Barns v Director-General, Department of Transport [1995] QLC 46

LAND COURT BRISBANE 15 June 1995 Re: Application for Costs - Compensation determination. A93-55 and 56. (Property at Coolum) J.T. and L.J. Barns v. Director-General, Department of Transport D E C I S I O N Subsequent to judgment being published in the above matter, the respondent Director-General made application for an order for costs. A written submission and response and reply thereto have been received by the Court. The amount of compensation finally claimed, but exclusive of legal and valuation fees, was $1,525,116. The "real estate" component of the claim, on a before and after resumption basis, was $375,000, the balance being for "severance and disturbance" items. The amount of the valuation put in evidence by the constructing authority was $95,000 - limited to the "real estate" component. Compensation, exclusive of legal and valuation fees, the quantum of which have been agreed between the parties, was determined in the amount of $175,000, also limited to the "real estate" component. In terms of s.27 of the Acquisition of Land Act 1967, costs are in the discretion of the Court but may be awarded only to the party whose claim or valuation, as the case may be, is nearer to the amount of compensation determined. In this matter costs, if any, may be awarded only to the respondent Director-General. In Moyse and Morris and Others v. The Council of the City of Townsville (1979) 6 QLCR 271, being appeals against the failure of the Land Court to award costs, the Land Appeal Court said at p.273, after referring to s.27(1) and (2): "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. Subject to that, the only restriction on the manner or exercise of the Land Court's discretion is that contained in sub-section (2) of Section 27.... "; then at p.274, when declining an invitation to lay down rules or principles as to the way in which the Land Court's discretion should be exercised in certain circumstances: "The public interest, it would seem to us, is amply protected by the [1995] QLC 46 -- 1 of 4 -- 2 scheme of the legislation as a whole, by the fact that the discretion as to costs is one which is to be exercised judicially, and by the restrictions on the exercise of that discretion which is imposed by subsection 2 of section 27. " .... "Second, where the Court is considering whether it should award costs to an authority, it could be wrong to have regard merely to the amounts of the claim and of the award and of the value put in evidence by the Authority. We would think that usually it would be more relevant to enquire whether the conduct of the claimant, including his making of an exorbitant claim, if he has made one, has been such as to force the authority, unreasonably and unnecessarily, into litigation. " The claimants in this matter sustained substantial stock losses as a result of algal blooms in a stock dam on land adjacent to the resumed area. Much of the hearing involved that aspect of the claim. First there was an objection by the respondent against the Court determining compensation for stock losses, even if a causal link was able to be established between the algal blooms and the construction authority's activities. It was submitted that jurisdiction for such determination did not lie with the Court. Then, when the Court ruled against the respondent's submission, the burden of proving the causal link rested with the claimant. The burden of proof was not carried. In this application, it is the submission of the respondent that, with regard to the link between the algal blooms and the construction activities, the "allegation was made rashly and without due consideration" ... The claimants' submission was that this aspect of the claim failed only because the Court acted on the evidence of one witness called by the respondent, being evidence the details of which had not previously been available to the claimants. The evidence related to the nature and timing of dewatering and construction activities on the resumed land. This evidence of fact was preferred to the assumptions and theories associated with the basis of the claim of the existence of causal link. In their submissions, both the claimants and the constructing authority referred to the comments of Wells J. in Minister for the Environment v. Florence (1980-81) 45 LGRA 127, when His Honour said at pp.149-150: "Compulsory acquisition cases differ of course from ordinary claims dealt with in the general jurisdiction in one significant respect: the claimant, unlike the ordinary plaintiff, had no choice whether to make a claim or not; the mere acquisition by compulsory process gave him, by virtue of s.18 of the Act, a claim to compensation which he could hardly be -- 2 of 4 -- 3 expected to renounce. Upon an ordinary claim in the general jurisdiction it is, generally speaking, obvious who has won and who has lost, and correspondingly clear why costs usually follow the event. Upon a claim for compensation for land compulsorily acquired, it is not, generally speaking, appropriate to speak of one party as having won; compensation is awarded to one who had already been given, by statute, the right to receive it. It is therefore as just to say of the latter sort of case 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, as it is to say of the former sort of case that prima facie costs follow the event in favour of the party who has won. But costs are, as always, discretionary, and no hard and fast rule will ever be allowed to occupy part of an area controlled by a discretion, however predictable the result of its exercise may be in certain sorts of cases. ".... It is the claimants' submission here that, in the absence of special circumstances, they should ordinarily have been entitled to receive their reasonable costs of obtaining their compensation, which was an amount in excess of that contained in the constructing authority's valuation. The special circumstances here were recognised as being the limitation imposed by s.27(2) of the Act. Had the claim been confined to the "real estate" issue, this submission would have been seen to have merit. However, in the circumstances of the component of the claims relating to "severance and disturbance" items, the generally inappropriate consideration of whether one party had won or lost, is, to the contrary, seen to be an appropriate consideration here. On the evidence placed before the Court, I am not convinced that, had the issues been narrowed to the "real estate" loss, a hearing would have been avoided. Had that been the case, in the result, I would not have awarded costs to the respondent. However, when the overall claim is considered together with the reasons given for the determination of compensation, I have concluded that the constructing authority is entitled to receive part of its costs. Rather than be particular as to the time involved in the various issues and arguments raised at the hearing, I have decided that the respondent should be awarded 75% of its costs. Accordingly, in the exercise of the Court's discretionary powers, I order that the claimants pay 75% of the constructing authority's costs of and incidental to the hearing and determination of the claim for compensation. The amount of such costs shall be ascertained and fixed by the taxing officer of the Supreme Court pursuant to s.41(9) of the Land Act 1962. -- 3 of 4 -- 4 (RE Wenck) Member of the Land Court -- 4 of 4 --