Donovan v Struber & Ors (No. 2) [2012] QLC 14

LAND COURT OF QUEENSLAND CITATION: Donovan v Struber & Ors (No. 2) [2012] QLC 14 PARTIES: Gary Awarua Donovan (applicant) v. Stephen Struber and Dianne Wilson-Struber (respondents) and Chief Executive, Department of Environment and Resource Management (Statutory Party) FILE NOs: MRA350-09, EPA351-09, MRA352-09, EPA353-09, MRA354-09, EPA355-09, MRA356-09, MRA357-09, MRA358-09, MRA137-10, MRA164-10, EPA165-10, MRA166-10, EPA167.10, EPA209-10, MRA328-10, EPA329-10, MRA630-10, MRA631-10, MRA632-10, MRA739-10, MRA341-11, MRA342-11, EPA352-11, EPA353-11, MRA399-11, MRA400-11 DIVISION: Land Court of Queensland PROCEEDING: Application relating to Disclosure of Documents and Property Inspection. DELIVERED ON: 29 March 2012 [Ex tempore] DELIVERED AT: Brisbane HEARD AT: Brisbane and Cairns via video-link MEMBER: Mr PA Smith ORDERS: 1. The respondents disclose to the applicants all documents in their power, possession or control relating to cattle production activities from 2007 to date for the expanded paddock areas relating to group 1 and 3 land as described by the respondent on CP910619, limited to; A) cattle production of the land, B) agricultural production on the land, and C) financial statements prepared for taxation returns and the taxation returns for the financial years 2007/08, 2008/09, 2009/10 and 2010/11 (if the returns for 2010/11 are currently in existence). With respect to; 1) Mr Struber 2) Mr Struber and Mrs Wilson-Struber 3) the partnership of Stephen Roy Struber and Dianne Rose Wilson-Struber. 2. The respondents’ expert, Mr Robert Walker, be -- 1 of 5 -- 2 permitted to attend mining lease 5219 on Bellevue Station with Dr Mike Gilbert (and if required by Mr Walker the applicant, Mr Gary Donovan) for the purpose of preparing an expert report in relation to these proceedings “the report”. 3. Take photographic evidence and samples relevant to the operation on mining lease 5219 solely for the purposes of preparing a report. 4. The application of 9 March 2012 be otherwise adjourned to 4.30 p.m. on 2 April 2012. 5. With respect to both applications I order that the issue of costs be reserved. CATCHWORDS: DISCLOSURE ― documents relating to cattle production, agriculture production and financial statements ― disclosure order subject to condition to protect confidentiality SOLICITORS: Mr T Dobinson, Solicitor of Preston Law for the applicant Mrs A English, Solicitor of Bottoms English Lawyers for the respondents [1] I have before me an application made by the applicant on 1 March 2012, seeking orders relating to the discovery of certain documents principally relating to issues of cattle production, agriculture production, and financial statements of the respondents with respect to their rural undertakings on the subject land. [2] Following submissions heard before me today, it is clear that the applicant is prepared to reduce the ambit of the application somewhat, and also that the respondents have some documents in their possession which they are readily able to make available to the applicant, weather conditions permitting. [3] From a mechanical sense, this application, of course, comes before the Court pursuant to the provisions of the Land Court Act 2000. As there are no specific rules of the Land Court relevant to this application, the rules of the UCPR are appropriate. This is not in contention between the parties. [4] I will deal first with the issue of cattle production and agricultural production. I accept the affidavit evidence on behalf of the respondents that records with respect to an area known as "Area 2" and Cannibal Creek are not available due to family arrangements which had, until recently, meant that a person other than Mr or Mrs Struber was conducting their own private operations on that area of land. [5] As regards the balance area, I am satisfied that it is appropriate to order the production of cattle records with respect to what the respondents refer to as "group 1 and 3" lands. In making reference to group 1 and 3 lands, I believe it is appropriate that the records should not be limited, but should be expansive to the extent that group 1 and 3 lands fall within -- 2 of 5 -- 3 mustering areas. By that I mean, that the property is operated in a particular manner in particular areas, and I do not want to see this ruling treated narrowly. It is meant to be treated expansively so that accurate and true information is provided to the applicant. [6] Accordingly, I intend ordering that the respondents provide to the applicant cattle production records and agricultural production records with respect to mustering and agricultural production on the expansive paddocks which contain the areas known as group 1 and 3. [7] I do not consider, in the specifics of this case, given the size of the cattle property, that it is necessary to have cattle production records for the entire property. From my experience in dealing with many compensation matters, the best evidence is the evidence that relates to the cattle production on the expansive area around the mining activities, particularly when huge properties are involved which may be comprised of very different categories of land. I will give this example; if there is a river flats area of land that is a very high producing capacity, and it is that area which is to be mined, it may be that a the property which has an overall carrying capacity of say 1 adult equivalent (AE) per 50 hectares, may actually have a carrying capacity of 1AE to 5ha on that area of good river flats land. Of course, if the mining was to take place on areas well away from river flats land, the position would be reversed. It is always the best evidence of the cattle production on the land directly and indirectly impacted by the mining activities, so that we don’t have any misleading information. [8] I now turn to the question of the financial statements. The application has effectively been amended so that the applicant now seeks financial statements prepared for taxation purposes and for taxation returns for the years 2007/08, 2008/09, 2009/10 and 2010/11. Clearly there is a legal obligation for the financial returns from 2007 to 2010 to have been prepared. However, my limited knowledge of taxation laws tells me that it is not necessarily the case that the 2010/11 returns are even in existence as at this time, as if an accountant is preparing those, they have longer periods than individuals to produce those returns. [9] In the limited manner in which the application is now sought, and given the contents of 10.6 of Mr Eales' report, I am in agreement with the applicant that these financial returns should be made available. However, I accept the concerns of the respondent that their financial dealings should not be made generally known in the community, and I also accept that despite the best endeavours of the applicant, inadvertence can sometimes cause this information, which is meant to be confidential, to become community knowledge. [10] Accordingly, I order that the financial statements and taxation returns as referred to be made available, but limited to the solicitors for the applicant; any legal Counsel engaged by those -- 3 of 5 -- 4 solicitors; and any experts specifically relevant to a field of expertise to which those documents are required. [11] In so ordering I draw to the specific attention of the solicitors for the applicant, the fact that Mrs English has indicated that there is pending litigation between her client and a third party who is represented by the same firm of solicitors as is representing the applicant, and I do no more than remind the solicitors or their high ethical responsibilities to ensure that the material is handled in the utmost confidence for the purposes of this litigation only. [12] I am confident that the solicitors for both sides in these proceedings comprehend their obligations to the Court in this regard, and I simply have stated those obligations, not just for the solicitors, but for the understanding of their clients. [13] The formal orders that I make will therefore be as follows: The respondents disclose to the applicants all documents in their power, possession or control relating to cattle production activities from 2007 to date for the expanded paddock areas relating to group 1 and 3 land as described by the respondent on CP910619, limited to; A) cattle production of the land, B) agricultural production on the land, and C) financial statements prepared for taxation returns and the taxation returns for the financial years 2007/08, 2008/09, 2009/10 and 2010/11 (if the returns for 2010/11 are currently in existence). With respect to; 1) Mr Struber 2) Mr Struber and Mrs Wilson-Struber 3) the partnership of Stephen Roy Struber and Dianne Rose Wilson-Struber. [14] I also have before me an application of 9 March 2012 brought by the respondent seeking the attendance of the respondent's expert and the respondent at certain mining activities undertaken by the applicant. The bulk of this application has been resolved, save for the question of the attendance of Mr Struber on the mining lease, which is identified as ML5219. [15] With respect to the application of 9 March 2012, I propose making the order in terms of the draft provided by the applicant and marked “2A” and “2B”, but adding an additional order that the issue of the attendance of Mr Struber at the expert's inspection be adjourned until 4.30 pm on Monday 2 April 2012 for further mention. [16] The reason for this course of action is that the mining lease, whilst apparently under the control of the applicant, is actually in the ownership of third parties, being Mr Fitzgerald and his mother Mrs Fitzgerald, and that there is conflict in the evidence as to the views of Mr Fitzgerald and Mrs Fitzgerald as to the attendance of Mr Struber on their mining lease. [17] On the basis of the evidence before me and absent any attendance by Mr Fitzgerald and Mrs Fitzgerald, I am not prepared to deal with the issue of Mr Struber's attendance until such -- 4 of 5 -- 5 time as Mr Fitzgerald and Mrs Fitzgerald have an opportunity to be heard by this Court if this matter remains in dispute. [18] The order with respect to the inspection will be as follows: (A) The respondents’ expert, Mr Robert Walker, be permitted to attend ML5219 on Bellevue Station with Dr Mike Gilbert (and if required by Mr Walker the applicant, Mr Gary Donovan) for the purpose of preparing an expert report in relation to these proceedings “the report”. (B) Take photographic evidence and samples relevant to the operation on ML5219 solely for the purposes of preparing a report; and (C) The application of 9 March 2012 be otherwise adjourned to 4.30 p.m. on Monday, 2 April 2012. (D) With respect to both applications I order that the issue of costs be reserved. Orders 1. The respondents disclose to the applicants all documents in their power, possession or control relating to cattle production activities from 2007 to date for the expanded paddock areas relating to group 1 and 3 land as described by the respondent on CP910619, limited to; A) cattle production of the land, B) agricultural production on the land, and C) financial statements prepared for taxation returns and the taxation returns for the financial years 2007/08, 2008/09, 2009/10 and 2010/11 (if the returns for 2010/11 are currently in existence). With respect to; 1) Mr Struber 2) Mr Struber and Mrs Wilson-Struber 3) the partnership of Stephen Roy Struber and Dianne Rose Wilson-Struber. 2. The respondents’ expert, Mr Robert Walker, be permitted to attend mining lease 5219 on Bellevue Station with Dr Mike Gilbert (and if required by Mr Walker the applicant, Mr Gary Donovan) for the purpose of preparing an expert report in relation to these proceedings “the report”. 3. Take photographic evidence and samples relevant to the operation on mining lease 5219 solely for the purposes of preparing a report. 4. The application of 9 March 2012 be otherwise adjourned to 4.30 p.m. on 2 April 2012. 5. With respect to both applications I order that the issue of costs be reserved. P A SMITH MEMBER OF THE LAND COURT -- 5 of 5 --