BWP Management Limited v Ipswich City Council; W & V Nominees Pty Ltd as Tte for the Elton Family Trust No.3 v Ipswich City Council (No 2) [2018] QLC 35

LAND COURT OF QUEENSLAND CITATION: BWP Management Limited v Ipswich City Council; W & V Nominees Pty Ltd as Tte for the Elton Family Trust No.3 v Ipswich City Council (No 2) [2018] QLC 35 PARTIES: BWP Management Limited ACN 082 856 424 (appellant) v Ipswich City Council (respondent) FILE NO: LGR282-16 PARTIES: W & V Nominees Pty Ltd as Trustee for the Elton Family Trust No.3 (appellant) v Ipswich City Council (respondent) FILE NO: LGR283-16 DIVISION: General division PROCEEDING: Applications for costs DELIVERED ON: 12 October 2018 DELIVERED AT: Brisbane HEARD ON: Submissions closed 27 July 2018 HEARD AT: Brisbane MEMBER: PA Smith -- 1 of 14 -- 2 ORDERS: In the matter of LGR282-16: The respondent pay 50% of the appellant’s costs of and incidental to the appeal on the standard basis. In the matter of LGR283-16: The respondent pay 50% of the appellant’s costs of and incidental to the appeal on the standard basis. CATCHWORDS: PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – cost discretion under s 34 Land Court Act 2000 – where the Court has an unfettered discretion to award costs – where argued there are no countervailing considerations against a costs order – where argued that not awarding costs would “erode” the appellants success – where the appellants’ and respondent’s primary arguments were rejected by the Court – where the Court applied the least burdensome category when two categories applied – where appellant argues great weight should be placed on their overall success – where argued by the respondent that the parties were “equally” successful as both contended categories applied – whether efficiency is a relevant consideration – whether a public authority should be protected from a costs order – where argued that appellants incurred unnecessary costs by engaging two barristers – relevant factors – commercial interest – outcome of litigation – nature of the parties – nature of the representation – reasonableness of party conduct in litigation Land Court Act 2000 s 34 BHP Queensland Coal Investments Pty Ltd & Ors v Cherwell Creek Coal Pty Ltd (No 2) (2009) 30 QLCR 173; [2009] QLAC 8, followed BHP Queensland Coal Investments Pty Ltd & Ors v Cherwell Creek Coal Pty Ltd (2009) 30 QLCR 140; [2009] QLAC 5, followed BWP Management Limited v Ipswich City Council; W & V Nominees Pty Ltd as Tte for the Elton Family Trust (No.3) v Ipswich City Council [2018] QLC 14, cited PT Limited & Westfield Management Limited v Department of Natural Resources and Mines (2007) 28 QLCR 285; [2007] QLAC 121, cited -- 2 of 14 -- 3 Starr v Appleton [2009] QLC 102, applied Tamawood Limited & Anor v Paans (2005) 2 Qd R 101, considered Wyatt v Albert Shire Council [1987] 1 Qd R 486, cited APPEARANCES: ANS Skoien with D Jones (instructed by Lander & Rogers) for the appellants MF Johnston (instructed by Colin Biggers & Paisley) for the respondent Introduction [1] On 13 June 2018 I allowed both appeals against the categorisation decisions of the respondent. Both matters were heard together. The decision had some complexity due to the applicability of two possible rating categories. Both appellants now seek costs orders in their favour. Conversely, the respondent seeks orders that each party bear their own costs. [2] The applications were heard on the papers following the receipt of written submissions from the parties. Background [3] Both of the appellants in these two very closely related categorisation appeals commenced proceedings against the Ipswich City Council on 20 July 2016. [4] On 26 August 2016, her Honour, President FY Kingham, ordered that the parties participate in mediation before the Judicial Registrar of the Court by 20 October 2016. The mediation was unsuccessful. [5] On 3 March 2017, the matter was before President Kingham for a directions hearing which resulted in it being listed for a 1 day hearing. [6] On 7 July 2017 the matter was back before the Court for directions. No experts had been nominated to give evidence. Rather, the parties had nominated lay witnesses. On the same date, the parties sought that the hearing listing be vacated. Consequently, her Honour, President Kingham, relisted the matter for hearing for two days, commencing 18 October 2017. [7] The order of President Kingham on 7 July 2017 reserved the costs of the review before her Honour. -- 3 of 14 -- 4 [8] On 10 October 2017, the parties informed the President that a one-day hearing would be sufficient for this matter and that counsel did not intend on making any oral submissions. [9] The hearing of this matter then commenced before me on 18 October 2017. As I noted in the final decision allowing the appeals by both appellants,1 the hearing of this matter was significantly truncated because the parties agreed that there was no contest on the facts, and that neither party required any witnesses for cross-examination. [10] As the filed affidavit material was lengthy and there were challenges in the written submissions to some of the evidence, on 18 October 2017, I directed the parties to supply the Court with an agreed statement of facts by 3 November 2017. This proved rather difficult, and it was not until after intervention by the Court that the agreed statement of facts was filed on 13 December 2017. [11] The agreed statement of facts was lengthy and highly detailed. [12] On 13 June 2018, following delivery of the decision, I ordered the parties to file and serve their costs submissions over a period ending 27 July 2018. General principles [13] It is not in dispute in this matter that s 34 of the Land Court Act 2000 is the source of the Court’s power to make orders as to costs. The section states: 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. [14] As the Land Appeal Court said in BHP Queensland Coal Investments Pty Ltd & Ors v Cherwell Creek Coal Pty Ltd, the Land Court has a discretion to award costs unconfined except in so far as the subject matter and scope of the legislation does so; the discretion must be exercised judicially and in accordance with established principles and factors relevant to the litigation; and a significant factor influencing the exercise of the discretion to award costs is the outcome of the litigation. 2 1 BWP Management Limited v Ipswich City Council; W & V Nominees Pty Ltd as Tte for the Elton Family Trust (No.3) v Ipswich City Council [2018] QLC 14. 2 (2009) 30 QLCR 140; [2009] QLAC 5 [15]. -- 4 of 14 -- 5 [15] In BHP Queensland Coal Investments Pty Ltd & Ors v Cherwell Creek Coal Pty Ltd (No 2) the Land Appeal Court observed that the Local Government Court’s power to award costs under s 31(1) of the City of Brisbane Town Planning Act 1964 “as it thinks fit” was similar to the Land Court’s power to award costs under s 34 “as it considers appropriate”.3 Hence, relevant legal authorities relating to costs decisions under s 31(1) such as Wyatt v Albert Shire Council4 can be relied upon to guide the Land Court in exercising its discretion whether to award costs under s 34. [16] Referring specifically to Wyatt, the Land Appeal Court went on at [6] in BHP (No 2) to observe: “The discretion is not to be exercised arbitrarily, but judicially, that is, for reasons that can be considered or justified. Resort may be had to any settled practice of a court but a purported exercise of discretion which fails because the mind is closed to relevant considerations through a rigid adherence to preconceptions is an error of law. Thus an approach that required exceptional circumstances to be established before such a wide discretion is exercised is likely to be incorrect. Similarly it would not be right to start with the preconception that costs follow the event. The Court also said that it would be wrong to attempt to lay down rules governing the exercise of the discretion and each case should be governed by its circumstances.” [17] In addition, I note the comments of then Member Keim SC when assessing costs in relation to an unsuccessful rehearing application of a mining compensation determination. The learned Member said: “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 3 (2009) 30 QLCR 173; [2009] QLAC 8 [6]. 4 [1987] 1 Qd R 486. -- 5 of 14 -- 6 indemnify the beneficiary of the order for the expenses incurred in the litigation.”5 Party positions [18] The appellants in this matter have made an application that I make an order in each of the appeals that the respondent pay the appellants costs of and incidental to both appeals on the standard basis, if not agreed. [19] The appellants cite the Court of Appeal in Tamawood Limited & Anor v Paans6 where Keane JA stated at [33]: “…In the absence of countervailing considerations, where a party has reasonably incurred the cost of legal representation, and has been successful before the Tribunal, it could not rationally be said to be in the interests of justice to allow that success to be eroded by requiring that party to bear the costs of the representation which was reasonably necessary to achieve that outcome. Finally in this regard, it should also be borne in mind that s 71(4)(a) of the Act expressly recognizes that "the outcome of the proceeding" is a consideration which is relevant to the exercise of the discretion conferred by s 71(1) of the Act.” [20] I pause at this point to also note other comments made by then Justice of Appeal Keane in Tamawood: “[30] First, the Tribunal found that each party was justified in engaging the services of legal representatives to assist them in the conduct and defence of what the Tribunal recognized to be complex proceedings. That finding alone could be, in my view, a sufficient basis to conclude that the interests of justice warranted the exercise of the discretion to award costs in favour of the successful party, at least in the absence of any countervailing consideration. The Tribunal erred in failing to appreciate the implication of this finding for an understanding of where the interests of justice lay in relation to the costs of the proceedings. [31] There will inevitably be occasions when the aspirations of the legislature that parties before the Tribunal should not be legally represented cannot reasonably be met having regard to the nature of the issues involved. That this is so is recognized by the terms of s 73 which deals with the topic of representation. It provides: ‘73 Purposes of div 7 The main purpose of this division is to have parties represent themselves and save legal costs unless the interests of justice require otherwise.’ [32] If orders for costs were not to be made in favour of successful parties in complex cases, then just claims might not be prosecuted by persons who are unable to manage complex litigation by themselves. Such a state of affairs would truly be contrary to the interests of justice; and an intention to sanction such a state of 5 Starr v Appleton [2009] QLC 102 [21]. 6 (2005) 2 Qd R 101; [2005] QCA 111. -- 6 of 14 -- 7 affairs cannot be attributed to the legislature which established the Tribunal. [33] To say this is not to ignore s 71(5)(b) of the Act. There is a clear distinction, in terms of the interest of achieving justice, between the mere fact of having representation and the fact of having reasonably obtained that representation because of the complexity of the case…” [21] It is clear that his Honour’s reasons contemplate “complex” cases which often take long periods of time, and therefore incur higher costs, as being cases in which the interests of justice would be better served by awarding costs to a successful litigant in circumstances where costs do not necessarily follow the event. His Honour identifies a clear distinction between a litigant merely having representation and a litigant having “reasonably obtained” representation due to the complexity of a case. [22] What his Honour was doing in Tamawood, was examining whether, in the Commercial and Consumer Tribunal, where legal representation is often not necessary unless the complexity of the matter calls for such, a litigant is entitled to costs consequently incurred through reasonable representation. As is evident in his Honour’s reasons, it is not necessary to award costs where a litigant is successful, rather, in complex matters, if the interests of justice lay in relation to costs, it is appropriate for costs to be awarded unless some circumstance arises countering such award. [23] In their submissions, the appellants’ draw my attention to Land Appeal Court authority for the proposition that an award of costs in favour of a successful party is not intended to be a punishment to the unsuccessful party, but rather, to compensate the successful party for the costs incurred with their success.7 [24] The appellants contend that the following reasons support an award for costs in their favour and therefore, suggesting that costs should follow the event: (1) The Court’s decision involved rejecting the respondent’s categorisation of both Bunnings properties as Category 52a PCLUC 16 Drive-in Shopping Centre under the Ipswich City Council’s 2015/16 Budget; 7 Appellants’ Submissions on Costs, page 4 citing PT Limited & Westfield Management Limited v Department of Natural Resources and Mines (2007) 28 QLCR 285; [2007] QLAC 121 [25]. -- 7 of 14 -- 8 (2) The appellants maintained that the Bunnings stores should have been categorised as Category 44b PCLUC 11 Single – Shop; (3) The appellants also maintained that if both stores were within “Drive-in Shopping Centre” and “Shop – Single”, the Court should apply the one least burdensome to a landholder, namely Shop – Single; (4) While being unsuccessful with arguing that Category 52a could not apply, the appellants were successful in relation to Category 44b, contrary to the respondent’s contentions; (5) “Importantly”, the submission that if both categories were applicable the Court should adopt the least burdensome one, was a proposition maintained from the time of the commencement of the appeals and was opposed by the respondent; (6) Both appellants were “forced” to commence, and prosecute, the appeals until final determination by the Court; and (7) Adopting the words in Tamawood, the appellants reasonably incurred legal costs in achieving their success and there are no countervailing circumstances to justify an “erosion” of that success by refusing to award costs.8 [25] The appellants also submit that: “3.7 Conferral of great weight upon the consideration of the Appellants’ success in this matter is consistent with the nature of the regime established by the LGR for challenging ratings categorisations. While the rights of objection and challenge to rates are limited, landowners (who have no control over the ratings decisions) ought not be dissuaded from challenging incorrect decisions about ratings categorisation because of fear that the burden of legal costs will erode the ultimate success in any such challenge.”9 [26] It would have been more helpful to the appellants’ submissions if they had unpacked the first proposition in this paragraph. If such “regime” exists suggesting that “great weight” should be placed on the appellants being successful in having the rating category changed from 52a to 44b, I have not seen it. 8 My summary taken from the Appellants’ Submissions on Costs. 9 Appellants’ Submissions on Costs. -- 8 of 14 -- 9 [27] In response to the appellants’ submissions, the respondent made the following five points to support the argument that the appropriate order is that both parties bear their own costs: (1) Both parties were “equally successful” that the Bunnings properties fell within the contended categories and that the ultimate success for the appellants was finely balanced; (2) Given that the Court was at a “deadlock” it was appropriate and reasonable for the issues to be determined by the Court; (3) The respondent conducted the appeals efficiently and focused only on issues in dispute and did not cross-examine any witnesses. Both parties limited the oral submissions to half a day and had an agreed statement of facts. The respondent avoided unnecessary expense, which is a relevant factor for the Court in awarding costs; (4) The respondent is a public authority acting in the public interest and its revenue base finances service to the community. Any adverse costs order will be paid from “public purse and not from commercial profits”; and (5) The appellants unnecessarily increased their costs by engaging two barristers.10 [28] The respondent finishes its submission as to costs by proposing that the appropriate order is no costs, however, if I am inclined to award costs, that it should be limited to no more than 50% on the standard basis. [29] In relation to point 4 of the respondent’s above-points, the respondent cites BHP Queensland Coal Investments Pty Ltd & Ors v Cherwell Creek Coal Pty Ltd (No 2)11 to support its contention that commercial interests are a relevant factor in determining whether costs should be awarded. [30] The respondent also relies upon, and emphasises, statements of the Land Appeal Court in BHP to support costs not following the event, including: 10 My summary taken from the Respondent’s Submissions Opposing Costs. 11 (2009) 30 QLCR 173; [2009] QLAC 8. -- 9 of 14 -- 10 “[6] …Resort may be had to any settled practice of a court but a purported exercise of discretion which fails because the mind is closed to relevant considerations through a rigid adherence to preconceptions is an error of law…Similarly it would not be right to start with the preconception that costs follow the event.” [31] In reply, the appellants’ main points were that their success is a relevant, and significant, factor in deciding whether to award costs and is consistent with then Justice of Appeal Keane’s observations in Tamawood if there are no significant countervailing considerations relevant to the issue of costs. [32] To each of the five points made by the respondent at [28], the appellants reply can be summarised for each point as follows: (1) This is unsustainable. The appellants had overall success and achieved the outcome sought. The Court rejected the respondent’s contention that only Category 52a would serve the purpose of the 2015/16 Budget; (2) “Finely balanced issues” and the “deadlock” the Court was faced with has no significance in an argument that costs should not be awarded. The respondent failed to appreciate that, at the very least, the properties were capable of being within Category 44b Shop – Single; (3) It is equally true to say the appellants conducted the appeals efficiently. A consideration of efficiency “takes the matter nowhere”; (4) The respondent seeks some advantage by being a public authority. A service to the community ought not be viewed as one that overrides that same community from challenging an erroneous categorisation. Being a public authority, the respondent has a responsibility with regard to litigation. The respondent could have saved finances by acknowledging the appellants contentions from the start. Both the respondent and the appellants have a financial interest in the proceedings. (5) The argument that the appellants increased their costs by engaging two barristers is pure speculation. An affidavit of Ms Nixon sworn 25 July 2018 supports that it is erroneous speculation. There was no additional cost, above and beyond what would have been incurred in any event and it is not a consideration relevant to the discretion to award costs. -- 10 of 14 -- 11 [33] The appellants finish their reply submissions by providing that there are “no circumstances” weighing against the success as a key consideration in favour of an award of costs. Analysis [34] There are a number of aspects of these categorisation appeals that warrant consideration. As I trust my reasons for judgment make clear, the primary positions of both the appellants and the respondent were not successful on the hearing of the appeals. The appellants contended that the appropriate rating category was Category 44b PCLUC 11 Single – Shop and not Category 52a PCLUC 16 Drive-in Shopping Centre. The respondent contended in each appeal for the exact reverse. Only the appellants made submissions in the alternative as to what should occur if the Court found that the commercial activities undertaken by each appellant could properly fit under either Category 44b or 52a. [35] The appellants were unsuccessful in their contention that Category 52a could not apply under the respondent’s 2015/16 Budget. The respondent was unsuccessful in arguing that Category 44b could not apply under the same Budget. [36] The determination of the matter finally turned on a resolution as to what should properly occur in circumstances where two categories could apply. In the end, having found that both Category 52a and 44b could apply, and applying the principles of statutory interpretation that I considered relevant, I reached the conclusion that the appropriate category to apply in these unusual circumstances was Category 44b. [37] It is therefore trite to say that the appellants were entirely successful in their appeal before this Court. They were successful insofar as the ultimate orders allowing the appeals were concerned, but their main argument in supporting their appeals was not successful. Of course, in the same way, the respondent’s position in each appeal was not successful. [38] I also note the discussion between the parties in their submissions as to whether or not orders for costs in categorisation determinations may impact upon the propensity of appellants to bring such matters before the Land Court due to a fear of costs orders being made against them should their appeal be unsuccessful. On the other hand, appellants who have a justifiable dispute with their local authority over a -- 11 of 14 -- 12 categorisation matter and successfully bring an appeal before this Court should also not be dissuaded from doing so by a concern that the perhaps significant costs of the appeal will be unlikely to be recovered, even if the appeal is successful. [39] It may be thought that this position of concern for members of the public bringing action against their local authorities is analogous to that of a landholder who brings an appeal to this Court against a decision on objection by the Valuer-General in a valuation matter. More often than not in valuation appeals, this Court makes no order as to costs. However, the important distinction to note is that the Land Valuation Act 2010 makes specific provision for orders as to costs in valuation appeals, unlike the legislation which allows for categorisation appeals against local authorities,12 which is silent. [40] Had the legislature intended that any special considerations be taken into account with respect to categorisation appeals, over and above those normally to be taken into account pursuant to s 34 of the Land Court Act 2000, such a provision could easily have been legislated. The fact that there is no specific legislation for categorisation appeals with respect to costs is a factor which I take into account in making my determination in this matter. [41] I do find that all parties conducted the appeal efficiently, especially regarding the hearing of the matter, although the fact that the respective parties found it so difficult to reach agreement as to the statement of facts underlies the real areas of disputed contention in this matter. I do not find that any party unnecessarily put the other party to cost and expense that was unwarranted for the proper determination of these appeals. [42] I am not convinced by the respondent’s submission that because the respondent is a public authority acting in the public interest with revenue based finances used to service the community, that that statement, even if it is correct, should bear upon the ultimate determination of this matter. Just as I indicated with respect to the factors which may weigh upon an appellants mind as to whether or not to bring an appeal out of a concern of adverse orders as to costs, in the same way, the legislature could have made special provisions to protect the position of a public authority in a categorisation 12 Local Government Regulation 2012. -- 12 of 14 -- 13 matter had it chosen to do so. I am not persuaded by the respondent’s submission in this respect. [43] A further interesting point is the assertion by the respondent that the appellants unnecessarily increased the quantum of costs they incurred in the matter because of their engaging two counsel. The appellants point to the affidavit of Louise Nixon of 25 July 2018. I note that in the appellants’ view, the appellants engaged two counsel on the basis that there would be no additional costs above and beyond the costs that would have been incurred in any event by the involvement of the leading junior who was already retained in the case. [44] As interesting as this contention by the respondent and the appellants reply thereto may be, it is not relevant to my current considerations. This application is not concerned with the quantum of costs to be awarded to one party or another; it is concerned with a determination as to whether or not an award for costs should be made. Should there be an award of costs, any dispute as to the quantum of the costs would be subject to negotiation between the parties and, in the event that such negotiations failed to reach a resolution, assessment by the relevant officer. [45] The appellants make out a reasonable case in support of their contention that there should be an award of costs in each matter on the standard basis in their favour. This assertion is weakened however by the fact that the key component of both appellants argument; that Category 44b and not Category 52a applied, was not made out. [46] In like manner, the respondent does correctly point out the finely balanced nature of the decision in this matter, but the respondent also fails to appreciate that it was fundamentally unsuccessful in its defence insofar as it argued that Category 44b was not appropriate and that only Category 52a was. [47] At the end of the day, the appellants were ultimately successful in both appeals as a result of arguments that they put in the alternative to their primary position. [48] Taking all factors into consideration, I find merit in the appellants’ contention that it is appropriate in both these matters to make an award for costs to the appellants. However, cognisant of the various points made by the respondent as to an award of costs in this matter, I am satisfied that this is an appropriate matter where the award -- 13 of 14 -- 14 for costs should be limited to 50% of the appellants costs of each appeal on the standard basis. Determination [49] With respect to both appeals, it is appropriate to order that the respondent pay 50% of each appellant’s costs of and incidental to each appeal, on the standard basis, such costs to be agreed between the parties or, failing agreement, to be assessed. Orders In the matter of LGR282-16: The respondent pay 50% of the appellant’s costs of and incidental to the appeal on the standard basis. In the matter of LGR283-16: The respondent pay 50% of the appellant’s costs of and incidental to the appeal on the standard basis. PA SMITH MEMBER OF THE LAND COURT -- 14 of 14 --