FEDERAL COURT OF AUSTRALIA
Strang Aniokaka Limited v Lihir Gold Limited (No 2)
[2010] FCA 1065
Citation: Strang Aniokaka Limited v Lihir Gold Limited (No 2) [2010] FCA 1065 Parties: STRANG ANIOKAKA LIMITED and STRANG INTERNATIONAL PTY LTD v LIHIR GOLD LIMITED ABN 78 069 803 998 File number: NSD 343 of 2010 Judge: RARES J Date of judgment: 1 October 2010 Catchwords: DISCOVERY – preliminary discovery – application under O 15A r 6 of the Federal Court Rules – reasonableness of belief in possible contravention of s 52 of the Trade Practices Act 1974 (Cth) – reasonableness of belief in possible knowing participation in dishonest and fraudulent design – reasonableness of belief in possible tortious interference with contractual relationship – power to grant relief under O 15A r 6 discretionary – rule should be beneficially construed, but such an order should not be made lightly
DISCOVERY – preliminary discovery – jurisdiction of court to grant relief under O 15A r 6 of the Federal Court Rules – threshold question – applicant must have right to obtain relief in the Court – applicant’s claim for relief under s 82 of the Trade Practices Act 1974 (Cth) only source of Court’s jurisdiction – whether conduct complained of was within the meaning of “conduct in trade or commerce” in s 4(1) of the Act – trading operations conducted by Papua New Guinea corporations with each other only in Papua New Guinea with no connection to Australia – some e-mail or letter correspondence or copied to and from addressees or senders in Australia concerning trade or commerce in Papua New Guinea insufficient
Held: application dismissed
Legislation: Evidence Act 1995 s 140(2)
Federal Court of Australia Act 1976 ss 21, 22, 163A
Federal Court Rules O 15A r 6
Trade Practices Act 1974 (Cth) s 52Cases cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 referred to
Allstate Life Insurance Co v Australia and New Zealand Baking Group Ltd (1995) 58 FCR 26 applied
Apache Northwest Pty Ltd v Newcrest Mining Ltd (2009) 182 FCR 124 followed
Australian Competition and Consumer Commission v Chen (2003) 132 FCR 309 at 318 referred to
Australian Competition and Consumer Commission v Maritime Union of Australia (2001) 114 FCR 472 considered
Barnes v Addy (1874) LR 9 Ch App 244
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 applied
Bray v F Hoffman-La Roche Ltd (2002) 118 FCR 1 referred to
Briginshaw v Briginshaw (1938) 60 CLR 336 appliedBuilding Workers’ Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104 applied
Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592 referred to
Butt v M’Donald (1896) 7 QLJ 68 referred to
Commissioner for Main Roads v Reed & Stuart Pty Ltd (1974) 131 CLR 278 cited
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466 referred to
Concrete Constructions (NSW) Pty Ltd…
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- AGLC
- Strang Aniokaka Ltd v Lihir Gold Ltd (No 2) [2010] FCA 1065
- Case
- [2010] FCA 1065
- Decision Date
CaseChat Overview and Summary
The court found that the applicants' claim was nebulous and lacked precision, making it difficult to arrive at a finding that there was reasonable cause to believe they had any right to relief. The court noted that the applicants' claims were not articulated with sufficient clarity and that the evidence did not support the applicants' assertions. The court held that the application should be dismissed, as the applicants had not demonstrated a sufficient basis for their claims. The court also considered the jurisdiction of the court to grant relief under O 15A r 6 of the Federal Court Rules and concluded that the applicants' claims did not meet the threshold for such relief.
The court further examined the applicants' claims regarding the tender process and found that there was reasonable cause to believe that Lihir Gold had been influenced by political considerations, but this did not necessarily mean that the tender process was a sham. The court reasoned that Lihir Gold had the right to terminate the contract and could have pursued other options, such as conducting the services itself or using another supplier. The court found that the applicants had not provided credible reasons to support their assertion that the tender process was a sham.
In conclusion, the court dismissed the application and ordered that the applicants pay the respondent’s costs. The court held that the applicants had not demonstrated a reasonable cause to believe they had any right to relief based on their claims.
Orders
Orders of the court
1. The application be dismissed.
2. The applicants pay the respondent’s costs.
Note:
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Lihir Gold also argued that a stated condition of the tender process was that it could be terminated by it, as had happened. The applicants had obtained the injunction against Lakaka, Mr Soipang and their associates prevailing them from putting in a tender. That resulted, on the evidence, in Strang Aniokaka being the only tenderer. While the injunction and the tender process remained in place, if Lihir Gold had had a legitimate purpose of obtaining and considering competitive bids, including a purpose of assessing whether Lakaka could provide a credible bid, it could no longer exercise a choice. Lihir Gold argued that it did not follow that the earlier tender process was a sham simply because it had decided, in this new context, to terminate the process and to conduct the stevedoring and material handling services itself, or to use Noram as supplier of labour.THE TRADE PRACTICES ACT CLAIM - CONSIDERATION On balance, I am satisfied that there was reasonable cause to believe that one reason for Lihir Gold’s decision to seek expressions of interest and pursue the tender process was because of the “political considerations” that Mr Green said had been mentioned in the meeting of 22 August 2008. There was reasonable cause to believe that those considerations involved a response to pressure that Mr Soipang and his associates had brought to bear on Lihir Gold to allow them, possibly through Lakaka, to supplant Strang Aniokaka as provider of stevedoring and materials handling services. However, I am not satisfied that there was reasonable cause to believe that the presence of this motivation in Lihir Gold’s decision-making process or the other factors on which the applicants relied supported their assertion that the tender process was a sham. First, there was no credible reason why Lihir Gold needed to engage in such a sham. It was free to terminate the T-08 contract on reasonable notice: Crawford Fitting Co v Sydney Valve & Fittings Pty Ltd (1988) 14 NSWLR 438. Once that contract were terminated, Lihir Gold could do as it liked in dealing with the consequences. Indeed, the T-08 contract gave either party a right to terminate it without cause on 7 days notice. Both the applicants and Lihir Gold were prepared to accept for the purposes of this argument that this express written term had evolved to a requirement for reasonable notice of termination. Even so, it is difficult to conceive how Lihir Gold’s right to avail itself of the right to terminate on reasonable notice could be further constrained by the operation of s 52 of the Trade Practices Act. There was no basis on which a term could be implied to this overriding effect, since it would be inconsistent with an express term of the T-08 contract: BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 282-283 per Lord Simon of Glaisdale for himself, Viscount Dilhorne and Lord Keith of Kinkel. Secondly, Lihir Gold made clear to Strang Aniokaka on, and after, 22 August 2008 that Lakaka was being invited to participate in the tender process, as Mr Green noted on that day, “in its own right”. Thirdly, no credible reason was given why Lihir Gold, if it had determined to engage Lakaka already, would have bothered waiting for the tender process to proceed. Lakaka’s expression of interest lodged over two months after 22 August 2008, showed that it was not then ready to undertake the task, not least because it had not then identified, or at least was not prepared to name, its proposed manager. Moreover, Lakaka had not put its tender in by the time that the applicants obtained the injunctions on 16 January 2009, which was the last day for tenders to be lodged.