Dunn v Burtenshaw & Ors

LAND APPEAL COURT OF QUEENSLAND

CITATION:

Dunn v Burtenshaw & Ors [2011] QLAC 0005

PARTIES:

Gary Dunn
(Appellant)

v.

Rosemary Anne, Garry Frederick & Cameron Grenville Burtenshaw
(Respondents)

and

Chief Executive, Department of Environment and Resource Management
(Statutory Party)

FILE NO:

LAC006-10

DIVISION:

Land Appeal Court of Queensland

PROCEEDING:

Application for Costs

ORIGINATING COURT:

Land Court of Queensland

DELIVERED ON:

5 September 2011

DELIVERED AT:

Cairns

HEARD AT:

Cairns

THE COURT

The Honourable Justice Jones AO
His Honour WL Cochrane, Member
His Honour WA Isdale, Member

ORDER:

1.    The appellant pay the respondents’ costs limited to the sum of $2,752.75.

CATCHWORDS:

Land Court Act 2000 ss.34 and 72 – Costs –

Oshlack v Richmond River Council (1998) 193 CLR 72
McClure v City of Stirling [No. 3] (2009) 170 LGERA 138

APPEARANCES:

No appearances.  Application for costs dealt with on the papers.

*     This is an amended decision and replaces the original decision of 5 September 2011   

Background

1. THE COURT:  This is a decision in respect of an application brought by the respondents, who for convenience shall hereafter be referred to as the Burtenshaws, against the appellant Mr Dunn seeking an order that Mr Dunn should pay the costs both in respect of the initial decision of the Land Court delivered on 13 April 2010 (the original decision) and the hearing before this Court which occurred in Cairns on 14 September 2010. 

2. The original decision resulted in a recommendation being made to the Honourable the Minister for Natural Resources, Mines and Energy and Minister for Trade to grant ML 20541 and ML 20542 on land described as Lot 43 on SP 106048 and Lot 219 on AP 2662, the property otherwise being described as Coolgarra Station located at Mt Garnet within the Mareeba Mining District.

3. The Burtenshaws are the owners of Coolgarra Station.

4. Mr Dunn had appealed against the recommendation of the Land Court. 

5. Although it was not entirely clear on the material filed, it seemed that the appeal was brought in reliance upon s.64 of the Land Court Act 2000.

6. Neither party was represented by counsel or solicitors at the hearing, save that the statutory party, Chief Executive, Department of Environment and Resource Management, was represented by Mr Kwan, a solicitor.  No orders are sought by or against the statutory party.

7. Notwithstanding that, the Burtenshaws appeared represented by Mrs Burtenshaw.  She had earlier in accordance with orders made by this Court filed submissions which were clearly identified as having been prepared by Counsel.

8. In the ultimate decision of this Court, those submissions were accepted. The thrust of the submissions was to the effect that the "decision" appealed against being the recommendation made pursuant to s.269 of the Mineral Resources Act 1989 was, in fact and at law, not a decision of the sort contemplated by s64 of the Land Court Act. 

9. Section 64 provides as follows:

   "64  Right of appeal to Land Appeal Court

   A party to a proceeding in the Land Court may appeal to…