Sykes v Minister for Mines and Energy

[2007] QLC 138

LAND COURT OF QUEENSLAND

CITATION:

Sykes v Minister for Mines and Energy & Anor [2007] QLC 0138

PARTIES:

Ian Grant Sykes
(appellant)

v.

The Minister for Mines Energy
and
Queensland Gas Co Limited
(respondents)

FILE NOS:

PGC00086/2007
PGC00114/2007

DIVISION:

Land Court of Queensland – general division

PROCEEDING:

Application in a proceeding for summary judgment and remove Member

DELIVERED ON:

19 December 2007 [Ex tempore]

DELIVERED AT:

Brisbane

HEARD AT:

Brisbane

MEMBER:

Mr PA Smith

ORDERS:

1.     The applications in a proceeding by Mr Sykes are dismissed.

2.     The costs recoverable by Queensland Gas Company Limited are fixed in the sum of Eight Hundred and Four Dollars and Thirty-three cents ($804.33).

3.     The costs recoverable by the Minister for Mines and Energy are fixed in the sum of Five Hundred and Thirty-eight Dollars and Twenty-eight cents ($538.28).

CATCHWORDS:

Application in a proceeding – summary judgment – removal of member – costs 

APPEARANCES:

Mr IG Sykes, for the appellant
Ms M Gittins of the Crowns Solicitor’s Office, for the Minister for Mines and Energy
Mr M Kimmins, solicitor, Corrs Chambers Westgarth,
for Queensland Gas Company Limited

Background:

1. I have before me an application brought by way of a general application by Mr Sykes seeking a number of orders.  The orders that he seeks are as follows:

   (1)that summary judgment be given that the supposed separate question in proceedings PGC00086/2007 and PGC00114/2007 can never arise on the grounds that no defendant or respondent or any other party can hobble, fetter, constrain or substitute alternative proposals for those which the Minister for Mines and Energy set out in his letter to the applicant dated 30 March 2007;

   (2)alternatively, if (1) fails than a new trial take place to determine the separate question as the Land Court directs;

   Queensland Gas Company Limited pay the applicant’s costs of the trial on 26-28 November and those incidental to this hearing at the standard rate.

   The application is opposed by both the first respondent, the Minister for Mines and Energy, and the second respondent, Queensland Gas Company Limited.

1. This matter has been before me for a number of months in one form or another.  It is a transitional matter having been commenced in the former Land and Resources Tribunal and jurisdiction for this matter transferred to the Land Court in September 2007. 

1. The issues between the parties are relatively complex.  Effecting a way of moving forward with both actions, on 11 October 2007 it was determined by consent that there be a preliminary question for both proceedings in the following terms:

   “whether or not at any time after 26 April 2000 the applicant had subsisting tenure or the right to tenure in the area of the subject petroleum leases nos. 72 and 73.”

   It was further ordered that in determining the question both PGC86 of 2007 and PGC114 of 2007 be heard together.  The hearing of that preliminary question took place before me over three days commencing 26 November 2007.

2. I should make one preliminary point at this time.  The Land Court issued an order relating to the matters that arose from the directions hearing on 11 October 2007 and I have noted from my material that the order is incorrectly dated 6 November 2007 and should of course be dated 11 October 2007 and I formally order that the date of the previous order be amended accordingly to 11 October 2007.  That amended order will be provided to the parties in due course.

1. The next preliminary point I should mention is that the hearing of both the directions hearing and the very commencement of the hearing of the preliminary question in this matter occurred at a time when there were difficulties with transcription services before the Land Court, particularly with respect to the digital transcription service.  Until yesterday it had been feared that the commencement hour of the hearing on 26 November 2007 had been electronically lost.  However, that has now come to hand and a copy of the transcript for those proceedings has just been handed to me but I have not had an opportunity to read it.  I have also been led to believe by the Land Court registry that the transcript for 11 October 2007 has also now been located but has not as yet been transcribed.

1. I now move to the substantive issues of this matter.  Mr Sykes is seeking two orders in the alternative.  The first deals with summary judgment.  The submissions by the first respondent in this respect are compelling.  In my view the issues raised by Mr Sykes in his summary judgment application currently before me are essentially the very issues (or contain part of the very issues) currently before me and were clearly argued by the parties with respect to answering the preliminary question.  I see the attempt by Mr Sykes as at best the ill-informed actions of an unrepresented litigant.  Even though this Court has gone out of its way to provide as much assistance as possible to Mr Sykes to lead him through the process at all times, in my view his application cannot be sustained.

1. I now turn to his alternate argument which is that a new trial take place.  The Court takes Mr Sykes’ application in this regard most seriously.  There are allegations raised by Mr Sykes regarding the conduct of counsel for the second respondent as well as the conduct of myself in the handling of his hearing.  It is a well-known fact that whenever unrepresented parties come before courts, particularly in circumstances involving relatively complex legislation as is the case in this matter, that difficulties can arise in the course of hearings.  That of course can be amplified when there are matter of preliminary questions of law being dealt with as well.

1. If I turn firstly to Mr Sykes’ complaints regarding my own conduct, in submissions today Mr Sykes said words to the effect that I am swayed by the documents to the extent that there is something seriously wrong or words to that effect.  He also suggested that I was of the view that the documents in question were clearly unfavourable to him.  He bases this in particular on the nature of the warning that I gave him.  I have not as yet re-read the transcript of this particular part of the hearing but my recollection of that day remains very clear.  Senior counsel for the second respondent indicated that there was a matter that was about to arise in cross-examination that could lead to Mr Sykes incriminating himself and senior counsel than gave an appropriate warning to Mr Sykes.  At that stage of course I had no idea what was going to be the subject of the questions or what was going to proceed in the hearing.  I then repeated the warning to Mr Sykes, that it is essential for people when they are under oath before a court of law to understand the seriousness of their situation and their responsibility to give truthful evidence but also the protection that the legal system provides them not to say or do anything in those circumstances that may lead them to incriminating themselves.

1. I next did something that not all members of the judiciary do but is something that over time and experience I have found to be essential in dealing with unrepresented litigants, and that is instead of simply asking the unrepresented litigants if they understood what has been said to them and receiving a bland yes or no, with experience saying that normally a person will say yes because they can be intimidated by the circumstances, it is my practice to ask unrepresented litigants if I am in any doubt whatsoever that they understand the process or if what is occurring is potentially very serious for them that it is essential they understand, such as questions that could lead to self incrimination, that in those circumstances I ask the unrepresented litigant concerned, which in this case was Mr Sykes, to repeat back to me what he has understood as the warming from both senior counsel and myself, which Mr Sykes did and it was quite clear that he had a good understanding of exactly what was occurring at that time and what was about to follow.  Mr Sykes attempts by his material to place my action at something above what it is.  It is simply the normal, and appropriate in my view, action of a judicial officer in undertaking the conduct of a hearing and ensuring that all parties receive justice and a fair hearing.

1. The next argument of Mr Sykes relates to the allegation principally set out in his Notice of Unfair Trial Affidavit that I became a witness before my own hearing in respect to matters mentioned at the directions hearing on 11 October 2007 and at the first day of hearing on 26 November 2007.  The proposition is totally untenable in my view.  I of course can find no authorities to support what I’m going to say because I’m not aware of it having been alleged in the past, but quite simply a court is, unless closed, an open place of hearing matters as a court of record, a transcript of what transpires is kept and any party not satisfied with anything that occurs before a judicial member may appeal those decisions.  That is the essence of how our judicial system works.  I find it flabbergasting that I could be accused of being a witness before one of my own matters when my only source of knowledge is that provided to me by the very parties appearing before me and I think nothing more needs to be said on that score.

1. I now turn to the allegations raised by Mr Sykes against the second respondent in particular.  Mr Sykes has gone to great lengths to complain about the conduct of senior counsel in the cross-examination, but as I have already set out earlier, I find that conduct to have occurred by senior counsel following appropriate warning which Mr Sykes clearly understood and to have clearly arisen on the documents that were put before him.  Mr Sykes understood that he could have objected to those documents.  Mr Sykes could have asked for time to consider his position.  Mr Sykes had many, many options available to him but his clear response was that the documents were the documents and he confirmed it was his handwriting and he believed that the matter should be proceeded with and we should just get on with it.  That’s very shorthand terminology that I’m using to describe his demeanour, but he certainly did not seek any additional time to consider those documents.  He now seeks to have other documents taken into account.  He also seeks to raise matters relating to what he refers to as an over-the-counter payment.  In many ways I see what he is complaining of as irrelevant to the determination of the questions before me, but if it should arise that any of the issues that he mentions have any relevance whatsoever then I will take the appropriate action at the time of writing my decision or immediately beforehand to deal with those issues then.

1. For the reasons I have set out above I am of the view that Mr Sykes’ applications for his orders nos. 1 and 2 are both misconceived and that they should both be dismissed and I order accordingly.

1. Both the Minister and the second respondent have sought awards of costs against Mr Sykes.  Of course both before the Land Court and the Land and Resources Tribunal there are certain preconditions which have to be fulfilled before an award of costs can be made.

1. I have been referred to the case of Bakhash & Ors v Monize[1] which was a matter decided by myself in the Land and Resources Tribunal.  In my view this is a circumstance where it is appropriate that an award of costs be made against Mr Sykes in favour of both respondents.

   [1]     [2003] QLRT 133.

1. As regards the application for costs by Queensland Gas Company Limited I order that the costs which will be recoverable be in the sum of $804.33 as set out in the schedule provided to the court.  [Following further submissions from Ms Gittens and Mr Sykes, the costs of the Minister for Mines and Energy to be paid by Mr Sykes were fixed in the sum of $538.28.]

1. The other matter I wish to raise, and its purely a matter for you, Mr Sykes, is that if you are appealing, an appeal does not of itself amount to stay although of course what you were seeking in having the matter reheard in the application before me was in effect a stay of the decision that I am making in the matter and I have treated it as such between receiving the application and today.  I thought it was appropriate to do that but from now on it doesn’t operate as a stay but if you did wish to appeal the matter to the Land Appeal Court then in those circumstances it may be that my matter should be stayed.  That would be in part a matter for the Land Appeal Court and in part a matter for you to include that in any application but I consider it appropriate in these circumstances that I advise you for that right that you have.

Orders

1.   The applications in a proceeding by Mr Sykes are dismissed.

2.   The costs recoverable by Queensland Gas Company Limited are fixed in the sum of $804.33.

3.   The costs recoverable by the Minister for Mines and Energy are fixed in the sum of $538.28.

P A SMITH

MEMBER OF THE LAND COURT