LAND COURT OF QUEENSLAND

CITATION:	Goldhounds Mining and Exploration Pty Ltd v Department of Natural Resources, Mines and Energy (No 2) [2019] QLC 16	
		
PARTIES:	Goldhounds Mining and Exploration Pty Ltd
ABN 92 607 633 456
(applicant)	
		
	v	
		
	Department of Natural Resources, Mines and Energy
(respondent)	
		
FILE NO:	MRA429-18	
		
DIVISION:	General division	
		
PROCEEDING:	Application for costs	
		
DELIVERED ON:	13 March 2019	
		
DELIVERED AT:	Brisbane	
		
HEARD ON:	Submissions closed 12 March 2019	
		
HEARD AT:	Heard on the papers	
		
PRESIDENT:	FY Kingham	
		
ORDER:	Each party must bear their own costs of the application for an injunction. 	
		
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where the respondent imposed a financial penalty on the applicant – where the applicant applied to the Land Court of Queensland for an injunction pending an internal review of the decision – where the Land Court had no jurisdiction to hear and determine the application – where both parties sought an order for costs – where the Court ordered that each party must bear their own costs

Land Court Act 2000, s 34

ERO Georgetown Gold Operations Pty Ltd v Henry (No. 2) [2016] QLAC 3, applied
Oshlack v Richmond River Council (1998) 193 CLR 72, applied	
		
APPEARANCES:	P Crossland, P E Crossland Consultancy, as agent for the applicant

G Elmore of Counsel (instructed by In-house Legal, Department of Natural Resources, Mines and Energy) for the respondent	
[1]	Goldhounds Mining and Exploration Pty Ltd applied to the Land Court for a stay of a decision by the Principal Mining Registrar and associated orders, pending the outcome of an internal review of the decision. I determined the Court does not have jurisdiction to hear and determine the matters raised by Goldhounds. Both parties have sought an order that the other pay their costs of the application. I have decided that each party should bear their own costs.
[2]	The Court has a general power under s 34 of the Land Court Act 2000 (LCA) to order costs of a proceeding as it considers appropriate. The Court’s discretion to award costs is unfettered. It must exercise its discretion without caprice, having regard to relevant considerations and established principles. 
[3]	Costs are not awarded to punish the unsuccessful party, but are intended to be compensatory. They indemnify the successful party against the expense to which they have been put in the litigation. 
[4]	Section 34(2) of the LCA provides that if the Court does not make an order for costs, each party must bear their own. It is sometimes argued this creates a general rule that each party bears their own costs unless the circumstances justify a departure from that position. That argument has been rejected by the Land Appeal Court. 
[5]	The rule that costs follow the event is deeply embedded in the law and that is a factor to be considered when exercising the Court’s discretion. There is justice in this approach as it “protects those put to unnecessary and substantial expense at the behest of others”. 
[6]	As DNRME was entirely successful in defending the application, there is no basis for awarding costs to Goldhounds. The only question is whether Goldhounds should pay DNRME’s costs or each party should bear their own.
[7]	In my reasons on the application, I observed that counsel for DNRME acted professionally and in accordance with the Queensland Government’s Model Litigant Principles by informing Goldhounds of the possibility of seeking relief under the Judicial Review Act 1991 and the timeframe for doing so. DNRME argues this supports its application for costs, because Goldhounds could have withdrawn its application. 
[8]	Against that, Goldhounds submits DNRME did not follow its own Operational Policy – Mineral and Energy Resources Compliance Policy MIN/2018/4213. Goldhounds’ complaint is that DNRME did not conduct an internal review or fully inform Goldhounds of its options with respect to a review of the decision or an appeal against the decision. As a result, Goldhounds says it had no option but to commence legal proceedings.
[9]	The Operational Policy describes the principles DNRME will apply in compliance activities and decision-making. It does not impose the obligations Goldhounds says DNRME failed to meet.
[10]	Goldhounds engaged a non-legal agent to represent it in the application. It has a right to do so. Perhaps if it had obtained legal advice instead, Goldhounds may not have brought the application.
[11]	Nevertheless, I accept Goldhounds’ submission that the scope of the Court’s jurisdiction under the Mineral Resources Act 1989 was not clear. There was no precedent to guide the parties about that. There is a public benefit in clarifying the limits of the jurisdiction of a specialist Court or Tribunal. 
[12]	Goldhounds consented to determination of the jurisdictional point on the papers and, in that way, acted appropriately in expediting proceedings and in limiting the costs to the parties and the Court. That is reflected in the modest estimate of costs made by both parties.
[13]	In all of the circumstances, and taking into account that the respondent is a government agency, not a private litigant, I consider it is appropriate for each party to bear their own costs of the application.
Orders
Each party must bear their own costs of the application for an injunction.

FY KINGHAM
PRESIDENT OF THE LAND COURT