Saxby v Struber

[2012] QLC 49

LAND COURT OF QUEENSLAND

CITATION:Edward John Saxby v Stephen Struber and Dianne Wilson-Struber [2012] QLC 0049

PARTIES:Edward John Saxby

(applicant)

v.

Stephen Struber and Dianne Wilson-Struber

(respondents)

FILE NO:MRA941-11

DIVISION:General Division

PROCEEDING:  Determination of compensation for access to mining lease

DELIVERED ON:                  18 September 2012

DELIVERED AT:                   Brisbane

HEARD ON:  11 September 2012 on the papers

HEARD AT:Brisbane

MEMBER:Mr WA Isdale

ORDER:         In respect of Mining Lease 20677 compensation is determined in the amount of Nil.

CATCHWORDS:                  ACCESS TO MINING LEASE – DETERMINATION OF COMPENSATION

Mineral Resources Act 1989 ss 279, 281

APPEARANCES:                  Written submissions on behalf of the applicant

No appearance for the respondents

Background

1. On 1 December 2011 the mining registrar at Mareeba referred to the Land Court the matter of compensation to the respondent landholders for the applicant’s access across land held by them to Mining Lease (ML) 20677. The mining registrar provided the Court with a copy of the mining lease application and related documents.

2. In accordance with this Court’s Practice Direction 1 of 2011 the parties were advised by letter dated 3 January 2012 of the timetable for receipt of any material that they wished the Court to consider. The Court’s letter to the respondents was sent to their address shown on the referral from the mining registrar, “PMB 14, Cairns Qld 4870”. On 23 March 2012 this was returned by Australia Post with the notation “mail undelivered due to no landing strip”.

3. The applicant, by his agents, provided material to the Court as envisaged by the Practice Direction.

4. In view of the Court’s letter to the respondents having not been delivered, the Court made orders on 3 July 2012 in pursuance of the Practice Direction. This, inter alia, required the applicant to again serve their material on the respondents and for the respondents to file their material in Court and serve it on the applicant by 4.00pm on 29 August 2012. The order required that the material include a compensation statement, supporting affidavits or statutory declarations and a hearing statement.

5. Material filed on 1 August 2012 on behalf of the applicant states that correspondence sent to the respondents by registered post on 18 January 2012 in this matter was returned by Australia Post on 30 May 2012 as undelivered due to no landing strip. The agent for the applicant advised the Court that the applicant wishes the matter to be heard on the papers.

6. In a further effort to ensure that the respondents had the maximum opportunity to make submissions, the Court contacted Mrs Anne English of Bottoms English lawyers, understood by the Court to be the solicitors for the present respondents in other matters in this Court and sought their assistance on behalf of the respondents. On 2 July 2012 that firm advised the Court by email that they did not act in this matter and would not appear when the matter came before the Court on 3 July 2012, when the orders to which I have already referred were made. The solicitors advised that “Our client can be contacted on [phone]” (emphasis added). The Court registry called this number on 2 July 2012 but it was not answered. A message was left on the automated system for the respondents to call the Court but no call was received in reply to this request.

7. On 2 July 2012 Ms Fiona Suttie, secretary to Mrs English, telephoned the Court and advised that they had contacted their clients who said they would take care of the matter. However, when the matter came before the Court on 3 July 2012 there was no appearance for the respondents.

8. The Court has waited for a response from the respondents until 11 September 2012 in the knowledge that they are aware of the matter, which is demonstrated by the message from their solicitors. As no response has been forthcoming, the public interest in dealing with the matter and the expectation of the applicant that the Court will carry out its task under the Mineral Resources Act 1989, weigh in favour of dealing with the matter now on the material to hand.

9. The applicant proposes that compensation in this case be Nil. The mining registrar in the referral to the Court advises that the length of access is approximately 12 km. This is the same access as for ML20613, ML20666 and ML20668.

10. On 30 August 2011 the Land Court at Cairns ordered that:

    “1.    In respect of file MRA068-11 (ML 20666) compensation is determined in the sum of $20/kilometre over 12 kilometre distance of the proposed access calculating to a figure of $240/annum in respect of that lease, such sum is to be paid in advance with the first payment to be made within 2 months of the grant of the mining lease and thereafter paid annually in advance on the date of the anniversary of the grant of the mining lease.

    2.    In respect of files No. MRA069-11 (ML 20668) and MRA203-11 (ML 20613) for the reasons set out above namely that the compensation in respect of those two leases is subsumed into the grant in respect of MRA068-11, compensation is determined in the figure of $0/annum.”[1]

    [1]     MRA068-11, MRA069-11, MRA203-11 Edward John Saxby v Stephen Struber and Dianne Wilson-Struber.

1. In view of the above and in the absence of any suggestion to the contrary, it appears that in the present case the compensation ought to be determined in the amount of Nil, the situation being the same as that existing concerning the leases dealt with in Order 2 on 30 August 2011.

Order

In respect of Mining Lease 20677 compensation is determined in the amount of Nil.

WA ISDALE

MEMBER OF THE LAND COURT