Stojkovic v Buck - [2016] SAWC 2

Wardens Court of South Australia
(District Court Administrative and Disciplinary Division)
STOJKOVIC v BUCK
[2016] SAWC 2
Judgment of Senior Warden Dr Cannon
11 April 2016
ENERGY AND RESOURCES - MINERALS - COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS - SOUTH AUSTRALIA - WARDEN'S COURT
Opal Mining Partnership Dispute

STOJKOVIC v BUCK
[2016] SAWC 2

I have heard the evidence, this is now my judgment in this matter. This was an ex tempore judgment late in the day and I have edited it as to grammar and syntax.
There are two matters, one is the minor civil claim. I have noted that in my view that is in the wrong jurisdiction, because that is a partnership dispute in the sense that should be in the Supreme Court. Be that as it may, I am importing the pleadings in that dispute into the jurisdiction that I clearly do have sitting as a mining warden under the Opal Mining Act 1995. So no one is deprived by that lack of jurisdiction in the minor civil action.
I am dealing with a partnership in the sense that word has in long tradition, long experience, many cases and which is recognised in s.72 of the Opal Mining Act 1995.
I paraphrase the Act. The Wardens Court has jurisdiction to determine a monetary claim in relation to a contract partnership or joint venture arrangement related to or associated with the acquisition of any mining tenement or a precious stones prospecting permit and the performance of mining operations under the Opal Mining Act 1995.
These partnerships, which are common in the opal fields, are not partnerships in the traditional sense known to common law and brought into statute law through the Partnership Act 1891. They are loose contractual arrangements for the pursuit of opal mining.
Central to one of the aspects of Mr Buck’s claim is that he had entered a partnership with Mr Stojkovic in 2012 and it was of general application to all their commercial activity.
I reject that. They entered a partnership purely for the purpose of opal mining.
There are several disputes here, I do not summarise the evidence, everyone sat through it, but I turn to the key parts.
Mr Stojkovic brought machinery to the opal mining partnership and he paid expenses. Mr Buck provided his labour. Mr Buck received 25%, Mr Stojkovic 75%. It is in dispute whether the expenses that have been incurred by Mr Stojkovic came out before that division of 75/25 or whether Mr Buck got his 25% off the top, so as to speak; in other words 25% before any deductions for expenses. I will return to that at the end.
The tunnelling machine had broken down, it had been repaired and Mr Stojkovic was asked to do some work in the Opal Quest mine. Opal Quest is not an opal mine as such. It was originally within the Precious Stones Prospecting Field. It was operated as a tourist mine by a schoolteacher and other partners. It was plainted for forfeiture and many years ago I adjourned that plaint for forfeiture while the claimholders pursued an application to the relevant Minister at the time to excise the Opal Quest mine from the Precious Stones Prospecting Field.
I did not actually make the decision to excise it, I merely gave the Minister the opportunity to do so by preserving it and the Minister excised it from the opal Field.
So it is that it has operated since as a tourist mine, not an opal mine for the purpose of mining. Because it is not on the Precious Stones Prospecting Field it could not be operated as a mine unless the appropriate notices of entry to any pastoral leasehold or other relevant person and native title issues were dealt with. It follows that when tunnelling on that one is operating in a commercial operation not a mining operation.
It follows, from my conclusion at the beginning, that the nature of this partnership did not cover the work that was done by Mr Stojkovic on that Opal Quest claim. Even if it did, Mr Buck believes that Mr Stojkovic received money for the work, but there is no evidence to support that. The evidence I have is that he was returning a favour and he was paid purely for the diesel as and when required and it may have been of the order of $3000 worth of diesel. That would suggest enough diesel for 500 or so feet of drive to create two rooms underground and none of that proves any claim by Mr Buck because it was outside the mining partnership and Mr Stojkevic was not paid for it. That aspect of the claim must fail.
Then the core question is the expenses and whether they are off the top. Now in support of the fact they are off the top, Mr Buck has kept an historic spreadsheet record, including a record of expenses and it is hard to see why he would do that if expenses were irrelevant to him.
Based on that, Mr Buck then says that because the expenses come out of and reduce his entitlement that any compensation for expenses such as the diesel rebate should be assessed as income for the partnership and he should get his 25% of that, and that forms another part of his claim.
He also claims money, in effect, as an accountant for assisting Mr Stojkovic for filing his diesel rebate returns and he also claims for the use of his vehicle because Mr Stojkovic’s vehicle that he should have supplied to go out to the claim broke the clutch and so then they used Mr Buck’s vehicle. In effect he says ‘Well I’m the one who has no obligation to provide equipment, I’m providing equipment, I should be compensated.’
MR STOJKOVIC: Apparently it is not just the clutch, it is the whole motor.
WARDEN: And Mr Stojkovic says the damage was more than the clutch.
Mr Stojkovic’s rejoinder for that is that the clutch was broken on an occasion of use while he was away from Coober Pedy when it should not have been used but Mr Buck says ‘He left the keys with me and I was always entitled to use it’.
And then of course, we have the rebate. My understanding from the spreadsheet figures is that in addition to 25% of the rebate there was also an underpayment according to Mr Buck’s calculations.
Against the conclusion that the keeping these records from 2013 when they started up until last year implies that they are correct, is that no complaint was made about the underpayments until the parties fell out early this year. That arose over the claim made for the Opal Quest work that I have covered. There is one other aspect I have not covered and that is when some Japanese came through and they went down the mine. They did some filming and they paid some money to Mr Stojkovic’s wife for entertaining them for dinner on several occasions. Mr Buck attended the dinners as well and Mr Buck says that they must have paid money for the filming they did on the mine. Mr Stojkovic denies that they paid money and says he did it for goodwill to advertise Coober Pedy.
It is clear that if Mr Stojkovic made money by letting them view a mining operation conducted within the mining partnership, Mr Buck would entitled to money for that.
My finding is on the balance of probabilities and the onus of proof lies on Mr Buck. I am not convinced that the partnership here was ever anything other than the 25% off the top. I add that Mr Stojkovic gave evidence that Mr Buck was paid the 25% off the top of all the opal recovered over the four years of the partnership. If there was a complaint to be made about how much money he was getting on the way, on these oral partnerships like this, the parties should make those complaints as they go along and not store them up to the end because for me to be satisfied on purely oral evidence of what has happened with cash transactions is difficult. I am not convinced that Mr Buck is owed anything and I dismiss his claim.
Accordingly, I now discharge the injunctive orders restraining Mr Stojkovic from retrieving his equipment and I specifically authorise him to retrieve the equipment from the claim registered in Mr Buck’s name. How long do you need to organise that?
MR STOJKOVIC: He needs to hire a crane, he needs to see when it’s free but he can start organising something tomorrow.
WARDEN: And long does he need?
MR STOJKOVIC: When I get the crane, two hours.
WARDEN: No, how long will it take for him to organise it, go out there, do the job and be out of Mr Buck’s claim?
MR STOJKOVIC: One week to be on the safe side.
WARDEN: You have got 10 days to do it from today.
There is a right of review in the small claim matter in the District Court; you have 21 days to exercise it. In the Warden’s Court matter there is a right of appeal to the ERD Court, which is part of the District Court Registry and I think you have got 30 days to exercise that but again, you should, if you want to keep the injunctive order over the equipment, do so forthwith.
Mr Stojkovic you are not to go and get your equipment before Thursday, all right? You are not to go and get your equipment before Thursday, so that if he wants to appeal, he can get the papers out tomorrow and let you know on Wednesday.
Each party can pay their own costs. The exhibits will be available for collection at the end of the appeal period. The court is adjourned, thank you.
ADJOURNED 5.21 P.M.