Opalinski v Coordinator-General

[2013] QLC 63

LAND COURT OF QUEENSLAND

CITATION:Opalinski v Coordinator-General;

Opalinski v Chief Executive, Department of Transport and Main Roads (No. 3) [2013] QLC 63

PARTIES:Zdzislaw Joe Opalinski

(applicant)

v.

Coordinator-General;

Chief Executive, Department of Transport and Main Roads

(respondents)

FILE NO:AQL338-10

AQL033-12

DIVISION:General Division

PROCEEDING:  Application for costs upon determination of application that matters be heard together

DELIVERED ON:                  18 November 2013

DELIVERED AT:                   Brisbane

HEARD ON:  Heard on the Papers

Final submissions filed 14 October 2013

HEARD AT:Brisbane

MEMBER:WA Isdale

ORDERS:The decision on the present costs application is reserved until the conclusion of the compensation proceedings in respect of which the applications were made.

CATCHWORDS:         Costs ― costs of application ― competing considerations

Opalinski v Coordinator-General; Opalinski v Chief Executive, Department of Transport and Main Roads [2013] QLC 57

APPEARANCES:                  Mr D Gardiner, instructed by Bradley Munt & Co solicitors for the applicant

Mr D O’Brien QC, instructed by Corrs Chambers Westgarth lawyers for both respondents

Background

1. The applicant brought applications to hear these two cases together and for certain disclosure orders. That part of the applications seeking joinder was heard separately and was not successful.[1] The present matter concerns the respondents’ application for costs of their successful defence of the joinder part of the applications.

   [1]     Opalinski v Coordinator-General; Opalinski v Chief Executive, Department of Transport and Main Roads [2013] QLC 57.

2. The submissions have been put briefly and clearly and, for clarity, it is convenient to simply set them out.

The successful respondents’ submissions

1. 1.    The respondents apply for orders in each of these proceedings that the applicant pays the respondents’ costs of and incidental to the applications filed 19 April 2013.

   2.In response to the filing of the applications, the respondents, by letter dated 2 May 2013, explained, in detail, the reasons why it was not appropriate for the proceedings to be heard together. Despite that correspondence, the applicant continued to press its applications. The reasons identified by the respondents in their correspondence were the same as those identified by the Court as being the basis for refusing the applications for the proceedings to be heard together.

   3.In the circumstances, the interests of justice will only be served if costs follow the event and the applicants (sic) are ordered to pay the respondents’ costs of and incidental to the applications.

The unsuccessful applicant’s submissions

1. 1.    Only one order for costs ought to be made as the respondents are represented by the same firm, retained the same counsel and in essence made the same submissions.

   2.In any event, any order for costs against the applicant ought to be the respondents’ costs in any event so that payment is deferred until the final determination of his claims for compensation.

   3.Further, no decision should be made with respect to the current application for costs until the Court has determined the applicant’s application for disclosure of documents by DTMR as, if the Court makes such an order, an application for costs is likely to be made which should be offset against any order that may be made in the current application for costs by the respondents.

   4.It would be unjust to order costs to be paid prior to the determination of the compensation claims, especially since the roadwork’s scheme and the severing of access have for the best part of at least two decades prevented the applicant from developing his land to its highest and best use in accordance with local authority’s zoning.

Decision

1. The decision on this application for costs will be reserved until the conclusion of the principal compensation cases. At that time, all aspects of the matters will be more likely to have been revealed and may be taken into account. The extent  of the scheme of resumption may be a relevant consideration and is not yet known.

Order

The decision is reserved until the conclusion of the proceedings.

WA ISDALE

MEMBER OF THE LAND COURT