Emerson v Chief Executive, Primary Industries Corporation [1996] QLC 28

LAND COURT BRISBANE 22 MARCH 1996 Re: Application for Costs - Appeal against a decision to refuse an application for a Waterworks Licence M.L. & I.G. Emerson v. Chief Executive, Primary Industries Corporation DECISION ON APPLICATION FOR COSTS The appeal by Mr and Mrs Emerson against the decision of the chief executive was successful. Counsel for the appellants then made application for their costs of the appeal. A written submission was invited and received by the Court together with a response from the respondent and then a reply thereto. There is no dispute that this Court has power in this matter to make an order as to costs. Section 41(9) of the Land Act 1962 (which continues to have effect under s.521(1) of the Land Act 1994) provides: "The Court may make such order as it thinks fit as to the costs of or incidental to any matter that it has jurisdiction to hear and determine including, without limiting the generality of this subsection, ... allowances to witnesses attending for the purpose of giving evidence at the hearing ... " It is submitted on behalf of the appellants that in this matter the Court should follow the ordinary rule in a trial or in an Appeal that costs are to follow the event, and "although costs orders may not be commonly made in the Land Court" it would be "appropriate to have regard to other legislation dealing with challenges to the decisions of an administrative character made under an enactment, whether or not in the exercise of a discretion" with the Judicial Review Act 1991 s.4(a) and s.50(a) being cited. The Waterworks Licence application was refused by the chief executive on the grounds that there was insufficient water to supply the irrigation requirement of the applicants, maintain existing licensees' entitlements and preserve the physical integrity of the Johnstone River. The calculations provided to the Court as the basis for that conclusion were not proved wrong. The appeal was decided in favour of the appellants on an alternative interpretation of the stated departmental water management strategy, and the conclusion that "the Department's approach to the available volume of water" seemed to have been overly cautious in favour of the in-stream requirement. The benefit of doubt that sufficient water was in fact available, was stated to have been resolved in favour of the appellants, due to the respondent's inability to convince the Court that the methodology of assessment of insufficiency of supply had been reasonable - in terms of the stated policy. [1996] QLC 28 -- 1 of 3 -- 2 The submission of the respondent particularly with regard to the ordinary rule being that costs follow the event, made reference to the extensive coverage of the principles involved in the exercise of the Court's discretionary powers, by the Land Appeal Court in Bowden v. The Valuer-General (1980-81) 7 QLCR 138. In that matter the Land Appeal Court said at pp.145, 146 - " The argument of counsel for the appellant included references to the `ordinary rule' that costs follow the event. That the rule is `ordinary' in the Supreme Court is beyond argument. Success in litigation carries with it an entitlement to costs unless the Court `for good cause otherwise orders' (Order 91, Rule 1), or `otherwise orders' (Order 91, Rule 3). The principle contained in the Rules of Court has been extended to orders made by arbitrators: see D. Phillips Constructions (Vic.) Pty Ltd v. R.F. Mullavey and J.F. Adams (1980) V.R. 171, and the cases there cited. 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. Nor are considerations relevant to awards of costs in disputes determined by arbitrators necessarily relevant to awards of costs in proceedings between governmental instrumentalities and citizens." Then at p.147: " This Court in Appeals 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." In reply, counsel for the appellants correctly drew attention to the fact that the Bowden case related to an appeal under the Valuation of Land Act. It was submitted that the approach of the Court there was "one which was affected by its perception of the kind of case before the Court and that the subject case was a proper case for the Court to award costs as was contemplated by the Court in Bowden. Also at p.146: "That is not to say that, in a proper case, the Land Court and the Land Appeal Court will not award costs against either a citizen or an authority subject to the provisions of the statute which governs the matter." Also in Bowden at p.147, it is observed that the Court expressed the following view: " 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." The Land Appeal Court recognised the desirability of ease of access in valuation matters associated with revenue cases. There was, in my opinion, no inference that such ease of access -- 2 of 3 -- 3 should not extent further. It is also desirable in appeals under the Water Resources Act, and such access should also be available without fear of costs being awarded to either party, except in special cases. It is not unusual in these matters for appellants to be left in the position of critically analysing the technical results of the investigation by the chief executive and the application of departmental policies - in the absence of substantive rebuttal evidence. In effect that is as I saw the outcome of this particular case. It would be seen as unfortunate then that an unsuccessful appellant without the resources of the Department but having not acted in a vexatious or frivolous manner, should be faced with the prospect of "the ordinary rule that costs follow the event". In this case, the appellants were aggrieved by a decision of the chief executive, exercised their right of appeal and were successful. The appeal was not determined on the basis of any substantive evidence which conflicted with that of the Department, but on an alternative interpretation of the Department's own water management strategy. Benefit of doubt was resolved in favour of the appellants and that benefit would be seen to be of real significance - in terms of the appellants' evidence, the difference between financial distress or a potentially viable albeit pioneering primary production pursuit. While there is a perception of lack of constructive consultation relative to the Department's policy as it affected the practical needs of the appellants, the refusal to grant the licence was, in my opinion, the result of a genuine even if over-cautious attempt to effectively manage a specific and important water resource. In the exercise of the discretion provided to me, it is my considered opinion that this case is one where the parties should bear their own costs. I therefore make no order as to costs. RE WENCK MEMBER OF THE LAND COURT -- 3 of 3 --