Boserio v Thornton [1999] QMW 42

20295COSTS.MAR 1 IN THE WARDEN’S COURT OF QUEENSLAND HELD AT BRISBANE IN THE MATTER OF: APPLICATION FOR COSTS IN RESPECT OF MINING LEASE APPLICATION 20295 IN THE MAREEBA DISTRICT BEFORE: F W WINDRIDGE, MINING WARDEN APPLICANT MINER: BRIAN AUGUSTINE BOSERIO, represented by Mr K G Priestly, instructed by Shand Taylor, Solicitors OBJECTOR: DAVID GARNER THORNTON, represented by Mr R F Quinn, instructed by McDonalds, Solicitors DETERMINATION: Brian Augustine BOSERIO (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 13.87 hectares and the term of the proposed lease is 20 years. The lease is required for the purpose of mining for building stone namely sandstone and slate, and for infrastructure purposes associated with that mining. The lease application area is located on Lot 581, CF 15, being part of GHPL 14/232, County of Chelmsford, Parish of Whumbul, and is located about 65 kilometres north of Mt Carbine, being part of a property known as Curraghmore Station. David Garner Thornton (hereinafter referred to as the owner or landowner) conducts a grazing operation on Curraghmore Station and lodged an objection to the application by Boserio. [1999] QMW 42 -- 1 of 7 -- Warden’s Court of Queensland 1 April 1999 20295COSTS.MAR 2 The application was heard at Mareeba on 26 November 1998 after an inspection on 25 November 1998, and a recommendation in favour of grant without conditions was handed down on 22 December 1998. The applicant miner now seeks his costs in respect of the application. 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 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 -- 2 of 7 -- Warden’s Court of Queensland 1 April 1999 20295COSTS.MAR 3 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: “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 -- 3 of 7 -- Warden’s Court of Queensland 1 April 1999 20295COSTS.MAR 4 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. 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 -- 4 of 7 -- Warden’s Court of Queensland 1 April 1999 20295COSTS.MAR 5 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.” Mr Quinn raises the point that the landowner is a different category of objector to the “public interest litigant”. That is clearly obvious, but I do not see that any difference in status as an objector relieves the objector (affected landowner or otherwise) of his obligation to substantiate his objections. Those objections must be of such objective weight that the objection results in the lease being granted subject to special conditions, or recommended for rejection on the grounds set out in the notice of objection as proved to the satisfaction of the Court. The purpose of an objection to the grant of a lease is just that, i e 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”. The objector has the obligation to appear and produce the evidence that the Minister will accept as weighing against the grant of the lease. If the 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) (s 291(1)(a), the environmental management overview strategy (EMOS) (s.291(1)(b), or any compensation agreement. I make the following observations with respect to the objections by Thornton: In the matter of the application for the mining lease, the objector raised four issues that were dealt with on pages 8 to 11 of the recommendation. No objection was substantiated to the extent that the lease was recommended for rejection, or resulted in conditions being imposed. In that respect the objector wholly failed. -- 5 of 7 -- Warden’s Court of Queensland 1 April 1999 20295COSTS.MAR 6 I take into account one very pertinent fact, and that is that the applicant miner has conducted a similar mining operation on the same area for at least eight years. The application was basically a method to add two slivers of land to the existing lease to incorporate that small part of the proposed “factory” that would protrude several metres outside the existing boundary on one side, and several metres at the rear of the lease to incorporate an area that would eventually be needed as a dump for waste rock. Except for a desire to cater in a small way for tourists who might call in while travelling past, the proposed operation was basically the same that had existed for the past eight years, as far as mining and processing was concerned. The “factory” referred to in evidence appears to be no more than a roofed area where the slate will be assembled into tiles and scrubbed down prior to removal off site by road transport. I take into account that the objector had in his own hands the means or the right to take the necessary steps to restrict or stop entry of unauthorised persons onto or through his property. The fact that tourists were exercising their right to proceed down a length of public highway that was not officially closed is immaterial to the applicant miner and outside the jurisdiction of this Court. It was not raised in evidence but perhaps the applicant miner was unaware that he could have let his current lease continue while adding other purposes by a simple application under section 298(4) of the MRA, and could have varied his access by an application under section 317(1) of the MRA. The small area taken for the stockpiling of waste rock on the north-west side of the existing lease could have been pegged as a new small lease and taken with little or no effect on the landowner. The miner could have minimised his exposure to objections if he had elected those strategies. Further, as I understand the evidence, the area taken over and above what already existed as a mining lease was about 1.53 hectares. In respect of affidavit material tendered in respect of “without prejudice” discussions that took place between the parties prior to the hearing, such material indicates that while there were some discussions with certain proposals, nothing eventuated. The negotiations seem to have been somewhat hampered by another issue that did not arise for consideration under the jurisdiction of the Court or the MRA. -- 6 of 7 -- Warden’s Court of Queensland 1 April 1999 20295COSTS.MAR 7 The other matters under section 269 on which the applicant had to satisfy the Court did not form part of the hearing, and there was a saving of time in that regard. I note that Mr Priestly appeared for the applicant miner without his instructing solicitor both at the hearing and the application for costs. There was therefore a saving of costs for those appearances. In respect to the matters referred to as “general comments” on page 11 of the recommendation, these comments should be seen for what they are, i e general comments that advise the parties of rights that exist, and nothing more. They are not a condition or limitation on the grant of the lease. In effect, the objections lodged by the landowner Thornton although not frivolous in my opinion realistically had little or no chance of achieving a negative recommendation on any objective consideration of the evidence. Therefore I can see no special circumstance that justifies any order other than costs follow the event in this instance. I order that the objector DAVID GARNER THORNTON pay the costs of the applicant BRIAN AUGUSTINE BOSERIO at the lower District Court scale, such costs to be taxed by the taxing officer of the District Court at Cairns (s 368 MRA). Dated at Brisbane this 1st day of April 1999. F W WINDRIDGE MINING WARDEN  1999 -- 7 of 7 --