Gold and Copper Resources Pty Limited v Cadia Holdings Pty Limited

[2013] NSWLEC 15

Land and Environment Court

New South Wales

Medium Neutral Citation:	Gold and Copper Resources Pty Limited v Cadia Holdings Pty Limited [2013] NSWLEC 15
Hearing dates:	14 February 2013
Decision date:	14 February 2013
Jurisdiction:	Class 4
Before:	Biscoe J
Decision:	Orders as set out at [8].
Catchwords:	PRACTICE & PROCEDURE - discontinuance against two respondents - application to amend summons and points of claim against remaining respondent - costs.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 s 68 Mining Act 1992 Uniform Civil Procedure Rules 2005 r 19.6
Category:	Procedural and other rulings
Parties:	Gold and Copper Resources Pty Limited (Applicant) Cadia Holdings Pty Limited (First Respondent) Newcrest Mining Limited (Second Respondent) Climax Australia Pty Limited (Third Respondent)
Representation:	COUNSEL: P Tomasetti SC and J Taylor (Applicant) S Free (first and second Respondents) M Cottom, solicitor SOLICITORS: Corrs Chambers Westgarth (Applicant) Allens (First and Second Respondents) HWL Ebsworth Lawyers (Third Respondent)
File Number(s):	41010/12

EX TEMPORE Judgment

THE PROCEEDINGS

1. In these proceedings the applicant, Gold and Copper Resources Pty Limited, claims declarations and injunctions based on alleged unlawful conduct by the respondents in relation to the Cadia Valley mining complex near Orange. According to the applicant's points of claim (a) the complex is owned and operated by the first respondent, Cadia Holdings Pty Limited, which is the proponent of a major project application and the holder of mining leases issued under the Mining Act 1992; (b) the first respondent is a subsidiary of the second respondent, Newcrest Mining Limited; (c) the second respondent and the third respondent, Climax Australia Pty Limited, hold exploration licences issued under the Mining Act; and (d) the existing operations are carried out pursuant to development consents granted under the Environmental Planning and Assessment Act 1979.

1. Three interlocutory matters are listed before me today for determination: 

(a)   The costs of the third respondent's notice of motion filed on 23 November 2012 seeking an order that the applicant provides security for its costs.

(b) The costs of the first and second respondents' notice of motion filed on 21 November 2012 seeking an order that the applicant provide security for their costs.(c)A notice of motion filed by the applicant on 10 December 2012 seeking an order pursuant to s 68 of the Land and Environment Court Act 1979 and r 19.6 of the Uniform Civil Procedure Rules 2005 that leave be granted to the applicant to file an amended summons and amended points of claim.

1. In addition, the following five matters are listed before me today for directions only:

(a)   a notice to produce to the first respondent under cover of the letter dated 30 October 2012;

(b)   a subpoena to produce to the NSW Environment Protection Authority issued on 1 November 2012;

(c)   a notice of motion filed by the first and second respondents on 12 November 2012 seeking to set aside the said subpoena;

(d)   a notice of motion filed by the first and second respondents from 4 February 2012 seeking to strike out certain paragraphs of the points of claim, summary dismissal of the summons and prayers for relief in the summons;

(e)   a notice of motion filed by the third respondent on 4 February 2013 seeking to strike out certain paragraphs of the points of claim and summary dismissal of the summons or certain prayers for relief in the summons.

1. Yesterday the applicant notified the Court that it had been corresponding with the respondents for the discontinuance of the proceedings against the second and third respondents and that it would seek appropriate orders from the Court today.

1. At the hearing today the applicant filed in Court a notice of discontinuance against the second and third respondents, on which is endorsed the consent of those respondents to the discontinuance on terms that the applicant pay their costs. In effect, this disposes of the interlocutory matters to which I have referred concerning the second and third respondents in their favour.

1. That leaves outstanding the interlocutory matters to which I have referred between the applicant and the first respondent. They agree that (a) the applicant should have a short opportunity to further amend its proposed amended summons and points of claim to take account of objections communicated by the first respondent; (b) therefore the notice of motion to amend referred to at [2(c)] above should be stood over; (c) the applicant should pay the first respondent's costs of that notice of motion to date; and (d) the further amendments may well resolve the other matters involving the first respondent referred to at [3(a) -(d)] above and therefore those matters should be stood over until the proposed amended summons and points of claim are served. I concur.

1. The parties have brought in consent short minutes of order, which either dispose of or stand over all the matters listed before me today. I propose to make those orders.

1. By consent the orders of the Court are as follows:

(1)   The applicant is to pay the first respondent's costs to date of the applicant's notice of motion filed on 10 December 2013.

(2)   The notice of motion filed by the applicant on 10 December 2012 is adjourned to the Registrar's list for mention on 1 March 2013.

(3)   Leave is given to the applicant to serve any further proposed amended summons and amended points of claim on the first respondent by 5.00 pm on 22 February 2013.

(4)   The applicant is to pay the first respondent, by 5.00 pm on 22 February 2013, the sum of $10,000.00 in settlement of the costs of the first and second respondents relating to the notice of motion filed on 21 November 2012 seeking security for costs.

(5)   The notice of motion filed by the first and second respondents on 4 February 2013 seeking to strike out the Summons and Points of Claim filed by the applicant on 27 September 2012 is stood over to the Registrar's list on 1 March 2013 for directions.

(6)   The notice of motion filed by the third respondent on 4 February 2013 is dismissed.

(7)   The notice to produce to the first respondent served under cover of letter dated 30 October 2012 is stood over to the Registrar's list on 1 March 2013 for directions.

(8)   The subpoena to produce to the NSW Environment Protection Authority dated 1 November 2012 is stood over to the Registrar's list on 1 March 2013 for directions.

(9)   The notice of motion filed by the first and second respondents on 12 November 2012 seeking to set aside the subpoena to produce to the NSW Environment Protection Authority is stood over to the Registrar's list on 1 March 2013 for directions.

(10)   The first respondent is to notify the applicant of the first respondent's anticipated costs in order to vary Orders 1 to 5 made by the Registrar on 7 December 2012 requiring the applicant to provide security for costs for the first and second respondents by 22 February 2013.

(11)   Orders 1 to 5 made by the Registrar on 14 December 2012 requiring the applicant to provide security for costs for the third respondent are vacated.

(12)   The matter is listed for directions before the List Judge on 8 March 2013.

(13)   The parties have liberty to restore on three working days' notice.