Legend International Holdings Inc. v Taylor Aly Awaditijia (No 2)
[2014] QLC 24
•13 June 2014
LAND COURT OF QUEENSLAND
CITATION: Legend International Holdings Inc. v Taylor Aly Awaditijia & Anor (No 2) [2014] QLC 24 PARTIES: Legend International Holdings Inc
(applicant)v James W Taylor Aly Awaditijia
(respondent)and
Chief Executive, Department of Environment and Heritage Protection
(statutory party)FILE NO: EPA81-13 DIVISION: General Division PROCEEDING: Application for costs of interlocutory application DELIVERED ON: 13 June 2014 DELIVERED AT: Brisbane HEARD ON: Written submissions HEARD AT: Brisbane PRESIDENT: CAC MacDonald ORDER: Each party is to bear its own costs of the strike out application. CATCHWORDS: Costs - application to strike out objection and particulars - s 34 Land Court Act 2000
Environmental Protection Act 1994
Land Court Act 2000Anson Holdings Pty Ltd v Wallace (2010) 31 QLCR 74
BHP Queensland Coal Investments Pty Ltd v Cherwell Creek Coal Pty Ltd (2009) 30 QLCR 140
BHP Queensland Coal Investments Pty Ltd v Cherwell Creek Coal Pty Ltd (No 2) (2009) 30 QLCR 173
Legend International Holdings v Awaditijia & Anor [2013] QLC 66COUNSEL: Ms JS Brien, for the respondent SOLICITORS: Mr A Chay, Merman Legal, for the applicant
Mr C Hardie, Just Us Lawyers, for the respondent
Ms L Hoult, Legal Officer, Department of Environment and Heritage Protection, for the statutory party
Background
This decision deals with an application by the respondent, JW Taylor Aly Awaditijia, for the award of costs in respect of an application by Legend International Holdings Inc (the applicant) to strike out the respondent's objection to the grant of an environmental authority and/or to strike out certain paragraphs of the respondent's particulars of objection.
The respondent has sought the following order -
"The applicant pay the respondent's costs of and incidental to the hearing and determination by the Land Court of the application filed on 18 September 2013."
The background to the strike out application is set out in my decision in response to that application dated 20 December 2013.[1] Relevantly, for the purposes of this decision, the respondent had written to the Minister administering the Environmental Protection Act1994 objecting to the applicant's proposal to build a dam on Battle Creek to be used in conjunction with or for the purposes of a phosphate mine to be established by the applicant in the Mount Isa region. The letter, although informal, was accepted as an objection under s 217(3) of the Environmental Protection Act 1994 and accordingly the matter was referred to the Land Court for an objections decision under that Act. Subsequently, and pursuant to Court order, the respondent filed particulars of the objection identifying 10 particulars. Thereafter, the applicant filed a general application seeking orders that the respondent's objection be struck out, or alternatively that paragraphs 1, 2, 3, 4, 5, 8, 9 and 10 be struck out. I refused the application to strike out the objection, granted the application to strike out paragraphs 1, 8, 9 and 10 and refused the application to strike out paragraphs 2, 3, 4 and 5 of the particulars.
[1] Legend International Holdings v Awaditijia & Anor [2013] QLC 66.
Submissions
In support of the application for costs, the respondent submitted that there was no evidence that the applicant had raised the question of striking out the objection with the respondent in correspondence prior to the making of the application. Nor was there evidence that specific complaints about the particulars had been raised with the respondent in correspondence prior to the filing of the formal application. The respondent was not given an opportunity to consider the specific concerns without the need to incur costs in responding to the application. Further, the respondent submitted, the applicant had failed in its application to strike out the objection and was only partially successful in relation to its application to strike out the specified particulars. The respondent submitted that the particulars could have been narrowed without the need for an application had the matters been squarely identified in correspondence prior to filing the application.
The applicant submitted that the appropriate order to be made is that each party bear their own costs.
The applicant submitted that the respondent had not conceded at any time that paragraphs 1, 8, 9 and 10 of the particulars were liable to be struck out and had continued to defend the inclusion of the particulars even after having the benefit of the submissions of the Statutory Party as well as the applicant. Further, the applicant submitted, the making of the application had reduced the costs of all parties in the principal proceeding because the issues in dispute had been distilled. That distillation may also promote the possibility of settlement. The applicant also submitted that the conduct of the respondent in filing particulars attempting to expand the grounds of objection had promoted delay which had disadvantaged the applicant. Although the respondent was not legally represented initially, the respondent had been the recipient of legal advice and representation at the time of filing the particulars.
Conclusions
Section 34 of the Land Court Act provides -
"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 power of the Land Court to award costs under s 34 extends to the hearing of objections to a draft environmental authority as there is no other Act to the contrary.[2] It has been held that the discretion granted to the Land Court by s 34(1) is not to be exercised arbitrarily, but judicially, for reasons that can be considered or justified.[3] While not determinative, the outcome of the proceeding is a significant factor influencing the exercise of discretion to award costs.[4]
[2] Anson Holdings Pty Ltd v Wallace (2010) 31 QLCR 74 at [21].
[3]BHP Queensland Coal Investments Pty Ltd v Cherwell Creek Coal Pty Ltd (No 2) (2009) 30 QLCR 173 at 6, citing the Full Court in Wyatt v Albert Shire Council [1986] 1 QLCR 486.
[4] BHP Queensland Coal Investments Pty Ltd v Cherwell Creek Coal Pty Ltd (2009) 30 QLCR 140 at [15].
In my opinion, the history of the strike out application is such that each party should bear its own costs of that application. While the applicant failed in the first part of its application, namely to strike out the objection completely, the applicant did have partial success in relation to the strike out of paragraphs 1, 8, 9 and 10 of the particulars of objection. It is recognized that the respondent was forced to respond to the application to strike out, to protect its position in relation to the survival of the objection. However, the respondent filed particulars of objection which went beyond the scope of the original notice of objection. This resulted in an order to strike out individual paragraphs of the objection. As each party partially won and partially lost, I consider that the appropriate order is that each party bear its own costs. I also note that although the respondent submitted that the applicant had failed to raise specific complaints about the particulars, in writing, prior to bringing the strike out application, there is no evidence before me as to the extent and content of any communications between the legal representatives prior to the strike out application. I have not, therefore, taken this aspect into account in reaching my decision.
ORDER
Each party is to bear its own costs of the strike out application.
CAC MacDONALD
PRESIDENT OF THE LAND COURT
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