Wieben v Camm - [2012] QLC 40

LAND COURT OF QUEENSLAND

CITATION:Wieben v Camm [2012] QLC 0040
PARTIES:Sydney Wieben
(Applicant)
v.
Peter R Camm

(Respondent)

FILE NOs:MRA109-09, MRA162-009 & MRA163-09, MLC256-07, MLC111-08
DIVISION:Land Court of Queensland
PROCEEDING:  Determination of Compensation
DELIVERED ON:                  28 September 2012
DELIVERED AT:                   Brisbane
HEARD AT:Heard on the Papers.
MEMBER:His Honour, Mr WL Cochrane

ORDERS:I determine that:

1.Compensation for mining lease ML 7526 and mining lease ML 90035 shall be nil.
2.Variation of the access is granted in the terms sought in the applications made.

CATCHWORDS: Mineral Resources Act 1989 s.281 and s.317.

Mining Lease – Compensation – Variation of Access – Absence of any claim for compensation by landowner

Background

These matters were called on by the Court in Brisbane on Friday 2 December, 2011. Notice had been given to the parties and there was no appearance by the party Mr Peter R Camm. Accordingly, a decision was made to deal with the matter on the papers.
All of these matters come within the ambit of the Mineral Resources Act 1989 (hereafter “MRA”).
By correspondence dated 8 December 2011 Mr Camm was notified by the Court over the signature of the Deputy Registrar in the following terms:
“This matter was listed for mention at the sittings of the Land Court on Friday 2 December 2011 with Court ordering that Mr Camm be advised as follows:- That with his non appearance and his failure to send a compensation agreement the Court will proceed to determine the matters in the amounts that have been agreed to between Mr Wieben and Mr Camm.
A copy of the agreement which was supplied by Mr Wieben is enclosed for your Information.”
Subsequent to that correspondence being sent by the Court on 13 December 2011 some correspondence was received from a Mr Windridge, a person with familiarity in the Land Court.
In the circumstances it is appropriate to quote that correspondence in its entirety. The email advised as follows:
“I have been asked by Mr Wieben to assist him to progress these matters. There are a number of leases all due for renewal and compensation matters to finalise. Unfortunately the renewals are for short terms and the compensation issues keep running into the next renewal period. There is no problem with the landowner except that he manages three large properties and travels from one to another by helicopter. He is therefore difficult to contact and get correctly signed agreements for filing.
I was not aware that one of these matters was before the Land Court recently until I saw it in the Law List. I was then not able to contact your office due to busy lines.
In order to assist, could you please appraise me of what is required in respect of each lease that is now before the Court.
Over the coming weeks, I will attempt to formalise any requirements and assist to bring the matters to finalisation. I have actually been up to the leases, and I am familiar with…

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 Wieben v Camm

Details

AGLC: Wieben v Camm [2012] QLC 40
Case: [2012] QLC 40
Decision Date: 28 September 2012

CaseChat Overview and Summary

The case of Wieben & Ors v Great Southern Cattle Holdings Pty Ltd involved applications for varying access for several mining leases, specifically ML 7525, ML 6956, ML 7526, ML 90009, and ML 90035. The landholder, Great Southern Cattle Holdings Pty Ltd, had not given consent for the lease variations, leading to disputes over compensation for the mining activities. The case was before the Queensland Land Court, which was tasked with determining whether the leaseholders were entitled to compensation and, if so, the appropriate amount.

The primary legal issues before the court were whether the leaseholders were entitled to compensation for the variations in access to the mining leases and, if so, what the appropriate amount of compensation should be. The court had to consider the previous decisions of the Judicial Registrars, which had determined compensation for ML 7525 and ML 90009, and whether these decisions were applicable to the current case. The court also had to consider the failure of the landholder to provide any material to assist in the determination of compensation for the other leases.

In reaching its decision, the court considered the previous determinations made by the Judicial Registrars regarding compensation for ML 7525 and ML 90009. The court noted that the Judicial Registrars had considered submissions from the landholder and had determined compensation based on the merits of the case. The court found that it was appropriate to have regard to these previous decisions, given the lack of new material from the landholder. The court also considered the terms of the leases and the nature of the proposed access variations. Ultimately, the court determined that the leaseholders were entitled to compensation and ordered the landholder to pay the amounts previously determined by the Judicial Registrars for ML 7525 and ML 90009.

The final orders of the court were that the landholder, Great Southern Cattle Holdings Pty Ltd, was to pay the leaseholders the amounts of compensation previously determined by the Judicial Registrars for ML 7525 and ML 90009. The court ordered the landholder to pay $100 for the term of the renewal for ML 7525, plus an additional $20 per year until a change of access had been registered. For ML 90009, the court ordered the landholder to pay $535. The court did not make any determination regarding compensation for ML 6956, ML 7526, or ML 90035 due to the lack of any referral to the court for consideration.

Orders

Orders of the court

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Background

Background to the litigation

The Acting Mining Registrar wrote:“BACKGROUND·An application to vary the access for ML 7525 was lodged on 28 August 2008.·An application to vary the access for ML’s 6956, 7526, 90009 and 90035 was lodged on 08 December 2008.·Consent is required from the landholder of Lot 3 CP846344 (Great Southern Cattle Holdings Pty Ltd) for the variation of access to be approved for all leases.·The leaseholder has attempted to contact the landholder to seek consent; with no success.·Requests for determination of compensation for ML’s 7526 and 90035 are currently with the Land Court for consideration.·Compensation was determined by the Land Court on 31 July 2008 and 28 Jan vary ML’s 7525 and 90009 respectively. These determinations took into consideration compensation requirements for the proposed applications to vary the accesses.” The decision with respect to compensation for ML 7525 was made by Mr FW Windridge the Judicial Registrar by decision handed down on 16 July 2008.[4] The determination in that case was:[4] Wieben & Ors v Great Southern Cattle Holdings Pty Ltd [2008] QLC 0141. The determination with respect to ML 90009 was made by Mr BR O’Connor, Judicial Registrar on 19 December 2008.[5][5] Re Wieben [2008] QLC 0229. That determination was as follows: Both of those determinations referred to above were made on the papers. In respect of ML 7525 there was also supplementary submissions received from Mr Wieben by telephone and there was an appearance made by a Mr Minchinton, solicitor of Clayton Utz for the respondent, landowner on 1 July 2008. There has never been any referral in respect of ML 6956 to this Court for compensation and that matter remains outstanding. Pursuant to s.7 of the Land Court Act 200 this Court is not bound by the rules of evidence and may is not bound by the rules of evidence and may inform itself in the way it considers appropriate but, at the same time must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms or the practice of other courts. Because of the way in which this matter has unfolded and because of the failure of the current landholder to place any material before this Court to assist it in its determinations I regard it as appropriate to have regard and reference to the previous decisions of the Judicial Registrars of this Court. In the decision with respect to ML 7525 the then Judicial Registrar of this Court that the appropriate compensation was $100 for the term of the renewal together with a sum of $20 per year until such time as a change of access had been registered. In that case, it is clear from reading the decision that the Judicial Registrar had the benefit of submissions including submissions from the then proprietor Great Southern Cattle Holdings Pty Ltd who had contended for an entitlement to compensation.[6] With respect to the decision relating to ML 90009 the Judicial Registrar Mr BR O’Connor determined compensation in the sum of $535. [6] Wieben & Ors v Great Southern Cattle Holdings Pty Ltd [2008] QLC 0141.

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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