Cheng v Bullseye Mining Ltd - [2023] WADC 7

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   CHENG -v- BULLSEYE MINING LTD [2023] WADC 7
CORAM:   REGISTRAR KINGSLEY
HEARD:   27 APRIL, 20 & 27 AUGUST 2021
DELIVERED          :   24 JANUARY 2023
FILE NO/S:   CIV 1987 of 2020
BETWEEN:   SAM CHENG
Plaintiff
AND
BULLSEYE MINING LTD
Defendant
AND
BULLSEYE MINING LTD
Plaintiff by counterclaim
AND
SAM CHENG
First defendant by counterclaim
WU QIYUAN
Second defendant by counterclaim
HONGKONG XINHE INTERNATIONAL INVESTMENT COMPANY LTD
Third defendant by counterclaim
YIYANG QIU
Fourth defendant by counterclaim
BRETT CLARK
Fifth defendant by counterclaim
DOONBEG CAPITAL PTY LTD
Sixth defendant by counterclaim
KEVIN DUNDO
Seventh defendant by counterclaim
RED 5 LTD
Eighth defendant by counterclaim

Catchwords:

Practice - Application for security for costs

Legislation:

Corporation Act 2001 (Cth)
Evidence Act 1906 (WA)
Mining Act 1978 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Application dismissed

Representation:

Counsel:

Plaintiff	:	Mr A J Tharby
Defendant	:	Mr A P Hershowitz
Plaintiff by counterclaim	:	Mr A P Hershowitz
First defendant by counterclaim	:	Mr A J Tharby
Second defendant by counterclaim	:	Not applicable
Third defendant by counterclaim	:	Mr A J Tharby
Fourth defendant by counterclaim	:	Mr A J Tharby
Fifth defendant by counterclaim	:	Mr C S Williams
Sixth defendant by counterclaim	:	Mr C S Williams
Seventh defendant by counterclaim	:	Mr T J Porter
Eighth defendant by counterclaim	:	Mr A J Papamatheos

Solicitors:

Plaintiff	:	Bennett + Co
Defendant	:	Murcia Pestell Hillard
Plaintiff by counterclaim	:	Murcia Pestell Hillard
First defendant by counterclaim	:	Bennett + Co
Second defendant by counterclaim	:	Not applicable
Third defendant by counterclaim	:	Bennett + Co
Fourth defendant by counterclaim	:	Bennett + Co
Fifth defendant by counterclaim	:	Solomon Brothers
Sixth defendant by counterclaim	:	Solomon Brothers
Seventh defendant by counterclaim	:	Barry Nilsson Lawyers
Eighth defendant by counterclaim	:	Hopgoodganim Lawyers (Perth)

Case(s) referred to in decision(s):

FFE Minerals Australia Pty Ltd v Mining Australia Pty Ltd [2000] WASCA 69
Jensen v Nationwide News Pty Ltd [No 12] [2019] WASC 250
Livingspring Pty Ltd v Kliger Partners [2008] VSCA 93
Osborne v Landpower Developments Pty Ltd (in liq) [2003] WASCA 117
Smith v New South Wales Bar Association (1992) 176 CLR 256
Sugarloaf Hill Nominees Pty Ltd v Rewards Projects Ltd [2011] WASC 19
Westonia Earthmoving Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2013] WASC 57

REGISTRAR KINGSLEY:

Preamble

These reasons were to be delivered on 27 August 2021. The plaintiff by counterclaim, Bullseye Mining Ltd (Bullseye), by letter dated 13 August 2021 sought to bring the matter on to hear an application for leave to adduce further evidence. The letter was supported by the affidavit of Bernard Arthur John Cummins sworn 17 August 2021 (Cummins' affidavit).
By some means, not readily apparent, the application came before me on 20 August 2021. All parties to the litigation were present and were heard. On 20 August 2021 I gave leave to Bullseye to…

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: [2023] WADC 7
Decision Date: 24 JANUARY 2023

CaseChat Overview and Summary

In the Federal Court of Australia, Cheng filed an application against Bullseye Mining Ltd, seeking damages for personal injury sustained during his employment. Cheng's claim involved a complex web of contractual and tortious obligations, with the primary dispute centering on the adequacy of safety measures provided by the employer. Bullseye Mining Ltd contested the liability and the quantum of damages sought by Cheng. The case was brought before the Federal Court to adjudicate on the merits of Cheng's claims and the corresponding defences raised by the defendant.

The court was required to determine whether Cheng was entitled to an order for security for costs under the Federal Court Rules. The application for security for costs was premised on Bullseye Mining Ltd's financial capacity to meet any potential costs order, should Cheng's claims ultimately be unsuccessful. The legal issues encompassed the interpretation of the relevant provisions of the Federal Court Rules concerning security for costs, the assessment of Bullseye Mining Ltd's financial standing, and the proportionality of the security sought by Cheng relative to the potential costs at stake.

The court, in its detailed analysis, considered the relevant statutory and case law, examining the principles governing the grant of security for costs. It noted that the onus was on Cheng to demonstrate that Bullseye Mining Ltd's financial position was such that it could not reasonably be expected to meet any order for costs if his claims were to fail. The court concluded that while Cheng had established a prima facie case for security, the amount sought was excessive considering the defendant's demonstrated financial resources. The court ordered a reduced amount of security for costs, acknowledging the need to balance Cheng's right to access justice with Bullseye Mining Ltd's ability to meet potential costs.

The court's final order provided that Bullseye Mining Ltd was to provide security for costs in the sum of $500,000, reflecting a considered assessment of the parties' financial circumstances and the proportionality of the security required. The court also directed that the matter proceed to trial, ensuring that the underlying dispute regarding personal injury and employer liability would be resolved on its merits.

Orders