Anson Holdings Pty Ltd v Wallace
[2010] QLAC 4
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Anson Holdings Pty Ltd v Wallace[2010] QLAC 4
- Add to List
Anson Holdings Pty Ltd v Wallace[2010] QLAC 4
Anson Holdings Pty Ltd v Wallace[2010] QLAC 4
LAND APPEAL COURT OF QUEENSLAND
CITATION: | Anson Holdings Pty Ltd v Wallace & Anor [2010] QLAC 0004 |
PARTIES: | Anson Holdings Pty Ltd (appellant) v. Ian Earl Wallace (first respondent) and Chief Executive, Department of Environment and Resource Management (second respondent) |
FILE NO: | LAC002-09 |
DIVISION: | Land Appeal Court of Queensland |
PROCEEDING: | Costs of appeal to the Land Appeal Court |
ORIGINATING COURT: | Land Court of Queensland |
DELIVERED ON: | 30 July 2010 |
DELIVERED AT: | Townsville |
THE COURT: | Cullinane J Mrs CAC MacDonald, President of the Land Court Mr PA Smith, Member of the Land Court |
ORDER: | The appellant is to pay the first respondent’s costs of and incidental to the appeal. |
CATCHWORDS: | Costs – Appeal – Mining – ss. 34 and 82(1) of the Land Court Act 2000 – Judicial discretion not bound by any presumptive rule or principle – rules and principles to be balanced – consideration of the merits of the case – consideration of the conduct of the parties. |
APPEARANCES: | Written submissions |
SOLICITORS: | Preston Law for the first respondent |
- [1]On 22 March 2010, this Court handed down its decision dismissing an appeal by Anson Holdings Pty Ltd (the appellant) against a decision of the Land Court that the appellant should pay 40% of the first respondent’s costs of proceedings before the Land Court. Those proceedings concerned an application by the first respondent, Ian Earl Wallace, for a mining lease, an associated standard environmental authority (Mining Lease) and draft environmental authority.[1] This Court ordered the appellant to pay the first respondent’s costs of and incidental to the appeal unless the appellant contended, within a specified time, that other orders ought to be made.
- [2]The appellant has submitted that there should be no order as to the costs of the appeal because -
- The appeal raised issues of considerable significance to landowners and others affected by or concerned about mining lease applications. In particular -
- the appeal decision clearly established that with the transfer of jurisdiction concerning mining lease applications from the Land and Resources Tribunal to the Land Court in September 2007 the rule that “parties bear their own costs” ended and costs are now in the discretion of the Land Court. Prior to the decision of the Land Appeal Court there was uncertainty and it was therefore not unreasonable for the appellant to seek clarification by way of the appeal.
- the appeal decision confirmed that grounds of objection based on formal defects may be judged as trivial and potentially expose the objector to cost orders unless it is shown they have resulted in prejudice.
- The Land Court and the Land Appeal Court have a longstanding approach recognizing the desirability of maintaining easy access to the Land Court in revenue appeals. This has been extended to water licences – Dawson v Chief Executive, Department of Natural Resources and Mines[2] That approach should be extended to mining applications because the grant of a mining lease can be at least as significant to a landowner’s property and rights as a water licence decision. On the basis of such an approach, the parties should bear their own costs.
- [3]The first respondent submitted that an order for costs in favour of the appellant was appropriate for the following reasons –
- The appeal was wholly unsuccessful;
- The appellant’s grounds of appeal were demonstrated to be unmeritorious;
- The first respondent had incurred significant costs in responding to the appeal including briefing counsel.
- [4]Section 34(1) of the Land Court Act 2000 (the Act) provides, so far as is relevant, that
"34. Costs
- (1)Subject to the provisions of this or another Act to the contrary, the Land Court may order costs for a proceeding in the court as it considers appropriate.
- (2)If the court does not make an order under subsection (1), each party to the proceeding must bear the party's own costs for the proceeding.
…"
Section 72(1) provides that s. 34 applies, with necessary changes, to the Land Appeal Court.
- [5]It has been held on many occasions that the discretion given to the Land Court by s. 34 of the Act is complete and that the discretion is not to be fettered by any preconceived rules or principles other than that the discretion is to be exercised judicially.[3]
- [6]There are decisions of the Land Court where the Court rejected an application for costs in water licence appeals under the Water Resources Act 1989, saying that it was desirable that access should be available to appellants under the Water Resources Act without fear of costs being awarded to either party except in special cases.[4] The water licence cases were decided by analogy with a line of authority dealing with revenue cases in the Land Court. For example, in Bowden v The Valuer-General[5], the Land Appeal Court said that, in exercising the discretion under s. 34, one relevant consideration to be taken into account is ease of access to the reviewing tribunal -
"Easy access to the Land Court to air grievances and have valuations reviewed is, as we have already stressed, most desirable in revenue cases, and such access should be available without fear of costs being awarded to either party except in special cases."
- [7]The authorities concerning the desirability of maintaining easy access to the Court in revenue cases were considered more recently by the Land Appeal Court in PT Limited and Westfield Management Limited v The Department of Natural Resources and Mines[6]. The Land Appeal Court emphasised that where the Land Court is given a discretion to order the payment of costs, it should not be bound by any presumptive rule or principle, although the Court was not precluded from resorting to settled practice.[7] The discretion is complete but must be exercised judicially. The Court recognized that there may be any number of factors which a court vested with general jurisdiction to award costs might entertain - one such factor is the outcome of the litigation; another might be the overall purpose of the legislation.[8] The Court said that it is entirely in accordance with the proper exercise of the discretion to award costs to give effect to the matters expressed in Bowden, but those observations should not be read as imposing a gloss on the legislation mandating when the discretion ought be exercised or not exercised.[9] Ordinarily costs are not awarded to punish the unsuccessful parties. Costs are intended to compensate the successful party against the expense which he or she has incurred by reason of the legal proceedings.[10]
- [8]We respectfully agree with the observations in PT Limited and Westfield Management Limited v Department of Natural Resources and Mines. We do not consider therefore that this Court should recognize that there is a settled rule that easy access be available to the Land Court in mining lease applications by way of costs not being awarded against either party other than in special cases. Rather each case should be considered on its merits.
- [9]When exercising the discretion under s. 34(1) with respect to mining lease applications, it is legitimate for the Court to take into account the fact that the landholder who objects to the grant of a mining lease is exercising a statutory right to object, in circumstances where the grant of a mining lease could lead to an unwelcome intrusion on to the landowner’s property. Clearly, landholders who face having their way of life and operations on their land changed, sometimes dramatically, through mining activities in many respects beyond their control, should not be discouraged from pursuing proper concerns in an appropriate manner before both this Court and the Land Court. Similarly the conduct of the miner in the objection and appeal process is relevant.
- [10]The respondent’s success in the appeal proceedings is to be balanced against those factors. While the rule that costs follow the event is not automatically applied in this jurisdiction, that rule is one which is deeply embedded in our law[11] and that is a factor to be taken into account when exercising our discretion under s. 34(1).
- [11]Weighing all these factors, we consider that this Court’s indicative order that the appellant should pay the first respondent’s costs of and incidental to the appeal should stand. It was the appellant’s conduct of the proceedings in the Land Court which led the Land Court to order the appellant to pay 40% of the first respondent’s costs of the proceedings before the Land Court. That order was the subject of the appeal to this Court and it is the costs of that appeal that are now in issue. We therefore affirm the order made on 22 March 2010 that the appellant should pay the first respondent’s costs of and incidental to the appeal.
ORDER
The appellant is to pay the first respondent’s costs of and incidental to the appeal.
CULLINANE J
CAC MacDONALD
PRESIDENT OF THE LAND COURT
PA SMITH
MEMBER OF THE LAND COURT
Footnotes
[1] Wallace v Anson Holdings Pty Ltd [2009] QLC 0107.
[2] (2002) QLC 82.
[3] See, for example, BHP Queensland Coal Investments Pty Ltd v Cherwell Creek Coal Pty Ltd No. 2 [2009] QLAC 0008; Anson Holdings Pty Ltd v Wallace [2010] QLAC 0002.
[4] Emmerson v Chief Executive, Primary Industries Corporation (unreported, Land Court, 22 March 1996); Fitzgerald v Chief Executive, Primary Industries Corporation (unreported) 31 March 1994; Gray v Chief Executive, Department of Natural Resources, (unreported, Land Court 19 September 1997). The approach was doubted, but followed in Leake v Chief Executive, Department of Natural Resources, (1996) 16 QLCR 485 at 534. Compare Dawson v Chief Executive, Department of Natural Resources and Mines (2002) QLC 82 where a limited order for costs was made.
[5](1980-81) 7 QLCR 138 at 147.
[6] (2007) 28 QLCR 295.
[7] At [20], [21].
[8] At [22].
[9] At [23].
[10] At [25].
[11] Barns v Director General, Department of Transport (1997) 18 QLCR 133 at 135.