Bougainville Copper Ltd v RTG Mining Inc - [2021] VSC 231

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE

Not Restricted

COMMERCIAL COURT

S CI 2018 00309

BOUGAINVILLE COPPER LIMITED (ARBN 007 497 869)	Applicant
v
RTG MINING INC (ARBN 164 362 850)	First Respondent
and
CENTRAL EXPLORATION PTY LTD (ARBN 609 946 125)	Second Respondent

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JUDGE:	Mukhtar AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	17, 18, 21 May 2018
DATE OF JUDGMENT:	5 May 2021
CASE MAY BE CITED AS:	Bougainville Copper Ltd v RTG Mining Inc & Anor
MEDIUM NEUTRAL CITATION:	[2021] VSC 231

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DISCOVERY - Pre-action discovery of documents from prospective defendant - Pre‑existing lucrative mine in Bougainville, Papua New Guinea, operated by applicant - Cessation of mining due to civil war - Later re-conferral of exploration licence to applicant over same land area of mine - Mining land and underlying minerals owned by customary landowners - Impending expiry of applicant’s exploration licence - Respondents’ co-existing rival interests to seek exploration licence to redevelop the mine in joint venture with customary landowners - Applicant’s legislative right to first seek extension of exploration licence - Consultative legislative process to enable ultimate extension decision to be made by responsible Minister - Applicant’s insinuation of bribes and illicit payments by respondents to influence customary landowners and others to oppose applicant’s interests - Public hearing and assessment by Mining Warden of objections from customary landowners - Minister’s ultimate decision to refuse an extension - Whether applicant has ‘reasonable cause to believe’ that it has or may have right to obtain relief against respondents for unlawful interference with its prospects for a licence extension - Absence of objective evidence to establish ‘reasonable cause to believe’ - Objective historical and contemporary facts not supportive of asserted grounds of belief - Application refused - Supreme Court (General Civil Procedure) Rules 2015 (Vic), rule 32.05.

DISCOVERY - Pre-action discovery of documents from prospective defendant - Not available as a broad investigative tool - Necessity to show ‘reasonable cause to believe’ on objective and probative evidence consonant with calibre of prospective claim for relief - Distinguishability between belief rather than suspicion or mere hunch or speculation.

DISCOVERY - Pre-action discovery of documents from prospective defendant - Interlocutory application - Evidentiary burden on applicant to show ‘reasonable cause to believe’ - Discretionary power to allow cross-examination of respondent’s deponent - Not usual or useful to allow cross-examination as a rehearsal for prospective trial - National Hearing Centres Pty Ltd v Vic O Tech Pty Ltd [2013] VSC 292 explained.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C M Scerri QC with Ms K Anderson	Patrick & Associates Pty Ltd
For the Respondents	Mr D J Batt QC with Mr T B Maxwell	SBA Legal Pty Ltd

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

The applicant and its economic interests in Bougainville......................................................... 6

The respondents and others........................................................................................................... 15

What is this application about?..................................................................................................... 19

The basis of the application........................................................................................................... 21

The broad basis of the application............................................................................................ 25
The material in support of the application.............................................................................. 26
The documents sought...............................................................................................................…

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: [2021] VSC 231
Decision Date: 5 May 2021

CaseChat Overview and Summary

In Bougainville Copper Ltd v RTG Mining Inc, the applicant sought pre-action discovery of documents from the respondent to substantiate its claim of unlawful interference by the respondents with the applicant’s prospects for an extension of its exploration licence. The applicant, Bougainville Copper Ltd, operated a lucrative copper mine in Bougainville, Papua New Guinea, before its operations ceased due to a civil war. Following the cessation of hostilities, the applicant sought to re-confer its exploration licence over the same land area, only to find that the respondents had competing interests to redevelop the mine in a joint venture with the customary landowners.

The legal issues before the court centred on whether the applicant had a 'reasonable cause to believe' that it had or may have a right to obtain relief against the respondents for their alleged unlawful interference. The court was required to determine whether the applicant had demonstrated sufficient objective and probative evidence to substantiate its claim of bribery and illicit payments by the respondents to influence the customary landowners and others against the applicant’s interests. The court also considered the burden of proof on the applicant to justify the issuance of a discovery order and whether cross-examination of the respondents' deponent would be necessary and beneficial.

The court found that the applicant had failed to provide objective evidence to establish a 'reasonable cause to believe' in the alleged unlawful interference by the respondents. The court emphasised the necessity for the applicant to substantiate its claim with objective historical and contemporary facts, distinguishing between belief rather than suspicion or mere hunch or speculation. The court concluded that the application for pre-action discovery was not supported by the requisite evidence and was therefore refused. The court further noted that cross-examination of the respondents' deponent was not typically useful as a rehearsal for a prospective trial, consistent with the principles outlined in National Hearing Centres Pty Ltd v Vic O Tech Pty Ltd.

In light of the findings, the application for pre-action discovery was dismissed, and the court declined to order cross-examination of the respondents' deponent. The court emphasised the importance of the applicant providing objective and probative evidence to substantiate its claim before seeking pre-action discovery.

Orders