Buttcroft Pty Ltd v Edgar[2011] QLAC 7

LAND APPEAL COURT OF QUEENSLAND

1. [1]
   THE COURT:  The applicant, Buttcroft Pty Ltd, seeks an extension of time in which to institute an appeal against a decision of the Land Court.  That application is opposed by the respondent, Jeffrey R Edgar.

The Proceedings Below

2. [2]
   The proceedings concern the determination of compensation for the further renewal of a Mining Lease 5856 under the provisions of the Mineral Resources Act 1989 (Qld) (“MRA”).  The applicant is the miner and the respondent a grazier and the landowner on which the mining is to be conducted.  The issue relevant on appeal between the parties is the compensation payable for loss of the use of surface area for grazing.  The Land Court determined that the miner pay to the landowner the sum of $1,638 per annum as compensation for loss of possession of the surface area plus $163.80 per annum in advance “being the 10% allowance in recognition of the compulsory nature of the process” provided by s. 281(4)(e) of the Mineral Resources Act 1989.

Relevant Matters

3. [3]
   It is well established that the relevant matters to consider on an application for extension of time to lodge an appeal include:

1. (a)
   the extent of the delay;

2. (b)
   whether the applicant has any reasonable explanation for the delay;

3. (c)
   any prejudice to the respondent;

4. (d)
   the prospects of success on appeal.

The Delay

4. [4]
   The determination was made on 12 November 2010. Section 282(1) of the MRA provides that “a party aggrieved by a determination of the Land Court made under section 281 may within 20 business days of the date of that determination or within such further period as the Land Appeal Court, on the application of that party in that behalf prior to the lodgement of the appeal, considers appropriate in any particular circumstances, appeal against the determination to the Land Appeal Court”.

5. [5]
   Thus the applicant had until 10 December 2010 to lodge its appeal. Notice was first given to the respondent and to the Court of an intention to appeal when the applicant purported to file a Notice of Appeal on 18 February 2011. Hence the delay is in the order of two months and whilst that is a significant delay it is not inordinate.

The Explanation for the Delay

6. [6]
   The applicant contends that it did not become aware of the determination being handed down until 17 January 2011, long after the appeal period had expired. Hence its delay in commencing an appeal. It then thought that it had 42 days in which to lodge an appeal because of a reference to that period on the Court’s website. The website in fact reads: “A party intending to appeal against a decision of the Land Court must, within 42 days (unless otherwise specified in legislation) after the court's decision is given to the party, serve notice of appeal” (underlining added).  Here another period is specified in the legislation. Obviously reference was not made to the legislation.

7. [7]
   If it be accepted that the applicant did not learn of the decision until 17 January, there is a reasonable explanation for the delay at least until then and for a reasonable period thereafter to enable some response to be filed. A failure to examine the legislation to be aware accurately of one’s rights is not reasonable. Hence no reasonable explanation attaches to at least some weeks of the delay.

8. [8]
   The respondent submits that the Court should reject the claimed delay in the provision to the applicant of the Land Court’s determination.  That is so because the Court records show that a letter enclosing the decision was sent out to each of the parties on 12 November 2010.  The respondent duly received his copy about 5 days later.  Why the applicant did not receive its copy is unexplained.

9. [9]
   In our view the applicant’s explanation for the delay should be accepted. That is so for three reasons. First there is a sworn affidavit as to when the letter for the Court was received. We would be reluctant to make a finding of deliberate perjury effectively on the papers. Secondly, there are markings on the envelope that to some extent support the claim that the letter was not processed by Australia Post until late December. Thirdly, the floods in Queensland certainly disrupted services of all types through late December - early January and so the claimed late delivery is not inherently improbable. 

Prejudice

10. [10]
    No prejudice is alleged.

Prospects of Success

11. [11]
    Those being the relevant considerations, despite the lengthy delay and some part of it being the fault of the applicant, we would grant the application to extend time provided that the appeal had some reasonable prospect of success. The lack of prejudice and the relative shortness of the period of delay that can be attributed to the fault of the applicant require that approach.

12. [12]
    As best can be determined from the applicant’s material the grounds of the appeal are:

1. (a)
   the Member failed to take into account that the respondent “had admitted that in the 20 years he had not withdrawn his cattle and therefore suffered no loss of production”;

2. (b)
   the respondent admitted he accepted compensation payments in that 20 year period and hence made a profit;

3. (c)
   “the statutory minimum (10%)” (presumably the 10% provided for in s. 281(4)(e) of the Mineral Resources Act 1989) does not apply;

4. (d)
   The witness Mr Hamilton was biased and “cannot be accepted as an expert witness” as he had had business dealings with the respondent;

5. (e)
   The MRA “does not state that the land owner should profit only compensation.”

13. [13]
    To understand those grounds and to assess their prospects it is necessary to consider the findings below.

The Findings Below

14. [14]
    No witnesses were called on behalf of the miner. The respondent gave evidence and called a Mr Noel Peter Hamilton, a livestock agent and salesman with 40 years experience in this work. Mr Hamilton gave evidence by telephone and was cross-examined. The relevant findings were:

14. “[13]
    The evidence of Mr Edgar, supported by that of Mr Hamilton, was that the land the subject of this mining tenure would conservatively carry, in the long term, 14 weaner heifers during the 39 weeks of each year that the paddock is used. It is spelled for the remainder of the year to allow the grass to recover.

14. [14]
    The landowner is not asking for any compensation for the 13 weeks in a year when the land would normally not be used for grazing.

14. [15]
    The weaners are, on average, about 200 kg in weight.

14. [16]
    The evidence of carrying capacity was tested in cross-examination but did not change.

14. [17]
    The evidence was that agistment of cattle such as those normally "backgrounded" in this paddock would cost $3 per head per week. Doing the maths of 14 cattle at $3 per week for 39 weeks per year for 5 years yields $8,190 which is contended for as the cost of not being able to use the land once it has been fenced off for mining.

14. [18]
    Although it was suggested on behalf of the miner that in the past the land had been grazed while subject to a mining tenure, the evidence is that the land will be fenced so that stock will be excluded.

14. [19]
    The evidence by and for the landowner provides a cogent basis for the claim of $8,190 being attributable to loss of the use of the surface area. I am satisfied that the evidence of the use of the relevant area is reliable and having seen the demeanour of Mr Edgar in the witness box and heard his evidence, and heard the evidence of Mr Hamilton, I accept their evidence as witnesses of truth. No contrary evidence was given or called by or on behalf of the miner.”^[1]

Consideration

15. [15]
    The relevant provisions of the MRA that govern the determination of compensation by the Land Court in the circumstances that prevail here are contained in s 281 and provide, inter alia:

281 Determination of compensation by Land Court

1. (1)
   At any time before an agreement is made pursuant to section 279 or 280, a person who could be a party to such agreement may apply in writing to the mining registrar to have the Land Court determine the amount of compensation and the terms, conditions and times of payment thereof.

1. (2)
   The Land Court is hereby authorised to hear and determine matters referred to in subsection (1).

1. (3)
   Upon an application made under subsection (1), the Land Court shall settle the amount of compensation an owner of land is entitled to as compensation for—

1. (a)
   ….

1. (b)
   in the case of compensation referred to in section 280—

1. (i)
   diminution of the value of the land of the owner or any improvements thereon;

1. (ii)
   diminution of the use made or which may be made of the land of the owner or any improvements thereon;

1. (iii)
   all loss or expense that arises;

as a consequence of the grant or renewal of the mining lease.

1. (4)
   In assessing the amount of compensation payable under subsection (3)—

1. (a)
   where it is necessary for the owner of land to obtain replacement land of a similar productivity, nature and area or resettle himself or herself or relocate his or her livestock and other chattels on other parts of his or her land or on the replacement land, all reasonable costs incurred or likely to be incurred by the owner in obtaining replacement land, the owner’s resettlement and the relocation of the owner’s livestock or other chattels as at the date of the assessment shall be considered;

1. (b)
   no allowance shall be made for any minerals that are or may be on or under the surface of the land concerned;

1. (c)
   if the owner of land proves that the status and use currently being made (prior to the application for the grant of the mining lease) of certain land is such that a premium should be applied—an appropriate amount of compensation may be determined;

1. (d)
   loss that arises may include loss of profits to the owner calculated by comparison of the usage being made of land prior to the lodgement of the relevant application for the grant of a mining lease and the usage that could be made of that land after the grant;

1. (e)
   an additional amount shall be determined to reflect the compulsory nature of action taken under this part which amount, together with any amount determined pursuant to paragraph (c), shall be not less than 10% of the aggregate amount determined under subsection (3).”

16. [16]
    The principles that govern this appeal are set out in s 282 of the MRA which provides, so far as is relevant:

1. “(1)
   A party aggrieved by a determination of the Land Court made under section 281 may, within 20 business days of the date of that determination or within such further period as the Land Appeal Court, on the application of that party in that behalf prior to the lodgement of the appeal, considers appropriate in any particular circumstances, appeal against the determination to the Land Appeal Court.

….

1. (3)
   The Land Appeal Court shall have jurisdiction to hear and determine an appeal under this section.

1. (4)
   In deciding an appeal, the Land Appeal Court must consider the things relevant to the appeal that the Land Court was required to consider when making the decision appealed against.

1. (5)
   Upon hearing an appeal under subsection (1) the Land Appeal Court may—

1. (a)
   vary the determination of the Land Court in such way as it thinks just;  or

1. (b)
   disallow the appeal and confirm the determination of the Land Court; and may make such order as to costs of the appeal as it thinks fit.

1. (6)
   The Land Appeal Court shall not admit further evidence upon an appeal from a determination of the Land Court under subsection (1) unless—

1. (a)
   it is satisfied that admission of the evidence is necessary to avoid grave injustice and there is sufficient reason that the evidence was not previously adduced; or

1. (b)
   the appellant and respondent agree to its admission.”

17. [17]
    No submission is made that the Land Court applied any wrong principle in making the determination save in respect of his application of subsection 281(4)(e). With respect, in that regard it is plain that the Land Court had no discretion in the matter.  The legislation provides that an additional 10%, at least, is to be allowed over and above the amount of compensation determined under subsection (3) – no amount was allowed under paragraph (c) and so that part of the subsection is irrelevant.  That additional component is to “reflect the compulsory nature of action taken under this part”.  The applicant’s complaint about the application of the provision does not have any prospect of success.  It is statutorily mandated.

18. [18]
    That leaves for determination the issues that the applicant agitates concerning the determination of compensation under subsection (3). We turn then to those remaining complaints.

19. [19]
    There are at least two difficulties in the way of the first two grounds that concern what had occurred over the past 20 years. The first is the non sequitur that a failure to withdraw cattle equates to no loss of production.  The second and more fundamental point is that the question for the Land Court was not what had happened in the past but rather what was likely to happen in the future given the mining intended to be undertaken, the impact on the landowner’s use of his land and the reasonable steps that might be taken to minimise that impact.  Whether the landowner had been over or under compensated in the past was irrelevant to that question.  To complain that the Land Court failed to consider irrelevant matters does not assist the applicant.

20. [20]
    Here there was an express finding made, based on the evidence, that because of the mining activities intended to be pursued, the land in question would need to be fenced off and hence not accessible by the landowner. That indeed was the applicant’s case. It was not in issue. The assessment then depends on the acceptance of the use made of the land and of the agistment and carrying rates adopted. While the applicant may not accept the claimed use or those rates there was no evidence led to the contrary in respect of those matters. Not only that, there was an express acceptance by the Land Court that “the evidence of the use of the relevant area is reliable”, and he based that assessment on his observations of the witnesses.  As he observed in his reasons: “having seen the demeanour of Mr Edgar in the witness box and heard his evidence, and heard the evidence of Mr Hamilton, I accept their evidence as witnesses of truth”.

21. [21]
    This Court’s ability to interfere with such findings is circumscribed. As is apparent from the legislation fresh evidence is not normally to be admitted. No application has been made to admit fresh evidence under s 282(6)(a) and no attempt made to demonstrate any grave injustice if this Court proceeds on the basis of the present evidence.

22. [22]
    Whatever be the true nature of the appeal under the MRA,^[2] where, as here, the appeal is to be decided on the basis of the evidence adduced below, with the Court having no opportunity itself to assess the witnesses, the applicant faces a difficult task in overturning findings of fact.  It may be that the appeal is not in truth a rehearing.  We do not decide the issue.  But assuming in the applicant’s favour that the appeal is in the way of a rehearing it faces significant hurdles.

23. [23]
    The relevant principles were examined by the High Court in Fox v Percy.^[3]  In the joint judgment of Gleeson CJ, Gummow and Kirby JJ in that case, after examining the nature of appeals determined on the basis of the record below and the limitations that necessarily imposes, they said:

14. “[28]
    …However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.

14. [29]
    That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being ‘incontrovertible’, an appellate conclusion may be reached that the decision at trial is ‘glaringly improbable’ or ‘contrary to compelling inferences’ in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses.  In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must ‘not shrink from giving effect to its own conclusion’.”^[4]

24. [24]
    We have examined the record below. There are certainly no “incontrovertible facts or uncontested testimony” that would justify any interference with the crucial findings. Nor were the conclusions reached "glaringly improbable" or "contrary to compelling inferences". Quite to the contrary. Not only was there evidence to support those findings, and evidence which the Land Court member found credible he having had the advantage of having seen and heard Mr Edgar, and heard Mr Henderson, but there was no evidence to put against the findings.

25. [25]
    In those circumstances the applicant faces an insurmountable hurdle on appeal. It is not merely that the applicant faces the legal burden identified in Fox v Percy.  It is that there is nothing to put against the evidence on which the Land Court member based his findings.

26. [26]
    There remains the complaint that the witness Henderson was biased. The submission appears to be that because of that alleged bias his evidence should not have been admitted.

27. [27]
    The bias of a witness is not a reason, without more, to exclude his or her evidence. The presence of bias, or a risk of it, may, of course, influence the Court in its acceptance of the testimony. But that is not the same as excluding the testimony entirely. And, once admitted, it is for the Court to weigh up the evidence and determine whether it is worthy of weight and ought to be accepted.

28. [28]
    Austin J explained the law in the following terms in Australian Securities and Investments Commission v Rich and Another^[5], a decision concerning the receipt of forensic accounting evidence:

14. “[334]
    According to the preponderance of Australian authority, the fact that an expert is aligned to the party engaging him or her, and biased or not independent, is not a bar to the admissibility of the expert's opinion evidence, though it may go to the weight of the evidence^[6]… The reason, as explained by Pagone J in Fagenblat v Feingold Partners Pty Ltd [2001] VSC 454, is that the evidence of the witness can be tested in adversarial proceedings, and so the possibility that the witness may be biased does not infect the impartiality of the Court. The ability of the Court to give biased evidence little or no weight ensures that there is no inherent unfairness to the other party in admission of the evidence. Indeed, the presence of a risk of bias (unconscious or otherwise) is not of itself a reason to exclude evidence of an expert either on grounds of admissibility or in the exercise of discretion…”^[7]

29. [29]
    Hence the evidence was properly admissible.

30. [30]
    The complaint then can only be about its acceptance. Here the applicant faces the considerable difficulty that no allegation of bias was made against the witness at the hearing, nor was his expertise challenged. A court of appeal will not entertain a point not raised below if “evidence could have been given which by any possibility could have prevented the point from succeeding”: Coulton v Holcombe.^[8]  That is so because, as was pointed out in University of Wollongong v Metwally (No 2)^[9]: “It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.”

31. [31]
    The fact that Mr Henderson had conducted some business with the respondent over the years was revealed. But that of itself does not connote bias. Nor does it follow that he lacked the necessary expertise to assist the Land Court.  If the point had been squarely raised in the Court below it is undeniable that evidence might have been able to have been led that could have defeated the point.  That being so this Court should not entertain the argument on appeal.

32. [32]
    Even if that were not so the point has no prospect of success. The contention of the applicant on the appeal must be that this Court should reject the evidence of the witness despite no relevant attack being made on him below, and there being no other evidence to indicate that he was in fact biased or otherwise even incorrect in any evidence that he gave to the Land Court. The principles discussed above and explained in Fox v Percy apply.  There is simply no basis shown on which this Court could come to any different conclusion to that of the Land Court.

33. [33]
    None of the identified grounds of appeal have any prospect of success. In the circumstances it would be futile to allow the application for leave to file the appeal out of time. The application is refused.

McMEEKIN J

PA SMITH

MEMBER OF THE LAND COURT

WL COCHRANE

MEMBER OF THE LAND COURT