Stanbroke Pastoral Company Pty Ltd v Chief Executive, Department of Transport
[1999] QLC 76
•23 July 1999
LAND COURT,
BRISBANE
23 July 1999
Re: Determination of compensation payable consequent upon the resumption by the Chief Executive, Department of Transport, for miscellaneous transport infrastructure corridor purposes under the provisions of the Acquisition of Land Act 1967, the Transport Infrastructure Act 1994 and the Transport Planning and Coordination Act 1994. (A98-26).
Stanbroke Pastoral Company Pty Ltd
v.
Chief Executive, Department of Transport
DECISION ON APPLICATION FOR COSTS
This is an application for costs by the respondent under section 24(3) of the Acquisition of Land Act 1967, (“the Act”), following the granting by the Court of leave for the claimant to amend the claim for compensation filed in the office of the Registrar of the Land Court.
Background: the matter be set down for hearing for five days in May 1999. At that time the solicitor for the claimant company indicated that there would probably be two witnesses for the claimant, a valuer and a representative of the company. On the other hand, even at that early stage, counsel for the respondent indicated there would be at least four witnesses called for the respondent, including a valuer and a veterinarian. At that time, with the agreement of both parties, the Court made an order for the exchange of all witnesses’ statements not less than 21 days before the date of hearing.
By Proclamation dated 31 January 1997, the respondent Chief Executive resumed
three easements totalling 1,272 hectares through three properties owned by the claimant
company in far western Queensland known as “Tanbar”, “Malagargah” and “Mt Howitt”,
collectively known as “Tanbar”. On that day the respondent also resumed easements through
many other properties for the purposes of a transport infrastructure corridor from Ballera to
Mt Isa. On 24 June 1998, a claim for compensation in the sum of $145,538 was referred to
the Land Court by the claimant company and filed in the Land Court registry on that date.
| On 15 December 1998 the parties were advised that the matter would be set down for The principal dispute between the parties arose when on 18 June 1998, the claimant | hearing in Brisbane on Monday, 10 May 1999. on 1 July 1999. There is no longer a Taxing Officer. The order sought would now seem to be that the amount of such costs be assessed by the Registrar of the Supreme Court. However, that would not seem to affect the reasoning in this matter and I will proceed on the terminology as the case was argued. |
The Respondent’s Submissions
Mr Gallagher submitted that the respondent had treated the claim for weight loss of cattle seriously and had incurred hundreds of thousands of dollars in investigating that claim. Then at a very late stage, the claim for weight loss was abandoned. The claim, he said, was a novel one, there being only one reported case dealing with the impact of construction activities on weight loss of animals, James v. Commissioner for Railways (1976) 3 QLCR 396. In that case a number of specialist experts were called. Having ascertained the methodology adopted in that case, the respondent reacted by instructing a number of well- qualified experts. As this case was one of a number, the respondent considered that it was appropriate to deal with the matter fully in the first case and obtain as much benefit from the expert witnesses as possible. It was not a matter where one or two experts were capable of dealing with the various aspects of the claim. The respondent was concerned that an undesirable precedent could be created which would affect not only other claims still outstanding in respect of this project, but in respect of other similar projects being constructed throughout the State. After the matter had been allocated a hearing date following the callover in December 1998, the respondent commenced to incur costs by having its experts investigate the matter.
Mr Gallagher argued that in making the order sought by the respondent this Court would not be ordering that the extent of those costs that had been incurred would necessarily follow, as those were matters for the Taxing Officer to consider.
The Claimant’s Submissions
Mr R Needham, counsel for the claimant, submitted that no such order should be made. He referred to the well established principle that claims for compensation following the compulsory acquisition of land differ from other cases. The Act gives the landowner a claim for compensation which it could hardly be expected to renounce. (Minister for the Environment v. Florence (1980-81) LGRA 127). The claimant was forced at an early stage to consider what loss was occasioned by the resumption.
Mr Needham’s argument proceeded as follows: The claim for weight loss of the cattle was simply a claim for loss of business profits, a common form of claim where the resumption causes interruption to business during construction. The claimant’s business is fattening and selling fat cattle. There was disturbance of that business on the land across which the resumption occurred. If the claimant can prove that there was a loss and that the loss was the natural and reasonable consequence of the resumption and that it was not too remote, there would be a compensable loss. The claim was based on the advice of the claimant’s valuer, whose valuation report had been given to the respondent on 18 June 1998. However, the actual loss in monetary terms did not crystallise until much later. The final conclusion of the claimant’s experts was not available until after the date ordered for exchange. It became available shortly after that date and the claimant advised that it was going to withdraw that part of its claim. Although it feels it has suffered a loss, the claimant had concluded that it could not be proved that the weight loss was caused by the construction activities. Once that part of the claim was out of the way, the balance of the claim was able to be settled.
Mr Needham further submitted that the costs have not been thrown away: The respondent has achieved its desired result. It has avoided an undesirable precent. The claimant has not been able to prove the claim and has withdrawn it. That was likely to result in settlements of the other claims as the reports by the respondent’s experts would also apply to those other properties. It was only because this was a test case that the respondent could justify expending over $240,000 for the preparation of experts’ reports. If that expenditure had been incurred in respect of a single claim for $105,261 then it would be utterly unreasonable. However, this was a test case for the whole of the resumed easements. Because it was a test case, it was unfair to expect the first litigant to bear the costs of the entire investigation by the respondent.
The Relevant Legislation:
The general power of this Court to award costs derives from section 41(9) of the Land Act 1962 (as preserved by section 521 of the Land Act 1994).
“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 …
The Court may, upon making an order for costs pursuant to this subsection, order that the costs be ascertained and fixed by the taxing officer of the Supreme Court … according to the scale of costs prescribed by law for the time being in respect of proceedings in the Supreme Court and the taxing officer is authorized and required to ascertain and fix such costs in accordance with that order. ”
In this case the respondent relies upon the particular power contained in section 24(3) of the Acquisition of Land Act 1967:
“The claimant shall not amend the claim filed by the claimant in the office of the Registrar of the Land Court except upon leave granted by that Court (which leave the Court may grant upon such terms as it deems just, including terms with respect to the payment of costs). ”
| In this case the provisions of section 27 of the Act do not apply as there has been no following the granting of leave to amend the claim in the case of Chevron Queensland Limited v. The Crown, an unreported judgment of the Land Court dated 3 May 1991. That case concerned the resumption for environmental park purposes of about 308 hectares of the dry lands on Woogoompah Island, situated in the Broadwater region of the Gold Coast. In that case the claim for compensation filed in Court was for $40 million. However, leave of the Court was sought and obtained on the day of hearing to amend the claim to $1.5 million. After hearing the matter, the Court determined compensation at $900,000. It ordered that the claimant pay the respondent’s costs thrown away as a result of the amendment of the claim granted pursuant to the provisions of section 24(3) of the Acquisition of Land Act and ordered that the amount of such costs be ascertained and fixed by the costs taxing officer of the Supreme Court at Brisbane in accordance with the provisions of section 41(9) of the Land Act 1962. The Court made no order as to costs of and incidental to the hearing of the amended claim. hearing and determination of the matter. |
| Mr Gallagher also referred to the decision of Byrne J of the Supreme Court in Yalgan Investments Pty Ltd v. Council of the Shire of Albert, an unreported decision delivered on 15 April 1999. The matter concerned the review of the decisions of the Taxing Officer in respect of items in a bill of costs taxed by order of the Land Appeal Court. The Land Court had held the parties should bear their own costs. Yalgan appealed to the Land Appeal Court against the Land Court’s decision as to costs and was partially successful, with the Land Appeal Court ordering that the respondent “pay so much of the (applicant’s) costs of and incidental to the hearing … of the claim for compensation as are the costs of and incidental to a hearing for three days.” The Taxing Officer took the view that to be recoverable under the order, the expense must be closely connected with a day of hearing. He allowed costs which extended to such items as instructions to counsel, copying documents for the brief, fees to counsel for appearing at the hearing, ordinary witnesses’ expenses (including costs of issue and service of subpoenas), and a few other expenses characterised as “incidental” to the hearing. However, the Taxing Officer disallowed items such as outlays to obtain experts’ reports, even where the reports were put before the Land Court at the hearing as substantially the evidence in chief of the expert witnesses. |
In allowing the appeal, Byrne J made the following finding:
“Expense incurred in compiling a report tendered as the evidence in chief of an expert witness is, in my opinion, part of the costs ‘of’ the hearing within the meaning of the Land Appeal Court’s order; but if not a cost ‘of’ the hearing, the outlay must at least be ‘incidental’ to it. ”
In explaining that “hear and determine” in section 26, simply confers jurisdiction on the Land Court to try cases and decide their outcome, his Honour went on to say that in a corresponding way, section 27 confers a power to grant costs in respect of the exercise by the Land Court of the jurisdiction invested by section 26. His Honour concluded that Section 27 therefore permits costs awards in respect of interlocutory, as well as final, proceedings and the section authorises costs orders in relation to fees and disbursements incurred from the time of institution of proceedings in the Court claiming compensation under the Act.
His Honour reasoned that unless expenses incurred after the institution of proceedings in the Land Court before the first day of hearing can be recovered as part of the assessment of compensation payable in consequence of the acquisition, the interpretation favoured by the Taxing Officer would be unreasonable. It would mean that a claimant suffering loss through the acquisition of property would be driven to incur further, noncompensable loss in pursuing the claim for compensation through the Court.
His Honour’s judgment also gives an insight into the type of matters that should be considered by the Taxing Officer in deciding whether a case merits the engagement of both senior and junior counsel.
In my opinion, both Chevron Queensland and Yalgan can be distinguished from the present case. In Chevron Queensland, despite the amendment of the claim from $40 million to $1.5 million, the matter proceeded to hearing where substantial evidence was adduced by both sides. The judgment of the Land Court gives no indication as to what was involved in the respondent’s costs that were thrown away as a result of the amendment of the claim. However, there can be little doubt that those costs did not exceed the amount of the original claim.
Similarly, in Yalgan the case proceeded to hearing and the order as to costs that was appealed was made by the Land Court after six days of hearing. Although the decision of Byrne J establishes that the expenditure incurred in the preparation of expert witnesses’ statements prior to the hearing is recoverable as costs of or incidental to the hearing and determination, those costs were awarded under the provisions of section 27 of the Act. In the present case, the order sought is for an award of costs under section 24(3).
There is no doubt that the respondent in this case has incurred considerable expense in preparing for the trial of this matter. That is shown in the affidavit sworn by Ms Cosgrove of the Crown Solicitor’s Office, which details the reasons for the engagement of eight experts and the many conferences, travel, accommodation and other expenses involved. That affidavit shows clearly that the engagement of so many expert witnesses at such expense was incurred because this claim was seen as a test case. Every effort was made to defeat the claim for loss of weight of the cattle and to avoid what the respondent would regard as an undesirable precedent.
While there was no attempt to quantify the expenditure by the respondent, it was
estimated that preparation of experts’ statements alone would exceed $240,000. attributed to this case if it was to be heard alone. Mr Gallagher submits that that is a matter for the Taxing Officer. Mr Needham argues that it is not.
The Role of the Taxing Officer
Mr Needham submitted that the matters which have been raised in this case go beyond the power and discretion of the Taxing Officer. While the Taxing Officer would consider whether it was necessary to have both senior and junior counsel for a claim of only $145,000, the Taxing Officer would not consider whether or not this matter was a test case before deciding what experts’ reports were necessary. Mr Needham submitted that in the circumstances the Court should make no order as to costs.
On the other hand, Mr Gallagher made the following submissions: The Taxing Officer would be entitled to determine the reasonableness of the claim in terms of the importance of experts, the reasonableness of engaging senior counsel, and other matters. The Taxing Officer has a complete and unfettered discretion as to the total quantum of the claim. The decision of Byrne J in the Yalgan case indicates the type of matters which the Taxing Officer should consider. However, until there was a bill made in taxable form, those questions should not properly be decided. If the respondent gets an order for costs, it must deliver a bill in taxable form to the claimant, who will have the right to have that taxed and that is where the debate arises as to those items.
Consideration and Conclusion
The claimant has raised as an item of disturbance what has been described as novel, if
not unique. There is only one reported case (James case), dealing with the subject of construction activities causing weight loss of livestock. However, that case is of no assistance in resolving the present matter. Since the claimant raised that head of claim at an early stage on the advice of its valuer, the respondent had a duty to investigate to see if that head of claim could be sustained. The claimant submits that it amended its claim as soon as it received expert advice that the claim for weight loss could not be proven.
Mr Gallagher argues that this is simply a claim abandoned too late. However, it is difficult to see what alternative the claimant had after investigations by its experts had revealed that the claim could simply not be proven. To have allowed the matter to proceed to trial for what was estimated to be a five day hearing would have resulted in even further costs being incurred by the respondent. In my opinion, the original claim was not unduly excessive or frivolous. It was based on what seemed to be reasonable grounds at the time. Once the claimant had abandoned that part of its claim, the balance of the claim was settled relatively easily.
The respondent admits that it has incurred expenditure in excess of $240,000 in the preparation of expert witnesses’ reports. The draft costs order sought by the respondent lists eight experts. In addition, there would be additional costs including the fees of senior and junior counsel. This expenditure is in respect of part of a claim which was for $105,261. Such an expenditure of public money could not be justified if it was to meet this one claim alone. But it was not. The evidence clearly indicates that this was a test case not only in respect of the easement resumptions from Ballera to Mt Isa, but for other future resumptions. The investigations by the respondent went much further than simply to rebut the present claim and were of wider general interest.
Therefore, in my opinion, the respondent’s costs were not thrown away by the late amendment of the claim. The respondent has succeeded in avoiding an undesirable precedent in respect of the weight loss aspect of the present claim. If the matter is again raised by any landowner affected by the present scheme or any future scheme, the respondent is well equipped to meet such a claim.
I have come to the conclusion that it is not necessary to attempt to apportion any part of the considerable expenditure incurred by the respondent which would be attributable to this case alone and make an order for costs against the claimant. Therefore, the application of the respondent is refused and in the exercise of my discretion, I make no order as to costs.
JJ Trickett
President of the Land Court
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