Department of Environment and Science v Baal Gammon Copper Pty Ltd [2020] QLC 4

LAND COURT OF QUEENSLAND CITATION: Department of Environment and Science v Baal Gammon Copper Pty Ltd [2020] QLC 4 PARTIES: Department of Environment and Science (applicant) v Baal Gammon Copper Pty Ltd ACN 149 583 933 (respondent) FILE NO: OTH749-19 DIVISION: General division PROCEEDING: Application for costs DELIVERED ON: 16 January 2020 [ex tempore] DELIVERED AT: Brisbane HEARD ON: 16 January 2020 HEARD AT: Brisbane PRESIDENT: FY Kingham ORDERS: 1. The Respondent must pay the Applicant’s costs of Appeal EPA220-18 and Application OTH749-19 on the standard basis. 2. Such costs are to be agreed between the parties or failing agreement, to be assessed. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where the respondent initially appealed the decision of the Department of Environment and Science to change the amount of financial assurance for a mining activity – where the respondent failed to comply with orders and directions and ultimately failed to adequately prosecute its appeal – where the appeal was dismissed under a self-executing order – where the Court ordered the respondent to pay costs of the appeal and the application for costs -- 1 of 4 -- 2 Land Court Act 2000 s 34 Ipswich City Council v BWP Management Limited & Anor (No 2) [2019] QLAC 2, cited Latoudis v Casey (1990) 170 CLR 534, 543; [1990] HCA 59, applied Mentech Resources Pty Ltd v MCG Resources Pty Ltd (in liq) (No 2) (2012) 33 QLCR 43; [2012] QLAC 2, cited Moreton Bay Regional Council v Mekpine Pty Ltd & Anor (No 2) [2014] QLAC 5, cited Overton Investments Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (2001) 113 LGERA 439, 447; [2001] NSWCA 137, applied APPEARANCES: J T Dillon (instructed by In-house Litigation Unit, Department of Environment and Science), for the applicant No appearance for the Respondent [1] This is an application for costs of an appeal that was brought by Baal Gammon Copper Pty Ltd against a decision of the Department of Environment and Science and also the cost of this application. [2] The appeal related to a decision regarding the financial assurance for an environmental authority held by the company. The appeal was dismissed by this Court on 9 September 2019 for Baal Gammon’s failure to comply with directions to progress the appeal. [3] The Court has a power to award costs under s 34 of the Land Court Act 2000. The Court’s power is unfettered. It may make the order as to costs it considers appropriate. However, that unfettered jurisdiction or discretion must be exercised judicially.1 There are a number of authorities that confirm that costs following the event will generally represent the just approach in the circumstances.2 [4] The Department of Environment and Science has applied for costs, citing three grounds in the application: a failure to comply with orders and directions, a failure to 1 Overton Investments Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (2001) 113 LGERA 439, 447; [2001] NSWCA 137. 2 Ipswich City Council v BWP Management Limited & Anor (No 2) [2019] QLAC 2 [7]; Mentech Resources Pty Ltd v MCG Resources Pty Ltd (in liq) (No 2) (2012) 33 QLCR 43 [4]; [2012] QLAC 2; Moreton Bay Regional Council v Mekpine Pty Ltd & Anor (No 2) [2014] QLAC 5 [12]. -- 2 of 4 -- 3 adequately prosecute its appeal, and thereby, causing the Department to incur unnecessary costs. [5] Grounds one and two are connected. That is, the failure to adequately prosecute the appeal as demonstrated by the company’s failure to comply with orders and directions.3 I will not go into the details of those failures, other than to note in general terms, it was a failure to provide a fresh financial assurance quote as directed by the Court, and a failure to prepare and provide necessary material for the hearing of a preliminary point in the appeal. Ultimately, the appeal was dismissed under a self- executing order as a result of one of the non-compliances. [6] The third ground for the application for costs is a consequence of the first two grounds. That is, because of that failure to prosecute the appeal and the non- compliance, the Department has incurred costs unnecessarily. An order for costs is not punitive but is intended to compensate a successful party in an appeal.4 This is why costs following the event is often a just approach. [7] Consistent with its prior conduct in the appeal itself, the company has not appeared this morning. I gave leave to file and read an affidavit of Ms Caitlin Steuart, which details attempts to contact the company by the Department and by my Associate. 5 [8] The Department has filed comprehensive submissions concerning costs and notes a number of relevant factors which, I accept, lead to an order in its favour being the appropriate order in this case. Firstly, the Department was wholly successful in the appeal and in its application for costs. Secondly, the appeal was dismissed under self- executing orders for the Appellant’s non-compliance. Thirdly, I accept that the issues in the appeal were very narrow and related to whether a third-party quote for an alternative calculation of the financial assurance was acceptable under guidelines issued by the Department. Fourthly, there has been persistent non-compliance with Court orders, as I have already observed. Finally, the Department was fulfilling its regulatory function and public purpose under the relevant legislation, and the company’s interests in this proceeding were entirely commercial. 3 Affidavit of Annabel Rachael Elliott, filed 21 November 2019. 4 Latoudis v Casey (1990) 170 CLR 534, 543; [1990] HCA 59. 5 Affidavit of Caitlin Georgia Steuart, filed 16 January 2020. -- 3 of 4 -- 4 [9] Taking all of those factors into account and bearing in mind that the company has again failed to attend a Court proceeding, and has put forward no reason why the Department’s application should not succeed, I will make orders in terms of the draft provided by Mr Dillon this morning. Orders: 1. The Respondent must pay the Applicant’s costs of Appeal EPA220-18 and Application OTH749-19 on the standard basis. 2. Such costs are to be agreed between the parties or failing agreement, to be assessed. -- 4 of 4 --