Deeley v Hicks [2001] QLRT 33

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: In Re Ronald Leslie Deeley and Russell Brendon Hicks and Cameron Jeffrey Hicks [2001] QLRT 33 PARTIES: Ronald Leslie Deeley Applicant - and - Russell Brendon Hicks and Cameron Jeffrey Hicks Respondents FILE NO/S: LXX40004/2000 PROCEEDING: Application to re-open hearing DELIVERED ON: 5 June 2001 DELIVERED AT: Brisbane HEARING DATE: 5 June 2001 PRESIDING MEMBER: Smith DP ORDER/S: I order that: 1. The Applicant’s application to re-open the hearing be refused. (at [25]) 2. Order number 1 of myself dated 2 April 2001 be vacated and that in its place I make the following order: (1) Following delivery of judgment in the application in a proceeding in the matter of Elliott and Hicks LXX40066/2000 the parties may file and serve on each other further submissions as to the quantum of compensation that should be determined in this matter in accordance with the following timetable: (i) The Applicant Deeley within 10 days of the delivery of judgment. (ii) The Respondent Hicks within 17 days of the delivery of judgment. (iii) The Applicant Deeley may reply to any submissions made by or on behalf of the Respondents within -- 1 of 7 -- three days of service of the Respondent’s submissions. (at [28]) CATCHWORDS: PRACTICE AND PROCEDURE – UNREPRESENTED PARTIES – APPLICATION FOR COMPENSATION – HEARING – RE- OPEN – ESTIMATE OF TIME – DELAY – JUDICIAL PROCESS – RULES OF EVIDENCE – WEIGHT – PERJURY - MISCONDUCT COUNSEL: N/A SOLICITORS: Mr Deely represented himself Mr Houen (Agent) appeared for the Respondents Mr and Mrs Hicks [1] SMITH DP: (Ex Tempore) Today I have been hearing a directions hearing, which could more aptly be described as an Application in a Proceeding, although in that sense, it has not been on notice to the Respondents, save that Mr Houen, representing the Respondents, Mr and Mrs Hicks, was advised of the directions hearing and given a broad outline that the Applicant, Mr Deeley, was seeking a continuation of the hearing in this matter, but no details further than that, as I understand. [2] By a facsimile received at the Tribunal on 20 April 2001 from the Applicant, addressed to the President, the Applicant claims that in this matter to date, he has had an absence of natural justice and further complains about various elements of the hearing to date and the reception of evidence. He seeks a re- opening of the hearing. [3] I should, before continuing, make some comments regarding the state of the hearing of this matter. [4] The matter has been heard over a period of approximately two and a half days, having first been heard on 21 February 2001 and subsequently, on 2 April 2001 and then for part of 3 April 2001. The original estimate of time by the parties -- 2 of 7 -- for the hearing of this matter was two to three hours. The case has been unusual in that it was one of the earlier matters dealt with by the Tribunal. [5] It in fact bears matter number LXX40004 of 2000, indicating that it was the fourth file of its nature received by the Tribunal and therefore, many of the practices and procedures of the Tribunal are new and the file has in part been a testing ground for both the parties and the Tribunal. [6] This has been particularly so relating to issues arising out of what I will call the Bourne report, a report from an officer of the Department of Natural Resources, as it then was, which resulted in various hearings by the Tribunal on interlocutory points which have added to the time and delay in concluding this matter. [7] The Tribunal has been cognisant of the fact that throughout these proceedings the Applicant has not been legally represented and the Respondents have been represented but by an agent as opposed to a lawyer. I note in particular the transcript of this proceeding on the first day when I made particular reference to the manner in which the Tribunal operates and the manner in which latitude is given to unrepresented litigants. That appears at pages 3 and 4 of the first day’s transcript from 21 February 2001. [8] I appreciate that any hearing in any jurisdiction is a difficult exercise for unrepresented litigants. However there are over-riding principles of justice which any Presiding Member as a judicial officer has to take into account when considering these matters. [9] It is often a difficult process to balance the giving of extra time to parties to consider a matter and to make their submissions when not legally represented. The balance is this – when does that additional time almost become an abuse of process or repetitious of its own nature as opposed to what latitude would be given to a barrister or a solicitor when appearing before the Tribunal. With their legal qualifications, much more would be expected of them in the way that their case was conducted. -- 3 of 7 -- [10] It is my view that what has occurred to date in this manner demonstrates the extent to which the Tribunal has allowed time for the parties to put their case. As I mentioned the hearing has occupied almost two and a half days to date. I am concerned though that Mr Deeley believes, and I do find his beliefs to be genuine, that he has additional evidence that would have an impact on this case as a basis for wishing to re-open the hearing and take additional evidence. [11] However, I find, in the main, the Applicant’s beliefs in this matter to be unfounded, principally because of a lack of understanding, as I discern it, of the judicial process. [12] I cite the following example: at page 2 of the Applicant’s fax to the President of 20 April 2001, as previously referred to, the Applicant has this to say: “To give preference to George Bourne’s DNR Desktop Report instead of the DME Field Officer’s Report is ridiculous.” [13] The letter from the Applicant then goes on to discuss various aspects relating to that report. It is written as if I have already made conclusions and reached decisions as to the evidence given and how that is to be dealt with. [14] Of course, prior to delivering a judgment, that is not the case. I have not completed my judgment in this matter and I have not, as yet, reached any conclusions as to the preference of one body of evidence over another. [15] I believe that the confusion that the Applicant has exhibited in this matter stems from a failure to fully appreciate the manner in which the Tribunal operates in receiving evidence. The rules of evidence do not apply before the Land and Resources Tribunal.1 However it is necessary for a Presiding Member to take into account the weight that should be given to any evidence. To put it in lay terms, anything that can be seen as in any way relevant to a proceeding, when placed before the Tribunal by one party or another will become evidence in the proceeding. However, in some circumstances, although formally before the Tribunal, no or almost no recourse may be given to that evidence. In legal terms that evidence is given no weight. This can lead to confusion in 1 Land and Resources Tribunal Act 1999, s. 49(2). -- 4 of 7 -- unrepresented parties thinking that as the material is accepted by the Tribunal as evidence, it is accepted as truth. [16] Receipt of evidence by this Tribunal is not receipt of the truth of the facts contained within that evidence but is subject to the weight that a Presiding Member wishes to place upon that evidence. [17] This is particularly the case in light of the Applicant’s comments in this matter relating to the property’s carrying capacity, issues regarding the creek, roads across the creek, et cetera. It is my view that I am in a position to make a decision on the relevant weight of evidence that has been placed before me in this matter based on the material and submissions that I currently have. [18] There are, of course, avenues for the Applicant if on the delivery of my judgment the Applicant is not satisfied with the way I have dealt with any of the evidence. The principal avenue, of course, is by way of an appeal which in this circumstance would be to the President of the Tribunal. [19] There are also other avenues that are available. If it can be established, as alleged by the Applicant, that deliberate lies have been said by a person under oath, that is an issue of perjury and evidence relating to such perjury can certainly be placed before the police for criminal prosecution purposes. [20] Furthermore, reference was made by the Applicant during the course of today (although somewhat withdrawn when I pointed out the serious consequences of the statements) to a corrupt collusion or to a collusion with an element of fraud on behalf of Mr Bourne and the Respondent, Mr Hicks, relating to the creation of the Bourne report. [21] Should the Applicant have evidence of any such fraud or collusion or, indeed, corruption that amounts to misconduct as defined by the Criminal Justice Act or other relevant law then there are avenues available to the Applicant through the Criminal Justice Commission to have those issues dealt with. [22] In considering this matter I have taken particular account of the lengthy time for all of the parties in concluding this matter. The matter has been before the -- 5 of 7 -- Tribunal since the Tribunal received it’s jurisdiction on 18 September 2000. The actual recommendation of the Mining Warden occurred on 18 November 1999. [23] In making my decision today, I have done so particularly not wishing to put any of the parties to additional time delays or costs in this matter. Were I to order that the Applicant have the opportunity to place further affidavit material before me I would have to give the same opportunity to the Respondents to provide their own affidavit material in reply and then each party would also have the opportunity to request cross-examination of the deponents of any affidavits. [24] The period of time that this may take could be very lengthy indeed and only cause further delay in Mr Deeley taking up his mining on the lease which has already been recommended for grant, and for the Respondents further delay in knowing what compensation they were to receive and how to manage their property in accordance with the mining operations which would then commence. In my view neither the interests of justice nor the interests of either party would be served by such a course of action. [25] On the substantive issue raised by the Applicant therefore I do not propose to conduct a further hearing of this matter for the purpose of having further witnesses sworn or affidavit evidence given. I therefore order that the Applicant’s application to re-open the hearing be refused. [26] However, it is my view that because of the nature of this proceeding, particularly relating to the interconnection with the Elliott and Hicks Application in a Proceeding previously referred to, orders of this Tribunal2 in this matter are such that I could receive further assistance from the parties in this matter by way of written submissions principally relating to the issue of compensation, which is the issue before me. In this regard, I am against the submissions of Mr Houen to the effect that he did not believe that further 2 See in particular order in this matter of 2 April 2001 which is currently in the following terms: “1. The parties in this matter may in a period of 14 days after the delivery of judgment in the Application in a Proceeding in the matter of Elliot and Hicks LXX40066/2000 file any additional written submissions that they may wish to make in light of the judgment in that matter. 2. The Registrar is to provide Mr Houen and Mr Deeley with a copy of the judgment in Elliot and Hicks LXX40066/2000 forthwith on the date of delivery.” -- 6 of 7 -- submissions were warranted. [27] I remind the parties that this is an application for compensation, not a question as to whether or not the mining lease should or should not be granted and that much of the material that has been placed before me to date is at the periphery of issues not directly related to compensation, but more like the evidence that might be provided in a case dealing with whether or not a mining lease should be recommended to the Minister for grant or not. [28] I therefore order that the Order number 1 of myself dated 2 April 2001 be vacated and that in its place I make the following order: (1) Following delivery of judgment in the Application in a Proceeding in the matter of Elliott and Hicks LXX40066/2000 the parties may file and serve on each other further submissions as to the quantum of compensation that should be determined in this matter in accordance with the following timetable: (i) The Applicant Deeley within 10 days of the delivery of judgment. (ii) The Respondent Hicks within 17 days of the delivery of judgment. (iii) The Applicant Deeley may reply to any submissions made by or on behalf of the Respondents within three days of service of the Respondent’s submissions. -- 7 of 7 --