Billabong Gold Pty Ltd v Vango Mining Ltd - [2022] WASCA 35

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   BILLABONG GOLD PTY LTD -v- VANGO MINING LIMITED [2022] WASCA 35
CORAM:   QUINLAN CJ
MITCHELL JA
VAUGHAN JA

HEARD:   11 MARCH 2022
DELIVERED          :   11 MARCH 2022
PUBLISHED           :   22 MARCH 2022
FILE NO/S:   CACV 23 of 2022
BETWEEN:   BILLABONG GOLD PTY LTD
Appellant
AND
VANGO MINING LIMITED
First Respondent
DAMPIER (PLUTONIC) PTY LTD
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   KENNETH MARTIN J
Citation: BILLABONG GOLD PTY LTD -v- VANGO MINING LTD [No 2] [2021] WASC 459
File Number            :   CIV 2932 of 2018

Catchwords:

Appeal and new trial - Application for a stay, suspension order or extension of time pending determination of appeal - Whether court has power to make an order to preserve the integrity of the appeal which interferes with private contractual rights

Appeal and new trial - Practice and procedure - Where court hearing an application in an appeal for an interim order is constituted by two judges of appeal - Where court is concerned as to whether a unanimous decision on the application for interim orders can be reached - Whether court has power to reconstitute to an enlarged coram and receive further submissions after judgment on the application has been reserved

Legislation:

Civil Judgments Enforcement Act 2004 (WA), s 15
Rules of the Supreme Court 1971 (WA), O 3 r 5(1)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant	:	S K Dharmananda SC
First Respondent	:	D R Chandler
Second Respondent	:	D R Chandler

Solicitors:

Appellant	:	Grondal Bruining
First Respondent	:	Lawton Macmaster Legal
Second Respondent	:	Lawton Macmaster Legal

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

Biala Pty Ltd v Mallina Holdings Ltd (1989) 2 WAR 381
Caratti v Hillman [1974] WAR 92
Complete Hire and Sales Pty Ltd v Terra Firma Constructions Pty Ltd [2018] WASCA 88
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268
Jebb v Superior Lawns Australia Pty Ltd [2018] WASCA 123
Kipoi Holdings Mauritius Ltd v Kirman [2021] WASCA 194
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1
Tait v The Queen [1962] HCA 57; (1962) 108 CLR 620

QUINLAN CJ & MITCHELL JA:

At the conclusion of the hearing on 11 March 2022, we refused the appellant's application in an appeal filed on 4 March 2022, which sought a stay, a suspension order or an extension of time (Application). We said that we would publish our reasons for making that order later. These are our reasons for refusing the Application.

Background

On 23 September 2014, the first respondent (Vango) and the second respondent (DPPL) entered into a contract, referred to as an Ore Treatment Agreement (OTA), with Northern Star…

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: [2022] WASCA 35
Decision Date

CaseChat Overview and Summary

Billabong Gold Pty Ltd (Billabong) initiated proceedings against Vango Mining Ltd (Vango), seeking a declaration that Vango was required to offer Billabong a right of first refusal (ROFR) to acquire shares in Vango, as per the terms of the Original Transaction Agreement (OTA). The dispute hinged on the interpretation and enforcement of the ROFR clause within the OTA, and whether Vango had fulfilled its obligations under this agreement. The case was heard in the Supreme Court of Western Australia. The central legal issues revolved around the interpretation of the ROFR clause in the OTA and whether the court had the authority to extend the time within which Billabong could accept the ROFR offer made by Vango. The court examined the scope of its powers under the Supreme Court Rules, particularly O 3 r 5(1), which allows for the extension of time for certain acts in proceedings, and the implied power of the court to make orders necessary to preserve the integrity of its jurisdiction.

The court held that while it had an implicit power to make orders necessary to ensure the effective exercise of its jurisdiction, such powers were not without limits. The court noted that extending the time for accepting a ROFR offer beyond the timeframe stipulated in the OTA would effectively amount to varying the contractual terms, which the court was not empowered to do without the parties' agreement. The court further clarified that even if accepting the ROFR offer could be considered an act in the proceedings for the purposes of O 3 r 5(1), the statutory power to extend time was still constrained by the original scope of the court's authority to grant relief. In this case, the court's power to grant declaratory relief did not extend to amending the contract or varying the terms of the OTA.

The Supreme Court of Western Australia ruled that it did not have the authority to extend the time within which Billabong could accept the ROFR offer, as doing so would go beyond the scope of the court's original power to grant declaratory relief. The court maintained that it could not alter the contractual terms without the parties' consent, and thus, the time for accepting the ROFR offer remained as stipulated in the OTA. The court's decision was based on the need to preserve the integrity of the contractual terms and the limitations inherent in the court's statutory and implied powers. The court declined to make any orders extending the time for acceptance of the ROFR offer.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

It is also well established that this court has an implicit power to make orders, at least against the parties to the proceeding against whom final relief might be granted, as are needed to ensure the effective exercise of its jurisdiction.[18] So it has been held that, where proceedings are pending in this court between the parties to an appeal, the Court of Appeal division of the court may exercise the court's power to make such procedural directions in those proceedings as are necessary for the purpose of preserving the integrity of the exercise of the court's appellate jurisdiction.[19] This court has exercised statutory powers to extend time in order to preserve the subject matter of the appeal where doing so was within the scope of the statutory power.[20] The court has also exercised a statutory power to vary a deed of company arrangement in order to preserve the effective exercise of its appellate jurisdiction.[21][18] Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1 [35].[19] Jebb v Superior Lawns Australia Pty Ltd [2018] WASCA 123 [63].[20] See Complete Hire and Sales Pty Ltd v Terra Firma Constructions Pty Ltd [2018] WASCA 88 [9]. [21] Kipoi Holdings Mauritius Ltd v Kirman [2021] WASCA 194 [50] - [51]. However, neither the court's implied power nor the power conferred by O 3 r 5(1) are without limits. The exercise of a statutory power for the purpose of preserving the effective exercise of the court's jurisdiction - here the power conferred by O 3 r 5(1) - must be within the scope of the proper exercise of the statutory power. Further, the power in O 3 r 5(1) to extend the period within which a person is required or authorised by any judgment or order to do any act in any proceedings must be exercised within the confines of the court's power to make the original order. In the present case it may be open to debate whether Billabong electing to accept one of the 2017 ROFR Offers is an act in the proceedings for the purposes of O 3 r 5(1) of the Rules of the Supreme Court. However, even assuming that to be the case, in the circumstances of the present case O 3 r 5(1) would not authorise this court to extend the time within which a ROFR Offer can be accepted to a point in time more than 30 days after Billabong receives the offer. The relevant limit on power in the present case arises from the limits on the court's power to grant the relief provided in orders 1 - 3 of the Primary Orders. In the present case, the primary judge concluded that cl 12.6 obliged Vango and DPPL to make the 2017 ROFR Offers. It was common ground that the obligation, if it existed, had not been performed. Order 1 was a declaration of Vango's and DPPL's existing unperformed obligation to make the 2017 ROFR Offers. The court's power to grant declaratory relief was relevantly to declare the existing rights and obligations of the parties under the OTA. It was not a power for the court to amend the contract or vary the contractual terms without the parties' agreement.