Wellington v Pedracini

Case •

[2011] QLC 21

•

8 April 2011

LAND COURT OF QUEENSLAND

CITATION: Wellington v Pedracini [2011] QLC 0021
PARTIES: Owen Reginald Wellington
(Applicant)
v.
Reginald J Pedracini
(Respondent)
FILE NO: MRA310-09
MLC62/2009 (now MRA136-09)
DIVISION: Land Court of Queensland
PROCEEDINGS: Mining Lease Compensation Application pursuant to Mineral Resources Act 1989 s.283B
DELIVERED ON: 8 April 2011
DELIVERED AT: Brisbane
HEARD AT: Brisbane
MEMBER: His Honour, Mr WL Cochrane, Member
ORDERS: 1.   Application dismissed.
CATCHWORDS: Mineral Resources Act 1989. s.283B. Review of Judicial Registrar’s decision.
APPEARANCES: Mr Wellington, applicant, appeared in person.
Mr RAW Lyne, (solicitor), for the respondent.

Background

  1. This is an application pursuant to s.283B of the Mineral Resources Act1989.  On the 29th of May 2009 the Judicial Registrar of this Court Mr O’Connor made a determination in respect of an application for Mining Lease No:  3464 made by Kay Frances Fitzgerald and Patrick Charles Fitzgerald the intending miners to Reginald Joseph Pedracini the relevant landowner.

  2. The Judicial Registrar’s determination was that:-

    “1.   Compensation is determined at $120.

    2.The miners pay the total compensation of $120 to the landholder within two months from notification of the renewal of the mining lease by the Mining Registrar.”

  3. It is appropriate to consider the provisions of s.283B. That section provides:

    “283B Review of compensation by Land Court

    (1)   This section applies if—

    (a)compensation has been agreed under section 279 or 280 or determined under section 281 or 282 for a mining lease (the original compensation); and

    (b)there has, since the agreement or determination, been a material change in circumstances for the mining lease. 

    Example of a material change in circumstances—

    a different mining method that changes the impact of mining operations under the lease

    (2)   The mining lease holder or any owner in relation to the mining lease mentioned in section 279(1)(a) or 280(1) may apply to the Land Court for it to review the original compensation.

    (3) Sections 281(3) to (7), 282 and 282A apply, with necessary changes, to the review as if it were an application under section 281(1).

    (4)   The Land Court may, after conducting the review, decide to confirm the original compensation or amend it in a way the Land Court considers appropriate.

    (5)   However, before making the decision, the Land Court must have regard to—

    (a)the original compensation, other than any part of it that consists of an additional amount under section 281(4)(e); and

    (b)whether the applicant has attempted to mediate or negotiate an amendment agreement for the original compensation; and

    (c)any change in the matters mentioned in section 281(3) and (4) since the original compensation was agreed or determined.

    (6)     If the decision is to amend the original compensation, the original compensation, as amended under the decision, is for this Act, other than this section, taken to be the original compensation.”

  4. In the application the solicitor for Mr Pedracini identifies four bases upon which he found the application for a review.  Those bases are:

    “1.the determination is unjust and has not sought submissions from Reginald Joseph Pedracini in respect of the amount of compensation payable by the miner to Reginald Joseph Pedracini or any conditions relating to any future use of such access road or its construction;

    2.the following effects upon the landowner’s loss of use of the subject access road;

    ·           Deprivation of possession of the surface of the landowner’s land;

    ·           Diminution of the value of the land of the landowner;

    ·           Diminution of the use of the land by the landowner;

    ·           Severance of the landowner’s land;

    ·All loss or expense associated with such land for the miner’s access;

    ·           Loss of surface rights of access.

    3.The miner has not paid the determined amount of compensation to the landowner within the prescribed two month period from the date of the notification of the renewal of the lease to the miner.

    4.Generally, the access compensation determination is and does not take into account the landowner’s proper compensation for the access to a mining lease on adjoining land which affects the landowners primary production operations, and further access to ML3464 is available to the miner and over the background tenure to ML3464.”

  5. The leases are now held by Mr Owen Reginald Wellington.

  6. It is convenient to deal first with the third of the grounds relied upon by Mr Pedracini namely the allegation that Mr Wellington failed to pay the $120 compensation sum within two months after receiving notification of the renewal of the mining lease. 

  7. In correspondence forwarded to this Court by Mr Lyne on or about the 26th November 2010 is a letter from the Deputy Mining Registrar of Georgetown Mining District, dated 26 February 2010 addressed to Mr Wellington advising that:

    “The Minister has, in accordance with section 286A of the Mineral Resources Act 1989, recommended to the Governor in Council to grant a renewal of the Mining Lease for a period of 12 years.  The Governor in Council renewed the lease on 18 February 2010.”

  1. There was no dispute but that that letter constituted the notification of the renewal of the mining lease by the mining registrar referred to in the Order by the Judicial Registrar on 29 May 2009.

  2. The date of the correspondence is important. 

  3. Reference to calendars show that the 26th of February 2010, fell on a Friday. 

  4. Mr Lyne, in response to a question from me in these terms

    “  But, Mr Lyne, that's the date on which the letter was written and presumably it could not have been posted before that date and in the ordinary course of the mail it would have taken some time to reach Mr Wellington, would it not?

    Mr Lyne responded:

    “Well, it may take two, three, four business days, your Honour.”

  5. The correspondence provided by Mr Lyne also exhibited a cheque signed and sent by Mr Wellington dated the 25th April 2010 which seemed to be in an envelope post-marked 27 April 2010.

  6. Assuming, as Mr Lyne opined, that the mail took three days to reach its destination that is suggestive that Mr Wellington would not have received the correspondence from the Deputy Mining Registrar of the Georgetown Mining District until the 1st March 2010 at the earliest so that, accepting that that was the date upon which he was notified of the renewal of the mining lease, he had to pay the $120 within two months of the 1st of March namely not later than (applying the provisions of the Act Interpretation Act) the 1st of May 2010.

  7. Mr Lyne’s evidence to the Court was that his company received the correspondence attaching the cheque on the 29th of April so that it was within the time required by the Acts Interpretation Act and the Order of the Judicial Registrar.

  8. For reasons known only to Mr Lyne, notwithstanding that the cheque was received on the 29th April 2010, it was never presented.  That is not a matter within the control of Mr Wellington. 

  9. In my opinion, there is nothing in the allegation that the $120 was not paid within the time required by the Judicial Registrar’s Order.

  10. In coming to this view I do not accept that the date of the letter advising of the granting of the renewal of the Mining Lease constitutes the date of notification.  Mr Wellington could only be notified upon receipt of the letter which did not occur on the 26th February 2010 but, on the balance of probabilities not earlier than the 1st of March 2010. 

  11. In the first ground relied upon by Mr Lyne’s correspondence of 27 April 2010, he asserts interalia, that:

    “the determination is unjust and has not sought submissions from Reginald Joseph Pedracini in respect of the amount of compensation payable …”

  12. It is simply incorrect that submissions were not sought from Mr Pedracini.  I refer to paragraph [3] of the decision of the Judicial Registrar recording that correspondence was sent to Mr Pedracini inviting the making of submissions but no response was received by the Court prior to the Judicial Registrar embarking upon his determination.

  13. In any event the failure by Mr Pedracini to make a submission is not a material change in circumstance for the mining lease and is not a matter which brings the attempt to procure a review of the Judicial Registrar’s decision within the scope of s.283B.

  14. The second ground relied upon in the 27 April 2010 document lists a number of effects which is it said fall upon the landowner’s loss of the use of the subject access road.  Even if those effects correctly articulate the position they do not constitute a material change in circumstances for the mining lease. 

  15. There is nothing in the decision of the learned Judicial Registrar which suggests that he failed to take into account any of the factors identified in the second ground. 

  16. The fourth ground contains allegations about mining activities on adjoining land but do not reflect any material change in the circumstances for the mining lease on the Pedracini land. 

  17. It must be remembered that the Pedracini land is used only for access and the proposed mining operation takes place on adjoining land identified as the “Bethel” land.

  18. The Pedracini land provides only access to the proposed mining operation. 

  19. In all of the circumstances the grounds relied upon by the landowner in bringing an application for a review of the determination of the Judicial Registrar dated 29 May 2009 are without merit and will be dismissed.

  20. If I am wrong in my approach to each of the grounds relied upon in seeking review of the Judicial Registrar’s decision, I record that I have looked in detail at the decision, the judgment referred to in it namely Re Wallace & Ors & Evans [2006] QLRT 93 and the heads of compensation provided for in s.281(3) of the Mineral Resources Act 1989 and can see no basis upon which the decision of the Judicial Registrar can be said to be wrong having regard to the material available to him at the time he made the determination.

  21. The application for review is dismissed.

HIS HONOUR, WL COCHRANE

MEMBER OF THE LAND COURT

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

0

Statutory Material Cited

1