Deimel v Phelps [2020] QLC 2

LAND COURT OF QUEENSLAND CITATION: Deimel v Phelps [2020] QLC 2 PARTIES: Wolfgang Deimel (applicant) v Mark Phelps (objector) FILE NO: MRA378-19 (MLA 100140) DIVISION: General Division PROCEEDING: Hearing of an application for costs DELIVERED ON: 7 January 2020 [ex tempore] DELIVERED AT: Brisbane HEARD ON: 7 January 2020 HEARD AT: Brisbane PRESIDENT: FY Kingham ORDER: The objector must pay the applicant the sum of $1,153.83 for reasonable costs necessarily incurred in this case. CATCHWORDS: ENERGY AND RESOURCES – MINERALS – COURTS AND TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – QUEENSLAND – COSTS – where an application for a mining lease was referred to the Court for a mining objection hearing – where objection was withdrawn – whether costs can be awarded to a self-represented litigant – where the Court declined to award costs for the litigant’s time and for loss of mine production – where the Court awarded costs for out-of-pocket expenses incurred where the Applicant attended as a potential witness Land Court Act 2000 s 4(1), s 7, s 24, s 34, s 52A, s52B Land Court Rules r 4 Mineral Resources Act 1989 s 265(10), s 268(9) -- 1 of 6 -- 2 Aussie Invest Corporation Pty Ltd v Hobsons Bay City Council (2004) 22 VAR 212; [2004] VCAT 2188, applied Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14, applied Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59, cited Maronis Holdings Ltd v Nippon Credit Australia Ltd [2002] NSWSC 838, cited. Overton Investments Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (2001) 113 LGERA 439; [2001] NSWCA 137, cited W (deceased) v W [2004] FamCA 319, cited APPEARANCES: W Deimel, the applicant (self-represented) No appearance for the objector [1] Mr Phelps has withdrawn his objection to Mr Deimel’s application for a mining lease. That means it was unnecessary for the Court to decide Mr Deimel’s application to strike out Mr Phelp’s objection as not being “properly made”. Further, as there is no other objection to the application, the Court has remitted the application to the chief executive of the Department of Natural Resources Mines and Energy for further processing.1 [2] Mr Deimel now seeks an award of costs related to the hearing of his application. [3] Mr Phelps has not appeared today. An attempt to contact him by telephone failed as well. Mr Deimel has proved service on Mr Phelps of his costs application and the Court has advised Mr Phelps of the date for hearing and the arrangements that the Court would call if he did not appear in person. In the absence of any request by Mr Phelps to adjourn the costs application or explanation for his failure to appear, I proceeded with the hearing. [4] The Court has power to award costs under the Land Court Act 2000: “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. (2) If the court does not make an order under subsection (1), each party to the proceeding must bear the party’s own costs for the proceeding.”2 [5] Although s 34 of the LCA refers to proceedings, that section also applies when the Court is conducting a mining objection hearing, as here.3 1 Mineral Resources Act 1989 s 265(10). 2 Land Court Act 2000 s 34. 3 Ibid ss 52A, 52B. -- 2 of 6 -- 3 [6] However, the Court also has a specific power to award costs conferred by s 268(9) of the Mineral Resources Act 1989: “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.” [7] Because the first of the two circumstances identified in s 268(9) has occurred in this case, s 268(9) is the operative provision for Mr Deimel’s application. [8] S 268(9) is a facilitative not a prescriptive provision. It confers on the Court a power to award costs; it does not establish a general rule that the Court will order costs if the qualifying circumstances are established. The Court has an unfettered discretion, which it must exercise judicially.4 The parties’ conduct and Mr Phelps’ reason for withdrawing the objection are relevant factors on this application. [9] Because Mr Phelps objected to the application, DNRME referred the application to the Court for an objection hearing. That delayed the Minister deciding Mr Deimel’s application. Mr Deimel has prepared for a mining objection hearing, which will not proceed, and was put to the trouble of applying to strike out the objection. Against that, Mr Phelps has a statutory right to object to this uninvited use of the land. A costs order is not punitive, but to compensate the successful party for reasonable costs necessarily incurred in the case.5 [10] An important factor in this case is Mr Phelps’ reason for withdrawing his objection. Because he did not respond to Mr Deimel’s application for costs, he has not explained why he withdrew the objection. There is no evidence to suggest it arose out of settlement negotiations or through any event beyond Mr Phelps’ control. It happened after I adjourned Mr Deimel’s application to strike out the objection. I granted the adjournment so Mr Phelps could prepare to lead evidence from departmental officers about advice he says they gave him about his rights of objection. His decision to withdraw without leading that evidence gives rise to a reasonable inference he was unable to do so, particularly given his lack of explanation of his decision to withdraw. [11] In those circumstances, Mr Deimel has a sound basis for submitting he should have some award of costs, and I will order some costs are paid for. 4 Overton Investments Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (2001) 113 LGERA 439, 447; [2001] NSWCA 137. 5 Latoudis v Casey (1990) 170 CLR 534, 543; [1990] HCA 59. -- 3 of 6 -- 4 [12] The issue is what costs may be awarded, given Mr Deimel represented himself. Mr Deimel made some claims that involve an allowance for time spent travelling to and from, and for attending hearings. He also indicated his desire to be compensated for the loss of production over the period his application has been before the Court.6 He has also made claims for the cost of travel to and from the Court, and his cost of accommodation and meals. [13] In Cachia v Hanes7, the High Court determined that “costs,” as referred to in Part 52 of the Supreme Court Rules 1970 (N.S.W.), “do not include time spent by a litigant who is not a lawyer in preparing and conducting his case. They are confined to money paid or liabilities incurred for professional legal services.”8 The Court also denied a claim for compensation for damages as a result of the case. [14] Applying Cachia, this Court cannot award Mr Deimel costs to compensate him for his time in relation to this case. [15] Although a court of record, the Land Court is a specialised judicial tribunal.9 Parties have a right to represent themselves or to engage either a lawyer or agent to represent them without leave of the Court.10 The Court must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms or the practice of other courts.11 [16] Some tribunals have interpreted equivalent provisions to allow costs to be awarded that a court would not order under the civil procedure rules. For example, in Aussie Invest Corporation Pty Ltd v Hobsons Bay City Council12, Morris J referred to Cachia, but said that costs are ultimately a matter that turns on the interpretation of the relevant statute. Taking into account the purpose and procedure of the Victorian Civil and Administrative Tribunal, it could award costs in favour of an unrepresented person to compensate them for wages lost and travelling expenses incurred in attending a hearing.13 However, he considered it could not make any award for time spent by the person in relation to the proceedings. 6 T1-6, line 43 to line 45. 7 (1994) 179 CLR 403; [1994] HCA 14. 8 Ibid 409. 9 Land Court Act 2000 s 4(1). 10 Ibid s 24. 11 Ibid s 7. 12 (2004) 22 VAR 212; [2004] VCAT 2188. 13 Ibid [18]–[19]. -- 4 of 6 -- 5 [17] Nevertheless, a costs order is made by way of (partial) indemnity for costs actually incurred in the conduct of litigation, not to compensate the litigant for loss suffered in the course of the litigation.14 For that reason, his Honour did not allow a claim for time spent travelling to and from, or attending a hearing, or preparing his case. [18] Even applying the reasoning in Aussie Invest, I decline Mr Deimel’s claims for his time and for his loss of production. [19] His remaining claims are for travel expenses, accommodation, and meals. None of these are out-of-pocket expenses that would be allowed under an assessment of legal costs, unless they were costs of attending to give evidence as a witness,15 although they might be allowed applying the reasoning in Aussie Invest. [20] There are indications in the Land Court Act and Rules that, despite this being a judicial tribunal, the less generous approach of the civil courts applies. Firstly, although there is a power to award costs, there is no mechanism to assess costs without accessing the provisions of the Uniform Civil Procedure Rules 1999. Nor does the Land Court Act or Rules provide any guidance about the factors to consider in awarding costs or the items that may be included. [21] That said, r 4 of the LCR, which applies the UCPR where the rules make no provision, only applies to proceedings and this is a mining objection hearing. [22] If Mr Deimel were represented, he could not recover his costs of attending, except for a day upon which he was required to give evidence as a witness. I question whether a self-represented party should be in a better position to recover costs, without a clear statutory basis for doing so, than a represented party. [23] Mr Deimel filed an affidavit regarding the circumstances for the objection, and was therefore a witness who may have been called upon to answer questions at the hearing on 2 December 2019 of his application to strike out Mr Phelps’ objection. Therefore, under any approach to costs, Mr Deimel should recover his travel and accommodation costs for the hearing on that day. He should also recover his accommodation costs for the hearing scheduled for 10 December 2019, which was cancelled because Mr Phelps 14 Cachia v Hanes (1994) 179 CLR 403, 410-411; [1994] HCA 14. 15 W (deceased) v W [2004] FamCA 319 [49]; Maronis Holdings Ltd v Nippon Credit Australia Ltd [2002] NSWSC 838 [21]. -- 5 of 6 -- 6 withdrew his objection at the last minute. Mr Deimel has advised the Court that he was unable to obtain a refund of that costs, so he should recover the costs on that day. [24] Although Mr Deimel was advised that it was not necessary for him to attend this hearing in person, he chose to do so. Given the Court indicated in advance that he would be required to prove service of his application upon Mr Phelps, I regard him also as attending the hearing in the category of a witness, as he was called upon by the Court to answer questions about matters that are important to his application. I have also allowed his costs of travel and accommodation for the hearing on 7 January 2020. [25] To reiterate, I have allowed travel ($374.40) and accommodation ($160) costs for 2 December 2019, the accommodation cost ($126) that was non-refundable for 10 December 2019, and travel ($374.40) and accommodation ($119.03) costs for 7 January 2020. On my reckoning, that amounts to $1153.83. [26] In my view, those costs were necessarily and reasonable incurred by Mr Deimel and relate to his attendance at Court as a witness in the application to strike out Mr Phelps’ objection and his application for costs of these proceedings. I decline his claim for meals as, regardless of the hearing, he would have incurred some expense for his meals on those days. Order: The objector must pay the applicant the sum of $1,153.83 for reasonable costs necessarily incurred in this case. FY KINGHAM PRESIDENT OF THE LAND COURT -- 6 of 6 --