King v Der & Anor [2010] NSWLEC 1249

King v Der & Anor [2010] NSWLEC 1249

On the balance of probabilities, the defendants unlawfully mined beyond Mineral Claim 30592 into the plaintiff's Mineral Claim 26008, removed approximately 148 cubic metres of opal bearing rock and earth from the Red Pillar area, and destabilised the mine area by failing to mine safely and prop the walls or roof. Although the exact quantity and value of opal could not be identified, the evidence of prior opal recovery and valuation supported a just assessment that the defendants retrieved opal worth $10,000 in total. The plaintiff also proved the need for $4,120 in stabilisation works, but no separate payment was ordered for the remaining 50 to 60 cubic metres said to be inaccessible...

Jurisdiction
Australia
Judgment Date
24 September 2010
Procedural Posture
Civil Proceeding Within the Class 8 Jurisdiction of the Land and Environment Court Concerning Alleged Unlawful Mining of Opal and a Claim for Payment of Money Under the Mining Act 1992 / Final Judgment After Hearing, Following Interlocutory Injunction Proceedings
Outcome
Plaintiff succeeded in part; compensation and stabilisation costs were ordered, the injunction was discharged, and the defendants were ordered to pay the plaintiff's legal costs and disbursements to be quantified if not agreed.
Legal Topics
['unlawful Mining of Opal' 'mineral Claims' 'damages Under S 298 of the Mining Act 1992' 'interlocutory Injunction' 'costs']
['mining Law' 'civil Procedure' 'property in Minerals'] ['unlawful Mining of Opal' 'mineral Claims' 'damages Under S 298 of the Mining Act 1992' 'interlocutory Injunction' 'costs']

Case Brief

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Procedural Posture

Civil Proceeding Within the Class 8 Jurisdiction of the Land and Environment Court Concerning Alleged Unlawful Mining of Opal and a Claim for Payment of Money Under the Mining Act 1992 / Final Judgment After Hearing, Following Interlocutory Injunction Proceedings

Legal Issues

  1. 1 ["How much opal bearing rock and earth the defendants removed from the plaintiff's mineral claim" 'Whether the defendants took opal and, if so, the monetary value of the removed opal' "Whether the defendants' actions caused the mine area to become unstable" 'What amount of damages, if any, was payable to the plaintiff by the defendants' 'Whether the Court had jurisdiction and power to make the orders sought']

Ratio Decidendi

On the balance of probabilities, the defendants unlawfully mined beyond Mineral Claim 30592 into the plaintiff's Mineral Claim 26008, removed approximately 148 cubic metres of opal bearing rock and earth from the Red Pillar area, and destabilised the mine area by failing to mine safely and prop the walls or roof. Although the exact quantity and value of opal could not be identified, the evidence of prior opal recovery and valuation supported a just assessment that the defendants retrieved opal worth $10,000 in total. The plaintiff also proved the need for $4,120 in stabilisation works, but no separate payment was ordered for the remaining 50 to 60 cubic metres said to be inaccessible...

Court Disposition

Plaintiff succeeded in part; compensation and stabilisation costs were ordered, the injunction was discharged, and the defendants were ordered to pay the plaintiff's legal costs and disbursements to be quantified if not agreed.

Orders

  • ['Each defendant pays the plaintiff monetary compensation for the opal removed in the amount of five thousand ($5000), inclusive of interest, within 28 days of the date of this order.' "Each defendant pays the plaintiff the sum of $2,060.00 toward the cost of the work to stabilise the mine area in King's Claim...