93 It seems to me that there is indeed a difference in the two delivery obligations referred to (that under cl 5(b) and that under cl 4.2). Where different words are used, one would expect there to be different results intended, absent some good reason to conclude otherwise. The difference in my view focuses attention on the meaning and significance of "copies" in cl 5(b). It seems to me that, when that paragraph is read with cl 4.2, the intention revealed in the former is to permit the defendant to retain "all" [Sale and Purchase Agreement] Mining Information which was in its possession or under its control at the relevant time, while requiring it to provide copies to the first plaintiff. The intention revealed in the latter is not to permit the first plaintiff to retain any of the Mining Information "in its possession or under its control in relation to the Tenements" at the relevant time for the purposes of cl 4.2.
94 I do not see any reason not to arrive at this result from the nature of [Sale and Purchase Agreement] Mining Information. Indeed I note the use of "all" in cl 5(b), which seems to me to indicate the parties' intention that no form of Mining Information should be taken as not susceptible of copying.
95 Further, I consider that all of the forms of such Mining Information specified inclusively in the definition in the Sale and Purchaser
(Page 29)Agreement reproduced above are susceptible of copying. In particular, I consider that drill core material or a drill core sample is susceptible of copying for the purpose of cl 5(b). The form of such copying on the evidence is sampling, or sub-sampling. It seems to me that, as a matter of ordinary language, sampling or sub-sampling in relation to a commodity like drill core material is capable of being understood as a copying. That is because the sample, or sub-sample, is to be taken as representative of the whole, or the sample of the whole, as the case may be, in the same way that (for example) a photocopy is taken to be a representation of the document as a whole. I have already referred to the evidence on sampling or sub-sampling, in relation to the testing of drill cores and sub-samples of drill core samples, and the retention of the drill cores or the samples for further testing. That evidence includes evidence of testing of sub-samples produced by the defendant's own work under the licences E70/1248 and E70/1307.
96 It seems to me that sampling might eventually use up what is being sampled, as the evidence I consider below in relation to the loss of drill core material as a result of testing would seem to me to suggest. However, I do not consider that possibility prevents me from reading cl 5(b) as I have indicated. There is no suggestion on that evidence here that such a possibility is a significant one, nor is there any evidence there was such a possibility in this case with respect to the drill core samples (if any) the defendant had in its possession or under its control at the relevant time. 97 I understood the defendant to put me, however, that a conclusion like that which I have reached would mean that the plaintiffs have not pleaded a breach of cl 5(b) by pleading a failure to deliver the drill core samples the defendant had on hand at the relevant time (amended reply, cl 2A.1). This is because it is not a breach of that provision not to deliver the form of Mining Information on hand, as opposed to not delivering a copy of it. However, I do not agree.
98 It seems to me that cl 5(b) needs to be read particularly bearing in mind the opening words of the definition of "Mining Information" in the Sale and Purchase Agreement, cl 1.1. I repeat those opening words emphasising those of significance to the present point:
"'Mining Information' means all information available with respect to the Tenements including, but not limited to, [the specified physical forms], and other relevant information and data."
(Page 30)
99 It seems to me that those words, when read with the listing of specified forms, indicate the intention to capture information regardless of its form. It seems to me to follow from that understanding of the words used that a physical form would be a copy or representation of "Mining Information" and that information itself. This would be the case, for example, for drill core samples. The delivery obligation in cl 5(b) would thus be to deliver that form that was also a copy, unless the defendant substituted a copy of it. The delivery obligation in cl 4.2 would thus be to deliver the form itself. The defendant would not under cl 4.2 have to accept a copy of that form. The first plaintiff would under cl 5(b) have to accept such a copy. 100 I consider that Mining Information must (in effect, if not in terms of the definition in cl 1.1) indeed be in a form that is susceptible of delivery for the purposes of cl 4.2 and cl 5(b), given their use of "deliver". On the construction I am considering here that would mean all physical forms of Mining Information would be both a copy and "Mining Information". However, I do not consider this obliterates any distinction between cl 4.2 and cl 5(b) that is conveyed by the use of "copies" in the latter but not in the former. I have already indicated that "copies" in my view permits the party required to deliver, for the purpose of the delivery obligation in the latter, but not in the former, to substitute a copy for the form of Mining Information itself.
101 Nor do I consider that this construction of cl 5(b) and cl 4.2 entails the absurdity that the defendant must under the former, construed as I have indicated, copy the form in question. That is because the form is itself a copy of Mining Information, as I have indicated, and its delivery would satisfy the delivery obligation in cl 5(b).
102 It would follow that a breach of cl 5(b) was sufficiently pleaded that relied upon the failure to deliver a form of Mining Information, drill core samples, that was a copy of such information on hand at the relevant time. There was no evidence that the defendant had delivered copies of the drill core samples. Indeed, there is evidence to the contrary, a matter I return to below.
103 However, I consider that, even if (as the defendant contends) the proper construction of cl 5(b) is not the one I have indicated I prefer, in not requiring the delivery of a form of Mining Information that is an original, it seems to me then that cl 5(b) should be construed to require the defendant to copy the relevant form for the purpose of delivery. This it seems to me would not produce an absurdity, because the form on this
(Page 31)alternative is not treated as itself also a copy. It seems to me that this construction is required by the use of the word "all" in the phrase in cl 5(b) "copies of all Mining Information in its possession or under CRAE's control" (my emphasis).
104 The result of this construction is that the defendant would be in breach of its obligation to deliver copies if it had not performed its obligation to copy. There is no evidence on this issue. However, I consider there is evidence that all the first plaintiff had received was the material referred to in the letter from Mr Lulofs for the first plaintiff to the Defendant dated 31 July 2000 (Exhibit 23), being the "total sum of the information returned to Graphite" (see the examination-in-chief of Mr Lulofs, TS 124 - 126). I have also referred to the evidence of Mr Lulofs as to the drill core samples, which I understand as being that no drill core samples other than the material referred to were delivered to the first plaintiff. This is sufficient in my view to make out a breach of the obligation in cl 5(b) on this construction. I consider that, while the plaintiffs' pleaded case did not clearly refer to a failure to deliver copies, the pleading did refer to a failure to deliver "the drill core samples" (par 8, opening words) which in my view, of samples as copies of drill core material, is sufficient to cover the case as it emerged on the evidence I have described. I return to that pleading below. 105 There appears to be another construction to the one I prefer that would not entail an obligation to copy. This construction would involve that the defendant is only required to deliver "copies" under cl 5(b) if it had both the original and the copies in its possession or under its control at the relevant time. However, this construction appears to me to me to require the words in cl 5(b) "in its possession or under CRAE's control" to qualify both "copies" and "Mining Information", which appears to me to be a strained construction, and one which appears to me to produce an unreasonable result, in relation to [Sale and Purchase Agreement] Mining Information delivered by the first plaintiff to the defendant under cl 4.2. I note the relevance of considerations of commercial reasonableness in construing documents like the Sale and Purchase Agreement, in Halsbury's Laws of Australia, [110-2242].
106 I consider that the plaintiffs have sufficiently pleaded a breach of cl 5(b), on the construction I have first indicated I prefer, as well on the other construction which entailed an obligation to copy which I considered. The plaintiffs do this in the further amended statement of claim, par 8, which pleads the failure of the defendant to "deliver to the first plaintiff the drill core samples pleaded in paragraphs 5.1 and 5.2".
(Page 32)The latter paragraphs refer to the defendant's drilling of "5,087 metres of core samples from 190 percussion holes" and "624.92 metres of core samples from 10 PQ3 diamond holes". I have previously referred to those metres as the measure of the defendant's exploratory drilling under the exploration licences E70/1248 and E70/1307.
107 However, the defendant put to me that it had not been established on the evidence that the defendant had any, or any particular quantity of, drill core samples in its "possession" or "control" at the relevant time, and in any event that it then had all of the samples from the exploratory drilling it had done. 108 I note there is no evidence that the material sent to Comalco in Queensland or the Comalco Research Centre in Victoria was ever returned to the defendant. However, I also note that the references to their testing in the defendant's 1994 Annual Report is to the testing of "samples" or "sub-samples", which seem to me to indicate that they were taken from drill core material, leaving a remainder. This would also be indicated by the evidence on testing of drill core material to which I have previously referred.
109 I further note the evidence in the form of an exchange of facsimiles between the first plaintiff and the defendant in June 1998 to which I have previously referred (Exhibits 7 and 10), which was completed by the defendant indicating in its fax of 22 June 1998 (Exhibit 10) that "a sample from store" of "high bright kaolin" comprising "three sample intervals" had been obtained and arrangements for its "despach [sic]" to "Mr John Tucker's address" were being made. The representative of the first plaintiff who had acted on its behalf in this exchange (Mr Lulofs) gave evidence that on the same day he had gone to the facility of the defendant at 37 Belmont Avenue in Belmont, the address shown on the defendant's fax of 22 June 1998, at which he had been given three samples by the defendant's representative who had acted on its behalf in this exchange (Mr Williams, to whom I referred earlier), together with a copy of the defendant's 22 June facsimile. Mr Lulofs testified he had been told by Mr Fitzpatrick, to whom I also referred earlier, that Mr Williams was the better representative of the defendant with whom to organise the delivery of technical data. Neither Mr Fitzpatrick nor Mr Williams was called to testify in this case.
110 Mr Lulofs' evidence as to the conversation with Mr Williams at the Belmont address on 22 June 1998 was as follows (examination-in-chief, TS 134 – 135):
(Page 33)"LESLIE, MR: Mr Williams gave you the three samples?---Yes. And the samples are in a calico bag, are they?---Yes.
Did he give them to you in the office or in some warehouse?---In the storage shed at the back of the Belmont office of CRA.
Is that where the wire pallet was?---Yes.
Did he tell you or describe or mention anything to you about the wire pallet?---He said they were the samples from the Kerrigan kaolin project.
How did he identify the samples or the pallet?---There's drill hole numbers written on the outside of the bags in the pallets.
What did he say to you?---He said
Firstly, can you recall what he said?---Yes. When referring to the three drill samples that he gave me he said, "Those samples came from these pallets and these - which also contain the other Kerrigan kaolin samples.
Did he point to something, did he?---Yes.
What did he point to?---He pointed to the wire cages. That's one particular wire cage and then a series of other wire cages.
I see. What was he pointing to the other series of wire cages to identify? Sorry, when he pointed to the other wire cages did he say what he was identifying?---When he pointed to the other wire cages he said, 'They are the other samples which are from the Kerrigan kaolin deposit and those are the samples that will need to be transferred to Graphite Holdings' storage. Can I add something that he also said?
Yes?---Just in doing so, he pointed to about 20 or 30 cages and said, They are the Kerrigan samples.' There were also other cages in the storage shed and he pointed to those and said, 'Those samples are from other projects in the south west', other kaolin projects not related to Kerrigan, but he pointed to 20 or 30 to advise the amount of samples that need to be transferred.
(Page 34)You are referring to Kerrigan. What is Kerrigan?---Kerrigan was the project name that CRA had adopted for the two leases, E70/1248 and E70/1307. So that was the project name."
111 Objection was taken to this evidence as other than a report of what had been said. I consider that indeed this evidence cannot be taken to be proof of the truth of what the representative of the defendant, Mr Williams, said, but only as such a report. 112 However, I was invited by the plaintiffs to proceed, as allowed for by Jones v Dunkel (1958) 101 CLR 298, in the light of the failure of the defendant to call as a witness its representative in this conversation, Mr Williams. I consider that I am in a position to do so, given the evidence as to the commercial importance and practice of retaining drill core material containing kaolin, the evidence that the representative of the first plaintiff, Mr Lulofs, had requested such material, and had visited the premises of the defendant in Belmont referred to, where he had received drill core material, and where he had had a conversation with the representative of the defendant, Mr Williams, who was the signatory to the facsimile of 22 June, a conversation to the effect described, and to whom Mr Lulofs had been directed in relation to matters of this kind by Mr Fitzpatrick. I consider that, from the failure to call Mr Williams, considered with that evidence, I am entitled more readily to draw the inference, from the evidence I have referred to other than that conversation, that Mr Lulofs had received drill core material from the defendant's exploratory drilling under one or other or both of the exploration licences E70/1248 and E70/1307, and that there was more such material.
113 There is no direct evidence as to how much more such material was in the defendant's possession or under its control at the relevant time. In particular, of course, I cannot rely on the evidence Mr Lulofs gave of his conversation on 22 June 1998 as evidence of the quantity of the drill material on hand at the relevant time.
114 However, I have already referred to the evidence, which I accept, of the commercial importance attached to an explorer's sample inventory and the commercial practice of retaining as much of a sample as possible.
115 There was evidence that drill cores or samples may be destroyed or lost accidentally, or as a result of testing, from Mr Lulofs (cross-examination, TS 191 - 192):
(Page 35)"As at June 1998 you didn't necessarily expect that every drill sample that CRA had ever taken from those tenements would be preserved?---No, that's not correct. That's a good assumption that all samples are retained. Is it never the case that samples get destroyed accidentally?---That would be an extremely rare occurrence.
That a bag with a sample breaks, for example, and the sample spills?---But even in that situation some sample would be retained.
By being picked up off the ground if it fell?---Correct.
And fell when somebody knew at the time it had fallen?---Sure.
Some samples may be destroyed as a result of destructive testing?---It's unlikely the entire sample
It's possible?---It's possible.
Samples can sometimes be lost being sent between companies and testing laboratories?---You are talking of situations that are fairly rare.
But they do happen?---Yes, it is possible."
116 However, it seems to me that Mr Lulofs' evidence is that such occurrences, which include sampling or sub-sampling with the effect of causing the loss of a drill core or a sample, are rare. I consider Mr Lulofs was qualified to give this evidence by reference to his training and experience in mining. 117 Also, Mr Lulofs' evidence was not qualified by any other evidence from any other witness, nor was my attention drawn to any other evidence that would qualify it. The defendant, as I have indicated, called no witnesses.
118 I find from Mr Lulofs' evidence just quoted, as well as that in relation to the commercial importance and practice of retaining sample inventory, and the agreement of the experts to the same effect in the last two respects, that it would have been unlikely the defendant would have lost or destroyed drill core material or samples from its drilling. I distinguish such loss from loss or destruction of part of such material sample (a copy, on my previous analysis), through the loss or destruction
(Page 36)of a sample or a sub-sample: I note again the evidence of dispatch of samples and sub-samples to Comalco and the Comalco Research Centre, in the 1994 annual report of CRA (Exhibit 46), for which there is no evidence of sample or sub-sample return.
119 On the basis of these findings, in the absence of any evidence from the defendant that any of the occurrences with the low likelihood referred to had occurred, or otherwise that there was no or less drill core or sample material on hand at the relevant time, I find that the defendant did have at the relevant time drill core samples for all of the drilling it had done. 120 However, there is evidence that the first plaintiff had received at least the three drill core samples I have referred to, which were the "only retained material" from the stipulated sample intervals from the stipulated air core hole. I do not understand this to indicate there was no other material retained for other sample intervals for the hole in question. I also note the record for this hole in the CRA annual report for 1994 shows (Exhibit 46, Appendix 4) that there were eight other sample intervals for which a "description" appears, including four others for which the "description" refers to "kaolin" of what appear to be differing shades of white. The first plaintiff was entitled to samples from the drill core material for the other intervals for this hole, and replicating that material would require a new hole to be drilled, as it would not seem to me on the evidence otherwise possible to produce the relevant drill core material.
121 The defendant did not contend, and there is no evidence, that the first plaintiff has received any more of the drill core samples than the three samples just referred to. While no time for performance was stipulated for in cl 5, it would seem to me that a reasonable time should be seen to be implicit in cl 5(b), to give business efficacy to the obligation to deliver: Seddon, N C and Ellinghaus, M P Cheshire and Fifoot's Law of Contract 8th ed Aust, Sydney, LexisNexis Butterworths, 2002, at [10.55], [10.56]. It does not seem to me, in light of the first plaintiff's own needs for the material in 1998, communicated to the defendant then as I have indicated, that it can be contended the defendant has time remaining to perform. In any event, the defendant admits it has no drill core material to deliver to the first plaintiff. At the end of this judgment, I return to the matter of the time by which I consider delivery of the samples had to occur, in the light of the parties' exchanges on the subject.