Bookall Mining Company Pty Ltd v Bar Barrum People #4

[2009] QLC 185

LAND COURT OF QUEENSLAND

CITATION:

Bookall Mining Company Pty Ltd v Bar Barrum People #4 [2009] QLC 0185

PARTIES:

Bookall Mining Company Pty Ltd
(applicant)

v.

Bar Barrum People #4
(respondent)

FILE NOS:

MRA1310-08

DIVISION:

Land Court of Queensland

PROCEEDING:

Application for variation of access under the Mineral Resources Act 1989

DELIVERED ON:

26 November 2009 (ex tempore)

DELIVERED AT:

Atherton

HEARD AT:

Atherton

MEMBER:

Mr PA Smith

ORDERS:

1.    Consent to the variation of access given.

2.    Compensation determined for variation of access in the nominal amount of $50.

3.    Compensation be paid by the applicant to the respondent within 28 days of the registration of the variation of access by the Mining Registrar.

CATCHWORDS:

Variation of access to Mining Lease – agreement of respondent to variation of access - no appearance by respondent – orders made in absence of a party – interest of justice not to delay matter further – compensation - Mineral Resources Act 1989

APPEARANCES:

Mr D Anthony, David Anthony Solicitors, on behalf of the applicant
No appearance on behalf of the respondent

1. I have before me an application pursuant to section 317 of the Mineral Resources Act 1989 (“MRA”) relating to a variation of access by Bookall Mining Company Pty Ltd. The applicant has proposed this variation of access and as part of that proposal has undertaken negotiations with the respondent Bar Barrum People #4. The matter was referred to the Land Court as the Mining Registrar was not then satisfied that the consent of the respondent had been obtained.

2. Subsequent to a directions hearing held by the Land Court, an inspection was undertaken involving representatives of the Bar Barrum People and, as a result of this, Exhibits 1 and 2 have been provided to the court today. The respondent has not appeared in person today and it is clear from the correspondence, as set out in the exhibits and by which they indicated their consent to the variation of access, that they did not consider any further appearance would be necessary. I have no hesitation in ruling that the consent of the respondent has been obtained for the variation of access. 

1. Section 317 of the MRA also requires the court to move to a second phase which is the amount of compensation, if any, which should be awarded. I note that the renewal of this mining lease was subject to a decision by then Mining Referee Windridge in the Land and Resources Tribunal on 1 February 2006. However, given the access as then covered by the mining lease application, the respondent was not involved in receiving any compensation for that access.

1. In the circumstances of this matter and in order to keep the costs involved for all persons as low as possible, and taking into account the contents of Exhibits 1 and 2, I have decided to award a nominal amount of compensation to the respondent in the sum of $50 with respect to the access to Mining Lease 5126.  In determining this sum I do so in the clear understanding that should the respondent not have understood the proper consequences of their failure to appear today, the respondent may make an application to the Court to have the orders of today set aside as orders made in their absence[1] or of course, alternatively, they may appeal this determination. Conversely of course, if the respondent is happy to have no compensation (as would appear to be the case from their correspondence) or at best only minimal compensation (as awarded), then the matter can go ahead without further delay and the applicant can proceed with its new access. In the interests of justice I believe it is not in anybody's interest to delay this matter any further.

   [1]     Rule 45 (2) Land Court Rules.

Orders

1.   Consent to the variation of access given.

2.   Compensation determined for variation of access in the nominal amount of $50.

3.   Compensation be paid by the applicant to the respondent within 28 days of the registration of the variation of access by the Mining Registrar.

P A SMITH

MEMBER OF THE LAND COURT