Queensland Railways v Somerville Funerals Pty Ltd

[1995] QLAC 25

[1995] QLAC 25

 

  LAND APPEAL COURT

BRISBANE

Re:     Appeal from a decision of the Land Court
  determining compensation on resumption of
  land for Railway purposes (A91-55).

Queensland Railways  (Appellant)
  v.
  Somerville Funerals Pty Ltd  (Respondent)

JUDGMENT ON APPLICATION FOR COSTS

Delivered at Brisbane this Twenty-eighth day of April 1995.

This is an application for costs by Queensland Railways (the appellant) arising from the hearing and determination of compensation payable by the appellant to Somerville Funerals Pty Ltd (the respondent) as a consequence of the taking by the appellant of certain land in the ownership of the respondent under the provisions of the Acquisition of Land Act 1967 (the Act) for Railway purposes.
           In the lower Court the respondent finally claimed a sum of $2,389,468 (inclusive of $4,863 for legal and valuation fees incurred in the preparation and lodgment of the claim).  The amount of the valuation finally put in evidence by the appellant constructing authority was $560,000.  The learned Member in the lower Court awarded compensation in the sum of $1,680,000 (including the sum of $4,863 for legal and valuation fees).  In the exercise of the discretion vested in him under s.27 of the Act he ordered that the appellant pay the respondent's costs of and incidental to the hearing of the matter.  The appellant appealed the decision and stated in the Notice of Appeal, inter alia, as follows:-

"17.The order of the learned Member that the respondent pay the claimant's costs of and incidental to the proceedings in the Land Court was, in all the circumstances, unreasonable and/or ought not to have been made.

The appellant exercises its rights to a rehearing before the Land Appeal Court to commence its case de novo and to give evidence on the appeal in the same manner as is prescribed with respect to matters heard and determined by the Land Court.  "

In the hearing of the appeal the appellant conducted the case de novo and the respondent in general called matching expert witnesses. 
           This Court has ordered that compensation be paid in the sum of $942,363 (including the aforementioned sum for legal and valuation fees).  Counsel for the appellant seeks costs of and incidental to the appeal and submits that the order as to costs made in the lower Court should be set aside and no order made.  Counsel for the respondent submits that the order made below should stand and that no order be made with respect to costs of the appeal. 
           The exercise of the discretion vested in the learned Member in the lower Court is governed by sub-s.(2) of s.27 of the Act which reads insofar as is relevant as follows:-

"If the amount of compensation as determined is the amount finally claimed by the claimant in the proceedings or is nearer to that amount than to the amount of the valuation finally put in evidence by the constructing authority, costs, if any, shall be awarded to the claimant; otherwise costs, if any, shall be awarded to the constructing authority."

It is quite clear that the section authorised the learned Member to exercise his discretion in favour of the respondent if on the merits he was that way inclined.
           In respect of proceedings in the Land Appeal Court s.44(16) of the Land Act 1962 provides:-

"The Land Appeal Court may make such order as it thinks fit as to the costs of and incidental to an appeal ... and may rescind confirm or modify any order as to costs made by the Land Court.  "

The powers and functions of this Court governing the hearing and determination of the appeal may be taken from Maltry v. Commissioner of Main Roads (1980-81) 7 QLCR 134 in which the Land Appeal Court at p. 137 said:

"The appeal before this Court is by way of re-hearing.  'The Land Appeal Court may hear and determine any question which arises in the course of the appeal, including any question so arising which was not brought before or considered by the Land Court or which was not contained in any prescribed Notice but in such case any party to the proceedings shall be entitled to an adjournment upon such terms and conditions as the Land Appeal Court thinks fit.' - section 44(13) of the Land Court.  The respondent made no application for an adjournment.

The appeal before us is in the nature of a general appeal - a re-trial.  Old evidence may be relied on and reconsidered or new evidence adduced.  There is no limit imposed on the Court's powers and functions in this regard - The Queen v. Rigby 100 C.L.R. 146 at p.150. Appellants are thus not bound to adhere in compensation cases to their grounds of appeal.

Our functions are inquisitorial and we are required to consider all the evidence placed before us in order to arrive at our own independent judgment of the amount of compensation to which the claimants are entitled and which we have a statutory duty to find and determine. "

In that case the Court allowed the appeal, set aside the decision of the lower Court including its order as to costs and made no order for costs. 
           In doing so the Court acted on the general principle that once it is seized of the merits of the case on appeal it is also seized of the matter of costs in the lower Court.  (See Koorong Ridge Pty Ltd (as trustee) v. The Commissioner of Main Roads (1967) 34 CLLR 77:  Highfield Farms Pty Ltd v. The Council of the Shire of Pine Rivers: Lawnton Developments v. The Council of the Shire of Pine Rivers (1976) 3 QLCR 364). Any doubts that may have existed on the matter in the past would appear to us to have been removed when s.44(16) was amended in 1981 (Land Act and Another Act Amendment Act 1981 No 21) to include the words "and may rescind confirm or modify any order as to costs made by the Land Court".
           Thus it seems to us as a general statement that it matters not whether the evidence (or principles) which swayed this Court to come to the conclusion it reached was or was not called in the lower Court.
           In the subject case the appellant made use of the statutory provisions enabling the calling of fresh evidence.  The respondent although not a cross-appellant took advantage of the procedures and in effect ran its case de novo contending at the end of the day that compensation payable should be of the order of $2.8 million.  This sum however was not the only estimate of compensation advanced on behalf of the respondent.  Nor was the sum of $560,000 contended for by the appellant in the Court below and again at the commencement of proceedings before this Court the only estimate of compensation put before the Court on its behalf.  Using the highest and best estimates put before the Court by witnesses for the appellant it was finally submitted that compensation should be of the order of $700,000.
           Principles which assist the Court in the exercise of the discretion are well known and need not be repeated - see Moyses and Ors v. Townsville City Council (1979) 6 QLCR 27. Neither party could point to any exceptional circumstances which would warrant a departure from the application of these general principles.
           We agree with counsel for the appellant that the appropriate order with respect to proceedings in the lower Court is that the parties should bear their own costs.   However, we are unable to find any reasonable grounds to deny the appellant costs of the appeal. 
           We set aside the order for costs made in the Land Court and make no order in lieu of the order so set aside.
           It is ordered that the respondent pay the appellant's costs of the appeal.  The amount of such costs shall be ascertained and fixed by the Cost 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 and in accordance with the provisions of s.44(16) of the Land Act 1962.

(Signed)  AMBROSE J.
  JUSTICE OF THE SUPREME COURT

(Signed) DM WHITE
  PRESIDENT OF THE LAND COURT

(Signed) RE WENCK
  MEMBER OF THE LAND COURT