Marshall v Director-General, Department of Transport

[2001] QLAC 93

[2001] QLAC 93

 

IN THE LAND APPEAL COURT HELD AT BRISBANE

In the matter of an appeal and a cross-appeal from the decision of the Land Court -

Claim for Compensation

Acquisition of Land Act 1967 and Main Roads Act 1920

(A92-77).

BETWEEN

MelvilleRobert Marshall AND

Appellant/Respondent

Director-General, Department of Transport

Respondent/Appellant

BEFORE THE HONOURABLE JUSTICE MULLINS, MR JJ TRICKETT, PRESIDENT AND MRS CAC MacDONALD

REASONS FOR JUDGMENT

Delivered at Brisbane this Seventeenth day of September 2001.

HER HONOUR: This is the judgment of the Court.  In these reasons we will refer to Mr Marshall as the appellant and the Director-General, Department of Transport, as the respondent. On 24 July 1998 the Land Appeal Court dismissed an application by the appellant for leave to adduce further evidence in connection with the appeal by the appellant from the decision of the Land Court delivered 20 February 1998. That decision of the Land Appeal Court was upheld by the Court of Appeal.

In the Court of Appeal, for the first time, the appellant amended the Notice of Appeal to that Court to challenge the correctness of the decision in Edwards v. Minister for Transport [1964] 2 QB 134.

Special leave was given to the appellant to appeal from that decision of the Court of Appeal limited to the Edwards' point. The High Court allowed the appeal and rejected the Edwards' principle.

One of the orders that was made by the High Court was that the order of the Land Appeal Court made on 24 July 1998 be set aside.  In addition the High Court ordered that

the application dismissed by the Land Appeal Court be remitted to that Court to be dealt with in accordance with law.

When the application for leave to adduce further evidence came back before this Court for directions on 17 July 2001 as a result of the decision of the High Court, the Notice of Appeal to the Land Appeal Court was amended to include ground 4A in the following terms:

"The decision in Edwards v. The Minister of Transport [1964] 2 QB 134 is wrong and should not be followed."

By consent of the parties the appeal to the Land Appeal Court to the extent that it was based on ground 4A of the amended Notice of Appeal was allowed.

The issue of the determination of compensation for damage due to injurious affection was remitted to the Member of the Land Court, Mr Scott, who had heard the original application between the appellant and the respondent, to be heard and decided with such further evidence as Mr Scott allows.

In practical terms the need to pursue the application for leave to adduce further evidence had by then been overtaken by events and also by the order made remitting the determination of compensation for damage due to injurious affection to Mr Scott.

The parties therefore have agreed that the appropriate order now to be made in relation to the application in the Land Appeal Court for leave to adduce further evidence in connection with the appeal which had originally been lodged by Mr Marshall from the decision of Mr Scott, is that the application for leave to adduce further evidence should be dismissed.

That leaves the question of the costs of the application for leave to adduce further evidence. The appellant seeks an order that the respondent pay the costs of that application. Mr Mack of Counsel, on behalf of the appellant, argues that the appellant was obliged to conduct his case, at all relevant times, until the decision of the High Court, as though the principle in Edwards' case was applicable and that the entire decision on the application for leave to adduce further evidence that was heard by the Land Appeal Court and determined in July 1998, was tainted and ought not now indirectly be given effect by an order for costs made in reliance upon it.

In addition, Mr Mack argued that the application for leave to adduce further evidence was the vehicle through which the law relating to the application of the Edwards' principle was changed.

The respondent seeks an order that there be no order as to costs in respect of the application for leave to adduce further evidence. Mr Jones of Counsel, on behalf of the respondent, argues that the appellant sought leave to adduce further evidence in the Land Appeal Court other than evidence which was relevant to the Edwards' point, as it was then understood. Mr Jones submitted that of the further evidence sought to be adduced by the appellant only the physical survey evidence of the pre-resumption boundary to ascertain the location of the property boundary in relation to the highway duplication was relevant to the Edwards' principle. The other evidence comprising the Connell Wagner Pty Ltd flood study for Eudlo Creek dated 26 August 1996 and other associated evidence related to the quantum of the injurious affection rather than the application of the Edwards' principle and that the decision of the High Court has no effect whatsoever on increasing the relevance of that Connell Wagner report and associated material.

We accept that Mr Jones is correct when he characterises the classes of evidence that were sought to be adduced by the appellant in the application for leave to this Court that was determined in July 1998. In the context, however, of these proceedings we do not consider that that is sufficient to deprive the appellant of the costs of this application. It was the pursuit of this application that enabled the successful challenge to the Edwards' principle.

We accept Mr Mack's argument that the application for leave to adduce additional evidence other than that relating to the Edwards' principle was tainted by the constraint of the Edwards' principle in connection with the conduct of this proceeding to that stage. It would be artificial to try to separate the seeking of the leave to adduce the physical survey evidence from the balance of the evidence for which leave was sought to be adduced on this application. The practical outcome of this application has been the successful challenge to the Edwards' principle and therefore success for the appellant. The appellant therefore should have its costs of the application for leave to adduce further evidence, including the costs of the argument today.

The orders that we make are:

1. By consent the application by the appellant to the Land Appeal Court to adduce further evidence be dismissed.

2. The respondent pay the appellant's costs of amending the Notice of Appeal to the Land Appeal Court limited to those costs directly associated with the inclusion of ground 4A to the said Notice of Appeal and the costs of the application by the

appellant, to the Land Appeal Court to adduce further evidence, including the argument relating to costs heard today.

1. It is ordered that the costs 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 and that the assessing officer may decide the appropriate scale to be used in assessing the costs.

(DA Mullins) JUSTICE OF THE SUPREME COURT

(JJ Trickett) PRESIDENT OF THE LAND COURT

(CAC MacDonald)  MEMBER OF THE LAND COURT