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Gold Ridge Mining Ltd v AIG Australia Ltd[2024] QSC 217

Gold Ridge Mining Ltd v AIG Australia Ltd[2024] QSC 217

SUPREME COURT OF QUEENSLAND

CITATION:

Gold Ridge Mining Limited v AIG Australia Limited [2024] QSC 217

PARTIES:

GOLD RIDGE MINING LIMITED

(applicant)

v

AIG AUSTRALIA LIMITED

(respondent)

FILE NO:

BS 6067 of 2024

DIVISION:

Trial Division

PROCEEDING:

Interlocutory application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

13 September 2024

DELIVERED AT:

Brisbane

HEARING DATE:

16 August 2024

JUDGE:

Hindman J

ORDERS:

  1. The application filed 10 July 2024 is dismissed.
  2. The Court will hear from the parties in respect of costs.

CATCHWORDS:

PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT AND GENERAL STATUTORY POWERS – TO STAY OR DISMISS PROCEEDINGS GENERALLY – where the respondent commenced proceedings in Queensland seeking to enforce an agreement regarding payment in respect of gold ore extracted by the applicant in the Solomon Islands – where the applicant applies to set aside the claim on the basis that service outside Australia was not authorised – where the applicant seeks to have the proceedings stayed on the basis that Queensland is an inappropriate forum – where the applicant contends that the claim has insufficient prospects of success

Land and Titles Act 1996 (Solomon Islands)

Limitation Act 1984 (Solomon Islands)

Mines and Minerals Act 1990 (Solomon Islands)

Uniform Civil Procedures Rules 1999 (Qld) rr. 125(b)(iii), (c), (n), (s), 126, 127

Central Petroleum Limited v Geoscience Resource Recovery Ltd [2018] 2 Qd R 171, considered

Henry v Henry (1996) 185 CLR 571; [1996] HCA 51, cited

Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197; [1998] HCA 32, cited

Regie National des Usines Renault v Zhang (2002) 210 CLR 491; [2002] HCA 10, considered

Safran v Chani [1970] 1 NSWLR 70

Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460, cited

Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55, cited

Zabusky v Virgtel Limited [2021] QSC 17, cited

COUNSEL:

A J Greinke with S F Lamb for the applicant

G J Gibson KC with P Somers for the respondent

SOLICITORS:

Auyeung Hencent & Day for the applicant

Norton Rose Fulbright for the respondent

Synopsis

  1. [1]
    The applicant defendant (GRML) applies pursuant to rule 127 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR):
    1. to set aside the claim on the basis that it contends that service of the claim on it outside Australia was not authorised (rule 127(2)(a));
    2. alternatively, to stay the proceeding on the basis that it contends that this Court is an inappropriate forum for the proceeding (rule 127(2)(b)) or the claim has insufficient prospects of success (rule 127(2)(c)).
  2. [2]
    Rule 127 UCPR provides:
  1.  On application by a person on whom an originating process has been served outside Australia, the court may dismiss or stay the proceeding or set aside service of the originating process.
  1.  Without limiting subrule (1), the court may make an order under this rule if satisfied -
  1. (a)
    service of the originating process is not authorised by these rules; or
  2. (b)
    the court is an inappropriate forum for the trial of the proceeding; or
  3. (c)
    the claim has insufficient prospects of success to warrant putting the person served outside Australia to the time, expense and trouble of defending the claim.
  1. [3]
    The application is dismissed on the basis that:
    1. service of the claim on GRML outside Australia was authorised;
    2. this Court is not an inappropriate forum for the proceeding and the claim does not have insufficient prospects of success.

Service (rule 127(2)(a))

Background to the proceeding

  1. [4]
    GRML is a company incorporated in the Solomon Islands.  It owns the Gold Ridge Mine in the Solomon Islands (the mine).  
  2. [5]
    The respondent plaintiff (AIG) is a company registered in Victoria.  On 14 May 2024, AIG commenced the proceeding in this Court (the Qld proceeding), seeking to enforce a Production Payment Deed (PPD) in respect of gold ore extracted by GRML from the mine.  AIG claims to be an assignee (since 2011) of rights under the PPD. 
  3. [6]
    The relief sought by AIG in the Qld proceeding is:[1]
  1. 1a declaration that by the Production Payment Deed, the defendant is obliged to pay all of the Production Payments now owing and to be owed in the future to the plaintiff;
  2. 2payment of a sum no less than USD488,999.49 being money due and owing by the defendant to the plaintiff under the Payment Production Deed;
  3. 3further or alternatively:
  1.  an account to determine the amount of the Production Payments due and owing by the defendant to the plaintiff pursuant to the Payment Production Deed;
  1.  an order that the defendant pay the plaintiff such amount as is found to be due to the plaintiff on the taking of such account;
  1. 4interest on the amount found to be due to the plaintiff at the rate of 3% per annum above the LIBOR Rate in respect of amounts due up to 30 June 2023 and thereafter at the rate of 3% above the Term SOFR Rate;
  2. 5in the alternative to (d) above, interest on the amount found due to the plaintiff to judgment, pursuant to s 58 of the Civil Proceedings Act 2011 (Qld);
  3. 6specific performance of the defendant’s obligation to send the plaintiff certificates as required by cl 3.5 of the Payment Production Deed;
  4. 7costs.
  1. [7]
    The PPD, dated 26 February 2009, was initially entered into between GRML and Australian Solomons Gold Limited (ASGL) (which subsequently became Australian Solomons Gold Pty Limited).[2]
  2. [8]
    In consideration of ASGL releasing GRML from intercompany indebtedness of $A15 million, the PPD obliged GRML to pay to ASGL a rate of US$15.00 per troy ounce of refined gold it extracted from the mine each quarter.  The PPD defines such a payment as the Production Payment and relevantly provides to the following effect:
    1. that payment to the payee is based on the troy ounces of refined gold of .995 fineness derived from the mine;
    2. for each Production Payment Period (that is, each quarter), GRML is required to send the payee a certificate setting out the information and data necessary for the calculation of the Production Payment, prepared in accordance with generally accepted accounting principles in the Australian gold mining industry, including supporting statements from all refiners in respect of the processing or refining of gold in that period;
    3. the Production Payment is to be made to the payee’s nominated bank account, “no later than 12 noon Melbourne Australia time on the due date for payment.”
  3. [9]
    By a deed of assignment dated 27 February 2009, ASGL assigned its interest in the PPD to American Home Assurance Company (AHAC).  On 1 March 2011, AHAC transferred its business, including its interest in the PPD, to AIG, which was then known as Chartis Australia Insurance Limited.[3]
  4. [10]
    GRML appears to have performed its obligations under the PPD until about 2014.  At that time the mine ceased operation due to flash flooding from cyclones. 
  5. [11]
    The mine recommenced operations in about June 2022.  GRML has not, since that time, performed its obligations under the PPD: hence the Qld proceeding. 

Relevant rules

  1. [12]
    AIG relies upon the following provisions of the UCPR as authorising service of the Qld proceeding outside Australia: rules 125(b)(iii), (c), (n) or (s).
  2. [13]
    Those rules state:

An originating process may be served outside Australia without leave in the following circumstances –

…

  1.  if the claim is for the enforcement, rescission, dissolution, annulment, cancellation, rectification, interpretation or other treatment of, or for damages or other relief in respect of a breach of, a contract that -

…

  1.  was to be wholly or in part performed in Australia; or

…

  1.  if the claim is in respect of a breach in Australia of a contract, wherever made, whether or not the breach was preceded or accompanied by a breach outside Australia that rendered impossible the performance of that part of the contract that ought to have been performed in Australia;

…

  1.  if the claim is founded on a cause of action arising in Australia;

…

  1.  if the claim, so far as it concerns the person to be served, falls partly within 1 or more of paragraphs (a) to (r) and, as to the residue, within 1 or more of the others of paragraphs (a) to (r).

Decision

  1. [14]
    Rule 125(b)(iii) UCPR applies given that AIG’s claim is at least for the enforcement of, or for damages and other relief for breach of, a contract (the PPD) that was to be partly performed in Australia. 
  2. [15]
    The relief claimed at paragraphs 1, 2, 3, 4 and 5 of the claim (see at [6] above) is for the enforcement of the PPD.  The relief claimed at paragraphs 2 and 3 is for damages or other relief for a breach of the PPD.  The relief claimed at paragraphs 1 and 6 is other relief for a breach of the PPD. 
  3. [16]
    Insofar as GRML submitted that the claim is properly one for debt, rather than for breach of contract, I reject that submission.  Breaches of the PPD (both money and non-money breaches) are pleaded at SOC [17]-[18].  The claim for moneys due and owing, whilst it may be claimed as a debt, is also properly articulated as a claim for damages for breach of the PPD.  AIG seeks other relief in respect of the non-money breaches (including specific performance).  
  4. [17]
    The PPD was to be partly performed in Australia for the following reasons.
  5. [18]
    First, clause 3.5 of the PPD required a payment to be made to the payee (AIG) in accordance with clause 4.  Clause 4 required the payment to be made by direct transfer to a bank account nominated in writing by the payee (AIG).   
  6. [19]
    AIG’s letter dated 22 December 2023 nominated a bank account in Melbourne, Australia, as the account into which payment was to be deposited.[4]  Accordingly, the PPD was to be partly performed in Australia.  
  7. [20]
    Second, clause 3.5 of the PPD required particular certificates to be sent to the payee (AIG).  AIG is located in Australia.  GRML submitted that:
    1. the failure to send the certificates occurred in the Solomon Islands;[5]
    2. the certificates required the signature of a director or chief financial officer who is based in the Solomon Islands (I note I would not accept that to be so in circumstances several directors of GRML reside in Australia and GRML’s address in the PPD is an Australian address);
    3. the obligation is to send the certificate.  Sending is at the point of despatch.  That is, if there was a breach of the obligation to send the certificates, the breach occurred in the Solomon Islands. 
  8. [21]
    I find that the word “send” is not necessarily confined to dispatch.[6]  The Macquarie Dictionary defines send as:

To cause to be conveyed or transmitted to a destination: to send a letter.

  1. [22]
    I find that as a matter of construction of clause 3.5 of the PPD, send is to be regarded as an obligation that encompasses not only the act of “dispatching” but also the requirement to “deliver”.  Delivery was to occur in Australia.  Accordingly, the PPD was to be partly performed in Australia.  
  2. [23]
    Based on the above findings, rule 125(b)(iii) UCPR authorised service of the Qld proceeding on GRML outside Australia.  I note there appears to be good arguments as to why service of the Qld proceeding on GRML outside Australia was also authorised pursuant to rules 125(c), (n) or (s) UCPR, but given my findings in relation to rule 125(b)(iii) it is unnecessary for me to consider those arguments further.

Conclusion

  1. [24]
    Service of the Qld proceeding on GRML outside Australia was authorised at least pursuant to rule 125(b)(iii) UCPR.  Rule 127(2)(a) UCPR is not enlivened. 

Inappropriate forum and insufficient prospects (rules 127(2)(b) and (c)) 

Introductory matters

  1. [25]
    Given the findings I have made above, rule 127(2)(a) UCPR is not enlivened.  GRML seeks to prove both (2)(b) and (2)(c). 
  2. [26]
    I note that (2) is not exhaustive and that an order might still be made under rule 127(1) UCPR even if none of the identified matters in (2) are satisfied.  However, GRML did not advance a case that absent it satisfying either of (2)(b) or (2)(c) there were other grounds to grant the application under rule 127.[7] 
  3. [27]
    Also, whilst GRML did make reference to the power of the Court to make orders under rules 16(f) or (g) UCPR or pursuant to its inherent powers,[8] I did not understand that to give rise to any issues that would not be covered by a consideration of the application of rules 127(2)(b) and (c) UCPR.  Accordingly, I intend to restrict my analysis to those provisions.  

Possible application of rule 127(2)(c) – insufficient prospects

  1. [28]
    I commence by disposing of the argument based on rule 127(2)(c) UCPR.  I am not satisfied that the Qld proceeding has insufficient prospects of success to warrant putting GRML to the time, expense and trouble of defending the claim. 
  2. [29]
    GRML says that rule 127(2)(c) is satisfied because for AIG to be able to enforce the PPD against it, AIG must be able to prove the efficacy of the purported assignment from AHAC.  It submits AIG fails to do so because: 
    1. it says AIG has not pleaded the settlement of the agreement to transfer business assets pleaded in SOC [10]-[11];
    2. it says AIG has not pleaded any approval by the Minerals Board for the assignment from AHAC to AIG which it contends is required by operation of section 42 of the Mines and Minerals Act 1990 (SI).
  3. [30]
    As to the first reason at (a) above, I consider it implicit from SOC [12] that it is alleged by AIG that there was a settlement of the agreement to transfer business assets, by which the relevant assignment occurred.  I do not think there is any pleading deficiency, and even if there were, that would be a minor pleading matter that could be fixed or excused.
  4. [31]
    As to the second reason at (b) above, section 42 of the Mines and Minerals Act 1990 (SI) concerns the assignment of mining leases or any interest therein.  The PPD is neither.  That section no application to the PPD.  What is pleaded at SOC [9] in respect of the earlier assignment is not relevant to the claim as pleaded. 
  5. [32]
    Based on the above findings, rule 127(2)(c) UCPR is not enlivened.   

Possible application of rule 127(2)(b) – inappropriate forum

  1. [33]
    Turning then to a consideration of rule 127(2)(b) UCPR.

Further background

  1. [34]
    GRML’s application pursuant to rule 127 UCPR is made in circumstances where after the commencement of the Qld proceeding, on 19 June 2024 GRML commenced proceedings against AIG in the High Court of the Solomon Islands, seeking declaratory and other relief to restrict AIG from enforcing or exercising its rights under the PPD, amongst other matters (the SI proceeding).[9]
  2. [35]
    The SI proceeding is wider in its scope than the Qld proceeding.  In a summary way, and not exhaustively, it seeks to agitate further issues between the parties going to:
    1. the validity of purported assignments by AHAC to AIG of rights under the PPD and a mining mortgage, in circumstances where it contends such assignments were not approved by the Minerals Board of the Solomon Islands (it alleges the effect of that is that the purported assignments were void under s. 42 of the Mines and Minerals Act 1990);[10]
    2. whether AIG is estopped from acting on any rights pursuant to the PPD or the mining mortgage in circumstances where GRML says it assumed such rights had been abandoned.[11]  GRML says it acted on that assumption and changed its position by spending money, deploying resources and entering into legal obligations.[12]  Consequently, GRML claims that AIG should be estopped from asserting that it is entitled to enforce its rights under the PPD and the mining mortgage;
    3. alternatively, whether AIG is barred from enforcing its rights under the PPD and the mining mortgage due to AIG’s delay (eight years – from 2014 to 2022) in giving notice of or seeking to enforce any purported rights derived from the assignments from AHAC in respect of the PPD and the mining mortgage.
  3. [36]
    The existence of that wider dispute and the SI proceeding is relevant to consider in the context of whether this Court is an inappropriate forum for the Qld proceeding. 
  4. [37]
    Insofar as GRML has not yet pleaded any defence, or defence and counterclaim, in the Qld proceeding, it acknowledges that in large part the wider issues it agitates in the SI proceeding could be dealt with in this Court.  There is one caveat to that – GRML submits that the Registrar of Titles for the Solomon Islands may need to be joined to the SI proceeding.  That is said to be because there is an ongoing dispute regarding whether the assignment of the mining mortgage to AHAC should be removed from the titles register and whether AIG should be registered as the assignee of the mortgage over the mining lease.  GRML claims this Court cannot exercise powers under the Land and Title Act (SI) or direct the rectification of the titles register in the Solomon Islands.  That is true.  But this Court can make orders requiring the parties to the Qld proceeding to take certain steps in order to give effect to orders made as might be appropriate.  But this issue is still relevant to consider in the context of whether this Court is an inappropriate forum for the Qld proceeding.   

Relevant principles to be applied

  1. [38]
    The parties appeared slightly at odds as to the legal principles to be applied on an application of this nature.  In truth I think the differences between the parties were often more an issue of emphasis of certain factors to be considered, rather than of substantive disagreement.
  2. [39]
    The relevant legal principles are articulated in a series of English and High Court authorities, particularly including (in date order): (1987) Spiliada Maritime Corporation v Cansulex Ltd,[13] (1988) Oceanic Sun Line Special Shipping Co Inc v Fay,[14] (1990) Voth v Manildra Flour Mills Pty Ltd,[15] (1996) Henry v Henry,[16] (2002) Regie National des Usines Renault v Zhang.[17]       
  3. [40]
    In the most recent of those cases, the majority (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) stated at 503, [24]-[25]:

The expression “inappropriate forum” in par (b) of Pt 10, r 6A(2) is less emphatic than the expression “clearly inappropriate forum”, the latter being the term adopted in Voth to determine whether an Australian court should decline to exercise its jurisdiction. The formulation in Voth, as Spigelman CJ pointed out in James Hardie Industries Pty Ltd v Grigor, was adopted in preference to the “clearly more appropriate forum” test favoured in the United Kingdom. Thus, it should at once be noted that a court is not an inappropriate forum merely because another is more appropriate.

Because a court's power to stay proceedings is an aspect of its inherent or implied power to prevent its own processes being used to bring about injustice, the same concepts and considerations necessarily inform the test of “inappropriate forum” in par (b) of Pt 10, r 6A(2) as inform the “clearly inappropriate forum” test adopted in Voth. And because the ultimate consideration is the prevention of injustice, they inform it in the same way. Thus, it is appropriate to note what was said by Dawson, Gaudron, McHugh and Gummow JJ in Henry v Henry. Their Honours said:

“In [Voth], this Court confirmed its rejection, in [Oceanic Sun], of the forum non conveniens principle as stated by the House of Lords in Spiliada Maritime Corporation v Cansulex Ltd. The Spiliada principle allows that a court may stay proceedings which are pending before it if that court is not the natural forum and there is another available forum which is clearly or distinctly more appropriate. The result is that, in the United Kingdom, a stay will be granted in favour of a clearly more appropriate forum or, which is much the same thing in practice, the natural forum, that being the forum ‘with which the action [has] the most real and substantial connection’”…

  1. [41]
    The now Chief Justice of Queensland in a more recent trial decision - Central Petroleum Limited v Geoscience Resource Recovery Ltd [2018] 2 Qd R 171 at 382-3 [34-35] - referred to the above cases and concluded (footnotes omitted) at [35]:

The test is whether Queensland is a clearly inappropriate forum. The onus is on the defendant, here Geoscience, to satisfy this court that it is so inappropriate a forum for the determination of the proceedings that their continuation would be productive of injustice, because it would be oppressive (in the sense of seriously and unfairly burdensome, prejudicial or damaging) or vexatious (in the sense of productive of serious and unjustified trouble and harassment) to it. It is not a question of striking a balance between competing considerations. The focus is upon the inappropriateness of the local court, not the appropriateness or comparative appropriateness of the foreign court.

  1. [42]
    Whilst not detracting from the applicability of the above principles, what GRML sought to emphasise in its submissions was that the question of what is an inappropriate forum is properly informed by what was described as broader justice questions raised by cases such as Spiliada.  Those broader justice questions turn attention to, for example:
    1. what is the natural forum of the dispute;
    2. relevant connecting factors to the forum;
    3. practicality issues concerning the forum, including cost and convenience; 
    4. whether there is a legitimate personal or juridical advantage to a particular forum;
    5. “where the case may be tried suitably for the interests of all the parties and the ends of justice”.[18]
  2. [43]
    I proceed on the basis that those broader justice questions do form part of the relevant enquiry to be undertaken as to whether a forum is inappropriate for a proceeding. 

Application of the relevant principles

  1. [44]
    I doubt that there would be any dispute between the parties that the matters the subject of the Qld proceeding and the SI proceeding are appropriately determined either in Queensland (or another State of Australia) or in the Solomon Islands.  The facts relating to both proceedings reveal at least some connection to both jurisdictions.  It needs to be kept clearly in mind that in this application I am not assessing what is the more appropriate forum, I am simply determining whether Queensland is an inappropriate forum for the Qld proceeding (but taking into account that GRML contends that the Qld proceeding in fact forms part of a wider dispute between the parties).  AIG having properly commenced the Qld proceeding, it is entitled to have the Qld proceeding determined here unless I conclude that Queensland is an inappropriate forum.  
  2. [45]
    In my view, this Court is not an inappropriate forum for the Qld proceeding.
  3. [46]
    There are several facts and arguments to be considered in reaching that conclusion, that I set out below.  
  4. [47]
    First, GRML makes an argument that rule 126(4) UCPR would not be met, if an application under rule 126(1) were necessary, because the claim has no ‘real and substantial connection with Australia’.  I am not here concerned with that rule – no application under rule 126(1) is necessary.  Regardless, the claim in my view does have a real and substantial connection with Australia.  In that respect I note:
    1. the PPD when initially entered into was entered into by an Australian company – ASGL.  The individuals who signed the PPD for both parties resided in Australia at the time of execution;
    2. AIG is Australian company that carries on business in Australia;[19]
    3. in respect of GRML, four of its seven directors are Australian nationals, five of its seven directors reside in Australia;
    4. GRML has given the following addresses in Australia:
      1. its conditional notice of intention to defend filed in the Qld proceeding states its address as “Diagno ‘Southport Central Tower Two’, Suite 2607, Level 6, 5 Lawson Street, Southport in the State of Queensland;[20]
      2. the PPD states its address as Ground Floor, 60 Kingsford Smith Drive, Albion in the State of Queensland (and no notice of a change of address under clause 21.10 of the PPD has been given), 
    5. payments under the PPD have previously been made to an Australian account (at least partially between 2011 and 2014);
    6. it appears that gold extracted from the mine has historically been either sold to Australian refineries or refined in Australia to produce the refined fine gold (a witness from Australia may be best placed to give evidence of the amount of refined fine gold actually produced);
    7. the certificates GRML has failed to provide are required to be prepared in accordance with generally accepted accounting principles in the Australian gold mining industry;[21]
    8. the required timing of payments is made referrable to an Australian timezone.
  5. [48]
    I specifically record my disagreement with the submission made on behalf of GRL that a connection by an address for service of notices, payment or other contractually required documents is a trivial link.   
  6. [49]
    Second, the Qld proceeding is not in relation to mineral rights.  The Qld proceeding primarily concerns a contractual entitlement to payment of monies.  However, insofar as it is relevant to consider the whole of the dispute between the parties (encompassing the matters raised in the SI proceeding), it does seem to me to be possible that GRML would plead in defence and by way of counterclaim in the Qld proceeding such that all matters in dispute between the parties could be determined in the Qld proceeding.  There is not necessarily a duplicity of proceedings.  Potential res judicata or Ashun estoppel issues need not arise.   
  7. [50]
    Third, although the laws of the Solomon Islands apply to the PPD, GRML does not suggest there is any significant difference between the Solomon Islands law and Australian law that is likely to cause any difficulties.  Insofar as the wider dispute might end up wholly before the Queensland court and may necessitate the interpretation and application of legislation of the Solomon Islands,[22] that is not a particular difficulty. 
  8. [51]
    Fourth, I note that in the PPD the parties submit to the non-exclusive jurisdiction of the Solomon Islands.[23]  That is a factor to be taken into account, but is no bar to the Qld proceeding.
  9. [52]
    Fifth, referring to Zabusky v Virgtel Ltd,[24] GRML submits that the fact it has no assets in Queensland is relevant in determining whether this Court is an inappropriate forum. However, that case is of limited assistance because it dealt with a different situation, not similar to the facts of this case.[25]  It does appear possible that enforcement action would be able to be taken on a Queensland judgment within Australia against GRML.  There may be assets (for example, gold) of GRML in Australia from time to time; directors of GRML in Australia could be required to attend enforcement hearings; GRML does identify an address in Queensland.  There is no evidence to presently suggest that a Queensland judgment would not be able to be registered in the Solomon Islands and thereby enforced there, or that such a process would be particularly onerous.
  10. [53]
    Sixth, there are witnesses located in both jurisdictions likely necessary to be called at a trial, although likely more from the Solomon Islands.  If any expert on the law of the Solomon Islands was to be required, although not known with any certainty, that expert is more likely to be from the Solomon Islands.  In either forum, there will be some level of inconvenience to some of the witnesses.  But it should also be recalled that Australia and the Solomon Islands are Pacific neighbours and so the submission cannot go too far.    
  11. [54]
    Seventh, insofar as to the test for “inappropriate forum” is unchanged in substance from the test of “clearly inappropriate forum” as submitted for AIG,[26] there is no real suggestion that the continuation of the Qld proceeding would be seriously and unfairly burdensome, prejudicial or damaging or vexatious in the sense of producing or productive of serious and unjustified trouble and harassment.  
  12. [55]
    Eighth, I agree with the submission for GRML that the High Court of the Solomon Islands has undoubted jurisdiction to determine all disputes between the parties.  Whilst I am prepared to conclude that the Solomon Islands is a natural and appropriate forum for the wider dispute between the parties, that is not determinative.
  13. [56]
    Ninth, I consider it of limited relevance to even the wider dispute between the parties that rights to mine ore at the mine arose from an agreement and a mining lease granted by the Government of the Solomon Islands.[27]  That is a background fact, but does not appear to be to be particularly relevant to any part of the wider dispute between the parties.    
  14. [57]
    The onus is on GRML to demonstrate that Queensland is an inappropriate forum for the Qld proceeding.  Having regard to the abovementioned matters, it has not satisfied that onus.  Rule 127(2)(b) UCPR is not enlivened.  I consider that the Qld proceeding can be tried “suitably for the interests of all the parties and for the ends of justice” (see [42](e) above) in Queensland.    

Outcome

  1. [58]
    The application is dismissed.  I will hear the parties as to costs. 

Footnotes

[1]  Claim and statement of claim (CFI 1).

[2]  Affidavit of Zhu (CFI 11), ex p. 227 (PPD).

[3]  Affidavit of Henderson (CFI 15), [30(b)].

[4]  Affidavit of Henderson (CFI 15), ex p. 680.

[5]  GRML sought to draw an analogy with a case concerning repudiation, Safran v Chani [1970] 1 NSWLR 70, but the circumstances are so factually different that I do not find the analogy persuasive. 

[6]  See exhibit 1.

[7]   T1-52, LL35-37.

[8]  Defendant’s outline of submissions (CFI 8), fn7.

[9]  Affidavit of Zhu (CFI 10), ex p. 27 (SI proceeding).

[10]  SI proceeding, [16]-[17].

[11]  SI proceeding, [20].

[12]  SI proceeding, [22].

[13]   (1987) AC 460.

[14]  (1988) 165 CLR 197. 

[15]  (1990) 171 CLR 538. 

[16]  (1996) 185 CLR 571.

[17]  (2002) 210 CLR 491.

[18] Henry v Henry (1996) 185 CLR 571 at 586-7.

[19]  Affidavit of Henderson (CFI 15), [6].

[20]  Conditional notice of intention to defend (CFI 2).

[21]  See cl 3.5 of the PPD.

[22]  Mines and Minerals Act 1990 (SI); Land and Titles Act 1996 (SI); Limitation Act 1984 (SI).

[23]  See clauses 26.1-26.2 of the PPD.

[24]  [2021] QSC 17.

[25]  See Zabusky v Virgtel Ltd, in particular, at [1], [3]-[5], [6]-[10] and [13]-[16].

[26]  Relying upon Regie at 503-4 [24]. 

[27]  See affidavit of Zhu (CFI 10) at ex pp. 51 and 109.

Close

Editorial Notes

  • Published Case Name:

    Gold Ridge Mining Limited v AIG Australia Limited

  • Shortened Case Name:

    Gold Ridge Mining Ltd v AIG Australia Ltd

  • MNC:

    [2024] QSC 217

  • Court:

    QSC

  • Judge(s):

    Hindman J

  • Date:

    13 Sep 2024

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Central Petroleum Limited v Geoscience Resource Recovery Ltd [2018] 2 Qd R 171
2 citations
Jump To
Cite 1 - [2018] 2 Qd R 171
Cite 2 - [2018] 2 Qd R 171
Henry v Henry (1996) 185 CLR 571
3 citations
Jump To
Cite 1 - (1996) 185 CLR 571
Cite 2 - (1996) 185 CLR 571
Cite 3 - (1996) 185 CLR 571
Henry v Henry [1996] HCA 51
1 citation
Jump To
Cite 1 - [1996] HCA 51
Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197
2 citations
Jump To
Cite 1 - (1988) 165 CLR 197
Cite 2 - (1988) 165 CLR 197
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 2) (1998) 72 ALJR 869 [1998] HCA 32
1 citation
Jump To
Cite 1 - [1998] HCA 32
Regie National des Usines Renault SA v Zhang (2002) 210 CLR 491
2 citations
Jump To
Cite 1 - (2002) 210 CLR 491
Cite 2 - (2002) 210 CLR 491
Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10
1 citation
Jump To
Cite 1 - [2002] HCA 10
Safran v Chani [1970] 1 NSWLR 70
2 citations
Jump To
Cite 1 - [1970] 1 NSWLR 70
Cite 2 - [1970] 1 NSWLR 70
Spiliada Maritime Corporation v Cansulex Ltd (1987) AC 460
2 citations
Jump To
Cite 1 - (1987) AC 460
Cite 2 - (1987) AC 460
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
2 citations
Jump To
Cite 1 - (1990) 171 CLR 538
Cite 2 - (1990) 171 CLR 538
Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55
1 citation
Jump To
Cite 1 - [1990] HCA 55
Zabusky v Virgtel Ltd [2021] QSC 17
2 citations
Jump To
Cite 1 - [2021] QSC 17
Cite 2 - [2021] QSC 17

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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