Land and Environment Court New South Wales Medium Neutral Citation: Gold And Copper Resources Pty Limited v Minister For Resources and Energy (No 2) [2013] NSWLEC 117 Hearing dates: Written submissions Decision date: 25 July 2013 Jurisdiction: Class 8 Before: Pain J Decision: 1. The First and Second Respondents are to pay the Applicant's costs of the proceedings as agreed or assessed. 2. Exhibits to be returned. Catchwords: COSTS - exercise of discretion to award costs to successful applicant in judicial review proceedings Legislation Cited: Mining Act 1992 Uniform Civil Procedure Rules 2005 r 42.1 Cases Cited: Gold And Copper Resources Pty Limited v Minister For Resources and Energy NSWLEC 66 Griffith v Australian Broadcasting Corporation (No 2) [2011] NSWCA 145 Category: Costs Parties: Gold And Copper Resources Pty Limited (Applicant) Minister For Resources and Energy (First Respondent) Newcrest Mining Limited (Second Respondent) Representation: Mr M Leeming SC with Mr J Giles (Applicant) Mr T Hale SC with Mr J Maston (First Respondent) Mr I Jackman SC with Mr S Lawrance (Second Respondent) Corrs Chambers Westgarth (Applicant) Crown Solicitor's Office (First Respondent) Allens (Second Respondent) File Number(s): 80736 of 2011 Judgment 1In Gold And Copper Resources Pty Limited v Minister For Resources and Energy NSWLEC 66 (Gold and Copper (No 1)) I upheld a judicial review challenge to the grant by the Minister of exploration licence EL 3856 to Newcrest under the Mining Act 1992. The grounds of review were: Ground 1 - The Minister had no power to renew licence under s 114(1)(a) of the Mining Act; Ground 2 - Non-compliance with s 114(6) Mining Act (no satisfaction of special circumstances); Ground 3 - Newcrest supplied false or misleading information in the exploration licence application; Ground 4 - The area the subject of EL 3856 was in breach of s 114(5) of the Mining Act. 2The Applicant Gold and Copper Resources Pty Ltd was successful in relation to grounds 2 and 4. 3I made orders including the following: (i)An order in the nature of certiorari that the decision by the First Respondent to renew Exploration Licence 3856 made on 14 March 2011 be quashed. (ii)The Second Respondent's application for a renewal of Exploration Licence 3856 dated 24 March 2009 be remitted to the First Respondent to be determined according to law. (iii)A declaration that no part of unit j of Canberra Block 1284 is the subject of Exploration Licence No. 3856. (iv)A declaration that no part of unit z of Canberra Block 1284 is the subject of Exploration Licence No. 3856. (v)A declaration that the renewal application lodged by the Second Respondent in respect of Exploration Licence No. 3856 on or around 24 March 2009 is yet to be "finally determined" (within the meaning of that phrase in section 117(1) of the Mining Act 1992 (NSW)) by the First Respondent. 4The awarding of costs to a successful applicant is a discretionary decision of the Court. The relevant costs rule, r 42.1 of the Uniform Civil Procedure Rules 2005 (UCPR) provides that costs follow the event unless some other order is made. 5Gold and Copper seeks an order that all of its costs be paid by the Respondents. This order is opposed. 6The Minister and Newcrest both argued that as Gold and Copper only succeeded on two out of four discrete issues it should not be awarded all its costs. The Minister submitted that each party should pay its own costs because it was not germane that Gold and Copper had some measure of success. Rather the Respondents are entitled to an order obliging the Applicant to bear the costs they incurred of defending the discrete issues and it would be unjust for Gold and Copper to recover costs it incurred pursuing issues in which did not succeed. For practical reasons each party should pay its own costs. These submissions are misconceived as they completely overlook Gold and Copper's substantial success in the proceedings and take a straight apportionment approach to costs which I do not understand to be the correct approach to the exercise of my discretion. 7Newcrest, while accepting that the usual costs rule is an order in favour of a successful applicant, submitted that Gold and Copper should obtain a costs order in its favour for 50 per cent of the costs incurred as an appropriate exercise of the Court's discretion. 8Gold and Copper submitted that the Respondents bore the onus of showing that some other order ought be made given its success in the proceedings and could not in the circumstances. Gold and Copper obtained all the relief it sought. It was not partially successful. Further, unless an argument is clearly dominant or separable it is not appropriate to differentiate between issues on which a successful party succeeded or failed per Griffith v Australian Broadcasting Corporation (No 2) [2011] NSWCA 145 at [16]. The Court does not tally up how many issues each party won or lost and make an apportionment on that basis. Further, the issues were not separable or dominant. The Minister's decision to renew EL 3856 was quashed on ground 2. The factual matrix for ground 2 overlapped with grounds 1 and 3. One reason Gold and Copper failed on ground 3 was that ground 2 was successful. The facts relating to the alteration to the exploration licence application from two to five years (ground 1) were part of the broader factual question as to whether the Minister considered "special circumstances" existed, the subject of ground 2. Discovery of the Minister's files were necessary for each of grounds 1 to 3 as well as ground 2. The issues were not entirely distinct from each other. Further the issues on which Gold and Copper failed added no or little evidence to the trial or cost. Gold and Copper succeeded on the question of units j and z, which was a separate issue. 9I agree with and adopt the submissions of Gold and Copper as I consider they correctly reflect the nature of the proceedings before me and the findings in my judgment. I also agree with and adopt the reasoning in Griffith v Australian Broadcasting Corporation (No 2) [2011] NSWCA 145 at [16]. I make an order that the First and Second Respondents pay the Applicant's costs of the proceedings. Orders 10The Court makes the following orders: (1)The First and Second Respondents are to pay the Applicant's costs of the proceedings as agreed or assessed. (2)Exhibits to be returned. ********** Amendments 15 August 2013 - Words omitted Amended paragraphs: 8 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 August 2013