Johnston v Cooper and Paulsen

[2010] QLC 69

LAND COURT OF QUEENSLAND

CITATION:

Johnston v Cooper & Paulsen [2010] QLC0069

PARTIES:

Noel Ian Johnston
(applicant)

v.

Lorraine Cooper
(respondent)

FILE NO:

MRA435-09

PARTIES:

Noel Ian Johnston
(applicant)

v.

FILE NO:

Robyn Paulsen
(respondent)

MRA530-09

DELIVERED ON:

12 April 2010

DELIVERED AT:

Brisbane

HEARD AT:

Emerald and Sapphire

MEMBER:

Mr PA Smith

ORDERS:

1.     The applications are dismissed.

2.     Caveat over Mining Claim 71241 be removed.

3.     Caveat over Mining Claim 71989 be removed.

4.     A copy of the decision to be delivered forthwith to the Mining Registrar Emerald, drawing his attention in particular to paragraphs 19-22.

CATCHWORDS:

Mining Claims – Application under s.363(2)(a) of the Mineral Resources Act1989 to determine ownership
Caveats – Removal of caveats
Evidence – probative weight – credibility of witnesses
Oral contract – uncertainty of terms – insufficient evidence to discharge onus

APPEARANCES:

Noel Ian Johnston (applicant), self represented
Lorraine Cooper (respondent in MRA435-09), self represented
Robyn Paulsen (respondent in MRA530-09), self represented

Background

1. These matters arise in somewhat unusual circumstances. On 9 July 2009, the applicant lodged a caveat with respect to Mining Claim 71241, held by Lorraine Cooper, the Respondent  in MRA 435-09. The caveat was duly registered by the Mining Registrar, Emerald, with an expiry date of 9 October 2009. Prior to the expiry of the caveat, the applicant lodged an application in the court (“the Cooper claim”), seeking the following order:

   “Want full ½ possession of property back to me”.

2. Due to the urgency of the extension of caveat application, a speedy hearing was held in Emerald. At the commencement of the hearing, an immediate question was to determine what precisely it was that the applicant was seeking. After some discussion, it became clear that the applicant was seeking an extension of the caveat and a determination as to ownership of Mining Claim 71241.

3. Relevant orders were made by consent of the parties in order to ensure that the issues as between the parties could be determined by these proceedings. The hearing continued over two days, including an inspection of the mining claim, until Cooper indicated that she wished to obtain legal advice. The hearing was adjourned, and orders made retaining the caveat on an interim basis.

4. When the hearing resumed, in Sapphire, Cooper remained self-represented. However, the matter became somewhat more confused because of another claim commenced in the Land Court, this time against Paulsen with respect to Mining Claim 71989 (“the Paulsen claim”). The applicant seeks the right to mine the claim, and is supported by caveat 1016873.

5. Turning first to the Cooper claim, the applicant alleged that Cooper had orally promised to put half of the claim in his name but that “the cost was $80 so she just stated ‘I’ll just leave it in my will,’” on the condition that he “did the right thing” sic.[1] Paulsen is in occupation of the Cooper Mining Claim. It was alleged by the applicant that the interest in Mining Claim 71241 has been sold by Cooper to Paulsen. This is denied.

   [1]     See page 143 of the Court Transcript.

6. Paulsen’s Mining Claim is adjacent to Cooper’s Mining Claim.

7. As a matter of convenience to all parties, and with their consent, orders were made that both matters be heard together.

8. As well as evidence from the applicant, Cooper and Paulsen, evidence was also given by a number of members of the Sapphire mining community. In addition, the parties tendered various statutory declarations. Significant evidence was also placed before the Court by way of exhibits.

9. In considering this matter, I have taken into account all of the evidence placed before me. These reasons refer to the salient points, but not specifically to all of the evidence, which I have taken into account in arriving at my conclusions.

10. The facts of this case were presented as a morass of allegations from both parties as to alleged unsavoury and illegal conduct.

11. Out of the quagmire of evidence, I make the following findings of fact:

    1.There was some form of oral arrangement between the parties Johnston and Cooper for half of Cooper’s Mining Claim to be held by Johnston;

    2.At the time of the agreement, Johnston and Cooper had some form of relationship and/or friendship;

    3.The terms of the oral arrangement were vague and uncertain and based in domestic relationship/friendship rather than in mining legislation or contract law;

    4.Many of the statements attributed to the key witnesses amounts to little more than “beer banter”;[2]

    [2]      See Transcript, page 156, lines 30-38.

    5.If the friendship had been maintained there is no doubt that Johnston would still be mining on Cooper’s Mining Claim, with a share of the proceeds being given to Cooper;

    6.Johnston entered into a short-term relationship with Paulsen. Cooper willingly allowed both Johnston and Cooper to live on her Mining Claim for part of the duration of their relationship, and allowed Johnston to mine the claim;

    7.Johnston assisted Paulsen in all relevant aspects of her Mining Claim application. The intention was for Paulsen to set up residence on that claim;

    8.Paulsen has no intention of undertaking mining on either mining claim, her intentions regarding both claims currently are, and materially always have been, purely residential in nature;

    9.The relationship between Paulsen and Johnston suffered a complete breakdown;

    10.The Cooper/Johnston friendship/relationship consequentially also broke down, with Cooper siding with Paulsen. Cooper subsequently allowed Paulsen to reside on her Mining Claim;

    11.Cooper is not now prepared to transfer half of her interest in her claim to Johnston and has not changed her will.

    12.Cooper has sold her Mining Claim to Paulsen, and has received cash payments from Paulsen for that sale. No transfer has been lodged with the Mining Registrar;

    13.Paulsen and Cooper have no intention of mining the claims and intend, at the first opportunity, to fill in the mine shaft which has been created by Johnston on the Cooper Mining Claim;

    14.Johnston did in the past, and would now if able, conduct mining operations on both Mining Claims.

    15.The evidence of all material witnesses, except Mr McLaughlin, is tainted by their siding with either Johnston or Cooper/Paulsen. Specifically, I find that Johnston, Cooper and Paulsen were all willing to lie under oath if in their opinion untruthful statements would advance their respective cases.

Elements of Alleged Cooper/Johnston Contract

Offer and acceptance

1. The alleged oral contract fails primarily because the offer is insufficiently certain. A contract must be a clear statement of terms.[3] It is not necessary for the contract to be in writing.

   [3]Australian Woollen Mills Pty Ltd v Cth (1954) 92 CLR 424; Whitlock v Brew (1968) 118 CLR 445; G Scammell & Nephew Ltd v HC and JG Ousten [1941] AC 251.

2. What is accepted must be the same as what was offered. It is not clear what was offered as there is conflicting evidence, none of which is probative. In the cross-examination of the applicant by the first respondent, the evidence appears to show that the offer was an offer for a future conditional interest in a mining claim to be placed in the will of the first respondent, as admitted to by the Applicant on pages 21 and 143 of the transcript. The condition was that the applicant “be good to her” or “do the right thing by her”. This was also admitted to in the “grounds” of the original application filed in the Court, where the applicant states his ground for having a 50% interest is that he had always intended to be good to her “I was all for doing the right thing”. The terms and conditions of the alleged agreement fail for uncertainty as does the offer. There is no evidence that any such agreement was placed in the will. There is no evidence of what “be good to her” is defined as, apart from that of ‘beer banter’. There is no evidence of whether the offer was in fact to be placed in the will or was to take effect at an earlier date, and if so at what date. The evidence of the witnesses is insufficient as the majority of the witnesses did not attend the Court. Cooper alleged Johnston’s supporting statutory declarations were actually written by Johnston. Johnston alleged his witnesses were threatened. Whichever story is the truthful account, the fact remains that the evidence has little probative value. The onus has not been discharged.

Consideration

1. There is no probative evidence as to what consideration was paid for any interest in the claim. The evidence provided by both parties is contradictory and unsupported. The limited documentary evidence is mostly supplied in the form of affidavits which are largely unreliable and unsupported by witnesses present in the Court. The evidence is unable to be linked to any alleged oral agreement. The onus has not been discharged.

Mutual intention to be bound

1. There is no probative evidence that Cooper intended to be bound. There is a presumption that in social or domestic arrangements there is no legal intention to be bound.[4] The onus has not been discharged.

   [4]Balfour v Balfour [1919] 2 KB 571; Cohen v Cohen (1929) 42 CLR 91; Murphy v Simpson [1957] VR 598.

Legality

1. This case is a quagmire of allegations regarding alleged illegal behaviour by all parties. If a contract is to do something illegal, or for an illegal purposes or in an illegal way it will be invalid and unenforceable. “ex turpi causa non oritur action” (no action arises from a base case). The public policy reason is:

   “No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act…If …the cause of action appears to arise ex turpi causa, or [in] the transgression of a positive law of this country, there the court says he has no right to be assisted”. Holman v Johnson (1755) 1 Cowp 341 (at 343); 98 ER 1120 (at 1121).”

   However, the allegations made in open Court were completely unreliable, contradictory and apart from being stated in Evidence-In-Chief by Cooper and Paulsen, were unsupported by any evidence, either documentary or by reliable corroborating witnesses. No finding can be made on the evidence before the Court of illegality on the part of Johnston.

Credibility of the Evidence

1. A useful reference to the nature of disputes in the mining jurisdiction is found in the decision Pacminex (Operations) Pty Ltd v Australian (Nephrite) Jade Mines Pty Ltd,[5] Justice Wells described the Mining Warden’s jurisdiction thus:

   They perform for the mining community, to the members of which vociferous quarrels and violent disputes are not unknown, a service not dissimilar to that performed by the old courts of Piedpouldre. A mining Warden, too, is expected to know mining and miners, and the customs, expectations, practices and attitudes of those over whom they may be called to exercise their jurisdiction much as Lord Mansfield’s special juries understood the customs and practices of the bankers and merchants of old London. He should be able to deal, decisively, authoritatively, and promptly, with disputes that arise in the field.[6]

   [5](1974) 7 SASR 401.

   [6]     Referred to by White J in Queensland Decor Aggregates Pty Ltd v Cadman unrep SCQld 4 August 1997, and by King CJ in Carr v Simnovec (1980) 26 SASR 263.

2. The present matter before the Court was, on the whole, unsavoury and borne out of previous close relationships and domestic disputes between the parties, overlaid with allegations of criminal behaviour including drug use and trafficking. The majority of the witnesses were biased to one side or the other and no finding can be made on the evidence before the Court. Evidence is only to be accepted where it is supported by reliable witnesses or factual documents. The only reliable witness with nothing personal to gain was Patrick Daniel McLachlan who gave evidence that he helped Cooper peg her claim and that there was some form of oral arrangement between the Applicant and Cooper based on a domestic relationship, the terms of which were vague and uncertain and had been discussed in a social situation over a beer, so that the specifics could not be recalled by Mr McLachlan.[7]

   [7]See page 155 of the Court Transcript.

3. While considering the unreliability of the witnesses, I am satisfied that Johnston is the one person before the Court who intends to mine either of the Mining Claims. It is against the fundamental objects of the Mineral Resources Act1989[8] for Cooper and Paulsen to maintain an interest in the mining claims when it is clear on the evidence that their sole purpose for holding the claims is residential. I specifically find that the mining requirements of both Mining Claims are not being fulfilled. This is a breach of conditions under s 81 of the MRA, which has consequences under s 106. The relevant provisions provide as follows:

   81   Conditions of mining claim

   (1)Each mining claim shall be subject to—

   (a)   a condition that the holder shall use the land comprised in the mining claim bona fide for the purpose for which the mining claim was granted and in accordance with this Act and the conditions of the mining claim and for no other purpose;

   (b)   a condition that the holder shall not assign or mortgage the mining claim or any part thereof without the consent in writing of the mining registrar

   …

   (4)A mining claim shall contain a condition as to the work commitment required of the holder.

   [8]See s.2.

   106 Contravention by holder of mining claim

   (1)A mining registrar who considers that the holder of a mining claim—

   (a)   has carried out activities that are not bona fide for the purposes for which the mining claim was granted; or

   (b)   has failed to pay the royalty or any other moneys payable thereunder (other than rental) or in respect thereof by the due date for payment; or

   (c)   has failed to comply with any condition that is to be observed and performed by the holder under or in respect of the mining claim, other than a condition with respect to matters referred to in subsection (2)(a) or (b);

   may—

   (d)   cancel the mining claim; or

   (e)   impose on the holder a penalty not exceeding 100 penalty units.

   (2)A mining registrar who considers that the holder of a mining claim—

   (a)   in any rental year has failed after notice given to the holder in accordance with section 95(5) to pay before 1 December of that rental year the amount of the rental payable under that section by that date in respect of that mining claim; or

   (b)   has failed to pay a penalty imposed on the holder pursuant to subsection (1)(e) within the time allowed for the payment by the mining registrar; may cancel the mining claim.

   (3)A mining registrar shall not act pursuant to subsection (1) until the mining registrar has, by notice in writing in the approved form served on the holder of the mining claim, called upon the holder to show cause within the time specified therein why the mining claim should not be cancelled or a penalty imposed and served a copy of the notice on every person who currently holds a recorded interest in respect of the mining claim at the person’s address last recorded by the mining registrar and such cause has not been shown to the satisfaction of the mining registrar.

   (4)A mining registrar who pursuant to this section cancels a mining claim shall notify the holder accordingly stating the reason for the cancellation.

   (5)The cancellation of a mining claim under this section shall take effect on the day next following the mining registrar’s determination to cancel the mining claim.

   (6)The mining registrar must, within 5 business days after the cancellation takes effect, give written notice of it to the EPA administering authority.

4. Furthermore, the sale of Cooper’s interest in the claim to Paulsen would appear to be a breach s.81(1)(b), particularly in circumstances where such sale has been deliberately concealed.

5. The consequences of a breach of conditions of the Mining Claims are that the Mining Registrar may cancel the Mining Claims as per the provisions in s.106. I draw this to the attention of the Mining Registrar for any action as regards to forfeiture or cancellation of the Mining Claims that he considers necessary and appropriate.

6. I have no doubt that if cancellation action is taken, both Cooper and Paulsen will claim an intention to undertake mining on the Mining Claims. I reiterate that they are not persons to be believed and I specifically find that neither has any intention of mining the claims.

The Paulsen Mining Claim

1. To the extent necessary and relevant, I draw the same conclusions as to the legal consequences of the ‘arrangement’ between Johnston and Paulsen as I have done with regard to Johnston and Cooper. In particular, the terms of any agreement regarding Johnston mining on Paulsen’s Mining Claim are vague, and arose out of a then existing relationship between them.

Conclusions

1. The onus is on the Applicant to establish his case. Any alleged oral contract regarding an interest in the Mining Claims fails due to uncertainty of terms. As the evidence provided is unreliable, the onus has not been discharged. Therefore the applications must be dismissed.[9] As a result the caveats dependent on the applications must be removed from Mining Claims 71241 and 71989.[10]

   [9]Peretz v Adams, Tobler & Anor [2003] QLRT 97.

   [10]     Chillagoe v Weil & Stein [2008] QLC 0161 (following the decision of Arthur v Department of Natural Resources and Mines [2003] QLRT 100); Re Arkaroola Resources Pty Ltd v. Niugini Mining (Australia) Pty Ltd [2001] QLRT 12.

Order:

1.The applications are dismissed.

2.Caveat over Mining Claim 71241 be removed.

3.Caveat over Mining Claim 71989 be removed.

4.I direct the Registrar of the court to forthwith provide a copy of this decision to the Mining Registrar, Emerald, drawing his attention in particular to paragraphs 19-22.

PA SMITH

MEMBER OF THE LAND COURT