Spars Pty Ltd v Brisbane City Council
[2007] QLC 35
•23 April 2007
LAND COURT OF QUEENSLAND
CITATION: Spars Pty Ltd v Brisbane City Council [2007] QLC 0035 PARTIES: Spars Pty Ltd (ACN: 113 327 905) as trustee
(applicant)v. Brisbane City Council
(respondent)FILE NO: A2007/0024 DIVISION: Land Court of Queensland PROCEEDING: Applications for costs DELIVERED ON: 23 April 2007 HEARD AT: Brisbane DELIVERED AT: Brisbane MEMBER: Mr RS Jones ORDERS: (i) The applicant is to pay the respondent's costs of and incidental to the application filed 21 March 2007 such costs to be assessed on the standard basis.
(ii) The applicant is to pay the respondent's costs of and incidental to the application filed on 12 April 2007 such costs to be assessed on the standard basis.
CATCHWORDS: Costs – s.34(1) Land Court Act 2000 – function of orders as to costs – consideration of application of usual orders as to costs – consideration of disentitling conduct. APPEARANCES: Mr G Allan with Mr P Walker of counsel instructed by Conomos Lawyers, for the applicant.
Mr M Hinson SC with Mr S McLeod of counsel instructed by D L A Phillips Fox for the respondent.
Spars Pty Ltd, the applicant, commenced proceedings in this Court seeking what was essentially declaratory relief concerning the resumption of its land by the Brisbane City Council, the respondent.
The relief sought was resisted by the respondent on three grounds namely:
(i)The Land Court did not have the jurisdiction to grant the relief.
(ii)On a proper construction of the Acquisition of Land Act 1967 (ALA) the respondent was not required to treat the notice of 9 March 2007 as if it were a new or original notice of intention to resume.
(iii)In any event, if it was found that compliance with sections 7 and 8 of the ALA was required, in the circumstances of the case, non compliance did not render the notice of 9 March 2007 invalid or otherwise unlawful.
On 12 April 2007 I gave my reasons for dismissing the application. I decided that the Land Court did not have the jurisdiction to grant the relief sought and, for the reasons set out in my decision, I also addressed the statutory construction arguments raised by both sides.
On 12 April 2007 the applicant filed a further application seeking to have the Minister for Natural Resources and Water and the Minister for Transport and Main Roads joined as parties to the application for declaratory relief. This application was successfully opposed by the respondent.
The respondent applied for costs in respect of both applications. The applicant opposes the orders sought and, in fact, argues that the respondent should pay its costs.
Relevantly s.34(1) of the Land Court Act 2000 provides:
"(1) Subject to the provisions of this or another Act to the contrary, the Land Court may order costs for a proceeding in the court as it considers appropriate."
It is important to bear in mind that costs are not ordered as punishment of the unsuccessful party to litigation: In Latoudis v Casey[1] Mason CJ at 543 said:
"If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings."
At 567 of Latoudis McHugh J made observations to similar effect incorporating circumstances of "close" litigation and the "reasonableness" of the unsuccessful party. His Honour said:
"The order is not made to punish the unsuccessful party. Its function is compensatory. Thus, in civil proceedings an order may, and usually will, be made even though the unsuccessful party has nearly succeeded or has acted reasonably in commencing the proceedings. It may, and usually will, be made even though the action has failed through no fault of the unsuccessful party."
[1](1990) 170 CLR 534: See also Oshlack v Richmond River Council (1998) 193 CLR 72 at 75 per Brennan CJ and at 97 per McHugh J.
In Oshlack v Richmond River Council McHugh J, who with Brennan CJ dissented in the event, at paragraph 67 said in respect of the expression "usual order as to costs" that it embodied the important principle that a successful party is entitled to an award of costs save for only "limited exceptions". In a similar vein, the Land Appeal Court in the unreported decision of Sorrento Medical Services Pty Ltd v Department of Main Roads[2] referred to the general rule that costs usually follow the event as being one "which is deeply embedded in our law". In the Chief Executive, Department of Main Roads v Regan & Ors[3], the Land Appeal Court relevantly said:
"The general rule is that costs ordinarily follow the event, unless there are special circumstances warranting departure from that general rule."
[2] [2006] QLAC 0025 at para 5.
[3] [2002] 22 QLCR 151 at 152
In the context of the "certain limited exceptions" referred to by McHugh J in Oshlack, in paragraphs 69 and 70 his Honour identified that the traditional exceptions to the usual rule focus on disentitling conduct on the part of the successful party and, that apart from "… anomalous examples in the equity jurisdiction" there were very few, if any, exceptions to the application of the usual orders as to costs rule outside the area of disentitling conduct.
It seems to me that there are essentially two reasons or matters upon which the applicant relies to resist the orders sought by the respondent. In summary they are:
(i)it could not be said that the first application was meritless, particularly in circumstances where there was no meaningful guidance by way of precedent.
(ii)there was sufficient misconduct on the part of the respondent to disentitle it from the benefit of costs orders. In this context it was also submitted that an important consideration is that respondent was obliged to act as a "model litigant".
A fall back position was also advanced on behalf of the applicant to the effect that, as it argued on 29 March 2007 that the jurisdictional issue should have been determined as a separate and preliminary point, any costs orders in favour of the respondent should be limited.
As to the first of the matters it is my opinion that the lack of any helpful precedent and/or that the case advanced on behalf of the applicant was arguable are not sufficient reasons to justify a departure from the usual orders as to costs.
As to the second of the matters raised on behalf of the applicant I will proceed on the basis that the respondent was required to act as a model litigant. Mr Allan, counsel for the applicant, referred me to the decision of the Full Court of the Federal Court in Scott v Handley[4] where that Court, after referring to the obligation of the model litigant to act to a standard of fair play, at paragraph 45 said:
"[45] As with most broad generalisations, the burden of this fair dealing standard is best appreciated in its particular exemplifications in individual cases. The courts have, for example, spoken positively of a public body's obligation of "conscientious compliance with the procedures designed to minimise cost and delay": … and of assisting "the court to arrive at the proper and just result": … And they have spoken negatively, of not taking purely technical points of practice and procedure: … and of not unfairly impairing the other party's capacity to defend itself: … and of not taking advantage of its own default: …"
[4] [1999] 58 ALD 373 at 383
When asked to identify, by reference to any evidence before the Court, what acts or omissions on the part of the respondent amounted to misconduct concerning the litigation, I was referred to the letter of the respondent dated 4 April 2007 addressed to the applicant.[5] That correspondence relevantly said:
"… After due consideration of the objections to the proposal and the report of the Council's Resumption Agent on his hearing of the objections, Council is still of the opinion that the land described in the abovementioned Notice is required. At its meeting on 27 March 2007 Council resolved on to make an application to the Department of Natural Resources and Water for approval to the proposed resumption.
It is pointed out that copies of your objections and the report of the Council's Resumption Agent will be included amongst the matters placed before the Department of Natural Resources and Water for its consideration.
You will be notified of the outcome of Council's application as soon as possible." (emphasis added)
[5] Exhibit SJD-1" of the affidavit of Mr SJ Dermoudy, Exhibit 1.
According to Mr Allan, had the applicant been aware of the resolution of the respondent to seek approval of the resumption, the application dealt with on 29 March 2007 would have almost certainly not been proceeded with. According to Mr Allan, had the applicant been aware of the contents of the letter "… the sensible conclusion open to the applicant was to then restrain the Minister from considering the application."[6] I assume such proceedings would have been commenced in the Supreme Court. It follows that if the substantive application had not been filed or proceeded with the application dealt with on 12 April 2007 would not have occurred.
[6] Extract of proceedings of 12 April 2007 at p.8.6.
The resolution of the respondent on 27 March 2007 would not have prevented the commencement of the substantive application. It was filed on 21 March 2007. As to whether or not that application would have been abandoned by the applicant after receiving knowledge of the resolution involves an element of speculation. There is no objective evidence before the Court which really supports the submissions made by Mr Allan. According to Mr Hinson SC, senior counsel for the respondent, there are only bare assertions from the bar table about what might have occurred.
As it turned out the respondent's application to proceed with the resumption was delivered to the relevant authority on the day I was to hand down my decision on the substantive application.[7] It might have been preferable for the respondent to have waited until after the decision was handed down but, as Mr Hinson SC pointed out, there were no legal reasons preventing the respondent from proceeding in the way that it did.
[7] see Exhibit 2.
I also agree that it would have been preferable that the applicant knew about the resolution complained about prior to the proceedings on 29 March 2007. However, on balance I find that I am unable to agree with the submissions made by Mr Allan that the conduct of the respondent, in the context of the subject litigation, invited and/or protracted the litigation, including the second application. In my opinion there is no disentitling conduct on the part of the respondent or other "special circumstances" which would justify departure from the usual rule that costs should follow the event.
The final matter to be disposed of is whether any orders as to costs should be limited. As I understand the argument advanced on behalf of the applicant about this, it is contended that any orders as to costs should be limited to only the costs of and incidental to the hearing of the argument about jurisdiction.
On 29 March 2007, Mr Allan submitted to the effect that I should deal with the question about jurisdiction as a preliminary point (T2.1). Mr Hinson SC proposed that it might be more convenient to deal with both jurisdiction and the "merits" of the application but indicated that he was not overly concerned about the prospect of the hearing being split (T 2.2). It was my decision to deal with both issues at the one time.
The arguments concerning both jurisdiction and the merits of the application were dealt with before the luncheon adjournment and comprises of just over twenty-two pages of transcript. It appears to me that the arguments concerning jurisdiction occupied just less than half of the hearing time. I was and still am of the view that the application was dealt with in the most efficient way and that no fault concerning the conduct of the proceedings can be laid at the feet of the respondent.
In the circumstances I do not consider it appropriate to make orders limiting costs in the manner contended for on behalf of the applicant.
Orders
For the reasons set out above I order that:
(i)The applicant is to pay the respondent's costs of and incidental to the application filed 21 March 2007 such costs to be assessed on the standard basis.
(ii)The applicant is to pay the respondent's costs of and incidental to the application filed on 12 April 2007 such costs to be assessed on the standard basis.
RS JONES
MEMBER OF THE LAND COURT
0
1
0