LAND APPEAL COURT OF QUEENSLAND

*      This is an amended decision and replaces the original decision of 5 September 2011

Background

1. [1]
   THE COURT:  This is a decision in respect of an application brought by the respondents, who for convenience shall hereafter be referred to as the Burtenshaws, against the appellant Mr Dunn seeking an order that Mr Dunn should pay the costs both in respect of the initial decision of the Land Court delivered on 13 April 2010 (the original decision) and the hearing before this Court which occurred in Cairns on 14 September 2010. 
2. [2]
   The original decision resulted in a recommendation being made to the Honourable the Minister for Natural Resources, Mines and Energy and Minister for Trade to grant ML 20541 and ML 20542 on land described as Lot 43 on SP 106048 and Lot 219 on AP 2662, the property otherwise being described as Coolgarra Station located at Mt Garnet within the Mareeba Mining District.
3. [3]
   The Burtenshaws are the owners of Coolgarra Station.
4. [4]
   Mr Dunn had appealed against the recommendation of the Land Court. 
5. [5]
   Although it was not entirely clear on the material filed, it seemed that the appeal was brought in reliance upon s. 64 of the Land Court Act 2000.
6. [6]
   Neither party was represented by counsel or solicitors at the hearing, save that the statutory party, Chief Executive, Department of Environment and Resource Management, was represented by Mr Kwan, a solicitor.  No orders are sought by or against the statutory party.
7. [7]
   Notwithstanding that, the Burtenshaws appeared represented by Mrs Burtenshaw.  She had earlier in accordance with orders made by this Court filed submissions which were clearly identified as having been prepared by Counsel.
8. [8]
   In the ultimate decision of this Court, those submissions were accepted.  The thrust of the submissions was to the effect that the "decision" appealed against being the recommendation made pursuant to s. 269 of the Mineral Resources Act 1989 was, in fact and at law, not a decision of the sort contemplated by s 64 of the Land Court Act. 
9. [9]
   Section 64 provides as follows: 

"64  Right of appeal to Land Appeal Court

A party to a proceeding in the Land Court may appeal to the Land Appeal Court against all or part of the decision of the Land Court.

It is unnecessary to revisit the terms of the decision save to observe that the Burtenshaws were successful, this Court having found that it had no jurisdiction to deal with the appeal, the recommendation of the learned Land Court Member below being an administrative step consequent upon a statutorily prescribed inquiry conducted by the Land Court Member.

10. [10]
    It is from the dismissal of that appeal that the Burtenshaws now make application for costs.
11. [11]
    It is appropriate to recite what is said by the Burtenshaws in their application for costs. 
12. [12]
    They say "The Land Court agreed to send the appeal to the Land Appeals (sic) Court, Despite Legal information the issue was an administrative process and not a judicial one, As was pointed out when the appeal was dismissed.  These hearings have cost almost $100,000 for our family and Mr Dunn has minimal costs incurred in his vexatious and untruthful attacks on our family.  We request costs be made against Mr Dunn in the first hearing and the Court and the Court consider reimbursing our legal fees for Counsel and Solicitor in the Appeals Court".
13. [13]
    The Burtenshaws filed submissions in this Court on 11 March 2011 which did not really add any argument to their application but merely exhibited invoices received from their barrister Ms Skennar of counsel and the various solicitors namely Rees R and Sydney Jones and Hopgood Ganim Lawyers.  It is not possible to unravel all of the costs in the invoices from the solicitors and it is clear that many if not most of the costs identified in the solicitors invoices relate to the hearing in the Court below. 
14. [14]
    Ms Skennar for her part appears to have had some telephone conferences with Mrs Burtenshaw and then to have prepared submissions for which she rendered an account in the total sum of $2,752.75 (inclusive of GST). 
15. [15]
    Mr Dunn also filed submissions on 8 April 2011. 
16. [16]
    Sadly the submissions made by Mr Dunn do not, in any sensible way, address the application for the cost order sought against him.  The submissions contain rambling allegations and expressions of dissatisfaction both with individual Members of the Land Court and decisions earlier made by them and the process by which mining applications are considered.  They were of no assistance at all with respect to the question of costs.
17. [17]
    As observed in the decision of this Court delivered in October 2010, the point raised in submissions by Counsel for the Burtenshaws contain matters in respect of which this Court was unable to find any previous consideration under the existing legislation.  That is to say it was an entirely novel and unconsidered point of law.
18. [18]
    The powers of this Court with respect to costs derive from the combined effect of s.34 which deals generally with costs in the Land Court and s. 72 of the Land Court Act 2000 which has the effect that s. 34 applies, with necessary changes, to proceedings before this Court.
19. [19]
    It is trite to observe that the power to award costs against an unsuccessful party is entirely discretionary. 
20. [20]
    In the decision below this Court at paragraph [7] identified all of the documentation which had been filed and the date upon which it is filed.
21. [21]
    It is noteworthy that the respondents' submissions were filed on 13 August 2010 together with supplementary submissions filed on 1 September 2010. 
22. [22]
    That is to say that from the beginning of September Mr Dunn was on notice that the respondents contended that the appeal to this Court was a futility.  That was a period of two weeks prior to the hearing of this matter during which time Mr Dunn had, in this Court's opinion, ample opportunity to at least review the law and to consider the submissions prepared for and filed by the respondents.  Those submissions were very detailed and were of substantial assistance to this Court in reaching the decision it did. 
23. [23]
    There is no doubt that Mr Dunn who is a frequent litigant before the Land Court adopts a public interest stance and contends that his only interest is in the protection of the environment and the community.  He is particularly concerned about the impacts on the environment of various processes adopted by miners. 
24. [24]
    Be that as it may, he is not entitled to embark upon litigation which is doomed to failure and which will inevitably put other parties to substantial costs without risk of being liable for costs. 
25. [25]
    As observed in Oshlack v Richmond River Council (1998) 193 CLR 72 the Courts have, in the past:

“emphasised … that litigants espousing the public interest are thereby not granted an immunity from costs or a ‘free kick’ in litigation.”

26. [26]
    In McClure v City of Stirling [No 3] 170 LGERA 138 Beech J in the Supreme Court of Western Australia observed:

“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 their costs in the event that claims made against them prove unfounded:  Australian Conservation Foundation v Forestry Commission (Tas) (1988) 76 LGRA 381 at 385-386; South-West Forests Defence Foundation Inc v Lands and Forest Commission (No 2) (1995) 86 LGERA 382, at 384.”

27. [27]
    We do not think that those observations referring as they do to a “body” preclude application to an individual. 
28. [28]
    Leaving aside for the moment the issue of whether this litigation can properly be construed as being in the public interest, the further observations of Beech J in McClure’s case are informative.  His Honour observed (at p. 145):

“The High Court decision in Oshlack v Richmond River Council did not espouse a generally different approach to costs in ‘public interest’ litigation.  The decision turned on its particular circumstances.  The effect of that decision was explained by the Full Court in Buddhist Society of Western Australia Inc v Shire of Serpentine-Jarrahdale [1999] WASCA 55 as follows:

‘The matter was considered by the High Court in the context of legislation providing an unfettered discretion to the court in relation to an award of costs in Oshlack v Richmond River Council (1998) 72 ALJR 578.  The Court reaffirmed that the ordinary rule would always be that a successful defendant should be awarded its costs, but in the case before the court, the majority concluded that there were special circumstances derived from the public interest character of the litigation sufficient to warrant the trial Judge exercising his discretion to decline to award costs to the successful party.  At 588 Gaudron and Gummow JJ were persuaded to that view by the fact that the unsuccessful party pursued the litigation to secure the observance of legislation enacted for the benefit of the public or a section of the public, for the preservation of endangered fauna, in circumstances where there was an identifiable public interest in the outcome of the litigation and no identifiable private interest in its success.  In addition a significant factor was said to be the identification and resolution of important issues concerning the interpretation and future administration of the relevant statutory provisions.  Kirby J expressed a similar view [9].’

Further, as the Court of Appeal explained in Real Estate and Business Agents Supervisory Board v Espanol Holdings Pty Ltd (in liq) (No 2) [2008] WASCA 109 (S) at [3], Mr Oshlack had proceeded under s 123 of the Environmental Planning and Assessment Act 1979 (WA) which provided that any person might bring proceedings for an order to remedy or restrain breaches of that Act.  That statutory conferral of standing on a member of the public was an important factor in the decision of the majority in Oshlack.”

29. [29]
    His Honour also observed:

“That a proceeding was brought otherwise than for the personal or financial gain of the plaintiff, and in that sense in the public interest, does not detract from the general proposition that ordinarily costs follow the event and that the primary factor in deciding on the award of costs is the outcome of the litigation:  Ruddock v Vadarlis at [18].”

30. [30]
    Having regard to the quote above the actions of Mr Dunn in bringing this appeal might be thought to be almost entirely in the public interest notwithstanding that he was clearly also concerned about protecting his amenity. 
31. [31]
    The Australian Law Reform Commission considered such issues in its Report “Costs Shifting – Who pays for Litigation (Report No. 75).  In that Report the Australian Law Reform Commission recommended, as recommendation 45, that statutory provision be made for public interest costs orders by Federal Courts and Tribunals.  It sought to define public interest by setting out conditions for the making of such orders that the Court or Tribunal be satisfied that:

1. The proceedings will determine, enforce or clarify an important right or obligation affecting the community or a significant sector of the community;

2. The proceedings will affect the development of the law generally and may reduce the need for further litigation;

3. The proceedings otherwise have the character of public interest or test case proceedings.

Notwithstanding the reference to Federal Courts or Tribunals it seems that the observations above are similarly apposite in the present case.

32. [32]
    While the respondents in these proceedings contend that Mr Dunn is devoutly committed to being a nuisance in respect of all applications for mining leases in the area in which he lives, there is something in his approach which bespeaks an interest of behalf of the public. 
33. [33]
    While the Court has some reservations about the conduct of Mr Dunn it seems that, in the present case, given that the very point which effectively “unravelled” his appeal to this Court was one which had not previously been tested and one in respect of which there was no guiding decision he ought be given the benefit of the doubt with respect to the prospect of a costs order being made against him. 
34. [34]
    At the same time, of course, it must be recognised that Mr Dunn was apprised of the arguments advanced by the respondent at least two weeks from the hearing date and had an opportunity to abandon his appeal.  He did not do so.  In the circumstances, in an attempt to do justice between the parties but equally to recognise the apparently novel aspect of the point taken by the respondent, it seems appropriate to order that the respondent ought be entitled to the benefit of a costs order restricted only to the preparation of the submissions which raised the point of law upon which the respondents were ultimately successful.
35. [35]
    Those costs appear to be reflected in the invoice delivered by Darlene Skennar of 1 September 2010 which identifies total fees payable to her for the preparation of the submissions of $2,752.75.
36. [36]
    Accordingly the order of the Court is that an order for costs be made in favour of the respondents limited to the sum of $2,752.75. 
37. [37]
    In accordance with s. 34(3) of the Land Court Act 2000 this order is made an Order of the Supreme Court of Queensland and may be enforced in the Supreme Court.

THE HONOURABLE JUSTICE JONES AO

HIS HONOUR WL COCHRANE

MEMBER OF THE LAND COURT

HIS HONOUR WA ISDALE

MEMBER OF THE LAND COURT