Cadman v Gow [1992] QMW 51

E_ :WARDENS COURT HELD AT STANTHORPE. 15 OCTOBER 1992. BEFORE: IN THE MATTER OF: APPLICANT: RESPONDENT: REASONS FOR DECISION. F.W.WINDRIDGE, MINING WARDEN. APPLICATION FOR INJUNCTION BY MELTON JOHN CADMAN IN RELATION TO MINING LEASE APPLICATION 50020. MELTON JOHN CADMAN. NEVILLE DOUGLAS GOW. The applicant Neville Douglas CADMAN seeks the following orders: (a) that Neville Douglas GOW, whether by himself his servants or agents or otherwise however, or by any other person associated with the company Queensland Decor Aggregates Pty Ltd ACN 011 069 284, be restrained from interfering with and obstructing the applicant from access to the area of land the subject of Mining Lease Application 50020 - Stanthorpe District for the purposes of the applicant complying with the Mining Wardens Order made in the Wardens Court Stanthorpe on 6th August 1992, that is the taking of small scale samples only and subject to the conditions contained in the said Order; and [1992] QMW 51 -- 1 of 7 -- 2 (b) for such other order as the Court may deem fit. The application was heard in the Wardens Court at Stanthorpe on 29th September 1992 when the following order was made: ORDER; Until 3 November 1992, 1. each party supply their own lock to the gate in question to allow access as and when they desire. 2. the applicant and the respondent are restrained from interfering with or preventing access by the other party to Portions 5V and 6V. 3. the provisions in determination in Stanthorpe) wherein determin e d. Clause 2 will be Plaint the 1 of 1992 rights of the 4. the question of costs be reserved. subject to the (District Court parties will be I now propose to give r e asons for the grant of that order. The applicant for this ord e r (CADMAN), with another person, is the applicant for Mining Le ase No. 50020 which is situated on Portion 6V, owned by Mr . G. W. Bradley, and etch e d in orange ma rk e r on Annexure A. -- 2 of 7 -- 3 The respondent (GOW) is a partner or has a business association with one D. J. RADDATZ through Queensland Decor Aggregates Pty Ltd. Raddatz, with another person, is the applicant for Mining Lease No. 50021, which is situated on Portion 5V, also owned by Mr. G.W.Bradley, and etched in green marker on Annexure A. Annexure Bis a computerised print out of the boundaries of both mining lease applications, as they origina lly stood. Annexure C is a plan of Mining Lease Application 50021 as it originally stood, etched in pink. From departmental records, it appears an area of 198.9 j hectares of MLA 50021 has been abandoned, and Annexure D, edged in pink,is now the application area for MLA 50021. Under the provisions of Section 7. 28 ( 1 ) ( c) of the Mineral Resources Act 1989, the Hon. th e Minister has directed the Wardens Court to hold further hearings in respect of MLA 50020 and MLA 50021, limited to specific matters as outlined in th e Reg i strars advice dated 3 July 1992 which is a condens e d copy of advices to each party by the Hon. the Minister. { see annex ure E ) . This hearing has not b ee n finali se d, but subject to an application for adjournment yet to be heard, will resume on 3rd and 4th of November 1992. In the interim the parties sought and were granted an adjournment in order to prepare for further leg a l proceedings, particularly in r e lati o n to th e matte r s on which the Hon. the Minister sought clarification. -- 3 of 7 -- 4 That order, made in similar terms for both applicants, permitted the parties to " do such things as testing, drilling and analysis as he requires to pursue his application without a Section 7.68 permit, but subject to the usual conditions of such a permit, without a security bond, as attached. A copy of the conditions, annexure F, was then forwarded to both parties by the Court. An affidavit of Neville Douglas GOW indicates that Queensland Decor Aggregates Pty Ltd has initiated an action in the District Court at Stanthorpe as Plaint No. 1 of 1992 against Melton John CADMAN. In the initial application for MLA 50020, ( by CADMAN) Raddatz was an objector on two grounds as stated in his notice of objection lodged o n 1st March 1991 . In relation to application for MLA 50021 ( By RADDATZ ), there were no objections. That is, as I understand the events, a brief history of the applications. Both applications were recommended for grant, but that grant will now await the determin a tion of the Hon. the Minister after the receipt of further evidence. That n ow brings us to th e c urrent a ppli cat ion. Mr . Cadman g a in s access to hi s lease application area ( MLA 50020) o n Portion 6V by a road whi c h runs off Foxbar Road This access, as I unde rs tand his evidence , progres se s o nly a sh ort distance into MLA 50020 on Portion 6V, but passes through a gate. -- 4 of 7 -- 5 Mr. Cadman states that he had at some stage placed a chain and lock on this gate to prevent access by unauthorised persons off Foxbar Road. Cadman states that on a certain date when he attempted to gain access he found his lock had been removed and replaced by another lock. After making some inquiry, he ascertained that the lock had been replaced by Mr. Gow. Mr. Gow , in his evidence admitted such action. Mr. Cadmans complaint is that by the Action of Mr.Gow, he was prevented from accessing his lease application area on Portion 6V and taking such samples as he deemed he requir e d. Mr. Gow indicates that he and his partner had some rights in r e lation to Portion 6V and had the right of entry at any time . Mr . Cadman disputes that right in th at the Ac t gives him exclusive rights and no other person may operate on the lease area. Section 11 .18 of the Act refers to exclusive rights . To delve into this matter any deeper will, as I have indicated a number of times, turn in to a re-hash of ev id ence th e Wardens Court has already h ea rd, intrude on wh at will probably be offered as evidence in th e District Court hearing, c loud the matter to be decid e d her e , and possibly not prop e rly involve matters on which there is to b e a separate hearing at a later date. There wer e a number of ma tter s raised by Mr. Huddleston. rt is apparen t th a t on the af fidavi t of Cadman, the date of 1 2 th September 1992 s hould read 19th Sep t ember 1 992 . Mr. Cadman has exp l ai ned that mistake as a cl er ical error and that h as be e n confir me d by the evidence. I do not think anything turns on that point. -- 5 of 7 -- 6 There was some suggestion that machinery is parked on Portion 6V , but I feel the evidence shows that machinery owned by Cadman is parked on Lot 35 which is owned by Charlie Deans ( Annexure G ) . Cadman has an agreement with Deans to enter and remove material ( Annexure H ). Lot 35 has separate access from Foxbar Road, and there is no need for Cadman to enter Portion 6V if he is ex tracting material from Lot 35. It appears that even with the gate locked, persons can walk around the gate, but not get machinery past because of obstructions. It appears that there is really no necessity to g e t machin e ry past the gate by either party, as Cadman indicates he has acceis to material for samples, and Raddatz, apart from being limited to disturbance of a certain area , has his lease located on Portion SV, some distance away from the gate. Whether Raddatz can be deemed to be an "occupier" of Portion 6V for the purpose of claiming any perceived benefit under the conditions of taking samples as handed down by the Court might well hinge on the definition of "occupier" for the purposes of the Mineral Resources Act. Only" occupi e d l and II is defined in Section 1 .8 . Mr. Huddl es ton also raised the point t hat no formal copy of the order of the Wardens Court was served on his client. As th e client ( or one of them), and his legal r eprese ntative was in Court at the time the order wa s made, it must be assumed that the client is awar e of the ord e r . Nothing turns on that point. In the fin a l analysis, there are two parties claiming exclusiv e rights to certain property. -- 6 of 7 -- 7 Litigation has been commenced and the parties are in my opinion, ultra sensitive on this issue of access. The decision of the District Court will give support to the claim by Cadman , or affirm the rights of Raddatz to certain material under the agreement with Bradley. Cadman has the right of access to take samples, by virtue of an order of the Wardens Court, and allowed for in the injunction granted by His Honour. Raddatz has a similar right. In my opini o n, Gow has n o right to prevent that access, notwithstanding that they, (Gow and Raddatz) claim some prior right by virtue of their agreemen t. It is acknowledged that the lock was removed, a s reques t ed, but I consider Cadman has the right to expect that his ac c ess is guaranteed both now and until the matt e r is finally determined. The order abov e is confirm e d. Dated at Stanthorp e thi s 15th d a y of October 1992. MINING WA RDEN. -- 7 of 7 --