Bendell & Ors v Allgas Energy Ltd [2001] QLRT 59

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re Bendell & Ors v Allgas Energy Ltd [2001] QLRT 59 PARTIES: Leonard J Bendell, Norman Eaton, John James Stewart, Susan Barbara Stewart and Mary Ursic (Applicants) - and - Allgas Energy Ltd (Respondent) FILE NO: PGX80002/2000 PROCEEDING: Application for costs DELIVERED ON: 6 August 2001 DELIVERED AT: Brisbane HEARING DATE: 27 April 2001 PRESIDING MEMBER: Smith DP ORDERS: 1. I make no order as to costs. (at [19]) 2. For the purposes of s. 22 of the Appeal Costs Fund Act 1973, the proceedings as to costs before the Wardens Court are discontinued. (at [23]) 3. I grant certificates to both the Applicants and the Respondent for costs thrown away in their respective applications for costs before the Wardens Court following the Mining Warden’s Determination of Compensation in this matter. (at [24]) CATCHWORDS: COSTS – SPECIAL CIRCUMSTANCES – COSTS THROWN AWAY - CERTIFICATES Land and Resources Tribunal Act 1999, ss. 50 and 83 Mineral Resources Act 1989, s. 368 Petroleum Act 1923 Appeal Costs Fund Act 1973, s. 22 Leinung v Mann [2000] QLRT 6, applied -- 1 of 7 -- 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 S.S. Hontestroom v. S.S. Saja Porak [1927] A.C. 37 at 47, considered Powell v. Streatham Manor Nursing Home [1975] A.C. 243 at 266, considered Gold Coast City Council and Suntown Pty Ltd (1979) LCR vol 6 at 46-61 and 196-212, considered Sullivan and Anor v. Oil Company of Australia Limited and Anor [2000] QLRT 3, applied COUNSEL: N/A SOLICITORS: Mr D Ellerman of Anderson & Company for the Applicants Ms G Ryan of Lees Marshall Warnick for the Respondent [1] SMITH DP: This proceeding is before me in circumstances where s. 83 of the Land and Resources Tribunal Act 1999 “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] On 18 February 2000, in an application for compensation under the Petroleum Act 1923, the Mining Warden made his determination of compensation payable to the Applicants. The determination is silent as to the matter of costs, and following the handing down of the determination both the Respondent and the Applicants applied for costs. [3] The Mining Warden reserved his determination in relation to costs. As at 18 September 2000, the date upon which the Land and Resources Tribunal -- 2 of 7 -- 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 Although that matter concerned proceedings under the Mineral Resources Act 1989 (hereafter “the MRA”), the same considerations apply to matters before the Mining Warden under the Petroleum Act 1923. [5] In 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 Land and Resources Tribunal Act 1999 (hereinafter “the LRT Act”) and not the now repealed s. 368 of 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.2 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. [8] The Applicants, who originally sought an award for costs before the Mining Warden, contend that special circumstances do not exist in this matter to warrant an award for costs. They further contend that, but for the wording of s. 50 of the LRT Act, they would have maintained an application for an award of costs in their favour. 1 [2000] QLRT 6. 2 See, for example, Leinung v. Mann [2000] 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; and Re Milos Bjelivuk, Sedina Bjelivuk and Ivan Uzarevic and Gemstone Exploration Pty Ltd [2001] QLRT 49. -- 3 of 7 -- [9] The Respondent submits that special circumstances do exist and warrant an award for costs in its favour. The Respondent claims that “on any objective analysis the claim made could only be described as being grossly excessive”3 [10] In order to fully consider this matter, it has been necessary for me to carefully consider the determination by the Mining Warden dated 18 February 2000, together with a large bundle of material considered by the Mining Warden in making his determination. I note that the hearing of the original compensation claim took place over 3 days in Brisbane on 10, 11 and 12 August 1998. It is clearly a matter of regret that an action which had been before the Mining Warden for so long, both in the Mining Warden’s original consideration of the matter, and in his consideration of applications for costs, was not wholly concluded prior to the Tribunal receiving its jurisdiction. [11] In this regard, I note the submissions of the Applicants, at paragraphs 18 and 19, in the following terms: “18.It is submitted that the Tribunal should be very cautious about departing from the clear intent of the legislation that each party should bear their own costs in most cases. 19. In some ways the Tribunal’s positions is analogous to an Appeal Court considering a finding of fact made at first instance. It is submitted that it is unsafe for the Tribunal, in the absence of a direct finding by the Warden, to attempt to make any finding as to the credit of witness or the credibility of either parties’ case as it is in an inferior position to do so (c.f. S.S. Hontestroom v. S.S. Saja Porak [1927] A.C. 37 at 47; Powell v. Streatham Manor Nursing Home [1975] A.C. 243 at 266).” [12] There is some force in the submissions of the Applicants on this point. I should also state my appreciation to both the Applicants and the Respondent for the detailed submissions that they provided me with for the hearing of this application and the references to various authorities. I have fully taken both the submissions and the referred authorities into account in determining this matter. [13] Of relevance as to whether or not special circumstances exist is the nature of the claim made for compensation, and the Mining Warden’s determination. The following chart summarises the position with respect to each of the Applicants in this matter: 3 Submissions of Respondent at para 38. -- 4 of 7 -- Owner Claim Respondent’s Assessment Determination Eaton $ 67,000 $ 6,820 $ 9,300 Stewart $182,500 $10,000 $17,000 Bendell/Ursic $61,000 $ 2,250 $ 6,200 [14] A key feature of the large distance between the Applicants claims to compensation and the Respondent’s assessment related to claims by the Applicants linked to buffering or buffer zones. In this regard, the Mining Warden made the following findings4:- “I find I am not persuaded that there is any legal requirement for a buffer in relation to an underground gas pipeline apart from the standard 25 metre easement, or that there is any similar requirement by local government. It appears that the reference to a 200 metre buffer (the development impact area) merely triggers further consideration in relation to the suitability of certain development within that 200 metre zone as far as planning or local authority approvals are concerned. There is no evidence that the local authorities referred to in evidence actually impose buffer zones. To convert the “buffer” to layman terms, the buffer is twice the length of the playing surface of Suncorp Stadium, on both sides of the easement. This is clearly untenable, and the bulletin itself admits the 200 metre buffer is not always practicable or achievable. However, it is apparent that there are certain restrictions and limitations as to what can occur within some distance of a buried gas pipeline. Obviously, construction of any dwelling or building on top of any buried pipeline, even water, could lead to complications, and should be avoided, if only on the ground of inconvenience. It is also obvious that there would be other restrictions, but it is also clear that there are other permitted activities such as passive recreational uses or limited rural use such as grazing. While I consider that is the legal reality of the situations we have before us, the public perception over the existence of a buried gas pipeline is somewhat different, and that warrants consideration of each case on an individual basis.” [15] The Respondent, in its submissions, says that the Applicants claim with respect to buffer occupied a significant part of the case and were inconsistent with and contrary to well established principles of compensation laid down in a number of Queensland decisions.5 [16] Although it is clear that the Mining Warden found in favour of the Respondent with respect to buffer, a close examination of the material before the Mining Warden reveals that there was some support for the propositions put by the Applicants. I refer in particular to the Local Government Bulletin of July 1986 covering “Urban Development Adjacent to High Pressure Pipeline Easements”; 4 At p 9 of the determination of 18 February 2000. 5 See Respondent’s submissions paras 39 and 40. -- 5 of 7 -- the planning scheme for the Shire of Gatton Planning Study Report 1994; the Planning Study for Jondaryan Shire Council of November 1993; and the Land Court and Land Appeal Court’s decisions in Gold Coast City Council and Suntown Pty Ltd.6 [17] I note that the Local Government reports referred to in the preceding paragraph, as well as the decisions in Suntown, were relied upon by the Applicants’ valuers for the purpose of assessing compensation in this matter. [18] I further note that each of the claims ultimately awarded to the Applicants by the Mining Warden exceeded the assessments made by the Respondent. [19] Accordingly, in the circumstances, I am not persuaded that special circumstances exist in this matter which support an award for costs to the Respondent. I note that the Applicants do not seek an award for costs. I therefore make no order as to costs. [20] I now turn to the issue of costs thrown away by the Applicants and the Respondent with respect to their applications for costs before the Mining Warden. [21] On this point, this case is very similar to Sullivan and Anor v. Oil Company of Australia Limited and Anor.7 As I said in that case:8 “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.” [22] The present case differs from Sullivan only on one point. In Sullivan, the matter could have been considered by me on the submissions already made before the Mining Warden, as there had been no change in the legislation at the heart of the preliminary issue to be determined. I decided, however, to formally discontinue the interlocutory proceedings. 6 (1979) LCR vol. 6 at 46-61 and 196-212. 7 [2000] QLRT 3. 8 At 3. -- 6 of 7 -- [23] In this case, 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.9 For the purposes of s. 22 of the Appeal Costs Fund Act 1973, the proceedings as to costs before the Wardens Court are discontinued. [24] 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 following the Mining Warden’s determination of compensation in this matter. 9 See Order of 16 January 2001. -- 7 of 7 --