Griffin v Bill Scott Rural Pty Ltd as Trustee - [2011] QLC 41

LAND COURT OF QUEENSLAND

CITATION:M J Griffin & Others v Bill Scott Rural Pty Ltd as Trustee & Others [2011] QLC 0041
PARTIES:MJ Griffin and RK Khatri as trustees of the bankrupt estate of Brian Neil Hennessy (33%), Richard Eric Slip (17%), Barry Jones Brown (33%) and Jasmin White (17%)
(Applicants)
v.
Bill Scott Rural Pty Ltd as trustee and Julie Erin and William Scott
(Respondents)

FILE NO:MRA115-10
PROCEEDING:  Determination of Compensation
HEARD ON:  23 June 2011
DELIVERED ON:         6 July 2011
DELIVERED AT:                   Brisbane
HEARD AT:Brisbane
MEMBER:His Honour WA Isdale

ORDER/S:1. I determine compensation under s.281 of the Mineral Resources Act 1989, in the sum of $ Nil.
2. There is no order as to costs.

CATCHWORDS: Mining Lease – Renewal – Determination of Compensation.
Mineral Resources Act 1989 ss 279A, 281
Mitchell v Oakhill and Mitchell¸ Land Court, 10 March 1998 (unreported)
Shaw v Heritage Holdings Pty Ltd (1992-93) 14 QLCR 139, 146
Smith v Cameron (1986) 11 QLCR 64, 74-75.

APPEARANCES: None. The matter was heard on the papers on 23 June 2011 when there was no appearance by the parties.

On 11 May 2010 the Mining Registrar at Winton referred to the Land Court the matter of determination of compensation for the renewal of a mining lease. This action was taken pursuant to section 279A of the Mineral Resources Act 1989.
The whole of the surface area of the lease, some 1.8421 ha, is sought for mining area, stock piles and soil stock piles. The lease term sought is for 2 years from the lease expiry date of 31 December 2008. The land is stated in the renewal application as previously used for low intensity grazing. It is described as Lot 7 on Plan CU 836080.

The Law

In compliance with section 279A of the Mineral Resources Act 1989 (the Act) a hearing date was fixed and notices given to the parties as specified in the section. Section 279A(5) provides that the Land Court may hear and determine the matter as if the referral were an application made under section 281 of the Act.
The matter was then duly heard and is now determined.
The matters to be considered by the Court are set out in s.281(3) of Act. The Act does not define any particular method of assessment. In Smith v Cameron (1986) 11 QLCR 64, the Land Court considered similar provisions in the then Mining Act 1968. Member Mr White said at p.74 -75:
“The section in my opinion merely identifies matters which shall be taken into consideration in making the assessment. It does not prescribe a method of valuation. No doubt each case will depend on its own facts and circumstances but it seems to me that either method is open to the valuer.”
In Shaw v Heritage Holdings Pty Ltd (1992-93) 14 QLCR 139, Member White said at p. 146:
“the method of assessment remains a matter which will be governed by the facts and circumstances of each case in which event emphasis may shift from one method to another.”
In Mitchell v Oakhill and Mitchell (10 March 1998) unreported, the then President of the Land Court, referring to s.281(3) of the Act, said, at page 7:
“the latter section does not prescribe a method of valuation. In my view, as long as the amount of compensation finally determined sufficiently accounts for each of the matters referred to in the sub-section, it is not necessary to quantify an amount in respect of each of the matters referred to.”
Section 281(3) relevantly provides as follows:
“(3)Upon an application made under subsection (1), the Land Court shall settle the amount of compensation an owner of land is entitled to as compensation for—
(a) in the case of compensation referred to in section 279—
(i) deprivation of possession of the surface of land of the owner;
(ii)diminution of the value of the land of the owner or any improvements thereon;
(iii)diminution of the use made or which may be made of the land of the owner or any improvements thereon;
(iv)severance of any part of the land from other parts thereof or from other land of the owner;
(v)any surface rights of access;
(vi)all loss or expense that arises;
as a consequence of the grant or renewal of the mining lease.”
The balance of section 281 makes detailed provision for how the Court is to proceed in assessing the compensation. It provides that:
“(4)In assessing the amount of compensation payable under subsection (3)—
(a)where it is necessary for the owner of land to obtain replacement land of a similar productivity, nature and area or resettle himself or herself or relocate his or her livestock and other chattels on other parts of his or her land or on the replacement land, all reasonable costs incurred or likely to be incurred by the owner in obtaining replacement land, the owner’s resettlement and the relocation of the owner’s livestock or other chattels as at the date of the assessment shall be considered;
(b)no allowance shall be made for any minerals that are or may be on or under the surface of the land concerned;
(c)if the owner of land proves that the status and use currently being made (prior to the application for the grant of the mining lease) of certain land is such that a premium should be applied—an appropriate amount of compensation may be determined;
(d)loss that arises may include loss of profits to the owner calculated by comparison of the usage being made of land prior to the lodgement of the relevant application for the grant of a mining lease and the usage that could be made of that land after the grant;
(e)an additional amount shall be determined to reflect the compulsory nature of action taken under this part which amount, together with any amount determined pursuant to paragraph (c), shall be not less than 10% of the aggregate amount determined under subsection (3).
(5)In any case the Land Court may determine the amounts and the terms, conditions and times when payments aggregating the total compensation payable shall be payable.
(6)An amount of compensation decided by agreement between the parties, or by the Land Court, is binding on the parties and the parties’ personal representatives, successors and assigns.
(7)The Land Court shall give written notice of its determination to all parties and may make such order as to costs between the parties to the determination as it thinks fit.”
The parties, although referred to their obligations under Practice Direction 9 of 2009 have not complied with its terms and filed material in relation to the matter of compensation. As they have not provided formal submissions indicating that a certain level of compensation is contended for the Court must make a decision on the basis of the contents of the Court file, principally material provided by the Mining Registrar who has sent a copy of the Renewal Application, a Public Search report and a map of the area. Also provided to the Court is a letter from Mr Richard Slip to the Mining Registrar at Winton. The letter is dated 8/5/11 and relevantly states that to go to “our mine” “we have to travel approx 22 kls on this road (track) through Budgerygar” station. Mr Slip expresses the view that no compensation is appropriate, or sought by the respondent in respect of this.
The Court file contains a note of a telephone conversation on 16/11/10 with M/s Julie Scott who informed the Deputy Registrar that “she” didn’t want compensation as the miner maintained the road and that was enough. She was asked to put this in writing and she stated that she would send a confirmatory e-mail, which did not come. This is consistent with Mr Slip’s letter which states that “Scotts of Budgerygar” “did not require monetary compensation and we both agreed to leave the road in a useable condition for each other.”
Although there is an indication that no compensation is sought, the parties have, by their inaction in the face of attempts by the Court to motivate them, left the Court with little on which to make a decision. Their inaction would seem consistent with the conclusion which can be drawn from the material on the file, that no compensation is sought. Ample opportunity has been provided to the parties to make any contrary assertion, or to confirm that compensation is not sought so the parties must bear responsibility for their failure to comply with the Practice Direction and to not attend the hearing, notice of which was provided by hearing notices dated 4 April, 2011.
In view of the material before the Court I determine compensation in the sum of $ Nil in respect of all heads of compensation in section 281 of the Mineral Resources Act 1989.
There is no order as to costs.

WA ISDALE
MEMBER OF THE LAND COURT