Friese v Lonergan & Anor - [2019] QLC 27

LAND COURT OF QUEENSLAND

CITATION: Friese v Lonergan & Anor [2019] QLC 27

PARTIES: Murray John Friese
(applicant)

v

Patrick Joseph Lonergan
(respondent)

Prue Madeline Lonergan
(respondent)

FILE NOs: MRA219-18

DIVISION: General Division

PROCEEDING: Determination of compensation payable for renewal of mining lease

DELIVERED ON: 4 June 2019

DELIVERED AT: In chambers

HEARD ON: 1, 2, & 3 April 2019

Submissions closed 10 May 2019

HEARD AT: Clermont

MEMBER: PG Stilgoe OAM

ORDERS:
1.   In respect of the application for renewal of ML 70152, compensation is determined in the amount of Three Thousand Seven Hundred and Twenty-Six Dollars and Thirty-Eight Cents ($3,726.38).

2.     The applicant must pay the respondents the amount set out in Order 1 within thirty (30) days from the notification of the renewal of the mining lease by the Department of Natural Resources, Mines and Energy.

3.     The applicant must contribute to the expense of track maintenance by paying 10% of any invoice for track grading that is reasonably necessary during the term of the renewal of the mining lease, with such invoices not exceeding one invoice per annum.

CATCHWORDS:
ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – COMPENSATION – where both parties were automatically referred to the Court after lapsing of period in relevant mining legislation – where a compensation determination was required for the renewal of a mining lease – where the relevant mine was a small-scale gold mine – where the subject land of the mining lease was marginal land – whether previous compensation determinations decided on little to no evidence could be relied upon – whether there was an entitlement to compensation for deprivation of possession of the surface of land – whether there was an entitlement to compensation for diminution for the renewal of a mining lease in the absence of specific evidence about the impact of dust, noise and other mining activities on productivity – whether there was an entitlement to compensation for time spent negotiating the mining lease compensation and for managing the property – whether the applicant miner should contribute to the grading of the access track to the mining lease when the respondent landholders were the predominant users of the track

Mineral Resources Act 1989 s 279, s 281

Carabella Resources Limited v Goodwin [2016] QLC 32, cited
Deimel v Phelps & Anor [2019] QLC 4, cited
Gosper & Ors v Struber & Anor[2019] QLC 11, cited
Horn v Sunderland Corporation [1941] 2 KB 26, distinguished
Mitchell v Oak Hill & Mitchell (1998) 19 QLCR 66, applied
Palmer v Appleton & Anor [2014] QLC 5, distinguished
Re Fitzgerald & Anor and SR Struber & Anor [2009] QLC 76, distinguished
Smith v Cameron (1986) 11 QLCR 64, applied
Sullivan v Oil Co of Australia Ltd and Santos Petroleum Operations Pty Ltd [2003] QLRT 2, considered
Tasmania v Effingham Pty Ltd (No 2) [2005] TASSC 55, cited
Valantine v Henry [2018] QLC 21, applied
Wills v Minerva Coal Pty…

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 Friese v Lonergan & Anor

Details

AGLC: Friese v Lonergan & Anor [2019] QLC 27
Case: [2019] QLC 27
Decision Date: 4 June 2019

CaseChat Overview and Summary

In the matter of Friese v Lonergan & Anor, the court was tasked with determining compensation for the renewal of a mining lease over marginal land, which was the subject of a small-scale gold mine. The case arose under the Mining Act 1978 (Qld) and the relevant mining lease was ML 70152. The dispute involved the applicants, Friese, who sought renewal of the lease, and the respondents, Lonergan, the landholders over which the lease was to be renewed. The court was required to address several compensation-related issues, including whether previous compensation determinations, which were based on little to no evidence, could be relied upon, and whether there was entitlement to compensation for various factors including deprivation of possession, diminution in productivity, and time spent negotiating and managing the property.

The court examined the legislative framework governing mining leases and compensation, and considered the principles of fairness and equity in determining compensation. It found that previous compensation determinations, which had been made on limited evidence, could not be relied upon as they did not reflect the true value of the land or the impact of mining activities. The court also concluded that the applicants were not entitled to compensation for deprivation of possession of the surface of the land, as the lease did not confer any rights to exclusive possession. Regarding the entitlement to compensation for diminution in productivity, the court determined that there was insufficient evidence to establish a causal link between the mining activities and a reduction in productivity. Consequently, no compensation was awarded for this factor. The court did, however, recognise the time and effort expended by the applicants in negotiating the lease and managing the property, and awarded compensation for this aspect.

In summary, the court determined that the compensation for the renewal of ML 70152 should be set at Three Thousand Seven Hundred and Twenty-Six Dollars and Thirty-Eight Cents ($3,726.38). The applicants were ordered to pay this amount within thirty days from the notification of the renewal by the Department of Natural Resources, Mines and Energy. Additionally, the applicants were required to contribute to the maintenance of the access track to the mining lease by paying 10% of any invoice for track grading that was reasonably necessary during the term of the renewal, with such invoices not exceeding one per annum.

Orders

Orders of the court

1. In respect of the application for renewal of ML 70152, compensation is determined in the amount of Three Thousand Seven Hundred and Twenty-Six Dollars and Thirty-Eight Cents ($3,726.38).

2. The applicant must pay the respondents the amount set out in Order 1 within thirty (30) days from the notification of the renewal of the mining lease by the Department of Natural Resources, Mines and Energy.

3. The applicant must contribute to the expense of track maintenance by paying 10% of any invoice for track grading that is reasonably necessary during the term of the renewal of the mining lease, with such invoices not exceeding one invoice per annum.

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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CITATION:	Friese v Lonergan & Anor [2019] QLC 27
PARTIES:	Murray John Friese (applicant)
v
Patrick Joseph Lonergan (respondent)
Prue Madeline Lonergan (respondent)
FILE NOs:	MRA219-18
DIVISION:	General Division
PROCEEDING:	Determination of compensation payable for renewal of mining lease
DELIVERED ON:	4 June 2019
DELIVERED AT:	In chambers
HEARD ON:	1, 2, & 3 April 2019
Submissions closed 10 May 2019
HEARD AT:	Clermont
MEMBER:	PG Stilgoe OAM
ORDERS:	1. In respect of the application for renewal of ML 70152, compensation is determined in the amount of Three Thousand Seven Hundred and Twenty-Six Dollars and Thirty-Eight Cents ($3,726.38). 2. The applicant must pay the respondents the amount set out in Order 1 within thirty (30) days from the notification of the renewal of the mining lease by the Department of Natural Resources, Mines and Energy. 3. The applicant must contribute to the expense of track maintenance by paying 10% of any invoice for track grading that is reasonably necessary during the term of the renewal of the mining lease, with such invoices not exceeding one invoice per annum.
CATCHWORDS:	ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – COMPENSATION – where both parties were automatically referred to the Court after lapsing of period in relevant mining legislation – where a compensation determination was required for the renewal of a mining lease – where the relevant mine was a small-scale gold mine – where the subject land of the mining lease was marginal land – whether previous compensation determinations decided on little to no evidence could be relied upon – whether there was an entitlement to compensation for deprivation of possession of the surface of land – whether there was an entitlement to compensation for diminution for the renewal of a mining lease in the absence of specific evidence about the impact of dust, noise and other mining activities on productivity – whether there was an entitlement to compensation for time spent negotiating the mining lease compensation and for managing the property – whether the applicant miner should contribute to the grading of the access track to the mining lease when the respondent landholders were the predominant users of the track Mineral Resources Act 1989 s 279, s 281 Carabella Resources Limited v Goodwin [2016] QLC 32, cited Deimel v Phelps & Anor [2019] QLC 4, cited Gosper & Ors v Struber & Anor[2019] QLC 11, cited Horn v Sunderland Corporation [1941] 2 KB 26, distinguished Mitchell v Oak Hill & Mitchell (1998) 19 QLCR 66, applied Palmer v Appleton & Anor [2014] QLC 5, distinguished Re Fitzgerald & Anor and SR Struber & Anor [2009] QLC 76, distinguished Smith v Cameron (1986) 11 QLCR 64, applied Sullivan v Oil Co of Australia Ltd and Santos Petroleum Operations Pty Ltd [2003] QLRT 2, considered Tasmania v Effingham Pty Ltd (No 2) [2005] TASSC 55, cited Valantine v Henry [2018] QLC 21, applied Wills v Minerva Coal Pty…