Marshall v Department of Transport
[2004] QLC 44
•27 May 2004
LAND COURT OF QUEENSLAND
CITATION: Marshall v Department of Transport [2004] QLC 0044 PARTIES: Melville Robert Marshall
(Claimant)v. Director-General, Department of Transport
(respondent)FILE NO: A1992/0077 DIVISION: Land Court of Queensland PROCEEDING: Applications for Costs and the Award of Interest DELIVERED ON: 27 May 2004 DELIVERED AT: Brisbane HEARD BY: Written submissions MEMBER Mr RP Scott ORDERS: I order that the respondent pay the claimant Sixty-five Thousand Dollars ($65,000) being compensation with respect to the claim for injurious affection.
I order that the respondent pay the claimant interest at the rate of 10% per annum on the sum of $65,000 from 1 February 1986 up to and including 1 March 1993; then on this amount from 26 August 1996 up to and including the date upon which final payment of compensation is made.
I order that the claimant pay to the respondent 80% of the costs of and incidental to the hearing and determination of the claim for compensation for injurious affection, excepting for costs of the hearing dates of 15 and 16 April 2002 and 22 July 2002. The amount of such costs shall 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 - Respondent substantially successful on quantum and issues - Claimant prolonged hearing - Claimant awarded compensation - Respondent sought an order of nil compensation - Incomplete disclosure - Costs discounted
Practice and Procedure - Claimant dilatory - Period of interest abated - No abatement of interest rate
SOLICITORS: James Conomos for the claimant
Crown Solicitor, Crown Law for the respondent
In reasons published on 27 February 2004 (the decision on remittal) in which compensation in the amount of $65,000 for injurious affection was determined in favour of the claimant, I invited the parties to make submissions on the issues of interest and costs.
Costs
The claimant's claim for compensation under all heads was in the amount of $1,253,904.24 or, alternatively, $1,143,926.24.
In the decision at the conclusion of the "original hearing" (reported as Marshall v Director-General, Department of Transport (1998) 19 QLCR 9) compensation was determined in the amount of $348,446 under all heads, excluding injurious affection. The determination primarily comprised a figure of $300,070 for the "loss of efficacy" of sound land on the eastern boundary of the subject land, whilst the balance comprised:
1.Value of land taken $31,000
2.Loss of "monies" thrown away $5,280
3.Site office $8,850
4.Legal and valuation fees $3,246
The value of land taken was based on the valuation of Mr Slater, called by the respondent. The parties agreed on the site office value and legal and valuation fees.
The respondent effectively contended for compensation in the amount of $43,096.
The claimant, whilst claiming $651,325 for injurious affection, received no compensation under that heading as the Court applied the then state of the law as expressed in a frequently referred-to authority: Edwards v Minister of Transport [1964] 2 QB 134.
The law was changed by the decision of the High Court in Marshall v Director-General, Department of Transport (2001) 205 CLR 603. Following that decision the High Court remitted the matter back to the Land Appeal Court to be dealt with in accordance with law. The Land Appeal Court ordered that the issue of the determination of compensation due to injurious affection be remitted to me to be heard and decided "with such further evidence" as I might allow.
In contrast to the figure claimed by the claimant, the respondent's primary position was that compensation for injurious affection should be assessed at nil. Other valuation alternatives were also put forward by the respondent, however they could be described as nothing more than "fallback" positions. Certainly there was no evidence of any offer of compensation for injurious affection having been made to the claimant.
Compensation as finally assessed by this Court is in the sum of $413,446 being that awarded at first instance, together with compensation awarded for injurious affection following the remittal hearing.
A general power to award costs vests in the Land Court pursuant to s.34(1) of the Land Court Act 2000. However, in cases involving the determination of compensation under the Acquisition of Land Act 1967 (the AOL Act) the general discretion is limited by the operation of s.27(1) and (2):
"(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."
Having regard to the figures set out in [2] to [5]above and the operation of s.27(2) of the AOLAct, the effective midpoint figure, based on the higher figure sought by the claimant, is $648,500. Accordingly, it is open to the respondent only to seek costs. Such an application was forthcoming and was resisted by the claimant.
In its reply to the claimant's submission on the question of costs, the respondent included submissions that were not, in the claimant's view, appropriate for inclusion. The parties left it to me to deal with that question. I have done so and have considered those submissions that are appropriate on the basis that replies should be limited to questions of law and to "the correction of misstatements of facts" (per Callinan J, John Fairfax Publications v Rivkin (2003) 77 ALJR 1657 at [215]).
Cases which have exposed the principles relating to the exercise of the discretion under s.27 of the Acquisition of Land Act include:
Moyses & Ors v. Townsville City Council (1979) 6 QLCR 271 (Moyses);
Minister for the Environment v. Florence (1980-81) 45 LGRA 127 (Florence);
Banno and Another v. Commonwealth of Australia (1993) 81 LGERA 34
(Banno)
Commissioner for Railways v. Buckler [1996] 1 QdR 18 (Buckler); and
Wyatt v. Albert Shire Council [1987] 1 QdR 486 (Wyatt).
A summary of those principles is to be found in Yalgan Investments Pty Ltd v. Council of the Shire of Albert (1997-98) 17 QLCR 401. The following quotation is taken from pp.407-408 of the Land Appeal Court judgment:
"(h) In general, a party who is wholly successful in litigation can expect an order for costs in his favour. Where compensation is awarded to one who had already been given, by statute, the right to receive it, it is just to say 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. But costs are discretionary and no hard and fast rules 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. In some cases, the Land Court may consider that there are sufficient reasons for departing from the general rule (Moyses at p. 278, Florence at pp. 149-50).
(i) Although the exercise of the power does not exclude resort to the 'settled practice' of a court where such a practice has evolved, a purported exercise of discretion which fails because the mind is closed to relevant considerations through a rigid adherence to preconceptions involves an error of law that is open to correction on appeal (Wyatt at p. 489).
(j) Section 27(2) of the Acquisition of Land Act 1967 should not be regarded as a legislative suggestion that, where the claim is substantially more than the amount awarded, and the amount put in evidence by the constructing 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 (Moyses at p. 274).
(k) Where the Land Court is considering whether it should award costs to a constructing 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. Usually it would be more relevant to enquire whether the conduct of the claimant (such as, for example, making an exorbitant claim) has been such as to force the authority, unreasonably and unnecessarily, into litigation (Moyses at p. 274) or whether the claimant has pursued a vexatious, dishonest or grossly exaggerated claim or presented his case in such a way as to impose unnecessary burdens on the constructing authority or the Court (Banno at p. 53)."
The respondent placed particular emphasis on para (k) from Yalgan. Reference was also made to Commissioner for Railways v Buckler (1994) 15 QLCR 262 where Justice of Appeal McPherson at 268-270 identified that the general rule that "costs follow the event" should not be applied in an unqualified way and that s.27(2) of the AOL Act (and its predecessors) was a legislative device enacted "with a view to encouraging early settlements and discouraging exorbitant claims in compensation cases".
In submissions the claimant, apparently in reliance on Florence, said that one of the questions to be considered by the Court is whether there are special circumstances justifying an award of costs against the claimant.
That seems to me to be a wrong application of what was said in Florence and I can find no statement in the other authorities referred to which supports the submission by the claimant. Florence is concerned with the question of whether a claimant, not a constructing authority, should receive an order for costs.
I would summarise the submissions of the respondent in support of its application as falling under four headings:
1.The claimant's limited success as to quantum.
2.The respondent's success on issues in dispute.
3.The claimant's conduct in prolonging the hearing time.
4.The claimant's conduct in making litigation on the issue of flooding unavoidable.
The claimant addressed each of these issues in its submissions and raised another:
5. Incomplete disclosure by the respondent.
Quantum
The contest between the parties on the issue of quantum of injurious affection compensation is severable from the other elements of compensation dealt with in the original hearing.
In respect of this issue the respondent was clearly successful and to such an extent that it might reasonably expect a costs order in its favour.
Respondent's Success on Issues
In its submissions the respondent referred to a number of issues in relation to the question of the flood impact on the claimant's land caused by the constructing authority's works. It submitted that it was effectively successful in those issues where they conflicted with the evidence from the claimant's side.
I need not list these issues as the correctness of the submission is both apparent from a reading of the published reasons and from the fact that the claimant has not in its response submissions sought to submit to the contrary.
Claimant Prolonged Hearing
It was submitted further by the respondent that when the costs of the remittal hearing are being considered the Court should take into account the evidence and Court time associated with and concerning the extent of afflux, both in the original and the remittal hearings. It is not intended by this submission, as I understand it, that costs be aggregated, but that the fact of the evidence from the claimant on the matter of afflux at the original hearing be a consideration in the present application. I accept that submission.
Evidence was heard over 20 days at the original hearing, about half of that being concerned with the evidence of engineers expert in the topics of hydraulics and hydrology - in simple words, flooding. There were two days for submissions.
There were also two days for submissions at the remittal hearing and 29 days of evidence, though two of those days (15 and 16 April 2002) were concerned with the disclosure issue discussed below and one (22 July 2002) with that issue and associated procedural issues.
That brings the evidence down to 26 days. Mr Slater's evidence occupied about half a day and that of Mr Kinivan, valuer for the claimant, less than half a day. The balance was all to do with the flooding issue, as I call it. That is, it took longer at the remittal than at the original hearing in spite of the fact that the parties reached common ground on the matter of hydrology and confined the dispute to that of hydraulics.
In his valuation evidence Mr Kinivan appears to have ignored or misunderstood the findings of fact made in the original decision in respect to the relevant land's tourism potential. Time was therefore wasted in dealing with his evidence, though it took less than half a day overall, as I have said. The evidence of Mr Kinivan was, however, useful in introducing the use of a profit and risk allowance which was accepted in principle by Mr Slater.
That any evidence at all on the issue of flooding was heard at the remittal arose out of an application from the claimant.
Subsequent to the decision of the High Court, the respondent took the position before the Land Appeal Court that the issue of injurious affection should be remitted back to the Land Court for determination on the flooding evidence already before the Court.
The solicitors for the claimant adopted the view, however, that the issue should be determined on the "best evidence available", that being the WBM Oceanics Flood Study of 1999.
Following a directions hearing on 22 August 2001 and bearing in mind that the remittal was on the basis that further evidence might be allowed, orders were made including the disclosure of the WBM Oceanics Flood Study, as well as directions as to the exchange of expert reports.
On the basis of this chronology the respondent submitted that it is clear that the attitude of the claimant had a significant bearing on the conduct of the remittal hearing including the need to revisit the hydraulic flood study modelling and associated issues.
That is clearly correct, however it needs to be borne in mind that in the original hearing not only did the respondent lead evidence to a lower level of afflux on the claimant's land than it did in the remittal, but it contended that levee banks constructed by the claimant were a substantial cause of that increased afflux. It was also the respondent's position at the original hearing and again at the remittal that compensation should be determined in a nil amount. I return to this issue below. The hydraulic expert for the claimant, however, virtually maintained his earlier opinion on the question of afflux - at least at the outset of the hearing.
The respondent submitted that in circumstances where the level of afflux predicted by the experts for the respondent increased, had injurious affection been determined by the Court on the evidence it had before it at first instance, it is difficult to conceive that a higher level of compensation with respect to injurious affection would have been awarded.
Whilst I acknowledge the difficulty alluded to by the respondent, I cannot say what the injurious affection compensation would have been at first instance had such a determination been made. Indeed, I think it a matter of pointless conjecture.
The respondent sheets home to the claimant responsibility for there being any hydraulic evidence in the remittal hearing. The respondent did, however, concede during pre-trial procedures that the WBM Oceanics Flood Study was the best evidence available.
The directions made on 22 August 2001 accepted the claimant's submission that the parties should be allowed to provide further flooding evidence. The remittal was set down from 8 April 2002 for a total of 10 days including time for submissions. Directions about disclosure were included.
Disclosure by the respondent was extensive and was required to be completed well prior to the delivery of the expert reports for the claimant. On Friday, 12 April 2002, at the conclusion of the first week of hearing, it was discovered that the respondent had not afforded the claimant complete disclosure. Two videos showing the operation of a physical flood model were disclosed on that day.
At the hearing on 16 April during the following week the respondent conceded that a WBM file and three additional videos had been discovered on the previous day. Disclosure of these documents ensued.
The respondent conceded that the claimant's flooding expert was entitled to a reasonable opportunity to consider the disclosed material and on 16 April the hearing was adjourned and further directions were made as to the conduct of the matter, including further disclosure.
Also on 16 April 2002 an expert report from Mr McAnany, an engineer who focused on issues of filling costs, was produced to the claimant. Whilst that report ought to have been provided earlier, I do not accept that the claimant would have suffered any substantial prejudice flowing from the late supply of that report. On 16 April 2002 the hearing was adjourned to 22 July 2002.
Further disclosure from the respondent took place on 30 April 2002, 20 May 2002, on two occasions during June and on another two occasions during July.
Such impact as there was on the case resulting from incomplete disclosure is dealt with below under heading No. 5.
The following quotation is taken from of the reasons of 27 February 2004:
"[145] If I put aside for the moment Mr Winders' revised figure, there is a what I would describe as a very high level of consistency between the predictions of changes in afflux in the three nominated locations for the events identified and for which both parties presented figures, that is the 1983, 1992 and Q100_77. There was evidence from Mr Russell that the results of modelling could be said to be acceptable if within a tolerance of plus or minus 200 mm. A perusal of the table in para.[141] indicates that on that standard the affluxes calculated by each of the experts which are able to be compared are prima facie acceptable putting aside Mr Winders' recalibration."
Submissions for the claimant referred me also to the oral evidence of Mr Symes (flooding expert for the respondent), who referred in cross-examination on 2 August 2002 to certain relevant modelling carried out by himself on the one hand and Mr Winders (flooding expert for the claimant), on the other. He observed that the modelling revealed a difference between them of 6 centimetres only of increased afflux. He described that difference as being "… very much in the ballpark in terms of what you would expect in an exercise such as this."
The claimant's submission is that the respondent could have, based on this opinion, conceded the degree of afflux at the commencement of the remittal hearing.
The same could, of course, have been said of the claimant on the advice of Mr Winders.
I note that it was the respondent who changed its position somewhat on this issue. Not only did it concede a higher afflux than it had suggested at the original hearing, but it did not persist with the argument that placed responsibility on the claimant's levees for the increase in afflux. It effectively conceded, in my view, that its works caused such increase in afflux as its experts advised.
However, the levee aspect occupied no trial time during the remittal and the respective views as to afflux was known to both sides early in proceedings. They had settled the issue of hydrology but, for reasons not clear to me, failed to settle the issue of afflux and then concentrate on the matter of compensation.
Both parties therefore bear responsibility, in my view, for a failure to adopt an agreed position at the outset on this issue.
The claimant, however, is responsible for two other matters that impacted substantially on prolongation of the trial.
The first of these was Mr Winders' recalibration based on the 1999 flood - an event he had earlier rejected as being suitable for modelling purposes. This recalibration produced an increased estimate of afflux for the 1983 event and, therefore, comprised a significant departure from the relative similarity in the afflux predictions made by the corresponding experts at the outset of the hearing.
The second was Mr Winders' initial criticism of the respondent's physical modelling - though he later withdrew or resiled from most of his criticisms and sought to rely on some aspects of the physical modelling evidence as supporting his opinions.
The respondent sought to respond to each of these issues by calling its own witnesses. The trial was correspondingly prolonged.
Litigation made unavoidable
I accept the submission for the respondent that the amount of injurious affection compensation contended for by the claimant was grossly exaggerated or exorbitant.
I cannot conclude, however, that the amount of the claim and the conduct of the claimant discussed thus far was such that litigation on this issue was unavoidable.
Certainly it would be expected that a respondent faced with such a claim would be prepared to contest it but, equally, a claimant faced with a nil assessment of compensation from the respondent would be expected to seek just compensation in Court. The extent of the evidence adduced is quite another matter.
I think it relevant to take into account under this heading that, contrary to the primary submission of the respondent, the claimant did receive an award of compensation.
Incomplete Disclosure
It was submitted for the claimant that when the hearing was adjourned on 16 April 2002 the respondent was at a considerable advantage in that Mr Winders had given evidence without the benefit of all documents in the hands of the respondent's experts, many of whom were present during his evidence.
If such an advantage existed, it was not one that seems to me to have been capitalised on by the respondent, nor one that had a dampening effect on Mr Winders' evidence.
The claimant submits that the incomplete and incremental disclosure of the respondent disadvantaged him and prejudiced the management and organization of his case.
The claimant asserts that it was grossly prejudiced by the conduct of the respondent in his preparation of the hearing of 8 April 2002 and 22 July 2002.
The claimant has not referred to evidence in support of its claim of prejudice.
In a letter dated 11 July 2002 the respondent said:
"My client acknowledges, and regrets, that certain documents have been overlooked in the course of making disclosure including further disclosure) in these proceedings and the inconvenience which has resulted to your client and its expert (and also to my client's experts). The primary reason for these difficulties has been the fact that many divisions of my client's department have been involved in the highway duplication exercise, thereby compounding the difficulties experienced in identifying and locating all relevant documents."
Rule 4 of the Land Court Rules 2000 provides:
" 4.(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.
(2) For subrule (1), an originating application under these rules is to be treated as if it were a claim under the uniform rules."
In addition Rule 13 says:
" 13. Chapter 7 of the uniform rules applies, with necessary changes, to the disclosure of documents in relation to a proceeding in the court."
Rule 225 of the Uniform Civil Procedure Rules 1999 deals with the question of incomplete disclosure:
"225 Consequences of non disclosure
(1) If a party does not disclose a document under this part, the party -
(a)must not tender the document, or adduce evidence of its contents, at the trial without the court's leave; and
(b)is liable to contempt for not disclosing the document; and
(c)may be ordered to pay the costs or a part of the costs of the proceeding.
(2) If a document is not disclosed to a party under this part, the party may apply on notice to the court for -
(a)an order staying or dismissing all or part of the proceeding; or
(b)a judgment or other order against the party required to disclose the document; or
(c)an order that the document be disclosed in the way and within the time stated in the order.
(3) The court may, in an order under subrule (2)(c), specify consequences for failing to comply with the order."
No application has been made by the claimant pursuant to Rule 225(1)(c), nor did I hear argument as to the relationship between that rule and s.27 AOL Act.
The deficiencies in the respondent's disclosure are such, however, that any costs awarded to it ought not at the least include the costs thrown away with respect to 15 and 16 April 2002 and 22 July 2002.
Beyond that, it would be difficult for the claimant to particularise its prejudice such that it could be reduced to precision. I would make a general observation, however, that relevant evidence of the claimant in response to the disclosed material could have been better structured and more succinctly put had disclosure been completed as ordered.
Accordingly, I think that any costs order in favour of the respondent ought to be discounted to take that conclusion into account as best I can. I stress that this discount is not based on any intention to penalise the respondent.
The claimant submitted that it ought not be criticised for the conduct of its case against the background of incomplete disclosure by the respondent. I have dealt with that submission to the extent that I think it is appropriate. It is clearly not the case that the prolongation of the trial for the reasons discussed under heading 3 above was attributable to the deficiencies in the respondent's disclosure.
Conclusion
Not only was the claimant unsuccessful on a large number of issues, he, particularly through Mr Winders, pursued almost as a reflex action points that appeared to favour him - points that were either dropped in due course (the use of the 1999 flood, the usefulness of physical modelling), or that were without merit, (the 1999 recalibration, the tender of a set of computer-generated plans intended to show "before" flood immunity). "Such conduct will constitute a consideration relevant to the ordering of costs …" (per Kirby J in Oshlack v Richmond River Council (1998) 193 CLR 72 at 122).
I think in the circumstances of this case that what Debelle J said in Young v District Council of Gumeracha (No. 2) SCGRG 93/189, 28 November 1995, is particularly appropriate:
"Whilst it is true to say, as Wells J did in Minister for Environment v Florence, that it is not, generally speaking, appropriate to speak of one party as having won, in this case, it is clear that the Council has succeeded on most of the issues which were raised in the course of this acquisition. It had to answer what was a very substantial claim made against it. There must be some reflection of that fact in any award of costs."
In the result, I conclude that the respondent ought to receive the benefit of an order for costs, but that for the reasons given such order should be discounted. Yalgan is authority for the Land Court making a partial order for costs in compensation matters. My view is that such an award is particularly appropriate in a case where costs are to be awarded against a claimant and where there are grounds for making such an order. The discount should not be so substantial that it fails to recognise the defects that I have identified in the conduct of the claimant's case, but it should recognise the need for the claimant to have come to Court to obtain compensation. I will settle on a discount of 20% as satisfying these considerations.
The order is, therefore, that the claimant pay 80% of the respondent's costs in the hearing of the claim for injurious affection compensation except for the days of 15 and 16 April and 22 July 2002.
Interest
Section 28 of the Acquisition of Land Act gives to the Court a discretion to award interest on any compensation determined in accordance with the Act. Interest may not, however, be payable "in respect of any amount of compensation advanced under Section 23" (s.28(2)).
In the original decision of the Land Court it was held that interest otherwise payable should be abated on the basis that the claimant had been dilatory in pursuing his claim. The period of abatement was between 1 March 1993 and 26 August 1996. The order of the Court was:
" I order that the respondent pay the claimant interest at the rate of 10.5% per annum as follows -
On the sum of $345,200 (that is all heads compensation award of $348,446 less $3,246 for legal and valuation fees in respect of which there is no evidence of the date of payment) from 1 February 1986 up to and including 10 September 1987 (the date of advance); then on the amount of $317,100 up to and including 1 March 1993; then on this amount from 26 August 1996 up to and including the date upon which final payment of compensation is made."
The claimant has appealed against that order. That appeal has yet to be heard.
The claimant now seeks an order for interest on compensation determined following the remittal hearing. The claimant submits that the Court now has a fresh discretion to exercise on the matter of interest and ought to make an order without any abatement of the type included in the earlier order.
The claimant has made submissions on the issue which are much more detailed and considered than those made at the original hearing. I have considered these fresh submissions and have read the authorities referred to therein.
The respondent formally repeated and relied on its submissions as to interest made at the original hearing; however, added a further submission as to the rate of interest that ought to apply. I consider that submission below.
In Alex Gow Pty Ltd v Brisbane City Council (unreported 5 June 2001) the Land Appeal Court considered in detail submissions concerning the decision of the learned Member at first instance to abate interest. I will not detail the Land Appeal Court's reasons on that occasion. I do notice, however, that at [95] to [97] the Court referred to the original decision in the present matter. The Court was not critical there of the principles that guided me in my original decision on the issue of interest, but at [97] distinguished the finding of facts in Alex Gow from those in the original decision.
The approach employed by me at first instance finds support in the Land Appeal Court decision on interest in White v Brisbane City Council (1975) 2 QLCR 359 at 367.
In the circumstances, I have decided to make an order as to interest on a similar basis to that included at [78] above.
The respondent has submitted that the appropriate order would be to award interest on injurious affection compensation at the rate of 10.5% up to 20 February 1998 (the date of the original decision) and thereafter at 5.5%.
The suggested rate of 5.5% is extracted from the rates published by the Court Registry.
It was submitted by the respondent that it would not be consistent with principle for the rate of 10.5% to be employed for the whole of the relevant period. I was not favoured with reference to the suggested principle or principles, however there are two points of principle that seem relevant to me.
First, the claimant ought not be disadvantaged on the basis that the Edwards principle was applied in the original decision denying injurious affection compensation on the facts of this case. The claimant sought injurious affection compensation from the outset.
Second, the decision to abate interest otherwise payable by the exclusion of the period 2 March 1993 to 25 August 1996 was made on the basis that the claimant was dilatory in prosecuting his claim. The reasoning relied implicitly on the thesis that the matter could have been disposed of earlier than it had been by commencing the hearing on 26 August 1996.
On that thesis the matter could have been disposed of 3½ years before 20 February 1998, that is by about August 1994. Had a judgment been made on that date, the interest rate applicable would have been 11.25%.
Now it would not be appropriate for an abatement of the period to have resulted in the compensation attracting a higher interest rate. In some instances that would lead to a claimant being rewarded for being dilatory.
I consider it appropriate, therefore, that interest be payable at the rate applicable to a claim for compensation where the resumption took place in 1986 but the determination of compensation did not take place until 2004. That rate is not published, but is calculated by me as being at 10% based on the published rates.
Orders
I order that the respondent pay the claimant Sixty-five Thousand Dollars ($65,000) being compensation with respect to the claim for injurious affection.
I order that the respondent pay the claimant interest at the rate of 10% per annum on the sum of $65,000 from 1 February 1986 up to and including 1 March 1993; then on this amount from 26 August 1996 up to and including the date upon which final payment of compensation is made.
I order that the claimant pay to the respondent 80% of the costs of and incidental to the hearing and determination of the claim for compensation for injurious affection, excepting for costs of the hearing dates of 15 and 16 April 2002 and 22 July 2002. The amount of such costs shall 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.
RP SCOTT
MEMBER OF THE LAND COURT
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