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LAND APPEAL COURT OF QUEENSLAND
Western Downs Regional Council v Geldard (No 2)  QLAC 2
Western Downs Regional Council
Roger John Geldard
Land Court No LGR077-18
Land Appeal Court of Queensland
Application for costs
Land Court of Queensland
8 May 2020
Submissions closed 20 March 2020
WA Isdale, Member of the Land Court
PG Stilgoe OAM, Member of the Land Court
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the appeal was allowed by the Land Appeal Court – where the appellant was a ratepayer-funded council – where the costs below were the subject of consent orders – where the question for the Land Appeal Court to decide was a straightforward matter of statutory interpretation – whether costs should follow the event in the Land Appeal Court – whether the respondent should pay the appellant’s costs in the court below notwithstanding that costs in that court were the subject of consent orders
Land Court Act 2000 s 34
Local Government Regulation 2012
Ipswich City Council v BWP Management Ltd & Anor (No 2)  QLAC 2, cited
Moreton Bay Regional Council v Mekpine Pty Ltd & Anor (No 2)  QLAC 5, cited
Northern Territory v Sangare (2019) 265 CLR 164, cited
- On 13 March 2020 this Court allowed an appeal by the Western Downs Regional Council against the Land Court’s decision to categorise the respondent’s land as rural (category 3/16) rather than Petroleum Other (>400 ha) (category 4/31).
- The appellant has applied for an order that the respondent pay its costs of and incidental to this appeal. The appellant also submits that the respondent should pay its costs of and incidental to the hearing below, even though the costs of the hearing below were the subject of a consent order that the present appellant pay the respondent’s costs.
- The appellant submits that it squarely raised the central issue in dispute between the parties as early as 2 April 2018 when, in its Statement of Facts, Matters and Contentions in Response, it stated “the particular use of the subject land by the [the respondent] personally during the relevant period does not affect the matters of fact asserted in the preceding subparagraphs”. The appellant submits that, in his Statement of Facts, Matters and Contentions in reply filed on 20 April 2018, the respondent admitted that the land was being used in a way which fell within category 4/31.
- The appellant submits that this matter did not involve a difficult or unusual construction exercise, or any novel question of law. It submits that the issue was ultimately determined “giving a practical, sensible, broad and fair reading to the appellant’s revenue statement and rating categories in the context of orthodox principles of statutory interpretation”. It submits that this proceeding is not public interest litigation and the supposed “ambiguity” in the revenue statement was roundly rejected by this Court.
- The appellant submits that a party related to the respondent conducts a commercial activity on the subject land and the respondent had a commercial interest in pursuing the appeal. If the respondent had been successful, his rating liability would have been significantly lower.
- Finally, the appellant points out that it is a public authority largely funded by ratepayers. In the absence of a cost order in its favour, the ratepayers for the whole local government area will bear the burden of its costs of this proceeding which was, largely, a private proceeding to pursue a commercial aim. It says that the appeal was necessary to correct an erroneous decision conceived and urged by the respondent.
- The respondent submits that there should be no order as to costs of this appeal. He says that, in exercising the discretion as to costs, the Court may scrutinise the conduct of the parties, which means that the exercise of the discretion must take into account the conduct of all parties and any other relevant factor.
- The respondent submits that his conduct in appealing the rating categorisation was arguable because the manner of categorisation was uncertain. He drew the Court’s attention to the appellant’s “policy” document of December 2017 which noted the potential for uncertainty:
“Council categorises and rates all rateable properties in the Western Downs region. A transfer or sale of a property will not, of itself, result in a change in category.
However there is the potential for uncertainty around the characterisation of properties currently characterised as either 430 or 431 and subsequently sold or transferred. This Policy seeks to clarify this uncertainty.
In clarifying this uncertainty, this Policy provides the potential owners of these properties a greater understanding of issues they need to consider in negotiating the purchase or transfer of the property. This may be through the sales contract and/or through compensation agreements.”
- The respondent also submits that the appellant stated, in effect, that his position was unique having regard to the prior gas company ownership. He refers to a letter from the respondent dated 4 January 2018, which stated:
“Council is very aware that many properties with similar gas infrastructure are rated 3/16 (Rural). The difference is that these parties have never been owned by coal seam gas companies. They have never been rated as anything other than 3/16 (Rural).”
- The respondent notes that the appellant has not explained why a neighbouring property with the same use attributes and same history of ownership by a gas company is not also rated 4/31. In addition, the respondent referred to the absurd situations which may result from a strict application of both rating categories 4/30 and 4/31.
- The respondent submits that the appellant now has a political choice: to maintain the relevant categories in their present form with greatly increased rates for rural landholders, or to alter the drafting so that people in the respondent’s position can maintain a rural rating category. The respondent says that he ought not bear the costs of highlighting this anomaly in the appellant’s revenue statement.
- Section 34 (1) of the Land Court Act 2000 provides that the Court may order costs as it considers appropriate, subject to provisions to the contrary in any enabling Act. The Local Government Regulation 2012, which gives the Land Court the power to decide the appeal, is silent about the disposition of the costs of the appeal. Therefore, the question of costs is to be determined under the Land Court Act 2000.
- There is no doubt that this Court has the power to award costs for an appeal as it considers appropriate and that power includes a power to award costs of the original proceeding.
- There was no matter of principle to be determined in this appeal, nor was there any real ambiguity in the wording of the rating categories, despite that view being articulated in the appellant’s correspondence.
- The issue in this case was simply one of statutory interpretation. The fact that another property in a similar situation was under a different rating regime cannot be determinative of that question of statutory interpretation.
- The fact that the appellant is funded by its ratepayers should not be a consideration in the exercise of our discretion.
- Here, the respondent’s challenge had commercial advantages for him. The appellant was put to expense at the respondent’s behest. There is no reason why the usual rule – that costs should follow the event – should not apply. As this Court has previously observed:
“…although the discretion to award costs is unfettered, the rule that costs follow the event may inform the exercise of the discretion granted under s 34(1), ‘as there is justice in that approach. It protects those put to unnecessary and substantial expense at the behest of others.’” (Citations omitted.)
- The consent order for costs in the decision below was, no doubt, a matter of expediency between the parties. It would have been better if the parties had simply asked the Court to make that order, not by consent, but without serious opposition by the appellant. However, the parties’ agreement was based on an erroneous finding by the Court.
- As that finding has now been corrected on appeal, there is no good reason why the appellant should not also receive a costs order in its favour in respect of the proceeding below. The order of 12 April 2019, that the respondent (Council) pay the appellant’s (Geldard’s) costs of the appeal assessed on a standard basis, should be set aside. Instead, the respondent (Geldard) should pay the appellant’s (Council’s) costs of the appeal below assessed on the standard basis.
- The respondent pay the appellant’s costs of and incidental to this appeal on the standard basis as agreed or assessed.
- The orders of the Land Court dated 12 April 2019 that the appellant pay the respondent’s costs of the appeal below be set aside.
- The respondent pay the appellant’s costs of and incidental to the appeal below on the standard basis as agreed or assessed.
MEMBER OF THE LAND COURT
PG STILGOE OAM
MEMBER OF THE LAND COURT
- Published Case Name:
Western Downs Regional Council v Roger John Geldard (No 2)
- Shortened Case Name:
Western Downs Regional Council v Geldard (No 2)
 QLAC 2
Boddice J, Member Isdale, Member Stilgoe
08 May 2020