Fairhill Coking Coal Pty Ltd v Comiskey & Anor [2024] QLC 23

LAND COURT OF QUEENSLAND CITATION: Fairhill Coking Coal Pty Ltd v Comiskey & Anor [2024] QLC 23 PARTIES: Fairhill Coking Coal Pty Ltd (applicant) v Peter Locksley Comiskey and Denise Mary Comiskey (respondents) FILE NO: MRA418-24 DIVISION: General Division DELIVERED ON: 21 November 2024 DELIVERED AT: Brisbane HEARD ON: 20 November 2024 HEARD AT: Brisbane MEMBER: ND Loos ORDERS: 1. By 4.00pm on Thursday 5 December 2024, the respondents must file in the Land Court Registry and serve on the applicant a document identifying each fact, matter and circumstance by reason of which it is asserted there has been a material change in circumstances for the mining lease within the meaning of s 283B(1)(b) of the Mineral Resources Act 1989. 2. The matter is listed for review at 2:00pm on 10 December 2024 in Brisbane. 3. Costs are reserved. CATCHWORDS: ENERGY AND RESOURCES – MINERALS – COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – QUEENSLAND – LAND COURT – JURISDICTION AND POWERS – where a compensation agreement exists between the parties – where the applicant contends an articulation of a material change in circumstances is necessary – whether articulation of a -- 1 of 5 -- 2 purported material change in circumstances would benefit the Court in its consideration of jurisdiction APPEARANCES: S Thompson KC and A Nicholas (instructed by McCullough Robertson) for the applicant. J Horton KC and W Isdale (instructed by Suthers Taylor) for the respondents. [1] The parties disagree as to what directions ought to be made to progress the matter. [2] Fairhill asks for orders that the Comiskeys particularise: (a) each fact, matter and circumstance by reason of which it is asserted that the compensation amount originally agreed is to be amended; (b) each fact, matter and circumstance by reason of which it is asserted there has been a material change of circumstances for the mining lease within the meaning of section 283B of the Mineral Resources Act 1989. [3] The Comiskeys ask for orders referring the matter to a mediation (by 31 January 2025) and then for the filing of a compensation statement, response and reply. Background [4] A compensation agreement exists between Fairhill and the Comiskeys. It was made on 27 August 2020. That agreement included an obligation for Fairhill to pay the Comiskeys set amounts of compensation on three milestone dates. The second and third payments were not made on the agreed dates. [5] The dispute resolution process in the compensation agreement commenced. A mediation was organised. Before the mediation occurred, the parties struck a written agreement by email exchange on 3 April 2023. [6] On 20 September 2023, the second and third payments were made. Pursuant to the written agreement of 3 April 2023, the parties continued discussions. On 16 April 2024, the parties participated in a mediation, overseen by an experienced mediator. [7] Fairhill considered that after that mediation, the 3 April 2023 agreement had been fulfilled. The Comiskeys disagreed. They sought declarations in the Supreme Court. -- 2 of 5 -- 3 [8] On 31 July 2024, the Supreme Court dismissed the application for declarations. The Court (Bradley J) gave reasons which helpfully summarised the history of the dispute and the potential future courses of action. [9] The reasons for judgment included the following: Until the parties either reach agreement on an amendment to the compensation in the earlier agreement, or until they cooperate and allow the Land Court to review the compensation payable under the earlier agreement in light of changed circumstances, the existing agreement will, by operation of the Act, continue to be in force. 1 [10] The Supreme Court had, earlier in the reasons, concluded: … For the Land Court to review such a matter under section 283B, there must also have been a material change in circumstances for the mining lease since the compensation agreement was made. The conduct of the parties in agreeing to renegotiate the compensation, as evidenced plainly in the 3 April correspondence, assumes that there has been a material change in circumstances relevant for the compensation amount. It assumes that that change has occurred since the amount was agreed.2 [11] After that judgment was given, Fairhill indicated to the Supreme Court that it had not agreed that the question of “what is meant by material change of circumstances in the mining lease” had been before that Court for determination and that Fairhill had not argued that point as a result3. [12] There remains a disagreement about the meaning and effect of aspects of the Supreme Court’s reasons for judgment. [13] The Comiskeys filed an Originating Application in the Land Court on 25 October 2024. That Originating Application included: 1 Judgment of the Supreme Court in matter No. 7410 of 2024, given on 31 July 2024, at page 1-5, lines 37-40. Made available in the affidavit of Mr Stokes, affirmed on 19 November 2024, exhibit PWS-6, at page 102. 2 Judgment of the Supreme Court in matter No. 7410 of 2024, given on 31 July 2024, at page 1-5, lines 37-42. Made available in the affidavit of Mr Stokes, affirmed on 19 November 2024, exhibit PWS-6, at page 101. 3 Affidavit of Mr Stokes, affirmed on 19 November 2024, exhibit PWS-5, at page 92 (lines 3-6 of the transcript) -- 3 of 5 -- 4 16.6 There has been (and/or the parties agreed there has been) a material change in circumstances for the mining lease, within the meaning of section 283B of the MRA. Resolution [14] Fairhill submitted that there must be an articulation of what is said to be the “material change in circumstances” so that it can assess whether the jurisdiction of the Court is engaged. It described that as a threshold issue. [15] The Comiskeys submitted that Fairhill has a duty to cooperate to enable the Land Court to review compensation pursuant to s 283B of the MRA. The duty to cooperate is said to arise from the reasons for judgment given by the Supreme Court. [16] There is disagreement about what the duty to cooperate involves. [17] It is the first duty of any Court, in approaching a case before it, to consider its jurisdiction.4 Section 283B(1)(b) of the MRA applies if “… there has, since the agreement or determination, been a material change in circumstances for the mining lease.” [18] The Originating Application is opaque about what the material change in circumstances are said to be, to make s 283B apply here. [19] In my view, the parties and the Court would benefit from a clear articulation of each matter comprising what the Comiskeys say is a “material change in circumstances”. To have that articulation will place the parties and the Court in the best possible position to examine the Court’s jurisdiction. If/when jurisdiction is established, having a clear articulation of each matter comprising the “material change in circumstances” will assist in setting the boundaries of this matter going forward. [20] I do not think it necessary at this stage for the Comiskeys to have to identify why they say the compensation amount originally agreed is to be amended. That can be addressed after the parties and the Court better understand the “material change in circumstances”. [21] Nor do I think it appropriate, now, for the matter go to a further mediation, given the recency of the April 2024 mediation. 4 Hazeldell Ltd v Commonwealth (1924) 34 CLR 442, 446. -- 4 of 5 -- 5 [22] In that way, I prefer the second component of Fairhill’s proposed orders, to take the matter forward. Orders 1. By 4.00pm on Thursday 5 December 2024, the respondents must file in the Land Court Registry and serve on the applicant a document identifying each fact, matter and circumstance by reason of which it is asserted there has been a material change in circumstances for the mining lease within the meaning of s 283B(1)(b) of the Mineral Resources Act 1989. 2. The matter is listed for review at 2:00pm on 10 December 2024 in Brisbane. 3. Costs are reserved. -- 5 of 5 --