Sykes v Queensland Gas Company Ltd
[2007] QCA 277
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- Unreported Judgment
- Appeal Determined - Special Leave Refused (HCA)
- Sykes v Queensland Gas Company Ltd[2007] QCA 277
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Sykes v Queensland Gas Company Ltd[2007] QCA 277
Sykes v Queensland Gas Company Ltd[2007] QCA 277
SUPREME COURT OF QUEENSLAND
PARTIES: | IAN GRANT SYKES |
FILE NO/S: | Appeal No 5310 of 2007 SC No 10889 of 2006 SC No 2137 of 2007 |
Court of Appeal | |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | |
DELIVERED ON: | 24 August 2007 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 3 August 2007 |
JUDGES: | McMurdo P, Keane JA and Holmes JA Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDER: | 1. Appeals dismissed2. Appellant to pay respondent's costs in each appeal |
CATCHWORDS: | PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PLEADING – STATEMENT OF CLAIM – where first proceedings against respondent struck out on basis that appellant's statement of claim did not comply with the Uniform Civil Procedure Rules 1999 (Qld) – where statement of claim in second proceedings struck out but action stayed pending determination of proceedings in the Land and Resources Tribunal and commission of expert report to establish facts which form basis of claim – whether orders correctly made Petroleum Act 1923 (Qld), s 47(1)(d) Petroleum and Gas (Production and Safety) Act 2004 (Qld), s 116 Uniform Civil Procedure Rules 1999 (Qld), r 149 |
COUNSEL: | The appellant appeared on his own behalf J D McKenna SC for the respondent |
SOLICITORS: | The appellant appeared on his own behalf Corrs Chambers Westgarth for the respondent |
[1] McMURDO P: I agree with Keane JA's reasons for dismissing each appeal with costs.
[2] KEANE JA: In Appeal No 2181 of 2007, the appellant, Mr Sykes, seeks to appeal against orders made by Muir J on 8 March 2007. By those orders, proceedings commenced against the respondent by Mr Sykes on 13 December 2006 were struck out on the ground that Mr Sykes' amended statement of claim did not articulate a reasonable cause of action in conformity with the requirements of the Uniform Civil Procedure Rules 1999 (Qld) ("the UCPR").
[3] On 12 March 2007, Mr Sykes commenced a fresh action against the respondent. This provoked the respondent to apply for summary judgment in the new action. On 15 June 2007, Chesterman J refused the respondent's application for summary judgment, but struck out Mr Sykes' statement of claim in the new action on certain terms. His Honour allowed Mr Sykes' new action to remain on foot, but stayed it until the determination of proceedings in the Land and Resources Tribunal ("the Tribunal"), in which Mr Sykes seeks to establish his title as lessee of Petroleum Lease 72 ("PL 72"), and until Mr Sykes files and serves a report from a suitably qualified expert independent of the parties showing the existence of facts from which the claim may be based. In Appeal No 5310 of 2007, Mr Sykes seeks to appeal against these orders.
[4] In each of the proceedings which have been commenced in the Supreme Court, Mr Sykes has sought to pursue claims against the respondent founded upon assertions that the respondent has, in the course of its exploitation of a petroleum mining tenement granted to it, tapped into the same reservoir of natural gas as that covered by PL 72.
[5] After Chesterman J made the orders the subject of appeal in Appeal No 5310 of 2007, Mr Sykes commenced proceedings in the Tribunal for relief under s 116 of the Petroleum and Gas (Production and Safety) Act 2004 (Qld) ("the Production Act"). The provisions of the Production Act came into force on 31 December 2005. Under the Production Act, the Tribunal is empowered to decide the amount or proportion of petroleum (which is defined to include natural gas)[1] produced from a reservoir from within the area of a petroleum lease and an adjacent lease, that, when produced, is owned by each party. Insofar as Mr Sykes sought relief of this kind from the Supreme Court, it is apparent that his claim was misconceived: under the Production Act, the Tribunal is the only forum which can grant such relief.
[6] Mr Sykes appears on his own behalf. Allowance must be made for any difficulty which Mr Sykes may experience in doing himself justice as a result. The difficulty which confronts a person who represents himself in litigation is proverbial; but Mr Sykes is very articulate and presented his arguments in this Court with considerable confidence. Mr Sykes' confidence in the righteousness of his cause was not, however, matched by an appreciation of the role of this Court as a court of appeal, or of the requirements of the UCPR or of the court's obligation to act in an even-handed way between parties to litigation.
[7] Before this Court, Mr Sykes sought to rely upon material contained in a booklet described as a "Supplementary Record Book, 31 July 2007". This booklet contained much material which had not been before either of the learned primary judges, and, so far as the proceedings in the Tribunal are concerned, alluded to matters which had not occurred when the decisions of the learned primary judges were made. This material is not apt to demonstrate that either Muir J or Chesterman J erred in their determination of the matters before them. It is the function of this Court to correct error, not to entertain afresh applications which have not been shown to have miscarried. This booklet also contained material relating to a cross-application by Mr Sykes for particulars and discovery which also came before Chesterman J. Once his Honour decided to strike out the statement of claim and stay the action, it would have been quite wrong to make orders of the kind sought by Mr Sykes on his cross-application. Because there is nothing in the supplementary booklet which suggests that either decision appealed from was incorrect, I consider that this Court should not receive the booklet proffered by Mr Sykes.
[8] I turn now to consider the grounds on which the orders of Muir J and Chesterman J were made.
The orders of Muir J
[9] In relation to the orders made by Muir J on 8 March 2007, it is clear that Mr Sykes was given several opportunities to produce a statement of claim which conformed with the requirements of the UCPR but was not able or willing to do so.
[10] On 21 December 2006, Muir J heard an application by the respondent to strike out the statement of claim. The respondent's outline identified a number of deficiencies in Mr Sykes' claim and statement of claim. Mr Sykes did not seek to answer the respondent's complaints. At this hearing, Muir J observed that the statement of claim in its then form "doesn't come close to satisfying the UCPR requirements …" and provided Mr Sykes with a copy of the relevant provisions of the UCPR warning him that:
"if you can't produce a pleading in a form which permits a trial to be properly held, then the consequence will be that the pleading will be struck out and you won't be given an opportunity to replead and the claim will simply be dismissed."
His Honour struck out the statement of claim and ordered that Mr Sykes:
"have liberty to apply within 60 days of today's date for leave to file and serve an amended statement of claim. Such amended statement of claim to be fully particularised and otherwise compliant with the requirements of the Uniform Civil Procedure Rules …"
[11] There was no appeal from these orders, and, on 5 February 2007, Mr Sykes filed an application for leave to amend the statement of claim. On 1 March 2007, the respondent filed a cross-application to strike out Mr Sykes' action. These applications were heard by Muir J on 7 March 2007. Once again, the respondent detailed deficiencies in the proposed statement of claim, and Mr Sykes did not seek to answer these complaints.
[12] Mr Sykes was, of course, entitled to represent himself, but he is not entitled to make the difficulties which confront him in formulating a coherent and properly particularised claim a passport to freedom from requirements which affect every litigant. It is clear that the pleading upon which Mr Sykes ultimately relied before Muir J did not comply with the UCPR. It was replete with allegations which were embarrassing in the sense that they were either immaterial to the relief being sought, or were unparticularised, or could by no stretch of the imagination support the relief sought by Mr Sykes.
[13] An obvious example of the last class of deficiency related to Mr Sykes' claim that the respondent's wells must be referred to by the name "Xyloleum". This was said to be a consequence of s 47(1)(d) of the Petroleum Act 1923 (Qld) ("the Act") which requires that a petroleum lease contain a covenant that the lessee work the land demised by the lease "in accordance with recognised good oilfield practice". In this regard, the learned primary judge observed of s 47(d):
"It will be noted that it is a provision in relation to working the land. It is also a provision of a contractual nature in a lease, and a person who is not a party to the lease cannot obtain any benefit from it."
[14] His Honour's observation was plainly correct. In this Court, Mr Sykes was not able to explain how it is that he asserted that these observations were in error. This inability did not deflect Mr Sykes from his determination to persist with this distinctly Quixotic claim. In the course of argument in this Court, Mr Sykes was, however, prepared to acknowledge that his pleading did not particularise the nature and provenance of "the good oilfield practice" which mandates the naming of the wells on the respondent's tenements in accordance with Mr Sykes' preference.
[15] Little purpose would be served by a detailed catalogue of the other deficiencies in the pleading. The circumstance that Mr Sykes commenced a fresh action itself tends to confirm that this is so.
[16] Having regard to the history of the proceeding, and Mr Sykes' unwillingness or inability to prosecute his claim in accordance with the rules which govern all litigants, the course taken by Muir J was plainly correct.
The orders of Chesterman J
[17] As I have said, Chesterman J did not strike out Mr Sykes' new action. Rather, his Honour struck out Mr Sykes' new statement of claim on the basis, inter alia, that his claim to be lessee of PL 72 is controversial, and, indeed, is the subject of the proceedings in the Tribunal in which the State of Queensland, the respondent party, seeks cancellation of PL 72.
[18] It is apparent from the terms of PL 72 that the lease expired, according to its own terms, in April 2000. In the statement of claim in this new action, no facts are pleaded which would support a finding that the lease had been extended. Mr Sykes had pleaded no more to establish his title than to assert: "The plaintiff holds a 100% undivided interest in Petroleum Lease No 72 [PL 72]." Mr Sykes asserted in argument, however, that the State's claim to cancel PL 72 recognises that PL 72 exists.
[19] The orders made by Chesterman J contemplate, inter alia, that the issue whether Mr Sykes is the lessee of PL 72 should be resolved before the current proceedings in the Supreme Court continue. Mr Sykes contends that this condition is a matter of hardship for him and was not necessary for the proper disposition of the case.
[20] Mr Sykes' contention fails to appreciate that the order of Chesterman J was reasonably appropriate and adapted to allowing his action to remain on foot even though, as pleaded, it was doomed to fail. As I have said, reference to the terms of the document shows that PL 72 expired years ago. Mr Sykes asserts that he exercised a right of renewal, but none of the facts upon which that assertion is based were pleaded in the new statement of claim. It was inevitable that it should be struck out; without that allegation, Mr Sykes has no standing to sue the respondent.
[21] Accordingly, it can be seen that the decision to allow Mr Sykes' second action to remain on foot was distinctly merciful to Mr Sykes. There was an obvious need to balance mercy to Mr Sykes with some measure of protection of the respondent against being further vexed with a claim which could well prove to be without any foundation. The order made by Chesterman J was, therefore, an order appropriate to ensure that Mr Sykes' allegation of title to PL 72 should not be renewed against the respondent without a sound basis for that allegation.
[22] Mr Sykes' contention that the respondent's wells are tapping into the same reservoir as is covered by PL 72 was an assertion which was, to say the least, controversial in the proceedings before Chesterman J. On the respondent's behalf, evidence was led to the effect that Mr Sykes' tenement is more than 3.7 kilometres from the respondent's extraction, and any reserves of petroleum under Mr Sykes' tenement could not be affected by the respondent's operations. Mr Sykes argued to the contrary, relying solely on his assertion of his own opinion of the matter. The truth of the matter depends upon matters of geological fact which Mr Sykes had failed to particularise at all. In the supplementary record which Mr Sykes sought to put before this Court was included an affidavit by Mr Sykes in which he swore that recent testing by him had shown a loss of gas pressure from PL 72 and that this phenomenon could be explained only by a loss of gas through the respondent's wells. This material was not before Chesterman J. It is not relevant to whether his Honour's decision was affected by error.
[23] Mr Sykes contends that the order that the second action should be stayed pending a report from an independent expert on this issue was not reasonably appropriate or adapted to the requirements of the litigation. Once again, Mr Sykes fails to appreciate that considerations of fairness to the respondent required that, having regard to the history of the case, some provision should be made to protect the respondent from baseless vexation, and that the order which was made was made as a condition of the refusal of the respondent's attempt summarily to terminate his second action.
[24] Mr Sykes argues that he is in necessitous circumstances and cannot afford to commission a report of the kind contemplated by the order of Chesterman J. He argues that his claim can be sustained on the basis of his own evidence of his observations of changes in gas pressure at his tenement and his expert opinion as to the reasons for that phenomenon. While Mr Sykes may be content to rely upon his own evidence at trial, the condition imposed by Chesterman J is appropriate to ensure that there is a reasonable basis, independent of Mr Sykes, for the unparticularised claims made by him.
[25] As to Mr Sykes' necessitous circumstances, his Honour was aware of Mr Sykes' financial difficulties. His Honour might well have thought that these difficulties did not outweigh considerations of fairness to the respondent which was confronted with a claim by a litigant whose previous action had been struck out and whose title to bring the present action was under a cloud. Further, one might think that, if Mr Sykes' action was soundly based (with claims in the millions of dollars), he would have little difficulty in financing a report of the kind required. While it is true to say, as Mr Sykes says, that how Mr Sykes goes about the funding of his action is a matter for him, the Court is entitled, and, indeed, obliged, to ensure that the litigation is conducted fairly to the respondent and not as an exercise in self-indulgence by a litigant who has shown a relaxed attitude to his obligation to adhere to the rules designed to ensure that litigation is conducted fairly to both sides.
Conclusion and orders
[26] Mr Sykes' appeals are without legal merit. The pursuit of these appeals was quite unreasonable. The respondent has been forced to waste resources on retaining lawyers to defend appeals which should never have been brought.
[27] In my opinion, each appeal should be dismissed.
[28] Mr Sykes should pay the costs of the respondent in each appeal.
[29] HOLMES JA: I agree with the reasons of Keane JA and the orders he proposes.
Footnotes
[1] Petroleum and Gas (Production and Safety) Act 2004 (Qld), s 10.