WESTERN AREAS EXPLORATION PTY LTD -v- STREETER [No 2] [2008] WASC 217

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASC 217
Case No:	CIV:2126/2006	Heard:	28 JULY 2008
Coram:	LE MIERE J	Delivered:	9/10/08
No of pages:	21	Judgment Part:	1 of 1
Result:	Leave to use discovered documents and to amend writ and statement of claim granted Application for security for costs dismissed
Category:	B
PDF Version

Parties:	WESTERN AREAS EXPLORATION PTY LTD (ACN 076 025 066) TERRENCE ERNEST JAMES STREETER DAVID CHARLES COOPERS JUNGLE CREEK MINES PTY LTD (ACN 008 795 033)
Catchwords:	Civil practice and procedure Pleadings Application for leave to amend writ and statement of claim Application for leave to use documents discovered in this action for the purposes of pleading and prosecuting a new proposed cause of action Discretion of the court Turns on own facts Corporations law Security for costs Application that the plaintiff provide security for the defendants' costs Whether there is credible testimony that there is reason to believe that the plaintiff will be unable to pay the costs of the defendants if they are successful in their defences Discretion of the court Turns on own facts Corporations Act 2001 (Cth) s 1335
Legislation:	Corporations Act 2001 (Cth), s 1335
Case References:	Allstate Life Insurance Co v ANZ Banking Group (1995) 57 FCR 360 Ariss v Express Interiors Pty Ltd (in liq) [1996] 2 VR 507 Buckley v Bennell Design & Constructions Pty Ltd (1974) 1 ACLR 301 FFE Minerals Australia Pty Ltd v Mining Australia Pty Ltd [2000] WASCA 69; 33 ACSR 739 Gemelle Investments Pty Ltd v Federal Commissioner of Taxation (1982) 1 ACLC 470 Huang v University of New South Wales (No 3) [2006] FCA 626; (2006) 154 FCR 16 Livingspring Pty Ltd v Kliger Partners [2008] VSCA 93; (2008) 66 ACSR 455 Mann v Medical Defence Union [1997] FCA 45 Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 Regal (Hastings) Ltd v Gulliver (1942) 1 All ER 378 SEA Food International Pty Ltd v Lam (1998) 16 ACLC 552 Sybron Corporation v Barclays Bank [1985] Ch 299 Temwood Holdings Pty Ltd v Oliver [1999] WASC 212 Wilden Pump Engineering Co v Fusfield [1985] FSR 581 Yandil Holdings Pty Ltd v Insurance Company of North America (1985) 3 ACLC 542

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : WESTERN AREAS EXPLORATION PTY LTD -v- STREETER [No 2] [2008] WASC 217 CORAM : LE MIERE J HEARD : 28 JULY 2008 DELIVERED : 9 OCTOBER 2008 FILE NO/S : CIV 2126 of 2006 BETWEEN : WESTERN AREAS EXPLORATION PTY LTD (ACN 076 025 066)

Plaintiff

AND

TERRENCE ERNEST JAMES STREETER

First Defendant

DAVID CHARLES COOPERS

Second Defendant

JUNGLE CREEK MINES PTY LTD (ACN 008 795 033)

Third Defendant

(Page 2)

Catchwords:

Civil practice and procedure - Pleadings - Application for leave to amend writ and statement of claim - Application for leave to use documents…

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.

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Details

Case: [2008] WASC 217
Decision Date: 9 OCTOBER 2008

CaseChat Overview and Summary

Western Areas Exploration Pty Ltd brought proceedings against Mr Streeter and others, seeking various reliefs, including an injunction and damages. The plaintiff sought leave to amend its writ and statement of claim to include a new cause of action based on documents discovered during the course of the litigation. Additionally, the plaintiff sought an order for security for costs. The defendants opposed the applications on various grounds.

The legal issues before the court were whether the plaintiff should be granted leave to amend its writ and statement of claim to include the new cause of action, whether the plaintiff should be granted leave to use the discovered documents for the purposes of pleading and prosecuting the new cause of action, and whether the plaintiff should be ordered to provide security for the defendants' costs. The court had to consider the discretion available to it in each case, and whether the applications met the appropriate threshold.

The court found that the plaintiff had made out a prima facie case for the new cause of action, and that the discovered documents were relevant and admissible. The court also found that the plaintiff had not demonstrated that it was likely to be unable to pay the defendants' costs if they were successful in their defences. The court exercised its discretion to grant leave to amend the writ and statement of claim, and to use the discovered documents. However, the court dismissed the application for security for costs.

The court made orders granting leave to use discovered documents and to amend writ and statement of claim, and dismissed the application for security for costs.

Orders

Orders of the court

Leave to use discovered documents and to amend writ and statement of claim granted

Application for security for costs dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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