Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No. 6)

The case of Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No. 6) involves a dispute between Cherwell Creek Coal Pty Ltd (Cherwell Creek) and BHP Queensland Coal Investments Pty Ltd (BHP). The matter was before the Supreme Court of Queensland, where Cherwell Creek sought an appeal against the primary judge's decisions regarding the respondents' amended defence and the costs incurred due to the delay in filing it. The key issues before the court were whether the primary judge had applied the wrong principle or misapplied the correct principle in allowing the respondents to file an amended defence 26 days after the ordered date, and if so, whether the court should interfere with the primary judge's discretion in that matter. Another issue was whether the primary judge made an error in exercising the discretion regarding the costs incurred due to the delay in filing the amended defence.

The court examined the primary judge's decisions and found that while the delay in filing the amended defence was significant, the primary judge had considered the relevant factors in exercising the discretion to allow the extension. The court held that the primary judge did not act on a wrong principle or misapply the correct principle, and had adequately considered the material considerations in reaching the decision. Regarding the costs, the court noted that the primary judge had accepted that Cherwell Creek would suffer some wasted costs due to the extension of time granted to the respondents. However, the primary judge had reserved the question of the costs thrown away until after the trial, as it was difficult to determine the scale of additional and wasted costs at that stage. The court found that the primary judge had not erred in reserving the question of costs until after the trial, as it would be in a better position to assess the prejudice after the trial.

In summary, the court dismissed the appeal regarding the extension of time to file the amended defence and allowed the appeal regarding the costs incurred due to the delay in filing the amended defence. The court ordered that the costs thrown away by reason of the respondents having leave to file the amended defence would be paid by BHP, but the assessment of those costs would not be made until after the trial and determination of the other proceeding. The parties were granted leave to make written submissions as to the costs of the appeal within 14 days of the delivery of the judgment.