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

1. 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.

2. 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.”

3. 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.

4. 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 it would not be successful in seeking a mining lease and environmental authority over so much of the proposed application area, which included what I have previously referred to in my earlier decision as the old Australis lease area. 

5. The second element of Mr Barlow’s submission as to costs refers specifically to the actions of the Statutory Party in putting special conditions on the environmental authorities, specifically relating to MLA 70419, relating to the area of disturbance being limited to 0.5 hectares as well as conditions relating to access tracks. 

6. I will deal firstly with Mr Barlow’s application with respect to the advice Gregcarbil received as to the inability to apply for the environmental authority over the old Australis lease area, which is the area occupied by MLA 70447. The Mineral Resources Act 1989 (MRA) and the Environmental Protection Act 1994 (EPA) are an attempt to streamline the application processes for mining leases in this State, as can be shown from many previous decisions of this Court, and I refer in particular to a decision of mine in Donovan v Struber & Ors.[2]

   [2] [2011] QLC 45.

7. Essentially cases are brought before this Court by way of referral. A referral comes from an individual employed by the department administering the MRA who is known as a Mining Registrar, or at least at the relevant time was under such a terminology, and that person was responsible for referring MRA applications to this Court in circumstances where there were objections under the MRA to those applications. 

8. The other element of the work undertaken by a Mining Registrar is as a delegate of the Statutory Party with respect to the filing of applications for environmental authorities and the referral of objections received to the proposed draft environmental authorities, and again I am referring to the legislation as it existed at the time that the Gregcarbil applications were referred by the Mining Registrar as delegate of the Statutory Party to this Court. 

9. It is the actions of the officer holding the position of Mining Registrar specifically, which draws a complaint from Gregcarbil in that the material presented to me (in this regard I am referring specifically to material presented at trial and contained within the affidavit material of Mrs Graham and not making reference to the transcript evidence provided with Mr Barlow’s submissions today) does show a form of conduct on the part of the Statutory Party which led Gregcarbil to believe that it was not able to proceed with an application for an environmental authority over the old Australis lease area. 

10. I am in no doubt that the advice provided to Gregcarbil in this regard was wrong in point of law and the mere fact of how that application for the environmental authority with respect to MLA 70447 has proceeded before this Court is proof enough of that situation. The question, though, which flows from that position is: was it reasonable for Gregcarbil to act on the statements provided to it by the Mining Registrar as delegate for the Statutory Party? 

1. I find myself in a vexed position in this regard. It is clearly the functions of the Mining Registrar, when one considers the objects of the MRA, to assist miners with undertaking activities of mining in this State. However, as I have also pointed out in my substantive reasons for decision in this matter, there are quite different objects that have to be taken into account for applications for environmental authorities under the EPA.

2. It is almost schizophrenic to expect one officer to hold a position with two pieces of legislation which has two distinctly different main objectives in mind and I believe some of the difficulties that a Mining Registrar finds him or herself in must flow as a result of the dual responsibilities that were at least held at the time that these enquiries were made to the Mining Registrar, both under the MRA and as delegate under the EPA. 

3. Whilst from a policy perspective I can understand the reason for the streamlining of the process, that does not mean that there are not unfortunate consequences which flow as a result of the streamlining and I expect that in many ways Gregcarbil has attended at the office of the Mining Registrar for the normal process of having advice received from a Mining Registrar by a mining lease applicant in a mining matter without the subtleties of the fact that what is actually occurring, so far as this application for costs is concerned, was an application under the EPA for an environmental authority to a delegate of the Statutory Party performing separate functions under that legislation. 

4. There needs to be a nexus shown between the actions of the Mining Registrar as delegate and the question of costs incurred in these proceedings. Mr Barlow has attempted to draw such a nexus by his reference to the decision of Croft J in the Victorian case of Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd(No. 3).[3] Croft J said that:

   “… the knowledge of a party as a litigant in relation to past conduct may be relevant to assessment of the conduct of that party as a litigant.”

   [3] (2012) VSC 399 at 18.

5. In my view the observations of Croft J are even more appropriate when one considers the role of the Statutory Party in these proceedings as a model litigant before this Court.  In my view the comments expressed by Croft J have widened the scope of conduct during litigation somewhat, but I am inclined to agree with the submissions made by Mr Loos on behalf of the Statutory Party that the nexus between that conduct and the litigation in the proceedings needs to still have more direct relationship than that as found in the case at hand. 

6. The matter, though, is far from black and white, given that the proceedings with respect to MLA 70419 had been on foot for some time and were, as I understand it, on foot at the time that the incorrect advice was provided by the Mining Registrar to Gregcarbil. 

7. On balance, I am not satisfied that the conduct of the Statutory Party during the proceedings in this case are such as to warrant an award for costs in these proceedings, though I must stress, I have come to this conclusion on balance only and remain concerned as to advice that is provided by Mining Registrars when operating in a position as delegate to the Statutory Party, given the responsibilities of Mining Registrars under the MRA to facilitate mining in this State. 

8. Put simply, I completely understand and appreciate the reason why the miner in this case followed the advice provided by the Mining Registrar as regards the non-availability of taking out an environmental authority over the old Australis lease site. However, I am compelled to apply the law of this State and the technical way these matters could have been more properly before me as matters in a proceeding would have been for Gregcarbil to have made an application over the old Australis site at that time, and in effect, challenged the Statutory Party to either accept the application and make a draft environmental authority, or reject the application and then have recourse by Gregcarbil to the legal proceedings to challenge such refusal. 

9. I expect that for Gregcarbil my rulings in this regard will appear to be somewhat against the justice and spirit of the matter but, in my view, this is a clear case where I am compelled to apply the clear principles of law and am duty bound to do so.

10. I next have to consider the actions of the Statutory Party in specifically allowing for an area of disturbance in the original environmental condition with respect to MLA 70419 of only 0.5 of a hectare. As I have previously expressed in my substantive reasons for decision, an area of 0.5 of a hectare in all real terms amounts to no area of mining. 

11. Had Gregcarbil initially provided the Statutory Party with all of the material, which it ultimately did provide the Statutory Party with through Mr Fletcher’s evidence as presented to this Court, then I would have had no hesitation in ordering that the costs of Gregcarbil be met as a consequence of the Statutory Party incorrectly discharging its obligations by making such a small allowance for an area of disturbance. 

12. However, that is not the case. It comes down to a matter of degree as to whether it was reasonable to make the area of disturbance 0.5 of a hectare, or whether it should have been two hectares or some other amount, but I fear that if this point was to be litigated on a question of costs by way of further evidence or affidavit material, none of which had been put on by any of the parties, then all that would happen would be all of the parties to these proceedings would be burdened by the expenditure of additional costs with no good outcome for anyone. That is not what I want to see happen. 

1. Accordingly, strictly on the material before me and in light of my findings in the substantive reasons for decision, in my view, I find that the actions of the Statutory Party were on balance reasonable in limiting the area of disturbance and the special provisions as to tracks in such a way as to, for want of a better term, excite the interest of Gregcarbil so as to cause Gregcarbil to provide further information to the Statutory Party so that it could make a more informed decision with respect to the application. The detailed material should have been provided by Gregcarbil to the Statutory Party in the first place.

2. Finally, I should point out that, of course, there is no automatic or overriding principle that costs should follow the event in Land Court matters, and even if there were, in the case at hand, I find it difficult to determine who was a winner or a loser in the substantive proceedings before me.  In many respects all parties, including objectors, and in that regard I include Gregcarbil as an objector and as a party, have had elements of success in these proceedings. 

3. The proceedings were difficult; the litigation was difficult and the legal representatives for each party were put to considerable time, expense and trouble in working their way through such a complex case, given the size of the mining operations involved. 

4. I have been greatly assisted by each of the legal representatives who have appeared before me and rather than attacking any of those legal representatives for their conduct and for the manner in which their parties have presented themselves to this Court, I commend all of the parties for the manner in which they have presented their cases to this Court. That includes Gregcarbil and the Statutory Party specifically and it also includes Gregcarbil in bringing this costs application for, as I have indicated, I understand the reasoning why such costs application has been brought. 

5. For the reasons that I have set out above it follows that, in my view, I have little option but to reject the application for costs in these matters. Accordingly, the order will be that there shall be no order as to costs with respect to these matters. 

Orders

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

P A SMITH

MEMBER OF THE LAND COURT