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  4. Rolleston Coal Holdings Pty Limited v The Deputy Premier, Treasurer and Minister for Aboriginal and Torres Strait Islander Partnerships (No 2) - [2022] QSC 8

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Rolleston Coal Holdings Pty Limited v The Deputy Premier, Treasurer and Minister for Aboriginal and Torres Strait Islander Partnerships (No 2)[2022] QSC 8

Rolleston Coal Holdings Pty Limited v The Deputy Premier, Treasurer and Minister for Aboriginal and Torres Strait Islander Partnerships (No 2)[2022] QSC 8

SUPREME COURT OF QUEENSLAND

CITATION:

Rolleston Coal Holdings Pty Limited & Ors v The Deputy Premier, Treasurer and Minister for Aboriginal and Torres Strait Islander Partnerships (No 2) [2022] QSC 8

PARTIES:

ROLLESTON COAL HOLDINGS PTY LIMITED
ACN 098 156 702

(first applicant)

SUMISHO COAL AUSTRALIA PTY LIMITED
ACN 061 524 249

(second applicant)

ICR AUSTRALIA PTY LTD t/a ITOCHU COAL RESOURCES AUSTRALIA PTY LTD
ACN 072 596 733

(third applicant)

ICRA SMM PTY LTD
ACN 106 260 584

(fourth applicant)

v

THE DEPUTY PREMIER, TREASURER AND MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER PARTNERSHIPS

(respondent)

FILE NO/S:

BS 14131 of 2019 (lead matter)
BS 14133 of 2019
BS 14135 of 2019
BS 14137 of 2019
BS 10372 of 2020
BS 10374 of 2020
BS 10375 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

4 February 2022

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Williams J

ORDER:

THE COURT ORDERS THAT:

  1. The applicants pay the respondent’s costs of the adjournment of the interlocutory application filed 19 October 2021, including costs thrown away by the respondent as a consequence of the adjournment, to be assessed on a standard basis. 
  2. The applicants pay the respondent’s costs thrown away as a consequence of orders 1, 3, 5, 6, 8, 10, 12 and 14 of the order dated 14 December 2021, to be assessed on a standard basis.
  3. The applicants pay the respondent’s costs of the amended interlocutory application filed 5 November 2021, to be assessed on a standard basis.

THE COURT DIRECTS THAT:

  1. The applicants are to file and serve their second further amended originating applications and further Amended Statement of Facts, Issues and Contentions on the respondent by 4.00 pm on 7 February 2022.
  2.  The respondent is to serve his further amended Statement of Facts, Issues and Contentions on the applications by 4:00 pm on 28 February 2022.
  3. The applicants are to deliver any further affidavits of evidence-in-chief upon which they intend to rely by 4:00 pm on 21 March 2022.
  4.  The respondent is to deliver any further affidavits of evidence-in-chief in reply upon which he intends to rely by 4:00 pm on 1 April 2022.
  5. The applicants are to deliver any further affidavits in reply upon which they intend to rely by 4:00 pm on 26 April 2022.
  6. Proceedings are listed for further review in the week commencing 2 May 2022 in the applications list on a 15 minute estimate.
  7. Not less than five business days before the further review, the parties are to attempt to agree directions to be made at the review, including in respect of (as appropriate):
    1. (a)
      written objections to evidence and responses;
    2. (b)
      the trial bundle;
    3. (c)
      a trial plan including available dates.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INTERLOCUTORY PROCEEDINGS – ADJOURNMENT – where each party enjoyed partial success on an interlocutory application – where costs of earlier adjournment reserved – whether costs should follow the event – whether the applicant should pay costs thrown away in relation to the adjournment and the allowed amendments as a consequence of seeking the indulgence of the court

PROCEDURES – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – GENERAL PRINCIPLES AND EXERCISE OF DISCRETION – where the parties provided further submissions on the issue of costs – where each party enjoyed partial success – where there are two events – whether costs should follow the event – whether the applicants should pay the respondent’s costs as a consequence of allowed amendments

Uniform Civil Procedures Rules 1999 (Qld), r 5, r 386, r 681, r 684, r 692

Aklia Holdings Pty Ltd v The Carter Group Pty Ltd (in liq) & Others (No 2) [2017] QSC 266, cited

Alborn & Ors v Stephens & Ors [2010] QCA 58, cited
BHP Coal Pty Ltd v O & K Orenstein & Koppel AG (No 2) [2009] QSC 64, cited

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

Speets Investments v Bencol Pty Ltd (No 2) [2021] QCA 39, cited

Thiess v TCN Channel Nine Pty Ltd (No 5) [1994] 1 Qd R 156, cited

Wollongong Coal Ltd v Gujarat NRE India Pty Ltd (No 2) [2019] NSWCA 173, cited

COUNSEL:

B O'Donnell and M Barnes, for the applicants
M Brennan, and M Hindman, and S Amos, for the respondent

SOLICITORS:

King & Wood Mallesons for the applicants

Crown Law for the respondent

  1. [1]
    On 14 December 2021 I published reasons in relation to interlocutory applications brought in seven proceedings commenced by way of originating applications for statutory orders of review and declarations. 
  1. [2]
    On 15 December 2021, orders were made in each of the proceedings to reflect the reasons as follows:

“THE ORDER OF THE COURT IS THAT:

Application for leave to Amend

Proceeding BS14131/19 (Newlands)

  1.  The applicants have leave to amend their Application for Statutory Order of Review in accordance with the amendments to grounds 1, 2, 3A, 10, 12, and the second limb of ground 6 set out in exhibit HJM-A.42 to the affidavit of Hamish Macpherson sworn 4 November 2021 (Macpherson Affidavit).
  1.  Leave to otherwise amend grounds 6, 7, and 8 of the Application for Statutory Order of Review as set out in exhibit HJM-A.42 to the Macpherson Affidavit is refused.

Proceeding BS14133/19 (Collinsville)

  1.  The applicants have leave to amend their Application for Statutory Order of Review in accordance with the amendments to grounds 1, 2, 3A, 12 and the second limb of ground 6 set out in exhibit HJM-A.43 to the Macpherson Affidavit.
  1.  Leave to otherwise amend grounds 6, 7 and 8 of the Application for Statutory Order of Review as set out in exhibit HJM-A.43 is refused.

Proceeding BS14135/19 (Rolleston)

  1.  The applicants have leave to amend their Application for Statutory Order of Review in accordance with the amendments to grounds 1, 2 and 3A set out in exhibit HJM-A.44 to the Macpherson Affidavit.

Proceeding BS14137/19 (Oaky Creek)

  1.  The applicants have leave to amend their Application for Statutory Order of Review in accordance with the amendments to grounds 1, 2, 3A, 12, and the second limb of ground 6 as set out in exhibit HJM-A.45 to the Macpherson Affidavit.
  1.  Leave to otherwise amend grounds 6, 7 and 8 of the Application for Statutory Order of Review as set out in exhibit HJM-A.45 to the Macpherson Affidavit is refused.

Proceeding BS10372/20 (Oaky Creek)

  1.  The applicants have leave to amend their Application for Statutory Order of Review in accordance with the amendments to ground 12 set out in exhibit HJM-A.46 to the Macpherson Affidavit.
  1.  Leave to amend grounds 7 and 8 of the Application for Statutory Order of Review as set out in exhibit HJM-A.46 to the Macpherson Affidavit is refused.

Proceeding BS10374/20 (Newlands)

  1.  The applicants have leave to amend their Application for Statutory Order of Review in accordance with the amendments to ground 12 set out in exhibit HJM-A.47 to the Macpherson Affidavit.
  1.  Leave to amend grounds 7 and 8 of the Application for Statutory Order of Review as set out in exhibit HJM-A.47 to the Macpherson Affidavit is refused.

Proceeding BS10375/20 (Collinsville)

  1.  The applicants have leave to amend their Application for Statutory Order of Review in accordance with the amendments to ground 12 set out in exhibit HJM-A.48 to the Macpherson Affidavit.
  1.  Leave to amend grounds 7 and 8 of the Application for Statutory Order of Review as set out in exhibit HJM-A.48 to the Macpherson Affidavit is refused.

All Proceedings (BS14131/19; BS14133/19; BS14135/19; BS14137/19; BS10372/20; BS 10374/20; BS10375/20)

  1.  The applicants have leave to amend their Amended Statement of Facts, Issues and Contentions in accordance with grounds 1, 2, 3A, 10, 12, and the second limb of ground 6 set out in exhibit HJM-A.49 to the Macpherson Affidavit.
  1.  Leave to otherwise amend the Amended Statement of Facts, Issues and Contentions is refused.

Application for disclosure

  1.  The application for disclosure of the documents listed in paragraphs 1(c)(v) and 2A of the amended application is dismissed.”
  1. [3]
    Directions were also made for the delivery of further submissions in respect of costs, including reserved costs, and directions for the future conduct of the proceedings.  Submissions and further affidavits were received from the parties. 
  2. [4]
    Further, the parties agreed that no further hearing was required and the outstanding issues could be dealt with on the papers.
  3. [5]
    The applicants seek the following orders in respect of costs:

“THE ORDER OF THE COURT IS THAT:

  1.  The applicants pay the respondent’s costs thrown away by reason of the adjournment of the interlocutory application on 1 November 2021, to be assessed on a standard basis.
  1.  There be no order as to the other costs of the amended interlocutory application filed 5 November 2021.”
  1. [6]
    The applicants also outline the directions sought for the future conduct of the proceeding.
  2. [7]
    The respondent seeks the following orders in respect of costs:

“THE ORDER OF THE COURT IS THAT:

  1.  The applicants pay the respondent’s costs of the adjournment of the interlocutory application filed 19 October 2021, including costs thrown away by the respondent as a consequence of the adjournment, to be assessed on a standard basis.
  1.  The applicants pay the respondent’s costs of the amended interlocutory application filed 5 November 2021, to be assessed on a standard basis.
  1.  The applicants pay the respondent’s costs thrown away as a consequence of orders 1, 3, 5, 6, 8, 10, 12 and 14 of the order dated 14 December 2021, to be assessed on a standard basis.”
  1. [8]
    The respondent also outlines the directions sought.  The directions are in the same terms as the applicants’ except for the dates for the steps to be completed.
  2. [9]
    The hearing of the application on 30 November 2021 and the reasons for decision delivered on 14 December 2021 dealt with two substantive issues:
    1. (a)
      Leave to further amend the originating applications and the applicants’ Amended Statement of Facts Issues and Contentions (ASFIC); and
    2. (b)
      Orders for disclosure of documents by the respondent.
  3. [10]
    As is evident from the previous reasons and the orders, the outcome in respect of both these issues was mixed.
  4. [11]
    Pursuant to r 681 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), the Court has a broad discretion in relation to costs.  It is necessary to consider the various factors relevant to the exercise of that broad discretion in these circumstances.
  5. [12]
    I will first consider the issue of costs and will then deal with the directions for the future conduct of the matter.

Applicants’ position

  1. [13]
    The applicants submit that where there are two or more issues or questions in the action then each of them may give rise to an “event” for which costs are to be determined separately.[1]
  2. [14]
    Further, r 684 UCPR permits the Court to make an order for costs in relation to a particular question or particular part of a proceeding.  Overall, the applicants submit that having regard to the “mixed success” on the issues, the appropriate order is that each party bear its own costs and that there be no order as to costs.
  3. [15]
    In support of the outcome, the applicants refer to the comments of Muir JA in Alborn & Ors v Stephens & Ors[2] where his Honour stated:

“… a party which has not been entirely successful is not inevitably or even, perhaps, normally deprived of some of its costs.”

  1. [16]
    Further, reliance is placed on the observations of Bond J, with whom Sofronoff P and Callaghan J agreed, in Speets Investments v Bencol Pty Ltd (No 2)[3] which states at [17]:

“Of course, it does not follow that an issues-based costs order should always be made in circumstances analogous to those described by McMurdo J in BHP Coal Pty Ltd v O & K Orenstein & Koppel AG (No 2). Where there are multiple issues which are determined in different directions as between the parties, a court might form an overall impression having regard to the significance of the issues, the way they were determined, and the amount of time and cost spent on them, and order one party to pay a proportion of another party’s costs as a way to reflect fairly the parties’ comparative success or failure in the outcome which was obtained. Courts often prefer to avoid the complicated form of costs assessment that would follow if different issues are determined in different directions as between the parties and costs were to be awarded in respect of issues. In this regard, in Wollongong Coal Ltd v Gujarat NRE India Pty Ltd (No 2) [2019] NSWCA 173, the New South Wales Court of Appeal observed at [9] where taking such an approach might result in a protracted assessment process:

‘… It is more efficient, and fairer, for the court simply to net-off [orders for issues in different directions as between the parties], which it is entitled to do (see Day v Humphrey [2018] QCA 321 at [13] per the court). Such an assessment will, undoubtedly be ‘rough and ready’ (Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107 at [5]), and that is entirely permissible’.”

  1. [17]
    In respect of the application for leave to amend, the applicants contend that they were given leave to amend five of the eight grounds they sought to amend and to partially amend one further ground.  It is acknowledged that leave was refused with respect to two amendments and one partial amendment. 
  2. [18]
    It is also submitted that the amendments for which leave was refused were interrelated and adopted similar wording.  It is submitted that they could be treated as a single event or issue for the purposes of determining the parties’ relative success.
  3. [19]
    Further, the applicants acknowledge that the UCPR provides that the applicants must pay the respondent’s costs thrown away by the allowed amendments.[4]  It is submitted that there is no need for a specific order dealing with that aspect.
  4. [20]
    In respect of the application for disclosure, the applicants sought disclosure of two categories of documents.  In respect of the first category of documents, it is contended that nine of the 13 subcategories were ordered to be disclosed and some additional documents were proffered by the respondent.  One of the subcategories was refused and three subcategories were not pressed.  In respect of the second category of disclosure sought, the applicants were unsuccessful.
  5. [21]
    The applicants contend that prior to filing the application the respondents had declined to produce the documents sought.  Further, that opposition to disclosure was maintained.  It was only during the course of oral addresses that the respondent’s position changed in respect of some of the subcategories sought (on an open basis). 
  6. [22]
    In these circumstances, the applicants contend that they were justified in bringing the application and that ultimately the applicants succeeded in obtaining an order for production of documents that the respondents had refused to produce voluntarily.
  7. [23]
    Overall the applicants contend that neither party was wholly successful on either part of the application and that to avoid a protracted assessment of the costs associated with each issue or event that the appropriate order is to require each party to bear their own costs.

Respondent’s position

  1. [24]
    The respondent seeks specific costs orders in respect of the adjournment of the interlocutory application and the costs thrown away by reason of the amendments to the originating applications and the ASFIC in respect of the grounds for which leave has been granted.  Further, the respondents seek costs of the amended interlocutory application on a standard basis.
  2. [25]
    It is submitted that the costs reserved by Applegarth J on 28 October 2021 in respect of the adjournment of the interlocutory application should be specifically dealt with. 
  3. [26]
    This aspect ultimately is not contentious between the parties, except as to the particular wording of the order.  The order sought by the respondent includes costs thrown away by the respondent as a consequence of the adjournment.  This mirrors the reservation of costs by Applegarth J on 28 October 2021.
  4. [27]
    As to costs more generally, the respondent points to the summary of the general legal principles by Bond J in Aklia Holdings Pty Ltd v The Carter Group Pty Ltd (in liq) & Others (No 2)[5] where his Honour stated as follows:

“…

  1. (a)
     Costs of an application in a proceeding are in the discretion of the Court but follow the event unless the court orders otherwise: UCPR r 681. 
  1. (b)
     The  word  ‘event’  is  to  be  approached  distributively  with  the  consequence  that  it refers to the event of an issue or of each separate issue, if there is more than one, in the proceeding.
  1. (c)
     The  application  of  the  general  principle  may  lead  to  costs  orders  which  reflect different  results  on  separate  events  or  issues,  unless  the  Court  considers  that  some other order is more appropriate.
  1. (d)
     The circumstances which a Court might consider in determining whether some other order is more appropriate, and, if so, its form include:
  1. (i)
     the preference to avoid the complicated form of assessment that would follow if different issues are determined in different directions as between the parties  and costs were to be awarded in respect of issues in the technical sense;
  1. (ii)
     the  possibility  of  taking  the  approach  of  identifying  heads  of  controversy  or ‘units  of  litigation’  (rather  than  what  might  technically  be  regarded  as  issues on the pleadings) as the criterion for awarding costs;
  1. (iii)
     where  a  party  has  succeeded  on  one  of  two  ways  to  the  same  outcome  in  a particular unit of litigation, a court might regard the costs of the second way on which  that  party  failed  as  not  so  distinct  conceptually  or  practically  as  to warrant making a costs order which reflected that party’s failure on the second avenue of success; and
  1. (iv)
     on  the  other  hand,  where,  in  a  particular  unit  of  litigation,  there  are  multiple issues  which  are  determined  in  different  directions  as  between  the  parties,  a court might form an overall impression having regard to the significance of the issues, the way they were determined, and the amount of time and cost spent on them, and order one party to pay a proportion of another party’s costs as a way to  reflect  fairly  the  parties’  comparative  success  or  failure  in  the  outcome which was obtained.”
  1. [28]
    Reference is also made to r 684 UCPR as to the Court’s power to order costs in relation to a particular question in or a particular part of a proceeding.  It is recognised that the Court may order a percentage of the costs attributable to the particular question or part of the proceeding.
  2. [29]
    The respondent contends that whilst leave was granted to amend grounds 1, 2, 10 and 12, the respondent did not oppose and consented respectively to those amendments from the outset.  Accordingly, it is submitted no costs were incurred in contesting those amendments. 
  3. [30]
    In respect of the remaining grounds, leave to amend ground 3A and the second limb of ground 6 was granted and otherwise leave to amend was refused.  These amendments were opposed by the respondent.  In light of the outcome, the respondent contends that the applicants were not successful on the application on an overall basis.
  4. [31]
    Further, the respondent submits that the applicants sought the indulgence of the Court long after the proceedings were commenced.   In such circumstances, the usual rule is that a party seeking such an order will bear the costs of the application.  In the circumstances of this case, the respondent submits departure from that usual approach is not warranted.[6] 
  5. [32]
    The respondent also relies on a without prejudice offer that was made on 29 November 2021 in relation to the amended interlocutory application.  This is discussed further below.
  6. [33]
    In respect of disclosure, the respondent consented to a direction to provide the documents sought in sub-paragraphs (i), (ii) and (iv) of paragraphs 1(a), 1(b) and 1(c) and two documents responsive to paragraph 2A.  Otherwise, the applicants were unsuccessful in respect of their application for disclosure.
  7. [34]
    The respondent refers to the history of the application for relevant context.  The original interlocutory application filed 19 October 2021 sought disclosure of the documents referred to in paragraphs 1(a) to (c). 
  8. [35]
    The foreshadowed amendments to the interlocutory application which prompted the adjournment were the inclusion of paragraph 1A seeking leave to amend the originating applications, and the ASFIC and paragraph 2A seeking additional disclosure.  The amended interlocutory application was filed on 5 November 2021.
  9. [36]
    On 29 November 2021, the respondent served a without prejudice offer, being the next business day after receiving the applicants’ reply submissions.  These reply submissions were in effect the applicants’ substantive submissions as they addressed all issues raised in the amended interlocutory application and reflected the position maintained by the applicants at the hearing.  
  10. [37]
    It is in these circumstances that the respondent contends that, had the without prejudice offer been accepted, then the hearing only would have needed to deal with an unopposed grant of leave to amend and for the parties to address the outstanding issues on disclosure.  The outstanding issue on disclosure was in effect the component of the application for disclosure upon which the applicants were unsuccessful.
  11. [38]
    In submissions, the respondent takes a similar approach to the usual rule of costs following the “event” and contends that there are two events for the purposes of r 681 UCPR.  That is, leave to amend and disclosure.  It is submitted that the applicants were not successful on either event. 
  12. [39]
    It is in these circumstances that the respondent contends that the applicants should pay the costs of the application on the standard basis and there are no circumstances justifying the departure from the general rule.
  13. [40]
    Further, the respondent accepts that it is not ordinarily necessary to make an express order under r 692(2) UCPR but given the history of the amendments in this matter and for clarity, the respondents seek a specific order that the applicants pay the costs thrown away as a result of the amendments for which leave is granted being grounds 1, 2, 3A, 6, 10 and 12.

Reply submissions

  1. [41]
    Both parties filed submissions in reply.
  2. [42]
    The applicants in reply maintain the position that there should be no orders as to costs.  In support of this outcome, they point to a number of additional factors:
    1. (a)
      “The usual rule” that a party seeking an indulgence must pay the respondent’s costs is no more than a guiding principle.  It is submitted that the circumstances of this case, particularly where the respondent opposed the amendments in respect of ground 3A and the second limb of ground 6 where leave was ultimately granted, support an outcome that there be no order as to costs.
    2. (b)
      The applicants were justified in bringing the application for disclosure because the respondent refused to provide the documents when asked in correspondence before the application was filed.  The applicants contend that “success” should be measured by what was obtained through the making of the application, not what was ultimately contested.
    3. (c)
      The respondent’s offer should not have any influence on the exercise of the Court’s discretion.  It is contended that the offer is not better than the “judgment” which was made less than 24 hours before the hearing and was only open for a short period of time.  In the circumstances, it is contended that it was not unreasonable not to accept the offer.
  3. [43]
    The applicants maintain that an order for the costs thrown away as a result of the amendments is not necessary but accepts that the respondent should have those costs.
  4. [44]
    Further, the applicants accept that they should be required to pay the costs of the adjournment of the application.  However, they contend for a narrower form of order which does not include “including costs thrown away by the respondent as a consequence of the adjournment”.
  5. [45]
    The respondent’s submissions in reply address the contention raised by the applicants that they were justified in bringing the application on the basis that they succeeded in obtaining an order for documents which the respondent refused to provide voluntarily. 
  6. [46]
    The respondent maintains his position on costs and points to the background to the application in support of that position, including:
    1. (a)
      The applicants requested disclosure prior to applying to amend their pleadings.
    2. (b)
      At the time of the initial request for disclosure of the assessment notices, the respondent provided the notices as requested.  The applicants then sought additional disclosure “to allow pleadings to be distilled”.
    3. (c)
      The respondent refused to provide the disclosure voluntarily because the request constituted a “fishing expedition” and raised matters irrelevant to the grounds of review (as then formulated) or any grounds attempting to impugn the assessments or the gross value royalty decisions.
    4. (d)
      The interlocutory application was amended to include an application for leave to amend the originating applications and ASFIC. 
    5. (e)
      Following the amended interlocutory application and the substantive reply submissions, the respondent promptly made the offer to provide disclosure in terms largely consistent with what was ultimately ordered by the Court.

Consideration

  1. [47]
    The following factors are relevant to the consideration of the exercise of the Court’s discretion in relation to costs:
    1. (a)
      The applicants originally sought disclosure of the documents identified in paragraph 1(a) to (c) of the interlocutory application.
    2. (b)
      The interlocutory application was adjourned to allow the applicants the opportunity to amend the interlocutory application to include an application for orders for leave to amend the originating applications and the ASFIC as well as further disclosure of documents.
    3. (c)
      Following the adjournment, the amended interlocutory application and further affidavits and submissions were filed, including the applicants’ reply submissions.
    4. (d)
      The proceedings were well advanced with evidence already filed and the respondent sought the indulgence of the Court to amend the originating applications and ASFIC.
    5. (e)
      The respondent did not oppose the proposed amendments to grounds 1, 2, 10 and 12.  No costs were incurred in respect of those amendments sought.
    6. (f)
      The applicants were successful in obtaining leave to amend ground 3A and the second limb of ground 6 but were otherwise unsuccessful in respect of the amendments sought.
    7. (g)
      The respondent consented to disclosure of documents in respect of sub paragraphs (i), (ii) and (iv) of paragraphs 1(a), (b) and (c) and two documents in respect of paragraph 2A, otherwise the application for disclosure was dismissed.
  2. [48]
    It is not contentious that the applicants should pay the respondent’s costs of the adjournment of the interlocutory application filed 19 October 2021 which were reserved by Applegarth J on 28 October 2021.  The difference between the parties is the inclusion of the words “including costs thrown away by the respondent as a consequence of the adjournment”.  This is sought by the respondent but opposed by the applicants. 
  3. [49]
    The original order of Applegarth J included that phrase.  In these circumstances, I consider that the appropriate order is the order sought by the respondent, including costs thrown away by the respondent as a consequence of the adjournment. 
  4. [50]
    Further, in respect of the costs thrown away as a consequence of the amendments which were allowed, I consider it is appropriate that a specific costs order dealing with this be made for the avoidance of any doubt.  The order sought by the respondent in respect of the costs thrown away as a consequence of orders 1, 3, 5, 6, 8, 10, 12 and 14 of the order dated 14 December 2021 should be made.
  5. [51]
    More generally, it is also relevant to the considerations of the issues in respect of costs that the application was listed in the civil list on the basis that the estimate for the hearing of the interlocutory applications would exceed the two hour limit in the applications list.  The hearing did ultimately take approximately one day.
  6. [52]
    The respondent submits that if the respondent’s offer had been accepted, then what would have proceeded at the hearing would be a short appearance to seek, unopposed, the indulgence of the Court to grant leave to amend and for the parties to address the outstanding issues on disclosure. 
  7. [53]
    In those circumstances, while the hearing in relation to paragraph 2A of the amended interlocutory application would still have needed to be heard and dealt with, this would have substantially shortened the Court’s time in hearing the submissions from the parties but also reduced the time required in respect of the preparation of written reasons to deal with the contested issues between the parties.
  8. [54]
    Further, in support of the position taken by the applicants that each party bear their own costs in relation to the amended interlocutory application, the solicitors for the applicants served a without prejudice offer on 14 December 2021.  This offer was served to avoid both parties incurring the costs of providing the submissions on costs and is stated to be made in circumstances where “there is a strong likelihood that the order will be that there be no order as to costs”.
  9. [55]
    It is also relevant to consider r 5 UCPR and the overriding obligation in respect of the expeditious and efficient conduct of the proceedings. 
  10. [56]
    As pointed out by the respondent, the applicants’ reply submissions were in effect the applicants’ substantive submissions.  The way the interlocutory application progressed resulted in some inefficiencies. 
  11. [57]
    Following receipt of the applicants’ reply submissions, the respondent made a without prejudice offer in respect of the amended interlocutory application which included the respondent not opposing the proposed amendments.  Had the applicants accepted this offer, then subject to the Court being satisfied, they would have been in a position to amend the originating applications and ASFIC in a manner broader than the orders that were made following the hearing.
  12. [58]
    In submissions, the applicants say that there was no concession made by the respondent in respect to the proposed amendments.  However, if the hearing had proceeded on the basis there was no opposition to the proposed amendments, then the ultimate hearing would have been substantially reduced.  At the hearing, a substantial part of the day was taken up in respect of the aspects of the proposed amendments upon which the applicants were ultimately unsuccessful.
  13. [59]
    Further, the offer also contained consent to providing substantially the same documents which were ultimately consented to being provided at the hearing in respect of paragraph 1 of the amended interlocutory application.  Further, in respect of paragraph 2A of the amended interlocutory application, the offer also included disclosure of identified documents consistent with what was also consented to at the hearing.
  14. [60]
    Again, if the offer had been accepted then the hearing would have been substantially reduced.
  15. [61]
    While it would have been necessary for the hearing to proceed in relation to at least the documents sought in paragraph 2A, the scope of submissions would have been substantially narrower than what ultimately proceeded at the hearing and the time for the hearing would have been significantly reduced.
  16. [62]
    The without prejudice offer does not operate strictly under the UCPR but I consider it is a factor relevant to the exercise of the Court’s discretion as discussed above.
  17. [63]
    It is also relevant to the exercise of this Court’s discretion to consider the orders upon which the various parties were successful and unsuccessful.
  18. [64]
    The proposed amendment to ground 3A was said to be a variation on the existing ground 3.  While there were some arguments against the amendment, including the lack of clarity and precision in the ground, ultimately the amendment was allowed as the issues raised could be dealt with at the final hearing. 
  19. [65]
    The inclusion of the second part of ground 6 was more by way of clarification to provide for the insertion of the new “primary position” which was covered in the first part of ground 6.  To the extent that the second limb of ground 6 was merely a clarification of a ground that was already included, if that was the only amendment that had been sought in ground 6 then it is likely that it would not have been as contentious.  It was the inclusion of the first part of ground 6 as a primary position which was highly contentious.
  20. [66]
    As ought to be apparent from the reasons delivered on 14 December 2021, the amendments sought in relation to the first limb of ground 6 and grounds 7 and 8, were objectionable.  Further, these proposed amendments sought to substantially widen the case being run by the applicants and the proposed amendments were not sufficiently clear to justify the amendments being allowed.  The respondent pointed to actual prejudice if the amendments were allowed in the form proposed.
  21. [67]
    The amendments which were disallowed in relation to the first limb of ground 6, and grounds 7 and 8 were substantive and took up a considerable amount of time at the hearing.
  22. [68]
    Further, the applicants were unsuccessful in relation to the documents sought to be disclosed in paragraph 2A.  This component of the application was distinct and took up a reasonable amount of time at the hearing.  If the hearing had proceeded substantially in relation to this component of the application, given the ultimate outcome, the respondent would have been entitled to costs.
  23. [69]
    Whilst the applicants did get the benefit of orders in respect of parts of both “events”, the overall circumstances of the case require a broader approach to the exercise of the discretion in relation to costs.
  24. [70]
    The applicants contend that it is appropriate to take a “broad brush” or a “rough and ready” approach to assessing the issues and events.  I agree with that approach.  However, I disagree with the applicants on the outcome of that exercise.
  25. [71]
    On balance, the overall circumstances and the interrelated aspects of both the application for leave to amend and also the disclosure application, how the application progressed and that the application was brought when the proceedings were well-advanced, I consider that the appropriate order is the form of order proposed by the respondent.  That is, that the applicants pay the respondent’s costs of the amended interlocutory application filed on 5 November 2021 to be assessed on a standard basis.

Directions

  1. [72]
    As indicated previously, the parties have agreed on the directions for the future conduct of the matter.
  2. [73]
    What was not in agreement was the dates for various steps to be completed.  Given the effluxion of time over the Christmas vacation period, the issue of the appropriate dates has largely fallen away.
  3. [74]
    In the circumstances, it is appropriate to make the directions on the dates proposed by the applicants with some minor amendments:
    1. (a)
      The direction providing for the applicants to file and serve their second further amended originating applications and further Amended Statement of Facts, Issues and Contentions on the respondent by 4:00 pm on 4 February 2022 has been amended to Monday 7 February 2022.  This date is reasonable as steps should have been taken to prepare the amended documents in anticipation of this decision. 
    2. (b)
      The direction providing for the applicants’ further affidavits in reply to be filed by 25 April 2022 has been amended to 26 April 2022 given the Anzac Day public holiday.
    3. (c)
      The direction in relation to a further review has been amended to include that it be listed in the applications list on an estimate of 15 minutes.  If that estimate needs to be revised, the parties should notify the applications list manager as soon as possible. 
  4. [75]
    Accordingly:

THE COURT ORDERS THAT:

  1. The applicants pay the respondent’s costs of the adjournment of the interlocutory application filed 19 October 2021, including costs thrown away by the respondent as a consequence of the adjournment, to be assessed on a standard basis.
  2. The applicants pay the respondent’s costs thrown away as a consequence of orders 1, 3, 5, 6, 8, 10, 12 and 14 of the order dated 14 December 2021, to be assessed on a standard basis.
  3. The applicants pay the respondent’s costs of the amended interlocutory application filed 5 November 2021, to be assessed on a standard basis.

THE COURT DIRECTS THAT:

  1. The applicants are to file and serve their second further amended originating applications and further Amended Statement of Facts, Issues and Contentions on the respondent by 4.00 pm on 7 February 2022.
  2. The respondent is to serve his further amended Statement of Facts, Issues and Contentions on the applications by 4:00 pm on 28 February 2022.
  3. The applicants are to deliver any further affidavits of evidence-in-chief upon which they intend to rely by 4:00 pm on 21 March 2022.
  4. The respondent is to deliver any further affidavits of evidence-in-chief in reply upon which he intends to rely by 4:00 pm on 1 April 2022.
  5. The applicants are to deliver any further affidavits in reply upon which they intend to rely by 4:00 pm on 26 April 2022.
  6. Proceedings are listed for further review in the week commencing 2 May 2022 in the applications list on a 15 minute estimate.
  7. Not less than five business days before the further review, the parties are to attempt to agree directions to be made at the review, including in respect of (as appropriate):
    1. (a)
      written objections to evidence and responses;
    2. (b)
      the trial bundle;
    3. (c)
      a trial plan including available dates.

Footnotes

[1] Thiess v TCN Channel Nine Pty Ltd (No 5) [1994] 1 Qd R 156 at 207-208.

[2]  [2010] QCA 58 at [8] with Holmes JA (as the Chief Justice then was) and Daubney J agreeing with the reasons of Muir JA.

[3]  [2021] QCA 39.

[4]  The relevant rule is r 692(2) UCPR, not r 386 UCPR referred to in the applicants’ submissions.

[5]  [2017] QSC 266 at [4].

[6] President’s Club Limited v Palmer Coolum Resort (No 2) [2020] QSC 11 at [43]-[44], [49]-[51].

Close

Editorial Notes

  • Published Case Name:

    Rolleston Coal Holdings Pty Limited & Ors v The Deputy Premier, Treasurer and Minister for Aboriginal and Torres Strait Islander Partnerships (No 2)

  • Shortened Case Name:

    Rolleston Coal Holdings Pty Limited v The Deputy Premier, Treasurer and Minister for Aboriginal and Torres Strait Islander Partnerships (No 2)

  • MNC:

    [2022] QSC 8

  • Court:

    QSC

  • Judge(s):

    Williams J

  • Date:

    04 Feb 2022

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
Aklia Holdings Pty Ltd v The Carter Group Pty Ltd (in liq) (No 2) [2017] QSC 266
2 citations
Jump To
Cite 1 - [2017] QSC 266
Cite 2 - [2017] QSC 266
Alborn v Stephens [2010] QCA 58
2 citations
Jump To
Cite 1 - [2010] QCA 58
Cite 2 - [2010] QCA 58
BHP Coal Pty Ltd v O & K Orenstein & Koppel AG (No 2) [2009] QSC 64
1 citation
Jump To
Cite 1 - [2009] QSC 64
Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107
1 citation
Jump To
Cite 1 - [2008] FCAFC 107
Day v Humphrey [2018] QCA 321
1 citation
Jump To
Cite 1 - [2018] QCA 321
Speets Investment Pty Ltd v Bencol Pty Ltd (No 2) [2021] QCA 39
2 citations
Jump To
Cite 1 - [2021] QCA 39
Cite 2 - [2021] QCA 39
The President's Club Ltd v Palmer Coolum Resort Pty Ltd (No 2) [2020] QSC 11
2 citations
Jump To
Cite 1 - [2020] QSC 11
Cite 2 - [2020] QSC 11
Thiess v TCN Channel Nine Pty Ltd (No 5) [1994] 1 Qd R 156
2 citations
Jump To
Cite 1 - [1994] 1 Qd R 156
Cite 2 - [1994] 1 Qd R 156
Wollongong Coal Ltd v Gujarat NRE India Pty Ltd (No 2) [2019] NSWCA 173
2 citations
Jump To
Cite 1 - [2019] NSWCA 173
Cite 2 - [2019] NSWCA 173

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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