Sino Iron Pty Ltd v Mineralogy Pty Ltd
[2023] WASCA 96
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SINO IRON PTY LTD -v- MINERALOGY PTY LTD [2023] WASCA 96
CORAM: BEECH JA
VAUGHAN JA
HEARD: 9 JUNE 2023
DELIVERED : 9 JUNE 2023
PUBLISHED : 13 JUNE 2023
FILE NO/S: CACV 35 of 2023
BETWEEN: SINO IRON PTY LTD
First Appellant
KOREAN STEEL PTY LTD
Second Appellant
CITIC LIMITED
Third Appellant
AND
MINERALOGY PTY LTD
First Respondent
CLIVE FREDERICK PALMER
Second Respondent
STATE OF WESTERN AUSTRALIA
Third Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: KENNETH MARTIN J
Citation: SINO IRON PTY LTD -v- MINERALOGY PTY LTD [No 15] [2023] WASC 56
File Number : CIV 2326 of 2021, CIV 1915 of 2019
Catchwords:
Appeals - Practice and procedure - Application for stay pending appeal
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
| First Appellant | : | L A Warnick SC & T Maxwell |
| Second Appellant | : | L A Warnick SC & T Maxwell |
| Third Appellant | : | L A Warnick SC & T Maxwell |
| First Respondent | : | D Fawcett & M Karam |
| Second Respondent | : | No appearance |
| Third Respondent | : | No appearance |
Solicitors:
| First Appellant | : | Herbert Smith Freehills |
| Second Appellant | : | Herbert Smith Freehills |
| Third Appellant | : | Herbert Smith Freehills |
| First Respondent | : | Robinson Nielsen Legal |
| Second Respondent | : | No appearance |
| Third Respondent | : | No appearance |
Case(s) referred to in decision(s):
Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Apache Energy Ltd v Alcoa of Australia Ltd [2012] WASCA 201
Billabong Gold Pty Ltd v Vango Mining Ltd [2022] WASCA 35
CPB Contractors Pty Ltd v JKC Australia Lng Pty Ltd [No 3] [2017] WASCA 132
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Hamersley Iron Pty Ltd v Lovell [No 2] (1998) 20 WAR 79
Mineralogy Pty Ltd v Sino Iron Pty Ltd [2022] WASCA 26
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 15] [2023] WASC 56
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 16] [2023] WASC 192
Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168
REASONS OF THE COURT:
Introduction
On 7 March 2023, the primary judge delivered his reserved decision following a trial of the action in the primary proceedings: Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 15][1] (trial reasons). Relevantly, the primary judge made orders to the following effect:
[1] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 15] [2023] WASC 56.
Programme of Works
1.The first defendant [Mineralogy] shall, within 7 days of the hearing referred to in paragraph 8 of this Order or any further order of the Court, submit the Programme of Works in the form of annexure 1 to these orders to the Department of Mines, Industry Regulation and Safety (DMIRS) for assessment, by email to Mr Richard Sellers, Director General of DMIRS, copied to the first and second plaintiffs care of their solicitor Mr Gerard Woods, Partner of Allens.
Other claims for injunctive relief
2.The plaintiffs' [the CITIC parties'] claims for relief in paragraphs A, B, BA and C of the Consolidated Further Re‑Amended Statement of Claim dated 30 December 2021 (CONSOC) be dismissed.
Claims for monetary relief
3.Except in so far as they relate to the plaintiffs' claims for breach of contract in relation to the Programme of Works, namely the claims made in CONSOC paragraph 172 together with paragraph 204(a), as they relate to the breach of the obligations pleaded at CONSOC paragraphs 162(a)(ii) and (b), the plaintiffs' claims for relief in paragraphs E, H and I of the CONSOC be dismissed.
4.…
Other claims for monetary relief, and costs
5.The issue of the further conduct or disposition of the plaintiffs' claims for relief in paragraphs E, H and I of the CONSOC in so far as they relate to the plaintiffs' claims for breach of contract in relation to the Programme of Works, namely the claims made in CONSOC paragraph 172 together with paragraph 204(a), and the issue of the reserved costs of the proceeding, be adjourned to a special appointment on Friday, 21 April 2023 at 10.30am WST (Reserved Issues).
Application for stay of Order 1
6.By 4.00pm WST on Thursday, 6 April 2023, the first defendant shall file and serve any application to stay paragraph 1 of this Order (Stay Application), any affidavit material and an outline of submissions.
7.By 4:00pm WST on Monday, 17 April 2023, the plaintiffs shall file and serve any outline of submissions and affidavit material in opposition to the Stay Application.
8.The Stay Application be listed for hearing on Thursday, 20 April 2023 at 2.15pm WST.
Pursuant to par 6 of the primary judge's orders, Mineralogy applied for a stay of par 1 of the orders (order 1). The primary judge heard the application at a special appointment on 20 April 2023. At the hearing on 20 April 2023, the primary judge suspended the operation of order 1 until the determination of Mineralogy's stay application.
On 2 June 2023, the primary judge delivered his decision dismissing Mineralogy's application for a stay: Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 16][2] (stay reasons).
[2] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 16] [2023] WASC 192.
The parties have proceeded on the basis that the effect of the primary judge's decision dismissing the stay application was that Mineralogy is required to comply with order 1 by 9 June 2023.
On 7 June 2023, Mineralogy applied to this court for an urgent stay of order 1 pending the determination of a cross-appeal that it had commenced against that order and against order 3 of the trial judge's orders set out at [1] above.
Consequently, this court listed Mineralogy's application for a stay to be heard urgently on 9 June 2023. Programming orders were made on 7 June 2023 to facilitate the application being heard on an urgent basis.
Later in these reasons, we will make some observations as to why this course of events was, to say the least, far from optimal - and is not one to be followed by litigants in the future.
At the conclusion of the hearing of Mineralogy's application for a stay, the court made the following orders:
1.The application is dismissed.
2.Mineralogy pay the CITIC parties' costs of the application.
We said at the hearing that we would publish reasons later. These are our reasons for making those orders.
Background
The background to the primary proceedings, and to the claims made by Sino Iron, Korean Steel and CITIC, who are the plaintiffs in the primary proceedings (and to whom we will refer collectively as the CITIC parties), were outlined in broad terms in this court's decision in Mineralogy Pty Ltd v Sino Iron Pty Ltd.[3] We adopt that outline without repeating it. We refer to the contracts between the parties as the MRSLAs.
[3] Mineralogy Pty Ltd v Sino Iron Pty Ltd [2022] WASCA 26.
In general terms, the CITIC parties' claims in the primary proceedings arose from their wish to expand their operations as part of the iron ore projects pursued under the MRSLAs.
By way of very broad summary, the CITIC parties sued Mineralogy and Mr Clive Palmer in relation to Mineralogy's alleged failure and refusal to:
(1)submit mine continuation proposals, referred to as the 2017 MCPs, for the Sino Iron project to the State under the State Agreement;
(2)grant further necessary tenure for the Sino Iron project;
(3)take steps to secure the repurposing of leases for the Sino Iron project; and
(4)submit a programme of works for the Sino Iron project to the State.
The trial reasons
The upshot of the primary judge's trial reasons was that the CITIC parties' claims were, in substance, rejected. For present purposes, it is not necessary to outline his Honour's reasons for so concluding. The CITIC parties have appealed against the rejection of their claims.
However, the primary judge found in favour of the CITIC parties in relation to one limited aspect of their claims. Mineralogy cross‑appeals against that aspect of the primary judge's decision, challenging order 1 and order 3 set out in [1] above.
The judge upheld the CITIC parties' claim that, under the MRSLAs, Mineralogy was obliged to submit the programme of works dated 23 April 2018 (the PoW) to the Department of Mines, Industry Regulation and Safety (DMIRS).
His Honour's reasoning, in so concluding, may be summarised as follows:[4]
(1)The works proposed by the PoW are a series of proposed investigatory drilling exercises to be done on ground that is the subject of the tenements governed by the MRSLAs.[5]
(2)Unlike the 2017 MCPs the subject of the CITIC parties' main case, the PoW sought approval from DMIRS; it did not seek the approval of the minister under the State Agreement.[6]
(3)Mineralogy's defence to the claim concerning the PoW was its assertion that its requested cooperation for the PoW was interdependent with the contentious 2017 MCPs and disputed extra tenure issues.[7]
(4)That 'interdependency defence' was 'ultimately not sustainable'.[8] All of the contractual assistance, or reasonable assistance, expressly promised in the project agreement obliged Mineralogy to provide consent to the submission of the PoW to DMIRS, absent a 'more substantive grievance' over what was proposed.[9]
(5)The evidence of Mr Goodwin, called by the CITIC parties, that regulatory approval was required in order that the drilling proposed in the PoW be conducted, was essentially unchallenged.[10]
[4] Trial reasons [2414] - [2433].
[5] Trial reasons [2415] - [2429].
[6] Trial reasons [2423].
[7] Trial reasons [2427].
[8] Trial reasons [2428].
[9] Trial reasons [2430].
[10] Trial reasons [2421], [2431].
The stay reasons
The primary judge identified the applicable principles on Mineralogy's stay application by reference to what was said by Quinlan CJ and Mitchell JA in Billabong Gold Pty Ltd v Vango Mining Ltd:[11]
An applicant for interim relief such as a stay or suspension order generally needs to demonstrate that there are special circumstances justifying departure from the ordinary rule that a successful litigant at first instance is entitled to enforce the judgment pending the determination of any appeal. There are three essential considerations that arise in the context of the general principles relevant to the grant of a stay of a primary court's orders: (1) whether the refusal of a stay could render the appeal nugatory; (2) whether the appeal has reasonable prospects of succeeding; and (3) whether the balance of convenience favours the grant or refusal of a stay.
[11] Billabong Gold Pty Ltd v Vango Mining Ltd [2022] WASCA 35 [33].
The primary judge then addressed those three considerations.
The judge began with the question of whether Mineralogy had a reasonable prospect of succeeding on appeal. When the primary judge heard the application, Mineralogy had not yet filed grounds of appeal or submissions. The primary judge recognised that, as trial judge, his Honour may have a subconscious predisposition against a conclusion of merit in an appeal ground. In any event, his Honour weighed Mineralogy's prospects on appeal as a neutral factor. His Honour then turned to the balance of convenience.
The primary judge considered that there would be minimal, if any, real prejudice sustained by Mineralogy through complying with order 1.[12] His Honour's reasons for so concluding included that:
(1)An approval by DMIRS does not necessarily translate into the effecting of the works.[13]
(2)It is likely to take some months to obtain any approval from DMIRS and a further period of approximately 13 months for the implementation of the works. Thus, it is likely to remain open to Mineralogy to seek from the Court of Appeal a stay of the work itself.[14]
(3)The drilling of investigative holes is not in itself prejudicial to Mineralogy, particularly bearing in mind the substantial drilling and mining that has occurred on the tenements.[15]
(4)Mineralogy's submission of the PoW will have been, and will be seen to have been, done under the compulsion of a court order, the making of which can be challenged on Mineralogy's appeal. Mineralogy's right to do so is preserved because the issues as to whether the orders should have been made remain relevant to the CITIC parties' claim for damages for breach of contract in relation to the PoW claim.[16]
[12] Stay reasons [42], [66].
[13] Stay reasons [44].
[14] Stay reasons [44] - [48].
[15] Stay reasons [49] - [51], [67] - [68].
[16] Stay reasons [52] - [57].
As to the balance of convenience, the primary judge referred to Mr Goodwin's evidence that, when it was requested, the PoW was considered to be urgent. Since the request, more than five years had elapsed. His Honour considered that further delay in seeking the necessary DMIRS approval should not lightly be countenanced.[17]
[17] Stay reasons [60] - [65].
The judge concluded that the balance of convenience overwhelmingly favoured the rejection of the stay application and the immediate implementation of the relief obtained by the CITIC parties on the PoW issue.[18]
[18] Stay reasons [71].
Finally, the judge considered the question of whether Mineralogy's appeal against order 1 of the orders would be rendered nugatory if a stay were not granted. His Honour considered that this question was to be answered in the negative.[19] His Honour considered that even if a DMIRS approval was granted, that would not resolve the underlying controversy in the appeal, which was whether Mineralogy was in breach of the contract. That controversy would remain, given the CITIC parties' claim for damages.[20]
[19] Stay reasons [72].
[20] Stay reasons [76] - [80].
Having regard to these three considerations, and bearing in mind the balance of convenience, his Honour rejected Mineralogy's application for a stay.
Mineralogy's cross-appeal
As already noted, Mineralogy has lodged a cross‑appeal against orders 1 and 3.
Mineralogy filed its appellant's case on 4 June 2023. It advances three grounds of appeal.
Ground 1 contends that the primary judge erred in law in the proper construction of relevant contractual provisions in failing to hold that, before Mineralogy had an obligation to submit a proposal under the relevant provisions, the CITIC parties had to demonstrate a need to submit such a proposal for the purpose of performing the MRSLAs so that Mineralogy could assess in an informed way whether to do so, having regard to its own commercial interests.
Ground 2 asserts that the primary judge erred in fact and law by failing to construe the CITIC parties' request in the letter of 23 April 2018 as being interdependent with Sino Iron and Korean Steel's other requests, which the primary judge had earlier found Mineralogy was not contractually obliged to accede to.
Ground 3 contends that the primary judge erred in fact and law by finding that submission of the PoW was 'reasonable assistance' to 'progress development of the project', or 'assistance', within the meaning of the relevant contractual provisions, in circumstances where the PoW was inutile without the grant of additional tenure and/or the submission and approval of the 2017 MCPs.
The application for a stay in this court
As already noted, Mineralogy applied for an order that order 1 be stayed until the determination of Mineralogy's cross-appeal or until further order.
Submissions
Mineralogy's submissions
Mineralogy submits that the fact that the primary judge refused its application for a stay does not limit this court's power to determine whether a stay is appropriate.[21] The CITIC parties do not submit to the contrary.
[21] Mineralogy submissions [2] - [3].
Mineralogy submits that insofar as it cross-appeals against order 1, the appeal will be rendered nugatory if Mineralogy submits the PoW to DMIRS. Mineralogy accepts that it also appeals against order 3, preserving the CITIC parties' damages claim relating to the PoW, but submits that the jurisdiction to grant a stay is enlivened where it is necessary to prevent part of an appeal becoming nugatory.[22]
[22] Mineralogy submissions [5].
Mineralogy accepts that, as the primary judge found, the PoW is only a step in the process before work can commence on the contemplated drilling. However, Mineralogy submits that it is far from certain that it could enjoin any assessment by DMIRS or any drilling works pursuant to an approval.
As to its prospects of success on the cross-appeal, Mineralogy submits that it is sufficient to observe that the appeal is not frivolous.
Mineralogy submits that the balance of convenience favours a stay because at least part of the subject matter of the appeal will be rendered nugatory if a stay is not granted, thereby impairing Mineralogy's right of appeal. Further, absent a stay, a statutory procedure will be set in motion, the outcome of which Mineralogy may be unable to control or influence. Against that, Mineralogy submits, there is no evidence that the PoW requires imminent assessment, and there is no valid proposal to expand the project in the manner contemplated by the PoW. Mineralogy submits that any prejudice to the CITIC parties can and will be alleviated by their claim for damages.
The CITIC parties' submissions
The CITIC parties submit that Mineralogy's application should be dismissed because refusal of the stay will not render the cross‑appeal nugatory, the cross‑appeal does not have reasonable prospects of success, and the balance of convenience favours refusal.
The CITIC parties submit that the cross‑appeal will not be rendered nugatory because:
(1)when the appeal is heard, it will be open to Mineralogy to seek orders preventing damage to its interests arising from performance of the PoW; and
(2)the underlying dispute as to whether Mineralogy breached its obligations by failing to submit the PoW remains, as does the claim for damages for that breach.
The CITIC parties submit that the cross‑appeal has no reasonable prospects of success, contending that:
(1)ground 1 raises an argument not put below and, in any event, is unlikely to succeed because the primary judge construed the relevant clauses and applied them to the PoW, determining that the PoW did not affect the commercial interest that was pressed by Mineralogy in relation to the other requests;
(2)ground 2 is weak because mere overlap does not amount to interdependence. The primary judge's findings should be upheld for the reasons his Honour gave; and
(3)as to ground 3, whatever form any necessary approvals ultimately take, the works the subject of the PoW will be required for the project. The utility of the PoW does not depend on the grant of additional tenure or on approval of the 2017 MCPs.
The CITIC parties submit that the balance of convenience favours dismissing the stay application because there is no real prejudice to Mineralogy if it submits the PoW to DMIRS. DMIRS may reject the application, approve it or seek further information. Once approved, a further 13 months will be required to implement the PoW. If, by the time of the appeal hearing, the PoW has been approved but works not commenced, it would be open to Mineralogy to seek a stay of the works.
In any case, the CITIC parties submit, the proposed investigative works consist of no more than drilling holes on tenements over which Sino Iron and Korean Steel already have rights of access and use, and which have already been the subject of significant mining activity. To the extent that the drilling disturbs the tenements, there are remediation obligations under the MRSLAs which the CITIC parties must comply with. By contrast, the potential prejudice to the CITIC parties if the application is granted is significant. Submission of the PoW has already been delayed for more than five years. The works are urgently required, as explained in Mr Goodwin's uncontested evidence.
Legal principles
We accept Mineralogy's submission that this court's power to grant a stay of an order the subject of appeal to this court is not diminished by a decision of the primary court to grant, or refuse, a stay pending a contemplated appeal. That is true for an application under s 15 of the Civil Judgments Enforcement Act 2004 (WA), an application under r 44 of the Supreme Court (Court of Appeal) Rules 2005 (WA), or of an application invoking the court's implied powers. In these respects, the position is analogous to that explained in Alexander v Cambridge Credit Corporation Ltd.[23]
[23] Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685, 692.
The general principles in relation to a stay pending a determination of an appeal have routinely been stated in this court as follows:[24]
(1)The successful litigant is ordinarily entitled to enforce a judgment pending the determination of any appeal.
(2)It is for the applicant for a stay to move the court to a favourable exercise of its discretion. Under s 15(3) of the Civil Judgments Enforcement Act, this court may only make a suspension order if there are 'special circumstances' that justify doing so. This is also a usual requirement in an application for a stay under the Supreme Court (Court of Appeal) Rules 2005 (WA) or the court's implied powers.
(3)The central issue will be whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation or whether a refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal. This may shortly be described as requiring the court to consider whether the right of appeal will be rendered nugatory if a stay is not granted.
(4)If it can be demonstrated that the right of appeal will be rendered nugatory if a stay is not granted, the stay will generally still be refused unless it can be established that the appeal ultimately has reasonable prospects of success.
(5)Finally, a stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant - for example, where the grant of a stay will occasion hardship to the respondent which may not be alleviated by the terms upon which the stay may be granted.
[24] Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9]; Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168 [22].
The matters in [42] above are properly seen as organising principles which inform the exercise of the court's power to grant a stay - the exercise of the power to grant a stay also being informed by the precept that the object of the power is to preserve the efficacy of the exercise of this court's appellate jurisdiction.
Something more should be said about the concept of when a right of appeal will be 'rendered nugatory' by the refusal of a stay, given the accepted centrality of that concept to the exercise of the power to grant a stay.
An appeal is rendered nugatory if, without a stay, the appellant will be deprived of the result of its appeal if successful. In other words, speaking broadly, the appeal would be futile unless a stay were granted. The concept is concerned with likely practical consequences, as well as legal consequences. For example, it is accepted that a right of appeal may be rendered nugatory where there is a real prospect that, if the appeal succeeds, the respondent will not have the capacity to comply with the appeal court's order requiring repayment of a judgment sum paid by the appellant pursuant to the judgment debt. Other ways in which an appeal might be rendered nugatory were discussed by Pullin JA in Tradesman Technologies Pty Ltd v Ameduri.[25]
[25] Tradesman Technologies Pty Ltd v Ameduri [23], [25] - [26].
It is accepted that there are the following three overlapping categories of case where a right of appeal may be rendered nugatory in the absence of a stay:[26]
(1)Where a stay is necessary to preserve the subject matter or integrity of the litigation (that, ordinarily, being the right of appeal itself rather than the maintenance of the status quo existing prior to the judgment or order the subject of the appeal).
(2)Where refusal of a stay could create practical difficulties in the relief available to the appellate court in the event of a successful appeal.
(3)Where there is a real risk that it will not be possible for a successful appellant to be restored substantially to the appellant's former position if the judgment against the appellant is executed.
[26] Hamersley Iron Pty Ltd v Lovell [No 2] (1998) 20 WAR 79, 81 - 85.
Disposition
Will the appeal, or part of it, be rendered nugatory?
We are, and were, satisfied that, insofar as Mineralogy's cross‑appeal challenges order 1, in the absence of a stay, Mineralogy will be obliged to do as commanded by order 1, thereby rendering Mineralogy's appeal against order 1 nugatory in the relevant sense.
We do not accept the CITIC parties' submission that, at the hearing of the appeal, this court can make injunctive or other orders restraining further works being done under the PoW after an approval by DMIRS. Senior counsel for the CITIC parties did not point to any authority suggesting that this court's power would extend so far. We are not presently persuaded that any such power would arise.
As Mineralogy accepts, refusal of a stay will not render Mineralogy's cross‑appeal entirely nugatory. Mineralogy's appeal against order 3, which preserved the CITIC parties' claim for damages for breach of contract, will remain on foot, unaffected by Mineralogy's performance of order 1. As a consequence, the substantive question of whether Mineralogy breached the MRSLAs by its failure to respond to the request made by the letter of 23 April 2018 concerning the PoW will be determined in Mineralogy's appeal, regardless of whether a stay is granted or refused.
Reasonable prospects of success on appeal?
In the context of an appeal as of right to this court, what is sufficient to amount to reasonable prospects of success for the purposes of a stay application is, ordinarily at least, not a high hurdle. Often, if not generally, it will be enough to show that the grounds of appeal have a rational and logical prospect of succeeding.[27]
[27] See, for example, Apache Energy Ltd v Alcoa of Australia Ltd [2012] WASCA 201 [27].
Having read Mineralogy's appellant's case on its cross‑appeal, having considered the CITIC parties' submissions on this stay application, and giving due regard to the terms in which the letter of 23 April 2018 was framed, we are comfortably satisfied that grounds 2 and 3, considered together, have reasonable prospects in the relevant sense.
The balance of convenience
As counsel for Mineralogy rightly recognised, in the end this application for a stay essentially turned on the question of the balance of convenience.
We accept that, as Mineralogy emphasises, refusal of the stay will impair Mineralogy's right of appeal insofar as Mineralogy challenges the making of order 1 and will render Mineralogy's cross-appeal nugatory to that extent.
Where refusal of a stay would render an appeal wholly nugatory, that consideration will ordinarily weigh very heavily in the balance of convenience in favour of the grant of a stay. Where, as here, refusal of a stay renders an appeal nugatory in part, the weight to be attributed to that in the balance of convenience will, of course, depend upon the circumstances of the case as a whole. In the present case, the substantive issues sought to be ventilated by Mineralogy's cross-appeal will remain to be determined. Consequently, as counsel for Mineralogy ultimately accepted, Mineralogy cannot point to any ongoing wider consequences of a refusal of the stay for the parties' contractual relationship. Rather, in relation to the balance of convenience, Mineralogy relies only on the impairment of its appeal right, coupled with the setting in motion of the statutory process for approval of works under the PoW.[28]
[28] Appeal ts 11.
In dismissing Mineralogy's application for a stay, the primary judge found that the performance of the works the subject of the PoW would not cause any, or any real, prejudice to Mineralogy, having regard to the scope of what was proposed under the PoW and having regard to what had already occurred by way of mining and exploration on the relevant tenements.[29] While this court's exercise of discretion to grant a stay is not fettered by the decision of the primary judge to refuse a stay, in exercising our discretion we afford substantial weight to the primary judge's conclusion that the performance of the work the subject of the PoW will not prejudice Mineralogy. His Honour had the significant benefit of having presided over, and determined, the trial of the primary proceedings and had thereby acquired a considerably greater familiarity with the relevant facts and circumstances, including the tenements and the activities which have occurred on them. Counsel for Mineralogy before us did not submit to the contrary.
[29] Stay reasons [49] - [51], [67] - [68].
Further, before us, counsel for Mineralogy did not point to any material prejudice to Mineralogy arising from performance of the works the subject of the PoW.[30] In our view, the absence of such prejudice is very significant in the balance of convenience.
[30] Appeal ts 12.
The grant of a stay would cause substantial delay. In both the appeal and the cross‑appeal, the respondent's answer is yet to be filed. The trial before the primary judge was large and complex. The trial reasons are extensive. It is to be expected that the appeal hearing for this matter will take much longer than most appeal hearings. Indeed, counsel for Mineralogy did not dispute an estimate that the appeal and cross-appeal may involve a five-day appeal hearing.[31] In all the circumstances, it is likely that the hearing of the appeal and the cross‑appeal will not occur before the second half of next year.
[31] Appeal ts 11 - 12.
Substantial delay of the kind just referred to counts firmly against the grant of a stay in circumstances where the starting point is the ordinary entitlement of the CITIC parties, as the successful litigants, to enforce the judgment in their favour. Contrary to Mineralogy's submission,[32] the availability of a claim for damages does not answer the CITIC parties' prima facie entitlement to enforce the primary judge's order by way of specific relief.
[32] Appeal ts 13.
Bearing in mind the absence of any material prejudice to Mineralogy in the doing of the works the subject of the PoW, in our view the balance of convenience lay firmly in favour of the refusal of a stay. It was for this reason that we refused Mineralogy's application for a stay.
Observations as to the procedure to be adopted in seeking a stay
The procedure adopted in the present case - namely, an interim stay coupled with programming directions for a special appointment before the trial judge as to whether order 1 should be stayed pending determination of the appeal - was proposed by Mineralogy and consented to by the CITIC parties.
That procedure resulted in:
(1) the trial judge hearing and determining a contested application for a stay in an orderly environment, free of any undue urgency; and
(2) a further application to this court which was required to be listed, heard and determined within 48 hours of the application being filed - thus requiring the court to rearrange its workload in a manner that is not conducive to the efficient and effective performance of the court's duties.
The procedure adopted in this case should not occur in other cases.
It is entirely appropriate for a trial judge to be asked to make, and, in appropriate circumstances, to make, an order for an interim stay to enable a substantive application for a stay pending appeal to be made in an orderly fashion. However, it should be very clearly understood that the substantive application for a stay pending the determination of an appeal should be made to this court, not to the trial judge. The object of any stay is to protect the efficacy of this court's appellate jurisdiction and, apart from exceptional circumstances of necessity, it is this court that should exercise discretion to that end. Moreover, as the primary judge recognised in this case, there are inherent difficulties in the trial judge receiving and considering submissions contending that the trial judge erred.[33]
[33] In the different context of applications for a stay pending special leave to appeal to the High Court of Australia, that difficulty is unavoidable. See, for example, CPB Contractors Pty Ltd v JKC Australia Lng Pty Ltd [No 3] [2017] WASCA 132 [18].
Conclusion
For the above reasons, we dismissed the application and ordered Mineralogy to pay the CITIC parties' costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AE
Associate to the Honourable Justice Beech
13 JUNE 2023
5
10
0