Calcifer Industrial Minerals Pty Ltd v Daraleigh Pty Ltd as Trustee for the DC & ML Dillon Trust
[2010] QLC 95
•26 July 2010
LAND COURT OF QUEENSLAND
CITATION: Calcifer Industrial Minerals Pty Ltd v Daraleigh Pty Ltd as Trustee for the DC & ML Dillon Trust [2010] QLC 0095 PARTIES: Calcifer Industrial Minerals Pty Ltd
(applicant/respondent)v. Daraleigh Pty Ltd as Trustee for the DC and ML Dillon Trust
(respondent/applicant)FILE NO: MRA138-09 DIVISION: Land Court of Queensland PROCEEDING: Costs of an application DELIVERED ON: 26 July 2010 DELIVERED AT: Brisbane HEARD AT: Written submissions PRESIDENT: Mrs CAC MacDonald ORDER: The order of this Court made on 19 March 2010, that the respondent Daraleigh Pty Ltd is to pay the costs of the applicant Calcifer Industrial Minerals Pty Ltd of and incidental to the hearing of the general application filed in this Court on 3 February 2010, is affirmed.
CATCHWORDS: Costs – Land Court – costs of application – discretion in Court to award costs – costs follows event longstanding principle – but each case governed by its circumstances – Land Court Act 2000 SOLICITORS: DLA Phillips Fox for the applicant/respondent
Vandeleur and Todd for the respondent/applicant
The background to this matter is set out in my decision handed down on 19 March 2010.[1] For present purposes, it is sufficient to note that Calcifer Industrial Minerals Pty Ltd lodged applications for a mining lease and an environmental authority in the Department of Natural Resources and Mines, Mareeba on 13 February 2003 over land owned by Daraleigh. No objections to the mining lease application were filed within the specified time period. On 31 October 2008, the application was referred for hearing to the Land Court by the Mining Registrar, Mareeba, pursuant to s.265 of the Mineral Resources Act 1989.
[1] Calcifer Industrial Minerals Pty Ltd v Daraleigh Pty Ltd [2010] QLC 0046.
The mining lease application was dealt with by the Judicial Registrar of the Land Court who handed down his decision on 13 November 2008. The Judicial Registrar dispensed with the hearing of the application pursuant to s.270(1) of the Mineral Resources Act and dealt with the matter on the papers. He recommended to the Honourable the Minister for Mines and Energy that Mining Lease No. 20378 be granted to the applicant Calcifer over the whole of the application area for a term of 20 years.
In February 2010, Daraleigh filed an application, pursuant to s.31 of the Land Court Act 2000, for a rehearing of the mining lease application and associated matters. The principal basis of Daraleigh’s complaint was that Daraleigh had not been served with a certificate of public notice as required by s.252B(1)(c)(i), and that Daraleigh had not been afforded the opportunity to object to the mining lease application which was, consequently, dealt with by the Judicial Registrar in the absence of Daraleigh. Daraleigh also submitted that because the land the subject of the mining lease application and the Judicial Registrar’s recommendation included restricted land, s.238(2) of the Mineral Resources Act required the Judicial Registrar to be satisfied that the respondent consented to the grant of that application.
The application for a rehearing was refused as were applications to join Daraleigh Pty Ltd as a party to MRA1285-08 nunc pro tunc and for a declaration pursuant to s.33 of the Land Court Act 2000. At the time of handing down my decision, I also ordered Daraleigh to pay the costs of Calcifer of and incidental to the hearing of the application, unless Daraleigh contended within a specified period that some other order ought to be made.
Daraleigh has submitted that it ought not to be ordered to pay Calcifer’s costs and that the more appropriate order would be that the costs of the general application be reserved, on the grounds that -
· The decision in no way criticised the facts and circumstances on which the application was made or Daraleigh’s written submissions or oral submissions. The application was determined on the basis of technical legal argument and not on a dispute as to the facts.
· An email from the Mining Registrar of the Mareeba District Office of the Queensland Department of Mines and Energy to the Court indicated that the Mining Registrar would recommend to the Minister possible rejection or rehearing of the application for the mining lease because Calcifer had not hand delivered the notice to Mr Dillon of Daraleigh. Moreover the applicant did not use the address for service of Daraleigh correctly stated on the QVAS search.
· A further email from the Mining Registrar at Mareeba to the Chief Surveyor of Queensland Mines and Energy dated 21 January 2010 says that the Land Court was not advised by the Mining Registrar that written landholder consent for the grant of a lease over restricted land had not been lodged by the close of objections on 22 October 2008. The Land Court recommended the grant over the whole of the application area. In the Mining Registrar’s opinion it was likely, depending on the outcome of the compensation determination by the Land Court, that the grant brief to the Minister would recommend that the application be reheard by the Land Court.
· The application was not filed as part of a delaying strategy on the part of Daraleigh nor with vexatious or frivolous intent. The applicant, Daraleigh, held a genuine grievance that it had not been afforded procedural and natural justice in relation to its right to lodge objections and to appear at a contested hearing of the mining lease application.
The respondent has submitted that -
· The Land Court formed the view that Daraleigh should pay the costs of the applicant Calcifer of and incidental to the general application filed on 3 February 2010.
· All of the material in the respondent’s costs submissions was before the Land Court on the hearing of the application.
· In the circumstances the Court’s order that the respondent pay the applicant’s costs of the general application ought to stand.
Section 34 of the Land Court Act provides that -
"34. Costs
(1) Subject to the provisions of this or another Act to the contrary, the Land Court may order costs for a proceeding in the court as it considers appropriate.
(2) If the court does not make an order under subsection (1), each party to the proceeding must bear the party's own costs for the proceeding.
…”
The Land Appeal Court has held on many occasions that the discretion conferred by s.34(1) to order costs as the Land Court considers appropriate is unfettered.[2] Those cases relied on an earlier decision of the Full Court of Queensland in Wyatt v Albert Shire Council[3] where it was held, in relation to s.31 of the City of Brisbane Town Planning Act 1964 (which is very similar to s.34(1) of the Land Court Act), that the effect of s.31 was that the discretion conferred with respect to costs was complete or full. The discretion was not to be exercised arbitrarily, but judicially, that is, for reasons that can be considered or justified. Resort may be had to any settled practice of a court but a purported exercise of discretion which fails because the mind is closed to relevant considerations through a rigid adherence to preconceptions is an error of law. It would not be right to start with the preconception that costs follow the event. The Court also said that it would be wrong to attempt to lay down rules governing the exercise of the discretion and each case should be governed by its circumstances.[4]
[2]See, for example, Kabale Holdings Pty Ltd v Chief Executive, Department of Transport (1997) 18 QLCR 166; Haber v Department of Main Roads [2004] QLAC 0102; BHP Queensland Coal Investments Pty Ltd v Cherwell Creek Coal Pty Ltd (2) [2009] QLAC 0008.
[3] [1986] 1 Qd.R 486.
[4] At 489, 493.
It is accepted that Daraleigh did not act frivolously or vexatiously in bringing this application, nor was the application part of a delaying strategy on its part. The main basis of the application was that Daraleigh had not been afforded natural justice because it had not been served with a certificate of public notice as required.
The principal reason for the failure of Daraleigh’s application for a rehearing was that I held that Daraleigh had no standing to bring an application under s.31 of the Land Court Act. Because of that conclusion, it was not necessary for me to determine whether service of the certificate of public notice had been properly effected, a matter that was in issue between the parties. Thus it remains an open question as to whether Daraleigh was denied natural justice.
Calcifer has been successful in resisting these applications. While there is no preconception in this Court that costs follow the event, the Land Appeal Court has recognized that the rule that costs will usually follow the event is one which is deeply embedded in our law[5] and that is a factor which I may take into account in exercising my discretion under s.34(1) of the Land Court Act.[6] I can see no reason why Calcifer should not have the benefit of a costs order, given its success in this matter.
[5] Barns v Director-General, Department of Transport (1997) 18 QLCR 133 at 135.
[6] BHP Queensland Coal Investments Pty Ltd v Cherwell Creek Coal Pty Ltd (2) [2009] QLAC 0008 at [12].
In the circumstances, I consider that my indicative order made on 19 March 2010 should stand. Accordingly the order that Daraleigh is to pay the costs of Calcifer of the hearing of the general application filed in this Court on 3 February 2010 is affirmed.
ORDER
The order of this Court made on 19 March 2010, that the respondent Daraleigh Pty Ltd is to pay the costs of the applicant Calcifer Industrial Minerals Pty Ltd of and incidental to the hearing of the general application filed in this Court on 3 February 2010, is affirmed.
CAC MacDONALD
PRESIDENT OF THE LAND COURT
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