Henry v ERO Georgetown Gold Operations Pty Ltd
[2014] QLC 21
•29 April 2014 [Ex tempore]
LAND COURT OF QUEENSLAND
CITATION: Henry v ERO Georgetown Gold Operations Pty Ltd [2014] QLC 21 PARTIES: Thomas Peter Henry
(applicant)v ERO Georgetown Gold Operations Pty Ltd
(respondent)FILE NO: MRA36-14 DIVISION: General Division PROCEEDING: Application to add parties DELIVERED ON: 29 April 2014 [Ex tempore] DELIVERED AT: Brisbane HEARD ON: 29 April 2014 HEARD AT: Brisbane MEMBER: PA Smith ORDERS: [After further submissions, the following orders were made]
1. Leave is granted for the amendment of the originating application in so far as those amendments do not relate to the joinder of parties.
2. Etheridge Shire Council is joined as the Second Respondent.
3. Lurleen Alison Young is joined as the Third Respondent.
4. The applicant file and serve its amended application giving effect to Orders 1 to 3 above by 4.00pm on 9 May 2014.
5. The matter be listed for hearing in Georgetown for three days from 15 July 2014, with the first day being set aside for a site inspection.
CATCHWORDS: PRACTICE AND PROCEDURE – JOINDER OF PARTIES – MATTERS TO BE CONSIDERED – ABILITY OF COURT TO adjudicate effectively and completely matters in DISPUTE
Mineral Resources Act 1989, s 363
Uniform Civil Procedure Rules, r 69(1)APPEARANCES: EJ Morzone of Counsel for the applicant
SA McLeod of Counsel for the Chief Executive, Department of Natural Resources and MinesSOLICITORS: Emanate Legal for the applicant
Miller Harris Lawyers for the respondent
Crown Solicitor for the Chief Executive, Department of Natural Resources and Mines
King and Company, Solicitors, for the Etheridge Shire Council
Background
The Court currently has before it a number of applications brought by the applicant in these proceedings which can be summarised in this way. Firstly, he seeks to amend the originating application by the addition of additional paragraphs and, indeed, relevant sections under the Mineral Resources Act 1989 (the MRA), which underpin the formulation of the applicant’s claim – that being specifically the addition of s 363 of the MRA.
The amendment, insofar as it relates to the addition of the various paragraphs to the originating application is not opposed by any party and it is therefore not necessary for me to give further consideration of that aspect of that undisputed matter. The matter which causes significant dispute between the parties, however, relates to the applicant’s application to join three parties to the proceedings. Those parties being firstly, the Chief Executive, Department of Natural Resources and Mines; secondly, the Etheridge Shire Council; and thirdly, Ms Lurleen Alison Young.
The application to have these parties joined is made pursuant to rule 69 of the UCPR. As the Land Court of Queensland rules do not specify any rules relating to the joinder of parties, it is not in dispute that the provisions of the UCPR and, in particular, rule 69 apply in the matter.
Rule 69(1) is in the following terms:
“69 Including, substituting or removing party
(1) The court may at any stage of a proceeding order that—
(a)a person who has been improperly or unnecessarily included as a party, or who has ceased to be an appropriate or necessary party, be removed from the proceeding; or
(b)any of the following persons be included as a party—
(i) a person whose presence before the court is necessary to enable the court to adjudicate effectually and completely on all matters in dispute in the proceeding;
(ii) a person whose presence before the court would be desirable, just and convenient to enable the court to adjudicate effectually and completely on all matters in dispute connected with the proceeding.”
In effect, rule 69(1)(b) has two limbs. The first is the limb in which it is relevant to consider if it is necessary for the party to be joined to enable the Court to adjudicate effectively and completely on all matters in dispute in a proceedings. The second limb is if it is desirable, just and convenient to enable a Court to adjudicate effectively and completely on all matters in dispute connected with the proceedings. It should be noted that it is not a matter so much as to the wishes of the party sought to be joined, as to whether they wish to be joined or do not wish to be joined. It is a matter for the effective discharge of the jurisdiction of the Court properly exercising its discretion as to whether or not rule 69 should be invoked.
I will look at some of the general law in this regard prior to giving my rulings with respect to each of the applications. In the Court of Appeal case of Leda Holdings v Caboolture Shire Council & Ors,[1] Justice of Appeal Keane (as his Honour then was), with whom the other members of the Court of Appeal agreed, had this to say at pages 6 to 7:
“The discretion conferred by rule 69 should be approached as intended to facilitate the determination of proceedings in accordance with the rules of natural justice. It should not be approached as if it were intended to restrict the availability of the common law right of a person likely to be affected by a decision to be heard in relation to that decision.
In Kioa v West (1985) 159 CLR 550 at 582, Mason J, as he then was, said:
"It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which
will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to begiven an opportunity of replying to it.”[1][2006] QCA 41.
The Court also has the benefit of another Court of Appeal decision, that being Mount Cathay Pty Ltd v Lend Lease Funds Management Limited and Ors.[2] In that case, the decision of the Court was primarily written by Justice Phillip McMurdo, with whom Justices White and Gotterson agreed. Justice McMurdo had the following to say at paragraphs 30, 31 and 32:
“[30]Lend Lease brought its proceedings only against the appellants. The second and third respondents were joined, or sought to be joined, by the appellant. The second respondent filed a notice of address for service on the date of the hearing before the primary judge. The third respondents resisted being joined and such part of the proceeding which concerned them was at first adjourned to a date to be fixed. But the ultimate outcome included an order that the application to join them be dismissed. The appellant was ordered to pay their costs as well as those of Lend Lease and the body corporate.
[31] They submit that there was no basis for an application to join them to these proceedings, foreshadowing an application for indemnity costs in respect of this appeal.
[32] In my view, there was a proper basis for their joinder under r 69 of the Uniform Civil Procedure Rules, although no claim had then been made by the appellant against them. They were parties whose presence before the Court was as least desirable, just and convenient to enable the Court to adjudicate effectually and completely on all matters in dispute connected with the proceeding. That is because the essential question before the primary judge was one of the proper interpretation of the grant of easement. As they were amongst the parties entitled to the benefit of that easement, they could have been properly joined so that that question of interpretation could be decided between all parties affected by the easement. Therefore the attempt to join them was not a step which would warrant the imposition of indemnity costs. The problem was that they were brought in so late, so that the proceedings as against them at first had to be adjourned. But that of itself would not warrant indemnity costs.”
[2][2012] QCA 274.
I should also note that I have read and considered a number of other authorities, including those authorities referred to by Mr Hales for the respondent. I note in particular the following authorities which I consider relevant to these proceedings, they being Nonmus & Anor v Sunshine Coast Regional Council;[3] MAM Mortgages Limited (in liquidation) & Anor v Cameron Brothers & Ors;[4] Coolum Properties Pty Ltd & Bunnings Group v Maroochy Shire Council & Ors;[5] M & H Noble Pty Ltd v PaulMarg Pty Ltd;[6] Reed v Gumeta Pty Ltd & Ors;[7] John Alexander Clubs Ltd v White City Tennis Club Ltd;[8] Australian Tape Manufacturers v The Commonwealth,[9] Penang Mining Company v Choong Sam[10] and Piesse Investments Pty Ltd v W R Mortgage Services P/L & Ors.[11]
[3](2011) QPEC 147.
[4][2002] QCA 330.
[5][2007] QCA 299.
[6](2009) QSC 265.
[7](2005) QDC 224.
[8]266 ALR 462.
[9][1990] 94 ALR 641.
[10](1969) 2 MLJ 52 at 55.
[11][2002] QCA 330.
What is clear to me from the reading of those authorities is that it is not a question of determining whether or not an entity is or is not interested, in the colloquial meaning of the term, in being joined in the proceedings. For instance, in the case of Noble, a party that was sought to be joined strenuously opposed the joinder but nevertheless, the Court was of the opinion that it was desirable, just and convenient to the Court to have that party joined. The other cases referred to all have various permeations of one party or another either supporting or opposing a joinder. The proper consideration under both rule 69(1)(b)(i) and (ii) centres on the ability of a Court to adjudicate effectively and completely the matters in dispute.
Although Mr Morzone’s application has been brought generally under rule 69(1)(b) and he does make reference to the word “necessary” in his application material, I am not satisfied that it is necessarily necessary for the parties mentioned to be joined. However, that is of course not the end of the matter, as there remains to be dealt with rule 69(1)(b)(ii). In determining whether or not is desirable, just and convenient to enable the Court to adjudicate effectively and completely on all matters in dispute connected with the proceedings, obviously it comes to an issue of discretion linked to the issues in dispute in this matter. It is therefore necessary to understand, at least briefly, the facts as they currently appear. These facts appear not to be in dispute.
The core nature of the dispute relates to the respondent, as holder of a mining lease, undertaking mining activities on that mining lease. Part of the mining activities undertaken of late by the respondent include mining activities on what can colloquially be referred to as a road or a track which is particularly used by the applicant in travelling to and from their property, but is also used, as I understand it, by Ms Young for travelling to and from her property – or at least is able to be used by Ms Young. It appears to be without doubt that the track has been formed and maintained by the Etheridge Shire Council and also that the Etheridge Shire Council is the trustee of a road reserve in the general vicinity, and that that road reserve bears the same name as the track involved in this matter, but that the track has been constructed off-reserve, so to speak.
So, in effect, the track or road has been constructed and maintained by the council on the private land of the applicant and Ms Young. It remains a question in dispute particularly in light of the amended pleadings, (and I note, in particular, amendment 3(b) of the originating application) as to whether or not the mining lease extends to Flat Creek Road – which is the name of the road in question, which I will use in a generic term to include either the gazetted road and/or the formed track or road.
The interests of the parties in this matter and, in particular that of the applicant, is that the alternate access to the applicant’s property involves, as I understand the evidence presented to date, a substantially longer trip to the nearest centre through which supplies can be obtained for the property and also tourists and others can access the property.
Having detailed in general terms the law relating to the application of rule 69 and the relatively uncontentious facts that currently exist in support of this application, it is now necessary to consider the status of each of the parties who have sought to be joined into these proceedings. I will deal first with the Chief Executive, Department of Natural Resources and Mines.
As I have already indicated the pleadings do stipulate through paragraph 3(b) the question as to whether or not the mining lease does or does not include the road in question. On first glance this would appear to be an issue which sufficiently meets the requirements of rule 69(1)(b)(ii) of the UCPR. However, closer examination does not bare this out. The State is the issuing authority for mining leases and as such is responsible for a huge number of mining leases that are granted by this State as a matter of its normal operations. That also is not in dispute.
Were the question of the rights and interests of parties under the mining lease to be considered whenever there was a dispute between land holders and miners, then the State, through its Chief Executive, would find itself necessarily caught up in a huge number of cases, and that clearly, in my view, is not the intention of either the MRA, which sets out specifically when the Chief Executive and/or one of his officers is to be included in proceedings under the MRA, nor does it appear to be the intention of rule 69 1(b)(i) or (ii) of the UCPR.
Although I can certainly see the benefits which may flow from having the Chief Executive involved in these proceedings, in my view, the benefit is not such as to trigger him being made a formal party to the proceedings for the purposes of rule 69. There are other ways in which evidence, as required, can be obtained by the applicant from the Chief Executive and/or the State; be that as a matter of calling witnesses, third party discovery of documentation, or whatever the case may be.
As is mentioned by Mr Hales in his submissions at paragraph 7:
The addition of three parties to a proceedings would contribute substantially to the complexity costs and need for the litigation without providing any significant benefit or resistance to the court in adjudicating the issues in dispute. The expected increase in costs and complexity would unjustly increase the burden upon the respondent and add a burden to those joined, which is not necessary or desirable in the circumstances.
Given the somewhat tenuous nature of the application insofar as it relates to the Chief Executive, I agree with the submissions made by Mr Hales, and accordingly, I do not propose to make an order that the Chief Executive of the Department of Natural Resources and Mines be joined to the proceedings.
I now turn to the position of the Etheridge Shire Council. The position of the Etheridge Shire Council is different to that of the Chief Executive. As a matter of observation the Etheridge Shire Council consents to being joined as a party. It does so on a basis that a road that they have constructed and maintained, and, therefore, have a financial interest in, is under question directly in these proceedings. Mr Hales concedes that property owned by the Etheridge Shire Council is included on the formed road by way of road base and the like.
In light of the authorities and despite the submissions by Mr Hales to the contrary, and including particularly his submissions which I have just referred to, I do consider that the inclusion of the Etheridge Shire Council as a party to these proceedings is desirable, just and convenient to the Court in these circumstances.
The Etheridge Shire Council, through Mr Hastie, has requested that they only be involved insofar as interlocutory proceedings are concerned; however, that is a matter which will be better dealt with as part of the orders that will be made as to the proper progression of this matter, and not as part of this application and decision.
I turn lastly to the application for joinder of Ms Young. Ms Young has made it somewhat difficult for the Court in this regard by choosing not to be heard on this application. Her failure to appear today, however, of course, does not, of itself, alter the question as to whether or not it is desirable, just and convenient to the Court to enable the Court to adjudicate effectively the issues in dispute in this matter. I have been troubled somewhat by the position of Ms Young, and, as a point of reality, am concerned that no matter what orders the Court should make, either joining or not joining her, it might make little difference as to what physical part Ms Young may play in the proceedings should the orders be that she be joined. However, that is not the test that I have to apply in these proceedings. The test is that clearly enunciated by rule 69.
As the question of the status of the mining lease, the track, and the gazetted road are clearly points in dispute, and in light of my decision that it is appropriate that the Etheridge Shire Council be joined to these proceedings, I consider it appropriate to also join Ms Young to these proceedings. Of course, once she has been joined in these proceedings, it should be made clear to Ms Young that it is a requirement that she should appear in all proceedings unless she formally seeks to be excused for whatever reason she considers appropriate. Specifically, I should point out that I have not been influenced by the reported statement by Ms Young that she was told at time of service that it was a matter for her whether or not she attended, and I make no findings in that regard at all with respect to the service of the proceedings on Ms Young.
One final point needs to be made and that is that the amended originating application makes reference to the various orders sought against the respondent. What should be done is the applicant should provide a fresh copy of the document to the Court and to the two new parties who have been joined naming the Etheridge Shire Council as the second respondent, Ms Young as the third respondent, and, of course, the current respondent as the first respondent, and clearly specifying in the amended originating application the orders that it seeks as against the first respondent instead of the generic reference to respondent. I order that that amended originating application be filed and served within 14 days, Mr Morzone.
Orders
[After further submissions, the following orders were made]
1.Leave is granted for the amendment of the originating application in so far as those amendments do not relate to the joinder of parties.
2. Etheridge Shire Council is joined as the Second Respondent.
3. Lurleen Alison Young is joined as the Third Respondent.4.The applicant file and serve its amended application giving effect to Orders 1 to 3 above by 4.00pm on 9 May 2014.
5.The matter be listed for hearing in Georgetown for three days from 15 July 2014, with the first day being set aside for a site inspection.
PA SMITH
MEMBER OF THE LAND COURT
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