Re Cherwell Creek Coal Pty Ltd, ex parte Chief Executive, Department of Natural Resources and Mines (No 2)
[2016] QLC 59
•14 October 2016
LAND COURT OF QUEENSLAND
CITATION: Re Cherwell Creek Coal Pty Ltd, ex parte Chief Executive, Department of Natural Resources and Mines (No 2) [2016] QLC 59 PARTIES: Cherwell Creek Coal Pty Ltd (ACN 063 763 002)
(applicant)
v Chief Executive, Department of Natural Resources and Mines
(non-party)Substantive Matter Cherwell Creek Coal Pty Ltd (ACN 063 763 002)
(applicant)v BHP Queensland Coal Investments Pty Ltd
(ACN 098 876 825)
QCT Resources Pty Ltd (ACN 010 808 705)
BHP Coal Pty Ltd (ACN 0101 595 721)
QCT Mining Pty Ltd (ACN 010 487 840)
Mitsubish Development Pty Ltd (ACN 009 779 873)
QCT Investment Pty Ltd (ACN 010 487 831)
Umal Consolidated Pty Ltd (ACN 000 767 386)
(respondents)FILE NO/s: MRA1332-08 DIVISION: Land Court of Queensland PROCEEDING: Applications for costs DELIVERED ON: 14 October 2016 DELIVERED AT: Brisbane HEARD ON: 3 March 2016
Submissions closed 1 April 2016HEARD AT: Brisbane MEMBER: PA Smith ORDER/S: That each party’s application for costs be dismissed with respect to the application for non-party disclosure. 1.
The applicant pay DNRM its costs and expenses of production of the documents provided to the applicant, in accordance with the process outlined in r 249 UCPR.2.
That the time for DNRM to comply with r 249(2) UCPR be extended to within 1 month of the date of this decision.3.
CATCHWORDS: COSTS – non-party disclosure application – where both applicant and non-party had success and failure with respect to the application – whether Land Court’s jurisdiction to award costs was under s 34 Land Court Act 2000 or under the specific non-party disclosure costs provisions in the UCPR – consideration of r 247(3), r 247(4) and r 249 UCPR - whether costs should be awarded
Land Court Act 2000, s 34
Land Court Rules 2000, r 13
Uniform Civil Procedure Rules 1999, r 247(3), r 247(4), r 249Chenoweth v ING Australia Ltd [2004] QSC 143
Creswick & Ors v Creswick [2009] QSC 219
Deppro Pty Ltd v Hannah [2009] 1Q d R 1
Erglis v Buckley [2004] QSC 380
Smith v O’Leary [2001] QDC 197
Westsand Pty Ltd v Johnson [1999] QSC 337APPEARANCES: Ms JK Chappel of Counsel for the applicant
Mr JM Horton QC and Ms A Nicholas of Counsel for the Department of Natural Resources and Mines
SOLICITORS: Holding Redlich Lawyers for the applicant
Crown Solicitor for the Department of Natural Resources and Mines
Background
This is a decision with respect to costs of complying with a non-party disclosure notice and an application to set aside a stay of the notice.
On 1 October 2014 Cherwell Creek Coal Pty Ltd (the applicant) served a notice of non-party disclosure on the Department of Natural Resources and Mines (DNRM). The notice was issued pursuant to r 13 Land Court Rules 2000 and r 242 Uniform Civil Procedure Rules 1999 (UCPR). Under the notice the applicant sought substantial documentation from DNRM with respect to the applicant’s dispute with BHP Queensland Coal Investments Pty Ltd and others (collectively referred to as BMA).
In response to the notice which sought seven categories of documents, DNRM wrote to the applicant on 3 October 2014 indicating that they were searching for documents in categories 1 to 4 and reserved their right to object to the production of those documents once they were reviewed. In relation to categories 5 to 7 DNRM stated their objection to production on the grounds of relevance, expense and oppression in locating such a large quantity of documents.[1]
[1]Affidavit of Paula Freeleagus filed 30 October 2015 at PPF-01.
By virtue of r 246 UCPR the objection by DNRM stayed the operation of the notice.
On 10 October 2014 the applicant filed an application to this Court to lift the stay and for the documents described in the notice to be produced by DNRM.
On 17 November 2014 Crown Law acting for DNRM sent correspondence to the Applicant’s solicitors outlining their concerns with respect to the notice. Grounds of objection listed were:[2]
· documents already available to the applicant;
· scope of notice – relevance, fishing and oppression (with respect to categories 5 to 7);
· privilege and public interest immunity.
[2]Ibid at (6) and exhibit PPF-02.
The hearing of the application was adjourned by consent and the parties attempted to resolve their differences with respect to the notice.[3]
[3]Ibid at (7).
On 27 February 2015 Crown Law delivered an extensive list of documents to the applicant’s solicitors. Documents were made available to the applicant from categories 1 to 4. The list identified 15 documents over which DNRM claimed privilege and or commercial-in-confidence objections.[4] This was the first time commercial-in-confidence objections were raised by DNRM.
[4]Ibid at (10) and Exhibit PPF-03.
At the request of the applicant, Crown Law, on 6 March 2015, specifically linked each ground of objection (relevance, legal professional privilege and commercial-in-confidence) to particular documents in categories 1 to 4.[5]
[5]Ibid at (12) and (13) and Exhibit PPF-04.
The applicant pressed for production of the documents despite DNRM’s objections. After multiple requests for extra time, the application to determine the validity of the objections eventually came before this Court on 30 October 2015.
In the Affidavit of Paula Freeleagus and in its written submissions, both filed 30 October 2015,[6] and at the hearing of this application, DNRM indicated that the respondents to the substantive action (BMA) ought to be afforded the opportunity to make submissions at the hearing with respect to objections raised by DNRM regarding commercial-in-confidence concerns.
[6]Ibid at (18v) and (18ix); and Outline of Submissions of DNRM dated 30 October 2015 at (23).
The applicant opposed BMA being notified and heard with respect to the commercial-in-confidence objections made by DNRM.
After hearing oral submissions on this threshold issue, I determined not to hear submissions at that time with respect to the substantive merits of what documents should or should not be provided under the notice. I ordered on 30 October 2015 that both the applicant and DNRM file and serve written submissions with respect to:
(a) whether the applicant was required to serve BMA with the notice and/or with the application; and
(b) if BMA is not required to be served, how their interests in the commercial-in-confidence documents can be raised.
After reviewing the evidence and submissions in this matter I determined on 17 December 2015[7] that the applicant was not required to serve the notice or the application for non-party disclosure upon BMA. However, I indicated I could not properly assess commercial-in-confidence concerns and, if necessary, place restrictions regarding the use of those documents, without hearing from BMA.[8]
[7]Re Cherwell Creek Coal Pty Ltd, ex parte Chief Executive Department of Natural Resources and Mines [2015] QLC 52.
[8]Ibid at [53].
I ordered that DNRM provide notice to BMA of the 4 documents over which they were asserting commercial-in-confidence objections on behalf of BMA, and for BMA to provide submissions with respect to their position.[9]
[9]Order of the Land Court dated 17 November 2015.
On 25 January 2016, BMA indicated it did not object to these documents being produced to the applicant,[10] hence DNRM’s commercial-in-confidence objections were no longer maintained.
[10]BMA submissions filed 25 January 2016.
On 8 February 2016 Crown Law filed three further Affidavits[11] with respect to further work undertaken to locate documents in categories 1 to 4 and searches necessary to locate documents in categories 5 to 7.
[11]Affidavits of Margot Clarkson, Anthony Grant and Paula Freeleagus.
At the 9 February 2016 hearing, I was required by the parties to review 23 documents to rule on objections in relation to relevance, legal professional privilege and parliamentary privilege. All objections made by DNRM were upheld with the exception of documents 1.162, 1.169 and 1.172 where parts of those documents which had been redacted were released, while other redacted parts of those documents were maintained.[12]
[12]Schedule of rulings document filed on 22 March 2016.
At this hearing the applicant effectively abandoned seeking documents outlined in categories 5 to 7 of its notice.[13] As a result I ordered that Categories 5, 6 and 7 of the applicant’s notice be set aside.[14]
[13]Applicant’s reply submissions on costs filed 1 April 2016 at (6), T 1-59 line 44 and T1-60 line 5.
[14]Order made 9 February 2016 at (5).
On 25 February 2016 DNRM filed an Affidavit setting out its claims for privilege over further documents.[15]
[15]Affidavit of Margot Clarkson filed 25 February 2016.
On 26 February 2016 and 2 March 2016 DNRM served two Supplementary Lists of Documents upon the applicant and provided further documents.[16]
[16]Annexure A to the Applicant’s reply submissions filed 1 April 2016, and Affidavit of Margot Clarkson filed 25 February 2016 at (11).
On 3 March 2016 I made final determinations with respect to the documents in dispute in this matter. I upheld DNRM’s objections over a further seven documents but did remove some redacted information contained in document 1.166.
Applicant’s Submissions as to Costs
The applicant made oral submissions on costs at the 3 March 2016 hearing and via three written submissions.[17]
[17]Written submissions filed 3 March 2016, 22 March 2016 and 1 April 2016.
The applicant is seeking its costs of the application on a standard basis; alternatively its costs of and incidental to the hearings on 30 October 2015, 9 February 2016 and 3 March 2016, together with additional submissions necessitated by DNRM’s unsuccessful attempt to ensure that BMA be served with the notice and/or application.
The applicant submits that it should not have to pay DNRM’s costs or pay its fixed costs on an indemnity basis. The applicant though, submits if the Court decides to award DNRM its costs, those costs should be limited to DNRM’s response to documents sought under categories 5 to 7 on a standard basis and not fixed costs.[18]
[18]Applicant’s submissions filed 22 March 2016 at (25).
The applicant submits that although s 34 Land Court Act 2000 provides a general power for the Land Court to award costs as it considers appropriate, that power is subject to the provisions of another Act to the contrary. Rule 13 Land Court Rules 2000 provides that the UCPR disclosure provisions are applicable to this matter. Hence, for the purposes of non-party disclosure undertaken pursuant to the UCPR, costs should be determined under r 247(3) and (4) UCPR. Rule 247(3) provides that each party should bear their own costs unless the Court otherwise orders. Rule 247(4) allows the Court to make an order for costs subject to certain considerations including the merit of the objections and public interest considerations as outlined in r 247(4)(a) - (c).
The applicant submits that on a consideration of the facts in this case, there should be a costs order in its favour because:
(a) the application for non-party disclosure was successful and documents have been produced because of it; it was only after the application was filed and served that DNRM produced any documents;
(b) DNRM was unsuccessful in its submission that BMA should have been served with the notice and/or application. This necessitated adjourning the 30 October 2015 hearing and unnecessary written and oral submissions. As per the Court’s comments in its decision, DNRM could have just asked BMA whether they objected to the alleged commercial-in-confidence documents being disclosed, rather than putting the parties and the Court to the expense of making a ruling with respect to this question;[19]
[19]Re Cherwell Creek Coal Pty Ltd, ex parte Chief Executive Department of Natural Resources and Mines [2015] QLC 52 at [67].
(c) despite being given several opportunities to do so, DNRM’s objections on the grounds of legal professional privilege and/or parliamentary privilege were inadequately articulated, necessitating the Court to review the documents in question and rule on the objections;
(d) many of DNRM’s objections at the hearings were overruled;
(e) DNRM’s conduct was dilatory, such as providing documents in a piecemeal fashion. Searches were still being undertaken in February 2016, and some documents were provided to the applicant as late as 2 March 2016, some 18 months after the notice and application were served;
(f) the unique circumstances of this case have to be considered. DNRM was the brainchild of special legislation removing the applicant’s rights to its tenements, gifting them to BMA and removing any liability the State might have to the applicant. The fact that those actions by the State are now in issue in the proceedings, should not come as a surprise to DNRM, who may have taken steps to isolate and preserve such documentation to assist the parties and the Court.
DNRM’s Submissions as to Costs
DNRM made oral submissions on costs at the 3 March 2016 hearing and via three written submissions.[20]
[20]Written submissions filed 3 March 2016, 22 March 2016 and 1 April 2016.
DNRM seeks its costs of production of documents in response to the notice and, also, in responding to the non-party disclosure application including hearings on 30 October 2015, 9 February 2016 and 3 March 2016.
DNRM is seeking an order for fixed costs to avoid the expense of a formal costs assessment, even though the costs figure quoted is approximate. Queens Counsel for DNRM drew my attention to a figure for costs of $83,543, estimated by Ms Freeleagus in paragraph 14 of her Affidavit filed 25 February 2016.[21]
[21]T 1-58 line 30.
DNRM submit that there is no incongruity between the Court’s costs powers under s 34 Land Court Act 2000 and r 247(3) and r 247(4) UCPR – the same discretionary considerations apply.
In terms of why the discretion to award costs should be exercised in favour of DNRM it submits:
(a) DNRM has at all times acted appropriately in voluntarily disclosing a large number of documents which appeared to be relevant and not protected by privilege;
(b) It was proper for DNRM to object and protect the privileged nature of certain documents. DNRM was successful in that the Court did not release any document over which there were objections – with just 4 documents there was a change in the extent of redactions;
(c) The applicant’s notice was overly wide, unfocused, and oppressive, as evidence by the applicant’s very late withdrawal of categories 5, 6 and 7. The applicant only advised of its intention to withdraw these categories of documents from its notice, during the course of the 9 February 2016 hearing;[22]
(d) DNRM has been put to unnecessary and substantial expense and has devoted significant public resources to responding to the notice.
[22]T 1-59 line 44 and T1-60 line 5.
Statutory Framework
The Land Court is governed by the Land Court Act 2000 and the Land Court Rules 2000. Section 34 Land Court Act 2000 states:
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.
Rule 13 Land Court Rules 2000 provides that Chapter 7 UCPR applies with necessary changes to disclosure in a proceedings in the Land Court. Part 2 Chapter 7 UCPR contains the non-party disclosure rules. Rule 242(1) states:
(1) A party (the applicant) to a proceeding may by notice of non-party disclosure require a person who is not a party to the proceeding (the respondent) to produce to the applicant, within 14 days after service of the notice on the respondent, a document –
(a) directly relevant to an allegation in issue in the pleadings; and
(b) in the possession or under the control of the respondent; and
(c)that is a document the respondent could be required to produce at the trial of the matter.
Rule 243 prescribes the form and service of the notice of non-party disclosure.
Rule 245 states:
(1) The respondent, or a person who has been served with a notice of non-party disclosure under rule 244, may object to the production of some or all of the documents mentioned in the notice within 7 days after its service or, with the court’s leave, a later time.
(2) Also, another person who would be affected by the notice and who has not been served may object to the production of some or all of the documents mentioned in the notice at any time with the court’s leave.
(3) The objection must –
(a) be written; and
(b) be served on the applicant; and
(c) if the person objecting (objector) is not the respondent – be served on the respondent; and
(d) clearly state the reasons for the objection.
(4) The reasons may include, but are not limited to, the following-
(a) if the objector is the respondent- the expense and inconvenience likely to be incurred by the respondent in complying with the notice;
(b) the lack of relevance to the proceeding of the documents mentioned in the notice;
(c) the lack of particularity with which the documents are described;
(d) a claim of privilege;
(e) the confidential nature of the documents or their contents;
(f) the effect disclosure would have on any person;
(g) if the objector was not served with the notice- the fact that the objector should have been served.
Rule 246 states:
Service of the objection under rule 245 operates as a stay of a notice of non-party disclosure.
Rule 247 states:
(1) Within 7 days after service of an objection under rule 245, the applicant may apply to the court for a decision about the objection.
(2) The court may make any order it considers appropriate including, but not limited to an order-
(a) lifting the stay; or
(b) varying the notice of non-party disclosure; or
(c) setting aside the notice.
(3) Unless the court otherwise orders, each party to an application to decide an objection must bear the party’s own costs of the application.
(4) The court may make an order for subrule (3) if, having regard to the following, the court considers that the circumstances justify it –
(a) the merit of the objector’s objections;
(b) the public interest in the efficient and informed conduct of litigation;
(c) the public interest in not discouraging objections in good faith by those not a party to the litigation.
Rule 248 specifies how the documents are to be produced.
Rule 249 states:
(1) Subject to rule 247(3), the applicant must pay the respondent’s reasonable costs and expenses of producing a document.
(2) Within 1 month after producing a document, the respondent must give to the applicant written notice of the respondent’s reasonable costs and expenses of producing it.
(3) Unless the court otherwise orders, the applicant may apply to the registrar with 1 month after receiving written notice under subrule(2) for assessment of the costs and expenses.
Is the Court’s Power to Award Costs pursuant to s 34 Land Court Act 2000 or r 247 (3) and r 247(4) of the UCPR?
In Wyatt v Albert Shire Council[23] the Full Court said that the power to award costs of proceedings is entirely the creation of statute.
[23][1987] Qd R 486 at 488.
The Land Court is established by s 4(1) Land Court Act 2000.
As identified by the former President McDonald of the Land Court,[24] the Land Court does not obtain its jurisdiction to award costs from the UCPR but from its own legislation (s 34 Land Court Act 2000). The UCPR costs provisions merely provide rules to be considered when exercising its costs jurisdiction.
[24]Legend International Holdings Inc v Taylor Aly Awaditijia & Anor (No 4) [2016] QLC 23 at [26]‑[27].
The discretion under s 34 is complete and unfettered by any preconceived rules or principles such that costs should follow the event. The discretion though, must be exercised judicially with sound reasons and not arbitrarily.[25]
[25]Henry v ERO Georgetown Gold Operations Pty Ltd [2016] QLC 17 at [18].
Rule 13 Land Court Rules 2000 incorporates the UCPR disclosure provisions with respect to this matter. Although the discretion to award costs under s 34 is unfettered by the UCPR which is not an Act to the contrary, in my view the rules regarding costs in non-party disclosure matters in the UCPR inform the Court for the purpose of arriving at a decision on costs pursuant to s 34 Land Court Act 2000.
Legal Authorities
In terms of legal authorities the case most referred to by both parties is the District Court decision in Smith v O’Leary.[26]
[26][2001] QDC 197.
In that case the defendants in the substantive action issued a notice of non-party disclosure over documents held by the respondent, a firm of solicitors. Objections were raised and the defendants applied to the Court for a decision with respect to those objections.
Ultimately, the defendants and the respondents came to an agreement as to what documents should be produced and the defendants abandoned their non-party disclosure application. The respondents sought their costs because the defendants had abandoned their application – the defendants submitted that no costs order should be made as they had obtained the documents they needed from the respondent but only after the application had been filed.
McGill J considered UCPR r 247(3) and r 247(4). He viewed these provisions as altering the standard ‘winner gets their costs’ scenario in the UCPR and reinforced that the starting point for non-party disclosure is no order for costs should be made.
McGill J says with respect to r 247(3):[27]
[27]Ibid at [3].
“Nevertheless, the fact that there is a specific provision in this rule dealing with this particular category of application suggests that it always was intended that the costs in relation to such applications should be dealt with on a different basis, and that the starting point ought to be that no order as to costs should be made. That is confirmed by the terms of subrule 247(4). The reason may well have been to reduce the risk that persons who were unhappy with a notice of non-party disclosure might otherwise be deterred from taking an objection if they faced the prospect of an adverse costs order on the application, if it turned out that any of the documents to which objection was taken ought to have been disclosed.”
And further McGill J says with respect r 247(4)(c):[28]
“Consideration (c) was, I think, intended to emphasise that the mere fact that, on the hearing of an application under r.247, the documents are ordered to be produced was not to be taken as a sufficient reason in itself, for making a costs order against the non-party. It is, however, not a factor which particularly justifies vigorous defence of objections by a non-party to the point of intransigence. It is, in my opinion, a factor which was intended to make a court reluctant to make a costs order against a non-party, rather than particularly encouraging a court to make a costs order in favour of a non-party.
This, in my opinion, is not a case where an application was made which was always hopeless and was subsequently abandoned, in a way which could be seen as some recognition that the application was not worth pursuing, and therefore ought never to have been made. Nevertheless, the fact that the application was abandoned is a factor which favours the respondents; if an application to a court is made and then abandoned, ordinarily the applicants would have to pay any costs incurred as a result of the application being made, unless there is some proper justification for the change. In view of the provisions of r.247, this is not an approach which can be applied directly in the present case, but it is, in my opinion, still a relevant consideration. Ultimately the substantive application was not fully argued on its merits, but on the basis of what I have seen and such argument as I heard, I think it likely that had it been argued, there would have been some additional documents ordered to be produced, although subject to appropriate safeguards by way of undertakings and deletions to preserve confidentiality. It follows therefore that, in my opinion, there was some justification for making the application, and it does appear that some documents were provided after the application was made which had not been provided earlier.”
[28]Ibid at [40]-[41].
In Smith the respondents were able to persuade the defendants to abandon many of the documents they had initially sought from them. Hence, His Honour found that in terms of overall success the respondents succeeded substantially.
However as both parties had some success in the application, and combined with the prima facie preference in the rules that there be no order as to costs, ultimately Judge McGill DCJ found that he should not depart from the starting position that there be no order as to costs.
In Westsand v Johnson[29] Wilson J determined an application for production of documents via a notice of non-party disclosure. Grounds of objection included relevance and confidentiality. The applicant and respondent each had partial success in terms of the production of documents ordered by the Court. Given the circumstances, it was considered appropriate that each party bear its own costs.
[29][1999] QSC 337.
In Creswick & Ors v Creswick[30] Daubney J considered objections of relevance and legal professional privilege. The applicant and respondent each had partial success in terms of the production of documents ordered by the Court. Given the circumstances it was considered appropriate that each party bear its own costs.
[30][2009] QSC 219.
In Erglis v Buckley[31] Douglas J determined that all documents sought under a notice of non-party disclosure be provided, rejecting an objection of relevance. Despite the applicant being wholly successful in the application for non-party disclosure, the Court ordered each party to bear their own costs of the application.
[31][2004] QSC 380.
In Deppro Pty Ltd v Hannah[32] Daubney J ultimately ordered production of documents and dismissed an objection relating to patent attorney privilege, finding the relevant communications were for an improper purpose. With respect to costs, the Court ordered the applicant to pay the respondent’s costs despite being successful in the application for non-party disclosure. The Court noted that the privilege objection was not misconceived nor obdurate, and that the respondent’s objection that the notice itself did not comply with the formal requirements of r 243(1)(b) UCPR was properly founded.
[32][2009] 1 Qd R 1.
In Chenoweth v ING Australia Ltd[33] Mackenzie J dismissed an application for non-party disclosure ruling that the notice was inadequately drafted. In these circumstances where the respondent’s ultimately successful objections were raised before the application was filed and served, the Court ordered the applicant to pay the respondent’s costs.
[33][2004] QSC 143.
Assessment of Conduct in this Matter
Both the applicant and DNRM have made reasonable if not compelling submissions as to why costs should be ordered in their favour.
As submitted by the applicant, the documents in question were only produced after the application was filed. However, given the number and age of the documents in question, I believe it was reasonable for DNRM to initially reserve their objection rights with respect to category 1 to 4 documents until they had been located and assessed. Also, DNRM notified the applicant immediately of its objection to producing documents in categories 5 to 7, the pursuit of which documents the applicant ultimately abandoned.
I believe the applicant was put to unnecessary expense in successfully arguing that BMA did not have to be served with the notice and/or application. As stated in my decision on this question,[34] the whole issue could have been avoided if DNRM had contacted BMA as soon as they had formed commercial-in-confidence concerns and obtained BMA’s advice that they did not wish to object to the production of these documents.
[34]Re Cherwell Creek Coal Pty Ltd, ex parte Chief Executive Department of Natural Resources and Mines [2015] QLC 52 at [67].
The applicant has submitted that DNRM’s objections on the grounds of legal professional privilege and/or parliamentary privilege were inadequately articulated, necessitating the Court to rule on these objections. This is true to an extent but at what point would the applicant have accepted DNRM’s assertion of legal professional privilege, without requiring the Court to look at a particular document and make an assessment? In its letter to the applicant[35] Crown Law indicated exactly what privilege its client was claiming over what document, yet this did not deter the applicant from requiring assessment/confirmation by the Court.
[35]Letter dated 6 March 2015.
The applicant has submitted that many of DNRM’s objections were overruled by this Court. In terms of my assessment of the documents, it was overwhelmingly in favour of DNRM. No document objected to was ordered to be produced. Of the 31 documents I assessed over two separate hearings, only parts of the redactions in 4 documents were removed.
There is some merit in the applicant’s submissions that DNRM’s conduct was dilatory, given searches for documents were still being undertaken in February 2016 and some documents were not provided till 2 March 2016, nearly 18 months after the notice and application were served.
The applicant has submitted that the unique circumstances of this case should be considered; such that DNRM invoked special legislation to gift the applicant’s mining tenements to BMA and removed any liability for the State. The applicant submits that in these peculiar circumstances the State could have preserved these documents in anticipation of a court hearing the issues.
I am not convinced that the State should be put in a different position to any other respondent complying with a notice of non-party disclosure. The State is expected to be a model litigant and I do not believe their duty in this particular matter is any higher than that. The fact the State’s legislation may have facilitated the substantive action is irrelevant.
In terms of DNRM’s submissions, I cannot accept the submission that at all times it has acted appropriately in voluntarily disclosing large number of documents which appeared relevant and not protected by privilege. As already discussed, I believe DNRM should have notified BMA of their commercial-in-confidence concerns rather than submit them to the Court; and it took too long in searching for and providing some documents – nearly 18 months after first receiving the notice and application.
I agree that DNRM was substantially successful in maintaining its objections to the notice and application for non-party disclosure, given only 4 documents required an alteration of the redactions imposed by DNRM.
I also note the applicant abandoned categories 5 to 7 of its notice and hence, by its actions, it has tacitly supported DNRM’s objection to these particular documents which was made prior to the application. Further, the applicant did not formally abandon these particular categories of documents until the 9 February 2016 hearing – which was very late in the piece. From the decision in Smith the abandonment of documents is a relevant consideration in a costs decision.
Determination
Having carefully weighed all the evidence and submissions in this matter, and considered the r 247(4) factors and the starting point for costs of a non-party disclosure application is that each party bears their own costs, and having considered the previous judicial authorities outlined in this decision; I have determined not to make an order for costs. Hence each party should bear their own costs of this non-party disclosure application.
As outlined above, both parties have had success and failure and have unreasonably contributed to the costs of the other party.
Pursuant to r 249(1) UCPR (which is subject to r 247(3)), an applicant must pay the respondent’s reasonable costs and expenses of producing a document. In this matter I can see no reason why DNRM, a non-party, should not have its costs of producing its documents to the applicant met by the applicant, as opposed to its costs of resisting the application for non-party disclosure. I note the applicant appears to accede to this point.[36]
[36]Applicant’s submissions filed 3 March 2016 (56); Applicant’s submissions filed 22 March 2016 (28); Applicant’s submissions filed 1 April 2016 (14).
Pursuant to r 249(2), within 1 month of producing a document the respondent must give the applicant written notice of its reasonable costs of producing it.
Under r 249(3) the applicant may apply to the registrar for an assessment of the costs of production within 1 month of receiving them.
This then provides a mechanism for costs and expenses of production to be claimed/paid and if necessary assessed.
Submissions from the applicant[37] indicate that DNRM have not provided it with a written notice of DNRM’s reasonable costs and expenses of production of the documents. That is yet another failure by DNRM.
[37]Applicant’s submissions filed 3 March 2016 (56).
In line with the reasoning of Wilson J in NJH Pty Ltd v Billabong International Limited & Ors[38] and pursuant to r 7 UCPR, time should be extended for DNRM to provide the applicant with a written notice of its reasonable costs and expenses of producing documents - 1 month from the date of this decision should be sufficient. The applicant can then invoke the provisions of r 249(3) should it wish to do so.
[38][2010] QSC 239.
As discussed earlier in this decision, the jurisdiction for the Land Court to award costs in this matter (including production costs) is pursuant to s 34 Land Court Act 2000.
Orders
1. That each party’s application for costs be dismissed with respect to the application for non-party disclosure.
2. The applicant pay DNRM its costs and expenses of production of the documents provided to the applicant, in accordance with the process outlined in r 249 UCPR.
3. That the time for DNRM to comply with r 249(2) UCPR be extended to within 1 month of the date of this decision.
PA SMITH
LAND COURT MEMBER
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