The Director of Mines v Graham Van Der Wolff - [2009] SAWC 2

Wardens Court of South Australia
(District Court Administrative and Disciplinary Division)
THE DIRECTOR OF MINES v GRAHAM VAN DER WOLFF
[2009] SAWC 2
Reasons of Warden Sprod
19 November 2008
MINING LAW
PRESCIOUS STONES CLAIM
Breach of labour conditions

THE DIRECTOR OF MINES v GRAHAM VAN DER WOLFF
[2009] SAWC 2

I intend to give some ex tempore reasons for my orders. I have before me a Plaint where the Director of Mines seeks the forfeiture of Precious Stones Claim, 75211 situated at Emu Diggings Coober Pedy. This claim is inside the major working area. The regulations require the claim holder to personally mine this claim for not less than 20 hours per week.
This Plaint originally came on for hearing on 15th July 2008 when Warden Fahey heard evidence from Compliance Officer Lane, who inspected the claim on 1st April 08 and again 18th April 08. Compliance Officer Lane formed a view that the claim was not being worked in accordance with the regulations. Warden Fahey conducted a view of the claim and I read into these reasons the reasons of Warden Fahey which are contained in the file. I do not intend to repeat them. There was clearly some doubt in Warden Fahey's mind as to whether the claim holder was as he claimed working the claim in accordance with the regulations and his obligations thereunder. Warden Fahey said 'In the circumstances I propose to give Mr Van Der Wolff an opportunity to demonstrate beyond doubt that he is working the claim and I adjourn the forfeiture application to Tuesday 18th November at 11.30 am.' I interpret those words liberally because the burden of proof does not lie at the feet of Mr Van Der Wolff, rather at the feet of the Department and on the balance of probabilities rather than beyond reasonable doubt.
On the 18th November I heard further evidence from Compliance Officer Lane who since the last hearing attended the claim he said on 4 further occasions. On the first occasion he set what he described as a bench mark upon which he could judge any work on the claim. On the 4th August he again attended and he took a series of photographs. Those photographs and others taken later have been the subject of some discussion and extensive submissions by Mr Van Der Wolff this morning. Those original photographs in my view show that there had been some movements of machinery on the claim, especially as regards a small dozer and a bucket elevator. The evidence that I subsequently heard was that the claim holder was positioning the bucket elevator over a shaft with the intention of pushing material into that shaft so it could be brought up by the elevator to the surface.
On the 11th September Officer Lane re‑attended and again took photographs. They show further movement of the bucket elevator, one set of wheels of which were in the shaft, the evidence explained the miner had inadvertently backed that wheel into the shaft. Other photographs show the cut on the claim alongside that bucket elevator.
14th November he re‑attended and noted the bucket elevator was set up over the shaft, but it was in his view, not then operational.
Mr Van Der Wolff then gave further evidence and explained to the court that a pillar on the side of the cut had collapsed and he used a small bulldozer to push that material out of the cut. He said that had taken considerable time. He also informed me as he had told Warden Fahey that he continued to access his claim via a shaft on an adjoining claim and was mining underground.
I digress now to mention the other matter before me which is an application for suspension of working conditions issued by the claim holder for relief from 1st October 08 and 1st January 09 based on medical grounds. I indicated during the hearing that because the statutory holiday took effect from 15th December, I would only consider suspension of working conditions between 1st October and that date, 15th December, as thereafter the statutory holiday does not require a miner to mine until 14th March of the following year. The claim holder suffers from a condition he describes as obstructive sleep apnoea, which I understand to be a serious medical condition and he most recently underwent surgery at the Royal Adelaide Hospital on 8th August 08.
He produced during the hearing, various certificates covering the period August to December yet he told me he was back in Coober Pedy within 2 days of that operation. Today he has produced a further certificate. It concerns an examination by a medical practitioner of him yesterday and it is the doctor's opinion that Mr Van Der Wolff would be unfit to perform his normal work from 18th November 08 to 18th December 08. Unfortunately what really is just a simple certificate, gives me no assistance whatsoever as to why Mr Van Der Wolff has been so certified. I take it to be the condition that he describes as his obstructive sleep apneoa. I accept that his condition is genuine and that advisors recommended to him to effectively take it easy, he said for about three months. On his evidence however it seems he has more or less ignored that advice as while seeking suspension, he tells me that he has not only been working in the cut but also accessing his claim by the shaft that I previously mentioned. It is with interest that although he could have applied for suspension at about the time of his operation in August, he didn't apply until 13 October 08. This is surprising, because he pegged his claim from 23rd December 03 and on a number of other occasions he has been granted a suspension of working conditions. His explanation was interesting as he said he was spending a lot of time in Adelaide sorting out his health issues and I can well understand that and that is why he didn't apply until he got back to Coober Pedy. That seems to me an admission he hadn't been here working his claim as required by the regulations. While I accept the genuineness of his condition and I have considerable sympathy for anyone in his circumstances, I take the view on the balance of probabilities the application for suspension was more of an after thought, to thwart the application for forfeiture.
During his evidence he was questioned as to why all his mining mail was sent to his Aldgate address in Adelaide and not his Coober Pedy post office box. Again his answer to those questions suggested to me he may have been spending more time in Adelaide rather than Coober Pedy.
I return to the application for forfeiture. In all, Officer Lane attended the claim on 6 documented occasions. Significantly the claim holder was not present on any of those occasions. Officer Lane is an experienced Compliance Officer. He has been giving evidence of his observations for many years and from those observations, evidence in opinion form, as to whether the claims were or were not been worked within the regulations.
Today in his lengthy final submissions, Mr Van Der Wolff has been very critical not only of Compliance Officer Lane but also apparently of any number of other officers including Officer Lane's direct superior and indeed of Warden Fahey with respect to some comments that he made presumably in the course of the last hearing or the view.
Claim holder Van Der Wolff is obviously an intelligent and articulate man, who forcefully and very capably opposed the forfeiture of his claim. Not only with respect to the evidence that he gave but also with respect to his final submissions today.
I decided it appropriate to conduct a further view of the claim and I did so on the afternoon of 17th November. I made observations of a litany of machinery, including the previously mentioned bucket elevator and bulldozer. I also saw another elevator set up over the access shaft to his claim. On site was a generator that Mr Van Der Wolff started to demonstrate that it was serviceable. Mr Van Der Wolff described the presence of a bobcat which was underground on his claim, but which was not presently in service. There was also nearby a large generator to power it. He has told me today that he is capable of repairing any machinery and that all of his machinery, either works or if it doesn't presently work he is capable personally of repairing it on site. He told me that he was pushing a tunnel towards the shaft, towards the bucket elevator, using a jack and other like tools. He told me he had about 20 metres to go.
I also made observations of the cut that has been the subject of considerable comment this morning by Mr Van Der Wolff in his closing submissions. I particularly noted that side of the cut from which the pillar collapsed. There was further material at the bottom of the cut which was obviously from a more recent collapse. This is a small cut and the pillar size while not insubstantial would in my view have taken only a few hours to clear, even with a small bulldozer. As I said the regulations require not less than 20 hours work per week by the claim holder personally, not by others on his behalf. I say that because of his evidence as he mentioned others had helped him mine his claim. As far as the underground work is concerned I saw very little signs on the surface that would confirm substantial and sustained, sub‑surface activity in the nature required by the regulations.
Like Warden Fahey I have my doubts, whilst the claim holder sought to convince me he was genuinely mining his claim, not only from time to time, but for the required number of hours per week, I am afraid at the end of the day and on the balance of probabilities, I did not believe him.
I accept the evidence of Compliance Officer Lane in that regard and make the following orders: ‑
1) I refuse the application for suspension;.
2) I find the breach of the regulations as regards the working conditions, of sufficient gravity to order forfeiture. I make an order of forfeiture of this claim. However I indicate to Mr Van Der Wolff he is entitled to appeal my decision and he has one month to do so and you can lodge the appeal to Environment and Resource Development Court. You have to remove your pegs.