Zimmerebner v Hawkins

[1999] QLC 71

[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

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 are analogous to claimants (dispossessed landowners) under the Acquisition of Land Act. As the determination of the Land Court is closer to their valuation, they submit that they have clearly succeeded and are entitled to costs.
           In support of their submission, the respondents rely on the decision of the Land Court in Bullock v. Tindale (1988-89) 12 QLCR 141. That matter involved the appeal to the Land Court against the determination of the Mining Warden under the provisions of the Mining Act 1968, the predecessor of the MRA. In that case the Court commented that the amount finally determined was closer to the amount claimed by the respondent and under the Acquisition of Land Act the respondent would be the only party entitled to receive costs. The Court went on to say that it could find no sound ground to refuse to make an order for costs in favour of the respondent.
In my view, the decision of the Court in that case hardly amounts to finding that the Court’s discretion to grant costs under the Mining Act is analogous to the fettered discretion under section 27 of the Acquisition of Land Act. That seems to be only one of the considerations which the Court took into account in arriving at its decision as to costs. In Smith v. Cameron (1986) 11 QLCR 64, the Land Court found that the principles and practices of valuation which applied in determining compensation for the compulsory taking of land could also be applied to provisions of the Mining Act, which are similar to those of section 281(3)(a) of the MRA. However, in that case there was no order as to costs. Therefore, it is not authority for extending the similarity to the fettered discretion to award costs under section 27 of the Acquisition of Land Act to the unfettered discretion provided for in the MRA. For similar reasons, I do not think that the decision of the Land Court not to make any order as to costs in Bucholz and Others v. Great Mines Limited and Another (1986-87) 11 QLCR 269, is of any assistance in the present matter.
           The respondents’ application was further based on the contention that the appellant failed in his principal contentions concerning

·    the alleged oral variation of the 1991 agreement that compensation be paid only at the commencement of mining; and

·    the continuing effect of the 1991 agreement into the subsequent renewals of the leases.

However, the appellant does not accept that these were the principal contentions by the appellant, submitting that the principal contention was that the two years in which mining had not occurred should be taken into account in assessing compensation.  In this the appellant was successful.

The appellant made the following submissions: The Land Court has an unfettered discretion in relation to costs of an appeal under the MRA section 282(6), but such a discretion has to be exercised judicially. The normal rule is that costs follow the event, unless there are special circumstances warranting some other order. The appellant was successful in having the amount determined by the Warden reduced to $14,700 and should be entitled to costs.

Although this matter was technically an appeal under section 282 of the MRA, no acceptable valuation evidence was given in the Mining Wardens Court and each party was self represented. Because of the strong feelings of both parties about the matter, it was probably inevitable that it would go to appeal. On appeal, both parties called expert valuers and ran entirely new cases. In such circumstances, it seems to me that it would be more appropriate to apply the principles in relation to costs which are applicable to hearings, rather than those applicable to appeals.

The general power of this Court to award costs is derived from section 41(9) of the Land Act 1962 which provides that “The Court may make such order as it thinks fit as to the costs of or incidental to any matter that it has jurisdiction to hear and determine …”. The general power is not qualified in any way by section 282(6) of the MRA, which provides that the Land Court “… may make such order as to costs of the appeal as it thinks fit”.

The principles to be applied in considering the discretion of courts to award costs was referred to by Toohey J in Hughes v. Western Australia Cricket Association (Inc) [1986] ATPR 48,134 at 48,136. His Honour drew attention to the fact that the discretion with regard to costs must be exercised judicially before proceeding to set out in a summary way the effect of the discretion of Australian and English courts on the way in which the discretion is to be exercised:

“1.Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order.  Ritter v. Godfrey (1920) 2 KB 47.

2.Where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed.   Forster v. Farquhar (1893) 1 QB 564.

3.A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party’s costs of them.  In this sense, ‘issue’ does not mean a precise issue in the technical pleading sense but any disputed question of fact or of law.  Cretazzo v. Lombardi (1975) 13 SASR 4 at p.12. ”

However, Toohey J went on say that it is necessary to keep in mind the caveat raised by Jacobs J in Cretazzo v. Lombardi at p.16, expressing his “cautious disapproval” of applications to apportion costs according to the success or failure of one party or the other on various issues of fact or law which arise in the course of the trial. In Cretazzo, Jacobs J said at p.16:

“The ultimate ends of justice may not be served if a party is dissuaded by the risk of costs from canvassing all issues, however doubtful, which might be material to the decision of the case.  There are, of course, many factors affecting the exercise of the discretion as to costs in each case, including in particular, the severability of the issues, and no two cases are alike.  I wish merely to lend no encouragement to any suggestion that a party against whom the judgment goes ought nevertheless to anticipate a favourable exercise of the judicial discretion as to costs in respect of issues upon which he may have succeeded, based merely on his success in those particular issues.”

In the present case the appellant succeeded on some issues and the respondents succeeded on others.  While I did not accept totally the valuations of either Mr Compton for the respondents or Mr Brown for the appellant, I did gain some assistance from both of them.  Of the major issues concerning the effect of the alleged oral variation on the 1991 compensation agreement, the appellant was unsuccessful.  However, the respondents did not succeed on the major issue of excluding the effect on compensation of the fact that there had been no mining for two years out of the five year term of each lease.

In my view, it would be inappropriate to attempt to weigh the effect of the success or otherwise of each of the issues and attempt to apportion costs in some proportional manner.  Rather I think it more appropriate to consider the totality of the evidence, the manner in which each case was conducted and the attitude of the parties.

In the circumstances, having regard to all those matters, in the exercise of my discretion, I make no order as to costs.

President of the Land Court