JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: MCLEVIE -v- MINING PROJECTS MANAGEMENT GROUP PTY LTD [2022] WASC 265
CORAM: STRK J
HEARD: 29 NOVEMBER 2021
DELIVERED : 18 AUGUST 2022
FILE NO/S: CIV 1775 of 2021
BETWEEN: DEVIN WILLIAM MCLEVIE
Plaintiff
AND
MINING PROJECTS MANAGEMENT GROUP PTY LTD
First Defendant
AU KT PTY LTD
Second Defendant
Catchwords:
Equity - Injunction - Whether the plaintiff has established a serious question to be tried - Whether the balance of convenience favours injunctive relief - Injunction granted to restrain transfer or disposal of, or attempting to transfer or dispose of, or taking any steps to transfer or dispose of mining tenements - Turns on own facts
Legislation:
Mining Act 1978 (WA), s 45, s 69, s 116
Result:
Application granted
Category: B
Representation:
Counsel:
| Plaintiff | : | M T McKenna |
| First Defendant | : | T J Palmer SC & D M Benson |
| Second Defendant | : | R R Joseph |
Solicitors:
| Plaintiff | : | Gilbert + Tobin |
| First Defendant | : | Clayton Utz |
| Second Defendant | : | MinterEllison |
Case(s) referred to in decision(s):
Anglogold Ashanti Australia Ltd v Monument Exploration Pty Ltd [2019] WAMW 13
Australian Broadcasting Corporation v O'Neil [2006] HCA 46; (2006) 227 CLR 57
Briginshaw v Briginshaw (1938) 60 CLR 336
Caratti v Mammoth Investments Pty Ltd [2016] WASCA 84; (2016) 50 WAR 84
Crocker Consolidated Pty Ltd v Wille [1988] WAR 187
Ex parte Devant Pty Ltd v Minister for Mines (Unreported, WASC, Library No 960722, 18 December 1996)
Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510
Hunter Resources Ltd v Melville [1988] HCA 5; (1988) 164 CLR 234
Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533
Korab Resources Ltd v Richmond [2007] WAMW 16
Linter Group Ltd v Goldberg (1992) 7 ACSR 580
Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76; (2017) 55 WAR 36
Telferscot Nominees Pty Ltd v Chameleon Mining NL (2005) 42 SR (WA) 132
Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110
Wyloo Metals Pty Ltd v Quarry Park Pty Ltd [2021] WASC 356
Yarri Mining Pty Ltd v Eaglefield Holdings Pty Ltd [2010] WASCA 132; (2010) 41 WAR 134
TABLE OF CONTENTS
Summary
Relevant provisions of the Mining Act
An overview of the tenure
The evidence
An overview of the parties' contentions
Mr McLevie's contentions
The alleged scheme - dealings in relation to tenements
The scheme - the involvement of AU KT
Alleged non-compliance with s 45 and s 69 of the Mining Act
The effect of non-compliance with s 45 and s 69 of the Mining Act
Relief sought
The purported dealings
Prima facie case
Balance of convenience
MPMG's contentions
Prima facie case
Balance of convenience
AU KT's contentions
Prima facie case
Balance of convenience
Principles applicable to the grant of interlocutory injunctions
Disposition
Serious question to be tried
Primary claim -…
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- AGLC
- McLevie v Mining Projects Management Group Pty Ltd [2022] WASC 265
- Case
- [2022] WASC 265
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether there was a sufficient likelihood of success on the merits of the case to justify the preservation of the status quo pending the trial, and whether the balance of convenience favoured granting the injunction. The court considered whether the plaintiff had demonstrated a serious question to be tried and whether the potential injury to the plaintiff if the injunction was not granted outweighed the injury to the defendant if the injunction was granted.
The court found that, while there were difficulties with the plaintiff's case, there were nonetheless serious questions to be tried in relation to relevant factual matters. The court emphasised that at this stage of the proceeding, it was not appropriate to make findings on contested factual matters. Rather, the court's task was to determine whether the evidence raised triable issues. The court concluded that there were indeed serious questions to be tried, and therefore the plaintiff had satisfied the threshold requirement of establishing a prima facie case.
The final orders of the court were that the application for an injunction was to be listed for directions to facilitate the resolution of the issues between the parties.
Orders
Orders of the court
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Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In practice the notion that a plaintiff must show a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo is expressed compendiously by asking the question: is there a serious question to be tried?[77][77] Australian Broadcasting Corporation v O'Neil [2006] HCA 46; (2006) 227 CLR 57 [70] (Gummow and Hayne JJ); Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 [7] - [13] (Beech J). In assessing whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs, or is outweighed by, the injury which the defendant would suffer if an injunction was granted, in other words assessing where the risk of an injustice lies, the court will consider whether the refusal of an injunction will have the practical effect of determining the claim for substantive relief against the plaintiff.[78] If so, that is a factor that favours the grant of an injunction.[78] Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533, 536. As was noted by counsel on behalf of MPMG, this is not the occasion to finally determine whether or not there was a scheme on the part of MPMG and AU KT to retain tenure in breach of s 45(2) and s 69(1) of the Mining Act; or whether s 116(2) of the Mining Act provides a complete defence to Mr McLevie's claims.[79] Rather, the question to be determined is whether Mr McLevie has established, at least on a prima facie basis, that there is merit to what he says sufficient to warrant an injunction, and whether the balance of convenience favours grant. Mr McLevie by the application seeks that MPMG be restrained, contending that on the evidence filed, he has shown a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending trial. He seeks that MPMG be restrained from transferring or disposing of, or attempting to transfer or dispose of, or taking any steps to transfer or dispose of the acquired tenements. As to the prima facie case, at this stage of the proceeding it is generally neither appropriate nor possible for the court to make findings in relation to contested factual matters. The relevant task of the court is to determine whether the evidence before it raises a triable issue, that is, whether there is an issue, or issues, that need to be determined by a trial. In these reasons, I have set out in considerable detail Mr McLevie's pleaded case, the evidence read and relied upon, and the submissions made on behalf of all parties. There are difficulties with Mr McLevie's case. Large parts rely upon adverse inferences being drawn, and significantly, for the decision of the Court of Appeal in Yarri Mining Pty Ltd v Eaglefield Holdings Pty Ltd [2010] WASCA 132; (2010) 41 WAR 134 (Yarri Mining) to be found to be wrongly decided in light of the more recent decision of the High Court in Forrest v Forrest. That said, in all of the circumstances and having given careful consideration to the evidence read, the authorities referenced and the submissions made, I am satisfied that there are serious questions to be tried in relation to a number of relevant factual matters.