Austar Coal Mine Pty Limited ACN 111 910 822 v Mitchell & Ors [2010] NSWLEC 74

Land and Environment Court of New South Wales

CITATION : Austar Coal Mine Pty Limited ACN 111 910 822 v Mitchell & Ors [2010] NSWLEC 74

PLAINTIFF Austar Coal Mine Pty Limited ACN 111 910 822

FIRST DEFENDANT PARTIES : Natalie Cecile Mitchell

SECOND DEFENDANT Michael Philip Windebank

FILE NUMBER(S) : 80005 of 2009

CORAM: Craig J

KEY ISSUES: PRACTICE AND PROCEDURE :- order sought for access to mine by mining experts – claim for compensation pursuant to s 265 of the Mining Act 1992 – land subject to mining lease but not land beneath the surface of which mining was authorised to be carried out – only surface access necessary for determination of claim – access to mine denied.

LEGISLATION CITED: Mining Act 1992

DATES OF HEARING: 25 March 2010

EX TEMPORE JUDGMENT DATE : 25 March 2010

PLAINTIFF Mr C H Withers (Barrister) SOLICITOR Sparke Helmore LEGAL REPRESENTATIVES: DEFENDANTS Mr L Livingston (Barrister) SOLICITOR Gye Associates Lawyers

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

CRAIG J

25 MARCH 2010

09/80005 AUSTAR COAL MINE PTY LIMITED ACN 111 910 822 v MITCHELL & ORS

EX TEMPORE JUDGMENT

1 HIS HONOUR: By a summons filed on 12 November 2009, the plaintiff seeks the determination of compensation payable to the defendants by it pursuant to s 265 of the Mining Act 1992. The proceedings have had a considerable history particularly with directions and notices of motion. Suffice it is to note for present purposes that these proceedings have been fixed for hearing for three days commencing on 28 April 2010 with the first of those hearing days allocated for a site inspection. 2 The defendant filed a notice of motion on 19 March 2010, pursuant to a direction made by the Court, seeking a number of orders of an interlocutory nature. Save for one of those substantive orders the others have been resolved by the registrar. The order that has been referred to me as duty judge is one whereby the defendant seeks access to the property which is the subject of the plaintiff's mining lease. It seeks access to that property "including the ventilation shaft, emergency exit shaft, all structures on the land and internally within the mine." It seeks that access for the nominated representative of the defendant on one day's notice to the plaintiff. That access is required, so it is submitted, effectively because of what the defendant says it does not know in respect of the mining operations or activities being conducted on the land, that is to say the land the subject of the mining lease.