Elliot v Hicks; Weir and Rasmussen v Barrett; Deeley v Hicks; Richardson v Barrett [2001] QLRT 71

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: In Re Maurice James Elliot and Cameron Jeffrey Hicks, Russell Brendon Hicks – and - In Re Kelvin John Weir, Glenn Raymond Rasmussen and Rodney Keith Barrett – and - In Re Ronald Leslie Deeley and Russell Brendon Hicks, Cameron Jeffrey Hicks – and - In Re Raymond Edward Richardson and Rodney Keith Barrett [2001] QLRT 71 PARTIES: Maurice James Elliot Applicant - and - Cameron Jeffrey Hicks and Russell Brendon Hicks Respondents - and - Kelvin John Weir and Glenn Raymond Rasmussen Applicants - and - Rodney Keith Barrett Respondent - and - Ronald Leslie Deeley Applicant - and - Russsell Brendon Hicks and Cameron Jeffrey Hicks Respondents - and - Raymond Edward Richardson Applicant - and - Rodney Keith Barrett Respondent FILE NOS: LXX40066/2000 LXX40051/2000 LXX40004/2000 LXX40005/2000 PROCEEDING: Interlocutory Issue – practice and procedure DELIVERED ON: 10 October 2001 DELIVERED AT: Brisbane HEARING DATE: 19 September 2001 -- 1 of 11 -- PRESIDING MEMBER: Smith DP ORDER: 1. Each party to each matter is to file in the Tribunal and serve on the other parties submissions, together with affidavit material if appropriate, relating to the use, if any, that the Tribunal should make of a newspaper article appearing in the Rural Weekly Central Queensland Edition of 7 September 2001 at page 11 titled “Stocking rates proven”, in light of the evidence given at the hearing of these matters, by 4pm, Monday, 22 October 2001. (at [26]) 2. Any submissions or material in reply is to be filed and served by 4pm, Thursday, 25 October 2001. (at [26]) 3. I reserve the question of costs with respect to this aspect of each of these matters. (at [26]) CATCHWORDS: CONTACT WITH TRIBUNAL AFTER HEARINGS – PUBLIC INFORMATION – CLEAR INTENTION TO DISCREDIT EVIDENCE – NATURAL JUSTICE  APOLOGY Wall v Windridge [1999] QdR 329, considered In Re Ronald Leslie Deeley & Ors [2001] QLRT 39, considered COUNSEL: Mr A.C. Barlow for each of the Applicants SOLICITORS: N/A AGENT: Mr G.T. Houen for each of the Respondents SMITH DP: Background [1] Each of the above applications are currently before me. The common ground in each matter is that they each relate to determinations of compensation for mining leases in the Emerald District. [2] In each matter, hearings have been conducted and, at their request, the representatives for each party were granted a lengthy period of time to file comprehensive written submissions. It is fair to say that the parties are treating -- 2 of 11 -- these cases as benchmarks regarding the question of compensation for mining matters in the Emerald District. [3] As at 10 September 2001, each matter was reserved. On that date, a facsimile was forwarded direct to my Chambers regarding the evidence currently before me in each matter. The Facsimile of 10 September 2001 [4] A facsimile bearing the date and time of 10-09-2001 18:37, one page in length, was received at my Chambers. Following is an image of the facsimile. -- 3 of 11 -- [5] As chance would have it, the facsimile arrived at a time when a new staff member had just commenced duties in the Presiding Members Chambers area of the Tribunal. As the new staff member was not aware of the protocols that apply in -- 4 of 11 -- contacting Presiding Members, the facsimile was brought directly into my Chambers. [6] A number of observations should be made about the facsimile:  on its face, it originated from facsimile 079+85 4384;  it refers directly to the landholders in these matters, Hicks and Barrett;  it is directed to Tony Barlow, Counsel for each of the Applicants;  it is directed by “cc” to “Mr Paul Smith LRT”;  it is not signed;  it makes a point regarding the sworn testimony of the landholders and a report in the Rural Weekly Central Queensland Edition of 7 September 2001, page 11. [7] I became aware of the facsimile of 10 September 2001 on arrival at my Chambers in the morning of 11 September 2001. Due to the way the facsimile is set out, I had read most of the newspaper article before realising that the facsimile was a communication by someone unknown, but clearly linked to one or more of the parties, and related directly to the evidence before me. [8] I immediately contacted my case officer who organised the appearance of Mr Barlow and Mr Houen before me on 19 September 2001. The Proceedings on 19 September 2001 [9] Shortly after the commencement of the matter on 19 September 2001, Mr Barlow informed the Tribunal that the facsimile of 10 September 2001 had been sent by his client Maurice James Elliot. [10] Mr Barlow then read into the transcript the text of a letter dated 11 September 2001 forwarded by Mr Elliot to Mr Barlow as follows: “Dear Tony, Please find attached the original of the Rural Weekly newspaper from which I took the copy which I faxed to you yesterday. I confirm that I sent a copy of this to the LRT but I inadvertently sent it apparently to the Chamber’s fax and not to the general fax. I simply grabbed the top letter in the file and took the fax number off it. I unreservedly apologise if I have transgressed some principle of procedure and can unequivocally state that there is no intention on my part to try to subvert the course of justice or otherwise exert undue influence. I merely read the newspaper article and thought that both you and the LRT would be interested in such an article which was about a matter which was much discussed during the compensation hearings. I also apologise for not having contacted you before sending the newspaper article but I thought that it was a public document which would be of interest. We are all still finding it difficult to understand the ‘niceties’ of the legal system which has been thrust upon us for the resolution of our mining leases and we miners have no comprehension that such a simple action can be considered to have such serious legal implications. To me, it was merely a case of reading the article and thinking, ‘That’s interesting. I’ll bet the people in Brisbane never get to -- 5 of 11 -- see this and they’ll probably be interested also.’ Again my unreserved apologies to you and the Tribunal for apparently breaking some code of conduct of which I was not aware. I can assure you that that I did not discuss the sending of this article with any other person. Not even Jenny was aware that I sent it and I had forgotten about my actions to do this as to me it had no significance except to pass on something which I thought would be interesting to the parties involved. I do not know whether I can contact the LRT to offer my apologies to them as this may compound a system I do not understand. I ask you to please convey my sincere apologies to them and to assure them that I had no other motive than to pass on an article which I thought they would be interested. Yours very contritely,”1 [11] Mr Elliot was sworn and gave evidence on 19 September 2001. His evidence is critical in determining this matter. Relevant extracts of his evidence are as follows: “Mr Elliot, your note at the bottom of that on the right-hand side which says, ‘This is half the stocking rate claimed by Rod Barrett and Cameron Hicks.’ Could you inform the Tribunal, please, as to the purpose of that? - - That was just an observation I made to myself. It was not made as any submission or as any attempt to introduce new evidence or to do anything whatsoever. It was purely just a matter of interest.” ….. “I was reading the paper. I just thought, ‘They’ll be interested in that’ and I sent it to you and then as an afterthought, I thought, ‘Oh, the LRT will be interested. I’ll sent it to the LRT also’.” ….. “Mr Elliot, you were, however, aware that Deputy President Smith was adjudicating or judging a number of matters in which Mr Barrett and Mr Hicks were, in fact, respondents? - - Yes, I was aware of that and in – fact, I was involved in those – some of those hearings. But I did not in any way intend that this have anything to do in connection with trying to provide additional information or additional evidence, whatever you want to call it, in relation to those hearings. It’s purely that if something is discussed here that is relevant to discussions that have gone on, and I thought it was interesting I sent it.” ….. “I was purely providing a piece of information that was out of the local paper and I did not submit it. I did not send it to the Court or make a formal submission or in any way note that I intended it to be used as evidence.” “Well, that touches upon another point, Mr Elliot. In fact, you didn’t sign the facsimile that was received by myself and the Land and Resource Tribunal. Are you able to say anything about your lack of signature there? - - Purely it was just another – all part of the me just sitting there reading a newspaper and thinking, ‘Oh, they will be interested. This is information that’s in the public arena. It’s in the local public newspaper.’ But as I’d said, if you’d been here locally you would have got it. I had no thoughts in my mind about anything except providing a bit of information that I thought you’d all be interested in.” ….. “I can only apologise for my lack of knowledge and understanding of the legal procedures. I might be a good miner and I might be a good cattleman but I know absolutely nothing about Court and legal procedures. I have been guilty of sending faxes to various people in government departments, to friends and relatives if ever something comes up that I think is something they’re interested in. I just send the fax. Now, I had no – no intention of doing anything to change the ideas or thoughts of the Court. It was purely, as I said, a matter of interest and I apologise for transgressing some law that I’m totally unaware of.” “If you found appropriate, Mr Elliot, and wished to offer an apology, you are now under oath and that apology would bear some weight if you were minded to give it? - - I believe I have just given an apology and I unreservedly apologise for doing something that appears to transgress some law and I hope the Court accepts it as an open and uncharted law. I have no reservations policy whatsoever. I just was not aware that this would be seen as anything else but somebody at the other end picking it up as I did and saying, ‘Oh, that’s interesting.” 1 In transcript 19 September 2001, p4, lines 13-54. -- 6 of 11 -- “Mr Elliot, what do you propose that the Tribunal do with that facsimile it received? - - I did not believe it was actually go to the Tribunal itself. It was not intended as such. Therefore, I had no thoughts then or now that that document would have been in the precincts of the Tribunal for consideration in this case. I am sorry if I inadvertently got the wrong fax number and therefore put it into some hall of power that I wasn’t intending it to go to. I believe that it will not be taken into account in any way whatsoever. It’s purely a matter of interest that’s in the manner in which I sent it.” …. “If you sent it as a matter of interest for the tribunal as a whole why did you address it specifically to – excuse me – to Deputy President Smith? - - Because Deputy President Smith is the section that has been dealing with the land dealings in this part of the world. I don’t know how the tribunal works down there but, as I understand, there are several sections of it and it is Deputy President Smith’s section that has been dealing with us in this part of the world and I had thought that that section would be interested in such an article.” ….. “Yes, sir. If I can explain that again. I believe the sequence was I was reading the paper and I took a fax and I sent it to Tony Barlow and I believe I was actually sitting down again and reading something else in the paper and my mind must have been going over it and I just thought, oh, the LRT would be interested in that. Now in my mind, because it was a public document, and I did not consider any of this at the time because there was no thought in it. The whole thing probably took 60 seconds to take a fax copy, put it on the fax and send it off, sit down, think, oh, I better send one to the LRT also. That was a public document. It was not something that I had dreamed up or done calculations on or were making a submission on, it was an actual publicly available document in the local newspaper. When I was trying, after Mr Barlow walked up and down me, I was trying to reconstruct it in my mind as to really what I had done wrong and I found it difficult to justify to myself that I had committed a wrongdoing because if you had been a resident locally you would have read all that information in the paper. Mr Barlow has explained to me that there is a procedure. I accept that procedure and I apologise for having transgressed it.” ….. “So with all that in mind, Mr Elliot, can you again take a moment to think about what I have said about the note, in putting a spin if you like, to put it – or putting your own comment on the newspaper article. Separate out of you mind the existence of a newspaper article and focus on what message you were meaning to convey by the note? - - The note was in no way intended for yourself or the Court system. The note was written there in the first instance when I faxed that to Mr Barlow and I did not intend – intentionally send that not to you. I just did not think about it when I came back again and sent the fax a second time to yourself. I just wish I could go back and rip up that fax and not have sent it to you and just sent the one to Tony Barlow as I had intended to initially. But I just had a second thought and thought the LRT would be interested in it. But certainly the note was in no way intended for yourself or the Court or to bring about any review or rethought of the evidence that had been submitted. If it is at all possible I would withdraw that and apologise for any inconvenience I have caused.” ….. “Well, do you wish to offer a reason to the Tribunal as to why you don’t wish to put any documentation before the Tribunal that would support your evidence today? - - I have no reason to put it or not to put it, just I am still trying to reconstruct in my mind the happenings of that night and when it all happened, and I have – I have gone back to where I was sitting in the chair where I read the paper to walk down to do a fax copy, which I would have done, to come in here by the fax machine and even to look up the fax numbers and I have opened the – the file book which I have on LRT and there sitting on the top of it is a letter which has the direct entry into the fax that I inadvertently used to there. I then went looking for your fax number, which I would have done at that night for Mr Barlow’s fax number, and I found it difficult to find that fax number because it was hidden back in the middle of my book where I record phone messages day after day after day. I am now uncertain in my own mind. In my statement before I stated what I believed to be the truth. I am now, in hindsight, sitting here uncertain of the actual sequence of events because I can pull the – the number for the LRT straight off the top of an LRT file, but Mr Barlow’s fax number takes me some time to get it. It makes me doubtful of my actual sequence of operations on that night, but there is no doubt in my mind and there’s no change at all whatsoever in my thought that my primary intention was to send it to – to Mr Barlow, and it was a secondary thought to send it to the LRT.” -- 7 of 11 -- “Just so I’m clear on that, are you in fact saying that while you were looking for my number you sent the fax to the LRT? - - I don’t – I can’t say which – I am unable at this time to say what the sequence is because I can’t tell from my fax, and I didn’t even keep a copy of it. I did not consider my action serious enough that I even kept a copy of the information I sent down to you. It was purely done, as I said, as a matter of interest at the time. But what I am now saying is that in my own mind I find it difficult to state accurately the sequence in which I did these events because when I come here it took me, and I was still looking when the phone rang then. I’m still thumbing through the pages trying to find your fax number which is an amount of time it would have taken me at the same time had I been doing it last week, so I cannot swear as to the accuracy of the events. What I said before I believe to be the truth, and I believe, and I state categorically that my primary intention was to send it to you. It was a secondary thought in my mind to send it to the LRT and there was absolutely no question of trying to submit additional evidence or late evidence or whatever the way the Court interprets it.” 2….. Submissions [12] In Mr Barlow’s submission, Mr Elliot is a credible witness and his actions in sending the facsimile to the Tribunal merely amounted to information sharing. Mr Barlow submits that Mr Elliot viewed the newspaper article as public information, and that handwritten references to the landholders were only meant for himself (Barlow) and not myself. [13] Mr Barlow’s submissions continue as follows: “It’s my submission that Mr Elliot was having a bit of a jab at Mr Barrett and Mr Hicks and that that jab, as evidenced by the note on the right-hand side of the fax, was primarily intended, in fact, solely intended for me, that at the end of the time - sorry that when the fax was sent Mr Elliot simply didn’t pay any attention to the fact that there was a note on it, he really was providing information as a gesture amongst people who would be interested to provide them with the information which he didn’t intend to enter into the adjudication process.” ….. “Deputy President, Mr Elliot – it’s really not even possible to say he made a mistake. He simply didn’t think. He alighted upon a piece of information. He is an enthusiastic information gatherer. He provided that to me. It is a public document. He provided it to me on the basis that I wouldn’t get to see the Emerald paper. He, in a moment of light heartedness or possibly in a moment of lack of thought, he inadvertently thought that the tribunal would be interested in this public document as well simply out of interest.”….. “It is my submission that Mr Elliot has, in fact, made a very silly mistake and nothing more. It should be a comfortable finding for this tribunal to acknowledge that and dismiss from its mind in any ways whatsoever the evidence that might have been gained from that paper and acknowledge that Mr Elliot is an honest witness and really didn’t intend to interfere with the judicial process whatsoever. Those are my submissions, Deputy President.” … 3 [14] Mr Houen submitted that the evidence supported a clear intention on the part of Mr Elliot to discredit the evidence of his clients. He points out that the facsimile was sent directly to myself and not to the Tribunal at large, and reasons that it is difficult to conclude on the evidence that Mr Elliot’s note on the facsimile was not intended to influence those to whom it was sent. 2 Extracts, Transcript 19 September 2001, pp13-27 3 Transcript 19 September 2001, p29, lines 25-56 -- 8 of 11 -- [15] Mr Houen further submits that, whilst his clients do not wish to make an example of Mr Elliot or take the matter any further than is necessary, his clients have placed the utmost importance on the integrity of the Tribunal’s processes. Findings [16] With qualifications, I am inclined to agree with the submissions made by Mr Houen. [17] It is beyond doubt that Mr Elliot was responsible for the facsimile of 10 September 2001 being forwarded to the Tribunal. It is also beyond doubt that the facsimile conveyed, and importantly was meant by Mr Elliot to convey, more than a simple copy of a newspaper article which is part of the public record, but also Mr Elliot’s comments on that article in light of the evidence given by the landholders in these matters. [18] I also find that, although the handwritten comments on the facsimile were principally intended for Mr Barlow, they were also intended for me. [19] However, I find that Mr Elliot’s actions in sending the facsimile were done in the spur of the moment and not pre-meditated. As Mr Barlow has aptly put it “it’s really not even possible to say he made a mistake. He simply did not think.”4 The Consequences [20] It is of paramount importance that parties appearing before the Tribunal do so with the confidence that all proceedings are transparent and fair. [21] The Court of Appeal decision in Wall v Windridge & Ors5 is relevant. In that matter, the Mining Warden was found to have acted on material provided by one party to the Warden after the hearing had concluded and without providing the other party an opportunity to deal with such material. The Court of Appeal found the Mining Warden’s actions in receiving and acting on the material to be in breach of the rules of natural justice. [22] This is the second occasion where an attempt has been made to have material placed before me outside of the proper processes and without the knowledge of at 4 Transcript 19 September 2001, p29, ones 38-9 5 [1999] 1 QdR 329 -- 9 of 11 -- least one of the parties.6 In light of the decision of the Court of Appeal in Wall v Windridge, it is to be hoped that this is purely co-incidental and not a reflection of practices which in the past may have been accepted as the norm. At any rate, as I said in Deeley7, this Tribunal cannot and will not tolerate attempts by anyone to derogate from the principles of natural justice which operate in favour of all parties appearing before the Tribunal. [23] That said, however, I do not believe the interests of justice would be served by taking the issue further with Mr Elliot. Mr Houen’s clients do not wish to make an example of Mr Elliot. I think that their approach is appropriate. Mr Elliot’s apology to the Tribunal is sufficient. Future Conduct of Matters [24] There remains one issue to be dealt with. As regards the facsimile of 10 September, for the purposes of my decisions in these matters I intend to wholly disregard all handwriting on the facsimile. That has the effect of my being aware of a newspaper article from the Rural Weekly Central Queensland Edition of 7 September 2001 at page 11. That article clearly touches on evidence currently before me in these matters. [25] Before making any decision as to what use, if any, I should make of the said newspaper article, I think it appropriate that I receive submission from the parties in that regard. Unless there are strong reasons shown in those submissions to the contrary, I do not propose to relist these matters for further hearing. Such a course would only add to the expense to which each party has already been placed in these matters. Therefore, if any party wishes to provide any evidence with respect to the newspaper article, such evidence should be in affidavit form and accompany their submissions. [26] I make the following orders: 1. Each party to each matter is to file in the Tribunal and serve on the other parties submissions, together with affidavit material if appropriate, relating to the use, if 6 see In Re Ronald Leslie Deeley & Ors [2001] QLRT 39 7 [2001] QLRT 39 @ paragraph 8 -- 10 of 11 -- any, that the Tribunal should make of a newspaper article appearing in the Rural Weekly Central Queensland Edition of 7 September 2001 at page 11 titled “Stocking rates proven”, in light of the evidence given at the hearing of these matters, by 4pm, Monday, 22 October 2001. 2. Any submissions or material in reply is to be filed and served by 4pm, Thursday, 25 October 2001. 3. I reserve the question of costs with respect to this aspect of each of these matters. -- 11 of 11 --