Rossmar Park Pastoral Co Pty Ltd v Coal Mines Australia Pty Ltd

CATCHWORDS : ADMINISTRATIVE LAW - appeal from Chief Mining Warden - issue of injunction by Warden's Court - inunction held to be interlocutory - no error, except failure to issue reasons - order directing reasons be issued

Coco v R [1994] HCA 15; (1994) 179 CLR 427 Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309 Ex Parte Henry; Re Commissioner of Stamp Duty (1963) 63 SR 298 Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423 CASES CITED : International Finance Trust Company Limited & Anor v New South Wales Crime Commission [2008] NSWCA 291 Pettit v Dunkley [1971] 1 NSWLR 376 Public Service Board of NSW v Osmond [1986] HCA 7; (1986) 159 CLR 656 Soulemezis v Dudley (Holdings) Pty Ltd [1987] 10 NSWLR 247 Stow v Mineral Holdings (Australia) Pty Ltd (1977) 14 ALR 397

PARTIES : Rossmar Park Pastoral Co Pty Ltd (ACN: 000 343 000) (Plaintiff) Coal Mines Australia Pty Ltd (ACN: 062 855 270) (Defendant)

COUNSEL : S J Burchett (Plaintiff) R Beasley (Defendant)

SOLICITORS : Long Howland Lawyers (Plaintiff) Minter Ellison Lawyers (Defendant)

LOWER COURT JURISDICTION : Warden's Court of New South Wales

LOWER COURT JUDICIAL OFFICER : His Honour John Bailey, Chief Mining Warden

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

13849/2008 Rossmar Park Pastoral Co Pty Ltd v Coal Mines Australia Pty Ltd

JUDGMENT 1 HIS HONOUR: Rossmar Park Pastoral Co Pty Ltd is in dispute with Coal Mines Australia Pty Ltd (CMA) in relation to the basis upon which CMA may gain access to Rossmar's land in order to carry out work associated with the exploration licence granted to CMA by the Minister for Mineral Resources on or about 12 April 2006. 2 The exploration licence was granted by the Minister for an initial period of five years and, following a failure to agree between themselves on appropriate access arrangements, access was resolved by the Chief Mining Warden by making an Access Arrangement. That arrangement was made on 18 April 2008. 3 Notwithstanding the determination of an Access Arrangement, the parties could still not agree on when and in what circumstances access should be granted. Rossmar, it seems, did not agree with the decision of the Chief Mining Warden. On 17 July 2008, CMA was denied access to the land by a grader that was blocking the road and later on that day by a grader and other vehicles doing likewise. 4 The Chief Mining Warden, on 18 July 2008, granted an injunction prohibiting Rossmar its officers or employees (or any person occupying or residing on the land) from hindering or preventing CMA from entering the land to carry out prospecting operations. It is from the grant of that injunction that this appeal is taken. Background 5 Although the facts, generally, are not particularly controversial, it is necessary to recite some further background. 6 As already noted, the Chief Mining Warden made an Access Arrangement between Rossmar and CMA in respect of the exploration licence granted by the Minister on 12 April 2006. 7 Clause 3 of the Access Arrangement is in the following terms: "3. Notice of Access

(a) Notice in writing will be given to the Landholder or Landholder's representative at least five (5) days in advance of the first date that CMAL intends to enter upon the Lands, provided however the drilling of the exploratory hole(s) shall take place, wherever possible, at a time determined following dialogue between the Mining company and the Landholder. Every effort shall be made to Access the Land after harvesting a crop and prior to the seeding of a fresh crop.

(b) CMAL shall give reasonable notice to the Landholder when requiring subsequent Access and shall use its best endeavours to minimise disruption to, or interference with, the Landholder's operations on the Lands.

(c) Unless in the case of an emergency CMAL will only Access the Lands between 7 AM and 5 PM on business days unless otherwise agreed with the Landholder. CMAL must notify the Landholder of any such emergency and Access as soon as is reasonably possible in the circumstances." 8 The parties continued to dispute the issue of the access by CMA to the land. Pursuant to clause 14 of the Access Arrangement, CMA notified the solicitors for Rossmar of a dispute. (Clause 14 of the Access Arrangement requires, upon notification of the dispute, the parties to attempt to resolve it within 21 days.) 9 By letter dated 27 June 2008, Rossmar advised CMA in the following terms: "We confirm that, subject to what follows, your client may enter our client's Land within seven days pursuant to the various Access Arrangement and compensation agreements determined by the Chief Mining Warden and the various notices of intention to access previously issued by CMAL. To clarify our letter dated 26 June 2008, whilst our clients do not dispute the Chief Mining Warden's decision dated 18 April 2008, our clients have instructed us to advise that they do not, and will never, agree with it." 10 By further letter dated 30 June 2008, Rossmar advised CMA that it could "enter our … Land as follows within seven days pursuant to the various Access Arrangement and compensation agreements determined by the Chief Mining Warden". 11 On 3 July 2008, CMA accessed the land. 12 On 10 July 2008, CMA notified Rossmar that it was: "now proposing to carry out the drilling operations the subject of the Access Arrangements at the site … during the period of 16 July 2008 to 7 August 2008" and sought access to the land. This request was confirmed by letter dated 15 July 2008. 13 By letter dated 15 July 2008, Rossmar required CMA to give "a set date and time as to when [it] will be requiring access to [Rossmar's] … Land". 14 On 16 July 2008, CMA entered the land and prepared a drill site in anticipation of drilling commencing the next day. On 17 July 2008, as earlier noted, CMA twice attempted to access the land but were prevented from so doing: on the first occasion by a grader; and on the second occasion by a grader and other vehicles. 15 It should be noted that in each of the letters seeking access, CMA stated that the dates proposed "may change slightly due to operational issues" and that it would "contact [Rossmar] closer to the commencement date to confirm the first date of access". In the letter from Rossmar to CMA of 16 July 2008, Rossmar sought 24-hours' prior notification of the exact date and time on which access would be sought. In response, CMA noted that the Access Arrangements required only "reasonable notice" between "specified hours and on business days only". 16 Application was made, as earlier noted, pursuant to s 313 of the Mining Act 1992 to the Chief Mining Warden for an injunction restraining Rossmar from hindering CMA's access to the property in question. The application for an injunction was supported by an affidavit of Patrick Synon Holland, a partner in Minter Ellison Lawyers. The affidavit annexed a number of documents including correspondence between the parties and the file note relating to the obstruction to access. There were photos of the graders and/or other vehicles that were obstructing access. 17 On the same date, the Chief Mining Warden issued the following injunction: " IN THE WARDEN'S COURT CASE NO: 2008/36 OF NEW SOUTH WALES

MINING ACT 1992 SECTION 313 INJUNCTION

Name: Coal Mines Australia Pty Ltd (Complainant) (formerly known as Coal Mines Australia Limited) (ACN 062 855 270) Address: C/- Minter Ellison Lawyers 88 Phillip Street, SYDNEY NSW 2000

Name: Rossmar Park Pastoral Co. Pty Ltd (Defendant)

WHEREAS on 18th July 2008, the Complainant made application to the undersigned, Chief Mining Warden for the State of New South Wales, for an Injunction prohibiting the said Defendant, its directors, officers, employees, agents and any persons occupying or residing on the land from: · Hindering or preventing the Complainant from entering Lot 117 DP 755494 ('Land') to carry out prospecting operations on 16th July 2008 to 7 August 2008 inclusive. AND WHEREAS I am satisfied that this matter is of such urgency that an Injunction should issue forthwith.

NOW I, THE UNDERSIGNED, GRANT AN INJUNCTION prohibiting the said Defendant, its directors, officers, employees, agents and any persons occupying or residing on the land from: · Hindering or preventing the Complainant from entering Lot 117 DP 755494 ('Land') to carry out prospecting operations on 16th July 2008 to 7 August 2008 inclusive.

AND FURTHER TAKE NOTICE THAT THIS INJUNCTION shall operate forthwith and continue until 17 September 2008 unless sooner varied or discharged.

AND I FURTHER DIRECT that the matter be listed at the sittings of the WARDEN'S COURT, COURT HOUSE GUNNEDAH ON THURSDAY THE 31ST JULY 2008 AT TEN A.M. and that the within Injunction or a facsimile hereof be served upon the Defendant on or before 21st July 2008, together with a copy of the documentation which supported the application for this Injunction.

DATED at SYDNEY in the State of New South Wales this 18th day of July 2008.

J. A. Bailey Chief Mining Warden " 18 It is noteworthy that the injunction issued on 18 July 2008 operated only until 17 September 2008. The injunction is not now in force, and was not anticipated to extend beyond two months' duration. 19 On 24 July 2008, solicitors for CMA wrote to Rossmar (or their solicitors) and, proposed that CMA would not attempt to access the land for a period of three weeks in order that the parties could reach a "mutual agreement" as to what constituted reasonable notice. It requested a timeframe during which those meetings could occur. This letter was written four days before the commencement of the proceedings before this Court. Further, following a request by Rossmar, CMA requested the Chief Mining Warden to discharge the injunction granted by him. That request was dated 28 July 2008. The Chief Mining Warden discharged the injunction on the same date. Plaintiff's Submissions 20 The appeal is brought pursuant to the terms of s 321 of the Mining Act. It is an appeal as of right. It raises a number of grounds which include:

(b) the absence of evidence satisfying the Chief Mining Warden of the urgency of the matter, an act or threat by Rossmar to deny CMA lawful access; and/or

(c) the right of CMA to carry out its operations on the basis that it had not complied with its notice obligations under the authority and Access Arrangement. 21 The summons also raises the power of the Chief Mining Warden to grant an injunction in the terms it was granted and denial of natural justice, the latter on the basis that Rossmar was not heard on the application. Further, it raises an alleged error by the Chief Mining Warden on the proper construction of the Access Arrangement. Finally, the summons raises that the decision of the Chief Mining Warden was so unreasonable and unjust that the exercise of discretion must have miscarried. 22 Before the Court, Rossmar sought leave to add a further ground of appeal, namely, that the Chief Mining Warden erred in law not to create a record of the application or not to issue reasons for his decision. 23 CMA, correctly, submits that the orders sought by Rossmar, in its summons, are now futile. The injunction granted by the Chief Mining Warden on 18 July 2008 was discharged, as noted above. The orders of the Court that are sought can have no effect. The injunction is not on foot and cannot, by this Court, or otherwise, be set aside. Consideration of Alleged Substantive Errors 24 Nevertheless I will briefly deal with the issues raised by Rossmar. The Mining Act is an Act promulgated for the purpose of facilitating certain mining activities, including exploration activities. Section 29 of the Mining Act (the Act) grants to the holder of an exploration licence (in this case, CMA) a right to prospect on the land specified in the licence. In the case of prospecting titles dealt with by Part 8 Division 2 of the Act, s 140 requires the holder of a prospecting "title" not to carry out prospecting operations otherwise than in accordance with the access arrangements. The Act then provides for those matters, for which an access arrangement may make provision, and requires an arbitrator, in determining access arrangements, to specify compensation to the landholder of the land concerned. 25 The jurisdiction of the Warden's Courts is outlined in s 296 of the Act and includes any question or dispute arising as to the right of entry conferred under the Act. There continued to be a dispute as to the right of entry of CMA under the Act and under the Access Arrangements, which Access Arrangements are given force by the Act. It is, in that context, that the provisions of s 312 and s 313 of the Act must be understood. Section 312 gives the Warden's Court jurisdiction to grant an injunction "if an application is made … by a person claiming a legal or equitable interest". 26 An exploration licence granted under the Act is not a mere licence. It is a right granted under the Act entitling the holder of the licence to extract minerals from the land. It is of the nature of a profit a prendre and wholly analogous thereto. A profit a prendre is a right that creates an interest in land: Ex Parte Henry; Re Commissioner of Stamp Duty (1963) 63 SR 298. Further, under the terms of the exploration licence, the holder is required to pay royalty to the Minister on coal extracted, which coal may be up to an amount of 60 cubic metres. For this reason also, the exploration licence grants an interest in land: Stow v Mineral Holdings (Australia) Pty Ltd (1977) 14 ALR 397 at 410 (per Aickin J). As a consequence, the holder of an exploration licence is a person with a relevant legal or equitable interest in the land and capable of making application under s 312 of the Act. 27 Further, the provisions of s 312 grant jurisdiction to the Warden's Court in circumstances where an application is made "by a person claiming to hold a legal or equitable interest in any land", and jurisdiction is not conditioned upon the existence, objectively, of the legal or equitable interest. It seems that the satisfaction of the Warden's Court of the fact that the person holds a legal or equitable interest in relevant land would be sufficient. Indeed, on one view, provided that the person bona fide claims to hold such a legal or equitable interest, jurisdiction is granted to the Warden's Court to grant an injunction, and even the satisfaction of the Warden's Court, of that legal or equitable interest, is unnecessary. 28 In any event, it seems, in the context that the term is used in s 312 of the Act, and the context of the Act as a whole, a holder of an exploration licence is a person with a relevant legal or equitable interest in land subject to an authority or mineral claim. Obviously, so too would be the holder of the registered title in the land. 29 Section 313 gives the Warden's Court jurisdiction to grant an injunction, without notice to the other side, provided that the injunction operates for no more than two months. This jurisdiction is granted in circumstances where the Warden's Court is satisfied that there are urgent reasons for the granting of the injunction. 30 Rossmar submits that this provision is an abrogation of the rules of natural justice. I do not accept that proposition, but will deal with it on the basis that it is partly an abrogation of the necessity to give notice of orders being made against a party. Rossmar further submits that the abrogation of common law rights of this kind would be construed narrowly, because of the rule of construction, or rule of law, that the legislature will not be taken to have curtailed fundamental rights or freedoms, unless an intention so to do is clearly manifested by unmistakable and unambiguous language: Coco v R [1994] HCA 15; (1994) 179 CLR 427 at 437. 31 Modern legislatures regularly enact laws that take away or modify common law rights. This particular statute is concerned with the facilitation of mining and/or exploration rights and the balancing of that economic imperative and the rights of persons granted such licences, on the one hand, with the holders of land otherwise entitled to the enjoyment of that land, on the other. 32 The only proposition for which Coco v R stands, in this respect, is that there must be some manifestation or indication that the legislature has directed its attention to the question of the abrogation or curtailment of such basic rights in order for there to be an express authorisation of the abrogation of those rights: Coco v R at 437. 33 In this particular instance, the statutory scheme necessarily abrogates or curtails fundamental rights. Much of the Act is concerned with the balancing of the interests of those fundamental rights in land ownership and the right of persons granted an exploration or mining licence. Section 313 expressly grants to the Warden's Court the right to grant an injunction, when it is satisfied that there are urgent reasons so to do, for a period of two months. This is an express abrogation, if it be an abrogation, of the rights of the person who is injuncted and no further express authorisation of the capacity of the Warden's Court to abrogate or curtail those rights is necessary: see discussion in Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309 at 328-329. 34 If it not be clear from the foregoing, the provisions of s 313 require only the satisfaction of the Warden's Court of the urgent reasons for granting the injunction. It does not require, as a jurisdictional or legal precondition to the exercise of the injunctive power, the objective existence of such urgent reasons. 35 The material that was before the Warden's Court was more than sufficient to satisfy the Chief Mining Warden of urgent reasons. This material that was before the Warden's Court included photographs of the blocking of the road, an affidavit attesting to the blocking of the road, the correspondence between the parties relating to seeking and refusing access and the Access Arrangement (with which the Chief Mining Warden was familiar, given that the Chief Mining Warden arbitrated the terms of it). There was more than sufficient material on which the Chief Mining Warden could be satisfied of urgent reasons such that it would satisfy the jurisdictional precondition to the grant of an injunction. 36 Further, it is clear that the provisions of s 313, and a proceeding for an injunction to last for a period of two months, is an interlocutory proceeding. It is a proceeding for the purpose of giving temporary rights (i.e. for a period up to two months) in circumstances where the dispute as to access may otherwise be dealt with by the Court, pursuant to the provisions of s 296(b1) of the Act. The considerations before the Warden's Court include that the order will have an interim effect, ancillary to the resolution of any dispute as to access; the injunction does not finally determine the rights as between the parties or substantive rights at all; and, the injunction does not establish any issue estoppel or res judicata in that further application may be made to discharge the order once made: see Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423 at 443. 37 The plaintiff submits that the terms of the order, insofar as it allows for discharge or variation of the order within the two-month period, is beyond jurisdiction. This, the plaintiff submits, arises from the possibility that a variation could be made, which would extend the injunction beyond the two-month period, and which extension would be inconsistent with the terms of s 313(2) of the Act. This, in my view, is a wholly inappropriate reading of the injunction. 38 Properly construed, the terms of the injunction operate for a period of two months, unless discharged earlier or varied in a way which affected the manner of its operation at an earlier time. The Warden's Court, in specifying that qualification, was contemplating an order varying or discharging the injunction within the terms of the injunction and limiting its operation. Such a condition allowed, once notice had been received, Rossmar to approach the Warden's Court to seek the discharge of the injunction or to vary its terms so that it interfered less with the operations of Rossmar. There is no substance to this complaint. It must be assumed that the Warden's Court contemplated an order within its jurisdiction. 39 The next matter with which the Court will deal is the issue associated with the submission of Rossmar that the notice given on 10 July 2008 by CMA was not sufficient notice for the purpose of complying with the Access Arrangement. As a matter of fact, the letter of 10 July 2008 was faxed on that day and gave in excess of five days' notice of CMA's intention to gain access to the land (see Clause 16 of the Access Arrangement). The letter was the culmination of correspondence and dialogue between the parties. The notice complied with clause 3 of the Access Arrangement. 40 Further, whether or not there had been sufficient notice by the correspondence of 10 July 2008, this issue is not a matter that goes to the jurisdiction of the Warden's Court or to the existence of error. The Warden's Court was concerned only with whether there were, in its view, urgent reasons for the grant of an injunction. It was satisfied of that fact. It was further satisfied that CMA should be granted access for the period of the injunction. It granted the injunction. If, as seems to be submitted, the Warden's Court were in error as to whether, as a matter of fact, the notice given by CMA complied with the provisions of the Access Arrangement, this is not a matter on which the statute requires the Warden's Court to be satisfied. 41 The existence of proper notice may have been a fact, the existence of which may affect the exercise of discretion. But I find that there was sufficient notice, and the material before the Warden's Court disclosed such notice. 42 Like most of these matters, it is difficult to determine, precisely, that which the Chief Mining Warden had in mind at the time of the grant of the injunction, because reasons were not issued. Lack of Reasons 43 Rossmar submits that an error of law has occurred, in that the Chief Mining Warden failed to issue reasons for his decision to grant the injunction. CMA submits that the terms of the injunction disclose the reasons of the Chief Mining Warden. 44 The terms of the injunction certainly disclose that the Chief Mining Warden concluded that there were urgent reasons for the grant of the injunction, although the basis for so concluding is not ascertainable from the terms of the injunction. 45 Further, it is clear that the Chief Mining Warden took the view that the injunction was interlocutory and that the matter (which I have taken to be the dispute between the parties as to access) was to be listed before the Warden's Court on 31 July 2008. Otherwise the Chief Mining Warden issued no reasons. 46 During the course of the proceedings, I referred counsel for the parties to the judgment of the Court of Appeal in International Finance Trust Company Limited & Anor v New South Wales Crime Commission [2008] NSWCA 291, on the question, inter alia, of the necessity to issue reasons. There is little doubt that the grant of an injunction by the Warden's Court is an exercise of judicial power. Further, the consequences of the injunction to the person against whom it operates are significant in that the person is, then, subject to a qualification on their otherwise unhindered use of their land. Further, it is an interlocutory hearing of a kind in which one of the parties is not present and, to the extent that the proceedings come before the Court, it is necessary for the party to understand the basis that the injunction has issued. Lastly, there is a right of appeal (to the District Court and to the Supreme Court). All of these point to the proposition that it is necessary, if not immediately, then at some point, to issue reasons for the issue of an injunction by the Chief Mining Warden. 47 The giving of reasons is, as has been made clear, a normal incident of the judicial process, especially when an appeal lies from the order given: Public Service Board of NSW v Osmond [1986] HCA 7; (1986) 159 CLR 656 at 667; Pettit v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Ltd [1987] 10 NSWLR 247 at 277-278. 48 As is made clear by the majority in International Finance Trust Company, supra, the reasons need not be elaborate. Such reasons need not be issued at the time the injunction issues, but may be reserved and issued shortly thereafter. Further, as has been made clear, by the majority of the Court of Appeal in International Finance Trust Company, supra, the reasons will satisfy the requirement to issue reasons, if they state with economy and conciseness the jurisdictional basis and/or the discretionary basis for the issue of the order. In my opinion, the issue of an injunction under s 313 requires the Warden's Court to issue reasons, brief though they may be, setting out the basis in jurisdiction and discretion for the issue of the injunction. Conclusions 49 For the foregoing reasons, I do not consider that there is any basis for the issue of orders quashing the injunction. The injunction no longer operates by force of the orders of the Warden's Court. As has been made clear, the injunction has already been set aside and is no longer in force. Further there is no fundamental basis on which the Warden's Court has erred, in law, jurisdiction or in fact. 50 However, the above statement must be qualified by my determination that there is a duty on the Warden's Court to issue reasons for decision. It has failed so to do. The issue of such reasons, at this time, is not wholly futile, because there exists an ongoing dispute between the parties as to the access arrangements. 51 In the circumstances, the Court makes the following orders:

(i) The Chief Mining Warden issue reasons for the grant of the injunction issued on 18 July 2008 in the matter of Coal Mines Australia Pty Ltd v Rossmar Park Pastoral Co Pty Ltd in case number 2008/36;

(iii) The parties have liberty to apply to the Court, through my Associate, for a consequential order arising from the reasons for judgment and/or any order as to costs. Such application to be made no later than 4 February 2009.

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