Bjelivuk & Ors v Gemstone Exploration Pty Ltd [2001] QLRT 44

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re Milos Bjelivuk, Sedina Bjelivuk and Ivan Uzarevic and Gemstone Exploration Pty Ltd [2001] QLRT 44 PARTIES: Gemstone Exploration Pty Ltd Applicant (Respondent) - and - Milos Bjelivuk, Sedina Bjelivuk and Ivan Uzarevic Respondents (Applicants) FILE NO: OTX70001/2001 PROCEEDING: Application for stay DELIVERED ON: 21 June 2001 DELIVERED AT: Winton HEARING DATE: 21 June 2001 PRESIDING MEMBER: Smith DP ORDERS: 1. The Application for a stay is refused. (at [10]) 2. Costs of the applications heard to date be reserved. (at [23]) CATCHWORDS: APPLICATION IN A PROCEEDING – STAY APPLICATION - NATURAL JUSTICE – TIME FOR PREPARING FOR A HEARING – ESTOPPEL – DIFFICULTIES RESPONDENTS OWN MAKING Land and Resources Tribunal Act 1999, s 65 Port of Melbourne Authority v Anshun Pty Ltd (No 2) (1981) 147 CLR 589, considered COUNSEL: Mr Jarrett for the Respondent (Applicants) instructed by PW Skewes & Dempster, Solicitors SOLICITORS: Mr Keenan of Eliadis and Associates for the Applicant (Respondent) -- 1 of 5 -- [1] SMITH DP: (Ex Tempore) During the opening of the Applicants’ case before me today, the solicitor for the Respondent wished to have the Tribunal decide an interlocutory point. [2] The point arises from the Response filed on behalf of the Respondent earlier today. In particular Annexure C to the Response sets out the orders sought by the Respondent in this matter. [3] Relevantly, the Respondent seeks the following orders: that the Applicants’ claim before the Tribunal be stayed until further order of the Tribunal; and that the Applicant commence proceedings in the Supreme Court for breach of contract. [4] In making his application Mr Keenan has relied upon an authority, Port of Melbourne Authority v Anshun Pty Ltd (No 2) (1981) 147 CLR 589 at 597-598 per Gibbs CJ, Mason and Aickin JJ. [5] After submissions were heard on this matter, I adjourned for an early luncheon period in order to then give my decision at 1.15 pm. However, on resumption at 1.15 pm and prior to giving my ruling on the stay application, counsel for the application, Mr Jarrett, sought to lead evidence relating to the application for a stay. [6] I had reached a decision in this matter over the course of the luncheon period I have spoken of, but in light of the evidence as opened to me by Mr Jarrett, I thought it appropriate to defer making my decision until such time as I heard the evidence. Evidence was subsequently given by Mr Vance Turner. Additionally, Mr Keenan called evidence from Mr Maxwell Read. [7] Having now heard the evidence of Mr Read and Mr Turner, there is one issue that concerns me, and that is that critical elements of credit arise in this matter which, if I am to rely upon the evidence of either of those persons for the purposes of this application, may indeed have a substantial bearing on the outcome of the substantive proceeding. -- 2 of 5 -- [8] In my view, however, I do not need to depart from what I had intended deciding at 1.15pm irrespective of the evidence given subsequently. [9] In the circumstances of this case, as protracted and convoluted as they have become in the last 24 hours, I do not believe it would be appropriate for me to embark upon a course of action for the purposes of my decision when it is not necessary for me to do so. [10] My decision in this matter is this: that the case should proceed this afternoon with evidence called by the Applicant. The Respondent should also be in a position to cross-examine that evidence this afternoon. The Application for a stay is refused. [11] I will give reasons for this shortly, but principally the interests of justice in my mind demand that the action continue this afternoon. However, there is the aspect of documentation from the Department of Natural Resources and Mines that is before the Tribunal in Winton not being available to Mr Keenan. [12] I will therefore allow liberty for further cross-examination after today only on the limited nature of anything that may arise out of that documentation. [13] I also intend continuing the hearing of this matter at a location to be decided after I hear submissions, but on present indications in Brisbane at a date to be determined next week and then to conclude the matter. [14] My reasons for determining the matter in this way are as follows. In the very short period of time I have had available to me I have not viewed the Port of Melbourne Authority and Anshun case, but I have had the assistance of the submissions made by counsel and Mr Keenan, together with comments made about the case in Cairns’ Australian Civil Procedure. Cairns at page 338 has this to say: “In Port of Melbourne Authority v Anshun Proprietary Limited (No 2), the High Court affirmed a principle of public policy that once a judgment is entered no further proceedings can be maintained on the same cause of action. Although this principle is sometimes called res judicata or cause of action estoppel, it properly rests in public policy rather than estoppel. It precludes raising in later litigation matters that should have been put in issue in earlier proceedings between the same parties.” -- 3 of 5 -- [15] In my view what we have in the instant case is relatively simple. It was conceded by Mr Keenan that the application for an injunction in the substantive matter has been properly commenced in the jurisdiction of the Land and Resources Tribunal. [16] It has also been conceded that, pursuant to s 65 of the Land and Resources Tribunal Act 1999, the Tribunal has very wide powers in hearing and determining actions. [17] Anything that the Applicant wishes to raise in the response, relevant to these proceedings, and in accordance with the Tribunal’s power, can properly be made. That in effect has also been conceded by Mr Jarrett. [18] The Tribunal has before it an application. There seems no good reason why that application should be stayed in circumstances where there is not even on foot in another Court another action which may cause the issue of estoppel to arise. [19] Further, even if such an action were commenced in another jurisdiction, presumably the Supreme or District Court, it may more appropriately be the case that that Court would transfer that action to this Tribunal to hear in conjunction with the current application before me because, as has been conceded as indicated by all parties, I have the power to do so under the current legislative framework. [20] There appears, therefore, to me to be no good reason to grant the stay sought in this matter and I therefore decline to do so. However, as I have indicated I am aware of the difficulties that Mr Keenan is under, some of which arise from the very nature of conducting proceedings by telephone. [21] I wish though to make this point. It has at all times been the decision of the Respondent and the Respondent’s legal representatives not to appear in person in Winton today or yesterday. [22] Difficulties that have arisen to the Respondent because of that, relating to tendered evidence et cetera, are much the Respondent’s own making. The Tribunal has done all within its power, given the short notice and difficulties in -- 4 of 5 -- communication, to accommodate the Respondent in hearing rooms in Brisbane and the Respondent’s representative in person by telephone from Coober Pedy. I believe the interests of justice have been met today in this matter, and the interests of justice demand my continuing with the proceeding in the way I have indicated. [23] I do think it appropriate that costs of the applications heard to date be reserved and I so order. -- 5 of 5 --