Chameleon Mining NL v Murchison Metals Limited (No 2)

[2011] FCA 400

FEDERAL COURT OF AUSTRALIA

Chameleon Mining NL v Murchison Metals Limited (No 2) [2011] FCA 400

Citation:		Chameleon Mining NL v Murchison Metals Limited (No 2) [2011] FCA 400
Parties:		CHAMELEON MINING NL v MURCHISON METALS LIMITED ACN 078 257 799, PHILLIP FELICE GRIMALDI, GREGORY BENNETT BARNES,  CROSSLANDS RESOURCES LTD ACN 061 262 397,  PINNACLE NOMINEES PTY LTD ACN 008 928 443 and JACK HILLS HOLDING PTY LTD (ACN 127 384 696)
File number(s):		NSD 2355 of 2007
Judge:		JACOBSON J
Date of judgment:		19 April 2011
Date of hearing:	13 April 2011
Date of last submissions:	13 April 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	11
Counsel for the Plaintiff:	Mr C Withers
Solicitor for the Plaintiff:	Bennett & Co Barristers And Solicitors
Solicitor for the First, Fourth and Sixth Defendants:	Ms S Bellini of Freehills
Counsel for the Second Defendant:	Mr J Thomson with Mr M Watts
Solicitor for the Second Defendant:	MJ Woods & Co

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 2355 of 2007

BETWEEN:

 CHAMELEON MINING NL
Plaintiff

AND:

MURCHISON METALS LIMITED ACN 078 257 799
First Defendant

PHILLIP FELICE GRIMALDI
Second Defendant

GREGORY BENNETT BARNES
Third Defendant

 CROSSLANDS RESOURCES LTD ACN 061 262 397
Fourth Defendant

 PINNACLE NOMINEES PTY LTD ACN 008 928 443
Fifth Defendant

JACK HILLS HOLDING PTY LTD (ACN 127 384 696)
Sixth Defendant

JUDGE:	JACOBSON J
DATE OF ORDER:	13 APRIL 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Honourable Mr John von Doussa AC QC be appointed as the referee pursuant to Order 22 of my orders of 20 December 2010.

2.The Second Respondent pay the costs incurred by the Applicant in opposing the Second Respondent’s application for a stay made on 24 February 2011.   

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 2355 of 2007

BETWEEN:

 CHAMELEON MINING NL
Plaintiff

AND:

MURCHISON METALS LIMITED ACN 078 257 799
First Defendant

PHILLIP FELICE GRIMALDI
Second Defendant

GREGORY BENNETT BARNES
Third Defendant

 CROSSLANDS RESOURCES LTD ACN 061 262 397
Fourth Defendant

 PINNACLE NOMINEES PTY LTD ACN 008 928 443
Fifth Defendant

JACK HILLS HOLDING PTY LTD (ACN 127 384 696)
Sixth Defendant

JUDGE:	JACOBSON J
DATE:	13 APRIL 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant requested that this matter be relisted in order to deal with two issues arising out of the orders that I made on 20 December 2010. 

2. The first issue is the appointment of a referee arising out of Orders 20 to 22 inclusive.  The parties have been unable to agree on the identity of a referee. 

3. The applicant has submitted a list of potential referees including the Honourable John von Doussa AC QC who is the preferred referee of the applicant. Mr Thompson, who appears for Mr Grimaldi, does not oppose the appointment of Mr von Doussa.  However Mr Thompson has submitted that I ought not to make the order today because his client has made an application for a stay of the orders of 20 December to be dealt with in the appellate jurisdiction of the court. 

4. It seems to me that there is utility in making the appointment today notwithstanding the fact that the stay application is yet to be dealt with.  If the stay application succeeds, then Mr von Doussa will not be able to embark upon the reference until the outcome of the appeal.  However if the stay application should fail, then the reference can go forward at an earlier date.  Accordingly, I will make an order appointing Mr von Doussa as the referee.

5. The second issue which arises relates to Order 19 of the orders of 20 December.  That order provided for Mr Grimaldi to file and serve by 18 February 2011 an affidavit disclosing all matters within his knowledge relating to inter alia the past or present legal and beneficial ownership of the shares, the options and any shares resulting from the exercise of the options. 

6. Mr Grimaldi swore an affidavit which is headed “Affidavit of Phillip Grimaldi and attachments, sworn 28 February 2011”.  That date appears to be in error because the affidavit was filed on 18 February 2011 and was read before me on 24 February 2011 when Mr Grimaldi sought a stay of the orders.

7. I refused the stay sought by Mr Grimaldi for a number of reasons including the fact that I was not satisfied that he had complied with Order 19 of the orders made on 20 December 2010.  Chameleon now seeks an order that Mr Grimaldi file and serve an affidavit complying with Order 19 of my orders.  Mr Thompson opposes the making of that order. 

8. It seems to me that it is undesirable that I make such an order today.  The reason for this is that Mr Grimaldi contends that his affidavit of 18 February did comply with the orders that I made and that will be an issue in the stay application which will be dealt with in due course by a duty judge sitting in the court’s appellate jurisdiction. 

9. It may be that following the outcome of the stay application, the matter will need to come back to me because Chameleon contends that compliance with the terms of Order 19 is a necessary prerequisite for the reference to be able to proceed.  However, as I have said, the issue of whether the order has been complied with will be one of the matters to be determined on the further stay application and in those circumstances I see no need to deal with it this morning. 

10. I therefore decline to make the order sought by Chameleon that Mr Grimaldi file an affidavit complying with Order 19.  In short, either that order has already been complied with or it has not.  That is a matter which will be the subject of further consideration and, if necessary, can be revisited in due course.

11. The only other matter which arises this morning is the question of costs of Mr Grimaldi’s application for a stay on 24 February 2011.  He was unsuccessful on the application before me and it is therefore appropriate that I make an order that Mr Grimaldi pay the costs incurred by the applicant in opposing his application for a stay.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:       13 April 2011