Cape Alumina Pty Ltd v Silverback Properties Pty Ltd [2008] QLC 92 (2008) 29 QLCR 85

LAND COURT OF QUEENSLAND CITATION: Cape Alumina Pty Ltd v Silverback Properties Pty Ltd [2008] QLC 92 PARTIES: Cape Alumina Pty Ltd ACN 107817694 (applicant) v Silverback Properties Pty Ltd ACN 067400088 (respondent) FILE NO: MRAA00079/2008 DIVISION: Land Court of Queensland – General Division PROCEEDING: Application for interlocutory injunction DELIVERED ON: 20 May 2008 [Ex tempore] DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER: Mr PA Smith ORDERS: 1. Until 4.00 pm on Thursday 29 May 2008 or earlier order of the Land Court, the respondent shall by itself and its servants or agents be restrained from hindering or preventing the applicant from conducting a flora and fauna field survey, an environmental baseline study, and an environmental study in the area of EPM 14547 and EPM 15278, substantially in accordance with paragraph 2 below. 2. The environmental study is to: (a) be conducted by the environmental scientists listed in the affidavit of Dr Messenger filed on 16 May 2008; (b) be conducted over 21 days on or before 1 July 2008; (c) include such vehicles and equipment as may reasonably be necessary for the environment study; (d) be accompanied by representatives of the traditional owners of the land; (e) include, if the respondent wishes, two observers appointed by the respondent; -- 1 of 10 -- 2 (f) include a weekly plan of the locations proposed to be visited and the survey work to be done and a copy of that plan must be forwarded to the respondent. 3. The applicant: (a) gives the usual undertaking as to damages; (b) gives a further undertaking to make good any damage which might be incurred as a result of the environmental study; and (c) gives an undertaking that, if there is any environmental harm, such harm shall be fully rehabilitated within three months of a survey being undertaken or of such harm becoming apparent, whichever is the later. 4. The costs of and incidental to this application be reserved. 5. There be liberty to apply to each party. CATCHWORDS: MINING – exploration permits – access to land – right of landholder to refuse access Practice and Procedure re – INTERLOCUTORY INJUNCTION – serious issue to be tried – balance of convenience – urgency APPEARANCES: Mr PA Freeburn SC (instructed by Clayton Utz, Lawyers), for the applicant Mr W Cochrane (instructed by McColm Matsinger, Lawyers), for the respondent Background [1] On 8 May 2008, Cape Alumina Pty Ltd (the explorer) lodged an application in this Court seeking various orders against Silverback Properties Pty Ltd (the landholder) relating to the explorer’s conduct of exploration activities on the landholder’s property. The orders sought by that application are as follows: “(a) a declaration that a Notice of Entry may be given pursuant to s 163 of the MRA by the applicant as holder of EPM 15278 and EPM 14547 and the effect of which is to permit the applicant to enter onto the lands the subject of the exploration permits without further recourse to the respondent; (b) A declaration that subsequent renewals of a notice of initial entry may be given pursuant to s 164 of the MRA by the applicant as holder of EPM 15278 and EPM 14547 and the effect of which is to permit the applicant to enter onto the lands the subject of the exploration permits without further recourse to the respondent; (c) An injunction restraining the respondent from any conduct which may inhibit the lawful exercise of the applicant’s rights of access pursuant to EPM 15278 and EPM 14547; and (d) The respondent pay the applicant’s costs of and incidental to the application.” -- 2 of 10 -- 3 [2] The landholder opposes the orders sought by the explorer, and the matter has been listed for hearing before this Court on Thursday 29 May 2008. Interlocutory Application [3] On 16 May 2008, the explorer filed an application for interlocutory injunctions, specifically seeking the following orders: “1. Until 4.00pm on Thursday 29 May 2008, or earlier order of the Land Court, the Respondent, by itself and its servants or agents, be restrained from hindering or preventing the Applicant from conducting a flora and fauna field survey and environmental baseline study (the “Environmental Study”) in the area of EPM 14547 and EPM 15278 substantially in accordance with paragraph 2 below. 2. The Environmental Study is to: (a) be conducted by the environmental scientists listed in the affidavit of Mr Messenger filed on 16 May 2008; (b) be conducted over 21 days on or before 1 July 2008; (c) include such vehicles and equipment as may reasonably be necessary for the Environmental Study; (d) be accompanied by the traditional owners of the land; (e) include, if the Respondent wishes, an observer appointed by the Respondent; (f) include a weekly plan of the locations proposed to be visited and the survey work to be done, and a copy of that plan must be forwarded to the Respondent. 3. The Applicant: (a) gives the usual undertaking as to damages; (b) gives a further undertaking to make good any damage which might be incurred as a result of the Environmental Study. 4. The costs of and incidental to this application be reserved. 5. Such further or other orders as the Court deems necessary.” [4] The interlocutory application was heard before me today. Background facts [5] The Court has had before it evidence from three people, Messrs Messenger, Lyon and Witherspoon. Dr Messenger is the CEO of the explorer and has provided four affidavits as well as oral testimony today. His evidence was clear and direct. I find him a credible witness. Both Mr Lyon and Mr Witherspoon have provided affidavits on behalf of the landholder. Save for some aspects of Mr Witherspoon’s affidavit on which I have already ruled, the affidavit evidence has not been challenged. Neither person was required for oral evidence. [6] For the purpose of determining this matter, a number of facts can be briefly stated. The explorer holds exploration permits number 14547 and 15278. It is not in dispute between the parties that both exploration permits are current. EPM 14547 is located almost entirely within the landholder’s property, while EPM 15278 is located only partly within the property. -- 3 of 10 -- 4 The landholder’s property is known by two names, Bertiehaugh Station and Steve Irwin Wildlife Reserve. The property is located in a remote region of north-western Cape York. Reasons for urgency [7] It is the explorer’s evidence that as part of its exploration activity it needs to conduct various environmental studies including what can be loosely termed a wet season environmental study. It is also the explorer’s evidence that a dry season study has already been conducted. The study proposed by the explorer is essentially a flora, fauna survey. The explorer claims that such survey is urgent as if it is not conducted within the next few weeks it will have to be delayed until the next wet season next year, which will put the explorer’s development program back by 12 months. The explorer claims that the survey will have very limited, if any, impact on the property. [8] The landholder has an entirely different view of the activity to be undertaken by the explorer. The landholder’s evidence is that prevailing conditions as they exist on the property at present would prevent any such survey being undertaken. There is also evidence that, should an attempt to be made to undertake such a survey, there is a risk of environmental damage. The landholder is also concerned as to the safety of any persons who would seek to undertake a survey on the property at this time. Additionally, the landholder says that it is already too late in the season to undertake a proper wet season survey, as such a survey should be undertaken at the height of the wet season, not at its very end. [9] For the purposes of this interlocutory application I am prepared to accept that the property is experiencing the effects of the wet season but that such effects are quickly diminishing. This has two consequences. [10] Firstly, areas of the property are likely to be boggy. Therefore, there is some risk to both the property and to those persons undertaking the survey. Secondly, relying on the evidence of Dr Messenger, the explorer is required to undertake a wet season survey, which would apparently, by logic, only be possible at wet times when conditions would be boggy. Therefore, on the evidence it would appear that the window of opportunity for such a wet season survey this year is fast closing. -- 4 of 10 -- 5 Principles to be applied [11] There are two principles to be applied in determining this application, and both have been properly referred to by counsel. Those principles are, firstly, is there a serious question to be tried and, secondly, where is the balance of convenience. As Gibbs CJ said in the case of State of Queensland v. Australian Telecommunications Commission:1 ‘In deciding whether to grant an interlocutory injunction the first question for the court is whether there is a serious question to be tried: see Australian Coarse Grain Pool Ltd v Barley Marketing Board (1982) 57 ALJR 425, 46 ALR, 398; Tableland Peanuts Pty Ltd v Peanut Marketing Board (1984) 58 ALJR 283, 52 ALR 651 and Epitoma v AMIEU (1984) 54 ALR 730. That question having been answered in the affirmative, it is then necessary to consider whether the balance of convenience is in favour of the grant or refusal of the injunction.” [12] In this particular case it is not in dispute between the parties that there is a serious question to be tried. Accordingly, I do not consider it appropriate to enter into great detail at this stage regarding the nature of the serious question to be tried, as that is a matter more properly to be dealt with at the final hearing of this matter. [13] I now turn to the balance of convenience. Mr Freeburn and Mr Cochrane are both at odds as to the nature of the application, the difference being whether this is an interlocutory injunction as expressed by Mr Freeburn for the explorer or a mandatory interlocutory injunction as asserted by Mr Cochrane. I accept the submissions of Mr Cochrane that there is a distinction as between the two. [14] In the present circumstances I favour the view as submitted by Mr Freeburn that the application is more in the nature of an interlocutory injunction than a mandatory interlocutory injunction. That said, however, there are elements to the orders sought which do envisage some positive action by the landholder, be it to simply unlock the property gate or to actually accompany the scientists. [15] As Mr Cochrane said in his submissions at paragraph 9, the discretion which must be exercised by a Court in granting a mandatory interlocutory injunction was considered by Hoffman J. in Films Rover International Ltd v. Cannon Film Sales Ltd.2 His Honour said: “I think it is important in this area to distinguish between fundamental principles and what are sometimes described as ‘guidelines’, ie useful generalisations about the way to deal with the normal run of cases falling within a particular category. The principal dilemma about the grant of interlocutory injunctions, whether prohibitory or mandatory, is that there is by definition a risk that the court may make the ‘wrong decision’, in the sense of granting an injunction to a party who fails to establish his right at the trial (or would fail if there was a trial) or alternatively, in failing to grant an injunction to a party who succeeds (or 1 [1985] 59 ALJR 562 @ 563. 2 [1986] 3 AIIER 772 @ 780-1. -- 5 of 10 -- 6 would succeed) at trial. A fundamental principle is therefore that the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been ‘wrong’ in the sense I have described. The guidelines for the grant of both kinds of interlocutory injunctions are derived from this principle.” [16] In the case at hand, therefore, where does the balance of convenience rest? As I indicated during submissions, this matter is a clear case of a clash of rights between rights enjoyed by the landholder under its pastoral lease and the rights of the explorer under the exploration permits. [17] This is not the first time I have had to consider interlocutory injunctive relief in such circumstances. As I indicated in the case of Colonel v New Acland Coal Pty Ltd,3 what can be viewed in these cases at times is a clash described as between God and Mammon. That was a phrase used by His Honour Owen J in the case of Jagween and Others v the State of Western Australia and Others4 in 1994, where His Honour said: “On one view of it, this is a classic clash between God and Mammon. The economic interests of a commercial enterprise are set against the spiritual and cultural life of a section of the community. Of course, it is not that simple. Both sets of interests are entirely legitimate and deserving of the most careful consideration by the courts. The ultimate question is whether the plaintiff will, or are likely to suffer irreparable injury or harm if, as a result of refusal of interlocutory relief, the park proceeds.” [18] In Colonel I made the comment on record that I did not doubt in any way the bona fides of both the parties in that case in both bringing and resisting the application for interlocutory relief. Quite a similar observation is apparent in this case. [19] Whilst the Colonel case involved cultural heritage rights of an indigenous group as opposed to the rights of a large miner, this case is not dissimilar in that it is a clash between commercial interests of an explorer seeking no doubt to proceed at some stage to a mining lease and extraction of bauxite and that of a company whose clear interest is in conservation and protection of flora and fauna. [20] It is also appropriate in this case that I note in similar vein the interests of the two parties insofar as they interrelate. Firstly, the explorer is acting, as I have already indicated, under statutory rights under the Mineral Resources Act 1989. The MRA, by its terms, states that a clear intention of the Act is to promote the exploration for and winning of minerals in this state. As such, it is an important piece of legislation, and indeed the economy of the state has been said to ride on the back of the current mineral resources boom that the state is 3 [2002] QLRT 13 @ 38. 4 Supreme Court of Western Australia, Owen J, 4 February 1994. Unreported. -- 6 of 10 -- 7 experiencing. However, that has to be taken in conjunction with the other very important aspects of the MRA that refer to the environmental harm and damage which may flow from mining. [21] There could be no clearer example of such a clash coming to the fore than in a property owned by a company which, whilst on its face it could be viewed as nothing more than a simple pastoral property, that would be an inappropriate assumption for the Court to make at this time, and the Court does take on notice that the landholder is holding the property as a result of a special grant or grants that occurred from government to result in the purchase of the property last year, and that the property is known at least in many circles already as the Steve Irwin Wildlife Reserve. Of course, little more needs to be said regarding the nature of the place that Steve Irwin holds in Australian society and his untimely death. [22] Having set out the relevant facts in this matter, and considered the law as expressed by counsel, which at the end of the day is not overly in dispute, it then turns to me to balance the conflicting interests of the two parties in this matter. In doing so, I have a number of concerns. Firstly, it could be said that dealing with this matter today by way of interlocutory injunction is unnecessary as the Court will be hearing this matter in a final form as early as Thursday of next week, a period of a bare nine days from today. However, litigation being what it is, the fact that the hearing of the final matter is listed to commence on Thursday week does not mean that a decision will be handed down next Thursday. In fact, apart from matters of urgency, such as this interlocutory application, it is the normal process for at least a number of days, if not a number of weeks, to transpire before a final decision is handed down. [23] Certainly, given the nature of the conflict of law as set out by the counsel for each party and for fact that the issue as to the rights that may be exercised by explorers in this state has not as yet been determined by the courts, nor has a determination been made as to the effectiveness or otherwise of access notices by explorers to private lands, one could well appreciate that parties may both require some time to provide their final submissions to the Court in this matter, and the Court may require some time to consider those submissions. This point is important because, as I have already indicated, I do accept that there is a narrow window of opportunity for the explorer to undertake a wet season survey. Even in this regard there has been some conflict between the parties as to Dr Messenger’s evidence. -- 7 of 10 -- 8 [24] I note from the draft transcript, which I have been provided with, that Dr Messenger was asked the question that follows:5 “Dr Messenger, you can’t sit there with your hand on your heart and tell the Member that you are going to suffer grievous damage if this entry, if you are permitted, if this entry onto the property is delayed until the end of May, are you?—No, I would disagree with that. It’s important for us to get access to that property as soon as possible. And that first access, I imagine – sorry, that first access will be by our operations manager, Mr Tibaldi, to determine the condition of the land, which nobody seems to know at the moment, given all of the affidavits that have been presented, to determine how and when the most appropriate time would be to establish a camp and to conduct that survey, given our requirements under the EPA.” [25] Mr Cochrane has rightly pointed out various provisions of the MRA which show the quite onerous requirements on an explorer to reduce the number of sub-blocks within an exploration permit over a relatively short period of time. It is therefore important for explorers not to be delayed in the undertaking of their activities. I can well appreciate the concern that Dr Messenger says about the very real damage which his company may suffer should the orders that he seeks not be granted. [26] On the other hand, I have to look at the potential damage that the respondent may suffer should the injunction be granted. Were this an application for an interlocutory order that sought drilling or major exploration activities to be undertaken on the property, then in my view the balance at this point would tip in favour of the respondent. However, as the activities to be undertaken are in the main what I would class as non-invasive in primarily being concerned with viewing and observation of flora and fauna as well as 10 per cent of other activities, which although undefined would consistently fall within those normally undertaken by an environmental study and therefore not, I expect, be overly invasive, I have reached the conclusion that the balance, though a fine balance, does tip in favour of the explorer in this matter. I therefore propose to issue orders as sought by the explorer, save for some amendments. [27] Firstly, it is my view that it would be appropriate, in addition to the undertaking as to damages, to specify in the orders that, if there is any environmental harm occasioned by the activities of the explorer, that such harm be fully rehabilitated by the explorer within a relatively short timeframe. I have in mind something of the nature of three months after entry by the scientific team. 5 See Transcript 20 May 2008. -- 8 of 10 -- 9 [28] There are two other areas of concern as regards the orders sought. One relates to whether or not the respondent wishes to be involved with the scientific study as envisaged by the orders or whether the respondent is content for the order to rest in the manner in which it is currently drafted. [29] And, finally, that relating to the traditional owners of the property. The order as currently worded is too vague in simply referring to a group of people and I require more substance as to the nature of access that is being sought for traditional owners in that regard. I will hear from Counsel. [30] [Following further submissions from Counsel, the following orders were made:] Orders 1. Until 4.00 pm on Thursday 29 May 2008 or earlier order of the Land Court, the respondent shall by itself and its servants or agents be restrained from hindering or preventing the applicant from conducting a flora and fauna field survey, an environmental baseline study, and an environmental study in the area of EPM 14547 and EPM 15278, substantially in accordance with paragraph 2 below. 2. The environmental study is to: (a) be conducted by the environmental scientists listed in the affidavit of Dr Messenger filed on 16 May 2008; (b) be conducted over 21 days on or before 1 July 2008; (c) include such vehicles and equipment as may reasonably be necessary for the environment study; (d) be accompanied by representatives of the traditional owners of the land; (e) include, if the respondent wishes, two observers appointed by the respondent; (f) include a weekly plan of the locations proposed to be visited and the survey work to be done and a copy of that plan must be forwarded to the respondent. 3. The applicant: (a) gives the usual undertaking as to damages; (b) gives a further undertaking to make good any damage which might be incurred as a result of the environmental study; and (c) gives an undertaking that, if there is any environmental harm, such harm shall be fully rehabilitated within three months of a survey being undertaken or of such harm becoming apparent, whichever is the later. -- 9 of 10 -- 10 4. The costs of and incidental to this application be reserved. 5. There be liberty to apply to each party. P A SMITH MEMBER OF THE LAND COURT -- 10 of 10 --