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Zimmerebner v Hawkins

Zimmerebner v Hawkins

Case [1999] QLC 71 2 July 1999

Civil Litigation & Procedure

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[1999] QLC 71

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Zimmerebner v Hawkins

Details

AGLC: Zimmerebner v Hawkins [1999] QLC 71
Case: [1999] QLC 71
Decision Date: 2 July 1999

CaseChat Overview and Summary

The case of Zimmerebner v. Hawkins is an appeal against a determination of the Mining Wardens Court of compensation payable under the Mineral Resources Act 1989. The dispute involves five mining lease applications in the Emerald Mining District. The appellant, Adi George Zimmerebner, appealed the Mining Wardens Court's decision to award $20,000 in compensation to the respondents, Charles Joseph Hawkins, Jacqueline Hawkins, and Gloria Walter. The Land Court allowed the appeal, reducing the compensation to $14,700. The case then proceeded to a consideration of costs under section 282(6) of the MRA. The respondents argued for an award of costs, claiming their valuation was closer to the court's determination. They cited Bullock v. Tindale as precedent, where the court awarded costs to the party whose claim was closer to the final compensation.

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