Barrick Gold of Australia Ltd v F L SMIDTH Inc [No 4]

[2009] WASC 323

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   BARRICK GOLD OF AUSTRALIA LTD -v- F L SMIDTH INC [No 4] [2009] WASC 323

CORAM:   MASTER SANDERSON

HEARD:   27 OCTOBER 2009

DELIVERED          :   6 NOVEMBER 2009

FILE NO/S:   CIV 1753 of 2001

BETWEEN:   BARRICK GOLD OF AUSTRALIA LTD (ACN 008 143 137)

NORKAL PTY LTD (ACN 008 940 743)
KALGOORLIE LAKE VIEW PTY LTD (ACN 004 990 274)
NEWMONT GRPL PTY LTD (formerly GOLD RESOURCES PTY LTD) (ACN 008 976 958)
NORTH KALGURLI MINES PTY LTD (ACN 008 747 886)
First Plaintiffs

KALGOORLIE CONSOLIDATED GOLD MINES PTY LTD (ACN 009 377 619)
Second Plaintiff

AND

F L SMIDTH INC
First Defendant

FLSMIDTH MINERALS AUSTRALIA PTY LTD
Second Defendant

GRD MINPROC LTD (ACN 008 992 694)
Third Defendant

LYCOPODIUM ENGINEERING PTY LTD (ACN 055 880 209)
Fourth Defendant

SIEMENS LTD (ACN 004 347 880)
Fifth Defendant

NEWMONT POWER PTY LTD (formerly NORMANDY POWER PTY LTD) (ACN 065 116 841)
Sixth Defendant

Catchwords:

Practice and procedure - Directions for trial - Turns on own facts

Legislation:

Nil

Result:

Directions given

Category:    B

Representation:

Counsel:

First Plaintiffs               :     Mr J A Thomson

Second Plaintiff            :     Mr J A Thomson

First Defendant             :     Mr P T Keays

Second Defendant         :     Mr P T Keays

Third Defendant           :     Mr C A Ryder

Fourth Defendant          :     Ms F Vernon

Fifth Defendant            :     Mr B A Winburn-Clarke

Sixth Defendant            :     Mr T I Masson

Solicitors:

First Plaintiffs               :     Jackson McDonald

Second Plaintiff            :     Jackson McDonald

First Defendant             :     Sparke Helmore

Second Defendant         :     Sparke Helmore

Third Defendant           :     Corrs Chambers Westgarth

Fourth Defendant          :     Tottle Partners

Fifth Defendant            :     SRB Legal

Sixth Defendant            :     Maxim Litigation Consultants

Case(s) referred to in judgment(s):

Nil

1. MASTER SANDERSON:  This matter was brought back as a result of a notice issued by the plaintiffs relating to the defendants' failure to comply with certain programming orders.  The fifth defendant also issued a chamber summons seeking an extension of time to exchange witness statements.  After hearing the parties I indicated that I would make certain programming orders and would publish short reasons for doing so.  These are those reasons.

2. This is an action which involves a great deal of technical evidence and where a sum in the region of $100 million is involved.  The events which gave rise to the action occurred in 1996.  The writ was not issued until some six years later.  Whatever the complexities of the matter and whatever is at stake so far as the parties are concerned, the time has come where the action either must be settled or a trial must take place.  The orders I intend to make have that end in mind.

3. The plaintiffs have filed all of their witness statements with the result that the defendants have all of the evidence put against them.  They have had that evidence for over 12 months.  Programming orders were made requiring the defendants to file and serve their evidence by 30 September 2009.  None of the defendants complied with that order.  By their notice of non‑compliance the plaintiffs drew the omission of the defendants to the court's attention.  They wanted an order that the defendants file all of their witness statements by 30 October.

4. The defendants sought to have the time for filing of their evidence extended to 29 January 2010.  Only the fifth defendant filed an affidavit explaining why its evidence could not be filed until then.  I need not detail that evidence.  It is sufficient if I say that I am satisfied that the fifth defendant would simply not be in a position to file its evidence before 29 January.

5. After hearing argument I indicated to the parties that I would grant to all defendants an extension of time to file their evidence until 29 January 2010.  It was the plaintiffs' submission that if any defendant could not file their evidence by 30 October 2009 they should be required to apply to the court for leave to file evidence out of time, explaining in each case the delay.  In my view, that process is too cumbersome.  While there has been considerable delay on the part of the defendants, they should be given the chance to put on their evidence and the time frame should accommodate their requirements. 

6. However, the defendants must lodge their witness statements by 29 January 2010.  If they do not do so then they will not be permitted to lodge witness statements after that date without leave of the court.  Furthermore, there would have to be very good reason indeed why leave should be granted.  It would be a mistake for any defendant to assume leave will be given.

7. It now seems appropriate that a date should be set for trial of the action.  With that in mind, I indicated to the parties that the trial would be listed for eight weeks from 3 May 2010.  That is over six months from the date of the directions hearing.  It is not an aspirational date.  It is the date fixed for the hearing of the action.  Unless all parties agree to an alternative date it is most unlikely that the hearing date would be vacated.  Any application to vary the start date should be made promptly and supported by detailed affidavit material.  Save in exceptional circumstances, unavailability of counsel will not provide a ground for vacation of the hearing date.  Again, it would be a mistake for any party to assume the action will not proceed commencing 3 May 2010. 

8. This matter has not yet been to mediation.  The parties have discussed the prospect of an independent mediator but have not been able to agree upon a process.  I propose to make mediation orders which will take effect unless the parties agree amongst themselves to some alternative process.  If at all possible the mediation will be held before a judge of this court.  If that is not possible then the mediation will still be held and will still commence on 15 February 2010.

9. At the conclusion of the hearing I directed the parties to attempt to agree documents and to agree a timetable for a certificate of readiness and entry for trial and papers for the judge.  If these or any other matters cannot be agreed then the matter is to be relisted for further directions.

10. On this basis then I will make the following orders:

    1.The time prescribed by order 4 of the order of Templeman J dated 14 May 2009 within which the defendants are to file and serve witness statements and expert reports be extended to 29 January 2010.

    2.No party is without leave of the court to file any witness statement or expert report after 29 January 2010. 

    3.Unless the parties by 13 November 2009 agree in all respects to conduct a private mediation the parties are to submit the dispute to mediation conducted either by a judge of this court or by a mediation registrar on a confidential basis in accordance with Part VI of the Supreme Court Act 1935 (WA).

    4.By 27 November 2009 the plaintiffs are to serve on the other parties a statement of issues for the purposes of a mediation conference.  In the event these issues are not agreed by 10 December 2009 the solicitors for the other parties are to serve on the plaintiffs' solicitors a statement of issues for the purposes of a mediation conference. 

    5.By 23 December 2009 the solicitors for the parties shall confer in an endeavour to agree the issues and if the issues are not then agreed the solicitors for the plaintiffs lodge with the court a report signed by or on behalf of each party confirming:

    (a)that the conference has occurred as directed; and

    (b)recording the effect of the conference on the issues.

    6.The mediation shall commence on 15 February 2010 and will be listed for four days. 

    7.Without limiting the power of the court to make any order for costs of the action or the mediation the plaintiffs pay the prescribed fee as payable on or before 15 January 2010.

    8.Compliance with O 29A r 11(4) of the Supreme Court Rules 1971 (WA) be waived.

    9.Each party shall attend the mediation by a representative of that party familiar with the substance of the litigation and with authority to compromise it and the solicitor or their counsel representing each party and the experts engaged by that party.

    10.By 1 March 2010 the solicitors for the plaintiffs lodge with the court a report that the conference has occurred as directed and setting out the results of the conference.

    11.By consent the mediation be conducted on a confidential basis.  The parties shall not tender in evidence in any proceedings or disclose to any person who did not attend the mediation anything said or done, any communication (whether oral or in writing) or any document made or created in the course of or for the purpose of mediation except:

    (a)in regard to the question as to whether or not the parties to the dispute entered into a binding agreement settling all or any of their differences;

    (b)in regard to any question of costs; or

    (c)with the express written authority of the mediator or with the express written consent of all parties to the mediation.

    12.By consent the parties to the mediation take no steps to compel the mediator to give evidence in any proceedings or to produce any documents relating to any issue mediated.

    13.The mediator shall not, unless the parties agree, report to the court except on the failure of a party to cooperate in the mediation process.

    14.The mediator's report will be disclosed only to the court and only in regard to any question of costs.

    15.The matter will be listed for hearing commencing on 3 May 2010 for eight weeks.

    16.The costs of this hearing be paid by the defendants to the plaintiffs in any event.