Intermin Resources Ltd v North Concrete Pty Ltd [2004] NTSC 35

PARTIES:	INTERMIN RESOURCES LTD

	v

	NORTH CONCRETE PTY LTD

TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:	SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction

FILE NO:	93/2004 (20416302)

DELIVERED:	3 August 2004

HEARING DATES:	26 July 2004

JUDGMENT OF:	THOMAS J

REPRESENTATION:

Counsel:
	Appellant:	S Southwood QC with C Ford
	Respondent:	C McDonald QC with L Silvester

Solicitors:
	Appellant:	Cridlands
	Respondent:	Povey Stirk

Judgment category classification:	C
Judgment ID Number:	tho200409
Number of pages:	13

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Intermin Resources Ltd v North Concrete Pty Ltd [2004] NTSC 35
No. 93/2004 (20416302)

	BETWEEN:

	INTERMIN RESOURCES LTD
	(ACN 007 761 186)
	Appellant

	AND:

	NORTH CONCRETE PTY LTD
	(ACN 009 640 346)
	Respondent

CORAM:	THOMAS J

REASONS FOR JUDGMENT

(Delivered 3 August 2004)

[1]	This is an interlocutory application made by the plaintiff on summons seeking the following order that:
1.	The defendant be restrained until further order from placing a mobile screening plant or any other fixed plant and equipment on Mining Lease (Southern) 150 known as White Range Mine.
[2]	The summons also sought an order for costs and such further order as the Court sees fit.  The defendant seeks an interlocutory injunction in the following terms:
“Until further order the plaintiff by its servants agents and contractors be restrained from doing any of the following things on Mineral Lease South 150:
(a)	preventing, restricting or in any way interfering with the defendant, its employees, servants, agents and contractors from:
(i)	entering onto and leaving the mineral lease;
(ii)	when on the mineral lease, travelling via the main road on the eastern side of the mineral lease heading generally north, turning east on road two and entering upon the defendant’s screening plant site at the north end of its 65mm scats stockpile and returning by the same route;
(iii)	from using the large cleared area at the intersection of haul road one and road two for a road train to turn around;
(iv)	from operating its screening plant in its present location;
(v)	from accessing its -65mm scats stockpile and with its 930 loader, taking scats across road two to its screening plant;
(vi)	from stockpiling -20mm scats after screening on its site, alternatively at the scats stockpile;
(vii)	dumping material after screening on waste dumps one or two;
(b)	preventing, restricting or in any way interfering with the defendant, its employees, servants, agents and contractors from carrying out such works as to render road two and the exit road useable for the defendant’s purposes set out in (a) above but so that when the defendant is able to use road two, it can do so operationally effectively;
(c)	from using road two at any time when the defendant is operating its screening plant; and
(d)	from using road two at any time when the defendant’s haulage contractor is present on the mineral lease for the purpose of loading and carting aggregate from the defendant’s screened stockpiles from the site to the waste dumps or off the mineral lease.”
[3]	The following affidavit material was relied upon by the plaintiff.
1.	Affidavits of Michael Ruane sworn 13 July 2004, 19 July and 26 July 2004.
2.	Affidavit of Christopher Herbert sworn 20 July 2004.
[4]	In addition to this evidence, Michael Ruane gave oral evidence to the Court identifying the photographs which have been tendered Exhibit P1.
[5]	The plaintiff also tendered correspondence between solicitors for the plaintiff and the Director of the Mines and Petroleum Management Division of the Department of Business, Industry and Resource Management Exhibit P2.
[6]	Evidence was presented on behalf of the defendant in the following affidavits:
1.	Affidavit of Rosalind Elizabeth Wade sworn 22 July 2004.
2.	Affidavit of Brian John Blakeman sworn 21 July 2004.
3.	Affidavit of Clarence William Wade sworn 22 July 2004.
4.	John Robert Bruce sworn 22 July 2004.
5.	Robert Frederick Halse sworn 21 July 2004.
6.	Richard Anthony McGill sworn 22 July 2004.
[7]	The defendant tendered a bundle of documents which included copy of a letter from Mr Ruane to North Concrete Pty Ltd dated 21 June 2004, copy of letter North Concrete Pty Ltd to Department of Mines dated 21 June 2004, facsimile from North Concrete Pty Ltd to Intermin Resources Ltd dated 21 June 2004, a plan of proposed new protected area on the tenement, letter dated 21 June 2004 to North Concrete Pty Ltd from Mr Ruane.
[8]	I have had the opportunity to read all of the affidavit material and the exhibits.
[9]	On 17 October 2001, the plaintiff entered into a Joint Venture Deed with Arltunga Pty Ltd known as the Arltunga Pty Ltd, Intermin Resources Ltd Deed, to operate a heap leach process at the White Range Mine site in the Northern Territory.  A heap leach process is essentially the chemical leaching of mine waste or mullock to recover residual gold content.  The joint venture agreement provides that Arltunga, as owner of the tenement, namely Mineral Lease South 150 grants the plaintiff full and unrestricted right to carry out mining operations within the tenements.
[10]	This joint venture agreement acknowledges that the defendant, North Concrete Pty Ltd is the owner of certain materials, scats and tailings stockpiled within the tenements.  It is acknowledged in this agreement that the plaintiff will not interfere with the ability of the defendant to enter the site and pick up scats or tailings, at its convenience.  It also provides that the plaintiff will conduct all of its operations in a manner which shall not affect the rights and operations of North Concrete Pty Ltd within the tenements.
[11]	On 29 October 1999, Arltunga Pty Ltd entered into an agreement with the defendant for the defendant to purchase a stockpile of –65mm (meaning “less than 65mm”) scats from Arltunga Pty Ltd.  The defendant originally obtained the scats under agreement with White Range Gold NL dated 24 February 1992.  There were subsequent agreements entered – prior to the agreement with Arltunga Pty Ltd dated 29 October 1999.
[12]	Stockpile scats are rocks and stones which remain after they have been processed by the earlier mining.  The defendant uses stockpile scats in the production of concrete in their business.
[13]	In or about May 2003, the defendant placed a mobile screeing plant on the mineral lease in a position adjacent to the +6 -16mm (meaning “greater than 6mm but less than 16mm”) scats stockpile.  After setting up the screening plant the defendant commenced screening of the remaining +6 -16mm scats.
[14]	There is a dispute between the parties as to whether or not the defendant had first obtained the permission of the plaintiff to place the screening plant on the mineral lease.  There is agreement that the defendant did continue to operate the screening plant at the location where it had been placed in May 2003.
[15]	The relationship between the plaintiff and the defendant appears to have deteriorated over the succeeding months with allegations and counter allegations about interference with the respective rights of the parties over the mining tenement.  The defendant alleges amongst other matters, that the reason for bringing a screening plant onto the site was because the plaintiff has contaminated their stockpiles.
[16]	On 28 June 2004, the defendant moved the screening plant from the +6        -16mm scats area to a position immediately adjacent to the junction of Road One and on the other side of Road Two from the -65mm scats stockpile.  These respective positions are marked on the site plan which is annexure RW19 to the affidavit of Ms Rosalind Wade sworn 22 July 2004.
[17]	On 16 June 2004, Richard Anthony McGill a mining officer with the Mines and Petroleum Management Division of the Department of Business, Industry and Resource Development attended on site of Mineral Lease South 150 in an effort to mediate the disputes between the parties.
[18]	Mr McGill understood that he had achieved an agreement between the parites and made certain directions which are contained in a letter from Mr McGill to Arltunga Pty Ltd dated 28 June 2004, annexure K to the affidavit of Michael Ruane sworn 13 July 2004.  Further directions were given by Mr McGill copies of which are annexures to Mr Ruane’s affidavit sworn 13 July 2004.
[19]	I have not detailed these directions.  The validity of these directions are not the subject of a challenge in these proceedings.  It would not be appropriate for me to comment as to the validity of these directions when the Department of Mines or the appropriate department has not been joined as a party to the action and I do not presume to do so.
[20]	The plaintiff does not agree that an agreement was reached between the parties at the meeting with Mr McGill on 16 June 2004.
[21]	Mr Ruane in his affidavit material has detailed the reasons the plaintiff opposes the actions of the defendant in placing the screening plant on the present position on Mineral Lease South 150.
[22]	The plaintiff subsequently issued a writ on 13 July 2004 for injunctive relief and a summons seeking an interlocutory injunction.
[23]	The defendant filed a defence on 26 July 2004 and by summons also seek an interlocutory injunction as already detailed.
[24]	Counsel for the defence, Mr McDonald QC, submits that the plaintiff’s application for an interlocutory injunction should be dismissed on a number of grounds.
Ground 1: To preserve the status quo
[25]	I accept the principle that the purpose of an interlocutory injunction is to preserve the status quo until the hearing of the main action at trial and that where possible the Courts seek to maintain the status quo – Tableland Peanuts Pty Ltd v Peanut Marketing Board (1984) 58 ALJR 283; Australian Coarse Grain Pool v Barley Marketing Board (No 1) (1982) 57 ALJR 425.
[26]	I note that both these cases also stress that the proper approach, in considering whether an interlocutory injunction should be granted, is first to inquire whether there is a serious question to be tried and then to determine the matter on the balance of convenience.
[27]	With respect to the issue of the status quo it is the submission on behalf of the defendant that the plaintiff’s application in seeking interlocutory relief destroys the status quo.  This is because the screening plant has been on Mineral Lease South 150 since May 2003, and secondly, because it shatters the compromise arrived at by Mr McGill on 16 June 2004.
[28]	I do not accept this submission.  On the evidence it would appear that the defendant operated a screening plant on Mineral Lease South 150 since May 2003 under what appears to have been a somewhat uneasy truce between the parties.  What precipitated the application for injunctive relief was the action of the defendant in moving the screening plant to a different site on Mineral Lease South 150.  The plaintiff immediately registered their objections, which in summary related to the new positioning of the screening plant interfering with the plaintiff’s operation and use of the various roadways on the tenement.  The plaintiff also disputes that any agreement was reached with Mr McGill on 16 June 2004.
[29]	In these circumstances it does not appear to have been the actions of the plaintiff which altered the status quo but rather the actions of the defendant.
Ground 2: Serious question to be tried
[30]	Mr McDonald QC submits there is no serious question to be tried.  He argues that the plaintiff does not have rights of exclusive possession to Mineral Lease South 150 and took its right to conduct mining operations subject to the rights of the defendant.  Reference was made to the mining plan under which the defendant is required to operate and in particular Clause 1.9 which states:
“A rubber tyred loader North Concrete Pty Ltd on site.  Subcontractor’s truck & two trailers.  Screening plant for larger material extraction.”
[31]	Mr McDonald QC also refers to the Mining Management Act and the authorisations made in accordance with this Act as a complete refutation of the plaintiff’s allegation of trespass by the defendant.
[32]	Mr McDonald QC argues that the agreement with Arltunga Pty Ltd dated 29 October 1999, provides that each party had a duty to cooperate.  He referred to Clause 4.2.4 and Clause 4.2.5 of the Joint Venture Agreement between Arltunga Pty Ltd and Intermin Resources Ltd dated 17 October 2001.  These clauses provide as follows:
“4.2.4	Intermin’s Mining Operations will not affect the ability of North Concrete to enter the site and pick up scats or tailings at its convenience.
4.2.5	Generally Intermin will conduct all of its operations in a manner which shall not affect the rights and operations of North Concrete within the tenements.”
[33]	In the submission made on behalf of the defence, the plaintiff has failed to cooperate in accordance with their contractual duties and have no intention of cooperating and enabling the defendant to exercise its rights.
[34]	It is Mr McDonald QC’s submission that the Court should imply terms of cooperation into the contract.  He further submitted that the defendant’s screening operation has been necessitated by the contamination of the          -65mm scats stockpile by the plaintiff.  He asserts the plaintiff cannot now seek to take advantage of the existence of a state of things, namely the contamination, which the plaintiff has caused.
[35]	I am not able to make the findings the defendant suggests.  The affidavit evidence discloses that the defendant has made complaints the plaintiff was contaminating their scats stockpiles.  Such complaints have not been established as a fact at this time and are specifically denied by Mr Ruane in his affidavit sworn 26 July 2004.
[36]	The Joint Venture Agreement certainly provides for the defendant’s right to enter the mining site and pick up the scats or tailings at its convenience.  The plaintiff is not denying the defendant’s right to enter and collect the scats or tailings at their convenience.  The defendant has not established that the plaintiff is denying them the right of access, they have pursuant to Clause 4.2.4 of the Joint Venture Deed.
[37]	The Joint Venture Deed does not acknowledge the right of the defendant to have a screening plant on site.  A little over 18 months after the date of the Joint Venture Deed between Arltunga Pty Ltd and Intermin Resources Ltd, the defendant moved a screening plant onto the site.  It is disputed that this was done with the consent of the plaintiff.  The plaintiff did allow the screen plant to operate in the first position it had been placed.  This position was close to the defendant’s +6 – 16mm scats stockpile and well away from the intersection of roads utilised by the plaintiff for its processing plant and for transporting reject material to the waste disposal area located 400 metres east of the process plant.
[38]	The new location of the screen plant as from 28 June 2004 is within the plaintiff’s main area of operations and involves the defendant crossing a roadway, between the screening plant and their scats stockpiles, constantly used by the plaintiff’s vehicles.
[39]	In these circumstances I am satisfied the plaintiff has established there is a serious question to be tried.
Balance of convenience
[40]	It is submitted on behalf of the defendant that the plaintiff could use alternate roads during the limited periods the defendant is operating the screening plant.  It is further submitted that the plaintiff should obey the directions of Dr McGill, the Director of Mines and Petroleum Management Division of the Department of Business, Industry and Resource Management, as set out in annexures K and O to the affidavits of Michael Ruane sworn 13 July 2004.
[41]	The defendant seeks a cross injunction to force the plaintiff to take these steps.
[42]	I accept there is hardship to the defendant if the injunction were to be granted to the plaintiff.  The defendant requires the aggregate from the stockpile for the viability of its concrete business in Central Australia and faces the risk of losing its business.
[43]	The matter will of course ultimately be determined at a full hearing of the injunction application.
[44]	At this stage of the proceedings it would appear to be most unfortunate that the defendant’s claim to have a right to have a screening plant on the plaintiff’s mining tenement and the location of any such screening plant was not clearly established between them at the time of the relevant written agreements, or subsequently.
[45]	The plaintiff also claims a hardship in that they claim the interference to their operation by the relocation of the screening plant will have serious economic consequences and the financial implications will also affect the viability of their business.
[46]	In the circumstances and for the purpose of the interlocutory injunction, I find the balance of convenience to be in favour of the plaintiff.
[47]	For these reasons, I propose to grant the interlocutory injunction sought by the plaintiff and to dismiss the interlocutory injunction sought by the defendant.
[48]	I will hear the parties on the question of the appropriate undertakings to be given by the plaintiff and in respect of the appropriate order for costs.

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