PARKINS v LIGHTNING RIDGE MINERS ASSOCIATION LIMITED

Mining Act 1992 Supreme Court Act 1970 LEGISLATION CITED : Mining Amendment (Miscellaneous Provisions) Act 2004 Interpretation Act 1987 Factories Shops and Industries Act 1962

CSR Limited v Chief Commissioner of State Revenue (2006) 68 NSWLR 440 Workers' Compensation Board of Queensland v Technical Products Pty Limited (1988) 165 CLR 642 Federal Commissioner of Taxation v Scully (2000) 201 CLR 148 Trustees Executors & Agency Co Limited v Riley [1941] VLR 110 Australian Iron & Steel Pty Limited v Luna (1969) 44 ALJR 52 CASES CITED : Kioa v West (1985) 159 CLR 550 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 Chaina v Alvaro Homes Pty Limited [2008] NSWCA 353 Cohen v McMillan (1998) 348 NSWLR 476 Hachem v Cimijolta (1996) 24 MVR 192 Fugen Holdings Pty Limited v Howle [1999] NSWCA 103

PARTIES : Kevin William PARKINS v LIGHTNING RIDGE MINERS ASSOCATION LIMITED

COUNSEL : P: M J Leeming SC/I G Archibald D: N Carney

SOLICITORS : P: Garland Hawthorn Brahe D: Moore & Co

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

KEVIN WILLIAM PARKINS v LIGHTNING RIDGE MINERS' ASSOCIATION LIMITED

(A) INTRODUCTION 1 The plaintiff, Kevin William Parkins, by Further Amended Summons filed in Court on 6 April 2009, appeals from a decision of the Warden's Court of 9 April 2008 given under s.236G of the Mining Act 1992 (the "Act"). 2 The appeal relates to a determination by the Chief Mining Warden sitting as a Warden's Court exercising the jurisdiction provided for by s.236G of the Act to hold "an inquiry" for the purpose of determining an Access Management Plan ("AMP") for "small-scale titles" (mineral claims and opal prospecting licences) in respect of the property "Wyoming" situated at Lightning Ridge, New South Wales ("the land"). 3 Mr M J Leeming SC appeared with Mr I G A Archibald of counsel on behalf of the appellant. He relied upon written submissions dated 4 March 2009 which were supplemented with oral submissions during the course of the hearing. Supplementary written submissions dated 9 April 2009 addressed points arising during the hearing. 4 Mr Niall Carney of counsel appeared on behalf of the respondent Association. He relied upon written submissions dated 30 March 2009 supplemented by his oral submissions. 5 The plaintiff's land is operated as a farming/grazing property. 6 The defendant, Lightning Ridge Miners' Association Limited ("the Association"), is the duly appointed miners' representative in proceedings brought in the Warden's Court by the secretary of the Association, Ms Maxine Anne O'Brien. 7 A copy of the particular AMP determined by the Chief Mining Warden (Exhibit B at p.802) identifies the property as constituting eight blocks known as 23A, 23B, 31A, 31B, 31C, 31D, 192 and 193. It is located in opal prospecting areas 1 and 2. 8 It was submitted on behalf of the plaintiff that s.321 of the Act, which provides for the making of appeals against orders made by the Warden's Court is engaged, notwithstanding that the requirement in this case on the Warden to hold the inquiry was one under Part 10A. In this respect, it was noted that Part 15 of the Act establishes the Warden's Court and s.296 provides it with jurisdiction to hear and determine proceedings relating to any of the following matters:- "(b1) Any question or dispute arising as to:- (i) a right of way, right of access to water or right of entry conferred by or under this Act, or (ii) any condition imposed by or under this Act (including any condition imposed pursuant to a registered access management plan) on a person's exercise of any such right of way, right of access to water or right of entry. … (d) Trespass or encroachment on … land subject to an authority or mineral claim ... … (k) Trespass or encroachment on, or injury to, land as a result of prospecting or mining. … (l) … any matter affecting, roads … or other property of whatever kind constructed, held or occupied under this Act. … (n) Any question or dispute arising as to the working or management of land subject to an authority or mineral claim. (o) Any rights claimed in, under or in relation to an authority or mineral claim or purported authority or mineral claim. … (u) Any question or dispute as to the provisions of an access arrangement or as to any matter arising as a consequence of such an arrangement. … (y) Any other question or dispute or offence in respect of which jurisdiction is conferred on the Court under this Act." 9 The plaintiff in written submissions (paragraph 23) also relied upon the provisions in Division 7 of Part 15 including, in particular, the provisions of s.334, s.336 and s.337.

(B) THE APPEAL PROVISIONS: s.321 10 Section 321 of the Act provides:- " 321. Appeals to District Court and Supreme Court 1. An appeal against an order made by a Warden's Court under this Part:- (a) may be made to the District Court under Part 3 of the Crimes (Local Courts Appeal and Review) Act 2001 ; or (b) may be made to the Supreme Court under Part 5 of the Crimes (Local Courts Appeal and Review) Act 2001 , as if that order were a sentence arising from a Court Attendance Notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986. 2. The Crimes (Local Courts Appeal and Review) Act 2001 applies to an appeal arising under sub-section (1) with such modifications as are made by or in accordance with the regulations under that Act." 11 It was submitted for the plaintiff that he has a right of appeal to this Court under s.321 in addition to any right of review for error of law under s.69 of the Supreme Court Act 1970. Mr Leeming observed that, by reason of the particular grounds of appeal, little may turn on this point as there is no dispute as to the availability of a review under s.69 of the Supreme Court Act. 12 The decision of the Chief Mining Warden was handed down on 9 April 2008. A copy of it is included in Exhibit B at pp.766 to 801. The decision was adverse to the plaintiff in that it was held, in effect, that the provisions of the Act which authorised the Warden's Court to determine an "access management plan" (s.236D) do not empower it to impose conditions concerned with the disposal of mullock or the removal of mullock dumps from the property or matters relating to the storage or disposal of mullock. 13 In the summons, the plaintiff seeks to have the decision and the AMP set aside and for the original application for determination lodged by Ms O'Brien to be remitted to the Warden's Court for re-determination according to law.

(C) PLAINTIFF'S EVIDENCE 14 The plaintiff relied upon the following:-

(1) Affidavit of Kevin William Parkins sworn 15 October 2008 and Exhibit "KP-1" thereto. (2) Affidavit of Stephen Edward Martin sworn 17 October 2008 and Exhibit "SEM-1" thereto.

(3) Affidavit of Stephen Edward Martin sworn 9 February 2009.

(4) Document entitled "Collective Rehabilitation Bond Deed of Agreement" between Lightning Ridge Miners' Association Limited and NSW Department of Primary Industries. 15 Tendered in evidence were three folders of documents entitled Plaintiff's Tender Bundle. They were marked as Exhibits A, B and C.

(D) PROVISIONS OF THE MINING ACT 1992 RELATING TO "SMALL-SCALE TITLES" AND OTHER MATTERS 16 Part 10A of the Act was inserted by the Mining Amendment (Miscellaneous Provisions) Act 2004 (the "amending Act"). It appears that the AMP in question in these proceedings is the first such plan to be determined by the Warden's Court under the amending provisions 17 Section 236B, one of several provisions constituting Part 10A of the Act, provides that the Director-General of the NSW Department of Primary Industries may, by order published in the Gazette, constitute any land within a mineral claims district or opal prospecting area an access management area. The Director-General may, by that order or a subsequent order duly published, name the area and fix its boundaries. 18 The provisions of Part 10A apply to two forms of title. Reference to these has already been made above. The first is what are referred as mineral claims and the second, "opal prospecting licences" (OPLs), collectively referred to in s.236A(1) of the Act as "small-scale titles". Part 10A applies to such titles with respect to land within an access management area. 19 By s.236B, the Director-General may, by order, published in the Gazette constitute any land within a mineral claims district or opal prosecting area as an access management area. A copy of a letter from the Director-General dated 23 April 2007 in this respect was attached to the application by Maxine O'Brien to the Warden's Court in this matter (p.5 of Exhibit A). A copy of the order made as gazetted is to be found at p.349 of Exhibit A. The order was gazetted on 1 August 2005. 20 Section 236C of Part 10 of the Act provides that an AMP for land within an access management area may be agreed between a miner's representative and the landholder, or it may be determined by the Director-General or a Warden's Court in accordance with that Part. 21 The issues identified in the application included "mullock dumps and opal puddling dams" in relation to which it was stated:- "The location and means of disposing of mullock and the processing of all material has been an issue in almost every opal field at Lightning Ridge. The problems include the location, size and management of mullock dumps, access to mullock dumps and management of 'noodlers' on the dumps, access to surface water for opal puddling and haul road routes." 22 The Director-General's Supplementary Submissions to the Warden's Court are included in Exhibit B (at pp.755 to 765). The issue as to the matters that may be included in an AMP by a determination under s.236G of the Act is addressed at pp.761 to 764 of Exhibit D. 23 The following observations were made in those submissions:-

• The provisions of s.236D(1)(a) and (b) "are extremely broad in their scope" .

• The matters referred to in sub-paragraphs (a)(i) to (iii) and sub-paragraphs (b)(i) to (iv) were inclusive only and did not limit the matters that the AMP could address in relation to rights of access.

• The issue was one of "nexus … If the issue in question is related to access for the purposes of exercising rights granted on the holder by the claim or licence, it is a matter that can be included in an AMP determined by the Warden, regardless of whether or not the parties have each agreed to the terms included in the AMP …" (at p.762).

• The number of matters specified (including "mullock management" ), the Director-General submitted, were issues that could be included in an AMP to be determined by the Warden in accordance with s.236G(2) (at p.763). 24 In response, it was submitted for the Association, that in relation to mullock (Exhibit A, p.61):- "Mining activities on the mineral claim are unrelated and irrelevant to an AMP." 25 Section 236E provides that a miner's representative may serve on a landholder, a notice of his or her intention to negotiate an AMP in respect of the land. The miner's representative and the landholder may agree in writing on an AMP and, in that event, the plan is filed with the Director-General for registration. 26 By s.236F of the Act, in the event that a miner's representative and landholder are unable to agree on an AMP within 60 days, either one of them may apply to the Director-General for a determination of the AMP. 27 Upon receipt of an application, the Director-General may determine an AMP or the Director-General may decline to make such a determination, either generally or in relation to any particular matter. In that event, the Director-General must cause written notice of that fact to be served on the miner's representative and the landowner. 28 In the abovementioned letter of 23 April 2007 (Exhibit A, p.5), the Director-General declined to determine the AMP. 29 Where the Director-General declines to make such a determination, s.236G provides that either the landholder or the miner's representative may then apply to a Warden's Court for a determination under that section. 30 Upon receipt of such an application, the Warden's Court is required to hold "an inquiry" into the matter. Following the inquiry, that Court is to determine an AMP for the land concerned. The Director-General is not a party to the proceedings but is entitled to make written submissions to the Warden's Court. Where that is done, in making its decision, the Warden's Court must give full consideration to any such submissions by the Director-General. 31 The proceedings in this matter were commenced in the Warden's Court on 28 May 2007 by an Application for Determination of Access Management Plan by Warden's Court filed by Maxine O'Brien as the "duly appointed mining representative" of the Lightning Ridge Minders' Association Limited in the Warden's Court on 28 May 2007. 32 A hearing, being part of the inquiry, was conducted by the Chief Mining Warden sitting as the Warden's Court. That hearing was conducted at Lightning Ridge on 27 November 2007, at Walgett on 28 November 2007 and at Lightning Ridge on 29 November 2007 and 11 March 2008. 33 As earlier mentioned, on 9 April 2008, the Chief Mining Warden handed down his decision together with the AMP as determined by him. The relevant terms of the decision are set out in paragraph [68].

(E) FACTUAL MATTERS 34 The plaintiff purchased the property "Wyoming" in 1986. It is located approximately 15 kilometres from Lightning Ridge and is held under Western Lands leases 4643 and 5352. Copies of the Land Title searches relating to the leases were included in Annexure F to the affidavit of Maxine Anne O'Brien sworn 26 November 2007. Copies of the leases and their conditions were included at pp.251 to 264 of Exhibit KP-1 to the affidavit of Kevin William Parkins, the plaintiff, sworn 15 October 2008. 35 The documentation at p.205 of the plaintiff's tender bundle records a grant of a lease "reserving" to the State of New South Wales "all minerals as defined in the Mining Act 1906 or any Act amending the same and all metals, gems, precious stones, coal and mineral oils". Reservation extends "for any person lawfully authorised in that behalf to enter upon the said land and search for work, win and remove all or any of the said minerals, metals, gems, precious stones, coal and mineral oils". 36 Condition 17 of the lease provides:- "That the lessee shall permit any person duly authorised in that behalf to enter upon the said land and search for work win and remove all or any minerals, metals, gems, previous stones, coal and mineral oils in under or upon the said land." 37 Within the various opal prospecting blocks (OPBs) there are many prospecting licence areas and mineral licence claim areas. 38 At the time of purchase, there were apparently no more than 10 mineral claims on the property. 39 A "Mineral Claim" under the Act is the title pursuant to which an opal miner mines the land. A mineral claim is granted for areas that measure 50 metres by 50 metres. An OPL, the other form of title under the Act, permits the holder to enter the property and to drill sample drill holes in a defined area. 40 According to the affidavit evidence of Mr Parkins, his present estimate is that there are now between 250 and 350 current mineral claims on the property. 41 The property is used by him for running cattle and farming and, according to his evidence, he is upgrading the quality of his herd. In addition, the plaintiff has achieved significant improvements in constructing hay and grain storage facilities and a water harvesting scheme using contour banks. He has also been in the process of building new cattle handling facilities and wishes to install a feed lot. Approximately 800 acres of the property are farmed and he is a participant in a water "cap and pipe" scheme known as the Angledool Bore Trust. 42 The evidence establishes that the property is divided into two soil types referred to as the red soil and the black soil. The location of the soil types is depicted in the plan at p.621 of Exhibit B. Opal mining only occurs on the red soil country which is also used for the running of livestock. The black soil areas of the property are predominantly used for farming but are also utilised for some livestock production. 43 In his affidavit sworn 12 October 2007, Mr Parkins expressed his concern as to the impact of opal mining on his property and referred to his desire to minimise it. He stated that the AMP is an important element in the process of minimising such impact. His concern was stated to be based upon observations he has made of other properties in the district which he claimed had lost land for agricultural production through opal mining. He has expressed his concern as a real possibility that over time all of the "red" country will be permanently lost to all future agricultural production:- "24. My primary concern in securing an appropriate Access Management Agreement in these proceedings, and in relation to opal mining generally on the Property, is that based on my observations as to what has occurred on other properties in the district, there is a real possibility that over time all of the area shown in pink on page 4 of the exhibit, that is all of the 'red country', will be permanently lost to all future agricultural production. 25. I have observed that in the Lightning Ridge District the properties 'Lorne Station' 'Muttabun Station' and 'Roxburgh' have been either wholly or extensively permanently lost to agricultural production through opal mining. 26. Pages 12 to 15 of the exhibit are aerial photographs of Lorne Station. I have observed that out of an original 4,000 hectares (approximately) of 'Lorne Station which was used entirely for agricultural production there is now only 800 hectares used for agriculture. 27. I have observed that 'Muttabun' has lost approximately 66% of its agricultural land, and 'Roxburgh' has lost approximately 30% of its agricultural land. I seek to avoid what has occurred at these properties. If such an outcome were to occur it would cause a major financial loss to me, except to the extent if any that I can secure adequate compensation under the Mining Act 1992. 28. Accordingly in order to minimise the necessity for me to endeavour to use the compensation provisions of the Mining Act, I seek to take all precautions I can to minimise the impact of opal mining on the Property. The Access Management Agreement is an important element of that process. … 34. Invariably, and both in the case of the sloping red soil country and the area around a box hollow, once mining has taken place there is a pile of mullock. Over time and particularly after rain, the mullock washes outside the boundaries of the mineral claim and onto the Property. I am concerned that no measures are being taken to prevent this and permanent damage is already occurring. 35. My observation is that once the mullock washes outside the boundaries of a mineral claim and onto the Property, the salts from the mullock sterilise the soil for further agricultural production. … 62. I propose that there be conditions providing for the removal by Lightning Ridge Miners' Association Limited of the three communal mullock dumps which are presently on the property. The location of the mullock dumps are shown on page 18 of the exhibit. 63. Photographs of the mullock dumps on the Property are shown on page 20 of the exhibit. 64. Pages 21, 22, 23 and 24 of the exhibit show photographs of communal mullock dumps at the Sheepyard and Grawin opal fields. 65. I am very concerned that unless the dumps presently on the Property are removed and there be no further access for any such dumps, I could be facing the same situation as obtains at Sheepyard and Grawin. I consider that these dumps would have a significant impact on the value of my property and present an environmental hazard in terms of erosion hazard, dust and impact on visual amenity." 44 The plaintiff's reference to p.4 of the exhibit is a reference to the document in Exhibit B, at p.621. 45 In order to aid in the understanding of factual matters, a brief reference to the expert's report of Ms Allan follows. In that report, Exhibit A, at pp.243 to 348, the following matters are noted:-

• Mining activities comprising both prospecting activities and mining activities are confined to the hilly ridge country.

• Access to prospecting and mineral plan areas is gained from the primary access track that enters the property from the Castlereagh Highway approximately 15 kilometres north of Lightning Ridge or from an unnamed road directly to the north of Lightning Ridge. The primary access track is said to have been a well maintained gravel access road approximately six metres wide and used in connection with both farming and mining activities.

• Evidence of prospecting was widespread. Prospecting involves drilling auger holes using a truck mounted drill rig.

• Within the claim areas, waste material is stockpiled. The stockpiles comprise waste rock and loose soil material. At times unprotected stockpile material spreads through wind, water and erosion over claim areas and beyond.

• Centralised mullock dumps have been introduced throughout the site. Mullock is removed from individual claim areas to the central mullock dump. At the central dump there are large stockpiles of mullock to a height of two to three metres.

• The stockpiles are unmanaged and there are no sediment or erosion controls or protective measures in respect of vegetation.

(F) MULLOCK OR WASTE RESULTING FROM MINING OPERATIONS 46 Although the principal issue in this appeal involves a question of statutory construction, I set out below some factual matters concerning mullock or waste. 47 In a report commissioned by the Department of Primary Industries, the following section appears (Exhibit A, p.371):- "2.3.4 Management of Mullock and Waste Waste soil and rock from mining operations is termed 'mullock'. This material is removed immediately from the site and delivered to one of a series of centralised mullock dumps established throughout the Reserve by the Department of Mineral Resources. Some mullock is stored on site to backfill any shafts left after mining is concluded. Centralised mullock dumps were introduced over 12 years ago through progression of mining practices and as a response to changes in rehabilitation standards. Centralised mullock dumps are not required on preserved fields. When a dump is full, the dump area is either revegetated or retained to be utilised as material for filling shafts. The Department of Mineral Resources is currently evaluating a number of applications by private individuals to reprocess the material found in mullock dumps in the area." 48 In the final report dated October 2007 commissioned by the plaintiff and entitled "Wyoming Access Management Plan Environmental Report", the issue of mullock or waste is considered in paragraph 3.2, Mining Activities (p.262 of Exhibit A). The discussion in the report distinguishes between:-

(1) The presence within mineral claim areas of what is described as "highly compacted soils, stockpiles of waste (mullock) and oil and fuel storage areas" (p.263). Reference is made to evidence of prospecting being the waste material (mullock) that remains at the surface after the operation.

(2) The stockpiling of mullock and refuse that has occurred beyond particular claim areas and which spread on to adjacent land (p.263).

(3) The presence of communal mullock stockpiles. 49 In relation to (1) and (2) above, the report referred to "unprotected stockpiles situated adjacent to water courses" (p.264) in the discussion of waste materials in claim areas. An observation is made concerning what is said to be the unprotected stockpiling of such materials being spread by wind, water and erosion "… over the claim areas and beyond" (p.264). The effect of stockpiling on claim areas and beyond is stated to cause dieback of vegetation. 50 In relation to (3) above, the "centralised mullock dumps", the report refers to mullock being removed from individual claim areas to the central mullock dumps and at the central dumps there are said to be large stockpiles of mullock to a height of two to three metres. The complaint is that such stockpiles are said to have been "unmanaged" and there were no sediment or erosion controls. Additionally, there was said to have been a disregard for vegetation. There is reference to the fact that stockpiling around trees "… is creating visible signs of dieback in the vegetation on the stockpile sites" (at p.264). 51 The Chief Mining Warden correctly noted in his decision given on 9 April 2008 (Exhibit B at p.781) that the three mullock dumps on the "Wyoming" property are not located on any registered mineral claim or mining purpose lease. He also noted the defendant association's position that it was not responsible for removing them. 52 In the plaintiff's initial submission document, apparently prepared prior to his retainer of legal representations, the plaintiff confined the issue of mullock in the following terms (Exhibit A at p.26):- " MULLOCK Any excess mullock beyond that required for the backfilling of mine shafts must be transferred to a mullock dump (refer to the attached plan for the location of mullock dumps). Mullock is to only be dumped inside the boundaries of the dump and progressively fill it in one direction. Mullock must not be dumped at any location other than an approved mullock dump." 53 Mr Leeming SC identified the documents in Exhibit A that were said to "crystallise" the issues concerning mullock and "mullock removal". The particular documents in question are those numbered 61, 81, 97, 103, 109, 110 and 111 of Exhibit A.

(G) ISSUES AND PROPOSED CONDITIONS CONCERNING MULLOCK AND MULLOCK DUMPS 54 An examination of the last-mentioned documents reveals the nature of the issues that were raised in the plaintiff's document in the Warden's Court concerning mullock in response to the application for a determination of an AMP. The documents also refer to suggested solutions or proposals propounded by the plaintiff to the Warden's Court said by him to be appropriate or necessary in dealing with the abovementioned issues. 55 The position in relation to these matters may be summarised as follows:-

(1) A central issue in the proceedings concerned "the communal mullock dumps" , three in all, that are presently located on the property and are located outside the boundaries of current mineral claims.

(2) The plaintiff's primary or principal proposal to deal with the communal mullock dumps was for their removal.

(3) Under the proposal, the plaintiff contended that the holders of the mineral claims on the property and the Lightning Ridge Miners' Association Limited should be made responsible for the removal of the communal dumps.

(4) The plaintiff also contended that conditions should be imposed by the AMP for contributions to be paid towards the cost of such removal. One aspect or "mechanism" in the plaintiff's proposal was for the removal of the dumps by the "Landowner or the Department of Primary Industries at the cost of either the mineral claim holders or the Association" .

(5) It was further contended that the conditions to be imposed should also establish a scheme that was to apply to all existing and future mineral claims whereby such "large-scale dumps" would not be permitted in the future.

(6) A further proposal (not concerned with communal mullock dumps as such) was advanced by the plaintiff in relation to the position following removal of the communal dumps. Specifically, the conditions proposed would operate:- (a) To prevent access to the property for any person to store mullock or waste product from mining operations outside the boundary of the prescribed mineral claims from the particular mineral claim from which it was produced. (b) To prevent access for the purpose of transporting mullock, the product of any particular mineral claim, onto any other mineral claim. (c) To require mullock which was not required for backfilling on cessation of mining activities, to be removed from the property at intervals of not less than two years.

(7) Further conditions were proposed by the plaintiff relating to what was referred to as a "practice" involving mullock. This was described as "the current practice of permitting the unrestrained draining and washing of mullock away from mining titles" . Mr Parkins referred to this aspect in his affidavit sworn in the Warden's Court proceedings on 12 October 2007 (paragraphs 34 to 39). The proposed conditions were said to be directed to preventing access "on or over the Property for the purposes of draining, washing and spreading of mullock whether by natural, mechanical or any other means" .

(H) COMMUNAL MULLOCK DUMPS 56 The plaintiff contended that, although he was at all material times the landholder, he had not made a "formal grant of access … or other licence permitting the establishment of communal mullock dumps" (Exhibit A at p.109). 57 Evidence was given of the origin and nature of the communal mullock dumps (Exhibit C, transcript, pp.106 to 107). Mr Panich is a mining engineer and an opal miner and has been a Director of Lightning Ridge Miners' Association for five years, two years of that as President. He gave evidence in relation to communal mullock dumps at Exhibit C, transcript, pp.953 to 954 and p.978. 58 Mr Panich stated (Exhibit C, transcript, p.953) that the three communal mullock dumps were areas that the Department of Primary Industries "… has made to allow the dumping of mullock so that it minimises the amount of mullock being dumped on the claims and also to allow people to back-fill claims to go to a communal mullock dump and used to be back-filled. Most of the waste at that particular area at Wyoming is taken to the processing sites of which there are four quite close to town". 59 He referred to "the current practice" as a directive from the Department of Primary Industries (DPI) involving a limit as to the amount of waste that can be stored "in your own claim". 60 The plaintiff stated that he had never entered into an agreement with anyone in relation to the communal mullock dumps. He stated (Exhibit C, transcript, p.1026):- "No, I have not. When the mullock was first talked about, it was talked about - I'm not sure of what position the gentleman held, but Mathew Goodwin was working for the Department at the time. It was a - it seemed to me it was a rushed thing that 'we've got to put mullock dumps out on your place, Kevin'. There was no formal agreement of any description, no. It was just we've got to have mullock dumps. I didn't know my legal standings or anything along those lines and obviously there really aren't any. There's - I'm stuck with three piles of mullock that I don't want and never have wanted." 61 He was asked (at p.1027):- "Q. Have you observed those mullock piles to increase over time? A. Yes, I have. They've fluctuated. They've gone - but they have - in general they have increased. One mullock dump has decreased to nearly zero. I would say that I would probably be one of the major factors in that, that I probably was the one that cleaned the last mullock out of that mullock dump. Q. And what was that for? A. To backfill an open cut. Q. So, is it your position that you would like to see those mullock dumps removed? A. Most definitely. Q. And do you have a proposal in relation to removing those mullock dumps? A. Yes, I do, yes. Q. Could you outline to his Honour what that is? A. Your Honour, what we propose that the mullock dumps are identified individually as to where they are, of course. I would seek a suitable relocation site if it could be found. I believe there are several sites probably that would be suitable. There are open cuts that I believe the Department would like to have filled in in the town proximity. I think it has probably fallen a little late but what is now declared an historical site, which being the great hole in the ground at the Three Mile, otherwise, it would've been a suitable site. I also believe that as the Mines Association have MPLs where they wash their ore-body anyway, they have the capability of taking the mullock to those sites and there is at least two - there is at least two options that I would say are quite viable. Costing would be looked at …" 62 The Chief Mining Warden noted the submission made on behalf of the plaintiff, that the mullock dumps "… create an environmental concern …" (at p.16) and should be removed by the LRMA:- "Mr Parkins, in giving evidence, suggested that once the dumps are removed, miners could, without any real inconvenience or expense, when they take their opal dirt into the puddling sites, bring back a truckload of dried slurry for backfilling purposes." 63 The Chief Mining Warden then observed at p.16 of his decision:- "If this was done, a miner would have to stockpile the mullock on his or her claim, awaiting the rehabilitation phase of the mineral claim. The difficulty I see with that suggestion is that it would create, instead of 3 large mullock dumps, a small mullock dump on each mineral claim (there are about 170 registered claims at present). Sediment control of these smaller stockpiles would be more difficult than controlling the now existing 3 dumps."

(I) THE STATUTORY CONSTRUCTION ISSUE: s.236D(1) 64 The first ground in the Further Amended Summons raises the issue as to the proper construction of the Act's provisions relating to "access" in the following terms:- "1. The Mining Warden erred in his construction of 'access' in relation to the Access Management Plan and where appearing in Part 10A of the Mining Act 1992 ('the Act'). Particulars (a) The Mining Warden found that the Access Management Plan cannot contain provisions relating to the right or otherwise of a mineral claim holder to dump mullock on the landholder's land, (b) The Mining Warden found that an Access Management Plan cannot contain provisions requiring a person in this case the miners to remove mullock previously dumped on the landholder's land, (c) The Mining Warden found that he could not include in the Access Management Plan provisions directing that rehabilitation measures be undertaken to the landholder's land if damage is done outside the access routes provided for in the plan and the boundaries of a mineral claim. (d) The Mining Warden found that without the consent of the parties it was not open for him to include a condition in the Access Management Plan that the Lightning Ridge Miners' Association Limited (or any other person or body) remove the existing three mullock dumps from the landholders's [sic] property. (e) Failure generally to exercise his discretion in accordance with the subject matter, scope and purpose of the Act." 65 The provisions of s.236D(1) are in the following terms:- " 236D Matters for which access management plan to provide (1) An access management plan may make provision for or with respect to the following matters:- (a) the rights of access that the holder of a small-scale title has in relation to the land to which the plan applies, including rights in relation to:- (i) access points to the land, and (ii) routes of access across the land, and (iii) the manner in which, and the times at which, rights of access may be exercised, (b) the conditions to which the holder of a small-scale title is subject in relation to his or her exercise of any such right of access, including conditions in relation to:- (i) maintaining routes of access, and (ii) preserving the safety of persons and stock, and (iii) avoiding interference with the land management practices being adopted in relation to the land affected by the right of way, and (iv) environmental protection, (c) the manner of resolving any dispute arising in connection with the plan, (d) the manner of varying or replacing the plan, (e) such other matters as the parties to the plan may agree to include in the plan.

(2) In the event of an inconsistency between:- (a) a provision of an access management plan, and (b) a provision of this Act, the regulations or a condition of a small-scale title, the provision referred to in paragraph (b) prevails." 66 The issue for the Chief Mining Warden's determination involved a question of statutory construction, namely, the meaning and scope of the provisions relating to 'rights of access" in terms of s.236D(1) and the conditions that may be imposed in relation thereto. 67 The Chief Mining Warden noted that the three communal mullock dumps are not on any registered mineral claim or mining purpose lease and that they were, on the evidence, set up by the Department of Primary Industries to minimise mullock around the claims. 68 In his decision at pp.783 to 784 of Exhibit B, the Chief Mining Warden observed:- "I accept what Mr Archibald says in relation to the court having wider powers in imposing conditions than just those matter outlined in sub-section (1)(b)(i) - (iv). Nevertheless, there must be a limit as to the type of conditions which may be imposed under that sub-section. The issue is whether Parliament intended the powers to be that wide to allow the court to place virtually any condition into an access management plan. Nothing that I can see in the Minister's second speech on the Bill casts any light upon the interpretation to be placed on the sub-section. … Roads within 'Wyoming' are used to convey mullock to and from the dumps that have been created and the AMP should encompass those roads. However, a mullock dump is akin to a mineral claim, only insofar as once a road reaches a mineral claim, that concludes the role of the AMP. From thereon the conditions of the mineral claim take precedent [sic] for any activity upon the mineral claim itself. No reasonable interpretation of Part 10A would envisage an AMP could be utilised to create further conditions in respect of the actual mineral claim itself (other than a mineral claimholder is subject to the conditions of an AMP). Although an AMP creates a right for a miner to transport mullock over the roads to the mullock dumps, I cannot see how it can give a right to dump the mullock at the site unless there is some agreement between the landholders and the miners, under s.236D(1)(e). Alternatively, if the LRMA, or anyone, had a mineral claim over the area which is now a mullock dump, then miners could dump mullock on that site with the consent of the mineral claim holder. The moot point arises as to what is the position of miners who move off the road which is created in an AMP for the purpose of dumping mullock upon one of the currently designated mullock dumps? The answer to that question comes within the condition set down in the 'Management Plan for the Property of Wyoming'. That plan was created in consultation between the landholder, the LRMA and Government department personnel representing Western Lands and Mineral Resources; it specifically directs miners as to the dumping of waste at these locations. This management plan forms part of the conditions of mineral claims issued over the area. Just as the AMP cannot give the right to dump mullock in the currently designated areas, nor can it, in accepting the submissions of Mr Moore concerning sub-section (1)(e), create an obligation upon someone to remove those dumps, unless it is incorporated by consent in that sub-section. Accordingly, without the consent of the parties, there cannot be a condition of this access management plan that the LRMA (or any other person or body) remove the existing mullock dumps from 'Wyoming'." 69 The Chief Mining Warden's decision also contains the following observation (at p.790 of Exhibit B):- "… However, if damage is done outside the access routes and outside a claimholder's claim, I cannot see Part 10A, which provides for 'rights of access' being utilised to allow the incorporation into an AMP of a condition directing someone to rehabilitate outside a claim area …" 70 The AMP, as determined by the Warden's Court on 9 April 2008, stated by way of preface (at p.802 of Exhibit B):- "This Access Management Plan forms part of the conditions of any mineral claim or opal prospecting licence granted within the 'Wyoming' property. A breach of any conditions of this Access Management Plan is consequently a breach of the conditions of such mineral claim or opal prospecting licence and may be subject to appropriate sanctions by the Mining Registrar, which can include cancellation of the claim or lease. Section 373 Mining Act 1992 creates an offence for any person who prevents a claim holder or licence holder from legitimately exercising their rights under this Plan." 71 The "title holders" are identified in the AMP (at p.802 of Exhibit B) as:- "(1) Any person who is the current holder of a mineral claim or opal prospecting licence which is located within the property "Wyoming" and/or the agents or servants of such claimholder or licensee.

(2) Any person who is a potential applicant for a mineral claim who enters "Wyoming" for the purpose of marking out a claim, and/or the agents or servants of such person." 72 The AMP identifies Wyoming by reference to an attached plan (at p.814). The land is described (at p.802) as:- "All that piece or parcel of land situate near Lightning Ridge in the State of New South Wales, County of Finch, having an area of approximately 5742 hectares comprising:- • Western Lands Lease 4643 being the whole of the land comprised in Certificate of Title Folio Identifier 24676/764430 and • Western Lands Lease 5352 being the whole of the land comprised in Certificate of Title Folio Identifier 2465/764428." 73 Clause 4 of the AMP (at p.803) determined by the Warden's Court provides as follows:- "4. ACCESS Access to Opal Prospecting Blocks and areas of mineral claims shall only be via the roads and tracks nominated in the attached map, (marked '(a)') which are marked in a manner referred to in clause 8 hereunder, unless otherwise agreed in writing with the Landholder. Access from the roads and tracks nominated on the map to a mineral claim shall be by the shortest and most practicable route taking into consideration sensitive features of the area and wherever possible should be used by adjacent claim holders on a shared basis." 74 Clause 5 of the AMP provides for access roads and tracks as well as erosion and sediment control measures to be constructed in accordance with the principles in the documents "Guidelines for the planning, construction and maintenance of tracks" prepared by New South Wales Land & Water Conservation which are attached to the plan and identified with the letter "(b)". Provision is also made for the construction of culverts where an access road or track crosses an area where water will flow in times of water. 75 Clause 6 of the AMP deals with repairs to access roads and tracks. 76 Clause 7, "Access tracks to mining titles from primary access roads", provides that there shall only be one track extending beyond a Primary Access Road to each group of contiguous mineral claims and the title holders at all times are to use that single access track to travel to and from their claims, as far as practicable. 77 Clause 8, "Identification of primary roads and access tracks", provides that all roads and tracks are to be clearly signposted by the miners' representative as prescribed in that clause. 78 Clause 9, "Establishment of further internal primary access roads", provides that where titleholders wish to establish a new internal access road in addition to the Primary Access Roads in order to gain access to particular mining titles not yet granted at the date of registration of the plan, then the procedure set out in that clause in sub-paragraphs (1) to (7) are to be followed. 79 Clause 10, "Disturbance to Stock", provides that titleholders, when using access roads or tracks are to keep noise to a minimum to ensure no disturbance to stock in the vicinity. 80 Clause 11, "Conditions for use of primary access roads and access tracks", sets out particular conditions in (1) to (14). Sub-paragraph (4) of clause 11 provides that no road or track shall be impeded with mining equipment or mullock and that "no mullock is to be placed upon any road or track unless with the written permission of the landholder". 81 The map attached to the AMP and referred to in it (p.814 of Exhibit B) identifies the opal prospecting blocks by number as well as the location of the three mullock dumps. One mullock dump is shown as located on OPB 31A which is a block closest to Castlereagh Highway, a second mullock dump is located on OPB 23B and a third is located on OPB 192. Each of the three mullock dumps are located in areas that are proximate to tracks marked on the map in blue colour. 82 In the course of negotiations for an AMP, as envisaged by s.236E, there had been an exchange of draft proposed plans between the parties. The plaintiff consistently wanted "conditions dealing with mullock" but the defendant refused to agree to such conditions. 83 At an early stage, Mr Parkins proposed a plan in which he formulated a condition in the following terms (Exhibit A, p.26):- "Mullock Any excess mullock beyond that required for the backfilling of mine shafts must be transferred to a mullock dump. (refer to the attached plan for the location of mullock dumps.) Mullock is to only be dumped inside the boundaries of the dump and progressively fill it in one direction. Mullock must not be dumped at any location other than an approved mullock dump." 84 In a response letter from the Lightning Ridge Miners' Association Limited dated 20 February 2007 to Mr Parkins, it was stated (Exhibit A, p.34):- "A mining title is not derived from the landowner but from the Crown and the amendments you require to the draft Access Management Plan we believe are outside of what a landholder can request, a number of them are outside of the jurisdiction of the Department of Primary Industries and are covered by other legislation and others are already included in the Mining Act 1992 and prospecting and mining title conditions." 85 Included in Exhibit A was a copy of the Director-General's submissions in relation to the matter. Attention was drawn to the particular submission made by the Minister to the following effect (Exhibit A, p.48):- "The Department is the regulator of titles under the Mining Act and is responsible for enforcing compliance with the conditions of titles. It is because of the new enforcement role regarding compliance with AMPs that the Department considers it necessary to make a submission regarding the terms of an access management plan to be determined by the Mining Warden. The coverage of an access management plan has the potential to address a significant number of issues already regulated by claim and OPL conditions, a number of these matters are perhaps better regulated through conditions of title which can, if necessary, be amended easy [sic] by the Department. Matters relating to environmental management on claim areas are an example of such an issue. However, there are a large number of matters that the Department considers are essentially matters of concern to a landholder or are not claim specific and can be better regulated through an overarching management plan that applies to all titles within a defined geographic area. Disposal of mullock off title and haulage roads are but two examples of such issues. Ultimately, the coverage of the access management plan for the 'Wyoming' property is a matter entirely up to the Warden, however, it is respectfully submitted that the Warden, in his consideration and ultimate determination of the Wyoming access management plan, have regard to the matters addressed below for possible inclusion and regulation by the access management plan. These matters can broadly be grouped into three areas:- (1) Stakeholder management issues; (2) Enforcement issues; (3) Implementation issues. Enforcement and stakeholder management issues The access management plan currently under consideration is likely to be viewed as a precedent for future access management plans agreed between the miners' representative and landholders. As noted earlier, the primary purpose behind access management plans is to manage the interaction between the miners and the landholders. It is the Department's view that an access management plan can only be successful in achieving this if it adequately addresses the key issues of contention that have historically arisen between the major stakeholders …"

86 In the same submission it was made clear that the Department did not submit that the Wyoming AMP covered all of the issues set out in the letter (at pp.49 to 50 of Exhibit A) but it encouraged the Warden to consider "whether it is appropriate for the access management plan to address such issues …".

(J) THE PLAINTIFF'S SUBMISSIONS 87 The following matters were relied upon in support of what was described by Mr Leeming as the wide ambit of the provisions of s.236D(1):-

(1) The nature of the matters that may be included in an AMP.

(2) The fact that the provisions in the AMP need only have a connection "for or with respect to" the enumerated matters.

(3) The fact that those matters themselves are broadly defined by reference to what was said to be "expansive language" employed, in particular, the phrase "in relation to" . 88 In support of the construction of the particular phrases referred to in (2) and (3) above, the plaintiff relied upon the observations of Gzell J in CSR Limited v Chief Commissioner of State Revenue (2006) 68 NSWLR 440 at [30] to [31]. 89 It was also submitted that in construing s.236D(1), it was noteworthy that there is no express limitation suggesting that conditions of an AMP may not "relate to" matters that were the inevitable consequence of the exercise of access rights, such as the disposal of mullock. The construction adopted by the Mining Warden to the effect that a condition regulating the disposal of mullock does not "relate to" the exercise of access rights within the meaning of s.236D(1)(b) was said to be wrong. 90 Reliance was placed upon a purposive construction of the Act in accordance with the provisions of s.33 of the Interpretation Act 1987. In this regard, it was said that the provisions in question were in the nature of remedial legislation to which a "commonsense and practical approach" ought be taken. 91 In the written submissions for the plaintiff, it was submitted:- "38. At the heart of Ground 1 is the question: does the Mining Act 1992 properly construed require that the purpose of an access management plan is to address the issues arising from the fact of the holders of mineral claims and opal prospecting licences ('the miners') having access to a landholder's property in order to conduct the opal exploration and mining purposes which they are authorised to conduct under the said Act, or is it to govern the conditions upon which the miners exercise their statutory rights of way via roads and tracks to and from their mining titles on the Property and no more?" 92 In his oral submissions, Mr Leeming emphasised the following matters in relation to the provisions of s.236D(1):-

• The fact that the section stated that an AMP may make provision "for or with respect to " the matters specified in (a), (b), (c), (d) and (e) supported a broad construction of the section.

• The phrase in relation to s.236D(1)(a) also indicates that a broad interpretation should be given to the matters in (i), (ii) and (iii) in paragraph (a) of that section.

• The provisions of s.236D(1)(b) are cumulative to those in s.236D(1)(a). Of particular significance, it was contended, is the legislative authorisation of conditions for "avoiding interference with the land management practices" being adopted in relation to the land affected by the right of way, it being emphasised that the reference to "the land" refers to the whole of the land and not merely to the track along which access is exercised.

• That the provision in the section authorising the conditions in relation to "environmental protection" is sufficiently broad to cover the matters of concern raised on behalf of the plaintiff before the Chief Mining Warden. 93 In this latter respect, Mr Leeming submitted (transcript, p.6) that:- "… There is no real dispute nor was there before the Warden that the piles of mullock that accumulate as a by-product of the mining activities give rise to substantial concerns about environmental protection …" 94 In effect, Mr Leeming contended that, the Warden held that s.236D(1)(b)(iv) did not extend to "making provision in relation to dealing with the environmentally dangerous by-products of opal mining" (transcript, p.6). 95 Mr Leeming acknowledged that the provisions of s.236D(1)(c) and (d) do not provide support for the plaintiff's argument. 96 In support of the submission that a broad construction should be given to the relevant provisions of the Act, it was contended, firstly, that the ordinary grammatical meaning of the terms of s.236D, particularly the reference to "management", supports such a construction. Reliance was also placed upon a contention that the AMP (unlike a lease or a licence) is "necessarily personal to the landholder" (written submissions, paragraph 39). 97 In the latter point it was submitted that s.236M makes it clear that an AMP does not run with the land, but is terminated when the landholder dies or ceases to be a landholder. In those circumstances, it was argued there was no reason for the provisions to be narrowly construed so as to restrict the matters that may be included in a plan. 98 The legal consequences of an AMP included the circumstance that the conditions of an AMP become conditions of a mineral claim or an OPL. In the event of a breach of a condition, that will ultimately lead, in an extreme case, to cancellation of such a licence: see s.229 and s.233 of the Act. 99 Mr Leeming submitted that such consequences are part of a plan whereby the conditions imposed by an AMP attract sanctions thus ensuring their enforceability. 100 It was submitted that the Chief Mining Warden, in essence, directed his attention to roads and tracks, but no more (Plaintiff's written submissions, paragraph 37). The complaint was that the conditions in the AMP as determined by the Warden's Court did not address "the primary concerns of Mr Parkins in relation to the miners having access to his property when on its true construction the Act required that this be done. This was a consequence of the unduly narrow construction applied by the Mining Warden to the Act" (paragraph 37 of the plaintiff's written submissions). 101 The plaintiff argued that the provisions in s.236D(1) enable or authorise a Mining Warden "to address issues arising from the fact of the holders of mineral claims and opal prospecting licences having access to a landholder's property in order to conduct the opal exploration and mining purposes which they are authorised to conduct under the Act …". 102 The plaintiff, accordingly, contended, in effect, that the disposal of mullock is an "inevitable consequence" of the exercise of access rights. (paragraph 39(d) of the plaintiff's written submissions). 103 The submission raises the question as to whether the dumping or disposal of mullock can be said to be the consequence, inevitable or otherwise, of the exercise of access rights or whether it is to be properly considered to be the consequence of the exercise of mining rights. 104 The submission for the plaintiff was that, for the most part, a mineral claim is a quarter hectare area which is the subject of the conditions in an instrument under Part 9 of the Act that regulates such a claim. The plaintiff's case is that roads or tracks from the public road to the mineral claim areas and from those areas to the three mullock dumps should be the subject of an AMP. 105 The plaintiff relied upon the proposition that a road that connects a claim area or a public road to a mullock dump and thus enables mullock to be transported from one point to another means that a plan regulating such means of access can, under the provisions of the Act, regulate, not only the access routes, but also the activity or the site at which the placement or removal of mullock dumps occurs.

(K) THE DEFENDANT'S SUBMISSIONS 106 Mr Carney, in his submissions on behalf of the defendant, observed that mullock comes from the claims and the working of the claims. As such, he contended, mullock can be dealt with as a matter concerning conditions of mining as regulated by the Department of Primary Industry. The mullock dumps, he argued, are in the nature of a product of mining and are not a result of "access" to the dumps. 107 Mr Carney, accordingly, argued that lease or licence conditions of a mineral claim or a prospecting licence were the means for dealing with this so-called product of mining. If mining contravened restrictions or conditions, then, in his submission it was always open to the plaintiff to make complaint to the regulatory entity, the Department of Primary Industries. 108 On the construction of s.236D(1), it was submitted for the defendant that the plaintiff's submissions focussed upon the word "management" but that that word could not be considered independently from the matter that was to be "managed". Additionally, reference was made to CSR Limited (supra) and Workers' Compensation Board of Queensland v Technical Products Pty Limited (1988) 165 CLR 642 in relation to the phrase "in respect of" which the Court there stated gathers meaning from the context in which it appears and that it is the context that determines the matters to which the phrase extends. 109 It was submitted on behalf of the defendant that mullock heaps are not generated by any of the matters referred to in s.236D(1)(b) and that, in the absence of an agreement between the parties, the location and the extent of mullock heaps were extraneous to the permitted scope of a determination of an AMP under s.236D. It was further observed:- "… Unless there is consent by the landholder to accumulate mullock, produced by mining activities, elsewhere on the land then the mullock must be stored in the site of the relevant mineral claim. This would lead to a multiplicity of mullock heaps and that would not be in the landholder's best interests, nor in the best interests of the environment. The point is that without an agreement between the parties to include such a matter, then the storage of mullock has nothing to do with the conditions of an AMP." 110 The defendant contended that the matters the plaintiff sought to have incorporated into an AMP are already provided for in Parts 9 and 10 of the Act and that the appropriate way in which conditions relevant to those matters may be imposed are the small-scale mining titles themselves:- "… Those titles regulate the rights to explore and to mine within the title area, whereas an AMP regulates the rights of passage across the land to and from the title area." (Written submissions, paragraph 25) 111 It was further contended for the defendant that the process set up by Part 10A is not concerned with issues that arise from miners exercising their rights to mine their claims. 112 Mr Carney referred to the conditions of an opal licence and the conditions of a mineral claim. The Conditions of an Opal Licence for Opal Prosecting Area 1 & 2, a copy of which is included in Exhibit A at pp.163 to 164, were said to be typical of the type of conditions for such licences. They operate, inter alia, both for the purpose of conferring authority to carry out prospecting operations and also for imposing restrictions on activities that may be carried out. In relation to such restrictions, condition 3 limits prospecting operations to drilling and shaft sinking only. Condition 4 requires compliance with specified legislation. Such legislation, it was observed, included what was described as "all relevant environmental legislation". 113 Condition 7 provides:- "7. Operations are to be carried out in such manner that does not endanger the safety of any person or any stock. In particular, all shafts and drill holes are to be appropriately protected to ensure access to them by persons and stock is restricted. Any drill hole or shaft is to be filled as soon as it ceases to be used and the land in the immediate vicinity is to be left in a clean and tidy condition. Abandoned shafts and drill holes are to be filled in to the satisfaction of the Mining Registrar, Inspector of Mines or the Mine Safety Officer." 114 Condition 15 provides:- "15. The holder must conduct operation in such a manner as not to cause or aggravate soil erosion and must observe and perform any instructions by the Mining Registrar, Inspector of Mines or the Mines Safety Officer." 115 The conditions of licence also require that "Prospecting operations must be carried out in such a manner that is in accord with environmental legislation". 116 Condition 21(A) provides:- "The holder must rehabilitate all of the areas disturbed to the satisfaction of the Mining Registrar, a Mines Safety Officer or an Environmental Officer." 117 In relation to the conditions of a mineral claim under the Act, which are set out at pp.165 to 166 of Exhibit A, Mr Carney drew attention to paragraphs 6 and 7 thereof, which are in the following terms:- "6. Upon the completion of operations, or cessation of the mineral claim, the claim holder must rehabilitate all disturbed areas on the claim area to the satisfaction of, the Mining Registrar, a Mine Safety Officer or an Environmental Officer. The claim holder must ensure that the claim area is left in a clean and tidy condition, which includes the removal of all mining plant (ie, buildings, mining equipment, tools), rubbish, fences or any introduced plants. 7. The claim holder must ensure that any top soil that is disturbed in the course of operations is set aside for replacement when mining operations have come to an end. The claim holder must ensure that soil, rock and tailings are disposed of according to an Opal Field Management Plan or as directed by, the Mining Registrar, an Inspector of Mines, a Mines Safety Officer or an Environmental Officer . The claim holder must ensure that only such vegetation is removed from the claim area to ensure for efficient mining. The claim area must not be cleared of all vegetation and any clearing undertaking must comply with all relevant environmental legislation." (emphasis added) 118 The conditions of a mining claim, Mr Carney observed accordingly, regulate the mining claim area. In contrast, an AMP, he said, is confined to matters of "access" only. The conditions of a mining claim may be enforced as they are subject to sanctions including suspension or revocation of licences. Additionally, a bond is required in order to ensure environmental issues are addressed. 119 Mr Carney submitted that an AMP, on the other hand, has a limited scope of operation and is not "a general management plan". He contended that the conditions of a licence issued under the Act may make provision for matters that Mr Parkins was seeking to bring within the scope of the inquiry conducted by the Chief Mining Warden. 120 Mr Leeming, in his oral submissions in reply (transcript, p.60), agreed with Mr Carney that the activities associated with the dumping at the communal mullock dumps could be made subject to a "part of a licence" but he said they were not. He, with respect, appropriately acknowledged that having regard to the terms of clause 7 in the Conditions of a Mining Claim (Exhibit A, at p.165 - extracted above):- "I agree … that it could be the subject of a part of a Part 9 licence but it is not … one could impose a condition on a licence requiring those people that have had their 50 by 50 metres square to remove mullock in a particular way, store it in a particular place and so on but there isn't …" 121 In relation to the provisions of s.236D(1)(b)(iv) "environmental protection", Mr Carney submitted that the "environment concerns" referred to in the plaintiff's submissions could only relate "… to the question of access. In other words, should roads be constructed in the manner that's not going to be washed away and be done properly …" (transcript, p.48). He contended that the reference in s.236D(1)(b) to "… the conditions of which the holder of a small-scale title is subject to in relation to his or her exercise of any such right of access, including conditions in relation to: (the matters specified in (i) to (iv)) would include matters that could otherwise cause damage, particularly in the case of badly constructed roads that could be subject to the forces of erosion" (transcript, p.48). 122 Mr Carney also contended that mullock dumps arise in consequence or as a product of mining and that they are not concerned with matters related to access. In that respect, he submitted (transcript, p.49):- "Product of mining is something that would be attached to as a condition of a mineral claim or prospecting licence, but it's not the result of the prospecting, it's the result of mining. It's not agreed that be included here. In fact, it's specifically disagreed. His [referring to the plaintiff] remedy lies in, if he chose to, but apparently he does not seem to have, making a complaint to those that regulate the mining activity to say that as a result of the mining mullock dumped here, I need this cleaned up or dealt with in some other way. It's not a matter of access. That's regulated by the DPI under other parts of the Act as a condition of mining." 123 In the defendant's written submissions, reference was made to the fact that the right to prospect and the right to mine is derived directly from the relevant small-scale title and not from an AMP: s.195(1) and s.232(1) of the Act. Mr Carney also observed that the relevant Minister determines the terms and conditions that apply to small-scale mining title and publishes them in the Gazette: s.175 and s.223A of the Act. 124 In respect of mineral claims, the Minister has a broad scope to impose of conditions and s.175(2) specifies, without limiting the generality of s.175(1), particular conditions that may be specified. These include:- "(j) The obligations of the holders of mineral claims as to the rehabilitation of land on which prospecting or mining operations have been carried out." 125 Similarly, in respect of an opal licence under s.223A, the Minister's power to specify conditions under s.223A(1) is a broad one and, without limiting the generality of that provision, specific conditions as set out in s.223A(2) may be imposed. These do not expressly include a condition concerning rehabilitation of land, although it was contended the broad power to impose conditions would appear to embrace it. 126 The defendant also placed reliance upon the fact that a breach of conditions may lead to cancellation of the relevant prospecting title: s.203(1)(c) and s.233. 127 The defendant also took issue with the "concerns" raised by the plaintiff in his submissions in paragraphs 29 to 33. These were framed in terms of damage done to the land resulting from "opal mining operations generally" and "to minimise the impact of mining" (paragraph 31). 128 It was submitted (Defendant's written submissions, paragraph 15) that an Inquiry pursuant to Part 10A of the Act is not an appropriate forum in which to deal with any adverse impacts of mining, unless the parties enter into an agreement to include such matters in an AMP. Reliance was placed upon the provisions of s.236K which provides that "an AMP does not apply to land within the claim area under a mineral claim". 129 In relation to the plaintiff's contention that the central issue for determination depended upon whether a "narrow" or a "broad" meaning was given to the word "access", the defendant contended that the section provides for a determination by the Warden's Court that includes only matters that can be said to be "for or with respect to" those stipulated by s.236D(1) unless the parties to the plan agree on additional matters. Rather than the issue being said to be one involving a broad or a narrow interpretation, the defendant submitted that it is to be resolved by focussing upon the specific subject matter or matters referred to in s.236D(1).

(L) CONSIDERATION 130 The construction of the provisions of s.236D(1) are to be considered in the context of Part 10A and in the context of the provisions of Part 9, Mineral claims and of Part 10, Opal mining licences (collectively referred to as "small-scale titles"). 131 The terms of s.236D(1) are the central provisions of Part 10A, Access management plans for small-scale titles. They prescribe the subject matter that is capable of regulation by an AMP determined by the Warden's Court. 132 The central matter for which provision in an AMP may be made is "the rights of access" of a person who is a titleholder, being the rights of access that "the holder of a small-scale title" has in relation to the land to which the plan in question applies. 133 The "rights of access" identified in s.236D(1) include rights in relation to:-

(3) The manner in which and the times at which, rights of access may be exercised. 134 The "conditions" that may be imposed under s.236D(1)(b) are conditions that operate on, or relate to, "the rights of access" that are specified in s.236D(1)(a). In other words, the provisions in s.236D(1)(b) are directed to the conditions to which the holder of a small-scale title may be subject in relation to rights of access. They do not create an additional sub-set or class of rights of access separate or different from those referred to in s.236D(1)(a). The conditions are clearly of a kind that control or regulate the exercise of such rights of access. 135 Section 236D(1)(b) identifies four matters upon which conditions may be imposed by a plan for regulating the exercise or use of access rights, namely:-

(1) Maintenance : "maintaining routes of access" : s.236D(1)(b)(i);

(2) Safety : "preserving the safety of persons and stock" : s.236D(1)(b)(ii);

(3) Preserving land management practices : "avoiding interference with the land management practices being adopted in relation to the land affected by the rights of way …" : s.236D(1)(b)(iii);

(4) The environment : "environmental protection" : s.236D(1)(b)(iii); 136 There is no statutory definition in the Act of the terms "access" or "rights of access" or "management". Their meaning, however, may be established by reference to the Oxford English Dictionary. "Access" may be taken as referring to "a way or means of approach or entrance". The term, "management" in its ordinary meaning refers to "control of things or persons" whilst "plan" refers to or includes a "programme or method according to which something is to be done, a scheme of action, a design, a proposed proceeding or a way of proceeding" (Oxford English Dictionary). Subject to the terms of s.236D, the expression "access management plan", accordingly, denotes a programme or method for the control or regulation of the roads or tracks and their use by the holder of a small-scale title that provide access in relation to the land to which the plan applies. 137 The phrase "for or in respect to …": s.236D(1) and the phrase "in relation to" in s.236D(1)(a) and in s.236D(1)(b) are also to be given effect but in the context in which they appear, that is, in the context of the provisions of which they form part. 138 In relation to the phrase "with respect to" in s.236D(1), the following propositions have been enunciated in the relevant case law:-

• The words "in respect of" take their meaning from their context: Federal Commissioner of Taxation v Scully (2000) 201 CLR 148 at [39] and CSR Limited v The Chief Commissioner of State Revenue (supra) at [30] per Gzell J.

• In its ordinary meaning, that phrase requires some connection between two matters, although the connection need not be close or direct: CSR Limited (supra) at [30]. In Trustees Executors & Agency Co Limited v Riley [1941] VLR 110, Mann CJ observed:- "The words 'in respect of' are difficult of definition, but they have the widest possible meaning of any expression intended to convey some connection or relation between the two subject-matters to which the words refer."

• As Gzell J noted in CSR Limited (supra), Deane, Dawson and Toohey JJ in The Workers' Compensation Board of Queensland v Technical Products Pty Limited (supra) at 653-654 observed that this last-mentioned statement went too far but nonetheless the wide import of the phrase was acknowledged:- "Undoubtedly the words 'in respect of' have a wide meaning, although it is going somewhat too far to say, as did Mann CJ in Trustees Executors & Agency Co Limited v Riley …, that 'they have the widest possible meaning of any expression intended to convey some connection or relation between the two subject-matters to which the words refer'. The phrase gathers meaning from the context in which it appears and it is that context which will determine the matters to which it extends." 139 Accordingly, the phrase "with respect to" in question in this case takes its meaning from the context of s.236D(1)(a) and conveys a connection or relation to "rights of access" in the sense discussed above. 140 Difficulty may arise in applying statutory provisions regulating "access" or "means of access" in a particular set of facts. There has arisen, for example, issues involving the distinction between a means of access to or from a place of work from a place of work itself. See Australian Iron & Steel Pty Limited v Luna (1969) 44 ALJR 52: s.40, Factories Shops and Industries Act 1962. Much will turn upon the statutory and factual context. 141 Section 236D(1), of course, employs the expression "rights of access" and not "access" or, as was the subject of consideration in Luna (supra), "means of access". Section 236D(1) authorises the making of provisions in an AMP with respect to "rights" in relation to "land" being "rights of access" in relation to specified land. The "rights of access" are expressed to include, inter alia, such rights in relation to "access points" to specified land and "routes of access across" the land, the latter two expressions designating physical locations or points of reference to which or over which the rights attach. 142 Roads and tracks (that operate as access routes) in the context of s.236D(1) assume the character of a way to a destination. As such, they operate as an access along which the holder of a mining claim, and certain others, may pass. They are distinguishable from a place which has been accessed by such means and at which place an activity occurs such as the dumping of mullock. 143 In the present case, activities are conducted at either end of an access road or track - as, for example, mining operations on the claim area at one end and the activity of disposing or dumping mullock, leading to the creation of a mullock dump, at the other. The fact that the road or track is used to transport mullock to that place does thereby make the mullock dump at the terminus of an access route part of that access route. 144 The evident purpose of Part 10A, in particular, the provisions of s.236D(1), is to permit and manage "access" with respect to land within an access management area. The storage or disposal of mullock (or a resulting "mullock dump") is an aspect of mining and arises out of mining operations. It could not, in my opinion, be properly characterised as an aspect of, or due to, an exercise of access rights. Accordingly, it does not possess a relevant connection with "access" or "rights of access" within s.236DE(1)(a). Mullock and its storage and disposal does have an obvious connection with the activity of mining which is regulated by other provisions of the Act. 145 Part 9, Mineral claims, deals, inter alia, with prospecting and mining operations. The Minister may, by order published in the Gazette, specify conditions that apply to mineral claims granted over land: s.175(1) and (2). The conditions may vary by reference to specified matters: s.175(2A). 146 The meaning of "mine" in accordance with the Dictionary to the Act includes the extraction of material from land for the purpose of recovering minerals or to rehabilitate land from which the material has been so extracted. Section 192 specifically deals with conditions of a mineral claim and these may relate to a wide range of matters including the relevant land itself, rights of way, the payment of royalties and so on. The conditions of a mineral claim under the Act are discussed in greater detail in paragraph [117]. Such conditions may, accordingly, prescribe or regulate a number of matters that are related to mining operations in their various aspects, including the storage or disposal of soil, rock, the removal of minerals and the rehabilitation of land. 147 Similarly, Part 10 of the Act provides for the Minister's specification of conditions that apply to opal prospecting licenses: s.223A. Such conditions may also relate to a wide range of matters including those related to the nature and the extent of prospecting operations and for the rehabilitation of land on which such operations have been conducted. Section 229 of the Act, which makes provision for conditions of an opal prospecting licence, authorises conditions related to matters such as the exercise of a right of way under s.235C and such other conditions "as the mining registrar may impose subject to matters specified": s.229(d). 148 In paragraphs [112] to [116], I have referred to the type of conditions on a licence. These ensure that prospecting operations are carried out in a controlled manner. 149 Part 10A of the Act, including in particular, the provisions of s.236D(1), is not, in my opinion, directed to the regulation or control of mining or prospecting operations as those expressions appear in the Act. It is directed and only directed to the matter of "Access management plans for small-scale titles" including the "rights of access" to which the latter section is directed. Upon the proper construction of the provisions of s.236D(1) they do not, in my opinion, provide jurisdiction or power in the Warden's Court to impose provisions as part of an AMP for the control of mining or prospecting operations involving the placement, disposal, storage or removal of mullock. Additionally, s.236D(1) does not, in my opinion, authorise the Warden's Court to determine provisions of an AMP that have the effect of requiring or directing the holders of small-scale titles or the defendant association to remove the existing communal mullock dumps. Such provisions would not relate to a right of access. 150 In my opinion, the Chief Mining Warden adopted the correct construction of s.236D(1) and correctly determined the scope of the power of the Warden's Court under that provision. 151 I have, accordingly, concluded that no error has been established in the construction adopted by the Chief Mining Warden of the provisions of that section.

(M) PROCEDURAL FAIRNESS 152 In the Further Amended Summons, the plaintiff claimed that the Chief Mining Warden fell into jurisdictional error by reason of a breach of procedural fairness (Grounds 2, 3 and 4). These grounds essentially raised three alleged breaches of the requirements of procedural fairness:-

(1) Reliance by the Chief Mining Warden on a document entitled A Management Plan for the property of Wyoming in relation to the making of what is referred to as the Mullock Dump Finding in circumstances in which the legal status and substance of the document was not put to the plaintiff for comment and submission.

(2) The claimed refusal of an adjournment to enable the Director-General of the New South Wales Department of Primary Industry to make a submission on the availability of levies to fund enforcement of the AMP and rehabilitation of the plaintiff's land.

(3) The admission of evidence of Mr Drago Panich in circumstances in which, although directions had been made for service of expert reports, Mr Panich was called to give evidence without notice on the first day of the hearing and to the prejudice of the plaintiff.

(1) Reliance on the document entitled Management Plan for the property of Wyoming 153 On 6 December 2007, a document was sent to the Warden (Exhibit A, pp.79 to 91). It was entitled "Response of Landholder to Applicant's Preliminary Statement of Issues". At p.92 of Exhibit A is a copy of a facsimile addressed to "John Bailey" dated 6 December 2007. In handwriting, the following appears:- "hello John - Jeff has asked that I send you a copy of the Wyoming Management Plan. Have also sent the 'draft' of a map that was to be used but was never finalised. Regards Deb." 154 Mr Leeming, in submissions, said that his client did not know who "Jeff" was. He submitted (transcript, p.11):- "We say the uncontested evidence before the Warden was, there was no such thing. Mr Parkins swore there was no formal plan and nothing that was not determinable at will regarding management of his property." 155 Mr Leeming stated that, although there was a further hearing in March 2008, the Warden did not inform either party that the last-mentioned communication had been made. He said that the documents attached to the facsimile were relied upon expressly in the Warden's reasons in that part where he rejected the plaintiff's submissions about mullock removal conditions (transcript, p.11). 156 Mr Leeming, in relation to the above document, submitted (transcript, p.11):- "It was regard [sic] by the Warden, on a fair reading of his reasons, as a plan that was enforced even though, as your Honour can see at p.94, it wasn't signed by anyone. On p.95, one can see the draft map that's referred to in the covering page of the fax …" 157 The Warden's "mullock dump finding" is set out at pp.15 to 18 of the decision (Exhibit B, pp.781-784). In the plaintiff's submissions, it was contended:- "51. At p.18 of his reasons, the Mining Warden made it clear that he relied on the 'Management Plan for the Property of Wyoming'. Thus, he used it to resolve an important issue in which there was an adverse environmental effect of the miners having access to the property which only arose under the Mining Warden's construction of the Act. 52. The Mining Warden found the plan was created in consultation between the relevant parties (in itself a finding for which there was no probative evidence given by Mr Parkins); that it specifically directs miners as to the dumping of waste at the three locations (even though the covering facsimile from the Department states have also sent the 'draft' of a map that was to be used but was never finalised); and that the management plan forms part of the conditions of mineral claims issued over the area. 53. Hence the Mining Warden found that the Plan provided a legal basis for miners to dump mullock on the Property and that in determining the AMP, even though he could include provisions dealing with the roads leading to a mullock dump, he did not have to include provisions dealing with the dump itself. 54. None of this was ever put to Mr Parkins. Moreover, its factual and legal foundations were and are unclear. Mr Parkins had no opportunity through evidence or submissions to test the legality or otherwise of the document said to be A Management Plan for the Property of Wyoming nor was he given the opportunity to test the proposition relied on by the Mining Warden to deal with the issue of the mullock dumps. 55. The plaintiff submits that procedural fairness required that the earlier 'Management Plan' should have been squarely put to Mr Parkins and he should have had an opportunity of dealing with it, and the propositions relied on by the Mining Warden." 158 The defendant disputed the proposition that the Mining Warden had found that the management plan for Wyoming "provided a legal basis for miners to dump mullock on the property". It maintained that he did not go so far in his findings. The defendant contended that he found that the AMP should encompass roads that are used to convey mullock to and from the dumps that have been created. At p.17 of his decision, the Warden stated:- "Although an AMP creates a right for a miner to transport mullock over the roads to the mullock dumps, I cannot see how it can give a right to dump mullock at the site unless there is some agreement between the landholder and the miners, under s.236D(1)(e)." 159 At p.18 of his decision, the Warden went on to raise a "moot point" which he answered by reference to the Wyoming Management Plan and concluded that the plan related to the conditions of the mineral claims issued over the area. The defendant, accordingly, submitted that that being so, "the question raised being outside the scope of the inquiry, was indeed a 'moot point'": Defendant's written submissions, paragraph 30. 160 The defendant argued that the plaintiff did not claim any right, interest or expectation of the plaintiff had been defeated or denied by any use of the Wyoming Management Plan by the Warden's Court in determining the AMP (Defendant's written submissions, paragraph 31). 161 The defendant association, in particular, denied that the Warden's Court relied on the Wyoming Management Plan in determining the true meaning of the term, "access", where it appears in Part 10A of the Act (paragraph 32). 162 Finally, it was submitted for the defendant:- "33. In providing in the AMP for access routes to and from existing mullock dumps, the Warden's Court did not purport, nor was the Court required, to validate the current practice for the communal dumping of mullock on the land. 34. No right, interest or expectation of the plaintiff was defeated or denied and no breach of procedural fairness occurred." 163 In general terms, a duty to act fairly arises in the making of administrative decisions which affect rights, interests and legitimate expectations: Kioa v West (1985) 159 CLR 550 at 584.

164 The plaintiff submitted the statements of Mason J in Kioa (supra) were relevant to the application of procedural fairness where a decision-maker has relied upon an external source not dealt with by the applicant. In that case, a majority of the High Court held that the Minister's delegate breached the rules of procedural fairness in failing to put prejudicial allegations to two Tongan citizens before deciding to deport them. Applicants in migration cases are entitled to present information and material that supports their case, but cannot complain if the authorities reject the application because they do not accept what is presented. However, Mason J expressed an exception at 587:- " But if in fact the decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter: In re HK (An Infant) ."

165 In Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1, a departmental officer wrote a letter to the applicant stating that the Department wished to contact his children's carer to assess the impact that cancellation of the applicant's visa would have on the children. The applicant provided the contact details, but no departmental officer ever contacted the carer. The Minister cancelled the visa. The applicant claimed that there had been a denial of procedural fairness as a result of the Department's failure to contact the carer despite its representation that it would do so and its failure to notify the applicant that it would not contact the carer. 166 The crucial issue in Lam (supra) concerned the fact that the applicant could not demonstrate that he had lost an opportunity to put any information or argument to the decision-maker, or that he had suffered any detriment or unfairness in reliance on the expectation in question (per Gleeson CJ at [35]-[38]; McHugh and Gummow JJ at [105]-[106]; Hayne J at [120]-[122]; Callinan J at [140]-[151]). 167 In Lam (supra), Gleeson CJ elaborated on the scope of procedural fairness as it relates to the concept of practical injustice:- "37. … In a case of that particular kind, it is the existence of a subjective expectation, and reliance, that results in unfairness. Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.

38. No practical injustice has been shown. The applicant lost no opportunity to advance his case. He did not rely to his disadvantage on the statement of intention. It has not been shown that there was procedural unfairness. And, as I have already indicated, there is no warrant for a conclusion that there was a failure properly to take into account the interests of the applicant's children . "

168 It may be said that the Mining Warden's reliance on the Wyoming Management Plan, without advising the parties, was a breach of procedural fairness requirements. However, it does not automatically follow from that that the plaintiff suffered any detriment or unfairness. In the words of Gleeson CJ in Lam (supra), the plaintiff must show that "practical injustice" resulted from the Mining Warden's reliance on the Wyoming Management Plan. 169 It is necessary to examine the precise manner in which the Mining Warden relied upon the Wyoming Management Plan and the role it ultimately played in his reasoning. The Warden stated at p.18:- " The moot point arises as to what is the position of miners who move off the road which is created in an AMP for the purposes of dumping mullock upon one of the currently designated mullock dumps? The answer to that question comes within the conditions set down in the 'Management Plan for the Property of Wyoming'. That plan was created in consultation between the landholder, the LRMA and Government department personnel representing Western Lands and Mineral Resources; it specifically directs miners as to the dumping of waste at these locations. This management plan forms part of the conditions of mineral claims issued over the area ." 170 According to the plaintiff, the Wyoming Management Plan was not an enforceable plan. The Warden proceeded on the basis that the Plan was effective and operational and was the source of conditions on mineral claims in the area in question. The finding that the Plan "specifically directs miners as to the dumping of waste at these locations" is arguably significant in determining the scope of the AMP. However, the Warden prefaced the discussion of this issue by stating that it is a "moot point". 171 The Warden's "Mullock Dump Finding" appears at pp.15-18 of his decision. Before considering the effect of the Wyoming Management Plan, the Warden made the critical finding that, absent agreement between the parties, the AMP could encompass the right for a miner to transport mullock over the roads to the mullock dumps, but not the right to dump the mullock at the site (at p.17). 172 The Warden's finding was based upon the following analysis (at p.17):- " However, a mullock dump is akin to a mineral claim, only insofar as once a road reaches a mineral claim, that concludes the role of the AMP. From thereon the conditions of the mineral claim take precedent [sic] for any activity upon the mineral claim itself. No reasonable interpretation of Part 10A would envisage an AMP could be utilised to create further conditions in respect of the actual mineral claim itself (other than a mineral claimholder is subject to the conditions of an AMP)." 173 After discussing the "moot point" arising in relation to the Wyoming Management Plan, the Warden continued at p.18:- " Just as the AMP cannot give the right to dump mullock in the currently designated areas, nor can it, in accepting the submissions of Mr Moore concerning sub-section (1)(e), create an obligation upon someone to remove those dumps, unless it is incorporated by consent in that sub-section ." 174 Ultimately, the Warden concluded his finding with respect to the mullock dumps with the following statement (at p.18):- " Accordingly, without the consent of the parties, there cannot be a condition of this access management plan that the LRMA (or any other person or body) remove the existing mullock dumps from 'Wyoming' ". 175 In examining the Chief Mining Warden's reasoning, it is evident that his central finding in respect of mullock dump rights and obligations was one made prior to his discussion of the Wyoming Management Plan. The finding was premised upon the distinction drawn at p.17 between roads that are utilised for transporting mullock to and from dumps on the one hand, and mullock dumps as part of a mineral claim or activity on the other, mineral claim activities being the subject of prescribed conditions of a mineral claim. The Warden's erroneous reliance on the Plan may have confirmed or fortified his conclusion in this respect; but it did not provide the legal basis for the primary conclusion earlier expressed. 176 Ultimately, the question which fell for determination by the Mining Warden was one of statutory construction, namely, the correct interpretation of s.236D(1), and, in that respect, the proper meaning of "rights of access". The Wyoming Management Plan did not bear on the resolution of this question, and it was not relied upon in that sense by the Chief Mining Warden. The plaintiff has not, in my opinion, established that the Chief Mining Warden would have reasoned differently or have arrived at a different outcome had he not considered the Plan at all. It is clear that the Chief Mining Warden did not rely upon the Plan in determining the central issue of the statutory construction under s.236D(1). The plaintiff has not, in my opinion, demonstrated any practical injustice or actual unfairness flowed from the Chief Mining Warden's use of and/or conclusions about the Plan.

(2) The claimed refusal of an adjournment in relation to the issue of levies 177 The third ground relied upon by the plaintiff concerned what Mr Leeming, in his oral submissions, referred to as the question as to what financial security, if any, there was for the cost of dealing with what he described as "this environmentally dangerous mullock" and that his client was denied an adjournment to put "financial information" before the Chief Mining Warden. In his decision under challenge, it was noted that removal of the mullock from the three sites in question would be at some considerable expense (Exhibit B at p.782). 178 Ground 3 to the Further Amended Summons is as follows:- "3. The Mining Warden erred in refusing the application by the plaintiff for an adjournment, the purpose of which was to enable the Director-General of the NSW Department of Primary Industries to make a submission on the availability of levies to fund enforcement of the Access Management Plan of the landholder's land." 179 The above ground particularised the basis relied upon: see sub-paragraphs (a) to (e) in the Further Amended Summons. 180 Ground 3 was directed to the refusal of an adjournment so that evidence could be called in relation to a recent amendment to the Act which, it was said, had expanded the power to raise levies and that levies "had the capacity to work in tandem with the Access Management Plan". 181 The written submissions for the plaintiff addressed this issue at paragraphs 56 to 74. The plaintiff's application was for the Chief Mining Warden to defer his determination so that evidence on the availability of levies under s.223A and s.175 of the Act as an aid to enforcement of an AMP could be obtained. 182 The defendant association has raised in its final submissions of 15 February 2008 that "… neither the LRMA, nor any of its compensation funds or voluntary practices has statutory recognition …". 183 It went on to submit:- "Consequently, in order to ensure the success of the amending Act of 2004 and the AMP structure, it is vital that systems and structures be derived to ensure the AMP can be practically enforceable" (paragraph 46 of the defendant's written submissions) 184 The plaintiff, in written submissions, sought a deferral of the determination pending receipt of submissions from the Director-General on the availability of levies under s.223A and s.175 of the Act "as an aid to enforcement". 185 The matter is dealt with in the decision (Exhibit B, at p.793) in the following terms:- "Paragraph 47 of the landholders' final submissions requests a deferment of the court's decision until submissions from the Director-General concerning the availability of levies under S.175 and 223A of the mining Act 1992. This request emanates from the concern of the landholder over what he perceives to be inadequate enforcement procedures concerning breaches of an AMP as well as the costs in environmental repair. The ability of a Registrar to cancel a claim for non-compliance carries with it a strong deterrent. Although it is suggested in the landholders' submission that 'the holder of an uneconomic mining title is likely to often prefer cancellation of his title rather than the making of contributions for access or environmental repair', a Registrar has a discretion under S.190(1)(b) to refuse to grant an application if the applicant has had a previous claim cancelled. This can be a very strong deterrent. The aspect of levies is a side issue in respect of an Access Management Plan. I do not propose to defer my decision pending any submissions as to the availability of those levies." 186 It is clear that the question of the enforceability of an AMP is a consequential issue to the issue as to what may be prescribed as the content of an AMP. The latter was the central issue raised by the plaintiff in relation to the subject of the three communal mullock dumps. In that sense, the question of "levies" was "a side issue" to both the primary issue and the means for enforcing an AMP. As such, the Chief Mining Warden was justified in so characterising the "issue" and to take it into account in the exercise of the discretion in not deferring proceedings or granting an adjournment. 187 A further aspect of this ground relied upon by the plaintiff was that the Chief Mining Warden failed to put or discuss what he considered to be "a side issue" prior to refusing the adjournment. Reliance was placed upon the decision of the Court of Appeal in Chaina v Alvaro Homes Pty Limited [2008] NSWCA 353 per Basten JA at [23] to [29]. 188 Mr Leeming did not seek to supplement the written submissions on this ground (at t.42). He also acknowledged that there was no evidence that the Director-General might respond to any invitation to make submissions on the matter of levies. There was no evidence that the Director-General would respond in any particular manner on the subject if there was any response at all. 189 Ground 3 is to be considered in the context in which it arose and having regard to the principal and antecedent issue that fell for determination, namely, the proper construction of the terms of s236D(1). The focus of argument in the present proceedings has been upon the latter issue. The question of deferring the determination was essentially a discretionary one for the Chief Mining Warden. He was entitled to take into account the fact that the question of "levies" was not an issue that went to the interpretation of s.236D(1) and was at the very periphery of the matters that he had been required to inquire into and determine. The discretion has not, in my opinion, in the circumstances, been shown to have been improperly exercised. Accordingly, I do not consider the matters relied upon in paragraph 74 of the written submissions for the plaintiff are such as to establish the asserted error.

(3) The admission of evidence of Mr Drago Panich 190 It was contended on behalf of the plaintiff that he was denied procedural fairness by the Association's production of an expert report on relatively short notice. 191 The Association was to file and serve its submissions and affidavit evidence by 20 July 2007. 192 The Association's solicitors wrote to the plaintiff's solicitors on 23 August 2007 stating:- "The only affidavit upon which the LRMA intends to rely is the non-contentious affidavit of Maxine O'Brien sent to you on 21 August 2007 in draft form …" 193 On 17 October 2007, the Association was given the opportunity to file and serve a Written Outline of Submissions by 13 November 2007. 194 As set out earlier, the hearing took place at different locations on split hearing dates. 195 At the hearing on 27 November 2007, the Association relied upon the Preliminary Statement of Issues in Dispute, the Applicant's Response to the List of Issues referred to in paragraph 5 of the Landholder's Response and the affidavit of Ms O'Brien sworn 26 November 2007. Ms O'Brien gave evidence at the hearing and was briefly cross-examined. The plaintiff called his expert witness, Ms Allen, who was also cross-examined. 196 The Association proposed to call a witness, Mr Panich, who was described as a "significantly qualified witness" (transcript, Exhibit C, p.949). No notice had been given, nor had any affidavit been served and filed. Mr Archibald on behalf of the plaintiff objected to the Association calling Mr Panich in the following terms (at p.949):- " I've learnt for the first time today that there is a witness that he wants to call. I've got no idea what that witness is going to say. I'm really taken by surprise that there is a further witness. Directions were made in relation to the putting on of evidence, and yet we're told today there's a witness that we knew nothing about ." 197 Mr Moore on behalf of the Association explained that Mr Panich's evidence was necessary to respond to the issues raised by the plaintiff, and that his evidence would be confined to supporting the issues in the issues paper prepared by the Association in response to the plaintiff's issues paper. 198 On this basis, the Mining Warden stated (at p.950):- "I think the only thing I can do at the moment is to allow him to give evidence. If there are some matters there that concern you, we can then before you embark on cross-examination or whatever…we can then discuss them and see how we can resolve the issue. I think that's the only way I can approach it." 199 It is contended by the plaintiff that the Mining Warden's decision to allow Mr Panich to give evidence gives rise to a breach of procedural fairness requirements. In this respect, it was submitted that the failure to give notice of an intention to adduce evidence can cause the other party to be taken by surprise and prevent their full and effective participation in the proceedings. Notice allows the other party the opportunity to prepare an adversarial defence to the evidence adduced on behalf of the other party. 200 The plaintiff submitted that the complex nature of this case required adequate notice to be given of the intention to call Mr Panich, whose evidence it was maintained was significant in a number of respects. 201 In the circumstances, the plaintiff asserted that the Mining Warden should not have permitted Mr Panich to give evidence, or should have adjourned the proceedings to allow the plaintiff to respond. 202 The defendant denied that the plaintiff was disadvantaged or otherwise fairly treated by reason of Mr Panich's evidence in chief being permitted without notice to the plaintiff. The defendant contended that the evidence was "… largely concerned with providing the inquiry with a clear understanding of current opal mining practices and the facilities and mechanisms that are available to the miners and landholders in Lightning Ridge": Defendant's Submissions in Reply, paragraph 44. 203 The defendant relied on the opportunity given by the Mining Warden to the plaintiff to make application for an adjournment or to present further submissions on this point after Mr Panich had given evidence. That opportunity, it was said, ensured procedural fairness to the plaintiff. The fact that the plaintiff failed to request an adjournment at any time during the hearing was said to be significant. The defendant, accordingly, contended that the plaintiff was not denied the chance to adduce any contradictory evidence in response to Mr Panich's testimony and was not, in any way, disadvantaged by Mr Panich being permitted to give evidence. 204 Mr Archibald cross-examined Mr Panich and did not make or pursue an adjournment application or make further submissions on the calling of the witness. 205 It is established that, in some limited circumstances, a failure to grant an adjournment may constitute denial of natural justice: Cohen v McMillan (1998) 348 NSWLR 476. 206 In the present case, although counsel for the plaintiff said he had been taken by surprise, the Chief Mining Warden indicated in what he said response that he would re-examine the situation at the conclusion of evidence in chief. Whilst he did not say so in express terms, he clearly indicated that, at that point, he would consider the matter in light of evidence to be given by Mr Panich. 207 There was, as I have noted, no application made on behalf of the plaintiff at the conclusion of Mr Parkins' evidence in chief. The failure at that point to apply for an adjournment may be seen as significant as indeed was the decision by counsel for the plaintiff to press on cross-examining the witness without applying for an adjournment to consider the evidence he had given. The failure to apply for an adjournment may be a significant fact when a claim of procedural fairness is claimed, eg: Hachem v Cimijolta (1996) 24 MVR 192, cf. Fugen Holdings Pty Limited v Howle [1999] NSWCA 103. 208 I am of the opinion that the plaintiff has not established a breach of procedural fairness requirements. I additionally observe that, at no stage after Mr Panich gave evidence, was any disadvantage asserted in the course taken at the hearing. 209 Accordingly, I do not consider that the decision and determination of the Chief Mining Warden was vitiated by any breach of the requirements of procedural fairness.

(N) CONCLUSIONS AND ORDERS 210 For the reasons set out above, I have concluded that the plaintiff is not entitled to the relief claimed in the Further Amended Summons. 211 Accordingly, Further Amended Summons is dismissed. 212 The parties may address on the issue of costs, if any issue is to be raised in that respect. **********

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