Sykes v Minister for Mines and Energy
[2008] QLC 116
•6 June 2008
LAND COURT OF QUEENSLAND
CITATION:Sykes v Minister for Mines and Energy & Anor [2008] QLC 0116
PARTIES:Ian Grant Sykes (applicant)
v.
The Minister for Mines and Energy and
Queensland Gas Co Limited (respondents)
FILENOS: PGC00086/2007 PGC00114/2007
DIVISION: Land Court of Queensland – General Division
PROCEEDING: Application for costs
DELIVERED ON: 6 June 2008
DELIVERED AT: Brisbane
HEARD AT: Brisbane
MEMBER: Mr PA Smith
ORDERS: 1. I order that Mr Sykes pay 40% of the costs of the Minister as assessed on the standard basis.
2. I order that Mr Sykes pay 50% of the costs of QGC as assessed on the standard basis.
3. I order the Minister and QGC to prepare detailed short form assessments of costs with respect to proceedings PGC00086/2007 and PGC00114/2007 respectively, such assessments to be filed in the Court and served on Mr Sykes by 4.00pm on 7 July 2008.
4. Should Mr Sykes wish to contest the costs assessments of either the Minister or QGC, Mr Sykes is to file and serve on both the Minister and QGC his submissions in response to the assessments by 4.00pm on 28 July 2008.
5. Both the Minister and QGC may reply to any response material filed and served by Mr Sykes by 4.00pm on 4 August 2008.
6. Unless any party makes submissions that they wish to be heard orally on the assessment of costs, orders assessing costs will be made on the papers.
CATCHWORDS: STATUTORY INTERPRETATION – proceedings
commenced in the Land and Resources Tribunal and concluded in the Land Court – Land Court Act 2000 s. 91
PRACTICE AND PROCEDURE – costs - discretion
APPEARANCES: Mr IG Sykes, in person
Mr GD Sheahan (instructed by the Crown Solicitor), for the Minister for Mines and Energy
Mr JD McKenna SC and Mr D Kelly (instructed by Corrs Chambers Westgarth, Solicitors), for Queensland Gas Company Limited
Background
[1]Ian Grant Sykes (Mr Sykes) commenced two proceedings in 2007 in the Land and Resources Tribunal. Mr Sykes commenced action no. PGC00086/2007 against the Minister for Mines and Energy (the Minister) and action No. PGC00114/2007 against Queensland Gas Co Limited (QGC). On 23 April 2008 I delivered my decision on a preliminary question in both matters and, as a consequence, I ordered that both actions be dismissed.1 Following on from my orders to dismiss both actions brought by Mr Sykes, applications for costs have now been made by the Minister and QGC.
Submissions regarding costs
[2]All parties filed and served submissions regarding costs by 9 May 2008 as ordered. No party took advantage of the opportunity to file any submissions in reply, the time for same expiring at 4.00pm on 23 May 2008.
[3]In his submissions, Mr Sykes contends that it is not appropriate to award costs in these matters as “the Land Court Act 2000 does not allow them”.2 Mr Sykes contends that neither of his actions can be considered vexatious or frivolous. As regards the Minister, Mr Sykes contends that his proceedings flow directly from the Minister’s letter dated 30 March 2007. As regards QGC, Mr Sykes points to decisions by Justice Muir in the Supreme Court on or about 8 March 2007. Mr Sykes goes on to make allegations regarding the conduct of QGC and Counsel for QGC and claims that “counsel are on some type of extra-ordinary incentive to obtain costs from me, to bankrupt me, and to cause the dissolution of Petroleum Leases 72 and 73 which, I believe, have been coveted by the said QGCL for years”.3
See [2008] QLC 0069.
“Affidavit on costs submission made prior to costings” by Mr Sykes received at the Land Court on 8 May 2008, paragraph 1.
Ibid, at paragraph 4.
[4]Mr Sykes also seeks that I be disqualified from making a determination of costs in these matters. Mr Sykes’ submission in this regard is as follows:4
“I hereby apply to the Land Court to have some other judge than Mr. Paul Smith hear the cost matters. My ground is that I believe Mr. Smith has failed to adhere to the instructions given to judges by King James the First, early in the 17th Century, such instructions having never been withdrawn by Her Majesty or by any of her forbears, or by any Parliament in the United Kingdom or of the States of Australia or the Commonwealth of Australia.”
[5]The Minister seeks an order that Mr Sykes pay the Minister’s costs of and incidental to proceeding PGC00086/2007. In submissions in support of that contention, Mr Sheahan for the Minister has raised as an issue whether costs should be awarded under the Land and Resources Tribunal Act 1999 (LRT Act) or the Land Court Act 2000 (LC Act). After considering various statutory provisions, Mr Sheahan concludes that, irrespective of whether the cost provisions of the LRT Act or the LC Act apply, costs should be awarded in favour of the Minister.5
[6]In their submissions, Counsel for QGC have also examined the relevant legislative provisions. In adopting the view most favourable to Mr Sykes, QGC has submitted that pursuant to s. 50 of the LRT Act, special circumstances exist that warrant an award for costs and that an appropriate course is for Mr Sykes to be ordered to pay at least a proportion of QGC’s costs. As submitted by Counsel, “this portion should represent the extent to which QGC’s costs have increased because of Mr Sykes’ unreasonable conduct. In the circumstances of this case, a conservative measure of these costs would be one half of QGC’s costs of proceeding PGC00114/2007 assessed on a party/party basis.”6
Determination
Section 91 of the LC Act provides in subsections (1) and (2) as follows:
91 Land Court to assume jurisdiction for proceedings already before the LRT
(1)This section applies to a proceeding if—
(a) the proceeding was started in the LRT before the commencement of this section; and
(b) immediately before the commencement of this section, the proceeding had not finally been disposed of; and
(c) if the proceeding had been started after the commencement of this section, the proceeding would have been started in the Land Court.
(2)The Land Court has jurisdiction to finish a proceeding to which this section applies and for that purpose—
(a) the proceeding is a proceeding in the Land Court; and
(b) the Land Court has all the powers of the LRT.
Ibid at paragraph 7.
Submissions of Mr Sheahan filed 9 May 2008, paragraph 20.
Submissions, QGC, filed 9 May 2008, paragraphs 82-83.
The Land Court’s power to award costs is set out in s. 34(1) and (2) of the LC Act as follows:
35 Costs
(1)Subject to the provisions of this or another Act to the contrary, the Land Court may order costs for a proceeding in the court as it considers appropriate.
(2)If the court does not make an order under subsection (1), each party to the proceeding must bear the party’s own costs for the proceeding.
Clearly, s. 34 of the LC Act provides the Land Court with a wide discretion to award costs in any matter, subject of course to other statutory considerations. The question then arises, when s. 91 is taken into account, whether costs of a proceeding commenced in the Land and Resources Tribunal but finished in the Land Court should be awarded pursuant to s. 34 of the LC Act or the LRT Act. Pursuant to s. 50 of the LRT Act, each party in a proceeding before the Land and Resources Tribunal is to bear their own costs unless the Tribunal considers that, given the special circumstances of the proceeding, an award for costs is appropriate.
[10]In my view, the appropriate section to use when considering an application for costs for a matter commenced in the Land and Resources Tribunal but concluded in the Land Court is s. 34 of the LC Act. Section 91 of the LC Act was inserted by the Land Court and Other Legislation Amendment Act 2007, the object of which was to transfer the great majority of the Land and Resources Tribunal’s jurisdiction to the Land Court. Both proceedings instituted by Mr Sykes fall within the category of jurisdiction transferred from the Land and Resources Tribunal to the Land Court. The question then arises, does s. 91(2)(b) of the LC Act limit the powers of the Land Court to the powers of the Land and Resources Tribunal? I agree with the submissions made by Mr Sheahan for the Minister that the legislature did not intend that the Land Court, in assuming the conduct of a proceeding from the Land and Resources Tribunal, would have its powers restricted. Clearly, the better interpretation is that s. 91(2)(b) of the LC Act is intended to pick up any powers unique to the Land and Resources Tribunal, not found in the LC Act, which may be required by the Land Court to continue and determine a proceeding commenced in the Land and Resources Tribunal.
[11]In the circumstances of both proceedings instituted by Mr Sykes, in my view, even if the provisions of s. 50 of the LRT Act relating to costs were to be preferred over the more general provisions of s. 34 of the LC Act, special circumstances exist in this matter to warrant an award for costs against Mr Sykes in both matters. In this regard, I rely upon various authorities from the Land and Resources Tribunal such as Bakhash & Ors v Monize,7 Junior Mining (Operations) Pty Ltd & Schmidt,8 Wallace & Evans v Johnston & Anor,9 Leinung v Mann10 and Salmon v Armstrong.11
[2003] QLRT 133.
[2004] QLRT 131.
[12]I am mindful of the fact that unless the Court makes an order for costs under s. 34(1) of the LC Act, pursuant to s. 34(2) of the LC Act each party must bear their own costs for a proceeding. I am also cognizant of the fact that the Land Court regularly makes no awards for costs in proceedings, or orders that each party must bear their own costs. However, I agree with the submissions made by Counsel for QGC that, given the circumstances of this matter, it is appropriate that an order be made that Mr Sykes pay at least part of QGC’s costs. Counsel for QGC have gone to some length in their submissions to detail aspects of Mr Sykes’ conduct of the proceeding which were unreasonable and caused greater costs to be incurred by QGC than should be anticipated for a matter such as this which was determined by a preliminary question. I also note the contents of the affidavit of Michael John Kimmins, solicitor for QGC sworn 9 May 2008. In that affidavit, Mr Kimmins estimates that in excess of 50% of QGC’s costs have arisen due to Mr Sykes’ unreasonable conduct of the proceedings. I agree with the submissions by Counsel for QGC and Mr Kimmins. In my view, it is appropriate to award costs to QGC assessed at one-half of QGC’s costs of proceeding PGC00114/2007 on the standard basis.
[13]Similar considerations apply with respect to the question of an award of costs in favour of the Minister in proceeding PGC00086/2007. Although the Minister seeks all of its costs against Mr Sykes, I consider it appropriate to adopt a similar approach to that as I have proposed for QGC’s costs. However, as regards the Minister’s costs, I agree with the submissions made by Mr Sykes that, in commencing his action against the Minister, Mr Sykes was following the course proposed to Mr Sykes by the Minister in the Minister’s letter of 30 March 2007. As can be seen from my decision of 23 April 2008,12 in my view the Minister was in error in dealing with Mr Sykes’ applications for renewal of Petroleum Leases 72 and 73 in the manner he did. Of course, even given such wrong advice, that does not impact on the ultimate conclusion that Mr Sykes had not complied with the provisions of the Petroleum Act 1923 as regards PL 72 or PL 73 for the reasons set out in my decision of 23 April 2008, and thus the Minister has successfully defended the proceedings instituted by Mr Sykes. In the circumstances, I consider it appropriate that the costs of the Minister should be reduced somewhat as compared to those awarded to QGC, and accordingly I propose that Mr Sykes be ordered to pay 40% of the costs of the Minister in proceeding PGC00086/2007 as assessed on the standard basis.
[2001] QLRT 23.
[2000] QLRT 6.
[2002] QLRT 54.
[2008] QLC 0069.
[14]I note that the solicitors for QGC have indicated their willingness to provide the Land Court with a list of costs for either review by myself or assessment by the Registrar of the Land Court. In my view, the most productive and efficient way of proceeding in this matter is for both the Minister and QGC to prepare a comprehensive short form assessment of their costs in each proceeding and to file such assessment in the Land Court and serve same on Mr Sykes, and for Mr Sykes to be given an opportunity to make submissions with respect to such costs, and then for a determination on such costs to be made by myself. As Mr Kimmins has indicated in his affidavit that a substantial amount of work will be required to produce an assessment of costs, I am prepared to allow both QGC and the Minister a period of one month to prepare such assessments, and for Mr Sykes to have a period of three weeks to make any submissions he considers appropriate with respect to such costs assessments. In allowing Mr Sykes the period of three weeks to make any response, I am mindful of the fact that Mr Sykes resides in Victoria and the only means of contact that the Land Court has with Mr Sykes is via a postal address which has the result in additional time than what would otherwise be expected being required for Mr Sykes to both receive material from the Court and the other parties and respond to same.
[15]Unless any party makes submissions that they wish to be heard orally on the assessment of costs, orders assessing costs will be made on the papers.
[16]The final matter to consider is that of Mr Sykes’ contention that ‘some other judge’ other than myself should consider the question of costs in these matters. Save for the bear assertion that I have failed to consider some instruction given to judges by King James the First in the early 17th century, Mr Sykes provides no details of the reasons why, given the provisions of the LC Act 2000, I should not consider the determination of costs in these proceedings. I reject Mr Sykes’ contentions. Unfortunately, the making of such contentions by Mr Sykes is symptomatic of Mr Sykes’ unreasonable conduct throughout these proceedings.
Orders
I order that Mr Sykes pay 40% of the costs of the Minister as assessed on the standard basis.
I order that Mr Sykes pay 50% of the costs of QGC as assessed on the standard basis.
I order the Minister and QGC to prepare detailed short form assessments of costs with respect to proceedings PGC00086/2007 and
PGC00114/2007 respectively, such assessments to be filed in the Court and served on Mr Sykes by 4.00pm on 7 July 2008.
4.Should Mr Sykes wish to contest the costs assessments of either the Minister or QGC, Mr Sykes is to file and serve on both the Minister and QGC his submissions in response to the assessments by 4.00pm on 28 July 2008.
5.Both the Minister and QGC may reply to any response material filed and served by Mr Sykes by 4.00pm on 4 August 2008.
6.Unless any party makes submissions that they wish to be heard orally on the assessment of costs, orders assessing costs will be made on the papers.
P A SMITH MEMBER OF THE LAND COURT
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