BETWEEN : PILBARA IRON ORE PTY LTD (ACN 100 410 295)

Practice and procedure - Concurrent jurisdiction between Mining Warden's Court and Supreme Court - Transfer of interest in tenement conditional on completion of feasibility study - Plaint in Warden's Court for declaration condition not fulfilled - Defendant to plaint files claim in Supreme Court for specific performance - Whether plaint in jurisdiction of Warden's Court - Whether Supreme Court proceedings be stayed

Mining Act 1978 (WA), s 132

First Defendant (Applicant) : Mr P J Hannan & Mr G M Irving

1 TEMPLEMAN J: On 1 April 2008, the plaintiff (PIO) commenced this action by writ indorsed with a statement of claim. The defendants are Derek Noel Ammon (Mr Ammon) and the Director General of Mines (the Director).

2 By its prayer for relief, PIO seeks a declaration against Mr Ammon that it has earned an 80% 'joint venture interest' in mining tenement E47/1140 (the tenement) pursuant to an agreement made between them on 3 September 2002.

3 In par 5 of its statement of claim, PIO alleges that by cl 4.5 of the agreement, it was agreed that PIO could acquire such an interest on performing certain obligations, including the completion of a feasibility study during a period specified as the 'earning period'.

4 In par 10 of the statement of claim, PIO alleges that it provided the feasibility study to Mr Ammon during the earning period, in accordance with cl 4.5 of the agreement.

5 PIO claims also an entitlement to be registered as to 80% of the tenement E47/1140 and an order requiring the first defendant to execute and provide to the plaintiff a registrable transfer of that interest.

6 By a notice of motion filed on 11 April 2008, the first defendant applied to have the writ and statement of claim set aside in accordance with O 12 r 7 of the Rules of the Supreme Court 1971 (WA).

7 The usual basis for an application based on O 12 r 7, is that the court has no jurisdiction in the matter. However, as counsel for Mr Ammon accepted, that is not the case here. Counsel did not, therefore, press the application. Rather, counsel sought, and was granted, leave to amend the notice of motion to seek orders that further, and in the alternative:

[P]ursuant to Order 20 rule 19(1)(d) of the Rules of the Supreme Court and the inherent jurisdiction of the Court, all further proceedings in this action be permanently stayed.

8 The jurisdiction to stay an action under the rule referred to above, arises when the proceedings are an abuse of the process of the court. Counsel for Mr Ammon submits, and I accept, that the court could exercise its inherent jurisdiction to stay an action on the same basis.

9 Counsel submits that the action is an abuse of the court's process because the subject matter of the action is precisely the same as that raised by plaint KR1/078 filed by Mr Ammon in the Mining Warden's Court on 18 March 2008 in which PIO is named as the respondent.

10 Mr Ammon's claim in the plaint is also based on the agreement of 3 September 2002. He contends that PIO did not provide him with a completed feasibility study pursuant to cl 4.5 of the agreement and that by cl 4.4 of the agreement, PIO is deemed to have withdrawn from the joint venture. Mr Ammon therefore seeks a declaration from the Warden's Court that PIO is deemed to have withdrawn from the joint venture and that the transfer lodged by PIO on 11 March 2008 to transfer 80% of the tenement to itself, is invalid. Mr Ammon also seeks an injunction to restrain 'the Registrar' from registering the transfer. This is an inappropriate reference to the Director, who was not then joined in the plaint.

11 On 3 April 2008, Mr Ammon's plaint came before the learned Mining Warden on an application by Mr Ammon for an interlocutory injunction to restrain the registration of the transfer, and on a cross-application by PIO to stay the interlocutory proceedings in the Warden's Court.

12 The Warden granted an interlocutory injunction and joined the Director as a party. The Warden refused the application for the stay. In stating his reasons, his Honour said:

It doesn't appear to me that there [is] any particularly good reason why these proceedings should be stayed and the Supreme Court proceedings be allowed to go ahead. I make that observation on this basis: the action itself in the Supreme Court, as indeed in this court, seems to revolve around a single issue and that is whether or not PIO complied with the condition precedent to its right to be registered as to an 80% share of the ownership of the tenement.

The Warden went on to identify the issue as being whether the document which PIO claims to have been a feasibility study, should be 'described properly as a pre-feasibility study'.

From a procedural point of view it seems to me that PIO could bring a counterclaim in the Warden's Court seeking exactly the same remedies that it is seeking in the Supreme Court. The Warden's Court within its jurisdiction, as identified in s 132 of the [Mining] Act, has wide powers, including powers that the Supreme Court has in respect of similar proceedings. That is s 134. I am not trying to quote it exactly. Within that limitation, that is to say, the limitation of jurisdiction I haven't been informed of any and I can't at the moment identify any powers that it seems the Supreme Court would be likely to be asked to exercise in the Supreme Court proceedings that couldn't be sought in the Warden's Court. I can't see that there is any scope of inherent powers of the Supreme Court which a warden doesn't have would be sought to be invoked.

I take into account the fact that there is concurrent jurisdiction of the Supreme Court and the Warden's Court. There doesn't seem, as far as I can ascertain, anything within certainly the mining legislation which enables any transfer of matters between the courts and in a sense it is a matter of first in, first served, without being too flippant about it, but both parties have been aware for a considerable period of time that there is a dispute and for purposes of the interlocutory application it is my view that there is a serious dispute between the parties. Either party could have commenced proceedings in either court. The first cab off the rank was the plaintiff in these proceedings in the Warden's Court.

14 Clearly, the Warden proceeded on the basis that he had jurisdiction. That is hardly surprising, because, as is conceded by counsel for PIO, it was not suggested to the Warden that the dispute was outside the jurisdiction of his court.

15 Nor was that suggestion made in a letter dated 28 March 2008 from PIO's solicitors to Mr Ammon's solicitors in which PIO's solicitors said:

In our client's view, given the state of the lists in each of the Warden's Court and the Supreme Court, the dispute between our clients is likely to be resolved more quickly (and probably, therefore, less expensively) in the Supreme Court.

16 For the first time, in this application, counsel for PIO submits that the Warden's Court has no jurisdiction to deal with the matter. The submission is based on the proposition that the dispute does not fall within the list of 'actions, suits and other proceedings' which fall within the jurisdiction of the Warden's Court pursuant to s 132(1)(a) to s 132(1)(l) of the Mining Act 1978.

17 Section 132(1) provides:

A warden's court has jurisdiction to hear and determine all such actions, suits and other proceedings cognizable by any court of civil jurisdiction as arise in respect of -

(a) the area, dimensions, or boundaries of mining tenements;

(b) the title to, and ownership or possession of, mining tenements or mining products;

(c) water to be used for mining and any questions or disputes relating thereto;

(d) trespass or encroachment upon, or injuries to, mining tenements;

(e) specific performance of contracts relating to mining tenements or mining;

(f) transfers and other dispositions of, and charges upon, mining tenements;

(g) trusts relating to mining tenements or mining;

(h) partnerships relating to mining tenements or mining, the existence, formation, and dissolution thereof, the taking of accounts connected therewith, the contribution of the partners as between themselves and the determination of all questions arising between the partners;

(i) contribution by or between persons holding joint or several interests in mining tenements towards rent or other expenses in relation thereto;

(j) encroachment or trespass upon, or injury to, land by reason of mining, whether the land is held under this Act or otherwise;

(k) encroachments upon, injuries to, and matters affecting roads, tramways, railroads or other property of whatever kind constructed, held or occupied under this Act;

(l) the partition, sale, disposal, or division of any mining property, or the proceeds thereof, held by 2 or more persons having conflicting interests therein,

and generally all rights claimed in, under or in relation to any mining tenement or purported mining tenement, or relating to any matter in respect of which jurisdiction is under any provision of this Act conferred upon the warden's court.

18 It is submitted by counsel for PIO that the proceedings before the Warden are properly to be categorised as concerning the validity of the form of transfer, and the validity of any action by the Director in accepting that form. The primary relief claimed is said to arise from the question whether there has been a deemed withdrawal from the agreement, this being a question of construction.

19 Counsel relies on the comprehensive analysis of s 132 of the Mining Act by Barker J in Global Doctor Ltd v Hodgkinson [2003] WASCA 119; (2003) 28 WAR 286. There, Barker J, applying the decision of the High Court in O'Grady v Northern Queensland Co Ltd [1990] HCA 16; (1990) 169 CLR 356 held that:

It follows, in my view, that whether one approaches expressions such as 'in relation to' or 'in respect of' as having the effect that a connection must be 'not so exiguous as to be insignificant' (Brennan CJ) or not 'to be remote and merely incidental' (Brennan CJ and McHugh J) or 'not merely an incidental connection' (Toohey and Gaudron JJ), there must exist a sufficient connection between a proceeding in question and the touchstones of jurisdiction set out in s 132(1) of the Act. [57]

20 In my view, despite the way the claims for relief have been formulated in the plaint, the issue for determination in the Warden's Court is whether or not PIO has earned an 80% interest in the tenement. I therefore consider that there is more than a connection between the proceeding 'and the touchstones of jurisdiction': in my view, the issue falls squarely within s 132(1)(b) of the Mining Act, being a dispute as to the title to and ownership of the tenement. There is nothing in that provision which limits the nature of the dispute relating to title or ownership which may be determined in the Warden's Court.

21 I therefore see no basis on which to conclude that the Warden's Court does not have jurisdiction to deal with the plaint. That being so, as the Warden rightly said, the Warden's Court and the Supreme Court have concurrent jurisdiction in the matter.

Is the Supreme Court action an abuse of process?

22 In Royal Bank of Scotland Ltd v Citrusdal Investments Ltd [1971] 1 WLR 469, Plowman J stayed an action in the Chancery Division of the High Court in which the issue to be tried was substantially the same as that in an action before a County Court. The issue was whether the defendant's tenancy was or was not a business tenancy under the Landlord and Tenant Act 1954 (UK). That was an issue which was commonly resolved in County Courts.

23 Plowman J followed the decision of Buckley J in Thames Launches Ltd v Trinity House Corporation of Deptford Strond [1961] Ch 197. There, Buckley J held:

I understand the principle to be that if there are two courts which are faced with substantially the same question, it is desirable to be sure that that question is debated in only one of those two courts, if by that means justice can be done. (207)

Counsel for the defendants says that the principle is that a man should not pursue a remedy in respect of the same matter in more than one court. In my judgment, the principle is rather wider than that. It is that no man should be allowed to institute proceedings in any court if the circumstances are such that to do so would really be vexatious. In my judgment, it is vexatious if somebody institutes proceedings to obtain relief in respect of a particular subject-matter where exactly the same issue is raised by his opponent in proceedings already instituted in another court in which he is not the plaintiff but the defendant. [209] (Emphasis supplied)

24 In Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (1997) 18 WAR 334 the Full Court considered whether the Supreme Court had statutory or inherent jurisdiction to order a stay of arbitration proceedings. The question arose because the primary judge had granted an injunction to restrain the appellant from proceeding with arbitration proceedings after the Master had dealt with the same issues in the Supreme Court.

The power of a court to control its own proceedings and to arrest an abuse of process exists for the public interest. It has done so for centuries. It is even more critical that a court in the late 20th century should guard its processes jealously and be sensitive to the public interest. Access to justice is a critical factor in the functioning of a fair society. Court resources, both in terms of time and facilities are scarce and shrinking. This makes even more important for a court to ensure that public resources are applied in the best and most efficient means possible. The way in which parties to a dispute seek access to the public resources that the courts represent must be closely monitored. That the courts can have regard to the public interest in deciding whether there has been an abuse of process is beyond doubt: see Moevao v Department of Labour and the joint judgment of Mason CJ, Deane and Dawson JJ in Walton.

Looked at in this light the phrase 'abuse of process' is not necessarily a pejorative term. It is a question of balancing the private interests of the parties against broader public interest considerations involved in the administration of justice.

As the court's inherent jurisdiction extends to the extent necessary to enable it to act effectively, the court has the inherent jurisdiction to control all abuses of its process. This may not seem a novel statement. However, the key point here is that the inherent jurisdiction of the court is not limited only to control of its own procedures to prevent an abuse of process, but extends to enable it to stay proceedings in inferior courts or tribunals, even private arbitration proceedings, if those proceedings are an abuse of the court's process. The reason is that to abstain from intervening could prevent the court from acting effectively. (345)

26 In essence, therefore, in considering whether there has been an abuse of process in the present case, it is necessary to balance the private interests of the parties against public interest considerations.

27 It is common ground between the parties that the Supreme Court action and the plaint should not both proceed. However, in this application I am concerned only with the question whether the Supreme Court action should be stayed. There has been no application by PIO to stay the plaint. That being so, if I do not stay the Supreme Court action, it seems that it must inevitably constitute an abuse of process because of the duplication of effort necessarily involved. However, counsel for PIO submits that the decision should turn on a consideration of the factors identified by Lockhart J in Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd [1992] FCA 72; (1992) 34 FCR 287. There, the parties were engaged in litigation in the Federal Court of Australia and in the High Court of New Zealand in which similar issues were raised.

28 An application was made in the Federal Court for the Australian proceedings to be stood out of the list or stayed, pending the determination of the New Zealand proceedings, which had been commenced first. When the application was made, the Australian proceedings had reached completion of pleadings, while in New Zealand, the court had heard and refused an application for an interim injunction.

29 Lockhart J decided that the Australian proceedings should be stood out of the list. In reaching that conclusion, his Honour took into account a number of factors. They were:

• Which proceeding was commenced first.
• Whether the termination of one proceeding is likely to have a material effect on the other.
• The public interest.
• The undesirability of two courts competing to see which of them determines common facts first.
• Consideration of circumstances relating to witnesses.
• Whether work done on pleadings, particulars, discovery, interrogatories and preparation might be wasted.
• The undesirability of substantial waste of time and effort if it becomes a common practice to bring actions in two courts involving substantially the same issues.
• How far advanced the proceedings are in each court.
• The law should strive against permitting multiplicity of proceedings in relation to similar issues.
• Generally balancing the advantages and disadvantages to each party. (291)

30 In the present case, the plaint was filed some two weeks before the commencement of the Supreme Court action. However, the Director was not joined in the plaint until after the commencement of the action. That being so, counsel for PIO submits that the plaint should be regarded as having been commenced first. I do not accept that submission. In my view, proceedings must be taken as having been commenced on the date on which they are filed, whether or not parties are added later. In any event, although the Director was a necessary party, his joinder was really only a formality. As might be expected, the Director has filed a notice of intention to abide by the decision.

31 As to the second point, I cannot see that the termination of either proceeding would be likely to have a material effect on the other. The issues are the same. As the Warden observed, the claim made by PIO in the Supreme Court action could equally well have been brought by way of counterclaim in the plaint.

32 A consideration of the public interest requires a number of factors to be taken into account. The first is that although the dispute is, and always has been, within the jurisdiction of the Supreme Court, the fact that the Parliament established the Warden's Court to deal with disputes of this kind, suggests that the public interest was perceived to be best served by the resolution of such disputes in that court.

33 Furthermore, I consider that there is a public interest in permitting a party who has chosen to litigate in a particular forum to continue where he began.

34 Counsel for PIO submits that having regard to the existence of the Commercial and Managed Cases list in the Supreme Court, it is likely that the action would be tried sooner than the plaint. Even if that is so, it is not a matter of any weight. Courts dealing with cross-vesting applications have held, in effect, that such comparisons are odious: see Plantagenet Wines Pty Ltd v Lion Nathan Wine Group Australia Ltd (2006) 229 ALR 327 [62]; Goldamere Pty Ltd v Metso Minerals Industries Inc [2007] NSWSC 980, [24] - [28] and Ewins v BHP Billiton Ltd [2005] VSC 4 [46]. In any event, I have no doubt that if a matter in the Warden's Court was required to be dealt with urgently, appropriate arrangements could be made. It is not suggested that the present dispute requires urgent resolution.

35 Further, I consider that it would create a dangerous precedent if matters in the Warden's Court (or for that matter, the Magistrates or District Court) which were also within the jurisdiction of the Supreme Court, could be removed here by the simple expedient of commencing a parallel action. That would undoubtedly be contrary to the public interest as perceived by Parliament and would, of course, soon defeat the objective of the Commercial and Managed Cases list.

36 I accept that it would be undesirable for two courts to compete to see which of them determined common facts first. However, as I have noted above, the parties are agreed that this situation should not be permitted to arise here.

37 Consideration of circumstances relating to witnesses does not favour either court. Although the plaint was filed in Karratha, it has been transferred to Perth, where a Supreme Court trial would also take place.

38 As I understand it, neither the plaint nor the Supreme Court action are very far advanced. The statement of claim in the Supreme Court action is not complex. It could easily be converted into a defence and counterclaim in the plaint. As far as I am aware, there has been no discovery or interrogation in either the plaint or the action. That being so, staying the action would not result in any substantial waste of time and effort.

39 Overall, I can see no advantage or disadvantage to either party, whichever proceedings are maintained. However, I think it would be advantageous to both parties to have the issue tried in the Warden's Court. That is because I consider that the Wardens are well qualified to answer the question whether or not a document said to be a feasibility study in relation to a mining tenement, does indeed answer that description.

40 For all these reasons, I conclude that to permit the Supreme Court action to proceed would be an abuse of process and that it should therefore be stayed.