Re MacTIERNAN
[2004] WASCA 262
•17 NOVEMBER 2004
RE MacTIERNAN; EX PARTE ABERDEEN NOMINEES PTY LTD & ORS [2004] WASCA 262
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 262 | |
| Case No: | CIV:2476/2003 | 16 SEPTEMBER 2004 | |
| Coram: | STEYTLER J TEMPLEMAN J MILLER J | 17/11/04 | |
| 26 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | ABERDEEN NOMINEES PTY LTD (ACN 008 849 527) TALIA NOMINEES PTY LTD (ACN 008 849 518) COASTAL ESTATES PTY LTD (ACN 008 679 276) CASPAR PTY LTD (ACN 008 688 293) MINISTER FOR PLANNING AND INFRASTRUCTURE |
Catchwords: | Costs Order nisi for writ of mandamus Proceedings unnecessary Whether conduct of respondent so unreasonable as to justify order for costs against her Turns on own facts |
Legislation: | Land Administration Act 1997 (WA), s 207, s 218, s 220(b), s 241(6) |
Case References: | Grundy v Lewis [1998] FCA 563 Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333 Minister for the Environment v Florence (1979) 21 SASR 108 O'Neill v Mann [2000] FCA 1680 R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 R v Gold Coast City Council; Ex parte Raysun Pty Ltd [1971] QWN 13 Re the Minister for Immigration and Ethnic Affairs (Cth); Ex parte Lai Qin (1997) 186 CLR 622 Re The Minister for Immigration and Ethnic Affairs; Ex parte Qin (1997) 186 CLR 622 Scott v Handley [1999] FCA 404 Tooth v Brisbane City Council (1928) 41 CLR 212 Byrne v Victorian Railways Commission (1892) 18 VLR 671 Cordell v Housing Commission [1948] VLR 257 March v City of Frankston [1969] VR 350 Melwood Units Pty Ltd v Commissioner of Main Roads (1976) 37 LGRA 355 Mobbs v Valuer-General (1922) 6 LGR 73 O'Neill v Mann [2000] FCA 1680 Smith v Shire of Eltham [1977] VR 133 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : RE MacTIERNAN; EX PARTE ABERDEEN NOMINEES PTY LTD & ORS [2004] WASCA 262 CORAM : STEYTLER J
- TEMPLEMAN J
MILLER J
ABERDEEN NOMINEES PTY LTD (ACN 008 849 527)
TALIA NOMINEES PTY LTD (ACN 008 849 518)
COASTAL ESTATES PTY LTD (ACN 008 679 276)
CASPAR PTY LTD (ACN 008 688 293)
Applicants
Catchwords:
Costs - Order nisi for writ of mandamus - Proceedings unnecessary - Whether conduct of respondent so unreasonable as to justify order for costs against her - Turns on own facts
Legislation:
Land Administration Act 1997 (WA), s 207, s 218, s 220(b), s 241(6)
(Page 2)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicants : Mr D W McLeod
Minister for Planning
and Infrastructure : Mr K M Pettit SC & Mr D J Matthews
Solicitors:
Applicants : McLeods
Minister for Planning
and Infrastructure : State Solicitor
Case(s) referred to in judgment(s):
Grundy v Lewis [1998] FCA 563
Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333
Minister for the Environment v Florence (1979) 21 SASR 108
O'Neill v Mann [2000] FCA 1680
R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389
R v Gold Coast City Council; Ex parte Raysun Pty Ltd [1971] QWN 13
Re The Minister for Immigration and Ethnic Affairs (Cth); Ex parte Lai Qin (1997) 186 CLR 622
Scott v Handley [1999] FCA 404
Tooth v Brisbane City Council (1928) 41 CLR 212
(Page 3)
Case(s) also cited:
Byrne v Victorian Railways Commission (1892) 18 VLR 671
Cordell v Housing Commission [1948] VLR 257
March v City of Frankston [1969] VR 350
Melwood Units Pty Ltd v Commissioner of Main Roads (1976) 37 LGRA 355
Mobbs v Valuer-General (1922) 6 LGR 73
O'Neill v Mann [2000] FCA 1680
Smith v Shire of Eltham [1977] VR 133
(Page 4)
1 STEYTLER J: I have had the considerable advantage of reading, in draft, the judgments of Templeman J and Miller J. Each has set out the facts and circumstances giving rise to this application for costs and also the applicable legal principles. There is no need for me to repeat them except insofar as is necessary for me to explain my own conclusion.
2 The question for decision comes down, essentially, to that of whether or not the respondent Minister has been shown to have acted unreasonably in exercising or refusing to exercise a power, leaving the applicants with no reasonable alternative but to commence and continue their application until good sense prevailed: R v Gold Coast City Council; Ex parte Raysun Pty Ltd [1971] QWN 13; Re The Minister for Immigration and Ethnic Affairs (Cth); Ex parte Lai Qin (1997) 186 CLR 622 at 624 - 625. If she did, as counsel for the applicants contends, then the applicants should have their costs. If she did not, as counsel for the respondent contends, then both sides agree that there should be no order as to costs (save that the respondent would then want her costs of the argument about costs).
3 The principal application was, as the other judgments explain, one for prerogative relief requiring the respondent to extend time for the making of a claim for compensation for injurious affection and severance damage to the land described as Lot 1, arising out of the resumption by the respondent of land adjacent to it.
4 The applicants had, in good time, brought a claim for compensation against the Minister arising out of the taking of the resumed land, including a claim for injurious affection of its adjacent land. Because the parties could not agree upon the amount of compensation to be paid, the applicants issued a writ against the Minister. However, for reasons which have been explained in the other judgments, both parties arrived at the opinion that the applicants had mistakenly failed to include, in their claim, Lot 1 as part of the land which had been adversely affected by the resumption.
5 The applicants tried, first, to obtain the Minister's consent to an amendment to their claim so as to include a claim for compensation in respect of the effect of the resumption on the value of Lot 1. The Minister would not consent. She relied on advice from the State Solicitor's Office to the effect that the provisions of s 218 of the Land Administration Act 1997 effectively precluded her from doing so. That led to the request by the applicants for an extension of time within which to bring a claim in respect of Lot 1 only. It took the Minister some three and a half months to
(Page 5)
- respond. When she did, she said (again relying upon legal advice) that s 218 of the Act stood in the path of the applicants' request. She also said that she had received advice that, in any event, it was extremely doubtful that the applicants "would be entitled to claim injurious affection and severance for … [Lot 1]".
6 On 3 September 2003 the applicants asked the Minister to reconsider her decision. Eventually, she did so. The outcome was unfavourable to the applicants. By letter dated 11 December 2003 she said, in effect, that she had received advice that, having regard for the provisions of the Act, she should not agree to an extension of time or to an amendment of the existing claim. She also repeated that she had received advice to the effect that the applicants' claim appeared to have no substance in any event.
7 On 3 December 2003, the applicants, seemingly having anticipated the Minister's response, issued a notice of originating motion for prerogative relief in the form of a writ of mandamus.
8 The applicants' solicitors, McLeods, had struck a similar problem in another matter. Another client, Acacia Brook Pty Ltd, had made a claim for compensation following the resumption of some of its land, but omitted to claim damages for injurious affection and severance in respect of its adjacent land. There, too, the Minister refused to grant an extension of time for the purpose of bringing that additional claim. However, this time McLeods, by letter dated 17 November 2003, gave notice to the State Solicitor that they would bring proceedings seeking a declaration that, on the proper construction of the Act, "the power of the Court to make an award of compensation, once proceedings have been commenced, is unfettered by the amounts or description of the matters on account of which compensation is claimed included in or omitted from a claimant's claim for compensation".
9 Unlike the applicants in these proceedings, Acacia Brook Pty Ltd had not yet commenced an action for compensation. By letter dated 24 June 2004 the State Solicitor said that, should it do so, the defendant in those proceedings (this would be the Commissioner for Main Roads) "would not plead or submit that the power of the Court to make an award of compensation is fettered by the amounts or description of the matters on account of which compensation was claimed in the claim submitted to the Commissioner". The letter went on to say that "The revised claim would be set out in the claimant's statement of claim and the elements of the claim would be treated on their merits".
(Page 6)
10 Some two to three weeks later the Minister made a similar concession in these proceedings. The State Solicitor proposed that:
"The plaintiffs should proceed in their action for compensation upon an assurance from my client that, in an action under section 220(b) … [of the Act] my client will not plead or submit that the power of the Court to make an award of compensation is fettered by the amounts or description of the matters on account of which compensation is claimed, included in or omitted from the plaintiffs' (claimants') claim for compensation lodged pursuant to Part 10 division 2 of the … [Act]."
11 That proposal was accepted by the applicants to the extent that they agreed, in reliance upon the concession, to withdraw their application for a writ of mandamus. However, they wanted the Minister to pay the costs of the application. She would not do so. Hence, we have this application.
12 Is there anything in the Minister's conduct which might be characterised as unreasonable so as to warrant the making of a costs order against her? The applicants contend that there is. They argue that they had to bring their application for prerogative relief because of the Minister's intransigence, over a long period of time, as a result of her mistaken view of the operation of the relevant provisions of the Act. They also argue that, because (on one view at least) no claim for compensation had been brought in respect of Lot 1, there was a substantial risk that a court would not, in their action commenced by writ, make a declaration (or reach a conclusion) in terms similar to that sought in the Acacia proceedings. They contend that, that being so, it would have been imprudent of them to abandon the application for prerogative relief absent a concession of the kind which was ultimately made by the Minister.
13 In my respectful opinion, none of this, even if correct, discloses unreasonableness on the part of the Minister sufficient to warrant the making of a costs order against her. Her position in respect of the application for an extension of time was arrived at on the strength of legal advice which, so far as I can see, has never been departed from. Whether that advice was right or wrong (a question which it is unnecessary to decide), in my opinion it was not unreasonable for her to have relied upon it. Also, importantly, the Minister was under no obligation to make the concession which led to the resolution of the proceedings for prerogative relief. While the applicants contend that she was "forced" to do so because of the threat of the Acacia proceedings, that seems to me to be an overstatement. Indeed, counsel for the applicants himself said that, absent
(Page 7)
- the concession, there was no guarantee that a court would, in the applicants' action, make a declaration (or reach a conclusion) of the kind sought in the Acacia proceedings. As I have said, he put that up as one of the justifications for pursuing a claim for prerogative relief.
14 In all of these circumstances, even allowing for the considerations peculiar to the Minister which have been referred to by Templeman J and also for the fact that there has been a good deal of delay on her part, I am not persuaded that the Minister's conduct has been so unreasonable as to warrant an order for the payment, by her, of the costs of the proceedings for prerogative relief. I would consequently dismiss the application for costs and award to the Minister the costs of that application, to be taxed.
15 TEMPLEMAN J: The applicants seek the costs of their application for a writ of mandamus against the Honourable Alannah MacTiernan MLA, the Minister for Planning and Infrastructure ("the Minister") despite the fact that they wish to discontinue that application.
16 The applicants say that the application for mandamus became necessary because the Minister acted unreasonably in relation to their claim for compensation, following the compulsory acquisition of their land. The applicants no longer require mandamus because the Minister has proposed a settlement which places them in the position they sought to achieve.
17 The applicants were the registered proprietors of some 139 hectares of land near Dawesville, south of Mandurah. On 9 November 1999, some 7.7 hectares of the land was taken by the Minister for Transport for works associated with the realignment of the Perth-Bunbury Highway. This resulted in the severance of other land registered in the applicants' name.
18 The severed land included a parcel described in the papers as "Lot 1" which, on 31 March 1998, the applicants had contracted to sell to Chamonix Holdings Pty Ltd ("Chamonix").
19 However, settlement did not take place under the Chamonix contract until 6 April 2000. That is why the applicants remained the registered proprietors of Lot 1 as at the taking date and were therefore prima facie entitled to claim compensation.
20 On 9 January 2001, the applicants delivered to the Minister for Transport a claim for compensation arising out of the taking of part of their land. The claim related not only to the 7.7 hectares taken. It
(Page 8)
- included a claim for land adjacent to that taken which had been reduced in value by reason of the severance.
21 In Schedule A of the applicants' claim the land taken was described as:
"That part of portion of Murray Location now contained in Plan 23775 and being part of the land comprised in Certificate of Title Volume 2030 Folio 531 and comprising an area of 7.7157 hectares."
22 The adjacent land, which was said to have been reduced in value is described in Schedule C in the following way:
"That portion of Murray Location 1036 excluding the portion now contained in Plan 23775 and being the remainder land contained in Certificate of Title Volume 2030 Folio 531."
23 It is to be noted that this description included all of the land of which the applicants were then the registered proprietors, including Lot 1.
24 In Schedule D to the claim, the applicants set out their interest in the adjacent land: that is, the land described in Schedule C. The applicants said they were the owners in fee simple as tenants in common in equal shares "subject to the excision of … Lot 1 …."
25 The applicants were in error in excluding Lot 1 from Schedule D. As I have noted above, they remained the registered proprietors of that lot even though they had contracted to sell it.
26 Following an unsuccessful attempt to negotiate a settlement of their compensation claim, the applicants commenced proceedings. They did so by a writ filed on 10 March 2003 endorsed with a statement of claim. The defendant was named as "Main Roads, WA".
27 In par 8 of their statement of claim, the applicants referred to their contract with Chamonix whereby they had contracted to sell Lot 1 but had retained the right to claim and be paid compensation.
28 On 3 April 2003 a defence to the applicants' claim was filed on behalf of the Minister for Transport, the Minister being the appropriate defendant. (The Transport and Planning portfolios have since been combined in the Ministry for Planning and Infrastructure).
(Page 9)
29 In par11 of the Minister's defence it was admitted that the applicant had made a claim for compensation. However, the Minister contended:
" … that the land in respect of which the said Claim was made did not include the land described as Lot 1 …."
30 That contention was presumably founded on the wording of Schedule D, which I have set out above. However, the Minister has now adopted a different position. In this application she contends that Lot 1 was not omitted from Schedule C to the applicants' original claim and was arguably not omitted at all: see outline of submissions dated 15 September 2004 filed on behalf of the Minister, par [13]. However, faced with the original denial, it was clearly prudent for the applicants to take steps to safeguard their position.
31 On 24 April 2003 the applicants' solicitors, McLeod & Co ("McLeods") wrote to the Acting Acquisition Manager of the Main Roads Department. McLeods referred to the applicants' compensation claim dated 8 January 2001. They said:
"We note that in Schedule C, there is an erroneous exclusion of the portion of the subject land [ie Lot 1]. It is necessary to amend the claim for compensation by deleting those words and a copy of the amended claim is enclosed herewith. Please advise whether you are content to accept and deal with the claim in this form or whether it is necessary for our client to make application to the Minister for an extension of time to make a claim in respect of this land." (AB 34)
32 Schedule C to the proposed amended claim for compensation was in the following terms:
"That portion of Murray Location 1036
33 On any view, McLeods were in error in reformulating Schedule C in that way. Schedule C was not the problem. It was Schedule D which required amendment.
34 The response to McLeod's letter came from the Senior Assistant Crown Solicitor ("the Crown Solicitor"). In a letter dated 30 April 2003, he said:
(Page 10)
- "I am instructed to inform you that my client does not accept the amended claim and in this regard, to refer you to s 218 of the Land Administration Act 1997." (AB 41)
35 Section 218 of the Land Administration Act 1997 ("the Act") provides:
"At any time before a claim for compensation is settled in full, if proceedings for determination of the amount of compensation have not been commenced in any court, the claimant may with notice to the acquiring authority amend the claim only as to the amount claimed and the authority may with notice to the claimant amend the offer of compensation." (my emphasis)
36 The Crown Solicitor's response was entirely consistent with the Minister's earlier position: that the applicants had not made a claim in respect of Lot 1.
37 Faced with that response, a Director of the applicants, Mr John Perry, wrote to the Minister on 1 May 2003. Mr Perry said that the applicants had not obtained legal advice when making their claim for compensation and that an error had been made in Schedule C in that:
"Land of which we were registered proprietors comprising 18.2703 ha on Plan 23263 was, in error, excluded from the description of land affected by injurious affection and severance and of course for which we were claiming compensation.
We have served upon Main Roads Western Australia a copy of an amended plan for compensation including the missed land, but this has been rejected and we therefore have no alternative but to ask the Honourable Minister for an extension of time within which to make a late claim in respect of the injurious affection and severance suffered by the 18.2703 ha. We enclose a copy of the amended claim.
The circumstances in which this land was omitted from the claim have been described above and the error was an honest one. We would be grateful if the Minister could therefore exercise her discretion and grant the extension of time." (my emphasis) (AB 42)
38 Again, the applicants, through Mr Perry, were in error in asserting that the problem with their claim lay within Schedule C. After what was,
(Page 11)
- with respect, an extraordinarily long delay of over 3½ months, the Minister replied to Mr Perry on 18 or 19 August 2003.
39 Referring to Mr Perry's letter of 1 May 2003, the Minister said:
"I have sought extensive legal advice on this matter which indicates the Land Administration Act (s 218) is very specific in relation to matters such as these and provides amendments to be made only to the amount of the claim. I am advised that additional heads of claim cannot be added.
As a claimant I understand that you have commenced action to address the claim for compensation in the Supreme Court. In this respect I am advised that as the severed land was the subject of a contract for sale to an unrelated party prior to the Notice of Intention to Take, it is extremely doubtful that you would be entitled to claim injurious affection and severance for the land that you are now attempting to include in the claim.
On this basis, I regret I am unable to be of any assistance." (AB 43)
40 Three points arise from the Minister's letter. First, it appears that the error in Mr Perry's letter had still not been detected by the Minister or the Crown Solicitor.
41 Secondly, the Minister did not deal with Mr Perry's request. The applicants' attempt to amend their claim having been rejected on the basis that no claim had been made in respect of Lot 1, they now sought an extension of time in which to bring such a claim. Thus, although Mr Perry had not said so in his letter, he was, in substance, asking the Minister to exercise her discretion pursuant to s 207(2) of the Act. Section 207(1) imposes a time limit of six months from the registration of a taking order within which a claim for compensation may be made. Section 207(2) provides:
"The time limit (whether it has expired or not) under this section may, on the application of a person who wishes to make a claim, be extended if the Minister is satisfied that the application is reasonable and made in good faith."
42 Thirdly, the point about the Chamonix contract referred to in the Minister's letter had already been taken in the Defence to the applicants' claim; at least in the sense that the applicants' contention that they retained
(Page 12)
- the right to claim and be paid compensation in respect of Lot 1 had been denied. That aspect of the defence was presumably based on the decision of the High Court in Tooth v Brisbane City Council (1928) 41 CLR 212. It is not necessary to consider that issue for present purposes.
43 On 3 September 2003 McLeods responded to the Minister's letter to Mr Perry. McLeods referred to the request for an extension of time to present a claim in respect of Lot 1 "for which no claim has been made as yet". The letter continued:
"We note the advice given to the Minister but must respectfully disagree. This is a case in which no claim has yet been made in respect of the injurious affection/severance suffered to this piece of land. It is not a question of amending the existing claim. It is a question of facilitating the making of a claim by our clients in respect of this piece of land. Without that permission, it is possible that no claim can be made by any party for this piece of land and consequently the government will find itself in a position of not having to pay compensation as a consequence of the refusal to grant leave even though the land has been injuriously affected by the taking. This is plainly an inequitable result and one that may not have occurred to the Minister.
In these circumstances, we would respectfully ask the Minister to reconsider her decision." (AB 44)
44 Again, McLeods assertion that no claim had been made in respect of Lot 1 reflected the basis on which both parties were proceeding.
45 McLeods requested a response to their letter within 14 days. By 17 September 2003 no reply had been received. McLeods wrote again on that day to inform the Minister that they had the applicants' instructions "to issue a prerogative writ which will challenge the reasonableness of the Minister's decision" (AB 46).
46 There was still no response by 12 November 2003. McLeods wrote again on that date. In relation to the second point made by the Minister in her letter dated 18/19 August 2003, McLeods enclosed a copy of the contract between the applicants and Chamonix and a copy of a Deed of Assignment whereby the right to compensation had been assigned to the applicants. The letter continued:
(Page 13)
- "We further believe that the Minister is operating under a mistake of law when she relies upon section 218 of the Land Administration Act 1997. Although we would dispute Crown Law's interpretation of this section in that, in our opinion, section 218 has no application once proceedings have been issued to displace the plenary power of the Court, the more important focus is upon the fact that there has not, as yet, been a claim for compensation in respect of the injurious affection and severance suffered by the land which is the subject of the two enclosed deeds. Consequently, it is not a question of there being an amended claim but of there being a claim in respect of this land which has not yet been submitted. It is for that that we seek the Minister's consent for late submission." (AB 47)
47 McLeods went on to say that it was not practical for their clients to proceed with the litigation on the basis that the Court would ultimately decide the question of its jurisdiction to award compensation in respect of Lot 1. The reason advanced was that there would be "significant costs involved in preparing hypothetical development for a 'before and after' scenario and it is plainly important that this issue should be resolved at this stage" (AB 48).
48 On 11 December 2003, after a further long delay, the Minister replied to McLeod's letters of 3 and 17 September and 12 November. The Minister said:
"Your clients' contract has been perused by the Crown Solicitor's Office and the observation made that clause 7 relates to the rights of the purchaser, Chamonix Holdings Pty Ltd, to compensation. I understand Chamonix has not claimed compensation, and as none of its land was compulsorily taken, it appears unlikely to have had an entitlement to compensation. Hence it is difficult to understand how your clients could have acquired any additional rights by way of assignment.
I remain of the view that the course I have adopted previously in this matter is consistent with my powers under the Land Administration Act 1997 ("the Act") and decline to extend the time for the making of a new claim which relates solely to injurious affection which it has been asserted has been incurred incidental to a taking which in turn is the subject of an existing claim.
(Page 14)
- Similarly I consider that a direct amendment of the existing claim to add an additional basis of claim (as distinct from amending the amount of the claim only) is not permitted by the terms of section 218 of the Act."
49 The first of the paragraphs set out above reflects an error on the part of the Crown Solicitor's Office. It was true that Chamonix had not claimed compensation. However, it had no entitlement to do so because at the material time the applicants were the registered proprietors.
50 The Minister's response to the application for an extension of time in which to make a claim in respect of Lot 1 appears to have proceeded on the basis that a claim for injurious affection could not stand alone. Of course, such a claim could only be made in respect of land affected by the compulsory acquisition of other land. However, in my view, the statutory framework permits separate claims to be made in respect of land acquired compulsorily and land affected by that acquisition. The provisions for making a claim are contained in s 211 of the Act. It is in the following terms:
"(1) A claim for compensation under this Part must be in an approved form, stating -
(a) the particulars identifying the land in respect of which the claim is made;
(b) the nature and particulars of the claimant's interest in the land;
(c) if the land or the interest is charged, leased, or subject to any easement - particulars of the charge, lease, or easement;
(d) each matter on account of which compensation is claimed, with particulars of the nature and extent of the claim; and
(e) the claimant's full name and address for service."
(Page 15)
52 No doubt in anticipation of the Minister's unfavourable response to their application, the applicants had instituted proceedings for a writ of mandamus by notice of originating motion dated 3 December 2003. In the application, the applicants sought an order that the Minister:
"Do show cause why a Writ of Mandamus should not be issued against her to compel her to properly exercise her discretion on the applicants' request under s 207(2) of the … Act for her to extend time for the making of a claim for compensation in respect of the injurious affection and severance damage caused to … Lot 1 … by the taking of 7.7157 hectares for the purposes of the 'Dawesville Deviation' …." (AB 4-5)
- An order in those terms was made by Barker J on 9 December 2003.
53 While these events were unfolding, a similar problem had arisen in two other matters in which McLeods were acting on behalf of claimants for compensation. In one of those matters, Acacia Brook Pty Ltd ("Acacia") had prepared its own claim for compensation following a compulsory acquisition but had omitted to claim damages for injurious affection and severance to its remaining land.
54 In relation to Acacia, the Minister's position was identical to that adopted in the present case: she had declined to grant an extension of time to enable Acacia to make an additional claim.
55 In the Acacia matter, McLeods adopted a different approach. On 17 November 2003, they informed the Crown Solicitor that they had instructions to issue an originating summons seeking a declaration that:
"on the proper construction of the … Act and the particular sections 218 and 241, the power of the Court to make an award of compensation once proceedings have been commenced is unfettered by the amounts or description of the matters on account of which compensation is claimed included in or omitted from a Claimant's claim for compensation" (AB 69).
56 By letter dated 17 November 2003, the Crown Solicitor said that neither the Commissioner for Main Roads nor the Minister were prepared to agree to the declaration. The solicitor said that proceedings would be defended.
57 That being so, Acacia commenced proceedings by originating summons on 8 March 2004.
(Page 16)
58 By letter dated 24 June 2004, the State Solicitor (as the Crown Solicitor had become) wrote to McLeods in relation to Acacia as follows:
"Should the claimant commence an action for compensation in a court of appropriate jurisdiction pursuant to section 220(b) of the (Act), the Commissioner would not plead or submit that the power of the Court to make an award of compensation is fettered by the amounts or description of the matters on account of which compensation was claimed in the claim submitted to the Commissioner. The revised claim would be set out in the claimant's statement of claim and the elements of the claim would be treated on their merits." (AB 117) (my emphasis)
59 There was clearly a significant difference between the Acacia case and the present case in that Acacia had not commenced proceedings before it requested the Minister to grant an extension of time pursuant to s 207 of the Act.
60 Despite the difference between the two sets of proceedings, the State Solicitor wrote to McLeods on 12 July 2004 in relation to the mandamus application, in the following terms:
"1. The plaintiffs should proceed in their action for compensation upon an assurance from my client that, in an action under section 220(b) [the Act], my client will not plead or submit that the power of the Court to make an award of compensation is fettered by the amounts or description of the matters on account of which compensation is claimed, included in or omitted from the plaintiffs' (claimants') claim for compensation lodged pursuant to Part 10 division 2 of the [the Act].
2. The application for a writ of mandamus should be withdrawn.
3. The parties should bear their own costs in relation to the application." (AB 123)
61 In response to that letter, McLeods sought a contribution to their clients' costs in relation to the mandamus application. That was rejected by the Minister, through the State Solicitor; hence the present application.
62 The Court has a wide discretion in relation to the costs of proceedings which are discontinued. Order 23 r 2(3) provides:
(Page 17)
- "Save as in this Rule otherwise provided, it shall not be competent for the plaintiff to … discontinue the action without leave of the court, but the court may before, or at, or after the hearing or trial, upon such terms as to costs, and as to any other action, and otherwise, as may be just, order the action to be discontinued …."
- By virtue of s 4 of the Supreme Court Act 1935, the mandamus proceedings fall within the meaning of the term "action".
63 The law in relation to costs is set out succinctly in Seaman on Civil Procedure in par [23.2.8]. After referring to the terms of r 2(3) as being "wide enough to enable the court to make any costs order which is required by the justice of the case", the commentary goes on to note that the conduct of the parties in the matter and the reasons for the discontinuance can bear heavily on the exercise of the discretion as to costs: O'Neill v Mann [2000] FCA 1680 at [13]:
"Hence, if the plaintiff obtains leave to discontinue the action in circumstances in which, without trial, he or she has secured from the defendant the relief sought in the proceedings, the court has the power to order the defendant to pay the plaintiff's costs of the proceedings. If, however, the plaintiff discontinues because he or she cannot succeed, the plaintiff may be granted leave on terms that he or she pays the defendant's costs of the action: Garwolin Nominees Pty Ltd v Statewide Building Society [1984] VR 469 at 472. If both parties acted reasonably in commencing and defending the proceedings and continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the costs discretion will usually mean that the court will make no order as to the costs of the proceedings: Re Minister for Immigration and Ethnic Affairs; ex parte Laiqin (1997) 186 CLR 622 at 624, 625."
64 The applicants contend that they acted reasonably in commencing the mandamus proceedings and that the Minister acted unreasonably in her dealings generally with this matter.
65 The Minister contends that she should not have to pay the costs of the mandamus proceedings because the application for mandamus was always unnecessary. First, it is contended that the mandamus question could have been decided in the substantive application for compensation. The Minister relies on her letter of 23 February 2004 to McLeods, written
(Page 18)
- after the order nisi for a writ of mandamus had been obtained. The Minister said:
"Regardless of the merits of your clients' claim for injurious affection or the proper measure of their loss, which are more appropriately addressed in the proceedings for determination of the claim already commenced, I am nonetheless confined in my ability to act by the terms of Section 207 of the Land Administration Act 1997." (AB 77)
I assume the reference to s 207 of the Act to be an error. In any event, the Minister's position, as set out in her Defence, was that the applicants' claim in respect of Lot 1 could not be pursued in the action.
66 It is true that in the correspondence, McLeods referred to the mandamus application as being, in substance, a preliminary point in the substantive action. In a sense it was a preliminary point. However, it was a point which needed to be resolved before the substantive action proceeded. That is because, as McLeods made plain in their correspondence with the Minister, it would have been necessary to prepare the case on different bases depending on the outcome of the preliminary point. This would have been costly and inefficient.
67 Secondly, the Minister relies on the fact that McLeods were mistaken in believing that Schedule C of the applicants' original claim for compensation contained an error, whereas, the error lay in Schedule D.
68 McLeod's mistake was the subject of correspondence between them and the State Solicitor between April and June 2004. In relation to the proposed amended Schedule C, his letter to McLeods dated 23 April 2004 said:
"It is impossible to see how on any view the deletion of those words can result in Lot 1 … being included in the claim." (see exhibit HJS3 to the affidavit of Hilton John Somerville sworn 3 September 2004).
- It took some time for McLeods to appreciate this point. When they did so, they admitted to being "somewhat obtuse". However, as they rightly pointed out in a letter dated 4 June 2004 to the State Solicitor, the Minister could hardly have been under any misapprehension as to the real point. Further, it seems that McLeod's mistake only came to light at a late stage, after senior counsel was retained by the State.
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69 Thirdly, the Minister relies on her offer to settle the mandamus proceedings as proposed in her letter dated 12 July 2004 which I have set out above. It will be recalled that the Minister proposed that the compensation action should proceed on the basis that the Minister would not take the point that the amount of compensation claimed in the action would not be fettered by the way in which the original claim had been made.
70 In my view, it is irrelevant that the Minister came to her present position in this action only as a result of the acceptance of a similar proposal in the Acacia matter. The fact is that as a result of the proposal put to McLeods on 12 July 2004, the mandamus action became unnecessary. The application became unnecessary because, as a result of the Minister's proposal, the applicants were in the same position as they would have been had the Minister granted an extension of time pursuant to s 207 of the Act.
71 In my view, the applicants acted reasonably in making the mandamus application. There was, I think, for the reasons set out above, a strong argument that the Minister mis-exercised her discretion by contending that s 218 of the Act was relevant to applications made under s 207. I accept that the Minister was acting under advice at the material time when she took a contrary view. However, I think the Minister was persuaded by that advice to adopt an unreasonable position.
72 There are two other important considerations in this context. The first is that this is not a dispute between subject and subject: it is a claim for compensation for land acquired compulsorily. In Minister for the Environment v Florence (1979) 21 SASR 108, at p 134, in a passage which has been applied frequently, Wells J noted that compulsory acquisition cases differ from ordinary claims in that "the claimant, unlike the ordinary plaintiff, had no choice whether to make a claim or not; the mere acquisition by compulsory process gave him … a claim to compensation which he could hardly be expected to renounce." His Honour went on to say that in compensation cases "the claimant ought, in the absence of special circumstances, to receive his reasonable costs of obtaining the compensation that is, ex hypothesi, his due …." In my view, the costs of the mandamus application fall into that category.
73 The second consideration is that the Minister is expected to conduct herself as a model litigant. In Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333 at 342, Griffith CJ, in a passage which
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- applies as much to State agencies as it does to those of the Commonwealth said:
"I am sometimes inclined to think that in some parts – not all – of the Commonwealth, the old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects, which I learned a very long time ago to regard as elementary, is either not known or thought out of date. I should be glad to think that I am mistaken."
"Insistence upon that standard is a recurrent theme in judicial decisions in this country in relation to the conduct of litigation by all three tiers of government: see eg Yong v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 155 at 166; Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 at 196-197; SCI Operations Pty Ltd v Commonwealth of Australia (1996) 69 FCR 346 at 368; Director of Public Prosecutions (Cth) v Saxon (1990) 28 NSWLR 263 at 267; Kenny v State of South Australia (1987) 46 SASR 268 at 273; Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537 at 558-559; P & C Cantarella Pty Ltd v Egg Marketing Board (NSW) [1973] 2 NSWLR 366 at 383-384; see also R v Tower Hamlets London Borough Council, Ex parte Chetnik Developments Ltd [1988] 1 AC 858 at 876-877.
As with most broad generalisations, the burden of this fair dealing standard is best appreciated in its particular exemplifications in individual cases. The courts have, for example, spoken positively of a public body's obligation of 'conscientious compliance with the procedures designed to minimise cost and delay': Kenny's case, above, at 273; and of assisting 'the court to arrive at the proper and just result': P & C Cantarella Pty Ltd v Egg Marketing Board, above, at 383. And they have spoken negatively, of not taking purely technical points of practice and procedure: Yong's case, above, at 166; of not unfairly impairing the other party's capacity to defend itself: Saxon's case, above, at 268; and of not taking advantage of its own default: SCI Operations Pty Ltd, above, at 368."
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75 In the present case, I think, with respect, that the Minister fell short of the "fair dealing standard". As appears from the correspondence to which I have referred above, the Minister delayed unreasonably in dealing with the applicants' request for an extension of time in which to bring a claim in relation to Lot 1.
76 The request was made as a result of an apparent error by unrepresented claimants, who had a clear entitlement to compensation for severance.
77 After the Minister had been asked to reconsider her decision, on the basis that her discretion may have miscarried, the Minister delayed unreasonably in dealing with that request. Having maintained for some 11 months that the applicants could not be permitted either to amend their claim for compensation in relation to Lot 1 or to make an additional claim, the Minister adopted the position in which she should have found herself had the mandamus proceedings been successful.
78 In all the circumstances, I consider that the Minister ought to pay the applicants' costs of the mandamus application, to be taxed.
79 MILLER J: This was the return of an order nisi for a writ of mandamus and an application for declaratory relief. The proceedings had been brought by the applicants against the Minister for Planning and Infrastructure ("the Minister") requiring her to show cause before this Court why a writ of mandamus should not be issued against her to compel her to properly exercise her discretion on a request made by the applicants under s 207(2) of the Land Administration Act 1997 (WA) ("the Act") for her to extend time for the making of a claim for compensation in respect of injurious affection and severance to land. The declaration sought was that the Minister's decision not to exercise her discretion to extend time to the applicants for the making of such a claim for compensation was an unreasonable exercise of her discretion under s 207(2) of the Act.
80 On 9 December 2003, Barker J granted the order nisi on the following grounds:
"(a) the Minister has made an error of law by rely on s 218 of the LA Act in refusing to exercise her discretion to extend time for the submission of a late claim for compensation in respect of Lot 1, because s 218 is irrelevant to the discretion under s 207(2) of the LA Act;
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- (b) the Minister has made a mistake of fact in basing her decision to refuse consent to the Application for an extension of time to make a claim in respect of Lot 1 upon a view that:
(i) there has been a previous claim for compensation relating to Lot 1 which precludes the making of a second claim; and
(ii) the standing of the Applicants to claim compensation in respect of Lot 1 is doubtful;
(c) in the context of the factual matrix described in the supporting affidavit of John David Perry sworn on 1st day of December 2003, the Minister's decision not to exercise her discretion to extend for the making of a claim in respect of Lot 1 or an amended claim to include the claim for Lot 1, is unreasonable."
81 The background to the matter was a Taking Order registered at the Department of Land Administration on 9 November 1999 whereby some 7.715 hectares of land were taken for the purposes of the Dawesville Deviation, thereby severing and allegedly damaging the unresumed portion of certain land of which the applicants were the registered proprietors.
82 On 9 January 2001, the applicants delivered to the Minister for Transport, the acquiring body, a claim for compensation which included a claim for severance and injurious affection under the provisions of s 241(6)(a) and (b) of the Act in respect of damage suffered to land owned by the applicants which had not been resumed. There is a question as to whether a certain parcel of the land, described as Lot 1, was excluded from the claim form as land for which the applicants were claiming damage for severance and injurious affection.
83 The claim which was made was accepted by the Minister for Transport. An offer for compensation and advance payment was made by letter dated 15 January 2002. This offer was rejected and the parties were unable to agree on a mutually acceptable amount of compensation.
84 In the latter part of 2002, the applicants instructed solicitors. They considered there was a difficulty with respect to the claim for compensation because Lot 1 had been omitted from the claim. They thereupon sought to amend the claim. The application was rejected by the
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- then Crown Solicitor's Office who advised the solicitors for the applicants that they should refer to s 218 of the Act. This section provides that at any time before a claim for compensation is settled in full, if proceedings for determination of the amount of compensation have not been commenced in any court, the claimant may, with notice to the acquiring authority, amend the claim only as to the amount claimed and the authority may, with notice to the claimant, amend the offer of compensation.
85 An application was then made to the Minister for an extension of time within which to make a late claim. This application was made under s 207(2) of the Act, which provides that the Minister may, if satisfied that an application is reasonable and made in good faith, extend the time limit of six months from the registration of the relevant Taking Order for the making of a claim for compensation.
86 The Minister responded to this application by advising that s 218 of the Act was specific and provided that amendments could only be made to the amount of a claim and additional heads of claim could not be added.
87 The applicants entered into further correspondence with the Minister, but without success and finally initiated these proceedings.
88 The Court was taken to a substantial volume of correspondence which had passed between the solicitors for the applicants and the Minister and the Minister's legal advisers. The correspondence reveals that, by 12 July 2004, it had become clear that it was unnecessary for the applicants to obtain any extension of time for the making of a claim under s 207 of the Act. Pursuant to the provisions of s 220(b) of the Act, the applicants were entitled to commence an action for compensation against the acquiring authority. It would not be contended on behalf of the Minister for Transport that the power of the Court to make an award of compensation was fettered in any way by "the amounts or description of the matters on account of which compensation is claimed, included in or omitted from the claimants' claim for compensation lodged pursuant to Part X Division 2 of the Act".
89 By letter of 12 July 2004, the Senior Assistant State Solicitor suggested that in these circumstances "the application for a writ of mandamus should be withdrawn" and each party should bear their own costs in relation to the application.
90 This proposal was unacceptable to the applicants, who contend that, by reason of the way in which the matter has been resolved, the Minister
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- should be responsible for the applicants' costs of and incidental to the mandamus and declaratory relief proceedings.
91 The applicants do not proceed with the order nisi or the application for declaratory relief. Had they done so, it is doubtful that any such relief would have been granted. No useful result could ensue from the grant of the relief sought: R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400.
92 The applicants are effectively discontinuing the proceedings because the order nisi needs to be discharged and the application for declaratory relief dismissed. In these circumstances, they would normally be liable for the Minister's costs, unless the Court were to order otherwise. In Grundy v Lewis [1998] FCA 563, Cooper J at 12, set out the relevant principle as follows:
"Although the power to award costs is unfettered, there is, in the Federal Court Rules, an underlying policy that a party who discontinues proceedings is to be held liable for the costs of the other parties, or costs occasioned by that part of the proceedings which is discontinued, unless the court otherwise orders (see for example O 22 r 3, O 62 r 26). There is no reason why a similar approach should not be taken when applications for interlocutory relief, are abandoned. That the costs of a notice of motion for interlocutory injunctive relief which is abandoned or withdrawn, will ordinarily be borne by the original moving party on the notice of motion, is of long standing (see, for example, Kerr on Injunctions, 3rd Ed, (1888) at p33).
In my view the respondents to the notice of motion are entitled to their costs of and incidental to the notice of motion, unless they or any of them has engaged in conduct which ought disqualify them from the benefit of a costs order.
Conduct of a party prior to or during proceedings may result in an otherwise successful party being denied costs: Latoudis v Casey (1990) 170 CLR 534 at 544, 565; Re Elgindata Ltd (No 2) [1992] 1 WLR 1207 at 1214, 1217; Cummings v Lewis (1993) 41 FCR 559 at 603; Oshlack v Richmond River Council (unreported [ 1998] HCA 11 at 58 - 59)."
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93 Reference might also be made to Re The Minister for Immigration and Ethnic Affairs; Ex parte Qin (1997) 186 CLR 622 where McHugh J at 624 said:
"In most jurisdictions today, the power to order costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs (1). Success in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order (2). When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order.
In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties (3). To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action (4). In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff had no reasonable alternative but to commence a litigation."
94 In this case, counsel for the Minister informed the Court that the Minister did not seek full costs against the applicants in the proceedings. The Minister seeks only the costs of the appearance before this Court where the issue of costs was argued.
95 The question to be determined is whether it can be said that the Minister acted unreasonably. In my opinion, it cannot for these reasons:
(1) the Minister declined to grant an extension of time under s 207(2) of the Act because her legal advice was that the provisions of s 218 of the Act precluded her from doing so. Whether or not this advice was correct, the position taken by the Minister was not unreasonable.
(2) The Minister has never conceded that the proceedings in this Court by way of order nisi for writ of mandamus and application
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for declaratory relief will succeed. To the contrary, it has at all times been the Minister's contention that the proceedings were unnecessary. Her clear position was that the issues could have been determined in a substantive action for compensation under s 220(b) of the Act;
(3) The assurance given by the Senior Assistant State Solicitor to the solicitors for the applicants that no point would be taken, that in an action under s 220(b) of the Act, a failure to make an initial claim for compensation in respect of portion of the land was fatal, was unrelated to the order nisi for the writ of mandamus or the application for declaratory relief.
96 The result is that I can find nothing unreasonable in the way in which the Minister, or the Minister through her legal advisers, dealt with the present proceedings. The Minister at all times resisted the mandamus and declaratory relief proceedings, and whether right or wrong in relation to the interpretation of the provisions of the Act, there was nothing unreasonable in the stance taken. Further, the applicants do not wish to continue with the mandamus or declaratory relief proceedings, but instead will proceed with an action under s 220(b) of the Act in the knowledge that a claim for compensation can be made in relation to all aspects of the land in question. This action could always have been taken. Whether or not the Minister's legal advisers gave an undertaking not to take any point about the matter was irrelevant. Although it took the Minister's legal advisers some time to reach the point at which they made this concession, they were never required to make it and the mandamus and declaratory relief proceedings would not have resolved it.
97 In all the circumstances, I am of the view that the Minister should be entitled to costs. As the only costs sought are those in relation to the proceedings before this Court, I would order that those costs be taxed.
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