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 Resources Ltd (Northern Star). At that time, Vango and DPPL were joint venture partners in the Plutonic Dome Joint Venture (Joint Venture) and held interests in a number of mining tenements in that capacity.
The OTA provided that Northern Star could be called upon to crush and treat the gold ore produced by the Joint Venture from a deposit known as the K2 Deposit. Clause 12.6 of the OTA provided for Northern Star to have a right of first refusal (ROFR) in respect of the Joint Venture mining tenements. Clause 12.6 was relevantly in the following terms:
12.6Right of First Refusal in relation to Disposal of Tenements
(a)Northern Star has the right of first refusal on the terms and conditions set out in this clause in respect of a Disposal of all or part of the Tenements by [Vango or DPPL].
(b)Where [Vango or DPPL] receive a bona fide offer to purchase, or intend to make an offer to sell, for a consideration involving payment of [cash or other specified consideration], the whole or part of its interest in the Tenements which it is willing to accept and Dispose of, [Vango or DPPL] (Offeror) must promptly send written notice to Northern Star of the offer to purchase or sell making the same offer to Northern Star (ROFR Offer) and giving a copy of the same to the other Plutonic Dome Party.
(c)The ROFR offer must:
(i)set out all the details of the offer to purchase or sell that the Offeror has received or wishes to make, including [specified matters]; and
(ii)attach a copy of all the ROFR Offer and any valuation referred to in clause 12.6(b).
(d)Northern Star has the right for a period of 30 days following receipt of the ROFR Offer (Option Period) to accept the ROFR Offer in full.
(e)To accept the ROFR Offer Northern Star must give written notice of acceptance to the Offeror during the Option Period. Where written notice of acceptance is given by Northern Star during the Option Period the Offeror must sell the Tenements, the subject of the ROFR Offer, to Northern Star on the terms of the ROFR offer.
(f)If Northern Star does not accept the ROFR offer within the Option Period then, following the Option Period, the Offeror is free within 6 months from the date of the ROFR Offer, and subject to subsequent completion and delivery of the required assignment documentation specified in this clause 12 and all necessary regulatory approvals, to Dispose of the tenements the subject of the ROFR Offer (and subject to the pre-emptive rights of the other Plutonic Dome Party) to the prospective acquirer at a price and subject to the terms and conditions which are no less favourable to Northern Star than the price, terms and conditions set out in the ROFR offer.
The OTA defined 'Dispose' in the following terms:
Dispose means to sell, assign, transfer, part with the benefit of, declare itself a trustee in respect thereof, grant an Encumbrance, grant an option in respect thereof or otherwise deal with.
In 2016, Vango and DPPL entered into negations, and ultimately a signed agreement, for the transfer of DPPL's minority holding interest in the Joint Venture mining tenements to Vango (2016 transactions). However, the transfer of the tenements was never completed. This was in part because Northern Star's waiver of its rights under cl 12.6 of the OTA (a condition precedent to the transfer) was never received.
Ultimately, Vango instead acquired the shares in DPPL from DPPL's parent company, Dampier Gold Ltd (Dampier Gold).[1] It was common ground that this share transfer did not attract the ROFR offer obligations under cl 12.6 of the OTA.[2]
[1] Billabong Gold Pty Ltd v Vango Mining Ltd [No 2] [2021] WASC 459 (Primary Reasons) [131].
[2] Primary Reasons [133].
On 12 August 2016, Northern Star agreed to sell assets, including its rights under the OTA, to the appellant (Billabong).
In 2017, Vango entered into non-binding heads of agreement and a binding term sheet with Dampier Gold (2017 transactions).[3] These documents provided, each in somewhat different terms, for Dampier Gold to obtain a 'farm-in' interest in certain Joint Venture mining tenements.[4] This was in consideration for Dampier Gold contributing to the capital expenditure for the development of the K2 mining project.[5]
[3] Primary Reasons [221].
[4] Primary Reasons [228], [239].
[5] Primary Reasons [228].
In 2018, Billabong commenced the primary proceedings, in which it alleged that the transactions negotiated in 2016 and 2017 triggered the obligation in cl 12.6(b) of the OTA to make ROFR Offers.[6] It was common ground that no ROFR Offers had been made under that clause.[7] Billabong sought injunctive relief requiring Vango and DPPL to make ROFR Offers under cl 12.6(b) of the OTA.
[6] Primary Reasons [11].
[7] Primary Reasons [88].
On 14 December 2021, the primary judge published written reasons indicating that Billabong had established its claim in relation to the 2017 transactions, but not the 2016 transactions. The primary judge found that all of the pleaded 2016 and 2017 transactions would have triggered the obligation to make a ROFR Offer under cl 12.6 of the OTA.[8] In essence, the claim in relation to the 2016 transactions failed for two reasons:
1.Northern Star's rights under cl 12.6 in respect of the 2016 transactions were bare rights of action, which at law could not be assigned to Billabong because it did not have a genuine commercial interest in the taking of the assignment.[9]
2.Northern Star's delay in asserting its rights in relation to the 2016 transactions would lead to the refusal of injunctive relief on discretionary grounds, limiting the appropriate relief for any 2016 breach to common law damages for breach of contract. Billabong could be in no better position than Northern Star.[10]
[8] Primary Reasons [203].
[9] Primary Reasons [176] - [185].
[10] Primary Reasons [212] - [217], [249].
The primary judge did not make orders in December 2021. Rather, the parties were afforded time to prepare agreed or rival minutes of orders precisely articulating the terms of the injunctive relief.[11]
[11] Primary Reasons [258] - [260].
The terms of the appropriate orders were debated before the primary judge on 25 January 2022. Issues debated concerned whether formal orders in the nature of a compulsive injunction should be made, the terms of the offers which should be annexed to the orders and the costs of the primary proceedings. The primary judge gave ex tempore reasons resolving these issues, generally in Billabong's favour, which were subsequently converted into written reasons.[12] His Honour indicated that he would pronounce orders and declarations in terms of a minute proposed by Billabong 'subject to the resolution of issues in terms of the corrections to the annexures'.[13]
[12] Billabong Gold Pty Ltd v Vango Mining Ltd [No 2] [2021] WASC 459 (S) (Supplementary Reasons).
[13] Trial ts, 25 January 2022, 259.
Formal orders were ultimately made on 11 February 2022 in the following terms (Primary Orders):
1.It is declared that, pursuant to cl 12.6 of the [OTA], the benefit of which agreement was assigned to [Billabong] on or about 11 October 2016, [Vango and DPPL] are obliged to make the offers, to the plaintiffs as set out in order 2 of these orders by 4.00pm (WST) on 14 February 2022.
2.[Vango and DPPL] are hereby ordered to:
(a) make and deliver an offer in writing to [Billabong] that is open for acceptance in the terms as set out in Annexure 1 to these orders and to [a specified] address; and
(b) make and deliver a further offer in writing to [Billabong] that is open for acceptance in the terms set out at Annexure 2 to these orders and to the same address as is referred to in order 2(a).
3.Within 30 days of its receipt of each of the offers as referred to in par 2 of these orders, [Billabong] may elect to accept one, but not both, of the offers, and may do so by giving written notice of that acceptance (specifying expressly which of the two offers is being accepted) to [Vango and DPPL] and to the [specified solicitor's address].
The orders also required Vango and DPPL to pay 80% of Billabong's costs of the primary proceedings, with scale limits removed, and gave liberty to apply.

The appeal to this court and the Application

By appeal notice filed on 2 March 2022, Billabong appealed against the Primary Orders.
On 4 March 2022, Billabong lodged the Application, seeking orders in effect that:
1.Until 21 days following the determination of this appeal, order 3 of the Primary Orders is stayed, alternatively its enforcement is suspended pursuant to s 15 of the Civil Judgments Enforcement Act 2004 (WA).
2.The time within which Billabong may, under order 3 of the Primary Orders, elect to accept either of the offers made to it by Vango and DPPL pursuant to orders 1 and 2 of the Primary Orders (2017 ROFR Offers), be extended to a date which is 21 days following the determination of this appeal.
In his affidavit supporting the Application, Billabong's solicitor, Dean Grondal, deposes that Billabong's solicitors received the 2017 ROFR Offers on 11 February 2022. Mr Grondal says that he believes that, under the Primary Orders, Billabong must accept either of the 2017 ROFR Offers before 13 March 2022. He says that, since 13 March 2022 is a Sunday and acceptance of an offer must be delivered to a CBD office address, notice of an acceptance will need to be delivered by 11 March 2022.[14]
[14] Affidavit of Dean Grandal sworn 4 March 2022, par 33 - 34.
Mr Grondal deposes that Billabong intends to appeal on grounds that challenge the primary judge's conclusions at [10.1] and [10.2] above.
Mr Grondal also deposes as to commercial considerations which may affect Billabong's decision as to whether to accept one of the 2017 ROFR Offers depending on whether ROFR Offers in relation to the 2016 transactions (2016 ROFR Offers) will be forthcoming.
Two unusual matters may be noted about the Application.

Delay in making the Application

First, there was an imperative for the Application to be heard and determined by 11 March 2022. Absent the orders sought in the Application, Billabong apprehended that it had to make its decision as to whether to accept either of the 2017 ROFR Offers by that date. The Application therefore needed to be dealt with urgently, in circumstances where Vango and DPPL indicated at the hearing that they were not prepared to agree to an extension of time to enable the Application to be resolved in a more orderly fashion.
However, the urgency was created by Billabong's own approach to the litigation. Billabong was on notice of the adverse decision it seeks to challenge in the appeal since the publication of the Primary Reasons on 14 December 2021. It was on notice as to the form of the Primary Orders since 25 January 2022. It made no attempt to have the Primary Orders cast in terms which would preserve its rights pending an appeal. It did not put itself in a position to be ready to institute the appeal and make the Application immediately after formal orders were made. It lodged the Application on a Friday before a long weekend, and emailed a letter to the court advising of the need for an urgent listing at 4.57 pm on that Friday.
Billabong's approach unnecessarily put the parties and the court in a difficult position. The court was able to list the Application for hearing on 11 March 2022. However, given the very truncated timetable which the late notice required, the assistance which counsel was able to provide by way of written and oral submissions was limited. The court was placed in a position of determining the Application with little opportunity for consideration. Billabong has not provided any satisfactory explanation for the delay in making the Application. Billabong's dilatory approach was unacceptable and should not have occurred. It is a factor counting against the grant of the relief sought in the Application on discretionary grounds.

Enlargement of the coram before determination of the Application

Secondly, the court hearing the Application initially comprised Mitchell and Vaughan JJA. After hearing submissions, the court reserved its decision. When it appeared that a unanimous decision may not be attainable, and that s 62 of the Supreme Court Act 1935 (WA) did not adequately provide for the resolution of a division, the court reconvened with an enlarged coram and heard further submissions from the parties.
At the resumed hearing, counsel for the respondents challenged the capacity of the court to adopt this course. However, for reasons given orally at that time, we were satisfied that the court had the power to reconstitute and hear further submissions before any decision had been made on the Application. The following reasons have been edited from the transcript of the court's ex tempore decision.
There is no provision of the Supreme Court Act that has been identified that specifically refers to the reconstitution of the court following the reserving of its decision in a matter. Nevertheless, we were satisfied that it is part of, and always has been part of, the inherent jurisdiction of a superior court in a matter where the court is not functus officio to reconstitute the coram of the court for rehearing or further hearing of the matter in the absence of some statutory provision that prevents that occurring.
The respondents point to s 62 of the Supreme Court Act, which provides:
(1) If the judges of appeal constituting the Court of Appeal are divided on the decision to be given on a question, the question shall be decided according to the decision of the majority, if there is a majority.
(2) If the Court of Appeal is constituted by more than 3 judges of appeal and they are equally divided on the decision to be given on a question, the question shall be decided according to the decision of the presiding judge of appeal.
(3) If the Court of Appeal is constituted by 2 judges of appeal and they are divided on the decision to be given on a question —
(a) any party to the appeal may, within one month after the date the judgments are delivered, serve the Court of Appeal Registrar and each other party with a written notice requiring the appeal to be reheard by the Court of Appeal constituted by 3 or more judges of appeal;
(b) if the appeal is against a judgment or order of a court other than the Supreme Court, either or both of the 2 judges of appeal may, of their own motion, order the appeal to be reheard by the Court of Appeal constituted by 3 or more judges of appeal.
(4) If a party gives notice under subsection (3)(a) or an order is made under subsection (3)(b) the appeal shall be reheard by the Court of Appeal constituted by 3 or more judges of appeal.
(5) If no party gives notice under subsection (3)(a) or if no order is made under subsection (3)(b), the appeal shall not be reheard and the judgment or order against which the appeal was taken shall remain unaltered.
Section 62 deals with the effect of divided decisions and the situation in which there are decisions constituted by courts of more than three judges, three judges or two judges. In the present case two judges initially sat but had not delivered a decision, nor was the appeal being heard. The provisions of s 62(3)(a), s 62(4) and s 62(5) provide a mechanism for the dealing of outcomes in 'appeals'. That is, s 62(3)(a) refers to the 'appeal' being reheard. Section 62(4) refers to the 'appeal' being reheard. Section 62(5) provides that the 'appeal shall not be reheard' if no application is made and, if that occurs, the judgment below stands. None of those provisions provide a mechanism for dealing with divisions of opinion in applications in an appeal.
The significance of the above is that, in the event that there is not a decision on an appeal within the meaning of s 62, the course which follows is that the decision appealed from is taken to have remained as unaltered. Of course, in an application in the appeal, it is not the case that the particular orders are sought to be disturbed on the appeal as an application in an appeal is necessarily interlocutory.
We were therefore satisfied that s 62 of the Supreme Court Act did not apply to resolve a division of opinion of two judges on the Application, and in any event did not prevent the court from reconstituting with an enlarged coram to hear further submissions before a decision had been made on the Application.
For the above reasons, we were satisfied that the court was not functus officio and was properly able to reconstitute as a court of three judges and hear further submissions on the Application, which had not been disposed of.
After adjourning to consider the matter further, the court by majority then made an order refusing Billabong's Application.

Purpose of the Application

An applicant for interim relief such as a stay or suspension order generally needs to demonstrate that there are special circumstances justifying departure from the ordinary rule that a successful litigant at first instance is entitled to enforce the judgment pending the determination of any appeal. There are three essential considerations that arise in the context of the general principles relevant to the grant of a stay of a primary court's orders: (1) whether the refusal of a stay could render the appeal nugatory; (2) whether the appeal has reasonable prospects of succeeding; and (3) whether the balance of convenience favours the grant or refusal of a stay.[15]
[15] Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9].
As explained in oral and written submissions, the purpose of the Application is to avoid the position where Billabong must make a choice as to whether to accept one of the 2017 ROFR Offers prior to the determination of the appeal. Billabong seeks to establish that interim relief is necessary to preserve the subject matter or integrity of the appeal, or avoid practical difficulties in respect of the relief that may be granted on appeal, in two ways.
The first arises on Billabong's position that the OTA would allow it to accept one 2016 ROFR Offer and one 2017 ROFR Offer. If that is the position, acceptance of one of the 2017 ROFR Offers would not preclude this court from making orders requiring the respondents to make 2016 ROFR Offers, which Billabong could accept.
However, if that is the position, Billabong says its choice in relation to the 2017 ROFR Offers would be affected by commercial considerations that would be informed by knowing whether 2016 ROFR Offers will be forthcoming. If it knew that 2016 ROFR Offers would be made, it may not choose to accept either of the 2017 ROFR Offers or may choose to accept a different 2017 ROFR Offer.
We are not persuaded that the matters raised by Billabong if this first position prevails would result in the appeal being rendered nugatory if relief is not granted on the Application. Whether or not relief is granted at this stage, if the grounds of appeal are established, the court would be able to order Vango and DPPL to make 2016 ROFR Offers. Billabong would still be able to accept one of the 2016 ROFR Offers and one of the 2017 ROFR Offers. The only difference granting interim relief could make would be to allow Billabong to know whether it has 2016 ROFR Offers when it chooses whether to accept one of the 2017 ROFR Offers. We do not consider it to follow from these commercial considerations that relief is required to protect the effective exercise of this court's appellate jurisdiction.
The second reason Billabong seeks interim relief arises on the respondents' anticipated position that, under the terms of the OTA, Billabong could only ever accept one of the 2016 and 2017 ROFR Offers (considered together as a single group). If that is the position, then acceptance of one of the 2017 ROFR Offers would preclude Billabong from subsequently accepting a future 2016 ROFR Offer. If that is the position, even if both of Billabong's proposed grounds of appeal were established, the appeal may still be dismissed on the basis that the acceptance of one of the 2017 ROFR Offers rendered any 2016 ROFR Offer redundant.
This second reason advanced by Billabong is, in our view, properly characterised as a concern that the appeal may be rendered nugatory if interim relief is not granted. If Billabong can accept only one ROFR Offer then, if interim relief were not granted, it would be left with a choice of forgoing either:
1.acceptance of the 2017 ROFR Offers which it currently has; or
2.the prospect of success on appeal leading to the making of 2016 ROFR Offers which it could accept.
That conundrum would be a significant factor in the balance of convenience counting in favour of the grant of interim relief, in a context where the respondents do not contend the proposed grounds to be unarguable and have not adduced evidence of prejudice to them if interim relief is granted. The court was not in a position at the hearing of the Application to resolve the question of whether acceptance of a 2017 ROFR Offer would preclude the subsequent acceptance of a 2016 ROFR offer.
A difficulty arises, however, in identifying an interim order which this court has power to make which would have utility in preserving Billabong's position pending determination of the appeal.

Stay and suspension

In our view, the making of a stay or suspension order would not have any utility in the present case.
A suspension order under s 15 of the Civil Judgments Enforcement Act is an order suspending the enforcement of all or part of a judgment. In the present case, the issue of enforcement of orders 1 - 3 does not arise. Order 1 is a declaration as to an obligation which has been discharged since the order was made. Vango and DPPL have complied with order 2 by making and delivering ROFR Offers within the stipulated time. Order 3 is not a coercive order.
An order staying order 3 - that is suspending its operation - would be of uncertain effect. It seems doubtful that a stay would preclude Billabong from accepting a ROFR Offer in accordance with the OTA. In any event, a mere suspension of the operation of order 3 would not affect its terms, which provide for acceptance of one of the 2017 ROFR Offers within 30 days of receipt of the offers. If order 3 were stayed until the determination of the appeal, when the appeal was determined, and the suspension of the operation of order 3 came to an end, it would still provide for acceptance within 30 days of receipt. That time would have passed by the determination of the appeal, so that a stay would not place Billabong in any better position.
That is, as senior counsel for Billabong ultimately accepted,[16] in order to have utility, any interim order must have the effect of extending the time in which Billabong may accept one of the 2017 ROFR Offers.
[16] Appeal ts 16 - 17.

Application for an extension of time

Billabong seeks an extension of time under O 3 r 5(1) of the Rules of the Supreme Court 1971 (WA). That subrule relevantly provides for the court to extend the period within which a person is required or authorised by any judgment or order to do any act in any proceedings. The subrule applies for the purposes of the Supreme Court (Court of Appeal) Rules 2005 (WA): see r 5(4) of the latter rules.
It is established that O 3 r 5(1) is remedial and confers a broad power upon the court to relieve against an injustice which is not readily limited by judicial fiat.[17]
[17] FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268, 283.
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.
Order 2 was an injunction requiring Vango and DPPL to perform an undischarged contractual obligation imposed on them by cl 12.6(b) of the OTA.[22] That power to grant injunctive relief is a power to make an order for the enforcement of existing contractual rights and obligations. It is plainly not a power to vary the terms of the contract agreed between the parties.
[22] See N C Seddon and R A Bigwood, Cheshire & Fifoot Law of Contract (11^th Australian edition) 24.19; J W Carter Contract Law in Australia (6^th edition) 40-07.
The terms of order 3 appear to have been agreed between the parties, and are not discussed in the primary judge's reasons. Order 3 can be supported as a declaratory order as to how cl 12.6(d) - (e) of the OTA operate in the particular circumstances of the present case. Those circumstances involved two ROFR Offers being made in respect of the same transaction on different terms. It seems to be common ground between the parties that it is implicit in cl 12.6(d) that, in these circumstances, only one offer may be accepted in full. Order 3 has the effect of declaring that the right conferred by cl 12.6(d) and (e) in those circumstances is the right to accept one, but not both, of the 2017 ROFR Offers within 30 days of receipt by giving written notice of that acceptance.
The limitation that any acceptance of a ROFR Offer must be within 30 days of receipt arises from the OTA. Clause 12.6(d) provides that Northern Star (now Billabong) has a 'right for a period of 30 days following receipt of the ROFR Offer' to accept the offer in full. This 30‑day period is referred to as the 'Option Period'. Clause 12.6(e) relevantly provides that, to accept a ROFR Offer, Northern Star (now Billabong) must give written notice 'during the Option Period'.
In this way the OTA provides for the time during which a ROFR Offer may be accepted, being within 30 days after the offer is received. The context of the provision - in which the respondents have received an offer from, or intend to make an offer to, a third party - indicates that time is of the essence. If the ROFR Offer is not accepted then, following the Option Period, the respondents may Dispose of the tenements on terms and conditions which are not less favourable than those in the ROFR Offer. However, the time during which cl 12.6(f) allows the respondents to do so is 'within 6 months from the date of the ROFR Offer'. That is, the right conferred by cl 12.6(f) ends at a point in time determined by reference to when the ROFR Offer is made rather than when the Option Period expires.

In our view, in making the declaratory order 3 the primary judge had no power to amend or vary the contractual terms without the consent of all parties to provide for Billabong to have more than 30 days from receipt to accept a ROFR Offer. It follows that the power conferred by O 3 r 5(1) to extend time does not authorise an extension of time beyond the 30-day period stipulated in cl 12.6 of the OTA without the consent of all parties to that contract. The power conferred by O 3 r 5(1) is not a power to amend or vary contractual terms and conditions agreed to by the parties without all parties' consent to the amendment or variation.
Nor, in the limited time available, were counsel or the court able to find any precedent for an appellate court asserting a power to vary contractual terms and conditions, without the contracting parties' consent, in order to preserve the effective exercise of the court's jurisdiction. We are not satisfied that such a power exists.

Conclusion

For the above reasons, at the conclusion of the hearing we formed the view that a stay or suspension order would have no utility unless an order were made having the effect of extending the 30‑day period in which Billabong could accept one of the 2017 ROFR Offers. In our view, that time limitation arose from the terms of cl 12.6 of the OTA. This court has no power, either under O 3 r 5(1) of the Rules of the Supreme Court or its implied power, to make an order having the effect of varying that contractual term without all parties' consent. We therefore refused Billabong's Application.

VAUGHAN JA:

I took a different view as to Billabong's application in an appeal dated 4 March 2022. Like Quinlan CJ & Mitchell JA, and in substance for the reasons expressed in their Honour's joint reasons, I would have dismissed the application for a stay in the court's inherent jurisdiction or a suspension order pursuant to s 15 of the Civil Judgments Enforcement Act 2004 (WA). However, pursuant to O 3 r 5 of the Rules of the Supreme Court 1971 (WA) (RSC), I would have extended the time for the election under par 3 of the orders of the primary court pending the determination of the appeal.

As mine is a minority view, I will develop the reasons for my different conclusion as briefly as the circumstances allow.
The joint reasons explain the factual background, the litigation and outcome in the primary court, the appeal and the matters relied on by Billabong in support of the application. Ultimately, as was accepted by senior counsel for Billabong,[23] its application could only be based on O 3 r 5 RSC. In that respect counsel for the respondents conceded that O 3 r 5 RSC empowered this court to extend the time provided for in par 3 of the orders of the primary court from 30 days until after the determination of the appeal.[24] The respondents fought the application on its merits rather than taking any point as to the court's power to make the order sought by Billabong.[25] However, the respondents' concession cannot be determinative. The court must satisfy itself that any proposed order is within power.
[23] Appeal ts 15 - 17.
[24] Appeal ts 33 - 34.
[25] Appeal ts 34.
This court may make interlocutory orders as are necessary to preserve the integrity of or to ensure the effective exercise of its appellate jurisdiction (at least against parties against whom final relief might be granted).[26] So, for example, in particular circumstances the court may exercise the power under O 4A r 27(2) RSC to remove a case from the Inactive Cases List notwithstanding that ordinarily such an application is to be dealt with in the General Division of the Supreme Court. Such exercise of power will be ancillary or incidental to the exercise of the court's appellate jurisdiction when it is undertaken in order to ensure the effective exercise of that jurisdiction.[27] So too, in my opinion, this court may exercise the power under O 3 r 5 RSC where doing so is necessary to preserve the integrity of or to ensure the effective exercise of the court's appellate jurisdiction - it may, for example, be necessary to extend time to preserve the subject matter of an appeal and prevent the appeal from being rendered nugatory.[28]
[26] Tait v The Queen [1962] HCA 57; (1962) 108 CLR 620, 623 ‑ 624; Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1 [35]; Jebb v Superior Lawns Australia Pty Ltd [2018] WASCA 123 [63].
[27] Jebb v Superior Lawns Australia Pty Ltd [68].
[28] See by analogy Complete Hire and Sales Pty Ltd v Terra Firma Constructions Pty Ltd [2018] WASCA 88 [9].
Order 3 r 5 RSC provides a broad power to relieve against injustice.[29] But it is not a plenary power. Among other things O 3 r 5 RSC allows the court to extend the period within which a person is authorised by any judgment or order to do any act 'in any proceedings'. It might be questioned whether an extension to effect the election under par 3 of the primary court's orders is an act in any proceedings. However, the phrase 'in any proceedings' has been construed to extend to a relevant proceeding being a 'working out' of an order.[30] To determine whether this is the case requires consideration of the substance and effect of the relevant order - in the present case the primary court's orders made 11 February 2022.
[29] FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268, 283 ‑ 284 (the approach adopted in that passage being equally applicable to O 3 r 5 RSC: Biala Pty Ltd v Mallina Holdings Ltd (1989) 2 WAR 381, 387, 399).
[30] Biala Pty Ltd v Mallina Holdings Ltd (386) (referring to Caratti v Hillman [1974] WAR 92, 95).
The primary court's orders are reproduced at [13] in the joint reasons. To those orders should be added par 5 by which the parties were granted liberty to apply in respect of the orders. Two things may be said immediately. First, par 1 of the primary court's orders is unambiguously in the form of a declaration. The court declares that, pursuant to cl 12.6 of the OTA, the respondents are obliged to make certain offers to Billabong. Second, par 2 of the primary court's orders is by way of injunctive relief. Consequential upon the declaration in par 1, par 2 requires the respondents to make the 2017 offers.
The matter that is less obvious, and the point on which I depart from the majority view, is the character of par 3 of the primary court's orders.
I do not view par 3 of the primary court's orders as a declaratory order. First, unlike par 1, the order is not expressed in declaratory terms. Second, the substantive effect of par 3 is to limit Billabong's entitlement to accept the 2017 offers as the respondents were required to make under par 2(a) and 2(b). Billabong may accept one but not both of the 2017 offers. There is no foothold for that in cl 12.6. Rather, in this respect, par 3 operates as a practical limitation on the injunctive relief provided by par 2 - one necessary to do practical justice between the parties. Third, par 3 prescribed a method of acceptance without consideration of the method prescribed by the OTA.
To my mind, rather than being declaratory in nature, par 3 of the primary court's orders is in the nature of a condition. It circumscribes and thereby conditions the injunctive relief the primary court ordered by par 2 of its orders made 11 February 2022. The 2017 offers as required by par 2 can only be accepted in accordance with the stipulations provided for in par 3. This view is supported by the order for liberty to apply in par 5. The grant of liberty to apply constitutes recognition that further orders might be required in the implementation of (or working out of) the orders for injunctive relief provided for by par 2 as conditioned by par 3. Moreover, the characterisation of the order in par 2 may be tested by asking what the position would have been had the order never been made. The orders in pars 1 and 2 would have provided Billabong with relief. Once the 2017 offers were made in accordance with par 2 of the primary court's orders, cl 12.6 of the OTA would have operated in accordance with its terms. Billabong might have accepted the 2017 offers in accordance with its entitlements under cl 12.6. So understood par 3 is to be seen as the imposition of various requirements conditioning the injunctive relief provided by par 2.

Paragraph 3 of the primary court's orders, as so characterised, is, in my view, capable of being extended pursuant to O 3 r 5 RSC. An election to accept one of the 2017 offers is, relevantly, an act authorised by the primary court's orders irrespective of whether - by cl 12.6 of the OTA - Billabong had an independent source of authority for that act. The primary court's orders fixed a period within which Billabong was authorised to elect to accept one of the 2017 offers. That was an act in the proceedings in the sense that the relevant proceedings were a working out of the primary court's orders made 11 February 2022.
The existence of the power to extend time under O 3 r 5 RSC is unaffected by the contractual relationship between the parties. Order 3 r 5 RSC is not being employed to amend or vary the OTA without the parties' agreement. Rather, on my characterisation of the substance and effect of the primary court's orders, O 3 r 5 RSC is being employed to extend time under a framework created by the primary court as a condition for the grant of injunctive relief. That does not mean that the parties' contractual relationship and the terms of cl 12.6 of the OTA are irrelevant. To the contrary, it should be inferred that in providing for a 30-day period to elect to accept one of the 2017 offers the primary judge was adopting the 'Option Period' as provided for under cl 12.6. So far as, by the application, Billabong sought to apply O 3 r 5 RSC to extend the time for election, the exercise of the power is undoubtedly informed by the terms of cl 12.6 and the parties' agreement that there would be only a 30-day period to accept a right of first refusal offer.
Having explained why, for the above reasons, I was satisfied that this court had power to extend the time for election under par 3 of the orders of the primary court pending the determination of the appeal, I turn to explain why I would have exercised the discretion by granting an extension of time.
So far as O 3 r 5 RSC provides a broad power to relieve against injustice, the interests of justice in the present case were informed by the factors commonly considered in determining whether to grant a stay pending appeal. First, whether an extension was necessary to preserve the subject matter of the appeal (ie whether, without the extension of time, the appeal might be rendered nugatory). Second, whether the appeal had reasonable prospects of success. Third, whether the balance of convenience favoured the grant of the extension of time.
The joint reasons explain how there is a real risk that the appeal may be rendered nugatory without an extension of the kind sought by Billabong (see [38] - [40] above). On Billabong's case, if the appeal succeeded, it may elect to accept one of the 2016 offers in addition to accepting one of the 2017 offers. However, on the respondents' case, even if the appeal succeeded, Billabong could elect to accept only one of the 2016 and the 2017 offers. Thus, if the respondents are right, acceptance of one of the 2017 offers within the period provided for by par 3 of the primary court's orders would preclude Billabong succeeding in its appeal. Billabong was in an invidious position where exercise of its entitlement pursuant to the judgment obtained in the primary court might jeopardise its right to appeal.
It was impossible, given the way in which the application came on for hearing, to determine in the time available for decision who was correct in terms of the parties' competing cases. There was, however, at least a real risk that the respondents may be correct. That, in my view, sufficed in terms of the first broad inquiry. There was a real risk that the appeal might be rendered nugatory in the absence of an extension of the kind sought by Billabong.
Whether the appeal had reasonable prospects of success was not in issue at the hearing of the application. Counsel for the respondents accepted, for the purpose of the application, that the appeal was arguable.[31] On the basis of the draft grounds filed in support of the application[32] it appears that the appeal has reasonable prospects of success in the relevant sense.
[31] Appeal ts 36.
[32] Affidavit of D E Grondal sworn 4 March 2022 attachment 'DEG-6' pages 134 - 135.
The balance of convenience was finely poised. Relevantly:
1.In favour of the extension of time was the risk of injustice associated with the real risk that the appeal may be rendered nugatory without an extension of the kind sought by Billabong.
2.There were three factors against the extension of time:
(a)First, Billabong had unreasonably delayed in commencing the appeal and bringing the application (see the joint reasons at [21] - [23] above). Moreover, as senior counsel for Billabong accepted,[33] it was open to Billabong to have moved for different orders before the primary judge which would have accommodated its desire to appeal. In this respect Billabong was the author of its own misfortune.
(b)Second, on Billabong's own case its appeal will not be rendered nugatory if it accepts one of the 2017 offers.
(c)Third, the parties' contractual bargain was for a 30-day period to accept any right of first refusal offer.
[33] Appeal ts 3 - 4.
As to [77.2(c)] above, I considered that substantial weight ought to be given to the contractual period as struck in the OTA. However, while doing so, the possibility of an extension under O 3 r 5 RSC had to be evaluated on the basis that the respondents wrongfully, in breach of the OTA, failed to make the required right of first refusal offers. If the respondents had made the 2017 offers in a timely way neither Billabong nor the respondents would have been in the present position. Moreover, there was no suggestion that the respondents would be prejudiced by an extension of the kind sought by Billabong. Indeed, emphasising the lack of prejudice, the respondents were prepared to agree to a stay if Billabong accepted that if the appeal was successful it may elect to accept only one of the 2016 or 2017 offers.[34] The absence of any identified prejudice was an important consideration and a further factor in favour of the extension of time. While, under cl 12.6 of the OTA, the time period of 30 days was critical because ordinarily the respondents would be seeking to dispose of the tenements the subject of the right of first refusal offer to a prospective purchaser on equivalent terms, there was no suggestion that this was the case in the events that had transpired.
[34] Respondents' submissions dated 10 March 2022 par 7.
On balance, weighing the competing factors and evaluating where the greater risk of injustice might lie, I was persuaded that Billabong had made out its case for an extension of time. I would, however, have required that the extension of time be subject to Billabong now taking all necessary steps to pursue the appeal as quickly as possible.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JB
Associate to the Honourable Justice Mitchell
22 MARCH 2022