FEDERAL COURT OF AUSTRALIA

Apache Northwest Pty Ltd v Newcrest Mining Limited [2008] FCA 1753

Federal Court Rules 1979 (Cth)

Cellante v G Kallis Industries Pty Ltd (1992) 2 VR 653 cited

Enterprise Goldmines N L v Mineral Horizons N L (1988) 91 FLR 403 cited

Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 cited

Scarborough v Lew’s Junction Stores Pty Ltd (1963) VR 129 cited

APACHE NORTHWEST PTY LTD v NEWCREST MINING LIMITED

VID 887 of 2008

MIDDLETON J

10 NOVEMBER 2008

MELBOURNE

THE COURT ORDERS THAT:

1.                  Order 1 made by Tracey J on 17 October 2008 in this proceeding be stayed until 5.00pm on 21 November 2008.

2.                  Costs be reserved.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     The applicant, Apache Northwest Pty Ltd (‘Apache’), seeks an order that the orders made by Tracey J on 17 October 2008 in this proceeding be stayed pending the hearing and determination of this application for leave to appeal from the orders and judgment of Tracey J, also delivered on 17 October 2008. 

2                     Already the hearing of the application for leave, and if leave is granted, the hearing of any appeal, has been referred to the Full Court to be heard on 21 November 2008.  In addition, the parties have agreed, and orders have now been made, that the orders made by Tracey J for the filing and serving of the verified list of documents be extended to 28 November 2008. 

3                     The only issue remaining is whether I should stay the order of Tracey J so that Apache need not undertake a process of preparing a verified list of documents to be served, if necessary, on 28 November 2008. 

4                     I will assume that there is an arguable basis for the appeal.  The question then remains as to what is the appropriate order to make in the circumstances.  Order 52 r 17 of the Federal Court Rules 1979 (Cth) gives a discretion to stay the operation of a primary court’s orders pending the hearing determination of an appeal.  Apache need only demonstrate a reason for exercise of the discretion or that it is an appropriate case to warrant the favourable exercise of that discretion.  I accept that the demonstration of special or exceptional circumstances is not required by O 52 r 17.

5                     It is always accepted that a stay should be granted when there is a real risk that the integrity of a controversy, or the subject of the appeal, would otherwise be rendered nugatory.  An appeal’s subject matter would be rendered nugatory if there exists a real risk that it would not be possible for a successful appellant to be restored substantially to its former position if the judgment against an applicant is executed: see generally, Enterprise Goldmines N L v Mineral Horizons N L (1988) 91 FLR 403 at 410; Scarborough v Lew’s Junction Stores Pty Ltd (1963) VR 129 at 130; Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 at 66; and Cellante v G Kallis Industries Pty Ltd (1992) 2 VR 653 at 657.

6                     I accept that the task of collecting the relevant documents in this case is very substantial and would impact on the already heavy workload of personnel involved on the repair of the Varanus Island facilities.  Of course, no issue of confidentiality disclosure arises here because the verified list does not need to be disclosed prior to 28 November 2008, a date after the Full Court hearing.  Therefore the real burden upon Apache is that of collecting the relevant documents.  There will also be a cost that will not be recoverable.  Up until today, the task of collating and ascertaining where the documents are has already been undertaken by Apache.  That task will need to continue for another 18 days unless the stay is granted. 

7                     Apache relies in part upon the affidavit of Murray Stanley Durham, sworn 28 October 2008, where at paragraph 15 it is said:

15.       In the circumstances, I believe if it is necessary for Apache to cause the personnel referred to in paragraph 13 and other Apache personnel to search for and review the documents relating to the categories set out in Order 1 made by Justice Tracey on 17 October 2008 in the Primary Proceedings, this is likely to add to and impact on their existing heavy workload associated with the repair of the Varanus Island facilities and their other day to day duties.

The deponent does not suggest that the repairs cannot occur if the stay applied for today is not granted, or that other consequences will occur.  All that is suggested is that it would be adding to, and impacting on, the existing workloads.  However, I consider that this is sufficient for the purposes of indicating to the Court the impact of the task;  an impact which may involve not just consequences for Apache, but also for third parties and its other customers.

8                     On the other hand the respondent, Newcrest Mining Limited (‘Newcrest’), does have the benefit of a court order already extended in time, and may also seek relief in addition to damages, which it says may include injunctive relief, including on an interlocutory basis.  The possibility of this injunctive relief is the basis for Newcrest desiring access to the verified list as soon as possible.  I do not dwell on the prospects of that injunction being brought, or if brought, its prospects of success, but it is clear that there is a possibility that injunctive relief may be sought.  It is not said by Newcrest that such injunctive relief will be sought, just that it is a possibility.

9                     Therefore, we are left with the situation where Apache need not actually disclose the list of documents to Newcrest, but is required to prepare the verified list pending the Full Court hearing of 21 November 2008, with the date of filing the verified list now extended to 28 November 2008.  At the end of the day, it is a matter of balancing the various considerations that have been put forward by counsel on behalf of both parties.  I have come to the conclusion, accepting that some time, effort, and cost will be required or incurred by Apache in preparing the verified list (and this will impact upon Apache’s repair activities), that a stay should be granted.  After all, we are now only talking about 11 days of stay operation.  Therefore, I am prepared to provide the order for the stay.

10                  In those circumstances, I propose to order that:

1.            Order 1 made by Tracey J on 17 October 2008 in this proceeding be stayed until 5.00 pm on 21 November 2008.

2.            Costs be reserved.

Associate:

Dated:         28 November 2008