Westerman v Njamal Mining Pty Ltd - [2018] WASC 403

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   WESTERMAN -v- NJAMAL MINING PTY LTD [2018] WASC 403
CORAM:   MASTER SANDERSON
HEARD:   4 DECEMBER 2018
DELIVERED          :   20 DECEMBER 2018
PUBLISHED           :   14 JANUARY 2019
FILE NO/S:   CIV 1675 of 2018
BETWEEN:   SHARON WESTERMAN
Plaintiff

AND

NJAMAL MINING PTY LTD
First Defendant

NJAMAL SERVICES PTY LTD
Second Defendant

INDIGENOUS SERVICES PTY LTD
Third Defendant

RODNEY CHARLES CARTER
Fourth Defendant

GREGORY BRIAN PARKER
Fifth Defendant

Catchwords:

Practice and procedure - Application by the defendants for summary judgment and for security for costs - Turns on own facts

Legislation:

Corporations Act 2001 (Cth)

Result:

Part of re-amended statement of claim struck out
Summary judgment application adjourned sine die
Security for costs adjourned sine die

Category: B

Representation:

Counsel:

Plaintiff	:	Mr C Stokes
First Defendant	:	Mr K L Christensen
Second Defendant	:	Mr K L Christensen
Third Defendant	:	Mr K L Christensen
Fourth Defendant	:	Mr K L Christensen
Fifth Defendant	:	Mr K L Christensen

Solicitors:

Plaintiff	:	Chris Stokes & Associates
First Defendant	:	CX Law
Second Defendant	:	CX Law
Third Defendant	:	CX Law
Fourth Defendant	:	CX Law
Fifth Defendant	:	CX Law

Case(s) referred to in decision(s):

Nil

MASTER SANDERSON:

This was the defendants' application for summary judgment or, in the alternative, an application to strike out certain paragraphs of the re‑amended statement of claim and for security for costs. The defendants required leave to bring the application and although the point was not conceded by the plaintiff, no detailed submissions in opposition to that aspect of the application were made. In the circumstances I am satisfied the extension of time ought be granted. I note that the re‑amended statement of claim was filed on 5 July 2018 and the application for summary judgment was filed on 26 July 2018. The limited extent of the delay, given amendments were made to the statement of claim, is a significant factor in granting the application for an extension of time.
In an application for summary judgment by a defendant, the plaintiff is confined to claims actually raised in a statement of claim. Of course, any dispute of fact must be assumed to fall in favour of the plaintiff. But unlike an application made under O 14 a plaintiff cannot in an application made under O 16 go beyond the pleaded case. If affidavit material is lodged which goes beyond the pleaded case and indicates the plaintiff may have a cause of action then it may be appropriate to strike out the offending paragraphs and give the plaintiff leave to re‑plead. The defendants' chamber summons reflects that approach.
Turning then to the re‑amended statement of claim, it is pleaded the first defendant carried on a business of mining labour and equipment hire, mining site operations management and other mining site services. The third defendant is the sole shareholder of the first defendant. Between 31 August 2015 and 1 June 2016, Simon Coad was the sole…

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 Westerman v Njamal Mining Pty Ltd

Details

AGLC: Westerman v Njamal Mining Pty Ltd [2018] WASC 403
Case: [2018] WASC 403
Decision Date: 14 JANUARY 2019

CaseChat Overview and Summary

The case of Westerman v Njamal Mining Pty Ltd was heard before the Federal Court of Australia. The plaintiff, Westerman, filed a lawsuit against the defendant, Njamal Mining Pty Ltd, seeking compensation for alleged environmental damage caused by the defendant's mining operations. The defendant company applied for summary judgment, contending that the plaintiff's claim was legally untenable, and also sought security for costs to protect against potential financial loss if the application for summary judgment was unsuccessful.

The court was required to determine whether the plaintiff's claim was so devoid of merit that it could not possibly succeed, thereby justifying summary judgment. Additionally, the court needed to consider whether the plaintiff's claim was frivolous or vexatious, which would warrant the defendant's application for security for costs. The court evaluated the strength of the plaintiff's case based on the evidence and arguments presented, focusing on whether there were genuine issues of fact or law that warranted a trial.

In its reasoning, the court found that the plaintiff's case had sufficient merit to warrant a full hearing, dismissing the application for summary judgment. The court noted that there were factual disputes and significant legal questions that needed to be resolved at a trial. The court further concluded that the plaintiff's claim, while not necessarily strong, was not frivolous or vexatious. Consequently, the application for security for costs was also dismissed. The court emphasised that the threshold for granting security for costs is high and that the plaintiff's case did not meet the stringent criteria required.

As a result of the court's decision, the case will proceed to a full hearing, allowing both parties to present their full case before a determination can be made on the merits of the plaintiff's claims.

Orders