Deimel v Phelps - [2020] QLC 2

LAND COURT OF QUEENSLAND

CITATION:

Deimel v Phelps [2020] QLC 2

PARTIES:

Wolfgang Deimel

(applicant)

Mark Phelps

(objector)

FILE NO:

MRA378-19 (MLA 100140)

DIVISION:

General Division

PROCEEDING:

Hearing of an application for costs

DELIVERED ON:

7 January 2020 [ex tempore]

DELIVERED AT:

Brisbane

HEARD ON:

7 January 2020

HEARD AT:

Brisbane

PRESIDENT:

FY Kingham

ORDER:

The objector must pay the applicant the sum of $1,153.83 for reasonable costs necessarily incurred in this case.

CATCHWORDS:

ENERGY AND RESOURCES – MINERALS – COURTS AND TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – QUEENSLAND – COSTS – where an application for a mining lease was referred to the Court for a mining objection hearing – where objection was withdrawn – whether costs can be awarded to a self-represented litigant – where the Court declined to award costs for the litigant’s time and for loss of mine production – where the Court awarded costs for out-of-pocket expenses incurred where the Applicant attended as a potential witness

Land Court Act 2000 s 4(1), s 7, s 24, s 34, s 52A, s52B

Land Court Rules r 4

Mineral Resources Act 1989 s 265(10), s 268(9)

Aussie Invest Corporation Pty Ltd v Hobsons Bay City Council (2004) 22 VAR 212; [2004] VCAT 2188, applied

Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14, applied

Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59, cited

Maronis Holdings Ltd v Nippon Credit Australia Ltd [2002] NSWSC 838, cited.

Overton Investments Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (2001) 113 LGERA 439; [2001] NSWCA 137, cited

W (deceased) v W [2004] FamCA 319, cited

APPEARANCES:

W Deimel, the applicant (self-represented)

No appearance for the objector

[1]          Mr Phelps has withdrawn his objection to Mr Deimel’s application for a mining lease. That means it was unnecessary for the Court to decide Mr Deimel’s application to strike out Mr Phelp’s objection as not being “properly made”. Further, as there is no other objection to the application, the Court has remitted the application to the chief executive of the Department of Natural Resources Mines and Energy for further processing.
[2]          Mr Deimel now seeks an award of costs related to the hearing of his application.
[3]          Mr Phelps has not appeared today. An attempt to contact him by telephone failed as well. Mr Deimel has proved service on Mr Phelps of his costs application and the Court has advised Mr Phelps of the date for hearing and the arrangements that the Court would call if he did not appear in person. In the absence of any request by Mr Phelps to adjourn the costs application or explanation for his failure to appear, I proceeded with the hearing.
[4]          The Court has power to award costs under the Land Court Act 2000:
“Costs
(1) Subject to the provisions of this or another Act to the contrary, the Land Court may order costs for a proceeding…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] QLC 2
Decision Date: 7 January 2020

CaseChat Overview and Summary

The matter of Deimel v Phelps involved an application by the respondent for a mining lease. The applicant objected to the application, but subsequently withdrew the objection. The case was referred to the Court for a mining objection hearing. The applicant, who was self-represented, sought an award of costs for time spent on the matter and for lost production, while the respondent argued that the applicant was not entitled to any costs. The Court was required to decide whether the self-represented litigant could be awarded costs for their time and for loss of mine production, and whether the applicant was entitled to any costs for out-of-pocket expenses incurred.

The Court found that the self-represented litigant was not entitled to an award of costs for their time spent on the matter or for loss of mine production, as there was no statutory or common law basis for such an award. However, the Court did award the applicant costs for out-of-pocket expenses incurred where the applicant attended as a potential witness. The Court held that the applicant was entitled to recover these expenses, as they were reasonably incurred and necessary in the circumstances of the case.

In summary, the Court found that while the self-represented litigant was not entitled to an award of costs for their time or for loss of mine production, they were entitled to recover out-of-pocket expenses incurred where they attended as a potential witness. The Court ordered that the objector must pay the applicant the sum of $1,153.83 for reasonable costs necessarily incurred in this case.

Orders

Orders of the court

The objector must pay the applicant the sum of $1,153.83 for reasonable costs necessarily incurred in this case.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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