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Walker v Newmont Australia Ltd

Walker v Newmont Australia Ltd

Case [2010] FCA 298 31 March 2010

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FEDERAL COURT OF AUSTRALIA
Walker v Newmont Australia Ltd [2010] FCA 298

Citation: Walker v Newmont Australia Ltd [2010] FCA 298

Parties: DAVID ANTHONY WALKER and DALKEITH RESOURCES PTY LTD (ACN 061 721 453) v NEWMONT AUSTRALIA LTD (ACN 009 295 765)

File number: VID 732 of 2009

Judge: GORDON J

Date of judgment: 31 March 2010

Legislation: Federal Court of Australia Act 1976 (Cth), s 23

Cases cited:
Arhill Pty Ltd v General Terminal Co Pty Ltd (1991) 23 NSWLR 545
BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 725
Commonwealth Bank of Australia v White [1999] 2 VR 681
Brealey v Board of Management Royal Perth Hospital (1999) 21 WAR 79
Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International NV (2007) 157 FCR 558
Fiduciary Ltd & Anor v Morningstar Research Pty Ltd & Ors (2004) 60 NSWLR 425
Gambro Pty Ltd v Fresenius Medical Care Australia Pty Ltd [2002] FCA 581
Howard v National Bank of New Zealand (2002) 121 FCR 366
Laurie v Carroll (1958) 98 CLR 310
Maconochie v Risk (Unreported, Supreme Court of New South Wales Equity Division, Kearney J, 16 February 1989)
National Commercial Bank v Wimborne (1979) 11 NSWLR 156
Re Dulles’ Settlement (No 2); Dulles v Vidler [1951] Ch 842
Sabre Corporation Pty Ltd v Russ Kalvin’s Hair Care Co (1993) 46 FCR 428
Stemcor (Australasia) Pty Ltd v Oceanwave Line SA [2004] FCA 391
Thermasorb Pty Limited v Rockdale Beef Pty Limited & Ors (2005) 190 FLR 71
Vertzyas v Singapore Airlines Pty Ltd (2000) 50 NSWLR 1
Walter v Freehills (2009) 258 ALR 67

PE Nygh & M Davies, Conflict of Laws in Australia (7^th ed, 2002)

Date of hearing: 25 March 2010

Date of last submissions: 30 March 2010

Place: Melbourne

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 41

Counsel for the Applicants: Mr S Anderson SC, Mr P Wallis and Mr DC Morgan

Solicitor for the Applicants: Holding Redlich

Counsel for CIBC World Markets Inc and CIBC Australia Ltd, non-parties: Mr P Liondas

Solicitors for CIBC World Markets Inc and CIBC Australia Ltd, non-parties: Mallesons Stephen Jaques

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 732 of 2009

BETWEEN:
DAVID ANTHONY WALKER
First Applicant

DALKEITH RESOURCES PTY LTD (ACN 061 721 453)
Second Applicant

AND:
NEWMONT AUSTRALIA LTD (ACN 009 295 765)
Respondent

JUDGE:

GORDON J

DATE OF ORDER:

25 MARCH 2010

WHERE MADE:

MELBOURNE

THE COURT DECLARES THAT:
1.CIBC World Markets Inc (CIBC WM) has submitted to the jurisdiction of the Court.

THE COURT ORDERS THAT:
2.By 4:00pm on 9 April 2010, CIBC WM produce to the Court any documents in the possession, custody or control of CIBC WM, including any documents located in Canada, that answer the description in the Schedule to the subpoena issued by the Court on 18 December 2009 and the Schedule to the subpoena issued by the Court on 10 February 2010.
3.The Notice of Motion filed by the Applicants on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Walker v Newmont Australia Ltd

Details

AGLC: Walker v Newmont Australia Ltd [2010] FCA 298
Case: [2010] FCA 298
Decision Date

CaseChat Overview and Summary

In Walker v Newmont Australia Ltd, the Applicants sought various orders against CIBC WM, CIBC Australia, and others, including a mandate for CIBC Australia to procure documents from CIBC WM. The dispute arose from an underlying legal matter where the Applicants required certain documents for their proceedings. The case was heard in the Federal Court of Australia, where the Applicants made their application. The primary legal issues were whether CIBC Australia could be compelled to obtain documents from CIBC WM, and if the Court could issue orders against non-parties such as CIBC Australia and CIBC WM.

The Court examined the nature of the relationship between CIBC Australia and CIBC WM, and whether CIBC Australia was subject to the Court's jurisdiction. The Applicants argued that CIBC Australia should be ordered to use its best efforts to obtain the documents from CIBC WM. The Court found that CIBC Australia was not a party to the proceeding and was not subject to the Court's jurisdiction. Even if it were, the best the Applicants could hope for was a Sabre type order or an order requiring best endeavours, which was deemed unnecessary as the Court was prepared to issue a direct order against CIBC WM. The Court concluded that it was more appropriate to make an order directly against CIBC WM for the production of documents.

The Court granted the Applicants a declaration that CIBC WM had submitted to the Court's jurisdiction. It ordered CIBC WM to produce the documents by a specified date. The Court dismissed the Applicants' and CIBC WM's Notices of Motion, determining that costs should follow the event. Specifically, CIBC WM was ordered to pay the Applicants' costs related to the Notices of Motion, and no additional costs were awarded to CIBC Australia. The Court also ruled against making costs orders to ensure CIBC WM were not out of pocket, stating that such orders should be made at the return of the subpoenas.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Applicants also sought an order that CIBC Australia take all reasonable steps available to it to obtain the documents responding to the First Subpoena and the Second Subpoena that are in the possession of CIBC WM, the Canadian Imperial Bank of Commerce or any related entity to CIBC Australia, including any such documents located in Canada. That application should be dismissed. CIBC Australia is not a party to the proceeding and is not the subject of any process (whether by subpoena, application for third party discovery or otherwise) which would make it subject to the jurisdiction of the Court. Even if CIBC Australia was subject to the jurisdiction of the Court, the best the Applicants could hope for was a Sabre type order or an order requiring it to use its best endeavours to obtain the documents from CIBC WM. Such an order is unnecessary – I am prepared to make an order of that kind directly against CIBC WM. Declarations, Orders and Costs I will grant the Applicants a declaration that by reason of the facts and matters set out in paragraph [28] above, CIBC WM has submitted to the jurisdiction of the Court. I will also make Orders in the following terms:1.By 4:00pm on 9 April 2010, CIBC WM produce to the Court any documents in the possession, custody or control of CIBC WM, including any documents located in Canada, that answer the description in the Schedule to the Subpoena issued by the Court on 18 December 2009 and the Schedule to the Subpoena issued by the Court on 10 February 2010.2.The Notice of Motion filed by the Applicants on 9 March 2010 is otherwise dismissed.3.The Notice of Motion filed by CIBC WM on 19 March 2010 is dismissed. Contrary to the submissions of CIBC WM and CIBC Australia, it is not appropriate to order the Applicants to pay CIBC WM and CIBC Australia’s costs of appearing on the application for the orders. Costs should follow the event. CIBC WM should pay the Applicants’ costs of and incidental to the Notices of Motion referred to in paragraphs [39(2) and (3)] above. Given the issues raised and the material filed, no additional costs were incurred on the part of CIBC Australia. Further, contrary to the submissions of CIBC WM, it is not appropriate for the Court now to make orders to ensure that CIBC WM are not out of pocket at all for their costs of complying with the subpoenas. Appropriate costs orders can and should be made at the return of the subpoenas: see [35] above.

Citations

AGLC Citation

Walker v Newmont Australia Ltd [2010] FCA 298

Most Recent Citation

City of Swan v McGraw-Hill Companies Inc [2014] FCA 442

Cases citing this decision · 9 of 9 shown

The Epoch Holding Group Pty Ltd v Katz (Disclosure of Documents)
[2025] FCA 271

…ion v CC (New South Wales) Pty Ltd (1995) 58 FCR 426 Walker v Newmont Australia Ltd [2010] FCA 298 Zapf Creation AG v OWT Australia Pty Ltd [2001] FCA 759 Bray, E, The Principles and Practice of Discovery ( Bray , Reeves & Turner , 1885) Zuckerman, A, Wilkins, S, Adamopoulos, AV, Higgins, A, Hooper, S, Oreb N and…
King v Smith
[2025] WASCA 6 Para 7

…Williams and Webb JJ; National Commercial Bank v Wimborne (1979) 11 NSWLR 156 at 176E-F, 177D-E, 182D-F per Holland J; Walker v Newmont Australia Ltd [2010] FCA 298 at [27] per Gordon J. In Re Dulles' Settlement (No 2); Dulles v Vidler [1951] Ch 842 at 847, Evershed MR put the issue pithily as follows: It is, of…
Registrar of the Federal Court of Australia v Mensink (Stay Application)
[2023] FCA 1581 Para 21

…; National Commercial Bank v Wimborne (1979) 11 NSWLR 156 at 176E-F, 177D-E, 182D-F per Holland J; Walker v Newmont Australia Ltd [2010] FCA 298 at [27] per Gordon J. In Re Dulles’ Settlement (No 2); Dulles v Vidler [1951] Ch 842 at 847, Evershed MR put the issue pithily as follows: It is, of course, plain that w…
Li v Wang
[2022] NSWSC 653 Para 14

…Trilogy Corporate Solutions & Anor v Fitzroy Shopfitting and Building Pty Ltd [2006] NSWSC 1026 at [11] (Latham J) and Walker v Newmont Australia Ltd [2010] FCA 298 at [29] (Gordon J). In Credit Corp Services Pty Ltd v Plant [2015] NSWSC 1685, Schmidt J ordered that Local Court proceedings be transferred to the S…
Courtney v Chalfen
[2020] QSC 195 Para 15

…lliams and Webb JJ; National Commercial Bank v Wimborne (1979) 11 NSWLR 156 at 176E-F, 177D-E, 182D-F per Holland J; Walker v Newmont Australia Ltd [2010] FCA 298 at [27] per Gordon J. In In re Dulles’ Settlement (No. 2). Dulles v Vidler [1951] Ch 842 at 847, Evershed MR put the issue pithily as follows: ‘It is,…
Kitchen v Director of Professional Services Review under s 83 of the Health Insurance Act 1973 (Cth) (No 3)
[2020] FCA 634 Para 2

…provides that the award of costs is in the discretion of the Court or Judge. I note that in similar circumstances, in Walker v Newmont Australia Ltd [2010] FCA 298, Gordon J ordered costs following the event against a non-party subpoena recipient.…
McGraw-Hill Financial Inc v City of Swan
[2014] FCA 665 Para 17

…inciple referred to by Holland J in National Commercial Bank v Wimborne (1979) 11 NSWLR 156 at 176-177 and Gordon J in Walker v Newmont Australia Ltd [2010] FCA 298 at [27]. See also the primary judgment at [117].…
City of Swan v McGraw-Hill Companies Inc
[2014] FCA 442 Para 11

…Williams and Webb JJ; National Commercial Bank v Wimborne (1979) 11 NSWLR 156 at 176E-F, 177D-E, 182D-F per Holland J; Walker v Newmont Australia Ltd [2010] FCA 298 at [27] per Gordon J. In In re Dulles’ Settlement (No. 2). Dulles v Vidler [1951] Ch 842 at 847, Evershed MR put the issue pithily as follows: “It is…
Hiralal v Hiralal
[2013] NSWSC 984 Para 1

…892) 66 LT 469 at 471, applied in National Commercial Bank v Wimborne (1979) 11 NSWLR 156 at 176-177 (" Wimborne ")and Walker v Newmont Australia Ltd [2010] FCA 298 at [29] (" Walker ").) An action that is "not consistent with or relevant to the challenge to the jurisdiction" will usually be a submission to the j…

View all 9 citing cases →

Cases cited in this decision · 19 of 19 shown

Fiduciary Ltd v Morningstar Research Pty Ltd
[2007] NSWSC 432 Para 10

…t for “presence” within jurisdiction is well settled: Wimborne 11 NSWLR 156 at 165; Fiduciary Ltd & Anor v Morningstar Research Pty Ltd & Ors (2004) 60 NSWLR 425 at [28]; Commonwealth Bank of Australia v White [1999] 2 VR 681 at [30]; BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 725 at 731-734. As Holland J said i…
Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International NV
[2007] FCAFC 43 Para 19

…diction of the Court: see Walter v Freehills (2009) 258 ALR 67 at [95]; Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International NV (2007) 157 FCR 558 at [14]-[15]; Stemcor [2004] FCA 391 at [11]. Indeed, caution must be exercised serving subpoenas “in respect of conduct outside of the jurisdiction…
Thermasorb Pty Limited v Rockdale Beef Pty Limited
[2005] NSWSC 361 Para 14

…revious subpoena was accepted by the Bank through its solicitors. See also in the context of parties submitting to the jurisdiction of the Court, Thermasorb Pty Limited v Rockdale Beef Pty Limited & Ors (2005) 190 FLR 71 at [54] where Johnson J held once a party has submitted to the jurisdiction of the Court, they necessarily “authorise the court to exercise ju…
Fiduciary Ltd v Morningstar Research Pty Ltd
[2004] NSWSC 664 Para 10

…n for legal purposes have a “presence” in a State. The test for “presence” within jurisdiction is well settled: Wimborne 11 NSWLR 156 at 165; Fiduciary Ltd & Anor v Morningstar Research Pty Ltd & Ors (2004) 60 NSWLR 425 at [28]; Commonwealth Bank of Australia v White [1999] 2 VR 681 at [30]; BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 725 at 731-734. As Hol…
Stemcor (A/sia) Pty Ltd v Oceanwave Line SA
[2004] FCA 391 Para 18

…of enforcement in Canada. It referred the Court to the decision of Allsop J (as he then was) in Stemcor (Australasia) Pty Ltd v Oceanwave Line SA [2004] FCA 391 where he stated “Australian Courts cannot enforce compliance on pain of punishment. In the absence of enforcement procedures the order is an empty threat…
Howard v National Bank of New Zealand Ltd
[2002] FCA 1257 Para 9

…ulles v Vidler [1951] Ch 842 at 847; Laurie v Carroll (1958) 98 CLR 310 at 336; Wimborne 11 NSWLR 156 at 165; Howard v National Bank of New Zealand (2002) 121 FCR 366 at [8]-[19]. Here, we are concerned with the latter circumstance – whether CIBC WM has “voluntarily submitted or waived its right to object to the juri…
Gambro Pty Ltd v Fresenius Medical Care Australia Pty Ltd
[2002] FCA 581 Para 1

…for the making of such an order are otherwise satisfied. The cases ( Sabre 46 FCR 428 and Gambro Pty Ltd v Fresenius Medical Care Australia Pty Ltd [2002] FCA 581 at [17]) identify s 23 of the Federal Court of Australia Act 1976 (Cth) (the FCA ) as the source of power to make such an order against a party to a pr…
Brealey v Board of Management Royal Perth Hospital
[1999] WASCA 158 Para 12

…WLR 156 at 176 and the authorities cited; Howard 121 FCR 366 at [19] and the authorities cited and Brealey v Board of Management Royal Perth Hospital (1999) 21 WAR 79 at [38].…
Commonwealth Bank of Australia v White
[1999] VSC 262 Para 10

…at 165; Fiduciary Ltd & Anor v Morningstar Research Pty Ltd & Ors (2004) 60 NSWLR 425 at [28]; Commonwealth Bank of Australia v White [1999] 2 VR 681 at [30]; BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 725 at 731-734. As Holland J said in Wimborne 11 NSWLR 156 at 165: First, it must be carrying on it…
Sabre Corporation Pty Ltd v Russ Kalvin's Hair Care Company
[1993] FCA 557 Para 1

…od that the party to the proceeding would be given access to the documents upon request: see Sabre Corporation Pty Ltd v Russ Kalvin’s Hair Care Co (1993) 46 FCR 428 at 432. The Applicants acknowledge and accept that until now Sabre orders have only been made against a party to a proceeding. The Applicants submit th…
Trade Practices Commission v Arnotts Ltd
[1989] FCA 645 Para 3

…On 12 February 2010, the Applicants’ solicitors sent a further letter to Mallesons which stated: We refer to: ·the subpoena dated 18 December 2009 and addressed to your client, CIBC World Markets Inc (“CIBC [WM]”); ·our letter of 9 February 2010; and ·your letters of 9 February 2010 and 11 February …
Trade Practices Commission v Arnotts Limited
[1989] FCA 883 Para 3

…g an officer of the subpoenaed party in accordance with the procedure set out in Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306. Accordingly, we seek by return an explanation of the matters raised above. If no such explanation is forthcoming, we are instructed to bring on a motion compelling your…
Laurie v Carroll
[1958] HCA 4 Para 9

…y submitted or waived its right to object to the jurisdiction: Re Dulles’ Settlement (No 2); Dulles v Vidler [1951] Ch 842 at 847; Laurie v Carroll (1958) 98 CLR 310 at 336; Wimborne 11 NSWLR 156 at 165; Howard v National Bank of New Zealand (2002) 121 FCR 366 at [8]-[19]. Here, we are concerned with the latter circ…
Sabre order in accordance with the principles set out in Sabre Corporation Pty Ltd v Russ Kalvin’s Hair Care Company
[1993] FCA 841 Para 1

…the party to the proceeding would be given access to the documents upon request: see Sabre Corporation Pty Ltd v Russ Kalvin’s Hair Care Co (1993) 46 FCR 428 at 432. The Applicants acknowledge and accept that until now Sabre orders have only been made against a party to a proceeding. The Applicants submit th…
Waller v Freehills
[2009] FCAFC 89 Para 19

…ance might be limited in circumstances involving a foreign corporation who has not submitted to the jurisdiction of the Court: see Walter v Freehills (2009) 258 ALR 67 at [95]; Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International NV (2007) 157 FCR 558 at [14]-[15]; Stemcor [2004] FCA 391 at [11…
Vertzyas v Singapore Airlines Ltd
962 F 2d 387 Para 14

…e court to exercise jurisdiction over him”; Laurie 98 CLR 310 at 334; Howard 121 FCR 366 at [14]- [19]; Vertzyas v Singapore Airlines Pty Ltd (2000) 50 NSWLR 1 at [93]-[107]; PE Nygh & M Davies, Conflict of Laws in Australia (7 th ed, 2002) at [4.80].…
[1914] 1 KB 715
[1914] 1 KB 715 Para 10

…28 TLR 128; or is carrying on his own business and not that of the foreign corporation: Okura & Co Ltd v Forsbacka Jernverks Aktiebolag [1914] 1 KB 715 (per Buckley LJ at 718-719); ……
Rein v Stein
(1892) 1 QB 753 Para 15

…rwise have by waiving objection to jurisdiction, for example, by taking a step in the proceeding inconsistent with maintaining that objection – see Rein v Stein (1982) 1 QB 753; 66 LT 469 – even if it has not entered an appearance – see Boyle v Sacker (1888) 39 Ch D 249. By such an act of voluntary submission, the for…
Rein v Stein
(1982) 1 QB 753 Para 15

…waiving objection to jurisdiction, for example, by taking a step in the proceeding inconsistent with maintaining that objection – see Rein v Stein (1982) 1 QB 753; 66 LT 469 – even if it has not entered an appearance – see Boyle v Sacker (1888) 39 Ch D 249. By such an act of voluntary submission, the foreign resp…

Legislation cited in this decision · 1

Federal Court of Australia Act 1976 (Cth)
23 2 mentions (from Para 1)

Citation:		Walker v Newmont Australia Ltd [2010] FCA 298
Parties:		DAVID ANTHONY WALKER and DALKEITH RESOURCES PTY LTD (ACN 061 721 453) v NEWMONT AUSTRALIA LTD (ACN 009 295 765)
File number:		VID 732 of 2009
Judge:		GORDON J
Date of judgment:		31 March 2010
Legislation:		Federal Court of Australia Act 1976 (Cth), s 23
Cases cited:		Arhill Pty Ltd v General Terminal Co Pty Ltd (1991) 23 NSWLR 545 BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 725 Commonwealth Bank of Australia v White [1999] 2 VR 681 Brealey v Board of Management Royal Perth Hospital (1999) 21 WAR 79 Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International NV (2007) 157 FCR 558 Fiduciary Ltd & Anor v Morningstar Research Pty Ltd & Ors (2004) 60 NSWLR 425 Gambro Pty Ltd v Fresenius Medical Care Australia Pty Ltd [2002] FCA 581 Howard v National Bank of New Zealand (2002) 121 FCR 366 Laurie v Carroll (1958) 98 CLR 310 Maconochie v Risk (Unreported, Supreme Court of New South Wales Equity Division, Kearney J, 16 February 1989) National Commercial Bank v Wimborne (1979) 11 NSWLR 156 Re Dulles’ Settlement (No 2); Dulles v Vidler [1951] Ch 842 Sabre Corporation Pty Ltd v Russ Kalvin’s Hair Care Co (1993) 46 FCR 428 Stemcor (Australasia) Pty Ltd v Oceanwave Line SA [2004] FCA 391 Thermasorb Pty Limited v Rockdale Beef Pty Limited & Ors (2005) 190 FLR 71 Vertzyas v Singapore Airlines Pty Ltd (2000) 50 NSWLR 1 Walter v Freehills (2009) 258 ALR 67 PE Nygh & M Davies, Conflict of Laws in Australia (7^th ed, 2002)
Date of hearing:	25 March 2010
Date of last submissions:	30 March 2010
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	41
Counsel for the Applicants:	Mr S Anderson SC, Mr P Wallis and Mr DC Morgan
Solicitor for the Applicants:	Holding Redlich
Counsel for CIBC World Markets Inc and CIBC Australia Ltd, non-parties:	Mr P Liondas
Solicitors for CIBC World Markets Inc and CIBC Australia Ltd, non-parties:	Mallesons Stephen Jaques

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 732 of 2009

JUDGE:	GORDON J
DATE OF ORDER:	25 MARCH 2010
WHERE MADE:	MELBOURNE