Chameleon Mining NL v Murchison Metals Ltd

[2009] FCA 137

FEDERAL COURT OF AUSTRALIA

Chameleon Mining NL v Murchison Metals Ltd [2009] FCA 137

PRACTICE AND PROCEDURE – application for leave to file expert evidence – filing of expert evidence would have effect of vacating trial date – delay by plaintiff in seeking to adduce expert evidence – no explanation by plaintiff of reasons for delay – prejudice to defendants – some losses cannot be compensated by costs order – application for leave denied

Black & Decker (Australasia) Pty Ltd v GMCA Pty Ltd [2007] FCA 1623 followed
Ingot & Ors v Macquarie & Ors [2004] NSWSC 1219 referred to
Micallef v ICI Operations Pty Ltd & Anor [2001] NSWCA 274 referred to
Queensland v J L HoldingsPty Ltd (1997) 189 CLR 146 referred to

CHAMELEON MINING NL v MURCHISON METALS LTD ACN 078 257 799, PHILLIP FELICE GRIMALDI, GREGORY BENNETT BARNES, CROSSLANDS RESOURCES LTD ACN 061 262 397 and PINNACLE NOMINEES PTY LTD ACN 008 928 443

NSD 2355 of 2007

JACOBSON J
5 FEBRUARY 2009
SYDNEY

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

BETWEEN: CHAMELEON MINING NL
Plaintiff

AND:

MURCHISON METALS LTD 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

JUDGE:	JACOBSON J
DATE OF ORDER:	5 FEBRUARY 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application to adduce further evidence is dismissed.

2.The plaintiff pay the costs of today’s application.

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 eSearch on the Court’s website.

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

BETWEEN: CHAMELEON MINING NL
Plaintiff

AND:

MURCHISON METALS LTD 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

JUDGE:	JACOBSON J
DATE:	5 FEBRUARY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The plaintiff sought leave to file three categories of expert evidence, but in the course of argument this afternoon, has modified the claim as set out below.  The defendants oppose leave being granted. 

2. These proceedings were commenced on 29 November 2007 and the Statement of Claim which was prepared was obviously prepared with meticulous and comprehensive thoroughness.  It covers approximately 100 pages.  I do not need to set out the substance of the claim. 

3. The plaintiff was initially represented by Messrs Atanaskovic Hartnell, solicitors, but on 5 November 2008, the plaintiff withdrew instructions from that firm and instructed Messrs Piper Alderman.  There was some delay in Piper Alderman obtaining the plaintiff’s file from the former solicitors and the file was not obtained until 5 January 2009.  Nothing which I am about to say should suggest that there is any…