Dawson v Department of Natural Resources and Mines [2004] QLC 112

LAND COURT OF QUEENSLAND CITATION: Dawson v Department of Natural Resources and Mines [2004] QLC 112 PARTIES: Aubrey W Dawson (applicant) v. Chief Executive, Department of Natural Resources and Mines (respondent) FILE NO: A2001/0188 DIVISION: Land Court of Queensland PROCEEDING: Application for Costs DELIVERED ON: 23 December 2004 DELIVERED AT: Brisbane HEARD AT: Brisbane by Written Submissions MEMBER: Mr RP Scott ORDER: I order that the applicant pay to the respondent 50% of the costs of and incidental to the hearing and determination of the appeal. The amount of such costs shall on application of either party be decided by the appropriate assessing officer of the Supreme Court under the scale of costs prescribed by law for proceedings in the Supreme Court. CATCHWORDS: Practice and Procedure - Costs - Conduct of party - Abuse of process - Other special reasons - Court restrained in ordering costs in administrative appeal. APPEARANCES: Mr AC Wrenn for the applicant Mr K Fisher (Crown Law) for the respondent [1] In reasons published on 15 October 2004 I dismissed an appeal by the applicant against the respondent's decision to refuse an application made under the Water Resources Act 1989. The respondent seeks an order for a "full award of costs" by reference to a -- 1 of 9 -- 2 schedule provided in which costs are calculated to total $12,899.21. The applicant resists that application and submits that there ought to be no order as to costs and that each party should bear their own costs. Whilst it might be said that at this stage of the proceedings the Chief Executive could be described as the applicant, I prefer to maintain the description of the parties included in the published reasons. [2] In those reasons under the heading "History", I set out at paras [14] to [25] inclusive a brief history of litigation concerning a weir in the Johnstone River which was the subject of the applicant's appeal. I will not repeat that history in detail but will summarise it:  Before February 1992 the applicant sought approval of the respondent for certain works to be carried out in the Johnstone River. Approval was given without inspection and without the issue of a formal licence.  Following inspection by the respondent's officer the applicant made an application under the Water Resources Act for a licence. That licence issued but was objected to by upstream landowners RJ & ND Rogers.  The objection metamorphosed into an appeal which was disposed of by a decision of the then President, Mr White, on 25 March 1994. I refer to that as the Rogers' case.  The appellant in the Rogers' case enjoyed some success necessitating an amendment to the licence as issued. The amended licence also reflected a correction of an administrative error, however Mr Dawson appealed against that amendment. The appeal was dealt with by the Court and in reasons published by Member Wenck on 23 April 1996. The appeal was dismissed.  On 6 June 1996 the applicant applied to amend the existing licence seeking an increase in the height of the weir to an elevation of 101.10 metres. The Rogers objected again, however the parties submitted to mediation managed by the Court and entered into a mediation agreement on 12 June 1998. That agreement included a provision lowering the height of the weir to 99.12 metres.  On 7 February 2000 the applicant applied to the respondent to have the height of the weir authorised at 100.10 metres. That application was refused and the refusal appealed against. [3] There were eight grounds of appeal together with particulars. In my reasons I said: "[33] In these circumstances I must say that I am perplexed by the grounds of appeal and particulars that allege some failure on the part of the Chief Executive to proceed, in considering Mr Dawson's application, in accordance with the provisions of the Water Resources Act. In saying this I refer to grounds 1, 2, 3, 4 and 7. Ground 8 is not a proper ground of appeal. [34] Any conclusion by me in favour of such grounds of appeal would not advance the applicant's case as any such conclusion would not take me one step closer to deciding whether the weir ought to be raised by 0.98, or thereabouts. -- 2 of 9 -- 3 [35] Ground 5(b) raises for re-litigation the issues disposed by this Court in its decision of 23 April 1996. Counsel for the applicant contended otherwise, however those contentions were without merit." [4] I dealt with the remaining grounds of appeal on the merits and concluded that I was not convinced that the decision of the Chief Executive to refuse the application should be varied or revoked. The appeal was therefore dismissed. [5] The power for the Land Court to order costs for a proceeding is contained in s.34(1) of the Land Court Act 2000: " 34(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." [6] Ground 1 of the application for costs by the respondent simply recited that it was successful in defending the appeal, whilst Ground 10 made reference to s.34 of the Land Court Act. I need not comment further on these grounds nor on Ground 9 which said that the argument of the applicant, based on s.100 of the Commonwealth of Australia Constitution Act 1900 was not relevant to the exercise of powers by the respondent relevant to the appeal. [7] Ground 2 said that the appeal was substantially the same as the appeals previously determined by the Court. The weir, the subject of Mr Dawson's application refused by the respondent, was the common element in each of the appeals heard by the Land Court or dealt with by mediation. The other common factor was the concern of the Rogers. Mr Dawson was not a party to the first appeal. The mediation could not properly be described as a determination of the Court. The detailed issues in each appeal, whether dealt with mediation or decision, differed from those in other appeals, however the basic issues throughout have been associated with the height of the weir and the extent of ponded water that would be created. Only in the most recent appeal has the issue of the structural integrity of the weir and the safety of the swimming pool been raised as issues by the Chief Executive. [8] Ground 3 in the application for costs says that the appeal and the application against which the appeal was based were made in spite of the applicant's agreement with the respondent and a third party (the Rogers) setting the height of the weir. I take this to be a reference to the mediation. Elsewhere in its submissions the Chief Executive said, "The Court noted that this application to raise the height of the structure constituted an abuse of process ...". The applicant submits that the Court made no finding of abuse of process. The applicant relies on paras [26] and [27] of my reasons which said: -- 3 of 9 -- 4 "[26] Mr Dawson provided evidence the he had signed that mediation agreement unwillingly and on the understanding that he could, notwithstanding the agreement, make a further application relevant to any licence issued pursuant to that agreement. [27] There is no statutory prohibition on such an application being made. Mr Dawson made the application the subject of the present appeal – an application apparently designed to frustrate the agreement to which Mr Dawson was a party. To appeal against the refusal of an application that directly challenges the term of an agreement arrived at following a mediation conducted under the mantle of this Court might, in my opinion, properly be described as an abuse of process. It could fall to be classified as such either because Mr Dawson, who submitted himself to a Court administered mediation process, purported to enter into a mediation agreement without an intention to be bound by it; and/or because he acted to attempt to defeat the agreement and to do that through proceedings in this Court. I would be inclined to strike out the appeal on that basis except for the fact that no such submission was made by the Chief Executive who elected to deal with the appeal on the merits." [9] Now it is correct to say that the appeal was not struck out on the basis of abuse of process, however that was simply because no such submission was made by the Chief Executive. It is clear, however, that I had formed a view that the conduct of the applicant in mounting the appeal was such as would have justified a striking out on the basis of abuse of process had such a submission been made. The conduct of a party in the prosecution of a case is a relevant factor in a consideration of the question of costs (Moyses v Townsville City Council (1979) 6 QLCR 271 at 274). [10] The applicant submits that the respondent changed its decision and the stance it took in regard to the weir during the history of the various proceedings mentioned above. Whilst the factual basis of that contention was not fully spelt out, I take it to be a reference to the Chief Executive first approving the works, then requiring an application for a licence which it approved; then acting in accordance with the decision of the President in the Rogers' case. Whilst it would have been preferable for the respondent to have required an application for a licence at the outset, the error in that omission was quickly corrected. The respondent could, following the decision in Rogers, reasonably do nothing other than follow the outcome of those processes. [11] I do not find the conduct of the respondent to have been either reprehensible or vexatious, nor do I find that his officers maintained inappropriate conduct. [12] Ground 4 of the respondent's application says that the Court found that none of the grounds of appeal of the applicant were made out in the course of the hearing of the appeal. That ground is clearly correct. -- 4 of 9 -- 5 [13] Ground 5 says that the Court found that even if the grounds of appeal had been made out, the applicant's case would not have been advanced in any way. As the quotations from paras [33] and [35] of my published reasons reveal, this is not a strictly correct assertion as I did not conclude that all of the grounds of appeal were such that any conclusion by me in favour of such grounds would not advance the applicant's case. Nevertheless, I did conclude that Grounds 1, 2, 3, 4 and 7 did not provide any foundation for the success of the applicant. Counsel for the applicant submitted that this argument is not rational as any ground of appeal being successfully made out would ordinarily advance his client's case. That submission appears to express disagreement with my reasoning which I can only affirm. [14] Ground 6 in the respondent's application for costs says that the applicant did not make the (environmental) expert upon which he intended to rely, available for cross-examination in spite of a request for this from the respondent. In submissions the applicant's response was to say that it is "... difficult to see (taking into account that the (respondent) successfully defended this appeal) how the non-appearance of a witness for cross- examination did anything but save time and costs." That submission is properly described as having the logical defect entitled reductio ad absurdum much as one might be said to be saved from dying of thirst by having drowned. The applicant's case relied on an unsworn letter from the expert in question and from other experts and did not withdraw such reliance at any stage. [15] Grounds 7 and 8 of the respondent's application said: "7. The Court found that given the structure as it presently exists is clearly unsafe, even for its intended purpose to facilitate children, including disabled children to swim in the river, it could not give consent to any increase in the height of the crest of the weir. 8. The Court found that in the absence of any evidence as to the structural safety of the weir, it could not order that the licence be amended to permit the maximum height of the weir to be increased." [16] In response the applicant submitted that these matters have no bearing on the Court's discretion to award costs. The submission goes on to say that the present state of the weir is the result of the "stop works" notice given to the applicant by the respondent. The structure was, it was submitted, neither finished nor demolished subject to final resolution about the weir height which never reached 1.5 metres. It then said, "The matter now being finalised the cost of demolishing the structure will be borne by the (applicant)". [17] This submission raises issues which are not relevant to the issues decided in the appeal. The applicant became a licensee pursuant to his own application under the Water Resources Act. Should he now wish to demolish the works that is a matter for him, -- 5 of 9 -- 6 though I must say that I have no evidence that that is his intention. If such sworn evidence had been adduced, it may support a contention made by the respondent that it demonstrates the vexatious nature of the litigation initiated by the applicant. [18] The applicant sought to place some reliance on the decision of this Court published on 23 April 1996 (see para [2]). The applicant supplied the following quotation from that decision, together with emphasis. " It is observed that the subject licence was (apart from appeal provisions in the legislature) due to expire on 31 March 1996. If 'works' are to remain, or be altered, Mr Dawson would be required under the provisions of the Water Resources Act 1989 to make application for a fresh licence. The time now appears to have arrived for such application to be made and to include a description of the works which might be more complete and technically correct, if for example, the 'crest' should apply to a section of 'spillway' to remove any doubt - in the interests of all concerned. As I see it, it would be open for the applicant to seek a new licence for whatever 'works' he requires. The application then must be investigated and no doubt the decision of the Land Court in Rogers would not be overlooked by those responsible for the investigation. If evidence is available to warrant alteration to the Rogers decision, either favourably or otherwise to the applicant, then that evidence would need to be sought and considered. The decision of the chief executive on any new application, would be open to appeal to the Land Court, under presently existing legislation, by any person who is deemed to be 'a person aggrieved' by that decision. In my opinion, the Land Court in such a situation would not be bound by the decision in Rogers, but would be unlikely to exclude from consideration the reasons for that decision. .... it is clear that Mr Dawson's fears as to incorrect levels having been adopted in the Rogers case and potentially influencing the future level of the structure, have no substance. His fears were perfectly understandable however based on the incorrect but somewhat crucial information transposed to the actual licence on which he relied. His reasons for constructing the works were clearly not selfish. He believed the riverine environment had been enhanced. However he was concerned to create a safe water activity facility in the wider public interest, and particularly for supervised district children, and youth generally. No doubt issues such as safety and the wider community interest will be matters which are capable of full consideration in any future licence application. In summary however, while I am satisfied that Mr Dawson has some valid grievances, ....." [19] It appears to me that the purpose of the inclusion of this quotation is to provide some justification for the applicant seeking the amendment to his licence by the increase of the weir height - and the appeal when that application was refused. -- 6 of 9 -- 7 [20] What the learned Member said on that occasion is not exceptional, though must be confined to the facts of that case. The case was concerned with what might be described as a clerical error. The comments of the Court cannot be taken to authorise an application for a licence or a licence amendment being made in all possible circumstances, particularly following what appears to have been a successful mediation. That mediation had not taken place at the time those reasons were published. Nor do I understand the reference to "valid grievances" being relevant to any complaint that the applicant might have raised before me. Indeed, I do not fully understand what the learned Member might have had in mind when he used those words. Certainly they do not bind me. [21] The applicant referred me to Bowden v The Valuer-General (1980-81) 7 QLCR 138 where at 146 the Land Appeal Court said: "We think, in dealing with questions of costs, that it is an important consideration that there be ease of access to the Land Court and the Land Appeal Court." [22] At 147 this broad statement appears to be qualified: "Easy access to the Land Court to air grievances and have valuations reviewed is, as we have already stressed most desirable in revenue cases, and such access should be available without fear of costs being awarded to either party except in special cases. This Court, in Appeal against failure of Land Court to award costs - Townsville City Council v Moyses and Morris etc. (1979) 6 Q.L.C.R. 271 at p. 273 said 'The general rule, then, is that costs are in the discretion of the Court, but of course the discretion must be exercised judicially, that is by reference to relevant considerations.' These cases were resumption matters. One such relevant consideration, in our opinion, in valuation appeals would be ease of access to the reviewing tribunal." [23] Notwithstanding that qualification, the proposition that access to the Court should be available without fear of costs being awarded except in special cases, was held to extend to appeals under the Water Resources Act in Emerson v Chief Executive, Primary Industries Corporation (unreported 22 March 1996); Fitzgerald v Chief Executive, Primary Industries Corporation (31 March 1994) and in Gray v Chief Executive, Primary Industries Corporation (unreported 19 September 1997). Each of those decisions was based not on the proposition that the Court concerned was bound by what was said in Bowden's case, but that what the Land Appeal Court said ought to be applied in any event. [24] In Leake v Chief Executive, Department of Natural Resources (1996) 16 QLCR 485 the learned Member said at 534 that he did not think that the power to award costs should be -- 7 of 9 -- 8 exercised only in special cases but, nevertheless, considered himself bound by what was said in Bowden. [25] I understand that what the Land Appeal Court said in Bowden at 147 was concerned only with appeals arising under the provisions of the Valuation of Land Act 1944 and not with the exercise of the power to award costs, generally. That understanding can be easily demonstrated. In Yalgan v Council of the Shire of Albert (1997-98) 17 QLCR 401 the Land Appeal Court said at 407: "Where compensation is awarded to one who had already been given, by statute, the right to receive it, it is just to say that the claimant ought, in the absence of special circumstances, to receive his reasonable costs of obtaining the compensation that is, ex hypothesi, his due." [26] The Land Appeal Court placed reliance there on Minister for the Environment v Florence (1980-81) 45 LGRA 127 and Moyses. [27] Whilst access to the Land Court in a matter such as the present should not be inhibited by fear of an order for costs, this does not mean that a party who has submitted himself to a Court administered mediation should be allowed the same sort of access to the Court as one who comes to the Court with clean hands. [28] Notwithstanding my view that the requirement for special reasons to exist before a costs order is made in a case such as the present is not imposed by the decision of the Land Appeal Court in Bowden, it is a requirement that the present case satisfies. I have referred to the mediation point above which, by itself, would constitute a special reason in my view for an award of costs against the applicant. There are additional special factors. First, is the fact that the applicant placed substantial reliance in its case on the proposition that any environmental impact from the raising of the weir as applied for would be insignificant without producing an expert witness to provide evidence in support of that contention. [29] Second, was the reliance placed by the applicant on grounds of appeal that were not pertinent to the outcome he sought. [30] Third, is what I said in my reasons at para [40]: "[40] The applicant's documentary evidence was replete with vague and repetitive affidavits and exhibits thereto, photographs that are undated; documents that are annotated apparently by Mr Dawson (to what purpose I do not know); videos which were largely not supported by sworn evidence as to the relevance of images depicted in them; and letters from experts whose statements of opinion were highly qualified by the assumptions made and whose opinions were not presented in the manner of expert reasoning being applied to admissible evidence. Little attempt was made by the applicant to -- 8 of 9 -- 9 help me find my way through this material such that it became relevant to the appeal." [31] The applicant also placed reliance on Vanhoff Pty Ltd v Commissioner of Main Roads (unreported 11 February 1992). I have studied that decision in which the Court decided not to award costs against a claimant in a compensation matter. I can find no relevance in that decision to the present case. [32] Now the primary basis for my decision to dismiss the appeal was concerned with the structural integrity of the weir and the safety of the swimming pool. Those were matters raised before me by the respondent Chief Executive. They were not, however, matters included in a "Statement of Reasons" provided to the applicant in a letter from the Chief Executive dated 26 April 2001. Had they been, the applicant may have adduced evidence to meet those concerns. On the basis of those concerns, he may even have elected to not pursue the appeal, however I entertain doubt as to the prospects of that outcome. Mr Dawson gave me the impression of being a man on a mission and with a particular desire to show that Mr Rogers told lies about a riffle which became relevant in the first appeal in this series. [33] I do not think, however, that the respondent is without responsibility in causing the appeal to be prosecuted on the basis that it was. The level of responsibility is not easily expressed in mathematical terms, however it is a factor that should lead to a reduction in the costs order I intend to make. In deciding on that reduction I also keep in mind the general proposition that this Court should be restrained in making an order for costs in what is essentially an administrative appeal. [34] I order that the applicant pay to the respondent 50% of the costs of and incidental to the hearing and determination of the appeal. The amount of such costs shall on application of either party be decided by the appropriate assessing officer of the Supreme Court under the scale of costs prescribed by law for proceedings in the Supreme Court. RP SCOTT MEMBER OF THE LAND COURT -- 9 of 9 --