FEDERAL COURT OF AUSTRALIA

Imperial Granite & Minerals Pty Ltd v Olympia Resources Limited
[2009] FCA 1307

Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 5(4)(b)(iii)

Trade Practices Act 1974 (Cth), s 52, s 82 

IMPERIAL GRANITE & MINERALS PTY LTD (ACN 080 314 012) and JOHN WILLIAM BENGER v OLYMPIA RESOURCES LIMITED (ACN 077 221 722); OLYMPIA RESOURCES LIMITED (ACN 077 221 722) v ALAN KEVIN LOCKETT

NSD 872 of 2009

FOSTER J

11 NOVEMBER 2009

SYDNEY

THE COURT:

1.         ORDERS that the applicants have leave to discontinue their claim made pursuant to s 52 and s 82 of the Trade Practices Act 1974 (Cth) by deleting paragraphs 18 to 24 of the Statement of Claim filed herein and by making appropriate consequential changes to the Application.

2.         ORDERS that a Notice of Discontinuance effecting such discontinuance be filed and served by no later than 17 November 2009.

3.         GRANTS leave to the respondent/cross-claimant to discontinue its Cross-Claim against the cross-respondent (Mr Lockett) upon terms that there be no orders as to the costs of that Cross-Claim.

4.         ORDERS the applicants to pay the respondent’s costs thrown away as a consequence of the discontinuance of the applicants’ claim made pursuant to s 52 and s 82 of the Trade Practices Act, such costs to be taxed and paid forthwith if not agreed.

5.         GRANTS liberty to Mr Lockett to apply to seek costs in respect of the Cross-Claim should he be so advised, such application to be made by no later than 17 November 2009.

6.         ORDERS that, pursuant to s 5(4)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), the whole of the proceedings be transferred to the Supreme Court of the Northern Territory.

7.         DIRECTS the solicitors for the respondent to inform Mr Lockett of the orders made this day by no later than close of business today.

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                          These proceedings were commenced on 17 August 2009.  In the Statement of Claim, the first and principal cause of action relied upon is a claim based upon a document described in the Statement of Claim as the “Option Deed” and an Amending Deed.  The claim based upon those documents is a claim in contract. 

2                          In addition, in paragraphs 18–24 of the Statement of Claim, the applicants pleaded a case against the respondent based upon s 52 and s 82 of the Trade Practices Act 1974 (Cth).  The essence of this cause of action was that, prior to entering into the Option Deed, the applicants were misled by a misrepresentation made by a director of the respondent.  For this contravention, damages were claimed.  

3                          The proceedings were initially returned before me on 9 September 2009.  On that occasion, I made directions designed to ready the matter for hearing.  Included within those directions was a direction concerning the filing of a Defence.

4                          On 23 September 2009, the respondent filed a Defence.  On the same day, it also filed a Cross-Claim against Mr Alan Kevin Lockett who was, at the relevant time, a director of the respondent.  Mr Lockett was said to be the person who had made the alleged pre-contractual misrepresentation on behalf of the respondent in respect of which the applicants sued the respondent. 

5                          The applicants have filed a Motion, which has been made returnable before me today, in which they seek leave to discontinue the whole of the trade practices claim.  They also seek an order that the whole of the proceedings be transferred to the Supreme Court of the Northern Territory.  The Motion is supported by an affidavit from Mr Ulman who is the solicitor for the applicants.  After describing the nature of the case, Mr Ulman said:  

The applicants respectfully request that the proceedings be transferred to the Supreme Court of the Northern Territory for the following reasons:

(a)        The mining tenements which are the subject of the applicants’ claim are located in the Northern Territory.

(b)        Given the allegation by the respondent that the Minister of the Department of Regional Development, Primary Industry, Fisheries and Resources (Northern Territory) has not authorised mining at ML 23686 pursuant to Part 4 of Mining Management Act (NT), it is likely that the proceedings will involve:

(i)         the interpretation of Mining Management Act (NT);

(ii)        evidence from officers of the Department of Regional Development, Primary Industry, Fisheries and Resources (Northern Territory) (“the Department”); and

(iii)       production of documents by the Department;

(c)        It is likely to be more convenient for the officers of the Department if the proceedings are heard in Darwin.

(d)        Given the allegation by the respondent that the Central Land Council (“CLC”) and the Traditional Owners of the Hart Range site (“Traditional Owners”) have not approved a Mining Agreement that the respondent alleges is required, it is likely that the proceedings will involve:

(i)         evidence from members of the CLC and/or from the Traditional Owners;

and

(ii)        production of documents by the CLC and/or by the Traditional Owners.

(e)        It is likely to be more convenient for the members of the CLC and/or the Traditional Owners if the proceedings are heard in Darwin.

6                          Mr Penglis, who appears for the respondent and cross-claimant, does not consent to nor oppose the orders sought.  However, he seeks a modification of one of the orders, namely, the proposed order for costs.  He submitted that the order should provide that the costs thrown away as a consequence of the discontinuance sought by the applicants be taxed and paid forthwith. 

7                          When the matter was called on today there was no appearance either by or on behalf of Mr Lockett.  I have, however, been informed that he was served with the Cross-Claim some time ago. 

8                          It seems to me that, once the Trade Practices Act cause of action is removed from the proceedings and thus that the only federal matter raised in the proceedings is removed, there is no warrant for the proceedings to remain in this Court.  That is not to say that the convenience of witnesses is an irrelevant factor.  But this Court could easily accommodate the needs of witnesses by sitting, as necessary, in Darwin.  I am satisfied, however, that I should make the orders sought because it is in the interests of justice to do so. 

9                          For these reasons, I propose to make the orders sought by the applicants but with the modification requested by Mr Penglis. 

Associate:

Dated:         13 November 2009