Secretary to the Department of Transport v Provan's Timber Pty Ltd (No 2)

In this matter, the Secretary to the Department of Transport sought to acquire land compulsorily for road widening purposes. Provan’s Timber Pty Ltd disputed the compensation offered for relocation expenses. The case was heard in the Supreme Court of Victoria. The primary legal issue was whether the costs of the proceedings should be paid on an indemnity basis, considering the circumstances of the case, including whether the proceedings arose from or were affected by unreasonable conduct, and whether the letter of offer amounted to a Calderbank offer. The court also needed to determine whether the rejection of such an offer was relevant in assessing unreasonable conduct under the Land Acquisition and Compensation Act 1986.

The court considered the principles established in Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority [No 2] and Roads Corporation v Love [No 2]. These cases emphasised the importance of assessing whether the proceedings arose from or were affected by unreasonable conduct. The court found that the letter of offer did not constitute a Calderbank offer because it was not unequivocal and unconditional. The rejection of this letter did not amount to unreasonable conduct as it did not meet the criteria for a Calderbank offer. The court also noted that the rejection did not automatically disqualify the party from indemnity costs. The court concluded that the proceedings did not arise from or were affected by unreasonable conduct, and thus the indemnity costs were appropriate.

The court granted leave to appeal and allowed the appeal. The Secretary to the Department of Transport was ordered to pay Provan’s Timber Pty Ltd’s costs of the proceedings on an indemnity basis. The court’s reasoning was based on the statutory provisions and case law, which guided the assessment of unreasonable conduct and the implications for indemnity costs in land acquisition matters. The decision underscores the need for clear and unequivocal offers in land acquisition disputes to avoid indemnity costs.