Re Fitzgerald and Hughes - [2009] QLC 73

LAND COURT OF QUEENSLAND

CITATION: Re Fitzgerald and Hughes [2009] QLC 0073

PARTIES:In the matter of Application for Mining Lease No.20393 - Application by Dennis Bernard Fitzgerald and Kay Frances Fitzgerald for determination of compensation payable to Brian John and Colin Stanley Hughes
FILE NO/S:MLC00023/2009
PROCEEDING:  Application for determination of compensation
DELIVERED ON:         29 March 2009
DELIVERED AT:                   Brisbane
MEMBER:Mr BR O’Connor, Judicial Registrar

ORDERS:1. I determine compensation under s.281 in the sum of $2,330.00
2. I award an additional amount of $230.00 in accordance with s.281(4)(e).
3. I direct that the miner pay the total compensation in the sum of $2,560.00 to the landowner within three months of notification of grant of the mining lease by the Mining Registrar.
4. No order for costs.

CATCHWORDS: MINING- MINING LEASE – DETERMINATION OF COMPENSATION
Mineral Resources Act 1989, s.279, 281

S.P White v Warner [2003] QLRT 40

Smith v Cameron [1986 – 87] 11 QLCR
Shaw v Heritage Holdings Pty Ltd [1992-93] 14 QLCR

APPEARANCES: Not applicable – Heard on the Papers

Background

The applicant Dennis Bernard Fitzgerald and Kay Frances Fitzgerald (the miners) seek the renewal of grant of Mining Lease 20393 in the Mareeba District. The applicants seek a term of 21 years. The application was lodged at the office of the Mining Registrar, Mareeba on 30 June 2003.
The lease is located on Lot 4567 PH1696, Parish of Groganville County of Chelmsford. Access is through the same property. A grazing operation is conducted on the property. The lease is over a surface area of 21.99ha and is sought for the purpose of mining for gold and other minerals. For the purpose of this application I round off the area to 22ha.

The Act

Section 279 of the Mineral Resources Act 1989 (“the Act”) provides that a mining lease shall not be granted or renewed unless an agreement in relation to compensation has been filed at the office of the Registrar, or in the absence of such an agreement, a determination of compensation has been made by the Court. In this instance, no agreement has been lodged with the Registrar and the matter has been referred to the Court for determination.

The matters which must be considered by the Court are set forth in s.281(3) of the Act. Although s.281 sets out the matters to be considered, it does not define any method of assessment. In Smith v Cameron (1986) 11 QLCR 64, the Land Court held at p.74…”

“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, the Court at p.146 said:

“the method of assessment remains a matter which will be governed by the facts and circumstances of each case in…

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

AGLC: Re Fitzgerald and Hughes [2009] QLC 73
Case: [2009] QLC 73
Decision Date: 29 March 2009

CaseChat Overview and Summary

The case of Re Fitzgerald and Hughes [2009] QLC 0073 involves an application for the determination of compensation payable to Brian John and Colin Stanley Hughes, the landowners, by Dennis Bernard Fitzgerald and Kay Frances Fitzgerald, the applicants seeking to renew a mining lease. The dispute pertains to the compensation that the Fitzgeralds must pay to the Hugheses under section 281 of the Mineral Resources Act 1989 for the renewal of Mining Lease No. 20393. The matter was heard by Mr BR O’Connor, the Judicial Registrar, in the Land Court of Queensland.

The primary legal issue before the court was to determine the appropriate amount of compensation under section 281 of the Act, considering the factors outlined in subsection 3 of that section. The court needed to assess the compensation for the loss of use of the land, the access to the land, and any additional considerations under section 281(4)(e). The court also had to consider the terms of payment and whether any costs should be awarded to either party.

The court's reasoning involved a careful analysis of the relevant statutory provisions and previous case law. The Judicial Registrar noted that section 281 does not prescribe a specific method of assessment, allowing flexibility based on the unique circumstances of each case. The court considered the evidence provided, which was limited due to the absence of formal valuation evidence. The court awarded a nominal sum for access and determined compensation based on the limited evidence and the comparable rates in the region. The court awarded $5 per annum per hectare for the lease area and an additional $20 for access, along with an additional sum under section 281(4)(e) to reflect the compulsory nature of the action. The total compensation awarded was $2,330, with an additional $230 under section 281(4)(e), making the total payable amount $2,560.

The court ordered that the Fitzgeralds pay the total compensation to the Hugheses within three months of the notification of the grant of the mining lease by the Mining Registrar. No order for costs was made, as neither party sought such an order and it was deemed inappropriate in the circumstances.

Orders