In these proceedings Broken Hill Cobalt Project Pty Ltd and Cobalt Blue Holdings Limited (the Applicants), by Notice of Motion filed 26 November 2021 sought orders varying the judgment and orders entered on 12 November 2021 in David Anthony Lord v Broken Hill Cobalt Project Pty Limited [2021] NSWLEC 126.
On 6 April 2021 the Notice of Motion was dismissed with costs reserved. Messrs Lord (the Respondents) seek their costs of the Notice of Motion and this application for costs in the total sum of $12,925. The Applicants dispute the quantum of the costs sought for the Notice of Motion and the Respondents' entitlement for costs of the application for costs and seeks its costs of the application for costs. The parties have filed affidavits and submissions in support of their competing positions and by consent I have determined the matter on the papers.
[2]
Quantum of reasonable costs of the Notice of Motion
Section 155(8) and (9) of the Mining Act 1992 (NSW) provides:
(8) The holder of the prospecting title must pay the reasonable costs of the landholder of the land concerned in a review of a determination under this section.
(9) The Land and Environment Court, in determining those reasonable costs, must consider whether or not the landholder has acted unreasonably in the negotiation, mediation, arbitration or review proceedings.
Both parties accept that the costs of the Notice of Motion are to be determined in accordance with this provision and that as a consequence the Respondents are entitled to their reasonable costs of the hearing of the Notice of Motion. I accept, as was submitted by the Applicants, that the reasonableness of the costs is not just a measure of the conduct of the Respondents to which the provisions of s 155(9) refers but also the reasonableness of the incurring of the costs and the quantum of the costs incurred.
The Applicants do not dispute the Respondents entitlement to costs, which costs have been particularised in a tax invoice from the solicitor for the Respondents together with a tax invoice for counsel's fees, but it disputes certain identified sums. The Respondents' have considered the disputed amounts. By way of summary the positions of the parties with respect to the disputed amounts are as follows:
1. The Applicants contended that the entries for 29 and 30 November 2021 are vague and occurred at a time when there were communications with the Applicants regarding separate issues of access unrelated to the Notice of Motion. Noting the matters in (2) below, and the concession by Harris Freidman Lawyers that a number of costs unrelated to the Notice of Motion had been "incorrectly recorded in the Land & Environment Court matter", there is no way of identifying whether these entries relate to the Notice of Motion or another matter arising from the "Land & Environment Court matter" and, therefore, incorrectly recorded.
The Respondents contended that the entries for 29 and 30 November 2021 are not vague and the alleged communications with the Applicants regarding separate issues of access are not identified. The Notice of Motion was served on Friday, 26 November 2021. It is hardly surprising that there was a flurry of activity on 29 and 30 November 2021. The amounts claimed for those dates should be allowed. The Applicants should not be required to disclose the substance of privileged communications.
1. Only 1 unit of time should be allowed for the entry on 8 December 2021 (on the basis that only one of the letters referred to related to the Notice of Motion), and the 15 and 20 December 2021 entries do not relate to the Notice of Motion but instead relate to the issue of costs of the review proceedings. Harris Freidman Lawyers should have carefully scrutinised its invoice to ensure that any and all costs unrelated to the Notice of Motion were removed, prior to issuing that invoice. That did not occur, nor has it been conceded that those costs do not properly form part of the Applicants' claim despite correspondence from Lander & Rogers on 20 and 28 April 2022. The sum of $195 should be disallowed and deducted.
The Respondents agreed that the sum of $195 should be disallowed and it has been deducted from the total sum claimed.
1. The Applicants disputed that the Respondents' claim of 2.5 hours of Mr Freidman's time (on 23 and 24 February 2022), for the drafting of what is effectively a one-page affidavit of Mr Lord. The time spent is unreasonable and excessive and no more than 1 hour should be allowed for the preparation of that affidavit, with the result that the sum of $910 should be disallowed and deducted.
The Respondents response to this issue mistakenly believed the affidavit to which it referred was not the affidavit of Mr Lord.
1. The Applicants submitted that the claim of 2 hours of Mr Freidman's time for the drafting of a one-page outline of written submissions was unreasonable and excessive, and no more than 1 hour of Mr Freidman's time should be allowed. Accordingly, a minimum of $650 should be disallowed and deducted.
The Respondents' contended that the fact that the submissions were concise does not mean that the time taken to prepare them (2 hours) should be arbitrarily reduced by 1 hour. The preparation of those submissions required a consideration of the relevant Uniform Civil Procedure Rules 2005 (NSW) provisions and the relevant provisions of the Mining Act 1992 (NSW).
1. The Applicants contended that the claim for the costs of Mr Freidman's attendance at hearing (recorded as 1.4 hours) and counsel's attendance (recorded as being fixed at 2 hours). As the hearing did not exceed 1 hour in duration, it is unreasonable to claim costs for more than 1 hour of attendance. The sum of $760 should be disallowed and deducted (being 0.4 hours of Mr Freidman's time and 1 hour of Ms Lane's time).
The Respondents contended that the time charged for attending Court on the hearing of the Notice of Motion includes speaking with counsel and travelling to and from Court and should not be reduced.
1. The Applicants contended that the costs following the attendance at the hearing of the Notice of Motion, in the sum of $260, should be disallowed and deducted.
The Respondents contended that such costs were claimable as they comprised reviewing an email from the Respondents' solicitor, speaking with Mr David Lord and reviewing and replying to an email from Mr Lord.
1. The allowed costs associated with Mr Freidman's time should also be reduced by 15% to 20% on the basis that it was unreasonable for all work to be conducted by a partner of Harris Freidman at a rate of $650 per hour, where many tasks could or should have been undertaken by more junior staff at a lower rate.
The Respondents disputed that Mr Freidman was not an appropriate person to undertake the tasks.
It was also asserted, without identifying the consequence of the complaint, that the Respondents, despite requests, had failed to provide copies of cost agreements. In circumstances where the parties have provided relevant submissions and evidence with a request to proceed on the papers, I will proceed. If either party considered that there was a good reason why the application could not be determined on the papers an application to have the matter relisted and further orders or directions should have been made. Absent such an application I can only proceed on the basis that the matter is able to be determined on the material before me. I note the submissions but do not consider that it prevents me from determining the application before me.
As to the disputed matters I find (adopting the same numbering as above):
1. I accept the submissions of the Respondents. The work undertaken coincides with the filing of the Notice of Motion and the work described appears on its face to reasonably relate to the substance of the motion. I will allow these costs.
2. Noted and $195 will be deducted from the sum claimed.
3. The time spent in drafting the affidavit includes the process of obtaining the instructions, distilling those instructions into admissible form and ensuring that the affidavit meets the requirement of the case and the client. I do not consider that the 2.5 hours is an unreasonable amount of time spent to undertake this process with a client. I will allow these costs.
4. I accept the Respondents' submissions that whilst the final version of the submissions may have been one page the process in producing that one page may have been longer. In the circumstances I do not consider that the 2 hours claimed is unreasonable. I will allow these costs.
5. I accept the Respondents' submissions. The attendance at Court is not limited to the precise time the Court sits but includes the time to travel to Court and ensure arrival in a timely fashion. The claim is not unreasonable. I will allow these costs for Mr Freidman. The costs of counsel are on a fixed fee sum. Counsel has not charged additional amounts for advising or preparation on the day of the hearing. I consider the fixed fee sum to be reasonable in the circumstances and I will allow counsel's fees as claimed.
6. The Respondents' costs following the Notice of Motion are also allowable. Mr Lord was not present at the hearing, and it is wholly reasonable that his legal advisor should confer with him at the conclusion of the hearing and provide any advice and clarification he may require. The costs are reasonable and reasonably incurred and I will allow these costs as claimed.
7. Mr Freidman has been the solicitor with carriage of this matter. His familiarity with the matter and the client makes it eminently sensible that he had the conduct of the Notice of Motion and the costs application. I do not consider it unreasonable that even at the hourly rate that he is charging, that he retained the carriage of the matter during the Notice of Motion and the costs application. I do not consider his costs to be unreasonably incurred or of an unreasonable amount. I decline to reduce the amount of the costs claimed.
[3]
Costs of the application for costs
The Respondents have been largely successful with respect to this application for costs and to that extent have been more successful that any offer for costs that was made by the Applicants prior to the matter being determined by the Court. Accordingly, it is appropriate that the Respondents are also entitled to the costs they claim for this application for costs.
[4]
Orders
The Court orders that pursuant to the provisions of s 155(8) of the Mining Act 1992 (NSW) the Applicants are to pay the Respondents costs of the Notice of Motion filed on 26 November 2021 and this application for costs in the sum of $12,925.
[5]
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Decision last updated: 03 June 2022