Barns v Director-General, Department of Transport [1997] QLAC 128 (1997-1998) 18 QLCR 133

IN THE LAND APPEAL COURT BRISBANE Nos. A93-55, A93-56 BETWEEN: JAMES THOMAS BARNS AND LYNETTE JOY BARNS (Claimants) Appellants AND: DIRECTOR-GENERAL, DEPARTMENT OF TRANSPORT (Respondent) Respondent REASONS FOR JUDGMENT ON COSTS - THE COURT Delivered the Second day of September 1997. On 15th August, the Court allowed the claimants' appeal, and gave each party a week to present written submissions on costs. This decision is given on those submissions. The appellants submitted that they should have their costs, both in this Court and in the Land Court. The respondent submitted that there should be no order for costs in either court, and alternatively, that any order in the appellants' favour in this Court should be limited in amount. Costs in the Land Appeal Court This Court has an unfettered discretion as to the costs of and incidental to an appeal before it1. An unfettered discretion is not an unprincipled one, and on ordinary principles, costs in circumstances such as these would follow the event. The general rule that costs will usually follow the event is one which is deeply embedded in our law. Although it has attracted some criticism in recent years, there was no attempt by the legislature to modify it when the practice of this Court was given attention in the Land Act 1994. It is a general rule which prima facie should be applied in this case. 1 Land Act 1962, s.44(16). [1997] QLAC 128 -- 1 of 5 -- The respondent submitted that the rule is not always applied by Courts exercising jurisdiction in land compensation matters. He cited Moyses v Townsville City Council 2, Theo v Brisbane City Council 3, Minister for the Environment v Florence 4 and Banno v Commonwealth of Australia 5. Those cases show that in compensation cases, the Land Court must take into account the fact that an appeal to that court is the only way in which a dispossessed owner can obtain an independent determination of the value of the land taken. As Wilcox J said in Banno: "The acquisition left the applicants in the position of either accepting the Commonwealth's assessment of the proper compensation or of having the Court rule on its adequacy. Perhaps people in that position should be allowed access to the Court, to present an arguable and well organised case, without being deterred by the prospect of being ordered to pay the Commonwealth's costs if their case proves unpersuasive. I distinguish the case of resumees who pursue a vexatious, dishonest or grossly exaggerated claim or present their case in such a way as to impose unnecessary burdens on the Commonwealth or the Court."6 Those cases justify some flexibility in the application of the general rule against a dispossessed owner. They contain no support for a departure from the rule as against a resuming authority in circumstances where the rule would ordinarily be applied. 2 (1979) 6 QLCR 271. 3 (1990) 13 QLCR 160 at p 167. 4 (1981) 45 LGRA 127 at pp 149-150. 5 (1993) 81 LGERA 34. 6 Ibid at p 53. In support of his submission, the respondent pointed to a number of issues on which the appellant had no success. It is unnecessary to set them out; they are described in the reasons for judgment of Messrs Trickett and Wall QC, delivered on 15th August. They took very little of the time which this appeal occupied and we do not think they added appreciably to the cost of the appeal. The respondent also argued that not making an order against him was justified because of the complexity of and lack of persuasive precedent on the issues of stock losses and dam -- 2 of 5 -- rectification, whether under the heading of disturbance or of injurious affection. With great respect, those considerations point in favour of the appellants. It was in the public interest and that of the respondent to have the law clarified. Its obscurity might have been a reason not to make an award against the appellants even if they had been wholly unsuccessful; but it cannot assist the respondent. The appellants have succeeded in having compensation increased from about $181,000 to over $434,000. They could do this only by appealing to this Court. It is true that they sought compensation in excess of $1.5 million. However, the appeal was not vexatious, and most of the time was devoted to issues on which the appellants succeeded. There is no reasonable basis for apportioning costs. The respondent should pay the appellants' costs in this Court. Costs in the Land Court Although the notice of appeal does not in terms appeal from the order for costs made against the appellants by the Land Court7, the respondent has very properly not placed any reliance on that fact. The appellants submitted that this Court has an unfettered discretion with respect to costs incurred in the Land Court, a discretion which, they submitted, should be exercised in their favour. The respondent submitted that this Court was empowered only to make such order as (having regard to the outcome of the appeal) should have been made at first instance. He submitted in the alternative that our discretion in respect of those costs would be properly exercised only by making such an order as could have been made by the Land Court if the decision on appeal had been given at first instance. On either basis, he submitted, the Land Court would have been bound by s. 27(2) of the Acquisition of Land Act 1967, and this would have prevented any award of costs in favour of the appellants by that Court, even if it had reached the same decision as the Land Appeal Court. The respondent conceded that he could no longer support any order in his favour for costs in the Land Court. 7 That Court ordered the appellants to pay 75% of the respondent's costs, judgment being delivered on 15th June 1995, some six months after judgment was given. The notice of appeal to this Court had long since been filed by then. -- 3 of 5 -- The power of this Court to deal with costs in the Land Court is governed by s. 44(16) of the Land Act 1962. That section provides: "(16) The Land Appeal Court may make such order as it thinks fit as to the costs of and incidental to an appeal . . . and may rescind, confirm or modify any order as to costs made by the Land Court." Until 19818, the Court's power was limited to making "such order as it thinks fit as to the costs of any proceeding heard and determined by it." This provision was held to entitle the Land Appeal Court to examine any decision of the Land Court in relation to its jurisdiction to grant costs, apart from any other question before the former Court9. The Court has often set aside a judgment of the Land Court on the question of costs and made an order for the appellant's costs in that Court. The words in the present section "rescind, confirm or modify" do not narrow the power10, and the respondent did not argue otherwise. The respondent submitted that in exercising the power, the Court was obliged to give effect to this provision: "27.(1) Subject to this section, the costs of and incidental to the hearing and determination by the Land Court of a claim for compensation under this Act shall be in the discretion of that Court. (2) If the amount of compensation as determined is the amount finally claimed by the claimant in the proceedings or is nearer to that amount than to the amount of the valuation finally put in evidence by the constructing authority, costs (if any) shall be awarded to the claimant, otherwise costs (if any) shall be awarded to the constructing authority. (3) Subsection (2) does not apply to any appeal in respect of the decision of the Land Court or to costs awarded pursuant to section 24(3) or section 25(3)."11 8See Land Act and Another Act Amendment Act 1981, s. 11(c). 9Koorong Ridge Pty Ltd v Commissioner of Main Roads (1967) 34 QCLLR 77 at p 81. 10Queensland Railways v Somerville Funerals Pty Ltd, unreported, no A91-55, Land Appeal Court, 28th April 1995. 11Acquisition of Land Act 1967, s. 27. -- 4 of 5 -- Counsel did not direct our attention to any particular words in s. 44(16) of the Land Act or s. 27 of the Acquisition of Land Act which might limit the power of this Court in the sense for which he contended, and we can see none which do so, either expressly or by necessary implication. On the other hand, there is in our view great force in his submission that the discretion should be exercised so as to make such an order as to costs as would properly have been made by the Land Court had the decision on appeal been given at first instance. In our judgment, s. 27(3) of the Acquisition of Land Act 1967 is intended to ensure that s. 27(2) is not applied in respect of costs of an appeal (whether to this Court or to the Court of Appeal). It is not intended to signal that s. 27(2) is irrelevant when this Court is replacing the order for costs below. Opinions may differ as to the justice of the policy embodied in s. 27(2); but it is the function of the courts to give proper effect to it. That cannot be done if, by the simple process of appealing against an order made (or not made) in the Land Court, the whole question of costs in that Court becomes at large. There are a number of factors in the present case which would incline us to make an order in favour of the appellants for at least some of their costs below, if the question were uninfluenced by s. 27(2). However, they are not of an extraordinary character. They relate simply to the relative success which the parties have had on the various issues and the amount of time devoted to those issues at first instance, and the failure of the respondent to ensure that the Land Court was fully informed of matters within the knowledge of his servants or agents. When s. 27(2) is taken into account, the result must be different. The amount of compensation finally determined by this Court ($434,000) is much nearer to the amount finally put into evidence in the valuation the respondent ($95,000) than the amount finally claimed by the appellants ($1,525,116). The factors in the appellants' favour are outweighed by this consideration. The policy evident in the Act will seldom permit a different outcome. Orders The respondent is to pay the appellants' costs of and incidental to the appeal to this Court (including reserved costs if any), such costs to be ascertained and fixed by the taxing officer of the Supreme Court at Brisbane according to the scale of costs prescribed in respect of proceedings in the Supreme Court. The orders of the Land Court made herein on 15th June 1995 are rescinded. -- 5 of 5 --