Aurizon Network Pty Ltd v Glencore Coal Queensland Pty Limited

[2020] QCA 211

SUPREME COURT OF QUEENSLAND

CITATION:

Aurizon Network Pty Ltd v Glencore Coal Queensland Pty Limited & Ors [2020] QCA 211

PARTIES:

AURIZON NETWORK PTY LTD
ACN 132 181 116
(appellant)
v
GLENCORE COAL QUEENSLAND PTY LIMITED
ACN 098 156 702
(first respondent)
CALEDON COAL PTY LIMITED (IN LIQUIDATION)
ACN 120 967 839
(second respondent)
YARRABEE COAL COMPANY PTY LTD
ACN 010 849 402
(third respondent)
CORONADO CURRAGH PTY LTD (FORMERLY WESFARMERS CURRAGH PTY LTD)
ACN 009 362 565
(fourth respondent)
WASHPOOL COAL PTY LTD
ACN 139 976 819
(fifth respondent)
COLTON COAL PTY LTD (IN LIQUIDATION)
ACN 140 768 636
(sixth respondent)

FILE NO/S:

Appeal No 10197 of 2020
SC No 2880 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – [2019] QSC 249 (Jackson J)

DELIVERED ON:

25 September 2020

DELIVERED AT:

Brisbane

HEARING DATE:

11 March 2020; 12 March 2020
Further submissions: 14 September 2020

JUDGES:

Fraser and McMurdo and Mullins JJA

ORDERS:

1.   Appeal allowed.

2.   Caledon Coal Pty Limited (in liquidation) and Colton Coal Pty Ltd (in liquidation) pay the costs of the appellant’s case against them in the Trial Division.

3.   The respondents pay the appellant’s costs of this appeal.

CATCHWORDS:

PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – OTHER MATTERS – where the parties were parties to two other appeals, judgment in which was delivered on 1 September 2020 – where the first, third, fourth and fifth respondents were ordered to pay the appellant’s costs of those appeals and of the proceeding in the Trial Division – where the appellant filed by leave a notice of appeal during the hearing of the first two appeals – where the appellant seeks that the second and sixth respondents pay its costs of the proceeding in the Trial Division and that all the respondents pay its costs in this appeal – whether that order should be made

COUNSEL:

D Clothier QC, with S Webster and E Doyle-Markwick, for the appellant
J D McKenna QC, with S Cooper QC and S B Hooper, for the first respondent
A J Trevor (sol) for the second respondent
D O’Sullivan QC, with J O’Regan and A C Stumer, for the third, fourth and fifth respondents
No appearance for the sixth respondent

SOLICITORS:

Quinn Emanuel Urquhart & Sullivan for the appellant
Holding Redlich for the first respondent
Clayton Utz for the second respondent
Norton Rose Fulbright for the third, fourth and fifth respondents
No appearance for the sixth respondent

1. FRASER JA:  I agree with the reasons for judgment of McMurdo JA and the orders proposed by his Honour.

2. McMURDO JA:  Aurizon Network Pty Ltd (Aurizon) was given judgment on its claim in the Trial Division against six defendants.[1]  Two appeals were brought against that judgment.  One appeal was by Glencore Coal Queensland Pty Limited (the Glencore appeal).  The other appeal was by Yarrabee Coal Company Pty Ltd, Coronado Curragh Pty Ltd and Washpool Coal Pty Ltd (the Yarrabee appeal).  Two of the defendants against which Aurizon was given judgment did not appeal.  They are Caledon Coal Pty Limited (in liquidation) (Caledon) and Colton Coal Pty Ltd (in liquidation) (Colton).

   [1]Aurizon Network Pty Ltd v Glencore Coal Queensland Pty Ltd & Ors (2019) 1 QR 392; [2019] QSC 163.

3. On 1 September 2020, the Court delivered its judgment in those appeals.  Each appeal was dismissed with costs.

4. In a subsequent judgment of the trial judge, given on 11 October 2019, it was ordered that the defendants pay to Aurizon 65 per cent of its costs.  Aurizon was not awarded all of its costs because Aurizon failed in its alternative case, for the same relief, on what this Court’s judgment described as the timing issue.

5. This Court concluded that Aurizon ought to have succeeded also on the timing issue, and for that reason, ought to have been given all of its costs in the proceeding in the Trial Division.[2]  It ordered that the trial judge’s order of 11 October 2019 be set aside and that the appellants, in the Glencore and Yarrabee appeals, pay Aurizon’s costs of the proceeding in the Trial Division.

   [2]Glencore Coal Queensland Pty Limited v Aurizon Network Pty Ltd & Ors; Yarrabee Coal Company Pty Ltd & Ors v Aurizon Network Pty Ltd & Ors [2020] QCA 182 [192].

6. It remains for this Court to dispose of a third appeal, filed by leave during the hearing of the other appeals.  This is an appeal by Aurizon, to which all six defendants are respondents.

7. In its outline of argument in the other appeals, Aurizon had already submitted that if it succeeded on the timing issue, it should have all of its costs at first instance.  The apparent purpose of this third appeal was to seek that outcome not only against the appellants in the Glencore and Yarrabee appeals, but also against Caledon and Colton.  This third appeal was commenced the day after the trial judge had granted leave to appeal.

8. Aurizon seeks that this Court vacate its orders made on 1 September, relating to the costs of the Trial Division, and make the same orders against the same parties, together with Caledon and Colton, in this appeal.  It is unnecessary, in my view, to disturb the orders made on 1 September.  What must be done is to formally allow the present appeal and order that Caledon and Colton, like their co-defendants, pay Aurizon’s costs at first instance.  All six respondents should be ordered to pay the costs of this appeal by Aurizon, although those costs are unlikely to be significant.  None of the respondents opposes orders to that effect.

9. It should be added that Aurizon asks for another amendment to the orders of 1 September, which is to specifically include, within Aurizon’s costs of the Glencore and Yarrabee appeals, the costs relating to its notice of contention.  However those costs are part of Aurizon’s costs in responding to those appeals, and need not be distinctly mentioned in the orders.

10. In this appeal I would order as follows:

    1.Appeal allowed.

    2.Caledon Coal Pty Limited (in liquidation) and Colton Coal Pty Ltd (in liquidation) pay the costs of the appellant’s case against them in the Trial Division.

    3.The respondents pay the appellant’s costs of this appeal.

11. MULLINS JA:  I agree with McMurdo JA.