Thomsen v Struber - [2015] QLC 47

LAND COURT OF QUEENSLAND

CITATION: Thomsen v Struber & Anor [2015] QLC 47

PARTIES: Luke Roy James Thomsen
(applicant)

v

Stephen Struber and Dianne Wilson-Struber
(respondents)

FILE NOS:

MRA 495-14

PROCEEDINGS: Determination of compensation payable for grant of mining leases.

DELIVERED ON: 14 December 2015

DELIVERED AT: Brisbane

HEARD ON: Submissions closed 30 November 2015

HEARD AT: Heard on the papers

JUDICIAL REGISTRAR:
GJ Smith

ORDERS:
1. In the case of ML 20735 compensation is determined in the total sum of $80.00 per annum.

2. The miner pay compensation to the Public Trustee of Queensland on behalf of the landowners in the amount set out in order 1 within two months from notification of the issue of the mining lease by the Department of Natural Resources and Mines and thereafter on the anniversary of the renewal of the mining lease.

CATCHWORDS:
MINING LEASE – grant – access - determination of compensation - use of Court judgments for determination purposes.

Mineral Resources Act 1989, ss 279, 281
Public Trustee Act 1978 Part 7

Eacham Abrasive Blasting Pty Ltd v Gundersen & Anor [2014] QLC 38
Fitzgerald & Anor v Struber & Anor [2009] QLC 0076
Fitzgerald & Anor v Struber & Ors [2014] QLC 0029
Kelly v Struber & Ors [2012] QLC 0074
Saxby v Struber & Ors [2012] QLC 0049
Unimin Australia Limited v Freeman [2007]QLC 76

Wills v Minerva Coal Pty Ltd [No.2] (1988) 19 QCLR 297

APPEARANCES: Not applicable

These proceedings concern a referral to the Land Court by the Chief Executive, Department of Natural Resources and Mines pursuant to s 279(5) of the Mineral Resources Act 1989 (MRA) for the determination of compensation in respect of the grant of mining lease 20735.

Background

The applicant, Luke Roy James Thomsen, (the miner) seeks the grant of mining lease ML 20735. Access to this lease traverses 13.2 km over land described as Lot 14 on SP250040. This property, known as Palmerville Holding is owned by the respondents Stephen Struber and Dianne Wilson Struber (the landowners).
Lot 14 is located in the Cook Shire Local Government area and is used for grazing by the landowners.
The specific Land Court references and individual lease and tenure details are set out as follows:

Court Reference Tenure ID Area Term Lease Purpose

MRA 495-14 20735 .9903 ha 10 years Goldmining

On 22 July 2014 a Certificate of Public Notice and a Certificate of Application were issued by the Mining Registrar at Mareeba in respect of proposed ML 20735.

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 the Land Court. In this matter, no agreement has been lodged with the Department of Natural Resources and Mines (DNRM) and the matter has been referred to the Land Court for determination.
Section 281 of the MRA identifies the matters which…

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.

Continue reading Thomsen v Struber

Details

AGLC: Thomsen v Struber [2015] QLC 47
Case: [2015] QLC 47
Decision Date: 14 December 2015

CaseChat Overview and Summary

Thomsen v Struber is a case concerning the grant of a mining lease and the subsequent determination of compensation for the landowners. The matter was heard in the Queensland Land Court, where the dispute centred on the appropriate compensation to be paid for the mining lease. The landowners argued that the compensation determined by the court was insufficient, while the miner contested this claim.

The primary legal issue before the court was whether the compensation determined for the mining lease was fair and reasonable. The court was required to consider the use of previous court judgments to determine the compensation for the mining lease, as well as the factors that should be taken into account when assessing the compensation. The court also had to consider whether the compensation was reasonable in light of the nature of the mining lease and the use of the land by the miner.

In reaching its decision, the court considered the evidence presented by both parties, as well as the relevant legal principles and previous judgments. The court found that the compensation determined for the mining lease was reasonable and fair, taking into account the factors relevant to the case. The court also considered the use of previous judgments in determining the compensation and found that it was appropriate to do so in this case. The court determined that the compensation for the mining lease should be set at $80.00 per annum, payable to the Public Trustee of Queensland on behalf of the landowners.

Orders

Orders of the court

1. In the case of ML 20735 compensation is determined in the total sum of $80.00 per annum.

2. The miner pay compensation to the Public Trustee of Queensland on behalf of the landowners in the amount set out in order 1 within two months from notification of the issue of the mining lease by the Department of Natural Resources and Mines and thereafter on the anniversary of the renewal of the mining lease.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Court Reference	Tenure ID	Area	Term	Lease Purpose
MRA 495-14	20735	.9903 ha	10 years	Goldmining