Legend International Holdings Inc v Awaditijia (No. 4)
[2016] QLC 23
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- Unreported Judgment
- Legend International Holdings Inc v Awaditijia (No. 4)[2016] QLC 23
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Legend International Holdings Inc v Awaditijia (No. 4)[2016] QLC 23
Legend International Holdings Inc v Awaditijia (No. 4)[2016] QLC 23
LAND COURT OF QUEENSLAND
CITATION: | Legend International Holdings Inc v Taylor Aly Awaditijia & Anor (No. 4) [2016] QLC 23 |
PARTIES: | Legend International Holdings Inc (applicant) |
| v |
| James W Taylor Aly Awaditijia (respondent) and Chief Executive, Department of Environment and Heritage Protection (statutory party) |
FILE NO: | EPA081-13 |
DIVISION: | General Division |
MATTER: | Application for costs |
DELIVERED ON: | 23 March 2016 |
DELIVERED AT: | Brisbane |
HEARD ON: | Written submissions: 16 November 2015, 30 November 2015 and 17 December 2015 |
PRESIDENT: | CAC Macdonald |
ORDER: | The application for costs is refused. |
CATCHWORDS: | COSTS – mining lease application and objection to associated environmental authority – whether Land Court has jurisdiction to award costs in an administrative enquiry under s 34 Land Court Act 2000 or via any inherent jurisdiction – Land Court’s procedural powers considered with respect to costs – held no jurisdiction to award costs in administrative matters Civil Proceedings Act 2011 Environmental Protection Act 1994 Land Court Act 2000 Mineral Resources Act 1989 State Development and Public Works Organisation and Other Legislation Amendment Act 2015 Uniform Civil Procedure Rules 1999 Anson Holdings Pty Ltd v Wallace (2010) 31 QLCR 74 Australian Health Insurance Association Ltd v Esso Australia Pty Ltd (1993) 116 ALR 253 BHP Billiton Mitsui Coal Pty Ltd v Isdale [2015] QSC 107 Cox v Commissioner of Water Resources (1992-93) 14 QLCR 304 Dunn v Burtenshaw (2010) 31 QLCR 156 Gallo v Department of Environment and Resources Management (No. 2) [2014] QLAC 11 Re His Worship Mr Calder; ex parte Gardner (1999) 20 WAR 525 Re Warden French’ ex parte Serpentine-Jarrahdale Ratepayers and Residents Association (1994) 11 WAR 315 Wyatt v Albert Shire Council [1987] 1 Qd R 486 Yalgan Investments Pty Ltd v Albert Shire Council (1997) 17 QLCR 401 |
SOLICITORS: | Mr T Chay, Merman Legal for the applicant Mr C Hardie, JustUs Lawyers, for the respondent |
Background
- [1]Legend International Holdings Inc. (the applicant) applied for eight mining leases within the Mount Isa region for the purposes of extracting and beneficiating phosphate, together with associated activities.
- [2]As part of this process the applicant also applied for an environmental authority (EA) for the project on 4 December 2009. On 9 January 2013 the Chief Executive, Department of Environment and Heritage Protection (EHP) issued a draft EA.
- [3]On 18 January 2013 Mr JW Taylor (the respondent) sent a letter to the EHP Minister objecting to the issue of the draft EA for the mining project. On 26 February 2013 the respondent’s objection was referred to the Land Court for assessment pursuant to s 219 Environmental Protection Act 1994 (EPA)[1].
- [4]As required by s 223 EPA the Land Court must consider the application and objection and certain other associated matters. Pursuant to s 222 EPA the court must make a recommendation to the EHP Minister that the application be granted subject to the draft EA, or with different conditions, or the application be refused.
- [5]This matter has come before the Court on many occasions and I have published several interlocutory decisions prior to this decision. The matter was finally set down for hearing for four days from 19 October 2015.
- [6]On 19 October 2015 the solicitor for the respondent indicated that the respondent would not contest the EA application further, on the basis that two amendments would be made to the draft EA by the statutory party. The applicant and statutory party consented to the proposed amendments. The respondent reserved his position as to costs.
- [7]On 22 October 2015 I recommended to the Honourable Minister administering the EPA that the application be granted in terms of the amended draft EA.
- [8]The respondent has applied for an order that the applicant pay his costs and disbursements, on an indemnity basis, of and incidental to the determination of the objection. In the alternative the respondent seeks those costs on the standard basis.[2] The applicant has not applied for a costs order against the respondent[3] and there is no application for costs made against the statutory party.
Jurisdiction to award costs
Land Court Act 2000
- [9]Section 34 of the Land Court Act 2000 (LCA) provides 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.”
- [10]
“As there is no provision in the Environmental Protection Act dealing with an award of costs in relation to the hearing of objections to an environmental authority application and a draft environmental authority, the appellant has concluded that no costs may be awarded. We do not consider that conclusion to be correct. Section 34 of the Land Court Act applies to all proceedings in the Land Court, subject to the provisions of any other Act. There is no contrary statutory provision and, accordingly, s 34 applies to the hearing related to the environmental objections.”
- [11]On 13 June 2014 and 15 August 2014 I followed the Land Appeal Court decision in Anson Holdings and held that s 34 LCA provided jurisdiction to award costs in relation to two interlocutory applications in the current matter.
- [12]The Land Court’s jurisdiction to award costs in matters of this nature, that is mining and environmental applications and objections referred to the Court by the chief executive of relevant departments under the MRA and EPA, has been put in question by the decisions of the Supreme Court (Philip McMurdo J) in BHP Billiton Mitsui Coal Pty Ltd v Isdale[5] delivered on 5 May 2015 and the Land Appeal Court in Dunn v Burtenshaw[6]. Such matters are described as “referral matters” in this decision. The doubt has arisen because s 34(1) provides that the Land Court may order costs for “a proceeding in the court”. The issue is whether referral matters are proceedings within the meaning of that word as used in s 34.
- [13]I have considered that issue in some detail in my decision in Adani Mining Pty Ltd v Land Services of Coast and Country Inc & Ors (No. 2)[7] where, for the reasons set out therein, I came to the conclusion that s 34 LCA does not provide jurisdiction for the Land Court to award costs in referral matters. It is unnecessary to repeat that reasoning here in full, but in essence I held that the Land Court’s function in dealing with referral matters is administrative in nature in that the Court is required to conduct an enquiry and make a recommendation to the Minister or administering authority. The Court does not finally determine the rights of the mining lease applicant. Consequently, I held that the enquiry is not a proceeding within the meaning of that term as used in s 34 LCA, and the Land Court does not have jurisdiction to award costs, under s 34, of an administrative enquiry[8].
Does the Land Court otherwise have jurisdiction to award costs in this administrative enquiry?
- [14]
- [15]
“Undoubtedly an inferior court has power to regulate its own procedure, even though that power is not as extensive as is held by a superior court ….. But when the jurisdiction of a court is limited by statute its procedures have to be found within the statute or rules made under a rule-making power created by statute. In other words, such an inferior court does not have the power to create its own procedures.”
- [16]The Land Appeal Court held in Cox that the Land Court did not have an inherent power to order discovery and there was at that time no specific power provided to the Court in that regard.
- [17]
“The source of a statutory inferior court’s jurisdiction is statute. If there is no statutory provision, which either expressly or by necessary intendment, gives the court jurisdiction, then it will not possess it.”
- [18]Section 5(1) of the LCA states:
“The Land Court has the jurisdiction given to it under this Act or another Act.”
- [19]As the Land Court is an inferior court created by statute, I consider that the Court has no jurisdiction to award costs in a matter unless that jurisdiction is given to it by statute. Section 34 of the LCA gives the Land Court statutory jurisdiction or authority to award costs but s 34 only applies to proceedings and this administrative enquiry is not a proceeding.
- [20]As the jurisdiction to award costs is entirely a creature of statute and the Land Court only has jurisdiction given to it by statute, there is no inherent authority in the Land Court to award costs. With respect to administrative enquiries such as this, there is no jurisdiction or authority to award costs provided to the Land Court by relevant statutes such as the LCA, MRA or EPA[15].
- [21]Section 7A(1) LCA provides the Land Court with all the powers of the Supreme Court when exercising jurisdiction conferred by this Act or another Act,. However this section does not grant jurisdiction to the Land Court to order costs. In Australian Health Insurance Association Ltd v Esso Australia Pty Ltd[16], Black CJ said:
“There is a distinction between the conferral of jurisdiction and the grant of a power. Jurisdiction in this context means the authority a court has to decide a matter and power goes to the exercise of that authority. Without authority there can be no valid exercise of power … .”
- [22]Section 7A(1) confers the powers of the Supreme Court onto the Land Court when it is exercising its jurisdiction under the LCA or other Act. Section 7A(1) of itself does not create a jurisdiction or authority to award costs.
- [23]The respondent noted that the State Development and Public Works Organisation and Other Legislation Amendment Act 2015 came into force on 22 July 2015 to deal with the uncertainty surrounding the LCA and the LCR and their applicability to referral matters.
- [24]In particular the respondent noted the changes to s 21(1)(b) LCA whereby rules can now be made that are necessary or convenient, including for a function or power conferred on the Court by the LCA or another Act. In addition, a new s 21(3) was inserted to authorize the making of rules for the procedures when the Court is exercising an administrative function including “(a) rules providing for costs in relation to the exercise or performance of an administrative function”. The respondent noted that although to date no such rules have been made, s 22 LCA provides authority for the President to issue directions about the procedures of the court. On 27 July 2015 I issued Practice Direction 1 of 2015 which provides that the procedures to be applied to referral matters are the same as those outlined in the Land Court Rules and when not covered by the LCR, the Uniform Civil Procedure Rules 1999 (UCPR) will apply. The respondent submitted that, flowing from s 21(3)(a), rules providing for procedures include rules providing for costs and, therefore, costs are procedural in nature. As s 22(2) provides power for the President to issue directions about the procedures of the Court, Practice Direction 1 of 2015 incorporated the UCPR costs provisions under Chapter 17A into the procedures applicable to administrative enquiries such as this.
- [25]I do not accept that submission. Sections 21(2) and s 21(3) LCA do not provide or have the effect that costs are procedural in nature. Rather, the effect of s 21(3) is that it operates as a statutory grant of power for rules to be made to provide for costs in relation to the exercise or performance by the Court of an administrative function.
- [26]As identified in the applicant’s submission, the Supreme Court of Queensland is a superior court and has unlimited jurisdiction in law and equity, subject only to the Commonwealth Constitution[17]. The District Court and Magistrates Court (and also the Supreme Court on a statutory basis) obtain their jurisdiction to award costs in proceedings before those Courts via ss 3, 5 and 15 Civil Proceedings Act 2011. These Courts do not obtain their jurisdiction to award costs from Chapter 17A UCPR. The UCPR merely provides rules to be followed when exercising the costs jurisdiction provided by the Civil Proceedings Act 2011.
- [27]Similarly with the Land Court, the importation of the procedures in the UCPR, where LCR procedures do not apply to referred matters (via Practice Direction 1 of 2015), does not create jurisdiction to award costs in these matters. If no costs jurisdiction exists, one cannot be created by the Land Court via its powers to make directions about procedures granted in s 22 LCA. The Land Court cannot create or give to itself jurisdiction where jurisdiction has not been expressly or implicitly provided by statute.
- [28]This conclusion is consistent with the terms of s 21(3)(a) LCA. The subsection clearly contemplates that, if costs are to be awarded by the Court when exercising an administrative function, it will be necessary that rules be made to provide for costs. Such rules cannot be made by the Land Court but are to be made by the Governor-in-Council, with the concurrence of the Chief Justice and the President (s 21(1) LCA).
- [29]On 19 October 2015 I ordered that:
- Any application for costs, including any submissions in support, be filed and served by 4:00pm on Monday, 16 November 2015.
- Any replies to any application for costs be filed and served by 4:00pm on Monday, 30 November 2015.
The respondent submits, in the alternative, that these orders constitute a direction of the type referred to in s 22(3) LCA, and the Land Court has jurisdiction to hear and determine the question of costs in accordance with the direction it has given[18].
- [30]As explained above, the power to issue directions with respect to a particular matter before the Land Court does not provide the Land Court with the jurisdiction or authority to award costs – such authority can only come from a specific statutory provision in the LCA or other Act or in any rules made pursuant to s 21(3)(a) LCA. .
- [31]As I have no jurisdiction to award costs in this matter, there is no need to assess the relative merits to determine whether the respondent should have his costs.
ORDER
The application for costs is refused.
CAC MacDONALD
PRESIDENT OF THE LAND COURT
Footnotes
[1] The Environmental Protection Act 1994 current as at 14 March 2013 is the relevant version of the Act for this matter.
[2] Respondent’s submissions on costs filed 16 November 2015 at [1], [2].
[3] Applicant’s submission on costs filed 30 November 2015 at [29].
[4] (2010) 31 QLCR 74 at [21].
[5] [2015] QSC 107.
[6] (2010) 31 QLCR 156.
[7] [2016] QLC 22.
[8] At [17] – [19].
[9] [1987] 1 Qd R 486 at 488.
[10] (1997) 17 QLCR 401 at 406.
[11] (1992-93) 14 QLCR 304 at 309.
[12] At 322 (citation omitted).
[13] [2014] QLAC 11 at [121].
[14] At [123].
[15] Sections 268(8) and (9) MRA provide limited jurisdiction to award costs in mining lease applications before the Land Court. Neither section is applicable to this request by an objector seeking costs where the applicant has not withdrawn its application for a mining lease.
[16] (1993) 116 ALR 253 at 263.
[17] Section 58 Constitution of Queensland Act 2001.
[18] Respondent’s costs submission at [25].