Nfa Mepham v Chief Executive, Department of Natural Resources

[2009] QLC 180

LAND COURT OF QUEENSLAND

CITATION:

NFA Mepham & Ors v Chief Executive, Department of Natural Resources [2009] QLC 0180

PARTIES:

NFA, MA and DJA Mepham
(appellants/applicants)

v.

Chief Executive, Department of Natural Resources
(respondent)

FILE NO:

SCA001-00 (formerly A2003/003)

DIVISION:

Land Court of Queensland

PROCEEDINGS:

Hearing of an application

HEARD ON:

18 November 2009

DELIVERED ON:

11 December 2009

DELIVERED AT:

Brisbane

HEARD AT:

Brisbane

MEMBER:

Mr R S Jones

ORDER:

1. In the circumstances of this case the Land Court does, in accordance with s.34 of the Land Court Act 2000, have the jurisdiction to appoint a cost assessor as the appropriate assessing officer of the Supreme Court.

2.   I shall hear from the parties on outstanding matters including the final form of the orders to be made, the future conduct of the application and costs.

CATCHWORDS:

COSTS – Power to Appoint Cost Assessors pursuant to s.34 of the Land Court Act 2000 – Whether that power is limited to the appointment of an assessing registrar as defined under the Uniform Civil Procedure Rules 1999 – meaning of the phrase “appropriate assessing officer of the Supreme Court” in s.34(5) of the Land Court Act 2000
- Application of Chapter 17A of the Uniform Civil Procedure Rules 1999  – Interaction of s.4 of Land Court Rules 2000 and Uniform Civil Procedure Rules 1999

APPEARANCES:

Mr N Purcell, solicitor, for the appellants/applicants

Mr G Robinson of counsel, instructed by Ms T Johnson, principal lawyer employed by the respondent

Background

1. On 4 June 2009 I was required to deal with a number of applications filed by the parties and, for reasons it is not necessary to go into here, I made the following orders:

   1.The appellants’ appeal is struck out for want of jurisdiction

   2.The respondent’s application is dismissed

   3.The appellants’ application is dismissed

   4.The respondent is to pay the appellants’ costs of and incidental to both applications.

   The only order of any relevance in these proceedings is order 4.

2. On 4 November 2009 the applicants filed a general application. The substantive relief sought is that I order a Mr Ryan to be appointed to assess the applicants’ costs consequential to the order made by me and referred to above. Mr Ryan is a qualified legal practitioner of not less than five years standing who has consented to being appointed as a cost assessor.

3. The respondent opposes the appointment of Mr Ryan. This opposition is not based on there being any conflict or dispute about its obligations pursuant to the costs order but rather on the basis that this Court does not have the jurisdiction to make the orders now sought.

The competing arguments

1. The central question is whether I have the power to order that the costs be assessed by a cost assessor as defined in the Uniform Civil Procedure Rules 1999 (UCPR) or whether my power is limited to an order that the costs be assessed by an assessing registrar as defined under those Rules. On behalf of the applicants it is contended that I have the broader powers and on behalf of the respondent it is argued that my jurisdiction is limited to referring the matter to the assessing registrar. Common ground is; first, that the power to grant the relief sought must be found in either the Land Court Act 2000 (LCA) or, as advocated for on behalf of the applicants, under the LCA together with the Land Court Rules 2000 (LCR) and the UCPR. Second that, the reference to the “appropriate assessing officer” in s.34(5) of the LCA cannot readily be construed so as to include cost assessors as defined in the UCPR.

2. Rule 679 of the UCPR relevantly defines an “assessing registrar” to mean a registrar approved to assess costs by the Chief Justice. A “cost assessor” means:

   “(a)     a cost assessor appointed under Rule 743L; or

   (b) except in parts 4 and 5, an assessing registrar.”

   Pursuant to Rule 743L a person who is eligible for appointment as a cost assessor applies for appointment under Rule 743K and the Brisbane registrar (the registrar of the Supreme Court at Brisbane) may appoint, or refuse to appoint the person. A person whose application is refused has a right of appeal to a single judge of the Supreme Court. Part 4 of Chapter 17A of the UCPR is primarily concerned with the assessment of costs under the Legal Profession Act 2007 and Part 5 with the eligibility, appointment and other procedural matters concerning cost assessors. Subject to the exceptions specifically identified within the meaning of a cost assessor, the meaning may include an assessing registrar.

3. Section 34 of the LCA relevantly provides:

   “(1)Subject to the provisions of this or another Act to the contrary, the Land Court may order costs of a proceeding in the court as it considers appropriate.

   …

   (3)An order made under subsection (1) may be made an order of the Supreme Court and enforced in the Supreme Court.

   (4)For subsection (3), it is enough to file the order in the Supreme Court.

   (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.”

   Disappointingly, an “assessing officer” is not defined.

4. Prior to the LCA being enacted, costs were dealt with under s.41(9) of the Land Court Act 1962 (and preserved in the Land Court Act 1994 – s.521). That provision relevantly provided that “… such costs shall be ascertained and fixed by the proper costs taxing officer of the Supreme Court at Brisbane, according to the scale of costs prescribed by law for the time being in respect of proceedings in the Supreme Court … ”.[1] In 1999 the UCPR were introduced. Pursuant to Rule 684(1), as it then was, unless the court ordered otherwise, costs under Part 2 had to be assessed by the registrar. Pursuant to Rule 679 the “registrar” was relevantly defined to mean the registrar approved to assess costs by the Chief Justice. In 2000 the LCA was introduced and, pursuant to s.34(5) of the Act, as it then was, if the court considered it appropriate, it could order costs to 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”. Two matters arise from this. First, apart from substituting an “appropriate assessing officer” for the “proper costs taxing officer” the provisions of s.34(5) of the LCA, as it then was, was materially the same as s.41(9) of the Land Act 1994. Second, the “appropriate assessing officer of the Supreme Court” could only apply to a registrar of that court. Up until the amendments to the UCPR in 2007, no provision was made for cost assessors.

   [1]     Under the then Supreme Court Rules the taxing officer would have been a “Proper Officer” of the Court (Order 1).

5. In 2005, s.34(5) of the LCA was amended to delete the reference to the scale of costs prescribed for proceedings in the Supreme Court. Otherwise the section remained the same. In 2007, the UCPR were amended to, among a number of other important changes, introduce the concepts of the assessing registrar and cost assessors.

6. At all material times the relevant legislative source of power for the Land Court to award costs has required that they be assessed by the appropriate taxing/assessing officer of the Supreme Court. As a legal practitioner, Mr Ryan in particular and cost assessors in general, will be an officer of the Supreme Court.[2] However, in the context of s.34(5) of the LCA that alone is not enough. The relevant person must be the appropriate assessing officer of the Supreme Court.

   [2] S.39 Legal Profession Act 2007.

7. In favour of the construction of s.34(5) of the LCA advanced on behalf of the respondent are a number of persuasive factors. First, the idea that a cost assessor might be the appropriate officer of the Supreme Court is not an immediately attractive one. From a historical perspective it can be (and was) reasonably argued that when s.34(5) and its predecessors were enacted, Parliament could not have intended to include that class of persons now known as cost assessors under the UCPR. A cost assessor, even after appointment under Rules 743K and 743L, is likely to be a person largely independent of the court. He/she will ordinarily be a person in private practice retained for reward at an hourly rate to carry out a specific task. Second, a number of the powers given to the assessing registrar under the UCPR[3] are more consistent than those that an officer (in the more specific sense) of the court might be expected to have.

   [3]     R.714(a), (b) and (e) – compared to R.720.

8. However, there are a number of important factors which weigh in favour of the position advanced on behalf of the applicants. First, as a legal practitioner, Mr Ryan is properly able to be described as an officer of the Supreme Court. Second, once appointed as a cost assessor that person could also be reasonably described as an assessment officer. Third, and perhaps more importantly, the definition of a registrar can include a cost assessor. As already referred to, relevantly here an assessing “registrar” means a registrar appointed to assess costs by the Chief Justice. A registrar means for Schedules 1, 2 and 3 of the UCPR: (i) an assessing registrar within the meaning of Rule 679; or (ii) a cost assessor appointed under Rule 743L.[4] Schedules 1, 2 and 3 of the UCPR set out a scale of costs for the Supreme Court, District Court and Magistrates Court respectively. The fact that a cost assessor does not automatically have the same powers as an assessing registrar is not decisive one way or the other. A cost assessor can, if necessary, obtain the necessary powers, albeit with the intervention of the court.[5]

   [4] Schedule 4 of UCPR meaning of “registrar”.

   [5]     R.715.

9. A cost assessor of course cannot become an assessing registrar except in what seems to me to be the unlikely event that he/she was so approved by the Chief Justice. However, the fact that a cost assessor for the purposes, even if limited purposes, of the UCPR is capable of being recognised as a registrar of the court is relevant. It suggests that not as much emphasis should be placed on the fact that a cost assessor is not an officer of the court in the same sense as a permanent registrar or assessing registrar are.

10. During the course of his oral submissions Mr Robinson argued that if the construction of s.34(5) advanced by the applicant was correct, that would mean that any person wronged by a decision on costs made by a cost assessor would lose his rights to appeal.[6] If this was correct it would be a factor which would lean heavily in favour of the respondent’s position. Rights of appeal can only be taken away by clear and express words. Rule 742 of the UCPR provides for a review of a decision of a cost assessor by “the Court”. In circumstances where a cost order was, pursuant to s.34(3) of the LCA, made an order of the Supreme Court the relevant court would be that court. If, as Mr Robinson suggested, the Land Court were to become the appropriate court for making orders and directions concerning the appointment of cost assessors then any review of the decision of the cost assessor would probably be by the Land Court. If that were the case, I can see no reason why the decision of the Land Court would not be capable of being appealed to the Land Appeal Court and on matters of law possibly even on to the Court of Appeal. I am in no way intending to express a final view about whether Mr Robinson’s observations about the likely involvement of the Land Court in the assessment process, if the applicants’ case is accepted, is correct. That will be a matter for another day and more detailed argument. However, on balance, I do not accept that a decision adverse to the respondent in this matter would result in a construction of s.34(5) which could materially affect a dissatisfied party’s rights of appeal.

    [6]     T.1-10 L.20-60.

11. On balance, while I have found this to be a difficult matter, I have, for the reasons set out above, come down in favour of the fundamental proposition advanced on behalf of the applicants. Namely, that for the purposes of s.34(5) of the LCA, an appropriately qualified cost assessor can be the appropriate assessing officer of the Supreme Court. This interpretation will, in my view, best achieve the purpose of s.34(5).[7] Further, when read in context, the natural and ordinary meaning of the words used in s.34 do not require or justify the narrow and restrictive construction contended for by the respondent.

    [7]     S.14A Acts Interpretation Act 1954.

12. In reaching this conclusion I am conscious of the fact that it was reached for reasons not advanced by, and, in fact arguably abandoned by Mr Purcell. Nonetheless, I consider it to be the correct result and, not unimportantly, a result which appears to be more consistent with the well considered and significant shift in philosophy concerning the assessment of costs as now provided for in the UCPR. In this context I note that to date no person has been approved as an assessing registrar. As Mr Robinson pointed out this is not decisive as one could be approved by the Chief Justice when considered appropriate. However, the fact that no such appointment has been made is consistent with the apparent intention of the UCPR to have, whenever it is appropriate to do so, costs assessed by persons outside of the registry of the court.

13. However, in all the circumstances,[8] I also consider that the only specific order that I should make at this stage is that under s.34(5) of the Land Court Act 2000 the Land Court does have the jurisdiction to appoint a cost assessor as the appropriate assessing officer of the Supreme Court. I shall hear from the parties on outstanding matters including costs, the final form of the orders to be made and the future conduct of the application.

    [8]     Which includes the respondent’s alternate argument regarding the appointment of Mr Ryan which was not advanced on the date of the hearing of the application.

14. Given the conclusion reached by me it is not necessary to deal in detail with Mr Purcell’s primary argument to the effect that the combined effect of Rule 4 of the LCR and the provisions of the UCPR dealing with costs, gives this court the jurisdiction to make the orders sought. For the sake of completeness however I consider it desirable to express my views about this submission. Rule 4 of the LCR provides:

    (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.

15. While it is true that the LCR do not address the issue now before the court, s.34 of the LCA does. It is that section which gives the Land Court its relevant jurisdiction concerning costs and, while certain specific rules of the UCPR might assist in the construction of s.34(5), those rules in themselves do not give to this Court the powers necessary to grant the relief sought.

Orders

1. In the circumstances of this case the Land Court does, in accordance with s.34 of the Land Court Act 2000, have the jurisdiction to appoint a cost assessor as the appropriate assessing officer of the Supreme Court.

2.     I shall hear from the parties on outstanding matters including the final form of the orders to be made, the future conduct of the application and costs.

RS JONES

MEMBER OF THE LAND COURT