Mineralogy Pty Ltd v Sino Iron Pty Ltd & Ors

[2021] HCATrans 55

[2021] HCATrans 055

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P16 of 2017

B e t w e e n -

MINERALOGY PTY LTD ACN 010 582 680

Applicant

and

SINO IRON PTY LTD ACN 058 429 708

First Respondent

Korean Steel Pty Ltd aCn 058 429 600

Second Respondent

CITIC Limited

Third Respondent

CITIC Pacific Mining Management Pty Ltd ACN 119 578 371

Fourth Respondent

Attorney General for Western Australia

Fifth Respondent

Application for leave to proceed

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 6 APRIL 2021, AT 12.01 PM

Copyright in the High Court of Australia

____________________

HIS HONOUR:   In this matter the order that I make is the first to fourth respondents have leave pursuant to r 4.03.2 of the High Court Rules 2004 (Cth) to file their bill of costs.

I publish my reasons and I direct that those reasons be included in the transcript.

The applicant applied for special leave to appeal from the judgment of the Full Court of the Federal Court in Mineralogy Pty Ltd v Sino Iron Pty Ltd [2017] FCAFC 55. On 15 September 2017, Nettle J and I refused the application and ordered the applicant to pay the respondents’ costs of the application.

The first to fourth respondents now seek taxation of the costs that have been ordered.  For that purpose, they seek to file a bill of costs.

Because more than three years has elapsed since any party has taken a step in the proceeding in respect of the application for special leave to appeal, the first to fourth respondents are unable to file a bill of costs unless they are granted leave to do so pursuant to r 4.03.2 of the High Court Rules 2004 (Cth). They seek that leave by summons filed on 30 November 2020. The parties have each filed written submissions and the application is suitable to be determined on the papers, without the need for listing a hearing.

The applicant points out that the first to fourth respondents have not given any reason for their delay in seeking to file the bill of costs.  They do not need to do so.

In seeking to file the bill of costs, the first to fourth respondents seek to give effect to an order that has been made.  Consistently with Hospital Products Ltd v United States Surgical Corporation (1993) 116 ALR 218 at 221, the grant or refusal of leave falls to be determined by reference to “the prejudice involved in the step proposed”.

The applicant asserts that the lapse of time has led to it suffering “general prejudice” by reason of being unable to participate in the taxing process as effectively as it might have done.  The applicant has failed to demonstrate that the lapse of time has led to it suffering any actual prejudice.

The order that I make is: “The first to fourth respondents have leave pursuant to r 4.03.2 of High Court Rules 2004 (Cth) to file their bill of costs”.

AT 12.01 PM THE MATTER WAS CONCLUDED