International Litigation Partners Pte Ltd v Chameleon Mining NL (No 2)

[2011] NSWCA 141

Court of Appeal

New South Wales

Case Title:	International Litigation Partners Pte Ltd v Chameleon Mining NL (No 2)
Medium Neutral Citation:	[2011] NSWCA 141
Hearing Date(s):	On the papers
Decision Date:	03 June 2011
Jurisdiction:
Before:	Young JA
Decision:	Appeal dismissed with costs. Cross-appeal allowed with costs. Declaration that first respondent validly rescinded Funding Agreement. Consequential orders as first respondent's short minutes of order. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	CORPORATIONS- powers of ASIC- short minutes were to be filed in consequence of a successful cross-appeal- ASIC issued an instrument which varied the list of exemptions from sections of the Corporations Act (Cth) including a section relevant to the cross-appeal- what is the effect of the instrument on the Court's orders?- whether an ASIC instrument can retrospectively alter exemptions- instrument did not have retrospective effect and it is doubtful whether ASIC can make a retrospective instrument.
Legislation Cited:	Corporations Act 2001 (Cth), ss 601QA, 962, 1020F
Cases Cited:	Brookfield Multiplex Ltd v International Litigation Funding Partners Pte Ltd (No 2) [2009] FCAFC 182; 76 ACSR 323
Texts Cited:
Category:	Consequential orders
Parties:	International Litigation Partners Pte Ltd (Appellant) Chameleon Mining NL (First Respondent) Cape Lambert Resources Limited (Second Respondent)
Representation
- Counsel:	B Walker SC and R C Higgins (Appellant) T Bathurst QC and M A Jones (First Respondent) C R C Newlinds SC and J C Giles (Second Respondent)
- Solicitors:	Blake Dawson (Appellant) Swaab Attorneys (First Respondent) Lavan Legal (Second Respondent)
File number(s):	CA 2010/267410
Decision Under Appeal
- Court / Tribunal:
- Before:
- Date of Decision:
- Citation:
- Court File Number(s)
Publication Restriction:

Judgment

1. YOUNG JA: This judgment concerns the form of the Short Minutes consequent upon the reasons of the Court delivered on 15 March 2011 ([2011] NSWCA 50) a matter which was committed to me as a single judge. However, the reasons I am about to state and the consequential orders have the approval of the other two judges.

1. The problem that has occurred in this case is that, after reasons for judgment were handed down, ASIC issued an instrument varying the list of exemptions from complying with certain sections of the Corporations Act 2001 (Cth).

1. That instrument amends an earlier instrument, which was made on 30 December 2010, of which the Court was not apprised when it heard arguments on the appeal.

1. The appellant says that, by reason of the issuance of the March Instrument, the cross appeals, which the Court on 15 March considered should be allowed, must now be dismissed.

1. The respondents, naturally, do not agree.

1. My Associate, at my request, after I had conferred with my colleagues, sent a memorandum dated 1 April 2011 to counsel for the parties seeking submissions and suggesting that it may be that, if a party intended to rely on the Instrument of 30 March, that party may have to apply to reopen. The memorandum also asked whether the Court could deal with the matter on the papers or whether the Court should be reconvened.

1. All the parties made detailed written submissions. Indeed, even ASIC made written submissions as amicus curiae. All were content to have the Court deal with the matter on the papers, though offered their assistance should the Court wish to hear further oral submissions.

1. The appellant made it clear that it did not seek to reopen. It merely said that the Court should reconsider the orders in light of the fact that the matter now drawn to its attention otherwise shows that there is the possibility that the decision is wrong. Further, "the Court's failure" to give effect to the Instrument will produce a misleading precedent.

1. It is a little hard to accept a submission that accuses the Court of "failure" (a) to consider an instrument to which no party referred during argument, or (b) to consider an instrument purportedly made after the reasons for decision were handed down and which has never been tendered in evidence.

1. The orders which the respondents seek are clearly in accordance with the reasons of the Court.

1. The version proffered by the appellant is based on the premise that the Instrument of 30 March 2011 alters the law retrospectively so that the Court's decision should be in its favour on the cross appeal. The submissions are that the Instrument operates so as to take away the future consequences of past conduct on and from the date of its grant and that the exemption created by the Instrument has retrospective effect.

1. It is doubtful whether this Court can take judicial notice of the Instrument without the appellant reopening its case. Assuming the Court can have regard to the Instrument, I am of the view, as ASIC's submissions make clear, that it is doubtful whether ASIC has power under ss 601QA(1)(b), 926(2)(a) and (c) and 1020F(1)(b) (the powers on which the Instrument relies) to make exemptions with retrospective effect. In any event, on its proper construction, the Instrument does not have retrospective effect.

1. The propositions in the previous two sentences have been assumed to be true in the authorities; see eg Brookfield Multiplex Ltd v International Litigation Funding Partners Pte Ltd (No 2) [2009] FCAFC 182; 76 ACSR 323, 329 [23].

1. Mr Newlinds SC for the second respondent seeks costs of the argument over the short minutes on the indemnity basis. The argument is that the position advanced by the appellant was hopeless. I do not consider that that is so, though it comes close. Accordingly, the cost orders, as per the first respondent's document which I have initialled and placed with the papers, constitute the orders of the Court.

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