Morris v Hutchison

Introduction

1. I have concluded that the appropriate way to structure this judgment is to set out, comparatively briefly, a summary of the conclusions which I have reached about the various contested issues and, as a consequence, what outcomes necessarily flow from all of them. I do so by grouping the various matters in a related fashion so that conclusions and outcomes in a particular area can be seen together.

Acceptability of evidence

1. Although there were some aspects of the evidence of Mr Shane Morris (the Applicant) that were not entirely satisfactory, I am satisfied that he did not, unlike Mr Owen Hutchison (the First Respondent), seek to lie to the Court in any material respect, nor to manipulate any of the physical features requiring consideration in these proceedings. As I have set out at relevant points in this judgment, I decline to accept the evidence of the First Respondent unless it is corroborated by reliable independent evidence (whether documentary or otherwise).
2. For the reasons I have later explained, I am satisfied that the First Respondent was not truthful in his evidence concerning the alcohol containers that he photographed in the underground workings on Mineral Claim 56861 (Claim 1). Indeed, I am satisfied that he physically manipulated two of the beer stubbies, shown in photographs forming part of his evidence, in order to have it appear that there were more such bottles in the underground workings than was actually the case. The two photographs evidencing this are annexed to this judgment.
3. It is unnecessary for me to make a positive finding that the First Respondent imported those alcohol containers shown on the surface and underground. It is sufficient for me to observe that the Applicant denied taking those containers onto Claim 1 or into the underground workings on Claim 1. Given that, for the reasons earlier explained, I consider it appropriate to prefer the Applicant's evidence over that of the First Respondent (when their evidence is in conflict), it is sufficient that I accept the Applicant's evidence that he did not take the alcohol containers onto Claim 1.

The Martin Hutchison conversation

1. Although I have not concluded that the conversation heard by Ms Messenger outside the courtroom in any way influenced the First Respondent's subsequent substantive evidence, I am unable to accept as truthful his evidence of a complete lack of recollection of anything said during that conversation, or of the tone used by the First Respondent's son, Mr Martin Hutchison (Martin) to the First Respondent during the course of that conversation. The First Respondent's unsatisfactory evidence, in this respect, provides a further reason to conclude that the Applicant's evidence is to be preferred when in conflict with the First Respondent's evidence, unless that evidence was to be independently satisfactorily corroborated.

General

1. The submission on behalf of the Applicant that the mining arrangement between him and the First Respondent was a partnership is rejected. The proposition advanced on behalf of the First Respondent that this arrangement was one based on a contract is the correct characterisation of the mining arrangement. This conclusion is consistent with the evidence given by the Applicant and by the First Respondent.
2. This relationship between the Applicant and the First Respondent was a contractual profit-share arrangement. I have concluded that it encompassed an arrangement whereby the Applicant would mine Claim 1 to the exhaustion of its potential before moving on to mine Mineral Claim No 56862 (Claim 2) on a similar basis.

The 2011 diary

1. I do not accept that the note made by the First Respondent in his 2011 diary book (depicted in Exhibit E) reflected conditions agreed to by the Applicant as forming the basis of the mining arrangement for the two Mineral Claims. I am satisfied that the arrangement was one simply confined to the share of the profits to be derived from opal won from the claims after reimbursement to the Applicant of his fuel costs.
2. Although it was not put to the First Respondent by Ms Ashworth, counsel for the Applicant, that this material was of recent invention, I am not satisfied, on the balance of probabilities, that what was there recorded resulted from any conversation between the parties (with this diary entry allegedly being a contemporaneous note of what it encompassed). This position arises as a consequence of my broad determination that, whenever there is a conflict of evidence between the Applicant and the First Respondent, the Applicant's evidence is to be preferred.

Termination of the arrangement

1. I have concluded that the arrangement between the Applicant and the First Respondent was unilaterally terminated by the First Respondent on or about 10 August 2017 without valid cause.

Mining into Martin's claim

1. To the extent that the Applicant crossed the boundary line between Claim 1 and Mineral Claim 56735 held by Martin (Martin's claim), I am satisfied that the First Respondent had actual or ostensible authority to authorise the Applicant to do so, and in fact did so.

Propping

1. Although the Applicant's underground operations can be regarded as not being carried out according with best practice, I am unable to conclude that they were actually, as opposed to potentially, unsafe. Indeed, the propping activities subsequently undertaken by the Applicant were a reasonable, if imperfect, response to the prohibition notices.
2. The evidence given by the Applicant as to the safety of his underground workings and the absence of propping necessity reflects a view honestly held by him, but a view not supported by the independent mining engineering evidence subsequently obtained by each party.
3. The fact that the Applicant had not undertaken propping did not provide a basis to justify the First Respondent's termination of his contractual arrangement with the Applicant, as the First Respondent had impliedly endorsed the mining process being undertaken.
4. The complaint by the First Respondent to the regulator leading to the issue of the prohibition notice/notices is to be seen as a tactical manoeuvre by the First Respondent to justify the termination of the arrangement with the Applicant. It did not reflect any genuine concern held by the First Respondent about safety of mining on Claim 1.

Claim 2

1. I am satisfied that the First Respondent remains the beneficial owner of Claim 2, despite his having transferred the nominal ownership of that claim to Mr Justin Hawkins (the Second Respondent).
2. The arrangement, whereby the First Respondent purportedly transferred ownership of Claim 2 to the Second Respondent, was a sham and that the First Respondent remained the beneficial owner of Claim 2, consistent with the assertion of this position by his legal representatives in March 2018.
3. I conclude that the reason for doing so was to avoid the potential for the Applicant to be able to enforce his right to mine Claim 2. This conclusion, and the fact that that First Respondent remains the beneficial owner of that Mineral Claim, was relevant when it came to consideration of what should be the compensation entitlement of the Applicant for the unlawful termination of the arrangement which he had with First Respondent.

The Super Digger claim

1. The First Respondent had no valid basis to block the entrance to the underground workings on Claim 1 in order to prevent the Applicant from removing his Super Digger and any other equipment from the underground workings.
2. However, although I am satisfied that the First Respondent's blockade of the access shaft to the underground workings on Claim 1 had the effect of unlawfully depriving the Applicant of the ability for him to use his Super Digger for a period of about 327 days, for the reasons set out I am satisfied that there is no valid basis upon which I could calculate (and therefore order) compensation to the Applicant for this deprivation.

The cost of work by Parkes Hydraulics

1. I am satisfied that, of the work undertaken by Parkes Hydraulics on the Applicant's Super Digger, a significant portion of that work was requested by the First Respondent. I am satisfied that that work was organised only for the benefit of the First Respondent and that he should bear the cost of this taking place.
2. As a consequence, it is appropriate to order the First Respondent to pay the Applicant $10,000, this (uncontested as to quantum) sum being the portion of the total costs of the work undertaken by Parkes Hydraulics on the Applicant's Super Digger for the benefit of the First Respondent. It is appropriate to order that the First Respondent pay this sum to the Applicant within 28 days of the date of the orders finalising these proceedings.

Costs

1. Although the Applicant is not been entirely successful in his claims against the First Respondent, I do not consider that there is any basis upon which to apportion costs. As a consequence, the First Respondent is to pay the Applicant's costs of the proceedings on the ordinary basis, unless my Associate is notified within 14 days that a party wishes to propose some alternative costs order. As the Second Respondent, although properly joined as a party to the proceedings, played no significant role in the proceedings, it is not appropriate to make any costs order against him.

Introduction to decision proper

1. Claim 1 has so far yielded ~$840,000 worth of opal. Claim 1 is located in the Olympic Dribble Opal Field, some 75 kilometres south-west of the town of Lightning Ridge in the north-west of New South Wales. Claim 1 has dimensions of approximately 50 metres by 50 metres and has been mined to approximately 20% of its area. The underground mining methods that have been deployed to extract the valuable opal already won from the mine on Claim 1 require later discussion in some detail. Claim 2 is of the same dimensions as Claim 1 and lies to its south, sharing a common 50-metre border with Claim 1. Claim 2 has not yet been mined.
2. As at about 25 May 2015, Claim 1 and Claim 2 were registered in the name of the First Respondent. The date of their original registration is not relevant. Claim 2 was subsequently transferred to the Second Respondent on 4 August 2017. The Second Respondent says that he paid the First Respondent $500 cash (this being the evidence of both respondents) to have the registered ownership of Claim 2 transferred. During the course of his oral evidence in these proceedings, the Second Respondent testified that he would not sell Claim 2 if he was offered $500,000 for it.
3. There is a third Mineral Claim involved in the factual matrix of these proceedings, Martin's claim.
4. The Applicant is an experienced opal miner who owns a collection of the substantive mining equipment necessary to carry out the surface and underground mining activities for the extraction of opal from mineral claims. The First Respondent owns a drilling rig used to sink holes of varying diameters. A number of holes on Claim 1, and along its boundary with Martin's claim (the claim immediately to the north of Claim 1), play a role in these proceedings.

The dispute between the Applicant and the Respondents

1. I have earlier noted the First Respondent's ownership of Claim 1 and Claim 2 as at 25 May 2015. This date marks the commencement of the relationship between the Applicant and the First Respondent, when an agreement was struck between them that the Applicant would become the nominated mine operator of (at least) Claim 1.
2. The terms of that agreement are in dispute as to a number of significant elements.
3. It is, however, not in dispute that the arrangement (however to be described) was to be undertaken on the basis that the Applicant and the First Respondent would split the value of any opal won from Claim 1, on the basis of 70% to the Applicant and 30% to the First Respondent (after making an allowance in favour of the Applicant from the proceeds to reimburse him for the cost of the fuel utilised by him in undertaking the mining activities).
4. Such profit-sharing arrangements are not uncommon in the opal-mining industry because of its fickle nature - when some mineral claims may yield significant opal values, whilst others, even in the comparatively near vicinity, may turn out to be "complete duds".
5. I set out below a table of relevant chronological events together with the source of the entry from which each item is derived:

The Court's jurisdiction

1. The Court's jurisdiction to deal with the dispute between the Applicant and the First Respondent arises from a number of the elements of s 293(1) of the Mining Act 1992 (the Mining Act). The relevant elements of s 293(1), potentially engaged in these proceedings, are set out below: 293 Jurisdiction of Land and Environment Court (1) The Land and Environment Court has jurisdiction to hear and determine proceedings relating to any of the following matters: (a) …, (b) …, (c) …, (d) …, (e) …, (f) any demand for debt or damages arising out of prospecting or mining, (g) any demand for specific performance of any contract relating to any authority or Mineral Claim, (h) the right to any mineral in, or to be recovered from, any land subject to an authority or Mineral Claim, and the rights under, or arising out of, any contract relating to any such mineral, (i) any transfer or disposition of, or charge on, land subject to an authority or Mineral Claim, (j) matters concerning: (i) any partnership relating to an authority or Mineral Claim, or to prospecting or mining, or (ii) the existence, formation and dissolution of any such partnership, or (iii) the taking of accounts in connection with any such partnership, or (iv) the contributions of the partners as between themselves, or (v) the determination of questions arising between the partners, (k) …, (l) …, (m) …, (n) …, (o) any question or dispute arising as to the working or management of land subject to an authority or Mineral Claim, (p) all rights claimed in, under or in relation to an authority or Mineral Claim or purported authority or Mineral Claim, (q) …, (r) …, (s) any question or dispute in connection with an interest (whether legal or equitable) in, or affecting, an authority or Mineral Claim, (t) …, (t1) …, (u) …, (v) …, (w) …, (x) any other matter in respect of which jurisdiction is conferred on the Court by this Act. (2) Nothing in this section limits or restricts the jurisdiction conferred on any other court by any other Act or law.
2. As can be seen, this list is expansive and provides sufficient basis to consider and determine all matters in dispute in these proceedings.
3. Ms Ashworth also submitted that the ancillary jurisdiction pursuant to s 16(1A) of the Land and Environment Court Act 1979 (the Court Act) was also potentially engaged. This provision is in the following terms: 16 Jurisdiction of the Court generally (1) The Court shall have the jurisdiction vested in it by or under this or any other Act. (1A) The Court also has jurisdiction to hear and dispose of any matter not falling within its jurisdiction under any other provision of this Act or under any other Act, being a matter that is ancillary to a matter that falls within its jurisdiction under any other provision of this Act or under any other Act. (2) For the purposes of this Act, the jurisdiction of the Court is divided into 8 classes, as provided in this Division.
4. However, s 22 of the Court Act set out below provides a better path for resolution of ancillary matters: 22 Determination of matter completely and finally The Court shall, in every matter before the Court, grant either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by that party in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided.

The relief sought

1. In the Summons commencing these proceedings, the Applicant sought the following relief with respect to the arrangement between himself and the First Respondent concerning mining arrangements for Claim 1 and Claim 2. The final relief sought was in the following terms: a. A declaration of the complainant interest in the claims via taking accounts in relation to all transactions in relation to the claims. b. The defendant to do all such things and signs all such documents to give effect to the orders of the court in the event of any failure to act or sign any documents then the Registrar of the Land and Environment Court at Lightning Ridge be empowered to do such acts and sign such documents or any other orders this Honourable court deems fit. c. Any other order this Honourable court deems fit. d. Costs.
2. On 9 March 2018, a cross-claim was filed for the First Respondent. The cross-claim sought the following relief: 1 A declaration that the oral mining agreement entered on or about 26 May 2015 between the cross-claimant and the cross-defendant (mining agreement) was validly terminated by the cross-claimant on or about 10 August 2017 or alternatively 7 March 2018. 2 Damages for breach of the mining agreement. 3 Interest pursuant to ss 100 and 101 of the Civil Procedure Act. 4 Costs.
3. On 10 September 2018, a Notice of Motion was filed for the Applicant seeking leave to rely on an Amended Summons. The motion was heard and leave was granted on 24 September 2018. The relief now sought was: 1 A declaration that the partnership between the Applicant and the Respondent in respect of Mineral Claim Nos 56861 and 56862 (Mineral Claims) has not been terminated. 2 An order restraining the Respondent by himself and his servants and agents from taking any step calculated to prevent or hinder the Applicant from accessing the land to which Mineral Claim No. 56861 relates or from working such Mineral Claim. 3 An order requiring the Respondent to remove any and all obstructions to the access holes on the land to which Mineral Claim No. 56861 relates, installed by him or at his direction. 4 Equitable compensation and/or damages. 5 Damages for loss of use of the Applicant's equipment that was detained in the area of Mineral Claim No. 56861 for the period 10 August 2017 to 3 July 2018. 6 Interest. 7 Costs.

Introduction

1. Affidavit evidence was read in both the Applicant's and First Respondent's cases. Not all of the lay witnesses deposing affidavits were required for cross-examination. Of the non-party lay witnesses, only Mr Lohse, an opal miner giving evidence in the Applicant's case, was required for cross‑examination.

The expert evidence

1. In addition, expert evidence was given by two mining engineers, Mr Panich, for the Applicant, and Mr Chapula, for the First Respondent. At this point, I provide only a summary of the expert evidence. It is discussed in more detail in my consideration of propping issues concerning Claim 1.
2. Each party provided a Geotechnical Assessment Expert Report for Claim 1 (the Applicant's report, provided by Mr Panich, became Exhibit H and the Respondents' report, provided by Mr Chapula, became Exhibit 3). Mr Chapula also provided a response to Mr Panich's report (Exhibit 4). They provided a joint report which became Exhibit J. The geotechnical experts gave oral evidence concurrently on 20 March 2019. A number of issues arose out of their written and oral evidence which I will now detail.
3. In Mr Chapula's initial report of 27 September 2019 (Exhibit 3), Mr Chapula provided a diagram of areas where he deemed secondary support was necessary before Claim 1 could have further mining undertaken on it (page 8, Figure 6). It should be noted that, to correctly read the diagram, it needs to be rotated slightly in a counter-clockwise direction. This diagram is reproduced as Annexure B.
4. The experts agreed in cross-examination that Annexure B accurately depicts that 28 timber poles have been installed (Transcript, 20 March 2019, page 258, line 46 and page 259, line 12). Mr Panich's report of 30 October 2018 notes that the 28 timber poles were installed under the previous court orders to extract the Applicant's equipment safely from the mine (Exhibit H, Court Book, folio 625, page 3).
5. Both experts also agreed that secondary support was needed for further work in the mine, this agreement being reflected in the Joint Expert Report (Exhibit J, Court Book, folio 647) and in cross-examination (Transcript, 20 March 2019, page 258, lines 46 to 49 and page 260, lines 32 to 34). However, there was contention between the experts regarding how many props were needed. Mr Panich stated 41 props in total were needed (Transcript, 20 March 2019, page 257, line 17), whereas Mr Chapula stated an additional 41 props, to the 28 props already in place, were needed (Transcript, 20 March 2019, page 257, line 14).
6. Through the cooperative process of the expert witness concurrent evidence, the experts agreed that if a party wanted total freedom to mine in any direction on Claim 1, 41 props would need to be installed. And if the miner took a particular direction in the mine, then that number could be less (Transcript, 20 March 2019, page 263, lines 5 to 17).

The Applicant's lay witnesses

1. The lay witnesses who gave evidence on behalf of the Applicant were:

• The Applicant, himself. The Applicant deposed four affidavits. These were dated 8 December 2017, 9 June 2018, 28 August 2018 and 2 November 2018. Although a number of elements in these affidavits were not read, and some other elements were rejected (after objections pressed by Mr Stretton, counsel for the Respondents), these affidavits and their attached documents comprised the primary evidence in the Applicant's case;
• Mr William O'Brien, a grazier who holds a number of mineral claims in the Lightning Ridge opal fields;
• Mr Charles Carpenter, an opal miner;
• Mr Todd Lohse, an opal miner who had done some work with the Applicant on Claim 1. As earlier noted, Mr Lohse was required for cross-examination. He gave his oral evidence by video-link from Walgett Court House, the courthouse closest to Lightning Ridge with such video-link facilities.
• Mr Tony Cummins, an opal miner who had done some tunnel drilling work with the Applicant in about 2009 or 2010 in Sydney and deposed to the charge rates of hydraulic digger contracts in the Sydney market for such services; and
• Ms Monique Messenger, a junior clerk in Ms Ashworth's chambers. Ms Messenger deposed an affidavit concerning a conversation she witnessed between he First Respondent and Martin outside the courtroom at the end of the second day of the hearing.

1. Mr O'Brien, Mr Carpenter, Mr Cummins and Ms Messenger were not required for cross-examination.

The First Respondent's witnesses

1. The First Respondent deposed two affidavits dated 26 September 2018 and 6 December 2018. As with the Applicant, the First Respondent's affidavits were read after the exclusion of a number of elements which were not pressed and other elements that were rejected after objection by Ms Ashworth. A range of supporting documents and photographs were appended to the First Respondent's affidavits. The First Respondent was required for cross-examination. It is to be observed that, although the First Respondent has a camp in the vicinity of Lightning Ridge, his home is in the New South Wales Riverina township of Leeton.
2. The Second Respondent is the registered holder of Claim 2. The Second Respondent deposed an affidavit dated 20 December 2018. Although the Second Respondent's usual occupation is as a labourer in Leeton, the town where he lives, he aspires to be an opal miner and has undertaken the mandatory pre-opal-mining course necessary before being permitted to be the operator of mining activities on a mineral claim. The Second Respondent was also required for cross-examination.

Introduction

1. Ms Messenger is a law student employed as a junior clerk in Ms Ashworth's chambers, Wardell Chambers. On the afternoon of 19 March 2019, she arrived outside my courtroom, shortly before the time scheduled for the afternoon adjournment, to collect Ms Ashworth's trolley of folders and other papers.
2. Ms Messenger gave evidence by affidavit concerning an incident that she had witnessed outside my courtroom at about 3.50-3.55 pm on the afternoon of 19 March 2019. Her affidavit was dated 22 March 2019. The statement concerned what she had observed outside the courtroom. Her note of what she had observed was annexed to her affidavit and was admitted without objection. As earlier noted, Ms Messenger was not required for cross‑examination.

Ms Messenger's statement

1. The relevant portion of her note was in the following terms: … After some discussion that I did not hear, the Witness was asked to leave the Courtroom. Prior to the witness leaving the Courtroom 10A, I saw a man exit the room and turn right and wait around the corner opposite the lift. He was approximately 6ft tall, around 30-40 years of age, brown hair, of Anglo-Saxon decent (sic), wearing suit pants, black loafer shoes, and I believe a blue shirt. Then the witness leaved (sic) the Courtroom, this gentleman was older approximately 5 ft8 tall, grey hair, had a limp, wearing a green check shirt, belt and denim jeans, I heard his Honour refer to him as Mr Hutchison. As the doors of the Courtroom shut the younger of the two men started angrily addressing the witness with a low volume. I was not able to hear the full extent of the conversation, but I could tell the younger man was quite emotional and was using profanity. I heard him say multiple times of (sic) the witness 'you need to stay on topic' and 'you're going off fucking topic'. I did not hear the witness respond. Then the doors of Courtroom 10A were re‑opened, the witness was asked to enter, both men went back into the Courtroom. I heard his Honour decided to stand down for the day the Witness but not excuse him, the witness was then warned very clearly about not discussing his evidence with any of his legal counsel or his son. When Court was adjourned both men were the first to leave the Courtroom and waited for a lift together, however they were not talking.

Mr Hutchison's cross-examination concerning Ms Messenger's statement

1. On the morning of 20 March 2019, the hearing commenced with a number of preliminary matters, including preliminary matters concerning Ms Messenger's note concerning what she had observed outside the courtroom the previous afternoon. As earlier noted, this was subsequently turned into an affidavit. The First Respondent was cross-examined by Ms Ashworth concerning the conversation about which Ms Messenger had recorded her note. This cross‑examination was in two tranches. The first of them was in the following terms (Transcript, 20 March 2019, page 199, line 37 to page 191, line 42): Q. Do you recall yesterday afternoon, just before court finished for the day, the judge asked you to leave the courtroom? A. Yes. Q. And a short time later you were asked to come back inside? A. Yes. Q. Martin was outside the courtroom with you; correct? A. Yesterday? Q. Yesterday afternoon. A. Yes. Q. And Martin spoke to you when you were outside, didn't he? A. I don't recall. Q. You don't recall whether or not Martin said anything to you while you were outside the Court for a short time yesterday afternoon? A. No. Q. Do you know there's a camera outside the courtroom, Mr Hutchinson? A. I presume there's a camera there. Q. Do you recall Martin saying to you something to the effect of, "You're going off fucking topic." A. I don't recall. Q. Do you recall saying A. He could have. I don't HIS HONOUR: Hang on, the witness hadn't finished his answer. ASHWORTH: I apologise. WITNESS: I don't recall. I just don't remember what he was talking about. It might have been other things. ASHWORTH Q. So he was talking to you, though? A. He could have been. I don't recall talking to him. Q. Well, what was he saying? A. I don't recall. Q. He said to you, "You need to stay on topic," didn't he? A. He could have. I can't remember. Q. He was swearing? A. I can't remember. Q. You can't remember what happened yesterday afternoon? A. I wasn't listening to him. Q. He was angry with you, wasn't he? A. I wasn't I just wasn't listening to what he was saying.
2. The second tranche was in the following terms (Transcript, 20 March 2019, page 193, line 28 to page 194, line 11): Q. Someone saw Martin speaking to you outside the courtroom yesterday afternoon. So as a matter of fairness to you, I just want to give you an opportunity is it your evidence that you don't recall anything Martin said to you on that occasion? A. Outside? Q. Outside I'll just be very precise about the time. It was before court finished for the day, about five to ten minutes before court finished. Like I asked you earlier this morning, the judge A. You meant just out here? Q. Yes. The judge asked you to leave the courtroom A. Yes. Q. and Martin also A. Yes. Q. and then you were asked a short time later to come back inside A. Yes. Q. Your evidence earlier this morning was that you don't recall what Martin said to you? A. I don't recall what he said. Q. You don't recall him swearing at you? A. No. Q. You don't recall him saying, "You're going off fucking topic." A. No. Q. "You need to stay on topic." A. No. Q. You don't recall what his demeanour was? A. No.

Consideration

1. As I was aware of the matters about which the First Respondent was to be cross-examined (as I had, without objection from Mr Stretton, already looked at the note prepared by Ms Messenger which subsequently became Annexure A to her affidavit), I paid close attention to the First Respondent's demeanour in the witness box during his cross-examination on this topic.
2. There are several observations to be made concerning both what the First Respondent said and what I observed of him while he was saying it with respect to the conversation described by Ms Messenger.
3. As her recollection was unchallenged and was clearly recorded, I accept it as an accurate description of what occurred.
4. During his cross-examination by Ms Ashworth on this topic, the First Respondent did not expressly deny any of the matters about which Ms Messenger had made her note.
5. The First Respondent's answers were, at best, dissembling and prevaricating. His repeated statements that he either "couldn't recall"; "couldn't remember" or "wasn't listening to what Martin was saying" are not credible under the circumstances of that which was described by Ms Messenger as to the nature of what was being said and the tone in which it was being delivered.
6. The First Respondent appeared to me to be quite uncomfortable at the nature of this questioning, as well as being surprised that he was being questioned on this topic. I noticed him shifting in his seat whilst he was responding to Ms Ashworth's questions.
7. I am unable to accept the First Respondent's lack of recollection concerning what Martin had said to him and Martin's demeanour in its delivery.
8. I have set out the cross-examination, the context giving rise to it and my observations concerning the First Respondent's demeanour during this cross‑examination, not for the purpose of suggesting that his further evidence concerning other topics was in any way influenced by the haranguing he received from Martin.
9. However, I do set it out for the purposes of explaining why it is one of the matters that causes me to conclude that I am unable to believe the First Respondent on matters where there is conflict with his evidence (particularly conflict with evidence given by the Applicant), unless the First Respondent's evidence is otherwise credibly corroborated (and, as later discussed in more detail, I do not accept that the Second Respondent's evidence is to be regarded as falling in such a category).

The issues

1. A series of separate but interrelated issues require to be determined to resolve the range of matters in dispute between the Applicant and the First Respondent. These matters are: 1. How the arrangement between the Applicant and the First Respondent for the mining of Claim 1 is to be characterised; 2. However the arrangement for mining of Claim 1 is to be characterised, what were the terms of that arrangement; 3. Did the Applicant breach the terms of the arrangement; 4. If so, what were the consequences (if any) of such breaches on the arrangement between the Applicant and the First Respondent to mine Claim 1, however characterised; 5. Did the arrangement between the Applicant and the First Respondent (however characterised) also encompass future mining of Claim 2; 6. How is the transfer of Claim 2 by the First Respondent to the Second Respondent to be viewed; 7. In light of the determinations with respect to all of the above issues, is it appropriate to contemplate making orders concerning the renewal of Claims 1 and 2, when their present terms expire in late 2019; 8. How is the dispute concerning the cost of works undertaken to the Applicant's Super Digger by Parkes Hydraulic Services Pty Ltd (Parkes Hydraulics) to be resolved; and 9. Finally, what should be the appropriate form of such relief as might be appropriate to be granted to the Applicant (if any) in light of the conclusions reached with respect to each of the above issues.

The primary evidentiary conflicts

1. Although there was significant documentary and photographic evidence attached to the affidavits of the Applicant and the First Respondent (and additional documents were tendered during the course of the proceedings), the primary evidentiary conflict requiring my consideration and resolution arises with respect to the content of conversations held, or alleged to have been held, between the Applicant and the First Respondent. Resolution of which of these witnesses I should prefer on the basis of their written and oral evidence lies at the heart of my determination of the Applicant's claim against the First Respondent.
2. It is appropriate to note that, in my conclusion that I should prefer the evidence of the Applicant over that of the First Respondent (for reasons explained in detail), it is to be observed that, given the known frailty of human memory when combined with the effluxion of time, conflicts of recollection will arise (even in stark terms, as is here the position).
3. As a general proposition, preferring one witness over another on relevant matters does not involve making a finding of deliberate untruthfulness concerning the evidence given by the witness who is not being preferred.
4. However, in this instance, for reasons set out in some detail at several points in this decision, I am satisfied that, concerning a matter of potential significance in the dispute between the Applicant and the First Respondent, the First Respondent's evidence was both inaccurate and was deliberately fabricated. This is a significant factor weighing in my decision not to prefer his evidence over that of the Applicant.

The maps of the underground workings

1. Two maps of the underground workings on Claim 1 (and their incursions into Martin's claim) were in evidence. The first of them was produced by the Applicant (Court Book, Vol 1, folio 243), whilst the second was produced by Mr Chapula (Exhibit 4, page 6). These maps are, in all necessary fundamental respects, sufficiently similar that it is not necessary to draw any distinction between them. These maps are reproduced in Annexures A and B (with the map prepared by Mr Chapula rotated so as to be in the same orientation as the map prepared by the Applicant). These plans now both are oriented so that north is to the top.
2. It is to be observed that the map of the workings prepared by the Applicant does not include any details of propping, as what he has drawn is simply designed to reflect the state of the workings as he left them. It can also be seen that the map prepared by the Applicant is in multiple colours. The Applicant's evidence also included a key (Court Book, Vol 1, folio 242) to these colours. A copy of that key is to be found at Annexure C.
3. These maps of the underground workings are important to enable a proper understanding of: 1. the Applicant's evidence concerning the safety of his working arrangements; 2. the relevant provisions of the NSW Opal Mining Safety Guidelines (the Safety Guidelines) later discussed; 3. Mr Lohse's evidence concerning safe working practices; and 4. the prohibition notices issued by Mr Babic (also later discussed).

The video evidence

1. Appended to the Applicant's affidavit dated 2 November 2018 was a USB stick containing two short videos taken by the Applicant on 20 February 2018 and 21 May 2018, being a date after he had been shut out from working Claim 1 and also being well after the date upon which the First Respondent asserts that he terminated the arrangement with the Applicant.
2. There being no objection to these videos by Mr Stretton, they were played in Court on the second morning of the hearing.
3. The first video was two minutes and 14 seconds in duration, whilst the second was two minutes and 53 seconds in duration. The USB stick storing these two videos became Exhibit D. The consequence of this is that all of the images in each of the videos became part of the evidence in the proceedings. It has not been necessary to extract any images from these videos for the purpose of annexing them to this judgment.

The terms of the agreement between the Applicant and the First Respondent

1. The First Respondent asserted, in his affidavit of 26 September 2018, that there were only a limited number of terms constituting the scope of the agreement he had with the Applicant as the basis of the Applicant working Claim 1. It was his evidence that his agreement with the Applicant was confined to Claim 1 and that, to the extent that the possibility of the Applicant mining Claim 2 at some time in the future arose, it only arose in a contingent sense. The contingency, it was the First Respondent's position, was the satisfactory performance of the Applicant in mining out Claim 1 prior to there being any contemplation of mining on Claim 2.
2. It was the First Respondent's evidence that the terms of the limited agreement (however that agreement might be characterised, a matter needing to be discussed elsewhere in this decision) were: 1. The profit realised from mining Claim 1 (whether to be distributed as cash or opal being unspecified) was to be 70% to the Applicant and 30% to the First Respondent of the net value of the opals recovered. The net value was to be the gross value less the cost of reimbursing the Applicant for the fuel costs he incurred for running the equipment necessary to undertake the mining operation; 2. There was to be no mining across any of the boundaries of the claim by incursion into any adjacent claim; and 3. There was to be no consumption of alcohol on the claim by the Applicant.
3. This agreement was said to have been reached during the course of a conversation between the First Respondent and the Applicant held on 26 May 2015 at Lightning Ridge.
4. The Applicant does not dispute that an arrangement was agreed between himself and the First Respondent on the date nominated by the First Respondent. He does not dispute that the profit-splitting arrangement, and the ratio underpinning that arrangement, nominated by the First Respondent (post fuel cost reimbursement) had been agreed.
5. However, it was the Applicant's evidence that this comprised the totality of the nature of the agreement between them. In effect, the position he advanced is that he would supply the necessary equipment underground and the surface equipment necessary to support the underground activities (such as a blower to ventilate the underground workings), whilst the First Respondent would, in effect, contribute his ownership of Claims 1 and 2 to the arrangement.
6. Ms Ashworth, on behalf of the Applicant, submitted that this arrangement should be characterised legally as a partnership, whilst Mr Stretton characterises it as a mere contract. Those differences will need to be explored later in my determination of the nature of the legal relationship established between the Applicant and the First Respondent for the purposes of exploiting the mineral potential of Claim 1 and whether Claim 2 was encompassed by the arrangement (however characterised).
7. I observe that, in his affidavit of 26 September 2018, the First Respondent said at paragraph 15: I always viewed it as more like a share farming arrangement than a partnership.
8. However, the legal nature of the relationship between the Applicant and the First Respondent is a matter for my determination in light of all the facts and circumstances I find are appropriate to be considered in undertaking that determination.
9. The First Respondent's belief, although expressed in imprecise and temporally undefined terms, and where there is no express evidence from either the Applicant or the First Respondent of any discussion of how their relationship concerning Claim 1 (and, potentially, Claim 2) was to be characterised, is, nonetheless, of some utility in my assessment (for reasons later explained.
10. There is no executed written agreement between the Applicant and the First Respondent. However, the First Respondent relies on what he asserts is a contemporaneous note which he made on 25 May 2015. It was the First Respondent's evidence that he had made this note in a 2011 calendar year diary that he habitually carried with him for the purposes of note-taking. A copy is reproduced at Annexure D.
11. The question of whether or not I should conclude that the relevant notations depicted on Annexure D were in fact a contemporaneous note of the fundamental terms of the agreement between the First Respondent and the Applicant is in dispute.
12. The First Respondent relies on Annexure D to justify his unilateral termination of the agreement because, amongst other things, of the Applicant's breach of the "no alcohol" and "no boundary-crossing" conditions said to be evidenced by the notation in the diary. Other matters concerning the safety or otherwise of the underground activities undertaken by the Applicant on Claim 1 are also said by the First Respondent to give rise to significant safety issues, also contributing to the justification of his termination of the arrangement with the Applicant.
13. It is, therefore, in issue as to how I am to treat the entry on the right-hand page of the First Respondent's 2011 diary, said by the First Respondent to contain his alleged contemporaneous note of the terms of his agreement with the Applicant.
14. Following its production, in response to a call made by Ms Ashworth, the whole of the First Respondent's 2011 diary book, together with the leather folder housing it and a number of pages which had been ripped from the diary but inserted in the sleeve in its leather holder, were tendered (Exhibit E). This material comprised the totality of what was depicted in the image at folio 419 of the Evidence Book.
15. Before turning to consider the relevant pages of the diary (the photocopy depicting more than merely the relevant page appearing at folio 419 of the Evidence Book and reproduced as Annexure D to this decision), I should note that there is no explanation as to why the right-hand page of the diary containing the notation upon which the First Respondent seeks to rely commences with the date 26 May 2011, whilst the left-hand page commences with a date more than three weeks' earlier. There is no explanation for this curious occurrence or of the ripped-out pages as none was sought by Ms Ashworth in her cross-examination of the First Respondent. I therefore pay no heed to these missing pages.
16. The diary note also asserts that the Applicant was required to abide by all mining regulations.
17. In the context of the term in the agreement framework relied upon by the First Respondent concerning the necessity for the Applicant to obey mining regulations, there are three observations appropriate to be made.
18. First, to the extent that there might be regulations, in a subordinate legislation sense, applicable to opal-mining activities, the Applicant would be legally obliged to obey those that were relevant to his activities, whether or not any arrangement with the First Respondent encompassed them or not.
19. Second, matters relating to occupational health and safety regulations do play a role with respect to the Applicant's mining activities, as later discussed in more detail.
20. Finally, the Safety Guidelines became Exhibit 1. The Applicant and Mr Lohse gave evidence from a miner's perspective concerning matters contained in Exhibit 1, whilst Mr Chapula and Mr Panich gave short general evidence concerning the applicability of the guidelines contained in Exhibit 1. All of that evidence is considered elsewhere. It is, however, appropriate to note for the purposes of this discussion that the guidelines in Exhibit 1 do not constitute regulations as that term is properly to be understood.
21. On the Applicant's case, the profit-share arrangement with the First Respondent effectively encompassed the totality of the contract between them concerning Claim 1. It is also his evidence that the scope of the contract also included the future mining of Claim 2 on the same profit-share basis.
22. On the other hand, the position concerning the arrangement pressed by the First Respondent is that, in addition to the profit-share arrangement for Claim 1, there were a number of further fundamental conditions recorded in Annexure D to govern the Applicant's mining activities on Claim 1. The First Respondent denies that the agreement also encompassed Claim 2.
23. These further fundamental terms alleged by the First Respondent (as earlier noted) were that: 1. The Applicant would not consume alcohol (both above and below ground) on Claim 1; and 2. No mining would take place across the boundaries of Claim 1.
24. The First Respondent also presses that there was an implied term in the arrangement that the Applicant would diligently apply himself and his equipment to the mining operations on Claim 1.
25. With respect to the Applicant's assertion that the May 2015 agreement with the First Respondent also encompassed the future mining of Claim 2, the Applicant says that the 4 August 2017 transfer of the ownership of Claim 2 to the Second Respondent was a sham, one undertaken for the sole purpose of removing ownership of that claim from the First Respondent so that the Applicant could not assert what he says were his rights to mine that claim in the future.
26. It is also appropriate to make a further observation concerning the operation of the agreement between the Applicant and the First Respondent as it was undertaken (no matter what might be found by me to be its physical scope or operative terms). It is not disputed that the commercial elements of the arrangement were effected either in cash or by the division of the physical opal won from the Applicant's underground mining activities on Claim 1. No formal accounting records of transactions between the pair were kept.
27. However, the Applicant did keep some rudimentary records of fuel expenses and there was, in evidence as an attachment to his affidavit dated 9 June 2018, a record of the valuations given through the system operated by the Lightning Ridge Miners' Association of the vast bulk of the opals taken by the Applicant from Claim 1. A copy of the first page of this document (Court Book, Vol 1, folios 82 to 84) is reproduced as Annexure E to this judgment. Alcohol and bottle matters

Introduction

1. I have earlier noted, at [2] to [4] and at [64], that I prefer the Applicant's evidence to that of the First Respondent's when their accounts were in conflict. It is appropriate to explain, in some detail, a significant reason why I have reached this general conclusion. It arises from the First Respondent's evidence concerning what he said was the "alcohol ban" condition of his version of the agreement with the Applicant and how the First Respondent said I should conclude that the Applicant had breached that condition. This is dealt with in this section of this judgment.
2. A second reason is later dealt with in my discussion of the "transfer" of Claim 2 to the Second Respondent.
3. Further reasons arise from the First Respondent's oral evidence concerning Martin's harangue of the First Respondent outside the courtroom on 19 March 2019 whilst the evidence (written and oral) concerning Parkes Hydraulics also provides reinforcement of my sense of unease concerning the First Respondent's evidence overall.

Mr Hutchison's affidavit evidence

1. As previously noted in this judgment, the First Respondent asserted in his affidavit of 26 September 2018 (Court Book, Tab 16, at [14] and [15]) that a term of his agreement for the Applicant to work Claim 1 was that no alcohol was to be on the site. His 2011 diary, recording reference to this allegedly agreed condition, was earlier noted.
2. The Applicant denied that this term formed any part of his agreement with the First Respondent (Transcript, 18 March 2019, page 47, line 22 to page 48, line 2). In cross-examination, the Applicant did not dispute that the First Respondent found bottles on Claim 1. However, he did deny that he had consumed alcohol on the site or let others drink on the site (Transcript, 18 March 2019, page 78, line 11 to page 79, line 1).
3. In his 26 September 2018 affidavit, the First Respondent stated that, in early 2017 he "started noticing beer cans and empty alcohol bottles on claim 56861 when [he] would visit" (at [37]). He then stated he attended Claim 1 and inspected it on around April 2017 (at [39(d)]): There were alcohol cans and bottles inside the mine and around the hole. There was about 13 of them. I took photos later which I annex below.
4. The photos to which the First Respondent referred were annexed to his 26 September affidavit at Tab 16(F) and at appear at folios 429 to 432, 433, and 435 to 437 of Volume 2 of the Court Book. A short description of each bottle is necessary for the conclusion found in this section.
5. Folio 429 is a close-up photo of a Jim Beam bottle, positioned between a worn white hose and a rusted iron frame part. Folio 430 is a more distant photo of the Jim Beam bottle and includes an unidentifiable dark coloured beer bottle. These photos are taken above ground.
6. Folio 431 appears to be to be in the mine, with two James Squire One Fifty Lashes' bottles, identifiable by the back of the label on each, wedged in a crack in the rock of the mine. Folio 432 is also two James Squire One Fifty Lashes' bottles in the mine, positioned differently to the previous photo, with the front of their labels facing upwards.
7. Folio 430 is a photo of a XXXX Gold can. Folio 435 is a photo of two XXXX Gold bottles, with a third hidden under rubble in the mine.
8. Folio 436 is a photo of three XXXX Gold bottles with two of the labels facing up and, on the third of them, the label is turned to the side.
9. The final relevant photo is on Folio 437 and is a Bundaberg Rum can, identifiable also by the label.
10. The First Respondent was cross-examined extensively on his written and photographic evidence regarding bottles on the site. This included explicit questioning about the affidavit of 26 September 2018 and the photographs described above behind Tab 16. In cross-examination, when questioned, the First Respondent repeated his assertion that he found 13 bottles on the site (Transcript, 19 March 2019, page 179, lines 27 to 30).
11. Ms Ashworth continued to question the First Respondent about the alcohol bottles and whether the photos depicted the same alcohol bottles. The proposition was put to the First Respondent that he had moved them, which he denied (Transcript, 19 March page 181, lines 1 to 35), set out below: Q. That photo shows a Jim Beam bottle; correct? A. Yes. Q. Can I take you to page 430? A. Yes. Q. The Jim Beam bottom in that photo is the same as the previous photo, isn't it? A. Yes. Q. Can I take you now to page 431, the next one over. It shows what look to be two beer bottles; correct? A. Yes. Q. Can I take you over the page to page 432, the next one over. A. Yes. Q. That's the same two bottles, isn't it? A. No. Q. They are the same‑‑ A. I never touched the bottles or the cans. Q. You've moved the bottles and‑‑ A. No, I haven't. Q. And taken the photo from a different angle, haven't you? A. No. Q. Just let me finish the question. You moved the bottles; correct? A. I never touched them. Q. And you took the photo from a different angle; correct? A. No.
12. After this exchange, the transcript further records the First Respondent being taken again to photographs behind Tab 16 of the affidavit and it being again put to him that he had counted some of the bottles more than once to reach his asserted number of 13 bottles (Transcript, 19 March 2019, page 181, lines 44 to 49 and page 182, lines 1 to 25). At this point the First Respondent was asked if he had taken multiple photographs of the same bottles, to which he answered that, yes, he had (Transcript, 19 March 2019, page 182, lines 27 to 28) set out below: Q. Did you take multiple photos of the same bottles? A. I took some double photos on some, yes.
13. The First Respondent was then re-examined by his Counsel who requestioned him on the bottle matter (Transcript, 20 March 2019, page 214, lines 10 to 19) set out below: Q. You were asked some questions yesterday about the alcohol bottles that you found on claim 56861. Do you remember that? A. Yes. Q. There were questions put to you as to the number of bottles, and you had said it was 13 bottles? A. Yes. Q. What was the basis for that figure of 13? A. That was a count that I did above and below ground.
14. On 22 March 2019, during submissions for the First Respondent, I enquired from Mr Stretton what, if any, should be the consequences if I was to conclude with respect to the alcohol bottles that the First Respondent was not a witness of truth. Mr Stretton responded that if I was not satisfied that the First Respondent found them there, underground in the mine, then that part of the alleged breaches would fall away (Transcript, 22 March 2019, page 326, lines 27 to 34): HIS HONOUR: What do you say should be the consequence, if any, for the remainder of matters, if I was to conclude with respect to the alcohol bottles that Mr Hutchinson was not a witness of truth? STRETTON: If your Honour weren't persuaded that the alcohol bottles were there or if your Honour thought that if your Honour were not satisfied that Mr Hutchinson found them there, underground in the mine, then that part of the alleged breaches would fall away.
15. Further, I told Mr Stretton I was putting him on notice that it was open to me to conclude that the First Respondent deliberately moved the bottles between the two photographs (Owen Hutchison Affidavit of 26 September 2018, Annexure F, folios 435 and 436; also see Annexures F and G to this judgment). I said (Transcript, 22 March 2019, page 327, line 50 and page 328, lines 1 to 4): HIS HONOUR: I'm not suggesting that they're duplicates. I'm suggesting that they're the same bottles at the same location, and that one of the bottles has been moved between photographs. I think that that is a conclusion open to me to draw and I'm simply putting you on notice of that, but it would be procedurally unfair if I did not do so.
16. Mr Stretton's response appears below (Transcript, 22 March 2019, page 328, lines 5 to 10): I understand your Honour. In the event that credibility is found to be lacking in relation to the bottles, in terms of the consequences of that, your Honour would then have to weigh Mr Hutchison's evidence against the surrounding circumstances to see if there's external corroboration, as it were, or if what he alleges is otherwise inherently plausible, which I will submit that it is.
17. It has been necessary to set out the above elements of the evidence because, in my view, the evidence of the First Respondent in this part of the proceedings was dishonest and untruthful. State of NSW v Hunt (2014) 86 NSWLR 226 emphasised the rule in Browne v Dunn (1893) 6 R 67, stating that two conditions needed to be satisfied before a finding of untruth could be made: first, reasons given for concluding that the truth had not been told; secondly, the witness must have been given the opportunity to answer the criticism (at [32]).
18. My reason for finding the First Respondent's evidence untruthful on this topic is that his written and oral evidence goes against the evidence of the relevant photographs provided by the First Respondent that are described above and provided behind Tab 16 of his September 2018 affidavit.
19. This, coupled with the First Respondent's demeanour during his cross‑examination during this topic, for example the First Respondent responding to a question about the bottles, "I never touched the bottles or cans", before this was even put to him when taken to the photographs of the bottles satisfies me that his evidence was untruthful. I am mindful of the comments of the High Court in Fox v Percy (2003) 214 CLR 118, at [31], observing the following: Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical (some citations omitted).
20. However, as said by Sackville J in Seven Network Limited v News Limited [2007] FCA 1062 at [373]: The present judgment follows a trial at which a great deal of evidence was given by many witnesses. It is not an appellate judgment. Nonetheless, the observations in Fox v Percy are pertinent to the fact-finding process a trial judge is required to undertake. It is not inconsistent with those observations to observe that the importance of 'demeanour' as an indicator of the reliability of a witness may vary according to the circumstances. It may be quite inappropriate, to take an example not relevant to this case, to regard an indigenous person's apparent unwillingness to make eye contact and hesitancy in answering questions as demonstrating untruthfulness. But if a confident and articulate witness becomes hesitant and defensive when confronted with documentary evidence apparently at odds with his or her own account of events, the witness' hesitancy might well suggest a lack of candour: see McLellan, at 662.
21. Referring to the second condition in State of NSW v Hunt, for me to be satisfied to find evidence was untruthful, the proposition was put to the First Respondent that he had moved the bottles and he was given the opportunity to respond to this.
22. Therefore, I am satisfied that I should conclude from the evidence before me, that the First Respondent, at the very least, deliberately moved the XXXX Gold bottles when he took the pictures of them, so it appeared that more bottles were down the mine than there actually were. It is not necessary for me to conclude that the First Respondent had deliberately placed the bottles in/on Claim 1. This was not put to him and, for present purposes of addressing questions of the reliability of the First Respondent., I need not make such a finding
23. On the topic of alcohol bottles present on Claim 1 and whether he had consumed alcohol on Claim 1, the Applicant's evidence should therefore be preferred.
24. The combination of the photographic evidence and the First Respondent's oral evidence (and his demeanour while giving it) concerning the bottles in the mine cause me to conclude that this evidence was deliberately untruthful.
25. Indeed, the only valid broader conclusion concerning the First Respondent's evidence (to be drawn from his demeanour and the nature of his answers during his oral evidence, when coupled with the fact that I am satisfied he has been deliberately untruthful about alcohol bottles down the mine on Claim 1), is that I cannot confidently give any weight to his evidence, absent independent and verifiable supporting documentary or other independent oral evidence.

Introduction

1. The proposition advanced by Ms Ashworth on behalf of the Applicant was that the arrangement which he had entered into with the First Respondent was appropriate to be characterised as a partnership. If so characterised, Ms Ashworth submitted, various statutory provisions were therefore brought into play as governing the rights of each of the Applicant and the First Respondent as the two members of that partnership. On the other hand, as observed by the First Respondent in his evidence as earlier noted, the First Respondent regarded the arrangement between them as being akin to a share-farming arrangement.
2. Mr Stretton, whilst resisting the proposition that the arrangement between the Applicant and the First Respondent should be regarded as a partnership, adopted, by implication, the description given by the First Respondent of how I should regard the arrangement as being characterised.
3. In this context, it is appropriate to list, with a degree of precision, what each of the Applicant and the First Respondent contributed to the arrangement which existed between them, and what are the identified characteristics (both agreed and, where there is a conflict, as I have earlier determined) of the operation of the arrangement.

The Applicant's contribution

1. The Applicant provided the following equipment to the endeavour:

• the underground working equipment known as a "Super Digger";
• a blower, being the equipment necessary to circulate air through the underground workings to ensure adequate ventilation for those who were below the ground;
• a truck for the purposes of conveying material extracted from the underground workings to the location where puddling would take place to permit the separation of valuable opal material from the podge, earth and other valueless material.

1. In addition, the Applicant provided himself, or was responsible for the provision by others, of the necessary operating labour for the mining and associated activities.

The First Respondent's contribution

1. Primarily, the First Respondent provided the two Mineral Claims. However, he also provided the drilling equipment. This drilling equipment was used to sink the various wider shafts that were depicted on the sketches of the underground workings' layout prepared by the Applicant and that prepared by Mr Panich. In addition, the First Respondent's drilling equipment was also used, subsequently, for the purpose of sinking a number of narrower shafts along the boundary between Claim 1 and Martin's claim.
2. There is no suggestion that the First Respondent, either personally or through the agency of others, provided any of the physical labour for the mining activities which had been undertaken on Claim 1.
3. Finally, it is also to be inferred that, to the extent that ancillary mining equipment may have been required (for example, to hoist extracted material from the underground workings), such equipment was provided by the Applicant.

The profit-share arrangement

1. I have also set out, earlier, the 70:30 post fuel cost arrangement that it is agreed by the Applicant and the First Respondent governed the distribution of such valuable material as was able to be extracted from the mining activities undertaken on Claim 1.
2. I have, elsewhere, dealt with what I have concluded with respect to the other matters asserted by the First Respondent as having been incorporated in the arrangement with the Applicant. However, it is also to be observed that those arrangements, and the conclusions I have reached with respect to them, do not provide any assistance of significance to resolving the conundrum as to how the arrangement between the Applicant and the First Respondent is to be characterised. Indeed, even assuming that the version advanced by the First Respondent was to be accepted, those conditions are not inconsistent with a characterisation finding that the arrangement between the First Respondent and the Applicant was that of a partnership.
3. It is also to be observed that the First Respondent, effectively, left the Applicant to his own devices in undertaking the mining activities underground on Claim 1. The evidence discloses that, between the commencement of the arrangement in May 2015, and its interruption by events in August 2017, the First Respondent only went underground into the workings on Claim 1 on two occasions.
4. The first was in September 2015 (Transcript, 19 March 2019, page 172, lines 41 to 45 and Court Book, Vol 1, Affidavit af Owen Hutchison, 9 June 2018, Tab 8, folio 51[26]).
5. The second was in July 2016 (Transcript, 19 March 2019, page 173, lines 15 to 19 and Court Book, Vol 1, Affidavit of Owen Hutchison, 9 June 2018, Tab 8, folio 51[26]).
6. Finally, the arrangement between the Applicant and the First Respondent had the Applicant undertaking the primary responsibility for commercial disposition of gemstones mined from Claim 1 or from the division of those gemstones, if not sold to a dealer, for distribution between them according to the agreed formula.
7. I now turn to the parties' submissions on partnership.

Ms Ashworth's submissions on partnership

1. In her written submissions, Ms Ashworth stated that there was no factual contest as to whether there was a partnership, only a question of legal conclusion. She relied on the fact that the mining agreement between the Applicant and the First Respondent was for the carrying on of a business in common with a view to profit: at [4} of outline of closing submissions.
2. Ms Ashworth also submitted that the partnership was for a fixed venture and was a fixed-term partnership. She stated that such a partnership could not be terminated by notice unless agreed between the parties as required by s 32 of the Partnership Act 1892 (the Partnership Act) (outline of closing submissions at [7]).
3. In her oral submissions, Ms Ashworth noted that s 1(1) of the Partnership Act defines a partnership as the carrying on of a business in common, with a view to profit, and submits that these elements are met in the current circumstances (Transcript, 22 March 2019, page 278, lines 25 to 46).
4. She emphasised that, on the Applicant's case, the characterisation of the agreement between the Applicant and the First Respondent is critical to the level of the validity of termination and also relevant to the entitlement and form of relief that would flow from any breach of that arrangement (Transcript, 22 March 2019, page 288, lines 1 to 6).
5. Ms Ashworth noted s 20(1) of the Partnership Act states, in determining whether a particular asset was a partnership property, that one looks to whether or not that property was originally brought into the partnership stock and submits that in the current circumstances there is no partnership without the mining claim or claims (Transcript, 22 March 2019, page 289, lines 1 to 9).
6. She further submitted that the intention of the parties, given the nature of their agreement, the subject matter of the agreement, the admitted terms of the agreement, their arrangement, that it should be inferred that the intention of the parties objectively ascertained was the claim to form part of the partnership property (Transcript, 22 March 2019, page 289, lines 38 to 45).

Mr Stretton's submissions on partnership

1. Mr Stretton submitted that it was incorrect that the First Respondent owed fiduciary duties to the Applicant as his partner. At [105] of Respondent's Written Submissions, he set out the following reasons as demonstrating that the agreement between the parties did not create a partnership: • No evidence of any separate entity or ABN for the alleged partnership. • An absence of an agreement to share losses. • Mr Hutchison did not have a day to day managerial or administrative role in the agreement between the parties. • The business was not operated either by or on behalf of all the persons who are alleged to be partners (Mr Morris and Mr Hutchison). • The example of Mr Morris bearing all mining expenses but receiving re-imbursement for fuel only was given.
2. Mr Stretton was succinct in his oral submissions, repeating that he relied on his written submissions (Transcript, 22 March 2019, page 325, lines 34 to 39). He then disagreed with a proposition put by Ms Ashworth that s 32 of the Partnership Act meant that if I found that a partnership existed in these circumstances, it could not be terminated until the expiry of the venture for which it was created (Transcript, 22 March 2019, page 325, lines 39 to 42). Mr Stretton submitted the following (Transcript, 22 March 2019, page 325, lines 42 to 50): With respect, that is not what s 32 of the Partnership Act says; s 32 relates to the, as it were, period of natural expiry of a partnership. Nothing in that section suggests that you lost your common law or equitable rights to terminate a partnership agreement. To the contrary, s 46 of the Partnership Act, and I don't think that is in the authorities, but I refer your Honour to it, preserves common law and equitable rules in relation to partnerships, and therefore would preserve one's common law right to terminate a partnership agreement in the event of fundamental breach or serious breach of non-essential terms.
3. Regarding the property of the partnership (if there was one), in his oral submissions Mr Stretton put that (Transcript, 22 March 2019, page 326, lines 3 to 16): But if there was a partnership, then the property of the partnership was simple the opals extracted from the ground at an operational level, and certainly not the claim itself. Owen owned 56861 before this alleged partnership began, and merely by getting Shane in to dig for opals does not mean that he is transferring beneficial interest in the claim to Shane. Similarly, if a farmer were to get somebody to plant some crops and harvest them on their land, that doesn't mean that that person is coming into share farm, thereby gains an interest in the property and could ask for it to be transferred to both of them. The Canny Gabriel case that my learned friend refers to involved the contractual term where there was an attempt to give both partners in the partnership an interest in the relevant contracts, so there was an express attempt to bring certain property, being the contractual rights, into the partnership. And that, in my submission, did not occur here.

Consideration of the nature of the arrangement

1. Resolution of these competing positions, in the final analysis, is comparatively uncomplicated.
2. Despite Ms Ashworth's valiant attempts to endeavour to characterise the nature of the arrangement between the Applicant and the First Respondent as a partnership, I am unable to accept that I should conclude that this was a correct characterisation of their relationship. In addition to my accepting the technical submissions made by Mr Stretton on this point, of fundamental importance is the fact that neither of the parties considered that they had or had intended to enter into a partnership.
3. Although the Applicant said, in his affidavit of 9 June 2018 at [3], that he regarded the arrangement with the First Respondent as a joint venture partnership, these words, as used by the Applicant, are not evidence of the legal nature of the relationship and the other factual evidence is, in fact, to the contrary.
4. I have earlier set out the First Respondent's evidence on this point. He clearly did not regard the arrangement as a partnership and never intended it to be characterised as one.
5. The Applicant was cross-examined at length by Mr Stretton across a range of topics. One of his answers, obviously honestly and conscientiously given, revealed how the Applicant considered the arrangement that he had had with the First Respondent (Transcript, 18 March 2019, page 92, lines 34 to 36): Q. And as things currently stand, you don't want to work with him anymore, do you? A. I didn't work with him; I worked for him.
6. The Applicant also clearly did not regard the arrangement as a partnership and never intended it to be characterised as one.
7. In circumstances where both the First Respondent and the Applicant have a broadly similar, common understanding of the nature of their relationship and where it would require making significant semantic and legal assumptions, contrary to the evidence of both of them, in order to force a conclusion that there was a partnership in a legal sense, it is not appropriate to do so.

Introduction

1. I have, elsewhere, dealt in more general terms with the First Respondent's evidence. It is, however, necessary to consider the written and oral evidence of the First Respondent and Second Respondent concerning the transfer of Claim 2 from the First Respondent to the Second Respondent.
2. First, the official departmental records (Exhibit G) disclose that the transfer of ownership of Claim 2 was effected on 4 August 2017, with this date being the date recorded for its occurrence at [8] to [11] of the Second Respondent's affidavit.
3. The First Respondent and Second Respondent also gave different evidence about the circumstances of the transfer arrangement for Claim 2 being reached.

The First Respondent's evidence

1. The First Respondent's various recollections of when the transfer of title to Claim 2 took place are ones of considerable imprecision. First, his affidavit said, at [3]: I also held claim 56862 until around October 2017, when I sold it to Justin Hawkins.
2. He was closely questioned on this topic by Ms Ashworth, with the exchange extending over several pages of the transcript. To understand how this has contributed to my broader conclusion about the unreliability of the First Respondent's memories of relevant matters, it is (unfortunately) necessary to reproduce the entirety of this element of his cross-examination (Transcript, 19 March 2019, pages 154, line 6 to page 164, line 32): Q. You and Mr Hawkins are mates? A. I've known Justin for quite a while, yes. Q. Would you consider him a friend? A. Yes. Q. Over the years that you've known Mr Hawkins, you've chatted to him about opal mining? A. Yes. Q. Mr Hawkins knew that Mr Morris was working on 56861? A. Yes. Q. You discussed with him the issues you considered had arisen? A. No. Q. With Mr Morris's mining? A. No. Q. You discussed with him the problems? A. No. Q. Mr Hawkins knew, didn't he, that you'd discussed 56862 with Mr Morris? A. No. Q. But you had discussed 56862? A. No. Q. You have discussed 56862 with Mr Morris? A. No. Q. It's not what you say in your affidavit? A. Discussed it, I think, in there, I'll rephrase that. I thought you meant like mining. Q. That is what I meant. That you discussed 56862 with Mr Morris? A. Yes, yes. Q. And Mr Hawkins knew that you had discussed it, didn't he? A. No. Q. Mr Hawkins knew you had a couple of claims, correct? A. Yes. Q. He knew that you were working on those claims, correct? A. No, I was working my son's. Q. You knew that Mr Morris was working on the claim? A. Yes. Q. Mr Hawkins knew, didn't he, when you transferred 56862 to him, that Mr Morris might have been going to work 56862 for you? A. No. Q. You transferred 56862 to Mr Hawkins on 4 August 2017. Correct? A. Yes. Q. Why does your affidavit say October 2017? A. That's when I originally sold the claim. Q. October 2017? A. It was in, affidavit, I think it's October, yeah. It was a few months prior to it. Actually doing the paperwork. Q. So you say you sold it to Mr Hawkins on 4 August 2017? A. No. I transferred it. Q. What do you mean by "transfer," Mr Hutchinson? A. Did the paperwork at the mines department. Q. On 4 August? A. I think it's 4 August, yep. Q. You submitted it on that date? A. Yeah. I'm pretty sure I did. Q. Were you at the mines department on that day? A. Yes. Q. Was Mr Hawkins with you? A. Yes. Q. He completed the paperwork also on that day? A. Yes. Q. And at that time, had you agreed upon the price? A. No. It had already been, I'd bought it a couple of months earlier. Q. What do you mean that you bought it a couple of months earlier? A. I sold it to him, but the paperwork wasn't done. Q. You sold it to him earlier than August 2017? A. Yeah. Q. When did you sell it to him? A. It was June, July, something like that. May, June, July. I don't know. Q. You had agreed to sell it to him in June or July? A. Yeah, that's when he bought it. Q. On that occasion, had you agreed the price? A. Yes. Q. From that date, you considered it sold? A. Yes. Q. You were just to complete the paperwork? A. Yes. Q. So why in your affidavits do you say that the transfer occurred in October 2017? A. What, can you repeat that, please? Q. Why do you say in your affidavits that the transfer occurred in October 2017? A. Well, I must have made a mistake. Because it transferred on the, you've got the date when it went through the mines department. That's when it was transferred. Q. Did you not think it was important to get the date right, for the Court? A. Just, I don't know, I suppose. But I just, the date on the thing from the mines department, that's when it was transferred. Q. Did you not have access to that date when you prepared your evidence? A. I don't think I did, I don't know. Q. Can I take you to exhibit 1? A. Where's that? Q. The one furthest away from you. Tab 3, please? HIS HONOUR: It's Court book 1, it's not an exhibit. Exhibit 1 is the safety guidelines. ASHWORTH: I apologise, I thought you had marked, I apologise. HIS HONOUR: No, I said I would read all of the affidavits, and if any documents were to be separately tendered, I would give them. ASHWORTH: I do recall that. Q. Court book volume 1, please, at tab 3, page 16? A. Yes. Q. Take whatever time you need to re familiarise yourself with that document. But is that the defence that was filed on your behalf in these proceedings? A. Yes, looks that way, yeah. Q. Is the defence that's been filed on your behalf in these proceedings? A. Just let me have a look. Yes. Q. I'll take you to page 26. That's the affidavit, sorry, I'll wait for you to get there? A. Yes. Q. That's the affidavit that you affirmed, verifying this defence, isn't it? A. Yes. Q. You'll see at paragraph 2, that you said, "I believe that the allegations of fact contained in the defence are true." Correct? A. I just don't understand that. Q. In paragraph 2 of that affidavit, you affirmed that you believed that the allegations of fact contained in the defence are true, didn't you? A. The agreement to let Shane move the, do the second mine, is that what you're? Q. Are you on page 26? A. Yeah, I'm, yeah. HIS HONOUR Q. It might assist if I give you, Mr Hutchinson, you see about a third of the way down the page, there are four paragraphs, under the words, "I affirm." Do you see those, down the left hand side of the page? A. One, two, three, four. Q. Do you see it says the words, "I affirm," and indeed there are paragraphs numbered one, 2, three and four. Do you see those? A. Yes. ASHWORTH Q. Paragraph 2, number 2? A. Yeah. Q. You affirmed that your belief, that the allegations of fact contained in the defence are true, didn't you? A. Yeah. If I signed it, I did. Q. Did you read the affidavit before you affirmed it? A. Not, yeah, I did, roughly. Q. You didn't read it carefully? A. No. Q. Did you read your defence before you affirmed the affidavit? A. Same, roughly. Q. Not accurately? A. No. Q. Did you think it was important to be accurate? A. Well, I just, I give the information to the solicitor, and thought he wrote it down. I took his word on it. Q. So paragraph 2 of the defence, at page 17? A. Yes. Q. You said, or the document says, "Owen admits the allegations in paragraphs 4 and 5 of the statement of claim." That's what "SOC" stands for, but it says further, "That he was the holder of Mineral Claim MC56862 until about October 2017 when he sold his interest in it to the Second Respondent for $500." A. Yes. Q. So is it your evidence now that that date is incorrect? A. No. Q. You told the Court just a moment ago that the date that you sold it to Mr Hawkins was June or July 2017; that you filled in the paperwork and submitted it to the Mines Department on 4 August 2017. Do you recall giving that evidence? A. Yeah. I didn't I just presumed that you had this you know, I presumed nothing. Q. Well, it's not my defence, Mr Hutchinson. Do you say that this paragraph of the defence now, speaking now to the Court, giving truthful, honest evidence, that this is the incorrect date? A. No. I'll take that as being the date. October. I just didn't write it down. I just it was a it was a few months prior to doing the paperwork. I didn't think it was relevant at the time I sold the claim. Q. And you sold the claim in June or July 2017? A. I've got down here I got it in October. Q. Well, there's two issues here, Mr Hutchinson. Let's put the document to one side for the time being. A. Okay. Q. You told the Court a very short time ago that you sold the claim, 56862, to Mr Hawkins in June or July 2017. Do you recall that? A. Yes. Q. And is that correct? A. No. Q. Well, why did you say it, Mr Hutchinson, if it's not correct? A. Well, when I did this, I thought more about when it was and I checked times and dates and when carnivals and stuff like that than when I actually did it, but you just said that that was the date and I presumed that you were going on what I put in my affidavit, the date when it was first sold. Q. Well, I'm asking you now forget what I'm saying. This is your evidence. A. All right. Q. It's very important, Mr Hutchinson. A. Yep. Q. And frankly, you're giving inconsistent evidence to this Court. HIS HONOUR: No. That's a submission for later. It's not a proposition to put to the witness. ASHWORTH: I withdraw it. Q. Mr Hutchinson, when did you sell 56862 to Mr Hawkins? A. It was in October. At least I can recall it. Q. So when you told this Court less than half an hour ago it was June or July 2017, is that not true? A. Yes. Q. It's not true? A. No. Q. And when you said you filled in the paperwork at the Mines Department with Mr Hawkins on 4 August 2017, is that correct? A. Yeah. Q. What do you mean by saying that you sold the claim? Do you mean by that? A. I sold it. It's the same as you sell a motor car. Q. And the paperwork, does that come before or after the sale? A. Well, it normally comes at the same time, but you have to be at the Mines Department to transfer it. You can't do the paperwork. You just got a convenient time for him to go and do it. Q. So in this case, did the paperwork come before or after the sale? A. After. Q. So the sale occurred in October 2017; correct? A. Yeah. Q. And the paperwork was done on 4 August 2017? A. Yes. Q. Before the sale? A. No. After the sale. Q. Mr Hutchinson, 4 August 2017 is a date earlier in time than October 2017. Do you accept that? A. I think I wrote it down somewhere. Q. What are you referring to here, Mr Hutchinson? A. August. Q. What is the piece of paper to which you were just referring? A. It was a date written down on it. Q. Why have you got a date written down in your pocket? A. It was a to get the month. Q. I call for the piece of paper. HIS HONOUR: Give it to Mr Stretton, please. I take it you have no objection to Ms Ashworth having access to it? STRETTON: I don't, your Honour. HIS HONOUR: All right. Well, give it back then to Ms Ashworth. ASHWORTH: Thank you, your Honour. Your Honour, are you content for me to retain this piece of paper while I cross examine Mr Hutchinson? I'll have some questions HIS HONOUR: I certainly have no basis for having it at the present time. Thank you. If you consider it appropriate that it is a matter for you as to whether Mr Hutchinson should also have a copy of it while you are cross examining, if you wish that to occur, I will have the Court officer make a photocopy of it. ASHWORTH: I would be grateful for that, your Honour. That would seem to be the fair HIS HONOUR: In that case, unless you have any objection to this, I will also have a copy made for Mr Stretton. STRETTON: I appreciate that, your Honour. ASHWORTH Q. I just need to clarify your evidence with you, Mr Hutchinson. HIS HONOUR: Do you want to wait for the copies to come back or ASHWORTH: Okay. I'll wait. Q. I'm just going to clarify your evidence with you, Mr Hutchinson. When did you sell 56862 to the Second Respondent? A. I would have been in June/July, because it was a few months prior to actually doing the paperwork. Q. Is that because you can recall it was June or July, or because you're using some other information to A. No. Q. You can't recall if it was in June or July? A. No. It was in June/July because it was before August when I sold it to Q. So you sold it to him in June or July? A. Yeah. Q. And you did the paperwork when? A. On the day it went through the Mines Department? Q. Which was which day? A. Well, if you've got a thing, I'll have a look. I'm not real good on remembering dates like that. I don't know exactly what day I went in there, but the day it was transferred on the on the claim it was a Mineral Claim. I was there the day it was transferred. I did the paperwork. Q. So you can't recall now what the date was on which it was transferred? A. No. Q. So just returning to page 17 of the defence and paragraph 2. A. Yep. Q. When you said in that paragraph, or when it was said that you were the holder of Mineral Claim 56862 until about October 2017, when you sold your interest in it to the Second Respondent for $500, that paragraph is incorrect? A. Yes. Q. Did you give your solicitors instructions to send this document? A. What document? Q. The defence? A. What do you mean? Q. Did you give them permission to file this with the Court? A. Yes. Q. So why didn't you inform them of the error? A. I never noticed it. Q. You told them, didn't you, that it was October 2017? A. I don't recall. Q. Your affidavits also contain the same date, Mr Hutchinson, and I'll take you to them. Volume 1 of the Court book, page 252, paragraph 3. A. Yes. Q. You gave evidence that you held claim 56862 until around October 2017, and you're now saying that that is incorrect? A. Well, you I sold that claim in October you'll have to have a look at the paperwork of when it was. I would have checked the paperwork out beforehand, but I can't remember now what day it was, but if it was October the day I transferred to Justin, that's when it was. Q. Without having regard to the paperwork, can you today recall what date you held the claim until? A. I can't recall the date to what I held it to. Q. Could you recall at the time you affirmed this affidavit? A. Well, I checked out what day the claim was sold, but Q. What did you check? A. I had a look at the paperwork. I rang up Justin and asked him for the paperwork. What time what date did it get changed. Q. Because of what he told you, you wrote October 2017? A. I must have done. I don't know. I just whatever day it was. That's what I got the date. Q. Did he give you the paperwork? A. No. Q. So how did you know it was October 2017? A. He told me. Actually, no. I think the daughter in law found out when it was changed for me because she handles that for me. Q. So did Justin tell you it was 10 October 2017 or your daughter in law? A. No. Or I'm not sure. I think it was me daughter in law. Q. You don't refer, though, to your daughter in law in this paragraph, do you, Mr Hutchinson? A. It doesn't need to. Q. Well, this is your evidence. So you say it's October 2017. A. Yeah. Q. Because your daughter in law told you? A. I'm not sure whether it was me daughter in law or Justin what time it was changed? Q. Have you spoken to Justin about when the transfer occurred since that time? A. No. Q. When did you call Justin to find out when it was transferred? Approximately what month? A. I couldn't tell you. Q. Well, it was before you affirmed this affidavit? A. I don't I can't tell you. Q. Well, you've just told me that to find out this date, you think you called Justin? A. Yep. Q. And so it would had to have been before the date of this affidavit, wouldn't it? A. Yes. Q. So doing the best you can, can you recall which month it was in? A. No. Q. Have you spoken to Justin since this affidavit about what date it was transferred? A. No. Q. I take you to page 274. In paragraph 119C, when you said, "I transferred the claim 56862 to Justin Hawkins in the latter part of 2017," you were referring to October 2017, weren't you? A. That's what it was, yeah. Q. That's still your evidence? A. Yeah. Q. I just need to be clear. Is that the date that you sold it, or filled in the paperwork? A. I filled in the paperwork the day it went through the mines department. Q. Do you recall what date that was? A. No. Q. What is the relevance then, of the October 2017 date. Is that the date that you sold it to him? A. No, it was prior to it going to the mines department. Q. What happened relevant to the transfer of 56862, in October 2017? A. If that's the day I sold it, the paperwork. I'm not sure what day it went through the mines department, that's when the paperwork was done. Q. In October 2017? A. I'm not sure. I'd have to have a look at the thing. Q. So were you sure when you affirmed this affidavit? A. I was sure then, yeah. But I can't remember. Q. So your evidence today is you can't remember if it was October 2017 that you sold it? A. No. I, the day it went through there, it's October, for the mines department, that's when the paperwork was done. I sold it a couple of months prior to that. Q. When did you become aware of the date the paperwork was done? A. The day it was done. I was in the office with him, at the mines department. Q. Do you recall today what date the paperwork was done? A. No. Q. When I asked you earlier, and you pulled the piece of paper out of your pocket, you said to me, "It was done on 10 August 2017"? A. No. No, I've got the tenth out there. That was back before then. Q. So when was it done? A. I don't know. Get a copy from the mines department, it's dated. That's when you'll know it's done. Q. When you affirmed this affidavit, you had no basis whatsoever for saying that you held the claim until October 2017, did you? A. What do you mean by no basis? Q. You had no proper basis for saying this, October 2017. You did not know, at the time that you affirmed this affidavit, on what date that claim had been sold? A. I think I did, yes. Q. And it was October 2017? A. I think it was. As I said, go the mines department. I might made anything, I just, was, just, roughly.
3. During the course of the First Respondent's cross-examination, he was also asked about where this bargain was struck. He said that it arose out of a conversation that he had had with the Second Respondent at the latter's home. The transcript records the exchange in the following terms (Transcript, page 167, line 16 to page 168, line 14): Q. What discussion did you have with Mr Hawkins about selling him 56862? A. It's just a general conversation about opal mining. And he wanted to, he said, "When are you going to have a claim for us?" And I said, "Well, you've got one." And it was sold. Q. So he said, "When are you going to have a claim for us"? A. It was in, part of a general conversation. It wasn't just out of the blue. Q. Where did this conversation take place? A. Leeton. Q. Whereabouts in Leeton? A. Just around at his place. After a race meeting. Q. His place, you mean his home? A. Yes. Q. The general conversation was about opal mining? A. No, it wasn't a general conversation. It was just a conversation and it got around to opal mining. Q. He asked, "When are you going to have a claim for us," correct? A. Yes. Q. What did you say? A. "I've got one now, if you're interested." Q. You said it wasn't out of the blue, the conversation. Why was that? A. Well, we often talked about, when I went home, about opal mining. Q. No, in terms of your offer, to sell him 56862, was that the first time you discussed selling him 56862? A. Yes. Q. You just made a spontaneous decision, on that occasion, to sell it, did you? A. Yes. Q. How did the discussion proceed after that? A. In which way? Q. You said, "You've got one now." What did he say? A. He asked me, "How much?" Q. What did you say? A. "$500." Q. What did he say? A. "Sold." Something to that effect.

The Second Respondent's evidence concerning his acquisition of Claim 2

1. The relevant portion of the Second Respondent's affidavit concerning the reaching of the agreement to transfer the claim was set out in comparatively concise terms. The relevant paragraph of his affidavit read: 6 In mid-2017, Owen and I were at the speedway in Leeton. Owen turned to me and we had a conversation to the following effect Owen said: There's a claim coming up. Would you be interested in it? I said: Yeah for sure, I'll give it a crack. He said: No worries, we'll get it transferred into your name and go from there. I said: What's it worth? He said: Give me $500 for it. I said: Yeah no worries, let's give it a go.
2. As can be seen from the above recorded conversation, it was a confined one which, if truthfully recorded, could have taken place over only a minute or two. The Second Respondent's affidavit identifies, with precision, the terms of this brief conversation and the circumstances and location of its occurrence.
3. Of course, the circumstances and location of its occurrence, as recorded in the Second Respondent's affidavit, are in significant conflict with the evidence given by the First Respondent on this point. During his examination-in-chief, the Second Respondent walked back from the terms of his affidavit evidence. The transcript records (Transcript, 20 March 219, page 219, lines 40 to 47) on this point: Q. Is there something you wish to clarify? A. Yes, there is. The conversation with Owen that started at the speedway, and then continued to my house afterwards. Q. Which part of the conversation do you recall happening in each place? A. We started the conversation on the availability at the speedway, and then the conversation led to, at my house, afterwards. It was about the money side of it.
4. The Second Respondent was also cross-examined on how he had now come to the recollection of this conversation and its bifurcated location. This exchange was in the following terms (Transcript, 20 March 2019, page 220, line 1 to page 222, line 22): Q. Mr Hawkins? A. Yes. Q. Have you spoken with Martin, since lunchtime yesterday? A. No. Not about the case. Q. Have you spoken to him at all? A. Yes. Q. Where were you yesterday, when the judge asked that you leave the courtroom, for the afternoon session? A. I was downstairs. Q. Did Martin come and visit you, during that time? A. No. Q. Martin has spoken to you about your evidence since yesterday, hasn't he? A. No. Q. What caused you to change your mind regarding paragraph 6? A. That was, what happened. I read my, went through my affidavit. Q. You haven't read your affidavit since you swore it, affirmed it? A. Yes, I have. Yes. Q. That didn't jump out to you on any of those occasions? A. No. Q. Until when? A. Till, before heading down here. For the case. Q. When precisely was that? A. That would have been, a week, a week ago. Q. Did you notify your lawyers at that time you had a clarification? A. No. Q. When did you notify your lawyers, of the clarification? A. Monday. Q. Monday this week. Who did you notify? A. Jason and HIS HONOUR Q. Mr Stretton, are you talking about the barrister? A. Mr Stretton. Mr Stretton, so. ASHWORTH Q. On Monday? Is that correct, on Monday? A. What's, what's today, sorry? Q. Today is Wednesday? A. No, Tuesday. Q. When on Tuesday, Mr Hawkins? A. Tuesday afternoon. Q. When on Tuesday afternoon? A. What do you mean by? Q. What time on Tuesday afternoon? A. What time? Q. Yes? A. Would have been, after proceedings. Q. Martin's paying your legal fees in these proceedings, isn't he? A. Yes. Q. You changed paragraph 6 of your affidavit because you were told by Mr Hutchinson that that is the evidence HIS HONOUR: You need to clarify which Mr Hutchinson. ASHWORTH: Yes. I might just use first names, it might be easier. Q. You changed paragraph 6 of your affidavit because Martin told you that Owen gave evidence yesterday, that this conversation took place at your house. Isn't that right? STRETTON: I object to that question. (Discussion of and ruling on the objection) HIS HONOUR: I should explain, Mr Hawkins. I have overruled the objection, and I have asked Ms Ashworth to put the question to you again. ASHWORTH Q. You changed paragraph 6 of your affidavit because Martin told you that Owen gave evidence that that conversation occurred at your house. Didn't you? A. No.

Consideration

1. Given the evidence of Ms Messenger, later dealt with, concerning the attempt by Martin to give his father "guidance" concerning his oral evidence, I am unable to accept that the Second Respondent's clarification concerning the conversation with the First Respondent about the "deal" to transfer Claim 2 was not one manufactured overnight in order to endeavour to reconcile the contradiction between the Second Respondent's affidavit evidence and the oral evidence given by the First Respondent. Given that the Second Respondent's initial account of the exchange set out its brevity and completeness, the implausibility of a recollected conversation comprising some 48 or so words on a narrow and focused topic being split over two different locations in the fashion described by the Second Respondent in his "clarification" is so inherently improbable as to require rejection.
2. These lengthy extracts from the oral evidence given by the First Respondent and the Second Respondent are included merely to explain why I have concluded that the First Respondent's evidence was given less than truthfully and was not to be relied upon absent independent verification. The accounts given by the First Respondent and the Second Respondent are inherently implausible given the tensions between their two stories and, as can be seen from a reading of them, what I conclude is the obvious attempt to retrospectively "strap-up" their accounts into some form of coherent fit (an attempt which has failed).
3. Second, given the fact that in excess of $800,000 of opal had already been recovered from Claim 1, it is inherently implausible that the First Respondent would have agreed to transfer that claim to the Second Respondent for the paltry sum of $500.
4. Finally, I am satisfied that the assertion by the First Respondent's lawyers, in the letter on his behalf to the Applicant's solicitor on 7 March 2018 (the letter asserting in terms that the First Respondent was the holder of Claims 1 and 2 - see Court Book, Vol 2, folio 456) is clearly reflective of the First Respondent's true belief concerning the ownership of Claim 2.
5. However, although it has been necessary to set these matters out at some considerable length, this is solely for the purpose of reinforcing the conclusion I have earlier stated concerning the reliability (or, more correctly, unreliability) of the First Respondent's evidence. As there is no cross-claim between the First Respondent and the Second Respondent in these proceedings, there is no necessity to contemplate what relief, if any, might have been appropriate had there been such a cross-claim.

Was Claim 2 part of the agreement?

1. As noted in the introduction to this decision, two adjacent Mineral Claims fall within the ambit of the dispute between the Applicant and the First Respondent. To this point in my determination, that with which I have been dealing has either concerned the broad framework of the arrangement between the Applicant or the First Respondent or has dealt with matters arising out of or in connection with the mining activities which have been undertaken on Claim 1.
2. There is, however, a separate dispute between the Applicant and the First Respondent as to whether or not the arrangement between them extended to Claim 2 with, if it did so extend, the expectation that Claim 2 would be mined on the same basis as had applied to Claim 1, with the mining of Claim 2 commencing after the exhaustion of appropriate mining activity on Claim 1.
3. The position advanced on behalf of the Applicant was that such a specific and committed arrangement had been incorporated in the agreement that had been reached between them in May 2015.
4. On the other hand, the position advanced on behalf of the First Respondent was a significantly qualified one. The First Respondent acknowledged that there was, in contemplation, the possibility that the arrangement reached for the mining of Claim 1 might, in the fullness of time, be extended to Claim 2 but that there was no commitment, on his part, that the arrangement would be so extended. It is the First Respondent's position that the possibility of the Applicant extending his mining activities onto Claim 2 was contingent on the Applicant having carried out the mining activities on Claim 1 to the First Respondent's satisfaction and that, if the First Respondent was so satisfied and determined that he wished to extend the arrangement, what would then amount to a fresh arrangement (albeit on similar terms to the Claim 1 arrangement, it is to be inferred) would be entered into by the two of them for the purposes of mining Claim 2.
5. It seems to me, in my consideration of the First Respondent's view, it is unnecessary to distinguish between an agreement to extend the Claim 1 arrangement and the possibility that there would be a separate, freestanding as it were, new arrangement between them for the purposes of mining Claim 2. The critical difference, as far as the First Respondent's position is concerned, is that there was no incorporation in the Claim 1 arrangement of any entitlement to mine Claim 2 post the exhaustion of mining activities on Claim 1.
6. The position advanced by the Applicant concerning Claim 2 is that the arrangement he had entered into with the First Respondent was one which expressly encompassed not only Claim 1 but also Claim 2. His affidavit evidence on this point was in the following terms (Affidavit, 2 November 2018): 10) Around a week or two later Mr Hutchison contacted me and, according to his drilling results, offered me a better deal. We had a conversation to the following effect: He said - Would you be interested in working two claims for me? I said - OK. What's the deal? He said - With better drilling results (than Bill O'Brien's claim) I'll give you two claims. Would you give me 30% after fuel expenses? I said - Yeah, I would be interested in working the claims for you. 11) I say that the deal proposed by Mr Hutchison was better because even though I was to receive a lesser share of proceeds than my deal with Bull, it was for two claims, and Mr Hutchison said he had better drilling results. We visited the site of MC 56861 MC 56862 (the Claims) and Mr Hutchison gave me a rundown of his drilling results.
7. He was questioned by Mr Stretton on this point (Transcript, 18 March 2019, page 50, line 20 to page 51, line 10): Q. And you say, do you, that in May 2015 Owen offered you two claims to work? A. Yes. Q. In other words, you say he offered you a deal that would take four years to complete? A. Yes. Q. Well, you're saying then, are you, that Owen, whom you'd never worked with before and who couldn't know whether this business deal was going to work out, just offered you a deal whose minimum terms was going to be four years? A. Yes. Q. Do you agree that that is entirely implausible? A. No. Q. What Owen actually offered you is, you do one claim and then, if you did the right thing on that one, he'd give you another one. Correct? A. No. Q. I suggest you thought you would do the right thing, so you naturally thought you'd end up doing two claims. What do you say to that? A. No. Q. You thought you'd end up doing two claims and that's why you told Bill O'Brien that you'd been offered two claims. Is that right? A. No. Q. Did you say to another friend of yours, Charles Carpenter, "I have a couple of claims"? A. Yes. Q. By that did you mean 56861 and 56862? A. Yes. Q. Of course, they were Owen's claims, not yours, weren't they? A. Yes. Q. You just thought of them as your claims, did you? A. Well, once you do a deal, yes.
8. As with the oral evidence given by the First Respondent, I carefully observed the Applicant during his giving of his oral evidence. Whilst I accept that demeanour in the witness box is an imprecise and uncertain indicator of truthfulness, the Applicant (unlike the First Respondent) gave his evidence clearly and with confidence. He did not shift in his seat whilst giving that evidence. There was nothing in his demeanour or manner of giving his evidence that gave rise to any significant uncertainty in my mind as to the truthfulness of what he was saying (contrary to the position with respect to the evidence of the First Respondent elsewhere described in several places). As a consequence, in this area of dispute, I accept the Applicant's evidence that the arrangement he had with the First Respondent, from its commencement, encompassed mining of both Claim 1 and Claim 2. There is nothing inherently implausible in my reaching this conclusion.

Introduction

1. During the course of his mining on Claim 1, the Applicant crossed the boundary and mined into Martin's claim. The position taken by the First Respondent was that the Applicant had mined into Martin's claim without having any authority to do so. The Applicant's position was that the First Respondent had authorised the Applicant to do so and was in a position to give that authorisation.

The evidence of the Applicant and the First Respondent

1. The Applicant, in his 9 June 2018 affidavit, describes, at [25] and [26], occasions when the First Respondent visited him on Claim 1. These visits were in September 2015 and July 2016. At [27], the Applicant said: On both these occasions I was close to or slightly encroaching on his son's claim, which is adjacent to Claim 56861. On both occasions, the defendant told me not to worry. If I had encroached on his son's claim I did not intend to, and at no time did I encroach any further than I had disclosed to the defendant.
2. In his affidavit of 26 September 2018, the First Respondent dealt with this matter in several places. First, he said, at [38]: In 2016 I was digging in my son Martin's claim 56735 which shares a boundary with the northern edge of claim 56861. I had about 6 feet to go before the boundary. I was measuring the distance with a protractor and tape measure, marking out my route, using a string and pegs. I used the shaft I went down as a point of reference. I hit a drive dug by Shane coming from claim 56861. Shane's digger was on the other side when I broke through, as though it was digging towards me. I have since drilled test holes along the boundary and confirm that Shane's drive does indeed cross the boundary.
3. The Applicant's response, in his affidavit of 2 November 2018, at 28, was in the following terms: In 2016, I was working in the area highlighted on my mine plan (Annexure C) in orange not in yellow, so Mr Hutchison could not have broken through to find my digger.
4. In [43] of this affidavit, the First Respondent dealt with a number of topics concerning his inspection of Claim 1 in late May 2017. Relevant to the topic of the Applicant mining into Martin's claim, the First Respondent said: 43. On 23 May 2017, I returned to the claim (56861). I inspected it above and underground and found: … e. Shane had dug across the boundary with claim 56735 (my son Martin's claim) in a few places. I had taken measurements using tape measures and string lines and pegs, using shafts as a reference point.
5. The Applicant relied on his response to [38] set out above as his response to 43 of this affidavit from the First Respondent.
6. The First Respondent deposed as to a conversation he had with the Applicant on this topic, amongst others, saying: 52. I spoke to Shane on 6 August 2017. We had a conversation to this effect: I said: You've put the new three foot hole down, and you haven't fixed any of the other safety issues. You've pushed these trees down and I'm going to get in shit with the Mining Department for that. He said: I put that hole down because you're going on about me going into Martin's claim. Anyway, I'm going to move my gear out and go down to my claim down below (58738). I'll start there, cut into your claim next to it (56862) and join it all up in this one (56861). I said: No, that was not part of the deal. The deal was that you would do one and if you were good I'd let you do another. I don't want any claims joined up. It becomes too messy with who owns the opal when they join up. He said: I'm just telling you that's what I'm going to do. I said: I reckon you've been going over the boundary too. You've been over once, I reckon you've gone over a couple more times. So Martin gets 100% of that. He said: 100% of nothing is nothing, and a compass doesn't lie. I said: Well, a drill doesn't lie either. 53. I decided to see for myself whether he had actually dug into Martin's claim. I returned to the claim on 7 August 2017. I was about to go down the hole on my son Martin's claim (56735). I saw Shane arrive at about 10 or 11am. … 54. I drilled two 9 inch holes along the boundary with Martin's claim. Each boundary has corner pegs. I drilled them along the straight line, within a few centimetres, along the boundary line. When I did, I saw that the dirt fell into the hole instead of piling up next to it, and I could see a drive down underneath the holes. When I went down below in his drives looking up, I could see sunlight coming in the holes. This is how I knew that Shane had broken the boundary. On 8 September 2018 I measured how far the drives were. They were 5.2 metres in one part and 3 metres in another. 55. On 9 August 2017, I went to claim 56861 and inspected underground. … I noticed that he had dug a drive in a northerly direction, directly into my son's claim (56735) and I saw three other areas where he had cut into my son's claim. I knew he had because I could see daylight through the test holes that I dug on my son's side.
7. In response to the Applicant's affidavit of 9 June 2018, the First Respondent said, relevant to the question of the Applicant mining into Martin's claim: 98. In relation to paragraph 27 (which alleges I told Shane not to worry about encroaching on Martin's claim), I never told Shane not to worry about encroaching onto Martin's claim. I was very mindful of the boundaries and intent on making sure we didn't mix the mines. It's too complex dividing opals or share of money when you do that. I was trying to avoid it.
8. With respect to the conversation set out by the First Respondent immediately above in [52], the Applicant denied, at [36] of his affidavit of 2 November 2018 that this conversation occurred.
9. With respect to the assertion by the First Respondent in [53] above, the Applicant said, in his affidavit of 2 November 2018, at [38]: I deny the contents of paragraph 53. I did not meet Mr Hutchison at any time on 7 August 2017 on any of the claims mentioned. I had travelled to the Gold Coast Opal Show with Martin Maxwell on 3 August 2017. The opal show was on 3 and 4 August 2017. Marty and I travelled home on 6 August 2017. I stayed at home on 7 August 2017 and went to MC 56861 on 8 August, as shown in my logbook, being Annexure B to my affidavit of 9 June 2018.
10. The logbook was reproduced at folios 59 to 78 of the Court Book. The pages are noted by date and, at folio 75, entries are made for attendance at Claim 1 on 2 and 3 August 2017. Folio 76 shows the activities undertaken by the Applicant on those days. The next entry, on folio 77, records his visit to Claim 1 on 8 August 2017. There is no entry at all on 7 August 2017, let alone for his attendance at Claim 1. There is no reason to doubt the accuracy of these records and the Applicant was not questioned on them during the course of his cross-examination. As a consequence, consistent with the broader view I have taken concerning the lack of reliability of the First Respondent's evidence, I am unable to accept his evidence concerning seeing the Applicant on Claim 1 on 7 August 2017.
11. In this context, it is also to be observed that I accept the uncontradicted evidence of the Applicant concerning his travel arrangements to and from the Gold Coast Opal Show and, as a consequence, I accept his denial of the conversation that the First Respondent alleges he had with the Applicant as set out in [52] quoted from his affidavit of 26 September 2018 above.
12. The First Respondent deposed a further affidavit dated 6 December 2018. In that affidavit, relevant to this topic, he addressed the relevant element in the Applicant's affidavit of 2 November 2018. The First Respondent addressed mining into Martin's claim at two points in this affidavit. First, he said: In relation to paragraph 28, where Shane says that his digger was in the yellow section of his plan, that assertion is not true. I stand by what I said in paragraph 38 of my earlier affidavit. I distinctly recall breaking through where the drive encroaches into Martin's claim north of shaft B on his plan and his digger being right there.
13. The First Respondent also said, on this question: 21. I also took a number of photos showing where Shane dug drives directly into Martin's claim (claim 56735). I have identified these intersections as E1 and E2 on the plan at Annexure B. The first photo shows E1. There is a line marked on the ceiling which Shane drew, … Then, on the roof further away, you can see the 9 inch hole I drilled at the boundary, and the dirt that fell into the mine when I did. Then you can see where I broke through from Martin's claim. The second photo shows E2. It shows a post put down the 9 inch hole I drilled on the boundary. It shows where I broke through from Martin's claim, and then me measuring the extent of the encroachment with a tape. You can see that Shane had excavated nearly 4m directly into Martin's claim. The third photo shows the encroachment at ET from the front, including a measurement of the width of it. Copies of these photos are annexed to this affidavit and marked "G" (pages 56-58).
14. The second photograph referred to above (identified as being at location E2) is reproduced as Annexure H. The plan marking locations E1, E2 and E3 is reproduced as Annexure I.
15. The First Respondent was cross-examined on this topic. His evidence was in the following terms (Transcript, 20 March 2019, page 202, lines 7 to 35): Q. On that occasion, Mr Morris was working close to the boundary with your son's claim, correct? A. He, is that when he broke through into my son's claim? Q. That's when you say he broke through, yes? A. Well, you go and have a look, and you'll know I'm right. Q. Can you just focus on my questions, please? A. Yes. Q. On that occasion, you were underground, in 2015. Mr Morris was close to the boundary of your son's claim. Correct? A. Yes. Q. You told him not to worry about the boundary, didn't you? A. No Q. You told him to just keep going, didn't you? A. No. Q. Times were good, weren't they? A. Yes. Q. You wanted to maximise the amount of opal you extracted, didn't you? A. Not out of my son's claim. Q. So you told him to just keep going, didn't you? A. No.

Mr Lohse's evidence

1. It was Mr Lohse's evidence, concerning the mining across the boundary into Martin's claim, that he had worked with the Applicant at the commencement of his mining of Claim 1. In his affidavit of 31 October 2018, Mr Lohse said, at [3]: I worked on MC 56861 four about 4 weeks and Owen was also there at times. There was plenty of talking. We were talking about which way we would mine because we were finding good opal. Owen said words to the effect, "Don't worry too much about which way to go. We can just keep mining into the next claim."

Conclusion on mining into Martin's claim

1. There is no reason to question the accuracy of Mr Lohse's evidence as set out above from his affidavit.
2. As earlier noted, Mr Lohse's gave oral evidence via video-link from Walgett Court House. This evidence was given on 20 March 2019. He gave short evidence-in-chief and was then cross-examined by Mr Stretton. His evidence is recorded in the transcript of that day at page 244, line 1 to page 252, line 14. The only element of his cross-examination by Mr Stretton relevant to mining across claim boundaries was in the following terms (Transcript, 20 March 2019, page 250, line 43 to page 251, line 14): Q. When Owen was showing you these test holes, he also said something like, "Shane can work out where he wants to go," didn't he? A. Yes. Q. In other words, he said something to the effect of, Shane can work out where within this claim he wants to go, didn't he? A. Yeah, a 50 by 50 metres is a big area to go. So, yes. Q. He didn't say that you could mine into the next claim, did he? A. Repeat the question, sorry? Q. He didn't say anything about it being okay to mine into the next claim, did he? A. He just said we'll talk to, that when we get, we'll talk about that when we get to it. Q. Which one was the next claim? A. Do you want a claim number, or do you? I don't have a claim number, sorry. Q. Do you know the direction, north, south, east or west, to 56861? A. No, not off the top of my head, no.
3. This oral evidence is consistent with the extract from his affidavit and is not inconsistent with the evidence given by the Applicant that the First Respondent had told him not to worry about mining across the boundary into Martin's claim. For reasons elsewhere explained, the Applicant's evidence is to be preferred over that of the First Respondent. In reaching this conclusion on this point, I observe that Mr Lohse's evidence, although not precise (understandable given the effluxion of time), is not inconsistent with the evidence of the Applicant, but is inconsistent with the evidence of the First Respondent.

Propping and safety in the mine workings on Claim 1

Introduction

1. "Propping" is the practice where, in underground mines such as that established by the Applicant on Claim 1, wooden posts are installed, at appropriate locations, in order to guard against the risk of failure of the roofing material above the various passages or open spaces in the mine workings. This is discussed in the Safety Guidelines. For the majority of the time during which the Applicant mined underground on Claim 1, he did not undertake any propping of his workings. The broad issue of propping and its appropriateness or necessity for Claim 1 was an aspect in dispute in these proceedings. The First Respondent relies on the absence or subsequent inadequacy of propping undertaken by the Applicant as a basis for the First Respondent's determination of his arrangement with the Applicant. To understand this properly, it is necessary to address a number of matters. These are: 1. What is said in the Safety Guidelines; 2. The expert mining engineering evidence; 3. The Applicant's activities on Claim 1 and his affidavit and cross‑examination evidence concerning propping; 4. Mr Lohse's propping evidence; 5. The First Respondent's knowledge of those activities and what is to be drawn from that; 6. Prohibition notices given by the regulator; 7. How the prohibition notices came to be issued and when they were drawn to the Applicant's attention; and 8. How any or all of this should be seen as providing a basis for the First Respondent's termination of the arrangement with the Applicant.

The Safety Guidelines

1. As earlier noted, the Safety Guidelines discuss matters relevant to propping at a number of points within the document. Before turning to consider that material in detail, it is appropriate to note that this document is described, on the first page of Exhibit 1, as being: Produced and compiled by the Mine Safety Operations Branch of NSW Department of Industry and Investment in cooperation with the Lightning Ridge Miners Association and the Grawin Glengarry Shipyard Miners Association.
2. It is also described as being adapted from the Lightning Ridge Miners Handbook. The edition which is in evidence is dated 2010 and is the fourth edition of the guidelines.
3. During the course of the evidence, I was taken to a number of references in the Safety Guidelines concerning underground safety measures (including safety measures for the access shaft to reach the underground workings). Although all of the material to which I was taken does not relate, precisely, to matters that could technically be described as being "propping matters", they all went to questions of underground safety.
4. The primary matters to which I was taken, and to which I now need to refer, were contained in three chapters of the Safety Guidelines. These were: 1. Chapter 7 Roof Failure; 2. Chapter 8 Ground Support; and 3. Chapter 9 Room & Pillar Design.
5. I was also taken to other matters in Chapter 6 Mining Practice, dealing with safety measures for the upper portion of access shafts and for the necessity to have a protective shaft pillar at the foot of the access shaft in order to ensure support for that shaft. It is not necessary, for present purposes, to address these matters in detail. It is sufficient to note that the Applicant had not retained a shaft pillar at the foot of the access shaft to the underground workings on Claim 1. This absence can be seen on the Underground Workings Plan that is at Annexure A.

Chapter 7 Roof Failure

1. The first page of Chapter 7 of the Safety Guidelines commences by saying: The primary objective of ground support is to prevent or control roof collapse. From the point of view of safety, the roof is the most critical component, although walls, and to a lesser extent the floor, must also be considered. Ground conditions vary between opal fields and claims, due to different stress distributions and rock types. It is essential when reading Chapters 7, 8 and 9 to understand that all unsupported span distances quoted should be treated as maximum distances and depending on a claim's particular ground conditions, could be reduced.
2. The Safety Guidelines set out, at 7.4, common factors contributing to roof failure, factors derived from case studies concerning known rock falls. This element describes one of those factors as being: Miners making assumptions that the roof was "good" because it looked stable. This was then used as "justification" for why secondary support, such as props, would not be required.

Chapter 8 Ground Support

1. Chapter 8 commences by noting that primary support is provided by the geologic structure, itself, of any claim being mined. The chapter then continues to deal with secondary support, support that is described as being "required to support the mine roof between pillars". Roof props are noted as being one of the two practical methods of secondary support for mining on Mineral Claims in the Lightning Ridge region. The Safety Guidelines note that drives (underground passages) greater than 1.8 metres wide will require secondary support.
2. The Safety Guidelines then note that: As of August 2010, no opal miner has been killed in a heavily propped or rock bolted mine on the Lightning Ridge opal fields. However, more than 10 people of died, and many others have received permanent injuries, after rock falls in opal mines where there was no, or poor, secondary support.
3. The Safety Guidelines then continue, in 8.1 Ground Support With Props, to lay out a technical description (commencing on page 74 of the guidelines and concluding at page 78 of the guidelines) to assist miners undertake propping in a fashion consistent with the guidelines. It is not necessary to repeat any of that detail.

Chapter 9 Room & Pillar Design

1. This chapter commences by noting that pillars are used to provide primary support while props and rock bolts only provide secondary support.
2. The Safety Guidelines then note that: The size of rooms in relation to the pillar sizes is critical from an economical and ground support point of view. The relationship determines amount of ground that can be safely extracted and the amount of secondary support required.
3. It is unnecessary to set out any of the technical material contained in this chapter. It is sufficient to note that a graph (Figure 9.1) is provided to permit a miner to determine the theoretical span in metres between pillars in underground rooms, with this span being dependent on the depth below the surface of the underground workings in that mine.

Mr Chapula's written evidence

1. Mr Chapula, in his written report (Exhibit 3), set out, under the heading "Geotechnical Characterisation", a number of technical aspects that are not necessary to detail. However, he did summarise his findings in this regard (on page 4) in the following terms: … I found that the rock mass required secondary support to make the excavations stable. Without secondary support the excavation was at risk of collapse. The consequence of the collapse might be injury personal (sic) and or damage to machinery. From the inspection, I found that the most likely failure mechanism was shear failure through Joint number two and gravity fall. The failure mechanisms I identified were based on analysis from the site visit and not previous incidents from the mine. There was no data provided on the rock mass failure characteristics from previous incidents. The clayey nature of the rock mass implies that it gets very weak during rainy periods and definitely requires secondary support to control the risk of collapse.
2. Mr Chapula also commented (Exhibit 3, page 7) that: There were areas during inspection that I observed to require secondary support before any activities can be done in the areas. The rock mass assessment shown above using RMR also confirmed the requirement for secondary support. The horizontal joints set, #3 from table 1, was found to be the most unstable that would cause gravity falls because its average spacing was 0.88m and it was continuous (larger than the imprint of the excavation). The areas that would require secondary support before any activities can be done are encircled in red rectangles in figure 6 below. The secondary support in form of timber props/poles was assessed to be adequate since the identified failure mechanisms were due to gravity and shear failure through joints. In the case where failure would be the rock mass disintegrating into smaller chunks and failing by gravity, then wire mesh with the poles would be required to control the failure. Depending on site knowledge of the modes of failure, the site might decide to either use wire mesh if it has experienced any failure by disintegration of rock mass or not use wire mesh if no such failure had been experience (sic). In this report, I assumed that the timber poles would be adequate for secondary support. The assumption was based on the ground conditions that I encountered at the time of inspection.
3. His Figure 6 is reproduced as Annexure B to this judgment. The areas which he describes as having been marked in red are obvious in the annexure but, as Exhibit 3 is in black-and-white, the enclosing markings are not in colour.

Mr Chapula's reply report

1. Mr Chapula provided a report in reply to that prepared by Mr Panich (it became Exhibit 4). It is unnecessary to set out Mr Chapula's response to matters of detail contained in Mr Panich's primary report. However, it is appropriate to set out the matters with which Mr Chapula deals, which are in response to affidavit evidence given by the Applicant. In this regard, Mr Chapula wrote: I have been asked to respond to paragraph 47 and 49 of Mr Morris's affidavit of 9 June 2018. In paragraph 47, Mr Morris wrote that he did not install the extra required support props because he did not want to prop himself in. In my opinion this was an unsafe act. The props were supposed to be installed before Mr Morris proceeded into the mining area. In paragraph 49, Mr Morris wrote that the reason for he's (sic) delay in installation of the props was due to the risk of injuring the operator or knocking out the props if installed too early. In my opinion, Mr Morris was supposed to find ways of making the working place safe before allowing any personnel in the mine. The props or any other means of support was (sic) supposed to have been installed before proceeding with mining. The biggest risk of failure is during mining therefore support should have been installed prior to mining. I have also been asked to respond paragraph 24(a) to (e) of Mr Morris's affidavit of 28 August 2018 in relation to mining shaft in Mineral Claim No 56861. In paragraph (b), Mr Morris stated that there was a solid wall within one metre of the shaft. The room around the shaft was necessary to install a Super Digger underground. During my inspection of the site, I found that there was a wall close to the shaft 1m to 2m away (I did not take any measurements) and indeed the roof supporting the immediate shaft was stable. There was one timber prop close to the shaft entrance. In paragraph (d) Mr Morris stated that installation of support was to be done as he belled out of the area. In my opinion, this was unsafe. If Mr Morris observed that there was need for further support of the area, the support was supposed to be installed immediately before any works could be done. If this could have restricted machine capacity, then other support means should have been used.

The experts' joint expert report

1. Mr Chapula and Mr Panich prepared a joint report in response to four questions that were put to them by counsel for the parties. This joint report became Exhibit J. It is not necessary to set out the entirety of this two‑page document. It is sufficient to note that the experts were in agreement on the answers to the questions that were posed; noted that the responsible person for undertaking assessments of stability and any need for secondary support for the underground workings on Claim 1 would be the relevant mine operator (that being the Applicant in these proceedings); that additional secondary support was required and should have been installed. They were in agreement that such support would be by timber propping and that the maximum number of props required to be installed was 41 (dependent on the direction of future mining). Methods of propping were described and the estimate was provided that the necessary propping could have been installed in the present workings on Claim 1 in two days with two-three people involved.

The experts' concurrent oral evidence on propping

1. As earlier noted, Mr Panich and Mr Chapula gave concurrent oral evidence. They were questioned extensively concerning the necessity for the underground arrangements of propping in the workings on Claim 1. Although there was, initially, some disagreement between them concerning the number of props which might be required to be installed, there was otherwise general agreement that propping was a necessary safety precaution as a general proposition and for these workings. It is not necessary to incorporate any lengthy transcript extract of their evidence on this point, evidence which was recorded in the transcript of 20 March 2019 (at page 256, line 30 to page 267, line 38).
2. In particular, however, it is to be noted that I asked these witnesses to inform me about any specific matters relating to the geology of the opal field (Olympic Dribble) where Claim 1, Claim 2 and Martin's claim were located. This element of their oral evidence was in the following terms (Transcript, 20 March 2019, page 267, line 40 to page 268, line 26): HIS HONOUR: What, if anything, do either of you say about any geological differences that might be relevant to anything you were asked to examine in your expert reports, with respect to the underlying geological of the Olympic Dribble field? WITNESS PANICH: The only Dribble field, on my, is much drier, than the guidelines that were originally set up for the Corcoran fields 20 kilometres to the south west. And the rock strata is far more silicified than they are there. Inherently, that would make the actual rock strata would be stronger. HIS HONOUR: Mr Chapula, do you agree with that? WITNESS CHAPULA: The guidelines are general guidelines. They're not specific, so whether they were made for weak or content rock, they will still apply. And if they were made for areas which were weak, when used in areas which are very content, then they'll be even better. So if we talking about the formulation of those guidelines being done in various which way, unstable, that makes them better. HIS HONOUR: I understand that point. WITNESS CHAPULA: Yep. HIS HONOUR: Do you agree with what Mr Panich just said to me, about the underlying geological difference between the Olympic Dribble field, and fields closer to Lightning Ridge proper? WITNESS CHAPULA: Yes, I agree. HIS HONOUR: That is, I understood him to be saying that the substratum is harder? WITNESS CHAPULA: Harder. Without structural influence. By associating, you just looking at the geological makeup of an area. We're not talking about having put in any excavations. When we put in an excavation in a strata which is different, there's a possibility in some instances that the excavation stands for a longer time without any supporting, an area which is perceived to be weak. Because of other, maybe the mining methods used.
3. All of the written and oral evidence I have set out above concerning propping leads me to the conclusion that prudent mining practice is to incorporate an ongoing propping arrangement into the mine plan methodology. Such an approach is, it is to be inferred from this material and the subsequent prohibition notices (later discussed), the proper and necessary approach arising out of occupational health and safety requirements appropriate to be applied in such circumstances.

The future of mining in Claim 1

1. During the course of their concurrent evidence, Ms Ashworth asked the mining experts to confirm that, when appropriate, propping had been installed in the workings on Claim 1, there was no reason why mining on Claim 1 could not recommence. They confirmed that this was the case (Transcript, 20 March 2019, page 256, lines 19 to 28): ASHWORTH: Gentlemen, once the additional propping set out in your joint report is installed, work on the mine on 56861 can recommence. Is that correct? Mr Chapula, would you like to go first? WITNESS CHAPULA: Yep. That's correct. Once the, that's installed, yes. WITNESS PANICH: That's correct. And I'll just make the comment that really, we'd like to know the direction in which mining is to proceed. As I've commented before, we don't know what's around there, the claim itself. So it would be very wise to find out that first.

The Applicant's propping evidence

1. The Applicant gave affidavit evidence concerning the lack of propping as part of his underground working methodology. He was also cross-examined by Mr Stretton at some length on this topic.
2. In his affidavit of 9 June 2018, the Applicant said, at [49] to [52]: 49 The reason that I delayed putting props in and disagree with the site specified by the prohibition notices is that the hydraulic digger, at full extension is 3-4 metres. There is a risk of injuring the operator or knocking out the props if they are put in too early or in the wrong places. 50 I have been unable minor for 20 years and regard myself as very experienced. During the time that I have been an opal miner, I have never suffered any injury relating to opal-mining activities, had any safety or prohibition notices issued, or been involved in any incident relating to the safety of any mine I have been working in. 51 I consider that the mine on opal-mining Claim 56861 did need to have props installed before further mining was done and I intended to carry out this work when I returned to work in the mine. I did not consider that it was a safety risk in its current state. I base my assessments as to the safety of any mine I am working in on my experiences as an opal miner and on the risk assessment guidelines in the NSW Opal Mining Safety Guidelines, referred to in the prohibition notices. 52 I have undertaken a safety awareness course, a mine operators' course and in environmental course to ensure that I am fully aware of requirements for conducting mining activities. Because I am aware that props need to be installed, and had planned to install them, I am willing to install them.
3. The Applicant also deposed an affidavit dated 28 August 2018. Concerning the blocking of his Super Digger underground on Claim 1, the Applicant said, at [13] to [16]: 13 On 18 June 2018 consent orders were made by this honourable Court allowing me to carry out certain secondary support works and then retrieve my equipment from Mineral Claim No 56861. 14 On 1 July 2017, work commenced in Mineral Claim 56861 to put in secondary supports in accordance with the orders. All the work was carried out at my expense entirely. The work was overseen by Mr Drago Panich. 15 The work was finished on 2 July 2017 and on 3 July 2017 a crane I had hired together the crane driver arrived and lifted my Super Digger and other equipment out of the Mineral Claim. A Super Digger is a stronger digger designed for hard ground. 16 From 10 August 2017 until my mining equipment was retrieved from Mineral Claim No 56861 on 3 July 2018, I lost 328 work days being approximately 46 weeks. If I had worked five days each week I calculate my lost income as $363,055, being 230 days at $1,578.50 per day.
4. It is clear that the reference to 2017 in [14] and [15] in the above extract from the Applicant's affidavit should have been references to 2018. The calculation of lost income is based on earnings that the Applicant had achieved as a consequence of winning opal from Claim 1 over a period earlier set out in that affidavit. For the reasons later discussed, I am unable to accept that that is an appropriate basis upon which to commence calculating compensation for the Applicant for the detention of his Super Digger, given the speculative and unreliable nature of opal-mining activities.
5. The Applicant was cross-examined on the question of propping. His evidence in this regard is relevant, not only on the general question of propping and its necessity for the workings on Claim 1, but also as to whether he commenced preparation to undertake propping in those workings in May 2017. His evidence on these matters is set out below (Transcript, 18 March 2019, page 66, line 32 to page 71, line 47): Q. In early May 2017 did you ask your friend Todd Loce to assist in propping the mine? A. Cutting some props, yes. Q. And around the same time did you ask another friend, Charles Carpenter, to assist in propping the mine? A. Yes. Q. So, you were asking your friends to help you prop the mine at a time when you didn't think it needed to be propped; is that right? A. It needed the props because I was moving up to the green the hole C, after after the pink area was completed. Q. You just said a moment ago that you didn't think it needed propping until 2 August 2017, didn't you? A. That's the only that's the last time I went down there. Q. No, I'm asking you, you said, just before, that you didn't think it needed propping until 2 August 2017, if that's the case, you wouldn't have asked your friends in about May 2017 to help you prop it, would you? A. Yes. Q. You asked your friends to help you prop it in about May 2017 because Owen had told you to prop it; correct? A. No. Q. In any event, it didn't end up getting propped, did it? A. No. Q. And your logbook entry on 3 August 2017, which I think you might have corrected to the second, records, "Change drives, maybe move holes with blower and put ten to 15 props in just for extra support, eg hasn't been done yet because I didn't want to prop myself in," do you remember that entry? A. Yes. Q. So, even at that stage, you were still saying, "Maybe" about props, weren't you? A. Yes. Q. You were saying, "Maybe do it just for extra support," weren't you"? A. No. Q. Well, isn't that what the entry says? A. Well, it does but I was going to do it. Q. So, the entry is incorrect, is it? A. No. Q. Well, you were definitely going to put them in, do you say? A. Yes. Q. So, the, "Maybe" was incorrect, was it? A. Yes. Q. If it was incorrect, why did you write, "Maybe"? A. Because I didn't know which drive I was going to continue on until that time. Q. You clearly didn't think it needed to be done, did you, propping, I mean? A. Yes. Q. You had no real intention of propping it, did you? A. Yes. Q. If you were going to put props in, would you have done it in accordance with your safety management system? A. Yes. Q. That's the document at page 245, is that the document? A. Yes. Q. In the sixth dot point, you say, "I install props at the end of each opening I create where necessary after I've completed the drive (tunnel)", that's part of your system, isn't it? A. Yes. Q. And then, in the next one you say, "This allows me to place the props where needed without restricting the entry or exiting with my digger to start new drives" and so on, that's also part of your system, isn't it? A. Yes. Q. So, your system is only to put props in at the ends of drives and only after you've completed the drives, isn't it? A. Yes. Q. Well, that's contrary to the guidelines, isn't it? A. No. Q. Well, where do the guidelines say that you only need to prop the ends of drives? A. I'm not sure, what do you mean? Q. Well, is there anything in the guidelines that tells you, you only have to put propping in at the ends of drives? A. That's not what I'm intending. When I've finished the area, finished that drive, not at the end of the drive. Q. I see, you're just talking about when you actually put them in? A. Yes. Q. Not the location of them? A. Definitely the location. Q. It is the location? A. Yes. Q. At the end of the drive? A. Along the drive, wherever they need to be. Q. Could you turn to page 323 please of the Court book, you see, on the left hand side of the page, about halfway down, there's a paragraph beginning, "Secondary support"? A. Yes. Q. And it says, "Secondary support should be installed at the time an opening such as a drive is created, the objective is to support ground before it has a chance to settle or relax," do you see that there? A. Yes. Q. Well, you certainly didn't install secondary support at the time the drives in claim 56861 were created, did you? A. No. Q. So, that was contrary to the guidelines, wasn't it? A. To the guidelines, yes. Q. By the way, have you read the joint expert report of Mr Panich and Mr Chapula in these proceedings? A. Yes. Q. Do you agree or disagree with them when they say that secondary support should have been installed as soon as the openings were wired or long enough for the installation of the support? A. I disagree. Q. So, you know better than both the experts? A. I don't know better than them but I know what I know. Q. Do you agree with the experts when they say, "The decision to install secondary support should have been taken by the person having day to day control of mining operations," meaning you? A. Yes. Q. Is it possible that you've overestimated your own knowledge of mine safety, Mr Morris? A. Definitely not. Q. Just turn to page 327, if you would, you see, at the bottom left, there's a note where it says, "Props are commonly placed 1 metre apart with competent miners going above or below that, depending on conditions"? A. Yep. Q. Do you agree that 1 metre apart would be the usual spacing for secondary support? A. Depending, yes. Q. Depending on the conditions? A. That's it. Q. Of course, one thing you say is that the lack of propping, the lack of secondary support, was all fine, it was all safe because you were doing daily safety checks; is that right? A. Yes. Q. And you say that you would check the roof by tapping to make sure it did not sound hollow or drummy, if it did, that would indicate that it could dry out and fall and you would have immediately installed props; correct? A. Yes. Q. Except you were just assuming, weren't you, that you were going to get warning signs before any roof collapse would occur, weren't you? A. No. Q. Well, do you accept that, in most case, roof collapse happens without warning signs? A. I'm not sure what you mean. Q. Well, you were going in and checking the roof each day to check for signs of possible collapse, weren't you? A. Yes. Q. And you didn't find such signs? A. No. Q. And because the roof sounded all right, you concluded that it was safe; correct? A. Yes. Q. What I'm putting to you is that, in most cases, roof collapse happens without any warning; do you agree with that? A. No. Q. Well, you're not a geologist, are you? A. No. Q. You're not a geotechnical engineer, are you? A. No. Q. You're not any sort of expert on roof collapse, are you? A. Yes. Q. How many roof collapses have you been involved in? A. None. Q. That's why you need to follow the guidelines, isn't it, Mr Morris? A. No. Q. See, what you were doing is going in each day, testing the roof with a bit of a tap and if it sounded okay, you assumed it was safe; correct? A. And physical inspection. Q. And since it looked and sounded safe to you, that's why you didn't install secondary propping? A. Yes. Q. Could you turn to page 320 of the Court book, you see there, there's a heading, "7.4 Common factors contributing to roof failure"? A. Yes. Q. And the second of those factors, the second dot point is, "Miners making assumptions that the roof was good because it looked stable, this was then used as justification for why secondary support, such as props, would not be required," do you see that? A. Yes. Q. You've fallen into a very similar trap, haven't you? A. No. Q. In your case, you've assumed the roof was safe because it looked and sounded safe, didn't you? A. Yes. Q. And then you used that as justification for not putting in secondary support, didn't you? A. No. Q. Well, that was part of your justification for not putting in secondary support, wasn't it? A. What do you mean? Q. Well, I'm asking you why you didn't put propping in the mine and I'm saying part of your reason for not propping it was because you were doing these daily checks? A. That's correct. Q. Using those daily checks as a reason not to put in secondary support was unsafe, wasn't it? A. No. Q. It was unsafe because roof collapses can happen without warning, correct? A. No. Q. In April 2017, Owen told you to put props in the mine, didn't he? A. No. Q. He said he was worried that the mine wasn't propped at all, didn't he? A. What's that, sorry? Q. Sorry, in April 2017, Owen said to you that he was worried the mine wasn't propped at all? A. No. Q. In May 2017, he again told you to put in props? A. No. Q. And, at that time, May 2017, he said, "You still haven't fixed the ladders or shored up the fault or the mine," didn't he? A. No.
6. His further evidence was (Transcript, 19 March 2019, page 105, line 10 to page 106, line 29): Q. And so the mine stayed in exactly the same condition from 2 June, for about 2 months? A. Yes. Q. That is from 2 June 2017 to 2 August 2017? A. That's 12 months apart, no, not that far apart. Q. No, sorry, 2 June 2017 to 2 August 2017, two months later? A. Yes. Q. And on a couple of pages over, at page 75 of the Court book, the entry at the bottom of the page is dated 3 August 2017? A. Yeah, which should be the second, yeah. Q. Which you've corrected to 2 August 2017? A. Yes. Q. And, again, it lists your safety checks on that day? A. Yes. Q. And, again, no issues with safety? A. No. Q. And then, on that same day, you formed the view, did you, that the mine needed propping? A. Yes. Q. So, that was a view you formed when the condition of the mine had not changed for the past two months and the safety checks had passed again as usual, wasn't it? A. Yes. Q. What had changed then to make you form the view on 3 or 2 August 2017, that the mine needed propping? A. Because I made up my mind which direction I was going in, to make it a little bit more secure, to put a few props in. Q. Did you take any steps to prop the mine between 2 and 9 August 2017? A. No, because I wasn't out there. Q. In that entry just over the page on 76 which is a continuation of the 2 or 3 August entry, you say, "Hasn't been done yet because I didn't want to prop myself in," don't you? A. Yes. Q. In writing that, you were trying to justify the lack of propping, weren't you? A. No. Q. Or you were trying to explain the lack of propping, weren't you? A. No. Q. That's not an explanation for the lack of propping? A. No. Q. What is it then? A. It's explaining that I was finished in the area that I just counted on when I had been going backwards and forwards and I decided to stay in the area I was in and that's when I was going to install the secondary support. Q. Well, that's an explanation for the lack of propping, isn't it? A. No, not really. Q. Something had made you think about why you hadn't propped the mine yet, hadn't it? A. No. Q. What I suggest is that Owen had told you, back in April and May 2017, that you should prop it, months passed, you still hadn't propped it and that's why you were trying to justify the lack of propping here; correct? A. No

Mr Lohse's evidence on propping

1. Mr Lohse's evidence concerning propping was in two distinct parts. First, he dealt with, in his written evidence, a request which had been made to him by the Applicant to assist him by cutting props for the mine on Claim 1. This evidence is consistent with that given by the Applicant that the Applicant commenced preparation for propping in May 2017 (although Mr Lohse's evidence does not nominate a specific date when the Applicant's approach was made).
2. Second, at a more general level, Mr Lohse's evidence was supportive of the general proposition that propping was appropriate and necessary for underground opal mining.
3. Although Mr Lohse deposed that he had not worked with the Applicant after the initial period of commencing mining on Claim 1, he also recorded in his affidavit of 31 October 2018 the following, at [6]: 6 I don't remember the exact date but whilst Shane was still mining MC 56861 he phoned me and said, "Mate can you cut some props for me. I don't mind putting them in but I don't like cutting them."
4. Mr Lohse was cross-examined about propping and safety matters based on his experience as an opal miner. He said (Transcript, 20 March 2019, page 246, line 17 to page 248, line 17): STRETTON Q. Are you familiar with precautions to do with propping of mines? A. Yes. Q. In fact, you have some experience cutting props for mines? A. Yes. Q. Is it the case that props are installed to help prevent mines from collapsing? A. Yes. Q. Do you recall that the guidelines say that as a general guide, drives greater than 1.8 metre wide will require secondary support? A. Yes. Q. So is it standard industry practice to install props if you've got drives that are over 1.8 metres wide? A. Yes, you do install one, yes. Q. The guidelines also say, secondary supports should be at the time an opening, such as a drive, is created. Do you recall seeing that in the guidelines? A. Yes. Q. So if a drive is over 1.8 metres wide, is it standard industry practice to install props at the time it's created? A. As you're moving forward, yes. Q. Is it common industry practice to leave a shaft pillar around access shafts for opal miners? A. Could you repeat the question, please? Q. Are you familiar with the concept of a shaft pillar? A. Yes. Q. Is it common practice to leave a shaft pillar around an access hole to support it? A. Not always. You can use props in replace of pillars. Q. So it's either pillars or props? A. Yes. Q. As some point, did Shane Morris ask you to cut some props for him, for claim 56861? A. Yes. Q. Do you recall when that was? A. No, not the date. Q. Would it have been early May 2017? A. Couldn't tell you. It's, he rang and asked, but I couldn't tell you a date. It would, I'd be making it up if I did that. Q. Did he tell you why he wanted the props? A. Because he was in the area, he had to prop. Q. Did you end up cutting the props for him? A. I've cut heaps of props for him. Yes, I have cut them props, yes. Q. When did you do that? A. After he'd made the phone call to me, to ask him to cut the props. Q. Was that before or after he told you about some prohibition notices? A. No, that was before. Q. But you didn't end up installing the props? A. No. Not by the time that I'd got there to deliver them. He'd, the prohibition notice had been enforced. They've, so I sold them to the other miners. Q. How long did it take you to cut the props? A. I can cut over 100 props on my own, for, in a day. Q. If you had to install, say, 70 or 80 props, how long would that take? A. With another person, three, four days. On your own, seven, eight.

Mr Carpenter's evidence

1. An affidavit from Mr Carpenter was read in the Applicant's case. Mr Carpenter was not required for cross-examination. Mr Carpenter's evidence concerning propping in the underground works on Claim 1 was in the following terms: 8 On one occasion Shane had asked me to help him put in some props in MC5 6861. I am not sure of the date but it was when Shane's reconditioned blower had been returned from Gilgandra and I used that blower as Shane still had my good blower in MC 56861.
2. The lack of precision of this evidence renders it of no assistance on this issue.

The prohibition notices

1. On 20 August 2017, the First Respondent wrote a letter addressed to the Department at its Lightning Ridge offices. That letter (Annexure G to the First Respondent's affidavit of 26 September 2018) set out what the First Respondent considered were deficiencies in the Applicant's mining activities that warranted consideration by, and response from, the Department. It is appropriate to note that this action was taken at about the time as the First Respondent blockaded the Applicant from access to the underground workings on Claim 1 and generally coincided with the First Respondent's purported transfer of Claim 2 to the Second Respondent.
2. The letter is at folios 447 and 448 of the Court Book. On folio 448, the First Respondent repeats material concerning an alleged conversation on 6 August 2017 and the alleged visit by the Applicant to Claim 1 on 7 August 2017. I have, earlier, in my discussion of the issues relating to mining into Martin's claim, explained why I have rejected the First Respondent's evidence in this regard. It is sufficient to note that, with respect to the allegations I have rejected concerning what took place on 7 August 2017, that the conduct attributed to the Applicant by the First Respondent in this letter to the regulator is quite prejudicial.
3. As a consequence of the letter, Mr Michael Babic, an official of the Department, undertook an inspection of the mining activities on Claim 1. This inspection took place on 28 August 2017. Consequent on that inspection, two prohibition orders were served on the First Respondent. Those notices were issued on 31 August 2017.
4. The statutory foundation for the power to issue such prohibition notices is set out on those notices (copies of which were in evidence as they were attached, behind Tab 16, to the affidavit of the First Respondent dated 26 September 2017 and became Exhibit 2). The Department did not cause the notices to be served on the Applicant, despite the fact that he was the nominated operator of the mine, with notification of him having been so nominated being lodged with the Department more than 12 months' earlier in about July 2016.
5. The First Respondent did not provide the Applicant with a copy of the prohibition notice until about 11 September 2017 (almost two weeks after the notices had been served on the First Respondent). The effect of the delay in drawing these matters to the Applicant's attention meant that any opportunity the Applicant may have had to appeal against it (and it is unnecessary to explore that further) had disappeared as a consequence of the effluxion of time.
6. I am satisfied that the overall content of what is set out in the First Respondent's letter of 20 August 2017 was substantially (if not entirely) conveyed to the Department as a tactical manoeuvre on behalf of the First Respondent as part of his activities seeking to terminate his mining arrangement with the Applicant.
7. This is reinforced by a short element of the First Respondent's evidence in cross-examination where he said (Transcript, 20 March 2019, page 208, lines 12 to 18): Q. So some time after the prohibition notices were issued, you became aware that Mr Morris was willing to install props in 56861? A. Yes. Q. And you were only willing to let Mr Morris prop if he terminated the partnership; correct? A. Yes.

Consideration of propping matters

1. Although I am satisfied that there was a proper basis for the issuing of the prohibition notices (a matter not in dispute in these proceedings, in any event) and that good mining practice, as described in the Safety Guidelines and as expanded upon by both the evidence of the engineering experts and from Mr Lohse (based on his extensive experience as an opal miner), means that it was imprudent in the extreme for the Applicant not to have undertaken continuous propping as necessary as he had mined underground on Claim 1. However, I am not satisfied that this provided any proper basis for the First Respondent to terminate the arrangement with the Applicant.
2. As I have set out above, I am satisfied that the reason why the First Respondent approached the Department, seeking to have prohibition notices issued concerning the underground workings on Claim 1, was purely a tactical step undertaken by the First Respondent in order to seek to have a foundation to force the termination of the arrangement with the Applicant.
3. I do not accept that the First Respondent had any genuine concern about the absence of propping. I am reinforced in this view by the failure of the First Respondent to provide the Applicant, promptly, with copies of the prohibition notices. I do not find that the absence of propping and/or the prohibition notices justified the First Respondent's purported termination of the arrangement with the Applicant.

The First Respondent blocks underground access on Claim 1

1. On about 10 August 2017, the First Respondent parked a truck over the access shaft (marked "C" on the Applicant's Underground Workings Plan). This had the effect not only of preventing the Applicant from going down into the underground workings but also had the effect of preventing him from removing his Super Digger from the workings and thus denying him the opportunity to utilise it elsewhere. This denial of access was eventually resolved by orders by this Court.
2. Although the Applicant was, as a consequence, able to retrieve his Super Digger, he was denied access to the use of this piece of equipment for a period of approximately 327 days.

The compensation claim

1. As a result of barricading the Applicant's Super Digger in the underground workings on Claim 1, the Applicant's Amended Summons has sought compensation to be paid by the First Respondent for this. That claim can be seen from the terms of the Amended Summons earlier set out.
2. There are two aspects to this claim that require my consideration. These are the extent to which, in reality, the Applicant would have had alternative economic opportunities available to him to use this equipment (and, if so, the likely operative time for such uses, given that compensation is proposed, in Ms Ashworth's submission, to be on a daily basis) and, second, what might be the appropriate daily basis upon which such compensation should be calculated if it is to be awarded.

Available work for the Super Digger

1. The Applicant gave evidence of discussions he had had with a Mr William O'Brien, the holder (whether beneficial or direct being irrelevant) of a number of Mineral Claims. During those discussions, it was the Applicant's evidence that Mr O'Brien had offered him the opportunity to undertake a shared profit mining operation on those claims. It was the Applicant's evidence that he had passed up those opportunities in order to take advantage of the arrangement with the First Respondent, but that it was his belief that those opportunities remained open to him at the time that the First Respondent barricaded the Applicant's Super Digger in the underground workings on Claim 1. Mr O'Brien's affidavit evidence was generally consistent with the Applicant's account. As earlier noted, Mr O'Brien was not required for cross-examination.
2. For the purposes of my assessment of availability for work for the Applicant's Super Digger, it is appropriate to assume that access to Mr O'Brien's Mineral Claims would have been available to the Applicant had his Super Digger been available to enable him to undertake those mining activities.

Calculating compensation

1. In his Expert Report (Exhibit H), Mr Panich set out his understanding of matters going to the potential for compensation to the Applicant for the detention by the First Respondent of the Applicant's Super Digger. This evidence (pages 11 and 12 of Exhibit H) was in the following terms: All equipment is custom built for opal mining and to evaluate the loss of income when this is generally used as opal mining equipment is extremely difficult. However this type of equipment has been used in civil engineering projects where small underground excavations are needed. This has been done in the Hawkesbury sandstone of the Sydney area and includes excavation of garages and lift access tunnels. The question of what constitutes a reasonable return on capital of this nature must first be answered by the question "What is the risk?" The assessment must then be made as to the likely return versus the potential risk. It is extremely unlikely that one can "prove the economic viability" of an opal claim in the way that main stream mining operations can do such as base metals or gold mining where one can make an assessment as to likely "economic viability" or if it contains "economic ore reserves". The definition of which gives some comfort to the investor/miner that it is possible to be able to mine, process and market the commodity for a profit. Many have tried to develop economic models for opal mining but so far few have succeeded. That is not to say that there are no long term successful operations, however the variables associated with end product i.e. types of colour, make magnitudes of difference in returns to the miners, so assessment is very much based on experience and bulk sampling of prospective claims after exploration drilling. The inherent high risk with all gemstone operations is "gem grade" i.e. the quality hence price of the gemstones recovered and then the quantity. This "gem grade" allows a high variability in the quality of stones mined. That is, the higher the "gem grade" the fewer stones need to be mined for a mining operation to be economically viable. Hence, for any gem mining operation and opal mining In particular, economic assessment from drilling can be extremely difficult. Therefore, any gemstone miner/operator would expect a high risk revenue profile in his mining operations. In an attempt to compensate for the risk revenue profile of opal mining particularly when one is working someone else's claim, one would expect to receive a high percentage of sales to compensate for this risk profile. There can be a large variation in the division of sales revenue to the various parties in an opal mining partnership. Depending on the expectation of both parties 70-80% of the sales revenue is returned to operator and/or equipment owner. This division of sales revenue is not unusual in the Lightning Ridge-Grawin-Glengarry-Sheep Yard. opal fields. This makes assessment of the loss Mr Morris's (sic) suffered from the inability to access his equipment very difficult to assess. I am instructed that Mr Morris has previously hired out his equipment. On that basis, and after discussions with other equipment owners, I believe that this type of machinery has been used in small civil engineering excavation contracts. These contracts were small projects such as small access tunnels and garages in the Sydney's (sic) Hawkesbury sandstone. On the basis of those instructions and discussions, I understand that the nominal day rate is $5,000-$7,000 for the use of equipment that was designed and is generally used in opal mining operations in the Lightning Ridge-Grawin-Glengarry-Sheep Yard opal fields.
2. In addition, affidavit evidence was given on behalf of the Applicant by Mr Cummins, concerning the "with operator" rate at which machines of a similar capability to the Applicant's Super Digger might be hired out. Such engagements as were discussed were ones where the machines were hired to undertake comparatively small-scale tunnelling work in the Sydney metropolitan area. The charge-out rate (with the operator), described as being applicable in such circumstances, ranged between $4,000 and $7,500 per day, depending on the type of job and whether a second operator was supplied.
3. Ms Ashworth submitted to me that such a rate would be appropriate to be applied, by analogy, to compensate the Applicant for the fact that the Applicant had been denied the use of his Super Digger by the First Respondent's blockade.

Consideration

1. Whilst it is undoubtedly the position that the Applicant was denied the use of his Super Digger for the period of about 327 days, I am not satisfied that there is any proper basis upon which I could award the Applicant compensation for this with any proper legal basis for doing so. There are two reasons why I have reached this conclusion.
2. First, with respect to the rates advanced for utilisation of analogous equipment for tunnelling in the Sydney metropolitan region, there is no evidence given by the Applicant that, had he had access to his Super Digger, he would have utilised it in this fashion. As a consequence, in circumstances where, on the Applicant's own evidence, his hypothetical alternative use for his equipment would have been for opal mining on Mr O'Brien's Mineral Claims, there is no valid basis upon which Sydney metropolitan tunnelling charge-out rates could be said to be relevant in any fashion.
3. There are two observations to be made concerning Mr Panich's evidence on this point. First, it confirms the speculative nature of, and risks associated with, opal-mining activities. Second, the evidence of the nominal day rate cited by Mr Panich is not only hearsay but is also based on work rates in the Sydney metropolitan area in circumstances where there is no evidence that the Applicant intended to undertake such contracting activities at the relevant time (indeed, the evidence is to the contrary, as earlier discussed).
4. Opal mining is notoriously fickle and the subsurface geology entirely unpredictable. Whilst exploratory drilling may show some presence of "colour", even that is no guarantee that there will be significant quantities of opal available to be won from any particular Mineral Claim. Indeed, the mining of adjacent Mineral Claims may result in quite radically different economic outcomes, with significant opal being won from a first claim, whilst little or no opal might come from a Mineral Claim with a common 50-metre boundary with that of the first.
5. The nature of the relationship between the First Respondent and the Applicant, although extremely lucrative in terms of the opal won from Claim 1, was an entirely speculative one. Equally, any putative arrangement between the Applicant and Mr O'Brien for the working of Mr O'Brien's Mineral Claims would have been a similarly speculative one.
6. It is to be observed that Mr O'Brien's affidavit, an affidavit read without objection and in circumstances where Mr O'Brien was not required for cross‑examination, makes no mention of Mr O'Brien having undertaken any test drilling on Mineral Claim 56859 (held in his wife's name) that was the subject of discussion with the Applicant about the potentiality of the Applicant working that claim.
7. In this context, it is to be observed that there is no evidence that the Mineral Claims that were the subject of the discussion between the Applicant and Mr O'Brien have, in fact, been worked. There is, specifically, no evidence as to what mineral values, if any, might be won from working Mr O'Brien's claims.
8. In these circumstances, although the Applicant was clearly denied the use of his Super Digger at Claim 1, or at any other location, for a period of approximately 327 days, there is no proper basis upon which I could calculate any entitlement to damages for this. As a consequence, the Applicant's claim for compensation for denial of use of his Super Digger must be rejected.

Introduction

1. I have earlier described the piece of mining equipment owned by the Applicant called a Super Digger. The detention of this equipment down the shaft on Claim 1 has earlier been considered and a determination made as to the consequences flowing from this. There is, however, a second claim concerning the Super Digger. It arises out of the desire by the First Respondent to have a similar piece of equipment constructed for his own use or use by Martin.
2. For this to be able to occur, the hydraulic system operating the Applicant's equipment needed to be measured, in technical aspects which are not relevant for this consideration, to enable construction of a similar machine for the First Respondent. To arrange for this to occur, it was the Applicant's evidence that his machine was taken to a firm named "Parkes Hydraulics" for two purposes.
3. The first purpose was to effect some repairs that were necessary to enable the Applicant's continuing mining operations.
4. However, the second purpose was to permit Parkes Hydraulics to undertake sufficient dismantling of the Applicant's Super Digger to enable the necessary measurements to be made to permit construction of a similar machine for the First Respondent/Martin.
5. Work was carried out by Parkes Hydraulics and a bill rendered to the Applicant for the sum of approximately $21,000. It is the Applicant's evidence that, of that sum, $11,000 is to be attributed as the cost of the work which he had authorised to be undertaken for repair purposes, whilst the residual amount of $10,000 was incurred because of the extra time necessary for the sufficient disassembling of the equipment for the purposes of measuring to permit construction of the replica for the First Respondent.
6. On the other hand, it was the First Respondent's position that no measuring had proved to be necessary for the purposes of permitting construction of a replica for him, as relevant information had been revealed from mere examination of the Applicant's machine so that the relevant dimensions of hydraulic cylinders and their rams could be ascertained without any need for any dismantling of the Applicant's machine. As a consequence, it was First Respondent's position that the entirety of the $21,000 account rendered to the Applicant related to repairs undertaken to the Applicant's machine for the Applicant's benefit. He denied any liability to contribute to payment of the account.

The Applicant's evidence on the Parkes Hydraulics' account

1. The Applicant dealt with the Parkes Hydraulics' account in both his affidavit evidence and in his cross-examination by Mr Stretton. His affidavit evidence was in two elements. The first was contained in his affidavit of 28 August 2018, where he recounted his version of the events involved. The second element of his evidence comprised his evidence in reply in his affidavit of 2 November 2018.
2. The Applicant was also cross-examined by Mr Stretton on this issue.
3. To enable an understanding of the Applicant's evidence, I set out, first, the material contained in his affidavit of 28 August 2018. This was in the following terms: 18) In about October 2015 the Respondent took my Supper Digger, with my consent, to have it copied. 19) The respondent: (a) Took the Super Digger to Parkes Hydraulic Services (PHS) as it required some work. In addition to the work I required PHS also did such things as pull out and measure the hydraulic cylinders. This information was used by the Respondent to build his Super Digger. (b) Authorised work on the Super Digger without obtaining an estimate or quote and without obtaining my consent. 20) The invoice from Parkes Hydraulics Services was for approximately $21,000. I am still paying off the invoice. The Respondent verbally agreed to pay $10,000 towards the costs and asked me to deduct the $10,000 from his share of the sale of opal which I declined to do. I preferred to keep the 2 agreements separate. The Respondent has never paid to me the sum of $10,000. 21) I understand that the Respondent's Super Digger is nearly completed.
4. His oral evidence on this topic was in the following terms (Transcript, 19 March, page 115, line 24 to page 117, line 16): Q. I've finished with matters with the video. You say that in about October 2015, Owen took your Super Digger to have it copied? A. Yes. Q. You told Owen he could have it for a week, to get it copied? A. Yes. Q. He took it to Leeton, to have it measured? A. Correct. Q. Then you told him to take it to Gilgandra for some repairs? A. Yes. Q. But that didn't happen? A. No. Q. So you told him to take it to Parkes to get it fixed, didn't you? A. No. Q. You told him to take it to Parkes Hydraulic Services, didn't you? A. No. Q. You accept that he did take it to Parkes Hydraulic Services? A. Yes. Q. You received a call from Ian Allen at Parkes Hydraulic Services, didn't you? A. Many calls. Q. Many calls? A. Many. Q. Those calls were about the work that was to be done on the digger, weren't they? A. Parts of it, yes. Q. You told Mr Allen what repairs you wanted done on the digger, didn't you? A. Yes. Q. You told him to go ahead with repairs? A. Yes. Q. You later received an invoice from Parkes Hydraulic Services? A. Yes. Q. You disputed the invoice, didn't you? A. Yes. Q. Because you thought they were overcharging you, didn't you? A. Yes. Q. Owen helped you to write to Parkes Hydraulic Services to dispute the invoice, didn't he? A. Yes. Q. In the course of the dispute, Parkes Hydraulic Services was trying to charge you and Owen as well, for the work, wasn't it? A. No, not at the start. Q. But later on they did? A. Yes. Q. After that happened, Owen said to you something like, "I'll help you out by paying $10,000 towards the invoice, which you can deduct from my share of opal sales"? A. Yes. Q. You said something like, "No, I don't want to deduct it from sales, because I want to keep the two agreements separate." Correct? A. Yes. Q. He never offered to pay you $10,000 cash, did he? A. Yes. Q. You didn't say anything about that in your affidavit, did you? A. I mightn't have used the word "cash," but I did mention the $10,000 that he owes. Q. Were you telling the whole truth in your affidavit? A. Yes. Q. You don't say anything other than $10,000 deducted from opal proceeds, do you? A. I'm not sure where you're at with that. Q. In your affidavit, you don't say anything in terms of an offer by Owen to pay $10,000, other than by deduction from opal sale proceeds. Correct? A. I'm missing the question, sorry. Q. In your affidavit, you mention that Owen offered to pay $10,000 by way of deduction from opal sale proceeds? A. That's what Owen said, not I. Q. That's the offer he made, isn't it? A. Yes.

The First Respondent's version

1. First Respondent's evidence concerning the work done by Parkes Hydraulics was set out in his affidavit of 26 September 2018 in the following terms: 108 In relation to paragraph 18 (in which Shane says I took his Super Digger with his consent to have it copied), and paragraph 19 (in which Shane says I took Shane's Super Digger to Parkes Hydraulic Services and had them carry out work it required without his consent or without obtaining an estimate or quote), Shane said that I could have it for a week. My son Martin wanted it copied so he could have one. I took it to Leeton to have it measured. When I was bringing it back, Shane said "Take it to my cousin in Gilgandra to have the ram pin holes repaired" I tried to reach Shane, but I couldn't reach him and didn't know where this relation lived. So I took the digger back to Glengarry. When I got there, I spoke to Shane and we had a conversation to the following effect: I said: I've brought the digger back because I didn't know where your relation was and I couldn't reach you to find out the address. He said: You should have waited. I said: What do you mean waited? For how long? He said: Until I rang you I said: Well who pays for the motel bill? 109 We later had a conversation to the following effect: I said: They'll be able to fix at Parkes. He said: Well take it back there and get them to fix the ram. 110 NOT READ 111 NOT READ 112 Ultimately nothing from Parkes Hydraulic Services was used in Martin's digger. 113 In relation to paragraph 20 (in which Shane says I agreed to pay $10,000 towards the Parkes Hydraulic Services invoice), after Shane had received the invoice from PHS, he was complaining about the invoice. I said to him words to the effect of "I'll give you $10,000 towards the bill, you fix him up and then go back to work". Shane said "No I'm not paying him. He can wait. I'll pay him out of my Centrelink payments", declining my offer. Since Shane didn't appear interested in me helping him to get him back to work, I didn't make the offer again and he never tried to accept it. Our agreement did not change. Shane was to pay for all of the expenses in the mining of the claim, including equipment repairs and maintenance. That is part of why his share of proceeds was much more than mine (70 vs 30), to account for that. I don't owe him anything in relation to the repairs of the digger. Shane also provided me a bundle of correspondence between himself and Parkes Hydraulics Service … 114 I assisted Mr Morris by writing to Parkes Hydraulics Services on his behalf …
2. His oral evidence on this point was in the following terms (Transcript, 20 March 2019, page 203, line 3 to page 206, line 4): Q. Now, in or around September 2015 you asked Mr Morris if you could borrow his Super Digger for the purposes of having it copied; correct? A. Yes. Q. And he agreed; correct? A. Yes. Q. And you removed it from the mine from around mid to late September 2015? A. I can't recall the exact date. Q. You didn't go underground on that occasion, though? A. No. Q. And you were assisted in removing it by Mr Morris' brother, Chris? A. Yes. Q. And Mr Barker? A. Yes. Q. And you then took it to Parkes Hydraulic Services for the first time, didn't you? A. Yes. Q. And on that occasion you intended for the hydraulic cylinders, or rams, to be measured in situ do you understand what I mean by "in situ"? A. (No verbal reply) Q. I'll withdraw the question. On that occasion you intended for the hydraulic cylinders, or ram said, to be measured without the need for dismantling the machine; correct? A. Yes. Q. And they told you they couldn't measure them without taking the machine apart; correct? A. No. Q. Well, it turned out that they didn't measure the hydraulic components you wanted them to on that occasion, did they? A. No. Q. And you were having a person in Leeton drawing the body work, or the machine frame; correct? A. Yes. Q. So you took the Super Digger back home without having the measurements taken? A. For the rams. Q. For the rams? A. Yes. Q. So at that point you still needed the hydraulics measured; correct? A. Yes. Q. And you knew at that time that would involve dismantling the digger; correct? A. No. Q. Well, that's what Parkes told you, didn't they? A. No. Q. Now, you then took the digger back to Parkes Hydraulic Services for a second time; correct? A. Yes. Q. And on that occasion, they did do the measurements you wanted? A. No. Q. You wanted the hydraulics to be measured so you could copy the machine; correct? A. Yes. Q. And they did that for you; correct? A. No. Q. They certainly say they did that, Mr Hutchinson? A. Well, they never took the number off the rams when he disassembled it to do Shane's job. Q. In order for the hydraulics to be measured, the digger needs to be dismantled, doesn't it? A. No. Q. Well, why couldn't they do it for you on the first occasion then? A. Time. They said I got there too late. Q. Well, it was because they couldn't measure them without dismantling the machine, wasn't it? A. He told me he needed more time. Q. The dismantling of the machine takes time, doesn't it? A. No. Ian Allen said he needed more time to measure the rams. Q. Because he needed to dismantle the machine. A. He never mentioned dismantling. Q. But you know now that is what's required, don't you? A. No. Q. Well, that is, in fact, how Parkes measured the rams for you, isn't it? A. No. Q. Well, when you took it back a second time, you took it back to get the measurements, didn't you? A. Yes. Q. And the work involved in getting the measurements was to dismantle the digger; correct? A. The digger was three quarters dismantled when it went to Parkes Hydraulic. Q. It was. You're right. A. Yes. Q. But they had to further dismantle the digger, didn't they? A. Yes. Q. And they were then able to measure the rams; correct? A. No. They were, but they didn't. Q. They did do that work? A. Well, not according to what Ian told me. Q. That's why they dismantled the machine, wasn't it? A. No. Mainly to fix Shane's digger. They had his digger. Q. And after they measured the hydraulics, they put it back together; correct? A. Yes. Q. The digger back together? A. With Shane and myself were there when it got reassembled. Q. Because it took many days, didn't it, for the digger to be put back together? A. Two days it was reassembled. Q. Well, how long was it at Parkes the second time? A. I don't know. Shane could tell you that. Q. Well, you dropped it off, didn't you? A. Yes. Q. And you were there, you said, when you picked it up? A. I was in Leeton, and I came back. Shane came down from Lightning Ridge Q. So what's your I apologise. A. And just we got the man to assemble the digger. Q. How long do you recall that period of time being? A. It was two days. Q. I'm going to suggest to you that's not correct. A. Well, I only stayed in a motel one night, as far as I can recall.

The Applicant's response affidavit

1. In his affidavit of 2 November 2018, Mr Morris made specific response to the written element of Mr Hutchison's affidavit evidence on this issue set out earlier. This response was in the following terms: 56) Paragraph 108: I deny I told Mr Hutchison to take my digger to my cousin in Gilgandra. I do not have any cousins or other relations anywhere with engineering skills or hydraulic knowledge. 57) Paragraphs 108 to 14: (a) There was more work done to the digger by Parkes Hydraulic Services (PHS) than I authorised; (b) Some of the work was done solely for Mr Hutchison's benefit to enable PHS to obtain information on the hydraulic system so they could copy it and use it in a new digger for Mr Hutchison's son, Martin. Of the total amount, $10,000 related to such work; (c) At this stage I did not know Martin Hutchison or that the digger was for him; (d) I did not reject Mr Hutchison's offer to pay $10,000 towards the PHS invoice; (e) Mr Hutchison later gave me $12,000 cash to purchase hydraulic rams from Rex Boyes (at cost), which as a favour on his behalf; (f) I continued to assist Mr Hutchison with the building his/Martin's new digger; (g) I ordered a DCV80 hydraulic control bank from Jason Flint in Sydney on 15 January 2016 for $1995 + GST which was paid by Martin Hutchison; (h) I did not want to confuse one agreement with another and so I preferred Mr Hutchison to pay me the $10,000 direct rather than deducting it from his share of the sale of opal; (i) I refer to paragraph 20 of my affidavit of 28 August 2018.
2. Finally, in re-examination, the First Respondent was taken to the issue of the repairs/measurement dispute concerning the Applicant's Super Digger. His evidence was (Transcript, 20 March 2019, page 214, lines 21 to 38): Q. You were asked some questions today in relation to the digger and Parkes Hydraulic Services. Do you recall some questions bet that? A. Yes. Q. I think you were asked a question that may have had two parts about whether the digger got reassembled after the hydraulics got measured. Could you just clarify whether the hydraulics got measured? A. I don't think the hydraulics got measured, and the reason being he give he when he pulled the digger apart to do the repairs for Shane, he found a number on the rams and then there was no need to measure them, and the price he gave him was too dear and I rejected it because he originally told me he was going to make them himself, not get someone else to make it. Q. Just coming back to my question. A. Sorry. Q. Did the hydraulics to your knowledge get measured? A. No.

Consideration

1. First, although this claim by the Applicant to have the First Respondent pay $10,000 towards the cost of the Parkes Hydraulics' invoice was not the subject of a specific claim as set out in the elements of relief sought in the Amended Summons, it is clear that I do have jurisdiction to hear and determine this aspect of the dispute between the Applicant and the First Respondent. This arises as a consequence of s 22 of the Court Act, a provision in the following terms: 22 Determination of matter completely and finally The Court shall, in every matter before the Court, grant either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by that party in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided.
2. It is in the context of this power that I turn to consider this dispute concerning whether or not the First Respondent owes the Applicant a $10,000 contribution toward the cost of the works undertaken by Parkes Hydraulics.
3. The first matter to be observed arises from the correspondence referred to by the First Respondent at the end of [113], and at the end of [114], set out in the earlier extract from his affidavit of 26 September 2018. I have carefully read this correspondence. The first extract referred to was reproduced in the Court Book at folios 462 to 475. It primarily relates to an exchange of e-mails and other correspondence between the Applicant and Mr Ian Allen of Parkes Hydraulics with a number of handwritten invoice or works' records documents interspersed. Although I have carefully read this material, it provides little assistance beyond the fact that it is clear that elements of the work undertaken by Parkes Hydraulics were understood by that firm to be being undertaken on behalf of the First Respondent.
4. The second tranche of material comprises two letters written by the First Respondent. The first of them, at folios 476 and 477, is headed "Arbitration between Mr Shane Morris and Mr Ian Allen of Parkes Hydraulics Services". It is introduced with the opening comments: As requested, I am providing the following information to assist with understanding the work commissioned by Mr Morris at Parkes Hydraulics Services.
5. It is unnecessary to set out, in any detail, what is contained in this document by which the First Respondent addresses his understanding of a range of matters concerning what was done, or to be done, by Parkes Hydraulics with the Applicant's Super Digger.
6. It is, however, clear that, at the very least, the First Respondent acknowledges that there was an intention that Parkes Hydraulics would undertake some activities concerning the Applicant's Super Digger for the purposes of the building of a Super Digger for Martin. This letter also acknowledges that the First Respondent was aware that Parkes Hydraulics was also to undertake some repair works on the Applicant's Super Digger.
7. It is to be observed that this letter is undated.
8. The next document is a letter from the First Respondent to Mr Allen of Parkes Hydraulics. It is dated 14 March 2016 and is reproduced at folios 478 to 481 of the Court Book. The letter is in somewhat combative terms (commencing, before dealing with matters of detail, by stating that he is writing "concerning your unprofessional conduct"). The first approximately two-and-a-half pages disputes the extent (if any) to which the First Respondent might owe money to Parkes Hydraulics for services provided by that enterprise. The final portion of the letter (from the middle of folio 480 to the end of the document) disputes why the First Respondent should be being invoiced for works carried out on or in connection with the Applicant's Super Digger. It is appropriate, for present purposes, to quote the final dot point on folio 480 and the second dot point on folio 481. These are in the following terms: • Why my son Mr Martin Hutchison (a third party completely unrelated to Mr Morris) has received details of Mr Morris's invoice for repairs to Mr Morris's digger makes no sense to me. I would assume invoices and business correspondence should be intended only for the customer paying. This is how most professionals conduct business in my experience. Further, I do not understand why I have been listed on service reports as it was repeatedly advised by myself and Mr Morris that this was not my job as it is not my digger. … • Finally, what concerns me most are the unsubstantiated claims that Mr Morris and I are in somewhat acting in tandem to use the services of Parkes Hydraulics Services without payment for our own benefit. I quote: "At the end of the day I feel both you and Owen have set Parkes Hydraulics Service up, Owen has used your machine to gain all the information required to build his own, you have received a full rebuild and basically have a new machine and we, Parkes Hydraulic Services have allowed you to take the machine prior to payment as we felt you were both honourable characters. For all the work Owen wanted done, he then cancelled any future work as the cylinders in your machine are different to those quoted by the original Manufacturer and after I had drawn all the cylinders for my alternate supplier, received a quotation of $5,000 less which I passed onto Owen who advised he had gone a different way."
9. It is also to be observed that the bundle of e-mails and workshop notes/costing sheets referred to above and carried into evidence by virtue of [113] of the First Respondent's affidavit of 28 September 2018 were not objected to by Ms Ashworth. The same position applied with respect to the two documents brought into evidence by virtue of their being referenced in [114] of the same affidavit.
10. That which is to be drawn from the documents referenced at [113] of the affidavit is confined, relevantly, to the limited extent I have already set out.
11. With respect to the two documents in evidence via [114] of the affidavit, it is clear that the first of them (although undated and only first in sequence in the Court Book, it is inferred to be first in time as its tone is entirely supportive of the Applicant in his dispute with Parkes Hydraulics) does not, in its terms, evidence any dispute between the First Respondent and the Applicant over matters concerning whatever work was proposed to be undertaken or had been undertaken by Parkes Hydraulics on the Applicant's Super Digger.
12. However, the second of the documents (the letter of 14 March 2016 addressed to Mr Allen of Parkes Hydraulics) clearly discloses that, by that date, there was a three-sided dispute involving the First Respondent, the Applicant and Parkes Hydraulics. It is from this letter that I have, earlier, extracted what I consider to be two relevant elements.
13. I now turn to what conclusion I consider it appropriate to reach concerning the confined element of whether or not, utilising the power given to me by s 22 of the Court Act, it is appropriate to make some order to resolve what the Applicant says is his claim to be indemnified to the extent of $10,000 by the First Respondent of the amount invoiced to the Applicant by Parkes Hydraulics.
14. Resolving this limited aspect of the conflict concerning works undertaken by Parkes Hydraulics to the Applicant's Super Digger follows from two elements to be derived from the evidence in these proceedings. The first of those elements comes from the material imported via [113] and [114] of the First Respondent's affidavit as earlier discussed. This material makes it clear to me that, despite the position advanced on behalf of the First Respondent that no works were contemplated to be, or actually were, undertaken on the Applicant's Super Digger on behalf of the First Respondent (whether for his own purposes or for Martin's purposes being irrelevant), that proposition is demonstrated to be false by this material.
15. The second, broader reason why I am unable to accept the position advanced by the First Respondent that I should not accept that he bore any financial responsibility for any element of the cost of works undertaken on the Applicant's Super Digger is by general conclusion earlier explained that, whenever there is an evidentiary conflict between the Applicant and the First Respondent, the Applicant's evidence is to be preferred. That is here the position. This position is reinforced, specifically, by the first of the evidentiary elements discussed immediately above.
16. I am therefore satisfied, to the degree of comfortable satisfaction appropriate in the circumstances (Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34), that work was undertaken on the Applicant's Super Digger for the benefit of the First Respondent and/or Martin and, therefore, that the First Respondent should make a payment to the Applicant to enable the Applicant to discharge the relevant portion of the Parkes Hydraulics' invoices (if the Applicant has not already paid them in full) or to reimburse the Applicant for the appropriate portion of those invoices (if the Applicant has already discharged the indebtedness to Parkes Hydraulics).
17. As there was nothing advanced by the First Respondent disputing detail of the quantum (merely a denial that there was any liability at all), it is appropriate that the amount to be provided for in the order resolving this element of the dispute between the Applicant and the First Respondent be for the sum of $10,000.

Introduction

1. The rights conferred by the granting of a Mineral Claim run for a period of five years from the date of the registration of the claim. However, Mineral Claims are able to be renewed for further five-year periods. If a renewal application is made by the holder of a claim, the renewal is, effectively, automatic. If not renewed, the claim and its attendant rights lapse. Upon such lapsing, an application may be made by a new person to be granted the right to work that claim for a fresh period of five years. The present right of the First Respondent to Claim 1 (and Claim 2 on the basis of my earlier finding concerning the true ownership of that claim) expires in late December 2019.
2. I gave Ms Ashworth and Mr Stretton the opportunity to provide me with short supplementary written submissions on what might be the available powers with respect to renewal of these claims should the necessity arise in the overall structure of the outcomes of these proceedings to consider addressing those points.
3. However, given the conclusions I have reached and the remedies I have ordered, it is unnecessary to make any determination on this point.

The appropriate remedies to be ordered

1. The Applicant gave evidence (Transcript, 18 March 2019, page 92, line 24 to page 93, line 1) concerning the present state of his relationship with the First Respondent. The evidence was in the following terms: Q. Anyway, you say you can't trust Owen and he's caused you a fair bit of trouble. You agree with that? A. Yes. Q. You dislike him now? A. I wouldn't say dislike, no. Q. Not particularly fond of him though? A. Not fond of him, no. Q. And as things currently stand, you don't want to work with him anymore, do you? A. I didn't work with him; I worked for him. Q. You don't want to work for him anymore, do you? A. No. Q. In fact, one of the things you were asking for in your affidavit of 28 August 2018 was that you would get 56861 and he would get 56862. Correct? That's one of the things you were asking for? A. One of the things, yes. Q. Or alternatively, you were suggesting that the claims be split between you? A. Yes. Q. And the point of any split, of course, was that you wouldn't have to work together or for each other, wasn't it? A. Yes.
2. It is also clear from the First Respondent's actions in blockading the Applicant from access to Claim 1 and the First Respondent's general position in response to these proceedings that the First Respondent also accepts that the mining relationship between him and the Applicant is, effectively, at an end.
3. As it is clear that the working relationship between the Applicant and the First Respondent has irretrievably broken down, I am satisfied that the appropriate way to compensate the Applicant for the unlawful termination of the arrangement is to order the First Respondent to transfer Claim 1 to the Applicant within 14 days of the date of the orders I make in these proceedings.
4. The consequence of requiring the transfer of that Mineral Claim to the Applicant within that time period means that there is no necessity to address the question of whether or not I would have the power to order the First Respondent to renew Claim 1 prior to the date when it will otherwise expire due to the effluxion of time. The transfer of the Mineral Claim to the Applicant will leave it in the Applicant's hands to effect that renewal in his name should he wish to do so.
5. Although Mr Hawkins has been joined as the Second Respondent to the proceedings, in his capacity as the nominal owner of Claim 2, as the Applicant sought no specific order against the Second Respondent and as there is no cross-claim made by the First Respondent against the Second Respondent, there is no basis to make any orders against him. It was, however, appropriate that the Second Respondent be joined as a respondent, given that the arrangement between the Applicant and First Respondent encompassed both Claim 1 and Claim 2 and, for the reasons earlier set out, the First Respondent's continuing beneficial ownership of Claim 2 means that the Second Respondent holds that claim as trustee for the First Respondent.

Costs

1. Although the Applicant has not been successful on all of the elements founding his claims against the First Respondent, I am not satisfied that there is any appropriate basis to apportion costs, as the time spent on addressing the First Respondent's unlawful detention of the Applicant's Super Digger did not form a significant element of the contest at trial.
2. As a consequence, I am satisfied that the First Respondent should be required to pay the Applicant's costs on the ordinary basis, with this order being contingent on there being no notification, within 14 days of the date of the making of the orders, that a party wishes to be heard to propose some alternative costs order.
3. It is not appropriate to make any costs order against the Second Respondent.

Orders

1. The orders of the Court are: 1. Within fourteen (14) days of the date of these orders, the First Respondent is to cause title to Mineral Claim 56861 to be registered in the name of the Applicant; 2. The First Respondent is to pay any costs associated with the implementation of (1); 3. The Applicant's claim for compensation for the detention of the Applicant's mining equipment underground on Mineral Claim 56861 dismissed; 4. Pursuant to s 22 of the Land and Environment Court Act 1979, the First Respondent is to pay the Applicant, within 28 days of the date of these orders, the sum of $10,000 for works on the Applicant's Super Digger undertaken for the benefit of the First Respondent; 5. The First Respondent's cross-claim is dismissed; 6. The First Respondent is to pay the Applicant's costs of these proceedings as agreed or assessed unless a party notifies my Associate within 14 days of the date of these orders that that party wishes to be heard to propose some alternative costs order; and 7. The exhibits are returned.

Annexure A Appendix A - emergency grid map - holes A, B, C E, digger (86.0 KB, pdf)

Annexure B Appendix B - geotech report - folio 582 (28.1 KB, pdf)

Annexure C Appendix C - Morris explanation of mine plan - folio 480 (234 KB, pdf)

Annexure D Appendix D - folio 419 - diary pages (151 KB, pdf)

Annexure E Appendix E - folio 82 - note of expenses (75.5 KB, pdf)

Annexure F Appendix F - bottle photo - folio 435 (1.55 MB, pdf)

Annexure G Appendix G - bottle photo - folio 436 (1.41 MB, pdf)

Annexure H Appendix H - E2 - pole in boundary hole tape is in 56735 (493 KB, pdf)

Annexure I Appendix I - Map - Claim 56735 (174 KB, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 November 2019