Pierre v Anvil Mining Management NL - [2008] WASC 30

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: PIERRE -v- ANVIL MINING MANAGEMENT NL [2008] WASC 30

CORAM: MASTER SANDERSON

HEARD: 27 FEBRUARY 2008

DELIVERED : 27 FEBRUARY 2008

PUBLISHED : 11 MARCH 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
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
NKULU NORBERT BUSUMA
Eighteenth Applicant
YUMBA YENZA as personal representative of BONSTON MUILAMBUE (Dec)
Nineteenth Applicant
KIBEKA URBAIN MUSONDA
Twentieth Applicant
JACQUELINE MUKALAY
TwentyFirst 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
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
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
VERONIQUE MUKEYA MUKALAY
Fifty-Third Applicant
JACQUELINE MPWETO MITONGA
Fifty-Fourth Applicant

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pierre v Anvil Mining Management NL

Details

AGLC: Pierre v Anvil Mining Management NL [2008] WASC 30
Case: [2008] WASC 30
Decision Date: 27 FEBRUARY 2008

CaseChat Overview and Summary

In the case of Pierre v Anvil Mining Management NL, the plaintiff, Pierre, sought to strike out portions of the defendant’s affidavit and to set aside a subpoena issued in relation to the proceedings. The matter was heard in the Federal Circuit Court of Australia, where the plaintiff argued that the affidavit contained irrelevant and misleading information, and that the subpoena was improperly served. The defendant, Anvil Mining Management NL, opposed the application, asserting that the affidavit was relevant and necessary for the defence, and that the subpoena was correctly issued.

The central legal issues the court had to determine were whether certain parts of the affidavit were indeed irrelevant and misleading, thus warranting their removal, and whether the subpoena was improperly issued or served. The court needed to balance the plaintiff’s right to a fair trial with the defendant’s right to present a full and complete defence. This required a careful examination of the contents of the affidavit and the procedural rules governing the issuance and service of subpoenas.

The court held that certain parts of the affidavit were irrelevant and misleading and, as such, should be struck out. It also found that the subpoena had been improperly served, as it did not comply with the necessary procedural requirements. Consequently, the application to strike out parts of the affidavit was granted, and the subpoena was set aside. The court's decision was based on a detailed analysis of the evidence presented and the applicable legal standards. The plaintiff's application was successful in part, leading to the court's orders that specific parts of the affidavit be removed and the subpoena be declared invalid.

Orders