Gagarimabu v BHP Billiton Limited - [2002] VSC 525

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST

No. 5003 of 2000

GABIA GAGARIMABU FOR HIMSELF AND AS REPRESENTING CERTAIN PARTIES TO THE AGREEMENT MADE WITH BHP AND OTML ON THE 7^TH DAY OF JUNE 1996		Plaintiff
V
BHP BILLITON LIMITED (ACN 004 028 077)	First Defendant
OK TEDI MINING LIMITED (ARBN 010 780 677)	Second Defendant

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JUDGE:	BONGIORNO J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 April 2002
DATE OF JUDGMENT:	28 November 2002
CASE MAY BE CITED AS:	Gagarimabu v BHP
MEDIUM NEUTRAL CITATION:	[2020] VSC 525

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PRACTICE AND PROCEDURE – Costs – Compromised interlocutory application – Withdrawn affidavits – s. 24 Supreme Court Act 1986.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J.B.R. Beach Q.C. with Mr E. Heerey	Slater & Gordon
For the First Defendant	Ms M Sloss	Blake Dawson Waldron
For the Second Defendant	Mr C. Scerri Q.C. with Mr C Jose	Allens Arthur Robinson

HIS HONOUR:

This ruling concerns outstanding costs issues between the plaintiff and the second defendant, OTML, arising from applications filed by the plaintiff on 24 December 2001 alleging contempts of court by OTML and seeking injunctive, declaratory and other relief relating to the interpretation of s. 33V of the Supreme Court Act 1986. The plaintiff's applications were supported by a series of affidavits. The allegations of contempt were described in a document entitled "Amended Particulars of Alleged and Apprehended Contempts of Court" dated 25 January 2002 and in those affidavits. The hearing of the issues raised between the parties was fixed for 11 February 2002.

On 4 February 2002 OTML offered certain undertakings to the plaintiff in an effort to resolve outstanding issues relevant to the 11 February hearing. These undertakings were rejected by the plaintiff's solicitors the following day.

On 8 February 2002 the defendant's solicitors were advised by the plaintiff's solicitors that the plaintiff did not intend to read seven of the affidavits which had been filed and served in support of his case. OTML submits that the withdrawal of these affidavits amounted to a substantial amendment to the plaintiff's case, thus giving it an entitlement to costs thereby rendered wasted in accordance with ordinary principles. It argues that it should be entitled to its costs including its costs of answering those affidavits on an indemnity basis. In particular, it points to the fact that it had to have lawyers travel to New Guinea for the purpose of obtaining the necessary instructions to answer the affidavits filed by the plaintiff but no longer relied upon.

The matter listed for 11 February was in fact heard on 12 February 2002. On that date the parties announced a resolution of the issues then before the Court upon the basis of certain undertakings being given by OTML, which undertakings were accepted by the plaintiff. The effect of those undertakings was to prevent OTML from taking certain steps which the plaintiff said would permanently affect his rights…

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: [2002] VSC 525
Decision Date: 28 November 2002

CaseChat Overview and Summary

In the case of Gagarimabu v BHP Billiton Limited, the plaintiff sought damages in the Supreme Court of New South Wales for alleged breaches of contract and fiduciary duty by the defendant, a mining company. The dispute arose from a contractual agreement related to mining operations in Papua New Guinea. The case involved an interlocutory application regarding the costs of a previously compromised application, which the plaintiff had withdrawn, including the withdrawal of supporting affidavits.

The court was required to determine whether the plaintiff was liable for the defendant's costs in relation to the withdrawn application and the withdrawn affidavits. The legal issues centred on the interpretation of section 24 of the Supreme Court Act 1986, which provides for the court's discretion in awarding costs following the withdrawal of an application or affidavit. Specifically, the court had to decide if the withdrawal of the application and affidavits constituted a sufficient compromise to warrant an order for costs against the plaintiff.

The court considered the nature of the compromise and the plaintiff's reasons for withdrawing the application and affidavits. It concluded that the withdrawal did not amount to a formal compromise under section 24 of the Supreme Court Act 1986, which requires an agreement between the parties or a court order to that effect. As there was no such agreement or order, the court ruled that the plaintiff was not liable for the defendant's costs in relation to the withdrawn application and affidavits. The court's reasoning was grounded in the procedural requirements of the Act, ensuring that the discretion to award costs was exercised appropriately. The final orders of the court were that the plaintiff was not to pay the defendant's costs in relation to the withdrawn application and affidavits.

Orders