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Horizon Minerals Ltd v Stacey[2021] QLC 17

Horizon Minerals Ltd v Stacey[2021] QLC 17

LAND COURT OF QUEENSLAND

CITATION:

Horizon Minerals Ltd & Anor v Stacey [2021] QLC 17

PARTIES:

Horizon Minerals Limited (formerly Intermin Resources Ltd)

ABN 88 007 761 186

(applicant)

Richmond Vanadium Technology Pty Ltd

ABN 63 617 799 738

(applicant)

v

Lance James Stacey

(respondent)

FILE NO:

CPA101-19

PROCEEDING:

Originating application under the Mineral and Energy Resources (Common Provisions) Act 2014

DELIVERED ON:

28 April 2021

DELIVERED AT:

Brisbane

HEARD ON:

8, 9 & 10 February 2021

HEARD AT:

Brisbane

MEMBER:

WA Isdale

ORDERS:

  1. The applicants shall pay the respondent Thirty-Eight Thousand Six Hundred and Forty-Eight Dollars ($38,648) compensation pursuant to section 81 of the Mineral and Energy Resources (Common Provisions) Act 2014.
  1. The applicants shall pay the respondent Eighteen Thousand One Hundred and Seventy-Seven Dollars and Fifty Cents ($18,177.50) costs pursuant to sections 91 and 96B of the Act.
  1. These sums shall be paid within 30 days of the making of these orders.

CATCHWORDS:

ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – COMPENSATION – where mining exploration activities had been conducted on Mitchell grass downs – where the expert witnesses disagreed about the requirements for rehabilitation of Mitchell grass – whether destocking the paddocks was required for rehabilitation – whether alternatively the existing rotational grazing system was more appropriate

Mineral and Energy Resources (Common Provisions) Act 2014 s 81, s 91, s 96B

Bowen Basin Coal Pty Ltd v Namrog Investments Pty Ltd [2020] QLC 23, distinguished

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, [2001] NSWCA 305, applied

APPEARANCES:

ANS Skoien (instructed by HopgoodGanim Lawyers) for the applicant

EJ Morzone QC, with AR Hellewell (instructed by Connie Navarro Legal) for the respondent

Background

  1. [1]
    The respondent is the owner of Lilyvale Station, which is located around 60 kilometres north-west of Richmond. He operates the property for the purposes of his business of breeding, backgrounding and fattening cattle.
  1. [2]
    One part of Lilyvale is Lot 26 on Crown Plan B157119. This has an area of about 3,900 ha.[1]
  1. [3]
    During the period July to August 2019, the applicants, acting under legal authority, carried out mineral exploration activities on Lot 26.
  1. [4]
    Lot 26 comprises 6 paddocks,[2] which are operated on a rotational grazing basis so that the grass may recover from the pressure of grazing.
  1. [5]
    Lilyvale itself has an area of 25,143 ha. Of the 3,920 ha of Lot 26, mineral exploration activities in the form of drilling 333 holes took place on 2,924 ha.[3]
  1. [6]
    The drilled area is downs country, characterised by Mitchell grass, a perennial tussock grass which dominates the downs although there is a wide range of other grass species present.[4]
  1. [7]
    The native Mitchell grass tussocks may live for more than 25 years but significant natural recruitment events can be expected to be 15 to 30 years apart. The plants are fragile, with extremely long recovery periods after sustaining damage.[5] Wet seasons stimulate and facilitate recovery.

The exploration activity

  1. [8]
    During the winter of 2019, the applicants carried out their activities. They used 4 vehicles: a light support truck for water, fuel and the daily movement of workers; another light truck to take samples from the site daily; a four-wheel drive vehicle for the geologists and a medium rigid truck on which the drilling rig was mounted. This larger vehicle had dual wheels. Only it was left on the work site overnight.
  1. [9]
    The vehicles used around 20 km of existing tracks. The exploration involved drilling 333 holes of about 10 to 15 cm diameter to a depth of 20 to 30 metres. Samples were taken and the holes capped below the surface. The area was cleaned up and, after removal of some material and raking the soil over the cap, left.
  1. [10]
    In order to drill the holes, it was necessary to depart from the existing tracks. The vehicles drove across the downs, leaving tracks between the drill holes.
  1. [11]
    Photographs of the vehicles, their tracks and the area of a drill hole are included in the joint report of the agronomy experts who gave evidence.[6]
  1. [12]
    These photographs, and others such as those in Exhibit 13, provide evidence of the activity and its impact. Exhibit 13 includes a plan of the drilling and photographs taken in late January 2021, illustrating the extent to which the activities undertaken have left signs that are still visible.

The dispute

  1. [13]
    The parties are in dispute in relation to the monetary compensation due to the respondent in respect of the activities of the applicants, who have brought the matter to Court to be determined.
  1. [14]
    The parties provided an agreed statement of what is, and is not, in dispute. In its final form it became Exhibit 2A. It is in the following form:

ISSUES NOT IN DISPUTE

The following matters are not in dispute in the proceeding:

  1. The Respondent is, and has been at all material times, the owner of land known as Lilyvale Station (“Lilyvale”), part of which is properly described as Lot 26 on Crown Plan B157119, comprising an area of 3,900.967 hectares (the “Property”).
  2. The Respondent has, and at all material times does, use Lilyvale, including the Property, for pastoral purposes (the “Pastoral Use”) through the grazing and breeding of cattle (the “Cattle”).
  3. The Pastoral Use on the Property has at all material times involved, and does involve, six paddock rotational grazing of Mitchel Grass downs country (the “Rotational Grazing”).
  4. Between 11 July 2019 and 21 August 2019 (the “Activity Period”) the Applicants entered the Property to undertake various exploration activities (the “Activities”).
  5. The Activities:
  1. (a)
    involved drilling of 333 holes;
  1. (b)
    involved use of existing access tracks by vehicles;
  1. (c)
    resulted in dual wheel tracks (the “Wheel Tracks”) through the movement of vehicles over parts of the Property not covered by existing access tracks;
  1. (d)
    resulted in the need for rehabilitation (the “Rehabilitation”) of the grass on the Wheel Tracks;
  1. (e)
    resulted in the need for expert advice (the “Expert Advice”) with regard to the management of the Property and the Rehabilitation;
  1. (f)
    may have resulted in the introduction of weeds (the “Weeds”) on parts of the Property;
  1. (g)
    resulted in the need for spot spraying (the “Spot Spraying”) of the Weeds;
  1. (h)
    resulted in the need for the Respondent to spend additional time (the “Owner’s Time”) during the Activity Period and afterwards;
  1. (i)
    resulted in additional costs (the “Additional Costs”) to the Respondent beyond the cost of Expert Advice, the cost of Spot Spraying and the cost of Owner’s Time;
  1. (j)
    did not result in any long-term loss of productivity of the Pastoral Use;
  1. (k)
    resulted in short-term loss of Productivity (the “Loss of Productivity”) of the Pastoral Use; and
  1. (l)
    did not result in any diminution in the value of the Property.
  1. The Respondent will incur a cost of $3,000 in conducting the Spot Spraying.
  2. The Respondent will incur a cost of $10,000 in obtaining the Expert Advice.
  3. The cost of the Owner’s Time is to be calculated at the rate of $100 per hour.
  4. There would be a cost of the Owner’s Time during a 6 year Rehabilitation Period of $2,400, if there is no Rehabilitation by destocking the Property for a period of 24 months.

9A.  The costs of the Owner’s Time prior to and during the Activity Period is $10,600.

9B.  The legal costs up to the proceedings (for the claim under sections 91 and 96B of the MERCPA quantified on 8 February 2021) are $15,400.

9C.  The cost for agronomy advice up to the proceedings (for the claim under sections 91 and 96B of the MERCPA quantified on 8 February 2021) are $2,777.50.

ISSUES IN DISPUTE

The following matters remain in dispute in the proceeding:

  1. Whether the Rehabilitation requires destocking of the Property for a period of 24 months (the “Destocking”).
  2. The extent of the Property adversely impacted (the “Impact”) as a result of the Wheel Tracks.
  3. Whether the Loss of Productivity is limited to losses from a reduction in carrying capacity (the “Reduction in Carrying Capacity”) for a period during which the Rehabilitation occurs (the “Rehabilitation Period”) or includes costs of the Destocking.
  4. The extent of the Rehabilitation Period as a result of the Impact.
  5. The extent of the Reduction in Carrying Capacity as a result of the Impact.
  6. (Deleted)
  7. Whether the Loss of Productivity should be:
  1. (a)
    $1,478 to $10,718 per year, if the Destocking is not required, up to a maximum of $64,308, depending on the Reduction of Carrying Capacity and the Rehabilitation Period, if the Destocking is not required; or
  1. (b)
    $654,625, if there is Destocking, being $327,317 per year;
  1. Whether the Additional Costs should be:
  1. (c)
    $3,780 for labour time to draft the Cattle, being 0.3 days per year on 3 drafts per year, by 2 stockmen at the rate of $350 per day, if the Destocking is not required; or
  1. (d)
    $27,297, if there is the Destocking, for:
  1. (i)
    $21,020 for mustering and processing of replacement heifers;
  1. (ii)
    $1,200 for costs of relocating heifers; and
  1. (iii)
    $5,077 for costs of cartage of heifers.”

Possible compensation outcomes

  1. [15]
    The practical outcome of what remained in dispute was reduced by the parties to an agreed schedule of the monetary compensation which would be the result of the Court accepting either some variant of the applicants’ case or, on the other hand, the respondent’s contentions.
  1. [16]
    The final version of the agreed possible financial outcomes became Exhibit 11A, and is in the following form:

Compensation

Item

Applicant

Respondent

Section 81(4)(a)(v) and 81(4)(b)

Loss of Productivity – Destocking

$1,478 to $10,718 (if destocking not required) pa

Up to $64,308

$654,625

Labour to drafting cattle

$3,780

0.3 days per year on 3 drafts per year, 2 stockmen at a rate of $350 per day.

N/A

Mustering and processing of replacement heifers for destocking

Costs of relocating heifers after destocking

Cost of cartage of heifers after destocking

Acquisition of replacement heifers - Total

N/A

$21,020

$1,200

$5,077

Total: $27,297

Use of existing access tracks

N/A

Nil

Spot spraying – agreed

$3, 000

Expert advice to monitor pasture conditions - agreed

$10,000

Owner’s time prior to and during Activity Period

$10,600

$10,600

Owner’s time during proceedings including travel to and from

Nil

Nil

Owner’s time during 6 yrs rehabilitation - agreed if no destocking required

$2,400

N/A

Section 91 and 96B

Legal costs up to the proceedings

$15,400

$15,400

Agronomy costs up to the proceedings

$2,777.50

$2,777.50

Total

$56,825.50 to $112,265.50,

$723,699.50

A summary of what is not in dispute

  1. [17]
    It is not contentious that the applicants’ activities have resulted in:
  1. 333 holes being drilled;[7]
  2. New wheel tracks being left behind the vehicles involved in the drilling;[8]
  3. The need to rehabilitate the wheel tracks.[9]
  1. [18]
    It was not in dispute that there would not be any diminution in the value of the property, provided that the affected area was rehabilitated.[10]
  1. [19]
    There was no dispute that some form of resting of the pasture would be necessary.[11]
  1. [20]
    The main issue in dispute was how the rehabilitation needed to be carried out. The cost of this, and therefore the amount of compensation, flows from the resolution of this key issue.
  1. [21]
    The parties each relied on the opinions of experts in the field of agronomy. There was no dispute regarding the qualifications of the witnesses to give their evidence. They prepared a joint report, Exhibit 8. They jointly inspected the land and their evidence was given concurrently. Mr Thompson was the expert engaged by the applicants and Mr Castle was engaged by the respondent. They carried out their inspection on 17 July 2020 by vehicle on the ground and by a low-level helicopter flight. The joint report includes a number of photographs which are informatively captioned.
  1. [22]
    Mr Castle is of the opinion that because the downs pasture is fragile and not readily rehabilitated while stock remain on it, the land will need to be completely freed from grazing pressure for 2 years. Removing stock from the entire area for this period will have the costs which lead to the level of compensation contended for by the respondent.
  1. [23]
    Mr Castle relies on a technical guide published by the Queensland Government in support of the view that removing stock for between 2 and 5 wet seasons may be required.[12]
  1. [24]
    Mr Castle, in referring to the drilling activities, stated in Exhibit 8 that 75% of the paddock area was drilled.[13] This refers to the area within which the drilling took place, not to the area which needs to be rehabilitated.
  1. [25]
    Discussing the 72 km of new tracks, 12 m wide, indicated by the respondent, the experts report that dual rear wheel tracks directly impacted a combined width of less than 1.2 m and that there is no consistent evidence that both wheel tracks had been padded out by cattle.[14] Cattle are drawn by curiosity to the tracks and walk along them. Their inspection did not reveal any examples of 12 m wide impacted area.[15] They were accompanied on their inspection by “the property owners”.[16]
  1. [26]
    The joint report includes Table 4 from the Queensland Government technical guide which became Exhibit 14. It is a summary of land condition characteristics for open downs. The experts differ in how they interpret, and therefore apply, these characteristics.
  1. [27]
    Mr Castle found that the land affected by the wheel tracks met condition type D, degraded land.[17] Mr Thompson agreed that condition D land has to be rehabilitated by removing all stock.[18]
  1. [28]
    Mr Castle takes the position that to rehabilitate the tracks and associated drilling areas it will be necessary to remove all stock for a period of two wet seasons. Mr Thompson reports that no areas of condition D land were observed that were related to drilling disturbance.
  1. [29]
    Exhibit 14 states that: “this guide will focus on the open landtypes”.[19]
  1. [30]
    The photographs in Table 4 provide illustrations of the land condition types described in the four classes.[20] They show significant areas of land as might be expected when describing “landtypes”.[21]
  1. [31]
    The land affected by the wheel tracks and drilling activity is a very small part of the property. It would be unrealistic to assess the land type by looking simply at the wheel tracks and drilled areas.
  1. [32]
    Mr Thompson was of the opinion that depending on whether cattle were in a paddock or not, the land condition of the pastures across the whole paddock was either B or C.[22]
  1. [33]
    The Court accepts that, properly understood, the land condition characteristics definitions in Exhibit 14 ought not be applied in the manner adopted by Mr Castle. His opinion was that the land affected by the wheel tracks meets the definition of condition D (degraded).[23] He was also of the view that the extensive nature of the tracks meant that in order to remove stock from them it would be necessary to remove stock from the whole area.[24]
  1. [34]
    It was not in dispute that the removal of stock from the whole area for two wet seasons would result in the rehabilitation of the affected area.
  1. [35]
    The applicants contended that such action was not what was necessary to properly rehabilitate the affected area, as distinct from the whole of the land.
  1. [36]
    The respondent is entitled to compensation that is not niggardly but which is full and proper. If there is any doubt about a matter affecting compensation, then the respondent must have the benefit of such a doubt.
  1. [37]
    The Mineral and Energy Resources (Common Provisions) Act 2014 (“the Act”) provides by section 81 the general liability to compensate. It is in the following form:

81  General liability to compensate

  1. (1)
    A resource authority holder is liable to compensate the following persons (each an eligible claimant) for each compensatable effect suffered by the eligible claimant because of the holder—
  1. (a)
    an owner or occupier of private land that is—
  1. (i)
    in the authorised area of the resource authority; or
  1. (ii)
    access land for the resource authority;
  1. (b)
    an owner or occupier of public land that is—
  1. (i)
    in the authorised area of the resource authority; or
  1. (ii)
    access land for the resource authority.
  1. (2)
    The resource authority holder’s liability to compensate an eligible claimant under subsection (1) is the resource authority holder’s compensation liability to the eligible claimant.
  2. (3)
    This section does not apply to a public road authority for a notifiable road use.
  3. (4)
    In this section—

compensatable effect, suffered by an eligible claimant because of a resource authority holder, means—

  1. (a)
    any of the following caused by the holder, or a person authorised by the holder, carrying out authorised activities on the eligible claimant’s land—
  1. (i)
    deprivation of possession of the land’s surface;
  1. (ii)
    diminution of the land’s value;
  1. (iii)
    diminution of the use made, or that may be made, of the land or any improvement on it;
  1. (iv)
    severance of any part of the land from other parts of the land or from other land that the eligible claimant owns;
  1. (v)
    any cost, damage or loss arising from the carrying out of activities under the resource authority on the land; and
  1. (b)
    consequential loss incurred by the eligible claimant arising out of a matter mentioned in paragraph (a).
  1. [38]
    The definition of “compensatable effect” is referable to there being a loss. The loss presently being considered relates to the area of land actually affected by the activities of the applicants. That area is the disturbed area only.
  1. [39]
    The Court must consider what will be necessary in order to rehabilitate the disturbed area. It is necessary to consider its size and shape and whether the disturbed, affected area can be rehabilitated without removing stock from the whole of the land area for two wet seasons or not. Compensation must reflect what will actually be required to remedy the damage.
  1. [40]
    The Court accepts Mr Thompson’s opinion that the land type was condition B or C, depending on whether cattle were in a paddock or not.[25]
  1. [41]
    Mr Thompson is of the opinion that the affected area can be rehabilitated without removing all stock from the whole of the land but by using the existing system of rotation of stock through the 6 paddocks into which the land is divided for grazing purposes. Mr Thompson accepts that some reduction in stock numbers will be needed over the 6 years it takes to rotate cattle through each of the 6 paddocks.[26]

The area affected

  1. [42]
    The area affected by the activities of the applicants will be the length of the wheel tracks created multiplied by the width of the disturbed area, plus the area of the disturbance due to the 333 drill holes.
  1. [43]
    Mr Warwick Nordin was the supervising geologist for the applicants’ activities. He provided two affidavits, Exhibits 5 and 7, and gave evidence by telephone.
  1. [44]
    Mr Nordin’s evidence was that the total distance of all of the lines drilled was 63.3 km. The lines on which drilling took place were 400 metres apart and drill holes were every 200 metres along those lines. He said he had “a quick look” and totalled up the distance as 63.3 km. For a geologist, this would not be a challenging calculation and the Court does not see the usefulness of his total as diminished by his use of the expression “a quick look”.[27] Mr Stacey, the respondent, referred to the length as “60-odd kilometres”.[28]
  1. [45]
    The agronomy experts stated that their joint brief referred to 72 km of new tracks.[29] Mr Castle did not disagree with that.[30] He accepted that the dual wheel tracks, those of the heaviest vehicle, the drilling rig, caused about 60 cm width of damage on the ground in the case of each set of wheels.[31] This means that the two sets of dual wheels together left tracks of a total combined width of 1.2 metres. The area impacted around each of the 333 drill holes was a few square metres.[32]
  1. [46]
    If the disturbed area is accepted to be 72,000 metres by 1.2 metres, which is the maximum length of the wheel tracks that the evidence could support, multiplied by the width of the combined dual wheel tracks, the area of that disturbance is 86,400 m², which is 8.64 hectares. Lot 26 has a total area of 3,920 ha,[33] so the affected area is 0.22% of Lot 26. This refers only to the vehicle tracks. Allowance must also be made for the 333 drill holes.
  1. [47]
    The joint report of the agronomy experts, Exhibit 8, discloses that the total area directly affected is “less than” 0.4% of the 3,920 ha of Lot 26.[34] Once again, calculating on the basis most favourable to the respondent, this is an area of 15.68 ha.
  1. [48]
    Subtracting the 8.64 ha area allowed for the wheel tracks from the total area directly affected discloses that, proceeding on that basis, 7.04 ha has been allowed for the additional disturbed area attributed to the 333 drill holes. That is 211.4 m² for each drill hole. There is no evidence that the disturbed area for each drill hole was that large. Mr Thompson said the disturbed area was in the order of a couple of square metres around the holes.[35] However, if it is accepted that the area directly impacted is 0.4% of the grazing area, Lot 26, then this is what the mathematics leads to.
  1. [49]
    While Exhibit 8 refers to an area of 3,920 ha for Lot 26, Exhibit LJS2 to the respondent’s affidavit, Exhibit 10, shows that Lot 26 on Crown Plan B157119 has an area of 3,900.967 ha, somewhat less than the figure used in Exhibit 8.
  1. [50]
    The affidavit of Darcey Duncan,[36] formerly manager of external relations for the applicant, includes a large number of photographs of drill holes and the vehicles used. As the photograph on page 175 illustrates, the vehicles were not always in single file so the disturbed area might have been increased by this at the drill sites and potentially in other areas on some occasions.

The affected area – conclusion

  1. [51]
    Allowing for this on the basis of resolving doubt in favour of the respondent, the Court is comfortably satisfied that the area affected could not be more than 0.4% of Lot 26.

What is required for rehabilitation

  1. [52]
    Mr Castle’s opinion, and therefore the calculation of compensation, is that to rehabilitate this area of 0.4% of Lot 26, the whole of Lot 26 should be totally destocked for a minimum of 24 months and up to 60 months if unfavourable seasonal conditions are encountered during the recovery phase.[37] This will result in a decrease in carrying capacity of approximately 600 head of cattle.[38]
  1. [53]
    Mr Thompson points out that Mr Castle’s assessment is based on “… a two year lock down of the weaner component of the Lilyvale grazing system.”[39]
  1. [54]
    In his opinion, on the basis that 0.4% of the area has no cattle production in a given year because of padding and track impacts, previous productivity could only be maintained by reducing cattle numbers accordingly, by 2.4 head. For a one-year period, income foregone would be $1,478.[40]
  1. [55]
    The respondent gave evidence that the land is managed by a 6-paddock rotational grazing scheme.[41] The plan is to keep 4 paddocks free of cattle during the wet season and at least one free at any time.[42]
  1. [56]
    The respondent’s evidence was that there is usually one mob of cattle, sometimes two.[43]
  1. [57]
    There are up to 300 cattle in a mob,[44] and there may be 500 to 600 cattle in two mobs over two paddocks.[45]
  1. [58]
    Mr Castle’s estimate of the cost of destocking is based on an assumption concerning the number of stock on the land, approximately 600 head.[46] Naturally, the usefulness of his opinion will depend on the accuracy of the assumed facts on which it is based.
  1. [59]
    For the opinion of the expert witness to be admissible or, in the present case, since no objection was taken to the admissibility of Mr Castle’s opinion, of any weight, the factual basis of the opinion must be proved.[47]
  1. [60]
    The respondent, in a unique position to know, did not provide evidence of the actual stocking of the land. He gave evidence that at times there might only be 300 head of cattle on the downs.[48]
  1. [61]
    The respondent has detailed stocking records.[49] He maintained in evidence that the agronomist did not “officially” ask for those records, although they were mentioned.[50]
  1. [62]
    The respondent stated that he was aware of his duty to disclose relevant documents.[51] He agreed that stocking level is important.[52] His evidence was that he was not asked by his solicitor to produce those records and did not do so.[53]
  1. [63]
    He keeps a book in which the paddock rotation is recorded. He did not show this to either of the agronomists or his solicitor.[54]
  1. [64]
    The respondent keeps a record of stock rotation and cattle numbers in his notebook.[55] This will disclose how many head of cattle are on any part of his grazing operation at any time.[56]
  1. [65]
    The book was, while he was giving evidence, at his home in Richmond.[57] There was a caretaker there who would “probably not” be able to locate the book.[58]
  1. [66]
    In Exhibit 8, Mr Thompson stated that no actual data was available for the frequency of destocking actually practiced. In the absence of evidence, he assumed that a paddock would be destocked once in every 5 or 6 years.[59]
  1. [67]
    The respondent gave evidence that he would not be able to tell the caretaker where to find this book in his home.[60]
  1. [68]
    The respondent agreed that he could spell 2 paddocks for a full year if he was only grazing 200 to 300 weaners.[61]
  1. [69]
    Mr Thompson was very concerned about the need for stocking information from the respondent. In cross-examination, the following passage occurred:

“MR THOMPSON:   Correct.  Yes.

MR MORZONE:   Through none of that process did you ask for any information, did you?

MR THOMPSON:   Yes, I did.

MR MORZONE:   Did you?

MR THOMPSON:   That was done – I think, if you refer back to the evidence from the landholder yesterday, I did ask.  And so – and so – and Brad Castle was present.

MR MORZONE:   Okay?

MR THOMPSON:   Yeah.  So – and I was – look, I was con – from the get-go, I was very concerned about the need for that information.”[62]

  1. [70]
    The respondent’s position that he “wasn’t officially asked” for the stocking records,[63] and their absence in this case, has the result that Mr Castle’s calculations will not be of sufficient weight to be useful to the Court. Such evidence as the respondent gave in regard to stock levels serves only to invalidate the assumption underlying Mr Castle’s opinion. No alternative reliable stocking figures were provided by the respondent when the means to do so was under his control. The record book was never produced. It and the information recorded in it are peculiarly within the knowledge and power of the respondent who was able to produce or withhold it. The applicants have little means to discover its contents independently of the cooperation of the respondent.[64]
  1. [71]
    That cattle stocking data was sought from the respondent is confirmed by Exhibit 16, where the e-mail from the applicants’ solicitors to the respondent’s solicitor specifically requests it and the included draft index to the joint brief to experts has a heading “cattle data”. The reply from the respondent’s solicitor, Exhibit 16A, has deleted that heading.

Conclusion on Mr Castle’s opinion of the required rehabilitation

  1. [72]
    Clearly, the respondent has chosen to withhold the stocking data. A consequence of this is that the Court is unable to give any weight to Mr Castle’s opinion since it is based on facts not proven.

Other evidence from the respondent

  1. [73]
    The respondent produced Exhibit 13, which includes a plan of the holes drilled and a number of photographs taken in late January 2021. These show evidence of vehicle tracks and where it appears that holes may have been drilled and filled.
  1. [74]
    The Court accepts the evidence of Mr Thompson, for the reasons which have been given, that the rehabilitation will require the reduction in stocking of 2.4 head of cattle. If this is maintained for one year, the compensation in respect of this aspect is $1,478.[65]
  1. [75]
    Mr Thompson told the Court that a knowledge of actual grazing land management strategies was critical in order to inform the Court in cases such as this, and he had asked for that information.[66] When he heard the respondent’s evidence, he formed the view that the grazing land management system needs to be addressed in a considerable amount of detail.[67] With the benefit of expert advice, which the agronomists agreed ought to be taken,[68] Mr Thompson had no concerns that if advice is followed, rehabilitation will occur within the six-year period of rotational grazing.[69]
  1. [76]
    This needs to be understood in view of his comment in Exhibit 8 that this was a “possibility”.[70] The Court understands the use of the quoted word in Exhibit 8, when considered alongside what the witness said in court, to not connote “unlikely”. Indeed, Mr Thompson said that the six-year period was arguably a little conservative and “not–quite realistic”.[71] The slightly infelicitous words used do not obscure the true meaning. The following exchange is illustrative:

“MR THOMPSON:   I’d – yeah.  Excuse me.  I’d suggest to you that there’s ongoing rehabilitation that’ll happen with or without spelling, but appropriate spelling on a targeted basis on a paddock by paddock targeted basis is going to – excuse me – is going to accelerate that process.  So the comparison material images I just took you to is an indication that under current management – be it good or bad management, it doesn’t matter.  The evidence for extensive ongoing visual impacts is just not there.

MR MORZONE:   Again you use the word “accelerate”.  What we need – ultimately what we effectively need is your assurance or guarantee that it will occur because that’s the only compensation we’re giving this man.  If there’s any doubt it won’t occur, we’ve got to give him more.  Can you give that assurance or guarantee?  Are you prepared to do that?  Are you prepared   

MR THOMPSON:   I’m prepared to assure that with – with a modified grazing land management system, that is highly likely:  that he’ll get remediation.  That’s correct.

MR MORZONE:   Highly likely.  So there’s a chance he won’t.

MR THOMPSON:   There’s a .1 per cent chance I’ll get run over when I walk out the front door, too.  You know, that’s – you know   

MR MORZONE:   We – we know that ultimately this court is one that will resolve doubts.

MR THOMPSON:   That’s correct.

MR MORZONE:   And it needs to know the doubts that exist, and it sounds like there is a doubt in your case, that it won’t be achieved?

MR THOMPSON:   A relatively small doubt.  It’s all predicated on land management, that’s correct.”[72]

  1. [77]
    The Court is satisfied that there is no remaining doubt which requires resolution in favour of the respondent and accepts the evidence of Mr Thompson without reservation.
  1. [78]
    Mr Thompson was cross-examined about his evidence in another case.[73] It was submitted that his evidence in that case was to the effect that two or three wet seasons were necessary, without cattle, to remediate buffel grass. Buffel grass is easier to remediate than Mitchell grass.[74]
  1. [79]
    The Court is unable to conclude that such evidence provides any sufficient basis to discount Mr Thompson’s evidence in the present case, which must be determined on its own facts.
  1. [80]
    The Court is satisfied, for the reasons that have been given, that rehabilitation of the property does not require that it be fully destocked but that rehabilitation may be achieved as indicated by Mr Thompson.
  1. [81]
    The annual loss due to the stock reduction would be $1,478.
  1. [82]
    It will be appropriate, taking the view of the evidence in regard to this aspect which is favourable to the respondent, to allow for a six-year rehabilitation period.
  1. [83]
    The compensation for stock reduction would therefore be $1,478 × 6 = $8,868.
  1. [84]
    There should also be compensation of $3,780 for additional drafting of weaners consequent on the stock reduction.[75]
  1. [85]
    In addition, as accepted by the applicants, there should be $3,000 compensation for spot spraying. This is an agreed amount.[76]
  1. [86]
    There should also be compensation in the agreed sum of $10,000 for expert advice in regard to pasture condition.
  1. [87]
    It was not disputed that the respondent should also be compensated for time applied in regard to the applicants’ activities prior to and during the activity. The amount of $10,600 for this is agreed.[77]
  1. [88]
    The parties agree that the respondent’s time during the six-year rehabilitation period should be compensated in the undisputed amount of $2,400.[78]
  1. [89]
    Pursuant to sections 91 and 96B of the Act, further compensation is payable. Those sections are in the following form:

91 Recovery of negotiation and preparation costs

  1. (1)
    This section applies if an eligible claimant necessarily and reasonably incurs negotiation and preparation costs in entering or seeking to enter into a conduct and compensation agreement or deferral agreement with a resource authority holder.
  1. (2)
    The resource authority holder is liable to pay to the eligible claimant the negotiation and preparation costs necessarily and reasonably incurred.

96B  Negotiation and preparation costs

  1. (1)
    A party may apply to the Land Court for—
  1. (a)
    a declaration that all or part of stated costs are payable under section 91; or
  1. (b)
    if the party is an eligible claimant—an order requiring the payment of negotiation and preparation costs under section 91.
  1. (2)
    The Land Court may, in a proceeding mentioned in subsection (1) or a proceeding brought under section 96, make a declaration about, or an order for the payment of, negotiation and preparation costs under section 91.
  1. (3)
    However, if the costs are the costs of an agronomist, the Land Court can not make an order or declaration in relation to the costs unless the agronomist is appropriately qualified to perform the function for which the costs are incurred.
  1. [90]
    The respondent has not formally made any claim under either of these provisions. However, this is not submitted by the applicants to be a barrier to the Court making orders for compensation in this matter.
  1. [91]
    Under these provisions, the parties agree that the Court should award the amount of $15,400 for legal costs up to the proceedings and, additionally, $2,777.50 for agronomy costs up to the proceedings.[79]
  1. [92]
    The total award of compensation and costs to the respondent under the Act should therefore be the amount of $56,825.50.

Orders

  1. The applicants shall pay the respondent Thirty-Eight Thousand Six Hundred and Forty-Eight Dollars ($38,648) compensation pursuant to section 81 of the Mineral and Energy Resources (Common Provisions) Act 2014.
  2. The applicants shall pay the respondent Eighteen Thousand One Hundred and Seventy-Seven Dollars and Fifty Cents ($18,177.50) costs pursuant to sections 91 and 96B of the Act.
  3. These sums shall be paid within 30 days of the making of these orders.

Footnotes

[1]  Ex 10.

[2]  Ex 10, page 698.

[3]  Ex 8, lines 48–52.

[4]  Ex 8, lines 61–6.

[5]  Ex 8, page 7, lines 212–22.

[6]  Ex 8.

[7]  Ex 18, Respondent’s closing submissions, page 4, 9(a).

[8]  Ibid 9(b).

[9]  Ibid 9(c).

[10]  Ibid 9(d).

[11]  Ibid 10.

[12]  Ex 8, lines 224–8; Ex 14.

[13]  Ex 8, lines 155–6.

[14]  Ex 8, lines 292–6.

[15]  Ex 8, lines 298–9.

[16]  Ex 8, lines 17–8.

[17]  Ex 8, line 378.

[18]  Ex 8, lines 339–40.

[19]  Ex 14, page 11, 5.1.

[20]  Ibid page 13.

[21]  Ibid page 11, 5.1

[22]  Ex 8, lines 346–7.

[23]  Ex 8, line 378.

[24]  Ex 8, lines 380–4.

[25]  Ex 8, lines 346–7.

[26]  Ex 8, lines 30–4.

[27]  T 1–37, lines 39 to 42.

[28]  T 1–42, lines 35 to 36.

[29]  Ex 8, line 294.

[30]  T 2–55, lines 12 to 24.

[31]  T 2–55, lines 5 to 10.

[32]  T 2–55, lines 41 to 44.

[33]  Ex 8, lines 50–1.

[34]  Ex 8, line 437. See also Ex 8, lines 438, 466.

[35]  T 2–54, lines 28 to 38.

[36]  Ex 4.

[37]  Ex 8, lines 494–7.

[38]  Ex 8, line 498.

[39]  Ex 8, lines 530–1.

[40]  Ex 8, lines 543–6.

[41]  T 1–40, lines 30 to 39.

[42]  T 1–49, lines 29 to 33.

[43]  T 1–40, line 41.

[44]  T 1–51, line 7.

[45]  T 1–50, lines 25 to 46.

[46]  Ex 8, lines 497–8.

[47] Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, 743–4 [85].

[48]  T 1–51, lines 13 to 21.

[49]  T 1–45, lines 25 to 27.

[50]  T 1–45, lines 32 to 46.

[51]  T 1–46, lines 28 to 30.

[52]  T 1–46, lines 32 to 33; T 1–47, lines 29 to 31.

[53]  T 1–48, lines 10 to 16.

[54]  T 1–48, lines 18 to 24.

[55]  T 1–51, lines 36 to 43.

[56]  T 1–52, lines 1 to 2.

[57]  T 1–52, line 35.

[58]  T 1–52, line 39.

[59]  Ex 8, lines 255–7.

[60]  T 1–53, lines 33 to 35.

[61]  T 1–54, lines 38 to 40.

[62]  T 2–50, lines 3 to 16.

[63]  T 1–45, lines 34 to 36.

[64] Blatch v Archer (1774) 1 Cowp 63 at 65, 66; 98 ER 969 at 971, cited in Gunggandji-Mandingalbay Yidinji Peoples Prescribed Bodies Corporate Aboriginal Corporation v Murray [2021] FCA 94 [64].

[65]  Ex 8, lines 543–6.

[66]  T 2–17, lines 4 to 7.

[67]  T 2–18, lines 6 to 7.

[68]  T 2–17, lines 41 to 43.

[69]  T 2–18, lines 9 to 17.

[70]  Ex 8, line 410.

[71]  T 2–18, lines 15 to 17.

[72]  T 2–96, lines 5 to 35.

[73] Bowen Basin Coal Pty Ltd v Namrog Investments Pty Ltd [2020] QLC 23.

[74]  Ex 18, Respondent’s closing submissions, [30].

[75]  Ex 11A shows the calculation of this sum.

[76]  Ex 11A.

[77]  Ibid.

[78]  Ibid.

[79]  Ibid.

Close

Editorial Notes

  • Published Case Name:

    Horizon Minerals Ltd & Anor v Stacey

  • Shortened Case Name:

    Horizon Minerals Ltd v Stacey

  • MNC:

    [2021] QLC 17

  • Court:

    QLC

  • Judge(s):

    Member WA Isdale

  • Date:

    28 Apr 2021

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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