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

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

LAND APPEAL COURT OF QUEENSLAND

CITATION:

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

PARTIES:

FILOMENA GALLO,

FRANCESCO RALPH GALLO, and

JOHN PETER GALLO

(appellants)

v

CHIEF EXECUTIVE, DEPARTMENT OF ENVIRONMENT AND RESOURCE MANAGEMENT

(respondent)

FILE NO:

Appeal No. LAC005-12

Land Court No. WAA021-07

ORIGINATING COURT:

Land Court of Queensland

PROCEEDING:

Appeal

DELIVERED ON:

18 December 2014

DELIVERED AT:

Cairns

HEARD ON:

29 April 2014

HEARD 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.

ORDERS:

  1. The respondent pay 85% of the appellants' costs of the appeal to the Land Appeal Court, to be assessed on the standard basis.
  2. The respondent pay 70% of the appellants' costs of the appeal to the Land Court from and including 23 June 2008 on the indemnity basis.

CATCHWORDS:

APPEAL – POWERS OF THE COURT – COSTS – appellants successful on appeal to the Land Appeal Court – application for costs of the appeal – where the proceeding below was decided under the Water Act 2000 – whether the Land Appeal Court’s power to order costs is derived from s 34 of the Land Court Act or s 882 of the Water Act 2000 – whether apportionment of costs is appropriate – whether costs should be awarded on the indemnity basis

JURISDICTION AND POWERS OF THE COURT – COSTS – application for costs of the proceeding below – whether the Land Appeal Court has jurisdiction and power to award such costs – where costs were not argued or determined in the Land Court – whether the issue should be remitted to the Land Court

PRACTICE AND PROCEURE – application to admit new evidence – Land Court Act 2000, s 56

Acts Interpretation Act 1954 (Qld) s 38

Barron Resource Operations Plan 2005

Civil Proceedings Act 2011 (Qld) s 7

Integrated Planning Act 1997

Judiciary Act 1903 (Cth) s 32

Land Court Act 2000 (Qld) s 34, s 56, s 55, s 57, s 64, s 72

Land Court Rules 2000 (Qld) r 4

Uniform Civil Procedure Rules 1999 (Qld) r 766

Water Act 2000 (Qld) s 877, s 882,

AED Oil Ltd v Puffin FPSO Ltd [2010] VSCA 109

Amos v Monsour Legal Costs Pty Ltd [2008] I Qd R 304

Appellants v Council of The Law Society [2011] ACTSC 133

Australian Capital Holdings Pty Ltd v Mackay City Council [2008] QCA 170

Australian Health Insurance Association Ltd v Esso Australia Pty Ltd (1993) 116 ALR 253

Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559

Belela Pty Ltd v Menzies Excavation Pty Ltd [2005] 2 Qd R 1

Brisbane City Council v Mio Art Pty Ltd [2012] 2 Qd R 1

Calderbank v Calderbank [1976] Fam 93

CJD v VAJ (1998) 197 CLR 172

Colgate-Palmolive Co v Cussons (1993) 46 FCR 225

Chrismel Pty Ltd v Department of Natural Resources and Mines (2005) 26 QLCR 87

Commonwealth and the Central Wool Committee v Colonial Combing, Spinning and Weaving Co Ltd (1992) 31 CLR 421

Donald Crone & Associates v Bathurst City Council (1997) 130 LGERA 139

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

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

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 Chief Executive, Department of Environment and Resource Management (2013) 34 QLCR 371

Hope v Brisbane City Council [2013] QCA 198

House v King (1936) 55 CLR 499

Kable v New South Wales (2013) 87 ALJR 737

Khatri v Price (1999) 95 FCR 287

Knight v Special Assts Ltd (1992) 174 CLR 1787

Lacey v Attorney-General (Qld) (2011) 242 CLR 573

Mansfield v Director of Public Prosecutions for Western Australia (2006) 226 CLR 487

Medical Board (SA) v N, JRP (2006) 93 SASR 546

Mentech Resources Pty Ltd v MCG Resources Pty Ltd (in liq) No 2) (2012) 33 QLCR 43

Mentink v Registrar of the Australian Register of Ships [2014] 1 Qd R 397

Mio Art Pty Ltd v Brisbane City Council (No 3) (2013) 34 QLCR 222 applied

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

O'Mara v Harris (1948) 77 CLR 490

Oshlack v Richmond River Council (1998) 193 CLR 72

Queensland Heritage Council v Corporation of the Sisters of Mercy of the Diocese of Townsville [2014] QCA 165

Smith v Champion No 1 [2009] ACTCA 7 distinguished

Smith v Champion No 2 [2009] ACTCA 15

Thorn v Worthing Skating Rink Company (1876) 6 Ch 415 (n)

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

YMCA v Chief Executive, Department of Transport and Main Roads (No 2) (2012) 33 QLCR 26

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 succeeded in their appeal to this court from a decision of the Land Court.[1]  It remains to determine costs.

The Issues

  1. [2]
    The parties’ submissions as to costs give rise to the following issues:
  1. In relation to the costs of this appeal:
  1. (a)
    by what power and criteria may this court determine an order for costs in respect of the costs of this appeal (“power and criteria for awarding the costs of this appeal”); and
  1. (b)
    what should that order be (“determination of costs of this appeal”)?
  1. In relation to the costs of the proceeding below does this court have power:
  1. (a)
    to award costs in respect of the costs of the proceeding below (“power to award costs of the proceeding below”) or
  1. (b)
    to remit the application for costs back to the Land Court (“power to remit”).

A decision reserved in respect of an application to adduce further evidence must also be made.

Power and criteria for awarding the costs of this appeal 

  1. [3]
    A litigant’s right of appeal from the Land Court to the Land Appeal Court derives from s 64 of the Land Court Act 2000 (Qld) which 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. [4]
    The jurisdiction and powers of the Land Appeal Court derive from Parts 3 and 4 (ss 53-76 inclusive) of the Land Court Act.  The manner of the exercise of the Land Appeal Court’s jurisdiction is informed by s 55 of the Land Court Act which provides:

“55 Land Appeal Court to be guided by equity and good conscience

In the exercise of its jurisdiction, the Land Appeal Court—

  1. (a)
    is not bound by the rules of evidence and may inform itself in the way it considers appropriate; and
  1. (b)
    must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms or the practice of other courts.” (emphasis added)
  1. [5]
    The powers of the court are broad by reason of s 57, which relevantly provides:

“57 Powers of Land Appeal Court

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

…

  1. (c)
    make an order the Land Appeal Court considers appropriate.”  (emphasis added)
  1. [6]
    It is unnecessary to determine whether s 57(c) is of itself sufficient to empower the court to order costs of an appeal before it as the court “considers appropriate”, for the court’s power to do so is either affirmed by or derives from the operation of s 72 and s 34 of the Land Court Act.
  1. [7]
    Section 72 provides:

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

  1. (1)
     Sections 8, 9, 21, 22 and 34 apply, with necessary changes, to the Land Appeal Court.
  1. (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. [8]
    The sections listed in s 72(1) relate respectively to subpoenas, contempt, Rules of the Land Court, directions and costs.  As to costs, s 34 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. [9]
    It was submitted that in this proceeding the operation of s 34 is subject to “another Act to the contrary”, namely s 882 of the Water Act 2000 (Qld).  That Act is relevant because the appeal below related to the respondent’s decision-making under that Act. 
  1. [10]
    The appellants were dissatisfied with the review of the respondent’s decision in respect of their application for a licence to take water to irrigate their property on the Atherton Tablelands. They appealed the internal review decision to the Land Court pursuant to s 877 of the Water Act. 
  1. [11]
    Section 882 of the Water Act makes provision for the powers which the court hearing the appeal from the review decision may exercise, including a heavily confined power to award costs.  Section 882 relevantly provides:

“882 Powers of court on appeal

  1. (1)
    In deciding an appeal, the court may—
  1. (a)
    confirm the review decision; or ...
  1. (e)
    set aside the review decision and substitute it with a decision the court considers appropriate.

…

  1. (2)
    Each party to the appeal must bear the party’s own costs for the appeal.
  1. (3)
    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. (b)
    the court considers the appeal, or part of the appeal, to have been frivolous or vexatious;

…

  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. …” (emphasis added)
  1. [12]
    The appellants initially submitted the effect of s 34 of the Land Court Act is to limit the powers of this court to order costs to the confined costs powers of s 882 of the Water Act.  The respondent’s outline accepted that submission.  However when the issue fell for closer scrutiny each party accepted the submission had to be incorrect. 
  1. [13]
    Section 72(2)’s deeming of a reference to the Land Court as being a reference to the Land Appeal Court only applies to the references in the sections of the Land Court Act listed in s 72(1).  Thus the effect of s 34 is that subject to the provisions of the Land Court Act or another Act to the contrary, the Land Court and Land Appeal Court may each order costs as each court considers appropriate.
  1. [14]
    The terms of s 882 of the Water Act are plainly provisions in “another Act to the contrary”.  However s 882’s terms are only “to the contrary” in respect of the court to which they apply.  In s 882 “the court” referred to is the court hearing the appeal against the review decision.  It was the Land Court, not the Land Appeal Court, which was deciding the appeal against the review decision below.  Section 882 applied to the proceeding below in the Land Court but it has no application to an appeal from the Land Court to the Land Appeal Court.  It is not a provision “to the contrary” within the meaning of s 34 of the Land Court Act insofar as this court’s power to award costs in this appeal is concerned.
  1. [15]
    It follows this court has power to order costs for the appeal in this court “as it considers appropriate”.

Determination of costs of this appeal

  1. [16]
    The appellants seek 100 per cent of their costs of this appeal to be assessed on the indemnity basis. The respondent, who does not seek costs, submits the respondent should only be ordered to pay 70 per cent of the appellants’ costs.
  1. [17]
    Determination of what, if any, award of costs is appropriate necessarily involves consideration of the facts that, on the one hand, the appellants were in the event successful on the appeal and, on the other, that they were not successful to the extent sought and argued by them.
  1. [18]
    In Mio Art Pty Ltd v Brisbane City Council (No 3)[2] this court identified consideration of the extent to which costs should follow the event or be apportioned by reference to degrees of success as a significant consideration in the exercise of the discretion in s 34(1).  The court there referred to the principles discussed by Toohey J in Hughes v Western Australian Cricket Association Inc,[3] including his approval of the caution sounded in Cretazzo v Lombardi[4] against an expectation that apportionment reasoning ought be always or wholly determinative.  That caution is reinforced by the requirement of s 55 of the Land Court Act that this court act according to the “substantial merits” of the case.
  1. [19]
    In this case the appellants succeeded in the essential foundation for the appeal, which was that the learned member below erred in dismissing the appeal for want of evidence as to the appellants’ proposed water use practice. It thereafter remained for this court to determine the volume of water the appellants should be licenced to take per annum.
  1. [20]
    The respondent submits that on this issue the appellants did not succeed, for the volume determined by this court was substantially less than the volume contended for by the appellants. The respondent submits this should be reflected in an order the appellants only recover 70 per cent of their costs of the appeal.
  1. [21]
    The appellants should and would have received a determination of the appropriate volume for the licence in the hearing below but for error and the member’s failure to go on and determine the correct licence volume. Whether the appellants’ submissions below as to the appropriate volume were right or wrong, the appellants were wrongly deprived of a determination of that issue and compelled by the error to re-argue it. Had they received that determination below, as they should have, and, unsuccessfully appealed the quantum of that determination, then the respondent’s apportionment argument would be stronger.
  1. [22]
    Is it “appropriate” to only award a portion of the appellants’ costs of achieving a result in this court that they should have received below? It is not suggested the appellants rejected a reasonable offer of the respondent to settle the costs of the proceeding below so that the need for argument and determination of it might have been avoided. The argument would certainly have been somewhat less taxing had the appellants pursued a lesser allowance and conceded, as this court concluded, that the appellants’ other existing licence allocations should be taken into account. That is a relevant consideration in favour of at least some apportionment. However they were still topics the court needed to consider and determine.
  1. [23]
    The difference which a concession and submission for a lesser volume may have made to the imposte of the argument was not as significant as the result sought by the respondent suggests. I would take a more moderate approach, weighing the extent of that imposte in light of the argument being one that was a necessary incident of the appellants’ success on the appeal. It is appropriate in the circumstances to allow the appellants 85 per cent of their costs on the appeal.
  1. [24]
    The appellants submit costs should be on the indemnity basis but point to the respondent’s allegedly unreasonable conduct in the proceedings below to justify the submission. No conduct in this appeal has been identified as supporting an argument that costs in respect of this appeal should be on the indemnity basis. The respondent’s attempt to uphold the findings below was not of itself unreasonable. As already discussed, the appellants’ argument as to the quantum of the licence was not successful so it was hardly unreasonable of the respondent not to concede it in this appeal.
  1. [25]
    Costs should be on the standard basis.
  1. [26]
    I would order that the respondent pay 85 per cent of the appellants’ costs of the appeal to the Land Appeal Court, to be assessed on the standard basis.

Power to award costs of the proceeding below

  1. [27]
    The respondent submits this court has no power to make any order for costs in respect of the proceeding below or to remit the application.
  1. [28]
    At first blush those submissions, if correct, might be thought to deprive the appellant of a forum before which it can seek its costs below. However, as the respondent correctly submitted, in light of this court’s allowing of the appeal the appellants would now be entitled to make application to the Land Court for the appellants’ costs in the proceeding below, as long as they do so as soon as possible after the conclusion of this appeal.[5]
  1. [29]
    The respondent submitted this court has no power to award costs of a proceeding in the Land Court except on an appeal against a costs decision of the Land Court.  It is submitted that by the operation of s 34(2) of the Land Court Act there was no order below as to costs, from which it follows this was not on its terms or in substance an appeal against a costs decision.
  1. [30]
    In the notice of appeal, in the orders or relief sought, the appellants included an order that:

“The Respondent pay the Appellants’ costs of the appeal.”[6]

  1. [31]
    The appellants submit these at best ambiguous words ought to have been understood as referring to the costs of this appeal and of the appeal below. It is a common enough expectation amongst lawyers that an appellant seeking to reverse an outcome below may, if successful, also seek a consequential order as to costs below in light of that reversed outcome. The respondent was not surprised by the appellants’ desire for such an order. Having regard to s 55(b) of the Land Court Act, I would resolve the ambiguity or oversight in the Notice of Appeal in the appellants’ favour so that their appeal is regarded as including the application advanced by the appellants’ submissions for a costs order in their favour in respect of the appeal proceeding below. 
  1. [32]
    A similar course was taken with some hesitation by this court in LGM Enterprises Pty Ltd v Brisbane City Council.[7]  There the court went on to order costs in respect of the proceeding below, however, there costs had been argued and determined below.  Here there was no such argument or determination.  The respondent’s submission goes beyond the form of the appeal to its substance.  The respondent emphasises this was an appeal on a decision which involved no determination at all as to costs below.
  1. [33]
    A potential answer to the respondent’s challenge lies in s 57 of the Land Court Act, quoted in part above.  Its terms in full are:

“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. [34]
    Subsection (a), which confers a power to remit, only arises if the decision below is suspended. It is irrelevant for present purposes.
  1. [35]
    Subsection (b) empowers this court to revoke the order or decision appealed against and substitute it with another order or decision. It would be erroneous to regard that provision as only allowing the substitution of like with like and not allowing consequential orders. The words used do not suggest the substituting order must be limited to contradicting the order or decision it is substituting. That is unremarkable; the circumstances of each case vary. Success on appeal may provoke a need for categories of orders that were not warranted below because of the different result below.
  1. [36]
    The decision below was “the appeal is dismissed”. It would plainly have been ineffective in making orders in this case to solely pronounce, “the appeal is allowed”. That would be to say nothing of the further orders that should have been made below but for the error. It is noteworthy that in consequence of the appeal being allowed, this court, without complaint by the respondent, has already made other consequential orders and decisions. It ordered the respondent to grant a licence and decided the volumetric allowance for that licence. These are orders or decisions the learned member would have made or determined below but for his error. Put differently, they were then within the potential range of decisions or orders he could have made, rather than deciding as he did.
  1. [37]
    Had the outcome decided here been decided below, an inevitable consequence of that outcome is that the appellants would have sought a costs order in their favour, as they did in the matter which was run in tandem with this matter below, Williams v CEO Department of Environment and Resource Management (No 2).[8]  However a distinction between that form of consequential order and orders such as those about the licence is that the decision-maker below was seized of the licence issues at the time of the decision under appeal.  He was not yet seized of the issues relevant to costs. 
  1. [38]
    If costs were sought in the jurisdiction below it would not have been a simple issue to resolve. For instance, if the appellants were to have pursued a costs order below it would have been necessary for them to first establish the presence of a circumstance listed in s 882 of the Water Act.  Further argument and perhaps further evidence would have been needed.  None of that had occurred below by the time of the decision.  An order or decision as to the appellants’ costs did not fall within the range of order or decisions that potentially fell to be made by the member below at the time he arrived at the decision that was appealed against in this court and had that decision been free of error.
  1. [39]
    That shortcoming is not met by the provision in s 882(3) that in an appeal to the Land Court each party must bear the party’s own costs.  That provision does not have the consequence that the decision below, dismissing the appeal, decided the costs.  The position might arguably be different if s 882 provided that costs follow the event.  Then the decision below, whether it was to dismiss or allow the appeal, might arguably be regarded as having been determinative of costs or determinative to such a substantial extent that an order as to costs was effectively consequential upon the decision.  However s 882’s clear effect is that costs are not consequential upon such a decision.  Such a decision is not to any substantial extent determinative of costs.  This is made plain by s 882(4) which, read with s 882(3), has the effect that costs may only be ordered if one of the circumstances listed in s 882(4) is found to be present and, the court’s discretion to award costs being thus enlivened, the court concludes it is appropriate to award costs. 
  1. [40]
    It follows an order as to the costs below was not a potential “substitute”, within the meaning of s 57(b), “for the order or decision appealed against”.
  1. [41]
    What then of s 57(c)’s provision for this court to make “an order…it considers appropriate”? On its terms the power conferred by s 57(c) is broad. It appears to be limited only by the requirement that the Land Appeal Court considers the order to be appropriate. However the question of what is “appropriate” inevitably falls to be considered by reference to the circumstances of the case before the Land Appeal Court.  This heralds the point that, as with the rest of s 57, s 57(c) is a source of power, not of jurisdiction.  The court’s jurisdiction to exercise the power conferred by s 57(c) is necessarily confined by the nature and extent of the decision under appeal before it.  The decision under appeal in this case did not involve any error regarding the issue of costs below, such as a failure to have decided the issue.  The issue of whether the court should order costs for the appeal pursuant to s 882(4) had not even been argued below at the time of the decision.  As explained in [35-39] above, an order as to costs was not consequential upon the decision.  Such an order did not fall within the jurisdictional range of potential determination of the decision under appeal before this court.  The making of such an order therefore does not fall within this court’s jurisdiction to decide the appeal which is before it. 
  1. [42]
    Since drafting these reasons my attention has been drawn to the Land Appeal Court’s decision in Ostroco v Department of Main Roads (No 3)[9], in which this court made an order as to costs below in circumstances where there had been no determination of costs below.  The decision is of no present relevance in that it did not consider the jurisdictional limitations of the powers conferred by s 57.  It does however help illustrate the present point.  The court in Ostroco was applying a markedly different costs provision than s 882 Water Act, namely s 27 Acquisition of Land Act 1967 (Qld).  The effect of s 27 is that if costs are awarded they shall be awarded to the claimant if the amount of compensation determined is nearer to the amount claimed than the amount of the valuation finally put in evidence by the constructing authority and otherwise shall be awarded to the constructing authority.  While costs remain discretionary under s 27 it is clear the question of what if any order as to costs is made is to a substantial degree determined in consequence of the decision below as to the quantum of compensation.  In contrast, s 882 contains no such consequential link between the outcome of the decision and an award of costs.
  1. [43]
    The above discussed reasoning is also consistent with s 56 of the Land Court Act which provides:

“56 Evidence admissible on appeal

  1. (1)
    An appeal in the Land Appeal Court must be decided on the evidence on the record of the proceeding in which the decision appealed against was made.
  1. (2)
    However, the court may admit new evidence if—
  1. (a)
    the court is satisfied admission of further evidence is necessary to avoid grave injustice; and
  1. (b)
    the party applying to have further evidence admitted gives the court an adequate reason for the evidence not previously being given; and
  1. (c)
    application to have further evidence admitted is made before the hearing of the appeal.” (emphasis added)
  1. [44]
    That provision is consistent with the Land Appeal Court’s jurisdiction to exercise its powers under s 57 being confined to the nature of the decision being appealed against.  The premise of s 56 is that the record of the proceeding below should ordinarily be sufficient to determine the correctness of the decision below and, if there was error, to make orders and decisions correcting that error.  The above reasoning is also consistent with s 56(2)’s limitation on the admission of new evidence to circumstances where its admission is “necessary to avoid grave injustice”.  It is an exaggeration to characterise an inability to advance evidence about an issue as a grave injustice when evidence can still be advanced and a decision can still be made below on the issue.
  1. [45]
    In the course of argument the respondent contrasted s 57 with r 766 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”), a much broader provision conferring powers upon the Court of Appeal.  It relevantly provides:

“766 General Powers

  1. (1)
    The Court of Appeal-

(a) has all the powers and duties of the court  that made the decision appealed from; and

(b) … may make any order the nature of the  case requires; and

(c) may, on special grounds, receive further  evidence as to questions of fact, either               orally in court, by affidavit or in another               way; …

  1. (6)
    The Court of Appeal may exercise its powers under this rule even though-

(a) a notice of appeal has not been given for a  particular part of the decision or by a               particular party to the proceeding; or

 (b) a ground for allowing the appeal or for  affirming or varying the decision is not               stated in the notice of appeal.”

  1. [46]
    The appellants referred to the Civil Proceedings Act 2011 (Qld), which applies to civil proceedings in the Supreme Court of which the Court of Appeal is a division.  Section 7(1) of that provides:

“7 Concurrent administration of law and equity

  1. (1)
    A court must exercise its jurisdiction in a proceeding to ensure, as far as possible, that-
  1. (a)
    all matters in dispute between the parties are completely and finally decided; and
  1. (b)
    multiplicity of legal proceedings is avoided.”
  1. [47]
    That provision has some similarity to s 32 of the Judiciary Act 1903 (Cth) which the High Court has regarded as allowing costs orders to be made by it in relation to the costs of proceedings below.[10]  While s 7 informs the already broad powers conferred on the Court of Appeal by r 766, neither provision relates to the jurisdiction or power of this court. 
  1. [48]
    The appellants contended otherwise, relying upon r 4(1) of the Land Court Rules 2000 (Qld) which provides:

“4 Application of Uniform Civil Procedure Rules

  1. (1)
    If these rules do not provide for a matter in relation to a proceeding in the court and the Uniform Civil Procedure Rules 1999 (the uniform rules) would provide for the matter, the uniform rules apply in relation to the matter with necessary changes.”
  1. [49]
    The court referred to in r 4 includes the Land Appeal Court.[11]  The appellants submit r 4 has the effect that r 766 of the UCPR applies to the Land Appeal Court.  Rule 766 is not of potentially general procedural application.  It is specifically concerned with the Court of Appeal, as distinct from any other court. Its content is inconsistent with it providing, “with necessary changes”, “for a matter in relation to a proceeding” in the Land Appeal Court.  It is not a provision to which r 4 of the Land Court Rules applies.
  1. [50]
    In Smith v Champion[12] the ACT Court of Appeal inferred from a provision conferring power to give any order the court “considers appropriate” that it had the power to make orders as to costs below.  It is distinguishable from the present matter.  There the issue of costs had actually been argued below and the trial judge died before making an order.  More significantly though, the relevant provision was within s 370(1)(b) of the Supreme Court Act 1933 (ACT), a provision more akin in breadth of empowerment to r 766 of Queensland’s UCPR than s 57 of the Land Court Act.
  1. [51]
    A provision which is at first blush against the respondent is s 55(b) of the Land Court Act, quoted in full above.  It provides that in the “exercise of its jurisdiction” this court “must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities”.  Language calling for legal technicality to be disregarded certainly echoes the pragmatic appeal of this court considering and making a decision about the issue of costs below.  Even the respondent concedes this court has sufficient information before it to make an informed decision on that issue.  However, the operation of s 55 is limited by its opening words to the court’s conduct “[i]n the exercise of its jurisdiction”.  Section 55 has the consequence when read with s 57(c), that if this court had jurisdiction in respect of the issue of costs below it could readily determine it according to the substantial merits and without regard to legal technicality.  However, as already explained, the nature of the decision under appeal has the consequence that the court does not have jurisdiction to deal with that issue.
  1. [52]
    The upshot is that this court should not determine the issue of costs below.

Reserved decision on application to admit further evidence

  1. [53]
    In the course of argument, this court reserved its decision on an application by the appellants seeking leave to admit further evidence pursuant to s 56 of the Land Court Act.  The further evidence was said to be relevant to the costs of the appeal below and the costs of the appeal to the Land Appeal Court.[13] 
  1. [54]
    Insofar as the application related to the costs of the appeal to the Land Appeal Court it is unnecessary to decide whether s 56 applies to it for I would in any event dismiss it because the evidence was irrelevant.  The further evidence was about events preceding the hearing below.  It was not evidence of a kind which could show the respondent’s attempt in this appeal to uphold the findings below was unreasonable.
  1. [55]
    Insofar as the application related to the costs of the appeal below I would dismiss it both because my decision as to jurisdiction renders the evidence irrelevant in this court and because the application did not comply with s 56.
  1. [56]
    As to the latter, the terms of s 56 are mandatory to the extent that they relate to the deciding of “an appeal in the Land Appeal Court”.  As earlier explained, if this court had jurisdiction to determine costs below, that jurisdiction could only derive from its jurisdiction to decide the appeal.  The deciding of the appeal is a decision to which s 56 applies.  It follows that even if it was determined this court has jurisdiction to determine costs below, compliance with s 56 to adduce new evidence relevant to costs below was mandatory.  It was not complied with.  The application was not made before the hearing of the appeal as s 56(2)(c) requires.[14]  Nor was the admission of the evidence necessary to avoid grave injustice as s 56(2)(a) requires.  There was no potential grave injustice because, as already mentioned, the issue of costs below is an issue about which evidence can still be advanced and a decision can still be made below. 

Power to Remit

  1. [57]
    The final issue to determine is whether this court can and should remit the appellants’ application in this court for costs in respect of the proceedings below back to the Land Court. 
  1. [58]
    It is appropriate to do so if it can. There are obvious pragmatic benefits for the parties and the court below if the application is treated as already on foot and directions given to facilitate its prompt disposition below rather than it having to be initiated anew. Those benefits include timeliness, reduced expense and administrative convenience. Such a course would also overcome the potential for administrative obstacles below because of erroneous concerns, despite these reasons, that the court may be functus officio as regards a freshly instituted application in the proceeding.
  1. [59]
    The power to remit in s 57(a) is inapplicable for reasons already discussed. Section 57(b) is irrelevant. Does s 57(c) confer a power to remit?
  1. [60]
    Section 57(c) empowers this court to make orders which are appropriate in the circumstances of a particular case. It is a broad power, informed by s 55’s requirement that this court act without regard to legal technicality.
  1. [61]
    The jurisdictional reasoning discussed above suggests on one view that the broad terms of s 57(c) cannot provide this court with jurisdiction to remit a feature of the proceeding below over which it has no jurisdiction and was not properly before it in the appeal. The contrary view is that there is a distinction between this court wrongly exercising power under s 57(c) to determine an application beyond jurisdiction and it exercising power under s 57(c) to remit the application in consequence of deciding it should not determine it.
  1. [62]
    The latter exercise of power is administrative in character. It involves no actual determination of an issue. To the extent it may technically be characterised as an exercise of jurisdiction, that exercise is merely to move an application the court does not have jurisdiction to hear back before the court from which the appeal came and which does have jurisdiction to hear it. That such a technical characterisation might prevent a facilitative administrative order is surely the sort of legal technicality s 55 is directed at overcoming.
  1. [63]
    It is appropriate to remit the application for costs in respect of the proceeding in the Land Court to the Land Court to be determined according to law.

Achieving a majority decision

  1. [64]
    In concluding that this court does not have the jurisdiction to make an order in respect of costs below and should remit the matter I am in the minority. The majority of this court in this matter has determined we have jurisdiction and that an order should be made as to costs below.
  1. [65]
    Unfortunately the members of the majority propose different orders in that regard. It is desirable that this court reach a majority conclusion as to the order relating to costs below. To that end, accepting as I should the majority decision that this court does have jurisdiction to make an order as to costs below, I agree with the proposed order of the President as to costs below. I do so for the reasons identified by the President, which are in turn an adoption of my reasons in the related case of Williams v Department of Environment and Resource Management,[15] where the factual issues as to the present point were effectively identical. 

Orders

  1. [66]
    I would accordingly order:
  1. Application to admit further evidence dismissed.
  2. The respondent pay 85 per cent of the appellants’ costs of the appeal to the Land Appeal Court, to be assessed on the standard basis.
  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.
  1. [67]
    MacDONALD P:  The appellants succeeded in their appeal to this Court against a decision of the Land Court concerning the volume of water licensed to be taken, under the Water Act 2000, for the purposes of irrigating their property.  They have applied for costs of the appeal to this Court and costs of the proceedings below.  The orders sought were:
  1. (a)
    The respondent pay the appellants' costs of and incidental to the proceeding (including any reserved costs) to be agreed, or failing agreement to be assessed under the Uniform Civil Procedure Rules 1999 on the indemnity basis.
  2. (b)
    The respondent pay the appellants' costs of and incidental to the proceeding (including any reserved costs) to be agreed, or failing agreement to be assessed under the Uniform Civil Procedure Rules on the standard basis under the Scale of Costs prescribed by law for proceedings in the Supreme Court. 
  1. [68]
    I have had the advantage of reading in draft the reasons of Henry J and Member Evans in this matter and I adopt gratefully the statement of facts and issues by Henry J and Member Evans.

Costs of the appeal to the Land Appeal Court

  1. [69]
    I agree with the reasons and conclusions of Henry J that the appellants should be awarded 85% of their costs of the appeal to the Land Appeal Court, to be assessed on the standard basis. I also agree with the order proposed by Henry J in this regard.

Costs of the Land Court proceedings

  1. [70]
    The appellants have sought an order, in their costs submissions to this Court, that the respondent pay the appellants' costs of the proceedings in the Land Court. Following the decision of the Land Court, there was no application to the Land Court by either party for the costs of the proceeding below, and consequently there is no decision by the Land Court on that issue. 
  1. [71]
    The first question to be considered is whether the application for the costs of the Land Court proceedings has been properly raised by the appellants in this Court. The orders sought by the appellants in their notice of appeal to this Court included an order that:

"The Respondent pay the Appellants' costs of the appeal."

The appellants have submitted that these words should be construed as referring to the costs of the proceedings below as well as the costs of the appeal to this Court.

  1. [72]
    I am doubtful whether those words are sufficiently ambiguous to be construed to include a reference to the costs of the Land Court proceedings. As there was no costs decision of the Land Court there could be no appeal to this Court on that issue.  In those circumstances, I consider that the reference to the "Appellants' costs of the appeal" should be construed as referring to the subject matter of the notice of appeal, namely the costs of the appeal to this Court. 
  1. [73]
    The appellants' submissions applying for costs of the Land Court proceedings were originally filed in this Court on 20 December 2013. The application was repeated in the submissions filed on 7 February 2014. The respondent had the opportunity to respond to the application, which was done by written submissions filed on 4 March 2014, and to present oral submissions at the hearing before this Court. Although the application for costs was not made in the required form (LAC Form 7 - General Application), I agree with Henry J that the respondent was not taken by surprise when the appellants, having succeeded in their appeal to this Court, submitted that they should be paid their costs of the proceedings below. Nor was it surprising that the appellants did not apply to the Land Court for the costs of the proceedings below, following their lack of success in those proceedings.  In circumstances where the respondents were not taken by surprise and relying on s 55(b) of the Land Court Act 2000[16], I consider that the submissions applying for costs filed in this appeal are sufficient to raise the issue of the costs below, in this Court. 
  1. [74]
    The respondent submitted, however, that this Court has no power to award costs of the proceedings below in the absence of an appeal against a costs decision of the Land Court. Although there is some force in that submission, I have come to the conclusion that this Court does have jurisdiction and power to deal with the application for costs of the Land Court proceedings. 
  1. [75]
    Where there is no other statute applicable, the Land Court's jurisdiction and power to award costs is found in s 34 of the Land Court Act 2000, which provides that:

"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."
  1. [76]
    In the present case, s 34 was ousted by s 882 of the Water Act, being "another Act to the contrary", so that, had there been an application to the Land Court for the costs of the Land Court proceedings, s 882 would have prevailed over s 34.  Section 882 relevantly 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.

…

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

…

  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."
  1. [77]
    While the Land Court's ability to award the costs of the proceeding below was limited by the terms of s 882, s 882(4) does give that Court jurisdiction and power to award costs in the circumstances specified in the subparagraphs. Thus it was open to either of the parties to have applied for costs to the Land Court, following the Land Court decision. 
  1. [78]
    The Land Court's jurisdiction to award or not award costs in this matter was granted by s 882, but that is not an independent grant of jurisdiction. The Land Court's jurisdiction to award costs in a proceeding arises consequentially from its jurisdiction to deal with the matter before it.  A necessary pre-condition for the exercise of that jurisdiction was the existence of the substantive proceedings in the Land Court concerning the water licence.
  1. [79]
    I turn now to a consideration of the Land Appeal Court's jurisdiction and power to award costs of the Land Court proceedings in a case such as the present where there was no application to the Land Court for costs, and no decision of the Land Court about the costs of the Land Court proceedings.
  1. [80]
    Section 54 of the Land Court Act provides:

"Jurisdiction of Land Appeal Court

The Land Appeal Court has the jurisdiction given to it under this Act or another Act."

  1. [81]
    Section 57 provides:

"Powers of the 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 appealed against;
  1. (c)
    make an order the Land Appeal Court considers appropriate."
  1. [82]
    Section 64 provides:

"Right of appeal to the 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. [83]
    In accordance with s 54, the Land Appeal Court has jurisdiction given to it under an Act. Relevantly, s 64 provides that 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.  In this case an application for the costs of the Land Court proceedings has been made to this Court.  The Land Appeal Court's jurisdiction to deal with that is not found in s 64 as the application is not an appeal against a decision of the Land Court.  Nor is there an express grant of jurisdiction to the Land Appeal Court to deal with this application to be found in any other provision of the Land Court Act.  However, in my opinion, a grant of such jurisdiction may be implied from the jurisdiction and powers expressly granted to the Land Appeal Court in ss 54, 67 and 64 of the Land Court Act.  In Australian Health Insurance Association Ltd v Esso Australia Pty Ltd[17] Black CJ said:

"There is a distinction between the conferral of jurisdiction and the grant of a power.  Jurisdiction in this context means the authority a court has to decide a matter and power goes to the exercise of that authority. Without authority there can be no valid exercise of power …

It is of great importance that when the parliament intends to confer jurisdiction on a court it should make its intention plain and an express referral to jurisdiction in the familiar terms employed in s 82ZM has this effect.  But desirable though such an unmistakable conferral of jurisdiction is, it cannot be the only way in which parliament can express its intention that a court should have authority to decide a particular class of matter.  The question is one of construction."

  1. [84]
    There is no doubt that the Land Appeal Court had jurisdiction to deal with the substantive appeal about the water licence, under s 64 of the Land Court Act.  Pursuant to s 57(b) of the Land Court Act, this Court substituted another decision and order for the decision and order of the Land Court about the water licence.  In the same way as the Land Court had jurisdiction under s 882 of the Water Act to deal with the costs in the Land Court arising consequentially from its jurisdiction to deal with the water licence appeal, I consider that this Court has jurisdiction to deal with the costs of those Land Court proceedings in accordance with s 882.  That jurisdiction arises consequentially from the Land Appeal Court's jurisdiction to deal with the appeal and its power to substitute another order about the water licence granted under s 57(b).  Although not expressly stated in the Land Court Act, it seems to me that it is a necessary implication of the grant of jurisdiction to the Land Appeal Court to deal with the appeal, that this Court has also been granted jurisdiction to deal with the Land Court costs issues that arise from this Court's decision on the substantive appeal.  The power to make such a costs order is granted explicitly by s 57(c) which gives the Land Appeal Court power to make an order that the Land Appeal Court considers appropriate.
  1. [85]
    My conclusion that the Land Appeal Court has jurisdiction to deal with the application for the costs of the Land Court proceedings in circumstances such as the present does not mean that the Land Appeal Court must deal with such an application. While it is desirable that a Court should wherever possible, deal with all the matters in issue between the parties, I consider that the Land Appeal Court may remit such an application to the Land Court for determination in appropriate cases.  For example, if it is necessary for the proper determination of costs for further evidence to be adduced it may be appropriate to remit the costs issues to the Land Court for determination.  Similarly, since the award of costs is a discretionary matter, there may be cases where the Land Court Member who conducted the hearing is in a better position than the Land Appeal Court to decide a costs application made in respect of those proceedings.  In this case, I consider that this Court is in as good a position as the Land Court to determine the costs of the proceedings below as this Court is seized of the appeal in Williams v Chief Executive, Department of Environment and Resource Management, which is an appeal against the costs decision of the Land Court in proceedings which were heard in conjunction with the Gallo appeal in the Land Court.  Further, the respondent has conceded that the Land Appeal Court is in as good a position as the Land Court to determine the costs of the Land Court proceedings[18].  This Court should determine those costs. 
  1. [86]
    I would also add that I do not consider that the fact that there was no application to the Land Court for costs, following the substantive decision by the Land Court, would have precluded the appellants from applying to the Land Court for costs after the Land Appeal Court decision about the water licence. It was only after that decision had been handed down, and possibly after the expiry of any appeal period, that the appellants' rights were clarified and any right to claim costs accrued. I consider that, in those circumstances, it was open to the appellants to have applied to the Land Court for costs as soon as possible after those decisions.[19]

Application for leave to adduce new evidence

  1. [87]
    Prior to the costs hearing before this Court, the appellants filed an application pursuant to s 56 of the Land Court Act, seeking leave to admit new evidence.  The application was supported by an affidavit of LA Manning affirmed on 27 February 2014.  The appellants submitted that the new evidence was relevant to the costs of the appeal proceedings in this Court and also to the costs of the proceedings below.  This Court reserved its decision on the application.
  1. [88]
    The appellants identified 8 documents as the subject of the application:
  1. Question on Notice 1337 dated 28 September 2005. 
  2. Question on Notice 1456 dated 28 November 2006.
  3. Letter p&e Law to Gilbert and Sutherland dated 20 February 2009 (together with Report on Crop Irrigation Demands Barron Water Resource Plan Area Sub-Catchment Area C)
  4. Memos S Dempster to L Henrichsen dated 4 April 2005 and 6 June 2005.
  5. Submission to Water Advisory Group.
  6. Letter Crown Law to p&e Law 4 September 2008.
  7. Letter p&e Law to Crown Law 5 September 2008.
  8. Letter Crown Law to p&e Law 26 September 2009.
  1. [89]
    Section 56 of the Land Court Act provides that:

“56 Evidence admissible on appeal

(1) An appeal in the Land Appeal Court must be decided on the evidence on the record of the proceeding in which the decision appealed against was made.

(2) However, the court may admit new evidence if -

  1. (a)
    the court is satisfied admission of further evidence is necessary to avoid grave injustice;  and
  1. (b)
    the party applying to have further evidence admitted gives the court an adequate reason for the evidence not previously being given;  and
  1. (c)
    application to have further evidence admitted is made before the hearing of the appeal."

Land Appeal Court proceedings

  1. [90]
    I concluded in the previous section that the appellants' submission seeking costs of the Land Court proceedings were properly characterized as an application to the Land Appeal Court for those costs. Consistently with that conclusion I consider that the appellants' application for the costs of the appeal to the Land Appeal Court is also properly characterized as an application.  I do not consider that s 56 is applicable to that application.  The section is concerned with an appeal to the Land Appeal Court, not with the consequential application for costs of that appeal.  It would be very strange if the effect of s 56 were that no evidence could be admitted on the question of costs because an application for leave to admit that evidence was not made before the hearing of the substantive appeal.
  1. [91]
    Accordingly it is not necessary for the admission of this evidence that the appellants comply with s 56(2). Rather s 55(a) applies and this Court should deal with the application on the basis that it is not bound by the rules of evidence and may inform itself in the way it considers appropriate.
  1. [92]
    Although this Court is not bound by the rules of evidence, I do not consider that this evidence should be admitted for the purpose of determining the costs of the appeal to the Land Appeal Court as the evidence is not relevant to that issue. I agree with Henry J that the evidence relates to the events preceding the hearing below. It does not point to any relevant conduct on the part of the respondent in supporting the decision of the Land Court.  In particular, there is no evidence that the Calderbank offer was repeated before the appeal to this Court and consequently there was no failure on the part of the respondent that could found an order for an indemnity costs[20]. 

Land Court proceedings

  1. [93]
    Similarly, I do not consider that the appellants' application to this Court to admit further evidence in relation to the costs of the Land Court proceedings is to be determined in accordance with s 56 of the Land Court Act.  Again, this Court should deal with the application on the basis that it is not bound by the rules of evidence and may inform itself in the way it considers appropriate[21].  Mr Manning's affidavit states that the documents relate to the state of knowledge of the respondent at the date the Calderbank offer was made.  On that basis they are relevant to the determination of costs of the proceedings below.  The respondent has conceded that documents 6, 7 and 8 in the list above, being documents evidencing the Calderbank offer should be admitted.  I consider that all the documents identified in the application should be admitted into evidence. 

Determination of costs of Land Court proceedings

  1. [94]
    In the matter of Williams v Department of Environment and Resource Management[22] I concurred with the decision and orders of Henry J that the respondent pay 70 per cent of the appellants' costs of the appeal below from and including 23 June 2008, on the indemnity basis.
  1. [95]
    The appeals to the Land Court in both this matter and Williams were heard together and, therefore, I consider that, in each matter, the same order as to costs should be made.  For the reasons set out by Henry J in Williams, I consider that the Order in this matter should be that the respondent pay 70 per cent of the appellants' costs of the appeal below from and including 23 June 2008 on the indemnity basis.

Orders

  1. The respondent pay 85% of the appellants' costs of the appeal to the Land Appeal Court, to be assessed on the standard basis.
  2. The respondent pay 70% of the appellants' costs of the appeal to the Land Court from and including 23 June 2008 on the indemnity basis. 

MEMBER EVANS

Introduction

  1. [96]
    This Court delivered reasons for judgment on 6 December 2013 allowing the appellants’ appeal from the Land Court holding that a water licence ought be granted to the appellants, however, not for the amount sought on appeal, but for a significantly lesser amount (267 ML per water year as opposed to 813 ML per water year), and made various orders, including orders giving the parties leave to make submissions in relation to costs.
  1. [97]
    Submissions were subsequently made, both in writing, and to a limited extent orally. The appellants seek an order that the respondent pays the costs of this appeal and the costs of the appeal below. Both orders are sought on an indemnity basis

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

  1. [98]
    The appellants filed an application said to be pursuant to s 56 Land Court Act 2000 to adduce evidence by way of affidavit in relation to their Calderbank offer (or more accurately what is accepted by the respondent to have been one).
  1. [99]
    That affidavit had exhibited to it a series of documents, including what was accepted by the parties as being the appellants’ Calderbank offer. It also contained other documents.
  1. [100]
    A preliminary point arises as to the true character of this application and whether it is made under s 56 Land Court Act 2000 or not. This is an important point because if s 56 applies then the appellants would be unable to rely on this material because the application was not made before the commencement of the hearing of the appeal[23].
  1. [101]
    Section 56 Land Court Act 2000 provides:

"56 Evidence admissible on appeal

(1) An appeal in the Land Appeal Court must be decided on the evidence on the record of the proceeding in which the decision appealed against was made.

(2) However, the court may admit new evidence if—

  1. (a)
    the court is satisfied admission of further evidence is necessary to avoid grave injustice; and
  1. (b)
    the party applying to have further evidence admitted gives the court an adequate reason for the evidence not previously being given; and
  1. (c)
    application to have further evidence admitted is made before the hearing of the appeal."
  1. [102]
    In my view s 56 does not apply. Section 56 is limited to deciding the appeal. It is not directed at any application for costs of the appeal, nor in the circumstances here, the costs below.
  1. [103]
    If the position were otherwise parties would be forced to put in material on costs at a stage well prior to when the outcome of the appeal was known (such that some or all of the material might ultimately be completely irrelevant and the material put in would be really a scatter-gun approach out of an abundance caution as to what might become relevant) and in circumstances where it may be quite improper, imprudent or undesirable for the Land Appeal Court to see that material before deciding the appeal. In my view s 56 is not directed at costs applications for the appeal and nothing in the opening words of s 56(1) is directed at such applications.
  1. [104]
    Accordingly, the test for the admissibility of the material becomes one of relevance, subject of course to any other valid objections but having regard to s 55 Land Court Act 2000[24].
  1. [105]
    Counsel for the respondent, Mr Hinson QC, very fairly and reasonably made a concession that the court ought receive the documents (6 to 8 in the application) being “LAM5” to the Affidavit of Leslie Anthony Manning sworn 27 February 2014. Those documents are clearly relevant to the costs below. I allow the application to this extent.
  1. [106]
    As to each of the other documents sought to be relied upon, Mr Manning in paragraph 2 of his affidavit swears that they “relate to the state of knowledge of the respondent at the date the Calderbank offer was made”. The Calderbank offer was made by the letter dated 5 September 2008 relevantly in these terms (and in rejection of an offer made by the respondent):

“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, in the range of 660-700 ML per water year; and that each party bear their own costs of the appeal.[25]”

  1. [107]
    This court allowed the appellants a water licence of 267 ML per water year. The amount applied for originally was 990ML per water year. The amount allowed was about 27% of the amount originally applied for. If nothing more appeared the offer was nowhere near what the court ordered and failure to accept it, or to negotiate with the appellants for an allowance in the region of it, could not be said to be unreasonable.
  1. [108]
    To counter this the appellants seek to argue a change in circumstances following the making of the offer in September 2008 and the determination of the appeal by this Court in their favour, such that had it not been for those changes (which presumably the appellants seek to say were unforeseeable at the time) the offer was not “beaten”. I deal with this more fully below in determining that it was not unreasonable for the respondent to have not accepted the Calderbank offer. My view on this would not change whether one has regard to the further documents sought to be relied on in Mr Manning’s affidavit or not.
  1. [109]
    Accordingly, I do not find it necessary to determine the admissibility of these further documents in relation to the costs below. I agree that none of the documents (including the Calderbank offer) are relevant to the costs in this Court.  I agree with [54] of Henry J’s judgment in this respect and with [92] of the judgment of the President.

Jurisdiction to award costs below

  1. [110]
    The costs application raises important points of law in relation to the jurisdiction of the Land Appeal Court. In this case, the appellants lost in the Land Court. No order was made as to the costs below. The only order made by the Land Court was that the appeal to the Land Court was dismissed. However, as this case involved an appeal from a review decision of the respondent in relation to an application for a water licence, the costs of the appeal below were governed by the provisions of s 882 Water Act 2000. That section, which is located in Ch 6 of the Water Act 2000,  provides as follows:

"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. [111]
    The “court” referred to in s 882 is the Land Court. Unsurprisingly, the appellants made no application to the Land Court in relation to the costs of their unsuccessful appeal to it.
  1. [112]
    Whilst the respondent succeeded below, it too did not make any application for costs. Again this was not surprising in view of s 882.
  1. [113]
    Section 882 does not permit a costs order to be made merely because a party has been successful.
  1. [114]
    Section 882(3) applied and the parties had to bear their own costs[26]. There can be no suggestion in this appeal that any party had any intention of ever applying for a costs order under s 882(4) in relation to the result below and they did not do so.
  1. [115]
    Sections 882(3) and 882(4) are clearly intended to limit the circumstances in which costs are ordered in these types of appeal in the Land Court. In my view, as explained in more detail below, s 882(3) and s 882(4), as a matter of interpretation, implicitly require that any application for an order for costs under s 882(4) be made to the Land Court within a reasonable time, otherwise the effect of the Land Court’s decision otherwise disposing of the appeal, is by force of s 882(3) taken also to dispose of the costs by the result given in s 882(3). Up until such time as a reasonable time has passed, a party may apply under s 882(4) for a different result to what will flow if no such application is made within that time. Otherwise, outside that time, there will then be no power to make any order for costs in the Land Court and the decision made by the Land Court, taken in conjunction with s 882(3), will determine the costs.
  1. [116]
    The jurisdiction point at issue is whether the Land Appeal Court can make an order for the costs below where no order was applied for by either side and no order was made, but the basis for there having been no order applied for or made below, has been disturbed because this court has reversed that primary decision.
  1. [117]
    In essence the respondent contends that because no order was made below, the appeal against the Land Court’s decision which is before this Court does not encompass the costs below because the “decision” the subject of this appeal did not decide the costs below and there was no order of the Land Court which dealt with the costs[27].
  1. [118]
    The Land Appeal Court is, as its name suggests, an appellate court. That said, appeals to it are by way of rehearing, with limited power to admit further evidence, and are not appeals stricto sensu. As stated by McHugh, Gummow and Callinan JJ in CJD v VAJ[28]:

“No doubt it is true that, because the appeal is by way of rehearing, the Full Court's jurisdiction is neither purely appellate nor purely original: Ex parte Australian Sporting Club Ltd; Re Dash (1947) 47 SR(NSW) 283”

  1. [119]
    This court is a statutory court and its jurisdiction is derived entirely from statute[29]. The resolution of the present issue involves a determination of the interpretation of the relevant statutory provisions. That said, the primarily appellate nature of the jurisdiction, albeit by way of rehearing, is of relevance in considering the issue: CJD v VAJ[30]; and see generally Lacey v Attorney-General (Qld)[31]. 
  1. [120]
    Unlike the Supreme Court[32], the Industrial Court[33] and the Mental Health Court[34], the Land Appeal Court is not a superior court[35].
  1. [121]
    The Land Appeal Court is established by s 53(1) Land Court Act 2000. By s 53(2) it is a court of record. The Land Appeal Court is not established as a superior court. It is an inferior court, as is the Land Court[36].
  1. [122]
    The Land Appeal Court is not established in express terms as a division of the Land Court. This is to be contrasted with the position of the Supreme Court. The Supreme Court is a superior court. Expressly, by s 5(1) of the Supreme Court of Queensland Act 1991 the Supreme Court is divided into the office of Chief Justice (s 5(1)(a)) and two divisions, namely, the Court of Appeal and the Trial Division[37]. 
  1. [123]
    The source of a statutory inferior court’s jurisdiction is statute. If there is no statutory provision, which either expressly or by necessary intendment, gives the court jurisdiction, then it will not possess it[38]. 
  1. [124]
    The nature of the status of the court as being either a superior or an inferior court is also relevant as is the distinction between the court’s jurisdiction and its powers.
  1. [125]
    As to the latter, the decision of the Court of Appeal in Queensland Heritage Council v Corporation of the Sisters of Mercy of the Diocese of Townsville[39]  is illustrative. There, an appeal could only be brought to the Planning and Environment Court on a certain ground i.e. that the place the subject of the appeal did not satisfy the cultural heritage criteria referred to in s 162(1) of the Queensland Heritage Act 1992. However, the Court of Appeal held that, if that ground was made out, in exercising its statutory powers to make orders in the appeal, the Planning and Environment Court could have regard to matters which would not have constituted grounds of appeal, such as the structural integrity of the building which was one of the criteria referred to in s 51(3).
  1. [126]
    As to the former, in Fraser Property Developments Pty Ltd v Sommerfeld (No 1)[40] McPherson JA (with whom Williams JA and Philippides J agreed) stated:

[23] In interpreting a statute like this, with its labyrinthine and poorly integrated definitions and provisions, it is necessary to remain acutely aware of the risks of being mistaken about a matter as fundamental as jurisdiction and its consequences for the parties. That is no doubt the reason for the long-standing rule that:

“nothing shall be intended to be out of the jurisdiction of a Superior Court, but that which specially appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an Inferior Court but that which is so expressly alleged.”

See Peacock v. Bell (1667) 1 Wms. Saund. 69, 74; 85 E.R. 81, 87–88, applied in Mayor of London v. Cox (1867) L.R. 2 H.L. 239, 259–260; Cameron v. Cole (1944) 68 C.L.R. 571, 585; and D.M.W. v. C.G.W. (1982) 151 C.L.R. 491, 509.

The Supreme Court is the superior court of general jurisdiction for this State, and, if its authority to hear and determine the plaintiff's claim against the third defendant is to be taken away and bestowed on another body or tribunal, it must be accomplished by statutory provisions that are very much clearer in their meaning and effect than those contained in either s 75(1) or s 77(1) of the Queensland Building Services Authority Act 1991. The presumption against depriving this Court of jurisdiction is one that applies with peculiar force in the present case.”

  1. [127]
    Recently, the High Court has warned against automatically applying English decisions in relation to superior courts in England to courts in Australia without considering whether they are applicable to an Australian context. In Kable v New South Wales[41]  it was held by French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ.

The order of a superior court of record

[28] As has already been noticed, there was and could be no dispute that the Supreme Court of New South Wales was and is a “superior court of record”. It is necessary, however, to approach what meaning is conveyed by that expression with some fundamental principles at the forefront of consideration.

[29] First, and foremost, there can be no unthinking transplantation to Australia of what has been said in English cases40 about the consequences of a court being established as a “superior court of record”. The constitutional context is altogether different. Due regard must be paid to those differences.

[30] Second, there is no Australian court with unlimited jurisdiction.41 Hence, although it is sometimes suggested42 that, in England, the prerogative writs of mandamus, prohibition and certiorari were not available to provide relief against a judgment or orders of a judge of a superior court, that suggestion, even if accurate, could have no direct or immediate application in Australia.

[31] Third, all courts, whether superior or inferior, have the authority to decide whether a claim that is made in the court is within its jurisdiction.43 That power can be described as a court having jurisdiction to decide its own jurisdiction. But because there is no Australian court with unlimited jurisdiction, a decision that a court does, or does not, have authority to decide a particular claim will be subject to review and correction. Sometimes that will be by the grant of prohibition or certiorari;44 sometimes, as exemplified by Kable (No 1), it will be by the process of appeal, and ultimately by appeal to this court. And if it is said that a superior court is presumed to act within its jurisdiction, that is best understood as a statement about the effect that is to be given to its orders unless or until they are set aside.

[32] It is now firmly established45 by the decisions of this court that the orders of a Federal Court which is established as a superior court of record are valid until set aside, even if the orders are made in excess of jurisdiction (whether on constitutional grounds or for reasons of some statutory limitation on jurisdiction). It was not submitted that any of these decisions should be reopened and there would be powerful reasons not to disturb such a long-established stream of authority. Nor was it submitted that these principles did not apply equally to the judicial orders of a State Supreme Court. Rather, as already noted, the principles were said not to apply because the order made by Levine J was not a judicial order. And, for the reasons already given, that submission must be rejected. [footnotes omitted]

  1. [128]
    One distinction between an order of a superior court and that of an inferior court made in excess of jurisdiction, is that with a superior court, the order is valid until set aside. Accordingly, even though the order of the Supreme Court of New South Wales in Kable was found to be unconstitutional by the High Court and set aside by it, Mr Kable’s imprisonment up until it was set aside gave rise to no claim for damages for wrongful imprisonment against the State of New South Wales. By contrast an order of an inferior court made outside jurisdiction does not enjoy the same, or possibly, any protection. It can be attacked in collateral proceedings without any steps being taken to have the order set aside. It is simply void. For this reason it is important that an inferior court asked to make an order which might be outside its jurisdiction ensure for itself (whether raised by the parties or not, and regardless of any “consent” to the making of the order) that it has jurisdiction before doing so as actions taken under any order made outside jurisdiction do not enjoy the protection of an order made outside jurisdiction by a superior court.
  1. [129]
    In Kable v New South Wales[42], Gageler J explained:

[54] Within the framework of the Australian Constitution, the authority belonging to a judicial order of a court varies between categories of courts. A distinction is drawn between superior courts and inferior courts. The Supreme Courts of the states, to which reference is made in s 73 of the Constitution, were at federation and necessarily remain superior courts.70 The High Court, referred to in s 71 as the “Federal Supreme Court”, is inherently a superior court. Other state courts as may be invested with federal jurisdiction under s 77(iii) of the Constitution can be created by state parliaments (subject to state constitutions) as either superior courts or inferior courts, just as other federal courts can be created by the Commonwealth Parliament under s 71 of the Constitution as either superior courts or inferior courts.

[55] A judicial order of any court, whether superior or inferior, is valid and effective if it is made within jurisdiction. Any judicial order, whether of a superior court or an inferior court and whether made within or without jurisdiction, is a judgment, decree, order or sentence from which an appeal may lie to the High Court under s 73 of the Constitution and, where such an appeal lies, a judicial order made without jurisdiction may be set aside by the High Court in determining the appeal.71 Any judicial order made in excess of jurisdiction by a federal court, whether the court be created as a superior court or an inferior court, may be set aside by a writ of certiorari issued under s 32 of the Judiciary Act 1903 (Cth) in the exercise of the original jurisdiction of the High Court conferred by s 75 or under s 76 of the Constitution.72

[56] There is, however, a critical distinction between a superior court and an inferior court concerning the authority belonging to a judicial order that is made without jurisdiction. A judicial order of an inferior court made without jurisdiction has no legal force as an order of that court. One consequence is that failure to obey the order cannot be a contempt of court.73  Another is that the order may be challenged collaterally in a subsequent proceeding in which reliance is sought to be placed on it. Where there is doubt about whether a judicial order of an inferior court is made within jurisdiction, the validity of the order “must always remain an outstanding question” unless and until that question is authoritatively determined by some other court in the exercise of judicial power within its own jurisdiction.74 In contrast:75

It is settled by the highest authority that the decision of a superior court, even if in excess of jurisdiction, is at the worst voidable, and is valid unless and until it is set aside.

[57] The constitutional robustness of the principle that a judicial order of a superior court made without jurisdiction has legal force as an order of that court unless and until it is set aside is illustrated by Re Macks; Ex parte Saint.76 There the principle was applied to judicial orders of the Federal Court of Australia which had been made in fact, but in the exercise of jurisdiction only purportedly conferred by Commonwealth and state statutes held to be invalid as infringing Ch III of the Constitution.77 The legal force of those orders, unless and until set aside, was held to derive not from the constitutionally impermissible purported conferral of jurisdiction by the Commonwealth Parliament or by state parliaments but from the constitutionally permissible conferral by the Commonwealth Parliament on the Federal Court of the status of a superior court.78    [footnotes omitted]

  1. [130]
    I do not think anything said in Kable renders the rule referred to in the English cases, and identified and applied by the Court of Appeal in Fraser Property Developments Pty Ltd v Sommerfeld (No 1), as being inapplicable to the task of determining whether an inferior court possesses jurisdiction. Given an inferior court’s status, and that of orders made by it outside jurisdiction, such a rule is a sensible and pragmatic one of ongoing relevance and utility in the Australian courts system[43]. In the case of inferior courts where a statute is not clear as to the jurisdiction, any doubt ought be resolved against jurisdiction. It is only if the jurisdiction clearly appears, whether expressly or by necessary implication, that jurisdiction will be established.
  1. [131]
    In saying this I note also another principle as expressed in the judgment of Gaudron J in Knight v F P Special Assets Ltd[44], that powers given to a court are not to be implicitly read down and should be given their natural and full meaning unless there is something to indicate to the contrary and jurisdictional provisions are to be construed likewise:

“It is contrary to long-established principle and wholly inappropriate that the grant of power to a court (including the conferral of jurisdiction) should be construed as subject to a limitation not appearing in the words of that grant. Save for a qualification which I shall later mention, a grant of power should be construed in accordance with ordinary principles and, thus, the words used should be given their full meaning unless there is something to indicate to the contrary. Powers conferred on a court are powers which must be exercised judicially and in accordance with legal principle. This consideration leads to the qualification to which I earlier referred. The necessity for the power to be exercised judicially tends in favour of the most liberal construction, for it denies the validity of considerations which might limit a grant of power to some different body, including, for example, that the power might be exercised arbitrarily or capriciously or to work oppression or abuse.[45]”

  1. [132]
    To similar effect is the judgment of Gaudron and Gummow JJ in Oshlack v Richmond River Council[46]:

[21] The provisions of s 69 of the Court Act which confer upon the court the discretion exercised by the primary judge attract the application of the general proposition that it is inappropriate to read a provision conferring jurisdiction or granting powers to a court by making conditions or imposing limitations which are not found in the words used.25 The necessity for the exercise of the jurisdiction or power by a court favours a liberal construction. Considerations which might limit the construction of such a grant to some different body do not apply.26

  1. [133]
    What then is the source of the Land Appeal Court’s jurisdiction or power in this case to make an order for costs in relation to the costs in the Land Court?
  1. [134]
    It should immediately be noted that there is a distinction between jurisdiction and power. As French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ stated in the High Court in Lacey v Attorney-General (Qld)[47]

 “The distinction between jurisdiction and power has been one repeatedly made by this court.”

  1. [135]
    In Australian Securities and Investments Commission v Edensor Nominees Pty Ltd[48]  per Gleeson CJ, Gaudron and Gummow JJ:

[64]"Jurisdiction" and "power" are not discrete concepts. The term "inherent jurisdiction" may be used, for example in relation to the granting of stays for abuse of process, to describe what in truth is the power of a court to make orders of a particular description70. In Harris v Caladine, Toohey J said71:

"The distinction between jurisdiction and power is often blurred, particularly in the context of 'inherent jurisdiction'. But the distinction may at times be important. Jurisdiction is the authority which a court has to decide the range of matters that can be litigated before it; in the exercise of that jurisdiction a court has powers expressly or impliedly conferred by the legislation governing the court and 'such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred'72."

[65] Nevertheless, it is to be remembered, particularly in a case such as that before Merkel J, that, in the words of Brennan and Toohey JJ, "[c]haracteristically an exercise of jurisdiction is attended by an exercise of power"73. The claims for relief illuminate the scope of a controversy which constitutes a matter74 and once the Federal Court has jurisdiction to determine a controversy it has power in the exercise of that jurisdiction to give the remedies sought75.

  1. [136]
    The matters set out in s 57 Land Court Act 2000 are described in the heading as this court’s “powers”.
  1. [137]
    In some cases, the conferral of a power may carry with it the conferral of jurisdiction. In Mentink v Registrar of the Australian Register of Ships[49], P Lyons J held, albeit in the context of federal jurisdiction in relation to the Shipping Registration Act 1981 (Cth):

[26] The distinction between the conferral of jurisdiction on a court, and the grant to it of a power, was discussed in Australian Health Insurance Association Ltd v Esso Australia Pty Ltd.25 Black CJ said:26

“There is a distinction between the conferral of jurisdiction and the grant of a power. Jurisdiction in this context means the authority a court has to decide a matter and power goes to the exercise of that authority.”

[27] In that case, Black CJ held that the conferral of a power, then under consideration, carried with it the conferral of jurisdiction.27 Sheppard J agreed.28

[28] In my view, s 59 of the SRA both grants a power (to direct rectification of the register) and confers jurisdiction (to decide any question that it is necessary or expedient to decide in connection with the rectification of the register). The conferral of jurisdiction, it seems to me, is broader than is necessary simply to determine whether the register should be rectified. It extends to deciding any question, necessary or expedient to decide, in connection with rectification. It seems to me that it is arguable that this court is thereby authorised to exercise such powers as it might have, necessary to decide such questions. A declaration would be the exercise of an appropriate power pursuant to that jurisdiction.

[29] Under s 77 of the Commonwealth Constitution, the Federal Parlia­ment may make laws investing a court of a State with federal jurisdiction in respect of any of the matters mentioned in ss 75 and 76 of the Constitution. Matters mentioned in s 76 of the Constitution include matters arising under any laws made by the Federal Parliament. Consistent with s 77 of the Constitution, s 15C of the Acts Interpretation Act 1901 (Cth) provides that where a provision of an Act authorises a proceeding to be instituted in a particular court in relation to a matter, the provision is deemed to vest that court with jurisdiction “in that matter”. It seems to me the purpose (and effect) of s 15C of the Acts Interpretation Act is that where a provision of an Act authorises the commencement of proceedings in a particular court, and those proceedings are related to a “matter”, then the jurisdiction conferred is jurisdiction “in that matter”. That is not to deny that, when the Federal Parliament confers jurisdiction on a court in a matter, it may restrict that jurisdiction, for example, to part only of the matter.29

[30] In this context, the expression “matter” is not limited to a claim for a particular form of relief; nor to a particular cause of action. Nevertheless, it will not always encompass the whole of the dispute between parties. Where a cause of action is within federal jurisdiction, that jurisdiction might extend to causes of action described by Mason J in Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd30 as “non-severable”. In Fencott v Muller,31 the joint judgment of Mason, Murphy, Brennan and Deane JJ pointed out the difficulties in the precise determination of the scope of a matter, though they stated that the existence of common transactions and facts was a generally sound guide. Their Honours said with respect to such a matter:32

“… it would be erroneous to exclude a substantial part of what is in truth a single justiciable controversy and thereby to preclude the exercise of judicial power to determine the whole of that controversy. What is and what is not part of the one controversy depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships. The scope of a controversy which constitutes a matter is not ascertained merely by reference to the proceedings which a party may institute, but may be illuminated by the conduct of those proceedings and especially by the pleadings in which the issues in controversy are defined and the claims for relief are set out. But in the end, it is a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter.”

  1. [138]
    The appeal to this Court does not derive from any part of the Water Act 2000. Rather, it is derived by virtue of s 64 Land Court Act 2000.
  1. [139]
    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. [140]
    Section 49A Acts Interpretation Act 1954 is in similar terms to s 15C Acts Interpretation Act 1901 (Cth) but free of the requirements of the Commonwealth Constitution referred to in Mentink which are inapplicable here. It 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. [141]
    In addition s 54 Land Court Act 2000 provides:

54 Jurisdiction of Land Appeal Court

The Land Appeal Court has the jurisdiction given to it under this Act or another Act.

  1. [142]
    In my view, these sections confer jurisdiction on the Land Appeal Court in “the matter” appealed to this Court from the Land Court.
  1. [143]
    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. [144]
    In my view, s 57 confers powers on the Land Appeal Court in dealing with the matter before it, over which it has jurisdiction.
  1. [145]
    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. [146]
    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. [147]
    Section 882 Water Act 2000 is as extracted above.
  1. [148]
    The jurisdiction of the Land Appeal Court rests upon a properly instituted appeal[50] against “all of part of the decision of the Land Court.” [emphasis added] [51]
  1. [149]
    This court has jurisdiction to determine such an appeal. This is “the matter” before it. The jurisdiction is not conditioned on the Land Court having made an order but merely a decision. In their notice of appeal to this Court the appellants have appealed against all of the decision made below[52].  
  1. [150]
    In my view, the decision below encompassed the costs below because the decision triggered the final operation of the position in s 882(3) Water Act 2000, when no application was made for costs by any party under s 882(4) within a reasonable time of its having been given. In my view, the matter before the Land Appeal Court, in the circumstances of this case, therefore included the question of the costs below. 
  1. [151]
    True it is that had one of the parties applied to the Land Court for a different decision on costs under s 882(4) the Land Court would then have had to have made a specific decision on that application. However, given the effect of s 882(3) I do not think this means the decision of the Land Court which was in fact made here was such that it could be said that it did not decide the costs. It did so by operation of s 882(3). There was no need for any additional order by it for this to occur but there was a need for a decision to start time running under s 882(4) and prevent s 882(3) being displaced after a reasonable time had elapsed from the making of the decision. It occurred automatically by operation of law. Accordingly, in that sense, the Land Court decided the costs. In my view, therefore the “decision” of the Land Court appealed against can be said to include the question of costs for the purposes of the appeal to this Court and the application of s 64 Land Court Act 2000 and s 49A Acts Interpretation Act 1954. The “matter” the subject of the appeal includes the determination of the costs below. This Court has jurisdiction in relation to the costs below. This Court also has the powers given by s 57 Land Court Act 2000 in its determination of the appeal.
  1. [152]
    Section 57(b) Land Court Act 2000 will apply if there has been an order made below. There was an order made below and that order was that the appeal be dismissed. This order has been appealed against. True enough, this order did not contain any mention of the costs below and the Land Court did not make any order about costs. That said, it seems to me that this court has power by s 57(b) to deal with the costs below by virtue of the order that was made and which has been appealed against. I agree with what is said at [35] of Henry J’s judgment. 
  1. [153]
    I do not think that s 882(3) deems there to have been an order made by the Land Court for each party to bear their own costs in the absence of an application by either side as to costs[53]. Indeed, the wording of s 882(4) is against this because it specifically requires an order be made under s 882(4) if the position under s 882(3) is to be disturbed. Rather, the effect of s 882(3) is that in the absence of any order for costs under s 882(4), each party must bear their own costs. Accordingly, the effect of the Land Court’s order dismissing the appeal and making no other order was that s 882(3) had operation, subject to any further order being made, and none was. In other words, the order made below dismissing the appeal had, in the circumstances of this case, a determinative effect on the costs below (no other order having been made or applied for below under s 882) and accordingly, the power in s 57(b) entitles this court as part of substituting orders in the place of those made below to include in the substituted orders, orders dealing with the costs below.
  1. [154]
    Orders under s 882(4) are not sought or made in every case but only in a limited number of cases. The whole purpose of s 882 is to limit the circumstances in which costs are applied for and awarded.
  1. [155]
    It would seem an odd result in the present case if the appellants, having lost below, and either not knowing whether the respondent would apply for costs or knowing that the respondent would not apply, had to bring an application for a costs order so as to have it declined in order to show that there had been a “decision” on costs which would then enable them to seek the costs below in any appeal to this court if they succeeded in reversing the dismissal of their appeal below. Such a bizarre situation cannot possibly have been intended by parliament. The whole purpose of ss 882(3) and 882(4) Water Act 2000 is to decrease the number of cases where costs are applied for and ordered, not to increase them. As the High Court noted in Lacey v Attorney-General[54], s 14A(1) Acts Interpretation Act 1954:

“requires a purposive construction of Queensland statutes and is in the following  terms.   

Interpretation best achieving Act’s purpose

(1) In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act               is to be preferred to any other interpretation.

The term “purpose” is defined to include “policy objective”20.…

[46] Section 14A requires preference to be given to that interpretation which will best achieve the purpose of the Act. It differs from s 15AA of the Acts Interpretation Act 1901 (Cth), which requires preference to be given to a construction that would “promote the purpose or object underlying the Act” over “a construction that would not promote that purpose or object.” Section 15AA contemplated a limited choice between two constructions. 122 Assuming that s 14A is not intended to displace common law rules outside its sphere of operation, the interpretations from which the selection which it mandates is to be made must be those which comply with the requirements of those rules, none of which is antagonistic to purposive construction. 123”   

  1. [156]
    The effect of ss 882(3) and 882(4) is that the decision on the appeal before the Land Court does decide the costs of that appeal between the parties as does the order made by the Land Court disposing of the appeal in the absence of any application or order under s 882(4). This is the plain intention of these provisions. This formed part of the “matter” the subject of the appeal to this Court.
  1. [157]
    It is not to the point that s 57 does not speak specifically of costs below. Neither did the provision relied upon by the Court of Appeal in Australian Capital Holdings Pty Ltd v Mackay City Council[55] where the source of the Court of Appeal’s power rested upon r 766(1)(a) of the Uniform Civil Procedure Rules 1999.
  1. [158]
    Section 57(c) is in wide terms allowing the Land Appeal Court to make an order it “considers appropriate”. In my view, it is also a source of power to make the order.
  1. [159]
    A similar provision was used by the Australian Capital Territory Court of Appeal in Smith v Champion No 2[56]. That case involved an appeal from the Supreme Court of a judgment made dividing up assets between the appellant and respondent under de-facto property legislation[57]. On appeal the Court of Appeal allowed the appeal and made orders for a different division from that below. Costs of the proceedings below had been argued before the trial judge. However, the trial judge died before determining those costs or making any order about them. The Australian Capital Territory Court of Appeal held that it could make an order for the costs below by reference to s 37O(1)(b) of the Supreme Court Act 1933 (ACT) and went on to order those costs in favour of the appellant.
  1. [160]
    In Smith v Champion No 1[58]:

[74] No order was made by the trial judge as to the costs of the action. He heard submissions on costs, but died before he could make orders. The parties submitted that their understanding was that, if the orders of the trial judge were not disturbed on the appeal, then this court would have no jurisdiction to make an order for costs in relation to the costs of the action. If, on the other hand, the orders of the trial judge were altered on the appeal, then the parties submitted that this court would have jurisdiction to make orders as to the costs of the action.

...

[76] Although it would seem convenient for this court to deal with the costs of the action, we are not presently convinced that the court has power to do so, even in circumstances in which this court is varying the orders of the trial judge and both parties consent to the court taking that course. We would wish to be persuaded that this court has jurisdiction to make such an order. In any event, it seems to us that the parties should be given the opportunity to make submissions on the costs of the action in light of the variation to the orders which will follow from these reasons. In doing that, and in addition to what they have already put, they may wish to identify any matters they contend are relevant to the circumstances under which the action was instituted.

  1. [161]
    In Smith v Champion No 2[59]:

[9] Submissions were made by the parties to the trial judge on the appropriate order as to the costs of the trial. The trial judge died before he could make an order as to the costs of the trial.

[10] In the principal reasons, we expressed some reservations about the court’s power to make an order as to the costs of the trial (at [76]). We have now considered the matter and we have had the benefit of submissions from the parties. We think this court does have the power to make an order as to the costs of the trial. Section 37O(1)(b) of the Supreme Court Act 1933 (ACT) is the source of that power, and it provides that in relation to an order appealed from, this court has the power “to give any order it considers appropriate”.

  1. [162]
    It is true that the Australian Capital Territory Court of Appeal is a superior court, that this decision is decided on different legislative provisions, and the court did not distinguish between jurisdiction and power. However, even though the Land Appeal Court is an inferior court, and any doubt about the legislation conferring jurisdiction ought be resolved against the referral, in my view s 57(c) is quite clear. This is not a case like that considered by the Court of Appeal in Fraser Property Developments Pty Ltd v Sommerfeld (No 1)[60] where the relevant legislation under consideration was described as containing “labyrinthine and poorly integrated definitions and provisions”. In any event, it is a provision conferring power in clear terms, and ought be given a broad interpretation: Knight v F P Special Assets Ltd[61]; Oshlack v Richmond River Council[62]; Queensland Heritage Council v Corporation of the Sisters of Mercy of the Diocese of Townsville[63].
  1. [163]
    Nor is this a case like that considered by Refshuage ACJ (one of the members of the appeal court who sat in the Smith v Champion decisions) in Appellants v Council of The Law Society[64] [2011] ACTSC 133. That case was concerned with the original jurisdiction of an inferior tribunal (the jurisdiction of ACAT in a disciplinary proceeding) to award costs on the basis of a legislative provision “to make appropriate orders”. Refshuage ACJ distinguished Smith v Champion No 2 and followed a line of authority that such a provision in general terms did not confer power on such a tribunal to award costs. However, his Honour did not suggest that Smith v Champion No 2 was decided wrongly and the case before Refshuage ACJ was concerned with a very different situation to that under consideration here, involving as it did a tribunal and not a court.
  1. [164]
    To the extent the decision in Smith v Champion No 2[65] had the feature that costs had been argued below (albeit on an outcome different to what was substituted on appeal) but not decided (so that even if they had been, any costs decision would have been on a flawed basis because of the different primary orders on appeal), I accept the force of Henry J’s judgment that this could be a point of distinction relating to jurisdiction. In my view, this is in the sense that, costs having been argued below and the decision below having been appealed against (even though no costs order was made because the trial judge died) they must have formed part of the matter before the ACT Court of Appeal. I agree, for this reason, that this case does not assist the appellants in relation to whether there is jurisdiction over the costs (in the sense of whether “the matter” before this court included them), as opposed to whether, if there is jurisdiction, a broad power such as that contained in s 57(c) would be sufficient to award those costs in the absence of a provision like r 766(1)(a). I do not accept that a broad interpretation ought not be given to s 57(c) when it comes to interpreting it as a power. That said, as concerns jurisdiction, the judgment illustrates at the very least, that it is not necessary for there to have been a costs order below.  Section 37O Supreme Court Act 1933 (ACT) contained no provision similar to r 766(1)(a) Uniform Civil Procedure Rules 1999.
  1. [165]
    Here, this court is concerned with the interpretation of s 64 Land Court Act 2000 and s 49A Acts Interpretation Act 1954 so far as jurisdiction is concerned as well as ss 882(3) and 882(4) Water Act 2000. In my view, the interpretation of those provisions in their application to the facts of this case shows that the matter before this court was sufficient to be said to extend to the costs below and this court has jurisdiction over them. 
  1. [166]
    As to s 57 Land Court Act 2000 in the exercise of the powers conferred, they are clearly subject to ss 882(3) and 882(4) Water Act 2000.
  1. [167]
    In my view s 57(c) provides a source of power to make an order for the costs below, subject to s 882, and clearly does so. It is appropriate to exercise that power in this case because whilst costs were not argued for below by the appellants, this was because of the following factors – the automatic operation of s 882(3) Water Act 2000 on the decision below[66] (which had the effect prescribed by s 882(3) to determine these costs in the absence of any timely application for them by the respondent) and the fact that the appellants below lost. It is appropriate for this court to exercise the power here, where the appellants have been successful on appeal, without putting the parties to the extra costs and delay associated with a remittal if it can do so in a way which can do justice to the parties. For the reasons set out below, I am of the view that s 56 Land Court Act 2000 has no application to any consequential determination by this court of the costs below and that this Court can do justice in this case. 
  1. [168]
    Accordingly, in my view, the Land Appeal Court does have jurisdiction and power to make an order in relation to the costs below provided s 882 Water Act 2000 is satisfied and it is appropriate to do so. 
  1. [169]
    The respondent seeks to contrast the language used in the Land Court Act 2000 to the position of the Court of Appeal on an appeal to it from the Planning and Environment Court whereby the Court of Appeal is given powers by r 766(1) Uniform Civil Procedure Rules 1999 which relevantly provides:

766 General powers

(1) The Court of Appeal -

  1. (a)
    has all the powers and duties of the court that made the decision appealed from; and
  1. [170]
    A similar, though not identical, provision to s 882 Water Act 2000 existed in relation to proceedings in the Planning and Environment Court[67] being s 4.1.23 Integrated Planning Act 1997. This has since been repealed. Unlike decisions of the Land Court, for which there is an appeal to the Land Appeal Court, before any further appeal (by leave) to the Court of Appeal, appeals from the Planning and Environment Court go directly to the Court of Appeal (with leave). In Australian Capital Holdings Pty Ltd v Mackay City Council[68]  the Court of Appeal used this power to make an order for costs below. The jurisdictional points relevant to the determination of the present case were not the subject of that judgment.
  1. [171]
    The respondent further contrasts this to the language in other statutes in other jurisdictions.
  1. [172]
    As to this, merely because different methods have been adopted elsewhere in the drafting of statutory provisions conferring jurisdiction on appellate courts, does not mean that these are the only methods or ways of conferring a like jurisdiction.
  1. [173]
    The real issue in this case is the correct interpretation of the particular statutory provisions relating to this appeal to the Land Appeal Court.
  1. [174]
    Counsel for the appellants relied on a decision of the Victorian Court of Appeal in AED Oil Ltd v Puffin FPSO Ltd[69]  and in particular a passage at [3]. Without a comprehensive review of the legislative provisions (all of which are not set out in the judgment) relating to the powers of that court on appeal, the broad statement relied upon is of little use insofar as the question here is concerned. In any event, the Victorian Court of Appeal is a superior court and the statement made does not seem to relate to the existence of the jurisdiction of the Court but rather the exercise of an existing power.
  1. [175]
    It is also contended by the respondent that the Land Court (and it alone) remains possessed of jurisdiction to make a costs order under s 882 notwithstanding the appeal to this Court, so that if the appellants want to seek the costs below they need to make application to the Land Court (but having regard to the changed circumstances in that this Court has now allowed the appeal and made different orders). I doubt very much that the Land Court retains any jurisdiction now over this case in relation to the costs of the appeal to it. This is because the Land Court did decide the costs in the sense discussed above by virtue of the operation of s 882. That decision has been brought before this court on the appeal from that decision. In my view, accepting that an application for costs under s 882(4) need not be made contemporaneously with the delivery of the Land Court’s reasons for judgment[70], given the parties at no time sought to make any application to the Land Court for costs under s 882(4) on the basis of the judgment it delivered (so as to disturb its effect so far as costs were concerned) at some point in time the Land Court became unable to deal with these costs by virtue of the special statutory provisions in respect of costs in ss 882(3), 882(4).
  1. [176]
    The respondent sought to rely on the decision of the Land and Environment Court of New South Wales in Donald Crone & Associates v Bathurst City Council[71]  for its submission that there was nothing to stop the appellants from now making an application to the Land Court for costs of the proceedings in the Land Court. Unlike the Land Court, the Land and Environment Court is a superior court. Under s 69 Land and Environment Court Act (NSW) costs of or incidental to the proceedings in that court were in its discretion, but it was the practice in planning and building matters not to order the unsuccessful party to pay costs, save in exceptional circumstances. An application for costs was filed on 28 November 1988, some weeks after the primary decision on 19 October 1988 and came on for hearing on 9 December 1988. It was argued the application came too late and the court was functus officio. Cripps J held the court was not functus officio reasoning:

“I trust I do no disrespect to the argument advanced by Ms Blackman when I present short reasons why her submission that the Court is “functus officio” is doomed to fail. The power of the Land and Environment Court to award costs is to be found in s 69 of the Act. The Court was not asked to determine the question of costs in matter B 10152/88 until 9 December 1988. So far from being “functus officio”, the Court never considered the question of costs until the present application was made to the Court. In my opinion, an order for costs may be made by the Court at any stage of the proceedings on or after their conclusion. Mis Blackman could point to no case establishing the proposition that a superior court of record, having the power to order costs in proceedings was deprived of the jurisdiction to make an order because an application for costs was not made at the time the Court either upheld or dismissed the proceedings. Accordingly, I am of the opinion that I have the jurisdiction to entertain the application.”

  1. [177]
    However, this decision was not dealing with a costs provision similar to s 882(3) which takes an automatic effect unless an order to the contrary is made under s 882(4). It can be accepted that an order under s 882(4) need not be applied for and made contemporaneously with the handing down of the reasons. However, the scheme of the costs provision in s 882 Water Act 2000 contemplates any application ought be brought within a reasonable time after a party has been able to consider the reasons[72] and if it is not brought within such time the operation of s 882(3) on the decision cannot be displaced, save on further appeal where the primary decision is reversed or altered in such a way as to disturb the decision which gave rise to the operation of s 882(3) below.   
  1. [178]
    In my view, this arises from the correct interpretation of s 882 of the Water Act 2000 which, in my view, implicitly requires an application for costs under s 882(4) to be brought within a reasonable time. The whole purpose of ss 882(3), 882(4) is to limit the making of costs orders and the occasions on which costs are applied for. This displaces s 38(4) Acts Interpretation Act 1954 which talks of doing the thing “as soon as possible” and is as a result of the operation of s 882(3) on the primary decision (which is prima facie intended to be determinative of the costs without any costs order being made in many cases) rather than the doctrine of functus officio.
  1. [179]
    The appellants sought to argue the question of costs had merged in the order of the Land Court. No authority was cited for this proposition. Whilst it is true that once an order is perfected the ability to vary it is very limited, the cases in relation to supplemental orders in relation to the doctrine of functus officio are against any merger. The ability to make an order under s 882(4) is not affected by the timing of the perfecting of the order in the appeal before the Land Court, unless that order specifically deals with costs (by either allowing them or not). A subsequent order under s 882(4) (where no order about costs is made in the orders perfected) would not be precluded by the earlier orders per se but would be supplemental to them[73]
  1. [180]
    That said, cases relating to functus officio need to be examined against the statutory framework of the particular matter at hand. Whilst an order for costs under s 882(4) would not contradict the primary orders, and in that sense be a supplemental order not attracting the doctrine, the whole purpose and utility of provisions like ss 882(3) and 882(4) would be lost if the position were as contended for by the respondent. The purpose of these provisions was not to require the incurring of additional time, trouble and costs. The prima facie position under s 882(3) is an automatic determination of no costs unless an order is made under s 882(4) in an appropriate limited number of cases. As noted above, the scheme of the costs provision in s 882 Water Act 2000 contemplates any application ought be brought within a reasonable time after a party has been able to consider the reasons and if it is not brought within such time the operation of s 882(3) on the decision cannot be displaced, save on further appeal where the primary decision is reversed or altered in such a way as to disturb the decision which gave rise to the operation of s 882(3) below.     
  1. [181]
    The “decision” of the Land Court which was appealed to this court encompasses costs because of that decision’s effect on the costs below under s 882(3) Water Act 2000 so as to allow this court the power to make orders about those costs by virtue of s 57 Land Court Act 2000. The decision started time running to apply for an order under s 882(4). None was applied for in time or at all. Accordingly, the final position below was that s 882(3) could not be displaced except by an appeal which disturbed the primary substantive judgment on the merits, and each party had to bear their own costs.
  1. [182]
    It should be clearly understood that nothing in this judgment deals with the position where the Land Court expressly makes an order for costs below which is not appealed against. The Land Court Act 2000 by s 64 allows for an appeal against “all or part of the decision of the Land Court”. If an appellant by its notice of appeal appeals against only part of the decision below then different considerations arise. So, for instance, if the Land Court allowed an appeal and made a costs order in favour of the appellant below and the respondent below appealed to this court against the allowing of the appeal but did not appeal against the costs order, if this court allowed the respondent’s appeal and substituted orders dismissing the appeal to the Land Court, the Land Appeal Court would have no jurisdiction or power to make any order for costs in favour of the respondent of the costs below (because it did not appeal in relation to the costs order or the decision to make it).[74]  The appellant in those circumstances will have chosen to restrict the “matter” before this Court to exclude the costs below. Whether leave could be given by the Land Appeal Court in such a case to allow an amendment of the notice of appeal, so as to give it jurisdiction and power to disturb the costs order below, need not be considered.
  1. [183]
    I have had the advantage of reading in draft the reasons of Henry J. His Honour raises the existence of s 56 Land Court Act 2000 as an impediment to jurisdiction in the Land Appeal Court to dealing with the costs below because the determination of the costs below, by virtue of s 882 Water Act 2000 is not a straightforward matter, but one which would require (in many cases, if not all) additional evidence to be placed before the Court in order to properly determine the issue. As s 56 restricts the evidence which can be presented to the Land Appeal Court, this favours an interpretation that there is no jurisdiction in the Land Appeal Court to determine these costs. 
  1. [184]
    Respectfully, I am unable to agree. In my view, s 56 is not an impediment to this court exercising jurisdiction.
  1. [185]
    As I am departing from his Honour’s view, and this is an important point, it is necessary to explain why.
  1. [186]
    The appeal to this court is by way of re-hearing and is not an appeal stricto sensu. Accordingly, this Court may admit further evidence that was not before the court below in appropriate circumstances. Section 56 prescribes the pre-conditions for doing so. In addition, in my view, for the reasons expressed in Gallo v Chief Executive, Department of Environment and Resource Management[75] s 56 does not prevent this Court from acting on concessions made by the parties on the hearing of the appeal where it is appropriate to do so. Whether or not it is appropriate is a matter for the Court to decide. This Court is not bound to so act.
  1. [187]
    It can be accepted that there may well be additional evidence a party may wish to rely upon in arguing for costs under s 882(4) Water Act 2000 in relation to the costs below. The same may be said about the costs in this Court – for example if a party wished to rely on a Calderbank offer made to settle the appeal to this Court or other circumstances. 
  1. [188]
    That said, s 56 does not prevent a party from doing so because in my view, it is simply inapplicable.
  1. [189]
    In my view s 56 simply has no application to the determination of the costs below in the context of this case.
  1. [190]
    This is not an appeal against a costs determination like in Williams. In Williams, an application was made under s 882(4) Water Act 2000 and dismissed and an appeal brought against the decision dismissing the application for costs. In these circumstances s 56 would apply, and indeed this court refused leave to those appellants to adduce evidence under it.
  1. [191]
    Rather, this is a case where as part of a consequential order of this court dealing with the effect of its substantive judgment allowing the appeal, this court in its appellate jurisdiction is determining the consequential issue of the costs below having regard to s 882(4) Water Act 2000.
  1. [192]
    In my view s 56 is limited to deciding the appeal: s 56(1). It is not directed at any application for consequential costs orders flowing from the primary substantive judgment given on appeal.
  1. [193]
    In the context of this case, the consequential orders include the costs of the appeal itself, and the costs below. I refer to the reasons given above at [103].
  1. [194]
    By saying this, I am not saying that s 56 is inapplicable to every type of consequential order. Orders in a primary substantive judgment may contain some consequential orders directed at the substance of the decision below and which could only be determined as part of the substance (whether as part of the primary judgment or later). These orders, being part of the substance of the decision made by this Court, would be subject to s 56. It might be there are other types of consequential orders made after the primary substantive judgment which are also subject to s 56 and other consequential orders which are not.
  1. [195]
    The precise limits of s 56 do not fall for determination in this case and are best left for another day. That said, this case highlights the problems this unusual provision may cause. Its presence is anomalous for a court with the philosophy espoused in s 55.
  1. [196]
    As to the form of the notice of appeal, insofar as this relates to jurisdiction, the appellants appealed against the decision below. There was no need to specify the automatic effect that decision had in respect of costs under s 882(3) Water Act 2000 in the notice of appeal. Paragraph 5 of the notice of appeal and the amended notice of appeal is in my view wide enough to encompass a claim for an order for the costs below, even if paragraph 4 is interpreted narrowly or any ambiguity in it is resolved against the appellants.
  1. [197]
    The effect of the judgment of Henry J is an explicit finding that there is still an ability in the Land Court to make orders under s 882(4) Water Act 2000 following the appeal to this Court. In my view, the Land Court has long since lost any power to do so because ss 882(3) and 882(4) Water Act 2000 required any application for costs to be made within a reasonable time of the giving of the primary decision by the Land Court, and no such application was made. If I am wrong about the exclusion of s 38(4) Acts Interpretation Act 1954 no such application was made “as soon as possible.” I do not accept that orders made by this Court reversing the Land Court’s primary judgment re-set the time to apply to the Land Court under s 882(4) (whether it is “as soon as possible” or “a reasonable time”) or re-enliven any ability to do so. If the decision is based on the premise that s 38(4) is excluded and the time is unlimited, then I cannot accept that parliament intended not to place any time limit on applying for orders under s 882(4). Nor do I think that r 668 UCPR could have any application because there was no specific order made which dealt with costs from which relief could be obtained to trigger r 668(1)(a) or which could trigger an application under r 668(1)(b). Whilst the orders of this court reversing the primary decision might be said to be in substitution for the Land Court’s decision and order (s 57(b) Land Court Act 2000), it seems to me that this does not then re-invoke any power in the Land Court to deal with the costs below.
  1. [198]
    In my view doubts about whether the power in s 882(5) Water Act 2000 could be exercised if this Court acceded to the appellants’ submissions and made a costs order under s 882(4)(b) do not dictate a different result. In my view, the power in s 882(5) would be able to be exercised by this Court if this Court did make a costs order under s 882(4)(b) in relation to the costs below by remitting the determination of compensation to the Land Court. This is because, this extra power arises out of the costs, which are a matter before this Court for the reasons explained above. Any order for compensation under s 882(5) would be an order consequential on the costs order.    
  1. [199]
    I agree with Henry J that s 57(a) Land Court Act 2000 is not the sole source of this court’s power to remit. In my view, s 57(c) is wide enough to include a power to remit, as being an order the Land Appeal Court considers appropriate. In this respect, I note the approach of Gaudron J referred to in Knight v FP Special Assets Ltd[76].

Costs of the appeal in the Land Appeal Court – is s 882 Water Act 2000 applicable?

  1. [200]
    The second point dealt with in this appeal of general importance was the source of the power to award costs of the appeal in the Land Appeal Court and whether such power was governed by s 882 Water Act 2000.
  1. [201]
    In the written submissions of both parties as originally made, both sides contended that the power to award costs given to the Land Appeal Court by ss 34 and 72 Land Court Act 2000 was, by s 34(1) subject to the contrary provisions of ss 882(3), 882(4) Water Act 2000. Later, following the Court indicating it wanted submissions on the position if s 882 did not apply, the appellants contended that costs were not governed by s 882 after all and the respondent contended in writing that they were. In oral argument though, Mr Hinson QC for the respondent adopted the position that s 882 does not apply.  
  1. [202]
    Again, even though the parties seem to have reached a mutual position (which is the reverse of their original mutual position on this issue) as this matter affects the power of the Court, the Court itself must determine the correct position.
  1. [203]
    The appeal to this Court does not derive from any part of the Water Act 2000. Rather, it is derived by virtue of s 64 Land Court Act 2000. This is to be contrasted with the position of the Land Court. The appeal to it, in the present case, derived from Chapter 6 of the Water Act 2000 and was clearly governed by s 882 of that Act.
  1. [204]
    Section 882 of the Water Act 2000 says nothing about any the costs of any subsequent appeal from the Land Court to the Land Appeal Court. Accordingly, it is not a contrary provision for the purposes of ss 34(1) and 72 Land Court Act 2000 and has no application to the determination of the costs in the Land Appeal Court.
  1. [205]
    Rather such costs are governed by s 34 (through the application of s 72). Again, if this court makes no order about costs, then each party to the appeal must bear their own costs of the appeal in this court.
  1. [206]
    In this context, reference can be made generally to the decision of the High Court in O'Mara v Harris[77] and the approach taken there as well as to the decision of the Land Appeal Court in Chrismel Pty Ltd v Department of Natural Resources and Mines[78]. In Chrismel the Land Appeal Court held that the “appeal” referred to in s 882 did not encompass the earlier application to review but was concerned only with the appeal to the Land Court.  

The Costs Below – Applying s 882(4) Water Act 2000 and remittal

  1. [207]
    The costs below are subject to the application of s 882 Water Act 2000.
  1. [208]
    Accordingly it is necessary for the appellants to demonstrate that one or other of the matters set out in s 882(4) have been made out in order to enliven the power to award costs and it is then a matter for the court to determine whether it is appropriate to make an award of costs.
  1. [209]
    Whilst I am of the view there is jurisdiction in this court to consider this issue, the further question arises whether the issue ought be remitted to the Land Court.
  1. [210]
    A remittal ought not occur unless there is a reason making this appropriate in the interests of justice. Subject to that, if this court can determine the matter it ought do so, so as to avoid the further costs and delay to the parties associated with a remittal[79].
  1. [211]
    The question of costs in this appeal was heard in conjunction with the hearing of the costs appeal in the Williams matter. Williams had succeeded below on the substantive issue related to the grant of a water licence. These appellants did not but succeeded before this court. Williams applied for costs below and their application was dismissed. They appealed.   
  1. [212]
    The parties appear to have proceeded on the basis that the material in relation to the Williams costs appeal was before this court for the purposes of this appeal. There was no formal application made by either side to put in this evidence on the hearing of this appeal. The bulk of it was relevant and admissible, although some of it was not (such as the documents relating to Calberbank offers relating exclusively to the Williams).
  1. [213]
    Can regard be had to this material to the extent it is relevant here? I think so.
  1. [214]
    Section 55 Land Court Act 2000 gives power to this court to inform itself in any way it considers appropriate, and to act according to “equity, good conscience and the substantial merits of the case”.
  1. [215]
    In the appellants’ written submissions on costs filed 7 February 2014, the appellants made specific reference to and reliance on the Affidavit of Leslie Manning filed in the Williams appeal. From the way the case was conducted, whilst the respondent’s primary submission was that there was no jurisdiction in this court to determine the costs below, an alternative submission was made that:

“The respondent submits that, for the reasons given by the Land Court in the Williams application [2013] QLC 53, the Gallos are not entitled to an order for their costs of the proceedings in the Land Court.[80]”

  1. [216]
    In my view, whilst not formally read on the hearing of the limited oral arguments over costs, this material was before this Court for the purpose of determining them in this matter and I shall have regard to it (where relevant) in determining the costs. I also note that, in any event, some of this material as contained in the Affidavit of Mr Manning had been tendered in the substantive proceedings below and was properly before this Court in any event: see eg Exs 12, 13, 14, 15, 16, 17, and 18.
  1. [217]
    This material was sought to be supplemented with the further material referred in [98]-[109] above.
  1. [218]
    In addition, in the oral hearing of the Williams appeal, submissions were made by both sides touching on some common matters relevant to both this appeal and the Williams appeal. This court earlier directed limited oral argument in relation to the hearing of this appeal because of this and it is appropriate in these circumstances to also give consideration to the oral submissions of both sides to the extent they are relevant here.
  1. [219]
    That said, the reliance which was made on that hearing on the decision in Williams v Chief Executive, Department of Environment and Resource Management[81] presents a different issue. This related to orders relating to conditions on the licence for the Williams. It did not relate to the removal of any condition to do with the present appellants because they lost below. It was not before this Court in the appeal record in the hearing of the substantive appeal, nor in the Williams appeal against refusal of costs of their successful appeal below. None of the affidavit material related to that application was before this Court. In the Williams appeal evidence of the decision could only be given if s 56 Land Court Act 2000 was satisfied or it was the subject of a concession on which it was appropriate for this court to act. It was not. The decision was simply handed up during oral argument with some oral argument directed to it[82]. This decision was not referred to in the appellants’ extensive written submissions on this appeal or on the Williams costs appeal. There was no submission made in the extensive written submissions which would have put the respondent on notice that this decision would be relied upon against the respondent to mount an argument for costs against it in either appeal. There was no affidavit material placed in the appeal books dealing with it, or sought to be led in this appeal, and in the Williams appeal to this Court there would have been difficulty doing so because of s 56. No argument was mounted in the extensive written submissions that costs ought be awarded against the respondent based on it in this appeal.
  1. [220]
    For this appeal, s 56 did not apply to it, however, had an argument been mounted on it in written submissions, the respondent may well have wished to lead evidence about it as to circumstances surrounding it. 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 the appellants cannot rely upon the judgment for the determination of costs in this appeal, or in the Williams appeal. The point ought also be made that the relevance of the decision to the appellants here (who are the Gallos and not the Williams) is even further removed because these appellants did not have any condition imposed or removed by the Land Court (because they  [the Gallos] lost below).
  1. [221]
    Nor do I think this ought be the subject of a remittal order to allow the appellants to attempt to mount an argument about the Williams removal or what happened in relation to the condition sought to be imposed by this Court. The appellants had their chance to put in evidence if they wished on the hearing of this appeal. Indeed they brought the application referred to earlier. A remittal would only increase the costs and give the appellants a second go. There is a public interest in finality. This would really be giving them a re-run in circumstances where it would be unreasonable to do so. If the argument was to be relied on here, it was unreasonable not to have brought it forward properly and to have adduced evidence to support the underlying basis for it.
  1. [222]
    The decision insofar as it may be relevant states:

[1] On 5 April 2012, I gave my decision with respect to the appeal by Mr and Mrs Williams against the then Chief Executive, Department of Environment and Resource Management.1 The matter related to an application for a water licence. As part of the orders that were made on 5 April 2012, the parties were to seek to reach agreement as to special conditions to be included in the water licence.

[2] What has transpired is that there is now some dispute as between the parties as to what conditions should be included in the water licence. One aspect of that dispute can be dealt with immediately.

[3] The special condition that was anticipated by the orders of the Court on 5 April 2012 are those as set out in paragraph 86 of the reasons for decision of the same date. I have now been informed that it is the position of both parties that it is not technically feasible to appropriately monitor and/or measure the water licence in the way originally anticipated by the expert report of Mr Smith.

[4] As the proposed special condition in paragraph 86 was being put in place following the precautionary principle and for the benefit of the respondent, and, as the respondent now considers that special condition not technically feasible, and as the appellants are content not to have the special condition, in my view it would be fruitless to proceed with a special condition of the nature of that proposed by paragraph 86 of the original reasons.

[5] Accordingly, I dispense with the need for a special condition to the water licence consistent with paragraph 86 of my reasons for decision of 5 April 2012. [emphasis added]

  1. [223]
    In my view, the respondent was not “waiving” the condition. It considered the condition was not “technically feasible” in the way originally contemplated by Mr Smith.
  1. [224]
    The power of the court below to have dispensed with the condition is not referred to expressly in the judgment. The judgment below could only have been varied by the court below in very limited circumstances such as the application of the slip rule (which this most certainly was not) or such as the application of r 668 Uniform Civil Procedure Rules 1999 (applicable to the Land Court by virtue of r 4 Land Court Rules 2000) which this may have been.
  1. [225]
    However, the circumstances surrounding this variation were not before this Court in any satisfactory way and in my judgment the dispensation of the condition cannot be relied upon in these circumstances as a consideration or as a principal plank in the awarding of a substantial part of the costs below against the respondent or to make findings that the major part of the hearing below was taken up with the determination of an academic issue or a non-genuine issue such that the respondent ought be visited with these costs and on an indemnity basis. This is a serious finding to make. I am not prepared to make a finding that a non-genuine issue or academic issue was pursued below without satisfactory evidence having that effect and without a fair opportunity having been given to the respondent to answer same. The judgment, even if it were appropriate to have regard to it, does not (of itself) prove this.
  1. [226]
    I also note in passing that the learned member below had had the advantage of hearing all of the evidence in the appeal below and had also heard the application below in the Williams appeal to dispense with the condition but did not in the Williams costs judgment find that the dispute relating to the hydrological evidence was academic or improperly pursued by reason of the dispensation of the condition.              Nor is such an argument referred to in his judgment. I also note that this Court was not referred to the decision removing the Williams condition when it gave its substantive judgment. There is no evidence before this Court about what occurred between the parties with that condition. If this was to form a relevant consideration or principal plank to mount an argument for costs, this should have been made clear, and the evidence sought to be led.               

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

  1. [227]
    Something ought be said as to the general interpretation of this provision and its proper application.
  1. [228]
    Section 882(4) is directed at the conduct of the respondent to the application for costs in each of the instances given in ss 882(4)(a) to 882(4)(g). That is its focus.
  1. [229]
    The conduct of the applicant for costs is irrelevant in relation to the power to award costs under s 882(4) save insofar as it informs a consideration of the conduct of the respondent in assessing whether one or more of the matters in ss 882(4)(a) to 882(4)(g) has, or have been, established.
  1. [230]
    So, if the respondent’s conduct is alleged to have been vexatious within s 882(4)(b) if the applicant’s conduct exacerbated or caused the respondent’s conduct which is said to be vexatious, this would be a relevant factor to take into account in considering whether the respondent’s conduct was vexatious in the circumstances. The applicant’s conduct, might also be relevant in the sense of giving context and colour to the respondent’s conduct.
  1. [231]
    This is not to say that the applicant’s conduct generally might not also be relevant when it comes to exercising any discretion which might be enlivened once power to do so is established. It might be. The discretion is not exercised in a vacuum.
  1. [232]
    The second matter to be noted about s 882(4) goes to both jurisdiction (in the sense here of the power to award costs) and discretion. On its face, only one of the matters in ss 882(4)(a) to (g) need be found before the court may award costs. The question then arises whether the costs which may be awarded are only those which bear some causative or rational relation to the matter found to invoke the power or whether costs are then at large.
  1. [233]
    In my view, the issue is governed by the express limitation in s 882(4) itself. The power to award costs is “as it [the court] considers appropriate in the” listed circumstances.
  1. [234]
    It would seem to me that even if the power to award costs is at large that in making an order that is “appropriate” it is a relevant consideration whether the costs sought bear any rational or causative relation to the matter found to enliven the power to award them (though it may not necessarily be a pre-condition that they are causative as such but there must be at least some rational relation between the costs awarded and the trigger)[83].
  1. [235]
    That said, I am of the view that the matter is probably one of power having regard to the wording of s 882(4) but, as noted above, it is hard to see in most cases, that a different result would be obtained if the matter were one of discretion.[84]
  1. [236]
    For instance, s 882(4)(b) distinguishes between “the appeal, or part of the appeal” and ss 882(4)(d), 882(4)(e), and 882(4)(f) speak of costs a party has incurred because of particular conduct. To award costs of the whole appeal when a party only incurred some additional costs because of say the matter in s 882(4)(e) would not be appropriate, even if the effect of s 882(4) was that the costs of the whole appeal were at large.
  1. [237]
    It would also not be consistent with the principle that costs are not awarded as a punishment, but rather are compensatory.
  1. [238]
    The alternative argument (that if a party wishes the protection of the position in s 882(4) it lies in its hands not to engage in any of the conduct in s 882(4) otherwise it exposes itself to the costs of the whole appeal regardless of what breach it commits of s 882(4) or the effect of that breach on the costs incurred) seems an extreme one and not in accordance with the plain intent of s 882(4) to award costs for the appeal “as [the court] considers appropriate” in the listed circumstances.
  1. [239]
    For instance, it is not an infrequent occurrence for a party not to comply with directions. If a party were a few days late and the other party incurred costs because it had to write to the other side pointing out the breach and asked for it to be remedied and it was remedied relatively quickly with no other increase to the costs, it would seem a bizarre result that the costs of the whole appeal were at large under s 882(4)(e) and that the party in default was at risk of the whole of the costs of the appeal as a result.
  1. [240]
    The other aspect of this case relates to the correct interpretation of s 882(4)(b). Both sides’ counsel placed reliance on the decision of the Court of Appeal in Mudie v Gainriver Pty Ltd (No 2)[85]. That decision dealt with the interpretation of s 7.6 Local Government (Planning and Environment) Act 1990 which is in similar, but not identical terms to ss 882(3), 882(4) Water Act 2000. It may be that those differences mean that the reasoning in that case is not necessarily applicable to the correct interpretation of s 882(4)(b) and that in view of the compensation provisions of s 882(5) mean that in context, the meaning to be ascribed to “frivolous or vexatious” is not necessarily the meaning which was ascribed to those terms in the context of s 7.6 Local Government (Planning and Environment) Act 1990, which contained no compensation provision.
  1. [241]
    For reasons which follow, it is not necessary to resolve this, because even adopting the more liberal view taken in Mudie v Gainriver Pty Ltd (No 2)[86] in my view the appellants have failed to make out this ground. 
  1. [242]
    The other aspect of the interpretation of s 882(4)(b) relates to timing. The appellants seek to distinguish the decision of the Land Appeal Court in Chrismel Pty Ltd v Department of Natural Resources and Mines[87]  where the Court held:

“[62] The “appeal” for the purposes of s 882 is therefore confined to the appeal from the review decision of the Land Court. While an appeal against the original decision by way of review must occur before an appeal to the Land Court against the review decision may be pursued, so that the appeal process commences with the application for review, the two areas of appeal are quite distinct. The initial appeal against the original decision and the consequent internal review decision do not form part of the separate and further appeal to the Land Court which is the subject of s 882.

[63] We therefore reject the submission that any failure by the respondent in discharging its responsibilities in respect of the internal review itself constituted a relevant failure to discharge its responsibilities “in the appeal” for the purpose of s 882(4)(g) of the Act.”

  1. [243]
    The appellants argue that s 882(4)(b) ought be interpreted differently to s 882(4)(g) in the sense that the conduct which can be referred to in deciding whether the court is satisfied “the appeal, or part of the appeal, to have been frivolous or vexatious” is not confined to conduct in the appeal but extends to conduct engaged in before the appeal was instituted.
  1. [244]
    In my view, in determining whether the appeal or part of it has been frivolous or vexatious for the purposes of s 882(4)(b), the court is not confined to conduct which occurred “in the appeal”. It is undoubtedly the case that “the appeal” referred to in s 882(4)(b) is the appeal to the Land Court and does not include the antecedent review decision or any subsequent appeal from the Land Court. That said, to determine whether the appeal to the Land Court (or part of it) has been frivolous or vexatious necessarily involves looking at the appeal in context and some of the relevant conduct and context may have occurred prior to the appeal commencing, or afterwards.
  1. [245]
    In my view s 882(4)(g) is in quite different terms and is confined to a party’s discharge of its responsibilities “in the appeal”. It is clearly confined to the appeal in the Land Court and the proper discharge of a party’s responsibilities in it and not the discharge of responsibilities at any earlier or later stage: Chrismel Pty Ltd v Department of Natural Resources and Mines[88]. That said, the way a party has acted earlier, or later, while of itself not a trigger, may in some cases give colour to that party’s actions “in the appeal” and thus give context to them. I do not read Chrismel as requiring a blinkered approach to the interpretation of a party’s actions in the appeal, or preventing those actions from being able to be viewed in their full context. 

The costs below – the arguments and determination of them in this case

Section 882(4)(b) – vexatious defence of the appeal below

  1. [246]
    It is argued in this particular case that the respondent’s conduct in the way it dealt with other applicants for water licences rendered the way it conducted this appeal vexatious or frivolous. The Land Court made quite scathing comments and findings about the respondent’s conduct in how it dealt with the issue of water licences to others. There is no doubt that the appellants in this case were treated differently from the way many others were and there is no doubt that that may be seen as inequitable treatment. There is also no doubt that the respondent issued licences it ought not to have issued and for amounts it ought not to have. The appellants below sought to mount an argument that they should have been treated the same as these other applicants as a matter of fairness and ought to have been issued with a water licence for the full amount applied for.
  1. [247]
    I do not accept the respondent’s contention that this was plainly unarguable.
  1. [248]
    There has been no appeal from the learned member’s judgment below on the unfairness point. Nor do I suggest there should have been. However, merely because a party has been unsuccessful does not mean the point was unarguable.
  1. [249]
    The appellants were some of the last few applicants for a water licence in the relevant area and the Act did contain mention of “providing for the fair, orderly and efficient allocation of water to meet community needs”. Section 210 Water Act 2000 did not prescribe any one factor as being necessarily decisive and the consideration of s 210 by the Court of Appeal in De Tournouer v Chief Executive, Department of Environment and Resource Management[89] and the relevant water resource plan and resource operations plan did not involve a situation where the fairness argument was mounted as an issue.
  1. [250]
    In the proceedings below (see judgment below at [33]) it was conceded by the respondent, that notwithstanding its maladministration of the Act, there was still plenty of water.
  1. [251]
    The appellants’ real complaint is that had they got through before the change in approach the appeal, and substantial amounts of costs expended by them, would not have been necessary; their application would simply have been allowed at the full amount applied for.
  1. [252]
    That said, I do not think that the respondent’s conduct made the respondent’s defence of the appeal or any part of it, vexatious or frivolous. The respondent has done what it ought to have done all along. The respondent is charged with administering the Act. I do not think the respondent can be criticised for seeking to do so properly in the case of the appellants or for arguing in the appeal that it ought do so properly. This is what it ought to have been doing all along. Had the respondent continued to mal-administer the Act in the case of these appellants, then the respondent would not have been performing the respondent’s functions as required by the Act. The respondent’s position in this respect was vindicated by its success on the unfairness point.
  1. [253]
    I make it clear that I do not decide this point on the basis that because such conduct occurred before the appeal it cannot be considered. Rather, even considering this conduct (which does provide the context to considering how the respondent conducted the appeal) this does not show the appeal or any part of it was frivolous or vexatious within s 882(4)(b).
  1. [254]
    It is complained that the respondent did not amend the existing water licences which had been issued wrongly and that by not doing so this made the appeal vexatious or frivolous. Given the concession that there was plenty of water regardless, I do not see how this conduct had any effect on the appellants. The respondent accepted there was sufficient water to cover their application. The issue for the appellants in the appeal on the unfairness argument was that they be treated the same as others and have their whole application granted. Amending or not amending existing licences had no impact on this argument and the facts underlying it and had no effect on their alternative case upon which they have ultimately succeeded.
  1. [255]
    I deal separately below with each of the other arguments made by the appellants as to why they should have their costs. The appellants also argued that when all these matters were considered in globo that this made the conduct of the defence of the appeal or part of it frivolous or vexatious within s 882(4)(b). It may be accepted that there is an overlap between the listed circumstances in s 882(4)(a) to (g) and that they are not mutually exclusive in their operation.
  1. [256]
    That said, having considered the matter in globo I am of the view that it cannot be said that there has been any breach of s 882(4)(b) by the respondent.

The other arguments - ss 882(4)(f) and 882(4)(g)

  1. [257]
    As to s 882(4)(f) the appellants complain that they “have incurred costs because the respondent introduced, or sought to introduce new material by introducing a new expert after engaging in ‘witness shopping’.”
  1. [258]
    As to the application of s 882(4)(g), which allows costs to be awarded if “a party to the appeal does not properly discharge its responsibilities in the appeal”, there is a wide variety of conduct to which s 882(4)(g) can have application.
  1. [259]
    I accept that the status of the respondent as a model litigant affects its responsibilities in the appeal for the purposes of considering s 882(4)(g) insofar as that conduct involves a breach of a responsibility imposed on a model litigant in the conduct or defence of the appeal.
  1. [260]
    The appellants complain that:

“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 allocations in Area B and failing to consider a reasonable offer.”

  1. [261]
    As to the argument based on “unlawfully assessing water allocations in Area B”, these water allocations were assessed outside of the respondent’s “responsibilities in the appeal” as referred to in s 882(4)(g). The concept in s 882(4)(g) is confined to a party discharging its responsibilities in the appeal. A party’s responsibilities in the appeal relate to its conduct of the appeal itself. The respondent’s allocation of other water licences was not conduct which occurred in the appeal or as part of its responsibilities in the appeal. 
  1. [262]
    As to the “absence of policy argument”, all of the conduct complained of taken at its highest is conduct which did not occur in the appeal or as part of the respondent’s responsibilities in the appeal.
  1. [263]
    In any event, I do not see it as a breach of the respondent’s responsibilities in the appeal (or outside of it) not to have continued in place a policy to issue water licences contrary to the Water Act 2000 and to have required the appellants to comply with the provisions of the Act. It was not a breach of the respondent’s responsibilities in or outside of the appeal, to have insisted on the appellants complying with the Act.
  1. [264]
    Further, the respondent did not breach any responsibilities in the appeal by not amending the already issued water licences. Indeed, the over-allocation of water had no effect on the determination of this appeal on its merits. The respondent conceded below there was sufficient water available. Accordingly, failure to amend any existing licences had no effect on the appeal.
  1. [265]
    As to the witness shopping argument, merely because a litigant changes from one expert to another does not mean that the litigant is not acting in a proper manner in the conduct of litigation, or for the purposes of s 882(4)(g) is not discharging its responsibilities in the appeal. There may be legitimate reasons for such a change. A party cannot be criticised simply because an expert is changed. That fact, of itself, does not demonstrate improper conduct. All litigants desire to present their cases in the best possible light. That said, they may not do so improperly, when judged in the context of the litigation and the rules and practices of the Court in the present era.
  1. [266]
    Expert evidence has been the subject of much debate in England, Australia and elsewhere in recent times and this has led to reforms in the law resulting in greater attempts being made by the courts to ensure that expert evidence is presented in such a way as to enable the court to get to the truth of the matter. Some jurisdictions have gone as far as to abolish completely the traditional adversarial approach and to require the appointment of either a single expert or a court-appointed expert[90]. Other jurisdictions have adopted different methods. Some jurisdictions restrict and regulate the parties’ communications with experts. 
  1. [267]
    The Land Court is a specialist court, a feature of which is the determination of many matters involving expert evidence. The Land Court has never adopted a single expert approach but has allowed the parties to each call experts. That said, the court has taken its own steps to address the problems expert evidence in an adversarial setting sometimes engender. At the time of the appeal below the practice of the Land Court in cases such as this was to make directions dealing with the way in which experts were to prepare and present their evidence. That was done in the present case.
  1. [268]
    Recently, the Land Court Rules 2000 were amended with specific provisions dealing with experts[91]. Those amendments were not in place at the time of the appeal below.
  1. [269]
    What then amounts to improper conduct which could be described as expert shopping? Changing an expert for a legitimate reason does not. A legitimate reason might be that the expert has become incapable or unwell or unwilling to proceed in the case. There might well be many other legitimate reasons.
  1. [270]
    It is difficult though to define what kind of circumstances where changing an expert is not proper. That is not to say that expert shopping cannot occur or cannot be recognised by the courts when it does occur.
  1. [271]
    In Thorn v Worthing Skating Rink Company[92], Jessel MR (speaking nearly 140 years ago) said this:

“Now, in the present instance I have, as usual, the evidence of experts on the one side and on the other, and, as usual the experts do not agree in their opinion. There is no reason why they should. As I have often explained since I have had the honour of a seat on this Bench, the opinion of an expert may be honestly obtained, and it may be quite different from the opinion of another expert also honestly obtained. But the mode in which expert evidence is obtained is such as not to give the fair result of scientific opinion to the Court. A man may go, and does sometimes, to half-a-dozen experts. I have known it in cases of valuation within my own experience at the Bar. He takes their honest opinions, he finds three in his favour and three against him; he says to the three in his favour, Will you be kind enough to give evidence? and he pays the three against him their fees and leaves them alone; the other side does the same. It may not be three out of six, it may be three out of fifty. I was told in one case, where a person wanted a certain thing done, that they went to sixty-eight people before they found one. I was told that by the solicitor in the cause. That is an extreme case no doubt, but it may be done, and therefore I have always the greatest possible distrust of scientific evidence of this kind, not only because it is universally contradictory, and the mode of selection makes it necessarily contradictory, but because I know of the way in which it is obtained. I am sorry to say that the result is that the Court does not get that assistance from the experts which, if they were unbiased and fairly chosen, it would have a right to expect.”     

  1. [272]
    Clearly, the process described by Jessel MR would be seen as expert shopping and would not be tolerated today. The matters identified by his Honour, are precisely why reform has occurred in relation to expert evidence. Apart from other controls restricting expert evidence, a party today, for instance, is obliged to disclose expert reports to the other side, whether they are, for or against, the party, even though in former times adverse reports were not disclosable, but protected by legal professional privilege.
  1. [273]
    In the present case no sworn explanation was given by the respondent for the change from Mr Lait. It was easy enough for the respondent to have put in affidavit evidence explaining why the change was made. This knowledge lies in its possession and not that of the court or the other side. In the absence of a sworn (or any) explanation for the change, a court might be more inclined to find that it was simply expert shopping for a more favourable opinion. There is no magic in the number of experts required before one can be said to have expert shopped. A change from only one to one other might be enough depending on the circumstances.[93]
  1. [274]
    That said, in the present case, the new expert who was engaged (well prior and indeed some years before the hearing of the appeal) was not criticised by His Honour below in any way in relation to his professionalism or approach to giving evidence. The learned member enjoyed the advantage, which this court does not, of having heard and seen the new expert give evidence over an extensive period. There is no suggestion that the views expressed by the expert were not genuinely held by him or that he behaved in a partisan or inappropriate way.
  1. [275]
    Indeed, having heard the evidence of both Dr Evans (the new expert) and Mr Smith the resolution of the issue of the interconnectivity was resolved by his Honour in this way:

[42] When everything is pared back to its most basic features, some clarity begins to emerge. To begin with, it is without doubt that whenever a bore is drilled into an aquifer and water removed from that aquifer by way of pumping that there must necessarily be a groundwater impact as a result of that pumping. If that groundwater has any links to springs or underground streams or other measures by which such water emerges at the surface in either a spring, stream, lake, river or other feature, then it also follows that there must be some impact, even if only negligible, on that connection. Of course, if there is no connection (that is, the aquifer is retained in a below ground enclosure with no exit points apart from over-run when that aquifer is full) then the draw down of water by way of pumping through a bore must cause the level of the aquifer to fall, at least to some extent, until such time as that aquifer is replenished. I make these very simplistic observations, which are consistent with the evidence of both Dr Evans and Mr Smith, simply to show that consideration of this aspect of the appeal is not a simple black or white answer, but rather a question of degree. Put simply, will the impacts that naturally follow a bore and pump being placed into an aquifer as proposed by Messrs Gallo and Williams cause impacts which fall within parameters of those which are acceptable to the long term management of the water resources in Area B, or will the grant of either or both licence applications put Area B under an acceptable level of stress?

[43] Clearly, this issue is not without some doubt. The conclusions of both hydro-geological experts make that clear enough.

[44] Taking account of all of the evidence, I am satisfied that there is some inter-connection 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.

[45] Dr Evans relies upon increased water flows of both Leslie and Peterson Creeks to establish a connectivity between those creeks and the aquifer. Mr Smith accepts that there is an increased flow in both Peterson and Leslie Creeks when one considers data taken from four flow point measurement points along each creek. However, when Mr Smith draws down on the data for each segment of water flow for each creek, Mr Smith notes that the only points of increase with respect to Peterson Creek are between points 3 and 4, and for Leslie Creek between points 2 and 3.11 Mr Smith provides what is in my view compelling evidence that the reason for the increased flow at those two nominated points in both creek systems is as a consequence of discharge from certain springs into those creeks. The existence of the springs referred to by Mr Smith is clearly evidenced by the photographs as set out at page 184 of Exhibit 19. While this evidence of itself does not disprove interconnectivity, and indeed I am not aware of evidence that shows the origins of any of the springs as depicted in the photographs, nevertheless such evidence does show that for a large proportion of both creeks within the four points of the flow study area for each creek, there is no loss of water from those creeks into an underlying aquifer as the flows remain stable, nor is there any increase in the flows from a below ground water table that is not evident apart from the springs as shown in Exhibit 19.

[46] When questioned by Mr Sheridan as to issues relating to the volume of groundwater pumping and the reduction of evapotranspiration, Mr Smith made the following important observations:

“… if we didn’t have seasonality, in other words, it rained the entire time and we didn’t have period of increased evaporation, then much of what Dr Evans is saying I agree - I - I agree - I would agree with. In this situation, however, where we have a marked wet and dry season, we have significant rainfall in the wet season followed by less rainfall in the dry season - not nil, but still less - we have a seasonality. So, we talk about here the - the topping-up of the aquifers, in other words, when we’re pumping, when we’re creating these cones of depression we will - we may impact with certain surface waters or spring systems, or whatever else, but by the end of the wet season there’s sufficient water to top all those system up, so we reset the clock is the words we’ve used.”

[47] I note that, in accordance with s.10(2)(vi) of the Water Act, one of the purposes of the Water Act is to provide for sustainable management of water by “providing for the fair, orderly and efficient allocation of water to meet community needs”. This is a topic which I will examine further, for other reasons, later in this decision. However, for present purposes, there are a number of factors relevant to my consideration of the hydro-geological evidence which I take into account. In particular, I note that both the Gallo and Williams’ applications, as matters currently stand in light of the Moratorium Notice, will be the final water licences to be granted in Area B should my ultimate finding be that it is appropriate to grant both licences. Dr Evans is concerned about the cumulative impact of groundwater pumping. In this regard, he makes specific reference to s.51(2)(d) of the Barron Water Resource Plan. Dr Evans refers to this issue as ‘the tyranny of the small decision’. In the joint expert report, he describes such tyranny as 

“The case largely revolves around the concept of ‘the tyranny of the small decision’. While the individual licence applications in this case may be modest in the context of the water budget of the Barron River catchment, the water resource objectives of the Barron WRP will not be achieved if the concept of the ‘tyranny of the small decision’ is not accepted. That is, a ‘line in the sand’ has to be drawn at some point, otherwise the Plan will be gradually be eroded by incremental increases in additional groundwater extraction.”

[48] As the responsible Minister has effectively drawn “a line in the sand” by pronouncing a Moratorium on the grant of any future water licences in Area B, in my view Dr Evans’ concerns regarding the tyranny of the small decision are overstated.

[49] I further note the comments by Mr Sutherland in his report15 at pp 3-3 and 3.5

where he says:

“Furthermore, the information required by the Respondent of the Appellants is significantly more than all of the other applications that were determined by the Respondent, before and after the Appellant’s applications were lodged. This is particularly true given the requested allocations are proportionately small (0.08% for Gallo and 0.05% for Williams) in comparison with the total available water within this catchment. 5

Indeed, the amended Water Resource Plan (November 2009) indicates the outcomes of these last two allocations will have no adverse consequence to the plan. The discussion document states:

The final Plan provisions include a new Part 10 which ensures that the plan is able to accommodate any decisions or rulings relating to several licence application appeals that are currently subject to judicial proceedings.

Therefore, the Appellants’ desired allocations have already been accommodated by the Respondent and will not affect the plan’s implementation. In these circumstances I find the Respondent’s approach in these appeals, hard to reconcile.”

_________________

5 Estimated by the Federal Department of Environment, Water, Heritage and the Arts using a calibrated IQQM model to be 998,000ML per annum mean annual flow. ”

In my view, doubts that arise due to the scientific uncertainty as regards the hydro-geological evidence can be met by the institution of an appropriate groundwater and surface monitoring program as suggested by Mr Smith. [emphasis added]

  1. [276]
    Mr Smith had opined there was no, or very limited, interconnectivity whereas Dr Evans had opined for more substantial interconnectivity as follows:

Modelling of the two sites shows that the long term impact on the Leslie[94] and Peterson Creeks from the proposed Gallo and Williams pumping will be a reduction in stream flow of around 80% and 70% of the extracted volumes. This represents a stream flow reduction of 2.2 ML/day and 1.4 ML/day in the Leslie and Peterson Creeks, equivalent to 10% and 42% respectively of median daily October/November stream flow (as measured in stream gauges over their period of record).

  1. [277]
    It is fair to say though that the resolution adopted by his Honour was more favourable to the position contended for by the appellants in the sense that although his Honour rejected the evidence of Mr Smith that there was no interconnectivity, he was not able to make a finding as to the amount, and as a precaution, to get over this, imposed the condition. His Honour did not make a finding that there was no interconnectivity which was what Mr Lait had opined. Mr Lait’s report and responses to the questions asked of him by the respondent were in fact in evidence below: see Ex 12 and Ex 13. He was not called by any party to give oral evidence and there was no cross-examination of him.
  1. [278]
    Mr Lait had been notified in correspondence as the respondent’s expert but well prior to the making of directions requiring nomination of experts. There is no doubt the respondent walked away from him. There is no doubt that it led the appellants to believe that Mr Lait would be nominated. The change to Dr Evans occurred just prior to the directions of the court requiring the parties to nominate their experts and was not technically in breach of any court direction. I do not accept that it was improper for the respondent to have questioned Mr Lait about his opinion in the correspondence. Asking questions of a witness is germane to a proper preparation of a case. Mr Lait’s responses were properly disclosed by the respondent to the appellants and were indeed tendered by them in evidence as Ex 12.
  1. [279]
    That said, the submission that (based on Mr Lait’s views) agreement over no interconnectivity (contrary to what his Honour ultimately found) would have led to the hearing below being confined to a dispute about evidence of efficient use of the water in the crop proposal cannot be accepted. In his supplementary report which appears as Ex 13 at 559-569 of the appeal record at 568 the following appears in the conclusions:

“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.

Cooke et al, conclude that there is a strong linkage between groundwater and stream flow over the broader Atherton Tablelands meaning that groundwater extraction for irrigation during the dry season would be expected to directly impact on baseflow. In AGE (2007a and 2007b) it was assessed that the Atherton basalt aquifer within management area B is compartmentalised and that excessive extraction of groundwater for irrigation during the dry season could result in groundwater mining i.e. more groundwater removed from the aquifer than is capable of being replenished by groundwater flow. In the light of the conclusion that locally surface water and groundwater do not interchange, there is apparently no opportunity for stream flow to recharge the aquifer during the dry season. Therefore, while excessive irrigation using groundwater in management area B may not impact on surface water flows, it could certainly detract from the performance of the aquifer and may [sic] irrigation unsustainable as the dry season progresses.”  [emphasis added]

  1. [280]
    The issue raised by Mr Lait about re-charge was dealt with in the evidence below of Mr Smith and would have had to be dealt with by the appellants regardless of whether or not the respondent called Mr Lait as its expert. The costs associated with this were in no way related to any change in position by the respondent to nominate and call Dr Evans.
  1. [281]
    The interconnectivity of the water related not to whether there was sufficient water or not (it was conceded there was) but to environmental effects and whether these environmental effects dictated against the refusal of the water licence. Mr Lait’s evidence was that because there was no interconnectivity the dry season would have posed a problem. Clearly, the respondent did not accept there was no interconnectivity which raised environmental impacts on draw down of groundwater on water flow in the surrounding creek as an issue and engaged Dr Evans. It was submitted some regard can be had to the position of the respondent, in administering the Water Act 2000, that the respondent is not like a litigant with absolutely no knowledge of water and does have access to its own departmental expert advice. However, no sworn evidence was given of this and no attempt was made by the respondent to put in any sworn explanation as to the change in expert.  
  1. [282]
    It is important to bear in mind though, the particular parts of s 882(4) which are relevant to this issue. The discussion above is really directed at s 882(4)(g) and whether in having changed experts in the context of this case the respondent did not properly discharge its responsibilities in the appeal.
  1. [283]
    I have had the advantage of reading in draft the judgment of Henry J in the Williams matter which touches on the same issues as both this and the Williams appeal were run and heard as one below and the issues relating to Mr Lait, Dr Evans and Mr Smith, were largely common to both the Gallos and the Williams, although there were some physical differences because of the different locations and creeks. I adopt what his Honour has said at [49]-[62] and [68]-[70], as equally and directly applicable here to the Gallos, save that Mr Lait was contending for no interconnectivity.
  1. [284]
    However, in my view, it would be inappropriate to characterise the running of the issue of interconnectivity relating to the Gallos as academic on the basis of the evidence before this court and the way the case for costs below was run here by the appellants.
  1. [285]
    I refer back to my reasons above at [219]-[226]. For the reasons expressed above and at [219]-[226] it would be unfair or inappropriate to allow the appellants to rely on any argument for costs based on the condition being dispensed with in the Williams appeal as this was not raised in any of the written submissions or in a way orally which allowed the respondent a fair opportunity to appreciate the argument and lead evidence in relation to it. Also, there is just no evidence before this Court about the condition in the present case.
  1. [286]
    The point of departure between my judgment in this case and that of the other members of this Court comes down to the following:

(a) I think it unfair and inappropriate to have regard to the matter just  discussed;

(b) I think it appropriate to have regard to the findings on the evidence that was called.

  1. [287]
    A third factor (although this may or may not be a point of departure) is that I take the view that s 882(4) does not work on the basis that if one of the triggers is made out, then in the absence of any good reason otherwise, costs ought be awarded for the conduct referred to in that trigger. Rather, I take the view that s 882(4) provides a general discretion which is not fettered in any way, other than by reference to the terms of the statute itself, and its objects. The tension between these two approaches has been considered elsewhere. In that respect it reflects the difference between the majority judgments in Oshlack v Richmond River Council[95] and those of the minority. Whilst s 882(4) does contain some guidance by reason of the listed triggers, and was not an open-ended provision as in that case, I think this approach still holds true, giving due regard to the listed circumstances.  
  1. [288]
    The power to award costs must be exercised judicially. In Oshlack v Richmond River Council[96]  Gaudron and Gummow JJ explained:

[22] The terms of s 69(2) contain no positive indication of the considerations upon which the court is to determine by whom and to what extent costs are to be paid. The power conferred by the section is to be exercised judicially, that is to say not arbitrarily, capriciously or so as to frustrate the legislative intent. However, subject to such considerations, the discretion conferred is, to adapt the words of Dixon J, unconfined except in so far as “the subject matter and the scope and purpose” of the legislation may enable an appellate court to pronounce the reasons given by the primary judge to be “definitely extraneous to any objects the legislature could have had in view”.27

[31] The true issue here is not whether this was “public interest litigation”. Rather, to adapt the terms used by Dixon J in Water Conservation and Irrigation Commission (NSW) v Browning,48 to which reference was made earlier in these reasons, the question is whether the subject matter, the scope and purpose of s 69 are such as to enable the Court of Appeal to pronounce the reasons given by Stein J to be “definitely extraneous to any objects the legislature could have had in view” in enacting s 69.

  1. [289]
    Their Honour’s disapproved an approach similar to that taken in Latoudis v Casey[97] that:

[25] … the award of costs to a successful party in civil litigation is made not to punish the unsuccessful party but to compensate the successful party against the expense to which that party has been put by reason of the legal proceedings. In the present litigation, it followed that the motivation of the unsuccessful claimant, not being personal interest, gain or affectation, but the public interest, was an irrelevant factor.

  1. [290]
    Their Honours went on to say:

[35] In the administration of the discretion conferred by these provisions upon courts of general jurisdiction, practices or guidelines have developed. Observations by Brennan J in Norbis v Norbis are in point. His Honour said:57

It is one thing to say that principles may be expressed to guide the exercise of a discretion; it is another thing to say that the principles may harden into legal rules which would confine the discretion more narrowly than the parliament intended. The width of a statutory discretion is determined by the statute; it cannot be narrowed by a legal rule devised by the court to control its exercise.

It is in that sense that there is to be understood the earlier statement in this court as to the existence of “a general rule that a wholly successful defendant should receive his costs unless good reason is shown to the contrary”.58

  1. [291]
    The legislature’s purpose in enacting s 882(3), 882(4) Water Act 2000 was to limit the circumstances in which costs could be awarded in this type of litigation and to limit it to particular defined conduct, all of which, to one degree or another, could be described as involving some fault. The degree of that fault must be relevant to the exercise of the discretion. Section 882(4) leaves a discretion in the court. It does not provide that costs “must” be awarded, but only that they “may” be awarded. The section is not to be approached as if there were any general rule that costs ought be awarded if the conduct in the relevant trigger is shown unless a good reason is shown otherwise. The discretion is to be exercised judicially in the sense discussed above. There is a public interest to the administration of the Water Act 2000. This is not a case like ordinary litigation between private litigants. There is power for any person to make submissions about a water licence being granted and for such persons to become parties to an appeal[98]. The legislature has taken this into account in enacting ss 882(3) and 882(4) to limit costs in these types of matters.
  1. [292]
    I would not order the costs referable to the contest between Dr Evans and Mr Smith as, on the view I take, whilst there is power to do so, it would not be appropriate to do so.
  1. [293]
    To that end, as a matter of discretion, I would not do so for the following reasons:
  1. (a)
    the change occurred well prior to the hearing of the appeal below and very early in the preparation of the appeal. (The change was notified by the letter dated 23 June 2008 – little had occurred before then in the appellants’ preparation of the appeal for hearing and on no view could it be said that had it not been for the change the appellant would have been ready to proceed at that time. The appellants had not gathered the expert evidence from Mr Sutherland as to efficiency of their proposed water use and did not do so until much later. This had nothing to do with the later contest between Mr Smith and Dr Evans but had it not been obtained the appellants would have lost);
  1. (b)
    the member below made no adverse comments directed at the new witness being partisan or otherwise not behaving as an expert should;
  1. (c)
    the evidence of Mr Smith was not accepted in full and this was in part because of the evidence of Dr Evans i.e. there was a finding of interconnectivity but the extent of it could not be determined – the evidence was of use in that sense and was not academic or irrelevant in a practical sense to the result;
  1. (d)
    Mr Lait’s evidence opened up a different issue which the appellants had to engage Mr Smith to meet in any event and formed part of the contest between Dr Evans and Mr Smith;  
  1. (e)
    it has not been shown that the issue was academic or that the respondent knew or ought to have known at the time that calling the evidence from Dr Evans about interconnectivity and contesting these issues would have made no practical difference to the result or that the respondent was not acting genuinely;
  1. (f)
    I do not think a comparison ought be made in these circumstances between the position which might have occurred had the respondent continued with Mr Lait and what in fact occurred and visit the costs of that contest on the respondent. Mr Lait’s reports were tendered. There is nothing to suggest the respondent was not acting genuinely in its opposition to the appeal. Its conduct was in part vindicated because Dr Evans’ evidence did make a difference. Had that evidence been accepted in full it would have made more of a difference.  (By saying this I do not suggest that merely because a party acts genuinely that this of itself is ground for not visiting costs.  All relevant considerations need to be taken into account and the matter viewed in context); 
  1. (g)
    The respondent’s conduct needs to be seen in the context of the appeal and to this end the appellants’ conduct is also relevant;
  1. (h)
    The appellants had not acted expeditiously in the appeal. The appeal was instituted on 23 March 2007. The appellants did not put in sufficient evidence before the respondent or the reviewer to have enabled them to succeed without the respondent engaging in maladministration of the Water Act 2000 which by their arguments in the appeal, the appellants wanted to continue to apply to them. The letter of 26 February 2008 from Gilbert & Sutherland Pty Ltd is telling in this respect. The respondent rightly resisted this. When the appellants did appeal to the Land Court, no evidence about proposed efficient use was gathered and given to the respondent until the reports of Mr Sutherland were obtained much later. This was crucial to their succeeding in obtaining a water licence under the Act. At the time of the abandonment of Mr Lait, had the evidence rested there, the appellants would have lost. I do not accept that the abandonment of Mr Lait by the respondent was the cause of the delay in these circumstances where the appellants needed this evidence and did not obtain it until much later. I also do not accept that the respondent necessarily had to obtain the hydro-geological evidence at an earlier time. The appellants really had not raised any case until the reports from Mr Sutherland were later given to the respondent. The need to do so, if it ought not to have been apparent to them earlier, ought to have been apparent after the first instance decision in De Tournouer v Chief Executive, Department of Natural Resources and Water [2008] QLC 151 and indeed it was as is illustrated in the letter from the appellants’ solicitors dated 2 September 2008;
  1. (i)
    Whilst no sworn explanation has been given for the change, and it is open to draw the inference that the evidence of Mr Lait did not suit the case the respondent wanted to run, there is nothing to suggest that the respondent was not acting genuinely in bringing on that contest. It clearly took a different view. The fact that Dr Evans, after extensive cross-examination and challenge, was accepted in part and that there is no suggestion that it was capricious or belligerent or unreasonable to have held this different view vindicates, this to some extent. This case would be very different if there was something suggesting a lack of genuineness on the part of the respondent, or a belligerent attitude in the face of evidence all pointing the one way, or a substantial and  overwhelming body of opinion against the position put forth, and in those circumstances, I would have no hesitation in visiting the bulk of those costs on the respondent on an indemnity basis for breach of its responsibilities in the appeal and having directly caused the appellants to incur the costs of an expensive, unnecessary contest. Indeed, such conduct might well also be vexatious;
  1. (j)
    Both sides introduced substantial expert evidence into the appeal which had not been before the reviewer.
  1. [294]
    That said, some costs already incurred were wasted because of the change from Mr Lait to Dr Evans which in my view it is appropriate to award which occurred before the notification of the change to Dr Evans. These included (but are not limited to) the correspondence passing between the parties about Mr Lait and at least some expense in obtaining the letter from Mr Sutherland (the enclosure to Ex 15) at 747-748 of the appeal record.
  1. [295]
    As 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 costs already incurred. 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. [296]
    In my view these wasted costs can and ought be awarded under s 882(4)(g). I turn then to consider s 882(4)(f).
  1. [297]
    Whilst at the time these costs were wasted Mr Lait had not been nominated by the respondent as an expert under the Land Court’s directions, it seems to me that the respondent had led the appellants to believe that Mr Lait would be its expert and therefore would be locked in when the time came. The locking in of Dr Evans instead of Mr Lait under the directions occurred afterwards. This introduction of Dr Evans into the case did not cause these costs to be incurred (they had already been incurred) but it did cause them to be wasted. Is this lack of causation an impediment to them being awarded under s 882(4)(f)?
  1. [298]
    I accept that s 882(4)(f) strongly suggests that it is only those costs which are incurred as a result of the conduct there set out which is its subject. However, that conduct is also capable of producing wasted costs and such wasted costs have a direct causal relation to the conduct. The word “incurred” might also be thought to be wide enough to include “incurred” in the sense that those costs have become wasted, even though they were initially incurred before the conduct in s 882(4)(f), but came to be “incurred” as wasted costs later by reason of that conduct. I deal with this further below.
  1. [299]
    There are other features of s 882(4)(f) (which remained unexplored in argument) which could have affected its application here in any event. As to the scope of s 882(4)(f) i.e. that “a party has incurred costs because another party has introduced, or sought to introduce, new material”, the words “new material” in s 882(4)(f) affect the application of the provision.
  1. [300]
    Another point to be noticed about the scope of s 882(4)(f) is that it is the mere introduction or attempt to introduce this material and the incurring of costs as a result which triggers its operation. Unlike s 882(4)(g), there is no need to show any fault on the part of the party doing so or any breach of that party’s obligations in the appeal. That said, as is apparent from my comments above, in my view there is no general rule that merely because a party breached s 882(4)(f) and the other party has incurred costs as a result, that those costs ought be awarded in the absence of good reason not to do so. Rather, I am of the view that this remains a matter of discretion to be exercised judicially in the sense discussed above.
  1. [301]
    Further, whilst fault is not a pre-condition to its application, it may be relevant to the exercise of discretion once the power to award costs pursuant to it is triggered. For example, circumstances relevant to the matter may change necessitating the introduction of new material. The absence of fault may inform the discretion not to award costs in those circumstances.
  1. [302]
    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. In a practical sense, this would defeat the regime intended by ss 882(3) and 882(4) Water Act 2000 which is intended clearly to limit the circumstances in which costs are applied for and awarded.
  1. [303]
    If that were the true interpretation, then in the present case, not only did the respondent introduce new extensive material not before the reviewer, but so did the appellants. Indeed, without that new material the appellants had no hope of success on this appeal.
  1. [304]
    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. Again, this case involved much material on both sides that was not before the reviewer.
  1. [305]
    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.
  1. [306]
    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. 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. 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. a more limited interpretation is called for consistent with the intention of these provisions in the context of these types of appeal;
  4. this interpretation is consistent with this intention;
  5. this interpretation best promotes the purpose of these provisions[99];
  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. [307]
    The “jurisdictional[100]” requirements of s 882(4)(f) (dealt with at length above) were satisfied because the respondent did introduce new evidence being the evidence of Dr Evans. It was “new” to the appellants in the appeal who had been led to believe that evidence was to be given by Mr Lait. In my view, “new” in this context is wide enough to include this situation, even though it was not a breach of any directions of the Land Court. The appellants did incur further costs in engaging their own expert in Mr Smith to meet most of this new evidence from Dr Evans. Section 882(4)(f) would allow the awarding of those costs, if appropriate, on any of the above interpretations of the section. However, the width of the section does make a difference when it comes to exercising any discretion as to what is appropriate.
  1. [308]
    As to awarding the earlier wasted costs as a matter of power to do so, as discussed above, it seems to me that these costs, although not caused to be incurred by the conduct invoked by s 882(4)(f) might be argued to bear a sufficient rational connection (and indeed causative connection) to that conduct that they might be able to be awarded in this case because they were wasted by that conduct. Alternatively, the same object could be achieved by awarding the costs incurred by the introduction of Dr Evans, but to fix the quantum as not exceeding the wasted costs. That said, the latter course is an unattractive one which is in reality awarding the wasted costs, and the earlier course is not supported by the clear words of the statute. The legislature has chosen the circumstances in which costs might be awarded. Section 882(4)(f) talks only of costs incurred and not of costs wasted. This must inform the question as to what costs are appropriate.
  1. [309]
    That said, the way this case was argued did not raise arguments based on the scope or width of s 882(4)(f) and I leave open these issues.
  1. [310]
    Prima facie, the power is triggered in this case because the respondent did introduce “new material” regardless of which view one takes of the meaning of those words. Prima facie, this court could then award all the costs caused by the introduction of that new material. The real issue in this case comes down to an exercise of the discretion. Should the court adopt a view that prima facie all the costs caused ought be awarded in the absence of a good reason not to? I think not. In my view, s 882(4)(f) gives an unfettered discretion whether or not to award the costs, the only requirement being that it is appropriate to do so. The discretion must be exercised judicially.
  1. [311]
    In my view the court ought not do so, as a matter of discretion, for the reasons in paragraph [293] above. I note in particular, as regards s 882(4)(f) that notice was given that there would be new evidence occurred at a very early stage in the progress of the appeal in the Land Court. Significantly, both sides in this case obtained extensive expert evidence after the appeal was commenced, and which was not before the reviewer in circumstances where the material that was before the reviewer did not entitle the appellants to succeed and the new material obtained by them from Mr Sutherland was essential to their success.  Whether or not this was “new material” for the purposes of s 882(4)(f), it shows the context of the way both parties approached the matter.
  1. [312]
    Further, in this case, no injustice results from not making any award under s 882(4)(f) because there is power to award the wasted costs under s 882(4)(g) which are in my view appropriate to meet the justice of the case, even if these wasted costs cannot be awarded under s 882(4)(f).
  1. [313]
    In my view the appropriate order to meet the justice of this case is one which orders the respondent to pay the wasted costs of having walked away from Mr Lait and introduced Dr Evans into the case in breach of s 882(4)(g).
  1. [314]
    This conduct in relation to Mr Lait is also relied upon as a trigger to s 882(4)(b). In my view the respondent’s introduction of Dr Evans into the case in lieu of Mr Lait was not vexatious and did not render the respondent’s conduct of the appeal vexatious within the meaning of s 882(4)(b) even applying the most liberal and broad interpretation of that term. It is true that the appellants incurred a lot of costs as a result but that of itself does not render the conduct vexatious and certainly not in the context of the circumstances of this case. As I have made clear above I accept the earlier conduct of the respondent in dealing with the water licences can be taken into account as part of that context as well as any relevant and properly raised subsequent conduct. The subsequent conduct resulting in the variation of the judgment in Williams to remove the condition is not conduct to which this court can or ought have regard in the circumstances for the reasons given above.
  1. [315]
    The appellant argued the respondent “failed to disclose and properly brief experts”. The complaint was a double one – related firstly to disclosure of documents rather than experts.
  1. [316]
    The disclosure related to the appellants’ unfairness argument. The appellants sought the disclosure of the documents showing the previous over-allocations. This was not given. Instead they resorted to an FOI application.
  1. [317]
    The complaint about briefing the expert is that Dr Watts was not briefed to consider the unfairness argument (and not briefed with the documents relating to it). As to this latter complaint it is without substance. The unfairness argument was not a matter for expert evidence as such. The determination of the argument came down to a legal argument, once the factual basis for it was established.
  1. [318]
    However, in this case, the respondent’s behaviour in relation to the unfairness argument, in not making factual concessions was such that it did not discharge its responsibilities in the appeal below.
  1. [319]
    In the appellants’ written submissions the appellants complain in part:

“The failure of the respondent in the present case to make any timely admissions of his breaches of the Act when assessing the applications within Area B, including the appellants, is a critical point of distinction in terms of the gravity, in a comparative sense, of the unmeritorious conduct of the Chief Executive in the present appeal.”[101]

  1. [320]
    The appeal to the Land Court was governed by the Land Court Rules 2000. These, in turn, picked up the Uniform Civil Procedure Rules 1999 in those cases where the Land Court Rules did not provide for a matter and the UCPR did: r 4 Land Court Rules. This would in my view pick up r 5 UCPR which provides:

5 Philosophy—overriding obligations of parties and court

(1) The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.

(2) Accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.

(3) In a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way.

(4) The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court.

Example—

The court may dismiss a proceeding or impose a sanction as to costs, if, in breach of the implied undertaking, a plaintiff fails to proceed as required by these rules or an order of the court.

  1. [321]
    In addition the respondent also had the responsibilities of a model litigant, quite apart from this, which would include a duty to act expeditiously and not to put in dispute factual matters which are known by it to be true[102].
  1. [322]
    In this case it seems to me that the respondent ought to have conceded the factual basis of the unfairness argument (or the great bulk of it) in order to have saved the costs of the appellants preparing and running the appeal to establish these facts. It seems to me that the respondent was under an obligation to proceed expeditiously which in the context of r 5 encompassed acting to expeditiously determine the unfairness issue. It also seems to me that the respondent knew full well what the position was in relation to what it had done in the past but did not make any concessions about this prior to the hearing of the appeal which would have resulted in a saving of time in the appeal and a reduction of costs to the appellants in establishing the factual basis for their unfairness argument.
  1. [323]
    As an instance of this I note that the appellants had to tender at the hearing some three volumes of material relating to the other licences which they had obtained from their investigations (Ex 43) and also tendered the statement of Mr Gould Ex 23 who was not required by the respondent for cross-examination or examination in chief. The documents in Ex 43 were the subject of an extended cross-examination of the appellants’ expert witness, Mr Sutherland the questions for which show matters that could have been the subject of early, expeditious, factual concessions. In addition there was the evidence obtained from Mr Bell under cross-examination.
  1. [324]
    In my view, the respondent ought to have made concessions consistent with what the respondent had done and which was known to the respondent throughout which would have avoided this. This would have resulted in a saving of costs. Balanced against this is the fact that there would have been some costs associated with considering, and making, the concessions and the further significant fact that the respondent ultimately succeeded on this unfairness issue. That said, the determination of that issue was made more expensive than it ought to have been. The respondent had in its possession all of the material and the appellants did not.
  1. [325]
    The respondent submitted that in a case such as this whilst it could be deprived of its costs of the issue on which it succeeded[103] it could not be ordered to pay them. It is not the case that there is any general rule that costs cannot be ordered against a party who has been successful on an issue[104]. The matter is one of discretion having regard to the relevant circumstances of the case. That discretion must be exercised judicially. There must be some circumstance or factor which justifies making the order.  
  1. [326]
    For instance, in Commonwealth and the Central Wool Committee v Colonial Combing, Spinning and Weaving Co Ltd[105], the High Court made an order for costs of proving the facts even though the party who proved them had lost on the law. The Court deemed this appropriate in the circumstances of that case. Isaacs J at 466 reasoned:

“With regard to the costs, both parties have set up agreements which turn out to be invalid, and consequently the plaintiffs (the Commonwealth Government and the Central Wool Committee) fail on the law in the action, and the defendant (the Company) fails on the law in the cross-action. An enormous time was occupied by the trial of issues of fact – a trial which practically eventuated, so far as the facts are concerned, in the complete success of the Government. The circumstances are fully set out in the judgment on the facts referred to this Court. In my opinion the Company should pay the costs occasioned by the contest as to facts. The order as to costs, in my opinion, should be that the defendant Company be ordered to pay all costs of and occasioned by the issues of fact, including the whole costs of the trial, and except those costs, the parties should bear their own costs of the action and of the three arguments in the Full Court.[106]”

  1. [327]
    In my view the matters discussed above provide a basis for ordering part of the costs of establishing the factual basis for the unfairness issue against the respondent. As the respondent succeeded on the legal argument, and there would have been some costs associated with considering and making concessions in any event, I would allow the appellants 50% of these costs below.
  1. [328]
    One of the complaints made is that the respondent did not provide disclosure of documents going to the unfairness issue resulting in the appellants having to incur expense in bringing an application to obtain, and obtaining these documents under the Freedom of Information Act.  
  1. [329]
    The respondent claims it did not provide these documents because there were 25 odd boxes of them and that they were irrelevant in any event because the unfairness argument was unarguable.
  1. [330]
    The documents sought were directly relevant to the unfairness argument. They ought to have been disclosed as part of the respondent’s disclosure. However, it does not seem to me that failure to do so necessarily resulted in the appellants incurring costs that would not have been incurred had they been disclosed. Had they been disclosed it is correct the appellants would not have incurred the expense of obtaining them on FOI but they still would have incurred the expense of obtaining them on disclosure. It may be that the appellants would not have had to pay some costs of photocopying them[107] and may have had to pay a fee for obtaining them. They would still have had to incur the costs of perusing them, regardless of how they were obtained. Clearly timely concessions by the respondent would have adverted pouring through all these documents no matter how they were obtained.   
  1. [331]
    In any event, it seems to me that the approach I have taken above would adequately cover what additional costs there were (if any), with a discount for the fact that the appellants lost the unfairness argument on the law.
  1. [332]
    I am not persuaded by any of the other arguments put forward by the appellants of any other basis to award costs, or that it would be appropriate to do so in this case.
  1. [333]
    In my judgment the respondent ought be ordered to pay the appellants 50% of the appellants’ costs of establishing the factual basis for the unfairness issue against the respondent and the earlier costs wasted by changing from Mr Lait to Dr Evans (but not including any later costs in this regard).
  1. [334]
    The appellants have sought costs on an indemnity basis. There is undoubtedly power, in an appropriate case to award costs on this basis. Whilst the category of cases is not closed in which an award for indemnity costs can be made, there must be some feature justifying the awarding of such costs[108]. In my view, the circumstances are not such that an order for indemnity costs ought be made. Whilst I have found a breach of s 882(4)(f) (but made no award under same), and breaches of s 882(4)(g) this is tempered by the fact that the evidence of Dr Evans led to a finding of fact that there was some interconnectivity and the imposition of the monitoring condition and the respondent succeeded on the legal argument about unfairness as well as the other factors discussed in [293]. The costs will be on the standard basis.
  1. [335]
    As to the Calderbank offer (or more accurately what is being treated by both sides as being a Calderbank offer[109]) I do not think the evidence shows it was unreasonable for the respondent not to have accepted it. The relevant principles were neatly summarised by the Court of Appeal recently in J & D Rigging Pty Ltd v Agripower Australia Ltd[110]. It seems to me:

(a) the evidence does not demonstrate the respondent was in possession of sufficient material from the appellants at the time the offer was made in order to assess the likelihood of the court allowing the appeal in the amount of the offer;

  1. (b)
    to that end, the offer was made after the decision of the Land Court in De Tournouer v Chief Executive, Department of Natural Resources and Water [2008] QLC 15 which made it clear to the respondent the importance of being able to establish the proposed efficient use of water. That case was handed down in July 2008. The offer was made in September 2008 but the appellants did not provide any material to the respondent which went to this until they provided the crop water reports of Mr Sutherland in August 2009 (Ex 46) as revised in February 2010 (Appendix 4 to Ex 21). I reject the submission of the appellants that the offer remained open throughout and for months and years after it was made. The respondent did not act imprudently in not accepting the offer or making a further counter-offer. Its prospects of success at the time the offer was made and open for acceptance were strong given that at that time the appellants had no evidence of efficiency of proposed water use;
  1. (c)
    in any event, the appellants have not obtained a result which was equal to or better than the offer. The appellants seek to counter this by contending that the offer ought be adjusted to take into account the changes to the subordinate legislation over time which they say affected what deduction was to be made for their existing surface water licences. But even if such adjustments are made, and a notionally higher result used in considering the reasonableness of the offer at the time[111], the offer is still higher than the notionally adjusted result.
  1. [336]
    It was not argued in this case that there was any different test or lower threshold in considering a Calderbank offer when all that was sought were standard costs. As to this I note the decision of Beech J in McKay v Commissioner of Main Roads (No 7)[112]. That said, in the circumstances of this case, even if for an award of standard costs, the appellants need only have established that rejection of the offer showed the interests of justice justified an award, and did not have to show the respondent acted unreasonably, this would have had to be considered in the light of the requirements of s 882(4). In any event, I do not think the interests of justice justify an award of standard costs in the circumstances of this case based on the Calderbank offer.  

The Costs in the Land Appeal Court  

  1. [337]
    As to the costs in this Court, the appellants did not enjoy complete success on appeal in that whilst they succeeded in overturning the decision below and obtaining a water licence, this was for a much lesser amount than the amount contended for by them in this Court.
  1. [338]
    It is to be noted that s 34 Land Court Act 2000 (picked up by s 72) does not provide that costs follow the event but that costs are to be borne by each party in the event the court makes no order as to costs. By s 34(1) costs are in the discretion of the court as the court may award them “as it considers appropriate”.
  1. [339]
    This provision has been considered by the Land Appeal Court previously on many occasions. Recently in Mentech Resources Pty Ltd v MCG Resources Pty Ltd (in liq) (No 2)[113] and YMCA v Chief Executive, Department of Transport and Main Roads (No 2)[114] the Land Appeal Court adopted the position referred to in Mentech, [4]:

  [4] Hence the Land Appeal Court may order costs “as it considers appropriate”. The discretion to award costs is unfettered. However, the rule often followed, and the rule incorporated in r 689 of the Uniform Civil Procedure Rules 1999, is that costs follow the event. That rule, while it does not govern the exercise of the discretion here, nonetheless informs it, as there is justice in that approach. It protects those put to unnecessary and substantial expense at the behest of others.” (footnotes omitted) 

  1. [340]
    In Mio Art Pty Ltd v Brisbane City Council (No 3)[115], the Land Appeal Court, after citing these decisions, went on to say:

“[6] The Land Appeal Court in decisions of YMCA v Chief Executive, Department of Transport and Main Roads (No 2) and Ostroco v Department of Main Roads (No 2)[2012] QLAC 7 applied the reasoning in Mentech (No 2).

….

[11] The respondent relies on the decision of Toohey J in Hughes v Western Australian Cricket Association Inc (1986) ATPR 40-748 which was cited with approval by the Court of Appeal in Sochorova v Commonwealth of Australia [2012] QCA 152. Toohey J noted the discretion to award costs (at 48-136):

“… must of course be exercised judicially. There were decisions, both of Australian and English courts, that throw light on the way in which the discretion is to be exercised. I shall not refer to those decisions in any detail; I shall simply set out in a summary way what I understand to be their effect.

  1. Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order (Ritter v Godfrey [1929] 2 KB 47)
  2. Where a litigant has succeeded only upon a portion of his claim the circumstances may make it reasonable that he bear the expenses of litigating that portion upon which he has failed (Fordter v Farquhar [1893] QB 564);
  3. A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party’s costs of them. In this sense, ‘issue’ does not mean a precise issue in the technical pleading sense but any disputed question of fact or law. (Cretazzo v Lombardi (1975) 13 SASR 4 at p 12).”  

…

[23] In reaching a decision in this matter, the court is mindful of the fact that the specific provisions of s 34(1) of the Act apply rather than the UCPR. It is clearly open to this court to reach a decision on costs on the principles as outlined by Toohey J in Hughes. However, this court is aware of the words of caution expressed by Toohey J:

“10. There is no difficulty in stating the principles; their application to the facts of a particular case is not always easy. Also it is necessary to keep in mind the caveat by Jacobs J in Cretazzo v Lombardi at 16. His Honour sounded what he described as ‘a note of cautious disapproval’ of application to apportion costs according to the success or failure of one party or the other on the various issues of fact or law which arise in the course of a trial. His Honour commented:

‘But trials occur daily in which the party, who in the end is wholly or substantially successful, nevertheless fails along the way on particular issues of fact or law. The ultimate ends of justice may not be served if a party is dissuaded by the risk of costs from canvassing all issues, however doubtful, which might be material to the decision of the case. There are, of course, many factors affecting the exercise of the discretion as to costs in each case, including, in particular, the severability of the issues, and no two cases are alike. I wish merely to lend no encouragement to any suggestion that a party against whom the judgment goes ought nevertheless to anticipate a favourable exercise of the judicial discretion as to costs in respect of issues upon which he may have succeeded, based merely on is success in those particular issues.

[24] It is also appropriate to consider Toohey J’s final reasoning in Hughes

“15 … I approach the matter on the basis that the applicant succeeded substantially in what he set out to achieve through his application. He failed on some issues in circumstances where, not only should he not have the costs of those issues, but there should be some compensation to the respondents for the time taken in meeting those issues both prior to and at the hearing.

 16. In my view justice would be served by awarding the applicant 75% of his costs….”    

  1. [341]
    The Land Appeal Court hears many types of different appeals to it. Section 34(1) (picked up by s 72) is a general provision unlike ss 882(3) and 882(4) Water Act 2000 and applies in the cases of many other types of appeals. The legislature has not chosen to enact a provision like ss 882(3) and s 882(4) to govern the costs in this court in appeals from the Land Court dealing with the Water Act 2000. To that end the earlier discussion in this judgment about the approach to be adopted to the costs below has no application here. 
  1. [342]
    That said, I note the approach taken recently by this Court in Ostroco v Department of Transport and Main Roads (No 3)[116] applying Moreton Bay Regional Council v Mekpine Pty Ltd & Anor (No 2)[117].

"It has been held on many occasions that the discretion to award costs granted by s 34 is unfettered but that the discretion is to be exercised judicially, that is for reasons that may be explained and substantiated.  However it has also been recognised by the Land Appeal Court that although the discretion to award costs is unfettered, the rule that costs follow the event may inform the exercise of the discretion granted under s 34(1), 'as there is justice in that approach.  It protects those put to unnecessary and substantial expense at the behest of others'." [footnotes omitted]

  1. [343]
    What is to be understood from Oshlack v Richmond River Council[118] is that what informs the discretion depends on the scope, purpose and object of the relevant statutory provisions. The same considerations which apply to costs in relation to the appeal below do not apply here. Section 34 is much wider than ss 882(3) and (4) in its terms.  It does not identify or limit the discretion to any particular type of conduct.  The appeal to this court will have been preceded by a decision below. That said, in this case, the decision below was erroneous and required the appellants to come to this Court to obtain the relief they did. 
  1. [344]
    The respondent submitted that if the costs of the appeal in this Court were not governed by s 882 Water Act 2000, which they are not, then an appropriate award would be to order the respondent to pay 70% of the costs of the appellants’ costs of the appeal.
  1. [345]
    In my view 75% represents a fair apportionment in the circumstances.
  1. [346]
    In my view it would not be appropriate in this case to award all of the costs of the appeal in favour of the appellants.
  1. [347]
    Whilst in some cases it may be appropriate to allow a party the full costs, notwithstanding the party was not completely successful, and that care ought be taken not to deprive such a party of costs simply because some arguments failed so as not to discourage parties from canvassing all issues which might be material to the proper determination of the case, the issue as to quantum was a discrete issue in the appeal, and an important one. I agree that it is not to be tested simply by reference to the difference in quantum. In some cases this might involve very little time and costs for the appellant who had to come here anyway. That said, in this case, it did involve additional time, effort and costs in considering the evidence on that issue, the applicable law in relation to same, and the alternative findings below. The amount of water allocated as a scarce resource was an important and discrete issue in itself productive of additional time and costs.
  1. [348]
    As to the costs of the application to adduce further evidence, the appellants did not succeed on the Calderbank argument. The costs of that application were reserved. The respondent ought not be liable for these costs. I would make no order as to the costs of that application.
  1. [349]
    As to the rest of the costs of the appeal to this Court I would order the respondent pay the appellants 75% of their costs.
  1. [350]
    The appellants do not identify any conduct by the respondent in the conduct of the appeal in the Land Appeal Court which would justify an award of any of those costs on an indemnity basis. Accordingly, these costs ought be on the standard basis.

Disposition

  1. [351]
    Accordingly, the orders I propose are:
  1. 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. 
  1. 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.
  1. The respondent pay 75% of the appellants’ costs of the appeal to this Court to be assessed on the standard basis, save for the costs of the application to adduce further evidence as to which there is no order as to costs.
  1. Allow the application filed 27 February 2014 to adduce further evidence to the extent specified in [105] (being documents 6 to 8 – the documents relied on as showing the appellants’ Calderbank offer). 

ORDERS

  1. The respondent pay 85% of the appellants' costs of the appeal to the Land Appeal Court, to be assessed on the standard basis.
  1. The respondent pay 70% of the appellants' costs of the appeal to the Land Court from and including 23 June 2008 on the indemnity basis. 

HENRY J

CAC MacDONALD

PRESIDENT OF THE LAND COURT

MD EVANS

MEMBER OF THE LAND COURT

Footnotes

[1]  [2013] QLAC 6.

[2]  (2013) 34 QLCR 222.

[3]  (1986) ATRP 40-748.

[4]  (1975) 13 SASR 4, 16.

[5] Acts Interpretation Act 1954 (Qld) s 38.

[6]  Vol 6 p1357.

[7]  (2008) 29 QLCR 176. 

[8]  [2013] QLC 53.

[9]  [2014] QLAC 7.

[10] Edwards & Ors v Santos Ltd & Ors (2011) 242 CLR 421, 425, 444;  Cf Kirk v Industrial Court (NSW) (2010) 239 CLR 531.

[11] Land Court Rules 2000 (Qld) r 3(3).

[12]  [2009] ACTCA 7.

[13]  T1-4 L15.

[14]  It was filed after the hearing and determination of the main issue in the appeal ((2013) 34 QLCR 371) but before the hearing of the argument as to costs.

[15]  [2014] QLAC 10.

[16]  Section 55(b) of the Land Court Act 2000 provides that

"55  Land Appeal Court to be guided by equity and good conscience

In the exercise of its jurisdiction, the Land Appeal Court -

  1. (a)
     is not bound by the rules of evidence and may inform itself in the way it considers appropriate;  and
  1. (b)
     must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms or the practice of other courts."

[17]  (1993) 116 ALR 253 at 263, 264.

[18]  T 1-48 ll 11-37 (29 April 2014).

[19]  Section 38(4), Acts Interpretation Act 1954. 

[20]  Stewart v ATCO Controls Pty Ltd (2014) 311 ALR 351 at [7].

[21]  Section 55(a) Land Court Act 2000. 

[22]  [2014] QLAC 10.

[23]  Save for any concessions on which the Land Appeal Court finds it appropriate to act: Gallo v Chief Executive, Department of Environment and Resource Management (2013) 34 QLCR 371, [283]-[289]. Here the respondent was prepared to make concessions in relation to three of the documents which are essentially relied on as the appellants’ Calberbank offer. It would be appropriate to accept these concessions and act on them in this case.

[24]  This is to be contrasted with the position in relation to the appeal in Williams. That case was quite different. There was no doubt that s 56 Land Court Act 2000 applied to the documents sought to be adduced because in Williams the appeal was solely against a refusal to order costs below. In other words, the appeal itself (its substance) concerned the costs below. This Court ruled the documents were inadmissible in Williams because the pre-conditions in s 56 were not met.  Here, the costs below are consequential to the substance of the appeal before this court.

[25]  The respondent took no issue that this did not amount to a Calderbank offer. I note the approach taken recently by McMurdo J in Linc Energy Ltd v Chief Executive Administering the Environment Protection Act 1994 [2014] QSC 172, [41] in the context of an application for declarations. 

[26]  It is now, and has been for some considerable time, settled law that costs are a creature of statute (Amos v Monsour Legal Costs Pty Ltd [2008] 1 Qd R 304, [34]; Robinson v Helicopter Company (No 2) [2014] QSC 213, [13]), although Quick on Costs notes that the House of Lords had held that it had an inherent jurisdiction to award costs of appeals to it as the ultimate court of appeal even though there was no statute permitting this (Guardians of West Ham Union v Churchwards etc of St Matthew, Bethnal Green [1896] AC 477), and that the Court of Chancery also did not rely on statute in making awards of costs in equity, although such costs were discretionary and not as of right (Andrew v Barnes (1888) 39 Ch D 133, 138 citing inter alia Lord Harwicke LC in Corporation of Burford v Lenthall (1732) 2 Atk 551; 26 ER 731 although an earlier statute of 1393 17 Rich II c 6 did exist empowering the Court of Chancery to give damages if a plaintiff’s allegations were found not to be true and the damages were held to encompass costs. This statutory power was confirmed in 1436 by 15 Henry VI c 4). The common law courts relied exclusively on statute to award costs and there was no discretion. Following the Judicature Act reforms in England and here, the position reached (perhaps with the exception of the House of Lords) was that costs were a creature of statute but were discretionary and not as of right: Knight v Special Assts Ltd (1992) 174 CLR 178 and cases there cited as well as Oshlack v Richmond River Council (1998) 193 CLR 72 esp at [33]-[35]. In earlier times there seemed to be power to sue for costs in a separate action as damages where no statute permitted them being awarded. There is still scope in some instances to sue for costs as damages as is illustrated by the Court of Appeal’s decision in Hawkins v Permarig Pty Ltd [2004] 2 Qd R 388.

[27]  There are previous decisions of this Court where a similar problem has arisen but none where the Land Appeal Court has considered the matter and held it does or does not have jurisdiction: LGM Enterprises Pty Ltd v Brisbane City Council (2008) 29 QLCR 176.  A question of jurisdiction is an important matter. Parties cannot give a court jurisdiction which it does not have by consent unless a specific provision of a statute allows them to do so (in which case the statute itself is the source of the jurisdiction): Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150.  A court ought not make orders simply because the parties consent where jurisdictional issues arise as to whether the court has power to do so. Even in the absence of the parties raising a jurisdictional issue, the court is bound to determine for itself whether it has jurisdiction or not: Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Proprietary Co Ltd (1911) 12 CLR 398, 415; Khatri v Price (1999) 95 FCR 287, [14]; PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission (2012) 247 CLR 240, [16].

[28]  (1998) 197 CLR 172, [111]

[29]  This can include implied powers: Bonan v Hadgkiss (2006) 160 FCR 10, 26 [55]. 

[30]  (1998) 197 CLR 172, [111], [113].

[31]  (2011) 242 CLR 573, [49]-[62].

[32]  Kable v New South Wales (2013) 87 ALJR 737, [54].

[33]  Section 242 Industrial Relations Act 1999

[34]  Section 381 Mental Health Act 2000.

[35]  The Medical Assessment Tribunal created under s 33 Medical Act 1939 (now repealed) was also a superior court but it has since ceased to exist: see Re Cooke [1997] 1 Qd R 15. If any statutory rationale can be discerned for creating these courts outside the Supreme Court as superior courts, it seems to be that they each comprised a Supreme Court judge.

[36]  The Land Court is established by s 4 Land Court Act 2000.  Although s 4(1) refers to it as a specialised judicial tribunal, it is established in s 4(2) as a court of record.  Some of its jurisdiction in some cases might be thought to be non-judicial – see Hancock Coal Pty Ltd v Kelly and Department of Environment and Heritage Protection (No 4) [2014] QLC 14, and see generally Owen v Menzies [2013] 2 Qd R 327 in relation to the status of QCAT. 

[37]  See generally the judgment of Morrison JA in R v Stanley [2014] QCA 116, [51]-[53]

[38]  Medical Board (SA) v N, JRP (2006) 93 SASR 546, 553-554 [21]-[23] and cases there cited noting the concept of inherent jurisdiction is confined to superior courts, although an inferior court possesses such jurisdiction as may be implied by way of necessary implication. See also Bonan v Hadgkiss (2006) 160 FCR 10, 26 [55]. 

[39]  [2014] QCA 165.

[40]  [2005] 2 Qd R 394, 401-402 [23].

[41]  (2013) 87 ALJR 737.

[42]  (2013) 87 ALJR 737.

[43]  This is to be contrasted with the English rule that the prerogative writs do not lie against superior courts, which clearly has no relevance to the Australian court system where the Constitution itself allows for certiorari to be brought against a superior federal court created by the Commonwealth such as the Federal Court.

[44]  (1992) 174 CLR 178, 205.

[45]  This was quoted with approval by Gleeson CJ, Gummow, Kirby, Hayne and Crennan JJ in Mansfield v Director of Public Prosecutions for Western Australia (2006) 226 CLR 486, 492 [10].

[46]  (1998) 193 CLR 72, 81 [21].

[47]  (2011) 242 CLR 573, [48].

[48]  (2001) 204 CLR 559, [64]-[65].

[49]  [2014] 1 Qd R 397.

[50]  Hope v Brisbane City Council [2013] QCA 198. 

[51]  Consistently with this the words “appeal from a decision of the Land Court” are used also in ss 58(1) and 59(1) Land Court Act 2000. Curiously though, and perhaps somewhat inconsistently, s 57(b) refers to power to, inter alia, “substitute another order or decision for the order or decision appealed against”.

[52]  Appeal Record – Notice of Appeal

[53]  See in a different context the reasoning of McMurdo P (diss) in Hawkins v Permarig Pty Ltd [2004] 2 Qd R 388, 394 [14] where her Honour held in relation to a similar provision to s 882 (s 4.1.23 of the Integrated Planning Act 1997) that:

“The application of s. 4.1.23 to this case is effectively an order of the court that there be no order as to costs, not simply that there has been no order as to costs.”  

The context of that case was very different and the reasons of majority approach the matter differently, conducive to that context.    

[54]  (2010) 275 ALR 646, [45]-[46].

[55]  [2008] QCA 170.

[56]  [2009] ACTCA 15.

[57]  Section 20 Property (Relationship) Act 1984 (NSW) then still applicable in the ACT.

[58]  [2009] ACTCA 7.

[59]  [2009] ACTCA 15

[60]  [2005] 2 Qd R 394.

[61]  (1992) 174 CLR 178, 205.

[62]  (1998) 193 CLR 72, 81 [21].

[63]  [2014] QCA 165, [34]-[38].

[64]       [2011] ACTSC 133.

[65]  [2009] ACTCA 15.

[66]  A provision intended to limit costs applications to only cases where a party can demonstrate one or more of the listed circumstances in s 882(4).

[67]  In that case s 4.1.23 Integrated Planning Act 1997 but see now s 457 Sustainable Planning Act 2009 which differs significantly from s 882. 

[68]  [2008] QCA 170.

[69]  [2010] VSCA 109.

[70]  Senior Counsel for the respondent submitted orally that the timing for any application under s 882(4) would be governed by the Acts Interpretation Act 1954. Section 38(4) is the relevant provision but it is subject to a contrary intention (s 4) and provides:

If no time is provided or allowed for doing anything, the thing is to be done as soon as possible, and as often as the relevant occasion happens. 

 An application brought months (or even weeks) afterwards would not be brought “as soon as possible”. These words contemplate an application being brought as soon as it can be after time to consider the reasons. Indeed, s 882(4) does not refer to any application as such and s 38(4) might be thought to apply to the court’s determination whether to order costs or not. I am by no means convinced s 38(4) applies: see s 4 Acts Interpretation Act 1954. In my view, it is displaced because whilst costs ought be determined expeditiously, there is really no reason to think they must be determined “as soon as possible” failing which they cannot be awarded. The exigencies of practice, the exigencies of the Court’s business and demands upon its members from this and other matters, make it unlikely that such a burden is imposed. Rather, I am of the view that such an application ought be brought promptly and within a reasonable time after sufficient time to consider the primary decision. As a matter of practice in giving its primary decision the Land Court ought specify a time for any submissions on costs.    

[71]  (1997) 130 LGERA 139, 141.

[72]  As the legislature has set the time for considering the reasons for an appeal and commencing an appeal at 42 days, it seems to me that prima facie this is a reasonable time also for considering and filing any application for costs under s 882(4). I do not think that the mere commencement of an appeal deprives the Land Court of jurisdiction to make an order under s 882(4). An appeal could be commenced relatively quickly. Commencement of an ultimately unsuccessful appeal say one day after the reasons by a particularly efficient appellant, could not, of itself, preclude the Land Court from jurisdiction to make an order for costs below. It is difficult to see though that the time for bringing such an application, at least in the absence of any special feature, could be any later than the expiry of the appeal period, although the order need not be made within that time. There is a public interest in the finality of litigation. 

[73]  Re Scowby [1897] 1 Ch 741, 754; White Industries (Qld) Pty Ltd v Flower & Hart (1993) 117 ALR 253, 263-265.

[74]  In this respect, see LGM Enterprises Pty Ltd v Brisbane City Council [2008] QLAC 231. As to the consent order made in that case I refer back to my comments at footnote 27. Parties cannot give jurisdiction by consent where it does not exist in the absence of any statutory provision enabling consent to be given, in which case the statute then provides the basis of the jurisdiction: cf s 4A Magistrates Courts Act 1921; s 72 District Court of Queensland Act 1967 and see Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150.

[75]  (2013) 34 QLCR 371, [283]-[289].

[76]  (1992) 174 CLR 178, 205.

[77]  (1948) 77 CLR 490.

[78]  (2005) 26 QLCR 87, [39]-[43].

[79]  See generally Brisbane City Council v Mio Art Pty Ltd [2012] 2 Qd R 1, [93]-[94].

[80]  See at para 23 of the respondent’s written submissions on costs filed 24 February 2014

[81]  [2012] QLC 24.

[82]  See at Transcript Williams appeal 6 March 2014, pp. T1-37 lines 27-45 to T1-40 lines 1-18. 

[83]  That said, due regard must be paid to the particular provision of s 882(4) under which the costs are being sought in determining the appropriate connection. As will be seen later, for instance I do not think that s 882(4)(f) which speaks of costs being incurred by a party if new material is introduced or sought to be introduced by another party extends to costs wasted by such conduct even though there is a rational relation between the two, and even though the conduct causes the wasting of these costs. Effect must be given to the wording of the provision as that is the scope of what the legislature has intended.

[84]  That said, s 882(4)(f) might be one of those cases where this does not hold true, and where the matter can only be one of power. The costs wasted by the conduct in s 882(4)(f) are in my view not recoverable as a matter of power, because they were not incurred by that conduct.

[85]  [2003] 2 Qd R 271.

[86]  [2003] 2 Qd R 271.

[87]  (2005) 26 QLCR 87, [62]-[63].

[88]  (2005) 26 QLCR 87, [62]-[63].

[89]  [2011] 1 Qd R 200.

[90]  A wide-ranging survey of various approaches adopted in different countries, including England, Australia, New Zealand and the Republic of Ireland is to be found in the Consultation Paper of the Republic of Ireland Law Reform Commission Expert Evidence first published December 2008. See also the discussion by Rackemann DCJ Environmental Dispute Resolution –Lessons from the States [2013] QldJSchol 21 at [59]-[74] in relation to the position in the Planning and Environment Court, although I do not adopt his Honour’s criticism in the latter part of his paper in relation to the Land Court.  

[91]  See Pt 5 Land Court Rules 2000 inserted by SL 280 of 2013 on 13 December 2013. 

[92]  (1876) 6 Ch 415 (n) 416.

[93]  Had this matter been litigated in the Supreme Court, for instance, the present problem may well have been addressed at an earlier time on affidavit evidence. A party seeking to introduce expert evidence where the opinion of a jointly appointed single expert had given a report would need to obtain leave on application to do so and would need to explain at the time of that application cogent reasons for doing so: Conias Hotels Pty Ltd v Murphy [2012] QSC 297, and r 429N(3) UCPR. The approach taken by Applegarth J in that case was more restrictive than that taken in New South Wales or in England by Lord Wolff (responsible for the Wolff expert evidence reforms): cf Daniels v Walker [2000] 1 WLR 1382; Cosgrove v Pattison [2000] 1 All ER (D) 2007 (Neuberger J as his Honour then was); Tomko  Tomko [2007] NSWSC 1486, [9]; Wu v Statewide Developments [2009] NSWSC 587, [17]. That said, the Land Court did not appoint single joint experts here. 

[94]  Peterson Creek related to the Williams and not to these appellants. Leslie Creek related to these appellants.

[95]  (1998) 193 CLR 72. 

[96]  (1998) 193 CLR 72, [22].

[97]  (1990) 170 CLR 534.

[98]  See Gallo v Chief Executive, Department of Environment and Resource Management (2013) 34 QLCR 371, [125]-[126] although this case is not concerned with an objector’s costs.

[99]  Whilst this might be criticised as reading down powers by limitations not contained in them, I do not think so. The provisions must be considered in context where the hearing before the Land Court is a hearing de novo unaffected by the reviewer’s decision and where expert evidence will need to be placed in a form acceptable to the Land Court. Cf the approach taken in Lacey v Attorney-General (Qld) (2011) 242 CLR 573 and Metrostar Pty Ltd v Gold Coast City Council [2007] 2 Qd R 45

[100]  In the sense of pre-conditions to the exercise of the power in s 882(4)(f)

[101]  Paragraph 58 of the Appellants’ Outline filed 7 February 2014.

[102]  Kenny v South Australia (1987) 46 SASR 268, 273; State of Queensland v Allen [2012] 2 Qd R 148, [81].

[103]  Which will be the practical position if s 882(3) applies or no order is made under s 882(4).

[104]  An example is where a party is seeking an order for an extension of time or to excuse an indulgence. Even though completely successful, costs might be ordered against that party. Similarly, where a party succeeds generally, even though the defendant may have succeeded on some arguments, the defendant might, in appropriate circumstances, be ordered to pay the whole of the costs. That is not to say, that in an appropriate case, the discretion might not also be exercised to order the party to recover only part of its costs having regard to the issues on which it succeeded balanced against those on which it failed. Further, where a notice to admit facts is served but the facts are not admitted, if those facts are  established at the hearing, the costs of proving the facts ultimately is to be paid by the respondent to the notice even though that respondent ultimately succeeds in the litigation unless the court otherwise orders: see r 189(4) UCPR.    

[105]  (1922) 31 CLR 421.

[106]  The costs order ultimately made was to this effect – see at (1922) 31 CLR 421, 478. 

[107]  Belela Pty Ltd v Menzies Excavation Pty Ltd [2005] 2 Qd R 230.

[108]  Colgate-Palmolive Co v Cussons (1993) 46 FCR 225. 

[109]  No point is taken by the respondent about the form of the ‘offer’ and I proceed on the basis accepted by both sides. That said, if it were not for this there would be a real issue about whether the document could be so described.

[110]       [2014] QCA 23, [5]-[7].

[111]  See the calculation at para 119 of the appellants’ written outline filed 7 February 2014. The calculation at 119(c) is wrong. The existing surface water licences were at 10 ML/ha. Even if the notional lower figure of 6.6 MlLha is used (calculated at the time of the offer under s 45(2)(ii) of the Barron Water Resources Plan) this gives a deduction in 19(c) of 646.8 and an overall notional figure of 592.22, not 778.42. 

[112]       (2011) 185 LGERA 118, [106]-[130].

[113]  (2012) 33 QLCR 43.

[114]  (2012) 33 QLCR 260.

[115]  (2013) 34 QLCR 222.

[116]  [2014] QLAC 7.

[117]  [2014] QLAC 5 at [12].

[118]  (1998) 193 CLR 72.

Close

Editorial Notes

  • Published Case Name:

    Gallo v Department of Environment and Resource Management (No. 2)

  • Shortened Case Name:

    Gallo v Department of Environment and Resource Management (No. 2)

  • MNC:

    [2014] QLAC 11

  • 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.

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Appellants v Council of The Law Society [2011] ACTSC 133
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Bonan v Hadgkiss (2006) 160 FCR 10
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DMW v CGW (1982) 151 CLR 491
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Donald Crone & Associates v Bathurst City Council (1997) 130 LGERA 139
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Edwards v Santos Ltd (2011) 242 CLR 421
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Khatri v Price (1999) 95 FCR 287
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Latoudis v Casey (1990) 170 CLR 534
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Peacock v Bell (1667) 1 Wms Saund 69
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1

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