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Carpentaria Gold Pty Ltd v Hood[2015] QLC 36

Carpentaria Gold Pty Ltd v Hood[2015] QLC 36

LAND COURT OF QUEENSLAND

CITATION:

Carpentaria Gold Pty Ltd v Hood [2015] QLC 36

PARTIES:

Carpentaria Gold Pty Ltd

(applicant)

v

Anthony Gordon Hood and June Heather Hood

(respondents)

FILE NO:

MRA188-12

DIVISION:

General

PROCEEDING:

An application for leave to adduce further expert evidence.

DELIVERED ON:

8 September 2015

DELIVERED AT:

Brisbane 

HEARD ON:

28 April 2015

HEARD AT:

Brisbane

MEMBER:

WL Cochrane

ORDERS:

1. The application is allowed. 

2. The respondent is granted leave to adduce further evidence from three additional expert witnesses namely the valuer Mr Geoffrey William Eales, the hydrogeologist Mr Errol Haydn Briese and the veterinary consultant Dr David Keith Rendell.

CATCHWORDS:

Mining Lease – Determination of Compensation – Mineral Resources Act 1989 s 281.

Practice and Procedure – Application to rely upon evidence of second and an additional expert after without prejudice conclave conducted agreement reached between experts disposing of question of compensation.

Considerations – case management, justice as between the parties – balancing considerations.

Costs implications.

AON Risk Services Australia Limited v Australian National University [2009] HCA 27.

CH4 Pty Ltd v The Minister for Natural Resources, Mines and Energy and Minister for Trade [2010] QLC 0037.

Conias Hotels Pty Ltd v Murphy & Anor [2012] QSC 297.

D v S [2009] QSC 446.

Gallo v Department of Environment and Resource Management (No. 2) [2014] QLAC 11.

Lucantonio v Kleinert [2009] NSWSC 853.

State of Queensland & Anor v JL Holdings Pty Ltd (1997) 189 CLR 146.

Toan Van Pham & Ors v Brisbane City Council [2011] QLC 0038.

APPEARANCES:

Mr T Palmer of counsel appearing for Carpentaria Gold Pty Ltd

Mr PJ Dunning QC and Mr DA Quayle of counsel appearing for the respondents

Background

  1. [1]
    Mining Lease 10170 is held by Carpentaria Gold Pty Ltd. The lease forms part of the gold mining project described as the Ravenswood Project. This matter arises out of a referral by the Mining Registrar at Charters Towers of an application for renewal of a mining lease.
  2. [2]
    ML 10170 lies over Redcliff Station at Middlemount which property is owned, pursuant to an operational licence OL77 and OL78, by Anthony Hood and June Hood who use the property for grazing.
  3. [3]
    The applicant Carpentaria Gold Pty Ltd, by an application made on 23 July 2011 seeks renewal of lease ML 10170 over an area of 362.6431 ha for nine years.
  4. [4]
    The matter of compensation between the parties was unable to be agreed and on 20 April 2012 the matter was referred by the Mining Registrar to this Court pursuant to s 279A of the Mineral Resources Act 1989 (MRA) because compensation had not been determined within 3 months after the term of the lease notionally ended.
  5. [5]
    Initially the respondents were represented by Rees R and Sydney Jones, a Rockhampton firm of solicitors.
  6. [6]
    During the time of that representation and in accordance the statutory requirements the respondents filed a compensation statement on 13 November 2014. That compensation statement was prepared by and lodged by their then solicitors and in that compensation statement they sought a sum of $34,000 by way of compensation.
  7. [7]
    That compensation sum was said in the compensation statement to be in reliance upon a valuer’s analysis and approach to the assessment of compensation and the calculation of the compensation payable pursuant to s 281(3) and (4) of the MRA.
  8. [8]
    That valuation report had been prepared by Mr Dennis Schy of Herron Todd White.
  9. [9]
    Mr Schy actually prepared two valuation reports, one of which was premised upon the original application for renewal of the mining lease.[1]  That report was dated 1 January 2012. That first report concluded that the appropriate compensation figure was $120,000.
  10. [10]
    The need for a second report arose because of a notification received from representatives of the applicant that they proposed to lodge, and indeed had lodged,[2] a substituted statement pursuant to s 286(2)(c) of the MRA which made it clear that they proposed to amend the application for renewal so as to remove reference to mining activity occurring in some of the lease area and to restrict the renewal to a proposal for only ongoing monitoring and rehabilitation.
  11. [11]
    The second report of Mr Schy dated 11 November 2014 compiled in reliance upon that information identified a figure of $34,000 as being the appropriate compensation. That seems to be reflected in the compensation statement filed two days later.
  12. [12]
    Orders were made for further conduct of the matter on 20 November 2013 and on 9 October and 20 November 2014.
  13. [13]
    In the order of 20 November 2014 directions were given with respect to meetings proposed to be conducted between the valuers engaged by the parties. Those orders were in the following terms:

“1. The valuers engaged by the parties are to confer in the absence of their clients and instructing solicitors (at a time, place and in a manner agreed in consultation between them) and attempt to identify areas of agreement and disagreement between them.

  1. All things said and done in such conference shall be "without prejudice" until there is formal agreement or disagreement about an issue and when there is formal agreement or disagreement about an issue the valuers shall produce a joint report which:-

 (a) identifies in writing the matters on which they agree,

 (b) identifies in writing the matters on which they disagree and the reasons why they disagree.

The conference between the valuers shall be conducted in accordance with the provisions of Part 5 - Evidence - Division 2 Rules 23, 24, 24A, 24B, 24C, 24D, 24E, Meetings of experts and Division 3 evidence given by experts of the Land Court Rules 2000 save that the requirements of Rule 24E(2)(b) is not required to be complied with.

The joint report prepared by the valuers shall be delivered by the applicants to the Court on or before 4.00 pm 9 December 2014.”

  1. [14]
    The meeting between the nominated valuers took place on 24 November 2014 at Townsville.
  2. [15]
    Consequent upon that meeting a joint report was prepared and a copy, in accordance with the requirements of the order, was delivered to the Court by the solicitors for the applicant on 10 December 2014.
  3. [16]
    That report stated as follows:[3]

“On 24th November at 10:30am Mr Jim Lyons of Taylor Byrne Townsville and Mr Dennis Schy of HTW Townsville met on a ‘without prejudice’ basis to discuss the Land Court Order with the purpose of complying with the directive of the Court in an attempt to arrive at points of agreement and disagreement and to work through the points of disagreement to see if these points could be further resolved.

During the course of the meeting the various issues were discussed including land values, injurious affection; the long term impact upon grazing and other matters. After some deliberation and frank discussions; an agreement overall was reached.

It was agreed that under all headings the sum of $29,000 would appear reasonable and acceptable to both valuers as the sum payable for compensation on the amended application area made by Carpentaria Gold Pty Ltd. This sum of $29,000 is exclusive of professional fees and associated costs.”

  1. [17]
    It might be thought that that document settles the issue of compensation between the parties but that is apparently not so.
  2. [18]
    On 23 December 2014 a notice of change of solicitor was filed in the Court confirming that Emanate Legal had become solicitors for the respondents.
  3. [19]
    At the review of the matter in Brisbane on 22 January 2015 Mr Quayle, appearing for the respondents, was given leave to file and read an affidavit of Venesa Gleeson, a solicitor in the employ of Emanate Legal, sworn that day.
  4. [20]
    In that affidavit Ms Gleeson set out the history of her firm’s involvement on behalf of the Hoods.
  5. [21]
    In the course of that affidavit she stated as follows:

“7. Since assuming conduct of the matter for the Hoods, and notwithstanding that it has not yet received the file on the matter from the Hood's previous legal advisors, Emanate has conducted some preliminary inquiries and given some preliminary consideration to the joint valuation report. Those initial indications suggest that the aligned opinions of Mrs Schy and Lyons, recorded in the joint valuation report, do not reflect consideration of all of the matters that the Hoods would contend should be addressed in determining the proper amount of compensation payable.

  1. We have been instructed by Hoods to conduct more extensive investigations with the aid of Mr Geoff Eales (a valuer) and Mr Errol Briese (a hydrogeologist) and subject to the outcome of those further investigations, seek leave to adduce evidence from those experts in this proceeding.
  1. Urgent arrangements have been made for Mr Eales and Mr Briese to inspect the site in the week commencing 2 February 2015. Once they have made their inspections of the property they have indicated to me that they will be able to offer some more developed views about the matters within their areas of expertise. At that point the Hoods will be in a position to assess whether leave will need to be sought to adduce evidence from those experts.”[4]
  1. [22]
    In dialogue between Mr Quayle and myself during that review the following transpired:[5]

“His Honour: And Mrs [Gleeson’s] affidavit is in paragraph 7. And it rather looks like that the Hoods had engaged a valuer who’s participated in a without prejudice conference directed by this court and has reached an agreement with the valuer on other side. And your instructors now wish to resile from that agreement.

Mr Quayle: We would put it rather differently than that, your Honour.

His Honour:  How do you put it?

Mr Quayle:  This court ordered or directed that the valuers nominated by each of the parties ---

His Honour: Nominate?

Mr Quayle: Nominated by each of the parties.

His Honour: Yes.

Mr Quayle: Participate in a joint meeting. That occurred. The order also contemplated that a joint report would be generated. That has occurred. That joint report reflects no more than that the opinions of those two valuers align. There’s no binding agreement upon my client or, for that matter, my learned friend Mr Green’s. The ultimate determiner of the proper amount of compensation is, it’s trite to say, this court. And this court asks for and is given joint reports of this kind for no other purpose than to assist it in coming to the determination of a proper amount of compensation.

His Honour: But in that regard, Mr Quayle, isn’t it now a matter of evidence before this Court?  The two valuers have met and agreed that $29,000 is the appropriate amount of compensation.

Mr Quayle:  It may well be, your Honour. But that, with respect, does not resolve what the proper amount of compensation is. All it says it that two valuers come to a view that it’s that sum. It also does not, with respect, we would say, inhibit us if discretionary considerations allow, from – and leave is granted, from calling further evidence.

His Honour: But, Mr Quayle, the usual rule – and it’s really embodied in the UCPR – is that each party is entitled to one expert in any particular domain of expertise and that a second expert can only be allowed to give evidence with the leave of the court.

Mr Quayle: Yes, your Honour.

His Honour: And for that leave to be granted, good reason must be shown. And better reason than merely new legal advisers take a different view of how the compensation ought be determined or calculated, isn’t it?

Mr Quayle: Well, certainly, good reason needs to be shown why leave would be granted, your Honour.

His Honour: Well, do you ---

Mr Quayle: The primary - I’m sorry, your Honour.

His Honour: Do you say that Mrs Gleeson’s affidavit reveals good reason”

Mr Quayle: No. We don’t rely on that for leave, your Honour. Today we seek an adjournment, nor leave. What we propose, your Honour – what we indicate, no more, no less, by Ms Gleeson’s affidavit, your Honour, is that my instructors are new to the case. Their understanding of it is in its infancy. Preliminary inquiries have so far revealed that my client – and we would, with respect, think the court, too, might have some disquiet about the joint report in its present form. And my clients seeks an adjournment to further those investigations and commits that, as those investigations are advanced, if it is so advised  it will bring an application for leave. It doesn’t seek leave today, your Honour–”

  1. [23]
    Later I made the following observation to Mr Quayle:

“  …

His Honour: …  I think, Mr Quayle, you would glean my concern and some alarm at the notion that parties should engage a valuer, embark upon a without prejudice conference, deliver a joint report identifying an agreed amount of compensation, and then – however you wish to clothe it verbally – to step back from that valuation and to get another one or to add to it. And that’s where we’re going to have to investigate fairly carefully whether good reason has been shown why that should happen. And, indeed, why there should now be different valuers involved and an additional expert – Mr Briese is well known to this court – allowed to give evidence.

Anyway that’s some matter for the future. Mr Green, on the basis that all Mr Quayle seeks today is an adjournment – I’m not going to bind you because I’m going to give you an opportunity to speak to me about that. But that does not seem to be on first blush to be a sensible approach in the light of the now expressed views of the Hoods’ new legal representatives. What do you say about that?

Mr Green: Yes, your Honour. I accept that an adjournment may well be the outcome of today. The other matter that I had anticipated would be raised today was access to the court file by the respondent. I – am I now to understand that there is no problem with the respondent accessing the court file?”[6]

The Application

  1. [24]
    Subsequently, on 11 February 2015, the applicant filed a general application in the Court seeking the following orders or relief:

“1. The Respondents have leave to notify such further experts as they may be advised with the time for such notification to be the subject of further directions;

  1. The Respondents have leave to lead evidence from experts notified in accordance with Order 1;
  1. The Respondents pay the Applicant’s costs thrown away of the production of the joint report to be agreed or, if not agreed, to be assessed;
  1. Such other orders and directions as the Court considers appropriate.”
  1. [25]
    Within the application, the applicants say that it is based upon the following:

“1. On 20 November 2014, the Land Court made orders inter alia requiring (Order 2(b)) that the parties’ then nominated, valuation experts, Messrs Lyons and Schy, meet and prepare a joint expert report in accordance with the Land Court Rules 2000.

  1. The parties’ then nominated, valuation experts thereafter published a joint report dated 1 December 2014 (“the joint report”).
  1. On or about 24 December 2014, the Respondent engaged new lawyers and new experts to consider afresh the matters the subject of this proceeding and in particular the amount of compensation the Respondents are entitled to upon the renewal of ML 10170 (“the mining lease”).
  1. In light of the preliminary opinions expressed by the new experts engaged on their behalf the Respondents believe that:

 a. the sum of money referred to in the joint report does not represent the amount of compensation they are entitled to upon the renewal of the mining lease;

 b. the amount of compensation to which they are entitled is likely to exceed $800,000;

 c. either or both of Messrs Lyons and Schy, in reaching the opinions expressed in the joint report, did not take into consideration relevant matters, took into account irrelevant matters and proceeded on assumptions that were unfounded or incorrect;

 d. the amount of compensation to which they are entitled upon renewal of the mining lease cannot be determined unless they are given leave to call evidence from further experts;

 e. in the interests of justice they should be granted leave to call evidence from further experts.”

The Hearing

  1. [26]
    The hearing of the application took place in Brisbane on 28 April 2015 with Mr T Palmer of counsel appearing for Carpentaria Gold Pty Ltd and Mr PJ Dunning of Queens Counsel and Mr DA Quayle appearing for the respondents Mr and Mrs Hood.
  2. [27]
    The respondents read and relied upon the following material:
    1. a)
      General application filed 11 February 2015;
    2. b)
      Affidavit of Errol Haydn Briese filed 11 February 2015;
    3. c)
      Affidavit of Geoffrey William Eales filed 11 February 2015;
    4. d)
      Affidavit of Dr David Keith Rendell filed 16 February 2015;
    5. e)
      Affidavit of Venesa Gleeson filed 22 January 2015;
    6. f)
      Affidavit of Robert John McKenzie filed 11 September 2014; and
    7. g)
      Affidavit of Amy Gudmann filed 13 November 2014.
  3. [28]
    The joint report prepared by Messrs Schy and Lyons was tendered as an exhibit.[7]
  4. [29]
    The applicants read and relied upon the following material:
    1. a)
      An affidavit of Peter Alexander Beilby filed 5 September 2014;
    2. b)
      An affidavit of Jemma Elizabeth Rigg filed 3 November 2014 and;
    3. c)
      A copy of an Environmental Impact Statement prepared by the State of Queensland in respect of the Sarsfield Expansion Project.[8]
  5. [30]
    The parties had agreed, prior to the hearing, on a bundle of documents which were also tendered before the Court. That bundle of documents consisted of:

Exhibit Number

Document No.

Document

Date

3

1

Transcript of Proceedings

7 August 2014

4

2

Order

7 August 2014

5

3

Order

9 October 2014

6

4

Transcript of Proceedings

20 November 2014

7

5

Email to Expert:  Geoff Eales

19 January 2015

8

6

Transcript of Proceedings

22 January 2015

9

7

Email to Expert Errol Briese

23 January 2015

10

8

Email to Expert:  David Rendell

27 January 2015

11

9

Email to Expert:  Errol Briese

2 February 2015

12

10

Transcript of Proceedings

17 February 2015

13

11

Letter from Department of Natural Resources and Mines to Green Legal

13 April 2015

  1. [31]
    Of the various deponents only Mr Briese was required for cross-examination by the applicant. Mr Dunning QC did not require any of Mr Palmer’s deponents for cross-examination.
  2. [32]
    In anticipation of the cross-examination of Mr Briese a map of all of the leases which exist on Kirkton Station was tendered by Mr Palmer.[9]
  3. [33]
    An enlarged plan of the area affected by the mining lease was also tendered.[10]

The affidavit and evidence of Mr Briese

  1. [34]
    Mr Briese is a Groundwater Consultant and the Principal of Briese Groundwater Consulting.
  2. [35]
    As evidenced by his professional resume which was exhibited to his affidavit Mr Briese has extensive experience in the areas of hydrogeology and groundwater dating from as far back as 1971.
  3. [36]
    He had been retained by the respondents to provide a preliminary opinion about the impacts, if any, upon groundwater resources on Kirkton Station that he considered may have been causally related to the activities of the applicant on ML 10170.[11] 
  4. [37]
    The short report prepared by Mr Briese expressed the following opinion:[12]

“ Impact of Renewal of ML 10170 on Groundwater

Based on the DEHP Assessment Report which in turn is based on information provided by Carpentaria in their EIS and SEIS reports and on discussions with David Hood manager of "Kirkton", it is my opinion that:

  • The groundwater system has been significantly contaminated by the existing TSF[13] and WRD and this will be on going [sic];
  • The proposed Expansion Project (if it goes ahead), will have a compounding effect on groundwater contamination despite the proposal to HDPE line to proposed TSF and install groundwater recovery bores. The proposed IWRD will not be lined.
  • Seepage from the TSF and contamination of the groundwater system will continue for a period in excess of 40 years, 20 years during the proposed mining operations and based on Carpentaria modelling for at least 20 years post closure. Natural flushing of the contamination after seepage from the TSF ceases will take considerably longer.

Carpentaria have monitored the groundwater quality in "Kirkton's" Burnt Point Mill since April 2010 and provided the data to David Hood. The results indicate that sulphate concentrations generally exceed 2000mg/L. The ANZECC (2000)[14] guidelines state that "levels of sulphate greater than 2000mg/L may cause chronic or acute health problems in stock". This fact was obviously recognized by Carpentaria as they provided a piped water supply from the Burdekin River via the mine to the cattle trough at the mill. While this is an acceptable interim solution while the mine is in operation, groundwater contamination will remain long after the mine closes and the question must be asked who will operate and maintain the piped system post mining.

In summary groundwater in the aquifers on which "Kirkton" is reliant for stock water supplies has been significantly contaminated by the mining operations to a level where it can no longer be used for stock watering. This contamination will continue and remain well into the future.”

  1. [38]
    In his cross-examination of Mr Briese Mr Palmer was initially keen to establish that Mr Briese fully understood his obligations as an expert witness before a Court.
  2. [39]
    I am satisfied from the responses given by Mr Briese to the cross-examination of Mr Palmer that he did understand those professional obligations.
  3. [40]
    Mr Palmer then moved to explore the circumstances under which Mr Briese was given instructions to prepare the memorandum which was exhibited to his affidavit.[15]
  4. [41]
    The relevant part of the instructions provided to Mr Briese and the manners upon which Mr Palmer cross-examined him are as follows:
  • “consider the basis upon which the assessment of valuation required under the MRA, as regards to the renewal of ML10170 is incorrect, insofar as same impacts on groundwater, including long term impacts of possible/probable leaching of water from the tailings dam located on the Land into Hood’s bores, dams, creeks, aquifers and other such water sources on the Land
  • consider the correct basis upon which compensation in accordance with section 281 of the MRA in respect of the renewal of ML10170 should be assessed, taking into account any short/medium/long term impacts of the mining operation / rehabilitation will have on the Land and/or the business operation, in particular on the water sources relied upon
  • deliver a preliminary view (in conference) as to the prospects of success.”[16]
  1. [42]
    In the course of cross-examination Mr Palmer took Mr Briese to the affidavit of Peter Alexander Bielby.[17]
  2. [43]
    In that affidavit, in particular at paragraphs 25 and 26, it was revealed that far from maintaining an application for expansion of the Sarsfield project it was, as from 1 August 2014, unlikely that the Sarsfield expansion would generate a rate of return which would allow Carpentaria Gold to proceed with that aspect of its operation and, at paragraph 27, Mr Bielby deposed to the “almost” certainty that that Sarsfield expansion would not proceed and no expanded TSF would be constructed on ML 10170.
  3. [44]
    Those observations were reinforced by a statement exhibited to the affidavit of Jemma Elizabeth Rigg[18] to which was appended a document entitled “Substituted statement pursuant to S 286(2)(c) Mineral Resources Act 1989 concerning Mining Lease No. 10170 (Dated 28 October 2014)” in which, under the heading “The reason for seeking the renewal”, appears the following:

“The renewal of the mining lease is sought to allow for operational and rehabilitation requirements as part of the greater Ravenswood Project.

On the lease is a portion of the Sarsfield Mill and associated infrastructure and a Tailings Storage Facility (“TSF”) for the Ravenswood Project (Figure 1). There are also a number of seepage recovery sites, surface water monitoring sites and groundwater monitoring boards within the lease boundary, including monitoring sites mandated by the environmental authority EPML00979013 (formerly MIN102515111) (“EA”), which require ongoing monitoring.

It is anticipated that the rehabilitation requirements cannot be met within the proposed renewal terms of nine years and a further renewal will be required.”[19]

  1. [45]
    The point of that passage of cross-examination was to demonstrate that the current proposal by Carpentaria Gold does not contemplate an expansion of their mining operation on the subject lease but only contemplates ongoing rehabilitation activities particularly with respect to the TSF.
  2. [46]
    Throughout the course of his cross-examination of Mr Briese, Mr Palmer was at pains to distinguish between the contamination which may be accepted to be present on the site as a consequence of previous mining activities and any further contamination which might occur during the period of the extension of the lease.
  3. [47]
    In what I believe was a fair objection to Mr Palmer’s cross-examination theme Mr Dunning QC took objection and in doing so said:

“You'll see there that Mr Briese expresses his opinion in respect of three discrete issues:  the first is the existing groundwater contamination; the second is the expansion project ‑ and in terms he recognises that may not proceed; and the third discrete issue is the ongoing seepage.

Now, our learned friend, it seems, has been anxious to demonstrate, which we would've been happy to concede, the state of the evidence is that the lease presently is only sought for the purpose of managing his client's environmental obligations. Well, it was clear on the face of the document the witness appreciated that. And I'm reluctant to hurry my learned friend along; we've only got a day allocated for the hearing of this application and none of this seems to be directed at matters germane to that.”[20]

  1. [48]
    Mr Palmer sought to respond to that objection in the absence of the witness.
  2. [49]
    In the absence of the witness, Mr Palmer explained[21] that Mr Eales, the valuer nominated by the respondent, may have misunderstood the nature of the contamination which will result from an extension of the lease.
  3. [50]
    That does rather seem to me to be putting the cart before the horse in the sense that Mr Eales’ assessment of the appropriate compensation would seem likely to rely upon the assessment by Mr Briese of the nature of any contamination occurring during the period of the renewal of the lease, whether or not that contamination had arisen from previous activities or from the rehabilitation efforts which necessarily must be made during the period of the renewal or indeed continue to accrue during the time of the renewed lease.
  4. [51]
    Mr Palmer also somewhat vigorously cross-examined Mr Briese about impacts that were consequential upon the proposed Sarsfield expansion and those that arose from the Transitional Environmental Program (TEP) which had been enforced by the Department of Environment and Heritage Protection.[22]
  5. [52]
    I am satisfied that, in that context, much of the cross-examination by Mr Palmer related to matters that, should I allow the respondents to call the extra expert contended by them, will necessarily have to be ventilated and explored in some considerable detail in assessing the contamination impacts which are a consequence of the renewal of the mining lease.
  6. [53]
    I am equally satisfied that exploring those matters at this stage is somewhat premature and does not lead me to greater understanding of factors which need to be considered in deciding whether or not special circumstances have been demonstrated which warrant allowing the calling of an additional expert.
  7. [54]
    Issues will also arise as to whether the TEP mandated by the Department of Environment and Heritage Protection will achieve its ambitions and what will be the impact on the Hoods property of the operation of that TEP.
  8. [55]
    Unsurprisingly, once Mr Palmer had completed his cross-examination, Mr Dunning QC sought by re-examination to clarify the position with potential contamination even if, during the extended lease period, there was no expansion of operations onsite but only attention being paid to the TEP. 
  9. [56]
    As with the outcome of the cross-examination by Mr Palmer that re-examination, to my mind, focuses upon matters that will necessarily have to be addressed if leave is given to call the additional experts. It does not assist me with determining the present application.

The affidavit of Mr Eales

  1. [57]
    It is appropriate to comment upon the affidavit of Mr Eales, the registered valuer, now proposed to be relied upon by the respondent.
  2. [58]
    Mr Eales swore an affidavit but was not required for cross-examination by the applicant.
  3. [59]
    That does not mean that his evidence should be accepted uncommented upon.
  4. [60]
    In his affidavit Mr Eales deposes to having been provided with five documents upon the basis of which he formed a preliminary opinion about the appropriate quantum of compensation.
  5. [61]
    Those documents were:
    1. a)
      Taylor Byrne Pty Ltd (2 September 2014) “Compensation Assessment for Renewal of ML 10170 under Mineral Resources Act 1989, Part of Kirkton Station”.
    2. b)
      Herron Todd White (1 January 2012) “Valuation Report Part of Kirkton”.
    3. c)
      Joint Expert Report of the Valuers dated 1 December 2014.
    4. d)
      Affidavit of Errol Briese sworn 11 February 2015.
    5. e)
      Anecdotal information provided to me by the Respondents.[23]
  6. [62]
    Curiously Mr Eales’ affidavit deposing to his having formed a preliminary estimate was sworn on 11 February 2015 – the exact date upon which Mr Briese’s affidavit was also sworn.
  7. [63]
    The affidavit of Mr Briese contained a report dated 6 February 2015, so the possibility must be acknowledged that Mr Eales had an opportunity to look at that report sometime after 6 February and before he and Mr Briese each swore their affidavits.
  8. [64]
    Mr Eales’ affidavit contains the following:

“8. I have conducted my own investigations and based on those investigations and the material I have read, I am of the opinion that the following sums represent proper compensation in accordance with the Mineral Resources Act 1989:

(there then follows an iteration of various sections of the Mineral Resources Act and a conclusion that the total compensation assessed by Mr Eales is $923,010.

  1. [65]
    He then goes to say:

“9. Based on the information I have considered and the investigations I have conducted, my preliminary estimate of the value of compensation that should be paid to the Respondents for the renewal of the mining lease, is nine hundred and twenty three thousand and ten dollars ($923,010) together with the compensation identified at section 281(3)(a)(vi) of the MRA.

10 My assessment takes into account relevant considerations which were apparently not taken into account or were not adequately taken into account by the valuers in the Joint Expert Report dated 1 December 2014, in particular the ground water contamination issues as addressed in the affidavit of Mr Briese. Furthermore, my assessment reflects the diminution in the value of Kirkton Station as in my opinion is required by section 281(3)(a)(ii) of the Mineral Resources Act 1989.”[24]

  1. [66]
    It is noteworthy that nowhere in his affidavit does Mr Eales descend to identifying “the investigations I have conducted” or “relevant considerations which were apparently not taken into account or were not adequately taken into account by the valuers in the Joint Expert Report”.
  2. [67]
    In assessing the worth of the affidavit sworn by Mr Eales I should record that I have been significantly influenced by the very large sum i.e. in excess of $900,000, which is contended may be the appropriate compensation figure. That figure should be contrasted with the figure of $29,000 agreed between the experts in their joint report. If that figure is maintainable then, in my view, it may be a grave injustice to the respondents to refuse them leave to call the additional experts Mr Eales and Mr Briese.
  3. [68]
    If, on the other hand, leave is given and Mr Eales’ and Mr Briese’s evidence does not in a sense come up to proof and justify an award of damages in the vicinity of the sum currently contended for by the respondents, then that is a matter which may well sound in costs with respect to the cost of the hearing proper as distinct from any costs which are related to this present application and steps which have occurred and been wasted in the past.
  4. [69]
    In my assessment of Mr Eales’ evidence I have had in mind the observations of Brereton J in a NSW decision of Lucantonio[25] in which His Honour was considering the worth and admissibility of evidence of what a prudent legal practitioner would have done in circumstances relating to giving advice with respect to the purchase of land for development.
  5. [70]
    The parties, seeking to call evidence from a learned Queens Counsel, sought to rely upon that report as establishing what “an ordinary skilled barrister” would have appreciated or advised his clients.
  6. [71]
    In response to those contentions the representatives of one of the contradictor parties contended that that report from Queens Counsel ought not be admitted for three main reasons namely:

“First, that he is not qualified to give evidence of what other barristers would do, although he is admittedly expert in the relevant fields of practice; secondly, that he does not in his report identify the relevant assumptions as to the precise position in which [the barrister] relevant to what a barrister would or would not appropriately have done, so that it cannot be ascertained whether the opinion is based on the facts that will ultimately be found by the Court; and, thirdly, that he does not articulate the rationale for his opinion.”[26]

  1. [72]
    The Lucantonio case was one in which there was a claim for damages in respect of losses said to have been occasioned by the failure of a proposed acquisition of land for development, and of subsequent legal proceedings arising out of that attempted acquisition, alleging that those losses were caused or contributed to by the professional negligence respectively of an architectural consultant, a solicitor, and a barrister.
  2. [73]
    The present application is not a case of a claim for professional negligence but, in my view, the affidavit of Mr Eales may be seen as contending that there was a want of professionalism and prudent conduct by either or both of the valuers engaged for the purpose of the joint report.
  3. [74]
    Accordingly, I find the observations of His Honour Justice Brereton pertinent to the present case. In his decision, Brereton J identified a number of relevant principles which might be applied in a professional negligence case.
  4. [75]
    His Honour said:[27]

“With the benefit of the helpful submissions of Mr Ashhurst of Senior Counsel, for the third defendant, it is possible for present purposes to summarise the relevant principles as follows (extracted primarily from the following authorities: Fox v Everingham & Howard (1983) 76 FLR 170 at 178; Midland Bank Trust Co Ltd v Hett, Stubbs & Kemp (a firm) [1979] Ch 384 at 402; Permanent Trustee Australia Limited v Boulton Permanent Trustee Australia Limited (1994) 33 NSWLR 735, 738; Rebelais Pty Ltd v Cameron [1993] ANZ ConvR 457; O'Brien v Gillespie (1997) 41 NSWLR 549 at 557-558; MB v Protective Commissioner NSWSC 717 [2000] 217 ALR 631; Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; [2001] NSWCA 305; (2001) 52 NSWLR 705 [59], [71]):

  1. In a professional negligence case, expert evidence is admissible of an accepted or standard professional practice, conduct or standard. Expert evidence is also admissible of what is commonly considered professional practice of competent and careful professionals in the field.
  2. Expert evidence is not admissible of what the expert would himself or herself have done in the circumstances, at least if that evidence is tendered to support the inference that other careful and competent professionals would have done the same things professionally; nor is expert evidence admissible of what as a matter of law reasonable care is required; that is a question of law for the court and not for an expert.
  3. Expert evidence of what a competent and prudent practitioner would have done in the particular circumstances of the defendant is not admissible if, in effect, it is no more than one professional commenting on the conduct of another, at least in the absence of evidence that the expert has additional training, study or experience to demonstrate the acquisition of specialist knowledge of what a competent and prudent practitioner would do. However, expert evidence of what a competent and prudent practitioner would have done in certain circumstances may have been admissible if the witness has by training or experience such additional special qualifications or experience as to equip him or her to give evidence with competence of what the general body of competent and general practitioners would do.
  4. Where the expert witness does not sufficiently state the assumed circumstances of the defendant’s position on which the opinion is based, that may impact on the fairness to the defendant of admitting the evidence to such an extent as to warrant its rejection under (NSW) Evidence Act 1995, s 135, even if it is technically admissible.
  5. In any event, the expert must furnish the court with criteria enabling the evaluation of the expert’s conclusion, including its essential integers and rationale.
  6. Where the professional field in question is that of law, expert evidence is not essential to making (or for that matter defending) a case of professional negligence, because the court itself is sufficiently equipped to form an opinion about legal practice unaided by expert opinion. That is not to say that such opinion is inadmissible in such a case; to the contrary, it is admissible, but even where adduced it is not conclusive, and the court is entitled to decide the case contrary to expert evidence where appropriate to do so.”
  1. [76]
    Clearly the affidavit of Mr Eales is deficient in explaining how he reached the position which leads him to contend for compensation in excess of $900,000. The affidavit meets none of the criteria set out in His Honour’s judgment.
  2. [77]
    However I must accept that Mr Eales is a valuer of considerable experience, well known to this Court and expressing what he describes as only as a “preliminary” view. I have already commented above that a failure to produce a report which properly supports his preliminary view may expose his clients to significant costs risks down the line if the leave is granted.
  3. [78]
    Similarly while there are allegations that the valuer previously engaged to carry out the valuation exercise for the respondent failed to take into account contamination of groundwater, there is no evidence before the Court of what factors that valuer, Mr Schy, took into account or failed to take into account.

The affidavit of Dr David Keith Rendell

  1. [79]
    The respondents filed and read an affidavit of Dr David Keith Rendell, a veterinary consultant apparently located in Victoria. Dr Rendell reviewed a number of documents namely:
    1. a)
      A report from Charters Towers Veterinary Service dated 31 January 2013;
    2. b)
      Results of C & R Consulting Water Sampling dated 7 March 2013;
    3. c)
      Plan of operations of Mining Lease 10170.
  2. [80]
    Dr Rendell was not required for cross-examination.
  3. [81]
    As I read his report he says that the documents he read confirms that some cattle died as a consequence of nitrate toxicity. He says:

“The specific degree of role of the streamwater as a source of the nitrate has not conclusively been established. Based on the inconclusive evidence, the streamwater was at least a contributing factor, at worst it was the cause of the cattle deaths.[28] 

  1. [82]
    Dr Rendell’s affidavit goes on to say that the deaths of the cattle referred to were unusual and that they occurred close to mining operations was, in his opinion, a circumstance which required further investigation.[29]
  2. [83]
    I am at something of a loss to understand the relevance of Dr Rendell’s affidavit and no oral submissions were made with respect to it by the respondent.
  3. [84]
    The reports attached to the affidavit of Dr Rendell include a report dated 31 January 2013 from the Charters Towers Veterinary Service which identifies a number of dead cattle having been found on a property ten kilometres west of Ravenswood but does not identify the property as having been the respondent’s property Kirkton.
  4. [85]
    Attached to that report is a laboratory report from Biosecurity Queensland Veterinary Laboratories which does identify the property as being Kirkton Station but does not give a specific location on that station.
  5. [86]
    It is difficult to see how the affidavit of Dr Rendell strengthens the respondent’s application and certainly there is nothing in the material nor in submissions which would clearly warrant including Dr Rendell in any necessary leave to call extra expert evidence.
  6. [87]
    Based on the material appended to his affidavit, the very best Dr Rendell could do would be to produce a speculative conclusion based upon reports of water analysis, which themselves have appended explanations for elevated levels of nitrate and nitrite as potentially coming from a wide range of sources including vegetation and feed. I would regard such an exercise as entirely arid for the purposes of determining compensation for the presence of a mining lease.
  7. [88]
    The proposition that they do not need leave to call Dr Rendell is advanced by the respondents in their submissions[30] in which they say:

“It is also to be noted that neither the Respondent nor the Applicant has, in this proceeding, either by order or direction, been required to formally notify the experts on which they intend to rely. That is significant so far as it concerns Mr Briese and Dr Rendell. They are the only experts in their fields. The Respondents do not, in terms, require leave to lead evidence from those experts.”

  1. [89]
    That submission overlooks the terms of the order made by me on 9 October 2014 where at paragraph 2 the respondent was:

“To file and serve all of its expert reports by 4.00pm on 13 November 2014.”

  1. [90]
    No expert report was filed from Dr Rendell or any other veterinary expert. Accordingly, in my view, the respondents are in breach of the Court order and now require leave to identify other experts upon whom they wish to rely at the hearing of this matter.
  2. [91]
    Notwithstanding the existence of that order and the observations I make in the paragraphs above about the potential aridity or lack of utility involved in calling Dr Rendell it seems to me, having regard to the fact that it was only about five weeks after the time for compliance with that Order 2, that since the current solicitors for the respondents received instructions, there is a faint argument that they should be allowed adduce the evidence of Dr Rendell. If they are granted leave to do so however they place themselves at risk with respect to costs should be it be found that Dr Rendell’s report, assuming one will be forthcoming, does not provide any assistance to the Court in determining the appropriate amount of compensation.
  3. [92]
    No doubt it would be said by the respondent’s current solicitors that that was a failure by their predecessors.

The Land Court’s procedures and relevant law and cases

  1. [93]
    The statutory jurisdiction of this Court is established by the Land Court Act 2000 (LCA) and the Land Court Rules (LCR) promulgated pursuant to that Act.
  2. [94]
    Within the LCA there is no provision for the exchange of formal pleadings in matters before this Court.
  3. [95]
    Notwithstanding that absence of a formal provision for pleadings, s 4(1) of the LCR provides that where those rules do not provide for a matter and the Uniform Civil Procedure Rules 1999 (UCPR) do provide for a matter the UCPR apply with necessary changes.
  4. [96]
    In AON Risk Services Australia Limited v Australian National University[31] the Court had to consider a case where an application to amend a statement of claim made on the third day of a four week trial had been allowed and, in particular, to consider the relevance of case management principles to an application to amend.
  5. [97]
    The question also arose as to whether a party should be permitted to amend to raise arguable issues subject to the payment of costs. In the original decision, in which the trial Judge granted an application for adjournment of a trial to make substantial amendments to a statement of claim, the Judge’s reasons involved a number of considerations.
  6. [98]
    Of those considerations a matter of relevance to the present set of circumstances was that the trial Judge in AON Risk Services found that the decision of the High Court in Queensland v JL Holdings Pty Ltd[32] stood as authority for the proposition that:

“  ‘Justice is the paramount consideration’ in determining the application to amend.”[33]

  1. [99]
    That view with respect to the majority opinion in JL Holdings was also relied upon by the Court below the Court of Appeal of the A.C.T. upholding the granting of leave to amend but allowing the appeal insofar as was agreed unanimously that the costs of and thrown away by the amendments should have been awarded on an indemnity basis.
  2. [100]
    In the majority decision in the Court of Appeal of the Supreme Court of the A.C.T. the Court held, inter alia, that case management considerations, including the availability of Court resources, were not irrelevant, but the paramount consideration was:

“Justice as between the parties”.[34]

  1. [101]
    Before the High Court French CJ, with whom the other Judges did not disagree, observed:

“It appears that a factor in the decision of the primary judge and of the Court of Appeal was the decision of this Court in JL Holdings. That case arose out of an entirely different factual setting. However, to the extent that statements about the exercise of the discretion to amend pleadings in that case suggest that case management considerations and questions of proper use of court resources are to be discounted or given little weight, it should not be regarded as authoritative.”

  1. [102]
    My reading of all of the decisions in the AON Risk Services case lead me to the view that the current position in Australian Courts, having regard to that decision and its apparent disdain for some of the dicta contained in the JL Holdings case, is that case management issues are, along with other factors, a matter to be taken into account but are not necessarily the sole determinant of whether applications for amendments and/or adjournments ought be allowed but in some circumstances may be so.
  2. [103]
    Similarly the matter of justice being done between the parties is a highly relevant but not necessarily compelling matter to be weighed when considering an application for amendment or adjournment.
  3. [104]
    Another factor which emerges in the reading of the various decisions in the AON Risk Services case is that case management was not to be seen as an end in itself and the ultimate aim of any Court remains the attainment of justice.[35]
  4. [105]
    In that decision the following was said:

“Where a party had had a sufficient opportunity to plead his or her case, it may be necessary for the court to make a decision which may produce a sense of injustice in that party, for the sake of doing justice to the opponent and to other litigants.”[36]

  1. [106]
    Conias Hotels Pty Ltd (as trustee for The Conias Hotel Trust No. 2) v Shaughn Murphy & Ors[37] was a case in which an application had been made to appoint an expert in addition to the expert who had previously been appointed.
  2. [107]
    In that case a single expert had previously been appointed to consider the case of both parties.
  3. [108]
    The Conias Hotels case involved valuation of an attached bottle shop and the valuer previously appointed had taken the view that the premises located in Roma Street had no quantifiable value because there was some doubt as to whether, if an extant lease were terminated, there was any or no certainty of obtaining a replacement discount bottle shop tenant.[38]
  4. [109]
    In the course of his decision Applegarth J made the following observations, clearly apposite in the present case:[39]

“[5] It almost may be taken for granted that experts adopting the same methodology applied to the same facts and applying the same assumptions might come to different opinions, simply as a matter of professional judgment. On valuation issues, the mere fact that different experts come to different opinions simply identifies that, in many cases, there is a range of opinion within which the actual value of real property, a business or other thing can be legitimately arrived at.

[6] The fact that differences of opinion are not enough is established in authorities which include D v S [2009] QSC 446. And, as has been earlier said by Biscoe J in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] NSWLEC 282 at [33], "Large differences of opinion between valuation experts are, unfortunately, a common occurrence in this court. The solution does not lie in permitting the parties to call more valuation experts to join the fray."

[7] The principles governing the exercise of discretion to appoint another expert have been considered in other jurisdictions in connection with rules that are similar to our rules. Some of the authorities have been helpfully set out in the written submissions of the plaintiff from the previous hearing on 13 August 2012. As Beazley JA observed in Owners of Strata Plan 58577 v Banmor Development Finance Pty Ltd [2006] NSWCA 325 at [2], there needs to be a balance. On the one hand, one has to consider principles of case management and the need for expeditious resolution of disputes. On the other hand, one has to ensure, so far as possible, that disputes are resolved so as to provide justice according to law to the parties to the dispute.

[8] I respectfully adopt what was said by Lord Woolf MR in Daniels v Walker [2000] 1 WLR 1382 at 1387, and also what was said by Neuberger J, as his Lordship then was, in Cosgrove v Pattison [2000] All ER (D) 2007. Lord Neuberger's discussion of the issues is, with respect, illuminating and compelling, and I take it into account in circumstances in which the rules have as one of their objectives ensuring that a fair trial is assured, and that it may be necessary for a fair trial to allow a party to call an additional expert.”

And then later:

“  …  The court should only grant leave to adduce further evidence in the circumstances stated in the rule and if the interests of justice require it.”[40] 

  1. [110]
    Determination of this present application requires a consideration of the weight to be given to case management principles and the application of the rules relating to leave being granted to a party to call a second expert in an area in which another expert has already been engaged and, in the present case and more particularly, has participated in meetings and the production of a report with a similar expert engaged by the opposing party.
  2. [111]
    Determination of the application also, necessarily, devolves to the need to do justice in all of the circumstances to both parties.
  3. [112]
    In a NSW Supreme Court decision in 2009[41] Brereton J observed:

“It would entirely defeat the purpose of the expert conclave process, including the production of a joint report, to permit one of the parties now to adduce the evidence of a further expert witness, after the conclave has taken place and after the joint report has been prepared, to give an opinion contrary to at least some of those agreed to by some of the experts in the course of the conclave and joint report. The court manages closely the use of expert evidence. In this case, the purpose of the course of management adopted would be entirely frustrated if the plaintiff were now permitted to call a further expert witness who had not been involved in the conclave and the preparation of the joint report.”[42]

  1. [113]
    In the event His Honour rejected the tender of the reports by the additional experts.
  2. [114]
    It should be noted that, in that case, the second expert proposed to be called had been involved in drawing up plans which were the subject of litigation and in respect of which the Judge found that although the expert was undoubtedly qualified and experienced he would come to the case from the perspective of someone who drew the plans, rather than someone who was confronted with reviewing and interpreting plans drawn by another which would change the perspective of particular witness and would prima facie reduce the objectivity and value of his evidence.[43] 
  3. [115]
    In the present case regard must necessarily be had to the circumstance that, in assessing compensation for the presence of a mining lease on people’s property, the Court is confronted by what has been described in a number of cases as almost a resumption of the area of the land taken for the purposes of the mining lease for a limited period.[44]
  4. [116]
    That is the case here. Where a citizen is deprived of his or her land the Courts have laid down what is often referred to as the “liberal estimate” principle whereby a Court ought err on the side of generosity in assessing the compensation to be paid to the dispossessed owner.
  5. [117]
    Although the decision in AON overtakes the earlier decision in JL Holdings nothing I read in the AON decision can, in my opinion, be taken to have rejected the observations of Kirby J (as he then was) in the JL Holdings decision where he considered the factors that might tend to favour the extension of an indulgence to a party applying for it.
  6. [118]
    In JL Holdings His Honour said:[45] 

“5. Amongst considerations which may tend to favour the extension of an indulgence to a party applying for it are the following: that this is the only way in which the true issues and the real merits, factual and legal, can be litigated and artificiality avoided; that the oversight which occurred is adequately explained as, for example, that it arose out of sudden and unexpected events; that the proposed amendment is of considerable importance to the rights of a party, particularly where it provides a complete answer to a claim; that any fault is that of the party's legal representatives; that the oversight was wholly accidental; that it was simply the product of unavoidable human error or, possibly, the outcome of the application to the case of fresh legal minds who perceived an important new point; that cost orders or the imposition of other conditions could adequately rebalance the competing claims to justice; and that the hearing date is sufficiently in the future to permit a party to meet the amendment, taking into account any consequences for the gathering of fresh evidence, the conduct of discovery or like pre-trial procedures and the loss of assigned hearing dates. Departures from a court ordered timetable, whilst relevant, are not decisive. Such orders are the servants of justice. They are designed to enhance its achievement in a way that an inflexible application of rigid rules could prevent. Efficiency in the despatch of court lists can sometimes be purchased at too high a price, as the biographer of Lord Brougham vividly demonstrated.” 

  1. [119]
    I had the observations of Kirby J in mind when, in the course of submissions I asked Mr Palmer for the applicants:

“What do you say about – I’m looking at your paragraphs following 32 and, in particular, at 36 – the fact that the solicitors who engaged Mr Schy are not the solicitors currently acting for the respondents. And this seems to be a consequence of fresh minds applying themselves to the issues.”[46]

to which Mr Palmer replied:

“Well that’s a factual submission made from the bar table, really. I mean, there’s no evidence about that. The change of solicitors can mean one of – can mean – can go either way.”[47]

  1. [120]
    Mr Palmer referred me, in response to my inclination to the view that there may have been an explanation in the material filed before the Court that the solicitors most recently engaged by Mr and Mrs Hood had come to the view that the valuation outcome achieved by Messrs Schy and Lyons was inappropriate, to paragraph 40 of his outline of submissions in which the following appears:

“There is, however, material before the Court which suggests that the explanation for this Application is not that the Respondents passively followed their previous lawyers [sic] advice but rather that the Respondents after the expert conference the Respondents [sic] were dissatisfied with Mr Schy's expert opinion. In this regard, the letter of instruction sent to the Respondents' new valuer, Mr Eales, on 19 January 2015 stated the following:

Hood's Position

Notwithstanding an expert's duty to the Court, Hood is of the view that the position of its valuer:

  • is manifestly inadequate
  • is wrong
  • potentially negligent

As such, the valuer engaged by Hood's previous legal advisors must be removed as an expert and replaced.

To this end, Hood requests that Eales, provide the requested assessment so that a view can be formed as to the way forward.

  1. With due respect to Mr and Mrs Hood, it is not apparent that either of them is qualified to properly assess the opinion given by Mr Schy. If Mr Schy had overlooked something, a supplementary report might have been sought. To sack the existing expert while telling the new expert about your displeasure with the previous expert smacks of "expert shopping". Expert shopping is not a sufficient reason to give the leave sought: D v S [2009] QSC 446.”[48]
  1. [121]
    Mr Palmer had conceded that such a proposition could be contained within the affidavit of Venesa Gleeson filed 22 January 2015 which is quoted above in paragraph 21.
  2. [122]
    Mr Palmer drew the Court’s attention in his submissions (see paragraph 40 of those submissions quoted above) to the decision in D v S [2009] QSC 446. That was a case in which Margaret Wilson J dismissed an application for a party for proceedings brought under Part 19 of the Property Law Act 1974 (Qld) to have leave to rely upon the affidavit of an expert other than the single expert who had been appointed by a consent order.
  3. [123]
    The applicant in that case was caught by the provisions of r 429H(6) of the UCPR whereby, where parties jointly appoint an expert to give evidence on an issue, that expert is the only expert who may give evidence on the issue unless the Court orders otherwise.
  4. [124]
    In bringing the application the applicant in D v S relied upon UCPR r 429N(3)(a)(i) asserting that there was an expert opinion different from the first expert opinion that is or may be material to deciding the issue.
  5. [125]
    In refusing the application Margaret Wilson J said:

“Viewed objectively, there is not basis for questioning the impartiality of Mr Stanaway or the integrity of the instructing and reporting process. Special circumstances have not been made out.

I am not satisfied that the further opinion of Mr Iveson would be material to deciding the question of valuation. This is simply a case of the applicant having agreed to a joint valuation and then not liking the joint valuation she received. It is not necessary to ensure a fair trial of the proceeding that there be more than one expert on the value of the real estate. To allow the applicant to rely on the evidence of another expert in the circumstances would unnecessarily increase the costs of the litigation.”[49]

  1. [126]
    I note that in that decision Her Honour did not use the term “expert shopping” as attributed by Mr Palmer in his submissions.
  2. [127]
    Further, that decision makes clear that the circumstances of each case are relevant to the determination of whether an additional expert ought be allowed.
  3. [128]
    Mr Palmer also drew the Court’s attention, in his submissions, to the decision in Gallo v Department of Environment and Resource Management (No. 2)[50] where it was said:

“In the present case no sworn explanation was given by the respondent for the change from Mr Lait. It was easy enough for the respondent to have put in affidavit evidence explaining why the change was made. This knowledge lies in its possession and not that of the court or the other side. In the absence of a sworn (or any) explanation for the change, a court might be more inclined to find that it was simply expert shopping for a more favourable opinion. There is no magic in the number of experts required before one can be said to have expert shopped. A change from only one to one other might be enough depending on the circumstances.”

  1. [129]
    In this case, in my view, there is a sworn explanation provided by the solicitors for the respondents and by the experts Eales and Briese as to why there is desired to be a change in the identity of experts to be relied upon by the respondent.
  2. [130]
    That is not to say that I am completely convinced that the application by the respondents does not evidence some element of expert shopping.
  3. [131]
    In his submissions Mr Palmer also took issue with the failure by the respondents to seek leave to file an amended compensation statement pursuant to the practice direction of this Court.
  4. [132]
    Had it not been for the circumstance that the respondents have now engaged fresh solicitors that submission may have had some merit – although, for the reasons which I will explain later, perhaps not sufficient merit to override the clear mandate for this Court to attempt to do justice as between the parties.
  5. [133]
    Mr Palmer asserts in his written outline of submissions that these proceedings have reached an advanced stage. Accordingly, he says, it is indistinguishable from the circumstances in the AON Risk Services decision.
  6. [134]
    I do not accept that these proceedings have reached an advanced stage.
  7. [135]
    The only substantive orders made have been for the valuers to meet and attempt to identify areas of agreement and disagreement.
  8. [136]
    At a review of this matter on 9 October 2014 an order was made for the applicant to file and serve an affidavit setting out whether and when it intended to seek amendment of mining lease ML 10170 by 4pm on 31 October 2014.
  9. [137]
    That order followed some debate in Court about how the matter ought be moved forward.
  10. [138]
    Mr Green, the solicitor on record for the applicant, was in a difficult position because at that time apart from some information from Mr Green and the contents of an affidavit filed by Mr Beilby there had been no formal attempt by the applicant to seek an amendment of the terms of the lease so that the basis for any valuation exercise aimed at objectively determining what compensation should be paid was somewhat constrained. 
  11. [139]
    In compliance with that order an affidavit of Jemma Elizabeth Rigg was filed on 3 November 2014. I note in passing that that affidavit was three days later than required by the order.
  12. [140]
    Ms Rigg is the tenement manager of the Resolute Group which wholly owns Goudhurst which in turn wholly owns the applicant Carpentaria Gold Pty Ltd.
  13. [141]
    Ms Rigg deposed that on 30 October 2014 she had prepared and lodged with the Department of Natural Resources and Mines an amendment to the applicants application for renewal of ML 10170 which specifically omitted any reference to the project publicly known as Sarsfield Expansion.[51]
  14. [142]
    Accordingly, it was only after the precise nature of the reason for which the renewal of the lease was sought was clarified that any sensible assessment of appropriate compensation could be undertaken.
  15. [143]
    While there may be no formal pleadings I am satisfied that procedures such as a requirement on both parties to file and serve a compensation statement produces a result akin to pleadings which can be reinforced by reference to the UCPR requiring such things as:
    1. a)
      Responses to compensation statements;
    2. b)
      Witness statements;
    3. c)
      Conferences between expert witnesses which result in the production and delivery to Court of signed agreements setting out areas of agreement and disagreement and the reasons for any disagreement;
    4. d)
      Witness statements to be provided prior to the provision of hearing dates.
  16. [144]
    There is also to be taken into consideration the existence of the LCR.
  17. [145]
    In addition to that there is the recourse to the UCPR provided for in the Land Court Rules.
  18. [146]
    In CH4 Pty Ltd v The Minister for Natural Resources, Mines and Energy and Minister for Trade[52] His Honour Member Smith referred to the decision of Member Scott in Chief Executive, Department of Natural Resources and Mines v. Sabina Three Gorges Corporation who commented on the rules in these terms:

"These Rules read as a whole, communicate a comprehensive statutory structure which together with the Uniform Civil Procedure Rules 1999 which complement the Land Court Rules 2000 create a system for the pre-trial conduct of matters before the Court. In the case of the respondent's appeals, those Rules were relied upon and orders issued on 16 November 2000 with a view to exposing and narrowing the issues and in ensuring that neither party would be caught by surprise. This position may be contrasted with the position that obtained prior to the new Rules coming into effect where there were many occasions when success for one party depended to some extent on its capacity to ambush the other, the prevailing Rules being quite inadequate with respect to case management. In the circumstances of the enactment of the new Rules it must be appreciated by parties coming before the Court that, particularly in instances where parties are represented, the Court will be astute to utilise the Rules of the Court and to expect the parties to comply with orders made in reliance on the Rules."[53]

  1. [147]
    Those observations were cited with approval by His Honour Member Isdale in Toan Van Pham & Ors v Brisbane City Council[54] in his comments approving my dicta in the Cidneo case where His Honour observed that:

“This Court is concerned to ensure that its process enhances expedition and efficiency in dealing with the matter before it.”

  1. [148]
    In my view the matters set out in foregoing paragraphs clearly demonstrate that while this Court may not have a formal structure of pleadings as such it has sufficient procedures in place that one might find that there are “quasi pleadings” underpinning almost every action conducted in this Court.
  2. [149]
    Having regard to the orders that are normally made in matters such as the present and in other matters I have little difficulty coming to the view that this Court maintains a process of case management as that term has been used and contemplated in decisions like AON and JL Holdings.
  3. [150]
    The existence of case management might be seen as the “hand maiden” of the just administration of matters which come before this Court but it is not an immutable “set in stone” set of procedures which cannot, in appropriate circumstances, be varied or steered away from.
  4. [151]
    Orders frequently made by this Court include disclosure, further and better particulars, filing of expert witness statements, filing of statements of lay witnesses, conferences between experts to clarify issues in appeals and orders for further and better particulars. All of those orders, and others, constitute what I understand by case management setting as they do particular dates for compliance. There are also various practice directions which direct how matters which come before this Court will be progressed.
  5. [152]
    There is also, amongst the forms produced by this Court a Form 17 Request for Trial Date whereby parties who are ready for trial may prepare and sign a request for a trial date.
  6. [153]
    In the present case no request for a trial date had been lodged with the Court. That form of course reflects what is contained within Land Court Rule 34.

Conclusion

  1. [154]
    In coming to the conclusion in this matter I have had regard to the following factors which I regard as relevant:
    1. Granting of a mining lease over an area of freehold or leasehold land is akin to a resumption of that land for a period.
    2. The attitude of the Court to resumption of land in the hands of private individuals is to take a somewhat benevolent approach to questions of compensation.
    3. This matter is not at an advanced stage in terms of preparation for hearing.
    4. No application for a trial date has been submitted by either party.
    5. On the basis of Mr Eales’ presently unchallenged evidence there is a possibility that a refusal to allow the calling of additional expert evidence would wreak an injustice upon the respondents.
    6. The overriding principle, as I read all the relevant cases, seems to be to do justice as between the parties.
    7. Costs would seem to be an adequate remedy for the disamenity suffered by the applicant if leave is granted.
    8. The attitude of the current solicitors for the respondents reflects what I regard as the “application of fresh legal minds perceived an important new point” as that term was used by Kirby J in JL Holdings.[55]
  2. [155]
    I should acknowledge that there are counter-vailing considerations which I have also had to take into account, not the least of which are the limitations with respect to the evidence of Mr Eales. In Mr Eales’ report, in which, having regard to the principles identified by Brereton J in Lucantonio case referred to by me above, the reasons for the difference in opinion between him and Mr Schy are nowhere made clear in the material and further the basis for the opinions expressed by the respondents current solicitors are equally unidentifiable.
  3. [156]
    There is also the failure by the respondent to adduce any evidence from Mr Schy which makes clear what he did and what he did not take into account in coming to his agreed view with the opposing valuer as to the appropriate amount of compensation.
  4. [157]
    For the reasons set out above I have come to the view that leave should be granted to the respondent to adduce further expert evidence.
  5. [158]
    However, that is not an open-ended invitation to adduce enormous amounts of additional expert evidence.
  6. [159]
    In the material filed by the respondents they make clear reference to only three areas of expertise which seem to underpin their application.
  7. [160]
    Those areas of expertise are:
  1. a)
    The valuation evidence proposed to be adduced from Mr Eales.
  2. b)
    The hydrogeologist evidence proposed to be called from Mr Briese; and
  3. c)
    The forensic veterinary evidence proposed to be called by Mr Rendell.
  1. [161]
    No leave is granted for the respondent to call any other expert witnesses.
  2. [162]
    I have already observed above that some of the evidence proposed to be called by the respondents may expose them to applications for costs orders at the conclusion of the hearing of this matter.
  3. [163]
    Accordingly, the ORDERS which I propose are:

 1. The application is allowed.

 2. The respondent is granted leave to adduce further evidence from three additional expert witnesses namely the valuer Mr Geoffrey William Eales, the hydrogeologist Errol Haydn Briese and the veterinary consultant Dr David Keith Rendell.

  1. [164]
    The application as filed included seeking an order that the respondent pay the applicant’s costs “thrown away of the production of the joint report to be agreed, or if not agreed, to be assessed.”
  2. [165]
    I will hear from the parties with respect to the issue of costs and in particular:
  1. a)
    The ambit of any cost order which should be made including identifying work which may have been done which will now be rendered nugatory; and
  2. b)
    Whether any costs orders which may be made should be in a standard or some other basis.
  1. [166]
    I will also hear the parties with respect to what additional orders should now be made to bring this matter to a point where it is ready for the parties to file and request for a trial date.

WL COCHRANE

MEMBER OF THE LAND COURT

Footnotes

[1]  Affidavit of Amy Guddman sworn and filed 13 November 2014 paras 4 and 5, exhibits AG-1 and AG-2.

[2]  Affidavit of Jemma Elizabeth Rigg filed 3 November 2014, sworn 30 October 2014, exhibit JER-1.

[3]  Exhibit 1.

[4]  Affidavit of Venesa Gleeson paras 7-9.

[5]  T 1-5 L 35 – T 1-7 L 5.

[6]  T 1-7 L 17-35.

[7]  Exhibit 1.

[8]  Exhibit 2.

[9]  Exhibit 14.

[10]  Exhibit 15.

[11]  Affidavit of Errol Haydn Briese.

[12]  Affidavit of Errol Haydn Briese Exhibit EHB2 page 10.

[13]  TSF means Tailings Storage Facility.

[14]  Australian and New Zealand Environment and Conservation Council, Australian and New Zealand Guidelines for Fresh and Marine Water Quality (October 2000).

[15]  Affidavit of Errol Haydn Briese Exhibit EHB2.

[16]  Exhibit 9, page 1.

[17]  Affidavit of Peter Alexander Bielby pages 6-7 paras 25-27.

[18]  Affidavit of Jemma Elizabeth Rigg.

[19]  Affidavit of Jemma Elizabeth Rigg Exhibit JER1 page 7.

[20]  T 1-29 L 22 - 33.

[21]  T 1-31 L 6 - 13.

[22]  Affidavit of Jemma Elizabeth Rigg, Exhibit JER1 page 8; T 1-33 L 9 onwards.

[23]  Affidavit of Geoffrey William Eales, para 5.

[24]  Affidavit of Geoffrey William Eales, paras 8 – 10.

[25] Lucantonio v Kleinert [2009] NSWSC 853.

[26]  Ibid [7].

[27]  Ibid [8].

[28]  Affidavit of Dr David Keith Rendell para 4.

[29]  Affidavit of Dr David Keith Rendell para 5.

[30]  Respondent’s submissions para 23.

[31]  [2009] HCA 27.

[32]  (1997) 189 CLR 146.

[33] AON Risk Services [2009] HCA 27 [2].

[34] AON Risk Services Australia Ltd v Australian National University [2008] ACTCA 13 per Higgins CJ [10], per Penfold J [54] and Lander J [196].

[35] AON Judgment of Gummow, Hayne, Crennan, Kiefel and Bell JJ [94].

[36]  Ibid.

[37] Conias Hotels Pty Ltd v Murphy & Anor [2012] QSC 297.

[38]  Ibid [12].

[39]  Ibid [5] –[8] (emphasis added).

[40]  Ibid [10] (emphasis added).

[41] Lucantonio v Kleinert [2009] NSWSC 929.

[42]  Ibid [6].

[43]  Ibid [4].

[44]  See Smith v Cameron (1986) 11 QLCR 64 and Joyce v Northern Electric Authority of Queensland (1974) 1 QLCR 171.

[45] State of Queensland & Anor v JL Holdings Pty Ltd (1997) 189 CLR 146 per Kirby J, para 5 (emphasis added).

[46]  T 1–83 L 1–4.

[47]  T 1–83 L 6–9.

[48]  Applicant's Submissions paras 40 – 41.

[49] D v S [2009] QSC 446 page 1–8.

[50]  [2014] QLAC 11 [273] (citations omitted).

[51]  Affidavit of Jemma Elizabeth Rigg para 7.

[52]  [2010] QLC0037.

[53]  (Unreported, Land Court of Queensland, RP Scott Member, 12 April 2001) [16].

[54] Toan Van Pham & Ors v Brisbane City Council [2011] QLC 0038, [6].

[55] State of Queensland & Anor v JL Holdings Pty Ltd (1997) 189 CLR 146.

Close

Editorial Notes

  • Published Case Name:

    Carpentaria Gold Pty Ltd v Hood

  • Shortened Case Name:

    Carpentaria Gold Pty Ltd v Hood

  • MNC:

    [2015] QLC 36

  • Court:

    QLC

  • Judge(s):

    Member Cochrane

  • Date:

    08 Sep 2015

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Aon Risk Services Australia Limited v Australian National University (2009) HCA 27
4 citations
Jump To
Cite 1 - (2009) HCA 27
Cite 2 - (2009) HCA 27
Cite 3 - (2009) HCA 27
Cite 4 - (2009) HCA 27
AON Risk Services Australia Ltd v Australian National University [2008] ACTCA 13
1 citation
Jump To
Cite 1 - [2008] ACTCA 13
CH4 Pty Ltd v The Minister for Natural Resources, Mines and Energy and Minister for Trade [2010] QLC 37
2 citations
Jump To
Cite 1 - [2010] QLC 37
Cite 2 - [2010] QLC 37
Conias Hotels Pty Ltd v Murphy [2012] QSC 297
5 citations
Jump To
Cite 1 - [2012] QSC 297
Cite 2 - [2012] QSC 297
Cite 3 - [2012] QSC 297
Cite 4 - [2012] QSC 297
Cite 5 - [2012] QSC 297
Cosgrove v Pattison (2000) All ER D 2007
1 citation
Jump To
Cite 1 - (2000) All ER D 2007
D v S [2009] QSC 446
5 citations
Jump To
Cite 1 - [2009] QSC 446
Cite 2 - [2009] QSC 446
Cite 3 - [2009] QSC 446
Cite 4 - [2009] QSC 446
Cite 5 - [2009] QSC 446
Daniels v Walker [2000] 1 WLR 1382
1 citation
Jump To
Cite 1 - [2000] 1 WLR 1382
Fox v Everingham & Howard (1983) 76 FLR 170
1 citation
Jump To
Cite 1 - (1983) 76 FLR 170
Gallo v Department of Environment and Resource Management (No. 2) [2014] QLAC 11
2 citations
Jump To
Cite 1 - [2014] QLAC 11
Cite 2 - [2014] QLAC 11
Joyce v Northern Electric Authority of Queensland (1974) 1 QLCR 171
1 citation
Jump To
Cite 1 - (1974) 1 QLCR 171
Lucantonio v Kleinert [2009] NSWSC 853
4 citations
Jump To
Cite 1 - [2009] NSWSC 853
Cite 2 - [2009] NSWSC 853
Cite 3 - [2009] NSWSC 853
Cite 4 - [2009] NSWSC 853
Lucantonio v Kleinert [2009] NSWSC 929
3 citations
Jump To
Cite 1 - [2009] NSWSC 929
Cite 2 - [2009] NSWSC 929
Cite 3 - [2009] NSWSC 929
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
1 citation
Jump To
Cite 1 - (2001) 52 NSWLR 705
Makita (Australia) Pty Ltd v Sprowles (2001) NSWCA 305
2 citations
Jump To
Cite 1 - (2001) NSWCA 305
Cite 2 - (2001) NSWCA 305
MB v Protective Commissioner NSWSC 717 [2000] 217 ALR 631
1 citation
Jump To
Cite 1 - [2000] 217 ALR 631
Midland Bank Trust Co Ltd v Hett Stubbs & Kemp (1979) Ch 384
1 citation
Jump To
Cite 1 - (1979) Ch 384
O'Brien v Gillespie & Ors (1997) 41 NSWLR 549
1 citation
Jump To
Cite 1 - (1997) 41 NSWLR 549
Owners of Strata Plan 58577 v Banmor Development Finance Pty Ltd [2006] NSWCA 325
1 citation
Jump To
Cite 1 - [2006] NSWCA 325
Permanent Trustee Australia Ltd v Boulton (1994) 33 NSWLR 735
1 citation
Jump To
Cite 1 - (1994) 33 NSWLR 735
Rebelais Pty Ltd v Cameron [1993] ANZ ConvR 457
1 citation
Jump To
Cite 1 - [1993] ANZ ConvR 457
Smith v Cameron (1986) 11 QLCR 64
1 citation
Jump To
Cite 1 - (1986) 11 QLCR 64
State of Queensland v J L Holdings Pty Limited (1997) 189 CLR 146
4 citations
Jump To
Cite 1 - (1997) 189 CLR 146
Cite 2 - (1997) 189 CLR 146
Cite 3 - (1997) 189 CLR 146
Cite 4 - (1997) 189 CLR 146
Van Pham v Brisbane City Council [2011] QLC 38
2 citations
Jump To
Cite 1 - [2011] QLC 38
Cite 2 - [2011] QLC 38
Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] NSWLEC 282
1 citation
Jump To
Cite 1 - [2008] NSWLEC 282

Cases Citing

Case NameFull CitationFrequency
Kube v Sunshine Coast Regional Council [2017] QLC 482 citations
1

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