Haack v Paczkowski

[2013] QLC 45

0BLAND COURT OF QUEENSLAND

CITATION:

Haack v Paczkowski & Anor [2013] QLC 45

PARTIES:

Keith Haack
(applicant)

v.

Jerry Paczkowski and Mary Paczkowski
(respondents)

FILE NO:

MRA392-12

DIVISION:

General Division

PROCEEDING:

Application for costs

DELIVERED ON:

25 July 2013

DELIVERED AT:

Brisbane

HEARD ON:

HEARD AT:

On the Papers
Submissions closed 18 February 2013

N/A

MEMBER:

PA Smith

ORDERS:

The respondents are ordered to pay the applicant’s costs in this matter, fixed in the sum of One Hundred Dollars ($100).

CATCHWORDS:

Costs – s.78(5) Mineral Resources Act 1989 – withdrawal of objections to mining claim application –claim for costs by self-represented litigant – costs awarded for outlays incurred in relation to the proceeding

Land Court Act 2000
Mineral Resources Act 1989, s.78(5)

APPEARANCES:

Mr Haack, self-represented
Wellners Lawyers for the respondents

Background

1. On 14 August 2012, the Mining Registrar, Emerald, forwarded to the Court an application by Keith Haack (“the miner”) for Mining Claim 72249 (“MC 72249”), to which objections had been lodged by Jerry Paczkowski and Mary Paczkowski (“the objectors”).

2. Following a directions hearing on 15 October 2012, a timetable was set down to prepare this matter for hearing, with the hearing to be held in Emerald on or about Thursday 15 November 2012.

3. On 17 October 2012, the objectors wrote to the Land Court advising that due to commitments and health concerns the objectors were unable to attend at Emerald for the objections hearing of this matter. Although the objectors stated their view that they believed a certain track relating to the mining claim should be kept open, they nevertheless chose to formally withdraw their objections to the miner’s application for MC 72249.

The miner’s claim for costs

1. By general application filed 19 November 2012, the miner sought an order for costs against the objectors pursuant to s.78(5) of the Mineral Resources Act 1989 (“the MRA”).

2. The miner’s application sought costs for “extra costs incurred from 24/5/12 to 30/11/12”.F[1]F Under those parts of the general application which relate to orders, other relief sought and grounds, the miner stated as follows:F[2]

   “For Paczkowski to stop his abuse to me and leave me in peace

   Worry and severe depression
   

   [1]     See page 1 of General Application.

   [2]     See General Application, page 2.

   Now on 2 tablets for heart for first time in life”

3. The miner also provided affidavit evidence in support of his claim for costs, in which he said as follows:

   “Keith Haack declare that I am in need of costs for objection placed on my MC 72249 as it has stopped me from starting up an underground mine

   Costs for period of 7 months

   Extra trips to Emerald from Reward for all things pertaining things for court case

   5 trips @ $80 each  $400.00
   Rent on gas bottles held to complete construction  $150.00
   Cost of gathering evidence
   photos paper work ect  $150.00
   Extra tips to doctors for depression and worry

   Chemists drugs ect  U$200.00

   $900.00”

4. Both parties have agreed to this matter being heard on the papers without the need for an oral hearing. The only sworn evidence before the Court is the affidavit of the miner dated 14 November 2012 referred to above.

5. Wellners Lawyers for the objectors have submitted that the only reason that the objectors withdrew their objections was because of “personal reasons”. The solicitors also point out that, when this Court referred the application for MC 72249 back to the Mining Registrar, no order was made for costs.

6. The solicitors go on to point out that s.34 of the Land Court Act 2000 (“the LCA”) allows the Court to make an award of costs. They then go on to submit that it is not appropriate given the circumstances of this case for costs to be awarded. The solicitors submit as follows:F[3]

   “Even if costs were ordered, which they should not, Mr Haack being a self-represented litigant is not entitled to costs but is in certain circumstances, entitled to outlays. To be able to recover outlays Mr Haack like other litigants is required to itemise and support that itemisation by receipts.

   Taking the individual items claimed by Mr Haack in his affidavit, I make the following comments.

   1.     Claim for extra trips to Emerald. This is a vague claim and unsupported by any evidence. What did Mr Haack go to Emerald for? My instructions are that any Hearing was only attended by him via the medium of a telephone.

   2.     Rent of gas bottles are not an expense that is related to the costs of a Hearing before the Land Court. Mr Haack appears to be claiming some sort of opportunity lost cost which is not quantified. This matter only went as far as mediation and then was withdrawn by my client. Mr Haack attended by telephone.

   3.     The costs of gathering evidence is not a cost claimable save perhaps for the photograph produced by Mr Haack. What were those costs? Mr Haack has not descended into giving any details of those costs expended. The costs claimed are excessive for the photograph produced.

   4.     A doctor’s trips for alleged anxiety is not a cost in a proceeding. It is a quasi personal injuries claim which is not within the jurisdiction of the Land Court.”

   [3]     See Submissions, page 2.

7. In his submissions, the miner submits that the objections were frivolous as there was never any question of the objectors having access to their mining lease excluded. The miner claims that the objections were lodged for the purpose of delaying and frustrating the mining claim application that he had lodged.

Determination

1. As the general application shows, the application for costs is made pursuant to s.78(5) of the MRA. Section 78(5) provides as follows:

   “(5) The Land Court on the application of an applicant for a mining claim may award costs against an objector who withdraws the objection or does not pursue the objection at a hearing.”

1. As s.34 of the LCA makes clear, that provision applies “subject to the provisions of this or another Act to the contrary”. Clearly, s.78(5) of the MRA is a specific provision relating to costs in the precise circumstances at hand in this matter and accordingly it is that provision which governs the jurisdiction of the Court to award costs, not s.34 of the LCA.

2. I agree with the submissions of the solicitors for the objectors that, as a self-represented litigant, the miner is not entitled to legal costs but may be entitled to outlays. I note that the quantum of costs claimed in this matter is quite low, and that the costs claimed would quickly be far exceeded by costs of taxation were this Court to make an order that the objectors pay the miner’s costs by way of outlays with such sum to be determined by taxation.

3. The only sworn evidence that I have in this matter is from the miner. The circumstances of this case fall neatly within those contemplated by s.78(5) of the MRA. I am accordingly of the opinion that it is appropriate to make an award of costs representing only the outlays incurred by the miner.

4. Doing the best that I can on the material before me, I consider that the bulk of the items claimed by the miner to not properly fall within the legal definition of outlays for which costs orders can be made. However, I am satisfied that the miner has properly incurred costs during the course of these proceedings by way of photocopying, postage and the like.

5. In all the circumstances, I consider it appropriate to order that the objectors pay the miner’s costs by way of outlays fixed in the sum of One Hundred Dollars ($100).

Order

The respondents pay the applicant’s costs in this matter, fixed in the sum of One Hundred Dollars ($100).

P A SMITH

MEMBER OF THE LAND COURT