Pilbara Iron Ore Pty Ltd v Ammon
[2008] WASCA 202
•9 OCTOBER 2008
PILBARA IRON ORE PTY LTD -v- AMMON [2008] WASCA 202
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 202 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:59/2008 | 18 SEPTEMBER 2008 | |
| Coram: | WHEELER JA BEECH AJA | 9/10/08 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted on ground 1(a), leave otherwise refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | PILBARA IRON ORE PTY LTD (ACN 100 410 295) DEREK NOEL AMMON DIRECTOR GENERAL OF MINES |
Catchwords: | Practice and procedure Proceedings in another court with concurrent jurisdiction Whether stay of proceedings in Supreme Court should be ordered Whether any substantial injustice flows from order granting stay of Supreme Court proceedings Whether superior court with concurrent jurisdiction should determine complex issues in preference to inferior court Mining Act 1978 (WA) Jurisdiction of Warden Whether proceedings arise in respect of the title to or ownership of a mining tenement |
Legislation: | Mining Act 1978 (WA) s 132(1) |
Case References: | Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Australian Associated Motor Insurers Ltd v NRMA Insurance Ltd [2002] FCA 1061; (2002) 124 FCR 518 Boyd v Halstead; ex parte Halstead [1985] 2 Qd R 249 Global Doctor Ltd v Hodgkinson [2003] WASCA 119; (2003) 28 WAR 286 House v The King (1936) 55 CLR 499 L & W Developments Pty Ltd v Della [2003] NSWCA 140; (2003) 135 IR 118 O'Grady v Northern Queensland Co Ltd (1990) 169 CLR 356 Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd (1992) 34 FCR 287 Tiufino v Warland [2000] NSWCA 110; (2000) 50 NSWLR 104 Wiltrading (WA) Pty Ltd v Lumley General Insurance Ltd [2005] WASCA 106; (2005) 30 WAR 290 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- BEECH AJA
- Appellant
AND
DEREK NOEL AMMON
First Respondent
DIRECTOR GENERAL OF MINES
Second Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : TEMPLEMAN J
Citation : PILBARA IRON ORE PTY LTD v AMMON [2008] WASC 108
File No : CIV 1310 of 2008
(Page 2)
Catchwords:
Practice and procedure - Proceedings in another court with concurrent jurisdiction - Whether stay of proceedings in Supreme Court should be ordered - Whether any substantial injustice flows from order granting stay of Supreme Court proceedings - Whether superior court with concurrent jurisdiction should determine complex issues in preference to inferior court
Mining Act 1978 (WA) - Jurisdiction of Warden - Whether proceedings arise in respect of the title to or ownership of a mining tenement
Legislation:
Mining Act 1978 (WA) s 132(1)
Result:
Leave to appeal granted on ground 1(a), leave otherwise refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr G R Donaldson SC & Mr S K Dharmananda
First Respondent : Mr P J Hannan & Mr G M Irving
Second Respondent : No appearance
Solicitors:
Appellant : Blakiston & Crabb
First Respondent : Dwyer Durack
Second Respondent : No appearance
(Page 3)
Case(s) referred to in judgment(s):
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Australian Associated Motor Insurers Ltd v NRMA Insurance Ltd [2002] FCA 1061; (2002) 124 FCR 518
Boyd v Halstead; ex parte Halstead [1985] 2 Qd R 249
Global Doctor Ltd v Hodgkinson [2003] WASCA 119; (2003) 28 WAR 286
House v The King (1936) 55 CLR 499
L & W Developments Pty Ltd v Della [2003] NSWCA 140; (2003) 135 IR 118
O'Grady v Northern Queensland Co Ltd (1990) 169 CLR 356
Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd (1992) 34 FCR 287
Tiufino v Warland [2000] NSWCA 110; (2000) 50 NSWLR 104
Wiltrading (WA) Pty Ltd v Lumley General Insurance Ltd [2005] WASCA 106; (2005) 30 WAR 290
(Page 4)
1 WHEELER JA: I agree with Beech AJA.
BEECH AJA:
Introduction
2 The appellant, Pilbara Iron Ore Pty Ltd (PIO), seeks leave to appeal from an order of a judge of the Supreme Court staying proceedings in that court. The ground for the stay was the existence of related proceedings in the Warden's Court.
3 The central issues in this appeal are:
(a) does the Warden's Court have jurisdiction?
(b) are the issues the same in the two proceedings?
(c) did the primary judge err in the exercise of his discretion to order a stay?
4 For the reasons that follow, I would grant leave to appeal only in respect of ground 1(a) but would dismiss that ground.
5 I will set out the background facts and outline the primary judge's reasons before turning to these issues.
Background
6 On 1 April 2008 PIO commenced an action in the Supreme Court by a writ indorsed with a statement of claim (the Action). The defendants in the Action are Mr Derek Ammon and the Director General of Mines (the Director).
7 The statement of claim pleads that PIO and Mr Ammon entered into an agreement titled Mindy Mindy Farmin and Joint Venture Heads of Agreement (the Agreement).
8 It is pleaded that cl 4.5 provided that PIO could acquire an 80% joint venture interest in the joint venture property on completing a feasibility study during the earning period ('joint venture interest', 'joint venture property' and 'earning period' are all defined in the Agreement). The joint venture property is defined to include tenement E47/1140 (the Tenement).
9 In par 10 of the statement of claim PIO pleads that it provided a feasibility study to Mr Ammon on 25 January 2008, which was during the earning period.
(Page 5)
10 PIO pleads that it has thereby acquired an 80% beneficial interest in the Tenement and is entitled to a transfer of an 80% interest in the Tenement.
11 Mr Ammon applied for a stay of the Supreme Court Action. As I have mentioned, the foundation for that application was proceedings which had been commenced by Mr Ammon in the Warden's Court.
12 On 18 March 2008 Mr Ammon filed Plaint KR1/078 (the Plaint). PIO is named as the respondent to the Plaint. Because the content and scope of the Plaint are central to some of the issues in this appeal it is convenient to set it out in full. The Plaint was in the following terms:
The plaintiff [Mr Ammon] claims that:
(c) 1. The plaintiff is the beneficial owner of exploration licence 47/1140 ('Tenement').
2. The plaintiff and the defendant [PIO] are parties to the Mindy Mindy Farmin and Joint Venture Heads of Agreement dated 3 September 2002 which deals with the Tenement ('Agreement').
3. Pursuant to:
(a) clause 4.2 of the Agreement, the defendant was to provide the plaintiff with a completed feasibility study on the Tenement by no later than 29 January 2008;
(b) clause 4.5 of the Agreement, if the defendant completed a feasibility study before 29 January 2008 then it is deemed to have acquired from the plaintiff an 80% interest in the Joint Venture;
(c) clause 4.4 of the Agreement, if the defendant failed to complete a feasibility study by 29 January 2008 then it is deemed to have withdrawn from the Joint Venture;
(d) clause 15.2 of the Agreement, upon a withdrawal or deemed withdrawal from the Agreement, the withdrawing participant shall thereupon absolutely forfeit and be deemed to have assigned to the other participant all its joint venture interest.
4. The defendant did not provide the plaintiff with a completed feasibility study by 29 January; and, the defendant is therefore deemed to have withdrawn from the Joint [Venture] as at that date.
5. On or about 22 February 2008, the defendant lodged with the Department of Industry and Resources a Power of Attorney
- No. 10265H ('POA') purporting to rely on clause 6.9 of the Agreement. The plaintiff did not authorise the defendant to lodge the POA and [the] defendant did not notify the plaintiff prior to lodging the POA.
- 6. On or about 11 March 2008, the defendant lodged a transfer with the Department of Industry and Resources [purporting] to transfer 80% of the Tenement to itself ('Transfer') relying on the POA and the Agreement as authority. The plaintiff did not authorise the defendant to lodge the transfer and the defendant cannot rely on the terms of the Agreement to lodge the transfer as the defendant has withdrawn from the Agreement.
and asks:-
(d) 1. A declaration from the Wardens Court that:
(a) the defendant is deemed to have withdrawn from the Joint Venture;
(b) Power of Attorney No. 10265H is invalid; and
(c) the transfer lodged by the defendant on 11 March 2008 to transfer 80% of the Tenement to itself is invalid.
2. An injunction restraining the Registrar from registering the transfer.
3. An injunction restraining the defendant, its servants, workmen and agents, from representing that it:
(a) has any right or interest in exploration licence 47/1140;
(b) holds a power of attorney to sign on behalf of the plaintiff to do everything necessary to maintain exploration licence 47/1140; and
(c) is the Manager of the Joint Venture Operations in relation to exploration licence 47/1140.
3. Any other order the Court may deem necessary.
4. Costs in any event.
13 On 3 April 2008 the Plaint came before the Mining Warden on Mr Ammon's application to restrain the registration of the transfer lodged by PIO. PIO applied for a stay of the interlocutory proceedings on the grounds of the Supreme Court Action. The Warden refused the stay, granted an interlocutory injunction restraining registration of the transfer, and joined the Director as a party.
(Page 7)
14 In his reasons, the Warden observed that both the proceedings before him and the Action in the Supreme Court appeared to revolve around a single issue, namely whether or not PIO had complied with cl 4.2 and cl 4.5 of the agreement by providing a feasibility study to Mr Ammon by no later than 29 January 2008.
15 By an amended notice of motion, originally filed on 11 April 2008, Mr Ammon applied for a stay of the Action pursuant to O 20 r 19(1)(d) of the Rules of the Supreme Court 1971 (WA)or alternatively under the inherent jurisdiction of the court.
16 The primary judge upheld Mr Ammon's application. PIO seeks leave to appeal against that decision. On 25 June 2008 it was ordered that the application for leave to appeal be heard together with the appeal.
Reasons for decision
17 The reasons of the learned primary judge may be summarised as follows.
18 His Honour stated the background and history of the matter. He then dealt with the submission by counsel for PIO that the Warden's Court had no jurisdiction to deal with the matter before it. His Honour set out the terms of s 132(1) of the Mining Act 1978 (WA) which delineates the jurisdiction of the Warden's Court (I will set out that section later in these reasons). His Honour then applied the summary of Barker J in Global Doctor Ltd v Hodgkinson [2003] WASCA 119; (2003) 28 WAR 286 (applying the decision of the High Court in O'Grady v Northern Queensland Co Ltd (1990) 169 CLR 356):
It follows, in my view, that whether one approaches expressions such as 'in relation to' or 'in respect of' as having the effect that a connection must be 'not so exiguous as to be insignificant' (Brennan CJ) or not 'to be remote and merely incidental' (Brennan CJ and McHugh J) or 'not merely an incidental connexion' (Toohey and Gaudron JJ), there must exist a sufficient connection between a proceeding in question and the touchstones of jurisdiction set out in s 132(1) of the Mining Act [57].
19 The primary judge's conclusions in relation to the jurisdiction issue were as follows:
In my view, despite the way the claims for relief have been formulated in the plaint, the issue for determination in the Warden's Court is whether or not PIO has earned an 80% interest in the tenement. I therefore consider that there is more than a connection between the proceeding 'and the touchstones of jurisdiction': in my view, the issue falls squarely within
(Page 8)
- s 132(1)(b) of the Mining Act, being a dispute as to the title to and ownership of the tenement. There is nothing in that provision which limits the nature of the dispute relating to title or ownership which may be determined in the Warden's Court [20].
20 His Honour then turned to the question of whether the Supreme Court action was an abuse of process.
21 After referring to authorities concerning abuse of process, his Honour concluded that in considering whether there has been an abuse of process, it is necessary to balance the private interests of the parties against public interest considerations.
22 It was common ground between the parties that the Action and the Plaint should not both proceed. There had, at that stage, been no application by PIO to stay the Plaint. His Honour observed that, that being so, if he did not stay the Supreme Court Action 'it seems that it must inevitably constitute an abuse of process because of the duplication of effort necessarily involved' [27]. That observation is the subject of ground 2.
23 His Honour then made reference to the submission of PIO that the question of a stay should turn on the factors identified by Lockhart J in Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd (1992) 34 FCR 287. In that case, proceedings involving similar issues were on foot in the Federal Court of Australia and in the High Court of New Zealand. The factors relevant to whether the Australian proceedings should be stayed were said to include the following:
(a) Which proceeding was commenced first.
(b) Whether the termination of one proceeding is likely to have a material effect on the other.
(c) The public interest.
(d) The undesirability of two courts competing to see which of them determines common facts first.
(e) Consideration of circumstances relating to witnesses.
(f) Whether work done on pleadings, particulars, discovery, interrogatories and preparation might be wasted.
(g) The undesirability of substantial waste of time and effort if it becomes a common practice to bring actions in two courts involving substantially the same issues.
(Page 9)
- (h) How far advanced the proceedings are in each court.
(i) The law should strive against permitting multiplicity of proceedings in relation to similar issues.
(j) Generally balancing the advantages and disadvantages to each party.
The primary judge proceeded to consider the case by reference to these factors.
24 His Honour considered the submission by PIO that because the Director was not joined in the Plaint until after the commencement of the Supreme Court action, the Plaint should not be regarded as having been commenced first. His Honour rejected that submission, stating that proceedings should be taken as having been commenced on the date they are filed, even though other parties may be added later [30]. Moreover, his Honour observed that the joinder of the Director was really only a formality and that, as might have been expected, the Director had filed a notice of intention to abide by the warden's decision. Those conclusions are the subject of ground 3(i).
25 His Honour next considered a number of matters which he found to be relevant to a consideration of the public interest. First, the fact that Parliament has established the Warden's Court as a specialist court suggests that the public interest was perceived to be best served by the resolution of such disputes in that court [32]. Further, his Honour stated that there is a public interest in permitting a party who has chosen to litigate in a particular forum to continue where that party began [33].
26 At [35] his Honour observed that it would create a dangerous precedent if matters in the Warden's Court could be removed to the Supreme Court by the simple expedient of commencing a parallel action. That observation is the subject of ground 3(ii).
27 His Honour then concluded that he could see no advantage or disadvantage to either party whichever proceeding was maintained. However, his Honour thought that it would be advantageous to both parties to have the issue tried in the Warden's Court because he considered 'that the Wardens are well qualified to answer the question [of] whether or not a document said to be a feasibility study in relation to a mining tenement, does indeed answer that description' [39]. That conclusion is the subject of ground 3(iii).
(Page 10)
28 For those reasons, the primary judge concluded that to permit the Supreme Court action to proceed would be an abuse of process and ordered that it be stayed.
Grounds of appeal
29 The grounds of appeal are in the following terms.
1. The primary judge erred in law:
(a) in finding that the Plaint KR1/078 ('the Plaint') was a plaint that could be heard or determined by a Warden's Court pursuant to s 132(1) Mining Act 1978 (WA); and
(b) in concluding that the matters before the Warden's Court in the Plaint were the same as the matters in Supreme Court proceedings CIV 1310 of 2008 ('Action').
Particulars
- The primary judge concluded that 'despite the way the claims for relief have been formulated in the plaint' the issue for determination in the Plaint was whether the appellant had earned its interest in the tenement, in circumstances where the terms of Plaint should have been held to be determinative of the matters raised in the Plaint.
Particulars
- (i) The appellant submitted that the Warden's Court did not have jurisdiction and that the Action and the Plaint did not deal with the same subject matter.
(ii) The appellant submitted that both actions should not continue and that if the Action were to continue, the Warden's Court would stay its hand.
(iii) There was no basis for the view that if the Action were not stayed, 'it must inevitably constitute an abuse of process'.
3. The primary judge erred in fact and in law in concluding that, in view of the various factors affecting the proceedings between the parties, to permit the Action to proceed would be an abuse of process.
(Page 11)
- (i) The primary judge found that an improperly initiated action should still be viewed as having been properly commenced upon joinder of a party at a later date.
(ii) The primary judge erred in taking into account the ultimate consequence of allowing the Action to proceed upon the capacity of parties to remove matters into the Supreme Court by the 'simple expedient of commencing a parallel action' where the Warden's Court had no jurisdiction.
(iii) The primary judge erred in fact in concluding that the Warden's Court was 'well qualified' or, if this was the finding, better qualified than this Honourable Court to determine whether a 'feasibility study' met the contractual description of 'feasibility study' in a contractual instrument (footnotes omitted).
30 I will deal with each ground in turn.
Ground 1
31 There are two limbs to ground 1. The first limb contends that the learned primary judge erred in concluding that the Warden's Court had jurisdiction to determine the matters raised in the Plaint. The second limb contends that the primary judge erred in concluding that the issues raised in the Plaint were the same as the issues raised in the action. The common element of the two limbs is that they complain of the characterisation by the primary judge of the issues raised by the Plaint.
32 I will begin with the question of whether the Warden's Court has jurisdiction to determine the matters raised in the Plaint.
Ground 1(a): did the Warden's Court have jurisdiction?
33 Section 132 of the Mining Act 1978 (WA) confers jurisdiction on a Warden's Court to hear and determine matters within the categories stated in that section. Section 132(1) is in the following terms:
(1) A warden's court has jurisdiction to hear and determine all such actions, suits and other proceedings cognizable by any court of civil jurisdiction as arise in respect of -
(a) the area, dimensions, or boundaries of mining tenements;
- (b) the title to, and ownership or possession of, mining tenements or mining products;
(c) water to be used for mining and any questions or disputes relating thereto;
(d) trespass or encroachment upon, or injuries to, mining tenements;
(e) specific performance of contracts relating to mining tenements or mining;
(f) transfers and other dispositions of, and charges upon, mining tenements;
(g) trusts relating to mining tenements or mining;
(h) partnerships relating to mining tenements or mining, the existence, formation, and dissolution thereof, the taking of accounts connected therewith, the contribution of the partners as between themselves and the determination of all questions arising between the partners;
(i) contribution by or between persons holding joint or several interests in mining tenements towards rent or other expenses in relation thereto;
(j) encroachment or trespass upon, or injury to, land by reason of mining, whether the land is held under this Act or otherwise;
(k) encroachments upon, injuries to, and matters affecting roads, tramways, railroads or other property of whatever kind constructed, held or occupied under his Act;
(l) the partition, sale, disposal, or division of any mining property, or the proceeds thereof, held by 2 or more persons having conflicting interests therein,
- and generally all rights claimed in, under or in relation to any mining tenement or purported mining tenement, or relating to any matter in respect of which jurisdiction is under any provision of this Act conferred upon the warden's court.
34 No criticism is made of the statement of principle by the primary judge in relation to s 132(1). The parties agree that his Honour rightly adopted the approach stated by Barker J in Global Doctor v Hodgkinson, set out earlier in these reasons.
(Page 13)
35 The appellant's submissions criticise the application of that principle to the facts and circumstances of the case before the primary judge. In particular, the appellant's submissions criticise the characterisation by the primary judge of the issues raised by the Plaint. The appellant alleges that the primary judge erred in finding that 'despite the way the claims for relief have been formulated in the Plaint, the issue for determination in the Warden's Court is whether or not PIO has earned an 80% interest in the tenement.'
36 For the reasons which follow, I do not accept that submission.
37 The appellant's submissions focus attention on the form of relief claimed in the Plaint. The appellant's submissions characterise the relief sought by Mr Ammon in the Plaint as seeking to invalidate forms of transfer or a power of attorney, and to restrain action in respect of them. The claim for a declaration that PIO is deemed to have withdrawn from the joint venture is said to be a matter of interpretation of the Agreement relating only consequentially, not significantly, to a mining tenement.
38 I do not accept that, as a matter of substance, the issues raised by the Plaint can be characterised as being so limited as is invited by the appellant's submissions.
39 Whether the Warden's Court has jurisdiction is not to be determined by consideration of the prayer for relief in the Plaint, divorced from the facts claimed to give rise to the right to relief. The facts and matters alleged in the Plaint to give rise to the plaintiff's entitlement to relief have been set out earlier in these reasons. The nub of those alleged facts is that PIO did not provide Mr Ammon with a completed feasibility study by 29 January 2008, with the result that PIO was therefore deemed to have withdrawn from the joint venture as at that date.
40 In order to determine whether Mr Ammon is entitled to all or any of the relief sought in the Plaint it will be necessary for the Warden's Court to determine whether PIO provided a feasibility study to Mr Ammon by 29 January 2008, and consequently whether PIO is deemed to have withdrawn from the joint venture agreement. As claimed in par 3 of the Plaint, if PIO completed a feasibility study before 29 January 2008 it is deemed to have acquired from Mr Ammon an 80% interest in the joint venture property, including the Tenement. Only if the issue as to whether a feasibility study was provided by 29 January 2008 is determined in favour of Mr Ammon would he be entitled to the declaration claimed in
(Page 14)
- par 1(a) of the prayer for relief, that PIO is deemed to have withdrawn from the joint venture, and the injunction claimed in prayer 3.
41 That is reinforced by the terms of PIO's response to the Plaint. In its response PIO says, in substance, that:
(a) it completed a feasibility study and provided it to Mr Ammon before 29 January 2008;
(b) it has thereby acquired an 80% beneficial interest in the Tenement; and
(c) Mr Ammon has wrongfully refused to execute a transfer of PIO's 80% interest in the Tenement.
42 In substance, determination of the Plaint requires determination of which of two alternatives apply. PIO either has or has not provided a feasibility study by 29 January 2008. If it has not (as claimed in the Plaint), PIO is deemed to have withdrawn from the Agreement. Conversely, if PIO has provided the feasibility study (as claimed in PIO's response), it has earned an 80% interest in the Tenement. In that light, there is no error in the primary judge's statement that the determination of the Plaint requires determination of whether or not PIO has earned an 80% interest in the Tenement.
43 If PIO is deemed to have withdrawn from the Agreement then, as Mr Ammon claims, by operation of cl 15.2 of the Agreement (pleaded in par 3(d) of the Plaint), PIO thereupon absolutely forfeits and is deemed to have assigned to Mr Ammon its joint venture interest. As I have said, 'joint venture interest' is defined to include the Tenement.
44 It seems to me to follow from this that the Warden's Court had jurisdiction in respect of the proceedings commenced by the Plaint by operation of s 132(1)(b). This is because the proceedings arise in respect of the title to, or ownership or possession of, the Tenement. The connection between the proceedings and the question of title to the Tenement is not insignificant or incidental but is direct and sufficient in the sense used by Barker J in Global Doctor v Hodgkinson. It also seems to me to follow that the Warden's Court has jurisdiction in respect of the proceedings commenced by the Plaint under s 132(1) in that these proceedings arise in respect of 'rights claimed in, under or in relation to' the Tenement.
45 The appellant relies upon the decision of the High Court in O'Grady v Northern Queensland Co Ltd (1990) 169 CLR 356. In that case, the
(Page 15)
- plaintiff sought a declaration that a joint venture agreement between himself and a company for the conduct of mining operations on a mining lease had been determined, and an order that the defendant re-transfer its registered ownership in the mining lease the subject of the agreement. The defendant counterclaimed, seeking a declaration that the plaintiff's purported rescission of the joint venture agreement was invalid, and an order that the plaintiff appoint representatives to a committee under the agreement.
46 Section 80 of the Mining Act 1968 (Qld) provided relevantly that the Warden's Court had exclusive jurisdiction in respect of an action 'arising in relation to mining' or 'with respect to any matter arising between miners in relation to mining'. It was not in issue that the plaintiff's claim fell within the jurisdiction of the Warden's Court. However, the High Court held that the company's counterclaim did not fall within the jurisdiction of the Warden's Court.
47 The counterclaim for an order that the parties 'designate their representatives to the joint venture committee' was said to have only an incidental rather than a direct connection with mining or a mining tenement; see (374) (Toohey and Gaudron JJ, Dawson J agreeing).
48 Toohey and Gaudron JJ observed that although the agreement in question concerned a mineral lease, it was the validity of a purported rescission of the agreement and the appointment of a joint venture committee that was directly at issue in the counterclaim (375). The most that could be said is that a matter in relation to mining may arise out of the counterclaim. It could not be said that there was a presently existing matter in relation to mining.
49 Section 132 of the Mining Act 1978 (WA) does not define the jurisdiction of the Warden's Court with respect to 'matters' as the Queensland legislation did. In WA it is enough that the proceedings arise 'in respect of' one or more of the categories of subject matter.
50 I do not consider that O'Grady requires or supports conclusions contrary to those I have stated earlier. O'Grady was concerned with legislation in materially different terms. Moreover, the joint venture agreement that was the foundation of the claims and counterclaims in O'Grady is very different in effect from the Agreement in the present case. Further, the claims and counterclaims in O'Grady were of a different character to those made in the Plaint, and bore a different relation to the question of title to the tenements. In this case, because of
(Page 16)
- the provisions in the Agreement creating the two alternative consequences of PIO providing or not providing a feasibility study by 29 January 2008, the claim in the Plaint is, in my opinion, directly or significantly connected to the question of title to the Tenement. That question is, is PIO entitled to an 80% joint venture interest?
51 For these reasons, while I would grant leave in respect of ground 1(a), that ground fails.
Ground 1(b): Are the issues the same in the Plaint and in the Action?
52 By this ground, the appellant pleads that the primary judge erred in characterising the issues in the Action and the Plaint as being the same.
53 It is, I think, fair to say that the issues in the Plaint and the issues in the Action are not identical. Consideration of the terms of the Plaint and the statement of claim in the Action suggest that some additional issues arise in the Plaint that do not arise in the Action. In particular, the Plaint complains of the lodging by PIO of a power of attorney, and a transfer executed by PIO as transferor purportedly pursuant to that power of attorney.
54 Nonetheless, for the reasons stated earlier, it is my opinion that the central issue in both actions is the same: Did PIO provide a feasibility study by 29 January 2008 and thereby earn an 80% interest in the Tenement, or did it fail to do so, with the consequence that it is deemed to have withdrawn from the Agreement? I think that is how the primary judge's reasons should be understood. In any event, even if what his Honour said is read more literally, in my opinion the statement by the learned primary judge that the issues in the Plaint and the Action are the same does not reveal any error which would make a difference to the determination of the application before his Honour, or which would call for a grant of leave to appeal.
Ground 2
55 Ground 2 complains of a statement by the primary judge that that if the Action was not stayed 'it must inevitably constitute an abuse of process because of the duplication of effort necessarily involved' [27]. However, that statement was prefaced by the words 'it seems that'. Moreover, his Honour did not make that observation as a reason for his decision to grant the stay. Rather, he proceeded to consider the factors identified in Sterling Pharmaceuticals, consistent with the submission of counsel for PIO. See [27] and following of the primary judge's reasons.
(Page 17)
56 The parties agreed that the primary judge was correct to approach the application by reference to the factors identified in Sterling Pharmaceuticals; see also L & W Developments Pty Ltd v Della [2003] NSWCA 140;(2003) 135 IR 118 [47] - [58].
57 For those reasons, I would refuse leave in respect of ground 2.
Ground 3 : Was the primary judge's discretionary weighing of factors attended by error?
58 By ground 3, read with its particulars, the appellant contends that the primary judge made three errors in the weighing of factors in the exercise of his discretion. I will deal with each of them in turn.
59 First, the appellant contends that the primary judge erred in proceeding on the footing that the Plaint had been commenced before the Action when the Director had not been joined in the Plaint until after the commencement of the Action.
60 I do not accept that submission. The Director was not a necessary party for all of or even substantially all of the claims made by Mr Ammon in the Plaint. The Director was a necessary party only in respect of the claim in par 2 of the prayer, being for an injunction against the Director (mistakenly referred to as the Registrar).
61 In my opinion, the jurisdiction of the Warden's Court had validly been invoked by the commencement of the Plaint on 18 March 2008. That being so, there is no error in the approach of the primary judge.
62 The appellant's written submissions in support of particular (ii) of ground 3 involve a repetition of its contention that the Warden's Court had no jurisdiction. I have already dealt with that contention.
63 Thirdly, the appellant fixes upon the primary judge's statement at [39] that it would be advantageous to both parties to have the issue tried in a Warden's Court because the wardens are 'well qualified' to determine whether a document said to be a feasibility study meets the contractual description of that document. This aspect of ground 3 was the central focus of the oral submissions of the appellant.
64 The appellant's written submissions claimed that whether the Warden was well qualified was not a relevant consideration in deciding whether an action properly commenced in the Supreme Court of Western Australia should be stayed. I do not accept that proposition. In my opinion,
(Page 18)
- his Honour was entitled to have regard to the establishment of the Warden's Court as a specialist court in the field of mining.
65 In oral submissions, senior counsel for the appellant identified its complaint as to the primary judge's statements at [39] in a different way. The appellant submitted that the issue between the parties in the litigation (whether conducted in the Warden's Court or in the Supreme Court) will involve matters of great complexity, and expert evidence could potentially be adduced in several different disciplines. That, it was submitted, was apparent from the Minval report, which was in evidence before the primary judge. The Minval report was a report which had been relied upon by Mr Ammon in support of his contention that what was provided on 25 January 2008 by PIO was not a feasibility study. The complexity of the matter was, it was submitted, such that the matter should appropriately be tried in the Supreme Court. Counsel also referred to cl 3 and cl 4 as indicating that PIO had been obliged to spend significant sums of money in respect of the Tenement.
66 Senior counsel for the appellant accepted that no submission was made to the primary judge to the effect that the matter was complex and involved expert evidence and, for that reason, should be tried in the Supreme Court's Commercial and Managed Cases List (the CMC List) in preference to being tried in the Warden's Court.
67 Reference was made, in submissions to the primary judge, to the action being tried in the CMC List of this court. In that regard, it was submitted that the action would be tried earlier in the CMC List than would the Plaint in the Warden's Court. In response to that submission, his Honour stated that if a matter in the Warden's Court was required to be dealt with urgently it was to be expected that appropriate arrangements could be made. There was no evidence before his Honour as to the time required to have a hearing date fixed in the Warden's Court. In any event, his Honour stated that it had not been suggested to him that the present dispute required urgent resolution [34].
68 The appellant submitted that there is a public interest in a complex and technical commercial matter involving expert evidence being tried in the Supreme Court rather than in the Warden's Court. That submission was not put on the basis of any absence of power on the part of the Warden's Court to dispose efficiently and justly of the dispute before it. Rather, the appellant's submissions emphasised the position of the Supreme Court at the top of the hierarchy of courts in this State. The
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- appellant says that position makes it the appropriate forum for the resolution of complex disputes.
69 I do not accept that there should be any starting point to the effect contended by the appellants. Certainly, the Supreme Court is an appropriate forum for the resolution of a complex commercial dispute relating to mining. However, the complex nature of a dispute does not, of itself, make the Supreme Court a more appropriate forum than another court with concurrent jurisdiction. Nor does the location of the Supreme Court at the top of the hierarchy of courts in Western Australia of itself give rise to any predisposition in favour of a resolution by the Supreme Court of a complex dispute in preference to another court with concurrent jurisdiction.
70 Where a superior and an inferior court have concurrent jurisdiction, there is no presumption that, if both jurisdictions are invoked, the superior court should determine the dispute in preference to the inferior court. See Boyd v Halstead; ex parte Halstead [1985] 2 Qd R 249, 255 - 257; Tiufino v Warland [2000] NSWCA 110; (2000) 50 NSWLR 104 [13] - [14]; Australian Associated Motor Insurers Ltd v NRMA Insurance Ltd [2002] FCA 1061; (2002) 124 FCR 518.
71 I return to the primary judge's conclusion at [39]. If by this statement his Honour meant that the Warden's Court would be familiar with the general subject matter of the litigation including the subject matter of potential expert evidence then, in my opinion, his Honour's statement would be unexceptionable. If, on the other hand, his Honour were saying that the Warden would be better qualified than a judge of this court to determine the dispute, then I would respectfully disagree. I think that both the Warden's Court and this court are suitable and appropriate forums to determine the dispute. Because the primary judge described his view that the Warden was well qualified as being a reason that it was advantageous to both parties for the matter to be heard in the Warden's Court, his Honour may have intended to convey the latter of the two meanings I have identified. If, favourably to the appellant, it is assumed that that is what his Honour meant, the question would then arise as to whether leave to appeal should be granted.
72 Generally, leave to appeal from an interlocutory decision will not be granted unless it appears that a substantial injustice would be done if the decision from which leave to appeal is sought remains unreversed. However there are no rigid requirements; leave will be granted if, in all
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- the circumstances, it is in the interests of justice to do so. Leave will be more readily granted if the order alters substantive rights.
73 An appellate court will exercise particular caution in reviewing discretionary decisions on matters of practice and procedure: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 177. On any discretionary decision, an appellate court will interfere only upon grounds of the kind stated in well known cases; the question for this court is not whether it would have exercised the discretion in the same way (for example, House v The King (1936) 55 CLR 499, 505). Moreover, special restraint is to be exercised when the interlocutory order is one concerned with practice and procedure: Wiltrading (WA) Pty Ltd v Lumley General Insurance Ltd [2005] WASCA 106; (2005) 30 WAR 290 [27].
74 Senior counsel for the appellant characterised the substantial injustice to the appellant arising from leaving unreversed the primary judge's decision as being the denial of the appellant's entitlement to have the matter dealt with in the Supreme Court, the highest court in the State, given the complexity of the dispute. I do not accept that there is any such entitlement. Rather, it seems to me that each of the two courts with concurrent jurisdiction is an appropriate court to determine the issues between the parties.
75 It is relevant, in assessing whether substantial injustice will be suffered, that the unsuccessful party in the Warden's Court has an unrestricted right of appeal to the Supreme Court: Mining Act 1978 (WA) s 147. The unsuccessful party on such an appeal has an unrestricted right to appeal to the Court of Appeal: Supreme Court Act 1935 (WA) s 58(1).
76 I am not satisfied that the appellant will suffer any substantial injustice if the primary judge's decision is left undisturbed, or that it is otherwise in the interests of justice that leave be granted.
77 Accordingly, I would refuse to grant leave.
Conclusion
78 For the reasons given, I would grant leave in respect of ground 1(a), but dismiss the appeal on that ground and otherwise refuse leave to appeal.
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