Perpetual Trustee Company Limited v Department of Natural Resources and Water

[2007] QLAC 26

LAND APPEAL COURT OF QUEENSLAND

CITATION:

Perpetual Trustee Company Limited v Department of Natural Resources and Water [2007] QLAC 26

PARTIES:

Perpetual Trustee Company Limited
(appellant)

v.

Department of Natural Resources and Water
(respondent)

FILE NOS:

LAC2006/0107 and LAC 2006/0111

DIVISION:

Land Appeal Court of Queensland

PROCEEDINGS:

Applications for costs pursuant to the refusal of an application by the appellant to adduce new evidence under s.56 of the Land Court Act 2000

ORIGINATING COURT:

Land Court of Queensland

DELIVERED ON:

16 April 2007

DELIVERED AT:

Brisbane

HEARD AT:

Brisbane

JUDGE
MEMBERS

White J
Mr RP Scott
Mrs CAC MacDonald

ORDERS:

1.     It is ordered that the appellant pay the respondent's costs of and incidental to the application.

2.     The costs are to be decided by the appropriate assessing officer of the Supreme Court, under the scale of costs provided by law for proceedings in the Supreme Court.

CATCHWORDS:

Practice and procedure – costs of application in pending proceedings – application to adduce new evidence refused – usual rule that costs follow the event – nothing in Valuation of Land Act or in the proceedings to justify departure from the rule.
Practice and procedure – application to adduce new evidence refused – costs not immediately applied for – order reserving costs made at least seven days after decision refusing application – jurisdiction to make order – breadth of jurisdiction under s.34 Land Court Act 2000 – application of Uniform Civil Procedure Rules.

APPEARANCES:

Mr R Traves SC for the appellant
Mr D Fraser QC and Mr T Quinn for the respondent

SOLICITORS:

Gadens Lawyers for the appellant
Crown Solicitor, Crown Law for the respondent

The Appeals

1. Perpetual Trustee Company Limited appealed to this Court against determinations of unimproved values of certain land made by the Land Court as at 1 October 2001 and 1 October 2002. In connection with those appeals the appellant lodged applications in each matter to adduce new evidence pursuant to s.56 of the Land Court Act 2000.  Those applications sought the admission of evidence comprising two lines from a page of a valuation report prepared by a valuer for the Chief Executive in an appeal concerning the subject property for a valuation date later than those the subject of the appeals before us.  The applications were filed on 19 October 2006 and were heard and refused on 30 October 2006.  No application for a costs order was made by the respondent on that occasion, however the respondent now seeks its costs of the application to adduce new evidence.  The appellant opposes that application.  These reasons are concerned with that costs application not with the costs said to be have been incurred by the respondent in anticipation of a different application being made by the appellant.

2. There was no mention of the topic of costs at the time of the hearing and disposal of the application for new evidence.  Immediately following the disposal of the appellant's application, the hearing of the substantive appeals commenced.  The matter of costs was first raised by the respondent in a letter to the Registrar of the Court filed by facsimile on 7 November 2006, with a copy being sent to the solicitors for the appellant.  The letter foreshadowed an application for costs and requested "that the Court withhold issue of the formal order on the application to admit new evidence until submissions on costs have been received".  The letter did not seek the appellant's consent to such an approach.

3. The Registrar drew the Court's attention to the contents of the respondent's letter.  The following orders then issued:

   "1.            The application for leave to adduce fresh evidence is dismissed.

   2.  The costs of and incidental to the application be reserved."  

4. While there is reference in the sealed orders document to the hearing date of 30 October 2006, there is no reference to the date of issue of the formal orders.  Nevertheless it is clear that the orders were sealed on or after 7 November 2006.  The appellant has raised a threshold question as to the Court's power to deal with the costs application. 

5. The power in the Land Appeal Court to award costs is found in s.34 of the Land Court Act2000 which applies to this Court per force of s.72. Section 34 provides:

   "Costs

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

   (2)  If the court does not make an order under subsection (1), each party to the proceeding must bear the party’s own costs for the proceeding.

   (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, under the scale of costs prescribed by law for proceedings in the Supreme Court.

   (6)  If the court makes an order under subsection (4), the assessing officer may decide the appropriate scale to be used in assessing the costs."

6. Section 34 imposes no specific time limit on the making of an order for costs nor does it refer to any event or circumstance with would have the effect of exhausting the Court's jurisdiction to award costs. There is nothing in the Land Court Rules 2000 dealing with any procedural aspect of an application for costs; however Rule 4 provides:

   "Application of Uniform Civil Procedure Rules

   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."

7. The respondent submitted that as the Land Court Rules make no provision for application for costs resort may be had to the Uniform Rules.  That submission is resisted by the appellant who placed reliance on Bowden v The Valuer-General[1] where at 146 the Land Appeal Court said:

   "… The approach of the Supreme Court to orders for costs (as indicated by its Rules) cannot, with respect, govern the approach of the Land Court or the Land Appeal Court to the exercise of discretion; those courts derive their respective powers to award costs from the Land Act, and perform a quite different function from that which is performed by the Supreme Court."

   [1] (1980) 7 QLCR 138.

8. The Land Court Rules in their present form came into effect in the year 2000.  The previous rules, which were brief, ancient and of little utility at that time, included no rule equivalent to Rule 4.  Apart from that, the Uniform Rules did not exist in 1980 at the time the decision in Bowden was pronounced.  The Uniform Civil Procedure Rules by Rule 3 apply to the Supreme, District and Magistrates Courts and by s.4 of the Land Court Rules to the Land Court to the extent therein permitted.  The scheme of the legislation is clearly one of providing a consistency in rules to the extent that that is appropriate.  In these circumstances it cannot be said that Bowden authorises disregard of the Uniform Rules. 

9. It should be noticed that in Bowden the Land Appeal Court in distinguishing the approach to costs in the Supreme Court from that in the Land Court and Land Appeal Court, said at 146 and 147 that an important consideration in dealing with costs issues in the Land Court and the Land Appeal Court is that of the need for ease of access to those Courts. Whilst such a principle might be open to debate, it is not one that has any relevance in a costs application which arises in an interlocutory application.

10. Rule 680 of the Uniform Rules provides:

    "General provision about costs
    (1)  The costs a court may award –

    (a)may be awarded at any stage of a proceeding or after the proceeding ends; and

    (b)        must be decided in accordance with this part.

    (2)If the court awards the costs of an application in a proceeding, the court may order that the costs not be assessed until the proceeding ends."

11. A consideration of Part 1 of Chapter 2 of the Uniform Rules "Starting Proceedings" leads us to the view that a "proceeding" in Rule 680 refers to the appeals before us. The application to admit new evidence is not one with respect to a proceeding independent of the appeals but is, as the footnote to Rule 8(3) says, an "interlocutory application". It was a "general application" in existing proceedings, not an originating application. The application of Rule 680 to the question of costs now before us leads to the conclusion that the question of costs of the interlocutory application may be dealt with at this stage of the proceedings or after the proceedings end. Indeed, the breadth of the jurisdiction to award costs given by s.34 of the Land Court Act is one which would support the same conclusion.  We do not intend to indicate that the timelines of an application for costs is not an issue for consideration by this Court.  That issue should, however, be considered on a case by case basis.

12. The appellant submitted that the "respondent had belatedly sought an order for costs".  We understand that submission to be a reference to the respondent's letter of 7 November.  Linked with that submission, the appellant says that the request by the respondent in its letter is outside the 7 day period provided for in Rule 45(1) of the Land Court Rules 2000.  The appellant characterises the respondent's letter as a request to vary the order made orally by the Court on 30 October 2006 that the application to adduce fresh evidence be refused.

13. Rule 45 provides: 

    "Setting aside an order

    45(1)  The court may vary or set aside an order before the earlier of the following -  

    (a)  the filing of the order;  or
          (b)  the end of 7 days after the making of the order.

    (2)  However, the court may set aside an order at any time if - 

    (a)  the order was made in the absence of a party;  or
          (b)  the order was obtained by fraud;  or
          (c)  the order does not reflect the court's intention at the time the order was made;  or
          (d)  the party who has the benefit of the order consents."

14. The letter from the respondent to the Registrar is not, in our view, a request to the Court to vary the order of the Court made orally on 30 October. Section 45 is therefore not relevant to that request. Neither is it relevant to the making of the second order of the Court that the issue of costs be reserved. That was not a variation of the earlier order but a supplementation of it by the addition of a further ancillary order. Apart from that we do not think that Rule 45 provides a basis for limiting the breadth of the power given in s.34 of the Land Court Act.  It is our view that even if the order as to the reservation of costs was not made, the Court could entertain an application for costs. 

15. Reference may also be made to Rule 21 of the Land Court Rules:

    "Power to correct mistakes

    21.(1)     This rules applies if –

    (a)there is a clerical mistake in an order or certificate of the court or in a record of an order or certificate of the court; and

    (b)the mistake resulted from an accidental slip or omission.

    (2)At any time, the court, on application by a party or on its own initiative, may correct the mistake."

16. In Raybos v Tectran[2] Toohey J had to deal with an application for an order of costs in circumstances where counsel for the successful party had neglected to ask for costs at the time the opposing parties' substantive application was dismissed.  Subsequently, an application was made seeking a variation of the original order by providing for an order for costs.  At the time O29, r11 of the High Court Rules provided:

    "A clerical mistake in a judgment or order, or an error arising in a judgment or order from an accidental slip or omission, may at any time be corrected by the Court or a Justice on motion or summons."

    [2] (1988) 77 ALR 190.

17. His Honour held at 191 that the accidental slip or omission of counsel by not asking for costs could be corrected by the inclusion of a costs order.  We observe that that conclusion goes somewhat further than we would need to do in the present matter as we would not rely on Rule 21 to make any order for costs.  We would only rely on the "slip" rule to the extent of making the order to reserve the question of costs – an order that could be made given the apparent oversight of counsel for the respondent in not seeking an order for costs at the earlier time. 

18. The appellant submits that the order made to reserve the matter of costs was made in the absence of the appellant.  That is correct.  Indeed, the order was made in the absence of both parties.  The order finally made was not one that was either an imposition on either of the parties or would have come as a surprise.  It had the effect of preserving the position of the parties until, as happened, they were each able to make submissions on the question of costs.  In the circumstances we think it irrelevant that the order was made in the absence of the parties. 

19. Although these substantive appeals relate to the issue of the relevant statutory valuations, the question of costs presently under consideration is not. It is concerned with an application pursuant to s.56 of the Land Court Act. There is therefore no other statutory provision such as s.70 of the Valuation of Land Act 1944 which would otherwise impose a limitation of the discretion regarding costs. Section 70 provides:

    "70  Costs of appeal against valuation

    (1)Where the value of land as finally determined upon an appeal against the valuation is the value stated by the owner in the owner’s notice of appeal against the valuation, or is nearer to that value than to the valuation appealed against, costs shall not be awarded against the owner.

    (2)Otherwise costs shall not be awarded against the chief executive."

20. In the circumstances of an interlocutory application we see no need to address the submissions for the parties dealing with the issue of costs where the court has been moved to exercise its jurisdiction under s.66 of the Valuation of Land Act 1944 and where s.70 of that Act is the source of the power to award costs.

21. The nature of the jurisdiction enlivened by the respondent's application for costs is not dissimilar to that which applied in Barns v Director-General, Department of Transport[3] where at 135 the Land Appeal Court said:

    "This Court has an unfettered discretion as to the costs of and incidental to an appeal before it.  An unfettered discretion is not an unprincipled one, and on ordinary principles, costs in circumstances such as these would follow the event.  The general rule that costs will usually follow the event is one which is deeply embedded in our law.  Although it has attracted some criticism in recent years, there was no attempt by the legislature to modify it when the practice of this Court was given attention in the Land Act 1994.  It is a general rule which prima facie should be applied in this case."

    [3] (1997) 18 QLCR 133.

22. Those words were cited with approval by this Court in Haber v Department of Main Roads[4].  In Chief Executive, Department of Main Roads v Regan & Ors[5] this Court placed reliance on Barns but expressed the proposition thus:

    "The general rule is that costs ordinarily follow the event, unless there are special circumstances warranting departure from that general rule".

    The proposition there expressed was recently applied in Hegira Ltd v Department of Natural Resources and Mines[6].

    [4] [2004] QLAC 0102 at [6].

    [5] (2000) 22 QLCR 151 at 152.

    [6] (2006) QLC 0001 at [12] – [14].

23. In the explanatory notes to s.34 of the Land Court Bill 1999 the following appears:

    "… the general rule is that parties to a proceeding bear their own costs.

    However, the Court may make an order as to costs it considers appropriate.  For example, a successful party may be granted an order that the other side pay all or part of their (the successful party's) costs."

24. The appellant relies on the first part of this quotation as an expression of a general rule which binds this Court. There is nothing in the explanatory notes to indicate that s.34 was intended to represent a change in the position which was described in the quite clear language of Barns quoted above. We do not think that such a general rule applies. There is nothing in the language of s.34 which could be understood as stating a general rule of the type proposed by the appellant. That was made quite clear in Haber which was decided after the enactment of the Land Court Act. Recourse to rule 689(1) of the Uniform Rules which expresses the general rule that costs follow the event unless another an order is considered or appropriate, is not required.

25. The appellant submitted that were this Court to hold that costs would ordinarily follow the event there are special circumstances which warrant departure from the general rule.  The suggested circumstances are found in what the appellant describes as a change in the respondent's position concerning the valuation of the subject land following the dates of the appeals before us.  Evidence in support of that contention was said to comprise the new evidence sought to be led, but refused.  In our view the limited nature of that evidence was such that it could not be relied on to support the appellant's contention.  In particular, the evidence did not reveal the methodology employed by the valuer. 

26. We do not think that the fact that the respondent's application for costs was somewhat belated ought to operate to deny it the benefit of an order for costs.  No prejudice to the appellant has been demonstrated.

Order:

1.       It is ordered that the appellant pay the respondent's costs of and incidental to the application.

2.       The costs are to be decided by the appropriate assessing officer of the Supreme Court, under the scale of costs provided by law for proceedings in the Supreme Court.

WHITE J

JUSTICE OF THE SUPREME COURT

RP SCOTT

MEMBER OF THE LAND COURT

CAC MacDONALD

MEMBER OF THE LAND COURT