Benny v Warby

[2007] QLC 89

LAND COURT OF QUEENSLAND

CITATION:  Re Benny v  A.H. & J.E. Warby [2007] QLC 0089

PARTIES:In the matter of Mining Lease No 60158

John Bernard Benny
(Applicant)
v.
A.H. Warby and J.E. Warby
(Respondents)

FILE NO:MLC65/07

PROCEEDING:  Application for determination of compensation

DELIVERED ON:                  29 October 2007

DELIVERED AT:                   Brisbane

MEMBER:Mr PA Smith

ORDER/S:1. I determine compensation under s 281 of the Act in the sum of $858.00 (at [8])

2.I order that the applicant pay the total compensation of $858.00 to the respondents within two months from notification of the renewal of the mining lease by the Mining Registrar.  (at [9])

CATCHWORDS:                  Mining Lease – renewal – determination of compensation - Mineral Resources Act 1989, s. 281

Doroshenko v Rayment [2006] QLRT 37, applied Griffin v Warner [2005] QLRT 96,  applied

White v Warner [2007] QLRT 54, applied

Unimin Australia Limited v M and T Freeman [2007] QLC 0076, approved of

APPEARANCES:                  Not applicable – heard on the papers

Background

1. John Bernard Benny Marie (the applicant) currently holds ML60158.  The mining lease originally commenced on 1 January 1995 for a period of 10 years.    On 17 May 2004 the applicant lodged an application for renewal of the mining lease for a term of 5 years with the Mining Registrar, Quilpie District.

2. The lease is located on Raymore Station, which is owned by A.H. Warby and J.E. Warby (the respondents).  Access to the lease is through Raymore Station.  The lease is for the purpose of mining for opal and has an area of 9.57ha, which I round to 10ha for the purposes of this determination. 

Land and Resources Tribunal Practice Direction

1. The Land and Resources Tribunal, which prior to 21 September 2007 had jurisdiction for this matter, sent letters to the parties bringing the referral of this matter to the Tribunal by the Mining Registrar to their attention, and advising them of their obligations under Practice Direction 1 of 2003. Timeframes for the submission of relevant material were provided to each party. Neither party has provided any valuation evidence in accordance with the Tribunal Practice Direction. Further, although the parties have each provided some correspondence to the Tribunal when it exercised jurisdiction, such correspondence does not address in a meaningful way the criteria set out in s 281 of the Mineral Resources Act 1989 (“the MRA”).

1. Unfortunately, it was not an uncommon occurrence for either or both parties in a compensation matter before the Tribunal to fail to comply, or to comply in only a very limited way, with Practice Direction 1 of 2003.  Then Mining Referee Windridge has determined a matter in similar circumstances to this matter before me, and I adopt the analysis of the legislative provisions, compensation principles and methodology applied by him in that case, Re Doroshenko v Rayment [2006] QLRT 37.

1. As far as is relevant, leaving to one side matters which cannot be assessed as compensation by the Court pursuant to the MRA, the applicant proposes that an award be made somewhere between $5 per hectare per year and $15 per hectare per year, while the respondents seek $50 per hectare per year.

1. Mr Windridge in Hennessy & Mt Margaret Pty Limited[1] noted, at paragraph 9, that “prior determinations and agreements for leases and claims in the Quilpie area range from about $5.00 per hectare per year to $15.00 per hectare per year.” I note that previous Tribunal decisions in the Quilpie area have made assessments of compensation based on a figure of $15 per hectare per year.[2]

   [1] [2005] QLRT 54

   [2] See, for instance, Griffin v Warner [2005] QLRT 96 and White v Warner [2007] QLRT 54 

Determination

1. In my view it is in the interests of both miners and landholders for a consistent approach to be taken in compensation determinations, particularly involving similar operations in the same mining districts.  I also repeat with full agreement what Member Jones said recently in Unimin Australia Limited v M and T Freeman[3]:

“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.”

[3] [2007] QLC 0076

1. Taking into account all heads of compensation in subsection 3 of s 281 of the MRA, I access compensation in the sum of $15.00 per annum per hectare for the term of the lease ($15x10x5), which equates to $750.00. Doing the best that I can with the limited material before me, I award the additional sum of $30.00 for access, making a total award of $780.00. Pursuant to s 281(4)(e) of the Act, I award the additional sum of $78.00, making a total award of $858.00..

1. Taking all relevant factors into account, I order that the applicant pay the total compensation of $858.00 to the respondents within two months from notification of the renewal of the mining lease by the Mining Registrar.[4]

   [4] I note that the applicant has previously expressed a desire to surrender this mining lease but, as no such surrender has been filed with the Mining Registrar, the Court has no option other than to determine compensation.

P A SMITH

MEMBER OF THE LAND COURT