(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: