Rossi v Hayward

[2008] QLC 97

LAND COURT OF QUEENSLAND

CITATION:  Rossi & Ors v Hayward [2008] QLC0097

PARTIES:In the matter of Mining Claim 50015 – Application by Eugene Rossi, Flavio Moreno Rossi and Renato Tino Rossi for determination of compensation payable to Lenore R Hayward

FILE NO:MCC00044/2008

PROCEEDING:  Application for determination of compensation

DELIVERED ON:                  22 May 2008

DELIVERED AT:                   Brisbane

MEMBER:Mr FW Windridge, Judicial Registrar

ORDER/S:1. I determine total compensation under section 281 in the sum of Sixty Dollars ($60).

2.    I direct that the miner pay the total compensation in the sum of Sixty Dollars ($60.00) to the landowners within 2 months of notification of the renewal of the mining claim by the Mining Registrar.

CATCHWORDS:                  MINING CLAIM – DETERMINATION OF COMPENSATION

Mineral Resources Act 1989, ss 279, 281

Smith v Cameron [1986-87] 11 QLCR 64

Shaw v Heritage Holdings Pty Ltd [1992-93] 14 QLCR 139

Mitchell v Oakhill and Mitchell (10.03.98) unreported

COUNSEL:  Not applicable – Heard on the papers

Background

1. The applicants Eugene Rossi, Flavio Rossi and Renato Rossi (the miners) seek the renewal of Mining Claim 50015 in the Brisbane District.  The application for renewal for a term of 5 years was lodged at the office of the Mining Registrar on 28 June 2006.  The claim is granted for the purpose of mining for silver ore and gold.

1. The claim is located on Lot 286 on LX1246.  It appears access is through the same property.  A grazing operation is conducted on the property.  The claim is over an area of 1.00 ha.  

The Act

1. Section 279 of the Mineral Resources Act 1989 (“the Act”) provides that a mining lease or mining claim  shall not be granted or renewed unless an agreement in relation to compensation has been filed at the office of the Mining 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 Mining Registrar and the matter has been referred to the Court for determination.  

1. The matters which must be considered by the Court are set forth in the Act. Although the act sets out the matters to be considered, it does not define any method of assessment. The following Land Court case reports may offer some guidance in determining the approach to be adopted. 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.”

1. 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 which event emphasis may shift from one method to another.”

1. In considering Mitchell v Oakhill and Mitchell (10 March 1998) unreported, the President of the Land Court, referring to s.281(3) of the Act, found

   “the latter section does not prescribe a method of assessment.  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.” 

The evidence

1. Neither party sought to appear before the Court nor lodge written submissions although given the opportunity to do so.  This matter has been dealt with on the papers.  Some documentation in relation to factual matters was provided by the Mining Registrar.  Where necessary, I have referred to these documents for the purpose of accuracy.

1. There was no formal valuation evidence to consider therefore the Court does not have that assistance in arriving at a determination.  Due to the small area involved, the cost of a valuation would far outweigh any award for compensation.  Due to the small area involved, co-use or co-occupation would not be feasible, and the land owner has notionally lost the use of the claim area of 1 ha for the term of the claim.  

1. The lack of submissions and evidence leaves the Court with little option but to make a nominal order for compensation. It is not the function of the Court to go on a hunt for evidence.  

1. In summary, there was no evidence called to support any claim under any other head of compensation, nor was any matter raised which would necessitate consideration under the relevant sections of the Act.

Access

1. From details provided in the copy of the application for renewal, it appears access is through the same property.  There are no details of this access or the effect it will have on the operations of the landowners.  In the absence of any evidence, I make no award for access.

Quantum

1. In making this determination I take into account that the only other viable use of the land is low intensity grazing.  I consider mining operations on a claim of this size would have no measurable effect on the operations conducted on the property.  There would be some minor effect which would include the noise of vehicles and the movement of people on or about the claim area and along the access road.  There is no evidence of severance of one part of the property from any other part and I make no allowance for injurious affection for the balance of the property.

1. Having regard to all the circumstances, I consider that the following award will satisfy the requirements of the act for the term of the renewed claim for the limited purposes authorised by the grant of the claim. Drawing on the limited evidence that is available, I determine compensation to satisfy all heads of compensation set forth in the Act shall be the sum of $10 per hectare per annum for the term of the renewal. The compensation award is $50. I further award the sum of $5 to reflect the compulsory nature of the action taken under this part, making a total award of $55. I round off compensation to the sum of $60.

Terms of payment

1. In relation to the terms, conditions and times when payments should be made, I take into account the quantum of the order, the size of the claim and the term of the claim. In these circumstances, I order that the miner pay total compensation to the current landowners in the sum of $60 within a period of 2 months from notification of renewal of the mining claim by the Mining Registrar.

FW WINDRIDGE
JUDICIAL REGISTRAR