MLG OZ LTD -v- WARDEN B AYLING [2020] WASC 329 (16 September 2020)

[7] MLG uses the road (Road) situated on miscellaneous licence 15/111 (L15/111) to transport sand and gravel to MLG's customers.

[8] The Road connects the Mining Leases to the Coolgardie North Road. The Coolgardie North Road is a public road.

...

[10] The Road is unsealed and is approximately 14 [km] in length.

[11] MLG maintains the Road at its cost as required by the conditions of grant of L15/111.

1. The decision of the warden records further relevant facts:

(1) The road was built for Western Mining Corporation which in 2006 re-registered the licence in the name of BHP Billiton Nickel West Pty Ltd.

(2) In 2015, MLG purchased the licence (and a lease) from BHP Billiton, and the transfer was registered in 2016.

(3) MLG uses signs on the road 'MLG Lease. Private haul road. No entry'. It regards the road as a private road.

(4) The holder of the pastoral lease underlying L15/111 retains rights in relation to the land.[1]

1. It is not in dispute that GFSG has been using the road over which MLG holds its licence, and unless restrained will continue to do so.
2. MLG does not otherwise produce any evidence regarding its possession of the land the subject L15/111.
3. It is also not in dispute that the procedure under the Native Title Act 1993 (Cth) for the lawful grant of mining title has not been completed and GFSG does not yet hold L15/383.

1. Mining tenements, including miscellaneous licences, are defined as including the specified land in respect of which the tenement is granted or acquired.[2] But a mining tenement is not an estate or interest in the land the subject of the tenement.[3]
2. A miscellaneous licence is granted under pt IV, div 5 of the Mining Act. It may be granted 'for any one or more of the purposes prescribed', and, authorises the holder to 'do such matters and things as are specified in the licence'.[4] The purposes prescribed include a road.[5]
3. A miscellaneous licence may be granted in respect of land that is the subject of another mining tenement and may apply concurrently with another mining tenement with respect to that land.[6]
4. MLG referred to the following conditions of its licence:
   1. The road be constructed using proper materials to suit the purpose for which it is being constructed, namely heavy haulage of ore, and further that it be constructed in a workman like manner and further that it be constructed to the satisfaction of the Mining Engineer ‑ District Inspector for Minds (the inspector).
   2. The holder shall maintain the road from time to time as shall be required to ensure that it is safe for the purpose that it is constructed.
   3. At each end of the road the subject of this license a sign to be erected such sign to be in a conspicuous position and readily noticeable to persons about to move onto the road and to carry words conveying to any such person that the road is a road relating to mining operation of the holder and that it is designed for and used for the purpose of carrying heavy haulage vehicles in connection with a mining operation.
5. MLG's miscellaneous licence is subject to a prescribed condition that the licensee shall continuously use the licence for the purposes for which it was granted.[7]
6. MLG is required to pay rent on the licence.

1. MLG relied on its rights in relation to the land arising from its miscellaneous licence under the Mining Act and the absence of any licence or other authority held by GFSG in relation to the land.
2. In the affidavit of Mr Leahy, he deposed that MLG runs approximately 16 trucks along the road each day, the trucks are quad road trains, and they run to a sophisticated schedule 'because in some parts the Road is not wide enough such that two trucks travelling in opposite directions can pass safely'.[8] MLG has complained to the Department of Mines, Industry Regulation and Safety but has been advised the department regards the matter as a civil matter.
3. MLG led undisputed evidence that GFSG has been using the road. It did not, however, produce evidence that the use by GFSG caused it damage, or interfered with its rights to use the road pursuant to the miscellaneous licence.

1. The classic statement of the purpose of an interlocutory injunction is 'to keep matters in status quo until the rights of the parties can be determined at the hearing of the suit'.[9] The judicial review application, however, is concerned with the lawfulness of the decision that GFSG be granted a miscellaneous licence. Those proceedings will not determine whether MLG, as a licensee, has rights pursuant to which it may restrain GFSG or others from using the road. That relief would need to be established in other proceedings of a different character.
2. MLG's rights arise from a statutory licence, entitling it to use the land for the specified purpose of a road. In Western Australia v Ward, in relation to a mining lease granted under pt IV, div 3 of the Act, Gleeson CJ, Gaudron, Gummow and Hayne JJ said:

There are many examples of the exercise by equity of its jurisdiction to enjoin interference with the enjoyment by the plaintiff of rights (not necessarily proprietary in nature) conferred upon it by or under statute. The rights conferred by s 85 of the WA Mining Act would remain fixed for the duration of the grant, but the practical content and thus the scope for injunctive or other appropriate remedies would vary with the actual or intended activities of the grantee of the statutory rights. Notwithstanding the limited legislative purpose in enacting s 85(3) of the WA Mining Act, it would appear that the holder of a mining lease granted under that statute would be protected in this way against interference by others with the enjoyment of the rights conferred by s 85(1) and (2), and that this protection would not be confined to the activities of defendants asserting a concurrent right to prospect or mine. The holder of a mining lease is entitled to the law's protection (for example, by way of injunction) to prevent any person interfering with the exercise of those rights which are conferred by the grant ...[10]

1. I do not intend to suggest that MLG may not have rights which would be protected in equity. But the question of such interference does not arise in the judicial review proceedings: the restraint sought is unrelated to the preservation of the status quo in those proceedings.
2. Further, on the present state of the evidence, MLG has not established that, pursuant to its miscellaneous licence, it has exclusive rights in relation to the road which should be protected by the grant of an injunction. Nor am I satisfied that MLG has suffered, or will suffer, harm for which it could not be compensated in damages arising from any interference with its rights under the licence.
3. The application for an interlocutory injunction will be refused.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] See Affidavit of Timothy Joseph Kavenagh, sworn 14 July 2020, TK6, 48 ‑ 50.

[2] Mining Act s 8.

[3] TEC Desert Pty Ltd v Commissioner of State Revenue (WA) [2010] HCA 49; (2010) 241 CLR 576 [27].

[4] Mining Act s 91(1) and (3).

[5] Mining Regulations 1981 (WA) reg 42B(a).

[6] Mining Act s 91(7) ‑ (8). See also s 94A.

[7] Mining Regulations reg 41(b).

[8] Affidavit Murray Ian Leahy [12] - [13].

[9] Sir Frederick Jordan, Chapters on Equity in New South Wales, (6th ed, 1947) 146, quoted by Gleeson CJ in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 [9].

[10] Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 [291].