Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No 5) [2011] QLC 74

LAND COURT OF QUEENSLAND CITATION: Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No. 5) [2011] QLC 74 PARTIES: Cherwell Creek Coal Pty Ltd (applicant) v. BHP Queensland Coal Investments Pty Ltd, QCT Resources Pty Ltd, BHP Coal Pty Ltd, QCT Mining Pty Ltd, Mitsubishi Development Pty Ltd, QCT Investment Pty Ltd and Umal Consolidated Pty Ltd (respondents) FILE NO: MRA1332-08 DIVISION: General Division PROCEEDING: Application for costs DELIVERED ON: 22 November 2011 [Ex Tempore] DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER: His Honour, PA Smith ORDER: 1. The respondent pay 75% of the costs of the applicant of and incidental to its application for disclosure dated 17 October 2011, assessed in the usual manner. CATCHWORDS: Costs – for interim application in long standing matter – issue resolved prior to application hearing – consideration in award of costs – part of cause or individually awarded – respondent to pay 75% of applicant’s costs. APPEARANCES: Ms Chapple of Counsel for the applicant Mr Pomerenke of Counsel for the respondent SOLICITORS: Mr Boys of Holding Redlich Lawyers for the applicant Mr Hurford of Allens Arthur Robinson for the respondent [The applicant had brought an application for further disclosure. The application was listed for hearing on 22 November 2011. On 21 November 2011 the parties substantively resolved the application save for the issue of costs. As a consequence of the agreement between the parties the timeframe for the next steps in the matter have been significantly delayed.] -- 1 of 3 -- 2 [1] I have expressed my concern at previous direction hearing in this matter that I am likely to be retired before this matter will ultimately be set down for hearing. Whilst said partly in jest, the further the matter progresses, the more likely it seems that even though in a subsequent appointee to myself may also be retired before this matter finally gets on for hearing. And that is clearly something which the Court is concerned with, and I am determined to avoid. [2] The concept of having the provision of expert reports broken down to bite sized pieces to work through the expert reports was itself a compromise solution to overcome the objections by each side to progressing the hearing of this matter in a normal way and was arrived at so as to hopefully facilitate the setting down of the hearing in this matter by, from memory, about 2013. Clearly now that time line will blow out by at least a couple of years. [3] That background is necessary for the conclusions that I have reached in this matter. The legal representatives for both sides are highly experienced, both in representation by Counsel and by solicitors. Those lawyers, whom I have high regard for, must in accordance with their instructions, I presume, do everything that they can to further the interest of their client in resolution of this matter. That is understood and is part of the normal duty to their client that follows in this matter. [4] The quantum that is being potentially fought over in this case is also potentially huge, having been referred to as being in the billions of dollars of potential liability. This also clearly makes it important that the evidence that is placed before the Court and the work of all parties appearing before the Court is of the highest calibre to ensure that justice is met between the parties. [5] However, the complexities and the quantum of this case can also lead to an issue, (dragging the chains is perhaps the worst way of putting it), but a sense can come in amongst the parties that the matter is not going to get on for trial at any time soon and additional delay in taking time to consider matters won't really matter at the end of the day. [6] I reject that view if it is held by any of the parties and wish to see the matter progress as quickly and efficiently as it can. [7] In that regard, perhaps more could have been done by the applicant in progressing this application quicker with a high degree of urgency for having the matter set down as an urgent application at the earliest opportunity and I could have sat at night, if necessary, to have met the original time line. -- 2 of 3 -- 3 [8] Further, the respondent could have responded to the various pieces of correspondence quicker and I note that ultimately the application brought by the applicant is now not being opposed in substance by the respondent. [9] The fact that this has occurred late in the piece clearly has led to the expenditure of additional costs by both the applicant and the respondent and also has led, unfortunately, to further delay and the necessity of the extension of the times for which reports are to be provided in this matter. [10] I note that the new proposed time line for the provision of those reports is by consent between the parties and this is an acknowledgement of the realities of both the limited resources available to both sides from an expert report position as previously advised to the Court, and given the current mining boom occurring in this State and the various strain, therefore, on experts in all fields in mining, and the realities of the complexities of this case. [11] The respondent seeks costs in this matter simply be made costs in the cause and determined at the end of the day with whoever wins or loses. The applicants for their part believe that these costs should be made in the usual way and follow the event at this time. [12] In my view, perhaps the only recourse the Court has to try to get this matter moving as quickly as it can, will be costs orders and in order to perhaps give further impetus to the parties in progressing matters and having the case dealt with quickly, or as quickly as can reasonably be dealt with, is to have costs orders made in circumstances where applications have been necessarily brought which have had a result of having the matter delayed. [13] I, as mentioned, do not believe the actions in this part are completely the fault of one party and none of the fault of the other. I also do not wish to see litigation continue just on this point of costs. So I have determined that the respondents in this matter should pay 75% of the costs of the applicant of and incidental to its application for disclosure dated 17 October 2011, assessed in the usual manner. Order 1. The respondent pay 75% of the costs of the applicant of and incidental to its application for disclosure dated 17 October 2011, assessed in the usual manner. PA SMITH MEMBER OF THE LAND COURT -- 3 of 3 --