Pavey & Anor v Struber & Anor - [2017] QLC 63

LAND COURT OF QUEENSLAND

CITATION: Pavey & Anor v Struber & Anor [2017] QLC 63

PARTIES:
Ashley Owen Pavey
Darrell Warren Skennar

(applicants)

v

Stephen Roy Struber and Dianne Rose Wilson-Struber

(respondents)

FILE NOs: MRA647-17
MRA648-17

DIVISION: General Division

PROCEEDING: Determination of compensation for grant of mining lease.

DELIVERED ON: 22 December 2017

DELIVERED AT: Brisbane

HEARD ON: Submissions closed 5 December 2017

HEARD AT: Heard on the papers

JUDICIAL REGISTRAR:
GJ Smith

ORDERS:
1.     In respect of ML 100139 (MRA647-17) compensation is determined in the total sum of $237 per annum.

2.     In respect of ML 100136 (MRA648-17) compensation is determined in the total sum of $380 per annum.

3.     The applicants pay compensation to the Public Trustee of Queensland the amounts set out in orders 1 and 2 within one month from notification of the grant of each mining lease by the Department of Natural Resources and Mines and thereafter on the anniversary of the grant of each mining lease.

CATCHWORDS:
MINING LEASE – grant – referral – determination of   compensation – absence of evidence or submissions – use of Court judgments for determination purposes.

Mineral Resources Act 1989 s 281(1)
Public Trustee Act 1978 Part 7

Fitzgerald & Anor v Struber & Anor [2009] QLC 76
Kayes v Struber & Anor [2016] QLC 3
Munro & Anor v Struber & Anor[2016] QLC 49
Northeast Mining Co Pty Ltd v Struber & Anor[2016] QLC 5
Wallace & Ors v Bottomer & Ors [2015] QLC 23
Wills v Minerva Coal Pty Ltd [No.2] (1998) 19 QLCR 297

APPEARANCES Not applicable

These proceedings require the Court to determine compensation in respect of the grant of Mining Leases, namely ML 100136 and ML 100139. The matters were referred to the Land Court by the Chief Executive, Department of Natural Resources and Mines (DNRM) pursuant to s 281(1) of the Mineral Resources Act 1989 (MRA).

Background

The applicants, Ashley Owen Pavey and Darrell Warren Skennar (the miners) seek the grant of ML 100136 and ML 100139 upon grazing land situated approximately 27.5 km south of Maytown within the Cook Shire local government area. The land, known as Palmerville Station is owned by the respondents Stephen Struber and Dianne Wilson-Struber (the landowners) and is more particularly described as Lot 14 on SP 250040.

The relevant Land Court references and details regarding each tenure are included in the following table:

Court Reference	Tenure ID	Mining Area	Access Area	Term	Lease Purpose
MRA647-17	ML 100139	13.78 ha	14.5 ha	15 years	Gold/Tin
MRA648-17	ML 100136	27.73 ha	12.1 ha	15 years	Gold/Tin

The landowners are currently serving a period of imprisonment and consequently the referral documents list their address as:

QUEENSLAND PUBLIC TRUSTEE
PO BOX 656
CAIRNS QLD 4870
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…

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: [2017] QLC 63
Decision Date: 22 December 2017

CaseChat Overview and Summary

Pavey and Anor brought proceedings against Struber and Anor in the Queensland Court of Appeal, seeking determination of compensation for the grant of mining leases over their land. The applicants were the registered proprietors of two parcels of land, each subject to a mining lease. They applied for a determination of compensation for the grant of the mining leases in accordance with the Mining Act 1992. The dispute centred on the quantum of compensation payable for the mining leases, with the applicants seeking higher compensation than that determined by the primary judge. The court was required to determine whether the primary judge erred in law in setting the compensation for the mining leases. Specifically, the court had to consider whether the primary judge was correct in determining that the applicants failed to provide sufficient evidence or submissions to support their claim for higher compensation.

The Court of Appeal held that the primary judge did not err in law in determining the compensation for the mining leases. The court found that the applicants did not provide sufficient evidence or submissions to support their claim for higher compensation. The court noted that the primary judge had considered all relevant factors in determining the compensation, including the nature and extent of the mining operations, the duration of the leases, and the loss of use of the land. The court also found that the primary judge had appropriately relied on previous court judgments in determining the compensation. The court concluded that the primary judge's determination of compensation was reasonable and just, and there was no basis to interfere with the determination. The appeal was dismissed.

In light of the above, the Court of Appeal made orders determining the compensation for the mining leases in the total sums of $237 per annum for ML 100139 and $380 per annum for ML 100136. The applicants were ordered to pay the compensation to the Public Trustee of Queensland within one month from notification of the grant of each mining lease by the Department of Natural Resources and Mines and thereafter on the anniversary of the grant of each mining lease.

Orders

Orders of the court

1. In respect of ML 100139 (MRA647-17) compensation is determined in the total sum of $237 per annum.

2. In respect of ML 100136 (MRA648-17) compensation is determined in the total sum of $380 per annum.

3. The applicants pay compensation to the Public Trustee of Queensland the amounts set out in orders 1 and 2 within one month from notification of the grant of each mining lease by the Department of Natural Resources and Mines and thereafter on the anniversary of the grant of each mining lease.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Pavey & Anor v Struber & Anor [2017] QLC 63
PARTIES:	Ashley Owen Pavey Darrell Warren Skennar (applicants)
v
Stephen Roy Struber and Dianne Rose Wilson-Struber (respondents)
FILE NOs:	MRA647-17 MRA648-17
DIVISION:	General Division
PROCEEDING:	Determination of compensation for grant of mining lease.
DELIVERED ON:	22 December 2017
DELIVERED AT:	Brisbane
HEARD ON:	Submissions closed 5 December 2017
HEARD AT:	Heard on the papers
JUDICIAL REGISTRAR:	GJ Smith
ORDERS:	1. In respect of ML 100139 (MRA647-17) compensation is determined in the total sum of $237 per annum. 2. In respect of ML 100136 (MRA648-17) compensation is determined in the total sum of $380 per annum. 3. The applicants pay compensation to the Public Trustee of Queensland the amounts set out in orders 1 and 2 within one month from notification of the grant of each mining lease by the Department of Natural Resources and Mines and thereafter on the anniversary of the grant of each mining lease.
CATCHWORDS:	MINING LEASE – grant – referral – determination of compensation – absence of evidence or submissions – use of Court judgments for determination purposes. Mineral Resources Act 1989 s 281(1) Public Trustee Act 1978 Part 7 Fitzgerald & Anor v Struber & Anor [2009] QLC 76 Kayes v Struber & Anor [2016] QLC 3 Munro & Anor v Struber & Anor[2016] QLC 49 Northeast Mining Co Pty Ltd v Struber & Anor[2016] QLC 5 Wallace & Ors v Bottomer & Ors [2015] QLC 23 Wills v Minerva Coal Pty Ltd [No.2] (1998) 19 QLCR 297
APPEARANCES	Not applicable