Mineralogy Pty Ltd v Sino Iron Pty Ltd

General principles 11The principles concerning the setting aside of a judgment or order were dealt with by Mason CJ in Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 301 - 303 as follows: - "The exercise of the jurisdiction to reopen a judgment and to grant a rehearing is not confined to circumstances in which the applicant can show that, by accident and without fault on the applicant's part, he or she has not been heard. It is true that the jurisdiction is to be exercised with great caution, having regard to the importance of the public interest in the finality of litigation. It is equally true...that '[g]enerally speaking, it will not be exercised unless the applicant can show that by accident without fault on his part he has not been heard'... What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases." (citations omitted) 12So far as concerns interlocutory orders, my attention was drawn to the observations of McLelland J in Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46: - "The overriding principle governing the approach of the court to interlocutory applications is that the court should do whatever the interests of justice require in the particular circumstances of the case." 13McLelland J cited with approval the observations by Buckley LJ in Chanel Ltd v F W Woolworth & Co [1981] 1 WLR 485 at 492 - 493: - "A court must remain in control of its interlocutory orders. A further order will be appropriate whenever, inter alia, new facts come into existence or are discovered which render its enforcement unjust."

Allegedly undisclosed material 14The first basis of the plaintiff's application is what it contends to be a failure by the defendants to disclosure a matter said to be relevant to the exercise of my discretion under the Act. 15That matter concerns the role to be played in these proceedings by Mr Kim Reid, a partner of Allens, the solicitors for the defendants. 16In support of the cross-vesting application heard by me on 30 April 2013, the defendants read an affidavit of Mr Gerard Woods, a partner of Allens located in Perth. 17In that affidavit Mr Woods said: - "The [defendants] are represented ... in this proceeding, by solicitors from Allens and two barristers Charles Scerri QC and Stephen Parmenter. The majority of the team of solicitors from Allens are based in the Perth office of Allens and Charles Scerri QC and Stephen Parmenter are located in chambers in Melbourne, Victoria." (emphasis added) 18In the course of email correspondence, following the making of my order of 30 April 2013, concerning the mechanics of the transfer of these proceedings to the Supreme Court of Western Australia, Mr Woods sent the plaintiff's solicitor, Mr Liam Prescott (of HopgoodGanim), an email on 1 May 2013: - "Please copy in Kim Reid on correspondence in relation to this matter". 19On 2 May 2013 Mr Prescott replied: - "I understand that you are not a litigation partner and that Kim Reid is... Are you now advising that your firm's Sydney litigation partner is going to have the carriage of this litigation and will still be involved? If so, please confirm what connection Mr Reid, as a Sydney litigation partner, has to the future conduct of the proceeding in the Supreme Court of Western Australia. If not, please confirm which litigation partner in your Perth office will be running it and we will ensure that that partner is copied to all future correspondence." 20Later on 2 May 2013, Mr Woods replied that: - "[Mr Reid's] involvement in the proceedings in Western Australia is a matter for our client, and not yours." 21By email sent at 8.55am on 3 May 2013, Mr Prescott demanded a "clear and fulsome" response to his email at [19] above. 22At 1.08pm Mr Woods replied by email asserting that the statement in his affidavit (referred to at [17] above) that "the majority" of the Allens' team involved in these proceedings "are based in the Perth office" was correct and stated that "[y]our client chose to make no submission relating to Allens lawyers who are not based in the Perth office, nor did it seek to cross-examine me in relation to my affidavit". 23Mr Woods also asserted that the correspondence annexed to his affidavit "makes it plain that Mr Reid is involved in the matters which are the subject of the dispute between our respective clients". 24Mr Woods continued: - "The structure of the national disputes practice at Allens and Mr Reid's involvement in the proceedings in Western Australia are matters for this firm and our clients, and not your client. Mr Reid will continue to be involved in the proceedings in Western Australia." 25At 2.54pm Mr Prescott replied by email: - "Without commenting on the content of your email, I understand it to confirm that Kim Reid is the litigation partner who will have the carriage of this proceeding on behalf of your clients (just as I have the carriage of it on behalf of [the plaintiff]). If this is not correct please let me know". 26Mr Woods did not reply to that email. 27Mr Zappia, who appeared for the plaintiff, submitted that I should infer from the fact that Mr Woods did not reply to Mr Prescott's 2.54 pm email that he, and thus the defendants, accepted that Mr Reid was "the" litigation partner who would have carriage of this matter on behalf of the defendants. 28Mr Jackman SC, who appeared for the defendants, accepted that the absence of response to Mr Prescott's 2.54pm email could be seen as an admission by Allens (and thus the defendants), although Mr Jackman submitted that any admission was only that Mr Reid was one of the partners - not "the only" partner - who would have carriage of the matter. 29Despite that concession, the emails exchanged later on 3 May 2013 lead me to the conclusion that I cannot draw any inference from the absence of a response to Mr Prescott's 2.54pm email. 30At 5.42pm Mr Prescott sent a further reply to Mr Woods' email of 1.08pm. In that reply, Mr Prescott did not refer to his email of 2.54pm but said, amongst other things: - "Before receipt of your email [asking that Mr Reid be copied in on correspondence in relation to the matter - see [18] above] we did not anticipate that Mr Reid, as a Sydney litigation partner, would have any ongoing involvement in this proceeding if it was to be transferred to Western Australia, or more particularly, that he would be the litigation partner having carriage of the proceeding. Had that evidence been included in your affidavit, it would have informed our client's responsive evidence and submissions and we would have been instructed to cross-examine you about it... The structure of your firm's national disputes practice (referred to in your email of today for the first time) is also a relevant matter. It should have been included in your affidavit as it is further evidence of the ability of your clients to avoid any prejudice being suffered by reason of the litigation being conducted in New South Wales... Accordingly, justice has miscarried." 31Mr Prescott then invited Mr Woods to agree that my order of 30 April 2013 be vacated and foreshadowed bringing the Notice of Motion presently before me. 32By email sent at 8.15pm on 3 May 2013, Mr Abigail Gill, a senior associate at Allens' Perth office replied to Mr Prescott's 5.42pm email: - "Given the view expressed by your client in your email, we agree that the matter should be re-listed for directions". 33In my opinion, Mr Woods' failure to respond to Mr Prescott's 2.54pm email must be considered in light of what followed. In his 5.42pm email Mr Prescott made the very serious allegation that "justice has miscarried" and, by implication, that this was because of a failure by Mr Woods to include in his affidavit of 24 April 2013 further information about Mr Reid's involvement. 34Consistently with Mr Zappia's submissions, an inference that might be drawn from Mr Woods' failure to reply to Mr Prescott's email of 2.54pm was that he accepted that Mr Woods' understanding about Mr Reid's involvement was correct. 35However, when read in the light of Mr Prescott's 5.42pm email, another equally available inference is that Mr Woods did not reply to the email because he understood that battle lines were being drawn, that another litigious encounter was imminent and that, in all circumstances, a more appropriate response was to say nothing. 36In those circumstances, I am not prepared to draw the inference Mr Zappia contended arose. 37In particular, I am not prepared to infer, as Mr Prescott appears to have understood, that: - "...if the proceeding was transferred to Western Australia then [the defendants] nevertheless intended to run it out of Sydney, with Mr Reid of Allens' Sydney office being the partner responsible for the conduct of the litigation." (see par 24 of Mr Prescott's affidavit of 7 May 2013) 38Nor do I accept Mr Zappia's submission that there was anything misleading or incomplete in the account that Mr Woods gave in his affidavit as to the likely structure and whereabouts of the legal team at Allens who would be dealing with this matter on behalf of the defendants. 39As I have mentioned, Mr Woods pointed out that counsel briefed on behalf of the defendants were from Melbourne and that "the majority of the team of solicitors from Allens" was based in Perth. I see nothing in the evidence to suggest this was not true. 40In any event, the correspondence received by Mr Prescott from Allens prior to the hearing before me on 30 April 2013 made quite clear that Mr Reid would, or might well, play a leading role in the defendants' legal team. 41On 26 March 2013, and again on 4 April 2013, Allens wrote to Mr Prescott on its Perth letterhead under the hand of Mr Woods (referencing a Perth telephone number) and Mr Reid (referencing a Sydney telephone number). 42The form of that correspondence should have made clear to Mr Prescott that, at the very least, there was a very real possibility of Mr Reid sharing with Mr Woods the responsibility for the conduct of the litigation on behalf of the defendants by the Allens legal team, were the matter to be transferred to Western Australia. 43That is a matter that could have been, but was not, explored with Mr Woods by way of cross-examination at the hearing on 30 April 2013. 44In those circumstances, I am not satisfied that there was any want of disclosure by the defendants, or those advising them. 45In any event, even if it is a fact that Mr Reid is "the" litigation partner dealing with the matter, and that the defendants intended to "run" this matter out of Allens' Sydney office, that is a matter which, in my opinion, weighs only slightly in the balance of matters to be considered in this matter and is outweighed, by a considerable margin, by the other factors to which I referred in my judgment: Mineralogy Pty Ltd v Sino Iron Pty Ltd [2013] NSWSC 466. I do not accept Mr Zappia's submission that Mr Reid's involvement goes "to the heart" of the defendants' contention that "a significant additional cost burden, and other inconvenience [would be] imposed upon the defendants" were the matter to remain in this Court. 46In my reasons of 30 April 2013 I said at [11] and again at [24], that the proceedings seem to have no connection at all with New South Wales. 47If it is a fact that Mr Reid will be running this litigation from Allens' Sydney office then, to that extent there is will be some connection between the proceedings and New South Wales. 48However, the position does remain, in my opinion as Allens stated in their letter to Mr Prescott of 4 April 2013 that: - "... there are many strong connections between the subject matter of the Proceeding and Western Australia and no apparent connection to NSW." (emphasis added)

Conclusion on alleged non-disclosure 49I am not prepared to infer that, now that the proceedings are transferred to Western Australia, Mr Reid will be "the" partner handling the matter and doing so "out of" Allens' Sydney office. 50Even if I am wrong about that, and that the inference for which Mr Zappia contends is to be drawn, it does not in my opinion provide a basis on which I should set aside my order of 30 April 2013. That is because, I do not think Mr Reid's likely involvement weighs heavily in the balance, when all other matters are considered, and because his likely involvement was clear from Allens' correspondence in any event.

Postscript 51I should add that, at the conclusion of his written submissions on the jurisdictional question to which I have referred (received by my Associate yesterday), Mr Jackman stated: "Although the Defendants do not accept that the evidence ... goes this far, it is the intention of Allens that Mr Reid will be the solicitor on the record in the proceedings, although Mr Woods and Mr McKenna [a litigation partner in Allens' Perth office] will also continue to be involved in the conduct of the litigation". 52Shortly after receipt of that submission, Mr Prescott sent my Associate an email stating that the plaintiff objected to this material. 53I read Mr Jackman's statement as a disclosure, properly made, that notwithstanding the state of the evidence, Mr Reid's involvement in the proceedings will be as stated. As Mr Prescott has objected to the material, I will do no more than note it. If I were to take the material into account, it would not affect the conclusions to which I have come.

Misapprehension of facts 54The second basis on which Mr Zappia submitted I should set aside my order of 30 April 2013 was because of a "misapprehension of fact advanced by the defendants". 55At the hearing on 30 April 2013, the defendants submitted that one reason why it was more appropriate that these proceedings be transferred to the Supreme Court of Western Australia was that the defendants were "likely to adduce evidence from a large number of witnesses who have been involved with the project over the period from 2006 to 2013" and that "it is likely that most, if not all, of these witnesses will be located in Western Australia, either in Perth or in the Pilbara". 56Mr Zappia submitted that that submission had given rise to me making a misapprehension of fact leading to my conclusion at [29] of my reasons of 30 April 2013 that: - "...the evidence shows that all, or almost all of the witnesses that the defendants propose to call and the documents to be adduced by the defendants are in Western Australia". 57The asserted basis for this "misapprehension" was that the evidence given in Mr Woods' affidavit of 24 April 2013 did not justify the submission put to me. 58In his affidavit of 24 April 2013, Mr Woods said that he anticipated that, in connection with the defendants' argument concerning cl 6.3 of the Sino and Korean Agreements (see paras [4] and [9] of my reasons of 30 April 2013), the defendants would adduce evidence concerning such matters as government approvals, native title issues, the discovery of fibrous material and delays to construction time tables and that: - "65 I expect that addressing these matters may require evidence from current and former personnel, contractors, State government employees, native title claimants and expert witnesses. 66 Given the location of the [defendants'] current and former personnel, it is likely that most, if not all, of these witnesses will be located in Western Australia, either in Perth or in the Pilbara. 67 I cannot presently identify the number of contractor witnesses that may be required to give relevant evidence. However, as an illustration of the potential volume of evidence, I am informed by Helen Dillon and believe, that: (a) there were three consulting firms engaged by the [defendants] to address archaeological and anthropological issues associated with the heritage approvals; (b) the contractors involved with the design and construction of the port included 12 design consultant firms and 17 construction contractors; (c) the contractors involved with the design and construction of the facilities located at Cape Preston (including the desalination plant, stacker and reclaimer and dewatering plant) included five design consultant firms and 13 construction contractors; (d) the contractors involved with the design and construction of the main access road (including the temporary causeway and slurry pipeline) included two design consultant firms and 8 construction contractors. 68 The [defendants] do not presently expect that any of the witnesses from which they will adduce evidence will reside in New South Wales." 59Mr Zappia pointed out that, at par [65] of his affidavit, Mr Woods referred to five possible categories of witnesses (current and former personnel, contractors, state government employees, native title claimants and expert witnesses) and yet had referred, in par [66] of his affidavit, to only one of those categories (current and former personnel). Thus, Mr Zappia submitted, Mr Woods' reference to "these witnesses" in his par [66] was a reference only to witnesses in that one category. 60I do not think this a fair reading of Mr Woods' affidavit. In my opinion, it is clear from what Mr Woods said in par [67] and [68] that his reference to "these witnesses" in par [66] was intended by him to be a reference to each of the five categories of witnesses to which he referred in par [65]. 61As I suggested to Mr Zappia in the course of argument, it is not appropriate to read Mr Woods' affidavit as if it were a statute. In any event, to the extent that there may be some ambiguity in what Mr Woods said, that could have been, but was not, explored in cross-examination. 62In my opinion, there was no "misapprehension of fact" advanced by the defendants at the hearing on 30 April 2013. 63I see this aspect of the plaintiff's submissions as being an attempt to reargue one of the matters in contention on the original application and to be a matter not relevant to my consideration of whether I should set aside the order I made on 30 April 2013.

Conclusion 64No basis has been made out to set aside my order of 30 April 2013. 65The plaintiff's Notice of Motion of 6 May 2013 is dismissed with costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 May 2013