Collins v Coates (No. 2)

[2012] QLC 39

LAND COURT OF QUEENSLAND

CITATION:	Collins v Coates (No. 2) [2012] QLC 0039
PARTIES:	Michael Dowse Collins (Applicant)
v.
Neil Leslie and Meridith Joyce Coates (Respondents)
FILE NO:	MRA144-11    ML 20642 MRA145-11    ML 20643 MRA146-11    ML 20644 MRA147-11    ML 20645 MRA148-11    ML 20646 MRA149-11    ML 20647 MRA 689-10   ML 20648 MRA 691-10   ML 20649
DIVISION:	Land Court of Queensland
PROCEEDINGS:	Hearing of Application for Costs
DELIVERED ON:	16 August 2012
DELIVERED AT:	Brisbane
HEARD AT:	Heard on the Papers.
MEMBER:	His Honour, Mr WL Cochrane
ORDERS:	Application for costs is dismissed.
CATCHWORDS:	Mineral Resources Act 1989 - DETERMINATION OF COMPENSATION – costs s.281(4),(7)
APPEARANCES:	Not applicable – Heard on the Papers.

1. Section 281 of the Mineral Resources Act 1989 contains the provisions relating to the determination by this Court of compensation payable to a landowner in respect of a mining lease. Section 281(7) of the Mineral Resources Act 1989 (hereafter MRA) provides:

   “(7)The Land Court shall give written notice of its determination to all parties and may make such order as to costs between the parties to the determination as it thinks fit.”

2. Section 34(1) of the Land Court Act 2000 provides:

   “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.”

3. Thus, there are two congruent statutory provisions both making any orders for costs in mining lease compensation matters at the discretion of the Court.

4. On 9 March 2012 I delivered such a decision in this matter determining the compensation to be paid by Mr Collins to Mr and Mrs Coates.

5. There were eight separate leases involved in the application and the determination in respect of each of them was consequent upon a single sittings of this Court.  The determination in respect of each mining lease application was as follows:

   (a)In relation to Lease ML 20642 compensation was assessed at $845.00 per annum to be paid in advance.

   (b)In relation to Lease ML 20643 compensation was assessed at $785.00 per annum to be paid in advance.

   (c)In relation to Lease ML 20644 compensation was assessed at $994.00 per annum to be paid in advance.

   (d)In relation to Lease ML 20645 compensation was assessed at $940.00 per annum to be paid in advance.

   (e)In relation to Lease ML 20646 compensation was assessed at $814.00 per annum to be paid in advance.

   (f)In relation to Lease ML 20647 compensation was assessed at $921.00 per annum to be paid in advance.

   (g)In relation to Lease ML 20648 compensation was assessed at $853.00 per annum to be paid in advance.

   (h)In relation to Lease ML 20649 compensation was assessed at $1,052.00 per annum to be paid in advance.

6. Each party made a submission with respect to costs. 

7. Those submissions were received on or about 30 March 2012 in each case. 

8. Further, each party then provided a response to the initial submissions received from the opposing party.

9. Mr Lyne in his submissions dated 30 March 2012 sets out the statement of position of each party at trial in the following terms:

   “The Applicant’s position was that the Respondent be paid Thirty-six dollars and twenty cent ($36.20) per Lease per year. 

   The Respondent’s position was that the Applicant pay to the Respondent the amount of Sixty Thousand Dollars ($60,000).  In respect of compensation payable to the respondent in respect of all eight leases…”

10. On that basis, Mr Lyne contends that the respondents have been entirely successful because the total compensation payable over a 15 year term equates to $108,060. 

11. The submission by Mr Lyne however ignores the fact that in my earlier decision I specifically rejected the valuation methodology and exercise carried out by the valuer engaged by the respondents and although the total figure payable (assuming each lease lasts for the whole of its 15 year term and is not surrended) was calculated on a basis different to that adopted by the valuer. 

12. Mr Collins’s submissions are somewhat inconsistent.  In the submissions received on 30 March 2012 Mr Collins sets out in some detail the background negotiations, presumably conducted on a “without prejudice” basis, between himself and Mr and Mrs Coates and makes a spirited complaint about the apparent failure by Mr and Mrs Coates to comply with some orders made by the Court.

13. No applications were made at the time of any failure by the Coates to comply with Court orders and I am of the view that I am concerned now only with the costs of the hearing. 

14. In any event having regard to the conduct of both parties I would not make any orders in favour of either party for a failure to comply with any of the interlocutory orders made earlier in this proceeding. 

15. In the written submissions referred to above, each party asks for their costs to be paid by the opponents.  Neither set of submissions are entirely clear as to the actual basis upon which costs are claimed.

16. Part of Mr Collins’s claim relates to disruption to his existing mining operations and the fact that he had staff ready to begin work on the mining leases as soon as the issue of compensation was determined.

17. Mr Collins is an experienced miner having previously had the benefit of a number of mining leases which he has exploited.

18. In the course of the hearing Mr Collins demonstrated a considerable familiarity with the processes of the granting of mining leases and indeed, at the hearing, sought to take a number of relatively technical legal points including arguments about unallocated Crown land upon which points he failed.

19. Mr Collins points to losses allegedly suffered as a consequence of an inability to begin in exploiting the leases in a sum of $118,732.

20. On top of those figures he claims direct expenses of $20,500 of which his submissions assert $2,000 was for legal expenses incurred and apparently paid depressed to lawyers.  Otherwise Mr Collins claims $1,000 a day for his own expenses but does not provide any details as to how that $1,000 is calculated. 

21. On the face of it then Mr Collins seems to be making a claim for a total of $139,232.  His position becomes somewhat unclear because the letter of 30 March received 29 March 2012 (concludes)

    “In costs following the event in this matter neither party achieved their outcome, by recommendation is each party bear their own costs (sic).”

22. While the intent of the submission may be somewhat unclear Mr Lyne, solicitor for the respondents, treated it, not unreasonably, as an application for costs. 

23. Accordingly, he submitted submissions in response to the applicant’s submissions as to costs to the Court on or about 13 April 2012.

24. In his submissions Mr Lyne took issue with the articulation of the applicant’s expenses to date and the direct expenses incurred. 

25. Because of the view I take of each set of submissions it is not necessary for me to deal, in detail, with each of the sets of submissions.

26. It sufficies for me to observe that the applicant’s “expenses to date” deal with losses which allegedly flow from an inability to conduct the proposed gold mining operation within the timeframe envisaged by Mr Collins. 

27. As an experienced miner and as a holder of mining leases Mr Collins is inevitably aware that the timeframe between the application for a mining lease and the grant of the mining lease including the determination of appropriate compensation can be a lengthy process and there is really no certainty attached to the timeframe in which the many administrative processes will be attended to. 

28. The amounts claimed have nothing to do with the conduct of the proceedings before this Court and would, in any event, in my view not be allowable. 

29. As to the direct expenses incurred, in my opinion, the response to that claim for $20,500 by the applicant is adequately dealt with by the response articulated by Mr Lyne for the respondents where he says:

    “The Respondents’ assertion that the Applicant is not entitled to costs as claimed by the Applicant under the heading ‘Direct Expenses Incurred’ is made on the basis that the Applicant was self-represented during the Proceedings from the date of the referral by the Mining Registrar of the matter for determination of Compensation up to and during the period of the Hearing of the determination of Compensation payable to the Respondents.  The costs sought in respect of the Preston Law expenses are not verified as relating to the Hearing of the determination of Compensation payable to the Respondents in respect of the granting of the relevant Mining Leases.”

30. In Anson Holdings Pty Ltd v Wallace& Anor[1] the Court had to consider an appeal in respect of an order that an objector pay part of an appellant’s costs of a proceeding in respect of a mining lease. 

    [1] [2010] QLAC 0004.

31. Although that decision involved an objection to the lease rather than a determination of compensation I regard the observations made by the Court about judicial discretion in considering whether or not to order costs to be relevant to the present decision.

32. In that appeal the appellant had submitted, inter-alia, that the Land Court and the Land Appeal Court have a long standing approach recognising the desirability of maintaining easy access to the Land Court in revenue appeals and contended that such an approach, if indeed it existed, should be extended to mining applications because the grant of a mining lease can be at least as significant to a landowner’s property and rights as a water licence decision. 

33. The appellant relied upon that contention to assert that the party’s should bear their own costs.[2]

    [2] Ibid para [2], p. 2.

34. In the course of its decision the Land Appeal Court observed as follows:

    “[7]The authorities concerning the desirability of maintaining easy access to the Court in revenue cases were considered more recently by the Land Appeal Court in PT Limited and Westfield Management Limited v The Department of Natural Resourcesand Mines[3].  The Land Appeal Court emphasised that where the Land Court is given a discretion to order the payment of costs, it should not be bound by any presumptive rule or principle, although the Court was not precluded from resorting to settled practice.[4]  The discretion is complete but must be exercised judicially.  The Court recognized that there may be any number of factors which a court vested with general jurisdiction to award costs might entertain - one such factor is the outcome of the litigation; another might be the overall purpose of the legislation.[5]  The Court said that it is entirely in accordance with the proper exercise of the discretion to award costs to give effect to the matters expressed in Bowden, but those observations should not be read as imposing a gloss on the legislation mandating when the discretion ought be exercised or not exercised.[6]  Ordinarily costs are not awarded to punish the unsuccessful parties.  Costs are intended to compensate the successful party against the expense which he or she has incurred by reason of the legal proceedings.[7] 

    [8]We respectfully agree with the observations in PT Limited and Westfield Management Limited v Department of Natural Resources and Mines.  We do not consider therefore that this Court should recognize that there is a settled rule that easy access be available to the Land Court in mining lease applications by way of costs not being awarded against either party other than in special cases.  Rather each case should be considered on its merits. 

    [9]When exercising the discretion under s.34(1) with respect to mining lease applications, it is legitimate for the Court to take into account the fact that the landholder who objects to the grant of a mining lease is exercising a statutory right to object, in circumstances where the grant of a mining lease could lead to an unwelcome intrusion on to the landowner’s property. Clearly, landholders who face having their way of life and operations on their land changed, sometimes dramatically, through mining activities in many respects beyond their control, should not be discouraged from pursuing proper concerns in an appropriate manner before both this Court and the Land Court. Similarly the conduct of the miner in the objection and appeal process is relevant.

    [10]The respondent’s success in the appeal proceedings is to be balanced against those factors.  While the rule that costs follow the event is not automatically applied in this jurisdiction, that rule is one which is deeply embedded in our law[8] and that is a factor to be taken into account when exercising our discretion under s.34(1).”

    [3] (2007) 28 QLCR 295.

    [4]           At [20], [21].

    [5] At [22].

    [6] At [23].

    [7] At [25].

    [8]           Barns v Director General, Department of Transport (1997) 18 QLCR 133 at 135.

35. In the primary decision the learned Member had observed[9]:

    “The objector landholder has a statutory right to object to an application for a mining lease and in my view ought not to be the recipient of a contrary costs order in circumstances where that right has been exercised reasonably and responsibly.”

    [9]           Wallace v Anson Holdings Pty Ltd & The Environmental Protection Agency[2009] QLC 0107 at para 13.

36. In that case, the objector had failed to focus on identification of result and prejudice from the grant of a mining lease and the learned Member below, at least inferentially, found that there had not been reasonable and responsible exercise of the statutory right to object before this Court.

37. In the present case, while I was critical in the course of the hearing of the conduct of the case by each of the party’s concerned I do not come to the view that the conduct was such as to warrant a costs order against them. 

38. Similarly, even though the end result may be a monetary figure in excess of what the respondent’s had contended for it must be remembered that that figure was arrived at adopting methodology other than that contended for by the valuer engaged by the respondent’s.

39. My decision with respect to costs is not bound by any presumptive rule or principle and in particular is not bound by any presumption that costs will follow the event, the event being a figure larger or smaller than that contended for by one party.

40. In all of the circumstances I dismiss the applications for costs and direct that each party bear their own costs and incidental to the conduct of the appeal before me.

Orders:

1.Application for costs is dismissed.

HIS HONOUR, WL COCHRANE

MEMBER OF THE LAND COURT