McClymont v Solar Silicon Resources Group Pte Ltd
[2016] QLC 67
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- Unreported Judgment
- McClymont v Solar Silicon Resources Group Pte Ltd[2016] QLC 67
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McClymont v Solar Silicon Resources Group Pte Ltd[2016] QLC 67
McClymont v Solar Silicon Resources Group Pte Ltd[2016] QLC 67
LAND COURT OF QUEENSLAND
CITATION: | McClymont v Solar Silicon Resources Group Pte Ltd [2016] QLC 67 |
PARTIES: | Malcolm Ian McClymont (applicant) |
| v |
| Solar Silicon Resources Group Pte Ltd – Controller Appointed – LHM Finance Pty Ltd ACN 603 396 265 (respondent) |
FILE NO: | MRA228-16 |
DIVISION: | General Division |
PROCEEDING: | Hearing of general application |
DELIVERED ON: | 10 November 2016 |
DELIVERED AT: | Brisbane |
HEARD ON: | 5 October 2016 |
HEARD AT: | Brisbane |
MEMBER: | WA Isdale |
ORDERS: |
|
CATCHWORDS: | ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – TITLES – RIGHTS, PERMITS, LICENCES AND LEASES ETC. – EXTRACTION TITLES – OTHER MATTERS – where the applicant seeks a review of compensation payable to him under a mining lease – where the applicant also seeks relief for alleged trespass or nuisance by the respondent – where the respondent seeks orders striking out the claims for trespass or nuisance – where the respondent seeks summary judgment dismissing the applicant’s claims for trespass or nuisance – where the respondent seeks summary judgment dismissing the applicant’s claim for a review of compensation Mineral Resources Act 1989, ss 281, 283, 363 Land Court Act 2000 Land Court Rules 2000 Uniform Civil Procedure Rules 1999, ss 171, 293 Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 ERO Georgetown Gold Operations Pty Ltd v Henry [2015] QLAC 4 Legend International Holdings Inc v Taylor Aly Awaditijia & Anor (2013) 34 QLCR 447 Hicks & Anor v Graham & Anor (2004) QLRT 47 Henry v ERO Georgetown Gold Operations Pty Ltd [2015] QLC 13 Reardon & Anor v Deputy Commissioner of Taxation (2013) 275 FLR 9; [2013] QCA 46 Rich v CGU Insurance Ltd [2005] 79 ALJR 856 |
APPEARANCES: | EJ Morzone instructed by Emanate Legal for the applicant MG Lyons instructed by McCullough Robertson for the respondent |
Background
- [1]On 20 June 2016 the applicant filed an originating application seeking a review of compensation payable to him as the owner of land upon which the respondent has the benefit of a mining lease (ML). Also sought is relief for alleged trespass or nuisance.
- [2]On 19 August 2016 the respondent filed a general application. At the hearing it sought summary judgment in the compensation matter and that the tort claims be struck out, with leave to re-plead. The Court is now considering the general application.
The respondent’s submissions
- [3]The respondent has brought the general application so it is useful to consider the submissions made in support of it first.
- [4]The respondent holds ML 30209, which was granted on 2 April 2009. It covers part of the property called Rosella Plains. On 15 September 2011 the respondent lodged a mining lease application (MLA) 30230 which covers a larger area of Rosella Plains and extends on to Red Rock, which adjoins Rosella Plains to the south.
- [5]On 14 January 2013 the respondent entered into a compensation agreement with the then lessee of Rosella Plains. On 15 May 2014 the applicant became the lessee of Rosella Plains.
- [6]The applicant brought an originating application on 20 June 2016 seeking orders pursuant to s 363 of the Mineral Resources Act 1989 (MRA) restraining the respondent from carrying out activities outside of ML 30209 and to rehabilitate any disturbance outside of the mining lease. It also seeks relief for the torts of nuisance or trespass. Additionally, or in the alternative, the applicant seeks a review of the compensation payable to it on the basis contained within s 283B of the MRA.
- [7]Section 283B of the MRA is in the following form:
283B Review of compensation by Land Court
- (1)This section applies if –
- (a)compensation has been agreed under section 279 or 280 or determined under section 281 or 282 for a mining lease (the original compensation); and
- (b)there has, since the agreement or determination, been a material change in circumstances for the mining lease.
Example of a material change in circumstances—
a different mining method that changes the impact of mining operations under the lease
- (2)The mining lease holder or any owner in relation to the mining lease mentioned in section 279(1)(a) or 280(1) may apply to the Land Court for it to review the original compensation.
- (3)Sections 281(3) to (7), 282 and 282A apply, with necessary changes, to the review as if it were an application under section 281(1).
- (4)The Land Court may, after conducting the review, decide to confirm the original compensation or amend it in a way the Land Court considers appropriate.
- (5)However, before making the decision, the Land Court must have regard to—
- (a)the original compensation, other than any part of it that consists of an additional amount under section 281(4)(e); and
- (b)whether the applicant has attempted to mediate or negotiate an amendment agreement for the original compensation; and
- (c)any change in the matters mentioned in section 281(3) and (4) since the original compensation was agreed or determined.
- (6)If the decision is to amend the original compensation, the original compensation, as amended under the decision, is for this Act, other than this section, taken to be the original compensation.
- [8]The words in s 283B(1)(b) are the core of the provision. The respondent’s general application, if successful, would obtain summary judgment in the compensation matter and the striking out of the claims of trespass and nuisance, although allowing leave for them to be re-pleaded.
- [9]The respondent acknowledges that there are no provisions in the Land Court Act 2000 or the Land Court Rules 2000 providing for summary judgment or striking out claims. Rule 4 does however, provide that where the Land Court Rules do not provide for a matter in a proceeding and where the Uniform Civil Procedure Rules 1999 (UCPR) would provide for it, those rules apply, with necessary changes.
- [10]Rule 293 of the UCPR provides that:
293 Summary judgment for defendant
- (1)A defendant may, at any time after filing a notice of intention to defend, apply to the court under this part for judgment against a plaintiff.
- (2)If the court is satisfied –
- (a)the plaintiff has no real prospect of succeeding on all or a part of the plaintiff’s claim; and
- (b)there is no need for a trial of the claim or the part of the claim;
the court may give judgment for the defendant against the plaintiff for all or the part of the plaintiff’s and claim may make any other order the court considers appropriate.
- [11]There is no notice of intention to defend in the Land Court so it is submitted that this step is not necessary here. Concerning what the Court is required to be satisfied of, reference was made to Deputy Commissioner of Taxation v Salcedo[1] which emphasised the need for the Court to see whether there is a realistic rather than a fanciful prospect of success.
- [12]The power to strike out is said to be found in rule 171 of the UCPR. There are no pleadings in the Land Court so this rule is also sought to be applied with necessary changes. It provides that:
171 Striking out pleadings
- (1)This rule applies if a pleading or part of a pleading –
- (a)discloses no reasonable cause of action or defence; or
- (b)has a tendency to prejudice or delay the fair trial of the proceeding; or
- (c)is unnecessary or scandalous; or
- (d)is frivolous or vexatious; or
- (e)is otherwise an abuse of the process of the court.
- (2)The court, at any stage of the proceeding, may strike out all or part of the pleading and order the costs of the application to be paid by a party calculated on the indemnity basis.
- (3)On the hearing of an application under subrule (2), the court is not limited to receiving evidence about the pleading.
- [13]
“Under r 171(1) of the UCPR, the Court’s power to strike out pleadings involves the exercise of a broad discretion. That discretion should only be exercised where the pleading is obviously untenable and, conversely, it should not be exercised except in clear cases.” (citations omitted)
- [14]The learned President immediately went on to add:[3]
“Further, s 7(b) of the Land Court Act provides that the Land Court must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms or the practice of other courts. While that provision does not relieve this Court from its obligation to apply strict principles of law, where that is clearly the intent of a statute, in certain cases there remains scope for the Court to adopt a broad approach of common sense and common fairness. In Townsville City Council v Department of Main Roads, Keane JA said that a provision such as s 7(b) must be given effect and there is support for the view that the inclusion of such a provision widens rather than restricts the discretion available to a decision maker.” (citations omitted)
- [15]The respondent identifies the four things which the applicant’s application relies on to justify a review of compensation. They are:
- Mining activity outside of the ML;
- Accommodation facilities outside of the ML;
- Waste water dam outside of the ML;
- A north – south haul road outside of the ML.
- [16]The respondent has filed, on 19 August 2016, an affidavit by Mr Patrick Finlay Brophy, the site senior executive of the mine on ML 30209. The effect of his affidavit is that the dam, workers accommodation and haul road were established between 2008 and 2011. The then lessees of Rosella Plains, once aware of these matters, consented to what had occurred due to the actions of a contractor. The consent was obtained verbally from one of the two brothers who were then the lessees of Rosella Plains. Mr Brophy’s affidavit explains that the mining operations ceased in October 2012 and the mine has been in care and maintenance since then.
- [17]The compensation agreement with the then lessees of Rosella Plains was entered into on 14 January 2013. The applicant purchased the lease of Rosella Plains in May 2014.
- [18]For continuity, it is useful at this point to refer to some of the applicant’s material. The applicant filed, on 30 August 2016, an affidavit by Gregory Shane Jarmey. Mr Jarmey is the manager of Mt Surprise Station, which adjoins Rosella Plains to the north. He is temporarily the caretaker of Rosella Plains. Both properties are owned and operated by the applicant. He identifies a further access road, running east – west, which is outside of ML 30209. He also informs the Court that there is a caretaker who lives at the work camp. Mr Jarmey states that there is “usually always”[4] someone on Rosella Plains who is associated with the respondent. The caretaker uses the east – west access road.[5]
- [19]The respondent submits that the words of s 283B(1)(b) are determinative as the review of compensation is only possible where, since the date of the compensation agreement, 14 January 2013, there has been a material changes in circumstances for the mining lease. In this case, it is submitted, the matters relied upon by the applicant occurred prior to 14 January 2013. For the jurisdiction to be exercised, the material change in circumstances must occur “subsequently”[6] to, in this case, 14 January 2013.
- [20]In regard to the east – west road referred to by Mr Jarmey, it is submitted that there is no suggestion that it did not exist at the time of the agreement being entered into on 14 January 2013. It is also submitted that there is no suggestion that the presence of the caretaker is a change in circumstances since the date of the compensation agreement.
- [21]In relation to the claim in tort for trespass and nuisance, the respondent submits that what is complained of took place before the applicant became the lessee of Rosella Plains so he is unable to sue in relation to those things.[7] If the alteration of the land is said to be a continuing trespass or nuisance, the respondent points to the consent of the former lessee, or at least one of them, who is said to have represented them both. The continuing presence of the caretaker of the mine is said to not be the subject of the applicant’s originating application and so is irrelevant, or authorised by the compensation agreement, or, not a cause of any damage complained of relating to the ability to graze cattle on the land. The construction of the dam, it is submitted, cannot support the actions in tort as it was completed on the 13 November 2009,[8] now outside of the 6 year limitation period.[9]
The applicant’s submissions
- [22]The applicant submits that its claims of trespass or nuisance, which are in the alternative to the review sought under s 283B of the MRA, are of a continuing nature. The respondent has only the rights granted to it under ML 30209 as MLA 30230, covering the broader area, has not yet been granted. It is an application only.
- [23]The dam, roads and other mine infrastructure were, the evidence shows, mistakenly believed to be located on Mt Alder, the property adjoining Rosella Plains to the west and the owners of Mt Alder were compensated, in error, for them. The agreement between the owners of Mt Alder and the respondent, dated 26 November 2014, is Exhibit PFB-7 to Mr Brophy’s affidavit.
- [24]The wrong property owner has been compensated by the respondent. The compensation agreement dated 14 January 2013 deals with what is within ML 30209. It is drafted so as to apply also to what is now MLA 30230, once it becomes ML 30230, that is once it is granted. The agreed compensation is 3 days of bulldozing work per year.
- [25]The applicant points out that in Henry v ERO Georgetown Gold Operations Pty Ltd[10] this Court accepted that mining activities on a road outside of a mining lease could constitute a material change in circumstances. The applicant submits that there is an arguable case that the Court could find that ML 30209 does not authorise what is complained of here.
- [26]The applicant accepts that he cannot maintain a claim for trespass or nuisance prior to the purchase of Rosella Downs if it is proved that the previous owners consented to the activity in question. He submits that there is a continuing trespass which can be the subject of remedy as it occurs from day to day until, for instance, an offending object is removed.[11]
- [27]The caretaker continues to live in the workers’ accommodation and the contaminated mine water remains in the dam. The caretaker uses the roads. The applicant does not consent to any of this and has a current right to be compensated or to have the uses brought to an end.
- [28]It is submitted that, at least, these are matters which give rise to triable issues such that, under r 293(2) of the UCPR, the Court could not be satisfied that the applicant has no real prospect of succeeding on all or a part of his claim and that there is no need for a trial of all or part of the claim.
- [29]Summary judgment, it was submitted, is a power that must be exercised with care and only in the clearest of cases; cases where there is a high degree of certainty about the ultimate outcome if the matter went to trial.[12]
- [30]It is also noted that the proceedings under s 283B of the MRA are not a civil proceeding but where a statutory right to compensation is being claimed by the applicant.
- [31]The claim that there are continuing actionable rights in tort is submitted to be one which it is proper to resolve at a trial and not such that there are no real prospects of success.
- [32]In respect of the claim under s 283B of the MRA, the submission is that there has been a material change in circumstances since 14 January 2013. It is submitted that the timing of the alleged cessation of active mining is in doubt due to the existence of the compensation agreement dated 26 November 2014 between the owners of Mt Alder station and the respondent. It is submitted that this raises a triable issue. The east – west access road is not shown to have been the designated access road at the time of the compensation agreement, dated 14 January 2013, so, at the least, compensation in respect of it being used as such remains a triable issue.
Resolution
- [33]Concerning s 283B of the MRA, it would be enough to trigger a statutory right to have the Court review the compensation that there has been a material change in circumstances since, in this case, 14 January 2013. There is an arguable case that, at least, the use of the east – west road for access may have occurred after that date. It would be arguable that such a change of circumstances could be material. This could be so even if mining activities had ceased where the access was available to the caretaker of the mine. It is not the case that the Court could be satisfied that there has not been a material change in circumstances for ML 30209 since 14 January 2013. It is rather the case that there is a need for a trial for the facts to be established.
- [34]The mine is in care and maintenance. This expression itself implies activity. The caretaker, as such, is carrying out continuing activities, which may be tortious, on behalf of the respondent. The mere presence of the caretaker suggests both occupation of the site and use of the roadways. The caretaker apparently resides in the workers’ accommodation which is outside of ML 30209, but within Rosella Plains. The evidence is that the dam continues to hold contaminated water. The Court is not satisfied that the claims in tort have no real prospect of success, at least in part, and that there is no need for a trial to establish the facts. The Court is not satisfied in accordance with r 171 or r 293 of the UCPR of those things which would enliven its discretion to strike out any claim or give a summary judgment for the respondent. The Court is not satisfied that any of the claims are able to be disposed of summarily so the applicant’s case will need to be allowed to proceed to trial.
- [35]The respondent’s general application filed on 19 August 2016 must be dismissed.
- [36]The costs of and incidental to this general application are reserved.
Orders
- The general application filed by the respondent on 19 August 2016 is dismissed.
- The costs of and incidental to this general application are reserved.
WA ISDALE
MEMBER OF THE LAND COURT
Footnotes
[1] [2005] 2 Qd R 232.
[2] Legend International Holdings Inc v Taylor Aly Awaditijia & Anor (2013) 34 QLCR 447, [29].
[3] Ibid [30].
[4] Affidavit of Gregory Shane Jarmey filed 30 August 2016, para 10.
[5] Ibid paras 6(b), 11.
[6] Hicks & Anor v Graham & Anor [2004] QLRT 47; Henry v ERO Georgetown Gold Operations Pty Ltd [2015] QLC 13, [71], [72]; ERO Georgetown Gold Operations Pty Ltd v Henry [2015] QLAC 4.
[7] Butterworths, Halsbury’s Laws of Australia, 1997 Vol 26 [415-505].
[8] Affidavit of Patrick Finlay Brophy filed on 19 August 2016, [43] para (c).
[9] Limitation of Actions Act 1974, s 10.
[10] [2015] QLC 13.
[11] Fleming JG, Fleming’s The Law of Torts (Thomson Reuters, 10th ed, 2011) 53.
[12] Reardon & Anor v Deputy Commissioner of Taxation (2013) 275 FLR 9; [2013] QCA 46, [86]; Rich v CGU Insurance Ltd [2005] 79 ALJR 856, [18]; Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232, [17].