Century Metals and Mining Nl v Yeomans, R.J., the Liquidator of the Phosphate Mining Corporation of Christmas Island

[1989] FCA 312

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512

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NOT FOR DISTRIBUTION JUDGMENT No. .31dllB9

IN THE FEDERAL COURT	)
OF AUSTRALIA	)
WESTERN AUSTRALIA	1
DISTRICT REGISTRY
GENERAL DIVISION	No. WAG 122 of 1988 No. WAG 188 of 1988
B E T W E E N :	CENTURY METALS AND MINING NL

First Applicant

and

THE UNION OF CHRISTMAS ISLAND

WORKERS

Second Applicant

and

ROBERT J. YEOMANS, THE LIQUIDATOR
OF THE PHOSPHATE MINING CORPORATION

OF CHRISTMAS ISLAND

First Respondent

and

THE MINISTER FOR ARTS AND

TERRITORIES

Second Respondent

FRENCH	J.
24 May	1989

"The Applicants do hereby undertake to pay to the Court directs such compensation (if any) as the First and Second Respondents in such manner as the

EX TEMPORE REASONS FOR JUDGMENT

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This is a motion by the second respondent filed on 4 May seeking an order for the discharge of restraining orders made on 23 March 1989, unless within three days the first and second applicants file a fresh undertaking in the following terms:

Court directs for loss sustained by reason of any deterioration of the plant, equipment, fixtures and fittings of the Phosphate Mining Corporation of Christmas Island, the Commonweawlth of Australia and the Phosphate Mining Company of Christmas Island Limited between 22 December 1988 and the date upon which the restraint on the Respondents ordered by Mr Justice French on 23 March 1989 is discharged, and also to pay to the First and Second Respondents such costs as incurred in respect of maintaining such plant, equipment, fixtures and fittings between 22 December 1988 and the date upon which the restraints are discharged as the Court directs."

The history of the interlocutory restraints and
associated undertakings in this matter is set out in part in

time I ordered that the continuance of the then existing restraint upon the respondents should be conditioned upon the applicants' undertaking to pay to the first respondent, in such manner as the Court directed, such compensation as the Court might direct for loss sustained by reason of any deterioration of the plant and equipment, fixtures and fittings, of the Phosphate Mining Corporation of Christmas Island between 22 December 1988 and the determination of the proceedings or further order.

Judgment in the substantive proceedings was delivered on that time, while dismissing the application, I acceded to a	16 March 1989 and formal orders were made on 23 March. And at
submission on the part of the applicants that the restraints be continued until the commencement of the hearing of an appeal against the judgment in the Full Federal Court. The undertaking required by that order as a condition of the continuance of the interlocutory stay, was the same undertaking given on 23 December, 1988 following the orders made on 22 December.

The order of 2 2 December allowed liberty generally to

apply. NO undertaking was then ordered in relation to damage which might be suffered by the second respondent, having regard to the position adopted by the second respondent in the course of argument on that question, as set out in p.7 of those reasons for decision. On 2 3 March, liberty to apply was again granted, including liberty to the second respondent to seek a variation or widening of the terms of the undertaking.

This motion on behalf of the second respondent which seeks to widen the terms of the undertaking was not filed until 4 May, lnltially returnable on 10 May, but ultimately came before me on 2 4 May. Some 12 days now remain before the hear~ng of the appeal, which is listed before the ~ u l l Court in Sydney. Various matters have been put on behalf of the second respondent, who is supported in this application by the first respondent, in favour of a widening of the terms of the undertak~ng so that it would be an undertaking to pay compensation, not only to the frrst but also to the second respondent, not only in respect of loss sustained by reason of deterioration of the plant and equipment of the Phosphate Mining Corporation of Christmas Island but also

Australia and the Phosphate Mining Company of Christmas Island	deterioration of the plant and equipment of the Commonwealth of
Limited, the predecessor in title of the corporation. The undertaking sought would be wide enough to include the costs of maintenance of such plant, equipment, fixtures and fittings and would apply to deterioration and maintenance costs from 2 2 December 1988.
When I specified the limited form of undertaking required on 22 December 1988, I had regard to the particular nature of these proceedings and specifically the public interest element in them in not imposing a requirement for the usual undertaking which would have been much wider in its terms and would have required a commitment to pay compensation to any person adversely affected by the operation of the restraint.
Those public interest factors do not have the same weight at this time, the application having been dismissed. That is not to say that they are completely absent. There is an appeal pendlng and the applicants are exercising thelr right to challenge the prlmary decision. But there are two matters whlch count more heavily than the other factors addressed on behalf of the respondents. The first is that the respondents have left it very late to seek a significant retrospective widening of the undertaking. Had they taken advantage of their liberty to apply to vary its terms either immediately after the outcome on 23 March of perhaps even earlier, following the decision of 22 December, the applicants would have been in a position to consider whether they wished to give such an undertaking and the litigation might
have taken a different course. At this stage one can well imagine that the parties will be well on the way to preparation of
argument for the hearing of the appeal and preparation of appeal books. Indeed I imagine that by now that preparation would have been completed and that significant cost and expense will have been incurred. The delay means that thls application is seeking in effect to change the ground rules when the parties have been proceeding on certain assumptions as to potential liability in the event that the appeal is unsuccessful.
The second factor is that the matter is very close to consideration by the Full Court. It is only really a somewhat extraordinary extension of the original jurisdiction of the Court as distinct from its appellate jurisdiction that leads to this stay being granted in the first place. And it reflects perhaps the consciousness of the inconvenience of requiring a party to apply immediately upon ludgment being given to a Full Court for the grant of a stay pendlng the hearlng of the appeal.

The hearing of the appeal is only 12 days away. The

matter is, as it were, within the shadow of the appellate jurisdiction of the Court and it is, in my opinion, now really a matter for the Full Court to determine whether or not any variation should be given to the terms of the undertaklng if an extension of the stay is to be granted. I am therefore not disposed to at this stage vary the terms of the undertaklng. The motion will be dismissed.

four ( 4 ) pages are a true copy of the	I certlfy that thls and the preceding
Ex Tempore Reasons for Judgment of his Honour Justice French.
Date: 2 y . s b-7

Counsel for the Applicants: Mr R. Le Niere

Solicitors for the Applicants: Malleson Stephen Jaques

Counsel for the First Respondent: Mr R. Lewis

Solicitors for the Second Respondent: Sly & Weigall

Counsel for the Second Respondent: Mr P. Macliver

Solicitors for the Second Respondent: Australian Government

Solicitor

Date of Hearing:  24 May 1989

Date of Judgment: 24 May 1989