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Ashwin v Minara Resources Ltd

Ashwin v Minara Resources Ltd

Case [2006] WASC 75 10 May 2006

Native Title Act 1993

Representative Proceedings

Fiduciary Duty

Agreement to Negotiate

Indigenous Peoples & Native Title Law

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ASHWIN & ORS -v- MINARA RESOURCES LTD [2006] WASC 75

Link to Appeal :

[2007] WASCA 107

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 75
Case No:	CIV:2071/2005	Heard:	9 MARCH 2006
Coram:	MASTER SANDERSON	Delivered:	10/05/06
No of pages:	14	Judgment Part:	1 of 1
Result:	Representative pleadings permitted Statement of claim struck out in part with leave to replead
Category:	A
PDF Version

Parties:	RAYMOND WILLIAM ASHWIN GEOFFREY ALFRED ASHWIN RALPH EDWARD ASHWIN JUNE ASHWIN MINARA RESOURCES LTD (ACN 060 370 783)
Catchwords:	Native title Proper plaintiffs Representative nature of proceedings Application to strike out Adequacy of plea of fiduciary duty Whether action based on an agreement to negotiate enforceable
Legislation:	Native Title Act 1993 (Cth), s 26, s 26(1), s 29, s 31, s 32, s 33, s 61(1), s 61(2), s 61(3), s 253 Rules of the Supreme Court 1971 (WA), O 6 r 5, O 18 r 12(1)
Case References:	Aiton Australia Pty Ltd v Transfield Pty Ltd (1999) 153 FLR 236 Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600 Carnie v Esanda Finance Corp Ltd (1995) 182 CLR 398 Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd (1991) 24 NSWLR 1 Con Kallergis Pty Ltd (T/A Sunlighting Australasia Pty Ltd) v Calshonie Pty Ltd (Formerly C W Norris Pty Ltd) (1998) 14 BCL 201 Courtney & Fairbairn Ltd v Tolaini Brothers (Hotels) Ltd [1975] 1 All ER 716 Expectation Pty Ltd v Pinnacle VRB Ltd [2004] WASCA 261 North Ganalanja Aboriginal Corporation v The State of Queensland (1996) 185 CLR 595 Re Tottenham v Tottenham [1896] 1 Ch 628 The Wik Peoples v The State of Queensland (1996) 187 CLR 1 Walford v Miles [1992] 2 AC 128 Aiton Australia Pty Ltd v Transfield Pty Ltd [1999] NSWSC 996 Automasters Australia Pty Ltd v Bruness Pty Ltd & Anor [2002] WASC 286 Banque des Marchands de Moscou v Kindersley [1951] 1 Ch 112 Breen v Williams (1996) 186 CLR 71 Brownley v State of Western Australia WAIG 151 of 1988 Central Exchange Ltd v Anaconda Nickel Ltd (2002) 26 WAR 33 Day v William Hill (Park Lane) Ltd [1949] 1 KB 632 Dempster v NCSN (1993) 9 WAR 215 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Edmeades v Thames Board Mills Ltd [1969] 2 All ER 127 Francourt v Mercantile Credits Ltd (1983) 154 CLR 87 Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd (1999) ATPR 41703 Grovenor v Permanent Trustee Co of New South Wales Ltd (1966) 40 ALJR 329 Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41 Kimberley Downs v State of Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1986 Kirika v Zurich Australian Insurance Ltd [2002] WASCA 233 McKechnie v Campbell (1996) 17 WAR 62 Templeton v Leviathan Pty Ltd (1921) 30 CLR 34 Thiess Contractors Pty Ltd v Placer (Granny Smith) Pty Ltd (2000) 16 BCL…

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.

Continue reading Ashwin v Minara Resources Ltd

Details

AGLC: Ashwin v Minara Resources Ltd [2006] WASC 75
Case: [2006] WASC 75
Decision Date

CaseChat Overview and Summary

Ashwin & Ors v Minara Resources Ltd involved an application by the defendant, Minara Resources Ltd, to strike out parts of the plaintiffs' statement of claim and to stay the proceedings until all proper plaintiffs were identified and joined. The plaintiffs, Raymond William Ashwin and others, claimed native title over certain land and alleged that the defendant had not fulfilled its obligations under a deed with Mr Ashwin, who was an elder of the Wutha People. The dispute centred on the representative nature of the proceedings and the enforceability of an agreement to negotiate future matters. The court held that representative pleadings were appropriate and that the plaintiffs had the right to commence and maintain such proceedings without prior court approval, subject to the defendant's ability to object. The court found the plaintiffs' plea of a fiduciary relationship inadequate but granted leave to replead. Regarding the enforceability of the agreement to negotiate, the court declined to strike out the claim, noting the importance of careful consideration of the evidence in this evolving area of law. The court ordered the parties to discuss the form of orders and costs.

Orders