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Cement Australia (Exploration) Pty Ltd v East End Mine Action Group Inc (No 5)[2021] QLC 32

Cement Australia (Exploration) Pty Ltd v East End Mine Action Group Inc (No 5)[2021] QLC 32

LAND COURT OF QUEENSLAND

CITATION:

Cement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group Inc & Anor (No 5) [2021] QLC 32

PARTIES:

Cement Australia (Exploration) Pty Ltd

ACN 009 800 355

(applicant)

Cement Australia (Queensland) Pty Ltd

ACN 009 658 520

(applicant)

v

East End Mine Action Group Inc

(active objector)

Jim Elliott, Maurice James Elliott, Frank Lenz, Anne Patricia Kelly, Robert Geaney, Ross Rideout, Paula Rideout, Theresa May Derrington, Tom Chapman, Lynne Chapman, Philip Mann, Claire Mann, Brent Lashford, Gladstone Regional Council

(non-active objectors)

and

Chief Executive, Department of Environment and Science

(statutory party)

FILE NOs:

MRA241-18 (ML 80156)

EPA242-18 (EPML 000658113)

DIVISION:

General Division

PROCEEDING:

Costs of reopening an application in the Land Court

DELIVERED ON:

20 September 2021

DELIVERED AT:

Brisbane

HEARD ON:

Submissions closed 13 August 2021

HEARD AT:

Heard on the papers

MEMBER:

JR McNamara

ORDERS:

  1. 1.The respondent must pay the applicant’s costs of the re-opening application on the standard basis.
  2. 2.Such costs are to be agreed between the parties or failing agreement, to be assessed.

CATCHWORDS:

ENERGY AND RESOURCES – MINERALS – COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – Queensland – whether costs should be awarded after the re-opening of an application – where the principles for awarding costs was considered – whether the Land Court must determine costs in the ‘public interest’ – where the respondent failed in their application to re-open – where the respondent must pay the applicant’s costs of the re-opening application on the standard basis as agreed between the parties or failing agreement, to be assessed

Land Court Act 2000, as at 24 July 2017 s 34, s 52B(1)(j), s 52C(3)

Adani Mining Pty Ltd v Land Services of Coast and Country Inc & Ors (No 2) [2016] QLC 22, cited

Anson Holdings Pty Ltd v Wallace & Anor (2010) 31 QLCR 74; [2010] QLAC 2; (2010) 31 QLCR 74, considered

Cement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group Inc & Anor (No 4) [2021] QLC 22, cited

Cement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group Inc & Anor (No 3) [2021] QLC 15, cited

Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No 25) [2020] QLC 22, cited

Deimel v Phelps [2020] QLC 2, considered

Dunn v Burtenshaw & Ors (2011) 32 QLCR 270; [2011] QLAC 5, applied

ERO Georgetown Gold Operations Pty Ltd v Henry (No 2) (2016) 37 QLCR 186; [2016] QLAC 3, considered

Goldhounds Mining and Exploration Pty Ltd v Department of Natural Resources, Mines and Energy (No 2) [2019] QLC 16, applied

Hegira Limited v Department of Natural Resources and Water [2006] QLC 79, applied

Legend International Holdings Inc. v Taylor Aly Awaditjia & Anor (No 2) [2014] QLC 24, cited

Mayfair Property Holdings Pty Ltd v Southland Packers Pty Ltd (No 3) [2016] QSC 150, cited

Mentech Resources Pty Ltd v MCG Resources Pty Ltd (In Liq) & Ors (No 2) (2012) 33 QLCR 43; [2012] QLAC 2, cited

Moreton Bay Regional Council v Mekpine Pty Ltd & Anor (No 2) (2014) 35 QLCR 273; [2014] QLAC 5, cited

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11, considered

President’s Club Ltd v Palmer Coolum Resort Pty Ltd (No 2) [2020] QSC 11, cited

PT Limited and Westfield Management Limited v Department of Natural Resources and Mines (2007) 28 QLCR; [2007] QLAC 77, cited

Symbolic Resources Pty Ltd v Kingham & Ors (2020) 5 QR 155; [2020] QSC 193, considered

Xstrata Coal Queensland Pty Ltd & Ors v Friends of the Earth - Brisbane Co-Op Ltd (No. 2) (2012) 33 QCLR 409; [2012] QLC 13, applied

APPEARANCES:

Not applicable

Background

  1. [1]
    The decision of the Land Court in Cement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group Inc & Anor (No 4)[1] was delivered on 30 June 2021. Orders provided that:
  • within 28 days of the publication of those reasons any application for a costs order together with supporting material must be filed and served on the party against whom costs are sought;
  • within 14 days of the service of any application for costs the party against whom the costs order is sought must file a reply supported by the material described; and
  • unless the parties otherwise requested in writing, any costs application would be determined on the filed material without a hearing, not within 14 days of the filing of the material in reply.
  1. [2]
    Cement Australia (applicants) brought an application for costs against the active objector East End Mine Action Group Inc (EEMAG). In reply, an affidavit of Mr Alec Lucke, Research and Communications Officer and lay advocate for EEMAG, was filed and no request for a hearing was made. The relevant closing date was 30 August 2021.
  1. [3]
    The applicants seek costs in respect of an application brought by EEMAG after the hearing had concluded, to reopen the hearing (the re-opening application). Costs of the hearing itself were not sought.

Applicable legislation

  1. [4]
    The applicants’ submissions identify that subject to any provision to the contrary, the Court may order costs for a proceeding as it considers appropriate under s 34 of the Land Court Act 2000 (Qld) as at 24 July 2017 (2017 LCA). Further, s 52B(1)(j) of the 2017 LCA makes it clear that s 34 applies as if the performance of a function under a recommendatory provision were a proceeding. No contrary intention exists under the Environmental Protection Act 1994 (Qld) as at 14 March 2013, and while the Mineral Resources Act 1989 (Qld) permits the Court to award costs in specific circumstances,[2] neither apply in this matter and there is therefore no inconsistency. Accordingly, s 34 is the operative provision.

Costs principles

  1. [5]
    The established principles referred to by the applicants are that the discretion of the Court is complete and unfettered, but is to be exercised judicially;[3] and while not determinative, the outcome of a proceeding is a significant factor influencing the discretion.[4] The applicant cites ERO Georgetown Gold Operations Pty Ltd v Henry (No 2)[5] as follows:

“[24] While s 34 does not accord pre-eminence to the rule that the costs follow the event, in contrast to r 681 of the UCPR, equally, it does not create a general rule that parties bear their own costs. When an application is made for costs under it, the Court is required to determine what order (if any) is appropriate. In carrying out that task, the Court is to have regard to established principles relating to the exercise of such a discretion, to the extent they are relevant to the facts of the case before the Court. One such principle is the “rule often followed” that costs follow the event. The passage quoted from the judgment of McHugh J in Latoudis is also relevant. It follows that a party’s success will often be a significant, though not necessarily decisive, factor in its application for an order for costs.

[25] The appellant relied on a statement of Callinan J in Re JJT & Ors; ex parte Victoria Legal Aid about the effect of s 117 of the Family Law Act 1975 (Cth). The statement was relied upon in support of a submission that, under s 34 of the LC Act, “the ‘prima facie’ position is that each party bears its own costs of the proceeding, which involves an express departure from the approach to a general discretion to award costs that follow the event”. The statement of Callinan J was, relevantly, that “authorises a departure from what may be taken as the usual course in litigation, that costs follow the event, to provide that parties will (subject to certain provision of the Family Law Act) be required to bear their own costs”. His Honour’s statement reflects the structure of s 117, which gives primacy to the provision requiring each party to bear his or her own costs; and conditions the power of the Court to award costs on its opinion that there are circumstances which justify it in doing so. The statement is of no real assistance in determining the effect of s 34.”[6] (citations omitted)

  1. [6]
    In relation to the factors the Court might consider, the applicants refer to Anson Holdings Pty Ltd v Wallace & Anor,[7] where at [37] the LAC said:

“We accept that the appellant had a statutory right to object to the mining lease on the basis that the relevant statutory provisions had not been complied with. However that does not mean that someone in the position of the appellant is automatically exempt from any liability for the payment of costs. As discussed above, s. 34 of the Land Court Act gives the Court complete and full discretion as to whether to award costs. In exercising that discretion it is relevant, as the learned Member did, to take into account the fact that the grant of a mining lease can lead to an unwelcome intrusion on to the objector's property. But that is only one factor to be taken into account in the exercise of the discretion. Without attempting to be exhaustive or prescriptive, other factors that may be taken into account are the conduct of the objector in pursuing the objections including a consideration of the nature of the objections, whether there was any reasonable prospect of success in pursuing those objections, the degree of prejudice likely to be suffered by the appellant if the right to object was not pursued, whether the appellant's conduct lead to an unnecessarily lengthy hearing and whether in general the objector has conducted the progress of the objections in a reasonable manner.”[8] (citations omitted)

  1. [7]
    The applicants note the criticism of Anson Holdings Pty Ltd v Wallace & Anor[9] in Adani Mining Pty Ltd v Land Services of Coast and Country Inc & Ors (No 2)[10] (Anson) however, they observe that at the time, s 52B(1)(j) of the 2017 LCA had not been enacted which otherwise made clear that recommendatory proceedings were subject to s 34.
  1. [8]
    I also note the observations of Kingham P in Deimel v Phelps[11] at [20]:

“There are indications in the Land Court Act and Rules that, despite this being a judicial tribunal, the less generous approach of the civil courts applies. Firstly, although there is a power to award costs, there is no mechanism to assess costs without accessing the provisions of the Uniform Civil Procedure Rules 1999. Nor does the Land Court Act or Rules provide any guidance about the factors to consider in awarding costs or the items that may be included.”[12]

  1. [9]
    While Mr Lucke does not challenge the power of the court to order costs he says that the “Mining Objection Hearings Practice Direction” reflects s 52C(3) of the current Land Court Act 2000 (Qld). The relevant paragraphs of the Land Court Practice Direction 4 of 2018 (amended 7 April 2020) (Practice Direction) are set out in the applicants’ submissions.[13] In particular, they cite [84] is as follows:

“In deciding whether to make a costs order, the Court will take into account the following matters –

  1. a)whether the application or an objection was made primarily for an improper purpose; and
  2. b)whether the application or an objection was frivolous or vexatious; and
  3. c)whether a party has introduced, or sought to introduce, new material at the hearing; and
  4. d)whether a party has defaulted in the Court’s procedural requirements; and
  5. e)whether the applicant for a mining claim, mining lease, or environmental authority did not give all the information reasonably required to assess the application; and
  6. f)whether the applicant or an objector abandoned or did not pursue their application or objection at the hearing; and
  7. g)any other relevant factor.”[14]
  1. [10]
    Mr Lucke in his affidavit introduces a “public interest” factor not found in the Practice Direction, in the provisions of either the 2017 LCA, or the current version of the LCA.[15] The only reference to “public interest” in the Practice Direction is in relation to the onus of proof where an objection raises a matter of public interest.[16] Mr Lucke acknowledges that there is “no specific reference to how costs for public interest matters should be addressed in the LCA, LCR or the Practice Direction” but goes on to list “Factors exercised at the Court’s Discretion”. Factors including the conduct of the party, the prospects of success, and reasonableness, are found in Anson at [37]. However, “whether the objector acted in the public interest” and “whether there was public interest in the issues and outcomes” are not. The authority for the public interest factors is not provided. The “Factors the Land Court considers when awarding costs” set out in Mr Lucke’s affidavit mirror the Practice Direction at paragraph [84], although overlooks [84](f) “any other relevant factor”.
  1. [11]
    In the Uniform Civil Procedure Rules 1999 (Qld) it is noted that although in some contexts the “public interest” may be a relevant consideration in exercising the discretionary power to order a party to pay another party’s costs of a proceeding, there are difficulties associated with the concept of “public interest litigation”.
  1. [12]
    The Land Court in Hegira Limited v Department of Natural Resources and Water[17] considered the importance of public interest decisions for costs at [8]-[9]:

“That a matter involves elements of public importance is not irrelevant to the issue of costs.

In my view, questions of degree are clearly involved in any consideration of the weight to be accorded to the issue of public interest or importance in the circumstances of an application for costs …”[18]

  1. [13]
    In Dunn v Burtenshaw & Ors[19] the Court noted Australian Law Reform Commission (ALRC) Report No 75 which recommended that statutory provision be made for public interest costs orders by Federal Courts and Tribunals. The ALRC sought to define public interest by setting out conditions for the making of such (public interest) costs orders. There, the ALRC considered at [31] that the Court or Tribunal must be satisfied that:
  1. 1.The proceedings will determine, enforce or clarify an important right or obligation affecting the community or a significant sector of the community.
  2. 2.The proceedings will affect the development of the law generally and may reduce the need for further litigation.
  3. 3.The proceedings otherwise have the character of public interest or test case proceedings.
  1. [14]
    The Court in Dunn v Burtenshaw & Ors[20] considered the observations of the ALRC apposite. The Court said that Mr Dunn’s action in bringing the appeal might be thought to be almost entirely in the public interest notwithstanding that he was clearly also concerned to protect his amenity. The Court observed however that Mr Dunn was not entitled to embark on litigation which was doomed to failure and which would inevitably put other parties to substantial costs, without risk of being liable for costs.
  1. [15]
    The decision of Dunn v Burtenshaw & Ors[21] was considered in Xstrata Coal Queensland Pty Ltd & Ors v Friends of the Earth - Brisbane Co-Op Ltd (No. 2)[22] where President MacDonald considered her discretion to award costs.[23] Her Honour considered whether a party had adopted a “public interest stance” in their application in the exercise of their discretion to proceed with the matter. The outcome of the proceeding would also be considered a “significant factor influencing the exercise of the discretion to award costs”.
  1. [16]
    As noted below at [20], EEMAG submitted in the re-opening application that the interests of “justice and public interest” arose.

The re-opening application

  1. [17]
    The General Application was made on 15 February 2021, heard on 23 March 2021,[24] and the decision was delivered on 29 March 2021 (the re-opening decision).[25] The application was dismissed.

The parties’ position on costs

  1. [18]
    The applicants say that costs of the re-opening application is appropriate for three reasons: that EEMAG acted unreasonably in progressing its objections by filing and prosecuting the re-opening application; that the re-opening application amounted to an attempt to introduce fresh material to the hearing; and that Cement Australia was wholly successful in defending the reopening application and is therefore a significant factor the court ought to take into consideration.
  1. [19]
    Mr Lucke argues, on the basis of Symbolic Resources Pty Ltd v Kingham & Ors (Symbolic Resources)[26] that the general application to re-open the hearing concerned a ground of objection not properly made. Accordingly, the application should “not have been accepted for consideration by the Court and EEMAG has no case to answer in relation to costs arising from the Form 12 Application.” The application, Mr Lucke says, was to re-open the hearing to hear “new evidence that related principally to the PEM” (Pacific Environment Model). Mr Lucke says that because he was constrained during the substantive hearing in pursuing lines of enquiry regarding the PEM, “the court should have dismissed Form 12 as having no legal basis.” He further states, “Yet the Court sanctioned two hearings with submissions in-between and now, based on the Court’s alleged misconstruction of the law, invites consideration of an adverse cost award.”[27]
  1. [20]
    The Supreme Court in Symbolic Resources confirmed that the Court cannot entertain evidence or hear submissions from an objector to a mining lease except as it relates to a ground raised in a duly lodged objection. The question did not arise whether the Court is similarly constrained in relation to an objection to an environmental authority.

The re-opening decision

  1. [21]
    In the re-opening decision I note that the granting of leave to re-open is valid where the Court considers it essential in order to impart fairness and equity when considering the matter. In that context, the Court listened to EEMAG who submitted that the interests of “justice and public interest” arose.
  1. [22]
    In the re-opening decision I summarised the matters identified in Attachment A to the form 12 General Application signed by Mr Lucke and dated 15 February 2021, the orders and relief sought in Attachment B to the General Application, and the grounds on which the orders and other relief was sought in Attachment C to the General Application.
  1. [23]
    I note in the re-opening decision that EEMAG’s position regarding the scope of the application was discussed during a review of the matter on 24 February 2021,[28] and further clarified by submissions on 10 March 2021. The issues raised in the application, distilled from the submissions of the statutory party, and which provided the agenda for the hearing (as set out at [19] of the re-opening decision), were as follows:
  1. 1.To introduce correspondence primarily arising through RTI requests for the purposes of transparency and accountability of departmental decisions and consideration of how and why DES withheld reports apparently used in their decision making (correspondence);
  2. 2.To introduce a document referred to as a DNRME Review of the Pacific Environment 2018 model obtained under RTI, and to engage a Groundwater Modelling Engineer to provide evidence in that regard (the DNRME Review); and
  3. 3.To introduce 2019-2020 Water Monitoring Data obtained after the hearing had concluded for the purpose of examining whether the draft EA trigger levels have been exceeded, and to assess whether the data might lead to certain conclusions regarding aquifer recharge (Water Monitoring Data).
  1. [24]
    In relation to item 1 (correspondence), I noted in the re-opening decision that the statutory party submitted that the inter-agency correspondence did not speak to any matter within the scope of the hearing and in that regard could not affect the outcome of the proceeding.[29] The basis of the statutory party’s submission was that the correspondence sought was created after the hearing had concluded. 
  1. [25]
    At [57] of the re-opening decision I said that the primary purpose of re-opening proceedings to introduce inter-agency correspondence (other than the DNRME Review) appeared to be for the purpose of establishing misconduct and that the jurisdiction of the Land Court did not extend to an inquiry of that nature.[30]
  1. [26]
    As to item 2, where EEMAG sought to introduce the DNRME Review, the statutory party was of the view that EEMAG had ‘re-characterised’ what they described “as an internal document… a step in the process… not a determination or decision,” as an “assessment provided by the experts.”
  1. [27]
    I concluded at [59] of the re-opening decision that, “The fact the DNRME Review challenges aspects of the performance of the Pacific Environment model it is considering, but does not ultimately disagree with key findings, might also dilute its significance.”[31] I noted that the PEM itself had been provided to the experts, and those experts, other than EEMAG’s expert Dr James who did not address the model, acknowledged and described certain shortcomings and expressed criticisms of the PEM.
  1. [28]
    Having considered the potential for prejudice to EEMAG and the other parties, I concluded at [62] that even if the DNRME Review was introduced and accepted, it would not affect the result of the case.
  1. [29]
    In relation to the water monitoring data, again it became apparent as a result of submissions in the re-opening application that the 2019-20 data which EEMAG sought to have introduced did not exist at the time of the hearing. At [63] I said that I accepted the submissions that there was an abundance of water monitoring data that was available to the experts such that the 2019-20 data (although it was not produced or published before the hearing) was unlikely to have any bearing on the result of the proceedings.
  1. [30]
    Overall, I was not satisfied that my discretion to reopen the hearing should be exercised and the application was dismissed.

Parties’ submissions - did EEMAG act unreasonably in progressing its objections by filing and prosecuting the re-opening application?

  1. [31]
    The applicants say that after the re-opening application was served,[32] they wrote to Mr Lucke seeking clarification of the scope of EEMAG’s application on the basis that the application did not address all the relevant factors.[33] In the applicants’ view, the response from EEMAG did not adequately deal with the deficiencies and raised fresh issues.
  1. [32]
    A directions hearing was held on 24 February 2021. Directions were made for EEMAG to deliver further submissions in support of the re-opening application. Those submissions dated 9 March 2021 sought to address the relevant criteria.
  1. [33]
    The applicants submit that the re-opening application was misconceived and fundamentally flawed. They say the filing of the application was unreasonable. In submissions at [28] they say, “Once filed, EEMAG was given numerous opportunities to consider the flaws in its application. EEMAG’s further conduct in persisting with the application and failing to address the relevant criteria for a re-opening was plainly unreasonable.”[34]
  1. [34]
    EEMAG says the re-opening application should never have been entertained.
  1. [35]
    Specifically, EEMAG say, “the Form 12 Application should not have been accepted for consideration by the Court and EEMAG has no case to answer in relation to costs arising from the Form 12 Application.”[35]
  1. [36]
    The EEMAG submission focuses on one issue in the re-opening application, the DNRME Review.
  1. [37]
    As noted earlier, the re-opening application also sought to introduce certain correspondence. In their material EEMAG say, “EEMAG’s motives were solely to bring the factual events to the notice and understanding of the parties (which we did) and then move on to the technical issues surrounding the model and Environmental Authority.”[36] They say this “should exonerate EEMAG from any misconceived blame and sheet home the responsibility to those whose actions triggered inconvenience and expense connected with an attempt to reopen the Court.”
  1. [38]
    I understand EEMAG to be contending that that aspect of the re-opening application (the introduction of correspondence obtained through RTI regarding departmental decisions and its use in decision making) was not a stand-alone element of the re-opening application. Rather, it was merely context relevant to the second issue, being the DNRME Review. As noted, having considered the submissions and having presided over the re-opening hearing, I was of the view that the application to introduce the correspondence was for the purpose of establishing misconduct.
  1. [39]
    EEMAG in their costs submissions do not address the third issue in the re-opening application, being the 2019-2020 water monitoring data.

Conclusion

  1. [40]
    It was the decision of EEMAG to pursue the re-opening application, no one else’s. To criticise the Court for engaging with the application to better understand the basis of the application, and to hear from the applicant (EEMAG) in the knowledge that the application was drafted by a lay advocate, seems contrary to the assertions of EEMAG regarding fairness, prejudice, competence and bias.
  1. [41]
    It is well known to the parties in this matter that in the exercise of its jurisdiction, the Land Court is not bound by the rules of evidence and may inform itself in the way it considers appropriate,[37] and must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms or the practice of other Courts.
  1. [42]
    The Court might dismiss an application which on its face is without foundation, for example, where the Land Court is not the proper forum in which to litigate a particular matter. The Court Registrar has a power to requisition a matter where the filing party has not complied with the Land Court Rules 2000 (Qld). However, once an application is before the Court, it is the responsibility of the Court to observe procedural fairness in conducting the hearing and make its recommendation(s).
  1. [43]
    There really is no distinction between an application brought to the Court by a lawyer of known experience and reputation, and a lay person. In either case it is sometimes not apparent on the face of the application the complex issues of fact and law which sit behind it. While the basis of an application might at first glance appear questionable, to not explore such an application further might put fairness and equity at risk.
  1. [44]
    Gaudron and Gummow JJ explained in Oshlack v Richmond River Council[38] that the power to award costs must be exercised judicially, not arbitrarily, capriciously, or so as to frustrate the legislative intent.
  1. [45]
    In Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No 25)[39] President Kingham said:

“[5] The rule that costs follow the event may inform the exercise of the discretion “…as there is justice in that approach. It protects those put to unnecessary expense at the behest of others.”[40]

[6] However, that is not the only principle that can guide this Court in the exercise of its discretion… The Court can draw on general principles that apply to each category of costs.

[7] …a party who applies for an indulgence of the Court will generally pay the costs of the application unless the respondent’s conduct in resisting the application was unreasonable.[41][42]

  1. [46]
    Further, in Goldhounds Mining and Exploration Pty Ltd v Department of Natural Resources, Mines and Energy (No 2),[43] President Kingham said:

“[3] Costs are not awarded to punish the unsuccessful party, but are intended to be compensatory. They indemnify the successful party against the expense to which they have been put in the litigation.[44]

[5] The rule that costs follow the event is deeply embedded in the law and that is a factor to be considered when exercising the Court’s discretion.[45] There is justice in this approach as it “protects those put to unnecessary and substantial expense at the behest of others”.”[46]

  1. [47]
    My conclusions in the reopening decision are summarised at [23], [25]-[30] above. Briefly, the material the respondent sought to introduce if the hearing was re-opened was not for a proper purpose (the interagency correspondence), would not affect the result of the case (the DNRME Review), and was unlikely to have any bearing on the result of the proceedings.
  1. [48]
    Despite raising public interest as a basis for not making a costs order against the respondent in the re-opening application, the respondent seemingly says that the public interest would have been served by dismissing the application without a hearing on the basis that it could not succeed. Putting that argument to one side, in my view, the application to re-open itself would not and did not determine, enforce or clarify an important right or obligation affecting the community, would not and did not affect the development of the law generally, and did not have the character of public interest or a test case proceeding.
  1. [49]
    The respondent failed in their application to re-open.
  1. [50]
    For these reasons the respondent must pay the applicant’s costs of the re-opening application on the standard basis. Such costs are to be agreed between the parties or failing agreement, to be assessed.

Orders

  1. 1.The respondent must pay the applicant’s costs of the re-opening application on the standard basis.
  2. 2.Such costs are to be agreed between the parties or failing agreement, to be assessed.

Footnotes

[1]  [2021] QLC 22.

[2] Mineral Resources Act 1989 (Qld) ss 289(8), 268(9).

[3] Mentech Resources Pty Ltd v MCG Resources Pty Ltd (In Liq) & Ors (No 2) (2012) 33 QLCR 43.

[4] Legend International Holdings Inc. v Taylor Aly Awaditjia & Anor (No 2) [2014] QLC 24 [8].

[5]  (2016) 37 QLCR 186.

[6] ERO Georgetown Gold Operations Pty Ltd v Henry (No 2) (2016) 37 QLCR 186 [23]-[24].

[7]  (2010) 31 QLCR 74.

[8] Anson Holdings Pty Ltd v Wallace & Anor (2010) 31 QLCR 74 [37].

[9]  (2010) 31 QLCR 74.

[10]  [2016] QLC 22.

[11]  [2020] QLC 2.

[12] Deimel v Phelps [2020] QLC 2 [20].

[13]  Applicants’ submissions filed 30 July 2021 [16]; citing Practice Direction 4 of 2018 (amended 7 April 2020) [82]-[84].

[14] Practice Direction 4 of 2018 (amended 7 April 2020) [84].

[15]  Affidavit of Alec Edward Lucke filed 16 August 2021, page 17.

[16]  The Practice Direction 4 of 2018 (Amended 7 April 2020) at [84](g) does reference “any other factor”.

[17]  [2006] QLC 79.

[18] Hegira Limited v Department of Natural Resources and Water [2006] QLC 79 [8]-[9].

[19]  (2011) 32 QLCR 270.

[20]  Ibid.

[21]  Ibid.

[22]  (2012) 33 QCLR 409.

[23]  Ibid [31]-[42].

[24]  The respondent filed an earlier re-opening application 6 January 2021, which was withdrawn 15 January 2021.

[25] Cement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group Inc & Anor (No 3) [2021] QLC 15.

[26]  (2020) 5 QR 155.

[27]  Affidavit of Alec Edward Lucke filed 16 August 2021, page 6.

[28] Cement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group Inc & Anor (No 3) [2021] QLC 15 [18].

[29]  Ibid [27].

[30]  Ibid [57].

[31]  Ibid [59]

[32]  Applicants’ submissions filed 30 July 2021 [20].

[33]  Affidavit of Andrew James Shute filed 30 July 2021.

[34]  Applicants’ submissions filed 30 July 2021 [28].

[35]  Affidavit of Alec Edward Lucke filed 16 August 2021, page 5.

[36]  Ibid page 8.

[37] Land Court Rules 2000 (Qld) s 7.

[38]  (1998) 193 CLR 72 [22].

[39]   [2020] QLC 22.

[40] Moreton Bay Regional Council v Mekpine Pty Ltd & Anor (No 2) (2014) 35 QLCR 273.

[41] President’s Club Ltd v Palmer Coolum Resort Pty Ltd (No 2) [2020] QSC 11 [42]-[51]; Mayfair Property Holdings Pty Ltd v Southland Packers Pty Ltd (No 3) [2016] QSC 150 [6].

[42] Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No 25) [2020] QLC 22 [5]-[8].

[43]  [2019] QLC 16.

[44] PT Limited and Westfield Management Limited v Department of Natural Resources and Mines(2007) 28 QLCR [25].

[45] Anson Holdings Pty Ltd v Wallace & Anor [2010] QLAC 4 [10].

[46] Mentech Resources Pty Ltd v MCG Resources Pty Ltd (in liq) (No 2) (2012) 33 QLCR 43 [4]; Moreton Bay Regional Council v Mekpine (No 2) (2014) 35 QLCR 273 [12].

Close

Editorial Notes

  • Published Case Name:

    Cement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group Inc & Anor (No 5)

  • Shortened Case Name:

    Cement Australia (Exploration) Pty Ltd v East End Mine Action Group Inc (No 5)

  • MNC:

    [2021] QLC 32

  • Court:

    QLC

  • Judge(s):

    JR McNamara

  • Date:

    20 Sep 2021

Appeal Status

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