SCHNITZENBAUMER v DISTRICT COURT OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P, PRIESTLEY and SHELLER JJA 25 June 1998, 15 July 1998 [1998] NSWCA 205 COST ORDERS — discretion of the judge — Mining Act 1973. On appeal the appellant submitted: As his appeal was successful (his registration was restored), as there were no exceptional circumstances justifying the costs order, and as Wall DCJ's remark had no supportable basis, a costs order should have been made in his favour. Held: 1. (a) The usual rule is that costs follow the event: Hughes v Western Australian Cricket Association (Inc) & Ors (1986) ATPR 40-748, 48134 at 48136, but (b) courts also have a broad discretion on costs and some situations justify departure from the usual rule; Hughes; Cretazzo v Lombardo (1975) 13 SASR 4; further, appellate courts do not readily interfere with challenged cost orders in the absence of a material and significant mistake. 2. There was some support for Wall DCJ's remark in that the appellant had put a fuller case before him than had been put before the Chief Mining Warden, which, if put at first instance may have made an appeal unnecessary; further the appellant actually lost on the question (the breach of reg18) which took up most of the court time; and Wall DCJ could properly use his discretion to make the cost order that he did. Mining Act 1973 s36, s152, s154(1), s158 Hughes v Western Australian Cricket Association (Inc) & Ors (1986) ATPR 40-748, 48,134 Cretazzo v Lombardo (1975) 13 SASR 4 Mason P I agree with Priestley JA. Priestley JA Mr J F Schnitzenbaumer had been the holder of claim No 7449 in the Mining Region of Lightning Ridge for a number of years when, by application dated 10 April 1991, the Regional Mining Officer asked the Chief Mining Warden that the registration of the claim be cancelled. The application said the cancellation was sought "under the provisions of s36 of the Mining Act 1973 on the grounds that the registered holder has failed to comply with the conditions of the claim set out below:- 1. REG18: The registered holder shall ensure that the claim area is effectively worked." It has been common ground in the case that there was a reg18 to the foregoing effect, compliance with which was a condition precedent to the renewal of registration of the claim. Mr Schnitzenbaumer appeared for himself before the Chief Mining Warden when the application was heard at Lightning Ridge on 21 May 1991. The Regional Mining Officer gave evidence of what he saw when he visited the claim area on two occasions. He was cross-examined by Mr Schnitzenbaumer. Mr Schnitzenbaumer did not give evidence himself. He addressed the Mining Warden in a way which contained many assertions of fact. 2 UNREPORTED JUDGMENTS The Chief Mining Warden, after giving reasons, cancelled the registration of the claim on and from 7 June 1991. It is apparent from his reasons that he accepted the evidence of the Regional Mining Officer and on the basis of that evidence found that the factual foundation of the cancellation ground had been made out. Mr Schnitzenbaumer appealed to the District Court against the Chief Mining Warden's decision, pursuant to s152 of the Mining Act 1973. An appeal under that section, by reason of s154(1), "shall be in the nature of a rehearing of the whole matter". The appeal was heard by his Honour Judge Wall QC on 9, 21 and 22 February 1996. The transcript of the proceedings shows that the primary issue was whether the claim had been "effectively worked". Much factual material relevant to this question was put before the judge. This time Mr Schnitzenbaumer gave evidence. There was also argument about the meaning of "effectively worked". The trial judge held that there had been "a significant and substantial cessation of operations on the claim, from about mid-February until the date of the application". He said he was satisfied there had been a breach of reg 18. Counsel then addressed on the discretion, which it was common ground the court had, to restore the registration of the claim, notwithstanding proof of breach of the regulation. After indicating the considerations which might lead to an exercise of discretion unfavourable to Mr Schnitzenbaumer, Judge Wall said: "But in this case I think that the discretion should go in the appellant's favour. Iam not going to cancel the licence. I will revoke the order made by the Mining Warden cancelling the licence." Counsel then addressed on costs. This court has no transcript of what was then said. After hearing this argument Judge Wall said, and said no more: "T think he was the architect of his own harm, and he must bear the costs." The formal order was that Mr Schnitzenbaumer pay the respondent's costs of the appeal. There was no appeal by the Regional Mining Officer against the restoration of Mr Schnitzenbaumer's registration. Mr Schnitzenbaumer however purported to appeal against the costs order against him. I describe the appeal as a purported one because it is not at all clear that the conditions precedent to the entitlement of Mr Schnitzenbaumer to appeal (which was based on s158 of the Mining Act 1973) were fulfilled in this case. Nevertheless, this court heard full submissions on the costs question, and I will deal with that question, without deciding whether Mr Schnitzenbaumer had established that he had a valid right of appeal. Mr Schnitzenbaumer's argument was to the following effect. Ordinarily, costs follow the event. He had succeeded in the primary object of his appeal in that he again became the registered holder of the claim. Before a court will depart from the ordinary rule that costs follow the event something exceptional needs to be accepted by the court as having happened in the case relevant to costs. In the present case the only reason given by the judge was that Mr Schnitzenbaumer had been the architect of his own harm. It was not possible to find from the transcripts of what happened before the Chief Mining Warden and Judge Wall anything that Mr Schnitzenbaumer had done which warranted the judge's reason. So far as the legal propositions concerning the usual rules about costs are concerned, the foregoing argument is substantially correct: see, among many statements of the rules, Hughes v Western Australian Cricket Association (Inc) & Ors (1986) ATPR 40-748, 48,134 at 48,136. The same case however also records URSCHNITZENBAUMER v DISTRICT COURT OF NEW SOUTH WALES (Priestley JA) 3 the further propositions recognised in many cases, that a court has a wide discretion concerning costs and that there are cases and situations which will justify a court in making a successful party bear the costs of that party's opponent: Hughes at 48,136; and see Cretazzo v Lombardo (1975) 13 SASR 4 at 11-12. Within the wide discretion a court has, and subject to the recognised, but broad rules I have mentioned, everything depends upon the circumstances of the case. Further, since the details which can bear upon decisions of costs are much more readily accessible to the judge who tried the case than they can be to appellate courts, appellate courts are very reluctant to interfere with challenged costs orders, unless it can be clearly shown that there was or must have been a material and significant mistake of some kind in the exercise of the discretion. In the present case the judge made the costs order immediately after Mr Schnitzenbaumer's counsel had addressed him on the subject. It often happens that in the course of such an address, observations by the court make fairly plain why it is likely that the court will be making the costs order eventually made. In this case this court does not know, one way or the other, what happened in the course of counsel's address. All that is known is the one rather cryptic remark made by the judge, already quoted. The argument that that remark has no supportable basis is partly correct (depending upon the meaning attached to the remark) in that on examination of the most obvious possible basis for it, that basis appears to be doubtful support for it. But also, the remark is at least partly justified. Before the Chief Mining Warden Mr Schnitzenbaumer appeared for himself, as he was entitled to do, but did not give evidence on oath, and did not in his address to the Chief Mining Warden, give as full an account of the reasons why the claim was not being worked at the time when the Regional Mining Officer visited it as he did, on oath, before Judge Wall. This fuller account mentioned an arrangement which Mr Schnitzenbaumer had made for the claim to be worked during that time; although the arrangement came to nothing, Mr Schnitzenbaumer's account of the matter in his evidence was that he had not known, until some time later, that the arrangement had not been carried out. This aspect of his case had not been mentioned at all before the Chief Mining Warden, and must have been quite material to the judge's decision that he would exercise discretion in allowing Mr Schnitzenbaumer to become again the registered holder of the claim notwithstanding proof of breach of the regulation. This view of the matter supports the idea that the trial judge must have thought that it was at least a possibility that if Mr Schnitzenbaumer's fuller case had been put before the Chief Mining Warden, there may never have been any need for an appeal. When this is taken together with another consideration which seems obvious enough from the transcript of what took place before Judge Wall, namely that by far the greater part of the case as it unfolded before him was concerned with the question whether Mr Schnitzenbaumer had been in breach of reg18, a question on which Mr Schnitzenbaumer lost then it seems to me there was material before Judge Wall upon which he could quite properly conclude, in the exercise of his discretion, that he would not follow the usual rule concerning costs, but because of the circumstances I have mentioned would take the course, which the authorities show was open to him if the case were a proper one for it of making the order that he did. 4 UNREPORTED JUDGMENTS I do not think that the arguments for Mr Schnitzenbaumer in this court, that there was a clear mistake of some kind made by the trial judge in regard to the order for costs, have been made out. I would dismiss the proceedings with costs. 6 Sheller JA I agree with Priestley JA. Appeal dismissed with costs. 10 Counsel for the appellant: W R Haylen QC Solicitors for the appellant: Dunhill Madden Butler Counsel for the respondent: P Sharp 15 Solicitors for the respondent: State Crown Solicitor