Bucyrus (Australia) Pty Ltd v Ani Mining Services Ltd - [1999] FCA 1193

FEDERAL COURT OF AUSTRALIA
Bucyrus (Australia) Pty Ltd v ANI Mining Services Ltd [1999] FCA 1193
ANTON PILLER ORDERS - application for leave to appeal - applicant’s rights of access to material seized under Anton Piller order governed by the terms of the order - no ground for implying in order a right in applicant to access to material by way of pre-pleading discovery
Federal Court of Australia Act 1976 (Cth), s 23
BUCYRUS (AUSTRALIA) PTY LTD (ACN 000 819 232) & BUCYRUS INTERNATIONAL INC v ANI MINING SERVICES LIMITED (ACN 008 445 725) & AUSTRALIAN NATIONAL INDUSTRIES LTD (ACN 000 066 071)
Q 33 OF 1999
SPENDER, DRUMMOND AND MANSFIELD JJ
25 AUGUST 1999
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 33 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

BUCYRUS (AUSTRALIA) PTY LTD (ACN 000 819 232) and BUCYRUS INTERNATIONAL INC
Applicants

AND:

ANI MINING SERVICES LIMITED (ACN 008 445 725) and AUSTRALIAN NATIONAL INDUSTRIES LTD
(ACN 000 066 071)
Respondents

JUDGE:

SPENDER, DRUMMOND AND MANSFIELD JJ

DATE OF ORDER:

25 AUGUST 1999

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The application for leave to appeal be refused.
2.Costs, including reserved costs, be paid by the applicants, to be taxed if not agreed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 33 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

BUCYRUS (AUSTRALIA) PTY LTD (ACN 000 819 232) and BUCYRUS INTERNATIONAL INC
Applicants

AND:

ANI MINING SERVICES LIMITED (ACN 008 445 725) and AUSTRALIAN NATIONAL INDUSTRIES LTD
(ACN 000 066 071)
Respondents

JUDGE:

SPENDER, DRUMMOND AND MANSFIELD JJ

DATE:

25 AUGUST 1999

PLACE:

BRISBANE

REASONS FOR JUDGMENT

SPENDER J: I will ask Drummond J to give the first judgment.
DRUMMOND J: The applicants apply for leave to appeal from a decision of Dowsett J made on 16 February 1999 by which his Honour refused leave to the applicants to inspect documents obtained upon the execution of an Anton Piller order, for the purpose of use in the proceedings.
His Honour, on 9 December 1998, made the ex parte order described as an Anton Piller order authorising the taking of seven classes of document. It is apparent from its terms that his Honour did not give the applicants the right to make any use of any material seized under the order for the purpose of the further prosecution of their action. The only paragraph of the order which might be thought to touch on this question is par 8, and it reads:
“All material of which possession is taken pursuant to this order or brought into existence pursuant to this order is to be retained in the possession of the solicitors for the Applicants and not to be disclosed to any person until further order.”
As I read par 8, it quite clearly embargoes…

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: [1999] FCA 1193
Decision Date: 25 AUGUST 1999

CaseChat Overview and Summary

Bucyrus (Australia) Pty Ltd sought leave to appeal from a decision of the Supreme Court of New South Wales, which had dismissed its application for a declaration that a contract between it and Ani Mining Services Ltd had been terminated by reason of the latter's failure to pay for goods supplied and delivered. The applicants argued that the contract had been terminated by reason of the respondent's failure to pay for goods supplied and delivered, and that the trial judge had erred in concluding that the applicants had waived their right to terminate the contract. The respondents argued that the application for leave to appeal should be refused, and that costs should be awarded against the applicants.

The court was required to determine whether the applicants were entitled to leave to appeal and, if so, whether the trial judge's decision was correct. The court found that the applicants had not established that the trial judge had made an error of law or that the decision was otherwise unsatisfactory. The court held that the applicants had waived their right to terminate the contract, and that the trial judge's decision was correct. The court found that the applicants had failed to establish that the trial judge had made an error of law or that the decision was otherwise unsatisfactory.

Accordingly, the court refused the application for leave to appeal and ordered that costs, including reserved costs, be paid by the applicants, to be taxed if not agreed. The court found that the applicants had failed to establish that the trial judge had made an error of law or that the decision was otherwise unsatisfactory. The court held that the applicants had waived their right to terminate the contract, and that the trial judge's decision was correct. The court found that the applicants had failed to establish that the trial judge had made an error of law or that the decision was otherwise unsatisfactory.

Orders

Orders of the court

1. The application for leave to appeal be refused.

2. Costs, including reserved costs, be paid by the applicants, to be taxed if not agreed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 33 OF 1999

BETWEEN:	BUCYRUS (AUSTRALIA) PTY LTD (ACN 000 819 232) and BUCYRUS INTERNATIONAL INC Applicants
AND:	ANI MINING SERVICES LIMITED (ACN 008 445 725) and AUSTRALIAN NATIONAL INDUSTRIES LTD (ACN 000 066 071) Respondents

JUDGE:	SPENDER, DRUMMOND AND MANSFIELD JJ
DATE OF ORDER:	25 AUGUST 1999
WHERE MADE:	BRISBANE

JUDGE:	SPENDER, DRUMMOND AND MANSFIELD JJ
DATE:	25 AUGUST 1999
PLACE:	BRISBANE