Arco Coal Australia Incorporated & Ors v United Plantations (Australia) Pty Ltd [1998] QMW 8

IN THE WARDEN'S COURT HELD AT BRISBANE MLA 70110 (Emerald) APPLICANTS: OBJECTOR: ARCO COAL AUSTRALIA INCORPORATED & ORS ("ARCO") UNITED PLANTATIONS (AUSTRALIA) PI'Y LTD ( 11 UPAL 11 ) MA1TER CONTESTED: APPLICATION BY OBJECTOR FOR COSTS APPEARANCES: For Applicants (Respondents) • Mr P Ambrose, of Counsel, instructed by Messrs Clayton Utz For Objector - Mr R Douglas QC and with him Mr D Savage of Counsel, instmcted by Magney & Rhodes BEFORE: Mr J D COSTELLO, Acting Mining Warden DATE: 27 January 1998 Following upon the Court of Appeal's decision in United Plantations {Australia) Pty Ltd v Arco Coal Australia Inoomorated & Ors (Appeal No 8615 of 1996) an application has been brought by UPAL seeking the following orders:- 1. The Warden recommend to the Minister that the application should be rejected in whole. 2. The Applicants pay the Objectors costs of and incidental to the application (including the cost of this Summons). 3. The costs be taxed on the Supreme Court scale and on a solicitor/client basis or howsoever as the coun determines. 4. Such further or other orders as the court deems fit. [1998] QMW 8 -- 1 of 6 -- 2 With respect to (1), I bad originally been advised that UPAL would be bringing a strike-out application with the obvious consequences in terms of the future of the application were it to succeed. Instead, the parties have by consent agreed to paragraph (1) of the application. The substance of the application therefore relates to the question of costs. Both parties have made lengthy written submissions. Section 368 of the Mineral Resources Act 1989 (as amended) relevantly provides that:- "(l) 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 Coun, (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 reg,isuar of the Wardens Court or a taxing officer of a District Coun or of the Supreme Court 1 as the warden may direct. " UPAL has argued for costs on a solicitor/client basis as set out in paragraph 2, 3 and 4 of Counsels' written submission. ARCO has vigorously resisted the application as set out in paragraph 5 .1 through to 7.5 of Counsel's written submissions. I have carefully considered this ·material. See Act No 14 of 1997. -- 2 of 6 -- 3 The jurisdiction to award costs is expressly given by Section 368 of the Act. As set out by Mr Ambtosc in his submissions. the Warden has a discretion to award costs and in every case where the discretion is to be exercised. the governing principle is that any award must be just an4 reasonable: (see, Latoudis v Casey (1990) 170 CLR 534 at 566-7). The discretion is to be exercised judicially, i.e. in accordance with legal practice, reason and justice: (Donald Campbell & Co Ltd v Pollak [1927] AC 732 at 811. 812). It must also be said "the costs between parties are given as an indemnity: they are ··" not imposed to 'punish' a party": (see, Civil Procedure Victoria. Vol 1 - Williams at / 5603.6). ARCO's principal submission is that on each of the occasions on which costs might be awarded. each party should bear its own costs. Alternatively, if costs orders are to be made then it is necessary to examine the relative merits of each of the applications .individually and rule accordingly. Mr Ambrose, Counsel for ARCO, has also pointed out that the particulars of paragraph 11 (which is a reflection of Objection Nwnber 3 set out in the Form of Objection datc;d 19 January 1995) is different from the basis of that argued in the Court of Appeal. (Sec. letter from Messrs Nicol Robinson & Kidd to Messrs Clayton Utz dated 29 May 1995.) I must say that even if there was some merit to this observation. it made no difference to the approach of the Court of Appeal on the question of costs. I I , l -- 3 of 6 -- ,I I \ 4 As set out in Section 368 of the Act, costs are discretionary. I have not approached the question of the exercise of this discretion with any preconceived notion. F.ach case should be determined on its merits. l have certainly not approached the matter on the basis that costs should follow the event. Mr Ambrose has drawn to my attention the matters considered by me in Portman Mining Ltd v Trentstone Pty Ltd Shaw and Davies MLA 70,109. These matters were - (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/application plainly lacks bona tides or is obviously frivolous; (d) whether an objection/application once having been lodged, was pursued iD the court by the objector/applicant and the circumstances attendant to that pursuit; (e) whether objections were introduced into the proceedings in addition to those already lodged; (t) the conduct of the application by the Applicant and the Objector; (g) the respective position of the parties. I have considered these matters. I have also taken into account that both parties are commercial concerns who sought to advance and protect their own interests. The matters raised were complex. ARCO is a substantial trading entity. Both parties are capable of paying costs. It is also a factor in the exercise of my discretion, that as a consequence of the Court of Appeal decision in this matter; Minvig Lease -- 4 of 6 -- I • • \ ) '· , 5 70110 was fatally flawed from the outset whether that be the date of filing on 22 December 1994 or alternatively, the date objections were lodged on 19 Jamwy 1995, specifically. Objection Number 3. In the exercise of my discretion, it is just and reaso~ble that UP AL should recover its cost.s. I reject the discrete approach argued by Mr Ambrose as set out in paragraph 5 of bis submissions. I also reject the notion that UPAL should write the costs off as a "legitimate business expense" (Solomon Services v Wongarra Shire Council [1988] 2 Qd R 202) . As to whether costs should be on a solicitor/client basis, my view is that this is not an appropriate case for such an order, In arriving at th~ view. I have considered the submission of Counsel and the cases of Colgate Palmolive Co v Cousins Pfl' Ltd (1993) 46 FCR 225; Susan Pender Jewellety pty Ltd v Mira&c {Operations) Pty Ltd & Anor (1997) ATPR 41-549; Wentworth v Rogers (No 5) (1986) 6 NSWLR 524; Australian Transport Insurance _Pn,: Ltd and Anor v Graeme Phillips Road Transport Insurance Pty Ltd & Ors () 986) 71 ALR 287; and Preston v Preston (1982) 1 All ER 41 at SS. The orders will be as follows:- 1. By consent, I will recommend to the Minister that Mining Lease Application 70110 should be rejected in whole. 2. ARCO pay UPAL's patty and party costs of and incidental to Mining Lease Application 70110 (including the costs of this Summons) and any -- 5 of 6 -- •· . ,, I \ 'J 6 twenty-eight (28) days from the date hereof, as taxed on the Supreme Court scale by a Taxing Officer of the Supreme Court. I certify for Senior Counsel. at Brisbane this thirtieth day of January 1998. ~ -~ J D COSTELLO / .. Acting Mining Warden -- 6 of 6 --