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Robke v Chief Executive, Department of Transport and Main Roads; Robke & Anor v Mackay Sugar Ltd[2025] QLC 3

Robke v Chief Executive, Department of Transport and Main Roads; Robke & Anor v Mackay Sugar Ltd[2025] QLC 3

LAND COURT OF QUEENSLAND

CITATION:

Robke & Anor v Chief Executive, Department of Transport and Main Roads; Robke & Anor v Mackay Sugar Ltd [2025] QLC 3

PARTIES:

Kerrie Maree Robke

(applicant)

David Karl Robke

(applicant)

v

Chief Executive, Department of Transport and Main Roads

(respondent)

FILE NO:

AQL036-23

PARTIES:

Kerrie Maree Robke

(applicant)

David Karl Robke

(applicant)

v

Mackay Sugar Limited

ACN 057 463 671

(respondent)

FILE NO:

SIA035-23

PROCEEDING:

Determination of compensation under Acquisition of Land Act 1967 and Sugar Industry Act 1999

DELIVERED ON:

30 January 2025

DELIVERED AT:

Brisbane

HEARD ON:

28 October 2024 - 1 November 2024

HEARD AT:

Mackay

MEMBER:

ND Loos

ORDERS:

  1. 1.
    Compensation is determined in the sum of Nine Hundred and Seventy-Eight Thousand, Five Hundred and Twenty Seven Dollars and Eighty Six Cents ($978,527.86).
  1. 2.
    By 4pm on 28 February 2025, the parties are to file and serve written submissions about:
  1. (a)
    how to allocate a proportion of that compensation to be paid by the DTMR and a proportion to be paid by Mackay Sugar;
  1. (b)
    the calculation of interest on the compensation amount; and
  1. (c)
    costs.

CATCHWORDS:

REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – COMPENSATION – ASSESSMENT – where the respondents resumed land for road purposes – where the resumed land included land granted for cane rail easements – where the applicants claimed compensation under both the Acquisition of Land Act 1967 and the Sugar Industry Act 1999 – where the applicants based entire claim for compensation on costs attributable to disturbance – where respondents’ disagreed with the applicants’ approach to the assessment of compensation – where the respondent agreed to some amounts including an amount for the value of the land resumed and some disturbances to the business – whether the applicants’ have made out their disputed claims for costs relating to disturbance as “reasonable” and a “direct and natural consequence” of the resumption in accordance with section 20(5)(g) of the Acquisition of Land Act 1967

Acquisition of Land Act 1967

Land Court Act 2000

Sugar Industry Act 1999

Boland v Yates (1999) 167 ALR 575

Commissioner of Succession Duties (SA) v Executor Trustee & Agency Co of SA Ltd (1947) 74 CLR 358

Director of Buildings v Shun Fung Ltd [1995] 2 AC 111

Edward Charles Zunker v The Commissioner of Main Roads [1981] QLCR 37

Ellwood v Mackay Sugar Co-operative Association Ltd [2007] QLC 52

Heavey Lex No. 64 Pty Ltd v Chief Executive, Department of Transport (2001) 22 QLCR 177

Lenz Nominees Pty Ltd v Commissioner of Main Roads [2012] WASC 6

Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705

March v City of Frankston (No 1) [1969] VR 350

Nevis Pty Ltd v Chief Executive, Department of Main Roads (2001) 22 QLCR 231

Ostroco v Department of Transport and Main Roads (2013) 197 LGERA 163

Spencer v The Commonwealth (1907) 5 CLR 418

State of Queensland v Pajares [2004] QLAC 59

Sydney Water Corp v Caruso (2009) 170 LGERA 298

The Commissioner of Main Roads v Lorraine Zunker [1981] QLCR 30

Townsville City Council v Chief Executive, Department of Main Roads [2006] 1 Qd R 77

Turner v Minister for Public Instruction (1956) 95 CLR 245

Woolworths Ltd v Director of Liquor Licensing (2013) 45 WAR 446

Yara Pilbara Fertilisers Pty Ltd v Oswal [2016] VSC 440

APPEARANCES:

Mrs K Robke, self-represented, for the applicants

Mr K Wylie of Counsel (instructed by Clayton Utz) for the respondents

REASONS FOR DECISION

Contents

Contents4

Introduction5

The farm5

The land taken by the DTMR6

The land taken for cane railway easements6

Principles7

DTMR claim7

Mackay Sugar claim8

Costs attributable to disturbance8

The competing approaches8

Characterising the competing approaches within the statutory framework10

Points of agreement11

Value of the land taken11

Flooding12

Farming and rearrangements – yet to be incurred16

Economic loss to the business18

The Robkes’ accounting evidence generally18

Economic loss from reduced cropping area (excluding essential access roads) and economic loss from reduced net profit on the balance of the land (reduced tonnage)20

Economic loss from reduced cropping area from construction of essential access roads23

Increased costs due to additional travel24

Increased costs due to weed introduction26

Increased costs due to vermin28

Increased costs in road maintenance28

Economic loss from paddock 8-1 not being cultivated29

Loss of personal wages/income30

Damage to the house and the worker’s cottage32

The main house33

The worker’s cottage34

Legal and other consultancy costs35

Dealing with the two claims together39

Assessment of compensation39

Conclusion40

Orders41

  1. Introduction
  1. [1]
    Mr and Mrs Robke are experienced cane farmers.  In 2017, the Department of Transport and Main Roads acquired a 3.945 hectare strip of their cane farm to build the Mackay Ring Road.  The resumption caused Mackay Sugar to relocate the cane rail line.
  2. [2]
    The resumption had the practical effect of splitting the farm in two.[1]
  3. [3]
    The case is unusual because there is no dispute about the value of the land taken.[2]  Instead, the Robkes focus on economic loss.
  4. [4]
    The Robkes claim $4,094,624.[3] 
  5. [5]
    The respondents say that the compensation ought to be $875,818.[4]
  1. The farm
  1. [6]
    The Robkes farm is only 10 kilometres from central Mackay.  It is near the Mackay Sugar Racecourse Mill.  It is within what is described as a “dress circle” cane farming aggregation.[5] 
  2. [7]
    It is improved by an attractive four bedroom house, built in about 2010.[6]  There are also various sheds and an old cottage.  The house had an inviting view to the nearby sugar mill and across other properties, east, towards the Central Queensland University campus.[7] 
  3. [8]
    While it is still possible to see the Mackay Sugar Mill, the Mackay Ring Road now features in the view from the house.
  4. [9]
    Mr Robke is a third generation cane farmer.  He has lived his entire life at the property.  His entire working life has been on this farm. Mrs Robke is a chartered accountant.  Her parents and grandparents were cane farmers.  She has lived at the property for decades and runs the business side of the farming operation.  Between the two of them, they are familiar with every aspect of their land and every detail of their business.  They are particularly affected not just by the loss of land, but by the effects introduced by the construction of the Ring Road – which include access, flooding, vermin and weed problems. 
  1. The land taken by the DTMR
  1. [10]
    Prior to the resumption, the Robkes’ cane farm was a rectangle of about 435 metres by 1,079 metres.[8]  It was 65.7445 hectares.
  2. [11]
    Road access to the farm was from Peri Road.  There was unrestricted access across the whole of the farm.[9]
  3. [12]
    On 12 August 2016, the DTMR acquired a 3.91 hectare[10] strip of land that divided the rectangle shaped farm into two slightly uneven squares.  That is, the resumed strip – which has a width of between 64.44 and 68 metres[11] – cut the farm in half.  Road access to the farm remains from Peri Road.
  4. [13]
    On 26 May 2017, an amended taking of land notice was published in the Gazette.
  5. [14]
    On the resumed strip of land, the DTMR constructed a section of the Mackay Ring Road.  It is a 2 lane country highway with a speed limit of 100 kilometres per hour.  It rises to an overpass where it crosses the Robkes’ farm, which permits the Robkes access to both parts of their farm via an underpass.
  1. The land taken for cane railway easements
  1. [15]
    A cane railway runs throughout the area, to provide access to the nearby Mackay Racecourse Mill.  The resumption and the construction of the Mackay Ring Road required the cane railway to be re-located. 
  2. [16]
    New cane rail easements were granted in the south east corners of the land.  The two easements are 700 square metres and 3,324 square metres. 
  3. [17]
    The claim against Mackay Sugar is not about a loss of land.  That said, the cane railway causes a 100% diminution in the value of the easement areas.[12]
  1. Principles
  1. DTMR claim
  1. [18]
    The claim against the DTMR is governed by section 20 of the Acquisition of Land Act 1967 (ALA).  The principles which dictate how to approach the assessment of compensation are well established:[13]
    1. the Court’s function in assessing compensation is to find a figure which represents adequate compensation to the landowner for the loss of their land;[14]
    2. the value of the land is determined by applying the Spencer test – the price that would be agreed between a willing, but not anxious, hypothetical buyer and seller;[15]
    3. it is not the role of the Court to determine whether the figure put forward by the Robkes is correct, or whether the figure put forward by the respondents is correct – it is the role of the Court to determine the correct figure;[16]
    4. if any doubts exist in assessing the compensation payable, then those doubts should be resolved in favour of a more liberal estimate in favour of the dispossessed owner;[17]
    5. the preceding point does not detract from the Court’s obligation to engage with and evaluate the evidence of competing witnesses.[18]
  1. Mackay Sugar claim
  1. [19]
    The claim against Mackay Sugar is governed by section 68 of the Sugar Industry Act 1999.  That provision does not prescribe a method of assessing compensation – it simply provides that the Court “may decide the amount” of compensation.  This Court has considered what that means in Ellwood v Mackay Sugar Co-operative Association Ltd [2007] QLC 52 at [15]-[32].  
  1. Costs attributable to disturbance
  1. [20]
    Both section 20(5) of the AIA and section 68(5) of the SIA involve an assessment of reasonableness, when considering whether costs are attributable to disturbance. The test of what is reasonable has been discussed by the Land Appeal Court in Heavy Lex,[19] Nevis Pty Ltd v Chief Executive, Department of Main Roads,[20] and Inglis & Ors v State of Queensland (No. 2); State of Queensland v Inglis & Ors.[21] The principles in making such as assessment are:
    1. losses must be of a nature and within the scope of those which a reasonable person in the position of the claimant would have done or caused to be done;[22]
    2. the amount or quantum of the losses must be reasonable in the circumstances;[23]
    3. the losses must be actually incurred and quantifiable;[24] and,
    4. they must not be losses which a reasonable person would have avoided.[25]
  1. The competing approaches
  1. [21]
    The parties produced a ‘Summary of Applicants’ Claims and Respondents’ Assessment’[26] and a ‘List of Issues not in Dispute’.[27]  There is also a List of Issues in Dispute[28] – which casts the issues as 19 separate questions.[29]
  2. [22]
    There is disagreement about how the Robkes’ claims correctly fit within the framework of section 20 of the ALA.  The Robkes have not produced any valuation evidence and do not challenge the evidence of the respondent’s valuer, Mr Williams.  Instead, they base their claim for compensation on the economic losses they say they have, or will, suffer because of the resumption.   They say that it is their prerogative to pursue the claim entirely under section 20(5)(g) of the ALA.
  3. [23]
    The economic losses claimed by the Robkes fall into two broad categories – (1) lost profits and (2) increased costs to farm activities.
  4. [24]
    The respondents disagree with the Robkes’ approach.  They submit that this Court is bound by the decisions of the Land Appeal Court in The Commissioner of Main Roads v Lorraine Zunker[30] and Edward Charles Zunker v The Commissioner of Main Roads.[31]  Counsel for the respondents submits that the following passages from those cases are ratio decidendi and are binding:
  1. What must be ascertained here is the market value of the land and crop at the date of resumption. What would an owner reasonable expect to realize [sic] if he were to offer the property for sale in the market place? We hold that no prudent purchaser would be prepared to pay for a crop which might be harvested some 12 months and 24 months are the date of his purchase. He would look to the value of the cane stools and assess their anticipated ratoon expectancy and the growth of the plant at the date of purchase, and this is the measure of the value of the crop to him. The principle is established by the judgment of the Privy Council in Pastoral Finances Associated Limited v. The Minister (1914) A.C. 1083. In the course of that judgment, Lord Moulton said:–
  1. “Now it is evidence that no may would pay for land in addition to its market value the capitalized value of the savings and additional profits which he would hope to make by the use of it. He would no doubt reckon out the savings and additional profits as indicating the elements of value of the land to him, and they would guide him in arriving at the price which he would be willing to pay for the land, but certainly if he were a business man that price would not be calculated by adding the capitalized savings and additional profit to the market value.”
  1. Having received compensation for the cane stools as they existed at the date of resumption, we find that the dispossessed owner has been fully compensated for her loss and no amount can be awarded for the loss of future crops.[32]
  1. And:
  1. It is well established that if a piece of land is taken the dispossessed owner is entitled to receive the value of the land to him but not, in addition, compensation for the loss of anticipated profits which he might be expected to make from the use of the land–Vide for example Pastoral Finance Association Ltd v. The Minister (supra) at pp. 1088-9. Compensation on this basis would in effect amount to placing the claimant in a far better position money wise than he occupied before resumption, because he would not only have received capital in the form of money payment for the land taken which would be available for income earning investment but also he would receive a capitalized [sic] amount for the income he anticipated to make form that capital sum in its previous form as land.[33]
  1. [25]
    It appears that neither Zunker decision has been referred to by the Land Appeal Court or this Court. 
  1. Characterising the competing approaches within the statutory framework
  1. [26]
    Section 20(1) of the ALA, relevantly, provides that assessing compensation involves both the value of the land taken and the claimant’s costs attributable to disturbance.   Costs attributable to disturbance are defined in section 20(5).  That definition includes:
  1. (e)
    other financial costs that are reasonably incurred or that might reasonably be incurred by the claimant, relating to the use of the land taken, as a direct and natural consequence of the taking of the land;
  1. (f)
    an amount reasonably attributed to the loss of profits resulting from interruption to the claimant’s business that is a direct and natural consequence of the taking of the land;
  1. (g)
    other economic losses and costs reasonably incurred by the claimant that are a direct and natural consequence of the taking of the land.
  1. Example of costs for paragraph (g)— cost of school uniforms for children enrolled in a new school because of relocation from the land taken
  1. [27]
    The parties disagree about how to correctly classify the Robkes’ claim.  The competing possibilities are that:
    1. the Robkes seek to incorporate those parts of their claim into an assessment of the value of the land taken – by what the respondents call a ‘capitalisation valuation methodology’; or
    2. the Robkes advance their claim as costs attributable to disturbance under section 20(5)(g).
  2. [28]
    The respondents submit that “it is not open to a claimant to elect whether to make a claim under s. 20(5)(g) as a ‘replacement’ or alternative to a land value claim”.[34]  The Robkes say that it is not for the respondents to tell them how to frame their own claim.
  3. [29]
    In Heavey Lex No. 64 Pty Ltd v Chief Executive, Department of Transport,[35] the Land Appeal Court discussed the nature of costs attributable to disturbance.  After referring to the authorities including Boland v Yates,[36] the Land Appeal Court said:
  1. [38]
    The authorities discussed earlier make it plain that disturbance is a claim for economic loss.  In Horn v Sunderland Corporation, Scott LJ spoke in terms of “a loss of money by disturbance”.  In Boland, the reference was to “economic losses”.  The concept under consideration is one which relates to compensation for losses sustained by a dispossessed owner.  Losses, to be recoverable, must be actually incurred and quantifiable. …
  1. [30]
    There are express statutory provisions permitting the Robkes to pursue financial costs, loss of profits and “other economic losses” as costs attributable to disturbance. I consider that the Robkes’ claims fall within section 20(5).
  2. [31]
    When the two Zunker cases were decided, the Act did not codify what constituted costs attributable to disturbance.  There was no section 20(5).  Because section 20(5)(e), (f) and (g) of the ALA now expressly include costs of that kind, it is my view that the Zunker decisions do not exclude such claims being made.
  1. Points of agreement
  1. [32]
    There is common ground about amounts claimed for construction disturbance already incurred and farming and rearrangement costs yet to be incurred.[37]   It is notable that the respondents have agreed to compensation for costs that are yet to be incurred.
  2. [33]
    The parties also agree that the applicants are entitled to interest on the amount of compensation ultimately determined (including costs attributable to disturbance).  When interest is calculated, the $190,000 advance paid by the DTMR in January 2020 must be brought to account.[38]
  1. Value of the land taken
  1. [34]
    Mr Williams was the only valuer to give evidence.  His evidence was not challenged.[39]
  2. [35]
    Mr Williams utilised the before and after method of valuation.  His before value was $1,780,000.  His after value was $1,565,000. 
  3. [36]
    That yields an assessment for the loss of land, severance and injurious affection of $215,000.[40]  He clearly explains and justifies the findings in his report with reference to comparable sales.
  4. [37]
    I accept his evidence as to the value of the land taken.
  1. Flooding
  1. [38]
    Flooding is not a specific line item in the claim for compensation.  It does, however, inform the impacts on farming operations and impacts on the worker’s cottage.  The parties disagree about flooding magnitude and effect.
  2. [39]
    The respondents rely on the evidence of a hydraulic engineer, Mr Daly.  Mr Daly presented a detailed flood model for the subject land, which shows flood impacts arising from the resumption.  Mr Daly’s report notes:

… Flood issues to the Subject Property are found to comprise an increase in flood levels, flood depths, times of inundation of flood waters (resulting on prolonged inundation), additional land areas subject to inundation as well as a re-distribution of flood flows over and above what would otherwise have occurred prior [to the resumption]. …[41]

…

What is… clear is that the [ring road] and cane railway works have effectively constructed barriers across the floodplain which have resulted in considerable changes to the flood characteristics and flow dynamics at the subject property which is reflected in the water flow plot results.  This is complicated by the [ring road] cross drainage capacity which influences the component of the flows that can traverse under the [ring road] embankment versus flows that are shed laterally along the embankment.  The hydraulics of the floodplain are complex and are now further complicated with the presence of the since constructed [ring road] and cane railway works.[42]

  1. [40]
    The flooding impact varies depending on the flood event.  It is a complex picture with some flood events resulting in a greater area of inundation than existed before the resumption, some flood events resulting in no change and some flood events resulting in a marginally improved situation post-resumption.  Mr Daly’s Table 9-5 and Figure 9-9 outline the before and after figures.[43]
  2. [41]
    There is no doubt that in some flood events, a greater area of the property will be inundated.  Mr Daly’s modelling shows these will be:
    1. for a 10% Annual Exceedance Probability (AEP) event, a 0.47 hectare increase;
    2. for a 2% AEP event, a 0.76 hectare increase;
    3. for a 1% AEP event, a 5.46 hectare increase;
    4. for a 0.2% AEP event, a 7.18 hectare increase.
  3. [42]
    Mr Daly separately considered the area of land inundated with reference to areas that would remain inundated for longer than 36 hours. Mr Daly used the 36-hour benchmark because Mr Thompson, the respondents’ agronomy expert, considered that it is the longest period that sugar cane can remain inundated and survive after a flood.[44]
  4. [43]
    For cane which remains inundated for longer than 36 hours, it is uniformly a negative impact.  The model shows that the areas to be inundated for more than 36 hours will involve:
    1. for a 10% AEP event, a 0.32 hectare increase;
    2. for a 2% AEP event, a 0.64 hectare increase;
    3. for a 1% AEP event, a 0.62 hectare increase;
    4. for a 0.2% AEP event, a 0.58 hectare increase.
  5. [44]
    All of that said, sizeable parts of the farm experienced inundation for longer than 40 hours before the resumption.[45]  What Mr Daly’s evidence looks at is the extent to which that pre-existing problem has been exacerbated.
  6. [45]
    Mr Thompson considered that those increased flooded areas are less than 1% of the actual crop area.  Having regard to the highly variable yield of cane farms, he says that the 1% change is immaterial and well within the variation in yield one could expect.[46]  I agree that they are small areas, but the resumption reduced the size of the land across which that variability applies.  That is, before the resumption, the Robkes had more land and therefore a greater margin for error.  I do not agree with Mr Thompson that these areas as so small as to disappear within a margin of error.
  7. [46]
    The Robkes say that:
  1. (a)
    Mr Daly’s model understates the flooding impacts; 
  1. (b)
    the model is flawed because:  
  1. (i)
    it does not account for cyclones and monsoons, on top of regular minor flooding, which affects the Mackay district;
  1. (ii)
    it has not been prepared for events when the Pioneer River floods; and
  1. (iii)
    it is prepared on the assumption of well-maintained drains, with a 20% blockage allowance – but, in reality, drains become more blocked than that.
  1. (c)
    it is wrong to use a figure of 36 hours as the threshold at which sugar cane becomes irreparably damaged. 
  1. [47]
    As to the points made by the Robkes identified in paragraph [46] above, my conclusions are:
  1. (a)
    that the model is flawed because it does not account for cyclones or events when the Pioneer River floods, was put to Mr Daly during his oral evidence. Mr Daly said during oral evidence that he considered, at the time of preparing his report, that the property would be subject to increased flooding due to its close proximity to the Pioneer River and because of events which had been measured between 1940 and 2006.[47] That did not change his evidence. There is no competing flood study.  I accept Mr Daly’s evidence.
  1. (b)
    regarding the assumption of well maintained drains, the Robkes were forceful in pointing out that drains on their farm have been blocked before.  Mr Paul Robke offered photographs of the consequences of poorly maintained drains.[48]  The Robkes say that Mr Daly’s 20% blockage assumption allowance does not reflect reality.  Pressed by Mrs Robke during cross-examination, Mr Daly confirmed that the blockage allowance has a “significant impact to the modelling results”.[49]  In a further exchange about the blockage allowance, Mr Daly adhered to the 20% figure and said, “[c]learly, it comes down to maintenance – ongoing maintenance as well…”.[50]  He added that “[b]lockage is not a definitive science”.[51]
  1. I accept that blocked drains are a problem for the Robkes.  The more new drains that have to be created, the more opportunities for blockages arise.  Some drains are on DTMR land, meaning that the maintenance of those is beyond the Robkes’ control.  This all leads to negative impacts on the farm.  There is, however, no evidence about how onerous or time consuming the maintenance obligations will be for the new drains.  There is no evidence of how that might be reflected in compensation.  I do not consider that adopting a 20% blockage rate makes Mr Daly’s flood model inapplicable or wrong.  His model uses a reasonable standard.  The 20% blockage figure is likely to be correct, or even conservative, if the drains are properly maintained.
  1. (c)
    the 36 hour threshold suggested by Mr Thompson is an estimate drawn from findings by Sugar Research Australia in a document annexed to his report.  The document indicates that the period may be as long as 72 hours.[52]   Mr Paul Robke told the Court that he has seen damage in cane that has been under water for less than 24 hours.[53]  He agreed that 24 to 36 hours is “probably about right”.[54]  My view is that there is no firm evidence of a specific time at which the plant is damaged or destroyed – it must change depending on the circumstances (including the composition of the flood water, the velocity at which it is moving, and the maturity and height of the cane plant[55]).  I consider that given the variability, 36 hours is a reasonable period of time for Mr Daly to have utilised in his analysis.
  1. [48]
    None of the Robkes’ points lead to the conclusion that Mr Daly’s model ought not be used.
  2. [49]
    Ultimately, the evidence clearly shows that the resumption will cause more of the farm will be inundated than happened before.  That is a negative impact on the Robkes’ farming operation. 
  3. [50]
    The Robkes do not claim a specific amount of compensation for costs of flooding.  Flooding is a component of their lost profits claim and a component of the damage to the worker’s cottage claim.  There is no evidence about how the Robkes might have been compensated for the increased burden of maintaining the new drains. 
  1. Farming and rearrangements – yet to be incurred
  1. [51]
    The Robkes claim $375,382 for farming and rearrangement costs, yet to be incurred.  The respondents say that the figure should be $220,736.
  2. [52]
    The Robkes’ figure includes:
    1. $352,740 for the construction of new, cement-stabilised base headlands;
    2. $17,808 for laser levelling of the paddocks; and
    3. $4,834 for ash.
  3. [53]
    The respondents’ figure includes:
    1. $170,614 for the construction of grassed headlands;
    2. $17,808 for laser levelling of the paddocks;
    3. $4,834 for ash; and
    4. $27,480 for the construction of drainage through the headlands.
  4. [54]
    The difference is whether the new headlands should be constructed with a cement-stabilised base or with grass.  Headlands are the area at the end of each row that give room to move machinery so as not to damage the cane.
  5. [55]
    Mr Thompson’s report describes the details of the disagreement:[56]

… The Robkes’ claim for new headlands is based on a 27/6/24 quote from Vassallo Constructions with the headlands proposed to be constructed on a cement stabilised base rather than to a farm headland standard.

Cement stabilised bases are ordinarily only required when constructing a rural road.  However, in my opinion, it is not necessary or reasonable to require the standard of a rural road for headlands on the Robkes’ farm because the headlands are not trafficked when under water or wet which is when you would need a cement stabilised base.

Consistent with this opinion, I observe that headlands in this cane district are all grassed without cement stabilised bases. …

  1. [56]
    There is little evidence from the Robkes that positively supports or explains the need for a cement stabilised base.  Two quotes were produced from Vassallo Constructions, dated 5 December 2021 and 27 June 2024.[57]  Mr Paul Robke was cross-examined on the topic.  He said that a headland is a gravelled headland that you can get on in wet weather. That “every time it rains, you just cannot pull up until it dries out”.[58]  He did not agree that cement stabilised bases are uncommon in farms in Mackay.[59]  Mr Robke had not read Mr Thompson’s report,[60] so his evidence did not engage with Mr Thompson’s opinions.
  2. [57]
    I prefer the evidence of Mr Thompson, set out at paragraph [55] above.  That is because the contrary position was not explained or justified.  It is unclear whether the ability to use a headland when it is under water or wet is a helpful thing to have, or whether it is an essential thing to have.  I cannot assess the reasonableness of a cement stabilised base as a cost attributable to disturbance without evidence about why it is required.
  3. [58]
    The Robkes’ claim does not include the $27,480 offered by the respondents for drainage through the headlands.  They do not want the six drains shown in Exhibit 3.  They would prefer a table drain, which they say would have less risk of becoming blocked.  There is no evidence about the design or location of a table drain or what it would cost.  Acting on the evidence available, I consider that Mr Thompson’s proposal for the six drains is reasonable.  The respondents have provided a figure for those six drains - $27,480.  I accept that. 
  4. [59]
    The costs attributable to disturbance for this item ought to be $220,736.
  1. Economic loss to the business
  1. [60]
    There are eight components of the economic loss claim.  Input is required from numerous witnesses to understand each component and the response to it.  For the Robkes, it is the evidence of Mr Tsakissaris (accountant), Mr Faulkner (agronomy/farming expert) and Mr Paul Robke (lay witness with respect to management of this farm). For the respondents, it is Mr Lunn (accountant), Mr Thompson (agronomy expert) and Mr Daly (flood engineer).
  2. [61]
    The eight components are evaluated below.  Before that, though, the respondents submit that parts of the evidence of Mr Tsikissaris are inadmissible.  That ought to be considered first.
  1. The Robkes’ accounting evidence generally
  1. [62]
    The Robkes rely on the evidence of Mr Tsakissaris to justify their claim.  The respondents called Mr Lunn to respond to Mr Tsakissaris.  Mr Lunn’s report is dated 4 September 2024.
  2. [63]
    The respondents submit that elements of Mr Tsakissiris’ evidence are inadmissible because either (1) the underlying facts were not proved, or (2) because there was no expertise involved or applied by him.[61]
  3. [64]
    As to the first point – that Mr Tsakissiris relied on underlying facts that were not ultimately proved – the respondents are correct that for opinion evidence to be admissible, so far as the opinion is based on facts observed by the expert, those facts must be identified and admissibly proved by the expert, or identified and proved in some other way.[62]  Mr Tsakissiris relies on profit/loss statements of the cane farm given to him by the Robkes.  At the start of the hearing, the respondents objected to that evidence.  Some of those objections were resolved on the basis that documents were excluded[63] but that these documents might later be permitted into evidence if Mrs Robke, when she gave her evidence, confirmed the accuracy of various figures given to Mr Tsakissiris and others. 
  4. [65]
    Mrs Robke partly followed through with that at the outset of her evidence.[64] She confirmed and adopted as her evidence, the ‘Amended Statement of Claim of Kerrie Marie Robke’[65] and the contents of a letter dated 11 January 2024 of Mr Fanning, her accountant.[66]  Mrs Robke did not confirm the information in Annexures 2.1, 2.2, 3.1-3.5, 4.1-4.13, 6, 7, 8 and 11.1 of the Tsakissiris report. 
  5. [66]
    Neither party made any submissions about whether section 92 of the Evidence Act 1977 would permit those Annexures to be admitted into evidence. 
  6. [67]
    I do not propose to consider the Evidence Act or further authorities, because in my view section 7 of the Land Court Act 2000 is sufficient to permit admission of the evidence of Mr Tsakissiris.  That section provides:
  1. 7
    Land Court to be guided by equity and good conscience
  1. In the exercise of its jurisdiction, the Land 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.
  1. [68]
    Section 7 has limits – it is not a mechanism that permits any unverified information to be admitted and considered.[67]  In this case, it is my view that Mrs Robke provided the figures genuinely to Mr Tsakissiris and intended to confirm those figures in her evidence.  Her failure to do that ought not to eliminate the Tsakissiris report from being considered in assessing compensation.  The weight to be given to his opinions is a separate matter. 
  2. [69]
    As to the second point – that Mr Tsakissiris applied no expertise – the respondents cited no authority on the topic.  The respondents say that all that he did was a “simple mathematical exercise” of multiplying figures.  There are cases which indicate that evidence of that kind is admissible either as opinion evidence or as evidence of fact, derived from the application of specialised knowledge[68].
  3. [70]
    My view is that his evidence is admissible either because he brought his accountancy expertise to an analysis of the books of the cane farm and then produced calculations; or he offered evidence of fact, derived from the application of specialised knowledge.  I identify those alternatives because different aspects of his evidence fall into those two categories.  I do not agree with the respondents that his evidence is inadmissible because it was “a simple mathematical exercise”. 
  1. Economic loss from reduced cropping area (excluding essential access roads) and economic loss from reduced net profit on the balance of the land (reduced tonnage)
  1. [71]
    The Robkes claim $356,045 from the DTMR and $62,832 from Mackay Sugar for economic loss from reduced cropping area (excluding essential access roads). They also claim $678,449 from the DTMR and $119,726 from Mackay Sugar for economic loss from reduction to net profit on the balance of the land (reduced tonnage).
  2. [72]
    The respondents say the amounts for both ought to be nil.
  3. [73]
    The items[69] ought to be dealt with together because they each face a conceptual challenge – which is that the Robkes are to be compensated for the value of the land lost.
  4. [74]
    To compensate them for lost profit or reduced tonnage associated with the lost opportunity to farm lost land, risks double compensating.  That is, the Robkes will have received compensation for the lost land and could utilise that compensation money to buy new land or engage in some other profit or income generating activity. 
  5. [75]
    The Robkes would say that they would prefer to pursue lost profits, than have compensation for the value of the land.  I do not consider that that is the proper approach.  Section 20 of the ALA speaks of the value of the land taken and costs attributable to disturbance.  Here, there is unchallenged evidence about the value of the land.  That must be the starting point for the assessment of compensation.
  6. [76]
    The respondents, through Mr Thompson, put forward a detailed proposal for works to be done on the farm to create new roads, drains and headlands.[70]  That work is included in the items about farming and rearrangement costs.[71]  Those works will be implemented and according to Mr Thompson, they will ameliorate or offset the impacts of the resumption on the farming operation.[72]
  7. [77]
    It is difficult, then, to approach the claims for compensation for lost profit and reduced tonnage without a note of caution about the Robkes being compensated twice for the same thing.
  8. [78]
    Separately, there is criticism of the approach of Mr Tsakissiris.  He quantifies lost profits and reduced tonnage amounts.  He then applies various discounts.  He then multiplies the figures by 25, to account for the next 25 years that the Robkes say that they will operate the farm.
  9. [79]
    The respondents submit that the act of multiplying by 25 years is wrong because:
    1. it does not account for the net present value of money;
    2. it would result in a windfall for the Robkes – if they choose to sell the farm shortly after receiving the compensation.
  10. [80]
    I accept the Robkes’ stated intention to farm the land for the next 25 years.  I accept that they do not intend to sell their farm. 
  11. [81]
    I do not, however, accept that it is reasonable to calculate compensation by reaching a figure and then multiplying by 25 years.  That is because:
    1. that process makes no allowance for unexpected changes in circumstances.  Despite current intentions, the Robkes may experience a change in personal circumstances which causes them to alter their plans.  The farm might be affected by external events.  The sugar industry might be affected by external events; and
    2. the 25 year approach was undermined by Mr Tsakassiris saying during his cross-examination that he did not think it worth it[73] to have modified or moderated it to account for the net present value of money.  It would be an unreasonable result for the Robkes to be paid a significant sum now - which they could use to earn interest or generate income - to compensate for costs that might be incurred 20 or 25 years into the future.
  12. [82]
    It is my view that those negative impacts on the Robke farm that are not ameliorated or offset by the farming and re-arrangement costs are reasonably compensated by determining a figure and multiplying it by 8.5 years.   That is a reasonable period for producing a compensation amount for the Robkes to deal with negative impacts, that does not overcompensate because of the risk of changed circumstances.
  13. [83]
    As for the compensation sought for reduced cropping area and reduced tonnage, the issue as identified by Mr Tsakissiris is the reduction in cropping land of 4.96 hectares.  The Robkes cite a further 0.489 hectares of cropping area lost to the construction of new access roads.[74]  The total reduction of cropping area is 5.4496 hectares.[75]
  14. [84]
    Mr Thompson agreed that there is a net loss of cropping land.[76]
  15. [85]
    Mr Tsakissiris was given figures for gross profit per hectare and average tonnes per hectare grown.  He uses those and then makes adjustments for fuel tax credits.[77]  That yielded the following evidence:
  1. Economic loss from reduction of cropping area (excluding essential access roads) – 4.96ha

20 years

25 years

30 years

Value $

335,102

418,877

502,653

  1. [86]
    I do not consider it reasonable for the Robkes to receive about $16,755 per year for loss of cropping area when they will receive the land value of that lost cropping area. 
  2. [87]
    The resumption has caused, however, more land to be inundated in flood than what happened before. 
  3. [88]
    To address the flooding, I consider the 2% AEP event to be a reasonable benchmark – given that it is the most severe new impact for inundation greater than 36 hours – at 0.64 hectares.  Using the same calculations as for the reduced cropping area resulting from construction of essential access roads, that 0.64 hectares would account for lost profit of approximately $2,200 per year.  A 2% AEP flood event is unlikely to happen every year.  In my view, it is not reasonable to simply multiply $2,200 per year by 8.5 years, because that would assume that a 2% AEP flood event occurred in each of those 8.5 years.  Instead, adopting a conservative approach, a 50% discount will be applied to that exercise.  That is $2,200 multiplied by 8.5 years is $18,700.  That should then be divided by two.  The amount of compensation for loss of cropping land caused by flooding will be $9,350.  
  1. Economic loss from reduced cropping area from construction of essential access roads
  1. [89]
    The Robkes claim $41,347 from the DTMR.[78]  The respondents say the amount ought to be nil.
  2. [90]
    Mr Tsakissiris relevantly produced this table:[79]
  1. Economic loss from reduction of cropping area resulting from construction of essential access roads – 0.4896ha

20 years

25 years

30 years

Value $

33,077

41,347

49,616

  1. [91]
    In my view if the resumption caused land that used to be cropped to be sacrificed for the construction of new access roads, that is a cost to the Robkes which is attributable to disturbance. 
  2. [92]
    The construction of essential access roads causing lost cropping area is said to be worth approximately $1,654 per annum.[80]  That, multiplied by 8.5 years is a reasonable cost attributable to disturbance for that impact.  That total is $14,059.
  1. Increased costs due to additional travel
  1. [93]
    The Robkes claim $490,368 from the DTMR.   The respondents say the amount ought to be nil.
  2. [94]
    The imposition on the Robkes is an additional 1.44 kilometres in travel for each return trip from the western side of the farm to the eastern side.  That is said to cause eight additional 90 degree turns on each return trip.[81]  The Robkes operate a fleet of vehicles on the farm that includes two harvesters and eight tractors.  Mrs Robke produced calculations for the number of average annual trips per task for each vehicle in the fleet.[82] 
  3. [95]
    Mr Tsakissiris took those figures and applied an Australian Taxation Office figure of 78c/km for motor vehicle expenditure claims[83].  He applied a discount.  He came up with a figure of $19,614.75 per year.
  4. [96]
    The Robkes took care in their calculations to reduce the amounts for vehicles with a large engine capacity on the basis that they would not use the full engine capacity while travelling from one location to another.  I can see that they have, within the process they have devised, attempted to be reasonable about it.  That is not to say that I agree with their process.
  5. [97]
    Mr Thompson’s view is that the number of trips estimated by the Robkes is excessive.  In his opinion there would be less than 50% of the trips claimed.[84]  Despite that, he utilised the number of trips estimated by the Robkes to estimate additional fuel, oil and maintenance costs at Table 3 of his report.  Mr Thompson calculated these additional costs on a basis that is significantly less than the ATO figures which were relied on by Mr Tsakissiris.[85]
  6. [98]
    Ultimately, Mr Thompson calculated the additional costs as $2,422 per year, reduced to $1,211 per year if the Robkes implement efficiency measures in the way they operate the farm.  
  7. [99]
    Mr Thompson concluded that having regard to possible changes to the operational system to improve efficiencies, “the increased travel costs caused by the [resumption] is unlikely to have a material impact on the way that a hypothetical cane farmer would view this land”.[86]   That underpins the respondents’ position that the amount ought to be nil. 
  8. [100]
    The respondents criticise Mr Tsakissiris for using ATO figures for a different purpose than those figures are intended for.  During cross-examination, Mr Tsakissiris agreed that the ATO figures were not intended for this but maintained that it was reasonable to use the figures (with a 25% discount applied).[87]
  9. [101]
    During Mr Thompson’s cross-examination, the possibility of constructing a shed on the eastern side of the farm arose.  The idea was that vehicles or machinery could be stored in a shed (to protect them from vandalism or theft) and that might reduce the number of trips back and forth.  Mr Thompson seemed to agree with the idea.  That said, there is no evidence about how much a shed might cost or how it would affect the number of trips.  A shed seemed to be a good idea, but I have no evidentiary basis to order that costs attributable to disturbance ought to cover such a shed.
  10. [102]
    My conclusions about the additional travel issue are:
    1. the Robkes are experiencing and will experience into the future, increased costs because of the more circuitous route they must take to navigate their own farm. 
    2. as to the disagreement about the number of trips per vehicle per year, I prefer the evidence advanced by the Robkes.  No satisfactory explanation is offered as to why I should doubt that and adopt a figure less than 50% of that.
    3. I do not consider that the ATO figure of 72 cents per kilometre is an applicable metric for the calculation of compensation. 
    4. I do not agree with Mr Thompson that the efficiency improvements available to the Robkes must be assumed to eliminate additional travel costs.  For example, Mr Thompson says that nine tractors is too many and that the farm could be operated with only four.  He also says the Robkes could use contractors for major operations and rationalising operational equipment.  Or that they could minimise trips from one side of the farm to the other by leaving equipment in place and coming back to it.  In my view, the Robkes know their farming operation and will continue to run it as efficiently as possible.  While they have a duty to mitigate their losses, they do not have an obligation to fundamentally change the way that they farm the land.  They may wish to implement some of Mr Thompson’s recommendations, but that is their choice and it is not reasonable to decline to award costs attributable to disturbance on the basis that they must make particular changes and that those changes will certainly succeed in reducing cost.
    5. if the ATO figures are not an appropriate tool, then Mr Thompson’s Table 3[88] provides the starting point for assessing the additional costs.  That produces a figure of $2,422 per annum. 
    6. for the reasons outlined above, in my view it is reasonable to multiply that figure by 8.5 years to reach a compensation figure. 
    7. the total amount of compensation for this item is therefore $20,587.
  1. Increased costs due to weed introduction
  1. [103]
    The Robkes claim $193,922 from the DTMR and $34,221 from Mackay Sugar.[89]  The respondents say that “a ‘one off’ disturbance cost of $3,600 ought be granted for weed management”.[90]
  2. [104]
    The Robkes’ figures are based on a capitalisation of future costs over 25 years.  For the reasons outlined above, I do not accept that approach.  I consider it reasonable to reach a figure and multiply by 8.5 years instead.
  3. [105]
    Mr Tsakissiris is the source of the Robkes’ evidence on this item.  His report says:[91]

… I have been provided with updated costing since the original Robke calculations (Annexure 4.4).  These new calculations are included at (Annexure 11).  The calculations are reasonable and include third party evidence of costings of poisons necessary.  Annual extra costing is calculated as $9,125.73.

  1. [106]
    Mr Faulker identified that if weed growth gets out of control, it can become a long term, expensive problem.[92]He also said that any weed management regime that the Robkes used to employ, will have to increase.[93]  Mr Thompson agreed that it can become a long term problem if it is not brought promptly under control.[94]
  2. [107]
    Mr Thompson appeared to accept that some of the weeds that have been introduced have additional specific herbicide requirements (that is, types of herbicide that the Robkes were not purchasing before the resumption).[95]
  3. [108]
    Mr Thompson considers the annual cost provided by Mr Tsakissiris to be too high.  He told the Court that three weed eradication sprays per year for three years would resolve the problem.[96]
  4. [109]
    The Robkes disagreed with Mr Thompson’s assessment.  Mrs Robke’s cross-examination of Mr Thompson, while it carefully referred to chemical costs and the costs of labour to spray for weeds, was ultimately inconclusive in reconciling the differences between her proposed weed treatment measures and Mr Thompson’s opinions. 
  5. [110]
    I accept that the resumption created a weed problem for the Robkes.  The weeds have not been properly controlled on DTMR land and that has caused weeds to migrate on to the Robke land.  That problem may be able to be resolved with a three year eradication program, but that is not a certainty.  The Robkes disagree with Mr Thompson’s assessment.  Mr Thompson’s approach is for too minimal an intervention.  I consider it reasonable that the Robkes should have $4,000 per year.  That applies a discount to the Robkes’ calculations on the basis that all of the treatments described there may not be necessary to bring the problem under control. 
  6. [111]
    That will be multiplied by 8.5 years to reach an amount of $34,000 for this item.[97]
  1. Increased costs due to vermin
  1. [112]
    The Robkes claim $53,125 from the DTMR and $9,375 from Mackay Sugar.[98]  The respondents say the amount ought to be nil.
  2. [113]
    The same conceptual approach applies to this item as applies to the weed introduction item above. 
  3. [114]
    Mr Tsakissiris says on this item:

…It was stated in the Farming Operations report of Ian Faulkner dated 17th June 2022 (Annexure 15) that there will be “increase to the vermin population and damage to sugarcane.  Damage to sugarcane results in significant loss to both sugar content and tonnes of cane”.  While no costing is stated in the report, the figure of $2,500 pa used in the Robke report seems reasonable, if not on the conservative side.

  1. [115]
    Mr Thompson considered $2,500 per year to be too high. He told the Court that vermin control should have already been occurring in the general management of the farm. He said that there should be no extra costs for vermin control because there should be no increase in the area of land affected by vermin.[99]
  2. [116]
    My view is that the resumption has made vermin control more challenging and expensive for the Robkes.  The verge of the road (land controlled by the DTMR) provides opportunities for vermin to nest and then cross over on to the Robkes land.  The increase in weeds provides a haven for and attracts more vermin. The problem can be treated, as with the weeds.  Given its serious consequences for damage to the crop, I consider it reasonable that the Robkes should be compensated in the amount of $2,500 per year for 8.5 years.
  3. [117]
    That is a compensation amount of $21,250 for this item.[100]
  1. Increased costs in road maintenance
  1. [118]
    The Robkes claim $375,000 from the DTMR.[101]  The respondents say the amount ought to be nil. 
  2. [119]
    This item is related to the ‘farming and rearrangement costs, yet to be incurred’ item discussed above.  The Vassallo Constructions quote of 27 June 2024 includes notes[102] that say that maintenance costs for the constructed cement stabilised base headlands would be approximately $15,000 per year.  The Robkes claim that $15,000 per year for 25 years.
  3. [120]
    Above, I have concluded that the cement stabilised headlands are not a reasonable cost attributable to disturbance.  Based on that conclusion, the $15,000 per year would not be required.
  4. [121]
    Mr Thompson identifies the cost of maintaining grass headlands.  He says that the new headlands and associated drains (of about 2.2 hectares) would require slashing each crop year.  He says it would cost $540 per year.[103] 
  5. [122]
    Absent any other evidence about the cost of maintaining the grass headlands, I consider it reasonable to utilise the $540 per year figure.  That ought to be multiplied by 8.5 years to reach an amount of $4,590 for this item.
  1. Economic loss from paddock 8-1 not being cultivated
  1. [123]
    The Robkes claim $42,042 from the DTMR.[104]  The respondents say the amount ought to be nil.
  2. [124]
    The Robkes say that they have been unable to cultivate paddock 8-1 in 2024/2025 because of uncertainty about road and headland construction.  The respondents submit that the evidence from Mr Paul Robke as to why the paddock has not been cropped was difficult to follow and appeared to be based on a desire to “sort out what we’re doing with drainage”.  The respondents produced evidence from Mr Daly about how a drain could have been constructed to allow the paddock to be cultivated[105].
  3. [125]
    Mr Thompson’s view was that there was no practical reason for Robkes’ to have withheld from cropping paddock 8-1.[106] When asked whether it was reasonable for the Robkes not to have cultivated the paddock, he said that work had been undertaken elsewhere (on the farm) without the benefit of the recommended headlands and drains.[107]
  4. [126]
    The Robkes have a duty to mitigate their losses.[108] 
  5. [127]
    That said, I accept Mr Paul Robke’s evidence that the uncertainty of this litigation and the uncertainty of the drainage solution caused enough uncertainty about paddock 8-1 to support the decision not to cultivate it for 2024/25.  Even if the basis for that decision turns out, in hindsight, to have been unwise – in my view it was not an unreasonable decision to make at the time, in the context in which it was made.
  6. [128]
    The challenge, then, is assessing an amount of compensation for that on the evidence.  
  7. [129]
    The amount claimed by the Robkes relies on profit per hectare figures that are too optimistic.  It also does not account for whether something could have been done with paddock 8-1, short of cultivation of the whole of it, to generate some income from it. 
  8. [130]
    I consider 30% of what the Robkes have claimed for this item to be a reasonable figure – imposing a significant discount for the overly optimistic potential return for that paddock and the missed opportunity to use the paddock in some other way.  The amount for this item is assessed at $12,612.60.
  1. Loss of personal wages/income
  1. [131]
    The Robkes claim $413,816 in lost earnings due to an inability to work externally.  They say that Mrs Robke was unable to work as a chartered accountant between 1 July 2015 and 31 December 2023 because she had to manage the Ring Road resumption process.[109] 
  2. [132]
    The respondents say that no lost wages or salaries are claimable.  They have an alternative argument – that even if such an item was claimable, no compensation ought to be awarded here because the facts do not support the notion that Mrs Robke was so occupied with preparing the claims that she was unable to work.
  3. [133]
    As to the first argument – that no lost wages or salaries are claimable – the respondents accepted that an owner’s time is compensable.[110] That appears to be the effect of the Land Appeal Court decision in Heavey Lex No. 64 Pty Ltd v Chief Executive, Department of Transport.[111]  That decision pre-dated the introduction of section 20(5)(g) of the ALA.  Section 20(5)(g) reinforces the conclusion that an owner’s time is compensable, it if meets the requirements for costs attributable to disturbance.
  4. [134]
    As to the second argument – that the evidence in this case does not support compensation for loss of personal wages/income – my conclusions are:
  1. (a)
    when giving her evidence, Mrs Robke clearly conveyed the significant stress experienced in dealing with the DTMR and Mackay Sugar, being involved in the preparation of the claim for compensation and preparing for Court.  I accept that for the Robkes, each of those tasks has been genuinely time consuming and stressful. 
  1. (b)
    the figure of $413,816.89 was calculated by an accountant, Mr Ian Fanning, who produced a letter dated 11 January 2024.[112] 
  1. (c)
    Mrs Robke’s most recent paid employment (outside of supporting the farming operation) has been:
  1. (i)
    a casual role on a fixed term contract, doing internal audit and corporate work for a transport company.  That role involved 20 – 30 hours of work per week, depending on the demands of the company.  It concluded in 2015.
  1. (ii)
    since May 2021, for a not-for profit organisation which allows Mrs Robke to pause/stop working for weeks or months when her attention has been diverted by the compensation claim.
  1. (d)
    for a period, the Robkes had a solicitor, and senior and junior counsel engaged.  Mrs Robke’s evidence was that being represented by a solicitor did not reduce her workload.  It simply meant that she had to explain more information to other people, get feedback and assess documents.
  1. (e)
    Mrs Robke’s evidence did not seem to be that she was occupied every working hour of every working day on the claim.  It seemed to be that the uncertain demands of managing the resumption process meant that she could not work regularly because she expected or understand that employers would not tolerate her saying that she was only available for, say, three months, or suddenly not available for three weeks.[113]
  1. [135]
    The difficulty is that it is not clear how the management of the claims consumed so much time as to prevent Mrs Robke from working, even part-time.  I am not able to reach conclusions about the amount of time that was occupied.  I am not able to understand the reasonableness of it.  Nor is there evidence about any attempts by Mrs Robke to find part-time or flexible work.  Or attempts to find an employer who might tolerate pauses in the work, so that Mrs Robke could focus on the compensation claim.
  2. [136]
    While the evidence shows the genuine effort and stress involved for the Robkes (particularly Mrs Robke) in managing the resumption process, I am unable to conclude that it completely prevented Mrs Robke from being able to work for a period of six years.  
  3. [137]
    The result is that the claim of $413,816 for loss of earnings is unsuccessful.
  1. Damage to the house and the worker’s cottage
  1. [138]
    The Robkes claim:
    1. $50,000 for structural damage to the main house that they say was caused by the construction of the ring road; and
    2. $158,000 for raising and improving the worker’s cottage on the basis that it will be negatively affected by an increased flood level caused by the resumption.[114]
  2. [139]
    The respondents say that the amount ought to be nil.
  3. [140]
    The Robkes rely on evidence from Mrs Robke and Mr Maloney (a builder).  The respondents rely on evidence from Mr Pinkney (a civil engineer).  Elements of the flooding evidence are also relevant to the worker’s cottage.
  1. The main house
  1. [141]
    The Robkes say that their house has suffered damage.  They particularly point to cracking in the walls and damage to the grouting in the bathrooms.  The Robkes produced a quote from a builder, Mr Maloney, detailing what it would cost to repair the defects. Mr Maloney quoted $50,000 for a complete rebuild of an ensuite, plastering of cracks in plasterboard throughout the house, repairs to the skirting boards and architraves in all rooms, and to repaint the north east section of the house.[115]
  2. [142]
    Mrs Robke carefully and methodically pointed out each of the defects during the site inspection.
  3. [143]
    The respondents say that the deterioration of the house is what occurs with any house, naturally, over time.  The respondents rely on the evidence of a civil engineer, Mr Pinkney.  He attached two reports prepared by Site Environmental and Remediation Services Pty Ltd to his affidavit.  The first is a dilapidation report about the dwelling from December 2017 (before the Mackay Ring Road was constructed).  The second is a dilapidation report about the dwelling from December 2021 (after the construction).  The 2021 report notes the differences observed between the two inspections.
  4. [144]
    Mr Pinkney observed that the closest construction works for the road were approximately 460 metres from the dwelling.  The closest construction works for the cane railway relocation were approximately 380 metres from the dwelling.  He described the nature of the works that occurred at those points.  He concluded that it was unlikely that the defects identified for the first time in the 2021 dilapidation report can be attributed to the road construction because “vibration energy dissipates based upon an inverse square law, in that it rapidly dissipates with distance” and “it is improbable that any normal construction or equipment associated with the project could cause vibration with such energy to cause damage to the dwelling”.[116]
  5. [145]
    Mr Maloney offered his opinions about the damage within his quote.  He considered that the damage was caused by vibration movement not standard general movement.[117]  Mr Maloney attempted to assist the Court but on some details was unsure[118] or deferred to a structural engineer.[119]
  6. [146]
    Comparing the 2017 dilapidation report and the 2021 dilapidation report shows that 38 new items of damage were recorded as having happened in that relatively short period.  The Robkes say that it should be inferred that the Ring Road construction caused that new damage.  That was put to Mr Pinkney in cross-examination.  He disagreed.  He told the Court:[120]

… the report undertaken in 2017 shows normal wear and tear style damage that’s evident in … any house, if you look in it, that occurs over the period of time from normal consolidation.  The damage has continued - the normal wear and tear style damage has continued – um – just with the age – ageing of any structure, and that’s evident in the later report.  There’s nothing there which I could see which was – um --- … unusual.  

  1. [147]
    I prefer Mr Pinkney’s evidence.  Damage may have occurred to the house between 2017 and 2021 but it is unsound to rely on the coincidence of the Ring Road construction to conclude that that caused the damage to the house.  Mr Maloney did not explain the basis for his conclusion that the damage was caused by vibration and not “standard general movement”.  Mr Pinkey utilised his expertise to conclude that it is improbable that vibration was the cause.  He offered the more direct view of the source of the damage.[121]
  2. [148]
    There ought to be no compensation for damage to the main house.
  1. The worker’s cottage
  1. [149]
    The worker’s cottage is north of the main house. It is unoccupied and is in a basic or dilapidated state.[122]  Independent of the resumption, the Robkes planned to make improvements to it, at a value of $120,000.  The Robkes obtained a quotation from Mr Maloney for the demolition of the back of the cottage and the kitchen/bathroom and the rebuilding of those areas at a raised floor height.  The quotation is for $278,000 (including GST).  The Robkes subtract the planned work of $120,000 from that $278,000 to reach the figure that they now claim from the DTMR.
  2. [150]
    The Robkes say the entire cottage needs to be raised due to the increased risks of flooding impacts. Once the cottage is raised, they say the rear of the it will need to be demolished and rebuilt, including the installation of a new bathroom, back verandah, and kitchen. Mr Maloney quoted the Robkes for reinstallation of the existing kitchen however, in his oral evidence, he adjusted that to the installation of a new kitchen.[123] In total, Mr Maloney said the works would take six months, and would result in a significant improvement to the property.[124]
  3. [151]
    Mr Daly’s evidence addressed the change in flooding impacts on the worker’s cottage.  The results are set out in Tables 9-2, 9-3 and 9-4 of his report.[125]  The effect of his conclusions are that the lower two levels of the cottage flooded before the resumption. Anticipated flood levels are only very slightly higher after the resumption.  The difference is a 0.012 metres (i.e. 12 millimetres) increase for the 1% AEP event and a 0.022 metres (i.e. 22 millimetres) increase for the 0.20% AEP event. 
  4. [152]
    While the evidence shows worse flooding caused by the resumption, the cottage flooded on both the before and the after scenarios.  The worsening is trivial.  It is not reasonable to attribute the need to raise and re-build the cottage to the resumption. 
  5. [153]
    There ought to be no compensation for the flood impacts on the worker’s cottage.
  1. Legal and other consultancy costs
  1. [154]
    The Robkes claim legal and consultancy costs.[126]
  2. [155]
    The respondents quantify those claims as being:[127]
    1. $118,058 from the DTMR for legal and other consultancy costs already incurred;
    2. $11,686 from the DTMR for legal and other consultancy costs yet to be incurred;
    3. $14,748 from Mackay Sugar for legal, valuation and other costs.
  3. [156]
    The respondents’ position in response to those claims is (adopting the numbering from the paragraph above):
    1. the appropriate figure is $40,000;
    2. the figure ought to be nil, but could be the subject of a future application for costs;
    3. the figure ought to be nil because it is included in the first item.
  4. [157]
    There is evidence that the Robkes paid their solicitor $94,024 between 29 May 2014 and 24 September 2020. 
  5. [158]
    The claim was served on the resuming authorities on 9 July 2022.[128]
  6. [159]
    Annexure A to the Outline of Argument for the Respondents sets out the respondents’ arguments with respect to the legal and consultancy costs.  The arguments are:
    1. a large portion of the narrations in the solicitors’ invoices are general in nature and do not provide sufficient detail to ascertain the scope of work undertaken nor whether that work reasonably related to the preparation of the claims for compensation;
    2. work carried out by the solicitor prior to the date of the Notice of Intention to Resume is not reasonable;
    3. worked carried out by the solicitor challenging the decision to issue a Notice of Intention to Resume does not reasonably relate to preparation of the claim for compensation;
    4. some of the work carried out by the solicitor does not reasonably relate to preparation of the claim;
    5. work carried out by the solicitor to retain senior and junior counsel and involve them in the preparation and filing of the claims was not reasonable.  Further, it was not reasonable or necessary for the solicitor to travel to Brisbane to meet with counsel;
    6. work carried out by the solicitor in relation to negotiating easements under the SIA and communicating with Mackay Sugar has already been compensated;
    7. work carried out by the solicitor after the claim for compensation was lodged on 16 December 2019 is not compensable.
  7. [160]
    The Land Appeal Court offered guidance about assessing the reasonableness of costs in Heavey Lex No. 64.[129]  With reference to what that Court said at [74], my conclusions about each of the arguments are (adopting the numbering from the paragraph above):
    1. some of the time entries in the solicitor’s invoices are general, but that does not mean that those entries did not represent real work that advanced the claim.  A certain amount of background work is required to compile documents for counsel or to send an update to the client that may not be work on the draft claim for compensation – but the claim for compensation cannot be finalised and progressed without that work being done.  My review of the time entries does not reveal entries where an inordinate amount of time has been put down for one of those tasks.  The steps set out in the time entries are what is involved in coordinating input from numerous people and preparing a claim. 
    2. the work carried out prior to the Notice of Intention to Resume was reasonable.  It was only $2,053.32.  The Robkes appear to have engaged a solicitor to help them to understand what was about to unfold.  That is a reasonable step to take;
    3. I agree that costs incurred in challenging the issue of the Notice of Intention to Resume were costs of endeavouring to stop the resumption, rather than costs of preparing the claim.  This category totals $8,158.23 and is not compensable;
    4. the respondents have identified particular time entries relating to a right to information request, general case law research, correspondence with the Council and correspondence in relation to an advance against compensation.  I have reviewed those time entries and consider that half of them are reasonably related to the preparation of the claim.  This category totals $20,818.33, of which 50% ought to be paid as compensation.
    5. it was reasonable to engage senior and junior counsel and involve them in the preparation and filing of claims.  Travel to Brisbane to confer with counsel is reasonable.  To involve counsel improves the claim, not just for the Robkes but for the respondents to respond to and for the Court.  Attending a conference is an essential part of involving counsel in the preparation of the claim. That amounts to $4,299.77 and ought to be paid as costs attributable to disturbance;
    6. the claim for compensation for expenses involving Mackay Sugar is in a different category from the claim involving the DTMR.  In August 2019, Mackay Sugar paid the Robkes $20,000 for the administrative costs associated with the grant of the two cane railway easements.  The Robkes say that they spent $34,748, so they are $14,748 short.  There is no evidence about how the payment of $20,000 was calculated or whether there were any conditions attached to the making of that payment.  Mrs Robke told the Court that it was a repayment of $20,000, of $34,000 charged by her solicitor.[130]   The respondents say that the $14,748 is already within the claim for legal costs discussed above.  I do not have confidence in separately awarding the $14,478 because I do not understand how it arose or what it was for.  For this item against Mackay Sugar, the amount ought to be nil.
  8. [161]
    I have been unable to reconcile the difference between the applicants’ evidence of the costs attributable to disturbance in this category and the respondents’ position on that breakdown in Annexure A to their closing submissions.[131] The total figure referred to by both for costs attributable to disturbance – $118,058 – is the same. How they each arrive at that figure is different.
  9. [162]
    The difference between the $94,024 paid to the solicitor and the $118,058 claimed is $24,034 paid to consultants.[132]  The respondents submit that “the mere provision of invoices is insufficient to establish both the nature of the work, let alone its reasonableness, as a matter of fairness, the respondents … accept an amount for other professional fees of $5,500 (excl GST)”.  While the intention to offer something is sound, it is not clear on the respondents’ case how the $24,034 should become $5,500. There are $10,899 in valuation costs and $2,200 in hydrologist costs that were incurred during the preparation of the claim. Those are reasonable and ought to be recoverable.
  10. [163]
    Adding together the amounts that I have determined above to be costs attributable to disturbance, the total amount for legal and other consultancy costs is $29,861.26.
  1. Dealing with the two claims together
  1. [164]
    There are two respondents and two statutory schemes.  The two respondents have had common legal representation since the claims were filed.  They urged a global approach to the assessment of compensation – not separate determinations for each claim[133].  The evidence advanced by the respondents did not clearly differentiate which claim it related to.
  2. [165]
    There is no principled way on the evidence to attribute proportions or shares of the compensation to the DTMR as opposed to Mackay Sugar.  I accept the global approach urged by the respondents.
  1. Assessment of compensation
  1. [166]
    In my view, the compensation for the resumption ought to be:[134]

Disturbance costs

Construction disturbance (2017 – 2020)

$220,112

Farming and rearrangement – already incurred

$176,370

Farming and rearrangements – yet to be incurred

$220,736

Legal and other consultancy costs – already incurred

$29,861.26

Legal and other consultancy costs – yet to be incurred

Can be the subject of an application for costs.

Legal and other valuation costs relating to Mackay Sugar – already incurred

nil

Economic loss to business

Reduced cropping area excluding essential access roads (4.96 ha)

$9,350

Reduced cropping area from construction of essential access roads (0.4896 ha)

$14,059

Reduced net profit on balance of land from reduced tonnage

nil – assessed above with item 7.

Increased costs due to additional travel

$20,587

Increased costs due to weed introduction

$34,000

Increased costs due to vermin

$21,250

Increased costs in road maintenance

$4,590

Economic loss from paddock 8-1 not being cultivated

$12,612.60

Economic loss caused by loss of personal wages income of Mrs Kerrie Robke

Loss of personal wages/income

nil

Impacts to dwellings

Reduction in value of the main house

nil

Damage to dwelling caused by construction (worker’s cottage)

nil

Impacts caused by increase flood levels to workers cottage

nil

Land value

Value of the land taken

$215,000

Total:

$978,527.86

  1. Conclusion
  1. [167]
    The resumption has had a significant negative impact on the Robkes.  The resumption process has been time consuming and stressful for them.  The taking of the land and the construction of the road has made farming their land more difficult.
  2. [168]
    They have meticulously kept photographs and notes of the damage.  They have prepared detailed calculations of what they say are impacts – including, fairly, discounting their own figures where appropriate.
  3. [169]
    The respondents have been appropriately generous in their approach – offering up solutions to road/headland problems and conceding some costs attributable to disturbance.   Ultimately, though, I have concluded that an amount higher than the respondents’ figure of $875,818 is appropriate. 
  4. [170]
    The evidence supports an assessment of compensation as set out in paragraph [166] above. 
  1. Orders
  1. [171]
    I order:
  1. (a)
    Compensation is determined in the sum of Nine Hundred and Seventy-Eight Thousand, Five Hundred and Twenty Seven Dollars and Eighty Six Cents ($978,527.86).
  1. (b)
    By 4pm on 28 February 2025, the parties are to file and serve written submissions about:
  1. (i)
    how to allocate a proportion of that compensation to be paid by the DTMR and a proportion to be paid by Mackay Sugar;
  1. (ii)
    the calculation of interest on the compensation amount; and
  1. (iii)
    costs. 

Footnotes

[1]  Pre-resumption, the farm had been severed by Calrossie Road, which ran north-south adjoining the strip of land that was ultimately resumed.  Calrossie Road was, however, unformed and the Robkes enjoyed rights pursuant to a road licence to allow the cropping of that land as well as unimpeded access across it.

[2]  Exhibit 5, Summary of Applicants’ Claims and Respondents’ Assessment (as amended at hearing: Transcript 1-56 – 1-57) (Exhibit 5); Exhibit 6, List of issues not in dispute (Exhibit 6).

[3]  Which, based on the evidence of Mr Tsakissiris, ought to be adjusted to be $4,016,964.

[4]  Exhibit 5, page 5.

[5]  Exhibit 2, Bundle of Respondents’ Evidence, Volume 1, page 394, Statement of Evidence of Gregory Williams, paragraph 7.4.1.

[6]  Exhibit 2, Volume 1, page 371, Statement of Evidence of Gregory Williams, paragraph 1.1.5(e).

[7]  Exhibit 2.1, page 42, Statement of Evidence of John Gaskell

[8]  Exhibit 2, Volume 1, page 375, Statement of Evidence of Gregory Williams, paragraph 3.6.1.

[9]  Exhibit 2, Volume 1, page 378, Statement of Evidence of Gregory Williams, paragraph 3.12.2.

[10]  That is most of the 3.945 hectare total, which is also comprised of the Mackay Sugar easements.

[11]  Exhibit 2, Volume 1, page 381, Statement of Evidence of Gregory Williams, paragraph 4.1.5.

[12]  Exhibit 2, Volume 1, page 385, Statement of Evidence of Gregory Williams, paragraph 6.3.4.

[13]  See also Lenz Nominees Pty Ltd v Commissioner of Main Roads [2012] WASC 6.

[14] Turner v Minister for Public Instruction (1956) 95 CLR 245 at 264.

[15] Spencer v The Commonwealth (1907) 5 CLR 418 at 432 per Griffith CJ, 436 – 437 per Barton J, and 440 – 441 per Isaacs J.

[16] March v City of Frankston (No 1) [1969] VR 350 at 361.  Applied in Queensland in a different context (that is, valuation of land): PT Ltd v Department of Natural Resources and Mines [2007] QLC 46 at [27]

[17] Commissioner of Succession Duties (SA) v Executor Trustee & Agency Co of SA Ltd (1947) 74 CLR 358 at 374.

[18] Sydney Water Corp v Caruso (2009) 170 LGERA 298 per Allsop P, Sackville AJA at 300.

[19]  At [74].

[20]  (2001) 22 QLCR 231 at 262 – 264.

[21]  [2015] QLAC 3 at [104]–[123].

[22] Inglis & Ors v State of Queensland (No. 2); State of Queensland v Inglis & Ors [2015] QLAC 3 at [119].

[23] Nevis Pty Ltd v Chief Executive, Department of Main Roads (2001) 22 QLCR 231 at 262; Heavy Lex No. 64 Pty Ltd v Chief Executive, Department of Transport (2001) 22 QLCR 177 at [74].

[24] Heavy Lex No. 64 Pty Ltd v Chief Executive, Department of Transport (2001) 22 QLCR 177 at [34].

[25] Ostroco v Department of Transport and Main Roads (2013) 197 LGERA 163 at 179.

[26]  Exhibit 5.

[27]  Exhibit 6.

[28]  Exhibit 9.

[29]  I have not found it necessary to resolve every question set out there.

[30]  [1981] QLCR 30.

[31]  [1981] QLCR 37.

[32]  [1981] QLCR 30 at 34.

[33]  [1981] QLCR 37 at 44.

[34]  Exhibit 16, Outline of Argument for the Respondents (Respondents’ Outline), page 15, paragraph 43.

[35]  (2001) 22 QLCR 177 at 184.

[36]  (1999) 167 ALR 575 at 655.

[37]  Exhibit 5, items 1 and 2.

[38]  Exhibit 6, paragraph 36.

[39]  Mrs Robke was invited to cross-examine Mr Williams about any competing valuation approach: Transcript 2-140, line 31 to 2-141, line 1; Transcript 3-8, lines 8-22.  Mrs Robke was also invited to make submissions about the respondents’ valuation evidence: Transcript 4-5, line 17 to 4-6, line 21.

[40]  Exhibit 2, Volume 1, page 395, Statement of Evidence of Gregory Williams, paragraph 7.5.1.

[41]  Exhibit 2, Volume 1, page 87

[42]  Exhibit 2, Volume 1, page 154

[43]  Exhibit 2, Volume 1, pages 146 – 147, Report of Alister Daly dated 29 August 2024.

[44]  Exhibit 2, Volume 1, pages 328 – 329, Report of William Thompson, paragraph 3.4.

[45]  Exhibit 2, Volume 1, page 133, Report of William Thompson.

[46]  Exhibit 2, Volume 1, page 328, Report of William Thompson, paragraph 3.2.

[47]  Transcript 2-74, lines 6 – 20.

[48]  Exhibit 7, Applicants’ Bundle of Evidence (Exhibit 7), pages 315 – 316.

[49]  Transcript 2-94, lines 20 – 21.

[50]  Transcript 2-95, lines 5 – 6.

[51]  Transcript 2-96, lines 24 – 25.

[52]  Exhibit 2, Volume 1, page 341, Annexure B to Report of William Thompson.

[53]  Transcript 1-109, lines 26 – 30.

[54]  Transcript 1-109, line 30.

[55]  Exhibit 2, Volume 1, page 341, Annexure B to Report of William Thompson.

[56]  Exhibit 2, Volume 1, page 326 – 327.

[57]  Exhibit 7, pages 65 and 148.

[58]  Transcript 1-99, lines 10 – 16.

[59]  Transcript 1-100, line 1.

[60]  Transcript 1-99, line 18.

[61]  Respondent’s Outline, paragraphs 33 – 37.

[62] Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [64]–[82].

[63]  Exhibit 7A, Line 1.

[64]  Transcript 2-10, lines 1 – 37 and page 2-11, line 39 to 2-12, line 3.

[65]  Exhibit 7, page 22, Amended Statement of Claim of Kerrie Marie Robke.

[66]  Exhibit 7, pages 79 and 80, Report of Paul Tsakissiris.

[67] Townsville City Council v Chief Executive, Department of Main Roads [2006] 1 Qd R 77 at 94 and Woolworths Ltd v Director of Liquor Licensing (2013) 45 WAR 446 at 463.

[68] Castel Electronics v Toshiba Singapore (2011) 192 FCR 445 at [202] to [204]; Yara Pilbara Fertilisers Pty Ltd v Oswal [2016] VSC 440 at [81] to [129], in particular [88]. 

[69]  Exhibit 5, items 2 and 3.

[70]  Wells J in De leso v Commissioner of Highways [No 2] (1982) 30 SASR 289 describes a “headland”, in a separate compulsory acquisition case, as a strip of retained land “sufficiently compacted to allow the movement of agricultural machines and transport on it”: at 291.

[71]  Exhibit 5, items 2 and 3.

[72]  Transcript 2-115, lines 22 – 36, 2-119, line 44 to 2-120, line 2; Exhibit 2, Volume 1, page 327, page 330, paragraph 3.10, page 332, paragraph 3.14, Report of William Thompson.

[73]  Transcript 2-38, lines 6 – 9.

[74]  Exhibit 7, page 31.

[75]  The statement of Mr Paul Robke (Exhibit 7, page 307) goes into detail about loss of cropping area.  Mr Robke’s estimation of areas lost is not the same as what is described by Mr Tsakissiris.  Mr Robke’s statement provides many helpful photographs and descriptions.  That said, I have proceeded on the basis of Mr Tsakissiris’ evidence because he produces the economic loss figures that the Robkes ultimately rely on.

[76]  Exhibit 2, Volume 1, page 330

[77]  Exhibit 7, page 31.

[78]  Exhibit 5, item 8.

[79]  Exhibit 7, page 32

[80]  Based on Mr Tsakassiris’s table, set out in paragraph [85] above.

[81]  Exhibit 7, page 127.

[82]  Exhibit 7, page 128.

[83]  Exhibit 7, page 34

[84]  Exhibit 2, Volume 1, page 332, Report of William Thompson, paragraph 3.15.

[85]  The ATO figures provide a cost in cents per kilometre for each classification of machinery.

[86]  Exhibit 2, Volume 1, page 334, Report of William Thompson, Paragraph 3.23.

[87]  Transcript 2-24 to 2-44.

[88]  Referred to in paragraph [97] above

[89]  Exhibit 5, item 11.

[90]  Respondent’s Outline, paragraph 83(c) on page 26.

[91]  Exhibit 7, page 34, paragraph 2.

[92]  Exhibit 7, pages 220 – 222, Report of Ian Faulkner dated 17 June 2022.

[93]  Transcript 1-127, lines 20 – 25.

[94]  Transcript 2-116, lines 30 – 39.

[95]  Transcript 2-131, lines 1-4.

[96]  Exhibit 2, Volume 1, page 334, Report of William Thompson, Paragraph 3.27.

[97]  Exhibit 5, item 11.

[98]  Exhibit 5, item 12.

[99]  Exhibit 2, Volume 1, page 334, Report of William Thompson, Paragraph 3.28.

[100]  Exhibit 5, item 12.

[101]  Exhibit 5, item 13.

[102]  Exhibit 7, page 149.

[103]  Exhibit 2, Volume 1, page 334, Report of William Thompson.

[104]  Exhibit 5, item 14.

[105]  Transcript 2-77

[106]  Transcript 2-114, lines 30 – 32.

[107]  Exhibit 2, Volume 1, page 335, Report of William Thompson, Paragraph 3.32.

[108] Director of Buildings v Shun Fung Ltd [1995] 2 AC 111 at 126. This authority was cited with approval by the Land Appeal Court in Ostroco v Department of Transport and Main Roads (2013) 197 LGERA 163 at 179.

[109]  Exhibit 7, page 12, Amended Statement of Claim of Kerrie Robke dated 12 July 2024, paragraph 1.15.

[110] Lowry v Coordinator General [2012] QLC 26 at [114]–[117].

[111]  (2001) 22 QCLR 177 at [31]–[55]; Nevis Pty Ltd v Chief Executive, Department of Main Roads (2001) 22 QLCR 231 at 266.

[112]  Mr Fanning was not called as a witness.  His letter was initially objected to and excluded.  Mrs Robke later, without objection, adopted the contents of Mr Fanning’s letter as part of her own evidence: Transcript 2-15 – 2-16.

[113]  Transcript 2-28, lines 3 – 6.

[114]  Exhibit 5, items 17 and 18.

[115]  Exhibit 7, page 378, Building Report of J R Maloney Builders.

[116]  Exhibit 2, Volume 2, page 412, Affidavit of Daniel Pinkney sworn 18 September 2024, paragraph 15.

[117]  Exhibit 7, page 376.

[118]  Transcript 1-88, lines 18-19

[119]  Transcript 1-88, line 21

[120]  Transcript 2-66, lines 5-14.

[121]  Transcript 2-66, lines 30 – 36; Transcript 2-67, lines 39 – 46; Transcript 2-68, lines 11 – 23.

[122]  See photos at Exhibit 2, Volume 1, page 144, Affidavit of Alister Daly affirmed 29 August 2024.

[123]  Transcript 1-91, lines 3 – 6. cf. Exhibit 7, pages 384 and 386, Annexure JM-1 to Affidavit of John Maloney sworn 8 July 2024.

[124]  Transcript 1-91, line 44.

[125]  Exhibit 2, Volume 1, page 143, Affidavit of Alister Daly affirmed 29 August 2024.

[126]  A breakdown of the amounts claimed by the Robkes is found at Exhibit 7, pages 151 – 152, Annexure 13.71 to Report of Paul Tsakissiris.

[127]  Exhibit 5, lines 4 – 6.

[128]  That being the cut off date for professional fees being assessed as compensation.  After that date, professional fees fall to be considered as costs of the action: State of Queensland v Pajares [2004] QLAC 59 at [150]–[151].

[129]  (2001) 22 QLCR 177 at [59] to [74].

[130]  Transcript 2-27

[131]  cf. Exhibit 7, pages 151 – 152, Annexure 13.71 to Report of Paul Tsakissiris and Respondents’ Outline, Annexure A.

[132]  A breakdown of the amounts claimed by the Robkes is found at Exhibit 7, pages 151 – 152, Annexure 13.71 to report of Paul Tsakissiris.

[133]  The respondents suggest an 80/20 split in Ex. 16, paragraph 86 on page 26.  I am not confident that a split of that kind is applicable to each of the items claimed.

[134]  Utilising the headings and items set out in Exhibit 5, in the order in which they appear in that document

Close

Editorial Notes

  • Published Case Name:

    Robke & Anor v Chief Executive, Department of Transport and Main Roads; Robke & Anor v Mackay Sugar Ltd

  • Shortened Case Name:

    Robke v Chief Executive, Department of Transport and Main Roads; Robke & Anor v Mackay Sugar Ltd

  • MNC:

    [2025] QLC 3

  • Court:

    QLC

  • Judge(s):

    ND Loos

  • Date:

    30 Jan 2025

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
Boland v Yates Property Corp Pty Ltd (1999) 167 ALR 575
2 citations
Jump To
Cite 1 - (1999) 167 ALR 575
Cite 2 - (1999) 167 ALR 575
Buildings and Lands v Shun Fung Ironworks Ltd (1995) 2 AC 111
2 citations
Jump To
Cite 1 - (1995) 2 AC 111
Cite 2 - (1995) 2 AC 111
Castel Electronics Pty Ltd v Toshiba Singapore Pte Ltd (2011) 192 FCR 445
1 citation
Jump To
Cite 1 - (2011) 192 FCR 445
Ellwood v Mackay Sugar Co-Operative Association Limited [2007] QLC 52
2 citations
Jump To
Cite 1 - [2007] QLC 52
Cite 2 - [2007] QLC 52
Heavey Lex No 64 Pty Ltd v Chief Executive (2001) 22 QLCR 177
5 citations
Jump To
Cite 1 - (2001) 22 QLCR 177
Cite 2 - (2001) 22 QLCR 177
Cite 3 - (2001) 22 QLCR 177
Cite 4 - (2001) 22 QLCR 177
Cite 5 - (2001) 22 QLCR 177
Inglis v State of Queensland [2015] QLAC 3
2 citations
Jump To
Cite 1 - [2015] QLAC 3
Cite 2 - [2015] QLAC 3
Lenz Nominees Pty Ltd v The Commissioner of Main Roads [2012] WASC 6
2 citations
Jump To
Cite 1 - [2012] WASC 6
Cite 2 - [2012] WASC 6
Lowry v Coordinator-General [2012] QLC 26
1 citation
Jump To
Cite 1 - [2012] QLC 26
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
2 citations
Jump To
Cite 1 - (2001) 52 NSWLR 705
Cite 2 - (2001) 52 NSWLR 705
March v City of Frankston [1969] VR 350
2 citations
Jump To
Cite 1 - [1969] VR 350
Cite 2 - [1969] VR 350
Nevis Pty Ltd v Chief Executive (2001) 22 QLCR 231
4 citations
Jump To
Cite 1 - (2001) 22 QLCR 231
Cite 2 - (2001) 22 QLCR 231
Cite 3 - (2001) 22 QLCR 231
Cite 4 - (2001) 22 QLCR 231
Pastoral Finance Association Ltd. v Minister (1914) AC 1083
1 citation
Jump To
Cite 1 - (1914) AC 1083
PT Limited & Ors v Department of Natural Resources and Mines [2007] QLC 46
1 citation
Jump To
Cite 1 - [2007] QLC 46
Spencer v The Commonwealth (1907) 5 CLR 418
2 citations
Jump To
Cite 1 - (1907) 5 CLR 418
Cite 2 - (1907) 5 CLR 418
State of Queensland v Pajares [2004] QLAC 59
2 citations
Jump To
Cite 1 - [2004] QLAC 59
Cite 2 - [2004] QLAC 59
Succession Duties (SA) v Executor Trustee and Agency Co. of South Australia Ltd (1947) 74 CLR 358
2 citations
Jump To
Cite 1 - (1947) 74 CLR 358
Cite 2 - (1947) 74 CLR 358
Sydney Water Corp v Caruso (2009) 170 LGERA 298
2 citations
Jump To
Cite 1 - (2009) 170 LGERA 298
Cite 2 - (2009) 170 LGERA 298
Townsville City Council v Department of Main Roads[2006] 1 Qd R 77; [2005] QCA 226
2 citations
Jump To
Cite 1 - [2006] 1 Qd R 77
Cite 2 - [2006] 1 Qd R 77
Turner v Minister of Public Instruction (1956) 95 CLR 245
2 citations
Jump To
Cite 1 - (1956) 95 CLR 245
Cite 2 - (1956) 95 CLR 245

Cases Citing

Case NameFull CitationFrequency
Robke v Chief Executive, Department of Transport and Main Roads; Robke & Anor v Mackay Sugar Limited (No 2) [2025] QLC 62 citations
1

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