Elliot v Chief Executive, Department of Natural Resources and Mines [2002] QLC 88

LAND COURT OF QUEENSLAND CITATION: Elliot v Department of Natural Resources and Mines [2002] QLC 88 PARTIES: Stephen E Elliot (applicant) v Chief Executive, Department of Natural Resources and Mines (respondent) FILE NO: AV2002/0148 DIVISION: Land Court of Queensland PROCEEDING: Directions Hearing DELIVERED ON: 12 November 2002 DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER: Mr B O’Connor, Judicial Registrar ORDER: 1. Cases should be set down for preliminary conference at a time and place, preferably in early 2003, acceptable to both parties. Parties should advise the Court of their preferences. 2. The Department should advise the court within 28 days of this Order if the nominated cases by Mr Boyd are acceptable as test cases; if not, alternative suggestions should be provided to the Court. Those cases are: ARAMAC “Mildura” ILFRACOMBE “Arvo” -- 1 of 5 -- BARCALDINE “Audreystone” (downs) “Knockninny” (desert) BLACKALL “Maree Downs” WINTON DrumLion 3. The appellants should attend the conferences either personally or with representation other than Mr Boyd. 4. The Department should only have legal representation at the preliminary conferences if any of the appellants intend to be similarly represented. 5. The conduct of the preliminary conferences on these conditions will only take place with the agreement of the respondent and the respective appellants. 6. Liberty to apply. CATCHWORDS: Preliminary conference – by agreement APPEARANCES: No appearance for appellants. Mr K Fisher for the respondent. ORDERS [1] The above matters were before the Court for directions on 18 October 2002. Mr K Fisher counsel of Crown Law Office appeared for the Department of Natural Resources and Mines, and presented detailed written submissions including a list of possible orders. This material was forwarded prior to hearing to Mr Alister Boyd, agent for the appellants. Mr Boyd tendered written material to the hearing, but chose not to attend in person. (2) No response has been received by the Court from Mr Boyd to Mr Fisher’s submissions. Background: [3] Mr Fisher canvassed the background to these and related cases (including recent court hearings) in considerable detail at the directions hearing. -- 2 of 5 -- Given the interim nature of the order I propose to make here, it is unnecessary to refer to this background in detail at this stage. [4] The most relevant issue in Mr Fisher’s submission is that extensive objection hearings, held between departmental representatives and Mr Boyd, were unable to resolve these disputes. Mr Fisher now requests that the cases proceed direct to full hearing (perhaps with some cases selected as test ones for the initial hearing). Alternatively, he states that the Department is prepared to agree to preliminary conferences (again with possible test cases) but in the absence of Mr Boyd. [5] Mr Boyd’s preference, in his written submission, is for preliminary conference. It is not clear whether he would wish to attend to such or have parties present written submissions by him, supplemented by the parties’ own evidence. [6] While the court does have power to direct parties to attend preliminary conferences where consent is not forthcoming from both sides (s.36 of the Land Court Act) such power would only be used in exceptional circumstances for sound reasons. The current circumstances as now presented do not fall within this category. [7] A corollary to this Court practice is that, if one party only agrees to attend on certain conditions, the conference should only be held (provided the other party agrees) on those conditions. [8] It follows that orders could be made to hold preliminary conferences where the parties represent themselves or with representation other than Mr Boyd. Mr Boyd’s statements can be tendered at the conference on a “without prejudice” basis. The preliminary conference will, of course, only be held on these terms with the agreement of the relevant appellant(s). If this is not forthcoming, the cases should proceed straight to full hearing. [9] So as not to provide any unfair advantage to the Department, it should not be legally represented at the preliminary conference unless the appellants are legally represented. [10] Test cases are preferable even at the preliminary conference level unless the appellants’ case turns principally on sales analysis. Mr Boyd has nominated possible test cases. The Department should advise the court -- 3 of 5 -- within 28 days of this hearing if such cases are acceptable to them or what other form of selection should take place. [11] There are also outstanding appeals in shires of Belyando, Duringa, Murweh, Paroo and Tambo. In some of these matters, the appellants have rejected the offer of a preliminary conference and elected to proceed direct to Court hearing. The Paroo appellants anticipate the recent Land Court decision in that Shire will expedite any hearing. As to the Murweh and Tambo appeals, a considerable number of matters not represented by Mr Boyd are the subject of preliminary conference on 19 or 20 November at Charleville. The outcome of these conferences could impact on the remaining cases from those two shires. [12] Other matters canvassed by Mr Fisher such as the conduct of the hearing and provision of further and better particulars of appeal grounds can be considered at a further stage in proceedings should the matter go past preliminary conference. [13] For preliminary conferences purposes, it is not necessary to require the appellants to provide further and better particulars of the grounds of appeal. Orders 1. Cases should be set down for preliminary conference at a time and place, preferably in early 2003, acceptable to both parties. Parties should advise the court of their preferences 2. The Department should advise the Court within 28 days of this Order if the nominated cases by Mr Boyd are acceptable to them as test cases; if not alternative suggestions should be provided to the Court. Those cases are: ARAMAC “Mildura” ILFRACOMBE “Arvo” BARCALDINE “Audreystone” (downs) “Knockninny” (desert) BLACKALL “Maree Downs” WINTON DrumLion 3. The appellants should attend the conferences either personally or with representation other than Mr Boyd. -- 4 of 5 -- 4. The Department should only have legal representation at the preliminary conferences if any of the appellants intend to be similarly represented. 5. The conduct of the preliminary conferences on these conditions will only take place with the agreement of the respondent and the respective appellants. 6. Liberty to apply. BR O’CONNOR JUDICIAL REGISTRAR -- 5 of 5 --