Arimco Mining Pty Ltd (Administrator appointed) (Receiver and Manager appointed) v Minister for Mines
[1999] WASC 214
ARIMCO MINING PTY LTD (Administrator appointed) (Receiver and Manager appointed) & ORS -v- MINISTER FOR MINES & ANOR [1999] WASC 214
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASC 214 | |
| Case No: | CIV:1566/1999 | 5 OCTOBER 1999 | |
| Coram: | A/MASTER CHAPMAN | 4/11/99 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Action stayed | ||
| PDF Version |
| Parties: | ARIMCO MINING PTY LTD (Administrator appointed) (Receiver and Manager appointed) (ACN 002 807 365) ORESEARCH NL (ACN 009 053 061) MARK GARETH CREASY MINISTER FOR MINES HOT HOLDINGS PTY LTD (ACN 009 244 615) |
Catchwords: | Practice and procedure Summary judgment Strike out the statement of claim Stay of action Non compliance with programming orders |
Legislation: | Rules of the Supreme Court 1971, O 1 r 4B, O 16 r 1, O 20 r 19 |
Case References: | Michael v Nicolson, unreported; FCt SCt of WA; Library No 950660; 1 December 1995 Blair v Curran (1939) 62 CLR 464 Farr v Shire of Manjimup, unreported; SCt of WA (Seaman J); Library No 930349; 15 June 1993 Port of Melbourne Authority v Anshun Pty Ltd [1981] 147 CLR 602 Reichel v Magrath (1889) 14 App Cas 665 State of Queensland v JL Holdings (1997) 189 CLR 146 Stephenson v Garnett [1898] 1 QB 677 Tanning Research Laboratories Inc v O'Brien (1990) 169 CLR 332 Walton v Gardiner (1993) 177 CLR 392 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- ORESEARCH NL (ACN 009 053 061)
First Plaintiffs
MARK GARETH CREASY
Second Plaintiff
AND
MINISTER FOR MINES
First Defendant
HOT HOLDINGS PTY LTD (ACN 009 244 615)
Second Defendant
Catchwords:
Practice and procedure - Summary judgment - Strike out the statement of claim - Stay of action - Non compliance with programming orders
(Page 2)
Legislation:
Rules of the Supreme Court 1971, O 1 r 4B, O 16 r 1, O 20 r 19
Result:
Action stayed
Representation:
Counsel:
First Plaintiffs : Mr M J McCusker QC & Mr C P Stevenson
Second Plaintiff : Mr M J McCusker QC & Mr C P Stevenson
First Defendant : Ms C F Jenkins
Second Defendant : Mr C L Zelestis QC & Mr C G Colvin
Solicitors:
First Plaintiffs : Mallesons Stephen Jaques
Second Plaintiff : Mallesons Stephen Jaques
First Defendant : State Crown Solicitor
Second Defendant : Lawton Gillon
Case(s) referred to in judgment(s):
Michael v Nicolson, unreported; FCt SCt of WA; Library No 950660; 1 December 1995
Case(s) also cited:
Blair v Curran (1939) 62 CLR 464
Farr v Shire of Manjimup, unreported; SCt of WA (Seaman J); Library No 930349; 15 June 1993
Port of Melbourne Authority v Anshun Pty Ltd [1981] 147 CLR 602
Reichel v Magrath (1889) 14 App Cas 665
State of Queensland v JL Holdings (1997) 189 CLR 146
Stephenson v Garnett [1898] 1 QB 677
Tanning Research Laboratories Inc v O'Brien (1990) 169 CLR 332
Walton v Gardiner (1993) 177 CLR 392
(Page 3)
1 ACTING MASTER CHAPMAN: On 17 August 1999 the second defendant filed a chamber summons seeking leave to bring the application for summary judgment or alternatively, to strike out the statement of claim or for an order to stay the proceedings. On 18 August 1999 the first defendant brought a similar application. Both summonses came before the court on 25 August 1999 and certain programming orders were made. The issues raised in the applications were obviously matters of substance and the court would have been greatly assisted if the programming orders given had been complied with. Indeed, several affidavits were handed up during the course of the hearing of the special appointment, a practice which has nothing to recommend it.
2 At the outset counsel for the plaintiffs submitted that part, at least, of the applications were out of time and that I ought deal with that question before dealing with the applications proper. That submission had some merit but I was persuaded by the particular circumstances which surround these applications that the preferable course was to hear submissions as to the background and nature of the case. I have now heard those submissions.
3 It is clear that each of the defendants were aware that leave was required as it was an issue included in the summonses filed. The question was not addressed in the written submissions of either defendants, nor were any affidavits filed in support prior to the hearing of the special appointment. The written submissions of the plaintiffs make it apparent that the issue was a live one and it is thus surprising that the issue had not been addressed. Again this course has little to recommend it.
4 I accept that the general policy in relation to summary judgment and strike out applications is that they must be brought at an early stage. The reason is obvious. The longer the application is delayed the greater the potential for unnecessary costs being incurred by the parties and the court.
5 In Michael v Nicolson, unreported; FCt SCt of WA; Library No 950660; 1 December 1995 it is made clear that the onus rests upon the applicant to justify the delay by way of affidavit evidence. At the commencement of this hearing no such evidence was before the court. During course of the hearing the first defendant handed up the affidavit of Colin Peter Wayte sworn 5 October 1999 and the second defendant an affidavit of Garry Hamilton Lawton sworn 5 October 1999. I must say that neither of those affidavits were very persuasive.
(Page 4)
6 I am not persuaded that Michael v Nicolson is authority for the proposition that if there is no evidence in relation to the delay, that that will always be fatal to an application for an extension of time. It would seem to me that in most cases it would be. However, where it is apparent to the court that to allow a matter to proceed would be futile, leave might well be granted where no, or no persuasive evidence has been forthcoming. To do otherwise would seem to me to be unjust. Where the court is of the view that costs had been incurred because of the lateness of the application this could be remedied by an appropriate costs order.
7 The matter before me is not one where no explanation was forthcoming. It is one where the explanation given is far from satisfactory. Nonetheless, having considered all of the issues which surround this application, I would be inclined to grant the leave to the extent that it may be necessary.
8 The relevant background to these applications is conveniently set out in the written submissions of the second defendant, the bulk of which I include for completeness:
"The Nature of the Previous Proceedings
- 1. On 10 August 1998, the Minister for Mines decided to grant an application for an exploration licence to Hot Holdings Pty Ltd.
2. The application had been lodged on 15 October 1992 and had been the subject of numerous court hearings in the Supreme Court and the High Court which delayed the consideration of the application.
3. By ex parte originating motion in action CIV 1088 of 1999, the plaintiffs in these proceedings sought, as against the Minister for Mines, orders nisi for writs of prohibition, certiorari and prohibition as well as declaratory relief that the decision to grant the application was void.
4. Both the Minister and Hot Holdings Pty Ltd were given leave to be heard on the application.
5. The application was heard by Heenan J on 26 May 1999 and judgment was delivered on 23 June 1999 (Creasy v Hot Holdings Pty Ltd [1999] WASC 69), at which time
(Page 5)
- the court was referred, by the plaintiffs, to a further affidavit of Mr Pullinger filed on 22 June 1999 concerning the shareholding, in a company with an interest in the grant of the exploration licence to Hot Holdings, of an adult son of one of the officers of the Mines Department allegedly involved in the decision to grant the exploration licence.
- Decision in Previous Proceedings
6. Heenan J outlined the 3 grounds upon which the orders were sought in the following terms (Creasy, [6]):
There are three main, alternative, grounds upon which the motion is based. In summary, it is said first that Hot Holdings failed to comply with s 118 of the [Mining] Act and that compliance is a necessary pre-condition to the grant of an exploration licence. Secondly, it is said that, by reason of implications arising from the pecuniary interest of an officer of the Department in the success of Hot Holdings, the applicants have been denied procedural fairness. Thirdly, it is said that the Minister failed to consider the merits of the competing applications and to determine whether, in his opinion, as between the competing applicants, 'all things were equal' before he afforded priority pursuant to s 105A.
7. Heenan J found that there was no arguable case as to the second and third grounds (bias and s 105A), but was 'satisfied that there is an arguable case as to whether the Minister has made an error of law in deciding to grant the application of Hot Holdings notwithstanding its non-compliance with s 118'; Creasy, [35]. He also concluded that the claim for declaratory relief should be referred to the Full Court; Creasy [35].
Appeal in Previous Proceedings
8. An appeal against the decision of Heenan J was lodged on 14 July 1999.
(Page 6)
- 9. In the appeal, the plaintiffs in these proceedings seek an order that the Full Court rely upon the affidavit of Mr Pullinger of 22 June 1999 in support of the appeal;"
9 The first defendant submits that:
1. In the two proceedings ie CIV 1088 of 1999 and this proceeding:
(a) the parties are identical;
(b) the decision sought to be impugned is the same;
(c) the legal issues joined between the parties are the same; and
(d) apart from one aspect, the facts relied upon in support of the actions is the same.
2. In Supreme Court CIV No 1088 of 1999 Heenan J on 23 June 1998 granted an order nisi for writs of prohibition, mandamus and certiorari in relation to the non compliance with s 118 of the Mining Act 1978. He found that there was not an arguable case in relation to the remaining grounds. Therefore the s 118 ground is now the subject of an order nisi returnable before the Full Court.
This I accept to be so.
10 In essence the defendants raise three arguments in support of the orders they seek:
11 (1) Abuse of the process of the court: It was argued that this matter is an abuse of process of the court because:
(a) the Full Court is clearly the more appropriate forum to deal with the matter;
(b) it will allow the plaintiffs to relitigate issues that have been disposed of by Heenan J and to continue to litigate issues after their disposal by the Full Court;
(c) they disregard the decision of Heenan J that the question of declaratory relief should be referred to the Full Court;
(d) it is manifestly unfair to require Hot Holdings to defend two proceedings in which the same issues are raised;
(e) it is completely contrary to the objects stated in O 1 r 4B of the Rules of Court;
(Page 7)
- (f) on 26 May 1999 senior counsel for the plaintiffs told Heenan J that the purpose of the issue of the writ in the action was to obtain discovery and inspection and thus this action is no more than a fishing expedition.
12 (2) Estoppel: It is argued that a party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment.
13 (3) The pleadings do not show a good cause of action: It is said that on two claims the defendants' pleadings do not show a good cause of action and, as to the third, that matter has been sent to the Full Court for its determination.
14 It is submitted that what the plaintiffs are in essence seeking to do, is to have this matter proceed unaffected by the proceedings before the Full Court, it being asked to deal with the order nisi in respect of the s 118 issue and the remaining two issues to be dealt with by way of appeal.
15 I think it inappropriate to deal with the issues which would be required of me to consider the summary judgment or the strike out application. To do so would require me to consider similar questions which Heenan J has already decided. I do not consider that I am necessarily bound by his Honour's decision but I certainly consider it very persuasive. It is highly unlikely that I would depart from it but there remains the potential for doing so. Given that the processes have been put in place for the Full Court to further consider these issues, I consider it highly undesirable to embark upon the task myself.
16 Further, I am of the view that to run the present action when the same issues raised will shortly be before the Full Court of this Court, either by way of order of Heenan J of 23 June 1998 or by way of appeal from parts of that order, would be contrary to the stated objectives of O 1 r 4B of the Rules of Court. There is clearly the potential for substantial resources of both the court and the parties to be wasted in what may well be a fruitless exercise. The cost of litigation is the subject of frequent public comment which, in my view, cannot and should not be ignored. Order 1 r 4B presents a clear message that the very thing the plaintiffs seek to do is not appropriate.
17 I am of the view that to run these two actions simultaneously is an abuse of process of the court. The issues which are sought to be agitated in this action will shortly be before the Full Court of this Court. The potential for conflicting judicial pronouncement is apparent. Heenan J has
(Page 8)
- already made a pronouncement on the same issues which should be allowed to stand, subject to the results of the appeal brought. To allow the decision to be called into question, as it would be in this action, other than by way of the appeal process which has already been put in train is clearly undesirable.
18 I am not persuaded that I should summarily dismiss this action nor that I should strike out the statement of claim. I am, however, persuaded that it is undesirable for CIV 1088 of 1999, FUL 101 of 1999 and CIV 1566 of 1999 to proceed together. CIV 1088 of 1999 and FUL 101 of 1999 should be permitted to run their course. I would therefore stay CIV 1566 of 1999 until such time as the matters referred to the Full Court in CIV 1088 of 1999 and the issues raised in the appeal FUL 101 of 1999 are heard and determined by the Full Court. The stay is without prejudice to the plaintiffs' rights to move for declaratory relief in relation to any issue which arises out of CIV 1088 of 1999 or FUL 101 of 1999 in respect of which the Full Court holds there is an arguable case. At that juncture the matter can be reviewed to determine whether or not there is any issue still alive to be dealt with. I do not consider the plaintiffs will be materially prejudiced by such a course, if at all.
19 I turn now to consider the non compliance with the programming orders made on 25 August 1999.
20 As counsel for the plaintiffs conceded in argument, to breach programming orders is wrong. With this I would agree, particularly in this case as the breaches have occurred without explanation or justification. The court has an interest in having its rules and orders complied with and if parties choose to breach them they must expect that consequences will flow.
21 In this case each party did not comply with the programming orders. I have allowed the material which did not comply to be relied upon in the hearing but parties must expect there may be occasion when this will not be permitted. I therefore propose that any costs orders I make will take into account the respective non compliance.
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