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- Unreported Judgment
LAND COURT OF QUEENSLAND
Friese v 2PL Superannuation Pty Ltd as Tte; Friese v Finger  QLC 11
Murray John Friese
2PL Superannuation Pty Ltd as Tte
ACN 159 808 536
Murray John Friese
Francis Michael Finger
Determination of application to vary access to mining leases
31 January 2020 [ex tempore]
30 & 31 January 2020
PG Stilgoe OAM
ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – GENERALLY – where the applicant applied to vary access to his mining leases – where the proposed access track crossed land owned by the respondents – where the proposed track traversed close to stockyards and a watering point – where the applicant pointed to differences in the condition, accessibility, and usage of the tracks – where the applicant and one of the respondents were self-represented – whether there was a good reason to vary access
Mineral Resources Act 1989 s 317
Mineral and Energy Resources (Common Provisions) Act 2014 s 49(2)
Deimel v Phelps  QLC 2, cited
M Friese, the applicant (self-represented)
P Lonergan, a director of the respondent in MRA183-19
J O’Connor (instructed by Anne Murray & Co Solicitors) for the respondent in MRA184-19
- Mr Friese has applied to vary the access to his mining leases. Current access traverses a gazetted road and then through the property currently owned by 2PL. The application is made under s 317 of the Mineral Resources Act 1989. The onus of proof is on Mr Friese to demonstrate that I should approve the alternative access. The only qualification in s 317 of the Act is in s 317(5A): that access should not harm the public interest. But, otherwise, the matter is within my complete discretion.
- Ms O’Connor for Mr Finger suggested that the test is to compare the two routes, and if the proposed route is superior and all else is equal, I could vary the access. Mrs Lonergan for 2PL pointed to s 49(2) of the Mineral and Energy Resources (Common Provisions) Act 2014 and submitted that I should only vary access if the current access is not possible or is unreasonable.
- I’m not persuaded that s 49(2) of the Common Provisions Act is applicable. In any event, I think the test is somewhere between the two propositions. In my view, there has to be a good reason to vary the access, and mere superiority of one over the other may not be enough.
- Can I say that I appreciate this process has been difficult for the self-represented and I congratulate them both on their considerable efforts during this trial. At the end of the day, my decision does not rest on who said what and when, although I acknowledge that this evidence may go to the credit of the witnesses. My decision does not depend on whether or not previous owners allowed access or whether other people had used the proposed track. So the evidence of Messrs Skilton and Mackay would not have been helpful even if they had been called. What I have to decide, as I have already indicated, is whether I should grant a variation of access, having regard to the suitability of the existing access and the proposed access.
- Mr Friese says that the alternative or proposed access is preferred because: one, the existing track becomes impassable after light rain due to the surrounding soils and the unsuitability of the road construction; two, there is no maintenance of the existing track; three, the existing track is often blocked by trees; four, the existing track cannot be accessed by heavy vehicles and has a number of gates, one of which is locked, all of which make access difficult; five, there are few vehicles using the existing track; six, the existing track goes through stockyards and is in close proximity to a water trough in an adjoining property; seven, the proposed track is shorter; eight, the proposed track is safer and; nine, the proposed track is in better condition.
- There is no dispute that the proposed track has less gravel track. The total track itself is not shorter, but I agree that more of it is on a bitumen road. But looking at each of Mr Friese’s points in turn, the first being impassability after rain.
Impassability after rain
- Both tracks cross Rolfe Creek and Oaky Creek. All crossings may be impassable after a significant rainfall event. The existing track may have more water crossings – gullies and the like – but the difference between the two tracks is marginal. The tracks were made of similar material and, at the time of inspection, were in similar condition. I note that the site inspection occurred after 175 millimetres of rain in less than a week, and there was no difficulty in accessing either track. I also note that I participated in a site inspection earlier in 2019, which occurred after 245 millimetres of rain, and there was no difficulty in accessing the existing track.
- Mr Lonergan gave evidence that he has been bogged on the proposed track, but there is no evidence of any similar incident on the existing track. There is a further problem with the proposed track of Mr Finger’s dam. He gave evidence that, during heavy rain, the dam backs up across the proposed track, and the track can be impassable for four to six weeks. There is no similar impediment to the existing track.
- I have already noted that the two tracks appear to be in very similar condition. The evidence shows that the existing track was graded in November 2019. Mr Lonergan – or 2PL – is responsible for the maintenance of the proposed track. Isaac Regional Council is responsible for most of the existing track. Mr Friese’s compensation obligation, if I granted the application, would require a much higher contribution to the maintenance. In any event, as I see no difference in the quality of the track, I do not see this as a factor in deciding whether to approve the variation of access. Mr Friese may dispute the status of the track and the maintenance regime, but I am limited to what I saw.
- The parties agreed that trees can fall on both tracks. Coincidentally, during the site inspection, the proposed track was blocked by a fallen tree that the Fingers and Mr Lonergan pushed aside. Mr Friese asserts that the extent of tree clearing affects the likelihood of trees blocking a track, but he noted – contrary to his own interest – that the existing track had more cleared timber away from the track than the proposed track.
- Mr Friese mentioned the locked gate on the existing track, but there is also a locked gate on the proposed track. He says that the existing track is not suitable for moving heavy vehicles, but there was evidence before me that it was used to transport a shipping container. Mr Friese, as a hobby miner, has not suggested that he intends to use heavy machinery on his lease. The proposed track has as many gates and obstacles as the existing track; it appears to be of a similar construction, so I am assuming that the capacity of the two tracks to carry heavy equipment is similar. No one has given any evidence to the contrary.
- Mr Friese mentioned the difficulty of ambulance access. Both Mr Finger and Mr Lonergan gave evidence that they have an emergency access plan in which ambulance officers have a key to the locked gate. Mr Friese did not give similar evidence, and I think it is fair to assume that he does not have an emergency access plan. That is not a reason to prefer the proposed route which, as I have said, suffers from the same obstacle of a locked gate.
Lack of vehicles using the track
- I don’t understand this point and there wasn’t much evidence called on it. But if vehicle use damages a track, then I would have thought that the lack of other vehicles on an existing track was a benefit rather than a disadvantage. The chance of meeting another vehicle on a single-lane track which drops off on the sides is reduced, and that should be a benefit.
- Mr Friese was concerned that the existing track traverses close to stockyards and the watering point. The proposed track is even more problematic. It passes through a cattle pen which is regularly used to cut out cattle for weaning, branding or sale, and for bringing in new cattle. It is adjacent to a 2PL hospital quarantine paddock. It runs past the area where 2PL keeps most of its infrastructure.
- Mr Lonergan told the Court of the significant biosecurity risk in having an access track close to the hospital quarantine paddock, and close to weaners who stay in the pen for around 14 days. He also told that the difficulties associated with allowing the proposed access track to traverse the pen. The rails are difficult to move safely; the pen cannot be dismantled if there are cattle in it.
- Mr Friese is suspicious that the cattle pen is a very recent addition and was deliberately placed to thwart his access. Mr Lonergan told the Court that the pen had been there for about 12 months. Prior to the site inspection, Mr Friese has never been down the proposed track, and so was unable to comment with any authority about what was or was not in existence. Further, 2PL and the Fingers are entitled to use their properties as they see fit, and I would need very clear evidence – which I do not have – to substantiate an allegation that they deliberately took steps to prevent the proposed access track being used only after Mr Friese lodged his application.
- Mr Friese suggested that the cattle pen could be moved or varied. Mr Lonergan spoke of the significant detriment to the 2PL business if that occurred. Mr Friese did not undertake to compensate 2PL for what would appear to be a very significant sum if those changes were made.
- Mr Finger told the Court – and the site inspection showed – that the proposed track is adjacent to two important dams on his property and also close to cut-out chutes. The proposed track has more, and more significant, infrastructure in close proximity than the existing track.
- Mr Friese told the Court that he would not comply with Mr Finger’s biosecurity arrangements. That is a concern I cannot ignore. He spoke of the fact that the current route traverses three properties whereas the proposed route traverses only two, meaning, in his view, that the biosecurity risk is lower on the proposed route. The other owners have not complained about biosecurity, and the evidence is that Mr Friese traverses a gazetted road for much of that route.
- If the proposed track is in better condition, the difference is marginal. The proposed track has creek crossings like the existing track. The proposed track traverses river flats, like the existing track. The proposed track has rough and steep inclines, like the existing track. The proposed track is prone to blockages from fallen timber – as we experienced during the site visit – and cattle, as does the existing track. The only advantage the proposed track has over the existing track is that the distance required to be travelled on a gravel road is shorter and, therefore, the trip is quicker. These advantages do not outweigh the significant disadvantages to the Finger property or the 2PL property.
- Mr Friese proposed an alternative track around of Mr Finger’s dams. I’m not going to entertain a track that has not been surveyed or properly identified, and I am not going to entertain a proposed track that is not subject of a formal application.
- The application is refused.
- My decision in relation to costs is that Mr Friese should pay the costs of and incidental to the application incurred by Mr Finger. The reason for that is, although costs don’t always follow the event in the Land Court, and – as you correctly pointed out, Mr Friese – we don’t always order costs, it was clear from Mr Lonergan’s affidavit that there was a significant impediment to the use of the proposed access route, and – as I noted in my reasons for judgment – I was concerned that the first time you accessed the proposed route was during the site visit. If you were serious about an application to vary access, then you should have made better attempts to find out exactly what was involved in that, and that should have included a direct approach to Mr Finger before you filed.
- In relation to the costs incurred by 2PL Pty Ltd, Mrs Lonergan, I’ve given you a copy of a case of Deimel v Phelps. In short compass what that says is that self-represented cannot, in this Court, recover the costs of appearing for themselves. What I can do is give you the witness fees for Mr Lonergan for the two days and his travel expenses to and from court. And if you have engaged lawyers, those costs.
- I should note, in relation to Mr Finger, Ms O’Connor, costs are on the District Court scale. I think that the appropriate basis might be to be assessed. So costs to be assessed and to be paid within 14 days of assessment or earlier agreement. And similarly with you, Ms Lonergan, the 2PL costs to be assessed or agreed and paid within 14 days of assessment or agreement.
- The application is refused.
- Murray John Friese must pay the costs of 2PL Superannuation Pty Ltd as trustee, limited to witness expenses incurred by Patrick Joseph Lonergan on 30 and 31 January 2020, travel expenses incurred by Patrick Joseph Lonergan in travelling to and from Court, and the cost of engaging lawyers, if any. Such costs are to be paid within 14 days of the date of agreement or assessment.
- Murray John Friese must pay the costs of and incidental to the application made by Francis Michael Finger as agreed or, if not agreed, as assessed. Such costs are to be paid within 14 days of the date of agreement or assessment.
PG STILGOE OAM
MEMBER OF THE LAND COURT
  QLC 2.
- Published Case Name:
Friese v 2PL Superannuation Pty Ltd as Tte; Friese v Finger
- Shortened Case Name:
Friese v 2PL Superannuation Pty Ltd as Tte
 QLC 11
31 Jan 2020