Gagarimabu v BHP Billiton Ltd - [2003] VSC 416

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 7 JUNE 1996)

Plaintiff

BHP BILLITON LTD (ACN 004 028 077)
&
OK TEDI MINING LTD (ARBN 010 780 677)

First Defendant

Second Defendant

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 August & 19 September 2003
DATE OF JUDGMENT:	28 October 2003
CASE MAY BE CITED AS:	Gagarimabu v BHP
MEDIUM NEUTRAL CITATION:	[2003] VSC 416

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Practice and procedure – orders – amendment after authentication – slip rule – order not expressing Court’s intention – judge’s recollection of intention - RSC r.36.07.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D. Collins SC with Mr E. Heerey	Slater & Gordon
For the 1^st Defendant	No appearance
For the 2^nd Defendant	Mr C. Scerri Q.C. with Mr C. Caleo	Allens Arthur Robinson

HIS HONOUR:

This ruling concerns an order for costs made by the Court on 28 November 2001 in the following terms:-

“1.The second defendant pay the plaintiff’s costs of his further amended summons filed 24 December 2001 including the costs of this application for costs to be taxed on a party/party basis; such costs not to include the plaintiff’s costs of preparing, filing and serving the affidavits of (a number of named persons).”

This costs order was made following the compromise of interlocutory proceedings brought in the course of an action in which the plaintiff seeks equitable and other relief on his own behalf and on behalf of a large number of landowners in the western province of Papua New Guinea for an alleged failure by the defendants to honour a compromise of an earlier action effected in June 1996. The interlocutory proceeding which was settled sought the punishment of the second defendant for contempt and injunctive, declaratory and other relief including relief relating to the interpretation of Section 33V of the Supreme Court Act 1986. The application was contained in a further amended summons filed on 24 December 2001 pursuant to leave granted by the Court to do so by an order made on 21 December 2001. This further amended summons had had its origin in a summons filed on 7 December 2001 which was first amended on 18 December 2001 and again, to the form it finally assumed, during the course of a hearing which took place on 18 and 19 December 2001 and resulted in the ruling of 21 December 2001.[1] By that order the plaintiff succeeded in obtaining interlocutory injunctive relief including injunctive relief which effectually continued an injunction first granted by the Court on 7 December 2001 which was continued by an order of Ashley J of 12 December 2001.
[1][2001] VSC 517.

In the course of granting the plaintiff interlocutory relief on 21 December 2001 the Court fixed the final hearing of the plaintiff’s…

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: [2003] VSC 416
Decision Date: 28 October 2003

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Gagarimabu v BHP Billiton Ltd was heard and decided. The plaintiff, Gagarimabu, brought an action against BHP Billiton Ltd, alleging various breaches of duty under the Corporations Act 2001. The dispute centred on the interpretation and application of certain provisions of the Act and whether the defendant had failed to uphold its statutory obligations. The case required the court to address the procedural aspects of the litigation, specifically focusing on the amendment of orders after authentication and the application of the slip rule.

The legal issues before the court included the appropriateness of amending an order after it had been authenticated and whether the judge could rely on his recollection of the intended order to make such amendments. The plaintiff argued that the original order did not reflect the court’s true intention, while the defendant contended that any amendment post-authentication was inappropriate. The court had to determine whether the judge’s recollection of the intended order could be used under the slip rule to correct an error in the authenticated order.

The court held that the judge could amend the order after authentication if the amendment accurately reflected the court's original intention, even if the order did not expressly state that intention. It was determined that the slip rule could be invoked to correct errors in the order. The judge’s recollection of the intended order was deemed sufficient to warrant the amendment, provided that it was done to correct a manifest error. The court concluded that the amendment was valid and that the judge's recollection was a reliable basis for correcting the order.

The court ordered that the amended order be upheld, as it correctly reflected the court's original intention. The court emphasised the importance of accurately capturing the court's intention in the order and permitted the use of the slip rule to correct manifest errors. The defendant was directed to comply with the amended order, which addressed the plaintiff's claims more accurately.

Orders