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Williams v Department of Environment and Resource Management[2014] QLAC 10

Williams v Department of Environment and Resource Management[2014] QLAC 10

LAND APPEAL COURT OF QUEENSLAND

CITATION:

Williams v Department of Environment and Resource Management [2014] QLAC 10

PARTIES:

RICHARD FRED WILLIAMS and

MARY OLIVE WILLIAMS

(appellants)

v

CHIEF EXECUTIVE, DEPARTMENT OF ENVIRONMENT AND RESOURCE MANAGEMENT

(respondent)

FILE NO:

Appeal No. LAC009-13

Land Court No. WAA022-07

ORIGINATING COURT:

Land Court of Queensland

PROCEEDING:

Appeal

DELIVERED ON:

18 December 2014

DELIVERED AT:

Cairns

HEARD ON:

6 March 2014 and 29 April 2014

HEART AT:

Cairns

THE COURT:

Henry J

CAC MacDonald, President of the Land Court

MD Evans, Member of the Land Court

Separate reasons for judgment of each member of the Court, Henry J and MacDonald P agreeing as to the orders made, Evans M dissenting.

ORDER:

  1. The appeal is allowed.
  2. The order below is set aside.
  3. The respondent pay 70 per cent of the appellants’ costs of the appeal to the Land Court from and including 23 June 2008 on the indemnity basis.
  4. Submissions as to the costs of this appeal shall be in writing with:
  1. (a)
    the appellants’ written submissions (not exceeding five pages) to be filed and served within 21 days of these orders;
  1. (b)
    the respondent’s written submissions (not exceeding five pages) to be filed and served within 28 days of these orders; and
  1. (c)
    the appellants’ written submissions in reply (not exceeding two pages) to be filed and served within 35 days of these orders.

CATCHWORDS:

COSTS – WATER ACT – where the appellants were successful in an appeal to the Land Court, but their application for costs was dismissed – whether the learned member erred in failing to find the respondent had engaged in unmeritorious conduct as described in s 882(4) of the Water Act 2000 – where the respondent had resisted the appeal – where the respondent had rejected a Calderbank offer – where there had been maladministration by the respondent of previous water licence applications – where the respondent failed to disclose certain documents – where the respondent had changed expert witnesses in the course of the appeal

COSTS – DISCRETION OF COURT – whether the discretion to order costs, once enlivened, ought to be exercised – consideration of the cost consequences of the respondent’s failure to properly discharge its responsibilities in the appeal – whether costs should be awarded on the indemnity basis

District Court of Queensland Act 1967

Judicature Act 1873 (UK)

Land Court Act 2000 (Qld) s 34, s 27

Local Government (Planning and Environment) Act 1990

Water Act 2000 (Qld) s 35, s 210, s 880(2), s 882

Calderbank v Calderbank [1976] 3 All ER 333 applied

Chrismel v Department of Natural Resources and Mines [2005] 26 QLCR 87, distinguished

Colgate Palmolive Co & Anor v Cussons Pty Ltd (1993) 118 ALR 248, applied

De Tournouer v Chief Executive, Department of Natural Resources and Water (2008) QLC 0151

De Tournouer v Chief Executive Dept. of Environment and Resource Management [2011] 1 Qd R 200, considered

Fraser Property Developments Pty Ltd v Sommerfeld (No 1) [2005] 2 Qd R 394

Gallo & Williams v Chief Executive, Department of Environment and Resource Management  (2012) 33 QLCR 180

Gallo v Department of Environment and Resource Management (2013) 34 QLCR 371

Gallo v Chief Executive, Department of Environment and Resource Management (No 2) [2014] QLAC 11

House v The King (1936) 55 CLR 499, considered

Lu v Petrou [2001] QSC 57

Mbuzi v Hall [2010] QSC 359

Mudie v Gainriver Pty Ltd (No 2) [2003] 2 Qd R 271, applied

Pinehurst Nominees Pty Ltd v Coeur De Lion Investments Pty Ltd [2012] QSC 314

Singer v Berghouse (No 2) (1994) 181 CLR 201

United States of America v Dunkel 927 F 2d 955 (7th Cir 1991)

White v Barron (1980) 144 CLR 432

Williams v Chief Executive, Department of Environment and Resource Management [2012] QLC 24 

APPEARANCES:

DP Morzone QC for the appellants

MD Hinson QC, with him G Sammon for the respondent

SOLICITORS:

p&e Law for the appellants

Crown Law for the respondent

[1] HENRY J:  The appellants, Richard and Mary Williams, were dissatisfied with an internal review of the respondent’s decision in respect of their application for licences to take water to irrigate their property on the Atherton Tableland.  They appealed to the Land Court.  Their appeal to the Land Court was allowed but their application for costs was dismissed.  They appealed that decision to this court, seeking their costs below and the costs of this appeal.

The Substantive Proceeding Below

  1. [2]
    The appellants’ land was within the Atherton sub-artesian area in Management Area B of the Water Resources (Barron) Plan 2002 (“the plan”).  They applied to the respondent’s department for a licence to take 750 megalitres of ground water per annum from Area B but were only granted an allocation of 80 megalitres per annum.  That decision was confirmed on an internal review of the decision, prompting the appeal of the review decision to the Land Court.  The Notice of Appeal to the Land Court was filed on 23 March 2007.[1]
  1. [3]
    That appeal was heard by the Land Court pursuant to s 880(2) of the Water Act 2000 (Qld), “by way of re-hearing, unaffected by the reviewer’s decision”.  That necessarily involved the advancing and consideration on the appeal of the matters the Chief Executive was obliged to consider in deciding whether to grant or refuse the application and, if granted, in deciding the conditions for the licence. 
  1. [4]
    Those considerations are listed in s 210 of the Water Act and go generally to sustainability, efficiency, environmental protection and the public interest.  They also include consideration of “existing water entitlements and authorities to take or interfere with water” and consideration of the plan.  Section 11(2) of the plan requires surface and sub-artesian water to be allocated and managed in a way that seeks to achieve a balance in outcomes.  Those outcomes include provision “for the continued use of all water entitlements and other authorisations to take or interfere with water” and “to encourage the efficient use of water”.[2]
  1. [5]
    Regrettably the department had historically failed to have proper regard to s 210 of the Water Act and, through it, s 11 of the plan. It granted an abundance of earlier applications for water licences to other persons without proper regard to those considerations.  It was an era of maladministration referred to in the proceedings as the “water rush”. 
  1. [6]
    Evidence touching upon the maladministration was adduced from one of the appellants, Mr Williams, as well as Mr Bell, a hydrologist in the employ of the Mareeba office of the respondent’s department. While Mr Bell appears to have been called to testify about a particular conversation he was said to have had with Mr Williams, his cross-examination confirmed there had been a failure to apply the statutory criteria in issuing licences during the water rush, resulting in concerns about over allocation of water use. Despite the maladministration, the previously issued licences were not cancelled so that the department could start again by proper reference to the statutory criteria. This disadvantaged applicants like the appellants when their applications fell to be considered by supposed reference to the statutory criteria, because one of the circumstances to be considered is “existing water entitlements and authorities to take or interfere with water”. While the learned member had some undefined regard to the fairness of the impact of that era of maladministration upon subsequent applicants such as the Williams, he nonetheless determined the matter, as he had to, by reference to the relevant statutory criteria.
  1. [7]
    Expert evidence was advanced from Mr Sutherland for the appellants and Dr Watts for the respondent in respect of the efficiency of the use to which the water accessed under the proposed licence would be put. This area of the evidence was relatively uncontroversial. The presiding member noted in the absence of any existing irrigation entitlements that the determination of the issue was straight forward. He said it essentially came down to a matter of mathematics and not a concern as to whether the Williams could make efficient use of the entitlement thus arrived at.[3]  Of that evidence, the learned member reasoned:

“Certainly, the expert evidence as to the sustainable use of the ground water in the Williams’ application does not fall conclusively in favour of Williams.  However, taking all of the facts of the Williams’ application and the evidence relating thereto into account, and noting the concept of fairness as stipulated by the legislation, in my view it is appropriate that the Williams’ appeal be upheld and that a water entitlement of 515 megalitres per annum be granted.”[4]

  1. [8]
    A significant part of the hearing was consumed by the adducing and consideration of evidence from Mr Smith, a hydro-geological expert called by the appellants, and Dr Evans, a hydro-geological expert called by the respondent. Their evidence went to the consequences, for surrounding ground water flow and volume, of water being pumped from a bore drilled into the aquifer underlying the Williams’ property. There was an evidentiary issue as to whether that aquifer was confined or unconfined, that is, whether there was interconnectivity between it and surface water such as springs, creeks and rivers nearby.
  1. [9]
    The learned member noted it was unfortunate that each expert had adopted a different methodology to underpin their analysis of the hydro-geological features of the relevant parts of Management Area B. He considered some of the distinctions between their evidence could be attributed directly to the different methodology.[5]  In the upshot he concluded:

“Taking account of all of the evidence, I am satisfied that there is some interconnection between the aquifers from which the water will be drawn and the surface waters in the immediate vicinity.  However, I am not satisfied as to the extent of any such inter-connectivity.  In my view, this remains a matter of scientific doubt.  However, it is not my view that the scientific doubt is such as to preclude the making of a decision favourable to the appellants in this matter.”[6]

  1. [10]
    He concluded the uncertainty could be met “by the institution of an appropriate groundwater and surface monitoring program” as a condition of the licence.[7]  The presiding member allowed the appeal and directed:

“[T]hat a licence to take 515 megalitres of water per annum be granted, with such licence to be subject to appropriate conditions as to the monitoring and management of the licence.”[8]

  1. [11]
    The learned member made other orders, including that the appellant and respondent were to agree on conditions of the licence and revert to the court in the event of a failure to agree. As regards the monitoring conditions contemplated by the presiding member about the impact of interconnectivity, the department subsequently waived the need for there to be such conditions.[9] 
  1. [12]
    The appellants below applied for costs on the indemnity basis.

Power to award costs below

  1. [13]
    The power to award costs below derived prima facie from s 34 of the Land Court Act 2000 (Qld) which provides:

“34 Costs

  1. (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.
  1. (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.” (emphasis added)
  1. [14]
    A provision “to the contrary” appears in s 882 of the Water Act.  That section imports a presumption that each party will bear its own costs unless the Court considers it appropriate to order costs where a party to the appeal has engaged in one of the forms of unmeritorious conduct described in s 882(4).  Section 882 relevantly provides:

“882 Powers of court on appeal

…

  1. (3)
    Each party to the appeal must bear the party’s own costs for the appeal.

…

  1. (4)
    However, the court may order costs for the appeal, including allowances to witnesses attending for giving evidence at the appeal, as it considers appropriate in the following circumstances—

(a)the court considers the appeal was started merely to delay or obstruct;

(b)the court considers the appeal, or part of the appeal, to have been frivolous or
vexatious;

(c)a party has not been given reasonable notice of intention to apply for an
adjournment of the appeal;

(d)a party has incurred costs because the party is required to apply for an
adjournment because of the conduct of another party;

(e)a party has incurred costs because another party has defaulted in the court’s
procedural requirements;

(f)without limiting paragraph (d), a party has incurred costs because another party has
introduced, or sought to introduce, new material;

(g)a party to the appeal does not properly discharge its responsibilities in the appeal.

  1. (5)
    If the court makes an order under subsection (4), the court may also order the party ordered to pay costs under subsection(4) to pay to the other party an amount as compensation for loss or damage suffered by the other party because of the appeal               if the court considers—
  1. (a)
    the appeal was started merely to delay or  obstruct; or
  1. (b)
    the appeal, or part of the appeal, to have been frivolous or vexatious. …”
  1. [15]
    The member below concluded the case did not involve any of the circumstances set out in s 882(4) and refused the costs application. He said:

“I have considerable sympathy for Williams and the expense to which they have been put, not only in prosecuting the appeal in this matter, but also in seeking a determination of costs in their favour.  However, it is not permissible for this court to do anything other than strictly apply the law as it falls upon me to do in the exercise of my discretion as to costs, and in so doing I conclude that I have no option in this matter other than to determine that the provisions of s 882(3) must apply as Williams has been unsuccessful in showing that any of the provisions set out in s 882(4) of the Water Act have been met.”[10]

Nature of this appeal

  1. [16]
    An appeal to the Land Appeal Court is by way of re-hearing and the appellants can only succeed if they establish the member’s decision resulted from factual, legal or discretionary error.[11] 
  1. [17]
    The notice of appeal appended a document headed “Grounds of Appeal” but such grounds as it may have identified amidst its 45 paragraphs were as well disguised by detail there as they were in the appellants’ subsequent 24 page written “outline” of submissions. In written submissions in reply the appellants’ counsel distilled and summarised four alleged errors of law as:

“a)no or inadequate reasons in relation to the conduct nomination and subsequent abandonment of the expert witness Lait, and thereby failing to take account of relevant considerations and weight to irrelevant considerations or assumptions not supported by evidence;

b)mischaracterised the failure to disclosure notwithstanding the relevance of the material fairness and conduct;

c)miscarried the proper exercise of the discretion as to costs by having undue regard to the conduct and comparison of the Gallo appeal;

d)failure to properly consider the Calderbank offer and related conduct.”[12]

  1. [18]
    While not disowning reliance on those legal errors, the appellants’ primary approach in the appeal was to advance argument to demonstrate its position on the facts was so strong that there must have been error of the kind discussed in House v The King.[13] That is, the appellants urged this court to infer the decision to refuse to award the appellants’ costs was so unreasonable or plainly unjust that there must have been a failure to properly exercise the discretion below.  A premise of their argument was that the learned member should have taken a more serious and adverse view of the respondent’s conduct during the litigation   The real substance of their complaint was not that the member erred in failing to exercise the discretion enlivened by the presence of one or more unmeritorious circumstances listed in s 882(4), but that he erred in failing to find any such circumstances were present at all.
  1. [19]
    The appellants argue the member below should have ordered its costs for the appeal because of the existence of circumstances identified in s 882(4)(b), (f) and (g).
  1. [20]
    The appellants’ outline identified the overlapping grounds relied on by reference to those provisions as follows:

“(a) s 882(4)(b):  The respondent’s resistance to the appeal peppered with the conduct described               below, properly characterised, was vexatious               whereby it was “…productive of serious and               unjustified trouble and harassment…” to the appellants;

  1. (b)
     s 882(4)(f):  The appellants have incurred costs because the respondent had introduced, or sought to introduce, new material by introducing a new expert after engaging in ‘witness shopping’.
  1. (c)
     s 882(4)(g):  The respondent did not properly discharge its responsibilities in the appeal by introducing a new expert witness, failing to disclose and properly brief experts, absence of policy relied upon, unlawfully assessing water allocation in Area B and failing to consider a reasonable offer.”[14]
  1. [21]
    There exists potential for a particular feature of a litigant’s conduct to fall within more than one of the circumstances described in s 882(4).[15]  The features complained of by the appellant have potentially overlapping relevance to subsections (b), (f) and (g) of s 882(4).  It is therefore sensible to consider the matter by progressive reference to the actual features of the respondent’s conduct as complained of by the appellants, namely:
  1. (1)
    resistance to the appeal;
  1. (2)
    refusal of a Calderbank offer;
  1. (3)
    unlawful assessment of other applications for water licences;
  1. (4)
    failure to disclose and properly brief experts; and
  1. (5)
    witness shopping.

Resistance to the Appeal

  1. [22]
    The appellants submit the respondent failed to discharge its responsibilities as a model litigant by resisting the appeal when it had been put on notice by the Notice of Appeal that the assessment of licences in Area B was unlawful.[16]  If that submission is intended to represent that the respondent should have realised from the Notice of Appeal that its issuing of licences during the water rush was unlawful and thus the appellants were entitled to the same unlawful benefit, then it is misconceived.  Past maladministration to the benefit of other licencees did not oblige the respondent to provide the same erroneous benefit to the appellants.
  1. [23]
    The appellants relied on Chrismel v Department of Natural Resources and Mines[17] in support of their argument the appeal should not have been resisted.  However, Chrismel was a case in which the respondent had conceded on the eve of hearing that its resistance to the appeal was unsustainable.  That did not occur here. 
  1. [24]
    The mere fact a litigant, even a model litigant, proceeds and loses does not of itself mean that that outcome was so obviously inevitable that it was irresponsible or vexatious to have proceeded at all. The respondent’s resistance to the appeal below did not amount to a circumstance described in s 882(4).

Refusal of a Calderbank offer

  1. [25]
    On 4 September 2008 the respondent wrote to the appellants’ solicitors seeking settlement on the basis the appellants’ licenced water entitlement be increased from 80ML/water year to 100ML/water year and that each party bear their own costs.[18]  The offer was only to remain open until 5pm the following day.  The following day, 5 September 2008, the appellants’ solicitors wrote to the respondent rejecting its offer and saying:

“We are instructed that our client would be prepared to consider settling the appeal on the basis that their existing water entitlement is increased to an entitlement of around 2/3 of the amount originally applied for, that is, 500ML per water year; and that each party bear their own costs of the appeal.”[19] 

  1. [26]
    On 26 September 2008 the respondent wrote to the appellants’ solicitors, referring to the letter of 5 September 2008 and saying:

“I am instructed by the Chief Executive to reject your clients’ counter-offer.”[20]

  1. [27]
    The eventual outcome of the case involved the Land Court granting a licence to take 515ML/water year which was more than the 500ML/water year mentioned in the Calderbank[21] offer.  That is, the end result for the appellants was better than the result offered by the appellants and rejected by the respondent.
  1. [28]
    Despite the arguably ambiguous use of the words “would be prepared to consider settling” in the letter of 5 September 2008, the respondent’s eventual response obviously treated it as having been an offer and in the appeal the respondent accepted it was a Calderbank offer.
  1. [29]
    The learned presiding member below noted that the costs relevance of the Calderbank offer had been argued by the appellants on the premise that it was first necessary for them to pass the threshold of one of the circumstances present in s 882(4) being present.  The learned member concluded it was unnecessary to further consider the Calderbank offer as he considered the appellants had failed to show that any of the circumstances of s 882(4) were present. 
  1. [30]
    In this appeal the appellants submitted the rejection of the Calderbank offer justified an award of indemnity costs if the court concludes the appellants’ costs are to be paid by the respondent in consequence of the operation of s 882(4).[22]  In the course of argument some members of this court expressed the view that an unreasonable rejection of a Calderbank offer could, depending on the circumstances, amount to a failure to properly discharge a party’s responsibilities in the appeal and thus of itself constitute a circumstance enlivening the discretion to award costs pursuant to s 882(4)(g).  That did not provoke an amendment to any grounds. 
  1. [31]
    The respondent’s submission emphasised the Calderbank offer had not been put to the learned presiding member below on the basis that its rejection constituted a failure by the respondent to discharge its responsibilities in the appeal; a circumstance mentioned in s 882(4).
  1. [32]
    In any event the respondent submitted that the rejection of the Calderbank offer was not unreasonable.  It was submitted the respondent did not have enough material at the point of the offer to be in a position to accept it. 
  1. [33]
    The licence application nominated the maximum area being irrigated as 80HA.[23]  Applying even the statutory maximum of 5ML/HA that would have given rise to a maximum entitlement of 400ML, markedly less than the 500ML sought by the Calderbank offer.  The fact that the appellants were contending, for a larger irrigation area did not emerge until October 2009 when Mr Sutherland’s first crop water resource plan identified a potential irrigation area of 122HA,[24] later reduced by agreement between Mr Sutherland and Dr Watts to an irrigable area of 111.4HA.[25] 
  1. [34]
    Given the respondent’s state of knowledge as to the irrigation area under consideration at the time of the Calderbank offer, the rejection of that offer at that time was not unreasonable. 
  1. [35]
    The respondent could have revisited the appellants’ offer once the reports of Sutherland and Watts identifying the relevant area as being 111.4HA became known.  However it was hardly obliged to do so.  The respondent’s counsel identified at least one reason why it may not have done so, namely the dispute between Mr Smith and Dr Evans relating to interconnectivity and the potential adverse impact against surface water flow.  As discussed hereunder that would not have been a continuing dispute had the respondent retained Mr Lait, the hydro-geological expert it initially announced it would be using in the proceeding.  However the respondents’ change of hydro-geological expert is a different issue. 
  1. [36]
    There was no s 882(4) circumstance arising in respect of the Calderbank offer.

Unlawful assessment of other application for water licences

  1. [37]
    The failure of the respondent in the water rush era to have complied with the respondent’s statutory responsibility and consider the relevant matters pursuant to s 210 as well as s 11 of the plan has already been discussed.
  1. [38]
    That maladministration had adverse consequences for subsequent applicants such as the appellants because it had wrongly ballooned existing water entitlements and thus reduced the extent of the overall water resource which others could properly be licenced to take. However accepting that the respondent should have revoked or amended the licences improperly issued during the water rush, that omission was not part of the respondent’s conduct in the appeal. Section 882(4) is plainly concerned with circumstances relating to the conduct of the appeal.
  1. [39]
    The learned presiding member correctly observed that he was required in the proceeding to take into account existing water allocations granted under existing water licences but had no jurisdiction to review the validity of any of those licences. He concluded the maladministration was no part of the actions of the respondent in the conduct of this case and was thus not such as to enliven the provisions of s 882(4).
  1. [40]
    That conclusion was correct. The appellants’ complaints about the significance of the respondent’s maladministration in this case do not go to the respondent’s conduct in this case. Rather they go to the consequences in a factual sense of the respondent’s maladministration resulting in the granting of past applications.
  1. [41]
    The appellants have demonstrated no error in this context.

Failure to disclose

  1. [42]
    The appellants sought disclosure prior to the hearing of the appeal below of copies of application documents and departmental reports relating to the assessment and the analysis carried out in relation to each licence application for Management Area B. The respondent agreed to disclose copies of existing surface water and ground water licences issued in Management Area B and the results of any testing provided in support of them. However the respondent declined to provide the application documentation and departmental records on the basis that such material was not directly relevant to the issues in dispute in the appeal.[26] 
  1. [43]
    The solicitors for the appellants unsuccessfully repeated their request of the respondent that application documents and departmental records in relation to assessment and analysis of applications and the resulting licences be disclosed.[27]  In the upshot the appellants obtained that documentation under a Freedom of Information Act request.  It apparently amounted to 25 boxes of documentary material.[28]  
  1. [44]
    The learned member below observed:

“There was an issue as to specific relevance and oppression given the volume of material.  Had the solicitors for Williams and their Counsel considered it appropriate to take the matter further in the current proceedings rather than to proceed by way of FOI application, a relatively inexpensive and quick application could have been brought to this Court seeking formal discovery by DERM of the 25 boxes of material.  No such application was ever made by Williams.  This point is telling.

The fact that no objection was made on behalf of DERM to the material that ultimately made up Exhibit 43 is not of itself an answer to the lack of a formal application for disclosure.  The issue was never one as to whether or not the documents existed; it was a question of relevance and oppression.  In my view, given the broad rules that apply to the Land Court for the receipt of evidence, Counsel for DERM were correct not to make any objection to the receipt into evidence of Exhibit 43.  Further, such documentation was relevant to a consideration of the issue of “fairness” which I canvassed extensively in my reasons for judgment.”[29]

  1. [45]
    There is no doubt that the pre-existing surface water and ground water licenses issued for Management Area B were relevant. Those materials were relevant to the consideration required by s 210(1)(d) of the Act, of “existing water entitlements and authorities to take or interfere with water”. Such information was not only relevant for the benefit of the Land Court but also for the benefit of the experts briefed to give evidence in the matter.  But there was no difficulty with the disclosure of those documents. 
  1. [46]
    The appellants’ argument that the failure to disclose the balance of the materials was so unmeritorious as to attract the operation of s 882(4) may in part be a product of its success below in ultimately airing the fact of the maladministration. This it did by the tender of documents it had obtained by way of a Freedom of Information Act request as well as through the cross-examination of Mr Bell.  However the learned presiding member’s ultimate conclusion as to the relevance of the maladministration issue was hardly a ringing endorsement of the relevance of those materials.  Moreover the appellants could have but did not seek to enforce disclosure through an application to the court.  Given the questionable relevance of the documents to the real issues in the proceeding it is doubtful whether such an application would have succeeded.
  1. [47]
    The learned presiding member was correct to conclude that the non-disclosure of the documents did not give rise to a circumstance contemplated by s 882(4).

Witness Shopping

Background

  1. [48]
    The appellants complained the respondent had engaged in “witness shopping” by failing to adhere to the expert evidence of its nominated expert, Mr Lait. Instead, it changed the hydro-geological expert it intended to use in the proceeding to Dr Evans, who had a different view about interconnectivity than Mr Lait and the appellants, resulting in a much more costly proceedings.
  1. [49]
    On 23 July 2007 the appellants’ solicitors wrote to the respondent in respect of the appellants’ appeal as well as the appeals of two other sets of appellants, the Gallos and the Cowies. The letter noted some conflicting advice as to whether groundwater investigations upon which the department was embarking in Management Area B related generally to groundwater entitlements in that area, or were specifically for the purpose of the appeal proceedings. The letter expressed an understanding that Mr Lait would be providing evidence on the respondent’s behalf in future appeal proceedings and noted that if there was going to be further scientific investigation for the purpose of the appeal it was imperative the appellants be provided with all information regarding the investigation.[30]
  1. [50]
    On 2 August 2007 the respondent wrote to the appellants’ solicitors in respect of the Williams’ appeal and the two other appeals saying, inter alia:

“I confirm that Mr Lait has been engaged by the department as its expert witness and will provide evidence on the respondent’s behalf in the appeal proceedings. 

As you are aware, there are a number of water licence decisions in Area B of the Barron Water Resources Plan area that are contentious.  Mr Lait’s investigations of the Atherton aquifer, which is the common resource, is relevant to these licence decisions and to the management of the groundwater entitlements in the area. …

Mr Lait is of the view that fresh pumping tests are required before he can reach an independent conclusion of the status of the aquifer. …

At the conclusion of his investigation, Mr Lait will prepare a report consisting (sic) details of his investigation and conclusion.  Mr Lait’s report will be disclosed prior to hearing by way of disclosure of expert report.” (emphasis added)

The letter sought the consent of the Gallos for Mr Lait to enter their property to conduct pumping tests.[31]  The letter was an unambiguous representation that Mr Lait was to be its expert witness in the appeal.

  1. [51]
    On 6 September 2007 the respondent sent a letter to the appellants’ solicitors in respect of their appeal, and that of the Gallos and Cowies, stating in respect of those appeals:

“I confirm that Mr Lait of Australasian Groundwater and Environmental Consultants Pty Ltd (“AGE”) has been retained to give evidence for the chief executive in the three appeals listed above, as well as those appeals brought on behalf of John and Maria Gallo and on behalf of Ms Margaret De Tourneour.  The outcome of Mr Lait’s investigations will also be used in the broader water resource planning process in the Barron Catchment.”[32] (emphasis added)

  1. [52]
    The letter went on to mention that Mr Hair, hydrologist, retained to give evidence on behalf of Ms De Tournouer, had agreed Mr Lait’s proposed tests would be useful. The letter again sought access to the Gallo property to conduct the bore pump tests sought by Mr Lait.[33] 
  1. [53]
    On 13 September 2007 the Land Court ordered in respect of the appellants’ appeal, as well as that of the Gallos and Cowies:

“(1) The hearing of these appeals is deferred pending the conduct of bore pump tests on Bore 109245, and other bores if agreed between the experts retained by each party, along with associated monitoring of the effects of these tests.

  1. (2)
    The chief executive will make the results of the tests conducted on RN109245, RN109627, RN109380 and any other bores agreed between the experts available to the appellants 7 calendar days after the test conducted on each bore is completed.
  1. (3)
    The parties make disclosure of all relevant documents by list of documents on or before 22 October 2007.
  1. (4)
    The parties inspect disclosed documents on or before 5 November 2007. …”[34] (emphasis added)

Thus the hearing of the appeal was deferred for the respondent’s expert witness for the appeal, Mr Lait, to conduct testing.  Subsequent correspondence shows he conducted such testing and prepared a report.

  1. [54]
    On 27 February 2008 the appellants’ solicitors wrote to the respondent, again in respect of all three appeals, enclosing correspondence from Gilbert and Sutherland Agricultural and Environmental Scientists. It was noted those consultants had had the opportunity to review the evidence prepared by Mr Lait and Mr Hair for the purpose of the De Tournouer appeal. The attached correspondence from Gilbert and Sutherland said, inter alia:

“We have now had the benefit of the reports of two experts who have prepared groundwater allocation reviews for both the department and another landholder in the immediate locale, Mrs Margaret De Tournouer.  A critical point of agreement between these two experts is the apparent lack of connectivity between the local creeks and the deep underlying basalt aquifer, also known as the Quincan aquifer.”[35]

  1. [55]
    The consultants noted the generally common ground view of the experts that there was no interconnectivity between the aquifer and streams and creeks saying:

“This represents a threshold point.  Both experts accept there is limited or no connection between the aquifer and the surrounding creeks.  The Department’s current allocation of water within the catchment has taken into account a requirement for environmental flows in surrounding creeks, and considers an allocation for agricultural and other uses outside of the catchment.  As there is limited or no connection, these matters should not properly be taken into account.  For this reason, groundwater drawdown will only affect the groundwater users within this catchment and a detailed statement of evidence from Mr Neil Sutherland at this stage would be superfluous based on the agreement of those experts.”[36] (emphasis added)

The letter went on to recommend works, described as “extensive and costly”, if the Land Court failed to accept the threshold position agreed by the opposing experts.[37]

  1. [56]
    Mr Lait had been requested by a letter of the department of 24 December 2007[38] to respond to a series of questions.  The tone of the questions posed by the department was described by Member Scott at first instance in the appeal of De Tournouer[39] as challenging Mr Lait’s opinions.  They were certainly a comprehensive and testing array of questions.  The member in De Tournouer noted that the hydro-geologist called by the respondent in that proceeding, Dr Prendergast, not Mr Lait, introduced a new case inconsistent in important respects with the case based on Mr Lait’s evidence and inconsistent with the pre-trial process of meeting of experts in the production of a joint report of Mr Lait and Mr Hair. 
  1. [57]
    Mr Lait affirmed his position in his responses to the department’s questions on 15 February 2008 saying, inter alia:

“From the recently conducted groundwater investigation, there is no evidence to suggest that there is any evidence [to suggest a connection] between baseflows in the Upper Barron River and Gwynne, Leslie and Peterson Creeks, or other streams in subartesian Management Area B. It has been concluded that the aquifer in those areas investigated is confined and thus there is little or no opportunity for groundwater/surface water exchange.  From discussions with NRW officers it is understood that there may indeed be such groundwater/surface water exchange in the very head waters of these catchments, where the aquifer is exposed at ground surface and hence unconfined, but this is not the case in those areas recently investigated.”[40]

  1. [58]
    Further, in a supplementary report on stable isotope analyses of groundwater and surface water in the management area in February 2008 Mr Lait concluded:

“Based on the evidence from the stable isotope investigation in Management Area B, it is concluded that there is no interchange of surface water in flowing watercourses with the groundwater in the Atherton Basalt aquifer, in that section of Management Area B sampled in 2007.”[41]

  1. [59]
    On 23 June 2008 the respondent in facsimile correspondence to the appellants’ solicitors said inter alia:

“Whilst it was indicted (sic) in the department’s letter of 6 September 2007 that Mr Lait would be giving evidence on behalf of the Chief Executive in the appeals, I am now instructed that the Chief Executive will not be calling Mr Lait as a witness in these appeals.  The Chief Executive has retained Dr Richard Evans, a Principal Hydrogeologist, of Sinclair Knight Merz, to give evidence on behalf of the Chief Executive in these appeals.  To avoid any further confusion, the Chief Executive requires that the directions order for these appeals include provision for the parties to serve a list of expert witnesses.”[42] (emphasis added)

The letter’s reference to “confusion” is self-serving and misleading.  There is no room for confusion.  The respondent intended that Mr Lait would be its expert witness in the proceeding.  The respondent plainly changed his or her mind.

  1. [60]
    Later on 23 June 2008 the matter was mentioned by teleconference and the Land Court ordered that on or before 27 June 2008 the parties serve a list specifying the name and field of expertise of each expert proposed to be called by them at the hearing of the appeal.  The orders went on to deal inter alia with preliminary meetings of experts and the production of joint reports.[43]
  1. [61]
    On 12 September 2008 the solicitors for the appellants wrote to the respondent noting they had at all times indicated their willingness to rely upon the evidence provided by Mr Lait proposed by the Chief Executive for the purposes of the appeals. The letter went on to reject an apparent request by the department that the appellants share in contributing to the costs of further field investigations which they alleged had arisen due to the change in the expert to be relied upon by the department. The letter noted the lack of knowledge sought to be obtained by its proposed field program should be a source of embarrassment by the Chief Executive given the Chief Executive’s obligations pursuant to s 35 of the Water Act.  The letter observed:

“Put simply, the nature of the work required is to obtain information which should be available as part of the Department’s records.”[44]

  1. [62]
    The learned presiding member’s reasons in the costs decision made reference to correspondence revealing Dr Evans had been involved with the respondent’s department in a surface water interaction project commissioned by the National Water Commission which had been awarded for performance in October 2006. After referring to an extract of that letter, the learned presiding member said:

“In my view, the above extract makes it clear that DERM was not, at least directly, engaged in ‘expert shopping’.  Quite clearly, as part of a much broader project, Dr Evans had been engaged by DERM.  The nature of those investigations undertaken in the other project by Dr Evans, which commenced in 2005, proved to be directly relevant to key points at issue in the current case.  It is clearly reasonable, in those circumstances for DERM to have engaged Dr Evans as its expert for these proceedings.  This position is perhaps even more understandable when one takes into account the criticism in De Tournouer from Member Scott.”[45] 

Discussion

  1. [63]
    The fact that Dr Evans had earlier been involved with the respondent’s department was little to the point. There was no evidence to suggest Dr Evans had in fact been engaged as the respondent’s expert hydrologist for the purposes of the appeal below prior to the department having engaged Mr Lait for that purpose. The department’s pre-existing dealings with Dr Evans no doubt meant it did not have to “shop” far to find another expert instead of Mr Lait but shop it must have.
  1. [64]
    The learned member’s perception of the relevance of the criticism that the respondent’s department received at first instance in De Tournouer is also misconceived.  In that matter the presiding member was highly critical of the change of expert and of the quality of evidence given by the expert called by the witness, Dr Prendergast.  It is not as if Mr Lait had been the expert called in De Tournouer and been found wanting as a witness, thus providing a reason to use a different expert than him in respect to the Williams appeal. 
  1. [65]
    If anything, the events in De Tournouer should have prompted rather than assuaged concern by the learned member in this matter.  Here, as in De Tournouer the respondent’s expert witness Mr Lait had been jettisoned from the respondent’s case without explanation.
  1. [66]
    The real cause for concern, not identified by the learned member, stemmed not from the new choice of expert but from the fact, context and consequences of the abandonment of the former expert.
  1. [67]
    It is true the respondent did not nominate Mr Lait as its relevant expert in accordance with a direction of the court. It will be recalled it was the respondent who pressed for a direction that the parties serve a list of expert witnesses, under the self serving banner of avoiding confusion which was non-existent. So it was that the respondent avoided the challenge that it changed course without leave of the court. But by that time the respondent could have been in little doubt of how controversial its actions were.
  1. [68]
    The previous year the respondent’s solicitors had repeatedly represented to their opponents that Mr Lait had been retained to give evidence for the respondent as an expert witness in the proceeding. Worse than that they had, on the strength of that representation, secured the co-operation of their opponents in deferring the hearing of the proceeding to allow Mr Lait to conduct testing. Indeed even after that testing they had allowed Mr Lait’s reporting to be disclosed and well knew their opponents were progressing preparation in welcome reliance on it.
  1. [69]
    In so committing to Mr Lait’s use, it may be inferred the respondent had properly considered Mr Lait’s credentials and suitability as its expert witness in engaging and nominating him. The respondent should have well appreciated that, as an expert, Mr Lait was obliged to form opinions professionally, without regard to the partisan interest of the engaging party.
  1. [70]
    Against this background the respondent’s silence below and in this court to why it abandoned use of Mr Lait as its expert is telling. There might sometimes be instances where an engaged expert provides evidence so lacking in expert reasoning, foundation or other necessary quality that the witness should not be relied on. But if that were the case in respect of Mr Lait it could readily have been revealed in explanation of his abandonment. It was not. Absent explanation, the obvious inference may be even more safely drawn: Mr Lait’s expert conclusion as to the absence or near absence of connectivity did not suit the case the respondent wanted to run.
  1. [71]
    The context in which this occurred goes beyond the lengthy period during which the respondent delayed the proceeding and strung the appellants along, causing them to co-operate in delaying the case and to prepare in reliance upon Mr Lait’s opinion.
  1. [72]
    The context also includes the reality that the proceeding below was an appeal from an earlier decision, namely the review, which was itself a review of an earlier decision, namely the initial decision in respect of the Williams’ licence application.
  1. [73]
    The initial decision required an application of the criteria listed in s 210 of the Water Act.  To have proper regard to the considerations therein the respondent was supposed to consider, inter alia, information about the effects of taking water on the physical integrity of water courses and aquifers. Interconnectivity was therefore relevant information.  If such information was as important as the respondent represented it was in the appeal below then it must have been of equal importance at the time of the initial decision.  While the appeal below was a hearing de novo and the department was fully entitled to freshly gather and use evidence not in its possession at the time of its initial decision, it was not a party coming to this matter afresh.  It should already have been well armed with the information needed to consider the s 210 criteria.  If it was performing its statutory duties correctly that is the same information it needed at the time of the initial decision. 
  1. [74]
    That context informs the nature of the respondent’s responsibilities in this appeal, as does the expectation the respondent should have behaved as a model litigant.[46]  The respondent had an obligation from the outset of the appeal to promptly finalise the gathering of any further relevant evidence and delay no further.  If as part of that process it were to engage an expert, its obligation was to ensure that it promptly engaged an appropriately professional expert, equipping that expert with the means of promptly gathering any further relevant information and promptly providing an expert report.  In so doing and announcing to the appellants that the expert so engaged would be its expert in the proceeding, the respondent had a responsibility to thereafter behave consistently with that representation.
  1. [75]
    By thereafter changing experts in the proceeding the respondent did not behave consistently with that responsibility. The respondent did not properly discharge its responsibilities in the appeal.
  1. [76]
    That conclusion is a circumstance listed in s 882(4)(g). It is a conclusion so clearly compelled by the evidence before the learned presiding member that the learned member erred in not concluding that circumstance was present. It follows the learned member erred in not finding his discretion to order costs for the appeal pursuant to s 882(4) was enlivened by reason of that circumstance.
  1. [77]
    The above reasoning identifies s 882(4)(g) as the relevant circumstance enlivening the discretion. The appellants also relied on s 882(4)(b) and (f) as relevant. For completeness I note that the above criticised conduct is not frivolous or vexatious within the meaning of s 882(4)(b)[47] but it was conduct described in s 882(4)(f).  That is, it was conduct involving the introduction of new material in consequence of which the appellant incurred costs.  The learned member erred in not so finding.
  1. [78]
    In now turning to whether and if so how the discretion enlivened by the presence of a s 882(4) circumstance ought be exercised, little turns on the fact the above criticised conduct falls within two rather than only one of the circumstances listed in s 882(4). The nature of the conduct meeting the circumstances described in s 882(4)(f) and (g) is essentially the same. The real gravamen of the conduct arises from the context in which the respondent had a responsibility to promptly finalise its expert hydro-geological evidence and thereafter conduct the litigation consistently with the representations made as to what the expert evidence would be. For that reason the language of s 882(4)(g) is a more effective descriptor of the conduct than s 882(f) and I will therefore adopt the language of s 882(4)(g) in referring to the conduct hereafter.

Exercise of discretion

  1. [79]
    The presence of a circumstance in s 882(4) does not automatically justify the making of an order as to costs. Its consequence is that the Land Court “may order costs … as it considers appropriate” in circumstances where “a party does not properly discharge its responsibilities in the appeal”.
  1. [80]
    Consideration of the cost consequences of the respondent’s conduct is logically relevant to whether and to what extent that discretion ought be exercised. This follows from s 882(4)’s language linking the discretion with the circumstances through the words “as it considers appropriate in the following circumstances.”
  1. [81]
    Whereas the parties were clearly headed towards a common ground position about the issue of connectivity before the abandonment of Mr Lait, that position unravelled into a contest. Such a contest would not have been necessary had the respondent continued with Mr Lait as its expert witness. Had that occurred there would have been substantial evidentiary common ground about the hydro-geological consequences of pumping water from a bore drilled into the aquifer underlying the Williams property. It is likely that the parties acting reasonably would not have contested this aspect of the matter. Instead, as a result of the respondent’s conduct, there was a contest about this aspect, with an inevitably significant cost consequence for the appellants.
  1. [82]
    A proposition arose in argument[48] to the effect that cost consequence did not result from an unreasonable course because in the end result the presiding member accepted Dr Evans’ evidence, at least in part, for the member was satisfied that there was some interconnection.  There are two difficulties with that proposition. 
  1. [83]
    Firstly, it is not a reasonable encapsulation of the end result. It will be recalled the learned member was not satisfied as to the extent of interconnectivity and hence directed the parties to attempt to agree upon a monitoring condition for the licence to be issued. But, as the appellant emphasised in submissions,[49] by orders of 14 June 2012, over 12 months before the costs decision now under appeal was made, the presiding member dispensed with the need for that condition because it was not technically feasible.[50]  So it is that in the end result there was no practical difference in the result which would have followed had the respondent continued with Mr Lait.  The respondent’s deviation from Mr Lait therefore gave rise to an ultimately academic dispute.
  1. [84]
    Secondly, in the present context the end result achieved through the use of Dr Evans is not really to the point. So what if Dr Evans was apparently regarded as a credible witness? There is nothing to suggest Mr Lait would not likewise have been regarded as a credible witness.
  1. [85]
    In the present context the relevant costs consequence is the consequence of the respondent’s failure, by abandoning Mr Lait as its expert, to properly discharge its responsibility in the appeal. That consequence was that instead of there likely being no contest about the hydro-geological consequences of pumping water from a bore drilled into the aquifer underlying the Williams property, there was a contest about that issue which absorbed most of the time in the proceeding.[51]  Forecasting what would have transpired had the respondent not changed from using Mr Lait as the respondent’s expert is obviously an imprecise exercise.  Even allowing for the abovementioned likelihood of common ground, some further work would have been required.  However, the cost consequences of that work would have paled by comparison to those of the contest which did ensue in respect of this issue.  Making due allowance for such considerations, a reasonable estimate of the cost consequences, for the purpose of assessing what is appropriate, is 70 per cent of the appellants’ costs from the time of the respondent’s failure to properly discharge its responsibilities.
  1. [86]
    It is therefore appropriate that the respondent should pay 70 per cent of the appellants’ costs of the proceeding incurred from the communication of the abandonment of Mr Lait as the respondent’s expert on 23 June 2008.
  1. [87]
    As to whether those costs ought be on the standard or indemnity basis they should at the very least be on the standard basis. Is it appropriate to uplift them to the indemnity basis? The discretion enlivened is the ordering of such costs as are considered appropriate in the relevant circumstances in s 882(4). It follows the court is not precluded from ordering costs on the indemnity basis, although, consistently with general principles as to costs, that ought only occur if there is some special or unusual feature in the circumstances to justify a departure from the usual course of ordering costs on the standard basis.[52]  There are some obvious similarities between the list of circumstances in s 882(4) and the examples in the cases of circumstances which have warranted indemnity costs orders.[53]  It is therefore unsurprising that the exceptional feature of the respondent’s conduct as a litigant which enlivened the discretion to award costs under s 882(4) is the same feature which in my view warrants a departure from the ordinary course of ordering costs on the standard basis. 
  1. [88]
    In summary, the respondent’s longstanding statutory role in respect of the licence application gave rise to a higher than ordinary responsibility to promptly finalise and disclose the expert evidence to be relied upon and having done so, its responsibility as a litigant was to not depart from its disclosed position. Instead, the hearing having been deferred to allow the respondent’s expert to conduct tests and the respondent then having disclosed its expert’s report and expressly represented that expert would be its expert in the proceeding, the respondent later dishonoured that representation, changed experts and thereby caused a costly dispute on an issue about which there would otherwise have been little or no contest if the respondent had properly discharged its responsibilities in the appeal. The respondent proffered no explanation below or in this court for its conduct. Obviously it had a tactical change of heart and decided the evidence of its nominated expert did not suit the case it wanted to run and it put that partisan consideration ahead of its responsibilities as a litigant.
  1. [89]
    Such conduct, which had very significant cost ramifications for the appellant, warrants a departure from the usual course of ordering costs on the standard basis. The costs to be ordered should be on the indemnity basis.
  1. [90]
    The order below should therefore be substituted with an order that the respondent pay 70 per cent of the appellant’s costs of the appeal below from and including 23 June 2008 on the indemnity basis.

Costs of this appeal 

  1. [91]
    This court may order costs as it considers appropriate.[54] 
  1. [92]
    On the face of it the costs of this appeal ought follow the event and, in the absence of any apparent unreasonableness in the conduct of this appeal, ought be on the standard basis. However the parties expressed a desire to be heard on costs and should be afforded that opportunity by way of written submissions.

Orders

  1. [93]
    I would order:
  1. The appeal is allowed.
  2. The order below is set aside.
  3. The respondent pay 70 per cent of the appellants’ costs of the appeal to the Land Court from and including 23 June 2008 on the indemnity basis.
  4. Submissions as to the costs of this appeal shall be in writing with:
  1. (a)
    the appellants’ written submissions (not exceeding five pages) to be filed and served within 21 days of these orders;
  1. (b)
    the respondent’s written submissions (not exceeding five pages)  to be filed and served within 28 days of these orders; and
  1. (c)
    the appellants’ written submissions in reply (not exceeding two  pages) to be filed and served within 35 days of these orders.

MacDONALD P:   I agree with the reasons and conclusions of Henry J that the appellants should be awarded 70% of their costs of the appeal below from and including 23 June 2008 on the indemnity basis.  I also agree with the orders proposed by Henry J.

MEMBER EVANS: 

Introduction

  1. [94]
    This is an appeal against a decision of the Land Court on costs. Unlike an appeal to the Court of Appeal from the Supreme Court, leave is not required for such an appeal from the Land Court to the Land Appeal Court[55].
  1. [95]
    The Land Court’s decision was to dismiss the appellants’ application made under s 882(4) Water Act 2000 for costs of an appeal to it under s 877 Water Act 2000 in which the appellants had been successful. 
  1. [96]
    The Land Appeal Court had allowed the appellants’ appeal to it against a review decision of the respondent and, inter alia, had directed that a water licence to take 515 ML per annum be granted to the appellants. The review decision overturned had confirmed the respondent’s original decision allowing the water licence but at a much lesser amount of only 80 ML per water year.
  1. [97]
    The appeal to the Land Court was brought under Ch 6 of the Water Act 2000.
  1. [98]
    The costs of that appeal were governed by s 882 Water Act 2000 which provides:

"882 Powers of court on appeal

(1) In deciding an appeal, the court may—

  1. (a)
    confirm the review decision; or
  1. (b)
    set aside the review decision; or
  1. (c)
    amend the review decision in the way the court considers appropriate; or
  1. (d)
    send the matter back to the reviewer and give the directions the court considers appropriate; or
  1. (e)
    set aside the review decision and substitute it with a decision the court considers appropriate.

(2) If the court amends the review decision or substitutes another decision for the review decision, the amended or substituted decision is, for this Act (other than this part) taken to be the reviewer’s decision.

(3) Each party to the appeal must bear the party’s own costs for the appeal.

(4) However, the court may order costs for the appeal, including allowances to witnesses attending for giving evidence at the appeal, as it considers appropriate in the following circumstances—

  1. (a)
    the court considers the appeal was started merely to delay or obstruct;
  1. (b)
    the court considers the appeal, or part of the appeal, to have been frivolous or vexatious;
  1. (c)
    a party has not been given reasonable notice of intention to apply for an adjournment of the appeal;
  1. (d)
    a party has incurred costs because the party is required to apply for an adjournment because of the conduct of another party;
  1. (e)
    a party has incurred costs because another party has defaulted in the court’s procedural requirements;
  1. (f)
    without limiting paragraph (d), a party has incurred costs because another party has introduced, or sought to introduce, new material;
  1. (g)
    a party to the appeal does not properly discharge its responsibilities in the appeal.

(5) If the court makes an order under subsection (4), the court may also order the party ordered to pay costs under subsection (4) to pay to the other party an amount as compensation for loss or damage suffered by the other party because of the appeal if the court considers—

  1. (a)
    the appeal was started merely to delay or obstruct; or
  1. (b)
    the appeal, or part of the appeal, to have been frivolous or vexatious"
  1. [99]
    The appellants sought to bring their case within s 882(4) and sought the costs of the whole appeal on an indemnity basis, or alternatively a standard basis.

Preliminary matter – application to adduce evidence in relation to the appellants Calderbank offer below

  1. [100]
    Prior to this Court commencing the hearing of the appeal, the appellants filed an application pursuant to s 56 Land Court Act 2000 to adduce evidence by way of affidavit in relation to a Calderbank offer.
  1. [101]
    This court dismissed that application and this appeal is to be decided on the material that was before the Land Court in accordance with s 56(1) Land Court Act 2000. The costs of that application were reserved.

The appeal to this Court

  1. [102]
    The appeal to this Court does not derive from any part of the Water Act 2000. Rather, it is derived by virtue of ss 54 and 64 Land Court Act 2000.
  1. [103]
    Section 64 Land Court Act 2000 provides:

"64 Right of appeal to Land Appeal Court

A party to a proceeding in the Land Court may appeal to the Land Appeal Court against all or part of the decision of the Land Court."

  1. [104]
    Section 49A Acts Interpretation Act 1954 provides:

"49A Jurisdiction of courts and tribunals

If a provision of an Act, whether expressly or by implication, authorises a proceeding to be instituted in a particular court or tribunal in relation to a matter, the provision is taken to confer jurisdiction in the matter on the court or tribunal."

  1. [105]
    Section 57 Land Court Act 2000 provides:

"57 Powers of Land Appeal Court

The Land Appeal Court may do 1 or more of the following—

  1. (a)
    suspend the operation of the decision and remit the matter, with or without directions, to the court or tribunal that made the decision to act according to law;
  1. (b)
    affirm, amend, or revoke and substitute another order or decision for the order or decision appealed against;
  1. (c)
    make an order the Land Appeal Court considers appropriate."
  1. [106]
    Section 72 Land Court Act 2000 provides:

"72 Application of certain provisions of pt 2 to Land Appeal Court

(1) Sections 8, 9, 21, 22 and 34 apply, with necessary changes, to the Land Appeal Court.

(2) For subsection (1), a reference in the applied sections to the Land Court is taken to be a reference to the Land Appeal Court."

  1. [107]
    Section 34 Land Court Act 2000 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."

  1. [108]
    Section 882 Water Act 2000 is as extracted above. Clearly, the costs of the appeal in the Land Court were governed by s 882(4).

The appellants’ arguments

  1. [109]
    The appellants delivered lengthy written submissions which were supplemented by oral argument. On the hearing of the appeal, leave was given to amend the notice of appeal to add an additional reference to reliance on s 882(4)(f) Water Act 2000.

This court’s task on appeal

  1. [110]
    As this is an appeal from a judgment dismissing an application for costs, ordinarily this would be seen as being an appeal from a discretionary judgment requiring the appellants to demonstrate an error of the type referred to by the High Court in House v The King[56] before this Court would interfere with the decision below.
  1. [111]
    However, whether a House v The King approach is called for in this case is another matter. Costs could only be awarded at all if the appellants were able to bring themselves within one or more of the matters in ss 882(4)(a) to 882(4)(g) Water Act 2000. Only if this occurred did the Land Court have any power to make a costs order.
  1. [112]
    Reliance below was placed on ss 882(4)(b) and 882(4)(g). On the commencement of the appeal in this Court, the notice of appeal was amended by leave to also place reliance on s 882(4)(f), The amendment was not opposed by the respondent. However, the appellants did not give any notice to the respondent of any intention to rely on any argument based on the condition imposed on the licence granted below having been removed at the time of the respondent adopting this position and this Court giving leave.
  1. [113]
    On one view it might be thought that the question of whether the matter came within one or more of the listed circumstances in s 882(4) involved a question of jurisdiction (in the sense of a pre-condition to an ability to exercise a power), rather than an exercise of discretion and that what is appealed against is a finding that no power was shown under s 882(4) to allow the Land Court to make any order for costs, so that the exercise of any discretion simply did not occur.
  1. [114]
    However, focus must be placed on what the exercise below entailed.
  1. [115]
    In relation to s 882(4)(b) the appellants contended that the appeal was “vexatious” as concerns the conduct of the appeal by the respondent. In similar, but by no means identical, legislation, it has been held that a provision like s 882(4)(b) can extend to conduct by a respondent in its defence of an appeal and can relate to part only of its defence of the appeal[57].
  1. [116]
    The exercise in determining whether that conduct was, or was not, vexatious involved a value judgment based upon a consideration of the same or substantially the same evidence which would inform the court below as to whether to exercise any discretion under s 882(4)(b) to award costs. Given the exercise, it is appropriate for an appellate court to adopt a similar test to that adopted for an appeal seeking to upset the exercise of a discretion.
  1. [117]
    A similar problem was confronted by the High Court in relation to disturbing findings of “jurisdiction” to award further provision for an applicant under family provision legislation before then considering the quantum to be awarded: Singer v Berghouse (No 2)[58].   
  1. [118]
    In Singer v Berghouse (No 2)[59] Mason CJ, Deane and McHugh JJ said:

“The nature of the two-stage inquiry

…

Strictly speaking, however, the jurisdictional question, though it involves the making of value judgments, is a question of objective fact to be determined by the judge at the date of hearing. This conclusion may have consequences in terms of what an appellant needs to demonstrate on appeal, an issue that will be considered shortly.

…  

The task confronting the appellant on appeal

The principles of law which regulate the circumstances in which an appellate court may review the exercise of a judicial discretion are not in doubt: House v The King (1936) 5 CLR 499 at pp 504-505.

However, in the context of family provision cases, the principles governing the review of a decision on the jurisdictional question are not settled. In Goodman v Windeyer (1980) 144 CLR at p 501, Gibbs J did not decide whether an appeal from a decision on the jurisdictional question should be governed by the principles that regulate appeals from decisions made in the exercise of a discretion. Similarly, in Kearns v Ellis unreported, NSW Court of Appeal, 5 December 1984, at pp 8-9, Mahoney JA raised the issue but did not express a concluded view.

Kirby P, by contrast, has held that the principles that govern appellate review of discretionary decisions should apply: Hunter v Hunter (1987) 8 NSWLR, at p 576; Golosky v Golosky (unreported; NSW Court of Appeal, 5 October 1993), at p 15; Singer v Berghouse (unreported; NSW Court of Appeal, 24 July 1992), at pp 12-13. See also White v Barron (1980) 144 CLR, at p 435 per Barwick CJ. In our view, this is the correct approach. In this respect we should express our agreement with the following comments of his Honour in Golosky v Golosky (unreported; NSW Court of Appeal, 5 October 1993), at pp 13-14:

“Unless appellate courts show restraint in disturbing the evaluative determinations of primary decision-makers they will inevitably invite appeals to a different evaluation which, objectively speaking, may be no better than the first. Second, opinions in such cases would be brought at the costs of diminishing the finality of litigation in a troublesome area and, sometimes at least, with a burden of costs upon the estate which should not be encouraged.”

Conclusion

Accordingly, Sheller JA was correct in dealing with the appeal to the Court of Appeal on the footing that it was necessary for the appellant to show that the Master made ‘an entirely erroneous estimate of what, in the circumstances, was an adequate provision for the [appellant’s] proper maintenance, education and advancement in life.’” 

  1. [119]
    In White v Barron[60]  Barwick CJ said:

“Having made these general observations, I should say something about jurisdiction. It seems to me that the jurisdiction to make an order under the Act does turn on the existence of a state of fact. Of necessity, embedded in that question of fact is a value judgment as to what in all the circumstances is adequate maintenance. But that does not mean that the jurisdiction depends entirely on the discretion of the primary judge. A court on appeal, it seems to me, is entitled itself closely to examine the circumstances and for itself to answer the question whether it could reasonably be held that the available maintenance was in all the circumstances inadequate. If such a view is reasonably open great weight must be given to the view of the primary judge which in general should only be overturned, in my opinion, if it is erroneous.”

  1. [120]
    Mudie v Gainriver Pty Ltd(No 2)[61], was an appeal from a decision of the Planning and Environment Court which had refused an application by the appellant for an award  of costs under s 7.6(1A)(a) Local Government (Planning and Environment) Act 1990.
  1. [121]
    McMurdo P and Atkinson J at 283 said:

"[31] The next question is whether his Honour erred in law in determining these proceedings were not frivolous or vexatious. The awarding of costs and the determination of whether a proceeding is frivolous or vexatious involve discretionary considerations with which this Court will not lightly interfere: House v. The King (1936) 55 C.L.R. 499, 504–505.

  1. [122]
    Their Honours also held that:

"[23] It is sensible to deal firstly with the respondents’ arguments set out in their notices of contention that s. 7.6(1A)(a) of the Act only empowers the Planning and Environment Court to make an adverse costs order for an initiating proceeding, not for a defence of proceedings, and, alternatively, that no adverse costs order can be made for part only of an appeal or other proceeding.

[24] Normally costs in civil matters are at the discretion of the court, but ordinarily follow the event. (See, e.g., UCPR ch. 17, pt 2, esp. r. 689). However s. 7.6 of the Act relevantly provides:

“(1) Subject to subsection (1A), each of the parties to an appeal or other proceedings is to bear their own costs.

(1A) The Court may, upon application made to it, order such costs (including allowances to witnesses attending for the purpose of giving evidence at the hearing) as it considers appropriate in the following cases –

  1. (a)
    where it considers the appeal or other proceedings to have been frivolous or vexatious;
  1. (b)
    where a party has not been given reasonable prior notice of intention to apply for an adjournment of an appeal or other proceedings;
  1. (c)
    where a party has incurred costs because another party has defaulted in the procedural requirements;
  1. (d)
    without limiting the generality of paragraph (c), where a party has incurred costs because another party has introduced (or sought to introduce) new material without first giving the party reasonable time to consider the material;
  1. (e)
    where a local government does not take an active part in the proceedings where it has a responsibility to do so..”

[25] The appellant relies only upon (1A)(a) above.

[26] The respondents’ contention is based in part on the decision in Begley v. Pine Rivers Shire Council & Ors [1995] Q.P.L.R. 228 where Skoien S.J.D.C. held that the words of s. 7.6(1A)(a) of the Act only allow the court to exercise a discretion to award costs if the appeal or proceeding as a whole, not just in part, is frivolous or vexatious, not following Hudson Surveys Pty Ltd v Council of the City of Hervey Bay Maryborough P. & E. No. 9 of 1991, 23 June 1992.

[27] The learned primary judge rejected the respondents’ argument pointing out that in the Planning and Environment Court there are no pleadings and proof of an issue may be on a respondent; that respondent may be responsible for bringing forward substantial aspects of the whole proceedings. Tactics or chance might cause one party to file the first application: Mudie v. Gatton Shire Council & Anor, P. & E. Application No. 1387 of 1997, 31 January 2002, pp. 5–6.

[28] Although the interpretation contended for by the respondents is arguably open on a literal interpretation of the words in s. 7.6 (1A)(a), the interpretation which achieves the purpose of the Act is to be preferred, (Section 14A, Acts Interpretation Act 1954; Project Blue Sky Inc. v. A.B.A. (1998) 194 C.L.R. 355, 382,390–391) especially where the literal interpretation produces an odd result. No clue as to legislative intent is provided in the Act’s Second Reading speeches either when the Act was first passed or when this section was subsequently amended to add the words “or other proceedings” after “appeal” in s. 7.6(1).

[29] The objectives of the Act are:

“(a)to provide a code by which a local government or the Minister may undertake the planning of an area to facilitate orderly development and the protection of the environment; and

  1. (b)
    to provide an adequate framework for a person to apply for approval in respect of a development proposal and to provide for appropriate appeal rights in respect thereof.” Section 1.3.

[30] The subparagraphs of s. 7.6 (1A) suggest the legislative intent is to give the court a power to award costs to compensate a party disadvantaged by the unmeritorious conduct of another party, as particularised in those subparagraphs. The legislature must have intended to give the courts a discretion to award costs when any party conducts the proceedings in a way that is frivolous or vexatious; it could not have intended that respondents who behave in such a way should be immune from a costs order against them. To accede to the respondents’ contention would mean that a wealthy and powerful respondent could vexatiously and oppressively prolong proceedings causing the financial ruin of a worthy but less wealthy and less powerful appellant or applicant. We are not prepared to give the subsection such an unattractive meaning which would weaken the rule of law. A respondent is not immune from a costs order under s. 7.6 (1A)(a). Nor should s. 7.6 (1A)(a) be interpreted as limited to instances where the conduct of the entire appeal or proceedings is vexatious or oppressive; it extends to awarding costs to reflect a party’s conduct of proceedings which is in part vexatious or oppressive… Both objectives of the Act favour such an interpretation. The notices of contention are without substance.

  1. [123]
    It was the common position of the appellants and the respondent both here and below that, notwithstanding the different wording of ss 882(3), 882(4) Water Act 2000 to s 7.6 Local Government (Planning and Environment) Act 1990 that s 882(4)(b) ought be interpreted in the same way as in Mudie and that the meaning to be given to “frivolous or vexatious” in s 882(4)(b) was the same as that given to these words by McMurdo P and Atkinson J .
  1. [124]
    It seems to me that this may not necessarily be the case. I leave open whether the differences between s 7.6 and s 882 dictate a different result. This Court has warned previously about unthinkingly transposing cases straight from the Planning and Environment Court as governing the interpretation of similar but different statutory provisions in matters in this jurisdiction as this can sometimes result in error by failing to pay sufficient and proper regard to the specific provision at hand. In this respect s 882 contains the compensation provisions in s 882(5) which are not contained in s 7.6 at all. Compensation can be awarded where an order is made under s 882(4) and the court considers that the appeal was started merely to delay or obstruct (which mirrors the costs trigger in s 882(4)(a)) or “the appeal, or part of the appeal, to have been frivolous or vexatious” (which mirrors the costs trigger in s 882(4)(b)). The other matters in s 882(4)(c) to 882(4)(g) do not give rise to any claim for compensation. None of the circumstances in s 7.6 gave rise to same. It may be that given the potential liability to an award of compensation under s 882(5) (in addition to costs) for a case falling within s 882(4)(b) that this affects, and gives a different colour to the interpretation of s 882(4)(b) which the legislature treats differently and more harshly than the treatment in s 7.6(1A)(a) (costs only) and that this might suggest a narrower or different meaning to these words than was given to them by McMurdo P and Atkinson J in Mudie. 
  1. [125]
    It is also to be noted that obviously the objects of the Water Act 2000 are not the same as those of the (now repealed) Local Government (Planning and Environment) Act 1990 although it is fair to say when it comes to water licences the objects of the system for the allocation of same could be said to be of an analogous type and that this may not be a bar to the application of Mudie.
  1. [126]
    That said, there is obvious force in the observations made by all of the judges in Mudie that the cases dealing with the meaning of “frivolous or vexatious” in the context of applications to strike out or stay proceedings are necessarily brought at an early stage in the proceedings when the facts have not been found, unlike cases involving the application of provisions like s 882(4)(b) after the hearing of the appeal. It is also of note that, in the different context of the meaning of these words in r 389A UCPR it has been held that the words bear their ordinary meaning, although, prima facie, the issue of two sets of proceedings for the same relief, of itself, is indicative of vexation[62].  That said, it may well be that the “ordinary meaning” is the proper interpretation. 
  1. [127]
    The respondent was content for this Court to proceed on the basis of the broader construction given in Mudie. His Honour below noted the legislative provisions were different, and there was certainly no unthinking transposition of Mudie, however, neither the learned member below nor this Court had the benefit of argument as to the effect of any differences. Given the position adopted by the parties I say no more about this.
  1. [128]
    As to whether a House v The King approach should be taken on the appeal to this Court in relation to the other parts of s 882(4) other than s 882(4)(b) is another question. Some of the listed circumstances are of a more definitive nature such as s 882(4)(e) dealing with the situation where “a party has incurred costs because another party has defaulted in the court’s procedural requirements”. This is easily determinable on an objective basis and so could not be said to involve value judgments in determining jurisdiction, or more precisely power, to award costs in the first place. That said, the discretion in then awarding or not awarding costs and perhaps the quantum awarded are discretionary matters which would invoke a House v The King approach on appeal. That said, the quantum available to be awarded may also have a jurisdictional aspect to it as well for the reasons set out at [228]-[236] of my judgment in Gallo (No 2).    
  1. [129]
    In this case, ss 882(4)(f) and s 882(4)(g) are also sought to be invoked.
  1. [130]
    It seems to me that in determining the matters to be considered in s 882(4)(g) as to whether a party to the appeal has not properly discharged its responsibilities in the appeal also involves value judgments which can be of a discretionary nature at the jurisdiction stage. House v The King applies.
  1. [131]
    I am not sure the same can be said of s 882(4)(f) which is of a more definitive nature: “a party has incurred costs because another party has introduced, or sought to introduce new material.”
  1. [132]
    However, the words “new material” in s 882(4)(f) affect the application of the provision.
  1. [133]
    As discussed in Gallo (No 2),[63]:

"As to the meaning of “new material” in s 882(4)(f) on one view it might be that “new material” means any material that was not before the reviewer who made the review decision, so in that sense it is “new material” so far as the appeal to the Land Court is concerned. This would be a very broad interpretation of this provision and in practice most (if not all) cases would involve the introduction of “new material” in this sense…"

  1. [134]
    That said, if this is the correct interpretation, the question of jurisdiction in the sense of power to award, would be easily determinable, although then the ultimate application of s 882(4)(f) would in most, if not all, cases involve an exercise of discretion, rather than of power.
  1. [135]
    As also noted in Gallo (No 2):

"Another interpretation of “new material” is “new” in the sense that it does not arise out of what was before the reviewer and is not merely further material (whilst perhaps of a more detailed or comprehensive nature) supplementing and filling out what was there before but is material which is not of the same nature as that put before the reviewer…

Another interpretation again might be that s 882(4)(f) is focused on the proceedings in the Land Court. If that is the case, the words “new material” would take on a different and more limited meaning directed to “new” in the sense of “new” to the Land Court.

As the practice of the Land Court is to make directions about evidence before the hearing of the appeal, “new material” in this sense would mean material not provided and notified in the ordinary course of the preparation of the appeal for hearing or material introduced (or sought to be introduced) on the hearing not previously notified. I incline to this view, although I am of the view this also extends to a situation where a party has led another party to believe that a particular expert will be nominated as its expert and a different expert is engaged, even though this occurs prior to the time the party is called upon by directions to nominate its experts. The reasons I am of the view this is the correct interpretation are as follows:

  1. (1)
    the appeal to the Land Court is an appeal by way of hearing de novo. New material that was not before the reviewer is likely to be present, in most, if not all cases. The Land Court appeal is to be decided on a basis unaffected by the reviewer’s decision: s 880(2) Water Act 2000.
  2. (2)
    ss 882(3) and 882(4) are plainly intended to limit the occasions on which costs can be awarded. A broad interpretation of “new material” would defeat this;
  3. (3)
    a more limited interpretation is called for consistent with the intention of these provisions;
  4. (4)
    this interpretation is consistent with this intention
  5. (5)
    this interpretation best promotes the purpose of these provisions;
  6. (6)
    whilst this is the interpretation of a power, sometimes the context does matter and this is one of those cases where it does."
  1. [136]
    As s 882(4)(f) was not relied upon below, unsurprisingly the question of what was the meaning of “new material” was not addressed below.
  1. [137]
    The respondent did not in the end object to any reliance on s 882(4)(f) on appeal, but in circumstances where the appellants did not disclose any intention to rely on the subsequent decision of the Land Court varying its earlier judgment to remove the monitoring condition imposed below.

The notice of appeal

  1. [138]
    The notice of appeal, where it sets out the “Grounds of Appeal”, is not a document which commends itself as a model for any litigant to use.
  1. [139]
    The “Grounds of Appeal” extend to some 45 separate numbered paragraphs over some seven and a half pages.
  1. [140]
    The purpose of providing for the notice of appeal to contain the grounds of appeal is so that an appellant can succinctly give notice of the basis for the appeal to both the Land Appeal Court and the respondent. The purpose is not to engage in argument or make substantive submissions or even any submissions. The bases or grounds for the appeal are to be stated; nothing less, and nothing more.
  1. [141]
    The appropriate time for submissions in support of the grounds of appeal is when the parties, in accordance with the directions of this Court, are required or permitted to file and serve written submissions and at any oral hearing of the appeal.
  1. [142]
    This Court and the respondent ought not be required to trawl through a document like the one in the present case to distil the grounds of appeal for themselves. One is reminded of the remarks of Martin J (albeit in a different context) in Pinehurst Nominees Pty Ltd v Coeur De Lion Investments Pty Ltd[64]  adopting the colourful statement in United States of America v Dunkel[65]  which are of resonance here.
  1. [143]
    A succinct statement of the grounds helps not only this Court and the respondent, but also the appellant to focus upon what is the basis for the appeal. The discipline which this engenders may also assist an appellant in recognising whether a ground is truly a ground at all or whether it is worth pursuing.
  1. [144]
    Paragraph 1 of the forty-five numbered paragraphs of the “Grounds of Appeal” sets out what comes closest to a statement of the grounds. It states:

“1. There are three issues in the reasons for decision delivered on 23 August 2013 (the Reasons), material to the outcome of the hearing that were errors of law:

i)no, or inadequate, reasons have been given as to whether there was “expert shopping”:

…

ii)the failure to provide disclosure and properly brief an expert; and

iii)the exercise of the discretion to award costs was based upon how the forms for the ‘Application for Licence to Take Water’ were completed by Gallo and Williams without reference to the whole of that document and the whole of the evidence.”

  1. [145]
    Then follows some 13 separate paragraphs under the heading “Expert Witness Shopping”[66] which largely contain submissions, but which in paragraphs [14] and [15] might be thought to contain separate and different grounds from [1] as follows:

“14 To adopt the submissions of the Respondent at its paragraph 13(d), set out in the Reasons at paragraph [29] is an error of law, in that it avoids a consideration of the fundamental issue of expert witness shopping and its effect in providing different expert witness evidence before the court.

15. Had the Court found that the Respondent had been expert witness shopping it ought to have also found, in relation to ordering costs, that the Respondent’s conduct was caught by sections 882(4)(b), (f)[67] and (g) of the Water Act 2000.”

  1. [146]
    There then follow some 18 further numbered paragraphs[68] under the heading “Failure to Disclose and Brief Experts Appropriately” much of which comprise submissions. The grounds though seem to be at [16], [32] and [33] as follows:

“16.Failure to disclose documents relevant to the issues in dispute and to properly brief experts with all relevant documents relating to the issues in dispute can be characterised as conduct under section 882(4)(b)&(g) of the Water Act 2000.

32.The Respondent did not satisfy its obligation to make disclosure and did not fully brief its expert with all necessary material for the purpose of the hearing.

33.This is the conduct that the Appellant says can be characterised as conduct under section 882(4)(b)&(g) of the Water Act 2000.”

  1. [147]
    There then follow another twelve further numbered paragraphs[69] under the heading “Discretion to Award Costs and Earlier Error of Law Carried Forward”, much of which contain submissions. The grounds though for this seems to be as originally expressed in [1] and in addition new grounds not found in [1] that:

44.The exercise of the discretion has been tainted by an error of law carried forward from the Reasons dated 5 April 2012

45.As a consequence of the findings of the Court, as set out in the Reasons, the Court did not consider a Calderbank offer.”

  1. [148]
    In their written submissions in reply, the appellants state in paragraph 2 in part:

“...the appellants’ submissions are predicated upon the errors of law identified in the ground of appeal, which can be summarised as:

(a)No or inadequate reasons in relation to the conduct, nomination and  subsequent abandonment of the expert witness Lait, and thereby failing to               take account of relevant considerations and weight to irrelevant               considerations or assumptions not supported by evidence;

(b)Mischaracterised the failure to disclose notwithstanding the relevance of the  material to fairness and conduct;

(c)Miscarried the proper exercise of the discretion as to costs by having undue  regard to the conduct and comparison of the               Gallo appeal;

(d)Failure to properly consider the Calderbank offer and related conduct.”

The court’s approach to applying s 882 Water Act 2000

  1. [149]
    I adopt what I have said about this in my judgment in Gallo (No 2) in this court at [227]-[245].
  1. [150]
    As to s 882(4)(f), the effect of the “new material” must also be able to be viewed in context. I adopt what is said in my judgment in Gallo (No 2) in this court at [298]-[310]. 

The decision below 

  1. [151]
    The decision given below was given at a time prior to this Court having delivered its judgment in Gallo v Department of Environment and Economic Management[70].
  1. [152]
    In Gallo this Court held that the learned member had erred, inter alia, in deciding the appeal in Gallo by distinguishing between the way in which the Gallo appellants had filled in their application for a water licence as compared to the way in which the present appellants had.
  1. [153]
    In the judgment below his Honour said:

"[43] I should make one additional closing observation which I also made in the original reasons for judgment. This was also referred to by Mr Hinson SC and Dr Sammon in their submissions extracted above. In not an insignificant manner, the ultimate decision in Williams and Gallo turned on a clear distinction in the facts of the original Williams application documents as opposed to that to be found in the Gallo application documents and, indeed, in the De Tournouer application documents. Counsel for both Williams and DERM proceeded throughout the hearing on the basis that the application documents in Williams were in all respects the same as the application documents in Gallo and De Tournouer. It was only upon undertaking my own close examination of the application documents in Williams that I found a clear distinction between the Williams application documents and the De Tournouer and Gallo application documents. Had the Williams application documents been deficient in the same way in which the De Tournouer and Gallo application documents were, and had there been a subsequent disconnect between the application documents and the evidence as to use of the proposed water from the water licence as was the case with the evidence in De Tournouer and Gallo, then I can say without any shadow of doubt that like Gallo, the application by Williams would also have failed. This is a factor which, in my view, cannot be passed over lightly when exercising my discretion as to costs. It is an important feature as to how the legal representatives for both parties ran the Williams case."

  1. [154]
    Clearly, his Honour took this consideration into account in dismissing the appellants’ application for costs under s 882(4) Water Act 2000. This consideration was irrelevant and ought not to have been taken into account. Effectively it seems to have been a finding that these appellants only succeeded below by the skin of their teeth and because fortuitously they had filled in the application more fully. This permeated his Honour’s findings on vexation and in another sense generally in terms of discretion. His Honour regarded this as something which could not “be passed over lightly when exercising my discretion as to costs. It is an important feature…”  
  1. [155]
    Accordingly his Honour’s decision on costs was attended by error and this court may re-examine the matter afresh and, if satisfied there is jurisdiction to do so, exercise any discretion about costs itself.
  1. [156]
    His Honour also dealt with the Calderbank offer (or what is accepted by the parties as being one) as relevant only to the question of whether costs could be awarded on an indemnity or standard basis. This was by reason of the way this case was argued below. His Honour said:

"[27] In the manner in which the question of the Calderbank offer has been argued by Mr Allan, it is apparent that it is first necessary for Williams to get past the threshold point of an award of costs being appropriate pursuant to s.882 of the Water Act. It is only if it is appropriate that an award of costs in Williams favour be made that consideration is then given as to whether or not the Calderbank offer gives rise to a determination that those costs should be payable on an indemnity basis.

[28] For reasons which will become clear later in this decision, it is unnecessary to give further consideration to the Calderbank offer as my conclusion with respect to s.882 is, ultimately, that Williams has failed to show that the provisions of s.882(4) are enlivened."

  1. [157]
    On appeal, the appellants did not seek to depart from this approach.
  1. [158]
    That said, nothing in this judgment is to be taken as giving any acceptance to such an approach. To be fair to his Honour below, I do not read his judgment as giving it any acceptance either.
  1. [159]
    If nothing else appeared and all a party had to rely on in an application for costs under s 882(4) was a Calderbank offer which had not been beaten and which had been unreasonably refused, such conduct of itself could give rise to the trigger in s 882(4)(g) Water Act 2000 on the basis that the respondent to the offer did not properly discharge its responsibilities in the appeal and might give rise to an order for costs. An approach which ignores the consideration of such offers unless and until the stage is reached where an applicant has first demonstrated some other trigger not related to the offer, and then relegates the offer’s consideration to whether the costs imposed for such other trigger ought be awarded on a standard or an indemnity basis, is an erroneous one.
  1. [160]
    His Honour, adopting the approach urged on him by the appellants below, and persisted in by them in this Court, summarised the appellants’ points below as:

"[14] In broad terms, the case for Williams falls under three general points:

  1. (a)
    DERM engaging in "expert shopping" until it found expert hydrology evidence which supported its contentions.
  1. (b)
    Failure by DERM to provide disclosure of documents concerning previous water applications within Area B.
  1. (c)
    Failure by DERM to comply with the statutory and regulatory regime with respect to previous applications for water licences within Area B."

Re-exercise afresh by this Court of the discretion as to costs if jurisdiction to do so shown

Some restrictions

  1. [161]
    The appellants must bring themselves within one or more of the triggers in s 882(4) in order to show any entitlement for an exercise of discretion in relation to costs below.
  1. [162]
    It ought be firmly borne in mind the nature of the appeal before this Court in determining this issue. Whilst this is an appeal by way of re-hearing, this court is bound by s 56 Land Court Act 2000 to the extent that it is applicable.
  1. [163]
    In my view, the reliance by the appellants in this court on the decision in Williams v Chief Executive, Department of Environment and Resource Management[71]  by simply handing up a copy of same in oral argument in this court as proof that the interconnectivity evidence caused by the respondent’s change of expert had been rendered, in a practical sense, academic or non-genuine, ought not be permitted.
  1. [164]
    This was not relied upon below. No evidence about it was led below. No evidence about it appears in the appeal books. No application was made by the appellants to lead evidence about it here. Had they done so this would have attracted the hurdles in s 56 Land Court Act 2000. The costs judgment under appeal to this court did not deal with any argument based on it. Even in this court the appellants did not in their written submissions, filed and served well before the hearing of oral argument in the appeal, make any reference to it. It was an entirely new development of which the respondent was not on notice and had no opportunity to lead evidence about or to deal with it in any considered way. Had the judgment been relied upon below the respondent may well have wished to give evidence surrounding the timing of when it became technically unfeasible and why it was technically unfeasible.
  1. [165]
    It is not clear to me from the judgment itself (if reference can, or should, be had to it) as to when the problems with technical feasibility of the monitoring condition arose. If they arose after the determination of the appeal below, then that places an entirely different light on things. If they were in existence all along, then it is difficult to see how the appellants could have relied on Mr Smith’s evidence countering Dr Evans’ evidence that Dr Evans’ concerns could be dealt with by the imposition of the condition or how the court below had jurisdiction to vary its judgment. Further, if the respondent had led such evidence below, the finding about interconnectivity existing but the extent not being known might have caused further problems for the appellants in that his Honour would not have been able to get over this in the way he did by imposing the condition. In the circumstances, I am of the view that even if the judgment is somehow admissible in this court, the appellants cannot or ought not be permitted to rely upon the judgment for the determination of the costs in the Land Court proceedings.
  1. [166]
    The appellants in this case did seek to supplement the evidence on the hearing of this appeal and brought an application under s 56 Land Court Act 2000 which failed. That application did not include any material relating to the variation of the judgment to delete the monitoring condition.
  1. [167]
    Whilst the case was handed up without objection, in my view it would not be appropriate to act on it in these circumstances.
  1. [168]
    In any event, it seems to me that the judgment itself does not take the matter as far as showing that the evidence led from Dr Evans and Mr Smith about interconnectivity was rendered practically academic. I refer to [222] to [226] of my judgment in Gallo (No 2) which is applicable here. 
  1. [169]
    I regret for these reasons I am unable to agree with the approach taken by Henry J. I refer also to my reasons in Gallo (No 2) at [286] to [287] which summarise my reasons for departure from the majority judgments. 

Determination of the costs in the Land Court

  1. [170]
    As to expert shopping, the complaint made below and repeated here was that the respondent had indicated to the appellants in correspondence that it would use an hydrologist, Mr Lait, and then used a different expert hydrologist Dr Evans. At issue on the appeal was the interconnectivity between water flows for Peterson Creek and the aquifer relating to the appellants. It was contended that Mr Lait’s evidence would have been in accordance with the expert for the appellants, a Mr Smith but that the respondent walked away from Dr Lait and used Dr Evans instead who had a different view about interconnectivity. This dispute then took up the bulk of the hearing of the appeal.
  1. [171]
    In essence the appellants contended that this conduct triggered both s 882(4)(b) and s 882(4)(g) Water Act 2000 and was so bad that it entitled an award for costs on the indemnity basis. No case was run below based on s 882(4)(f) but this conduct was also relied on here for a breach of s 882(4)(f).
  1. [172]
    His Honour held that he was not satisfied that the respondent had engaged in expert shopping and stated:

That is, it is not appropriate for a model litigant to shop around experts until it ultimately finds an expert who supports, at least in some way, the model litigant's case. However, while I am prepared to follow the decision in Bates, that does not itself mean that I am satisfied on a close examination of this case that DERM has engaged in 'expert shopping’..

  1. [173]
    I agree with Henry J as to the background and views expressed at [49]-[63] save that Mr Lait was contending for no interconnectivity.
  1. [174]
    I also refer to the detailed discussion of the law on this issue at [273] to [282] of my judgment in Gallo (No 2).
  1. [175]
    There was no real difference in terms of the underlying facts relating to this issue between this case and the Gallos. Both appeals were run together with the same solicitors acting for both these appellants and the Gallos. Accordingly, I adopt here what I said in Gallo (No 2) at [273]-[282] noting that the relevant creek in relation to these appellants was Peterson Creek and not Leslie Creek.
  1. [176]
    In my view it would be inappropriate to characterise the running of the issue of interconnectivity relating to the Williams as academic on the basis of the evidence to which this court can or ought have regard and the way the case for costs was run both in the Land Court and here.
  1. [177]
    That said some costs were wasted by the respondent’s conduct. The reasoning in Gallo (No 2) at [286] to [313] is applicable here and for those reasons I find a breach of s 882(4)(f) and s 882(4)(g). Under s 882(4)(g) I would award the appellants their costs which were wasted by the respondent changing its expert from Mr Lait to Dr Evans to be assessed on the standard basis. Specifically in relation to s 882(4)(g), whilst there was no breach of the court’s directions, the obligation which the respondent breached in the appeal was changing experts, after leading the appellants to believe over a considerable period of time that Mr Lait would be its expert. This wasted some costs. In my view, if nothing else, this was a breach of the obligation to act expeditiously to minimise costs. The respondent gave no sworn explanation for the change, notwithstanding the costs sought against it by the appellants were of a substantial amount.
  1. [178]
    I would also order the respondent to pay 50% of the costs of the appellants establishing the factual basis for the unfairness issue on the standard basis for the reasons given at [315]-[331] in Gallo (No 2) which apply equally.
  1. [179]
    As to the Calderbank offer, I agree with the reasons of Henry J at [25]-[36]. In addition I refer to [336] of my judgment in Gallo (No 2) which is equally applicable here. 
  1. [180]
    As to s 882(4)(b), I do not consider that any breach of this provision has been shown. The reasons in Gallo (No 2) at [246] to [256] and [314] apply here and I adopt those reasons for so finding.
  1. [181]
    I agree with the views expressed by Henry J at [22]-[24] and [37]-[41].
  1. [182]
    I am otherwise unpersuaded by any of the other arguments advanced by the appellants for costs.
  1. [183]
    As to the costs of the unsuccessful application to adduce further evidence under s 56 Land Court Act 2000 submissions have already been made about this and they have been reserved. I think it appropriate to rule on these costs when this court makes final orders about the costs in this Court and the costs of the application for costs below.  

Disposition

  1. [184]
    Accordingly, the orders I propose are:
  1. The appeal is allowed.
  2. The order below is set aside.
  3. The respondent pay the appellants 50% of the appellants’ costs in the Land Court of establishing the factual basis for the unfairness issue against the respondent to be assessed on the standard basis.
  4. The respondent pay the appellants their costs which were wasted by the respondent changing its expert from Mr Lait to Dr Evans to be assessed on the standard basis.
  5. Submissions as to the costs of their appeal shall be in writing with:
  1. (a)
    the appellants’ written submissions (not exceeding five pages) to be filed and served within twenty-one (21) days of these orders;
  2. (b)
    the respondent’s written submissions (not exceeding five pages) to be filed and served within twenty-eight (28) days of these orders; and
  3. (c)
    the appellants’ written submissions in reply (not exceeding two pages) to be filed and served within thirty-five days (35) of these orders.  

ORDERS:

  1. The appeal is allowed.
  2. The order below is set aside.
  3. The respondent pay 70 per cent of the appellants’ costs of the appeal to the Land Court from and including 23 June 2008 on the indemnity basis.
  4. Submissions as to the costs of this appeal shall be in writing with:
  1. (a)
    the appellants’ written submissions (not exceeding five pages) to befiled and served within 21 days of these orders;
  1. (b)
    the respondent’s written submissions (not exceeding five pages) to be filed and served within 28 days of these orders; and
  1. (c)
    the appellants’ written submissions in reply (not exceeding two pages) to be filed and served within 35 days of these orders.

HENRY J

CAC MacDONALD

PRESIDENT OF THE LAND COURT

MD EVANS

MEMBER OF THE LAND COURT

Footnotes

[1]  Vol 9 p 2060.

[2]  Plan s 11(2)(b)(c).

[3]  Vol 6 p 1397.

[4]  Vol 6 p 1413.

[5]  Vol 6 p 1394.

[6]  Vol 6 p 1395.

[7]  Vol 6 p 1397.

[8]  Vol 6 p 1417.

[9]  [2012] QLC 24.

[10]  Vol 9 p 2110.

[11]  De Tournouer v Chief Executive Dept. of Environment and Resource Management [2011] 1 Qd R 200, 207.

[12]  Appellant’s written submissions in reply.

[13]  (1936) 55 CLR 499.

[14]  Appellants’ Outline of Submissions [11].

[15] Chrismel v Department of Natural Resources and Mines [2005] 26 QLCR 87, 95.

[16]  Appellants’ Outline of Submissions [18].

[17]  [2005] 26 QLCR 87.

[18]  Vol 9 p 2027.

[19]  Vol 9 p 2028.

[20]  Vol 9 p 2029.

[21] Calderbank v Calderbank [1976] 3 All ER 333.

[22]  Appellants’ Outline of Submissions [112].

[23]  Vol 3 p 487.

[24]  Vol 4 p 781.

[25]  Vol 4 p 790; Vol 4 p880.  That is apparent from a report of Mr Sutherland of February 2010 and the statement of Dr Watts of 9 April 2010.

[26]  Vol 7 p 1458.

[27]  Vol 7 p 1488.

[28]  Vol 9 p 2108.

[29]  Vol 9 p 2108-9.

[30]  Vol 7 p 1435-6.

[31]  Vol 7 pp 1437-8.

[32]  Vol 7 p 1439.

[33]  Vol 7 pp 1439-1440.

[34]  Vol 7 p 1443.

[35]  Vol 7 p 1447.

[36]  Vol 7 pp 1447-8.

[37]  Vol 7 pp 1447-8.

[38]  Vol 7 p 1528.

[39]  [2008] QLC 0151.

[40]  Vol 3 p 547.

[41]  Vol 3 p 568.

[42]  Vol 7 pp 1457-8.

[43]  Vol 7 p 1459.

[44]  Vol 7 pp 1485-1487.

[45]  Vol 9 p 2107.

[46] Chrismel v Dept. of Natural Resources and Mines [2005] 26 QLCR 87, 97.

[47] Mudie v Gainriver Pty Ltd (No 2) [2003] 2 Qd R 271.

[48]  T1-39 L7.

[49]  T1-38 L25.

[50]  [2012] QLC 24.

[51]  As the respondent’s counsel properly acknowledged T1-77 L36.

[52] Colgate Palmolive v Cussons (1993) 118 ALR 248.

[53]  See for instance the examples listed in the often cited case of Colgate Palmolive v Cussons (1993) 118 ALR 248, 257.

[54] Land Court Act 2000 (Qld) ss 34, 72.

[55]  See s 64 Supreme Court of Queensland Act 1991 which is the current modern version in Queensland of s 49 Judicature Act 1873 (UK) and s 118B District Court of Queensland Act 1967 in relation to the District Court. It seems anomalous that there is no similar requirement for costs only appeals to the Land Appeal Court especially given provisions such as ss 882(3) and 882(4) Water Act 2000 and s 34 Land Court Act 2000.

[56]  (1936) 55 CLR 499, 504-505.

[57] Mudie v Gainriver Pty Ltd (No 2) [2003] 2 Qd R 271 interpreting s 7.6 Local Government (Planning and Environment) Act 1990.

[58]  (1994) 181 CLR 201.

[59]        (1994) 181 CLR 201, 211-212.

[60]  (1980) 144 CLR 431, 434-435.

[61]  [2003] 2 Qd R 271.

[62] Mbuzi v Hall [2010] QSC 359, [31]-[32]; Lu v Petrou [2001] QSC 57, [46]-[53] .

[63]  At [302]

[64]  [2012] QSC 314, [29].

[65]  927 F 2d 955 (7th Cir 1991), 956.

[66]  Paragraphs [2]-[15]

[67]  The reference to (f) was added by leave at the hearing before this Court. However, the appellants did not file and serve any amended notice of appeal and did this orally.

[68]  Paragraphs [16]-[33]

[69]  Paragraphs [34]-[45]

[70]  (2013) 34 QLCR 371. 

[71]  [2012] QLC 24.

Close

Editorial Notes

  • Published Case Name:

    Williams v Department of Environment and Resource Management

  • Shortened Case Name:

    Williams v Department of Environment and Resource Management

  • MNC:

    [2014] QLAC 10

  • Court:

    QLAC

  • Judge(s):

    Henry J, MacDonald P, Member Evans

  • Date:

    18 Dec 2014

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Begley v Pine Rivers Shire Council & Ors [1995] QPLR 228
1 citation
Jump To
Cite 1 - [1995] QPLR 228
Calderbank v Calderbank (1976) 3 All ER 333
2 citations
Jump To
Cite 1 - (1976) 3 All ER 333
Cite 2 - (1976) 3 All ER 333
Chrismel v Department of Natural Resources and Mines (2005) 26 QLCR 87
4 citations
Jump To
Cite 1 - (2005) 26 QLCR 87
Cite 2 - (2005) 26 QLCR 87
Cite 3 - (2005) 26 QLCR 87
Cite 4 - (2005) 26 QLCR 87
Colgate-Palmolive v Cussons (1993) 118 ALR 248
3 citations
Jump To
Cite 1 - (1993) 118 ALR 248
Cite 2 - (1993) 118 ALR 248
Cite 3 - (1993) 118 ALR 248
De Tournouer v Chief Executive, Department of Environment and Resource Management[2011] 1 Qd R 200; [2009] QCA 395
2 citations
Jump To
Cite 1 - [2011] 1 Qd R 200
Cite 2 - [2011] 1 Qd R 200
De Tournouer v Chief Executive, Department of Natural Resources and Water [2008] QLC 151
2 citations
Jump To
Cite 1 - [2008] QLC 151
Cite 2 - [2008] QLC 151
Fraser Property Developments Pty Ltd v Sommerfeld[2005] 2 Qd R 394; [2005] QCA 134
1 citation
Jump To
Cite 1 - [2005] 2 Qd R 394
Gallo & Williams v Chief Executive (2012) 33 QLCR 180
1 citation
Jump To
Cite 1 - (2012) 33 QLCR 180
Gallo v Department of Environment and Resource Management (2013) 34 QLCR 371
2 citations
Jump To
Cite 1 - (2013) 34 QLCR 371
Cite 2 - (2013) 34 QLCR 371
Gallo v Department of Environment and Resource Management (No. 2) [2014] QLAC 11
1 citation
Jump To
Cite 1 - [2014] QLAC 11
Goodman v Windeyer (1980) 144 C.L.R 490
1 citation
Jump To
Cite 1 - (1980) 144 C.L.R 490
House v The King (1936) 55 CLR 499
4 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
Cite 3 - (1936) 55 CLR 499
Cite 4 - (1936) 55 CLR 499
House v The King (1936) 5 CLR 499
1 citation
Jump To
Cite 1 - (1936) 5 CLR 499
Hudson Surveys Pty Ltd v Council of the City of Hervey Bay [1992] QPEC 38
1 citation
Jump To
Cite 1 - [1992] QPEC 38
Mbuzi v Hall [2010] QSC 359
2 citations
Jump To
Cite 1 - [2010] QSC 359
Cite 2 - [2010] QSC 359
Mudie v Gainriver Pty Ltd[2003] 2 Qd R 271; [2002] QCA 546
5 citations
Jump To
Cite 1 - [2003] 2 Qd R 271
Cite 2 - [2003] 2 Qd R 271
Cite 3 - [2003] 2 Qd R 271
Cite 4 - [2003] 2 Qd R 271
Cite 5 - [2003] 2 Qd R 271
Mudie v Gatton Shire Council & Gainriver Pty Ltd [2002] QPEC 30
1 citation
Jump To
Cite 1 - [2002] QPEC 30
Permanent Trustee Australia Ltd v Danecrest Property Holdings Pty Ltd & Ors [2001] QSC 57
2 citations
Jump To
Cite 1 - [2001] QSC 57
Cite 2 - [2001] QSC 57
Pinehurst Nominees Pty Ltd v Coeur De Lion Investments Pty Ltd [2012] QSC 314
2 citations
Jump To
Cite 1 - [2012] QSC 314
Cite 2 - [2012] QSC 314
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
1 citation
Jump To
Cite 1 - (1998) 194 C.L.R 355
Singer v Berhouse (1994) 181 C.L.R 201
3 citations
Jump To
Cite 1 - (1994) 181 C.L.R 201
Cite 2 - (1994) 181 C.L.R 201
Cite 3 - (1994) 181 C.L.R 201
US v Dunkel (1991) 927 F 2d 955
1 citation
Jump To
Cite 1 - (1991) 927 F 2d 955
White v Barron (1980) 144 CLR 431
1 citation
Jump To
Cite 1 - (1980) 144 CLR 431
White v Barron (1980) 144 CLR 432
1 citation
Jump To
Cite 1 - (1980) 144 CLR 432
Williams v Chief Executive, Department of Environment and Resource Management [2012] QLC 24
4 citations
Jump To
Cite 1 - [2012] QLC 24
Cite 2 - [2012] QLC 24
Cite 3 - [2012] QLC 24
Cite 4 - [2012] QLC 24

Cases Citing

Case NameFull CitationFrequency
Gallo v Department of Environment and Resource Management (No. 2) [2014] QLAC 112 citations
GPT RE Limited v Valuer-General (No 3) [2019] QLC 82 citations
Jensen v Valuer-General [2024] QLAC 32 citations
Jensen v Valuer-General (No 3) [2023] QLC 193 citations
Williams v Chief Executive, Department of Environment and Resource Management (No 2) [2015] QLAC 15 citations
1

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