Lightning Ridge Miners' Association Limited v Hall; Lightning Ridge Miners' Association Limited v Hall; O'Brien v Newton

[2016] NSWLEC 1636

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Lightning Ridge Miners' Association Limited v Hall; Lightning Ridge Miners' Association Limited v Hall; O’Brien v Newton [2016] NSWLEC 1636

Hearing dates:

16, 17, 18 and 28 August 2016; 8 and 14 December 2016

Date of orders:

10 February 2017

Decision date:

23 December 2016

Jurisdiction:

Class 8

Before:

Dixon C

Decision:

See Directions for ‘Allawah’ (2016/00166691) at [215]
See Orders for ‘Sorrento’ (2016/00166705) at [216]
See Orders for ‘Malabar’ (2016/00151825) at [217]

Catchwords:

MINING – access management plan for small – scale titles for land in Lightning Ridge – MINING ACT 1992 – Part 10 A – s236D –requirement for public liability insurance – vehicle registration – miners’ hours of access to title

Legislation Cited:

Civil Liability Act 2002

 

Evidence Act 1995

 

Interpretation Act 1987 (NSW)

 

Mining Act 1992

 

Mining Amendment (Small –Scale Title Compensation) Act 2014

 

Roads Act 1993

 

Road Transport Act 1913

 

Road Transport Act 2013

 

Road Transport (Vehicle Registration) Regulation 2007

 

Western Lands Act 1901

 

Work Health and Safety Act 2011

  Work Health and Safety (Mines and Patrol Unit Sites) Act 2013

Cases Cited:

Anthony Lagoon Station Pty Limited v Aboriginal Land Commission (Maurice) (1987) 74 SLR 77

 

Army v Danziel (1944) 68 CLR 261

 

Bull v The Attorney General (NSW) 1913 17 CLR 370

 

Certain Lloyd's Underwriters v Cross [2012] HCA 56 248 CLR 378

 

Clunies–Ross v The Commonwealth (1984) 155 CLR 193

 

Coco v R (1994) 179 CLR 427

 

Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55

 

Durham Holdings Pty Limited v New South Wales (99) 47 NSW LR 340

 

Electrolux Home Products Pty Limited v Australian Workers’ Union (2004) 221 CLR 309

 

Friends of Mallacoota Inc v Minister of Planning and Minister for Environment and Climate Change (2010) VSC 222

 

Gifford v Strange Patrick Stevedoring (2003) 214 CLR 269

 

Hall v O'Brien [2015] NSWLEC 200

 

IW v City of Perth (1997) 191 CLR 1

 

Lee v New South Wales Crime Commission (2013) HCA 39

 

Malika Holdings Pty Ltd v Stretton (2001) HCA 14

 

Makita Holdings v Streeton (2001) 204 CLR 290

 

Minister of State for the Army and Dalziel (1944) 68 CLR 261

 

New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303

   

O’Brien v Slack-Smith Hall; O’Brien v Hall; O’Brien v Hall [2015] NSWLEC 1179

 

O’Brien v Slack-Smith (No 2); O’Brien v Hall (No 2); O’Brien v Hall (No 2) [2015] NSWLEC 1271

 

Parkins v LRMA, 75 NSWLR 427

 

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355

 

R and R Fazzolari Pty Limited v Parramatta City Council (2009) 237 CLR 603

 

Smith Kline and French Laboratories (Australia) Limited v Secretary, Department of Community Service and Help (1990) 95 ALR 97

Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30

Category:

Principal judgment

Parties:

Lightning Ridge Miners' Association Limited (Plaintiff of 2016/00166705 and 2016/00166691)

 

Roderick Allan Hall (First Defendant of 2016/00166705 and 2016/00166691)

 

Helen Anne Hall (Second Defendant of 2016/00166705 and 2016/00166691)

 

Maxine Anne O’Brien (Plaintiff of 2016/00151825)

  Wayne Stuart Newton (Defendant of 2016/00151825)

Representation:

Counsel:
Dominic J Williams (Plaintiff)
Ian Coleman SC (Defendant)

  Solicitors:
Moore & Co Solicitors (Plaintiff)
Waring Legal (Defendants)

File Number(s):

2016/001667052016/001666912016/00191825

Judgment

Introduction

Western Lands Lease area 2928

Transcript of the hearing at the Lightning Ridge Courthouse

Further evidence by the plaintiff

Further evidence by the defendants

Overview of the defendants’ case

Relevant principles of statutory interpretation

Overview of the plaintiff’s case

General principles of statutory interpretation to be applied

The Evidence

The defendants’ objections to the plaintiff’s evidence

Defendant’s objection to Ms O’Brien’s evidence

Ruling on the objections to Ms O’ Brien’s evidence on the financial impact and registration, licencing on the opal mining industry in Lightning Ridge

The miners’ evidence

The miners’ evidence as being representative of a broader cross section of opal miners

Gareth Middleton

Jeremy Lomax

James Haverhoek

Timothy Jenner

Gary Griffith

Findings: Miners’ evidence

Evidence of Anthony Chrisis, engineer/ racing car driver

Evidence of Alistair Rayner- agricultural consultant

Mrs Hall’s evidence

Mrs Hall - Hours of access

Mrs Hall - Public liability insurance

Bogged front loader adjacent to the Castlereagh Highway

Mr Hall’s evidence

Issue (a) - Public liability insurance

Ms O’Brien evidence - public liability insurance

Findings: Issue (a) – public liability insurance

Issues (b) & (c) – Registration, compulsory insurance of motor vehicles, licences

Findings: Issues (b) & (c) – Registration, compulsory insurance of motor vehicles, licences

Issue (d) - Hours of access

Findings: Issue (d) - hours of access

Fears and beliefs

CONCLUSION

Directions for ‘Allawah’

The Court orders:

Judgment

Introduction

1. These proceedings have been remitted to me for the determination of the following issues:

1. whether the holders of small-scale titles (SST holders) pursuant as part 10 A of the Mining Act 1992 (the Mining Act) must maintain public liability insurance with respect to their activities on access routes created by an Access Management Plan (AMP) made pursuant to the Act;

2. whether SST holders must maintain registration and compulsory insurance of motor vehicles driven or operated by or on their behalf on access routes created by an AMP;

3. whether motor vehicles driven or operated by or on behalf of SST holders on access routes created by an AMP must only be driven or operated by persons holding licenses entitling them to drive or operate those vehicles or class of vehicles;

4. whether the hours of access prescribed by clause 45(8)(c) of the regulations made pursuant to the Act (Regulation 45(8)(c)) should be varied.

2. The defendants’ final position, with respect to the above-mentioned issues, is summarised at paragraph [3] of its Written Outline of Submissions (DWS) dated 25 August 2016, namely:

a.    relief should be granted in the terms sought by the defendants with respect to the issues (a) to (d) identified above;

b.    without resiling from their primary contention, if relief in the terms sought by the defendants with respect to issue (a) identified above is granted, the relief sought by the defendants with respect to issues (b) and (c) identified becomes otiose. Similarly, if relief in the terms sought by the defendants with respect to issues (b) and (c) is granted, the scope of the relief sought with respect to issue (a) becomes limited;

c.    relief with respect to issue (d) identified above should be refused, on the basis that the plaintiff cannot discharge the onus of proof born by her, or, if the Court does not accept that the plaintiff bear such an onus, the Court cannot be satisfied on the balance of probabilities that the evidence establishes that such relief should be granted.

3. On 19 February 2016, I rejected a submission by the defendants that this remitter was a hearing de novo as this was clearly not the outcome of the s56A appeal: Hall v O'Brien [2015] NSWLEC 200 Preston CJ. Accordingly, the hearing proceeded on the basis that the evidence given on 16 and 17 December 2014 was to stand and be supplemented by the further affidavit evidence of the parties on the issues remitted for redetermination. To that end, directions were made with the consent of both parties for the filing and service of additional evidence with respect to the identified issues.

4. It was also agreed between the parties that the four remitted issues were relevant to the proceedings appeal 2016/151825 commenced by the Lightning Ridge Miners’ Association (LRMA) in respect of the determination of an AMP for the property ‘Malabar’ - held under a Western land leasehold by Wayne Stewart Newton (the Newton appeal); and therefore, that appeal should be heard with the remitted proceedings in respect of the 4 issues only : O’Brien v Slack-Smith Hall; O’Brien v Hall; O’Brien v Hall [2015] NSWLEC 1179 (the May judgment); and O’Brien v Slack-Smith (No 2); O’Brien v Hall (No 2); O’Brien v Hall (No 2) [2015] NSWLEC 1271 (the July judgment). In respect of this it was further agreed, (and I so ordered) that the evidence with respect to the four issues; public liability insurance, licensing, registration and hours of access is evidence in all proceedings. The remaining issues in the Newton appeal - which is a hearing de novo – are dealt with in a separate judgment.

Western Lands Lease area 2928

5. Before I attend to the determination required by addressing the evidence, making findings and giving reasons for findings in relation to each of the matters identified by the Chief Judge as requiring determination, I need to address firstly a change of circumstance that has arisen since reserving my decision on 28 August 2916, which on one view may go to my jurisdiction to make final orders in the ‘Allawah’ appeal. It concerns the surrender of Lot 1021/DP762143 by Mr and Mrs Hall to the NSW Government as part of a voluntary Surrender Scheme. That said, they retain ownership of lot 2466/DP764429 which harbours OPB 30 (OPB borders DP1062072 and DP762664 and runs between Lots 1021 and 2466). An agreement was entered into, with ongoing negotiations occurring up until signing of surrender/transfer documents on 18 October, with settlement on 19 October 2016. The surrender of the Lot 1021 has settled, however, the registration of the ownership of the Lot has not been completed. Whilst the copy of the Government Gazette provided by the plaintiff provides that Lot 1021 has been categorised as a Reserve for a Public Purpose, there is no evidence to suggest that the Government will not require or could not require an AMP for land contained within the Reserve. The reserve remains an Access Management Area for the purposes of s236B of the Mining Act 1992 and may, subject to any application by the Minster pursuant to s139 of the Crown Land s Act 1989 remain an Access Management Area with specific conditions and regulations applying to it as determined from time to time, including those as to appropriate uses.

6. Mr and Mrs Hall have entered into a licence with the NSW Government, being the new proprietors of the Lot 1021, allowing them to graze their cattle and otherwise use the land in lot 1021 pursuant to the Licence. This includes the use of watering points and tracks that already exist within Lot 1021 for the period commencing on 19 October 2016.

7. On 14 December after correspondence and discussions about this matter it was agreed that the Court would proceed to determine finally the remitted issues and make final orders in the proceedings by determining the AMP with the surrendered land included; and it was also determined in the alternative an AMP in identical terms save as to the identification of the land to which it applies with the surrendered Lot 1021 would be excised. This course was deemed appropriate by the parties’ counsel.

8. Accordingly, this judgment relates to the remitted issues in relation to the defendants’ properties ‘Allawah’ and ‘Sorrento’, and the separate appeal in relation to ‘Malabar’.

Transcript of the hearing at the Lightning Ridge Courthouse

9. The Court received a copy of the verified transcript of the hearing held in Lightning Ridge on 17 November 2016. It was incomplete as some of the oral evidence of the witnesses was unable to be recorded due to technical difficulties with the operation of the equipment. Despite that, after review, I am satisfied that I have an accurate record of all of the evidence taking into account my contemporaneous notes and the other evidence before the Court. I communicated this to the parties at the telephone mention on 5 December 2016, and told them that I intended to proceed to judgment on that basis unless they objected to that course. No objection was raised.

Further evidence by the plaintiff

10. In addition to the evidence given on 16 and 17 December 2014 and in 2016 contained in the transcript the plaintiff, relies on two further affidavits from Ms O’ Brien dated 6 April 2016 and 12 April and the evidence of six miners from Lightning Ridge. The plaintiff’s further affidavit evidence is listed at paragraph 6 of its written submissions dated 25 August 2016 (PWS), and was heard by the Court subject to some objections. For ease of reference the additional affidavits are listed below.

1. Affidavits of Maxine Anne O’ Brien dated 6 December 2016 – Exhibit AA and 12 April 2016

2. Affidavit of Timothy Graham Jenner dated 5 April 2016 – Exhibit FF

3. ‘Allawah’ map marked by Timothy Jenner showing track blocked by the defendants (Incorrectly stated in the record of Exhibits as marked by James Haverhoek ) Exhibit EE

4. Affidavit of Johann Sebastian Deisenberger dated 5 April 2016 – Exhibit CC (Excerpts from Sebastian’s log book and maintenance records attached as requested by me – Appendix A)

5. Affidavit of James Robert Ben Haverhoek dated 6 April 2016 – Exhibit DD

6. Affidavit of Jeremy Roderick Lomax dated 6 April 2016 – Exhibit GG

7. Affidavit of Garth Edward Middleton dated 12 April 2016 – Exhibit BB

8. Affidavit of Gary James Griffiths dated 15 August 2016 ( This relates to his version of the Newton Accident ) – Exhibit HH

Further evidence by the defendants

11. In addition to the evidence given on 16 and 17 December 2014 and in 2016 contained in the transcript of evidence and the affidavit of Ross Slack Smith dated 16 December 2014 (Exhibit 4) and all exhibits including the AMP in the agreed variations, the defendants rely on the following additional evidence which has been served on the plaintiff:

1. Affidavit of Helen Hall dated 14 March 2016

2. Affidavit of Roderick Allen Hall dated 14 March 2016

3. Affidavit of Alistair Rayner dated 15 March 2016

4. Affidavit of Anthony Chrisis dated 15 March 2016

5. Affidavit of Wayne Newton dated 29 October 2016

12. I will deal with the objections to the parties’ further evidence in due course, after I have set out an overview of their respective submissions about the relevant statutory provisions and the principles of statutory interpretation which should be applied in this case.

Overview of the defendants’ case

13. The meaning of s235C of the Mining Act is not controversial. The defendants’ submit that s235C of the Mining Act provides a legislative basis for SST holders to access their claims from a public road. And, while the section is the legislative foundation for SST holder’s access “rights”, the section does not, of itself, define those rights. The defendants accept that s236D facilitates access by SST holders pursuant to s235C by prescribing the terms and conditions upon which such access rights may be exercised, as envisaged by s 235C (6) (b) of the Act. The defendants rely on the legislative basis of SST holders’ rights to access their claims, and its terms in support of the relief sought in issues (b) and (c) above.

14. In fact, it is submitted quite rightly that s236D of the Act provides a legislative basis for the relief sought by both the plaintiff and the defendants. In the case of the relief sought by the defendants, s236 D(1)(a)(iii), as to “manner", s236 D(1)(b)(ii), section s236D(1)(b)(iii), and s236D(1)(b)(iv), are directly or indirectly engaged. The defendants oppose the relief sought by the plaintiff in respect to hours of access identified in issue (d) based on the evidence at the hearing and to a lesser extent upon the brief provisions of Regulation 45(8) (c) and s211 (6) of the Act.

15. The defendants rely on the terms of s383C of the Act, and Division 2 and 3 of Part 1 and Part 2 of the Civil Liability Act 2002 (the CLA) in support of the relief sought by them in respect of issue (a). Contrary to the plaintiff's submissions, it is contended by the defendants that s383C provides no basis for legal action by the defendants arising out of, or with respect to, damage or loss suffered by them as a result of the acts or omissions of SST holders on access roads. The need for an entitlement to indemnity with respect to loss or damage suffered by the landholders, personally or to a third party, as a result of the act omissions of SST holders on access roads created by an AMP is submitted to be non-contentious, and entirely consistent with the terms of cl 25 of the standard conditions of an opal prospecting license in cl 26 of the standard conditions of a mineral claim, copies of which are annexed to the affidavit of Helen Hall sworn on 14 March 2016.

16. The defendants also rely on s 35(1) of the Interpretation Act 1987 (NSW) – dealing with headings within legislation - in support of relief sought by them in relation to issues (a), (b) and (c) identified above.

17. There is some disagreement between the parties about the requirement for mining vehicles to be registered on private land. The defendants rely on the Road Transport Act 2013 (the RTA) for the relief sought pursuant to issues (b) and (c) identified above. In particular sections 4, 5, 53, 60 and 68 of the RTA and cl 13 of the Road Transport (Vehicle Registration) Regulation 2007, which relates to “conditional registration of vehicles”. The defendants submit that the vehicle typically used by SST holders on access roads pursuant to an AMP may be eligible for conditional registration, albeit, they contend on the evidence that, few, if any of such vehicles would be so eligible without significant work done on them. The provisions of Schedule 1 Part 2 of the RTVRR are submitted to be relevant, in so far as there is no category of exemption therein provided which encompasses vehicles used in mining or commercial mining. The exemption provided for “vehicles used for work on farms" is submitted to exclude the inclusion of mining in exempt categories.

18. The inclusion of vehicles used for “commercial mining purposes" in Schedule 4 to RTVRR in the definition of “primary production" is said to be unhelpful to the plaintiff, as it is concerned with the rates of “annual registration charges", and is clearly predicated on such vehicles being registered.

Relevant principles of statutory interpretation

19. At paragraph [13] of the DWS it is submitted that in balancing the protection of the legitimate proprietary interests of the defendants and the legitimate interests of SST holders there are a number of principles of statutory interpretation that inform the Court's determination of each of the identified issues.

20. That said, the defendants contend “…that the rights and entitlements flowing from their proprietary interests should be adversely impacted to the extent reasonably necessary to permit, safe, regulated “access" by SST holders to their titles, and no more”.

21. Applying the general principles of statutory interpretation as articulated by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 the defendants submit that it is appropriate for me to adopt the ordinary meaning of the terms “land management practices" and “environmental protection" as they appear in the context of section 236D of the Act. This is consistent with the review of authorities in Friends of Mallacoota Inc v Minister of Planning and Minister for Environment and Climate Change (2010) VSC 222, which, it is submitted, support a broad interpretation of the term “environment".

22. The matters for which an access management plan may provide are set out in s236D. I accept that they include the requirements sought by the defendants. The section states:

236D Matters for which access management plan to provide

(1)    An access management plan may make provision for or with respect to the following matters:

(a)    the rights of access that the holder of a small-scale title has in relation to the land to which the plan applies, including rights in relation to:

(i)    access points to the land, and

(ii)    routes of access across the land, and

(iii)    the manner in which, and the times at which, rights of access may be exercised,

(b)    the conditions to which the holder of a small-scale title is subject in relation to his or her exercise of any such right of access, including conditions in relation to:

(i)    maintaining routes of access, and

(ii)    preserving the safety of persons and stock, and

(iii)    avoiding interference with the land management practices being adopted in relation to the land affected by the right of way, and

(iv)    environmental protection,

(c)    the manner of resolving any dispute arising in connection with the plan,

(d)    the manner of varying or replacing the plan,

(e)    such other matters as the parties to the plan may agree to include in the plan.

(2)    In the event of an inconsistency between:

(a)    a provision of an access management plan, and

(b)    a provision of this Act, the regulations or a condition of a small-scale title,

the provision referred to in paragraph (b) prevails.

23. However, the defendants contend that the application of s 236D of the Act is constrained by the “legality principle” (DWS at [15] – [35]).

24. Put simply, the principle precludes Courts from imputing a legislative intention to abrogate or curtail basic rights, freedoms or immunities, unless the legislation clearly manifested such an intention by unmistakable and unambiguous language. General words are rarely considered being sufficient to do so, unless specifically dealing with the issue: Coco v R (1994) 179 CLR 427 at 437.

25. Accepting as Gleeson CJ acknowledged in Electrolux Home Products Pty Ltd V Australian Workers’ Union (2004) 221 CLR 309, at [19] that the assistance which will be gained from the principle varies with the context in which it is sought to be invoked; and, as McHugh J explained in Malika Holdings Pty Ltd v Stretton (2001) HCA 14, at [28], only “fundamental” legal rights attract the operation of the principle, the defendants contend that the application of the principle is enlivened in this case because the Mining Act impinges upon property rights and the no more fundamental constitutional guarantee preserved by s 51 (xxxi) of the Constitution of Australia of the importance of the preservation of property rights and the breadth of the interests which constitute “property “ for that purpose (Minister of State for the Army v Danziel (1944) 68 CLR 261, Smith Kline and French laboratories (Australia ) Ltd v Secretary, Department of Community Service and Health (1990) 95 ALR 97). The property rights are those conferred upon the defendants by the Western Lands Legislation pursuit to which they hold title in perpetuity to the lands over which the AMPs are sought by the plaintiff.

26. In summary, the defendants position is that SST holders must have public liability insurance, must register their vehicles and have compulsory insurance and have drivers’ licences and work hours for mining prescribed in the Regulations, because the AMP provisions must be interpreted to protect the defendants’ proprietary rights conferred upon them by the Western Lands Legislation.

27. Rather than evidencing the requisite clear and unambiguous intention to abrogate or constrain fundamental rights or freedoms, the AMP provisions of the Act recognise and preserve those concepts. The defendants contend that an AMP creates a legal right which is “tantamount to trespass on another's land”. In such circumstances the defendants contend that “the principle of least interference with proprietary right should inform the interpretation, and operation of section 236D of the Act. This principle invites a preference for the construction of a statutory provision which least interferes with private property rights: French CJ in R and R Fazzolari Pty Limited v Parramatta City Council (2009) 237 CLR 603, at [619] – [620]. It is also submitted that the principle is reflected in the narrow interpretation of powers to acquire land discussed in: Clunies–Ross v The Commonwealth (1984) 155 CLR 193).

28. It is submitted by the defendants that the complication in applying the principle - which arises when a landholder is entitled to compensation for interference - does not arise in the present context because the Act makes no provision for more than maintenance of access roads created by an AMP. It is submitted by the defendants that the principal is greater when, as in the present instance, the entitlement to enter onto land is not dependent upon the consent of the owner: Anthony Lagoon Station Pty Limited v Aboriginal Land Commission (Maurice) (1987) 74 SLR 77. The defendants submit that granting the relief sought by them, and refusing the relief sought by the plaintiff is consistent with the principle of least interference with their proprietary rights. Conversely, failing to do so, is to materially and adversely impact upon those rights; and the entitlement to safe, and quiet enjoyment of the land: Western Australian Planning Commission v Temwood Holding Pty Ltd (2004) 221 CLR 30.

29. The defendants also rely upon the objects and purposes of the relevant provisions of the Act in support of the relief which they seek including section 3A of the Act together with the exclusion and compensation provisions contained throughout the Act. They submit the provisions operate to balance the rights of SST holders to access their claims, and landholders to enjoy quiet occupation, and enjoyment of their land with the least avoidable impact on the economic activities on the land. The defendants contend the terms of the AMP propounded by them facilitates SST holders accessing their claims without unreasonable constraints, and do no more than provide the landholders with the protection which other landholders are traditionally afforded with respect to persons entering their property uninvited pursuant to a statutory entitlement to do so. It is further submitted that whilst the mine health and safety statutes and regulations expressly or impliedly engage with the safety of persons engaged in mining - implicit in the objects of the Act is protection of the owners of land over which those persons have a right to pass – their not being put at risk of harm or damage, with respect to their persons or property as a result of such right of passage.

30. It is also submitted that the principles of interpretation applicable to remedial legislative provisions are relevant to the interpretation of s236D (DWS at [32]). Section 236D upon which the defendants rely in support of the relief sort by them is said to ameliorate the impact on them of the rights conferred on SST holders by s235C of the Act, and is thus “remedial” and entitled to a liberal or beneficial interpretation: Bull v Attorney General (NSW) (1913) 17 CLR 370, IW v City of Perth (1997) 191 CLR1).

31. In the ultimate, the defendants contend that their interpretation is consistent with the objects and purposes of the Acts and that the relief sought by the plaintiff would create a serious risk of harm or damage to the persons and/or property of the defendants and are contrary to the objects and purposes of the Act.

Overview of the plaintiff’s case

32. The plaintiff accepts the statutory interpretation in relation to part 10A of the Act covered in the judgement of Preston CJ at paragraphs [3] - [13] in respect of matters to be covered in an AMP. The judgement concluded that the Court did have power to deal with the matters remitted for determination as identified; and invited me to address the evidence, make findings, and give reasons for the findings in relation to these matters including findings in relation to hours of access.

33. The plaintiff submits that the rights of miners and landholders must be understood by having regard to the objects stated in the Western Lands Act 1901 including those highlighted in bold below, and not just those relied upon and referred to by the defendants. The objects in s2 of the Western Lands Act state:

The objects of this Act are as follows:

(a)    to establish an appropriate system of land tenure for the Western Division, and to facilitate new land uses and development opportunities for land in the Western Division,

(b)    to regulate the manner in which land in the Western Division may be dealt with,

(c)    to provide for the establishment of a formal access network, by means of roads and rights of way, in the Western Division,

(d)    to establish the rights and responsibilities of lessees and other persons with respect to the use of land in the Western Division,

(e) to ensure that land in the Western Division is used in accordance with the principles of ecologically sustainable development referred to in section 6 (2) of the Protection of the Environment Administration Act 1991,

(f)    to promote the social, economic and environmental interests of the Western Division, having regard to both the indigenous and non-indigenous cultural heritage of the Western Division,

(g) to make other provision for the effective integration of land administration and natural resource management in the Western Division.

34. In relation to the ‘legality principle’ the plaintiff submits that the rights of miners should be read into this also - after all the Mining Act is about mining and presumably the rights of miners are to be protected as well as the proprietary rights of the landholders, which are predominately held under the Western Lands Act – effectively making landholders leaseholders to the State of NSW and incorporates special conditions to facilitate mining access (PWS at [9]).

35. The ‘legality principle’ according to the plaintiff is “a working hypothesis" as Gleeson CJ stated; and the plaintiff submits that Mc Hugh J on a number of occasions in recent years has emphasised that the presumption that a statute is not intended to abolish or alter common law rights must now be regarded as weak: Makita Holdings v Stretton (2001) 204 CLR 290 at [28]: Gifford v Strang Patrick Stevedoring (2003) 214 CLR 269 at [36].

36. The plaintiff’s submit that the very reason for section 236D of the Act is clear evidence of the intention of the legislature to balance both the rights of the landholder (leaseholders) and the SST holders. Each enjoys rights over the same Western Lands Lease area. In each case these rights are subject to their own conditions by virtue of the legislation under which they were granted. The Western Lands Act and the Mining Act each recognise the interests of landholders and of miners; and these rights should be construed so that the competing interests of each are considered carefully. As such the ‘legality principle’ plays a lesser role than the textual approach of the interpretation, where the context and purpose are both examined to achieve the most harmonious goals possible in a given set of circumstances.

37. A ‘rights protective’ construction of the legislation in relation to the competing rights of the landholder and the SST holder is to be preferred in order to achieve such goals as envisaged by section 236D. His Honour Justice Hall described “the evident purpose of Part 10 A as being to permit and manage access” Parkins v LRMA, 75 NSWLR 427. Compulsory registration and licensing was rejected by the Chief Mining Warden in Parkins; as was the requirement for public liability insurance. Furthermore, it is submitted that the Chief Mining Warden went on to say that he could not see any valid reason as to why there should be any restriction on access to hours which are different to those hours as a condition of work on a mineral claim. These matters were not challenged on appeal and the defendants endorse this long-standing approach to the terms of the AMP.

38. According to the plaintiff public liability insurance is covered by general law and is not relevant to access nor is insurance relevant to access. Much of the defendants’ case, as it is submitted, relates to complaints about aspect of prospecting and mining activities rather than access. In particular, the evidence of Alistair Rayner – as submitted, has nothing to do with access but with prospecting and mining activities and the result in loss of income to the landholder. His evidence appears to be relevant to compensation not access. The defendants are paid compensation on the grant of renewal of the title under the Mining Act. Additionally, there is opportunity for an landowner to make application for compensation for some of the matters complained about in the evidence (e.g. rehabilitation of sites) under the newly established Small- Scale Title Levy Fund under s292SA of the Mining Act ( which came into effect on 1 January 2015 with the Gazettal of the Mining Amendment (Small –Scale Title Compensation) Act 2014) and requires on the grant or renewal of a mineral claim payment of a levy for:

• The provision and maintenance of roads servicing small scale titles and road related infrastructure (including gates, grids and signs).

• Rehabilitation or environmental maintenance work on land not held under a small scale title but affected by work relating to small scale titles.

• Rehabilitation or environment maintenance work on stockpiles of mullock

39. The plaintiff submits that the defendants’ proposals for insurance are not workable and unacceptable and the Mining Act including statutory scheme outlined should be allowed to work.

40. The defendants’ argument for hours of access being restricted is essentially based on the proposition that it is dangerous to drive during dawn and dusk and after wet weather particularly when their cattle are moved late evening to avoid extreme heat. There is no reference to the terms of the AMPs determined which prevents access following wet weather or the inclusion of speeding limits to reduce risk to livestock and fauna. The overall objects of the Mining Act in section 3A are “to encourage and facilitate the discovery and development of mineral resources in New South Wales" and to impose the restrictions now sought to be included in an AMP by the defendants ought to be rejected because they do not facilitate the objects of the Mining Act.

General principles of statutory interpretation to be applied

41. I agree with the parties that the meaning of s236D is to be ascertained by the application of orthodox principles of statutory construction, as set out in Project Blue Sky at [69].

“The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon C J pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed, Thus, the process of construction must always begin by examining the context of the provision that is being construed.”

42. I accept that the authorities have also expressed particular emphasis must be placed upon the text itself. Such principles are usefully summarised in Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55 where at [39] the plurality said:

"This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself."

43. As the High Court has also stated, consideration of the context includes the purpose of the provision in question. However, the purpose of a statute is one that "resides in its text and structure" (Certain Lloyd's Underwriters v Cross [2012] HCA 56; 248 CLR 378 at [25]).

44. Therefore, it is necessary to consider, in turn, text, context and purpose, with text at the forefront.

45. In undertaking that exercise, I propose to adopt the ordinary meanings of the words as they appear in section 236D.

46. Consideration of context requires that account be taken of the legislative provisions surrounding the provision being construed as well as the provisions of the enactment as a whole: Project Blue Sky Inc. at [69] - [71]).

47. Section s3A of the Mining Act commences with an overarching objective “…to encourage and facilitate the discovery and development of mineral resources in New South Wales, having regard to the need to encourage ecologically sustainable development, and in particular: …”. The object of the Act, as submitted by the plaintiff, provides “potent reasons why the additional restrictions now sought to be included in the AMPs by the defendants ought to be rejected”.

48. I must apply the text of the legislation in s236D in the context of Part 10A of the Mining Act with the expressed purpose of the Act in mind based on the evidence at this time.

49. I accept that the evident purpose of Part 10 A of the Mining Act remains as articulated by Hall J “… to permit and manage access”: at Parkins at [144].

50. In my opinion the application of the ‘legality principle’ and the principle of “least interference with propriety rights” are relevant but only to the extent to which the statutory provision expressly impinges upon those rights.

51. In this instance, the property rights held by the defendants are as determined by the leases they hold under the provisions of the Western Lands Act 1901. The general principle of least interference with the defendants’ propriety rights as discussed in Temwood is circumscribed by the Act and the provisions of the lease. Shortly stated, the landholders’ proprietary rights do not exceed the terms of their leases.

52. In relation to the application of the ‘legality principle’ I agree with the plaintiff that the rights of miners under the Act should be read into this also. Section 236D seeks to balance both the rights of the landholders (leaseholders) and the SST holders. Both the Western Lands Act and the Mining Act recognise the interests of landholders and of miners and should be construed so that the competing interests of each are considered carefully on the evidence. The interpretation of s236D which I accept gives me the power to impose the requirements sought by the defendants must be construed on the evidence before me at the time.

The Evidence

53. The plaintiff submits that all of its evidence is admissible, some of which is within the exception to the hearsay rule, under s79 of the Evidence Act 1995 - which states “If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge”. It also relies on the application of s190 (3) (a) where the matter to which the strict application of the rules of evidence would cause or involve unnecessary expense or delay.

54. Collectively, the plaintiff’s witnesses are said to inform the Court about the impact of the proposed restricted hours of access on a miner’s capacity to work and the unacceptable financial impost of requiring insurance and registration, licencing as proposed by the defendants. The evidence is submitted as reflecting the deponents’ personal opinions and circumstances and also as being generally representative of the views of a cross section of the opal miners in Lightning Ridge. It would be unreasonable to require the plaintiff to call every miner in Lightning Ridge to address me about the impacts of the requirements sought by the dependents.

The defendants’ objections to the plaintiff’s evidence

55. On 10 August 2016, the defendants filed a table of objections in relation to the plaintiff’s following affidavits:

1. Maxine Anne O'Brien containing 22 paragraphs;

2. Jeremy Roderick Lomax;

3. Timothy Graham Jenner;

4. Johann Sebastian Deisenberger;

5. James Robert Ben Haverhoek; and,

6. Gareth Edward Middleton.

56. However, at the hearing, the defendants did not take up time trawling through the affidavits to point out conclusions which they ultimately submitted were “beyond the pale”. Instead, they allowed the miners’ evidence to be received by the Court on the basis of it being that individual’s personal experience. They also allowed into evidence the annexures to Ms O’ Brien‘s affidavits but not her commentary on the law and her opinions about some of the requirements at issue.

57. The defendants did, notwithstanding, press strenuously their objections to the extrapolation of the personal views expressed by the plaintiffs’ witnesses to the whole of the opal mining industry in Lightning Ridge.

Defendant’s objection to Ms O’Brien’s evidence

58. The crux of the defendants’ second objection to Ms O’Brien evidence was that, however liberal an interpretation of s79 may be taken she cannot give evidence of the financial impact on the industry, or the imposition of insurance, registration on an AMP as proposed. The transcript records the defendants’ objections with respect to the plaintiff’s evidence in the following way: “There’s no issue that the individual miners and witnesses other than Ms O’ Brien … can on any number of bases , not the least s79, give evidence about the two broader topics to which they refer, that being the physical state of the repair of the equipment used by them and secondly at least in terms of making allegations they can make allegations about what they respectively contend would be the financial impact for them personally of having to secure insurance" (Transcript D 1 p 3).

Ruling on the objections to Ms O’ Brien’s evidence on the financial impact and registration, licencing on the opal mining industry in Lightning Ridge

59. After careful consideration of the defendants’ objections to the plaintiff’s evidence (in the context of all of the evidence and the parties’ final submissions), I accept that Ms O’Brien has not demonstrated to my satisfaction in the present proceedings that her specialised knowledge of the opal mining industry in Lighting Ridge, based on her training, study and experience, which might otherwise fall within the exception in s79 of the Evidence Act, extends to giving evidence about the financial impacts of the defendants’ proposed changes to the AMP for the entire mining industry in Lightening Ridge. As she conceded in cross examination, her understanding of the financial impacts of registration and insurance for the opal mining industry in Lighting Ridge are only based on her belief following discussions with LRMA miners who expressed financial hardship. She did not provide any objective evidence to support her conclusions about financial hardship such as tax returns or verified financial statements from miners - or for that matter conduct and provide to the Court the results of any survey of LRMA members which support her views about financial impacts for the industry. Whilst I am entirely satisfied that Ms O Brien has an intimate knowledge of many aspects of the opal mining industry and that as the evidence stands, it is - as the defendants’ submit - “a huge leap” on the available evidence to elevate her status to that of an expert on the financial impact and her conclusion that the imposition of the defendants’ requirements would “decimate” the opal industry in Lightning Ridge. I do not allow that part of her evidence. Her evidence about public liability insurance and other relevant matters is dealt with later in my judgment; and it is convenient to deal with the evidence of the miners next.

The miners’ evidence

60. With respect to the affidavit and oral evidence of the miners including; Mr Deisenberger, the current president of the LRMA, there was no objection raised by the defendants to the Court receiving their evidence on a personal basis. It covered several topics of relevance including: the financial impost that vehicle registration and public liability insurance and licencing would have on their capacity to continue working in the industry; the impact of the proposed restriction of work hours on their work; the state of repair and safety of the unregistered mining vehicles they use and observe on the properties; their knowledge of significant mining accidents/and/or incidents on access roads; the frequency and extent of departmental inspections of their equipment/mine sites; and their reporting requirements and the work practices they adopt.

61. The defendants did, however, object to my receiving their evidence as reflecting a representative view of the opal miners in Lightning Ridge more generally. The assertion being that they can only speak about their own particular experiences and to do otherwise is heresy and outside the exceptions.

The miners’ evidence as being representative of a broader cross section of opal miners

62. After a careful consideration of the defendants’ objections I have decided to allow the evidence of the miners on both a personal basis and also as being generally representative of a broader cross section of opal miners in Lightning Ridge. I have reached this view because I accept that the miners selected to give evidence by the LRMA are not a homogenous group – but rather an eclectic group of opal miners in Lightning Ridge. They are of different ages, with various levels of education and qualifications and have had varied life experiences in Lightning Ridge as opal miners. Each has lived and mined for opal in Lightning Ridge for many years and use access roads and tracks. Their evidence - which was tested in Court – in relation to the affordability and impacts of the requirement for registration, public liability insurances and licences and reduced work hours, can be understood to be a representative experience of other opal miners in a similar situation in lightning Ridge.

Gareth Middleton

63. Mr Middleton, an opal miner with 31 years’ experience gave evidence about the nature of the opal mining industry in Lightning Ridge. He states in his affidavit (Exhibit BB) that opal is “a resource that cannot be predicted”, and consequently his income fluctuates “…dramatically from year to year or month to month”. In fact, he has experience of having “…gone many years with no substantial income from mining although my mining expenses remain” (Exhibit BB at [3]).

64. In cross examination, Mr Middleton was asked some questions about his current income and assets. He said under oath that his taxable income in 2015 and 2014 was very low and in the order of $12,000 pa. His other assets are valued at about $20,000. He did not believe that he could afford a premium of $2000 per claim for public indemnity insurance and, if required to do so, he would not be able to remain a commercial miner.

65. Mr Middleton holds mineral claims which he works on the defendants’ property ‘Allawah’. In the late 1990s and early 2000, he and his partners worked a number of mineral claims as subcontractors to Rick and Helen Hall on their property ‘Sorrento’. During that time, when the Halls were commercially benefitting from opal mining, Mr Middleton said that the Halls did not require him or his partners mining equipment to be registered or insured or for them to hold relevant licenses. Additionally, the Halls did not require public liability insurance and they did not restrict hours of access.

66. Mr Middleton told the Court that he presently drives unregistered vehicles without requisite licences on private tracks and has done so without incident for over 30 years. He describes himself as an extremely competent, safe and sensible driver with experience in driving dump trucks, trucks and drilling rigs. When asked about various accidents or incidents on access roads/tracks on private properties Mr Middleton was unable to recall any significant incidents. His evidence is that “In all my time of involvement in the mining industry I have no knowledge of any significant mining related motor vehicle accidents involving unregistered vehicles on private tracks on the opal fields”.

67. Prior to earning sufficient income from mining on ‘Allawah’ to purchase a registered dump truck, he told the Court that he did not use public roads. His current registered truck is the first registered truck he has owned in 31 years of mining. When mining on other properties in the past he said that he has been able to cart excess mullock to centralised rehabilitation stockpiles and opal bearing claystone to a wash plant using private tracks.

68. Mr Middleton said that he was a competent mechanic and able to repair his own mining machinery including dump trucks, drilling rigs, blowers and loaders etc. His vehicles whilst in good working condition would not necessarily pass registration.

69. At present Mr Middleton is accessing his title via a right of way from 7am to 6pm. He told the Court that this timeframe severely restricts his ability to work. During the hotter times of the year when there is extreme heat in excess of 50 degrees he needs to stop work at midday so that his machinery does not overheat. He would prefer to start before sunrise and work till sunset and avoid working in the extreme midday heat. Arriving about 15 minutes before sunup would be acceptable. He needs to work till after sunset, and as required, be able to access his title for emergencies such as theft. He told the Court about a theft at Jag Hill in about 2011.

Jeremy Lomax

70. Mr Jeremy Lomax is an opal miner and opal buyer. He has been a resident of Lightning Ridge since 1962, and was a past President of the LRMA in the late 1960s and between 1985-1989 and 1994 -2003. He has liaised with three past Ministers for Mines and was a member of the Lightning Ridge Advisory Board, The Lightning Ridge Mining Board and the Australian Gem Industry Council. Mr Lomax’s affidavit is dated 15 April 2016 and is (Exhibit 12).

71. Mr Lomax told me that the industry was highly speculative and that miners’ incomes are unpredictable with many miners spend years with no positive cash flow. He has experienced the boom times in the 1980s when many of the graziers became opal miners (including each of the defendants) and opal mining was lucrative; but said in recent years the industry has been tough and less lucrative.

72. He described life as opal miner in Lightning Ridge in the following terms at [9]- [14] :

“In order to be an opal miner you have to be resourceful and practically orientated particularly in regard to machinery as neither are there readily available services or often money to employ them. Most miners have to maintain and often build their own equipment. No miner can go to work on the tracks we call our roads developed by miners without their trucks being in a serviceable condition because if they weren’t they cannot make a living. The mining machinery and vehicles must meet the work health and safety standards and in the 50 odd years I have been involved in the industry I cannot recall a situation in which a leaseholder has been disadvantaged.

The nature of the industry is that if you are not resourceful and self-reliant you do not survive. Witness the fact is that in underground mining the opal industry has a better safety record than the coal industry.

Very few miners have been able to achieve sufficient capital or certainty of income not to be aware that their income may cease the next week and therefore every attempt is made to husband their resources by keeping their existing equipment adequate for their working needs. And, because of the myriad of demands on mines to continue operating it is also essential that the flexibility of working hours be maintained. Opal mining is not a 9-5 job but where the miner has to be on the job in some aspect of their business virtually 24/7 to be successful.

Finally, the Department of Industry in it recent proposal “Voluntary Surrender of Western Lands Leases in Lightning Ridge” specifically states that opal mining is an important and integral part of the region. The industry at the moment is in an extremely perilous sate where the cost of production against rise of product achieved is continuing to decline. Registration of trucks and insurance would kill an industry already in a marginal situation of survival”.

73. Mr Lomax is clearly an experienced opal miner with a long term understanding of the opal industry in Lightning Ridge from both the miners’ perspective and from holding various executive roles within industry groups. Mr Lomax spoke about one incident that he recalled when a mirror was knocked off a truck that tipped on its side on a title at some time in 2012 or thereabouts but said that no damage to the landowners’ property occurred. He did not recall any significant accident or any incident on access roads where damage was caused to a landowner and not repaired. His opinions were tested in Court and in my opinion his evidence was both credible and reliable. I found him well placed to speak about the impacts of the restrictions sought by the defendants for a cross section of the opal miners in similar situations in Lighting Ridge.

James Haverhoek

74. Mr Haverhoek is an opal miner with 26 years’ experience and an earthmoving and mining rehabilitation contractor. He gave sworn evidence that he presently has mining interests on ‘Allawah’ and was a share farmer on ‘Allawah’. His affidavit is Exhibit DD. It was put to Mr Haverhoek by Mr Coleman during cross examination that he was a “reputable and very experienced earthmoving contractor”. He agreed and his tested evidence confirms as much.

75. He said that he has registered earth moving vehicles and holds indemnity insurances because it is a condition of his particular contractual arrangement (Transcript Day 2 p52 at LL35-50). In response to a series of questions put by the defendants’ counsel Mr Haverhoek said that he believes that a lot of the SST holders who travel on the access routes would pass registration. His evidence did not really change after examining the series of photographs attached to Mrs Hall’s affidavit (Transcript Day 2 p55 LL5; p56 LL5) albeit after he agreed that some vehicles might require some work.

76. As stated Mr Haverhoek’s employment includes the carrying out of earthmoving and mining rehabilitation works on various properties including ‘Allawah’. He said that when this type of work was carried out on ‘Allawah’ in the past the Halls have never asked if his vehicles were registered or if he carried public liability insurance or was appropriately licensed (Exhibit DD at [10]). I accept Mr Haverhoek’s experience is not dissimilar to other miners who have worked on properties in Lightning Ridge.

77. Mr Haverhoek gave oral evidence at Lightning Ridge about the ‘bogged front end loader’ incident referred to by Mrs Hall (Exhibit 1 p15 annexure HHA) and Mr Rayner. After hearing his evidence it is clear to me that the ‘bogged loader’ is of no assistance to the defendants’ case as the incident does not stand up to close scrutiny. In summary, Mr Haverhoek said that the unregistered bogged loader was located outside the Halls’ property within the road reserve. He knew this because he had removed it. He knew the area was the road reserve because he had sometime earlier laid pipes there and had assisted Mr Hall erect the fence on the boundary. Mr Haverhoek told the Court that a fence usually indicates the boundary of a road reserve, that is why he was directed by Mr Hall to put the valve chamber for the under road pipes on the other side of the fence and outside the road reserve (Transcript p57 at L5). The fence was behind the bogged loader.

78. Mr Haverhoek’s evidence was at odds with Mrs Halls’ evidence. In the circumstances I accept Mr Haverhoeks’ recollection of events as they seem more plausible based on the facts before me.

79. It seems when Mr Haverhoek carries out grading work on the access routes he contacts the landowner in advance to let them know (Transcript Day 2 p53 at LL10). There was some criticism by the Halls about the manner in which he did this on the last occasion but nothing of relevance turns on this in my assessment. It appears to have been a misunderstanding there was no suggestion of a bad working relationship in the past in fact to the contrary.

80. In my assessment his efforts to provide notice of upcoming grading work on access tracks demonstrates this miner’s adherence to safety procedures and consideration for the landowner’s land management practices. No doubt with advance knowledge of proposed grading activities on an access track a landowner could for example avoid that area on the day or elect to move cattle in that area on that day or negotiate the timing of the activity with the miner to another time. It is not unreasonable to assume that other miners carry out such maintenance activities on access tracks in a similar safe way. The suggestion by the defendants that lack of registration or insurances and “practical immunity from liability for damages for any injury, damage, loss caused by their acts or omissions provides a clear and substantial disincentive for SST holders to take reasonable steps to prevent foreseeable harm to the defendants, thereby increasing those risks for the defendants, and other, in the ways articulated above” (DWS at [44]) is not made out on the evidence given Mr Haverhoek as outlined above or most of the other miners.

Timothy Jenner

81. It was plain from Timothy Jenner’s affidavit evidence (Exhibit FF) which was tested in Court that he maintains his equipment including dump trucks, exploration drilling rig, and blowers used on private tracks. Mr Jenner gave his sworn evidence that he has 28 years’ experience in the driving dump trucks and 15 years’ experience of driving drilling rigs. He believes that he is an extremely competent driver and that he drives on access routes in a safe and sensible manner. He is mechanically adept and able to repair his own mining machinery including top trucks, drilling rigs, blowers and loaders.

82. Based on experience gained from 28 years involvement in the opal mining industry Mr Jenner said, on oath; “I have no knowledge of any mining related motor vehicle accidents involving unregistered vehicles on private tracks on the opal fields” (Exhibit FF at [9]).

83. Mr Jenner was asked several questions about his income from opal mining and his assets. He gave sworn evidence that he would not be able to afford the registration of vehicles and mining plant used on private tracks - although the cost of registration itself is not his main concern rather, he said, that “…mining tracks and roads themselves are rough and keeping a piece of equipment registrable is expensive even though the mining vehicles I use on private tracks are safe” (Transcript day 2 p22 at 35). Mr Jenner holds 20 titles in his name and in company names and told Mr Coleman that he could not afford $2000 per title which equates to $40,000 pa. While he said he had loans and in the past year had paid no tax, he admitted to having estimated property (including plant and equipment) to the value of $400,000. The defendants’ attempt to suggest that certain tyre rods (which were produced at the hearing and handed to Mr Jenner in cross examination) came from his Mac truck. That they : “literally fell out of the vehicle” and were dumped on ‘Allawah’ was not accepted by Mr Jenner; and, quite frankly, was not particularly useful in the scheme of things.

84. This line of question was intended to imply that Mr Jenner’s Mac truck was in a state of extreme disrepair with parts falling off it. However, the outcome of the exchange did not support any such finding. Instead the Court heard that his Mac truck had been out of service for about 3 months, and that he believed any rods removed from his vehicle had been “thrown on the scrap heap”. In the end his evidence only lends support to a finding that miners do not use unregistered vehicles on access tracks that are not road worthy but keep them out of service until repaired. In my assessment the defendants’ submission at [44]) that miners without public liability insurance, with unregistered vehicles and without requisite licences adopt unsafe mining practices and do not “take reasonable steps to prevent foreseeable harm to the defendants, thereby increasing those risks for the defendants” is not made out on the evidence of Mr Jenner.

81. With respect to hours of access Mr Jenner said in summer he needs to access his title by 5.30 am to take advantage of the cooler weather. His evidence was consistent with the views expressed by a number of the mining witnesses and entirely reasonable and in my assessment necessary given the extreme heat of 50 degrees which Mrs Hall accepted can occur in the summer months at Lightning Ridge.

82. Mr Jenner had trouble (like most of the miners who were cross examined about Mrs Hall’s photographs) in identifying the vehicles/ machinery in the photographs or recalling the incidents /accidents put to them randomly and out of any context in the witness box. Consistent with the evidence of the other miners tested in court Mr Jenner did have vague recollection of a few incidents in past years; however, he could not confirm with any particularly these incidents. Apart from perhaps the incident where the truck is said to have rolled many years ago on loose gravel on an access track and caused no irreparable damage to the landowner’ property or person, it is unclear on the evidence where or whether these alleged incidents happened on any access routes or on OPB or mining titles.

Gary Griffith

87. A version of the accident involving Mr Newton’s vehicle is explained in Mr Griffith affidavit and seems plausible. As collision did not occur on an access road the event is no particular relevance to the issues at hand. If anything, it demonstrates that this miner took responsible action to repair Mr Newton’s vehicle and was held to account by the police and fined.

Findings: Miners’ evidence

88. I cannot accept, as submitted by the defendants (DWS at 56) in cross examination that “a number of unreported incidents were admitted by the plaintiff witnesses, albeit their magnitude was down played, or sought to be dismissed as having occurred on OPBs or mineral claims, or processing sites”. That is an unfair generalisation of miners’ evidence in my assessment. Most had very vague, if any, knowledge of incidents and none of the witnesses cross-examined had any satisfactory recollection of a significant incident on an access track where damage occurred to the landowner’s property or person and damage not being repaired by the person responsible. In my assessment the miners’ sworn evidence about the impact of public liability insurance, registration, licencing, and the restriction of their hours of works which was tested in Court was both credible and reliable. I accept it in respect of each deponent’s personal experience and as being representative of other opal miners in similar situations.

89. Contrary to the defendants’ submission, the miners’ evidence did not support a finding that all miners are ‘men of straw’ with no assets; and, thereby, unable to pay any damages claim ordered against them in the unlikely event they were required to do so. Rather, the miners gave evidence that some of them own plant, and/or mining vehicles and equipment and other property/houses of value and thereby, and could pay out a damages claim if ordered to do so by a Court. Mr Jenner, Mr Deisenberger and Mr Haverhoek’ gave sworn evidence about their personal income and assets of value which reflected a sample of the financial circumstances of a range of miners in the area. I have no reason to reject their sworn evidence about their financial circumstances or it being representative of other miners in Lightning Ridge in similar situations.

90. That said, all of the plaintiff’s mining witnesses told the Court that the requirement to pay an insurance premium of $2000 per title pa for public liability insurance would be unaffordable because they hold more than one title and their income fluctuates. For example, Mr Jenner holds 20 titles and for him the cost of public liability insurance at $2000 per title would equate to $40,000 pa. His evidence is that a requirement to pay such insurance would “see him out of the industry”. The evidence supports a finding that the miners’ have cash flow problems because opal is an unpredictable resource and their incomes fluctuate depending on whether they find opal or not. It is not unreasonable to accept on the evidence that some opal miners have no income for years despite have some assets of value in property. I accept that it reasonable to assume that some miners like Mr Jenner cannot afford public liability insurance at $2000 per title, if such insurance were available which has not been proved to any level of certainty in this case.

91. I accept that the evidence supports a finding that miners adopt safe driving practices on the access roads whether insured or not, with or without relevant licences and vehicle registration. I have reached this conclusion because the glaring lack of evidence brought forward by the defendants in respect of any significant or minor accidents and damage to person or property of any consequence on access roads. The miners said that they are experienced and safe drivers of their unregistered vehicles on access roads and that they maintain their vehicles to an appropriate level of safety for access roads which are generally rough tracks. The fact that there is no evidence of an incident or a significant accident on an access roads suggests that their unregistered and register mining vehicles/ equipment are appropriately maintained and not unsafe and that they take appropriate car on the access roads.

92. I also accept on the evidence that miners undergo Departmental inspections of their mining sites and their machinery and the work unregistered vehicles. The Court received the log books and maintenance records held by Mr Deisenberger and Mrs O Brien gave evidence about the inspection and site rehabilitation requirements for opal miner. Her evidence accords with the experience of the miners who addressed the Court. The most recent inspection being some three weeks before the hearing in April 2016 and generally about 4 times per year. The evidence about inspections is corroborated by the evidence of Mr Jenner and even Mrs Hall and on that basis I accept that there the requirement for safe work practices and safe equipment /vehicles is a part of life as an opal miner in Lightning Ridge. These witnesses’ evidence reflects what happens in Lightning Ridge more generally, – a contention not contradicted.

93. In each case, I am satisfied that the miners answered the questions directed to them in a frank and honest way. I found their evidence about: their fluctuating income, unaffordability of public liability insurance at $2000 per title, their experience with the maintenance of their own vehicles/ mining equipment to a standard of safety applicable to a rough access road on private farm land; hours of work, and their recollection of no significant mining accident /incident on any access road to be credible and reliable evidence. Moreover, this evidence was not seriously contradicted by any other evidence.

Evidence of Anthony Chrisis, engineer/ racing car driver

94. The plaintiff objected to the evidence of Anthony Chrisis on the basis that this witness had not visited the site and other grounds. In the voir dire the plaintiff’s counsel put to this witness that his report (which was admitted as provisional Exhibit 6) was wholly inadmissible as it related not to AMP’s but was wholly derived from records and statistics related to public roads.

95. I have decided to accept the plaintiff’s objection to Mr Chrisis evidence and rule the report to be inadmissible on the basis of relevance. His report and oral evidence does not assist me in resolving the issues in these proceedings. In forming this view I am mindful of terms of his brief which is outlined on p3 of his report as follows:

I have been asked to provide my expert opinion, which is provided in the section titled “Opinion to Matters” with regards to the following three areas:

1. Insurance – the need for public liability, general insurance and motor vehicle insurance whilst on the landholder property.

2. Registration and licensing – the need for registered vehicles to operate on landholder property and the need to be licensed to drive such vehicles.

3. Hours of access – issues of concern with entering the property after hours (at night).

96. This case is not concerned with general access to the landholder’s property but the manner of travel along access routes and the other requirements pressed by the defendants.

97. In addressing the issues listed at p3 set out earlier Mr Chrisis states “I have also applied my experiences as a race car driving, advanced driving instruction, motorcycle riding and heavy vehicle operation”.

98. However, in my assessment none of this experience appears to have been applied relevantly to the particular issues at hand. In completing his ‘ Engineering Expert’s Report Mr Chrisis has undertaken a risk rating to argue for limiting hours of access based on - as the plaintiff submits “dubious and in places incorrect assumptions” (PWS at p21 paragraph 69). For example, at p144 of his report he states that if no insurance cover is in place for the miner then the landowner is required to pay for such damage without being compensated. This conclusion is not supported by any evidence of such damage and does not reflect the position under the Mining Act or the general law which applies. Mr Chrisis ignores the indemnification (even to the extent that the defendants accept it is available) under s383C of the Act.

99. His conclusion that unlicensed drivers are inexperienced; and that unregistered vehicles are unsafe; and that hitting fauna between evening and dawn is a risk are not supported by any probative evidence and at best is a bold assertion. As the plaintiff submits, in relation to the risk of crashes with fauna, Mr Chrisis refers to a study but omits to cite that the authors of the study conclude:” Nonetheless, it is known that drivers can effectively reduce the likelihood of animal vehicle crashes by reducing their driving speed and remaining alert while driving through areas where animals are more abundant”. Mr Chrisis does not appear to appreciate that the terms of the AMPs determined by the Court which include conditions requiring restricted access during wet weather. The comparison he draws between businesses in Australia having public liability insurance and the case at hand is not relevant. Access pursuant to a SST is not open to the public and requires the consent of the title holder. Mr Chrisis’ reference to a quad bike accident hitting a blind pivot in natural park bushland and CTP claims more generally are not relevant to access via an AMP on private land/access roads where CPT insurance has no operation. His references to comprehensive insurance are also outside the ambit of these proceedings.

100. While I accept that a function/benefit of registration is a publicly recorded means of identifying the owner of a vehicle, Mr Chrisis did not in his evidence appear to appreciate the identification requirements already prescribed in the determined AMP which the plaintiff submits adequately address that issue.

101. For the reasons stated I find Mr Chrisis’ evidence simply irrelevant and for that reason I do not admit it.

Evidence of Alistair Rayner- agricultural consultant

102. The plaintiff says that the evidence in the report of Alistair Rayner, (Exhibit 770 should be given little weight as he was called as an agricultural expert dealing with issues relating to agribusiness and his observations relied more on the alleged impact of SST sites rather than access along tracks. Therefore, his report is substantially irrelevant to the four issues before the Court.

103. It is further submitted that Mr Rayner was unable to separate prospecting and mining activity from access and much of his evidence is irrelevant or based on inadequate information and assertions and has no probative value. For example, he was not informed by the Halls about the use of helicopters on their properties for the purposes of mustering as Mr Hall ultimately conceded and is evidenced by several invoices for such services tendered by the plaintiff (Exhibit 77). His evidence about the temperament of the cattle on the Halls’ property was predicated upon the basis that Mr Hall moved cattle with the assistance or employment of at least three people in addition to himself and Mrs Hall (paragraph 32 of his report). This does not take into account the helicopters which it might reasonable be assumed has also had an adverse impact on the temperament of the cattle. Therefore, his conclusion that mining vehicle movement is the reason why the cattle he observed were not calm is at best unreliable and should be rejected (Exhibit 77 at [32]).

104. In my assessment it would be unsafe to make findings of fact in reliance on Mr Rayner’s oral and written evidence because in the most part it is based on supposition and hearsay. It is fair to say that of Mr Rayner’s affidavit has more to do with exploring and mining activity than access to opal mining. While, he did visit ‘Allawah’ and ‘Sorrento’ with the Halls; and, experience dust generated by unknown drivers on tracks adjacent to the main road and alongside the fence constructed on ‘Allawah’ (at [21]-[22]); and observe mining activities and unregistered old vehicles and mining machinery within the properties this evidence does not support the registration of vehicles on access roads on private land; public liability insurance, or the requirement for licenced drivers or restricted hours of access.

105. In the main, Mr Rayner’s evidence reflects the Halls’ concerns, which in my assessment arise from the competing nature of the authorised uses of mining and farming (namely; livestock movement, grazing and routine management practices). His affidavit, includes photographs of areas within the Halls’ properties that do not advance the issues in dispute in this case. For example, one photo shows a partly remediated exploration sites (image 10 p 16); another is of exploration holes in paddocks (at [17] image 2 p8); rubbish –discarded beer bottles (at [20]); abandoned oil containers, damaged barrier netting, iron and tyres (image 10 at[33]); eroded and sunken exploration holes (image 5 p12); an allegedly unregistered mining vehicle near a watercourse on ‘Allawah’ which it is asserted is in “poor condition with many leaking oil onto the ground” (image 8 p14) but no evidence to support such an assertion. None of this evidence is relevant in my assessment. On the few occasions when Mr Rayner gives direct evidence of his observations his evidence is again unhelpful. For example, at [32] Mr Rayner states:” I did not observe any barriers around any mining activity”. That observation without further information relevant to the issues at hand does not assist me at all. I am not dealing with mining activity but legal access to that mining activity on private land leased by the Halls and Mr Newton.

106. There is no evidence given by Mr Rayner about any issue or problem arising from registered or unregistered vehicles driven by licensed or unlicensed by SST holders and their contractors on access tracks to their SST. No evidence of unregistered or unlicensed vehicles driving along access tracks causing injury to cattle or frightening cattle or damaging property or indeed a person. No probative evidence - or in fact any evidence - demonstrating the difficulty of moving cattle on access routes around mining vehicles or equipment which it is asserted are “frequently frightened by unpredictable movement of vehicles and equipment’ This is no more than a bold assertion based on advice from Mr Hall (p15 at [32]). Mr Rayner records Mr Hall told me: “...Any movement is now extremely difficult and in some cases dangerous as the cattle were frequently frightened by the unpredictable movement of vehicles and equipment (p15 at [32]).

107. It is difficult to make sense of the relevance of the evidence as it is unclear where the said vehicles are located, their registration number or the time of day or night, whether they were using access roads, how they were being driven or how frequently – if at all - this problem has arisen. In any instance, it is difficult to conclude if the fact the vehicles were unregistered or the drivers unlicensed exacerbated the alleged problem.

108. A complaint about dust generated by a Land cruiser on a track between the road and the fence line (image 5 p11) – is apparently outside the Halls ‘property and of no relevance.

109. Mr Rayner’s repetition of Mrs Hall’s assertion that “unknown persons seeking access of the paddock for the purposes of opal mining” disturbed timberlines which had been placed to reduce or manage water runoff in during rain events etc (at [11]-12) does not go to the issues at hand. Further, the evidence about the bogged loader at (p11at [24]) is contradicted by the plaintiff’s other witnesses; and frankly I do not accept Mrs Halls’ evidence that the fence is not on the property boundary. Her concern about the pipes being damaged is not made out on the evidence. As already stated Mr Haverhoek explained in his oral evidence how he had assisted in the laying of the pipes in the road reserve with the assistance Mr Hall; and had taken responsibility to remove the bogged loader and repair the area located outside the property on the road reserve. The fact that the loader was not registered did not mean on this occasion that the owner of the vehicle was not located or able to take responsible action to remove it and repair any damage.

110. The photographs attached to Mr Rayner’s report depicting old vehicles, mullock dumps, cleared areas and timber piles directing water flow are of no assistance with the issues. There is no evidence of unregistered vehicles driven by unlicensed drivers causing accidents to property person or fauna on access tracks. The condition of the cattle which Mr Rayner described as agitated and frightened, if that is the case, cannot reasonable be attributed to unregistered vehicle movements by unlicensed SST persons on access routes – particularly after receiving Mr Hall’s evidence that he uses helicopters moving in a grid pattern at 500m above the cattle to muster them to horseman who take them to the yards. Any number of things might cause the cattle observed by Mr Rayner to appear agitated and frightened including mustering by helicopter.

111. The fact that people move over the property to access their SST is an authorised use which will no doubt have impacts for the movement of cattle and pasture management and they do need to be managed by an AMP. That is exactly what the determined AMP seeks to do – manage access and it appears to me that the requirements for registration, identification provided for in cl12 together with the insurance under s383 of the Act and compensation to landowners under the Act and regulations for maintenance of access paths etc do not need to be enlarged as proposed by the defendants on the basis of anything that Mr Rayner has on oath said to the Court or has tabled in his report.

Mrs Hall’s evidence

112. Mrs Hall gave oral evidence in Court in addition to her affidavit evidence (AA). It was agreed at the outset that she would speak on behalf of her husband who had sworn an affidavit in similar terms.

113. Mrs Hall is clearly concerned about the liability aspects of a person driving an unregistered vehicle having an accident or causing damage to any assets, including livestock, agisted livestock, improvements on the land such as fencing and any persons working the property.

114. She believes that without relevant insurance members of her family or workers on the property from time to time may have no chance of being compensated by an uninsured driver in the event of an incident. Additionally, she is concerned about the cost of replacing assets that are damaged (including any excess on any policy held) by the landowner. However, she was unable to give any evidence about such an incident. Instead, Mrs Hall made generalised assertions about unsafe unlicensed drivers in unregistered vehicles on access roads causing damage. She was unable to identify any such person vehicles or damage to the Court; and in response to a series of questions from plaintiff’s counsel about these matters Mrs Hall said that the plaintiff’s witness, Mr Middleton and the sub-contractors working with him on her property ‘Sorrento’ back in 1999 were “…very good operators”; and that registration and insurance were not an issue then. She also agreed with Mr Williams that the other opal miners the plaintiff had called to give evidence at the hearing were good operators (Transcript p10 day 1).

167. In the ultimate, the defendants’ submit that the landholders their family, stock and property should not have to risk loss or damage for which they are unlikely to secure compensation in the absence of insurance and no other member of the community would ever be placed in that situation.

168. Moreover, registration would assist with the identification of vehicles on the landholders’ property. Mr Slack- Smith gave evidence about this matter in his affidavit and at the earlier hearing. Mr Hall states in his most recent affidavit that vehicles have run off the road, particularly in wet weather causing significant damage, and that this is the most common type of damage that is caused on the properties. Repaired fences do not have the same tension or strength or integrity as that of an undamaged original line of fencing (Affidavit of Mr Hall dated 14 March 1996 exhibit 5 at [9]). It is Mr Hall’s belief that “if registration of vehicles accessing the properties was mandatory, it would limit or at least decrease, the damage that is caused to vehicles used in mining SSTs when vehicles are either left on a claim for a period of time, or deserted following the SST holder moving on from the claim. Additionally, it would allow for a means of identification in relation to such vehicles that are the subject of decay, damage or desertion. Numerous photos in Annexure RHA demonstrate the decay, damage and vandalism on mining vehicles and machinery. As landholders we have been unable to identify the owner of and /or move the damaged machinery. A registered vehicle is far less likely to be left behind because it has broken down than a registered and roadworthy vehicle” (Exhibit 5 at [17]).

169. That said, the defendants were not able to adduce any admissible evidence of any significant accidents or of their reporting resulting from unregistered vehicles or machinery on access roads. A number of incidents of hearsay evidence were put to the various plaintiff witnesses and apart from one or two incidents none of them were recalled. The evidence about the rollover of a car between 1991 and 2000 on an AMP access route concerning Mr Tischler was so vague that it unreliable. It seems the vehicle tipped over due to the build up of wet gravel on the top of the road. The vehicle was not significantly damaged and was driveable and repaired by the person involved. In any event, if it happened, as recalled the incident occurred some 25 -16 years ago. Relevantly, there is no record of cattle deaths reported as a result of collisions with livestock on access routes and, Mrs Hall’s evidence about the bogged loader does not stand up to close scrutiny for the reasons stated.

170. To overcome this lack of evidence the defendants argue that the fact that these incidents have not been reported does not negate the need for registration and requisite insurance in respect of vehicles on the access roads which “inevitably will cause loss or damage and when they do the loss or damage will be substantial and unlikely to be compensated”.

171. The inevitable however, has not proved to be the fact over a long period of time and, without some identified risk established on probative evidence, it is difficult to require such onerous and expensive restrictions on an AMP.

172. The defendants when they held mining titles did not apply the restrictions which they now seek to impose on SST's in these proceedings. Given that there is no evidence of any changed opal mining practices, no increased risk, I accept that what was good for the defendants then should be good for the defendants now. I decline to exercise my discretion to impose the registration and insurance restrictions proposed on the evidence as it presently stands. It is not reasonable to include a requirement for registration and licensing in the AMP as motor vehicles and drivers using public roads must comply with motor transport legislation and regulations thereunder and AMPs do not need to be involved in policing this. Breach of these requirements constitutes a breach of public law and as such these are matters for the police and transport authorities.

173. Many farmers and graziers across New South Wales use unregistered vehicles and unlicensed drivers on their properties. These requirements of public law do not apply to them so long as they confine their use to private land. In many cases they can obtain special permits if they venture outside to the public roads and as the plaintiff submits it is reasonable for the same rules to apply to small-scale title holders in their vehicles when they are operating on private land pursuant to an AMP - by definition an AMP is confined to private property. What happens on public roads does not concern the AMP.

The Roads Act 1993 definition has a public road means:

a.    any road that is opened or dedicated to the public road whether under this to any other Act or law; and

b.    any road that is declared to be a public road for the purposes of this Act.

The Roads Act 1993 says a private road means any road that is not a public road. The Registrar General Land and Property Information defines public roads as

“a road opened or dedicated for the free ride of passage of the public on foot, in a vehicle or otherwise (together with the right to drive stock or other animals along its length) and declared to be a public over the purposes of the Road Act 1993.”

and defines private roads as

“A road restricted to use to a limited class of person (i.e. not all members of the public) or to a limited period of time."

The Road Transport Act 1913 definition section 4 says

“Road means an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving or riding of motor vehicle."

Section 53 of the Road Transport Act 2013 says

One person must not, unless exempted by the statutory rules:

(a)    driver of motor vehicle on any road without being license for that purpose, or

(b)    employed or permit any person not so licensed to drive a motor vehicle on any road.

177. Again, the definition of a road does not include a private road. A further reason why opal miners are primary producers and as such under section 6 of the Road Transport (Vehicle Registration) Regulation 2007 provides

“The registration provisions do not apply to any registrable vehicle being driven across any road or road related areas when travelling to or from land if it is being used solely or mainly for the purpose of primary production."

178. This clause infers that any roads on the land used for primary production only contain private roads. Moreover, the dictionary of the Road Transport (Vehicle Registration) Regulation 2007 clearly states that primary production includes: “mining for commercial purposes" in other words the registration provisions do not apply to vehicles used by opal miners as mining is defined as primary production.

179. Section 3A of the Mining Act states “to encourage and facilitate the discovery and development of mineral resources in New South Wales…" There are a number of motor vehicles commonly used in the average mining operation as the witnesses explained to the Court:

●   A work utility used to travel to and from the mine site and to carry tools, fuel and water etc;

●    a dump truck used to convey mullock (sand stone and clay stone) to and from a centralised rehabilitation stockpile and to convey potential Opal bearing clay stone tool a processing plant;

●    a 9 inch drilling rig use for exploration on designated opal prospecting blocks;

●     a 3 drilling rig use for sinking access shafts;

●    a loader use for shifting mullock/clay stone;

●    a motorbike used as an exploration tool to investigate potential Opal prospecting and mining areas;

●    mining plant such as a blower that is used to extract clay stone from the underground, mounted on a truck.

180. The evidence is that unregistered vehicles such as loaders and blowers travel infrequently off a mining title. While I accept that I have power to impose registration or licensed driving requirements in the AMP by virtue of the operation of s236D (1) (b) (ii) and (iv) of the Mining Act, I am not persuaded by the evidence (including Mr Slack-Smith and Mrs Hall’s evidence about oil leaks on their properties and/or resulting environmental damage from old unregistered vehicles and discarded parts) that there is a demonstrated need for registration of vehicles and licensing of drivers on access roads in order to preserve the safety of persons and stock and provide environmental protection. In short, there is no satisfactory evidence of environmental impact caused by unregistered and presumably un-roadworthy vehicles by unlicensed drivers on landholders’ health, land (oil spills, vehicle parts etc.) and their cattle (noise, demeanour of cattle, fumes).

181. The evidence produced by the defendants appears to relate to landholder’s concerns about miners’ operations on the claim area and, unsatisfactory rehabilitation of these areas after prospecting has finished rather than evidence of problems on access tracks. Rehabilitation of land is dealt with under other parts of the Mining Act and other environmental legislation and regulators. These proceedings are not a platform to air all of the complaints that a landholder may have against mining and prospecting more generally.

182. I accept the plaintiff’s evidence of Mr Joanne Sebastian Deisenberger at paragraphs [11] and [12] of his affidavit that his equipment (and for that matter other opal miners’ equipment) is inspected for safety under Work Health and Safety Act and that they undertake regular risk assessments and follows work safe work procedures under the Work Health and Safety (Mines and Patrol Unit Sites) Act 2013. Registration ensures minimum standards for vehicles based on yearly inspections at registration time however the Work Health and Safety Act provides a continuing duty to ensure a minimum standard for vehicles and equipment.

183. In circumstances where the landowners do not have to register their farming vehicles, tractors, quad bikes and machinery on their private property or have requisite licences the imposition of compulsory registration and licensing is an unreasonable financial impost (based on Mr Jenner and other miners’ evidence) and there is simply no evidence to support a need for it on the basis of safety or identification of vehicles given the terms of the determined AMPS and the general law. In my opinion it confers no benefit upon the landholders yet they are seeking to have imposed upon the opal miners obligations which they themselves do not carry.

184. Furthermore, I accept that it would be pointless to impose the third-party insurance component of conditional registration as they do not apply to private land. The cost of registration itself is expensive per annum and, as Mr Jenner told the Court the most substantial cost would be keeping the vehicles registrable and transporting them to inspection stations which in some cases may require the hire of a low loader. Mining tracks are generally quite rough and maintaining trucks and other vehicles to a registration standard would be onerous, expensive and does not on the evidence before me suggest that those vehicles would be regularly any safer than they currently are given the inspections carried out by the Department (Appendix A to the affidavit of Sebastian Deisenberger). Section 19 of the Work Health and Safety Act 2011 requires a person conducting a business to have primary duty of care. There is no evidence to suggest that the miners would avoid this responsibility at general law or not be in a position to settle a damages claim in the event of an accident on an access route under an AMP. Many of them own equipment and other assets which could be sold to pay a damages claim if required.

185. Mining equipment must be serviced and the evidence is that the Division of Resources and Energy check mining equipment during their regular field sweeps and issue compliance notices when necessary. The miners’ evidence is that the last field inspection at the date of the hearing (August) was in April this year and that they generally take place about 4 times a year.

186. The CPT insurance component of the permit does not cover private land and in the event that a vehicle needs to be registered for use on a public road the Motor Transport legislation and Regulations apply. If it is appropriate as the defendants submit (DWS p5, at [9]) that “…the vehicles typically used by SST holders on access roads pursuant to an AMP may be eligible for conditional registration, albeit, the evidence suggest, few, if any of such vehicles would be so eligible without significant work”. One can only assume compliance with the law unless evidence to the contrary – Ultimately, it is a matter for the police and appropriate authorities to attend to enforcement and not those responsible for the terms of an AMP. These matters do not need to be addressed in the AMPs before the Court based on the evidence before me, which is that the access roads are used safely without significant incident without requirements for registration and /or licencing being policed through the terms of an AMP.

187. Generally, the miners’ evidence is that they have access to or drive vehicles registered for use on public roads and that they carry relevant driver’s licences for those purposes. Obviously, work utilities and dump trucks and large rigs that need to travel on public roads should be registered and if not that is a matter for the police and the relevant authorities. The photographs attached to the affidavit of Helen Hall sworn on 14 March 2016 demonstrate many of the unregistered vehicles used on the claims (such as shown in photographs 17 to 21) are permanently there all year round - they are inert. While I accept that some of the vehicles that are moving across access roads to claim areas (as evidenced in some of the other photos) would not meet registration requirements for public roads – given missing windscreens, horn seat belts etc. There is no evidence to prove to my satisfaction that they are unsafe and what practical effect registration would have in circumstances when the green slip could not be relied upon in the event of an injury because the accident occurred on private property is questionable.

188. I accept that motor vehicle registration generally performs four purposes:

1. Public record means of identifying the owner of the vehicle;

2. The basis for establishing, for vehicles mandated to require inspection, that the vehicle is safe to be used in a public road;

3. Taxation mechanism for a former partial cost recovery road use expenses of government; and

4. By attachment of the requirement to hold green slip insurance, provides a statutory scheme for the compensation of persons injured in motor vehicle accidents when those accidents occur on public road.

189. Furthermore, what the mandatory registration scheme does not do is

1. require vehicles to be registered for use on private land;

2. provide any insurance protection for damage to property arising from collision with a registered vehicle;

3. compensation protection for damage to property is only available by the owner of a registered vehicle affecting either comprehensive insurance or third party property damage insurance for that vehicle; and

4. does not impose any test of vehicle road worthiness for vehicles used on private property – particularly rough access tracks.

190. Although the registration scheme ensures that relevant vehicles design standards are complied with before a vehicle is permitted to be used on a public road, there has never been a policy decision to mandate compliance with standards requiring such design standard compliance for all unregistered vehicles used on access road identified in an AMP on private property. The Halls themselves concede that they did not require such registration and insurance by their employees such as Mr Middleton and his subcontractors when they held mining titles. There is no evidence of any change in circumstances - or heightened risk to warrant the imposition of such requirement on AMPs now. I do not accept that the registration of the vehicles is necessary to prevent damage to livestock, persons or assets on the plaintiff’s properties as claimed because there is no evidence of such damage or injury.

191. Again, should different facts and circumstances arise which warrant this issue being revisited that can happen.

192. There is no evidence about significant accidents/ or even incidents on the defendants’ properties where damage has been caused to property, fauna or person by SST holders using access routes to the titles at all or in particular, arising from the fact that a SST holder did not hold requisite licences or was operating an unregistered vehicles/machinery . The incident on 6 March 2002 when Gary Griffiths whilst towing a generator was hit by one of the defendants, Mr Newton, was not on an access route as far as I understand the evidence. In any event, the police were called and Mr Griffiths agreed and did repair Mr Newton’s unregistered vehicle. The loader incident I have dealt with and need say no more. The vague references to incidents in the past are at best unreliable and too vague to support any findings of fact about accidents arising on access tracks as a result of no registration or relevant licence.

193. It seems that the defendants accept this to be the fact and their attempt to get around this ‘lack of evidence’ is by submitting that the “…the lack of evidence of incidents significant or otherwise is a result of no ability to identify the offender”. (DWS at [43]) is simply not supported by any evidence.

Findings: Issues (b) & (c) – Registration, compulsory insurance of motor vehicles, licences

194. Having regard to the above I find that there is no satisfactory evidence to support the amendment of the AMP as proposed in issues (b) and (c). On the available evidence I find that the safety of persons and/or stock or environmental protection; s236D (1) (b) (ii) and (iv) is not dependent or improved by the requirement of registration of vehicles or licencing of drivers on access tracks. No doubt this can be revisited in the future should circumstances change but for the moment I am satisfied that the determined AMPs adequately address the manner in which SST holders access their title; s236 (a) (iii) and yet still allow for the operation of relevant legislation that creates obligations for road users to have registered vehicles and licences for the operation of their vehicles.

195. The manner of identification of vehicles as provided in the determined AMPs in my opinion adequately provides the landowners with sufficient identification information about vehicles (registered and unregistered) coming onto their land on access tracks. The fact that the witnesses’ generally could not easily identify from Mrs Hall or Mr Slack-Smith the owner of a vehicle, whether it was registered or its state of repairs or its location on the property is not surprising because the photos were totally out of context and often of poor quality. Because I cannot be certain on the evidence that the vehicles photographed were located on access tracks I must give them little weight in my assessment process. Only those photos on access tracks are relevant. Access roads that have been damaged after rain - as photographed by Mr Slack-Smith ( Exhibit 7) is less likely to occur into the future given the terms of cl9 (6) of the determined AMP.

196. As noted at [17] and [176] of my judgment the parties have competing interpretations about the legal requirement for registration of mining vehicles on private roads. The longstanding position is that they are not required to be registered on private roads just like farmers. However, in the ultimate I do not believe that I need to finally determine this legal point because it is only relevant if the evidence establishes that such a requirement for vehicle registration serves a purpose within s236D which after assessment should be included as a term of the AMP when balanced against the imposition such requirements places on the miners for example: the expense, an accessibility to ongoing mechanical services in this remote area etc. The evidence does not support a finding that registration “…preserves the safety of person and stock”: s236D (1) (b) (ii) or, further “environmental protection”: 236D) (1) (b) (iv) or any order makes under s236D of relevance.

194. In the circumstances I do not need to deal with the plaintiff’s evidence about the financial impost on miners and the opal industry more generally from the defendants’ proposed changes to the AMP because these matters need only to be addressed when (if ever) there is demonstrated need for such changes based on probative evidence and not mere fear or belief of a problem.

Issue (d) - Hours of access

198. At paragraph [13] of the Chief Judge's decision he states “the appellants accepted that the Commissioner had power under section 236 D1A (iii) of the Mining Act to fix hours of access different to the hours of access prescribed by clause 45(8) of the Mining Regulations”. That said, the defendants at the hearing submit that the Regulations with respect to standard hours of access are persuasive and have a sound basis particularly with respect to safety and protection of property of the defendants and their quiet enjoyment of their property. It is contended that there is a logical nexus between maintaining the standard hours of access and the issues of insurance, registration and licensing of drivers.

199. The extent to which the SST holders are permitted to avoid these requirements it is submitted materially impact upon the risks which the defendants seek to avert or minimised by confining SST holders to the standard access hours. The defendants seek that the standard hours be inserted into the AMP is in each case. Quite rightly the defendants accept that the issue involves the balancing of interests of the landholder and the SST holders. The defendants contend that extending hours in excess of those regulated constitutes an unjustifiable interference with their right to quiet enjoyment of their property.

200. Given the nature and condition of the vehicles using the access roads which the miners concede are drivable but rough tracks, the defendants submit that the limitation of access hours they propose is “irresistible”.

201. The defendants are concerned that the moving of stock in the late afternoon along across access roads is an issue if those roads are being used by vehicles.

202. In response the plaintiff relies on the five supporting witnesses who told the Court the practical reasons why it is appropriate to fix hours of access for miners which are different to those described under the mining regulation. Apart from Ms O'Brien's evidence on behalf of opal miners five witnesses of the plaintiff supported access one hour before sunrise and one hour after sunset for the following reasons:

1. Restricting hours of access restricts the miners’ ability to mine prospect in the most favourable working hours;

2. There is no restriction on hours of operation the conditions of a mineral claim or an Opal prospecting license and the landholder has no right to restrict those operations by having such restrictions imposed into an AMP (exhibit G);

3. Lightning Ridge has a special case as summer temperatures are often very high during the day. During many days it is too hot to run machinery except early morning or late afternoon or even at night;

4. Sunset is not until 8:12pm and the last light is 8:39pm at the height of summer and sunrises at 6am in first line is at 5:35am (daylight saving EST);

5. With the hours of access unduly restricted miners and operators may find it more attractive to work at night, thus exacerbating any problems that the landowner might perceive;

6. On special occasions miners and operators may need to access the titles after dark for three particular reasons:

• If security of the title is breached or threatened or is likely to be breached, some miners have installed back to base alarm systems to mitigate against this risk;

• There are also reasons of safety involved for example, when a miner fails to return home at an expected time and his family and friends are concerned for his safety and wish to search for him; or an emergency has occurred in a team required to access the worksite after dark; and

• When a miner decides to remain on site overnight and an emergency arises at home.

203. The defendants state that they are not aware of any reason why an SST holder needs to be on the claim outside the hours of 7am to 6pm and that a SST holder cannot camp on their claim overnight. Notwithstanding that position at the end of the hearing the focus became whether - other than in case of emergency - SST holders , their servants , agents and employees and contractors should be precluded from using access roads later than 15 minutes before sunset , or earlier than 15 minutes prior to sunrise.

Findings: Issue (d) - hours of access

204. Mr Jenner gave evidence to the Court as a third-generation Opal miner at Lightning Ridge who works on the Halls’ property ‘Allawah’ that restricting the hours of work between 7am and 6pm would restrict his ability to work; and in summer he has “need to access [his] title by at least 5:30am to take advantage of the cooler weather.”

205. Similarly, Mr Deisenberger president of the Lightning Ridge miners Association, an opal miner in Lightning Ridge since about 1990 and with claims on the ‘Muttabun’ property told the Court that he is not currently restricted in the working on his titles because he can access one hour before sunrise and one hour after sunset. In summer he said he starts work as early as possible and stops during the heat of the day. He often needs to work late into the evening and said that he believes it is vital that miners’ hours of work are not restricted by unreasonable access times given the temperatures in the summer period above 40 degrees. Mr Lomax a resident in Lightning Ridge since 1962, an Opal miner and Opal buyer told the Court because of the myriad of demands on miners to continue operating, it is necessary to allow flexibility of working hours to be maintained. Opal mining is not a 9am -to-5pm job and a miner needs to be on the job in some aspect of their business virtually 24/7 to be successful. He was supportive of the hours one hour before sunrise and one hour after sunset.

206. The defendants’ fears and concerns about the safety of person, cattle and property at dusk and dawn when SST holders might be accessing their titles on an access route were simply not made out on the evidence. In fact the prospect of such an incident occurring is so small that it does not reasonably justify the limitation of hours suggested by the defendants: (DWS at [16]). The evidence given by Mr Hall in his affidavit and orally in Court about his cattle being agitated and frightened by the unpredictable movement of miners’ vehicles/machinery on his property must be considered in the context of all of the evidence (including his use of helicopters to muster cattle). It is difficult to accept on the evidence that a restriction of the hours of access as proposed will have any discernible impact on the demeanour and behaviour or safety of cattle or property or person.

207. The plaintiff’s case for flexible access hours is in my opinion made out on the miners’ evidence as outlined.

208. I am not bound by the hours expressed in the Regulations and, while they may have been formulated with Lightning Ridge in mind, there is good reason in this case to accommodate the weather and the miners’ needs to maximise their opportunities to work by providing flexible hours of access.

209. It is unreasonable to restrict the hours of access for a SSTs to their title without proper evidence of an identified need to do so. I do not accept on the evidence that the access provided in the determined AMPs constitutes an unjustifiable interference with the right of quiet enjoyment of the landholders’ property or are incompatible with the interests of safety. The traffic on the access roads has been managed to date without incident and for that reason I find that there is no basis to change the determined AMPs.

210. Accordingly, I find in respect of issue (d) that the hours of access prescribed by clause 45 (8) of the Regulations should be varied on the basis of the evidence before me. The times and terms of access remain as set out in cl 9 (11) of the determined AMP for ‘Allawah’ and ‘Sorrento’ and also imposed in the AMP for ‘Malabar’.

Fears and beliefs

211. I have no doubt that the defendants’ fears and beliefs expressed in respect of safety and recovery of damages in the event of an accident are genuine beliefs honestly held. However, on the evidence before me they are analogous to the fears and concerns dealt with in New Century Developments Pty Ltd v Baulkham Hills Shire Council [2003] NSWLEC 154 at [61]. A fear or concern without rational or justified foundation is not a matter which, by itself, can be considered as probative evidence to found the outcomes sought. Fears must be able to be objectively tested and in this case, having had opportunity to test the evidence I am of the opinion that such justified foundation and/or rational basis, is absent. These matters are adequately dealt by the terms of the AMPs as determined and more generally at law.

CONCLUSION

212. After careful consideration of all of the evidence in the context of the Chief Judge’s decision my answer to the remitted issues (a), (b) and (c) must be - “No” and, for the remitted issue (d) – the answer must be “Yes” .

213. Consequently, the AMPs determined for the properties ‘Allawah’ and ‘Sorrento’ in my earlier judgments stand unchanged subject to compliance with the direction outlined below to which the parties consented.

214. It also follows that the AMP for the Newton property ‘Malabar’ will accord with my decision upon the remitted issues (a) (b) (c) and (d).

Directions for ‘Allawah’

Matter number: 2016/00166691 (Property: ‘Allawah’)

215. The Court directs:

That the plaintiff prepare two AMPs for ‘Allawah’ consistent with my reasons for judgment in identical terms:

The first AMP to be known as “Allawah AMP No: 1” will refer to the area in Lot 1021.

The second AMP to be known as “Allawah AMP No: 2” will refer to the balance of the land for ‘Allawah’.

(This is to ensure that as a consequence of the AMP for Lot 1021 lapsing under the Act that the remainder of ‘Allawah’ has an operative AMP.)

That the plaintiff prepare the AMPs and provide them to the Court within 21 days after which time the Court will make final orders for ‘Allawah’.

The Court orders:

216. Matter number: 2016/00166705 (Property: ‘Sorrento’)

The AMP determined for ‘Sorrento’ in O’Brien v Slack-Smith Hall; O’Brien v Hall; O’Brien v Hall [2015] NSWLEC 1179 (the May judgment); and O’Brien v Slack-Smith (No 2); O’Brien v Hall (No 2); O’Brien v Hall (No 2) [2015] NSWLEC 1271 (the July judgment) is confirmed.

217. Matter number: 2016/00151825 (Property: ‘Malabar’)

Stand over the proceedings to a date to be notified to the parties by the Registrar for the delivery of judgment in which issues (a) ,(b), (c) and (d), so far as they arise in the proceedings, will be determined consistently with my determination of those issues in this judgment .

Addendum made on 10 February 2017

218. In accordance with the terms of directions in paragraph 215 of my judgment of 23 December 2016 the parties provided me with the 2 agreed AMP's for the property 'Allawah'. I am satisfied that the AMP's are consistent with my reasons for judgment.

In accordance with s236G (2) of the Mining Act 1992 I have determined the following access management plan for the property of Allawah as follows.

1. For the land known as Allawah comprising Lot 1021 DP762143 being Western Land Lease No. 2928 the access management plan is marked Annexure A to this Judgment .

2. For the land known as Allawah comprising Lot 2466 DP764429 being Western Land Lease No. 4637 the access management plan is marked Annexure B to this Judgment.

Susan Dixon

Commissioner

166691.16 Annexure A (1.17 MB, pdf)

166691.16 Annexure B (1.16 MB, pdf)

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Amendments

10 February 2017 - Addendum added 10 February 2017

27 January 2017 - Correction made to Counsel names

23 December 2016 - Amended paragraphs [7], [10] and [11].

Decision last updated: 10 February 2017