Chrismel Pty Ltd v Department of Natural Resources and Mines [2005] QLC 12 (2005) 26 QLCR 32

LAND COURT OF QUEENSLAND CITATION: Chrismel Pty Ltd v Department of Natural Resources and Mines [2005] QLC 12 PARTIES: Chrismel Pty Ltd (applicant/appellant) v. Chief Executive, Department of Natural Resources and Mines (respondent) FILE NO: A2004/0128 DIVISION: Land Court of Queensland PROCEEDING: An application for costs of and incidental to the hearing of a preliminary point associated with an appeal under the Water Act 2000 DELIVERED ON: 28 February 2005 DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER: Mr RS Jones ORDER: The application for costs is dismissed. CATCHWORDS: Water Act 2000 - Application for water licence - Question of costs pursuant to s.882(4) of the Water Act 2000 APPEARANCES: Mr J Haydon for the applicant/appellant Mr M Plunkett for the respondent SOLICITORS: Mullins, Lawyers for the applicant/appellant Crown Solicitor, Crown Law, for the respondent. Background [1] The applicant/appellant, Chrismel Pty Ltd ("Chrismel"), is the registered proprietor of land described as Lot 4 on S31107. On or about 21 August 2003 Chrismel made an application to the respondent pursuant to s.206 of the Water Act 2000 for a water licence to irrigate a part of its land. Associated with this application was a further application by Chrismel, made on or about 12 January 2004 for a development permit for a submersible -- 1 of 6 -- 2 pump to be located on the Brisbane River adjacent to its land. Apparently the pump was proposed to be used in the event that the application for the water licence was successful. [2] On or about 10 June 2004 Chrismel received an Information Notice from the respondent rejecting the application for the water licence. [3] On or about 22 July 2004 Chrismel lodged an application for an internal review of the original decision to refuse the application. This review application followed an earlier review application dated 20 July 2004 which apparently was not in the approved form. [4] A review of the original decision to refuse the application was carried out by one Amos Saraber, a technical officer employed by the respondent. [5] On or about 26 August 2004 a Review Notice was received by Chrismel which confirmed the original decision. Dissatisfied with the review decision, Chrismel appealed to this Court pursuant to s.877(1)(b) of the Water Act 2000. The Appeal [6] By way of an originating application filed on 23 September 2004, Chrismel appealed the decision not to grant the licence, in essence, contending that the respondent had failed to properly address the criteria required to be taken into account pursuant to s.210 of the Water Act. [7] By reference to the Review Notice dated 26 August 2004, a copy of which was attached to the originating application filed on behalf of Chrismel, it is clear that the reviewer of the original decision to refuse the licence, Mr Saraber, placed significant reliance on the then Water Resource Legislation Amendment Regulation (No 1) 2000. [8] At the Callover of this matter on 16 December 2004 certain orders were made. Relevantly those orders provided for the determination of a "preliminary point", disclosure and the filing of written submissions to be relied on by each of the parties in respect of the preliminary point. [9] In accordance with the orders, the respondent filed its submissions on 21 January 2005. The submissions on behalf of Chrismel were filed on 4 February 2005. Debate about whether or not there had been proper disclosure by the respondent continued up until the date of the hearing of the preliminary point on 23 February 2005. [10] Of significance is the fact that the submissions filed on behalf of the respondent on 21 January 2005 vigorously sought to defend the decision to refuse the water licence application. At page 3 of the respondent's submissions it was asserted: "The decision to refuse the application was made by giving appropriate weight to the criterion 'existing entitlements and authorities to take or interfere with water' specified in S210(1)(b) of the Water Act 2000 in that the water from the identified sources has already been allocated to the -- 2 of 6 -- 3 company." The reference to the "company" is not a reference to Chrismel, but in fact a reference to the South East Queensland Water Corporation. [11] On the morning of the hearing of the preliminary point this Court received by way of "e- mail" further written submissions on behalf of the respondent. These submissions were prepared by Mr Plunkett of counsel. It seems very clear that Mr Plunkett had no part in the formulation of the original submissions filed on behalf of the respondent. [12] In what could only be described as being extremely candid submissions, Mr Plunkett made a number of significant concessions. Some of the more important of these are as follows:  That the respondent did not exercise, or otherwise commence to exercise, the requirements imposed on him by the legislature under s.210 of the Water Act 2000, because he impermissibly constrained himself from so doing by reason of a policy dictate.  From the outset, the appellant rightly contended that its application should have been assessed against the criteria outlined in s.210 of the Water Act 2000. That had not been done.  That the reviewer made an error of law by relying on the 2000 Regulation which had been repealed. Further, that any conclusion reached by the reviewer under the 2000 Regulation was not open under the subsequent 2002 Regulation.  There had been a failure to decide the appellant's application at all in that there had been a failure to address the tasks required by s.210 and s.211 of the Water Act 2000.  It was plain that the substantial merits of the application had never been explored. [13] These submissions concluded by stating: "In the light of the concessions made, it is appropriate that the appeal be allowed and the application be sent back with a direction that the decision be made 'against the criteria outlined in s.210 of the Act', as originally requested by the appellant." [14] Accompanying the respondent's submission was a draft order ordering that the appeal be allowed. The draft order also provided for the original application for a water licence to be referred back to the respondent for decision and that the decision thereafter made be communicated to Chrismel within 30 days. [15] As I understand it, the further submissions and the draft order provided to the Court on 23 February 2005 were made available to Mr Haydon, counsel for Chrismel, on the evening of 22 February 2005. [16] Mr Haydon also handed up a draft order which provided that the appeal be allowed. There were some relatively minor differences between the two draft orders concerning -- 3 of 6 -- 4 some procedural and timing matters and these were able to be resolved with little controversy. The Cost Issue [17] Not surprisingly, an application was made on behalf of Chrismel that the respondent pay its costs from and including the filing of the originating application up to and including 23 February 2005, such costs to be decided by the appropriate assessing officer of the Supreme Court under the scale of costs prescribed by law for proceedings in the Supreme Court. The application for costs was opposed by the respondent. [18] Section 34 of the Land Court Act 2000 relevantly provides: " (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. … (5) The court may, if it considers it appropriate, order the costs to be decided by the appropriate assessing officer of the Supreme Court, under the scale of costs prescribed by law for proceedings in the Supreme Court." (emphasis added) [19] Counsel for both sides agreed that in this matter when determining the question of costs the Court had to have regard to s.882 of the Water Act. [20] Subsection (3) of s.882 provides that "Each party to the appeal must bear the party's own costs for the appeal". However, subsection.(4) gives a limited discretion to the Court to award costs in certain circumstances. Counsel for the respondent contended that none of the criteria identified in subsection (4) of s.882 were satisfied and, accordingly, this Court had no power to award costs. Mr Haydon, on the other hand, relied on subparagraphs (e) and (g) of s.882(4) to say that, in the circumstances of this case the discretion to award costs should be exercised. These subparagraphs provide: "(e) a party has incurred costs because another party has defaulted in the court's procedural requirements; … (g) a party to the appeal does not properly discharge its responsibilities in the appeal." [21] Counsel for both parties made considerable attempts to find authority dealing with how the words "... does not properly discharge its responsibilities in the appeal." are to be interpreted. Their initial investigations were unfruitful. Counsel for the respondent contended that there was no conduct on the part of his client which could be fairly or properly described as being a failure to properly discharge its responsibilities in the appeal. On the other hand, counsel for Chrismel contended that when the ordinary meaning is given to those words, there is no prohibition against making a cost order in circumstances such as arise here. -- 4 of 6 -- 5 [22] Having regard to the concessions made on behalf of the respondent, there can be little doubt that the original application for a water licence has been improperly dealt with almost from the moment it was lodged for consideration. However, this is not really to the point as s.882(4) limits any order as to costs to the costs of appeal. [23] To my mind, the attitude of the respondent as reflected in its earlier submissions supporting the original decision-making process were seriously flawed. It is not hard to imagine that had the respondent's original submissions been in accordance with those finally relied on, Chrismel would have been able to avoid considerable legal costs. Not surprisingly in these circumstances, I have a considerable amount of sympathy for the situation Chrismel finds itself in. [24] However, the authorities to which I refer below, while not binding on me, lead me reluctantly to the conclusion that it is not appropriate to make any orders as to costs. [25] In Shaw v Brisbane City Council and Anor [2000] QPELR 57 His Honour Judge Quirk DCJ was required to consider subparagraph (i) of s.4.1.23(2) of the Integrated Planning Act which is materially the same as subparagraph (g) of s.882(4)(g) of the Water Act. In Shaw His Honour made the following comments: "As to subparagraph (i), the argument appears to be that 'responsibilities in the proceedings' includes an obligation to recognise any weakness in one's case and to respond accordingly to that recognition by not pursuing the matter further if that is warranted. Such a proposition would in my view involve too wide an interpretation of the concept of 'responsibilities' as it is used in the subparagraph. The proposition may reflect the position of a party in ordinary litigation but here, the concept must be understood in the context of this legislation. I would interpret the provision to refer to responsibilities that are imposed on the parties named to do what the Act specifically requires of them when they become involved (in those capacities) in proceedings which the Act governs. Such an interpretation would not extend to cover the proposition put forward here." 1 [26] In Browning and Sargeant v Cairns City Council and Bernstrom [2002] QPELR 577 His Honour Judge White DCJ said in respect of the same subparagraph of s.4.1.23(2): "In my view, responsibilities in the proceedings is confined to procedural requirements arising out of the Integrated Planning Act and the rules thereof, and itself obeying any court orders made as part of a proceeding. With some regret therefore I am compelled to the view that the discretion to make an order for costs in favour of the applicants does not arise in this case." 1 See also Oakden Investments Pty Ltd v Pine Rivers Shire Council [2002] QPEC 075, per Quirk DCJ. -- 5 of 6 -- 6 [27] To my mind, the wording of subparagraph (i) of the Integrated Planning Act and subparagraph (g) of the Water Act 2000 does not allow for any meaningful distinction in interpretation. [28] Whilst I am not entirely convinced that such a narrow construction ought to be given to subparagraph (g) of the Water Act 2000, in the absence of authority supporting a contrary view I am not prepared to reach a different conclusion. The construction of the words in question found by Quirk DCJ and White DCJ is also open. [29] In Evans v Townsville City Council [2000] QPELR 337 Judge Wall QC DCJ was prepared to find that a default in procedural requirements, in the circumstances of that case, meant that there had also been a failure to properly discharge that party's responsibilities in the proceedings. [30] As mentioned above, counsel for Chrismel also relied on subparagraph (e) of s.882(4) of the Water Act 2000. The argument rested principally on two submissions in support of subparagraph (e). Firstly, the failure of the respondent to ensure the accuracy of its legal arguments before filing its original submissions amounted to a default of the Court's procedural requirements. Secondly, that the respondent had failed to meet its obligations in respect of disclosure. [31] As to the first submission, I find that the failure complained of is not able to be properly categorised as a default in the Court's procedural requirements. [32] As to the second submission, accepting for the moment that the respondent had defaulted in its obligation to make full disclosure, having regard to the manner in which this appeal was disposed of, there is insufficient evidence before me to conclude that Chrismel would have incurred recoverable costs as a consequence of that default. In the context of subparagraph (e) of s.882(4) a direct link between the default and the incurring of the costs is required. I find that in this case no such link has been established to justify the orders sought. [33] For the reasons set out above, it is with some reservation that I conclude that the discretion to make an order for costs in favour of Chrismel does not arise. Order The application for costs is dismissed. RS JONES MEMBER OF THE LAND COURT -- 6 of 6 --