Determining costs A Goliath entity must not necessarily pay a David entitys costs

Key Insights

• Costs generally follow the event, meaning that a party who is successful in litigation will not usually pay costs for the litigation.
• The Court will not dissect proceedings into various "events" when considering costs.
• A party will not obtain an order for costs merely because it has acted reasonably.
• Being a smaller entity than the other party will not, of itself, be sufficient to argue that the other party should pay costs.

InNew Acland Coal Pty Ltd v Oakey Coal Action Alliance Inc (No 3)[2022] QLC 5, Oakey Coal Action Alliance Inc (Oakey Coal) requested an order that New Acland Coal Pty Ltd (New Acland) pay its costs arising from both a 2017 application to reopen and a 2018 remitted proceedings.

The 2017 reopening – An unclear victory

Although New Acland applied for reopening to introduce new material related to groundwater, the new material was found to ultimately be irrelevant to the outcome of the case. As a result, Oakey Coal sought an order that New Acland pay its costs of and incidental to not only the application to reopen the hearing, but all the costs incurred for considering the new irrelevant evidence, briefing its experts, the additional hearing time and the submissions required by the new evidence.

Oakey Coal submitted that the orders should be made for the following reasons:

1. costs should follow the event – the waste is the relevant "event" when considering the application of the general rule;
2. Practice Direction 4 of 2018sets out the matters the Court may consider when deciding to make a costs order. Oakey Coal relied on paragraph 84(c) to argue that "wasted" costs it incurred – due to the matter being remitted based on irrelevant material – should be considered by the Court as an "other relevant factor" under paragraph 84(g); and
3. costs were wasted because the new material related to groundwater which Bowskill J (as her Honour then was) found was outside of the Court's jurisdiction.

The Court did not accept that "wasted costs" were an "event" within the meaning of the general rule that costs follow the event. It was noted that courts are reluctant to dissect proceedings into various events or issues when determining costs, particularly in jurisdictions where it is difficult to identify a victor. Further, the Court was not persuaded that Oakey Coal was "successful" in the application, so as to engage the ordinary rule that costs follow the event.

The Court also did not accept that the introduction of the new evidence was sufficient to justify an order for costs. In particular, the Court noted that the application to reopen was not a waste of Oakey Coal's resources as the Independent Expert Scientific Committee final report that was introduced into evidence did have some relevance to live issues in the case.

The 2018 remitted hearing – A David and Goliath story

Oakey Coal also submitted that New Acland should pay its costs for the 2018 remitted hearing as the costs were "wasted" – since the case was ultimately heard before Member Stilgoe OAM – and it would be "fair" for New Acland to pay Oakey Coal's costs.

Oakey Coal's primary submission was that the remitted hearing was complex and time consuming and that its efforts in the rehearing were wasted because New Acland pressed for the rehearing despite the appeal. The Court accepted these submissions. However, the Court rejected Oakey Coal's submissions in relation to its reasons for not applying for a stay of the remitted hearing.

Further, Oakey Coal submitted (relying onAnson Holdings Pty Ltd v Wallace & Anor(2010) 31 QLCR 130) that fairness required an order in its favour. The Court rejected this submission and noted that "a party does not obtain an order for costs simply because it has acted reasonably". The Court accepted that the costs of the 2017 and 2018 hearings were not trivial, and that Oakey Coal is a not-for-profit community group, and New Acland is a large company pursuing a project for significant commercial gain. However, the Court did not accept that the relative disparity between the parties justified an order for costs without some other factor being present.

Ultimately, the Court refused the application for costs in relation to the 2017 reopening and the 2018 remitted proceedings. The Court also made no order as to the costs of these proceedings.

Authors:Roxane Read, Senior Associate and Dillon Mahly, Paralegal.