Benny v Warby - [2007] QLC 88

LAND COURT OF QUEENSLAND

CITATION: Re Benny v A.H. & J.E. Warby [2007] QLC 0088

PARTIES:In the matter of Mining Lease No 60157
John Bernard Benny
(Applicant)
v.
A.H. Warby and J.E. Warby
(Respondents)

FILE NO:MLC64/07
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 $528.00 (at [8])
2.I order that the applicant pay the total compensation of $528.00 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 76, approved of

APPEARANCES: Not applicable – heard on the papers

Background

John Bernard Benny Marie (the applicant) currently holds ML60157. 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.
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 6.15ha, which I round down to 6ha for the purposes of this determination.

Land and Resources Tribunal Practice Direction

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”).

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] QLC 88
Decision Date: 29 October 2007

CaseChat Overview and Summary

John Bernard Benny Marie, the holder of mining lease number 60157, applied to the Land Court of Queensland for the determination of compensation for the renewal of the lease. The respondents, A.H. Warby and J.E. Warby, are the owners of Raymore Station, through which access to the lease is provided. The lease, which covers an area of 6 hectares and is intended for opal mining, was initially granted for a period of 10 years, beginning on 1 January 1995, and Benny applied for its renewal for another 5 years on 17 May 2004. Both parties failed to provide any valuation evidence as required by the Tribunal Practice Direction, and their correspondence did not meaningfully address the criteria set out in s 281 of the Mineral Resources Act 1989.

The primary legal issue before the court was to determine the appropriate compensation payable for the renewal of the mining lease, considering the lack of compliance by either party with the Tribunal's Practice Direction. The applicant proposed compensation between $5 and $15 per hectare per year, while the respondents sought $50 per hectare per year. The court needed to consider the previous determinations and agreements in the Quilpie area and the consistency of compensation determinations involving similar operations in the same mining districts.

The court found that a consistent approach to compensation determinations is in the interest of both miners and landholders. It adopted the methodology applied by the Mining Referee Windridge in a similar case, Re Doroshenko v Rayment [2006] QLRT 37. The court assessed compensation based on $15 per annum per hectare for the term of the lease, adding $30 for access and $48 for other considerations, resulting in a total award of $528.00. The court ordered the applicant to pay this amount to the respondents within two months from notification of the renewal of the mining lease by the Mining Registrar.

Orders