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Murray v Darcey[2015] QLC 43

LAND COURT OF QUEENSLAND

CITATION:

Murray v Darcey [2015] QLC 43

PARTIES:

James Allen Harold Murray

(applicant)

 

v

 

Kevin Peter Darcey

(objector)

FILE NO:

MRA226-15

DIVISION:

General Division

PROCEEDING:

Application for the grant of a mining lease and objection thereto

DELIVERED ON:

26 November 2015 [ex tempore]

DELIVERED AT:

Brisbane 

HEARD ON:

26 November 2015

HEARD AT:

Brisbane

MEMBER:

PA Smith

ORDER:

Recommendation made that MLA 20755 be rejected.

CATCHWORDS:

MINING – mining lease application – no appearance by applicant – failure by applicant to comply with Land Court orders

MINING – objection – failure by objector to comply with Land Court orders

OBJECTIONS – failure by applicant to respond to any of the objections

Mineral Resources Act 1989

APPEARANCES:

No appearances by either party

SOLICITORS:

N/A

  1. [1]
    On 14 July 2015, the acting principal mining registrar, Department of Natural Resources and Mines, Mineral Assessment Hub, referred the question of the grant of mining lease application 20755 (MLA20755) to the Land Court, as there had been an objection lodged pursuant to the provisions of the Mineral Resources Act 1989 (the MRA) to the grant of MLA20755.
  2. [2]
    MLA20755 has been applied for by James Allen Harrold Murray. The mining lease has been applied for a period of 10 years, over an area or 20 hectares, and is sought for the mining of granite. The MLA is located 10 kilometres northwest of Herberton. The background land tenure for MLA20755 is a leasehold tenure held by Kevin Peter Darcey. It is Mr Darcey who lodged an objection to the grant of MLA20755 on 9 June 2015.
  3. [3]
    Mr Darcey’s objection is in the following terms:

“ML 20755 is situated in my horse paddock 06190472 and is situated in the only gap in the hills that allow access from the river. Which is the only permanent water source to the country beyond witch is dry most of the year. My paddock fence goes right through the MLA and I need access. The amended access proposed is unsuitable right through my mustering camps + horse paddock and goes into very rough contry, witch if desturubed would erode for years to come. Shiffron Rd which is already gazetted has a good cement causeway river crossing and comes within 400 mts of the MLA. Although over grown is still visible if you look around the eastern end of IMPH 40893. I used this access when building the boundary fence witch runs through the MLA. Shiffon Rd access although still rough is a much gentler grade than the western side witch is very rough + steep. I don’t see why Mr Murray needs more access when he lives on Lot 14H6713 witch boundarys on to the MLA and is the best access to that area. The hole M.L.A. and access needs investigation and inspection including the amended access. Also the reason for the MLA is suspect.”

  1. [4]
    Following receipt of the referral of the MLA and the objection, the Land Court, adopting its usual practices, wrote to Mr Murray and Mr Darcey, advising them of the referral of MLA20755, and also advising that the matter was listed for a directions hearing on 5 August 2015. The Land Court letter to both parties was dated 21 July 2015.  On 3 August 2015 Mr Darcey provided a completed Form 10 to the Land Court advising that he wished his objection to be dealt with as a Level 1 pursuant to Land Court Practice Direction 7 of 2013. There was a difficulty however as Mr Darcey’s election of Level 1 was inconsistent with his objection which sought an inspection of the MLA and access area.
  2. [5]
    On 4 August 2015 – that is, the day before the scheduled directions hearing – the Deputy Registrar of the Land Court, Mr Grodecki, attempted to make contact with both Mr Murray and Mr Darcey by telephone. Unfortunately, Deputy Registrar Grodecki was unable to make contact with either Mr Murray or Mr Darcey, but he was able to access voicemail services for each of them, and he left each a message on voicemail. When the matter was called on, on 5 August 2015, there was no appearance by either Mr Murray or Mr Darcey, despite the best efforts of Deputy Registrar Grodecki to contact both parties by telephone.
  3. [6]
    In light of the non-appearance of both parties, the Court made the following orders on 5 August 2015:

“1. The miner is to file in the court and serve on the objector a detailed response to all points of objection made by the objector, with reference to such affidavit evidence as is necessary by 4:00 pm on 4 September 2015.

  1. The objector is to confirm in writing filed in the court and served on the miner whether the objector wishes the court to dispense with an inspection of the Mining Lease Area in light of the miners extra material and in light of the objectors Level 1 objection by 4:00pm on 21 September 2015.
  1. The miner is to respond to the objectors material by 4:00pm on 28 September 2015.
  1. Each party must advise the Court and each other in writing by 4:00pm on 6 October 2015 if they wish the matter to be dealt with on the papers without an oral hearing.”
  1. [7]
    That same day, 5 August 2015, Deputy Registrar Grodecki wrote to both parties, enclosing a copy of the orders of the Court made on 5 August 30 2015. Mr Murray failed to file in the Court any detailed response to the points of objection made by the objector by 4 pm on 4 September 2015, as required by order 1 of the orders of 5 August 2015. Mr Murray still has not filed any material in the Court in compliance with order 1. Mr Darcey has failed to file in the Court any response to the Court’s order number 2 of 5 August 2015 by 4 pm on 21 September 2015, and has, up until the date of this recommendation, failed to comply with order 2 of 5 August 2015. Further, no party has complied with the Court order number 4 of 5 August 2015 and, for completeness, Mr Murray has not complied with order 3 of the orders of 5th August 2015.
  2. [8]
    In light of the failure of the parties to comply in any way at all with the Court orders of 5 August 2015, and their total lack of any attempt to respond to any contact made by the Land Court,[1] on 27 October 2015 I caused the following orders to be made:

“1. The matter is listed for a further directions hearing at 10:00 am on 23 November 2015.

  1. Unless either party seeks orders to the contrary at the directions hearing on 23 November 2015, the matter is listed for hearing at Brisbane at 10:00 am on 26 November 2015.
  1. The failure of any party to attend the directions hearing or the hearing will not preclude the Court from proceeding to make any such recommendation to the Minister that the court considers appropriate, based on the material that the Court has before it in the referral mineral.”
  1. [9]
    That same day, 27 October 2015, Deputy Registrar Grodecki provided a copy of the orders of 27 October 2015 to both parties by mail. When the matter was called on for further directions at 10 am on 23 November 2015 there was no appearance by either Mr Murray or Mr Darcey. The attempts of Deputy Registrar Grodecki to contact both parties by telephone during the open court sittings of the directions hearing were also without success. In short, the Court has been unable to make any verbal contact with either Mr Murray or Mr Darcey at any time in this matter.
  2. [10]
    Both Mr Murray and Mr Darcey have failed to comply with all orders made by the Land Court. They have both also failed to respond in any way to any of the correspondence provided by the Land Court save for Mr Darcey returning the Form 10. None of the correspondence provided to them by the Land Court has been returned to the Land Court as unclaimed mail. In these circumstances, it is exceedingly difficult for the Land Court to proceed. However, the Land Court is under a statutory obligation to conduct a hearing and to make a recommendation to the Honourable the Minister responsible for the MRA as to whether or not it is appropriate to grant MLA 20755 and, if it is considered appropriate to grant MLA 20755, whether such grant should be made on any specified special conditions.
  3. [11]
    I view the failure by Mr Murray and Mr Darcey to comply with any orders of the Land Court; to appear at any of the directions hearings or the hearing of this matter, or to return any telephone calls; as quite intolerable. Dealing first with Mr Darcey, he has not attempted in any way to prosecute his objections before the Court following the Court’s advice relating to the inconsistency of his objection seeking an inspection and his desire to be a Level 1 objector.  However, as a matter of law, the Court must still take into account the objection that he has lodged.
  4. [12]
    The key concern that I have in this matter, however, rests with the mining lease applicant, Mr Murray. It is Mr Murray who is seeking the grant of MLA 20755. It is clearly in his interests to have the objections of Mr Darcey dealt with and this Court make a recommendation to the Honourable the Minister for the MRA in favour of the grant of MLA 20755. It is virtually beyond comprehension that Mr Murray has undertaken absolutely no step whatsoever to in any way to seek the grant of the MLA 20755.
  5. [13]
    I am required by s 269(4) of the MRA to take into account various factors when considering my recommendation to the Honourable the Minister. Section 269(4) is in the following terms: 
  1. (4)
    The Land Court, when making a recommendation to the Minister that an application for a mining lease be granted in whole or in part, shall take into account and consider whether—
  1. (a)
    the provisions of this Act have been complied with; and
  1. (b)
    the area of land applied for is mineralised or the other purposes for which the lease is sought are appropriate; and
  1. (c)
    if the land applied for is mineralised, there will be an acceptable level of development and utilisation of the mineral resources within the area applied for; and
  1. (d)
    the land and the surface area of the land in respect of which the mining lease is sought is of an appropriate size and shape in relation to—
  1. (i)
    the matters mentioned in paragraphs (b) and (c); and
  1. (ii)
    the type and location of the activities proposed to be carried out under the lease and their likely impact on the surface of the land; and
  1. (e)
    the term sought is appropriate; and
  1. (f)
    the applicant has the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease; and
  1. (g)
    the past performance of the applicant has been satisfactory; and
  1. (h)
    any disadvantage may result to the rights of—
  1. (i)
    holders of existing exploration permits or mineral development licences; or
  1. (ii)
    existing applicants for exploration permits or mineral development licences; and
  1. (i)
    the operations to be carried on under the authority of the proposed mining lease will conform with sound land use management; and
  1. (j)
    there will be any adverse environmental impact caused by those operations and, if so, the extent thereof; and
  1. (k)
    the public right and interest will be prejudiced; and
  1. (l)
    any good reason has been shown for a refusal to grant the mining lease; and
  1. (m)
    taking into consideration the current and prospective uses of that land, the proposed mining operation is an appropriate land use.
  1. [14]
    I now turn to consider, in short, each of the provisions of s 269(4).

269(4)(a): The provisions of this Act have been complied with.

  1. [15]
    The provisions of the MRA include the hearing of objections by the Land Court. Mr Murray has failed to attend the hearing and has failed to cooperate in any way with any of the orders made by the Land Court or to respond to any of the messages left by the Land Court on his telephone voicemail. From the material provided by the Mineral Resources Hub, it would appear that the technical requirements for lodgement of MLA 20755 have been complied with; however, it is a factor which this Court cannot ignore that the miner has failed to attend the hearing of this matter as required by the MRA or to offer any excuse to this Court for his non-attendance at the hearing.

269(4)(b): The area of land applied for is mineralised or the other purposes for which the lease is sought are appropriate.

  1. [16]
    Mr Murray lodged with the Mineral Resources Hub the Land Court form 9 on which he confirmed that the land applied for in MLA 20755 is mineralised; however, the objection by Mr Darcey also stated that “the reason for the MLA is suspect”.

269(4)(c): If the land applied for is mineralised, there will be an acceptable level of development and utilisation of the mineral resources within the area applied for.

  1. [17]
    The form 9 provided by Mr Murray explains that “the proposed development level is within the Small Scale Mining Guidelines. Mineral will be used for building.” There is no other explanation as to how there will be an acceptable level of development and utilisation of the mineral resources within the area applied for.

269(4)(d): The surface area of the land is of an appropriate size and shape.

  1. [18]
    It would appear that issues relating to the surface area of MLA 20755 and the access thereto are disputed by Mr Darcey. Mr Murray has provided no real evidence to show why the size and shape of the MLA is appropriate.

269(4)(e): The term sought is appropriate.

  1. [19]
    Mr Murray has applied for MLA 20755 for a term of 10 years. He has stated in his form 9 that there is sufficient mineral, which is visible by eye, for the mining lease to outlast the 10-year term.

269(4)(f): The applicant has the necessary financial and technical capabilities to carry on the mining operations.

  1. [20]
    Mr Murray indicated in attachment 15.1 to MLA20755 that he had paid all upfront fees for the application, and that the operation of mining would not require the outlay of much more funds, and that he had all necessary tools and equipment for the proposed mining operation. Mr Murray also indicated that he believed there was a “very profitable market for these rocks”.

269(4)(g):  The past performance of the applicant has been satisfactory.

  1. [21]
    The form 9 provided by Mr Murray shows that he has never had any rectification notices of non-compliance, show cause notices, tenures cancelled, or penalty imposed, or conviction under the MRA.

269(4)(h): any disadvantage to the holder of existing MRA tenements.

  1. [22]
    There is nothing in the material to show any disadvantage to any holders of other MRA tenements.

269(4)(i): sound land use management.

  1. [23]
    There is a conflict in the evidence, such as it is, of Mr Murray, and the objection of Mr Darcy as to whether the grant of MLA20755 would conform with sound land use management.

269(4)(j): any adverse environmental impact.

  1. [24]
    There has been no objection by any person to the draft environmental authority issued with respect to the mining operations to be carried on under MLA 20755.

269(4)(k):  The public right and interest will be prejudiced.

  1. [25]
    There is nothing contained within the objection of Mr Darcy that would show any prejudice to the public right and interest.

269(4)(l): any good reason for a refusal to grant the mining lease.

  1. [26]
    In my view, the failure of Mr Murray to respond in any way to any of the approaches made by the Land Court and voice mails left by the Land Court; to respond in any way to any of the correspondence provided by the Land Court; to comply in any way with any of the orders made by the Land Court; and the failure of Mr Murray to appear at any of the directions hearings or final hearing of this matter causes me great alarm and concern as to the likelihood of Mr Murray complying with any of his future legal requirements under the MRA.
  2. [27]
    I do not consider it appropriate, given his failure to take even the most rudimentary of steps in the Land Court to seek the grant of MLA20755, that it is appropriate that MLA20755 be granted.

269(4)(m): is the proposed mining operation an appropriate land use?

  1. [28]
    Given the failure of Mr Darcy and Mr Murray to provide any additional evidence to this Court, or to respond in any way to any of the Court orders, it is not possible to further comment, save for comments that I have made above, as to whether the proposed mining operation is an appropriate land use.
  2. [29]
    Having carefully considered all of the factors to be taken into account under s 269(4) of the MRA, and, in particular, noting the abject failure of Mr Murray to take any part whatsoever in these referral proceedings before the Land Court, in my view, this Court is left with no option other than to recommend to the Honourable the Minister responsible for the MRA that the application for mining lease 20755 be rejected. I recommend accordingly.

Order

Recommendation made that MLA 20755 be rejected.

PA SMITH

MEMBER OF THE LAND COURT

Footnotes

[1] Save for Mr Darcey faxing the Form 10 to the Land Court on 3 August 2015.

Close

Editorial Notes

  • Published Case Name:

    Murray v Darcey

  • Shortened Case Name:

    Murray v Darcey

  • MNC:

    [2015] QLC 43

  • Court:

    QLC

  • Judge(s):

    PA Smith

  • Date:

    26 Nov 2015

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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