Nevis Pty Ltd v Department of Main Roads
[2002] QLAC 65
•26 August 2002
LAND APPEAL COURT OF QUEENSLAND
CITATION: Nevis & Ors v Department of Main Roads [2002] QLAC 65
PARTIES: Nevis Pty Ltd and Others
(applicants/appellants)
v
Chief Executive, Department of Main Roads(respondent)
FILE NO: LAC2002/0011
DIVISION: Land Appeal Court of Queensland
PROCEEDING: Application for costs
ORIGINATING COURT: Land Court of Queensland
DELIVERED ON: 26 August 2002
DELIVERED AT: Brisbane
HEARD AT: Brisbane by way of written submissions
JUDGE Justice Mullins
MEMBERS: Mr RP Scott and Dr NG Divett
ORDER: 1. The orders of Mrs CAC MacDonald made on 6 March 2002 are set aside.
2. The respondent pay one-third of the appellants’ costs of the application for leave to have the matter reheard and of the appeal.
3.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: Costs – unfettered discretion – partial success.
SOLICITORS: Dibbs Barker Gosling for the applicants/appellants
Crown Solicitor, Crown Law, for the respondent
When judgment on the appeal was given on 13 June 2002, the parties were invited to make submissions on the appropriate order for costs of the appeal and of the application for leave for rehearing before the learned Member of the Land Court, Mrs CAC MacDonald, whose decision was the subject of the appeal.
The learned Member by decision published on 6 March 2002 had ordered that the appellants pay the costs of the respondent of and incidental to the application for leave to have the matter reheard. As the appellants have succeeded on their appeal against that decision, it is appropriate in considering the issue of costs of the appeal to also look at what costs order should now be made in respect of the hearing before the learned Member in lieu of the order that was made on 6 March 2002.
These reasons must be read in conjunction with the reasons for judgment published on 13 June 2002.
Section 34(1) of the Land Court Act 2000 (“the Act”) empowers the Land Court to order costs for a proceeding in the court “as it considers appropriate”. Section 34(1) of the Act (in conjunction with s 72 of the Act) confers the jurisdiction on this Court in respect of the costs of an appeal in this court. Section 34 of the Act does not present a change to the jurisdiction which this Court and the Land Court exercised in respect of costs under the Land Act 1962.
The Land Court’s discretion has been consistently described in the authorities as an unfettered or full discretion which must be exercised judicially, by reference to relevant considerations, and not arbitrarily: see Townsville City Council v Moyses and Morris (1979) 6 QLCR 271, 273-274, Kabale Holdings Pty Ltd v Chief Executive, Department of Transport (1997) 18 QLCR 166, 198.
The observations made by the Full Court in Wyatt v Albert Shire Council [1987] 1 QdR 486,491 dealing with the exercise of a particular jurisdiction of the Local Government Court where the relevant legislation permitted the court to “make such order as it thinks fit as to the costs of any proceedings before it” are apposite to the jurisdiction as to costs exercised by the Land Court and the Land Appeal Court under s 34(1) of the Act:
"We would, in any event, have grave doubts about the correctness of an approach that required ‘some exceptional circumstance’ to be established before a discretion of the width of that conferred by s. 31 could be exercised. So to require would in effect be to deny the very discretion that the section sets out to invest. Equally, however, for reasons already given, we do not consider that it would be right to start with the common law preconception that costs follow the event."
Respondent’s Submissions
The respondent seeks an order that the appellants pay 80% of the respondent’s cost in the Land Court and the Land Appeal Court. This is based on the proposition that the appellants succeeded in the appeal on one issue - the Marshall issue - and that the respondent succeeded on all other issues. The respondent relies on Thiess v TCN Channel Nine Pty Ltd (No 5) [1994] 1 QdR 156, 206-210 (“Thiess”) to submit that costs should be distributed according to the outcome of particular issues by identifying “heads of controversy” as the criterion for awarding costs. The respondent allocates 10% of the costs to the Marshall issue and 90% to the other issues and sets off the 10% that the respondent concedes it should pay of the appellants’ costs against the appellants’ paying 90% of the respondent’s costs to result in the order proposed by the respondent.
Appellants’ Submissions
Although the appellants originally filed a submission on costs contending that there should be no order as to costs on the hearing of the appeal, the supplementary submissions on costs filed on behalf of the appellant which is responsive to the respondent’s submissions contends for:
(a)an order that the respondent pay 50% of the appellants’ costs in each court; or
(b)an order that the respondent pay the appellants’ costs of the appeal, but that there be no order as to the costs of the proceedings on the application for leave for rehearing before the learned Member.
The appellants submit that the decision in Thiess involved very different circumstances where the trial was a major one lasting for 13 weeks and the jury’s verdict was taken in the form of 69 separate answers to specific questions. It is the fact that the Court of appeal in Thiess was applying the relevant rules of court in considering what was the appropriate costs order in respect of the trial. One rule was that costs follow the event, unless otherwise ordered. The other rule was that where several issues, whether of fact or law are raised upon a claim, the costs of the issues follow the event, unless otherwise ordered.
The appellants relied on the fact that this case involved the first consideration of s 12 of the Act. The appellants also submitted that the mathematics which the respondent applied to propose that the appellants pay 80% of the respondent’s costs in each court was based on an assumption that the costs of each party in both courts were the same. The appellants submitted that recognition should be given to the fact that as claimants in a compulsory acquisition mater, they were not voluntary litigants.
Relevant Considerations
In view of the court rules that governed the exercise of the discretion in respect of the costs of the trial under consideration in Thiess and the very different nature of that proceeding, it is not helpful to draw analogies between the decision in Thiess in respect of the costs of that trial and the exercise of the unfettered discretion as to costs in this matter.
The fact that the appellants have been successful in obtaining a rehearing limited to the Marshall issue which resulted in the learned Member’s order dismissing the application for leave for rehearing being set aside is a significant factor. The fact that the appellants were unsuccessful on five other issues on which a rehearing was sought before the learned Member (which result was not affected by the successful appeal) and was unsuccessful in respect of those same five issues which were agitated to varying degrees on the appeal is also relevant.
The hearing before the learned Member took one day. The hearing of the appeal also took one day. If the application for rehearing and subsequent appeal had been limited to the Marshall issue and the principles on which the discretion under s 12 of the Act should be exercised, it is likely that less time would have been taken on each occasion (although that would not have had a significant overall effect) and there would have been some saving in preparation.
The relevance of this matter giving rise to the first consideration by the Land Court and the Land Appeal Court of the interpretation of s 12 of the Act is not that s 12 can be described as a novel provision, but that time was required to be spent both at the hearing before the learned Member and on the appeal in considering the interpretation of s 12 of the Act and the principles that are relevant to whether an application for leave to rehear a matter should be ordered.
It is also relevant that the Marshall issue was not one which arose through the oversight of the appellants in conducting the proceeding which was the subject of the application for leave to have the matter reheard. As stated in para [77] of the reasons for judgment published on 13 June 2002, the law in relation to compensation under s 20(1)(b) of the Acquisition of Land Act 1967 was changed or clarified by Marshall. That decision was published on 21 June 2001, after the appellants had filed the application for leave to have the matter reheard. There was an element of fortuity in the timing of the decision in Marshall in relation to the appellants’ application for leave to have the matter reheard. The appellants were entitled to take advantage of that circumstance.
The fact that the appellants are claimants for compensation as a result of a compulsory acquisition must not be overlooked.
What has to be decided in exercising this unfettered discretion as to costs, is what the court considers appropriate. There is no precision to the exercise that is undertaken in endeavouring to bring all the relevant factors into account. The success of the appellants in the appeal tempered by the lack of success of the appellants on the other issues favours ordering costs in favour of the appellants in both courts to some, but not to a substantial, extent. An appropriate order in all the circumstances is that the respondent pay one-third of the appellants’ costs in each court.
Orders
1.The orders of Mrs CAC MacDonald made on 6 March 2002 are set aside.
2.The respondent pay one-third of the appellants’ costs of the application for leave to have the matter reheard and of the appeal.
3.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.
(Mullins J)
JUSTICE OF THE SUPREME COURT
(RP Scott)
MEMBER OF THE LAND COURT
(NG Divett)
MEMBER OF THE LAND COURT
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