Fitzgerald v Struber[2015] QLC 46

LAND COURT OF QUEENSLAND

1. [1]
   These proceedings concern referrals to the Land Court by the Department of Natural Resources and Mines (DNRM) pursuant to s 279(5) of the Mineral Resources Act 1989 (MRA) for the determination of compensation in respect of the grant of mining leases.

Background

2. [2]
   The applicant, Kay Frances Fitzgerald (the miner) seeks the grant of 3 leases located on land described as Lot 14 on SP250040.  This property, known as Palmerville Station is owned by the respondents Stephen Struber and Dianne Wilson Struber (the landowners). 
3. [3]
   Lot 14 is located in the Cook Shire Local Government area and is currently used for grazing purposes. 
4. [4]
   The specific Land Court references and individual lease and tenure details are set out as follows: 

Relevant Legislation

5. [5]
   Section 279 of the MRA provides that a mining lease shall not be granted or renewed unless an agreement in relation to compensation has been filed or, in the absence of such an agreement, a determination of compensation has been made by the Land Court.  In this matter, no agreement has been lodged with the DNRM and the matter was referred to the Land Court for determination.
6. [6]
   Section 281 of the MRA identifies the matters which must be considered by the Court in determining the compensation.  In particular, s 281(3)(a) provides that an owner of land is entitled to compensation for:

1. “(i)
   deprivation of possession of the surface of land of the owner;

2. (ii)
   diminution of the value of the land of the owner or any improvements thereon;

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

4. (iv)
   severance of any part of the land from other parts thereof or from other land of the owner;

5. (v)
   any surface rights of access;

6. (vi)
   all loss or expense that arises; as a consequence of the grant or renewal of the mining lease.”

7. [7]
   Section 281(4) enables various additional factors to be included in the compensation determination.  In the present case, only paragraph (e) is relevant.  It provides as follows:

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

2. (e)
   an additional amount shall be determined to reflect the compulsory nature of action taken under this part which amount … shall be not less than 10% of the aggregate amount determined under subsection (3).”

8. [8]
   The assessment to be undertaken in accordance with s 281 has been addressed in the judgement in Wills v Minerva^[1] as follows-

“It is beyond question as I have written above that the primary source of law is the statute under consideration and it seems to me that the learned Member acknowledged this when he said:

‘The section in my opinion merely identifies matters which shall be taken into consideration in making the assessment. It does not prescribe a method of valuation.’

Section 281 MRA neither prescribes nor suggests a method of assessment or valuation either. The selection of an appropriate method is a matter for the relevant expert, however, there is one warning that I should post. If the expert was to approach the assessment of compensation by simply accumulating figures assessed independently under each of the items listed in s.281(3)(a)(i) to (vi) and without regard to the prospect of a matter being dealt with under more than one item, the chance that there will be a duplication of items assessed will be high.”

The Conduct of the Proceedings and Evidence

9. [9]
   On 4 November 2014 (MRA 481-14) and 20 November 2014 (MRA 497 & 498-14), the Land Court registry wrote to the parties setting out a timetable for the delivery of materials and submissions in accordance with Land Court Practice Direction No 5 of 2013. 
10. [10]
    On 14 November 2014 a letter containing the following extract was received via facsimile from the landowners:

“FITZGERALD

We will attempt to comply with the timeline provided.

We are not sure on what basis you wrote to us at PO Box 2500, Cairns. We have never informed the Land Court of Queensland that this is our address for correspondence with the Court. Please direct any future correspondence to us using our fax on #### ####^[2] (after ringing that number first to allow us to turn on the generator). We are frequently away from the house during the day, and find that most people have success in trying to reach us at about 6.00 am or 7.00 pm on any given day.”

11. [11]
    On 20, 21 and 24 November 2014 registry staff attempted to call the landowners by telephone.  On each date the phone was not answered and messages were left requesting the landowners to contact the Land Court.  No phone calls were received by the Land Court from either landowner subsequent to these dates.  
12. [12]
    On 2 December 2014, email correspondence was received from Claire Mackney of Australian Mining and Exploration Title Services (AMETS) attaching correspondence to the Court and also attaching correspondence forwarded to landowners C/ Bottoms English Lawyers dated 16 May 2014.  The correspondence to the Court was copied to the landowners at PMB 14 Cairns Qld 4871.
13. [13]
    Further efforts during 2015 to contact the landowners in the manner suggested by them were also unsuccessful.  Registry staff attempted to arrange for the provision of documents via a legal representative who was representing Mr Struber in respect of other matters.  This attempt was unsuccessful.
14. [14]
    On 4 August 2015 the Registrar of the Land Court, after becoming aware that the landowners had been sentenced to life imprisonment by the Supreme Court in Cairns wrote to the Public Trustee of Queensland^[3] to advise of the present litigation.
15. [15]
    On 25 August 2015, email correspondence from the Official Solicitor to the Public Trustee (the Official Solicitor) advised the Land Court that documentation in relation to these proceedings could be served upon the Official Solicitor. 
16. [16]
    On 26 August 2015, registry staff forwarded to the Official Solicitor all material that had been received by the Land Court subsequent to the referral by DNRM.
17. [17]
    On 25 September 2015 following a request by the Official Solicitor, an extension for the filing of additional material was granted until 30 October 2015.  This date was extended to 30 November 2015 after a further request by the Official Solicitor.
18. [18]
    On 26 November 2015, a hand written submission was received on behalf of the landowners.  The two page submission expresses concerns over the service of documents and alleged non-compliance with the Mineral Resources Act 1989 and the Environmental Protection Act 1994 (the EPA). 
19. [19]
    The present referral by the Chief Executive DNRM to the Land Court pursuant to s 279(5) MRA pertains only to the determination of compensation.  Accordingly, the Court in only able to determine compensation in accordance with s 281 MRA.
20. [20]
    Allegations of non-compliance during the application process are not that are able to be adjudicated upon pursuant to the present referral.  Any concerns held by the landowners may be referred to the Department of Natural Resources and Mines for further action if necessary. 
21. [21]
    No further submission or material in addition to that already provided by AMETS was received from or on behalf of the Miner. I therefore consider it appropriate to proceed to determine the issue of compensation pursuant to s 281 of the MRA.

Determination

22. [22]
    Given the likely costs involved, it is unsurprising that the parties have not provided valuation or other expert evidence in support of their respective positions.  In Unimin Australia Limited v Freeman^[4], Member Jones [as he then was] made the following observation regarding the nature of the determination process in circumstances where limited material is provided:

“I realise that my determination of compensation in this case is the result of little more than calculated guesswork or speculation. However, in circumstances where the parties have elected to provide little or no material to the Court concerning their position about compensation there is not much more that the Court can do.”

23. [23]
    Neither party has provided detailed submissions addressing the matters set out in s 281(3) MRA.
24. [24]
    In the circumstances. I consider that the most useful guidance for the determination process is provided by several judgements following contested proceedings where the assessment of compensation was determined on submissions and evidence that had been the subject of cross examination or where the Land Court as constituted had undertaken site inspections within the Palmerville Holding.
25. [25]
    The most helpful decision concerning the Palmerville Holding is the judgement in Fitzgerald & Anor v Struber & Anor^[5].  This determination involved multiple miners including the present applicant Kay Frances Fitzgerald.  Land Court Member PA Smith assessed compensation in respect of mining areas at an annual rate of $10/ha and access areas at $5/ha. 
26. [26]
    In the more recent case of Eacham Abrasive Blasting Pty Ltd v Gundersen & Anor^[6], Member PA Smith also allowed the sum of $10/ha per year for the area covered by mining and $5/ha per year for access in respect of a renewal of a mining lease in the Mareeba District.  It is apparent from the Land Court records that Member PA Smith has, in addition to these cases, also undertaken site inspections and other determinations in respect of mining operations within the Palmerville Holding.
27. [27]
    The relevant dimensions and areas and final determinations in respect of each lease are set out as follows:

ML 20741

On the evidence before me ML 20741 comprises an area of 6.4734 ha.  I will round this area to 7 ha for determination purposes.  Mapping provided by the Department of Natural Resources and Mines indicates that access to ML 20741 will be via an access track 489 m in length and 10 m wide.  For the purposes of this determination the area of the access track will be rounded to 1 ha.

ML 20744

The mining lease area of ML 20741 is 3.0557 ha.  For assessment purposes this area will be rounded to 3 ha.  Mapping and data provided by the Department of Natural resources and Mines indicates that the access to ML 20744 is approximately 2.7 km in length and 10 m in width.  The access area of 2.7 ha will be rounded to 3 ha for the purposes of this determination.

ML 20738

28. [28]
    For ML 20738 the mining lease area is 16.2117 ha which I will round to 16 ha for determination purposes.  The relevant access is 3.18 km in length and 10 m in width giving a resultant area of 3.18 ha which I will round to 4 ha for the purposes of this determination.
29. [29]
    In respect of the each mining lease the following determinations are considered fair and reasonable and are set out as follows:

ML20741

Area covered by mining lease 7 ha @ $10 per ha =    $70.00 per annum

add access of approximately 1 ha @ $5 per ha =      $5.00 per annum

add s 281(4)(e) re compulsory nature of grant =    $10.00 per annum

Total               =    $85.00 per annum

ML20744

Area covered by mining lease 3 ha @ $10 per ha =    $30.00 per annum

add access of approximately 3 ha @ $5 per ha =    $15.00 per annum

add s 281(4)(e) re compulsory nature of grant =      $5.00 per annum

Total                 =    $50.00 per annum

ML20738

Area covered by mining lease 16 ha @ $10 per ha =   $160.00 per annum

add access of approximately 4 ha @ $5 per ha =     $20.00 per annum

add s 281(4)(e) re compulsory nature of grant =     $20.00 per annum

Total                  =   $200.00 per annum

30. [30]
    In view of the landholders present circumstances I intend to order that the compensation determined be paid to the Public Trustee of Queensland. 

Orders

1. In the case of ML 20741 compensation is determined in the total sum of $85.00 per annum.
2. In the case of ML 20744 compensation is determined in the total sum of $50.00 per annum.
3. In the case of ML 20738 compensation is determined in the total sum of $200.00 per annum.
4. The miner pay compensation to the Public Trustee of Queensland on behalf of the landowners in the amounts set out in orders 1 to 3 within two months from notification of the issue of the mining lease by the Department of Natural Resources and Mines and thereafter on the anniversary of the renewal of the mining lease.

GJ SMITH

JUDICIAL REGISTRAR