Minister for Resources and Energy v Gold and Copper Resources Pty Ltd (No 2)

THE COURT: Judgment was delivered in this matter on 4 May 2015 (Principal Judgment). [1] The Court made the following orders:

On 18 May 2015 the appellant (Minister) filed a notice of motion seeking a variation to the orders made by the Court in the Principal Judgment, by adding the following order:

The affidavit in support of the motion pointed out that order 3 made by the primary Judge on 17 September 2014 required Gold & Copper to pay the costs of the Minister and Newcrest of the proceedings up to 17 September 2014. The motion invoked Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 36.16(3A), which allows the Court to set aside or vary a judgment or order prior to entry of the judgment or order.

The Minister and Gold & Copper subsequently filed short minutes of order providing for the order sought by the Minister to be made by consent.

On 18 May 2015, a separate notice of motion was filed by Newcrest. It sought an order varying order 3 made by this Court in the Principal Judgment as follows:

The solicitors for Gold & Copper have indicated in correspondence with the solicitors for Newcrest that Gold & Copper does not consent to the orders sought by Newcrest. Its stance is based on the statement in the Principal Judgment that, as Newcrest’s interests appear to have been identical to those of the Minister, it should bear its own costs of the application for leave to appeal and of the appeal. [2]

It is correct that this Court did not specifically address order 3 made by the primary Judge on 17 September 2014. However, there is no basis in the Principal Judgment for setting aside the costs order made by the primary Judge. The statement in the Principal Judgment concerning the identity of interests of Newcrest and the Minister was made in relation to the application for leave to appeal and the appeal and was not made in relation to the proceedings before the primary Judge. Whether the Minister and Newcrest’s interests in the proceedings in the Land and Environment Court were identical has not been the subject of submissions in this Court.

The following order should be made:

There should be no order for the costs of the motions filed by the Minister and Newcrest.