CITATION: Re Fitzgerald & Anor and SR Struber & Anor [2009] QLC 0076
PARTIES:1. Ralph De Lacey and Cheryl May Fitzgerald
(Applicants)
- and -
2. Cheryl May Fitzgerald
(Applicant)
- and -
3. Ralph De Lacey and Cheryl May Fitzgerald
(Applicants)
- and -
4. Raymond Michael Fitzgerald
(Applicant)
v.
Stephen Roy Struber and Dianne Wilson-Struber (Respondents)
FILE NO/S:1. MRA1334-08
(VOA127/2008 - Mining Lease 20419)
2.MRA1335-08
(VOA128/2008 - Mining Leases 3054, 3134 and 20248)
3. MRA1338-08
(VOA129/2008 - Mining Lease 20272)
4.MRA1336-08
(VOA130/2008 - Mining Lease 20408, 20420, 20421 and 20422)
PROCEEDING: Applications relating to variation of access
DELIVERED ON: 21 May 2009 (Ex tempore)
DELIVERED AT: Cooktown
MEMBER:MR PA Smith, Member
ORDERS:1. I award compensation in the all up term of $5 per hectare per year, to the variation of access area of 35 ha, for the variation of access for each of the 6 Mining Cases and 3 Mining Lease Applications.
2.I grant liberty to the parties to apply for an amendment of the compensation order should evidence held by the Mining Registrar show that the width of access with respect to any of the Mining Leases or Mining Lease applications is in other than 10 metres in width.
3.I make no order as to costs.
4. I direct the Registrar of the Land Court to provide a copy of these reasons to the Honourable the Minister for Natural Resources, Mines and Energy and Minister for Trade, bringing to the Honourable the Minister's attention the comments I make at paragraph 26.
CATCHWORDS: MINING LEASES – DETERMINATION OF COMPENSATION – principles – misleading public information asto state of road – public benefit – historic mining – tourist access – doubling up - costs
Horn v. Sunderland Corporation [1941] 2 K.B. 26 at 43.
Zimmerebner v. Hawkins & Ors (1999) 20 QLCR 71
Unimin Australia Limited v. Maurice and Tricia Freeman [2007] QLCR 76
Edwards v. Calmsden & Ors [2007] QLRT 118 White v. Warner & Anor [2007] QLRT 53 Titan Sandstone Pty Ltd v. ChongHerr Investments Pty Ltd [2009] QLRT 96
APPEARANCES: Mr R De Lacey appeared on his own behalf
Mrs C Fitzgerald appeared on behalf of CM and RM Fitzgerald
Ms A English of Bottoms English Lawyers on behalf of the respondents.
Background
Today in Cooktown I have been hearing seven matters which were all listed together. In referring to seven matters as listed together that itself is in some ways a misnomer as will become obvious when I deal with the specific matters that relate to this decision, but for the purposes of this brief introduction the matters have one common stream and that is that the respondents in each matter are the landholders of "Palmerville Station", Mr and Mrs Struber.
The matters before me today have been for the most part settled leaving four files requiring a decision. Those four files are VOA128/2008 which…
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
AGLC
Fitzgerald & Ors v Struber & Anor [2009] QLC 76
Case
[2009] QLC 76
Decision Date
CaseChat Overview and Summary
In the Land Court of Queensland, the court presided over by Mr PA Smith heard applications relating to the variation of access under the Mineral Resources Act 1989. The applicants, Ralph De Lacey, Cheryl May Fitzgerald, and Raymond Michael Fitzgerald, sought variation of access for six mining leases and three mining lease applications on land held by the respondents, Stephen Roy Struber and Dianne Wilson-Struber. The court was required to decide on the amount of compensation, if any, to be paid to the respondents for the variation of access. The court also considered the impact of misleading public information regarding the status of Whites Creek Road as an access route for mining and tourism activities.
The court determined that compensation should be awarded to the respondents for the variation of access. However, the court noted the difficulty in determining the exact amount of compensation due to limited evidence and the unique factual matrix of the case. The court referred to previous cases and authorities to arrive at a fair and just compensation amount. In this case, the court awarded compensation at the rate of $5 per hectare per year for the variation of access area of 35 hectares for each of the six mining leases and three mining lease applications. The court also granted liberty to the parties to apply for an amendment of the compensation order if evidence held by the Mining Registrar showed that the width of access with respect to any of the Mining Leases or Mining Lease applications was other than 10 meters in width.
The court made no order as to costs, acknowledging the grievances of both parties in the matter. However, the court directed the Registrar of the Land Court to provide a copy of these reasons to the Honourable the Minister for Natural Resources, Mines and Energy and Minister for Trade, bringing to the Honourable the Minister's attention the comments made at paragraph 26. The court recommended that an ex gratia payment be considered for the Strubers to account for costs that they had incurred through no fault of their own in their endeavours to rectify a situation that had been less than satisfactory.