Chief Executive, Department of Natural Resources and Mines v Kent Street Pty Ltd & Ors

SUPREME COURT OF QUEENSLAND

CITATION: Chief Executive, Department of Natural Resources and Mines v Kent Street Pty Ltd & Ors [2010] QCA 56

PARTIES: CHIEF EXECUTIVE, DEPARTMENT OF NATURAL RESOURCES AND MINES (appellant) v KENT STREET PTY LTD (ACN 006 794 654) AS TRUSTEE (respondent) WESTFIELD MANAGEMENT LTD (ACN 001 670 579) AS RESPONSIBLE ENTITY (respondent) AMP PACIFIC FAIR PTY LTD AS TRUSTEE (respondent)

FILE NO/S: Appeal No 610 of 2009 LAC No 33 of 2007

DIVISION: Court of Appeal

PROCEEDING: Appeal from the Land Appeal Court – Further Order

ORIGINATING COURT: Land Appeal Court

DELIVERED ON: 19 March 2010

DELIVERED AT: Brisbane

HEARING DATE: Heard on the Papers

JUDGES: McMurdo P, Keane JA and P Lyons J Judgment of the Court

ORDER: That the appellant pay the respondents’ costs of and incidental to the appeal to this Court, to be assessed on the standard basis.

CATCHWORDS: REAL PROPERTY – VALUATION OF LAND – OBJECTIONS AND APPEALS – QUEENSLAND – COSTS – whether s 70 of the Valuation of Land Act 1944 (Qld) applies to appeals brought in the Court of Appeal under s 65 of the Valuation of Land Act 1944 (Qld) – whether parties should bear their own costs or whether costs should follow the event – whether the appeal was frivolous and vexatious within s 70(2)(a) of the Valuation of Land Act 1944 (Qld) / Acts Interpretation Act 1954 (Qld), s 14, s 36 / Supreme Court Act 1995 (Qld), s 221 / Uniform Civil Procedure Rules 1999 (Qld), r 766(1)(d) / Valuation of Land Act 1944 (Qld), s 70 / Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594; [1990] HCA 17, cited / PT Limited & Westfield Management Limited v Department of Natural Resources and Mines [2007] QLAC 121, cited / Silk Bros Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1; [1943] HCA 2, distinguished

COUNSEL: D F Jackson QC, with D Fraser QC and T W Quinn for the appellant / S D Doyle SC, with R Traves SC and J Horton for the respondent

SOLICITORS: Crown Law for the appellant / Minter Ellison for the respondent

1. THE COURT: On 22 December 2009 this Court dismissed the appeal by the Chief Executive against the decision of the Land Appeal Court. The parties were given leave to make submissions as to the disposition of the costs of the appeal to this Court from the Land Appeal Court.

2. The Chief Executive contends that s 70 of the Valuation of Land Act 1944 (Qld) is engaged so that this Court should order that each party must bear its own costs.

3. The respondents seek an order that the Chief Executive pay their costs of the appeal on the footing that costs should follow the event. They submit that this Court's power to make an order disposing of the costs of the appeal derives from s 221 of the Supreme Court Act 1995 (Qld) and r 766(1)(d) of the Uniform Civil Procedure Rules 1999 (Qld) ("the UCPR") and is not displaced by s 70 of the Valuation of Land Act. Alternatively, it is said that this Court should regard the Chief Executive's appeal to this Court, or part of it, as frivolous or vexatious within s70(2)(a) of the Valuation of Land Act.

4. Section 221 of the Supreme Court Act provides:

"Power to award costs

The Supreme Court shall have power to award costs in all cases brought before it and not provided for otherwise than by this section."

5. Rule 766(1)(d) of the UCPR provides:

"General powers

(1) The Court of Appeal–

…

(d) may make the order as to the whole or part of the costs of an appeal it considers appropriate.

…"

6. Section 70 of the Valuation of Land Act provides:

"Costs of appeal against valuation

(1) Subject to subsection (2), each party to an appeal must bear the party’s own costs for the appeal.

(2) The court may only order costs for an appeal, including allowances for witnesses attending for giving evidence at the appeal, as it considers appropriate in the following circumstances–

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

(b) a party has not been given reasonable notice of intention to apply for an adjournment of the appeal;

(c) a party has incurred costs because the party is required to apply for an adjournment because of the conduct of the other party;

(d) a party has incurred costs because another party has defaulted in the court’s procedural requirements;

(e) without limiting paragraph (c), a party has incurred costs because another party has introduced, or sought to introduce, new material;

(f) a party does not properly discharge the party’s responsibilities in the appeal."

7. Part 6A of the Valuation of Land Act provides for three levels of appeal: s 55 provides for an appeal to the Land Court from a decision of the Chief Executive in respect of an objection to a valuation; s 64(1) provides for an appeal from a decision of the Land Court to the Land Appeal Court; and s 65 provides for an appeal from the Land Appeal Court to the Court of Appeal. While the Act does not refer to an appeal under s 55 as an appeal against a valuation, it is clear that that is an apt description of such an appeal. An appeal under s 64 to the Land Appeal Court is an appeal by way of rehearing, and under s 66, that court is given power to affirm the valuation, or reduce or increase it. An appeal under s 64 may also be described as an appeal against the valuation determined by the Land Court. An appeal to this Court, however, is of a different character. Such an appeal is, by s 65, limited to questions of law and jurisdiction. While in a particular case, the outcome of an appeal to this Court may ultimately affect a valuation of land, that is not inevitably so; and this Court is not given a general power to deal with the valuation which led to the proceedings below and to the appeal before this Court.

8. Section 66 of the Valuation of Land Act deals with the powers of the Land Court and Land Appeal Court on appeal: those powers include the power "subject to section 70, [to] make such order as [the court] deems fit with respect to the payment of costs." The respondents argue that this provision expressly applies the terms of s70 of the Valuation of Land Act only to appeals under sub-sections 55 and 64 so as to give rise to the implication that s 70 does not apply to appeals brought under s 65.

9. The approach to statutory interpretation reflected in the Latin maxim, “expressum facit cessare tacitum” (an express provision quells implicit extension) has been said to be, “a valuable servant, but a dangerous master”: see Colquhoun v Brooks (1888) 21 QBD 52, 65; Houssein v Under Secretary of Industrial Relations and Technology (1982) 148 CLR 88, 94; and Balog v Independent Commission Against Corruption (1990) 169 CLR 625, 632. But the strength of the respondents’ argument is not confined to this negative implication.

10. At this point, it is necessary to make an observation about the heading to s 70. It was introduced into the Act by an amendment made in 2008. By that amendment, the section as it previously stood, including its heading, was omitted, and the present section and heading were inserted. Prior to the amendment, s 70 was in the following terms:

“70 Costs of appeal against valuation

(1) Where the value of land as finally determined upon an appeal against the valuation is the value stated by the owner in the owner’s notice of appeal against the valuation, or is nearer to that value than to the valuation appealed against, costs shall not be awarded against the owner.

(2) Otherwise costs shall not be awarded against the chief executive.”

11. It will be apparent that the heading to s 70 is in identical terms to the heading of its predecessor. Reference may be had to the heading to a section in order to determine the scope of an expression used in the section: Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594, 602, 618. Moreover, the course taken by the legislature has the effect that, after the 2008 amending Act, the heading is itself an amendment, as defined in s 36 of the Acts Interpretation Act 1954 (Qld); and accordingly, by virtue of s 14 of the same Act, forms part of the Valuation of Land Act. Regard is to be had to it, as well as to other provisions of the Acts Interpretation Act, in construing s 70. Viewed in light of the heading, s 70 can be seen to be directed to regulating the power of the Land Court and the Land Appeal Court to make an order for costs on an appeal against a valuation to either of those courts.

12. To the extent it may be said that this is not a case where the words of the section itself are “clear and unambiguous” in the sense that expression is used in the judgment of Latham CJ in Silk Bros Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1, 16, the conclusion suggested by the heading to s 70 is confirmed by reference to the Explanatory Note for the 2008 amendment of the Valuation of Land Act. The Explanatory Note makes it plain that the occasion for the amendment was a decision of the Land Appeal Court, dealing with orders for costs in that court and the Land Court. The Land Appeal Court had made orders for the costs of proceedings in that court and the Land Court, under s 66 and s 70, as it stood at the time: see PT Limited & Westfield Management Limited v Department of Natural Resources and Mines [2007] QLAC 121 at [26], [34]. The plain intent of the amendment was to change the rule for determining when costs should be awarded in those courts. The legislature was not addressing any question as to the regulation of costs orders in this Court. Accordingly, it is difficult to attribute to the legislature an intention to alter the then existing position in relation to the disposition of the costs of an appeal to this Court from the Land Appeal Court.

13. Moreover, the Explanatory Note shows that the intention was to bring the provisions of the Valuation of Land Act into line with other legislative provisions, found in the Integrated Planning Act 1997 (Qld) and the Water Act 2000 (Qld). These provisions regulate the making of an order for costs in lower courts but not in this Court.

14. There are obvious reasons why limitations might be imposed on costs orders in the Land Court, and in the Land Appeal Court, where “merits issues” are at large. Those courts are intended to give members of the public a broad opportunity to litigate determinations made under a statute which may have adverse consequences for them. In contrast, an appeal to this Court is restricted to the grounds previously mentioned; and such an appeal follows two opportunities to litigate the merits. In such a case, there is good reason for the legislature adopting a different approach to costs, namely, that the usual rules as to the disposition of costs of proceedings of this Court would apply. That is consistent with the approach taken by the legislature in the somewhat analogous areas of the law regulated by the and the .