Endocoal Limited v Emin Pastoral Company Pty Ltd

[2012] QLC 11

0BLAND COURT OF QUEENSLAND

CITATION:

Endocoal Limited v EMIN Pastoral Company Pty Ltd & Ors  [2012] QLC 0011

PARTIES:

Endocoal Limited
(applicant)

v.

EMIN Pastoral Company Pty Ltd, Eagle Field Pastoral Company Pty Ltd, Bilyana Pastoral Company Pty Ltd, Rhodes Creek Pastoral Company Pty Ltd, Edward Peter Mason, Mora Ellen Mason and Valda Ann Mason
(respondents)

FILE NO:

MRA113-12

DIVISION:

General

PROCEEDING:

General Application to strike out proceeding

DELIVERED ON:

16 March 2012 [Ex Tempore]

DELIVERED AT:

Brisbane

HEARD AT:

Brisbane

MEMBER:

Mr PA Smith

ORDER:

1.   The applicant may proceed with entry on the respondents’ properties for preliminary activities in accordance with its entry notice.

2.   Advanced activities in accordance with the entry notice is restrained until 5pm on Monday, 26 March 2012

3.   This hearing is adjourned until 2.30pm on Monday, 26 march 2012 in Court 22, Level 5, 363 George Street, Brisbane.

4.   The parties will attend mediation by Member Isdale on Tuesday, 20 March 2012 at 11am in Court 43, Level 8, 363 George Street, Brisbane.

5.   The draft conduct and compensation agreement as at 5 January 2012 as between the parties be provided confidentially to the Mediator by 5pm today.

CATCHWORDS:

Mining
Mineral Resources Act 1989 – entry of property for exploration purposes – compensation and conduct agreement – operating of schedule 1 – complex question

Mediation
Urgent referral of part heard application

Restraining Order
Explorer restrained from carrying out advanced activities until matter determined

APPEARANCES:

Mr Tim Stork, Solicitor of Norton Rose Australia for the applicant.

Mr George Houen, Agent of Landholder Services for the respondents.

1. In this matter, the applicant Endocoal Limited filed an originating application in the Land Court on 17 February 2012. The application was pursuant to schedule 1 s.22 (3) of the Mineral Resources Act 1989. In response to that originating application the respondent landholders, EMIN Pastoral Company Pty Ltd & Ors filed a general application on 12 March 2012 seeking a strike out of the originating application. The hearing of the strike out application was listed for today before myself. At the commencement of the hearing of the strike out application I granted leave to the applicant to file an amended originating application. The main force of the difference between the originating application and the amending application is that the documents make it clear that the parties have been unable to agree to the terms of the conduct and compensation agreement.

2. When one reads the material and the originating application in light of the amendment, the position appears to be that the dollar amount of compensation for the impact of the activities on the land has been agreed between the parties but the manner in which the advance activities are to be undertaken on the land has not been agreed or in simple terms the conduct of the parties has not been agreed to.

3. Of course there are statutory provisions which apply to the conduct of the applicant in these proceedings. In itself, schedule 1 has a complicated arrangement with respect to the determination by the Land Court of compensation which is dealt with under s.22 of schedule 1 as well as questions relating to the conduct and compensation which is dealt with under s.25, s.26 and s.27.

1. The manner in which these sections inter-relate with the provisions in s.5 of schedule 1, which refers to a Land Court application exemption which then links to s.11 of schedule 1 relating to a s.22 application is one which has never been considered by any Court in this State and is a matter of considerable importance.

2. In the circumstances of this case I considered it appropriate to allow both Mr Stork for the applicant and Mr Houen for the respondents an opportunity to take further instructions and to undertake further detailed research into the inter-relationships between the various provisions of schedule 1 and the legislative differences relating to compensation as opposed to conduct.

3. Of course this is at the heart of Mr Houen’s strike out application as he is in effect saying that there has been no valid referral to the Court and in the absence of a valid referral to the Court the applicant is not able to rely upon the Court exemption as referred to s.5 and s.11. This is obviously a serious matter for the explorer in this case and for the landholders and is not a matter I wish to consider lightly.

4. Both parties have indicated a desire to proceed to mediation; certainly the applicant has and Mr Houen has indicated that his client would be prepared to enter into mediation if so ordered by the Court. It has also become clear that some advanced activities may already have begun.

5. In accordance with the notice that has been issued, it is my view that until the determination of Mr Houen’s general application, the status quo should remain in place between the parties particularly when complex law is being considered as in this case.

6. On the basis of the limited facts that I have before me, I understand that all the applicant is undertaking at this stage is preliminary activities and that there will not be major difficulties placed on the applicant by ordering the non-carrying out of advanced activities until this matter is determined.

7. Accordingly, I have decided to refer this matter to urgent mediation before Member Isdale of this Court. Such mediation is to commence at 11am on Tuesday, 20 March 2012.

8. I further propose making orders specifically allowing the applicant to proceed with preliminary activities in accordance with its notice.

9. I propose ordering that advanced activities be restrained until 5pm on Monday, 26 March 2012.

1. The hearing of Mr Houen’s application be adjourned until 2.30pm on Monday, 26 March 2012 to both give the parties additional opportunity to further research the law in this matter and consider my comments made in these proceedings to date and also to conduct the mediation which may see the resolution of the issue between the parties.

2. The parties shall attend mediation before Member Isdale as already referred to on Tuesday, 20 March 2012 at 11am.

3. The parties have themselves been making some amendments to the draft standard conduct and compensation agreement, and have a version as at of 5 January 2012 and I order that version be made available to the mediator by 5pm today and be the starting point of the negotiations between the parties as to the determination of the conduct provisions.

Orders

1.   The applicant may proceed with entry on the respondents’ properties for preliminary activities in accordance with its entry notice.

2.   Advanced activities in accordance with the entry notice are restrained until 5pm on Monday, 26 March 2012.

3.   This hearing is adjourned until 2.30pm on Monday, 26 March 2012 in Court 22, Level 5, 363 George Street, Brisbane.

4.   The parties will attend mediation by Member Isdale on Tuesday, 20 March 2012 at 11am in Court 43, Level 8, 363 George Street, Brisbane.

5.   The draft conduct and compensation agreement as at 5 January 2012 as between the parties be provided confidentially to the Mediator by 5pm today.

PA SMITH

MEMBER OF THE LAND COURT