Clark v Stawell Power Corporation & Hume [1999] QMW 55

80055COSTS.ROC 1 IN THE WARDEN’S COURT OF QUEENSLAND HELD AT ROCKHAMPTON IN THE MATTER OF: APPLICATION FOR COSTS IN RESPECT OF MINING LEASE APPLICATION 80055 IN THE ROCKHAMPTON DISTRICT BEFORE: F W WINDRIDGE, MINING WARDEN APPLICANT MINER: HAROLD BRUCE CLARK OBJECTORS: (1) STANWELL POWER CORPORATION (2) JEFFREY RONALD HUME (Mr D Williams, solicitor of Minter Ellison for both objectors) ORDER IN RESPECT OF COSTS Harold Bruce CLARK (hereinafter referred to as the miner or applicant miner) seeks a mining lease under the provisions of Part 7 of the Mineral Resources Act 1989 (hereinafter referred to as the MRA) The surface area sought is 9.56 hectares and the proposed term is 21 years. The lease is required for the purpose of mining for building stone and certain infrastructure associated with that mining. The lease application area is located on Lot 1 on RP 616642 being freehold land in the County of Livingstone, Parish of Stanwell, on a property known as “Mountview” which is owned by the second objector HUME. The application area is about five kilometres south of Stanwell. Access to the proposed lease is off a public road and through land held by the Stanwell Power Corporation (Stanwell), the first objector. [1999] QMW 55 -- 1 of 7 -- Warden’s Court of Queensland 14 May 1999 80055COSTS.ROC 2 Jeffrey Ronald Hume the second objector conducts a grazing operation on Mountview and lodged an objection containing a number of grounds of objection. The Stanwell Power Corporation lodged an objection in relation to the effect of the proposed access route. The application (for the lease) was heard at Yeppoon on 8th and 9th of December 1998 after an inspection of the lease area which was conducted on 7 December 1998. A recommendation against grant (dated 3 February 1999) was handed down on 9 February 1999 at Rockhampton. The objectors now seek their costs in respect of their objections. In relation to costs, the MRA provides: “368(1) Costs may be awarded by the Warden’s Court in respect of any matter (including the hearing of applications and objections under this Act) brought before the Warden’s Court. (2) Costs awarded by the Warden’s 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 Warden’s Court as the Warden may direct or a taxing officer of a District Court or of the Supreme Court.” There is also a general power to award costs in section 376(1) which states: “376(1) In all matters within its jurisdiction, a Wardens Court shall have power to- (k) award costs ; as it thinks fit for the purpose of effectively disposing of any matter before it according to the merits of the case.” Section 268(10) and 268 (11) deals with costs of an application where certain circumstances exist, but these circumstances do not apply here and therefore need not be considered. There is little assistance to be gained from other decided cases in this jurisdiction. In respect of applications under Part 7 of the MRA, costs were seldom applied for in the -- 2 of 7 -- Warden’s Court of Queensland 14 May 1999 80055COSTS.ROC 3 past. However, it is now common for parties to engage legal counsel and to seek their respective costs in appropriate cases. The discretion to award costs must be awarded judicially (see Donald Campbell & Co Ltd v. Pollak (1927) A.c. 732 at 811 and 812). The rationale is that any award of costs be just and reasonable (see Latoudis v. Casey 1990 170 CLR 534 at 566-7). Costs between party and party are given as an indemnity: they are not imposed to punish a party (see Civil Procedure Victoria Vol 1 – Williams 5603.6). See also Michael J Wills v. Minerva Coal Pty Ltd – Land Court Brisbane 9 February 1999 – unreported, (the Minerva case) where Mr R P Scott , member of the Land Court held: “One general guiding principle is that one must start with no preconceptions as to the exercise of the discretion to award costs, save that it must be exercised ‘judicially’. That means for reasons that can be considered and justified. There are however some other general principles which may be relevant to this case.” In Hughes v. Western Australian Cricket Association (Inc) & Ors (1986) ATPR 40-748 (“Hughes”) Toohey J said at 40-748: “1. Ordinarily, costs follow the event and a successful litigant received his costs in the absence of special circumstances justifying some other order. Ritter v. Godfrey (1920) 2 K.B. 47. 2. Where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed. Foster v. Farquhar (1893) 1 Q.B. 564. A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party’s costs of them. In this sense, ‘issue’ does not mean a precise issue in the technical pleading sense but any disputed question of fact or law. Cretazzo v. Lombardi (1975) 13 S.A.S.R. 4 at p.12.” 3. From Courtney Creche Pty Ltd v. Okko’s Fine Art and Custom Framing Pty Ltd, 22 June 1995 (unreported Supreme Court of New South Wales) at 24: -- 3 of 7 -- Warden’s Court of Queensland 14 May 1999 80055COSTS.ROC 4 “There is always a reluctance to make an order for costs against a successful party and ordinarily the Court will only do so if there are special factors present, Donald Campbell and Co Ltd v Pollack (1927) AC 732; Deen v The Different Drummer Pty Ltd (1977) ACLD 526. Although most of the cases deal with successful defendants, the rule is basically the same for both plaintiffs and defendants, Ritter v Godfrey (1920) 2 KB 47, 52 approved in Campbell’s Case at 814. Again, the authorities show that, normally, the successful party should get its costs even if it succeeds on some issues only, unless some issue was dominant or separable. The first question will often be whether the plaintiff can be said to be successful or substantially successful. Thus a plaintiff who receives only nominal damages when it had sought substantial damages is not categorized ‘successful’; Alltrans Express Ltd v CVA Holdings Ltd (1984) 1 All ER 685, 690-692.” There is a wide and general discretion of the Court to award costs, and matters which the Court will take into account in exercising its discretion to award costs are: (a) The administrative nature of the hearing; (b) Whether and to what extent an objection resulted in a recommendation as a condition of grant; (c) Whether an objection plainly lacks bona fides or is obviously frivolous; (d) Whether an objection once having been lodged was pursued in Court by the objector and the circumstances attendant to that pursuit; (e) Whether objections were introduced into the proceedings in addition to those already lodged; (f) The conduct of the application by the applicant and the objector; (g) The respective positions of the parties. There is clearly some overlapping with respect to (b), (c), (d), (e), (f) and (g), and these considerations are by no means exclusive. It has been previously raised that in this jurisdiction any person exercising a statutory right to object should not be subject to any order of costs. In my opinion, the exercise of that statutory right should not deprive the other party or parties of their right to recover their costs where the allegations or objections have been found to be unproved, unfounded, or lacking in objectivity. -- 4 of 7 -- Warden’s Court of Queensland 14 May 1999 80055COSTS.ROC 5 The Federal Court in hearing the appeal in the matter Friends of Hinchinbrook Society Inc v Minister for Environment (1997) 142 ALR 632 considered the questions of costs in the category of litigation described as “public interest litigation”. The reasons for judgment were handed down in Sydney on 30 April 1998 by Northrop, Burchett and Hill JJ. This majority decision of the High Court (in Richmond River Council v Oshlac (1996) 39 NSWLR 622) does not lay down a rule for the application in other cases in the making of costs orders. It affirms the width of discretion conferred upon a court in relation to costs, with particular reference to the specially wide discretion it held to exist under the legislation with which Oshlac v Richmond River Council was concerned. See also Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166 at 170-171: “If a body is set up to pursue causes, which its founders consider to be in the public interest, and which generally may be in the public interest, by means including court proceedings against others, it does not follow that those proceeded against should be deprived of the ordinary protection of a right to an order in respect of costs in the event the claims made against them prove unfounded.” Clearly an objector has the duty to appear and produce evidence to substantiate his objection. The ground of objection must be of such objective weight that the only conclusion that can be reached is that the lease is granted subject to special conditions, or recommended for rejection on the grounds as set out in the notice of objection proved to the satisfaction of the Court. The purpose of an objection is just that, ie an assertion that the lease should not issue for good reason or reasons. The lodgment of a notice of objection does not automatically invoke a right of “veto”. If an objection is not substantiated, the objector fails. The ground of objection must be of such weight that it results in a negative recommendation. The only “fall back” position is if the objection results in a condition being imposed that is not able to be catered for in the plan of operations (POO) (s291(1)(a), the environmental management overview strategy (EMOS) (s.291(1)(b), or any compensation -- 5 of 7 -- Warden’s Court of Queensland 14 May 1999 80055COSTS.ROC 6 agreement. Clearly the most opportune time to incorporate any concerns into the POO, EMOS, or compensation agreement is prior to the hearing. I make the following comments with respect to the objection by the Stanwell Power Corporation: In the matter of the application for the mining lease, this objector raised two issues and these related to (a) the access road and financial contribution for maintenance, and (b) inappropriate land use in that the access road passes through a gazetted nature refuge. These objections were dealt with in the recommendation at pages 10 and 11. No objection was substantiated to the extent that the lease was recommended for rejection on the grounds stated by Stanwell. The establishment of the nature refuge took place near the end of the term of the previous lease, or after the term had expired. In any event, Dr Mezler indicates that during investigation of the proposed refuge, there was awareness of the existence of the former lease (t/s p151) and the access to it. There appears to have been no serious attempt to resolve the issues by suggestions of an alternative access. The objections by Stanwell were not of sufficient objective weight to justify a rejection of the application, and in that regard Stanwell has failed. I award no costs in respect of the objection by Stanwell. The objector Hume raised a number of objections and these related to past performance, lack of financial, technical and managerial capabilities to carry out the proposed mining operations, inappropriate term, sound land use management, adverse environmental impact, not in the public interest, and future and prospective uses of the land. Ground eight raised a number of issues that the objector claimed were good reasons to refuse the grant of a lease. Most of these issues, at least those considered relevant and of sufficient weight to warrant consideration were dealt with in the recommendation. The recommendation -- 6 of 7 -- Warden’s Court of Queensland 14 May 1999 80055COSTS.ROC 7 to the Minister was that the applicant had failed to satisfy the Court that he possessed the necessary financial and technical skills necessary to develop the project and complete the mining operation. A deal of hearing time and a considerable amount of evidence went into this point, and it was a valid point for the objector to raise, given his experience and observations of the operations conducted by Clark on the previous lease. Whilst it can be seen that the balance of the grounds of objection raised by Hume were not accepted as being of sufficient weight to warrant a rejection on those grounds, singularly or collectively, it could not be said that such grounds were frivolous. I am satisfied that Hume did have some concerns about these matters and he cannot be criticised for raising them. Mr Clark appeared without representation and was ill prepared to respond to the objections of which notice had been given. He has not assisted his own cause in that regard. Having regard to the nature of the application, the nature of the evidence called, the fact that only one ground of objection was upheld and the final recommendation, I award the objector Hume 70 per cent of his costs to be taxed by the taxing officer of the District Court at Rockhampton with professional costs at the higher Magistrates Court scale (G). Dated at ROCKHAMPTON this 14th day of May 1999. FW WINDRIDGE MINING WARDEN -- 7 of 7 --