Doyle v Jeebropilly Collieries Pty Ltd [2001] QLRT 83

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: In Re Doyle & Ors v. Jeebropilly Collieries Pty Ltd [2001] QLRT 83 PARTIES: Isabelle Doyle, Isabelle Mary Doyle and Elizabeth Jane Doyle Applicant - and - Jeebropilly Collieries Pty Ltd Respondent FILE NO: LXX40011/2001 PROCEEDING: Application for costs DELIVERED ON: 16 November 2001 DELIVERED AT: Brisbane HEARING DATE/S: 7 September 2001 PRESIDING MEMBER: Smith DP ORDER/S: 1. I order that the Respondent pay the reasonable costs of the Applicants with respect only to the matter before the Wardens Court for the determination of compensation relating to MLA 50132, such reasonable costs to be agreed between the Applicants and the Respondent and, failing agreement, to be the reasonable costs as taxed by the Registrar of the Land and Resources Tribunal. at [27]) 2. I further order that there be no order as to costs with respect to commercial negotiations between the Applicants and the Respondent relating to the proposed sale of the Applicants’ property to the Respondent undertaken during the period June 1997 to January 1999. at [28] 3. I order that the Applicants pay the Respondent’s reasonable costs of and incidental to the application, such reasonable costs to be agreed between the Applicants and the Respondent and, failing agreement, to be the reasonable costs as taxed by the Registrar of the Land and Resources Tribunal. at [31] 4. For the purposes of s. 22 of the Appeal Costs Fund Act 1973, the proceedings as to costs -- 1 of 10 -- before the Wardens Court are discontinued. at [34] 5. I grant certificates to both the Applicants and the Respondent for costs thrown away in their respective applications for costs before the Wardens Court arising from the Applicants application dated 23 July 1999. at [35] CATCHWORDS: COSTS – SPECIAL CIRCUMSTANCES – SLIP RULE – ERROR BY SOLICITOR – COSTS THROWN AWAY – CERTIFICATES Land and Resources Tribunal Act 1999, ss. 50 and 83 Mineral Resources Act 1989, ss. 368 Appeal Costs Fund Act 1973, s. 22 Leinung v. Mann [2000] QLRT 6, applied Robert John Wallace and James Bernard Evans v. Ian Johnston and Anor [2001] QLRT 23, considered Northern Safecorp Consultants Pty Ltd and Geraldo Bellino v. Stanthorpe Shire Council and Denis Parsons and Jacqueline Madeline Parsons [2001] QLRT 20, considered Milos Bjelivuk, Sedina Bjelivuk and Ivan Uzarevic and Gemstone Exploration Pty Ltd [2001] QLRT 49, considered Re Bendall & Ors v. Allgas Energy Ltd [2001] QLRT 59, considered; applied Bailey v. Marinoff [1971] 125 CLR 529, considered L Shaddock & Associates Pty Ltd v. Parramatta City Council [No.2] [1982] 151 CLR 590, considered Gould v. Vaggelas [1983-1985] 157 CLR 271, considered Raybos Australia Pty Ltd v. Tectran Corporation Pty Ltd [No.2] [1988] 62 ALJR 151, considered COUNSEL: Mr R. Peterson for the Applicants Mr P. Ambrose SC for the Respondent SOLICITORS: Slater & Gordon for the Applicants Clayton Utz for the Respondent [1] SMITH DP: This proceeding is before me in circumstances where s. 83 of the Land and Resources Tribunal Act 1999 (hereafter “the LRT Act”) applies. That section gives the Tribunal jurisdiction in specified circumstances to finish a proceeding commenced before the Wardens Court but not finished before the commencement of s. 83. Section 83 commenced on 18 September 2000. -- 2 of 10 -- [2] On 23 July 1999, Isabelle Doyle, Isabelle Mary Doyle and Elizabeth Jane Doyle (hereafter referred to as “the Applicants” but styled “Claimants” in the Application) filed an application in the Warden’s Court, Brisbane, against Jeebropilly Collieries Pty Ltd (hereafter referred to as “the Respondent”) seeking the following order: “That pursuant to section 368 of the Mining Resources Act 1989 that the Respondent pay the costs incurred by the Claimants in relation to the Respondent’s Mining Lease Application over the surface are of Lots 77, 79, 80 and 83 of C 15596.” [3] The Mining Warden heard the application on 2 February 2000 and reserved his determination. As at 8 September 2000, the date upon which the Land and Resources Tribunal received jurisdiction in this matter, the Mining Warden had failed to deliver his determination on costs. [4] Similar circumstances were considered by the President of the Tribunal in Leinung v. Mann.1 I followed this case in Re Bendell & Ors v. Allgas Energy Ltd.2 [5] In again applying Leinung v. Mann, I accept that the appropriate legislative provision to apply regarding awarding of costs in this matter is s. 50 of the LRT Act and not the now repealed s. 368 of the Mineral Resources Act 1989 (hereafter “the MRA”). [6] Section 50 of the LRT Act is in the following terms: “Costs 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. Examples of possible special circumstances – 1. The proceeding was started merely to delay or obstruct. 2. The proceeding, or a part of the proceeding, has been frivolous or vexatious. (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.” [7] The Tribunal has considered awards of costs in a number of matters.3 Applying those cases, it is necessary, in the circumstances of this matter, to determine whether or not special circumstances exist such as to allow an award of costs to one of the parties. 1 [2000] QLRT 6. 2 Re Bendall & Ors v. Allgas Energy Ltd [2001] QLRT 59. 3 See, for example, Leinung v. Mann [200] QLRT 6; Re Robert John Wallace and James Bernard Evans v. Ian Johnston and Anor [2001] QLRT 23; Northern Safecorp Consultants Pty Ltd and Geraldo Bellino v. Stanthorpe Shire Council and Denis Parsons and Jacqueline Madeline Parsons [2001] QLRT 20; Re Milos Bjelivuk, Sedina Bjelivuk and Ivan Uzarevic and Gemstone Exploration Pty Ltd [2001] QLRT 49; and Re Bendall & Ors v. Allgas Energy Ltd [2001] QLRT 59. -- 3 of 10 -- [8] In this matter, both the Applicants and the Respondent claim that special circumstances exist to warrant an award of costs in their favour. [9] In order to determine this application, it is necessary to understand the factors behind the making of the application on 23 July 1999. A chronology was conveniently provided by Mr Ambrose SC in the following terms: “The mining lease application 50132 was made on 22 December 1996. The Doyles were not objectors to that application. The mining warden gave his report and recommendation to that application on 27 November 1997. The determination of compensation was referred to the Mining Warden’s Court on 12 March 1998. And Slater and Gordon became solicitors on the record, in respect of the determination of compensation, on 27 March 1998, when the matter was first mentioned. On 1 May 1998, there was a further mention of the determination of compensation. On 28 August 1998, the matter was set down for hearing, to commence on 9 November 1998. Correspondence then ensued between the Mining Warden’s Court and the parties. The date of 9/11/1998 was cancelled, I think, due to illness and a new date was set for a hearing to commence on 29 January 1999. So, that new date for hearing was set somewhere between August and – and November. If fits there into the chronology. On 25 January 1999, notice of excision of the Doyle’s land was made, and on 28 January 1999 Slater and Gordon advised the Court by letter that their clients were no longer affected and they had no intention to appear. This is, you’ll appreciate, on the determination of compensation matter which was due to start the next day. That’s MHF17, that letter. On 1 February 1999, the Mining Warden’s Court ordered the determination of compensation proceedings struck out.”4 [10] In support of their application, the Applicants rely on the affidavit of Marita Helen Foley sworn 23 July 1999. Exhibited to that affidavit are a large number of exhibits. I have given careful consideration to the contents of the affidavit and exhibits in reaching my decision in this matter. [11] Due to a series of factors, it is necessary to examine in detail a number of discrete issues to determine this application. [12] I turn first to the timing of the Applicants’ application for costs. Counsel for the Respondent argues that the proper time to make such an application was when the compensation matter was before the Mining Warden on 29 January and/or 1 February 1999. The Respondent asserts that the Applicants failure to apply for costs at that time was not an oversight to which the slip rule would apply, but was rather an afterthought. 4 Transcript 7 September 2001, page 10 lines 1-30. -- 4 of 10 -- [13] The Applicants say that they failed to apply for costs “in error”. Specifically, at paragraphs 29 and 30 of her affidavit of 23 July 1999, Marita Foley had this to say: “29. On 28 January 1999, Slater & Gordon wrote to the Registrar of the Mining Warden’s Court as follows: We advise that our client has received notice from the applicant for the mining lease, Jeebropilly Collieries Pty Ltd that they have excised our client’s land Lots 77, 79, 80 and 83 from the application. This notice was forwarded by our client late this afternoon, and no formal notification has been received from Jeebropilly. However, it appears that there has been a material change in circumstances and that our clients are no longer affected by the application. Accordingly it is not our intention to appear at the call over of this matter. 30. In error, that letter did not advise that it was the intention of the solicitors for the Doyles to seek the costs incurred by the Doyles as a direct result of Jeebropilly conduct in relation to the mining lease application.” [14] In light of the evidence and the submissions, it is necessary to consider in some detail the slip rule. Counsel for the Respondent referred to Rule 668 of the Uniform Civil Procedures Rules 1999. It is in the following terms: “[r 668] Matters arising after order 668 (1) This rule applies if – (a) facts arise after an order is made entitling the person against whom the order is made to be relieved from it; or (b) facts are discovered after an order is made that, if discovered in time, would have entitled the person against whom the order is made to an order or decision in the person’s favour or to a different order. (2) On application by the person mentioned in subrule (1), the court may stay enforcement of the order against the person or give other appropriate relief. (3) Without limiting subrule (2), the court may do one or more of the following – (a) direct the proceedings to be taken, and the questions or issue of fact to be tried or decided, and the inquiries to be made, as the court considers just; (b) set aside or vary the order; (c) make an order directing entry of satisfaction of the judgment to be made.” [15] It would seem that rule 388 may also be relevant. It is in the following terms: “[r 388]Mistakes in orders or certificates 388 (1) This rule applies if – (a) there is a clerical mistake in an order or certificate of the court or an error in a record of an order or a certificate of the court; and (b) the mistake or error resulted from an accidental slip or omission. (2) The court, on application by a party or on its own initiative, may at any time correct the mistake or error. (3) The other rules in this part do not apply to a correction made under this rule.” [16] Mr Ambrose SC also took me to a number of authorities on the slip rule. It is appropriate that I consider those and related cases. -- 5 of 10 -- [17] In Bailey v. Marinoff5, Barwick C.J. had this to say: “Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance in my opinion beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed.” [18] Orders under the slip rule are not available as a matter of course. An Applicant’s case is weakened when there is an unexplained delay in making an application, as is the case in this matter where the application was not filed until 23 July 1999. As Mason A.C.J., Wilson J. and Deane J. had to say in L Shaddock & Associates Pty Ltd v. Parramatta City Council [No.2]6: “Third, we would observe that an order under the slip rule is not available as a matter of course. There is a discretion in the court to refuse an order if something has intervened which would render it inexpedient or inequitable that it be made (see Tak Ming (35); and the cases there cited). In the present case, there was considerable delay in filing the notice of motion. The Court’s decision was given on 28 October 1981 and the judgment entered at the end of November 1981. The motion to amend the order is dated 22 July 1982. The general principle in support of finality in litigation together with the fact that a party against whom judgment in a money sum is entered is entitled to regard that judgment as finally determining the extent of his liability combine to stress the importance of prompt action under the slip rule. The seriousness of the delay in this case is, however, minimised by the fact that the applicants promptly made known to the Council their claim for interest and the delay in making the application to the Court is, to no small extent, explained by the content of the correspondence between the parties during the months prior to the filing of the application.” [19] The following extracts are taken from the joint judgment of Gibbs C.J., Wilson J., Brennan J. and Dawson J. in Gould v. Vaggelas7: “Recent decisions of this Court provide illustrations of the injustice that may be caused to litigants by the inadvertence of counsel and the willingness of the Court in appropriate circumstances to grant a remedy: L. Shaddock & Associates Pty Ltd. V. Parramatta City Council [No.2] (36); The Commonwealth v. McCormack (37); cf. Also Tak Ming Co. Ltd. V. Yee Sang Metal Supplies Co. (38). Nevertheless, the jurisdiction is one to be exercised sparingly, lest it encourage carelessness by a party’s legal representatives and expose to risk the public interest in finality of litigation. ……… There are a number of considerations in favour of the application. It does not come as an afterthought. The evidence is that the failure to advert to the question of interest in this Court was an accidental omission on the part of the appellants’ legal representatives ………. We see no reason to doubt that had the matter been canvassed at the time of the hearing in this Court the order now sought would have been made. Finally, there has been no undue delay on the part of the appellants in seeking rectification. What delay there has been is explained by an approach by the solicitors for the appellants to the solicitors for the respondents seeking a resolution of the matter without the necessity of recourse to this Court. In our opinion, therefore, the circumstances are such as to require the Court in the interests of justice to make an order under the slip rule awarding interest at the rate of 12 per cent per annum on the judgment debt for the period from 18 September 1981 to 6 November 1984. With respect to the question of costs, the application was made necessary by the failure on the part of the appellants to seek an order at the hearing. The appellants should be ordered to pay the respondents’ costs of the present application.” 5 [1971] 125 CLR 529 at 530. 6 [1983] 151 CLR 590 at 597 7 [1983-1985] 157 CLR 271 extracts from 274 to 276. -- 6 of 10 -- [20] Further, in Raybos Australia Pty Ltd v. Tectran Corporation Pty Ltd [No.2], Toohey J. had, relevantly, this to say8: “The respondents, who were successful on the application, were represented by counsel on the hearing of the summons and when judgment was delivered. An order was made dismissing the application but counsel for the respondents sought no order as to costs.…….. One might have expected some explanation for the failure to ask for costs but, the inference being clear that it was the respondents’ intention to seek costs, I conclude that there was an oversight on the part of counsel…. In L Shaddock & Associates Pty Ltd v Parramatta City Council [No 2] (1982) 151 CLR 590 this Court treated O 29, r 11 as a reflection of the inherent jurisdiction of a court to correct an error arising in the circumstances there mentioned and expressly held the rule to extend “to authorise an omission resulting from the inadvertence of a party’s legal representative” (at 594). This view was affirmed in The Commonwealth v McCormack (1984) 155 CLR 273…… None of the cases so far mentioned was concerned with a failure to ask for the costs of a successful proceeding. However In re Inchcape (Earl of) [1942] Ch 394 was such a case and Morton J there held that a rule comparable to O 29, r 11 empowered the court to amend an order to include provision for costs which had not been asked for earlier. So too was Rowe v Delfs [1966] WAR 49 where Hale J varied an earlier order by including a certificate for the cost of transcript which counsel had omitted to ask for…… There is no reason why the applicants should pay the costs of the present summons. It was brought about by an oversight on the part of the respondents to which the applicants did not contribute in any way. Indeed, if the applicants had been represented, a question may have arisen as to whether they should have the costs of this summons. But they were not represented and, pursuant to directions given by the Court, they filed written submissions. In the circumstances there will be no order as to the costs of this summons. But there will be an order varying the order of the Court made on 6 November 1987 by adding a provision that the applicants pay the respondents’ costs of the summons.” [21] Although there is clearly support in the material for the Respondent's submissions, I am inclined, on balance, to allow the Applicant to make out its application. A principal factor that I rely on in exercising my discretion is that I have little doubt, had the application for costs been made on 29 January 1999, that the Mining Warden would have awarded costs to the Applicants on the mining compensation matter. As the Respondent only excised its mining lease application from the Applicants land shortly before the hearing of the compensation application was listed to commence, I find that special circumstances exist for an award of costs to the Applicants. [22] I find further support for my conclusions in the proceeding paragraph by reference to the now repealed s. 368 of the MRA as it existed at the time this application was made on 23 July 1999. However, for the reasons that follow, I also find that the costs recoverable by the Applicants are much more limited than the Applicants seek. At the relevant time, s. 368 was in the following terms: “Costs 368.(1) Costs may be awarded by the Wardens Court in respect of any matter (including the hearing of applications and objections under this Act) brought before the Wardens Court. 8 [1988] 62 ALJR 151 extracts from pp151-2. -- 7 of 10 -- (2) Costs awarded by the Wardens Court shall be at the discretion of the warden and the amount thereof may be determined by the warden or taxed by the registrar of the Wardens Court as the warden may direct. (3) Any order of the Wardens Court striking out any action or matter upon the grounds that the Wardens Court does not have jurisdiction to hear and determine the matter may include any award of costs to the same extent and recoverable in the same manner as if the Wardens Court had jurisdiction and had found against the party bringing the action or matter.” [23] In my view, s. 368 was unhappily worded. It gave some support for the bringing of an application in the terms of that made by the application of 23 July 1999 by referring in general terms to “in respect of any matter” rather than “in any matter”. It further confused the issue by making reference to “including the hearing of applications and objections under this Act”. Compare this wording to that of s. 50 of the LRT Act, which makes clear reference to “costs in a proceeding”. [24] The Applicants seek costs in the sum of $56,072.20. I am in no doubt that the bulk of those costs relate to commercial negotiations between the parties and not to the Applicants determination of compensation. [25] None of the Applicants duly lodged an objection to the Respondent’s mining lease application. What the material discloses is that the Applicants and the Respondent entered into commercial negotiations for the sale of the Applicants’ property to the Respondent. The Applicants are not entitled to recover their costs for the commercial negotiations. They were not parties to the mining lease application, so they are also not entitled to recover the costs that an objector may have been entitled to. The Applicants costs must be limited to those that relate clearly and unmistakably to the matter before the Wardens Court for the determination of compensation. [26] The Respondent submits that if I were to award costs to the Applicants, such costs should be limited to the sum of $940.90. Whilst I have no doubt that the sum of $940.90 is much closer to the quantum of costs properly payable to the Applicants than the claimed sum of $56,072.20, I have insufficient material before me to properly fix the sum. [27] I accordingly order that the Respondent pay the reasonable costs of the Applicants with respect only to the matter before the Wardens Court for the determination of compensation relating to MLA 50132, such reasonable costs to be agreed between -- 8 of 10 -- the Applicants and the Respondent and, failing agreement, to be the reasonable costs as taxed by the Registrar of the Land and Resources Tribunal. [28] To remove doubt, I further order that there be no order as to costs with respect to commercial negotiations between the Applicants and the Respondent relating to the proposed sale of the Applicants’ property to the Respondent undertaken during the period June 1997 to January 1999. [29] There remain two further issues to deal with. The first is the issue of the costs of the Applicants’ application of 23 July 1999. As indicated earlier, there is little doubt that had the application been heard on 29 January 1999, costs relating to the compensation matter would have been awarded to the Applicants. The solicitor acting for the Applicants admits under oath that the issue of costs was not included in her firm’s letter to the Wardens Court of 28 January 1999 “in error”. [30] The issue of costs should have been included in the solicitor’s letter of 28 January 1999 and/or raised before the Mining Warden on 29 January 1999. The error has put the Respondent to unnecessary expense in circumstances not properly explained. I find that the Applicants’ neglect, through their solicitor, amounts to special circumstances for the purpose of s. 50 of the Act as regards the costs of the application. I note in particular the already quoted passages from the decisions of the High Court in Gould v. Vaggelas9 and Raybos Australia Pty Ltd v. Tectran Corporation Pty Ltd [No.2].10 I further note that in L. Shaddock & Associates Propriety Limited and Another v. the Council of the City of Parramatta,11 the Applicants were ordered to pay the Respondent’s costs of the application. [31] I therefore order that the Applicants pay the Respondent’s reasonable costs of and incidental to the application, such reasonable costs to be agreed between the Applicants and the Respondent and, failing agreement, to be the reasonable costs as taxed by the Registrar of the Land and Resources Tribunal. [32] The last issue relates to the question of costs thrown away by the Applicants and the Respondent with respect to their applications for costs before the Mining Warden. 9 [1983-1985] 157 CLR 271 at 276. 10 [1988] 62 ALJR 151 at 152. 11 [1983] 151 CLR 590 at 598. -- 9 of 10 -- [33] On this point, this case is very similar to Bendall & Ors v. Allgas Energy Ltd.12 As I said in that case, quoting from a previous decision of mine:13 “Both parties have suffered such loss in circumstances totally out of their control – namely the coming into force of section 83 of the LRT Act. I therefore grant certificates to both the Applicants and the Respondents pursuant to section 22 of the ACF Act.” [34] As was the case in Bendall, the coming into operation of s. 50 of the LRT Act is a significant shift in the legislation governing the award of costs. I was left with no option but to order fresh submissions on costs and hold a hearing on same. For the purposes of s. 22 of the Appeal Costs Fund Act 1973, the proceedings as to costs before the Wardens Court are discontinued. [35] I accordingly grant certificates to both the Applicants and the Respondent for costs thrown away in their respective applications for costs before the Wardens Court arising from the Applicants application dated 23 July 1999. 12 [2001] QLRT 59. 13 At 21. -- 10 of 10 --