Plaintiff v First Defendant

STATUTORY INTERPRETATION - Meaning of 'work' - Meaning of 'low impact exploration'.

1 This proceeding relates to privately owned land in Swifts Creek, Victoria which was originally alienated by the State as a 'Crown Grant'. That Crown Grant was subject to a reservation on the title, permitting mining on the land by a person holding a miner's right or licence. There is a dispute about access to and use of the land between the defendant registered proprietors, who use the property primarily for grazing sheep, and the plaintiff which is the holder of a miner's licence in respect of the land, and wishes to undertake subterranean gold mining. The issues for this Court relate to the extent to which the licensee is permitted to undertake various preparatory or exploratory activities on the land, including diamond core drilling and mineral sampling.

2 The plaintiff, Barfuss Corporation Pty Ltd is a company controlled by members of the Barfuss family. It has, since 5 September 2022, held the mining Licence[1] in respect of the Swifts Creek property (the Property).[2] The defendants, Ms Shelley King and her mother, Ms Jenny Miles, purchased the Property in 2019 and have been the registered proprietors since 11 April 2019.[3]

3 The Crown Grant for the Property was subject to reservations, which continue to be registered, permitting the holder of any miner's right or licence to enter and to mine for minerals.[4] The Licence, granted under the Mineral Resources (Sustainable Development) Act 1990 (Vic) (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] Before Barfuss is entitled to carry out any mining or exploration 'work' on the Property, it is required under the Act to prepare a work plan which identifies risks that the mining work may pose and specifies measures to eliminate or minimise those risks, among other matters.[6]

4 Since around September 2022, Barfuss has been seeking access to the Property to perform exploration and to prepare a work plan. The defendants, Ms King and Ms Miles, initially resisted giving Barfuss access to the Property, other than for limited days and on various conditions as to what Barfuss is permitted to do. In November 2023, Barfuss issued a proceeding 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 access to the Property.[7]

5 I granted an injunction at that time to restrain the defendants from restricting Barfuss' access to the Property for inspections and activity defined as 'low impact exploration work', to the extent that this activity was required for the preparation of a work plan.[8] I declined to grant the declarations sought as there was no dispute that Barfuss held the Licence and therefore it was unnecessary to make a declaration to that effect. It was not open to declare that Barfuss had the broader right to do 'work' on the Property within the meaning of the Act, as it had not at that time complied with a number of preconditions imposed by the Act to the performance of mining work. These included preparation of a work plan[9] and requirements of agreeing or determining with the defendants, as owners of the land, the amount of compensation payable, or otherwise obtaining their consent.[10]

6 Subsequently, there were disputes between the parties as to the scope of the activity that Barfuss could undertake on the Property pursuant to the Licence, and as to the activity in respect of which access was protected by the injunction. On 9 May 2024 after the matter had returned to Court I varied the injunction to remove reference to gaining access for the purpose of 'low impact exploration work'. That injunction also expressed the access which was not to be restricted by the defendants as being access to 'prepare a work plan for work under the Licence.'[11] I later declined to extend the injunction further.[12]

7 Barfuss applied to amend its originating motion in October 2024 to make the relief sought more specific. This was unopposed and orders were made for the filing of the amended originating motion. The relief then sought was as follows:

1. A declaration that the plaintiff is holder of mining licence MIN5561 (Licence) in respect of the property known as 515 Charlotte Spur Track, Swifts Creek, Victoria 3896 (Property).
2. A declaration that under the terms of the Licence and section 40 of the Mineral Resources (Sustainable Development) Act 1990 ('the Act'), the diamond core drilling and mineral sampling work that Barfuss seeks to do at the Property in order to prepare the work plan is 'low impact exploration work' within the meaning of the Act and is permitted without the need for a work plan.
3. 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.
4. Costs.
5. Such further or other orders as the Court considers appropriate.[13]

8 As a result of the amendments to the originating motion at the final hearing of the proceeding, the substantive dispute had narrowed to, essentially, whether Barfuss was entitled to undertake the specific activities of diamond core drilling and mineral sampling on the Property without preparing a work plan or complying with compensation or consent requirements under the Act; and whether an injunction should be issued to restrain the defendants from restricting Barfuss' access to the Property.[14]

9 In the interlocutory stages of the proceeding, Barfuss had initially contended that it owned certain mining equipment which had been left on the Property, and that it should not be restrained by the defendants from accessing that equipment. The claim of ownership was based on the fact that, as explained further below, a member of the Barfuss family had been involved in mining on the land at an earlier time, up until around 1992. Barfuss later accepted that it did not own the mining plant and equipment[15] and that ownership had reverted to the Crown pursuant to s 114 of the Act. Section 114 provides that if a licensee does not remove any plant from land before or within the period of 6 months after a licence ceases to apply to the land, the plant becomes the absolute property of the Crown at the end of that period of 6 months.[16] Matters relating to the plant and equipment and structures on the Property were, therefore, not directly in issue at the final hearing.

10 The parties agreed a statement of issues for the final hearing, which helpfully distilled the issues to be determined as follows:

1. Whether Barfuss' proposed diamond core drilling and mineral sampling on the Property constitutes 'low impact exploration' within the meaning of s 4 and Schedule 4A of the Act.
2. If the proposed diamond core drilling and mineral sampling is low impact exploration within the meaning of Schedule 4A of the Act, whether by reason of ss 40(2)(a) of the Act, Barfuss is not required to lodge a work plan with the Department Head for its proposed diamond core drilling and mineral sampling.
3. Whether any entitlement on the part of Barfuss to carry out diamond core drilling and mineral sampling on the Property is subject to ss 42(1) of the Act.
4. Whether an injunction in the terms of order 3 of the Amended Originating Motion should be ordered.
5. Whether the Court should make any declarations.

11 In addition to the issues in paragraphs 2 and 3, Barfuss also raised the following issues:

(a) Is the diamond core drilling program necessary in order to gather the information necessary to prepare a mining work plan? This is a question that the defendants say is unnecessary to answer. However it is understandable that Barfuss continued to press that issue in light of the way in which the proceeding had developed and the way in which my judgment on the interim injunction had addressed the issue of access to the Property by reference to the preparation of a work plan.[17] It is desirable to answer this question given the ongoing disagreements between the parties.

(b) Whether, even if it is found that the diamond core drilling program was work which required compliance with s 42(1)(h) of the Act, an injunction should be issued to permit access for other purposes.

(a) The proposed diamond core drilling and activity ancillary to it does not constitute 'low impact exploration' as defined by the Act.

(b) The proposed diamond core drilling is not activity which is necessary to obtain the information required in a work plan as required by s 40 of the Act, so that a valid work plan could be prepared without information obtained from a drilling program.

(c) The diamond core drilling and activity ancillary to it is 'work' for the purposes of s 42(1) of the Act, and must comply with the requirements in that section including the consent or compensation requirements of s 42(1)(h).

(d) It is inappropriate given these findings to grant the second declaration sought by Barfuss. There is no utility in granting the first declaration as the fact of the Licence is undisputed. It would not be appropriate to grant any other declaration as to sampling along or other matters, given that no other declaration had been identified in advance of the hearing with specificity and the evidence was insufficient to support the making of a declaration.

(e) It is not appropriate to grant the injunction sought or any other injunction.

The terms of the mining reservation on the Crown Grant

13 The Property comprised several parcels of land registered on the Land Titles Register. The reservation on the Crown Grant was recorded on the certificates of title on the Register, and provided in relevant part as follows:

PROVIDED ALWAYS that the said land is and shall be subject to be resumed for mining purposes under Section 168 of the Land Act 1928. AND PROVIDED also that the said land is and shall be subject to the right of any person being the holder of a miner's right or of a mining lease or mineral lease under the Mines Act 1928 or any corresponding previous enactment to enter therein and to mine for gold silver or minerals within the meaning of the said Act and to erect and occupy mining plant or machinery thereon in the same manner and under the same conditions and provisions as those to which such person would for the time being be entitled to mine for gold and silver in and upon Crown lands.[18]

The statutory scheme applicable to mining licences and entitlement of licensee to perform mining work on privately owned land

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

15 The purpose of the Act is stated in s 1 as being 'to encourage mineral exploration and economically viable mining and extractive industries which make the best use of, and extract the value from, resources in a way that is compatible with the economic, social, and environmental objectives of the State'. Relevantly, its objectives are identified as:

(a) to encourage and facilitate exploration for minerals and foster the establishment and continuation of mining operations by providing for, inter alia, an efficient and effective system for the granting of licences and other approvals (s 2(1)(a)); and

(b) to establish a legal framework aimed at ensuring that -

(i) risks posed to the environment, to members of the public, or to land, property or infrastructure by work being done under a licence or extractive industry work authority are identified and are eliminated or minimised as far as reasonably practicable; and

(ii) consultation mechanisms are effective and appropriate access to information is provided; and

(iii) land which has been mined or from which stone has been extracted or removed is rehabilitated; and

(iv) just compensation is paid for the use of private land for exploration or mining; and

(v) conditions in licences and approvals are enforced; and

(vi) dispute resolution procedures are effective ... (s 2(1)(b)).

16 Section 13(1) provides that the holder of an exploration licence is entitled to carry out exploration on the land covered by the licence, subject to the requirements of s 43(1). Exploration is defined under section 4(1) as follows:

exploration means exploration for minerals and includes -

(a) conducting geological, geophysical and geochemical surveys; 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;[19]

17 Section 43(1) provides that an exploration licence holder[20] must not carry out any work on the land covered by the licence unless the licensee has an approved work plan, has entered into a rehabilitation bond in accordance with s 80 of the Act, and has obtained all necessary consents and other authorities relating to the land affected, required by the Act or any other Act.[21] If the land the subject of the exploration licence is private land, there are further requirements identified in s 43(1)(e) and (ea):

(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 and the licensee has been advised in writing of the result by the person or body making the determination; or

(iv) the licensee has purchased the land affected -

unless this requirement has been waived by the Department Head under subsection (2); and

(ea) the licensee has obtained the written consent or informed verbal consent of the owners and occupiers of the land affected, if the land affected is private land and the work being carried out involves exploring for minerals on land but does not involve -

(i) the use of equipment (other than non-mechanical hand tools) to excavate on the land; or

(ii) the use of explosives on the land; or

(iii) removing or damaging any tree or shrub on the land.

18 The holder of a mining licence is entitled, pursuant to s 14(1) of the Act, 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 other things incidental to that mining. Section 14 makes that entitlement subject to certain qualifications. Relevantly it provides:

(1) The holder of a mining licence is, subject to section 42(1), entitled to carry out mining on the land covered by the licence and -

(a) to explore for minerals; and

(b) to construct any facilities specified in the licence, including drives, roads, water races, tailing dumps, tailing dams, drains, dams, reservoirs and pipe-lines; and

(c) to do anything else that is incidental to that mining.

...

(3) A mining licence -

(a) is current for the time specified in the licence, not exceeding 20 years from the date on which it is registered unless the Minister decides otherwise;

(b) may be renewed in accordance with the provisions of this Part; and

(c) applies to the land described in the licence.

...

(5) A mining licence does not entitle the holder of the licence to only explore for a mineral resource during the currency of the licence.

(6) However, the Minister may, by notice in writing, authorise the holder of such a mining licence to only explore for minerals for a specified period of up to 2 years.

19 Section 42(1) (to which the licensee's entitlement to carry out mining in s 14(1) is subject) relevantly provides:

42 Commencement of work under mining licence or prospecting licence

(1) The holder of a mining licence or prospecting 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.

(b) the licensee has entered into a rehabilitation bond in accordance with section 80; and

...

(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.

20 Section 45 prohibits any work under a licence within 100 metres laterally of a dwelling house that existed before an approved work plan was registered in respect of the licence.

21 The Act imposes specific requirements applicable to 'agricultural land' covered by a mining licence, which are directed to balancing the economic benefits to Victoria or mining and agriculture. 'Agricultural land' is defined by s 4(1) as follows:

agricultural land means private land that is used primarily for -

(a) cultivation for the purpose of selling the produce of the cultivation; or

(b) keeping animals or poultry for the purpose of selling them or produce derived from them; or

(c) keeping bees for the purpose of selling their honey; or

(d) commercial fishing; or

(e) the cultivation or propagation for sale of plants;

22 Sections 26A (1) and (2) provide that if a licensee proposes to carry out mining on agricultural land covered by a licence, the licensee must prepare a statement of economic significance of the mining which contains an assessment of the benefits to Victoria of the proposed mining, including employment and revenue considerations. It must contain an assessment of the benefits of mining if it is not possible to carry out the mining on the agricultural land. Section 26A(4) provides:

The licensee must give the statement of economic significance to the owners and occupiers of the agricultural land -

(a) if the proposed mining forms part of the work proposed to be carried out under the licensee's initial work plan, no later than -

(i) 6 months after the date the licensee was notified that the licence had been granted; or

(ii) the date the licensee lodges the work plan under section 40(1) -

whichever is the earlier;

23 The owner or occupier of agricultural land may then apply to the Minister for the excision of the agricultural land the subject of the mining licence. The application must include an assessment of the benefits to Victoria in continuing the use of the land as agricultural land, and details of any aspect of the licensee's statement of economic significance that the owner disputes.[22]

24 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.

25 The Mineral Resources (Sustainable Development) (Mineral Industries) Regulations 2019 (Vic) stipulates some requirements for the content of the work plan. Regulation 40(a)-(b) stipulates that the information required in work plans for exploration work is specified in reg 41, and for work plans for mining work, in regs 42 and 43.

42 Information required in work plans - mining work

For the purposes of Regulation 40(b)(i), the specified information is a description of the mining work to be carried out under the licence which includes -

(a) a description of the sensitive receptors[23] in relation to the environment, any member of the public, or land, property or infrastructure in the vicinity of the work; and

(b) a location map of the work plan area and areas within 2km of the work plan area, drawn at an appropriate scale, that shows -

(i) the location of sensitive receptors identified; and

(ii) the extent and status of Crown lands and extent of private lands; and

(iii) residential, commercial and industrial development; and

(iv) public facilities and infrastructure; and

(v) rivers and streams; and

(c) a general description of geological information pertaining to the work, including -

(i) stratigraphy; and

(ii) any adverse geological structures; and

(iii) the minerals to be extracted; and

(iv) the estimated mineral resources and ore reserves; and

(d) a general description of the mine operations including -

(i) the method and scale of extraction; and

(ii) ore processing methods and facilities; and

(iii) waste disposal methods and facilities; and

(iv) stockpiling facilities; and

(v) other mine infrastructure; and

(e) a site map, drawn at an appropriate scale, that shows -

(i) the general layout of the mine, associated facilities and infrastructure; and

(ii) cross-sections and, in the case of an underground mine, long sections of the proposed extraction area; and

(f) in the case of an underground mine, a schematic and description of the workings of underground operations.

27 Regulation 43 provides that work plans lodged after 1 July 2020 must contain details of the proposed rehabilitation of land disturbed by mining work under the licence, including specific information going to proposed uses for the land after rehabilitation, the land form which will be achieved to complete rehabilitation, and information identifying and assessing risks that the rehabilitated land may pose to the environment, to members of the public or to land, property or infrastructure in the vicinity of the rehabilitated land.

28 Section 40(2) of the Act provides that the requirement in s 40(1) to lodge a work plan 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.

29 '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]

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

(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.

31 Various terms in the clause are defined in clause 2 of Schedule 4A, which may be relevant to the question of whether the proposed works are low impact exploration, including the following terms:

closed road means a road lawfully closed to public access by barriers (including roads closed seasonally, temporarily or permanently, and management vehicle only roads), roads which have been rehabilitated, and roads which are not trafficable due to the regrowth of vegetation;

...

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;

hardstand area means an open ground area with a prepared surface that is used for storing material and standing vehicles;

...

road means a road within the meaning of the Road Management Act 2004 and includes Crown land permanently or temporarily formed for the passage of motor vehicles having four or more wheels, and land specified as an unused road under section 400 of the Land Act 1958;

...

waterway means -

(a) a river, creek, stream or watercourse the name of which is registered under the Geographic Place Names Act 1998; ...

32 The Road Management Act 2004 (Vic) at s 3 provides an inclusive rather than exhaustive definition of 'road' as follows:

road includes -

(a) any public highway

(b) any ancillary area;

(c) any land declared to be a road under section 11 or forming part of a public highway or ancillary area.

33 The parties had filed affidavits in the context of the original application for an injunction, and in the interlocutory stages of the proceeding. At trial, the parties relied on those affidavits and further material for the purposes of the final hearing. The plaintiff relied on four affidavits of Ricardo Barfuss, who is employed as the manager of Barfuss,[24] and also on four affidavits of Barfuss' solicitor, Natalie McCabe of Gadens.[25] The plaintiff also relied at trial on an expert report of Dr Andrew Tunks, a geologist and the executive chairman of Meteoric Resources, a publicly listed mining company.[26]

34 The defendants relied on five affidavits of Ms King.[27]

35 Mr Barfuss, Ms King and Dr Tunks were all cross examined on their affidavits during the trial.

The Property, the defendants' activities on it, and the historical background to Barfuss' mining licence

36 Barfuss undertakes subterranean gold mining, and intends to mine underground for gold on the Property. The evidence was that Barfuss was essentially a family run company, and that the Barfuss family had a long background in gold mining. Mr Uwe Barfuss (the father of Ricardo Barfuss, the manager of Barfuss who gave the evidence on its behalf) was the sole director of Barfuss. The evidence of Ricardo Barfuss was that Uwe Barfuss had previously, through entities related to the Barfuss family, operated a gold mine on the Property, between approximately 1962 until 1992.[28] The Property or parts of it had been owned by companies related to the Barfuss family between October 1980 to October 1995. These family related companies also held mining licences between December 1982 and December 1993. Ricardo Barfuss gave evidence that Barfuss or other entities related to the Barfuss family had, when previously in possession of the site, both explored and mined the site. The family had constructed the crusher building, the 'office', and the additional shed during that period.[29]

37 Ricardo Barfuss and his father did not then go to the Property again until after this proceeding was commenced.[30]

38 Ricardo Barfuss described the past exploration as 'limited exploration activity' done 'on foot with a small hand held miner's pick, pickaxe'. The results of the exploration had been recorded on maps showing gold bearing reefs and historical mine sites and excavations.[31]

39 The Property is approximately 139.69 ha and is traversed by a creek.[32] Ms King and Ms Miles graze and breed sheep on the Property.[33] Ms King had maintained sheep for wool and for sale from January 2022.[34] Ms Miles maintains merino sheep for fine wool harvesting on the Property and on a neighbouring property.[35] In 2023, Ms King added a pure breed of sheep for breeding and sale at more profitable rates.[36] Ms King has a Livestock Production Assurance Accreditation and does work relating to lambing, shearing, crutching and drenching of sheep periodically during the year.[37] The Property has been classified by East Gippsland Shire Council as mixed farming and grazing for rating purposes since September 2023 (or earlier), and was registered with a property identification code with Agriculture Victoria within the Department of Jobs, Precincts and Regions in November 2020.[38]

40 The Property is described by Ms King as being an 'ugly property' in terms of terrain and bush[39] and being characterised by 'dangerously steep' slopes in some places which she traverses by horse, but which she described as unsafe for a car.[40] There is a flatter area which Ms King uses as a holding paddock for sheep.[41] There are several structures on the Property, including the building which Ricardo Barfuss described as an office, but which was now used by Ms King as a residence when she is working on the Property. The residence has a kitchen, bathroom and bedroom.[42] There are also two sheds, one referred to by Ms King as the garage, and by Ricardo Barfuss as the 'workshop'. Ms King and Ms Miles store fencing and repair equipment in the shed. Another large shed, referred to as the green shed by Ms King and the 'crusher building' by Ricardo Barfuss contains large mining equipment. The Property also has a disused tunnel with an open entrance approximately 90 metres from the residence.[43]

41 Barfuss applied for a mining licence on land including the Property in 2012.[44] The Licence was not granted until September 2022, for reasons that were not fully explained by Barfuss other than to acknowledge that the Department wanted further information.[45] The Licence was granted for a term of 7 years.

42 The Licence is subject to four conditions which are specific to Barfuss, and a range of general conditions. The specific conditions are:

(a) Barfuss as licensee must, from the date of registration of the Licence, expend $181,050 per year on work in the licensed area, unless this requirement is varied or suspended in accordance with the Act.

(b) Barfuss must submit a mining work plan, including a rehabilitation plan, within 12 months of the grant of the licence. This was varied on 6 September 2023 to require submission of the work plan within 24 months of the grant of the licence[46] and again on 22 November 2024, to require the mining work plan, including rehabilitation plan, by 31 December 2025.[47]

(c) Barfuss must submit an updated mineral resource incorporating material in measured, indicated and inferred categories using the Joint Ore Reserves Committee (JORC) Code standards and terminology, prior to the fifth anniversary of the Licence.

(d) Barfuss must rehabilitate all existing rehabilitation liabilities relating to previous mining activity within the mining licence boundary to the satisfaction of the Department and describe the works in the work plan to be submitted to the Department for approval.

43 The JORC Code was not in evidence. However Dr Tunks in his Report described it as follows:

The Australasian Code for Reporting of Exploration Results, Mineral Resources and Ore Reserves 2012 (The JORC Code) is a professional code of practice setting the minimum standards for public reporting of minerals exploration results, mineral resources and ore reserves.[48]

44 The general conditions of the Licence include the following which were relevant to the parties' submissions:

3.2 Prior to commencing ground intrusive work or work involving the removal or damaging of native vegetation under the definition of low impact exploration the licensee must submit a rehabilitation bond to the satisfaction of the Minister.

3.3 Where ground intrusive work or work involving the removal or damaging of native vegetation is carried out under the definition of low impact exploration the licensee must notify the Crown land manager (for works on Crown land) and the ERR [Earth Resources Regulator] Chief Inspector at least 7 days prior to the commencement of work. Notification must include:

• Start date, and

• Proposed ground intrusive work, and /or

• Proposed removal or damaging of native vegetation, and

• Location.

...

4 PUBLIC LIABILITY INSURANCE

4.1 Prior to commencing any work, the licensee must have public liability insurance that covers all work authorised under the licence and ensure the insurance is valid at all times while work occurs under the licence.[49]

1. PUBLIC SAFETY

5.1 The licensee must ensure that public safety is maintained within the licence area at all times, including through the use of fencing, gates and signage as required around the work areas.

...

1. REHABILITATION

25.1 The licensee must ensure that progressive rehabilitation of disturbed land is carried out as soon as possible including those areas used for exploration activities and not requiring an approved work plan.

....

1. LIVESTOCK, DOMESTIC ANIMALS AND CROPS

29.1 The licensee must take all reasonable measures to prevent adverse impacts to livestock and crops as a result of mining and exploration activities.

Barfuss' history with respect to the Property, the Licence and its engagement with Ms King and Ms Miles

45 Although the issues for determination have narrowed somewhat in the course of the proceeding, the history of dealings between the parties and the conduct of Barfuss' representatives in accessing the land does have some continuing relevance. It is relevant to whether the Court should grant Barfuss the permanent injunction it seeks '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'.[50] The conduct of Barfuss' representatives is one matter relevant to the appropriateness of any injunction in these broad terms, and also to the Court's discretion as to whether such relief should be granted.

46 On 19 September 2022, around 2 weeks after the Licence was granted, Barfuss made an application to the Office of the Victorian Mining Warden for a hearing to resolve a dispute between Barfuss and the defendants.[51] The parties engaged in correspondence with each other and in hearings with the Mining Warden[52] but the dispute as to access to the Property did not resolve. The defendants offered for Barfuss to have access to the Property but sought to impose a range of conditions on which that access could occur.[53] Barfuss issued the proceeding, seeking declarations and an injunction. I declined to grant the declarations but issued an interim injunction restraining the defendants from restricting Barfuss' access to the Property for the purposes of preparing a work plan for the proposed mining work.

47 In April 2024, an application was made by Barfuss for a further injunction to restrain Ms King and Ms Miles from restricting Barfuss representatives from accessing buildings and certain locations on the land.[54] Ricardo Barfuss gave evidence as to the activities Barfuss wished to undertake on the Property and which he characterised as being 'required' to prepare a work plan. This included gaining access to:

(a) mining equipment and machinery in a building he described as a 'crusher building'[55] and which Ms King described as a shed, which he described as being equipment belonging to Barfuss;[56] and

(b) an area he called 'the airstrip' (which Ms King described as a flat area used as a holding paddock for sheep).

48 This access was described by Ricardo Barfuss as being sought for the following purposes, which involved very significant activity on the Land:

(a) 'in compliance with the requirements under the Licence, including primary condition 1 [the preparation of a work plan] and general conditions 5.1 [public safety] and 25.1 [rehabilitation]:

i. Secure the tunnel entrance and commence work necessary to ensure the mine entrance is safe as there has been a small tunnel collapse;

ii. commence refurbishment of the mine tunnel located on the Property;

iii. undertaking water diversion from the mine entrance; and

iv. inspect, secure and repair the entrance to two additional mines located on the Property;

(b) in compliance with the requirements under the Licence including primary conditions 1 [work plan] and 3 [updated mineral resource]:

i. digging trenches for gold ore samples to be sent to chemical assays; and

(c) prepare a drill program before commencing exploratory drilling on site.'[57]

49 Ricardo Barfuss asserted in his April 2024 affidavit that Barfuss required 'unimpeded access to the Property, the crusher building and its surrounds, the workshop and the airstrip in order to comply with the requirements under the Licence (including the works required by the Licence to be undertaken from the date of registration) and to prepare the work plan'.[58] He also gave evidence that he had attended the property in January 2024, and the defendants had restricted access to the Property by locking the gate to the front entrance notwithstanding the injunction. He gave evidence that he had cut the chain locking the gate (and resecured it with another padlock), and that he had 'gained access to [Barfuss'] mining equipment and machinery stored in the crusher building'.[59] It was Barfuss' position that no work plan was required for all of the above works, nor any rehabilitation plan or compliance with the compensation or consent requirements of s 42(1)(h) of the Act. At the hearing in April 2024 Barfuss' counsel acknowledged that Barfuss did not own the mining plant and equipment, and that it had been abandoned to the Crown pursuant to s 114. It was, however, Barfuss' position that the terms of the reservation on the Crown Grant permitted Barfuss to use the plant and equipment. The relevant words of the reservation were the reference to the right of a licensee to enter the land 'to mine for gold silver or minerals ... and to erect and occupy mining plant or machinery thereon in the same manner and under the same conditions and provisions as those to which such person would for the time being be entitled to mine for gold and silver in and upon Crown lands'.[60] It was submitted that these words would permit Barfuss to use the mining machinery and occupy the structures on the land which had been used prior to 1993 by companies related to the Barfuss family for mining.[61] It was submitted that this remained the case notwithstanding that Ms King and Ms Miles were using the structures for purposes other than mining including in their sheep farming activities and as a residence.[62]

50 In Ms King's responding affidavit in April 2024, she stated that (notwithstanding the terms of the injunction) she had locked the gates.[63] She stated that Barfuss had given notice (as required by the terms of the injunction) of an intention for Barfuss representatives to attend the Property once in December 2023, but had then advised that they would no longer attend due to bad weather. After advising that Barfuss representatives would attend on 3 to 6 January 2024, Ricardo Barfuss attended the Property on 3 January. Ms King's evidence was that she had screwed and nailed sheets of iron to the green shed (or 'crusher building') and that Mr Barfuss had removed these iron sheets to enter it. Mr Uwe Barfuss then attended on 5 and 6 March. Her evidence at that time was that she had installed cameras on the Property and from that she could ascertain that since the grant of the injunction Barfuss representatives had attended the Property on three days for a total period of approximately 9½ hours.

51 The hearing of the April application was adjourned to permit Barfuss to file further evidence in support of the injunction sought. In particular, the opportunity was for further evidence to clarify identify the activities necessary to prepare a work plan, to minimise the potential for misunderstanding as to what activities Barfuss could undertake prior to obtaining the work plan and complying with consent or compensation requirements.[64]

52 In May 2024, Barfuss filed an further affidavit of Ricardo Barfuss which exhibited a document published by Resources Victoria titled 'Preparation of Work Plans and Work Plan Variations, Guideline for Mining Projects' (Work Plan Guideline) and identified works that were said to be required having regard to that Guideline.[65] The Work Plan Guideline described the pre-submission process for a work plan, and the content required for a work plan. The Work Plan Guideline described a process of engagement with the Earth Resources Regulator (ERR) which included submission to the ERR of 'Initial Proposal Information', site meeting with the ERR and potentially a pre-submission briefing with the ERR before submitting the work plan.[66] The activities said by Mr Barfuss to be necessary in order to prepare the work plan included 'stabilisation work at mine locations to enable safe access for sampling', 'repair of water pipe and electrical cable for water access for Diamond Core Drilling' and 'commencement of Diamond Core Drilling to enable preparation of a JORC statement in compliance with the third condition of the Licence'.[67] Activity of that nature was not specifically referred to in the Work Plan Guideline.

53 Mr Barfuss also gave evidence as to the mining licences held over the property which confirmed that the last mining licence had been held by a company associated with the Barfuss family and ended in December 1993.[68] The effect of the evidence was that this was the last time any of the structures on the land was used as mining plant or equipment (unless illegal mining, of which none of the parties were aware, had occurred).

54 Ms King filed an affidavit giving evidence that she and Ms Miles had made 'invitations' to Barfuss to access the Property at proposed times which Barfuss had declined to enter.[69] She confirmed that she had locked the gate to the Property. Her affidavit exhibited the contract of sale for the Property in January 2019, which referred to the shed and contents as goods being sold to the defendants with the land.[70] She gave evidence of the defendants' concerns as to safety on the Property if Barfuss was to engage in the proposed activity involving machinery and excavation.[71]

55 At the resumption of the matter in May 2024, I was not willing to grant the injunction facilitating Barfuss' access to the buildings and equipment on the Property. I considered that Barfuss' evidence as to the activities it proposed to undertake in order to prepare the work plan had significant deficiencies. There was no proper explanation as to why some of the quite significant activity proposed was required for the content required for a work plan.[72] There was no real evidence as to why access to the mining equipment was required for any purpose which was currently authorised on the Property, in circumstances where there was no work plan to authorise mining work, nor compliance with consent and compensation requirements of s 42(1)(h) of the Act.[73]

56 I made orders continuing the injunction restraining the defendants from restricting Barfuss' representatives from entering the Property for the purposes of preparing a work plan. The injunction prevented Barfuss or its representatives accessing the residence on the Property or any locked buildings.[74] Given the evidence filed by Barfuss of the Work Plan Guideline and its provision for consultation with the ERR, those orders specifically provided that nothing was intended to restrict entry by a representative of the ERR to the Property for the purposes of consulting with Barfuss with respect to the preparation of a work plan.[75] At Barfuss' request I again adjourned the plaintiff's application until June 2024 with orders permitting further evidence to be filed.

57 No further evidence was filed by Barfuss until the day before the June hearing, when an affidavit was filed referring to inquiries made of authorities relating to the plant and equipment on the Property which had not, by the date of the hearing, elicited any response. [76] No evidence or submissions were filed explaining the nature of the activities that Barfuss sought to undertake and why they were identified as necessary for the purposes of preparing a work plan or were otherwise authorised.

58 I determined it was appropriate to discharge the injunction given the absence of evidence identifying with any clarity the nature of the activities that Barfuss sought to undertake on the Property, or any basis on which the proposed activities were authorised. Because of the deficiencies in evidence as to exactly what activity Barfuss proposed to undertake and what that activity involved, I did not accept that there was a serious question to be tried that the activities were low impact exploration and did not require a work plan, or were authorised under the Act as activity preliminary to work and the requirement of a work plan. It also remained unclear whether reference to a right to 'erect or occupy' mining plant or equipment on the land in the reservation on the Crown Grant gave an entitlement to a licensee to occupy and use the structures in circumstances where their usage had changed since they were used as mining plant or equipment under a previous licence some decades before. I accepted, however, that on the current state of legal argument there was a serious question to be tried as to whether Barfuss had the right to access buildings and examine and potentially use mining equipment on the property.[77]

59 As to the balance of convenience, I considered this favoured the defendants. I took into account the defendants' concerns as to the safety of the mine shaft and other parts of the Property. I also accepted the defendants' submission that the uncertainty as to whether the Crown as owner of any abandoned mining equipment or structures took any position on Barfuss using it, made it inappropriate to make orders facilitating access to it given the Crown was not party to the proceeding.[78] I did not accept Barfuss' submission that access to structures on the Property was urgent and favoured the grant of the injunction.[79] Barfuss' evidence was that Uwe Barfuss had already inspected the mining machinery in the crusher shed. The evidence also did not establish that it had taken any material steps to progress the preparation of a work plan. There was no evidence that it had engaged with the ERR on any of the pre-submission steps identified in the Work Plan Guideline, despite the express terms of the injunction directed to facilitating this.[80] The evidence was that Barfuss had made few and irregular attempts to attend the Property, and it was accepted for Barfuss that the evidence did not establish that it had been acting quickly to progress a work plan.[81] Although there was evidence of some lack of cooperation by the defendants, it was not in my view such as to prevent access to the Property for activities such as scoping which was required for the work plan.[82]

60 The proceeding was later fixed for final hearing, which took place on 11 and 12 March 2025.

The nature of the activity proposed by Barfuss by the time of the final hearing

61 At the final hearing, Barfuss did not press access to any mining plant and equipment and the nature of the activities that Barfuss sought to progress had narrowed to a diamond core drilling program, which was described as being directed to enabling the plaintiff to work out where on the Property it wished to mine.[83] It was implicit in the second declaration sought that this activity was essential for it to prepare a work plan. It also contended that it was 'low impact exploration' for which no work plan was required and which was not 'work' which was required to comply with the other requirements of s 42.

62 The defendants took the position that it did not matter whether the work was required for preparation of a work plan. The issue was whether the activity was 'low impact exploration' and if so, whether it was nevertheless 'work' which was required to comply with all of the requirements of s 42(1). The defendants contended that the drilling program did not satisfy the definition of 'low impact exploration', and was 'work' which could only be carried out if the requirements of s 42(1) were satisfied.[84]

63 Barfuss' evidence to explain the nature of the diamond core drilling and why it was necessary and appropriate prior to any mining work plan being prepared was primarily the expert report of Dr Tunks. Ricardo Barfuss also gave evidence about the proposed diamond core drilling program and what it would involve.[85]

Evidence of Barfuss' communications with the Earth Resources Regulator and of the ERR's position

64 In addition to the evidence of Dr Tunks and Ricardo Barfuss, Barfuss' evidence included correspondence with the ERR, tendered through solicitor's affidavits.

65 There was first evidence of communications between Barfuss and the ERR in the period after the injunction had been discharged. On 12 June 2024, Barfuss sent an email to the ERR which attached an initial work plan proposal and requested a site meeting.[86] The initial work plan proposal described the proposed work as follows:

Work Plan

Above Ground Operations

Refurbishment of existing dams, securing and making safe old historic mining operations in the area that may be at risk of collapse or death/injury to passersby.

Below Ground Operations:

Mine Access: Through existing shafts and tunnels. These will need repair and refurbishment.

Mine depth: approx. 10m

Tailings: stored close to the mine using existing dams

Blasting: twice daily.[87]

66 A Senior Environmental Assessment Officer of the ERR, Colin Dell, responded on 7 July 2024, stating:

The description of work that accompanied the request for a site meeting was very high level and requires more detail to inform all parties of the work to be done, specifically the type of ore and any elements of concern (such as arsenic) shaft and adit locations, processing plant and method, tails dams etc. A map showing these features would be highly informative. I have also attached the ERR guidelines for mining work plan and rehabilitation plans to give an idea of the level of detail required.[88]

67 Barfuss also tendered evidence of correspondence from Colin Dell of the ERR dated 28 August 2024, in response to inquiries on behalf of Barfuss as to 'the scope of work required to be undertaken ... in order to complete preparation of the works plan'.[89] The correspondence noted that there 'appears to be confusion as to the type of work able to be conducted to meet the licence requirements/conditions, specifically what constitutes reconnaissance, exploration and mining'. The email stated that by reason of s 42(1)(h) of the Act, work could not be conducted on private land without written consent of the owner or occupier, unless compensation had been agreed or determined, and that exploration work also falls under s 42 of the Act. The email attached a general letter of advice. That advice did not provide any statement as to the specific requirements for a work plan for Barfuss pursuant to the Licence or how the work proposed by Barfuss was to be characterised. However, it contained some statements relating to exploration work and drilling, as follows:

• For minerals the Act defines two types of work plans, namely mining work plans and exploration work plans.
• Mining activities requires development and approval of a mining work plan. A mining work plan can incorporate elements of exploration, however its primary focus is mining.
• Sole exploration requires the development of and approval of an exploration work plan.
• In some circumstances deemed low risk, a work plan is not required for exploration work if ERR acknowledges the licensee can meet defined conditions to operate under the Code of Practice for Mineral Exploration.
• Low impact Exploration including drilling could potentially be conducted within MIN5561 if the conditions defined under the Code of Practice for Mineral Exploration are met.[90]

68 The letter did not express a view on whether the ERR regarded Barfuss' proposed program, as described in limited detail in the initial work plan proposal, was an exploration program requiring an exploration work plan or a mining activity with elements of exploration requiring a mining work plan. Barfuss tendered the Code of Practice for Mineral Exploration referred to in the ERR advice through Ricardo Barfuss. It contained a section titled 'Low Impact Exploration', which commenced with the following general observation:

The meaning of low impact exploration has been revised to a risk based definition that considers the level of environmental impact rather than the use of mechanical equipment. Low impact exploration activities have low social and environmental impacts and may include the drilling for core samples, the construction of tracks, and the limited removal of certain native vegetation. A work plan is not required for these activities, however, the licensee is required to adhere to all standard licence conditions and comply with the code.

Licence holders wishing to conduct low impact exploration must ensure that the required public liability insurance, bond and land owner consents are in place. On private land, consent to undertake low impact exploration activities requires the licensee to obtain written consent of the owners and/or occupiers of the affected land. Informed verbal consent is not permitted for low impact exploration activities which include ground disturbing work or the removal of native vegetation.[91]

69 The evidence included an exchange of correspondence relating to Barfuss' application for an extension of time for compliance with the requirement in condition 2 to submit a work plan. The ERR requested certain information as to what activities remain for Barfuss to complete a work plan.[92]

70 In response, Barfuss advised by letter from its solicitors[93] that Barfuss 'requires to undertake':

(a) diamond core drilling and systematic mineral sampling which it contended constituted low impact exploration and were necessary to prepare an estimate of mineral resources and ore reserves, for the purposes of reg 42(c), and site maps in compliance with regs 42(b) and (c); and

(b) inspection of the sampling and core drilling results by a geologist, who will then prepare a corresponding report setting out the findings from the samples.

71 Barfuss also stated that prior to the work plan, site inspection by WorkSafe Victoria, mining and structural engineers would be required. The letter also advised that all of the activities would take approximately 6 months to complete, assuming there were no delays due to adverse weather conditions or bushfires.[94]

The evidence of Dr Tunks on the diamond core drilling and sampling

The scope of Dr Tunks' expertise and admissibility of his opinions on the Act's requirements with respect to work plans

72 Dr Tunks is experienced in mining and has qualifications of a Bachelor of Science and a PhD in Geology. His PhD thesis was on Proterozoic gold deposits in Northern Australia. He had worked in the exploration and mining industry since 1987 and had planned and executed drilling and exploration programs in numerous international locations. He has also worked, in Australia, in Western Australian, Northern Territory, Queensland, Tasmania and South Australia. He gave evidence that those programs were conducted under the various regulations of the specific country or state in which the program took place and that environmental and safety considerations could vary widely depending on jurisdiction.[95] He agreed in cross examination that he had not done drilling or exploration programs in Victoria and did not have professional dealings with Victorian mining regulators.[96]

73 The defendants initially made objections to the admissibility of Dr Tunks' evidence on the issue of what a work plan requires because of the limits on Dr Tunks' expertise which did not extend to mining in Victoria.[97] In closing submissions the defendants ultimately did not press admissibility objections but submitted that there were limitations on his evidence on work plans as going to weight and relevance.[98]

What is involved in the programme proposed by Barfuss?

74 Dr Tunks observed that Barfuss was proposing 'an exploration program including a diamond drilling program and surface sampling'.[99] The program was described as involving both, but the primary emphasis was on the diamond core drilling. Dr Tunks' evidence was that diamond core drilling is 'one of several methods of drilling to collect a sample of material (rock) from beneath the earth's surface'. It involves taking a 'continuous stick of core' which is used to ascertain rock types or stratigraphy; the nature of contacts between different geological units; and geological features such as faults and veins. He gave evidence that diamond drilling 'is the gold standard of exploration drilling ... and provides the best quality sample that is a necessary part of any Mineral Resource Estimate which would under pin any Mining activities work plan'.[100]

75 The drilling uses a purpose built drill-rig (in this case a Boart Longyear DB520) and the process involves the following, insofar as it is relevant to activity on site:

(a) Drilling holes at intervals (placement of holes being identified to enable definition of subsurface geology). The drill rig would be manned by a driller and one or two others.[101]

(b) Injecting water into the drillhole under low pressure to circulate down the hole to lubricate the face of the hole and ensure that the diamond drill bit does not burn out due to frictional heating.[102]

(c) Preparation of a small pad for the operation of the drill rig, which will be a small horizontal cleared area to allow safe access to the rig and the water system. Based on the footprint of the Boart Longyear DB520, Dr Tunks estimated that the required pad would be a 'flat drilling pad in the order of 10-12m length by 4-5m wide'. He noted that Barfuss had proposed that a Caterpillar 302CR excavator will be used for pad preparation and rehabilitation.[103] He gave evidence in cross examination that it is appropriate to have the site flat for the rig and that 'typically you would bring in an excavator and simply scrape off a bit of top soil or block, whatever it is, and make a small flat pad that is just bigger than the drill rig itself'.[104]

(d) After completion of drilling, the collar positions of the holes are surveyed. Holes longer than 100m should be 'down surveyed' to understand the dip and direction of the hole. This is typically by a contractor with specialist surveying equipment, and is a process which is not environmentally sensitive.[105]

(e) On completion, the drill holes are capped with a small concrete plug to prevent the ingress or egress of water and the possibility of small animals falling into the hole. The drill pad and site should then be rehabilitated with any clearing and or changes in topography remediated.[106]

76 Dr Tunks' report also responded to the question 'what is mineral sampling'.[107] His answer is given in two parts, the first described as being given 'in the context of Diamond Drilling' and addresses the sampling process which would apply to the cores sourced from the diamond core drilling. The second refers to surface sampling of soil dug by hand and rocks 'sampled' from quartz veins in the subsurface using a hammer and a rock chisel.[108] He observed that typically soil sampling is done 'on a regularised grid such as 100m lines with 20m spacing between the lines', however he stated that he had not been provided with information on the detail of such a plan.[109] Dr Tunks also referred to the collection by hand by a geologist of surface material.[110]

Dr Tunks' observations on Barfuss' proposed drilling program

77 Dr Tunks' evidence was that his understanding of his instructions was that Barfuss was proposing 'an exploration program including a diamond drilling program and surface sampling', the aim of which was:

... to understand the presence (and or) absence of gold endowed structures and understand the economic viability of any mining project. ... It should be noted that there is no guarantee of exploration success and subsequent mining.[111]

78 Dr Tunks described the program as 'quite a large drill program, around 9,000 metres in total'.[112]

79 In Dr Tunks' view, the drilling would 'evaluate the Mineral Resource potential for historically mined gold deposits in order and ultimately to construct a Work Plan to recommence mining activities on ML MIN5561'.[113] His opinion that was:

Diamond drilling is crucial in the evaluation of any advanced exploration program where there is the possibility that the area will turn into a mine. In fact the Joint Ore Reserve Code (JORC 2012) typically requires that around 10% (for gold deposits) of all drilling and sampling be directly from diamond core as it is the most accurate sampling method to ascertain the presence of the target element. These results are then used when producing a Mineral Resource Estimate which is a quantification of the tonnes of ore and the grade of the mineralisation to calculate an estimate of the value of the deposit prior to mining. No meaningful economic assessment of a potential mine can be completed without such drilling and no mining work place could be compiled without the information gleaned from such a drilling program.[114]

80 Dr Tunks described the activity that Barfuss proposed as being part of an exploration phase of activity, which was essential to ascertain estimated mineral resources on the land. He stated there was no guarantee that the results would be positive and indicate a resource or reserve that was worth mining. His evidence was that the prior experience of mining on the land by the Barfuss family was not a substitute for this exploration program and that 'any assessment of the potential of this place for mining would need to be new'.[115]

81 Dr Tunks did not visit the Property[116] but was provided with a drill collar plan, which is a two dimensional map of the Property with geographic coordinates and drill holes plotted on the map, and aerial photographs of the land.

82 Dr Tunks considered the proposed drilling program as shown on a drill collar plan in the context of the description of low impact exploration work in Schedule 4A of the Act. Dr Tunks concluded that five of the proposed drill holes would be within 200 metres of a waterway, Riley Creek,[117] and so would fall within the category of work excluded from being low impact exploration by item (1)(k)(i) of Schedule 4A.[118] He also noted that there were several small creeks and tributaries of Riley Creek shown on the drill collar plan, but that these were not shown on the VICNAMES Register website as having a registered name, so would not be a 'waterway' as defined in the Act.[119]

83 Dr Tunks also considered whether any of the drill holes would be located on a slope steeper than 1 vertical : 3 horizontal (which is a category of work excluded from the definition of low impact exploration in item (1)(k)(ii) of Schedule 4A). He did this by superimposing drill collar sites identified on one map of the Property provided to him with his instructions, over a topography map which showed land contours at 20 metre intervals.[120] He calculated the rise using the contours and the north and east grid lines on the map. He identified a section of the Property in which the slopes 'are close [to] the limit of 1:3 rise over run', and identified 7 drill holes in that zone, some of which were also holes he had already identified as being within 200m of Riley Creek.[121]

84 Dr Tunks was cross examined as to the process by which he assessed some of the Property as potentially exceeding the 1:3 gradient. Dr Tunks acknowledged that the need to superimpose the drill collar plan sites on the contoured map, both being the two dimensional maps provided to him rather than a digital format, 'did create a small amount of uncertainty'.[122] He also acknowledged that in individual specific locations, within the 300 metres provided by the east /west grid lines 'there would be places where the hill could be slightly steeper and then flatten out again', and that there would be possibly small areas of greater than 1:3 rise over run. His evidence was that in those cases 'you simply would ignore those ... and you would move them slightly'.[123]

The evidence of Ricardo Barfuss as to the diamond core drilling program

85 Ricardo Barfuss gave evidence that Barfuss sought to undertake diamond core drilling in order to prepare the work plan to be submitted under the Licence.

86 The drilling was to be conducted with a Boart Longyear DB520 drill rig, which would be operated by Uwe Barfuss, and had been used in other projects in Queensland and the Northern Territory.

The drill rig will be transported to the licence area and Property by truck. However, once on the Property, the drill rig moves on rubber tracks and does not require roads to be constructed for it to drive on. The associated machinery and vehicles that will also be present on the Property during diamond core drilling will be a Land Cruiser four-wheel drive or utility vehicle, which will tow a trailer with a water tank, and a Caterpillar 302CR two-tonneexcavator.[124]

88 As to the manner of operation of the drill rig, Mr Barfuss' evidence was that:

The drill rig can operate on a slope as it has hydraulic jack stands. The drill rig can operate on slopes up to 30 degrees without any need to level the terrain. A copy of the operation manual of the drill rig is at page 99 to 110 of the Bundle. Barfuss will lay wooden planks on the surface upon which the drill rig will operate. A photograph showing the wooden support beneath the drill rig is at page 111 of the Bundle. This prevents the need to prepare any hard surface (such as concrete or gravel) upon which the drill rig will sit whilst in operation. The excavator will be used to move any boulders that may be in the way of proposed drill hole locations, and/or to level terrain in areas where necessary. However, as stated at paragraphs 16 and 17 above, Barfuss will not drill on slopes that are more than 1:3 rise over run, and so will not do any levelling on slopes greater than that gradient. [125]

89 Ricardo Barfuss said that Barfuss did not intend to create any road, structure or hardstand area as there was 'no requirement to create a hardstand area of any sort to facilitate the operation of the drill rig' and if circumstances changed, Barfuss would seek the consent of the defendants to do so.[126]

90 On the question of rehabilitation, Ricardo Barfuss' evidence was that in addition to the action referred to by Dr Tunks, the drill holes and drill pads would be rehabilitated in the following way:

The hole will then be rehabilitated using a concrete plug to ensure that nothing can fall down the hole. The surface will then be covered with soil to facilitate the regrowth of any grass. In the event that Barfuss was required to create a drill pad or flattened surface to safely operate the drill rig, Barfuss will ensure that the gradient and slope of the land is returned, as close as possible, to its prior state.[127]

91 Ricardo Barfuss acknowledged the conclusion reached by Dr Tunks that certain proposed locations for drilling would be in an area that may lie within 200 metres of a waterway, Riley Creek, and that some were in an area close to the limit of the 1:3 rise over run gradient. Barfuss would not drill holes in the area identified near Riley Creek, nor any of the areas that Dr Tunks identified as being close to 1:3 rise over run. The total number of holes which would be drilled was approximately 50 holes.[128]

92 Mr Barfuss' evidence was that Barfuss would comply with guidelines produced by Resources Victoria for the exploration and rehabilitation of mineral exploration sites.

93 In cross-examination Mr Barfuss gave evidence that Barfuss intended that the drilling would include holes deeper than 50 metres. He accepted that the potential time period for the entire drilling program of approximately 50 holes was a nine or ten month period.[129]

94 Mr Barfuss gave evidence about the access that he had to information about the site from the earlier operations on the Property by family companies. He accepted that he had maps of the Property prepared by an engineering firm on which certain information about gold bearing reefs, and the results of sampling had been marked. That information had been ascertained from previous mining and some limited exploration activity.[130] On the basis of that information Barfuss had considered it worthwhile to apply for the mining licence.[131] He accepted also that an initial work plan had been submitted to the ERR by Tim Crowley, a representative of Barfuss, which had contained an estimate that the site would yield 3,000 tonnes a year of ore.[132]

95 Mr Barfuss was asked about his understanding of the position of the ERR on Barfuss' proposed diamond core drilling program. Mr Barfuss' description of the ERR's position was that it was 'okay' to '... go ahead', which I reject as it is inconsistent with the ERR correspondence referred to above. Mr Barfuss expressed the view that Barfuss' right to proceed was inherent in the grant of the mining licence,[133] and that the effect of the reservation on the title was that he was free to go onto the Property and do mining work whether the owner consented or not.[134] He acknowledged that Barfuss had not asked the ERR whether the drilling and sampling program could be conducted without complying with the consent and compensation requirements,[135] but gave evidence that his view was that the ERR's requirements were irrelevant because Barfuss' mining licence did not require such regulatory compliance.[136] Mr Barfuss gave evidence that he was not aware of a requirement under the Act that Barfuss provide a statement of economic significance in respect of a site which is agricultural land.[137] He also confirmed that Barfuss had not spent $181,050 per year on work in the licensed area (other than on legal fees) which was a requirement of condition 1 of the Licence, but that it was his understanding that that condition of the Licence had been varied.[138] There was however, no evidence that this condition was varied (unlike condition 2 which requires submission of a work plan, the time for which had been extended until 31 December 2025).[139]

Evidence of Shelley King relevant to the proposed diamond core drilling program

96 The defendants relied on their affidavits filed throughout the proceeding and a final affidavit prepared for the final hearing which summarised the course of the defendants' dealings with Barfuss and addressed the diamond core drilling and sampling work that Barfuss wished to undertake. Ms King gave evidence that:

(a) She and Ms Miles have an established wool sheep producing business which is their main annual income. It is run from the Property, and from a neighbouring property at 383 Charlotte Spur Track over which they hold a lease, a property adjacent to 383 owned by Ms Miles, and property at 569 Charlotte Spur Track. The sheep graze on the Property and these additional properties and the defendants have about 400 sheep roaming the Property at any given time. Ms King is concerned that drilling work will 'ruin livestock feed sources by constantly driving over it'.

(b) She is conducting a breeding program on the Property and considered that diamond core drilling would disturb her breeding and grazing operations and may require her to remove the livestock from the Property.

(c) Diamond core drilling requires a large flat surface area for the set up of machinery and 'there are no flat surfaces on the [P]roperty'. Flattening the surfaces would damage the surface of the land and mean that it was not low impact exploration.

(d) Diamond core drilling requires water usage, and 'Barfuss will need to get approvals and licences from the necessary authorities for the use of water from the Riley's Creek as there are no other water sources on the [P]roperty.'

(e) Because the drilling would cause damage, Barfuss should enter a rehabilitation bond to enable the land to be rehabilitated. Barfuss had, in her view, failed to complete any rehabilitation following previous mining activity conducted by 'predecessors of the Barfuss family business' prior to vacating the Property in 1993.[140]

97 Ms King also gave evidence that in October 2024 she had by email 'invited' Barfuss to attend the Property between 30 October 2024 and 1 November 2024, and that this was declined by Gadens on Barfuss' behalf as Ricardo and Uwe Barfuss lived too far away. Gadens later advised on Barfuss' behalf that unless the defendants were inviting Ricardo and Uwe Barfuss onto the Property to commence drilling, Barfuss would await Court orders.[141]

98 Ms King gave evidence that despite Dr Tunks' evidence, she considered that there were other parts of the Property in addition to those he had identified that were steeper than the 1:3 rise over run. She described, in cross examination, having formed that view from a 'physical and visual of the [P]roperty, knowing it'.[142]

99 In cross examination Ms King gave evidence that she considered that Barfuss needed her and Ms Miles' consent even to enter on to the Property and to inspect any part of it, given that they owned the Property and had livestock on it.[143] She gave evidence that she had never been asked by Barfuss to do diamond core drilling on the Property.[144] She accepted however that she had received a letter from the solicitors for Barfuss asking whether an invitation to come on to the Property in October 2024 extended to undertaking diamond core drilling.[145] She said that she would not be opposed to Barfuss coming on to the Property to take samples with a shovel and a pick but she considered that bringing machinery on to the Property for drilling was of a different nature under the legislative provisions and the Code of Practice for Mineral Exploration. That required consent which the defendants did not give.[146]

Is Barfuss' proposed diamond core drilling and mineral sampling 'low impact exploration'?

100 Barfuss submitted that the drilling and sampling activities fall within the definition of low impact exploration and that a declaration should be made to that effect.[147] It referred to the legislative history of the definition of 'low impact exploration', which had originally been defined in s 4 of the Act, in a way which, among other things, encompassed exploration without using 'equipment (other than non-mechanical hand tools) to excavate on the land'.[148] That definition was substantially amended in a way which expanded the scope of the activities which would constitute low impact exploration, and moved to Schedule 4A by the Mineral Resources (Sustainable Development) Amendment Act 2014. Barfuss referred to the Explanatory Memorandum to this amending act, which stated in relation to Schedule 4A that it provided 'the revised definition of low impact exploration'. It then stated (emphasis added):

This amendment reflects recommendation 19 of the EDIC report to redirect the regulatory focus of exploration, mining and extractive work plans towards outcomes and away from prescriptive conditions, in order to better manage risk and achieve socially, economically and environmentally sounds [sic] outcomes.

The former definition of low impact exploration was structured in terms of the nature of the exploration activity, rather than its impacts and risks. In 2009, the Victorian Competition and Efficiency Commission published a report titled "A Sustainable Future for Victoria: Getting Environmental Regulations Right", which recommended that the definition focus on environmental impacts and risks rather than the use of mechanical equipment in order to conduct this form of exploration.

The definition of low impact exploration has subsequently broadened the range of activities which fall under the definition, in order to concentrate on environmental risks and impacts which include -

• the use of explosives;
• the damaging of flora under the Flora and Fauna Guarantee Act 1988;
• the removal of native vegetation or damaging of native trees; and
• ground intrusive work which includes the use of heavy equipment.

101 As to how the definition applied to the evidence, Barfuss in its written submissions before trial relied on the evidence of Dr Tunks, contending that '[h]is opinion is the best and only evidence the Court has before it about the nature of diamond core drilling and earth sampling, and how it fits within the statutory definition of "low impact exploration"'.[149] Barfuss submitted that Dr Tunks' evidence as to the topography of the land and whether any drilling locations were on a slope steeper than 1 vertical : 3 horizontal (within the meaning of item (1)(k)(ii) of the definition under Schedule 4A of the Act) should be preferred to that of Ms King, as Ms King had not explained how she reached her views.

102 There were not extensive submissions directed to the issue of whether the drilling and sampling program would involve other categories excluded from 'low impact exploration'. Barfuss submitted that the categories in item (1)(k)(ii) (relating to work on slopes greater than 1:3 gradient) and 'hardstand areas' in item (1)(i) were of 'most relevance' in the proceeding.[150] Barfuss submitted that it did not intend to create hardstand areas as the intention was to use boards to support the drill rig. If the evidence of Dr Tunks as to preparation of drill pads was accepted and it was found hardstand areas were required, Barfuss would seek consent which would meet the requirement in item (1)(i).[151]

103 The defendants' primary submission was that, regardless of whether the proposed activities were 'low impact exploration', it was work which was required to comply with the requirements of s 42(1), including the compensation or consent requirements of s 42(1)(h).[152] However, the defendants also made submissions as to whether the activities were low impact exploration work. They submitted that Dr Tunks' opinions as to whether the work was low impact exploration were inadmissible, or ought be afforded no weight, because:

(a) Dr Tunks did not have experience in preparing work plans within the Victorian legislative framework, or with Victorian Regulators; and

(b) his evidence as to the steepness of slopes, although supported by a rational methodology that was explained in his oral evidence, remained limited given that he had not been on the Property, and photographs of the topography suggested that there may be specific parts which are unsuitable for drilling not identified by Dr Tunks.[153]

104 The defendants submitted that Dr Tunks' evidence as to the steepness of slopes was of limited weight because 'Dr Tunks is a geologist, not a licensed surveyor and he has never physically inspected the Property'.[154]

105 On the issue of whether the work involved the creation of a 'hardstand area' or use of a 'closed road', the defendants' evidence was that the drilling program would involve the creation of flat areas for the drilling equipment. As there were no flat surfaces on the Property, Barfuss would have to flatten the surface of the land which would 'make the diamond core drilling process greater than low impact exploration'. Counsel for the defendants submitted that the evidence was insufficient to establish that there would not be any hardstand areas created.[155]

106 The defendants submitted more generally that the proposed drilling and sampling work was unlikely to be 'low impact' in terms of its effects on the defendants and their sheep farming operations.[156]

Conclusion - the drilling and sampling program involves work that is not low impact exploration

... under the terms of the Licence and section 40 of the Mineral Resources (Sustainable Development) Act 1990 ('the Act'), the diamond core drilling and mineral sampling work that Barfuss seeks to do at the Property in order to prepare the work plan is 'low impact exploration work' within the meaning of the Act and is permitted without the need for a work plan.

108 To make such a declaration I would need to be satisfied that the evidence supports the factual conclusions that the diamond core drilling and mineral sampling work that Barfuss seeks to do at the Property are: (i) in order to prepare the work plan; and (ii) 'low impact exploration'. Barfuss contended that the evidence supported those conclusions. The defendants, although not submitting that the evidence established that the work was not low impact exploration, submitted that the evidence was inadequate to establish that it was.[157]

109 The evidence, in my view, establishes on the balance of probabilities that the proposed diamond core drilling program and mineral sampling, as described in the report of Dr Tunks and the evidence of Ricardo Barfuss, will involve work which is not 'low impact exploration' as defined in Schedule 4A of the Act.

110 There are two aspects of the proposed work which I find do not fall within the definition of low impact exploration:

(a) the creation of hardstand areas for the operation of the drill rig (item 1(i) of the definition); and

(b) the use of the closed roads, without the consent of the defendants who are the owners and occupiers of the Property (item 1(j) of the definition).

111 Further, the evidence does not establish that all of the proposed drill sites (taking into account that seven are removed from the proposed drilling programme on the basis of Dr Tunks' evidence) are on slopes less than 1 vertical : 3 horizontal (item 1(k)(ii) of the definition).

112 My reasons for each of these findings are as follows.

The drilling programme involves the creation of hard stand areas

113 Paragraph (1)(i) of the definition of the activities excluded from the scope of low impact exploration in Schedule 4A of the Act is as follows:

(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...

114 A 'hardstand area' is defined in Schedule 4A as meaning 'an open ground area with a prepared surface that is used for storing material and standing vehicles'.

115 The position of the defendants is that they do not consent to the drilling program,[158] so the issue to be resolved is simply whether the drilling program will involve the creation of any 'hardstand area' as defined. The evidence on what the elements of the drilling program entailed was primarily that of Dr Tunks, which I have accepted as reliable, being informed as it was by his extensive experience.

116 Dr Tunks gave evidence that he had been advised of the kind of drill rig which would be used by Barfuss, a Boart Longyear DB520. He explained the process required to set up the drill rig for each proposed drill hole, which involved the preparation of a small pad which is 'a small horizontal cleared area to allow safe access to the rig and the water system'.[159] This would be done by bringing in an excavator to 'scrape off a bit of top soil, or block ... and make a small flat pad that is just bigger than the drill rig itself.'[160] The size of the pad would be approximately 10 metres by 4 metres.[161]

117 Dr Tunks said he had used a Boart Longyear rig before and said that it was 'ideal as it is very small in size', so only required a 'small pad'. He did not suggest in his report or in his oral evidence that a pad would need to be prepared only for some sites on the Property. His oral evidence was to the contrary effect, in that he observed that 'typically you want the drill site to be flat' and that the drill pad, including an area in excess of the drill, was:

... for safety, so that the driller and the offsiders can move around the rig to adjust ... to work on the motor, to work on the rods which in this case are enclosed in a steel cage, to withdraw the core to move into the ... mobile sump. So there needs to be a small pad prepared for that. You would typically stop the soil, anything you remove be on the side, and as soon as the drilling was over you would replace all that and redeck it.[162]

118 Mr Barfuss gave evidence that Barfuss would 'lay wooden planks on the surface upon which the drill rig will operate', which 'prevents the need to prepare any hard surface such as concrete or gravel upon which the drill rig will sit whilst in operation'.[163] However he also gave evidence that a Caterpillar two tonne excavator would be used 'to move any boulders that may be in the way of proposed drill hole locations, and/or to level terrain in areas where necessary'.

119 To the extent that there was an inconsistency between Mr Barfuss' evidence to the effect that no surface preparation would be required in some cases as the drill rig could sit on boards, I prefer the evidence of Dr Tunks which was to the effect that levelling of the earth on the drill site was typically required in every case, including for safety reasons. I accept that the drilling program would likely require the preparation of a drill pad of up to 4m by 10m for each drill site.

120 The clearing and potentially excavation of the land to create the flat surface for a drill pad will, in my view, involve the creation of 'an open ground area with a prepared surface that is used for ... standing vehicles', being the drill rig. This constitutes the creation of a hardstand area as defined in the Act, and as included in the activities in item (1)(i) in Schedule 4A which are excluded from the definition of low impact exploration.

121 It is not an answer to this conclusion to submit, as Barfuss did, that it could simply seek the consent of the defendants to create the hardstand areas.[164] The effect of the evidence is clear. The defendants do not consent to the drilling program, including to the extent that it involves the clearing of land for drilling sites and the need for rehabilitation, at least until there is a compensation agreement made and a rehabilitation plan in place. There was no evidence that Barfuss was willing to enter a compensation agreement with respect to the drilling program. Its position was to the contrary, that it had a right to conduct the program without doing so. To conclude that the drilling programme constitutes low impact exploration notwithstanding that it involves the creation of up to 50 hardstand areas because consent would be sought in the future is contrary to the statutory definition of low impact exploration. To conclude that consent would be given in future would be contrary to the weight of the evidence.

The drilling and sampling programme will involve the use of closed roads

122 Paragraph (j) of the activity excluded from low impact exploration in Schedule 4A is relevantly as follows:

(j) the use of any closed road without the consent of the owner or occupier of the land on which the road is located ...

123 Again, as the defendants do not consent to entry onto the Property for the purpose of executing the drilling program,[165] the question is whether there would be any use of 'any closed road'.

124 'Closed road' is defined in the Act as meaning, in relevant part, ' a road lawfully closed to public access by barriers'. 'Road' is defined as bearing the meaning in the Road Management Act, which is an inclusive definition, and specifically includes 'public highways'. Neither the definition of 'closed road' in the Act, nor the definition of 'road' in the Road Management Act exclude roads on private lands from the definition. The inclusive nature of the definition of road in the Road Management Act means that a road may be something other than the three examples in the definition.[166] The fact that a 'closed road' is a road lawfully closed to the public would appear naturally to encompass roads on private land. A road on private land may, therefore, fall within the definition of a closed road in the Act if it is on land closed to public access by barriers such as a fence and locked gate.

125 In circumstances where 'road' is inclusively defined and does not stipulate further the degree to which it must be sealed or defined, a question arises as to whether a particular route will constitute a 'road'. The evidence did not address this in any detail. However, there is a plan or map attached to the mining Licence over the land including the Property. That document includes what are described as 'road and road reserves' which extend into the private land. There are several features marked as roads on the Property.[167] It was also acknowledged in submissions for Barfuss that an image in evidence showed a road on the Property.[168] The evidence was also that there is a gate at the road at the entrance to the Property which is routinely locked,[169] and an access gate to the 'airstrip' or paddock area at the top of the mountain on the Property.[170]

126 I find, therefore, that there are roads on the Property which are lawfully closed to public access, including at least the road from the entrance of the Property at the locked gate which leads into the Property. There are, therefore, 'closed roads' on the Property, within the meaning of the Act.

127 As to whether the drilling program would involve 'the use of any closed road', it is clear from the evidence that it would. Ricardo Barfuss' evidence was that the drilling program would require several vehicles on the Property, including a Caterpillar 302CR two tonne excavator, the drill rig, and a Land Cruiser four wheel drive or utility vehicle which will tow a trailer with a water tank.[171] He gave evidence that:

The drill rig will be transported to the licence area and Property by truck. However, once on the Property, the drill rig moves on rubber tracks and does not require roads to be constructed for it to drive on. The associated machinery and vehicles that will also be present on the Property during diamond core drilling will be a Land Cruiser four-wheel drive or utility vehicle, which will tow a trailer with a water tank, and a Caterpillar 302CR two-tonneexcavator.

128 Dr Tunks also gave evidence that the Boart Longyear drill rig has rubber tracks and could be used off road. It remains, however, that the Land Cruiser and, more importantly, the Caterpillar two tonne excavator, would use the roads on the Property. This is not insignificant, given the significant weight of the excavator and the evidence that the Caterpillar has metal tracks. I also find, with respect to the sampling aspect of the proposed programme, that the Land Cruiser at least would use the closed roads. The use of the closed roads by these vehicles without consent of the owners of the Property would, in my view, fall within the activity excluded from the definition of low impact exploration in item (1)(j) of Schedule 4A.

129 For completeness it is appropriate to acknowledge Barfuss' position, based on the advice of Mr Dell of the ERR, that its activities would constitute low impact exploration if it complied with the Code of Practice for Mineral Exploration. However, it is plain that the Code is consistent with the Act in requiring owner or occupier consent for use of closed roads. The Code states, with respect to the reference to 'closed roads' in the definition of low impact exploration:

WORK ON CLOSED OR EXISTING ROADS

The use of closed roads* or undertaking work on existing roads* will require the consent of the owner or occupier of the land. The licensee will be responsible for determining the owner or occupier of the land by searching the VicRoads Register of Public Roads or the relevant local Council's Register of Public Roads. The licensee is also responsible for documenting the consent of the owner or occupier of the land prior to undertaking any work under the definition of low impact exploration.[172]

The drilling program may involve drilling on slopes of a greater than 1:3 gradient in addition to those identified by Dr Tunks

130 The findings that the drilling and sampling programme will involve creation of hardstand areas and use of closed roads without consent constitute a sufficient basis to determine that the programme involves work that is not low impact exploration. Given that those activities are integral to the overall programme, it is not possible to make the declaration sought by Barfuss that the programme constitutes low impact exploration. It is for that reason, not strictly necessary to address the most contentious factual issue as between the parties relating to whether, in addition to the seven drill sites identified by Dr Tunks as likely located on a slope of greater than 1:3 gradient,[173] and there were other sites on the proposed drill plan that would be on such a slope. However, in the event that it may assist the parties to understand their respective positions I will state my findings on the issue.

131 The evidence did not establish on the balance of probabilities that there were specific additional drilling sites proposed on a slope of a gradient exceeding 1:3. However, I also find that the evidence did not establish that all of the drill sites would be on locations that were not of such a gradient. It was not, therefore, possible to conclude on the balance of probabilities that all of the proposed drilling locations would occur on slopes 1:3 gradient or less. There may therefore remain some which are excluded from the definition of low impact exploration.

132 The evidence was that Barfuss had prepared a 'drill collar plan' identifying the drilling sites it proposed in the diamond core drilling programme. Dr Tunks had identified some of these sites as located within 200m of the Riley Creek waterway and others on slopes greater than a 1:3 gradient. Ricardo Barfuss gave evidence that in light of Dr Tunks' conclusions, Barfuss would not drill on those sites.[174] There remained an area of dispute between the parties, and uncertainty on the evidence, whether other drill sites on the drill collar plan would fall in areas on a slope exceeding 1:3 gradient, or within 200m of a waterway, both which would involve activity excluded from low impact exploration by item 1(k) of the definition.

133 The evidence did not enable a clear conclusion on whether there were further sites of this character. Dr Tunks carefully explained how he arrived at his conclusions as to the topography of the Property, and acknowledged that there was a small amount of uncertainty involved in his conclusions arising from the limitations on the information provided to him. [175] He acknowledged that he had not visited the Property and that it was possible that the topography map did not exclude the possibility that 'there would be places where the hill could be slightly steeper and then flatten out again', involving small areas of greater than 1:3 rise over run. His evidence was that in those cases 'you simply would ignore those ... and you would move them slightly'.[176]

134 Ms King's evidence was that there were other proposed drilling locations which were on slopes of greater than a 1:3 gradient. This evidence was based on her own observations informed by what she described as research into how to measure gradients, which was not further explained in the evidence.

135 I accept Dr Tunks' evidence generally as to the identification of the gradient on various parts of the Property from the contour map, in the process that he described in his evidence. However, he acknowledged the possibility that there could be other drill locations that may fall on slopes exceeding the 1:3 gradient. Ms King's evidence based on experience of the Property and description of areas as dangerously steep slopes is consistent with a conclusion that there may be additional sites of that kind. I accept Dr Tunks' evidence that the solution would be to move the sites to a location not involving that degree of slope. However there was no further evidence of how the gradient of the land would be assessed, whether it would be feasible in all cases to move the drill sites, or what it would mean for the overall program to move drill locations.

136 In these circumstances, I cannot conclude that the remaining approximately 50 drill sites in the proposed drilling programme would constitute low impact exploration. This is a factor that I accept could likely be addressed in a revised plan. It is, therefore, a secondary matter which is consistent with my conclusions that the drilling programme will involve creation of hardstand areas and use of closed roads without consent, and will not constitute low impact exploration.

Is the diamond core drilling and mineral sampling program necessary for the preparation of a mining work plan?

137 An additional substantive element of the declaration sought by Barfuss was that the proposed drilling and sampling plan was required for the preparation of a work plan. It may not strictly be necessary to determine whether that is the case, but as the parties have addressed the issue, I will explain my conclusions on that issue in the event.

138 Barfuss primarily relied on the contention that the activities involved in the drilling programme constituted low impact exploration and so did not require a work plan. However Barfuss' evidence, particularly the report of Dr Tunks, also took the position that the drilling programme was necessary to obtain information required for the mining work plan which Barfuss was required under condition 2 of the Licence to submit by 31 December 2025. Barfuss also continued to submit that it had insufficient information to prepare a work plan absent the diamond core drilling programme.[177]

139 The defendants, although emphasising that the real issue is whether the proposed activity is required to comply with the requirements of s 42(1), acknowledge that the question of whether information from the proposed drilling programme is necessary to complete the work plan was still maintained by Barfuss and should be determined.[178] They submitted that:

(a) The evidence showed that Barfuss had a significant amount of information already from which a work plan could be prepared, including surveying or scoping which had enabled the preparation of the drilling plan the first iteration of which was available in 2020.[179]

(b) The requirement as to geological information in the work plan as described in regulation 42(c) is a 'general description' only and does not require the kind of detailed information that Barfuss seeks to obtain from the drilling program. The Work Plan Guideline addresses the requirements of regulation 42(c) but does not contain anything that suggests anything more than a general description is required.[180] There may have been more information in the application for the mining Licence, however that was not put in evidence by Barfuss.[181]

(c) Barfuss already had some information about the geological issues including mineral reserves, as it had provided an estimate of the gold ore that could be mined to the ERR in its initial work plan proposal being an estimate of 3,000 tonnes per year, and when the ERR responded advising that further detail was required, it did not identify the geological information as being inadequate information.[182]

(d) To the extent that it was relevant to have regard to the statements of Mr Dell of the ERR, it was relevant to note that he said that low impact exploration work could be done under the Licence but would require compliance with the Code of Conduct for Mineral Exploration, which states that the consent of the owner of private land is required.[183]

(e) Dr Tunks, although very experienced in mining exploration, conflated requirements of condition 2 of the Licence as to work plans and condition 3 as to updated mineral resource estimates. His references to and reliance on the JORC was relevant only to condition 3 and not to the work plan requirement.[184] Although the results of the drilling campaign might be relevant to whether the mining is commercially sensible, it is not required for preparation of a work plan. The fact that Dr Tunks was considering both the work plan requirement and the requirement for an updated mineral estimate meant that his evidence as to what was required was of limited utility to determine the question of what must be contained in a work plan.[185]

The mining work plan required by s 40 of the Act and reg 42 of the Regulations does not require the performance of a diamond core drilling programme

140 The required content of a mining work plan is defined by s 40(3) and reg 42. Section 40(3), insofar as it refers to what must be contained in the work plan, refers primarily to matters relating to '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 what the licensee will do to minimise those risks (s 40(3)(b) and (c)), to community consultation (s 40(3)(d)) and to rehabilitation (s 40(3)(e)).

141 Regulation 42 refers to a broader range of information required in the work plan as relevant to the proposed 'mining work to be carried out under the licence', including description and mapping of the sensitive receptors in the vicinity of the work and local features in the vicinity of the work (reg 42(a), (b), (d), (e) and (f)).

142 With respect to geological information, reg 42 states that the work plan must contain the following:

(c) a general description of geological information pertaining to the work, including -

(i) stratigraphy; and

(ii) any adverse geological structures; and

(iii) the minerals to be extracted; and

(iv) the estimated mineral resources and ore reserves; and

143 The text, context and purpose of the legislative scheme, in my view, favours the conclusion that the information to be provided in a work plan does not require information to be obtained from an extensive underground drilling project.

144 First, starting from the language of regulation 42, it is clear from the opening words of reg 42(c) that the categories of geological information which follow are all to be the subject of a 'general description' only. There is no suggestion that the estimate is to be of such detail or accuracy that it would require extensive sampling by drilling to metres below ground, across the relevant land.

145 In circumstances where the licensee has a mining licence rather than an exploration licence, it could be expected that it is already in possession of some information about the minerals on the land sufficient to make such an estimate. If the licensee does not have any information sufficient to provide an estimate it is open (as discussed further below) and potentially more appropriate in the scheme of the Act, to apply for an exploration licence.

146 Secondly, looking to the context and purpose of the Act and Regulations, it is apparent that the focus of the s 40 and reg 42 provisions on work plans is on management of risk to the environment, the public and land, property and infrastructure in the vicinity of the work. It requires information describing the local environment and sensitive receptors, and rehabilitation planning. In these circumstances it is unlikely that an extensive programme of drilling would be required simply to prepare a work plan and equally, unlikely that an extensive drilling programme (here, involving approximately 50 sites and estimated to take a period of up to 9 months) would be intended to be done without any work plan addressing the various risks. It would be contrary to the concern of the Act with risk management and with (as disclosed by the Explanatory Memorandum to the amending Act which introduced Schedule 4A)[186] environmental impacts, if the preparation of a work plan required a drilling programme involving drilling rigs, excavators and months of drilling.

147 A further contextual consideration is that exploration work under exploration licences and mining licences under the Act is subject to independent requirements for work plans. Section 40 applies to all work under licences of all kinds (subject only to the exceptions in s 40(2)). Regulation 40 provides that the information required in a work plan for exploration work is the information in reg 41. Regulation 41 sets out the information required in a work plan for exploration work, as follows:

Information required in work plans - exploration work and related rehabilitation

For the purposes of regulation 40(a), the specified information is -

(a) a description of the exploration work to be carried out under the licence which includes-

(i) a map showing the general location of drilling or other exploration works; and

(ii) a description sensitive receptors in relation to the environment, any member of the public, or land, property or infrastructure in the vicinity of the work; and

(iii) the location of the sensitive receptors; and

(b) details of the proposed rehabilitation of areas disturbed as a result of exploration work under the licence, including -

(ii) if plant and equipment has been introduced to the area, proposals for the removal of plant and equipment.

148 The work plan requirements for exploration work may in fact be more relevant to the proposed drilling programme under the Licence, which does authorise exploration work.[187] The work plan requirements for exploration work continue, however, to show the same concern for sensitive receptors in the vicinity of the work, and planning for the rehabilitation of areas disturbed by the work. Whether a more limited work plan for exploration work and complying with reg 41 is sufficient, or it is simply regarded as part of the context in which to understand the requirements of s 40 and reg 42(c), it is plain that the Act regards exploration work as a kind of work which requires the submission of a work plan.

149 Finally, the objectives of the Act confirm the view that the preparation of a work plan would not require the conduct of an extensive drilling programme to ascertain detailed geological information to include in the plan, and, conversely, that a work plan would be required before conducting a drilling programme. The purpose of the Act is to encourage mineral exploration and economically viable mining in a way which is compatible with the economic, social and environmental objectives. It would not be consistent with that purpose if work plans themselves, required prior to any work under licences, involved an extensive programme of work on the land over many months. That would also be inconsistent with the objective of the Act for providing an efficient and effective system for the granting of licences. Most relevantly, the objective of the Act in establishing a legal framework aimed at ensuring that risks to the environment, the public, and land or property from work done under a licence 'are identified and eliminated or minimised as far as reasonably practicable'[188] reinforces the understanding of s 40 and the relevant regulations that work plans are intended to manage risk by identifying them before any significant work is done so as to eliminate or minimise the risks.

The Work Plan Guidelines and Licence as relevant to what is required in a work plan

150 It is not open to have regard to the Work Plan Guidelines as a guide to the construction and meaning of the statutory and regulatory requirements - the opinion of a statutory agency does not provide a proper basis for construing the primary and subordinate legislation that it administers.[189] However, it does provide an indication of what sort of information the regulator is likely to regard as sufficient to satisfy those statutory and regulatory requirements when exercising the power to approve the work plan, require changes to it, or refuse to approve it.[190] It is relevant to consider the Work Plan Guideline in that context.

151 The Work Plan Guideline focuses primarily on matters of risk identification and risk management, community consultation and rehabilitation.[191] In the body of the Guideline where there is some detailed information addressing those matters, there is no reference to the requirements of reg 42, or otherwise to geological information. Appendix B of the Work Plan Guideline provides guidance on the information required by reg 42. With respect to the requirements of reg 42(c) as to geological information, it states as follows:

• Describe the geology, geological structure (faults, fractures etc.)
• Describe the current and past land uses which may impact the proposed design (such as contaminated land, old tailings, underground voids)
• Specify the resource type, e.g. gold
• An estimate of total reserves within the licence boundary

152 There is no further detail of what the estimate of reserves must contain, which stands in contrast to the quite detailed elaboration of what some other elements of reg 42 require.[192] There is nothing in the Work Plan Guideline which would suggest that it needs to be anything more than a general description (as stipulated by reg 42(c)) and a general estimate. Put another way, it appears likely that the Department Head, in exercising the powers with respect to a work plan in s 40A, would be satisfied by a fairly general estimate of total reserves.

153 Finally, the terms of the Licence granted to Barfuss also support the view that the work plan is not intended to require geological information of a very detailed nature. Condition 2 of the Licence, when granted, required that the work plan be submitted within 12 months of the grant of the licence. It appears unlikely that the regulator expected that a lengthy drilling campaign would be required to prepare that work plan. More importantly, condition 3 provides a significantly longer time ('prior to the fifth anniversary of the licence') for the submission of the 'updated mineral resource'. That condition involves the specific requirement for the 'material in all measured, indicated and inferred categories using the Joint Order Reserves Committee (JORC) Code standards and terminology, and the associated JORC table(s)'. The structure of the conditions makes clear that the mining work plan will precede the submission of the detail mineral resource assessment.

154 These considerations support the conclusion that the requirements of s 40 and the Regulations do not require a work plan to contain detailed geological information of the nature which would be provided by the execution of the extensive diamond core drilling programme that Barfuss proposes.

155 Dr Tunks' evidence did not establish anything to the contrary to the above conclusion. Dr Tunks was highly qualified and very experienced in mining exploration, including gold mining. He gave clear and measured evidence on what was involved in a diamond core drilling program. However his evidence as to what was required for a mining work plan was affected by a lack of clarity as to the basis of his understanding as to why a mining 'work plan' under the Act would require a significant diamond core drilling program. Having regard to the totality of his evidence it was apparent that his opinions as to what is required to be included in a work plan did not address the requirement of the Act or Regulations as to work plans, but reflected his understanding of what was required for a viable mining operation which was economically justified, compliant with established reporting standards, and with condition 3 of the Licence relating to the mineral resource and reserve estimate.

156 As Dr Tunks had not had any experience in mining in Victoria or in the regulatory scheme under the Act and Regulations, it is doubtful that his evidence on what is required by a 'work plan' under s 40 of the Act was admissible. As it was addressed in submissions by the defendants I will express my views on it.

157 It was submitted for the defendants that his references to conditions 2 and 3 of the mining licence, and the content of the JORC 2012 Code in his evidence made it apparent that his opinion did not address a 'work plan' in the sense in which it was used in the Act, but appeared to be informed by the reporting requirements of the JORC Code.[193]

158 I accept that this was the case. Dr Tunks in his Report stated his opinion that the requirement of the 'general description of geological information pertaining to the work' relating to the 'minerals to be extracted' and 'the estimated mineral resources and ore reserves' in reg 42(c)(iii) and (iv) required data 'that can only be gleaned from Diamond Drilling'.[194] He stated the following in support of the opinion that the diamond core drilling program was required to obtain that information:

Mineral Resources are the quantified tonnage of the geological deposit and grade of the target mineral that justify the development of a mine on an economic basis. The only way to ascertain this information is to drill the deposit (diamond drilling is preferred) and sample the prospective areas. ...

Ore Reserves refers to an upgrading of a high-confidence Mineral Resources by the application of modifying factors - These modifying factors include a detailed mine plan and an economic analysis.

Ultimately a Mineral Resource and Reserve Estimate completed under the standards of the JORC Code and signed off on by a Competent person or persons (as defined under the code) is a crucial step in the advance to mining for any project.[195]

159 As noted above at [43] Dr Tunks' Report described the JORC Code as being the professional code of practice setting minimum standards for public reporting of minerals explorat[196] results.196 In cross examination, Dr Tunks agreed that the JORC Code, insofar as it was used for public reporting, was for the purpose of informing investors or potential investors and their advisors about particular mini[197]projects.197

160 Ricardo Barfuss had also construed the geological information required by reg 42(c) as requiring diamond core drilling exploration in reliance on the JORC Code. He referred to the drilling programme as being required for 'compliance with the third condition of the Licence'.[198]

161 Given the specific purpose of the JORC Code in informing public reporting of mineral exploration results, it does not follow that compliance with that Code is required to inform the contents of a work plan under the Act. The work plan, as discussed above, is not focussed on economic viability of proposed mining activities (although that may be relevant) but is directed more to issues of managing risks to the environment, to the public and to infrastructure.

162 The opinions of Dr Tunks and Ricardo Barfuss that a mining work plan as required by s 40 of the Act was required to contain a mineral resource and reserve estimate which complies with the JORC Code do not have any support in the terms of the Act or the Regulations. The Act and Regulations do not refer to the JORC Code, and insofar as reg 42(c)(iv) refers to 'the estimated mineral resources and ore reserves' it does not, in context, suggest that the specificity of that estimate is intended to be such as to provide information for investors or for the public more generally. It is information to be considered by the Department Head[199] in determining whether to approve the work plan.

163 The Work Plan Guideline, which addresses the specific requirements of the work plan by reference to the Act and Regulations, also does not refer to the JORC Code.[200]

Is the proposed drilling and mineral sampling 'work' which is subject to the requirements of s 42(1) of the Act?

164 Section 42(1) of the Act provides for certain matters that must be complied with before carrying out 'work' on the land covered by the licence. While there are a range of requirements, the specific aspects of that section which are currently relevant are as follows:

(1) The holder of a mining licence or prospecting 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.

165 The declaratory relief sought by Barfuss does not directly engage the question of whether the proposed drilling and sampling programme is subject to the requirements of s 42(1). However the defendants contend that this is the central issue raised by the dispute between the parties, and that Barfuss is required to comply with those requirements before undertaking any of the proposed work. The defendants contend that, in particular, the compensation or consent requirements of s 42(1)(h) apply to the drilling and sampling program even if it is low impact exploration. Barfuss contends that s 42(1)(h) does not apply to low impact exploration.

166 Barfuss did not contend that s 42(1) does not apply to activity if it is not low impact exploration. If I am correct in my conclusions above that the activities proposed by Barfuss do not constitute low impact exploration, it would appear to be common ground that Barfuss would have to comply with the requirements of s 42(1). However, it is appropriate to address the submissions of the parties on this issue in the event that I am wrong. It is also clearly relevant to determine this issue in the context of the injunctive relief sought, and because it is a material issue in the broader dispute between the parties.

167 Barfuss submits that the Act does not require that consent or a compensation agreement or determination be in place as required by s 42(1)(h) before low impact exploration is carried out for four reasons.

168 First, it is observed that not all activity on land covered by a mining licence requires compliance with s 42(1). Section 14 permits the holder of a licence to carry out mining and other activities on the land, subject to s 42(1), which applies where the licensee wants to carry out any 'work' on the land. As a 'work plan' is required by s 42(1)(a) before any 'work' can be carried out, logically some actions must be able to be taken to prepare the work plan and such actions would not constitute 'work' within the meaning of s 42(1).[201]

169 Secondly, it is said that the requirements of a work plan indicate that activity on the land may be necessary, given the requirements of the mining licence in reg 42(1)(c) for geological information and (e) requiring a site map. These are said to require more than a visual assessment of the surface of the land.[202]

170 Third, the Act is said to 'set up a distinction between mining work under the licence, and low impact or preparatory activities, which do not attract the same requirements'.[203] Barfuss submits that the following considerations support the conclusion that 'low impact exploration' is not 'work' to which s 42(1) applies:

(a) s 40(2) provides that the requirement for a work plan does not apply to 'low impact exploration work', and the Schedule 4A definition is of 'low impact exploration' rather than 'low impact exploration work', which suggests a distinction between the two concepts; and

(b) the definition of 'exploration' in s 4 also informs the interpretation of Schedule 4A, and does not include any reference to 'work'.

171 Fourth, it is submitted that a number of the s 42(1) requirements 'do not readily apply to the kind of activities that would be involved in low impact exploration prior to the preparation and lodgement of a work plan', for example:

(a) s 42(1)(b) requires the licensee to have entered into a rehabilitation bond in accordance with s 80.[204] It would be impracticable to follow these steps in the absence of a work plan; and

(b) s 42(h)(iii) refers to the determination of compensation under Part 8 of the Act, and s 85(1) provides that compensation is payable for loss or damage that 'has been or will be sustained as a direct, natural and reasonable consequence of the approval of the work plan or the doing of work under the licence'. It is submitted that those words are 'consistent with the notion that the statutory entitlement to compensation arises when a work plan is approved or 'work' is done under the licence'.[205] Ricardo Barfuss also gave evidence that it was only after the work plan was prepared that any compensation could be assessed.[206]

172 The defendants submit that the unqualified phrase 'any work' in the chapeau to s 42(1) 'must mean all work contemplated by the Act under a mining or prospecting licence'. Although 'work' is undefined, it is said that the ordinary English meaning of the word 'work',[207] the proposed drilling and sampling constitutes work. Acknowledging that it is a secondary guide only to construction, the defendants refer to the Work Plan Guideline which defines 'work', for the purposes of the Guideline, very broadly as:

Any activity that is connected to or is incidental to the mine activities permitted under the approved Mining Licence and work plan.

173 The defendants do point to the use of 'work' in s 45 of the Act which prohibits any work within 100 metres of a dwelling house without consent of the owner. Subsection 45(7) defines 'work' in that context as including, relevantly:

(b) any excavation for the purposes of exploration using mechanised equipment...

174 It is said that '[t]he absence of any similar delimiting descriptor in the phrase 'any work' in s 42(1) is a strong indication that Parliament intended all work under a mining licence, which includes exploration work, to be subject of the requirements therein (save for the possible work plan exemption in s 40)'.[208]

175 The defendants note that the drilling and sampling work falls within the definition of 'exploration' in the Act,[209] which is, like mining work, subject to the s 42(1) requirements.

176 With respect to reconciling the various requirements of s 42(1), including the requirement of a work plan in s 42(1)(a), with the exemption of low impact exploration from the requirements of a work plan in s 40(2), the defendants emphasise the cumulative nature of the requirements in s 42(1). They submit that even if 'low impact exploration work' is exempt from the requirement of a work plan by reason of s 40(2), the other requirements of s 42(1) remain applicable, in particular the compensation or consent requirements of s 42(1)(h). They finally submit that it is relevant that this interpretation, of the requirements for consent or compensation for private owners applying even to low impact exploration, is consistent with the position by the ERR in correspondence.[210]

177 The defendants submit that there is no practical impediment to ascertaining compensation which may be payable to the landowner prior to the work being conducted. Specifically, s 85(3) provides that compensation is not payable for the value of any mineral in or under the surface of the land covered by the licence, so there is no need to ascertain mineral reserves before the question of compensation is addressed.[211]

Conclusion - s 42(1) applies to all 'work' including low impact exploration work

178 The question of the meaning of 'work' in the context of s 42 is not straightforward. 'Work' is not a defined term, and it is necessary to consider the context in which the word is used to ascertain its intended meaning. While there are some indicators in the text of the Act which assist in ascertaining the meaning of the word, to which I will come, it is not possible to state a specific and definitive meaning of that term.

179 In my reasons on the grant of the initial interim injunction in this matter, I expressed the view that the term 'work' does not encompass all and any activity on the land covered by a licence, specifically 'the inspections and actions as may be necessary in order to prepare a work plan'.[212] This was on the basis that, as s 40 requires a work plan before 'work' can lawfully be carried out, but also requires certain types of information that may at least require familiarity with the relevant land, there may be activity involved in the preparation of that work plan which does not constitute 'work' within the meaning of the Act.[213] I also considered whether 'low impact exploration' would constitute 'work' for the purposes of s 42(1) and expressed a tentative view that some low impact exploration would not constitute 'work' and would not be subject to s 42(1), but noted that it would be necessary to resolve the question on full argument at the final hearing.[214]

180 The nature of the activity that Barfuss currently proposes to undertake has been identified with some specificity at this final hearing, and the issue to be resolved is whether the proposed diamond core drilling and mineral sampling programme would involve 'work' within the meaning of the Act. That is the focus of my consideration below given the difficulty of attempting to identify any exhaustive or definitive meaning of the word in the Act.

The contextual indicators in the Act as to the meaning of 'work'

181 Section 42(1) is in Part 3 of the Act, titled 'Work under a licence'. Section 39(1) provides that a person 'must not do any work under a licence' otherwise than in accordance with the licence or in accordance with an approved work plan, or as authorised by a minerals exemption. Section 39(5) provides that work must not be done under the licence unless the licensee is insured under a policy of public liability insurance for an amount determined by the Department Head. It is an offence to contravene that section. The regulations provide, in Schedule 14, that a specific infringement offence under s 39(1) would be constituted by 'a contravention of the licence or the approved work plan by doing work that removes native vegetation other than as authorised by the licence or work plan'.[215]

182 Section 40(1) requires a licensee who proposes to 'do work under the licence' to lodge a work plan with the Department Head. Section 40(2), in addition to providing that the work plan requirement does not apply to 'low impact exploration', provides in s 40(2)(b) that the requirement of a work plan does not apply where the mining licence covers an area of 5 hectares or less and 'does not involve underground operations, blasting, clearing of native vegetation or the use of chemical treatments'. This suggests that each of those activities are 'work'. If they were not 'work', it would not be necessary to exempt them from the s 40(1) requirement of a work plan for proposed 'work'.

183 The requirement of a rehabilitation plan in a work plan (s 40(3)(e)) supports the view that if activity involves an impact on land which would require rehabilitation, it is within the scope of activity intended under the Act to constitute 'work'. The same is suggested by the requirement of a rehabilitation bond before work commences, under s 42(1)(b). This suggests a quality of 'work' that has some lasting impact on the land which calls for rehabilitation.

184 Section 43(1) states that the holder of an exploration licence must not carry out work unless they have complied with various requirements set out in s 43(1)(a) to (ea). It states in s 43(1B) that certain of those requirements (emphasis added):

... do not apply to a licensee if the work being carried out involves exploring for minerals on land but does not involve -

(a) the use of equipment (other than non-mechanical tools) to excavate on the land; or

(b) the use of explosives on the land; or

(c) removing or damaging any tree or shrub on the land.

185 The activities referred to in pars (a) to (c) of s 43(1B) are work, because (as with s 40(2)(b)) there would be no need for an exemption if the activity did not constitute work to be carried out on the land within the scope of s 43(1). It is less clear whether excavation with non-mechanised tools, which is carved out of the exclusion in par (a), would constitute work, but the structure of this section is consistent with a conclusion that it is not work.

186 It is also relevant to consider the effect of s 45 which, by s 45(1) prohibits work under a licence within 100m of a dwelling house. Section 45(7) defines work as meaning any of a range of activities, set out in paragraphs (a) to (j) of the definition. The activities which are specifically identified in the definition as constituting 'work' include:

(b) any excavation for the purposes of exploration using mechanised equipment;

(c) any construction or use of any opening, excavation, structure or equipment for access to, or ventilation of, underground workings;

(i) any drilling (unless carried out with hand-held equipment);

187 The definition of 'work' for the purposes of s 45 expressly provides that it does not include:

(k) without using equipment (other than non-mechanical hand tools) to excavate on the land; and

(l) without using explosives on the land; and

(m) without removing or damaging any tree or shrub on the land.

188 Although this definition of 'work' is expressed to apply only for the purposes of s 45, it is unlikely that 'work' as used in the rest of the Act could bear a significantly different meaning, given that the Act regulates mining and exploration work on land generally, and s 45 is a specific element of that regulation applying areas of the land close to a dwelling house.

189 Section 45(7), the references to 'work' in s 40(2)(b) and s 43(1B), and the effect of the Regulations in affirming that 'work' for the purposes of s 39 includes certain 'work that removes native vegetation', indicate that:

(a) excavation and drilling using mechanised equipment constitute 'work';

(b) activity involving removal of or damage to native vegetation constitutes work; and

(c) excavation using non-mechanised equipment and drilling using hand held tools do not constitute 'work'.

190 It is difficult to arrive at any broader, more general understanding of what constitutes 'work' for the purposes of the Act, other than that the association between work that requires a work plan under s 40 and the requirement for a rehabilitation plan suggests that activity which involves some impact on the land significant enough to require rehabilitation is regarded as 'work'. It is not, in this case, necessary to express a definitive view on the scope of the definition, because in this case, it is quite clear that diamond core drilling with a mechanised drill rig does constitute 'work'. Excavating with a mechanised excavator to create drill pads for a drill rig will also constitute 'work'. Mineral sampling is a more difficult question. The evidence indicates that this may involve only excavation with hand held tools and possibly shovels.[216] The above consideration of the statutory scheme suggests that if that is the limit of what is involved, it may not constitute 'work' within the meaning of the Act. There was limited evidence on the scope or extent of the 'sampling' work proposed. As discussed below, this is a hurdle to the grant of any alternative more limited declaratory relief and makes it unnecessary to express any view on what sampling work would fall outside the scope of 'work'.

191 The understanding of the scope of 'work' as involving some but not all activity involved in exploration or mining is consistent with the way in which 'low impact exploration' is treated in the Act. The Act uses both the term 'low impact exploration' (s 43(1A), Schedule 4A) and 'low impact exploration work' (s 40(2)(a)).

192 Section 43(1), which prohibits the holder of an exploration licence to carry out work on the land covered by the licence unless certain conditions are met, is subject to s 43(1A), which excludes all 'low impact exploration' from the requirements of a work plan and a rehabilitation bond in s 43(1)(a) and (b). That can be contrasted with s 40(2) which excludes low impact exploration work from the requirement of a work plan but not from the requirement of a rehabilitation bond.

193 Section 7B provides a power for Ministers to declare an 'exploration activity' to be 'low impact exploration', as follows:

7B Ministers may declare low impact exploration activity

The Minister and the Minister administering the Conservation, Forests and Lands Act 1987 may from time to time, by notice published in the Government Gazette, jointly declare an exploration activity to be low impact exploration for the purposes of this Act.

194 These provisions confirm that 'low impact exploration' is distinct from, and broader than, 'low impact exploration work'. Exploration, and low impact exploration, may involve activity which is 'work', and other activity which is not.

195 In summary, s 42(1), but with the exception of s 42(1)(a), will apply to low impact exploration work to the extent that it constitutes 'work on the land' as stipulated by the opening words of s 42(1). Section 42(1)(a) would not require a work plan for 'low impact exploration work' because of the express provision in s 40(2). However, all other provisions of s 42(1), including the s 42(1)(h) requirements as to consent or compensation, apply to low impact exploration work.

196 As noted above, the first declaration sought, that Barfuss is the holder of the mineral Licence in respect of the Property, would not serve any purpose as there is no dispute that this is the case.

197 I have concluded that the programme of activity that Barfuss proposes to conduct insofar as it involves diamond core drilling is not 'low impact exploration', is not required to prepare a work plan, and is 'work' under the Act. It is therefore not open to make the second declaration sought.

198 It was submitted for Barfuss that it would nevertheless be open to make a declaration that the mineral sampling activity which Barfuss sought to do was not 'work' within the meaning of s 42(1) so that it could be done without the consent of the defendants.[217]

199 The evidence as to the work that Barfuss proposed to do was to the effect that there was a program of work of which diamond core drilling was an essential part. There was no evidence that surface mineral sampling alone would be of utility to Barfuss. There was also limited evidence of exactly what activity the 'sampling' would involve. No sampling plan was in evidence and none had been provided to Dr Tunks.[218] It was not clear how extensive the sampling would be, where it would take place, how deep the digging or excavation would be, or whether it would involve removal of or damage to any native vegetation. The surface sampling process referred to by Dr Tunks would appear to fall readily within the scope of low impact exploration, and would not constitute 'work'.[219] However, the Act leaves open the possibility that some excavation could constitute work, depending on what is involved. Non-mechanical excavation or drilling could constitute work if it involved removal of native vegetation, as also discussed above. The Act also provides indications that if excavation or drilling was significant enough to leave the land in a state which required rehabilitation, it should also be regarded as crossing the threshold into activity which constitutes 'work' that is subject to the requirements of a work plan including a rehabilitation plan.[220]

200 I do not think that it is necessary in this case to resolve the difficult issue of whether all sampling would fall outside the definition of 'work', and whether some more significant sampling activity would constitute 'work'. It would be necessary to have a clear understanding of exactly what is involved in the sampling activity to make any proper declaration. In circumstances where there was very limited and inconclusive evidence as to what Barfuss intends to do in a mineral sampling programme, and no evidence that there would be utility in conducting a sampling programme alone, without diamond core drilling, it is not appropriate to make any declaration as to the status of sampling under the Act or Barfuss' rights to undertake it.

Significant exploration activity in the context of the scheme of the Act

201 Given the difficulties experienced by Barfuss in ascertaining the scope of its obligations under the Act, and its lack of progress under the current Licence applied for in 2012 and granted in 2022, it may be appropriate to make some further observations in the event it may assist its further progress, including in interactions with the ERR as regulator.

202 The Act provides for both exploration licences and mining licences, which are focussed on exploration and mining respectively. A mining licence does entitle the holder also to explore for minerals.[221] However, the Act provides by s 15(6) that an applicant for a licence must generally satisfy the Minister that the applicant 'genuinely intends to do work' and has an appropriate program of work,[222] and that the applicant 'is likely to be able to finance the proposed work and rehabilitation of the land'. By s 15(6B), an applicant for a mining licence (other than an infrastructure mining licence) 'must satisfy the Minister that there is a reasonable prospect that the mining of the mineral resource described in the application will be economically viable'.

203 The statutory scheme taken overall therefore suggests an intention that a mining licence will be granted where the applicant has already established that some mining of the relevant mineral resource will be economically viable, and that the applicant is likely to be able to finance the proposed work and rehabilitation.

204 The primary activity authorised under a mining licence is to 'carry out mining on the land covered by the licence'.[223] The entitlement to explore for minerals, construct facilities and do 'anything else that is incidental to that mining' appear to be secondary to that primary activity of mining. In the present case, an extensive exploration programme is proposed by Barfuss. It is described as having the purpose of ascertaining whether mining on the Property would be economically viable or profitable,[224] and the outcome, as described by Dr Tunks and acknowledged by Ricardo Barfuss, may potentially be that there is no resource or reserve that is worth mining.[225]

205 If the first activity proposed is a significant exploration programme being conducted in order to ascertain whether there are in fact mineral deposits sufficient to justify mining activity (as I find was Barfuss' intention in this case), a question does arise whether the appropriate licence was an exploration licence rather than a mining licence. Alternatively, it may simply be that a licensee should focus on the work permitted under a mining licence in stages and first applying for a work plan for exploration work, satisfying the requirements of reg 41 rather than reg 42 (which Barfuss focussed on in this case) and addressing the requirements of s 42(1), including the compensation or consent requirements by reference to a first stage of discrete exploration work.

206 It appears that the ERR's understanding of how the statutory scheme is intended to operate is more aligned with the first of these alternatives, at least in recent times. No representative of the ERR or the Department appeared or sought to intervene, despite being aware of the proceeding, and the Deputy Secretary to the Department of Infrastructure, Transport, Regional Development, Communications and the Arts, having been served with the originating motion, pleadings and submissions in September 2024.[226] However, email correspondence from an officer of the ERR to the solicitors for Barfuss dated 27 May 2024, which was in Barfuss' evidence, stated:

The information gathered and provided as part of the license application should be sufficient to satisfy the geological information required in your work plan, so it is not typical for applicants to need to do this preparatory works. The intent of the legislation in grant[ing] a mining license is that you commence mining, so typically applicants apply for a work plan to commence work on the license rather than the other way round.

207 Further, Barfuss gave evidence that in August 2024, an officer of the ERR, Colin Dell, stated words to the effect that 'in order to obtain the Licence, Barfuss would have been required to provide extensive material about the nature of the deposits on the Property and therefore it is unlikely that a huge amount of additional work would be required for the purpose of the work plan, however he accepted that some further work may be required.'[227]

208 Barfuss did not tender evidence of what information had originally been provided with its application for the mining Licence. It is not clear in these circumstances whether the original mining licence application was supported by the sort of extensive geological information referred to by the ERR representatives, or whether the mining licence was granted notwithstanding the absence of such information.[228]

209 In the present case, no objection was taken by the defendants that the diamond core drilling programme proposed was not of a kind that was authorised by s 14 of the Act.[229] It is clear from s 14(1)(a) that some exploration for minerals may be conducted under a mining licence. It is unnecessary (and in the absence of evidence and submissions on the issue, it would be inappropriate) to determine the question of whether an exploration licence may have been the more appropriate licence for Barfuss' purposes of ascertaining whether there were sufficient mineral deposits to make mining feasible, economically and otherwise.

Should an injunction be granted to restrain the defendants from restricting access to the Property?

210 Barfuss sought, in addition to the declaratory relief considered above, an injunction in the following terms:

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.

211 Counsel for Barfuss submitted that even if the Court determined that Barfuss could not conduct the diamond core drilling programme without an approved work plan or compliance with s 42(1), an injunction should be granted to permit Barfuss to do other 'things that were not work' after deciding what work is.[230] Examples were given of activity such as digging with spades or flying drones.[231] However Barfuss did not formulate any alternative form of injunction other than that sought in the Amended Originating Motion of 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.'

212 The defendants submitted that no injunction should be ordered, first because they had not, at least since December 2023, materially interfered with Barfuss' representatives accessing the Property.[232] Secondly, it was submitted that there is a lack of clarity as to what the 'access rights' are which are claimed by Barfuss and referred to in the proposed injunction. The defendants submitted that they would abide by whatever the Court determined with respect to the injunctions sought with respect to the proposed drilling programme, and in relation to whether consent or compensation was required.

213 The defendants also emphasised that Barfuss had not progressed the work plan or otherwise facilitated work under the Licence in ways which were open to it. Categories of information required by the work plan other than the geological information had not been progressed by Barfuss even though it would have been possible for it, within the scope of the activity permitted pursuant to the injunctions in place, to meet with the ERR to understand the requirements. However no site meeting had occurred, and Barfuss had not called evidence from them.[233]

214 With respect to this last submission, I note that Ricardo Barfuss gave evidence that he had been advised by his lawyers not to communicate with the ERR directly[234] and I do not make any adverse conclusions arising from the absence of any meeting with the ERR.

It is inappropriate to grant any injunction in this case

215 It is inappropriate to grant any injunction in this case to facilitate Barfuss' access to the Property for several reasons. Primarily, I would not grant the injunction to enable the performance of activity other than 'work', as suggested for Barfuss. This is because the proposed injunction in referring to 'access rights' lacks specificity in its terms and leaves open the question of what activity on the land is encompassed by that phrase. There is also insufficient evidence as to what Barfuss seeks to do on the Property, if it cannot perform the diamond core drilling programme. As the history of this matter shows,[235] there have been material misunderstandings on both sides as to respective rights and obligations arising under the Licence and the Act, and also under the injunction earlier granted. It would be inappropriate to grant any injunction which left any room for doubt as to what the parties were or were not permitted to do.

216 Secondly, I do not consider it appropriate to make orders supporting Barfuss' access to and activity on the Property based on its rights under the Licence, as the evidence indicates that it is not, at present, compliant with several legal requirements attaching to the Licence, both under the Act and as conditions on the Licence.

217 The Act indicates an intention that conditions of licences be complied with. It provides in s 31 that the Minister may refuse to renew a licence if the licensee has not substantially complied with the Act, Regulations or any condition on the licence; and in s 38(1) that the Minister may cancel a licence if satisfied that the licensee has not complied with the Act, Regulations, or a condition on the licence.

218 As Barfuss' rights to enter onto the land derive from the Licence and the statutory scheme which governs it, it is relevant to consider non-compliance with conditions on the Licence or requirements imposed on licensees by the Act, in determining whether to grant orders enforcing as against the defendants, the ability of Barfuss to enter onto the Property.

Non-compliance with the statutory requirements

219 As noted above, s 26A requires a licensee proposing to carry out mining on agricultural land covered by a licence, to prepare a statement of economic significance of the mining that contains an assessment of the benefits to Victoria of the proposed mining, including employment and revenue considerations. This commences a process in which the landowner or occupier can then respond and may request excision of the agricultural land from the area covered by the mining licence. The landowner or occupier must provide an assessment of the benefits to Victoria in continuing the use of the land as agricultural land in support of that application.[236]

220 Pursuant to s 26A(4), the time for providing the statement of economic significance to the landowner or occupier is no later than 6 months after the date the licensee received notice that the licence was granted, or the date the licensee lodges the work plan required under s 40, whichever is the earlier.

221 Ms King gave evidence that the statement of economic significance had not been provided to her or Ms Miles.[237] Ricardo Barfuss gave evidence that he was not familiar with the statement of economic significance required under s 26A and that Barfuss had not provided it.[238]

222 The statement of economic significance was due, in this case, on the earlier of 6 months from around 5 September 2022 when Barfuss was granted the Licence (or shortly after when it could be inferred that Barfuss received notice of the Licence having been granted).[239] There having been no work plan lodged, the date on which the statement of economic significance should have been prepared and provided to the defendants was at a time in March 2023. By failing to have provided that statement to the defendants, Barfuss has not complied with the requirements of s 26A of the Act.

223 The Property is privately owned land which is being used for sheep breeding and grazing by Ms King and Ms Miles. I accept Ms King's evidence that she has been maintained sheep on the property for wool and for sale since January 2022, and that this has been a business and primary source of income from no later than 2023.[240] The land is, in my view, being primarily used for 'keeping animals [sheep] ... for the purpose of selling them or produce [wool] derived from them', within the meaning of paragraph (b) of the definition.

224 The omission to provide the statement of economic significance was first raised with Barfuss in this proceeding by the affidavit of Ms King filed on 10 April 2024 and there was no explanation in the evidence at the final hearing as to why Barfuss had not addressed this non-compliance. I consider that the non-compliance with s 26A cannot be dismissed as a minor matter. The purpose of the Act includes to encourage mineral exploration and economically viable mining 'in a way that is compatible with the economic, social and environmental objectives of the State'.[241] There is plainly a concern to ensure that mining is an economically appropriate use of land, and the requirement of a statement of economic significance required by s 26A is directed to enabling an assessment of whether there is any other more use of land more aligned with the economic interests of the State. I consider it would be inappropriate to grant any injunction enforcing a right of Barfuss to undertake activity on the Property while it remains non-compliant with s 26A.

225 The specific conditions of Barfuss' mining Licence included an obligation to submit a mining work plan and rehabilitation plan within a specific time frame. That condition was, at the request of Barfuss, varied by the ERR to require submission by 31 December 2025. Condition 1, however, which was not amended, requires Barfuss from the date of registration of the Licence, to 'expend $181,050 per year on work in the licensed area'.[242] Mr Barfuss' evidence was that Barfuss had not spent that amount of money on the licensed area in any year.[243] He said that money had been spent on legal costs in this proceeding.[244] As the requirement is for the specified amount to be spent on 'work on the licensed area' any such legal costs will not, in my view, be relevant for the purposes of the condition.

226 Although the defendants' resistance to Barfuss being on the Property may provide some explanation for the lack of expenditure on work on the land, it is not a complete explanation. It has been clear from an early stage that the defendants consider that Barfuss must comply with the compensation agreement or determination requirements of s 42(1)(h) in order to undertake work. However there is no evidence that Barfuss has offered compensation, and the evidence is instead to the effect that it takes the position that it was permitted to undertake various works, most recently the drilling programme, without agreeing compensation or taking steps to have it determined.

227 There was no evidence that the ERR, in the course of correspondence with representatives of Barfuss, and in the context of extending the time for compliance with condition 2 of the Licence, had taken any issue with the non-compliance with condition 1. However, I would not be prepared to regard the condition - or non-compliance with it - as having no significance. Given that the purpose of the Act is, relevantly, 'to encourage mineral exploration and economically viable mining and extractive industries which make the best use of, and extract the value from, resources', it could be inferred that the condition was designed to ensure that the licensee acted with some expedition to work on the land towards accessing any resources on it. I take the non-compliance with this condition into account as a secondary reason for declining to consider any injunction, in addition to the non-compliance with s 26A of the Act.

228 Finally, the Licence is also subject to various general conditions. Relevantly, condition 3.2 required the submission of a rehabilitation bond prior to commencing ground intrusive work or work involving the removal or damaging of native vegetation under the definition of low impact exploration. As the alternative injunction sought was to permit activity such as 'digging with spades' it would be relevant to consider whether that condition would be satisfied if such activity was to be carried out. There was no evidence as to whether Barfuss intended to submit a rehabilitation bond or was in a position to do so.

Further discretionary reason for declining to issue an injunction

229 It would also have been relevant to the exercise of my discretion, in addition to the above non-compliances with s 26A and the Licence conditions, that Barfuss does not appear to have acted diligently in progressing to a position where work could be commenced under the Licence. The various requirements for a work plan include matters which could have been progressed either by work off the Property, or inspections of the Property. Those matters include the descriptive elements involving risk identification and minimisation (ss 40(3)(b) and (c); reg 44), the community consultation plan (s 40(3)(d)), the rehabilitation plan (s 40(3)(e) and reg 41(b) or reg 43 as applicable). There was limited evidence that in the period since the injunction was originally ordered, Barfuss had utilised the ability to enter the Property to progress these aspects of a work plan. Although there was evidence of some obstruction by the defendants even after the injunction was granted[245] there was also evidence of ongoing opportunities to access the Property. Mr Barfuss' evidence was that the last time he sought to access the Property was around a year ago from the time of the trial, being March 2023.[246]

230 The initial proposal for a work plan provided by Uwe Barfuss to the ERR was very basic in content and showed little attempt to address matters such as risks to the public or the environment and other specific requirements.[247] The evidence overall established that Barfuss' primary interest was in performing the diamond core drilling campaign to ascertain what mineral resources are on the land. I also find on the evidence that Barfuss had not progressed any process to have compensation determined, nor made open offers for compensation as required by s 42(1)(h).

231 It is also relevant that Ms King gave evidence that although she opposed Barfuss entering the Property to conduct the proposed drilling campaign, she understood that Barfuss has a right to enter the Property, and had extended 'invitations' for this to occur on a planned basis.[248] I do not accept that 'invitations' are required for representatives of Barfuss as licensee simply to enter to inspect the Property, or do other non-intrusive activity on the land. Ms King's evidence demonstrated that she understood that Barfuss representatives are entitled to enter the Property at least for walk around inspections and surveying.[249] Access for that activity (which may remain necessary to prepare any work plan for proposed exploration) should not be qualified by any requirement of invitations or other conditions other than those on the licence (such as the condition to take all reasonable measures to prevent adverse impacts to livestock). Any further obstruction for access for the purpose of walk around inspections and surveying would be readily restrained by injunction in future.

232 In all the circumstances it is inappropriate to grant any injunction.

233 I will dismiss the proceeding after hearing the parties on the question of costs.

[1] The Property is located at 515 Charlotte Spur Track, Swifts Creek, and the Mining Licence is numbered MIN5561. It is dated 2 September 2025 but stamped as having been registered on 5 September 2022 (Affidavit of Natalie Claire McCabe sworn on 2 November 2023, [7] (First McCabe Affidavit); Exhibit NCM-1 p 4).

[2] First McCabe Affidavit, [7]; Exhibit NCM-1, 4-12.

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

[4] Affidavit of Ricardo Barfuss sworn 5 December 2023, [4] (First Barfuss Affidavit); Exhibit RB-1, 10-15.

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

[7] Originating motion filed 6 November 2023 and summons on originating motion filed 9 November 2023.

[8] Barfuss Corporation Pty Ltd v King & Anor [2023] VSC 763.

[10] As required by s 42(1)(h) of the Act.

[11] Orders of Harris J made on 9 May 2024, order 2(a).

[12] Orders of Harris J made on 11 June 2024 following hearing on 7 June 2024.

[13] Amended Originating Motion Between Parties filed 28 October 2024.

[14] Statement of Issues dated 7 March 2025.

[15] However Barfuss did make clear that it may still seek to use the equipment depending on what works program was ultimately determined: Transcript 18/10/24, T8.07-29.

[16] Statement of Agreed Facts dated 7 March 2025, [6] and [7]. Section 114(1) provides: 'If the licensee does not remove any plant from any land before, or within the period of 6 months after, the licence ceases to apply to that land, the plant becomes the absolute property of the Crown at the end of that period of 6 months'. Section 114(4) provides that '[p]lant that becomes the property of the Crown may be disposed of, or otherwise dealt with, by the Minister'.

[17] Barfuss Corporation Pty Ltd v King & Anor [2023] VSC 763.

[18] Reservation on the land in Vol 5653, Fol 474 (see First Barfuss Affidavit, Exhibit RB-1, 13). The reservations were not worded identically with respect to each parcel of the land comprising the Property, but the minor variations were not said by either party to be material for present purposes. See also Statement of Agreed Facts, [3].

[20] Or a 'retention licence', which is not relevant for present purposes.

[23] 'Sensitive receptors' is not a term defined in the Act or Regulations. The Workplan Guideline defines 'sensitive receptor' as follows for the purposes of the Guide (giving an indication as to how this matter will be considered in the workplan approval process):

'Sensitive receptors are people or other organisms that may have an increased sensitivity or exposure to an emission by virtue of their age and health (e.g. schools, day care centres, hospitals, nursing homes), status (e.g. sensitive or endangered species), proximity to the contamination, dwelling construction, or the facilities they use (e.g. water supply).

For the purposes of a work plan the sensitive receptors are described in relation to the environment, any member of the public, or land, property or infrastructure in the vicinity of the proposed work.'

[24] First Barfuss Affidavit; Affidavit of Ricardo Barfuss sworn 3 April 2024 (Second Barfuss Affidavit); Affidavit of Ricardo Barfuss sworn 24 April 2024 (Third Barfuss Affidavit); Affidavit of Ricardo Barfuss sworn 29 November 2024 (Fourth Barfuss Affidavit).

[25] Affidavit of Natalie Claire McCabe sworn 2 November 2023 (filed 6 November 2023) (First McCabe Affidavit); Affidavit of Natalie Claire McCabe sworn 7 May 2024 (Second McCabe Affidavit); Affidavit of Natalie Claire McCabe sworn 6 June 2024 (Third McCabe Affidavit); Affidavit of Natalie Claire McCabe sworn 13 September 2024 (Fourth McCabe Affidavit); Affidavit of Natalie Claire McCabe sworn 16 October 2024 (Fifth McCabe Affidavit).

[26] Affidavit of Dr Andrew Tunks affirmed 6 February 2025, and report at exhibit AT-1 (Tunks Report).

[27] Affidavit of Shelley King sworn 8 April 2024 (First King Affidavit); Affidavit of Shelley King sworn 1 May 2024 (Second King Affidavit); Affidavit of Shelley King sworn 4 June 2024 (Third King Affidavit); Affidavit of Shelley King sworn 17 October 2024 (Fourth King Affidavit); Affidavit of Shelley King sworn 16 January 2025 (Fifth King Affidavit). The defendants also filed and included in the Court Book an affidavit of Jenny Patricia Miles sworn 16 January 2025, and an affidavit of Will Gibson (Ms King's partner) sworn 16 January 2025. These affidavits simply referred to Ms King's five affidavits, and observed that each of Ms Miles and Mr Gibson had read them and agreed with that evidence insofar as it related to them. However no reference was made to these affidavits in the course of evidence or in submissions.

[28] First Barfuss Affidavit, [6]-[7].

[29] Third Barfuss Affidavit, [8]-[12].

[32] Second King Affidavit; Exhibit SCK-2, 16.

[33] First King Affidavit, [48]; Second King Affidavit [26]-[39].

[34] Second King Affidavit, [26]-[27].

[35] Second King Affidavit, [30]-[31].

[37] First King Affidavit, [45]-[49]; Transcript 12/03/2025, T143.15-22; Second King Affidavit; Exhibit SCK-2, 81 (Livestock Production Assurance Accreditation Certificate of Completion dated 23 March 2022).

[38] Second King Affidavit; Exhibit SCK-2, 79-80.

[39] Transcript 12/03/2025, T133.24-26, T136.05-24.

[40] Transcript 12/03/2025, T139.19-T140.01.

[41] First King Affidavit, [45]-[46].

[42] First King Affidavit, [47]; Exhibit SCK-1, 60-65; Fifth King Affidavit, [73].

[45] Transcript 11/03/2025, T36.07-12, T38.03-06.

[46] First McCabe Affidavit, [32]-[33]; Exhibit NCM-1, 82.

[47] Letter from Earth Resources Regulator to Barfuss dated 11 December 2024 and instrument of variation of Licence Conditions approved on 22 November 2024, CB 779-790.

[49] A public liability insurance policy was obtained by Barfuss for work on the property with effect from 6 May 2024.

[50] Amended Originating Motion filed on 25 October 2024, [3].

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

[52] The content of which is confidential: see s 101 of the Act.

[53] First McCabe affidavit, [11]-[29].

[55] Second Barfuss Affidavit, [12], [18], [20], [25].

[56] Second Barfuss Affidavit, [11(a)], [20], [25].

[59] Second Barfuss Affidavit, [10], [12].

[61] Transcript 15/04/24, T6.15-T9.15-23, T11.12-T14.06.

[62] Transcript 15/04/24, T12.06-T13.09, T16.17-26.

[63] First King Affidavit; See also the Fifth King Affidavit, [37]-[51].

[64] Transcript 15/04/24, T94.20-T96.13, T98.25-T99.22, T100.06-T101.19.

[65] Third Barfuss Affidavit, [6]-[7]; Exhibit RB-3 (Preparation of Work Plans and Work Plan Variations, Guideline for Mining Projects, December 2020 (version 1.3)) and Annexure A.

[67] Third Barfuss Affidavit, Annexure A.

[69] Second King Affidavit, [46]-[52], [56].

[70] Second King Affidavit, [23]; Exhibit SCK-2, 56-75 (Contract for the Sale of Land).

[71] Second King Affidavit, [43]-[44], [66], [68].

[72] Transcript 09/05/24, T114.23-T117.16, T120.29-T123.12.

[74] Orders of Harris J made on 9 May 2024, orders 2 and 3.

[75] Transcript 09/05/24, T143.08-T144.09.

[76] Third McCabe Affidavit filed on 6 June 2025 with the hearing on 7 June 2024.

[80] Ruling, 07/06/24, T81.02-20. The evidence filed at trial showed that Ricardo Barfuss did subsequently, on 12 June 2024, email the ERR to provide an initial work plan proposal and to propose an initial site meeting. Email from Ricardo Barfuss to the work plan approvals email address at the Department of Energy, Environment and Climate Action, 12 June 2024 (CB 345).

[81] Transcript 07/06/24, T26.30-T27.10.

[82] Third Barfuss Affidavit, Annexure A.

[83] Transcript 18/10/24, T2.17-25, in relation to the proposal to file the Amended Originating Motion.

[85] Fourth Barfuss Affidavit, [21]-[37].

[86] Fourth McCabe Affidavit, [6]; Exhibit NCM-4, 9-39 (Email from Ricardo Barfuss to the email address workplan.approvals@deeca.vic.gov.au, 12 June 2024, attaching documents including 'MIN5561 Proposed Work Plan (Initial Proposal Information)').

[87] Fourth McCabe Affidavit, Exhibit NCM-4, 37 (page from 'MIN5561 Proposed Work Plan (Initial Proposal Information)').

[88] Fourth McCabe Affidavit, Exhibit NCM-4, 41.

[89] Fourth McCabe Affidavit, Exhibit NCM-4, 55 (Email attaching letter of advice from Colin Dell, a Senior Environmental Assessment Officer at the Earth Resources Regulator to Ms Boan of Gadens on 28 August 2024) (CB346-351).

[90] Fourth McCabe Affidavit, Exhibit NCM-4, 57-58 (Email attaching letter of advice from Colin Dell, a Senior Environmental Assessment Officer at the Earth Resources Regulator to Ms Boan of Gadens on 28 August 2024).

[91] Fourth Barfuss Affidavit, RB-4 ('Code of Practice for Mineral Exploration, Standards, procedures and practical guidance under the Mineral Resources (Sustainable Development) Act 1990', Department of Economic Development, Jobs, Transport and Resources, 2014, page 6 (CB 636)).

[92] Fifth McCabe Affidavit, [7]-[8]; NCM-5, 6-7 (Letter dated 16 September 2024 from Jess Stephenson, Manager Licensing, Earth Resources Regulator, to Montana Pirruccio, Barfuss Pty Ltd).

[93] Fifth McCabe Affidavit, [7]-[8]; NCM-5, pp 8-11 (Letter dated 14 October 2024 from Gadens to Jess Stephenson, ERR).

[94] Fifth McCabe Affidavit, [7]-[8]; NCM-5, p 11 (Letter dated 14 October 2024 from Gadens to Jess Stephenson, ERR).

[97] Defendant's Outline of Argument filed on 26 February 2025, [9(j)].

[111] Tunks Report, 1, Executive Summary.

[113] Tunks Report, 1, Executive Summary.

[115] Transcript 12/03/25, T 105.21-T106.13, T106.22-30.

[117] The drilling holes identified as SR-5, MR-5, MR-6, NR-6 and NR-7 (Tunks Report, 1, 8).

[118] That is, 'ground intrusive work that - (i) is within 200 meters of a waterway'.

[119] Tunks Report, 8; Transcript 12/03/25, T87.26-T89.25.

[121] Drill holes NR-5, NR-6, NR-7, MR-4, MR-5, MR-6 and 'possibly' SR-5 (Tunks Report, 1, 10); Transcript 12/03/25, T80.14-T82.05.

[124] Fourth Barfuss Affidavit, [26].

[125] Fourth Barfuss Affidavit, [28].

[126] Fourth Barfuss Affidavit, [41(i)].

[127] Fourth Barfuss Affidavit, [37].

[128] Transcript 11/03/25, T62.02-T63.17.

[129] Transcript 11/03/25, T62.22-63.17.

[130] Transcript 11/03/25, T36.17-T37.29.

[132] Transcript 11/03/25, T44.10-23, T46.03-07. The 'Initial proposal information' for the proposed work plan was at CB 326-330 (cover email from Ricardo Barfuss to the Department of Energy, Environment and Climate Action dated 12 June 2024 at CB 333).

[133] Transcript 11/03/25, T39.23-T41.21.

[134] Transcript 11/03/25, T48.02-T48.26.

[137] Transcript 11/03/25, T64.22-T65.09.

[138] Transcript 11/03/25, T67.16-T68.06.

[139] Statement of Agreed Facts, [4]; CB 779-780.

[140] Fourth King Affidavit, [12]-[17]; Fifth King Affidavit [78], [81], [83]-[97].

[141] Fifth King Affidavit, [67]-[70], Exhibit SCK-5, 130-139.

[142] Fifth King Affidavit, [75]; Transcript 12/03/25, T139.21-T140.24.

[143] Transcript 12/03/25, T111.03-24.

[144] Transcript 12/03/25, T112.12-17.

[145] Transcript 12/03/25, T132.01-30.

[146] Transcript 12/03/25, T114.26-T115.18.

[147] Plaintiff's Submissions filed on 19 February 2025, [11].

[148] The s 4 definition of low impact exploration originally stated, in full:

(i) without using equipment (other than non-mechanical hand tools) to excavate on the land; and

(iii) without removing or damaging any tree or shrub on the land; and

(iv) without disturbing any Aboriginal cultural heritage within the meaning of the Aboriginal Heritage Act 2006 that is recorded in the Victorian Aboriginal Heritage Register under that Act; and

(v) without disturbing any place or object on the Victorian Heritage Register, or any archaeological site or relic included on the Heritage Inventory, under the Heritage Act 1995; or

(b) undertaking any other exploration activity that is declared to be low impact exploration under section 7B.

[149] Plaintiff's Outline of Argument in Reply filed on 5 March 2025, [4].

[150] Plaintiff's Submissions, [30]-[31].

[151] Transcript 12/03/25, T196.07-T198.03.

[152] Defendants' Outline of Argument filed on 26 February 2025, [17]-[18].

[153] Transcript 12/03/25, T164.24-T165.27.

[154] Defendant's Outline of Argument, [10].

[155] Transcript 12/03/25, T188.09-21.

[156] Defendant's Outline of Argument, [12].

[157] Transcript 12/03/25, T160.15-23.

[158] Transcript 12/03/25, T115.16-T115.18.

[161] Tunks Report, 4; Transcript 12/03/25, T99.03-08.

[163] Fourth Barfuss Affidavit, [26], [28].

[164] Transcript 12/03/25, T196.11-T198.03.

[165] Transcript 12/03/25, T114.26-T115.18.

[166] See Anderson v City of Stonnington [2016] VSC 374, [18] where McMillan J noted that the inclusive nature of the definition meant that the three examples were not exhaustive, but it was otherwise unclear what the definition may be construed to include.

[167] CB 36 (Plan of Area Mining Licence No 5561).

[168] Transcript 12/03/25, T201.15-19, referring to the maps included in the Tunks Report, p8.

[169] First King Affidavit, [22]; Fifth King Affidavit, [38]; Second Barfuss Affidavit [6], [10].

[170] Second Barfuss Affidavit, [22].

[171] Fourth Barfuss Affidavit, [26].

[172] Code of Practice for Mineral Exploration, 8.

[173] Sites MR-4, MR-5, MR-6, NR-5, NR-6, NR-7, SR-5; Tunks Report, 9-10.

[177] Plaintiff's Outline of Argument in Reply, [2(b)].

[178] Transcript 12/03/25, T151.03-14.

[179] Transcript 12/03/25, T149.13-24.

[180] Transcript 12/03/25, T153.03-12.

[181] Transcript 12/03/25, T160.01-23.

[182] Transcript 12/03/25, T153.14-29.

[183] Transcript 12/03/25, T161.25-31.

[184] Defendant's Outline of Argument, [9(j)].

[185] Transcript 12/03/25, T162.10-163.10.

[189] See, eg South Australia v Lampard-Trevorrow [2010] SASC 56; (2010) 106 SASR 331, [217] (Doyle CJ, Duggan and White JJ); Collector of Customs v Savage River Mines (1988) 79 ALR 258, 263 (Fox, Davies and French JJ). See also Tradieh v LM Hayter & Sons Pty Ltd [2025] NSWSC 840, [47] (Stern J) and the authorities cited there.

[190] As provided by s 40A of the Act.

[191] Work Plan Guidelines, [4.3], [4.4] and [4.5]; See also Appendix A which refers to the Risk Assessment Process.

[192] For example, the information required by reg 42(d) as to a general description of the mine operations is elaborated in some detail: Work Plan Guideline, 41-43.

[193] Transcript 12/03/25, T162.27-163.10.

[198] Third Barfuss Affidavit, Annexure A, 7.

[200] The Work Plan Guideline was not provided to Dr Tunks in his instructions and he understandably did not make any reference to it. Transcript 12/03/25, T85.31-T86.05.

[201] Plaintiff's Outline of Argument in Reply, [17]-[18].

[202] Plaintiff's Outline of Argument in Reply, [19]-[20].

[203] Plaintiff's Outline of Argument in Reply, [21].

[204] Section 80 provides for a process by which the Minister may determine the amount of a rehabilitation bond, which involves a number of steps including, if the land is private land, consultation with the local council and with the owner of the land.

[205] Plaintiff's Outline of Argument in Reply, [22].

[206] First Barfuss Affidavit, [27].

[207] Which is a relevant guide to construction: Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104, 116-117 [46]-[48] (in the context of construction of commercial contract provisions).

[208] Defendants' Outline of Argument, [29]-[31].

[209] See paragraphs (b) and (c) of the definition of 'exploration' in s 4.

[210] Defendants' Outline of Argument, [33]-[35].

[211] Defendants' Outline of Argument, [41]-[42].

[212] Barfuss Corporation Pty Ltd v King and Anor, [2023] VSC 763, [37].

[213] Barfuss Corporation Pty Ltd v King and Anor, [2023] VSC 763, [38]-[41].

[214] Barfuss Corporation Pty Ltd v King and Anor, [2023] VSC 763, [44]-[50].

[215] Regulations, Schedule 14 'Infringements', Item 15 (emphasis added). The conditions on the Licence relevantly include general condition 3.2, which requires that prior to commencing 'ground intrusive work or work involving the removal or damaging of native vegetation under the definition of low impact exploration', Barfuss must submit a rehabilitation bond to the satisfaction of the Minister. General condition 3.3 requires that where ground intrusive work or work involving the removal or damaging of native vegetation is carried out under the definition of low impact exploration, Barfuss must notify the ERR of information about the work.

[217] Transcript 12/03/25, T224.20-30.

[222] Unless, pursuant to s 15(6A), the Minister considers it unnecessary or inappropriate in the circumstances for the applicant to have to satisfy the Minister of those requirements.

[224] Transcript 11/03/25, T43.28-T44.02 (Ricardo Barfuss); Tunks Report, 1 ('The aim of the proposed exploration program is to understand the presence (and or) absence of gold endowed structures and understand the economic viability of any mining project').

[225] Transcript 11/03/25, T43.31-T44.02 (Ricardo Barfuss); Transcript 12/03/25, T105.21-29 (Dr Tunks).

[226] Pursuant to orders of Harris J made on 16 September 2024.

[227] Fourth McCabe Affidavit, [11(d)].

[228] Ricardo Barfuss gave evidence that Barfuss applied for the Licence because it had information that it was worth doing further mining, but also that he was not aware of what the likely output was or what the basis of the estimate of annual output of 3,000 tonnes, contained in the initial work plan proposal, was; Transcript 11/03/25, T44.06-23.

[229] Transcript 12/03/25, T158.16-31.

[230] Transcript 12/03/25, T119.20-27.

[231] Transcript 12/03/25, T117.27-31, T119.20-27.

[232] Transcript 11/03/25, T29.28-T30.21.

[233] Transcript 12/03/25, T154.02-13.

[234] Transcript 11/03/25, T38.30-T39.22, T49.13-18.

[235] See paragraphs [45] to [59] above.

[237] First King Affidavit, [42]; Second King Affidavit, [41].

[238] Transcript 11/03/25, T64.22-65.09.

[239] The evidence was that Barfuss had made an application to the Mining Warden on 19 September 2022 in relation to a dispute involving the Licence, so that it was clear that Barfuss was on notice from at least that date.

[240] In this respect I rely on the classification of the Property by the East Gippsland Shire Council as mixed farming and grazing from no later than September 2023, and registration with Agriculture Victoria, as referred to at [39] above.

[243] Transcript 11/03/25, T67.22-T68.06.

[245] Second Barfuss Affidavit, [10], [12].

[247] Fourth McCabe Affidavit, [6], Exhibit NCM-3, 9-39.

[248] Transcript 12/03/25, T132.28-T133.3.

[249] Senior counsel for the defendants also submitted that he was 'instructed to convey' to the Court an undertaking by the defendants, subject to any appeal rights of course, to abide by the decision of the court on this question'. As there was some ambiguity as to whether the undertaking was to comply with any decision that Barfuss could undertake diamond core drilling without complying with compensation requirements, or was of broader scope, I do not treat it as a formal undertaking with any relevance as such in this case, but as a commitment to act in accordance with any guidance in the reasons for decision; Transcript 11/03/2025, T30.25-30.