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Mineralogy Pty Ltd v The State of Western Australia

 

[2020] QSC 344

SUPREME COURT OF QUEENSLAND

CITATION:

Mineralogy Pty Ltd & Anor v The State of Western Australia [2020] QSC 344

PARTIES:

MINERALOGY PTY LTD

ACN 010 582 680

(first applicant)

INTERNATIONAL MINERALS PTY LTD

ACN 058 341 638

(second applicant)

v

THE STATE OF WESTERN AUSTRALIA

(respondent)

FILE NO:

BS No 8766 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

25 November 2020

DELIVERED AT:

Brisbane

HEARING DATE:

11, 14 September 2020

JUDGE:

Martin J

ORDER:

  1. The order of 13 August 2020 is set aside.
  2. The Originating Application filed by Mineralogy Pty Ltd and International Minerals Pty Ltd on 12 August 2020 is adjourned to a date to be fixed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDER – AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – EX PARTE ORDERS AND JUDGMENTS – GENERAL PRINCIPLES – where the applicants applied, without notice, for an order to enforce two arbitral awards – where the application was brought ex parte – where the applicants argued that there were urgent and unprecedented circumstances which necessitated the application being brought ex parte, namely that there was legislation before the Parliament of Western Australia which, once passed, would appear to render nugatory any accrued rights held by the applicants – where the order was made – where the respondent applies to have the order set aside on the grounds that the application should not have been brought ex parte – whether the respondent should have been served, and if the respondent should have been served, whether the respondent has a right to have the order set aside

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDER – AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – EX PARTE ORDERS AND JUDGMENTS – PARTICULAR CASES – where, at the ex parte application, counsel submitted that it was the “usual manner of proceeding” for an application to enforce an arbitral award to be brought ex parte – where counsel submitted that the enforcement process under the Commercial Arbitration Act 2013 (Qld) was a “two-stage” process – where counsel placed reliance on certain paragraphs from cases – where those paragraphs did not support the proposition advanced – where the “two-stage” process is no longer the norm – whether there was a misstatement of the law by the applicants when bringing the application and whether the order should be set aside

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDER – AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – EX PARTE ORDERS AND JUDGMENTS – PARTICULAR CASES – where the respondent submits that the applicants did not, at the ex parte application, inform the court about: the extent of compliance with the 2014 Award; the nature and terms of the 2019 Award; the availability of the ex parte procedure; the breach of parliamentary privilege constituted by reference to statements made in the Parliament of Western Australia; and the declaratory nature of the awards – where the respondent submits that these were material facts that should have been fully disclosed – whether the applicants discharged their duties as an applicant to an ex parte application and whether, if the duties were not discharged, the order should be set aside

ARBITRATION – RECOGNITION AND ENFORCEMENT OF AWARDS – ENFORCING AWARDS – PARTICULAR CASES – where the applicants applied to enforce two arbitral awards under s 35 of the Commercial Arbitration Act 2013 (Qld) – where the awards consisted, with one minor exception, of declarations – whether the awards are capable of being enforced under s 35 of the Commercial Arbitration Act 2013 (Qld)

ARBITRATION – RECOGNITION AND ENFORCEMENT OF AWARDS – ENFORCING AWARDS – GROUNDS FOR OPPOSING – where the enforcement of an arbitral award may be refused if the recognition or enforcement of the award would be contrary to the public policy of the State – where the respondent argues that the enforcement of the 2014 Award would result in double recovery and that the enforcement application depended on an infringement of parliamentary privilege – whether the respondent has made out arguable grounds for refusing to enforce the awards

PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT AND GENERAL STATUTORY POWERS – OTHER CASES AND MATTERS – where the Court made an order on 13 August 2020 to enforce two arbitral awards – where the State of Western Australia enacted the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Amendment Act 2020 (WA) (“the 2020 Amendments”) – where the 2020 Amendments came into operation from the first minute of 13 August 2020 – where the applicants argue that the 2020 Amendments disable the Court from adjudicating the application brought by WA to set aside the order made on 13 August 2020 because (a) the order of the Court was “extinguished” by s 11 of the 2020 Amendments, (b) if the Court were to dismiss the application by WA, that order would be “extinguished” by the 2020 Amendments, (c) the 2020 Amendments have the effect of terminating these proceedings, or (d) the 2020 Amendments prevent the applicants from making submissions about the conduct of the respondent that is adverse to its interests and the Court is prevented from admitting evidence that might be presented in an effort to defend the respondent’s application – where the applicants have commenced proceedings in the High Court of Australia challenging the constitutional validity of the 2020 Amendments – where the applicants seek an adjournment of the application until the 2020 Amendments’ constitutional validity is determined by the High Court of Australia – whether the application should be adjourned

Acts Interpretation Act 1954 (Qld)

Commercial Arbitration Act 1985 (Qld)

Commercial Arbitration Act 2012 (WA)

Commercial Arbitration Act 2013 (Qld)

Corporations Act 2001 (Cth)

Interpretation Act 1984 (WA)

Iron Ore Processing (Mineralogy Pty Ltd) Agreement Act 2002 (WA)

Iron Ore Processing (Mineralogy Pty Ltd) Agreement Amendment Act 2020 (WA)

Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic)

Uniform Civil Procedure Rules 1999, r 27

AED Oil Ltd v Puffin FPSO Ltd (2010) 27 VR 22, cited

Aristocrat Technologies Australia Pty Ltd v Allam (2016) 327 ALR 595, cited

Attorney-General v Mayor of Liverpool (1835) 1 My & Cr 171, (1835) 40 ER 342, applied

Brink’s Mat Ltd v Elcombe [1988] 1 WLR 1350, cited

Cameron v Cole (1944) 68 CLR 571, applied

Dampskibsselskabet Norden A/S v Beach Building & Civil Group Pty Ltd (2012) 292 ALR 161, applied

Dardana Ltd v Yukos Oil Co [2002] 2 Lloyd’s Rep 326, cited

DMW v CGW (1982) 151 CLR 491, cited

D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1, cited

Eiser Infrastructure Ltd v Kingdom of Spain (2020) 142 ACSR 616, cited

Electra Air Conditioning BV v Seeley International Pty Ltd [2008] FCAFC 169, cited

Farrell v Delaney (1952) 52 St Rep NSW 236, cited

Fitz Jersey Pty Ltd v Atlas Construction Group Pty Ltd (2017) 94 NSWLR 606, cited

Garrard v Email Furniture Pty Ltd (1993) 32 NSWLR 662, applied

Greig v Stramit Corporation Pty Ltd [2004] 2 Qd R 17, applied

Hadkinson v Hadkinson [1952] P 258,cited

Heartwood Architectural Timber and Joinery Pty Ltd v Redchip Lawyers [2009] 2 Qd R 499, applied

Hillig v Darkinjung Pty Ltd [2008] NSWCA 75, cited

Hoskins v Van Den-Braak (1998) 43 NSWLR 290, applied

ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140, applied

IMC Aviation Solutions Pty Ltd v Altain Khuder LLC (2011) 38 VR 303, distinguished

Indian Farmers Fertiliser Cooperative Ltd v Gutnick (2015) 304 FLR 199, cited

International Finance Trust Company Ltd v New South Wales Crime Commission (2009) 240 CLR 319, cited

Iqnet Pty Ltd v Schleeman [2001] WASC 236, cited

Isaacs v Robertson [1985] AC 97, applied

John v Rees [1970] Ch 345, cited

National Australia Bank Ltd v Juric [2001] VSC 375, applied

Orpen v Tarantello [2009] VSC 143, cited

Papas v Grave [2013] NSWCA 308, applied

Queensland Police Credit Union Ltd v Criminal Justice Commission [2000] 1 Qd R 626, applied

Raja v Van Hoogstraten (No 9) [2009] 1 WLR 1143, cited

Re Bell Group NV (in liq) (No 2) (2017) 122 ACSR 418, cited

Sanders v Sanders (1967) 116 CLR 366, cited

Savcor Pty Ltd v Cathodic Protection International APS (2005) 12 VR 639, cited

Siporex Trade SA v Comdel Commodities Ltd [1986] 2 Lloyd’s Rep 428, cited

State of Western Australia v Mineralogy Pty Ltd [2020] WASC 58, cited

Stead v State Government Insurance Commission (1986) 161 CLR 141, cited

Taylor v Taylor (1979) 143 CLR 1, applied

Thomas A Edison Ltd v Bullock (1912) 15 CLR 679, cited

United State of America v Dunkel 927 F. 2d 955 (7th Cir 1991), cited

Tridon Australia Pty Ltd v ACD Tridon Inc [2004] NSWCA 146, considered

Walter Rau Neusser Oel und Fett v Cross Pacific Trading Ltd [2005] FCA 955, cited

Williams (as liquidator of Willahra Pty Ltd (in liq)) v Kim Management Pty Ltd [2013] 1 Qd R 387, cited

COUNSEL:

SL Doyle QC, SJ Webster and JR Green for the applicant/respondent

DB O’Sullivan QC, E Robinson and KS Byrne for the respondent/first applicant

DF Jackson QC and MA Karan for the respondent/second applicant

J Thompson SC, Solicitor-General for Western Australia and

E Negus intervening on behalf of the Attorney-General of Western Australia

SOLICITORS:

Clayton Utz for the applicant/respondent

Alexander Law for the respondent/first applicant

Jonathon Shaw for the respondent/second applicant

State Solicitor’s Office of Western Australia for the Attorney-General of Western Australia

  1. [1]
    Section 35 of the Commercial Arbitration Act 2013 (“CA Act”) empowers the court to make an order enforcing an arbitral award.
  2. [2]
    On 13 August 2020, Mineralogy Pty Ltd (“Mineralogy”) and International Minerals Pty Ltd (“IM”) applied, without notice to the State of Western Australia (“WA”), for an order enforcing arbitral awards made in May 2014 (“the 2014 Award”) and October 2019 (“the 2019 Award”). That order was made on 13 August 2020.
  3. [3]
    WA has applied to have that order set aside. Mineralogy and IM submit that the matter should be adjourned, or not otherwise dealt with, to await the determination of proceedings commenced by Mr Clive Palmer and proceedings proposed to be taken by Mineralogy and IM in the High Court of Australia.[1] In those proceedings, orders are sought invalidating the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Amendment Act 2020 (WA) (“the 2020 Amendments”).
  4. [4]
    In this application, IM adopted the submissions of Mineralogy and made some brief additional submissions. In these reasons, where I refer to Mineralogy that will include IM except where IM’s submissions are dealt with separately.

What are the issues?

  1. [5]
    A number of issues arise. They may be broadly described as follows:
    1. (a)
      The application to enforce was brought ex parte. Should it have been? Does WA have a right to have the order set aside?
    2. (b)
      Was there a lack of full disclosure of material facts or a misstatement of the law by Mineralogy when making the application? If so, should the order be set aside?
    3. (c)
      The awards consisted (with one minor exception) of declarations. Were the awards capable of being enforced under s 35 of the CA Act?
    4. (d)
      What effect, if any, do the 2020 Amendments have on these proceedings?

The history of the awards

  1. [6]
    In order to understand the arguments in this case, it is convenient to commence by briefly examining the history of the awards.
  2. [7]
    In 2002, the Parliament of Western Australia enacted the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Act 2002 (WA) (“the 2002 Act”). That Act ratified and implemented an agreement (“the State Agreement”) between WA, Mineralogy, IM and some other companies. The State Agreement concerned the mining and processing of iron ore in the Pilbara region, the transporting of that processed ore, the establishment of new port facilities, and the shipping of the processed ore through those facilities.
  3. [8]
    The State Agreement contained an arbitration clause. That clause was first engaged when a dispute arose about whether a submission made by the applicants was a “proposal submitted pursuant to Clause 6 of the State Agreement”. If it was a proposal for the purposes of the State Agreement, then clause 7 of that agreement required that the Minister deal with it.
  4. [9]
    The dispute was referred to the Honourable Michael McHugh AC for arbitration. In his award made in May 2014, he found that the submission was a proposal for the purposes of the State Agreement, that the Minister was required to deal with it under clause 7 of that agreement and that the Minister had failed to do so.
  5. [10]
    He also held that the failure of the Minister to have given a decision within the time specified in clause 7 meant that he was in breach of the State Agreement and was liable for any damages that the applicants may have suffered as a result of the breach.
  6. [11]
    The orders he made in the 2014 Award were:
  1. “1.
    Declare that the August 2012 Submission was a proposal submitted pursuant to clause 6 of the State Agreement with which the Minister was required to deal under clause 7(1) of the Agreement.
  2. 2.
    Order the State of Western Australia to pay the Arbitrator’s costs and expenses.”
  1. [12]
    Some years later, the parties fell into dispute again and Mr McHugh was retained to arbitrate on these new disagreements. They mostly concerned the effect of the 2014 Award and whether damages could be assessed after taking into account, among other things, the delay which had occurred in taking further action. In October 2019, Mr McHugh delivered his 2019 Award and made the following declarations:
  1. “1.
    DECLARE the Applicants’ right to recover damages was not heard and determined in the Award of 20 May 2014.
  2. 2.
    DECLARE that the Applicants are not foreclosed from further pursuing claims for damages arising from any breach or breaches of the State Agreement.
  3. 3.
    DECLARE that the Award of 20 May 2014 was a final award which terminated the First Arbitration and that the Arbitrator has no jurisdiction to adjourn the proceedings to allow time for the Respondent to apply to the Supreme Court under section 46 of the Commercial Arbitration Act 1985 (WA) to terminate the first arbitration.
  4. 4.
    DECLARE that there has not been an inordinate and inexcusable delay on the part of the Applicants in progressing the Second Damages Claim or the Clause 7 of the State Agreement claim.”
  1. [13]
    WA challenged the 2019 Award in the Supreme Court of Western Australia. Kenneth Martin J held that, because the Commercial Arbitration Act 2012 (WA) applied, the State could not appeal.[2] The hearing of the assessment of damages by Mr McHugh was to commence late this year.

The application to enforce the awards

  1. [14]
    On 12 August 2020, the applicants filed an originating application seeking an order that the 2014 Award and the 2019 Award be enforced. That order was sought under s 35 of the CA Act. The matter came on for hearing at 12.50pm on 13 August 2020.
  2. [15]
    Section 1(2) of the CA Act provides:

“The provisions of this Act, except sections 8, 9, 17H, 17I, 17J, 35 and 36, apply only if the place of arbitration is in Queensland.”

  1. [16]
    The place of arbitration for the 2014 and 2019 Awards was not in Queensland. Notwithstanding the restriction apparently imposed by s 1(2), it would be illogical to exclude the definitions section from application or, for that matter, the objects sections. Section 1AC provides for the paramount object of the CA Act:

1AC Paramount object of Act

  1. (1)
    The paramount object of this Act is to facilitate the fair and final resolution of commercial disputes by impartial arbitral tribunals without unnecessary delay or expense.
  1. (2)
    This Act aims to achieve its paramount object by—
  1. (a)
    enabling parties to agree about how their commercial disputes are to be resolved (subject to subsection (3) and such safeguards as are necessary in the public interest); and
  1. (b)
    providing arbitration procedures that enable commercial disputes to be resolved in a cost-effective manner, informally and quickly.
  1. (3)
    This Act must be interpreted, and the functions of an arbitral tribunal must be exercised, so that (as far as practicable) the paramount object of this Act is achieved.
  1. (4)
    Subsection (3) does not affect the application of the Acts Interpretation Act 1954, section 14A for the purposes of interpreting this Act.”
  1. [17]
    The provisions which are relevant to these proceedings are s 35 and s 36. Those sections provide:

35 Recognition and enforcement (cf Model Law Art 35)

  1. (1)
    An arbitral award, irrespective of the State or Territory in which it was made, is to be recognised in this State as binding and, on application in writing to the Court, is to be enforced subject to the provisions of this section and section 36.
  1. (2)
    The party relying on an award or applying for its enforcement must supply the original award or a copy of the original award.
  1. (3)
    If the award is not made in English, the Court may request the party to supply a translation of it into English.

Note

So much of Art 35(2) of the Model Law as provides for the translation of an award that is not in the official language of the enforcing State has been modified.

36 Grounds for refusing recognition or enforcement (cf Model Law Art 36)

  1. (1)
    Recognition or enforcement of an arbitral award, irrespective of the State or Territory in which it was made, may be refused only—
  1. (a)
    at the request of the party against whom it is invoked, if that party furnishes to the Court proof that—
  1. (i)
    a party to the arbitration agreement was under some incapacity, or the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication in it, under the law of the State or Territory where the award was made; or
  1. (ii)
    the party against whom the award is invoked was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present the party’s case; or
  1. (iii)
    the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognised and enforced; or
  1. (iv)
    the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the law of the State or Territory where the arbitration took place; or
  1. (v)
    the award has not yet become binding on the parties or has been set aside or suspended by a court of the State or Territory in which, or under the law of which, that award was made; or
  1. (b)
    if the Court finds that—
  1. (i)
    the subject-matter of the dispute is not capable of settlement by arbitration under the law of this State; or
  1. (ii)
    the recognition or enforcement of the award would be contrary to the public policy of this State.
  1. (2)
    If an application for setting aside or suspension of an award has been made to a court referred to in subsection (1)(a)(v), the Court may, if it considers it proper, adjourn its decision and may also, on the application of the party claiming recognition or enforcement of the award, order the party to provide appropriate security.”

The application to set aside the order

  1. [18]
    WA has filed and served two distinct applications. These reasons concern only the first application. In it, WA seeks orders:
    1. (a)
      that the order of 13 August 2020 be set aside,
    2. (b)
      alternatively, that the operation of the order of 13 August 2020 be stayed pending the determination of the second application.
  2. [19]
    The second application seeks orders refusing to enforce either award and dismissing the applicants’ application to enforce them. WA did not seek to proceed on the second application.
  3. [20]
    WA bases its application to set aside the order on three grounds:
    1. (a)
      WA should have been served – the application should not have been made on an ex parte basis,
    2. (b)
      there was not a full disclosure of material facts and, in seeking ex parte relief, material misstatements of the law were made, and
    3. (c)
      there was no, and there remains no, proper occasion to enforce either of the awards because:
      1. the awards, apart from one matter concerning costs, were for declaratory relief and had either been complied with or were incapable of being “enforced”, and
      2. the 2019 Award was not an “award” within the meaning of s 35 of the CA Act.

Should the application have been made on notice?

  1. [21]
    The circumstances in which an application may be heard ex parte are set out in r 27 of the Uniform Civil Procedure Rules 1999 (“UCPR”):

27 Service of application

  1. (1)
    An application must be filed and then served on each respondent at least 3 business days before the day set for hearing the application.

Note—

Under the Acts Interpretation Act 1954, section 38(1)(a), the service day and the hearing day are excluded in the reckoning of time.

  1. (2)
    However, the time limit in subrule (1) does not apply if—
  1. (a)
    these rules, an Act or another law permit the application to be heard and decided without being served; or
  1. (b)
    the applicant proposes in the application that it be decided without a hearing; or
  1. (c)
    another time is provided for under these rules or an Act.
  1. (3)
    If an application is not served as required by subrule (1), the court must not hear and decide the application unless the court considers it just to hear and decide the application on the day set for hearing and 1 of the following applies—
  1. (a)
    the court is satisfied delay caused by giving notice of the application would cause irreparable or serious mischief to the applicant or another person;
  1. (b)
    the court is satisfied the respondents to the application will suffer no significant prejudice if it hears and decides the application on the day set for hearing;
  1. (c)
    the respondents to the application consent to the court hearing and deciding the application on the day set for hearing.

Example of subrule (3)—

The court may decide subrule (3) has been satisfied if the application is a cross application by a respondent to another application and it is convenient for the applications to be heard together.

  1. (4)
    For an application not served as required by subrule (1)—
  1. (a)
    the court may make an order on an undertaking given by the applicant and acceptable to the court; and
  1. (b)
    a person affected by the order may apply to the court for it to be set aside.”
  1. [22]
    Chapter 9A of the UCPR contains rules which apply specifically to commercial arbitration. Part 3 of that chapter deals with domestic commercial arbitration. Rule 365U provides:

365U Application to enforce award

  1. (1)
    An application under the Commercial Arbitration Act 2013, section 35 to enforce an award must be in the approved form.
  1. (2)
    The application must be accompanied by—
  1. (a)
    the documents mentioned in the Commercial Arbitration Act 2013, section 35; and
  1. (b)
    an affidavit stating—
  1. (i)
    the extent to which the award has not been complied with, at the date the application is made; and
  1. (ii)
    the usual or last known place of business or residence of the person against whom it is sought to enforce the award or, if the person is a company, the last known registered office of the company.”
  1. [23]
    The approved form is Form 137Y. It is in the form of a template which is designed for use in variety of circumstances. The relevant parts of the form are set out below:

“To the respondents:   TAKE NOTICE that the applicant [name of applicant], being a party to an arbitration agreement, applies for an order under section 35 of the Commercial Arbitration Act 2013 to enforce an award and for the other relief set out in this application.

ORDERS SOUGHT

The applicant seeks—

  1. an order under section 35 of the Commercial Arbitration Act 2013 that the following award [specify] be enforced;
  1. [State briefly but specifically any other orders sought].

HEARING

This application will be heard by the Court at place

on: date of hearing at 10 am or as the case may be

Filed in the place Registry on (date)

Registrar: (registrar to sign and seal)

If you wish to oppose this application or to argue that any different order should be made, you must appear before the Court in person or by your lawyer and you shall be heard.  If you do not appear at the hearing the orders sought may be made without further notice to you.  In addition you may before the day for hearing file a Notice of Address for Service in this Registry.  The Notice should be in Form 8 to the Uniform Civil Procedure Rules.   You must serve a copy of it at the applicant’s address for service shown in this application as soon as possible. 

ACCOMPANYING DOCUMENTS

This application is accompanied by an affidavit—

  1. exhibiting the documents referred to in section 35 of the Commercial Arbitration Act 2013; and
  1. stating—
  1. (a)
    the extent to which the award has not been complied with at the date the application is made; and
  1. (b)
    the usual or last-known place of residence or business of the person against whom it is sought to enforce the award or, if the person is a company, the last-known registered office of the company.

If you intend on the hearing to rely on any affidavits they must be filed and served at the applicant’s address for service prior to the hearing date.

PARTICULARS OF THE APPLICANT:

SERVICE ON THE RESPONDENT

[Select one of these three options and delete the others]

*It is intended to serve this application on the respondent/*all respondents.

*It is intended to serve this application on the following respondents:

[insert name of each respondent on whom application is to be served].

*It is not intended to serve this application on *the respondent/*any respondent.”

  1. [24]
    Shane Bosma, a lawyer engaged as “in-house counsel for each of” the applicants, has affirmed two affidavits in this matter. The first was filed on 12 August 2020 (“the first Bosma affidavit”) and was used to support the s 35 application. The second was filed by leave on 14 September 2020 (“the second Bosma affidavit”) and dealt with the instructions he had given to Alexander Law (the solicitors then acting for both respondents) and Mr K Byrne of Counsel.
  2. [25]
    In the second Bosma affidavit he deposes to having “28 years’ experience in the conduct of commercial dispute resolution with significant experience in commercial arbitration”. He goes on to say:

[9] At about 8.00 am AEST on Wednesday 12 August 2020 I accessed online and read each of:

  1. (a)
    sections 35 and 36 of the Commercial Arbitration Act 2013 (Qld); and
  1. (b)
    rule 365U of the Uniform Civil Procedure Rules 1999 (Qld); and
  1. (c)
    form 137Y originating application to enforce award (Commercial Arbitration Act) (version 1 approved on 5 February 2019) (the approved form).

[10] When I read the approved form, I noticed that one of the options in the section headed ‘Service on the Respondent’ provided that ‘It is not intended to serve this application on *the respondent/*any respondent’.

[11] Shortly after reading the documents set out in paragraph 9, I instructed Alexander Law and briefed Mr Kris Byrne of Counsel:

  1. (a)
    to make an urgent application to the Supreme Court of Queensland for an order enforcing each of the 2014 Award and the 2019 Award pursuant to section 35 of the Commercial Arbitration Act 2013 (Qld) in accordance with rule 365U of the Uniform Civil Procedure Rules 1999 (Qld); and
  1. (b)
    to bring such application on the basis that it was not intended to serve the application on the Respondent.”
  1. [26]
    He does not, it might be noted, say that he instructed solicitors and counsel to bring the application on an ex parte basis because that was the “usual manner of proceeding” or that it was “common for applications for orders recognising and enforcing awards to be made ex parte”. If that were the case, then one might be forgiven for thinking that a solicitor of Mr Bosma’s experience would have made that plain in his affidavit (and in his instructions) rather than relying upon an alternative set out at the foot of a form.
  2. [27]
    At the hearing on 13 August, Mineralogy argued that it was appropriate to proceed on an ex parte basis. The reasons advanced were:
    1. (a)
      it was the usual manner of proceeding,
    2. (b)
      it was common for applications for orders recognising and enforcing awards to be made ex parte,
    3. (c)
      this approach had been accepted in Australia,
    4. (d)
      there was no basis to proceed on an inter partes hearing,
    5. (e)
      there were urgent, unprecedented circumstances justifying proceeding on an ex parte basis, and
    6. (f)
      the orthodox approach was to proceed in two stages with the first being ex parte.
  3. [28]
    The applicants relied on two authorities to support the contentions that they made in favour of proceeding ex parte: IMC Aviation Solutions Pty Ltd v Altain Khuder LLC[3] and Dampskibsselskabet Norden A/S v Beach Building & Civil Group Pty Ltd.[4]
  4. [29]
    The first question that should have been considered at the hearing (but was not) was: which part of r 27 allows for this application to be brought without notice?
  5. [30]
    Rule 27(2) permits an applicant not to serve a respondent in three circumstances. The only one which is relevant to this application is r 27(2)(a):

“… the time limit in subrule (1) does not apply if –

  1. (a)
    these rules, an Act or another law permit the application to be heard and decided without being served;”
  1. [31]
    Mr Bosma appears to have relied upon the existence of the third “option” in Form 137Y of not serving the respondent under the heading “Service on the Respondent”. But, it cannot be relied upon as a ground for proceeding in the respondent’s absence. While the forms are a part of the UCPR, the section of Form 137Y being considered does not impose on an applicant a requirement to serve or relieve an applicant of such a requirement. It only requires an applicant to give an indication of its intention.
  2. [32]
    Is there an Act[5] upon which the applicants can rely? The only Act relied upon was the CA Act. I will deal with that later in these reasons.
  3. [33]
    Is there “another law” upon which the applicants can rely? A “law” includes a law of the Commonwealth, another State or Territory.[6] None was relied upon.
  4. [34]
    The court must not hear an application which has not been served unless it considers it just to do so and one of the exceptions in r 27(3) applies. The relevant rules that permit an ex parte hearing are in r 27(3)(a) and (b). The applicants appear to rely on r 27(3)(a) in their submission that there were urgent, unprecedented circumstances justifying proceeding on an ex parte basis. I will deal with that later in these reasons.
  5. [35]
    I turn now to consider whether the CA Act allows for the application to be brought without notice.
  6. [36]
    Section 35 of the CA Act provides that an arbitral award is “to be recognised in this State as binding”. It also allows for an award to be enforced upon an application made in writing. That recognition occurs without an application is supported by s 35(2) which only refers to a “party … applying for its enforcement”. Recognition appears to be presumed.
  7. [37]
    An award which is recognised under s 35 may be enforced subject to the provisions of both s 35 and s 36. Section 36 provides that enforcement “may be refused” on a number of identified grounds. They will be dealt with later. For the moment I will concentrate on the words “may be refused”.
  8. [38]
    Section 36 does not speak of the “recognition or enforcement of an arbitral award” being set aside or, in some way, annulled. Its language is that of refusal and refusal which can occur only in very limited circumstances. The grounds provided in s 36(1)(a) may only be advanced “at the request of the party against whom it is invoked” when that party “furnishes to the Court proof that” one of the matters in s 36(1)(a) is established. The refusal anticipated in s 36 is of the “application in writing to the Court” referred to in s 35(1).
  9. [39]
    These two sections, when read together, do not envisage a two-step process in which an order is made “enforcing” the award and then, at the request of the party against whom it is invoked, the application (which has already been granted) being refused. The process envisaged by s 35 and s 36 is for the application to enforce, together with any grounds advanced under s 36, to be heard at the same time. That requires that the party against whom “enforcement … is invoked” be served with the application so that it can take whatever action is available to it.
  10. [40]
    In any event, the relevant test for not applying the time limit of service at least three days before the hearing is set out in r 27(2)(a). It requires that the rules, the Act (in this case the CA Act) or another law “permit the application to be heard and decided …”. Neither s 35 nor s 36 permit that to occur.
  11. [41]
    The provisions of r 27 which do allow for an ex parte application were not engaged. The application proceeded, though, on the basis of inaccurate and misleading submissions as to the “usual” approach.

Usual, common, orthodox?

  1. [42]
    I turn now to the submission made by Mineralogy at the original hearing that this method of proceeding was usual or common or orthodox. That is not a ground available under r 27(2) for not serving a respondent. It was argued that the circumstances were such that the requirements of 27(3) were satisfied.
  2. [43]
    At the initial hearing it was submitted in writing that the application could be dealt with on an ex parte basis because:
    1. (a)
      it was the “usual manner of proceeding”,
    2. (b)
      “it is … common for applications for orders recognising and enforcing awards to be made ex parte”,
    3. (c)
      this was the approach which had “been accepted in Australia”,
    4. (d)
      “there is no need to proceed on an inter partes hearing”, and
    5. (e)
      there were “urgent, unprecedented circumstances” which justified proceeding ex parte.
  3. [44]
    In the oral submissions, it was said that the “orthodox” approach was to proceed in two stages with the first hearing being ex parte.
  4. [45]
    In the current application, Mineralogy accepts that submissions to the effect that it was “common” for applications for orders to be made ex parte or that the “orthodox approach is for there to be a two-stage approach” were not accurate.
  5. [46]
    It was accepted by Mineralogy that these submissions were inaccurate because, among other things, it was not the practice of the Federal Court of Australia to make ex parte enforcement orders and this court was not told that. While it may have been the practice in some jurisdictions to proceed ex parte it was not the common practice.
  6. [47]
    No effort was made to demonstrate that either r 27(3)(a) or (b) applied. Nor was any finding made to that effect. The decision to proceed was made upon the submission that a two stage hearing was the orthodox process. The decision of the Victorian Court of Appeal in IMC Aviation Solutions Pty Ltd v Altain Khuder LLC (“IMC Aviation”)[7] was called in aid of that submission. In particular, I was referred to paragraph [132] of the reasons of  Hansen JA and Kyrou AJA where their Honours said:

[132] Fifthly, the Act does not set out the procedures to be followed by this court in relation to applications for enforcement of foreign arbitral awards. Those procedures are set out in O 9 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (‘Rules’) and Practice Note No 2 of 2010, ‘Arbitration Business’ (‘practice note’). The Rules and the practice note provide for a two-stage process. Stage one usually involves the making of an ex parte application for leave to enforce the award. If leave is granted, an order is made which gives effect to the award as a judgment of this court and stays the enforcement of the award for the purpose of giving the award debtor an opportunity to apply to the court to set aside the order. Stage two occurs only if an application is made to set aside the order. If such an application is made, stage two involves an inter partes hearing of the application. The two-stage model has been adopted in other Convention countries.”

  1. [48]
    In argument it was conceded that the Victorian Rules and Practice Note had no equivalent in this jurisdiction. But it was advanced as a relevant consideration on the basis of the last sentence – “The two-stage model has been adopted in other Convention countries” – and the submission by counsel that:

“… the issue is one of harmonisation, your Honour. That because there is model legislation, what applies in one jurisdiction ought to apply in the other. And if your Honour goes down to paragraph 135 [of IMC Aviation]. … And finally, if your Honour goes to paragraph 141 … the first sentence, regarding the enforcement clause function.”

  1. [49]
    The decision of Foster J in Dampskibsselskabet Norden A/S v Beach Building & Civil Group Pty Ltd[8] was also cited as authority for the proposition that a two stage process had been accepted in Australia. Specific reference was made to paragraphs [78] and [86] as supporting that submission. On examination, neither of those paragraphs provide that support. In paragraph [78], Foster J synthesises what was said by Mance LJ in Dardana Ltd v Yukos Oil Co[9] where his Honour had dealt with the issue of the evidentiary value of an authenticated award and arbitration agreement within the process set out in the relevant United Kingdom legislation.
  2. [50]
    Similarly, in paragraph [86], Foster J sets out what was said in IMC Aviation at paragraphs [134]-[135] of that decision but that was for the purpose of considering the level of proof required of an award creditor to engage a particular part of the relevant legislation.
  3. [51]
    What was not put forward in the submissions and which should have been (consistently with the duty of an applicant on an ex parte application)  was this observation of Foster J:[10]

[90] I pause to note that it is not the practice of this court to make an enforcement order under s 8 of the Act on the return date of the originating application ex parte. It is the usual practice of this court in such matters to require an inter partes hearing. The enforcement hearing would only proceed ex parte if the award debtor failed to appear at that hearing. In point of principle, however, that difference in practice does not affect the question presently under discussion.” (emphasis added)

  1. [52]
    The contention that, because there is model legislation, what applies in one jurisdiction ought to apply in the other was misconceived. Harmonisation of model legislation is desirable but, unless there is specific legislation to that effect, it does not apply to procedural matters.
  2. [53]
    Section 2A(3) of the CA Act provides that, in the interpretation of the Act, regard may be had to documents relating to the Model Law of the United Nations Commission on International Trade Law.[11] In an explanatory note by UNCITRAL on the Model Law, reference is made to the procedural conditions of recognition and enforcement. Paragraph [49] provides:

“The Model Law does not lay down procedural details of recognition and enforcement since there is no practical need for unifying them, and since they form an intrinsic part of the national procedural law and practice. The Model Law merely sets certain conditions for obtaining enforcement: application in writing, accompanied by the award and the arbitration agreement (article 35(2)).”[12]

  1. [54]
    Similar statements have appeared in later versions of that explanatory note.
  2. [55]
    The cases referred to by Mineralogy concerned the harmonisation of substantive law rather than the procedural rules of particular jurisdictions. In an annexure to those written submissions an attempt is made to demonstrate that a number of jurisdictions have adopted a two-step enforcement procedure. So much may be accepted, just as it may be accepted that there are a number of jurisdictions which have not adopted that procedure.
  3. [56]
    The decision upon which considerable weight was placed during the hearing, IMC Aviation, was based upon the rules and Practice Note which then applied. Since that decision was given, the relevant rules have been amended[13] and a revised Practice Note has issued[14] with the result that a two-step procedure is no longer the norm. The relevant rules in Victoria are now similar to those in Queensland and they were at the time of the original hearing. That was not made known at the hearing of 13 August.

Urgent, unprecedented circumstances?

  1. [57]
    It was also argued that there were “urgent, unprecedented circumstances” which justified proceeding ex parte. There was a superficial attractiveness to that proposition in the circumstances in which it was advanced. The evidence was that it was very likely that legislation would soon be passed by the WA Parliament which, on its face, would render nugatory any accrued rights held by Mineralogy.
  2. [58]
    On closer examination of the material and the circumstances of its creation, there was nothing to support the argument that WA need not be served. There was nothing to suggest that there would have been any delay in the hearing had WA been served. The records of this court show that the file in this matter was created at 1.05 pm on 12 August 2020. Thus, the originating application was filed no later than 1.05 pm on 12 August 2020. The major supporting affidavit was affirmed on 12 August 2020. The written submissions were dated 12 August 2020. There was no impediment to serving WA and seeking to have the matter heard on either that day or the next.
  3. [59]
    This was not a case in which a bulldozer was rumbling, its blade raised, ready to destroy some structure. There was no evidence to support a contention that irreparable or serious mischief would have been caused had WA been served. The circumstances were such that, had WA been served, there would have been an order abridging the time for service so that the matter could have been heard.
  4. [60]
    The conduct of Mineralogy elsewhere also tells against their argument. On the same day that it filed these proceedings – 12 August 2020 – it filed an application for identical relief in the Supreme Court of New South Wales. That application was listed for hearing on 28 August 2020 and the application was served on WA at about 3pm (WA time) on 12 August 2020.
  5. [61]
    It was an important part of the case for Mineralogy that ex parte proceedings were usual or common or orthodox. There was substantial authority to the contrary which should have been exposed. The submission on this point was material to the decision to proceed to determine the application in the absence of WA.

No significant prejudice?

  1. [62]
    Mineralogy submits that r 27(3)(b) assists it because the court would have been satisfied that WA would suffer “no significant prejudice” if that issue had been raised on 13 August. It was contended that no significant prejudice will be occasioned to a respondent to an enforcement order sought under r 365U if the respondent is permitted to come back before the court to establish one of the grounds enumerated in s 36 as they provide the only basis upon which enforcement may be refused. It is argued that that was the course adopted by the court on 13 August.
  2. [63]
    In giving the brief reasons in favour of the application I said: “I am satisfied that section 36 of the Act may be used if it is available to the respondent to take such steps as it might be advised.” That was said soon after I referred to the decision in IMC Aviation and was based upon the submissions made with respect to it. Those submissions were material to the decision and they were wrong.
  3. [64]
    Prejudice to WA arises by exposing it, among other things, to the possibility of double recovery. The order for the payment of costs had been satisfied. There was nothing to be enforced, yet the order made it give the appearance, at least, that WA was still subject to an order that it pay the costs of the first arbitration.
  4. [65]
    The enforcement order was also prejudicial to the extent that it allowed an inference to be drawn that the Minister had, some six years after the award was made, still not complied with clause 7(1) of the Agreement.

Can WA have the order set aside as of right?

  1. [66]
    WA contends that, as it was not given notice of the application, it is entitled as of right to have the order set aside. It relies upon a number of statements of high principle and, in particular, on what Rich J said in Cameron v Cole:[15]

“It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case. If this principle be not observed, the person affected is entitled, ex debito justitiae, to have any determination which affects him set aside; and a court which finds that it has been led to purport to determine a matter in which there has been a failure to observe the principle has inherent jurisdiction to set its determination aside…. In such a case there has been no valid trial at all. The setting aside of the invalid determination lays the ghost of the simulacrum of a trial, and leaves the field open for a real trial.”[16] (citations omitted, emphasis added)

  1. [67]
    In Hoskins v Van Den-Braak,[17] Mason P (with whom Priestley and Beazley JJA agreed) said that where a person was not served with the claim upon which a judgment was based then the proceedings and the judgment are nullities and the person is entitled ex debito justitiae to have the judgment set aside.[18] Statements to similar effect can be found in decisions of the Queensland Court of Appeal in Queensland Police Credit Union Ltd v Criminal Justice Commission[19] and Greig v Stramit Corporation Pty Ltd.[20]
  2. [68]
    Mineralogy contends that this principle has no application where the hearing is of a kind that may properly proceed ex parte.  That is, the principle is engaged only where there has been a denial of natural justice.
  3. [69]
    The argument for Mineralogy is based entirely on the assumption that this was a case in which the two stage process contended for meant that WA would have had the opportunity to appear before the court at a later time and attempt to persuade the court to change the order which had already been made. As I have said above, the proper construction of the relevant sections means that this was a case in which notice of the hearing of the application should have been given.
  4. [70]
    The consequences of failing to serve in a situation such as this were considered in Queensland Police Credit Union Ltd v Criminal Justice Commission[21] where McPherson JA (with whom Pincus JA and Derrington J agreed) said:

“Once it is shown that there is a right to procedural fairness in the form of an opportunity of being heard in a proceeding, a person aggrieved is ordinarily entitled to relief against adverse consequences of being denied that right without having to establish in detail how the opportunity would have been made use of. The position may, in some instances, be different where it is shown that the opportunity, even if granted, would in fact or law have been of no avail. In practice, however, cases of that kind are, for the reasons referred to by Megarry J. in John v. Rees [1970] Ch. 345, 402, necessarily rare.”[22] (emphasis added)

  1. [71]
    Mineralogy sought to distinguish the case on the basis that it involved consideration of particular sections of the Corporations Act 2001 and the situation where a liquidator could not identify the creditors who should have been served. While a different set of circumstances was being considered, in Greig v Stramit Corporation Pty Ltd, each member of the Court of Appeal referred to, and applied, the general principle to be found in Cameron v Cole.
  2. [72]
    Williams JA put it this way:

[40]  … Authorities such as Cameron v. Cole and Craig v. Kanssen, referred to above, establish that failure to provide an opportunity to be heard gives the party denied that right an entitlement, ex debito justitiae, to have the order made set aside.”[23]

  1. [73]
    To similar effect, Jerrard JA said:

[109] … The denial of Stramit’s fundamental right to a reasonable opportunity to be heard on the liquidators’ application was what entitled it to an order ex debito justitiae from another judge of this court, granting Stramit relief against that denial of natural justice.”[24] (citations omitted)

  1. [74]
    Finally, Fryberg J said:

[135] The principle embodied in the expression audi alteram partem has been part of the common law at least since the 16th century. In Cameron v. Cole Rich J. expressed it in English: ‘a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case’. It has been traced to Seneca’s Medea. In Brown v. DML Resources Pty Ltd (No. 2) Austin J. said:

‘The importance of the audi alteram partem rule of natural justice, especially in curial proceedings, can hardly be overstated. In Cameron v Cole Rich J described it as a ‘fundamental principle’, and in Commissioner of Police v Tanos, Dixon CJ and Webb J referred to it as a ‘deep-rooted principle of the law’.’

I respectfully agree. The principle does not apply to every decision by every public authority in every circumstance; but ‘its application to proceedings in the established courts is a matter of course.’

[136] What is the consequence if an order is made in breach of the principle? If the judicial body in question is a superior court, the breach does not make the order a nullity. It does however entitle the party denied natural justice to have the order set aside. That party is so entitled ex debito justitiae, that is, as of right, not as a matter of discretion or subject to terms. Like most other rights, that right may be waived, and it would not be enforced if to do so would constitute an abuse of process of court.”[25] (citations omitted, emphasis added)

  1. [75]
    Mineralogy also argued that there was nothing which WA could have legitimately put before the Court at the hearing on 13 August which would have altered the outcome of the application. On the authorities set out above, that is not a consideration which would deny WA an order setting aside the earlier order. If there is a discretion to be exercised, then I am satisfied that WA could have presented arguments about the extent to which the 2014 Award had been satisfied and whether the 2019 Award should have been enforced given the nature of the declarations made. I do not have to decide whether those arguments would have been successful.
  2. [76]
    Mineralogy and IM were not entitled to bring their application without notice to WA. WA is entitled on that basis alone to have the order made on 13 August set aside. Should I be wrong in that conclusion I will consider the issue relating to the extent and nature of the disclosure made by Mineralogy and IM at the hearing.

Judges, pigs and truffles – the duties of an advocate on an ex parte application

  1. [77]
    An advocate who appears on an ex parte application is required to discharge well-known and onerous duties. Applications deliberately made in the absence of an opponent are usually heard in the Applications List of this Court. Judges sitting in Applications rely heavily on those who appear before them to accurately and expeditiously lay out the case for consideration. Judges hearing those matters will, if it is feasible, deliver an ex tempore judgement. In doing so, a judge does not have the time to carefully examine and reflect upon each document which is read by the applicant or each authority which is relied upon for the submissions made. The judge will rely on the advocates to direct attention to the relevant facts, issues and statements of law in the material. In particular, where an application deals with an area of the law or legislation which is not commonly encountered in the Applications List then an advocate must be careful to provide a complete picture of the relevant legal background.
  2. [78]
    To paraphrase what was said by Posner J in United State of America v Dunkel,[26] judges are not pigs, hunting for truffles in the documents. In this case, the supporting affidavit and exhibits exceeded 250 pages. The two authorities relied upon comprised 347 and 149 paragraphs respectively. No judge sitting in Applications has the time to closely examine documents of that length in order to determine whether they support, in all necessary respects, an applicant’s case.
  3. [79]
    The extent and nature of the obligations which lie upon an applicant seeking ex parte relief were considered in International Finance Trust Company Ltd v New South Wales Crime Commission.[27] In that case, Hayne, Crennan and Kiefel JJ said that the source of the obligation lay in the very nature of the adversarial system administered in Australian courts, coupled with the emphasis given to the desirability of finality in litigation. Their Honours said:

“Unless a party moving a court to make orders in the absence of parties having an interest to oppose them making is obliged to make proper disclosure of all relevant materials, hearings will be needlessly multiplied and prolonged. Courts should not be asked to make orders in the absence of opposing interests on material that is or should be known to be deficient.”[28]

  1. [80]
    In that decision, their Honours referred to what was said by Isaacs J in Thomas A Edison Ltd v Bullock[29] where, having referred to an earlier English decision, his Honour went on to say:

“… it is the duty of a party asking for an injunction ex parte to bring under the notice of the Court all facts material to the determination of his right to that injunction, and it is no excuse for him to say that he was not aware of the importance. Uberrima fides is required, and the party inducing the Court to act in the absence of the other party, fails in his obligation unless he supplies the place of the absent party to the extent of bringing forward all of the material facts which that party would presumably have brought forward in his defence to that application. Unless that is done, the implied condition upon which the Court acts informing its judgment is unfulfilled and the order so obtained must almost invariably fall.”[30] (emphasis added)

  1. [81]
    The requirement of uberrima fides – utmost good faith – enunciated in Thomas A Edison Ltd v Bullock was described in these terms in Walter Rau Neusser Oel und Fett v Cross Pacific Trading Ltd[31] where Allsop J said:

[38] In an ex parte hearing, it is the obligation of the party seeking orders, through its representatives, to take the place of the absent party to the extent of bringing forward all the material facts which that party would have brought forward in defence of the application … That does not mean stating matters obliquely, including documents in voluminous exhibits, and merely not mis-stating the position. It means squarely putting the other side’s case, if there is one, by coherently expressing the known facts in a way such that the Court can understand, in the urgent context in which the application is brought forward, what might be said against the making of the orders. It is not for the Court to search out, organise and bring together what can be said on the respondents’ behalf. That is the responsibility of the applicant, through its representatives.” (citation omitted, emphasis added)

  1. [82]
    In other decisions[32] reliance was placed upon the list of the more specific principles provided in Brink’s Mat Ltd v Elcombe.[33] Another useful exposition of the principles can be found in the decision of Bingham J (as he then was) in Siporex Trade SA v Comdel Commodities Ltd.[34] Those cases, and other authorities,[35] support the following as a summary of the obligations upon an applicant in an ex parte application:
    1. (a)
      An applicant must make a full and fair disclosure of all the material facts.
    2. (b)
      The material facts are those which the judge needs to know in dealing with the application. (Materiality is determined by the court, not the applicant or its legal advisors.)
    3. (c)
      The applicant must make proper enquiries about the facts before making the application. The duty extends to any additional facts the applicant would have known if it had made such enquiries.
    4. (d)
      How far an applicant must go in making these enquiries will depend upon all the circumstances of the case. This will include the probable effect of the order on the defendant and the degree of urgency.
    5. (e)
      The applicant must identify the crucial points for and against the application and not rely on general statements and the mere exhibiting of numerous documents.
    6. (f)
      The applicant must identify any likely defences – factual or legal – and make the judge aware of them.
    7. (g)
      The applicant must inform the court of the legal authorities that bear one way or the other upon the matters under debate. That duty applies irrespective of whether or not the particular authority assists the party who is aware of it.
  2. [83]
    Mineralogy relied upon some observations made in Papas v Grave[36] where Emmett JA said:

[78] The extent of disclosure that is required in making an ex parte application must depend to some extent on the circumstances in which the application has been made. Where an urgent application is made to prevent imminent conduct, the opportunity for close examination of the relevant legal principles may be limited. While the urgency would not excuse a failure to disclose material facts and circumstances, it may well be a justification for no more than a very limited statement of the legal principles upon which the application is based.”

  1. [84]
    There can be no quarrel with that statement of principle, but the complaint in this case is not that there was a limited statement of the legal principles upon which the application was based. The complaint is that the statement of legal principles was wrong.
  2. [85]
    I should note at this point that it was not suggested, in any way, that counsel who appeared at the initial hearing had deliberately attempted to mislead the court. I accept, without qualification, that any errors were inadvertent. In any event, as Baston JA said in Papas v Grave:

[10] If a fact known to the party, or a relevant principle of law, was not put before the court when it should have been, the reason why that occurred will usually not be relevant. As explained by Gleeson CJ in Nudd v The Queen [2006] HCA 9; 80 ALJR 614 at [8], in relation to a criminal appeal:

‘It is natural for a person aggrieved by the outcome of a criminal trial to seek to assign blame, but where a miscarriage of justice is said to arise from a failure of process, it is the process itself that is judged, not the individual performance of the participants in the process. If a trial judge fails to instruct a jury on an essential point of law, the explanation might be that the judge was inexperienced, or ill, or absent-minded, or temporarily distracted by other concerns. That would be irrelevant. It is the acts and omissions of the judge that matter; not personal failings or problems that might account for those acts or omissions. Similarly, where the conduct of counsel, as a participant in the trial process, is said to give rise to, or to be involved in, a miscarriage of justice, ordinarily it was what was done or omitted that is of significance, rather than why that occurred.’” (emphasis added)

The consequences of a failure to fulfil the duty to disclose – the order is discharged

  1. [86]
    A court will be astute to deprive an applicant of any advantage it may have obtained by proceeding ex parte without disclosing all material facts to the court. The duty to disclose must be complied with “on pain of a penalty that the order will be set aside.”[37]
  2. [87]
    In Garrard v Email Furniture Pty Ltd (“Garrard”),[38] Mahoney AP expressed the consequences of a failure to comply with the duty in this way:

“It is, in my opinion, important that the extent of the duty (“a most serious responsibility”) imposed upon a person applying to a court ex parte be not qualified and that failure to observe that duty be properly sanctioned. … The court should set aside an order or certificate obtained in breach of the rule and should do so with costs. If the party be entitled to the relief following full disclosure, the relief may be obtained upon a subsequent and a proper application.”[39] (emphasis added)

  1. [88]
    The attitude evinced by courts about the consequences of inadequate disclosure was summarised by Gageler J in Aristocrat Technologies Australia Pty Ltd v Allam[40] where his Honour said:

[14] There remains the question of whether it is appropriate to consider making any order on the applicants’ summons in advance of remitter. Were it not for the material non-disclosure in the evidence filed on behalf of Mr Allam and Tonita in support of the applications made by them ex parte on 17 December 2015 and 21 January 2016, I would consider it a sound exercise of discretion to defer all issues between the parties or putative parties for consideration of the Federal Court. That non-disclosure having been noticed, however, it cannot go unremedied.

[15] It is an elementary principle of our ordinarily adversarial system of justice that full and fair disclosure must be made by any person who seeks an order from a court ex parte, with the result that failure to make such disclosure is ordinarily sufficient to warrant discharge of such order as might be made. The principle is not confined to particular types of interlocutory orders. Its rationale lies in the importance to the administration of justice of the courts and the public being able to have confidence that an order will not be made in the absence of a person whose rights are immediately to be affected by that order unless the court making the order has first been informed by the applicant of all facts known to the applicant which that absent person could be expected to have sought to place before the court had the application for the order been contested.” (citations omitted, emphasis added)

  1. [89]
    Garrard was followed by Applegarth J in Heartwood Architectural Timber and Joinery Pty Ltd v Redchip Lawyers,[41] where his Honour said:

[32] … An ex parte order that is obtained in breach of the duty of disclosure is liable to be discharged without a hearing on the merits. The respondent is prima facie entitled to its discharge. An applicant can apply for a new order. In that regard, some courts have adopted a less severe approach than others. The rationale for the necessity to discharge an order made in the absence of full disclosure was stated in Town & Country Sport Resorts (Holdings) Pty Ltd v Partnership Pacific Ltd:

‘The rationale behind the principle is clear; it is of the utmost importance in the due administration of law that the Courts and the public are able to have confidence that an ex parte order has been made only after the party obtaining it has complied with its duty to disclose all relevant facts.

The principle applies to an application to discharge or dissolve an ex parte interim injunction; the discharge of that injunction does not prevent a fresh application being heard and determined in the light of all relevant facts.’

Accordingly, an aggrieved party which applies to discharge an ex parte injunction that was obtained without full disclosure is prima facie entitled to have the injunction discharged even if the Court takes the view that the order would probably have been made even if there had been full disclosure. The merits of the applicant's case for a freezing order may be relevant to the discretion to grant a new order.” (citations omitted, emphasis added)

  1. [90]
    Mineralogy contends, in its written submissions, that on an application to set aside an order made ex parte, the court conducts a rehearing, and takes into account arguments and material not before the court on the first occasion but which affect the appropriateness of the order that has been made, and whether it ought now be discharged, varied or continued. Reliance is placed upon the decision of the Full Court of the Supreme Court of New South Wales in Farrell v Delaney.[42]  In Mr O’Sullivan QC’s oral submissions this position was clarified – to an extent. He said that he was not arguing that, in an application like this, there must be a rehearing. Any disconformity between the two positions may be due to infelicity of expression in the written document. But, it must be observed, many of the authorities relied upon in the written submissions deal with cases where the court was not concerned with inadequate disclosure. The distinction between the two types of case is made clear in Savcor Pty Ltd v Cathodic Protection International APS[43] where Gillard AJA (with whom Ormiston and Buchanan JJA agreed) said:

[21]  … The Rules of Court also give the right to a party to apply to the court for an order to set aside an order made without notice. … If an application is made to the court pursuant to the inherent power or the rule, the court rehears the original application. … It is a rehearing of the whole application. However, at the rehearing the judicial officer has the benefit of submissions and any material the opposing party wishes to place before the court. …

[22] … In my opinion, this jurisdiction is different to the situation where an order made ex parte is set aside because there was a material non-disclosure of a material matter by the party who obtained the order. The order is set aside because of some irregularity and not on the merits. When this jurisdiction is enlivened, the court’s function is to determine on the material that was placed before the judicial officer at first instance, whether a party has failed to discharge the obligation which rests upon any party seeking an order ex parte, namely, making a full and fair disclosure of all matters within its knowledge and which are material, to the court. The court is not concerned whether the order should have been made on the material before the court. …” (citations omitted, emphasis added)

  1. [91]
    Where a party fails in its obligation to supply the place of the absent party to the extent of bringing forward all the material facts which that party would presumably have brought forward in its defence to the application then any order obtained “must almost invariably fall.”[44]
  2. [92]
    That the court turns its face against an applicant that has failed to adequately discharge its duty has been made clear. In the usual case, such an applicant will be required to bring a new application. This was recognised as long ago as 1835 when, in Attorney-General v Mayor of Liverpool,[45] Pepys MR said:

“A very wholesome rule, it is true, has been established in this Court; that if a party comes for an ex parte injunction, and misrepresents the facts of the case, he shall not then be permitted to support the injunction by shewing another state of circumstances in which he would be entitled to it: because the jurisdiction of the Court in granting ex parte injunctions is obviously a very hazardous one, and one which, though often used to preserve property, may be often used to the injury of others; and it is right that a strict hand should be held over those who come with such applications.” [46]

Was there adequate disclosure?

  1. [93]
    WA identified five areas in which it submitted that there had been inadequate disclosure:
    1. (a)
      the extent of compliance with the 2014 Award,
    2. (b)
      the nature and terms of the 2019 Award,
    3. (c)
      the availability of the ex parte procedure,
    4. (d)
      the breach of parliamentary privilege constituted by reference to statements made in the Parliament of Western Australia, and
    5. (e)
      the declaratory nature of the awards.

Compliance with the 2014 Award

  1. [94]
    The extent of disclosure on this aspect is discussed above. There is, in addition, a further requirement contained in r 365U(2)(b)(i) to the effect that the affidavit in support of an application under s 35 of the CA Act must state “the extent to which the award has not been complied with, at the date the application is made.”
  2. [95]
    The written submissions of Mineralogy stated that paragraphs 17 – 20 of Mr Bosma’s affidavit provided evidence as “the extent to which the Awards have not been or will not be complied with”.  The relevant paragraphs are:

“13. As described in paragraphs [17] - [21] below, the Respondent has evinced that it is unwilling to comply with either of the 2014 Award or the 2019 Award.

  1. On the evening of 11 August 2020, I became aware from media reports that the Respondent had called an emergency sitting to debate and pass legislation to defeat the Applicants’ claims made in the current arbitration against the Respondent. Exhibited hereto and marked SRB-08 is a true and correct copy of a bundle of media reports that I accessed and read on 11 August 2020.
  1. The relevant legislation referred to in those media reports is the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Amendment Bill 2020 (the Bill). Exhibited hereto and marked SRB-09 is a true and correct copy of the Bill and associated Explanatory Memorandum.
  1. Clause 10(4) of the Bill states:

The arbitral award made in a relevant arbitration and dated 20 May 2014 is of no effect and is taken never to have had any effect.

  1. Clause 10(6) of the Bill states:

The arbitral award made in a relevant arbitration and dated 11 October 2019 is of no effect and is taken never to have had any effect.

  1. At the time of affirming this affidavit, the Western Australia Legislative Assembly Hansard is not available to the public.”
  1. [96]
    The affidavit does not comply with r 365U(2)(b)(i). It is misleading. It says nothing about the extent (or lack) of compliance by WA with either Award “at the date the application is made”.
  2. [97]
    The declaration made in the 2014 Award was:

“Declare that the August 2012 Submission was a proposal submitted pursuant to clause 6 of the State Agreement with which the Minister was required to deal under clause 7(1) of the Agreement.”

  1. [98]
    The declaration did not require WA to do anything but, after that award was made, the relevant Minister did deal with the submission as required under clause 7(1) of the agreement and so much was recognised by Mr McHugh in his reasons in the 2019 Award. Any force that declaration might have had was exhausted by the Minister complying with the terms of the Agreement.
  2. [99]
    WA had also complied with the costs order. It follows, then, that there was nothing left to enforce from the 2014 Award. The declaration was nothing more than a statement of fact which was of historical interest only.
  3. [100]
    Thus, Mr Bosma’s affidavit had, through omission, presented a misleading picture of the relevant circumstances and, thus, induced the court to act on a wrong basis.

The nature and terms of the 2019 Award

  1. [101]
    WA submits that because neither the affidavit of Mr Bosma nor the written submissions set out the precise terms of the 2019 Award there was a failure to disclose that the form of the declarations were such that there could not be non-compliance by WA. I do not accept that. The 2019 Award was an exhibit and I was taken to it, and the declarations made, in oral submissions.
  2. [102]
    In its submissions in reply, WA argues that it has another point, namely, that Mineralogy did not disclose that the form of the declarations (that is, the terms in which they were expressed) were such that there could be no non-compliance. This is considered below.

The availability of the ex parte procedure

  1. [103]
    A major failure to adequately disclose relevant matters concerned the submissions made with respect to the so-called “two-step procedure for enforcement”. This formed part of the basis of Mineralogy’s argument in favour of an ex parte hearing which I have dealt with above.

A breach of parliamentary privilege?

  1. [104]
    In the written submissions relied upon at the original hearing Mineralogy submitted:

“Here, the application is brought as a ‘defensive process’ in respect of the Amending Bill. The State seeks to depart from the status quo and to radically alter, and eradicate, the rights inhering in the Applicants by virtue of the awards.”

  1. [105]
    WA submits that the characterisation of the application as a “defensive process” invited the Court to characterise Parliament’s conduct as improper. Other references were made by Mineralogy in its submissions to the effect that the Amending Bill was evidence of “serious mischief” by WA, that the conduct of WA “involved a deliberate misleading of the applicants”, and, by introducing the Amending Bill, WA had the “aim of preventing the First Applicant from obtaining access to the Courts.”
  2. [106]
    WA submits that Mineralogy should have alerted the court to the possibility that this type of argument involved a breach of parliamentary privilege.
  3. [107]
    I do not accept that this is an issue of inadequate disclosure. The statements made may have been a breach of parliamentary privilege – but on these submissions that is a question I do not have to decide.

The declaratory nature of the awards

  1. [108]
    WA argues that Mineralogy should have disclosed a number of authorities dealing with the issue of the enforceability of declarations. The fact that Stewart J, in Eiser Infrastructure Ltd v Kingdom of Spain,[47] had considered this question should have been brought to the court’s attention. His Honour said:

[91] An arbitral award is enforced through the means of the entering of a judgment on the award, either in the form of a money judgment for the amount of an award or for damages for failing to honour an award. That form of enforcement by a court is an exercise of judicial power: TCL at [32]. There is some debate in the authorities as to whether an award can be enforced by means of a court making a declaration. See Tridon Australia Pty Ltd v ACD Tridon Inc  and AED Oil Ltd v Puffin FPSO Ltd [2010] VSCA 37; 27 VR 22 at [18]–[20].”

  1. [109]
    The uncertainty about the capacity to enforce an award which grants declaratory relief was the subject of consideration in Tridon Australia Pty Ltd v ACD Tridon Inc.[48] Any consideration of that decision must be prefaced with the acknowledgement that it concerned an application under s 33 of the Commercial Arbitration Act 1984 (NSW), which allowed a court to refuse enforcement on discretionary grounds. That is a power which is not present in s 35 of the CA Act. It is relevant in the circumstances, though, because of the reasoning employed by Giles JA.[49] His Honour excised consideration of the issue of enforcement from the issue of the grant of leave. His Honour said:

[6]  It is important to note that s 33 begins by referring to an enforcement by leave, the entry of judgment in terms of the award being consequential upon the grant of leave. The first question, then, must be what is desired by way of enforcement, and it is only when that question is asked and satisfactorily answered that there can be sensible attention to whether leave should be granted.

  

[11]  … Enforcement is a plain word, and means something quite different from a restatement of the effect of the award in the form of a judgment. … There has been nothing put forward in this case to suggest any occasion for enforcement of the declarations made in the interim award. They are binding on the parties, and bind them for the balance of the arbitration and beyond that.

[12]  I agree with Smart AJ’s view that there is no utility in making the order sought, but for the perhaps more fundamental reason that there is just no question of enforcement yet arising. In the absence of any question of enforcement arising, it would not be appropriate to grant leave to enforce the award.” (emphasis added)

  1. [110]
    Mineralogy referred to Electra Air Conditioning BV v Seeley International Pty Ltd (“Electra Air Conditioning”)[50] and AED Oil Ltd v Puffin FPSO Ltd (“AED Oil”)[51] as support for the proposition that the declaratory awards made in this case are enforceable. Those decisions, though, were more concerned with the power of an arbitrator to award declaratory relief. In AED Oil, the Court of Appeal, referring to Electra Air Conditioning, said that that there is Australian authority which supports the proposition that declaratory awards made by arbitrators are enforceable.[52]
  2. [111]
    The issue raised in this case, though, is whether the declarations made in 2014 and 2019 are the types of declarations which can be enforced. This is not a question which needs to be resolved now. The point is that these are issues which should have been raised but which were not and thus constitute a failure to make proper disclosure.

The “public policy” ground

  1. [112]
    Section 36(1)(b)(ii) of the CA Act provides that enforcement of an award may be refused if: “the recognition or enforcement of the award would be contrary to the public policy of this State.”
  2. [113]
    Section 36(1)(b)(ii) is only relevant to whether or not, had WA been given notice of the original application, it could not have succeeded in any event in resisting the orders sought. The relevance of this arises from what was recognised by McPherson JA in Queensland Police Credit Union Ltd v Criminal Justice Commission[53] where, among other things, his Honour referred to the reasons given by Megarry J in John v Rees:[54]

“It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. ‘When something is obvious,’ they may say, ‘why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start.’ Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.”[55]

  1. [114]
    This principle is of particular importance where there has been a denial of natural justice affecting the entitlement of a party to make submissions on an issue of fact. But the general principle remains the same. It was put this way by the High Court of Australia in Stead v State Government Insurance Commission:

“… if the Full Court is properly to be understood as saying no more than that a new trial would probably make no difference to the result, their Honours failed to apply the correct criterion. All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result.”[56] (emphasis added)

  1. [115]
    To similar effect was the decision in Ainsworth v Criminal Justice Commission[57] about which McPherson JA  said (in Queensland Police Credit Union Ltd v Criminal Justice Commission):

“That there is a requirement that the person aggrieved by failure to accord procedural justice is bound to demonstrate that successful advantage would have been taken, and in what particulars, of the opportunity, if granted, of being heard is not a matter that emerges from any of the judgments delivered in the leading decision of Ainsworth v Criminal Justice Commission…”[58]

  1. [116]
    Two public policy factors were raised by WA:
    1. (a)
      enforcement of the 2014 Award could result in double recovery, and
    2. (b)
      the enforcement application depended upon an infringement of parliamentary privilege.
  2. [117]
    At this point in the proceedings, I am of the view that I need only determine whether or not there are arguable grounds available. I am satisfied that there are for the reasons which follow.
  3. [118]
    With respect to the issue of double recovery there is authority to support a conclusion that enforcement of an award which allows for double recovery would likely be contrary to public policy: Indian Farmers Fertiliser Cooperative Ltd v Gutnick.[59]
  4. [119]
    I do not accept Mineralogy’s submission that no issue of double recovery arises because the enforcement of the Awards “simply took effect as a judgment of the court”. The order made on 13 August 2020 is that the Awards be enforced. It was recognised in Eiser Infrastructure Ltd v Kingdom of Spain[60] that reference to the enforcement of an arbitral award can be used to mean the entering of a judgment on the award to the exclusion of execution, or it can mean execution, or it can encompass both. It is not a restatement of the awards in the terms of a judgment.
  5. [120]
    On the question of infringement of parliamentary privilege it was argued by WA that enforcement of the Awards at least arguably requires the court to characterise the conduct of the Western Australian Parliament in introducing and passing the Amending Bill as evincing an intention not to comply with the Awards. Mineralogy contended that an infringement of parliamentary privilege did not fall within the public policy exception but did not develop the argument. The fundamental position of parliamentary privilege is more than just a rule of evidence and it is available to WA in any argument should Mineralogy pursue enforcement of these Awards.
  6. [121]
    IM argues that an infringement of the privilege of the Western Australian Parliament cannot be contrary to public policy in Queensland. That is inconsistent with the reasoning in decisions such as Re Bell Group NV (in liq) (No 2).[61]

The nature of the 2019 Award

  1. [122]
    WA argues that the 2019 Award was not an “award” within the meaning of s 35 of the CA Act. Given my findings on the other grounds I need not consider this.

Conclusions on the procedural issues

  1. [123]
    Mineralogy and IM were not entitled to bring this application without having served WA. WA is entitled to have the order set aside.
  2. [124]
    Further, through its submissions it:
    1. (a)
      presented an inaccurate summary of the relevant law concerning the hearing of a s 35 application including the availability of an ex parte application,
    2. (b)
      presented a misleading picture of the extent of compliance by WA with, at least, the 2014 Award, and
    3. (c)
      failed to adequately set out the law relating to the enforceability of declarations made in an award.
  3. [125]
    On that basis, WA is also entitled to have the order set aside.

What is the effect of the 2020 Amending Act – Carthago delenda est

  1. [126]
    In 146BC, Rome emerged victorious over Carthage at the end of the Third Punic War. The city was razed to the ground, the survivors were sold into slavery and Rome achieved hegemony over the western Mediterranean. It was the last step in Rome’s complete destruction of that commercial and military competitor. The devastation was so great that legends grew about its severity. A common, but erroneous, story emerged in the 19th century in which it was asserted that the Romans had sowed salt into the soil so that nothing would ever grow there again. 
  2. [127]
    WA is not Rome. And Mineralogy is not Carthage. But the authors of the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Amendment Act 2020 (WA) might be thought to have had the same level of obliteration in mind when that Act was drafted.
  3. [128]
    There are two broad areas with which the 2020 Amendments are concerned: there are “disputed matters” which cover the conduct of WA, or an agent of the State, connected with the mining project or the making of the State Agreement; and there are “protected matters” which concern the conduct of WA, connected or associated with the drafting of the 2020 Amendments, the enacting of the amending legislation, and the making of any subsidiary legislation. Other definitions are also very wide in their application. For example, the term “proceedings” extends to any administrative law review (for the purpose of excluding them). The rules of natural justice are also excluded.[62]
  4. [129]
    The 2020 Amendments came into operation from the first minute of 13 August 2020, being the day on which it received Royal Assent.[63]
  5. [130]
    If valid, the 2020 Amendments:
    1. (a)
      preserve the State Agreement,
    2. (b)
      bring the arbitrations conducted by Mr McHugh to an end,
    3. (c)
      deem any awards made to be void,
    4. (d)
      deem any proposals previously submitted to be ineffective but allow for new proposals to be submitted,
    5. (e)
      provide that no current or future liability associated with disputed matters attaches to the State and no proceedings alleging liability can be brought against the State,
    6. (f)
      provide that no reviews or appeals can be prosecuted in respect of disputed matters,
    7. (g)
      exclude the use of freedom of information provisions or discovery for any documents connected with a disputed matter,
    8. (h)
      provide that Mineralogy, IM, Mr Clive Palmer and others must indemnify, and keep indemnified, the State against any proceedings brought or connected with a disputed matter,
    9. (i)
      provide that “relevant persons” (which term includes Mineralogy and IM) must indemnify, and keep indemnified, the State against certain legal costs which might arise,
    10. (j)
      provide that if the Commonwealth incurs a liability to any person or a loss in connection with a disputed matter then the State can invoke the indemnities and assign the proceeds to the Commonwealth, and
    11. (k)
      the protections referred to above apply similarly to “protected matters”.
  6. [131]
    There are other provisions which stand ready to deal with the remote possibility that some order might be made against the State. For example, s 25 provides:

25. Further provisions about liability of State

  1. (1)
    This section applies to a liability of the State (whether arising before, on or after commencement) connected with a protected matter.
  1. (2)
    No amount can be charged to, or paid out of, the Consolidated Account to meet the liability.
  1. (3)
    No amount can be borrowed by or on behalf of the Crown in right of the State to meet the liability.
  1. (4)
    No asset, right or entitlement of the State can be taken or used by any person to enforce the liability.
  1. (5)
    No execution or other process in the nature of execution can be issued out of any court against the State in relation to the liability.
  1. (6)
    In subsections (1), (4) and (5), references to the State include the following 
  1. (a)
    a person who is a former State authority, if the liability is connected with 
  1. (i)
    the person’s conduct while and as a State authority; or
  1. (ii)
    otherwise the person’s role as a State authority;
  1. (b)
    a State agent;
  1. (c)
    a person who is a former State agent, if the liability is connected with 
  1. (i)
    the person’s conduct while and as a State agent; or
  1. (ii)
    otherwise the person’s role as a State agent.”
  1. [132]
    There are further provisions excluding liability and creating indemnities. The provisions conclude with what has been accurately described as the “mother of all Henry VIII clauses”.[64] Section 30 provides that if the Minister considers that Part 3 “does not deal adequately or appropriately with a matter or thing” or “does not apply to a matter or thing to which it is appropriate for this Part to apply” or “it is appropriate to make provision for improving the effectiveness of an indemnity” or “it is appropriate for this Part to be otherwise improved … in any other way” then the Minister can recommend to the Governor to make an Order for the change to be made to Part 3 or other legislation, if necessary with retrospective operation.
  2. [133]
    The Iron Ore Processing (Mineralogy Pty Ltd) Agreement Amendment Act 2002 (WA) (as amended), if valid, is a juggernaut destroying everything in its path.

The 2020 Amending Act – “an unpleasant smell in the room”?

  1. [134]
    Mineralogy applied for an adjournment of this proceeding on the basis that the validity of the 2020 Amendments was subject to challenge in the High Court of Australia. At the time of the hearing, Mr Palmer had commenced proceedings and, since the hearing, Mineralogy has also commenced proceedings seeking similar relief. For the purposes of dealing with the case made against it by WA, it argued that the validity of the 2020 Amendments should be assumed. The High Court of Australia has long followed the practice that constitutional questions should not be decided unless it is necessary to do justice in the given case and to determine the rights of the parties.[65] For the reasons which have already been given and which follow, I am content to proceed on the assumption that this statute is constitutionally valid without deciding that question.
  2. [135]
    The major argument for Mineralogy was that the 2020 Amendments had disabled this Court from adjudicating the application brought by WA to set aside the order made on 13 August. Four reasons were advanced in support of that contention:
    1. (a)
      the order of this Court of 13 August had been “extinguished” by virtue of s 11 of the 2020 Amendments,
    2. (b)
      if this Court were, upon hearing from the parties, to decide to dismiss the application by WA, that order would itself be “extinguished” as the 2020 Amendments makes invalid any order which is not in favour of WA,
    3. (c)
      if the provisions affecting orders of this Court are not engaged, the effect of the 2020 Amendments is that the proceedings themselves have been terminated so that no order is capable of being made either for or against WA’s application, and
    4. (d)
      Mineralogy is unable to make any submissions about the conduct of the State that are adverse to WA’s interests and the Court is obliged to decline to admit, and not rely upon, evidence that might be presented in an effort to defend against the State’s application.
  3. [136]
    Mr Jackson QC, for IM, submitted that, in the absence of the 2020 Amendments, this case was one in which no basis emerged for not enforcing the awards. In the absence of the 2020 Amendments, the application should be refused because no ground under s 36 of the CA Act had been established. But, he said, “we know that there is the amending Act,” and, “it can’t really be treated as a kind of unpleasant smell in the room to be noticed but not spoken of”. These submissions were made in support of the application for an adjournment and relied upon what was said to be the removal, by the 2020 Amendments, of any capacity in either Mineralogy or IM to adequately defend the order which had been made.
  4. [137]
    The attitude of Mineralogy is that the validity of the 2020 Amendments is not open for question in these proceedings and, as a result of the provisions of that Act, the order made on 13 August has been extinguished and, therefore, there is no need for these proceedings to be concluded. It argues that the proceedings should be adjourned until the High Court determines the issue of validity.

Is there an order which can be set aside?

  1. [138]
    Mineralogy relies upon s 11(6) of the 2020 Amendments which provides:

“Any remedy, relief, order, direction, award or ruling resulting from, or any other outcome of, the proceedings is extinguished to the extent that it is against, or unfavourable to, the State or otherwise requires the State to do, or not to do, anything.”

  1. [139]
    It says that s 11(6) has the effect of extinguishing the order of 13 August and there is no room for an order to be made with respect to it. That is contested by WA. It relies on the many authorities to the effect that an order or decision of a superior court is valid until it is set aside.[66]
  2. [140]
    Whatever the effect of s 11(6) of the 2020 Amendments, the order made remains on the records of this court and cannot simply be ignored because of the effect of the 2020 Amendments. In Isaacs v Robertson,[67] the Privy Council considered that there was no category of orders made by a court of unlimited jurisdiction which could simply be ignored because they are void ipso facto without there being any need for proceedings to have them set aside.[68] 
  3. [141]
    The 2020 Amendments do not, on their face, purport to make an order setting aside an order which would come within the description of s 11(6). The notion that, through the enactment of a statute in one State, an order of the Supreme Court of another State or a Commonwealth court might, without more, be set aside, could be catnip for constitutional commentators. But, in my opinion, the law is clear. Unless and until this Court, or another competent court, decides that s 11(6) applies to the order of 13 August and then makes an order setting that order aside, the order of 13 August continues in existence and no party is entitled to proceed on any other basis.[69] As it was put by Gillard J in National Australia Bank Ltd v Juric:[70]

“It is not open to the person bound by the order to ignore it or to seek to treat it as null and void. The order must be obeyed until the Court discharges the order or overrules it.”[71]

  1. [142]
    Notwithstanding any effect the 2020 Amendments might otherwise have, the order of 13 August remains an order of this Court until set aside by this Court or another competent court. And it remains the case that a jurisdiction to set aside its orders is inherent in every court unless displaced by statute.[72] Where an order, by force of valid legislation, ceases to have any effect, the court retains the inherent jurisdiction to “keep the record clear” and set aside such an order.[73]
  2. [143]
    Whatever the standing of the 2020 Amendments, there is an order of this court enforcing the terms of the two awards which may, in the circumstances considered above, be set aside.

Should these proceedings be adjourned?

  1. [144]
    Mineralogy seeks an order adjourning these proceedings until the determination of the application made to the High Court of Australia. I do not accept that there is a proper basis for an adjournment. If Mineralogy is successful in the High Court and the 2020 Amendments are held to be invalid then Mineralogy can return to this court and renew its application for enforcement. If Mineralogy is unsuccessful in the High Court, then it follows that the order made on 13 August is of no effect and Mineralogy is prevented from taking any further action with respect to either of the awards.

Orders

  1. [145]
    The order of 13 August 2020 is set aside.
  2. [146]
    The Originating Application filed by Mineralogy and IM on 12 August 2020 is adjourned to a date to be fixed.
  3. [147]
    I will hear the parties on costs.

Footnotes

[1]Those proceedings were commenced after this application was heard.

[2]State of Western Australia v Mineralogy Pty Ltd [2020] WASC 58.

[3](2011) 38 VR 303.

[4](2012) 292 ALR 161.

[5]An “Act” is an Act of the Queensland Parliament: Acts Interpretation Act 1954 s 6.

[6]Acts Interpretation Act 1954 s 14H.

[7](2011) 38 VR 303.

[8](2012) 292 ALR 161. This  decision was reversed in Dampskibsselskabet Norden A/S v Beach Building & Civil Group Pty Ltd (2013) 216 FCR 1 but on unrelated grounds.

[9][2002] 2 Lloyd’s Rep 326 at 331-332.

[10]Dampskibsselskabet Norden A/S v Beach Building & Civil Group Pty Ltd (2012) 292 ALR 161.

[11]Model Law on International Commercial Arbitration 1985, UN Doc A/40/17 (7 July 2006) annex I.

[12]Secretariat of the United Nations Commission on International Trade Law, ‘Explanatory Note by the UNCITRAL Secretariat on the Model Law on International Commercial Arbitration’ (Explanatory Note, UNCITRAL Secretariat).

[13]Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic).

[14]Supreme Court of Victoria, Practice Note SC CC 3, 30 January 2017.

[15](1944) 68 CLR 571.

[16]Cameron v Cole (1944) 68 CLR 571 at 589. Adopted by Gibbs J in Taylor v Taylor (1979) 143 CLR 1 at 7.

[17](1998) 43 NSWLR 290.

[18]Hoskins v Van Den-Braak (1998) 43 NSWLR 290 at 293 and 298.

[19][2000] 1 Qd R 626 at 634-635.

[20][2004] 2 Qd R 17 at 25-26 [32]-[34], 28 [44], and 49 [136].

[21][2000] 1 Qd R 626.

[22]Queensland Police Credit Union Ltd v Criminal Justice Commission [2000] 1 Qd R 626 at 634-635. That reasoning was followed in Greig v Stramit Corporation Pty Ltd [2004] 2 Qd R 17.

[23]Greig v Stramit Corporation Pty Ltd [2004] 2 Qd R 17 at 27.

[24]Greig v Stramit Corporation Pty Ltd [2004] 2 Qd R 17 at 42.

[25]Greig v Stramit Corporation Pty Ltd [2004] 2 Qd R 17 at 49. See, to similar effect, Isaacs v Robertson [1985] AC 97; Raja v Van Hoogstraten (No 9) [2009] 1 WLR 1143.

[26]927 F. 2d 955 (7th Cir 1991) at 956.

[27](2009) 240 CLR 319 at 376-377 [130]-[133].

[28]International Finance Trust Company Ltd v New South Wales Crime Commission (2009) 240 CLR 319 at 377 [133].

[29](1912) 15 CLR 679.

[30]Thomas A Edison Ltd v Bullock (1912) 15 CLR 679 at 681-682.

[31][2005] FCA 955.

[32]See, eg, Savcor Pty Ltd v Cathodic Protection International APS (2005) 12 VR 639; Williams (as liquidator of Willahra Pty Ltd (in liq)) v Kim Management Pty Ltd [2013] 1 Qd R 387

[33][1988] 1 WLR 1350 at 1356-1357.

[34][1986] 2 Lloyd’s Rep 428.

[35]Including Papas v Grave [2013] NSWCA 308; D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; Fitz Jersey Pty Ltd v Atlas Construction Group Pty Ltd (2017) 94 NSWLR 606; Orpen v Tarantello [2009] VSC 143.

[36][2013] NSWCA 308.

[37]Savcor Pty Ltd v Cathodic Protection International APS (2005) 12 VR 639 at 648 [25] per Gillard AJA.

[38](1993) 32 NSWLR 662.

[39]Garrard v Email Furniture Pty Ltd (1993) 32 NSWLR 662 at 678.

[40](2016) 327 ALR 595.

[41][2009] 2 Qd R 499.

[42](1952) 52 St Rep NSW 236.

[43](2005) 12 VR 639.

[44]Thomas A Edison Ltd v Bullock (1912) 15 CLR 679 at 682.

[45](1835) 1 My & Cr 171, (1835) 40 ER 342.

[46]Attorney-General v Mayor of Liverpool (1835) 1 My & Cr 171 at 210-211, (1835) 40 ER 342 at 355-356. Considered in Thomas A Edison Ltd v Bullock (1912) 15 CLR 679 at 682-683. Followed in Iqnet Pty Ltd v Schleeman [2001] WASC 236. Not everything that Pepys MR said still holds true, eg, that the “Court … is bound to know every clause in every Act that ever passed”. He did describe that, though, as “a degree of knowledge hardly to be hoped for.”

[47](2020) 142 ACSR 616.

[48][2004] NSWCA 146.

[49]With whom Handley and Santow JJA agreed.

[50][2008] FCAFC 169.

[51](2010) 27 VR 22.

[52]AED Oil Ltd v Puffin FPSO Ltd (2010) 27 VR 22 at 26 [20].

[53][2000] 1 Qd R 626 – see the excerpt at [70] above.

[54][1970] Ch 345.

[55][1970] Ch 345 at 402.

[56](1986) 161 CLR 141 at 147.

[57](1992) 175 CLR 564.

[58][2000] 1 Qd R 626 at 634.

[59](2015) 304 FLR 199.

[60](2020) 142 ACSR 616.

[61](2017) 122 ACSR 418.

[62]See Iron Ore Processing (Mineralogy Pty Ltd) Agreement Amendment Act 2020 (WA) ss 12(2), 20(2).

[63]Iron Ore Processing (Mineralogy Pty Ltd) Agreement Amendment Act 2020 (WA) s 2; Interpretation Act 1984 (WA) s 21.

[64]Nick Seddon, ‘The Palmer Act’ Australian Public Law (Web Page, 31 August 2020) .

[65]ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140 at 199 [141] per Hayne, Kiefel and Bell JJ.

[66]Cameron v Cole (1944) 68 CLR 571 at 590, 606; Sanders v Sanders (1967) 116 CLR 366 at 376; DMW v CGW (1982) 151 CLR 491 at 505.

[67]Isaacs v Robertson [1985] AC 97.

[68]Isaacs v Robertson [1985] AC 97 at 102-3 per Lord Diplock.

[69]Hadkinson v Hadkinson [1952] P 258 at 288.

[70][2001] VSC 375.

[71]National Australia Bank Ltd v Juric [2001] VSC 375 at [28]. See also Hillig v Darkinjung Pty Ltd [2008] NSWCA 75 at [33].

[72]Taylor v Taylor (1979) 143 CLR 1 at 16 per Gibbs CJ

[73]Cameron v Cole (1944) 68 CLR 571 at 586 per Latham CJ.

Close

Editorial Notes

  • Published Case Name:

    Mineralogy Pty Ltd & Anor v The State of Western Australia

  • Shortened Case Name:

    Mineralogy Pty Ltd v The State of Western Australia

  • MNC:

    [2020] QSC 344

  • Court:

    QSC

  • Judge(s):

    Martin J

  • Date:

    25 Nov 2020

  • Selected for Reporting:

    Editor's Note

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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