Donovan v Struber (No. 4)

Case [2013] QLC 14

LAND COURT OF QUEENSLAND

CITATION: Donovan v Struber & Ors (No. 4) [2013] QLC 14
PARTIES:

Gary Awarua Donovan
(applicant)

v.

Stephen Roy Struber and Dianne Rose Wilson-Struber
(respondents)
Chief Executive, Department of Environment and Heritage Protection
(Statutory Party)

FILE NOs:

MRA137-10, EPA209-10, MRA352-09, EPA351-09,

MRA354-09, EPA353-09, MRA356-09, EPA355-09,

MRA342-11, EPA352-11, MRA341-11, EPA353-11,

MRA164-10, EPA165-10, MRA166-10, EPA167-10,

MRA328-10, EPA329-10
DIVISION: General Division
PROCEEDING: Applications for costs
DELIVERED ON: 23 April 2013

DELIVERED AT:

HEARD ON:

Brisbane

Submissions closed 9 October 2012
HEARD AT: On the Papers
A/PRESIDENT: PA Smith
ORDERS: The applications for costs brought by both the miner and the landholders are refused.
CATCHWORDS:

Land Court Act 2000

Land and Resources Tribunal Act 1999

Mineral Resources Act 1989

Environmental Protection Act 1994

Costs – unfettered discretion – matters to be taken into account – s.34 Land Court Act 2000 – s.268(8) and (9) of the Mineral Resources Act 1989 – factors governing exercise of discretion – reasonableness of parties – settlement of litigation

Anson Holdings Pty Ltd v Wallace & Anor (No. 2) [2010] 31 QLCR 130

Donovan v Struber & Ors (No. 3) [2012] QLC 28

Donovan v Struber & Ors [2011] QLC 45

Mentech Resources Pty Ltd v MCG Resources Pty Ltd (In Liq) & Ors (No. 2) [2012] QLAC 002

Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin [1997] 186 CLR 622

Peabody West Burton Pty Ltd & Ors v Mason & Ors (No. 2) [2013] QLC 12

PT Limited and Westfield Limited v Department of Natural Resources and Mines [2007] 28 QLCR 295

South East Queensland Electricity Board v Australian Telecommunications Commission (Unreported; Federal Court of Australia; 10 February 1989)

Titan Sandstone Pty Ltd v ChongHerr Investments Pty Ltd [2009] QLC 47
APPEARANCES:

Mr J Trevino of Counsel for the applicant

Mr J Korn of Counsel for the respondent

Mr N Loos of Counsel for the Statutory Party
SOLICITORS: Preston Law for the applicant
Bottoms English for the respondent
Legal Services, Department of Environment and Heritage Protection for the Statutory Party

Background

  1. I have before me 18 matters in which applications have been made for orders as to costs. This complex litigation has been before this Court for many years. Details of the litigation are set out in the decision of Donovan v Struber & Ors (No. 3)[1] and earlier decisions involving these matters.

  2. In short, Gary Awarua Donovan (the miner) sought the grant of nine mining lease applications (MRAs). Stephen Roy Struber and Dianne Rose Wilson-Struber (the landholders) lodged both Mineral Resources Act 1989 (MRA) objections and Environmental Protection Act 1994 (EPA) objections to each MLA. Due to the provisions of the EPA, the Chief Executive, Department of Environment and Heritage Protection, became a Statutory Party to each EPA objection.

  3. The extent of the objections were far-reaching and complex. A significant amount of time was taken up in preparing the matters for hearing, including the consideration of preliminary legal issues.[2]

[2]     See Donovan v Struber…

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Details
AGLC
Donovan v Struber (No. 4) [2013] QLC 14
Case
[2013] QLC 14
Decision Date

CaseChat Overview and Summary

The matter of Donovan v Struber (No. 4) arose in the Supreme Court of Queensland, involving a dispute between the landholders and a mining company over alleged breaches of statutory duties and nuisance. The landholders claimed damages for nuisance and breaches of statutory duty, while the mining company counterclaimed for declarations regarding the validity of its mining lease and entitlement to damages for alleged nuisance caused by the landholders. The court was tasked with determining the appropriate allocation of costs between the parties under the Land Court Act 2000 and the Mineral Resources Act 1989.

The central legal issue before the court was the exercise of its discretion regarding the allocation of costs. The court needed to consider the relevant statutory provisions, including section 34 of the Land Court Act 2000 and sections 268(8) and (9) of the Mineral Resources Act 1989. The court also had to evaluate the conduct of the parties, their reasonableness in the litigation, and whether any settlement offers were made. The court needed to balance these factors to decide if either party was entitled to costs and, if so, the extent of those costs.

In its judgment, the court found that neither party demonstrated the reasonableness required to warrant an order for costs. The court emphasised that the primary consideration was the conduct of the parties and the overall fairness of the litigation. The court noted that both parties had acted in a manner that could be perceived as unreasonable at different stages of the litigation. The court also highlighted that neither party had made a genuine attempt to settle the dispute. Consequently, the court refused both applications for costs, finding that neither party was entitled to an order for costs under the applicable statutes.

The final orders of the court were that the applications for costs brought by both the miner and the landholders were refused. The court's decision underscored the importance of reasonableness and settlement efforts in determining costs in litigation under the relevant statutes.

Orders

Orders of the court

The applications for costs brought by both the miner and the landholders are refused.

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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