Portrange Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd
[2015] WADC 118
•8 OCTOBER 2015
PORTRANGE PTY LTD -v- XSTRATA NICKEL AUSTRALASIA OPERATIONS PTY LTD [2015] WADC 118
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WADC 118 | |
| Case No: | CIV:4199/2014 | 12 AUGUST 2015 | |
| Coram: | SCOTT DCJ | 8/10/15 | |
| PERTH | |||
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff's claim dismissed | ||
| PDF Version |
| Parties: | PORTRANGE PTY LTD XSTRATA NICKEL AUSTRALASIA OPERATIONS PTY LTD |
Catchwords: | Final judgment in previous action of which plaintiff and defendant were parties Merger of claim in judgment Res judicata/cause of action estoppel Issue estoppel Anshun estoppel Abuse of process Workers' Compensation and Injury Management Act 1981 s 92, s 93 and s 301 |
Legislation: | Workers' Compensation and Injury Management Act 1981, s 92, s 93 and s 301 |
Case References: | Blair v Curran (1939) 62 CLR 464 Bryant v Commonwealth Bank of Australia (1995) FCR 287 Delron Cleaning Pty Ltd v Public Transport Authority (2008) 36 WAR 166 Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 DP World Australia Ltd v Fremantle Port Authority [2009] WASCA 16 Ling v Commonwealth (1996) 68 FCR 180 Pollnow v Armstrong [2000] NSWCA 245 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
XSTRATA NICKEL AUSTRALASIA OPERATIONS PTY LTD
Defendant
Catchwords:
Final judgment in previous action of which plaintiff and defendant were parties - Merger of claim in judgment - Res judicata/cause of action estoppel - Issue estoppel - Anshun estoppel - Abuse of process - Workers' Compensation and Injury Management Act 1981 s 92, s 93 and s 301
Legislation:
Workers' Compensation and Injury Management Act 1981, s 92, s 93 and s 301
Result:
Plaintiff's claim dismissed
Representation:
Counsel:
Plaintiff : Ms B A Mangen
Defendant : Mr D R Clyne
Solicitors:
Plaintiff : Jarman McKenna
Defendant : HBA Legal
Case(s) referred to in judgment(s):
Blair v Curran (1939) 62 CLR 464
Bryant v Commonwealth Bank of Australia (1995) FCR 287
Delron Cleaning Pty Ltd v Public Transport Authority (2008) 36 WAR 166
Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575
DP World Australia Ltd v Fremantle Port Authority [2009] WASCA 16
Ling v Commonwealth (1996) 68 FCR 180
Pollnow v Armstrong [2000] NSWCA 245
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699
Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28
- SCOTT DCJ:
Background
1 On 29 July 2015 Bradley Noel Rollings (Rollings) suffered a workplace injury (injury).
2 When he was injured, Rollings was an employee of the plaintiff (Portrange). The defendant (Xstrata) had engaged Portrange to perform electrical work at the Cosmos Mine (mine) of which Xstrata was the owner and operator.
3 Rollings suffered injury whilst undertaking electrical work at the mine.
4 In District Court Action CIV 258 of 2010 (first action) Rollings claimed damages for personal injury against Portrange and Xstrata in negligence and/or breach of statutory duty.
5 It was common ground in the first action that:
1. On 13 June 2012 Portrange and Xstrata agreed (defined in the pleadings as 'agreement on negligence') that liability to Rollings for negligence or breach of statutory duty be apportioned 20% to Portrange and 80% to Xstrata.
2. By a consent judgment (exclusive of the workers' compensation paid by Portrange to Rollings).
(a) judgment was entered for Rollings against Portrange and Xstrata for the sum of $650,000 plus costs of $60,000 (settlement sum). The settlement sum to be paid:
(i) by Portrange in the sum of $325,000 plus costs of $30,000; and
(iii) by Xstrata in the sum of $325,000 plus costs of $30,000
(b) the question of liability to pay the settlement sum as between Portrange and Xstrata in negligence and breach of statutory duty was apportioned 20% to Portrange and 80% to Xstrata;
(c) the question of liability to pay the settlement sum as between Portrange and Xstrata in contract, be determined at the trial of the contribution proceedings between those parties.
1. The terms of any contract (contract) between Portrange and Xstrata.
2. Whether the contract incorporated an indemnity by which Portrange was required to indemnify Xstrata in respect of Rollings' claim against it.
3. Whether by the contract, Portrange was bound to maintain, at its cost and expense common law insurance in an amount of $100 million for any one accident in respect of any person employed or engaged by Portrange (ie, Rollings) such as to indemnify Xstrata for its liability whether under statute or common law and if so:
(i) whether Portrange by failing to maintain such insurance cover was in breach and if so;
(ii) the damages flowing from any such breach.
4. By counterclaim Portrange claimed from Xstrata $457,991.17 which was calculated as follows:
(a) pursuant to the agreement on negligence, Portrange and Xstrata paid to Rollings, in total, $1,016,238.97 of which sum:
(i) Portrange paid $661,238.97 - being $306,238.97 (worker's compensation payments) and $355,000;
(ii) Xstrata paid $355,000.
(b) pursuant to the agreement on negligence Portrange was liable to pay 20% of $1,016,238.97 namely $203,247.80.
(c) in the premises Xstrata was liable to Portrange the sum of $457,991.17.
Findings and Reasons in first action
8 As to each of these issues there were the following relevant findings in the first action which were published on 24 April 2014.
1. The contract included Xstrata's standard terms and conditions (Terms) in which the 'Vendor' there defined was Portrange and the 'Company' was Xstrata. The Terms included the following provisions:
Indemnity
11.1 In this clause 11 …:
'Claim' means any claim, action, proceeding, demand, cost, damage, loss, expense, liability or other outgoing howsoever incurred or suffered by, or brought or made or recovered howsoever arising (whether or not presently ascertained, immediate, future or contingent).
…
'Vendor Personnel' means the Vendor, its sub-contractors, and the directors, officers, employees and agents of each of them.
11.2 Unless due solely to the negligence of the Company, the Vendor shall be liable for and must indemnify the Company, its directors, officers, servants, principals, employees and agents against any and all Claims arising, whether at common law or under statute, and caused or contributed to, whether wholly or in part and whether directly or indirectly, by:
(c) reason of any acts, neglect or default by the Vendor, its servants, agents or contractors in or in connection with or in relation to the supply of Goods; or
(d) the presence of any Vendor Personnel on or about the Company's premises in respect of:
(i) injury to or death of any person;
…
13.1 Vendor to Insure
The Vendor shall at its own cost and expense maintain in full force and effect with reputable and substantial insurers, the insurances described in this clause 13.
13.2 Insurance of Vendor's Employees
Workers' compensation and any other insurance required by any applicable law and employer's liability/common law insurance for an amount of $100,000,000 for any one accident in respect of any person employed or engaged by the Vendor or deemed to be so employed.
Such insurance shall extend to indemnify the Company for the Company's liability whether under statute or at common law.
13.3 Third Party/Public Liability Insurance
General third party liability covering liability for physical loss or damage to property and injury or death to persons (not being a person who is defined as a worker of the applicable insured under any statute relating to workers' compensation) arising from or in connection with the provision of Services on the Premises.
3. By cl 13 of the Terms:
(a) Portrange was required to maintain at its cost insurance cover indemnifying Xstrata for its liability under statute or at common law in respect to the injury to Rollings;
(b) the failure by Portrange to maintain the insurance cover constituted a breach for which it was liable in damages to Xstrata.
4. Portrange's counterclaim against Xstrata was dismissed.
9 After the publication of the Reasons Xstrata elected to enter judgment for relief by way of the indemnity in the sums of $325,000 (damages) and $30,000 (costs) being the amounts paid by it to Rollings. Judgment was entered in those terms in October 2014.
This action
10 By its statement of claim in this action Portrange:
(a) says that the injury suffered by Rollings was an injury for which compensation was payable by it to him pursuant to the Act;
(b) says that it paid compensation totalling $306,238.97 in respect to Rollings injury pursuant to the Act;
(c) says that pursuant to a minute of consent orders in the first action judgment was entered for Rollings against Portrange and Xstrata (consent judgment) with liability to pay the judgment sum in negligence and breach of statutory duty apportioned:
(i) twenty per cent to Portrange; and
(ii) eighty per cent to Xstrata;
(d) says that pursuant to s 93 of the Act Portrange is entitled to be indemnified by Xstrata to the full extent of Portrange's liability to pay compensation under the Act reduced by 20%. That is in the sum of $244,991.17. Portrange claims that sum and interest from Xstrata.
11 In its amended defence Xstrata:
(a) Admits that Portrange was liable to pay compensation pursuant to the Act.
(b) Says that Portrange has raised the same issue which it raised in its counterclaim in the first action – namely a claim against Xstrata for 80% of the compensation paid by Portrange to Rollings in respect of his injury. That counterclaim has been determined and dismissed.
(c) Says that in the premises:
(i) the claim now raised in this action is res judicata; and/or
(ii) Portrange is estopped from maintaining its claim in this action because the issue comprising it was determined in the first action; and/or
(iii) the compensation paid by Portrange to Rollings merged with the common law judgment in the first action given the provisions of s 92 of the Act and the obligation of Portrange to indemnify Xstrata in respect to the whole of that judgment was determined in the first action.
(a) the issue in this action is not the same issue as that raised in its counterclaim in the first action;
(b) its claim against Xstrata pursuant to s 93 of the Act is a separate statutory cause of action; and
(c) notwithstanding the Terms, pursuant to s 301 of the Act, Xstrata is liable to indemnify it under s 93 to the full extent of its liability to pay compensation to Rollings reduced by 20%.
13 Counsel for Portrange submitted at trial that the claim pursuant to s 93 of the Act did not arise in the first action until Xstrata elected relief by way of indemnity. Counsel conceded that in the event that Xstrata had elected in the first action, judgment by way of damages, Portrange could not effectively maintain the statutory claim now made in this action.
Provisions of the Act
14 The relevant provisions of the Act are as follows:
92. Both damages and workers' compensation not recoverable
Where in respect of an injury an action is brought by a worker for damages independently of this Act against his employer or against some other person (referred to in this section as the defendant) or against both of them —
…
(b) if the action proceeds to judgment, including the acceptance of an offer to consent to judgment, against the employer only or against the employer and the defendant, there shall be deducted from the amount of the judgment and be paid to the employer a sum representing the amount (after apportionment in respect of any contributory negligence of the worker) actually recoverable by the worker by way of weekly or lump sum compensation, medical and other expenses paid pursuant to this Act, but where liability is apportioned between the employer and the defendant the defendant's liability to pay to the worker shall be reduced accordingly;
93. Remedies against non-employers
(1) Where the injury for which compensation is payable under this Act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof but neither the employer nor any person for whose negligence the employer is legally responsible was negligent —
(a) the worker may take proceedings both against that person to recover damages and against any person liable to pay compensation under this Act for such compensation, but shall not be entitled to recover both damages and compensation and shall bring to account in reduction of his entitlement to compensation the amount recovered by way of damages;
(b) the employer is entitled to be indemnified by the person whose negligence caused the injury to the worker (in this section called the defendant) to the full extent of the employer’s liability to pay compensation under this Act, whether or not the defendant has discharged his liability to pay damages to the worker by judgment or by settlement or otherwise.
(2) If there were —
(a) negligence by the employer or by some person for whose negligence the employer is legally responsible which caused or contributed to the worker's injury, the extent of the indemnity of the employer by the defendant is reduced by the proportion that the employer’s negligence and that of any person for whose negligence the employer is responsible bears to 100%; or
…
Except as provided by this Act, its provisions apply notwithstanding any contract to the contrary.
16 At the trial of this action no evidence was adduced. The matters which fell for determination being matters of law. They being whether Portrange was prevented from maintaining its claim against Xstrata by reason of the principles of res judicata, issue estoppel and/or Anshun estoppel.
Law with respect to res judicata and estoppel
17 In Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28 the High Court conveniently summarised the principles of res judicata and the forms of estoppel recognised by the common law of Australia.
18 In [20] – [22] the plurality said:
[20]An exercise of judicial power, it has been held, involves 'as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons'. The rendering of a final judgment in that way 'quells' the controversy between those persons. The rights and obligations in controversy, as between those persons, cease to have an independent existence: they 'merge' in that final judgment. That merger has long been treated in Australia as equating to 'res judicata' in the strict sense.
[21]Estoppel in relation to judicial determinations is of a different nature. It is a common law doctrine informed, in its relevant application, by similar considerations of finality and fairness. Yet its operation is not confined to an exercise of judicial power; it also operates in the context of a final judgment having been rendered in other adversarial proceedings. It operates in such a context as estoppel operates in other contexts: as a rule of law, to preclude the assertion of a right or obligation or the raising of an issue of fact or law.
[22] Three forms of estoppel have now been recognised by the common law of Australia as having the potential to result from the rendering of a final judgment in an adversarial proceeding. The first is sometimes referred to as 'cause of action estoppel'. Estoppel in that form operates to preclude assertion in a subsequent proceeding of a claim to a right or obligation which was asserted in the proceeding and which was determined by the judgment. It is largely redundant where the final judgment was rendered in the exercise of judicial power, and where res judicata in the strict sense therefore applies to result in the merger of the right or obligation in the judgment. The second form of estoppel is almost always now referred to as 'issue estoppel'. Estoppel in that form operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The classic expression of the primary consequence of its operation is that a 'judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies'. The third form of estoppel is now most often referred to as 'Anshun estoppel', although it is still sometimes referred to as the 'extended principle' in Henderson v Henderson. That third form of estoppel is an extension of the first and of the second. Estoppel in that extended form operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. The extended form has been treated in Australia as a 'true estoppel' and not as a form of res judicata in the strict sense. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument.
Effect of s 92 of the Act
19 Counsel for Xstrata submitted that by reason of s 92 of the Act, the payment of workers' compensation by Portrange to Rollings merged into the consent judgment such that the obligation on the part of Portrange to indemnify Xstrata in respect to the whole of that judgment, including the workers' compensation component, was determined in the first action and as such the claim by Portrange is res judicata.
20 I do not agree. Section 92 relevantly provides that where a worker's action proceeds to judgment, including a consent judgment, against the employer and/or another person there is to be deducted from the amount payable to the worker under the judgment to the employer the sum recoverable by the worker in the action. Where the liability is apportioned between the employer and the other person the other person's liability to the worker is to be reduced accordingly.
21 As such the section deals with rights and obligations between the worker of the one part and the employer and such other person of the other part.
22 It does not purport to affect the rights and obligations between the employer and that other person. That is an issue which falls for determination under s 93.
Res judicata – issue estoppel
23 For the purposes of res judicata one is restricted to an examination of the pleadings and the court's orders in the first action: Pollnow v Armstrong [2000] NSWCA 245 [13].
24 In Blair v Curran (1939) 62 CLR 464 Dixon J explained the distinction between res judicata and issue estoppel in the following terms:
A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue-estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.
Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded (531 - 532).
25 Counsel for Xstrata submitted that this is a case in which by the dismissal of the counterclaim in the first action the very right or cause of action now claimed merged into the judgment in the first action.
26 I do not accept that submission. The right or cause of action maintained in the present action that is the statutory right created by the Act, was not the right or cause of action which was pleaded and adjudicated upon in the counterclaim in the first action.
27 In Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 the court was there dealing with a judgment in an earlier action by which contribution between the parties for damages consequent upon injuries sustained by a workman was determined and a subsequent action, dealing with the same parties' respective liability for those damages, in which there was a claim to a contractual indemnity.
28 The plurality held that because the indemnity had not been litigated in the earlier action, the judgment in that case did not deal with that cause of action and as such it was not a case of res judicata.
29 Whilst it is true that the subject matter of the counterclaim between Portrange and Xstrata in the first action was whether Xstrata was liable to repay to Portrange workers' compensation payments made by it to Rollings the determination pursuant to which the counterclaim was dismissed was, on the issues joined, a finding that Xstrata was entitled to an indemnity and/or damages against Portrange such that the counterclaim could not succeed. The statutory claim under s 93 was not part of the pleaded case or that determination.
30 As a consequence, the claim by Portrange in the present action is not a case of res judicata.
31 Nor do I consider this to be a case of issue estoppel. In Anshun the plurality held that it was in that case not a matter of issue estoppel because the absence of an indemnity was not an ingredient to the cause of action for contribution. It was not a necessary step to the decision in the first action that Anshun was entitled to contribution, for the court to decide that the Authority was not entitled to an indemnity against Anshun. The defence of indemnity not having been raised, the judgment for Anshun did not involve a determination of that issue (598).
32 A critical step in considering issue estoppel is to identify the issue of fact or law which is said to be involved in the first action: DP World Australia Ltd v Fremantle Port Authority [2009] WASCA 16 [57].
33 For there to be an issue estoppel the statutory claim now made by Portrange would need to have been a necessary step to the decision in the first action that Portrange was not entitled to recover from Xstrata 80% of the workers' compensation payments made by Portrange to Rollings.
34 In the first action the issue involved in the claim for recovery by Portrange from Xstrata of contribution towards the workers' compensation payments made by it to Rollings fell to be determined having regard to the provisions of the agreement on negligence following the findings that Xstrata was entitled to the contractual indemnity and to damages for the breach by Portrange in failing to maintain the insurance cover. The issue relating to the statutory claim now made by Portrange was not one ventilated in that action.
Anshun estoppel
35 I am however of the view that Portrange is estopped from maintaining, in this action, its claim for contribution from Xstrata for 80% of the workers' compensation paid by Portrange to Rollings on the basis that there is an Anshun estoppel.
36 In Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 the court said:
Clearly, the common law favours the resolution of particular disputes between parties by the bringing of a single action rather than successive proceedings. The principles of res judicata, issue estoppel, and what has come to be known as Anshun estoppel all find their roots in that policy. … Effect can be given to that policy by the application of well-established principles preventing vexation by separate suits or, after judgment, by application of the equally well-established principles about preclusion, including principles of Anshun estoppel. [36]
37 In Anshun the court said:
… we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. (602 – 603)
38 The application of the Anshun principle requires the making of an evaluative judgment: Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 [64] – [65].
39 The submission by counsel for Portrange that the s 93 claim did not arise until Xstrata made its election before judgment cannot be made out.
40 The claim in the present case was in my view so closely connected with the subject matter of the counterclaim in the first action that it was to be expected that it would be relied upon as a basis for recovery by Portrange from Xstrata of 80% of the workers compensation paid by it to Rollings.
41 It is true that where Anshun estoppel is sought to be invoked with respect to a counterclaim different considerations might apply. This is because the Rules of Court enable a counterclaim to be litigated in proceedings in which the counterclaim may have little or no connection with the principal claim in the action such that the failure to include a cause of action in those circumstances would likely not, when claimed in subsequent proceedings, result in an Anshun estoppel being successfully maintained: Bryant v Commonwealth Bank of Australia (1995) FCR 287 (297 – 298) and Ling v Commonwealth (1996) 68 FCR 180 (184, 195).
42 This is not one of those cases. The counterclaim in the first action was intrinsically connected to the claim in the principal action. What is now sought to be maintained as a cause of action in the present action was intimately connected with the counterclaim pleaded in the first action.
43 As Newnes AJA observed in DP World [86] Anshun estoppel does not operate simply because a party is asserting a cause of action which could have been, but was not, raised in a previous proceeding in which that party was asserting a different cause of action based on substantially the same facts against the same party. The touchstone is reasonableness. The question was whether it was unreasonable for the party asserting the cause of action in the second proceeding to have refrained from raising it in the earlier proceeding.
44 A further important consideration is the likelihood of there being conflicting judgments: DP World [84]. In the first action Portrange's counterclaim for (inter alia) contribution by Xstrata towards workers compensation payments made by Portrange to Rollings was dismissed. By this action Portrange maintains a claim for that contribution. If successful there would necessarily be inconsistent judgments.
45 In my view in the circumstances of this case it was unreasonable for Portrange not to have asserted the statutory cause of action in the counterclaim in the first action and it ought be estopped from now doing.
Abuse of process
46 Although given my findings, it is not strictly necessary to deal with this issue, I consider it appropriate to make some observations about the extent to which, in this case, there would be an abuse of process should Portrange not be estopped from maintaining its claim.
47 In Tomlinson the plurality said:
[25] Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.
[26] Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel. …
48 In the first action Xstrata was successful in its claim for an indemnity and also in its claim for damages consequent upon there being a breach of cl 13 of the Terms. Those damages would arguably be in a sum sufficient to cover its exposure with respect to Rollings' claim – including workers compensation payments. That relief, sounding in damages would not be adversely affected by s 301 of the Act.
49 Had the counterclaim included a statutory claim for contribution pursuant to s 93 in the context of s 301 of the Act, that matter would have been relevant to the election required to be made by Xstrata.
50 In this case the observations made in Tomlinson are apt. The use of the court's procedures in facilitating and enabling the claim in the present action to be maintained would in all the circumstances be unjustifiably oppressive to Xstrata and as such there ought to be relief against that injustice in circumstances where it might otherwise be found that Portrange was not bound by an estoppel.
51 Portrange is estopped from maintaining its claim in this action against Xstrata. The claim will be dismissed. I will hear the parties as to costs.
0
13
1