Queensland Nickel Sales Pty Ltd v Chief Executive of Environment and Heritage Protection; QNI Resources Pty Ltd v Chief Executive Department of Environment and Heritage Protection; QNI Metals Pty Ltd v Chief..
[2017] QPEC 55
•8 September 2017
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION:
Queensland Nickel Sales Pty Ltd v Chief Executive of Environment and Heritage Protection; QNI Resources Pty Ltd v Chief Executive Department of Environment and Heritage Protection; QNI Metals Pty Ltd v Chief Executive Department of Environment and Heritage Protection [2017] QPEC 55
PARTIES:
In Matter No 2037 of 2016:
QUEENSLAND NICKEL SALES PTY LTD
(appellant/respondent)
v
CHIEF EXECUTIVE DEPARTMENT OF ENVIRONMENT AND HERITAGE PROTECTION
(respondent/applicant)
In Matter No 2039 of 2016:
QNI RESOURCES PTY LTD
(appellant/respondent)
v
CHIEF EXECUTIVE DEPARTMENT OF ENVIRONMENT AND HERITAGE PROTECTION
(respondent/applicant)
In Matter No 2040 of 2016:
QNI METALS PTY LTD
(appellant/respondent)
v
CHIEF EXECUTIVE DEPARTMENT OF ENVIRONMENT AND HERITAGE PROTECTION
(respondent/applicant)
FILE NO/S:
2037, 2039 and 2040 of 2016
DIVISION:
Planning and Environment
PROCEEDING:
Application
ORIGINATING COURT:
Brisbane
DELIVERED ON:
8 September 2017
DELIVERED AT:
Brisbane
HEARING DATE:
8 September 2017
JUDGE:
Rackemann DCJ
ORDER:
Costs awarded in the applicant’s favour on a standard basis.
CATCHWORDS:
PLANNING AND ENVIRONMENT – PRACTICE AND PROCEDURE – COSTS – where appeals discontinued, without explanation shortly prior to hearing
COUNSEL:
D Holliday for the applicant
Solicitor for the respondent
SOLICITORS:
Department of Environment and Heritage Protection for the applicant
Haseler Law for the respondent
The Chief Executive seeks its standard costs of these proceedings, which were unilaterally discontinued by the appellants on Monday, the 28th of August, just six business days before the commencement of the hearing of the appeals.
It is common ground that the power to award costs is governed by section 457 of the Sustainable Planning Act 2009. That section, at the relevant time, conferred a broad discretion in relation to costs.
As was pointed out on behalf of the respondent to the costs application, this Court has previously said, in relation to the discretion which was conferred at that time, the discretion was an open one and was not to be approached either on the basis that there was a presumption that costs followed the event or on the basis that there was a qualified protection against an adverse costs order. The discretion was expressed in general terms and was required to be exercised judicially, having regard to relevant circumstances.
The appeals were set down for hearing on the 6th and 7th of September. The notices of discontinuance were filed on the 28th of August 2017 following the callover which had occurred on the 18th of August where the hearing dates had been set. Filing of the discontinuances means that the Chief Executive has been entirely successful in the proceedings. I accept the submission, made on behalf of the Chief Executive, that to discontinue so late in the proceedings, after they have been on foot for over a year and after all the material had been filed in preparation for the hearings and so close to the hearings was to act unreasonably in the circumstances.
It was pointed out, on behalf of the respondents to the cost application, that they had participated in mediation. In that regard, there had been a first round of mediation on the 17th of March 2017 followed by a second round of mediation on the 21st of July 2017, but the proceedings had not been discontinued promptly thereafter, and, as has already been noted, the matters had then been set down for a trial at the callover on the 18th of August for hearing on the 6th of September. It was not until the 28th that the matters had been discontinued.
It may be noted that no affidavit material was filed on behalf of the respondents to the cost applications to explain the conduct in relation to the discontinuance of the proceedings or the timing thereof. Whilst I accept that the hearing of the costs application is not an occasion for the assessment of the relative strength or weakness of the case, the fact remains that these were proceedings which, having been brought, have simply and in unexplained circumstances, been discontinued very late in the proceedings, shortly before trial such that the Chief Executive’s position ultimately went unchallenged resulting in it being entirely successful in the proceedings. In such circumstances, it seems to me that the discretion should be exercised in favour of an award of costs in the Chief Executive’s favour on a standard basis.
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