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- Unreported Judgment
New Acland Coal Pty Ltd v Oakey Coal Action Alliance Inc. (No 3) QLC 5
LAND COURT OF QUEENSLAND
New Acland Coal Pty Ltd v Oakey Coal Action Alliance Inc. & Ors (No 3)  QLC 5
New Acland Coal Pty Ltd
ACN 081 022 380
Oakey Coal Action Alliance Inc.
(active party objector)
Chief Executive, Department of Environment and Science
MRA026-21 (MLA 700002)
MRA027-21 (MLA 50232)
EPA028-21 (EPML 00335713)
Application for costs
24 May 2022
19 April 2022
PG Stilgoe OAM
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where there were multiple proceedings in multiple courts – where the matter was reopened to introduce new material that was ultimately irrelevant to the outcome of the case – where the matter was remitted – where the parties did not apply for a stay of the remitted hearing – where a party claimed that they did not apply for a stay because any irreparable harm could be the subject of compensation later – where a party claimed that costs were wasted – where a party sought costs on the basis of fairness – where the Court did not order costs
Land Court Act 2000 s 34
Practice Direction 4 of 2018
Anson Holdings Pty Ltd v Wallace & Anor (2010) 31 QLCR 130;  QLAC 4, applied
Anson Holdings Pty Ltd v Wallace & Anor (2010) 31 QLCR 74;  QLAC 2, applied
Australian Capital Holdings P/L v Mackay City Council & Ors  QCA 170, distinguished
Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investment Pty Ltd (No 23)  QLC 18, distinguished
Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd (No 25)  QLC 22, distinguished
Interchase Corporation Limited (in Liq.) v Grosvenor Hill (Queensland) Pty Ltd (No. 3)  QCA 191, applied
Mentech Resources Pty Ltd v MCG Resources Pty Ltd (in liq) (No 2) (2012) 33 QLCR 43;  QLAC 2, considered
New Acland Coal Pty Ltd v Ashman & Ors (No 6)  QLC 17, considered
New Acland Coal Pty Ltd v Ashman & Ors (No. 3)  QLC 1, considered
New Acland Coal Pty Ltd v Smith & Ors (No 2)  QSC 119, considered
New Acland Coal Pty Ltd v Smith & Ors  QSC 88, considered
Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd (No 1) (2019) 2 Qd R 271;  QCA 184, cited
Pembroke Olive Downs Pty Ltd v Sunland Cattle Co Pty Ltd & Ors (No 2)  QLC 38, applied and distinguished
Riverstone Resources Pty Ltd v Thorcran Grazing Pty Ltd  QLC 33, considered
Riverstone Resources, in Moreton Bay Regional Council v Mekpine Pty Ltd & Anor (No 2) (2014) 35 QLCR 273;  QLAC 5, considered
DG Clothier QC, with SJ Webster (instructed by Clayton Utz) for the applicant
CJ McGrath (instructed by the Environmental Defenders Office) for the respondent
A Hellewell (instructed by the Litigation Unit, Department of Environment and Science) for the statutory party
- Every saga has an end. Hopefully, this decision will be the end of the long running New Acland dispute.
- Who should bear the costs of the multiple proceedings before this Court remains unresolved. None of the parties seek orders about the original hearing or the hearing before me. Oakey Coal Action Alliance Inc. (OCAA) ask for an order that New Acland Coal Pty Ltd (NAC) pay its costs arising from two events: the 2017 application to reopen heard by Member Smith and the 2018 remitted proceedings before President Kingham.
- Subject to the provisions of the Land Court Act 2000 or another Act, I may order costs as I consider appropriate.
- Practice Direction 4 of 2018 (PD) sets out matters the Court may consider in deciding whether to make a costs order. OCAA relies on paragraph 84(c) – whether a party has introduced, or sought to introduce, new material at a hearing – and 84(g) – any other relevant factor. OCAA says that the “other relevant factor” is the “wasted” costs it has incurred.
- OCAA also relies on three general principles it says can be drawn from case law. The first is that, while there is no usual order as to costs in the Land Court, there is often justice in the approach that costs should follow the event. The Land Appeal Court has stated that, while the rule that costs follow the event is not automatically applied in this jurisdiction, it is a rule deeply embedded in the law and that is a factor to be taken into account when exercising my discretion.
- The second principle is that OCAA is not required to prove exceptional circumstances to justify an order for costs.
- The third principle is that the power to award costs “protects those put to unnecessary and substantial expense at the behest of others”.
The 2017 Reopening
- OCAA wants an order that NAC pay its costs of and incidental to not only the application to reopen the hearing, but all costs incurred because Member Smith allowed the reopening. That is, OCAA wants an order that NAC pay its costs of considering the new evidence, briefing its experts, the additional hearing time, and the submissions required by the new evidence.
- OCAA submits there are three reasons why I should make an order in its favour. Firstly, OCAA says costs should follow the event. Secondly, it says that NAC introduced new material, so paragraph 84(c) of the PD is a relevant consideration. Thirdly, it says that the costs were wasted because the new material related to groundwater which Bowskill J (as her Honour then was) found was outside the Court’s jurisdiction.
- In the original hearing, OCAA and other objectors raised objections about the mine’s effect on groundwater and surface water. The Independent Expert Scientific Committee (IESC) published two reports, on 10 April 2014 and 10 December 2015, giving preliminary advice about these issues. Both reports were in evidence before Member Smith.
- Member Smith heard what he thought would be closing submissions between 5 and 7 October 2016. IESC published its final advice on 14 December 2016.
- On 19 December 2016, NAC filed an application for leave to introduce new evidence or, alternatively, to reopen its case to tender the final IESC report.
- The IESC final report drew upon documentation that was not in evidence before Member Smith and which was not available to the objectors. Member Smith observed that the IESC and its opinion “featured heavily in the hearing”. He determined that the final report could not be admitted into evidence unless the objectors had access to the source material, their experts had an opportunity to examine and comment on that material, and witnesses could be cross-examined about the final report. Consequently, Member Smith allowed the reopening on a “much more extensive basis”.
Should costs follow the event?
- OCAA submits that its costs in responding to the new groundwater material were ultimately unnecessarily incurred and wasted due to the outcome of the subsequent appeals. It submits that the waste is the relevant “event” when considering the application of the general rules that costs follow the event.
- I do not accept that the concept of “wasted costs” is an event within the meaning of the general rule that costs follow the event. Courts are reluctant to dissect proceedings into various events or issues for the purpose of determining costs.
- That reluctance is even more compelling in a jurisdiction where it is difficult to identify winners and losers. As President Kingham has identified, a mining objection hearing has important differences from a civil claim. The Court is performing an administrative function, not a judicial one. It is not an inter partes dispute and an objector is not required to prove its objection in the way a civil plaintiff must. An objector may not have “lost” just because the Court recommends that a mining lease be granted.
- I am also not persuaded that OCAA was “successful” in this application. Member Smith found that the IESC report should be in evidence. He found that the parties should have the opportunity to consider the report and comment further upon its findings. He had recourse to that report in his decision.
Does the introduction of new evidence justify an order for costs?
- OCAA relies on both the PD and the Court of Appeal’s decision in Australian Capital Holdings P/L v Mackay City Council & Ors to support this submission.
- In Australian Capital Holdings, the Court ordered the unsuccessful party to pay the costs incurred by the other party in preparing for a further hearing consequent on a reopening of the evidence.
- The circumstances of that case were entirely different; the Court of Appeal held that the purpose of the hearing was to allow the respondents to adduce further evidence to overcome a lacuna in the case they had presented to the primary judge. They were granted the indulgence of a second trial, a decision that the Court of Appeal found was made in error.
- OCAA says that it opposed NAC’s application. Member Smith’s reasons for decision demonstrate that this submission is not completely accurate.
- OCAA’s submissions accepted the relevance of the final report - NAC’s application was “not unreasonable” - but asked Member Smith for orders allowing expert comment and analysis of its implications. I also note that Dr Ward, an objector, submitted that “it seems appropriate for the Court to consider the 2016 IESC report in this instance.”
- OCAA now submits that the only credible explanation for NAC’s application to reopen was one of self-interest – that it was a tactical move to introduce evidence that was an “insurance policy” in respect of groundwater issues, an indulgence on an issue that was ultimately irrelevant.
- It is true that the contents of the final report favoured NAC and it is true that groundwater was ultimately irrelevant. I do not accept, however, that the sole purpose of the reopening was to give NAC an “insurance policy”.
- NAC points out that the objectors raised the issue of groundwater. NAC was obliged to respond to that objection. Member Smith identified that the IESC report had the potential to alter some of the recommendations of the court. His Honour understood the unpalatable alternatives of not allowing the final IESC report; the ultimate decision-maker would make a decision based on a recommendation that was deficient and/or the matter would be referred back to the Court for rehearing in light of the IESC final report.
- The parties provided extensive evidence on groundwater in the original hearing. It was a very important issue for the objectors, many of whom were rural producers who felt that their access to water would be threatened by an expansion of the mine.
- Further, as NAC points out and Member Smith’s decision records, the IESC final report also dealt with surface water which was always a live issue in the case.
The wasted costs
- But it submits that it should be paid its costs of the application to reopen because the IESC final report was evidence on an issue that ultimately proved to be irrelevant and, therefore, the costs it incurred in responding to the report were wasted. In support of that submission, OCAA relies on the Court of Appeal’s specific reference to “wasted costs” in Australian Capital Holdings.
- I have already identified the very different circumstances in that case. I have also already addressed the issue of “wasted costs” in  –  above.
The 2018 Remitted hearing
- OCAA submits there are two bases for an order that NAC pays its costs of the remitted hearing. The first is that the costs were wasted because the case was, ultimately, reheard before me. The second is that it would be “fair” for NAC to pay its costs.
- On 28 May 2018, Bowskill J set aside Member Smith’s orders and remitted the matter back to the Court on a limited basis to be heard by a different Member.
- On 30 May 2018, OCAA filed a notice of appeal against Bowskill J’s decision.
- On 5 June 2018, President Kingham held a review to progress the remitted hearing. OCAA provided a draft order seeking an adjournment of the remitted hearing pending the appeal decision. OCAA did not file any application to adjourn the remitted hearing and OCAA’s Senior Counsel confirmed that it was not seeking a stay of Bowskill J’s decision.
- President Kingham gave the parties the opportunity to file written submissions. NAC and the Department of Environment and Science (DES) both submitted that the Court should not adjourn the remitted matter. DES’s submissions pointed out that the interests of justice affected not only the parties before the Court but “many others, including persons living or working near the mine, local communities, employees of (NAC) and the State”.
- On 13 June 2018, NAC cross appealed Bowskill J’s decision on the basis of apprehended bias by Member Smith. The cross appeal was conditional; that is, NAC would only raise the issue of bias if OCAA’s appeal was successful.
- By a decision dated 20 June 2018, President Kingham declined to adjourn the remitted matter.
- On 7 November 2018, President Kingham recommended the grant of the mining leases and the environmental authority.
- On 10 September 2019, the Court of Appeal dismissed OCAA’s appeal and allowed NAC’s cross appeal, holding that a party could not conditionally appeal. However, he Court of Appeal did not set aside Bowskill J’s orders.
- On 3 February 2021, the High Court allowed OCAA’s appeal from the Court of Appeal’s decision on the basis that Bowskill J’s qualified remittal was inappropriate. The case was remitted to the Land Court for a full rehearing.
The exercise of my discretion
- OCAA’s primary submission is that the remitted hearing was complex and time consuming and that its efforts in the rehearing were wasted because NAC pressed for the rehearing despite the appeal.
- I accept that the remitted hearing was complex and time consuming. I accept that the High Court’s decision meant that the parties’ efforts in the remitted hearing were wasted.
- President Kingham acknowledged the potential for wasted costs when she decided to proceed with the remitted hearing.
- OCAA submits that it did not apply for a stay of the remitted hearing because it could not show irreparable harm, which is an essential element in an application for a stay. It says that the only harm it could have suffered was the considerable costs of the remitted hearing and these could always be the subject of compensation from NAC.
- There are four problems with that submission. The first is that President Kingham noted the costs of the remitted hearing would be limited by the terms of Bowskill’s J order. When I asked Counsel for OCAA what the costs of the remitted hearing were, he was unable to tell me. The submission would have been much more effective if OCAA could put a figure on the “considerable costs”.
- The second problem is that there was no guarantee that any Court would order NAC to pay OCAA’s costs of the remitted hearing. OCAA might have found comfort in that prospect but this hearing shows that the outcome was never certain.
- The third problem is, as President Kingham pointed out, there were a myriad of possible outcomes from the appeal. As it turns out, President Kingham did not predict the actual outcome. That result demonstrates the futility of considering these applications for costs with the benefit of 20/20 hindsight. No one could have predicted the convoluted path this objection hearing has taken. And if anyone had predicted it, would they have been taken seriously?
- The fourth problem is that this is the first time the submission has been made. The transcript of the hearing before President Kingham does not reflect any discussion about the merits of an application for a stay because, as far as OCAA was concerned, it was never on the table.
- OCAA submits that fairness requires an order in its favour, relying on Anson.
- The Court has awarded costs in mining objections hearings where it has identified a course of conduct by one party that put the other party to costs that might be characterised as “unfair”. In Cherwell Creek the order for costs came from a late application to amend pleadings shortly before the hearing in a long running case. In Pembroke the court awarded costs relating to an objector’s unexplained withdrawal of a statement that left the objection unsupported. In Anson the Court awarded costs against an objector who did not exercise their right to object reasonably and responsibly.
- Those cases do not justify the obverse – a party does not obtain an order for costs simply because it has acted reasonably.
- I accept that OCAA is a not-for-profit community group. I accept that NAC is a large company pursuing a project for significant commercial gain. I do not accept that I can infer that the costs of the 2017 and 2018 hearings were “trivial business expenses”. I do not accept that the relative disparity between the parties justifies an order for costs without some other factor being present. To find otherwise would create a difficult precedent for this Court which regularly sees David and Goliath contests between a well-funded commercial mining enterprise and, by comparison, poorly funded landholders and/or community groups. There is no basis for an argument that David should have his costs purely because he is David.
11 October 2017 application
- Member Smith reserved the costs of this application. OCAA submits that there should be no order as to costs and, unsurprisingly, NAC does not demur. I will make the order as requested.
- No order as to the costs for the 11 October 2017 application filed by OCAA.
- The application for costs in relation to the 2017 reopening of the hearing before Member Smith is refused.
- The application for costs in relation to the first remitted hearing before President Kingham in 2018 is refused.
- Otherwise, no order as to the costs of these proceedings.
Land Court Act 2000 s 34 (the Act as it applied at the time of the two applications).
Riverstone Resources Pty Ltd v Thorcran Grazing Pty Ltd  QLC 33  – .
Anson Holdings Pty Ltd v Wallace & Anor (2010) 31 QLCR 130;  QLAC 4 - (Anson).
Ibid; Anson Holdings Pty Ltd v Wallace & Anor (2010) 31 QLCR 74;  QLAC 2.
Riverstone Resources, in Moreton Bay Regional Council v Mekpine Pty Ltd & Anor (No 2) (2014) 35 QLCR 273;  QLAC 5  citing Mentech Resources Pty Ltd v MCG Resources Pty Ltd (in liq) (No 2) (2012) 33 QLCR 43;  QLAC 2.
New Acland Coal Pty Ltd v Ashman & Ors (No. 3)  QLC 1 .
Ibid , .
Interchase Corporation Limited (in Liq.) v Grosvenor Hill (Queensland) Pty Ltd (No. 3)  QCA 191 .
Pembroke Olive Downs Pty Ltd v Sunland Cattle Co Pty Ltd & Ors (No 2)  QLC 38 .
 QCA 170 (Australian Capital Holdings).
OCAA’s Submissions on Costs .
New Acland Coal Pty Ltd v Ashman & Ors (No. 3)  QLC 1 -.
OCAA’s Submissions on Costs .
New Acland Coal Pty Ltd v Smith & Ors  QSC 88.
New Acland Coal Pty Ltd v Smith & Ors (No 2)  QSC 119.
NAC’s Outline of Submissions on OCAA’s Costs Application .
New Acland Coal Pty Ltd v Ashman & Ors (No 6)  QLC 17.
Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd (No 1) (2019) 2 Qd R 271;  QCA 184.
New Acland Coal Pty Ltd v Ashman & Ors (No 6)  QLC 17  – .
Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd (No 25)  QLC 22; Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investment Pty Ltd (No 23)  QLC 18.
Pembroke Olive Downs Pty Ltd v Sunland Cattle Co Pty Ltd & Ors (No 2)  QLC 38.
- Published Case Name:
New Acland Coal Pty Ltd v Oakey Coal Action Alliance Inc. & Ors (No 3)
- Shortened Case Name:
New Acland Coal Pty Ltd v Oakey Coal Action Alliance Inc. (No 3)
 QLC 5
Member PG Stilgoe OAM
24 May 2022