|
LAND COURT,
BRISBANE
2 July 1999
Re: Appeal against determination of the
Mining Wardens Court of compensation
payable in terms of section 282 of the
Mineral Resources Act 1989 in respect of
Mining Lease Application Nos 2051, 2052,
2058, 2059 and 2060, in the Emerald Mining
District.
(A97-76).
Adi George Zimmerebner
v.
Charles Joseph Hawkins, Jacqueline Hawkins and Gloria Walter
DECISION ON APPLICATION FOR COSTS
This is an application for costs under section 282(6) of the Mineral Resources Act 1989 (“the MRA”) following the judgment of the Land Court in respect of an appeal against the determination of compensation by the Mining Wardens Court.
On 30 March 1999 the Land Court delivered judgment on an appeal by Mr Zimmerebner against the determination of the Mining Wardens Court of compensation of $20,000 payable to the respondents in respect of the granting of five applications for mining leases. The Land Court allowed the appeal and varied the Mining Warden’s determination to $14,700, ordering that the sum of $8,700 be paid within 60 days of the date of the grant of the mining leases and the balance $6,000 be paid in equal annual instalments of $2,000 per annum from the commencement of mining. In its reasons for judgment the Court said that in normal circumstances it would assess compensation at $18,700. However, as more than two years had elapsed since the nominal commencement date of the renewed leases, it seemed to the Court to be inequitable that the appellant should pay “injurious affection” for damage which had not occurred for those two years.
Leave was given to the parties to make written submissions with regard to costs. Both the appellant and the respondents have applied for costs of the appeal, with the appellant submitting that alternatively there should be no order as to costs. My consideration of the merits of their applications is based on their written submissions.
The submissions on behalf of the respondents rely on the contention that in considering the matter of costs under the MRA the Court should take into account principles which are analogous to those which the Court takes into account pursuant to the provisions of the Acquisition of Land Act 1967. Although this was an appeal, both parties abandoned the cases which they presented before the Mining Wardens Court and mounted entirely new cases, so that the appeal proceeded in most respects as a hearing de novo. Both parties presented valuation evidence, the appellant in respect of an amount of $2,600, the respondents in respect of approximately $22,000. The award of $14,700 was clearly closer to the valuation submitted in evidence by the respondents.
Under the provisions of section 27 of the Acquisition of Land Act, the Court’s discretion to award costs is fettered by sub-section (2). If the amount of compensation determined is nearer to the amount finally claimed by the claimant costs, if awarded, can only be awarded to the claimant. In the respondents’ submission, the respondents in this case…
Continue reading Zimmerebner v Hawkins
Sign in free to access the full text
- AGLC
- Zimmerebner v Hawkins [1999] QLC 71
- Case
- [1999] QLC 71
- Decision Date
CaseChat Overview and Summary
The court examined whether the discretion to award costs under the MRA was analogous to that under the Acquisition of Land Act 1967. It noted that the respondents' argument was based on a misinterpretation of the Bullock case. The court found that the principles applied in Smith v. Cameron and Bucholz and Others v. Great Mines Limited did not support the respondents' claim for costs. The appellant argued that the Land Court had an unfettered discretion in awarding costs, and since the appeal had been successful in reducing the compensation amount, costs should follow the event. The court considered the nature of the appeal, which involved new evidence and arguments, and decided that the principles applicable to hearings rather than appeals should guide the discretion to award costs.
In its reasoning, the court emphasized the judicial nature of the discretion to award costs and referenced Toohey J's principles in Hughes v. Western Australia Cricket Association. The court was cautious about apportioning costs based on the success or failure on specific issues, mindful of Jacobs J's cautionary remarks in Cretazzo v. Lombardi. Ultimately, the court found it inappropriate to apportion costs proportionally based on the issues. Instead, it considered the totality of the evidence, the conduct of the case, and the attitudes of the parties. Given these factors, the court exercised its discretion and made no order as to costs.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.