8th April, J.H. and E.J. Williams (Qld) Pty Ltd v. The Logan Motorway Company Limited

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1 LAND COURT, BRISBANE 8th April, 1992 Re: J.H. and E.J. Williams (Qld) Pty Ltd v. The Logan Motorway Company Limited APPLICATIONS FOR COSTS Applications have been made for costs following the striking out of a claim for compensation purportedly made under Section 11A of the Main Roads Act In May 1990, Messrs Morris Fletcher and Cross, Solicitors, referred to the Court a copy of a claim for compensation dated 18th December, 1989, which had been served on the Commissioner of Main Roads that day and past on to them as Solicitors for the respondent by the Solicitor for the Commissioner of Main Roads - the Crown Solicitor. The letter requested that the claim be filed and the matter set down for hearing. The final paragraph of the letter stated that - " Please note that it is our client's contention that the Court does not have jurisdiction to deal with the matter and this argument will be the basis of a preliminary application at the commencement of the hearing. " On 19th March, 1992, the respondent made application to the Court in chambers (which on the matter being called was dealt with in open court) to (1) strike out the claim on grounds that the Court had no jurisdiction to hear it (2) for an order that the claimant pay the respondent's costs of and incidental to the claim including the costs of the application before the Court and (3) such further or other order as the Court may see appropriate. The claim was served on the Commissioner of Main Roads by the claimant's solicitors, Messrs Chambers McNab Tully and Wilson. The claim opens with a statement that proceedings had commenced in the Supreme Court against the respondent for compensation pursuant to the provisions of the Local Government Act.

2 2 This is followed by a statement that the claimant intends proceeding with that claim - " However, in the interests of preserving to our client all rights available to it, our client hereby claims compensation against the Commissioner and the company pursuant to Section 11A of the Main Roads Act. " This Court is a creature of statute and its jurisdiction is limited by statute. Under s.11a of the Act the Court is vested with jurisdiction to determine " any question as to whether compensation is payable under this subsection or as to the amount of compensation..." (s.11a(10)(b)). S.11A deals with limitation of access. Upon being satisfied that access should be limited as recommended by the Commissioner, the Governor-in-Council may by Proclamation publish and confirm the recommendation (which Proclamation contains the date on and from which the recommendation shall take effect). From the date so fixed, the Act provides that access shall be limited (s.11a(3)). It follows that in the absence of a proclamation under the section, a claim for compensation cannot arise under the section and consequently there is nothing to invoke the jurisdiction of the Court. In the subject case, a proclamation had not issued either at the time of the lodgment of the claim or since. On the hearing of the matter, leave was sought to withdraw the claim. The claim was struck out. This left the Court with the issue of costs. Counsel for the claimant seeks costs of and incidental to the application before the Court. Counsel for the respondent seeks costs of and incidental to the action including the application before the Court. The former seeks costs on a party and party basis, the latter on a solicitor and client basis. Under the Act (s11a(10)), assuming that a proclamation issued, a claimant has twelve months from the date when the limitation of access took effect to serve a claim. A claim may be referred to the Court by either party. In this case (notwithstanding the point of jurisdiction which was, it appears, at all times known to the respondent) the reference was made by the respondent. On 1st August, 1990, Chambers McNab Tully and Wilson asked the Registrar of the Court in response to advice being given by the Registrar of the reference made on 10th May, 1990, to leave the matter "in abeyance

3 3 for the time being". The reasons are stated as follows - " As previously advised, our client's application was filed to preserve its rights in respect of a claim currently being pursued in the Supreme Court. Our client also had available to it a possible claim under the Main Roads Act in respect of which the Land Court has jurisdiction. However, should our client succeed in the Supreme Court, the Land Court proceedings would no longer be necessary. " And so the matter lay in Court until this application was brought. Behind this scene it is apparent that the claimant through its solicitors was advised promptly of the attitude the respondent would take. In advices given by Morris Fletcher and Cross by letter dated 18th January, 1990, it is said - " Kindly let us know if it is your client's intention to claim compensation against our client pursuant to Section 11A. If so, please advise - (a) (b) (c) why we have not been served with a copy of the claim; the date or dates on which the proclamation or proclamations referred to in Section 11A(3) of the Main Roads Act were made; and the basis on which your client asserts that our client is liable to pay your client compensation pursuant to Section 11A of the Main Roads Act. If it is your client's intention to claim compensation against our client pursuant to the abovementioned section, then on our instructions the claim is clearly misconceived. On that basis, we put you on notice that should the matter proceed to the Land Court and our client be successful, it will seek costs against your client on a solicitor and client basis. " The claim was not withdrawn and the matter remained dormant until January this year when Morris Fletcher and Cross requested the claimant's solicitors to specify the date or dates of the proclamation or proclamations relied upon in respect of the claim. In the absence of a satisfactory response these proceedings were commenced. The application for costs incurred by the claimant in resisting the application by the respondent is based on the question of reasonableness. An analogy is seen between this matter and matters where a claimant is properly before the Court seeking compensation. Reasonableness in those circumstances includes the claimant being

4 4 entitled to professional fees incurred in the preparation and lodgment of the claim. Costs of these types of action are in the discretion of the Court subject to any fetter as is prescribed by the Acquisition of Land Act or any other Act which may govern the particular matter. General principles which are relevant in the application of the discretion are contained in Moyes and Others v. Townsville City Council (1979) 6 Q.L.C.R. 271 (L.A.C.). These principles however can have no relevance to the subject matter for the simple reason that a course of action (claim) under the particular section did not arise and could not arise until access was limited by proclamation. Accordingly the Court in considering the matter before it must exercise the discretion vested in it under s.41(9) of the Land Act Notice of the attitude which the respondent intended to take was given to the claimant on receipt of the claim. It appears to me that the claimant on receipt of such advice and being properly informed would have discontinued the action at that time. This was not done. The opportunity to do so remained. I am thus of the opinion that I have no alternative but to award the respondent costs of and incidental to the action, including costs of this application. Costs are sought on a solicitor and client basis. An authority quoted for such an order is Fountain Selected Meats (Sales) Pty Ltd v. International Produce Merchants Pty Ltd and Others (1988) A.L.R. p. 397 and particularly that part of the judgment of Woodward J. found at p It is clear on the facts of this case that the claimant properly advised "should have known that he had no chance of success". The claim appears to have been served as a precautionary measure. Nevertheless, in these circumstances one would expect that as soon as the facts were known (notice of which was given on receipt of the claim), the matter would be put at an end. That was not to be the case. Further assuming that the claimant had two mutually exclusive courses of action (a right to claim compensation before two separate tribunals each with jurisdiction) available to it, the election as to the tribunal in which it seeks compensation must be made before proceedings commence. I am therefore of the opinion that the respondent is entitled to costs as sought.

5 5 Accordingly, in the exercise of the Court's discretionary powers, it is ordered that the claimant pay the respondent's costs of and incidental to this action including the costs of and incidental to the application before the Court. The amount of such costs shall be ascertained and fixed on a solicitor and client basis, by the Costs Taxing Officer of the Supreme Court at Brisbane according to the scale of costs prescribed by law for the time being in respect of proceedings in the Supreme Court and in accordance with the provisions of Section 41(9) of the Land Act Acting President of the Land Court