Pott v The Commissioner for Railways; Hermann v The Commissioner for Railways

[1989] QLC 12

[1989] QLC 12

 

  LAND COURT,

BRISBANE.

10th October, 1989.

Re:  Claims for compensation

(A89-17 and A89-18)
  Edmund Douglas Pott
  - v -
  The Commissioner for Railways

(A89-19 and A89-20)
  Peter Ulrich Conrad Hermann
  - v -
  The Commissioner for Railways

DECISION ON APPLICATION FOR COSTS

In a judgment handed down on 3rd August, 1989 compensation was determined in respect of the above claims.  I granted to the respondent, the Commissioner of Main Roads, leave to make application for orders for cost if he so desired. 
               A written application for such an order for costs accompanied by submissions as to why the order should be made was lodged by the Solicitor for the Respondent in the Court on 31st August, 1989.
               On 2nd October, 1989 the Solicitors for the claimants lodged in the Court submissions in writing why the Court should exercise its discretion and decline to make any order for costs.
The power of the Court to award costs in a claim for compensation is contained in Section 27 of the Acquisition of Land Act 1967 - 1986. Subject to the restrictions contained in Section 27 (2) of such Act, costs are in the discretion of the Court. In the subject matters costs may only be awarded to the respondent unless the Court exercises its discretion not to make such an order.
               In the judgment determining compensation when granting leave to the respondent to make an application for an order for costs I said:-

"I have taken note of the fact that substantial works to improve erosion problems were undertaken a short time before the date of the hearing of these matters and such works were still in progress at the date of inspection.  The claimants contend that these are new works which should have formed part of the original works in 1983.  The respondent contends that they are a matter of maintenance.  Whatever view is taken the works are substantial and expensive.  They would support the concern felt by the claimants when the new works were first completed and may well be a justification for pursuing the matters to a hearing.  The parties may care to address this matter in any application and reply."

The Solicitor for the respondent in the submissions on costs properly points out that the claims were far in excess of the amounts finally determined.  It is submitted that the size of the claims were such that the respondent had no option but to resort to litigation and that the disparity between the resuming authority's value and the amount sought by the claimants precluded the possibility of any meaningful negotiation.  He submits that on the evidence before the Court many meetings were held between officers of the resuming authority and the claimants which subsequently led to the installation of larger culverts.  The resuming authority contended at all times that the new works carried out would not alter the before position and in fact would improve the position in flood times.  He further submits that the Court found on the evidence that the claimants' lands were not injuriously affected as a result of the works carried out by the resuming authority and the highest and best use was for agricultural pursuits and not as grazing land.
               The Solicitors for the claimants submit that no offer of settlement or any statement as to the amount the respondent was prepared to pay in settlement of the claims was received up to the time when the matter was lodged in the Court nor was any offer made until the opening of the hearing.  It is submitted that the number of matters which were of concern to the claimants and of which they had complained to the respondent were not rectified or attempted to be rectified until immediately preceding the date of hearing of the claimants' claims.  He submits that the Court has accepted that substantial works to improve erosion problems were undertaken a short time before the hearing and that the nature and timing of the works were such as to lead to the conclusion that, had they not been carried out, serious problems would have resulted.  The cost of the works on the open market indicates the seriousness with which the concern about injurious affection was being regarded by the respondent.  It is their submission that the Court should either award costs to the claimants (perhaps on a limited basis up until they saw some "remedial" work was being undertaken), but as to the balance of the costs, make no order as to costs on the grounds it was necessary to examine the effect and extent of the "remedial" works. 
               Under the provisions of the Act I have no power to make an order in favour of the claimants and it is only a matter for me to consider whether I should exercise my discretion and make no order as to costs. 
               In the judgment I indicated the matter which was concerning me was the significance of the works which were undertaken in 1989 and were in progress at the time of the hearing.  As I have said, these works were of a substantial nature and would give support to the anxiety expressed by the claimants on the prospect of damage to their lands due to erosion and increased flooding.  It well may be that these works would have been undertaken whether the matters had been referred to the Court or not but the carrying out of such remedial works justified in my view the attitude of the claimants in proceeding to litigation.  In the circumstances, I propose to exercise my discretion and make no order as to costs.

President of the Land Court