Wright Prospecting Pty Ltd v Hamersley Iron Pty Limited [No2]

[2013] NSWSC 709

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Wright Prospecting Pty Ltd -v- Hamersley Iron Pty Limited [No2] [2013] NSWSC 709
Hearing dates:	30 May 2013
Decision date:	30 May 2013
Jurisdiction:	Equity Division - Commercial List
Before:	Hammerschlag J
Decision:	The second defendant/second cross-defendant is to pay the plaintiff's costs and the third defendant/cross-claimant's costs of the proceedings
Catchwords:	COSTS - General principles that costs are to follow the event and are not to be assigned to various issues applied
Legislation Cited:	Court Suppression and Non-Publication Orders Act 2010 (NSW) Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules
Cases Cited:	Wright Prospecting Pty Ltd v Hamersley Iron Pty Ltd [2013] NSWSC 536
Category:	Principal judgment
Parties:	Wright Prospecting Pty Ltd - Plaintiff Hamersley Iron Pty Limited - First Defendant/First Cross-Defendant Mount Bruce Mining Pty Limited - Second Defendant/Second Cross-Defendant Hancock Prospecting Pty Ltd - Third Defendant/Cross-Claimant Channar Mining Pty Ltd - Third Cross-Defendant Rio Tinto Exploration Pty Ltd - Fourth Cross-Defendant Hamersley Exploration Pty Ltd - Fifth Cross-Defendant
Representation:	Counsel: K.A. Stern SC and R. Hardcastle- Plaintiff M.J. Darke with S. German - First and Second Defendants, and all Cross-Defendants J.C. Giles - Third Defendant/Cross-Claimant Solicitors: Clayton Utz - Plaintiff Allens Linklaters - First and Second Defendants, and all Cross-Defendants Horton Rhodes Lawyers - Third Defendant/Cross-Claimant
File Number(s):	2009/323345

EX TEMPORE Judgment

1. HIS HONOUR: On 10 May 2013 I determined that Hanwright is entitled to money verdicts against MBM, and dismissed Hanwright's claims against Hamersley Iron: Wright Prospecting Pty Ltd v Hamersley Iron Pty Ltd [2013] NSWSC 536. I invited the parties to draw to my attention any further issues that required to be resolved. I also invited submissions as to costs and the parties provided brief written submissions.

Non-publication

1. Before I gave my principal judgment on 10 May 2013, the Rio parties indicated an intention to seek orders under s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) restricting publication of certain documents in evidence because they contained commercially sensitive information. Mr Darke of counsel moved orally on their behalf for such orders on 11 April 2013. There was some argument on that day but the parties agreed that the contest should await the principal judgment. The scope of the documents in dispute has since significantly narrowed. Only three documents remain in issue: the Channar Mining Joint Venture Agreement dated 16 November 1987 (court book 13675), the Partnership Agreement between Channar Mining Pty Ltd and others dated 24 May 1988 (court book 14097), and the Master Restructure Deed for the Channar Project (court book 15349).

1. Mr Darke sought to further promote the application today. However, I consider (and he correctly accepted) that an order restricting publication of the documents concerned in their entirety can on no footing be justified as necessary in the public interest or to prevent prejudice for the proper administration of justice at least for the reasons that part of their content was referred to in open Court (albeit in anodyne fashion) and they play a potentially material part in respect of one important issue in the case, namely, the existence of an association between MBM and the Channar joint venturers with respect to the winning of ore in the MBM area.

1. However, Mr Darke foreshadowed that a more targeted application related to particular parts of the documents which had particular confidentiality ramifications and which did not play any part and are not likely ever to play any part in the resolution of issues in this case.

1. I accordingly dismiss the present application but order that up to and including 21 June 2013, publication of the documents as I have described be restricted to the external legal advisers of Hanwright. The Rio parties have leave, should they be so advised, to apply, by filing and serving any motion, together with any supporting material, up to and including 21 June 2013, for non-publication orders. If such a motion is filed the non-publication order I have made shall continue in operation until that motion is determined.

Costs

1. Hanwright has succeeded.

1. They put that costs should follow the event in accordance with the general principle: see s 98(1) of the Civil Procedure Act 2005 (NSW) and Uniform Civil Procedure Rules Pt 42 r 42.1.

1. The Rio defendants submit that MBM should be ordered to pay only 75% of WPPL's costs and only 60% of HPPL's costs because, they say, the conduct of the proceedings by Hanwright entailed significant wastage of costs. In support of this they say that:

(a)   WPPL "abandoned" affidavit evidence of certain witnesses and abandoned a claim based on an extension of ore bodies in Eastern Range;

(b)   HPPL did not call its lay witnesses who had sworn affidavits and an expert mining engineer who had given a report, and abandoned a money claim against Channar Mining Pty Ltd, Rio Tinto Pty Ltd and Hamersley Exploration and abandoned an extension of ore bodies claim in relation to what is known as the Turee Syncline area and a claim for a declaration that a royalty is payable in respect of licenses in the Koodaideri and Turee Syncline areas; and

(c)   a large volume of documents was tendered but not ultimately relied on.

1. I do not consider that the Court should, in this case, depart from the general rule. This is not a case in which it is appropriate to attempt delineation of issues between those on which Hanwright succeeded and those on which it did not, let alone embark upon an attempt to assess the significance in costs terms of any such issue in the context of the proceedings as a whole.

1. All parties are sophisticated and well resourced. The dispute concerned what, on any view, is a very significant amount of money. High-level forensic skills and application were evident on both sides throughout the proceedings. Unsurprisingly Hanwright manifestly devoted significant resources to framing all possible claims and the Rio defendants did the same in framing all possible responses.

1. It was inevitable that positions would be refined and focus changed on an ongoing basis. Part of this process was that certain witnesses were not ultimately called and certain issues not ventilated (amongst others because issues originally in dispute ceased to be). However, one result was that the proceedings were shortened and the Court only had to deal with the real issues: see s 56 of the Civil Procedure Act 2005 (NSW).

1. HPPL's expert did not need to be called because of the extent of the agreement between other experts. In not proceeding with its claims in respect of other areas arrangement was made that the defendants would not take any Anshun point.

1. Discovery was substantial and the Court Book heavy, but this was also inevitable. The Court was not detained by having to deal with documentary objections. It has not been demonstrated that any perception that documents in the Court Book might have played a role, was unfounded.

1. To my observation the proceedings were conducted economically on both sides. The hearing was scheduled to take 4 weeks but was completed in 9 hearing days.

1. MBM is to pay WPPL's and HPPL's costs of the proceedings.

Final orders

1. Verdict for the plaintiff on its claim against the second defendant.

2. Verdict for the third defendant/cross-claimant on its Cross-Claim against the second defendant/second cross-defendant.

3. Judgment for the plaintiff against the second defendant in the sum of $130,816,256.83, comprising:

(a) $34,035,218.36 and $69, 284,921.27; and

(b) $7,383,946.74 and $20,112,170.46 in interest

4. Judgment for the third defendant/cross-claimant against the second defendant/second cross defendant in the sum of $130,816,256.83, comprising:

(a) $34,035,218.36 and $69, 284,921.27; and

(b) $7,383,946.74 and $20,112,170.46 in interest

5. The plaintiff's claim against the first defendant is dismissed

6. The third defendant/cross-claimant's Cross-Claim against the first defendant/first cross-defendant and the third, fourth and fifth cross-defendants is dismissed.

7. The second defendant is to pay the plaintiff's and the third defendant/cross-claimant's costs of the proceedings.

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Amendments

04 June 2013 - Omitted from earlier judgment

Amended paragraphs: Final Orders

Decision last updated: 04 June 2013