Gregory Paul Martin and Shadmar Pty Ltd v Graham Alfred Hawks and Western Resources and Exploration Pty Ltd
[2007] WASC 70
•29 MARCH 2007
GREGORY PAUL MARTIN AND SHADMAR PTY LTD -v- GRAHAM ALFRED HAWKS AND WESTERN RESOURCES AND EXPLORATION PTY LTD [2007] WASC 70
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 70 | |
| Case No: | CIV:1239/2004 | 12 MARCH 2007 | |
| Coram: | TEMPLEMAN J | 29/03/07 | |
| 26 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | GREGORY PAUL MARTIN AND SHADMAR PTY LTD GRAHAM ALFRED HAWKS AND WESTERN RESOURCES AND EXPLORATION PTY LTD |
Catchwords: | Equity Fiduciaries Two clients of solicitor competing over mining tenement Claim based on solicitor's duty to inform both clients of forfeiture proceedings Summary judgment application by one client Whether cause of action Correctness in fact of allegations Whether arguable that the duty arises in the circumstances in any event Whether claim time barred |
Legislation: | Nil |
Case References: | Cameron v Cole (1944) 68 CLR 571 DJL v Central Authority (2000) 170 ALR 659 Hawks & Anor v Shadmar Pty Ltd & Anor [2004] WASC 252 Henriksens Rederi A/S v PHZ Rolimpex [1973] 3 All ER 589 Knox v Gye (1872) LR 5 HL 656 Nocton v Lord Ashburton [1914] AC 932 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiffs
AND
GRAHAM ALFRED HAWKS AND WESTERN RESOURCES AND EXPLORATION PTY LTD
Defendants
Catchwords:
Equity - Fiduciaries - Two clients of solicitor competing over mining tenement - Claim based on solicitor's duty to inform both clients of forfeiture proceedings - Summary judgment application by one client - Whether cause of action - Correctness in fact of allegations - Whether arguable that the duty arises in the circumstances in any event - Whether claim time barred
Legislation:
Nil
(Page 2)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiffs : Mr A J N Aristei
Defendants : Mr G E Taylor
Solicitors:
Plaintiffs : Lloyd & Associates
Defendants : Taylor Linfoot & Holmes
Case(s) referred to in judgment(s):
Cameron v Cole (1944) 68 CLR 571
DJL v Central Authority (2000) 170 ALR 659
Hawks & Anor v Shadmar Pty Ltd & Anor [2004] WASC 252
Henriksens Rederi A/S v PHZ Rolimpex [1973] 3 All ER 589
Knox v Gye (1872) LR 5 HL 656
Nocton v Lord Ashburton [1914] AC 932
(Page 3)
1 TEMPLEMAN J: In these proceedings, brought by originating summons, I directed that the issues be tried on pleadings. Pursuant to that direction, the defendants (who carried the onus of proof) filed points of claim on 18 August 2006. The plaintiffs filed their points of defence on 20 October 2006.
2 On 22 December 2006, the plaintiffs brought this application for summary judgment on various grounds to which I shall refer below.
3 The background to this litigation is somewhat complex. A convenient starting point for present purposes is the decision of the Minister for Mines, published in the Government Gazette of 31 March 2000, to forfeit Exploration Licence 36/359 for non-compliance with expenditure conditions, with prior right of application being granted to Shadmar Pty Ltd ("Shadmar"), under s 100(2) of the Mining Act 1978 (WA) ("the Act").
4 The Minister made his decision under s 99(1)(a) of the Act on the recommendation of the Mining Warden following hearings on 25 February and 3 March 2000.
5 Shadmar and Gregory Paul Martin, who is a director and shareholder of Shadmar, are the plaintiffs in the originating summons proceedings.
6 At the hearings before the Warden in February and March 2000, Shadmar was represented by its solicitor. That solicitor was also acting for Graham Alfred Hawks and Western Resources and Exploration Pty Ltd ("Western Resources") who are the defendants to the originating summons. Mr Hawks and Western Resources had themselves issued a plaint against EL 36/359 in an attempt to acquire the relevant ground.
7 Mr Hawks alleges that he did not know that his solicitor had been retained by Mr Martin and Shadmar, and had not consented to his acting for them.
8 In par 10 of the points of claim, the defendants allege that:
"During the period from about April 1999 to about July 2000, Ron Martin, Greg Martin and Shadmar Pty Ltd engaged in a course of conduct which was fraudulent, and constituted an abuse of legal process and of the Wardens Court and of the provisions of the Mining Act, with the intention of acquiring the Ground. That course of conduct is set out in paragraphs 11 to 20 hereof."
(Page 4)
9 The defendants raised these issues in plaint 7/012, filed in the Warden's Court. The issues are set out in detail in a statement of claim filed in that plaint on 31 May 2002.
10 The relief claimed by the defendants included orders that the declarations and recommendations made by the Warden should be recalled, and that they had been made as a result of a course of conduct which was fraudulent, or which resulted from misstatements and suppression of facts, or were made in circumstances in which the Minister and the defendants had not been heard adequately. The defendants sought also a declaration that it was against public policy, the public interest and equity that the plaintiffs should benefit from the conduct complained of by being awarded a tenement over the relevant ground. The defendants sought injunctions requiring the plaintiffs to withdraw applications for tenements and to restrain them permanently from proceeding with such applications.
11 In the alternative, the defendants sought orders that the plaintiffs should hold any tenement which might be granted over the ground the subject of EL 36/359 in trust for them.
12 An issue then arose as to the jurisdiction of the Warden's Court to deal with plaint 7/012. On 30 October 2003, the Warden stated a case for the opinion of the Supreme Court, pursuant to s 146(1) of the Act. The Warden asked whether he had jurisdiction to hear and determine the claim in plaint 7/012 and whether he had power to grant the relief sought.
13 On 24 February 2004, the present plaintiffs filed their originating summons.
14 In par 1 of the originating summons, the plaintiffs sought declarations that the Warden's Court did not have jurisdiction to hear and determine the causes of action contained in plaint 7/012: and that further, or alternatively, the Court did not have power to grant the relief sought by the plaint. The originating summons therefore raised the same questions as the Warden's Case Stated.
15 In pars 2 to 7 of the originating summons, the plaintiffs sought other relief. This included (in pars 3, 4 and 5) what are, in effect, declarations that the plaintiffs' application for a mining lease over the ground formerly the subject of EL 36/359, did not constitute an abuse of process or otherwise contravene the Act on the grounds relied on in certain objections made by the defendants. These objections pre-dated plaint 7/012 but raised the same issues.
(Page 5)
16 On 24 May 2004, Le Miere J heard argument on the case stated and the identical issue raised by par 1 of the originating summons.
17 On 26 November 2004, his Honour handed down a judgment in which he held that the Warden did not have jurisdiction to hear and determine the present defendants' claim in plaint 7/012 and that, consequently, the Warden did not have power to grant any relief in those proceedings: Hawks & Anor v Shadmar Pty Ltd & Anor [2004] WASC 252.
18 In his reasons, Le Miere J set out in detail the history of the proceedings in the Warden's Court. I adopt, with gratitude, his Honour's account of these matters which, therefore, it is not necessary for me to repeat.
19 In opposition to pars 2 to 7 of the originating summons, the defendants filed an affidavit sworn by Mr Hawks, on 17 March 2005, to which he exhibited the statement of claim in plaint 7/012.
20 On 27 April 2006, the plaintiffs sought leave to amend the originating summons.
21 The effect of the proposed amendments was to delete the claims for declarations that (in effect) there had been no impropriety in the matters leading to the plaintiffs' application for mining lease 36/359, and to substitute claims that the Warden did not have jurisdiction to deal with those matters.
22 Not surprisingly, the defendants objected to the proposed amendments to the originating summons. By way of an aside, I consider the objection well-founded. The question whether or not the Warden had jurisdiction to deal with the matter seems to me to be irrelevant. The originating summons in which the issue was raised is a proceeding in this Court.
23 The plaintiffs' application to amend came before me on 21 July 2006.
24 I then took the view that the issues remaining for determination in the originating summons were, in essence, those raised by the defendants in their plaint 7/012. The issues were raised squarely by Mr Hawks' affidavit sworn 17 March 2005 in opposition to the originating summons. However, I considered it would be conducive to the efficient resolution of the dispute, to have the issues identified by way of pleadings. I therefore
(Page 6)
- gave directions for the filing of points of claim by the defendants and points of defence by the plaintiffs.
25 The plaintiffs now seek summary judgment against the defendants. Their application is formulated in the following way:
"2. Pursuant to Order 14, Rule 1 or alternatively Order 16, Rule 1 of the Supreme Court Rules as applied to the Defendants' points of claim by Order 29, Rule 2(1) of the Supreme Court Rules, judgment of dismissal be entered against the Defendants' claims on the alternative grounds that:
i) the action or actions contained therein disclose no reasonable cause of action (pursuant to Order 20, Rule 19(1)(a) thereof);
ii) the action or actions contained therein are scandalous, frivolous or vexatious (pursuant to Order 20, Rule 19(1)(b) thereof or alternatively pursuant to Order 16, Rule 1 thereof);
iii) the action or actions contained therein may prejudice, embarrass or delay the fair trial of these proceedings (pursuant to Order 20, Rule 19(1)(c) thereof);
iv) the action or actions therein constitute an abuse of the process of this Honourable court (pursuant to Order 20, Rule 19(1)(d) thereof);
v) the Plaintiffs have a good defence on the merits to the action or actions therein."
"The Form 5 dated 20 April 1999
11.1. On or about 20 April 1999, Shadmar Pty Ltd lodged a Form 5 expenditure report for E 36/359, in respect of the year ending 10 December 1998.
(Page 7)
- 11.2 At that date, E 36/359 was still registered in the name of Silver Gecko Pty Ltd, but it had been sold by the liquidator to Shadmar Pty Ltd by a Contract of Sale dated 15 January 1999 on an 'as is' basis.
11.3 The information contained in the Form 5 as to expenditure was false.
11.4 The Form 5 was lodged by Shadmar Pty Ltd without the authority of the liquidator.
11.5 The Form 5 was lodged later than the time required for its lodgement.
11.6 The Form 5 was lodged by Shadmar Pty Ltd in liaison with its solicitors, Lawton Gillon.
11.7 The Form 5 was lodged by Shadmar Pty Ltd in order to mislead the Mines Department and the public and to thereby forstall [sic] forfeiture procedures being taken against E 36/359.
Plaint 45/990
12.1 On 17 February 2000, Shadmar filed Plaint 45/990 in respect of E 36/359 at Leonora. At that time Shadmar Pty Ltd was the registered proprietor of E 36/359 as the transfer from the liquidator to Shadmar Pty Ltd had been registered on 11 November 1999.
12.2 The Defendants to Plaint 45/990 were the liquidator of Silver Gecko Pty Ltd and the Minister for Mines. The Plaint sought a declaration that the Form 5 dated 20 April 1999 was accepted by the Minister contrary to law and it sought deletion of the Form 5 from the Register.
12.3 Shadmar Pty Ltd's purpose in filing Plaint 45/990 was to seek forfeiture of Shadmar's own tenement E36/359 and a prior right for Shadmar Pty Ltd as plaintor on Plaint 9/989 to apply for the Ground.
(Page 8)
- 12.4 Plaint 45/990 was an abuse of legal process and of the Mining Act in that:
(a) The Form 5 had been filed by Shadmar Pty Ltd itself, in order to forestall possible forfeiture proceedings, and contained false information as set forth above;
(b) The liquidator had no interest in the matter, having sold E 36/359 to Shadmar Pty Ltd on an 'as is' basis and having already been paid, and the transfer of E 36/359 from the liquidator to Shadmar Pty Ltd had been registered.
(c) Shadmar Pty Ltd was both the Plaintiff and the registered proprietor of E 36/359, Shadmar Pty Ltd having become registered as the proprietor on 10 November 1999.
(d) Although the Minister was named as a defendant, Plaint 45/990 did not inform the Minister of important relevant matters namely:
(i) that the party who had filed the Form 5 was Shadmar itself, or
(ii) that its purpose had been to forestall forfeiture proceedings in 1999; or
(iii) that the contents of the Form 5 were false; or
(iv) that Shadmar as registered proprietor was now seeking forfeiture with a prior right in favour of itself; or
(v) that the partial surrender requirements were due on 1 April 2000; or
(vi) that another party (Hawks) was interested in whether the tenement should be forfeited and whether Shadmar Pty Ltd should be given a prior right to apply for its own ground in those circumstances.
- (e) Graham Hawks, who was known to Shadmar Pty Ltd to have an interest in the matters the subject of the proposed declarations, as his plaint 44/978 was current, was not named as a defendant.
(f) Although Plaint 45/990 sought declarations from the Wardens Court, it failed to inform the Wardens Court of the aforesaid matters which were relevant and material to the consideration of the proposed declarations.
- Urgent transfer of Plaint 45/990 from Leonora to Perth
13.1 On 23 February 2000, Counsel for Shadmar Pty Ltd requested the Mines Department at Leonora that the hearing of Plaint 45/990 (which had been initially listed for mention on 6 April 2000 at Leonora) be urgently transferred to the Wardens Court in Perth for hearing on 25 February 2000.
13.2 In making that request, Counsel for Shadmar Pty Ltd informed the Mines Department at Leonora that the application that the hearing would be on 25 February 2000, would be made 'by consent'.
13.3 By letter dated 23 February 2000, the Mines Department at Leonora forwarded the paperwork for Plaint 45/990 to the Wardens Court at Perth, repeating that it had been told by Counsel for Shadmar Pty Ltd that the application on 25 February 2000 was to be 'by consent'.
13.4 Shadmar Pty Ltd failed to tell the Mines Department or the Wardens Court that the liquidator had sold E36/359 'as is', and had been paid and had transferred the tenement to Shadmar Pty Ltd and had no interest in the matter, and that his consent or otherwise was irrelevant.
13.5 Shadmar Pty Ltd failed to tell the Mines Department or the Wardens Court that the Minister of Mines had not given his consent.
13.6 Shadmar Pty Ltd also failed to inform the Mines Department or the Wardens Court that Plaint 46/990 of Hawks against Shadmar Pty Ltd filed on 22nd February
- 2000, which also related to the Ground and which was also listed for mention on 6 April 2000, should also be transferred to the Wardens Court in Perth for hearing on 25 February 2000, so that Hawks would have the opportunity of being heard.
- Wardens Court hearing on 25 February 2000
14.1 At a 'mention only' hearing in the Wardens Court in Perth on 25 February 2000, before Mr G.N. Calder SM, Shadmar Pty Ltd by its solicitor, Mr Lawton misinformed Warden Calder or inadequately informed him in that:
14.1.1 He said he appeared for Graham Hawks on Plaint 44/978, which was also brought up for mention that day.
14.1.2 He said that he was seeking (on behalf of Mr Hawks) to adjourn Plaint 44/978.
14.1.3 He failed to tell the Warden that Graham Hawks was unaware that Shadmar's Plaint 45/990 was being brought before the Perth Wardens Court that day.
14.1.4 He failed to tell the Warden that Graham Hawks was also unaware that Shadmar Pty Ltd was raising its Plaint 45/990 as a precursor to dealing with its Plaint 9/989, so as to seek forfeiture of E 36/359 and a prior right in favour of Shadmar Pty Ltd to apply for the Ground, and thereby defeat Hawk's Plaint 44/978 and 46/990.
14.1.5 He failed to tell the Warden that the adverse implications to Hawks of those proceedings which were raised by Shadmar Pty Ltd on the 25 February 2000 had not been explained to Graham Hawks.
14.1.6 Shadmar by Mr Lawton failed to tell the Warden that the said Form 5 dated 20 April 1999 had been lodged by Shadmar Pty Ltd, saying only (vaguely) that he thought it was by an agent of Shadmar Pty Ltd (page 6 of transcript).
- 14.1.7 Shadmar Pty Ltd failed to tell the Warden that Shadmar Pty Ltd had lodged the Form 5 because it had wished to avoid forfeiture proceedings in 1999.
14.1.8 Shadmar Pty Ltd failed to tell the Warden that the information which Shadmar Pty Ltd had filed in the Form 5 was untrue.
14.1.9 Shadmar Pty Ltd failed to inform the Warden that the liquidator had sold his interest in E36/359 'as is', and had been paid, and thus had no interest in the matter, and did not constitute an appropriate defendant or a contradictor, and that his consent or otherwise to the proceedings was irrelevant.
14.1.10 Shadmar Pty Ltd failed to tell the Warden that the Minister for Mines had not given his consent.
14.1.11 Shadmar Pty Ltd failed to inform the Warden that Graham Hawks had a strong interest in the matters under discussion and should be heard and would constitute a contradictor in the declaration proceedings.
14.1.12 Shadmar Pty Ltd failed to inform the Warden that the Minister (before deciding whether to be heard as a possible contradictor), should be advised and/or given time to adequately consider that;
(i) Shadmar Pty Ltd had lodged the Form 5; and
(ii) it had lodged the Form 5 in order to avoid forfeiture proceedings; and
(iii) it contained false information; and
(iv) Shadmar was now the registered proprietor; and
(v) Shadmar was now seeking to attack the Form 5; and
- (vi) Shadmar was thereby seeking a prior right to apply for the Ground; and
(vii) the partial surrender provisions of the Act were to be complied with by 1 April 2000.
(viii) Hawks was interested in these matters.
- 14.1.13 Shadmar Pty Ltd failed to inform the Warden that the Warden should consider requesting that the Minister appear as a possible contradictor.
14.1.14 Shadmar Pty Ltd by Mr Lawton informed the Warden that E 36/359 would die on 1st April 2000 (transcript pages 8 & 9), which was false to their knowledge as the true position was merely that partial surrender was due by that day.
- (a) Letter of Lawton Gillon to Mines Department dated 1 December 1999, seeking an extension of time to effect compulsory partial drop-off arrangements;
(b) Letter of Mines Department to Lawton Gillon dated 17 February 2000, refusing the application and stating that the partial surrender must be made by 1 April 2000.
- 14.1.15 Shadmar Pty Ltd by Mr Lawton falsely told the Warden that there was urgency in the matter because the tenement would die on 1 April 2000, and thus requested and induced the Warden to deal with it quickly thus preventing Graham Hawks and/or the Minister from being heard.
Wardens Court hearing on 3 March 2000
15. At a hearing of the Wardens Court at Perth on 3 March 2000, urgently convened at the request of Shadmar Pty Ltd for the purposes of the delivery of a decision following the hearing on 25 February 2000, Shadmar Pty Ltd by Mr Lawton misinformed the Warden or inadequately informed the Warden in that:
(Page 13)
- 15.1 When Warden Calder (transcript page 4) said that one can draw an inference that whoever lodged the Form 5 could have no other objective than to avoid the tenement being placed at risk of forfeiture, Mr Lawton failed to state that to his knowledge Shadmar had lodged the Form 5 and that indeed had been its purpose.
15.2 In asking the Warden to bring up and consider on that day Shadmar Pty Ltd's Plaint 9/989, Shadmar Pty Ltd by Mr Lawton told him (transcript page 7, line 9) that no other party was interested, whereas Graham Hawks was interested by virtue of his Plaints 44/978 and 46/990.
15.3 Shadmar Pty Ltd by Mr Lawton told the Warden (transcript page 8) that the matter was urgent because the tenement would otherwise die on 1st April 2000. This was false as set out above.
15.4 During discussions (transcript pages 8 & 9) about Shadmar Pty Ltd as current registered owner of the Exploration Licence having a right to apply for a Mining Lease, Shadmar Pty Ltd by Mr Lawton failed to inform the Warden that Shadmar Pty Ltd did not want to convert to a Mining Lease because;
(a) this would still be the subject to the rights of Mr Hawks on Plaints 44/978 and 46/990; and
(b) Shadmar Pty Ltd wished to avoid, if possible, applying for a Mining Lease.
15.5 Shadmar Pty Ltd by Mr Lawton told the Warden that if forfeiture was ordered with a prior right in favour of Shadmar Pty Ltd, then Shadmar Pty Ltd would apply for a Mining Lease over the Ground. In fact, Shadmar Pty Ltd and Greg Martin intended that upon forfeiture Greg Martin would quickly apply for an exploration licence over the Ground and only if any other party lodged an
- application would Shadmar Pty Ltd apply for a Mining Lease pursuant to a 14 day prior right.
- 15.6 During discussion (transcript page 9 and 10) about the proposed forfeiture enabling 'bad standing' to be overcome, Shadmar Pty Ltd by Mr Lawton failed to inform the Warden that the main matter of 'bad standing' was the position of Mr Hawks and that forfeiture with a prior right to apply was sought in order to defeat Mr Hawks.
15.7 During mention (transcript page 10) of the gravity of failure of compliance with the expenditure requirements, Shadmar Pty Ltd by Mr Lawton failed to tell the Warden that the interest of Graham Hawks (Plaints 44/978 and 46/990) should be heard and considered in relation to the issue of gravity.
- Letter of 3 March 2000 to the Mines Department
16.1 By letter of 3 March 2000 to the Mines Department, Shadmar Pty Ltd by Lawton Gillon requested that the recommendation of the Warden be dealt with and referred to the Minister urgently as the tenement would die on 1stApril 2000, which was untrue as stated above.
Letter of 21 March to the Mines Department
16.2 By letter of 21 March 2000 to the Mines Department, Shadmar Pty Ltd by Lawton Gillon again requested the Forfeitures Clerk to act urgently, telling him that the tenement would expire on 1 April 2000, which was untrue as stated above.
16.3 On or about 31 March 2000, the Minister gazetted the forfeiture of E 36/369 and in consequence a 14 day prior right to Shadmar to apply for the ground, thereby defeating Hawk's interest.
(Page 15)
- Application of Greg Martin for an Exploration Licence E 36/446
17.1 On 28 March 2000, Mr Greg Martin prepared an application for an Exploration Licence over the Ground, in the knowledge that E 36/359 was to be forfeited by 1 April 2000, notwithstanding that Shadmar Pty Ltd had told the Warden that if forfeiture was recommended and ordered, then Shadmar Pty Ltd would apply for a Mining Lease over the Ground.
17.2 The application of Greg Martin was received by the Mines Department at Leonora on 3 April 2000 and was registered that day as application E 36/446, and was within the 14 day prior right period.
Letter of 4 April to Mines Department
17.3 By letter of 4 April 2000 Lawton Gillon wrote to the Mines Department at Leonora on behalf of Shadmar Pty Ltd and Greg Martin and stated that as E 36/359 had been forfeited by the Minister on 31 March 2000, the plaint of Hawks 46/990 should be dismissed, because there was no longer a tenement for Hawks plaint 46/990 to seek forfeiture of, and if Mr Hawks was not agreeable to that then the matter should now be listed.
Application by Western Resources and Exploration Pty Ltd for an Exploration Licence E 36/448
17.4 Western Resources and Exploration Pty Ltd lodged an application for an exploration licence E 36/448 on 10 April 2000 for the Ground, which was within the 14 day prior right period.
17.5 On 15 May 2000 Shadmar and Greg Martin lodged Objections 132/990 and 133/990 respectively against Application E 36/448. Both objections were signed by Lawton Gillon.
(Page 16)
- Application of Shadmar Pty Ltd for an Exploration Licence E 36/580
18. On learning that Western Resources and Exploration Pty Ltd had lodged an application E 36/448 for the Ground, Shadmar Pty Ltd lodged application M 36/580 for a mining lease on 13 April 2000, which was also within the 14 day prior right period.
Application by Hawks for Prospecting Licence
18A On 10 July 2001, Hawks applied for five prospecting licenses for the Ground being P 36/1465 to 1469 inclusive.
19. Shadmar Pty Ltd and Mr Greg Martin are parties to the conduct referred to in paragraphs 10 to 18.
Particulars
19.1 Ron Martin is a director of Shadmar Pty Ltd. The other director is his wife Marie Martin.
19.2 Greg Martin and Glenn Martin are the sons of Ron Martin and Marie Martin, and Greg Martin is an employee of Shadmar Pty Ltd.
19.3 The initial applicants in the Application to wind up Silver Gecko Pty Ltd in Supreme Court action (COR 126/98) were Mr Ron Martin and his wife Marie Martin.
19.4 Their counsel on that winding up Application was Mr Aristei.
19.5 Upon the first winding up order being recalled on 26 June 1998, Greg Martin and Glenn Martin were then the applicants in a continuation of that winding up Application dated 2 July 1998. Their solicitor was Mr Lawton, and their counsel was Mr Aristei. The documents lodged at the Supreme Court told the Court that Shadmar Pty Ltd was supporting the application.
19.6 Upon that winding up Application being successful on 1 September 1998, Lawton Gillon on behalf of Shadmar
- Pty Ltd lodged Plaint 9/989 against E 36/359 on 4 September 1998.
- 19.7 Shadmar Pty Ltd and Greg Martin both continued to be represented by Lawton Gillon until Lawton Gillon ceased to act in about July 2000, as a result of protest by Mr Hawks.
19.8 Lawton Gillon acted for Shadmar Pty Ltd on Plaint 9/989 dated 4 September 1998, Plaint 45/990 dated 16 February 2000, Application M 36/580 dated 13 April 2000, and Objection 132/990 dated 12 May 2000, and for Greg Martin on Application E36/446 dated 28 March 2000 and Objection 133/990 dated 12 May 2000.
19.9 Since about July 2000, Shadmar Pty Ltd and Greg Martin continue to be represented by the same solicitor on those matters, being Carles Solicitors.
19.10 Shadmar Pty Ltd and Greg Martin continue to be represented by the same counsel on those matters, being Mr Aristei.
19.11 Minair Exploration Pty Ltd acts as the Tenement Manager and agent for both Shadmar Pty Ltd and Greg Martin.
19.12 Minair Exploration Pty Ltd acts for both Shadmar Pty Ltd and Greg Martin on the matters set forth in paragraph 19.8 above.
19.13 In late February 2000, Greg Martin liaised with Mr Lawton as to the progress of the attempt of Shadmar Pty Ltd to obtain forfeiture by 1st April 2000, including by facsimile dated 28 February 2000. With that facsimile Greg Martin forwarded to Mr Lawton a copy of a letter from the Mines Department in Leonora dated 23 February 2000 to Shadmar Pty Ltd, which referred to Graham Hawks Plaint 46/990 and which requested that Shadmar Pty Ltd make the Court aware of the expected requirements with respect to a hearing. Mr Greg Martin requested an update of the proceedings.
(Page 18)
- 19.14 On 15 March 2000, Greg Martin sent a facsimile to Mr Lawton containing a copy of a letter of the Mines Department to Shadmar Pty Ltd dated 8 March 2000 requesting a mineral exploration report for E 36/359 within 30 days and which stated that if it was not provided the licence may be liable for forfeiture.
19.15 The Application for E36/446 by Greg Martin was signed by B J McAuliffe of Minair Exploration Pty Ltd on Greg Martin's behalf on 28 March 2000, which is three days before E36/359 was forfeited by the Mines Department upon the requests of Mr Lawton.
19.16 On 3 April 2000, the Mines Department at Leonora forwarded the paperwork in regard to Greg Martin's application E 36/446 to Mr Lawton.
19.17 Thereafter Shadmar Pty Ltd and Greg Martin and Lawton Gillon together continued to progress the applications for E 36/446 and M 36/580 and to oppose the Plaints 9/989 and 46/990 of Hawks and the application E 36/448 of Western Resources Pty Ltd, as appears from;
19.17.1 fax to the Mines Department of Lawton Gillon of 3 April 2000;
19.17.2 fax of Lawton Gillon to the Mines Department of 4 April 2000;
19.17.3 fax of Minair Exploration Pty Ltd to Lawton Gillon of 9 May 2000;
19.17.4 letter of Lawton Gillon to Mining Registrar of 12 May 2000;
19.17.5 Objection 132/990 lodged by Lawton Gillon dated 12 May 2000; and
19.17.6 Objection 133/990 lodged by Lawton Gillon dated 12 May 2000; and
19.17.7 fax of Mining E-Trade to Lawton Gillon of 22 May 2000.
(Page 19)
- 19.18 MJ Mulcahy & Co is the agent of both Shadmar Pty Ltd and Greg Martin. M J Mulcahy & Co lodged both Applications E 36/446 on behalf of Greg Martin and M36/580 on behalf of Shadmar Pty Ltd and paid the rent and application money for both of them.
19.19 Messrs Sharkey Leen and Co are the accountants and registered office of Shadmar Pty Ltd. Messrs Sharkey Leen & Co provided a certificate of financial ability for Greg Martin in support of his application for E 36/446.
19.20 It is not permissable [sic] for the same solicitors and the same counsel to represent both Greg Martin and Shadmar Pty Ltd in respect of the same matters unless their interests are mutual and there is no conflict between them or unless they are both fully informed about all relevant matters and have given their informed consent thereto.
19.21 It is not premissable [sic] for the same accountant to act for both Greg Martin and Shadmar Pty Ltd on the same matters unless their interests are mutual and there is no conflict between them or unless they are both fully informed about all relevant matters and have given their informed consent thereto.
19.22 It is not premissable [sic] for Minair Exploration Pty Ltd or M J Mulcahy & Co to act as agents for both Greg Martin and Shadmar Pty Ltd on the same matters unless their interests are mutual and there is no conflict between them unless they are both fully informed about all relevant matters and have given their informed consent thereto.
20.1 The conduct referred to in paragraphs 10 to 19 was for the following purposes:
20.1.1 obtaining the Ground for Shadmar Pty Ltd or Mr Greg Martin;
20.1.2 causing the Warden to deal with Shadmar's Plaints 45/990 and 9/989 and without Graham Hawks or the Minister being adequately informed and heard. A number of relevant propositions could otherwise have been argued, including;
- (a) that as Shadmar Pty Ltd had raised the Form 5 in the first place, which contained false information, in order to avoid forfeiture proceedings, it was inappropriate for declarations to be now made on its own request to set aside the Form 5 in order to cause Shadmar to have a prior 14 day right;
(b) that as Silver Gecko Pty Ltd was placed in liquidation on 1 September 1998, Shadmar's Plaint 9/989, and/or its Plaint 45/990, could only properly have been brought with the leave of the Supreme Court.
(c) that Shadmar's proceedings seeking the declarations and seeking forfeiture of its own tenement were unsustainable or inappropriate;
(d) that Shadmars [sic] Plaint 9/989 could no longer proceed, as Shadmar was now the registered proprietor;
(e) that if the declarations were made, then Hawks should succeed on Plaint 46/990, being the first in time to seek forfeiture for non-compliance, (except Shadmar's own plaint);
(f) that if the Warden was inclined to allow Shadmar to proceed on its Plaint 9/989 against itself, then forfeiture was not appropriate on the grounds of lack of gravity or in the circumstance generally. Refer to Sections 98 and 99 of the Act.
(g) that Section 69 of the Mining Act and the general tenor of Sections 98, 99 and 100 and of the Act generally prevented Shadmar or anyone by or on behalf of Shadmar obtaining a prior right following forfeiture of its own tenement.
(Page 21)
- (h) that Hawks should succeed on Plaint 44/978.
(i) that as Shadmar elected not to comply with the drop off requirements (the partial surrender requirements) on the E36/359, it was inappropriate that the Warden, the Wardens Court and the Mines Department participate in a procedure designed to allow it to gain a forfeiture order against itself, and a prior right to apply, for the whole ground.
(j) that the Warden did not have jurisdiction to hear the Plaint 45/990 for declarations and that it would be contrary to law to make the declarations or to thereby recommend forfeiture.
- 20.1.3 causing the Warden to make the declarations, orders, and recommendations which were sought on 25 February and 3 March 2000 without full consideration of relevant matter and without Hawks being heard;
20.1.4 causing the Mines Department and the Minister to forfeit the tenement and gazette it by 1 April 2000 with a prior 14 day right to Shadmar Pty Ltd to apply for a Mining Lease, without consideration of relevant matters and without Hawks being able to make submissions;
20.1.5 enabling Greg Martin to apply for a new Exploration Licence over the Ground, and avoiding the necessity of Shadmar Pty Ltd to apply for a Mining Lease;
20.1.6 enabling Shadmar Pty Ltd (in the event that Hawks or another party might apply for the Ground and threaten or defeat Greg Martins [sic] application) to apply for the Ground under a prior right;
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- 20.1.7 ensuring that Graham Hawks and Western Resources and Exploration Pty Ltd not have appropriate opportunity to learn of and appreciate the relevant circumstances and thus taking action to be heard and to place submissions before the Minister;
20.1.8 preventing any other party (including Hawks & Western Resources and Exploration Pty Ltd) from obtaining the Ground.
- 20.2 The course of conduct referred to in paragraphs 10 to 19 hereof was fraudulent, and constituted misstatement to the Warden, the Wardens Court and the Mines Department and through them to the Minister and/or suppression or concealment of relevant facts from them and from Graham Hawks.
20.3 Further, the conduct of Lawton Gillon referred to in paragraphs 10 to 20.2 hereof, was undertaken in the course of the engagement of Lawton Gillon as solicitors and agents of Shadmar Pty Ltd and of Greg Martin.
20.4 Induced by the said course of conduct, the Warden made the declarations on 3 March 2000, and made the recommendation to the Minister following the hearing of 3 March 2000 that E 36/359 be forfeited.
20.5 Induced by the said course of conduct, the Minister forfeited E 36/359 on 31 March 2000 and thereby caused Shadmar Pty Ltd to have a 14 day prior right to apply for the Ground.
20.6 The said course of conduct has had the result of denying Graham Hawks and the Minister the opportunity to learn of and appreciate the relevant circumstances and to be heard at the hearings on 25 February 2000 and 3 March 2000.
20.7 The said course of conduct has caused the Minister to forfeit E 36/359 on 31 March 2000 with the consequent 14 day prior right without learning of and appreciating the relevant circumstances and without Hawks having
- had the opportunity of to be heard or make submissions to the Minister
- 20.8 The said course of conduct has enabled Greg Martin to apply for E 36/446 on 3 April 2000 and for Shadmar to apply for M 36/580 on 13 April 2000, within the 14 day prior right period, and thereby potentially defeat the interests of Mr Hawks and Western Resources and Exploration Pty Ltd.
20.9 Further, or alternatively, it is against public policy and the public interest and it is unconscionable that Shadmar Pty Ltd or Mr Greg Martin pursue the conduct set forth above or benefit from the conduct set forth above."
27 The plaintiffs contend that certain allegations in the points of claim set out above are demonstrably incorrect. As appears from the transcript of the hearing before the Warden on 3 March 2000, the Warden was informed by the plaintiffs' solicitor that it was now registered as the owner of EL 36/359. The Warden also accepted that the form 5 expenditure report had been filed without the authority of the liquidator of Silver Gecko Pty Ltd, the previous proprietor of the exploration licence.
28 In my view, however, these matters do not detract from the allegations that Shadmar lodged the form 5 report in order to mislead the Mines Department and the public and thereby to forestall forfeiture proceedings being taken against EL 36/359. Nor do these matters detract from the proposition that the Warden was not informed (and hence did not inform the Minister) of the defendants' interest in the exploration licence, nor that they were unaware of the proceedings brought by the plaintiffs who had instructed the same solicitor.
29 Indeed, it is alleged in par 15.2 that on 3 March 2000, the plaintiffs' solicitor asked the Warden to deal with the plaint on that day because there was no other party interested in it. Reference to the transcript demonstrates that the statement was made. The defendants say the statement was untrue.
30 The plaintiffs rely also on the fact that on 25 February and 3 March 2000, the Warden was sitting in open court. That is, he was dealing with the matters administratively. On that basis, the plaintiffs contend that the defendants had no right to be heard in any event.
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31 However, the defendants' complaint is not that they were denied a right to be heard. Rather, it is that the plaintiffs (by their solicitor) embarked on a course of conduct which was calculated to mislead the Warden into believing that no one had any interest in contradicting their claim when they knew that was not so.
32 In my view, the fact that a party has no right to be heard does not provide a licence for informing a tribunal - whether it be judicial or administrative - that the party in question does not wish to be heard or has no interest in the proceedings when that is not the case. That would amount to unconscionable conduct which a court of equity would remedy because equity takes account of any "breach of the sort of obligation which is enforced by a court that from the beginning regarded itself as a court of conscience": Nocton v Lord Ashburton [1914] AC 932 at 954 per Viscount Haldane LC.
33 I consider that the position is a fortiori if the conduct complained of involves a breach of fiduciary duty as is alleged here.
34 I wish to emphasise that I should not be taken as anticipating any judgment which is likely to be made in this litigation. In this application, I have only to decide whether the plaintiffs' position is so strong as to justify the summary dismissal of the defendants' points of claim. In my view, it is not. The allegations made here are serious: and the material on which it is based does, in my view, raise issues which will need to be resolved when the full facts are known. I note that many of the facts pleaded in the points of claim are denied in the points of defence.
35 The plaintiffs have questioned the appropriateness of the relief sought by the defendants in their points of claim. The relief sought includes declarations and orders that the declaration and recommendation made by the Warden on 3 March 2000 be quashed and recalled and that the proceedings be re-heard. The defendants rely on DJL v Central Authority (2000) 170 ALR 659 and Cameron v Cole (1944) 68 CLR 571 as authorities for the proposition that even courts or tribunals which are creatures of statute have the power to re-open perfected orders where there has been a formal error, or fraud or the failure to give a party a hearing.
36 The plaintiffs contend that orders in those terms would be pointless because the exploration licence was in fact extinguished by the order of the Minister on 31 March 2000.
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37 I do not think it necessary to decide at this stage what remedy might be appropriate if the defendants were successful ultimately. That is because O 58 r 29(e) of the Rules of the Supreme Court 1971 (WA) empowers the Court, upon an originating summons "to pronounce such judgment as the nature of the case may require". This rule is consistent with s 24(7) of the Supreme Court Act 1935 (WA).
38 Although the plaintiffs have not said so expressly in their summary judgment application, they rely also on a limitation defence. As pleaded in par 10(iv) of the points of defence, the limitation defence is in the following terms:
"Even if a cause of action sounding in tort, contract implied in law or alternatively an action on the case had accrued against them on or by July 2000 (which is denied), such cause or causes of action are unenforceable by reason of the expiry of the relevant limitation period (contained in section 38(1)(c)(v), (vi) or alternatively (vii) of the Limitations Act 1935, as applied to these proceedings) prior to the commencement of these proceedings on 18 August 2006, and in point of law, any such cause or causes of action pleaded herein should be struck out or alternatively dismissed."
39 There is no doubt that if a Limitation Act applies here, it is the Act of 1935.
40 Section 38(1)(c)(v), (vi) and (vii) of that Act provide for a limitation period of six years from the accrual of the cause of action founded on any simple contract, tort or any other action in the nature of an action on the case.
41 In my view, conduct of the kind here complained of does not fall within any of those categories. Nor, I think, is the remedy sought by the defendants "correspondent to the remedy at Law" so as to result in equity applying the Limitation Act by analogy: see Knox v Gye (1872) LR 5 HL 656 at 674 - 675.
42 In other words, the only basis on which a court of equity would impose a time limitation would be where there had been (for example) laches or some other unacceptable delay by the person seeking relief. No such point is taken against the defendants.
43 If I am wrong in my view that the Limitation Act does not apply, a number of points need to be made. The first is that the statement in
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- par 10(iv) of the points of defence that these proceedings were commenced on 18 August 2006 is erroneous in my view. Although that is the date on which the points of claim were filed, as I have noted above, the points of claim were intended only to provide a vehicle for identifying the issues which had already arisen in the proceedings.
44 The second point is that it was the plaintiffs who initiated these proceedings and themselves put in issue the propriety of their conduct in the Warden's Court. They did so by originating summons issued on 24 February 2004, which was less than six years from the dates of the hearings before the Warden.
45 The originating summons was an "action" as that term is defined in s 3 of the Limitation Act.
46 It is well-settled that the defence to an action cannot be defeated by reliance on any period of limitation. In a different context, Lord Denning MR said in Henriksens Rederi A/S v PHZ Rolimpex [1973] 3 All ER 589 at 596:
"… I think that when a contractor agrees to perform services for a fixed or ascertainable sum and, nevertheless, by his negligence in performing those services, causes loss or damage to the employer, then when the contractor sues for the agreed price, the employer can set up the loss or damage in diminution or extinction of the price. Such setting up is matter of defence, legal or equitable, and is not subject to a time-bar. It is not barred by the statute of limitation, so long as the main action itself is timely."
47 In my view, the same principle applies here. The plaintiffs, by the originating summons, sought declarations that they had not acted improperly. By way of defence, the defendants contended that there had been impropriety. Because the defendants were asserting a positive case by way of defence, I considered it appropriate that they should lodge points of claim which would assist in defining the issues. However, that does not alter the character of the defendants' position.
48 For these reasons, I am not persuaded that there is any merit in the limitation point.
49 I therefore conclude that the defendants' case is sufficiently arguable to result in the dismissal of the application for summary judgment.
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