Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QLC
  3. 2024
  4. MacMines Austasia Pty Ltd v Chief Executive, Department of Environment, Science and Innovation (No 3) - [2024] QLC 21

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

MacMines Austasia Pty Ltd v Chief Executive, Department of Environment, Science and Innovation (No 3)[2024] QLC 21

MacMines Austasia Pty Ltd v Chief Executive, Department of Environment, Science and Innovation (No 3)[2024] QLC 21

LAND COURT OF QUEENSLAND

CITATION:

MacMines Austasia Pty Ltd v Chief Executive, Department of Environment, Science and Innovation (No 3) [2024] QLC 21

PARTIES:

MacMines Austasia Pty Ltd

ACN 088 853 114

(applicant)

v

Chief Executive, Department of Environment, Science and Innovation

(respondent)

FILE NO:

EPA043-23

PROCEEDING:

Application for costs  

DELIVERED ON:

30 October 2024

DELIVERED AT:

Brisbane

HEARD ON:

Submissions closed 24 September 2024 

HEARD AT:

On the papers

MEMBER:

JR McNamara

ORDERS:

  1. The application is allowed. The appellant pay the respondent’s costs of and incidental to the proceeding as agreed or assessed on the standard basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where the respondent filed a costs application – where the appellant opposes the application – where the respondent is a government agency – where the respondent made concessions on discrete issues before the hearing of the appeal – where a disputed issue was found in favour of the appellant – whether the appellant was partially successful – whether the rule that costs follow the event applies – whether parties should bear their own costs

Land Court Act 2000 s 27A

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

Cidneo Pty Ltd v Chief Executive, Department of Transport and Main Roads (No. 2) [2018] QLAC 9

ERO Georgetown Gold Operations Pty Ltd v Henry (No 2) [2016] QLAC 3

Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) (2015) 327 ALR 192

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

Karam Group Pty Ltd Atf The Karam (No. 1) Family Trust v HCA Queensland Pty Ltd (No 2) [2024] QSC 74

Lonergan & Anor v Friese (No 2) [2020] QLAC 4

Mentech Resources Pty Ltd v MCG Resources Pty Ltd (In Liq) (No. 2) (2012) 33 QLCR 43

APPEARANCES:

Not applicable

  1. [1]
    On 13 August 2024, I determined the appeal the subject of this proceeding, EPA043-23.[1] The question for resolution in the appeal was whether a particular application for an environmental authority (EA) was a properly made application under the Environmental Protection Act 1994 (Qld) (EPA). The appellant said it was a properly made application and the respondent said it was not.
  1. [2]
    In determining the appeal, I made the following orders:
  1. The review decision be set aside to the extent that it relates to:
  1. the Coordinator-General’s Report having lapsed;
  1. there being a failure to comply with s 125(1)(n) of the Environmental Protection Act 1994 (Qld); and
  1. there having been a failure to comply with s 125(1)(c) of the Environmental Protection Act 1994 (Qld).
  1. I otherwise confirm the review decision that the 2022 EA Application is not ‘properly made’ on the basis that it does not comply with the following:
  1. Section 125(1)(l) of the Environmental Protection Act 1994 (Qld); and
  1. Section 126A of the Environmental Protection Act 1994 (Qld).
  1. [3]
    I also made orders allowing the filing of a cost application and submissions in response.
  1. [4]
    The appeal was lodged on 7 March 2023. On 12 May 2023 the respondent, while maintaining that the application under the EPA was not properly made, conceded that the Coordinator-General’s Report had not in fact lapsed and that the appellant had not failed to comply with s 125(1)(n) of the EPA. These concessions are reflected in orders 1(a) and (b).
  1. [5]
    On 22 March 2024, two months before the hearing, the respondent sent a letter to the appellant stating that it ‘no longer agitated’ the following issues. Specifically, the respondent conceded that:
  1. the appellant had not failed to comply with s 125(1)(c) with respect to ERAs 56, 60 and 64 under the EPA (but maintained failure in respect of ERA 61);
  1. the applicant had not failed to comply with s 125(1)(l) of the EPA with respect to the Northern Seasonal Wetland, the offset area or an insufficient assessment of subsequent dependency of its users of shallow groundwater (but maintained failure in respect of groundwater dependent stygofauna and shallow groundwater; power station and greenhouse gasses; sewage treatment – odour; surface water; and highwall drainage);
  1. the applicant had not failed to comply with s 126A of the EPA with respect to “insufficiency of avoidance, mitigation and management measures to address impacts with take or interference with underground water other than use of compensation agreements and offsets,” or “insufficient assessment of subsequent dependency of its users of shallow groundwater” (but maintained failure in respect of groundwater dependent stygofauna and shallow groundwater; groundwater modelling; groundwater quality; and cumulative groundwater impacts). 
  1. [6]
    I made order 1(c) because in my view, consistent with the position advanced by the appellant at the hearing, the application had adequately described ERA 61 for the purposes of s 125(1)(c).

The approach of the Court

  1. [7]
    Section 27A of the Land Court Act 2000 (LCA) sets out this Court’s power to order costs:

27ACosts

  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.
  1. [8]
    Section 27A confers upon this Court an “unfettered discretion” to order costs. However, section 27A sets the ‘default position’ of this court apart from the default position under Uniform Civil Procedure Rules 1999 (UCPR). Section 681 of the UCPR provides the general rule about costs, and states that “costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the Court orders otherwise”. In contrast, section 27A states that the Land Court may order costs as it considers appropriate but if it does not do so, each party to the proceeding must bear its own costs.
  1. [9]
    As the Land Appeal Court said in Lonergan & Anor v Friese (No 2), the ‘default position’ is therefore that each party should bear its own costs unless I accept the respondent’s submission that in this case, the rule that costs follow the event should be engaged.[2]
  1. [10]
    If a costs application is made, the Court must exercise its discretion without caprice, having regard to relevant considerations and established principles.[3] Section 27A does not establish a ‘general rule’ that each party should bear its own costs.[4]
  1. [11]
    The rule that costs follow the event does not ‘govern’[5] the unfettered discretion of the Court under section 27A. However, this rule is ‘deeply embedded in the law’ and that must be considered.[6] This rule protects those put to unnecessary and substantial expense at the behest of others.[7]
  1. [12]
    Costs orders are not punitive, they are compensatory. They “indemnify the successful party against the expense to which they have been put in the litigation”.[8]

The costs applications

  1. [13]
    The respondent says that I determined the appeal in its favour and seeks an order that the appellant pay the respondent’s costs of and incidental to the proceeding. The respondent says that this order is in accordance with the ‘general rule’ that costs follow the event, and that there is “no reason to take any different course”.[9]
  1. [14]
    The appellant says that there should not be an order as to costs because:
  1. the appellant was partially successful;
  1. after the commencement of this appeal, and on two separate occasions, the respondent conceded or ‘no longer agitated’ a significant number of review decision grounds presumably because they could not be reasonably argued before the Land Court. One of the most important concessions was that the CG Report had not lapsed. The appellant incurred costs in dealing with these grounds prior to the respondent’s concessions and is entitled to its costs; and
  1. the respondent, being a government agency and not a private litigant was only partially successful and the appeal concerns provisions which by the respondent’s own admissions were ‘difficult’.[10]
  1. [15]
    The appellant submits that each party should bear their own costs as the respondent is a government agency, not a private litigant, relying on Goldhounds Mining and Exploration Pty Ltd v Department of Natural Resources, Mines and Energy (No. 2) (Goldhounds).[11]  
  1. [16]
    In Goldhounds, President Kingham took into account that the respondent Department was a government agency and not a private litigant when deciding not to order the applicant to pay the respondent’s costs. However, it was only one factor. Her Honour said in that case that the applicant’s litigation of the matter had a ‘public benefit’ as it clarified the limits of this Court’s jurisdiction which was otherwise unclear. The same cannot be said for this appeal.  There is little if any public benefit arising from the litigation which would sway me in this regard.  The conclusions reached concerning the interaction and operation of ss 125(3) and 125(6) were important to determining the outcome of the dispute.  While this is the only occasion where the operation and interaction of those provisions has been before a court, that is not sufficient reason to conclude there was public benefit in having the issue determined.
  1. [17]
    In the circumstances I do not see any reason why the respondent’s status as a government agency should preclude its ability to be awarded costs.
  1. [18]
    The appellant submits that if the court does not accept that each party should bear their own costs, and if there is an order for costs against the appellant, the court should order that:
  1. The respondent pay the appellant’s costs up to 12 May 2023 regarding:
  1. the lapsing of the Coordinator-General’s Report; and
  1. there being a failure to comply with s 125(1)(n) of the EPA.
  1. The respondent pay the appellant’s costs up to 22 March 2024 regarding:
  1. there being a failure to comply with s 125(1)(c) of the EPA;
  1. there being a failure to comply with s 125(1)(l) of the EPA with respect to:
  1. northern season wetland;
  1. the offset area; and
  1. insufficient assessment of subsequent dependency of its users of shallow water.
  1. there being a failure to comply with s 126A of the EP Act with respect to:
  1. Insufficiency of avoidance, mitigation and management measures to address impacts with take or interference with underground water other than use of compensation agreements and offsets; and
  1. Insufficiency assessment of subsequent dependency of its users of shallow water.

Success of the parties

  1. [19]
    The outcome sought by the appellant was for their application to be deemed ‘properly made’. I found that it was not properly made. I did not however accept all the grounds upon which the respondent said the application was not properly made – this is reflected in order 1(c). Additionally, the respondent conceded or ‘no longer agitated’ some of their arguments following the commencement of the proceeding but before the hearing.
  1. [20]
    The appellant says that the separate issues considered in the appeal, and reflected in my orders, should be differentiated when awarding costs. The respondent, refers to a NSW Court of Appeal decision which said that courts do not generally attempt to differentiate between the issues in which the appellant was successful or unsuccessful unless a particular issue or group of issues is ‘clearly dominant or separable’.[12] This approach has been accepted in the Queensland Supreme Court and I find it persuasive in this case.[13]
  1. [21]
    I accept that the appellant did invest time and resources in considering, researching and developing arguments in relation to issues conceded or won. However, this is part of the ordinary course of litigation in which the position of a party on discrete issues may be modified and arguments abandoned. Where however the core dispute remains, in this case whether the application was properly made, the Court should be “slow” to favour the view that partial success on discrete issues, decided at the hearing or conceded before the hearing, should justify an issues-based cost order.[14] The appellant’s time spent on the issues conceded, ‘no longer agitated’ or “won” are not special circumstances to warrant a departure from the general rule, and there are “good reasons not to encourage applications… on an issue-by-issue basis, involving apportionments based on degrees of difficulty of issues, time taken to argue them and the like”.[15] In relation to the issue not conceded but addressed by order 1(c), the respondent says that this involved a ‘minor aspect’ of the appeal and did not take up a significant part of the hearing or argument. I agree.
  1. [22]
    The appellant also submits that an award of costs in this appeal would be contrary to the purpose of providing an aggrieved person with an avenue to seek a de novo decision.[16] A costs order would discourage aggrieved persons from exercising their right to seek an appeal of ‘all decisions in the same category’ as the review decision in this case. The appellant does not support this argument with any authority from this or any other Court.
  1. [23]
    Section 524 of the EP Act provides the Land Court with jurisdiction to determine the appeal: “a dissatisfied person who is dissatisfied with the review decision may appeal against the decision to the Land Court”.
  1. [24]
    I do not accept the appellant’s argument. Section 524 provides a dissatisfied person with a right of appeal. The existence of a right of appeal does not provide appellants with an indemnity against costs. If an appeal is dismissed and the rule that costs follow the event is engaged, then the appellant will pay costs.

Conclusion

  1. [25]
    In my view the respondent is the successful party in this appeal.
  1. [26]
    The issues conceded by the respondent reflected in orders 1(a) and (b) were conceded 2 months after the appeal was lodged and 1 year before the hearing of the appeal.
  1. [27]
    The substantive outcome of this case is that the appellant’s EA application is not properly made. Although I set aside the review decision (only) in relation to the discrete issues conceded by the respondent, and as reflected on order 1(c), the appellant does not see any material benefit of its success. As Justice Bradley said in Karam,[17] the circumstances do not call for an order that affords the [defendant] less protection because, in the successful defence of its lawful conduct, the [defendant] was unsuccessful… on issues that did not alter the final outcome.
  1. [28]
    I do not see a reason to depart from the well-established rule that costs follow the event. The discrete issues on which the appellant seeks costs were not dominant in this case and do not justify an issues-based costs order.

Orders

  1. The application is allowed. The appellant pay the respondent’s costs of and incidental to the proceeding as agreed or assessed on the standard basis.

Footnotes

[1]MacMines Austasia Pty Ltd v Chief Executive, Department of Environment, Science and Innovation (No 2) [2024] QLC 16 (MacMines Austasia).

[2][2020] QLAC 4.

[3]Queensland Industrial Minerals Pty Ltd v Younger & Ors [2017] QLC 54 [4] (QIM) citing Oshlack v Richmond River Council (1998) 193 CLR 72, 96 and ERO Georgetown Gold Operations Pty Ltd v Henry (No 2) [2016] QLAC 3, 24 (ERO Georgetown).

[4]ERO Georgetown [24].

[5]Mentech Resources Pty Ltd v MCG Resources Pty Ltd (In Liq) (No. 2) (2012) 33 QLCR 43 [4] (Mentech Resources).

[6]QIM [7] citing Anson Holdings Pty Ltd v Wallace & Anor [2010] QLAC 4 at [10].

[7]Mentech Resources [4]; Moreton Bay Regional Council v Mekpine Pty Ltd (2014) 35 QLCR 273 at [12].

[8]QIM [14].

[9]Respondent’s outline of submissions on costs, [2]. 

[10]T1-22, line 38.

[11][2019] QLC 16, [13].

[12]Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 [6]-[8].

[13]Karam Group Pty Ltd Atf The Karam (No. 1) Family Trust v HCA Queensland Pty Ltd (No 2) [2024] QSC 74 [11]-[16] (Karam).

[14]Cidneo Pty Ltd v Chief Executive, Department of Transport and Main Roads (No. 2) [2018] QLAC 9 [6]-[7].

[15]Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) (2015) 327 ALR 192 [6].

[16]Respondent’s submissions [16]-[17].

[17]Karam Group Pty Ltd Atf The Karam (No. 1) Family Trust v HCA Queensland Pty Ltd (No 2) [2024] QSC 74.

Close

Editorial Notes

  • Published Case Name:

    MacMines Austasia Pty Ltd v Chief Executive, Department of Environment, Science and Innovation (No 3)

  • Shortened Case Name:

    MacMines Austasia Pty Ltd v Chief Executive, Department of Environment, Science and Innovation (No 3)

  • MNC:

    [2024] QLC 21

  • Court:

    QLC

  • Judge(s):

    JR McNamara

  • Date:

    30 Oct 2024

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Anson Holdings Pty Ltd v Wallace [2010] QLAC 4
1 citation
Jump To
Cite 1 - [2010] QLAC 4
Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd (No 25) [2020] QLC 22
1 citation
Jump To
Cite 1 - [2020] QLC 22
Cidneo Pty. Ltd. v Chief Executive, Department of Transport and Main Roads (No. 2) [2018] QLAC 9
2 citations
Jump To
Cite 1 - [2018] QLAC 9
Cite 2 - [2018] QLAC 9
Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373
1 citation
Jump To
Cite 1 - [2007] NSWCA 373
ERO Georgetown Gold Operations Pty Ltd v Henry (No. 2) [2016] QLAC 3
2 citations
Jump To
Cite 1 - [2016] QLAC 3
Cite 2 - [2016] QLAC 3
Firebird Global Master Fund II Ltd v Republic of Nauru (2015) 327 ALR 192
2 citations
Jump To
Cite 1 - (2015) 327 ALR 192
Cite 2 - (2015) 327 ALR 192
Goldhounds Mining and Exploration Pty Ltd v Department of Natural Resources, Mines and Energy (No 2) [2019] QLC 16
2 citations
Jump To
Cite 1 - [2019] QLC 16
Cite 2 - [2019] QLC 16
Karam Group Pty Ltd v HCA Queensland Pty Ltd [No 2] [2024] QSC 74
3 citations
Jump To
Cite 1 - [2024] QSC 74
Cite 2 - [2024] QSC 74
Cite 3 - [2024] QSC 74
Lonergan v Friese (No 2) [2020] QLAC 4
2 citations
Jump To
Cite 1 - [2020] QLAC 4
Cite 2 - [2020] QLAC 4
MacMines Austasia Pty Ltd v Chief Executive, Department of Environment, Science and Innovation [2024] QLC 16
1 citation
Jump To
Cite 1 - [2024] QLC 16
Mentech Resources Pty Ltd v MCG Resources Pty Ltd (in liq) (No 2) (2012) 33 QLCR 43
2 citations
Jump To
Cite 1 - (2012) 33 QLCR 43
Cite 2 - (2012) 33 QLCR 43
Moreton Bay Regional Council v Mekpine (2014) 35 QLCR 273
1 citation
Jump To
Cite 1 - (2014) 35 QLCR 273
Oshlack v Richmond River Council (1998) 193 CLR 72
1 citation
Jump To
Cite 1 - (1998) 193 CLR 72
Queensland Industrial Minerals Pty Ltd v Younger [2017] QLC 54
1 citation
Jump To
Cite 1 - [2017] QLC 54

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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.