Sorrento Medical Services Pty Ltd v Chief Executive, Department of Main Roads

[2006] QLAC 25

LAND APPEAL COURT OF QUEENSLAND

CITATION:

Sorrento Medical Services Pty Ltd v Chief Executive, Department of Main Roads  [2006] QLAC 25

PARTIES:

Sorrento Medical Services Pty Ltd
(appellant)

v.

Chief Executive, Department of Main Roads
(respondent)

FILE NO:

LAC2005/0487

DIVISION:

Land Appeal Court of Queensland

PROCEEDING:

Decision on costs of appeal

ORIGINATING COURT:

Land Court of Queensland

DELIVERED ON:

11 May 2006

DELIVERED AT:

Brisbane

HEARD AT:

Written submissions

JUDGE
MEMBERS

Justice Philippides
Mr RP Scott
Mrs CAC MacDonald

ORDER:

1.  It is ordered that the appellant pay the respondent's costs of and incidental to the appeal to be assessed on the standard basis.

2. The costs are to be decided by the appropriate assessing officer of the Supreme Court, under the scale of costs provided by law for proceedings in the Supreme Court.

CATCHWORDS:

Practice and Procedure – Costs of appeal hearing – Respondent constructing authority successful – Unfettered discretion in Appeal Court to award costs – Usual rule that costs follow the event – Nothing in appeal to justify departure from usual rule for appeal hearing – Costs awarded to respondent.

COUNSEL:

Mr D Quayle for the respondent

SOLICITORS:

Short Punch and Greatorix for the appellant
Crown Solicitor, Crown Law for the respondent

1. On 31 March 2006, this Court disallowed an appeal by Sorrento Medical Service Pty Ltd against a decision of the Land Court that the Land Court has no jurisdiction to hear and determine a claim for compensation under the Acquisition of Land Act 1967.

2. The respondent has sought an order that the appellant pay the respondent's costs of and incidental to the appeal on the basis that the respondent was wholly successful in the appeal and there was nothing about the case that would warrant a departure from the orthodox rule that costs follow the event.

3. The appellant has submitted that s.34 of the Land Court Act 2000 and s.27 of the Acquisition of Land Act give the Land Appeal Court a general and wide discretion with respect to costs.  The appropriate order, the appellant submitted, is that each party should bear its own costs of the appeal.  In support of this submission, the appellant said that the issue as to whether the appellant had an interest in the land was arguable.  Further, the appellant had been issued with a Notice of Intention to Resume the subject land and the threshold question of whether the appellant had an estate or interest in the land was first raised by the learned President at the commencement of the proceedings in the Land Court.  The appellant said that the President had made no order as to costs leaving each party to bear their own costs of the proceedings in the Land Court.  

4. Section 34(1) of the Land Court Act (which by virtue of s.72 applies to the Land Appeal Court) provides that subject to the provisions of that Act or another Act to the contrary, the Land Court may order costs for a proceeding in the court as it considers appropriate.

5. The discretion given to this Court by s.34(1) of the Land Court Act is unfettered but the discretion must be exercised judicially, that is, for reasons that can be justified and by reference to relevant considerations (Wyatt v Albert Shire Council (1987) 1 QdR 486 at 489; Kabale Holdings Pty Ltd v Chief Executive, Department of Transport (1997-98) 18 QLCR 166 at 198). In Barns v Director-General, Department of Transport (1997) 18 QLCR 133, the Land Appeal Court said (at 135) that the general rule that costs will usually follow the event is one which is deeply embedded in our law. However, the Court went on to say (at 136) that the authorities justify some flexibility in the application of the general rule against a dispossessed owner.

6. In this case, the appeal against the decision of the Land Court was dismissed.  Since our decision in the substantive appeal means that the appellant is not a dispossessed owner, it is not entitled to the benefit of the flexibility referred to in Barns.  We can see no reason for departing from the general rule that costs will follow the event.  In the circumstances, the respondent is entitled to its costs.

ORDERS:

1.It is ordered that the appellant pay the respondent's costs of and incidental to the appeal to be assessed on the standard basis.

2.The costs are to be decided by the appropriate assessing officer of the Supreme Court, under the scale of costs provided by law for proceedings in the Supreme Court.

PHILIPPIDES J

JUSTICE OF THE SUPREME COURT

RP SCOTT

MEMBER OF THE LAND COURT

CAC MacDONALD

MEMBER OF THE LAND COURT