Kelsall v Brisbane City Council
[2010] QLAC 6
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- Unreported Judgment
- Appeal Determined (QCA)
- Kelsall v Brisbane City Council[2010] QLAC 6
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Kelsall v Brisbane City Council[2010] QLAC 6
Kelsall v Brisbane City Council[2010] QLAC 6
LAND APPEAL COURT OF QUEENSLAND
CITATION: | Kelsall and Ors v Brisbane City Council [2010] QLAC 6 |
PARTIES: | Paul Anthony Kelsall and Eunice Ying Teng Kelsall and Fay Marie Kelsall (appellants) v. Brisbane City Council (respondent) |
FILE NO: | LAC006-09 |
DIVISION: | Land Appeal Court of Queensland |
PROCEEDING: | Costs of appeal to the Land Appeal Court |
ORIGINATING COURT: | Land Court of Queensland |
DELIVERED ON: | 4 November 2010 |
DELIVERED AT: | Brisbane |
THE COURT: | Peter Lyons J Mrs CAC MacDonald, President of the Land Court Mr PA Smith, Member of the Land Court |
ORDER: | The appellants pay the respondent’s costs of and incidental to the appeal, including reserved costs. |
CATCHWORDS: | Costs – Appeal – Compulsory Acquisition – Applicationfor stay of proceedings – ss. 34 and 72(1) of the Land Court Act 2000 – determination of costs on an ‘issue’ basis – rules and principles to be balanced – consideration of the merits of the case – consideration of the conduct of the parties and, in particular, the relatively hopeless prospects of the substantive appeal issue. |
APPEARANCES: | Written submissions |
SOLICITORS: | Harding Lawyers for the appellants Brisbane City Council Legal Practice for the respondent |
- [1]On 28 June 2010, this Court handed down its decision dismissing an appeal by Paul Anthony Kelsall, Eunice Ying Teng Kelsall and Fay Marie Kelsall (the appellants) against a decision of the Land Court to refuse an application brought by them that proceedings in the Land Court be stayed. Those proceedings concerned a claim for compensation lodged by the appellants following the resumption of land by the respondent in 2006. The appeal was dismissed, and the respondent then sought an order as to costs.
- [2]The appellants submit that for a proper consideration of this matter, any order as to costs should take into account three aspects of the appeal:
- (1)the outcome of the substantive aspect of the appeal relating to the appellants application for a stay;
- (2)the issue of the appellants’ right of appeal to the Court; and
- (3)the application by the respondent for the admission of new evidence at the appeal.
- [3]The appellants accept that, as regards the first issue, there should be an order that the appellants pay the respondent’s costs to be assessed on the standard basis.
- [4]As regards the second issue relating to the right of appeal to this Court, the appellants contend that there should be no order made as to costs. The appellants have cited no authorities, nor provided any reasoning, in support of their contention.
- [5]With respect to the respondent’s application for the admission of new evidence on the appeal, the appellants contend that they should be awarded costs on the basis that the respondent’s application was refused. Again, the appellants have cited no authorities, nor provided any reasoning, in support of their contention.
- [6]The respondent submits that the appropriate order is that the appellants should be ordered to pay the respondent's costs of and incidental to the appeal, including reserved costs, on the standard basis.
- [7]The respondent contends that this appeal is not one to which there should be any departure from the orthodox awarding of costs in favour of the party successful on the appeal. The respondent specifically submits that this is not an appropriate case to adopt an 'issue by issue' approach as contended for by the appellants. The respondent summarised its submissions as follows:
- practically and reasonably, the respondent had no choice but to defend the appeal or to take the points it did;
- properly analysed there was only one issue in the appeal, namely whether the member’s discretion (to refuse the stay the appellants had sought) miscarried; that issue was lost by the appellants;
- the other so called “issues” were not issues of the type which in some circumstances warrant orders of the kind the appellants seek. They were tangential incidents of the primary appeal (the challenge to the member’s power to grant a stay and the application to admit the order of the District Court and the consent order of the Supreme Court) or matters raised by the Court (the validity of the appeal itself);
- to make an order, of the kind the appellants contend for, with three elements (costs of some “issues” to be paid by the appellants, no order in respect of one and costs of another to be paid by the respondent) would be to render complex that which is not complex and should not be made so; and
- because the justice of the case does not require the order – the appellants make no attempt to articulate any reason why it does. On the contrary, justice is best served by the order contended for by the respondent.
- [8]The relevant legislative provisions to be considered are sections 34(1) and 72(1) of the Land Court Act 2000 (the LC Act).
- [9]Section 34(1) of the LC Act provides, so far as is relevant, that
"34. Costs
- (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.
…"
Section 72(1) provides that s. 34 applies, with necessary changes, to the Land Appeal Court.
- [10]It has been held on many occasions by this Court that the discretion given by s. 34 of the LC Act is complete and that such discretion is not to be fettered by any preconceived rules or principles other than that the discretion is to be exercised judicially.[1]
- [11]
In Bowden v The Valuer-General,[2]a matter relating to the valuation of land under the Valuation of Land Act 1944, the Land Appeal Court said that, in exercising the discretion under s. 34, one relevant consideration to be taken into account is ease of access of parties to the Land Court -"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."
- [12]
"…there may be any number of factors which a court vested with general jurisdiction to award costs might entertain - one such factor is the outcome of the litigation; another might be the overall purpose of the legislation. The Court said that it is entirely in accordance with the proper exercise of the discretion to award costs to give effect to the matters expressed in Bowden, but those observations should not be read as imposing a gloss on the legislation mandating when the discretion ought be exercised or not exercised. Ordinarily costs are not awarded to punish the unsuccessful parties. Costs are intended to compensate the successful party against the expense which he or she has incurred by reason of the legal proceedings."
- [13]We respectfully agree with the observations in PT Limited. The present appeal is a clear example of a case where the successful party should be compensated against the expense which it has incurred by reason of the legal proceedings. In so far as the substantive aspect of the appeal is concerned, the appellants agree. The question which remains is whether the decision on costs should take into account the various “issues” as submitted by the appellants.
- [14]The respondent has referred to a number of authorities counselling caution when it comes to adopting an “issue by issue” approach to the question of costs.[6] It is appropriate to refer in particular to the High Court decision of Sanders v Snell (No 2) where Kirby J made the following observations:[7]
"[14] This court might, in a particular case, make a special order as to costs. It sometimes does so, usually in pursuance of argument advanced at the hearing or reserved for further and separate hearing following the determination of the proceedings. Such an order could reflect a view that a party had wasted the court's time in arguing needless or futile points, or had succeeded on part only of the matters put in issue by the appeal: Wickstead v Brown (1992) 30 NSWLR 1 at 19. Alternatively, a special order might be made on the basis that particular costs should be disallowed, for example, where appeal papers have been needlessly prepared and costs of that kind imprudently incurred.
[15] Usually, however, the orders made by a Full Court are, as here, in perfectly general terms. This is the practice followed by Full Courts in this and other Australian appellate courts …It is not usual for the court to specify that costs will only be payable in respect of particular issues. … The marginal expense of calculating the costs of arguing particular issues, themes, ideas, facts, cases or arguments will ordinarily be outweighed by the inutility of doing so."
- [15]The question of unsuccessful litigants recovering part of their costs on an 'issue' basis was also considered in Emanuel Management Pty Ltd (in liquidation) & Ors v Foster’s Brewing Group Ltd & Ors and Coopers & Lybrand & Ors[8] where Chesterman J made the following observations:
"[83] The plaintiffs seek an order that the defendants should pay their costs 'of the insolvency issue.' …
[85] … The defendant who has restricted the plaintiff's success may have an argument, the strength of which will depend on the circumstances, that it should pay only part of the costs or indeed be paid part of the costs. Where, however, a defendant has been completely successful it would be unusual to require it to pay any part of the plaintiff's costs. There may be exceptional cases where the defendant by its conduct has made it appropriate that it should be deprived of its costs or even pay its opponent's costs, but cases in which a successful defendant has not recovered costs are rare. The general rule is that a successful litigant is entitled to its costs the primary purpose of which is to indemnify the successful party because 'fairness dictates that the unsuccessful party typically bears the liability for the costs of unsuccessful litigation.' Per McHugh J i[n] Oshlack v Richmond River Council (1998) 193 CLR 72 at 97. The cases collected by Einstein J in Mobile Innovations Ltd v Vodafone Pacific Ltd (2003) NSWSC 423 para 4 show that the power to order a successful party to pay costs 'is a course to be taken in unusual cases and with a degree of hesitancy.'
[86] I was referred to a passage in a judgment of Burchett J in Australian Conservation Foundation v Forestry Commissioner Tasmania 81 ALR 166 at 169. The case was one in which the applicant failed but one of the respondents took some points by way of defence which were unsuccessful. The arguments on those points added to the duration and therefore costs of the trial. The unsuccessful applicant sought an apportionment of the costs. It was refused. The judge said (169):
'A party against whom an unsustainable claim is prosecuted is not to be forced, at his peril in respect of costs, to abandon every defence he is not sure of maintaining, and oppose to his adversary only the barrier of one hopeful argument: he is entitled to raise his earthworks at every reasonable point along the path of assault.'
- [16]Without repeating in full the reasons set out in this Court's decision[9] dismissing the appellants' appeal, a number of points should be noted, namely; the argument primarily advanced by the appellants at the appeal was that insufficient weight had been given by the Land Court to the appellants' prospects of success in an action relating to s 17 of the Acquisition of Land Act 1967;[10] the appellants have taken no real action to obtain relief under s 17;[11] the appellants’ prospects of success on a claim based on s. 17 are, at best, doubtful;[12] the appellants somewhat bizarre assertion on appeal that the Land Court member had no jurisdiction to grant a stay of proceedings;[13] and the conduct of the appellants, weighed against the conduct of the respondent which has, from about 2006, taken numerous steps to finalise the matter and maintains a desire for the claim to be finalised.[14]
- [17]In short, the appellants chose to institute an appeal in this court which had little, if any, prospects of success. In those circumstances, and in light of the authorities referred to above, the question perhaps should not be whether the appellants should be spared from paying part of the respondent’s costs, but rather whether it is in the interests of justice that the respondent should bear any of its standard costs of the appeal. As this Court put it in Anson Holdings Pty Ltd v Wallace, costs are intended to compensate the successful party against the expense which he or she has incurred by reason of the legal proceedings.[15] The appellants sought an order for a stay in the first instance. They were unsuccessful. They then brought what was essentially a hopeless appeal. Again, they were unsuccessful.
- [18]Weighing all factors, we consider that the appellants should pay the respondent’s costs of and incidental to the appeal, including reserved costs.
ORDER
The appellants are to pay the respondent’s costs of and incidental to the appeal, including reserved costs.
PETER LYONS J
CAC MacDONALD
PRESIDENT OF THE LAND COURT
PA SMITH
MEMBER OF THE LAND COURT
Footnotes
[1] See, for example, BHP Queensland Coal Investments Pty Ltd v Cherwell Creek Coal Pty Ltd No. 2 [2009] QLAC 0008; Anson Holdings Pty Ltd v Wallace [2010] QLAC 0002; Anson Holdings Pty Ltd v Wallace [2010] QLAC 0004 .
[2] (1980-81) 7 QLCR 138 at 147 .
[3] [2010] QLAC 0004 .
[4] (2007) 28 QLCR 295.
[5] At [7]
[6] Cretazzo v Lombardi (1975) 13 SASR 4 at 16; Roluke Pty Ltd v Lamaro Consultants Pty Ltd [2007] NSWSC 617 at [29]; Mond v Berger [2004] VSC 150 at [54]; Mickelberg v State of Western Australia [2007]WASC 140 at [35]; Australian Prudential Regulation Authority v Holloway [2000] FCA 1245; and Sanders v Snell(No 2) (2000) 174 ALR 53 at 57.
[7] 174 ALR 53 at 57, at [14] and [15].
[8] [2003] QSC 299.
[9] [2010] QLAC 0003.
[10] At [29].
[11] At [42] and [48].
[12] At [41].
[13] At [28].
[14] At [48].
[15] See footnotes 3, 4 and 5.
- [11]