Gold and Copper Resources Pty Limited v Hon Chris Hartcher MP, Minister for Resources and Energy, Special Minister (No 3)
[2014] NSWLEC 138
•19 August 2014
Land and Environment Court
New South Wales
Medium Neutral Citation: Gold and Copper Resources Pty Limited v Hon Chris Hartcher MP, Minister for Resources and Energy, Special Minister (No 3) [2014] NSWLEC 138 Hearing dates: 19 August 2014 Decision date: 19 August 2014 Jurisdiction: Class 8 Before: Pain J Decision: 1. The Applicant is to pay the Respondents' costs of the proceedings as assessed for the period up until 15 August 2013, on the ordinary basis.
2. The Applicant is to pay the Respondents' costs of the proceedings as assessed for the period from 15 August 2013, on an indemnity basis.
Catchwords: COSTS - exercise of discretion to award part of costs on an indemnity basis pursuant to r 42.15A of the Uniform Civil Procedure Rules 2005 following offer of compromise sent pursuant to r 22.26 Legislation Cited: Uniform Civil Procedure Rules 2005 r 22.26, r 42.15A Cases Cited: Calderbank v Calderbank [1975] 3 All ER 333
Gold and Copper Resources Pty Ltd v Minister for Resources and Energy [2014] NSWLEC 30Category: Costs Parties: Gold and Copper Resources Pty Limited (Applicant)
The Hon Chris Hartcher MP, Minister for Resources and Energy, Special Minister (First Respondent)
Newcrest Operations Limited (Second Respondent)Representation: No appearance (Applicant)
Mr T Hale SC with Mr T Waterson (First Respondent)
Mr S Laurance (Second Respondent)
Hones La Hood (Applicant)
Crown Solicitor's Office (First Respondent)
Allens Linklaters (Second Respondent)
File Number(s): 80869 of 2012
EX TEMPORE Judgment
Before me is an application for costs following my decision in Gold and Copper Resources Pty Ltd v Minister for Resources and Energy [2014] NSWLEC 30 on 1 April 2014. In that decision I dismissed all the grounds of the judicial review challenge by the Applicant against the Minister, Mr Hartcher, Minister for Resources and Energy, the First Respondent, and Newcrest Mining, the Second Respondent.
Both Respondents now seek the same order for costs, namely that the Applicant pay the Respondents' costs of these proceedings until 14 August 2013 on an ordinary basis and from 15 August 2013 on an indemnity basis. I have read in support of the application an affidavit of Ms Stacy Hahn, solicitor for the Second Respondent affirmed on 10 April 2014, relied on by both Respondents in these proceedings.
In that affidavit various offers of compromise made by the Respondents to the Applicant are referred to. The particular matters that I will advert to are a letter from Allens sent on behalf of both Respondents, that is the Minister and Newcrest, to the Applicant's solicitor dated 14 August 2013. It makes an offer of compromise for the purposes of the Uniform Civil Procedure Rules 2005 (UCPR) and includes formal offers of compromise. Probably more importantly for today's application is a letter of 8 October 2013 sent by Allens on behalf of both Respondents at p 34 of that affidavit, to the Applicant's lawyers detailing a formal offer of compromise and the basis under the UCPR for doing so. It makes an offer to compromise the Applicant's claim in accordance with r 22.26 of the UCPR. The offer related to the whole of the Applicant's claim in the proceedings and the First and Second Respondents' offer to compromise the whole of the Applicant's claim on the terms that the amended summons filed on 25 October 2012 be dismissed with no order as to costs.
Ultimately that was the result of the judicial review proceedings, as contained in my substantive judgment in the matter. It therefore appears that the offer having been made under r 22 of the UCPR that r 42.15A comes into play. This rule provides for costs consequences where a formal offer has been made in accordance with r 22.26(3)(a)(i). Rule 42.15A is now relied on by both Respondents as providing the basis for the costs orders sought. The offer of compromise made under r 22.6 was not accepted and the Respondents obtained an order or judgment no less favourable to them than the terms of the offer. The Respondents submitted that unless the Court otherwise orders satisfaction of these elements entitles the Respondents to the special orders specified in r 42.15A(2)(a) and (b).
In the absence of submissions from the Applicant no application is made for such an otherwise order. It would appear that r 42.15A allows for the orders sought by the Respondents today.
The Applicant has not attended today. The matter was called outside the court and there was no appearance by the Applicant. I have before me in exhibit 1 a letter from the Applicant's solicitor advising that his instructions are to neither consent nor oppose the orders sought and advising that he would not be appearing at the return of the motion that I am currently hearing. As the Second Respondent's counsel identified, in correspondence from the Respondents' solicitors the terms of the motion were well and truly aired to the Applicant's solicitor and he has written the letter in exhibit 1 in full knowledge of what is being applied for today.
It seems to me that r 42.15A applies. The Applicant is not here to make any submissions as to why I should make an otherwise order. I can and should make the orders sought in relation to both Respondents today. I note that the Second Respondent's counsel has also identified other grounds which would appear to apply in relation to the letters from the solicitors of 14 August 2013 and 8 October 2013 to the extent that these are also to be considered as Calderbank offers (Calderbank v Calderbank [1975] 3 All ER 333). That would also form another basis for the award of costs but I do not need to address that additional basis.
The Court makes the following orders;
(1) The Applicant is to pay the Respondents' costs of the proceedings as assessed for the period up until 15 August 2013, on the ordinary basis.
(2) The Applicant is to pay the Respondents' costs of the proceedings as assessed for the period from 15 August 2013, on an indemnity basis.
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Decision last updated: 09 September 2014
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