Pierre v Anvil Mining Management NL

[2008] WASC 30 (S)

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS
CITATION	:	PIERRE -v- ANVIL MINING MANAGEMENT NL [2008] WASC 30 (S)

CORAM	: MASTER SANDERSON
HEARD	:  27 FEBRUARY 2008 & 29 JULY 2008
DELIVERED	:  27 FEBRUARY 2008
SUPPLEMENTARY
DECISION	:  22 OCTOBER 2008
FILE NO/S	:  CIV 2103 of 2007
BETWEEN	: KUNDA MUSOPELO PIERRE

First Applicant

KALINGA VICTORINE LWANZA as personal
representative of MASOKO SOPHIE KABANGO

(Dec)

Second Applicant

ROGER NWAMBA ILUNGA

Third Applicant

CHAMPO ARNOLD MUMBA

Fourth Applicant

CLEMENTINE KYUNGU NDUBIE MUKEYA as
personal representative of JOSEPH KAPYA
KAYOMBO (Dec)

Fifth Applicant

JEAN CLAUDE MWAMBA MUKALAY as personal
representative of AUGUSTINE TABU MWAMBA
(Dec)
Sixth Applicant

[2008] WASC 30 (S)

JEANNE MASENGO SHIKWILA on her own behalf
and as personal representative of STANISLAS
KABWEBWE KITANIKA (Dec)

Seventh Applicant

KASUNGAMI STEPHANIE KAPIA as personal
representative of LWEMBE KAPIA (Dec)

Eighth Applicant

MISEMPO IDA NGOMBE as personal representative
of MWILADOWE NDEKANDEKA SANDUKU
(Dec)

Ninth Applicant

KASUNGAMI STEPHANIE KAPIA as personal
representative of MWANGE KAPIA (Dec)

Tenth Applicant

NGOY EZEKIEL LUNE WA YUMBA

Eleventh Applicant

LWEMBE NETI KIMPWA as personal representative
of SHIMPUNDU PILATI (Dec)

Twelfth Applicant

BANZA BRANJA N'KULU

Thirteenth Applicant

NGONGWE DAVID KISALA as personal
representative of NGONGWE DAVID +KISALA
(Dec)

Fourteenth Applicant

MULIMBI EMMAN MULIMBI as personal
representative of NYEMBO ELISE MULIMBI (Dec)

Fifteenth Applicant

CHRISTOPHE MUSINGE SAMBA

Sixteenth Applicant

MUKALAY ALBERT KITANIKA
Seventeenth Applicant

[2008] WASC 30 (S)

NKULU NORBERT BUSUMA

Eighteenth Applicant

YUMBA YENZA as personal representative of
BONSTON MUILAMBUE (Dec)

Nineteenth Applicant

KIBEKA URBAIN MUSONDA

Twentieth Applicant

JACQUELINE MUKALAY

Twenty-First Applicant

KIBEKA URBAIN MUSONDA as personal
representative of KIBEKA URBAIN MUSONDA JNR
(Dec)

Twenty-Second Applicant

WILLY MUTONDO

Twenty-Third Applicant

KIBEKA URBAIN MUSONDA as personal
representative of MONGA DONATIEN WA MONGA
(Dec)

Twenty-Fourth Applicant

KIBEKA URBAIN MUSONDA as personal
representative of MUSONDA JENOVIC CONGO
(Dec)

Twenty-Fifth Applicant

KIBEKA URBAIN MUSONDA as personal
representative of MWIKA FABIOLA MUSONDA
(Dec)

Twenty-Sixth Applicant

KIBEKA URBAIN MUSONDA as personal
representative of KYUNGU DAMIEN MURELWA
(Dec)
Twenty-Seventh Applicant

[2008] WASC 30 (S)

KIBEKA URBAIN MUSONDA as personal representative of KALUMBA FRANCAISE KAPONDA (Dec)

Twenty-Eighth Applicant

KIBEKA URBAIN MUSONDA as personal
representative of KALEMBE ABBOTINE KAPULO
(Dec)

Twenty-Ninth Applicant

KIBEKA URBAIN MUSONDA as personal
representative of MUSONDA GIRES CONGO (Dec)

Thirtieth Applicant

IRENE NUNBI WA NUNBI

Thirty-First Applicant

BENOIT KISHINBA NAKOBA

Thirty-Second Applicant

DENISE NAUBYE KASENGESHA

Thirty-Third Applicant

PHILIPPE KASONGO LUPITALO

Thirty-Fourth Applicant

MATTHIEU KALUNGA KILOMBO

Thirty-Fifth Applicant

JEAN PAUL NGOBA MULENGA

Thirty-Sixth Applicant

LOUISA HARI INAONEKANA

Thirty-Seventh Applicant

JACQUELINE KASUBA KYONBA

Thirty-Eighth Applicant

PROSJENINE KYOMBA LUKWESA
Thirty-Ninth Applicant

[2008] WASC 30 (S)

ASTRIDO KISHINBA NDOBA

Fortieth Applicant

CECILE KABELWE KALWA

Forty-First Applicant

CHRISOPHE KAZENBA KANBI

Forty-Second Applicant

BIBI MUTONBO JULUNGA

Forty-Third Applicant

ELIZABETH KIPITA KALONDA
Forty-Fourth Applicant

LEONTINE MITONGA MWABA on her own behalf and as next friend of MWABO MAMGWE MWABA and KAOMBE FRANCISCO MWABA

Forty-Fifth Applicant

IMELAE MWELWA MWAPE

Forty-Sixth Applicant

ASTRIDA KABAGO KYABLA

Forty-Seventh Applicant

ALPHONSHIA MWANTO LUKWOSA

Forty-Eighth Applicant

STANY KABWE KITANIKA on her own behalf and
as personal representative of JEANWE MASENGO
SHIKWILA (Dec)

Forty-Ninth Applicant

CHOTILDE MWANSA KASHEBECE

Fiftieth Applicant

CHARLOTTE LUNUNA MAPESA

Fifty-First Applicant

FRANCOISE KASONGO KYUNGU
Fifty-Second Applicant

[2008] WASC 30 (S)

VERONIQUE MUKEYA MUKALAY

Fifty-Third Applicant

JACQUELINE MPWETO MITONGA

Fifty-Fourth Applicant

LOUISE MWELWA KABULO

Fifty-Fifth Applicant

EVARISTE KABULO KYUPE

Fifty-Sixth Applicant

FAUSTONE MWABWE KABULO

Fifty-Seventh Applicant

BEATRICE KABEYA MIKODBE

Fifty-Eighth Applicant

JEANINE KIREGONA KYENBE

Fifty-Ninth Applicant

ADELE MWAYUMA FARAI on her own behalf and
as personal representative of ULIMWENGU
NOMBELE WILLY and UMA ULIMWENGU
PASCAL

Sixtieth Applicant

MIREILLE KITENGE KALONDA

Sixty-First Applicant

AND

ANVIL MINING MANAGEMENT NL
(ACN 060 478 962)

First Respondent

ANVIL MINING LTD (ARBN 107 912 550)
Second Respondent

[2008] WASC 30 (S)

Catchwords:

Costs - Application by respondents for an order costs be paid by applicants' solicitors - Turns on own facts

Legislation:

Nil

Result:

Costs order made against applicants

Costs order against applicants' solicitors refused

Category: B

Representation:

Counsel:

First Applicant	:	Mr C Prast
Second Applicant	:	Mr C Prast
Third Applicant	:	Mr C Prast
Fourth Applicant	:	Mr C Prast
Fifth Applicant	:	Mr C Prast
Sixth Applicant	:	Mr C Prast
Seventh Applicant	:	Mr C Prast
Eighth Applicant	:	Mr C Prast
Ninth Applicant	:	Mr C Prast
Tenth Applicant	:	Mr C Prast
Eleventh Applicant	:	Mr C Prast
Twelfth Applicant	:	Mr C Prast
Thirteenth Applicant	:	Mr C Prast
Fourteenth Applicant	:	Mr C Prast
Fifteenth Applicant	:	Mr C Prast
Sixteenth Applicant	:	Mr C Prast
Seventeenth Applicant	:	Mr C Prast
Eighteenth Applicant	:	Mr C Prast
Nineteenth Applicant	:	Mr C Prast
Twentieth Applicant	:	Mr C Prast

Twenty-First Applicant : Mr C Prast Twenty-Second Applicant : Mr C Prast

[2008] WASC 30 (S)

Twenty-Third Applicant	:	Mr C Prast
Twenty-Fourth Applicant	:	Mr C Prast
Twenty-Fifth Applicant	:	Mr C Prast
Twenty-Sixth Applicant	:	Mr C Prast
Twenty-Seventh Applicant :	Mr C Prast
Twenty-Eighth Applicant	:	Mr C Prast
Twenty-Ninth Applicant	:	Mr C Prast
Thirtieth Applicant	:	Mr C Prast
Thirty-First Applicant	:	Mr C Prast
Thirty-Second Applicant	:	Mr C Prast
Thirty-Third Applicant	:	Mr C Prast
Thirty-Fourth Applicant	:	Mr C Prast
Thirty-Fifth Applicant	:	Mr C Prast
Thirty-Sixth Applicant	:	Mr C Prast
Thirty-Seventh Applicant	:	Mr C Prast
Thirty-Eighth Applicant	:	Mr C Prast
Thirty-Ninth Applicant	:	Mr C Prast
Fortieth Applicant	:	Mr C Prast
Forty-First Applicant	:	Mr C Prast
Forty-Second Applicant	:	Mr C Prast
Forty-Third Applicant	:	Mr C Prast
Forty-Fourth Applicant	:	Mr C Prast
Forty-Fifth Applicant	:	Mr C Prast
Forty-Sixth Applicant	:	Mr C Prast
Forty-Seventh Applicant	:	Mr C Prast
Forty-Eighth Applicant	:	Mr C Prast
Forty-Ninth Applicant	:	Mr C Prast
Fiftieth Applicant	:	Mr C Prast
Fifty-First Applicant	:	Mr C Prast
Fifty-Second Applicant	:	Mr C Prast
Fifty-Third Applicant	:	Mr C Prast
Fifty-Fourth Applicant	:	Mr C Prast
Fifty-Fifth Applicant	:	Mr C Prast
Fifty-Sixth Applicant	:	Mr C Prast
Fifty-Seventh Applicant	:	Mr C Prast
Fifty-Eighth Applicant	:	Mr C Prast
Fifty-Ninth Applicant	:	Mr C Prast
Sixtieth Applicant	:	Mr C Prast
Sixty-First Applicant	:	Mr C Prast
First Respondent	:	Mr J A Thomson
Second Respondent	:	Mr J A Thomson

[2008] WASC 30 (S)

Solicitors:

First Applicant	:	Slater & Gordon
Second Applicant	:	Slater & Gordon
Third Applicant	:	Slater & Gordon
Fourth Applicant	:	Slater & Gordon
Fifth Applicant	:	Slater & Gordon
Sixth Applicant	:	Slater & Gordon
Seventh Applicant	:	Slater & Gordon
Eighth Applicant	:	Slater & Gordon
Ninth Applicant	:	Slater & Gordon
Tenth Applicant	:	Slater & Gordon
Eleventh Applicant	:	Slater & Gordon
Twelfth Applicant	:	Slater & Gordon
Thirteenth Applicant	:	Slater & Gordon
Fourteenth Applicant	:	Slater & Gordon
Fifteenth Applicant	:	Slater & Gordon
Sixteenth Applicant	:	Slater & Gordon
Seventeenth Applicant	:	Slater & Gordon
Eighteenth Applicant	:	Slater & Gordon
Nineteenth Applicant	:	Slater & Gordon
Twentieth Applicant	:	Slater & Gordon

Twenty-First Applicant : Slater & Gordon Twenty-Second Applicant : Slater & Gordon Twenty-Third Applicant : Slater & Gordon

Twenty-Fourth Applicant	:	Slater & Gordon
Twenty-Fifth Applicant	:	Slater & Gordon
Twenty-Sixth Applicant	:	Slater & Gordon
Twenty-Seventh Applicant :	Slater & Gordon
Twenty-Eighth Applicant	:	Slater & Gordon
Twenty-Ninth Applicant	:	Slater & Gordon
Thirtieth Applicant	:	Slater & Gordon
Thirty-First Applicant	:	Slater & Gordon
Thirty-Second Applicant	:	Slater & Gordon
Thirty-Third Applicant	:	Slater & Gordon
Thirty-Fourth Applicant	:	Slater & Gordon
Thirty-Fifth Applicant	:	Slater & Gordon
Thirty-Sixth Applicant	:	Slater & Gordon
Thirty-Seventh Applicant	:	Slater & Gordon
Thirty-Eighth Applicant	:	Slater & Gordon
Thirty-Ninth Applicant	:	Slater & Gordon
Fortieth Applicant	:	Slater & Gordon
Forty-First Applicant	:	Slater & Gordon

[2008] WASC 30 (S)

Forty-Second Applicant	:	Slater & Gordon
Forty-Third Applicant	:	Slater & Gordon
Forty-Fourth Applicant	:	Slater & Gordon
Forty-Fifth Applicant	:	Slater & Gordon
Forty-Sixth Applicant	:	Slater & Gordon
Forty-Seventh Applicant	:	Slater & Gordon
Forty-Eighth Applicant	:	Slater & Gordon
Forty-Ninth Applicant	:	Slater & Gordon
Fiftieth Applicant	:	Slater & Gordon
Fifty-First Applicant	:	Slater & Gordon
Fifty-Second Applicant	:	Slater & Gordon
Fifty-Third Applicant	:	Slater & Gordon
Fifty-Fourth Applicant	:	Slater & Gordon
Fifty-Fifth Applicant	:	Slater & Gordon
Fifty-Sixth Applicant	:	Slater & Gordon
Fifty-Seventh Applicant	:	Slater & Gordon
Fifty-Eighth Applicant	:	Slater & Gordon
Fifty-Ninth Applicant	:	Slater & Gordon
Sixtieth Applicant	:	Slater & Gordon
Sixty-First Applicant	:	Slater & Gordon
First Respondent	:	Clayton Utz
Second Respondent	:	Clayton Utz

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

Pierre v Anvil Mining Management NL [2008] WASC 30

MASTER SANDERSON [2008] WASC 30 (S)

1. MASTER SANDERSON: By application filed 19 May 2008, the applicants sought leave to discontinue the application for pre-action discovery. The summons also sought an order that 'costs of the application be provided for'. At the hearing of the application, the applicants proposed that the costs order should be that they (the applicants) pay the respondents' costs to be taxed. The respondents were happy enough for leave to be granted to discontinue the application, but they were not content with the applicants' proposed costs order. They sought an order in the following terms:

   1.          The applicants and their solicitors Slater & Gordon Limited pay the costs of the first and second respondents in relation to the application including reserved costs and the costs of today on a jointly and severally liable basis.

   2.          The costs referred to in order 2 be taxed on an indemnity basis unless otherwise agreed.

2              At the hearing of the application, the applicants relied on an affidavit

of Patricia Grylls sworn 16 May 2008. The respondents took objection to certain parts of that affidavit. No notice of those objections had been given to the applicants' solicitors prior to the hearing. I therefore allowed the applicants to file a further affidavit. This they did. Ms Grylls' further affidavit was sworn on 8 August 2008.

3              The background to the application itself is set out in my reasons:

Pierre v Anvil Mining Management NL [2008] WASC 30. I will not set out again the matters at issue. It is sufficient if I say that while the application itself was for pre-action discovery, proceedings were derailed over, firstly, whether the costs agreement between the applicants and their solicitors ought be disclosed and, secondly, whether the terms of that costs agreement would open the applicants' solicitors to claims of champerty and maintenance. I should make the point that the second of these two issues was never ventilated to any extent. But I did order that the costs agreement should be disclosed and it was the terms of that costs agreement which led the respondents' solicitors to make the application for the costs orders set out above.

4              Turning then to the evidence of Ms Grylls, she is the executive

director of Rights and Accountability in Development (RAID). RAID's principal aim is the protection and monitoring of human rights in developing countries, particularly in relation to the activities of corporations and businesses. In other words, it is a non-government organisation (NGO) aiming to protect the interests of the poor and

MASTER SANDERSON [2008] WASC 30 (S)

dispossessed. It is active in many countries including the Democratic Republic of the Congo (DRC). In the DRC it acts in conjunction with various other NGOs - doubtless all organisations having similar aims and making the best use of available resources.

1. Ms Grylls says that following the hearing on 27 February 2008, Slater & Gordon requested RAID to arrange to visit each of the applicants to update them on the case and obtain reconfirmation of their instructions. In early March 2008, Ms Grylls visited two of the original claimants living in Lubumbashi and obtained written confirmation of those instructions. She also paid a preliminary visit to Kilwa. Ms Grylls says that on 1 April 2008, she advised the applicants' solicitors that two of her colleagues had been prevented from flying to Kilwa to interview the applicants. Fifty-eight of the 61 applicants live in Kilwa. It was the Congolese authorities who prevented Ms Grylls' colleagues from taking the flight.

6              Ms Grylls then details the sequence of events which led to

permission to travel to Kilwa being denied. It became apparent to Ms Grylls that at no time in the foreseeable future was anyone from any NGO likely to be permitted to fly to Kilwa. This effectively meant that instructions could not be obtained.

7              Furthermore, in early April, Ms Grylls was advised that two of her

colleagues in a NGO with whom she was working had received death threats. These death threats were anonymous but were taken seriously. As a consequence of all these matters, Ms Grylls harboured real doubts about the prospect of harm being done to the claimants. All this material is taken from Ms Grylls' first affidavit.

8              Ms Grylls' second affidavit rectifies some technical defects in the

earlier document and expands significantly on her earlier evidence. But the thrust of that evidence is the same. The government of the DRC had prevented representatives of NGOs getting to Kilwa and it was unlikely that any such travel would be permitted in the near future. Ms Grylls also says (at par 43 of her second affidavit) that the 'three claimants with whom I was able to make contact had asked me to convey to SAG [that is, Slater & Gordon] that in the circumstances, they instructed the application be discontinued'. The situation is not entirely clear and Ms Grylls has been unable to obtain specific instructions from all of the applicants, but it is reasonable to suppose that the instructions to proceed have been withdrawn.

MASTER SANDERSON [2008] WASC 30 (S)

9              In the circumstances, I am not satisfied that a costs order should be

made against the applicants' solicitors. In my view, they have acted in a proper and appropriate manner. There has been no final determination as to the validity or otherwise of the costs agreement. I am certainly not in a position to conclude that the costs agreement is, in its form, impermissible to an extent that the applicants' solicitors are at fault.

10            It must be remembered that conducting litigation such as this with

claimants who are under considerable disadvantage, not least because they are located out of the jurisdiction, requires a different approach. To penalise the applicants' solicitors for taking that approach when it has not been demonstrated that they acted improperly would be inappropriate.

11            Moreover, there does appear to have been valid and proper reasons

for the applicants discontinuing these proceedings. The evidence of Ms Grylls is uncontradicted and it is to the effect that the applicants would have been placing their own personal safety at risk if the matter had proceeded. I should hasten to say that there is nothing in the evidence to suggest that the respondents were in any way involved in what might be called a campaign of harassment in relation to the applicants. But the fact remains Ms Grylls, a person obviously experienced in operating in developing countries such as the DRC, was sufficiently concerned to advise that the application be brought to an end.

12            In the circumstances, then, the order will be that the applicants pay

the respondents' costs of the application, including the reserved costs, to
be taxed.