Barry v Barrett [2002] QLRT 20

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: In re Jason Andrew Barry and Rodney Keith Barrett [2002] QLRT 20 PARTIES: In the matter of an Application for Mining Lease No. 70235 by Jason Andrew Barry Jason Andrew Barry Applicant –and – Rodney Keith Barrett Objector FILE NO: ALML00011/2001 PROCEEDING: Application by objector for costs DELIVERED ON: 16 May 2002 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers PRESIDING MEMBER: Smith DP ORDER/S: 1. The Applicant pay the reasonable costs of the Objector of and incidental to this application, such costs to be agreed between the Applicant and the Objector and, failing agreement, to be the reasonable costs as taxed by the Registrar of the Land and Resources Tribunal (at [13]) CATCHWORDS: ABANDONED APPLICATION – COSTS – STATUTORY INTERPRETATION – STATUTORY SPECIAL CIRCUMSTANCE – COSTS OF AGENT Mineral Resources Act 1989, s. 268(8) Land and Resources Tribunal Act 1999, s. 50 Re Jason Andrew Barry and Rodney Keith Barrett [2001] QLRT 54, considered Mitchell v Scales (1907) 5 CLR 405, considered Goodwin v Phillips (1908) 7 CLR 1, considered Rose v Hvric (1963) 108 CLR 353, considered Northern Safecorp Consultants Pty Ltd and Geraldo Bellino v. Stanthorpe Shire Council and Denis -- 1 of 5 -- Parsons and Jacqueline Madeline Parsons [2001] QLRT 20, considered COUNSEL: N/A SOLICITOR/S: N/A AGENT/S: Mr N.M. Dale, agent for the Applicant Mr G.T. Houen, agent for the Objector [1] SMITH DP: The facts of this matter can be briefly set out. The Applicant made an application in the Emerald Mining District for Mining Lease 70235. The Objector lodged an objection, which proceeded to hearing. Concurrently, the Applicant was also seeking another mining lease in the Emerald District, also on the Objector’s property.1 The 2 matters were for most aspects heard concurrently. The other matter resulted in a recommendation being made to the Honourable the Minister for Natural Resources and Minister for Mines.2 Application 70235 was subsequently abandoned prior to a recommendation being made. The Objector has applied for costs under s. 268(8) of the Mineral Resources Act 1989 (hereafter “the MRA”). [2] The Application for costs was made by the Objector at a Directions Hearing on 12 February 2002. Subsequently, the parties have provided the Tribunal with written submissions both as to the issue as to whether an order requiring payment of costs should be made, and the quantum of those costs. [3] Section 268 (8) of the MRA is in the following terms: “s.268(8) The tribunal 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. [4] Mr Houen for the Objector relies on the plain words of the section for this application. Mr Dale for the Applicant counters by arguing that despite s. 268, the Tribunal can only award costs in special circumstances due to the operation of s. 50 of the Land and Resources Tribunal Act 1999 (hereafter “the LRT Act”). He 1 Application for Mining Lease 70234. 2 See re Jason Andrew Barry and Rodney Keith Barrett [2001] QLRT 54. -- 2 of 5 -- contends that special circumstances do not exist in this matter. Section 50 of the LRT Act states as follows: “s.50(1) Each party to a proceeding before the tribunal must bear the party’s own costs for the proceeding. (2) However, the tribunal may award costs in a proceeding if the tribunal considers, in the special circumstances of the proceeding, an award of costs is appropriate. (3) If costs are awarded by the tribunal under subsection (2), the amount of the costs is to be the amount the tribunal considers reasonable.” [5] There are settled rules of statutory interpretation as to which provision should apply. Firstly, s. 50 of the LRT Act commenced on 21 April 2000. Section 268(8) of the MRA, though a prior provision, was subsequently amended, the amendment taking effect on 18 September 2000. The amendments to the MRA at that time are relevant, as, inter alia, they dealt specifically with jurisdiction of the Tribunal and costs. In particular the general provision as to costs in the MRA was removed.3 However, and importantly, the substance of s. 268(8) of the MRA was retained. Clearly, the costs provisions of the LRT Act were not intended to stand in the place of the MRA costs provisions now in operation.4 [6] Where there are 2 inconsistent statutes, the later act prevails.5 However, in my view, there is no inconsistency between the two provisions under consideration here. Effect can be given to both Acts at the same time.6 In short, s. 268(8) of the MRA can be read, on its own terms, as a statutory special circumstance under s. 50 of the LRT Act. [7] Having found that s. 268(8) applies, it is now appropriate to turn to the issue of the exercise of discretion as to whether or not costs should be awarded. [8] Mr Dale for the Applicant has not been able to provide me with any reason that I find compelling as to why costs should not be awarded. On the contrary, in his submissions he has actually set out circumstances which give good reason why costs should be awarded in this matter. He submitted as follows: “The application was abandoned for two reasons; firstly due to the time and costs expended by the applicant over the last 18 months in trying to get the mining lease granted and secondly due to the exceedingly higher than expected recent compensation rulings determined by the Land and Resources Tribunal for mining leases on Mt Clifford and adjoining properties. Compensation 3 See the now repealed s. 368 MRA in operation prior to 18 September 2000. 4 See Mitchell v Scales (1907) 5 CLR 405 for the test as to whether one act was intended to stand in the place of another. 5 See Goodwin v Phillips (1908) 7 CLR 1 per Griffith CJ @ 7. 6 See Rose v Hvric (1963) 108 CLR 353 @ 360. -- 3 of 5 -- determinations have only recently started to be handed down by the Land and Resources Tribunal on the Gemfields and are markedly higher than existing non-determined compensation agreements. As soon as it was apparent that the level of compensation that would be determined by the Land and Resources Tribunal would exceed the amount that the applicant was prepared to pay, the application was abandoned.” [9] Mr Dale did not submit that the compensation decisions of the Tribunal are higher than those made before the Tribunal commenced operation. Nor could he. The same law as to compensation has been applied by the Tribunal as that applied in the past by the Wardens Court and by the Land Court on appeal from the Wardens Court. In making his application for a mining lease, the Applicant must have known that, if he was unable to reach an agreement as to compensation with the landowner, the question of compensation would be determined according to law. [10] The Objector has been put to unnecessary time and expense by an applicant for a mining lease who has abandoned his application, presumably because he was not able to reach an agreement with the landowner as to compensation, and he was not prepared to pay compensation in accordance with the landowners’ lawful entitlement by way of determination. In my view, the Applicant should pay the reasonable costs of the Objector. [11] I now turn to the question of the quantum of such costs. Due to the protracted nature of this proceeding, I had hoped to save the parties additional time and expense by fixing an amount of costs to be paid in the event that an award of costs was made. Mr Houen provided the Tribunal with an assessment of his client’s costs. Unfortunately, all the costs claimed relate only to Mr Houen’s expenses. [12] In a previous decision of the Tribunal, an award of costs to an objector was made, “excluding any fee or other remuneration in relation to the lay representative”.7 In the circumstances of this matter, I have had no substantive argument from either party as to whether Mr Houen’s fees are properly recoverable. Accordingly, it is not appropriate for me to determine the quantum of costs. That should be left to taxation. It will also be an issue for either agreement between the parties or for taxation as to the apportionment of costs for that part of the proceeding which was heard conjointly with Tribunal matter No. LXX40016/2000. 7 Northern Safecorp Consultants Pty Ltd and Geraldo Bellino v. Stanthorpe Shire Council and Denis Parsons and Jacqueline Madeline Parsons [2001] QLRT 20. -- 4 of 5 -- [13] In the circumstances, I make the following order: The Applicant pay the reasonable costs of the Objector of and incidental to this application, such costs to be agreed between the Applicant and the Objector and, failing agreement, to be the reasonable costs as taxed by the Registrar of the Land and Resources Tribunal. -- 5 of 5 --