MURNIK v Shire of Dandaragan - [2004] WASC 243

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: MURNIK & ANOR -v- SHIRE OF DANDARAGAN [2004] WASC 243

CORAM: MASTER SANDERSON

HEARD: 28 SEPTEMBER 2004

DELIVERED : 23 NOVEMBER 2004

FILE NO/S: CIV 1657 of 2004

BETWEEN: ANDRES MURNIK
First Plaintiff
RONALD BARRY MAINWARING
Second Plaintiff
AND
SHIRE OF DANDARAGAN
Defendant

Catchwords:

Practice and procedure - Application for leave to bring action against Local Authority - Turns on own facts

Legislation:

Limitation Act 1935, s 47A

Local Government Act 1995, s 3.2

Mining Act 1978, s 6(2)(a)(i), s 112(1)

Result:

Leave granted

Category: B

Representation:

Counsel:

First Plaintiff                :     Mr N P Dobree
Second Plaintiff            :     Mr N P Dobree
Defendant:     Mr I R Freeman

Solicitors:

First Plaintiff                :     Hoffmans
Second Plaintiff            :     Hoffmans
Defendant:     Phillips Fox

Case(s) referred to in judgment(s):

Matheson v Commissioner of Main Roads & Anor (2001) 25 WAR 269
Victorian Railways Commissioner v Cassaccio (1961) VR 157

Case(s) also cited:

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
City of Gosnells v Roberts (1991) 74 LGRA 1
Homebase Management Pty Ltd v The City of Subiaco [2000] WASC 212
Howe v City of Nedlands & Anor, unreported; SCt of WA; Library No 980128; 23 March 1998

MASTER SANDERSON: By originating summons dated 11 May 2004, the plaintiffs sought an order that:
"Leave be granted to the Plaintiffs to bring an action against the Defendant for damages ('the prospective proceedings') for the unauthorised removal of shell grit from the Plaintiffs' Mining Lease 70/632 on or about 28 August 2001, at any time before the expiration of six years from the date of the said removal."
The prospective defendant is a local authority pursuant to the provisions of the Local Government Act 1995. Before proceedings can be issued against a local authority such as the prospective defendant, two preconditions need to be met. First, the prospective plaintiff must give notice of the action in writing to the prospective defendant, and secondly, the action must be commenced before the expiration of one year from the date on which the cause of action accrued: see s 47A(1)(a) and (b) of the Limitation Act 1935. The plaintiffs have failed to comply with these preconditions and they now require leave of the Court to commence proceedings. The requirements that the plaintiffs need to satisfy in order to obtain leave under s 47A(3) of the Limitation Act was set out by Murray J in Matheson v Commissioner of Main Roads & Anor (2001) 25 WAR 269 at 274. The requirements are:
(1)The delay must be occasioned by mistake or other reasonable cause;
(2)Alternatively, there must be an absence of material prejudice to the prospective defendant in its defence by reason of the delay; and
(3)If one of the above preconditions is satisfied, then the Court has a discretion to grant leave if it is just in the circumstances to do so.
In this case it was conceded by the prospective defendant that it was not materially prejudiced in its defence by reason of the delay. The question then is whether or not it is just in the circumstances to grant the plaintiffs the leave they seek.
The facts are not in dispute and can be briefly stated. The plaintiffs are the holders of mining lease 70‑632, which was granted to them on 27 November 2000. The mining lease is located near Jurien Bay. The lease is located within the prospective defendant's shire. In 1995 a company known as Innovative Services (WA) Pty Ltd was contracted by the Department of Conservation and Land Management and the prospective defendant as the project manager for the removal of certain unauthorised beach shacks from the Jurien Bay and Lancelin areas. In or about August 2001 an officer of the prospective defendant, Peter Colin Taylor ("Taylor") attended an area called Squatters Reserve within the locality of the prospective defendant, with Stephen Lawrence Meyerkort ("Meyerkort"), the principal director of Innovative Services (WA) Pty Ltd. Squatters Reserve was an area that contained numerous unauthorised holiday and fishermen shacks. Taylor and Meyerkort visited a landfill site in the vicinity of Sandland Island Road. This area was a landfill site and was being used for the disposal of the remnants of the shacks removed from Squatters Reserve. To access the landfill site from the Squatters Reserve area, it was necessary to drive along an access road. This access road which, it appears, was unnamed, was a sand road and it was, at the time, in poor condition. Also accompanying Taylor and Meyerkort were Steven John Rowe ("Rowe"), the defendant's works foreman and perhaps one or two other persons.
As the party were travelling along the access road they passed an area which contained shell grit material. One or other of the party, probably Taylor, directed Rowe to remove a quantity of shell grit material and to deposit it on the access road with a view to improving its condition. This was done. It seems that approximately 270 tonne of shell grit was removed and applied to the access road. It is common ground that the shell grit was taken from the plaintiffs' mining lease. It was also common ground that the plaintiffs were not notified of the defendant's intention to take the shell grit and, accordingly, the plaintiffs did not authorise its removal. The plaintiffs now wish to bring an action against the defendant for unauthorised removal of the shell grit.
The principles which apply to an application such as this were not in dispute between the parties. They were set out in Victorian Railways Commissioner v Cassaccio (1961) VR 157 at 160. Leave will not be granted when the claim is obviously "speculative or absurd". Put more colloquially, leave will not be granted if the prospective claim is a "try on". The plaintiffs are not required to show that they have a prima facie case. It is not necessary for a plaintiff to establish that his case is such that it would survive an application by the defendant for summary judgment.
At first glance it may seem that the defendant, faced with the admitted facts and the low threshold test, stood little or no chance of resisting this application. But resist it they did - and with great vigour. The defendant's starting point was s 3.27 of the Local Government Act. That section is in the following terms:
"A local government may, in performing its general function, do any of the things prescribed in Schedule 3.2 even though the land on which it is done is not local government property and the local government does not have consent to do it."
Schedule 3.2 of the Local Government Act authorises a local government to:
"… Take from land any native growing or dead timber, earth, stone, sand, or gravel that, in its opinion, the local government requires for making or repairing a thoroughfare, bridge, culvert, fence, or gate."
Section 3.27 does not require the consent of the owner for removal of such material. It was argued by the defendant that if no consent is required from the owner for the removal of any of the material mentioned in sch 3.2, then it follows that there can be no requirement for the local authority to give notice to the owner of the land that it intends to remove the material. In my view, leaving aside the requirements of what might be described as common courtesy, that submission is clearly correct.
Counsel went on to support his submission on this point, if more support was needed, by reference to the Mining Act 1978. Section 6(2)(a)(i) of the Mining Act provides that:
"6. Operation of this Act
(1)…
(2)Notwithstanding anything in this Act -
(a)a local government is not required to hold a mining tenement to -
(i)exercise the power given to it by section 3.27 of, and clause 3 of Schedule 3.2 to, the Local Government Act 1995; …"
Further, s 6(2)(a)(ii) of the Mining Act allows a local government to remove "rock, stone, clay, sand or gravel for use in the construction of local government facilities from local government property (as defined in the Mining Act) without a mining licence." Section 112(1) of the Mining Act provides that:
"112. Reservation in favour of Crown on prospecting licence or exploration licence to take rock, etc.
(1)Subject to subsection (2), every prospecting licence and exploration licence is subject to a reservation in favour of the Crown and any person authorised thereby of the right to enter thereon and remove therefrom rock, stone, clay, sand or gravel for use for any public purpose or for use in any prescribed work or undertaking."
That being so, it was submitted that the defendant's removal of material from the plaintiffs' mining lease is authorised by the Local Government Act if:
(1)The material is removed from land;
(2)The material removed is timber, earth, stone, sand or gravel;
(3)The material removed is used to make or repair a thoroughfare, bridge, culvert, fence or gate; and
(4)In its opinion, the local government requires the material to make or repair a thoroughfare, bridge, culvert, fence, or gate.
Three of these requirements do not cause any difficulty. First, the material was clearly removed from land. The term "land" is not defined by the Local Government Act. There is a definition in the Mining Act but it is, for present purposes, unhelpful. What is clear is that upon the grant of a mining lease the area covered by the lease does not cease to be "land". Such a conclusion would be inconsistent with the reservation contained in s 112(1) of the Mining Act.
There is also no difficulty with concluding that the shell grit was removed "to make or repair a thoroughfare". "Thoroughfare" is defined in the Local Government Act as:
"a road or other thoroughfare and includes structures or other things appurtenant to the thoroughfare that are within its limits, and nothing is prevented from being a thoroughfare only because it is not open at each end."
It is true that the access road in this case was unnamed, and it was not a gazetted road. However, it was open to the public and it provided public access to the rubbish tip. It was clearly a thoroughfare within the meaning of the Local Government Act.
There can also be no doubt that the local government required the material to repair the thoroughfare. The access road was in poor condition and it was being used in the course of the demolition of the shacks at Settlers Ridge. Even if it were to be assumed that the decision of the defendant had to be, in all the circumstances, reasonable, it is clear that requirement was satisfied. In my view, the defendant's position on this point, as with the previous two points I have mentioned, is unanswerable.
That then leaves the question of whether or not the material taken falls within the terms "earth", "stone", "sand" or "gravel". None of these terms is defined in the Local Government Act. It is the defendant's position that properly considered, the shell grit is "gravelly sand". In support of this proposition the defendant relied upon an affidavit of Stuart Turner Brodie ("Mr Brodie"), sworn 1 July 2004. Mr Brodie is the laboratory manager of Materials Consultants Pty Ltd. Materials Consultants Pty Ltd carry on business as an independent testing laboratory. They conduct tests on a variety of materials including sand. In his affidavit, Mr Brodie refers to Australian Standard 1726-1981, which is the Australian Standard for site investigations. In that standard, sand is defined as "unconsolidated, non‑cohesive accumulation of detrital material composed usually of grains of quartz. In particle size analysis material of sand grade is taken as that between 2.0 mm and 0.06 mm." Mr Brodie deals in some detail with what amounts to fine, medium and course sand and what might properly be regarded as gravel. He goes on to say that in May 2003 he was provided with a sample from an area which he refers to as the "Greenhead Pit". He found that the sample contained 32 per cent shell material and 68 per cent sand material. He therefore concluded that the material taken from the plaintiffs' leases was properly described as gravelly sand.
In answer to this evidence, the plaintiffs relied upon an affidavit of Steen Elias Kristensen ("Mr Kristensen") sworn 30 August 2004. Mr Kristensen is the principal of Sandiman Associates. He is a consultant geologist with academic qualifications and considerable practical experience. In preparing his report, Mr Kristensen had the benefit of reading the report prepared by Mr Brodie. Mr Kristensen concludes that if the material is unconsolidated, it can be characterised as calcareous gravel. If it is consolidated, it might more properly be described as limestone. As an alternative, the material might be described as calcareous conglomerate. In the end, Mr Kristensen does not settle on any one of these three alternatives.
It is clear that there is a conflict on the evidence between Mr Kristensen and Mr Brodie. By implication at least, Mr Kristensen is not of the view that the material taken from the plaintiffs' mining lease could be defined as "earth", "stone", "sand" or "gravel". In my view, this is an issue between the parties and it cannot be said the proposed plaintiff's action is "speculative or absurd" or "a try on". There is a real issue between the parties.
For these reasons I would grant leave to the plaintiffs to bring their action. The defendant did submit that if leave was to be granted it should be conditional upon the action against the defendant being taken with respect to conversion and breach of s 155(4) of the Mining Act. I am not satisfied that such a restriction should be imposed. In my view there is limited scope for the plaintiffs to bring this action. At this stage I would not presume to limit the way in which they may approach the matter.
I will hear the parties as to the precise form of orders and as to costs.