Bougainville Copper v RTG Mining (Costs) - [2021] VSC 348

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

S CI 2018 00309

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

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JUDGE:	Mukhtar AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	17, 18 and 21 May 2018
DATE OF JUDGMENT:	18 June 2021
CASE MAY BE CITED AS:	Bougainville Copper v RTG Mining (Costs)
MEDIUM NEUTRAL CITATION:	[2021] VSC 348

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COSTS — Application for pre-action discovery of documents — Application wholly unsuccessful — Applicant’s ostensible belief in a right to obtain relief against respondents not shown to be reasonable on the objective evidence — Outcome depended on extensive judicial evaluation of intricate facts set in an activated socio-political context in the Autonomous Region of Bougainville in Papua New Guinea — Respondents’ application for costs on the indemnity basis refused.

COSTS — Distinction between taxation of costs on the indemnity basis and taxation on the standard basis — Not a complete indemnity — Application of Supreme Court Scale of Costs to both measures — Supreme Court (General Civil Procedure) Rules 2015, rr 63.28, 63.30, 63.30.1, 63.31 and 63.34.

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APPEARANCES:

Not required. Determined on written submissions.

HIS HONOUR:

On 5 May 2021, I published a judgment in this proceeding that refused an application by Bougainville Copper Limited (‘BCL’) for pre-action discovery of documents under rule 32.05.[1] That outcome was not based on discretionary considerations. It was attributable at a primary level to an inability of BCL to adduce the objective evidence to satisfy the dominant requirement under part (a) of the rule which requires an applicant to show that ‘there is reasonable cause to believe that the applicant has or may have the right to obtain relief’ in this Court against the respondents. Put in another way, BCL’s ostensible belief that it may have a right to obtain relief against the respondents was, so I found, shown on the corpus of objective evidence put before the Court to be a belief that could not be reasonably held.
[1]See [2021] VSC 231.

Before that outcome was obtained, the application required more than a passing visit on the proper purpose and operation of rule 32.05, and then an assimilation and critical evaluation of intricate facts and events put before the Court by both parties and obtained from other public sources. The evaluation had to be made in the context of: the historical facts concerning the operation of the Panguna mine; the blight of the civil war on Bougainville; the re-making of the mining laws of Bougainville; and the political machinations concerning the redevelopment of the mine which involved the senior members of Bougainville government and the leadership of customary landowner groups or associations, all happening amidst the simmering post-civil‑war tensions and enmities. The judicial evaluation was quite a peculiar and testing exercise, as much as it was interesting.

In the closing paragraph of the judgment, with a…

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 348
Decision Date: 18 June 2021

CaseChat Overview and Summary

Bougainville Copper Pty Ltd (BCL) was involved in a dispute with RTG Mining Pty Ltd (RTG) over the ownership and control of certain copper assets in the Autonomous Region of Bougainville in Papua New Guinea. The matter was before the Supreme Court of Queensland where BCL applied for pre-action discovery of documents from RTG. The application was denied in its entirety. BCL sought an order for RTG to pay the costs of the application on the indemnity basis.

The primary legal issue for the court to determine was whether BCL's belief in its right to obtain the relief sought was objectively reasonable. Additionally, the court needed to evaluate whether the costs application should be taxed on the indemnity basis or the standard basis. The court held that BCL's belief was not reasonable as it did not align with the evidence and circumstances. The case hinged on a detailed judicial assessment of complex facts within a politically charged environment. Consequently, the court refused RTG's application for indemnity costs.

In reaching its decision, the court examined the Supreme Court (General Civil Procedure) Rules 2015 and relevant case law. The court concluded that while the distinction between indemnity and standard taxation of costs was significant, both were subject to the Supreme Court Scale of Costs. The court found that the application for indemnity costs was not warranted given the circumstances and thus, ordered that the costs of the application be taxed on the standard basis.

Ultimately, the court made an order that RTG's application for indemnity costs was to be refused, and the costs of the application were to be taxed on the standard basis in accordance with the Supreme Court Scale of Costs.

Orders