Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Pembroke Olive Downs Pty Ltd v Sunland Cattle Co Pty Ltd (No 2)[2021] QLC 38

Pembroke Olive Downs Pty Ltd v Sunland Cattle Co Pty Ltd (No 2)[2021] QLC 38

LAND COURT OF QUEENSLAND

CITATION:

Pembroke Olive Downs Pty Ltd v Sunland Cattle Co Pty Ltd & Ors (No 2) [2021] QLC 38

PARTIES:

Pembroke Olive Downs Pty Ltd

(applicant)

 

v

 

Sunland Cattle Co Pty Ltd

(first respondent)

 

and

 

Namrog Investments Pty Ltd

(second respondent)

 

and

 

Balanced Property Pty Ltd

(third respondent)

FILE NOs:

MRA599-19 (MLA700032)

MRA600-19 (MLA700033)

MRA601-19 (MLA700034)

MRA602-19 (MLA700035)

MRA603-19 (MLA700036)

PROCEEDING:

Application for costs

DELIVERED ON:

17 November 2021

DELIVERED AT:

Brisbane

HEARD ON:

Submissions closed 16 November 2021

HEARD AT:

Heard on the papers

PRESIDENT:

FY Kingham

ORDERS:

  1. Sunland Cattle Co Pty Ltd must pay the additional costs incurred by Pembroke Olive Downs Pty Ltd as a result of the withdrawal of Mr Harris’ statement, to the extent those additional costs relate to the issue of the potential impact of the mine on Sunland Cattle Co Pty Ltd’s ability to access near surface groundwater.
  1. Those costs, if not agreed, are to be assessed on the standard basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where the applicant sought costs of the mining objection hearing from the first respondent – where the applicant sought costs on the basis that it was wholly successful and costs arose as a result of the respondent’s conduct – where the first respondent submitted it did enjoy success and that its conduct was reasonable – where the Court awarded costs on a limited basis where the first respondent’s conduct did cause the applicant to incur  costs

Land Court Act 2000 s 34, s 52A(d)(ii), s 52B(1)(j), s 52B(3)

Anson Holdings Pty Ltd v Wallace & Anor [2010] QLAC 2, applied

Anson Holdings Pty Ltd v Wallace & Anor (No 2) [2010] QLAC 4, considered

Australian Conservation Foundation Incorporated v Minister for the Environment (No 2) [2016] FCA 1095, cited

BHP Queensland Coal Investments Pty Ltd & Ors v Cherwell Creek Coal Pty Ltd (No 2) [2009] QLAC 8, cited

Riverstone Resources Pty Ltd v Thorcran Grazing Pty Ltd as Tte [2019] QLC 33, cited

Shelton v Repatriation Commission (1999) 85 FCR 351, cited

APPEARANCES:

Not applicable

  1. [1]
    On 31 July 2020, I recommended the Minister for Natural Resources, Mines and Energy grants Pembroke Olive Downs Pty Ltd the five mining leases it has applied for to undertake the Pembroke Olive Downs Project, with a reduced area for one of the leases. Pembroke now asks the Court to exercise its discretion to award costs against one of the objectors, Sunland Cattle Co Pty Ltd.
  1. [2]
    Pembroke submits there are three well established factors to be considered, which favour the order it seeks: the result of the case, the interest of the parties in relation to the objection, and the conduct of the parties in relation to the objection.

The result

  1. [3]
    Pembroke argues it was wholly successful. It relies on the decision of the Land Appeal Court in Anson[1] as authority for the proposition that the rule that costs follow the event “is deeply embedded in the law” and “there is often justice in taking that approach.”[2]
  1. [4]
    By s 34(1) of the Land Court Act 2000, the Court has power to “order costs for a proceeding in the court as it considers appropriate.” If it makes no order, each party must bear its own costs.[3] Although the hearing of an application for and objections to the grant of a mining lease is not a “proceeding,” the costs provision applies to a hearing of this type.[4] 
  1. [5]
    Section 34(1) confers a broad discretionary power on the Court to award costs.[5] Although the power is unfettered, it must be exercised judicially.[6]
  1. [6]
    By Practice Direction 4 of 2018 - Procedure for Mining Objection Hearings, the Court has identified the following factors as relevant in deciding whether to make a costs order in a mining objection hearing:
  1. (a)
    whether the application or an objection was made primarily for an improper purpose; and
  1. (b)
    whether the application or an objection was frivolous or vexatious; and
  1. (c)
    whether a party has introduced, or sought to introduce, new material at the hearing; and
  1. (d)
    whether a party has defaulted in the Court’s procedural requirements; and
  1. (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
  1. (f)
    whether the applicant or an objector abandoned or did not pursue their application or objection at the hearing; and
  1. (g)
    any other relevant factor.
  1. [7]
    Although there is no presumption that costs generally should or should not be awarded in mining objection hearings, it is legitimate to take into account the nature of the process.[7]
  1. [8]
    A mining objection hearing has important differences from a civil claim.
  1. [9]
    First, the Court is performing an administrative, not a judicial, function. The hearing is an integral step in the process of deciding the application. The Court’s role is to advise the ultimate decision maker, in this case the Minister for Natural Resources, Mines and Energy. The objection process allows public participation in decision making about mining leases. Any person (without restriction or qualification) may object to the grant of a mining lease, and is entitled to be heard on their objection. The mining objection hearing provides a public, transparent and accountable process for airing competing views and interests about a particular mining proposal. In that context, the Court should be careful not to exercise its discretionary power in a way that might overly deter persons with genuine objections from exercising their statutory rights.[8]
  1. [10]
    Further, a mining objection hearing is not an inter partes dispute. An objector is not required to prove its objection in the way a plaintiff bears an onus of proof in a civil claim. An objector has not necessarily “lost” if the applicant secures a favourable recommendation from the Court. The Court must make a recommendation on the application having taken into account the prescribed statutory criteria, as well as any objections. In theory at least, considering the statutory criteria, the Court could recommend an application be refused for a reason not advanced by an objector.
  1. [11]
    In Anson, the Land Appeal Court identified the result in a mining objection hearing as a factor the Court should take into account and balance against other factors, in determining what costs order, if any, to make:

[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 and that is a factor to be taken into account when exercising our discretion under s.34(1).”[9] (citations omitted)

  1. [12]
    It is true that Pembroke secured positive recommendations and to that extent, may be considered to have won the case. However, Sunland did succeed on one ground of objection to one of the mining leases. It objected that the area of land applied for was not appropriate. After cross-examination of a Pembroke witness on the topic, Pembroke proposed new boundaries for the mining lease that included part of Sunland’s property. The change significantly reduced the affected area.

The interests of the parties in relation to the objection

  1. [13]
    Pembroke acknowledges, as a relevant factor, that a landholder who objects to a mining lease is exercising a statutory right to object, in circumstances where the grant could lead to an unwelcome intrusion on the landholder’s property.[10] It seeks to employ that as a factor relevant to the question of costs.
  1. [14]
    However, there is no requirement for a person to have a proprietary interest that is affected by a mining lease application before they are entitled to object and be heard on an application. Considering the nature of a party’s interests on a costs order, as opposed to any evidence of improper motivation in making an objection, is at odds with the unrestricted statutory right to object.
  1. [15]
    Further, I do not accept Pembroke’s submission that Sunland’s objection did not relate to an unwelcome intrusion. It clearly did. Sunland’s concern was about the impact of the mine on its access to water. Although the evidence before the Court demonstrated there was little foundation for that concern, it was about an unwelcome intrusion on its full enjoyment of its property.
  1. [16]
    Further, one of the leases covered a large area on Sunland’s property, which was reduced after cross-examination of Pembroke’s mining expert.

The conduct of the parties in relation to the objection

  1. [17]
    This is one of the factors identified by the Court in its Practice Direction for Mining Objection Hearings.
  1. [18]
    Pembroke argues Sunland is in default of the Court’s procedural requirements in two respects. First, that Sunland did not formally abandon numerous grounds of objection that it did not pursue at the hearing. Second, by withdrawing a statement by its Director, Paul Harris, about Sunland’s agricultural activities and access to water.
  1. [19]
    Sunland says its conduct was reasonable, it withdrew Mr Harris’ statement without fault and denies any procedural default.

The November order

  1. [20]
    The November order declared that the issues for the hearing would be those issues raised by any ground of objection, as particularised, unless all active parties advised the Court that a hearing was no longer required on any issues raised by an objection.
  1. [21]
    Pembroke says Sunland was in default of that order by failing to advise the Court of any objections which it abandoned. Pembroke repeatedly asked Sunland to identify which grounds of objection were abandoned. In contrast to two other objectors who were active parties in the hearing, Sunland did not do so.
  1. [22]
    Sunland says it did provide clarity about what issues it wished to be heard on. It agreed to a List of Issues in Dispute with the other parties. When Pembroke identified different boundaries for the mining lease that included part of Sunland’s property, Sunland agreed to a revised List of Issues in Dispute, which further reduced the matters on which they asked to be heard.
  1. [23]
    During his final submissions, counsel for Sunland argued that it was not possible to abandon an objection as this would amount to a partial withdrawal of an objection, which is not provided for by the Mineral Resources Act 1989.
  1. [24]
    I addressed that question at [24] to [29] of my reasons for recommendation. I drew a distinction between withdrawing an objection and abandoning a ground of objection or a fact or circumstance relied on in support of a ground of objection. While there is no express power to partially withdraw an objection, I considered there was no impediment to an objector abandoning a ground of objection, or fact and circumstance relied upon.
  1. [25]
    I am not aware of any prior ruling on the point. Although I did not accept counsel’s view, it was not unarguable, and provides an explanation for Sunland’s unwillingness to formally abandon any ground of objection.
  1. [26]
    A fair interpretation of counsel’s opening submissions is that Sunland did not wish to be heard about anything not included in the List of Issues in Dispute. If there was any doubt about that by the end of the hearing, counsel dispelled that during his closing submissions in the following exchange:

KINGHAM P: In – one of the difficulties in these hearings is the – perhaps the sharp edges of the statutory framework that it operates within, and I’m particularly considering the requirement under section 268 to hear the objections unless withdrawn. The practice direction that the court has promulgated has served to, I think, sharpen the focus for the hearing. Unless an objection is formally withdrawn or unless something is done to make it clear that the scope of the hearing has – the scope of the issues that the objector wishes the court to consider are confined, the court has to look to that statutory requirement and ensure that it’s – that is fulfilled. Is your submission to me that in addressing the objections and making my recommendation, giving my reasons, I need only address those matters that are on that amended list of issues in dispute?

MR MORZONE: Yes. That is my submission.

KINGHAM P: Putting aside the statutory criteria which I must always address.

MR MORZONE: Yes.

KINGHAM P: Okay.

MR MORZONE: It is my submission. And, your Honour, if – let’s look at it in a sensible way like this. If an objections says there are environmental impacts, and then it says the environmental impacts are groundwater and surface water, which is what it did, and then an expert report is produced and it says, “These are the groundwater impacts and these are the surface water impacts,” and the objector says the objection is limited to those issues as raised by the reports, and then it produces a list of issues in dispute for hearing, it frankly belies common sense that you couldn’t say the objector has at least abandoned the issues that he’s not pursuing. Because otherwise he couldn’t possibly say that the issues in dispute are as limited as he has.

Now, he hasn’t withdrawn the objection because, in my submission, the withdrawal is either whole or not at all. I don’t think there’s provision for partial withdrawal.

And although the practice direction talks about abandoning issues, which is probably the more correct terminology, that’s in effect what’s happened here.[11]

  1. [27]
    By then, Pembroke had prepared its final submissions. Pembroke says it could have avoided costs relating to all objections addressed in volume 2 of its submissions. That volume dealt with matters raised in Sunland’s objections, which were not included in the List of Issues in Dispute.
  1. [28]
    That argument is initially attractive. However, in large part, Sunland’s objections invoked each of the statutory criteria prescribed by s 269(4) of the MRA for each of the mining leases Pembroke applied for. These are matters on which the Court would expect Pembroke to lead evidence and make submissions, whether or not referenced or invoked by a particular ground of objection. That is particularly the case in a project of this nature and scale.
  1. [29]
    The only objections that might not be characterised in that way are the objections that Pembroke described as “Subcategory 5 - All costs incurred responding to grounds of objection dealing with the 'EA Objections', 'EIS Objections' and 'Eligibility Criteria objections’”.
  1. [30]
    Pembroke says the Court did not have jurisdiction to consider these. As they were framed in the objection, these grounds were poorly articulated. In his opening submissions, counsel for Sunland clarified that the substance of these grounds was encompassed by other grounds. Sunland did not assert that the environmental authority was unlawfully issued, or that the Court should review the process. Rather, Sunland argued there were legitimate issues not properly addressed in the EIS and environmental approval process that needed to be considered in deciding what recommendation to make on the mining lease applications.

The March order

  1. [31]
    The March order required the parties to file and serve any statements of evidence on which they intended to rely at the hearing.
  1. [32]
    Sunland filed a statement by one of its directors, Mr Harris, which formed part of the evidence base for all experts (other than Mr Fahrer). Pembroke says Sunland’s conduct in withdrawing the statement prolonged the hearing because the parties, and the Court, had to “unscramble the egg” as to the actual evidence before the Court.
  1. [33]
    I accept that submission, but only as it relates to one issue - the potential impact of the mine on Sunland’s ability to continue to take near surface water from the bed of the Isaac River.
  1. [34]
    Under the Water Plan (Fitzroy Basin) 2011, landowners are authorised to take water from a watercourse for stock or domestic purposes. No licence is required and the plan imposes no limit on the take.
  1. [35]
    The issue arose in this way – Sunland asserted, through Mr Harris’ statement, that under the Fitzroy Basin plan it used sand spears to extract 250 Ml/year from the bed of the Isaac River.
  1. [36]
    When the water experts joint reports were filed, Sunland identified that they had not dealt with the impact on near surface water. I directed the five expert witnesses who authored the relevant reports to meet as a group and provide a supplementary report on the issue.
  1. [37]
    The ongoing relevance of the issue is evident from the revised List of Issues which included this question posed by the parties:

“What impact will the reduction in flow duration curve have on the ability of existing users to extract water from:

(b) the near-surface groundwater from the bed of the Isaac River.”

  1. [38]
    Because there is no licensed take, the only evidence of existing use came from Mr Harris, until his statement was withdrawn. Dr Johnson, an expert engaged by Sunland, gave evidence about the existence and location of sand spears adjacent to Sunland’s property. However, he had no personal knowledge of the amount taken or if, in fact, any had been taken.
  1. [39]
    Sunland offered no reason for withdrawing the statement, which occurred late in the proceedings. The withdrawal did require further evidence to be led from Dr Johnson. Five expert witnesses went to considerable trouble to address the issue. The Court had to carefully consider what to make of detailed evidence about an impact on a presumed take, in the absence of evidence about Sunland’s use of the resource. But for Mr Harris’ statement, the issue would not have been raised for the Court’s consideration as it had not been identified previously as a matter that need to be addressed.

Other factors

  1. [40]
    Sunland also says the award of costs would be against the public interest, as the process is an administrative one and not inter partes. It says a ML applicant may choose to address as many or as few of the issues in s 269(4) regardless of whether an objector has raised or abandoned an objection. Further, the hearing was brought on efficiently after the JERs were received and it was not Sunland’s fault that they did not reduce the issues until after receiving the expert evidence, as they were not aware of the extent of disagreement/agreement between the experts until the JERs were filed.
  1. [41]
    Further, insofar as Sunland’s objections related to matters other than ground water and surface water, it succeeded in having the mining lease area reduced and, once this occurred, it agreed upon a further reduction of the list of issues in dispute. It says Pembroke’s preparation of a large volume of evidence was necessary, partly to meet issues raised by other objectors and in any case, was a matter for Pembroke.

Conclusion

  1. [42]
    I have taken into account the factors canvassed in these reasons in deciding what order to make.
  1. [43]
    A mining objection hearing is not a civil claim and Sunland was not required to prove its grounds of objection. Pembroke was successful in obtaining positive recommendations on its mining lease applications; but for one lease, Pembroke’s decision to apply for a reduced area was a successful outcome for Sunland.
  1. [44]
    Although Sunland did not formally abandon any ground of objection, it has explained its reason for not doing so. In effect, it limited the scope of the hearing through the agreed lists of issues in dispute. Further, the grounds not formally abandoned largely referenced statutory criteria that the Court would expect Pembroke to lead evidence about for a project of this nature and scale.
  1. [45]
    However, Sunland did not explain why it withdrew Mr Harris’ statement and that largely removed the evidential foundation for the near surface groundwater issue, which occupied considerable time in the experts’ preparation for and evidence during the hearing. Pembroke should have the additional costs incurred as a result of Mr Harris’ statement being withdrawn.
  1. [46]
    It is open to the Court to make a partial costs order.[12] Pembroke should have a costs order limited to the additional costs arising from the withdrawal of Mr Harris’ statement, to the extent they relate to the impact on access to near surface groundwater.

Orders

  1. Sunland Cattle Co Pty Ltd must pay the additional costs incurred by Pembroke Olive Downs Pty Ltd as a result of the withdrawal of Mr Harris’ statement, to the extent those additional costs relate to the issue of the potential impact of the mine on Sunland Cattle Co Pty Ltd’s ability to access near surface groundwater.
  1. Those costs, if not agreed, are to be assessed on the standard basis.

Footnotes

[1] Anson Holdings Pty Ltd v Wallace & Anor (No 2) [2010] QLAC 4 [10].

[2]  Ibid.

[3] Land Court Act 2000 s 34(2).

[4] Land Court Act 2000 s 52A(d)(ii), 52B(1)(j),(3).

[5] Riverstone Resources Pty Ltd v Thorcran Grazing Pty Ltd as Tte [2019] QLC 33 [2].

[6] BHP Queensland Coal Investments Pty Ltd & Ors v Cherwell Creek Coal Pty Ltd (No 2) [2009] QLAC 8 [6]; Anson Holdings Pty Ltd v Wallace & Anor [2010] QLAC 2 [22]; Anson Holdings Pty Ltd v Wallace & Anor (No 2) [2010] QLAC 4 [5], [7].

[7] Anson Holdings Pty Ltd v Wallace & Anor (No 2) [2010] QLAC 4 [7]; Riverstone Resources Pty Ltd v Thorcran Grazing Pty Ltd as Tte [2019] QLC 33 [4].

[8] Shelton v Repatriation Commission (1999) 85 FCR 351, 355.

[9] Anson Holdings Pty Ltd v Wallace & Anor (No 2) [2010] QLAC 4.

[10]  Ibid [9].

[11]  T 6-68, line 16 to T 6-69, line 2.

[12] Australian Conservation Foundation Incorporated v Minister for the Environment (No 2) [2016] FCA 1095.

Close

Editorial Notes

  • Published Case Name:

    Pembroke Olive Downs Pty Ltd v Sunland Cattle Co Pty Ltd & Ors (No 2)

  • Shortened Case Name:

    Pembroke Olive Downs Pty Ltd v Sunland Cattle Co Pty Ltd (No 2)

  • MNC:

    [2021] QLC 38

  • Court:

    QLC

  • Judge(s):

    FY Kingham

  • Date:

    17 Nov 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.