LAND COURT OF QUEENSLAND

CITATION:	Henry v ERO Georgetown Gold Operations Pty Ltd [2016] QLC 17	
		
PARTIES:	Thomas Peter Henry
(applicant)	
		
	v	
		
	ERO Georgetown Gold Operations Pty Ltd
CAN 104 826 959
(respondent)	
		
FILE NO:	MRA036-14	
		
DIVISION:	General Division	
		
PROCEEDING:	Application for costs	
		
DELIVERED ON:	10 March 2016	
		
DELIVERED AT:	Brisbane	
		
HEARD ON:	Heard on the papers
Submissions closed 17 July 2015	
		
HEARD AT:	Brisbane	
		
MEMBER:	PA Smith	
		
ORDERS:	1.	The respondent pay the applicant’s costs of and incidental to these proceedings to be agreed or failing such agreement to be assessed on the standard basis, subject to Order 2.
2.	Each party bear their own costs of and incidental to an application filed by the applicant on 10 July 2014 that the hearing of this matter be adjourned.	
		
CATCHWORDS:	COSTS – Costs provisions under sections 283B(3) and 281(7) Mineral Resources Act 1989 – similar legal principles with s 34 Land Court Act 2000 – application for compensation for a material change of circumstances for a mining lease – factors governing discretion regarding costs – degree of success a significant factor but not the default position

COSTS – Calderbank offers at common law – whether the rejection of Calderbank offers was unreasonable or imprudent – whether applicant entitled to indemnity costs

COSTS – applicant successful with substantive costs order – whether respondent is entitled to its costs of specific applications/actions of the applicant that were unsuccessful or withdrawn – consideration of the issues – applicant found to have acted reasonably – no basis for awarding costs against applicant on individual applications/actions

City of Brisbane Town Planning Act 1964
Land Court Act 2000
Mineral Resources Act 1989
State Development and Public Works Organisation and Other Legislation Amendment Act 2015

Anson Holdings Pty Ltd v Wallace and Anor (No 2) (2010) 31 QLCR130
BHP Billiton Mitsui Coal Pty Ltd v Isdale and Others (2015) QSC 107
BHP Queensland Coal Investments Pty Ltd v Cherwell Creek Coal Pty Ltd (No 2) (2009) QLAC 8
Calderbank v Calderbank (1976) 3 All ER 333
Dunn v Burtenshaw (2010) QLAC 5
ERO Georgetown Gold Operations Pty Ltd v Thomas Peter Henry (2015) QLAC 4
Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435
Henry v ERO Georgetown Gold Operations Pty Ltd (2015) QLC 13
J & D Rigging Pty Ltd v Agripower Australia Limited & Ors (2014) QCA 23
Ostroco v Department of Transport and Main Roads (No 3) (2014) QLAC 7  
PT Limited and Westfield Limited v Department of Natural Resources and Mines (2007) 28 QLCR 295 at (22)
Reeves v O’Riley (2013) QCA 285
Starr v Appleton (2009) QLC 102
Wallace v Anson Holdings Pty Ltd (2011) QLC 11
Wyatt v Albert Shire Council (1986) 1 Qd R 486 
Xstrata Coal Queensland Pty Ltd v Friends of the Earth – Brisbane Co-Op Ltd (No 2) (2012) 33 QLCR 409	
		
APPEARANCES:	Not applicable	
		
SOLICITORS:	Emanate Legal for the applicant
Miller Harris for the respondent	

Background

[1]	This is an application for costs. I handed down my judgement in the substantive matter on 13 May 2015. 
[2]	The applicant owns Flat Creek Station and the respondent holds a mining lease (ML 30124) which covers part of the applicant’s property. The respondent pays compensation to the applicant in accordance with a compensation agreement. The dispute was whether the applicant was entitled to additional compensation as a result of the respondent barring access to a formation (road) on the mining lease that was used by the applicant.
[3]	The substantive matter was complicated and difficult to assess. It necessitated my assessment as to whether the formation was a public right of access (road) used by the applicant; whether the barring of the road was a material change in circumstances for the mining lease; an assessment of which prior compensation agreement was applicable to the situation; and a determination of the loss suffered by the applicant as a result of being denied access to the road. 
[4]	The applicant was successful and I determined pursuant to s 283B Mineral Resources Act 1989 (MRA) (and alternatively under s 363 MRA less 10%) that he was entitled to additional compensation from the respondent in the sum of $37,907.10, plus an amount of $3,954.62 per month from 14 July 2014 until the re-opening of the formation (road).
[5]	The respondent appealed the court’s decision to the Land Appeal Court. On the 27 November 2015 the Land Appeal Court dismissed the respondent’s appeal.
[6]	With respect to the Land Court hearing, the applicant has applied for his costs of and incidental to the proceedings on the indemnity basis or alternatively on the standard basis. The respondent resists any award of costs in favour of the applicant and seeks its costs thrown away from four applications/actions of the applicant during the proceedings. The applicant submits it should not be liable to pay the respondent’s costs with respect to the four applications/actions but does concede in its unsuccessful application to adjourn the hearing date, that each party should bear their own costs. 

Statutory Framework

[7]	Section 34 of the Land Court Act 2000 (LCA) provides that:
34	Costs

(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.

[8]	Sections 281(1) and (7) of the MRA provide that:
281	Determination of compensation by Land Court

(1)	At any time before an agreement is made pursuant to section 279 or 280, a person who could be a party to such agreement may apply in writing to the chief executive to have the Land Court determine the amount of compensation and the terms, conditions and times of payment thereof.

...
(7)	The Land Court shall give written notice of its determination to all parties and may make such order as to costs between the parties to the determination as it thinks fit.

[9]	Sections 283B (1), (2) and (3) MRA provide that:
283B	Review of compensation by Land Court

(1)	This section applies if –
(a)	compensation has been agreed under section 279 or 280 or determined under section 281 or 282 for a mining lease (the original compensation); and

(b)	there has, since the agreement or determination, been a material change in circumstances for the mining lease.

(2)	The mining lease holder or any owner in relation to the mining lease mentioned in section 279(1)(a) or 280(1) may apply to the Land Court for it to review the original compensation.

(3)	Sections 281(3) to (7), 282 and 282A apply with necessary changes, to the review as if it were an application under section 281(1).
[10]	Pursuant to s 283B(3) the provisions of s 281(7) MRA apply to this matter with regard to the court’s jurisdiction to award costs.
[11]	Both parties have submitted that s 34 LCA is the court’s authority to award costs in this case. However s 34 LCA is subject to the provisions of the MRA and hence it is appropriate to base any award of costs on ss 283B(3) and 281(7) MRA, not the court’s general costs power under s 34 LCA. However the relevant legal principles applicable to an award of costs under s 34 LCA are directly relevant to a determination of costs under ss 283B(3) and 281(7) MRA. 
Preliminary jurisdictional issue

[12]	Because any costs order will be based on ss 283B and 281(7) MRA and not on s 34 LCA, it is unnecessary for me to determine whether this matter is an administrative enquiry or a “proceeding” as is required by s 34 LCA.  However for completeness sake I will examine that question.
[13]	The Supreme Court in BHP Billiton Mitsui Coal Pty Ltd v Isdale and Others determined that where the Land Court is hearing objections to mining lease applications referred to it by relevant government departments, the Land Court is undertaking an administrative enquiry and not a “proceeding”. Consequently the Supreme Court held that the Land Court could not order disclosure in these referred matters because the disclosure provisions in the Land Court Rules apply to “proceedings” not administrative enquires. It is likely in my view that s 34 LCA similarly applies only to “proceedings” and not to administrative enquiries.
[14]	However despite mining compensation proceedings under ss 279, 279A and 281 MRA being listed with administrative functions of the Land Court in the yet to be proclaimed s 97 State Development and Public Works Organisation and Other Legislation Amendment Act 2015, I do not believe a compensation determination is an administrative enquiry. My reasons are as follows:
-	The Land Court makes a final determination in compensation matters and not merely a recommendation,
-	An appeal lies from compensation decisions to the Land Appeal Court, 
-	Unlike mining lease objection matters, there is no public interest consideration in determining mining compensation matters.

[15]	With respect to compensation review decisions under s 283B, it is also important to note they are not referred to the court by a government department.
[16]	Compensation matters under s 283B MRA (and compensation matters generally) are in my view “proceedings” and not administrative enquiries.
Relevant legal principles

[17]	As mentioned earlier, the legal principles to be considered in an application for costs under s 34 LCA are relevant to my determination of costs in this matter under ss 283B(3) and 281(7) MRA.
[18]	The discretion under s 34 LCA is complete and unfettered by any preconceived rules or principles such that costs should follow the event. The discretion though must be exercised judicially with sound reasons and not arbitrarily.
[19]	In BHP v Cherwell Creek the Land Appeal Court said –
“In Wyatt v Albert Shire Council, the Full Court considered s.31(1) of the City of Brisbane Town Planning Act 1964 which relevantly provided that the Local Government Court may make such order as it thinks fit as to the costs of any proceeding before it. The similarity between s.31(1) and s.34(1) has been recognized by this Court in the past. The Full Court held in Wyatt that the effect of s.31 was that the discretion conferred with respect to costs is complete or full. The discretion is not to be exercised arbitrarily, but judicially, that is, for reasons that can be considered or justified. Resort may be had to any settled practice of a court but a purported exercise of discretion which fails because the mind is closed to relevant considerations through a rigid adherence to preconceptions is an error of law. Thus an approach that required exceptional circumstances to be established before such a wide discretion is exercised is likely to be incorrect. Similarly it would not be right to start with the preconception that costs follow the event. The Court also said that it would be wrong to attempt to lay down rules governing the exercise of the discretion and each case should be governed by its circumstances.” 

[20]	In PT Limited and Westfield Limited v Department of Natural Resources and Mines the Land Appeal Court said:
“There may be any number of factors which a court vested with a general jurisdiction to award costs might entertain. One of those factors is the outcome of the litigation. Another might be the overall purpose of the legislation. Contemporary legislation in Queensland tends to make express provision about costs if it is thought desirable that parties not be discouraged from seeking to assert rights by the fear of adverse costs orders.”

[21]	The Land Appeal Court considered the issue of costs with respect to mining leases matters under the MRA in Anson Holdings Pty Ltd v Wallace and Anor (No 2):
“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.

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).”

[22]	In terms of exercising the costs discretion in mining compensation cases; I note the comments of then Member Keim SC when assessing costs in relation to an unsuccessful rehearing application of a mining compensation determination where the learned Member said:
“It follows from the authorities cited that a number of principles apply to the discretion created by s.34 of the Act. They include the following: 

(a)	Costs are in the discretion of the Court. 
(b)	The discretion must be exercised judicially. That is, it must not be exercised by reference to matters which are irrelevant or in an arbitrary manner. 
(c)	Success in the litigation and the degree of success of one party or another is a consideration to which considerable weight must be given. 
(d)	The nature of the parties to the litigation and the nature of the representation utilised are relevant factors. 
(e)	The reasonableness or otherwise of the conduct of parties to the litigation is a relevant factor. 
(f)	An order that a party pay the costs of another party is not for the purposes of punishment. Rather, it is intended to indemnify the beneficiary of the order for the expenses incurred in the litigation.”

Applicant’s submissions as to costs

[23]	The applicant submits that prima facie costs should follow the event in the Land Court particularly in mining compensation cases. 
[24]	The applicant argues that the degree of success he achieved was significant, and he should be compensated for the costs he was forced to incur in enforcing his fundamental right of access.
[25]	The applicant also submits that he made two without prejudice offers and one open offer to settle all couched in terms of Calderbank offers. It is submitted that as the outcome of the case is less favourable to the respondent than each of the applicant’s settlement offers, it is appropriate for the court to order the respondent pay the applicant’s costs on the indemnity basis. 
Respondent’s submissions as to costs

[26]	The respondent submits the Land Court has an unfettered discretion to award costs under s 34 LCA and is not constrained in the factors it may consider. Commonly considered factors include the outcome of the litigation; the content and purpose of relevant legislation; and the conduct of the parties.
[27]	The respondent does not seek a costs order in the proceedings generally but does seek its costs thrown away with respect to four applications/actions of the applicant. 
[28]	The four applications are:
1.	An application filed by the applicant on 9 April 2014 seeking to amend the originating application to include certain injunctive relief, and to join the Chief Executive of the Department of Natural Resources and Mines (the Chief Executive) and the Etheridge Shire Council as respondents.
2.	An application filed by the applicant on 22 April 2014 seeking leave to join Lurleen Alison Young as a respondent.
3.	Withdrawal of injunctive relief sought by the applicant in paragraphs 13 a, b, c and d of the further amended originating application.
4.	An application filed by the applicant on 10 July 2014 by which it sought to adjourn the hearing listed for 15 July 2014.

[29]	The respondent submits that during April 2014 the applicant sought the court’s leave to amend its originating application to add injunctive relief (to cease mining operations on the road, restore the road, reinstate access to the road or construct a new access); and to add various parties to the proceedings. 
[30]	The joinder applications were finally heard on 29 April 2014 where the Council did not object to being joined and was joined; Ms Young did not appear and was joined; and the Chief Executive DNRM did object to being joined and was not joined.  
[31]	Subsequently on 24 June 2014 the applicant indicated he no longer wished to pursue the injunctive  relief and that he no longer required the Etheridge Shire Council and Ms Young to be respondents in these proceedings. Orders were made in this respect and costs reserved.
[32]	The respondent advises that on 10 July 2014 only five days before the hearing of this matter, the applicant applied to adjourn the hearing pending a Supreme Court determination of a judicial review application (lodged by the respondent) objecting to road access conditions imposed by the Minister for National Resources and Mines (the Minister) in the renewal of the subject mining lease. The Land Court refused this application.
[33]	The respondent submits that the applicant’s conduct in seeking to:
•	amend its application to include injunctive relief which was subsequently abandoned;
•	join other parties whom it was conceded were not necessary for the determination of the issues;
•	adjourn the hearing at a late stage,

was unreasonable conduct and unnecessarily incurred additional costs for the respondent. Those costs included perusing material filed by the applicant, seeking instructions, preparing material in response and appearing in court when those issues were dealt with.
[34]	The respondent submits that although the applicant has been ultimately successful in obtaining an order for additional compensation, the various applications and amendment to the relief sought served no purpose in the litigation other than to increase costs and obscure the nature of the applicant’s case.
[35]	In its response to the applicant’s request for costs, the respondent submits that the following factors weigh against the court’s discretion to award costs to the applicant:
•	the decision in this matter was complex,
•	the decision will provide guidance to other landowners and miners,
•	the late delivery of expert material (surveyor’s report) on which the court heavily based its decision.

[36]	In relation to the offers of settlement, the respondent submits that the second and third offers involved the resolution of a second compensation matter that was later determined by this court, and these two offers also involved the agreement of third parties who were not within the control of either the applicant or respondent. 
[37]	The respondent submits the first offer proposed a settlement amount greater that the amount determined by the court.
Applicant’s response to respondent’s submissions as to costs

[38]	The applicant submits that he should not have to pay the respondent’s costs of the four applications/actions as claimed by the respondent.
[39]	The applicant submits his application to amend his originating application to include injunctive relief (seeking reinstatement of his road access) was successful. 
[40]	The applicant submits the abandonment of that relief was due to overtaking events. It is submitted the need for the injunctive relief was overtaken by the mining lease renewal decision of the Minister on 29 May 2014, which included conditions that the respondent not mine the road, remove all fencing preventing access to the road, or provide alternative public access.
[41]	The applicant advises that the respondent sought a judicial review of the Minister’s conditions and obtained a stay until that application was heard by the Supreme Court. The applicant submits that once the Minister inserted these conditions in the renewal of the respondent’s mining lease, the access conditions were either going to be abided by or were going to be reviewed by the Supreme Court – either way the applicant no longer needed to pursue this same relief in the Land Court. Ultimately the Supreme Court upheld the conditions imposed by the Minister. 
[42]	The applicant submits that it was justified in seeking and later withdrawing this injunctive relief and at all times acted reasonably.
[43]	The applicant also submits that it was successful in its application to join the Etheridge Shire Council and Ms Young to the proceedings. The Council maintained the road and the road was partly constructed on Ms Young’s property. Again it is submitted that the need for these parties to be joined dissipated upon the Minister imposing the road access conditions on the respondent’s renewal of the mining lease. The parties were removed from the action promptly after the Minister’s decision.
[44]	The applicant submits that the respondent had no success in these applications and the subsequent removal of these parties was not the fault of the applicant.
[45]	The applicant confirms that he did not succeed in his application to join the Chief Executive. The applicant submits that nevertheless the application to join the Chief Executive was reasonable. The Chief Executive administered the relevant legislation and issued the subject mining lease and the applicant wished all those affected by the mining lease to be fairly heard. Ultimately the Chief Executive chose not to be joined.
[46]	The applicant submits that the costs of this particular joinder application would not be substantial as other matters were dealt with by the court at the same time this application was heard, including the joinder of other parties.
[47]	With respect to the application to adjourn the hearing, the applicant submits that this application was brought to await the determination of the Supreme Court judicial review hearing. The applicant wished the Land Court to have an end point of any compensation payable for the loss of road access. The applicant submits the application to adjourn the Land Court hearing was not unreasonable and was favourably commented on at the beginning of the trial.
[48]	The applicant also submits the costs of this application were not significant as it was heard at the same time as other matters were reviewed in the usual course of case management.
[49]	The applicant submits that while costs should ordinarily follow the event, in the context of the overall success of the applicant, the appropriate order to make is that each party should bear their own costs incurred for this adjournment application.
Consideration of the issues

[50]	The first question to be determined is whether the applicant is entitled to his costs of and incidental to these proceedings.
[51]	The applicant submits that prima facie costs should follow the event in mining compensation cases in the Land Court. This is not correct. The authorities to which I have already referred make it clear that the success of a party is a relevant factor in determining costs in matters such as this but it is not the default position. 
[52]	However, the degree of success of the applicant is an important consideration in this case. The applicant has been wholly successful in obtaining an award of additional compensation as a result of deliberate action taken by the respondent to bar the applicant’s access to a road on his property and on the mining lease. The barring of access to this road caused the applicant to suffer loss which he was only able to recover through this action in the Land Court.
[53]	The respondent submits that costs should not be awarded against it because:
•	this matter was complex,
•	the decision will provide guidance to other landowners and miners as it centred around the impact of the use of roads within the area of a mining lease,
•	the late delivery of the applicant’s surveyor’s report on which the court heavily based its decision.

[54]	This matter was complex and difficult to determine but that does not mean that costs should not be awarded.
[55]	This decision may provide guidance to other landowners and miners but its value as a public interest case is limited. In my years on the Land Court bench I have not seen a case quite like this before. 
[56]	President MacDonald said in the Land Court decision of Xstrata Coal Queensland Pty Ltd v Friends of the Earth – Brisbane Co-Op Ltd (No 2):
“The proceedings determined and clarified important issues of law affecting the community generally and the proceedings have affected the development of the law generally which should reduce the need for future litigation. As such they have the character of test case proceedings.”

[57]	In that case President MacDonald held that an unsuccessful objector to a mining lease application did not have to pay the costs of the miner due to the public interest test case nature of the action.
[58]	In this case the respondent miner has acted in its own interests to bar access to the road and then unsuccessfully defended the applicant’s action for additional compensation. Although notice of this case may be taken by other miners and landowners, I do not believe it has the sufficient degree of general relevance or importance to be classified as a public interest test case such that the respondent miner should not have to pay costs.
[59]	The respondent also submits that costs should not be awarded against it due to the late delivery of the applicant’s surveyor’s report.
[60]	The applicant denies he was at fault with respect to the lateness of the delivery of his surveyor’s report and submits the report was admitted into evidence without objection.
[61]	The applicant submits that its surveyor’s report was not finalised earlier due to the respondent requiring a joint report and the unavailability at the time of the respondent’s surveyor. Having considered the applicant’s explanation for the late delivery of its surveyor’s report I am satisfied that no relevant blame should be attached to the applicant and note the surveyor’s report was admitted into evidence without objection.
[62]	In terms of the overall conduct of the parties, I note that this matter was strenuously fought but that the parties at all times were civil and respectful of each other. I do not believe the conduct of the applicant or the respondent in this action was unreasonable or irresponsible, and both parties had prospects of success.
[63]	However in balancing my costs discretion the overall success enjoyed by the applicant is a significant factor which I must take into account and in this matter there is no legitimate reason why costs should not be awarded to the successful party.
[64]	This court has commented previously that a landowner is entitled to seek the aid of the Land Court to obtain compensation as a result of mining activities. In this case where a miner has refused to pay any additional compensation and the landowner has been wholly successful, in my view the landowner should have his costs. 
Should costs be awarded on the indemnity basis or on the standard basis?

[65]	It would appear from the applicant’s submissions that he is seeking indemnity costs only on the basis of three Calderbank offers that were refused by the respondent.
[66]	In Ostroco v Department of Transport and Main Roads (No 3) the Land Appeal Court said, when examining the law with respect to indemnity costs and Calderbank offers: 
“This review of the cases would suggest that an offer, and in particular a Calderbank offer, made outside the rules may well be a significant matter in determining whether to award costs on the indemnity basis; and that there are strong policy reasons for making such an award, even when there is not a marked difference between the offer and the ultimate result. However, the making of an order for indemnity costs is discretionary; and there is no fixed rule that in certain circumstances, it should be made.” 

[67]	In J & D Rigging Pty Ltd v Agripower Australia Limited & Orsthe Court of Appeal said:
“The failure to accept a Calderbank offer is a matter to which a court should have regard when considering whether to order indemnity costs. The refusal of an offer to compromise does not warrant the exercise of the discretion to award indemnity costs. The critical question is whether the rejection of the offer was unreasonable in the circumstances. The party seeking costs on an indemnity basis must show that the party acted “unreasonably or imprudently” in not accepting the Calderbank offer.”

[68]	In Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) the Victorian Court of Appeal stated that a court considering a submission that the rejection of a Calderbank offer was unreasonable should ordinarily have regard to at least the following matters:
(a)	the stage of the proceeding at which the offer was received;
(b)	the time allowed to the offeree to consider the offer;
(c)	the extent of the compromise offered;
(d)	the offeree’s prospects of success, assessed as at the date of the offer;
(e)	the clarity with which the terms of the offer were expressed;
(f)	whether the offer foreshadowed an application for an indemnity costs in the event of the offeree’s rejecting it.

[69]	In Reeves v O’Riley the Court of Appeal confirmed that the list of considerations with respect to Calderbank offers is not exhaustive and the most important issue in determining whether the refusal of the offer was plainly unreasonable, is whether the offeree had any prospects of success.
[70]	The first Calderbank offer was made by the Applicant on 19 June 2014 and the respondent was given 7 days to respond. The applicant offered to settle the matter on payment of $50,000 compensation for the period from October 2013 to July 2014, plus costs in the sum of $46,000.
[71]	With respect to this offer, the respondent submits that the sum ordered by the court of $37,907.10 is less than the $50,000 offered to settle and the offer was made on the basis of the Minister’s renewal decision which required the respondent to provide access to the road. The respondent submits that the offer was made during the period it had to consider whether to apply for a judicial review of the Minister’s decision which it ultimately did.
[72]	The applicant disputes that the offer was more than the award of compensation. The applicant points out that the $37,907.10 award of the court was not the full compensation as it was limited to the period up to 13 July 2014. After that time, compensation was to be paid at $3,954.62 per month until the re-opening of the road. The applicant advises that the road was not reopened until late April 2015.
[73]	In my view the terms of this offer are unclear.  Does the offer of $50,000 mean the final payment of all compensation, or does it only mean compensation up and until July 2014? 
[74]	If the offer was only for compensation until July 2014, and further claims were to be made for the period post July 2014, the offer was more than the court’s award. If the offer was to include all compensation payable, why state in the offer that it was for the period up to July 2014 and if so, what would happen to the applicant’s rights to pursue compensation after that time?
[75]	The respondent obviously had a belief that the Minister’s conditions to restore the road access were unfounded and it ultimately took judicial review proceedings in the Supreme Court to challenge those conditions. The fact the respondent was not successful in those proceedings does not mean those proceedings were groundless or without substance.
[76]	This was a complex matter and both sides had prospects of success before the Land Court.
[77]	In terms of the considerations outlined by the Court of Appeal in J&D Rigging and also in Reeves, I believe the offer lacked clarity and I am not convinced that the respondent acted unreasonably or imprudently in not accepting this first Calderbank offer.
[78]	I note in all its Calderbank offers the applicant states:
“We draw ERO’s attention to the following:

•	Where Henry makes an Offer to Settle that is not accepted by ERO and Henry obtains a judgment no less favourable than the Offer to Settle; and

•	The Court is satisfied that Henry was at all material times ready, willing and able to carry out what was proposed in the Offer to Settle, 

the court must order that ERO pay Henry’s costs calculated on an indemnity basis unless ERO shows another order for costs is appropriate in the circumstances.”

[79]	With respect, this statement in relation to indemnity costs is incorrect and misleading. The statement reflects the costs position outlined in Rule 360 Uniform Civil Procedure Rules 1999 (UCPR) as to settlement offers made under Chapter 9 Part 5 UCPR, not the common law position with respect to Calderbank offers. At common law, as outlined above, the onus is on the applicant to establish the respondent unreasonably or imprudently refused the offer.
[80]	These Calderbank offers were not made under the UCPR as they were not expressed to be offers made under Chapter 9 Part 5 UCPR, and they do not provide for the minimum period of 14 days for acceptance. I also note the applicant has not submitted these settlement offers were made under Chapter 9 Part 5 UCPR but rather are common law Calderbank offers.
[81]	The second Calderbank offer was made by the applicant on 30 June 2014.
[82]	This offer requires the respondent to rectify the road for use by the applicant and the public, and seeks compensation in an amount of $30,000 and each party bear their own costs. The offer also seeks to resolve a related but different compensation claim with respect to ML 30122.
[83]	The respondent submits that this and the following Calderbank offer involve third parties (the Minister) and a second compensation claim, and hence are not sufficiently certain to be treated as a Calderbank offer.
[84]	This offer is clearly dependent on the respondent settling a related compensation claim for ML 30122 and all references to the terms of settlement for this other claim have been redacted.
[85]	In the circumstances of the respondent having prospects of success in this matter, and as it was only provided 4 days to assess its position and respond, and as another matter relating to ML 30122 was included in this offer, I am not convinced that the respondent unreasonably or imprudently rejected the offer.
[86]	I am also concerned that this offer, like the other Calderbank offers made by the applicant, incorrectly states the costs position flowing from a refusal to accept the offer. 
[87]	The final Calderbank offer made by the applicant was sent at 4:31pm on Friday 11 July 2014. I note the trial started with a view on the following Wednesday 15 July and the hearing commenced on Thursday 16 July 2014. 
[88]	This offer required the respondent to surrender that part of its mining lease which incorporates the road and the Minister to accept such surrender and required the respondent to reinstate the road to a trafficable condition. No additional compensation is sought by the applicant and each part will bear its own costs. The offer also includes a settlement offer (redacted in my copy) for the related but separate mining compensation claim under ML 30122.
[89]	This settlement agreement was in hindsight very favourable to the respondent, however I note the offer was only open until 9am Monday 14 July 2014. This meant the respondent had virtually no time (expect that weekend) to properly consider and respond to the offer.
[90]	I also note the offer was dependent on the actions of a third party (the Minister). The offer was also dependent on settlement of the related but different compensation claim under ML 30122. 
[91]	This offer similarly to the other Calderbank offers made by the applicant, incorrectly states the costs position flowing from a refusal to accept the offer.
[92]	In all the circumstances I am not convinced that the respondent’s refusal to accept this offer was unreasonable or imprudent. As stated earlier, in my view both the applicant and respondent had prospects of success in their claims.
[93]	In summary I am not convinced by the evidence and submissions of the applicant, that the respondent acted unreasonably or imprudently in not accepting the three Calderbank offers made to it on 19 June, 30 June and 11 July 2014. Consequently I decline to make a costs order on the indemnity basis against the respondent.

Should costs be awarded to the respondent with respect to the four applications/actions?

[94]	The respondent has sought its costs of four specific applications/actions by the applicants in this matter.
1.	An application filed by the applicant on 9 April 2014 seeking to amend the originating application to include certain injunctive relief, and to join the Chief Executive of the Department of Natural Resources and Mines (DNRM) and the Etheridge Shire Council as respondents.

2.	An application filed by the applicant on 22 April 2014 seeking leave to join Lurleen Alison Young as a respondent.

3.	Withdrawal of injunctive relief sought by the applicant in paragraphs 13 a, b, c and d of the further amended originating application.

4.	An application filed by the applicant on 10 July 2014 by which it sought to adjourn the hearing listed for 15 July 2014.

[95]	After reviewing the applications and the submissions of both the respondent and applicant, I have determined not to order costs against the applicant with respect to these four applications/actions.  My reasons for this are as follows:
(a)	The applicant was well within his rights and acted reasonably in seeking injunctive relief to reinstate his access to the road;

The applicant was successful in his application to add the injunctive relief to his application;

After the Minister imposed conditions upon the respondent in his renewal of the mining lease, which conditions reinstated the applicant’s right of access in similar terms to the injunctive relief sought, the applicant acted reasonably to abandon the injunctive relief;

(b)	The applicant was well within his rights and acted reasonably in seeking to join the Etheridge Shire Council and Lurleen Alison Young to the proceedings as the Council had maintained the road in question and the road was partly constructed on Ms Young’s property.

The applicant was successful in his application to join the Etheridge Shire Council and Ms Young to the proceedings.

After the Minister imposed conditions upon the respondent in his renewal of the mining lease, which conditions reinstated the applicant’s right of access, the applicant acted reasonably to promptly remove the Etheridge Shire Council and Ms Young from the proceedings;

(c)	The applicant was unsuccessful in its application to join the Chief Executive. However the applicant was seeking to join all parties he believed were involved and needed to be fairly heard with respect to the application. I note that this joinder application was heard at the same time as the other joinder applications were heard and hence costs with respect to this particular application would be relatively minor. 

In these circumstances where the applicant has been wholly successful in the substantive matter before the court, acted reasonably and where the respondent has not been put to a great deal of unnecessary trouble and expense, I do not believe costs should flow to the respondent with respect to this particular application.

(d)	With respect to the late application to adjourn the hearing date, I note the applicant was unsuccessful and has offered in his submissions to consent to an order that each party bear their own costs of this application.

The applicant appears to have made this concession on the basis that costs should ordinarily follow the event. As stated earlier, in the Land Court this is not necessarily the rule and the result of litigation is only one factor to consider, though it is a significant factor.

In light of the applicant’s explanation that he wished to adjourn the Land Court hearing until the outcome of the judicial review proceedings in the Supreme Court regarding his road access, his conduct was not unreasonable. I note the applicant also indicates this application was heard at the same time as the matter was due to be reviewed in the usual course of case management and hence costs should be relatively minor.

In these circumstances where the applicant has been wholly successful in the substantive matter before the court, acted reasonably and where the respondent has not been put to a great deal of unnecessary trouble and expense, I do not believe costs should flow to the respondent with respect to this particular application. 

I note the concession made by the applicant that each party should bear their own costs of this application. In light of the applicant’s concession, I am not inclined to order that the respondent pay the applicant’s costs and I have determined that each party should pay their own costs with respect to this particular application.

ORDERS

1.	I order the respondent pay the applicant’s costs of and incidental to these proceedings to be agreed or failing such agreement to be assessed on the standard basis, subject to order 2.

2.	I order that each party bear their own costs of an incidental to an application filed by the applicant on 10 July 2014 that the hearing of this matter be adjourned.

PA SMITH
MEMBER OF THE LAND COURT