Sykes v Minister for Mines and Energy and Queensland Gas Company Limited
[2009] QLAC 1
•12 February 2009
LAND APPEAL COURT OF QUEENSLAND
CITATION:
Sykes v Minister for Mines and Energy and Queensland Gas Company Limited [2009] QLAC 0001
PARTIES:
IAN GRANT SYKES
(appellant)
V
MINISTER FOR MINES AND ENERGY
(first respondent)
and
QUEENSLAND GAS COMPANY LIMITED(second respondent)
FILE NOS:
LAC2008/0043 and LAC2008/0712 and LAC2008/0758
DIVISION:
Land Appeal Court of Queensland
PROCEEDING:
Appeal against decisions on costs of the Land Court of Queensland
ORIGINATING COURT:
Land Court of Queensland
DELIVERED ON:
12 February 2009
DELIVERED AT:
Brisbane
THE COURT:
White J
Mr RP Scott, Member of the Land CourtMr RS Jones, Member of the Land Court
ORDERS:
The appeal against the order of the Land Court that the appellant pay 50 per cent of the second respondent's costs of the hearing of the preliminary question is dismissed.(1)
The appeal against the order of the Land Court that the appellant pay the second respondent's costs in the amount of $82,463.00 is dismissed.(2)
The appeal against the order of the Land Court that the appellant pay 40 per cent of the first respondent's costs of the hearing of the preliminary question is allowed.(3)
Instead order that there be no order as to the costs of the first respondent.(4)
The appellant is to pay the second respondent's costs of and incidental to the appeal on the standard basis. (5)
CATCHWORDS:
PROCEDURE – REAL PROPERTY – VALUATION OF LAND – OBJECTIONS AND APPEALS – QUEENSLAND – COSTS – the appellant appeals orders of the Land Court ordering that he pay 50 per cent of the second respondent's cost and 40 per cent of the first respondent's costs – whether the costs orders were appropriate – whether the learned Member gave adequate weight to the conduct of the first respondent in relation to this litigation is awarding costs
STATUTES – ACTS OF PARLIAMENT – INTEPRETATION – PARTICULAR WORDS AND PHRASES – SPECIFIC INTERPRETATIONS – a legislative amendment transferred the jurisdiction of the Land and Resources Tribunal to the Land Court – this proceeding was commenced before the Land and Resources Tribunal but was transferred as a result of the amendment – whether the award of costs should be determined under the Land Court Act 2000 or the Land and Resources Tribunal Act (Qld)
Acquisition of Land Act 1967 (Qld), s 27
Acts Interpretation Act 1954 (Qld), s 20
Land and Resources Tribunal Act 1999(Qld), s 50
Land Court Act 2000 (Qld), s 34, s 56, s 91, s 94
Land Court and Other Legislation Amendment Act 2007 (Qld)Valuation of Land Act 1944 (Qld), s 70
Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSW LR 378
House v The King (1936) 55 CLR 499, cited
Latoudis v Casey (1990) 170 CLR 534, cited
Oshlack v Richmond River Council (1998) 193 CLR 72, cited
Public Service Board of New South Wales v Osmond (1986) 159 CLR 656, cited
Re: Cooke [1997] 1 Qd R 15, citedSun Alliance v Massoud [1989] VR 8, cited
APPEARANCES:
Mr IG Sykes appeared in person
Ms T Havas, solicitor, for the first respondentMr J McKenna SC for the second respondent
SOLICITORS:
Crown Solicitor for the first respondent
Corrs Chambers Westgarth for the second respondent
The appellant, Mr Sykes, has brought appeals from three decisions of the Land Court. The first[1] is against the decision of the Land Court on 6 June 2008 ordering Mr Sykes to pay 40 per cent of the first respondent’s ("the Minister") costs and 50 per cent of the second respondent's, Queensland Gas Company Limited, ("QGC") costs associated with certain proceedings in that Court. The second[2] and third[3] appeals are against specific orders made by the learned Member that Mr Sykes pay $28,820.86 of the first respondent's costs[4] and $82,463.00 of the costs of the second respondent.[5]
[1]LAC 2008/0043.
[2]LAC 2008/0712.
[3]LAC 2008/0758.
[4]Order of the Court, 25 August 2008. Appeal Record (AR) P70.
[5]Order of the Court, 25 August 2008. AR P183.
Background
Mr Sykes has at all material times maintained that he had subsisting tenure or the right to tenure in respect of certain Petroleum Leases namely PL72 and PL73. On 30 March 2007 the Minister purported to cancel PL72 and PL73 essentially on the grounds that Mr Sykes had failed to comply with the terms and conditions of the leases and/or the obligations imposed on him pursuant to the Petroleum Act 1923.
Prior to the cancellation of PL72 and PL73, on or about 19 January 2001 QGC commenced drilling on what became its Petroleum Lease 179 and on or about 14 June 2002 commenced drilling on what became its Petroleum Lease 201. On 13 December 2006 Mr Sykes commenced proceedings in the Supreme Court against QGC for orders to compel it to rename its wells and claiming a share of the coal bed methane gas contained in those wells which were allegedly tapping into the same gas reservoir covered by PL72.
On 21 December 2006, Muir J (as his Honour then was) heard an application by QGC to strike out Mr Sykes' statement of claim. At this hearing, his Honour ruled that the statement of claim did not satisfy the requirements of the Uniform Civil Procedure Rules 1999. Accordingly, it was struck out with liberty to Mr Sykes to apply within 60 days to file and serve an amended statement of claim. On 5 February 2007 Mr Sykes filed an application for leave to amend the statement of claim and on 1 March 2007 QGC filed a cross application to strike out Mr Sykes' proceedings. These applications were heard by Muir J on 7 March 2007 and on the following day he struck out the proceedings on the ground that the amended statement of claim demonstrated no reasonable cause of action.
On 12 March 2007, Mr Sykes commenced fresh proceedings against QGC in the Supreme Court claiming the payment to him of certain monies and an injunction restraining it from producing gas from its wells on PL201. QGC applied to strike out that statement of claim and/or the proceedings on the basis that the claim was not properly pleaded and could not be made good. When that application came on for hearing on 15 June 2007, Chesterman J (as his Honour then was) struck out Mr Sykes' statement of claim and stayed the Supreme Court proceedings pending Mr Sykes obtaining an expert’s report supporting the factual basis of his claim and the determination of the dispute between Mr Sykes and the Minister as to his entitlement to PL72. The Land and Resources Tribunal ("LRT") then had jurisdiction to decide that dispute.
Appeals to the Court of Appeal against the orders made by Muir J and Chesterman J were dismissed. However, before those appeals were heard, Mr Sykes commenced proceedings in the LRT against QGC pursuant to s 116 of the Petroleum and Gas (Production and Safety) Act 2004, seeking an order concerning the amount of coal bed methane gas allegedly owned by him being produced from PL201 and other consequential orders concerning production of methane gas.
The High Court refused Mr Sykes' application for special leave to appeal the decisions of the Court of Appeal on 27 March 2008.[6]
[6][2008] HCA SL 95.
The situation was that at the time he instituted proceedings in the LRT against QGC Mr Sykes' Supreme Court proceedings against QGC remained on foot, but stayed until the determination of his title to PL72 in the LRT and the provision of the independent expert's report.
On 18 April 2007 Mr Sykes commenced proceedings in the LRT seeking to have the Minister's decision to cancel PL72 and PL73 overturned and, following a directions hearing on 3 May 2007, a stay of the Minister’s decision to cancel PL72 and PL73 was granted. Mr Sykes then filed an amended application in the Tribunal on 8 May 2007. On 21 September 2007, the relevant jurisdiction of the LRT was transferred to the Land Court.[7] After that date proceedings commenced in the LRT were continued in the Land Court.
[7]Land Court and Other Legislation Amendment Act2007.
The Land Court Proceedings
On 11 October 2007, the Land Court ordered by consent of the parties that the following preliminary question be heard and determined.
"Whether or not at any time after 26 April 2000 the applicant had subsisting tenure or the right to tenure in the area the subject of Petroleum Lease numbers 72 and 73."
The preliminary question was heard from 26 to 28 November 2007. On 23 April 2008, the Land Court determined the preliminary question against Mr Sykes.[8] Mr Sykes appealed that decision to the Land Appeal Court which, on 10 November 2008[9] dismissed Mr Sykes’ appeal. On 11 November 2008 the Land Appeal Court ordered Mr Sykes to pay the Minister’s and QGC’s costs of and incidental to the appeal.
[8][2008] QLC 0069.
[9][2008] QLAC 0201.
Following the determination of the preliminary question the learned Member heard submissions about costs. On 6 June 2008[10] the learned Member ordered Mr Sykes to pay 40 per cent of the Minister’s costs and 50 per cent of QGC’s costs both to be assessed on the standard basis. The learned Member made consequential orders concerning the actual assessment of costs. After hearing further from the parties the learned Member made the specific orders concerning the quantification of the costs referred to in paragraph [1].
[10][2008] QLC 0116.
In a lengthy and discursive document Mr Sykes filed his notice of appeal against the first of the orders made by the learned Member about costs[11] on 6 June 2008. The following have been extracted from those grounds and were developed by Mr Sykes in oral submissions.
(i)The determination about the proportion of costs to be paid was entirely arbitrary and without reasonable foundation.
(ii)In no circumstances could the Minister be entitled to any costs when Mr Sykes was doing what the Minister had advised him to do in his letter of 30 March 2007.
(iii)The behaviour of QGC in respect of Mr Sykes' title to PL72 and PL73 left him with no alternative but to bring the proceedings.
(iv)There was no unreasonable conduct by Mr Sykes about the conduct of the preliminary question and it could not be said that he was responsible for prolonging those proceedings.
(v)The authorities relied on by the Member below in reaching his conclusions about costs were irrelevant.
(vi)The Land Court being a Court of "equity and good conscience" ought not have made orders as to costs.
There are, in fact, about 23 grounds of appeal identified by QGC and which it responded to in written submissions but all need not be separately addressed.
[11]AR, Vol 7, pp 195 to 199.
The grounds of appeal about the orders quantifying the actual costs to be paid by Mr Sykes are in identical terms and are to the effect that it was an "arithmetic impossibility" that he had caused the costs of the respondents to rise above that which would have been associated with the hearing of the preliminary question in any event. Mr Sykes informed the Court that he has accounting qualifications.
The Quantification of Costs
The court was not taken to any probative material by Mr Sykes nor did he engage in analysis of the various bills of costs which showed that if the learned Member's apportionment of costs was a legitimate exercise of his discretion, his quantification in the amounts of $28,820.86 in favour of the Minister and $82,463.00 in favour QGC were, of themselves, unreasonable. Mr Sykes did challenge a number of consultations between senior and junior counsel for QGC on the ground that dates did not correspond and the consultations could not have occurred. The Court is satisfied that not every consultation between counsel was charged by both.
The learned Member had considerable experience as a legal practitioner in taxing costs.[12] He gave Mr Sykes the opportunity to go item by item through each bill of costs which was challenged and made rulings as he proceeded. Mr Sykes had some success before the learned Member in reducing the bill of QGC. The exercise appears to have been quite lengthy occupying nearly 50 pages of single spaced type script.
[12]Appeal Book on costs awarded on 25 August 2008, transcript 8 (15 of record).
At the hearing of these appeals on 12 November 2008, consistent with the bulk of the written material filed by him, Mr Sykes’ submissions were primarily concerned with the percentage apportionment of costs determined against him. On more than one occasion Mr Sykes submitted to the effect that on the best case for the respondents they would have been entitled to no more than 25 per cent of their costs. Mr Sykes was not, by that contention, conceding that the respondents were entitled to any of their costs.
Land and Resources Tribunal or Land Court Costs?
As mentioned above, by amendments to the Land Court Act 2000[13] in 2007, the Land Court assumed jurisdiction for proceedings already commenced before the LRT relating to proceedings brought, inter alia, under the Petroleum Act 1923. In that circumstance:
"(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."
[13]Incorporated as s 91 of the Land Court Act; originally s 27 of the Land Court and Other Legislation Amendment Act 2007.
Section 34 of the Land Court Act concerns costs and provides:
"(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.
…"
Section 50 of the Land and Resources Tribunal Act provides:
"(1)Each party to a proceeding before the tribunal must bear the party’s own costs for the proceeding.
(2)However, the tribunal may award costs in a proceeding if the tribunal considers, in the special circumstances of the proceeding, an award of costs is appropriate.
(3)If costs are awarded by the tribunal under subsection (2), the amount of the costs is to be the amount the tribunal considers reasonable." (emphasis added)
Examples of "special circumstances" as set out in the Act include:
(i) The proceeding was started merely to delay or obstruct.
(ii)The proceeding, or a part of the proceeding, has been frivolous or vexatious.
The learned Member, while expressing a preference for the view that s 34 of the Land Court Act was the appropriate law,[14] nonetheless appears to have determined the question of costs on the basis that s 50 of the Land and Resources Tribunal Act applied.[15] This appears from the following passage in his reasons:
"… 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." (emphasis added)
Other expressions were used when ordering costs in favour of QGC, in "the circumstances of this matter";[16] and when dealing with the costs of the Minister thought that "similar considerations apply".[17]
[14]Reasons for Judgment (RJ) para 10.
[15]Reasons for Judgment (RJ) para 11.
[16]Reasons for Judgment (RJ) para 12.
[17]Reasons for Judgment (RJ) para 13.
The learned Member's analysis is in the following paragraphs[18]
"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 per cent 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.
Similar considerations apply with respect to the question of an award of costs in favour of the Minister …. 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, 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 PL72 or PL73 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 per cent of the costs of the Minister … as assessed on the standard basis."
[18]RJ 12 and 13.
Section 91 of the Land Court Act states that any proceeding which was started in the LRT before the transfer of jurisdiction to the Land Court which had not been concluded becomes "a proceeding in the Land Court". The Land Court has all the powers of the LRT when it is finishing a proceeding which commenced in the LRT.[19] The President (of the Land Court) may give or make "any necessary directions about how the proceeding is to be dealt with by the Land Court instead of by the LRT." These include, inter alia, "any costs order" in respect of such a proceeding,[20] including an order that an indemnity certificate issue from the Appeal Costs Fund. Although directions hearings were held in these matters no orders about costs were made or directions as to which costs regime would apply.
[19]s 91(2)(b).
[20]s 94(4)(c).
When s 34(1) speaks of "costs for a proceeding in the court" it includes, as a matter of plain statutory construction, a transferred LRT unfinished proceeding, as it is "a proceeding in the Land Court". Section 34(1) also makes the general provision about costs "subject to the provisions of ... another Act to the contrary..." The Valuation of Land Act 1944 is an example where there is a contrary intention as expressed in s 70 of that Act about how costs may be disposed of and also s 27 of the Acquisition of Land Act 1967. The inquiry is whether the LRT Act provides "to the contrary" in s 50.
The scheme for costs in the LRT Act is that each party must pay its own costs, whereas the Land Court Act provides primarily that the Land Court has an unfettered discretion about costs which will be exercised in accordance with the jurisprudence and practice of the Court, reflecting, as it does, that many people appear unrepresented at first instance in the Land Court.
The LRT Act then makes reference to "special circumstances", with examples, which enlivens the jurisdiction to award whatever costs are reasonable in those circumstances. This regime seems sufficiently different from the position which prevails under the Land Court Act, namely that if no order is made each party bears that party's own costs, to be described as “contrary” and so enlivens the proviso in s 34(1).
There is, however, one further consideration. Section 50 of the LRT Act provides that each "party to a proceeding before the tribunal..." bears that party's own costs. The present matter is no longer a proceeding before the LRT. As a consequence of the amendments in 2007 the jurisdiction of the LRT to hear and determine certain matters under a number of Acts was transferred to the Land Court by amendment to those Acts and by the creation of a new division relating to cultural heritage and native title in the Land Court. The only jurisdiction of the LRT preserved and that only until the end of 2011, relates to alternative state provisions under the Native Title Act 1993 (Cth).
There is an argument that since there is no longer "a proceeding before the tribunal" there is no role for s 50. On the other hand, when proposing the merger of the LRT's jurisdiction into the Land Court, the legislature was concerned to protect the rights and interests of parties to existing matters in the LRT:[21]
"The Bill affects the rights of parties to existing matters in the Tribunal. Their disputes will cease to be dealt with by the Tribunal and will then be dealt with by the Land Court. In order to cure any procedural deficit, under new s 91 of the LCA, the Land Court will have a wide power to make directions about how the proceeding is to be dealt with by the Land Court instead of the Tribunal and provides for indemnity certificates to be granted in appropriate cases for the purposes of the Appeal Costs Fund Act 1973."
Although this explanation refers to procedural matters, s 20 of the Acts Interpretation Act 1954, whilst not directly applicable, suggests an approach which would support the retention of rights in the absence of express words to the contrary.
[21]Explanatory Memorandum P 1051.
A construction of the amendments which best gives effect to the beneficial intention of the transitional provisions is to be preferred. There are two or more parties to disputes, and s 50 of the LRT Act is clearly advantageous to a losing party while s 34 of the Land Court Act offers a costs regime more favourable to the successful party. It seems preferable to give effect to the regime in place when the proceedings commenced. For that reason, the argument that effectively denies any work to s 50, should be rejected and s 50 of the LRT Act applies with respect to the costs applications in these proceedings. To the extent that the learned member concluded otherwise, he erred. But, having done so, he concluded that there were special circumstances which caused him to make the costs order that he did and, so, effectively, gave practical expression to the correct test and in so doing did not make an error which requires a re-listing before the Member.
It is well settled that an appeal against the exercise of a discretion can only succeed if the exercise of the discretion was affected by error:
"It must appear that some error has been made in exercising the discretion. If the Judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate Court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary Judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate Court may infer that in some way there has been a failure properly to exercise the discretion which the law opposes in the Court of first instance. …"[22]
[22]House v The King (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ.
QGC's Costs
It is necessary to deal with QGC's costs first as the reasoning of the learned Member concerning those costs underlies the basis of his costs decision in favour of the Minister.
The "special circumstances" justifying the costs orders were said to be "unreasonable conduct" by Mr Sykes which, according to Mr Kimmins, the solicitor for QGC, accounted for in excess of 50 per cent of the second respondent’s costs. This assertion was accepted and applied by the learned Member.[23]
[23]RJ para 12.
The evidence of Mr Kimmins was:[24]
"I have carried out a high level assessment of QGC’s party and party costs of PGC 00114/2007. The process of reviewing my files in detail and preparing the draft submissions took in excess of 18 hours. As a result of my review I estimate that in excess of 50 per cent of QGC’s costs have arisen due to Mr Sykes’s unreasonable conduct as identified in QGC’s submissions on costs. Adopting a conservative approach QGC seeks an order that Mr Sykes pay 50 per cent of its costs of and incidental to PGC 00114-2007 to be assessed on the standard basis." (emphasis added)
[24]AR, Vol 6 PP 1132-1133.
The relevant parts of the submissions referred to by Mr Kimmins, while accepting that allowance had to be made for the fact that Mr Sykes genuinely believed that he had an arguable claim and was acting for himself, nonetheless contended that what should have been a "relatively short question of law" (the determination of the preliminary question) was extended by the unreasonable conduct of Mr Sykes which included:[25]
(i) Applying for summary judgment on the preliminary question.
(ii)Resisting having the tenure of PL72 and PL73 determined as a preliminary question.
(iii)Making, then abandoning, substantial allegations.
(iv)Raising new and/or hopeless issues.
(v)Undertaking unnecessarily long or irrelevant cross-examination.
A separate costs order concerning the summary judgment application was made by the learned Member.
[25]AR, Vol 6 PP 1163-1164.
Mr Sykes contends that the Land Court Act does not empower the Court to award costs on a percentage basis. A power to award costs will, in the absence of statutory prohibition, carry with it the power to control the quantum of those costs.[26] Further s 50(3) of the LRT Act permits “the tribunal” to award costs in an amount the tribunal considers reasonable. The approach may well be expressed as a percentage, something which is not unusual in the Supreme Court, particularly in the applications jurisdiction.
[26]Re: Cooke [1997] 1 Qd R 15 at 21.
As the recent Practice Direction in the Supreme Court demonstrates[27] parties are encouraged to agree on costs and, in appropriate cases, courts may fix costs to avoid undue delay and expense. Mr Sykes complained seeking, in effect, a line by line costs assessment, that 50 per cent was arbitrary. There was evidence which supported the application of a percentage of that order, and the learned member was in the best position to assess whether or not Mr Sykes’ behaviour was unreasonable and, if so, by how much that behaviour prolonged the determination of the preliminary question. It is, however, salutary to be mindful of an observation made by Sir Stephen Sedley:[28]
"Together, these litigants [self-represented litigants] undoubtedly take up the disproportionate amount of the court’s time and resources; disproportionate, that is, to the time taken by professionals. But is it disproportionate to their own needs or to the principle of justice for all?"
A perusal of the transcript reveals a degree of patience by the learned Member (and of counsel) in meeting Mr Sykes' contentions and objections which would not be extended to any represented person.
[27]PD No 3 of 2007 as amended of 17 December 2008.
[28]Writing in London Review of Books 6 September 2007 at 14.
It needs to be repeated that costs orders are made not to punish the unsuccessful party but to indemnify the successful party against the expense to which he or she has been put in conducting the legal proceedings.[29] When a "non-costs" regime generally applies, as here, an award of costs will be made when the conduct of one party goes beyond what is reasonable for disposing of the dispute so that the opposing party will not been exposed to unwarranted expense.
[29]Latoudis v Casey (1990) 170 CLR 534 per Mason CJ at 543 and per McHugh J at 567: Oshlack v Richmond River Council (1998) 193 CLR 72 per Brennan CJ at 75 and McHugh J at 97.
The Particular Grounds of Appeal
It is convenient to follow the arrangement of the grounds of appeal identified by QGC in its written submissions.
Ground 1: This ground concerns Mr Sykes' contention that he had no opportunity to file submissions in reply to QGC' submissions on costs. The directions made by the Land Court on 23 April 2008 provide that any party could file and serve submissions in response by 23 May 2008.
Ground 2: This ground concerns Mr Sykes’ complaint that he did not receive QGC’s submissions on costs until after the period for filing submissions in reply had expired. Mr Sykes abandoned this ground at the hearing.
Ground 3: Mr Sykes complains that his submissions to the learned Member were inadequately addressed in his reasons. A person exercising judicial functions has an obligation to explain why he or she came to the conclusion that is challenged.[30] What must be apparent are the steps in the analysis rather than every minor issue being discussed.[31]
[30]Public Service Board of New South Wales v Osmond (1986) 159 CLR 656; Sun Alliance v Massoud [1989] VR 8.
[31]Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSW LR 378 at 385.
The learned Member’s analysis and reasons are set out at paragraph 12 of his reasons for judgment. He accepts the evidence contained in Mr Kimmins’ affidavit without descending to any particularity. Some analysis is desirable for a fear that the losing party might think the other party’s contentions have not been scrutinised with sufficient care. A reference to the transcript and the history of the proceedings leading up to the hearing demonstrates that the learned Member was not in error in reaching the conclusion that he did but it would have been preferable to find more discussion in the formal reasons.
Ground 4: Mr Sykes complains that the learned Member ought to have disqualified himself from determining the costs question having failed to adhere to the instructions given to judges by King James the First. If by this Mr Sykes is contending that having given judgment on the substantive issue he ought not to have embarked upon the question of costs, that is a complaint without basis or sense.
Ground 5: By this ground Mr Sykes contended that it was unfair to award costs in QGC’s favour because of a number of matters such as not replying to correspondence, delaying the conduct of the proceedings, relying of false affidavits in seeking to have the Supreme Court proceedings dismissed and breeching an undertaking given to Muir J in the Supreme Court action 2137/07. It is only the last of those matters which needs to be addressed. The undertaking given by QGC in the Supreme Court was in the following terms:
“The Defendant will take no objection to the institution or pursuit of further proceedings brought by the plaintiff insofar as it concerns injunctive relief to restrain breaches of s 115 of the Production Act (or its successors) or other claims based on any such provision in respect of matters arising after it came into force, on the basis of the Court’s orders striking out proceedings No 10889/06.”[32]
As QGC emphasises this undertaking was not to take an issue estoppel or Anshun point based upon the striking out order. It has no relevance to the proceedings in the Land Court.
Ground 6: Both in writing and in oral submissions Mr Sykes was indignant that Mr Kimmins' affidavit had been the basis of the learned Member’s conclusion that more than 50 per cent of QGC's costs in the principle proceedings were due to Mr Sykes' unreasonable conduct. This appeared to stem from a sense that the learned Member had permitted Mr Kimmins to dictate the conclusion to which he, the learned Member, came about costs. Mr Kimmins' affidavit was evidence before the Court upon which the learned Member could act and, in the absence of any contrary evidence, or destructive analysis (Mr Sykes did succeed in having some items deleted), was entitled to accept it.
Ground 7: Mr Sykes complained that the learned Member had disregarded s 7(b) of the Land Court Act which requires the Court to act according to “equity good conscience and the substantial merits of the case without regard to legal technicalities in form...” This is a complaint which Mr Sykes made in the substantive proceedings as well as on the costs appeal. He did not, however, provide any analysis for the complaint other than to convey that to apply the terms of the legislation rather than to act “fairly”, as he would have it, the Court departed from that standard. That complaint was considered in the substantive appeal decision.
Ground 8: Mr Sykes complained that the learned Member fell into error by relying on his own decision in Bakharsh v Monize.[33] Whilst a judicial officer will always look for authority from other sources, if there is none, or the officer’s own previous decision is apt, that person’s un-appealed (or appealed unsuccessfully) decision may be the only one available. In this instance the learned Member referred to other LRT decisions.
Ground 10: Mr Sykes complains that the learned Member erred in finding special circumstances existed within the meaning of s 50 of the LRT Act. This is discussed under Ground 3.
Ground 11: Mr Sykes complains that the learned Member erred in assessing the costs on the Supreme Courts scale when he ought to have referred them to the assessing officer of the Supreme Court pursuant to s 34(5) of the Land Court Act. That provision enables the court “if it considers it appropriate” to order that the costs be decided by “the appropriate assessing officer of the Supreme Court”. The learned Member, after receiving submissions, engaged in the assessment exercise for himself, which he may do both under the Land Court Act and the LRT Act.
Ground 21: Mr Sykes contends that it was arithmetically impossible for Mr Kimmins to have contended that in excess of 50 per cent of QGC’s costs arose because of his unreasonable conduct. This, in part, appears to be because some of the costs arose pre-trial. However, QGC contended that examples of Mr Sykes’ unreasonable conduct extended to matters such as the summary judgment application (in respect of which a separate costs order was made) and his conduct about the application for the determination of a preliminary point, and the protracted constitutional argument which required s 78B of the Judiciary Act 1903 (Cth) notices to be given, in respect of an argument doomed at the outset. Mr Sykes contends that the learned Member did not preside over all the pre-trial hearings and, in any event, they were not inefficient. It was, however, possible for the learned Member to be aware of the directions hearings and to receive evidence about them by affidavit.
Ground 22: This ground appears to relate to some allegation of “entrapment” whereby Mr Sykes’ consent to the preliminary question was not obtained bona fide. Mr Sykes said in oral submissions that he consented because he knew he would lose but that he could appeal.
[32]Supplementary Appeal Book Vol 7 at 301.
[33][2003] QLRT 133.
The grounds not covered above have either been considered in other places in these reasons or do not require further analysis.
The Costs of the Minister
The learned Member concluded[34] that similar considerations applied to the Minister’s application as to QGC’s application. He ordered Mr Sykes to pay 40 per cent of the Minister’s costs to bring into account his correspondence of 30 March 2007. According to the learned Member, Mr Sykes was, in commencing his proceedings in the LRT, “following the course proposed to Mr Sykes by the Minister.” That letter pointed out that Mr Sykes was entitled to appeal the Minister’s decision to cancel PL72 and PL73. But Mr Sykes was not advised to take that course. The learned Member erred in “reducing” the 50 per cent costs allowance by 10 per cent for this reason.
[34]RJ [13].
However, there was conduct by the Minister (or his departmental officers) which was of concern. In his reasons dealing with the preliminary question the learned Member made a number of serious and adverse findings about the Department’s handling of Mr Sykes’ claims concerning the Petroleum Leases. These included unclear, if not misleading, correspondence from the Department to Mr Sykes;[35] unexplained and “totally unacceptable” delay in dealing with Mr Sykes’ applications to renew the Petroleum Leases;[36] and reluctance on the part of an employee of the Department, who gave evidence at the hearing of the preliminary question, to be fully frank about the reasons for the delay.[37] The learned Member was so concerned about the conduct of the Department in respect of Mr Sykes’ lease applications that it warranted referral of his decision to the Attorney-General for investigation.[38] Despite the Minister’s position in the proceedings that the Petroleum Leases no longer existed after 27 April 2000, he continued to accept rent for those leases for some six years.
[35][2008] QLC 0069 at [14].
[36]Ibid [25], [27] and [88].
[37]Ibid [31].
[38]Ibid [89].
While it is not strictly correct to say that it was the conduct of the Minister which led Mr Sykes to commence or prosecute otherwise avoidable litigation, nonetheless, an environment was created in which Mr Sykes felt, not surprisingly, compelled to explore matters which, while concerned with the handling of his Petroleum Lease applications, were not directly relevant to the determination of the preliminary question. The Minister’s failure to deal with Mr Sykes’ applications in a timely way led to avoidable delay in the determination of Mr Sykes’ claims on the Petroleum Leases and, very likely, caused Mr Sykes to suspect ulterior motives in some of the opposing actors. The learned Member, while identifying these matters and being highly critical of them, failed to have sufficient regard to them on the costs application. An appropriate order would be no order as to costs. This conclusion commends itself on both legislative approaches – s 50 or s 34 – but particularly s 50.
The Fresh Evidence
At the commencement of the hearing of these appeals Mr McKenna objected to the admission into evidence in the appeals the following documents.
(i) Affidavit of Mr M Kimmins sworn 29 October 2008.[39]
(ii) Affidavit of Mr Sykes sworn 9 August 2008.[40]
(iii) Affidavit of Mr Sykes sworn 6 November 2008.
No application had been made to have the documents admitted as new evidence in the appeal pursuant to s 56 of the Land Court Act 2000.
[39]AR Vol 7, p 281.
[40]AR Vol 7, p 261.
The Court refused the admission of the first two documents on 11 November 2008 but reserved its decision about the third document. After considering the contents of Mr Sykes’ affidavit sworn 6 November 2008 in the context of the issues raised in these appeals, it should not be admitted into evidence as Mr Sykes did not demonstrate how its admission was necessary to avoid a grave injustice.
Costs of the Appeal
In the written submissions made on behalf of the Minister even if Mr Sykes’ appeals were dismissed, no costs of the appeal were sought.
QGC seeks its costs of the appeal. There is no reason why Mr Sykes should not be ordered to pay those costs.
Orders
(1) The appeal against the order of the Land Court that the appellant pay 50 per cent of the second respondent's costs of the hearing of the preliminary question is dismissed.
(2) The appeal against the order of the Land Court that the appellant pay the second respondent's costs in the amount of $82,463.00 is dismissed.
(3) The appeal against the order of the Land Court that the appellant pay 40 per cent of the first respondent's costs of the hearing of the preliminary question is allowed.
(4) Instead order that there be no order as to the costs of the first respondent.
(5) The appellant is to pay the second respondent's costs of and incidental to the appeal on the standard basis.
WHITE J
RP SCOTT
MEMBER OF THE LAND COURT
RS JONES
MEMBER OF THE LAND COURT
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