Mintram v Endeavour Mining Pty Ltd

[2010] QLC 133

LAND COURT OF QUEENSLAND

CITATION:  Mintram & Anor v Endeavour Mining Pty Ltd [2010] QLC 0133

PARTIES:In the matter of Mining Leases No 30077 and 30078 – Application for damages claimed by Lance William Mintram and Joan Edna Mintram from Endeavour Mining Pty Ltd

FILE NO:MRA570-09

PROCEEDING:  Application for damages

DELIVERED ON:  16 September 2010 (ex tempore)

DELIVERED AT:                   Mareeba

MEMBER:Mr PA Smith

ORDERS:1.    The respondent pay to the applicants forthwith the sum of $9,000 with respect to the loss of breeding cows together with interest in the sum of $3,408 and indemnity costs fixed in the sum of $1,000 making a total of $13,408.

CATCHWORDS:                  MINING LEASE – DETERMINATION OF DAMAGES – Escape of cyanide from mining leases – death of landholder’s breeding stock – duty of mine operator to landholder – long outstanding issue – no appearance by mining company – no compliance by mining company with Court orders – interest on damages – indemnity costs

Mineral Resources Act 1989, s.363

APPEARANCES:                  Mr and Mrs Mintram in person

No appearance by Endeavour Mining Pty Ltd

Background

[1]I have before me an application brought by Mr and Mrs Mintram pursuant to s.363 of the Mineral Resources Act 1989 (the MRA) seeking the recovery of costs incurred arising from the death of fifteen head of breeding cows on their property in 2004. There has been no appearance today by the respondent to these proceedings, Endeavour Mining Pty Ltd.

[2]Endeavour Mining are the holders of two mining leases on the Mintram’s property, being Mining Leases 30077 and 30078. In addition to the respondent not appearing at the proceedings today, the respondent failed to provide the Court with any material in accordance with an order of the Court of 16 July 2010 by which the respondent was to file and serve its written statement of evidence and/or written submissions by 4:00pm on Friday 3 September 2010.

[3]I note that the applicants simply relied upon the material contained within their application together with material referred to in the compensation hearing with respect to the renewal of the two mining leases heard before me in November 2009. It is worth noting that the landholders sought the determination of compensation with respect to the loss of cattle as part of the renewal process, but for reasons of operation of the MRA, I was unable to accommodate that request as part of the renewal compensation process which necessitated the Mintrams bringing this new application to the Court.

[4]It is further a matter of record that the respondent miner has been aware of the loss suffered by the landholders since 2004 and that remedial action has been undertaken on the mining lease areas with respect to rectification of a failed tailings dam but that no compensation has been paid to Mr and Mrs Mintram with respect to their losses of fifteen head of breeding cows. That loss arose directly as a consequence of the failure of the tailings dam which resulted in cyanide travelling to a watercourse of the property which was the source of drinking water for the breeding cows, resulting in their death from cyanide poisoning.

[5]Under the MRA it is clear that the purposes of the MRA are chiefly designed to encourage the mining of Queensland’s mineral resources and there is no doubt that the mining of such resources is of considerable benefit to the economy of Queensland, not just in the sale of those minerals but in the employment opportunities which arise from the mining programs that exist throughout Queensland, ranging from small operations through to very large operations. However, the MRA also makes it clear that there are obligations on miners when conducting their mining operations and when miners fail to comply with those obligations, landholders have the capacity to come before this Court pursuant to s.363 of the MRA and other sections, in order to have such failures of miners rectified.

[6]It is a matter of serious concern to this Court that a miner whose operations have caused the release of a substance such as cyanide into a landholder’s property outside of the areas of the mining leases should have taken no action to recompense the property owners for the losses that they directly suffered as a result of the failure of the mining operations. In my view such activities or lack of action by any miner in general and this miner in particular, simply cannot be tolerated.

[7]It is further exacerbated by the fact that the miner has failed to appear at this Court today; has failed to comply with any orders of the Court with respect to this matter; and has not provided any communication, excuse or other advice to the Court to explain the reasons why orders have not been complied with and why the miner has failed to appear today. This amounts, in my view, to a complete dereliction of the duties and obligations of the miner under the MRA and under the Environmental Protection Act1994 (the EPA). This certainly does not give any pleasure to this Court in having to deal with this matter.

[8]In short, Mr and Mrs Mintram should have had the miner rushing to them to ensure that all of their losses and concerns from the cyanide spill were dealt with in the most timely of manners and I make the general statement that the Court expects nothing less than any miner in this State to operate in that manner whenever a spill of a substance such as cyanide or any other toxic material escapes from a mining area and causes direct losses to a landholder, who after all have had a mining lease, or leases as in this case, placed on their property due to a statutory process over which they have little control.

[9]Mr Mintram was sworn to give evidence today simply to confirm the truth of the statements contained in his material already filed with the Court and to confirm that no payment has been received from the respondent miner regarding the losses suffered by the death of the breeders. During his evidence, Mr Mintram also indicated that the losses were additional to what he actually had claimed due to the fact that the breeders of course did not breed and a resulting loss has occurred as a follow on effect from his property in that regard. Whilst that has not been directly claimed by Mr Mintram, in the circumstances I have no hesitation in awarding the sum of $9,000 sought by Mr and Mrs Mintram for the loss of their breeding cows based on the sale yard price of $600/head as at 2004, which sum I accept, multiplied by fifteen being the number of breeders which died in this incident.

[10]In addition to the sum of $9,000 and given that this loss occurred in 2004 and further given the knock on effect to the breeding activities of the Mintram’s property, I consider it appropriate to award interest at the rate of 5.5% per annum compounding to the applicants for the loss of $9,000. On my calculations and working in whole years which appears in this matter being interest for a period of six years, I calculate the total interest in the sum of $3,408 as at today’s date. Just to make it clear, that is for a six year period  starting from 2004. The total amount of interest of $3,408 and the sum for loss of the cattle of $9,000 combined make a total loss of $12,408.

[11]Mr and Mrs Mintram also seek costs with respect to this application. In my view, this is a matter in which it is appropriate for the Court to award costs on an indemnity basis. The awarding of costs is a matter of discretion for the Court and clearly open to the Court to award under the provisions of the Land Court Act 2000 (the LCA). The award of costs in a matter where parties are not legally represented will normally be of a relatively small amount due to the rules that apply to the award of costs. However, in circumstances such as this I consider the award of indemnity costs are appropriate and indemnity costs apply such that the actual costs incurred by the applicants are recoverable. It is difficult for the Court to arrive at a sum for indemnity costs, however, given the failure of the mining respondent to make any appearance in this Court or respond to any orders I believe it would be futile and simply a matter which would cause Mr and Mrs Mintram further time cost and expense if I were simply to order that costs be paid on an indemnity basis on a basis to be determined as between the miner and the Mintrams and if not determined to be settled under the costs process. The Land Court does have power to make a determination itself of what the award of costs should be.

[12]Mr Mintram has advised me that he and his wife have incurred costs in the sum of $500 in travel expenses in attending at Court today. I note that Mr and Mrs Mintram reside some considerable distance from the hearing in Mareeba. Their property at Einasleigh is approximately five hours from Mareeba by car or 1.5 hours from Mareeba by plane and I understand that Mr and Mrs Mintram utilised their private plane to attend Court today and thus incurred direct costs of $500 for utilising their plane and the relevant fees that apply to using a private plane. Although Mr and Mrs Mintram have said that they are taking the opportunity to do some shopping and other private matters while they are here, it is clear that the main purpose of their attendance today has been for the hearing so I am prepared to allow their full costs of attending Court today. In addition there have been costs incurred by Mr and Mrs Mintram with respect to telephone calls, with respect to letters, with respect to loss of management time on their property in attending at Court today and in attending at previous directions hearings and in the filing and making of their material and application in this matter. It is a normal matter for the Court to award costs to parties for those nature of costs in sums of about $500 and in the circumstances of this matter, given that I am dealing with costs on an indemnity basis, I have no hesitation in fixing the sum of $1,000 in total for Mr and Mrs Mintram as indemnity costs for their forced appearance in Court today to press their claim for losses.

Orders

Accordingly, I make the following orders:

1.    The respondent pay to the applicants forthwith the sum of $9,000 with respect to the loss of breeding cows together with interest in the sum of $3,408 and indemnity costs fixed in the sum of $1,000 making a total of $13,408.

PA SMITH
MEMBER OF THE LAND COURT