Starr v Appleton

[2009] QLC 102

LAND COURT OF QUEENSLAND

CITATION:	Starr v Appleton  [2009] QLC 0102
PARTIES:	Geoffrey Dennis Starr (applicant)
v.
Victor John Edward and Janet Anne Appleton (respondents)
FILE NO:	MLC00252/2007, MLC00253/2007, MCC00254/2007, MLC00028/2008 and MLC00029/2008
DIVISION:	General Division
PROCEEDING:	Application for rehearing of compensation application
DELIVERED ON:	8 July 2009
DELIVERED AT:	Brisbane
HEARD AT:	Emerald
MEMBER:	Mr SJ Keim  SC
ORDER:	The determination of the issue of costs adjourned by paragraph 5 of the order dated 1 May 2009 be determined on the basis that there be no order as to costs.
CATCHWORDS:	Land Court Act 2000, s.34 – application for order for costs – costs of unsuccessful application for rehearing pursuant to s.12 Land Court Act 2000 – factors to be considered in deciding whether order for costs should be made
APPEARANCES:	The applicant appeared in person. Mr. S Lynch for the respondents.

SOLICITORS: The applicant acted for himself in the principal proceeding.  Submissions on costs were made by Grant and Simpson.
The respondents: Wonderley and Hall, Solicitors.

The Issue

1. On 1 May 2009, the Court refused the application for a rehearing of the determination of compensation made by Mr. Scott dated 17 June 2008.  The Court made directions for submissions on the question of costs.  Those submissions have since been received. 

Preliminary Matter: Member's Appointment has Expired

1. My appointment as a member of the Land Court was pursuant to s.17 Land Court Act 2000 ("the Act"). That is, I was appointed a deputy chairperson of the Land Tribunal established pursuant to the Aboriginal Land Act 1991.[1]  My appointment as a Member of the Land Tribunal and as a member of the Land Court expired on 9 May 2009.[2]

   [1]Subsection 17(1) of the Act provides that the Governor-in-Council must appoint a deputy chairperson of a Land Tribunal a member of the Land Court.

   [2]It was only necessary for the membership of the Land Tribunal to expire. This would have had the effect that my membership of this Court would have expired by operation of law, in any event. Subsection 17(3) of the Act provides that a member of a Land Tribunal who is appointed to the Land Court ceases to be a member of the Court if the person ceases to be a member of a land Tribunal.

2. In the absence of a provision otherwise, I would not have authority to deal with this costs application. However, subs.16(7) of the Act provides as follows:

   "Despite subsections (2) and (3) [which deal with the terms of appointment to the Land Court], a member who, before the end of the member's term of appointment, starts the hearing of a proceeding may remain a member until the proceeding ends."

3. At the latest, I commenced the hearing of the applicant’s application for a rehearing on 3 March 2009.[3] I am of the opinion that the outstanding issue of costs is part of that application and that the proceeding which I have commenced to hear is continuing and has not ended.

   [3]I had conducted a directions hearing in the matter before that date.

1. "Proceeding" is not defined in the Act. However, the Acts Interpretation Act 1954 ("the Interpretation Act") provides a definition of "proceeding" as meaning "a legal or other action or proceeding".[4]

   [4]See s.36 Interpretation Act. Note, however, s.4 Interpretation Act which provides: "The application of this Act may be displaced, wholly or partly, by a contrary intention appearing in any Act."

2. I am of the view that there is nothing in the context of subs.16(7) to suggest that the term should be given a different meaning. I am of the view that the words "legal or other action or proceeding" are quite broad in their effect; are consistent with the ordinary meaning of "proceeding"; and consistent with the term used in its context in subs.16(7) of the Act. It would be inconsistent with the definition to construe "starts the hearing of a proceeding" as referring to some element of the application for a rehearing which excluded the determination of the question of costs.

3. Accordingly, I am of the opinion that I remain a member of the Land Court at least until the publication of these reasons and the making of the decision set out at the commencement of these reasons.

Costs: the Applicable Provision  

1. The respondents, who were successful in resisting the application, seek an award of costs.  The applicant seeks an order that there be no order as to costs.

2. Section 34 of the Act provides, in respect of costs, as follows:

   "34 Costs

   (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.

   (2) If the court does not make an order under subsection (1), each party to the proceeding must bear the party's own costs for the proceeding.
   …
   (5) The court may, if it considers it appropriate, order the costs to be decided by the appropriate assessing officer of the Supreme Court.

   (6) If the court makes an order under subsection (5), the assessing officer may decide the appropriate scale to be used in assessing the costs."

3. The power to grant leave to have a matter the subject of a decision of the Court reheard is provided by s.12 of the Act. Section 12 provides no additional guidance with regard to the question of costs.

4. The determination of compensation by Mr. Scott was carried out pursuant to the provisions of the Mineral Resources Act 1989 ("the MRA").[5] The MRA, in subs.281(7) provides for a discretion to order costs on hearing to determine compensation. Sub-section 281(7) provides:

   (7)   "The Land Court shall give written notice of its determination to all parties and may make such order as to costs between the parties to the determination as it thinks fit."

   [5] The jurisdiction arises under s.281 MRA.

5. Mr. Scott made no order as to costs as part of his decision dated 17 June 2008.

6. There are a number of other provisions in the MRA which provide for orders for costs in particular situations. However, no such provision deals with the application for a rehearing pursuant to s.12 of the Act. Accordingly, in the absence of "any other provisions … to the contrary", the provisions of subss.34(1) and (2) of the Act, provide the basis for determining the present application for costs by the respondent.

Principles

1. In Townsville City Council v Moyses and Ors (1979) 6 QLCR 271, the Land Appeal Court was considering s.27 Acquisition of Land Act 1967 where the discretion to award costs is expressed in general terms but subject to guidance by reference to which party's "final" position in the litigation was closer to the eventual result.  The Land Appeal Court stated:[6]

   "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."  

   [6]          At page 273.

2. Later, the Court stated:[7]

   "In general, of course, a party who is wholly successful in litigation can expect an order for costs in his favour, but we think that the learned Member could consider that in the present case there were sufficient reasons for departing from the general rule".

   [7]          Page 278.

3. The Land Appeal Court conducted an extensive analysis of authorities and provided an equally extensive statement of principles in Yalgan Investments Pty Ltd v Shire of Albert (1998) 17 QLCR 401. Of note is the following passage at 407:

   "The discretion to award costs may not be exercised in an arbitrary manner but must be exercised on principled grounds or judicially, that is, for reasons that can be considered and justified by reference to relevant considerations. [Citations omitted.)

4. In a more recent case of Sykes v. Minister for Mines and Energy [2009] QLAC 0001, the Land Appeal Court was hearing appeals to which s.50 Land and Resources Tribunal Act 1999 ("LRTA") was held to be the provision governing the issue of costs. Section 50 LRTA provides, in the first instance, that each party is to bear its own costs. However, it also provides that reasonable costs may be awarded if, "in the special circumstances of the proceeding", the tribunal considers that an award of costs is appropriate.

5. The Land Appeal Court made the following comments:[8]

   "It needs to be repeated that costs orders are made not to punish the unsuccessful party but to indemnify the successful party against the expense to which he or she has been put in conducting the legal proceedings. When a 'non-costs' regime generally applies, as here, an award of costs will be made when the conduct of one party goes beyond what is reasonable for disposing of the dispute so that the opposing party will not [be] exposed to unwarranted expense". (Citations omitted.)

   [8] Paragraph [36].

6. In BHP Queensland Coal Investments v Cherwell Creek Coal Pty. Ltd. [2009] QLAC 0005, the Land Appeal Court was considering an appeal against a refusal to order security for costs pursuant to rule 671(a) Uniform Civil Procedure Costs 1999 ("the UCPR"). The Land Appeal Court discussed the discretion pursuant to s.34 of the Act in the following terms:[9]

   "Accordingly, the Land Court is left with a discretion unconfined except insofar as "the subject matter and the scope and purpose"[10] of the legislation does so.  It must be exercised judicially and in accordance with established principles and factors relevant to the litigation.[11]  As is well recognised, a significant factor influencing the exercise of the discretion to award costs is the outcome of the litigation." (Citations in the original.)

   [9] Paragraph [15].

   [10]Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 per Dixon J.

   [11]         LGM Enterprises Pty Ltd v Brisbane City Council [2008] QLAC 0231 at [9].

7. The reasons of the Land Appeal Court do appear to leave as one of the factors for consideration the nature of the parties to the litigation.  At paragraph 21, the Land Appeal Court observed that the fact that both parties were "significant commercial interests who retained large firms of solicitors" ruled out considerations that might apply in other cases.  It said:

   "This litigation is between significant commercial interests who have retained large firms of specialist solicitors who in turn have briefed leading counsel.  It is highly unlikely that the considerations which are present when a self-represented litigant (or modestly represented litigant) appears against an agency of government in the Land Court and which guide the exercise of the discretion will be present here."[12] (Citation and comments in the original.)

   [12]Those considerations were mentioned by the Land Appeal Court in Bowden v The Valuer-General (1980) 7 QLCR 138 at 144–148 when it spoke of "the ease of access" to the Land Court particularly in cases between "the citizen" and a "government instrumentality".

8. It follows from the authorities cited that a number of principles apply to the discretion created by s.34 of the Act. They include the following:

   (a)Costs are in the discretion of the Court.

   (b)The discretion must be exercised judicially.  That is, it must not be exercised by reference to matters which are irrelevant or in an arbitrary manner.

   (c)Success in the litigation and the degree of success of one party or another is a consideration to which considerable weight must be given.

   (d)The nature of the parties to the litigation and the nature of the representation utilised are relevant factors.

   (e)The reasonableness or otherwise of the conduct of parties to the litigation is a relevant factor.

   (f)An order that a party pay the costs of another party is not for the purposes of punishment.  Rather, it is intended to indemnify the beneficiary of the order for the expenses incurred in the litigation.

Relevant Factors

1. The following factors are considered by me to be of relevance in this case.

2. The respondents have been wholly successful in their opposition to the application for leave for a rehearing.  That is a factor that weighs in favour of a costs order to benefit the respondents.

3. The applicant and the respondents are natural persons.  In neither case is there any suggestion that the means of the party are other than modest.  This factor is, in my view, evenly balanced between making an order for costs in favour of the respondents and making no order for costs.  There is no government party.

4. The litigation has been conducted modestly on both sides.  The applicant was unrepresented despite urgings from the Court at a directions hearing that the importance of the matter militated in favour of his obtaining proper advice.  The respondents eschewed legal representation until close to the hearing date at which they were well and efficiently represented by counsel.  I am of the view that these circumstances make an order for costs in favour of the successful party less essential than circumstances where one or both parties had martialled much greater legal resources.

5. The litigation was also conducted relatively efficiently in the circumstances.  Although the applicant produced lengthy written material and his own evidence in chief and re-examination were made longer by the lack of legal knowledge and skill possessed by both the applicant (and his wife who assisted), any delays so caused were moderate and probably failed to incur marked additional costs for the respondents.  The applicant chose not to cross-examine the respondent's main witnesses which decision saved time and resources.  These factors, on balance, militate against an order for costs.

6. The factor of most difficulty is the nature of the application and the view, I arrived at, that the application, when all of the circumstances were taken into account, was ill-considered.[13]  However, it seems clear that Mr. Starr's perceptions of the hearing were strongly affected by the fact that the matter went to a full hearing in circumstances where neither he nor a solicitor to whom he had spoken (or the respondents) had expected anything more than a mention and some directions.[14]   

   [13]This can be seen from my conclusions at paragraphs 64-72 of my reasons for the decision.

   [14]         See my findings at paragraph 12 of the reasons.

7. It seems to me that, having received a determination from Mr. Scott that he regarded as unfavourable, Mr. Starr has focussed on what he remembered as negatives and has forgotten the careful consideration and safeguards that emanated from the member who made the determination.  One may be critical of that conduct on the part of Mr. Starr.  It is, however, conduct that is seen frequently in unrepresented litigants who care about their cases.  Mr. Starr, whom I observed closely both when he gave evidence and made submissions, acted in good faith.  He was, however, misguided in his appreciation of the facts and circumstances of the case before Mr. Scott.   

8. Against the background of the other factors which I have discussed, I have concluded that I should exercise the discretion to make no order as to costs.  To do otherwise would increase perceptions among unrepresented litigants like Mr. Starr that the Courts are inaccessible to them and that there is no justice available to them. 

9. Such perceptions would be detrimental to the ability of the public to access justice.  It would also be detrimental to the standing of this Court.

10. I so order. 

SJ KEIM SC
MEMBER OF THE LAND COURT