Wallace v Anson Holdings Pty Ltd
[2011] QLC 11
•18 March 2011
LAND COURT OF QUEENSLAND
CITATION: Wallace v Anson Holdings Pty Ltd [2011] QLC 0011 PARTIES: Ian Earl Wallace
(Applicant)v. Anson Holdings Pty Ltd
(Respondent)FILE NO: MRA361-09 DIVISION: Land Court of Queensland PROCEEDINGS: Application DELIVERED ON: 18 March 2011 DELIVERED AT: Brisbane HEARD AT: Brisbane HEARD ON:
15 June 2010
MEMBER:
His Honour, Mr WL Cochrane, Member
ORDERS:
1. The compensation to be paid by Ian Earl Wallace to Anson Holdings Pty Ltd is determined in the sum of Five Thousand One Hundred and Three Dollars ($5,103). Such sum is to be paid annually in the sum of $243 and such sum, as proposed in the draft compensation agreement provided by the miner, to be paid on the commencement of mining activities and payable on the anniversary of that date thereafter.
2. The recitals and the operative provisions from clauses 1 through to 5 of the draft compensation agreement provided by the miner and appended to the decision become the conditions attached to the compensation determination. These clauses are appended hereto.
3. The respondent, Anson Holdings Pty Ltd, is to pay the applicant’s, Ian Earl Wallace, costs of and incidental to the directions hearing before His Honour Member Smith on 15 March 2010 and before His Honour Member Cochrane on 26 May 2010 on a standard basis.
CATCHWORDS: Mining lease – determination of compensation - costs
Land Court Act 2000 s.34
Mineral Resources Act 1989 ss 268, 279Anson Holdings Pty Ltd v Wallace & Anor [2010] QLAC 0002
Anson Holdings Pty Ltd v Wallace & Anor [2010] QLAC 0004
Oshlack v Richmond River Council (1998) 193 CLR 72
Donovon v Struber & Anor [2009] QLC 0079
Smith v Cameron [1986] 11 QLCR 64
Shaw v Heritage Holdings Pty Ltd [1992-1993] 14 QLCR 139APPEARANCES: Mr AM Kerr, solicitor, appeared on behalf of the applicant
Mr G Houen, agent, appeared on behalf of the respondent
Background
This is a matter which arises out of a referral by the Mining Registrar to the Land Court for determination of compensation payable in respect of an application in respect of the grant of a mining licence MLA20415. The subject property is described as the Font Hill Pastoral Holding in the Tablelands Region Lot 4513 on PH1727 and Lot 1 on DA7 being land located at 1600 Bakers Road, Mount Carbine. There has been delay on both sides by the parties in providing the material on which they proposed to rely for the determination of the compensation question.
It might be noted at the outset that this particular aspiration for the issue of a mining lease has already been the subject of consideration by this Court (Wallace v Anson Holdings Pty Ltd [2009] QLC 0063 and Wallace v Anson Holdings Pty Ltd [2009] QLC 0107). In the earlier proceedings a recommendation by the Court to the Honourable the Minister for Mines and Energy that the objections to the environmental authority application and to the amended draft environmental authority were not sustained and where it was further recommended that a mining lease be granted over the application area for a term of 21 years, resulted in an appeal to the Land Appeal Court (see Anson Holdings Pty Ltd v Wallace & Anor [2010] QLAC 0002 and Anson Holdings Pty Ltd v Wallace & Anor [2010] QLAC 0004).
I will return to the determination of those earlier matters later in this decision because the observations of the Land Appeal Court with respect to the costs powers of this Court are apposite to the present circumstances.
Ultimately, in these present proceedings with respect to compensation an issue arose with respect to issues of access by the miner’s expert to inspect the subject property and of disclosure of records.
Standard type orders were issued by the Land Court in correspondence dated 1 September 2009.
By telephone call made on 18 February 2010 the solicitor for the miner (Preston Lawyers) contacted the Court indicating that he wished to bring an application seeking orders that the landowner provide access to a valuer to gather some expert evidence in response to an issue raised in submissions.
An application was filed on 18 February 2010 seeking the following orders or other relief:
1. The Respondent provide access to that part of Lot 4513 on PH1727 covered by MLA 20415 and adjoining lands claimed to be affected as detailed in the report of Neville Hunt dated January 2010;
2. The Respondent disclose to the Applicant all documents in its power, possession or control relating to cattle production activities from 2000 to date of Lot 4513 on PH1727 including but not limited to the following:
(a)actual cattle numbers on the land;
(b)returns under the National Livestock Identification Scheme;
(c)brandings and sale information for all cattle utilising the land;
(d)all correspondence between Landholder Services and Neville Hunt including briefs, notes, memorandum and draft reports.
An outline of argument with respect to each party’s views on that matter was filed in Court. The landowner stoutly resisted any suggestion that the miner ought be allowed access to the subject property or that certain documents be disclosed.
The solicitors for the miner also filed an affidavit of Andrew McCray Kerr sworn 18 February 2010 and an affidavit of Max Dickinson sworn 8 March 2010 and a further affidavit of one Michael Gilbert sworn 8 March 2010.
Eventually on 15 March 2010 His Honour Member Smith made orders including orders in the following terms:
1. The respondent allow the applicant’s experts (who may be accompanied by the applicant and his solicitor) such access to Lot 4513 on PH1727 (“the Property”) as is reasonably necessary for the purpose of assessing compensation.
2. The respondent identify a person including a contact phone number who has knowledge of cattle production and management activities on the Property or the aggregation of properties known as South Edge for the purposes of providing information to the applicant, applicant’s agent and/or applicant’s solicitors relating to cattle production activities for the Property or the aggregation of properties known as South Edge, and that the person be available to promptly answer inquiries from the applicant, applicant’s agent and/or applicant’s solicitors and on request provide them with access to any relevant records or data which exist, including:
(a)branding records for the period 2000 to 2010 for the Property or the aggregation of properties known as South Edge, and
(b)all cattle sale information for the period 2000 to 2010 for the Property or the aggregation of properties known as South Edge.
Difficulties arose with respect to compliance with those orders made by Member Smith on 15 March 2010 with the consequence that this matter came on before me on 26 May 2010 on which occasion I made a number of orders including the following:
1. Within 7 days of today (26 May 2010), the respondent by its agent is to advise the applicant's solicitors as to a range of dates and times between the 3 June and 17 June 2010 when Mr Pringle (referred to in Exhibit AMK-2 to the affidavit of Mr Kerr) will be available to provide the information – referred to in Order 2 of Member Smith made on 15 March 2010.
2. Within 7 days the respondent by its agent shall provide copies of the various records referred to in Order 2 of Member Smith made on 15 March 2010, together with any written record of cattle stocking numbers between 2005 and the present day.
In the course of the hearing on that occasion, I had enquired from Mr Houen (agent for the landowner) as to the implications of a letter written by him on 16 April 2010 to Mr Kerr, solicitor of Preston Law for the miner.
In the course of that correspondence, Mr Houen had observed:
“Regarding data on the cattle herd, the owners of the holdings mentioned, that is South Edge Daintree Pastoral Company Pty Ltd and Weymouth Pastoral Company Pty Ltd are not parties to these proceedings and do not accept that they are bound by the orders. They are not willing to disclose details of commercial-in-confidence management agreements concerning the cattle carried on the aggregations.
No separate branding or sales records exist for Anson Holdings Pty Ltd.
I trust this situation will not trigger ongoing dispute in the Court over disclosure. I believe your experts, your valuer particularly, will assess the lease area and surrounds on their grazing value and carrying capacity and overall herd data is not needed for that.”In the course of the hearing before me the following emerges from the transcript.
HIS HONOUR: Well Mr Houen it’s pretty unhelpful. You’ve known for at least two months that this matter was on today. You wrote a letter on 16 April. I find it very difficult to believe that a company can be embarking upon a grazing endeavour and not have any records about branding or cattle movements or numbers. Is that what you’re telling me?
MR HOUEN: Umm
HIS HONOUR: They simply don’t have that information?
MR HOUEN: No Your Honour. What we’ve said is that the only records of the cattle herd and/or brandings are the records that are the property of the three companies.
HIS HONOUR: Well if Anson Holdings Pty Ltd has those documents in their possession then as far as I’m concerned they have an obligation to disclose them. There’s no proper claim of privilege. Those are the records in the possession of the respondent and they should be disclosed. I’m not particularly interested in what commercial arrangements Anson Holdings Pty Ltd may have with South East Daintree Pastoral Company or with Weymouth Pastoral Company. If they hold documents as you now tell me they do and they are documents that fit the description that was set out in the order then as far as I’m concerned they are under an obligation to disclose those documents unless there is some proper claim of privilege made in respect of them and no such claim has been made.
MR HOUEN: Well I expect that that’s exactly what the two other companies are saying, that it’s privileged information commercial in confidence which they being not covered by the orders didn’t agree to hand over.
HIS HONOUR: Mr Houen, you’ve been doing this sort of work for many years. You’ve not previously raised, you certainly did not raise properly in front of Mr Smith, any allegations about commercial incompetence.
MR HOUEN: No and Your Honour I wasn’t
HIS HONOUR: That’s correct is it not?
MR HOUEN: Yes I simply wasn’t aware at the time that that was the corporate arrangement that was in place
HIS HONOUR: And you’ve not, I mean it’s not a matter for them to disclose in any event. It’s a matter for your client, what’s it called, Anson Holdings Pty Ltd.
MR HOUEN: Yes.
HIS HONOUR: It’s a matter for your client to make disclosure of comments in its control or possession and it has them you tell us in its possession and I’m of the view that you are required to comply with condition 2. I’m further of the view that its not for you to tell Mr Kerr’s experts how to compile their reports. If Mr Kerr acting as the solicitor for Ian Earl Wallace forms a view that he wants to go about having his experts compile a report in a particular way, that’s a matter for him, it’s not a matter for you or your client. If the reports are inadequate or unsatisfactory when them come before me on the determination then we can have an argument about their admissibility but it is no part of one party to tell another party how to go about compiling their reports.
MR HOUEN: Your Honour, I wasn’t meaning to convey that all. I was simply saying that
HIS HONOUR: Mr Houen, let me stop you there. Didn’t you just tell me before that when you read the reports prepared by Mr Kerr’s clients or Mr Kerr’s experts you’ve decided that they said they don’t need to get anymore information.Then, later in the course of debate between myself and Mr Houen the following appears:
MR HOUEN: I haven’t ever seen the documents though I’m simply advised by my client that that’s the case
HIS HONOUR: Well, that’s a pretty thin basis for alleging commercial in confidence when the records which are sought are records which relate to the numbers of cattle which are sold, the numbers of cattle that are branded and the number of cattle that are moving on and off the property. I have the greatest difficulty seeing how any of that could be commercial in confidence to an extent that another party obtaining that information can use against your client.
MR HOUEN: Well Your Honour
HIS HONOUR: Or to your client’s disadvantage
MR HOUEN: Yes, I mean
HIS HONOUR: Mr Houen there’s no suggestion that’s happening here, there’s no allegation of impropriety, there’s no allegation of misuse of information obtained by the disclosure process and I must say that I went back and took the trouble of reading the whole of the transcript of the proceedings before Mr Smith yesterday and today and there’s nothing of that sort in there. Now I think Mr Kerr is entitled to this information. It’s a simple matter to check but you may already know the answer to this. Is there any commonality of directorships between Anson Holdings Pty Ltd, South Edge Daintree Pastoral Company Pty Ltd and Weymouth Pastoral Company Pty Ltd.
MR HOUEN: Yes Your Honour. I don’t know the details but there is.
HIS HONOUR: So one director of South Edge for example could also be director of Anson and he’s saying to himself I don’t want to disclose this information. Is that where we’re up to?
MR HOUEN: Yes but they being completely separate entities of course.
HIS HONOUR: They’ve got a joint venture.
MR HOUEN: I don’t know whether that’s an accurate description of it or not because I haven’t seen the agreements but that sort of nature yes.
HIS HONOUR: Neither has Mr Kerr nor his valuer.
MR HOUEN: No.Mr Houen was unable to identify any basis upon which the documents of which disclosure was resisted might be regarded as commercial and/or in confidence.
I was not persuaded by the approach adopted by Mr Houen and gave further directions for disclosure and provision of access to both records and the property as reflected in paragraph [11] above.
Following the making of the orders on 26 May 2010 the Court received, correspondence on 1 June 2010, notification from Mr Houen on behalf of Anson Holdings Pty Ltd that “on behalf of my client the respondent Anson Holdings Pty Ltd, I hereby give notice that Anson Holdings withdraws from the proceedings. Will you please convey this notice to the court as constituted by Member Mr Cochrane”.
At that time compensation still remained to be determined.
I mentioned the matter again in Court on 15 June 2010 by which time the Court had received a further letter from Mr Houen on behalf of Anson Holdings Pty Ltd. That letter of 8 June 2010 responded to a letter which had been at my direction to Mr Houen as the agent for Anson Holdings Pty Ltd.
In the course of that correspondence I had directed the Deputy Registrar to inform Mr Houen as follows:
“I have discussed this matter with the Member Mr Cochrane who is of the view that the Court is entitled to and expects an appearance by yourself (by telephone) on Tuesday 15 June 2010 so that the basis of the purported withdrawal by your client can be explored. His Honour is concerned to discover from you whether your client withdraws unilaterally and does not propose to rely at all upon any of the material filed by it or whether your client proposes that the material filed by it should be taken into account by the Court without any opportunity for cross-examination of your deponents (particularly your valuer Mr Hunt).
Further, Mr Cochrane notes that on the last occasion the question of costs of the application was specifically reserved and it may be that the applicant wishes to ventilate that matter at the return date of the application on 15 June 2010.
Accordingly would you advise, as a matter of urgency whether you propose to appear by telephone or in person on the 15th of June 2010 or whether no appearance is intended and your client is content that any determinations (including any relating to costs) made by the Court will be performed without the benefit of input from either yourself, your client, or your experts.”
The letter of 8 June 2010 observed as follows:
“I acknowledge your letter of today’s date regarding my client’s withdrawal from the proceedings.
My client Anson Holdings Pty Ltd has exercised its right to withdraw from these compensation proceedings. In doing so my client understands and expects that as a consequence the Court will perform all necessary determinations in the matter without regard to my client’s material submitted so far and without any further input from itself, myself as its agent or its expert valuer.
Accordingly I do not propose to attend the forthcoming directions hearing and would ask that you convey this explanation to his Honour Mr Cochrane.
Yours faithfully
G.T. Houen
Landholder Services Pty Ltd
Agent for the Respondent”
At the review on 15 June Mr Kerr for Wallace was not in a position to indicate whether he proposed to make any application with respect to costs and accordingly I gave him some time to consider his position, take instructions and make any necessary submissions with respect to both of the issues of compensation and of costs.
Further submissions were received from Mr Kerr by letter dated 16 July 2010 observing that “the applicant seeks his costs of the proceeding on an indemnity basis and respectfully requests the opportunity to make submissions in respect of costs at the appropriate time”. A further letter was sent at my direction inviting full submissions with respect to the issue of costs and they were received on 1 September 2010.
It will be remembered that by its correspondence of 26 May 2010 and 8 June 2010 Mr Houen on behalf of Anson Holdings Pty Ltd indicated that the landholder was disinclined to make further appearance before the Court.
Accordingly, the determination of the issue of costs has proceeded without the benefit of any contradictory submissions being made by or on behalf of Anson Holdings Pty Ltd.
An issue arose as to the power of the Court to award costs in proceedings such as these in the Land Appeal Court matters to which I referred to above (see paragraph [2]). In the Land Appeal Court proceedings an issue had been raised by Mr Houen on behalf of Anson Holdings Pty Ltd with respect to the capacity of the Court to award costs on an objections hearing to the issue of a mining lease. The provisions of the Mineral Resources Act 1989 (the MRA) were considered in the context of the specific provisions of the Land Court Act 2000 (the LCA).
The MRA provides:
268Hearing of application for grant of mining lease
(8) The Land Court on the application of an objector or owner may award costs against an applicant for a mining lease who abandons the application or does not pursue the application at a hearing.
(9) The Land Court on the application of an applicant for a mining lease may award costs against an objector who withdraws the objection or does not pursue the objection at a hearing.
The LCA provides:
34Costs
(1) Subject to the provisions of this or another Act to the contrary, the Land Court may order costs for a proceeding in the court as it considers appropriate.
The MRA does not contain any particular provisions relating to the costs (if any) which might be awarded in compensation hearings.
The decision of the Land Appeal Court[1] contains the following observations:
[1] [2010] QLAC 0002.
“[16]… The Land Court Act applies to proceedings commenced in the Land Court and, accordingly, the costs provisions found in s.34 of that Act are applicable unless there is a provision in another Act to the contrary.
[17]Mr Houen submitted at the hearing of this appeal that s.268(8) and (9) of the Mineral Resources Act were the only applicable costs provisions, that is, that the effect of those provisions is that the operation of s.34 is excluded.
[18]We do not accept that s.268(8) and (9) of the Mineral Resources Act cover the field in relation to the Land Court's powers to award costs in respect of the hearing of mining lease applications and objections lodged under the Mineral Resources Act. We agree with the learned Member that s.268(8) and (9) are not inconsistent with the power created by s.34 of the Land Court Act for the Court to order costs for a proceeding in the Court as it considered appropriate. Because the circumstances referred to in s.269(8) and (9) do not apply in this matter, s.34 remains the operative provision in respect of the power to award costs.
…
[21]… Section 34 of the Land Court Act applies to all proceedings in the Land Court, subject to the provisions of any other Act. There is no contrary statutory provision and, accordingly, s.34 applies to the hearing related to the environmental objections.
[22]Previous decisions of this Court in relation to s.34(1) of the Land Court Act indicate that the discretion given to the Land Court under s.34 is complete and that that discretion is not to be fettered by any preconceived rules or principles other than that the discretion is to be exercised judicially. Thus in BHP Queensland Coal Investments Pty Ltd v Cherwell Creek Coal Pty Ltd (No. 2) the Land Appeal Court said -
"[6] In Wyatt v Albert Shire Council, the Full Court considered s.31(1) of the City of Brisbane Town Planning Act 1964 which relevantly provided that the Local Government Court may make such order as it thinks fit as to the costs of any proceeding before it. The similarity between s.31(1) and s.34(1) has been recognized by this Court in the past. The Full Court held in Wyatt that the effect of s.31 was that the discretion conferred with respect to costs is complete or full. The discretion is not to be exercised arbitrarily, but judicially, that is, for reasons that can be considered or justified. Resort may be had to any settled practice of a court but a purported exercise of discretion which fails because the mind is closed to relevant considerations through a rigid adherence to preconceptions is an error of law. Thus an approach that required exceptional circumstances to be established before such a wide discretion is exercised is likely to be incorrect. Similarly it would not be right to start with the preconception that costs follow the event. The Court also said that it would be wrong to attempt to lay down rules governing the exercise of the discretion and each case should be governed by its circumstances." (Footnotes omitted).
[23]Since s.34(1) of the Land Court Act gives the Court a complete and unqualified discretion in respect of an order for costs, an appeal against the exercise of that discretion is to be determined in accordance with the principles set out in House v R[2] -
"… It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance."
Accordingly, this appeal will succeed only if it appears that there was some error by the learned Member in exercising his discretion or that in some other way there has been a failure to properly exercise the discretion.”
[2] (1936) 55 CLR 499 at 504, 505.
Having regard to the decision of the Land Appeal Court referred to above I am of the view that the Court is entitled to have regard to the general discretion contained in s.34 of the LCA in determining any question of costs which arises in these proceedings.
It is clear, as this Court has commented on a number of occasions, that a landowner is entitled to seek the aid of the Land Court in circumstances where either they object to the grant or renewal of a mining lease and/or in circumstances where agreement cannot be reached with a prospective miner as to the appropriate amount of compensation which should be paid consequent upon a recommendation for or the issuing of a mining lease.
It is implied and accepted however that in bringing matters before this Court parties are expected to act reasonably and not embark upon a course of conduct which unreasonably impedes the opportunity for another party to ventilate their case. That position was summed up in the observations of the Land Appeal Court,[3] where the Court commented upon the observations and approach of the learned Member below in the following terms:
“The learned Member decided that because a landholder has a statutory right to object to an application for a mining lease, he or she ought not to be the recipient of a contrary costs order in circumstances where that right had been exercised reasonably and responsibly.”
[3] [2010] QLAC 0002.
In the present case I am of the view that any party bringing matters before this Court claiming compensation which ought be determined upon the basis of a loss of carrying capacity for land consequent upon mining activities (as was the case in the present instance) can reasonably expect that the intending miner will seek, by way of disclosure, documents which evidence assertions as to carrying capacity and revenue flows generated by activities on the land the subject of the mining lease application.
That is precisely what happened in the present instance.
In the outline of submissions with respect to costs received from the applicant on 1 September 2010 the applicant makes, effectively, three submissions.
They are:
1. There resides in the Court in the circumstances of this particular claim a discretion to award costs but such discretion is to be exercised judicially and not arbitrarily or copiously. (See Oshlack v Richmond River Council (1998) 193 CLR 72 at para 22)
2. That in the circumstance of this case where the applicant made a offer to the respondent for compensation on 27 October 2009 that the applicant pay the respondent the annual sum of $500 for the life of the lease in full satisfaction of any compensation liability generating a total amount of compensation offered by the applicant of $10,500 which is in excess of the sum which might be reasonably be obtained having regard to comparable determinations of compensation ordered by the Land Court in the area then a costs order in favour of the miner ought to ensue in the present circumstances where, on the miner’s case the offer was generous.
3. That any costs order ought to be made in favour of the applicant on an indemnity basis.
Because I have to, eventually, determine the outstanding issue of compensation and because the applicant relies upon its offer of $10,500 in total over the life of the lease as justifying an order for costs in its favour it is appropriate that I turn, prior to finalising any order for costs, to a determination of the appropriate compensation.
The offer to which solicitors for the miner referred was contained in correspondence dated 27 October 2009 which was exhibited to the affidavit sworn by Andrew Macrae Kerr on the 31st August 2010 and filed in the proceedings before Member Smith. The offer lapsed.
That correspondence exhibited a mining compensation agreement in which the miner offered to pay $500 per annum in satisfaction of all compensation liability pursuant to the Mineral Resources Act. They drew the landholders attention to a decision of the Judicial Registrar in the matter of Donovon v Struber & Anor [2009] QLC 0079 which identified, having regard to other determinations and agreements for leases and claims in the Mareeba area, that the range of compensation was from about $5 per ha per year to $15 per ha per year.
That decision related to, as the present one necessarily does, to an application for a mining lease within the Mareeba mining district. In that case the combined size of the mining leases was 21 ha which had been recommended for grant for a term of lease of 25 years. (It should be noted that the current lease is subject to a recommendation for grant for a period of 21 years and the mining operations contemplated relate to a total area of 10 ha of disturbance at any one particular time. There is a rehabilitation obligation pursuant to the environmental conditions and accordingly I infer that more than 10 ha would be unavailable for use at any one time. This being assumed on the basis that at any one time after the first area has been disturbed 5 ha would be being utilised and 5 ha would be being rehabilitated. There was certainly no evidence from the respondent, Anson Holdings Pty Ltd, that the area of disturbance was of any particular size.
Any assessment by me of compensation must be carried out pursuant to ss 279 and 281 of the Mineral Resources Act 1989.
Section 279 of the Mineral Resources Act 1989 provides that the 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 being filed, a determination of compensation has been made by the Land Court.
As indicated in the opening paragraphs of this decision this is a case in which no agreement has been lodged and the matter has been referred to the Court for determination.
Section 281(3) and (4) sets out the matters which must be taken into account in assessing compensation. The Act stops short, however, of defining any particular method of assessment. In the case referred to by the miner in its correspondence of 27 October 2009, namely Donovan v Struber [2009] QLC 0079, the Judicial Registrar had determined compensation in circumstances where neither party to the application had appeared before the Court only the prospective miner having provided material on the compensation issue to the Court and where there was no formal valuation evidence.
This section has been considered by the Land Court in Smith v Cameron [1986] 11 QLCR 64 in which case the Land Court observed “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”.
That section was later considered in Shaw v Heritage Holdings Pty Ltd [1992-1993] 14 QLCR 139 in which case Mr White (as he then was) observed that “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”.
In the present case the landowner has for the reasons set out above declined to participate further in the hearing and is content, as evidenced by correspondence from its agent, to have this Court determine compensation without regard to any material filed by them.
In the Struber case the Judicial Registrar had regard to prior determinations and agreements for leases and claims in the Mareeba area and, as indicated above identified a range between $5 per ha and $15 per ha per year.
In the present case however the miner has provided detailed reports, namely a report of Dr M Gilbert dated 15 April 2010 and a report prepared by a registered valuer Mr Max Dickenson dated 16 April 2010. In the circumstances of this case it is not necessary to refer in detail all of the material contained in the reports of Dr Gilbert or Mr Dickenson.
Mr Dickenson’s report however records the following:
“The lease is accessed by travelling west on an unnamed dedicated gravel road/track which turns off the Mulligan Highway south of “Maryfarms”, then across the Mitchell River at “Ords Crossing” and then north west to the proposed access road to the lease.
From information contained in the Application papers we have accepted the lease covers a reported 53.9188 hectares and along with a proposed road access area of around 0.925 hectares (10 metres x 925 metres) equates to a total affected area of say 55 hectares rounded, for practical purposes.
The mine site is part of a large timbered rocky outcrop rising around 120 meters above the surrounding countryside. The eastern side is very steep and stony, while the south and western sides have a gentler rise initially but becomes very steep quickly. The northern end has a gentler rise initially becoming steep but the land is very rough and stony with large granite stone in parts and contains little grass.
Overall the site is poorly grassed and considered unsuitable for cattle grazing except for limited grazing around the base of the outcrop, especially on the south western side and southern end. However we note, from our aerial and ground inspection and overlays on maps, that it appears the mining lease does not take in all of the outcrop and the southern boundary cuts through some of the highest part of the outcrop not taking in the best of the lower grazing around the southern part of the outcrop.”
I am satisfied that that valuation took into account the following matters:
1) Deprivation of possession of the surface of the land;
2) Diminution of the value of the land of the owner or any improvements;
3) Diminution of the use made or which may be made of the land of the owner or any improvements thereon;
4) Severance of any part of the land from other parts thereof or from other land of the owner;
5) Any surface right of access;
6) All loss or expenses that arise;
Considering all of those matters the valuer, Mr Dickenson, contends that the appropriate valuation over the life of the mining operation is a sum of $7,875 under all heads in s.281 of the Mineral Resources Act.
In coming to that view he observed as follows:
“Therefore 8-10% of the mining lease equates to 4.4ha to 5.5ha of effective grazing land at $75 which indicates a value range of $330 (4.4ha x $75) to $420 (5.5ha x $75) for the mining lease and access road. Allowing that only a maximum surface area of 10 hectares or 20% of the mine site can be significantly disturbed at anytime our calculation is generous and therefore can be considered to also compensate the compulsory nature of the grant of the mining lease under section 281(4)(e).
After considering the compensation heads listed under “Valuation Basis” in this report we have assessed a mid range compensation amount of $375 (5ha x $75) per annum due to the landowner for the term of the mining lease or $7,875 ($375x21yrs) total under all heads including s.281(4)(e).”
Mr Kerr of Preston Law made the following observation about the approach of Mr Gilbert:
“Mr Gilbert’s report makes an assessment of the carrying capacity of the land affected by ML 24015. In his assessment the combined carrying capacity for the mining lease area is 1.1Adult Equivalent (AE). In his opinion the expected return for an AE in the district would be in the range of $80.00 to $100.00 per year. Thus using the figure of $100.00 return per AE per annum, the lost carrying capacity or potential loss of production in respect of the mining lease area would be $110.00 per annum. Over the life of the lease that would amount to a figure of $2,310.00 ($110.00 x 21 years).
Mr Kerr acknowledged that the two valuers had approached the valuation exercise in an attempt to determine the appropriate level of compensation utilising different methodologies to arrive at what they regard as an appropriate assessment, albeit each of them adopting a “piecemeal” approach.
I agree with Mr Kerr’s synthesis of the approach which might be taken in an attempt to determine the appropriate amount of compensation.
At paragraphs 16 and 17 of the submissions delivered on 16 July 2010 Mr Kerr observed as follows:
“16.It is submitted that the differing methodologies employed by the report writers are equally valid and that the Court is not in a position to favour one approach over the other. In those circumstances it is submitted that the appropriate approach to be taken to determining the quantum of compensation in this matter is to identify the mean of the ultimate assessments made by the experts. That would leave a sum of $5,092.05 as the appropriate amount of compensation payable over the 21 year life of the lease.
17.Given the acknowledged generous nature of the calculation of the assessment in favour of the respondent made by Mr Dickenson in his report. It is submitted that the sum of $5,092.05 adequately reflects the compulsory nature of the grant of the mining lease in accordance with s 281(4)(e) of the MRA.”
I agree with the approach adopted by Mr Kerr. It is particularly difficult to contradict it when the landowner chooses to withdraw from proceedings. It is not the function of the Court to embark upon a forensic analysis of proper evidence otherwise tendered by the remaining party to an application for determination of compensation.
I accordingly determine that the appropriate compensation which should be paid by the miner is the sum of $5,103 (rounding up the figure of $5,092.05 and generating a figure which results in an even annual payment) generated by calculation of a mean between the view of Mr Dickinson and Mr Gilbert. Such sum should be paid annually in the sum of $243 and such sum, as proposed in the draft compensation agreement provided by the miner, to be paid on the commencement of mining activities and payable on the anniversary of that date thereafter.
I should also record that the terms set out in the draft compensation agreement seem to me to be appropriate terms which ought attach to the determination of compensation so that the recitals and the operative provisions from clauses 1 through to 5 become the conditions attached to the compensation determination. These clauses are appended hereto.
As to the question of costs it is clear that the award is less than the sum which was offered by the miner. That is not, in my opinion, determinative of the issue of costs. The figure arrived at reflects the evidence provided by the miner and it is true that the landowner is not obliged to provide evidence relating to compensation to this Court.
However, I am of the view that the conduct of the landowner in the application before Mr Smith and the subsequent application before me was, in the circumstances, unreasonable and warrants an order for costs on a standard basis against the landowner. Accordingly, I order that the landowner Anson Holdings Pty Ltd is to pay the applicant’s costs of and incidental to the directions hearings before Mr Deputy President Smith on 15 March 2010 and before myself on 26 May 2010 on a standard basis. Otherwise the parties are to bear their own costs of and incidental to this matter.
I should record that I am disinclined to make an order for costs on an indemnity basis on the basis that the landowner is entitled to withdraw from proceedings before this Court and to abandon the entitlement to participate in the determination of compensation. Arguably, the landowner in this case has done nothing more than that, save that the circumstances in which the withdrawal occurred have visited, in my opinion, unnecessary costs on the miner in reaching the position where the landowner decided to withdraw.
HIS HONOUR, WL COCHRANE
MEMBER OF THE LAND COURT
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