Agreedto Pty Ltd v Chief Executive, Department of Natural Resources and Mines (No. 2) [2012] QLC 73 (2012) 33 QLCR 479

LAND COURT OF QUEENSLAND CITATION: Agreedto Pty Ltd v Chief Executive, Department of Natural Resources and Mines (No. 2) [2012] QLC 73 PARTIES: Agreedto Pty Ltd (appellant) v Chief Executive, Department of Natural Resources and Mines (respondent) FILE NO: LAA951-10 DIVISION: Land Court of Queensland - General Division PROCEEDING: Application for costs DELIVERED ON: 21 December 2012 DELIVERED AT: Brisbane HEARD AT: On the Papers MEMBER: Mr PA Smith ORDER: 1. The appellant pay the respondent’s costs, including any reserved costs, of and incidental to the appeal on the standard basis, such costs to be agreed or, failing agreement, to be assessed by a costs assessor of the Supreme Court. 2. Pursuant to s 34(3) of the Land Court Act 2000, Order 1 may be made an Order of the Supreme Court and enforced in the Supreme Court. CATCHWORDS: Costs – unfettered discretion – whether costs should follow the event – no compulsion involved – case unlike valuation, acquisition or resources compensation cases Appeal Costs Fund Act 1973 Land Act 1994 Land Court Act 2000, s.34 Mineral Resources Act 1989 WH Bowden v Valuer-General (1980-1981) 7 QLCR 138 Mentech Resources Pty Ltd v MCG Resources Pty Ltd (In Liq) & Ors No. 2 [2012] QLAC 002 Seafarm Pty Ltd v Minister for Natural Resources and Water [2008] QLC 0129 APPEARANCES: SOLICITORS: CL Hughes SC and S Holland, for the appellant PJ Flanagan SC and SP Fynes-Clinton, for the respondent Holman Webb, Lawyers for the appellant Director, Legal Services, Department of Natural Resources and Mines, for the respondent -- 1 of 6 -- 2 Background [1] On 23 May 2012 I delivered my decision in the matter of an appeal by Agreedto Pty Ltd (Agreedto) against an internal review decision of the Minister for Natural Resources and Mines (the respondent) as to the purchase price of land for conversion of tenure purposes. The respondent contended for a purchase price of $10,000,000, while Agreedto contended for a purchase price of $Nil. Agreedto’s appeal was dismissed. [2] Both parties subsequently filed general applications seeking orders as to costs. Agreedto seeks the following orders:1 “The applicant/appellant seeks an order that: (a) the applicant/appellant be granted an indemnity certificate in respect of its costs of the proceedings to be assessed; or, in the alternative (b) each party bear their own costs of the proceedings.” The orders that the respondent seeks are:2 “1. The appellant pay the respondent’s costs of and incidental to the appeal to this Court (on a standard basis) 2. Such orders this Honourable Court deems fit.” [3] Agreedto’s original appeal was made pursuant to the provisions of the Land Act 1994 (Land Act). As the Land Act does not have any specific provisions relating to the payment of costs of any appeal against the Minister’s review decision on a purchase price for conversion of tenure, it is necessary to turn to the general power of the Land Court to award costs. This is found in s.34 of the Land Court Act 2000 (LCA) 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. (3) An order made under subsection (1) may be made an order of the Supreme Court and enforced in the Supreme Court. (4) For subsection (3), it is enough to file the order in the Supreme Court. (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. Indemnity Certificate [4] As indicated, Agreedto by its general application seeks an indemnity certificate. Unfortunately, Agreedto has not provided the Court with any legislative or judicial authority which indicates that the Court has power to grant an indemnity certificate in a matter such as the one currently under consideration. By contrast, the respondent contends that3: 1 Appellant’s General Application filed on 13 June 2012 at p.2. 2 Respondent’s General Application filed on 13 June 2012 at p.2. 3 See Reply Submissions of the Respondent – Costs, filed on 4 July 2012 -- 2 of 6 -- 3 “1. The Respondent is unaware of any power for a court to issue an ‘indemnity certificate’ in respect of costs incurred by, or awarded against, a party in legal proceedings, other than the powers contained in:- (a) the Appeal Costs Fund Act 1973; and (b) section 91 of the Land Court Act 2000. 2. So far as the Respondent can ascertain, neither section 15, section 22 or any other provision of Appeal Costs Fund Act confers jurisdiction on the Land Court to issue an indemnity certificate in respect of the outcome of a first instance decision in an appeal of the present type. 3. Section 91 of the Land Court Act 2000 is the only other statutory provision relevant to this Court’s jurisdiction where there is mention of an indemnity certificate, but that provision is self-evidently irrelevant to the present proceedings.” [5] Although it would appear that the Land Court falls within the definition of “court” as set out in s.4 of the Appeal Costs Fund Act 1973 (ACFA), I am inclined to agree with the respondent’s submissions as to the operation of ss 15 and 22. In circumstances where one party alleges that the provisions of the ACFA are not available and where the party seeking the grant of an indemnity certificate has not sought to establish the legislative basis upon which such certificate could be granted, I do not consider it appropriate to consider the matter further. Agreedto’s application for an indemnity certificate is denied. Exercise of discretion to award costs [6] Both parties have provided useful submissions as to the question of my discretion to award costs, including reference to authorities. [7] Agreedto seeks an order that each party pay their own costs, for the primary reason that it says that costs should only be awarded in “special cases” (relying on WH Bowden v Valuer- General)4 and should not simply follow the event, and that the case at hand involved complex and novel issues of law which had not previously been argued before the Court. [8] I certainly agree that there is no automatic or overriding principle that costs orders should follow the event in the Land Court. However, I agree with the respondent’s contention that the outcome of litigation informs the decision as to the exercise of the discretion. As the already oft-quoted Land Appeal Court decision of Mentech Resources Pty Ltd v MCG Resources Pty Ltd (In Liq) & Ors No. 25 said “[3] Section 72(1) of the Act provides that s34, amongst other provisions, applies ‘with necessary changes’ to the Land Appeal Court and a ‘reference in the applied sections to the Land Court is taken to be a reference to the Land Appeal Court’. [4] Hence the Land Appeal Court may order costs ‘as it considers appropriate’. The discretion to award costs is unfettered. However the rule often followed, and the rule incorporated in r689 of the Uniform Civil Procedure Rules 1999, is that costs follow the event. That rule, while it does not govern the exercise of the discretion here, nonetheless informs it, as there is justice in that approach. It protects those put to unnecessary and substantial expense at the behest of others. There is no reason here why costs should not follow the event in the usual way. 4 (1980-1981) 7 QLCR 138. 5 [2012] QLAC 002 at paragraphs 3-4. -- 3 of 6 -- 4 [9] A useful precedent is to be found in the 2008 Land Court case of Seafarm Pty Ltd v Minister for Natural Resources and Water.6 That case was also an appeal against a review decision as to the purchase price for conversion of tenure. Member Scott provided a good summary of relevant authorities and consideration to be taken into account. He said:7 “[3] In Chief Executive, Department of Main Roads v Regan & Ors [No 2] the Land Appeal Court affirmed that the power of the Land Court to award costs under s.34(1) or the Land Appeal Court under the equivalent s.72 of the Land Court Act, is unqualified and unfettered:- "The power of this Court to award costs is found in Sections 34(1) and 72 of the Land Court Act 2000. Those provisions do not alter the powers which were previously conferred on this Court by s.44(16) of the Land Act 1962 and this Court continues to have an unfettered discretion as to the costs of and incidental to an appeal before it." [4] The Land Appeal Court used similar language to Regan in Haber v Department of Main Roads: "It is clear that the discretion given to this Court by s.34(1) of the Land Court Act is unfettered, but the discretion must be exercised judicially, that is, for reasons that can be justified and by reference to relevant considerations (Wyatt v Albert Shire Council [1987] 1 QdR 486 at 489; Kabale Holdings Pty Ltd v Chief Executive, Department of Transport (1997) 18 QLCR 166 at 198). [5] In Haber the Court made reference to Barnes v Director General, Department of Transport where at 135 the Land Appeal Court said: "The general rule that costs will usually follow the event is one which is deeply embedded in our law. … It is a general rule which prima facie should be applied in this case." [6] Similar language is found in Regan "The general rule is that costs ordinarily follow the event, unless there are special circumstances warranting departure from that general rule. We are conscious that there has been some flexibility in the application of the general rule against a dispossessed owner in compensation cases following the compulsory acquisition of land: (Moyses v. Townsville City Council (1979) 6 QLCR 271; Minister for the Environment v. Florence (1981) 45 LGRA 127; and Banno v. The Commonwealth of Australia (1993) 81 LGERA 34)." [7] More recently in PT Limited and Westfield Management Limited v Department of Natural Resources and Mines the Land Appeal Court made reference to s.66 of the Valuation of Land Act 1944 and to s.70 of that Act then said: "[20] The common law principle which has long dominated the exercise of the discretion to award costs that they “follow the event” has been incorporated into r 689 of the Uniform Civil Procedure Rules 1999 but is found neither in the VLA nor the Land Court Act. In interpreting s 66 the Court should not therefore be bound by any presumptive rule or principle – the discretion is complete, but must be exercised judicially. [22] There may be any number of factors which a court vested with a general jurisdiction to award costs might entertain. One of those factors is the outcome of the litigation. Another might be the overall purpose of the legislation. Contemporary legislation in Queensland tends to make express provision about costs if it is thought desirable that parties not be discouraged from seeking to assert rights by the fear of adverse costs orders." (footnotes deleted) 6 [2008] QLC 0129. 7 At paragraphs 3-9. -- 4 of 6 -- 5 [8] There is no such provision in the Land Act regarding costs nor, it follows, is there any qualification of the type found in s.66 and s.70 of the Valuation of Land Act and s.27 of the Acquisition of Land Act 1967 each of which sets up a mathematical formula to which the Court must refer in deciding which party may make an application for costs. [9] Unlike a valuation under the Valuation of Land Act or a resumption under the Acquisition of Land Act where the imposition of legislature power on a landholder is involuntary, Seafarm chose to take advantage of the opportunity afforded it of applying to freehold the lease it held. No compulsion was involved. To that extent the appellant, in rejecting the price sought by the Minister and then invoking the jurisdiction of this Court to determine the purchase price, took on the characteristic of a private litigant. The Minister was therefore drawn into the contest but could not be said to be comparable to a passive landholder whose land was resumed. The Minister's position was one of protecting the public interest in the price to be paid for a State asset on the basis of his advice as to the appropriate price and the appropriate legal basis for determining that price.” [10] I agree with Member Scott, and in particular with his comments about conversion cases not involving the compulsion of valuation or acquisition legislation, to which I would add the position of landholders in compensation cases under the Mineral Resources Act 1989 and like resources legislation. [11] The respondent makes forceful submissions in its application for costs which it has usefully summarised as follows:8 “14. In summary:- (a) The appellant sought to pursue a private commercial interest, in circumstances where its success would have come at the expense of a public interest. (b) The appellant was wholly unsuccessful. (c) The appellant chose to take an ‘all or nothing’ approach, contending for a zero value for a substantial parcel of ocean-front land with proved development potential, which approach depended for its success on the appellant succeeding on 2 primary issues of law. (d) The appellant could point to no authority directly or otherwise strongly supporting its arguments on those issues, and failed to deal in a persuasive way with authorities which, at the least, cast real doubt on those arguments. (e) The respondent was compelled by the course taken by the appellant to litigate; the positions were so polarised that there was no scope for compromise. 15. It is submitted that, bearing constantly in mind that costs are an indemnity for a party compelled to engage in litigation to defend a position which is vindicated in that litigation, and not a sanction or punishment, it is appropriate in all the circumstances that the appellant be ordered to pay the respondent’s costs of and incidental to the appeal, on the standard basis.” Determination [12] Although I accept that the appeal did raise complex and novel issues, I agree with the submissions of the respondent that this is an appropriate case to make an award of costs in the respondent’s favour. [13] Agreedto in its reply submissions noted that the decision in the substantive matter is subject to an appeal to the Land Appeal Court, and that the Land Appeal Court’s decision is still awaited, and sought in the alternative orders that the determination of costs in this matter 8 See Submissions of the Respondent – Costs, filed on 13 June 2012 at paragraphs 14-15. -- 5 of 6 -- 6 should await the Land Appeal Court decision. For my part, I see no reason why this decision on costs should be further delayed. Orders 1. The appellant pay the respondent’s costs, including any reserved costs, of and incidental to the appeal on the standard basis, such costs to be agreed or, failing agreement, to be assessed by a costs assessor of the Supreme Court. 2. Pursuant to s.34(3) of the Land Court Act 2000, Order 1 may be made an Order of the Supreme Court and enforced in the Supreme Court. PA SMITH MEMBER OF THE LAND COURT -- 6 of 6 --