Berry & Parkinson v BHP Coal Pty Ltd; BHP Coal Pty Ltd v Berry & Parkinson

[1999] QLC 4

LAND COURT

BRISBANE
9 FEBRUARY 1999

In the matter of an appeal by R & LT Berry and KJ and RB Parkinson and a cross-appeal by BHP Coal Pty Ltd and Other Members of the Central Queensland Coal Associates against the determination of the Mining Warden’s Court, Emerald, of compensation payable in terms of section 282 of the Mineral Resources Act 1989 in respect of Special Coal Mining Lease No 1782. (A98-01 and A98-02).

R & LT Berry and KJ & RB Parkinson

Appellants

v.
BHP Coal Pty Ltd and Other Members of the Central Queensland Coal
Associates

Respondents

BHP Coal Pty Ltd and Other Members of the Central Queensland Coal
Associates

Cross Appellants

v.
R & LT Berry and KJ & RB Parkinson

Respondents

Determination and Orders

On 27 November 1998 I published my reasons concerning an appeal and cross-appeal to this Court from a determination of the Wardens Court awarding compensation with respect to the proposed grant of a mining lease to the respondent miner over land owned by the appellants. In my reasons I indicated that the cross- appeal would be allowed and that the appeal by the land owners had been generally unsuccessful, however, invited the parties to make further submissions on the question of my jurisdiction to determine any amount under s.281(4)(e) Mineral Resources Act 1989 (MRA) with respect to "business inconvenience" arising out of the probable imposition of Capital Gains Tax on the proceeds of compensation. In due course the parties informed me that the issue of the sum for "business inconvenience" had been agreed between them at $25,000. In view of this, the only matters that remain to be dealt with are the question of costs and the final orders. The determination and orders, including orders for costs, were made in Chambers on 27 January 1999. I now publish the determination and orders and the supporting reasons. The instant matters comprised two of three appeals and a cross-appeal heard together. Apart from some brief documentary evidence the appeals were heard on the record with substantive submissions being made over a period of 2½ days. Part of that time was taken up with the issue of the form in which certain additional evidence should take, the issue of the admissibility of such additional evidence being dealt with earlier.

I have set out in my Determination and Orders in the matter Wills v. Minerva Coal Pty Ltd, handed down today, the law which I found there to be relevant with regard to the matter of costs. That summary of law is relevant in the present case and I will not repeat it here. I now turn to consider the matters which are relevant to my consideration of the question of costs, first with respect to the appeal by the land owners.

The appellants were successful in having certain grounds of appeal decided in their favour (Grounds 8 and 12(b) and (c)) regarding the 1986 agreement; Ground 10 regarding the interchangeability of the phrases "status and use" and "special value"; Ground 12(a) regarding the existence of the mining lease at the time of purchase of "Lake Vermont"; Ground 12(d) regarding the so-called "leaseback agreement"; arguably Ground 13 regarding the Warden's views on s.281(4)(c); and Ground 21) yet conclusions in favour of the appellants' views on these matters did not convert to any finding in their favour on the substantive issues relating to: the assessment of the additional amount (s.281(4)(e)) in the range of 50% - 100%; the award of a premium taking into account the "hub" with the calculation being based on the whole of the agreed compensation figure (s.281(4)(c)); and the matter of Capital Gains Tax (s.281(3)(a)(vi)).

I should offer a comment concerning the matter "business inconvenience". I was prepared to find that there was sufficient evidence for me to settle on an amount under this head, however, I was aware that the respondents had indicated an intention to submit to the contrary. My main concern, however, related to the question of jurisdiction. I felt that the conclusion that I was comfortable in drawing may not have been supported by the appeal grounds, there being none that appeared to raise the issue.

On balance, and without the benefit of submission, I lean to the view that I did not have jurisdiction to make any award for "business inconvenience" as it was not a matter made "relevant to the appeal" (s.282(5)). In those circumstances, and given that "business inconvenience" was not a matter raised by the parties, this matter is not relevant to the question of costs.

It is important to observe that the parties were confronted with what I described in my reasons as "all but intractable legislation". This, I think, is a significant matter to take into account in considering the question of costs in a matter such as this. This is not a case where difficult legislation is a relevant but peripheral or incidental matter, but is one where the measure of the appellants' right to compensation is based squarely on the legislation under consideration. In such circumstances and given the limited assistance available from decided cases, it is not surprising that the appellants elected to pursue a range of matters on appeal. I refer particularly to the premium (s.281(4)(c)), the additional amount (s.281(4)(e)) and the issue of Capital Gains Tax, (s.281(3)(a)(vi)). To some extent with respect to these matters the appellants raised arguable propositions. Nevertheless, the appellants sought, in my view, to extend the meaning of s.281 MRA to the point that there was a clear attempt to duplicate compensation in some respects.

The three appeals and the cross-appeal were argued together, thus reducing the burden on the respondents that might have arisen from three separate appeals. The resultant economies and efficiencies are noted, however, they were eroded to some extent by the lack of reference to the record in support of particular grounds of appeal. This imposed some small burden on the respondents but was more troublesome to the Court.

The appellants submitted that each party bear its own costs. The respondents submitted that the appellants pay the respondents' costs.

Having regard to the observations that I have made above, I conclude that the lack of success of the appellants should be taken into account offset by full recognition being given to the complex nature of the legislation under which the appellants' right to compensation is assessed. There is justification in my view for an award of partial costs. The result is that I conclude that the appellants should pay 70% of the respondents' costs.

Order

1.          The appeal is dismissed.

2.          The appellants shall pay 70% of the respondents' costs of and incidental to the appeal including reserved costs to be ascertained and fixed by the Taxing Officer of the Supreme Court at Brisbane according to the scale of costs prescribed by law for the time being in respect of proceedings in the Supreme Court and in accordance with the provisions of s.41(9) of the Land Act 1962.

I now turn to consider the cross-appeal.
The appellants miner cross-appealed on the basis that a premium in the

amount of $100,000 should not be allowed (s.281(4)(c). That appeal was successful. The learned Warden had at first instance determined a reduced additional amount, having regard to the premium he had settled upon (s.281(4)(e)). Given the result of the cross-appeal, there is a need to vary the determination at first instance by awarding an amount calculated in accordance with s.281(4)(e).

Given the success of the cross-appeal by the applicant miner, it is appropriate that this be taken into account in determining costs. I am of the view, however, that it is appropriate to take into account the complex nature of the legislation under which the landowner's right to compensation is assessed. There is justification, in my view, for an award of partial costs. The result is that I conclude that the landowner should pay 85% of the applicant miner's costs.

Order

1.          The cross-appeal is allowed.

2.          The determination of the Warden is varied such that compensation is determined in the amount of $757,050.00 which figure includes the amounts of compensation agreed by the parties ($665,500 and $25,000 for "business inconvenience":)

3.          The amount determined as compensation is to be paid in full not later than 30 days after the grant of the mining lease.

4.          The respondents shall pay 85% of the cross-appellants' costs of and incidental to the appeal including reserved costs to be ascertained and fixed by the Taxing Officer of the Supreme Court at Brisbane according to the scale of costs prescribed by law for the time being in respect of proceedings in the Supreme Court and in accordance with the provisions of s.41(9) of the Land Act 1962.

MEMBER OF THE LAND COURT