Rossi v Mining Registrar, Brisbane
[2007] QLC 108
•6 November 2007
LAND COURT OF QUEENSLAND
CITATION: Rossi v Mining Registrar, Brisbane [2007] QLC 0108 PARTIES: Eugene Rossi, Flavio Moreno Rossi and Renato Tino Rossi
(appellants)v. Mining Registrar, Brisbane
(respondent)FILE NOS: MRAP159/2007 DIVISION: Land Court of Queensland PROCEEDING: Appeal against Mining Registrar’s decision DELIVERED ON: 6 November 2007 DELIVERED AT: Brisbane HEARD AT: Gympie MEMBER: Mr PA Smith ORDERS: 1. The Mining Registrar’s decision to reject the application for renewal of mining claim no. 50015 is set aside.
2. The issue is returned to the Mining Registrar.
3. The Mining Registrar is directed to determine the appellants’ renewal application according to law and on terms consistent with the findings in this decision.
4. The appellants to file with the Mining Registrar, either in person or by certified mail, an amended plan of operations within 7 days of the delivery of this decision.
5. The Mining Registrar to fully consider the terms of the amended plan of operations in considering whether or not the appellants’ renewal application for mining claim 50015 should be granted.
CATCHWORDS: Mining Registrar’s decision – appeal – rehearing – evidence – show cause – plan of operations – approved from of notice of change of address – substantial compliance
Mineral Resources Act 1989 ss. 93, 116, 129(2), 120, 388(2), 392
Acts Interpretation Act 1954 s 49(1)
Land Court and Other Legislation Amendment Act 2007 No. 39APPEARANCES: Mr Eugene Rossi and Mr Renato Rossi, in person, for the appellants
Mr Mark Hartland, Acting Brisbane Mining Registrar, for the respondent
Background
Eugene Rossi (50% interest), Flavio Moreno Rossi (25% interest) and Renata Tino Rossi (25% interest) (“the appellants”) are the registered holders of Mining Claim 50015, located approximately 21kms east north east of Kilkivan. MC 50015 covers an area of 1ha and was granted for a period of 5 years on 13 June 2001 for the purposes of mining for gold and silver. On 28 June 2006 the appellants lodged an application with the Mining Registrar, Brisbane, to renew MC 50015 for a period of a further 5 years.
The application for renewal by the appellants was lodged pursuant to section 93 of the Mineral Resources Act 1989 (“the MRA”). As part of the renewal process undertaken by the Mining Registrar, s. 93(3)(b) of the MRA provides that the Mining Registrar is to be satisfied that:-
“The holder has observed and performed all the conditions applicable to that mining claim and on the holder’s part to be observed and performed; … ”
After reviewing the matter, the Mining Registrar was not satisfied that the appellants had complied with s. 93(3)(b) of the MRA. As a consequence, the Acting Mining Registrar on 9 February 2007, pursuant to s. 93(5) of the MRA, issued a show cause notice to the appellants in the following terms:-
Form No. M8B
QUEENSLAND
MINERAL RESOURCES ACT 1989
(SECTION 93(5)
NOTICE TO SHOW CAUSE
TO Eugene Rossi
40 Samarai Drive
Kawungan Qld 4655I, Jodie Maree Hendey, Mining Registrar pursuant to the provisions of Section 93(5) of the Mineral Resources Act 1989 call upon you to show cause to my satisfaction within 20 business days of the date hereof why the renewal application for Mining Claim Number 50015 should not be rejected for failure to:
1. comply with a condition of the mining claim that the holder shall work the mining claim during the hours of 6am and 8pm for a minimum of 40 hours per week;
2. comply with a condition of the mining claim that a replacement plan for operations be filed;
3. comply with condition of the mining claim that outstanding royalty returns be filed;
4. comply with a condition of the mining claim that the holder shall maintain the surface of the mining claim in a tidy state during the term of the mining claim; and
5. comply with the provisions of s.388(2) of the MRA by failing to advise of a change of address for the service of correspondence.
You may show cause be providing a written submission to me with respect to this matter and in that case you will be required to ensure the submission is received at my office by the due date referred to in this Notice.
Failure by you to show cause within the time specified may result in the rejection of the renewal application for MC 50015.
Your submissions should be lodged at my office at PO Box 1475, Coorparoo Qld 4151
Dated at Woolloongabba this Ninth day of February 2007.
[signature]
J.M. Hendey
Mining Registrar
The notice to show cause was addressed to Mr Eugene Rossi as he is the principal holder of MC 50015. On 23 February 2007, Mr Eugene Rossi responded to the Mining Registrar’s notice to show cause. After considering Mr Rossi’s response, the Mining Registrar rejected the appellant’s application for renewal of MC 50015. The Mining Registrar’s decision was conveyed to Mr Eugene Rossi by letter dated 20 July 2007 in the following terms:-
20 July 2007
Mr Eugene Rossi
40 Samarai Drive
Kawungan Qld 4655Dear Mr Rossi
Application for Renewal of Mining Claim No. 50015
I refer to the Notice issued on 9 February 2007 calling upon you to Show Cause why Application for Renewal of Mining Claim number 50015 should not be rejected for your failure to comply with section 81 of the Mineral Resources Act 1989. Your response to the notice of 15 February 2007 has been assessed and is considered to be unsatisfactory.
Having taken into consideration all the evidence and material before me, I consider that you have not complied with the provisions of section 81 of the Mineral Resources Act 1989, in that the conditions of the mining claim have not been complied with.
Accordingly, I have on 3 July 2007 rejected Application for Renewal of Mining Claim number 50015, pursuant to section 93 of the Mineral Resources Act 1989, for reason of your failure to:
1.comply with a condition of the mining claim that the holder shall work the mining claim during the hours of 6am and 8pm for a minimum of 40 hours per week;
2. comply with a condition of the mining claim that a replacement plan for operations be filed;
3.comply with condition of the mining claim that the holder shall maintain the surface of the mining claim in a tidy state during the term of the mining claim; and
4.comply with the provisions of s.388(2) of the MRA by failing to advise of a change of address for the service of correspondence.
You are advised that pursuant to section 116(1) of the Mineral Resources Act 1989, you may appeal my decision by lodging a written notice of appeal with the Land and Resources Tribunal (ph: 3406 7777). The appeal must be filed within 20 business days of receiving this notice.
Should you have any further enquiries, please contact me on telephone (07) 3238 3733.
Yours sincerely
[signature]
Nicole Freeman
Mining Registrar for Brisbane Mining District
By undated letter received at the Land and Resources Tribunal on 14 August 2007, Mr Eugene Rossi lodged an appeal against the Mining Registrar’s decision of 20 July 2007. Mr Rossi’s appeal was made in accordance with section 116 of the MRA and is in the following terms:-
Dear Sir/Madam
I write this letter as a written appeal in response to an application for renewal of Mining Claim No. 50015.
Please excuse my literary skills in advance as english is my second language so I ask for patience in dealing with my matter.
As you will see by reviewing the history of paperwork, I applied for a renewal of the mining lease as it came up after 5 years in June 2006.
Even after several enquiries I heard nothing back from the Dept Mines and Energy until Feb 2007. During this period I suspended work at the mine in wait for an answer. This cost me some money and concern.
When I was contacted in Feb I was asked to show cause as to why the claim should be renewed.
I did this within the specified time. After this I assisted in giving directions to Craig Watson for a site inspection.
Approx two weeks ago I received a letter from the Mines Dept informing me that the renewal had been rejected and the reasons why. I include a copy for you.
I write this appeal because I disagree on all four reasons for the decision. Briefly I will explain why and further, I ask for time to prepare all my paperwork and provide more evidence.
Number 1. regarding the work hours. The minimum of 40 hours was always kept during the 5 years.
Some times 2 men worked at one time and for other periods caretakers lived on site. Their names can be provided. Why this is listed as a reason after an inspection is a mystery to me. Perhaps it refers to the period I was waiting for the renewal, when I freely admit no work was done as I was not aware I was permitted.
Number 2. I have completed several reports indicating profits and operations. I was not contacted regarding any missing reports.
Number 3. The claim is not kept tidy. I would like to here make a claim that may not be believed but it does remain the truth. I recently inspected the claim after some time away and found the rubbish that the inspector refers to. I would like to say this it was not mine. I cleaned it up and took it to the transfer station nearby. My opinion is that someone camped at the site and left it or that the previous owner of the land put it here to discredit me at the inspection. Please check your records to see that I have had difficulty with this land owner in the past and that the Tribunal has helped me with this.
Number 4. this is the most ridiculous of them all. I have been at my current address for some years and have notified the dept originally and on several letters of contact since. I can produce these letters if needed.
Please look into my matter and help me to renew the claim. I am a retired man with a strong interest in gold and would like to continue for a further 5 years. I have a good history with the Dept of Mines and the Tribunal and only ask to be dealt with fairly and with respect.
I do have concerns over the way this has been handled, the amount of time that has transpired in processing and the outcome now.looking forward to hearing from you.
Eugene Rossi
[signature]
40 Samarai Drive
Kawungan Qld 4655 Queensland
On 21 September 2007 the jurisdiction to hear appeals under section 116 of the MRA was transferred from the Land and Resources Tribunal to the Land Court.[1]
[1] See Land Court and Other Legislation Amendment Act 2007 No. 39.
The appellant’s appeal was heard in Gympie on 16 October 2007. Mr Eugene Rossi and his son, Mr Renata Rossi appeared for the appellants, and Mr Mark Hartland the acting Brisbane mining registrar appeared as the respondent. Mr Eugene Rossi and Mr Renata Rossi gave evidence on behalf of the appellants and Mr Hartland, the respondent, gave evidence. Additionally, material had been filed by both parties in support of their contentions. In making my decision on this appeal, I have taken account of and considered all the material before me.
Mr Eugene Rossi, the principal appellant, is a 78 year old pensioner. English is not his first language. Due to communication difficulties experienced at the hearing, Mr Renata Rossi gave sworn evidence at the same time that Mr Eugene Rossi gave his sworn evidence. This action was undertaken by myself with the full concurrence of the respondent. Although somewhat unusual, given the language difficulties encountered by both Mr Rossi and the respondent and myself in understanding Mr Rossi, the services of Mr Renata Rossi were invaluable and resulted in the evidence being received, and cross-examination occurring, efficiently.
The case put by the respondent can be summarised quite easily. The respondent says that the appellants have failed to comply with the conditions of their mining claim with respect to four distinct areas. Firstly, condition (u) of MC 50015 states as follows:-
“WORK COMMITMENT: The holder shall work the mining claim during the hours of 6am – 8pm for a minimum of 40 hours per week.”
It is the respondent’s case that the appellants have not worked the mining claim for a minimum of 40 hours per week. Secondly, the respondent says that the appellants have failed to provide the Mining Registrar with a replacement plan of operations as requested by letter dated 8 December 2003. The third point relied upon by the respondent in failing to renew the mining claim is that the appellants have failed to keep the mining claim in a tidy state during the term of the mining claim. The final point relied upon by the respondent is that the appellants have failed to comply with the provisions of s. 388(2) of the MRA by failing to advise of a change of address for service of correspondence. I will deal with each of these grounds separately.
Failure to work the mining claim for a minimum of 40 hours per week
From the evidence before me, the issue of working the mining lease for a minimum of 40 hours per week was first brought to the attention of the appellants on 4 September 2003 by letter from L.C. Rieken, Acting Mining Registrar. The letter covered a number of issues in addition to that of the number of hours being worked on the mining lease. I note that a follow up letter of 8 December 2003 from the Acting Mining Registrar referred in detail to many issues (most of which are not the subject of the show cause notice issued by the Mining Registrar) and, importantly, that no issue was raised regarding the applicants’ working the mining lease for a minimum of 40 hours per week. In this regard, one can only assume that the Acting Mining Registrar was satisfied that, following his letter of 4 September 2003, the appellants were working the mining claim for a minimum of 40 hours per week. I also note the last inspection report remarks contained on the Department of Mines and Energy mining tenure investigation file. The remarks include, for 4 December 2003 “water from shaft being pumped downhill off MC”. The notation for 10 February 2004 states, in part “shaft still flooded pump still in place”. The notation for 28 October 2004 reads in part “no mining activity since prev. visit – shaft still flooded”.
None of the inspectors concerned were called to give evidence at the hearing of the appeal. It is to be noted that, pursuant to section 119(2) of the MRA, the appeal is by way of rehearing. The parties had acknowledged at the commencement of the hearing that they were aware of that provision.
Both Eugene and Renata Rossi gave evidence which conflicts with the evidence of the Mining Registrar. They have stated on oath that they do work the mining claim a minimum of 40 hours per week, although they acknowledge that they have not worked the mining claim since its date of expiry as they did not understand that they could continue to work the mining claim while their renewal application was being processed.
Eugene and Renata Rossi in their evidence state that the location of the pit is such that it constantly fills with water and, whenever they return to the mining claim after any sort of absence, the first task that they have to perform is to empty the shaft of water. Their evidence is that they can understand that an inspector may see the shaft as flooded and assume from inspection to inspection that nothing has occurred in between time, but they categorically state that not to be the case. They gave evidence that the depth of the shaft has progressively become deeper and that minerals analysis undertaken has shown an increased presence of gold as the shaft has deepened. They also stated in their evidence that as the mining claim is essentially a hand mining operation, deepening the shaft in a hard rock situation is a very laborious, time consuming task.
Eugene and Renata Rossi also confirmed that they have had caretakers on site who, apart from one caretaker who had nothing to do with the mining operation, had undertaken mining activities as well as generally security requirements for the site. Their evidence in this regard is consistent with the reports of the Mining Registrar.
On balance, I am satisfied by the evidence of Eugene and Renata Rossi that they have worked the mining claim for hours far in excess of those indicated by the inspectors’ reports. Although Mr Hartland submitted that I should take note of the high experience of the inspectors in reaching their conclusion that the area was not being worked, in the absence of any oral testimony or further detailed evidence from them, their evidence contained in their short reports is not sufficient to displace the evidence given by the Rossis.
Replacement plan of operations
The position regarding provision by the appellants of a replacement plan of operations can be easily summarised. For a number of years, the Mining Registrar has written to the appellants requesting that a replacement plan of operations be lodged to take into account activities being undertaken by the appellants on the mining claim. Mr Eugene Rossi gave what could be classified as “highly passionate” evidence that he had mailed a replacement plan of operations to the Mining Registrar and that, despite this, the Mining Registrar continued to ask him for the plan of operations. Mr Eugene Rossi indicated that he could recall clearly completing the plan of operations and posting it. He also noted that he had dealt with many officers at the Department of Mines and Energy who seemed to change roles regularly and had had difficulties in the past with material going astray.
The Mining Registrar admitted that there had been a number of changes in officers handling this matter, but also stated that the Department had a fairly sophisticated system for monitoring and tracking correspondence. The Mining Registrar also indicated that the Mining Registrar’s Brisbane office had had a change of address during the relevant period.
A most unfortunate nature of Mr Eugene Rossi’s evidence is that he was not able to produce a copy of the replacement plan of operations. It was clear from his evidence and demeanour that he has had quite a poor system for maintaining his correspondence and related material. What is also clear to me is that the question of the replacement plan of operations appears to have been exacerbated to some extent by cultural differences between the Mining Registrar and Mr Eugene Rossi. Mr Eugene Rossi has adamantly stated that he has already given the Mining Registrar a replacement plan of operations and he cannot understand why the Mining Registrar continues to ask for something that he has already provided. For his part, the Mining Registrar has continued to request Mr Rossi provide a replacement plan of operations. One could see that the matter may not have reached the position that it has had either Mr Rossi, as one could reasonably expect him to have done, made a response to the Mining Registrar such as ‘I have already provided you with a replacement plan of operations which you must have lost or it must have gone astray in the mail, so here is another copy of my plan of operations’ or, alternatively the Mining Registrar could have said something of the like of ‘I do not appear to have received the plan of operations that you have indicated was already provided to my office. As it would appear that the plan of operations has gone astray, would you kindly forward another copy of your plan of operations’.
Although the matter is not beyond some doubt, I find Eugene Rossi by his evidence to be a truthful man and accordingly I am inclined to accept that he has, at some time in the last few years, provided the Mining Registrar with a replacement plan of operations by sending same to the Mining Registrar by post. It is equally clear, and I so find, that the replacement plan of operations has either been lost in the post or misplaced in the office of the Mining Registrar. Of course, one cannot discount the possibility that Mr Rossi may himself have misaddressed the letter enclosing the plan of operations.
Maintain the mining claim in a tidy state
There is clear evidence from the Mining Inspectors’ reports that issues relating to the cleanliness of the mining claim have been ongoing for a number of years. It is equally apparent from the file material and from the evidence of Mr Eugene Rossi and Mr Renata Rossi that there has been ongoing issues as between the landholders and the appellants.
One particular aspect relating to the tidiness of the mining claim relied on by the Mining Registrar relates to removal of abandoned motor vehicles from the mining claim area. In this regard, the Mining Registrar appears to be relying upon the advice provided by the landholders. A Department of Mines and Energy office memo of 19 October 2006 contains the following reference:-
“Three vehicle remain on site. The holders have indicated that these vehicles do not belong to them. I spoke to Dennis Messer (son of landowners) on 19 October 2006, who advised that all vehicles belonged to the Rossis.”
However, a Department of Mines and Energy approval briefing note, approved by the Mining Registrar on 3 July 2007 contains the following:-
“Inspections of the claim have indicated that claim is in an untidy state. Several requests to remove a source of rubbish have been ignored. The landholder indicates that he does own the vehicles on the entry track below the claim.”
From the paragraph above, it is clear that the landowners have been providing the Mining Registrar with inconsistent advice regarding the vehicles located on or near the mining claim. For their part, the appellants admit that one of the vehicles belongs to them and that that vehicle is actively used in their mining program; another vehicle has been abandoned on site by persons not the appellants; and that the other vehicle which is located on or near the mining claim has been abandoned there by the landowner.
The appellants also gave evidence that they had inspected the mining claim and noted a large amount of rubbish which they could not identify as their own was within the area of the mining claim. Mr Eugene Rossi and Mr Renata Rossi gave evidence that in their view the rubbish appeared to be household type rubbish, not the type associated with their mining operation, and appeared by its location to have been deliberately dumped on their mining claim. They noted that a rubbish transfer station is located a relatively short distance from their mining claim and that it would be very easy for anyone to remove rubbish from the transfer station and dump it on their mining claim. The Rossis also gave evidence that obstacles have been placed across the access route to the mining claim, an electric fence was installed effecting access to the mining claim, bullet holes have been shot into their truck and that various pieces of machinery and their donga have been broken and/or kicked in. They also indicated that the landholder had previously bulldozed the site which had the effect of, in their view, destroying the site and that a fire had been lit which had surrounded the mining claim area and that, following investigations by the Rural Fire Brigade, the landholders had admitted that they had lit the fire around the mining claim without a permit. In short, whilst admitting that piles of building material and the like located on the mining claim are theirs as well as a piece of machinery, the appellants claim that the bulk of the material which gives rise to the mining claim appearing in an untidy state are as a result of third party actions which, whilst they cannot prove conclusively, they have strong grounds to believe are as a result of the actions of the landholder.
It is worthy of note that the Rossis gave evidence that ownership of the subject land has recently changed and that the underlying land, the subject of the mining claim, is now owned by a person well known to the Rossis who owns a neighbouring property and who the Rossis have a good working relationship with. The Rossis believe that they will have none of the trouble with the new landowner as they have had with the previous landholder.
I accept the evidence of the appellants that much of the untidy state of the mining claim has occurred as a result of deliberate actions by third parties, the identity of whom is unknown.
Failure to advise of change of address
The Mining Registrar contends that the appellants have failed to comply with section 388(2) of the MRA by failing to advise of a change of address for the service of correspondence. Section 388(2) is in the following terms:-
“(2) If the address for service changes during the time it may be required under this Act, the person must immediately notify, in the approved form, the official to whom it was given.”
It is clear from the material and from all of the evidence that the appellants have never provided the Mining Registrar with a notice of change of address for service in the approved from [emphasis added].
It is Mr Eugene Rossi’s evidence that he has lived at his current address, 40 Samarai Drive, Kawungan 4655 for approximately 4½ years, and that he advised the Mining Registrar of his change of address shortly after changing address. It is equally clear from the material that the Mining Registrar is fully aware of the change of address. Indeed, the Mining Registrar’s correspondence to the appellants, complaining that they have not notified the change of address, have been sent for a number of years to the appellants’ new address. I note in particular the correspondence set out at paragraphs [3] and [4] above. In short, what the Mining Registrar is relying upon is the fact that the appellants did not advise of the change of address “in the approved form”.
I certainly appreciate that for a large Government department, processing many different applications from miners, a system which involves filling out approved forms is very useful in keeping records in order. As the Mining Registrar points out, with respect to a change of address, the MRA by s. 388 mandates that the change of address be notified in the approved form. However, that is not the end of the matter. Section 392 of the MRA provides that substantial compliance with the MRA may be accepted as compliance. Further, s. 49(1) of the Acts Interpretation Act 1954 provides as follows:-
“If a form is prescribed or approved under an Act, strict compliance with the form is not necessary and substantial compliance is sufficient.”
As the Mining Registrar is fully aware of the appellants’ change of address and has in fact been using such address for serving its notices complaining that the appellants have failed to advise of their change of address, in my view the provisions of s. 49(1) of the Acts Interpretation Act 1954 clearly apply. The Mining Registrar cannot rely upon the appellants’ failure to lodge the specified form in circumstances where there can be absolutely no doubt that the Mining Registrar has been fully informed of the change of address and has apparently noted all of its data bases accordingly.
Conclusion
In light of my findings above, the issue remains as to what should occur with the appellants’ application for renewal of its mining claim.
Section 120 of the MRA sets out the powers of the Land Court on hearing an appeal. The Land Court may confirm the decision being appealed against; set aside the decision and substitute another decision; or set aside the decision and return the issue to the Mining Registrar with directions the Land Court considers appropriate.
Having taken all of the evidence and submissions made before me into account in this matter, and in light of my factual findings above, in my view the most appropriate course of action to take in this matter is to set aside the Mining Registrar’s decision to reject the application for renewal of mining claim no. 50015 and return the issue to the Mining Registrar with a direction that the Mining Registrar determine the appellants’ renewal application according to law and on terms consistent with the findings that I have made in this decision.
I have adopted such course of action as I am concerned that the amended plan of operations of the appellants may not comply with the provisions of the MRA regarding mining claims in that they may seek the use of unauthorised machinery on the mining claim. As I have no evidence before me as to the contents of the amended plan of operations, it would not be appropriate for me to order that the mining claim be renewed.
I am also concerned that the appellants have displayed, over the years, a certain degree of tardiness in complying with requests from the Mining Registrar.
Accordingly, in addition to my orders set out above regarding the setting aside of the Mining Registrar’s decision and return of the issue to the Mining Registrar, I also order the appellants to file with the Mining Registrar, either in person or by certified mail, an amended plan of operations within 7 days of the delivery of this decision, and further order the Mining Registrar to fully consider the terms of the amended plan of operations in considering whether or not the appellants’ renewal application for mining claim 50015 should be granted.
Orders
1.The Mining Registrar’s decision to reject the application for renewal of mining claim no. 50015 is set aside.
2.The issue is returned to the Mining Registrar.
3.The Mining Registrar is directed to determine the appellants’ renewal application according to law and on terms consistent with the findings in this decision.
4.The appellants to file with the Mining Registrar, either in person or by certified mail, an amended plan of operations within 7 days of the delivery of this decision.
5.The Mining Registrar to fully consider the terms of the amended plan of operations in considering whether or not the appellants’ renewal application for mining claim 50015 should be granted.
P A SMITH
MEMBER OF THE LAND COURT
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