King v Der

[2010] NSWLEC 1249

Land and Environment Court

of New South Wales

CITATION:

King v Der & Anor [2010] NSWLEC 1249
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:

Plaintiff
Frank King

1st Defendant
Robert Der

2nd Defendant
Jozef Der

FILE NUMBER(S):

80003 of 2010

CORAM:

Dixon C

KEY ISSUES:

MINES AND MINERALS :- unlawful mining of opal

LEGISLATION CITED:

Mining Act 1992
Land and Environment Court Act 1979
The Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005

CASES CITED:

Briginshaw v Briginshaw [1938] HCA 34;(1938) 60 CLR336

DATES OF HEARING:

19 August 2010

 
DATE OF JUDGMENT: 

24 September 2010

LEGAL REPRESENTATIVES:

PLAINTIFF
Mr F King (Litigant in person)

DEFENDANTS
Mr R Der (Litigant in person)
Mr J Der (Litigant in person)

JUDGMENT:

- 1 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Dixon C

24 September 2010

80003 of 2010 King -v- Der & Anor

JUDGMENT

Introduction

1 The plaintiff, Frank King, claims that the defendants, Robert Der and Jozef Der, have removed about 148 cubic metres of opal bearing rock and earth from his Mineral Claim 26008 at Lightning Ridge, known as “Ken’s Retreat C14”(King’s Claim).

2 He seeks an order for damages under s 298 of the Mining Act 1992 (the Act) in the amount of $76,149.00 together with interest and his legal costs. The claim includes the amount of $53,102.00 for the opal dirt removed; $18,965.00 for loss of opportunity to mine a further 50-60 cubic metres due to the actions of the defendants; and, $4120.00 to cover the cost of the works necessary to stabilise the walls and roof of the mine area.

3 The defendants deny the claim and oppose any order for the payment of money to the plaintiff, however, they do admit to entering three feet into the King’s Claim.

4 The questions that I must determine are: how much opal bearing rock and earth did the defendants remove? Did they take opal and; if so, what is the monetary value of the removed opal? Did the defendants’ actions cause the mine area to become unstable? And finally what, if any, is the amount of damages payable to the plaintiff by the defendants.

Interlocutory relief

5 On late Friday 28 May 2010, the plaintiff made an urgent application by telephone for an injunction to restrain the defendants from mining his Mineral Claim and taking opal.

6 In support of that application, pursuant to s 296 of the Mining Act, the plaintiff relied on a summons setting out the facts and an affidavit sworn by the Mining Registrar at Lightning Ridge. After a consideration of the evidence the Court decided that the plaintiff who had the requisite interest raised a serious question to be tried namely: whether the defendants mining of opal from the plaintiff’s Mineral Claim was in breach of the Mining Act? In weighing up the likely injury to the plaintiff if an injunction was refused and the likely injury to the defendants if an injunction was granted the Court decided on “the balance of convenience” to grant the ex parte interlocutory injunction until such time as the defendants could be brought to a hearing in respect of the matter.

7 The Court accepted the plaintiff’s submission, based on the evidence, that if the injunction was not granted there would be irreparable injury caused to the plaintiff because in all probability the defendants would continue to mine King’s Claim over the weekend. The seriousness of the matter was highlighted by the fact that it was the Mining Registrar who had advised the plaintiff to approach the Court for an urgent injunction and also to inform the police about the matter. His evidence, which was based on a site inspection on 4 May 2010, was that the defendants were unlawfully mining into the King’s Claim despite having been shown the boundaries of the claims and directed to stop mining the King’s Claim. This evidence coupled with the plaintiff’s evidence that they were still mining supported the grant of an interlocutory injunction. The injunction effectively preserved the status quo until a telephone hearing by the Court scheduled the following week on 4 June 2010.

8 As it happened, the defendants did contact the Court as ordered on the 4 June 2010 and the application for an injunction was heard over the telephone. At that time the defendants agreed to comply with the terms of the injunction pending a hearing about the matter.

9 Therefore, the injunction remains in place to restrain the defendants from working their Mineral Claim 30592 until further order of the Court in this hearing.

Background

10 The plaintiff is the registered holder of Mineral Claim 26008 located at “Kens Retreat C14”, Lightning Ridge, granted pursuant to s 190 of the Act ("King's Claim”).

11 The defendant, Robert Der, is the registered holder of Mineral Claim 30592 located at “Kens Retreat C10", Lightning Ridge”, granted pursuant to s 190 of the Act ("Der's Claim”).

12 The defendant Jozef Der is the father of Robert Der and together they work the Der’s Claim, which adjoins the northern boundary of King's Claim.

13 The defendants admit to mining 3 feet into King's' Claim from Der's Claim and removing a small amount of dirt. However, they have processed that dirt from the King’s Claim and submit they found no opal.

14 The plaintiff accepts that the dirt is no longer able to be identified but rejects the suggestion that the defendants mined 3 feet into his Mineral Claim and asserts that they removed about 148 cubic metres of opal-bearing rock and earth from the King’s Claim.

15 The plaintiff also alleges that the opal dirt removed contained opal and the defendants retain that opal or the proceeds of the sale of that opal.

16 The plaintiff claims that the defendants did not mine safely when they broke the boundary between the claims and that they destabilised the mine area in the King’s Claim.

17 As noted earlier, the plaintiff commenced these proceedings by the filing of a summons in accordance with the Part 6 of the Uniform Civil Procedure Rules 2005 (UCPR), which with the Court’s leave, was amended.

18 The amended summons, as particularised in the points of claim dated 2 July 2010, states:

“The Plaintiff claims that the Defendants have unlawfully mined King's Claim and has contravened the Mining Act 1992 and the conditions of Der's Claim because:
a. S 195 of the Act permits the Defendants to carry out mining only on Der's Claim or any other land for which the Defendants hold a current Mineral Claim issued pursuant to the Act;
b. The Defendant has failed to obtain from the Mining Registrar any approval pursuant to the Act to undertake any mining or mining-related activities on King's Claim;
c. At no time has the Plaintiff authorised the Defendant to carry out any mining or mining-related activities on King's Claim; and
d. The conditions of Der's Claim require the holder to comply with the provisions of the Act.
Further and/or in the alternative, the Defendant negligently mined King's Claim because:
a. The Defendant owed the Plaintiff a duty of care to ensure that the Defendant did not mine King's Claim; and
b. The Defendant unlawfully mined King's Claim and continued to do so, even after he was made aware that he had unlawfully mine King's Claim.
As a result of the Defendant unlawfully and/or negligently mining King's Claim, the Plaintiff has suffered, or may suffer, loss and damage including but not limited to:
a. A loss of opal from King's Claim;
b. Expenses incurred in undertaking works in the mine area to stabilise the walls and roof of the mine area; and
c. Loss of opportunity to continue mining parts of King's Claim due to adverse safety conditions and instability of the drives and surrounding area arising as a direct result of the Defendant's actions.
The Plaintiff claims against the Defendant damages, costs and interest.”

19 The proceeding was heard on 19 August 2010 in the Local Court at Lightning Ridge because that was geographically convenient to the parties and their witnesses. The parties were self-represented at the hearing because their respective applications for legal aid were denied. Although I understand that the plaintiff did obtain some limited legal advice in the preparation of his claim.

20 The Court did not take a view of the site because I determined it would not assist me to resolve the issues because the boundaries between the claims had not been surveyed or reliably pegged out. In any event, the parties were content for me to rely on the oral and documentary evidence to determine the issues.

21 While the parties have not raised issue with my jurisdiction to hear and determine this matter I must be satisfied of that fact.

Jurisdiction

22 This is a civil proceeding within the Class 8 jurisdiction of the Land and Environment Court Act 1979: s21C (LEC Act).

23 The civil standard of proof applies and this means that I must be satisfied “on the balance of probabilities” that the evidence in the circumstances of this case supports a finding. Briginshaw v Briginshaw [1938] HCA 34;(1938) 60 CLR336 Latham CJ at p3 and 5.

24 The Civil Procedure Act 2005 (CPA) and UCPR govern civil proceedings in Class 8. While the rules of evidence apply in Class 8 proceedings, the Court may, by order, dispense with any requirements imposed by rules of Court if satisfied that it is appropriate in the circumstances of the case: s14 of the CPA; and s75 of the LEC Act. At the outset of the hearing the defendant Robert Der asked the Court if his father, the defendant Jozef Der, could speak for him at the hearing because they relied on the same evidence and submissions. In the circumstances, and because the parties were not legally represented, the Court allowed the defendant Jozef Der to speak on behalf of his son and himself. Despite that the defendant Robert Der remained in Court at the bar table for the duration of the hearing. The Court also allowed each party to file additional documentary evidence (including photographs) during the hearing subject to objection and the opportunity for cross-examination.

25 Schedule 2 of the Mining Regulation 2003 prescribes “opal” as a mineral for the purposes of the definition of “mineral ” in the Dictionary at the end of the Act.

26 To establish an entitlement to any “opal” found by the defendants in the King’s Claim the plaintiff must first establish a property right in any opal or opal dirt or earth mined by the defendants from the King’s Claim.

27 I have examine the Certificates of Renewal of a Mineral Claim; Mineral Claim Number 26008 and Mineral Claim Number 30592 (exhibit J) and accept that the plaintiff for the relevant period (and until 30 June 2011) holds a valid mineral claim over the area known as King’s Claim in these proceedings.

28 Based on the evidence (exhibit J) I find that the plaintiff can lawfully mine King’s Claim the subject of these proceedings. (S 219 of the Act allows me to rely on the certificate signed by the Mining Registrar as evidence of the plaintiff’s legal entitlement the claim area known as King’s Claim.)

29 Under s 195 (1) and (1A) of the Act the plaintiff has rights, subject to conditions, to carry out activities under his mineral claim and this extends to prospecting and to carry out any mining purpose.

30 Furthermore, S 11 of the Act gives the plaintiff a property right in minerals lawfully mined. It states:

“ 11 Property in minerals lawfully mine
(1) For the purposes of this or any other Act or law, it is declared that any mineral that is lawfully mined becomes the property of the person by or on behalf of whom it is mined at the time the material from which it is recovered is severed from the land from which it is mined.
(2) For the purposes of this or any other Act or law, it is declared that any mineral contained in:
(a) a stockpile of material that has been lawfully mined for the purpose of enabling the mineral to be recovered, or
(b) a pile of tailings arising from the recovery of a mineral from material that has been so mined, remains the property of the person by or on behalf of whom the material was mined and does not become part of the lan d on which it is situated.”

31 Accordingly, the evidence supports a finding that the plaintiff, at the time of the alleged mining by the defendants, was the holder of a valid Mineral Claim and by s 11(1) has a legal entitlement or a property right in any mineral he mines or was minded on his behalf within his mineral claim.

32 It is also clear, on the evidence before me, that the defendants at the relevant time had no legal entitlement or property right in any mineral mined from the King’s Claim because they were not authorised by the plaintiff or the Mining Registrar to mine the King’s Claim.

33 Part 15 s293 of the Act confers on the Land and Environment Court a broad jurisdiction to hear and determine proceedings. Having regard to the provisions of s293 I am satisfied that the Court has jurisdiction under subsections (e), (f), (p), (s) and (x) of the Act to hear and determine these proceedings.

34 Having established jurisdiction to hear and determine the proceedings I now consider my power to make the orders sought by the plaintiff. Relevant to this is the Court’s powers in s 298 of the Act it states:

“298 Court may order payment of money or delivery of mineral
(1) If any money or mineral is claimed in the Land and Environment Court, the Court may order the payment of such money or the delivery of such mineral as it may find to be due or deliverable by one party to another.
(2) If such a claim arises out of a mining partnership, adventure or interest, the Land and Environment Court may take accounts in respect of that partnership, adventure or interest, to the extent to which it may be necessary to ascertain what money or mineral (if any) is so due by one party to the other, and may make such further order as it considers just.
(3) If the Land and Environment Court orders payment of money in respect of any debt, damages, costs or otherwise, the Court may make a further order:
(a) that any mineral in the possession, and being the property, of the party directed to make the payment must (to the extent in value of the payment as estimated by the Court) be delivered up to the party entitled to the payment, and
(b) that the mineral to that extent be seized and delivered accordingly.
(4) If such a further order is made, the order for payment of money may only be enforced in respect of any balance remaining due after deducting the value of the mineral so delivered to the party entitled to payment.”

35 The plaintiff’s amended summons claims damages plus interest and costs for a breach of the Act. I am satisfied that I have power to grant the relief sought under s298 of the Act if I am satisfied on the evidence that it is just to do so in the circumstances of the case.

36 The plaintiff relies on the following evidence:

1. Affidavit of James Hereford-Ashley sworn on 28 May 2010.
2. Affidavit of Frank King sworn on 26 July 2010 and the submission dated 27 July 2020.
3. Affidavit of David Page sworn on 26 June 2010.
4. Affidavit of Wayne Buchanan sworn on 2 July 2010.
5. Affidavit of Daniela L’Abbate sworn 9 August 2010.

37 The defendants jointly relied on the following evidence:

1. Affidavits of Robert and Jozef Der sworn on 8 July 2010 and 3 August 2010.

How much opal bearing rock and earth did the defendants remove?

38 According to the plaintiff’s affidavit evidence sworn on 2 July 2010 (which is exhibit C) he first became aware that the defendants had “penetrated” his claim from their adjoining claim in or about late October 2009. Mr Buchanan, another miner, corroborated the plaintiff’s evidence on this issue. Consistent with his affidavit evidence at the hearing, Mr Buchanan said that he had accompanied the plaintiff to the site in October 2009 and observed the defendants working near a “red nobby” which was within the King's Claim (paragraph 5 exhibit C).

39 Furthermore, he said that he heard the plaintiff tell the defendants that the “red nobby” area where they were working was within the King’s Claim. On hearing this the defendants, according to the evidence of Mr Buchanan, said that they were going on holidays because of the heat and would cease working their claim.

40 Some time later, in May 2010, the plaintiff was told that the defendants had complained to the Mining Registrar about his breaching of the border of the Der’s Claim. According to the evidence, the Mining Registrar Mr Hereford–Ashley and Mr Babic (a Mining Safety Officer) carried out an inspection of the Claims on or about 4 May 2010. In Court the Mining Registrar told me, consistent with his affidavit evidence, that his inspection confirmed the fact that the breach had occurred from the Der's Claim into the King Claim. The Mining Registrar states at paragraph 4 of his affidavit exhibit A:

4.”In the company of MSO Babic I conducted a basic survey of the underground mine workings using a compass and tape. It was evident that the drive of mineral claim 30592 had extended into mineral claim 26008.

5. On the surface of the claim MSO Babic and I reproduced the underground Workings using a compass and tape referring to 3 points of reference to identify the location, of the break through of the drive. It was evident that the drive was extending approximately 4.5 metres into mineral claim 26008.
6. At this point Mr Jozef Der was arguing with the results of our survey as he stepped out what he believed to be the extent of the workings with two metal wires in his hands. I indicated to Mr Der that it was in fact he [who] had extended the workings of mineral claim 30592 not mineral claim 26008 .
7. It was apparent by Mr Der’s body language and expression that he was aware of his error. He then said words to the effect “Don’t worry about it I will sort out with the other claim.
8. I stated that if he had a dispute he was to seek independent legal advice and contact the Land & Environment Court.”

41 Shortly thereafter, on or about 17 May 2010, the plaintiff (again in the company of Mr Buchanan) informed the Mining Register that he had found:

“ (a) that further mining of my claim had been undertaken from the adjoining claim 30592 in the same area where I had found the defendants had penetrated my claim in October 2009; (b) The further mining had broken through the wall into my drive (where I had most recently been working); and (c) a lot of opal dirt had been removed”(Para 9 exhibit C).

42 According to the evidence, at the inspection on 17 May 2010, Mr Buchanan and the second defendant (Jozef Der Senior) took agreed compass readings of the border and went underground with a laser light to show the boundary underground.

43 According to Mr Buchanan, the measurements he took with the plaintiff demonstrated that the defendants were working on the King’s Claim. According to the plaintiff, and Mr Buchanan, at this time the “red nobby’ seen in the previous October 2009 inspection had been removed from the King’s Claim allegedly by the defendants.

44 The plaintiff’s evidence is that after a dispute with the defendants on site about the measurements he reported the matter again to the Mining Registrar.

45 This is consistent with the Mining Registrar’s evidence that on 19 May 2010, Mr King approached him about the continued removal of material from his claim and he said to the Plaintiff: “I inspected the site on 4 May 2010 and was certain that Mr Der knew the boundaries of the claims. I provided Mr King with the contact numbers for the Land and Environment Court and directed him to the Lightning Ridge Police if he was of the belief that theft of mineral had occurred.”

46 In accord with the Mining Registrar’s evidence, the plaintiff acted on his advice and did obtain from the Land and Environment Court an ex parte interlocutory injunction pursuant to s296 of the Act on 28 May 2010 and a final injunction pursuant s295 on 4 June 2010 as detailed above at paragraphs [5]-[9].

47 According to the plaintiff’s affidavit evidence, he inspected the King’s Claim again on 23 May 2010 (this time in the company of Mr Page who has surveying qualifications). At para 18 of exhibit F the plaintiff states;

“(a) The breach into my drive had been enlarged and gouging had taken place in my drive;
(b) Approximately 148 cubic metres of opal bearing rock and earth had been removed from that area of my claim mined by Jozef and Robert Der;
(c) The area of opal bearing rock and earth mined and removed by the Ders had similar characteristics (including distinct red sandstone bands and carry bands in between) to the opal –bearing rock and earth I had most recently mined and removed from my drive. In effect, we had each mined the opposite side of a “pillar’ (‘the Red Pillar”) and the Ders had mined right through the Red pillar into my drive on the other side of the Red pillar; and
(d) The area of rock which included the red nobby I had pointed out to the Ders in October 2009, and which he had previously said had not cut had been removed.”

48 It is the plaintiff’s evidence that the area called the “Red Pillar” is within his claim and is an area where he has found and retrieved opal rocks. He believes that the defendants have taken opal rock from that area and he wants to be compensated. Furthermore, his evidence is that a volume of opal bearing rock and earth (about 50 –60 cubic metres) with the same characteristics as the nearby rock and earth from which he has already mined opals remains but is not safely accessible.

49 His evidence is that as a result of the mining by the defendants around that “Red Pillar” the area is now “quite unstable and unsafe to mine any further". According to the plaintiff, the defendants did not mine the area safely because they did not “prop” the area to prevent the drive collapsing.

50 The plaintiff’s evidence is that he cannot safely mine the area without spending money, time and effort to make it safe. He submits that the cost of stabilisation is $4,120.00 as detailed in exhibit F.

51 According to the Mining Registrar’s evidence, his inspection and survey of the site on 4 May 2010 found that the defendants had extended the workings of claim 30592 into mineral claim 26008 by approximately 4.5 metres. Mr Babic who accompanied the Mining Registrar on 4 May 2010 and assisted in the survey measurements corroborated this evidence.

52 The affidavit evidence states that at the time of the inspection the defendant Jozef Der disputed the measurements but said to the Mining Registrar: “Don’t worry about it I will sort it out with the other claim holder.”

53 But this did not happen. Instead the next day, 19 May 2010, the evidence records that the defendants continued to mine the plaintiff’s claim. After again reporting it to the Mining Registrar the plaintiff followed the advice of the Mining Registrar and approached the Lightning Ridge police and the Court for an urgent interlocutory injunction to restraint the defendants, which was granted.

54 Mr Buchanan’s affidavit dated 2 July 2010 and oral evidence also corroborates the plaintiff and Mining Registrar’s evidence about the measurements taken onsite on 4 May 2010.

55 Mr Page’s oral evidence at the hearing, consistent with his affidavit evidence sworn on 27 June 2010, was that he had last inspected the site on 9 June 2010 in the company of the plaintiff, Mr Buchanan and the Mining Registrar for the purpose of measuring the boundary underground to determine “whether mining across the border had been done.” He found on inspection that:

“On 9 June 2010 in the company of Mr Frank King, Mr Wayne Buchanan and the Lightning Ridge Mining Registrar. …Before entering the claim, the surface boundary of mineral claim no 30592 was defined and determine by Mr Jozef Der and myself. The measurement of 4.7m from the edge of his 3FT access hole to the claim boundary in dispute.

Myself Mr Wayne Buchanan, the mining registrar, Mr Jozef Der and Mr Robert Der entered the claim. Underground there was limited light supplied. The measurement of 4.7mts from the edge to the access hole to the starting point for measuring was determine to by Mr Jozef Der.

With help from Mr Wayne Buchanan the 110 degree compass bearing was determine from the starting point to a point 23metres down the drive. Plus another drive approx 6mts long. Makers were placed in the claim roof to determine the border from which measurements were taken towards Mr Frank Kings claim to determine the distance mining had proceeded across the boundary.

Photographs were also taken to show the area concerned.

From the measurement taken and information given I estimate approx 148 cubic metres of opal dirt has been removed from Mr Frank King’s claim.”

56 Mr Page confirmed in his oral evidence that the defendant Jozef Der was present during the taking of the abovementioned measurements.

57 Mr Page’s evidence is that the measurements taken on that occasion confirmed approximately 148 cubic metres of opal dirt had been removed from the King’s Claim. In Court he explained to me his hand drawn survey map showing the boundaries of the claims and the extent of the breach and his photographs of the area.

Der evidence about the extent of the breach

58 The defendants rely on their joint affidavits sworn on dated 8 July 2010 and 3 August 2010 and a series of photographs of the Claims. That evidence includes an admission that they did mine into the King’s Claim from the Der’s Claim by about three feet. Their affidavit of 3 August 2010 states, “ …we had entered the King Claim but not as much as he says…the plaintiff’s claim for compensation is ridiculous.”

59 Despite their admission, they also submitted that the plaintiff, who uses machinery to mine, also mined their claim. In support of this they relied on several photographs, which it was explained, showed the mine wall in the Der’s Claim with mechanical scrape marking caused by the plaintiff’s mechanical digger. The defendants gave oral evidence that they are “hobby miners” who only use hand held digging tools. In fact during the hearing the defendant Jozef Der advised me that he does the digging and his son the other defendant carries the dirt by wheelbarrow.

60 The defendants submit that because they mine manually they could not have removed 148 cubic metres as claimed. They told me that their truck holds 4 cubic metres and the removal of 148 cubic metres would take 37 truck trips over a very long period of time.

61 It is the defendants’ position they breached the boundary and entered an existing dug out ballroom but that they did not mine that area of the ballroom. Their affidavit evidence is:

“Robert and I were working next to the border that joins our claim and Frank King’s claim, whilst working we connected to a tunnel we redirected back along the border and continued working. We moved about 3 metres along the border and once again we connected into another tunnel.
Both of these tunnels have crossed over the border into our claim. For the third time we (once again) moved along the border and again we connected to another tunnel, at this point we had stopped work and approached the mining department and we asked the mines inspector to come out and to inspect the claims as something was not right.
On the 4 ^th of May myself and Robert, the mining inspector and Mr Babic has gone out to measure and determine the boundary of our adjoining claims underground, upon doing this I overheard the inspector and Mr Babic saying to each other that I and crossed the border by 2 and a half 3 feet. After the inspection on 4 May 20210 when I informed that we and entered into Frank King’s claim and to stop work.
Both Robert and I do not agree with the measurements made so we remeasured and had come up with a different reading and difference degrees so we then went back to the mining department to inform the mining inspector.
His response was to this new reading that he had no more time to waste on this matter and that we could continue to work along side the border.
After working for approximately two weeks I had received a phone call from the police department saying that they had been contacted by Frank King and that I have been unlawfully mining my claim (after we had permission from the mining inspector) and that we had to stop work immediately as Mr King had imposed a injunction order.
Both Robert and I believe that Frank King had entered into our claim on the two previous occasions and strongly believe that this border had also been removed by Frank King as stated in his defence that he has in fact been working at or around the tunnel in question.”

62 As I noted earlier the defendants tendered a number of photographs of the site and invited me to accept that the scrap marks on the walls where caused by the plaintiff's machinery in the Der’s Claim.

63 I note at this point that the plaintiff denies making the scrap marks on the walls.

64 The defendants’ only witness in the case was Mr Harding, who happened to be the ex mining partner of the plaintiff’s for the King’s Claim. Mr Harding told me that there was no good opal left in the King’s Claim because the best of it had been mined earlier during their partnership. Mr Harding told me that he had told the defendants to mine the boarder of their claim where it joins the King’s Claim but in a different location to the area in these proceedings.

65 While it was apparent that there was no “love loss” between Mr Harding and the plaintiff in the end his evidence was of no real assistance to the defendants on the issue of the extent of the breach. On the contrary it supported the fact that the King’s Claim had in the past generated some good colour opal. In fact, during the hearing Mr Harding produced a photograph from his pocket of a 2.5 ct good colour opal, which it was agreed, was mined from the King’s Claim. Upon exclaiming:” Did he tell you about this one?” the plaintiff answered from the bar table words to the effect: “ Oh I have got a better shot than that ” and he then reached into his pocket and produced a second photograph of the same opal that is exhibit P. It was subsequently confirmed that exhibit P had been valued by the gemmologist Ms L’ Abbate and valued at approximately $2500.

66 Ultimately, Mr Harding’s evidence only added support to the plaintiff’s claim that the King’s Claim had produced several good colour opals during their partnership. His evidence weighed in favour of the probability that the defendants would have found some opal in the material they took from the King’s Claim.

Finding on the extent of the breach

67 The defendants have admitted to mining the King’s Claim without authorisation.

68 This is a breach of the Act.

69 They submit they only worked about 3 feet into the King’s Claim but based on the objective evidence of the plaintiff I cannot accept the defendant’s evidence.

70 The defendants did not produce any independent evidence in support of their breach of the boundary into the King’s Claim. Nor did they demonstrate to me how they measured any breach. It appears, based on the evidence before me, that they simply “guessed” the area of the breach.

71 The defendants unsupported and often-vague evidence must be weighed against the significant amount of objective and consistent evidence of the plaintiff and his witnesses including the Mining Registrar and the MSO.

72 Having regard to all of the evidence, I accept the evidence of the plaintiff’s independent witnesses and find that the defendants did mine to extend the workings of Mineral Claim 30592 into Mineral Claim 26008 by approximately 4.5 metres and remove approximately 148 cubic metres of opal dirt and earth.

73 I found the objective and detailed evidence of the Mining Registrar and Mr Babic (MSO) who inspected and surveyed the site on at least two occasions reliable and persuasive. Relevantly, their evidence was consistent with that of the plaintiff and Mr Buchanan and Mr Page. Their reliance on contemporaneous notes taken at the time of the various inspections of the site and conversations with the parties, which they referred to whist giving oral evidence, reinforced the accuracy of their survey measurements and truthfulness of their record of events.

74 The evidence of Mr Buchanan and Mr Page (a qualified surveyor) who assisted the plaintiff on 23 May 2010 to measure the extent of the breach, confirmed that the breach resulted in the removal of 148 cubic metres of material from the King’s Claim.

75 I accept that King’s Claim has been mined over the years by various claim holders who have dug out existing ballrooms in the vicinity of the area in dispute. Mr Babic gave evidence that he had in fact mined the King’s Claim (before he became a MSO) and recalled seeing existing ballrooms in the claim area. However, I do not accept the defendant’s version of events that they simply entered an existing ballroom because it is not corroborated by any other witness.

76 As previously noted Mr Harding's evidence did not assist the defendants' case on this issue. He was not been present at any site inspection and gave no reliable evidence about the extent of the breach. Furthermore, it must be noted that the objectivity of his evidence must be called into question because he is the ex partner of the plaintiff.

77 In coming to a decision on this issue I accept and rely heavily upon the independent evidence from the Mining Registrar and Mr Babic (MSO) who support the plaintiff’s claim on this issue about the extent of the breach. I find the plaintiff to be a truthful witness who has gone to a lot of trouble to investigate the facts and present objective reliable evidence of the extent of the breach in these proceedings.

78 While I appreciate that the defendants mined with hand tools and that it would have taken several weeks, if not months, to mine by hand and remove 148 cubic metres of material there is no evidence before me of the date when they started to mine in the King’s Claim. The plaintiff discovered their mining in the King’s Claim in October 2009, but according to the evidence, which Ms L'Abbate corroborated, the plaintiff had ceased mining in King’s Claim in early 2009. Therefore, it is probable on the evidence that the defendants commenced mining King’s Claim well before October 2009 and could have removed 148 cubic metres of material. It is also feasible that other miners could have assisted them remove the material.

79 The plaintiff’s reliance on survey data to establish the extent of the breach and the independent and consistent evidence of the witnesses on balance must be preferred to that of the defendants.

80 Based on the above, I find that the defendants have mined into the King’s Claim and removed 148 cubic metres opal dirt and earth from an area known as the “Red Pillar”. I also accept the evidence of the plaintiff that the “Red Pillar” area contained opals of value and that there remains an area within the King’s Claim, of about 50-60 cubic metres, which is not safely accessible because of the unsafe mining by the defendants.

How much opal was removed and what is it worth?

81 The plaintiff claims that the opal dirt removed by the defendants contained opals and he calculates as detailed in exhibit F that from 2008 until April 2009 he mined opal and rub from the "Red Pillar" area in King’s Claim and valued at $36,393.60.

82 On that basis the plaintiff calculates that the value per cubic metre is $379.10.

83 The plaintiff explained to me that he came to this $ cubic metre value by dividing $36,393.60 by 96 cubic metres which is the amount of opal dirt he removed from King’s Claim . Therefore, he calculates that the defendants who removed 190 cubic metres of opal dirt (148 from the Red Pillar and the 50-60 cubic metres which remains but is not accessible) multiplied by $379.10 calculate to an amount of compensation in the amount of $72,029.00.

84 Despite the above, the plaintiff honestly acknowledges that the assessment of how much opal and its value was in the material removed by the defendants is a very difficult task to calculate. He also told me, as did Ms L’ Abbate, that it is currently difficult to sell opal locally and the price is low.

85 Despite the difficulty of assessing the amount of opal and value of the opal in the material taken by the defendants the evidence of Mr Harding and Ms L’Abbate is that the King’s Claim has produced some good size and colour opal.

86 Ms L’Abbate who is a qualified gemmologist, and former member of the Lightning Ridge Pricing Board (2002-2006) and opal carver and cutter told me that she first cut opal for the plaintiff in 2007 and has provided that service to him until 2009. According to her evidence, the plaintiff often spoke of the “very promising” opal rough retrieved from the Ken’s Retreat claim.

87 According to her oral evidence she assisted the plaintiff value the opal detailed in exhibit F. She recalled the end of the plaintiff’s partnership with Mr Harding and at that time helped the plaintiff value the assets of the partnership. Her evidence is that she cut two particular stones in 2009 from King’s Claim that were sold on consignment to the owner of Down to Earth Opals and on sold in America for a value of $4,600. She explained to me that her method of valuation was consistent with the certified valuations made by the Lightning Ridge Pricing Board.

88 It is her opinion that the opal dirt removed from King’s Claim that she examined contained opal of “considerable worth”.

89 The defendants’ evidence is the plaintiff’s compensation claim for damages is “ridiculous” and it was submitted that the defendants have no assets and are both pensioners and hobby miners with no money who live in a caravan.

Finding - the value of the opal

90 Based on the affidavit and oral evidence of Ms L’Abbate, the qualified gemmologist, I accept that the value of the opal taken from the King Claim, as detailed in exhibit F, in the fourteen-month period from January 2008 to April 2009 based on the plaintiff’s calculation has a value of $372.10 per cubic metre.

91 The defendant does not produce any evidence to discredit Ms L’ Abbate’s evidence in exhibit F about the value of the opals found in King’s Claim for that period. Therefore, I accept that evidence.

92 Furthermore, Mr Harding’s evidence confirmed that the King’s Claim did yield at least two sizeable and good colour opal (one of which was shown in exhibit P). He agreed that each was about 2.5 carat and valued at about $2500.

93 Mr Harding conceded that he retrieved opal from King’s Claim and that opal was sold and he made money from such sales. He agreed that at the termination of his partnership with the plaintiff there was a monetary payout to him that split the partnership assets. Therefore, it was to some extent a profitable opal mineral claim.

94 Accepting that the evidence supports a finding that the defendants would have removed some opal from the material they removed from King’s Claim, I must now assess how much they retrieved and its monetary value in circumstances where the material can no longer be identified. As Mr Harding said “opal is like rain” and it is nearly impossible to know where it is to be found.

95 However, it is clear on the evidence that not all of the 148 cubic metres of material removed by the defendants would have contained opal.

96 Therefore, a simple multiplication of the area of material removed by the cubic meter value of $372.10, as calculated by the plaintiff, is a distortion of the amount of opal taken by the defendants. It is not “just” or accurate, in my opinion, to assess that the defendant in removing 148 cubic metres of material should have received opal to the value of $52,094 as claimed by the defendants.

97 Based on the evidence of Ms L’Abbate over 2 years the plaintiff retrieved opal from 97 cubic metres of material that she valued at $36,393.60.

98 The Act empowers me to assess the value of the opal and make an award of damages or order recovery of a debt that is “just’. No other criteria for such assessment are provided in the Act.

99 Therefore, based on that evidence I think it is probable and “just” in the circumstances to assess that the defendants retrieved opal from the material taken from the King’s Claim to a value of $10,000. I base this assessment on the evidence of Mr Harding and Ms L’Abbate which is that the King’s Claim had and has opal of value particularly in the “Red Pillar” where Mr Harding told the defendants to mine.

100 In coming to this amount I have considered the terms of s 298 of the Act, which empowers me to make orders in respect of the payment of money. I note there is no claim or evidence of the opportunity for the delivery of any mineral to offset such payment in this proceeding.

101 While I am satisfied on the evidence that it is a “just” result if I order the defendant’s collectively to pay the plaintiff damages in the amount of $10,000 (inclusive of interest) for the lost opal I am not prepared, based on the evidence, to order any payment for the 50 to 60 cubic metres which the plaintiff submits is unable to be mined because of the defendants' actions. It is clear that the area can be worked if it is made stable. I deal with this issue later in my judgement.

Did the defendants destabilise the area?

102 The defendants have admitted to mining at least 3 feet of the King Claim. Mr Buchanan saw them in the King Claim area and the evidence of the Mining Registrar and Mr Babic and Mr Page is that they mined an area of 148 cubic metres.

103 The defendants told me that they don’t use machines when they mine instead they mine by hand tools and that they have not caused the King’s Claim to be destabilised.

104 The plaintiff’s evidence is that the walls and roof have collapsed because the defendants did not safely mine the area. Specifically, they did not use “props” to support the walls and roof of the mine and as a result the drive has partially collapsed.

105 The defendants did not produce any evidence to refute this claim they only denied it.

Finding

106 Based on the evidence, I find that the defendants did destabilise the mine area in the King’s Claim because they did not mine safely and “prop” the walls or roof.

107 As a consequence, I accept the evidence of the plaintiff that the walls and roof have partially collapsed and the area is unsafe to mine. The evidence of Mr Buchanan confirms that the King’s Claim is currently unstable in the area mined by the defendants. I also accept the plaintiff ‘s evidence that because the area is partially collapsed he cannot safely enter to mine the remaining 50 to 60 cubic metres in the “Red Pillar” area.

108 I accept the evidence of the plaintiff that he needs to expend $4120 (as particularised in exhibit F) to stabilise the mine area before he can gain access to mine the remaining 50 to 60 cubic metres in the King’s Claim. The defendants have not challenged the cost of the works submitted by the plaintiff. Therefore, I have no other evidence of the cost of the stabilisation works to the area.

109 Section 298(2) of the Act empowers me to make such further orders as I consider being just. On that basis I think it is just to require the defendants to pay an amount of $4120 to the plaintiff so that the stabilisation works can be carried out to enable the plaintiff to mine the 50 to 60 cubic metres which is not able to be accessed whilst the area unstable.

110 Having considered all of the oral and written evidence including the photographs, sketches and maps I am satisfied on the evidence that the plaintiff has made out his claim for the reasons detailed above. I make the following findings:

1. that the defendants did remove approximately 148 cubic metres of opal bearing rock and earth from the plaintiff’s mineral claim;
2. that the opal bearing rock and earth did contain some valuable opal;
3. that the defendants’ removal of opal bearing rock and earth from the plaintiff’s claim did destabilise the mine area;
4. that the plaintiff needs to pay a sum of $4120.00 to undertake works in the mine area to stabilise the walls and roof of the mine area;
5. that the plaintiff has lost opportunity to mine an un-coverable pillar of some 50 cubic metres but only until such time as the stabilisation works referred to above are carried out.

111 Accordingly, I order under s 298 of the Act:

1. that each defendant pays the plaintiff monetary compensation for the opal removed in the amount of five thousand ($5000), inclusive of interest, within 28 days of the date of this order;
2. that each defendant pays the plaintiff the sum of $2,060.00 toward the cost of the work to stabilise the mine area in King’s Claim within 28 days of the date of this order;
3. that the injunction ordered on 16 July 2010 restraining the defendants from working the Mineral Claim 30592 is discharged. (However, I note that I was advised in the hearing that the Mineral Claim held by the defendant Robert Der expired on 30 August 2010 and that an application for renewal of that Mineral Claim is pending).

Costs

112 The only remaining issue is the plaintiff’s claim for costs of the proceedings.

113 The power of this Court to award costs is founded in s98 of the CPA and s298 of the Act.

114 The discretion to award cost is wide and tempered only by the requirement that such order be “just”in the circumstances of the case.

115 Having been successful in his claim, I consider it is “just” to order the defendants to pay any legal costs and or disbursements incurred by the plaintiff in relation to the injunction application and these substantive proceedings. Such costs would include any application fee paid for the filing of the summons; and, the issue of any subpoena; and, any legal fees paid in respect of any advice or the preparation of the pleadings for the case. Because the plaintiff has not quantified his legal costs and disbursements it is appropriate that such quantification be made and communicated to the defendants within seven days of the date of this judgment. In the event that no agreement is reached in respect of the amount of the costs then the proceedings are to be re listed before me for a hearing on the telephone to resolve the issue about the quantification of the costs.

________________________
Commissioner of the Court
Susan Dixon

24/09/2010	-	Typographical - Paragraph(s) Para 81 amendment "valued at"
28/09/2010	-	Typographical - Paragraph(s) Paragraph 109 amendment "298" Paragraph 111 amendment "298" Paragraph 114 amendment "298"