Queensland Judgments


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Michael Vincent Baker Superannuation Fund Pty Ltd v Aurizon Operations Limited & Anor (No 2)  
Unreported Citation: [2017] QSC 63

This decision deals with costs, following a successful action for damages in nuisance by the plaintiff. Three key issues are dealt with in this summary. First, whether the plaintiff’s costs ought to have been restricted to the District Court scale in accordance with r 697 of the UCPR. Her Honour rejected this submission finding that there was no evidence that the value of “land” (as opposed to just that part affected by the nuisance) was less than $250,000.00 at the time the proceeding commenced. Second, her Honour determined there was no need to make a specific order as to the costs thrown away by the amendment to the statement of claim because those costs were payable pursuant to rr 386 and 692 of the UCPR. Third, Mullins J held that the costs order against the second defendant should be restricted to the plaintiff’s costs incurred after the date the joinder of the second defendant took effect, on the basis that the claim against the second defendant was essentially the same as the claim against the first defendant, which claim had been on foot for some ten years.

Mullins J

27 April 2017

The plaintiff was successful in an action for damages for nuisance against the first and second defendants, and in obtaining an injunction against the second defendant. [3]. In written submissions on costs, the plaintiff sought an order that costs follow the event, but sought separate orders against the first and second defendants due to the fact that the second defendant was only joined to the proceeding on 30 September 2014. [3]. The defendants raised a range of other matters, two of which are considered below.

Whether costs should be assessed as if the proceeding had remained in the District Court

In November 2008, the plaintiff successfully applied for a transfer of the proceeding from the District Court to the Supreme Court. [7]. The defendants sought to rely on rr 697(3)–(4) of the Uniform Civil Procedure Rules 1999 (the “UCPR”), which require the plaintiff’s costs to be assessed as if the proceeding had been started in the District Court where “the only relief obtained by a plaintiff in a proceeding in the Supreme Court is relief that, when the proceeding began, could have been given by the District Court”. [8].

At the time the proceeding was commenced “the District Court’s jurisdiction to restrain nuisance to land was relevantly where the value of the land did not exceed the monetary limit” of $250,000: District Court of Queensland Act 1967, subs 68(1)(b)(xii) and subs 68(2). [10]. Under s 68(3), the value of the land was to be determined by reference to “the most recent valuation made by the Chief Executive of the Department administering the Valuation of Land Act 1944 or, if there were no such valuation, the current market value at that time of the land, exclusive of improvements”. [10]. The defendants submitted that the value of “land” was to be determined only by reference to the “land affected by the nuisance and not some larger parcel”. [10]. In contrast, the plaintiff submitted that “the term ‘land’ must be the land the subject of the Valuer-General’s valuation and not some relevant portion of the land”. [10].

Mullins J held that the “term ‘land’ for the purpose of determining the jurisdiction of the District Court must be the land the subject of the Valuer-General’s valuation and not that part of the land affected by the nuisance”, which may or may not be the whole of the land. [11]. Further, her Honour noted that there was no evidence from which it could be inferred that the unimproved value of the relevant land was less than $250,000 when the proceeding was commenced, so as to engage rr 697(3)–(4) of the UCPR. [12]–[14]. Her Honour determined that costs against the first defendant should be assessed on the District Court scale until the transfer of the proceeding to the Supreme Court.

Costs of amending the plaintiff’s statement of claim

The defendants sought an order that they not be liable for the costs incurred by the plaintiff in amending the statement of claim. [16]. Her Honour held that a specific order excising those costs is not required, by virtue of the application of r 386 or r 692 of the UCPR. [17].

The defendants also sought an express order that the costs thrown away by amendments to the statement of claim be paid by the amending party, in reliance upon a passage of Holmes JA (as her Honour then was) in Body v Mount Isa Mines [2014] QCA 214. [18]. Mullins J held that the observations of Holmes JA in describing orders as “unremarkable” were directed at the content of the orders, in allowing the default position to operate, rather than the fact of the making of the order. [19].

In light of this, and the fact that the submission was formulated without regard to any orders that were made in relation to those amendments, [20]–[21], Mullins J declined to make a specific order regarding the costs thrown away, but rather found that those costs were “payable by the plaintiff to the relevant defendant pursuant to r 386 and/or r 692, in the absence of any other order”. [21].

Orders to accommodate joinder of second defendant

The plaintiff argued that it was entitled to costs properly incurred before the commencement of the proceeding, which were incidental to instituting the proceeding against the defendants. [22]. The second defendant sought an order limiting its liability to costs incurred after the date the joinder took effect, namely, 30 September 2014. [22]. The basis of this submission was that the case pursued against it was essentially the same as that brought against the first defendant. Mullins J accepted this submission, having regard to the unusual features of the case, which included that the litigation against the first defendant had been ongoing for some 10 years at the time of joinder. [22]. The first defendant also sought an order that it only pay the plaintiff’s costs until 29 September 2014. Her Honour did not, however, see any justification for limiting the costs order against the first defendant, “as after the joinder of the second defendant the first defendant continued with its defence of the proceeding”. [23].

J English