Dyer & Ors v Anson Plant Hire Pty Ltd & Ors [1996] QMW 27

- / ---- - -- ---- - --- --- -- ------ IN THE WARDENS COURT OF QUEENSLAND HELD AT BRISBANE. . -t ~;·-:• .. /- ', . .. .· , IN THE MATTER OF; APPLICATION FOR COSTS IN RESPECT OF BEFORE: APPLICANT: RESPONDENT: MINING LEASE APPLICATIONS 70077, 70078 and 70079 IN THE EMERALD MINING DISTRICT. F.W.WINDRIDGE. MINING WARDEN. MR.A.W .APPLETON, solicitor of PURCELL and APPLETON, solicitors, for M.C.DYER & Ors. MR.C.LUMSDEN, solicitor of IAN HAIG and PARTNERS, solicitors, for ANSONS PLANT HIRE PTY LTD & Ors. [1996] QMW 27 -- 1 of 7 -- - -- - - - - · f ( 2 RULING: This application for costs is in respect of three mining lease applications that were lodged with the Registrar at Emerald on 20 July 1993. The applications related to leases where the purpose of the lease was to mine for gold and silver. The areas of the leases were 9 hectares, 6.9989 hectares and 31.81 hectares. The lease application areas were located on Lot 15 on CLM 612, County of Clermont, Parish of APSLEY, in State Forest 117. Messrs MC, R W J, and CV Dyer lodged an objection to the three applications, citing their grounds of objection as contained in their notice of objection which was duly lodged. Subsequently a hearing was conducted at Em·erald on 29 March 1994. All parties appeared and gave evidence on their own behalf. In a recommendation handed down on 18 May 1994, it was recommended to the Minister that the leases be not granted. It should be noted that as per page 2 of the recommendation, all lease applications areas were in close proximity to each other, that the background tenure was held by the same persons, and the objectors and the objections were the same. Therefore all applications were considered at the one combined hearing. -- 2 of 7 -- C r 3 It should also be noted that no representative appearing in respect of this application was actively involved in the initial lease application hearing. Mr.J.Crossan appeared as town agent on behalf of the solicitors for the objectors. The objectors to the original lease application hearing have brought this application for costs. The applicant for the leases is the respondent in these proceedings. Submissions were taken in Emerald on 11 December 1995. The delay in handing this matter has been caused by events surrounding the Moura No. 2 Underground Mine disaster and subsequent Inquiry. The applicant seeks an order for costs in the sum of $1342.77. Details are set forth in a "memo of fees" type document dated 11 September 1995 and admitted as exhibit 1 in the cost proceedings. The costs claimed are in accordance with the Supreme Court Scale of Fees. In his submission supporting the application, the legal representative of the applicant (objectors) referred to a number of matters including a ruling handed down by Deputy Warden Costello on 29 August 1995 in MLA 70109 ("Shaws case"), the recommendation for rejection of the three lease applications, the objectors right to object and the grounds of objection, and the scale of costs that would be appropriate. In reply the legal representative for the respondents (applicant) submitted on the grounds of objection, the basis of the applications, and the nature of the proceedings. There was also the written submission which set out some of the facts and the law on the subject. -- 3 of 7 -- 4 While the ruling in "Shaws Case" (MLA 70109) is not binding on another Warden, it obviously may have persuasive value and is worthy of consideration in similar circumstances. The reality of the jurisdiction is that not all circumstances are similar and there are many variations of facts and circumstances which attach to each individual application. It is therefore plain that each application for costs must be considered on its own merits, and each case will tum on its own particular facts. In mining lease application hearings, applications for costs are not always pursued, nor do costs necessarily follow the event. There is a body of thought that the application proceedings being administrative in nature, no costs should be allowed as the parties are merely pursuing their rights under statute law. Unfortunately, experience has shown that grounds of objection are not always succinct, objective, or in some cases, relevant to the proceedings. If the objection puts the applicant to his proof and necessitates that he call evidence, particularly expert evidence, in rebuttal, then he has the reasonable expectation of clawing back some of his costs if he is successful in rebutting the grounds of objection and receiving a favourable recommendation. Similarly, if the lease is recommended for rejection, the objector may have grounds for considering that some or all of his costs may be recoverable, subject to the effect his objection may have had on the final recommendation. There is the general power to award costs in section 368 of the act. In relation to applications, the act at section 268 subsections 10 and 11 specifically gives power to award costs in particular circumstances. As far as I am aware, the applications were not recommended for grant by the Minister to the Governor in Council under section 234 of the act. There is no real evidence to this fact but it seems to be uncontested. It is assumed therefore that the -- 4 of 7 -- 5 Minister has completed his action under section 287 ie notification of rejection with reasons. For the purpose of these proceedings, it is immaterial what reasons are given by the Minister. In my opinion the Minister may adopt the reasons advanced by the Warden, may delete any part of any recommendation , or add one or more of his own if he considers the evidence or material justifies any reason. I consider the ministers discretion on this point is unfettered, subject to there being a justifiable ( ' \,_ ' reason given. Only at this stage does the Minister's decision become subject to judicial review, this decision having finally determined the rights of the parties, as against the Wardens recommendation which does not settle the rights of the parties and does not bind any person including the Minister. In these proceedings we are considering the question of costs when the matter was before the Wardens Court, and the two reasons advanced by the Warden for rejection of the applications were: 1. the applicant has failed to satisfy the Court that mineralisation exists sufficient to justify the grant of a lease; and 2. the applicant does not have a satisfactory history as far as the lodgment of royalty returns and payment of royalty is concerned. It is correct as Mr Appleton submits that the final reasons advanced to the Minister for rejection of the application were not matters raised by the objector in his notice of objection. -- 5 of 7 -- r 6 It is also correct, as submitted by Mr. Lumsden, that notwithstanding the stated reasons for rejection, the recommendation did in parts refer to the some of the grounds of objection and in general made comment on them or found those grounds to be valid matters of interest to the objector. Certainly ground 3 of the objection may have been considered further but it likewise may have been pushed into the compensation category. However, the determination of compensation in relation to this disturbance may have been high enough to cause the applicant to reconsider his attitude to that particular application area. The position then is that the objections and evidence tendered by the objector did tend to have some influence on the matters that were considered by the Warden, although in the end the reasons advanced to the Minister were different. But while different, they were insurmountable by the applicant and any other reason against any recommendation for grant was of a lower value and not advanced in view of the reasons 1 and 2 ultimately given. To the extent that the Warden considered the grounds of objection as part of the matters which he was required to examine, and ultimately recommended against the grant of the application, the objector was successful, although the final grounds were not directly raised by him. Under the circumstances I consider that the applicant (objector) is entitled to part of his costs as determined below. I do not consider that the issue being contested warrants the Supreme Court scale, or that solicitor/client costs are appropriate. These costs will be taken from the scale of costs applicable to Magistrates Court proceedings, category B, the representation -- 6 of 7 -- 7 being non counsel, and the matters under consideration not being complex unusual or requiring any in depth research or detailed analysis by other expert witness. Item 2 Instructions to defend. $148.00 Item 5(b) Preparation for trial. $322.00 Item 7(a) Solicitor on hearing - 1 day. $322.00 Item 12(a) Application to Court (costs) $ 72.25 Other costs allowed: Town Agents Fees (with item 7(a) to bring award to total charges ($500.00) $178.00 TOTAL $1042.75 Dated at Brisbane this 22 March 1996. -- 7 of 7 --