Sargent v Powerlink & SEQEB

[1997] QLAC 115

[1997] QLAC 115

 

 

LAND APPEAL COURT

BETWEEN

JOHN G SARGENT

and POWERLINK and SEQEB

Appellant

Respondents

(A96-56)

JUDGMENT

Delivered at Brisbane this First day of August 1997

Introduction

The appellant, John Gary Sargent, has appealed to the Land Appeal Court from a decision of the President of the Land Court that the appellant’s claim for compensation for damage to his land be struck out for want of jurisdiction and an order that he pay the costs of the respondents of and incidental to that matter in the sum of $500.

The grounds of appeal state that the appellant’s property has been damaged by the respondents, SEQEB and Powerlink. They then set out various complaints about the conduct of the callover at which the claim for compensation was mentioned. In summary, the appellant states that he attended the Land Court for a callover; persons attending a callover must be familiar with the matter and its history; as the parties and Court officers were aware, he has never been heard in respect of his claim for compensation; he was not advised or prepared for a hearing; the callover was not conducted according to the Rules of the Land Court and at no time did he receive a fair callover/hearing. These can be described briefly as the procedural fairness grounds of appeal.

The appeal raises the following issues:

1. Does the Land Court have jurisdiction to hear and determine the appellant’s claim for compensation?

2. If the answer to 1 is no, did the Land Court have power to order the appellant to pay the respondents’ costs?

3. If the answer to 2 is yes, should the Land Court have made the award of costs against the appellant?

   The procedural fairness grounds of appeal are relevant to answering question 3.

Factual background

Before considering each of those three issues, it is appropriate to summarise the factual background to the application to the Land Court. The transcript of the callover before the Land Court and the other documents which constitute the record before this Court, together with documents provided to this Court in the course of the hearing, show that the following facts are not in dispute between the parties.

The appellant is the registered owner of Lot 3 on RP229165, County of Churchill, Parish of Rosewood. He purchased the property in July 1994.

The previous title to the appellant’s land was certificate of title 548409 volume 2722 folio 149. By a proclamation dated 16 October 1975, it was declared that an easement was taken over an area of 2.836 hectares of that land, being Easement A on RP150412. The then owner of that land, Mrs Iris May Pagel, was paid compensation “in full satisfaction and discharge of all claims for compensation in respect of the resumption” of the easement “exclusive of damage to property.”

A title search of the appellant’s land on 26 November 1996 showed:

“EASEMENT IN GROSS No 601078768 (F59199) 28/11/1975 BURDENING THE LAND

TO QUEENSLAND ELECTRICITY COMMISSION, THE SOUTH EAST QUEENSLAND ELECTRICITY BOARD

OVER EASEMENT A ON RP150412”.

Mr Sargent is not claiming compensation for resumption of the easement. He is asserting that damage has been caused to his property within and outside the easement area as a  consequence  of  SEQEB’s  erecting  two  timber  poles  for  the  support  of  electricity

transmission lines on the easement in 1987 and removing the pole between them, on the top of a hill. He alleges that erosion damage has extended to almost two acres of land and is increasing each time there is rain.

Jurisdiction to hear and determine the application

The first question in this case is whether the Land Court has jurisdiction to hear and determine the appellant’s claim for compensation. By “jurisdiction” is meant the authority which a court has to decide matters which are litigated before it or to take cognisance of matters presented in a formal way for its decision (see Halsbury’s Laws of England, 4th edition, volume 10, paragraph 715, quoted with approval by Toohey J in St Justins Properties Pty Ltd v Rule Holdings Pty Ltd (1980) 40 FLR 282 at 284; see also Garthwaite v Garthwaite [1964] 2 All ER 233 at 241-2 per Diplock LJ).

Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing.  “An order made without jurisdiction ... is not an order at all. It is completely void and has no force or effect.” (Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 375 per Latham CJ)

Indeed, as the Land Appeal Court has stated:

“ the Land Court must be properly possessed of jurisdiction before proceeding in any matter and ... the Court itself must of its own motion, in the absence of submissions by either party, raise any doubts it may have as regards jurisdiction.” (Beedell Farms and Grazing Pty Ltd v The Valuer- General (1979) 6 QLCR 109 at 113)

As has been noted in many decisions of the Land Court and Land Appeal Court, the Land Court is a Court of statutory creation and its jurisdiction is bestowed by statute. Because it is a Court of limited jurisdiction, it must necessarily assume jurisdiction only when and in the manner authorised by the Legislature (see Gold Coast Milk Pty Ltd and South Coast Co-operative Dairy Association Limited v Valuer-General (1983) 9 QLCR 13 at 17). Although most of the cases in which jurisdictional questions arise in the Land Court involve procedural matters (for example, whether the jurisdiction of the Court has been invoked by a defective or late notice of appeal), the principle just stated is equally applicable to questions of whether the Court has jurisdiction to deal with a substantive issue, such as the appellant’s claim for compensation for damage to his land.

The general jurisdiction of the Land Court is described in the Land Act 1962 in the following terms:

“37(1) General jurisdiction (1910, s.27). The Court shall hear and determine all matters which by this Act or any other Act are required to be heard and determined by the Court.”

The jurisdictional issue in this case must be resolved by reference to the statutory provisions which identify matters with which the Court has authority to deal. In other words, the Court will only have jurisdiction to hear and determine the application if the claim is properly made under relevant statutory provisions. What are those provisions?

At the callover, the appellant submitted that the Court’s jurisdiction was found in section 12(5), (5A) and (5B) and section 24(1) and (2) of the Acquisition of Land Act 1967. The President was not persuaded by that submission and held that the Land Court lacked jurisdiction to hear and determine the application.

The appellant did not pursue that argument before this Court. Rather he relied on section 36(1), (5) and (7) of the Act. He also relied on section 37(3) and (5), insofar as those subsections are relevant to the operation of section 36. He expressly did not rely on any other provision in section 37. We find no reason to deal with sections 12 and 24 or section 37 (other than sub-sections (3) and (5)) in this judgment.

The relevant subsections of sections 36 and 37 are as follows:

“Powers of entry etc.

36.(1) For the purposes of this Act any member, officer, employee, contractor or agent of the constructing authority or any person authorised by it in that behalf may -

(a)enter upon any land, for the purpose of making any inspection, valuation, survey or taking levels;

(b)affix or set up thereon trigonometrical stations, survey pegs, marks, or poles, and from time to time alter, remove, inspect, reinstate and repair the same;

(c)dig and bore into the land so as to ascertain the nature of the soil, and set out the lines of any works thereon;

(d)do all things necessary for the purposes aforesaid.

...

(5) The constructing authority shall be liable for compensation for the actual damage (if any), done to the land by reason of the exercise of any power conferred by this section.

...

(7) Compensation pursuant to subsection (5) may be claimed and agreed upon or determined as prescribed by section 37(3) and (5).

Temporary occupation of land

...

37.(3) The owner of the land or any other person having any estate or interest in the land may, at any time during such occupation or within 3 months thereafter, give notice in writing to the constructing authority that the owner claims compensation, and, subject to giving such notice, if the land is not taken the owner and all such other persons may recover under this Act compensation for all damage done, but not in the case of the owner or any such other person exceeding the compensation which would have been payable to him or her had the land been taken.

...

(5) The constructing authority and the claimant may agree upon the amount of compensation to be paid under this section or they may agree that such amount be determined by the Land Court, in which case such amount shall, upon the reference of either of them, be determined by the Land Court as if the land had been taken and the claim were limited to the compensation recoverable under this section.”

We have concluded, for five reasons, that those sections do not confer jurisdiction on the Land Court to hear and determine the appellant’s claim for compensation.

First, the activity which gives rise to a claim for compensation under the Acquisition of Land Act must be an activity undertaken “[f]or the purposes of this Act”. The purposes of the Act can be ascertained by reference to the long title and the general scheme of the Act. The long title of the Act provides that it is “to consolidate and amend the law relating to the acquisition of land for public works and other public purposes, and for other purposes”. The Act specifies the purposes for which land may be taken under and subject to the Act (s 5(1)) and the scope of the power to take land (s 5(2)-(3)) or an easement (s 6) and specifies the effect of a proclamation or notification of resumption (s 12). Much of the Act is concerned with the procedures to be followed in relation to the taking of land (ss 7-12), whether by

agreement (s 15) or otherwise, and the rights of the dispossessed land owner to gain compensation from the relevant authority for the land taken (s12(5)) or to require the constructing authority to take a severed parcel of land (s13).

Provision is made for the discontinuance of the taking of land (ss 16-17). Where land is taken and a person has a right to compensation under the Act (s 18), the Act sets out the procedure to be followed in claiming compensation (s 19), the matters that are relevant to the assessment of compensation (s 20), the forms of grant that can be made in satisfaction of compensation (ss 21, 22), the procedure for the payment of an advance against compensation (s 23), and the procedure for referring a claim for compensation to the Land Court (ss 24, 25). The Act confers on the Land Court “jurisdiction to hear and determine all matters relating to compensation under this Act” (s 26, also s 29) and the power to award the costs of and incidental to the hearing and determination by the Land Court of such a claim for compensation (s 27). Other circumstances related to the determination and award of such compensation are dealt with (ss 28, 30-35).

It is in the context of that statutory scheme that the provisions of Part 5 of the Act (“General”) must be considered. That Part of the Act contains sections 36 and 37. The activities undertaken by the respondents (or their employees, contractors or agents) which allegedly gave rise to the appellant’s claim were not activities carried out “[f]or the purposes of this Act”.

Second, the action of which the appellant complains, namely work associated with the erection of two timber towers or poles for the support of electrical cables and the removal of another such tower or pole, is not one to which section 36(1)(b) applies. That paragraph permits a person to “affix or set up thereon trigonometrical stations, survey pegs, marks, or poles, and from time to time alter, remove, inspect, reinstate and repair the same.” The phrase “trigonometrical stations, survey pegs, marks, or poles” should be read as describing a class or category of objects which are used in surveying and marking out land.

There is longstanding judicial authority for deciding that a word of wide possible connotation will be limited by the context in which it appears (see, for example, Prior v Sherwood (1906) 3 CLR 1054; R v Refshauge (1976) 11 ALR 471 at 475, 477-9). Where a word has many shades of meaning, the context in which it appears will be of the greatest significance (see FCT v Applegate (1979) 27 ALR 114 at 116, 123, 127). These are ways of expressing the noscitur a sociis rule of statutory interpretation.  Various formulations of the

rule are collected in textbooks on statutory interpretation (see, for example, D Gifford, Statutory Interpretation, 1990, at 78-80; DC Pearce and RS Geddes, Statutory Interpretation in Australia, 4th edn, 1996, 99-100). Sheahan J, quoting from Maxwell on Interpretation of Statutes, stated that:

“where two or more words are coupled together, they are understood to be used in their cognate sense. `They take, as it were, their colour from each other, the meaning of the more general being restricted to a sense analogous to that of the less general’.” (Andrews v Strugnell ex parte Andrews [1977] QdR 284 at 286; see also Prior v Sherwood (1906) 3 CLR 1054 at 1072 per Barton J)

The rule can be applied when there is a group of words of similar meaning, one of which is ambiguous. Normally, though not necessarily, the rule is used to restrict the meaning of an ambiguous word.

The word “pole”, in ordinary English usage, has a range of meanings. For present purposes, it is appropriate to quote the following passages drawn from dictionary definitions:

“long slender rounded piece of wood or metal esp. as support for tent, telegraph wires, bean-plants, etc., or propulsion of barge, punt, etc.” (The Australian Concise Oxford Dictionary, 7th edn, 1987)

and

“a long, rounded, usu. slender piece of wood, metal, etc.” (The Macquarie Dictionary, 2nd edn, 1991).

The Shorter Oxford English Dictionary on Historical Principles (3rd edn, 1990) records that the word “pole” originally denoted a stake, without reference to length or thickness, but now describes “a long, slender, and more or less cylindrical piece of wood (rarely metal); used as a support for a tent, hops or other climbing plants, telegraph or telephone wires, etc., for scaffolding and for other purposes.”

When used in ordinary speech, the word “pole” may denote a wooden pole which supports electricity cables. In the context of section 36(1)(b) of the Act, however, it should be read in a more limited way.

Support for that limited reading can be drawn from the verbs that precede the list of nouns in section 36(1)(b). The words “affix or set up thereon” suggest that what is permitted to be done is of a temporary or minor nature and does not include the erection or installation

of major works such as power poles. In this context, to “affix” means to fix or fasten something to the land and “set up” means to place something on the land. Further support can be found in paragraphs (a) and (c) of section 36(1), each of which refers to non-intrusive or minor works. Read in context, “poles” cannot be read to refer to the major power poles which are or were on the easement land.

The appellant relied solely on section 36(1)(b) and did not refer to other paragraphs in that subsection. In our view, no other paragraph is relevant to the appellant’s claim for compensation.

Third, because section 36(1) does not apply in this case, section 36(5) cannot apply. The constructing authority cannot be liable under that section for compensation for actual damage done to the land where that damage was not incurred “by reason of the exercise of any power conferred by” section 36.

Fourth, even if section 36 did apply, the procedures set out in section 37 do not permit the appellant’s claim to be brought before the Land Court. Section 37(3) provides that the owner of the land may, at any time during the occupation of the land or within 3 months after that occupation, give notice that the owner claims compensation. If notice is given, and if the land is not taken, the owner may recover under the Act compensation for all damage done. Such compensation shall not exceed the compensation which would have been payable had the land been taken. It is clear in this case that some of the appellant’s land was taken (though before the appellant purchased the land) so that part of section 37(3) which concerns land not taken does not apply. Only the opening part of that subsection could possibly be relevant. The appellant stressed that the previous owner had accepted a sum in full payment for all claims for compensation in respect of the resumption of the easement “exclusive of damage to property”.  However there is no evidence that the owner of the land gave notice of a claim for compensation to the constructing authority during the time it occupied the land or within 3 months thereafter. Even if such notice was given, the appellant was not the owner of the land in 1987 when the two new timber poles were erected and the previous one was removed. Consequently, even if section 36 did provide the owner with a right to compensation, that compensation was not “claimed ... as prescribed by section 37(3)”.

Fifth, section 37(5) provides that the constructing authority and the claimants:

(a)may agree upon the amount of compensation to be paid; or

(b)may agree that the amount of compensation be determined by the Land Court.

In this case the parties have not agreed upon the amount of compensation to be paid nor have they agreed that the amount of compensation be determined by the Land Court. Rather, the respondent expressly asserts that the Court has no jurisdiction to hear and determine the application. In the absence of agreement that the matter be determined by the Land Court, the Court cannot hear the application. We do not suggest that a claimant to whom section 37(5) would apply cannot have any remedy unless the constructing authority agrees. It is clear, however, that in the absence of agreement the Land Court cannot determine the amount of compensation.

For the reasons just given, the Land Court does not have jurisdiction to hear and determine the appellant’s claim for compensation.

Power of the Land Court to make an order for costs

As the Full Court of the Supreme Court of Queensland has observed, the power to award costs of proceedings is entirely the creation of statute. This was true of the common law courts and apparently also in equity, and is equally true of tribunals that are statutory in origin (Wyatt v Albert Shire Council [1987] 1 Qd R 486 at 488).

At the callover, the respondents’ solicitor submitted that the Court had power to award costs pursuant to section 27 of the Acquisition of Land Act 1967. That section states, in part:

“(1) Subject to this section, the costs of and incidental to the hearing and determination by the Land Court of a claim for compensation under this Act shall be in the discretion of that court.”

The President found, correctly in our view, that the section did not give the Court power to award costs in these circumstances. The Land Court did not have jurisdiction under section 26 of the Acquisition of Land Act to hear and determine the appellant’s claim for compensation. Consequently, the costs of the hearing to determine that the Court did not have jurisdiction were not costs of and incidental to the hearing and determination of a claim for compensation under that Act.

If the Court has power to award costs in this case that power must be found in section 41(9) of the Land Act 1962, as preserved by section 521 of the Land Act 1994 (as amended), which states in part:

“(9) The Court may make such order as it thinks fit as to the costs of or incidental to any matter that it has jurisdiction to hear and determine including, without limiting the generality of this subsection, the costs of an adjournment or application made in a pending matter, allowances to witnesses attending for the purpose of giving evidence at the hearing and the costs of any survey of boundaries. ...”

The Court is given broad discretionary power to make an order “as to the costs of and incidental to any matter that it has jurisdiction to hear and determine”. If the Court lacked jurisdiction to hear and determine the appellant’s claim for compensation, did the Court have power to order the appellant to pay the respondents’ costs?

In ascertaining the extent of the Court’s power it is instructive to consider the legislative history of section 41(9).

Section 32(6) of the Land Act of 1910 provided, in part:

“The Court may make such order as it thinks fit as to the costs of any proceeding heard and determined by it, including allowances to witnesses attending for the purpose of giving evidence at the hearing and the cost of any survey of boundaries.” (emphasis added)

1962.

The same words were used in section 41(9) of the Land Act 1962 as first enacted in

Section 41 was amended by section 9 of the Land Act and Another Act Amendment

Act 1981. Subsection (9) was omitted and a new subsection (9) was inserted. The subsection remains unchanged. A comparison of the provisions gives an indication of the much broader scope of the current subsection (9). That impression is confirmed by an entry in the “Record of the Legislative Acts passed by the Forty-third Parliament of Queensland during its First Session 1981-1982”. The commentary on the 1981 Act states:

“Section 9 amends section 41 of the Principal act to clarify and extend the powers of the Land Court with respect to the award of costs.” (at 262)

The legislative history points to a wider meaning of “matter” than “proceeding”. The word “matter” in this context refers to the subject in issue or dispute between parties. (In a similar vein, a “matter” within the meaning of section 76 of the Australian Constitution means “a justiciable controversy”: Minister for Home & Territories v Smith (1924) 35 CLR 120 at 126 per Isaacs ACJ and Starke J, citing South Australia v Victoria (1911) 12 CLR 667.) More recently, members of the High Court have stated that a “matter” must be

distinguished from the action or judicial proceeding which is commenced in order to obtain a determination of the controversy between the parties. The “matter” is not the proceeding but the subject of the controversy which is amenable to judicial determination in the proceeding: Croome v Tasmania (1997) 71 ALJR 430 at 432 per Brennan CJ, Dawson and Toohey JJ.

The provision indicates that the Court may make orders once its jurisdiction has been invoked, including in cases where the question of whether the Court has jurisdiction is the matter or issue in dispute. Once the Court’s jurisdiction has been invoked, even for that limited purpose, and action has been taken by a party or parties in relation to the hearing and determination of the matter by the Court, the Court may order costs of or incidental to the matter.

The breadth of the power is not to be read down by reference to the examples of the exercise of the power set out in section 41(9). First, the examples are expressly included “without limiting the generality of this subsection”. Second, the examples have no common element and so the noscitur a sociis rule has no application. Third, as the Land Appeal Court observed, the power conferred by section 41(9) is “discretionary and is in no way circumscribed” (WH Bowden v The Valuer-General (1980) 7 QLCR 138 at 145).

As far as we are aware, there has never been any suggestion that the Court lacks jurisdiction to determine whether it has jurisdiction to hear and determine a particular matter. The Court frequently makes such determinations and, on occasions, makes orders for costs in respect of the jurisdictional matter.

The respondents had given notice that there would be a question of jurisdiction to be determined when the appellant’s claim was brought before the Court for callover on 5 December 1996. Whether the Court had jurisdiction to hear the claim or only to determine the jurisdictional issue, there was at the time of the callover a “matter” that the Court had jurisdiction to hear and determine. It follows that the Land Court had power to award costs in the case.

Discretionary exercise of power to make an order for costs against the appellant

Given that the Land Court has power to make an order for costs in the circumstances of the case, the next question is whether it was appropriate for the Court to make the order that the appellant pay the sum of $500 as the respondents’ costs of and incidental to the hearing. The starting point in answering that question must be section 41(5) of the Land Act 1962 which provides, in part:

“(5) Court to be guided by equity and good conscience.  Notwithstanding anything in this Act or in any other Act, or in any rule, process or practice of law -

(a) the Court in the exercise of any jurisdiction, duty, power or function, conferred or imposed upon it, shall be governed in its procedure and in its decisions by equity, good conscience, and the substantial merits of the case, without regard to technicalities or legal forms or the practice of the other courts;...”

The Land Court’s discretion is unfettered but must be exercised judicially, that is, by reference to relevant considerations (for example see Townsville City Council v Moyses and Morris (1979) 6 QLCR 271 at 273-4, WH Bowden v The Valuer-General (1980-81) 7 QLCR 138 at 144-7). It is apparent that the attitude which the Court should take in the exercise of its discretion is primarily one of restraint but, speaking broadly, its power to award costs may be exercised against a party if the Court is satisfied that the party acted arbitrarily or capriciously, or in a frivolous or vexatious manner. In determining whether a party has acted in such a way, it is relevant to consider whether the legislative provision under consideration is complex in its own terms or if difficulties arise in its application in a particular case.

The appellant’s grounds of appeal, summarised above, suggest that the appellant was unprepared for what happened at the callover and was given insufficient opportunity to put his case. That suggestion was repeated in his submissions to this Court. In order to deal with those grounds of appeal it is necessary to look at events immediately preceding the callover on 5 December 1996 and to the conduct of that callover.

In a notice of application dated Wednesday 27 November 1996 and lodged in the Land Court on 28 November 1996, the solicitors for the respondents gave notice that application would be made to the Land Court on Thursday 5 December 1996 that the matter be dismissed and the claimant pay the respondents’ costs of and incidental to the hearing and determination of the application on the following grounds:

1. The Court had no jurisdiction to hear the matter as the claimant had no right to claim compensation under the Acquisition of Land Act 1967.

2. The claimant’s claim for compensation and referral to the Court were frivolous or vexatious in nature or so obviously without foundation that the Court should exercise its discretion and award costs to the respondents.

In a letter dated 27 November 1996 to Mr Sargent, the respondents’ solicitors gave notice that “at the callover, we will pursue an application to the Court that the matter be dismissed and an order that the costs of our clients in bringing this application be paid by you.” A copy of the application and supporting affidavit were enclosed with the letter. The letter set out the reasons for which, the solicitors said, the claim for compensation had no lawful basis. The transcript of proceedings before the Land Court records that the appellant received the letter on Friday 29 November 1996.

It is clear that, about six days before the callover, the appellant was on notice that there would be a challenge to the jurisdiction of the Court and an application for costs. It appears that the appellant came to Court unprepared to answer the challenge to the Court’s jurisdiction. The steps taken at the callover are recorded in the transcript of that hearing which shows that the respondent’s solicitor raised the jurisdictional issue and asked that that application be heard before any orders were made about the hearing of the matter. The appellant was given an opportunity to respond and there was the following exchange:

“MR SARGENT: Mr President, I’m not very good at these cases but it’s completely wrong what he’s saying and the case is about damage to my property and the Court can hear this case.

THE PRESIDENT: Would you like that application pursued this morning?

MR SARGENT: There’s no point because Mr President it says here that persons attending a callover in respect of a case must be familiar with the matter and its history. The chap is not here for me with the history of the case.”

We understand that Mr Sargent was referring to the Court Notice dated 18 November 1996 which stated “Persons attending a callover in respect of a case MUST be familiar with the matter and its history.” Read in the context of the notice, that statement is directed at parties and their agents so that persons attending a callover are able to provide information about the matters identified in the Court Notice. The appellant was familiar with his claim for compensation. He had also been given notice of the respondents’ application.

After the respondents’ solicitor had confirmed that he wanted to pursue the application that morning, the exchange between the President and the appellant continued.

“THE PRESIDENT: Have you any objection to that at all Mr Sargent?  MR SARGENT: Yes Mr President because it’s not of any relevance to the actual case.

THE PRESIDENT: Gentlemen I’ll hear your argument. Today was a callover of matters and I’d like to dispose of all those before we deal with your case. Is there anyone in the rear of the Court there that is concerned with any other matters on the callover list? Mr Sargent, what’s your objection to having this matter dealt with straightaway?

MR SARGENT: With his affidavit? THE PRESIDENT: Yes.

MR SARGENT: It’s of no relevance to the case Mr President.

THE PRESIDENT:  You have no objection to my considering the matter today? You don’t want an adjournment to further --

MR SARGENT:    No I don’t want any - Mr President I’m seeking a hearing please because the damage to the property is severe.

THE PRESIDENT: I’ll hear the application in that case then Mr Sargent. Would you like to be seated for a moment and I’ll hear Mr Ware and then you can reply.”

The Court then heard the solicitor’s submissions, although the appellant interrupted to submit that the Court has jurisdiction. The appellant nominated various sections of the Acquisition of Land Act 1967 and described to the Court the nature and extent of the damage to land which he alleges has been caused by SEQEB’s activities. The following exchange then took place.

“THE PRESIDENT:  There has been no further taking of land while it’s been in your ownership, there’s no further resumption of land?

MR SARGENT: No, just the damage.

THE PRESIDENT:  Just the damage.  That was what you were objecting to earlier in respect of Mr Ware’s affidavit?

MR SARGENT: Yes, it’s of no relevance to the case. THE PRESIDENT: That wasn’t relevant.

MR SARGENT: It’s just a waste of time.

THE PRESIDENT: Anything further you want to tell me? We’re not dealing with the case, we’re dealing with Mr Ware’s application at this stage. Mr Ware’s application is this Court has no jurisdiction you see.

MR SARGENT: I don’t accept that.

THE PRESIDENT:  Yes, but is there anything further with regard to that application that you wish to say.

MR SARGENT: Only what I said before Mr President that persons attending a callover in respect of a case must be familiar with the matter and its history. Now my claim in this Court was for damage to my property. It’s not for the easement being taken. Mr (sic) Pagel has been paid 400 and something dollars for the taking of this easement some time ago and the other matters were that the Court does have jurisdiction to hear this matter and probably is the only Court that can.

THE PRESIDENT: That’s your submission then is it Mr Sargent? MR SARGENT: Yes.

THE PRESIDENT: Anything further you want to add?

MR SARGENT:  The claimant’s claim for compensation is genuine with solid foundation and any documents can be supplied today.

THE PRESIDENT: Thank you. Nothing further then? MR SARGENT: No Mr President.

MR SARGENT (sic): Thanks Mr Sargent.”

The respondents’ solicitor then made legal submissions in response to the appellant’s reliance on sections 12 and 24 of the Acquisition of Land Act.

In an ex tempore decision, the President held that the Court had no jurisdiction to hear the appellant’s claim for compensation. At that point, the respondents’ solicitor pursued the application for costs on the basis that the appellant’s claim for compensation was frivolous

and vexatious.  He argued that the respondents should not be penalised in having to seek legal advice and appear in Court merely because the appellant was under a misapprehension about the Court’s jurisdiction.

There followed an exchange between the President and the appellant:

“THE PRESIDENT: I’ll hear Mr Sargent and then I’ll hear you on the amount of costs. Yes Mr Sargent? You’ve lost the matter of jurisdiction and Mr Ware is now asking for costs of this hearing today.

MR SARGENT: I’ll just go along with what you say Mr President. I’ve tried everything to get this repaired and there’s nothing more I can do now. THE PRESIDENT: He’s asking costs against you. Do you have anything you want to say about that?

MR SARGENT: What more could I expect?

THE PRESIDENT: You’ll leave it to me then Mr Sargent?

MR SARGENT: Thank you Mr President. May I just say one more thing. I’m perhaps not well educated but I think to put this on me last week when I’ve received no legal advice for 480 days I read through the rules of the Land Act quickly and I thought I should have received more notice of this letter that came the other day. I received the letter on Friday, today is Thursday. That’s all I have to say Mr President.

THE PRESIDENT: Thank you Mr Sargent.”

The difficulties faced by Mr Sargent are those commonly confronted by litigants in person who have no legal qualifications and have received no legal advice. Even in the Land Court, where procedures are less formal than in other Courts, an uninformed litigant may be unable to assess the significance of critical points of law which determine the fate of that person’s application. To some extent the Court can and does assist such litigants. Where it has jurisdiction, a Court is bound to give a party a reasonable opportunity to state the party’s claim for relief and to point to the evidence which supports it. But the Court cannot make the case for that person  (see, for example, Gamester Pty Ltd v Lockhart (1993) 67 ALJR 547 at

549) or assist the person in the conduct of their case in a way which is to the detriment of another party or other parties. Nor can the Court act as if it has jurisdiction when it does not.

The challenge to the Land Court’s jurisdiction was properly made by the respondents at the appropriate time. They gave the appellant written notice of their application sufficiently in advance of the callover for the appellant to seek legal advice. The appellant was not taken by surprise when the respondents’ application was made at the start of the callover.

It is clear from the transcript of proceedings that the President explained to the appellant the limited purpose of the callover and of the respondents’ application, and accorded the appellant appropriate opportunities to make submissions on both the question of jurisdiction and the question of costs. The appellant was apparently unwilling to be diverted from the course he had charted to have the Court deal with his grievance. He was either unwilling or unprepared to meet, in a substantive sense, the matters raised by the respondents.

We are not convinced that the appellant did not receive a fair hearing. Indeed the transcript shows that, even when the appellant interrupted the usual order of proceedings, he was treated with courtesy by the President.

The appellant was mistaken in believing that the Land Court could hear and determine his claim for compensation. The transcript and record before this Court, however, do not provide a basis for finding that the appellant was acting frivolously in bringing the claim to the Land Court. He may, strictly speaking, have been vexatious. As Lush J said some eight decades ago in respect of frivolous and vexatious proceedings:

“In order to bring a case within the description it is not sufficient merely to say that the plaintiff has no cause of action. It must appear that his alleged cause of action is one which on the face of it is clearly one which no reasonable person could properly treat as bona fide, and contend that he had a grievance which he was entitled to bring before the Court. Of course it is a question of degree.” (Norman v Mathews (1916) 85 LJKB 857 at 859)

In recent years, the High Court has considered what constitutes oppressive or vexatious conduct where a litigant who has a choice of forums in which to seek relief commences proceedings in a forum which is clearly inappropriate rather than in the more appropriate court. Those cases are distinguishable from this case, where the Land Court lacked jurisdiction rather than being simply an inappropriate forum.  The formulations of the

test of what constitutes vexatious and oppressive conduct in such cases, however, provide some guidance here. In Voth v Manildra Flour Mills Pty Ltd ((1990) 171 CLR 538 at 564-5), the High Court adopted the test propounded by Deane J in Oceanic Sun Line Shipping Co Inc v Fay ((1988) 165 CLR 197 at 247) that a stay should be granted if the local court is a clearly inappropriate forum, that is, where continuation of the proceedings in that court would be oppressive, in the sense of “seriously and unfairly burdensome, prejudicial or damaging”, or vexatious, in the sense of “productive of serious and unjustified trouble and harassment”. That test has since been affirmed in Henry v Henry ((1996) 70 ALJR 480 at 488, 489-90; see also Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR at 555). We note Deane J’s observations, drawing on an earlier English decision, that, as the words “oppressive” and “vexatious” are neither technical nor statutory words, they should not be too rigidly construed or applied in determining whether proceedings should be stayed or dismissed on inappropriate forum grounds. His Honour continued:

“Those words have an overlapping denotation in that circumstances which can properly be described by one will often be equally susceptible of being described by the other. ... I do not think that one should read into the words a requirement that the continuance of the action would involve moral delinquency on the part of the plaintiff. ... Rather, it seems to me that those words should be read ... as describing and characterizing the objective effect, on balance, of a continuation of the particular forum as the venue of the proceedings rather than as describing the conduct of the plaintiff in selecting or persisting with that forum. ... [O]nce it is accepted that the adjectives ‘oppressive’ and ‘vexatious’ are not to be narrowly or rigidly construed and are to be applied in relation to the effect of the continuation of the proceedings rather than the conduct of the plaintiff in continuing them, the continuation of proceedings in a tribunal which is a clearly inappropriate forum would, in the absence of exceptional circumstances being established by the plaintiff ... be oppressive or vexatious to such a defendant if there is some available and appropriate tribunal in another country.” ((1988) 165 CLR 197 at 246-8; see also Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR at 555)

In this case it is clear that, even if the appellant has a cause of action against the respondents (and we express no opinion on that issue), the Land Court cannot hear and determine his claim. Counsel for the respondents submitted that, if the damages claimed form a basis for a cause of action, they would fall into the category of a tort or nuisance.

The Land Appeal Court has previously “stressed that negligent or other tortious acts done by the employees or agents of the Constructing Authority are not compensable before

us” (Joyce v Northern Electric Authority of Queensland (1974) 1 QLCR 171 at 178), and the Land Court has stated that “tortious or negligence acts committed by the servants employees and/or agents of the constructing authority are not compensable although actions would doubtless lie in another jurisdiction” (Thomson v Southern Electric Authority of Queensland (1976) 3 QLCR 267 at 272).

The appellant was mistaken in commencing proceedings before the Land Court. He received written notice that there was at least an issue about the Court’s jurisdiction. He did not discontinue his case. He chose to proceed, but offered no arguments against the respondents’ application. The respondents incurred some expense in convincing the Court that the appellant’s claim was fatally flawed. The President exercised the discretionary power of the Court to make an order for costs. We are not convinced that the order for costs made by the President was unreasonable or inappropriate.

Having come to that conclusion it is, perhaps, unnecessary to discuss the principles by which an appeal against an exercise of discretion is governed. In our view,  those principles as laid down by the High Court in cases such as House v The King ((1936) 55 CLR 499 at 504-5) and Australian Coal & Shale Employees’ Federation v The Commonwealth ((1953)

94 CLR 621 at 627), and more recently by the Full Court of the Supreme Court of Queensland in Wyatt v Albert Shire Council ([1987] 1 Qd R 486 at 487 - an appeal against a decision not to award costs) and the English Court of Appeal in Alltrans Express Ltd v CVA Holdings Ltd [1984] 1 All ER 685 at 690, 692-3 - an appeal against a decision to award costs), lead to the same result.

In the preceding reasons for decision we have dealt with all but one of the substantive issues raised in the grounds of appeal. The final ground contended that the callover was not conducted according to Rules 8, 15, 17, 18, 20, 21, 22, 24, 27 and 31 of the Land Court. The appeal on this ground must also fail. The Court notice of the callover was dated 18 November 1996, some 17 days before the date of the callover, and so notice was not in breach of Rule 8. Rules 15 (withdrawal of appeal), 17 (order of addresses at the hearing of appeals), 18 (amendments), 24 (settlement of the terms of an order or decision of the Court), 27 (variation of time limits), and 31 (consequences of non-compliance with the Rules) did not apply to the conduct of the callover and so any alleged breach of them cannot be the basis of an appeal to this Court.

Rule 20 provides that certain nominated applications may be brought before the Land Court and dealt with in chambers.  Rules 21 and 22 relate to applications made under Rule

20. The respondents’ application before the Land Court did not fall within any of the types of application nominated in paragraphs (i) to (ix). Rule 20 could only have been relevant if the application came within paragraph (x), being any other matter which the Court may allow so to be dealt with. Rule 21 states that not less than seven days’ notice of any application under Rule 20 shall be given to the Registrar and to the other parties concerned, and the grounds on which the application is based shall be stated in the notice and be supported by affidavit.

Notice of the respondents’ application was made on Form 4 under Rule 21 and was dated 27 November 1996. It was lodged by hand in the Land Court on 28 November 1996, together with a supporting affidavit, thus complying with the requirements of Rules 21 and 22 insofar as they involve notice to the Court. The letter to the appellant, enclosing a copy of the notice and the supporting affidavit, was also dated 27 November 1996. If that letter was sent on 27 November it would, in the ordinary course of post, have been delivered to the appellant’s address on 28 November and notice might be deemed to have been given on that date (see Acts Interpretation Act 1954 ss 2, 7, 39 and 39A). There was no evidence on that point, and the fact that the notice was lodged by hand in the registry of the Land Court suggests that the notice to the appellant might have been sent by post on 28 November. Apparently the letter was received by the appellant on Friday 29 November, six days clear of the date of the callover. Thus, although the requirement of Rule 22 was satisfied, Rule 21 was not satisfied in that one respect.

Rule 31 states that non-compliance with any of these Rules shall not render any proceedings void unless the Land Court or the Land Appeal Court so directs. Such proceedings, however, may be set aside as irregular or may be amended or otherwise dealt with in such manner and upon such terms as the Court may think fit.

In our view, the apparent breach of Rule 21 in giving the appellant one day’s less notice of the application than was prescribed is an insufficient ground for setting aside the decision of the Land Court.

Conclusions and order

For the reasons given above, we have concluded that:

(a)the  Land  Court  does  not  have  jurisdiction  to  hear  and  determine  the  claim  for compensation for damage to the appellant’s land;

(b)the Land Court had power to order the appellant to pay the respondents’ costs; and

(c)the order for costs made by the Land Court was an appropriate exercise of the Court’s discretionary power.

Consequently, the appeal is dismissed.

HELMAN J JUSTICE OF THE SUPREME COURT

RE WENCK MEMBER OF THE LAND COURT

GJ NEATE MEMBER OF THE LAND COURT