Shellray Pty Ltd as trustee for the Jonley Unit Trust v Chief Executive, Department of Main Roads
[1999] QLC 129
•21 December 1999
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BRISBANE
21 DECEMBER 1999
Re: Claim for Compensation
Resumption for Road Purposes
Acquisition of Land Act 1967
(A98-27)
Shellray Pty Ltd as trustee for the Jonley Unit Trust
v.
Chief Executive, Department of Main Roads
DECISION ON COSTS
Consequent upon the judgment of the decision on compensation due in the above matter, the Court indicated that submissions would be received in respect of the awarding of any costs of and incidental to the hearing and determination by the Land Court. The Court had indicated that, in the absence of persuasive argument on costs from the claimant, it was intended to award costs in favour of the respondent.
Both parties were granted leave to respond to that exercise of discretion, and formal submissions have now been received. The claimant resists any awarding of costs, and the respondent provides supporting evidence in respect of the awarding of costs in its favour. There were no appearances on the matter of costs and the matter was determined on the basis of the written submissions supplied and exchanged by the parties.
Counsel for the claimant was Mr A Lyons, and counsel for the respondent were Mr J Gallagher QC, and with him Mr R Jones.
History of the Claim
Following the resumption of the land on 5 September 1997, the claimant lodged a claim with the Land Court for $1,443,850, including $932,650 for the land, and a further $376,330 for loss of improvements (signs), and $134,870 for loss of fill material, plus costs and interest to be determined. During the hearing the claimant sought leave to amend the claim to $1,416,793, including loss of land ($932,650), loss of improvements – signs ($376,330), loss of fill ($101,813), legal and valuation fees (agreed at $6,000), plus interest to be determined.
The amount contended by the respondent was for nil compensation as a consequence of the resulting enhancement to the remaining land.
The findings of this Court on 29 September 1999 was for a total of $1,488,500 due to the claimant for loss of land ($1,375,500), plus loss of signage ($107,000), plus agreed legal and valuation fees ($6,000), less enhancement due to reconstruction of a service road ($963,102), giving total compensation due to the claimant of $525,398, plus interest due on those payments.
The Legislation
The general powers of this Court in respect of the awarding of costs are to be found in the provisions of s.41(9) of the Land Act 1962, which states:
" 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."
Any costs are further directed under s.27 of the Acquisition of Land Act 1967 which states:
" 27.Costs. (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.
(2) If the amount of compensation as determined is the amount finally claimed by the claimant in the proceedings or is nearer to that amount than to the amount of the valuation finally put in evidence by the constructing authority, costs, (if any) shall be awarded to the claimant, otherwise costs (if any) shall be awarded to the constructing authority."
In considering the actual quantum of the amounts claimed, I note that it has been found that it is the final position taken by the parties which is important. In Commissioner for Railways v. Buckler [1996] 1 Qd R 18, McPherson JA in the Court of Appeal found at p.23:
" Stated in general terms, what the court is now required to do in fixing the incidence of costs under this rule is look to the final positions taken up by the parties. In the case of the claimant, it is the quantum of compensation last claimed. Theoretically at least, its amount might not be known until the final address of counsel for the claimant. In practice, however, Section 24(2A) furnishes a disincentive against conduct like that. It does so by restricting the right to amend a claim once it has been filed in accordance with Section 24(2A) of the Act. Thereafter an amendment may be allowed; but on terms including payment of costs; see Section 24(3).
On the other hand, there seems to be no comparable restriction preventing the constructing authority from deferring disclosure of its final position until a late stage of the proceedings. It will be discoverable only from 'the amount of the valuation finally put in evidence by the constructing authority', which means that it cannot with confidence be known what the amount of it is until the construction authority closes its case."
In the current matter the final amounts led at the hearing, including legal and valuation fees, were for the claimant ($1,416,793) and for the respondent (nil), and those figures formed the basis of any discretion on costs in the matter.
The Cases Stated:
(a)The Claimant's Submission –
The claimant argues that there should be no order as to costs, bearing in mind the following factors in the matter:
· The claimant has been successful, in spite of the respondent at all times denying any liability to the claimant.
· The statutory bar of s.27(2) to the operation of the normal rule that costs follow the event, should not be interpreted to mean that it becomes just to order the exact opposite of the general rule.
· At no time has the respondent offered to the claimant money equal to or in excess of the sum assessed by the Court.
· That while the claimant has been found by the Court to be justly entitled to compensation, the respondent has fiercely contested the matter over a lengthy trial (seven days), including the engaging of both senior and junior counsel.
· It would be unjust to award costs against the claimant in view of the above actions of the respondent.
· The unchallenged evidence of verbal advice from representatives of the respondent to the claimant (Mr Carr), that the company would receive reasonable compensation for the land to be resumed, and the company's reasonable legal and valuation costs in determining compensation.
· The unchallenged evidence of Mr Carr that he was requested by the respondent's representative to refrain from lodging an appeal against the proposed resumption.
· The unchallenged evidence of Mr Carr that the respondent's representatives had also advised Mr Carr that he would be treated fairly, and if there was no objection, it could be treated swiftly and easily.
· The understanding of Mr Carr about the use of the words "reasonable legal and valuation costs in determining compensation", was interpreted by Mr Carr as wide enough to also include the ordinary meaning of the words, which included any costs of the Court proceedings.
· The respondent has breached the assurances that it gave to the claimant.
· In view of the above factors, it is unconscionable for the respondent to apply for any costs, and also unjust for costs to be awarded against the claimant.
· As a matter of policy it is unsound to send a message to the respondent, and to claimants, that the respondent is able to refuse to offer just compensation, and still obtain an order for costs. Such a message would allow the respondent to offer less than a just entitlement; and for claimants to settle for less than a just entitlement.
· Any message that encourages parties to seek less than a just compensation would be both contrary to the intentions of Parliament, and not an appropriate exercise of discretion.
· In assessing the justice of the situation the substance of the underlying transaction that gave rise to the litigation should be considered in light of the costs now being considered.
· The litigation arose from a compulsory acquisition of the land, against which the claimant was forced to take action.
· As the Crown is dealing with one of its citizens, a high standard of probity should be expected and required of the Crown in the matter.
(b)The Respondent's Submission –
The respondent provides the following reasons why, in its opinion, costs ought to be awarded to the respondent:
· The claim could only be described as exorbitant, as the claimant was aware at an earlier stage that the respondent would be seeking to offset any compensation by the value of any enhancement arising out of the scheme.
· The claimant was unsuccessful in respect of the fundamental aspect in the case of enhancement.
· The claimant was unreasonable in rejecting any enhancement in view of evidence from its own experts.
· The claimant's attitude in respect of enhancement made litigation unavoidable.
· There was no evidence of any behaviour upon the part of the respondent which would deny it being entitled to costs.
· The respondent was wholly successful in defending the claim for loss of fill; and substantially successful in respect of the claim for the loss of signage.
· There are no "special circumstances" which exist which might otherwise upset the usual rule that the successful party ought to be awarded costs.
Decision:
(i)The Key issues –
Before considering the implications on costs in the findings, I look to the key issues outlined by the parties. The claimant argues that Mr Carr had an understanding from his meetings with representatives of the respondent, that any claim for compensation would be afforded reasonable and fair consideration (19 June 1997), and as a consequence of that understanding, and those assurances, he had decided not to object against the proposal to resume part of his land (10 July 1997). Mr Carr was also of the understanding on 19 June 1997 that his costs of legal and valuation advice would be included in any fair and reasonable assessment of the loss.
The respondent, by comparison, concedes that it normally would have been aware that it would be required to compensate the claimant for any loss incurred in the resumption of the land and improvements. However, the respondent argues that the matter of possible enhancement of the remaining lands was an issue that was brought to the claimant's attention at an early stage (24 September 1997), after the resumption date (5 September 1997). There was no evidence supplied that the matter of enhancement had been raised by the respondent prior to the date of resumption, and in fact Mr Carr gave evidence that the representatives had agreed that the land was "worth $100,000 an acre".
In the matter of enhancement due to the construction of the service road, the claimant was aware of the existence of the consent order of the then Local Government Court of 25 August 1992. The claimant had also relied upon the evidence of Mr Brameld, the claimant's traffic engineering consultant, who argued that the conditions of the consent order indicated that some direct access would have been available to the service road, a key issue in considering any enhancement. Evidence was also given by Mr Just, the claimant's civil engineering advisor, who argues that if direct access to the service road could not be negotiated, then the claimant would have been advised to seek an alternative internal collector road system.
On the balance of that specialist advice in respect of the service road, and knowing that the respondent was committed to build the new service road, it would be reasonable to conclude that the claimant would have been aware that any savings to the claimant by not having to construct the service road, may be a matter of consideration of enhancement in any compensation due.
However, to balance that apparent awareness that the matter of enhancement was to be considered, there is also the matter of the further enhancement claimed by the respondent for the contribution to the roundabout and the overpass of the highway ($215,184), a matter not agreed to by the Court. That condition had also been part of the consent order, and considered by the claimant's technical advisors. That the enhancement was subsequently found not to include that matter, lends support to the claimant's decision to proceed to litigation, in spite of the respondent's determination to refuse to pay any compensation. On balance, I believe the claimant has not been exorbitant in his claim, as the decision of the Court partly vindicates his position.
(ii)The Powers of the Court –
In the matter of the powers vested in the Land Court in respect of the awarding of costs, I note that they are established entirely by legislation, but they are also fully or completely discretionary in nature. However, it has been held that in exercising that discretion, this Court must do so in a judicially sound manner, and by reference to relevant considerations. In this regard, I note the findings of the Land Appeal Court in Townsville City Council v. Moyses & Morris etc (1979) 6 QLCR 271, which said at p.273:
" The general rule, then, is that costs are in the discretion of the Court, but of course the discretion must be exercised judicially, that is, by reference to relevant considerations."
The general power to award costs was considered by the Full Court of the Supreme Court of Queensland in Wyatt v. Albert Shire Council [1987] 1 Qd R 486. The Full Court also considered the scope of a section of legislation which gave the Local Government Court power to "make such order as it thinks fit as to the costs of any preceding before it", which it saw as essentially the same as the power conferred upon the Land Court, and which was described by the Full Court as "complete" (p.488).
In seeking to understand the exercise of a judicial nature, I note in Wyatt the Full Court found at p.489:
" That can only mean for reasons that can be considered and justified. In saying that, we do not intend to imply that reasons must also always be given for awarding or withholding costs. In some, perhaps many cases the matter may be so obvious as not to require an explanation in the form of stated reasons. In such cases the findings themselves will ordinarily afford reason and justification for the decision on costs that follows. But where what has been done appears to lack rational justification either in the findings or in the reasons expressed for it, a question may arise whether the decision has been arrived at judicially. It may then be open to review the decision on costs as involving error or mistake of law."
In seeking also whether there were any rules which should be applied in exercising the discretion of the Court, I note the findings of the Land Appeal Court in Townsville City Council v. Moyses & Morris etc. (supra), at p.274, where the Land Appeal Court followed the guidance outlined in Middleton v. Freier and Others (1958) Qd R 351, where Philp J, speaking for the Full Court said at p.357:
"… where an unfettered discretion is given by statute or a rule no court can by its decision impose conditions upon the free exercise of that discretion by another court … ."
However, in Moyses the Land Appeal Court went on to explain the nature of the judicial decision at p.274:
"Second, where the Court is considering whether it should award costs to an authority, it could be wrong to have regard merely to the amounts of the claim and of the award and of the value put in evidence by the authority. We would think that usually it would be more relevant to enquire whether the conduct of the claimant, including his making of an exorbitant claim, if he has made one, has been such as to force the authority; unreasonably and unnecessarily, into litigation."
General guidance on costs in the matters of compensation were also reviewed by the Land Appeal Court in Yalgan Investments Pty Ltd v. The Council of the Shire of Albert (1997-98) 17 QLCR 401, at pp.406-408. In the Court below in that matter the learned Member, in the circumstances of that case, found that each party should bear its own costs of the appeal, arguing that the unusual circumstances of the rezoning of the land had an impact upon the determination of the highest and best use of the land. In his determination the Member was critical of each of the valuation methods adopted by the parties, and finally adopted a method which was a compromise of the two approaches.
On appeal of that decision the Land Appeal Court, having outlined the principles influencing the awarding of costs, found that the claimant's application for costs should be allowed in part. The decision on costs was rescinded, and the respondent was directed to pay the costs associated with a part of the hearing, as fixed by the Taxing Officer of the Supreme Court. Because both methods of valuation were rejected, the Land Appeal Court found that the rights of the claimant to seek costs, as its claim was nearest to the amount of compensation awarded, should not have been denied.
In determining that partial costs should be awarded in that matter, the Land Appeal Court drew support from two decisions of the Federal Court in Hughes v. West Australian Cricket Association (Inc) (1986) 8 ATPR 40 – 748, and also on Dodds Family Investments Pty Ltd v. Lane Industries Pty Ltd (1993) 36 IPR 261, at 271 and 272. A review of the above decisions was analysed by the Land Appeal Court in Kabale Holdings Pty Ltd v. Director-General, Department of Transport (1997-98) 18 QLCR 166, at pp.200-201.
In the matter of Nadco Pty Ltd v. Chief Executive, Department of Transport (A96-05), 18 July 1997, unreported, the learned Member found costs against the respondent on the basis that while the claimant was not wholly successful, the facts available supported that the claimant had not acted unreasonably in pursuing the claim. The initial claim by the claimant amounted to $1,193,593.63, the respondent contended for $483,500, and the Land Court found for compensation at $718,611. On the final day of the hearing the claimant, with leave from the Court and without opposition from the respondent, amended the claim to $892,000.
On appeal to the Land Appeal Court (see Chief Executive, Department of Transport v. Nadco Pty Ltd (1997-98) 18 QLCR 408, the Land Appeal Court rejected the claim by the constructing authority for a reassessment of the amount of compensation, but rescinded the Member's direction in respect of the awarding of costs. The Land Appeal Court found at p.418:
"A clear intention evident in s.27(2) is to discourage exorbitant claims in compensation cases. It would not be unreasonable to describe the claim to $1,193,593.63 as exorbitant since it exceeded the sum arrived at by the member by such a large amount. It remained the claim until nearly all of the costs of the hearing had been incurred. With hindsight it can be seen that the claimant was permitted the substantial advantage of avoiding any possibility of an order for costs against it by its late amendment; to add to that an order for costs in its favour went far too far we think. In the result we conclude that the member's discretion on the matter of costs miscarried and that she should have made no order as to costs."
I turn then to the claim by both parties that they have been successful in parts of their appeal. The matter of which party has won or lost in a compensation matter was discussed in Minister for the Environment v. Florence (1980-81) 45 LGRA 127, where Wells J said at p.149:
"Upon an ordinary claim in the general jurisdiction it is, generally speaking, obvious who has won and who has lost, and correspondingly clear why costs usually follow the event. Upon a claim for compensation for land compulsorily acquired, it is not, generally speaking, appropriate to speak of one party as having won; compensation is awarded to one who had already been given, by statute, the right to receive it. It is therefore as just to say of the latter sort of case that the claimant ought, in the absence of special circumstances, to receive his reasonable costs of obtaining the compensation that is, ex hypothesi, his due, as it is to say of the former sort of case that prima facie costs follow the event in favour of the party who has won. But costs are, as always, discretionary, and no hard and fast rule will ever be allowed to occupy part of an area controlled by a discretion, however predictable the result of its exercise may be in certain sorts of cases."
In respect of the claimant's argument that the respondent has fiercely contested the matter over an extended hearing of seven days, and has therefore forced the claimant unreasonably into a costly trial, I am reminded of the need to ensure that parties are not dissuaded from canvassing all issues which might be relevant to the decision. In such circumstances it would be inappropriate to solely consider the length of the hearing, when considering whether costs should be awarded. (See Dodds Family Investments Pty Ltd v. Lane Industries Pty Ltd (supra).)
Further, when considering whether in the current matter the claimant has acted reasonably in continuing his appeal to this Court for the loss of part of his land, I note the finding of the learned Member (later President) in Moyses & Morris v. Townsville City Council (1979) 6 QLCR 21, who said at p.36:" It is reasonable in my view for a dispossessed owner to approach the Court for a determination of compensation when a resuming authority contends that despite the loss of a substantial area of land no payment of compensation is payable."
In considering the prosecution of this matter, I find nothing to lead me to the conclusion that either party has sought to prolong the hearing of the evidence, and I find no fault in that regard. I find no evidence of any attempt by either party to seek any advantage to their case in respect of the awarding of costs, by belatedly amending the quantum of the claim, or counterclaim. (See Nadco Pty Ltd v. Chief Executive, Department of Transport (supra) at pp.9-10).
In the matter of whether there were any special circumstances existing in this matter, I note the findings of the Land Appeal Court in WH Bowden v. Valuer-General (1980-81) 7 QLCR 138, where in dealing with the matter of costs, 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 the 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.
While those guidelines are of assistance in the general rule for this Court, I am aware that strict adherence to any preoccupation with the adoption of such a general rule may well involve an error of law that is open to correction on appeal. Indeed, that was enunciated in Wyatt v. Albert Shire Council (supra), where the Full Court said at p.489:
"To say that, however, is not to say that the discretion may be exercised in an arbitrary manner. In England, where since 1890 the discretion of the High Court over costs is also acknowledged to be unfettered by statute, it continues to be recognised that the discretion must be exercised judicially: see Knight v. Clifton [1971] Ch 700. As the judgments in that case show, such a power does not exclude resort to the 'settled practice' of a court where such a practice has evolved; but, to refer once again to what was said by Macrossan J in Assignment Pty Ltd v. Kirby (supra), a purported exercise of discretion 'which fails because the mind is closed to relevant considerations through a rigid adherence to preconceptions' involves an error of law that is open to correction on appeal."
In considering any exercise of discretion to award costs, if any, I am also aware of guidance from the High Court of Australia in Oshlack v. Richmond River Council (1997) 96 LGERA 173 (and also (1998) 193 CLR 72), where the High Court said at p.193:
" The expression the 'usual order as to costs' embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. …
As a matter of policy, one beneficial by-product of this compensatory purpose may well be to instil in a party contemplating commencing, or defending, litigation a sober realisation of the potential financial expense involved. Large scale disregard of the principle of the usual order as to costs would inevitably lead to an increase in litigation with an increased, and often unnecessary, burden on the scarce resources of the publicly funded system of justice."
In that matter in the primary Court Stein J had seen, in his opinion, arguments of public interest which had been argued by the appellant (Oshlack), and for which Stein J had concluded to depart from the ordinary compensatory rule, and refused to award costs against the unsuccessful party. The Supreme Court of Appeal in Richmond River Council v. Oshlack (1996) 91 LGERA 99, overturned the decision of Stein J, and ordered costs to follow the general rule. On appeal, the High Court reversed the decision of the Court of Appeal, determining that the Court of Appeal had erred in disturbing Stein J's order that there be no order for costs.
The principle to be followed in that matter is that, while the High Court was fully conscious of the potential for the awarding of costs to be a salutary measure as a kerb upon unnecessary burdens upon scarce resources in the justice system, the High Court saw no need to substitute its own opinions for the well-founded opinions of the primary Judge, who heard the full range of the evidence. Adopting that principle, and in the absence of evidence of any arbitrary decision process, or any sort of misconduct by either party, or any irrelevant matter being considered, I am led to accept that an unfettered exercise of discretion is likely to have been judicially determined when those factors do not occur.
In exercising my discretion on the awarding of costs in this matter, I am conscious that my decision must be judicially sound, and based entirely upon the evidence before me. I accept the claimant's concern that a clear message of fairness should be seen by both the respondent and other claimants in society. However, it is not the role of this Court to seek to provide policy for society; as that is more properly the role of the Parliament, and the Government of the day. During the evidence there was also no suggestion that the matter should be seen as a "test case" on any principle involved, other than the normal notice to be taken of precedents. However, as a primary court, the matter of precedent is also more properly the role of superior courts.
Conclusion
In the end I must exercise my discretion based entirely upon the relevant facts, and the conduct of the parties. The results of that discretion may be found in answers to the following questions:
(i)Did the claimant act reasonably in making his claim?
(ii)Were the separate components of the claim by the claimant vindicated by the Court?
(iii)Did the respondent act reasonably in resisting the claim?
(iv)Were the separate components of the respondent's arguments vindicated by the Court?
(v)Were there any special circumstances in the matter which would influence the normal rule that costs should follow the event?
(i)Did the Claimant Act Reasonably?
As previously noted, the claim by the claimant is not seen to be exorbitant, although the claimant would have been aware that the matter of enhancement by the respondent was an issue to be decided. As enhancement generally is a matter of major dispute between parties, it is inevitable that the contesting of that issue was likely to have led to a hearing of some duration. However, such a conclusion does not of itself infer that the matter was to take the role of a test case of some wider concern in the community.
The evidence indicates that the claimant did rely upon preliminary advice from representatives of the respondent that the matter could be resolved without lengthy litigation. Whether the claimant has misinterpreted some of that preliminary advice, and had therefore placed ill-founded confidence in such an outcome, is a matter of conjecture. However, it is noted that while Mr Carr was an experienced businessman in another area of activity, he was relatively inexperienced in matters dealing with land development, and certainly compulsory resumption of land. While Mr Carr may have been overly naive in such acceptance of advice about the eventual outcome of the resumption, there is nothing to demonstrate that he did not act in good faith. The answer to this question is that the claimant did act reasonably in this claim.
(ii)Was the Claimant Successful?
The assertion by the claimant that he was successful in his claim for compensation needs to be seen in perspective. That he did receive an amount of compensation, in spite of the respondent's assertion that no monies were due because of enhancement, provides some evidence of success. However, the claimant had rejected any quantum of enhancement in his case, a matter partly supported by the Court, and on that issue the claim was unsuccessful.
In the matter of the claim for loss of fill and the loss of signage, on the quantum of the amounts claimed and the amounts awarded, the claimant was less than successful. Overall the decision of the Court more favours the amount proposed by the respondent than the amount proposed by the claimant. In accordance with directions found in s.27(2) of the Acquisition of Land Act 1967, any benefit of doubt in respect of whether costs should apply would rest with the respondent. The answer to this question is that the claimant was not overall successful in his claim.
(iii) Did the Respondent Act Reasonably?
As noted previously, the conduct of the case by both parties was of the highest professionalism, and there were no attempts to unfairly represent the parties. The fact that the respondent at no time made any offer of monies in order to resolve the matter, must also be seen in perspective. As a public authority the respondent has a responsibility to ensure public funds are effectively utilised. It would be remiss of the respondent to have ignored the potential that enhancement could have reduced the level of compensation due for the loss of the land.
While it may have been a prudent omission by the respondent to not declare any likelihood of enhancement during negotiations prior to the resumption, that it subsequently did raise that issue only 19 days after the date of resumption, was likely to have been seen by the claimant in an adverse light. On balance, however, there would appear to have been a succession of conferences on the matter, and there were reasonable lines of communication open between the parties. I accept the respondent's argument that the claimant's attitude in respect of whether enhancement had occurred made litigation unavoidable. The answer to this question is that the respondent has acted in a reasonable manner.
(iv) Was the Respondent Successful?
The respondent was successful in his argument for recognition of the enhancement associated with the service road; but unsuccessful with his assertion in respect of the balance of his enhancement argument. He was also vindicated by the refusal of any allowance for loss of fill, and partly vindicated by the quantum allowed for loss of signage. The quantum of the loss of land also exceeded the amount argued by the respondent. The resulting compensation awarded by the Court ($525,398) was nearer to the final figure put in evidence by the respondent (nil), than that put in evidence by the claimant ($1,416,793). On guidance supplied by s.27(2) of the Act, any benefit of doubt should be awarded to the respondent. The answer to this question is that the respondent overall was more successful than the claimant.
(v)Were there any Special Circumstances in the Matter?
In seeking to ascertain whether the current matter could be interpreted to contain any "special circumstances", I note the decision of the primary court in Oshlack v. Richmond River Shire Council (1994) 82 LGERA 236, where Stein J concluded that special circumstances and the public interest of that matter warranted departure from the normal rule. That determination was later supported by the High Court. In exercising any judicial discretion, I am also conscious that such discretion may only be challenged in accordance with the principles identified by the High Court in House v. The King (1936) 55 CLR 499. In that matter the High Court said at p.504:
"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
In exercising judicial discretion, it is also important that it is done so in accordance with the established principles and factors directly connected with the litigation. The guiding principle of the exercise of discretion was also clarified by the Court of Appeal in Re: Elgindata Limited (No. 2) [1993] 1 All ER 232, where Nourse LJ said at p.237:
"The principles are these. (1) Costs are in the discretion of the court. (2) They should follow the event, except when it appears to the court that in the circumstances of the case some other order should be made. (3) The general rule does not cease to apply simply because the successful party raises issues or makes allegations on which he fails, but where that has caused a significant increase in the length or cost of the proceedings he may be deprived of the whole or a part of his costs. (4) Where the successful party raises issues or makes allegations improperly or unreasonably, the court may not only deprive him of his costs but order him to pay the whole or a part of the unsuccessful party's costs."
In the current matter there was no suggestion of a public interest issue; it is not appropriate for this Court to seek to provide policy direction for the community; there is no evidence of any arbitrary actions or misconduct by either party in the litigation; there is no evidence of either party seeking to obtain any advantage in respect of the awarding of costs; and neither party has acted capriciously in the matter. In view of those factors, I believe there are no special circumstances for consideration in this matter.
On the evidence supplied, and balancing the relative outcomes of the final decision, I am not persuaded that the respondent is not entitled to the normal rule that costs should follow the event. As the final quantum of the amount awarded is nearer to the amount finally led by the respondent, than that submitted by the claimant, I order that the claimant pay to the respondent the costs of and incidental to the hearing and determination of the claim for compensation. The amount of such costs shall be ascertained and fixed by the Registrar of the Supreme Court in Brisbane, pursuant to s.41(9) of the Land Act 1962.
NG DIVETT
MEMBER OF THE LAND COURT
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