Ge Kelly v Struber - [2012] QLC 74

LAND COURT OF QUEENSLAND

CITATION: GE Kelly v Struber & Anor [2012] QLC 74

PARTIES:
Gilbert Errol Kelly

(Applicant)

v.

Stephen Struber and Dianne Wilson-Struber

(Respondents)

FILE NOs: MRA694-10, MRA724-10, MRA730-10

DIVISION: Land Court of Queensland

PROCEEDINGS: Applications for Determination of Compensation

DELIVERED ON: 21 December 2012

DELIVERED AT: Brisbane

HEARD AT: Cairns

MEMBER: His Honour Mr WL Cochrane

ORDERS:
1.        The determination of compensation in respect of each file will be as follows:

(a)     In respect of file MRA694-10 (relating to ML20472) with a calculated area of 12 hectares (12 km x 10 metres) for access compensation is determined in a figure of $5 per hectare and producing a total compensation of $60 per annum.

(b)     In respect of file MRA724-10 (relating to ML20473):

(i)   With respect to access calculated at 36 hectares (36 kilometres x 10 metres) compensation is determined at $180 at a rate of $5 per hectare per annum.

(ii) With respect to the Mining Lease area for an area of 187.5 hectares calculated at $10 per hectare compensation will be $1,875 per annum.

(c) In respect of file MRA730-10 (relating to ML20475):

(i)   With respect to access calculated at 36 hectares (36 kilometres x 10 metres) compensation is determined at $180 at a rate of $5 per hectare.

(ii) With respect to the Mining Lease for an area of 13.8570 ha (rounded up 14 hectares) calculated at $10 per hectare compensation is determined at $140 per annum.

2.        With respect to each of the determinations of compensation above I direct that the miner should pay the relevant compensation to the current landowner within two (2) months of notification of the grant of the Mining Lease by the Mining Registrar, and thereafter such compensation should be paid annually in advance.

CATCHWORDS:
Mining – Mining Lease – Determination of Compensation - Mineral Resources Act 1989 s.281 –

Absence of Evidence

Re Wallace & Ors & Evans [2006] QLRT 93 applied.

Dembowski & Anor & Struber & Anor, Re [2006] QLRT 44 (26 May 2006)

Background

These three matters are referrals by the Mining Registrar at Mareeba for the determination of compensation payable in respect of Mining Leases applied for by the Applicant Gilbert Errol Kelly.

File MRA694-10

File MRA694-10 relates to Mining Lease ML20472 and concerns access sought by Mr Kelly across Palmerville Station property the leasehold of which is held by the Respondents.
On 10 May 2005 Mr Kelly made an application for a Mining Lease ML 20472.
The lease sought was to achieve access over an area which was already the subject of an Exploration Permit EPM 14001 held by Terence A Kinnaird which EPM area was 44.7734 hectares.

The access is required to allow Mr Kelly to reach a mining lease conducted on Lot 23 on PH 1796 Parish of Aralba, County of Strathleven.
It is difficult to glean from the application documents filed by Mr Kelly[1] exactly the length of the access sought by him although I note that at page 8…

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 Ge Kelly v Struber

Details

AGLC: Ge Kelly v Struber [2012] QLC 74
Case: [2012] QLC 74
Decision Date: 21 December 2012

CaseChat Overview and Summary

Ge Kelly was the plaintiff and Struber was the defendant in a case before the Supreme Court of Queensland. The dispute centred around the compensation payable to the plaintiff in relation to three mining leases granted to the defendant. The plaintiff, a landowner, sought compensation for the land affected by the mining leases under the Mineral Resources Act 1989. The court had to determine the compensation to be paid for each of the mining leases, taking into account the relevant areas of land and statutory rates for access and mining lease compensation.

The primary legal issue before the court was the calculation of compensation for the mining leases. This involved interpreting the relevant provisions of the Mineral Resources Act 1989, particularly section 281, to determine the appropriate rates and areas for compensation. The court had to decide on the compensation for the access to the mining leases and the compensation for the area of the leases themselves. The court also had to consider the timing and method of payment of the compensation.

In its judgment, the court meticulously calculated the compensation for each of the mining leases. For the first lease, the court determined that the compensation for access was $5 per hectare, and for the lease area, it was $10 per hectare. This resulted in a total compensation of $60 per annum. For the second lease, the court calculated access compensation at $5 per hectare, leading to $180 per annum, and for the lease area, it was $10 per hectare, leading to $1,875 per annum. For the third lease, the compensation for access was again $5 per hectare, amounting to $180 per annum, and for the lease area, it was $10 per hectare, resulting in $140 per annum. The court ordered that the compensation should be paid annually in advance, starting within two months of the notification of the grant of the Mining Lease by the Mining Registrar.

The court ordered that the defendant should pay the determined compensation to the plaintiff within two months of the notification of the grant of the Mining Lease by the Mining Registrar, and thereafter, the compensation should be paid annually in advance.

Orders

Orders of the court

1. The determination of compensation in respect of each file will be as follows:

(a) In respect of file MRA694-10 (relating to ML20472) with a calculated area of 12 hectares (12 km x 10 metres) for access compensation is determined in a figure of $5 per hectare and producing a total compensation of $60 per annum.

(b) In respect of file MRA724-10 (relating to ML20473):

(i) With respect to access calculated at 36 hectares (36 kilometres x 10 metres) compensation is determined at $180 at a rate of $5 per hectare per annum.

(ii) With respect to the Mining Lease area for an area of 187.5 hectares calculated at $10 per hectare compensation will be $1,875 per annum.

(i) With respect to access calculated at 36 hectares (36 kilometres x 10 metres) compensation is determined at $180 at a rate of $5 per hectare.

(ii) With respect to the Mining Lease for an area of 13.8570 ha (rounded up 14 hectares) calculated at $10 per hectare compensation is determined at $140 per annum.

2. With respect to each of the determinations of compensation above I direct that the miner should pay the relevant compensation to the current landowner within two (2) months of notification of the grant of the Mining Lease by the Mining Registrar, and thereafter such compensation should be paid annually in advance.

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:	GE Kelly v Struber & Anor [2012] QLC 74
PARTIES:	Gilbert Errol Kelly (Applicant)
v.
Stephen Struber and Dianne Wilson-Struber (Respondents)
FILE NOs:	MRA694-10, MRA724-10, MRA730-10
DIVISION:	Land Court of Queensland
PROCEEDINGS:	Applications for Determination of Compensation
DELIVERED ON:	21 December 2012
DELIVERED AT:	Brisbane
HEARD AT:	Cairns
MEMBER:	His Honour Mr WL Cochrane
ORDERS:	1. The determination of compensation in respect of each file will be as follows: (a) In respect of file MRA694-10 (relating to ML20472) with a calculated area of 12 hectares (12 km x 10 metres) for access compensation is determined in a figure of $5 per hectare and producing a total compensation of $60 per annum. (b) In respect of file MRA724-10 (relating to ML20473): (i) With respect to access calculated at 36 hectares (36 kilometres x 10 metres) compensation is determined at $180 at a rate of $5 per hectare per annum. (ii) With respect to the Mining Lease area for an area of 187.5 hectares calculated at $10 per hectare compensation will be $1,875 per annum. (c) In respect of file MRA730-10 (relating to ML20475): (i) With respect to access calculated at 36 hectares (36 kilometres x 10 metres) compensation is determined at $180 at a rate of $5 per hectare. (ii) With respect to the Mining Lease for an area of 13.8570 ha (rounded up 14 hectares) calculated at $10 per hectare compensation is determined at $140 per annum. 2. With respect to each of the determinations of compensation above I direct that the miner should pay the relevant compensation to the current landowner within two (2) months of notification of the grant of the Mining Lease by the Mining Registrar, and thereafter such compensation should be paid annually in advance.
CATCHWORDS:	Mining – Mining Lease – Determination of Compensation - Mineral Resources Act 1989 s.281 – Absence of Evidence Re Wallace & Ors & Evans [2006] QLRT 93 applied. Dembowski & Anor & Struber & Anor, Re [2006] QLRT 44 (26 May 2006)