Crees v Redland City Council [2022] QLC 9

LAND COURT OF QUEENSLAND CITATION: Crees v Redland City Council [2022] QLC 9 PARTIES: Kenneth Leslie Crees (appellant) v Redland City Council (respondent) FILE NO: LGR039-22 PROCEEDING: Application for costs DELIVERED ON: 16 August 2022 [ex tempore] DELIVERED AT: Brisbane HEARD ON: 16 August 2022 HEARD AT: Brisbane MEMBER: WA Isdale ORDER: The Appellant pay the Respondent’s costs of and incidental to the appeal on the standard basis as agreed or assessed. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where no evidence was filed in the matter – where the matter was withdrawn during its hearing – where the respondent sought costs on the standard basis – whether awarding costs would be in the interests of justice – where costs were ordered against the appellant Land Court Act 2000 Land Court Rules 2022 Local Government Regulations 2012 Northern Territory v Sangare (2019) 265 CLR 164 Oshlack v Richmond River Council (1998) 193 CLR 72 Western Downs Regional Council v Geldard (No 2) [2020] QLAC 2 -- 1 of 4 -- 2 APPEARANCES: B Paddison (agent), for the appellant DC Whitehouse (instructed by Redland City Council) for the respondent [1] The Court has before it an application in this matter, by the respondent - the Redland City Council, for an order in its favour, for costs against the appellant, Mr Crees - Kenneth Leslie Crees. Submissions have been provided from the bar table, by the counsel for the respondent and submissions have been made by Mr Paddison, the authorised agent for the appellant. The Court has been directed to the legal basis for considering an application for costs, which is to be found in section 27A, subsection (1), formerly numbered section 34, of the Land Court Act.1 [2] It is useful to remember that the case of Western Downs Regional Council v Geldard2 - which is Land Appeal Court decision 2 of 2020 - was provided to both parties by the Court a week ago and has been referred to today in the course of the appeal that has now been withdrawn. In that decision of the Land Appeal Court, the matter of costs has been dealt with. The applicable law is essentially the same as it was then. I will be referring to that case for such guidance as it may usefully provide to this Court. [3] Costs are a matter to be considered in each case, in all the circumstances of a case, and in no way represent any punitive action at all. Costs are about indemnifying a party for expenses that they may have been put to, to a reasonable level, and often reflect - while they don’t have to solely reflect, of course - the outcome. Costs following the event is the most common circumstance but, in every case, the question of costs must be individually considered and the discretion exercised individually, and for reasons that can be articulated. [4] Section 27A(1) of the Land Court Act 2000 provides that the Court may order costs as it considers appropriate, subject to provisions to the contrary in this or another Act. The Local Government Regulation 2012, by regulations 92 and 93, gives the Land Court the power to decide this appeal, which has now been resolved by it being withdrawn. The Regulation is silent about the costs of the appeal, therefore the 1 The proper citation is s 27A(1) of the Land Court Act 2000 as at 28 February 2022. The content of this provision is the same as that of s 34(1) in previous reprints. 2 [2020] QLAC 2 (‘Geldard (No 2)’). -- 2 of 4 -- 3 question of costs will be determined by the Land Court Act and Land Court Rules 2022.3 [5] There’s no doubt that the Court has power to award costs as it considers appropriate. In this case, it appears that there was no matter of principle involved in this appeal, but rather one of statutory interpretation. The fact that the appellant is funded by its rate payers will not be a consideration in the exercise of the Court’s discretion. I refer to paragraph 16 of the decision of Western Downs Regional Council v Geldard4 where that point is made and authority has been referred to by the Land Appeal Court in that case; namely Northern Territory v Sangare (2019) 265 CLR 164 at 174 and 175 at paragraph 28, citing Oshlack v Richmond River Council (1998) 193 CLR 72 at page 107. [6] So essentially, the respondent is in no particularly special position, simply because it’s funded by, as it were, rate payers. It’s a litigant which has been brought to court and has, in effect, in the outcome, been completely successful. The justice of the matter, bearing in mind the letter dated 15 August 2022 that’s been provided to the Court as Exhibit 6, requires an examination of the conduct and compliance with orders by both parties. [7] The Court notes that - as referred to in the last sentence of the first page of that letter of 15th of August 2022 the appeal was deficient as there was no evidence filed at that point in relation to the appeal. Indeed, the only evidence were the exhibits that were introduced today, from the bar table. The respondent did not have the benefit of seeing any material that had been, for instance, supported by affidavit or any statements of witnesses, in relation to this matter. It appears that the conduct of the respondent was normal and fully justified in obtaining legal representation to ensure that it was properly heard in this Court. [8] The letter referred to specifically raises the matter of costs: “Council will be seeking to recover its reasonable costs from your client.” 3 Land Court Rules 2022 r 34. 4 Geldard (No 2) (n 2) [16]. -- 3 of 4 -- 4 [9] So it appears, from exhibit 6 that as of yesterday - at least, yesterday afternoon, the appellant’s agent was put on notice that the Council would be seeking to recover reasonable costs. Nonetheless, the matter was persisted with and the hearing continued until late in the morning today, at which point the appeal has been withdrawn. So some court time, probably less than an hour, was expended in the matter. [10] In the letter, the respondent strongly encouraged the agent to discuss the letter with his client. The submission from the agent was that he endeavoured to do so but was unable to. However, it’s noted that the agent has unlimited authority from the appellant to represent him. In the circumstances of this case, justice is best served by costs following the event. The event, however, has not been the dismissal of the appeal, but it having been withdrawn. [11] The Court accepts that it was appropriate for the agent to withdraw the appeal, as it does not appear it would have had any reasonable prospects of success. However, it would have been prudent to have withdrawn the appeal before the hearing commenced this morning. The respondent has been put to the expense of being represented and has acted reasonably and properly. The Court must do justice to the parties before it, and must be even handed and do justice to both sides, not just to one. The order of the Court will be that the respondent, the Redland City Council, should have the benefit of a costs order for its costs of and incidental to this appeal on the standard basis as agreed or assessed. The order is made accordingly in those terms. Order The Appellant pay the Respondent’s costs of and incidental to the appeal on the standard basis as agreed or assessed. -- 4 of 4 --