which disclosed how the land had been treated in reviews of the Town Plan.
(vii)No documents were disclosed in respect of the actual costs of the pumping station; or costs or estimates in respect of possible reasonable reticulated sewerage connections to the subject land, or alternative sites for the water pumping station.
(viii)No documents were provided in respect of feasibility studies or comparative costs of resuming and building on the subject land or alternative sites, which might support some premium value for the subject land.
(ix)The report of Mr Opanowycz in respect of his costs of rezoning the land to "Special Purposes" has been misunderstood, and its purpose may have misled the Court.
The claimants summarised their application for a rehearing to be approved in order to reconsider the issues of:
(1) The actual costs of reticulated services to the subject land;
(2)The real value of the special value which the subject land may have had to the respondent;
(3)Any variations in the alleged rezoning costs which might affect the resulting value of the land resumed;
(4)An order by the Court directing proper discovery within a stipulated time frame. The claimant to then have the opportunity, after considering any such documents, to disclose whether they would proceed, or not proceed, with a rehearing.
In resisting the application for rehearing the respondent noted as follows:
(1)The application by the claimants is fundamentally flawed in that it ignores section 27(2) of the Acquisition of Land Act.
(2)The quantum of the amounts claimed by the claimant, and that offered by the respondent, compared to the decided value by the Court, demonstrates that the award is nearer to the respondent's figure.
(3)Any speculation or assertions (unsupported by evidence) would not assist the Court in the exercise of its discretion.
(4)The respondent rejects any allegations of impropriety on its part in respect of negotiations between the parties, and the length of the hearing; claiming any delays are more likely due to the failure on the part of the claimants, and their advisers, to fully appreciate the merits of the matter.
(5)The respondent rejects any claims that the late exchange of valuation reports had other than a reasonable explanation; or that there was a turnabout in the respondent's case, when that case was always contained in Mr Woods' report.
(6)The claimants did not seek an adjournment if it was not prepared, and cannot now complain if the running of their case restricted their capacity to fully present their case.
(7)The respondent rejects the analyses of comparative positions of the parties as proposed.
(8) The claimants ignore the findings of the Court in respect of:
(a)The fact that a pump station and rising sewer main would not be approved for high maintenance systems in individual private developments; and
(b)The assessment of the evidence of Mr Denman and Mr Kennedy for the claimants.
(9)There is no basis for any concern that a "conspiracy theory" was demonstrated on the evidence.
2.2 - The History of the Claim
The history of the claim would indicate a strong level of misunderstanding or miscommunication in the matter. It is clear that resolution of the matter has also been hindered by a strong belief from the claimants, that the respondent had been less than forthcoming about its long-term intentions for the subject land. Those mistrusts, and perhaps misconceptions, would appear to have continued right up to only one clear working day prior to the hearing on Monday, 23 August 1999, when the respondent provided its valuation report, 13 days later than the date directed by the Court for the exchange of statements. While any application for an adjournment is always a matter for consideration by either party, it is noted that neither the respondent, nor the claimants, considered the need for an application for an adjournment at that time, in the interests of ensuring any adverse impacts upon the cases of either party. In hindsight, Mr Cusack now concedes that the strategy not to seek an adjournment might have been inadvisable, however he chose to proceed in order to try and have the matter completed.
However the unfortunate lack of communication would appear to have continued right up to the day of the current application for a rehearing on 20 January 2000, with a preview copy of the claimants' affidavit going astray in the electronic (fax) processes of the respondent. As a consequence of that possible misdirection, Mr Hughes was caught slightly unprepared at the opening of the matter. While he formally objected to such a delay in receiving prior notice, Mr Hughes signalled that he would not be seeking an adjournment for that purpose. The mechanisms of the preliminary matters prior to the commencement of this application on a rehearing, are not a matter for consideration. However they demonstrate the relative disparity between the parties.
In summarising the general thrust of the claimants' application, I believe they can be addressed under four principal headings:
(1)Has the due process considered all of the relevant facts?
(2)Was the evidence in respect of the possible rezoning properly understood?
(3)Is there any further relevant information about the actual costs associated with the provision of sewerage which might affect the final costs of rezoning the land?
(4)Are there any further relevant details about alternative sites for the pumping station, which might have an impact upon any demonstrable special value in the land?
2.2.1 - Has the due process considered all of the relevant facts?
Before considering whether there may be some possible miscarriage of justice in the matter so far heard, I look to the request of the claimant for an order for discovery of documents in the interlocutory process procedures, prior to any rehearing, if it be approved. The matter of "discovery" was addressed in the decision of the Land Appeal Court in DRV Cox v. Commissioner of Water Resources [1992-93] 14 QLCR 304.
In that matter the Land Appeal Court found that the Land Court does not have powers on an interlocutory application to order discovery of documents of a party to a proceeding before it, before the hearing of the substantive matter. In the current application for rehearing, I would interpret the directions of Cox to restrain this Court in any request for broad discovery. The only alternative course in such circumstances, if the claimants sought to continue with their search for further information, would appear to be through the normal subpoena processes.
I then turn to the matter of whether the Court has in some way determined the matter per incuriam. Such a situation could only occur where the Court, through want of care, has mistakenly provided its decision in the absence of any relevant authorities or statutes, being drawn to its attention. It is argued by Mr Hughes that there are no grounds for such a conclusion in the current matter, indeed Mr Hughes draws guidance for such a finding in the decision of APM Forests Pty Ltd (1979) 6 QLCR 1. That matter refers to an application for a rehearing on matters concerning rents on special leases, claiming that the decision of the Land Court was made per incuriam. The learned Member rejected the application for the rehearing finding at page 7:
"There was, in my view, sufficient evidence before me in the Land Court hearing upon which to base my decisions, and I cannot hold that such decisions were made per incuriam, nor that the decisions are null, void, and of no effect. "
It is Mr Hughes' view that none of those conditions exist in the current matter. Mr Hughes also sought assistance in Special Lease Nos 21/46317 and 21/46318 (1988-89) 12 QLCR 61, where a lessee sought a rehearing on the question of whether a lessee was liable to forfeiture for failure to comply with the development conditions of the special leases. The learned Member (later President) found that there had been no miscarriage of justice, and refused the application.
In seeking to understand the meaning of the expression of "miscarriage of justice" I find that to mean a failure of justice according to the law. (Wilson v. Wilson [1969] ALR 191, at 200, CA, per Asprey J.)
The meaning may have regard not only to the facts of the matter, but also with regard to the jurisdiction which is involved in the proceedings in question (see Words and Phrases Legally Defined, Volume 3 Third Edition, page 154, Butterworths).
In the current matter I would interpret both the expression "per incuriam" and "miscarriage of justice" to refer to a failure by the Court to consider all the evidence, or the recognised states or precedents in this jurisdiction. On any fair reading of the decision, I believe such a claim cannot be substantiated.
In the matter of whether the late exchange of the valuation report by the respondent, or the apparent change in the valuation basis, may be seen as sufficient grounds to warrant a rehearing, on the grounds that such an event caused some injustice upon the claimant, I note that an appropriate mechanism was available to the claimant during the hearing. Having not exercised the option to seek an adjournment, in my opinion, it is not appropriate to now seek to review any disadvantage that was then within the claimants' control to remedy.
2.2.2 - Was the evidence in respect of the possible rezoning of the land properly exercised?
Mr Cusack argues that the respondent has failed to disclose any documents which might substantiate the claimants' concern, that previous actions by the public in respect of seeking possible rezoning of the subject land were in some way, thwarted by actions of the Council officers. While Mr Cusack believes that some documents must exist which would demonstrate that the Council officers had "influenced" the likelihood of a rezoning of the land, he concedes that Mr Kennedy had been advised that rezoning could be possible. However Mr Cusack now argues that such a response from Council officers reflects only the theoretical aspect of a potential application for rezoning, and not its practical outcome. Mr Cusack further argues that the claimants had been previously advised by Council staff that rezoning of the subject land could not proceed.
To further support his contention that inquirers about the land were resisted by Council officers, Mr Cusack seeks to call evidence from Mr Lloyd, the former owner of the Koala car sales yard. It is now argued that Mr Lloyd had personally been told by Council officers that the site could never be rezoned. However Mr Cusack confirms that it was the decision of the respondent not to call Mr Lloyd to give evidence at the initial hearing, with a view to reducing the costs to the claimant. Mr Cusack agrees that, in hindsight, that was not a wise decision, and now asks to reopen the matter in order to consider what Mr Lloyd has to provide.
In considering the failure to initially call Mr Lloyd, I am led to consider whether that failure may have led to any miscarriage of justice. In that regard I take guidance from Jones v. Dunkel and Another (1959) 101 CLR 298, where Menzies J said in the High Court at page 312:
"In my opinion a proper direction in the circumstances should have made three things clear:
(i)that the absence of the defendant Hegedus as a witness cannot be used to make up any deficiency of evidence;
(ii)that evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence;
(iii)that where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference. "
In that matter the driver of a truck involved in an accident in which another driver in a second vehicle was killed, was not called by the defendant during the hearing, which went in favour of the defendant. The High Court found that the direction by the trial judge was incomplete, and ordered that a new trial should be ordered. The High Court believed that the jury should have been told that any inference favourable to the plaintiff, for which there were grounds in the evidence, might be more confidently drawn, when a person who might be able to assist with the facts of the matter, is not called by the defendant, and there is insufficient explanation of his absence. (Per Kitto J p.308).
The matter of a failure to provide substantive evidence of a policy decision in respect of the use of brick-making materials was also considered in Boral Bricks (Qld) Limited v. Director-General, Department of Main Roads (A97-23), 4 March 1999, to be reported. In that matter the claimant's witnesses argued that the company had changed its former policy about future mining of clay upon the subject land. However those witnesses were unable to document any company policy to that purpose, and there was no attempt by the claimant to call a director of the company to confirm any possible policy change in respect of the mining of the clay.
The Member also noted directions to be found in The Insurance Commissioner v. Joyce [1948] 77 CLR 39, at 49, where Rich J found that it was most probable, and reasonable for the Court to hold, that failure to give evidence by a passenger in a vehicle involved in an accident, could be interpreted to mean that the passenger had accepted responsibility for his actions. The inference in the Boral matter was taken to mean that failure to call further evidence, where proof of a statement was required, may, but not necessarily must, indicate that the uncalled evidence would not have assisted Boral's case (p.46).
In the current matter the failure to call any evidence from Mr Lloyd was entirely the responsibility of the claimant. There is nothing to indicate whether Mr Lloyd's statement would be any more convincing than the evidence of Mr Kennedy. There is also the matter of any potential miscarriage of justice in respect of the respondent, should Mr Cusack be given leave to further expand his evidence through Mr Lloyd. Having already had to respond to the evidence so far led in this matter, why should the respondent be required to now further continue his defence?
On the matter of whether there would be any further documents forthcoming from the Council's records, subject to any further subpoenas, there is nothing to indicate that there would be a positive response to any such subpoenas. Mr Cusack confirms that should any further subpoena provide no further evidence, then he would have to concede on that matter. The response reply by the Council of 18 January 2000, to the further request by Mr Cusack of 24 December 1999, would suggest that the respondent, after a review of its files, has disclosed no further relevant information. On that basis I see little benefit in granting a rehearing on the potential for obtaining further information which might assist the claimants' case in respect of the rezoning.
In any case however, I note that Mr Cusack also agrees that the method finally adopted by the respondent for the valuation is for a hypothetical rezoning of the subject land to a higher use than the former land as "Residential". In that respect any concern whether the respondent was likely, or not, to have agreed with a rezoning of the subject land, has been effectively overcome in the final assessment by the Court in the value of the land lost.
2.2.3 - Is there any further relevant information about the actual costs associated with the provision of sewerage?
Mr Cusack now argues that the Court has had to do the best it could with the hypothetical exercise provided for the possible installation of a sewer line to the subject land, while, in his opinion, the Council had in its records documentation of the actual cost incurred in such an exercise. In order to further explore the practical costs of providing a sewer connection to the subject land, Mr Cusack seeks opportunity to engage an independent engineer to provide further evidence for the claimants.
Before considering whether there may be further information in the Council's records which could be of assistance, there is the matter of the type of sewer connection which may have been approved for a use of the subject land by the claimants. I believe in the context of any increased use of the subject land, as a result of a rezoning, that the provision of sewerage connection would be a requirement of the Council. The evidence supports that Council was most unlikely to approve any type of connection, other than a normal gravity feed service. The fact that the Council subsequently approved a rising main, and local pumping station for the limited use of its own service staff, in my opinion, provides no support for a conclusion that a similar rising main may have been approved for private use. The issues of public health and service maintenance preclude such a conclusion.
That then leaves me with the evidence that more detailed information may exist, as a consequence of the construction of the rising main across the road. The plan of development of the pump station and the attendant service connections, show the intended construction location of the 40mm polythene sewer pipeline from the domestic sewerage pumping station to the sewer manhole across the road. Because of the nature of a rising main, the fluids and solids being transported along that rising main are under pressure, and are less constrained in terms of alignment than the usual gradient fall constraints upon a gravity feedline. Because of that greater alignment freedom, the rising main may have been more easily able to negotiate intervening obstacles, such as other pipes and services. To conclude that the construction of a rising main sewer line, and a gravity feed sewer line, would represent the same construction challenges is not accurate. What we therefore know is that the respondent had actual knowledge of the rising main, but it does not have actual knowledge of what a gravity line would have encountered.
However perhaps the most concerning matter for the claimants is the apparent high allowance provided by Mr Opanowycz in his hypothetical estimate for contingencies, and the quantity of any fill that may have been required in order to ensure a gravity feed line, and associated plumbing on the subject land. In my decision I specifically address those problems, and I see nothing that is likely to be forthcoming from a second engineering opinion, that might change the outcome of the sewer line impact upon the rezoning costs, and the eventual value of the land lost. The claimants' suggestion that costs attributed by the Council are often higher than costs of a private contract, must also allow that the Council would have to approve and supervise work across the roadway.
2.2.4 - Any additional evidence that might support some special value in the subject land?
Key to understanding this matter is whether the respondent saw any special value in the subject land beyond its normal value in the marketplace. Mr Cusack gave some reference to cases where the "special value" principle has been adopted, rather than the normal method of valuing by adopting the highest and best use of the land, and then deducting the costs of rezoning to achieve that highest and best use. However Mr Cusack provides no details of those precedents for consideration.
In considering the matter of "special value" I note that it has been found to refer to the value of land to the owner, rather than the value of land to the resuming authority. (See Pastoral Finance Association Limited v. Minister [1914] AC 1083). The principle to be adopted then is to accept that the owners' use of the land can be taken as illustrating the potential of the land. A dispossessed owner has been taken to be entitled to receive the market value of the land, or its value to him, whichever is the greater. (Woollams v. Minister (1957) 2 LGRA 338, at 343).
The value to the dispossessed owner was also emphasised by the High Court of Australia in The Moreton Club v. The Commonwealth (1948) 77 CLR 253, where Dixon J said at page 257:
"It must, however, be steadily borne in mind that compensation depends upon the value to the owner dispossessed. It is the owner's loss that is to be estimated and that may be done in various ways. 'In cases of compulsory acquisition the value to the owner may, according to the circumstances, be proved in more ways than one, but a very common way is to base it upon, though not necessarily to confine it to, the market price - that is, the price which a willing buyer would give to a willing seller who was desirous of getting rid of the property and had made his preparations accordingly. In cases of compulsory acquisition, however, an owner may be able to show that the value to him is something more than such market price and in such cases he may adopt one of two courses. He may either set out in detail all possible elements making up the value to him, or he may with regard to some incidental expenses and claims give general evidence indicating that a lump sum should be allowed in respect of a number of matters with relation to which it would be difficult or an unnecessary waste of time to go into details.' "
While the above guidance dictates that a "special value" beyond market value may be considered in the matter of compensation, it is also clear that the onus of demonstrating some additional premium for the special value to the dispossessed owner must also occur. A detailed examination of the principles involved in considering "special value" was undertaken in Yates Property Corporation Pty Ltd v. Darling Harbour Authority (1991) 73 LGRA 47, per Handley JA at pages 73 to 79. In that matter the Court of Appeal found that, among others, the award of compensation determined by the lower court should be set aside as the method of assessing "special value" had been an error of law. Handley JA said at page 78:
"In my opinion the trial judge erred in law in disposing of the claim for special value. The matters which he held gave the land special value to the appellant were incapable, without more, of doing so. At best his Honour's reasons are ambiguous but I think the better view is that he misdirected himself by holding that the size and location of the land alone were sufficient in law to establish a case of special value."
In the current matter a key reason that I believe that the claimants saw special value in the subject land, lies in its location and exposure. However it was agreed that the relatively small size of the subject land mitigated against its higher use for some purposes. That was also demonstrated by the decision of Cain and Another v. Pine Rivers Shire Council (1975) 33 LGRA 150, where Mylne J said at page 155:
"Having regard to the size of the site, and its inadequacy even for the proposed use, the possible uses that may be conducted thereon without the consent of the Council, the impossibility of amalgamation with other heavy industry sites because of its isolation and the proximity of dwelling-houses I am of the opinion that the site should not be rezoned to heavy industry. "
On the evidence provided I accept that the claimants would have seen some "special value" attached to the site, but the test of the reality of that higher expectation can only be measured in terms of whether that expectation was based on facts. The history of the attempts to sell the site demonstrate a certain level of over-expectation on the part of the claimants. The claimants had also not sought, in recent times, to use the site for any special purpose for themselves, relying merely upon the anticipation of a sale of the land. That suggests that the value to the claimants lay in what they might recover from its disposal to some other potential user. On that basis, I see little support for some "special value" beyond its market value.
I turn then to the alternative two sites that were contemplated by the respondent for use as a pumping station. In the absence of any evidence to the contrary, I must accept that the resumption values of either of those two alternative sites would represent their value to their respective owners in the marketplace. As noted in my decision, I have no idea of the quantum of those properties, but it is fair to assume that the respondent weighed the relative costs of acquiring any of the three sites in its conclusions. That they chose the subject land was likely to have indicated, in my opinion, that the overall costs of so doing, were to the advantage of the project to build the pumping site. I see no purpose in seeking to further explore the commercial conclusions of the respondent in that matter.
Summary:
In summarising the application for a rehearing, I am not convinced that there is sufficient evidence to demonstrate that justice has not occurred, based upon the evidence. To agree to continue to seek further evidence, not previously considered, would, in my opinion, be not justified. I accordingly reject the application for a rehearing of the matter.
The Applications for Costs -
In considering the history of the claim I note that the claimants filed a claim for compensation on 25 January 1999 for an amount of $141,000, including disturbance of $6,000. During the hearing, which commenced on 23 August 1999, the claimants amended their claim to $127,500 (including agreed disturbance of $8,500). At the beginning of the hearing the parties agreed on the loss of improvements (dwelling at $4,000), leaving the outstanding claim for loss of the land at $115,000 (claimants) and $75,000 (the respondent).
The Court determined compensation for the loss of the land at $90,000, plus the $4,000 (agreed for the dwelling), and $8,500 (agreed disturbance), or a total compensation due at $102,500. The final determined compensation was $94,000 for land and improvements, plus agreed disturbance of $8,500. The midpoint between the amount claimed for the land and improvements was $99,000, which is nearer to the amount offered by the respondent, than the final amount claimed by the claimant. Similarly, if disturbance is included, the final determination at $107,500, is nearer to the respondent's figure.
3.1 The Legislation -
The general powers of this Court in respect of the awarding of costs are to be found in the provisions of section 41(9) of the Land Act 1962 which states:
"The Court may make such order as it thinks fit as to the costs of or incidental to any matter that it has jurisdiction to hear and determine including, without limiting the generality of this subsection, the costs of an adjournment or application made in a pending matter, allowances to witnesses attending for the purpose of giving evidence at the hearing and the costs of any survey of boundaries."
Any costs are further directed under section 27 of the Acquisition of Land Act1967 which states:
"27. 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.
(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. "
In seeking guidance in respect of exercising my discretion in this matter, I note that the powers vested in the Land Court in respect of the awarding of costs, are established entirely by legislation, but they are also fully or completely discretionary in nature. However, it has been held that in exercising that discretion this Court must do so in a judicially sound manner, and by reference to relevant considerations. In this regard I note the findings of the Land Appeal Court in Townsville City Council v. Moyses and Morris etc (1979) 6 QLCR 271, where the Land Appeal Court said at page 273:
"The general rule, then, is that costs are in the discretion of the Court, but of course the discretion must be exercised judicially, that is, by reference to relevant considerations. "
The general power to award costs was considered by the Full Court of the Supreme Court of Queensland in Wyatt v. Albert Shire Council [1987] 1 Qd.R. 486. The Full Court also considered the scope of a section of legislation which gave the Local Government Court power to "make such order as it thinks fit as to the costs of any proceeding before it", which it saw as essentially the same as the power conferred upon the Land Court, and which was described by the Full Court as "complete". (page 488).
I am also directed to the need to examine the reasonableness of the conduct of the parties in deciding whether or not to award costs in this matter. In that respect I note the findings of the Land Appeal Court in Moyses (supra), where the Land Appeal Court followed guidance outlined in Middleton v. Freirer and Others (1958) Qd.R. 351, where Philp J, speaking for the Full Court, said at page 357:
"… where an unfettered discretion is given by statute or a rule no court can by its decision impose conditions upon the free exercise of that discretion by another court ---"
However, the Land Appeal Court in Moyses (supra) went on to explain the nature of the judicial decision at page 274:
"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. "
I am also drawn to the general guidance on the awarding of costs as outlined by the Land Appeal Court in Yalgan Investments Pty Ltd v. Council of the Shire of Albert [1997-1998] 17 QLCR 401, at pages 406 to 408; and followed by the learned Member in Edgarange v. Council of the Shire of Redland (A95-49), 12 December 1997, unreported.
3.2 The Respondent's Application -
The respondent argues that its conduct throughout the matter has not in any way disqualified the respondent from being able to rely upon the normal course of such matters where costs follow the events. However it further argues that, in its opinion, the conduct of the claimants has been such as to unnecessarily and unreasonably extend the hearing, such that the respondent should now be awarded partial costs in respect of part of the total hearing time of four days. The respondent seeks an order for the claimants to pay the taxed costs of two days, which it believes were unnecessary in the normal course of the evidence.
In response to the application for costs by the respondent, the claimants refute any claims that the claimants' actions have prolonged the matter, although Mr Cusack agrees that if any blame for delays is to be levelled, then it should be attributed to both parties. The claimants further argue that the amount claimed by the respondent was in fact $75,000, which excluded the dwelling (see Mr Wood's report), and until the exchange of documents, the respondent's valuation was only $60,000. The claimants further argue that the midpoint should really be $101,500, which, in their opinion, is nearer to the amount adopted by the claimants.
The claimants also challenged the inference that their valuer Mr Denman concurred in the proposed rezoning comparisons, prior to the hearing. It is their argument that was never the case, and that the early discussions between the parties never achieved any compromise, due to the diverging approaches being taken by each party. The claimants seek support for their application, in their opinion, in the confusion that has led to a concern by the claimants that there had been some conspiracy to disenfranchise the owners of the land.
In respect of the claim by the claimants that the respondent's position was not stated, I note that it is the final position taken by the respondent in such matters which is relevant. (Commissioner for Railways v. Buckler (1996) 1 Qd.R.18) per McPherson JA at page 23:
"Stated in general terms, what the court is now required to do in fixing the incidence of costs under this rule is look to the final positions taken up by the parties. In the case of the claimant, it is the quantum of compensation last claimed. Theoretically at least, its amount might not be known until the final address of counsel for the claimant. In practice, however, section 24(2A) furnishes a disincentive against conduct like that. It does so by restricting the right to amend a claim once it has been filed in accordance with section 24(2A) of the Act. Thereafter an amendment may be allowed; but on terms including payment of costs: see section 24(3).
On the other hand, there seems to be no comparable restriction preventing the constructing authority from deferring disclosure of its final position until a late stage of the proceedings. It will be discoverable only from "the amount of the valuation finally put in evidence by the constructing authority", which means that it cannot with confidence be known what the amount of it is until the constructing authority closes its case. "
In the current matter I note Mr Cusack's argument that Mr Wood for the respondent agreed for a market value of $75,000 for the subject property at the date of resumption (Exhibit 13). That amount was estimated on the basis of the land being rezoned for "Commercial/Service Industry" purposes, and made no allowance for the existing dwelling, which would have needed to be removed from the site. However, subsequently during the hearing, the respondent agreed to a nominal value of $4,000 for the dwelling, presumably its value for relocation purposes. Accepting that it is the respondent's final position that must be considered in determining costs, I believe the respondent argues that the value of the land lost was $75,000, in addition to which it allowed a further $4,000 for the dwelling. On that basis I would agree with Mr Hughes' determination of the midpoint between the parties, and the amount determined by the Court is nearer to the figure proposed by the respondent.
The matter of whether a party has won or lost in a compensation matter was discussed in Minister for the Environment v. Florence (1980-81) 45 LGRA 127, where Wells J said at page 149:"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. "
On the evidence before me, I believe fundamental to the difference between the parties, and how they conducted their case at the hearing, is the obvious breakdown in confidence by the claimants that the respondent has been fully frank in its approach to the matter. The request to rehear some additional evidence, now refused, bears testimony to the depth of those concerns. In my opinion, there is nothing to suggest that the respondent has been other than professional in its approach, and I find no reason to conclude that it should not be awarded any benefit of the outcome on the basis of that reason.
However, because of the contentious nature of the background of the appeal, I believe it would have been inevitable for the parties to have to seek final resolution by the Court, as only by that process, in my opinion, could all of the aspects be fully examined. That the respondent was unable to exchange its valuation report until just prior to the hearing, has already been noted. While the response by the claimant to that late exchange of reports, lay with the claimants, and was not seen to justify a rehearing, it does, in my opinion, constitute some special circumstances for consideration in the matter of costs.
I also believe that any confusion to the claimants, about whether the correct approach to the valuation was by a hypothetical rezoning assessment, lends some support for some special consideration of costs. The conceded change of approach by Mr Opanowycz in respect of the most likely method of providing sewerage connection to the subject land, further contributes, in my opinion, to the special nature of the events.
3.3 The Claimants' Application -
The claimants argue that section 27 of the Acquisition of Land Act is not mandatory, and provides discretion for the courts. In line with those directions the claimants seek assistance for an award of partial costs in the decision of Yalgan Investments Pty Ltd v. Council of the Shire of Albert [1999] QSC 75, 15 April 1999, per Byrne J. In that matter, which was a review of the decision of the taxing officer of the Supreme Court of costs involved in the decision of the Land Appeal Court on that matter, Byrne J examined the decisions of both the Land Court and the Land Appeal Court. He particularly noted the Land Appeal Court's decision to award partial costs for a period of only three (3) days of the total six (6) days of the appeal in the Land Court; and reported in the Land Appeal Court decision of Yalgan (A94-94), 11 December 1997, unreported, at page 15. The Land Appeal Court noted that, while the amount awarded was nearer to that claim by the claimant, the evidence of the respondent was preferred on most factual issues.
Much of the decision of Byrne J was involved in an understanding of the inference as to whether the costs awarded to the actual duration period of the "hearing", during which the Court sat to adjudicate upon the claim, or the longer period involving the preparation expenses incurred, after the proceedings were instituted, but before the first day of the hearing. Byrne J found that the "expenses incurred in compiling a report tendered as the evidence in chief of an expert witness is, in my opinion, part of the cost of 'the hearing'." The principle of Yalgan in the current matter is that the discretion to award partial costs of a matter is supported by a superior court, and includes the preparation of witness statements.
The claimants also argue that the actions of the respondent left something to be desired, in that the initial exchange of documents was not delivered until well after the date agreed in the directions of the Court. There also appears to be a change of directions by the respondent in its approach to the valuation by a rezoning process; the belated advice that a sewer pipe did now actually exist across the road from the new pumping station; and the belated need for the claimants to call expert evidence to refute the respondent's claims in their change of approach. (Mr Barker and Mr Benzie).
The claimants in summary apply for all preparation costs (many of which were subsequently thrown away because of the change of approach by the respondent). The claimants further applied for costs associated with two (2) days of the hearing, which they argue were an unnecessary burden, precipitated by the actions of the respondent. The above application is pursued in view of the special circumstances of the matter, and how it was proceeded with by the respondent.
To support their application for costs, the claimants seek to argue that the agreement to accept the nominal value of $4,000 for the dwelling, was excluded from the final position adopted by the respondent in Mr Wood's valuation. However, as already noted, it is the final position adopted by the parties in the hearing, which is the key parameter for consideration. The respondent made its offer during the hearing to include an offer of $4,000 for the dwelling, and I accept Mr Hughes calculation of the midpoint for determination of costs, if relevant in this issue.
The claimants also finally seek support for an award of costs in their favour, in the decision of the Court to award interest on the outstanding compensation due to the claimants in the current matter. However, the awarding of interest in a matter of compensation is a direction of the legislation, but subject to the discretion of the Court. Section 28(1) of the Acquisition of Land Act provides that direction, but notes that the Court "may" order the interest be paid. The exercise of that discretion by the Court "is to compensate the landowner for waiting for the award to be paid. It compensates him or her for the period when he or she is due to receive the compensation for the loss of the land and when he or she is actually paid. It acts as a spur upon the authority to make payment of compensation without undue delay." (See Land Acquisition, 4th Edition, by D Brown (1996), page 158).
The interest awarded of course is calculated as simple interest, and not compound interest. That was found in South Australian Land Commission v. Perry (1977) 37 LGRA 25, where Jacobs J said at page 28:
"The fund that carries interest is, the amount by which the compensation, as agreed or determined, exceeds the original offer. It is that amount which is to be increased by interest, not that amount plus accretions of periodic interest."
The interest awarded in compensation matters is not awarded by way of punishment, and I see no further support for the claimants' application for that reason in the matter of costs.
Summary:
In summarising the evidence I find that there are mitigating influences from both parties, which lead me to the conclusion of special circumstances to be considered in exercising my discretion to award costs in this matter. In the end I find that those special circumstances, contributed to by both parties, lead me to the conclusion that there is no case for the awarding of costs to either party in this matter. I therefore direct that each party should bear its own costs associated with the preparation of their cases, the hearing of the matter, and the subsequent application for a rehearing.
Member of the Land Court
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