Wilson v Manna Hill Mining Company Pty Ltd

[2004] FCA 1035

FEDERAL COURT OF AUSTRALIA

Wilson v Manna Hill Mining Company Pty Ltd

[2004] FCA 1035

PRACTICE AND PROCEDURE – costs – rule that costs follow the event – indemnity costs – whether conduct of second respondent warranted order for costs on an indemnity basis.

WAYNE STEPHEN WILSON & ANOR v MANNA HILL MINING COMPANY PTY LTD & ORS

No SAD 3004 of 2003

LANDER J
30 JULY 2004
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 3004 OF 2003

BETWEEN:

WAYNE STEPHEN WILSON
FIRST APPLICANT

GAYLE LAWTON
SECOND APPLICANT

AND:

MANNA HILL MINING COMPANY PTY LTD
(ACN 075 590 644)
FIRST RESPONDENT

DAVID GERALD MOORE
SECOND RESPONDENT

GRAHAM DESMOND HAGGER
THIRD RESPONDENT

EAST ADELAIDE COMPANY PTY LTD (ACN 010 070 612)
FOURTH RESPONDENT

DENE ROBERT SPRATT
FIFTH RESPONDENT

STEPHEN JOHN EWEN
SIXTH RESPONDENT

HODGEMORE PTY LTD (ACN 092 397 629)
SEVENTH RESPONDENT

MANNA HILL GOLD PTY LTD (ACN 106 678 540)
EIGHTH RESPONDENT

JUDGE:

LANDER J

DATE OF ORDER:

30 JULY 2004

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.The second respondent pay to the applicants their costs on an indemnity basis.

2.The fifth and sixth respondents pay to the applicants their costs on a party and party basis.

3.Mr Moore’s comments in relation to Ms Lawton at page 12 and page 13 of the transcript of the directions hearing held on 30 July 2004 be suppressed from publication.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 3004 OF 2003

BETWEEN:

WAYNE STEPHEN WILSON
FIRST APPLICANT

GAYLE LAWTON
SECOND APPLICANT

AND:

MANNA HILL MINING COMPANY PTY LTD
(ACN 075 590 644)
FIRST RESPONDENT

DAVID GERALD MOORE
SECOND RESPONDENT

GRAHAM DESMOND HAGGER
THIRD RESPONDENT

EAST ADELAIDE COMPANY PTY LTD (ACN 010 070 612)
FOURTH RESPONDENT

DENE ROBERT SPRATT
FIFTH RESPONDENT

STEPHEN JOHN EWEN
SIXTH RESPONDENT

HODGEMORE PTY LTD (ACN 092 397 629)
SEVENTH RESPONDENT

MANNA HILL GOLD PTY LTD (ACN 106 678 540)
EIGHTH RESPONDENT

JUDGE:	LANDER J
DATE:	30 JULY 2004
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. On 14 July 2004 I published reasons in this matter and asked the applicants to bring in minutes to reflect those reasons.  On 16 July 2004 I made a number of orders which affected the first, second, fifth and sixth respondents.  At that time Mr Abbott QC, who appeared for the applicants, sought an order for costs against the second, fifth and sixth respondents.  He also sought an order that the second respondent pay costs on an indemnity basis and that the fifth and sixth respondents pay costs, with the reservation that the fifth respondent be ordered to pay costs on an indemnity basis if the second respondent did not discharge his liability for costs on an indemnity basis.

2. On 16 July 2004 I adjourned the matter until 30 July 2004 because the second respondent was not present.  I should say that the fifth and sixth respondents were also not present but there was nothing unusual about that.  The sixth respondent did not attend court on any day of the trial; the fifth respondent attended occasionally.  In any event, I adjourned the matter until 30 July 2004 because I had been advised that the second respondent was then in hospital and inquiries made by my associate with the hospital were unproductive, in that I could not be satisfied when he might be released.  Apparently, he was released from hospital that afternoon but is still under treatment for a psychiatric condition.

3. The second respondent attended court this morning and I invited him to put whatever submissions he wished in opposition to first, an order for costs and, secondly, an order for costs on an indemnity basis.  He addressed me for the better part of half an hour.  During that time he accused Mr Abbott of lying, Mr Abbott's instructor of lying, the two applicants of lying, and the third respondent of lying.  In respect of some of those persons, he also said they committed perjury.

4. In my reasons, which I published on 14 July, I said that Mr Moore was a man with a strong personality which he uses to dominate others; that he was an aggressive and overbearing man who will allow nothing to stand in his way.  I assessed him in those reasons as being ruthless and fearless and, unfortunately, unprincipled.  As I said to him this morning, whilst nearing the end of his submissions, he was behaving exactly the same today as he had during the trial.

5. During his submissions he put to me matters which were quite personal relating to Ms Lawton, which need not have been said in any place but, particularly, in public.  I will suppress from publication any of Mr Moore’s references to Ms Lawton. 

6. Usually costs would follow the event.  There is nothing in this case which would suggest that any of the respondents should not pay costs.  As I remarked in my reasons, this was a case which clearly called for relief.  The conduct of the second respondent, particularly, was extraordinary, so there is no reason why each of the three respondents to whom the application is directed should not pay costs. 

7. The question, I think, is whether or not the second respondent should be ordered to pay costs on an indemnity basis.  There must be some special or unusual feature in the case to justify the Court exercising its jurisdiction to grant an order for costs on an indemnity basis.  This is one of those cases.  In my opinion, the conduct of the second respondent, which was aided and abetted by the fifth and sixth respondents, was, as I have said, extraordinary.

8. The second respondent went out of his way to attempt to wrest control of this company from the majority shareholder and to leave the majority shareholder without any redress.  His conduct was deliberate, premeditated, ruthless and unlawful.  He conducted the trial in the same way as he made his submissions this morning.  He accused everyone who disagreed with him as being liars and perjurers.  He reflected on them personally whenever it suited him to do so.  He behaved, as I have said in my reasons, in an unprincipled manner. 

9. Mr Moore’s conduct as a director was, again as I have said, extraordinary.  He used his position as a director to disadvantage shareholders and fellow directors.  He abused his position as a director.  He did so before the proceedings were commenced, after the proceedings were commenced and immediately before trial.  In my opinion, there are special or unusual features in this case which justify an order being made against the second respondent to pay indemnity costs.

10. I am not satisfied, however, that the fifth and sixth respondents were guilty of the same sort of conduct which would justify an order that they pay costs on an indemnity basis.  The ordinary order should follow.

11. I therefore make the following orders:

    1.The second respondent pay to the applicants their costs on an indemnity basis.

    2.The fifth and sixth respondents pay to the applicants their costs on a party and party basis.

    3.Mr Moore’s comments in relation to Ms Lawton at page 12 and page 13 of the transcript of the directions hearing held on 30 July 2004 be suppressed from publication.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:

Dated:             11 August 2004

Counsel for the Applicants:	M Abbott QC with D Agresta
Solicitor for the Applicants:	Iles Selley
Counsel for the First Respondent:	No appearance
Counsel for the Second Respondent:	D G Moore in person
Counsel for the Third Respondent:	No appearance
Counsel for the Fourth Respondent:	No appearance
Counsel for the Fifth Respondent:	No appearance
Counsel for the Sixth Respondent:	No appearance
Counsel for the Seventh Respondent:	No appearance
Counsel for the Eighth Respondent:	No appearance
Date of Hearing:	30 July 2004
Date of Judgment:	30 July 2004