Pilbara Iron Ore Pty Ltd v Ammon & Anor

[2020] HCATrans 215

[2020] HCATrans 215

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P32 of 2020

B e t w e e n -

PILBARA IRON ORE PTY LTD

Applicant

and

DEREK NOEL AMMON

First Respondent

DIRECTOR GENERAL OF MINES

Second Respondent

Application for special leave to appeal

GAGELER J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 8 DECEMBER 2020, AT 12.30 PM

Copyright in the High Court of Australia

GAGELER J:   I will note the appearances.

MR B.W. WALKER, QC with MR M.S. VAN BRAKEL for the applicant.  (instructed by Allen & Overy)

MR C.P. SHANAHAN, SC with MR A.P. HERSHOWITZ for the first respondent.  (instructed by JDK Legal Services Pty Ltd)

GAGELER J:   Mr Walker.

MR WALKER:   Your Honours, in 2003, an agreement was reached, the effect of which would have the respondent’s tenement possibly transferred as to an 80 per cent share to my client – return for considerable minimum payment – but, in particular, upon completion of a feasibility study for the prospect.  In due course, we asserted that had been achieved, and in accordance with the machinery provisions of the detailed written contract, they were lodged for registration with the appropriate authorities, the appropriate transfer.

Declaration was then sought in proceedings brought against us and, in due course, interlocutory injunction granted in order to restrain that registration – issue raised by those proceedings when first commenced.  And, at its core, in those proceedings as they have continued thereafter, was the respondent’s assertion that we had not, in fact, succeeded in completing the feasibility proposal, which was the key event, which would give rise to an entitlement for an 80 per cent share to be enjoyed by us and various choices, depending upon financial and other decisions to be made by the respondent between, say, a Farmin or a royalty or a sale.

GAGELER J:   Mr Walker, what is the endgame here?  You seem to want a counterclaim to be remitted to the ‑ ‑ ‑

MR WALKER:   It is difficult to see that as being a primary part of the endgame.  What really matters is what, if anything, should have been remitted.  If it is remitted, I cannot say ‑ and you will have seen this in our written material and in the Court of Appeal below ‑ I cannot say that the counterclaim is critical.  Can I explain?  The counterclaim is simply the obverse of the claim against us which hitherto has failed, that is, it has failed to this point – not all along the way but at the critical point it has failed ‑ that we had failed to complete the feasibility proposal and, therefore, were not entitled to registration.

As you will have seen in the court below, the way I eventually put it concerning the counterclaim was we do not need it because upon it being determined that that claim by our opponents failed, the way to registration was clear for us.  So that the endgame does not include ‑ notwithstanding the orders sought in writing, does not necessarily include a counterclaim at all.  …..as if in the manner can explain, the correct outcome should have followed in the Court of Appeal concerning any remitter at all.

EDELMAN J:   Your point really is you want to avoid the adjudication upon whether you are prejudiced by the construction argument.

MR WALKER:   We want to enjoy the orthodox success of the finding that we would have likely, as the Court of Appeal said, adduced facts had the Court of Appeal’s suggested way of framing the argument been adopted in time by our opponents. 

EDELMAN J:   But if that is right, then ‑ ‑ ‑

MR WALKER:   That would have led to simple success in the Court of Appeal.

EDELMAN J:   But if that is right, it would also lead to success on the remitter, would it not?

MR WALKER:   What would then be remitted, is what we ask?  The Court of Appeal, as I shall try to explain, has, in effect, remitted the Court of Appeal’s peculiar task which they partly performed ‑ and, indeed, if you read episodically only in the end part of their reasons, it was all over and in our favour at certain junctures.

Can I jump straight to that point?  After the hearing in the Court of Appeal, the sole ground upon which it had been argued we were in breach of the threshold condition which would see us through to 80 per cent had been argued as the so‑called four implied terms, three of which had been upheld in the intermediate appeal, and breach of which had been found against us at first instance and upheld on the intermediate appeal.

So, your Honours will recall the forensic history, which is long and sorry, includes the matter recorded at 420, conveniently, in their Honours’ paragraph 127 below, which, as well, their Honours’ paragraph 142 applies, namely the categorical statement, sometimes called a concession in these proceedings, by our friends to this effect.

If the warden were minded to set a preliminary question, are these four terms, which had eventually been pleaded, to be implied, a Moorcock implication.  Then it was said, by those who propounded those implied terms as their only way to show that we were in breach and had not earned our 80 per cent, was, as you see in the last sentence of that quoted passage from transcript:

If [Ammon] lose[s] –

that means, loses the four implied terms:

that’s the end of the case –

there being nothing else to do.  Ammon won that, and so the case had to go on at first instance, and there was a hearing as to whether factually we were in breach of those implied terms.  That went on an intermediate appeal, three of the four terms were upheld as to existence and breach.  We then go to the Court of Appeal, and all four terms are held not to be implied.  At that point, the question – I should not say “at that point” ‑ months later, by correspondence from the Court, what I will call, not disrespectfully, but pointedly, a judge’s point was raised with us.  So, the judge’s ‑ ‑ ‑ 

EDELMAN J:   Does it not really come down to the fact that if the judge’s point caused you, or causes you, real prejudice in the ultimate outcome, then you will be in on the remitter?  If the judge’s point does not cause you real prejudice in the ultimate outcome, how could you expect to succeed in this Court?

MR WALKER:   Your Honour, the last part we accept.  That is, if there was no prejudice, if there is no justified invocation of what I will call loosely Suttor v Gundowda – and it only loose because of the circumstances of this case, in fact, it is a precise case, this one, for Suttor v Gundowda ‑ then if there is no play of those principles, your Honours should sit me down and not call on my friend; there is nothing in it.

GAGELER J:   If you break it down a little, on the construction of the contract ‑ on the construction of the critical provision, the Court of Appeal says, “Well, that is really not a matter for evidence.  It is a pure construction point”, do you accept that?

MR WALKER:   No, I do not.  Had we been faced with this paragraph 105 construct, if I can use that word in relation to construction, then there would have been very lively consideration of what in fact is the place of these people who were called, “financiers to the mining industry”.  That is some kind of commercial anthropology which, with respect, is not at all the same as what the expert evidence proffered by Ammon at first instance went to.

EDELMAN J:   If that is right, why is that not an answer on the remitter?

MR WALKER:   Answer why there should not have been a remitter, because we should have just won in the Court of Appeal on orthodox Suttor v Gundowda terms, and that is what our special leave point is, that this is a case that sidesteps, indeed completely waives aside principles which are very largely recognised by their Honours.  Can I show your Honours what I mean by that?

GAGELER J:   Mr Walker, as you do that, could you take into account what is said at paragraph 162?

MR WALKER:   Yes.

GAGELER J:   As I understand it, you really just dispute ‑ ‑ ‑

MR WALKER:   There is a phrase “subject to the requirements of procedural fairness” your Honours see there?

GAGELER J:   Yes, the next sentence you say is just wrong, do you?

MR WALKER:   Yes.  That is a matter which, in our submission, shows a splitting or dicing of the matter concerning evidence which lacks any substance at all.  If you look at paragraph 164, it is quite plain in what I will call ordinary Suttor v Gundowda terms that there was a very large possibility ‑ their Honours say more than sufficiently for us and, indeed, likely that they would have called evidence on the facts.

Now, that question of fact they are there referring to is were we in breach of the term that judges had proposed, the paragraph 105 term.  But that is slicing and dicing far too much because that concerned questions about what bankers think; what bankers ‑ what by the extrinsic facts, in other words, one gets to the anterior question as to whether that is what those words actually mean, given facts commonly known.

It may be that that is a factual inquiry, which would have led to the notion that the proposed construction was speculative, debatable and therefore out of court.  We, after all, had simply put that the words mean what the words say.  No more problems of ambiguity or difficulty than the paragraph 105 notion, that came up after the hearing or the four implied terms which lacked orthodox justification and are no longer in play.

Now, one sees at the top of page 428 the clarity with which their Honours accepted that that which had been fought below ‑ so it is Coulton v Holcombe as well, of course ‑ that which has been fought below was the existence or otherwise of the four implied terms.  And their Honours deal with what might be called extraneous noise concerning a survival from earlier iterations of the pleading or earlier supplies of particulars, none of which were relied upon below or could be relied upon in this Court to resist the application of Coulton v Holcombe, Suttor v Gundowda.

Paragraph 160 emphasises that.  And, reading at this point, it sounds as if we had won what I will call the Suttor v Gundowda argument.  We were asked to address in writing their Honours concerning, among other things, leave to put on a notice of contention to convey the judge’s paragraph 105 construction.  And there was the question of the anterior leave to amend, as what can happen, the original pleading, so as to step aside from the four implied terms. 

At paragraph 164, as I say, another integer was supplied, surely all that was necessary for us to succeed in resisting leave from and contention.  Now, the contention is there as a vehicle for the paragraph 105 point, that is what it was for.  And then at paragraph 166, syllogistically, so to speak, we win, and one cannot rely upon the proposed notice of contention ‑ should not exercise its power to allow Ammon to amend its further amended plaint. 

So the application, which was invited by the court if I might say so, was dealt with by the court to this point correctly; they should not be allowed to raise this point so different from the way they had conducted the case, conducted the case so black and white that they had said in 2011, if we cannot get up on these implied terms the case is over. 

GAGELER J:   It is a sorry tale.

MR WALKER:   It is very sorry tale for us because we had won the substantive argument and appeared to have won the procedural argument. 

GAGELER J:   The difficulty I have, Mr Walker, is that you had this counterclaim, which even in your proposed notice of appeal to this Court you want to pursue.  You did not abandon it before the Full Court, so what you wanted to do was present the flipside of this argument on which you lost.  If you were to pursue it, and I know you ‑ ‑ ‑ 

MR WALKER:   I do not have to pursue it, we told the Court of Appeal we do not have to pursue it ‑ ‑ ‑ 

GAGELER J:   But you did not abandon it.

MR WALKER:   With respect, I understand that your Honour, but there are more ways than one of abandoning a claim.  You do not have to press it for a start.  It does not require, as it were, to be chopped.  Issue estoppel would arise on the question of whether we were entitled to registration on the failure of the allegation that we were not entitled because we had not completed a feasibility proposal, no doubt supplemented by an Anshun estoppel of a very clear kind, that is you would not be allowed to point to any other argument by which you might seek to demonstrate that we had failed to complete a feasibility proposal. 

So, the counterclaim, probably always supererogatory, is no obstacle to our criticism that there should never have been remitter order for a first instance court under the cloud of what may only be an advisory opinion concerning the paragraph 105 reading determining whether it would be in the interests of justice to permit or not to permit the argument that in the Court of Appeal would have required a contention and which the Court of Appeal recognised would have required an amendment of the first instance pleading.

That is the appellate job in a Suttor v Gundowda argument because of the finality that can be brought by an appeal in our case; we won on the issues joined at first instance and throughout and up to and including the Court of Appeal.  We had won all of those points.  We were entitled to an outcome reflecting our success and, as it happens, as a matter of justice between the parties, reflecting the position that had been taken consistently from 2011 onwards by our opponents. 

If they had failed on the implied terms then they would fail, they would lose the case, leaving the way clear to our registration, that is, the interlocutory injunction would go and we do not need the counterclaim.  Or if the counterclaim remained live it would be determined in accordance with issue estoppel, a formal hearing.

It is for those reasons that what Justice Gageler puts to me, with great respect, fairly, in light of the sorry history of this concerning us, as it were, trying to get the flipside of a success on the four implied terms, clearly only translates to the fact that we having won on the only point said to deny us our 80 per cent, there could not be opposition to us enjoying our 80 per cent.  Would we need a court order to that effect?  Positively, no.  …..enough that there was no restraint against us. 

Your Honours, it is for those reasons that when one then comes to see this idea of restoring the position that their Honours then moved to in 172, 174, 175, 176, culminating in 178, that it is, with respect, as Justice Edelman has several times raised with me already, namely, that their Honours seem to have in mind that the Suttor v Gundowda block, that is, it is too late, you have run your case in a particular way, will be administered if the merits favour that at first instance which is really only, of course, an amendment application.

But the point about Suttor v Gundowda is it comes in an appeal by way of rehearing which itself is a phase in litigation that bespeaks the need for finality, hence the appellate learning of the undesirability of remitters and retrials.  That has no corresponding aspect in first instance consideration.  It is for those reasons, in our submission, that there is this

notion that the interests of justice deny a notice of contention to run paragraph 105. 

They deny a pleading to permit that and that is what 168 – 166 plainly says, but somehow that can then go back because of a wrong turning that was taken.  The wrong turning is, with great respect, unfairly laid at the feet of the mining warden.  It was a choice made, and none the worse for being a choice made, pin everything on the four implied terms which were always contested, which were always taken.  It is for those reasons, in our submission, that when this Court asks what will happen on the remitter, an obvious thing is should the mining warden take into account that the Court of Appeal thinks query has held, because there is no declaration or anything.

Should they take into account that the Court of Appeal thinks that paragraph 105 is what the contract means, and how does that figure in the consideration by the mining warden of the matters that the Court of Appeal says will be a matter for the mining warden.  It is for those reasons, in our submission, that this is a case which has simply outflanked and exploded the characteristic quality, defining quality, of Suttor v Gundowda, which is to bring things to an end because of the forensic history.  May it please your Honours.

GAGELER J:   Mr Shanahan, we do not need to call on you. 

The procedural history of this matter is unfortunate.  However, despite the persuasiveness of the submissions of Mr Walker we do not consider that it would be in the interests of justice to grant special leave to appeal to this Court.  The application for special leave to appeal is dismissed with costs. 

The Court will now adjourn.

AT 12.52 THE MATTER WAS CONCLUDED