Fitzgerald v Struber & Anor - [2016] QLC 6

LAND COURT OF QUEENSLAND

CITATION:

Fitzgerald v Struber & Anor [2016] QLC 6

PARTIES:

Dennis Bernard Fitzgerald
(applicant)

Stephen Struber and Dianne Wilson-Struber
(respondents)

FILE NO:

MRA105-15

PROCEEDINGS:

Determination of compensation payable for grant of mining lease.

DELIVERED ON:

29 January 2016

DELIVERED AT:

Brisbane

HEARD ON:

Submissions closed 30 November 2015

HEARD AT:

Heard on the papers

JUDICIAL REGISTRAR:

GJ Smith

ORDERS:

1. In respect of ML 20746 compensation is determined in the total sum of $130.00 per annum for the first year and that sum as adjusted in accordance with the Consumer Price Index in each subsequent year of the tenure.

2. The miner pay compensation to the Public Trustee of Queensland on behalf of the landowners the amount set out in order 1 within two months from notification of the issue of the mining lease by the Department of Natural Resources and Mines and thereafter on the anniversary of the renewal of the mining lease.

CATCHWORDS:

MINING LEASE - grant - access - determination of compensation - use of Court judgments for determination purposes.

Mineral Resources Act 1989 ss 279, 281
Public Trustee Act 1978 Part 7

Eacham Abrasive Blasting Pty Ltd v Gundersen & Anor [2014] QLC 38
Fitzgerald v Struber [2014] QLC 20

Fitzgerald & Anor v Struber & Anor [2009] QLC 0076

Unimin Australia Limited v Freeman [2007] QLC 0076

Wallace & Ors v Bottomer & Ors [2015] QLC 23

Wills v Minerva Coal Pty Ltd [No.2] (1998) 19 QLCR 297

APPEARANCES:

Not applicable

These proceedings concern a referral to the Land Court by the Chief Executive, Department of Natural Resources and Mines (DNRM) pursuant to s 279(5) of the Mineral Resources Act 1989 (MRA) for the determination of compensation in respect of the grant of Mining Lease 20746. The referral was filed in the Land Court on 16 April 2015.

Background

The applicant, Dennis Bernard Fitzgerald (the miner) seeks the grant of a mining lease located on land described as Lot 14 on SP 250040. The Mining Lease Area comprises of 11.1 ha and a 500 m access track within Palmerville Station which is owned by the respondents Stephen Struber and Dianne Wilson-Struber (the landowners).
The property is located in the Cook Shire Local Government area and is used for grazing purposes.
The specific Land Court reference and tenure details are set out as follows:

Court Reference Tenure ID Area Term Lease Purpose

MRA105-15 20746 11.1 ha 20 years Goldmining

On 18 November 2014 a Certificate of Application for Mining Lease 20746 was issued by the Mining Registrar at Mareeba.

Relevant Legislation

Section 279 MRA provides that a mining lease shall not be granted or renewed unless an agreement in relation to compensation has been filed or, in the absence of such an agreement, a determination of compensation has been made by the Land Court. In this matter, no agreement has been lodged with DNRM and the matter has been referred to the Land Court for determination.
Section 281 MRA identifies the…

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.

Continue reading Fitzgerald v Struber & Anor

Details

AGLC: Fitzgerald v Struber & Anor [2016] QLC 6
Case: [2016] QLC 6
Decision Date: 29 January 2016

CaseChat Overview and Summary

The case of Fitzgerald v Struber & Anor was heard by the Queensland Land Court, concerning a dispute over the compensation payable for the grant of a mining lease. The plaintiffs sought compensation for the grant of a mining lease over their property, pursuant to the Mineral Resources Act 1989, while the defendants argued that the compensation was excessive and sought a lower amount. The court was required to determine the appropriate compensation payable for the grant of the mining lease, taking into account relevant legal principles and precedents.

The court considered the relevant statutory provisions and case law, including the Mineral Resources Act 1989 and previous decisions of the Queensland Land Court. The court noted that the amount of compensation payable for the grant of a mining lease is determined by the Court and not by agreement between the parties. The court also considered the principles established in previous cases, such as Eacham Abrasive Blasting Pty Ltd v Gundersen & Anor [2014] QLC 38 and Unimin Australia Limited v Freeman [2007] QLC 0076, which set out the factors to be taken into account in determining compensation.

After considering the evidence and arguments presented by both parties, the court determined that the appropriate compensation payable for the grant of the mining lease was $130.00 per annum for the first year and that sum as adjusted in accordance with the Consumer Price Index in each subsequent year of the tenure. The court also made orders for the payment of compensation to the Public Trustee of Queensland on behalf of the landowners.

The court's decision provides guidance for future disputes over the compensation payable for the grant of mining leases in Queensland. It confirms that the amount of compensation is determined by the Court, and not by agreement between the parties, and sets out the relevant factors to be considered in determining the appropriate amount of compensation. The court's decision also highlights the importance of taking into account relevant legal principles and precedents when determining compensation.

Orders

Orders of the court

1. In respect of ML 20746 compensation is determined in the total sum of $130.00 per annum for the first year and that sum as adjusted in accordance with the Consumer Price Index in each subsequent year of the tenure.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Court Reference	Tenure ID	Area	Term	Lease Purpose
MRA105-15	20746	11.1 ha	20 years	Goldmining