AQUILA RESOURCES LTD & ANOR -v- PASMINCO LTD (ADMINISTRATORS APPOINTED) & ORS [2002] WASC 314

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASC 314
Case No:	CIV:2618/2001	Heard:	16 DECEMBER 2002
Coram:	MASTER SANDERSON	Delivered:	20/12/02
No of pages:	10	Judgment Part:	1 of 1
Result:	Appeal allowed in part
Category:	B
PDF Version

Parties:	AQUILA RESOURCES LTD (ACN 092 002 769) AQUILA EHM PTY LTD (ACN 095 529 445) PASMINCO LTD (ADMINISTRATORS APPOINTED) (ACN 004 368 674) MIM HOLDNGS LTD (ACN 009 814 019) ERNEST HENRY MINING PTY LTD (ACN 008 495 574) SAVAGE RESOURCES LTD (ADMINISTRATORS APPOINTED) (ACN 009 551 624) SAVAGE EHM FINANCE PTY LTD (ADMINISTRATORS APPOINTED) (ACN 071 375 221)
Catchwords:	Practice and procedure Application for an order for inspection where parts of a document blocked out Adequacy of description of document over which privilege claimed Appeal from decision of Case Management Registrar Turns on own facts
Legislation:	Nil
Case References:	Alfred Crompton Amusement Machines Ltd v Commissioners of Customs and Excise (1971) 2 All ER 843 Carew v White (1842) 5 Beav 172 Churton v Frewen (1865) 2 Dr & Sm 390 Commissioner of Taxation v Coombes [1999] FCA 842 Curlex Manufacturing Pty Ltd v Carlingford Australia General Insurance Ltd (1987) 2 Qd R 335 Gardner v Irvine (1878) 4 Ex D 49 Argyle Brewery Pty Ltd (t/as Craig Brewery Bar & Grill) v Darling Harbourside (Sydney) Pty Ltd (1994) 120 ALR 537 Bushtown Holdings Pty Ltd v Conlan [1999] WASC 123 CTC Resources NL v Australian Stock Exchange Ltd (2000) 22 WAR 48 Dalleagles v ASC (1991) 4 WAR 325 Diamond Offshore General Co v Woodside Energy Ltd [2000] WASC 204 Dubai Bank Ltd v Galadari (1989) 3 WLR 1044 Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 GE Capital Corporate Finance Group Ltd v Bankers Trust Co [1995] 1 WLR 172 Goldace Holdings Pty Ltd v Vodafone Network Pty Ltd [2000] WASC 267 Graham v Sutton, Carden & Co [1897] 1 Ch 761 Grant v Downs (1976) 135 CLR 674 Gray v Associated Book Publishers [2002] FCA 1045 Hadid v Lenfest Communications Inc, unreported; FCA; 4 November 1996 John Allan Ltd v Keegan [1968] WAR 125 McCarthy v Dolpag Pty Ltd [2000] WASCA 106 Middleton v Western Australia (1996) 17 WAR 201 Mulley v Manifold (1959) 103 CLR 341 National Crime Authority v S (1991) 100 ALR 151 Smith's Weekly Publishing Co Ltd v Sunday Times (1923) 31 CLR 552 Southern Equities Corp Ltd (In Liq) v Arthur Andersen & Co (No 6) [2001] SASC 358 Southern Equities Corp Ltd (In Liq) v Arthur Andersen & Co (No 7) [2002] SASC 1 Southern Equities Ltd v Western Australian Government Holdings (1993) 10 WAR 1 Telebooth Pty Ltd v Telstra Corporation Ltd, unreported; 17 August 1993 Tipperary Developments Pty Ltd v Western Australia [1999] WASC 62 Water Authority of Western Australia v AIC Holdings Pty Ltd (1991) 7 WAR 135 Waterford v The Commonwealth of Australia (1987)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] WASC 314
Decision Date

CaseChat Overview and Summary

This appeal arose out of an application by the plaintiffs, Aquila Resources Ltd and Aquila EHM Pty Ltd, to inspect certain documents discovered by the defendants, Pasminco Ltd and MIM Holdings Ltd. The appeal focused on two main issues: first, whether the defendants should be required to give inspection of the discovered documents in their entirety; and second, whether inspection should be ordered of the two documents over which privilege was claimed. The court found that while the defendants could properly cover up parts of a document which it was not required to discover, the parts of document 9, which contained information about the amount MIM contemplated paying for the Mine and the manner of payment, should be available for inspection as they were relevant to the issues between the parties. However, the court found that the material omitted from the other documents was irrelevant and no inspection ought be ordered. Regarding the second issue, the court found that the description of the documents provided by the deponent, Ms Gibney, was inadequate and did not explain why these documents attracted privilege. The court allowed the appeal and ordered that Ms Gibney, or some other officer of MIM, provide further affidavit evidence in relation to the claim for privilege. Once that evidence was in, the matter could be further considered.

Orders