Sykes v Minister for Mines and Energy
[2009] QLAC 2
•6 March 2009
LAND APPEAL COURT OF QUEENSLAND
CITATION:
Sykes v Minister for Mines and Energy & Anor [2009] QLAC 0002
PARTIES:
IAN GRANT SYKES
(appellant)
V
MINISTER FOR MINES AND ENERGY
(first respondent)
and
QUEENSLAND GAS COMPANY LIMITED(second respondent)
FILE NOS:
LAC2008/0043, LAC2008/0712 and LAC2008/0758
DIVISION:
Land Appeal Court of Queensland
PROCEEDING:
An application concerning costs
DELIVERED ON:
6 March 2009
DELIVERED AT:
Brisbane
THE COURT:
White J
Mr RP Scott, Member of the Land CourtMr RS Jones, Member of the Land Court
ORDERS:
The orders made by the Land Appeal Court on 12 February 2009 are set aside.(1)
Instead it be ordered that(2)
In appeals LAC2008/0043 and LAC2008/0758:1.
the appeal against the order of the Land Court that the appellant pay 50% of the second respondent’s costs of the hearing of the preliminary question is dismissed;(i)
the appeal against the order of the Land Court that the appellant pay the second respondent’s costs in the amount of $82,463 is dismissed.(ii)
The appellant is to pay the second respondent’s costs of and incidental to appeals LAC2008/0043 and LAC2008/0758:2.
such costs are to be assessed by the appropriate assessing officer of the Supreme Court of Queensland (being a person who is a “cost assessor” as that term is defined in Rule 679 of the Uniform Civil Procedure Rules) on the standard basis using the Supreme Court scale of costs current at the date of this order;(a)
this order is made an order of the Supreme Court of Queensland and may be enforced in the Supreme Court.(b)
In appeals LAC2008/0043 and LAC2008/0712;3.
(i)the appeal against the order of the Land Court that the appellant pay 40% of the first respondent’s costs of the hearing of the preliminary question is allowed.
(ii)instead order that there be no order as to the costs of the first respondent.
CATCHWORDS:
COST ORDERS – FORM OF COSTS ORDERS
APPEARANCES:
The matter was dealt with on the papers
On 12 February 2009 this Court handed down its decision disposing of a number of appeals against costs orders made by the Land Court against the appellant in favour of the first and second respondents. In disposing of the appeals the Court made the following orders:
“1.The appeal against the order of the Land Court that the appellant pay 50% of the second respondent’s costs of the hearing of the preliminary question is dismissed.
2.The appeal against the order of the Land Court that the appellant pay the second respondent’s costs in the amount of $82,463 is dismissed.
3.The appeal against the order of the Land Court that the appellant pay 40% of the first respondent’s costs of the hearing of the preliminary question is allowed.
4.Instead order that there be no order as to the costs of the first respondent.
5.The appellant is to pay the second respondent’s costs of and incidental to the appeal on the standard basis.”
Order 5 is the only order now in issue.
On 12 February 2009 the second respondent, Queensland Gas Company Limited, was represented by its solicitor, Mr M Kimmins. The first respondent, the Minister for Mines and Energy, was represented by Ms T Havas, a solicitor employed by Crown Law. There was no appearance for or on behalf of the appellant, Mr Sykes.
After having had the opportunity to peruse the orders made by this Court, Mr Kimmins submitted that cost orders in the following terms should be made in lieu of order 5:
“1.The appellant pay the second respondent’s costs of and incidental to the appeal.
2.The costs referred to in paragraph 1 are to be assessed by the appropriate assessing officer of the Supreme Court of Queensland (being a person who is a ‘costs assessor’ as that term is defined in Rule 679 of the Uniform Civil Procedure Rules (on the standard basis using the Supreme Court scale of costs current at the date of this order.
3.This order is made an order of the Supreme Court of Queensland and may be enforced in the Supreme Court.”
In circumstances where there was no appearance on behalf of the appellant, the Court declined to make the orders sought by Mr Kimmins until the appellant had had the opportunity to consider his position and respond to the orders proposed.
On 13 February 2009 the Deputy Registrar of the Land Appeal Court wrote to the appellant attaching a copy of the decision of this Court delivered on 12 February 2009. This correspondence also stated that the Land Appeal Court was inclined to make costs orders in the form proposed by Mr Kimmins and set out in full the orders intended to be made by the Court. The appellant was given 14 days from the date of this correspondence to put in writing any submissions he might have in response to the orders proposed.
On 25 February 2009 the Registry of the Land Appeal Court received correspondence from the appellant which relevantly said in respect of the costs orders proposed to be made:
“I request (these) words be added
‘After the end of any appeal or appeals which may be instigated by Ian Grant Sykes or Queensland Gas Company Limited in respect of LAC2008/0043 or LAC2008/0758 or both of these.’
This would operate as a stay pending the final outcomes of what stemmed from PGC00114/2007 as to the enforcement of costs.”
There was no other opposition or caveat to the proposed costs orders raised by the appellant.
We do not consider it appropriate to add the words proposed by the appellant to the costs orders intended to be made for several reasons. First, it would not be appropriate to make the costs orders dependent upon an event or events which may or may not occur. Second, in the event that the decision of this Court concerning the question of costs was overturned on appeal, it would usually be the case that the costs orders made by this Court would be set aside. Third, orders as to costs are not designed to punish the unsuccessful party but to indemnify the successful party against expense to which he or she has been put in conducting the legal proceedings. We can see no good reason for deferring the second respondent’s benefit of orders as to costs.
The form of the orders proposed by Mr Kimmins are consistent with previous orders made by this Court in litigation involving the parties to this appeal[1] and with s.34 of the Land Court Act 2000. We can see no good reason, and none has been advanced by the appellant, why the discretion to make the cost order an order of the Supreme Court[2] should not be exercised nor why it would not be appropriate to order that the costs be decided by an appropriate assessing officer of the Supreme Court.[3]
[1]Orders made by the Land Appeal Court on 11 November 2008 in appeals LAC/0859 and LAC0024.
[2]Land Court Act 2000, s.34(3).
[3]S.34(5).
For the reasons given the appellant’s application to further amend the costs orders is refused. Accordingly, the Court orders:
(1) The orders made by the Land Appeal Court on 12 February 2009 are set aside.
(2) Instead it be ordered that:
1. In appeals LAC2008/0043 and LAC2008/0758;
(i) The appeal against the order of the Land Court that the appellant pay 50% of the second respondent’s costs of the hearing of the preliminary question is dismissed.
(ii) The appeal against the order of the Land Court that the appellant pay the second respondent’s costs in the amount of $82,463 is dismissed.
2. The appellant is to pay the second respondent’s costs of and incidental to appeals LAC2008/0043 and LAC2008/0758.
(a) such costs are to be assessed by the appropriate assessing officer of the Supreme Court of Queensland (being a person who is a “cost assessor” as that term is defined in Rule 679 of the Uniform Civil Procedure Rules) on the standard basis using the Supreme Court scale of costs current at the date of this order.
(b) This order is made an order of the Supreme Court of Queensland and may be enforced in the Supreme Court.
3. In appeals LAC2008/0043 and LAC2008/0712;
(i) The appeal against the order of the Land Court that the appellant pay 40% of the first respondent’s costs of the hearing of the preliminary question is allowed.
(ii) Instead order that there be no order as to the costs of the first respondent.
WHITE J
JUSTICE OF THE SUPREME COURT
RP SCOTT
MEMBER OF THE LAND COURT
RS JONES
MEMBER OF THE LAND COURT
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