Hancock Coal Pty Ltd v Kelly (No. 3)
[2013] QLC 59
•18 September 2013 [Ex tempore]
LAND COURT OF QUEENSLAND
CITATION: Hancock Coal Pty Ltd v Kelly & Ors (No. 3) [2013] QLC 59 PARTIES: Hancock Coal Pty Ltd
(applicant)v.
Kathryn Kelly, Paul and Janeice Anderson, Coast and Country Association of QLD Inc, Patricia Julien of Mackay Conservation Group, Fiorella Paola Cassoni and Bruce and Annette Currie
(objectors)Chief Executive, Department of Environment and Heritage Protection
(Statutory Party)FILE NOs:
MRA082-13
EPA083-13
DIVISION: General Division PROCEEDING: Application to lead further evidence DELIVERED ON: 18 September 2013 [Ex tempore] DELIVERED AT:
HEARD ON:
Brisbane
18 September 2013
HEARD AT: Brisbane MEMBER: PA Smith ORDERS: 1. Mr Currie is permitted to give additional evidence as to the reasonableness of his actions and negotiations with respect to entering into a make good agreement with the applicant. CATCHWORDS: Practice and Procedure — receipt of evidence — question of confidentiality — court timetabling of evidence — principles of equity and good conscious Land Court Act 2000
Native Title Act 1993 (Cwth)APPEARANCES: Mr Clothier of Queens Counsel and Mr A Pomerenke of Counsel, for the applicant
Ms Kathryn Kelly, self-represented objector
Mrs Janeice Anderson, self-represented objector
Mr Finanzio of Senior Counsel, Dr McGrath of Counsel and Mr Watters of Counsel, for the objector Coast and Country Association of QLD Inc
Ms Fiorella Paola Cassoni, self-represented objector
Mr Bruce Currie, self-represented objector
Mr Loos of Counsel for the Statutory Party
SOLICITORS: Allens for the applicant
Environmental Defenders Office (QLD) Inc for the objector Coast and Country Association QLD Inc
Legal Services, Department of Environment and Heritage Protection for the Statutory Party
[Following his cross-examination, one of the objectors, Mr Currie, sought leave to tender a document and lead further evidence as to the reasonableness of his conduct in make good agreement negotiations. The applicant objected on the basis that this amounted to fresh evidence, and said all evidence was closed in accordance with the Court ordered timetable for the provision of such evidence. Mr Currie countered that the evidence could be led in light of a breach of privilege by the applicant.]
It is the legislative charter of the Land Court to act with as little technicality and formality as is possible to ensure a just outcome in cases and to apply principles of equity and good conscience.[1] Unfortunately, despite those high-minded principles, matters can descend into being highly technical at times. I do believe that the overarching principle is, if I can put it this way, that the Land Court is a Court that is some 130 years old and, over that period, has been viewed as either the Landholders Court – as a forum to which landholders originally came relating to valuation and other matters – and has been more recently referred to as the “Peoples Court” – as a Court to which people can come when their land interests are affected to receive, in Australian terms, “a fair go”.
[1] See s 7 Land Court Act 2000.
In determining this peculiarly complex matter that has arisen, to me it is essential to go back to the cross-examination of Mr Currie that commenced the discourse. In answer to a question from Mr Clothier as to negotiations that had occurred with Hancock, Mr Currie said that he had had dealings with Hancock, not negotiations, making a clear distinction between negotiations and dealings. That led to the re-examination by Mr Currie where he referred to the concerns he had regarding the attacks that had been raised upon him and he wished to go further into material in light of what he saw as attacks on his character; or to put it in a better way, as he did in the conclusion of his submissions: a question that he sees as to the justice in which the case can be conducted.
I note the issues raised by Mr Loos that there is a question as to the relevance of the underlying issues to the case at hand. That is, in simple terms, there has not been a make good agreement reached between the applicant and Mr Currie, despite negotiations, and that is the end of it. And it would have, in my view, been better if all affidavit material had stated that and no further, as has been my experience in practice over many decades, particularly in dealing with confidential right to negotiate provisions under the Native Title Act 1993 (Cwth), where good faith negotiation were always a key component. Therefore this element of the law with respect to what reference can be had to confidential negotiations in proving good faith is one which is not foreign to me in any way.
Despite the concerns of Mr Loos, and also taking fully on board the comment by Mr Clothier that it is not the intention of Hancock, in any way, to attack the credit of Mr Currie, in my view, the issue of credit has been opened up to some degree by the question that was asked of Mr Currie and, in particular, more so by his answer relating to the distinction between dealings and negotiations. That was, in many ways, Mr Currie bringing into question the conduct of Hancock just as much as it has been seen to be Hancock bringing into question the negotiations of Mr Currie. I have not viewed the document that Mr Currie seeks to tender but I am concerned that that document goes into issues relating to the content of the negotiations for make good agreements that are beyond the scope of what this Court is required to look at in this hearing.
I do not accept, at this stage, that the breach, if any, that may have occurred as to confidentiality by Hancock would extend to the content of the make good negotiations themselves, but rather to the conduct of parties in those make good negotiations, which is a different conceptual point, and also, of course, to the payment of fees relating to those negotiations, which is a separate point again. I know I am dealing with issues of great subtlety in this regard, but it is important, bearing in mind complete fairness, not only to Mr Currie, but also to Hancock, that these issues of subtlety are not missed. I am doing my best to ensure fairness to all parties in that regard.
I do believe that there has been a waiver of privilege to a limited extent with respect to the reference to the non-payment of fees and the quantum of those fees beyond that which I would normally expect to occur in affidavit material placed before the Court relating to what are without prejudice discussions. However, I do not think it appropriate to go the extra step in allowing the door to be opened into the general negotiations that have occurred between the parties, specifically relating to the make good agreements. I have not viewed the email that is in question in this matter and without viewing that email, it is difficult for me to know what parts of that email go to the make good negotiations, and what parts go to the quantum.
As I have indicated, whether or not the quantum is even relevant in this regard is probably of little utility. However, I have said all of that to lead to this conclusion; and it is that Mr Currie has had a question raised under cross-examination or, in particular, by the mode of his answer as to the state of negotiations between himself and Hancock. There is a complex background to the manner that has arisen to which, in my view, blame or inadvertence can be attributable to both Mr Currie and to Hancock in going into areas that relate to the negotiations that have occurred in a without prejudice basis relating to the make good agreements.
Despite what Mr Clothier says about the reference to the entering into make good agreements with the other parties or with other landowners in the area, in my view, there is a clear inference to be drawn that Mr Currie, Mr and Mrs Anderson, and Ms Cassoni have not acted reasonably and that those who have entered into the make good agreements have acted reasonably, as has Hancock. Whether and to what extent that inference manifests itself in any submissions as to the credibility of witness or otherwise is, of course, something that will be only seen at the end of the day and it may go no further than that, but I think it is an important inference to note that is clearly available on the material as currently viewed by the Court.
What I am prepared to do is to give some limited scope to Mr Currie to give further evidence as to his concerns regarding the reasonableness of his conduct in negotiations, which have occurred between himself and Hancock and other landowners, with respect to the make good agreement. I need to make it clear, though, that I do not want to hear details of the terms of the actual negotiations themselves, but the manner in which those negotiations have been conducted. Again, there is a subtle difference in that.
Mr Clothier has asked that that evidence be submitted in a statement form, but given the constraints of time in this matter, I am content to allow Mr Currie to give such evidence in oral form and to defer any cross-examination that may flow from that until such time as Mr Clothier and his team have had an opportunity to consider that material. I do this in the knowledge that we are having a running transcript made of the evidence. So any evidence given will be available in hard copy form within, I understand, hours of that evidence having been given.
Orders
1.Mr Currie is permitted to give additional evidence as to the reasonableness of his actions and negotiations with respect to entering into a make good agreement with the applicant.
P A SMITH
MEMBER OF THE LAND COURT
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