Bakhash & Ors v Monize [2003] QLRT 133

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Bakhash & Ors v Monize [2003] QLRT 133 PARTIES: In the matter of the renewal of Mining Lease 2643 – Application by Robert Michael Bakhash, Pauline Elizabeth Bakhash, the Estate of Ethel Valentine Newman and the Estate of Charles Phillip Oliver for determination of compensation payable to Helen Monize FILE NO/S: MLC00023/2003 PROCEEDING: Application for determination of compensation DELIVERED ON: 7 November 2003 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers PRESIDING MEMBER: Smith DP ORDER/S: 1. I determine compensation under s. 281(3) of the Act in the sum of $1,950.00. In accordance with s. 281(4)(e) of the Act, I award an additional amount of $195.00, which is 10% of the compensation determined above, to reflect the compulsory nature of the renewal of the mining lease. The total compensation payable is accordingly $2,145.00. (at [29]) 2. I further order the Applicants to pay the sum of $2,145.00 in compensation to the Respondent within 1 month of the renewal of mining lease 2643. (at [30]) 3. I determine costs as follows: (a) The Applicants are to pay the reasonable costs of the Respondent, including reserved costs, to be agreed as between the Applicants and the Respondent, such agreement to occur on or before 4:00pm 14 November 2003, or, failing any such agreement being reached, to be the reasonable costs, including reserved costs, as taxed by the Registrar of the Land and Resources Tribunal. (b) In determining reasonable costs, where reasonable costs have been incurred by the -- 1 of 13 -- Respondent with respect to one activity that relates to both this matter and matter no. MLC00022/2003, then those costs are to be recovered by the Respondent once only. (c) If agreement as to costs is not reached as set out in (a) hereof, the Respondent is to file and serve a Bill of Costs in taxable form by 4:00pm on 28 November 2003. (d) If agreement as to costs is not reached as set out in (c) hereof, the matter is set down for taxation of the Bill of Costs before the Registrar of the Land and Resources Tribunal at Brisbane at 10:00am on 5 December 2003. (at [43]) CATCHWORDS: MINING LEASE – RENEWAL – PRINCIPLES OF COMPENSATION — DETERMINATION OF COMPENSATION – REVOCATION OF RIGHTS – STOCKING RATES – VALUATION FEE – COSTS – SPECIAL CIRCUMSTANCES — INDEMNITY COSTS — TAXATION Mineral Resources Act 1989 ss. 279, 281, 286 Land and Resources Tribunal Act 1999 s. 50 Uniform Civil Procedure Rules 1999 Rules 702, 703, 704 Richardson v Barrett [2001] QLRT 89, followed Horn v Sunderland Court [1941] 2 KB 26, followed Sullivan v Oil Company of Australia Limited and Santos Petroleum Operations Pty Ltd [2003] QLRT 2, considered Atkinson v Warner [2002] QLRT 18, considered Fazzari v Colonial Agricultural Company Limited [2003] QLRT 38, considered Bakhash & Ors v Monize [2003] QLRT 134, referred to Salmon v Armstrong [2002] QLRT 54, followed Colgate-Palmolive Co v Cussons Pty Ltd [1993] 46 FCR 225, considered Rouse v Shepherd (No. 2) [1994] QLRT NSWLR 277, considered Cairns, Australian Civil Procedure, Fifth Edition COUNSEL: N/A SOLICITOR/S: Suthers Taylor for the Respondent AGENT/S: Mr R Bakhash represented himself and the other Applicants -- 2 of 13 -- Background [1] SMITH DP: By undated letter received on 17 February 2003 Mr Bakhash on behalf of himself, Pauline Elizabeth Bakhash, the Estate of Ethel Valentine Newman and the Estate of Charles Phillip Oliver (“the Applicants”) wrote to the Mining Registrar, Mt Isa Mining District, requesting the Tribunal determine compensation with respect to Mining Lease no. 2643. The Applicants had previously lodged an application on 18 December 2001 for Mining Lease 2643, which expired on 31 January 2002, to be renewed for a period of 21 years. Mining Lease 2643 is in the Mt Isa Mining District and covers an area of 2.02 hectares of leasehold land on a property owned by Helen Monize (hereinafter “the Respondent”). Mining Lease 2643, applied for in 1966, originally commenced on 1 February 1974 for a period of 14 years. It was renewed for a further term of 14 years from 1 February 1988. It is a requirement of the Mineral Resources Act 1989 (hereafter “the Act”) that compensation be agreed between the parties or determined by the Tribunal prior to renewal of the mining lease.1 [2] The Applicants were represented in this matter by the Applicant, Mr R Bakhash, whilst the Respondent was represented by Messrs Suthers Taylor Solicitors. Due to difficulties both the Respondent and this Tribunal experienced with Mr Bakhash, a number of directions hearings were necessary. Written submissions and evidence were provided by the parties to the Tribunal. Unfortunately, the evidence provided by the Applicants was, putting it at its highest, very scant. The application was heard on the papers by myself. The Respondent relied upon expert evidence from a valuer, Mr Eales, regarding the value of the land, the impact of the proposed mining on the value of the land, agistment rates and stocking rates. In determining compensation I have taken into account all the material filed by the parties, together with material forwarded by the Mining Registrar, Mt Isa, at the time that the matter was referred to the Tribunal. These reasons refer to the salient points but not all the evidence that I have relied upon in making my decision. The Principles of Compensation [3] The Respondent’s entitlement to compensation is detailed in s. 281(3) and (4) of the Act. In determining compensation, I have adopted the same approach I took in Richardson v. Barrett.2 This means that the matters set out in the section are concepts to be taken into account in determining compensation, not a notion of separate heads of compensation requiring separate and discreet treatment to arrive at an accumulated figure. The overriding principle is of equivalence, ensuring that, so far as money can do it the landholders are placed in the same position as if the mining lease was not renewed.3 Of course, great care must also be taken to ensure that there is no “doubling up” of compensation.4 1 See s. 286 of the Act. 2 Richardson v Barrett [2001] QLRT 89 at paragraphs 9, 10 and 14. 3 Horn v Sunderland Court [1941] 2 KB 26 at 43 per Jacobs J. 4 See, for instance, Richardson v Barrett [2001] QLRT 89 @ 30. -- 3 of 13 -- The Claims for Compensation [4] The Applicants’ position is that no compensation should be paid in this matter. Mr Bakhash had provided the Respondent with 5 copies of a document which he claims to be a compensation agreement prior to this matter being referred to the Tribunal, and has submitted numerous copies of the same document to the Respondent and to the Tribunal post referral. As this document is so crucial to Mr Bakhash’s case, it is appropriate to set out this document in full as follows:- “ IN THE MATTER OF THE MINING ACT 1968-1983-1989 AND IN THE MATTER OF MINING LEASE RENEWAL APPLICATIONS NOS. 2486 AND 2643 MT ISA MINING DISTRICT AND/OR RIGHT OF WAY THERETO RENUNCIATION OF RIGHTS (IN COMPLIANCE WITH SECTION 269 OF THE MINERAL RESOURCES ACT 1989) THIS AGREEMENT is made this day of March 2002. WHEREAS REGINALD EDWARD MONIZE C/- Fishers Creek, Cloncurry is the registered lessee of Fishers Creek Pastoral Co, being crown land described as Parish LELITIA, County of BEACONSFIELD, Cloncurry Land Agents District. AND the said ROBERT MICHAEL BAKHASH, PAULINE ELIZABETH BAKHASH, the Estate of CHARLES PHILLIP OLIVER and the Estate of ETHEL VALENTINE NEWMAN of Public Trustee of Townsville, deceased is the applicant for renewal of Mining Leases 2486 and 2643, Mt Isa Mining District. Under Mining Act 1989 in the Mt Isa Mining district for a term of 21 years. AND WHEREAS the said REGINALD EDWARD MONIZE by virtue of the provisions of the Mining Act 1989 is the person entitled to compensation with respect to:- (a) Deprivation of possession of the surface land or any part thereof. (b) Diminution of the value of the lands of the lessee or any improvement thereon. (c) Diminution of the value of the lands of the lessee or any improvement thereon. (d) Damage caused, or likely to be caused to any improvements thereof or thereunder. (e) Severance of any part of the land from other parts thereof or from other land of the lessee. (f) Surface rights of way; and (g) All damage, loss or expense that arises, is likely to arise as a consequence of any matter referred to in (a), (b), (c), (d), (e) or (f) above. In respect of Mining Leases granted pursuant to the said statute and / or right of way to the said Mining Leases. 1 WHEREAS the said REGINALD EDWARD MONIZE is desirous of renouncing his entitlement to compensation in respect of the said lands upon the Grant of the Mining Lease applications pursuant to the provisions of the said statute. Now this Agreement witnessed as follows:- 1. The said REGINALD EDWARD MONIZE for himself, his Heirs, Executors, Administrators and assigns hereby renounces all his entitlements and claims to compensation pursuant to the provisions of the Mining Act 1989 upon the Grant of the Mineral Leases Renewal Applications No. 2486 and 2643 in the Mt Isa Mining District. -- 4 of 13 -- 2. In the event of any dispute arising between the said REGINALD EDWARD MONIZE as lessee and the said ROBERT MICHAEL BAKHASH, PAULINE ELIZABETH BAKHASH, the estate of CHARLES PHILLIP OLIVER and / the estate of ETHEL VALENTINE NEWMAN deceased / as holders, it is agreed between the parties that the matter of the dispute shall be placed before the Warden whose decision shall be binding and final on the parties. IN WITNESS WHEREOF the said REGINALD EDWARD MONIZE has Set his hand the day and year herein before written. SIGNED BY THE SAID ) __________________________ REGINALD EDWARD MONIZE ) IN THE PRESENCE OF A ) JUSTICE OF THE PEACE ) __________________________ AND BY THE SAID ) __________________________ ROBERT MICHAEL BAKHASH ) __________________________ PAULINE ELIZABETH BAKHASH ) __________________________ The Estate of CHARLES PHILLIP OLIVER ) __________________________ The Estate of ETHEL VALENTINE NEWMAN ) __________________________ IN THE PRESENCE OF ) __________________________ JUSTICE OF THE PEACE ) 2” [5] In his written submissions received by the Tribunal on 27 October 2003, Mr Bakhash says as follows: “Suthers Taylor for Monize ignores the cooperation of the other graziers who have signed the agreement putting them in an inferior class and insulting their intelligence. Suthers Taylor for the Respondent has done everything to hinder and prevent this agreement being signed … ... The compensation agreement that I have sent in does cover all entitlements to Reginald Edward Monize, the Lessee of the Crown Land 2482. … … The Mineral Resources Act 1989 and Section b of Section 279 and states that there is no person other than the (applicant) who is the owner of any of the land referred to in Paragraph (a) and so the renunciation of rights is only for the land of 2.2 Hectares of these leases which the land is owned by my partners and myself. … … The Compensation Agreement of which I sent in to the Tribunal and to the Respondent is down to earth and the clauses protect the graziers land and keeps the miner alert to what is required by him. To his land, in this case 2.2 hectares mostly stony outcrops, no decent grass, some Spinifex and could not support cattle for agistment. Most graziers in this area have accepted the compensation agreement of which I forwarded to the Tribunal and to the Respondent, it is not a long drawn out document. Suthers Taylors Solicitors for Respondent states that we accept that the Respondent is entitled to compensation and we have stated in the compensation agreement that the Respondent is entitled to compensation with respect to paragraphs (A) – (G) in respect of Mining Leases granted pursuant to the said statute and/or Right Away to the said mining leases. … … the Compensation Agreement of which I sent in his been accepted by graziers in the Cloncurry area who are very astute people who understand what the Compensation Agreement is saying and they are very informed on the mining issues. They are not overly demanding of what they are not entitled to.” -- 5 of 13 -- [6] There are numerous errors in Mr Bakhash’s contentions. Firstly, the construction of the so called compensation agreement is clear. It is titled “Renunciation of Rights”. Although Mr Bakhash says that the document sets out the Respondent’s rights to compensation on the first page of the document, what that in fact is, is a recital of the legislative situation under s. 281(3) of the Act. The operative provisions of the document are to be found on page 2. The critical words are at the head of the page, that the landholder “is desirous of renouncing his entitlement to compensation”. The agreement then goes on to provide for a formal renunciation of rights and a dispute resolution clause. Mr Bakhash has placed great, even extreme, emphasis on the point throughout these proceedings that an agreement in essentially identical terms was signed by Mr Monize under previous renewals. Mr Bakhash also says that other graziers have entered into identical agreements. Of course, if any landholder is happy to renounce all rights to compensation as part of a compensation agreement, it is their right to do so. However, if a landholder chooses not to renounce such rights, that is also a matter for them and the provisions of the Act then specify that they should receive proper compensation. The mere fact that others, for whatever reason, have chosen not to seek compensation cannot be held against those landholders who properly seek compensation pursuant to the Act. Mr Bakhash has failed to perceive that there is a distinct difference between a person agreeing to revoke all rights to compensation and a person seeking an award for proper compensation. [7] In Mr Bakhash’s final submissions and reply received by the Tribunal on 27 October 2003 and extracted above, there is finally some clue as to the basis upon which Mr Bakhash has founded his belief that it is proper for landholders to renounce all rights to compensation. Mr Bakhash in his submissions refers to s. 279 of the Act. Section 279(1) is in the following terms: “279 Compensation to be settled before grant of mining lease (1) A mining lease shall not be granted or renewed unless— (a) compensation has been determined (whether by agreement or by determination of the tribunal) between the applicant and each person who is the owner of land the surface of which is the subject to the application and of any surface access to the mining lease land; or (b) there is no person (other than the applicant) who is the owner of any of the land referred to in paragraph (a); and the conditions of the agreement or determination have been or are being complied with by the applicant.” [8] What this section says is that a mining lease shall not be granted or renewed unless either compensation has been agreed or determined as between the mining lease applicant and the owner of the land or the mining lease applicant is the owner of the land. Somehow, Mr Bakhash has confused these provisions so that he now submits that the area of the mining lease is owned by the Applicants. This is clearly incorrect. The subject land is and remains leasehold land subject to the encumbrance of the mining lease for which the Applicants are acquired to pay compensation to the Respondent. [9] There is another point relied upon by Mr Bakhash for the Applicants as set out in his submissions and evidence dated 15 October 2003 as follows:- “… I would like to bring to the notice of the tribunal, the lease of Crown Land of which Helen Margaret Monize who is now the Registered Lessee and I, refer to the conditions M76. The -- 6 of 13 -- Lessee shall not interfere with the miner or mining of the leases of which the land of 2.02 hectares each and owned by self and others … “ [10] Mr Bakhash has supplied a copy of a State Tenure Search relating to the pastoral holding which contains the following condition: “… M76 The stock of bona fide miners engaged in mining on the land and teamsters carrying fuel and ore therefrom shall not be interfered with.” [11] Quite clearly, Mr Bakhash has misconstrued the meaning of condition in M76. It does nothing more than to state that stock and teamsters of miners on the land shall not be interfered with. [12] Mr Bakhash also asserts that the subject land is mostly stony outcrop with little grass and of no value per hectare. I will deal with this aspect of the Applicant’s case when comparing the evidence later in these reasons. [13] The Respondent contends that she is entitled to compensation. Her solicitors rely upon the provisions of the Act. They have pointed out that this lease was first applied for in 1966 and that, save for a little exploration activity, no other mining has occurred on this lease throughout all the years since. The Respondent points to Mr Bakhash’s advanced years, noting the term of the mining lease being 21 years, and relies upon Mr Bakhash’s statements that he intends to mine the lease. The Respondent says that clearly Mr Bakhash will either have the mining undertaken by others at the Applicant’s direction, or transfer the mining lease to others to mine. In either event, it is the clear intent of the Applicants to conduct mining operations and certainly in the Applicants’ interests to maintain a real value in the mining lease. Given the likelihood that one way or another the mining leases may finally be worked, the Respondent is desirous of receiving full and proper compensation for the mining of her land. [14] There is no doubt that compensation is to be assessed under the Act on the assumption that mining will proceed in accordance with the provisions of the Act and the conditions of the mining lease. On its face, I find it rather incredible that such little activity has occurred to date on this mining lease over such a long period of time, and wonder if active mining will ever be undertaken. However, that is not the point. The Respondent has a right to compensation on the assumption that mining will be undertaken pursuant to the terms of the mining lease on the subject land, and I have a responsibility to assess the compensation payable accordingly. [15] In her compensation statement filed with the Tribunal, the Respondent has said that she is prepared to accept $1,000.00 compensation for current disturbances, $5,200.00 for expenses incurred up until that date (which was on or about 7 July 2003) and other sums for “future disturbances or losses”. As regards the future disturbances or losses, she claims the sum of $550.00 per occurrence for cleaning tanks required because of dust caused by mining activities and replacement water of $1,650.00 each time required. The Respondent also sets out the value of various cattle and states that the miner should pay the cost of any damage or injury caused to that cattle. [16] Although the compensation statement is supported by the Respondent’s affidavit dated 7 July 2003, there is little evidentiary support for the claims for future disturbances as set out relating specifically to the Applicants’ mining activities as -- 7 of 13 -- compared to other mining activities already occurring on the Respondent’s land which said mining activities, according to the Respondent, result in the need for cleaning of tanks and purchase of water, etc. The issue of compensation for dust is indeed a complex one as, even absent mining activities, dust can be a problem on rural land. [17] As regards compensation to the Respondent for particular damage that may be caused by the Applicants in the future, I note that other provisions of the Act may indeed be an appropriate avenue for recovery of those costs by the Respondent, if, and when, any such damage to, or loss of, livestock etc occurs. Assessing Compensation [18] In accordance with the principles set by the authorities and as previously discussed by myself in Richardson v Barrett5 and other cases, in my view it is appropriate to rely upon the actual value of the land as one basis for assessing compensation. I accept the valuation evidence of Mr Eales. I therefore assess the value of the land at $150.00 per hectare. As the mining lease renewal is for a term of 21 years, applying standard valuation methodology, it is not appropriate to discount the per hectare amount as the Respondent effectively will suffer a total loss of the land the subject of the mining lease. Accordingly, the sum for the loss of the lease area of 2.02 hectares is $303.00. [19] Mr Eales has provided evidence that the carrying capacity of the property ranges from 1 beast to 10 hectares to 1 beast to 30 hectares, and, using his expertise, arrives at a ratio for the subject lands of 1 beast to 15 hectares. The Applicants do not agree with the stocking ratios as put by the Respondent. The Applicants say that part of the property: “is mostly stony outcrop and hardly any grass of any value and it would be of no value per hectare. The stocking rate of the land the subject of the mining leases expressed as a per hectare beast ratio would be nil. On these small leases because of the scarcity of any value grass and of the stony outcrops. The going agistment rate for these 2 small leases of 2.23 hectares could not be agisted, and would not be of any value for beast to exist on – so therefore would be nil amount per week”.6 [20] I note in particular that amongst the material provided by the Mining Registrar to the Tribunal as part of the referral process is an Environmental Management Overview Strategy for the “Bakhash Project”, including the subject mining lease, prepared in December 1995 by Hetherington Exploration and Mining Title Services Pty Ltd. At page 9, the report says as follows: “Land Use Beef cattle grazing appears to be the dominant form of land use surrounding the Bakhash Mining Leases. Cattle are grazed on a mixture of native and introduced pastures. Permanent water is a limiting factor to carrying capacity. As the operation will be one of low impact exploration the current land use will not be affected to any significant degree. 5 [2001] QLRT 89. 6 See undated letter R.M. Bakhash to Registrar, LRT, received 18 August 2003. -- 8 of 13 -- All areas which are not currently disturbed have been classified as category VII. All disturbances created under this EMOS which currently fall within category VII will be returned to that category upon completion of final rehabilitation procedures”. [21] The Hetherington report is clearly inconsistent with what Mr Bakhash says, and supports the conclusions of Mr Eales. [22] I therefore accept Mr Eales’ stocking ratio of 1 head per 15 hectares. This mining lease therefore has an impact on the carrying capacity of 0.135 of a head for the 2.02 hectares of the mining lease. Adopting an approach consistent with other compensation cases in this Tribunal,7 say 8 hectares of the property are impacted by the existence of the mining lease by way of impact on balance lands and access due to noise, dust, work vehicles, etc. Of course, the impact on the balance land will only be partial. Stocking, to a lesser extent, will continue. I assess that stocking rates will be impacted by say 50% for those 8 hectares. Applying the stocking rate above, this equates to 0.267 of a head. The total impact of the mining lease from a cattle perspective is accordingly 0.402 of a beast a year. I accept the evidence of Mr Eales as to agistment. Applying his agistment rate of $2.00 per beast per week, the total agistment amount would amount to approximately 80 cents per week, or $41.60 per year. Over the course of 21 years, this equates to $873.60. To break this figure down, it equates over the 21 years period to $294.84 for the 2.02 hectares mining lease lands, and $578.76 for the balance lands. Issues of “doubling up” are particularly relevant to the sum of $294.84 agistment costs for the 2.02 hectares of the mining lease and the value of land of $303.00 as assessed at paragraph 18 of these reasons. [23] Compensation relating to severance does not appear to be relevant to this matter. There is however the issue of compensation for blot on title. There is scant, if any, evidence by either the Applicants or the Respondent as to the quantum of such compensation. Certainly, any purchaser of a property does take into account the fact that the property is subject to mining tenements when determining the amount that such prudent purchaser is prepared to pay for the property. In this case, the mining tenement is 2.02 hectares out of 6,475 hectares. The mining lease was first applied for in 1966. Accordingly, I allow a minimal amount for blot on title. [24] By her Affidavit sworn 7 July 2003 the Respondent sets out difficulties that she has in managing her property in light of mining activities. I take this to be evidence in support of a claim for management time. [25] In Sullivan v Oil Company of Australia Limited and Santos Petroleum Operations Pty Ltd, I expressed the view that I found great difficulty in properly assessing the value for management time. Such a claim is fraught with danger of a doubling up.8 I have no evidence of the appropriate hourly rate of pay of an employee of the Respondent or the Respondent herself involved in such management, nor do I have any evidence which properly sets out management time as a head of compensation. I have accordingly taken into account only a minimal amount of compensation for management time. 7 See, for example, Richardson v Barrett [2001] QLRT 89, Atkinson v Warner [2002] QLRT 18, and Fazzari v Colonial Agricultural Company Limited [2003] QLRT 38. 8 Sullivan [2003] QLRT 2 at para 88-92. -- 9 of 13 -- [26] I now turn to the legal and valuation costs incurred in preparing the Respondent’s claim. The Respondent engaged a valuer, Mr Eales, to compile a report for this and a related matter.9 I have accepted Mr Eales’ report in determining compensation in this matter. The fee incurred by the Respondent for Mr Eales’ report was $825.00. As this sum represents the amount paid for both Bakhash matters, I allow 50% of this cost in this matter, amounting to $412.50. [27] As regards legal fees incurred in preparing the claim, the Respondent’s solicitor has provided me with a schedule of fees incurred throughout this matter. It has long been established that the legal costs incurred in preparing a compensation matter may be claimed as an item of disturbance by the landholder. As Kingham DP said in Salmon v Armstrong,10 the date of commencement of proceedings is a milestone that assists the Tribunal to distinguish between legal costs and disturbance items. [28] I accept the legal fees claimed by the Respondent up to and including 12 March 2003 as items of disturbance. I also allow the claim for care and consideration at the rate charged by the Respondent’s solicitor. I also allow a small amount for outlays. Adding these sums together and apportioning 50% of those costs to each Bakhash matter, I allow the sum of $612.50 legal fees as an item of disturbance. As regards the other legal fees claimed by the Respondent, I deal with those as costs in the proceedings later in this judgment. Conclusion on Compensation [29] Taking full account of the foregoing, and, as previously indicated, assessing compensation in a total sum, and taking proper account of doubling-up, I determine compensation under s. 281(3) of the Act in the sum of $1,950.00. In accordance with s. 281(4)(e) of the Act, I award an additional amount of $195.00 which is 10% of the compensation determined above, to reflect the compulsory nature of the renewal of the mining lease. Accordingly, I assess the total compensation in this matter at $2,145.00. [30] The Applicants have made no submissions seeking time to pay the compensation. I note that the majority of the sum I have awarded is for costs already incurred by the Respondent. Accordingly, I further order the Applicant to pay the sum of $2,145.00 in compensation to the Respondent within 1 month of the renewal of mining lease 2643. Costs [31] There remains the issue of costs, including reserved costs, incurred by the Respondent in these proceedings. The Respondent seeks an award of costs pursuant to s. 281(7) of the Act and s. 50 of the Land and Resources Tribunal Act 1999 (“the LRT Act”). In support of this application the solicitor for the Respondent has provided detailed submissions, relevant extracts of which are as follows:- “• The Applicant has persistently submitted the document “Renunciation of Rights” as a suitable Compensation Agreement and has refused to negotiate a reasonable compensation agreement, prior to or after the matter was referred to the Tribunal; 9 See Bakhash & Ors v Monize [2003] QLRT 134. 10 [2002] QLRT 54 @ para 49. -- 10 of 13 -- • The Respondent incurred legal costs in an attempt to provide the Applicant with information on the legislative requirement and to make the Applicant aware that the document is not suitable or acceptable as a modern and reasonable agreement taking into account current standards of mining operations, environmental protection and rehabilitation. A copy of the detailed advice to the Applicant dated 14 April 2003 is attached. As is evident by the Additional Evidence in paragraph 1 herein, the Applicant still refuses to understand or accept this position or seek independent assistance in understanding the MRA requirement which has been a substantial cause of escalated costs for the Respondent; • The Applicant has never sought to undertake mediation in order to resolve the issue of compensation, regardless of Practice Direction 3 of 2002 which expressly states that the Tribunal encourages parties to resolve any disputes in proceedings before it by discussion between themselves, or where appropriate the use of mediation; • In fact, the Applicant continually refused to communicate with the Respondent in her nominated way, which lead to the Tribunal altering Practice Direction Number 1 of 2003 with respect to service, to simply ensure that all Parties receive the information required for that matter to be properly determined by the Tribunal; • Practice Direction Number 1 of 2003 also expressly states that within twenty-eight (28) days after the matter is referred to the Tribunal by the Mining Registrar, the Applicant will file in the Tribunal and serve on the other Party (the Respondent) a compensation statement, however, at no stage of the proceedings has the Applicant provided such information, even after the order of the Tribunal on 21 May 2003 required that information. • This situation which has been created by the Applicant is significantly unequitable given that the Respondent, as the owner of the land, does not hold the onus in supporting the Application to renew the mining lease on her land in the first instance. • The Respondent has subsequently been required to provide valuation evidence, supporting affidavits and incur significant drafting costs so as to satisfy her obligations to the Tribunal as a party, which would have been unnecessary had Bakhash: ° Undertaken to negotiate commercially and reasonably with Monize rather than simply provide Monize insistently and repeatedly with a document that renounces all rights of compensation. This is not a Compensation Agreement nor good faith negotiations pursuant to the MRA. ° Provided an adequate Compensation Statement and evidence to the Tribunal; and ° Communicated with the Respondent as requested.” [32] Despite being given the opportunity by way of reply to put their views as to the Respondent’s claim for costs, the Applicants, through Mr Bakhash, made no comment regarding the Respondent’s submissions. [33] I agree with the Respondent’s submissions. As Mr Bakhash is not legally qualified, I have taken the appropriate course of advising him of his duties and responsibilities to the Tribunal. For reasons known only to himself, Mr Bakhash has maintained the narrowest possible position with respect to compensation that one can imagine. He has steadfastly refused to accept that his “renunciation of rights” document is anything other than a proper compensation determination. Put simply, Mr Bakhash by his actions has placed the Respondent in the position where she had no option other than to seek legal assistance from a solicitor. He has, until the most direct of orders made by myself very recently, refused to accept correspondence from the Respondent’s solicitor. Mr Bakhash’s conduct has been clearly unreasonable. He has acted with the consent and authority of each of the Applicants. In the -- 11 of 13 -- circumstances, I am satisfied that special circumstances exist to warrant an order for costs in favour of the Respondent. [34] The Respondent has asked that the Applicants pay “the Respondent’s entire costs relating to this matter”.11 I take this to be a claim for payment of costs on an indemnity basis. [35] Awards of costs, including costs on an indemnity basis, are detailed in Rules 702, 703 and 704 of the Uniform Civil Procedure Rules 1999. In particular, Rule 704(3) sets out that an indemnity costs order compels the registrar to allow all costs reasonably incurred and of a reasonable amount. In essence, so long as costs were of and incidental to the procedures they are recoverable.12 [36] Indemnity costs are only awarded in special or unusual circumstances. These circumstances can include instances where a Defendant or Respondent unreasonably persisted in denying liability.13 Certainly in this matter there is enough evidence of conduct by Mr Bakhash which could support an award to the Respondents of costs on an indemnity basis. However, there are also some factors which mitigate against this course. [37] Firstly, I have awarded, in effect, the entire legal costs incurred by the Respondent in preparing her claim as an item of disturbance. To this amount has been added the additional award of 10% in accordance with s. 281(4)(e) of the Act. Thus the Respondent has been well compensated for costs incurred up until the referral of this matter to the Tribunal. [38] I also note that Mr Bakhash is quite elderly (in his 80’s), not legally qualified, and disabled. As he wrote in his most recent submissions: “Unfortunately I could not finance a legal representative to represent us at the Direction Hearings of the Land and Resources Tribunal, and my partners could not contribute also. I apologise to you for any inconvenience caused by myself for appearing for us; and of my aged and war disabilities has made it very difficult.” [39] Further, in considering this matter, in my view an award of costs on the standard party and party basis will adequately compensate the Respondent. Under the scheme of the LRT Act, a landholder such as the Respondent in this case would ordinarily come before the Tribunal expecting to meet their own costs of a proceeding, apart of course for those costs recoverable as an item of disturbance. As I have found special circumstances do exist in accordance with s. 50(2) of the LRT Act, the Respondent will recover her costs of the proceeding. As Cairns has put it in his authoritive work:14 “Party and party costs are quantified as the costs necessary or proper for the recipient of the costs to incur enforce or defend a right”. 11 Submission 23 October 2003 p. 8. 12 See Cairns Australian Civil Procedure Fifth Edition p. 516. 13 See Colgate-Palmolive Co v Cussons Pty Ltd [1993] 46 FCR 225 and Rouse v Shepherd (No. 2) [1994] QLRT NSWLR 277. 14 Australian Civil Procedure Fifth Edition p. 514. -- 12 of 13 -- [40] Given the facts of this matter, although Mr Bakhash did not behave well before the Tribunal, nevertheless I consider that an award of costs to the Respondent on the standard party and party basis is reasonable and sufficient in all the circumstances. [41] Due to the conduct of this matter to date, it is not in the interest of anyone for the question of costs to drag on for an extended period. The usual formulation of an order for costs that I make is for the costs to be the reasonable costs as agreed between the parties or, failing agreement, to be the costs as taxed by the Registrar of the Tribunal. While I am prepared to make a similar order in this case, I am only prepared to allow a short period of time for the parties to reach agreement as to what are reasonable costs, and to set the matter down for taxation before the Registrar in the event (as I consider likely) that there is no agreement as to reasonable costs. I am not prepared to specify myself a reasonable amount of costs pursuant to s. 50(3) of the LRT Act as the table supplied by the Respondent does not readily identify usual party and party costs. In the circumstances as already discussed, I consider it more appropriate for the reasonable costs to be agreed or taxed. [42] I am also concerned that much of the work undertaken by the solicitor for the Respondent in this matter is identical to that undertaken by the solicitor in the other Bakhash matter, although, of course, on taxation some costs may be separately recoverable in each matter. Where costs have been incurred by the Respondent with respect to one activity that relates to both Bakhash matters, then those costs are only to be recovered by the Respondent once. [43] I make the following orders as to costs: (a) The Applicants are to pay the reasonable costs of the Respondent, including reserved costs, to be agreed as between the Applicants and the Respondent, such agreement to occur on or before 4:00pm 14 November 2003, or, failing any such agreement being reached, to be the reasonable costs, including reserved costs, as taxed by the Registrar of the Land and Resources Tribunal. (b) In determining reasonable costs, where reasonable costs have been incurred by the Respondent with respect to one activity that relates to both this matter and matter no. MLC00022/2003, then those costs are to be recovered by the Respondent once only. (c) If agreement as to costs is not reached as set out in (a) hereof, the Respondent is to file and serve a Bill of Costs in taxable form by 4:00pm on 28 November 2003. (d) If agreement as to costs is not reached as set out in (c) hereof, the matter is set down for taxation of the Bill of Costs before the Registrar of the Land and Resources Tribunal at Brisbane at 10:00am on 5 December 2003. -- 13 of 13 --