Ryan v Chief Executive, Department of Natural Resources

[2000] QLC 75

LAND COURT

BRISBANE

28 NOVEMBER 2000

Re:     Appeal Against Annual Valuation

Valuation of Land Act 1944

Valuation Roll No.:    1007/10000
  Local Government:    BCC-Ithaca
  (V99-268)

Myles J and Carol A Ryan

v.

Chief Executive, Department of Natural Resources

D E C I S I O N  ON  C O S T S

Background:

This matter relates to land at 43 Prospect Terrace, Kelvin Grove, and described as Lot 12 on RP 20406, Parish of Enoggera.  The subject land has an area of 201 m² and is used for the purpose of a single-family dwelling.  The matter before the Court relates to the determination of the unimproved value of the subject land at the date of valuation of 1 October 1997.
           At the hearing of the matter on 25 October 2000 there was no appearance by the appellants, and Mr MR Green, Counsel of Crown Law, represented the respondent.  In view of the failure by the appellants to appear, the Court acceded to an application by Mr Green to strike out the appeal for want of prosecution.  In the event Mr Green then sought costs thrown away by the respondent in preparing for the matter.
The Facts:
           The Chief Executive issued a valuation of the subject land at $120,000 on 23 October 1998.  Following an objection the Chief Executive confirmed that figure on 18 May 1999.  The appellants then appealed that decision on 15 June 1999, claiming the unimproved value should more properly be $75,000.  On 23 June 1999 the appellants sought leave of the Court to participate in a Court-supervised preliminary conference, with a view of trying to settle the matter.
           A preliminary conference was scheduled by Court letter of 3 February 2000 for 21 February 2000.  There being no appearance by the appellants at the scheduled time on 21 February 2000, attempts to contact the appellants finally determined that Mr Ryan had inadvertently been prevented from attending due to problems with hot water supply to his residence.  With the agreement of the respondent, another preliminary conference was then scheduled for 7 August 2000 by Court letter of 26 July 2000.
           On 7 August 2000 there was no appearance by the appellants, and the matter was returned to the list to be rescheduled for hearing at a later time.  There was no contact by the appellants on 7 August 2000.  On 2 October 2000 the Registrar issued a Court Notice setting down the matter for hearing on 25 October 2000.  Each of the above communications was also forwarded to the Chief Executive for information.  There was no return of any correspondence by Australia Post, and there has been no indication of a change of postal address from the appellants.  Mr Green advises that a cursory inspection of the subject land indicated that the property was occupied.  The matter was then determined on 25 October 2000 as outlined above.
           During the actual hearing on costs Mr Ryan contacted the Registrar, advising that he had not received any of the correspondence from the Court as he had moved from the subject land.  On being informed that an application for costs was then proceeding, the appellants offered no further excuse, nor did Mr Ryan request a delay so that he might have opportunity to argue against costs being awarded.
Decision:
The power to award costs is to be found in s.34 of the Land Court Act 2000 which states:

"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."

Mr Green seeks costs in the form of a dual submission, outlining either an awarding of costs on a fixed quantum basis, or upon an assessment to be made by the Supreme Court on the Supreme Court scale.  Mr Green acknowledges that costs in these type of matters are generally only awarded in what has been referred to as extraordinary circumstances, often associated with actions by a party, which could be defined to be of a frivolous or vexatious nature.
           In support of the application for costs, Mr Green provides the following quantum of costs thrown away by the respondent:

Preparation by counsel  $200
                 Fee due on briefing of counsel  $1,500
                 Preparation by valuer  $500
                 Preparation and attendance at two preliminary conferences                 $187

Total  $2,387

Mr Green bases those costs on the appropriate Supreme Court scale, which he argues is the scale traditionally adopted by this Court where costs are awarded.
           Mr Green also argues that the appellants would appear to have shown little regard for the time and costs incurred by either the Court or the respondent, as demonstrated by the appellants' failure to follow up on their appeal.  Mr Green argues that, even in the event of the appellants not receiving any of the correspondence from the Court, their failure to not seek advice on the progress of their appeal to the Court was inconsistent with their previous actions in respect of the objection to the Chief Executive.  Mr Green argues that while there was no conclusive proof of a vexatious or frivolous approach to the appeal by the appellants, their subsequent lack of interest displayed a lack of consideration for the impact upon other parties.
           In seeking guidance on such an approach I am directed to the findings of this Court in Queensland Landmark Developments Ltd v.Valuer-General (1992-93) 14 QLCR 168. In that matter the learned Member (later President) considered the matter of costs involved in determining a successful appeal against an annual valuation in the City of Brisbane. The appellant had argued for an unimproved value of $680,000, the respondent had led evidence to $1,500,000, and the Court determined a value at $800,000.
           In exercising its discretion, the Court considered the costs incurred by the appellant in the matter of professional costs for solicitors, engineers and valuers fees to a total of $5,733.  The Court also noted guidance to be found in Bowden v. The Valuer-General (1980-81) 7 QLCR 138, at 144 -149, where no award of costs was made in the special circumstances of that matter.
           In the Bowden matter the Land Appeal Court said at p.146:

"     We think, in dealing with questions of costs, that it is an important consideration that there be ease of access to the Land Court and the Land Appeal Court. ...  Fear of an adverse order with respect to costs may deter citizens with just complaints from resorting to the Courts; that has in the past occurred, as will appear.  It seems to us unjust to adopt a restrained attitude towards awarding costs against citizens without adopting an equally restrained attitude towards awarding costs against the Valuer-General.  That is not to say that, in a proper case, the Land Court or the Land Appeal Court will not award costs against either a citizen or an authority subject to the provisions of the statute which governs the matter."

However in the Queensland Landmark Development decision the learned Member found that the circumstances there were such that, in his opinion, the case did not receive the care and attention it deserved at the outset.  The Court therefore found against the Valuer-General to the extent of $5,733 for professional costs incurred by the appellant.
           Mr Green also directs me to the findings of RJ Scougall v. Chief Executive, Department of Natural Resources (1996-97) 16 QLCR 536. In that matter the Land Appeal Court found that there were no extraordinary circumstances, which would justify an award of costs against the appellant, although the Chief Executive had been fully vindicated in his valuation determination.
           However the findings in Collins Foods International (Properties)No. 2 Pty Ltd v. Chief Executive, Department of Natural Resources (1996-97) 16 QLCR 651 did uphold that partial costs should be awarded to the Chief Executive. In the Collins matter the learned Member considered costs thrown away by the Chief Executive in preparing to defend the appeal.
           The appellant had withdrawn his appeal on the day prior to the hearing.  The reason for the late withdrawal was because the appellant's valuer had been in hospital and was convalescing, and was unable to prepare for the hearing.  The appeal on that occasion had not been called for hearing until three years after the initial lodgment of the appeal.  There had been correspondence between the Registrar of the Court and the agents for the appellant, resulting in the late withdrawal by the appellant's agent.
           The learned Member considered the broad and unfettered discretionary powers conferred upon this Court, noting also the factors to be considered in exercising that discretion, and noted at p.665:

"     This is not to say that the Court will not, in a proper case, make an award of costs, but there would need to be sufficient reason for such an award.  In exercising its discretion, the Court necessarily takes into account all of the circumstances then appearing.  Such cases include cases where a party may justifiably seek costs through lateness of notice, or where the Court is satisfied that proceedings are of a frivolous or vexatious nature or perhaps where a hearing is adjourned due to the wrongful conduct of a party."

In the end the learned Member found that "It was the administrative inefficiency of the agent which resulted in the appellant's case not being ready for hearing and which led to the making of a late decision to withdraw the appeal." (p.666).  Costs to a sum of $1,000 were awarded against the appellant.
           I see some similarity in the current matter to the circumstances in Collins, although the appellants would appear to have been entirely responsible for any administrative inefficiency in his own record keeping.  Certainly he may have not received any of the letters or notices from the Registrar of the Court, due apparently to his relocation from the formal postal addressed supplied to the Court.  However, there was no record on the Court's file of any undelivered mail being returned to the Court.
           The one mitigating difference I note with Collins is, in my opinion, that in the current matter the responsibility to appropriately deal with the correspondence and the Court Notice lay with an apparently ill-informed litigant who has no formal training in the law, and presumably was not fully informed of the implications of not following through on his responsibility.  Such a scenario was encompassed previously by the Land Appeal Court in Bowden at p.146. The appellant would not appear on the evidence to have been a person well instructed in the law such as the valuer in Collins.  I will therefore distinguish Collins on that circumstance.
           In considering the current matter I am also aware that there have been somewhat similar recent applications for costs where there have been no appearances by appellants.  (See SH Dunn v. Chief Executive, Department of Natural Resources (AV00-418), 10 November 2000, unreported; and Carlton International Pty Ltd v. Chief Executive, Department of Natural Resources (AV00-442), 10 November 2000, unreported.  In the Dunn matter the appellant had personally failed to appear, similar to the current matter.  In the Carlton International matter the agent for the appellant had failed to appear.  Both matters were struck out for want of prosecution, and costs in the circumstances of those matters were awarded to a total of $125 against each appellant.
           If I consider then the current matter, and raise the spectre of the appellants, for whatever reason, not receiving any of the letters or notice from the Court, I will make some allowance for that possibility.  Had such a possibility not occurred, and had the appellants merely demonstrated any inconsideration in respect of any costs being incurred by the respondent as a consequence of the appeal, then the quantum of costs awarded would have been more substantial.  However, in view of the lack of any substantiated evidence of such an approach by the appellants, I exercise my discretion to restrict any costs to those comparable to the matters of Dunn and Carlton International.  In those matters the costs had been restricted to the preparation and appearance by counsel for the respondent.  In the current matter I award costs to a total of $200 on a similar basis.
Order:
           The appellants are to pay the respondent's costs in the sum of Two Hundred Dollars ($200).

NG DIVETT
MEMBER OF THE LAND COURT