Anson Holdings Pty Ltd v Wallace & Anor [2010] QLAC 2 (2010) 31 QLCR 74

LAND APPEAL COURT OF QUEENSLAND CITATION: Anson Holdings Pty Ltd v Wallace & Anor [2010] QLAC 2 PARTIES: Anson Holdings Pty Ltd (appellant) v. Ian Earl Wallace (first respondent) and Chief Executive, Department of Environment and Resource Management (second respondent) FILE NO: LAC002-09 DIVISION: Land Appeal Court of Queensland PROCEEDING: Appeal ORIGINATING COURT: Land Court of Queensland DELIVERED ON: 26 March 2010 DELIVERED AT: Townsville HEARD AT: Cairns THE COURT: Cullinane J Mrs MacDonald, President of the Land Court Mr Smith, Member of the Land Court ORDER: 1. The appeal is dismissed. 2. The appellant is to pay the first respondent's costs of and incidental to the appeal unless the appellant contends that some other orders ought to be made in which case: (i) the appellant is to file and serve any submissions within 14 days; -- 1 of 13 -- 2 (ii) the first respondent is to file and serve any response submissions within 14 days of receipt of the appellant's submissions; (iii) the appellant is to file and serve any reply within 7 days of receipt of the first respondent's submissions; (iv) the Court will decide the question of costs on the written submissions of the parties without the need for oral argument. CATCHWORDS: Costs – Appeal against decision of Land Court to award – landowner objector ordered to pay 40% of costs – wide discretion in awarding – no presumption governing exercise – factors governing exercise of discretion – Land Court Act s.34. Costs – Mining Lease application – provisions in Mineral Resources Act on costs do not cover the field – not relevant to present case – Land Court Act s.34 governs; Mineral Resources Act s.268(8) and (9). Appeal – against decision of Land Court to award costs – circumstances where appeal court will review exercise of discretion of lower court. APPEARANCES: Mr G Houen, agent for the appellant Mr J Trevino of Counsel, for the first respondent SOLICITORS: Preston Law for the first respondent [1] This is an appeal against a decision of the Land Court concerning costs.1 [2] The background to that decision was that the first respondent Mr IE Wallace applied for a mining lease over land owned by the appellant Anson Holdings Pty Ltd pursuant to the provisions of the Mineral Resources Act 1989. The first respondent also applied for an associated standard environmental authority (mining lease) pursuant to the provisions of the Environmental Protection Act 1994. The appellant objected to the grant of the mining lease, the environmental authority application and to the draft environmental authority that had been issued by the Chief Executive, Environmental Protection Agency in connection with the proposed mining operation. [3] Following a hearing by the Land Court, the Court recommended to the Honourable the Minister for Mines and Energy that the objections to the environmental authority application and to the amended draft environmental authority were not sustained. It was 1 Wallace v Anson Holdings Pty Ltd [2009] QLC 0107 -- 2 of 13 -- 3 also recommended that the mining lease be granted over the application area for a term of 21 years.2 [4] The first respondent then sought an order, pursuant to s.34(1) of the Land Court Act 2000, that the appellant pay the first respondent's costs of the proceedings including the hearing of the application for the mining lease and objections and associated directions hearings. The Land Court ordered that the appellant should pay 40% of the first respondent's costs of the proceeding before the Land Court including the directions hearings and the hearing of the substantive matter.3 It is that decision which is the subject of this appeal. Decision of the Land Court [5] Section 34(1) of the Land Court Act 2000 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." [6] Section 268(8) and (9) of the Mineral Resources Act 1989 provides: "268 Hearing of application for grant of mining lease … (8) The Land Court on the application of an objector or owner may award costs against an applicant for a mining lease who abandons the application or does not pursue the application at a hearing. (9) 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] The learned Member rejected a submission by the appellant that ss.268(8) and (9) of the Mineral Resources Act were contrary to and a limitation on the operation of s.34(1) of the Land Court Act and, consequently, that it was only in the limited circumstances provided for in s.268(8) and (9) that costs with respect to a mining lease application could be awarded. The learned Member held that s.268(8) and (9) provided particular examples of circumstances where costs may be awarded and that those provisions could be read consistently with the general power created by s.34 for the Land Court to award costs in a proceeding. As s.268(8) and (9) were not applicable, the learned Member proceeded to decide the application for costs under s.34(1) of the Land Court Act. [8] The learned Member held that the discretion given to the Court by s.34(1) was complete and ought not to be exercised by reference to any guiding rule other than that the discretion be exercised judicially. Thus the Court rejected a submission by the first respondent that, because the first respondent had been "entirely successful" in respect of 2 Wallace v Anson Holdings Pty Ltd [2009] QLC 0063. 3 Wallace v Anson Holdings Pty Ltd [2009] QLC 0107. -- 3 of 13 -- 4 the application for a mining lease, he had a strong prima facie case for costs having regard to the general principle that costs follow the event. As the learned Member pointed out, there is no reference to that principle in the Land Court Act or the Mineral Resources Act. The learned Member went on to say that while the success of the applicant in gaining a recommendation for the grant of a mining lease was not an irrelevant consideration, it was not conclusive in circumstances where the landholder had exercised a statutory right to object and where the grant of a mining lease could lead to an unwelcome intrusion onto the landowner's property. [9] However, the learned Member observed, such an objection must be progressed reasonably. In this case, the learned Member said, the objector had founded the bulk of his grounds of objection on matters of a formal nature in respect of which no prejudice to the landowner was demonstrated. Each of those objections was dismissed although in relation to two of the matters, the learned Member recorded substantial compliance under s.392 of the Mineral Resources Act and deemed the requirements to be satisfied. The learned Member noted also that he had recommended a 21 year term for the lease instead of the 50 year term sought by the first respondent. [10] The learned Member decided that because a landholder has a statutory right to object to an application for a mining lease, he or she ought not to be the recipient of a contrary costs order in circumstances where that right had been exercised reasonably and responsibly. In this case the objector's conduct in focussing extensively on matters of a formal nature, while not claiming any resultant prejudice, was something that must go against the objector in a costs application. Although the Court was exercising an administrative discretion in considering the objections against the application for a mining lease, that did not lead to a conclusion that an objection may be made replete with all manner of trivial complaint. The learned Member concluded that the appellant must pay some of the costs of the first respondent relating to the costs associated with the need to meet a case involving such formal non-prejudicial matters, rather than simply addressing the substantive aspect of the application for a mining lease and, accordingly, ordered that the appellant should pay 40% of the first respondent's costs. Grounds of appeal [11] The grounds of appeal were – "1. The learned Member erred in categorising the appellant's grounds of objection as "replete with all manner of trivial complaint" and in implying that the right to object had not been exercised "reasonably and responsibly". 2. The learned Member erred in his view that it is unreasonable to object against a lease applicant's non- compliance with statutory compliance unless an objector has suffered resultant prejudice. -- 4 of 13 -- 5 3. The learned Member erred in awarding the lease applicant the proportion of his costs deemed to have been incurred in respect of "the need to meet a case involving such formal non-prejudicial matters." 4. The learned Member erred in his finding that in respect of costs "the discretion bestowed on the Court by s.34(1) is complete and ought not to be exercised by reference to any guiding rule or principle other than that the discretion be exercised judicially." Ground 4 [12] It is convenient to deal initially with the appellant's fourth ground of appeal. The appellant's agent, Mr Houen, submitted that the learned Member was in error in concluding that the Land Court had an unfettered discretion as to the award of costs for the hearing of the lease application and objections, so long as the discretion was exercised judicially. It was submitted that, to be consistent with the legislation and Parliament's intention, the Court's approach in respect of mining lease applications should be, apart from particular matters in s.268(8) and (9) and special circumstances which are within the Court's discretion under s.34(1) of the Land Court Act, that the parties should bear their own costs. The same principle should apply to environmental authority hearings heard simultaneously with the mining lease application. [13] Mr Houen referred to the history of the costs provisions in the Mineral Resources Act and the Land and Resources Tribunal Act 1999. Until 2000, s.368 of the Mineral Resources Act provided that costs in respect of any matter brought before the Wardens Court were in the discretion of the Warden. That provision was repealed by the Land and Resources Tribunal Act. Section 50 of that Act provides that parties to proceedings before the Land and Resources Tribunal must bear their own costs unless there are special circumstances. The appellant submitted that that principle recognised that an objection is the only way in which an owner of land who stands to be dispossessed of some of that land can obtain an independent ruling on the merits of the matter. [14] We interpose here that in 2007 most of the jurisdiction of the Land and Resources Tribunal was transferred to the Land Court, including the jurisdiction to deal with applications for mining leases under the Mineral Resources Act.4 As a result the application for a mining lease in this matter was referred to the Land Court in 2008 and the application and objections were heard by the Land Court. [15] Against that legislative background, the appellant submitted that because of the fundamental significance of the issue, it was a reasonable assumption that if Parliament in 2007 had intended to revert to the old rule that costs were in the discretion of the Court in lease application hearings, it would have specifically provided for that change. Therefore, it was submitted, Parliament having made the significant step that "parties 4 Land Court and other Legislation Amendment Act 2007. -- 5 of 13 -- 6 bear their own costs" for such hearings in 1999, intended to keep it that way in 2007. There was nothing in the passage of the Land Court and other Legislation Amendment Act 2007 or in the Minister's speeches or the Explanatory Memorandum which stated or suggested any intention to alter the costs treatment of lease application hearings. [16] As the substantive proceedings in this matter were commenced in the Land Court, we do not accept the appellant's submission that Parliament's intention as reflected in the enactment of the Land and Resources Tribunal Act 1999 is applicable to these proceedings. The costs provisions in that Act deal with proceedings commenced before the Land and Resources Tribunal.5 The Land Court Act applies to proceedings commenced in the Land Court and, accordingly, the costs provisions found in s.34 of that Act are applicable unless there is a provision in another Act to the contrary.6 [17] Mr Houen submitted at the hearing of this appeal that s.268(8) and (9) of the Mineral Resources Act were the only applicable costs provisions, that is, that the effect of those provisions is that the operation of s.34 is excluded. [18] We do not accept that s.268(8) and (9) of the Mineral Resources Act cover the field in relation to the Land Court's powers to award costs in respect of the hearing of mining lease applications and objections lodged under the Mineral Resources Act. We agree with the learned Member that s.268(8) and (9) are not inconsistent with the power created by s.34 of the Land Court Act for the Court to order costs for a proceeding in the Court as it considered appropriate. Because the circumstances referred to in s.269(8) and (9) do not apply in this matter, s.34 remains the operative provision in respect of the power to award costs. [19] Mr Houen also submitted that the learned Member had failed to distinguish the environmental authority hearings in respect of which there are no provisions as to costs. [20] Although this issue was not raised as a ground of appeal and the appellant did not seek leave to amend the grounds of appeal, there was no objection by the first respondent to the submission. The submission is relevant to our discussion at this point as it considers the relevant legal principles to be applied in determining costs of a Land Court hearing of a mining lease application and objections including environmental objections. [21] As there is no provision in the Environmental Protection Act dealing with the award of costs in relation to the hearing of objections to an environmental authority application and a draft environmental authority, the appellant has concluded that no costs may be awarded. We do not consider that conclusion to be correct. Section 34 of the Land Court Act applies to all proceedings in the Land Court, subject to the provisions of any 5 Section 50, Land and Resources Tribunal Act 1999. 6 Section 34(1), Land Court Act 2000. -- 6 of 13 -- 7 other Act. There is no contrary statutory provision and, accordingly, s.34 applies to the hearing related to the environmental objections. [22] Previous decisions of this Court in relation to s.34(1) of the Land Court Act indicate that the discretion given to the Land Court under s.34 is complete and that that discretion is not to be fettered by any preconceived rules or principles other than that the discretion is to be exercised judicially. Thus in BHP Queensland Coal Investments Pty Ltd v Cherwell Creek Coal Pty Ltd (No. 2)7 the Land Appeal Court said - "[6] In Wyatt v Albert Shire Council, the Full Court considered s.31(1) of the City of Brisbane Town Planning Act 1964 which relevantly provided that the Local Government Court may make such order as it thinks fit as to the costs of any proceeding before it. The similarity between s.31(1) and s.34(1) has been recognized by this Court in the past. The Full Court held in Wyatt that the effect of s.31 was that the discretion conferred with respect to costs is complete or full. The discretion is not to be exercised arbitrarily, but judicially, that is, for reasons that can be considered or justified. Resort may be had to any settled practice of a court but a purported exercise of discretion which fails because the mind is closed to relevant considerations through a rigid adherence to preconceptions is an error of law. Thus an approach that required exceptional circumstances to be established before such a wide discretion is exercised is likely to be incorrect. Similarly it would not be right to start with the preconception that costs follow the event. The Court also said that it would be wrong to attempt to lay down rules governing the exercise of the discretion and each case should be governed by its circumstances." (Footnotes omitted). [23] Since s.34(1) of the Land Court Act gives the Court a complete and unqualified discretion in respect of an order for costs, an appeal against the exercise of that discretion is to be determined in accordance with the principles set out in House v R8 - "… It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance." Accordingly, this appeal will succeed only if it appears that there was some error by the learned Member in exercising his discretion or that in some other way there has been a failure to properly exercise the discretion. Grounds 1 – 3 [24] The appellant's remaining grounds of appeal may be summarised as follows – the learned Member erred in categorising the appellant's grounds of objection as replete with all manner of trivial complaint and in his conclusion that the right to object had not been exercised reasonably and responsibly. The learned Member also erred in concluding that 7 [2009] QLAC 0008. 8 (1936) 55 CLR 499 at 504, 505. -- 7 of 13 -- 8 it was unreasonable to object on the grounds of statutory non compliance in circumstances where no prejudice to the objector can be shown. Although it was not necessary to prove prejudice, the appellant had in fact suffered prejudice as a result of the first respondent's failure to comply with the statutory requirements. Accordingly, the learned Member had erred in awarding the first respondent 40% of the costs of the hearing and determination of the application for a mining lease and objections and of the preceding directions hearings. [25] At the outset, we note that this appeal is concerned with the learned Member's decision as to the award of costs and does not deal with the issues determined by the learned Member in relation to the lease application, which were not the subject of an appeal. A number of the appellant's submissions appeared to us to stray into the area of re-agitating the issues determined in the mining lease application proceedings. We have considered those submissions only to the extent that they are relevant to a consideration of whether or not there was any error by the learned Member in the exercise of his discretion as to costs. [26] The grounds of objection based on non-compliance with the Mineral Resources Act identified by the learned Member in the substantive decision9 were -  That the application was not properly signed because the signature was on the wrong part of the form. The learned Member held that this argument was trivial.  That the mining lease application did not carry any stamp or certificate of receipt and lodgement with the mining registrar. The learned Member held that there was no provision in the Mineral Resources Act requiring such a stamp or certification.  That the application incorrectly stated that the application was within an existing exploration permit not held by the applicant. The learned Member held that assertion to be inaccurate.  That the applicant had not obtained the consent of an existing authority holder to the lease application as required by s.248 of the Mineral Resources Act. The learned Member decided that there was no existing authority holder as at the date the application was lodged.  That the application did not contain the necessary information required by s.245 of the Mineral Resources Act relating to the proposed mining program etc. The learned Member held that the requirements of s.245(1) of the Mineral Resources Act had been met. 9 Wallace v Anson Holdings Pty Ltd [2009] QLC 0063. -- 8 of 13 -- 9  That the documents given to the objector by the applicant with the certificate of public notice did not include copies of four plans. The learned Member found that by the date of preparation of the objection the landowner was in possession of the relevant four plans, and in accordance with s.392 of the Mineral Resources Act, there had been substantial compliance in respect of this matter. Further, the applicant's submission that the application did not provide the objector with the information needed to understand the justification for the grant of the mining lease and to understand the effect of the proposed mining on the land was not supported and properly made out by any particulars. There was no demonstrated prejudice to the landowner.  That no copy of the certificate of application was included in the documents served on the landowner as required by s.252(4) of the Mineral Resources Act. The learned Member held that because the certificate of public notice had been served on the landower which certificate included all the information contained in the certificate of application, and because there was no evidence of any prejudice suffered by the landowner, there had been substantial compliance with s.252(4).  That there was excessive and unjustified delay in the processing of the mining lease application which lead to a serious blot on the landowner's title to the land. The learned Member found that the applicant had not gained a benefit from the delay. Nor was there any support for the objector's submission that the mining registrar had failed to observe due process. Further the Land Court did not have supervisory jurisdiction over the mining registrar.  That the issue of the certificate of public notice was in breach of s.252A(2) of the Mineral Resources Act in that it was not issued within 5 business days of receipt of the draft environmental authority. The learned Member held that s.252A(2) did not require the mining registrar to issue the certificate of public notice within 5 business days as submitted. [27] The grounds of objection to the environmental authority application and to the draft environmental authority were identified by the learned Member as follows -  That the objector had not received the required documents relating to the application for the environmental authority. It was held that the relevant documents were served on the landowner.  That the draft environmental authority was not served on the landowner. It was held that there was no provision in the Environmental Protection Act or the Mineral Resources Act requiring service of that document on the landowner. -- 9 of 13 -- 10  That the application for and the issue of the draft environmental authority were premature. The learned Member rejected this submission.  That the application for the environmental authority contained insufficient detail. The learned Member held that there was no requirement in the legislation for the applicant to provide to the Environmental Protection Authority the level of detail listed in the objection. [28] We note that the learned Member said, in his reasons for judgment in the substantive matter, that many of the grounds of objection with respect to the mining lease application were formal in nature.10 No appeal was made against that decision. To the extent that Ground 1 of the Notice of Appeal in this matter objects to that categorisation, it is not open to challenge in this appeal. [29] In any event having considered the grounds of objection and the Member's conclusions in relation thereto, as set out briefly above, we are not persuaded that there was any error in the learned Member's description, in the costs decision, of the bulk of the grounds of objection as matters of a formal nature in respect of which no prejudice to the objector was demonstrated.11 Accordingly, we consider that it was open to the learned Member to conclude that many of the grounds of objection were trivial. Similarly, we are not satisfied that there was any error by the learned Member when, in the course of exercising his discretion as to costs, he took into account whether the appellant's conduct in pursuing these objections was reasonable and responsible.12 [30] Most of the appellant's submissions in relation to Ground 2 of the Notice of Appeal amount to challenges to the learned Member's decision in the substantive matter on various aspects of the appellant's objections. As explained above, we do not consider those issues to be properly raised in this appeal and we have not considered them. [31] The appellant also submitted that the learned Member's insistence that it was not reasonable or responsible for an objector to object against failures to comply with formal lease application requirements unless they result in prejudice had no foundation in the Mineral Resources Act. [32] In so far as that submission refers to the learned Member's costs decision, it misconceives the nature of the exercise in which the learned Member was engaged. In the course of his reasons for that decision, the learned Member was setting out the factors which he had taken into account in exercising his discretion under s.34(1) of the Land Court Act. The Member was not seeking to establish a set of rules or guidelines governing the exercise 10 Wallace v Anson Holdings Pty Ltd [2009] QLC 0063 at [5]. 11 Wallace v Anson Holdings Pty Ltd [2009] QLC 017 at [11] and [13]. 12 At [13]. -- 10 of 13 -- 11 of the statutory right to object. We do not consider that the learned Member erred in determining that the lack of prejudice suffered by the appellant in relation to a number of the formal defects was relevant to the exercise of his discretion under s.34(1). [33] In Ground 3, the appellant submitted that, in any event, the grounds of objections did involve prejudicial matters which were identified as - 1. A lease application was allowed to sit for a period of years causing a blot on the appellant's title to the land. 2. The appellant was forced to respond within a fixed time to an application which, it subsequently emerged, had failed to disclose important details such as the minerals to be mined, method of mining and the justification for the term of the lease. For example, the analysis showing the presence of silica was not available until the day before the hearing while the statement describing the mining operation as including open-cut blasting and crushing to produce crushed rock was belatedly disclosed some 20 weeks after the appellant's objection had been filed. 3. At the hearing, parts of the appellant's affidavit evidence were struck out and the evidence directed to showing that the proposed product of the mine was not a mineral was barred because the issue had not been raised in the objection. [34] To the extent that those three issues were dealt with by the learned Member in the substantive decision, they are not properly raised in this appeal. However, it appears that the appellant was also submitting that the learned Member had failed to take into account, in the costs decision, that some of the defects in the mining lease application procedure had caused prejudice to the appellant. [35] The learned Member ordered the appellant to pay 40% of the first respondent's costs of the proceedings before the Land Court. It is clear from paragraph 13 of that decision13 that the learned Member did not say that the appellant had suffered no prejudice. Rather, the learned Member said that the appellant had focussed extensively on matters of a formal nature and that the first respondent ought to have the costs associated with the need to meet a case involving such formal non-prejudicial matters. The award of 40% rather than a higher figure or even 100% of the first respondent's costs indicates to us that a number of factors favouring the appellant were taken into account by the learned Member. General conclusions [36] The submissions on the appeal amounted to the proposition that the appellant had a statutory right to object to the application for a mining lease and that, in the course of 13 Wallace v Anson Holdings Pty Ltd [2009] QLC 0107. -- 11 of 13 -- 12 exercising that right, the appellant was entitled to take any point that indicated that the application was defective without incurring liability as to costs. [37] We accept that the appellant had a statutory right to object to the mining lease on the basis that the relevant statutory provisions had not been complied with. However that does not mean that someone in the position of the appellant is automatically exempt from any liability for the payment of costs. As discussed above, s.34 of the Land Court Act gives the Court complete and full discretion as to whether to award costs. In exercising that discretion it is relevant, as the learned Member did, to take into account the fact that the grant of a mining lease can lead to an unwelcome intrusion on to the objector's property. But that is only one factor to be taken into account in the exercise of the discretion. Without attempting to be exhaustive or prescriptive, other factors that may be taken into account are the conduct of the objector in pursuing the objections including a consideration of the nature of the objections, whether there was any reasonable prospect of success in pursuing those objections, the degree of prejudice likely to be suffered by the appellant if the right to object was not pursued, whether the appellant's conduct lead to an unnecessarily lengthy hearing and whether in general the objector has conducted the progress of the objections in a reasonable manner.14 [38] That is not to suggest that the conduct of the other parties to a proceeding is free from scrutiny. When exercising its discretion under s.34(1), the Court will take into account the conduct of all the parties to the proceeding and any other relevant factor in deciding whether to make an order for costs. [39] We can find no error in the matters which the learned Member took into account in exercising his discretion under s.34(1) of the Land Court Act. Accordingly, we consider that the appeal should be dismissed. [40] Unless there are submissions to the contrary, the appellant must pay the first respondent's costs to be assessed on the standard basis. ORDERS 1. The appeal is dismissed. 2. The appellant is to pay the first respondent's costs of and incidental to the appeal unless the appellant contends that some other orders ought to be made in which case: (i) the appellant is to file and serve any submissions within 14 days; (ii) the first respondent is to file and serve any response submissions within 14 days of receipt of the appellant's submissions; 14 See also Solomon Services Pty Ltd v The Council of the Shire of Woongarra [1988] 2 QdR 202 at 207. -- 12 of 13 -- 13 (iii) the appellant is to file and serve any reply within 7 days of receipt of the first respondent's submissions; (iv) the Court will decide the question of costs on the written submissions of the parties without the need for oral argument. CULLINANE J CAC MacDONALD PRESIDENT OF THE LAND COURT PA SMITH MEMBER OF THE LAND COURT -- 13 of 13 --