BHP Queensland Coal Investments Pty Ltd v Cherwell Creek Coal Pty Ltd (No 2)

The case involved a dispute between BHP Queensland Coal Investments Pty Ltd and Cherwell Creek Coal Pty Ltd concerning the interpretation of rights under the Mineral Resources Act. The matter was heard in the Land Appeal Court, where a security for costs order was initially made against Cherwell Creek Coal. This decision was later appealed by Cherwell Creek Coal, who sought to have the security for costs order overturned. The appeal focused on the discretion of the court to award costs of the appeal and the principle that costs generally follow the event.

The court was required to decide whether the security for costs order was appropriate and whether it should be overturned. Additionally, the court needed to determine the appropriate exercise of its discretion to award costs of the appeal. The court considered the longstanding principle that costs follow the event but noted that each case must be governed by its own circumstances. The court also examined the legislative intervention between the parties and whether this factor was decisive in the exercise of the costs discretion.

The court determined that the security for costs order was not appropriate and was subsequently overturned. The court exercised its discretion to award costs of the appeal to BHP Queensland Coal, the successful party. The court held that the principle of costs following the event should apply but emphasised that the circumstances of each case must be considered. The court further noted that the substantive issue related to disputed rights under the Mineral Resources Act was not akin to a resumption case, and legislative intervention between the parties did not necessarily determine the exercise of costs discretion.

The court affirmed the order made on 12 June 2009, that Cherwell Creek Coal should pay the costs of and incidental to the appeal to BHP Queensland Coal. This decision clarified the court's approach to costs in appeals and the importance of considering the specific circumstances of each case when exercising discretion.