Southern Cross Mine Management PL v Ensham Resources

[2007] QCA 31

SUPREME COURT OF QUEENSLAND

CITATION:

Southern Cross Mine Management PL v Ensham Resources & Ors  [2007] QCA 31

PARTIES:

SOUTHERN CROSS MINE MANAGEMENT PTY LTD
ACN 082 767 548
(plaintiff)
v
ENSHAM RESOURCES PTY LTD
ACN 011 048 678
(applicant/respondent/first defendant)
BLIGH COAL LIMITED
ACN 010 186 393
(second defendant)
IDEMITSU QUEENSLAND PTY LTD
ACN 101 236 272
(third defendant)
EPDC(AUSTRALIA) PTY LTD
ACN 002 307 682
(fourth defendant)
L.G. INTERNATIONAL (AUSTRALIA) PTY LTD
ACN 002 806 831
(fifth defendant)
KENNETH JOHN FOOTS
(respondent/appellant/first defendant added by counterclaim)
FOOTS PTY LTD
ACN 010 195 061
(second defendant added by counterclaim)
LITTLE DIGGER MINING LIMITED
ACN 096 110 717
(fourth defendant added by counterclaim)
NORMA AGNES FOOTS
(fifth defendant added by counterclaim)
KENNETH JOSEPH HILL
(third party to counterclaim)
KENNETH JOHN FOOTS
(fourth party to counterclaim)

FILE NO/S:

Appeal No 1768 of 2006
SC No 9548 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

9 February 2007

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Jerrard and Holmes JJA and Mullins J
Separate reasons for judgment of each member of the Court, Jerrard and Holmes JJA concurring as to the orders made, Mullins J dissenting

FURTHER ORDER:

The appellant is to pay the costs of the respondent of the appeal, to be assessed on the standard basis 

CATCHWORDS:

PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – where appellant had an arguable case – where the matter litigated was of broader public interest –whether appropriate to make an order for costs

Uniform Civil Procedure Rules 1999 (Qld), r 689(1), r 766(1)(d)

Oshlack v Richmond River Council (1999) 193 CLR 72, considered

SOLICITORS:

Conroy & Associates for the appellant
Allens Arthur Robinson for the respondent

1. ERRARD JAJ:  On 8 December 2006 this Court dismissed the appellant’s appeal and granted the parties leave to make submissions on costs.  Those submissions have been received; the appellant argues no order for costs should be made because the matter litigated was most certainly not free from doubt and there was a broader interest, beyond the interests simply of the parties to the litigation, that the doubt be authoritatively resolved.  Those submissions can be accepted, but the appellant failed below and on appeal.  The respondent, as the successful party in the litigation, is entitled to an award of costs in its favour unless this Court considers that some other is more appropriate (Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) r 689(1), r 766(1)(d), and see Oshlack v Richmond River Council (1999) 193 CLR 72 per McHugh J at 97). No good reason has been shown for considering that a different order would be more appropriate; it is not appropriate to make no order for costs simply because the unsuccessful party had a plainly arguable case, or because the point determined has some wider importance.

1. I agree with the respondent’s submission that leave is not required under UCPR r 72; if it were, it should be granted.

1. The order of the Court should be that the appellant Kenneth John Foots pay the respondent’s costs of and incidental to the appeal, assessed on the standard basis.

1. HOLMES JA: I agree with Jerrard JA that the appellant should pay the respondent’s costs of the appeal.

1. MULLINS J:  I indicated in Southern Cross Mine Management Pty Ltd v Ensham Resources Pty Ltd & Ors [2006] QCA 531 what the costs order in respect of the appeal should be, consistent with my dissenting judgment. It is therefore unnecessary for me to deal with the parties’ submissions on costs of the appeal.