Daraleigh Pty Ltd as Trustee for the DC & ML Dillon Trust v Calcifer Industrial Minerals Pty Ltd [2010] QLC 149

LAND COURT OF QUEENSLAND CITATION: Daraleigh Pty Ltd as Trustee for the DC & ML Dillon Trust v Calcifer Industrial Minerals Pty Ltd [2010] QLC 149 PARTIES: Daraleigh Pty Ltd as Trustee for the DC and ML Dillon Trust (applicant/respondent) v Calcifer Industrial Minerals Pty Ltd (respondent/applicant) FILE NO: MRA138-09 DIVISION: Land Court of Queensland PROCEEDING: Hearing of an application for adjournment DELIVERED ON: 14 December 2010 (ex tempore) DELIVERED AT: Cairns HEARD AT: Cairns MEMBER: Mr WA Isdale ORDER: 1. Calcifer Industrial Minerals Pty Ltd pay, on the standard basis, the costs of Daraleigh Pty Ltd as Trustee for the DC & ML Dillon Trust of and incidental to the adjournment of the hearing. 2. The question of costs relating to the change of mining plan by Calcifer Industrial Minerals Pty Ltd is reserved. 3. The matter be listed for review and directions in Brisbane on Thursday 3 February 2011 commencing at 10.00am. 4. The parties are required to comply with Rule 467 of the Uniform Civil Procedure Rules 1999 prior to dates being set for the hearing of this matter. CATCHWORDS: COSTS – COSTS OF ADJOURNMENT – STANDARD OR INDEMNITY BASIS Uniform Civil Procedure Rules 1999, Rule 467 SOLICITORS: Mr R Lilley SC with Mr P D Piggott, instructed by MacDonnells Law for Calcifer Industrial Minerals Pty Ltd and Mr PJ Davis SC with Mr J Trevino, instructed by Vandaleur & Todd Solicitors for Daraleigh Pty Ltd -- 1 of 5 -- 2 [1] The matter has been set for hearing for some time and the Court conducted a mention on Wednesday, the 8th of December 2010 when the parties advised the Court that the matter was ready to proceed, but did foreshadow the possibility of a further report. [2] It has transpired that the Court conducted an inspection yesterday and was prepared to give the parties some time, namely today, to deal with any new report. The new material has precipitated an application, which has been brought this morning by Mr Davis SC, on behalf of his client, for the matter to be adjourned and for costs on an indemnity basis. [3] There is essentially no dispute between the parties that the matter needs to be adjourned for it to be efficiently dealt with, in that if there is an attempt made now to deal with the matter piecemeal, the proceedings may be actually prolonged by that attempt. I'm prepared to accept that it will be necessary for the adjournment to be granted, so that the party affected by the new material, that is the landowner, has enough opportunity to consider and respond to it. [4] The real difference between the parties remains whether there should be an order for costs. The submissions made by Mr Lilley SC, for his client, Calcifer Industrial Minerals Pty Ltd, is essentially that the costs ought to be reserved and considered when the full information is known, essentially at the end of the proceedings and normally that is sound advice to allow the Court to understand the totality of the evidence and how each part fits into the overall evidence that is eventually led. [5] Mr Davis submits that because of the change in approach that has now been identified, a good deal of work that will have occurred will have been made unnecessary and, essentially, has been thrown away. He is asking for costs on an indemnity basis and has referred to the useful decision of Colgate Palmolive Company and Another and Cussons Proprietary Limited, a decision of Justice Shepherd in the Federal Court that is reported in Volume 118 of the Australian Law Reports at 248. I take from this decision of his Honour Justice Shepherd that, as submitted by Mr Davis, the categories for awarding indemnity costs are not closed. However the categories, as referred to, which are represented well in the headnote, refer to things such as: "allegations of fraud, knowing them to be false; the making of irrelevant allegations of fraud; evidence of particular misconduct that causes loss of time to the Court and other parties; the fact that the proceedings were commenced for some ulterior motive; the fact that the proceedings were commenced in wilful disregard of known facts or clearly established law; the making of allegations that ought never to be made; the undue prolongation of a case by -- 2 of 5 -- 3 groundless contentions; an imprudent refusal to an offer of compromise; an award of indemnity costs against a contemnor." [6] My understanding is that the general thrust of this authority, which indicates the scope for indemnity costs, is towards addressing conduct of a party which is of such a degree - such a severe degree, as to amount to almost a contempt of Court. That clearly hasn't occurred in the present case, but it appears to me that what has occurred is a lack of attention and lack of responsibility for properly preparing the case in a timely way, such that the proceedings that had been set down for this week will need to be adjourned and there will be losses that will have been incurred. [7] In my view, this is a proper case for there to be costs awarded; not to be awarded on the indemnity basis but rather on the standard basis. [8] The question remaining is whether the costs should be, as suggested by Mr Davis SC, on behalf of the applicant, for all the costs that Daraleigh has thrown away by the change of the mining plan, including the costs of and incidental to the adjournment to be agreed or assessed. [9] In my judgment, at present the most useful order is for costs to be awarded on the standard basis, being the costs which have been made necessary by the inability of the matter to proceed to hearing this week. In other words, costs thrown away by the inability of the parties to proceed today. [10] It is my judgment that the responsibility for that will rest with Calcifer Industrial Minerals Proprietary Limited and that it will be required to pay the costs associated with that loss. [11] In relation to costs that have been thrown away by the change of approach - or that may have been thrown away by the change of approach; in my view, that aspect needs to be reserved until the full determination of the case, when a suitable order can be made once all the facts are known. [12] Gentlemen, those are my orders. I reserve the right to tidy up these reasons when they turn up in the transcript. [13] But, given that, how do you wish to proceed now? MR DAVIS: The - well, the matter has to be adjourned to be a date - to a date to be fixed. HIS HONOUR: Are you both satisfied with the clarity of the order, in other words, what I'm ordering that you----- MR DAVIS: Well, as I understand it it's - I understand----- -- 3 of 5 -- 4 HIS HONOUR: -----are able to have recompense for----- MR DAVIS: -----your Honour's done two things, the first thing that your Honour has done is award the costs thrown away on the adjournment on the standard basis. HIS HONOUR: Correct. MR DAVIS: And then, secondly, and presumably because your Honour embarked upon a consideration of it, your Honour has specifically reserved the costs thrown - other costs thrown away by the - by the change of mining plan. HIS HONOUR: Correct. MR DAVIS: So, certainly, from our point of view, we'd submit that that effectively puts in train your Honour's intention, which, as I understand it, is that the costs thrown away be paid now and the other costs be reserved to a later time, but not be determined one way or another at the moment and therefore not shut the parties out with further submissions at a later time. HIS HONOUR: That's correct. MR DAVIS: In our respectful submission, the orders proposed achieve that. HIS HONOUR: The next question is the next steps. Can orders be made now to effectuate the continued hearing, which will now have to occur some time in the next year and what should those orders be? In other words, do you need further orders for the exchange of material? MR DAVIS: Well, we have some difficulties with certain things in the plan itself as well and what we had proposed was - we had proposed writing a letter to our learned friend's solicitors setting out certain difficulties and asking for a reply and proposing a timetable, because it might largely depend upon - upon what their response is as to what our response is. So, we would - we would submit that the parties be left to their own devices in the short term, but perhaps there ought to be a mention of the matter in the Land Court in the New Year, so that if there are some orders that are required, they can be made then. HIS HONOUR: Yes, now that won't be able to occur until some time into February. MR DAVIS: Yes. HIS HONOUR: Due to the Court location the resumed hearing will have to be some time after that. MR DAVIS: Yes, the mention - I think we would both anticipate might occur in Brisbane, rather than Cairns. HIS HONOUR: That would be convenient if it suits the parties, yes. And the other thing is, you gentlemen would be well aware of the provisions in the Uniform Civil Procedure Rules for certificates of readiness----- MR DAVIS: Yes. -- 4 of 5 -- 5 [14] It's my view that it would be a useful process to follow that procedure in this case, so I direct that that procedure be complied with. As you know the Land Court has its own rules and will use the UCPR’s where there are lacunae in the Land Court rules or where otherwise there is some need for making an order. So, I'll order that that provision in the UCPR be complied with, so that it is very clear and, as it were, formally on the record, that the parties certify that they are ready for trial next time, so as to increase the confidence the Court can have that the matter will be ready for trial. [15] Now, as for a date for a further review and directions, the Court will advise you and, in consultation with you, a date will be set. [16] Very well, those orders will be made. The matter is adjourned to Brisbane for review and directions at a date and time to be set, probably in early February of next year. ORDER 1. Calcifer Industrial Minerals Pty Ltd pay, on the standard basis, the costs of Daraleigh Pty Ltd as Trustee for the DC & ML Dillon Trust of and incidental to the adjournment of the hearing. 2. The question of costs relating to the change of mining plan by Calcifer Industrial Minerals Pty Ltd is reserved. 3. The matter be listed for review and directions in Brisbane on Thursday 3 February 2011 commencing at 10.00am. 4. The parties are required to comply with Rule 467 of the Uniform Civil Procedure Rules 1999 prior to dates being set for the hearing of this matter. WA ISDALE MEMBER OF THE LAND COURT -- 5 of 5 --