Thomsen v Struber[2015] QLC 47

LAND COURT OF QUEENSLAND

1. [1]
   These proceedings concern a referral to the Land Court by the Chief Executive, Department of Natural Resources and Mines pursuant to s 279(5) of the Mineral Resources Act 1989 (MRA) for the determination of compensation in respect of the grant of mining lease 20735.

Background

2. [2]
   The applicant, Luke Roy James Thomsen, (the miner) seeks the grant of mining lease ML 20735.  Access to this lease traverses 13.2 km over land described as Lot 14 on SP250040.  This property, known as Palmerville Holding 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 used for grazing by the landowners. 
4. [4]
   The specific Land Court references and individual lease and tenure details are set out as follows: 

5. [5]
   On 22 July 2014 a Certificate of Public Notice and a Certificate of Application were issued by the Mining Registrar at Mareeba in respect of proposed ML 20735.

Relevant Legislation

6. [6]
   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 Department of Natural Resources and Mines (DNRM) and the matter has been referred to the Land Court for determination.
7. [7]
   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.”

8. [8]
   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).”

9. [9]
   The assessment to be undertaken in accordance with s 281 has been examined by the judgment 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

10. [10]
    On 24 November 2014, 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. 
11. [11]
    On 23 January 2015 the material proposed to be relied upon by the miner was received by the registry by email from Australian Mining and Exploration Title Services (AMETS).  This material included the following:

1. (i)
   correspondence dated 23 January 2015 from Claire Mackney (AMETS)
2. (ii)
   extract from The Express newspaper advertisement dated July 30 2014.
3. (iii)
   a letter and attachments to the landowners c/ English Bottoms Lawyers dated 23 July 2014.
4. (iv)
   a with compliments note from Bottoms English, Lawyers advising that the firm did not hold instructions to accept service of documents on behalf of the landowners.

12. [12]
    The correspondence referred to from Claire Mackney (AMETS) dated 23 January 2015 was addressed to the landowners and contained the following:

1. (i)
   Certificate of application
2. (ii)
   Certificate of Public Notice
3. (iii)
   Copy of Application
4. (iv)
   Graphic Plot
5. (v)
   Copy of email confirming draft environmental authority.

13. [13]
    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.   The purpose of these calls was to request the landowners to activate their facsimile machine in order to enable the provision of relevant documentation.  The landowners had earlier suggested this approach be adopted for the provision of documents.
14. [14]
    Further efforts during 2015 to contact the landowners were to no avail.  Registry staff also unsuccessfully attempted to arrange for the provision of documents via a legal representative who was then representing Mr Struber in respect of other matters.
15. [15]
    During the latter part of July 2015 the Land Court became aware that the landowners had been sentenced to life imprisonment by the Supreme Court in Cairns.  The Registrar of the Land Court wrote to the Public Trustee of Queensland^[2] on 4 August 2015 to notify of the present litigation.
16. [16]
    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. 
17. [17]
    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.
18. [18]
    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.
19. [19]
    On 26 November 2015, a hand written submission was received on behalf of the landholders.  The six page submission addresses a variety of issues in addition to the determination of compensation pursuant to s 281 MRA.  These issues largely concerned the service of documents and alleged non-compliance issues associated with the Environmental Protection Act 1994 (EPA), MRA and associated application processes.  The submission states “The non-compliance issues need to be resolved by a member of the Land Court before compensation determined”.
20. [20]
    The referral by the Chief Executive DNRM to the Land Court pursuant to s 279(5) MRA relates only to the determination of compensation and consequently the jurisdiction of the Court is limited to the determination of compensation pursuant to s 281 MRA.
21. [21]
    The issues concerning alleged non-compliance of themselves are not matters that the Court can consider as part of this referral.  Concerns held by the landowners may be referred to the Department of Natural Resources and Mines for further action if necessary
22. [22]
    No additional material or submission has been received from the Miner and in the circumstances I consider it is appropriate to proceed to determine the issue of compensation pursuant to s 281 of the MRA.

Determination

23. [23]
    Given the potential costs involved it is understandable that neither party has sought to rely upon valuation or other expert evidence.  In such cases the observations of  Member Jones [as he then was] regarding the nature of the assessment process in Unimin Australia Limited v Freeman^[3], are relevant:

“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.”

24. [24]
    The landowners contend that the compensation determination should “remain the same as determined by the Member of the Land Court for Mrs Fitzgerald”.  While no judgment reference was provided, the suggested amounts of $50 per kilometre for access plus a one off $500 fee correspond   with orders made by Member Cochrane in Fitzgerald & Anor v Struber & Ors^[4].  As I am not aware of similar orders being made in any other judgment involving the Palmerville Station, I can only conclude that this is the case to which the submission refers.
25. [25]
    I am unable accept this submission or adopt the suggested orders as the relevant decision did not involve an evidence based assessment by the Court as the “determination reflects dollar figures agreed upon by the parties^[5]”.  It was also contended by the landowners that a one off $500 fee was supported by the fact that a similar fee had been payable in the course of a native title claim over the Palmerville Station.  In the absence of more detailed evidence, I am not able to include any “one off” fee in respect of “document checking and other issues” in this determination.
26. [26]
    On behalf of the Miner the following submission was provided by Ms Mackney of AMETS:

“As the matter is for access traversing Palmerville Station and not for mining activities, we ask the court to consider the compensation as determined under file MRA941-11 for ML 20677 which is now held by Luke with ML 20668. The access sought for the new application is traverses the same route and the leases are to be worked as a project”

27. [27]
    Although the proceedings^[6] referred to in the AMETS submission determined compensation at Nil, I am unable to accept that contention in respect of the current determination.  The relevant judgment was effectively uncontested as a consequence of the landowners’ failure to appear.  A similar contention was made, but not accepted in Kelly v Struber & Ors^[7].  Accordingly I am not able to accept this contention and determine compensation at Nil as urged by the AMETS submission.
28. [28]
    In the absence of valuation or other expert evidence, I consider that the most appropriate guidance for determination is provided by several contested judgments which relied on evidence tested by cross examination and where the same Land Court Member had also inspected the Palmerville Holding.
29. [29]
    The most instructive decision is Fitzgerald & Anor v Struber & Anor^[8].  These determinations involved multiple applicants and the current landowners as respondents.  Member PA Smith determined compensation in respect of mining areas at an annual rate of $10/ha and access areas at $5/ha.  In the more recent decision of Eacham Abrasive Blasting Pty Ltd v Gundersen & Anor^[9], 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 the renewal of a mining lease in the Mareeba District.  It is apparent from many Land Court decisions that Member PA Smith, in addition to these cases, has also undertaken site inspections and made repeated determinations in respect of mining operations within the Palmerville Holding.

ML 20735

In this case, compensation relates only to access across the Palmerville Holding.  Mapping provided by the Department of Natural Resources and Mines confirms that access is as detailed in the landowners submission, namely 13.2 km in length and 10m wide.  For the purposes of this determination the area of the access track will be rounded to 14 ha.

30. [30]
    The relevant dimensions, areas and final determination in respect of ML 20735 is set out as follows:

Area covered by access 14 ha @ $5 per ha  = $70.00 per annum

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

Total               = $ 80.00 per annum

31. [31]
    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 20735 compensation is determined in the total sum of $80.00 per annum.

2. The miner pay compensation to the Public Trustee of Queensland on behalf of the landowners in the amount set out in order 1 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