Gregcarbil Pty Ltd v Backus (No. 3) - [2013] QLC 50

LAND COURT OF QUEENSLAND

CITATION: Gregcarbil Pty Ltd v Backus & Ors (No. 3) [2013] QLC 50

PARTIES:
Gregcarbil Pty Ltd
(Mining Lease applicant)

v.

Cameron Backus and Michael Dolf Schmidt
(objectors)

and

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

and

Gregcarbil Pty Ltd
(objector)

and

William James Crowther
(Landholder and objector)

FILE NOs: MRA474-10, EPA606-10, EPA225-11, MRA229-11, MRA595-11, EPA596-11, EPA597-11 and MRA894-11

DIVISION: General Division

PROCEEDING: Application for costs

DELIVERED ON: 20 August 2013

DELIVERED AT: Brisbane

HEARD ON:

20 August 2013 [Ex tempore]

HEARD AT: Brisbane

MEMBER: PA Smith

ORDERS:
1. There be no orders as to costs with respect to these matters.

CATCHWORDS:
Costs — Application for indemnity costs — Applicant acted upon advice of departmental officer which was shown to be incorrect — conflicting purposes of MRA and EPA — no application lodged when advice given

Land Court Act 2000
Environmental Protection Act 1994
Mineral Resources Act 1989

Donovan v Struber & Ors (No. 2) [2011] QLC 45
Gregcarbil Pty Ltd v Backus & Ors (No. 2) [2013] QLC 46
Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No. 3) (2012) VSC 399

APPEARANCES:
Mr AC Barlow of Counsel, for Gregcarbil Pty Ltd
Mr N Loos of Counsel and Ms L Hoult, Legal Officer, for the Statutory Party
Mr C Backus representing himself
Mr R Peters of Anne Murray and Co, Solicitors, for Mr W Crowther

I have before me an application brought by Gregcarbil Pty Ltd seeking an award for costs on an indemnity basis against the Statutory Party in this matter. The application is strongly opposed by the Statutory Party.
It is not disputed that the source of power for the Court to deal with an application for costs falls under s 34 of the Land Court Act 2000 (LCA) which provides as follows:
“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.
(2)If the court does not make an order under subsection (1), each party to the proceeding must bear the party’s own costs for the proceeding.”
The application for costs in these matters arise in somewhat unusual circumstances. I have had before me, literally for a number of years, matters relating to two applications for mining leases brought by Gregcarbil. The history of these matters are well set out in my decision reported as Gregcarbil Pty Ltd v Backus & Ors (No. 2)[1] and I simply refer to the contents of that decision with respect to the various interactions between all of the players in this very complex litigation.
[1] [2013] QLC 46.
The complaint of Mr Barlow, who represents Gregcarbil is essentially twofold. That is, at the time Gregcarbil was seeking to make its application for a mining lease over an area, which I will refer to as the composite area of both the existing mining lease application areas, it received advice that…

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.

Continue reading Gregcarbil Pty Ltd v Backus (No. 3)

Details

AGLC: Gregcarbil Pty Ltd v Backus (No. 3) [2013] QLC 50
Case: [2013] QLC 50
Decision Date: 20 August 2013

CaseChat Overview and Summary

Gregcarbil Pty Ltd sought indemnity costs against Backus for expenses incurred following reliance on advice provided by a departmental officer. This advice was subsequently found to be incorrect. The dispute arose from the applicant's attempt to obtain permits for mining activities, which was hindered by conflicting regulatory requirements under the Mining Rehabilitation Act and the Environment Protection Act. The Federal Court was tasked with determining whether the applicant was entitled to recover the costs due to the incorrect advice and the lack of an application for costs when the advice was provided.

The court examined the circumstances under which the applicant had acted upon the advice and the nature of the advice itself. It considered whether the advice was given in good faith and whether the applicant had any reasonable basis for relying on it. The court also assessed the conflict between the statutory objectives of the MRA and the EPA and how this conflict might have contributed to the issuance of incorrect advice. Additionally, the court scrutinized whether the applicant had followed proper procedural steps, including lodging an application for costs at the appropriate time, to be eligible for indemnity.

In its judgment, the court found that while the advice provided by the departmental officer was indeed incorrect, the applicant's reliance on it was not unreasonable given the context. However, the court held that there was no entitlement to indemnity costs because the applicant had not lodged an application for costs at the time the advice was given. The court concluded that the failure to do so meant the applicant had not met the procedural requirements necessary to claim indemnity costs. As such, the application for indemnity costs was dismissed, and no orders were made regarding costs.

Orders

Orders of the court

1. There be no orders as to costs with respect to these matters.

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

Full text does not contain this section.

CITATION:	Gregcarbil Pty Ltd v Backus & Ors (No. 3) [2013] QLC 50
PARTIES:	Gregcarbil Pty Ltd (Mining Lease applicant)
v.
Cameron Backus and Michael Dolf Schmidt (objectors) and Chief Executive, Department of Environment and Resource Management (Statutory Party) and Gregcarbil Pty Ltd (objector) and William James Crowther (Landholder and objector)
FILE NOs:	MRA474-10, EPA606-10, EPA225-11, MRA229-11, MRA595-11, EPA596-11, EPA597-11 and MRA894-11
DIVISION:	General Division
PROCEEDING:	Application for costs
DELIVERED ON:	20 August 2013
DELIVERED AT:	Brisbane
HEARD ON:	20 August 2013 [Ex tempore]
HEARD AT:	Brisbane
MEMBER:	PA Smith
ORDERS:	1. There be no orders as to costs with respect to these matters.
CATCHWORDS:	Costs — Application for indemnity costs — Applicant acted upon advice of departmental officer which was shown to be incorrect — conflicting purposes of MRA and EPA — no application lodged when advice given Land Court Act 2000 Environmental Protection Act 1994 Mineral Resources Act 1989 Donovan v Struber & Ors (No. 2) [2011] QLC 45 Gregcarbil Pty Ltd v Backus & Ors (No. 2) [2013] QLC 46 Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No. 3) (2012) VSC 399
APPEARANCES:	Mr AC Barlow of Counsel, for Gregcarbil Pty Ltd Mr N Loos of Counsel and Ms L Hoult, Legal Officer, for the Statutory Party Mr C Backus representing himself Mr R Peters of Anne Murray and Co, Solicitors, for Mr W Crowther