Hancock Coal Pty Ltd v Cassoni (No. 5)

[2014] QLC 33

LAND COURT OF QUEENSLAND

CITATION:

Hancock Coal Pty Ltd v Cassoni (No. 5) [2014] QLC 33

PARTIES:

Hancock Coal Pty Ltd
(applicant)

v

Fiorella Paola Cassoni
(objector)

FILE NOs:

MRA082-13
EPA083-13

DIVISION:

General Division

PROCEEDING:

Application by objector for costs

DELIVERED ON:

24 October 2014

DELIVERED AT:

Brisbane

HEARD ON:

Heard on the papers
Submissions closed 20 May 2014

HEARD AT:

Brisbane

ACTING PRESIDENT:

PA Smith

ORDERS:

1.    Hancock Coal Pty Ltd pay 50% of Ms Cassoni’s costs to be agreed, or failing agreement, to be assessed.

2.    Subject to any restrictions that may be applied to Ms Cassoni’s costs on assessment, Ms Cassoni be paid 50% of her costs on the standard basis.

CATCHWORDS:

Mineral Resources Act 1989
Environmental Protection Act 1994
Land Court Act 2000
Uniform Civil Procedure Rules 1999

COSTS – s 34 Land Court Act 2000 – objections to mining lease application and associated environmental authority – factors governing exercise of discretion – unfettered discretions – reasonableness of parties – whether objection raised in the public interest – application for costs allowed in part

Anson Holdings Pty Ltd v Wallace & Anor (No. 2) (2010) 31 QLCR 130
Donovan v Struber & Ors (No. 4) [2013] QLC 14
Dunn v Burtenshaw & Ors (2011) 32 QLCR 270
Gregcarbil Pty Ltd v Backus & Ors (No. 2) (2013) 34 QLCR 253
Hancock Coal Pty Ltd v Kelly & Ors and Department of Environment and Heritage Protection (No. 4) [2014] QLC 12
Mayton v Kennett [2014] NSWSC 116
Mentech Resources Pty Ltd v MCG Resources Pty Ltd (In Liq) & Ors (No. 2) (2012) 33 QLCR 43
Peabody West Burton Pty Ltd & Ors v Mason & Ors (No. 2) [2013] QLC 12
PT Limited and Westfield Limited v Department of Natural Resources and Mines (2007) 28 QLCR 295
Xstrata Coal Queensland Pty Ltd & Ors v Friends of the Earth – Brisbane Co-Op Ltd (No. 2) (2012) 33 QLCR 409

APPEARANCES:

Heard on the papers
Written submissions filed by Ms Cassoni and Hancock Coal Pty Ltd

Background

1. On 8 April 2014 I delivered my decision in the matter of Hancock Coal Pty Ltd v Kelly & Ors and Department of Environment and Heritage Protection (No. 4).[1] That decision dealt with the hearing of an application for a mining lease (MLA) and related environmental authority (EA) by Hancock Coal Pty Ltd (Hancock) and objections thereto by a number of objectors including Fiorella Paola Cassoni (Ms Cassoni).

   [1][2014] QLC 12.

2. In matters such as these, it is the role of the Court to make recommendations to the relevant Minister for the Mineral Resources Act 1989 (MRA) and Environmental Protection Act 1994 (EPA) respectively.

3. I recommended in the alternative that the MLA be rejected and the EA refused, or that they both be granted with certain conditions, including conditions favourable to Ms Cassoni.

4. As I was in some doubt as to whether I had power to make recommendations in the alternative, I indicated in my reasons that, should it be that I lack such power, then my recommendations would be that the MLA be rejected with the EA refused.[2]

[2]Hancock [2014] QLC 12 [426].

Application for Costs

1. Following the delivery of the decision, orders were made relating to any applications that may be made for costs. Subsequently, three general applications were made to the Court, of which two have been resolved between the respective parties. There remains for consideration the application made by Ms Cassoni for orders that Hancock “pay on the standard basis the costs of Fiorella Paola Cassoni of and incidental to the proceeding, including reserved costs, to be assessed”.[3]

   [3]Application 29 April 2014 p 2.

2. In response, Hancock seeks an order that there be no order as to costs.

Relevant Legislation

1. The source of the Court’s power to award costs is found in 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)   An order made under subsection (1) may be made an order of the Supreme Court and enforced in the Supreme Court.

   (4)   For subsection (3), it is enough to file the order in the Supreme Court.

   (5)   The court may, if it considers it appropriate, order the costs to be decided by the appropriate assessing officer of the Supreme Court.

   (6)   If the court makes an order under subsection (5), the assessing officer may decide the appropriate scale to be used in assessing the costs.”

Ms Cassoni’s Submissions

1. Ms Cassoni summarised her submissions as follows:[4]

   [4]Submissions Ms Cassoni 29 April 2014.

   “1.I am a shareholder of Populnea Pty Ltd that owns Glen Innes Station, which is also known as the Bimblebox Nature Refuge (‘Bimblebox’). I objected to the applicant’s project in my role as one of the custodians of Bimblebox.

   2.I have incurred legal, expert and travel expenses at various times in pursuing my objection.

   3.So far as I am aware, this is the first time the Land Court has recommended a project of this scale be rejected. This is a highly significant recommendation and an invaluable precedent for future mining matters.

   4.The alternative recommendations imposing conditions protecting groundwater from the uncertainty of the applicant’s modelling will provide incalculable comfort to landowners impacted by direct or cumulative impacts of the applicant’s project.

   5.In the absence of an adequate and agreed made good agreement the custodians of Bimblebox were required to object to the project pursuant to the terms of the Conservation Agreement with the Queensland Government governing the creation of the Refuge.

   6.The applicant filed additional material with the Court concerning surface water and I did not proceed with this objection at the hearing.

   7.I proceeded on the basis of groundwater impacts and the recommendations of the Court support the fact that my objection to this project was grounded in very real concerns about the science behind the proposal and the applicant’s groundwater modelling.

   8.The ecology concerns I raised are intrinsically linked to groundwater, as the honourable Court noted.

   9.The Brimblebox Nature Refuge is in the difficult position of being both surrounded by and within proposed mining areas. The limited income from grazing activities – that are primarily carried out to reduce fuel load rather than for profit – are used to maintain, manage and improve the Refuge. Bimblebox incurs considerable expenses each year in maintaining and enhancing its conservation values. Bimblebox does not receive any government assistance and has to support itself financially.

   10.Bimblebox did not come to the nuisance – the project proponents elected to apply for a mining lease in this area and either were, or should have been, aware of the surroundings.

   11.I am not seeking costs to in any way punish the applicant – I merely wish to recover some of the expenses incurred in raising issues in this Court that resulted in recommendations that will either seek the project not receive approval or serve to provide groundwater security through the alternative recommendations that would not otherwise have been imposed on the project.

   12.While no wishing to revive issues raised in my submissions, if the project proponent had adhered to the Terms of Reference and prepared a cumulative impact assessment including the groundwater impacts of the Alpha, Kevin’s Corner and other projects in the Galilee Basin, a great many of the groundwater concerns with this project raised by a number of objectors could have been properly addressed by this modelling.

   13.It is not unreasonable in all of the circumstances, particularly in light of the recommendations of the Court, that the project proponent bear some of the costs I incurred in raising grave concerns with the project’s groundwater modelling and potential impacts.”

   [footnotes omitted]

1. Ms Cassoni then went on to provide detailed submissions, noting various authorities. She detailed a number of considerations which the Court had to take into account in the costs application, they being:  the outcome of the objection; the behaviour of the applicant and objector; the statutory right to object; whether the objections are technical or address substantive matters; the degree of prejudice to be suffered by an objector if the objection is not pursued; and the public interest.

2. As to the outcome of the litigation, Ms Cassoni submits that the recommendations made are in support of her primary objections which related to groundwater security and ecology. She submits that Hancock failed to gain the orders that it was seeking.

3. As regards behaviour, Ms Cassoni in effect argues that both herself and Hancock acted properly throughout the Court proceedings. Her one area of complaint against Hancock in this regard does not relate to the actions of Hancock before the Court.

4. Regarding the statutory right to object, Ms Cassoni asserts that she not only has such a right, but that, due to the nature of the Bimblebox Refuge, she has an obligation, under Commonwealth and State mandate, to take action to protect Bimblebox from harm.

5. Ms Cassoni then goes on to assert that her objections were substantive, and not technical, in nature. She also says that she would have suffered prejudice had the objections not been pursued, through potential harm to Bimblebox. Specifically, she says that the alternate recommendations relating to water licensing, monitoring and make good agreement for Bimblebox would probably not have been made without her objections.

6. Finally, Ms Cassoni says that, as her objections were seeking the protection of Bimblebox, they were clearly in the public interest given that Bimblebox is a Commonwealth and State nature refuge, pointing in particular to the important role Bimblebox plays in protecting significant species, scientific research, and environmental monitoring.

Hancock’s Submissions

1. By its submissions, Hancock effectively agrees with the bulk of the legal principles put forward by Ms Cassoni, but joins issue with Ms Cassoni as to how those legal principles are to be applied in this particular case.

2. As to the degree of success of the parties, Hancock points to my reasons at paragraph [423] where I noted the potential for all parties to be dissatisfied with my recommendations. Further, Hancock points out that Ms Cassoni did not succeed on all objections which she made.

3. Hancock notes that Ms Cassoni abandoned objections relating to climate change, economics, and public interest; did not proceed with objections relating to the permanent final void; and did not lead evidence, cross-examine, or make substantive submissions on her surface water objections, ultimately stating in her reply submissions that she did not contest the point.

4. Hancock contends that it was put to unnecessary expense and effort in responding to objections which were not actively maintained, and submits that for those reasons, Ms Cassoni’s application for costs should be refused.

5. Hancock then goes on to make alternate submissions that, should Ms Cassoni be awarded costs, there should be a costs reduction based on the outcome of the issues.

6. As regards its conduct in the proceedings, Hancock takes issue with the point made by Ms Cassoni, indicating that that formed part of without prejudice negotiations.

7. As to the statutory right to object, Hancock points out that Ms Cassoni is not the actual owner of Bimblebox, the owner being Populnea Pty Ltd. In any event, Hancock asserts that the right to object is not a factor weighing either way in respect of the exercise of the discretion in this case.

8. Hancock points to authorities which it says show that something more is required in a costs application than mere “public interest litigation”. Hancock notes that Ms Cassoni seeks to show that more than a bare public interest litigation exists in this case by asserting that the decision ‘breaks new ground’; ‘is invaluable for an understanding of the precautionary principle’; ‘protects the environment’; and ‘favours a significant section of the public’.

9. As to these points, Hancock says firsts that this decision applied previous interpretations of relevant legislation taken by this Court. Further, Hancock says that many Land Court cases have referred to the Precautionary Principle, noting in particular Gregcarbil Pty Ltd v Backus & Ors (No. 2).[5]

   [5](2013) 34 QLCR 253.

10. Ms Cassoni’s assertions regarding the protection of the environment and the decision favouring a significant section of the public are said by Hancock to be of little relevance and merely highlight the point that it is actually the narrower interest of Ms Cassoni that are being served directly, not the public interest.

11. Finally, Hancock notes that for part of the proceedings, Ms Cassoni was legally represented, and for other parts (including the actual hearing) she was not. Hancock refers to the decision in Mayton v Kennett,[6] submitting that that case is authority for the proposition that any costs order in favour of Ms Cassoni should be severely restricted for the period in which Ms Cassoni was not legally represented.

    [6][2014] NSWSC 116 at [144].

Relevant Authorities

1. I have set out the relevant authorities as to costs in a number of mining related matters, most notably in Peabody West Burton Pty Ltd & Ors v Mason & Ors (No. 2)[7] and Donovan v Struber & Ors (No. 4).[8] It is in my view appropriate to repeat again the views I expressed in those cases.

   [7][2013] QLC 12.

   [8][2013] QLC 14.

2. It is certainly clear that there is no automatic or overriding principle that cost orders should follow the event in Land Court matters. However, as the relevant authorities make clear, the outcome of the litigation informs the decision as to the exercise of the discretion. As the Land Appeal Court said in the decision of Mentech Resources Pty Ltd v MCG Resources Pty Ltd (In Liq) & Ors (No. 2):[9]

   [9](2012) 33 QLCR 43 at [3] – [4].

“[3] Section 72(1) of the Act provides that s34, amongst other provisions, applies “with necessary changes” to the Land Appeal Court and a “reference in the applied sections to the Land Court is taken to be a reference to the Land Appeal Court”.

[4]Hence the Land Appeal Court may order costs “as it considers appropriate”. The discretion to award costs is unfettered. However the rule often followed, and the rule incorporated in r 689 of the Uniform Civil Procedure Rules 1999, is that costs follow the event. That rule, while it does not govern the exercise of the discretion here, nonetheless informs it, as there is justice in that approach. It protects those put to unnecessary and substantial expense at the behest of others. There is no reason here why costs should not follow the event in the usual way.”

1. Further, in PT Limited and Westfield Limited v Department of Natural Resources and Mines[10] the Land Appeal Court said:

   [10](2007) 28 QLCR 295.

“[20] The common law principle which has long dominated the exercise of the discretion to award costs that they “follow the event” has been incorporated into r 689 of the Uniform Civil Procedure Rules 1999 but is found neither in the VLA nor the Land Court Act. In interpreting s 66 the Court should not therefore be bound by any presumptive rule or principle - the discretion is complete, but must be exercised judicially.

…

[22]There may be any number of factors which a court vested with a general jurisdiction to award costs might entertain. One of those factors is the outcome of the litigation. Another might be the overall purpose of the legislation. Contemporary legislation in Queensland tends to make express provision about costs if it is thought desirable that parties not be discouraged from seeking to assert rights by the fear of adverse costs orders.”

1. The Land Appeal Court considered the issue of costs with respect to mining lease matters under the MRA in the case of Anson Holdings Pty Ltd v Wallace & Anor (No. 2)[11] and had this to say:

   [11](2010) 31 QLCR 130 p 416.

“[9] When exercising the discretion under s.34(1) with respect to mining lease applications, it is legitimate for the Court to take into account the fact that the landholder who objects to the grant of a mining lease is exercising a statutory right to object, in circumstances where the grant of a mining lease could lead to an unwelcome intrusion on to the landowner’s property. Clearly, landholders who face having their way of life and operations on their land changed, sometimes dramatically, through mining activities in many respects beyond their control, should not be discouraged from pursuing proper concerns in an appropriate manner before both this Court and the Land Court. Similarly the conduct of the miner in the objection and appeal process is relevant.

[10]The respondent’s success in the appeal proceedings is to be balanced against those factors. While the rule that costs follow the event is not automatically applied in this jurisdiction, that rule is one which is deeply embedded in our law and that is a factor to be taken into account when exercising our discretion under s.34(1).”

1. I also note that, in the Land Court decision of Xstrata Coal Queensland Pty Ltd & Ors v Friends of the Earth - Brisbane Co-Op Ltd (No. 2),[12] President MacDonald observed that, in that case:[13]

“The proceedings determined and clarified important issues of law affecting the community generally and the proceedings have affected the development of the law generally which should reduce the need for future litigation. As such they have the character of test case proceedings.”

[12](2012) 33 QLCR 409.

[13]Ibid at [30] p 416 at 30.

1. President MacDonald had earlier in that decision referred to the Land Appeal Court decision of Dunn v Burtenshaw & Ors[14] and in particular to the reference in that case to the Australian Law Reform Commission Report No. 75 titled “Costs Shifting - Who Pays for Litigation”, making specific reference to recommendation 45. Referring to the conditions that should be present in considering the public interest of proceedings, the report said the following should be taken into account:

   “1.the proceedings will determine, enforce or clarify an important right or obligation affecting the community or a significant sector of the community.

   2.the proceedings will affect the development of the law generally and may reduce the need for further litigation.

   3.the proceedings otherwise have the character of public interest or test case proceedings.”

   [14](2011) 32 QLCR 270.

2. Although noting that the Law Commission Report was referring to Federal Courts or Tribunals, the Land Appeal Court in Dunn considered the observations as apposite to the proceedings before that Court.[15]

   [15]Dunn at [31] p 273.

3. The Land Appeal Court in Dunn ultimately made a limited award of costs against Mr Dunn but considered that as the principal point in that case was one that “had not previously been tested and one in respect of which there was no guiding decision he ought be given the benefit of the doubt with respect to the prospect of a costs order being made against him”.[16] It did so notwithstanding the reservations the Court held as to Mr Dunn’s conduct.[17]

   [16]Dunn at [33] p 273.

   [17]Ibid.

Determination

1. The first significant issue to be considered is the dispute between the parties as to the outcome of the litigation.

2. Hancock is clearly correct when it says that Ms Cassoni was not successful on all of her objections. This is, effectively, conceded by Ms Cassoni.

1. I agree that Hancock was put to unnecessary trouble and expense by Ms Cassoni with respect to those objections which she abandoned pre-hearing, as well as those on which she did not lead any evidence at the hearing. However, as was abundantly clear to me at both pre-trial directions and throughout the hearing, Ms Cassoni’s actions in not pursuing at least some of her objections came as a result of her being satisfied of Hancock’s position following the presentation to her of additional information by Hancock in response to her objections.

2. It is of interest to note that Hancock did not apply for any costs against Ms Cassoni pursuant to s 268(9) of the MRA with respect to those objections which she abandoned. Hancock has, however, sought to have the abandonment and non-pursuit of some objections to weigh as a factor against the exercise of the discretion in her favour under s 34 of the LCA.

3. It was clear throughout the hearing that the key thrust of Ms Cassoni’s objection was the protection of Bimblebox and its ecology through the security of groundwater and/or obtaining a make good agreement. Taken as a whole, and in particular noting my recommendations and my indication that, should alternate recommendations not be appropriate, then my recommendation is that the MLA be rejected and the EA be refused, I am in no doubt that Ms Cassoni was successful in her endeavours to obtain recommendations which support the protection of Bimblebox and its ecology.

4. I am satisfied that Ms Cassoni conducted herself properly in all instances where she appeared before me. I am also satisfied of Hancock’s behaviour, save for the comments I made in my substantive decision. Specifically, the allegations made by Ms Cassoni against Hancock for its stance in without prejudice negotiations cannot be taken into account in this decision.

5. As to issues regarding public interest, in my view Ms Cassoni’s actions in supporting her objections can properly be viewed as a mix of her private interests and the public interest.

6. In all the circumstances, I consider that Ms Cassoni has had substantial success with respect to her key areas of objection before this Court. She should recover her costs. However, it is also true that she abandoned some objections and did not proceed with others. Not only should she not recover her costs with respect to those objections, but the trouble and expense to which Hancock was put as a consequence of those objections should be taken into account.

7. Allowing Ms Cassoni her costs, but discounting those costs due to the objections which she abandoned and/or did not proceed with, an order should be made that Hancock pay 50% of Ms Cassoni’s costs to be agreed or, failing agreement, to be assessed.

8. I note that Hancock says that Ms Cassoni’s costs should be substantially restricted for the time that Ms Cassoni was not legally represented. Although I do tend to favour the view in this regard of Ms Cassoni as expressed in her reply over that of Hancock, I am of the opinion that the appropriate time to address that issue is on the assessment of costs.

9. Save for any restrictions that may be applied to Ms Cassoni’s costs on assessment, her costs are awarded on the standard basis.

Orders

1.Hancock Coal Pty Ltd pay 50% of Ms Cassoni’s to be agreed or, failing agreement, to be assessed.

2.Subject to any restrictions that may be applied to Ms Cassoni’s costs on assessment, Ms Cassoni be paid 50% of her costs on the standard basis.

PA SMITH

ACTING PRESIDENT OF THE LAND COURT