Mineralogy Pty Ltd v The State of Western Australia

Mineralogy Pty Ltd and International Minerals Pty Ltd (the applicants) sought to enforce two arbitral awards against the State of Western Australia (the respondent). The applicants brought the application ex parte and without notice. The respondent subsequently sought to set aside the ex parte order. The applicants contended that there were urgent and unprecedented circumstances which necessitated the application being brought ex parte, namely that there was legislation before the Parliament of Western Australia which, once passed, would appear to render nugatory any accrued rights held by the applicants. The respondent argued that the application should not have been brought ex parte because there were material facts that should have been fully disclosed. The respondent also argued that the awards were not capable of being enforced and that there were arguable grounds for refusing to enforce the awards. The applicants also argued that the 2020 Amendments (which came into operation from the first minute of 13 August 2020) did not prevent the Court from adjudicating the application brought by the respondent to set aside the ex parte order made on 13 August 2020. The applicants also sought an adjournment of the respondent's application until the 2020 Amendments' constitutional validity was determined by the High Court of Australia. The applicants were not entitled to bring the application without having served the respondent. The applicants also presented an inaccurate summary of the relevant law concerning the hearing of a s 35 application, including the availability of an ex parte application, and presented a misleading picture of the extent of compliance by the respondent with, at least, the 2014 Award. The applicants also failed to adequately set out the law relating to the enforceability of declarations made in an award. The order of 13 August 2020 is set aside. The Originating Application filed by Mineralogy Pty Ltd and International Minerals Pty Ltd on 12 August 2020 is adjourned to a date to be fixed.