Fitzgerald v Struber[2016] QLC 6

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 (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 Lease 20746.  The referral was filed in the Land Court on 16 April 2015.

Background

2. [2]
   The applicant, Dennis Bernard Fitzgerald (the miner) seeks the grant of a mining lease located on land described as Lot 14 on SP 250040.  The Mining Lease Area comprises of 11.1 ha and a 500 m access track within Palmerville Station which is owned by the respondents Stephen Struber and Dianne Wilson-Struber (the landowners). 
3. [3]
   The property is located in the Cook Shire Local Government area and is used for grazing purposes. 
4. [4]
   The specific Land Court reference and tenure details are set out as follows: 

5. [5]
   On 18 November 2014 a Certificate of Application for Mining Lease 20746 was issued by the Mining Registrar at Mareeba.

Relevant Legislation

6. [6]
   Section 279 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 DNRM and the matter has been referred to the Land Court for determination.
7. [7]
   Section 281 MRA identifies the matters which must be considered by the Court when determining 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;

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

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

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

1. (v)
   any surface rights of access;

1. (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 was discussed in Wills v Minerva Coal Pty Ltd ^[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 20, 21 and 24 November 2014, registry staff attempted to make contact with the landowners by telephone regarding several unrelated referrals that were then before the Land Court pursuant to the MRA.  The calls were to request the landowners to activate their facsimile machine in order to enable documentation to be transmitted.  The landowners had earlier suggested that this approach be adopted for the provision of documents to them.  On each date the phone was not answered so messages were left requesting the landowners to contact the Land Court.  No phone calls were subsequently received by the Land Court from either landowner. 
11. [11]
    On 22 April 2015, 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. 
12. [12]
    On 21 May 2015 a submission on behalf of the miner was filed by Australian Mining and Exploration Title Services (AMETS).
13. [13]
    No material was received by the Land Court from the landowners in accordance with the timetable set out in the correspondence from the Court dated 22 April 2015.
14. [14]
    Further attempts during the first half of 2015 to contact the landowners were not successful.  Registry staff also attempted, unsuccessfully, to arrange for the provision of documents via a legal representative who was at that time 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 at 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 filed on behalf of the landowners.  The five page document addressed a variety of issues additional to the determination of compensation pursuant to s 281 MRA.  These issues largely related to the service/provision of documents and alleged non-compliance with processes associated with the Environmental Protection Act 1994 (EPA) and the MRA.
20. [20]
    The referral by 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 that determination pursuant to s 281 MRA.
21. [21]
    Issues associated with alleged non-compliance are not matters that the Court can consider as part of this referral. Concerns held by the landowners may be referred to DNRM or the Department of Environment and Heritage Protection for further action if necessary.
22. [22]
    No further 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 MRA.

Determination

23. [23]
    Neither party has sought to rely upon valuation or other expert evidence in support of their contended positions.  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 in respect of the determination for ML 20746 that “compensation for mining leases and access remain the same as determined by the Member of the Land Court for Mrs K Fitzgerald”.  Although no judgment reference was provided, the suggested amounts of $50 per kilometre for access, $20 per hectare in respect of the area of the mining lease and a one-off $500 fee correspond with orders made by the Land Court in Fitzgerald & Anor v Struber & Ors^[4].  As I am not aware of similar orders being made in any other judgment involving Palmerville Station, I can only conclude that this is the case to which the submission refers.
25. [25]
    I am unable to accept this submission by the landowners, as the judgment indicates that the orders made did not require an evidence based assessment to be undertaken by the Court as “the determination reflects dollar figures agreed between the parties”^[5].
26. [26]
    An additional contention by the landowners was that a “one off” $500 fee in respect of “checking numerous documents and other issues” should be included in the determination on the basis that “native title have a fee of $500 minimum fee for areas up to 50 ha…”.  In the absence of more specific details I am unable to include this amount in the current determination. 
27. [27]
    The following contention was included in the material filed on behalf of the miner by AMETS:

“The mining activities will be alluvial and ground disturbance will be kept to a minimum and progressively rehabilitated. We refer to the decision^[6] for the file MRA022-14 for mining lease 20712 held by Kay Francis Fitzgerald, wife of Denis, and ask that the Land Court use this as a basis for compensation determination….” 

28. [28]
    This amount contended for on behalf of the miner seems quite reasonable when considered in light of the submissions and the factors set out in s 281 MRA.  However, in the absence of valuation or other expert evidence, I will also consider additional relevant Court determinations. 
29. [29]
    In the circumstances, I consider the most helpful guide for determining compensation are Land Court judgments based on evidence tested by cross examination, full submissions and where the Court as constituted had inspected Palmerville Station.
30. [30]
    The most informative judgment for this purpose is Fitzgerald & Anor v Struber & Anor^[7]. This proceeding involved multiple applicants and the current landowners as respondents.  Member PA Smith determined compensation in respect of the mining lease area at an annual rate of $10/ha per annum and the access area at $5/ha per annum. In a later case of Eacham Abrasive Blasting Pty Ltd v Gundersen & Anor^[8], Member Smith allowed the sum of $10/ha per annum for the area covered by the mining lease and $5/ha per annum for access in respect of the renewal of a mining lease in the Mareeba District. In a more recent decision, Wallace & Ors v Bottomer & Ors^[9], Member Smith also determined compensation for the mining area of a renewed lease in the Mareeba district at $10/ha per annum.
31. [31]
    Based on the preceding judicial determinations of compensation I consider that $10/ha per annum in respect of the mining area and $5/ha per annum in respect of the access area is an appropriate amount of compensation in this matter.

ML 20746

32. [32]
    The determination of compensation in respect of proposed ML 20746 concerns both mining lease and access areas. Mapping data provided by DNRM confirms that the area of the mining lease is 11.1 ha with an access track approximately 500 m in length and 10 m in width.  For the purposes of this assessment I will round the mining lease area to 11 ha and the access area to 1 ha.
33. [33]
    The final determination in respect of ML 20746 is set out as follows:

Area covered by mining lease – 11 ha @ $10/ha  =  $ 110.00 per annum

Area covered by access – 1 ha @ $5/ha  =  $     5.00 per annum

add s 281(4)(e) re: compulsory nature of grant  =  $   15.00 per annum

Total       =  $ 130.00 per annum

34. [34]
    In light of the duration of the term of the mining lease and the amounts assessed I intend to order that the compensation determined be adjusted in accordance with the Consumer Price Index in each subsequent year of tenure.
35. [35]
    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 respect of ML 20746 compensation is determined in the total sum of $130.00 per annum for the first year and that sum as adjusted in accordance with the Consumer Price Index in each subsequent year of the tenure.

2. The miner pay compensation to the Public Trustee of Queensland on behalf of the landowners 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