Ogbonna v Newmont Mining Corp - [2017] WADC 154

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: OGBONNA -v- NEWMONT MINING CORP [2017] WADC 154

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 27 JULY & 21 SEPTEMBER 2017

DELIVERED : 8 DECEMBER 2017

FILE NO/S: CIV 805 of 2017

BETWEEN: CELESTINE OGBONNA
Plaintiff
AND
NEWMONT MINING CORP
First defendant
AND
NEWMONT AUSTRALIA LTD
Second defendant

Catchwords:

Practice and procedure - Western Australia - Practice under the Rules of the Supreme Court 1971 - Application for summary judgment by defendant - Turns on its facts

Legislation:

Nil

Result:

Summary judgment awarded

Representation:

Counsel:

Plaintiff:     In person
First defendant              :     Ms R L Harding
Second defendant          :     No appearance

Solicitors:

Plaintiff:     Not applicable
First defendant              :     Jackson McDonald
Second defendant          :     Not applicable

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

Forsayth NL v Northern Gold NL (Unreported, WASCA, Library No 940012, 20 January 1994)

DEPUTY REGISTRAR HARMAN: According to the terms of the indorsement of the writ the plaintiff's claims are for breach of contract and trespass at Newmont Jundee Mine Western Australia.
By its application the first defendant seeks an order as follows:
1.The first defendant have leave to bring this application.
2.Pursuant to O 16 r 1 of the Rules of the Supreme Court 1971, the plaintiff's action against the first defendant be dismissed and there be judgment entered for the first defendant.
3.The plaintiff do pay the costs of the first defendant of the action, including the cost of the application for judgment.
4.Such further or other orders as to the court seem fit
In its submissions the applicant proposes that upon establishing a prima facie case in its application for summary judgment an evidentiary onus would be generated in the respondent.
In a context in which an applicant bears the onus of establishing a clear case to justify entry of judgment without a trial, there is no reason to consider that achieving some other threshold would have any significance. The onus on a respondent to such an application is no different to that in any other: to ensure any submission that requires evidentiary support is supported.
I am satisfied that the test of the application for leave is the same as that for the substantive application.
According to Forsayth NL v Northern Gold NL (Unreported, WASCA, Library No 940012, 20 January 1994), an application ought to be considered on the pleading, not upon a case that may be considered to be available to a plaintiff.
Since the application was made, the plaintiff has filed amended statements of claim. The latest dated 15 June 2017 is in part as follows:
2.The First defendant Newmont Mining Corporation is registered in Australia as a foreign company to operate business and holding company of Newmont Australia Ltd, being owner of Jundee mine site at the material time. The Second defendant is Newmont Australia Ltd (now known as Newmont Australia Pty Ltd) also known as 'Newmont', 'Newmont Asia Pacific' and Newmont Mining Corporation who is a public company incorporated under the Corporation Act 2001 (Cth) having its registered office at Level 2, 388 Hay Street, Subiaco, Western Australia 6008 and were the owner and operator of Jundee mine site at the material time.
3.Newmont Mining Services Pty Ltd, Newmont Australia Ltd (Now, Newmont Australia Pty Ltd) and Newmont Mining Corporation are jointly liable for the breach of Contract and interference with personal goods at the material time.
4.On 13th March 2011, the plaintiff had an interview with Newmont Asia Pacific also known as Newmont Australia Ltd (Now known as Newmont Australia Pty Ltd) for the position of a Mine Geologist. After a successful interview, Newmont Australia Ltd decided to have Integrated Group Ltd payroll the plaintiff.
5.The facts, matters and circumstances which the plaintiff relies upon to say 'Newmont Australia Ltd decided to have Integrated Group Ltd payroll the plaintiff' are:
(i)Integrated Group Pty Ltd was not a party to the agreement between the plaintiff and defendant, Newmont Asia Pacific when the offer of 3 months contract and subsequent full time employment at the end of it was made;
(ii)Integrated Group Ltd was not a party to the discussion between the plaintiff and the defendant, Newmont Asia Pacific when the plaintiff was interviewed for job interview and afterwards invited to Jundee mine site for familiarization visit on 15 March 2011.
(iii)At no stage was Integrated Group Ltd involved in the communication process before and during the expression of interest and interview process with the plaintiff for the position of 'Mine Geologist' at the defendant's Jundee Operations.
(iv)Mr Steve Marchesi of Geodis Wilson Australia Pty Ltd was the person who forwarded the plaintiff resume to Ms Andrea Dark, Newmont Asia Pacific as an expression of interest for the position of 'Mine Geologist'. The plaintiff got to know Mr Steve Marchesi while working for Geodis as a casual 'Fork lift operator' for Integrated Group Ltd.
(v)On 12 March 2011, Ms Andrea Dark, Senior Mine Geologist phoned the plaintiff and subsequently sent the plaintiff an email as confirmation of the scheduled interview with Newmont Asia Pacific on 13^th March 20 and the email had an attachment – position description titled "2. Mine Geologist_ 101‑102_ JUNDEE2010. doc (407.50KB)".
(vi)Newmont Asia Pacific had already entered into an employment contract and offered the plaintiff a job before engaging Integrated Group Ltd afterwards to payroll the plaintiff.
(vii)I later realised after the termination of my contract, that the payment arrangement was akin to a sham contract used to try to mischaracterise an employment relationship (i.e. a relationship between an employer and an employee).
(viii)There was no communication between Integrated Group Ltd and the plaintiff until the employment contract was finalised at which point Newmont Asia Pacific then informed the plaintiff that they would like Integrated Group Ltd to payroll the plaintiff.
6.On 15th March 2011, when the Principal Mine Geologist, Graeme Morgan verbally informed the plaintiff that after the initial three months of employment, the plaintiff's employment thereafter would automatically convert to a permanent position with Newmont Australia Ltd.
7.The facts, matters and circumstances which the plaintiff relies upon to say that Newmont Asia Pacific made to the plaintiff 'a direct and permanent offer of employment' following an interview for the position a Mine Geologist 13 March 2011 are as follows:
(i)the employment contract was not based on any award, which is common on the mining industry.
(ii)Newmont Asia Pacific's 'a direct and permanent offer of employment' was oral in nature; and occurred on 15 March 2011 and being, oral; the statement that constitute the contract was as following:
(the offer)
"Newmont is happy to offer you an initial three month's contract as a core shed technician. After this period you will be made a full time employee as a Mine Geologist to fill up an existing vacancy. Are you happy to accept this offer?"
Graeme Morgan as Principal Underground Geologist made the offer statement;
(the acceptance)
"Yes, I am happy to accept the offer; thank you."
The plaintiff response.
(iii)The material terms of the contract included the following:
'…'
8.On the evening of 10 May 2011, the plaintiff flew back to Perth from the Jundee mine site. But on 11 May 2011 the plaintiff got a surprise call from Jil Wilson, Integrated Group Ltd accounts manager, advising the plaintiff that Newmont Asia Pacific had instructed the plaintiff not to return to work for the next swing without specifying the reason when asked by the plaintiff.
9.After the phone call from Jil Watson, the plaintiff made several phone calls to various Managers at Jundee who refused to also provide the reason why the plaintiff contract was terminated. There was no termination notice issued or a letter written to the plaintiff to explain the situation.
Particulars of Breach of Employment Contract
10.Prior to the completion of the three month period, the plaintiff's contract was terminated by Newmont Asia Pacific and no reason was given for the termination. All attempts made by the plaintiff to find out from the Newmont Asia Pacific, the reason/s for the termination was declined.
11.The plaintiff's work performance was satisfactory at the material time prior to the termination of employment, neither was the plaintiff involved in any form of misconduct, apart from making verbal complaints about his person being defamed, and his personal belonging being tampered with, complaints which Newmont Asia Pacific failed to act upon.
12.The plaintiff was denied the right to complete the three months contract at which time the employment would automatically have changed over to full‑time employment as verbally agreed. During that material time, effort had already been initiated to make the plaintiff's employment permanent [sic].
In order to succeed in an action for breach of contract a plaintiff must establish the existence of a contract to which it was a party and its breach by the other party. The pleading of such a case would identify the contract and specify the breach.
In pars 4 to 12 inclusive of the statement of claim the plaintiff has undertaken that task. The agreement is for the plaintiff's employment or engagement as a mine geologist. It is not necessary to conduct an exhaustive analysis of that part of the pleading in order to determine whether the plaintiff contends that the other party or parties to the agreement were either or both of Newmont Asia Pacific and the second defendant. As for breach, termination was by Newmont Asia Pacific.
According to par 2, Newmont Asia Pacific is a name by which the second defendant was known. It is open to consider that by his use of that name in the process of pleading his case the plaintiff intended to refer to the second defendant.
Having heard the plaintiff's submissions, I am satisfied that the pleaded agreement and breach found his claim for breach of contract.
There is scope to consider that at par 2 the plaintiff contends that the first defendant is the owner or an owner of the mine site and perhaps that it is an operator of the mine site. In any event, it is the holding company of the second defendant. There is no pleading that any of those contentions alone or in combination constitute the first defendant as a party to the contract. In my opinion, having pleaded the relevant contract and its breach to the extent that he has, those contentions are rendered of no more significance than the fact that in performance of his contractual obligations the plaintiff had been working at the mine site.
By paragraph 3 the plaintiff does not allege a material fact. The proposition that the first defendant is liable for breach of contract is not justified by the content of pars 4 to 12 inclusive of the pleading. Indeed it is a feature of that part of the pleading that there is no reference to the first defendant.
The evidence filed in support of the application is of Andrew McGregor Kennedy sworn 29 June 2017 and Oliver Nicholas Hallam Green sworn 15 May 2017.
In his affidavit Kennedy introduces himself as follows:
1.I am a director of Newmont Mining Services Pty Ltd …(Newmont Mining Services) and Newmont Yandal Operations Pty Ltd, …(Newmont Yandal Operations) both subsidiaries of the second defendant … and I am authorised to swear this affidavit on behalf of the first defendant.
2.I was employed by Newmont Mining Services from 2009 to October 2013 as manager for legal services. That role included provision of legal services to Newmont Yandal Operations.
3.The facts contained in this affidavit are within my personal knowledge save where otherwise stated where they had been obtained from the sources stated. The facts deposed to in this affidavit are both true and correct to the best of my knowledge, information and belief.
4. …
Company Structure
5.At all material times, the mine site at Jundee in Western Australia which is the subject of this action was owned and operated by Newmont Yandal Operations.
6.…
7.…
8.At all material times, Newmont Mining Services:
(a)provided management services to Newmont Yandal Operations; and
(b)entered into employment contracts, along with other contracts from services, on behalf of Newmont Yandal Operations in relation to the mine site.
9.In or about July 2014, Newmont Yandal Operations completed the sale of its interest in the mining tenements relating to the mine site to Northern Star Resources Limited …
10.Attached and marked AMK3 is a copy of an ASX announcement by Northern Star Resources in relation to the sale.
11.Attached and marked AMK4 is a copy of an announcement in relation to the sale by the first defendant. At the time of the sale the first defendant was listed on the New York stock exchange so the announcement was made in its own name as the sale related to one of its subsidiaries.
12.Newmont Australia Pty Ltd … (Newmont Australia), the second defendant in this matter, is a holding company of the following entities:
(a)Newmont Mining Services; and
(b)Newmont Yandal Operations.
13.The first defendant…, a registered foreign company which is incorporated in the United States, is the ultimate holding company of the following entities:
(a)Newmont Mining Services;
(b)Newmont Yandal Operations; and
(c)Newmont Australia.
14.The first defendant, Newmont Mining Services, Newmont Yandal Operations and Newmont Australia are separate legal entities.
15.From my enquiries and the information I have been provided, including the mining tenements relevant to the site, and the best of my knowledge, information belief, at all material times the first defendant was not a holder of any relevant mining tenements at the site.
Employment Contract
16.On 24 July 2009, Newmont Mining Services acting as agent for and on behalf of Newmont Yandal Operations entered into contract with Integrated Group Ltd for the provision labour hire services.
17.Attached and marked AMK5 is a copy of an extract from the Integrated Agreement.
18.Attached and marked AMK6 is a copy of an email from Ashleigh Russell of Newmont Mining Services confirming the execution date of the Integrated Agreement.
19.From my enquiries and the information that I have reviewed and to the best of my knowledge, information and belief, at all material times the plaintiff was employed by Integrated Group Ltd and he worked at the site pursuant to the Integrated Agreement.
20.From my enquiries and the information I have reviewed, including my enquires with Nancy Lipson, Vice President and Deputy General Counsel of the first defendant, and to the best of my knowledge, information and belief, the first defendant:
(a)did not enter into any contract with the plaintiff on its own behalf or for on behalf of Newmont Yandal Operations or Newmont Mining Services;
(b)did not enter into a contract with Integrated Group Ltd for the provision of labour hire services on the mine site, or at all.
Kennedy does not specify when he became a director of either Newmont Mining Services Pty Ltd or Newmont Yandal Operations Pty Ltd. As for his employment by Newmont Mining Services Pty Ltd, he conveys no useful information concerning either his role as manager for legal services or the legal services provided to Newmont Yandal Operations Pty Ltd. It may be the case that the applicant considers that the court would infer that either as director or as manager of legal services at Newmont Mining Services Pty Ltd, Kennedy acquired knowledge of what he portrays of the corporate structure of which Newmont Australia Pty Ltd and Newmont Yandal Pty Ltd were parts; alternatively that somehow in either role he came to be so informed.
In a context where the applicant clearly carries the onus and gives no evidence of any difficulty in bringing evidence, there is no reason why the court would consider drawing any such inference.
Insofar as the deponent states at par 15 that at all material times the applicant was not the holder of any mining tenements at the site, it is not clear whether he gives evidence or purports to give permissible hearsay. If it is the latter, he does not specify the source or sources of his information and there is no statement of his belief. Regardless, the evidence is given in a context in which counsel for the applicant considered that it may be the case that the plaintiff contended that the first defendant was an owner and perhaps an operator of the mine site. The evidence does not deal with those prospects in any useful manner.
The date of the agreement specified at par 16 may not fall within either the period of the deponent’s directorships or his employment. The fact that it is not given on the basis of knowledge is established by pars 17 and 18.
The document marked AMK5 does not refer to the capacity in which Newmont Mining Services Pty Ltd engaged with Integrated Group Ltd. The statement of the deponent as to the agency of Newmont Mining Services Pty Ltd is not permissible hearsay. It is open to consider that the content of par 16 is unfounded hearsay.
The recitals of the document identified at par 17 refer to both services and a site at which they would be provided without specification of either. The agreement itself does not fill the gaps.
In a context in which the plaintiff has gone to some length to marginalise the role of Integrated Group Ltd in his engagement by the second defendant, it is notable that the applicant has not brought any evidence as to the meaning of the term labour hire services.
Although the deponent was employed by Newmont Mining Services Pty Ltd at the date of the plaintiff's engagement, there are reasons to consider that the statements at par 19 of the affidavit are given other than on the basis of knowledge. They are not founded as permissible hearsay.
The proposition that the plaintiff's employer was Integrated Group Ltd is not established: indeed, it is unfounded.
As for the content of par 20, it is difficult to discern how the deponent would know what is specified at subparagraphs (a) and (b). It may be that in making those statements he proposes that he gives permissible hearsay. He would identify the source of information as being the first defendant. Implicitly the deponent has such confidence either in his source or her knowledge. The particular source of information within the first defendant is not so located such that, without more evidence, there could be confidence that she knew what was expressed in those subparagraphs.
Turning to the content of subpars (a) and (b), what is stated would not be conclusive. As to (a), it would remain open to consider that the first defendant entered into a contract with the plaintiff for and on behalf of some entity other than Newmont Australia Pty Ltd or Newmont Yandal Pty Ltd. As for (b), it would remain open to consider that the first defendant entered into a contract with some entity other than Integrated Group Ltd for provision of labour hire services on the site. I might add at that point that it is not the plaintiff's case that he entered into a contract with Integrated Group Ltd.
Turning to the broader context, Kennedy does not give evidence as to how or when Newmont Yandal Operations Pty Ltd came to own or operate the mine site. His evidence of entry into employment contracts by Newmont Mining Services Pty Ltd on behalf of Newmont Yandal Operations Pty Ltd does not exclude the prospect that the plaintiff had otherwise been engaged.

As for the announcement of the sale of the mine to Northern Star Resources, the document attached to the affidavit reveals sale of the mine by the applicant. There is no evidence given by the deponent as to the content of the attached document however for present purposes it may be taken as revealing that the applicant considered that it had some interest in the mine. Whether that interest existed at either the date of the contract or its breach is not disclosed.
My assessment of the evidence of Kennedy is that it does not assist the applicant.
In his affidavit, Green introduces himself as follows:
1.I am a Corporate Counsel of Newmont Mining Services Pty Ltd, a subsidiary of the second defendant … and I am authorised to swear this affidavit on behalf of the first defendant.
2.The facts contained in this affidavit are within my personal knowledge save where otherwise stated where they have been obtained from the source as stated. The facts deposed to in this affidavit are both true and correct to the best of my knowledge, information and belief.
3.…
Company structure
4.At all material times the mine site at Jundee in Western Australia which is the subject of this action was owned and managed by Newmont Yandal Operations Pty Ltd … (Newmont Yandal Operations).
5.…
6.…
7.…
8.From my inquiries and the information I have reviewed and to the best of my knowledge, information and belief, at all material times the site was not directly owned or managed by the first defendant.
Registered Business Name
9.Between 28 August 2009 and 28 May 2012 the business name 'Newmont Asia Pacific' was registered with the Department of Commerce of Western Australia, pursuant to a registration dated 28 August 2009 as shown in a business names extract attached at ONHG1.
10.On or about 28 May 2012 the registration of the business name was transferred to the business name register of the Australian Securities & Investments Commission …
11.From my inquiries and the information I have reviewed and to the best of my knowledge, information and belief, the first defendant:
(a)did not trade under the business name;
(b)was not a party to any unincorporated joint venture which traded under the Business Name or any other name;
(c)was not a party to any unincorporated joint venture which operated the site or which engaged employees on the site;
(d)never entered into any contract with the plaintiff;
(e)…
Green does not give evidence of any period of time during which he was engaged by Newmont Mining Services Pty Ltd. Accordingly, there is scope for doubt that the content of the affidavit is evidence. To the extent that Green would give permissible hearsay there is no evidence as to what is information, from where it has been derived or of belief.
At par 9 Green deposes that between 28 August 2009 and 28 May 2012 Newmont Asia Pacific was a business name registered with the Department of Commerce of Western Australia. I take that information to be incorrect simply because the attachment is clearly a record of the Department of Consumer and Employment Protection for an unspecified period from 28 August 2009.
My assessment of the evidence of Green is that it is of no utility for the purposes of the application.
In his affidavit of 17 May 2017 the plaintiff deposes as follows:
3.Newmont Mining Corporation … is registered in Australia as a foreign company to operate business and owned and operated the Jundee mine site. Newmont Mining Corporation sold the Jundee mine site in 1 July 2014 to Northern Star Resources Limited, evidenced attached at annexure CO1.
4.Newmont Mining Corporation wholly owns enjoys a beneficial ownership and relationship with its subsidiaries. As a result, Newmont owns the corporate email addresses for its employees, and subsidiaries employees as well, which is the same for all staff; employee's first name.last [email protected] and Newmont also owns the domain name 'Newmont' and operates the website, and the server which is hosted in the United States where Newmont has its global headquarter in Denver, Colorado, United States, evidence attached at annexure CO2.
5.Newmont as owner and operator of Jundee mine site is liable for the trespass of my personal belongings on 11 May 2011 at Jundee mine site …
6.Another evidence is the email from Michael Bisset, Group Executive, Human Resources at Newmont Mining Corporation to Ms Dianna Montoya, Executive Assistant at Newmont Mining Corporation; … evidence attached at annexure CO3.
7.…
8.Ms Rubini Ventouras, former Regional Group Executive, Legal Affair at Newmont Mining Corporation sent me a letter dated 27 July 2016 on a Newmont Mining Services Pty Ltd letterhead paper, this goes to show the beneficial ownership and relationship between Newmont and Australian Subsidiaries, attached as annexure 'CO4'.
9.…
10.…
11.…
12.…
13.Newmont Mining Corporation wants to excuse itself from this cause of action which is impossible because they are directly involved and wish to avoid embarrassment that may come as a result of being a founding member of 'Partnering Against Corruption Initiatives'. They owned Jundee mine site and therefore was able to sell Jundee mine site to Northern Star Resources Ltd, evidence attached as annexure 'CO5'.
In his affidavit of 21 September 2017, the plaintiff states that a connection between the applicant and the proceeding is established by its response to a subpoena issued on behalf of the plaintiff to the applicant in action number 1477 of 2014 in this court between the plaintiff and Newmont Mining Services Pty Ltd. I take it that the force of the plaintiff's submission to be along the lines that Newmont Mining Services Pty Ltd had responded to the request from the applicant to attend to locating the documents the subject of the subpoena. Attached to the affidavit, but not introduced into evidence, is a letter from Newmont Mining Services Pty Ltd to the applicant dated 21 July 2017.
Having heard the plaintiff's submissions, it is clear that he opposes the application, however, there is nothing that emerged from his submissions that presents any different case to that put by his pleading. I observe that the plaintiff does not found the prospects that may be open on the pleading that at the material time the first defendant was an owner or operator of the Jundee mine site.
On the case put by the plaintiff in opposition to the application, it is open to consider that the first defendant had some undefined presence at the mine site. Such a proposition would be found in an uncritical assessment of the evidence of the plaintiff relating to its control over email communications of the employees of its subsidiaries and what I take to be the use by the applicant of the letterhead paper of its subsidiaries; the evidence of the sale of the mine and that Green and Kennedy, each employees of subsidiaries of the applicant have been authorised to depose on behalf of the applicant. I would add that I did not understand that the plaintiff put that proposition.
Whether that presence is real or imagined and the extent to which it would accord with reality all to one side, I refer to [12] of these reasons, there is no case put by the plaintiff to constitute the applicant as a party to the agreement between the plaintiff and the second defendant.
The applicant's case for judgment in the claim for breach of contract sought to found submissions that it was not an owner and operator or the owner and operator of the mine site; that the mine site was owned by Newmont Yandal Operations Pty Ltd; that it had not entered into any contract with the plaintiff; and that it had not traded under the name Newmont Asia Pacific. None of those submissions have evidentiary support. I do not recall that in the course of submissions the applicant maintained that the contract for the plaintiff's engagement or employment had been with Integrated Group Ltd. In the event that it did, that proposition was also unfounded.
At the conclusion of the submissions the applicant put the proposition that the evidence in relation to both the corporate structure of which the defendants were part and the connection between the defendants or want of connection between the defendants and the mine site would not be determinative of the issue that it had raised in the application because there was no pleaded case that the plaintiff had been employed by the first defendant at any material time.
In my opinion, the statement of claim does not reveal any case for breach of contract by the applicant. Although the applicant failed in its effort to produce useful evidence to support its case in the application, it is clear that there is no case put against it. I am persuaded that it is appropriate to award judgment to the applicant because the pleading of the claim does not justify it remaining a party to the action.
The pleading of trespass is as follows:
3.Newmont Mining Services Pty Ltd, Newmont Australia Ltd (Now, Newmont Australia Pty Ltd) and Newmont Mining Corporation are jointly liable for … interference with personal goods at the material time.
…
14.When Ms Jil Wilson called the plaintiff on 11 May 2011, she also told the plaintiff to go to Skipper Aviation, Redcliffe to collect his personal belongings. On collecting his personal belonging [sic] on 13 May 2011, the plaintiff noticed a sticker on the cardboard box had the name Ms Gemma Wilson as the person who had packed the plaintiff's personal belongings on 11 May 2011. Newmont Mining Corporation is liable for damages being the owner of Jundee Mine site, which was sold to Northern Stars Resources Ltd on 1 July 2014.
15.On inspecting his personal belonging after receiving the packages from Skipper Aviation on 13 May 2011, the plaintiff noticed a couple of items were missing, personal copy of Newmont Handbook that was issued to the plaintiff during the induction training, rock collections, an address book and a beaded necklace.
16.As a result of the Newmont Asia Pacific's trespass of the personal belonging of the plaintiff, and the pre‑meditative motive, being that the plaintiff personal belonging were hastily packed on 11 May 2011, as the sticker was dated, after the plaintiff had left the Jundee Mine site on 10 May 2011.
17.…
18.…
19.The Newmont Asia Pacific trespassed on the plaintiff properly by removing items without the plaintiff's consent. The missing items that were noticed by the plaintiff are as follows:
…
According to Halsbury, trespass to goods is constituted by an unlawful disturbance of the possession of goods by seizure, removal or by direct act causing damage.
In pars 14 to 19 inclusive the plaintiff refers to Ms Jil Watson, Skippers Aviation and Newmont Asia Pacific. There is no allegation that either defendant or any other person committed any act that would constitute trespass to the plaintiff's goods. It is open to consider that it is implicit that upon termination of the contract the plaintiff’s goods would be removed from where they had been located when he had been engaged. Although the applicant was the owner and/or operator of the mine site, there is nothing to suggest that the goods had ever been at the mine site. There is no allegation that connects the applicant to the process of removal of the goods from wherever they had been located.
Having heard the plaintiff's submissions, I am satisfied that he has pleaded the case of trespass that he maintains in the action. There is no pleading put against the first defendant that would found a case against it.
At par 11 of his affidavit Green deposes:
From my enquiries and the information I have reviewed, and to the best of my knowledge, information and belief, the first defendant:
…
(e)did not arrange for, or have any part in , the removal of the plaintiff's property from the site.
I have already considered the sufficiency of the deposition in the context of dealing with subpars (a) to (d). For the same reasons, the result of consideration given to subparagraph (e) is the same.
The plaintiff has filed no evidence that bears upon the cause of action.
The applicant submitted that in order that it be held responsible for any trespass to the plaintiff's property would depend upon it being contended by the plaintiff that it was somehow directly involved in some particular action in relation to the plaintiff's property that would found the cause of action.
In my opinion the statement of claim does not reveal any case of trespass by the applicant. I am persuaded that it is appropriate to award judgment to the applicant because the pleading of the cause does not justify it remaining a party to the action on that cause.
According to the amended statement of claim filed 15 June 2017, at par 21 the plaintiff pleads violation of his human rights. As such the claim is beyond the scope of the writ it was impermissible for the plaintiff to incorporate the claim within the action. The plaintiff conceded that, for the purposes of the application, he has no claim against the first defendant for violation of human rights.
In my opinion, the context in which the concession was made would justify entry of judgment against the plaintiff.