Wallace v Anson Holdings Pty Ltd

[2009] QLC 107

LAND COURT OF QUEENSLAND

CITATION:

Wallace v Anson Holdings Pty Ltd & The Environmental Protection Agency [2009] QLC 0107

PARTIES:

In the matter of an application for ML 20415

Ian Earl Wallace
(applicant)

and

Anson Holdings Pty Ltd
(objector)

and

Chief Executive, Environmental Protection Agency
(statutory party)

FILE NOS:

AML00096/2008
ENO00149/2008

DIVISION:

Land Court of Queensland

PROCEEDING:

Application for costs

DELIVERED ON:

31 July 2009

DELIVERED AT:

Brisbane

HEARD AT:

Brisbane

MEMBER:

Mr RP Scott

ORDER:

That the objector pay 40% of the applicant’s costs of the proceeding before the Land Court, as agreed or to be assessed, inclusive of the following:

(a)   the directions hearing on 5 and 22 August 2008 and on 15 October 2008; and

(b)   the hearing before the Land Court on 25 November 2008. 

CATCHWORDS:

Practice and procedure – application for costs – s.34(1) Land Court Act 2000 permits costs in a mining lease application

Practice and procedure – many formal non-prejudicial grounds of objection – relevant to costs order

APPEARANCES:

Not applicable – Heard on the Papers

Background

1. In reasons published 6 May 2009[1] I dealt with an application for mining lease, disposing objections thereto and objections to the associated draft environmental authority.  Those conclusions were made in favour of the applicant for costs.

   [1]     Wallace v Anson Holdings Pty Ltd & The Environmental Protection Agency [2009] QLC 0063.

2. The applicant seeks an order pursuant to s.34(1) of the Land Court Act 2000 that the objector pay the applicant’s costs of the proceedings including the hearing of the substantive matter and associated directions hearing. That application is resisted by the objector. Section 34(1) of the 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.

3. The objector made reference to s.268(8) and (9) of the Mineral Resources Act 1989 which provides:

   (8)   The Land Court on the application of an objector or owner may award costs against an applicant for a mining lease who abandons the application or does not pursue the application at a hearing.

   (9)   The Land Court on the application of an applicant for a mining lease may award costs against an objector who withdraws the objection or does not pursue the objection at a hearing.

4. It was submitted for the objector that the provisions referred to comprise provisions contrary to s.34(1) of the Land Court Act and limit the operation of s.34 accordingly. It follows according to that submission that it is only in the limited circumstances provided for in s.268(8) and (9) of the Mineral Resources Act that costs with respect to a mining lease application can be awarded.

5. I do not accept that submission. The provisions referred to in s.268 of the Mineral Resources Act provide particular examples of circumstances where costs may be awarded and can be read consistently with the power created by s.34 of the Land Court Act for the Land Court to award costs in a proceeding. Prior to its repeal effective 18 September 2000 the current s.268(8) and (9), appeared in the then Mineral Resources Act as ss.(9) and (10) and referred to the jurisdiction of the Wardens Court:

   (9)   The Wardens Court shall not take evidence in a hearing of an application for the grant of a mining lease until the results of any study into the environmental impact of such a grant requested by the Minister are available to the court.

   (10) A Wardens Court on the application of an objector or owner may award costs against an applicant for a mining lease who abandons the application or does not pursue the application at a hearing.

6. Those provisions co-existed with a broader costs jurisdiction provided for in s.368 of the Act until that provision was also repealed effective 18 September 2000:

   Costs

   368.(1) Costs may be awarded by the Wardens Court in respect of any matter (including the hearing of applications and objections under this Act) brought before the Wardens Court.

   (2) Costs awarded by the Wardens Court shall be at the discretion of the warden and the amount thereof may be determined by the warden or taxed by the registrar of the Wardens Court or a taxing officer of a District Court or of the Supreme Court as the warden may direct.

   (3) A party may apply to a Supreme Court judge for a review of the taxation.

   (4) Any order of the Wardens Court striking out any action or matter upon the grounds that the Wardens Court does not have jurisdiction to hear and determine the matter may include any award of costs to the same extent and recoverable in the same manner as if the Wardens Court had jurisdiction and had found against the party bringing the action or matter.

7. The legislative scheme provided for the Wardens Courts to consider applications for a mining lease (s.268, 269, 270) in a similar way to which the Land Court now considers such applications.  Thus it is clear that just at s.368 of the Act had to be read together with the provision of s.268 to which the objector has referred, so can s.34(1) of the Land Court Act be read together with those provisions. 

8. At the time s.268 was repealed the legislature enacted s.50 of the Land and Resources Tribunal Act 1999 which empowered the Land and Resources Tribunal to award costs in the “special circumstances” of any proceeding. That provision co-existed with s.268(8) and (9) of the Mineral Resources Act.  In Leinung v Mann [2000] QLRT 6 Koppenol P held that s.50 was the source of the Tribunal power to award costs, if any, in that case.

9. In re: Barry and Barrett [2002] QLRT 20 the Land and Resources Tribunal had before it an application for costs which fell under s.268(8). The learned Deputy President said:

   [5] There are settled rules of statutory interpretation as to which provision should apply. Firstly, s. 50 of the LRT Act commenced on 21 April 2000. Section 268(8) of the MRA, though a prior provision, was subsequently amended, the amendment taking effect on 18 September 2000. The amendments to the MRA at that time are relevant, as, inter alia, they dealt specifically with jurisdiction of the Tribunal and costs. In particular the general provision as to costs in the MRA was removed.[2] However, and importantly, the substance of s. 268(8) of the MRA was retained. Clearly, the costs provisions of the LRT Act were not intended to stand in the place of the MRA costs provisions now in operation.[3]

   [6]     Where there are 2 inconsistent statutes, the later act prevails.[4] However, in my view, there is no inconsistency between the two provisions under consideration here. Effect can be given to both Acts at the same time.[5] In short, s. 268(8) of the MRA can be read, on its own terms, as a statutory special circumstance under s. 50 of the LRT Act.

   [2]            See the now repealed s. 368 MRA in operation prior to 18 September 2000.

   [3]          See Mitchell v Scales (1907) 5 CLR 405 for the test as to whether one act was intended to stand in the place of

   another.

   [4]            See Goodwin v Phillips (1908) 7 CLR 1 per Griffith CJ @ 7.

   [5]            See Rose v Hvric (1963) 108 CLR 353 @ 360.

10. There is no requirement under s.34(1) of the Land Court Act for special circumstances to be identified. However it is clear that s.268(8) and (9) of the Mineral Resources Act can be understood as providing particular applications of the costs power now expressed in s.34 of the Land Court Act.  The history of the power to award costs under the Mineral Resources Act makes it clear that s.268(8) and (9) were always viewed as particular examples of the power to award costs whether that power lay in the Wardens Court under the then s.368 of the Act or whether in the Land and Resources Tribunal under s.50 of the Land and Resources Tribunal Act.

11. Whilst the success of the applicant in gaining a recommendation for the grant of a mining lease is not an irrelevant consideration in a costs application of this type it is not in my view conclusive. The landholder has exercised a statutory right to object in circumstances where the grant of a mining lease can lead to an unwelcome intrusion on to the objector’s property. Nevertheless an objector must conduct himself reasonably in progressing an objection. As the reasons in the substantive decision demonstrate, the objector founded the bulk of his grounds of objection on matters of a formal nature in respect of which no prejudice to the objector was demonstrated. Each of those objections was dismissed, albeit in the case of two matters, only following a conclusion by me under s.392 of the Mineral Resources Act that substantial compliance was found, thus leading to a dismissal of the relevant grounds of objection.  I might also mention that whereas the applicant sought a lease with a 50 year term, my conclusion was to recommend a 21 year term only. 

12. The applicant submitted that as the applicant was “entirely successful” he has a strong prima facie case for costs “having regard to the general principle that costs follow the event”. Rule 681 of the Uniform Civil Procedure Rules 1999 incorporates the common law principle that has long dominated the exercise of a discretion to order costs providing that costs should “follow the event”.  Notwithstanding that, there is no reference to that principle in the Land Court Act nor the Mineral Resources Act. It follows that the discretion bestowed on the Court by s.34(1) is complete and ought not to be exercised by reference to any guiding rule or principle other than that the discretion be exercised judicially.

13. The objector landholder has a statutory right to object to an application for a mining lease and in my view ought not to be the recipient of a contrary costs order in circumstances where that right has been exercised reasonably and responsibly.  I am concerned in the present case that the manner in which the objector focused extensively on matters of a formal nature, whilst not claiming any resultant prejudice, must go against the objector in an order for costs.  Whilst the discretion exercised in considering an objection against an application for a mining lease is administrative in nature rather than judicial, that does not lead to a conclusion that an objection may be made replete with all manner of trivial complaint.  The applicant ought to have the costs associated with the need to meet a case involving such formal non-prejudicial matters rather than simply addressing the substantive aspect of the application for mining lease.  Accordingly I conclude that the objector must pay some of the costs of the objector.

14. It is ordered:

    1.That the objector pay 40% of the applicant’s costs of the proceeding before the Land Court, as agreed or to be assessed, inclusive of the following:

    (a)     the directions hearing on 5 and 22 August 2008 and on 15 October 2008; and

    (b)     the hearing before the Land Court on 25 November 2008.

RP SCOTT

MEMBER OF THE LAND COURT