Hamersley Iron Pty Ltd v The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers Western Australian Branch - [2001] WASC 20

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: HAMERSLEY IRON PTY LTD -v- THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION OF WORKERS - WESTERN AUSTRALIAN BRANCH & ORS [2001] WASC 20

CORAM: PARKER J

HEARD: 10-13 APRIL 2000 & 25-27 JULY 2000

DELIVERED : 30 JANUARY 2001

FILE NO/S: CIV 1817 of 1992

BETWEEN: HAMERSLEY IRON PTY LTD
Plaintiff
AND
THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION OF WORKERS - WESTERN AUSTRALIAN BRANCH
First Defendant
JOHN MERCER
JOHN MOSSENTON
JEFFREY RAVEN
MICHAEL OVERTON
JOCK FERGUSON
Second Defendants
THE AUSTRALIAN WORKERS' UNION, WEST AUSTRALIAN BRANCH, INDUSTRIAL UNION OF WORKERS
Third Defendant
MICHAEL LLEWELLYN
HENRY ROZMIANIEC
IAN PURKISS
MARK COOMBER
Fourth Defendants
THE COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED WORKERS UNION OF AUSTRALIA, ENGINEERING AND ELECTRICAL DIVISION, WA BRANCH
Fifth Defendant
MARTIN DAVIDSON
JAMES MURIE
TERENCE MCINERNEY
MICHAEL ROBERTS
Sixth Defendants
THE CONSTRUCTION, MINING, ENERGY, TIMBERYARDS, SAWMILLS AND WOODWORKERS UNION OF AUSTRALIA - WESTERN AUSTRALIAN BRANCH
Seventh Defendant
DAVID MCINTYRE
NEVILLE WORTLEHOCK
DAVID ABBOTT
Eighth Defendants

Catchwords:

Practice and procedure - Applications to strike out - Want of prosecution - Abuse of process - Turns on own facts

Legislation:

Nil

Result:

Applications dismissed

Representation:

Counsel:

Plaintiff:     Mr M J Buss QC & Mr J R B Ley (April 2000) & Mr J N West QC & Mr J R B Ley (July 2000)
First Defendant             :     No appearance
Second Defendants       :     No appearance
Third Defendant           :     No appearance
Fourth Defendants        :     No appearance
Fifth Defendant            :     Ms C J McLure QC & Mr J Courtis (April 2000) & Mr J Courtis (July 2000)
Sixth Defendants          :     Ms C J McLure QC & Mr J Courtis (April 2000) & Mr J Courtis (July 2000)
Seventh Defendant        :     No appearance
Eighth Defendants        :     No appearance

Solicitors:

Plaintiff:     Freehill Hollingdale & Page
First Defendant             :     No appearance
Second Defendants       :     No appearance
Third Defendant           :     No appearance
Fourth Defendants        :     No appearance
Fifth Defendant            :     Wojtowicz Kelly
Sixth Defendants          :     Wojtowicz Kelly
Seventh Defendant        :     No appearance
Eighth Defendants        :     No appearance

Case(s) referred to in judgment(s):

Bellingham v Dhillon [1973] 1 All ER 20
Birkett v James [1978] AC 297
Brimson v Rocla Concrete Pipes Ltd (1982) 2 NSWLR 937
British Westinghouse Electric & Manufacturing Co Ltd v Underground Electric Railways Co of London Ltd [1912] AC 673
Cassa Commerciale Australia Ltd v Sofia & Ors, unreported; SCt of NSW (Einstein J); BC9806862; 4 July 1998
Charter v Sullivan [1957] 2 QB 117
D A Christie Pty Ltd v Baker [1996] 2 VR 582
De Nier v Beicht [1982] VR 331
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Eyres Reed Ltd & Anor v ICL Australia Pty Ltd, unreported; FCt SCt of WA; Library No 970641B; 26 November 1997
Finlay v Kwik Who Tang [1929] 1 KB 400
Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Grimwade v State of Victoria (1997) 90 A Crim R 526
Hamersley Iron Pty Ltd v Metal and Engineering Workers Union - Western Australia & Ors, unreported, SCt of WA (Parker J); Library No 970184; 24 April 1997
Hamersley Iron Pty Ltd v The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers - Western Australian Branch & Ors [2000] WASC 66
Johnson v Perez (1988) 166 CLR 351
Kargotich v Mustica [1973] WAR 167
Lewandowski v Lovell (1994) 11 WAR 124
Lewandowski v Lovell, unreported; SCt of WA (Steytler J); Library No 960289; 27 May 1996
London & South of England Building Society v Stone [1983] 3 All ER 105
Metal Fabrications (Vic) Pty Ltd v Kelcey [1986] VR 507
Moevao v Department of Labour [1980] 1 NZLR 464
Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd (1991) 33 FCR 1
Nominal Defendant v Manning [2000] NSWCA 80
Re Jokai Tea Holdings Ltd [1992] 1 WLR 1196
The Australasian Electrical Electronics Foundry & Engineering Union Western Australian Branch & Ors v Hamersley Iron Pty Ltd, unreported; FCt SCt of WA; Library No 980156S; 6 April 1998
Thompson Ltd (WL) v Robinson (Gunmakers) Ltd [1955] Ch 177
Ulowski v Miller [1968] SASR 277
Walton v Gardiner (1993) 177 CLR 378
Wenkart v Pitman (1998) 46 NSWLR 502
Williams v Spautz (1992) 174 CLR 509

Case(s) also cited:

AEEFEU & Ors v Hamersley Iron, unreported; SCt of WA; Library No 980546
AEEFEU v Hamersley Iron Pty Ltd (1998) 19 WAR 145
AEEFEU v Hamersley Iron, unreported; FCt SCt of WA; Library No 980156; 6 April 1998
Alexander v Cambridge Credit Corporation Ltd [1987] 9 NSWLR 310
Bishopsgate Insurance Australia Ltd (in liq) v Deloitte Haskins & Sells, unreported; SCt of VIC - Appeal Division; 9 September 1994
BPTC Ltd (in liq) Application of J W Murphy and P B Allen Re G J Kelly, unreported; BC9504326; 16 March 1995
Brimaud v Honeysett Instant Print Pty Ltd, unreported; SCt of NSW (McLelland J); BC8801491; 19 September 1988
Brunswick NL v Bloosomtree Pty Ltd (1992) 7 WAR 226
Chanel Ltd v FW Woolworth & Co Ltd & Ors [1981] 1 All ER 745
Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd No (5) [1997] 18 WAR 334
Coe v Commonwealth (1993) 118 ALR 193
Commonwealth Bank of Australia v Quade (1991) 178 CLR 134
Flower & Hart (a firm) v White Industries (Qld) Pty Ltd (1999) 163 ALR 744
Hamersley Iron Pty Ltd v MEWU & Ors [1999] WASCA 175
Hamersley Iron Pty Ltd v MEWU [2000] WASC 66
Hughes v Gales (1995) 14 WAR 434
Jones v Dunkel (1959) 101 CLR 298
Krakowski v Trenorth Limited (1996) A Tort Rep 81-401
McKechnie v Campbell (1996) 17 WAR 62
Nationwide News Pty Ltd v Wiese [1990] 4 WAR 263
Nexus Minerals NL & Ors v Flint, unreported; FCt SCt of WA; Library No 970394A; 8 August 1997
R v Carver, unreported; NSW Court of Criminal Appeal 135; BC9903081; 11 June 1999
Read v Price [1909] 2 KB 724
Rennie v Commonwealth of Australia (1995) 61 FCR 351
Rozenbes v Kronhill (1956) 95 CLR 407
Stephenson v Garnett [1898] 1 QB 677
Watts v Rake [1960] 108 CLR 158

PARKER J: The fifth and sixth defendants ("D5 & 6") once again seek the striking out or dismissal of this action for want of prosecution and, by a separate application, they also seek to have the action permanently stayed or struck out as an abuse of process.
These two applications were heard together in April 2000. Decision having been reserved, D5 & 6 then applied in June 2000 to arrest judgment on, and for leave to reopen the argument with respect to, the two primary applications. Argument in respect of this further application was heard over three days at the end of July and decision in respect of this was also reserved.
In July 2000 submissions were also heard in respect of five miscellaneous applications of D5 & 6, four concerning pleadings and the fifth discovery.
This decision is in respect of all these applications.
This action was commenced on 29 June 1992. By the statement of claim, as amended in October 1992, the plaintiff primarily claimed damages for a variety or tortious and statutory wrongs which it alleged against the defendants who were variously unions and officers and members of those unions. The claimed wrongs related to industrial action at various mining and associated operations of the plaintiff in the northwest of the State, especially at Tom Price, Paraburdoo and Dampier, in or about June 1992. A variety of declaratory and injunctive relief was also sought.
The action is proceeding in the long causes list and I have had responsibility for its oversight for some years. The process of readying this extensive and complex action for trial has been extremely slow and has been characterised by a great deal of interlocutory skirmishing which has, at times, involved appeals from interlocutory decisions. In some part the slow progress of the action towards trial can be attributed to the extent and complexity of the issues and, for example, to the amount of documentation which has been the subject of discovery. There has also been much delay as a consequence of a number of changes to the legal advisers representing various of the defendants. There are, however, other factors, a number of which need to be considered in the course of these reasons.
D5 & 6 have previously sought to have this action struck out or dismissed for want of prosecution and permanently stayed or struck out as an abuse of process. The earlier attempt failed; Hamersley Iron Pty Ltd v Metal and Engineering Workers Union - Western Australia & Ors, unreported, SCt of WA (Parker J); Library No 970184; 24 April 1997 (the "first strike out decision") and on appeal The Australasian Electrical Electronics Foundry & Engineering Union Western Australian Branch & Ors v Hamersley Iron Pty Ltd, unreported; FCt SCt of WA; Library No 980156S; 6 April 1998 by which leave to adduce fresh evidence on appeal was refused (the "fresh evidence on appeal decision") and [1999] WASCA 175 delivered 14 September 1999 (the "first strike out appeal").
The parties generally accept the review of the relevant principles and authorities, with respect to both want of prosecution and abuse of process, undertaken in the first strike out decision, the fresh evidence on appeal decision and the first strike out appeal and I will not therefore make any extensive analysis of the authorities.
Shortly stated, there are no absolute or inflexible rules governing the discretion to strike out; Lewandowski v Lovell (1994) 11 WAR 124 at 128 and 133. Nevertheless, it is necessary for D5 & 6 to show either that:
(a)The delay of the plaintiff in preparing and bringing the action to trial has been intentional and contumelious, eg conduct amounting to an abuse of the process of the court; or
(b)(i) there has been an inordinate or inexcusable delay on the part of the plaintiff or its legal advisers, and
(ii)such delay has given rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause serious prejudice to the defendants;
see Lewandowski at 133, Birkett v James [1978] AC 297 at 318. In these matters D5 & 6 carry the onus; Lewandowski at 134.
With regard to abuse of process and the first limb of that test, contumelious conduct normally will involve an abuse of process or otherwise intentional delay of an inexcusable kind which is in effect scornful or insolent of the court and its processes, or delay involving conduct calculated to frustrate the action being brought to trial; see De Nier v Beicht [1982] VR 331 at 337 - 338 and Re Jokai Tea Holdings Ltd [1992] 1 WLR 1196 at 1206 - 1207. A court will only be satisfied that proceedings constitute an abuse of process in exceptional or extreme cases; Walton v Gardiner (1993) 177 CLR 378 at 392, Lewandowski at 139. If proceedings are brought for an improper purpose this may constitute an abuse of process, but only where the sole or dominant purpose is not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they are not designed or some collateral advantage beyond what the law offers; Williams v Spautz (1992) 174 CLR 509 at 522 and 529. As was said by Harper J in Grimwade v State of Victoria (1997) 90 A Crim R 526 at 536 the Court must be careful to ensure that its processes are used to secure the ends of justice and not as an instrument of oppression or extortion.
The second limb of the test involves striking a balance between the opposing parties and requires the court to decide whether or not, on balance, justice demands that the action be dismissed; Lewandowski at 128. Each case necessarily depends, therefore, on its own facts, but of importance are:
(a)The length of the delay, any explanation for it, the hardship to the plaintiff from dismissal, the prejudice to the defendants if it is not dismissed, and the conduct of the defendants in the litigation; Ulowski v Miller [1968] SASR 277 at 283;
(b)While, the non-expiry of the limitation period is generally speaking a strongly persuasive reason for not dismissing an action, at least in the absence of contumelious default by the plaintiff, see Birkett at 322; in the present case the limitation period has expired;
(c)A plaintiff that issues its writ promptly, and then delays, generally should not be in a worse position than a plaintiff who delays until the end of the limitation period; Ulowski at 282; and
(d)Any prejudice to the defendants must be causally related to the delay by the plaintiff; Lewandowski at 135 and 137.
In addition to these traditional formulations it is necessary also to bear in mind the wider views accepted as correct by Mason CJ, Deane and Dawson JJ in Walton v Gardiner (supra) at 392-3 that in addition to such formulations a Supreme Court has jurisdiction to order a stay of proceedings on abuse of process grounds "if it is satisfied that the continuation of the proceedings would be 'so unfairly and unjustifiably oppressive' as to constitute an abuse of process, albeit that the court would only be so satisfied in an exceptional or extreme case". As their Honours said at 392-393:
The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice and unfairness."
Their Honours went on at 394 to approve a passage from Moevao v Department of Labour [1980] 1 NZLR 464 at 481 that pointed up the potential relevance of the need, by ensuring that there is fairness in the use of its process by parties and the use of its proceedings, to protect the ability of the Court itself to function as a Court of law in the future. This need which may require consideration of the public interest in the maintenance of public confidence in the administration of justice which confidence may be eroded by a concern that the Court's processes may lend themselves to oppression and injustice.
There is also to be recognised and weighed the public interest in the expeditious conduct of litigation. I also repeat what was said by Steytler J in Lewandowski v Lovell, unreported; SCt of WA (Steytler J); Library No 960289; 27 May 1996 at 25.
"It is also worth repeating, in this last respect, the comments of the Victorian Full Court in Bishopsgate Insurance Australia Ltd v Deloitte Haskins & Sells, unreported; FCt SCt of Vic; 9 September 1999 per Brooking, Ormiston and Tadgell JJ at 24 to the effect that, although there are many cases in which the necessity to establish prejudice has been stated as a condition precedent to the exercise of the power to dismiss for want of prosecution on the basis of the delay, it is not correct to say that the defendant is obliged to allege that that prejudice upon affidavit as opposed to asking the court to infer from all the circumstances of the case that prejudice has been or will be likely to be suffered."
I also approach the issue of delay in bringing this action to trial on the basis of an overview of the progress of the whole action which involves over twenty defendants, rather than considering in isolation the progress of the action solely from the viewpoints of D5 & 6. There has been no application for a separate trial of the action by D5 & 6.
In part D5 & 6 seek to rely not only on events and matters which have come to their knowledge since the dismissal of the first strike out decision in April 1997, but also on the combined or overall effect of all the evidence now adduced including that which was considered at first instance and on appeal in respect of the first strike out application and in the fresh evidence on appeal decision. This is done on the basis that, it is submitted, in some respects at least the further evidence now available throws new light on the evidence previously considered or adds additional force to the previous evidence with the consequence that the total evidence is now sufficient to establish what previously could not be sustained on the evidence then available.
The plaintiff objects that this involves an abuse of process as D5 & 6 are seeking to re-ventilate issues which were determined and findings of fact which were made in the first strike out decision after a full interlocutory hearing. They rely in particular on D A Christie Pty Ltd v Baker [1996] 2 VR 582 at 597-9 and 603-6.
There is, of course, no question of res judicata or issue estoppel raised in this respect. Neither doctrine is applicable as there has been no final determination of a cause of action or issue. In D A Christie Pty Ltd v Baker at 604, however, Hayne JA (as he then was) offered the view that where an applicant for an extension of time failed in one application, but then at once instituted a second application relying on precisely the same material, the conclusion was open that the second proceeding was vexatious as, on its face, the second application was no more than an attempt to re-litigate a matter that had already been determined once between the parties. In that case, however, the applicant had filed further material intended to deal with a gap in the evidence that had been before the Court on the hearing of the first application. Nevertheless, his Honour was of the view that the second application was an abuse of process because:
" … the additional material which it was sought to put forward was all material which was available to Baker at the time of the first application. No explanation was proffered for why the material was not put forward at the time of the first application and for present purposes I assume that it was omitted through oversight or neglect." (see 604)
I note also the decision of the New South Wales Court of Appeal in Nominal Defendant v Manning [2000] NSWCA 80 in which the majority came to a different view from that which commended itself to Hayne JA.
In any event in my view the present case is to be distinguished from the situation being considered by Hayne JA. In this case D5 & 6 seek to establish that by its ongoing pursuit of this action the plaintiff's conduct constitutes an abuse of process and also reveals delay of a nature and extent which would warrant it being struck out for want of prosecution. It is more than two years since the first application was determined and much has happened in the action in the intervening time. There is now a great deal of additional evidence available and placed before me which in substantial part was evidence not reasonably available to D5 & 6 at the time of the first application or even at the time of the fresh evidence on appeal decision. Further, the process of particularisation of the plaintiff's claim, especially as to damages, in the intervening period has brought under attention some new issues that bear upon the present application. It is not a fair view, it seems to me, to contend that D5 & 6 are, for a second time, bringing an application relying on the same material, or that they now merely seek to fill gaps which were identified in the hearing of their original application. While they are seeking to place some continued reliance on evidence advanced on the first application and also on evidence which they sought to advance on appeal, the evidence previously considered is now significantly supplemented by additional evidence which generally speaking was not available to them at the time of the earlier application or the appeal. The nature of some of the additional evidence now available is such that it is capable of throwing a different light on, or adding additional weight to, the evidence previously considered. That is not so in every case, but there is adequate reason in some respects to re-evaluate the evidence previously considered in light of additional and fresh evidence now offered in support of the present applications. In the circumstances I am not persuaded there is an element of abuse of process in the way the plaintiff seeks to mount these present applications.

In my view, if D5 & 6 are now able to establish, on the totality of the evidence now available, that there has been either or both undue delay or an abuse of process on the part of the plaintiff in bringing or maintaining this action it is in interests of justice that their case should be fully considered on its merits. I propose, therefore, where relevant, to have regard not only to the further evidence now available but also to the evidence considered on the first application and the evidence which D5 & 6 sought to adduce on appeal from the first application.
The plaintiff further submits that evidence, which the plaintiff sought leave to adduce on appeal from the first strike out decision and which was rejected by the Full Court in the fresh evidence on appeal decision on the ground that it was irrelevant, ought not now be considered. Special considerations attach to an application to adduce fresh evidence on an appeal from an interlocutory decision. The Full Court followed the approach of asking whether there was at least "a reasonable possibility" that the decision at first instance would have been different if the fresh evidence had been presented at the first hearing. The ultimate issues were whether the action constituted an abuse of process or should be dismissed for want of prosecution. In my view, a conclusion that the fresh evidence which D5 & 6 then sought to adduce on appeal would not have given rise to a real possibility of a different result on those issues at that time does not necessarily determine that the evidence can have no present relevance. This is a fresh application and further evidence and additional circumstances are relied on. However, in the absence of some changed circumstance or further evidence which throws a different light on any evidence which the Full Court determined to be irrelevant to the issues in that appeal it will, of course, remain irrelevant to the same or similar issues for present purposes.
It is not practical to treat in detail in these reasons all the evidence that is now before me. On the hearing of the two primary applications in April 2000 the parties, between them, relied on over 90 affidavits, several of which extended well over 100 pages each and a few over 300 pages. There were further affidavits in support of the application to re-open which was heard in July. For the most part I will limit the treatment of factual matters to recording the more important findings I have made from my consideration of the evidence relating to the various issues.

Progress of the Action - Delay

As indicated earlier the process of readying this action for trial has been extremely slow. The very many interlocutory applications and, at times, the appeals from interlocutory decisions, have often had the effect of diverting the resources and attention of the parties, and the Court, from the progress of the action. An example, is provided by the first strike out application which was commenced in mid-June 1996, determined by April 1997 and from which an appeal was dismissed by the Full Court in September 1999.
There are now over 20 defendants but generally they may be regarded in four groups, of which D5 & 6 are one. Throughout the conduct of the action there have been changes of solicitor for a number of the defendants including D5 & 6. These changes have clearly set back the overall progress toward trial by a significant degree. For some months now D7 & 8 have been unrepresented so that it can be anticipated there will be further disruption to the existing timetable by which the action was to be readied for trial by mid 2001. That timetable may also be disrupted by the outcome of an appeal and cross appeals now pending to the Full Court from a decision given in March 2000 with respect to amendments to the statement of claim.
The progress of the action to the end of 1996 was reviewed in the first strike out decision. I will not canvas again in these reasons the full findings then made although, where appropriate, I will have regard to them. It is sufficient to note of those findings that while there was a period of two to three months in 1994 when the plaintiff's solicitors had failed to give adequate attention to the preparation of its case and a period of six to seven months in 1995 when the plaintiff's solicitors made little progress in the action, neither the plaintiff nor its solicitors had intentionally delayed and there was no evidence of contumelious conduct. The delays for which they were responsible were not inordinate or inexcusable and were not causally related to any loss or diminution of memory of material events then being experienced by D5 & 6 and their witnesses. The plaintiff's conduct of the action to that time, despite the identified delays, was somewhat in contrast to the general pattern of non-cooperative behaviour by many of the defendants which had impeded the progress of the preparation of the action for trial to that time.
In Hamersley Iron Pty Ltd v The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers - Western Australian Branch & Ors [2000] WASC 66 I had occasion to briefly review the further progress of the action since the beginning of 1997. I noted there had been further delay, in particular on the part of some but not all defendants, and that steps such as springing orders had been necessary to ensure compliance with interlocutory orders. While the plaintiff had been less than prompt in dealing with some matters, overall its conduct of the action since January 1997 until March 2000 had not involved any significant delay in the general progress of the action toward trial. That remains my general appreciation of the progress of the action and the conduct of the plaintiff and the defendants, having reviewed that progress in greater detail and in light of the evidence and submissions advanced on these applications. It is necessary, however, to mention some particular matters by way of limited qualification of that general appreciation. With respect to the plaintiff's conduct of the action I have in mind in particular the substantial further amendments to its statement of claim which it originally proposed in July 1999 and which were allowed in part in March 2000 and the prolonged and ongoing process of discovery.
The process of considering the amendments to the statement of claim proposed by the plaintiff and determining the extent to which they should be allowed, and of course the pending consequential appellate proceedings, together with the need to re-visit responsive pleadings and perhaps consequential matters such as discovery and interrogatories has introduced, and will undoubtedly introduce further, delay in the progress of the action to trial. The amendments of the plaintiff were many and varied and the need for them had been progressively apparent to the plaintiff and its legal advisers since 1994. Rather than seek to amend progressively, the plaintiff chose to make one consolidated application to amend. This it did in July 1999. By then it was able to have regard to developments in the pleadings, discovery and it had undertaken an extensive review of the issues and its available evidence. It had for some time before then indicated that it was contemplating amendments to its statement of claim but it is fair to observe that the nature and extent of the amendments which it proposed in July 1999 had not been previously appreciated from the indications given to that time by the plaintiff. Between 1994 and July 1999 a number of interlocutory applications to which aspects of the statement of claim were material were dealt with on the basis of the statement of claim as it then was. In some respects these may now require to be considered further and some aspects of the preparation for trial by the respective defendants may now prove to have been unnecessary or misdirected because of the amendments which have now been allowed to the statement of claim.
Of course, these and other matters had to be weighed when determining whether the amendments should be allowed. Indeed the effects of delay weighed against allowing some of the amendments proposed by the plaintiff.
It is not shown to be the case, however, in my appreciation of this matter, that the course taken by the plaintiff with respect to the amendment of its statement of claim was done so as to delay the progress of action towards trial or to frustrate the defendants in their preparation. The amendments proposed were generally speaking apparently genuinely based. They have been detailed in [2000] WASC 66. In this particular respect I will deal more specifically later in these reasons with the question of the claim for damages and the particularisation of that claim. The course chosen by the plaintiff of making one consolidated application to amend had both advantages and disadvantages for the orderly conduct of the action. While criticism may be made of the decision to follow that course, and its effects cannot be overlooked, where injustice would flow from an amendment, because of the delay inherent in that course, that has weighed against allowing the amendment. Orders for costs thrown away will also serve to alleviate some of the consequences. Most materially, I am not able to conclude that any delay which has and can be expected to flow from the procedure followed and the nature of the amendments was contumelious or caused for delay's sake. There is no sufficient reason, in my view, to perceive an abuse of process in what occurred. Nor may it properly be concluded that any such delay was, or can be expected to be, inordinate or inexcusable in the relevant sense. Any of the presently identified potential consequences for the fair trial of the action have been weighed and reflected, so far as that is reasonably possible, in the decisions whether or not to allow various proposed amendments. Anticipating in part, matters considered later in these reasons, and despite the strenuous submissions of D5 & 6 to the contrary, it has not been demonstrated that by virtue of the amendments it is not possible for D5 & 6 to have a fair trial, or that the delay is likely to seriously prejudice D5 & 6.
With respect to discovery, the process on the part of both the plaintiff and D5 & 6, as well as other defendants, has been prolonged and attended by a regrettable amount of interlocutory litigation. I have been persuaded that despite very considerable efforts to locate, marshal and discover an enormous amount of material, in some detailed respects the plaintiff had failed adequately to make discovery and orders for further and better discovery have been necessary. D5 & 6 seek to categorise some or all of the plaintiff's inadequacy of discovery as deliberate and designed to avoid disclosing serious or fatal flaws in its case, or to hamper the defendants in the preparation of their case, or simply to further delay the progress of the action. The course of discovery by the plaintiff in some respects has had the consequence of not disclosing, at least for a time, some potential difficulties in its case and may have had the effect overall of hampering in some respects D5 & 6 in the preparation of their case. It is a quite different proposition, however, that the failure of the plaintiff to make earlier or full discovery was designed to achieve those consequences. The size of the plaintiff's task of discovery has been quite enormous. It has become apparent that the plaintiff's solicitors have had to turn to many possible sources of documents within the plaintiff's extremely large commercial organisation in an effort to identify and locate documents of possible relevance. While it is regrettable, it is not surprising, in such a situation, that those holding these documents might fail to recognise their potential relevance or even fail to identify their presence among the records and papers they hold. In addition, a very large quantity of material of possible relevance was archived and in some respects relevant documents have only been located after prolonged manual search because the archival system did not allow an adequate means of reference or identification for the purposes of this action.
Later in these reasons I will give more detail consideration to submissions of D5 & 6 about the main claim of the plaintiff for damages. In this respect it is submitted by D5 & 6 that the plaintiff deliberately delayed in its discovery, and also in its amendment of the statement of claim, for a number of years from 1994, so as to avoid revealing the true Long Term Supply Contracts ("LTSC's") on which it relied because, it is submitted, when these were identified it was revealed that the plaintiff in truth does not have the claim for substantial damages which it has purported to pursue from the inception of the action in 1992. As will be detailed later, in some respects, although not the majority, the LTSC's specifically identified in the statement of claim have been the subject of amendment. In fact, however, although not then specifically pleaded in the statement of claim, those now relied on in most cases were discovered some years ago, mostly in 1994. Although they had been discovered inspection of the discovered LTSC's was not pursued by D5 & 6 until mid-1999. It is only after D5 & 6 troubled to inspect the long discovered LTSC's that D5 & 6 came to see a potential relevance in their terms which is now relied on heavily in these applications. The long delay in D5 & 6 appreciating this potential significance is attributable to the failure of D5 & 6 to inspect the discovered documents, not to the plaintiff's failure to discover. It should be added that while the amendments to the statement of claim have identified some different contracts, the new ones thus identified are not materially different in their relevant terms from those which had been pleaded from the inception of the action, so that an earlier inspection of the discovered LTSC's by D5 & 6 would have enabled them to identify the contractual provisions now relied upon by D5 & 6.
I'm also very conscious that some orders for specific discovery have been made against the plaintiff in circumstances where the failure, at least until that time, did not appear to me at the time to be adequately explained by the plaintiff. Without traversing that ground again, which has been the subject of particular decisions, I am not persuaded by the number and the nature of these cases, or by the other problems with the plaintiff's discovery, that D5 & 6 have demonstrated that the discovery process by the plaintiff reveals any deliberate delay on the part of the plaintiff let alone contumelious delay or delay designed to frustrate the action being brought to trial in timely manner or at all. Nor is it demonstrated that there has been delay designed to hamper D5 & 6 in the preparation of their case. In particular, I am not persuaded that the plaintiff's conduct in the discovery process reveals a deliberate strategy of non-disclosure to prevent or impede the exposure of a fatal flaw or potential serious deficiency in its claim for damages or otherwise in its case. These observations anticipate much that will be said later in these reasons. These findings are made although I remain by no means entirely satisfied at all aspects of the discovery of the plaintiff in the action.
Thus the conduct of the action by the plaintiff to date, and in particular since January 1997, including the major amendment of its statement of claim and the process of discovery does not, in my view, reveal significant or ongoing or purposeful delay on the part of the plaintiff. I am not persuaded on the totality of the evidence that there has been either intentional or contumelious delay or delay which is properly to be viewed as inordinate or inexcusable in the relevant senses. For completeness, anticipating some matters dealt with more specifically later in these reasons, I would indicate that it has not been demonstrated that there is a substantial risk that it is not possible to have a fair trial of the issues presently alive in this action or that there is likely to be serious prejudice to D5 & 6 by virtue of any delay to date which is attributable to the plaintiff's conduct of the action.
While I have dealt with this issue of delay at an early stage of these reasons I should make it clear that I have assessed the issue of delay in the context of all the factual material that D5 & 6 now advance and that I have had regard both to their submissions with respect to want of prosecution and abuse of process, so far as the latter are relevant to delay, in reaching the findings which I have expressed.

Plaintiff's purpose - Factual difficulties

At the heart of the case advanced for D5 & 6, and relevant in their submission both to want of prosecution and abuse of process, is the rather fundamental contention that the predominant and improper purpose of the plaintiff in commencing and maintaining this action was and is to eliminate, or alternatively "marginalise", the role and influence of the trade unions who are the first, third, fifth and seventh defendants in the conduct of the plaintiff's business affairs. In this submission, by "marginalise", D5 & 6 probably mean "minimalise" but I will continue to refer to the language of the submission in these reasons. In support of this fundamental proposition and general theme D5 & 6 seek to draw together a number of strands.
Before attempting some review of these strands it must be noted that this is an interlocutory application. The evidence relied on by D5 & 6 is before me on affidavit. Many of these affidavits were filed in the action in support of some other interlocutory application and aspects of them are now pointed to for this different purpose. Some of the affidavits are sworn on the basis of information and belief. Much that is relied on by D5 & 6 is denied, or contradicted, or is the subject of varying accounts in the affidavits, in whole or part, or is the subject of explanation on the part of the plaintiff. To a significant degree, D5 & 6 also seek to have me draw inferences from facts which they submit I should find to be established by these affidavits, even though competing inferences are well open. It will be apparent, therefore, that D5 & 6 have set themselves a difficult factual task in these circumstances. Insofar as they rely on contentious factual matters it will be difficult, if not impossible, for the factual findings necessary for the success of their applications to be made at this interlocutory stage of the action. In these respects the position is materially different from that which would apply had there been a full trial of the relevant factual issues so that final factual findings could be made. In such circumstances factual findings could be made in respect of issues which, at present, must remain undetermined because of the nature of the evidence presently available and its limitations for fact finding purposes. This is a theme to which I will return often in these reasons.

Long term supply contracts - Claim for damages

The primary matter on which D5 & 6 rely in respect of both want of prosecution and abuse of process is the contention that, at least in major respects if not entirely, the plaintiff's claim for substantial damages is misleading and unsustainable - that it is a sham. D5 & 6 submit that the plaintiff has in truth suffered no loss as a consequence of the strike in respect of its sales of iron ore pursuant to the LTSC's on which it relies in its pleaded case. It is this loss which is the primary claim of the plaintiff for damages and it was this loss on which the plaintiff in part relied when it sought and obtained an interim interlocutory injunction at the beginning of July 1992. In 1992 the statement of claim of the plaintiff identified a number of specific LTSC's together with "various other contracts" which were not specified. It was the plaintiff's pleaded case that by virtue of the strike in June 1992 it was unable to supply iron ore as required by these LTSC's and it was thereby "in breach" of the LTSC's, cf par 37C(e) of the statement of claim as amended in October 1992. The plaintiff's primary claim was for damages, the damages being particularised to identify the tonnes of iron ore it had been "prevented from supplying" and the lost opportunity to sell that tonnage of iron ore and, further or in the alternative, the loss of the use of the money which the plaintiff would otherwise have received from the sale of that iron ore.

Paragraph 37C(e) originally referred to the plaintiff having breached its obligations under the LTSC's. However, the particulars of loss and damage suffered pleaded in par 38 referred to the plaintiff having been "prevented from supplying" and of the plaintiff's "failure to deliver" the iron ore. By the amendment allowed on 17 March 2000 the reference in par 37C(e) to the plaintiff having "breached" its obligations under the LTSC's became "was unable to comply with" those obligations.
The plaintiff's particulars of loss and damage had been revised in February 1997 when it first particularised its liquidated damages. These particulars of loss and damage were further revised in July 1999 although, save for a proposed alternative claim, in substance the claims remained as they had been in February 1997. The primary liquidated damages claim as particularised identified the revenue from sales of iron ore lost as a result of the strike, claimed as US $39,702,128 plus interest. This, together with a relatively small demurrage claim, less the amount of money it did not expend during the strike period such as royalties, wages, production costs, etc which were put at Australian $7,363,126, was the plaintiff's claim. After conversion from US dollars to Australian dollars, at July 1999 rates, the claim so calculated approximated Australian $41.5 million. At today's exchange rates the claim would be much higher.
In July 1999 for the first time the plaintiff sought, but was refused, leave to introduce an alternative claim for liquidated damages representing the amount by which its gross profits were reduced as the result of the fixed production costs it had continued to incur during the strike from which it claimed it had received no, or no adequate, return. This proposed alternative claim was quantified at some Australian $5.9 million.
Until July 1999 the only claim presented was that the plaintiff had breached its obligations under the long term supply contracts, although from the outset, the particulars of loss and damage referred to the plaintiff being prevented from supplying and failing to deliver. Despite the amendments in March 2000 to the statement of claim which changed the specification of some of the LTSC's, most of the LTSC's now relied on had been discovered in 1994 and were available to be inspected since then. Those not then specifically identified are, in their relevant provisions, in essentially the same form as those then discovered. It was not until the second half of 1999 that D5 & 6 chose to inspect the discovered contracts. Since doing so the interest of D5 & 6 has been excited by the force majeure provisions of these contracts which, typically, appear to apply in the case of industrial action. The effect is that where, because of industrial action, the plaintiff fails to supply iron ore pursuant to the contract it is not in breach of its contractual obligations if it gives notice to the purchasers under the LTSC's of the force majeure event, ie the industrial action. Further, the apparent effect of the provisions is that the plaintiff may also make a formal claim under the relevant LTSC in respect of the force majeure event. Where this is done the purchaser can be obliged to take delayed delivery of the iron ore not able to be delivered on time because of industrial action. The delayed delivery is to occur at a time or times to be agreed between the plaintiff and the purchaser, failing agreement at the end of the LTSC. I have expressed myself as to the apparent effect of these provisions because, in some respects, their operation is the subject of dispute between the parties, and indeed differing or alternative submissions by the plaintiff, and it would be inappropriate to attempt to reach any final view about them at this interlocutory stage.
It is contended that pursuant to these provisions the plaintiff invoked the force majeure provisions so that it was never in breach of its obligations under the contract and, as the purchasers were required to accept delayed delivery of iron ore not delivered because of the strike, in truth the plaintiff had not suffered any loss of sales of iron ore. On this basis D5 & 6 contend the whole claim is a sham and has been since its inception.
Further, it is contended that the reason for the plaintiff pursuing the sham claim was the covert plan of the plaintiff to "break" or reduce the role and influence of the defendant unions in its relevant workforce - to "marginalise" the unions - with the consequence that all its employees would become non-award employees. It is contended that the making of a sham claim of such enormous size was aimed at distracting the resources and attention of the union defendants from their normal industrial role on behalf of the plaintiff's workforce and, effectively, to cripple them in their ability to fulfil that role. To this end, it is further submitted that, because the longer the action could be drawn out the more successful it would be in distracting and incapacitating the defendant unions, there has been a deliberate tactic of delay on the part of the plaintiff in its conduct of the action. As has been indicated, it is further contended that the plaintiff has delayed and avoided its obligations in the action, particularly with respect to amending its statement of claim and the particulars of its loss and damage as well as its obligations regarding discovery, so that the sham claim might not be discovered or at least its discovery delayed as long as possible. So framed, the allegation against the plaintiff is grave indeed.
This is not a new allegation in these proceedings. It is essentially the same as that advanced and rejected in the first strike out application. It was also specifically raised in the first minute of the proposed re-amended defence of D5 & 6 although it has not been included in the many later minutes for the proposed amendment of that pleading. D5 & 6 submit that, especially by virtue of more complete discovery, there is now further and better evidence to support this allegation.
D5 & 6 submit the plaintiff has sought to prevent D5 & 6 from discovering the truth of its contractual relations under the LTSC's so that the alleged sham claim would not be revealed and the action could be maintained by the plaintiff as long as possible. In support of this, first, it is contended the wrong contracts were pleaded originally in 1992 and the pleading was not amended in this respect until 2000. As has been indicated while there have been some amendments to the particular identification of the LTSC's relied on by the plaintiff in par 2A of its statement of claim, and these have involved the deletion of some contracts, the substitution of some different contracts and the more full and accurate description of others, in the main part the plaintiff has not changed the LTSC's on which it relies. Further, the LTSC's substituted or more accurately described were, for the most part at least, discovered in June 1994 on the basis that the original pleading also relied on unspecified contracts and the substituted or better described contracts were discovered as being those which were in fact relied on although then unspecified in the statement of claim.
For relevant purposes, while there are differences in the form and the provisions of the contracts for different purchasers and markets with which the plaintiff trades, the contracts for the Japanese and Korean markets are substantially the same. No materially different forms of contract for Japanese and Korean purchasers have been discovered since June 1994. The issue of force majeure was only seized on by D5 & 6 when, eventually, they inspected the long discovered contracts. This was done in the latter half of 1999. Between 1994 and 1999 there was, for a limited time, an issue about the confidentiality of these agreements which impeded inspection and which required orders to be made to facilitate inspection. I was then persuaded, and remain so, that there were reasons for genuine concern on the part of the plaintiff about confidentiality of the terms of these major contracts which could have affected its competitiveness in the international iron ore market, concerns that were particularly heightened by conduct on the part of a person associated with D5 & 6, a Mr Lovell, which led to contempt proceedings in this Court against Mr Lovell. Had the issue of confidentiality been properly approached by D5 & 6 when it was first raised, experience has shown that there would have been no difficulty in quickly resolving this matter so that inspection could have been secured in quick order. The long delay of D5 & 6 in inspecting the discovered LTSC's is by no means wholly or substantially explained by the question of confidentiality however. It was thus for the main part the very long delay by D5 & 6 that was responsible for D5 & 6 not becoming aware of the relevant terms of the LTSC's for such a long time. I am not persuaded on the materials presently before me that the plaintiff's conduct was contrived to prevent the relevant terms of the LTSC's becoming known by D5 & 6 and the other defendants or, indeed, that it was the conduct of the plaintiff that was the substantial reason why D5 & 6 were not aware of the relevant provisions of the LTSC's until the latter half of 1999. Further, while with more time and care it should have been possible for the plaintiff and its legal advisers to correctly identify all the relevant LTSC's at the beginning, it is not surprising that some errors were made given the size and nature of the plaintiff's business and the perceived need to act with speed. Hence, I am not persuaded that deliberate error in pleading has been demonstrated.
Next, it was submitted by D5 & 6 that the plaintiff had, in fact, invoked the force majeure provisions of the relevant contracts in June 1992. Having done so, it was submitted, they were never "in breach" of the LTSC's as the plaintiff had pleaded between June 1992 and March 2000. This submission appears to involve a misapprehension of the force majeure provisions and the relevant facts so far as presently they are revealed by the evidence. While no final view can be formed as to the true force and effect of the relevant contractual provisions at this interlocutory stage as these are in dispute in the action, it is, at first sight, their apparent effect, or at least it is clearly arguable that it is the apparent effect of the force majeure provisions in question, that they involve not one, as D5 & 6 contend, but two distinct stages of action by the plaintiff. The first is the giving of notice to the purchasers of the occurrence of a force majeure event. For present purposes it may be accepted that this was done by the plaintiff on or about 17 June 1992. The second was to make a formal claim under the relevant force majeure provisions. On the present evidence the second step was not and has not been taken by the plaintiff. The submissions of D5 & 6 fail to recognise these two apparently distinct stages and treat the notices given on or about 17 June 1992 to the relevant purchasers as being or including a formal claim. The notice may be seen to be precursor to the formal claim, but a formal claim need not follow the notice. The apparent effect of the relevant provisions is that the two steps are distinct in nature, purpose and timing.
The giving of notice of a force majeure event has an apparent effect of affording the plaintiff protection against claims by the purchasers for damages for non-delivery (and also for demurrage on the purchasers' shipping) so that notice may be given without any intention on the part of the plaintiff that it will make a formal claim. The formal claim is the distinct step by which the plaintiff can invoke the contractual provisions by which the purchasers may be required to take late delivery of ore which had not been delivered because of a force majeure event. As indicated late delivery appears as a matter of contract to be one which is to be effected at an agreed later time or, failing agreement, at the end of the relevant contract.
As presently informed, it appears at least clearly arguable on the part of the plaintiff on the trial of the action that in the circumstances alleged in the statement of claim the plaintiff was obliged to deliver a number of shiploads of iron ore to various purchasers under a number of LTSC's during the period of the alleged strike, but was prevented from doing so by virtue of the strike. It has thus not complied with its obligations under the relevant LTSC's. No formal claim having been made by it under the force majeure provisions, even though it was open as a matter of contract to the plaintiff to have made a formal claim, the plaintiff has not been relieved of its contractual obligation to deliver that iron ore. It is apparently the case, however, by virtue of the notice of the force majeure event which the plaintiff appears to have given in each case, that the plaintiff is not liable in damages to the purchasers for the non-delivery.
There is a question whether, in these circumstances, the plaintiff had in truth "breached" its obligations under the relevant LTSC's as alleged in the statement of claim until March 2000. In my view, final factual findings and a concluded view as to the effect of the relevant terms of the LTSC's will be necessary before this issue can properly be resolved. It is not a matter which can be resolved satisfactorily on the evidentiary basis possible at this interlocutory stage. There is also a need to consider the true effect of the statement of claim given that the particulars of loss and damage in par 38 refer to the plaintiff having been prevented from supplying to purchasers and to its failure to deliver iron ore to the purchasers.
I am unable to conclude at this stage, therefore, that the pleading in par 37C(e) as it stood until March 2000 that the plaintiff "breached its obligations under the long term supply contracts" was without factual or legal justification. I accept that, as now amended, par 37C(e) sufficiently and more clearly and accurately pleads the case which, as I understand it, the plaintiff now seeks to pursue. I am not persuaded, however, on what is presently known, that this change in the plaintiff's pleading has involved a move from that which the plaintiff could not sustain at trial in fact and law, to that which it might. That possibility remains open on what is presently known, but a final conclusion may not properly be drawn at the present time.
Even were the original allegation of breach to prove inaccurate or unsustainable, it is a further and different question whether it was, from the beginning advanced, or later maintained, as a sham, ie consciously advanced or maintained knowing it to be inaccurate or unsustainable. In my view that is not apparent from all that has been placed before me. That finding also involves an impression in various degrees of many of the factual and legal issues raised on this application, many of which are yet to be considered in these reasons. Anticipating much that is to be said in these reasons, and fully conscious of the difficulties of an evaluation of motive at this stage, I am not persuaded by the matters advanced to D5 & 6 that in bringing or maintaining the claim the plaintiff has consciously pursued a sham claim that it breached its obligations under the LTSC's.
D5 & 6 also direct attention to the closely related issue of the plaintiff's loss or damage. D5 & 6 contend in essence that by virtue of the force majeure provisions of the relevant long term supply contracts the purchasers under those contracts were obliged, or could have been compelled by the plaintiff to take delivery of all iron ore which the plaintiff did not deliver because of the strike.
Had that been done no loss of sales would have occurred. As an alternative to this last contention it is submitted that at worst the plaintiff might have suffered a comparatively small loss as a consequence of disruption which the delayed delivery might have involved, including a delay in receiving payment for the ore, but the measure of any such loss would be comparatively insignificant, it is submitted, and nothing like the claim for damages which the plaintiff has pleaded and maintained over the years since 1992.
I have already indicated that D5 & 6 advanced their submissions on the basis that the contracts obliged the purchasers to take delivery of all iron ore not delivered by virtue of the strike because the plaintiff had formally claimed under the force majeure provisions. For reasons already given, on the face of the contracts this submission is in error. It fails to take account of the distinction between a notice and a formal claim.
By way of reply to the submissions for the plaintiff on this application D5 & 6 further submit, in the alternative, that even if the effect of the force majeure provisions is such that the plaintiff has not required the purchasers to take later delivery of the iron ore, that was a contractual position on which the plaintiff could have insisted had it acted appropriately under the contracts, so that any loss by virtue of the non-delivery of iron ore was not due to the actions of the defendants but to the failure of the plaintiff to act appropriately to protect its position under the contracts.
So far as the affidavit evidence discloses the case the plaintiff seeks to sustain that by virtue of the strike it was unable to load some 10 bulk ore carrying ships sent by various overseas purchasers under a number of LTSC's. Some ships were delayed at the port but for the most part the ships that were scheduled to arrive and load were re‑directed by the purchasers to alternative suppliers. As a consequence, ships that should have loaded during the strike did not load and in most cases the purchasers' needs for iron ore was satisfied not by the plaintiff but by the plaintiff's competitors to which the ships were diverted. Further, it is the plaintiff's case that after the strike had concluded ships arrived and were loaded by the plaintiff as they would have had the strike not interrupted loading. While this is disputed by D5 & 6 as a matter of fact, that issue cannot be resolved at this stage on the evidence presently available. Hence, it is the plaintiff's case that the relevant purchasers have not taken delivery of any greater amount of ore following the strike than they would have done had there not been a strike. In these circumstances the plaintiff contends it has lost to its competitors the sales of ore which would have occurred had it been able to load the ships which had been scheduled to arrive and load but which were diverted to competitive suppliers of iron ore during the strike period. In these respects I note that the plaintiff's case is sufficiently supported on affidavit for present purposes. I note that D5 & 6 have also raised a pertinent issue of stockpiling of iron ore which may well prove to bear on some of the factual issues raised by these contentions but it is enough for me to record that it is not possible at this stage to reach any sufficient factual findings relating to stockpiling so as to negative any part of the case which the plaintiff seeks to advance.
The iron ore in question is mined and processed ready for delivery by the plaintiff itself. In respect of its purchasers in Asia it is loaded FOB on to ships sent by the purchasers to the plaintiff's installations in the State. The plaintiff's claim for loss and damage, relevantly, is formulated on the basis of the sales revenue it claims it has lost because of the diversion of the ships during the strike. From its lost gross sales revenue the plaintiff has deducted the costs it says it did not expend during the strike period, such as production costs, royalties, wages and so on. It is on this general basis, together with interest on lost revenue and some expenditure on demurrage, that the claim was quantified at $41.5 million at the time of this application.

There is also affidavit evidence to support the propositions that, at the time of the strike and indeed until the end of the term of the relevant LTSC's, and even until about the end of the operational life of the plaintiff's present ore deposits which may be 15 or more years from now, world market conditions and expectations, and the plaintiff's sales expectations, are such that the demand for iron ore will be less than the available supply. Thus the plaintiff was and will be selling into a highly competitive market with a capacity to supply iron ore which well exceeded and will continue to exceed its capacity to sell. There is also affidavit evidence that at the time of the strike and for a period thereafter the Japanese steel industry was experiencing a downturn so that its need for iron ore was less than otherwise would have been expected. In particular, with respect to the plaintiff's Japanese purchasers under the LTSC's, their combined total need was less than the quantities the plaintiff had contracted to provide and the Japanese purchasers had contracted to purchase.
The plaintiff sues in tort. It relies on Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1 at 11-13 for the proposition that damages are to be awarded with the object of placing the plaintiff in the position in which it would have been had the tort not been committed. The overriding rule for assessment of damages, the plaintiff contends, is to ascertain the sum that would place the plaintiff in the position in which it would have been had it not sustained the loss or damage; Johnson v Perez (1988) 166 CLR 351 at 355‑7. Although the plaintiff sues in tort, given the particular circumstances, the plaintiff also submits that this is a case in which the authorities as to the assessment of damages for breach of contract indicate the, or an appropriate, approach to the assessment of the plaintiff's damage. It relies on Thompson Ltd (WL) v Robinson (Gunmakers) Ltd [1955] Ch 177 and Charter v Sullivan [1957] 2 QB 117 for the proposition that when assessing damages for breach of contract, where the supply of goods exceeds the demand, the seller is entitled to the loss of profits on lost sales. The position in contract is different where the demand exceeds the supply so that the seller can readily sell every item it can make available for sale. In such a situation the seller would not be entitled to loss of profits on a lost sale because it can make the same profit on a substituted sale; Kargotich v Mustica [1973] WAR 167 at 167-8. It is the plaintiff's case that it is the first of these two possible situations which will be found to apply in this case and, as indicated, it has advanced affidavit evidence to support this view.
The plaintiff submits, therefore, that whether approached on ordinary tort principles for the calculation of damages, or by analogy with the contractual approach to damages, the prima facie measure of its loss and damage is the profit which it would otherwise have made from its lost sales. There is apparently credible affidavit evidence to identify those lost sales, the revenue lost and the appropriate deductibles from that gross sales revenue to support a lost profit in the order of that claimed.
While in some respects there is dispute as to the proprietary of aspects the way the plaintiff has formulated, calculated and supported its claim for loss and damage, nothing which is advanced demonstrates that the plaintiff's approach is necessarily wrong or unable to be justified. The legal principles on which the plaintiff seeks to support its approach to loss and damage is clearly arguable, although I make no attempt to determine its ultimate correctness as there are obvious countervailing legal and factual considerations. The multitude of factual issues relevant to the actual detailed calculations are sufficiently supported, on an interlocutory basis, although in many respects disputed or contradicted by other evidence presently before me, to persuade me that it cannot be concluded at this stage of the action that there is no genuine factual basis for the plaintiff's calculations of its loss.
It is obvious that the factual and legal issues relevant to the force majeure provisions of the LTSC's will feature significantly at trial. On the present application, however, the plaintiff contends in particular that given the factual circumstances potentially open on the affidavit evidence before me, it should be accepted that the plaintiff has an arguable and potentially sustainable case that, at least in the absence of a formal claim by the plaintiff under the force majeure provisions of the relevant LTSC's, it has no legal right to oblige its purchasers to take delivery of any of the iron ore not delivered because of the strike. If that be so, prima facie, the plaintiff contends, it has suffered loss and damage. While there can be seen to be questions of causation and perhaps remoteness, the plaintiff contends that prima facie its loss and damage is well arguably caused by the strike.
It is the plaintiff's contention that its failure to make formal claims under the force majeure claims procedure under the LTSC's is, as a matter of law, properly to be considered and determined on the basis whether the plaintiff has failed to mitigate its loss, but not as relevant to the question whether or not it suffered loss. That appears to be an arguable proposition. The plaintiff correctly points out that on the present pleadings there is no allegation that it failed to mitigate its loss. Even so, the plaintiff contends inter alia -
(a)its duty to mitigate "does not impose on [it] an obligation to take any step which a reasonable and prudent man would not ordinarily take in the course of his business"; British Westinghouse Electric & Manufacturing Co Ltd v Underground Electric Railways Co of London Ltd [1912] AC 673 at 689, Bellingham v Dhillon [1973] 1 All ER 20 at 23-4, London & South of England Building Society v Stone [1983] 3 All ER 105 at 120-2;
(b)however, the mitigation principle does not require a plaintiff to prejudice its commercial reputation; Finlay v Kwik Who Tang [1929] 1 KB 400 at 410, 415, 418;
(c)a plaintiff who sues in tort is never under a duty to mitigate intended damage; see the discussion and cases cited in Williams, Joint Torts and Contributory Negligence (1951) at 285; and
(d)the onus is on the defendants to prove a failure to mitigate; if the onus is not discharged the normal measure of damages applies; Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd (1991) 33 FCR 1 at 17, 29; Wenkart v Pitman (1998) 46 NSWLR 502 at 504, 520-3, 535, Metal Fabrications (Vic) Pty Ltd v Kelcey [1986] VR 507 at 509, 513.
These contentions appear to be well arguable in law. Should failure to mitigate become an issue in the case, from a factual viewpoint the evidence before me indicates the following. With respect to (d), if the onus is on the defendants, necessarily, it would have to be determined in the light of the evidence at trial whether the onus had been discharged. At present there is little more than hypothetical possibilities and although some of these may prove to be well founded that cannot be determined at this stage. With respect to (c) it is the plaintiff's case that the actions of D5 & 6 and the other defendants was deliberate and that the damage the plaintiff suffered was intended. With respect to (a) and (b) there is a great deal of factual and other contention before me whether a reasonable and prudent man in the plaintiff's position would have invoked the force majeure claims procedure despite an apparent risk to its commercial reputation if it did. The plaintiff has placed before me a body of apparently credible evidence directed to and capable of supporting the view that its conduct was reasonable in the circumstances. It is not possible to adequately resolve that factual issue at this interlocutory stage.
It should be clear from what has been said that I have not, and cannot, reach concluded views as to the strength or weakness of the plaintiff's case in law or fact for substantial damages. Those are matters which cannot be satisfactorily determined at this stage on the present evidence. The inability of D5 & 6 to make good, at least at this stage of the action, however, their contention that the plaintiff's claim for damages is misleading and unsustainable - that it is a sham - and that in fact the plaintiff has not suffered a loss, or any substantial loss, from the 1992 strike, has a significant effect on the case of D5 & 6 with respect to improper and collateral purpose. It should be also noted that in addition to the disputed issues about loss and damage from lost sales of iron ore, the plaintiff also sought injunctive relief, damages for trespass (which is actionable per se and whether or not there is actual financial loss), and damages for loss of reputation. These are causes of action which would entitle the plaintiff genuinely to bring and pursue the action independently of its claim for lost sales. More significantly, however, for the reasons that have been canvassed, it remains the case that the plaintiff has an arguably genuine claim for damages for tortious loss and that there are arguably genuine foundations for its case that the measure of its loss may prove to be properly calculated at, or in the region of, the figures now particularised by the plaintiff. D5 & 6 have not been able to displace that prospect even though they have demonstrated that the plaintiff's claim is not clear-cut and a number of significant issues will need to be resolved before the question of the existence of loss and damage and its quantum if any can be finally determined.
Further, I am not able to conclude, having regard to all that is presently before me, that even were the primary claim for damages to prove ill founded, that the plaintiff did not have a genuine belief at the time of the commencement of the action and does not now have a genuine belief that it has a well founded very substantial claim for damages against the defendants. The plaintiff may well recognise, in light of its more detailed preparation over the years and of the issues which have emerged or which have been highlighted in the more recent history of interlocutory disputation, that it will have to deal with a number of difficulties to make good a claim for very substantial damages and it may even have a different or heightened awareness of these difficulties at this stage of the action from when the action was commenced. I am unable to conclude, nevertheless, that at the commencement of the action or at some time since then the plaintiff has realised it did not have a genuine claim for very substantial damages or that it has pursued or maintained the action at any stage despite having held or come to such a realisation. These matters weigh heavily in my appreciation of the overall effect of the evidence against any finding that the plaintiff is not genuinely pursuing the action with a view inter alia to securing a substantial award of damages against the defendants including D5 & 6. On the first strike out application I was persuaded that the plaintiff "genuinely desires for legitimate reasons to pursue the action to judgment" (see p 35 of the reasons). While the further material now placed before me provides reason, in a number of respects, to re-evaluate the plaintiff's position and its genuineness and its motivation, having done so I am not persuaded by the case now presented by D5 & 6, even when considered in its entirety, that there is reason to change that finding.

The Strike, Beales, the Action

At the risk of some repetition, the case for D5 & 6 in part contends that in pursuit of the plaintiff's alleged "larger strategic plan for the demise of the unions" or as it was also put, the marginalisation of the unions, ie the alleged collateral and improper purpose, the plaintiff intended to use "the common law" and the courts as an adjunct to its plan and as a means of achieving its alleged true objective. So it is, in the contention of D5 & 6, that the plaintiff in truth engineered the strike in June 1992 or, perhaps as an alternative, seized the opportunity presented by the strike, and then commenced this action. As has been indicated it is D5 & 6's contention that this was done not for the, or the predominant, purpose of pursuing the action to judgment but for the, or the predominant, purpose of achieving its objective of the elimination or marginalisation of the unions. To this end it is contended, with some repetition of issues already considered, that the plaintiff commenced the action claiming very substantial damages the measure of which would more than cripple the defendant unions if it succeeded, even though it had no such claim or at best a very modest possible claim. Further, it is submitted, the plaintiff knew its claim was not genuine when it commenced the action, a contention heavily relied on to demonstrate the plaintiff had an improper and collateral purpose in commencing and pursuing the action. D5 & 6 also rely on the fact that the action was commenced on the very day the plaintiff's workforce returned to work; ie the day the strike ended, as evidence of the existence of a collateral and improper purpose, particularly in light of the claim for an injunction directed against the defendant unions.
One view reasonably open on the present evidence is that by early 1992 the plaintiff had determined as a matter of new policy that it ought no longer enable or accept the situation, which had prevailed for many years, by which all its employees were members of a union, ie a "union closed shop", and that it should adopt a freedom of choice policy which involved the employment of non-union as well as union member employees. Among the reasons for this change were concerns that the existing policy was in contravention of s 96B of the Industrial Relations Act 1979, a desire to achieve a new employer/employee ethos rather than a confrontationist relationship, an improvement in the efficiency of its mining and production operations, a desire to achieve a reduced workforce and improved competitiveness in the market place.
As part of that consideration the plaintiff took legal advice which, so far as presently appears, was as to the industrial and other courses that might be available to enable or facilitate the achievement of this change of policy and to deal with the potential consequences of implementing the change. One potential consequence which was foreseen was industrial unrest including the clear possibility, if not probability, of a strike. This advice about these matters, and on the anterior question of whether a new policy should be adopted, naturally included consideration of s 96B of the Industrial Relations Act which was thought both to require the change of policy and give rise to the prospect that if a strike occurred, and loss to the plaintiff ensued, proceedings might be taken at common law, on a number of possible bases, to recover the loss. While the submissions for D5 & 6 sought to place the obtaining of this advice as part of the scheming or planning of the plaintiff to further its collateral and improper objective of achieving the elimination or marginalisation of the unions, the present evidence appears to be at least equally capable of supporting the view that the obtaining of the legal advice was a prudent measure taken with a view to assessing and minimising the potential harm to the plaintiff if it implemented the new policy. The evidence is at least equally capable of supporting the view that in deciding that it should implement the new policy the plaintiff was very conscious of the risk of industrial unrest, especially a strike, and had in mind the industrial relations steps it should take to lessen that risk or minimise the harm that it might suffer as a consequence, and also had in mind that legal proceedings might both enable injunctive relief as another means by which harm to it might be minimised and also the recovery of any loss it suffered from a strike, and that it was with these objectives in mind that it commenced the present action at the end of June 1992.
A member of the plaintiff's workforce, one Beales, had been employed by the plaintiff late in 1991. It is sufficiently demonstrated that he was not then a member of a union although that fact was not then known to the union defendants. The refusal of the plaintiff to remove or dismiss Beales when, in mid‑1992 he refused to join a union, became a, or the, precipitating factor for the strike in June 1992.
D5 & 6 contend that the plaintiff knew Beales was not a union member when he was employed, and it disguised or hid this fact from the unions as part of a strategy to use Beales to engineer a strike at a time suitable to the plaintiff. Further, it kept from the unions its new policy to change from a preference to unionists to an open employment or freedom of choice policy. In May - June 1992 at a time when the demand for iron ore was reduced especially because of the economic situation in Japan, D5 & 6 contend the plaintiff engineered Beales' public stand against joining a union and supported him to provoke a strike; alternatively it seized and used the opportunity provided by Beales' public stand with a view to inducing a strike. It did not inform the unions during the strike that it had paid for and facilitated Beales' departure from his workplace, it controlled the timing of Beales' return to his workplace, and by these means D5 & 6 contend the plaintiff manipulated the course of the industrial confrontation in June 1992 and the duration of the strike at that time. It is submitted that all of this is established by the available evidence and it should also be concluded that these things were done by the plaintiff as part of its "larger strategic plan for the demise of the unions".
There is a large and diverse body of evidence on affidavit as well as documentary evidence offered in support of these factual allegations. Some of it was considered on the first application, some of it was considered on the application to adduce further evidence on appeal when some of it was held to be inadmissible, but some has not previously been considered. There is also a considerable body of answering or contradicting evidence relied on by the plaintiff.
The general position as to the evidentiary material now relied on by D5 & 6 is that in respect of most but not all of these allegations, while there is no compelling body of evidence, there is at least some evidence which is admissible and which is capable of establishing, or which is consistent with, the contentions advanced by D5 & 6. There is, however, within the evidence relied on by D5 & 6 great variation in apparent quality, reliability and degree of relevance, as much as these matters can be assessed on affidavit, and there is material which contradicts some of the matters of fact which D5 & 6 contend. Further, virtually every material matter of fact which D5 & 6 contend is the subject of answering or contradicting evidence.
In these circumstances it is not possible, at this interlocutory stage, to reach the factual findings necessary to make good these contentions of D5 & 6. It is not intended by those observations to foreclose the prospect that after a full trial of the issues such a case might be made good. Rather, as I see the position, the available evidence is inadequate to overcome the difficulties inherent in an attempt to make good contentions of this nature at an interlocutory stage when there is apparently cogent evidence which contradicts or apparently answers essential elements of the factual case advanced for D5 & 6 and when the evidence relied on by D5 & 6 has its own internal contradictions and weaknesses.
While some of the evidence may well support a finding that one or more of the plaintiff's staff were aware, or should have realised, that Beales was not a member of a union when he was employed, there is also evidence to the contrary and the present evidence would not commend a finding that the plaintiff's senior officers were aware of this, or that Beales was recruited because of this. It does seem to be the case that the plaintiff did not discuss its new policy or its implementation with the unions, but that is hardly surprising as it was the unions who were the perceived opposing force on this issue and the evidence indicates that much of the plaintiff's planning for the implementation of the new policy was directed to achieving this despite the anticipated strong opposition of the unions, as proved to be the case. There is presently scant evidence to indicate the plaintiff played a role in Beales' public stand against joining the union although later, in the height of the industrial tension, it did offer Beales some support and arranged for Beales and his family to move away from the strike locations for a time, at the plaintiff's expense or with the plaintiff's financial assistance, and did arrange for Beales to return and to commence work again after the strike. The Japanese steel industry was depressed in June 1992 but that was the case for much of 1992 and there is no demonstrated direct link between the timing of the strike in June 1992 and the Japanese steel market or industry. In particular, I should observe that the evidence does not enable a finding that the plaintiff "engineered" or orchestrated the strike or its course, or that it used or consciously took advantage of Beales' non-union membership for this purpose.

D5 & 6 point to documents from various of the plaintiff's Japanese customers which refer to contracts or contract performance and submit that this reveals that there was a contract regulating supply of iron ore from the plaintiff rather than the "usual practice" or custom of the iron ore trade. This is a submission founded in the apparent misconception of the plaintiff of the case which the plaintiff seeks to raise by its reply.
D5 & 6 sought to rely on a document which indicated that in 1992 a Korean purchaser had received in excess of the annual contracted tonnage (6.5 million dry long tonnes). The submission did not take account, however, of the "annual declaration" applicable under the LTSC at the time by which 7.35 m dlt's were anticipated. The document suggested the amount received was less than this. Hence, even on D5 & 6's view of the relevant document, there had been a short supply to that Korean customer over the year. Even so, while an oversupply of an annual quantity might well have relevance to the question whether there had been a loss of sales to that customer because of the strike, an annual excess of supply does not necessarily reveal that there was no loss of sales because of the strike.
There was also reliance by D5 & 6 on documents (generated it seems in 1993) in which consideration was given to the effect of eliminating strike from the force majeure events in the standard contractual provisions used by the plaintiff. For this purpose some apparently theoretical calculations were made of the possible effect of eliminating strike in this way, but none of the documents were directly dealing with the actual experience of the plaintiff in respect of the June 1992 strike. Among the documents relied on was a document of a company distinct from the plaintiff, Hamersley Europe Limited, in which consideration was given to a similar issue but it was not apparent how that document, although relied on heavily in the submissions of D5 & 6, bore on the actual experience of the plaintiff in the June 1992 strike. Like most of these newly discovered documents this group of documents dealing with the force majeure provisions might well be made much of at trial but they remain inconclusive for present purposes.
D5 & 6 also point to the use in one of the recently discovered documents of the phrase "closed shop". They submit that for some time D5 & 6 had planned to introduce an allegation into their pleaded case that it was an objective of the plaintiff in relation to the strike to put an end to the closed union shop which was said to be the characteristic of the plaintiff's workforce at that time. While the document uses the phrase "closed shop" it is not submitted that its content otherwise demonstrates or supports the case D5 & 6 contemplated pleading. It is simply left undemonstrated from the submissions and the evidence how this document in any way advances or hinders D5 & 6 in the advancement of the case which they submit is in contemplation.
There were also submissions directed to references in more than one document of the plaintiff to strike insurance which it was submitted has thus "emerged" for the first time as an issue, one which had not previously been considered by D5 & 6. It was contended that they could not effectively consider and test this issue at this late stage. There appears much force in the answering submission of the plaintiff, however, that even if there was strike insurance that would not affect the measure of loss which might be claimed by the plaintiff in the action. Hence it is not apparent that this issue could have any material relevance to the issues in dispute in this action or to the preparation for trial of D5 & 6.

Other submissions

D5 & 6 substantially repeated the effect of submissions which were advanced on the application to amend the plaintiff's statement of claim by which D5 & 6 objected to the changes proposed by the plaintiff to the specification of the LTSC's on which it relied. In addition to the observations I made with respect to those proposed changes when I allowed them and the observations made earlier in these reasons, I would note that for present purposes it is not apparent that the changes proposed by the plaintiff and allowed are fundamental, as is now submitted by D5 & 6. Generally the amendments appear to more accurately identify or better describe the contracts on which the plaintiff relies and to correct some errors of description. In a few cases contracts are deleted which, after consideration and further investigation, the plaintiff considers were wrongly included in the first place.
As discussed earlier in these reasons the changes that have been made do not appear to result in the introduction of contracts which are materially different in respects relevant to these applications. Nor has the time taken to correctly describe and correctly plead the contracts to be relied on been shown to be a matter which has been productive of significant embarrassment or difficulty for D5 & 6 in the preparation of their cases. I would note again that the enquiries and preparation undertaken by D5 & 6 in respect of the LTSC's upon which the plaintiff now relies were not commenced until the second half of 1999. By this time the plaintiff had given notice of the amendments it proposed to the LTSC's relied on in its statement of claim. These observations do not overlook the reservations and concerns I have expressed elsewhere about the course taken by the plaintiff with respect to the amendment of its statement of claim but these reservations do not involve a finding that the conduct of the plaintiff has involved any deliberate strategy to plead its case and delay and structure amendments so as to mislead or to mask the LTSC's actually relied on or its real case. That has not been demonstrated.
In this last respect D5 & 6 also relied in particular on the amendments to the statement of claim to delete certain LTSC's which, at least in my finding of the matter in [2000] WASC 66, involved the deletion of contracts under which the plaintiff in truth never had a claim for lost sales. D5 & 6 submit that the inclusion of these contracts in the statement of claim was a strategy to mislead and confuse. The evidence presently before me and the circumstances do not persuade me that such a finding should be made. The circumstances are consistent with the plaintiff having, on more detailed reflection of the facts and the terms of the particular contracts, determined that it had been in error in including them in the first place. With more time and greater care no doubt that error would not have been made in the first place, or might have been corrected earlier. In my finding, however the circumstances do not reveal that there was a deliberate strategy of pleading wrong LTSC's so as to mislead the defendants.
D5 & 6 also sought to rely on some submissions that were advanced by counsel for the plaintiff when leave was sought by the plaintiff to appeal from my decision on the plaintiff's application to amend its statement of claim. In essence, D5 & 6 sought to draw from the submissions of counsel made at that time that the plaintiff in effect accepted or admitted that the plaintiff had not suffered the damage pleaded and to admit that, by my refusal to allow it to amend to include the proposed alternative claim for damages, the plaintiff was in effect deprived of any remedy. In my view, these submissions fail to read those submissions in their actual context, and fail to have regard to the purpose of those submissions. In my view the submissions of counsel when viewed in context do not contain any such indication.
It is also submitted for D5 & 6 that by virtue of the late discovery, and what it submits was the late pleading of the plaintiff's true case, the plaintiff has rendered futile a great number of interlocutory steps that had been taken by D5 & 6. The point of this submission seem to be that this has involved such a waste of time, effort and resources by D5 & 6 that it is not now in the interests of justice that the plaintiff should be allowed to continue to pursue its claim. Further, because all this had occurred, it is submitted, as a consequence of the strategy and culpable conduct of the plaintiff as to the manner in which it had chosen to conduct its case to date, these circumstances in combination should be seen sufficient to demonstrate that the conduct of the plaintiff constituted an abuse of process. The reasons already given have indicated my reasons for not being persuaded that there was any culpable or deliberate late discovery or that there has been either a pleading of a new case by the plaintiff or that there has been any deliberate delay by the plaintiff as to the timing of the amendment of its pleading so as to mislead or embarrass any defendants. That does not rule out the likelihood that, at least in some limited respects, the lateness of discovery and the recent amendments to the pleadings may have rendered some work of D5 & 6 in the preparation of their case unnecessary and may now require new and additional work to be undertaken by D5 & 6. It has not been shown that the extent of this is extensive. Further, in the absence of any sufficient foundation in the evidence and circumstances for a conclusion that there was some deliberate strategy being followed by the plaintiff to embarrass or mislead the defendants these matters do not, however, reveal conduct which may properly be regarded as an abuse of process or which could warrant the action being otherwise stayed or dismissed at this time.

Conclusion

It is not possible from the recently discovered documents, whether considered individually or collectively, or when considered with all the other evidence that was before me when the principle applications were argued in April 2000, to reach the positive factual findings on which the applications of D5 & 6 depend. As I have sought to indicate there is much in some of the discovered documents and the other evidence that may well prove relevant to D5 & 6's efforts at trial to test the plaintiff's case that it has suffered loss and damage as claimed by virtue of the alleged tortious conduct of D5 & 6 and the other defendants in connection with the strike in June 1992, and as to the measure of that loss. The evidence now before me, considered individually or in its totality, does not demonstrate, however, that the plaintiff's pleaded case is without arguable legal and factual foundation, or that in truth the plaintiff has suffered no or no substantial loss from the strike, or that its case "is foredoomed to fail", or that the action is a sham, or views to similar effects. Nor does the evidence demonstrate that the plaintiff in truth held one or more of those views, or any similar views, at the commencement of the action or that it has done so at any time since then.
From an evidentiary viewpoint it may be said generally that D5 & 6 have sought to have me reach findings of fact of this nature on the basis at best of untested, ambiguous and inconclusive evidence; in many respects indeed D5 & 6 seek to rely on very tenuous evidence or on inference when other inferences are as open or more open. Further, in some respects D5 & 6 have raised issues which, on their face, are false issues by virtue of the mistaken view they advanced of the purpose or effect of the plaintiff's pleadings. An entirely different purpose and effect is relied on by the plaintiff and the plaintiff's contentions in these respects is clearly arguable in the relevant sense. The validity of the plaintiff's case as to these matters will need to be determined at trial.
For the reasons given D5 & 6 have not satisfied me, even having full regard to the further discovery and conduct of the plaintiff since the argument in April 2000, that the action should be stayed, stuck out or dismissed on the basis either that there has been a want of prosecution or that the action or the conduct of the plaintiff constitutes an abuse of process.
I would therefore grant D5 & 6 leave to re-open their case on the two applications which were argued and reserved for decision in April 2000, but I would dismiss both applications.

Other miscellaneous applications

At the hearing in July the parties also dealt with five other applications of D5 & 6 the outcome of which depended on or involved issues already canvassed in these reasons. Four of these applications concerned pleadings and the fifth discovery.
By application dated 3 April 2000, as later amended, D5 & 6 sought orders pursuant to O 20 r 19 of the Rules of the Supreme Court to strike out par 2A, par 37C(e) and par 38 of the statement of claim together with par 42, par 44, par 45, par 45B, par 45C, Sch 5 in so far as they which deal with particulars of loss and damage, and par 46A-E. D5 & 6 submit that these paragraphs and the particulars of loss and damage are not consistent with the evidence of the plaintiff's witnesses filed in support of various applications. At the heart of this application is D5 & 6's contention that it is apparent from the affidavits that the plaintiff's case is not in truth, or is no longer, founded in the breach of the LTSC's so that these parts of the statement of claim which propound such a case should not be allowed to stand. The discussion in these reasons of this line of contention is sufficient to indicate the reasoning which persuades me that no part of this application should succeed. It will be dismissed.
By application dated 22 June 2000 D5 & 6 seek firstly orders pursuant to O 20 r 19 to strike out a number of parts of par 5(b) of the Reply of the plaintiff dated 9 June 2000.
It is submitted that insofar as the plaintiff seeks to rely in par 5(b)(1) on the China National Metals & Minerals Import & Export Corporation contract it should not be allowed to stand in the Reply as the plaintiff no longer claims that ships relating to this contract were diverted by virtue of the strike. But as the plaintiff's particulars of reply make clear this contract is relied on by the plaintiff in respect of its demurrage claim. Whatever the merits of that claim may prove to be that is a sufficient reason for the plaintiff to plead this contract as it has. This ground fails.
D5 & 6 contend that par 5(b)(1) should also be struck out as inconsistent with the plaintiff's admission in par 1(a) that no purchasers cancelled tonnage pursuant to the LTSC's. For reasons given earlier this submission appears to read too much into the reference to "cancelled", which appears to be used in the contractual sense rather than the loose factual sense implied in this submission. This ground fails.
It is contended that par 5(b)(2)-(11) pleads a different cause of action, ie the "usual practice" of the international iron ore trade. For the reasons given earlier this ground fails.
D5 & 6 contend a wrong contract is pleaded with respect to the Pohang Iron and Steel Co Ltd. The plaintiff contends that the contract which D5 & 6 say should have been pleaded had not been executed at the time of the strike so that the pleaded contract was in force. The circumstances as revealed by the evidence appear to support the plaintiff's contention. This ground of D5 & 6 fails.
Objection is made to par 5(b)(5)(i) as being inconsistent with par 2A of the statement of claim. The underlying point is once again "cancelled" tonnage and the contentions of D5 & 6 as to par 1(a). For the reasons given above this ground fails.
Secondly, D5 & 6 also move in the inherent jurisdiction of the Court and pursuant to O 16 for judgment to be entered in favour of D5 & 6 in respect of the issues pleaded in par 2A of the statement of claim on the basis that D5 & 6 have a good defence on the merits to the issues there pleaded. As par 2A merely identifies the LTSC's which the plaintiff relies on and does not plead issues this appears to be misconceived. Further, the argument of D5 & 6 relies again on the contention that the plaintiff is not or is no longer in truth relying on the LTSC's but on the custom or usual practice of the iron ore trade and has not suffered the loss claimed. For the reasons already given this ground fails. The application is dismissed.
By application dated 30 June 2000 D5 & 6 seek the striking out of par A7(d)(iii) of the further and better particulars of the re-amended statement of claim. This is sought pursuant to O 20 r 19. This is the pleading in which the plaintiff seeks to raise again by way of particulars what is in effect the alternative claim for damages for which it was refused leave to amend its statement of claim to include. While I appreciate the argument of the plaintiff that it is merely providing particulars which were sought by a specific request of D5 & 6, which particulars set out what the plaintiff wishes to contend is the true position, it seems to me that consistently with the refusal of leave to the plaintiff to plead the alternative damages claim these particulars should not be allowed to stand. Should, on the hearing of the pending appeal, the Full Court allow the plaintiff's appeal against the refusal of leave to plead this alternative damages claim then these particulars will, no doubt, need to be revisited. Leave to do so can be sought should that situation arise. In the meantime, for consistency, these particulars will be struck out.
By application dated 11 July 2000 D5 & 6 seek an order to strike out answer 7 of the plaintiff's further and better particulars of reply on the ground that they seek to advance a case which is inconsistent with the pleaded cause of action in the statement of claim of interference with contractual relations, ie a case founded in the custom or usual practice of the iron ore trade. For the reasons given earlier this fails.
It is further contended that par 2A of the statement of claim should be struck out on the ground that the defendants have a good defence on the merits to the issues pleaded in par 2A. For the reasons indicated with respect to the similar ground in the application dated 22 June this ground fails. The application will be dismissed.
By application dated 11 May 2000 D5 & 6 seek a springing order for specific discovery. This concerns the issue whether there were or remain undiscovered documents in the possession or power of the plaintiff in relation to its failure to make a formal force majeure claim against its Japanese and Korean purchasers, ie to insist on its contractual rights to have these purchasers take delivery at a later time of any shipments of iron ore which were not delivered as scheduled because of the strike. On 20 March 2000 I made an order for specific discovery which required the plaintiff to provide on affidavit on or before 20 April 2000 evidence stating whether there were documents relevant to decisions of the plaintiff not to pursue its contractual rights against the relevant Japanese and Korean purchasers.
Although not within the time stipulated by the order of 20 March 2000, nevertheless, two affidavits have been provided by the plaintiff. The effect of these is that the plaintiff did not make a decision not to require the Japanese or Korean purchasers to take delivery of replacement tonnage. The double negative in this proposition appears to be a consequence of the form of the order to which the affidavits respond.
D5 & 6 submit that these answers on affidavit should not be accepted as the plaintiff, having admitted that force majeure notices were issued, "must have made a decision not to enforce them" and the "only reasonable inference is (that) a decision of this nature must be evidenced in writing by way of minutes of meetings, agendas of meetings, memoranda, correspondence and communications". This submission involves the continued failure of D5 & 6 to distinguish a notice of a force majeure event from a formal claim pursuant to the force majeure provisions of the LTSC's. On the evidence presently before me, as indicated previously in these reasons, while notice was given no formal claim was ever made. Hence, it is not the case that by the notice a process was set in motion which the plaintiff had to have brought to a halt, such a step necessarily requiring that the plaintiff make and communicate a decision to the purchasers. Rather, the contractual position was that in the absence of a formal claim by the plaintiff there was no process set in motion of the nature for which D5 & 6 contend.

When the evidence now before me as to this issue is considered it remains somewhat surprising that there was not a formal recording of deliberations within the plaintiff's organisation as to whether a formal claim should be made against some or all of the relevant purchasers and some written formal communication with those purchasers. Nevertheless, on balance, the evidence does not satisfy me that there must have been such a process and one which must have been productive of written records. It remains a matter of interest, but it may well be that the approach indicated by the evidence offered by the plaintiff was in fact followed, ie in essence informal oral discussions by a few senior persons within the plaintiff's organisation and with those acting for it, and with the relevant purchasers. Given that to be the factual situation revealed by the evidence as I appreciate it, I am not persuaded there has been a failure by the plaintiff to respond adequately to the earlier order or that there must now remain documents of the plaintiff which should have been, but which have not been, discovered. In these circumstances, the application should be dismissed.

Summary

For the reasons given the two primary applications of D5 & 6 to have the action struck out or dismissed or permanently stayed, variously for want of prosecution or as an abuse of process, are dismissed.
The application of D5 & 6 to have leave to re-open its argument concerning those two primary applications is granted, but the orders of dismissal of both applications remain.
The application of D5 & 6 dated 30 June 2000 to strike out par 7(d)(iii) of the further and better particulars of the re-amended statement of claim is granted. Otherwise the miscellaneous applications of D5 & 6 dated 3 April 2000, 22 June 2000, 11 July 2000 and 11 May 2000 will be dismissed.