YMCA v Chief Executive, Dept of Transport & Main Roads No 2
[2012] QLAC 4
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- Unreported Judgment
- Appeal Determined (QCA)
- YMCA v Chief Executive, Dept of Transport & Main Roads No 2[2012] QLAC 4
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YMCA v Chief Executive, Dept of Transport & Main Roads No 2[2012] QLAC 4
YMCA v Chief Executive, Dept of Transport & Main Roads No 2[2012] QLAC 4
LAND APPEAL COURT OF QUEENSLAND
CITATION: | YMCA v Chief Executive, Dept of Transport & Main Roads No 2 [2012] QLAC 004 |
PARTIES: | THE YOUNG MEN’S CHRISTIAN ASSOCIATION OF BRISBANE (appellant) v THE CHIEF EXECUTIVE, DEPARTMENT OF TRANSPORT AND MAIN ROADS (respondent) |
FILE NO: | LAC005-11 |
DIVISION: | Land Appeal Court |
PROCEEDING: | Determination of Orders |
DELIVERED ON: | 15 June 2012 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Heard on the papers |
COURT: | Peter Lyons J |
ORDERS: |
Section 18(5) of the Acquisition of Land Act 1967 (Qld), on its proper interpretation, does not preclude, in a case where land was held by a trustee under a Deed of Grant in trust under the Land Act 1994 (Qld), the assessment of compensation for the resumption of that land by reference to the costs of the reinstatement of the claimant’s operation to another site.
|
CATCHWORDS: | ORDERS – proper formulation following decisions – dispute between the parties as to form of Orders. Costs – unfettered discretion – principle that costs follow the event – ss. 34 and 72 Land Court Act 2000. |
COUNSEL: | GR Allan with M Van der Walt for the appellant DR Gore QC with J Horton for the respondent |
SOLICITORS: | Anderssen Lawyers Pty Ltd for the appellant Clayton Utz Lawyers for the respondent |
- [1]
- [2]The submissions of both parties related to two questions: firstly, the orders which should be made in light of the findings of this Court in the primary decision, and secondly, the orders for costs that this Court should make as a consequence of its findings.
Orders as a consequence of substantive decision
- [3]Agreement has been reached between the parties as to the form of orders that should be made as a consequence of the Court’s decision delivered on 27 April 2012. We agree that, for clarity, the orders of the Member below of 23 June 2011 should be set aside. It follows that the orders properly flowing as a consequence of this Court’s decision of 27 April 2012 are as follows:
- The general application is dismissed.
- The cross-appeal is dismissed.
- The appeal is allowed.
- Set aside the orders of the Member below made on 23 June 2011 and order in their place that the preliminary issue defined in the Order of 5 January 2010 be answered as follows:
Section 18(5) of the Acquisition of Land Act 1967 (Qld), on its proper interpretation, does not preclude, in a case where land was held by a trustee under a Deed of Grant in trust under the Land Act 1994 (Qld), the assessment of compensation for the resumption of that land by reference to the costs of the reinstatement of the claimant’s operation to another site.
Costs
- [4]The remaining dispute between the parties relates to the proper orders which should be made by this Court regarding the costs of the appeal.
- [5]The appellant submits that there should be no order as to costs in respect of the general application, and that the respondent should be ordered to pay the costs of the appellant with respect to the cross-appeal and the appeal. As regards its submission that there should be no order as to costs with respect to the general application, the appellant relies upon the decision of this Court in Barns v Director General, Department of Transport.[3] In the appellant’s view, the determination of the general application “involved a novel and important point of practice for the Court which was in the public interest to have the law clarified”.[4] In the circumstances, the appellant submitted that the financial burden of preparing and making submissions with respect to the general application should not be borne entirely by one party.
- [6]As regards the question of costs with respect to the cross-appeal and the appeal, the appellant argues that the respondent should be ordered to pay the appellant’s costs as, in its view, the appellant was wholly successful in the appeal.
- [7]The respondent has an entirely different view as to the resolution of the question of costs with respect to the appeal, the general application and the cross-appeal. In this respect, the respondent had this to say in their submissions:[5]
“5. There is no proper reason for denying the Respondent its costs of the General Application. The Court’s determination turned upon the form of the Land Court’s order and the terms of s. 57 of the LC Act (see LAC (RJ) at [12]). The application did not resolve any novel and important point of practice. The Appellant failed in its attempt to confine the scope of the argument in the appeal.
- While in theory separating the costs of the Appellant’s General Application (on which the Respondent succeeded) from the appeal and cross-appeals (on which the Appellant succeeded) might allow the respective successes of the parties to be recognised, from a realistic perspective, that task is impracticable. The General Application was heard together with the substantive appeal. The parties’ written and oral submissions dealt with both the substantive issues and those raised by the General Application.
- If costs were to follow the event, then the Respondents would be entitled to their costs of the General Application and the Appellant to the costs of the appeal. Bearing in mind that separation of the two is realistically impracticable, the alternative (and preferable) approach is to accept that they cancel each other out. The General Application consumed a not insubstantial part of written and oral submissions. This is reflected in the extent of the consideration which the Court gave to the issues raised by the General Application in the Court’s reasons (19 substantive paragraphs).
- The Respondents’ Cross-appeal did not add in any material way to the costs of the appeal. The Applicant appealed against two of the five orders made below. The Respondents cross-appealed against one of those same orders, and an additional two. The Court found the orders made below to have been interrelated (LAC (RJ) at [21]).
- [8]Section 34 of the Land Court Act 2000 (Qld) (“the Act”) provides:
“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.
- (3)An order made under subsection (1) may be made an order of the Supreme Court and enforced in the Supreme Court.
- (4)For subsection (3), it is enough to file the order in the Supreme Court.
- (5)The court may, if it considers it appropriate, order the costs to be decided by the appropriate assessing officer of the Supreme Court.
- (6)If the court makes an order under subsection (5), the assessing officer may decide the appropriate scale to be used in assessing the costs.”
- [9]Section 72(1) of the Act provides that s 34, amongst other provisions, applies “with necessary changes” to the Land Appeal Court and a “reference in the applied sections to the Land Court is taken to be a reference to the Land Appeal Court”.
- [10]
“[4] Hence the Land Appeal Court may order costs “as it considers appropriate”. The discretion to award costs is unfettered. However the rule often followed, and the rule incorporated in r 689 of the Uniform Civil Procedure Rules 1999, is that costs follow the event. That rule, while it does not govern the exercise of the discretion here, nonetheless informs it, as there is justice in that approach. It protects those put to unnecessary and substantial expense at the behest of others.” (footnotes omitted)
- [11]It is certainly the case that the general application, the appeal and the cross-appeal were all heard together. It is also quite apparent from the original reasons for decision that neither party was entirely successful before this Court. Further, it should be noted that this appeal relates to the determination of a preliminary question of law. The determination of the preliminary question by this Court should result in significant savings for both parties at the ultimate hearing of the appellant’s claim for compensation before the Land Court.
- [12]In all of the circumstances of this matter, in our view, costs should follow the event with respect to the appeal, the general application and the cross-appeal.
Orders
- The general application is dismissed.
- The cross-appeal is dismissed.
- The appeal is allowed.
- Set aside the orders of the Member below made on 23 June 2011 and order in their place that the preliminary issue defined in the Order of 5 January 2010 be answered as follows:
Section 18(5) of the Acquisition of Land Act 1967 (Qld), on its proper interpretation, does not preclude, in a case where land was held by a trustee under a Deed of Grant in trust under the Land Act 1994 (Qld), the assessment of compensation for the resumption of that land by reference to the costs of the reinstatement of the claimant’s operation to another site.
- The respondent pay the appellant’s costs, including any reserved costs, of and incidental to the appeal on the standard basis.
- The respondent pay the appellant’s costs, including any reserved costs, of and incidental to the cross appeal on the standard basis.
- The appellant pay the respondent’s costs, including any reserved costs, of and incidental to the general application on the standard basis.
- The costs are to be agreed or, failing agreement, are to be assessed by the appropriate assessing officer of the Supreme Court of Queensland (being a person who is a “costs assessor” as that term is defined in Rule 679 of the Uniform Civil Procedure Rules) on the standard basis using the Supreme Court scale of costs current at the date of this order.
PETER LYONS J
PA SMITH
MEMBER OF THE LAND COURT
WA ISDALE
MEMBER OF THE LAND COURT