Alliance Craton Explorer P/L v Quasar Resources P/L & Anor (No 2) Quasar Resources P/L v The Mining Registrar & Anor - [2011] SASC 92

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
ALLIANCE CRATON EXPLORER P/L v QUASAR RESOURCES P/L & ANOR (NO 2) QUASAR RESOURCES P/L v THE MINING REGISTRAR & ANOR
[2011] SASC 92
Judgment of The Honourable Justice White
31 May 2011
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - AMENDMENT
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - OTHER MATTERS ARISING BEFORE TRIAL
The plaintiff in Action SCCIV-09-1731 (who is also the second defendant in Action SCCIV-10-1658) (Alliance) seeks permission to amend its statement of claim, and other case management orders - the first defendant in Action SCCIV-09-1731 (who is also the plaintiff in Action SCCIV-10-1658) (Quasar) and the second defendant in Action SCCIV-09-1731 (Heathgate) oppose each application.
Whether Alliance's application to amend its statement of claim seeks impermissibly to add new causes of action based on events occurring after the commencement of the action contrary to Supreme Court Civil Rules 2006 (SA) r 105(2); whether the amendment of Alliance's statement of claim would cause injustice to the defendants; whether issues of quantum should be tried separately from issues of liability; whether Actions SCCIV-09-1731 and SCCIV-10-1658 should be heard together.
Held: Alliance's applications should succeed - although the amendment raises causes of action based on events occurring after the commencement of the action, they will not cause an injustice to Quasar or Heathgate of the kind contemplated by r 105(2) - the amendments will not cause sufficient prejudice to Quasar or Heathgate and are otherwise appropriate - Alliance should be granted permission to amend its statement of claim in Action SCCIV-09-1731; there should be a separate trial of issues of quantum and issues of liability in that action; and the trial of the liability issues in Action SCCIV-09-1731 should be heard together with Action SCCIV-10-1658.
Supreme Court Civil Rules 2006 (SA) r 98, r 105, r 120, r 200, r 211; Supreme Court Act 1935 (SA) s 27; Mining Act 1971 (SA) Pt 9B; Mining Regulations 1998 reg 80, referred to.
Aon Risk Services Autralia Ltd v Australian National University (2009) 239 CLR 175; Channel Seven Adelaide Pty Ltd v Manock [2010] SASCFC 59; De Poi v De Poi (No 2) [2010] SASC 333; Eshelby v Federated European Bank Ltd [1931] 1 KB 254; Coutts & Co v Duntroon Investment Corporation Ltd [1958] 1 All ER 51; Baldry v Jackson [1976] 2 NSWLR 415; Wigan v Edwards (1973) 38 ALJR 586; Sevcorp (Aust) Pty Ltd v Abgarus Pty Ltd (1995) 38 NSWLR 281; Tepko Pty Ltd v Waterboard (2001) 206 CLR 1; FAI General Insurance Co Ltd (in liq) v Sherry (2002) 225 LSJS 141; Rivers v Rivers (2002) 220 LSJS 74; Duke Group Ltd (in liq) v Alamain Investments Ltd (in liq) (No 2) [2006] SASC 33; City of Onkaparinga v Hassell Pty Ltd [2007] SASC 163; Abigroup Contractors Pty Ltd v Hardesty & Hanover International LLC [2008] SASC 369; Pegasus Gold Inc v Bateman Project Engineering Pty Ltd [1999] FCA 490; Weimann v Allphones Retail Pty Ltd (No 3) [2009] FCA 1292; Humphries v Newport Quays Stage 2A Pty Ltd [2009] FCA 699, considered.

ALLIANCE CRATON EXPLORER P/L v QUASAR RESOURCES P/L & ANOR (NO 2) QUASAR RESOURCES P/L v THE MINING REGISTRAR & ANOR
[2011] SASC 92
Civil

WHITE J. This decision concerns applications by the plaintiff (Alliance) in Action No SCCIV-09-1731 (the Alliance Action) for permission to amend its statement of claim in that action and other case management orders.
The parties to the Alliance Action are Alliance, as plaintiff, and Quasar Resources Pty Ltd (Quasar) and Heathgate Resources Pty Ltd (Heathgate), as defendants. The parties to Action No SCCIV-10-1658 (the Quasar Action) are Quasar, as plaintiff, and the Mining Registrar and Alliance, as defendants.
I have decided that Alliance’s applications should succeed and that the Court should grant permission to Alliance to amend its statement of claim in the Alliance Action; direct that there be a separate trial of the issues of quantum in the Alliance Action; and direct that the Alliance Action and the Quasar Action be tried together. My reasons for those conclusions follow.
Background
In Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd [2011] SASC 90 (the Privilege Decision), I set out much of the background to the Alliance action. I refer to, and incorporate, that background in the present reasons without repeating it all. It is, however, appropriate to summarise briefly some of that background and to give some further detail.
Alliance and Quasar are parties to a joint venture agreement (the JVA).[1] The purpose of the JVA is the exploration of minerals on an area encompassed by Exploration Licence 3666 (EL 3666) to determine whether viable resources exist and, if so, to develop and mine the relevant parts. Acting under the JVA, Quasar has made a decision to mine an area known as the Four Mile Mine Development Area (the Four Mile Area) on EL 3666 and Alliance and Quasar have applied jointly for a mining lease in respect of that area.
[1] Sometimes referred to as the Four Mile Joint Venture.
It is common ground that the effect of Part 9B of the Mining Act 1971 (SA) is that the Mining Registrar may not grant a mining lease in respect of the Four Mile Area unless a native title mining agreement relating to that area has been registered under that Part.[2]
[2] See also Mining Regulations 1998, reg 80.
The First NTMA
Quasar and Heathgate entered into a native title mining agreement (the First NTMA) with the Adnyamathanha Traditional Lands Association (ATLA) as agent for the Adnyamathanha people as Registered Native Title Holders on 11 June 2009. The First NTMA related to EL 3666 and to the adjoining tenement on which Heathgate conducts the Beverley Uranium Mine. The Mining Registrar refused to register the First NTMA on the ground that Alliance was not a named party to it and had not executed the agreement. This precluded a mining lease being granted to Alliance and Quasar.
In the First NTMA Quasar described itself as contracting “as agent for and behalf of the parties to the Four Mile Joint Venture” and gave a warranty of its authority to do so.
The Alliance Action
Alliance seeks declarations that, in entering into the First NTMA, Quasar exceeded the authority given to it by the JVA and breached fiduciary and contractual duties to which it contends the JVA gives rise. Alliance also seeks an order that Quasar and Heathgate execute a form of deed acknowledging that it will be held harmless against certain liabilities or, in the alternative, a mandatory injunction requiring Quasar to commence the negotiation of a new agreement with ATLA which does not include the terms about which Alliance complains. It is not clear that Alliance will pursue these particular claims and even less clear, even if it is otherwise successful, that the Court would grant this form of relief. Alliance also seeks other orders, including damages and/or equitable compensation.
As against Heathgate, Alliance contends that it was a knowing participant in Quasar’s breaches.
Each of Quasar and Heathgate dispute Alliance’s entitlement to relief in any form. Each has also filed a counterclaim. Quasar claims that Alliance has breached the JVA by failing to cooperate in the registration of the First NTMA and that it is estopped, on various bases, from denying its authority to bind the joint venturers to that NTMA. Heathgate pleads an entitlement to a contractual indemnity from Alliance, which is said to arise from the agreement made in 2002 by which Quasar replaced Heathgate as the party to the JVA.
The Second NTMA
On 12 May 2010, Quasar and ATLA entered into another native title mining agreement with ATLA entitled “Four Mile Native Title Mining Agreement” (the Second NTMA). The Second NTMA is expressed to terminate and replace the First NTMA. Quasar, Heathgate and ATLA also entered into a separate deed by which each confirmed that the First NTMA had been terminated. Neither Heathgate nor Alliance are parties to the Second NTMA.
Unlike the First NTMA, the Second NTMA applies only to the Four Mile Area. In the Second NTMA Quasar described itself as contracting “as Manager of the Four Mile Joint Venture” and gave the following warranty of its authority:
Quasar represents and warrants that it is authorised pursuant to the Joint Venture Agreement to enter into this Agreement as Manager of the Four Mile Joint Venture and this Agreement is valid binding and enforceable in accordance with its terms against Quasar as Manager of the Joint Venture.
This appears to be a more limited warranty than that given by Quasar in relation to the First NTMA. Alliance contends that Quasar has purported to contract in the Second NTMA as a principal, whereas in the case of the First NTMA it purported to contract as agent for the joint venturers.
Quasar lodged the Second NTMA with the Mining Registrar and sought its registration. On 1 June 2010, the Registrar notified Quasar of her refusal to register the Second NTMA. The effect has been that a mining lease in respect of the Four Mile Area has still not been granted. This has a significant impact for the parties as mining on EL 3666 is thought to be viable and Quasar says that it has already expanded many millions of dollars on exploration and preparation of feasibility studies.
The Quasar Action
Alliance was not a party to the negotiation of the Second NTMA and asserts that it was not aware that such an agreement was contemplated, nor of its terms until after it had been executed. Almost immediately, Alliance informed Quasar of its view that the JVA did not authorise it to enter into the Second NTMA in a way which bound the joint venturers.
On 30 November 2010, just on six months after the decision of the Mining Registrar, Quasar commenced its Action. It seeks principally a declaration that the Registrar, by refusing to register the Second NTMA, has failed to discharge the duty imposed on her by s 63Q(4) of the Mining Act. The defendants to the action are the Registrar and Alliance.
The Quasar Action has proceeded as an action for judicial review, on affidavits and without pleadings. The affidavit of Mr Roberts on which Quasar relies sets out extensively a history which includes the First NTMA, and the disputation between the parties in the Alliance Action. However, the issue raised by Quasar concerns the Registrar’s obligations under the Mining Act and turns principally upon the proper construction of Part 9B of that Act.
The Mining Registrar remains unsatisfied that Alliance is bound by the Second NTMA and accordingly does not consider that it can be registered under Part 9B of the Mining Act. The Registrar submitted that two issues arise in the Quasar Action. The first is an issue of statutory construction, namely, whether an agreement lodged under s 63Q(4) of the Mining Act must bind all of the applicants for the mining lease under which mining operations are to be carried out. The second relates to Quasar’s authority, namely, whether the Second NTMA was negotiated on behalf of, and binds, Alliance.
Mr Johnston, the Chief Executive Officer of Alliance, has filed an affidavit in the Quasar action. Mr Johnston identifies a number of features of the Second NTMA which he contends are in breach of fiduciary and good faith duties which Alliance asserts arise from the terms of the JVA and the relationship between it and Quasar, and which, in Alliance’s contention, indicate that Quasar has exceeded the authority granted to it under the JVA. I think it fair to say that, almost without exception, the features of the Second NTMA impugned by Alliance are different from the impugned features in the First NTMA. Alliance also contends that on the proper construction of Part 9B of the Mining Act, the Mining Registrar is not obliged to register the Second NTMA.
The Present Interlocutory Applications
Alliance has filed two interlocutory applications. First, it seeks permission to amend its statement of claim in the Alliance Action so as to plead its claim that Quasar’s entry into the Second NTMA was not authorised by the JVA and in addition breached the claimed fiduciary and good faith obligations.
By the amendment Alliance wishes to seek relief in relation to the Second NTMA which is similar to that it seeks in relation to the First NTMA, namely, declarations that Quasar has exceeded its authority under the JVA, and has breached the fiduciary duties and the implied contractual duty of good faith said to arise from the JVA. In addition Alliance seeks an injunction prohibiting Quasar from taking further steps to procure the registration of the Second NTMA. However, Alliance does not allege that Quasar’s conduct in entering into the Second NTMA has caused it loss or damage, and does not make any claim for damages or equitable compensation in respect of that conduct.
Secondly, Alliance seeks an order that the issues of quantum raised by its statement of claim and by the counterclaims of each of Quasar and Heathgate be tried separately from the liability issues in the Alliance Action.
Thirdly, Alliance seeks an order that both the Alliance Action and the Quasar Action be heard together or, alternatively, that the Quasar Action be tried immediately after the trial of the Alliance Action and, in either case, that the evidence in each trial be received as evidence in the other. Alliance has filed a corresponding interlocutory application in the Quasar Action.
Finally, Alliance seeks an order for the evidence in the trial to be by way of affidavit. I will not address that application in these reasons.
There is some degree of inter-relationship between Alliance’s applications. For example, allowing the amendment to the statement of claim in the Alliance Action has implications for the joint hearing application, and that in turn has implications for the application for a separate trial of the quantum issue in the Alliance Action.
Both Quasar and Heathgate opposed each of the applications.
The Mining Registrar did not wish to be heard on Alliance’s amendment application nor on the application for a split trial. The Registrar noted that, as presently framed, issues as to the proper construction of the JVA arise in both actions. Provided that the issues of statutory construction and of authority can both be fully ventilated in Quasar’s Action, the Registrar made no submission as to whether that Action should be heard prior to, together with, or consecutively upon, the hearing of the Alliance Action. Finally, the Registrar said that, in the event that the two actions were heard together, she would seek to be excused from those parts of the hearing of the issues in the Alliance Action which do not bear upon the construction of the Mining Act.
I consider it appropriate to commence with consideration of Alliance’s application to amend its statement of claim.
The Amendment Application
Quasar and Heathgate opposed Alliance’s application to amend on numerous grounds. The first can be mentioned and immediately put to one side. Quasar and Heathgate submitted that the form of the proposed pleading was non‑compliant with r 98(2)(b) and (3). Alliance recognised that this was so and at the hearing proffered a revised form of the proposed amendment which addressed their concerns. Quasar and Heathgate did not then press this ground.
Rule 105(2)
The matters which the Court should take into account in relation to amendment applications under r 54 of the Supreme Court Civil Rules 2006 are well established and need not be repeated.[3]
[3] See Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 at [92]-[99]; (2009) 239 CLR 175 at 211-13; Channel Seven Adelaide Pty Ltd v Manock [2010] SASCFC 59 at [46], [119]; De Poi v De Poi (No 2) [2010] SASC 333 at [36].
Quasar and Heathgate relied in addition on r 105 and, in particular, r 105(2). Rule 105 provides:
(1)A pleading may refer to events occurring before or after the date of the commencement of the action to which the pleading relates.
(2)However, a pleading cannot raise a new cause of action based on events occurring after the commencement of the action unless the Court—
(a) is satisfied that the new cause of action can be included without injustice to another party; and
(b) gives its permission.
Quasar and Heathgate submitted that as Alliance wishes to plead new causes of action based on events occurring after the commencement of its action on 12 November 2009, r 105(2) indicated not only that permission to amend is required but that the Court should not grant that permission unless it is first satisfied that the new causes of action can be included without injustice to them.
On its face, r 105(2) does have the effect for which Quasar and Heathgate contended. Further the prospect that there may be at least some injustice appears sufficient to preclude the amendment, even if other considerations point in favour of the amendment.
Quasar and Heathgate referred to a number of detriments of cost, delay and inconvenience which they contended they will suffer if Alliance’s proposed amendment is allowed and also submitted that the amendments lack utility. Their submission was that those detriments amounted to the kind of injustice to which r 105(2) refers. In this way, Quasar and Heathgate sought to rely on all the forms of detriment they identified as evidence of injustice. In the case of Quasar, this included the perceived effects which the amendment of the pleading in the Alliance Action would have on it in the Quasar Action, as Quasar perceives that the amendment will result in a delay in the hearing and determination of the Quasar Action.
These submissions make it appropriate to say something about the kind of injustice to which r 105(2) refers.
Rule 105(1) applies to all pleadings, including statements of claim, defences, replies, and pleadings on cross-actions. It establishes as a general rule that any pleading, whether in a primary or secondary action, may refer to events occurring after the commencement of the action. It is implicit in this general rule that the mere fact that a pleading refers to some event occurring after the commencement of the action should not be regarded, of itself, as inappropriate or as productive of injustice. Subrule (2) is a qualification on the general rule. It makes the pleading of a new cause of action based on events occurring after the commencement of the action subject to the permission of the Court and limits the circumstances in which the Court may grant that permission.
Rule 105 appears intended to exclude the application of the rule that a cause of action must be complete at the commencement of an action, and that an amendment to plead a new cause of action which could not have been pleaded when the action was commenced is impermissible.[4] In part this rule was based on the view that a right had to exist before it could be sued upon, and in part on the view that an amendment to raise a cause of action which had arisen only after the commencement of the proceedings would not be an amendment at all, but the advancement of a new cause of action which is more appropriately the subject of a fresh action. The rule also appears to have been influenced by the former understanding that all amendments to a pleading were to be understood as having taken effect from the time when the pleading was first filed.[5] That understanding is no longer valid as courts now have more flexibility under modern procedural regimes in that respect. The prohibition on including causes of action which were based on events occurring after the commencement of the action produced a number of inconvenient consequences and its utility was questioned.[6]
[4]    Eshelby v Federated European Bank Ltd [1931] 1 KB 254 at 260; Coutts & Co v Duntroon Investment Corporation Ltd [1958] 1 All ER 51 at 53; Baldry v Jackson [1976] 2 NSWLR 415 at 417-8.
[5]    Wigan v Edwards (1973) 47 ALJR 586 at 596.
[6]    Sevcorp (Aust) Pty Ltd v Abgarus Pty Ltd (1995) 38 NSWLR 281 at 283-4.

Whenever a new cause of action is added by amendment, there is the potential for some prejudice to the opposing party. That is so whether the events giving rise to the new cause of action arose before or after the commencement of the action. The fact that the limitation in sub-r (2) applies only in the case of causes of action based on events arising after the commencement of the action suggests that the injustice to which it refers is of a particular kind, namely, the injustice which may result from a party having to address a cause of action which could not have been pleaded when the proceedings were commenced and which cannot be addressed by an order that the amendment take effect from a date after the commencement of the original proceedings. Otherwise, there would be no reason for the rule to distinguish between amendments based on events occurring, say, one week before the commencement of the action, and amendments based on events occurring, say, one week afterwards.
An injustice of this kind may arise from a variety of circumstances. It may arise, for example, from a change of position by a party in reliance on the existing pleadings, or from a party being deprived of the benefit of some essential procedural step before proceedings could be commenced, or from the potential for a delay to the determination of an existing dispute. However, whatever be the nature of the detriment, it seems that it should be one which would arise from the other party having now to meet a cause of action which could not have been raised when the action was first commenced, and not simply from having to meet a new cause of action.
Understood in this way, the circumstances which may give rise to an injustice for the purposes of r 105(2) and which may therefore preclude the grant of permission to amend are of a limited kind. This does not mean that the general discretionary considerations to which Quasar and Heathgate referred are immaterial. They are pertinent to the exercise of the general discretion to amend but not all of them suggest the kind of injustice to which r 105(2) refers.
Absence of Utility
Quasar and Heathgate submitted that it is not necessary for Alliance to amend its statement of claim in the Alliance Action to raise issues concerning the Second NTMA because those issues are, in effect, raised in the Quasar Action to which Alliance is a party. The submission was that if Quasar succeeds in its Action, the Mining Registrar will be obliged to register the Second NTMA, and there will be no basis for the relief by way of injunction which Alliance wishes to claim by the amendment. If Quasar does not succeed, there will similarly be no basis for an injunction.
The focus of this submission was on Alliance’s claim for an injunction restraining Quasar from taking further steps to procure the registration of the Second NTMA and on the relief which Quasar itself seeks in the Quasar Action. The submission tended to ignore the other relief which Alliance seeks in relation to the Second NTMA.
A second difficulty with the submission is that it overlooked the difference in form of the two actions. The Quasar Action has proceeded thus far as proceedings for judicial review of the validity of the Mining Registrar’s refusal to register the Second NTMA having regard to the terms of Part 9B of the Mining Act.
However, as noted earlier, that is not the sole issue. Each of the Mining Registrar and Alliance have put in issue Quasar’s authority to bind Alliance to the Second NTMA. At least at present it seems probable that the Court will have to determine that issue. On my present understanding of the issues, it is improbable that the Court would declare that the Mining Registrar is obliged to register a native title mining agreement which the proponent of the agreement was not authorised to make, and improbable that the Court would consider that an agreement which breached fiduciary and contractual duties to which an agreement such as the JVA gave rise, was nevertheless authorised by that agreement.
At present, it seems that the resolution of the issues concerning Quasar’s authority will require consideration of the terms and effect of the JVA and, in particular, the determination of Alliance’s claim that the JVA contains an implied term requiring Quasar to exercise its powers and discretions as Manager, including the power conferred by cl 6.4 of the JVA in good faith and for proper purposes. It may also require the determination of Alliance’s claims of breach of fiduciary duty.
Judicial review proceedings are not well suited to the resolution of disputes concerning fiduciary and contractual duties of this kind. Such disputes should ordinarily be determined in an action which is adapted to the determination of disputed issues of fact and law, rather than in the context of proceedings directed to the determination of the issues of law concerning the validity of some impugned governmental action.
Some of these concerns could be met by a direction that the Quasar Action proceed as an ordinary action between parties, rather than judicial review proceedings. However, that course of action has not been proposed by any party.
Quasar and Heathgate also made the point that it is open to Alliance to commence separate proceedings against Quasar raising its proposed claims in relation to the Second NTMA. That is obviously so. However, s 27 of the Supreme Court Act 1935 (SA) specifically enjoins the Court to avoid, so far as possible, a multiplicity of proceedings. If Alliance was to commence separate proceedings in respect of the Second NTMA, there would then be three sets of proceedings on foot in the this Court in which the construction and effect of the JVA and of Part 9B of the Mining Act would have to be considered. That is an undesirable outcome. Further, there would at least be the prospect, and perhaps the probability, that the Court would be asked to make orders for the concurrent hearing and determination of at least some of the issues in the respective actions. That is a position not very different from that which the Court currently faces.
These considerations indicate that Alliance’s proposal to plead its claims in proper form should not be held to lack utility. Accordingly Quasar’s and Heathgate’s submission concerning necessity has not been made good.
Prejudice to Heathgate
Heathgate emphasised the prejudice to it if the amendment is allowed. No claim is made against it in relation to the Second NTMA. Accordingly, although concerned only with Alliance’s claim in respect of the First NTMA, it submitted that it will be required to participate in “lengthy and expensive litigation” concerning the Second NTMA.
I agree that this is a very relevant matter to be considered in relation to the amendment. However, it does not necessarily follow that allowing the amendment will have the effect for which Heathgate contends. The Court is able to make orders for the conduct of the trial which will, at least in part, relieve Heathgate from participating in controversies which do not concern it. The order for a separate trial of the issue of quantum may in part protect Heathgate’s position.
The relationship between Quasar and Heathgate to which I referred in the Privilege Decision also suggests that there is a very real prospect of some cooperation between Quasar and Heathgate in the conduct of the litigation. Their interests coincide on many matters. The possible prejudice to Heathgate of being involved in some aspects of the proceedings which do not concern it is not to be assessed on the basis that Quasar and Heathgate are unrelated and independent entities having distinct interests in the litigation.
Delay
Both Quasar and Heathgate made submissions concerning delay. There were two aspects to the submissions: delay which has already occurred; and delays which may be caused by the amendment.
As to the former, Quasar and Heathgate made the point that Alliance became aware of the Second NTMA on 13 May 2010 and yet did not make its application to amend the Alliance Action until 21 January 2011. Further, Alliance had foreshadowed at one time in June 2010 an amendment to its statement of claim to raise issues concerning the Second NTMA. However, in late June 2010, Alliance informed the Court, Quasar and Heathgate that it did not then propose making such an amendment. The submission was that in these circumstances Alliance’s present application is belated and follows a previous deliberate decision not to seek the amendment.
As to the delay which may be caused, Quasar and Heathgate raise concerns about the effect which the amendment will have on the progress of the Quasar Action to trial. They submitted that the Quasar Action is presently ready for trial as a stand alone action. Their submission accepted, implicitly, that if the amendment is made, then it is probable that the Court will make orders for the joint hearing and determination of at least some of the issues in the two actions.
Alliance contended that it is inappropriate for the Court, when considering whether to grant permission to amend, to take account of the effect which the amendment may have on the progression of the Quasar Action to a hearing. It submitted that to do so would conflate the question of permission to amend with the question of how the two actions should proceed. I agree that the two questions are conceptually distinct but do not agree that consideration of the latter is wholly irrelevant to the determination of the former. As noted earlier, there is an inter-relationship between Alliance’s applications and the Court should not be oblivious to the potential effect of success by Alliance on one of its applications in relation to other issues arising between the parties.
Accordingly, I regard the prospect that the amendment may cause some delay in the hearing and determination of either action as a material consideration.
I am disinclined to attach much significance to the lapse of time between Alliance first becoming aware of the Second NTMA and the making of its amendment application. Alliance acknowledges that it did, at one time, contemplate an amendment to raise the Second NTMA. However, it says that it considered on reflection that it was unnecessary to do so in the light of the Mining Registrar’s refusal to register the Second NTMA. While the Second NTMA remained unregistered, it could not be relied upon for the issue of a mining lease and Alliance considered that its position was thereby protected.
However, Alliance’s assessment of the position changed once it became aware on 30 November 2010 of the Quasar Action. It then became concerned that its claims that Quasar’s entry into the Second NTMA was unauthorised and further, was in breach of fiduciary and contractual duties, should be heard and determined in appropriate proceedings. Alliance informed the Court of its intention to seek permission to amend the statement of claim at a directions hearing on 23 December 2010 and brought the present application within the time then stipulated by the Court for that purpose.
There is nothing inherently implausible in that explanation and neither Quasar nor Heathgate sought to cross-examine the relevant deponent concerning it.
When these matters are understood, it can be seen that the lapse of time from May 2010 is principally attributable to Quasar’s own conduct in delaying the commencement of the Quasar Action until the end of the six month period fixed by r 200(2) of the Supreme Court Civil Rules 2006 within which proceedings for judicial review may be commenced.
It is not possible to exclude the possibility that allowing the amendment will result in some delay in the hearing and determination of the Quasar Action. However, I am satisfied that the amendment is unlikely to cause a significant delay to the hearing of the Quasar Action. If that expectation turns out to be wrong, it will be open to Quasar to seek some revision of the orders which I will make on Alliance’s present applications.
Despite Quasar’s assertion that the Quasar Action is ready for trial, I note that the parties have not yet provided a certificate to that effect.[7] Further, it seems that the parties may not yet have addressed all the implications for the conduct of the action arising from Alliance’s claims that Quasar’s entry into the Second NTMA was unauthorised and breached fiduciary and contractual duties owed to it. Those claims are now issues in the Quasar Action. At the very least, the claim that the JVA contains an implied contractual duty of good faith which Quasar breached by entering into the Second NTMA would seem to require consideration of whether disclosure of documents and further affidavits will be necessary.
[7] As required by r 120(3) of the Supreme Court Civil Rules 2006.
Nevertheless, I accept that the allowance of the proposed amendment may have the effect that the Quasar Action may not be determined as soon as may otherwise have been the case. I consider it appropriate to proceed on the basis that there may be some such delay. To a large extent, however, the extent of the delay will be minimised by the orders which I propose to make on Alliance’s applications for a joint hearing and for a separate trial of some issues.
I also rely for this purpose upon Alliance’s submissions as to the time (said to be “a short number of weeks”[8]) which it would require in order to be ready for trial of the liability issues in the Alliance Action in the event that the amendment is allowed and an order for the separate hearing of some issues is made. The Court can make orders which hold Alliance to its estimate. I accept that the estimate may be slightly optimistic bearing in mind the prospect of Quasar at least having to make additional disclosure of documents, but nevertheless it gives some cause for confidence that allowing the amendments need not result in the kind of delay contemplated by Quasar and Heathgate.
[8] T47.
Effect on the Quasar Action
Quasar and Heathgate submitted that the purpose of the proposed amendments is “an attempt to ensnare” the Quasar Action with the Alliance Action; to frustrate the prompt hearing of the Quasar Action; and to obtain, in effect, an injunction restraining pursuit of the Quasar Action. It is plain enough that Alliance does wish to restrain Quasar from taking further steps to procure the registration of the Second NTMA: it seeks an injunction to that effect and Mr Johnston, in an affidavit filed by Alliance, says as much.
It is not possible on interlocutory proceedings of the present kind to make the findings of fact which would be necessary before the Court could conclude that Alliance’s purposes were inappropriate. I note again that Quasar and Heathgate did not require any deponent to attend for cross-examination on their affidavits.
There are some indications that the issues concerning the Second NTMA will or may arise in the Alliance Action in any event. One indication is the potential effect of Quasar’s entry into the Second NTMA on Alliance’s claim for damages and/or equitable compensation. Quasar may wish to contend that even if its entry into the First NTMA was not authorised, its entry into the Second NTMA was. If that claim was made good, the effect would appear to be that Alliance’s claim for damages and/or equitable compensation should be limited to the period expiring on or shortly after 12 May 2010. If Alliance wished to dispute that contention, it would have to plead in the Alliance Action its challenges to the Second NTMA. In fact, the proposed amended statement of claim anticipates such a claim by the pleading in [72W] that the termination of the first NTMA by the Second NTMA was not authorised by the JVA.
It is also pertinent that Quasar at least considers that the Second NTMA meets the concerns pleaded by Alliance in relation to the First NTMA. It is neither necessary nor appropriate to consider whether the Second NTMA is a response to those concerns, but there is at least some linkage between the two agreements.
It is plain that there are a number of tensions and difficulties in the relationship between Alliance and Quasar, with each making accusations that the other is acting in breach of the JVA, or in breach of obligations arising under the JVA. It is also apparent that Alliance is determined presently to prevent the registration of an NTMA in either of the two forms negotiated by Quasar with ATLA. I note again that the parties are in dispute about the establishment of what appears to be a major mining operation.
In all these circumstances it is appropriate that the Court adopt an approach which will be conducive to the resolution of all disputes between the parties as soon as practicable. This suggests that there is much to be said for having the issues concerning the validity of Quasar’s entry into the respective NTMAs dealt with in the one proceeding. If this involves an “ensnarement” of one action with another, then that is a consequence of the nature of the disputes between the parties and of the procedural course which they have followed.
Summary on Amendment Application
In summary, I am not satisfied that granting permission for Alliance to make the amendment will result in the kind of injustice to which r 105(2) refers. Nor am I satisfied that the prejudice to which Quasar and Heathgate have pointed is sufficient to indicate that the amendment ought not to be allowed. On the contrary, although the issues arising in respect of the two NTMAs are not identical, they do have much in common. In particular, Alliance’s claims in respect of each NTMA give rise to common questions concerning Quasar’s authority to enter into an NTMA binding Alliance; the existence and content of the fiduciary duties alleged by Alliance; and the existence and content of an implied contractual duty of good faith which is pleaded by Alliance. I consider it sensible for these claims to be addressed in the one proceeding.
Accordingly, I grant permission to Alliance to amend its statement of claim in the form it proposes.
The Application for a Split Trial
Alliance seeks an order under r 211 of the Supreme Court Civil Rules 2006 for the separate trial of the issues of quantum in the Alliance Action. Those issues are its own claims for damages and/or equitable compensation; Quasar’s claims for damages, equitable compensation and interest; and Heathgate’s claim against it for an indemnity in respect of any damages or equitable compensation which it becomes liable to pay as a result of Alliance’s claims.
The usual position is that all issues arising in an action should be determined in the one trial.[9]
[9] Tepko Pty Ltd v Waterboard [2001] HCA 19 at [168]-[171]; (2001) 206 CLR 1 at 55.
The principles which govern the exercise of the Court’s power under r 211 are well settled.[10] I repeat my summary of those principles in Abigroup Contractors Pty Ltd v Hardesty & Hanover International LLC:[11]
The general rule is that all issues should be dealt with in a single trial. The trial process should not be unduly fragmented. In particular, it is inappropriate that one judge be asked to hear and determine disputed issues of fact, which involve an assessment of the credibility and reliability of the same witnesses, in more than one trial arising from the one action. Further, the experience of the courts has been that splitting issues arising from the one action for separate determination with a view to shortening proceedings and saving costs frequently results in a prolongation of the proceedings and the incurring of additional costs. In this regard I respectfully agree with the following remarks of the Judge at first instance:
Attempts by Courts to separate out discrete issues for determination often lead to complication and confusion, and have the consequence of delaying ultimate judicial determination of a dispute. The splintering of the case, consequent appeals, cost and delay are unattractive. The Court has a responsibility to provide an expedient and cost effective procedure for the resolution of disputes.[12]
(Citations omitted)
[10] See FAI General Insurance Co Ltd (in liq) v Sherry [2002] SASC 431; (2002) 225 LSJS 141; Rivers v Rivers [2002] SASC 197; (2002) 220 LSJS 74; Duke Group Ltd (in liq) v Alamain Investments Ltd (in liq) (No 2) [2006] SASC 33 at [23]; City of Onkaparinga v Hassell Pty Ltd [2007] SASC 163 at [24].
[11] [2008] SASC 369.
[12] Ibid at [93].

It is for Alliance to establish that separate trials are appropriate, bearing in mind the observation of Kirby and Callinan JJ in Tepko Pty Ltd v Waterboard that separate trials should be embarked upon only “when their utility, economy and fairness to the parties are beyond question”.[13]
[13] Tepko Pty Ltd v Waterboard [2001] HCA 19 at [168]-[171]; (2001) 206 CLR 1 at 55.
A number of matters point in each direction on this application.
Proportion of Hearing Time
First, it appears that the time required for the hearing of the quantum issues will greatly exceed the time required for the hearing of the liability issues. Alliance estimated that the liability issues in its action may require a hearing of three to four days. Quasar and Heathgate were less optimistic, submitting that the trial of the liability issues may require at least six, and possibly 10 days. However, on either estimate, it is probable that the time required for a hearing of the quantum issues will be measured in weeks rather than days. That is because (in the absence of an order for separate trials) each of Alliance and Quasar will have to present the evidence relating to their respective claims as they will not know whose damages the Court will have to assess. It is not possible to be precise about the period required for the quantum issues as no party is yet able to formulate an assessment or to identify all the evidence which will be necessary in order to substantiate its claimed assessment.
Readiness for Trial
Secondly, the parties will be able to be ready for a hearing of the liability issues in the relatively near future. A considerable period is likely to elapse before the quantum issues will be ready for trial. In this respect, I accept the submission of Alliance that both it and Quasar will have difficulties in preparing a claim for damages resulting from delays in the commencement of mining until it is known when mining will commence, a circumstance which is conditional upon registration of a native title mining agreement. If Quasar succeeds on the liability issues, it may be possible for mining to commence soon afterwards. If Alliance succeeds on those issues, the commencement of mining operations may be more distant. In this way, the deferring of a trial of the issues of quantum until after the determination of the issues of authority, duty and breach may enable the former to proceed on the basis of facts and circumstances actually known or anticipated, rather than on the basis of the Court’s assessment of a series of probabilities and possibilities.
Contrary to the submission of Quasar and Heathgate, the uncertainties and difficulties in an assessment of damages at this stage point in favour of a separate trial of the quantum issues, rather than the converse.
Effect of Liability Determination on Quantum Issues
I also accept Alliance’s submission that the determination of the statutory construction issue and the issues of authority, duty and breach will reduce the scope of the trial on quantum. If Alliance succeeds in those issues, then it will be its damages and/or equitable compensation (and Heathgate’s consequential claim) which will have to be assessed. On the other hand, if Alliance fails on those issues, it will be the damages and equitable compensation to which Quasar is entitled which will have to be assessed.
On the materials presently available, I am not prepared to act on the submission of Quasar and Heathgate that the damages to which Alliance or Quasar may be entitled will be of the same kind and require the same evidence. The submission was that the loss resulting from the delayed commencement of mining will be the same, with either Quasar entitled to recover 75 per cent of that loss or Alliance 25 per cent. If Quasar succeeds in the Alliance Action, it will no doubt contend that its damages should be assessed on the basis that steps would have been taken to commence mining operations soon after it reached agreement with ATLA on 11 June 2009. It will wish the Court to compare its actual or anticipated position at the time of the assessment, on the one hand, with the hypothetical position which would have pertained had it been able to register the First NTMA in June 2009. Alternatively, if Quasar fails in relation to the First NTMA but succeeds in relation to the Second, it will presumably ask the Court to compare its actual or anticipated position at the time of the assessment with its position if the Second NTMA had been registered in June 2010.
However, if Alliance succeeds then the relevant comparison may well be different. Its loss will depend on when Quasar or both joint venturers, acting in accordance with the JVA, could have negotiated a valid native title mining agreement and when, if such an agreement had been reached, mining operations would have commenced. This will not necessarily be the same times as would be appropriate in an assessment of Quasar’s damages. On the contrary, there is a real possibility that these times will differ. If that be so, the contingencies affecting the respective assessments are also likely to differ.
If all issues of quantum are tried at the one time, it will be necessary for both Alliance and Quasar to present evidence supporting their respective claims in the one hearing as neither will know whose damages/compensation are to be assessed. In this way, a separate trial of the quantum issues is likely to be shorter than the time required for the quantum issues in a single trial of all issues.
Alliance submitted that there is a further possibility, namely, that the issues in the liability trial may be resolved in a way which does not entitle either Alliance or Quasar to any damages or equitable compensation. While acknowledging that this is at least a theoretic possibility, I do not consider that it is desirable for the present application to be determined on that basis.
At present, it seems that an assessment of the damages to which either Alliance or Quasar may be entitled will, in the absence of a determination of the liability issues, involve some difficulty. Each seeks damages and/or compensation in respect of the losses which it alleges it has suffered by reason of the breaches of the other. In the main, those losses are said to be the loss of profits caused by delays to the start of production on the Four Mile Area. The assessment of the lost profits will require findings by the Court as to a number of matters, including the time at which mining would have commenced compared with the time when it does (or is likely to) commence; the costs associated with the development of a mine at the respective times; the costs associated with transporting and shipping to the relevant market; the prices which the minerals may be expected to reach; the joint venturers own internal costs; and other matters of this kind. Until a decision is made about the liability issues, there will inevitably be a considerable element of uncertainty about these matters in relation to each of the possible assessments.
An order for separate trials will permit the early hearing of the liability issues in both the Alliance and Quasar Actions.
All these factors point in favour of a separate trial. On the other hand, there are a number of considerations which point in the opposite direction.
Avoidance of Fragmentation
First, it is desirable that the Court avoid the potential for fragmentation of the trial. Some fragmentation is implicit in every action in which separate trials of some issues are ordered. Further, an appeal or appeals by the losing party on the liability issues can lead to additional fragmentation and consequential delay.
There is also the prospect of appeal against the damages/compensation assessment in favour of the successful party. This means that the one action could give rise to multiple appeals at each stage of its determination.
Overlapping Witnesses
The prospect that some witnesses will have to give evidence in relation to both the liability and quantum issues in the trial is an important consideration. Quasar identified Mr Wedd, the Director of Resource Development within Heathgate who provided the contracted services to Quasar on behalf of Heathgate, and Mr Roberts, a director of both Quasar and Heathgate, as witnesses who would give evidence in relation to both the liability and quantum aspects of the trial. Both reside and work outside South Australia, one interstate and one in the United States of America. It may be burdensome to them as individuals to have to give evidence twice in relation to the one action.
Credibility Findings at the First Stage
Quasar and Heathgate raised the prospect that the Court may have to make credit findings in relation to the evidence of Messrs Wedd and Roberts in the liability trial. This is also an important consideration. If findings of that kind were made, it may be inappropriate for the same judge to continue to hear and determine the quantum issues. The disadvantages which may arise should that occur are obvious.
It is difficult for the Court at the present time to make an assessment of the prospect that credibility findings will be necessary. Quasar and Heathgate have not yet delivered witness statements from Messrs Wedd and Roberts in relation to the Alliance Action, and they did not provide an outline of the evidence which they contemplate leading from these witnesses. This meant that their submissions on this topic were put at a somewhat abstract level.
It is not inevitable that the Court will need to make credibility assessments of the evidence of either Mr Wedd or Mr Roberts. I note, for example, that although the Quasar Action raises some of the same issues as are raised in the Alliance Action, Quasar contemplates those issues being determined by reference to the documentary evidence, including the affidavit of Mr Roberts which it has filed. This is so even though the issues of authority and breach of fiduciary and contractual duty also arise in the Quasar Action. I note in addition that Heathgate indicated that it did not oppose orders that the trials proceed on affidavit evidence.
Mr Wedd is not, at least presently, a proposed witness in the Quasar Action. However, Quasar has indicated that, in the light of Alliance’s claim in the Alliance Action that it (Quasar) failed to act in good faith, it is likely to lead evidence (presumably from Messrs Wedd and Roberts) regarding its intended purpose in negotiating and executing the First NTMA. This gives rise to the possibility that some credibility findings will be necessary, but in the absence of detail as to the nature of the evidence, it is difficult to be clear about the extent to which this may be so. In this circumstance I consider it appropriate to take into account that Messrs Wedd and Roberts are likely to give evidence in relation to liability and quantum issues, and there is at least some prospect that credibility findings may be required. As I have said, this counts against an order for separate trials.
Avoidance of Delay, Expense and Inconvenience
The experience of the courts is that separate trials of issues in the one action can be counter-productive and result in delays, expense and inconvenience. It is for this reason that the party seeking separate trials must establish a good case for the matter proceeding in that way.
Quasar and Heathgate disputed Alliance’s contention that separate trials would result in some saving of time and cost. To a large extent, this submission was based on the assumption that each of Alliance and Quasar would both be setting out to prove the same underlying losses, albeit with each entitled to a different proportion of those losses. For the reasons given earlier, I am not prepared to proceed on that basis. I am satisfied that the hearing of the quantum issues is likely to be considerably shortened once it is known whose damages or compensation are to be assessed. The Court will then have to assess only the losses suffered by the losing party.
Heathgate submitted that the resolution of the issues concerning the First NTMA in the Alliance Action, whether in favour of Alliance or in favour of Quasar and Heathgate, will have little effect on the commencement of mining. That is because the parties to the First NTMA have terminated it and, even if that termination be invalid, as Alliance contends, no party (including ATLA) is now seeking registration of the First NTMA. Further, Heathgate has negotiated and registered a separate native title mining agreement in respect of the area upon which it conducts the Beverley Uranium Mine and, accordingly, has no interest in persisting with an application for the registration of the First NTMA. In these circumstances, it submitted that the determination of the liability issues in the Alliance Action may well leave unresolved many of the issues necessary for an assessment of the damages or compensation to which Alliance or Quasar may be entitled.
There is force in this submission as it does seem, realistically, that the commencement of mining on EL 3666 is not now dependent upon registration of the First NTMA. However, that does not mean that the resolution of the liability issues in the Alliance Action will not narrow considerably the scope of the evidence necessary on the quantum issues. As I have indicated, once the liability issues have been resolved, it will be the claim of the successful party only which will have to be assessed.
I have already referred to the submission of both Quasar and Heathgate to the effect that in the event of separate trials, there is likely to be a considerable overlap of the evidence necessary at each stage. As I understood it, with the possible exception of the evidence concerning Quasar’s claim of estoppel, Quasar and Heathgate were referring in this respect to witnesses who may have to give evidence more than once. However, each identified only Messrs Wedd and Roberts as witnesses in this category and both the evidence and submissions on this topic did not descend into detail. Although Alliance has the onus, it is Quasar and Heathgate who know the evidence which they will wish to lead from Messrs Wedd and Roberts and the extent to which that evidence goes beyond that which appears in the documents. In these circumstances, it is difficult for the Court to make an assessment of the degree and extent of overlap which may be involved.
Conclusion on Separate Trials Application
As indicated earlier, there are a number of indicia pointing in each direction. However, despite the Court’s usual aversion to separate trials of issues in the one action, I am satisfied that it is appropriate in the present case. In addition to the matters mentioned above, I consider that this is a case in which it is very desirable that the issues between the parties be resolved as soon as practicable. Alliance and Quasar are in a continuing commercial relationship. The issues which have arisen between them are, while unresolved, precluding the development of a major project on which Quasar has made substantial expenditures. It is common ground that it will be a considerable time before the parties will be ready for a trial on all issues. However, a trial on the liability issues only can take place in the relatively near future and, once the liability issues have been resolved, the quantum issues will be of a narrower compass.
The prospect of multiple appeals is concerning, but not sufficient in the circumstances of this case to indicate that separate trials would be inappropriate.
Accordingly, I consider it appropriate to accede to Alliance’s application in that respect.
Joint Hearing of the Two Actions
Alliance seeks a joint hearing of the two actions on a number of different grounds. First, it is concerned that the determination of the issue of statutory construction concerning the Mining Registrar’s obligations in relation to the registration of the Second NTMA should not occur before the determination of the issue of Quasar’s authority to enter into the NTMA.
Secondly, Alliance referred to the common questions of fact and law which arise in the two proceedings. These are the scope of the authority conferred on Quasar by the JVA and, in particular, by cl 6.4; whether the JVA gives rise to fiduciary duties of the kind asserted by Alliance; and whether the JVA contains an implied term that Quasar should act in good faith towards Alliance. It contended that common questions would be even more obvious if its amendment application was allowed. The conduct in relation to the NTMA which Alliance asserts amounts to a breach of authority and of the pleaded duties is different, but it contends that even in relation to those matters, some similar issues will arise.
In addition, there are other connections between the two actions. For example, Alliance’s claim that the Second NTMA did not validly terminate the First; and the effect on Alliance’s claim for damages and equitable compensation if that claim fails.
Alliance contended that these considerations point strongly in favour of a joint hearing. It referred to Pegasus Gold Inc v Bateman Project Engineering Pty Ltd[14] and to Weimann v Allphones Retail Pty Ltd (No 3)[15] as authorities in which the commonsense of determining common questions of law and fact in the one hearing, and the avoidance of a risk of inconsistent findings in separate proceedings, was emphasised.
[14] [1999] FCA 490 at [3]-[4], [8].
[15] [2009] FCA 1292 at [29], [48].
Finally, Alliance submitted that considerations of convenience and efficiency indicate the appropriateness of the two actions being heard together. If an order for joint hearings is made, the Quasar Action should be wholly heard and determined at the same time as the hearing and determination of the liability issues in the Alliance Action.
It was common ground that the Court’s powers with respect to the control of litigation include a power to order the joint hearing of two or more actions. Quasar and Heathgate referred to the summary by Besanko J in Humphries v Newport Quays Stage 2A Pty Ltd[16] of the matters which are relevant to the exercise of the discretion to order joint trials. Besanko J listed the following matters:
[16] [2009] FCA 699 at [11].
1.     Are the proceedings broadly of a similar nature?
2.     Are there issues of fact and law common to each proceeding?
3.Will witnesses (lay and expert) in one proceeding be witnesses in one or more of the other proceedings?
4.Has there been an alternative proposal put forward that there be a test case and have the parties agreed to abide the outcome, or, at least, the determination of common issues of fact and law?
5.Is there a prospect of multiple appeals with substantial delays if the proceedings are not tried at the same time?
6.Will there be a substantial saving of time if the proceedings are tried at the same time, compared with each proceeding being tried separately?
7.Will an order that the proceedings be tried at the same time create difficulties in terms of trial management, complexity of procedural issues and difficulties in determining cross-admissibility of evidence?
8.     Is one proceeding further advanced in terms of preparation for trial than the others?
9.Are there parties to one or some only of the proceedings who will be inconvenienced if all of the proceedings are tried at the same time?
Quasar and Heathgate submitted that consideration of these matters in the context of the present proceedings points strongly in favour of the proceedings being heard separately. It is convenient to consider the various factors in turn.
Are the Two Proceedings Similar in Nature?
Quasar and Heathgate submitted that the two proceedings are not similar. They submitted that the Quasar Action concerns the proper interpretation of the Mining Act whereas the Alliance Action concerns the First NTMA and the parties’ rights and obligations under the JVA.

The two proceedings are in some respects similar and in other respects dissimilar. Quasar commenced its action as judicial review proceedings, whereas the Alliance Action is concerned with the vindication of private rights (both in the primary claim and in the cross-claims). The proper construction of Part 9B of the Mining Act is at the heart of the Quasar Action whereas that will be a more peripheral issue in the Alliance Action. Further, the parties to the two actions are not identical.
On the other hand, there are a number of similarities in that both actions raise the question of Quasar’s authority to enter into a native title mining agreement which binds both joint venturers; both actions involve the question of whether the JVA gives rise to fiduciary duties on the part of Quasar and if so, the content of those duties; both actions involve the question of whether the JVA contains an implied term requiring Quasar to act with good faith towards Alliance; and both actions involve the question of whether Quasar has exceeded its authority or acted in breach of fiduciary and contractual duties by its entry into successive native title mining agreements (albeit with each containing different terms).
If the Quasar action was solely an action for judicial review, then there would be more to be said for the proposition that the two proceedings are not similar in character. However, that is not the case.
Are there Common Issues of Law and Fact?
Quasar and Heathgate submitted that even if the statement of claim in the Alliance Action is amended there would be only one issue which overlapped the two proceedings, namely, the scope of the authority granted by cl 6.4 of the JVA. For the reasons given earlier, I do not accept that view of the matter. There are sufficient number of common issues of common law and fact to make a joint hearing desirable, if, for no other reason, than to avoid the possibility of inconsistent outcomes on the numerous issues which arise.
Overlapping of Evidence
Quasar and Heathgate submitted that a number of witnesses will be necessary in the Alliance Action whereas the parties have already filed in the Quasar Action the affidavit evidence upon which they will rely. Quasar relies upon the affidavits of Mr Roberts sworn on 29 November 2010; the Mining Registrar relies on her own affidavit sworn 25 February 2011; and Quasar relies upon affidavits of Mr Johnston and Ms Owen each sworn on 25 February 2011.
Alliance has indicated that in relation to the liability aspects of its action it will also lead evidence from Mr Johnston and Ms Owen. Quasar indicated that in relation to the liability aspects of the Alliance Action it also wished to call Messrs Roberts and Wedd and possibly three further witnesses: Mr Gaudio, Ms Steed and Mr McConachy.
This means that there is a significant overlap in the identity of the witnesses who will give evidence in the liability trial. Further, the content of the respective affidavits of Messrs Roberts and Johnston in the Quasar Action indicates that there is a considerable overlap between the evidence which will be admitted in each action. Mr Roberts, for example, deposes at some length to the circumstances relating to the negotiation and execution of the First NTMA, the Mining Registrar’s refusal to register the First NTMA, and goes so far as to exhibit all the pleadings in the Alliance Action. In addition, Quasar referred to a number of paragraphs in its amended defence in the Alliance Action which will have to be the subject of evidence. I accept that the content of those paragraphs indicates that evidence will be required but, at least on my present understanding, anticipate that Quasar will wish to rely on much of the same evidence in relation to the issues in the Quasar Action.
My decision on Alliance’s application for a separate hearing of the quantum issues in the Alliance Action means that the additional witnesses to be called in relation to quantum can be ignored for present purposes.
Prospect of Separate Appeals
Quasar and Heathgate made the point that the decisions in the two sets of proceedings could give rise to separate appeals. I acknowledge that this is so but do not regard it as being a significant matter in the determination of the present matter. I note that Besanko J in Humphries v Newport Quays was more concerned about the prospect of multiple appeals causing substantial delays if the proceedings were not tried at the same time. If anything, that consideration points in favour of a joint hearing in the present circumstance but as I say, I do not regard that as a matter of much weight in the present context.
Saving of Time
Quasar and Heathgate submitted that a joint hearing will not result in any substantial saving of time. They submitted that a joint hearing would result in the parties to the Quasar Action being involved in a much longer hearing than would be the case if the Quasar Action was tried separately. I accept that this is so. I also accept that it is not possible at the present time to reach a firm conclusion about the time required for a joint hearing of the Quasar Action and the liability aspects of the Alliance Action. It is possibly three to four days on one estimate or six to 10 days on another estimate, whereas it may be possible for the trial of the Quasar Action to be completed within two or three days. That is a factor pointing against a joint hearing.
On the other hand, as noted previously, Alliance and Quasar are in a continuing relationship under the JVA and in dispute about the commencement of what seems to be a major mining project. Their relationship is such that they have not held any joint management meetings as contemplated by the JVA since June 2009. It is in their interests and in the public interest for the issues between them to be resolved as soon as practical. That is less likely to be achieved if the two sets of proceedings are not heard together as, even after the determination of the first, the other set of proceedings will remain on foot. In this way, a joint hearing of the two actions will result in some saving of time.
Difficulties in Trial Management and Complexity of Procedural Issues
Quasar and Heathgate submitted that a joint trial would involve difficulty because some evidence would be admissible in one action but not in the other. In the present case, I do not attach much weight to this consideration. Issues of this kind are not unusual in trials and can usually be managed appropriately.
Quasar Action more Advanced than Alliance Action
Quasar and Heathgate submitted that the two actions are at the opposite ends of the spectrum in terms of readiness for trial. They submitted that whereas the Quasar Action is ready for trial, the pleadings in the Alliance Action have not yet been finalised, and that Alliance’s amendment to its statement of claim will require further disclosure of documents. In addition, there is the prospect of further interlocutory disputation delaying the Alliance Action coming to trial. They submitted that an order for joint hearings would have the effect that the Quasar Action would like dormant for many months while the liability aspects of the Alliance Action were made ready for trial.
I regard this as a significant factor counting against an order for joint trials. However, as noted earlier in these reasons, the parties to the Quasar Action have not yet filed a certificate of readiness. In addition, Quasar’s submissions on the present applications indicate that it may not yet have given full consideration to the implications for the conduct of the Quasar Action of the issues of authority, and breach of fiduciary and contractual duty.
Further, the order for a separate trial of the quantum issues will shorten the time which the parties will need in order to be ready for the trial in the Alliance Action. I note again the statement of counsel for Alliance as to the relatively short period of time it will need in order to ready itself for a trial of the liability aspects in its action.
Different Parties
Quasar and Heathgate drew attention to the inconvenience which Heathgate and the Mining Registrar will suffer in the event of joint hearings. Heathgate is not a party to the Quasar Action and so is not concerned directly with the proper construction of Part 9B of the Mining Act. It will be inconvenienced by having to attend during the part of the proceedings which concern that issue.
The Mining Registrar is not a party to the Alliance Action. Although the Registrar has an interest in the outcome of the issue concerning Quasar’s authority, she has indicated her intention to leave the conduct of that issue to Alliance. The Registrar has also indicated that she is likely to seek permission to be excused from attendance at those parts of the hearing which do not concern the proper construction of the Mining Act.
I accept that the joint hearings will result in some inconvenience to Heathgate and the Registrar. I also accept that it may not be always possible in a joint trial to allocate periods of time within which discrete issues will be addressed so that Heathgate and the Registrar can, if they wish, be excused.
I take into account however that the Registrar did not wish to be heard in opposition to a joint hearing of the two actions.
Summary on Joint Hearing Application
A number of the factors addressed above point in each direction. Ultimately I am persuaded that an order for the joint hearing of the two actions should be made. The principal reasons for this conclusion are, first, the number of common issues in the two actions; the number of common witnesses in the two actions (speaking now of the liability aspects); my impression that the inconvenience to Heathgate and the Mining Registrar is manageable; and my conclusion that it is desirable in the interests of the parties for the issues arising in both actions to be determined expeditiously.
Summary
In summary, for the reasons given above, I grant the plaintiff permission to amend its statement of claim in the form of Exhibit ALB 1 to the affidavit of Ms Bower affirmed on 28 April 2011; order that, subject to any contrary direction of the trial judge, the issues of quantum be tried separately from, and subsequent to, the trial of the other issues in the Alliance Action; and, subject to any contrary order of the trial judge, order that the liability aspects of the Alliance Action be heard at the same time as the Quasar Action. I direct the parties to bring in minutes to give effect to these orders.