State of Queensland v Pajares
[2004] QLAC 95
•28 October 2004
LAND APPEAL COURT OF QUEENSLAND
CITATION: State of Queensland v Pajares [2004] QLAC 0095 PARTIES: State of Queensland
(appellant)v. Luis James Pajares
(respondent)FILE NOS: LAC2003/0472
LAC2003/0473
LAC2003/0473
LAC2003/0474DIVISION: Land Appeal Court of Queensland PROCEEDING: Application for Costs DELIVERED ON: 28 October 2004 DELIVERED AT: Brisbane HEARD BY: Written Submissions MEMBERS: Jones J
Mr RE Wenck
Mr RP ScottORDER: The Court makes no order for costs on appeal CATCHWORDS: Costs - Limited success but failure in the majority of challenges - Impossible to distinguish costs associated with success/failure - Numerical basis not appropriate - No order as to costs
Costs - Order by Land Court redundant - s.27 Acquisition of Land Act 1967
By decision dated 20 July 2004, this Court determined four appeals and invited submissions on the question of costs of the appeals. Submissions have been received from the State of Queensland dated 10 August 2004 and from the claimant two submissions dated 10 August 2004 and a reply dated 9 September 2004.
By virtue of ss 72 and 34 of the Land Court Act 2000 the Court has power, subject to statutory provisions to the contrary, to award costs “as it considers appropriate”. The constraints of s 27 of the Acquisition of Land Act 1967 do not apply to costs on appeal (s 27(3)). Consequently, the questions of costs of appeal fall to be determined by the application of ordinary principles affecting a discretion of this kind: Donald Campbell and Co Ltd v Pollak (1927) AC 732.
Of the four appeals litigated the substantial issues were litigated in appeals LAC 2003/0472 and LAC 2003/0474. Each of these appeals challenged the Land Court’s determination of the quantum of compensation on various and diverse grounds.
Before his appeal was heard, the claimant abandoned six of his pleaded grounds of appeal and argued seven of which he was only successful in one (ground 4).
The State argued five major grounds of appeal, grounds 2, 4, 5, 6, 7 and 8 being interlinked. Grounds 2 and 3 contained a number of sub-classifications. The State was successful on two points but failed on most of its arguments.
In the end result each of the parties failed in the majority of the respective challenges they made to the findings and the orders made below. As these appeals were heard together it would be impossible to determine costs which would be attributable to the success on particular grounds of appeal and to distinguish between costs incurred in successfully opposing other grounds. Nor is it helpful to simply take a numerical count of those grounds of appeal which were successful against those which were unsuccessful. The relative importance of the points litigated varied significantly.
The State was successful arguing the application of the Pointe Gourde principle (part of ground 1) and in arguing for a more significant discount to be applied to the land value to take account of the risks associated with obtaining cane assignments on part of the subject land and the costs associated with the development of arable land. In respect of this latter point the decision of this Court was not based entirely on submissions put forward by the State, but took into account other considerations not contended for.
The two areas in which the State was successful had the effect of reducing the amount of compensation payable to the claimant by $277,000 – from $3,696,000 to $3,419,000. This reduction, though small in relative terms, resulted in the award being closer to, but remaining significantly in excess of the State’s offer of compensation. As a consequence of s 27 of the Land Acquisition Act, the court order made in favour of the claimant by the Land Court cannot stand, and the claimant’s appeal against that order (2003/0471) was dismissed. Any costs associated with this appeal are quite minor and do not call for separate consideration.
On Appeal 2003/0473 concerning the Land Court’s orders in respect of Interim Conservation Orders, the claimant had mixed success. The appeal against the refusal to grant an extension of time failed but the appeal for the granting of interest on the ICO compensation was successful. The amount of interest was not large and the prosecution of this appeal did not involve significant costs.
The State relies upon statement of principle in Nicholson v Papasavas Phillips Co (1988-9) 166 CLR 407-8) that as costs ordinarily follow the event, it is incumbent on the unsuccessful party to satisfy the Court that there are good reasons why that party should not pay the costs of the appeal. The State contends that, though its success was limited, that fact should not deny it the benefit of the rule that costs follow the event.
The nature of the appeals and the scope of the issues argued on appeal, need to be considered as well as the limited success claimed by the State. Looking at all matters broadly there has been a mixture of success and failure by each of the parties in the prosecution of these several appeals. To the extent that the State was successful in reducing the compensation payable the relatively minor success has had significant favourable consequences for that party. Taking all these matters into consideration the appropriate order in respect of the appeals would be for the parties to pay their own costs.
The Court will, therefore, not make any award in respect of the costs in any of the appeals.
JUSTICE JONES
JUSTICE OF THE SUPREME COURT
RE WENCK
MEMBER OF THE LAND COURT
RP SCOTT
MEMBER OF THE LAND COURT
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