Diversified Mineral Resourses N.L. v CRA Exploration Pty Ltd

[1991] FCA 874

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'-4

JUDGMENT No. .g.34./.9.~-

THE F E D E M COURT OF AUSTRALIA ) No. QG 163 of 1990

UEENSLAND DISTRICT REGISTRY	1
GENERAL DIVISION	)

BETWEEN: DIVERSIFIED MINERAL RESOURCES N.L.

CENTRAL VICTORIAN GOLD MINES N.L.

Applicants

AND* I;RA EXPLORATION PTY. LIMITED

Respondent

MINUTES OF ORDER

MAKING ORDER:  PINCUS J.

DATE OF ORDER:	9 AUGUST 1991
WHERE MADE:	BRISBANE
mE COURT ORDERS THAT:

1.    The matter be adjourned until 4.15 p.m. 10 September

1991.

kK?mg Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	1	No. QG 163 of 1990
WEENSLAND DISTRICT REGISTRY	)
GENERAL DIVISION	1

BETWEEN: DIVERSIFIED MINERAL RESOURCES N.L.

CENTRAL VICTORIAN GOLD MINES N.L.

Applicants

AND:  CRA EXPLORATION PTY. LIMITED

Respondent

m: PINCUS J.

M: BRISBANE

m: 9 SEPTEMBER 1991

EX TEMPORE REASONS FOR JUDGMENT

This is an application for further discovery

together with an application attacking the statement of claim.
The two applications are inter-related in the sense that, as
is pointed out by senior counsel for the respondent, the
attack on the statement of claim highlights what are said to

be the deficiencies of the application for discovery.

The pleading has some complexities, but the simplest

aspect of it is that it says that some property, viz. a mining

interest, was sold at an undervalue because the applicant was

misled by the respondent. The expressions used in the

pleading are slightly more elaborate than that. The pleading

says :

"The applicants sold the interests referred
to...at a price that was not less than $7
million dollars below the true market price".

Mr. Keane Q.C. says that those particulars do not

necessitate any discovery. The claim as thus put forward
seems to me to be an ambit claim. Of course, the applicants
may not receive precisely what is claimed and it seems to me
that it is improbable that damages could be assessed in a case
of this sort without some detailed information about the

mining tenement in question.

It was sold to the respondent and Mr. Lennon Q.C.,

who is leading for the applicants, points out that at the least the applicants, if otherwise successful, might well persuade the Court that the purchaser, in determining what it

would pay, would take into account the purchaser's knowledge
of the precise nature, extent and location of the
mineralisation in the tenement. I therefore do not see any
sound argument against the proposition that the documents
which disclose the nature of the interest are, prima facie,

discoverable.

The second leg of Mr. Keane's argument is that the

discovery is unnecessary:  the trial could take place without

it and that is so. But it seems to me, as a practical matter,
that it is improbable that the trial would start and conclude
without an examination of the documents which Mr. Lennon
seeks. It has, however, troubled me that Mr. David Thomas,
who is instructing Mr. Keane, has made an affidavit,
admittedly a hearsay affidavit, which sets up a case of
confidentiality.

I am conscious of the fact that Mr. Lennon did not

have this material in adequate time to answer it and therefore
I shall not say too much about it, but I do not want to make
an order which will unnecessarily damage the respondent. So
that, in the end, what I propose to do is to adopt the course
which Mr. Lennon suggested should be taken at the outset; I
will hold that the material in question is, in principle,
discoverable and adjourn the matter until tomorrow afternoon

at 4.15 p.m.

If there is no agreement, I will have to determine

the precise form of order tomorrow.	If you can agree, I will
be grateful.	I will deal with the question of costs
tomorrow.

I certify that this and the
two preceding pages are a
true copy of the reasons
for judgment herein of his

Honour Mr Justice Pincus

Associate

Date 1 /tb~cju<f {'?C]\