Solon Theo Family Trust v Department of Natural Resources and Water

[2009] QLAC 3

LAND APPEAL COURT OF QUEENSLAND

CITATION:

Solon Theo Family Trust v Department of Natural Resources and Water [2009] QLAC 0003

PARTIES:

SOLON THEO FAMILY TRUST
(appellant)
V
CHIEF EXECUTIVE, DEPARTMENT OF NATURAL RESOURCES AND WATER

(respondent)

FILE NO:

LAC2007/0821

DIVISION:

Land Appeal Court of Queensland

PROCEEDING:

Application for costs

DELIVERED ON:

3 April 2009

DELIVERED AT:

Brisbane

THE COURT:

White J
Mr RS Jones, Member of the Land Court

Mr PA Smith, Member of the Land Court

ORDERS:

The appellant is to pay 40 percent of the respondent’s costs of and incidental to the appeal:

Such costs are to be assessed by the appropriate assessing officer of the Supreme Court of Queensland (being a person who is a “cost assessor” as that term is defined in Rule 679 of the Uniform Civil Procedure Rules) on the standard basis using the Supreme Court scale of costs current at the date of this order.(a)  

This order is made an order of the Supreme Court of Queensland and may be enforced in the Supreme Court.(b)  

CATCHWORDS:

Costs on appeal to the Land Appeal Court – section 70 Valuation of Land Act 1944 – whether there was frivolous or and/or vexatious behaviour on part of appellant

APPEARANCES:

The application was dealt with on the papers

Background

1. The appellant, the Solon Theo Family Trust, is the registered proprietor of several lots of land situated in the Cooloola and Tiaro Shires.  Dissatisfied with the respondent’s assessment of the unimproved value of its lands the appellant lodged a number of appeals in the Land Court.  On 5 September 2007, the Land Court published its reasons,[1] dismissing nine of the appeals and allowing two, in part.  The appellant subsequently appealed each of the determinations of the Land Court to this Court as one appeal. 

   [1]     Solon Theo Family Trust v Department of Natural Resources and Water [2007] QLC 0060.

2. In the proceedings before this Court the appellant was represented, as it was in the Land Court, by Mr Sol Theo.  As was identified by this Court in disposing of the substantive appeals against the decision of the Land Court,[2] the appellant’s appeal was obfuscated both by Mr Theo’s style of advocacy and the diffuse nature of his written submission.  The appellant’s grounds of appeal consisted of 16 numbered paragraphs running over nine pages, with some of the numbered paragraphs including numerous sub-parts.  In addition, the appellant also expressly relied on all of the submissions made on its behalf in the Land Court proceedings.  The written submissions referred to transcript references with little apparent purpose.  During the conduct of the appeal it was often difficult to identify with any precision the alleged error said to have been made by the Court below.

   [2]     Solon Theo Family Trust v Department of Natural Resources and Water [2008] QLAC0227 at para [5].

3. In the proceedings before the Land Court the Judicial Registrar summarised the relevant issues raised in the following way:[3]

   [3] Reasons at para [15].

   “a.    Was the valuation methodology adopted by the respondent valid?

   b.   Was the increase in valuation of the subject properties excessive, given the average increase in south-east Queensland?

   c.    Did the proposed Traveston Dam affect valuation of the properties?

   d.   Did the Vegetation Management Act 1999 impact on the valuation of properties?

   e.    Was the sales evidence used by the respondent properly comparable to the subject?

   f.     Was the Maurici principle relevant in current circumstances?

   g.   Was proper allowance made for lack of improvements and availability of services?

   h.   Can the land gazetted as “rural” but not used for rural residential purposes be valued as rural residential?”

   This Court considered it convenient to follow the Judicial Registrar’s identification of the substantive issues in dealing with the appeal before it.

4. On 19 December 2008 this Court delivered its reasons dismissing the appellant’s appeal and the respondent then indicated that he would be seeking his costs of and incidental to the appeal.  The Court ordered:

   “1.    The respondent file and serve any application for costs and supporting submissions by 4.00pm Friday, 30 January 2009.

   2.     The appellant file and serve a response to any such application by 4.00pm Friday, 20 February 2009.”

   Neither party sought to be heard to supplement their written submissions. 

Compliance with the orders

1. On 28 January 2009 the respondent filed its outline of submissions on costs.  Those submissions were, on 24 February 2009, supplemented by a formal application for costs.  We do not consider the failure by the respondent to file the formal application for costs on 28 January 2009 to be a decisive omission in the circumstances of this case.  The respondent made abundantly clear his intentions as to costs. 

2. On 18 February 2009 the appellant filed two documents being an affidavit of Mr Theo sworn 18 February 2009 and a further document titled:

   “Sol Theo’s repudiating response of the respondent’s alleged application for costs relevant to the Court’s order of the 19.12.2008 … ”.

   This document comprises of eight pages upon which Mr Theo relied to show why no costs order should be made against “him”.  As was observed by this Court in the substantive appeals[4] Mr Theo, in his dealings with the Court, has tended to treat the appellant trust as his alter ego.  Should any costs orders be made in favour of the respondent they will be made against the appellant and not Mr Theo in person.

   [4] LAC reasons – para [3].

3. In his affidavit Mr Theo asserted, among other things, that he did not receive the respondent’s costs submissions until 2 February 2009 when a passer-by handed him a “white soiled envelope” containing the respondent’s submissions.  That passer-by informed Mr Theo that the envelope containing the submissions had been found on the road. 

4. On 25 February 2009, the registrar was instructed to write to the legal officer employed by the respondent having the conduct of these appeals asking for a response to the allegations concerning service. 

5. On 11 March 2009 the respondent filed two affidavits, being the affidavit of a Mr Conallin and an affidavit of Mr Prasad.  Mr Conallin is a real estate valuer employed by the respondent and Mr Prasad a lawyer also employed by the respondent.  The affidavit of Mr Conallin seeks to establish that it was more likely than not that service of the respondent’s costs submissions was carried out in an appropriate way.  It is not necessary to deal with Mr Conallin’s affidavit in any detail other than to say that we find it unpersuasive as it expresses little more than an opinion about a matter in circumstances where there are insufficient grounds to substantiate that opinion. 

6. Mr Prasad deposes that on 29 January 2009 he contacted a Mr Field, also an employee of the respondent, to arrange for the service of the submissions on Mr Theo.  Mr Field had been responsible on other occasions for the service of documents at the address for service of the appellant.  More importantly, Mr Prasad deposes to the fact that Mr Field confirmed by email correspondence the date, time and method of serving the submissions on Mr Theo.  This email relevantly states:

   “I put the documents directly into his letterbox today (29^th Jan 09) at around 11.50am.

   The property clearly had people living there, although I didn’t see anybody when I was delivering the documents.”

7. Mr Field is presently on recreation leave, travelling and studying in “provincial China” and is not able to prepare an affidavit. 

8. Mr Theo contends that the respondent’s application for costs ought be dismissed due to his failure to comply with the orders made by this Court.  Notwithstanding Mr Theo’s unsworn response to the affidavits of Messrs Conallin and Prasad, on balance we find that the respondent did effect service on the appellant on 29 January 2009.  Second and more importantly, even if service of the respondent’s submissions did not occur until 2 February 2009 as alleged, there is no material to show that the appellant was in any way prejudiced by that late service.  As referred to above Mr Theo, on 18 February 2009, filed detailed written material seeking to identify why it would be inappropriate to make costs orders in favour of the respondent in the circumstances of this appeal.  No issue of prejudice was raised in that material nor the further material filed by Mr Theo on 12 March 2009.  

The merits of the application

1. Section 70 of the Valuation of Land Act 1944 (VLA) governs the operation of the Court’s discretion to order costs.  It provides:

   “70    Costs of appeal against valuation

   (1)Subject to subsection (2), each party to an appeal must bear the party’s own costs for the appeal.

   (2)The court may only order costs for an appeal, including allowances for witnesses attending for giving evidence at the appeal, as it considers appropriate in the following circumstances—

   (a)   the court considers the appeal, or part of the appeal, to have been frivolous or vexatious;

   (b)   a party has not been given reasonable notice of intention to apply for an adjournment of the appeal;

   (c)   a party has incurred costs because the party is required to apply for an adjournment because of the conduct of the other party;

   (d)   a party has incurred costs because another party has defaulted in the court’s procedural requirements;

   (e)   without limiting paragraph (c), a party has incurred costs because another party has introduced, or sought to introduce, new material;

   (f)    a party does not properly discharge the party’s responsibilities in the appeal.”

2. In support of his application for costs the respondent relied on subsections (2)(a) and (f) of s.70. However, when regard is had to the written submissions made on his behalf, it is fairly clear that in reality the respondent primarily relies on the “frivolous or vexatious” provisions of s.70.

3. The appellant disputes the respondent’s entitlement to costs and, in particular, asserts that:

   ·The Land Appeal Court in determining the appeals against the appellant “overlooked the veracity of the appellant’s submissions”.

   ·Nowhere in the decision of the Judicial Registrar was the appellant’s approach described as being either frivolous or vexatious. 

   ·As was identified by this Court, in the proceedings before the Land Court the appellant was successful in part in respect of two of the appeals against the valuations of the respondent.

   ·That the public should not be discouraged or intimidated by the fear of incurring legal costs in pursuing their rights to object and appeal under the VLA.

   ·It was the respondent who was responsible for causing unnecessary delays in the determination of the proceedings.

   ·The valuations relied on by the respondent contained numerous shortfalls, errors, omissions and corrections.

4. In support of his submission to the effect that it would be contrary to public policy for the Land Appeal Court to award costs, Mr Theo refers to the decision of this Court in Bowden v The Valuer-General.[5]  It is true that that this Court in Bowden expressed a general proposition to the effect that in revenue cases access to the courts should be available to the public without fear of costs being awarded except in special cases.  However, more recently, this Court considered a line of earlier decisions of the Land Appeal Court including Bowden and determined that while ease of access by the public to the courts in revenue cases might be a desirable objective, particularly with respect to first instance appeals, and that a cautious approach to costs in such cases is justified, the matter of costs should always be approached with an open mind and it is a matter that is always to be decided according to the facts and circumstances of each individual case.[6] 

   [5] [1980] 7 QLCR 138 at 147.

   [6]     PT Limited & Westfield Management Limited v Department of Natural Resources and Mines [2007] QLAC 0121 at paras [20] to [23] and para [34].

5. In this appeal the respondent was successful in all respects.  The success was emphatic.  In many (if not most) instances the grounds of appeal lacked any substance.  However, we are not prepared to find that the whole of the appeal could be described as being frivolous or vexatious.  We would observe though that in reaching this conclusion the scales were finely balanced. 

6. After careful consideration of the material before us we have reached the conclusion that in respect of three grounds raised in the appeal they could fairly be described as being frivolous and/or vexatious.  They were frivolous in the sense of raising matters of “little or no weight, worth or importance (on value); having no reasonable grounds; not worthy of serious notice; or characterised by lack of seriousness or sense” and vexatious in that they were productive of serious and unjustifiable trouble.[7]

   [7]     Definition of “frivolous”, Macquarie Dictionary applied in Mudie v Gainriver Pty Ltd (No 2) (2003) 2 QdR 271 at 283-284, paras [35] and [36] per McMurdo P and Atkinson J.

7. These grounds concern the so called “Maurici principle”[8] the “rural residential assessment”[9] and the allegations of bias.[10]

   [8] [2008] QLAC 0227 at paras [18] to [22].

   [9]     At paras [25] and [26].

   [10]     At paras [27] to [32].

8. In respect of the first of these matters in his grounds of appeal to this Court[11] it was alleged that:

   “the Judicial Registrar ignored the fragrant (sic) admission by the respondent’s chief witness, who accepted that the said precedent did effect the lands in question, and this contrary to the Judicial Registrar’s finding”. 

   During oral argument Mr Theo made submissions along the same lines.  However, when he was asked to take the Court to the relevant evidence to support these allegations he was unable to do so.  Not only was Mr Theo unable to point to any evidence to support his allegations but there was, to the contrary, specific evidence by the respondent’s valuers that the precedent established in Maurici had in fact been considered.  In this context not only did this ground have no substance, it also involved an element of misrepresentation if not attempted deception. 

   [11]     Appeal book p.563.

9. Turning to the second matter the position of the appellant was entirely misconceived and lacking in merit.

10. In respect of the third matter not only was Mr Theo unable to point to any evidence to support his allegations of bias, a fair reading of the transcript of the proceedings below reflects an entirely contrary situation.  The Judicial Registrar conducted what was clearly a difficult case to manage in an even handed and fair manner.  The allegations of bias were little short of an unjustifiable personal attack upon a diligent and competent judicial officer. 

11. By reference to the matters raised in the appeal as identified in the substantive decision of this Court we have reached the conclusion that those matters which could fairly be described as being frivolous and/or vexatious in character probably accounted for just less than fifty percent of the Court’s time taken up with the appeal.

Orders

The orders of the Court are:

The appellant is to pay 40 percent of the respondent’s costs of and incidental to the appeal:

(a) Such costs are to be assessed by the appropriate assessing officer of the Supreme Court of Queensland (being a person who is a “cost assessor” as that term is defined in Rule 679 of the Uniform Civil Procedure Rules) on the standard basis using the Supreme Court scale of costs current at the date of this order.

(b)   This order is made an order of the Supreme Court of Queensland and may be enforced in the Supreme Court.

WHITE J

RS JONES
MEMBER OF THE LAND COURT

PA SMITH
MEMBER OF THE LAND COURT