Bevan v Paczkowski & Anor [2006] QLRT 17

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Bevan v Paczkowski & Anor [2006] QLRT 17 PARTIES: Brenda Voilet Bevan (Applicant) v Jerry Paczkowski & Anor (Respondents) FILE NO: MCA129/05 PROCEEDING: Application for mining claim DELIVERED ON: 14 March 2006 DELIVERED AT: Brisbane HEARING DATE: 21 February 2006 PRESIDING MEMBER: Kingham DP ORDER: 1. The application by Mr and Mrs Paczkowski for damages is dismissed. (at [35]) 2. I instruct the Mining Registrar to grant MC 70952 for the purpose and for the term sought by the applicant, subject to the condition that the holder of MC 70952 must not mine any material located on MC 70952 which was excavated from the dam located on MC 70546. at [35]) CATCHWORDS: MINING CLAIM – PAST PERFORMANCE – DAM – DAMAGES Mineral Resources Act 1989, ss. 78, 112 COUNSEL: N/A SOLICITORS: N/A AGENT/S: N/A Background [1] These proceedings involve a contested application by Ms Bevan (the applicant) for a mining claim (MCA 70952); the hearing of an objection to that application by fellow miners, Mr and Mrs Paczkowski (the objectors); and claims by the objectors against the applicant for damages allegedly caused by outflows from a dam on another mining claim. -- 1 of 7 -- [2] Neither party was represented by a lawyer. The applicant was represented by Mr Kemenade. Mr Paczkowski represented himself and his wife. Evidence for the applicant was given by Mr Kemenade and another miner, Mr Chappelle. Evidence for the objectors was given by Mr Paczkowski and Mr Beattie, a consultant gemmologist. Both parties filed extensive written materials which are exhibits in these proceedings. In order to understand my conclusions, it is necessary to describe the history and location of the relevant mining tenures and dams. Tenures held by the applicant and Mr Kemenade [3] The applicant and Mr Kemenade have a lengthy history of involvement in the Emerald Mining District. They appear to have first mined in the Reward Designated Fossicking Area (Reward) in 1988, firstly as managers of the “Taurus mine” (the leases for which are now held by Mr Paczkowski) and then as the holders of 2 mining claims now numbered 70545 and 70546. The applicant and Mr Kemenade transferred their interest in those tenures to William Cellar on 15 October 2002. Mr Cellar then transferred his interest in them to Mr Kemenade on 4 July 2004. He is now the sole holder of both tenures. [4] There is a dwelling used by the applicant and Mr Kemenade located on MC 70545. There is a dam located on MC 70546. That dam has been used to service mining operations conducted by the applicant, Mr Kemenade and others, including Mr Chappelle. The water inflows to and outflows from this dam are central to the dispute between the parties. [5] It is not clear when the dam was constructed and by what authorisation. Mr Kemenade and Mr Chappelle said they had been told by other miners at Reward that the dam was constructed some 30 years ago under supervision of personnel from the Mines Department. Mr Paczkowski said the Department has no records of this. The Deputy Mining Registrar (exhibit 24) has confirmed that that the dam predated the applicant’s and Mr Kemenade’s interest in MC 70546. Mr Chappelle described the dam as “well established” when he started mining in the area in 1988. [6] Ms Bevan marked out the area now applied for as MCA 70952 on 1 June 2004 and lodged the application for the grant of the area as a mining claim on 3 June 2004. That is the application now before the Tribunal. Tenures held by the Objectors [7] The objectors’ involvement in the area is more recent. Mr Paczkowski has held MCs 4120 and 4122 (the Taurus mine) and Mrs Paczkowski has held MC 3945 (the Taurus house) since 23 September 1999. Mrs Paczkowski has also held MC 70953, which adjoins MC 70952, since 13 May 2005. [8] There are two small dams located on the Taurus mine and another small dam located just to the north east of MC 4120. It appears the dams on the Taurus mine were constructed between June 2001 and June 2003 (exhibit 35). This is after the first incident for which Mr & Mrs Paczkowski claim damages. The small dam to the north east of MC 4120 predated Mr Paczkowski’s interest in the claims. -- 2 of 7 -- The witnesses [9] Evidence was given by Mr Kemenade on behalf of the applicant and Mr Paczkowski on behalf of the objectors. Mr Chappelle also gave evidence on behalf of the applicant and Mr Beattie on behalf of the objectors. [10] Mr Chappelle impressed me as a careful and reliable witness who took particular trouble to answer questions precisely and accurately. He had a lengthy involvement in the area and an intimate knowledge of the dams, gullies, water flows and dam levels. Between 1988 and 1999 he lived in a house approximately 20 metres from the dam and saw it daily. Between 1999 and 2005 he visited the area regularly, approximately every six months, and on each occasion visited the area of these claims and saw the dam. [11] Mr Beattie’s first visit to the area was in 1998 when Mr Paczkowski was investigating the purchase of the Taurus mine. He did not visit the dam on MC 70546 very often. He was not as familiar as Mr Chappelle with the terrain and was not as confident or certain as Mr Chappelle about the connections between the various gullies and dams involved in the dispute. [12] For these reasons, where there is a conflict in the evidence about the state of the gullies and the dams I prefer the evidence of Mr Chappelle over that of Mr Beattie. Whilst Mr Chappelle’s evidence is central to my findings in relation to the damages claims it is supported, as noted, by other evidence tendered by the parties. The damages claims [13] The first damages claim is for damage allegedly caused by water flows sometime in late 1999 or early 2000 which swamped the Taurus mine, causing it to collapse. As a result, Mr & Mrs Paczkowski say they lost the mine infrastructure and consequently dug out two dams on the claims. [14] The second damages claim is for damage allegedly caused between June and November 2005 when water flowed across MC 70953 and into the Taurus mine. As a result, Mr and Mrs Paczkowski say they had to desilt the dams on the Taurus mine and construct a barrier on MC 70953 to prevent further entry of water into that claim. [15] Mr & Mrs Paczkowski allege that, on each occasion, the damage was caused by overflows from the dam on MC 70546. Between the first and second incident, the outflow from the dam on MC 70546 was altered from the south eastern corner of the dam to the northern corner of the dam. The alteration was made when Mr Cellar was the holder of MC 70546, although it appears that Mr Kemenade assisted in organising the work to be undertaken. Mr Paczkowski was present when the work was undertaken. The use of excavation equipment on the mining claim was not authorised under section 112 of the Mineral Resources Act 1989 (the Act). The Mining Registrar subsequently issued a directive requiring certain remedial work to be undertaken. It appears that work is largely complete (exhibit 24). -- 3 of 7 -- Findings in relation to the second damages claim [16] There was no evidence before me to connect the applicant to any damage alleged to have been caused by the second incident. In particular, the applicant was not the holder or occupier of MC 70546 or a person responsible for the work undertaken to change the location of the outflow. Therefore, even if the outflow was the source of the water, there is no basis upon which the applicant can be held responsible for the damage. The claim against the applicant in relation to damage alleged to have been caused in 2005 is, therefore, dismissed. Findings in relation to the first damages claim [17] The applicant did, however, hold an interest in MC 70546 at the time of the first incident. Whilst she did not construct the dam, as occupier she is potentially liable for damage caused by discharges from the dam. However, the objectors have not persuaded me, on the balance of probabilities, that the damage to the Taurus mine was caused by water discharged from the dam’s outflow. For this reason it is not necessary for me to further consider the factual and legal issues involved in the applicant’s potential liability. [18] There was no direct evidence before me as to the source of the water in relation to the first incident. Neither Mr Kemenade nor Mr Paczkowski was present at Reward during the period in which the damage is alleged to have occurred. Mr Beattie confirmed he did not investigate the source of the water and he also was not at Reward during the relevant period. [19] Mr Paczkowski stated the claim was based on a written admission by Mr Kemenade that water from the outflow from the dam on MC 70546 caused the collapse of the Taurus mine. The so-called admission is contained in paragraph 6 of a document headed “A1” in a bundle of documents filed by the applicant (exhibit 36). Mr Kemenade denied this was an admission of liability. Rather, in responding, on behalf of the applicant, to the allegations made by Mr & Mrs Paczkowski in their objections to the application for MC 70952, Mr Kemenade repeated the allegation that water from that dam had caused damage. I accept that, on a fair reading of that paragraph in the context of the material filed by both parties, it is not an admission of liability. [20] Mr Kemenade did not dispute there had been some damage to the Taurus mine at some time. However, he proposed an alternative explanation which I found plausible. The primary inflow channel to the dam was blocked at a point to the west of MC 70546 and diverted to the Taurus mine via a gully that ran north east from that blockage. Mr Kemenade asserted the damage was caused by water so diverted. Critical to my view that this explanation is plausible, is my acceptance of Mr Chappelle as a reliable and credible witness as to the state of the inflows, outflows and dam level during the relevant period. My findings on those issues are set out below. The blockage and diversion [21] There are 2 inflows to the dam on MC 70546. One enters the western boundary of the claim, the other enters the south-western corner of the claim. There was a dispute -- 4 of 7 -- between the parties as to which of these was the primary inflow to the dam. Mr Paczkowski alleged it was the south-western inflow. This is supported by the Deputy Mining Registrar’s memo (exhibit 24). Mr Chappelle and Mr Kemenade conceded that this is currently the primary inflow. However, they asserted, and I accept, that the primary inflow used to be that coming from the western boundary. Mr Chappelle described that inflow as a 1 to 2 kilometre channel that collects water from the side of the hill along the main road into Reward. During good rain, Mr Chappelle said it is up to 2 metres deep. The other inflow is only some 100 to 150 metres long and drains from only one property. [22] There is no substantial dispute that the inflow was blocked on a number of occasions at the point described above. A photograph attached to the Deputy Mining Registrar’s report (exhibit 24) depicts the blockage at that junction in November 2005. [23] Mr Chappelle located the blockage in early 2000 when he visited the area to correct a mistake on a datum post on MC 70546 for Mr Kemenade. The water level in the dam at that time was so low that it was nearly dry. This was so unusual that he investigated the inflow channel and located the diversion. Mr Chappelle stated that between 1988 and 1999 the dam was usually about three-quarters’ full. During a bad season it might get as low as one-quarter full but it never ran dry. From early 2000 there were problems with the dam and it was nearly dry. He confirmed that the applicant and Mr Kemenade could not mine from 2000 to October 2002 when they transferred their interest to Mr Cellar, because there was so little water in the dam. [24] Mr Kemenade alleged Mr Paczkowski blocked the primary inflow in order to divert the water to the Taurus mine. Mr Chappelle gave evidence that Mr Paczkowski told him that he had blocked the channel but did not think anyone would notice. That conversation was in 2003 and it was not clear whether that was a reference to the blockage in 2000, which was removed, or a second blockage established and removed some time in 2003. Whilst Mr Paczkowski asserted he had no need to obtain water in this way, he neither denied having blocked the channel nor having the conversation reported by Mr Chappelle. [25] Ultimately, it is not necessary for me to decide who was responsible for the blockage and diversion. There is certainly no evidence before me that the applicant was so responsible and the claim for damages is made only against her. [26] The objectors led no evidence as to the source of the water. I accept the alternative explanation proposed by the applicant is plausible. The objectors have not made out their case. There is no evidence connecting the applicant to any damage alleged to have been caused by the first incident. The claim for damages alleged to have been caused in 1999/2000 is, therefore, dismissed. The Objection [27] Mr Kemenade questioned whether the objection was properly made. It was not received by the applicant by post until 16 August 2005, the day after the objection period ended. However, it was sent to the address noted on the application well within the objection period (exhibit 20). The delay in its receipt by the applicant was due to its redirection to Rubyvale. I accept the objection was properly made. -- 5 of 7 -- [28] There are three objections made to the grant of MC 70952: firstly, because of the location of the outflow from the dam on MC 70956; secondly because of a water tank on the application area; and thirdly because of the location of some soil on MC 70952 said to have come from the unauthorised excavation of the dam on MC 70546 in 2002. After considering all the evidence presented I have decided to instruct the Mining Registrar to grant the mining claim subject to one condition which is set out below (pursuant to s. 78 of the Act). I will deal with each objection in turn. [29] The location of the outflow from the dam on MC 70546 - The applicant is not the holder of MC 70546. The grant of MC 70952 will not affect the location of the outflow from the dam on MC 70546. Nor is there any evidence that mining on MC 70952 will exacerbate any problems alleged to exist in relation to the outflow from the dam. I do not see any connection between the objectors’ concerns about the outflow from the dam and the proposed activities on MC 70952. I note Mr Kemenade’s offer to bear half the costs of restoring the original outflow to the dam if the objectors will bear the other half and withdraw their objection. Mr Paczkowski did not agree to meet any of the costs and confirmed that even if the original outflow was restored they maintained their objection on other grounds. I do not consider it is appropriate to make the grant of MC 70952 conditional upon any work being undertaken in relation to the outflow for the dam on MC 70546. [30] The water tank – The objectors contend the water tank was placed on a hill on MC 70952 without authorisation. I accept Mr Chappelle’s evidence that this tank replaced an existing water tank. I also accept that the hill was used as a convenient way of obtaining water pressure without the need for a tank stand. There is no evidence before me to indicate whether the original tank was properly authorised. It is clear that the replacement work was undertaken without authority (exhibit 24). However, there has been no mining work undertaken before the grant. Whilst the applicant has been casual and neglectful in relation to obtaining the necessary authorisation, I do not consider the matter sufficiently serious to warrant rejection of an otherwise appropriate application. [31] The soil – The objectors believe there is a pile of soil now located on MC 70952 which came from MC 70546 when the dam was redug by Mr Cellar in October 2002. As a mining claim only permits mining with authorised machinery, which excludes excavators, access to excavated material could present a windfall to the applicant. The objectors’ concern about this is understandable. I have not made a finding that there is any such soil located on MC 70952. It was not sufficiently clear from the photographic evidence. I note that the Mining Registrar issued a direction to Mr Cellar in relation to that material and that the Deputy Mining Registrar thought this had largely been complied with. [32] There is some suggestion in the Deputy’s report, however, that not all the material was returned to MC 70546. I accept that it is appropriate for the applicant to face the same restrictions as other claim holders and should not benefit from Mr Cellar’s unauthorised excavations. Accordingly, I instruct the Mining Registrar to impose a condition on the mining claim that the applicant may not mine any material located on MC 70952 that was excavated from the dam on MC 70952. Before the Mining Registrar grants the claim, I recommend that he identifies the location of such -- 6 of 7 -- material on a map that is filed with the records relating to this claim and a copy of which is provided to the applicant. [33] Before concluding, I wish to note the applicant’s poor compliance history in relation to tenures now no longer held by her. MCs 70545 and 70546, with different tenure numbers, were cancelled twice during the period she held an interest in them. Firstly, for failure to lodge royalty returns for the 1992/1993 financial year and, secondly, for failure to pay rental in 1999. On this occasion I do not consider her past history is such that her application should be rejected. However, I warn the applicant that I would view any further non-compliance seriously and I strongly recommend that she acquaints herself thoroughly with her obligations and responsibilities as the holder of a mining claim. Costs [34] The Tribunal has the power to award costs in special circumstances (s. 52 of the Land and Resources Tribunal Act 1999). Whilst the applicant has been successful in her application and the objectors’ damages claims were entirely unsuccessful, I do not consider there are special circumstances that would warrant the grant of costs in the applicant’s favour. Orders [35] The orders that I make are as follows: 1. The application by Mr and Mrs Paczkowski for damages is dismissed. 2. I instruct the Mining Registrar to grant MC 70952 for the purpose and for the term sought by the applicant, subject to the condition that the holder of MC 70952 must not mine any material located on MC 70952 which was excavated from the dam located on MC 70546. -- 7 of 7 --