FEDERAL COURT OF AUSTRALIA

Walker v Newmont Australia Ltd (No 2) [2010] FCA 414

THE COURT ORDERS THAT:

1.         By 5:00pm on 28 April 2010, the Second to Fourteenth Respondents file and serve any further submissions in relation to:

(a)        the Applicants’ proposed amended application; and

(b)        the Applicants’ misleading and deceptive conduct claim under s 1014H of the Corporations Act 2001 (Cth) and s 12DA of the Australian Securities and Investments Commission Act 2001 (Cth).

2.         By 10:00am on 29 April 2010, the Applicants file and serve any submissions in reply.

3.         The matter be listed for further hearing at 12:00 noon on 29 April 2010.

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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                          The Applicants seek leave to amend their application filed on 9 October 2009.  The amendment to the application was first foreshadowed yesterday morning.  The amendment sought to include paragraph (2)(aa) which reads:

A declaration pursuant to s 1325A of the Corporations Act [2001 (Cth) (Corporations Act)]that the Second to Fourteenth Respondents have breached s 671B of the Corporations Act.

2                          The Second to Fourteenth Respondents submit that leave should be refused because the result would be a bare declaration of criminal conduct and would be contrary to authority:  see, for example, Inglis v Moore (1979) 24 ALR 411 at 412.23-38, 421.8-421.40; Bassoak Pty Ltd v Rellgrove Pty Ltd [2006] NSWSC 252 at [13]; Heyward v Gaming Commission of Western Australia [1999] WASC 16 at [10]-[14] and [29]; Edenden v Bignell [2007] NSWSC 1122 at [25] and [45]-[48]; Australian Securities and Investments Commission v HLP Financial Planning (Aust) Pty Ltd (2007) 164 FCR 487 at [52]-[59] and RP Meagher, JD Heydon and M J Leeming, Meagher Gummow and Lehane’s Equity: Doctrines and Remedies (4^th ed, 2002) at [19-110].

3                          During the course of argument this morning, I referred to the balance of the pleading and the factual substratum which is said to support that plea.  The Second to Fourteenth Respondents submitted that the balance of the pleading did not assist the Applicants in their application for leave because the balance of the pleading, to the extent it concerns misleading and deceptive conduct, is insufficient to establish what is misleading and deceptive.

4                          The Applicants’ response is to submit that first there is utility in the bare declaration.  Four reasons or matters were proffered by them to support that submission.  The Applicants further submit that if the complaint about the bare declaration is to be dealt with now, they should have more time to address it.  In relation to the complaint about the misleading and deceptive claim, the Applicants submit that the allegation has always been included in the pleading and that the facts pleaded are sufficient to support that plea.  Finally, the Applicants submit that the point now taken by the Second to Fourteenth Respondents in relation to the misleading and deceptive claim was not pleaded.  I note, however, the complaint was included in their opening which was filed last week.

5                          In my view, the Court should address both issues promptly:  see AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at [23] (per French CJ), at [98] (per Gummow, Hayne, Crennan, Kiefel and Bell JJ) and at [137] (per Heydon J). Given the nature of both issues and the potential outcome of the applications, I consider the parties should address both matters, and should be given further opportunity to deal with both issues, now.  On the present material, they appear, at least in part, to be interrelated.

6                          I therefore direct the Second to Fourteenth Respondents to file and serve any submissions directed at both issues by 5:00 pm this afternoon, the Applicants to file and serve any further submissions by 10:00 am on 29 April 2010 and for the matter to be relisted for further hearing at 12:00 noon on 29 April 2010.

Associate:

Dated:         28 April 2010