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Michelmore v Hail Creek Coal Holdings Pty Limited[2021] QLAC 4

Michelmore v Hail Creek Coal Holdings Pty Limited[2021] QLAC 4

LAND APPEAL COURT OF QUEENSLAND

CITATION:

Michelmore v Hail Creek Coal Holdings Pty Limited & Ors [2021] QLAC 4

PARTIES:

Ian Ferguson Michelmore

(appellant)

v

Hail Creek Coal Holdings Pty Limited, Marubeni Coal Pty Ltd, Nippon Steel Australia Pty Limited, Sumisho Coal Development Queensland Pty Ltd

(respondents)

FILE NOs:

LAC No LAC005-21

LAC No LAC006-21

Land Court No MRA119-20

DIVISION:

Land Appeal Court of Queensland

PROCEEDING:

Appeal from the Land Court of Queensland

ORIGINATING COURT:

Land Court of Queensland

DELIVERED ON:

17 December 2021

DELIVERED AT:

Brisbane

HEARD ON:

5 November 2021

HEARD AT:

Brisbane

THE COURT:

Crow J

WA Isdale, Member of the Land Court

Preston J, Acting Member of the Land Court

ORDERS:

  1. 1.Extend the time for Mr Michelmore to appeal against the decision of the Land Court dated 27 May 2021 to 2 July 2021.
  2. 2.Dismiss the appeal against the decision of the Land Court dated 27 May 2021.
  3. 3.Dismiss the appeal against the decision of the Land Court dated 19 July 2021.
  4. 4.Order the appellant to pay the respondents’ costs of proceedings LAC005-21 and LAC006-21 in this Court.

CATCHWORDS:

APPEAL – application for extension of time to appeal – compensation determination – factors to be considered – reason for delay was lawyer’s mistake – time extended

APPEAL – compensation determination – whether misapplication of Raja’s case – applicability of principle for valuing loss of commercial opportunity – choice of different valuation methods – admissibility and weight of expert evidence – applicability of liberal estimate principle

APPEAL – costs – compensation determination – whether appellable error shown 

 

Land Court Act 2000 s 65

Mineral Resources Act 1989 s 281, s 282

2PL Superannuation Pty Ltd v Skilton [2020] QLAC 5, applied

Anson Holdings Pty Ltd v Wallace (No 2) [2010] 31 QLCR 130; [2010] QLAC 4, applied

Asuzu v Council of the New South Wales Bar Association [2012] NSWCA 406, cited

Avery v No 2 Public Service Board [1973] 2 NZLR 86, applied

Bocardo SA v Star Energy UK Onshore Ltd [2011] 1 AC 380; [2010] UKSC 35, considered

Brewarrana Pty Ltd v Commissioner of Highways (1973) 32 LGRA 170, applied

Brisbane City Council v Valuer-General (1978) 140 CLR 41; [1978] HCA 40, applied

Buttcroft Pty Ltd v Edgar (2011) 32 QLCR 278; [2011] QLAC 7, applied

Collins v Livingstone Shire Council (1972) 127 CLR 477; [1972] HCA 35, cited

Commonwealth of Succession Duties (SA) v Executor Trustee and Agency Co South Australia Ltd (1947) 74 CLR 358; [1947] HCA 10, cited

Crompton v Commissioner of Highways (1973) 32 LGRA 8, applied

Daily Examiner Pty Ltd v Mundine; Brown v Mundine [2012] NSWCA 195, applied

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21, distinguished

Emerald Quarry Industries Pty Ltd v Commissioner of Highways (South Australia) (1979) 142 CLR 351; [1979] HCA 17, applied

Ford v La Forrest [2002] 2 Qd R 44; [2001] QCA 455, applied

Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30, applied

Gatti v Shoosmith [1939] Ch 841, applied

Geita Sebea v Territory of Papua (1941) 67 CLR 544; [1941] HCA 37, considered

Glencore Coal Queensland Pty Ltd v Keys [2014] QLAC 2, applied

Gorczynski v Annandale Services Pty Ltd; Gorczynski v Perera; Gorczynski v Leichhardt Council [2004] NSWCA 71, applied

Hall v Nominal Defendant (1966) 117 CLR 423; [1966] HCA 36, applied

House v The King (1936) 55 CLR 499; [1936] HCA 40, applied

Hughes v National Trustees Executors & Agency Co Australasia Ltd [1978] VR 257, applied

Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27, applied

Jess v Scott (1986) 12 FCR 187; [1986] FCA 473, applied

Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGERA 409, applied

Lonergan & Anor v Friese (No 2) [2020] QLAC 4, cited

Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20, cited

Mallett v McMonagle [1970] AC 166, cited

Martin v The Nominal Defendant [1954] 74 WN (NSW) 121, applied

Melwood Units Pty Ltd v Commissioner of Main Roads [1979] AC 426, applied

Morton Bay Regional Council v Mekpine Pty Ltd (No 2) (2014) 35 QLCR 273; [2014] QLAC 5, applied

Palata Investments v Burt and Sinfield Ltd [1985] 2 All ER 517, applied

Pamalco Pty Ltd v Minister administering the National Parks and Wildlife Act 1974 (No 3) (1991) 71 LGRA 441, applied

Parker v NRMA (1993) 11 ACSR 370, cited

Pfizer Ireland Pharmaceuticals v Samsung Bioepis Au Pty Ltd [2017] FCA 573, applied

Queensland Industrial Minerals Pty Ltd v Younger and Ors; Queensland Industrial Minerals Pty Ltd v Ryan (No 2) (2017) 38 QLRC 210; [2017] QLC 54, applied

R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087, applied

Ratnam v Kumarasamy [1964] 3 All ER 933, applied

Raja Vyricheria Narayana Gajapatiraju v The Revenue Divisional Officer, Vizagapatam, [1939] AC 302, considered

Re Fitzgerald & Anor and S R Struber & Anor [2009] QLC 76, applied

Re Xalco Pty Ltd v Colonial Agricultural Company Ltd [2005] QLRT 124, applied

Redeam Pty Ltd v South Australian Land Commission (1977) 40 LGRA 151, applied

Salter Rex and Co v Ghosh [1971] 2 QB 597, applied

Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4, considered

Sophron v The Nominal Defendant (1957) 96 CLR 469; [1957] HCA 27, applied

Spencer v The Commonwealth (1907) 5 CLR 418; [1907] HCA 82, applied

Stollznow v Calvert [1980] 2 NSWLR 749, applied

Sydney Water Corporation v Caruso (2009) 170 LGERA 298; [2009] NSWCA 391, considered

Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369, applied

Wills v Minerva Coal Pty Ltd (No 2) (1998) 19 QLCR 297; [1998] QLC 149, applied

Zimmerebner v Hawkins & Ors (1999) 20 QLCR 71; [1999] QLC 19, applied

APPEARANCES:

G Thompson QC with E Morzone QC (instructed by Emanate Legal) for the appellant

S Holt QC (instructed by Allens) for the respondent

  1. [1]
    CROW J: I agree with the reasons and orders proposed by Member Preston.
  1. [2]
    MEMBER ISDALE: I agree with the reasons and orders proposed by Member Preston.
  1. [3]
    MEMBER PRESTON J:

Nature and outcomes of application and appeals

  1. [4]
    Mr Michelmore is aggrieved with the Land Court’s determination of compensation under s 281 of the Mineral Resources Act 1989 (Qld) (MR Act), in respect of a mining lease (MLA 700026) over part of his land at Fort Cooper, west of Mackay. The Land Court determined compensation in the sum of $530,530 inclusive of the 10% statutory uplift under s 281(4)(e) of the MR Act. Mr Michelmore considers this sum to be insufficient compensation.
  1. [5]
    Mr Michelmore has a right of appeal under s 282(1) of the MR Act against the Land Court’s compensation determination under s 281 of the MR Act. The time period within which a party is required to appeal is within 20 business days of the date of 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: s 282(1) of the MR Act.
  1. [6]
    The date of the Land Court’s determination was 27 May 2021, so that the period of 20 business days expired on 24 June 2021. Mr Michelmore did not appeal within this period. Instead, Mr Michelmore has applied, by General Application filed on 2 July 2021, for the Land Appeal Court to extend the period of 20 business days within which he may appeal the compensation determination of the Land Court. No date was specified in Mr Michelmore’s application but it would need to be until at least 2 July 2021, being the date on which application was made for leave to extend the time to appeal.
  1. [7]
    Mr Michelmore’s application for extension of time to appeal was opposed by Hail Creek Coal Holdings Pty Ltd (Hail Creek), the holder of the mining lease who is required to pay compensation to Mr Michelmore.
  1. [8]
    Mr Michelmore’s application for extension of time to appeal included a draft Notice of Appeal, which would constitute the appeal should time to appeal be extended. This draft Notice of Appeal raised eight grounds of appeal.
  1. [9]
    The application for extension of time to appeal was listed to be heard concurrently with the proposed appeal, if the time period for appeal were to be extended. This had the advantage of allowing this Court to evaluate the strength of the proposed appeal. This is one of the factors that is relevant to be taken into account in considering whether it is appropriate in the particular circumstances to extend the time to appeal.
  1. [10]
    Consequent on the Land Court’s determination of compensation on 27 May 2021, the Land Court determined on 19 July 2021, under s 281(7) of the MR Act, that Mr Michelmore pay Hail Creek’s costs of the proceedings, relating to certain specified aspects. Mr Michelmore, by Notice of Appeal filed on 30 July 2021, appealed against the Land Court’s determination of costs, also under s 282(1) of the MR Act. This appeal against the costs determination was within the 20 business day period for appeal. The Notice of Appeal raised 13 grounds of appeal. This appeal against the costs determination was also listed to be heard at the same time as the application to extend time to appeal and the appeal against the compensation determination.
  1. [11]
    I consider that, in the particular circumstances of this case, it is appropriate to extend the time within which Mr Michelmore can appeal beyond the 20 business days provided for by s 282(1) of the MR Act. Factors favouring an extension of time to appeal are the shortness of the delay, the adequacy of the explanation for the delay, the injustice to Mr Michelmore if time to appeal were not to be extended, and the lack of material prejudice to Hail Creek if time to appeal were to be extended. A factor tending against granting an extension is the poor prospects of success of the appeal, however, it is sufficient that the appeal can be said to be fairly arguable.
  1. [12]
    Although I consider time to appeal should be extended, the appeal against the compensation determination should nevertheless be dismissed. Mr Michelmore has not established appellable error.
  1. [13]
    I consider that Mr Michelmore’s appeal against the costs determination should be dismissed. Although the grounds of appeal against the costs determination are framed so as to stand independently of any appeal against the compensation determination, in reality, their salience and success depend upon Mr Michelmore being successful in his appeal against the compensation determination. The fate of the appeal against the costs determination is therefore entwined with the fate of the appeal against the compensation determination. Mr Michelmore has not established separate error sufficient for this Court to disturb a decision on costs. Mr Michelmore should also be ordered to pay Hail Creek’s costs of the application to extend the time to appeal, and the appeal, against the compensation determination and of the appeal against the costs determination.

The compensation determination

  1. [14]
    Hail Creek lodged an application for a mining lease over that part of Mr Michelmore’s land on which is constructed the accommodation village that houses workers at the Hail Creek Mine (an area of 138 ha). The proposed term of the mining lease is 20 years. Under s 279(1)(a) of the MR Act, the mining lease could not be granted unless “compensation has been determined (whether by agreement or by determination of the Land Court) between the applicant and each person who is the owner of land the surface of which is the subject of the application and any surface access to the mining lease land.” Mr Michelmore and Hail Creek were unable to reach agreement on the compensation payable.
  1. [15]
    The Chief Executive of the Department of Resources referred the proceeding to the Land Court for it to determine the amount of compensation. The Land Court was required to settle the amount of compensation to which Mr Michelmore is entitled as compensation in accordance with s 281(3) of the MR Act. In the case of compensation referred to in s 279 of the MR Act, Mr Michelmore is entitled to compensation for:
  1. (i)
    deprivation of possession of the surface of land of the owner;
  2. (ii)
    diminution of the value of the land of the owner or any improvements thereon;
  3. (iii)
    diminution of the use made or which may be made of the land of the owner or any improvements thereon;
  4. (iv)
    severance of any part of the land from other parts thereof or from other land of the owner;
  5. (v)
    any surface rights of access;
  6. (vi)
    all loss or expense that arises;

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

  1. [16]
    Although s 281(3)(a) refers to multiple matters or “compensations concepts” that are to be taken into account in determining the amount of compensation payable, this assessment is not to be undertaken by accumulating figures arrived at following separate and discrete treatment of each matter: Wills v Minerva Coal Pty Ltd (No 2) (1998) 19 QLCR 297 at 315, 320; Zimmerebner v Hawkins & Ors (1999) 20 QLCR 71 at 77, 87; Re Fitzgerald & Anor and S R Struber & Anor [2009] QLC 76 at [11]. It was common ground that there was one issue in determining the amount of compensation – what is the value to be given to the surface of the land? (at [4] of the judgment). The parties agreed that as the proposed term of the mining lease was 20 years, the grant of a mining lease may be likened to a compulsory acquisition of land for a limited period. In this circumstance, the compensation payable should be determined using the principles and practices of valuation that are applicable to assessing land that has been compulsorily acquired: see SG and PM Smith v RA Cameron (1986) 11 QLCR 64 at 73–74; Wills v Minerva Coal Pty Ltd (No 2) at 313; Zimmerebner v Hawkins & Ors at 77, 88.
  1. [17]
    The parties agreed that if the highest and best use of the land were to be for grazing, the value of the land is $189,475 (the pastoral value of the land) (at [5] of the judgment). However, the parties agreed that in fact the highest and best use of the land is for an accommodation village (at [5] of the judgment).
  1. [18]
    The parties disagreed as to the valuation method to be used to calculate the value of the land for an accommodation village. Mr Michelmore’s valuer, Mr Caleo, used a net present value (NPV) approach, which involved calculating the present value of the potential rent that would be paid over the 20-year term of the lease (at [42] of the judgment). Hail Creek’s valuer, Mr Cavanagh, used what he termed a direct comparison method, which involved deriving a premium from sales of other land that reflected the value over and above the value for the alternative use (at [47] of the judgment). This difference in valuation method led to widely different amounts of compensation, Mr Caleo valuing the land at around $7,000,000 and Mr Cavanagh valuing the land at $530,530 (at [6] of the judgment). The primary member found that the NPV approach suffered from a number of problems, making it difficult to apply to determine the value of the subject land (at [43], [44] of the judgment). The primary member found the direct comparison method had fewer problems and was the appropriate methodology to apply (at [46] and [61] of the judgment). Using this method, the primary member assessed compensation in the amount of $482,300 (at [62] of the judgment). After applying the statutory 10% uplift, the amount of compensation became $530,530 (at [66] of the judgment).

The application for extension of time to appeal the compensation determination

The factors to be considered

  1. [19]
    Section 282(1) of the MR Act confers a discretion on the Land Appeal Court to extend the time for institution of an appeal against a determination of the Land Court made under s 281 of the MR Act beyond the 20 business days provided for by s 282(1). The grant of an extension of time under s 282(1) is not automatic. The time period of 20 business days for institution of an appeal fixed by the subsection must prima facie be obeyed. One purpose of fixing a time period for appeal under the subsection is “to achieve a time table for the conduct of litigation in order to achieve finality of judicial determination. A successful litigant has an interest in knowing that a claim against him has been determined and that he is no longer ‘at risk’”: Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 263. When the time fixed by the subsection for appealing has expired, “the litigation is at an end; the successful party is entitled to the benefit of the judgment in his or her favour”: Gallo v Dawson (1990) 93 ALR 479 at 481; [1990] HCA 30.
  1. [20]
    Although the subsection, by fixing the time within which an appeal is to be instituted, seeks to achieve finality of judicial determinations, it also recognises that such fixing of a time to appeal might work injustice in the particular circumstances. To overcome this potential injustice, the subsection gives the Land Appeal Court a discretion to extend the time to appeal beyond the time fixed by the subsection. As McHugh J observed in Gallo v Dawson at 480:

“The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v. National Trustees Executors and Agency Co. of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant.”

  1. [21]
    In determining whether the applicant will suffer injustice if time to appeal were not to be extended, it is relevant to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application for extension of time: Gallo v Dawson at 480; Re Xalco Pty Ltd and Colonial Agricultural Company Ltd [2005] QLRT 124 at [6].
  1. [22]
    In order to justify the Court extending the time to appeal, there must be some material on which the Court can justifiably exercise its discretion: Ratnam v Kumarasamy [1964] 3 All ER 933 at 935; Gallo v Dawson at 481. In determining whether strict compliance with the time for appeal fixed by the subsection will work an injustice, the Court may have regard to a number of factors, including the length of delay, the reason for the delay, the prospects of success of any appeal, and extent of prejudice to the respondent: Palata Investments v Burt and Sinfield Ltd [1985] 2 All ER 517 at 520; Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 at [5]–[6]; Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [55]; Buttcroft Pty Ltd v Edgar (2011) 32 QLCR 278; [2011] QLAC 7 at [3]. Elaborating on these four factors:
  1. (a)
    The length of the delay: By itself, a short delay, and hence a short period for which an extension is time is needed, might more readily be excused and for less weighty reasons than a long delay: Martin v The Nominal Defendant (1954) 74 WN (NSW) 121 at 124; Jess v Scott (1986) 70 ALR 185 at 193.
  2. (b)
    The reason for the delay: Re Xalco Pty Ltd and Colonial Agricultural Company Ltd at [6]; Buttcroft Pty Ltd v Edgar at [3]. The length of the delay will influence what is required to explain the delay. The longer the period of delay, the more persuasive the explanation needs to be: Jess v Scott at 193; Gallo v Dawson at 481; Pfizer Ireland Pharmaceuticals v Samsung Bioepis Au Pty Ltd [2017] FCA 573 at [10]. The cause of the delay will also be important. The fact that the reason for the delay was a mistake or an omission of the applicant’s lawyers might, but need not necessarily, amount to sufficient justification to grant an extension of time to appeal: Gatti v Shoosmith [1939] Ch 841 at 845; Salter Rex and Co v Ghosh [1971] 2 QB 597 at 601; R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091; Palata Investments v Burt and Sinfield Ltd at 521; Avery v No 2 Public Service Board [1973] 2 NZLR 86 at 91, 92; Jess v Scott at 186–194. However, the fact that the reason of the delay is the applicant’s lawyer’s mistake or omission, of itself, “cannot constitute an impenetrable bar to the making of an order refusing an application for an extension of time”: Daily Examiner Pty Ltd v Mundine; Brown v Mundine [2012] NSWCA 195 at [159]. There is no fixed general rule that when the failure to file an appeal within the time period fixed by the statutory provision for appeal (here, in s 282(1) of the MR Act) is attributable to the fault of the applicant’s lawyers, that necessarily amounts to sufficient justification for granting an application to extend the time to appeal to be granted: Martin v The Nominal Defendant at 124–125; Sophron v  The Nominal Defendant (1957) 96 CLR 469 at 474; [1957] HCA 27; Stollznow v Calvert [1980] 2 NSWLR 749 at 752-753.
  3. (c)
    The prejudice suffered by the respondent: Just as the consequences for the applicant if time to appeal were not be extended need to be considered, so too do the consequences for the respondent if time to appeal were to be extended: Gallo v Dawson at 480; Buttcroft Pty Ltd v Edgar at [3]; Re Xalco Pty Ltd and Colonial Agricultural Company Ltd at [6];
  4. (d)
    The prospects of success of any appeal: Gallo v Dawson at 480; Buttcroft Pty Ltd v Edgar at [3]; 2PL Superannuation Pty Ltd v Skilton [2020] QLAC 5 at [61]–[63] and see also Ford v La Forrest [2002] 2 Qd R 44 [2002] QCA 455 at [42]. It will generally be sufficient for the applicant to demonstrate a fairly arguable case without a detailed evaluation of the prospects of success of the proposed appeal: Jackamarra v Krakouer at [9], [66] (principle 4); Tomko v Palasty (No 2) at [58]. However, the strength of the prospects of success that may be needed to justify an extension of time to appeal will depend on the other factors favouring or disfavouring an extension of time to appeal. For example, if there is no explanation, or no satisfactory explanation, for the delay and there will be material prejudice to the respondent if time were to be extended, the applicant may need to show that the proposed appeal has more substantial merit that merely being fairly arguable: Tomko v Palasty (No 2) at [14]; Asuzu v Council of the New South Wales Bar Association [2012] NSWCA 406 at [42]. Moreover, where the application to extend time to appeal is heard concurrently with the proposed appeal, the Court will be in a good position to evaluate the prospects of success of any appeal.
  1. [23]
    I will now evaluate the application to extend time to appeal having regard to these factors.

The length of delay

  1. [24]
    Mr Michelmore delayed making application for leave to extend the time to appeal until 2 July 2021, six business days after the 20 business day period provided for by s 282(1) of the MR Act had expired on 24 June 2021.
  1. [25]
    Mr Michelmore initially submitted, although he later did so without conviction, that the delay might only be three business days given that this period of 24 June 2021 to 2 July 2021 was within the lockdown that the Queensland Government had imposed for the COVID-19 pandemic. During this time the Land Court Registry was physically closed for three business days, however, documents were able to be lodged electronically. Hence, there was nothing preventing Mr Michelmore’s solicitor from lodging the appeal within the 20 business day period electronically rather than physically at the Land Court Registry. Moreover, the physical closure of the Registry was not the reason for Mr Michelmore’s appeal not being lodged within time. Indeed, Mr Michelmore’s solicitor did lodge the appeal during this lockdown period, on 2 July 2021, so that the lockdown did not in fact prevent the appeal being lodged. The delay is, therefore, six business days, a relatively short period.

The reason for the delay

  1. [26]
    Mr Michelmore’s explanation for the delay was that his solicitor mistakenly believed the appeal period to be 42 days, as provided for in s 65 of the Land Court Act 2000 (Qld) (LC Act), rather than 20 business days, as provided for in s 282(1) in the MR Act. Apart from baldly stating in an affidavit that he had this mistaken belief, Mr Michelmore’s solicitor did not explain the source of his mistake, or the steps, if any, he took to check the relevant legislation or the Land Court’s website to ascertain what was the applicable time period within which the appeal against the Land Court’s compensation determination under s 281 of the MR Act needed to be lodged. The solicitor did not explain why, as an experienced legal practitioner who practises in the Land Court, he did not refer to s 282 of the MR Act, being the statutory provision conferring the right of appeal and specifying the time and manner within which an appeal must be brought, or to the Land Court’s website specifying the appeal period for an appeal against a compensation determination. Had the solicitor examined either the MR Act or the Land Court’s website, he would have ascertained that the appeal period is 20 business days.
  1. [27]
    All appeals are creatures of statute. Any right to appeal, and the time and manner in which an appeal is to be lodged, are to be ascertained by reference to the statute conferring the right to appeal. Here, the decision against which an appeal is sought to be made is the determination of the Land Court under s 281 of the MR Act. The very next section in that Act, s 282, provides the right to appeal against a determination made under s 281 and specifies the time period within which and the manner by which an appeal under the provision is to be brought: s 282(1) and (2) of the MR Act. The time period is 20 business days or such further period as the Land Appeal Court considers appropriate in the particular circumstances.
  1. [28]
    An appeal against a determination of the Land Court under s 281 of the MR Act is not provided for by s 65(1) of the LC Act. Section 65(1) does provide that a party intending to appeal against a decision of the Land Court must, within 42 days after the Court’s decision is given to the party, serve notice of appeal against the decision on all other parties to the proceedings and the Registrar of the Land Appeal Court but that is not the source of the right to appeal against a determination of the Land Court made under s 281 of the MR Act. That right of appeal is given by s 282(1) of the MR Act.
  1. [29]
    Accordingly, had Mr Michelmore’s solicitor examined the statutory provision conferring the right of Mr Michelmore to appeal against the Land Court’s determination of compensation under s 281 of the MR Act, namely s 282(1) of the MR Act, he would have seen that the applicable appeal period is 20 business days. Equally, if the solicitor had examined the Land Court’s website he would have been informed expressly that the applicable appeal period for an appeal against a compensation determination is 20 business days, not 42 business days for other appeals to the Land Appeal Court. The Land Court’s website states under the heading “Appeal period”:

“You must file and serve your appeal to the Land Appeal Court within 42 days after the Land Court makes the order with the decision you’re appealing.

Note: The legislation applying to your matter may specify a different time limit. For example, under the Mineral Resources Act 1989, the time limit for filing and serving an appeal against a compensation determination for mining activities is 20 business days. Check the relevant legislation carefully.”

  1. [30]
    In these circumstances, the solicitor’s explanation for the delay is not reasonable. As was observed in 2PL Superannuation Pty Ltd v Skilton at [30], it is not a sufficient explanation for a delay to establish “the subjective holding of an erroneous belief”, as the Court “must look at the circumstances objectively”. In this case, the belief that Mr Michelmore’s solicitor held about the applicable appeal period “must be looked at objectively to see how reasonable such a belief would be”. Viewed objectively, a solicitor in the position of Mr Michelmore’s solicitor could be expected to apply reasonable care, skill and attention to ascertaining Mr Michelmore’s right to appeal against the Land Court’s compensation determination under s 281 of the MR Act and the time and manner within which such an appeal needs to be brought. This would require examining the applicable legislation conferring the right of appeal and specifying the time and manner in which the appeal is to be made, namely s 282 of the MR Act. For confirmation, a competent solicitor would also check the Land Court’s website on the appeal period. Doing either or both of these, could not have led the solicitor to form and maintain the belief he said he did hold as to the appeal period being 42 days rather than 20 business days. The explanation for the delay is therefore not objectively reasonable.
  1. [31]
    Nevertheless, the cause of the delay is the conduct of Mr Michelmore’s solicitor, not Mr Michelmore. Mr Michelmore was entitled to rely on his solicitor to ascertain and take the necessary steps in the time period for appealing the compensation determination. The solicitor’s mistake as to the time period for appeal is not one with which Mr Michelmore should be saddled: Hall v Nominal Defendant (1966) 117 CLR 423 at 435; [1966] HCA 36; Jackamarra v Krakouer at [66] (principle 7).

The prejudice suffered by Hail Creek

  1. [32]
    Mr Michelmore asserted that Hail Creek will suffer no prejudice if an extension of time to appeal were to be granted. Even if the delay, and hence the period for which an extension of time to appeal is needed, were to be six business days, that time period would cause no prejudice to Hail Creek.
  1. [33]
    Mr Michelmore conceded that any appeal against the Land Court’s compensation determination will hold up the grant of the mining lease to Hail Creek, as the mining lease cannot be granted until compensation is determined (s 279(1)(a) of the MR Act), which includes determining any appeal against the compensation determination (s 279(2)(b) of the MR Act). Nevertheless, Mr Michelmore argued, the accommodation village in respect of which the mining lease is to be granted is already constructed and in operation. It is the subject of an existing lease, Registered Lease 702889733, which commenced on 1 July 1998 and runs until 1 July 2023. Hail Creek is currently in possession and is entitled to remain in possession until the expiry of the lease. Any appeal against the Land Court’s compensation determination will be disposed of, and thereafter the mining lease can be granted, before the expiry of the current lease on 1 July 2023. Thus, extending the time for Mr Michelmore to appeal the Land Court’s compensation determination will not cause prejudice to Hail Creek.
  1. [34]
    Hail Creek contested that it will not suffer prejudice if the time for Mr Michelmore to appeal is extended. The fact that the mining lease in respect of the accommodation village cannot be granted until compensation is determined, including determination of any appeal against the Land Court’s determination, creates operational uncertainty for Hail Creek. It needs to plan for the contingency that the mining lease might not be granted by the date of expiry of the current lease. The accommodation village houses the substantial workforce needed to operate Hail Creek’s nearby mine. If Hail Creek cannot secure the right to occupy and use the accommodation village on Mr Michelmore’s land, it will need to establish alternative accommodation for its workforce elsewhere. There is a lead time in doing so, including in finding and leasing alternative land, obtaining all necessary approvals to construct and use the accommodation facilities, and constructing the accommodation facilities so that they are ready to be used from the first day after the expiry of the current lease.
  1. [35]
    Hail Creek submitted that, in these circumstances, the late filing of the appeal and the consequential delay to the final determination of compensation does result in prejudice to Hail Creek, as it delays the grant of the mining lease and Hail Creek’s ability to secure operational certainty for the accommodation of its workforce needed to run its mine.
  1. [36]
    Hail Creek also submitted that Mr Michelmore’s delay in filing an appeal against the Land Court’s compensation determination needs to be viewed in the context of the history of the proceedings and the conduct of the parties, matters that the courts have recognised are relevant in evaluating the competing prejudices to the parties: see Gallo v Dawson at 480 and Re Xalco Pty Ltd and Colonial Agricultural Company Ltd at [6]. Hail Creek set out a detailed chronology in its written submissions from the time of it making application for the mining lease on 4 January 2018, some three and a half years ago, to the end of the hearing before the Land Court in April this year. This chronology showed that Mr Michelmore, in objecting to the grant of the mining lease and in conducting the proceedings before the Land Court, has time and again failed to adhere to statutory requirements and Court orders, thereby delaying the resolution of the proceedings and the grant of the mining lease. Mr Michelmore’s failure to file an appeal against the Land Court’s compensation determination within time compounded the extensive delay that has already occurred in the timely conduct and resolution of the proceedings.
  1. [37]
    I find that Mr Michelmore’s delay in filing the appeal within the time specified by s 282(1) of the MR Act for an appeal against the Land Court’s compensation determination under s 281, will not cause material prejudice to Hail Creek. It may be accepted that in evaluating the consequences for the parties if time to appeal were to be extended it is relevant to have regard to the history of the proceedings and the conduct of the parties. But even doing so does not disturb the fact that the resolution of the proposed appeal against the compensation determination can be, and will be, achieved well prior to the expiry of the current lease on 1 July 2023. The application for an extension of time to appeal has been heard concurrently with any proposed appeal, so that this Court’s decision will resolve both the application and the appeal. In these circumstances, the prejudice that Hail Creek fears it will suffer will not transpire. 

The prospects of success

  1. [38]
    The test for assessing the prospects of success of a proposed appeal is undemanding; it is ordinarily sufficient for the applicant to demonstrate a fairly arguable case without a detailed evaluation of the prospects of success of the proposed appeal: Jackamarra v Krakouer at [9], and [66] (principle 4), Tomko v Palasty (No 2) at [58]. Mr Michelmore has met this test – the proposed appeal is fairly arguable. This is sufficient to justify extending the time for Mr Michelmore to bring the appeal. The fact that, on a full evaluation of the appeal, I am of the view that the appeal should be dismissed, for the reasons I give below, does not gainsay that the appeal is fairly arguable.

Time to appeal should be extended

  1. [39]
    Having regard to these factors, I consider it is appropriate in the particular circumstances to extend the time within which Mr Michelmore can appeal against the compensation determination on the grounds raised in the draft notice of appeal.

The appeal against the compensation determination

  1. [40]
    Mr Michelmore’s draft notice of appeal raises eight grounds of appeal:
  1. (a)
    Grounds 1 and 2: misapplication of the Raja principle (referring to the Privy Council’s decision in Raja Vyricheria Narayana Gajapatiraju v The Revenue Divisional Officer, Vizagapatam, [1939] AC 302 (Raja)) (the Raja grounds);
  2. (b)
    Ground 3: failure to apply the principles for the valuing of a commercial opportunity in Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4 (Sellars) (the Sellars grounds);
  3. (c)
    Grounds 4 and 5: acceptance of the direct comparison method of valuation of Hail Creek’s valuer (the direct comparison method grounds);
  4. (d)
    Ground 6: failure to accept the net present value (NPV) method of Mr Michelmore’s valuer (the NPV ground);
  5. (e)
    Ground 7: failure to find that the evidence of Hail Creek’s valuer did not meet the criteria for admissibility of expert evidence in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 (Dasreef) (the Dasreef ground); and
  6. (f)
    Ground 8: failure to apply the principle in Commonwealth of Succession Duties (SA) v Executor Trustee and Agency Co South Australia Ltd (1947) 74 CLR 358; [1947] HCA 10 that doubts be resolved in favour of a more liberal estimate favouring the claimant, Mr Michelmore (the liberal estimate ground).
  1. [41]
    I will deal with each of these sets of grounds.

The Raja grounds

  1. [42]
    Mr Michelmore contended that the part of his land that is the subject of the mining lease, and on which the accommodation village has been built, should be valued on the basis that, absent the mining lease, a hypothetical purchaser would pay a price for the land that reflects the high likelihood, almost certainty, that Hail Creek would have renegotiated the current lease at the end of its term in July 2023. Any such renegotiation of the lease would have been a market rental for three reasons. First, cl 7.3 of the lease requires Hail Creek to remove any buildings or structures erected on the land at the expiry of the lease, and to repair and make good the land. Second, if Hail Creek did not renegotiate the lease, it would suffer considerable loss and cost in removing the improvements at the expiration of the current lease, repairing the land, obtaining development approval (DA) for an alternative site, and re-establishing the improvements and infrastructure at the alternative site. Third, the existing accommodation village is an essential component of the Hail Creek mine and the mining lease is required to provide ongoing security of the infrastructure of the accommodation village.
  1. [43]
    In advancing this argument, Mr Michelmore relied on a principle, said to be derived from the Privy Council’s decision in Raja, in support of the proposition that the value of the land should not be reduced because Hail Creek might be the only potential purchaser. Mr Michelmore submitted that in Raja, the Privy Council allowed an increased value for land that had been compulsorily acquired where that land was worth considerably less unless used for the purpose for which it was being compulsorily acquired. The potentiality in the acquired land, which can be taken to fruition only by the acquiring authority, is to be considered in valuing the land for the purposes of assessing compensation. If there is an attribute of the land which would be of value to the acquiring authority only, then the value of that attribute must form part of the market value: Raja at 316–317.
  1. [44]
    Mr Michelmore contended that the Land Court misunderstood how he relied on the Raja principle. The primary member dealt with the Raja point in paragraphs [37] and [65] of the judgment:

“[37]  Counsel for Mr Michelmore submit that the appropriate approach to valuation is that expressed in Vyicherla Naryana Gajapatirajup Bahadur Garu v Revenue Divisional Officer, Vizagapatam (“Raja”); that the potentiality in the acquired land, which can be taken to fruition only by the acquiring authority, is to be considered in valuing that land for the purposes of assessing compensation. Further, if there is an attribute of that land which is only of value to the acquirer, then the value of that attribute must form part of the market value. Counsel submit that Raja applies because the value of the subject land is enhanced by its proximity to Hail Creek Mine and the fact it has a DA for the accommodation village. The proposition is unexceptional. Clearly, the subject land must be valued having regard to its location and the DA. I am not persuaded that Raja advances Mr Michelmore’s case beyond that general proposition.

[65]  It is a mistake to value the land, and assess compensation, through the lens that Hail Creek is compelled to acquire this land because the costs of relocation mean it has no other option. It is a mistake to assume that Hail Creek would buy the land or enter into a commercial lease at whatever price Mr Michelmore might nominate. To do so ignores the Spencer requirement that the purchaser is not so anxious to buy that he would overlook any ordinary business consideration. That Hail Creek might be the only purchaser does not justify an extortionate valuation. Perhaps Mr Michelmore once may have been able to persuade the mine owner/operator to pay compensation over the odds for the grant of the ML, but that is not a matter that should factor in my decision.”

  1. [45]
    Mr Michelmore submitted that these findings missed the critical point that he was making about the Raja principle. The critical point was that, absent the grant of the mining lease, the likelihood was high or almost certain that Hail Creek would have renegotiated an extension of the existing lease for another 20 years and would not have removed the accommodation village from the land or sought to find alternative accommodation for the mine’s workforce.
  1. [46]
    Accordingly, Mr Michelmore submitted, the compensation payable should have been assessed, not just on the basis of its “proximity to the Hail Creek mine and the fact that it has a development approval” (as the primary member found at [37] of the judgment), but rather on the basis of it continuing to be used by Hail Creek as an accommodation village. Mr Michelmore submitted that the market value of the subject land as an accommodation village should not have been discounted for the risk that either:
  1. (a)
    it would not be so used, whether because of “the possibility of Hillalong using the camp as anything more than a mere possibility” (at [14] of the judgment) or that “there is little, if any demand for accommodation that is not attached to the Hail Creek mine” (at [14] of the judgment) or
  2. (b)
    “there would need to be changes to the existing DA to permit a camp to be used by workers that are not employed by Hail Creek” (at [18] of the judgment).
  1. [47]
    Mr Michelmore submitted that the primary member, in discounting the market value of the subject land for these risks, failed to apply the Raja principle. Mr Michelmore submitted that this discounting of the value of the subject land also failed to apply the approach to compensation suggested in Geita Sebea v Territory of Papua (1941) 67 CLR 544; [1941] HCA 37 (Geita Sebea) and Collins v Livingstone Shire Council (1972) 127 CLR 477; [1972] HCA 35.
  1. [48]
    In Geita Sebea, the Crown compulsorily acquired land on which it had constructed an aerodrome. The Crown might have been the only possible purchaser, but as pointed out in Raja’s case, it was necessary to assume a sale at a price that reflected the value of the land’s potentiality. In Geita Sebea, the land’s potentialities included the already constructed aerodrome. Williams J at 558 observed:

“It is true that the Crown was free to acquire other suitable lands of the same dimensions and construct an aerodrome there, but to do so would require considerable outlay, so that the resumed lands had the potentiality that, having been improved to the extent already mentioned, the Crown would be willing to acquire them for their agricultural value plus the value of the expenditure already made rather than to have to purchase other lands at their agricultural value and then have the trouble and expense of improving them to the same extent.Assuming, therefore, that the appellants were willing vendors and the Crown was a willing purchaser the price would be determined having regard to the fact that the vendors would know that the Crown would pay this amount but no more, and the Crown would know that the vendors could reasonably expect this price.”

  1. [49]
    Williams J continued at 559:

“If, as appears to be probable, the buildings can be removed, their only materiality in the assessment of the compensation would be that it would benefit the Crown to pay something more for the resumed land rather than to have to go to the expense of removing and re-erecting them elsewhere.”

  1. [50]
    Mr Michelmore submitted that, similarly in the present case, compensation should be assessed on the basis that it would benefit Hail Creek to pay “something more” for the subject land rather than to have to go to the expense of removing and re-erecting elsewhere the accommodation village currently on the subject land. Mr Michelmore submitted that the valuation of the subject land by Hail Creek’s valuer, Mr Cavanagh, which was accepted by the primary member, failed to include a sufficient premium that reflected this fact that Hail Creek would pay “something more” for the subject land.
  1. [51]
    Mr Michelmore submitted that the primary member’s failure properly to apply the Raja principle is illustrated by the primary member:
  1. (a)
    finding that Raja did not advance Mr Michelmore’s case beyond the general proposition that the subject land must be valued having regard to its location and the development approval (at [37] of the judgment);
  2. (b)
    finding that the Raja principle ignores the requirement in Spencer v The Commonwealth (1907) 5 CLR 418; [1907] HCA 82 that the purchaser is not so anxious to buy that he or she would overlook any ordinary business consideration (at [65] of the judgment); and
  3. (c)
    failing to find the land should be valued, and thus compensation assessed, upon the basis that, absent the mining lease, a hypothetical purchaser would not have discounted the purchase price for any or any significant risk that Hail Creek would not have renewed the lease.
  1. [52]
    Hail Creek disputed that the primary member had misunderstood or misapplied the Raja principle or the approach suggested in Geita Sebea to assessing compensation. Raja is authority for the proposition that, in assessing market value, regard is to be had not merely to the use the land is being put at the time but also to the uses to which the land is reasonably capable of being put in the future, being the potentialities of the land: Raja at 313. That is so even if the owner could not exploit a potentiality of the land and the only person that could do so is the acquiring authority: Raja at 314. The only possible purchaser of a potentiality is usually quite willing to pay for it: Raja at 317. Hence, even where the only possible purchaser of the land’s potentiality is the acquiring authority, the court in awarding compensation must ascertain the price that would be paid by a willing purchaser to a willing vendor of the land with its potentiality in the same way as it would ascertain the price in the case where there are several possible purchasers: Raja at 323.
  1. [53]
    However, this proposition in Raja has no direct application to the present case, which was not concerned with the potentialities of the subject land. It was common ground between the parties that the highest and best use of the subject land is as an accommodation village. The land has approval for this use and is being used for this purpose. The primary member so found. There was no need to consider the potentialities of the land to be used for any other purpose. This was not a case, such as occurred in Raja or Geita Sebea, where the land had a potentiality to be used for a purpose and the only possible purchaser of that potentiality was the acquiring authority.
  1. [54]
    Hail Creek submitted that Raja is also authority for the proposition that, in assessing the market value, the disinclination of the vendor to part with the land and the urgent necessity of a purchaser to buy the land must both be disregarded. Neither must be considered as acting under compulsion. This reinforces that the market value of the subject land is not to be estimated as its value to the purchaser: Raja at 315, 316. This proposition was accepted by the primary member, as her comments in [65] of the judgment reveal.
  1. [55]
    Raja does not, however, dictate how, in any given case, the potentiality of the land is to be assessed quantitatively, even where there is only one likely purchaser of the land. Raja does suggest that the seller would seek and the buyer would be willing to pay something more for the potentiality than the value of the existing use of the land, but it does not say how much more.
  1. [56]
    Hail Creek noted that in Bocardo SA v Star Energy UK Onshore Ltd [2011] 1 AC 380; [2010] UKSC 35, Lord Brown (with whom Lord Walker at [46] and Lord Collins at [94] agreed) pointed out at [85] that Raja’s case “affords no assistance at all as to how much the acquiring authority should be regarded as willing to pay for the particular value of the land to him” and that “compensation was plainly not to be assessed on the basis of the owner ‘obtaining for himself a share in [the] value [of the land to the promoter for his scheme].” Lord Brown at [86] suggested that in practice “a more or less token increase of what otherwise would be assessed as the land’s market value tends to be made in all deference to” Raja’s case.
  1. [57]
    In the present case, Hail Creek’s valuer, Mr Cavanagh, opined, and the primary member accepted, that the value of the subject land as an accommodation village would be two and a half times the pastoral value of the land. The application of this multiple of 2.5 to the pastoral value of the land is consistent with:
  1. (a)
    the only realistic buyer of the land as an accommodation village being Hail Creek;
  2. (b)
    the notion that Hail Creek would pay something more than pastoral value, but given the location and features of the land and the absence of any real competition could not be expected to pay significantly more. Hail Creek cannot be treated as acting under compulsion. The evidence supported that there are other potential options and advantages to a relocation of the accommodation village on the land; and
  3. (c)
    the notion that Mr Michelmore would require something more than pastoral value, but given the location and features of the land and the absence of any real competition, could not be expected to be paid much more. There is also a substantial risk to Mr Michelmore that if Hail Creek did pursue other options or if it did not take up a 20 year lease, Mr Michelmore would be left with something akin to the pastoral value of the land.
  1. [58]
    Accordingly, Hail Creek submitted that the result in this case, with compensation being assessed at 2.5 times the pastoral value of the land, is consistent with Raja. It is also consistent with the approach to compensation suggested in Geita Sebea. The primary member did not, therefore, err in law or principle in her understanding or application of either Raja or Geita Sebea.
  1. [59]
    The question of the market value of the land was a factual one to be resolved by the primary member on the valuation evidence before her. There was no error in the primary member preferring the evidence of one valuer, Mr Cavanagh, over the evidence of the other valuer, Mr Caleo.
  1. [60]
    I find that Mr Michelmore has not established that the primary member misunderstood or misapplied any principle established in Raja or the suggested approach to compensation in Geita Sebea. I accept and adopt Hail Creek’s submissions that the primary member did not err in any of the ways contended for by Mr Michelmore. In particular, the primary member’s findings in [37] and [65], impugned by Mr Michelmore, do not reveal that the primary member misunderstood or misapplied the Raja principle or the approach to compensation suggested in Geita Sebea.
  1. [61]
    In [37], the primary member recorded Mr Michelmore’s submission that Raja’s case required compensation to be assessed having regard to “the potentiality in the acquired land, which can be taken to fruition only by the acquiring authority” and that “if there is an attribute of that land that is only of value to the acquirer, then the value of that attribute must form part of the market value.” This is the same proposition advanced by Mr Michelmore on this appeal. The primary member noted that the “potentiality” or “attribute” of value to the acquirer, here Hail Creek, is the accommodation village on the subject land. There is a DA for this use, the accommodation village has been constructed in accordance with the DA, and the accommodation village is currently being used for this purpose. The accommodation village is of particular value to Hail Creek because of its proximity to the Hail Creek mine. The primary member so found, noting Mr Michelmore’s submission that Raja applies because the value of the subject land is enhanced by its proximity to the Hail Creek mine and the fact that it has a DA for the accommodation village. This finding does not reveal that the primary member misunderstood Mr Michelmore’s submission, but rather it was a succinct encapsulation of the potentiality or attribute of the subject land that is of value to the assumed acquirer, Hail Creek. It revealed an understanding and application of Mr Michelmore’s submission on the Raja principle.
  1. [62]
    The primary member noted that she was “not persuaded that Raja advances Mr Michelmore’s case beyond that general proposition”, which was that “the subject land must be valued having regard to the location and the DA”. This statement was a recognition that in the present case, the existing use of the land as an accommodation village was the highest and best use of the land and was not in fact a potentiality of the land. Hence, Raja’s case, which addresses valuation of a potentiality of land that is of value to the acquirer, was not directly applicable. The “potentiality” claimed by Mr Michelmore in the present case, the accommodation village constructed on the land that is used for the mine workers of the Hail Creek mine, was in fact an “actuality”, which formed part of the market value of the land. The primary member valued the land, and hence determined compensation, having regard to this attribute of the land. It is for this reason that the primary member stated that Raja’s case did not advance Mr Michelmore’s case beyond the general proposition.
  1. [63]
    The primary member’s statements in [37] of the judgment do not, therefore, reveal a misunderstanding or misapplication of Raja’s case.
  1. [64]
    The primary member’s statements in [65] equally do not reveal any misunderstanding or misapplication of either Raja or Geita Sebea. The primary member was there simply making the point that the fact that there might be only one possible purchaser of the land, the acquiring authority or person, does not mean that the purchaser would have to pay whatever price the owner might nominate; that would be inconsistent with the Spencer requirement that the purchaser is not so anxious to buy that he would overlook any ordinary business consideration. Thus, the primary member noted, the fact “that Hail Creek might be the only purchaser does not justify an extortionate valuation”. These statements are consistent with both Raja and Geita Sebea. Both cases did decide that a purchaser desirous of purchasing the potentiality of the land will pay “something more” than the value of the land for its existing use, but neither affords assistance as to how much more the purchaser would pay. This was recognised in Bocardo at [85]. It may be “a more or less token increase on what otherwise would be assessed as the land’s market value” (Bocardo at [86]). In the present case, the primary member assessed far more than a token increase, accepting as appropriate a multiple of 2.5 times the pastoral value of the land.
  1. [65]
    The primary member’s statement that the fact that Hail Creek might be the only purchaser does not justify an extortionate evaluation is not a misunderstanding of Raja, but instead a proper understanding of it. Raja emphasised that neither the vendor nor the purchaser should be considered as acting under compulsion; neither can force the other to buy or sell (at 312). The value is what “a willing purchaser will pay and not what a purchaser will pay under compulsion” (at 316) or “the price that would be paid by a willing purchaser to the willing vendor, and not the price that would be paid by a ‘driven’ purchaser to an unwilling vendor” (at 322–323). Moreover, as noted in Bocardo at [85], in applying Raja, “compensation was plainly not to be assessed on the basis of the owner ‘obtaining for himself a share in [the] value [of the land to the promoter for his scheme]’.” In the present case, this means compensation is not to be assessed on the basis that Mr Michelmore can obtain for himself a share in the value of the land to the purchaser, Hail Creek, for its use of the accommodation village for its mine workers.
  1. [66]
    The primary member’s comments in [65], therefore, do not reveal any error in understanding or application of Raja or Geita Sebea.
  1. [67]
    Insofar as Mr Michelmore challenges the multiple of 2.5 used by the primary member to determine the market value of the subject land as an accommodation village compared to its pastoral value, that is a finding of fact available on the evidence. The primary member accepted the evidence of Hail Creek’s valuer, Mr Cavanagh, in this regard, in preference to the evidence of Mr Michelmore’s valuer, Mr Caleo. Mr Cavanagh examined sales of land with existing accommodation and sales of land bought with the intention of constructing mine worker accommodation. He found that the sales reflected a premium of between 100% and 250% over and above the value for the alternative use (at [47] of the judgment). The primary member accepted Mr Cavanagh’s evidence (at [61] of the judgment). In contrast, the primary member generally was concerned about Mr Caleo’s capacity to give the Court independent advice and stated that she had “no confidence in Mr Caleo’s evidence” and “can give little or no weight to it” (at [36], for the reasons given in [27]–[35], and see also [49] and [52] of the judgment). More particularly, the primary member found that Mr Caleo’s evidence of relevance to the direct comparison method, including as to what premium he would assign from his assessments of value, was “grossly overstated”. For instance, to arrive at his valuation of $7,000,000, Mr Caleo would have to apply a premium of 3694%. When Mr Caleo was asked to use Mr Cavanagh’s direct comparison method, to derive a premium from the comparable sales of land, he thought he would assign a premium of 500%, far more than the 100% to 250% derived by Mr Cavanagh. The primary member noted that neither party sought for her to rely on or adopt Mr Caleo’s suggestion of 500% (at [49] of the judgment).
  1. [68]
    There is no error of law or principle of assessment in a court preferring or rejecting the evidence of one valuer rather than another: Pamalco Pty Ltd v Minister administering the National Parks and Wildlife Act 1974 (No 3) (1991) 71 LGRA 441 at 451. The primary member’s rejection of Mr Caleo’s evidence and acceptance of Mr Cavanagh’s evidence does not, therefore, reveal any error of law or principle.
  1. [69]
    In evaluating the competing valuation evidence, the primary member enjoyed advantages not available to this Court. As this Court observed in Glencore Coal Queensland Pty Ltd v Keys [2014] QLAC 2 at [13]:

“While there will be cases where this Court may be in as good a position as the Land Court to reach conclusions about matters of fact, including the value of land, there will inevitably be other cases where the Land Court, having observed the valuers giving evidence, will enjoy advantages not available to this Court. Thus, whether or not a sale is sufficiently comparable to the property to be valued, to provide useful evidence is a matter of expert opinion, which may not be capable of an exact "exposition of reasoning". The adjustments which may have to be made to the value of a property as shown by its sale, in order to reach a conclusion about the value of another property, will involve judgments, which sometimes can be "nothing more than the best guess that can be made". In determining whether to accept or reject a valuer's evidence of this nature, an exposition of judicial reasoning to explaining findings of fact is "inherently an incomplete statement of the impression which was made upon [the judge] by the primary evidence". There will inevitably be cases where a court at first instance, in choosing between the conflicting evidence of experts, is influenced by matters of impression. In such cases it is still necessary to recognise the advantages enjoyed by the Land Court.”

  1. [70]
    Mr Michelmore has not established error sufficient to justify appellate interference with the primary member’s findings preferring the evidence of Mr Cavanagh over the evidence of Mr Caleo generally or particularly in relation to the multiple that should be applied to derive the value of the land as an accommodation village.
  1. [71]
    For these reasons, I reject grounds 1 and 2.

The Sellars ground

  1. [72]
    Related to the first two grounds of appeal is the third ground. Mr Michelmore contended that another reason why the market value of the land would be assessed on the basis that it would continue to be used by Hail Creek as an accommodation village, without any or any significant discount for the risk that it would not be so used or that there would be changes to the existing DA to permit the accommodation village to be used by workers not employed by Hail Creek, is derived from the decision in Sellars. Mr Michelmore submitted that “the probability of a future commercial rental return from Hail Creek could be approached by the application of the principles applied in valuing a future hypothetical chance (commercial opportunity) derived from Sellars v Adelaide Petroleum NL (Sellars)” (at [74] of appellant’s written submissions).
  1. [73]
    In Sellars, the High Court held that although the civil standard of proof – the balance of probabilities – applies to proof of historical facts, what has happened, proof of future possibilities and past hypothetical situations involves assessing the degree of probability that an event would have occurred, or might occur: at 350, 365–367. The Court referred with approval to the earlier decision of Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 639–640; [1990] HCA 20 in turn citing Mallett v McMonagle [1970] AC 166 at 176, that “in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards.”
  1. [74]
    Mr Michelmore submitted that in the present case, a hypothetical purchaser would have considered it highly likely or almost certain that the current highest and best use of the land as an accommodation village would have continued for the expected life of the mine. That likelihood will inform the price which a hypothetical purchaser would pay. Having regard to this high likelihood or almost certainty, the compensation payable should not have been discounted for any or any significant risk that the accommodation village would not continue to be used by Hail Creek or that there would have been changes to the DA to allow other workers to use the accommodation village. Mr Michelmore contended that the primary member erred in not addressing this submission.
  1. [75]
    Hail Creek disputed the application of Sellars to Mr Michelmore’s claim for compensation under the MR Act but, if potentially Sellars were to apply, it would be inconsistent with application of the Spencer test. Sellars applies to claims for loss of a valuable opportunity, not claims for compensation. A claim for loss of a valuable opportunity is concerned with likelihoods and possibilities. The plaintiff must establish that a valuable opportunity exists and that the plaintiff could and would have done the things necessary to pursue the opportunity. Subjective assessments of likelihoods and probabilities need to be made.
  1. [76]
    Hail Creek submitted that a claim of this nature is fundamentally at odds with the application of the Spencer test. The Spencer test assumes there will be a transaction between a willing but not anxious buyer and a willing but not anxious seller, whereas a claim for loss of opportunity requires an assessment of whether there would in fact be a transaction. Applying the Spencer test, the court does not consider the likelihood of the possibility of a sale transaction, it assumes there will be a sale, or the actual terms on which it might be effected.
  1. [77]
    Hail Creek submitted that, in the absence of either authority applying loss of opportunity principles to the determination of compensation under the MR Act or evidence seeking to undertake this exercise, there is no reasonable basis to contend that the primary member, in applying the Spencer test to determine compensation, erred in her approach.
  1. [78]
    I find that Mr Michelmore has not established that the primary member erred in not applying Sellars to determine the compensation payable to Mr Michelmore under the MR Act. As Hail Creek has submitted, Sellars has no direct application in determining the market value of the subject land. The market value was to be determined by application of the Spencer test, which does not involve application of any principle deriving from Sellars for an assessment of damages for the loss of a commercial opportunity. Of course, an assessment of the market value of the land may involve making findings concerning the likelihood or possibility of certain events happening, such as a change of zoning of the land or the grant or modification of a development approval to permit a higher and better use of the land, but such findings of fact will be made on the evidence before the court and in the usual way, not by applying any principle deriving from Sellars.
  1. [79]
    The primary member did not err in not expressly applying Sellars in determining the compensation payable under the MR Act to Mr Michelmore. I reject ground 3.

The direct comparison method grounds

  1. [80]
    In the Court below, the parties were at issue as to the method of valuation that should be used to assess the market value of the subject land. Mr Michelmore contended for a net present value (NPV) approach, while Hail Creek contended for a comparable sales approach, referred to by its valuer as a direct comparison method. The NPV method involved determining the present value of the rental returns for occupation of the accommodation village over the 20 year term of any lease of the land. The direct comparison method involved comparing the premiums paid for a higher or better use of land beyond the existing use of the land which was the subject of the sale and applying that premium to the agreed pastoral value of the subject land to determine the market value of the land for its highest and best use as an accommodation village.
  1. [81]
    The primary member accepted that the appropriate methodology to apply was the direct comparison method rather than the NPV approach (at [46] of the judgment). Mr Michelmore contended that the primary member erred in accepting the direct comparison method rather than the NPV approach (ground 4) or, alternatively, erred in applying the direct comparison method, including by taking into account sales of land that are not comparable or accepting notional premiums that are not applicable (ground 5).
  1. [82]
    Mr Michelmore accepted that the comparable sales approach is usually the best method to estimate the market value of the land, however, this depends on there being comparable sales. The greater the difference between the comparable properties and the subject land, the less reliable is the evidence of the sales of the allegedly comparable properties: see Crompton v Commissioner of Highways (1973) 32 LGRA 8 at 23–24; Brewarrana Pty Ltd v Commissioner of Highways (1973) 32 LGRA 170 at 179–180; Redeam Pty Ltd v South Australian Land Commission (1977) 40 LGRA 151 at 156; Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGERA 409 at 434–436; Pamalco Pty Ltd v Minister Administering the National Parks and Wildlife Act 1974 (No 3) at 447. This was recognised by the primary member at [41]:

“Adjustments for comparable sales may be so great that a court may hold that the land is in no sense comparable, and the sale can provide no evidence of value. In the absence of comparable sales, a valuer can look to the return which a purchaser would expect from the land, or the capitalisation of the rental.”

  1. [83]
    Mr Michelmore contended that in this case, with one exception, the comparable sales used by Hail Creek’s valuer, Mr Cavanagh, were not of existing accommodation villages or approved accommodation village land sales, and hence were not in fact comparable. The exception was the sale of land at 72 Golf Course Road, Sarina on which an approved accommodation workers village had just been constructed. Mr Cavanagh did not use these comparable sales to directly derive the market value of the subject land, as would be conventional if a comparable sales approach were to be used. Instead, Mr Cavanagh used the sales to derive a premium that may have been paid by the purchasers over and above the value of the site for its existing use to reflect the potential to be used for an alternative use. The primary member explained this approach at [47]:

Mr Cavanagh looked at comparable sales of land with existing accommodation and sales of land bought with the intention of constructing mine accommodation. He found that the sales reflected a premium of between 100% and 250% over and above the value for the alternative use. Mr Cavanagh adopted the highest premium of 250% and applied it to the subject land’s value as grazing land, giving a value of $3,500/ha, a total of $482,230.”

  1. [84]
    Mr Michelmore submitted that the primary member erred in accepting Mr Cavanagh’s direct comparison method as the appropriate methodology to be applied. First, Mr Cavanagh’s method was not a comparable sales approach, as with the exception of the Sarina sale, the sales used by Mr Cavanagh were not comparable. Second, Mr Cavanagh’s direct comparison method was not a conventional comparable sales approach, but instead sought to derive a premium for the sales that could be applied to the subject land’s pastoral value to derive the value of the land as an accommodation village. Third, this approach was subjective: “the premiums assessed and relied on by Mr Cavanagh were inherently subjective and by their nature provided a blunt instrument for comparison purposes” (at [84(a)] of the appellant’s written submissions).
  1. [85]
    Mr Michelmore submitted that these difficulties with Mr Cavanagh’s method should have led the primary member to find that the method was not appropriate.
  1. [86]
    Alternatively, if the direct comparison method was an appropriate methodology, Mr Michelmore contended that the primary member erred in accepting the premium accepted by Mr Cavanagh, as it was too low. The only sale that provided a direct comparison with the subject land was the Sarina sale. On a proper analysis of the Sarina sale, it revealed that a premium in excess of the 250% premium derived by Mr Cavanagh was appropriate. Mr Michelmore submitted that the primary member thereby erred in accepting Mr Cavanagh’s premium of 250%.
  1. [87]
    Hail Creek submitted that Mr Cavanagh’s direct comparison method was a form of comparable sales approach. Hail Creek noted that Mr Michelmore accepted that a comparable sales approach is the conventional approach and is usually to be preferred. Both valuers in this case agreed that the direct comparison approach is the preferred method of valuation (recorded at [39] of the judgment). The primary member also recognised this (at [38]). That Mr Cavanagh used the direct comparison method to derive premiums above the value for the alternative use that could be applied to the pastoral value of the subject land, rather than directly deriving the value of the subject land from the comparable sales, did not cause his method not to be a form of direct comparison approach. Hail Creek submitted that “Mr Cavanagh’s direct comparison method provides an objective comparison assessment by way of premiums paid above alternative land use values for land proposed to be used for accommodation village purposes” (at [66] of the respondents’ reply to appellant’s submissions). It was open to the primary member to accept that approach. Indeed, having rejected the evidence of Mr Michelmore’s valuer, Mr Caleo, in its entirety and hence his NPV method, Hail Creek submitted it is difficult to see what other approach the primary member could rationally have adopted.
  1. [88]
    As to the alternative contention in ground 5, Hail Creek submitted that the primary member’s consideration of Mr Cavanagh’s direct comparison method generally and the Sarina sale particularly, did not reveal any error of law or principle of assessment. Mr Cavanagh used the Sarina sale to derive the premium that could be applied to the pastoral value of the subject land in order to determine the value of the subject land as an accommodation village. The primary member accepted Mr Cavanagh’s evidence and approach, as she was entitled to do.
  1. [89]
    I find that Mr Michelmore has not established that the primary member erred in law or principle in accepting as the appropriate methodology to be applied in order to determine the market value of the land Mr Cavanagh’s direct comparison method instead of Mr Caleo’s NPV method or in accepting Mr Cavanagh’s evidence applying the direct comparison method in preference to Mr Caleo’s evidence.
  1. [90]
    Mr Cavanagh’s direct comparison method was a form of comparable sales approach. The paucity of sales of land with an approved and constructed accommodation village meant that the market value of the subject land could not be derived directly from the sales of other land with an accommodation village, which would have been a conventional application of the comparable sales approach: see at [40] of the judgment. The Sarina sale was the only sale of land with an approved and constructed accommodation village. Although Mr Caleo sought to derive a market value directly from the Sarina sale, by reducing the sale price to a per hectare rate (at [50] of the judgment), the primary member did not accept his evidence generally (at [36], [49] and [52]) or his analysis of the Sarina sale particularly (at [50], [54]–[61] of the judgment). Mr Cavanagh used the comparable sales, including the Sarina sale, instead to derive a premium that the market is willing to pay for a site with development potential for a workforce accommodation village (at [47], [51] of the judgment). Mr Cavanagh found that the sales reflected a premium of between 100% to 250% over and above the value for the alternative use (at [47] of the judgment). The premium of 250% was derived from the Sarina sale, which site he considered to be superior to the subject land (at [59]-[60]).
  1. [91]
    The primary member found (at [61]) that:

“Mr Cavanagh’s approach of assessing the premium a purchaser will pay for the prospect of developing mining accommodation is a more accurate assessment of the decision-making process a hypothetical purchaser is likely to undertake. It does not suffer from an attempt to draw comparable values from incomparable sales. In my view, Mr Cavanagh has accounted for Mr Caleo’s criticism by adopting the maximum premium. I prefer Mr Cavanagh’s approach.”

  1. [92]
    There is, therefore, no merit in Mr Michelmore’s argument that Mr Cavanagh’s direct comparison method was not a form of comparable sales approach, which both valuers accepted was the preferred method of valuation, or that in its application it involved use of sales that were not comparable.
  1. [93]
    The primary member found that, in the particular circumstances, Mr Cavanagh’s direct comparison method was the appropriate methodology to apply (at [46] of the judgment). In so finding, the primary member considered the criticisms of Mr Caleo, Mr Michelmore’s valuer (at [48]–[55] of the judgment). The primary member rejected Mr Caleo’s criticisms not only because of her overall finding that little or no weight should be placed on Mr Caleo’s evidence (at [36], [49] and [51] of the judgment), but also substantively, by highlighting the difficulties with Mr Caleo’s evidence (at [48]–[61] of the judgment). The primary member also addressed the criticisms Mr Michelmore made in submissions, which were to the same effect of those raised on this appeal ([56]–[57] particularly but also [50]–[61] generally of the judgment).
  1. [94]
    In circumstances where different valuation methods are equally available on the evidence, the choice of one valuation method over another as being the appropriate methodology to be applied in the particular circumstances, does not involve any error of law or principle of assessment: Leichhardt Municipal Council v Seatainer Terminals Pty Ltd at 418–419. It was reasonably open to the primary member on the evidence to find that the direct comparison method used by Mr Cavanagh was to be preferred over the NPV method used by Mr Caleo. The primary member’s reasons for so preferring Mr Cavanagh’s method to Mr Caleo’s method were themselves logical, rational and evidence-based. Mr Michelmore’s mere disagreement with Mr Cavanagh’s method, and the primary member’s application of it, is insufficient to establish any error in the primary member’s decision.
  1. [95]
    Having chosen the valuation method of the direct comparison method, the choice of which sales transactions were comparable and the respects in which they were or were not comparable were questions of fact. A court will not err in law by selecting or rejecting a sale transaction as comparable, unless in doing so the court ignores a principle of assessment of compensation or rejects as wholly irrelevant to the assessment of compensation, a transaction which prima facie affords some evidence of value and rejects it for reasons which are not rational: Melwood Units Pty Ltd v Commissioner of Main Roads [1979] AC 426 at 432; Brisbane City Council v Valuer-General for the State of Queensland (1978) 140 CLR 419 at 49–50; [1978] HCA 40.
  1. [96]
    Thus, the question of whether the Sarina sale was a comparable sale that could be used to derive the value of the subject land was one of fact, not law: Leichhardt Municipal Council v Seatainer Terminals Pty Ltd at 433. Equally, the question of the adjustments that ought to be made to the Sarina sale to derive the value of the subject land is a question of fact, not law. Any error in analysing the adjustments made by one valuer in preference to those made by another will generally be an error of fact, unless in doing so the court ignores a principle of assessment of compensation or rejects as wholly irrelevant, for grounds which are not rational, a matter which prima facie affords some evidence of value: Leichhardt Municipal Council v Seatainer Terminals Pty Ltd at 434, and see also Emerald Quarry Industries Pty Ltd v Commissioner of Highways (South Australia) (1979) 142 CLR 351 at 355–356; [1979] HCA 17. The primary member did not, therefore, err in accepting as comparable the Sarina sale or accepting the adjustments that Mr Cavanagh made to that sale to derive a premium to be used to assess the value of the subject land.
  1. [97]
    The Sarina sale was the central sale used by Mr Cavanagh, and accepted by the primary member, to derive the premium of 250% that was used to assess the value of the subject land for its highest and best use as an accommodation village. The primary member addressed specifically the disagreement between the valuers about whether the sale price was $2,000,000 or $2,500,000, finding the sale price to be the former and not the latter (at [54]–[57]) of the judgment). That was a finding of fact open to the primary member on the evidence. The primary member also accepted Mr Cavanagh’s analysis of the Sarina sale in preference to Mr Caleo’s analysis (at [60] of the judgment). No error is revealed in the primary member’s analysis and application of the Sarina sale.
  1. [98]
    I reject grounds 4 and 5.

The NPV ground

  1. [99]
    Grounds 4 and 5 contended that the primary member erred in accepting and applying the direct comparison method. Ground 6 is the converse of these grounds, contending that the primary member erred in not accepting and applying the NPV method. Mr Michelmore submitted that the primary member erred in finding that the NPV method had the same problems as the direct comparison method (at [43] of the judgment), and did not cure the problems inherent in the direct comparison method but instead mirrored and amplified these problems (at [34] of the judgment).
  1. [100]
    Mr Michelmore put this ground in three ways. The first was to decry Mr Cavanagh’s direct comparison method. Mr Michelmore repeated the submission he had made on grounds 4 and 5, identifying perceived problems with Mr Cavanagh’s direct comparison method, including the deficiency of directly comparable sales. Mr Michelmore submitted that these problems should have led the primary member to reject the direct comparison method, which would have left the NPV method as the only available methodology to be applied.
  1. [101]
    The second was to speak up for the NPV method. Mr Michelmore submitted that the NPV method was the appropriate methodology to apply in the circumstances. He submitted:

“The evidence of rentals being paid for the occupation of workers accommodation land was the only substantial body of evidence that provided a sufficiently comparative basis to assess compensation for the loss of income that would be derived from subject approved site [sic] absent the ML. That evidence included a broad range of accommodation site rentals including existing village sites in rural townships and remote sites on broad acre grazing properties. It showed a reasonably consistent pattern both in terms of rental range and Lessee obligations” (at [91] of appellant’s written submissions).

  1. [102]
    Mr Michelmore submitted that this should have led the primary member to use the NPV method to assess compensation or, alternatively, as a check method on the value derived from the direct comparison method. Mr Michelmore noted that Mr Cavanagh, although preferring the direct comparison to the NPV method, nevertheless did an assessment of compensation using the NPV method. That assessment resulted in an amount of $2,403,933, which was nearly five times the amount he had calculated using the direct comparison method. Mr Michelmore submitted that this difference in the amount of compensation Mr Cavanagh assessed using the different methods showed that the direct comparison method was flawed compared to the NPV method.
  1. [103]
    The third way was to challenge the findings that the primary member made, or failed to make, about the NPV method. As already noted, Mr Michelmore challenged the findings the primary member made in [43] and [44] of the judgment, although except for asserting that the primary member erred, Mr Michelmore did not explain why those findings were in error.
  1. [104]
    Mr Michelmore submitted that the primary member further erred in not making certain findings about three inputs in the NPV method, which the primary member should have made if she had used the NPV method. These three inputs were:
  1. 1.the number of rooms at the accommodation village on the subject land to be used to calculate the potential rental return, whether the fully approved rooms (1207), or the number of rooms used currently (1056);
  2. 2.the gross applied room rate to be used, whether the lower room rate calculated by Mr Cavanagh or the higher room rate urged by Mr Michelmore; and
  3. 3.whether the additional discount proposed by Mr Cavanagh should be applied “to acknowledge a prudent purchaser would not take the risk and pay a value for the land on a fully let basis” or should not be applied as argued by Mr Michelmore because of the high likelihood or almost certainty that, but for the mining lease, Hail Creek would have renewed the lease on commercial terms for another 20 years.
  1. [105]
    Mr Michelmore contended that the primary member erred in failing to make the findings he contended should have been made regarding these three inputs.
  1. [106]
    Hail Creek submitted that this ground is but another way of putting grounds 4 and 5. The primary member was entitled to reject Mr Caleo’s evidence and the NPV method in favour of Mr Cavanagh’s evidence and the direct comparison method. The primary member considered the points that Mr Michelmore has repeated on this appeal as to why the NPV method should be adopted, but rejected them. No error was involved in doing so.
  1. [107]
    I find that Mr Michelmore has not established that the primary member erred in not applying the NPV method. As Hail Creek submitted, this ground adds little, if anything, to grounds 4 and 5. The primary member was faced with a choice between competing valuation methods, Mr Cavanagh’s direct comparison method or Mr Caleo’s NPV method, and she chose the former over the latter. No error of law or principle of assessment was involved in doing so. Having chosen to apply the direct comparison method instead of the NPV method, there was no warrant to make any findings of fact regarding any inputs to the NPV method, including the number of rooms, the gross applied room rate or any additional discount. The primary member cannot have erred in law or fact in not making findings regarding inputs to a valuation method, the NPV method, that she did not apply. In this circumstance, it matters not that there was disagreement between Mr Cavanagh and Mr Caleo on these inputs to the NPV method. The primary member’s rejection of Mr Caleo’s evidence and the NPV method made it unnecessary to resolve this disagreement between the valuers on the application of the NPV method.
  1. [108]
    I reject ground 6.

The Dasreef ground

  1. [109]
    Mr Michelmore submitted that Mr Cavanagh failed to identify any or any sufficient explanation for his methodology or the deductions and discounts applied by him. Mr Michelmore did not identify which methodology this alleged failure applied to, although the examples given in submissions would appear to relate to the NPV method rather than the direct comparison method. Mr Michelmore submitted that this failure involved a failure to meet the requirements for admissibility of expert evidence and led to the evidence having no or little probative force.
  1. [110]
    Mr Michelmore invoked the statement of principle for the admissibility of expert evidence in Dasreef at [91] that “an expert opinion is inadmissible unless the expert states in chief the reasoning by which the expert conclusion arrived at flows from the facts proved or assumed by the expert so as to reveal that the opinion is based on the expert’s expertise”: see also at [37].
  1. [111]
    Hail Creek noted that the concerns raised by Mr Michelmore about Mr Cavanagh’s evidence all relate to the NPV method, not the direct comparison method. In this respect, the ground goes nowhere, as the NPV method was not Mr Cavanagh’s preferred methodology and was not accepted by the primary member. Criticism of Mr Cavanagh’s evidence on a method that the primary member did not adopt do not found a proper ground of appeal.
  1. [112]
    Hail Creek further noted that the principle in Dasreef concerns the admissibility of expert evidence. The time to take the objection that Mr Michelmore now makes was at the hearing before the primary member. Mr Cavanagh’s evidence on the NPV method was admitted at the hearing in the court below and he was cross examined by Mr Michelmore on it. Insofar as the point now taken by Mr Michelmore goes to the weight of Mr Cavanagh’s evidence on the NPV method, Mr Michelmore had the opportunity to make that submission to the primary member. The primary member had the opportunity to, and did in fact, assess the credibility and weight to be given to the competing expert evidence of Mr Cavanagh and Mr Caleo, preferring Mr Cavanagh’s evidence over Mr Caleo’s evidence. This assessment of the competing expert evidence was one for the primary member to make and there is no basis to disturb her reliance on the expert evidence of Mr Cavanagh in preference to that of Mr Caleo.
  1. [113]
    I find that Mr Michelmore has not established that the primary member erred in accepting and giving weight to the evidence of Mr Cavanagh in preference to the evidence of Mr Caleo. Mr Michelmore’s reliance on Dasreef is misplaced. First, no objection was taken at the hearing before the primary member or on the appeal to this Court as to the admissibility of Mr Cavanagh’s evidence, either generally or in relation to the NPV method particularly, on the ground that his evidence failed to disclose the basis or reasoning for his expert opinion. Second, the objection now taken is to Mr Cavanagh’s evidence on the NPV method, but that method was not accepted by the primary member. It matters not whether Mr Cavanagh’s evidence on the NPV method did or did not state the basis or reasoning for his opinions in circumstances where the primary member did not rely on the NPV method and hence on any evidence on that method. Third, it was reasonably open to the primary member to prefer, and to give weight to, the evidence of one expert over that of another expert. In making that evaluation of competing evidence, the primary member took into consideration the content of the evidence and the manner in which the evidence was given. That is what Mr Michelmore contended ought to have been done. The fact that it was done in a different manner with a different result to how Mr Michelmore contended it should have been done is immaterial.
  1. [114]
    I reject ground 7.

The liberal estimate ground

  1. [115]
    Mr Michelmore contended that the primary member erred in failing to apply the principle that, in assessing the compensation payable, “doubts are resolved in favour of a more liberal estimate”: Commissioner of Succession Duties (SA) v Executor Trustee and Agency Company of South Australia Ltd at 374. Mr Michelmore did not identify any particular respect in which this principle was said not to have been applied by the primary member. Mr Michelmore had made a similar sweeping submission to the primary member. The primary member dealt with it, saying:

Mr Thompson QC reminded me that, where there is a doubt in compensation cases, that doubt must be resolved in favour of the claimant. That principle has two caveats. The first is that its application does not change the test of value to be applied. Therefore, adopting a liberal view does not justify applying a test for value that is otherwise inappropriate. The second is that the resolution of doubt occurs applied in the exercise of my discretion to achieve a just result.  That means that if there are two equally plausible results, I should choose the result that favours the claimant. It does not mean that if there is no evidence to support a proposition, or the evidence is doubtful, I should accept it because it will favour the claimant.”

  1. [116]
    Hail Creek submitted that Mr Michelmore pitched this ground too highly: it is not the law that a court must resolve every doubt in favour of a person entitled to compensation. The primary member’s response to the same submission made in the court below in [63] of the judgment was correct in law and in application to the facts of the case.
  1. [117]
    I find that Mr Michelmore has not established that the primary member erred in failing to apply the principle that doubts should be resolved in favour of a more liberal estimate of compensation, including for the reasons given by Hail Creek. Mr Michelmore has not identified any particular issue on which there was doubt and in respect of which the primary member should have resolved it in favour of Mr Michelmore. The liberal estimate principle did not dictate either the valuation method or the evidence of one valuer over another that the primary member should accept. The primary member was required to evaluate the evidence of the competing witnesses and make findings from the evidence in the usual way. The liberal estimate principle did not demand that the primary member apply a valuation method that she found to be inappropriate in the circumstances or the evidence of a valuer in which she had no confidence and to which she could give little or no weight, just because to do so might award a greater amount of compensation to Mr Michelmore.
  1. [118]
    To have done so would have involved error, as Allsop P found in Sydney Water Corporation v Caruso (2009) 170 LGERA 298; [2009] NSWCA 391 at [2]–[4], where the primary judge had done just that:
  1. “2.The primary judge’s expression of principle (for that is what it was) as to how she would resolve competing expert evidence at [81] of her reasons was wrong and revealed legal error for the purposes of the Land and Environment Court Act 1979 (NSW) (“LEC Act”), s 57.
  2. 3.The general principle that in determining compensation to a dispossessed owner doubts should be resolved in favour of a more liberal estimate is well-known: see generally A Hyam The Law Affecting Valuation of Land in Australia (4th Ed 2009 Federation Press) at 316-318. That does not, however, detract from the need to engage with and evaluate evidence and competing witnesses. If, however, upon engagement and assessment, the judicial valuer finds, for example, as Anderson J did in Cook and Edwards v City of Sterling (1991) 4 WAR 469, that the reasoning of both valuers was not fallacious, that their respective capitalisation rates were open, that none took into account irrelevant considerations and no errors otherwise appeared, the proper conclusion might be that there are simply two open views on the relevant issue – as there can be in ascribing a value: cf Fenton Nominees Pty Ltd v Valuer-General (1981) 47 LGRA 71 at 76-77. In such circumstances, applying the general principle would be uncontentious.
  3. 4.It is not helpful to examine the scope of the general principle in the abstract beyond saying that it is not a licence to accept one expert over another without undertaking the task of assessing the evidence in the usual way. If a judge properly undertakes that task, the evaluation of the evidence may well persuade the judge to accept the evidence favouring the resuming authority. That would be a product of assessing the evidence. That process is not to be abandoned as the statement of the judge at [81] of her reasons would suggest she did.”
  1. [119]
    I reject ground 8.

Conclusion on appeal against the compensation determination

  1. [120]
    Mr Michelmore has not established any of the grounds of appeal against the primary member’s compensation determination. The appeal should be dismissed with costs.

Appeal against the costs decision

  1. [121]
    Mr Michelmore appealed against the primary member’s decision on 19 July 2021 ordering Mr Michelmore to pay Hail Creek’s costs of the proceedings of and incidental to the hearings on 4 and 11 December 2020 and the application brought on 1 March 2021, and thrown away by the adjournment of the hearing on 14 December 2020. Mr Michelmore contended that the primary member should instead have ordered Hail Creek to pay Mr Michelmore’s costs of and incidental to the proceedings. Alternatively, Mr Michelmore contended that the primary member should have ordered Hail Creek to pay Mr Michelmore’s costs of an incidental to the proceedings up to the date of the expiry of Hail Creek’s offer of 1 December 2020 to settle the proceedings and that there be no orders as to costs from the date of expiry of that offer.
  1. [122]
    Mr Michelmore raised 13 grounds in his notice of appeal against the costs decision. He did not elaborate, by way of written or oral submissions in this Court, on these grounds.
  1. [123]
    Grounds (a) and (b) contended that the primary member erred in finding at [8] that the default position in compensation cases under the MR Act is that each party should bear their own costs, following this Court’s decision in Lonergan & Anor v Friese (No 2) [2020] QLAC 4 (Lonergan No 2) at [27], instead of finding that, in the context of s 281(3)(vi) of the MR Act, the default position is that the owner of land should be compensated for his costs of the proceedings. Beyond making these bare assertions, Mr Michelmore did not submit why the primary member erred in following this Court’s decision in Lonergan No 2 or why this Court’s decision in Lonergan No 2 was wrong.
  1. [124]
    Ground (c) challenged the primary member’s finding of fact in [11] that it was “not quite true” that Mr Michelmore had no choice about these proceedings and in [32] that the proceedings were in the nature of a “commercial contest”, but did not explain why these finding were in error.
  1. [125]
    Grounds (d), (e) and (f) referred to Hail Creek’s offer made on 1 December 2020 offering to settle the proceedings by paying Mr Michelmore compensation in the amount of $2,200,000, with each party bearing its own costs of the proceedings. Ground (d) contended that the primary member erred in failing to make certain findings such that there would be no basis for ordering Mr Michelmore to pay Hail Creek’s costs up to the date of that offer. Ground (e) challenged the primary member’s finding in [39] that Mr Michelmore’s non acceptance of the offer was one of the “missed opportunities”. Ground (f) contended that the primary member erred in failing to make certain findings such that, at the time the offer expired, it was reasonable for Mr Michelmore not to have accepted the offer and instead to have awaited further evidence before accepting any offer of compensation. Beyond making these assertions, Mr Michelmore did not elaborate as to why the primary member erred in these ways.
  1. [126]
    Ground (g) concerned Mr Cavanagh’s evidence, contending that the primary member erred in failing to find his evidence did not disclose the basis and reasoning for his opinions (the Dasreef point), that Mr Michelmore acted reasonably in not accepting any offer of compensation until Mr Cavanagh did provide a satisfactory explanation for his calculation and deductions, and that Mr Michelmore succeeded in having compensation assessed in an amount greater than Mr Cavanagh’s primary assessment (although not his later assessment that was accepted by the primary member). Why the primary member was in error in failing to make these findings was not explained.
  1. [127]
    Ground (h) concerned Hail Creek’s failure to renew its offer of 1 December 2020 or to make any other offer in an amount greater than the amount of compensation that was later assessed by the Court. Mr Michelmore contended that the primary member failed to find that Hail Creek had failed to renew its offer or to make a new offer. Why this mattered was not explained; the important point for the primary member’s decision was that Hail Creek’s offer of 1 December 2020 offering to settle for $2,200,000 was over four times the amount that the primary member later assessed to be the compensation payable to Mr Michelmore.
  1. [128]
    Grounds (i) and (j) concerned the primary member’s rejection of Mr Caleo’s evidence in the compensation determination. Ground (i) contended that the primary member (in [19] and [39] of her costs decision) misstated the basis upon which she had rejected Mr Caleo’s evidence in her compensation determination. Ground (j) contended that the primary member erred in failing to find that she had rejected Mr Caleo’s evidence on a different basis. Why there was any misstatement or how any misstatement raised an appellable error were not explained.
  1. [129]
    Grounds (k) and (l) concerned Mr Michelmore’s conduct of the proceedings. Ground (k) challenged the primary member’s finding that he did not present “an arguable and well organised case” (at [13]) and had acted “unreasonably” (at [28]). Ground (l) challenged the primary member’s award of costs against Mr Michelmore in circumstances where she had earlier found that his conduct was not “vexatious, dishonest or grossly exaggerated” (at [32]), that “he was entitled to rely on the professional advice he had received” (at [19]) and that “there is no evidence that Mr Michelmore himself acted inappropriately” (at [31]). Mr Michelmore did not explain why the primary member erred in making the findings referred to in ground (k) or why, notwithstanding the primary member’s findings referred to in ground (l), the findings referred to in (k) were not sufficient by themselves to justify the award of costs against Mr Michelmore.
  1. [130]
    Ground (m) merely asserted what order for costs Mr Michelmore contended that the primary member ought to have made, and then contended that the primary member erred in not making that order.
  1. [131]
    Hail Creek submitted that the primary member had an unfettered discretion to award costs when exercising the power under s 27A of the LC Act or s 281(7) of the MR Act: Queensland Industrial Minerals Pty Ltd v Younger and Ors; Queensland Industrial Minerals Pty Ltd v Ryan (No 2) (2017) 38 QLRC 210; [2017] QLC 54 at [4]. However, that discretion must be exercised judicially, for reasons that can be explained and substantiated, and “without caprice, having regard to relevant considerations and established principles”: Queensland Industrial Minerals Pty Ltd v Younger at [4]; Anson Holdings Pty Ltd v Wallace (No 2) [2010] 31 QLCR 130; [2010] QLAC 4 at [5]; Morton Bay Regional Council v Mekpine Pty Ltd (No 2) (2014) 35 QLCR 273; [2014] QLAC 5 at [12].
  1. [132]
    Hail Creek submitted that this Court would not interfere in the primary member’s exercise of the costs discretion absent any error of the kind articulated in House v The King (1936) 55 CLR 499 at 504–505; [1936] HCA 40. Hail Creek submitted that Mr Michelmore can only succeed if this Court finds that there was some error in fact or law by the primary member exercising her discretion, or if the result of the exercise of the discretion was so manifestly wrong as to bespeak error, even if the error cannot be identified. Hail Creek submitted that none of the grounds raised in the notice of appeal against the costs decision, without any elaboration by way of submission, establish that the primary member erred in any of these ways articulated in House v The King.
  1. [133]
    The primary member gave adequate reasons for her decision to award costs, which drew on the primary member’s knowledge of Mr Michelmore’s conduct of the proceedings, the evidence he adduced and the case he made at the hearing before her. There is nothing in the reasons that reveal error sufficient to warrant appellate interference with the exercise of the costs discretion.
  1. [134]
    I find that Mr Michelmore has not established any appellable error in the primary member’s costs decision. The bare assertion of error in the grounds of appeal, without any explanation, falls short of what is necessary to establish error sufficient to justify appellate interference with the primary member’s exercise of the costs discretion. As Hail Creek submitted, this Court will not lightly interfere in the exercise of the costs discretion, unless error of the kind articulated in House v The King is established. Mr Michelmore has not done so. The grounds of appeal to a large extent appear to repeat submissions made by Mr Michelmore in the court below, and assert that the primary member erred in not accepting those submissions. That does not establish appellable error.
  1. [135]
    As Hail Creek also submitted, the primary member was in an advantageous position to determine the appropriate costs order. The primary member witnessed the whole hearing, including the conduct of the parties, the evidence adduced, the submissions made and the tactical shifts that took place during its course. The primary member was able to appreciate far better than this Court the nuances involved in the hearing: see for a similar statement about the peculiarly advantaged position of a trial judge in determining an appropriate costs order, Parker v NRMA (1993) 11 ACSR 370 at 401.
  1. [136]
    It is for such reasons that the authorities establish “that something beyond a mere difference in opinion with the trial judge must be found before a court of appeal grants leave to re-agitate cost determinations, so classically an area where judicial minds may legitimately differ”: Gorczynski v Annandale Services Pty Ltd; Gorczynski v Perera; Gorczynski v Leichhardt Council [2004] NSWCA 71 at [22]. Equally, where there is a right of appeal, such as in this case, there needs to be something beyond a mere difference in opinion with the primary member before this Court will interfere with the costs determination.
  1. [137]
    I would dismiss the appeal against the costs decision.

Conclusion and orders

  1. [138]
    I have found that Mr Michelmore’s application to extend the time to appeal against the compensation determination should be granted, but the appeal against the compensation determination should be dismissed. Mr Michelmore’s appeal against the costs decision should also be dismissed.
  1. [139]
    As far as the costs of this application and these appeals are concerned, I consider it is appropriate to order Mr Michelmore to pay Hail Creek’s costs. The application to extend time to appeal was heard concurrently with the appeal against the costs determination. The latter appeal occupied the bulk of time in preparation and hearing compared to the former application to extend time for bringing the appeal. It is appropriate that costs of the former be costs in the latter and that costs follow the event of the latter. Mr Michelmore, having been unsuccessful in the appeal against the compensation determination, should pay Hail Creek’s costs of both the application to extend time to appeal and the appeal against the compensation determination.
  1. [140]
    The costs of the appeal against the costs determination should also follow the event, so that Mr Michelmore should pay Hail Creek’s costs.
  1. [141]
    I propose that the Court should make the following orders:
  1. 1.Extend the time for Mr Michelmore to appeal against the decision of the Land Court dated 27 May 2021 to 2 July 2021.
  2. 2.Dismiss the appeal against the decision of the Land Court dated 27 May 2021.
  3. 3.Dismiss the appeal against the decision of the Land Court dated 19 July 2021.
  4. 4.Order the appellant to pay the respondents’ costs of proceedings LAC005-21 and LAC006-21 in this Court.
Close

Editorial Notes

  • Published Case Name:

    Michelmore v Hail Creek Coal Holdings Pty Limited & Ors

  • Shortened Case Name:

    Michelmore v Hail Creek Coal Holdings Pty Limited

  • MNC:

    [2021] QLAC 4

  • Court:

    QLAC

  • Judge(s):

    Crow J

  • Date:

    17 Dec 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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