Case Appraisal of Land Access Disputes
Case appraisal is one of the Alternative Dispute Resolution (ADR) options available for negotiating a conduct and compensation agreement (CCA) for land access under the Mineral and Energy Resources (Common Provisions) Act 2014.
The case appraisal is conducted by a Convenor from the court’s ADR panel. The Convenor makes a decision on material provided by the parties. The decision is only final and binding if the parties accept the decision.
The Convenor’s role is to decide the reasonable and appropriate terms for a CCA. Before making that decision, the Convenor will facilitate discussions between the parties to agree on a CCA, if they can.
The case appraisal process will involve the following steps:
- The parties will provide information to the Convenor.
- The parties will discuss the terms of a CCA at a conference with the Convenor.
- The case appraisal ends when:
- both parties agree on all terms of a CCA and have signed it; or
- the Convenor gives the parties their decision.
The parties must:
- cooperate, act courteously, and act in good faith throughout the case appraisal; and
- comply with by the Convenor’s directions about the procedure for the case appraisal.
Unless the Convenor considers different or additional directions are necessary, they will make the following standard directions:
“Each party must give to the Convenor and the other party:
- By 4pm on [usually, 2 weeks from the date of the directions]:
- a statement of the issue(s) in dispute and how they want the issue(s) resolved; and
- any documents or signed statements of evidence they wish to rely upon in the case appraisal.
- By 4pm on [usually, 4 weeks from the date of the directions]:
- a statement in response, if any; and
- any further documents or signed statements of evidence in reply, if any.
The Convenor will convene a conference with the parties [usually, within 6 weeks from the date of the directions] to:
- hear briefly from the parties about the issues;
- clarify with the parties any matters arising from their material;
- facilitate a discussion between the parties about the terms of a CCA; and
- if the parties agree on all or any of the terms of a CCA, record that agreement.
The parties must attend the conference in person, unless the Convenor excuses them from doing so because of exceptional circumstances. A party may attend in person by using remote means such as phone or video conference.
If a party does not attend in person, a representative may attend on their behalf, but the representative must properly understand the issues and have full authority to enter into a CCA for that party.
A party may bring a lawyer or agent to the conference who may assist the party during the case appraisal. A lawyer or agent has the same obligation as a party to cooperate, act courteously and in good faith, and comply with the Convenor’s directions.
If the parties agreed on all the terms of a CCA at (or after) the conference, they will sign the CCA and the resource holder will register it.
If the parties did not agree on all of the terms of a CCA at the conference, but both parties request it, the Convenor may convene a second conference.
Otherwise, the Convenor will prepare their decision, usually within 4 weeks of the conference.
The decision will:
- be in writing;
- attach a CCA which includes:
- the mandatory conditions;
- any terms the parties agreed or did not dispute; and
- the Convenor’s proposed terms for any terms that were in dispute; and
- give brief reasons for their decision.
If both parties accept the Convenor’s decision, they will sign the CCA attached to the decision, and the resource holder will register it.
If either or both of the parties do not accept the Convenor’s decision:
- If both parties agree, they can ask for a further conference to try to agree on any of the disputed terms. The Convenor must not make a further decision, but can facilitate the parties’ discussions.
- Either party can apply to the Land Court for a decision. The Land Court can only make a decision about any terms of the CCA that remain in dispute.
Do you have more questions about case appraisal?
Contact the Land Court to discuss your options. Attend an interview at the Land Court Registry in person, by phone or via video conference.