Plaintiff v First Defendant

1 The plaintiff, Barfuss Corporation Pty Ltd (Barfuss) has, since 5 September 2022, held a Mining Licence MIN 5561 (the Licence) in respect of the property known as 505 Charlotte Spur Track, Swifts Creek, Victoria 3896 (the Property).[1] The defendants, Shelley King and Jenny Miles, are the registered proprietors of the Property,[2] which they use primarily for grazing sheep.[3] The Property was originally a 'Crown Grant'. The Crown Grant was subject to reservations, which continue to be registered, permitting the holder of any miners right or licence to enter and to mine for minerals.[4] The Licence, granted under the Mineral Resources (Sustainable Development) Act 1990 (the Act), entitles Barfuss to carry out mining on the Property, explore for minerals, construct certain facilities and do anything else that is incidental to that mining.[5]

2 Barfuss intends to undertake subterranean gold mining on the Property, pursuant to the Licence.[6] Before it is entitled to carry out this work, it is required under the Act to prepare a work plan appropriate in relation to the nature and scale of the work proposed to be carried out, that identifies risks that the work may pose and specifies measures to eliminate or minimise those risks, among other matters.[7]

3 Barfuss has been in communication with the defendants since at least September 2022 seeking access to the Property in order to prepare the work plan.[8] The defendants have resisted giving access to the Property to Barfuss, other than for limited days and on various conditions as to what Barfuss is permitted to do. With the dispute over access remaining unresolved, Barfuss has brought this proceeding,[9] seeking declarations to the effect that it holds the Licence in respect of the Property, and that it has the right under the Licence to enter and do work within the meaning of the Act. Barfuss also sought an injunction restraining the defendants from restricting or denying Barfuss' right to access the Property in accordance with its access rights under the Licence and the Act.

4 After a hearing on 12 December 2023, I determined that it was not appropriate to issue final declaratory or permanent injunctive relief, but that it was appropriate to make an order for an interlocutory injunction. I provided brief ex tempore reasons for my decision, which are elaborated in this judgment.

5 Barfuss' Licence to mine on the Property, granted on 5 September 2022, is effective for seven years and subject to various conditions.[10] One of the original conditions required that Barfuss must submit a mining work plan, including a rehabilitation plan, for any work within 12 months of the grant of the Licence.[11]

6 On 19 September 2022, Barfuss applied for a hearing with the Mining Warden in an attempt to resolve the dispute with the defendants over access.[12] The hearing before the Mining Warden took place on 28 November 2022 but did not resolve the matter.[13] A second hearing before the Mining Warden was held on 22 February 2023 and again did not resolve the issues between the parties.[14] Subsequent correspondence between the parties also did not resolve the dispute over access.[15] On 29 August 2023, Barfuss sought a variation of the condition on the Licence requiring completion of the work plan within 12 months of the date of the grant, seeking a further 12 months.[16] The Earth Resources Regulator varied the conditions of the Licence to provide that the 'licensee must submit a mining work plan, including a rehabilitation plan, within 24 months of the grant of the Licence.'[17]

7 The evidence of Ricardo Barfuss, who was employed as Manager for Barfuss, was that he had 25 years' experience in the mining industry, and also that he had experience accessing privately owned land for the purpose of developing mining work plans.[18] His family had formerly owned the Property and his father had run a gold mine on the Property in the period from around 1962 until 1992.[19] Based on his experience, he expressed the opinion that to assess the Property and to conduct the work necessary to prepare and complete the mining work plan for approval by the relevant mining authorities, Barfuss would require unimpeded access to come and go from the Property as necessary for a period of up to two years.[20] This was because:

(a) to develop the work plan it would be necessary for Barfuss to interact with various experts and government authorities, some of whom may need to send representatives to the Property;

(b) Barfuss would have to assess the mining infrastructure on the Property and obtain quotes for the work required to refurbish it;

(c) the timeframe for completing the work plan is in part dependent on the availability of experts to attend the Property, conduct testing of the land and provide necessary reports; and

(d) environmental factors such as fires and rains can also impact the timeframe for completion of the work plan.[21]

Correspondence regarding access to the Property

8 The evidence was that prior to the grant of the Licence and after the grant, Barfuss sought access to the Property, on the basis that it had a right of access under the Licence, including for the purpose of meeting conditions on the Licence, but the defendants refused to permit access. That refusal was initially communicated in an unqualified way[22] with the defendants subsequently refusing access unless Barfuss complied with various requirements.[23]

9 On 19 December 2022, Barfuss' solicitors wrote to the defendants' solicitors requesting an indication of the dates in January 2023 in which Barfuss could access the Property to undertake a preliminary assessment of the Property and existing equipment on the Property.[24]

10 On 22 December 2022, the defendants' solicitors replied advising that they were 'willing to work towards reaching an agreement as to Barfuss' access to the property for the purposes of inspection only so that they can prepare their Work Plan in accordance with the Mining Licence', and offered that Barfuss could attend the Property on 19 to 20 January 2023, subject to conditions including:

(a) the removal of fallen trees from the road accessing the Property;

(b) that all attendees provide a current police check, sign waivers, and obtain and provide COVID-19 test results;

(c) that access is for the preparation of a work plan only; and

(d) that prior to accessing the Property, Barfuss pay $25,000 to Ms King to cover expenses including security, a portable toilet and compensation for loss of income.[25]

11 Barfuss rejected this offer, advising that it required three to four weeks in January 2023 to access the Property for a preliminary assessment and that the conditions requested by the defendants were excessive and onerous and not achievable by 19 January 2023. Barfuss proposed access on different terms, including that it would:

(a) not cause any damage to the Property or adjacent properties, nuisance to Ms King or interference with the operation of the Property or adjacent properties;

(b) shut all gates on entry and exit;

(c) not interfere with any livestock or farming operations;

(d) promptly repair any damage caused;

(e) enter and access the Property at its own risk; and

(f) indemnify the defendants against claims, demands, actions, costs, judgments and expenses that may occur as a result of Barfuss entering or accessing the Property.[26]

12 Further correspondence was exchanged between 4 January 2023 and 16 January 2023 in which the solicitors for the defendants advised that they were obtaining instructions from the defendants, and were having difficulty in doing so due to a personal matter relating to the defendants.[27] On 5 January 2023, Barfuss' solicitors noted that due to the delay, the proposed access dates of 19 to 20 January were unlikely to be achievable.[28]

13 On 23 January 2023, the defendants' solicitors wrote to Barfuss' solicitors with an offer for access to the Property from 6 to 10 February 2023, subject to the following conditions:

Representatives

1. A maximum of four representatives of Barfuss can attend the property during the access period.
2. By close of business Tuesday, 31 January 2023, [Barfuss] is to provide to us the following information regarding its nominated representatives attending the property:

a. full names and contact details;

b. current Police Check;

1. a signed acknowledgement and undertaking from [Barfuss'] representatives that they:

i. enter the property at their own risk;

1. will not cause damage to the property or adjacent properties;
2. will not interfere with any of the livestock on the property;
3. will not be a nuisance to [the defendants] or their representatives on the property;
4. will shut all gates on entering and existing the property and gates will not be left open at any time;
5. will repair immediately and compensate [the defendants] for any damage it causes to the property or livestock on the property; and
6. indemnify [the defendants] against all claims, costs, demands and judgements that may be brought against [the defendants] due to [Barfuss'] access to the property or damage caused or injury or death or any other matter relating to same.

Access

1. [Barfuss] is to provide details as to which areas of the property they will be accessing when on the property.

4. [Barfuss] can access the property from:

a. Monday, 6 February 2023 from 10am; and

b. Tuesday, 7 February 2023 to Friday, 10 February 2023 from 9am.

1. [The defendants] will arrange for the gates to be unlocked in the mornings at the above times and will lock the gates at 5pm each evening.

2. No one to leave the property throughout the day so as to maintain locked gates for the protection of the livestock on the property.

3. [Barfuss] can only access the property under the supervision and presence of our clients, Mr Trevor King and/or Mr William Gibson.

Covid Testing

1. Any representative accessing the property must attend the Swifts Creek Bush Nursing Station in the morning of Monday, 6 February 2023 for a supervised Covid rapid antigen test.
2. Any representative who tests positive to Covid cannot access the property for the access period.

Limitation of work

1. While on the property, [Barfuss] agrees that access is provided for the purposes of observation only in order to prepare its Work Plan and that:
   1. there will only be shallow, superficial surface-level and non-invasive digging to be done with any holes caused to be covered in by [Barfuss] prior to leaving the property;

b. there is to be no drilling of any kind;

1. machinery is not to be moved and no repairs of any kind are to be done to the machinery;

d. [Barfuss] take reasonable steps not to disturb flora; and

1. access to the house is refused as it is currently locked and has [the defendants'] personal effects and furniture stored inside.[29]

14 From 31 January 2023, the parties exchanged further correspondence to arrange for Barfuss to satisfy the defendants' conditions and conduct an initial walk around the Property.[30] On 2 June 2023, Barfuss' solicitors advised the defendants' solicitors that they considered all the preconditions for access to the Property had been satisfied.[31] On the same day, the defendants' solicitors advised that they would seek instructions and respond shortly.[32] Despite requests during June and July 2023 from Barfuss' solicitors, that response still had not been given as at 27 July 2023, when the defendants' solicitor advised he was awaiting instructions and requested that Barfuss '... advise a range of days that may suit for the walk around so I can put them to [the defendants]'. [33]

15 On 3 August 2023, Barfuss' solicitors responded stating that Barfuss 'has determined that attempting to coordinate with [the defendants] to gain access to the Property is futile and consequently, this letter acts as notice that [Barfuss] will be obtaining access to the Property in accordance with its rights under legislation', referring to s 204 of the Land Act 1958 and s 42 of the Act.[34]

16 On 10 August 2023, the defendants' solicitors told Barfuss' solicitors that Ms King was prepared to meet Barfuss at the Property 'for a walk around inspection of the property and to understand [Barfuss'] plans at a time of convenience on Monday 21 August 2023'. On the same day, Barfuss' solicitors responded advising, among other things, that Barfuss did not require the defendants' consent to access the Property, and that it would be commencing access from 18 August 2023.[35]

17 On 16 August 2023, the defendants' solicitors told Barfuss' solicitors that Barfuss had no right to access the defendants' property and any access would amount to trespass until the defendants' consent was given, and requested that an acceptable statutory compensation agreement be negotiated and settled before access was agreed.[36]

19 The Act governs the regime for the grant of mining licences and the conditions over which mining work, exploration and related activity can be carried out over the subject land.

20 Under s 14 of the Act, the holder of a mining licence is, subject to s 42(1), entitled to carry out mining on the land covered by the licence, to explore for minerals and to construct any facilities specified in the licence, and to do anything else that is incidental to that mining.

42 Commencement of work under mining licence or prospecting licence

(1) The holder of a mining licence or prospective licence must not carry out any work on the land covered by the licence unless -

(a) the licensee has an approved work plan if required under this Act; and

Note

Section 40 contains the requirements for a work plan.

...

(h) if the land affected is private land -

(i) the licensee has obtained the written consent of the owners and occupiers of the land affected; or

(ii) the licensee has made and registered compensation agreements with those owners and occupiers; or

(iii) the amount of compensation payable to those owners and occupiers has been determined under Part 8; or

(iv) the licensee has purchased the land affected.

...

(2) Subsection (1)(h) does not apply if it is waived by the Department Head under subsection (3).

(3) If the land affected is private land and the licensee has been unable to determine the name and address of the owners and occupiers of the land, the licensee may apply to the Department Head to have the requirement specified by subsection (1)(h) waived.

22 Section 40 of the Act deals with work plans. Section 40(1) provides that a licensee 'who proposes to do work under the licence must lodge a work plan with the Department Head'. The term 'work' is not defined in the Act. Section 40(2) provides that s 40(1) does not apply, inter alia, to a licensee who proposes to only carry out 'low impact exploration work' unless the Department Head declares, in writing, that the licensee must lodge a work plan.

23 'Low impact exploration' is defined as having the meaning set out in Schedule 4A. Schedule 4A, which is titled 'Low impact exploration', defines the concept of low impact exploration as being exploration, excluding a series of specified activities. 'Exploration' is defined in s 4 of the Act as meaning 'exploration for minerals', with inclusive examples of activity identified.

1 In this Act -

low impact exploration means exploration that does not involve any of the following -

(a) the use of explosives;

[paragraphs (b) to (e) refer to various activities involving the taking of certain flora or fauna]

(f) the removal or damaging of more than 1 hectare of native vegetation if that area does not contain any native trees during either the term of the licence or a period of 5 years from the grant of the licence, whichever ends first;

[paragraphs (g) and (h) refer to the removal or damaging of certain native trees]

(i) the creation of any road, structure or hardstand area without the consent of the owner or occupier of the land on which it is created;

(j) the use of any closed road without the consent of the owner or occupier of the land on which the road is located, or undertaking works on any road without the consent of the owner or occupier of the land on which the road is located;

(i) is within 200 metres of a waterway; or

(ii) is on a slope steeper than 1 vertical : 3 horizontal; or

(iii) is of greater than 2 hectares in an area of cultural heritage sensitivity during either the term of the licence or a period of 5 years from the grant of the licence, whichever ends first; or

(iv) involves taking water from an aquifer, hydraulic fracturing, or excavation using heavy earth moving equipment.

25 Various terms in the clause are defined in clause 2 of Schedule 4A, including the following terms:

damaging, in relation to native trees or vegetation, means all activities that impact native vegetation, but does not include -

(a) lopping or trimming no more than one third of the foliage or [sic] a tree or shrub (not including the trunk); or

(b) mowing or slashing native grasses (but not trees, shrubs or groundcovers) to a height greater than 10 cm);

...

ground intrusive work means work that disturbs the topsoil or surface rock layer of the ground by machinery (other than hand-held machinery) in the course of drilling a hole, ground levelling or augering;

26 The primary position of Barfuss as originally expressed in its submissions, and reflected in the second declaration and permanent injunction sought in the originating motion, [37] was that the Licence conferred on it a right to enter and mine and work on the Property for the seven-year term of the Licence, provided the conditions on the Licence and the requirements under the Act were met.[38] The defendants were not, therefore, permitted to deny or restrict Barfuss' access the Property.

27 Although Barfuss' primary position was initially that it had a right of access to work or mine on the property, subject to the Act, in its submissions filed prior to the proceeding it also sought, in the alternative, the more limited relief of an interlocutory injunction restraining the defendants from restricting Barfuss' right to access the Property until 5 September 2024 while a work plan was prepared.[39] On the day of the hearing it also proposed orders in more limited terms, focussing on the need to prepare a work plan. This relief included a declaration that:

As the holder of mining licence MIN5571 (Licence) in respect of the property (Property) known as 515 Charlotte Spur Track, Swifts Creek Victoria 3896, the plaintiff has the right to enter the Property to prepare a work plan and to conduct low impact exploration work in accordance with s 40(3) of the Mineral Resources (Sustainable Development Act) 1990 (the Act).

The Defendants are restrained until 5:00pm on 12 December 2025 directly or indirectly, whether by themselves, their servants or agents or otherwise howsoever, from restricting the Plaintiff as holder of the Licence from entering the Property to prepare a work plan and to conduct low impact exploration work within the meaning of the Act.

29 The defendants, although having in the prior correspondence between the parties contended that access by Barfuss would 'amount to trespass',[40] did accept following the issue of the proceeding that Barfuss did have some rights of access to the Property under the Licence, although continued to contend that it was subject to preconditions that they were entitled to enforce.

30 In the affidavit of their solicitor filed on their behalf, the defendants accepted that Barfuss had 'the right under the licence to enter and do work within the meaning of ... the Act'.[41] However it was contended that Barfuss 'has not sufficiently defined its access rights' and 'has not demonstrated it has satisfied all the requirements in s 32(1) of the Act', which is a provision relating to the powers of the Minister with respect to renewal of mining licences.[42] The defendants did not identify a source of any statutory obligation requiring Barfuss to 'define' access rights before it was permitted to access the Property. It also did not identify a basis for the requirement to demonstrate that it had satisfied requirements relating to renewal in s 32(1). The defendants did observe that Barfuss had not complied with conditions on the Licence, which they identified as:

Condition 1: "The licensee must, from the date of registration of the licence, expend $181,050".

Condition 2: "The licensee must submit a mining work plan, including a rehabilitation plan, within 12 months of the grant of the licence".[43]

31 It was also contended that any entry onto the land should be limited to a walk-around inspection to 'discuss the proposed works by Barfuss and the impact it will have on [the defendants'] farming operation'.[44]

32 Senior counsel for the defendants accepted in the course of the hearing that some of the demands that the defendants had made of Barfuss when it was seeking consent to enter the Property were 'unnecessary and not helpful'.[45]

33 It was also accepted by senior counsel for the defendants that there was common ground between the parties as to the entitlement to access to the Property for the preparation of a 'work plan', but that there remained a dispute about the entitlement to undertake low impact exploration work.[46] The defendants ultimately accepted that a mining licence holder who wishes to enter the relevant land for the purpose of preparing a work plan did not need consent under s 42(1)(h). However, that ability to enter for the purpose of a work plan would be limited to walking on the land for the purpose of informing himself and preparing a workplan[47] and did not extend to activities which may fall within the scope of low impact exploration, as this would constitute 'work' for the purposes of s 42(1).[48] Senior counsel noted that the mechanism for dealing with any inability to obtain consent from an owner under s 42(1)(h) for work including low impact exploration work must be through the mechanism of obtaining a waiver from the Department Head under s 42(3), and the legislature had committed that to the judgment of the Director, rather than the judgment of the Court.[49]

34 Senior counsel for the defendant also submitted that it would not be open to grant a declaration in the terms sought by Barfuss, including by reference to the concept of preparation of a work plan and performing low impact exploration, because this would be insufficiently certain as to the activities which were permitted or the purposes for which the defendants were injuncted from preventing access.[50] Senior counsel contended that the definition of low impact exploration in Schedule 4A provided an insufficient guide because the phrase 'has a meaning that survived the schedule', and did not provide a true definition.[51]

35 Finally, senior counsel for the defendants proposed that interim injunctive relief would be unnecessary as the parties could, with the benefit of submissions and observations made at the hearing, seek to agree to 'at least a preliminary inspection'.[52]

36 The relief sought by Barfuss involves consideration of its current rights to access the Property for two purposes - first, for the preparation of a work plan, and secondly, for the purpose of conducting low impact exploration, as those concepts are defined under the Act.

37 With respect to entry onto the land in order to prepare a work plan, I take the view that the scheme of the Act does not require the consent of the owner of the property. That is because the terms of the Licence and s 14 of the Act permit the holder of a mining licence to carry out mining and other activities on the land, subject to section 42(1). The requirement of written consent of the owners in s 42(1)(h) applies only to a situation where the holder of a mining licence is to 'carry out any work on the land covered by the licence'. 'Work' is not defined in the Act. For the following reasons it does not in my view encompass all and any activity on land covered by a licence, and does not encompass the inspections and actions as may be necessary in order to prepare a work plan.

38 First, it is relevant in considering the meaning of 'work' to note that in addition to the requirement of consent in s 42(1)(h), one of the other conditions on carrying out 'work' on land covered by a licence is the requirement in s 42(1)(a) that a 'work plan' be obtained. A 'work plan' under s 40 is required before any 'work' can be carried out on the land and so is necessarily antecedent to the work itself. As a matter of logic, given that no work can lawfully occur before the submission and approval of a 'work plan', the Act contemplates that there may be actions taken to prepare a work plan compliant with the Act which will not constitute 'work'.

39 Secondly, the nature of the requirements of a work plan are such that it will necessarily involve being able to enter the land and assess different features of the environment, and potentially undertake some activities on the land.

40 Section 40(3) provides that a work plan 'must' satisfy several criteria, most relevantly for present purposes that it must:

(a) be appropriate in relation to the nature and scale of the work proposed to be carried out; and

(b) identify the risks that the work may pose to the environment, to any member of the public, or to land, property or infrastructure in the vicinity of the work; and

(c) specify what the licensee will do to eliminate or minimise those risks as far as reasonably practicable; and

(d) if the licence is a mining licence or prospecting licence, in relation to the mining activities proposed to be carried out under the licence, include a plan for consulting with the community that demonstrates that the licence holder will use appropriate and effective measures to consult with the community throughout the period of the licence and is prepared in accordance with the regulations and any guidelines issued by the Minister relating to such plans ...; and

(e) if the licence is a mining licence or a prospective mining licence under which mining activities are proposed to be carried out, include a rehabilitation plan for the land proposed to be covered by the licence; ...

41 Given the contents of a work plan that need to be addressed by reason of s 40(3), including identification of the risks the work may pose to the environment, any member of the public, land, property or infrastructure in vicinity of the work, and then to specify what the licensee will do to eliminate or minimise those risks as far as reasonably practicable, as well as the requirement of a rehabilitation plan, it appears to be contemplated that the licence holder could access and inspect the land. However there is no distinct requirement in the Act that the licence holder must obtain consent in order to access the land to prepare a work plan. The requirement for the owner to obtain the consent of the owner of private land is limited to the circumstances in which the licence holder intends to 'carry out any work' on the land.[53]

42 In relation to the question of 'low impact exploration', s 40(2) makes it clear that the requirement in s 40(1) for a work plan does not apply to a licensee who proposes to carry out only low impact exploration work. However, the question of whether low impact exploration constitutes 'work' under s 42(1) of the Act, and thus attracts either the requirement for the owner's consent, or a waiver of the requirement of consent by the Department Head under ss 42(2) and (3), is less clear. Noting the absence of any definition of the term 'work' under the Act, it is necessary to consider the context and purpose of the Act in determining whether low impact exploration falls within the scope of 'work' in s 42(1).

43 As observed above, 'low impact exploration' is defined in Schedule 4A of the Act to mean 'exploration' that does not involve any of a list of specified activities. The word 'exploration' is defined exhaustively in s 4 of the Act, as follows:

exploration means exploration for minerals and includes -

(a) conducting geological, geophysical and geochemical surveys; and

(b) drilling; and

(c) taking samples for the purposes of chemical or other analysis; and

(d) extracting minerals from land, other than for the purpose of producing them commercially; and

(e) in relation to an exploration licence, anything else (except mining) that is specified in the licence

44 Section 40(2)(a) provides that the requirement to lodge a work plan with the Department Head does not apply to a licensee who proposes to carry out only 'low impact exploration work'. The reference to 'low impact exploration work' could have the consequence that it is to be regarded as 'work' for the purpose of s 42(1) of the Act.

45 However, I also observe that the definition of 'low impact exploration' in s 4 of the Act is a definition of 'low impact exploration' rather than of 'low impact exploration work' and the substance of that definition does not include any reference to 'work'. The definition of 'exploration' in s 4 of the Act, which guides the interpretation of 'low impact exploration', does not include any reference to 'work' either, and suggests that 'exploration' may be intended to be distinct from the concept of what constitutes 'work'.[54]

46 That consideration does not resolve the question of whether consent is required for low impact exploration work to be carried out by the holder of a mining licence. Other aspects of the Act, not addressed in argument, may be relevant to the question. For example, s 43 of the Act contains restrictions applicable to the holder of an 'exploration licence' or 'retention licence' carrying out any work on the land covered by the licence, in similar but not identical terms to the requirements applicable to the holder of a mining licence under s 42. The holder of an exploration licence or retention licence must not carry out work on land covered by the licence unless certain conditions are complied with. Those conditions include the requirement in s 43(1)(e) that the licensee has obtained the written consent of the owner of private land or entered into compensation agreements. Section 43(1A) provides that some of the conditions do not apply to low impact exploration, but it does not stipulate that the requirements of s 43(1)(e) as to consent or compensation agreements do not apply. The fact that the consent or compensation requirements remain applicable to low impact exploration in the context of an exploration or retention licence may be an indication that they are also intended to apply with respect to low impact exploration in the context of a mining licence under s 42. This and other issues of construction including legislative history are matters that would require further consideration at any final hearing of the matter.

47 For the purposes of the interlocutory application, I am prepared to accept that there may be activity necessary for the preparation of a work plan, which may fall within the description of low impact exploration, but would not constitute 'work' for the purposes of s 42(1).

48 It appears to me that, given the quite complex contents of a work plan that need to be addressed by reason of s 40(3), including identification of the risks the work may pose to the environment, any member of the public, land, property or infrastructure in the vicinity of the work, and then to specify what the licensee will do to eliminate or minimise those risks as far as reasonably practicable, as well as the requirement of a rehabilitation plan, preparation of a work plan may involve activity going beyond simply walking around the Property observing it. It may also necessarily need to involve some activity of the nature of low impact exploration as defined in the Act, such as clearing foliage or taking some samples. This indicates to me that low impact exploration of that kind and for that purpose may not be intended in this Act to fall within the concept of doing work under the Licence in s 42(1) of the Act. There is an argument that 'low impact exploration' is not subject to the s 42(1) requirements relating to the carrying out of work, given it is exempt from the requirement of a work plan and it would be consistent that it may also not be subject to the requirement in s 42(1)(h) of obtaining the written consent of the owner.

49 In coming to that conclusion, I also take into account the nature of what is defined to be low impact exploration. It is 'exploration' as defined under the Act, but it excludes categories of activity that would involve a significant degree of intrusion on, and potential damage to, the land.

50 However, for the reasons discussed at paragraphs [42]-[46] above, there remain questions as to the application of the consent and compensation provisions of s 42(1)(h) of the Act to the concept of 'low impact exploration' which involve some complexity and should be the subject of further consideration in any final hearing.

51 I determined that it was not appropriate to give any relief in the form of a declaration. The first declaration sought by Barfuss in the originating motion was a declaration that:

[T]he plaintiff is the holder of mining licence MIN5561 (Licence) in respect of the property known as 515 Charlotte Spur Track, Swifts Creek, Victoria 3896.

52 That Barfuss held this mining licence was not in dispute[55] and the making of the declaration as to that fact did not appear to serve any purpose in furthering the resolution of the issues. It was not pressed at the hearing by Barfuss.

[T]he plaintiff has the right under the Licence to enter and do work within the meaning of the Mineral Resources (Sustainable Development) Act 1990 ('the Act'), including a right to access the property to conduct 'low impact exploration work'.

54 An alternative declaration was proposed by Barfuss at the hearing of the matter, in the following terms:

As the holder of mining licence MIN5561 (Licence) in respect of the property (Property) known as 515 Charlott Spur Track, Swifts Creek Victoria 3896, the plaintiff has the right to enter the Property to prepare a work plan and to conduct low impact exploration work in accordance with s 40(3) of the Mineral Resources (Sustainable Development) Act 1990 ('the Act').

55 I would not have been willing to make a declaration in the original terms sought, noting that it would permit access to the land to enter and do 'work' within the meaning of the Act, including low impact exploration work. Given that a work plan is required to carry out any 'work' under the Act, and no work plan has yet been prepared, a declaration in those terms would be inappropriate. In extending to authorising entry for 'work' generally, and including low impact exploration, such a declaration would go further than Barfuss' current entitlements under the Licence and the Act.

56 With respect to the narrower terms of the declaration proposed at the hearing, I accept the defendants' submission that a declaration to that effect would be in the nature of final relief. There are issues in regard to the construction of the Act that make it undesirable for me to give any declaration as to the status of low impact exploration under the Act without further opportunity for the parties to address that question in a final hearing or at least, as I will come to, to arrive at a mediated agreement between them about further access and entitlements, against the background of these reasons.

57 To obtain an interim injunction pending the final hearing of this matter, Barfuss was required to establish that there was a serious question to be tried as to a legal or equitable claim for relief; that damages would be an inadequate remedy; and that the balance of convenience favoured the grant of the injunction.[56]

58 For the reasons above, I consider that Barfuss has made out a prima facie case that it, as mining licensee, is entitled to enter onto the Property for the purposes of preparing a work plan and conducting low impact exploration work without the written consent of the proprietors. There is a serious question to be tried on those issues.

59 None of the matters raised by the defendants was relevant to the existence of that serious question to be tried. There was no explanation on behalf of the defendants why the fact of Barfuss not having complied with the condition as to expenditure of money on work on the Property, or having completed a work plan[57] meant that it did not have an entitlement to access the land to prepare a work plan. There was also an apparent acceptance that Barfuss would have a right of access for the purpose of preparing a work plan (albeit no agreement as to the scope of the actions that could be taken on the Property for that purpose). In any event, any non-compliance with the conditions arose from the defendants' own actions in refusing to permit Barfuss to access the land to enable preparation of a work plan, or to spend the requisite amounts on work in the licensed area. I was also not persuaded by the submission that all that Barfuss as licence holder was permitted under the Act to do, if it was permitted to access the Property for the purposes of preparing a work plan, was a 'walk around' inspection. There was no foundation identified in the legislative scheme for such a specific limitation, although as discussed above I do accept there are different interpretations open as to whether consent is required for low impact exploration.

60 I was also persuaded that damages would be an inadequate remedy for Barfuss, noting the evidence of the condition on the Licence that a work plan must be completed by 5 September 2024, and that if Barfuss does not complete the work plan, the relevant Minister may cancel the Licence. The course of the lengthy negotiations between the parties, and the nature of the conditions that the defendants had sought to place on Barfuss having access to the Property, some of which were conceded to have been unnecessary,[58] also made the defendants' proposal for further time to negotiate the terms of a preliminary inspection an inadequate alternative.

61 As to the balance of convenience, I considered Barfuss' evidence as to the time likely to be required for the preparation of a work plan, and as to the potential consequences if the work plan was not completed, as noted in the preceding paragraph. I also considered the evidence of any impact on the defendants that this access may have. The evidence is that the Property is used for the grazing of sheep, and I am inferring for the purposes of this application, although there was some controversy between the parties on this issue, that there may be a residence on the Property, though no evidence was presented that there is any person currently residing in that residence.

62 There was no evidence in the affidavit filed on behalf of the defendant of the damage feared to property should Barfuss be given a right to enter, but I infer from the correspondence that there is a concern about potential damage to the Property, about the security of the Property, about the wellbeing of the sheep on the Property and about any liability that the defendants as owners of the Property may[59] incur by reason of Barfuss being on the Property. I note that in the course of negotiations Barfuss proposed that it would agree to promptly repair any damage caused, to enter and access the Property at its own risk, and to indemnity the defendants against claims, demands, actions, costs, judgments and expenses that may occur as a result of Barfuss entering or accessing the Property.[60]

63 In circumstances where Barfuss provided an undertaking as to damages in the ordinary form, which would cover any such damage that may arise from the grant of an injunction, I was persuaded that the balance of convenience favours the grant of an injunction, with any damage arising likely to be in the nature of property damage or other damage that could be ultimately remedied by compensation which would follow from the undertaking as to damages and also be likely to arise under the terms of the Act.

64 Given the questions arising as to the status of low impact exploration and whether it could be considered to be 'work' for which consent of the owners or occupiers of the land under s 42(1)(h) of the Act is required, I considered it preferable, in framing the terms of the interim injunction, to facilitate the preparation of a work plan, and only the performance by Barfuss of that low impact exploration which is necessary for the preparation of the work plan. The preparation of the work plan is the current priority for Barfuss, and no further 'work' can be carried out until that is completed.

65 I considered that it was not appropriate to have the injunction extend any later than the date on which the licence condition requires the work plan to be completed. The order therefore extends until 5 September 2024, rather than the date identified in the orders proposed by Barfuss at the hearing, which proposed an injunction for a period of two years from the date of the hearing, noting the estimate given by Ricardo Barfuss on behalf of Barfuss as to the period which would be required to prepare the work plan.

66 On Barfuss giving the undertaking as to damages in the usual form, I ordered that the defendants were restrained until 5:00pm on 5 September 2024, directly or indirectly whether by themselves, their servant or agents or howsoever from restricting Barfuss from entering on the Property to prepare a work plan or conduct low impact exploration work for the purpose of preparing a work plan within the meaning of the Act. This order was subject to the exception that Barfuss could not enter into any residence of the defendants on the Property, and the defendants were entitled to keep any residence locked. I also, taking into account the concerns of the defendants, ordered that the plaintiff give the defendants 24 hours' notice of Barfuss, or any of its servants or agents, entering the Property.

67 I raised with the parties whether referring the proceeding to a mediation by a judicial officer would be likely to assist in resolving the remaining dispute as to access to the Property. Barfuss supported a mediation and the defendants did not oppose it. I therefore also made orders referring the matter to mediation before a judicial officer, to be conducted by 15 April 2024.

[1] Affidavit of Natalie Claire McCabe sworn on 2 November 2023 (McCabe Affidavit), [7]; Exhibit NCM-1, 4, 12.

[2] McCabe Affidavit, [6]; Exhibit NCM-1, 1.

[3] Affidavit of Ricardo Barfuss sworn on 5 December 2023 (Barfuss Affidavit), [14]; Affidavit of Steven Maurice Dixon Hoban sworn 29 November 2023 (Hoban Affidavit) Exhibit SMH-1, p 36.

[4] Barfuss Affidavit, [4]; Exhibit RB-1, 10-15.

[5] Mineral Resources (Sustainable Development) Act 1990 (the Act), s 14(1).

[9] By originating motion filed on 6 November 2023 and summons on the originating motion filed 9 November 2023.

[10] McCabe Affidavit, [7]; Exhibit NCM-1, 4.

[11] McCabe Affidavit, [7]; Exhibit NCM-1, 4-11.

[12] McCabe Affidavit, [8]; Exhibit NCM-1, 13.

[13] Section 101 of the Act provides that evidence given to a Mining Warden must not be used in any proceeding before a court.

[16] McCabe Affidavit, [32]; Exhibit NCM-1, 69.

[17] McCabe Affidavit, [33]; Exhibit NCM-1, 82.

[18] Barfuss Affidavit, [1], [6], [9].

[22] McCabe Affidavit, Exhibit NCM-1, 14.

[23] McCabe Affidavit, [11]-[29]; Hoban Affidavit, [6]-[17].

[24] McCabe Affidavit, [10]; Exhibit NCM-1, 17.

[25] McCabe Affidavit, [11]; Exhibit NCM-1, 18-19.

[26] McCabe Affidavit, [12]; Exhibit NCM-1, 21-22.

[27] McCabe Affidavit, [13]-[17]; Exhibit NCM-1, 23-35.

[28] McCabe Affidavit, [14]; Exhibit NCM-1, 24.

[29] McCabe Affidavit, [18]; Exhibit NCM-1, 36-38.

[30] McCabe Affidavit, [19]-[24]; Exhibit NCM-1, 39-61.

[31] McCabe Affidavit, [23]; Exhibit NCM-1, 57.

[32] McCabe Affidavit, [23]; Exhibit NCM-1, 57.

[33] McCabe Affidavit, [24]; Exhibit NCM-1, 54.

[34] McCabe Affidavit, [25]; Exhibit NCM-1, 62.

[35] McCabe Affidavit, [27]-[28]; Exhibit NCM-1, 64.

[36] McCabe Affidavit, [29]; Exhibit NCM-1, 64.

[37] The second declaration sought was 'A declaration that the plaintiff has the right under the licence to enter and do work within the meaning of the Mineral Resources (Sustainable Development Act) 1990 (the Act) including a right to access the property to conduct "low impact exploration work"'. The injunction sought was 'An injunction restraining the defendants from restricting or denying the plaintiff's right to access to the Property in accordance with the plaintiff's access rights under the Licence and the Act'.

[38] Plaintiff's Submissions dated 8 December 2023, [12], [39].

[39] Plaintiff's Submissions dated 8 December 2023, [33].

[40] McCabe Affidavit, [29]; Exhibit NCM-1, 64.

[47] Transcript 12/12/23, T28.14-.21; 30.13-31.12.

[48] Transcript 12/12/23, T10.26-11.2; 32.19-.31.

[54] I also observe that s 7(b) of the Act refers to the Minister administering the Conservation, Forests and Land Act 1987 being able, from time to time, by notice in the Government Gazette, to jointly declare an exploration activity to be 'low impact exploration' for the purposes of the Act. There is not an invariable connection in the Act between the concept of 'low impact exploration', which is the defined term, and the concept of low impact exploration work.

[55] McCabe Affidavit, [7]; Hoban Affidavit, [3.1].

[56] Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2016) 227 CLR 57, 68 [19]; 81-82 [65]; 83-84 [70]-[71]; 103 [138].

[57] The defendants' contention that the licence was subject to a condition that the licensee must submit a mining work plan within 12 months of the grant of the licence (Hoban Affidavit, [21.2]) was in any event misconceived in that it did not take into account the evidence that this condition had been varied to extend the time for compliance with that requirement to within 24 months of the grant of the licence (McCabe Affidavit, [33]).

[58] Transcript 12/12/23, T11.12-16; T31.13-27.

[59] See also Transcript 12/12/23, T37.31-42.1.

[60] McCabe Affidavit, [12]; Exhibit NCM-1, 21-22.