Griffin Energy Group Pty Ltd (subject to a Deed of Company Arrangement) v Laughland

Solicitors: Ashurst Australia (Plaintiffs) Allens Linklaters (Defendants) File Number(s): 2016/88818 Publication restriction: Nil

Introduction

1. Before the court are two notices of motion. One filed by the defendants on 3 June 2016 seeks a temporary stay of these proceedings pending the outcome of proceedings commenced on 4 March 2015 in the Supreme Court of Western Australia by Lanco Infratech Limited and Lanco International Pte Ltd (together Lanco) against the plaintiffs in these proceedings, Griffin Energy Group Pty Ltd (subject to Deed of Company Arrangement) (GEG), Carpenter Mine Management Holdings Pty Ltd (subject to Deed of Company Arrangement) (CMMH) and two of their respective administrators, and others (the WA Proceedings). The WA Proceedings are set down for hearing commencing on 1 March 2017. The second motion filed by plaintiffs (together, the Griffin Parties) seeks orders that certain questions in these proceedings be determined separately and in advance of all other questions in the proceedings. In broad terms, those questions concern liability, contributory negligence and apportionment, leaving damages to be dealt with later. The Griffin Parties contend that if an order is made for separate questions then the reasons for a stay no longer exist.

Background

1. On 14 December 2010, GEG and CMMH entered into a Sale Agreement with Lanco for the sale of all the issued shares in Griffin Coal Mining Company Pty Ltd and Carpenter Mine Management Pty Ltd for a total price of $740 million (less employee entitlements). The sale price was payable in instalments. The final instalment of $150 million was payable no later than four years from the completion date of the agreement. The payment was secured by three letters of credit in favour of GEG each for $50 million issued by the Singapore branch of ICICI Bank. GEG called on the letters of credit, all of which were dishonoured. Prior to calling on the letters of credit, GEG commenced proceedings seeking declaratory relief concerning when the final instalment of the purchase price became due and payable and when the letters of credit expired. Those proceedings were resolved against GEG by Hammerschlag J and on appeal, on the basis that the letters of credit expired on the day before the $150 million instalment became due and payable because of the intervention of a public holiday in Western Australia, which affected the date on which the final instalment was due and payable but not the date on which the letters of credit expired. An application for special leave to appeal to the High Court was refused.
2. As I have said, the WA Proceedings were commenced by Lanco on 4 March 2015. In those proceedings, Lanco seeks damages under s 82 of the Trade Practices Act 1974 (Cth) (the TPA) or alternatively an order varying the purchase price under the Sale Agreement pursuant to s 87 of the TPA for misleading and deceptive conduct in contravention of s 52 of the TPA in respect of the sale of the shares. The Griffin Parties have counter-claimed in those proceedings claiming the final instalment of the purchase price.
3. In these proceedings, the Griffin Parties claim damages against the defendants, who were the solicitors who acted for them on the sale of the shares (the Solicitors), for negligence or misleading or deceptive conduct in contravention of s 18 of the Australian Consumer Law in connection with the drafting of the letters of credit and advice in relation to their operation. The Griffin Parties claim as damages the amount of the final instalment together with the costs of the court proceedings in which they have been involved to recover the amounts payable under the letters of credit or the amount of the final instalment of the purchase price.
4. It is apparent that if the Griffin Parties succeed in the WA Proceedings and the amount they claim is paid by Lanco then the damages they suffer as a consequence of any breach of duty by the Solicitors will be greatly reduced. At most, it will limited to the costs of the failed proceedings before Hammerschlag J and associated appeals and possibly some of the costs of the WA Proceedings. On the other hand, if Lanco succeeds in obtaining the primary relief they seek in the WA Proceedings, it is at least arguable that GEG and CMMH will have suffered no loss at all as a consequence of any breach of duty by the Solicitors on the basis that GEG was not entitled to call on the letters of credit because it was not entitled to the payment of the final instalment of the purchase price. Alternatively, GEG and CMMH's damages may be reduced if Lanco is only partially successful in the WA Proceedings.
5. It follows that, assuming that the Griffin Parties establish that the Solicitors breached a duty that they owed, the only realistic possibility that they will recover more than the legal costs they have incurred is if Lanco are only partially successful in the WA Proceedings or the Griffin Parties obtain judgment against Lanco in the WA Proceedings and that judgment is not satisfied. The evidence is that the Griffin Parties' total claim for legal costs is in the order of $2 million. There is no evidence to suggest that any judgment obtained by the Griffin Parties in the WA Proceedings will not be enforceable against Lanco.
6. Against that background, both parties in these proceedings accept that the proceedings should not be finally determined until the outcome of the WA Proceedings is known. However, the Griffin Parties contend that the court should answer the separate questions as soon as a hearing of those questions can occur, since the answer to those questions will not be affected by the outcome of the WA Proceedings. On the other hand, the Solicitors contend that the proceedings should be stayed temporarily until the outcome of the WA Proceedings is known. At that time, the court will be in a better position to assess what should be done.
7. The evidence is that the WA Proceedings should be determined at first instance by the end of 2017. Having regard to the sums involved, I accept that there is likely to be an appeal in those proceedings. The evidence is that that appeal will not be resolved until the end of 2018. There is also the possibility of an application for special leave to appeal to the High Court. However, there are a number of points to be made about the timing of the WA Proceedings and of a stay.
8. First, the Solicitors accept that the question whether any stay should continue should be revisited once the outcome of the WA Proceedings at first instance is known. That could be achieved by limiting the stay until that time or giving the parties liberty to apply in relation to the stay. The Solicitors submit that from a practical point of view there is little difference between the two alternatives.
9. Second, although there is the possibility of an application for special leave to appeal and a grant of special leave, the prospects of that happening seem small. On its face, the WA Proceedings do not appear to raise issues that are suitable for determination by the High Court. In any event, the court will be in a better position to assess that matter once the WA Proceedings are determined at first instance.
10. Third, Lanco's ability to pay any judgment debt is likely to be known shortly after the WA Proceedings are determined at first instance if they are determined in favour of GEG and CMMH. In that event, absent a stay, GEG and CMMH will be entitled to enforce the judgment in their favour. If Lanco applies for a stay, it is to be expected that there will be an investigation into Lanco's willingness and ability to meet any judgment.
11. In practical terms then, the issue is whether the court should grant a stay for what is likely to be approximately 18 months with the possibility of an extension for a further 12 months (following a review) or whether it should order the trial of the separate questions identified by the Griffin Parties now. Realistically, the trial of those separate questions is unlikely to commence until the middle of next year and judgment in relation to them is unlikely to be handed down until the third quarter of next year.

Relevant legal principles

1. The principles relevant to the circumstances in which the court should make an order for separate questions were summarised by Einstein J in these terms in Idoport Pty Limited v National Australia Bank Limited [2000] NSWSC 1215 at [7]: … (3) The Court begins with the proposition that it is ordinarily appropriate that all issues in a proceeding should be disposed of at the one time … Accordingly, it is for the party who wishes to have a question separately determined to show that it is desirable for that to occur. (4) Without being exhaustive, the separate determination of an issue may prove to be an appropriate procedure in at least the following sets of circumstances: (a) where the resolution of that separate issue will have the effect of resolving the entirety of the litigious controversies or of substantially narrowing the field of litigious controversy: … (b) where the resolution of that separate issue carries with it a strong prospect that the parties will thereafter be able to resolve their dispute themselves and thus avoid further litigation: … (c) where there is a clear demarcation between that issue and all other issues in the case, including issues going to the credit of witnesses:… (5) Conversely, the separate determination of an issue will rarely be an appropriate procedure where: (a) there are intertwined issues of fact or law between the separated question and the other questions such that the determination of the separate question will not have any substantial effect upon the width of the field of litigious controversy or the prospect of the settlement of the balance of the litigation: …; (b) where there is a commonality of witnesses and issues of credit as between the separate issue and other issues in the case which will or may necessitate a ruling on the credit of one or more of the common witness, thus possibly precluding that same judicial officer from again dealing with the matters going to the credit of the common witness …; (c) there is a possibility that the resolution of the separate issue will not finally determine the issue but will merely result in an appeal from that decision in relation to that separate issue, creating a multiplicity of proceedings, interruption to the court and undesirable fragmentation of the proceedings … (6) The experience of courts suggests that the separation of proceedings often does not result in the quicker and cheaper resolution of proceedings as anticipated, but often has the reverse effect, merely causing added delay and expense to the resolution of the litigation. Thus, before an issue is to be separately determined, it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings: … See also Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103 at [87]ff per Ward JA.
2. It is sometimes suggested that following the introduction of the case management principles set out in ss 56-60 of the Civil Procedure Act 2005 (NSW) courts should be more willing to order separate questions: see McLean v Marshall [2013] NSWSC 1400 at [14] per Barr AJ; Integral Home Loans Pty Ltd v Interstar Wholesale Finance Pty Ltd [2006] NSWSC 1464 at [6] per Brereton J. However, the position remains that the court should only make an order for separate questions where, to quote from Kirby and Callinan JJ's judgment in Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1 at [170], the "utility, economy, and fairness to the parties are beyond question": see Solarus Projects v Vero Insurance (No 5) [2013] NSWSC 1966 at [22] (Campbell J), approved by the Court of Appeal in AAI Ltd t/a Vero Insurance v Solarus Projects Pty Ltd (Receivers and Managers Appointed) (In Liq) [2014] NSWCA 168 at [13] (Leeming JA); [22]-[23] (Barrett JA); Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103 at [91] (Ward JA).

Consideration

1. Applying those principles, in my opinion, it is not appropriate to order separate questions in this case. There are a number of reasons.
2. First, although the separate questions identified by the Griffin Parties and the remaining issues in the case are conceptually distinct, it is not at all clear that the issues can be separated entirely from a practical point of view. The case is at an early stage of preparation. Experience suggests that cases can develop in unexpected ways and it is difficult to predict with confidence now that there will not be some overlap between the issues that are sought to be determined separately and the balance of the issues in the case. It is for that reason that courts are rarely willing to try questions of liability separately from questions of damages where questions of liability and damages are tied up with questions of causation, contributory negligence and apportionment.
3. In the present case, for example, it is alleged that GEG and CMMH failed to mitigate their loss by seeking rectification of the letters of credit or seeking specific performance of the Sale Agreement. Those issues will form part of the damages hearing and may raise questions concerning the correct interpretation of the Sale Agreement and an investigation into what occurred at the time the Sale Agreement was entered into and the letters of credit were granted. But there will also need to be an investigation of what occurred at the time the Sale Agreement was entered into and letters of credit granted in determining whether the Solicitors breached any duty they owed to GEG and CMMH. It is not possible at this stage of the proceedings to say with any certainty that there will be no overlap in those two investigations.
4. Similarly, the solicitor for the Griffin Parties, Mr Lim, gives evidence that the Griffin Parties propose to call Mr McMaster, the third plaintiff, as a witness of fact in relation to the separate questions. Mr Lim gives evidence that at present he does not anticipate calling Mr McMaster in relation to the question of damages because the remaining issues relating to quantum are concerned with events after December 2014. However, if Lanco succeeds in its misleading and deceptive conduct claim, that is something that the Solicitors are likely to want to cross-examine Mr McMaster about. They may also want to cross-examine him in relation to the claim that GEG and CMMH should have pursued a rectification or specific performance claim. But they would not be able to do that if Mr McMaster is only called in relation to the separate questions.
5. Second, I do not accept that an order for separate questions is likely to result in a substantial saving in costs. All that can be said is that costs may be saved or increased (compared to the alternative of a temporary stay) depending on what happens. Costs will be saved if all questions of liability are decided in favour of the Solicitors and those findings are upheld on appeal, since it will not be necessary to have a hearing in relation to damages. Costs are also likely to be saved if the parties are able to reach a settlement following a decision in relation to the separate questions because of that decision. However, the likelihood is that the prospects of settlement will be affected more by the question of damages than the question of liability. Costs will be increased if it is necessary to have separate hearings in relation to both liability and damages. Moreover, depending on the outcome of the WA Proceedings, the parties may be able to reach a settlement of these proceedings without the need for any hearing, resulting in a significant saving of costs. It is not possible to say which of the possible outcomes is more likely, and consequently whether it is likely that costs will be saved or not. However, bearing in mind the possibilities of appeals and the chance of first instance decisions being overturned on appeal, it does seem to me that a hearing of all issues at one time is likely to be the most efficient means of finally disposing of the proceedings.
6. Third, in my opinion the difficulties associated with a temporary stay have been exaggerated by the Griffin Parties. The Griffin Parties accept that there must be a temporary stay unless separate questions are ordered. A stay may operate for up to two and a half years and possibly longer. During that time, they submit that the memories of witnesses will fade. In addition, the Griffin Parties expect to call expert evidence on the practice of solicitors who draft letters of credit. That practice may change over time, making it more difficult to obtain reliable evidence with the passage of time. The result is that if there is a stay the evidence on which the court will ultimately be required to make a decision is likely to be less reliable, which is not in the interests of justice. However, the events relevant to the separate questions occurred in 2011. As a result, recollections are likely already to have faded. On what is proposed, a stay is likely only to operate for 18 months, at which time it would be reviewed. The dispute is a commercial one in which there is likely to be substantial documentary evidence. Moreover, for reasons which I will explain, I have concluded that a stay should not operate until the parties have completed interlocutory steps in relation to the subject matter of the separate questions, which will reduce the prejudice that is likely to result from a delay.

What should be done?

1. As I have said, the parties agree that the question of damages should not be decided until the WA Proceedings are determined. It follows that if separate questions are not ordered, then there cannot be a hearing in this matter until the WA Proceedings are determined. However, it does not follow that the current proceedings must be stayed immediately. Steps could still be taken to prepare the case for hearing so that the hearing occurs as soon as possible following determination of the WA Proceedings.
2. Any work that is done in preparing the case for hearing would have to be limited to work in relation to the issues the subject of the separate questions. However, in my opinion, there would still be a number of advantages in doing that work now.
3. First, the starting point is that a plaintiff should be entitled to a hearing as soon as possible, consistently with ensuring that the interests of justice are served. That is particularly so in this list. If the parties were required to prepare the case in relation to the issues the subject of the separate questions, that would facilitate fixing a hearing date as soon as possible after the WA Proceedings are determined.
4. Second, if the parties were required to serve their lay and expert evidence in accordance with a timetable that was fixed now, that would go some way in addressing any concerns relating to the reliability of evidence arising from further delays.
5. Third, if the parties were required to serve their evidence in relation to liability now, that would assist settlement discussions that could be expected to occur after the WA Proceedings are determined, if not before.
6. The only real objection that the Solicitors raised to a proposal that the parties prepare their evidence in relation to liability now is that it may involve the parties incurring costs unnecessarily. In their submission, it may well be possible to settle the proceedings once the outcome of the WA Proceedings is known, in which case the costs of preparation will be wasted. There is no evidence before the court concerning how much those costs will be. Nor is there any means of determining the likelihood that the proceedings will settle following determination of the WA Proceedings. Moreover, as I have said, against that possibility must be weighed the fact that if the work is done now, that may facilitate settlement. No significant costs will be saved if the proceedings do not settle. Having regard to these matters, in my opinion the objection raised by the Solicitors is largely speculative. It does not outweigh the desirability of taking steps that ensure that the case can be heard as soon as possible.
7. I am conscious of the fact that if a stay does not operate immediately, then there will be a bifurcation of evidence preparation, which may create some inefficiencies. However, there is likely to be little overlap in the affidavit evidence in chief that the parties will rely on in relation to the issues that are the subject of the separate questions and the other issues in the case. If discovery is to be ordered, there is no reason why it should be restricted strictly to the issues raised by the separate questions. Any order for discovery can be tailored so as to ensure that it is unnecessary to repeat discovery once the outcome of the WA Proceedings is known. Consequently, in my opinion, any inefficiencies arising from bifurcation of the preparation are likely to be small.

Orders

1. It follows from what I have said that the proceedings should be stayed pending the determination at first instance or other resolution of Supreme Court of Western Australian Proceeding CIV 1298 of 2015 once the parties have completed all interlocutory steps directed by the court for the preparation of the case for hearing. Those steps will include the preparation of lay and expert evidence in relation to the issues the subject of the separate questions identified in the Griffin Parties motion filed on 9 June 2016.
2. The parties should bring in short minutes of order to give effect to these reasons for judgment. I will hear any outstanding dispute concerning the terms of the short minutes of order at 9.30 am on 19 August 2016 or such other time as is fixed with my Associate.
3. I will also hear the parties on costs at that time if costs of the motions cannot be agreed.

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