Bjelivuk & Ors v Gemstone Exploration Pty Ltd [2001] QLRT 49

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re Milos Bjelivuk, Sedina Bjelivuk and Ivan Uzarevic and Gemstone Exploration Pty Ltd [2001] QLRT 49 PARTIES: Milos Bjelivuk, Sedina Bjelivuk and Ivan Uzarevic Applicants - and - Gemstone Exploration Pty Ltd Respondent FILE NO: OTX70001/2001 PROCEEDING: Application by Respondent for adjournment of hearing DELIVERED ON: 12 July 2001 DELIVERED AT: Brisbane HEARING DATE: 12 July 2001 PRESIDING MEMBER: Smith DP ORDERS: 1. That the hearing of this application be adjourned to 10 am on 30 July 2001 in Brisbane for two days subject to the Respondent paying the Applicants' costs thrown away in consequence of the adjournment fixed in the sum of $8,000. Such cost to be paid by the Respondent to the Applicants by 12 noon Thursday 19 July 2001. Should the said costs not be paid by the Respondent by the time specified, the hearing date of 30 July 2001 be vacated and the hearing resume on 20 July 2001 at 10 am in Brisbane. (at [18]) 2. Order 1 of 11 July 2001 be vacated and in its place I order that the opal described by the Applicants in paragraph 70 of the affidavit of Milos Bjelivuk sworn on 2 May 2001 and filed herein be delivered up by the Respondent to the Clerk of the Court Coober Pedy by 1.30 pm South Australian time, Friday 13 July 2001 and that the -- 1 of 6 -- Clerk of the Court Coober Pedy maintain the said opal in a secure location until further order or direction of the Tribunal. 3. Pending the finalisation of the application, the Applicants be permitted to return to and work ML95104 subject to them keeping an accurate record of all opal and boulder found on the said lease and work undertaken on the said lease. 4. So far as is appropriate the Applicants be released from their undertaking of 3 May 2001. CATCHWORDS: ADJOURNMENT – FINANCIAL POSITION OF COMPANY – OBLIGATIONS OF DIRECTOR – PRESERVATION OF PROPERTY – COSTS THROWN AWAY COUNSEL: Mr Jarrett for the Applicants instructed by PW Skewes & Dempster, Solicitors SOLICITORS: Mr Dazborough for the Respondent [1] SMITH DP: (Ex Tempore) I think it appropriate in the circumstances of this matter that I give some short reasons for my decision. [2] This is an application by the Respondent for an adjournment of the hearing of this matter. [3] Today is the sixth day of hearing of an application for injunction relief brought by the Applicants. The subject matter of that application has been sufficiently dealt with in previous interlocutory judgments. [4] There have been numerous delays throughout the conduct of these proceedings. Those delays, in the main, have been through no fault of the Applicants. In some circumstances, those delays also have not been the fault of the Respondent, particularly relating to delays arising from the sudden illness of an interpreter at a crucial stage of cross-examination in this matter. [5] On resumption of the hearing earlier today, the solicitor representing the Respondent, Mr Keenan, advised me that he no longer held instructions to act -- 2 of 6 -- on behalf of the Respondent. I subsequently excused Mr Keenan and his firm from further attendance. The Respondent has subsequently sought orders for an adjournment of this matter. The application for an adjournment needs to be read in context with an application in a proceeding made by the Applicants yesterday evening and dispensed with by myself last night relating to the preservation of certain property in this matter. [6] The affidavit evidence tendered with respect to that application in a proceeding raised serious grounds for concern by the Applicants as to the bona fides of a principal witness for the Respondent. [7] The Respondent in making an application for adjournment in this matter relies principally on two grounds. [8] Firstly, the Respondent, represented by Mr Dazborough, who is a director of the Respondent, advised that Mr Dazborough is not aware of the current financial position of the Respondent. From the nature of his submissions I gather that his concerns arise out of the submissions made and material put in evidence by the Applicants yesterday evening with respect to the application relating to preservation of property. [9] The reason why Mr Dazborough claims disadvantage in that regard is that as a director of the Respondent he has statutory obligations and he is concerned about incurring costs and proceeding in a matter and engaging a solicitor if the Respondent is not in a position to pay those costs. It may be that the company is in a position, it may be that it is not, and he says he has no way of knowing until he returns to Coober Pedy to check the financial affairs of the corporation. [10] The second ground that he relies upon is that he does not have legal training and the conduct of these proceedings is, in his words, beyond him. The second submission causes me some trouble. It was the Respondent who terminated the services of Mr Keenan earlier today and brought about the situation that the Respondent now finds itself in. I understand from submissions that that was -- 3 of 6 -- done in part on a belief by Mr Dazborough that he would be able to reach a settlement agreement with the Applicants earlier today. However that has not proved possible, meaning the Applicants are, of course, entitled to have their hearing proceed. [11] There is another element to this matter which relates to the preservation of property relevant to the orders that I made yesterday evening. The Applicants have now sought that the opal described in Order 1 of 11 July 2001 be handed over forthwith to the Clerk of the Court, Coober Pedy. [12] Mr Dazborough, on behalf of the Respondent, has said that he is fully prepared to comply with the Order 1 of 11 July 2001 and further that he is happy to hand such opal over to the Clerk of the Court when he returns to Coober Pedy at noon tomorrow. [13] On this aspect, whilst I understand the concerns that the Applicants have for the safe custody and retention of the opal, I note that the position regarding those opals has not changed substantively since the orders were made last night. At that time the Applicants were satisfied with an order that required the Respondent to deliver up those opals to the Registrar of the Tribunal in Brisbane at 10 a.m. on Monday next. [14] What the Respondent, through Mr Dazborough, is now proposing is, in effect, a bringing forward of those orders by almost three days. I am, of course, concerned for the safe custody of those opals set out in my order but I find difficulty in making an order for the Respondent to deliver up those opals forthwith in circumstances where identification of at least one bundle of those opals is difficult over a long distance. [15] The only solution in that regard that has been offered is that the entire contents of the safe of the Respondent be taken by the Clerk of the Court at Coober Pedy. I do not think that is appropriate in the circumstances as nothing has been shown by the Applicants to substantively alter the position since last night when the -- 4 of 6 -- opals were to be collected by Mr Dazborough and brought to Brisbane on Monday next. [16] As regards the application for an adjournment, it is my view that such an application can only be considered by the Tribunal provided that costs thrown away by the Applicants are paid by the Respondent. This is opposed by the Applicants. I also consider that if there is to be an adjournment it would have to be on the basis of the Applicants being allowed back to work at the mining lease concerned. This has been an issue that has been put both in evidence and submissions before me since the early stages of this application as of principal concern to the Applicants. [17] Issues have also been raised as to the quantum of any costs that I should order in this matter. There is a difficulty in this matter even in the ordering of the quantum of costs. The usual order that is made in such circumstances is for an order relating to costs thrown away. Whilst that is an appropriate order to make in these circumstances, there is also the issue of costs relating to the unpreparedness of the Respondent to proceed in Winton when the first hearing day of this matter was set down. [18] In the circumstances, it is my view that it is appropriate for there to be an adjournment, but only on the most strict of orders with a view to putting the Applicants in as little financial loss as is possible given the difficult circumstances of this matter. The orders that I make are as follows. (1) That the hearing of this application be adjourned to 10 am on 30 July 2001 in Brisbane for two days subject to the Respondent paying the Applicants' costs thrown away in consequence of the adjournment fixed in the sum of $8,000. Such cost to be paid by the Respondent to the Applicants by 12 noon Thursday 19 July 2001. Should the said costs not be paid by the Respondent by the time specified, the hearing date of 30 July 2001 be vacated and the hearing resume on 20 July 2001 at 10 am in Brisbane. -- 5 of 6 -- (2) Order 1 of 11 July 2001 be vacated and in its place I order that the opal described by the Applicants in paragraph 70 of the affidavit of Milos Bjelivuk sworn on 2 May 2001 and filed herein be delivered up by the Respondent to the Clerk of the Court Coober Pedy by 1.30 pm South Australian time, Friday 13 July 2001 and that the Clerk of the Court Coober Pedy maintain the said opal in a secure location until further order or direction of the Tribunal. (3) Pending the finalisation of the application, the Applicants be permitted to return to and work ML95104 subject to them keeping an accurate record of all opal and boulder found on the said lease and work undertaken on the said lease. (4) So far as is appropriate the Applicants be released from their undertaking of 3 May 2001. [19] Before closing, I wish to make additional observations. Firstly, my costs order fixing the sum of $8,000 is specifically for costs thrown away. It does not take into account the other costs that may have been lost by the Applicants pursuant to the conduct of this matter. [20] Whether or not the Respondent is in a financial position to pay those costs is a matter for another day and submissions as to costs will be entertained at a later date. I wish to make that aspect clear. [21] As regards the delivery up of the opal referred to in order 2, should that opal not be delivered up by the date and time specified, I give liberty for the Applicants to bring the matter back before me urgently by telephone if necessary with respect to the question of contempt proceedings. -- 6 of 6 --