Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QLAC
  3. 2015
  4. Williams v Chief Executive, Department of Environment and Resource Management (No 2) - [2015] QLAC 1

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Williams v Chief Executive, Department of Environment and Resource Management (No 2)[2015] QLAC 1

Williams v Chief Executive, Department of Environment and Resource Management (No 2)[2015] QLAC 1

LAND APPEAL COURT OF QUEENSLAND

CITATION:

Williams v Department of Environment & Resource Management  (No 2) [2015] QLAC 1

PARTIES:

RICHARD FRED WILLIAMS and MARY OLIVE WILLIAMS

(appellants)

v.

CHIEF EXECUTIVE, DEPARTMENT OF ENVIRONMENT AND RESOURCE MANAGEMENT

(respondent)

FILE NO:

Appeal No. LAC009-13

Land Court No. WAA022-07

DIVISION:

Land Appeal Court of Queensland

PROCEEDING:

Costs of appeal

ORIGINATING COURT:

Land Court of Queensland

DELIVERED ON:

20 February 2015

DELIVERED AT:

Cairns

DATE OF HEARING:

Written submissions 7 January 2015; 12 January 2015; 22 January 2015

THE COURT

Henry J

CAC MacDonald, President of the Land Court 

MD Evans, Member of the Land Court

ORDER:

  1. The appellants pay the respondent’s costs of the application to adduce further evidence to be assessed on the standard basis.
  1. The respondent pay the appellants’ costs of the appeal to this court to be assessed on the standard basis, excluding the costs in Order 1 and excluding any costs of the notice of appeal to this court.

CATCHWORDS:

COSTS – appellants successful on appeal to the Land Appeal Court against decision on costs – but where not all of the appellants’ arguments on costs succeeded – whether apportionment of costs is appropriate for issues on which the appellant failed – exercise of discretion – costs awarded on a standard basis except for the costs of an unsuccessful application to adduce further evidence and costs of the notice of appeal in circumstances where the notice did not contain a succinct statement of the appellants’ ground of appeal

PROCEDURE – COSTS – enforcement of costs orders made by the Land Appeal Court – s 7B of the Land Court Act 2000 not applicable to the Land Appeal Court

Justice and Other Legislation Amendment Act 2013

Land Court Act 2000

Land Court Rules 2000

Uniform Civil Procedure Rules 1999

Water Act 2000

Dennehy v Reasonable Endeavours Pty Ltd (2003) 130 FCR 494

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

House v The King (1936) 55 CLR 499

Hughes v Western Australian Cricket Association Inc [1986] ATPR 40-478

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

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

Oshlack v Richmond River Council (1998) 193 CLR 72

Pricom Pty Ltd v Sgarioto - unreported, Supreme Court of Victoria, (No 12926/1990), 24 April 1995

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

  1. [1]
    Henry J:  I have read and agree with the reasons of Member Evans and the orders he proposes.
  1. [2]
    MacDonald P:  I have had the advantage of reading in draft the reasons of Member Evans.  I agree generally with his reasons and conclusions as to the liability for costs and it is only necessary for me to add some brief comments on one issue, the enforcement of the costs order.
  1. [3]
    The appellants have sought an order under s 34(3) of the Land Court Act 2000 (the Act), as applied to the Land Appeal Court by s 72 of that Act, that the costs order be made an order of the Supreme Court and enforced in the Supreme Court.
  1. [4]
    Sections 34(3)-(6) of the Act were omitted in 2013 by the Justice and Other Legislation Amendment Act 2013 (the 2013 Act)[1].  Section 34 of the Act now reads: 

"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. [5]
    Section 7B was inserted into the Land Court Act by s 106 of the 2013 Act and provides:

"7B  Land Court order may be enforced in Supreme Court

  1. (1)
    An order of the Land Court may be made an order of the Supreme Court and enforced in the Supreme Court. 
  1. (2)
    For subsection (1), it is enough to file the order in the Supreme Court."
  1. [6]
    Section 72 of the Act provides that: 

"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. [7]
    As a result of what appears to be an oversight, s 72 does not refer to s 7B and, therefore, orders made by the Land Appeal Court are not enforceable in the manner set out in s 7B.  Accordingly the enforcement order sought by the appellants cannot be made.  It is not anticipated that this will cause any difficulty for the appellants as the respondent is a model litigant and, it is expected, will comply with the Court’s orders.
  1. [8]
    If the parties are unable to agree on the quantum of costs, the costs may be assessed under Part 3 of Chapter 17A of the Uniform Civil Procedure Rules 1999 which, by virtue of ss 3(1) and (4) of the Land Court Rules 2000, applies with necessary changes to proceedings in the Land Appeal Court.
  1. [9]
    I agree with the orders proposed by Member Evans.
  1. [10]
    Member Evans:  On 18 December 2014 this Court allowed an appeal against a decision of the Land Court in relation to costs.  The Land Court’s decision was to dismiss the appellants’ application made under s 882(4) Water Act 2000 for costs of the appeal to it under s 877 Water Act 2000 in which the appellants had been successful.  This Court, by majority, ordered that 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 and that written submissions be filed and served as to the costs of the appeal to this Court.  Those written submissions have been provided. 
  1. [11]
    The appellants initially submitted that the respondent ought pay all of the appellants’ costs of the appeal to the Land Appeal Court including any reserved costs on a standard basis and that pursuant to “s 34(3) of the Land Court Act 2000” this order be made an order of the Supreme Court and enforced in the Supreme Court.  In their submissions in reply, the appellants revise their primary submission to contend that the respondent pay the appellants’ costs of the appeal, but excluding the costs of the application to introduce new evidence, such costs to be agreed or failing agreement to be assessed by a costs assessor of the Supreme Court.  They maintain their claim for an order said to be able to be made under s 34(3) Land Court Act 2000.
  1. [12]
    It ought be noted that there was an unsuccessful application by the appellants under s 56 Land Court Act 2000.  The costs of that application were reserved.  Oral submissions about those costs were made at the time.  The appellants concede that they are not entitled to the costs of that application but seek to limit their exposure to costs in relation to it in the way described.
  1. [13]
    The respondent submits that “[o]f the many arguments put by the appellants to the Land Appeal Court, only one argument was accepted by the majority of the Court.  The appellants should therefore receive only part of their costs of the appeal assessed on the standard basis”, which it submits should be 50%.  “Further, the respondent should have the costs of successfully resisting the application by the appellants to adduce new evidence assessed on the standard basis, or alternatively the costs of that application should be excluded from the costs of the appeal to which the appellants are otherwise held to be entitled.”
  1. [14]
    The principles relating to determining costs of an appeal to this Court are set out in Gallo v Chief Executive, Department of Environment and Resource Management (No 2)[2] and I shall not repeat them, save to acknowledge the part which s 55(b) Land Court Act 2000 may play which is expressly recognised by Henry J, in his judgment, and with which the President agreed at [69].
  1. [15]
    The respondent in this matter is correct to say that not all of the appellants’ arguments on costs succeeded. The respondent is also correct to criticise the notice of appeal. 
  1. [16]
    The respondent submitted that “of the many issues argued by the appellants, only one succeeded – the change of expert by the respondent.  The other grounds failed.”  It submitted that “[t]he respondent incurred costs in successfully resisting these grounds.  It is not appropriate that the respondent be ordered to pay the appellants’ costs on issues on which the appellant failed.  The ‘scattergun approach’ of the appellants was evident in the prolix notice of appeal which was the subject of criticism by the Court.  For example in Williams v Department of Environment and Resource Management[3] Henry J, with whom President MacDonald agreed, said:
  1. [17]
    The notice of appeal appended a document headed “Grounds of Appeal” but such grounds as it may have identified amidst its 45 paragraphs were as well disguised by detail there as they were in the appellants’ subsequent 24 page written “outline” of submissions.

Member Evans said:

  1. [142]
    This Court and the respondent ought not be required to trawl through a document like the one in the present case to distil the grounds of appeal for themselves.”
  1. [17]
    The appellants submit that their primary approach was to advance argument to demonstrate their position on the facts was so strong that there must be an error of the kind discussed in House v The King[4].  They submit the features raised by the appellants had potentially overlapping relevance to each of ss 882(4) (b), (f) or (g) Water Act 2000.  They also submit that their conduct was not unreasonable in raising those overlapping matters for determination.
  1. [18]
    The appellants rely on statements made in Pricom Pty Ltd v Sgarioto[5] and Hughes v Western Australian Cricket Association Inc[6].  Reference is also made to the dissenting judgment of McHugh J in Oshlack v Richmond River Council[7]  with whom Brennan J agreed (also in dissent).  The respondent submitted that this dissenting judgment was followed by the Land Appeal Court in Mio Art Pty Ltd v Brisbane City Council (No 3)[8].  This states the matter too highly.  At [17] the Land Appeal Court set out the argument advanced based on it.  Nowhere in the judgment which follows does the Land Appeal Court say that it follows that part of the dissenting judgment.
  1. [19]
    Only part of the passage of Eames J in Pricom Pty Ltd v Sgarioto is cited in the appellants’ written submissions– that part underlined as extracted below.  The full statement by His Honour is as follows:

“As a general rule costs should follow the event, and a successful party should obtain all of the costs of the action even although it failed to establish some of the alternative heads of its claim: Ritter v Godfrey [1920] 2 KB 47. However, in the exercise of its discretion the court may decline to order costs in favour of a successful party, or may order the successful party to pay the costs of the unsuccessful party, where the plaintiff failed to establish discrete heads of claim, or failed to establish issues which it pursued in its claim, although ultimately succeeding on the basis of another discrete head of claim: Hughes v Western Australian Cricket Association Inc (1986) ATPR 40-748, per Toohey, J at 48, 136.

In having regard to this question neither the fact that the plaintiff may be thought to have nearly succeeded on some of its other heads of claim, nor the fact that it may be thought to have been reasonable for the plaintiff to have argued its case on the alternative heads of claim which it pursued, is of particular, if any, relevance: Latoudis v Casey (1990) 170 CLR 534, at 567, per McHugh, J.

Although the court has an undoubted discretion to vary the costs order which would usually follow the event of a successful claim, on account of the plaintiff having failed to establish discrete heads of claim, the note of caution expressed by Jacobs, J in Cretazzo v Lombardi [1975] 13 SASR 4, at 16 bears repeating. His Honour held: "...I would wish to sound a note of cautious disapproval of applications, which are being made with increasing frequency, to apportion costs according only 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.... 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 succeeded, based merely on his success in those particular issues."

The continuing relevance of the remarks of Jacobs, J was acknowledged by Tadgell and Eames, JJ in State of Victoria v Master Builders Association of Victoria, unreported, Full Court, delivered 15 December, 1994, but as Ormiston, J observed in that case, in days of congested court lists and demands for the more efficient use of court resources, the factors noted by Jacobs J may have less weight today than when Cretazzo v Lombardi was decided.”

  1. [20]
    I should add to this, perhaps the possible relevance, in an appropriate case, of r 5 Uniform Civil Procedure Rules 1999, picked up by r 4 Land Court Rules 2000 but subject to ss 34, 72 and 55(b) Land Court Act 2000; however, the principles are as discussed in detail in Gallo No 2 at [17]-[18] and [338]-[343]. 
  1. [21]
    I accept that in this case, the conduct found by the majority to constitute a breach of s 882(4)(g) Water Act 2000 overlapped to some extent with arguments under s 882(4)(f) and s 882(4)(b)[9]. 
  1. [22]
    This Court found against the appellants on their argument under s 882(4)(b) and a wider variety of conduct under s 882(4)(g) than that on which they succeeded.  It is really the reliance on s 882(4)(b) which led to the appellants relying on a wider variety of matters and introducing a wider number of matters.  That is the nature of an argument based on this sub-section and, unlike the argument based on s 882(4)(f) which overlapped with s 882(4)(g) in relation to the change of expert, it compelled this court to consider all of these matters in order to come to a view on s 882(4)(b).
  1. [23]
    It was the appellants’ attempts to rely on a wider variety of conduct under s 882(4)(b) and a wider variety of conduct sought to be said to breach s 882(4)(g) which led to what the respondent seeks to characterise as a “scattergun approach”.
  1. [24]
    The overlap with what was found in the appellants’ favour was an overlap with s 882(4)(b) and an overlap with s 882(4)(f) in relation to the respondent’s conduct in relation to changing its expert.
  1. [25]
    There were arguments raised on which the appellants failed and which really go to s 882(4)(b) and other conduct relied on under s 882(4)(g).
  1. [26]
    That said, the majority applied the test in Mudie v Gainriver Pty Ltd (No 2)[10] as to what is vexatious.  On that test, what is vexatious includes public policy considerations and the interests of justice[11] and usually an argument based on this will, of its nature, involve consideration of a wide variety of conduct.  The conduct said to be in breach of s 882(4)(g) tied in with the argument on s 882(4)(b).  The argument in relation to the Calderbank offer failed, but this was run only as an attempt to obtain indemnity costs, and the appellants did succeed in obtaining substantial indemnity costs for different reasons.  
  1. [27]
    When one looks at the ultimate result, the reality is that the appellants have been largely successful in this costs appeal even though they failed on the argument under s 882(4)(b) and most of the arguments under s 882(4)(g).  The conduct found by the majority as infringing s 882(4)(g) overlapped with what was found to infringe s 882(4)(f);  it was essentially the same conduct, but s 882(4)(g) was found to be a more effective descriptor[12].
  1. [28]
    An order for 70% of their costs of the appeal below on an indemnity basis from the date of notification of change of the expert is a substantial judgment in the appellants’ favour, on the basis of the breach found.  The majority found that breach so serious as to entitle an award of indemnity costs.  The appellants had obtained no costs at all below.  Given the significant award of indemnity costs, even though a number of other arguments failed which could not be said to overlap with arguments on which the appellants succeeded, this is a case in which, as a matter of discretion, no apportionment ought be made for these unsuccessful arguments. 
  1. [29]
    In my view, unlike the position in Gallo No 2, this case is more like that where although unsuccessful on some arguments, on the basis of the majority’s approach in the substantive judgment (by which I am bound) the appellants ought have their costs in this Court, save for two matters.
  1. [30]
    The first relates to the costs of the wholly unsuccessful application under s 56 Land Court Act 2000. In Gallo No 2, I would have deprived those appellants of the costs of their application because although in my judgment partially successful, the appellants there failed on their Calderbank argument.  In my judgment the application there, whilst similar to the one here, did not attract s 56.  Here, the application on any view attracted s 56. It was without merit having regard to the requirements of s 56.  It failed completely.  The appellants should pay the respondent’s costs of that application on the standard basis.
  1. [31]
    The second relates to the costs of the notice of appeal.  This document contained much matter which it ought not to have contained: see my judgment in Williams v Department of Environment and Resource Management[13].  The appellants ought not have any costs relating to it because whilst a notice of appeal of some sort needed to be drawn, settled, engrossed, filed and served, the notice of appeal here suffered from the matters identified and would also have caused the respondent unnecessary costs, which in my view would offset any allowance being made for it at all.
  1. [32]
    The appellants have also sought an order said to be under s 34(3) Land Court Act 2000 which is said to be picked up by s 72 of that Act that the costs orders be made an order of the Supreme Court and enforced in the Supreme Court.
  1. [33]
    Whilst s 34 once did contain such a power, which was picked up s 72, it has not contained this power since amendments to the Land Court Act 2000 by Act No 35 of 2013 (being the Justice and Other Legislation Amendment Act 2013), which commenced on its date of assent on 29 August 2013.
  1. [34]
    That Act amended s 34 to read as follows:

“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. [35]
    It also inserted s 7B which provides as follows.

“7B Land Court order may be enforced in Supreme Court

  1. (1)
    An order of the Land Court may be made an order of the Supreme Court and enforced in the Supreme Court.
  1. (2)
    For subsection (1), it is enough to file the order in the Supreme Court.”
  1. [36]
    However this relates only to the power of the Land Court and not the Land Appeal Court.  Section 72 does not refer to s 7B.  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. [37]
    Accordingly, there is no power in this Court to make the order sought.  That said, as the respondent is a model litigant one would expect it to behave accordingly.  The sentiment I express here is the same one as perhaps underlies the rationale when a court, sometimes in an appropriate case, declines an injunction (as a matter of discretion) against an entity analogous to the respondent and instead makes a declaration.
  1. [38]
    As noted by JRS Forbes in his text Justice in Tribunals, 4th ed, 2014 at [16.57]

“It is assumed that ministers of state and statutory authorities will honour a declaration, but an injunction may be added if need be.” 

  1. [39]
    This case highlights the need for an urgent amendment of s 72 to pick up s 7B.
  1. [40]
    That said, in my view, r 4 Land Court Rules 2000 picks up the Uniform Civil Procedure Rules 1999 relating to orders for the appointment of costs assessors and the procedure for the assessment of costs in relation to costs orders of the Land Appeal Court, subject to appropriate modification to take into account the restrictions in the Land Court Act 2000.  One of those restrictions is that the Registrar cannot exercise any judicial or quasi-judicial power: s 49(3) Land Court Act 2000.  By s 73 the Registrar of the Land Court is also the Registrar of the Land Appeal Court.
  1. [41]
    Rule 4 Land Court Rules 2000 relevantly provides:

“Application of Uniform Civil Procedure Rules

4(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.” [emphasis added]

  1. [42]
    Accordingly, this should involve no difficulty for the assessment in this case. Under the UCPR, an assessment of costs (save in the case of an assessing registrar which is in my view excluded by reason of s 49(3) Land Court Act 2000) is carried out by a cost assessor in any event[14] by an order made on an application under r 710. This order could be made by this court as a consequential order. It seems to me that r 4 Land Court Rules 2000 picks up those provisions of the Uniform Civil Procedure Rules 1999, with necessary changes, so that the reference in r 710(5) can be read as a reference to this court, the rules relating to the appointment of costs assessors in rr 743J to 743R can be applied, so that the costs assessors on the list of costs assessors kept and published by the principal registrar of the Supreme Court may act as costs assessors in relation to assessing costs ordered by the Land Appeal Court and be appointed by this court[15] (rather than the Registrar) on an application under r 710[16].
  1. [43]
    Alternatively this court could make specific orders under s 57(c) Land Court Act 2000 to this effect. 
  1. [44]
    Further, it seems to me that if for some inexplicable reason the respondent[17] fails to pay the costs under the orders of this court, that this court’s orders for same have the effect of creating a debt or obligation to pay which could be sued for in either the Magistrates Court, District Court or the Supreme Court (depending on the amount assessed).  In this respect the case is in some (but not all) respects analogous to that of suing on a foreign judgment at common law, where one alternative open to a plaintiff is to sue on the foreign judgment itself as imposing a debt or obligation to pay[18].  In any event, whilst now very rare, an action on a judgment is something recognised at common law and indeed still by statute today: see s 10(4) Limitation of Actions Act 1974.  In Dennehy v Reasonable Endeavours Pty Ltd[19] Finkelstein J with whom both Madgwick and Dowsett JJ agreed noted:

“[8] Speaking generally, there are three categories of action on a judgment. One is an action to enforce a foreign judgment. For the purposes of a limitations statute it may be necessary to draw a distinction between an action on a foreign judgment commenced by writ and the enforcement of a foreign judgment after it has been registered under legislation such as the Foreign Judgments Act 1962 (Vic). It seems to be accepted that an action on a foreign judgment is not governed by s 5(4) but by s 5(1)(a). The reason for this is that such an action is treated as an action for a simple contract debt. In Williams v Jones (1845) 13 M & W 628, 634 [153 ER 262, 265] Alderson B said:

“The true principle is, that where a court of competent jurisdiction adjudges a sum of money to be paid, an obligation to pay it is created thereby, and an action of debt may therefore be brought upon such judgment. This is the principle upon which actions on foreign judgments are supported”

See also Grant v Easton (1883) 13 QBD 302. On the other hand, a judgment registered under legislation such as the Foreign Judgments Act is deemed to be a judgment obtained in a local court with the result that it will be covered by s 5(4) and s 5(7).

[9] The second category is a new action which is based on a judgment debt. Such an action is probably obsolete. But it once had a purpose. For example, I have already mentioned that at common law a judgment could not be enforced after a year and one day. However, within that period a plaintiff could take proceedings by action in debt on the judgment: Chitty's Archibald's Practice 12th ed, vol 2, 1866, 1123; Shaw v Allen (1914) 30 TLR 631. If the plaintiff obtained a fresh judgment, time would start to run again. Presumably, the plaintiff could continuously renew a judgment in this fashion, at least until the court decided that he was acting in abuse of its processes. It is also of interest to note that a bankruptcy petition is an action on a judgment. In In re a Debtor (No 50A/SD1995) [1997] Ch 310 it was held that bankruptcy proceedings did constitute an action which was barred by the English equivalent of s 5. Judge Paul Baker QC, sitting as a Judge of the High Court, said (at 314):

"It seems to me that bankruptcy proceedings are, first of all, a new proceeding so that it can be properly said that the proceedings are newly brought and are not in any way continuing some previous proceedings pursuant to the judgment or anything of that nature"

See also Chohan v Times Newspapers Ltd [2001] 1 WLR 184.

[10] The final category are proceedings which may or may not amount to "actions", namely proceedings by way of enforcement, such as by writs of execution. The question here is whether s 5(4) and s 5(7) only apply to the commencement of a new proceedings on a judgment or whether they are concerned with enforcement as well.” [emphasis added] [20]

  1. [45]
    All that s 7B Land Court Act 2000 does in relation to the Land Court is create a summary procedure to make this more efficient. The present absence of a statutory summary procedure (created by Act No 35 of 2013) in relation to orders of this court could not have been intended to affect common law rights to recover as a debt, costs owing and assessed under an order of this court. 
  1. [46]
    Accordingly, I would make orders as follows:
  1. The appellants pay the respondent’s costs of the application to adduce further evidence to be assessed on the standard basis.
  1. The respondent pay the appellants’ costs of the appeal to this court to be assessed on the standard basis, excluding the costs in Order 1 and excluding any costs of the notice of appeal to this court. 

ORDERS:

  1. The appellants pay the respondent’s costs of the application to adduce further evidence to be assessed on the standard basis.
  1. The respondent pay the appellants’ costs of the appeal to this court to be assessed on the standard basis, excluding the costs in Order 1 and excluding any costs of the notice of appeal to this court.

HENRY J

CAC MacDONALD

PRESIDENT OF THE LAND COURT

MD EVANS

MEMBER OF THE LAND COURT

Footnotes

[1]  No 35 of 2013.

[2]  [2014] QLAC 11, [17]-[18] and [338]-[343].

[3]  [2014] QLAC 10 at [17].

[4]  (1936) 55 CLR 499.

[5]  Unreported, Supreme Court of Victoria, (No 12926/1990), Eames J, 24 April 1995.

[6]  [1986] ATPR 40-478.

[7]  (1998) 193 CLR 72, 96.

[8]  (2013) 34 QLCR 222.

[9]  See Williams [2014] QLAC 10, at [77]-[78] agreed in by MacDonald P. 

[10]  [2003] 2 Qd R 271.

[11]  See Mudie at [37]. 

[12]  See the principal judgment in Williams [2014] QLAC 10, [77] and judgment of MacDonald P. 

[13]  [2014] QLAC 10, [138]-[148].

[14]  And not by the court or any taxing officer. Taxing officers and the former procedure of taxation of costs ceased to exist several years ago in the District and Supreme Courts and were replaced by outside costs assessors under the current procedure in the Uniform Civil Procedure Rules 1999. In my view, given the inconsistent provisions of s 49(3) Land Court Act 2000 r 714 is not picked up insofar as it refers to an assessing registrar.

[15]  By the application of r 4 (1) Land Court Rules 2000 which modifies “with necessary changes” r 710(5) UCPR and r 713 UCPR to refer to the Land Appeal Court, rather than the Registrar given ss 49(3) and 73 Land Court Act 2000.

[16]  Neither the Magistrates Court nor the District Court have a separate list of costs assessors but rely on the list made and kept by the principal registrar of the Supreme Court under r 743N.

[17]  Or for that matter the appellants

[18]  See for instance Nygh’s Conflict of Laws in Australia, 9th ed 2014 at [40.46] and cases there cited. See also generally Walker v Witter (1778) 1 Doug 1; 99 ER 1; Godard v Gray (1870) LR 6 QB 139.

[19]  (2003) 130 FCR 494.

[20]  See also Hodsell v Baxter (1858) EI BI & EI 884; 120 ER 739 which involved an action on a judgment (not a foreign one) where the plaintiff sued on a prior judgment of the Court of Queens Bench.  I should also add reference to the House of Lords decision in Lowlsley v Forbes [1999] 1 AC 329 and the judgment of Lord Lloyd of Berwick which traces in detail the history in England of actions on judgments, and holds, consistently with both the Full Federal Court and the Queensland Court of Appeal in Tonkin v Johnson [1999] 2 Qd R 318, that a writ of execution is not an action on a judgment within the limitation statute;  though see Cyran v Nelson [2014] QSC 291, 3-4.  

Close

Editorial Notes

  • Published Case Name:

    Williams v Department of Environment & Resource Management (No 2)

  • Shortened Case Name:

    Williams v Chief Executive, Department of Environment and Resource Management (No 2)

  • MNC:

    [2015] QLAC 1

  • Court:

    QLAC

  • Judge(s):

    Henry J, MacDonald P, Member Evans

  • Date:

    20 Feb 2015

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Chohan v Times Newspapers Ltd [2001] 1 WLR 184
1 citation
Jump To
Cite 1 - [2001] 1 WLR 184
Cretazzo v Lombardi (1975) 13 SASR 4
1 citation
Jump To
Cite 1 - (1975) 13 SASR 4
Cyran v Nelson [2014] QSC 291
1 citation
Jump To
Cite 1 - [2014] QSC 291
Dennehy v Reasonable Endeavours Pty Ltd (2003) 130 FCR 494
2 citations
Jump To
Cite 1 - (2003) 130 FCR 494
Cite 2 - (2003) 130 FCR 494
Gallo v Department of Environment and Resource Management (No. 2) [2014] QLAC 11
2 citations
Jump To
Cite 1 - [2014] QLAC 11
Cite 2 - [2014] QLAC 11
Godard v Gray (1870) LR 6 QB 139
1 citation
Jump To
Cite 1 - (1870) LR 6 QB 139
Grant v Easton (1883) 13 QBD 302
1 citation
Jump To
Cite 1 - (1883) 13 QBD 302
Hodsell v Baxter (1858) EI BI & EI 884
1 citation
Jump To
Cite 1 - (1858) EI BI & EI 884
House v The King (1936) 55 CLR 499
2 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40
3 citations
Jump To
Cite 1 - (1986) ATPR 40
Cite 2 - (1986) ATPR 40
Cite 3 - (1986) ATPR 40
In re A Debtor (No 50A-SD-1995) [1997] Ch 310
1 citation
Jump To
Cite 1 - [1997] Ch 310
Latoudis v Casey (1990) 170 CLR 534
1 citation
Jump To
Cite 1 - (1990) 170 CLR 534
Lowlsley v Forbes [1999] 1 AC 329
1 citation
Jump To
Cite 1 - [1999] 1 AC 329
Mio Art Pty Ltd v Brisbane City Council (No 3) (2013) 34 QLCR 222
2 citations
Jump To
Cite 1 - (2013) 34 QLCR 222
Cite 2 - (2013) 34 QLCR 222
Mudie v Gainriver Pty Ltd[2003] 2 Qd R 271; [2002] QCA 546
2 citations
Jump To
Cite 1 - [2003] 2 Qd R 271
Cite 2 - [2003] 2 Qd R 271
Oshlack v Richmond River Council (1998) 193 CLR 72
2 citations
Jump To
Cite 1 - (1998) 193 CLR 72
Cite 2 - (1998) 193 CLR 72
Ritter v Godfrey (1920) 2 KB 47
1 citation
Jump To
Cite 1 - (1920) 2 KB 47
Shaw v Allen (1914) 30 TLR 631
1 citation
Jump To
Cite 1 - (1914) 30 TLR 631
Tonkin v Johnson [1999] 2 Qd R 318
1 citation
Jump To
Cite 1 - [1999] 2 Qd R 318
Walker v Witter (1778) Doug 1
1 citation
Jump To
Cite 1 - (1778) Doug 1
Williams v Department of Environment and Resource Management [2014] QLAC 10
5 citations
Jump To
Cite 1 - [2014] QLAC 10
Cite 2 - [2014] QLAC 10
Cite 3 - [2014] QLAC 10
Cite 4 - [2014] QLAC 10
Cite 5 - [2014] QLAC 10
Williams v Jones (1845) 13 M and W 628
1 citation
Jump To
Cite 1 - (1845) 13 M and W 628

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.