Armstrong v Savage Togara Coal Pty Ltd
[1999] QLC 3
•9 February 1999
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BRISBANE
9 FEBRUARY 1999
In the matter of an appeal against the determination of the Mining Warden's Court, Emerald, of compensation payable in terms of Section 282 of the Mineral Resources Act 1989 in respect of Mining Lease No. 70149 in the Emerald Mining District. (A97-75)
NF, J, RE and DL Armstrong
Appellants
v.
Savage Togara Coal Pty Ltd
Respondent
Determination and Orders
On 27 November 1998 I published my reasons concerning an appeal to this Court from a determination of the Wardens Court awarding compensation with respect to the proposed grant of a mining lease to the respondent over land owned by the appellants. In my reasons I indicated that the appellants had been generally unsuccessful, however, invited the parties to make further submissions on the question of my jurisdiction to determine any amount under s.281(4)(e) Mineral Resources Act 1989 (MRA) with respect to "business inconvenience" arising out of the probable imposition of Capital Gains Tax on the proceeds of compensation. In due course the parties informed me that they had agreed that no sum is payable with respect to the issue of "business inconvenience". In view of this, the only matters that remained to be dealt with was the question of costs and the final orders. The determination and orders, including orders for costs, were made in Chambers on 27 January 1999. I now publish the determination and orders and the supporting reasons.
The instant appeal was one of three appeals and a cross-appeal heard together. Apart from some brief documentary evidence the appeals were heard on the record with substantive submissions being made over a period of 2½ days. Part of that time was taken up with the issue of the form in which certain additional evidence should take, the issue of the admissibility of such additional evidence being dealt with earlier.
I have set out in my Determination and Orders in the matter Wills v. Minerva Coal Pty Ltd, handed down today, the law which I found there to be relevant with regard to the matter of costs. That summary of law is relevant in the present case and I will not repeat it here. I now turn to consider the matters which are relevant to my consideration of the question of costs.
Of greatest significance is that the appellants were not successful in having any ground of appeal decided in their favour, though I should point out that given my conclusions on certain relevant points of law, many of the grounds became redundant. No amount was agreed between the parties for "business inconvenience", though I note that there was an agreement for an amount to be allowed in the other matters heard together with this one. I concluded in those matters that I probably did not have jurisdiction to award any amount for "business inconvenience" and that it was not a matter of relevance to the issue of costs. Although in the present matter the parties agreed that no sum is payable for "business inconvenience", I will make some comments about my view of the matter.
I was concerned in this matter that there was not sufficient evidence for me to determine an amount under this head, nor that I had jurisdiction to make any award for "business inconvenience". Grounds 6 and 13 of the appeal said, respectively:"6.The Warden erred in holding that, upon consideration of the evidence, submissions and the authorities referred to, there had not been any matter sufficiently demonstrated in this matter which would lead to an award of any amount in excess of 10% under Section 281(4)(e) of the Act, in respect of these matters;
13. The Warden erred in not being satisfied that there are grounds on which an additional amount of compensation more than 10% minimum could be awarded."
It may be that either or both of these grounds could have been referred to by the appellant as the basis for my awarding an additional amount under s.281(4)(e) MRA for "business inconvenience". Against this is the fact that these grounds were directed to other matters in argument. This is unsurprising given that the notion of "business inconvenience" was not raised by either party, but was a conclusion drawn by me independently.
My conclusion, for the purpose of considering the costs issue, is that I had insufficient evidence upon which to base an award for "business inconvenience"; and that, on balance, and without the benefit of submission, I lean to the view that I did not have jurisdiction to make any award for "business inconvenience" as it was not a matter made "relevant to the appeal" (S.282(5)). In these circumstances, and given that "business inconvenience" was not a matter raised by the parties, this matter is not relevant to the question of costs.
It is important to observe that the parties were confronted with what I described in my reasons as "all but intractable legislation". This, I think, is a significant matter to take into account in considering the question of costs in a matter such as this. This is not a case where difficult legislation is a relevant but peripheral or incidental matter, but is one where the measure of the appellant's right to compensation is based squarely on the legislation under consideration. In such circumstances and given the limited assistance available from decided cases, it is not surprising that the appellant elected to pursue a range of matters on appeal. I refer particularly to the additional amount (s.281(4)(e)) and the issue of Capital Gains Tax, (s.281(3)(a)(vi)). To some extent with respect to these matters the appellant raised arguable propositions. Nevertheless, the appellant sought, in my view, to extend the meaning of s.281 MRA to the point that there was a clear attempt to duplicate compensation in some respects.
The three appeals and the cross-appeal were argued together, thus reducing the burden on the respondent that might have arisen from three separate appeals. The resultant economies and efficiencies are noted, however, they were eroded to some extent by the lack of reference to the record in support of particular grounds of appeal. This imposed some small burden on the respondent but was more troublesome to the Court.
The appellant submitted that each party bear its own costs. The respondent submitted that the appellant pay the respondent's costs.
Having regard to the observations that I have made above, I conclude that the lack of success of the appellant should be taken into account offset by full recognition being given to the complex nature of the legislation under which the appellant's right to compensation is assessed. There is justification in my view for an award of partial costs. The result is that I conclude that the appellant should pay 70% of the respondent's costs.
Order
1. The appeal is dismissed.
2.The appellant shall pay 70% of the respondent's costs of and incidental to the appeal including reserved costs to be ascertained and fixed by the 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 s.41(9) of the Land Act 1962.
RP SCOTT
MEMBER OF THE LAND COURT
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