Gold & Copper Resources Pty Ltd v Minister for Resources & Energy & Anor

Term of leave to discontinue limiting further proceedings 16I will deal first with the term that Cadia sought should be imposed on Gold and Copper's application for leave to discontinue. The term it sought was, "the applicant shall not commence any further proceedings seeking to challenge the validity of ML1472 or ML1481". I did not make an order in those terms. I did not think that Cadia should be placed in a better position than if it had succeeded after a determination of the case on its merits. It would be arguable that Gold and Copper, even if it failed after a hearing on the merits, would not be precluded on principles of res judicata or issue estoppel from making a fresh challenge on a different cause of action, although it might then be faced with a defence that a second proceeding was an abuse of process or otherwise barred on the principles in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. I substantially followed the form of order made by Slattery J in C2C Investments Pty Limited & Ors v Commonwealth Bank of Australia (No. 3) [2013] NSWSC 644 at [13]. 17Counsel for Gold and Copper submitted that the Court had no power to impose such a condition. The power had been assumed by Slattery J in C2C Investments, but apparently without the benefit of argument. The relevant rule is UCPR, r 12.3. It provides: "12.3 Effect of discontinuance (cf SCR Part 21, rule 7; DCR Part 18, rule 7; LCR Part 17, rule 8) (1) A discontinuance of proceedings with respect to a plaintiff's claim for relief does not prevent the plaintiff from claiming the same relief in fresh proceedings. (2) Subrule (1) is subject to the terms of any consent to the discontinuance or of any leave to discontinue." 18Counsel for Gold and Copper argued that terms could not be imposed under subrule (2) that would have the effect of negating subrule (1). Rather, so it was submitted, the only terms that could be imposed were terms that would regulate the circumstances in which fresh proceedings claiming the same relief could be brought, or perhaps terms that might impose qualifications on a plaintiff's right to bring fresh proceedings for the same relief, but not to the extent of negating that right. 19I do not agree. Subrule (1) is itself subject to the terms of any consent to the discontinuance or of any leave to discontinue. That is to say, subrule (1) of r 12.3 does not express a principle that can only be regulated but not displaced by the imposition of terms. That is because the principle expressed in r 12.3(1) is expressly subject to terms that might be agreed or imposed. No doubt the power to impose terms on a grant of leave must be exercised judicially and for a relevant purpose. But I see no basis for the imposition of a further implied limitation. 20The learned editors of Ritchie's Uniform Civil Procedure state at [12.1.60]: "The court may grant leave to discontinue on terms as a general proposition. Terms imposed on the grant of leave to discontinue must operate against the party applying for leave. Commonly the terms will relate to the payment of the costs of the proceedings or prevent the plaintiff from bringing subsequent proceedings", and at [12.3.15]: "Discontinuance does not bar subsequent proceedings, nor even an application to revive the proceedings by setting aside the discontinuance - unless the discontinuance was on terms that no new proceedings would be brought." 21Counsel submitted that the cases cited did not support this proposition and were decided on different rules. In my view the cases cited do support the proposition stated in Ritchie. In particular, I refer to Robertson v Purdey [1906] 2 Ch 615; Heimann v Commonwealth of Australia (1940) 58 WN (NSW) 2; and American International Group Inc v London American International Corp Ltd [1982] FSR 441. 22It is true that the rule in Robertson v Purdey was O 36 r 1 of the Rules of the Supreme Court 1883 (UK), the substance of which (set out at 618) was that the plaintiff could only discontinue with leave, "on such terms as to costs and as to any other action and otherwise as may be just". Likewise, the rule in Heimann was that leave to discontinue might be given, "on such terms as to costs, or as to any other action, or as to proceedings upon any plea of set-off, or cross-action, or otherwise as may be just". 23In both cases it was made a condition of leave to discontinue that the plaintiff not bring any other action against the defendant in respect of the matters the subject of the discontinued action. Counsel submitted that Robertson v Purdey turned on the application of the Patents, Designs and Trademarks Act 1883 (46 & 47 Vict, c 57). It is true that the manner of exercise of the discretion under the rule was informed by the provisions of that Act. But as Buckley J said (at 619) the power being exercised was the power conferred by the rule of court. 24The rules in question in those cases expressly referred to the imposition of terms "as to any other action". I do not think that is a relevant ground of distinction. Absent the words, "or otherwise" the expression of the particular subject matters might be thought to be a limitation on the power to impose terms. The present rules include no such limitation as to subject matter. In my view, the rules were intended to have at least as wide a scope as their predecessors. I was not referred to anything to suggest, nor is it at all probable that the drafter of the rules intended the rules to have a narrower operation than similar rules that had governed the practice of the courts for decades. No such limitation is to be implied. That is so a fortiori because the same rule deals with the imposition of terms on a grant of leave to discontinue and the inclusion of terms in a consent to discontinuance. It is commonplace for defendants to agree to a plaintiff's discontinuing his or her proceedings on terms that a fresh proceeding for the same relief will not be brought. There is no reason as a matter of policy or principle as to why that should not be able to be done and every reason why it should be able to be done. 25Counsel for Gold and Copper also submitted that a term precluding its constituting a fresh action could not be imposed because that would be to put it in a worse position than it would be if the case were determined adversely to it on the merits. Counsel submitted that whilst such a determination would create a res judicata and could give rise to issue estoppels, those would be matters of defence and would not preclude the institution of a fresh proceeding, even if to do so would be an abuse of process. I do not agree. The submission appears to me as contrary to s 91(2) of the Civil Procedure Act which provides in substance that if the court dismisses proceedings following a determination on the merits, or dismisses any claim for relief following a determination on the merits, the plaintiff is not entitled to claim relief in respect of the same cause of action in any subsequent proceedings commenced in that or any other court. The restraint in the section is against making a claim, that is, by instituting a proceeding. No doubt a proceeding could be brought following a determination of the merits seeking a claim for the same relief which had been the subject of that determination, albeit in breach of s 91(2). There would be nothing physically to prevent the originating process being filed in the registry. The proceeding would be liable to be struck out. In the same way there would be nothing physically to prevent a plaintiff from filing fresh proceedings in breach of a term imposed on the grant of leave to discontinue, albeit presumably the proceeding would be liable to be struck out. 26The real question is whether it is just that the terms sought by Cadia be imposed on the grant of leave to discontinue. The same question arises on Cadia's application that a term be imposed pursuant to s 91(1) as a term on which the order for dismissal of the proceedings for want of prosecution or for breach of the court's orders, is to be made. In support of its submission that such a term should be imposed Cadia pointed to the following matters. 27First, it submitted that Gold and Copper had behaved unreasonably throughout the proceeding and had repeatedly been in default of the court's orders. It submitted that Gold and Copper had given no notice of its intention to discontinue until the final hearing was imminent, thereby exacerbating the costs and inconvenience to the respondents. The notice of Cadia's intention to discontinue or to seek leave to do so was not given until 24 September 2014. The particular defaults referred to were Gold and Copper's failure to comply with orders for the exchange of evidence and the provision of written submissions with respect to its Notice of Motion seeking leave to amend and the Minister's Notice of Motion of 21 November 2013 seeking the summary dismissal of the Summons. The matter was relisted twice before the Registrar owing to Gold and Copper's failure to comply with the timetable. 28As I have said, Gold and Copper was in default of orders made for the provision of a tender bundle, an outline of opening submissions, a statement of issues and a chronology. It was required to provide $60,000 as security for Cadia's costs by 18 September 2014 but did not comply with that order. 29The second ground relied on for the imposition of the term is that Gold and Copper has not provided any evidence, nor any explanation in correspondence or in submissions, as to why it was seeking leave to discontinue and why it was not seeking to proceed with the hearing if the terms on which it sought to discontinue were not accepted by the other parties or by the Court. 30Thirdly, Cadia and the Minister were ready to deal with the claim. Gold and Copper gave no explanation as to why it was not ready, if it was not, nor as to why it did not wish to pursue its claim now. 31Having regard only to these matters I do not think it just that the respondents be exposed to the hazard of future litigation, with the disruptions that litigation necessarily entails, when they have been ready to deal with the matter now, but Gold and Copper without explanation withdraws from the contest. 32Cadia also relies upon an additional matter of particular potential prejudice that would be occasioned by the delay that would arise if the present claim were withdrawn, but reinstated at a later date. 33The areas covered by mining leases 1472 and 1481 are used, according to Cadia's evidence, for "mining purposes" within the very particular meaning given to that expression under the Mining Act. Section 6 of the Mining Act as inserted by the Mining Amendment Act 2008 (NSW) with effect from 15 November 2010 provides that a person must not carry out a mining purpose except in accordance with an authorisation in respect of the land where the purpose is carried out. Clause 99 of Schedule 6 to the Act provides that s 6 does not apply to or in respect of a mining purpose carried out, or in the course of construction, before the commencement of that section. However, clause 99 ceases to have effect at the end of five years after the commencement of s 6. Cadia says that it was carrying out mining purposes on the lands in question before the introduction of s 6. If, as Gold and Copper asserts, the mining leases were wholly invalid, Cadia would have until 15 November 2015 to obtain new authorisations for those activities. It would suffer particular prejudice if it were found that the mining leases were invalid, but that decision was delayed. I think this is an additional and powerful ground of the imposition of the term sought by Cadia. 34On 18 September 2014 which was six days before Gold and Copper's solicitor received instructions to discontinue the proceedings, he advised Cadia's solicitor in effect that in the light of a very recent decision of Biscoe J, his client was considering seeking a statement of reasons from the Minister. The decision of Biscoe J referred to was Gold and Copper Resources Pty Limited v Newcrest Mines Limited [2014] NSWLEC 148. In that case Gold and Copper challenged the validity of the Minister's decision to renew an exploration licence (at [18]). At the same time as it filed its Summons on the Minister it served a notice pursuant to UCPR, r 59.9 requiring the Minister to provide a statement of reasons for his decision that was to be challenged. The sole ground on which Gold and Copper challenged the Minister's decision had already been determined against it in earlier proceedings (at [19], [21], [22] and [28]). Biscoe J recorded that Gold and Copper conceded that "The issue estoppel and Anshun estoppel points defeat the sole ground of judicial review identified in the summons". Biscoe J held that the proceedings should not be summarily dismissed for that reason, but should be kept on foot essentially, as I read his Honour's reasons, so that the Minister could be required to provide a statement of reasons which would enable Gold and Copper to ascertain whether there might be another ground of challenge open to it. 35Rule 59.9 was introduced on 15 March 2013. It does not apply to pending proceedings and hence does not apply to this proceeding (r 59.1(2)). 36No-one from Gold and Copper gave evidence to the effect that the reason it proposed to discontinue was to bring a fresh proceeding seeking a statement of the relevant Minister's reasons for granting the mining leases in 2000 or 2001. It did not proffer an undertaking to commence any such action promptly and to prosecute it expeditiously. Rather, it raised what it contended was a right that could properly be available to it which should not be stymied by the imposition of terms against commencing a fresh claim for the same relief. 37Any benefit Gold and Copper might obtain from such a course is more theoretical than real. I am told that it has had access to the departmental file and I understood this to be common ground. The decisions to grant the mining leases were made 13 or 14 years ago. I accept Cadia's submission that there is no realistic prospect of the Minister's being in a position to provide reasons for the decisions made in 2000 or 2001 by his predecessor other than those that might be revealed by the file to which Gold and Copper has had access. Cadia also points out that a statement of reasons in any event is to be a statement of actual reasons and not a construction (Phosphate Resources Ltd v Minister for the Environment Heritage and the Arts (No. 2) [2008] FCA 1521 at [172]). 38In my view it would not be just to expose Cadia to the risk of delayed further challenges on the basis of what can be no more than a speculation that a ministerial statement of reasons, if one could ever be obtained, might provide a ground of challenge not apparent from materials already available. 39For these reasons I considered that the term proposed by Cadia, but limited to the causes of action pleaded, should be imposed as a condition of discontinuance. 40For the same reasons, it is an appropriate term to be made as a term of an order for dismissal of the proceedings.

Terms as to costs on leave to discontinue 41I turn then to my reasons in respect of the imposition of terms as to costs on a grant of leave to discontinue. 42On 8 July 2014 the solicitors for Cadia, writing on behalf both of Cadia and the Minister, served seven offers of compromise under cover of the letter dated 8 July 2014. The letter of 8 July 2014 set out reasons why the respondents contended that Gold and Copper's proceeding was bound to fail. The letter stated that if the offers of compromise were for any reason ineffective as offers of compromise under the rules, then the offers were made without prejudice save as to costs in accordance with the principles in Calderbank v Calderbank [1975] 3 All ER 333. 43It is only necessary to consider the first of the offers of compromise. It was an offer by both respondents to compromise the whole of the claim in the proceeding on terms that the Amended Summons filed on 22 July 2013 be dismissed with no order as to costs. 44Separate offers of compromise were made in respect of what were called the applicant's claim set out in particular paragraphs of the Amended Points of Claim filed on 15 April 2014. It is unnecessary to form any view on the utility of the further offers of compromise. It is not suggested that service of the other offers of compromise in any way affected the validity or effect of the offer of compromise of the whole of Gold and Copper's claim. 45Nor was it disputed that that offer of compromise was made in accordance with r 20.26. 46Gold and Copper rather submitted that at the time the offer of compromise was made there was no genuine element of compromise. If significant costs had not been incurred at the time the offer was served then there would be substance in that contention (Taheri v Vitek (No. 2) [2014] NSWCA 344 at [10]). But in this case substantial costs had been incurred up to 8 July 2014. I understood Gold and Copper's argument to be based on the proposition that if the proceeding had been determined at the time the offer of compromise was served and if an order for costs had been made at that time, it was inevitable that the order would have been that each party bear its and his own costs, or perhaps that it was inevitable that such an order would be made at least up to the date of the amendment made to the Mining Act and that no significant costs would have been incurred thereafter. The latter proposition however would not appear to be correct having regard to the proceedings before Craig J and the notices of motion with which his Honour dealt. 47In any event, I do not agree either with the premise of the argument, nor with its logic. It was by no means inevitable at that time that if a costs order were to be made that there would be no order as to costs. Whilst the amending legislation is a supervening event that might have produced a different order than that costs follow the event, that was by no means inevitable. Cadia and the Minister could have argued, as they do in this hearing, that there were strong discretionary reasons for refusing relief in any event having regard to the delay in proceedings being instituted, prejudice to Cadia arising from delay in terms of expenditure incurred that might be wasted if the claim succeeded, and arguable futility in that it is said that the Minister would be bound to grant mining leases to Cadia because they are necessary for the carrying out of activities authorised under existing and separate approvals for a project known as Cadia East. 48Moreover, it seems to me that the inquiry raised by the argument is not the right inquiry. The question as to whether there is a genuine element of compromise is to be determined by comparing what a party is claiming, perhaps what it is genuinely claiming, on the one hand, and what it is offering by way of compromise on the other. The assessment of the element of compromise is not determined by hypothesising an adjudication of the position at the time the offer is made and comparing that hypothetical adjudication with the offer. Such an approach would deprive offers of compromise and the rules relating to them of much of their efficacy. 49As I have said it was made clear during the course of argument that if the proceeding is not discontinued, it would be dismissed. In deciding what terms as to costs should be imposed on the giving of leave to discontinue, it was appropriate to impose as a term of leave the order that would be made on dismissal of the proceeding having regard to the offer of compromise. Dismissal of the proceeding is an outcome no more favourable to the plaintiff than the terms of the offer. Unless the court were to otherwise order, the respondents are entitled to indemnity costs from the day following the offer being made pursuant to r 42.15(2)(b). In my view there is no reason to make an order otherwise. 50The respondents accepted that there should be a carve-out in respect of costs that related to the s 65 issue, in respect of which it was common ground on the argument about leave to discontinue that there should be no order as to costs. However, costs have been incurred in relation to other issues that continued to be of relevance after Gold and Copper filed its Amended Points of Claim. In particular, Cadia pointed to the costs of preparing extensive affidavits relating to the discretionary defences. That work was as applicable to its defence of the Amended Points of Claim as it was to its defence of the claim before amendment. As Gold and Copper was seeking to discontinue its claim on the amended grounds, and as costs had been incurred that were relevant to the defence of those amended grounds, I considered that the respondents were entitled to their costs of defending the claim on those grounds, irrespective of when the costs were incurred. That would include the costs of preparing affidavits relevant to the discretionary defences. It would also include the costs in relation to other issues, such as the validity of s 137 of the Mining Act that was challenged by Gold and Copper and was relevant to the claim both before and after its reformulation. 51The Minister also contended that the costs of his Notice of Motion of 21 November 2013 should follow the costs of the disposition of the Amended Points of Claim. Orders had been made by consent that the costs of the Minister's Notice of Motion should be costs in the cause. I agree with the submission of counsel for the Minister that those orders plainly contemplated that they should be costs in the cause as reformulated by Gold and Copper. 52It was for these reasons that I made orders providing for the terms as to costs which would be a condition of the grant of leave to discontinue. 53The reason for order 2 made yesterday is that it may be insufficient simply to grant leave to a party to discontinue on terms as to costs unless those terms are embodied as an order of the court, because it is necessary to have an order for costs in order to proceed to an assessment (Legal Profession Act 2004 (NSW), s 353(1)). 54Because Gold and Copper did not take up the grant of leave on the terms on which it was offered, I think it appropriate now to discharge orders 1 and 2.

1. I order that orders 1 and 2 made on 9 October 2014 be discharged. 55That does not affect order 3 made on 9 October 2014 that otherwise the applicant's Notice of Motion dated 1 October 2014 be dismissed with costs. 56These proceedings should be dismissed on the grounds of both want of prosecution and on the grounds of breach by Gold and Copper of the orders to which I have previously referred. The order for dismissal is made pursuant to s 61 of the Civil Procedure Act and r 12.7.
2. I order that the proceedings be dismissed.
3. For the reasons I have given I order pursuant to s 91(1) of the Civil Procedure Act that it be a term of the dismissal that the applicant may not commence further proceedings against the respondents or either of them on the same cause of action or causes of action pleaded in the Amended Points of Claim. 57The remaining question is what order for costs should be made in the proceedings. 58On the argument for leave to discontinue the respondents accepted that there should be no order as to costs, in so far as the costs related only to the applicant's ground of challenge based on s 65(2) of the Mining Act. They accepted that the amending legislation is a supervening event that warranted such a departure from the position that otherwise obtains pursuant to r 42.1 and r 42.19. There is no relevant difference in the approach to the making of orders for costs following a discontinuance under r 42.19, and following a dismissal of proceedings under r 42.20. In both cases the starting point is that the applicant pay the respondents' costs. 59The respondents submitted that because the proceedings were being dismissed for want of prosecution and for breach of orders, different considerations applied such that their previous concession was no longer warranted or appropriate. However, Gold and Copper's unwillingness to further prosecute the proceeding and the breaches of the orders, save in some comparatively small respects, do not appear to me to be relevant to the issue concerning the costs incurred in dealing with the s 65 issue. The qualification is that some of the defaults related to the preparation for the hearing of the two notices of motion that were dealt with by Craig J on 9 April 2014. But those matters would have been taken into account in the costs orders made in respect of the notices of motion and, in any event, appear to me not to be of particular significance. 60In my view, the same reasons as I have given for the terms as to costs that I imposed on the grant of leave to discontinue apply to the orders to be made for the costs of the proceedings. I will make orders accordingly. The orders for costs that I will make are not to affect costs orders that have already been made. 61For these reasons I make the following further orders:
4. That the applicant pay the respondents' costs of the proceedings on the ordinary basis up to and including 8 July 2014 and on the indemnity basis from 8 July 2014.
5. That the costs payable pursuant to order 4 do not include costs incurred by the respondents that relate only to the applicant's ground of challenge based on s 65(2) of the Mining Act in relation to which each party is to bear its and his own costs.