Baralaba Coal Pty Ltd & Anor (administrators appointed) v Paul Stephenson and Chief Executive, Department of Environment and Heritage Protection (No. 2) [2016] QLC 25 (2016) 37 QLCR 55

LAND COURT OF QUEENSLAND CITATION: Baralaba Coal Pty Ltd & Anor (administrators appointed) v Paul Stephenson and Chief Executive, Department of Environment and Heritage Protection (No. 2) [2016] QLC 25 PARTIES: Baralaba Coal Pty Ltd (administrators appointed) and Wonbindi Coal Pty Ltd (administrators appointed) (applicants) v Paul Stephenson (respondent) and Chief Executive, Department of Environment and Heritage Protection (co-respondent) FILE NO: EPA054-15 DIVISION: General Division PROCEEDING: Application for costs DELIVERED ON: 21 April 2016 DELIVERED AT: Brisbane HEARD ON: 18 February 2016 HEARD AT: Brisbane MEMBER: WA Isdale ORDER: The application for costs is refused. CATCHWORDS: Costs – objection to environmental authority – whether Land Court has jurisdiction to award costs – administrative enquiry Environmental Protection Act 1994, s 188(1) Land Court Act 2000, s 34 State Development and Public Works Organisation and Other Legislation Amendment Act 2015 No. 8 of 2015 -- 1 of 6 -- 2 Adani Mining Pty Ltd v Land Services of Coast and Country Inc & Ors (No. 2) [2016] QLC 22 Anson Holdings Pty Ltd v Wallace (2010) 31 QLCR 74 Baralaba Coal Pty Ltd & Anor (administrators appointed) v Paul Stephenson and Chief Executive, Department of Environment and Heritage Protection [2015] QLC 49 BHP Billiton Mitsui Coal Pty Ltd v Isdale [2015] QSC 107 Dunn v Burtenshaw (2010) 31 QLCR 156 Legend International Holdings Inc v Taylor Aly Awaditijia & Anor (No. 4) [2016] QLC 23 APPEARANCES: P Ambrose QC instructed by McCullough Robertson for the applicants CJ McGrath instructed by the Environmental Defenders Office for the respondent SOLICITORS: McCullough Robertson for the applicants Environmental Defenders Office for the respondent Background [1] The applicants applied for an amended environmental authority relating to mining activity. The administering authority referred the objections to the Court for an objections decision hearing as referred to in s 188(1) of the Environmental Protection Act 1994. [2] The Court conducted the hearing on 23 and 24 November 2015 and delivered its recommendation on 15 December 2015. [3] The recommendation was that the application be approved on the basis of the draft environmental authority.1 The sole remaining objector at the time of the hearing was the respondent. The Court was not satisfied that any of the respondent’s objections were made out.2 [4] On 29 January 2016, the applicants filed a general application for orders that the respondent pay their costs of and incidental to the hearing of the respondent’s objections, including reserved costs, on the standard basis. They also seek such other orders as the Court deems appropriate. The co-respondent, the statutory party in the proceeding, was not involved in the costs application. [5] In the general application, the applicants state that they seek the costs orders on the basis of the Court’s power to award costs pursuant to s 34(1) of the Land Court Act 2000 (LCA). 1 Baralaba Coal Pty Ltd & Anor (administrators appointed) v Paul Stephenson and Chief Executive, Department of Environment and Heritage Protection [2015] QLC 49. 2 Ibid at [53]. -- 2 of 6 -- 3 [6] The Court’s jurisdiction to award costs is found in s 34 of the LCA which provides: 34 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. In the present case, there is no legislation contrary to s 34, so that the only question is whether s 34 applies. The applicants’ submissions [7] It was robustly submitted by Queen’s Counsel for the applicants that the word “proceeding”, where it appears in s 34 means all of the matters which the Land Court deals with, the word having a broad range of possible meanings.3 The decision of the Land Appeal Court in Dunn v Burtenshaw4 was submitted to be distinguishable from the present case as it dealt with an appeal to that Court. The Land Appeal Court’s decision was that no appeal lay to it from the Land Court’s administrative function because it was not a “proceeding” which led to a “decision” able to be appealed in accordance with s 64 of the LCA. The present case, it was submitted, was distinguishable on the basis that the Land Appeal Court in Dunn v Burtenshaw did not establish that matters such as the present are not a proceeding within the meaning of s 34. This was unaffected, it was submitted, by anything in the State Development and Public Works Organisation and Other Legislation Amendment Act 2015.5 [8] Submissions were also made in relation to the merits of an order in the form sought. In view of the submissions made on behalf of the respondent, it will be convenient to deal with those submissions before turning to the merits of the matter. The respondent’s submissions [9] The respondent’s submissions were that what was before the Court in this case was not a proceeding in the relevant sense so that s 34 of the LCA does not apply and therefore the Court has no jurisdiction to award costs. Support for this proposition was submitted to be found in Dunn v Burtenshaw6 and BHP Billiton Mitsui Coal Pty Ltd v Isdale.7 Reference was also made to the definition of “administrative function” which by s 11 of Act no. 8 of 2015 includes the objections decision under the Environmental Protection Act 1994. 3 BHP Billiton Mitsui Coal Pty Ltd v Isdale [2015] QSC 107 at [31], [32], [33]. 4 (2010) 31 QLCR 156. 5 Act no. 8 of 2015, s 7 of which amended s 21 of the LCA, which deals with Rules of Court which may deal with procedures relating to costs as distinct from a power to award costs. 6 (2010) 31 QLCR 156. 7 (2015) QSC 107. -- 3 of 6 -- 4 Consideration [10] Since the submissions were heard, the learned President of this Court has given the decision in Adani Mining Pty Ltd v Land Services of Coast and Country Inc & Ors (No. 2).8 This decision dealt with an application for costs under s 34 of the LCA. On page 4 of the reasons, the learned President said: “[8] In BHP Billiton Mitsui Coal Pty Ltd v Isdale, the objectors lodged objections to an application by BHP for additional surface area for a mining lease under the MRA and the associated environmental authority under the EPA. The matters were referred to the Land Court for hearing of the applications and objections. At an interlocutory stage the Land Court ordered BHP to provide disclosure. BHP sought judicial review of the Land Court’s decision on the basis that the Land Court did not have the power to make an order for disclosure. [9] The Supreme Court held that when the Land Court hears objections to mining lease applications and associated environmental authorities it does not conduct a proceeding but rather undertakes an administrative function. The Supreme Court referred to the Land Appeal Court decision of Dunn v Burtenshaw and relied upon the fact that in such matters the Land Court does not make a decision determinative of future rights but merely provides advice and recommendations to the relevant Ministers who ultimately decide whether the mining lease or environmental authority should be issued. As set out above, mining lease and environmental authority applications and objections are referred to the Land Court by the relevant departments. The Supreme Court noted that various rules in the Land Court Rules 2000 (LCR) regarding initiating proceedings were not consistent with these matters being referred to the Court. Further, disclosure was inapt for these types of matters where the Land Court must take into account matters such as the public interest which may not be in issue between the parties. The Supreme Court determined that because LCRs 13 and 4 applied to proceedings, not referrals, those rules did not enliven power in the Land Court to order disclosure in matters where the Land Court does not adjudicate upon matters in issue but provides advice to an administrative decision matter (sic).”9 [citations omitted] [11] The learned President went on to draw conclusions about the Land Court’s power to award costs. These conclusions will apply to the present case and this Court respectfully agrees with the learned President’s reasoning and conclusions which appear in the following passages. “[13] Following the decision in BHP Billiton, it is apparent that where mining lease and environmental authority applications and associated objections have been referred to the Land Court for assessment, the Land Court is conducting an administrative enquiry and not a proceeding. The Supreme Court held therefore that rr 13 and 4 LCR did not apply to referral matters as those rules were applicable to proceedings. I consider that it follows that references in any Land Court rule to proceedings render those particular rules inoperative where the Court is conducting an administrative enquiry. Unless there is some indication to the contrary, it would be illogical and inconsistent with authority to decide that some of the Court’s rules (those 8 [2016] QLC 22. Decision delivered on 23 March 2016. 9 [2016] QLC 22. -- 4 of 6 -- 5 referring to proceedings, such as rr 13 and 4) did not apply to administrative enquiries but other rules referring to proceedings did apply. [14] I also note that r 3(1) states that these rules apply to proceedings in the Land Court. It is arguable that no rule in the LCR applies to administrative enquiries because they are not ‘proceedings’. [15] The question to be determined is whether s 34 LCA is applicable to administrative enquiries. Should the sections of the LCA that refer to proceedings (such as s 34) be interpreted to include administrative enquiries as well as judicial proceedings? [16] In my opinion, this question is answered by application of the reasoning in Dunn v Burtenshaw. The Land Appeal Court held that the Land Court’s recommendation was not a decision which could be appealed to the Land Appeal Court because the Land Court’s recommendation was not a proceeding but rather an administrative step consequent upon a statutorily prescribed enquiry. [17] Although the Land Appeal Court did not expressly say so, it is a necessary consequence of that conclusion that the Land Court’s function in dealing with these referred matters under the MRA and EPA is administrative in nature because the Court must conduct an enquiry and make a recommendation to the Minister or administering authority. The Court does not finally determine the rights of the mining lease applicant. It follows that the enquiry is not a proceeding within the meaning of that term as it is used in s 64 LCA. I note that this reasoning is consistent with the reasoning in BHP Billiton. [18] On this premise, it is only logical and consistent with the principles of statutory interpretation and common sense, that the sections in the LCA that refer to proceedings do not apply to administrative enquiries, there being no reason to apply a different interpretation. [19] Consequently I consider that s 34 LCA does not provide jurisdiction for the Land Court to award costs in administrative enquiries such as this. [20] It is recognized that this conclusion is inconsistent with the decision of the Land Appeal Court in Anson Holdings Pty Ltd v Wallace where it was held that the Land Court has power, under s 34 LCA, to order costs in referral matters under the MRA and EPA. That case was decided before the decisions in Dunn v Burtenshaw and BHP Billiton were handed down. The submissions in this matter as to the nature of the Land Court’s function in dealing with referral matters were not raised in Anson Holdings v Wallace and, therefore, I consider that that decision is of no assistance in dealing with these submissions.” [citations omitted] [12] In view of the conclusions reached, the learned President found it unnecessary to deal with the merits of the order sought. The situation is the same in the present case. As no costs jurisdiction exists, the Court is unable to effectively create jurisdiction by any use of its procedures.10 It follows therefore that the general application must be refused. 10 Legend International Holdings Inc v Taylor Aly Awaditijia & Anor (No. 4) [2016] QLC 23 at [27]. -- 5 of 6 -- 6 Order The application for costs is refused. WA ISDALE MEMBER OF THE LAND COURT -- 6 of 6 --