LGM Enterprises Pty Ltd v Brisbane City Council
[2008] QLC 104
•28 May 2008
LAND COURT OF QUEENSLAND
CITATION: LGM Enterprises Pty Ltd v Brisbane City Council [2008] QLC 0104 PARTIES: LGM Enterprises Pty Ltd
(claimant)v. Brisbane City Council
(respondent)FILE NO: A2007/0820 DIVISION: Land Court of Queensland PROCEEDING: Application for costs. DELIVERED ON: 28 May 2008 DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER: Mr RP Scott ORDER: It is ordered that the claimant pay the respondent's costs of and incidental to the hearing of the proceedings dealing with the preliminary issue. CATCHWORDS: Application for costs – discretion neither qualified nor fettered - matter not close or difficult.
Application for costs – matter not close or difficult – need for senior counsel queried.
APPEARANCES: Mr LG McGinn, Director, appeared for the claimant.
Mr G Evans of Brisbane City Practice, appeared for the respondent.
In reasons published on 16 May 2008 I held that this Court has no jurisdiction to determine compensation with respect to a claim filed by LGM Enterprises Pty Ltd for compensation flowing from a resumption of land under the Acquisition of Land Act 1967. That decision was made following orders of the President that the question of jurisdiction should be dealt with as a preliminary issue.
The respondent has applied for an order for costs whilst LGM resists that application.
The general power of the Land Court to award costs is found in s.34 of the Land Court Act 2000 which relevantly 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.
(3) …
(4) …
(5) The court may, if it considers it appropriate, order the costs to be decided by the appropriate assessing officer of the Supreme Court.
(6) If the court makes an order under subsection (5), the assessing officer may decide the appropriate scale to be used in assessing the costs."
Since this matter does not involve a determination of compensation, s.27(2) of the Acquisition of Land Act relating to costs being assessed for a determination of compensation, does not apply.
In Chief Executive, Department of Main Roads v Regan & Ors [No 2][1] the Land Appeal Court affirmed that the power of the Land Court to award costs under s.34(1) or the Land Appeal Court under the equivalent s.72 of the Land Court Act 2000, is unqualified and unfettered:-
"The power of this Court to award costs is found in Sections 34(1) and 72 of the Land Court Act 2000. Those provisions do not alter the powers which were previously conferred on this Court by s.44(16) of the Land Act 1962 and this Court continues to have an unfettered discretion as to the costs of and incidental to an appeal before it. The general rule is that costs ordinarily follow the event, unless there are special circumstances warranting departure from that general rule.
[1] (2000) 22 QLCR 151 at 152.
The Land Appeal Court used similar language to Regan in Haber v Department of Main Roads:[2]
"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.'"
[2] [2004] QLAC 0102 at [6].
The decisions of the Land Appeal Court in Haber and Regan are consistent, in my view, with decisions of higher authorities on costs provisions in other statutes. In Tamawood Limited v Paans[3] in considering the power of the Consumer and Commercial Tribunal under its powers to award costs under s.71 of the Commercial and Consumer Tribunal Act 2003, Keane JA said:
"[30] First, the Tribunal found that each party was justified in engaging the services of legal representatives to assist them in the conduct and defence of what the Tribunal recognised to be complex proceedings. That finding alone could be, in my view, a sufficient basis to conclude that the interests of justice warranted the exercise of the discretion to award costs in favour of the successful party, at least in the absence of any countervailing consideration. …
[32] If orders for costs were not to be made in favour of successful parties in complex cases, then just claims might not be prosecuted by persons who are unable to manage complex litigation by themselves. Such a state of affairs would truly be contrary to the interests of justice; and an intention to sanction such a state of affairs cannot be attributed to the legislature which established the Tribunal.
[33] … In the absence of countervailing considerations, where a party has reasonably incurred the cost of legal representation, and has been successful before the Tribunal, it could not rationally be said to be in the interests of justice to allow that success to be eroded by requiring that party to bear the costs of the representation which was reasonably necessary to achieve that outcome. …"
[3] [2005] 2 Qd R 101 at [30] [32] and [33].
Even in matters under the Valuation of Land Act 1944 and the Acquisition of Land Act where compensation is determined, recent decisions have emphasised that an award of costs does not depend upon special circumstances being identified or unmeritorious conduct being found to lie in one party.[4]
[4]See PT Limited and Westfield Management Limited v Department of Natural Resources and Mines [2007] QLAC 0121 and Haber v Department of Main Roads [2004] QLAC 0087.
The function of an order for costs is compensatory not that of punishment of the unsuccessful party. That was made clear by McHugh J in Latoudis v Casey[5]
"The rationale of the order is that it is just and reasonable that the party who has caused the other party to incur the costs of litigation should reimburse that party for the liability incurred. The order is not made to punish the unsuccessful party. Its function is compensatory. Thus, in civil proceedings an order may, and usually will, be made even though the unsuccessful party has nearly succeeded or has acted reasonably in commencing the proceedings. It may, and usually will, be made even though the action has failed through no fault of the unsuccessful party. In Cilli v. Abbott[6], Keely, Toohey and Fisher JJ. pointed out that 'the object of costs is not to penalize; it is to indemnify the successful party in regard to expense to which he has been put by reason of legal proceedings': see also Anstee v Jennings[7]"
[5] (1990) 170 CLR 534 at 567. See also Oshlack v Richmond River Council (1988) 193 CLR 72 at 75, 97.
[6] (1981) 53 F.L.R. 108 at p. 111
[7] [1935] U.L.R. 144 at p. 148.
The question considered in the substantive decision in this matter was whether LGM had an estate or interest sufficient to give rise to a right to claim compensation for the resumption of the relevant land.[8] Recent authority on a question of this nature is found in the Court of Appeal decision of Sorrento Medical Services P/L v Chief Executive, Department of Main Roads.[9] Although that authority is not prescriptive in its reasons as to the circumstances sufficient to comprise an estate or interest under s.12(5), sufficient guidance is provided in my opinion as to the manner in which s.36 of the Acts Interpretation Act (1954) should apply. Indeed, I did not find that the case was close or difficult on the evidence that I had, and was able to draw a conclusion in favour of the respondent without a need to resort to a comprehensive weighing up of the evidence. In the circumstances I conclude that an order for costs in favour of the respondent is appropriate, subject to one qualification.
[8] See s.12(5) Acquisition of Land Act.
[9] [2007] 2 Qd R 373.
In view of what I have said in the immediately preceding paragraph I must say that I can see no good reason for the respondent briefing senior counsel to appear in the substantive matter. That is an observation which I think it is appropriate to take into account in the assessment of costs.
It is ordered that the claimant pay the respondent's costs of and incidental to the hearing of the proceedings dealing with the preliminary issue.
RP SCOTT
MEMBER OF THE LAND COURT
2
0