Ausburn v Tully [1998] QMW 25

MC60073.QUI 1 IN THE WARDEN’S COURT OF QUEENSLAND HELD AT BRISBANE IN THE MATTER OF: DETERMINATION OF COMPENSATION PURSUANT TO SECTION 85 OF THE MINERAL RESOURCES ACT 1989 IN RESPECT OF MINING CLAIM 60073 QUILPIE BEFORE: MR F W WINDRIDGE MINING WARDEN APPLICANT MINER : ROBERT HARRIE AUSBURN LANDOWNER: JOHN TULLY DETERMINATION: Robert Harris AUSBURN (the miner) seeks the grant of a Mining Claim in the Quilpie District for the purpose of hand mining for OPAL and PETRIFIED WOOD. The claim is 0.073849 in area and is located on the old Yowah Opal Field. The grant of a claim cannot proceed until the matter of compensation between the miner and the landowner is settled by agreement in writing or by a determination of the Court. The parties have failed to lodge a written agreement with the Registrar. The Registrar is therefore required to bring the matter to the attention of the Court for determination. The matter was listed for hearing in the Brisbane Warden’s Court on 28 August 1998 at 10 am. Neither party appeared and no written submissions were received. I am satisfied that both parties had adequate notice of the hearing but failed to attend. [1998] QMW 25 -- 1 of 3 -- MC60073.QUI 2 The application for Mining Claim No 60073 was lodged at the Registrar’s office on 10 September 1996. The term applied for is 5 years and the applicant is the only shareholder. The claim is bounded on all sides by other leases and claims. The claim is situated on Lot 9 on Plan CP854480 in the Parish of Yowah, County of Tingulla, being part of Bingara Holding. Mr John Tully (the landowner) is the proprietor of Bingara Holding and a pastoral business in conducted on the property. The old Yowah Opal Field is located on the property and there are numerous small leases and claims on the property particularly in the vicinity of the township of Yowah. No valuation evidence was offered by either party and no submissions were put forward in respect of quantum. While the Act specifies the matters which must be taken into consideration, it does not define the means by which quantum should be attributed to each head of claim, as long as the final figure reflects the total sum that should be awarded. (Mitchell & Anor –v- Mitchell unreported Land Court 1989). In this instance, the particular circumstances that exist preclude the necessity to consider each head of claim. It appears from evidence tendered to the Registrar that the applicant miner has tendered the sum of $40.00 to the landowner in settlement and this sum has been accepted. The only thing absent is a signed agreement which is required to be lodged with the Registrar. I am further informed by the Registrar that the sum of $40.00 per claim ($80.00 per annum) is the current rate of compensation usually sought by the landowner. I therefore determine that the sum of compensation to be paid to the landowner Mr J TULLY by the miner R H AUSBURN be $8.00 per annum per hectare or part of a hectare. Total compensation due is therefore $40.00. -- 2 of 3 -- Warden’s Court of Queensland 25 September 1998 MC60073.QUI 3 Neither party made submissions as to the times, terms and manner of payment. Since the sum of $40.00 has already been tendered and accepted, I order that the compensation be paid on one lump sum before grant of this claim by the Registrar. Dated at Brisbane this 25 th day of September 1998 F W WINDRIDGE MINING WARDEN -- 3 of 3 --