Wellington v Blackwood Exploration Pty Ltd
[2018] QLC 12
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- Unreported Judgment
- Wellington v Blackwood Exploration Pty Ltd[2018] QLC 12
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Wellington v Blackwood Exploration Pty Ltd[2018] QLC 12
Wellington v Blackwood Exploration Pty Ltd[2018] QLC 12
LAND COURT OF QUEENSLAND
CITATION: | Wellington as Tte for the OR & R Wellington Superfund ABN 81 576 722 911 and the OR & R Partnership ABN 84 165 075 135 v Blackwood Exploration Pty Ltd [2018] QLC 12 |
PARTIES: | Owen Reginald Wellington as trustee for the OR & R Wellington Superfund ABN 81 576 722 911 and as trustee for the OR & R Partnership ABN 84 165 075 135 (applicant) |
v | |
Blackwood Exploration Pty Ltd ACN 142 208 982 (respondent) | |
FILE NO: | CPA706-17 |
DIVISION: | General Division |
PROCEEDING: | Application for a caveat to remain in force until the determination of Supreme Court proceedings |
DELIVERED ON: | 4 June 2018 |
DELIVERED AT: | Brisbane |
HEARD ON: | 27 February 2018 |
HEARD AT: | Brisbane |
MEMBER: | WL Cochrane |
ORDER: | The current proceeding in the Land Court of Queensland be stayed pending a final decision in the proceedings (No 5591 of 2016) presently before the Supreme Court of Queensland. |
CATCHWORDS: | ENERGY AND RESOURCES – MINING – EXPLORATION – CAVEAT – Whether the caveat should be continued PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – commencing proceedings – parallel proceedings in Supreme Court Mineral and Energy Resources (Common Provisions) Act 2014 s 25, s 27 Concrete Developments Pty Ltd v Queensland Housing Commission & Anor [1961] Qd R 356, applied Henry v Henry (1996) 185 CLR 571, applied Re: B (an infant) [1986] 2 Qd R 298, applied Union Steamship Co of New Zealand Ltd v The Caradale (1937) 56 CLR 277, applied |
APPEARANCES: | DM Favell (instructed by Rouse Lawyers) for the applicant D de Jersey (instructed by Thomson Geer) for the respondent |
- [1]The present issue for determination is whether caveat No 221264, registered on 5 October 2017 over an exploration permit for coal (EPC 1802) held by Blackwood Exploration Pty Ltd, should be removed or allowed to continue in force.
- [2]The land subject of EPC 1802 is in the Emerald mining district in the Charters Towers Regional Council and the Isaac Regional Council area. The land is located 150 km south of Charters Towers.
- [3]The effect of the lodging of that caveat was that it would lapse on 4 January 2018 unless the Land Court ordered otherwise.
- [4]On 30 November 2017 the matter came before me by way of application and on that occasion I ordered that:
“Without admission, and noting that from 4 January 2018 the Applicant gives the Court the usual undertaking as to damages, pursuant to s 27(1)(b) of the Mineral and Energy Resources (Common Provisions) Act 2014 the caveat registered on 5 October 2017 with respect to EPC 1802 is to remain in force until 5pm on the date judgment [sic] on the Application is handed down and thereupon lapse unless further extended by order of the Court.”
- [5]Accordingly, the caveat remains in force until this application is finally determined or until there is another order of this, or a superior, court.
- [6]The hearing in which that order was made adjourned until 27 February 2018, when it resumed before me.
- [7]In support of its application the applicant had filed on 17 November 2017, an affidavit of Eloise Victoria Pawley.
- [8]That affidavit was 257 pages in length including compendious exhibits.
- [9]The effect of the affidavit was to set out, in some detail, both the background to the proceeding before this Court, as well as the background to proceeding No 5591/2016 in the Supreme Court of Queensland.
- [10]At the most recent hearing, the applicant maintained the contention that the operation of the caveat should be extended pending the Supreme Court determination. In its written outline counsel for the applicant contended three main reasons why the caveat should be extended.
- [11]They were:
- (a)The respondent gives no undertaking not to deal with EPC 1802;
- (b)The respondent makes no suggestion that there is an immediate need for it to deal with the permit in a way that would require the removal of the caveat. Even with the caveat in place, the respondent is still free to exercise its exploration rights under the permit; and
- (c)The Supreme Court proceeding will likely be determined in the next three to six months.[1]
- [12]Additionally, counsel for the applicant points out that if the caveat is not extended, it would constitute a final determination of the matter and there would be little utility in the applicant pursuing a declaration in the Supreme Court as to the caveatable interest in circumstances where the caveat is no longer in place.[2]
- [13]Responding to those contentions, counsel for the respondent submits that the issue should not be whether the applicant has a caveatable interest, rather, it should be whether the applicant is even entitled to file or lodge a caveat.
- [14]The respondent goes on to say that the applicant in the present proceedings does not have a caveatable interest from the outset.[3]
- [15]Earlier, the applicant applied, pursuant to r 377(1)(c) of the Uniform Civil Procedure Rules 1999 (UCPR), to amend his originating application so that it complied with r 18 of the UCPR.
- [16]That leave was given and by consent the order was made that:
“[T]he Applicant’s originating application be amended so as to read the Applicant as follows:
‘Owen Reginald Wellington as trustee for the OR & R Wellington Superfund ABN 81 576 722 911 and as trustee for the OR & R Partnership ABN 84 165 075 135.’”
- [17]Prior to making that order there was some debate between opposing counsel as to which was the appropriate rule to proceed upon, but nothing turned on that. Mr de Jersey, counsel for the respondent, conceded that the Court had the power to make the amendment sought.
- [18]Upon my reading of the respondent’s outline of argument, I asked Mr de Jersey the following question:
“…Mr de Jersey, if I could - - -…
- - - just deal with your approach to this. Isn’t what you’re asking me to do, to come to a view about the caveat applicable interest pursuant to section 25, just precisely part of what Justice Jackson is being asked to do in the Supreme Court proceedings - - -
Yes, it is, your Honour.”[4]
- [19]There then followed this passage of dialogue between myself and counsel:
“…I know I have the jurisdiction, no doubt about that ‑ ‑ ‑…
‑ ‑ ‑ but when it's part of a bigger picture and there's going to be extensive evidence, then I have to say that I'm strongly disinclined to exercise my discretion to make that order today because I asked you before whether anybody points to any particular detriment if the caveat remains in place, and you said there was no material that did that.
MR DE JERSEY: Yes.
… Now, these were very carefully crafted submissions and they may well be right, but in a circumstance where a higher court is going to make this determination along with others, I see no real mischief in leaving the caveat in place until such time as Justice Jackson considers all of the evidence and then makes a determination. Do you follow what I'm saying?
I do, your Honour.
Can you tell me why I shouldn't do that?
MR DE JERSEY: Because, well, two reasons: it’s common ground between the parties and it’s the law, with respect, that the applicant, Mr Favell’s – my learned friend Mr Favell’s client has to satisfy your Honour that there’s a serious question to be tried. Now, he seeks to do that by submitting, as a question of law, that submitting that you have a right over a mining tenement, an EPC like this one, raises a reasonable – a serious question to be tried.
My contention is – my client’s contention is that regardless of what’s submitted in the Supreme Court proceeding, by claiming what Mr Favell’s client does, he doesn’t raise a serious question to be tried. That issue can be determined today because none of the issues that fall to be contended in the Supreme Court proceedings bear on that legal issue. He simply doesn’t claim an interest in EPC1802 and that’s the – it’s a purely legal issue ‑ ‑ ‑
…‑ ‑ ‑ which hasn’t been determined by any court in this state yet in respect of this piece of legislation, but which, in my respectful submission, is ripe for determination in this matter.”[5]
- [20]Despite acknowledging that the respondent was seeking exactly the same relief as part of its Supreme Court case, Mr de Jersey pressed me that, nevertheless, I should determine the issue of a caveatable interest in these proceedings.
- [21]There have been numerous comments by members of the judiciary throughout the courts of Queensland as to the undesirability of two courts, one in a superior position and one inferior, both at the same time, being asked to consider essentially the same question.
- [22]In Concrete Developments Pty Ltd v Queensland Housing Commission & Anor there have been numerous. In a first instance decision Philp J observed:
“When a plaintiff ivokes the jurisdiction of two courts in Queensland to determine the same question, he is prima facie acting vexatiously, and the Supreme Court will act by stay of proceedings to prevent the vexation, McHenry v. Lewis ([1882] 22 Ch.D. 397), but I see no suggestion that prohibition would lie.
It is the rule when an inferior tribunal is informed that the question before it is also before the Supreme Court, the inferior tribunal should stay its hand, but it is nowhere suggested that its jurisdiction is irrevocably destroyed, by the mere existence of the proceedings in the Supreme Court.”[6]
- [23]Philp J went on to say:
“Hickson v. Hickson ([1953] 1 Q.B. 420) is an even stronger authority that jurisdiction in an inferior court is not destroyed by the pendency in a superior court of proceedings involving the same issue as is before the inferior court.
It seems to me that at most, the jurisdiction of an inferior court in relation to a matter is suspended only during the pendency of that matter in a superior court. If the proceedings in the Supreme Court are terminated by discontinuance they cease to exist, I can see no reason why the inferior tribunal cannot then proceed in the exercise of its jurisdiction. I see no difference in this regard between an inferior court and an arbitration.”[7]
- [24]On appeal the decision of Philp J was not set aside.
- [25]The same issue was also considered by the High Court in Henry v Henry.[8] In that case, the High Court was called upon to consider the desirability of ordering a stay in an action for dissolution of marriage, where proceedings had been commenced in two jurisdictions.
- [26]In a majority judgment the High Court observed:
“Parallel proceedings in another country with respect to the same issue may be compared with multiple proceedings with respect to the same subject matter in different courts in Australia.”[9]
- [27]In Union Steamship Co of New Zealand Ltd v The Caradale, “…Dixon J observed of that latter situation that ‘[t]he inconvenience and embarrassment of allowing two independent actions involving the same question of liability to proceed contemporaneously in different courts needs no elaboration.’”[10]
- [28]In Lucas v Smith & Anor Newton DCJ also referred to the observations of Thomas J in Re: B (an infant) where his Honour observed:
“If it happens that a superior Court and an inferior Court are seised of the same matter at the one time, or if a ruling in the inferior tribunal might embarrass the conduct of the proceedings in the superior Court, it is not uncommon for the lower Court to stay its hand until the other proceedings have taken place. (Knott v Knott [1935] P. 158; Hickson v Hickson [1953] 1 Q.B. 420; Concrete Developments Pty Ltd v Queensland Housing Commission [1961] Qd. R. 356, 364-5).”[11]
- [29]In my view, the decisions and observations reflected above make it clear that in this present case, it would be inappropriate for me to make the determination sought by counsel for the respondent in circumstances where, as he quite fairly acknowledged, the Supreme Court of Queensland is being asked in some later proceedings to answer exactly the same question.
- [30]Accordingly, at the present time, I decline to make any decision on this application until such a time that the Supreme Court proceedings reach a point of finality whether that be by way of the decision of the Supreme Court or on any later appeal.
- [31]The appropriate order seems to me to be that the current proceeding in the Land Court of Queensland should be stayed pending a final decision in the proceedings presently before the Supreme Court of Queensland. I propose to hear counsel on what the terms of the final order should be.
Orders
The current proceeding in the Land Court of Queensland be stayed pending final decision in the proceedings (No 5591 of 2016) presently before the Supreme Court of Queensland.
WL COCHRANE
MEMBER OF THE LAND COURT
Footnotes
[1] Applicant’s Outline, para 4.
[2] Applicant’s Outline.
[3] Respondent’s Outline, paras 21–2, 26.
[4] T 1-10, lines 6 to 15.
[5] T 1-10, line 26 to T 1-11, line 23.
[6] [1961] Qd R 356, 364.
[7] Ibid 365.
[8] (1996) 185 CLR 571.
[9] Ibid 590 (Dawson, Gaudron, McHugh and Gummow JJ).
[10] (1937) 56 CLR 277, 281 cited in Lucas v Smith & Anor [2010] QDC 358 [13].
[11] [2010] QDC 358 [14] citing Re: B (an infant) [1986] 2 Qd R 298.