For anyone in the mining compensation space, the decision in Lonergan & Anor v Friese (No 2) [2020] QLAC 4 is to be noted for the reasoning applied to determine costs.
The parties could not reach agreement regarding the amount of compensation within the requisite time under the MRA and as such, the chief executive referred the question of the amount of compensation to be paid by the miner to the Land Court for determination.
As to costs of the hearing at first instance
When considering the costs of the hearing at first instance, the court on Appeal reflected on the means by which the matter had come to be in the Land Court at first instance. In effect, the court said that as the matter was a referral, neither party occupied the position of plaintiff or defendant as one might in ordinary civil litigation. And, in the absence of evidence regarding offers made, neither party could be said to be "successful" such that costs follow the event. Consequently, by operation of s.34(2) of the Land Court Act, as neither party could demonstrate that they were "successful", the parties were ordered to bear their own costs.
As to the costs of the appeal
In short, the Court on Appeal held that the appellant was to pay the respondents costs of and incidental to the appeal assessed on an indemnity basis because:
they had commenced the hearing at first instance seeking a "demonstrably inflated" award for compensation; and
having received judgement against them at first instance, appealed seeking the same unreasonable amount of compensation.
The court on Appeal at [16] held:
" The conduct of the appellant in advancing, at first instance and on appeal, a claim for compensation which was exaggerated or demonstrably inflated, constitutes conduct which is plainly unreasonable, thus warranting an indemnity order as to costs."
Take away
Matters referred to the Land Court do not necessarily result in an award for costs where neither party can be said to be a plaintiff or defendant;
The absence of evidence regarding prior negotiations will hinder the ability of parties to determine "success" upon receipt of judgement;
It is imperative to seriously consider the reasonableness or otherwise of the compensation sought and on appeal, whether there is an appealable point other than a dogged belief in the possibility of a higher compensation award. Failure to do so will likely result in an adverse costs order.
