BTAC'S RESPONSES AND GENERAL CONSIDERATION
66 BTAC frankly concedes that the proposed amendments are necessary having regard to the contents of the witness statements filed on 22 October 2020, including the witness statement of Mr Jerome Frewen, whose evidence is accepted to be critical to proving the representations that underpin the Estoppel Claim and the Misleading or Deceptive Conduct Claim: BTAC (No 8) (at [43]). BTAC says that Mr Frewen's statement is broadly consistent with the witness statement of Mr McNally filed by Chevron.
67 It cannot be asserted, in my view, that all of the amendments arise from that difficulty. It is correct, however, to say that this is not a case where the amendments are sought be made without regard to the evidence to be led at trial. Rather it is to the contrary.
68 BTAC says the application is not premised on a change in legal team that has brought 'fresh eyes to bear' and which seeks to 'refashion the case in a way that better accords with their view as to how the case may be presented'. Rather, the application is premised on the witness statements filed and identified documentary evidence. BTAC says that the amendments are brought so that the real issues in the proceedings can be ventilated, heard and determined. However that explanation cannot and does not explain the delay in bringing this application at the last minute albeit that the possibility of an application to amend was foreshadowed in BTAC (No 8). Nor does that part of BTAC's argument explain why it is now necessary to run a claim in damages and to seek to rewrite the NT Agreement.
69 It is considerably more doubtful however in my view whether the underlying substance of the factual issues raised by the proposed amendments to the Estoppel Claim and the liability aspect of the Misleading or Deceptive Conduct Claim are substantively new. The factual enquiry continues to revolve around the content of the negotiation of the NT Agreement regarding BTAC's retention of rights and opportunities to negotiate with respect to future acts within the native title determination area. BTAC contends that against that background, there is no new issue of substance raised by the amended allegations in respect of the Estoppel Claim that Chevron has not already addressed or is not presently in a position to address.
70 As to the liability aspects, clearly the Silence Claim is new, but equally clearly it is factually interrelated with the Misleading or Deceptive Conduct Claim. BTAC says both pleas emerge from the negotiations and their background narrated, for the most part, consistently by Mr McNally and Mr Frewen and more broadly the pre-existing and well understood allegations as to the broad factual substratum of those negotiations. BTAC argues and I think correctly, that it is not the case that the Silence Claim raises for the first time an entirely new factual issue as to BTAC's knowledge of Chevron's negotiations with Onslow Salt for fill. It is already addressed in both of Mr McNally's filed witness statements and it may therefore be assumed that Chevron already intends to agitate that factual issue in its cross-claim. The suggestion that further discovery and lay evidence will be required at the expense of the existing trial dates is not well made in that context, BTAC argues.
71 In relation to the proposed pleas for relief in respect of the misleading or deceptive conduct claims, BTAC says the form of its principal alternative relief claim, being a variation of the NT Agreement is not new. That relief has been sought since May 2019. All that BTAC has done now is to provide particulars at the State's request of the variations to the NT Agreement that are sought. What is particularised reflects the form of the alleged misleading or deceptive conduct and follows as a logical consequence of that conduct.
72 BTAC says that consequently if Chevron has not yet attended to such matters as reviewing internal documents and briefing witnesses in respect of this issue, that is the responsibility of Chevron and not a basis for resisting the amendments now sought.
73 The allegation that BTAC has suffered loss and damage by reasons of Chevron's misleading or deceptive conduct is also not new, BTAC says. The substance of the proposed plea at [35(b)(ii)] and [48(b)(ii)] of Annexure A is factually similar to the presently pleaded defence at [34(c)]. BTAC now asserts an equitable set-off in respect of those damages.
74 BTAC acknowledges that the proposed plea as to loss and damages suffered (at [35(b)(i)] and [48(b)(i)] of Annexure A) is factually new. However, it does not seek to supplement the witness evidence it has already filed, nor does it anticipate adducing documentary evidence outside the existing discovery. Mr McNally is apparently the Chevron executive who had principal responsibility for negotiating the NT Agreement and it may be assumed that he is well placed to provide any relevant evidence in response to that allegation. It can be expected, BTAC argues, based on the timely production of Mr McNally's responsive witness statement that any such additional evidence can be obtained from him within a timeframe that will preserve the existing trial dates. In any event, and again, an equitable set-off is also asserted in respect of these damages and similar considerations apply to if and when the Court may consider it appropriate to hear and determine the issue relevant to quantum.
75 BTAC says that more generally it is uncontroversial to say that Chevron is a large and well-resourced company and is no stranger to litigation. Its lawyers are experienced and sophisticated litigators. Its legal team comprises senior and junior counsel, Mr McKimmie and his team, and Chevron's in-house lawyers. It is reasonable to infer that Chevron has the means and capacity to adequately respond to the proposed amendments within the time presently available before trial.
76 On the topic of delay, BTAC argues that it is not delay in the abstract that is material, but delay measured by reference to the time taken to seek leave. While the application comes near to the trial, there is little delay where leave to plead the amendments could only be sought once there was evidence supporting them. That evidence was obtained only recently in September and October 2020 and was filed on 22 October 2020. That an amendment might be forthcoming was foreshadowed in connection with, and not foreclosed by, the decision in BTAC (No 8).
77 BTAC says that it does not seek an adjournment of the trial, and disputes that one is necessary. However, it accepts that if trial dates were vacated, detriment in the form of costs thrown away would be occasioned and would be met by costs orders in the application, which BTAC has proven it can meet. In that regard, it refers to the affidavit of Mr West, indicating the financial position of BTAC.
78 Otherwise, BTAC argues that the detriment pointed to by Chevron is general in its nature. Although Chevron contends inefficiency and strains, BTAC says it has no direct or specific evidence of either of them. The risk that recollections of critical witnesses will diminish is overstated. The oral representations which BTAC relies upon were made by Mr McNally to Mr Frewen and the evidence of both persons has been filed. In any event, given that BTAC carries the onus of proof, any prejudice arising from the effluxion of time weighs more heavily against BTAC than it does against Chevron.
79 In contrast, and significantly, the prejudice to BTAC if the amendments are not permitted is that its current evidence does not conform to the current pleadings, which the present solicitors did not draw. If the amendments are not allowed, BTAC will be shut out of arguably legitimate defences to the claims brought by the cross-claimants, which cross-claims, if successful, may largely dispose of BTAC's principal claims, at least as against the State and possibly as against Onslow Salt. Chevron's argument that there is a supposed incoherence between the defences as amended and the principal claim is an issue unrelated to the proposed amendments, but rather to the defence generally and in substance as it has been run since May 2019. That contention does not provide a basis to refuse the proposed amendments.
80 In my view, BTAC's submissions are essentially correct. I would observe again, however, that almost all of the delays in this litigation have been occasioned by BTAC's conduct and that the addition of the quantum issue has added significantly to the matters to be dealt with at trial. It is patently clear on any assessment of the case that issues of quantum could not be dealt with within the current four day trial and would have to be deferred. Of course, if BTAC fails in its defence to the cross-claims, such issues will not arise in any event.
81 In relation to the Misleading or Deceptive Conduct Claim and the Estoppel Claim, it is true that new factual matters are raised, but it is not apparent how this would expand the evidence. The added background facts as pleaded at [4(b)(ii)] of the proposed pleading (at Annexure A) may or may not or be established.
82 As to the Estoppel Claim, the proposed changes are said to do two things. First, they bring the pleading into line with the actual evidence and, second, the actual evidence between the two participants in the relevant conversation is said to be significantly closer now than it would have been relying on the previous pleading. If that is so, it would seem that little time would be added to the trial, if any, and, rather, that some time might be saved. Whether it is necessary for any person, such as Mr McNally, to be reproofed on the new version is unclear, but it is certainly not clear that this exercise would be lengthy. The differences in the Estoppel Claim can be seen from [26]-[30] of Annexure A, with its existing formulation styled by strike-through text to indicate BTAC's proposed amendments. In essence, the amendments propose a reformulation of the representations alleged to have been made by Chevron and now specify the two occasions on which the representations are alleged to have been made.
83 The Estoppel Claim as amended does not seem to raise new evidence beyond that which is contained in the witness statements now filed, and sets out a basis for the estoppel argument.
84 The observations concerning the proposed amendments to the Misleading or Deceptive Conduct Claim are very similar. The same facts are relied upon. Some additional formalities are added, including a pleading as to a representation as to a future matter. The absence of reasonable grounds on which to assert a future matter may be potentially a new consideration. While at a technical level, Chevron would have the onus under the statute of proving that it did have reasonable grounds, Chevron's position has always been that the representation was not made in the way asserted or with the effect asserted by BTAC. Although there is evidence as to Chevron's belief as to its need to reproof key witnesses on these events, it is not clear that in respect of this particular pleading, delay and cost difficulties would be occasioned. The same witness would be involved. The real argument is that no such representation having the effect asserted by BTAC was ever made. It seems that the possibility of this occasioning prejudice in the sense of requiring the trial dates to be vacated is not particularly strong.
85 Paragraph 35 of BTAC's proposed further amended defence to Chevron's cross-claim introduces BTAC's claim for a variation of the NT Agreement and damages and is in the following terms:
35 In the premises pleaded at paragraphs 31-34C above, BTAC is entitled to an order under s 87(1) of the TPA, alternatively s 244 of the ACL. alternatively by way of equitable set-off, including but not limited to an order under s 87(2)(b) and/or s 82 of the TPA, alternatively s 243 and/or s 236 of the ACL:
a) to vary the [NT Agreement] so that it is consistent with the First Representation and/or the Second Representation;
Particulars
BTAC is entitled to an order:
1 inserting in cl 1.1 of the [NT Agreement] a definition of "Third Party Negotiation Rights and Opportunities" in the following terms:
"any rights BTAC and the Thalanyji people have or may have to negotiate under, or exploit opportunities to negotiate arising by reason of, the future act regime of the Native Title Act. including rights to negotiate for a fee or payment by way of compensation, for any materials supplied by third parties into the Wheatstone Project that come from the Thalanyji native title area outside of the Initial Taking Order Area."
2 varying the definition of "Native Title Rights" in cl 1.1 of the [NT Agreement] so that at the end of the definition the following words are included:
", but does not include Third Party Negotiation Rights and Opportunities."
3 varying the definition of " Interest" in cl 1.1 of the [NT Agreement] so that at the end of the definition the following words are included:
", save that any Interest is and remains subject to and does not include the Third Party Negotiation Rights and Opportunities,"
4 varying cl 5.2(A) of the [NT Agreement] to insert after the word "consents" in the second line:
", to the grant of Interests".
5 inserting after cl 19.5, the following:
"19.6 For the avoidance of doubt. the Parties agree that nothing in this Agreement affects the existence, enjoyment or enforcement of the Third Party Negotiation Rights and Opportunities by the Native Title Parties and BTAC."
b) further or alternatively, damages from [Chevron] in an amount equivalent to the value of:
i) the opportunity BTAC lost to negotiate and agree with [Chevron] an additional payment or payments to be made to BTAC by [Chevron] under the [NT Agreement] by way of compensation for any materials supplied by Onslow Salt into the Wheatstone Project that came from the Thalanyji native title area outside of the Initial Taking Order Area;
ii) further or alternatively, BTAC's claims against Onslow Salt and the State in the proceedings.
86 This is a significant addition as a matter of law and argument, but I have not been alerted to any perceived evidentiary difficulty which the addition would occasion, aside from the possibility of expert evidence on quantum which would have to be deferred in any event. The truth of the matter is that it does raise the same issues in principle that have been ventilated in the pleadings earlier exchanged. It simply seeks a new form of relief, being a rewriting of the NT Agreement. It may be for all the reasons (advanced at length by the State and alluded to by the other parties) that such relief is unlikely to be granted, but that does not seem to be a good reason to refuse an application to amend to seek the relief. It is clearly drawn with care and with some restraint and it is not an additional pleading which could be said to be doomed to failure on its face.
87 On the new Silence Claim, some similar issues arise. It is in the following terms:
26. Between early 2009 and December 2010, [Chevron], BTAC and the Thalanyji people engaged in negotiations which led to [Chevron] and BTAC entering into, first. the Heads of Agreement dated 22 July 2010 (Heads of Agreement) and, subsequently, the Native Title Agreement (negotiations).
…
Trade Practices Act - misleading or deceptive conduct by silence
36 Paragraph 26 above is repeated.
37 By no later than 29 March 2010, [Chevron] and BTAC knew:
a) [Chevron] was required to conduct the negotiations in good faith;
b) [Chevron] required large amounts of fill for the Wheatstone Project;
c) the Thalanyji native title area was a possible source of fill;
d) the future act regime of the Native Title Act applied to the Thalanyji native title area:
e) BTAC had, under the future act regime of the Native Title Act, negotiated with third parties in relation to materials to be supplied into the Wheatstone Project that came from the Thalanyji native title area and in that regard had entered into a number of agreements with developers who had applied for tenements over the Thalanyji native title area;
f) BTAC intended, under or by reason of the future act regime of the Native Title Act, to negotiate with any supplier of fill to [Chevron] who proposed to obtain the material for fill from the Thalanyji native title area outside of the Initial Taking Order Area'
g) Onslow Salt held the Mining Lease over part of the Thalanyji native title area; and
i) [sic] Onslow Salt conducted salt mining operations on the land the subject of the Mining Lease.
38 In the premises pleaded at paragraphs 37 above, [Chevron] knew that:
a) BTAC was likely to assume that, if Onslow Salt was to supply fill from land within the Thalanyji native title area outside of the Initial Taking Order Area to [Chevron] for the Wheatstone Project, then Onslow Salt would apply for a new mining tenement or for a variation to the Mining Lease; and
b) if Onslow Salt applied for a new mining tenement or for a variation to the Mining Lease, BTAC would, under or by reason of the future act regime of the Native Title Act. negotiate with Onslow Salt in respect of any application.
39 At all material times, BTAC:
a) assumed that if Onslow Salt was to supply fill from land within the Thalanyji native title area outside of the Initial Taking Order Area to [Chevron] for the Wheatstone Project, then Onslow Salt would apply for a new mining tenement or for a variation to the Mining Lease: and
b) intended to initiate negotiations in respect of that supply of fill by lodging an objection to the grant of the application.
40 While [Chevron] was negotiating the Heads of Agreement with BTAC. [Chevron] and Onslow Salt were discussing options for Onslow Salt to supply fill to [Chevron] for the Wheatstone Project. Which options did not involve Onslow Salt applying for a new mining tenement or for a variation to the Mining Lease.
Particulars
1 Email exchange between Geoff Hegney of [Chevron] and Hiro Matsuyama of Onslow Salt dated 1 July 2010
2 Document titled " Wheatstone Project Accessing Land Fill", undated, but attached to email from Geoff Hegney of [Chevron] to Hiro Matsuyama of Onslow Salt dated 1 July 2010
3 Discussion Draft of Letter Agreement between [Chevron] and Onslow Salt for the removal of fill from the Mining Lease, dated 3 May 2010
41 While [Chevron] was negotiating the [NT Agreement] with BTAC. [Chevron] had formed the intention to obtain fill from land within Onslow Salt's Mining Lease without Onslow Salt applying for a new mining tenement or having the Mining Lease varied.
Particulars
1 Document 85, emails from Geoff Hegney of [Chevron] to Hiro Matsuyama of Onslow Salt dated 21 and 23 September 2010
2 Email from Geoff Hegney of [Chevron] to Hiro Matsuyama of Onslow Salt dated 20 December 2010
3 Document 103. Discussion Paper - Wheatstone Development Project Onslow Salt Borrow Sites and Fill Material, Updated 29 October 2010
4 Document 108, email from Geoff Hegney of [Chevron] to Hiro Matsuyama of Onslow Salt dated 15 November 2010, with attachments
5 Document 115, email exchange between Rod Baker of Onslow Salt and Hiro Matsuyama of Onslow Salt between 30 November 2010 and 6 December 2010
42 In the premises pleaded at paragraphs 36, 37, 38 and 39 above, BTAC had a reasonable expectation to be fully and properly informed by [Chevron] of:
a) the matters pleaded in paragraph 40 above before BTAC executed the Heads of Agreement: and
b) the matters pleaded in paragraph 41 above before BTAC executed the [NT Agreement].
43 However, at all material times before BTAC executed the Heads of Agreement, [Chevron] did not disclose to BTAC the matters pleaded in paragraph 40 above: and at all material times before BTAC executed the [NT Agreement], [Chevron] did not disclose to BTAC the matters pleaded in paragraph 41 above.
44 In the premises, [Chevron] by its non-disclosure and silence engaged in conduct that was misleading or deceptive or likely to mislead or deceive, in trade or commerce, with regard to BTAC, within the meaning of s 18 of the ACL and/or s 52 of the TPA.
45 BTAC would not have executed the Heads of Agreement had [Chevron] disclosed the matters pleaded in paragraph 40 above until BTAC had:
a) confirmed with [Chevron] that the Heads of Agreement would not prevent BTAC from negotiating with Onslow Salt in relation to a payment by Onslow Salt to BTAC for the supply by Onslow Salt of fill extracted from within the Thalanyji native title area outside of the Initial Taking Order Area to [Chevron] for the Wheatstone Project: or
b) negotiated and agreed a variation to the Development Deed to provide for payment by Onslow Salt to BTAC for the extraction by Onslow Salt of fill from within the Thalanyji native title area outside of the Initial Taking Order Area/
46 BTAC would not have executed the [NT Agreement] had [Chevron] disclosed the matters pleaded in paragraph 41 above until BTAC had:
a) discussed the matters pleaded in paragraph 41 above with [Chevron] and, separately, Onslow Salt:
b) obtained advice on the value of the proposed extraction of fill from land within the Thalanyji native title area; and
c) negotiated an agreement with Onslow Salt which provided for payment by Onslow Salt to BTAC for the extraction of fill from within the Thalanyji native title area.
47 In the premises, by reason of {Chevron's] non-disclosure and silence. BTAC entered into the [NT Agreement]:
a) without first negotiating with Onslow Salt about, and agreeing compensation for the extraction of fill from within the Thalanyji native title area; and
b) which, if the cross-claimants are successful (which is denied):
i) denies BTAC's right, or opportunity, to negotiate compensation with Onslow Salt; and
ii) prevents BTAC from pursuing claims against Onslow Salt and the State in these proceedings which claims are predicated upon BTAC and the Thalanyji people retaining rights or opportunities to negotiate under or by reason of the future act regime of the Native Title Act, including to negotiate for a payment or payments by way of compensation, for any materials supplied by Onslow Salt into the Wheatstone Project that came from the Thalanyji native title area outside of the Initial Taking Order Area.
48 In the premises pleaded at paragraphs 36-47 above. BTAC is entitled to an order under s 87(1) of the TPA, alternatively s 244 of the ACL. alternatively by way of equitable set-off. Including but not limited to an order under s 87(2)(b) and/or s 82 of the TPA, alternatively s 243 and/or s 236 of the ACL:
a) to vary the [NT Agreement] so that it is consistent with the First Representation and/or the Second Representation;
Particulars
The particulars of paragraph 35(a) are repeated
b) further or alternatively, damages from [Chevron] in an amount equivalent to the value of:
i) the opportunity BTAC lost to negotiate and agree with [Chevron] an additional payment or payments to be made to BTAC by [Chevron] under the [NT Agreement] by way of compensation for any materials supplied by Onslow Salt into the Wheatstone Project that came from the Thalanyji native title area outside of the Initial Taking Order Area:
ii) further or alternatively, BTAC's claims against Onslow Salt and the State in the proceedings.
88 The addition of this pleading may well occasion some difficulty. However, the additional facts pleaded are confined to inferences to be drawn from a small number of documents, taken together with other facts which have already been the subject of pleading by way of different causes of action. It is not clear to me that the addition of this plea would add significantly to the length of time of the trial or to the burden of preparation for it, or that it ought be excluded for any other reason. A fair assessment of the pleading is that it adds a different basis at law for an assertion that the clause in the NT Agreement on which the cross-claimants principally rely ought not be permitted to have the effect sought or that the NT Agreement should be amended so as to give it an effect consistent with the true position between the parties.
89 Nothing I have said in these reasons should be treated as any comment on the likely success of any of the amendments sought. But while the amendments would add some legal argument, and indeed, some clarification to BTAC's pleading, I consider that the interests of justice favour the amendments being permitted and I remain of the view that the hearing of the cross-claims could have proceeded from 21 to 24 December 2020 on all issues save as to quantum. However, given the abridged time within which the present application was brought on and determined, I gave advance notice to the parties on 23 November 2020 of my decision to allow the amendments with these reasons to follow. At what was previously intended to be the pre-trial directions hearing, on 25 November 2020 Chevron sought orders to vacate the trial dates which were not opposed by any party. As a matter of record though, senior counsel for BTAC noted its non-opposition was grounded in the reasons it had advanced for a vacation in the application the subject of BTAC (No 8), and did not arise by reasons of the amendments now sought.