Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No 9) [2017] QLC 12 (2017) 38 QLCR 36

LAND COURT OF QUEENSLAND CITATION: Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No 9) [2017] QLC 12 PARTIES: Cherwell Creek Coal Pty Ltd (applicant) v BHP Queensland Coal Investments Pty Ltd (ACN 098 876 825) QCT Resources Pty Ltd (ACN 010 808 705) BHP Coal Pty Ltd (ACN 010 595 721) QCT Mining Pty Ltd (ACN 010 487 840) Mitsubishi Development Pty Ltd (ACN 009 779 873) QCT Investment Pty Ltd (ACN 010 487 831) Umal Consolidated Pty Ltd (ACN 000 767 386) (respondents) FILE NO/s: MRA1332-08 DIVISION: General division PROCEEDING: Application for costs DELIVERED ON: 15 March 2017 DELIVERED AT: Brisbane HEARD ON: Submissions closed 3 March 2017 HEARD AT: Heard on the papers PRESIDENT: FY Kingham ORDER/S: 1. The following are costs in the cause: (a) the costs of the Respondents’ application for an extension of time to file its amended defence; and (b) the costs of the Applicant’s application to strike out parts of the amended defence. 2. The question of costs thrown away either by the amendments to the defence or the vacation of the trial dates is reserved. -- 1 of 5 -- 2 CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where the respondent filed an amended defence out of time –where the application to strike out the pleadings was dismissed – where the application for an extension of time was granted – where both parties sought costs of both applications – where the costs of the application will be costs in the cause – where costs thrown away are reserved Land Court Act 2000, s 34, s 34(1), s 34(2) Uniform Civil Procedure Rules 1999, r 695 Barns v Director-General, Department of Transport (1997) 18 QLCR 133 BHP Queensland Coal Investments Pty Ltd & Ors v Cherwell Creek Coal Pty Ltd (2009) 30 QLCR 140 BHP Queensland Coal Investments Pty Ltd & Ors v Cherwell Creek Coal Pty Ltd (No 2) (2009) 30 QLCR 173 ERO Georgetown Gold Operations Pty Ltd v Henry (No 2) [2016] QLAC 3 O’Keeffe Nominees Pty Limited v BP Australia Limited and Trade Practices Commission (No 2) [1995] 55 FCR 591 APPEARANCES: G Gibson QC and Ms J Chapple of Counsel (instructed by Holding Redlich Lawyers) for the applicant S Doyle QC and Mr A Stumer of Counsel (instructed by Allens) for the respondents [1] On 17 February 2017 I dismissed Cherwell Creek’s application to strike out parts of BMA’s1 amended defence and granted BMA’s application for an extension of time to file that pleading. These orders determine competing submissions about costs of those applications and costs thrown away due to the amendments to the defence and the vacation of trial dates. Costs of certain appearances leading up to these applications have already been reserved. 1 The Respondent companies are collectively described as BMA in these reasons. -- 2 of 5 -- 3 General principles [2] Section 34(1) of the Land Court Act 2000 confers discretion on the Land Court to order costs in a proceeding as it considers appropriate. That discretion is unfettered except to the extent it is confined by the subject matter and the scope and purpose of the legislation.2 Section 34(2) provides that if the Court does not make any other order, each party to a proceeding must bear their own costs. [3] Although s 34 does not give pre-eminence to the rule that a successful party ought to be awarded its costs; it does not create a general rule that each party bear their own.3 [4] The general rule that costs will usually follow the event is deeply embedded in our law and has been expressly recognised in this jurisdiction.4 [5] The characteristics of the parties is a relevant factor in determining costs. The parties in this case are significant commercial interests well represented by specialist solicitors and leading counsel.5 [6] It is also relevant that these are interlocutory proceedings. The primary concern that an order for costs reflect the justice of the situation, is the reason that on many interlocutory questions the costs are reserved.6 The parties’ contentions [7] Both Cherwell Creek and BMA have sought an award of costs on both applications. [8] Cherwell Creek argued the two applications were inextricably linked and that BMA had conceded it needed the indulgence of the Court to file its amended defence. The delay in filing was not due to any conduct by Cherwell Creek. Its opposition was reasonable given there were some deficiencies in the amended pleading related to what has been described as the Judicial Review allegations. Further, BMA could have 2 BHP Queensland Coal Investments Pty Ltd & Ors v Cherwell Creek Coal Pty Ltd (2009) 30 QLCR 140 at 144-5. 3 ERO Georgetown Gold Operations Pty Ltd v Henry (No 2) [2016] QLAC 3 at [24]. 4 Barns v Director-General, Department of Transport (1997) 18 QLCR 133 at 134; BHP Queensland Coal Investments Pty Ltd & Ors v Cherwell Creek Coal Pty Ltd (2009) 30 QLCR 140 at 146. 5 BHP Queensland Coal Investments Pty Ltd & Ors v Cherwell Creek Coal Pty Ltd (2009) 30 QLCR 140 at 146; BHP Queensland Coal Investments Pty Ltd & Ors v Cherwell Creek Coal Pty Ltd (No 2) (2009) 30 QLCR 173 at 176. 6 O’Keeffe Nominees Pty Limited v BP Australia Limited and Trade Practices Commission (No 2) [1995] 55 FCR 591 at 598. -- 3 of 5 -- 4 flagged the amendments earlier. The amendments will result in significant additional costs for Cherwell Creek. The potential for a costs order to ameliorate Cherwell Creek’s prejudice was a factor in the decision to extend time to file the amended defence. [9] BMA argued it was successful on both applications. In the strikeout application BMA succeeded on each of the four issues and there was no reason for costs not to follow the event. That fails to acknowledge that BMA required a procedural indulgence from the Court. [10] While r 695 of the Uniform Civil Procedure Rules 1999 does not strictly apply (as it relates to times fixed by the rules, not an order of the Court), Cherwell Creek argued it should guide the Court in exercising its discretion in this application. That would favour BMA paying Cherwell Creek’s costs, even though successful on the application. [11] However, that must be considered in context. The extension was only a few weeks and minor in the context of a long running case. Cherwell Creek has previously had the benefit of a much longer extension in its favour. [12] While there was a deficiency in the amended defence relating to the Judicial Review allegation that was the only point in issue on which Cherwell Creek might be considered successful. [13] The substantial focus of the competing applications related to the relevance and merit of issues raised in defence of the claim. It is more likely the costs will reflect the justice of the case if they follow the event in these proceedings. For those reasons, I consider the costs of these applications should be costs in the cause. [14] Turning to costs thrown away, any prejudice Cherwell Creek has suffered can still be ameliorated by a costs order. Cherwell Creek wants an order in its favour which is not enforceable until the conclusion of the proceedings. If Cherwell Creek is, in fact, prejudiced by the amended defence or the trial dates being vacated, they will be in no worse position by an order reserving that question. The Court will be in a better position to assess prejudice after the trial. -- 4 of 5 -- 5 Orders [15] I make the following orders: 1. The following are costs in the cause: (a) the costs of the respondents’ application for an extension of time to file its amended defence; and (b) the costs of the applicant’s application to strike out parts of the amended defence. 2. The question of costs thrown away either by the amendments to the defence or the vacation of the trial dates is reserved. FY KINGHAM PRESIDENT OF THE LAND COURT -- 5 of 5 --