Dawson v Chief Executive, Department of Natural Resources and Mines [2002] QLC 82

LAND COURT OF QUEENSLAND CITATION: AW Dawson v Chief Executive, Department of Natural Resources and Mines [2002] QLC 82 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 by the respondent under the Land Court Act 2000 DELIVERED ON: 10 October 2002 DELIVERED AT: Brisbane HEARD AT: Written submissions MEMBER: Mrs CAC MacDonald ORDER: It is ordered that the appellant pay to the respondent costs of and incidental to this appeal fixed at $1,000. CATCHWORDS: Water Resources Act 1989 – Application for costs – Land Court standard practice applied – no costs except in special cases – appeal struck out as no reasonable cause of action disclosed – “special” case made out – partial costs awarded. [1] The originating proceedings in this matter were instituted by the appellant, Mr AW Dawson on 7 June 2001 as an appeal against certain of the terms and conditions in a licence issued to him under the Water Resources Act 1989 by the Chief Executive, Department of Natural Resources and Mines. [2] On 3 January 2002, the respondent applied to have the conduct of the appeal varied on the grounds that: -- 1 of 5 -- 2 1. The appeal is frivolous and vexatious and an abuse of process and should be struck out. 2. The appeal discloses no substantive case on which the jurisdiction of the court could or should be moved. 3. The respondent is prejudiced in the appeal by virtue of the paucity of and lack of clarity of the grounds of appeal. 4. The respondent is therefore not in a position to respond to previous directions nor to provide any meaningful response to the appeal, since the true nature of the case is not understood. [3] On 4 January 2002 the appellant faxed a document to the Registry of the Court described as an Amended Notice of Appeal. That document was subsequently treated as an application for leave to amend the Notice of Appeal. [5] As a result of certain directions issued by me, a hearing was conducted in Atherton on 21 January 2002, limited to two matters: 1. The appellant’s application for leave to amend the Notice of Appeal; and 2. The respondent’s application that the Notice of Appeal be struck out. [6] In a written decision handed down on 10 April 2002, I refused the appellant’s application for leave to amend the Notice of Appeal because the effect of s.51(5) of the Water Resources Act 1989 is that the Court has no power, in a matter of this nature, to allow a Notice of Appeal to be amended. I also held that the Notice of Appeal should be struck out because no reasonable grounds of appeal were disclosed. Having come to that conclusion, I held that it was not necessary or appropriate to decide whether the Notice of Appeal was frivolous and vexatious or an abuse of process. [7] At the time of handing down my decision, I granted the respondent leave to file and serve any application for costs within 21 days from the date of judgment, and I also directed that any reply by the respondent to an application for costs should be filed and served within 21 days from the date of receipt of such application. [8] The respondent subsequently filed an application for costs within the time specified. The costs sought are quantified at $10,950 which, the respondent submits, is a fair and reasonable amount. The costs are calculated on an indemnity basis. This sum does not include the respondent’s Counsel’s time and costs of travelling to Atherton for the hearing. No reply to that application has been received from the appellant. [9] There is no provision in the Water Resources Act 1989 dealing expressly with the award of costs in a case of this nature. Section 51, which is the section pursuant to which the appeal was lodged, provides that: -- 2 of 5 -- 3 “(8) So far as they may be made applicable, the rules and practice of the Land Court apply to an appeal under this section and the court may, where it considers it necessary to do so in a particular case, give directions as to the procedure, practice and other matters and things with respect to the appeal.” It is considered that this provision enables the Court’s practice as to the award of costs to be applied to appeals lodged pursuant to s.51. [10] The Land Court’s power to award costs is to be found in s.34 of the Land Court Act 2000, which provides that: “(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. … “ [11] Section 34(1) gives the Court a discretion as to whether to award costs. In Townsville City Council v Moyses and Morris (1979) 6 QLCR 271 at 273, the Land Appeal Court said that: “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.” [12] In Bowden v The Valuer-General (1980-81) 7 QLCR 137 at 146, the Land Appeal Court rejected a submission that the ordinary rule applied in the Supreme Court, that costs should follow the event, should be applied in the Land Court, saying: “However, the approach of the Supreme Court to orders for costs (as indicated by its Rules) cannot, with respect, govern the approach of the Land Court or the Land Appeal Court to the exercise of discretion; those Courts derive their respective powers to award costs from the Land Act, and perform a quite different function from that which is performed by the Supreme Court.” The power of the Land Court to award costs is no longer found in the Land Act but in s.34 of the Land Court Act, as set out above. It is considered that the same principles apply under s.34 as were applied under the Land Act 1962. [13] The Court went on to say, in Bowden (at 147), that one relevant consideration that should be taken into account by the Court in exercising its jurisdiction, in valuation appeals, is ease of access to the reviewing tribunal: “Easy access to the Land Court to air grievances and have valuations reviewed is, as we have already stressed, most desirable in revenue cases, -- 3 of 5 -- 4 and such access should be available, without fear of costs being awarded to either party except in special cases.” [14] Although the Land Appeal Court referred specifically to the desirability of maintaining easy access to the Land Court in revenue cases, that approach was extended to appeals under the Water Resources Act, in Emerson v Chief Executive, Primary Industries Corporation (A95-48, Unreported, Land Court, 22 March 1996 at 3) where the learned Member said: “[Ease of access] is also desirable in appeals under the Water Resources Act, and such access should be available without fear of costs being awarded to either party except in special cases.” [15] The same approach was adopted in Fitzgerald v Chief Executive, Primary Industries Corporation, (A93-50, Unreported 31 March 1994 at 3), and in Gray v Chief Executive, Department of Natural Resources (A95-47, Unreported, Land Court, 19 September 1997 at 4). It was doubted, but followed, in Leake v Chief Executive, Department of Natural Resources (1996) 16 QLCR 485 at 534. [16] In each of these cases the Court rejected an application for costs. However that is not to say that this Court will never make an order for costs (see Bowden at 146). In both Bowden (at 147) and Emerson (at 3), the Court indicated that the general desirability of maintaining ease of access to the Land Court would not be applicable in proper or special cases. [17] This is a case where the Notice of Appeal has been struck out because no reasonable cause of action was disclosed. The Notice of Appeal was drafted by the appellant, who is not a lawyer. It was not necessary for the Notice of Appeal to be in legal form, but it should have been sufficiently explicit, in ordinary language, to indicate to the respondent, the reasons why the conditions of the licence were said to be erroneous. It failed to do so. Moreover the appellant is not an inexperienced litigator as he has been agitating issues relating to his water licence before this Court on various occasions since 1994. The appellant had the opportunity to review his position, when he was put on notice, by the respondent’s application to strike out the Notice of Appeal, that there was a fundamental challenge to the validity of the appeal. Nevertheless he persisted with the appeal. The appellant’s conduct, in the circumstances, lacked merit. The result is that the respondent has been put to considerable expense in resisting the appeal. [18] This is, in my opinion, “a proper” or “special” case as referred to in Bowden and Emerson and is one where an award of costs should be made. However, bearing in mind that costs are usually not awarded in respect of appeals under s.51 of the Water Resources Act, I -- 4 of 5 -- 5 have decided that, in balancing the claims of each party, I will not make an order that full indemnity costs be paid. Instead I will order that costs fixed in the sum of $1,000 be paid by the appellant. This is a nominal amount when compared with the amount sought by the respondent, but it indicates to the appellant the serious nature of the proceedings he has instigated and the risks associated with unsuccessful litigation. Order [19] It is ordered that the appellant, Mr AW Dawson, pay to the respondent costs of and incidental to this appeal fixed at $1,000. CAC MACDONALD MEMBER OF THE LAND COURT -- 5 of 5 --