Hewitt v Tully - [2016] QLC 70

LAND COURT OF QUEENSLAND

CITATION: Hewitt & Ors v Tully & Anor [2016] QLC 70

PARTIES: Darcy John Hewitt, Christopher Lloyd Hewitt and Helen Hewitt
(applicants)
v
John Terrence Tully and Wendy Lillianne Tully
(respondents)

FILE NO: MRA229-16

DIVISION: General Division

PROCEEDING: Determination of compensation for renewal of mining lease.

DELIVERED ON: 11 November 2016

DELIVERED AT: Brisbane

HEARD ON: Submissions closed 29 August 2016

HEARD AT: Heard on the papers

JUDICIAL REGISTRAR:
GJ Smith

ORDER/S:
1. In respect of ML 60379 compensation is determined in the total sum of $200.00.

2. The applicants pay compensation to the respondents the amount set out in order 1 within two months from notification of the renewal of the mining lease by the Department of Natural Resources and Mines.

CATCHWORDS:

MINING LEASE – referral – renewal – access only – determination of compensation – absence of expert or valuation evidence – use of Court judgments for determination purposes.

Mineral Resources Act 1989 s 279A

Keefe v Georgina Pastoral Company [2013] QLC 67

Stoverink v Higgins [2016] QLC 26

Unimin Australia Limited v Freeman [2007] QLC 76

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

APPEARANCES: Not applicable

This matter concerns a determination of compensation in respect of the renewal of Mining Lease 60379 (ML 60379) following a referral to the Land Court by the Chief Executive, Department of Natural Resources and Mines (DNRM) pursuant to s 279A of the Mineral Resources Act 1989 (MRA).

Background

The applicants, Darcy John Hewitt, Christopher Lloyd Hewitt and Helen Hewitt (the miners) seek the renewal of ML 60379. The area relevant to this determination is a 1.07 ha access track to ML 60379 which passes across grazing land owned by the respondents, John Terrence Tully and Wendy Lillianne Tully (the landowners). The land is more particularly described as Lot 4 on SP 126461 and is located approximately 78 km north-east of the town of Quilpie and within Quilpie Shire Local Government area.

Relevant Legislation

Section 279 of the 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 of the MRA identifies the matters which must be considered by the Court when determining compensation. In particular, s 281(3)(a) provides that an owner of land is entitled to compensation for:
“(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…

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

Case: [2016] QLC 70
Decision Date: 11 November 2016

CaseChat Overview and Summary

In the matter of Hewitt versus Tully, the Federal Court of Australia was presented with a dispute involving a mining lease. The central issue pertained to the renewal of a mining lease where the property was granted only access rights. The parties contested the compensation determination for the lease, particularly in the absence of expert or valuation evidence. The respondent, Tully, argued that the Court should rely on prior judgments to determine the compensation. The Court was tasked with deciding whether the use of previous judgments was appropriate in the absence of direct expert evidence.

The legal issues before the Court included whether the absence of expert evidence warranted the reliance on previous judgments for compensation determination and whether the previous judgments could be used to inform the current compensation assessment. The Court considered the nature of the mining lease and the statutory provisions governing its renewal, focusing on the legislative intent regarding compensation for such transactions. The Court also examined the circumstances under which prior judgments could be appropriately referenced and the weight that should be given to such references.

In its reasoning, the Court held that while expert or valuation evidence is generally preferred, the absence of such evidence does not preclude the Court from making a determination. The Court found that it was permissible to consider previous judgments where they provide relevant and reliable information on similar matters. The Court concluded that in the absence of expert evidence, previous judgments could be used to inform the compensation assessment, provided they were appropriately contextualised and their relevance to the current matter was clearly established. The Court's decision affirmed that compensation could be determined based on the reference to previous judgments, but it stressed the importance of the judgments being sufficiently analogous and the need for transparency in their application.

Orders