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- Unreported Judgment
Deimel v Phelps QLC 6
LAND COURT OF QUEENSLAND
Deimel v Phelps & Anor  QLC 6
Mark Phelps & Christine Phelps
CleanCo Queensland Limited
ABN 85 628 008 159
MER011-22 (EPM 25185; ML 100140)
Application to dismiss proceedings
6 June 2022
Submissions closed 18 March 2022
Heard on the papers.
PG Stilgoe OAM
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – whether the applicant had a cause of action – whether there was a lack of procedural fairness – whether the application was frivolous, vexatious, or otherwise an abuse of process – where the parties previously entered a settlement agreement – where a settlement agreement prevented the applicant from initiating proceedings relating to the subject of previous proceedings – where the applicant’s claim is not in a sensible form – where the applicant is self-represented – where the applicant declined the respondent’s offer to pay for part of legal costs
Land Access Code
Land Court Act s 7A
Land Court Rules 2000 s 3, s 4
Mineral and Energy Resources (Common Provisions) Act 2014 s 43
Mineral Resources Act 1989 s 279, s 363(2)(d), s 363(2)(eb)
Mining and Quarrying Safety and Health Act 1999
Mining and Quarrying Safety and Health Regulation 2017
Uniform Civil Procedure Rules 1999 r 16, r 171, r 389A
Vexatious Proceedings Act 2005 s 10
Workplace Health and Safety Act 2011
Deimel v Phelps  QLC 4, considered
ERO Georgetown Gold Operations Pty Ltd v Henry (2015) 36 QLCR 318;  QLAC 4, considered
Giffin v Telstra Corporation Limited  QSC 111, applied
Glencore Coal Queensland Pty Ltd & Ors v Keys & Ors (2014) 35 QLCR 194;  QLAC 2, cited
Mbuzi v Hall & Anor  QSC 359, applied
Nothdurft & Anor v QGC Pty Limited & Ors  QLC 41, cited
Port of Melbourne v Anshun (1981) 147 CLR 589;  HCA 45, applied
Tipperary Oil & Gas (Australia) Pty Ltd & Shelton  QLRT 13, applied
Young v Crime and Corruption Commission  QSC 12, applied
- Wolfgang Deimel holds EPM 25185 and ML 100140 which are located on land owned by Mark Phelps and Christine Phelps (the Phelps).
- The Phelps have leased part of their land to CleanCo Queensland Limited so that it can develop the McIntyre Wind Farm Project. The leased area includes both the ML and the EPM. Wind farm construction will occur in the EPM and adjacent to the ML.
- In 2021, Mr Deimel filed proceedings in this Court seeking orders to “remove CleanCo from the land title”. He said that the CleanCo’s interest was preventing all work on the EPM and the ML. He said that the Court’s decision about compensation did not allow for a wind farm to be constructed on the EPM. He submitted that CleanCo must enter into a CCA agreement with him.
- The 2021 proceedings settled with the parties signing a settlement agreement.
- Mr Deimel filed fresh proceedings. This time, he wants an order that “the landholder” comply with the Land Access Code. As before, he says that the lease has an adverse effect on his operations and that CleanCo must enter into a CCA with him.
- CleanCo has filed an application to strike out Mr Deimel’s proceedings. There are two primary arguments. The first is that Mr Deimel has not disclosed any recognisable cause of action. The second is that the proceedings are an abuse of process because of the terms of the settlement agreement.
- In exercising its jurisdiction, this Court has all the powers of the Supreme Court in the same way and to the same extent as may be done by the Supreme Court in a similar proceeding. Section 3(1) of the Land Court Rules 2000 provides that, in the absence of a Land Court rule, direction or order, the Uniform Civil Procedure Rules (UCPR) apply with necessary changes. Section 3(2) states that an originating application under the Land Court Rules is to be treated as if it were a claim under the UCPR.
- Rule 16 of the UCPR allows the Court to declare that a proceeding has not been properly started for want of jurisdiction, or to set aside an originating process, stay a proceeding, or make any other order the court considers appropriate.
- Rule 171 of the UCPR allows the Court to strike out a pleading, or part of a pleading, if it discloses no reasonable cause of action, is frivolous or vexatious, or otherwise an abuse of process.
Does Mr Deimel have a cause of action?
- CleanCo bears the onus of establishing that Mr Deimel’s cause of action is so clearly untenable that it cannot possibly succeed.
- In section 9 of a Land Court originating application, the applicant must set out:
- 1.The facts, circumstances, and other relevant matters on which the application is based. Mr Deimel stated that future property improvements had not been addressed in a CCA as required by the Land Access Code and that the landholder had signed an agreement with CleanCo to construct a wind farm over the EPM which has had an adverse effect on the operation of the EPM and the ML.
- 2.The order or relief sought. Mr Deimel stated that he wanted the landholder to comply with the Land Access Code.
- 3.The grounds on which the order or relief is sought. Mr Deimel stated that no CCA was entered into to reflect future property improvements.
- The MERCP Act gives the Court limited jurisdiction:
- 1.To resolve a dispute arising between a resource holder and an owner or occupier of land about the criteria for deciding whether access is reasonable; and
- 2.To vary an access agreement because of a material change in circumstances.
- Mr Deimel asserts that the lease to CleanCo has created a material change in circumstances. He says that contractors have been accessing the EPM, the access track to the ML and entering the ML. He relies on the Mining and Quarrying Safety and Health Act and regulations, and the Workplace Health and Safety Act to argue that his safety obligations are compromised by wind farm contractors accessing the EPM. Because of the alleged incompatibility, Mr Deimel says he did not work the ML and therefore lost income.
- The requirement to enter into a CCA sits in Chapter 3 Division 2 of the MERCP Act. It is clear from a reading of the Act as a whole that Division 2 is intended to protect the rights of the landholder or occupier, not the holder of the resource authority. Decisions of this Court to date have focused on changes in the mining operation which might change the amount of compensation payable to the landowner. However, the alleged material change in the landowners’ circumstances may be enough to support a proceeding in this Court. The Land Appeal Court has said:
“It is enough to note that the condition is satisfied when there is a material difference between the circumstances for the mining lease when the compensation was originally agreed or determined, and the circumstances for the mining lease at the date when the change is said to have occurred, the change relating to circumstances relevant to the agreement about or determination of compensation.”
- A close reading of Mr Deimel’s submissions reveal the glimmer of a cause of action because there may have been a change to the circumstances relevant to the determination of compensation or to Mr Deimel’s access rights. I note that the Phelps have a different view. For present purposes I do not need to decide whose view is correct; it is enough that there may be a dispute that falls within the jurisdiction of the Court.
- The Court also has wide jurisdiction to hear and determine proceedings with respect to mining disputes. It can hear a dispute about any encroachment or trespass upon or interference with or damage to land. It can hear a dispute between the holder of a mining right and any owner or occupier of the land.
- Mr Deimel has identified a dispute about access between himself as holder of the ML and CleanCo as an occupier of the land which may also give this Court jurisdiction.
Is there a lack of procedural fairness?
- While I am required to give proper assistance to a self-represented litigant such as Mr Deimel, I cannot become his adviser.
- Mr Deimel may have the glimmer of a claim, but it is not in “a sensible form” that would enable CleanCo to properly respond to the proceedings. Even a relatively simple case must be articulated in a way that enables a party to work out the nature of the claim, the relief sought, what the claim is for and how the party can respond to it. In its present form, Mr Deimel’s claim does not allow CleanCo to respond properly.
- The Court’s mandate is to facilitate the just and quick resolution of issues in the proceeding and to avoid undue delay, expense and technicality. Mr Deimel must participate in the proceeding in an expeditious way. Mr Deimel’s status as a self-represented party does not exempt him from this obligation.
The settlement agreement
- The settlement agreement is between Mr Deimel on the one hand and the Phelps, CleanCo and Acconia Energy Oceania Construction Pty Ltd. Acconia is a contractor managing the adjacent Karara wind farm project and has been conducting preliminary works on behalf of CleanCo.
- By clause 3.3 of the settlement agreement, Mr Deimel agreed that the document was in full and final satisfaction of any compensation, liabilities or other payments payable now or in the future by CleanCo or Acconia for or in respect of any matter relating to the Karara Wind Farm project, the Macintyre Wind Farm Project or the Phelps’ land.
- By clause 8(a)(i) of the settlement agreement, Mr Deimel agreed not to initiate any proceedings in the Land Court relating to the subject of the 2021 Land Court proceedings, CleanCo, Acconia, the Phelps’ land, Karara wind farm project or the Macintyre wind farm project.
- By clause 8(c) of the settlement agreement Mr Deimel agrees that, if he acts inconsistently with the settlement agreement, CleanCo may rely on the agreement and provide a copy to the court.
- By clause 17, Mr Deimel acknowledged that he had entered into the agreement fully and voluntarily. He acknowledged that he might discover facts different from, or in addition to, the facts on which he entered into the agreement. He acknowledged that the agreement was in full and final settlement of all claims which existed or may exist or have existed relating in any way to the matters the subject of the agreement.
- On its face, this proceeding is a breach of clause 8(a).
- Mr Deimel says that the settlement agreement is void because he entered into it under false pretences. He repeats his assertion that the parties must enter into a CCA. He says that Acconia is not an occupier of the land but asserted that status when signing the settlement agreement. He says CleanCo did not have a valid occupier status. He says that, although he has asked for copies of the agreement between the Phelps, CleanCo and Acconia, they have not been provided. He says this lack of information has disadvantaged him and that he probably would not have signed the settlement agreement if he did have access to those documents. He says that there was no disclosure that the development application for the Macintyre wind farm had been approved.
- It is not for me to explore the detail of Mr Deimel’s submissions in this application to strike out a proceeding, although it seems to me that the settlement agreement is a complete answer to his claim. Whether or not there had to be a further CCA was a matter before the parties in mediation. The status of Acconia and CleanCo was articulated in the agreement and Mr Deimel had the opportunity to test and consider the truth of those assertions. The settlement agreement specifically contemplates that Mr Deimel might receive further information after the fact.
Is Mr Deimel’s application frivolous, vexatious or otherwise an abuse of process?
- If the settlement agreement is valid, then Mr Deimel’s application is clearly an abuse of process.
- Even if the settlement agreement is invalid, and there is no real evidence to suggest that it is, these proceedings may still be frivolous, vexatious or an abuse of process.
- An attempt to re-litigate matters already disposed of by a court may be vexatious.
- CleanCo suggests that these proceedings relate to matters that have already been ventilated by the Court. That is not correct. The earlier proceedings were referred to mediation only a month after Mr Deimel filed the originating application and with no Court intervention other than the directions hearing. The proceeding was settled with the assistance of a mediator but with no intervention by the Court. The matters in dispute may be the same but none of them had been ventilated before the Court.
- Mr Deimel has declined CleanCo’s offer to cover some of his costs of legal advice. The Department of Environment and Science has advised Mr Deimel that he does not have exclusive access over the EPM and that his health and safety responsibilities do not exist over the EPM. CleanCo’s lawyers reminded Mr Deimel of his obligations under the settlement agreement and the fact that he had received a substantial payment under that agreement. Mr Deimel was asked whether there was a new issue to which he, apparently, has not replied.
- In a letter to the Court dated 19 January 2022, which was copied to Mr Deimel, the lawyers for CleanCo set out their issues with Mr Deimel’s proceedings. They are the same issues that are before me now. Mr Deimel did nothing in response to that letter.
- Mr Deimel has been given the opportunity to amend his application to put it into a sensible form. He has been offered legal assistance to do that. He has made no real attempt to do so.
- Atkinson J has observed that because striking out a proceeding is the end of the proceeding, there must be a high degree of certainty about the ultimate outcome of the proceeding.
- Four factors combine so that I am satisfied that I should exercise my discretion to strike out Mr Deimel’s claim. Firstly, Mr Deimel’s claim is but a glimmer and it would be an abuse of process to require a response to a claim that is so vague. Secondly, despite encouragement to do so, Mr Deimel has not taken the opportunity to properly articulate his claim. Thirdly, Mr Deimel’s claim in this proceeding is so similar to his claim in the earlier proceeding as to be indistinguishable. Finally, and importantly, Mr Deimel has the benefit of the settlement agreement which contains specific clauses prohibiting further action.
Future conduct of Mr Deimel
- CleanCo says that because Mr Deimel has breached the settlement agreement by bringing this proceeding, there should be an order pursuant to UCPR r 389A that he may not start a similar proceeding against a party to the existing proceeding without the leave of the Court.
- Rule 389A applies if I am satisfied that Mr Deimel made more than one application in relation to the existing proceeding that is frivolous, vexatious or an abuse of process.
- It is clear from the words of r 389A that it was designed to address the consequences of unnecessary interlocutory applications within a proceeding. This interpretation has been endorsed by Applegarth J in Mbuzi.
- Mr Deimel has undoubtedly filed more than one proceeding. He has not, however, filed more than one interlocutory application in the existing proceeding. Rule 389A does not give me the power to make an order restricting Mr Deimel’s right to bring fresh proceedings.
- Applegarth J observed that r 389A does not displace the Supreme Court’s inherent jurisdiction to prevent an abuse of process by requiring a vexations litigant to obtain leave to issue fresh proceedings.
- It would be wrong to interpret this Court’s powers to include a power to punish vexatious litigants. The Land Court is a creature of statute and, therefore, has no inherent powers. The Vexatious Proceedings Act gives the Supreme Court power to make such orders about starting proceedings in Queensland, having regard to proceedings instituted or conducted in any Australian Court or tribunal. By giving that broad power to the Supreme Court, the Legislature must have necessarily intended that no other court had that power.
- I decline to make an order in the terms sought by CleanCo. Mr Deimel should not, however, view my reluctance to do so as any form of encouragement to take his grievance further.
- I cannot prevent Mr Deimel from starting fresh proceedings but I can, and do, strike this proceeding out as an abuse of process.
- 1.The Originating Application is dismissed.
- 2.Any submissions seeking a costs order in this proceeding must be filed and served within 14 days of the publication of these reasons.
Mineral Resources Act 1989 s 279 (‘MRA’).
Mineral and Energy Resources (Common Provisions) Act s 43 (‘MERCP Act’).
Deimel v Phelps  QLC 4.
Land Court Act s 7A.
Tipperary Oil & Gas (Australia) Pty Ltd & Shelton  QLRT 13 .
ERO Georgetown Gold Operations Pty Ltd v Henry (2015) 36 QLCR 318;  QLAC 4; Glencore Coal Queensland Pty Ltd & Ors v Keys & Ors (2014) 35 QLCR 194;  QLAC 2 ; Nothdurft & Anor v QGC Pty Limited & Ors  QLC 41.
ERO Georgetown Gold Operations Pty Ltd v Henry (2015) 36 QLCR 318;  QLAC 4 .
Filed 10 March 2022.
Mbuzi v Hall & Anor  QSC 359  (Mbuzi).
Young v Crime and Corruption Commission  QSC 12 .
Giffin v Telstra Corporation Limited  QSC 111 .
Land Court Rules 2000 s 4.
Ibid s 4(b)(i).
Mbuzi v Hall & Anor  QSC 359 .
Port of Melbourne v Anshun (1981) 147 CLR 589;  HCA 45.
Affidavit of John Ignatius Briggs, Ex JIB4.
Affidavit of John Ignatius Briggs, Ex JIB5.
Affidavit of John Ignatius Briggs, Ex JIB6.
Affidavit of John Ignatius Briggs, Ex JIB6 page 3.
Affidavit of John Ignatius Briggs, Ex JIB7 page 2.
Giffin v Telstra Corporation Limited  QSC 111 .
Mbuzi v Hall & Anor  QSC 359 .
Vexatious Proceedings Act 2005 s 10.
- Published Case Name:
Deimel v Phelps & Anor
- Shortened Case Name:
Deimel v Phelps
 QLC 6
PG Stilgoe OAM
06 Jun 2022