Agipcoal Australia Pty Ltd v Idemitsu Queensland Pty Ltd & Ors [1992] QSC 88

T~\JSCRlPT OF PROCEEDINGS St.ate R ep::!rting Bureau , 4th Floor, The Law Courts, George Street, BRJSBANE. 0. 400Q Tel. (07) 227.4360 (Copyright in this transcript is vested in the Cro'fVIl. Copies thereof must not be made or sold ~·ithout the wrinen authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION RYAN J No 1139 of 1990 AGIPCOAL AUSTRALIA PTY LTD Plaintiff and IDEMITSU QUEENSLAND PTY LTD First Defendant and BLIGH COAL LIMITED Second Defendant and LUCKY-GOLDSTAR INTERNATIONAL (AUSTRALIA) PTY LTD Third Defendant and PACIFIC COAL PTY LTD Fourth Defendant and IDEMITSU KOSAN CO LTD Fifth Defendant BY ORIGINAL ACTION and 1 . ~~ . ~·· ...... ? -- 1 of 14 -- 10 20 IDEMITSU QUEENSLAND PTY LTD and BLIGH COAL LIMITED Plaintiff by Counterclaim and LUCKY-GOLDSTAR INTERNATIONAL (AUSTRALIA) PTY LTD Second Plaintiff and ENTE NAZIONALE IDROCARBURI and AGIPCOAL SpA and AGIPCOAL AUSTRALIA PTY LTD AND BETWEEN No 1392 of 1990 by Counterclaim First Defendantby Counterclaim Second Defendantby Counterclaim Third Defendantby Counterclaim 30 PACIFIC COAL PTY LTD Plaintiff and IDEMITSU QUEENSLAND PTY LTD First Defendant and BLIGH COAL LIMITED Second Defendant 40 and LUCKY-GOLDSTAR INTERNATIONAL PTY LTD Third Defendant and AGIPCOAL AUSTRALIA PTY LTD Fourth Defendant and 50 IDEMITSU KOSAN CO LTD Fifth Defendant BY ORIGINAL ACTION and IDEMITSU QUEENSL~D PTY LTD & BLIGH COAL LIMITED Plaintiffs by Counterclaim 10 20 30 40 50 60 60 Govt. Pnnter. Old. 2 -- 2 of 14 -- 10 20 CRA LIMITED and PACIFIC COAL LIMITED BRISBANE . . DATE 25/3/92 ORDERS First Defendant by Counterclaim Second Defendant by Counterlai.m THE COURT RESUMED AT 9.33 A.M. NOTE-TAKING CEASED AT THE DIRECTION OF HIS HONOUR NOTE-TAKING RESUMED AT 10.21 A.M. AT THE DIRECTION OF HIS HONOUR 10 20. 30 30 40 50 60 MR MUIR: It could be done simply this way: that t.he undertaking is in terms of that offered by the first defendant by counterclaim in the Pacific Coal action, which is in Exhibit 2. HIS HONOUR: The undertaking by CRA will be given by Agip SpA? MR MUIR: Yes, Your Honour. Your Honour, in the evidence of Mr Engdahl this is quite undisputed. The other side, I might say, haven't put in any affidavit material which raises any suggestion about the creditworthiness of both parties of Agip Coal SpA. Mr Engdahl and the material that is exhibited shows that its net worth is over $450,000,000. It is trading profitably. Idemitsu's position is quite secure. It might be a foreign company, as my learned friend says, but it is a very substantial corporation. Not only is its capacity and willingness to pay demonstrated, but it has taken the serious step on urgent instructions of proffering an undertaking to this Court. Your Honour, in those circustances it is submitted there can be no possible basis for a stay being granted to Idemitsu. NOTE-TAKING CEASED AT 10.23 A.M. AT THE DIRECTION OF HIS HONOUR NOTE-TAKING RESUMED AT 10.29 A.M. AT THE DIRECTION OF HIS HONOUR Govt. Printer. Old. 3 40 50 60 -- 3 of 14 -- 250392 ORDERS MR FRASER: We ask that Your Honour make a direction that my client be permitted to borrow out from the Court all of the exhibits, including the confidential exhibits, notwithstanding orders already rrrade by Your Honour that those exhibits not be opened except by order of the court, for the purpose of my solicitors copying them to prepare in advance for the appeal we have now been told is about to be launched. 10 HIS HONOUR: Is there any objection to that? 20 30 40 so MR SOFRONOFF: No, Your Honour, and we would ask for a similar order. MR MUIR: We would too, Your Honour. HIS HONOUR: I will make an order in those terms then. THE COURT ADJOURNED AT 10.30 A.M. TILL 2.20 P.M. THE COURT RESUMED AT 2.20 P.M. HIS HONOUR: Applications have been made by Idemitsu Queensland Pty Ltd, Bligh Coal Limited, Lucky-Goldstar International Australia Pty Ltd and Idemitsu Kosan Company Limited for orders that the judgment I made on 21 February 1992 be stayed. By that judgment inter alia I gave judgment for Pacific Coal against Idemitsu Queensland, Bligh Coal and Idemitsu Kosan in the sum of $29,500,000 and for Agipcoal Australia Pty Ltd against the same defendants in the sum of $29,500,000. I have been informed that notice of appeal against this judgment will be filed today. By 0 70 r 28 it is provided that an appeal shall not operate as a stay of proceedings unless the Court or a judge so orders. In The Federal Commission of Taxation against Myer Emporium (1986) 160 CLR 220 it was said by Dawson J that: "It is well established by authority that the Govt. Printer, Old. 4 10 30 40 50 60 -- 4 of 14 -- 1250392 ORDERS l discretion which it confers to order a stay ofproceedings is only to be exercised where special circumstances exist which justify departure from the ordinary rule that a successful litigant is entitled to the fruits of his litigation pending the determination of any appeal. Special circumstances justifying a stay will exist where it is necessary to prevent the appeal if successful from being nugatory. Generally that 10 will occur when, because of the respondent's financial state, there is no reasonable prospect of recovering moneys paid pursuant to the judgment at first instance. However, special circumstances are not limited to that situation and will, I think, exist where, for whatever reason, there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed." 20 In relation to the judgment given in favour of Agipcoal Australia it was claimed on behalf of the applicant that there was a serious risk that it would not be able to repay the amount of the judgment if this was ordered to be done by the Court of Appeal. An affidavit by a chartered 10 20 30 30 accountant, Mr Knight, was relied upon to establish this, as indeed it does. This is not contradicted and is indeed supported by an affidavit by Mr Engdahl filed on behalf of Agipcoal Australia Pty Ltd. 40 40 If this material stood alone I would conclude that special circumstances existed which justify the stay as against Agipcoal Australia. However, Agipcoal Australia is a wholly owned subsidiary of Agip SpA, also referred to as Agipcoal Italy, which is a defendant by counterclaim, and 50 50 unconstested material has been put before me which shows that it has abundant resources to enable it to make any refund which may become necessary if an appeal is successful. It has, through its counsel, given an undertaking to repay to Idemitsu Queensland, Bligh Coal and60 60 Govt. Printer, Old. 5 -- 5 of 14 -- rZSU5'::!2 1 I Idemitsu Kosan, such of the judgment moneys paid to Agipcoal Australia as may be ordered to be repaid by the Court of Appeal~ In view of this undertaking I consider that the special circumstances to which I have referred no longer exist. 10 10 In the case of Pacific Coal, an undertaking in the same terms has been made by CRA Limited, which is also a defendant by counterclaim and the holding company of Pacific Coal. In an affidavit by Mr Knight he states his belief 20 20 30 40 50 that Pacific Coal will not have the capacity to promptly repay the amount of $29,500,000 without an injection of funds from an outside source. However, no suggest.ion has been made that CRA is not in a position to honour its undertaking, and in the case of Pacific Coal also I consider that specific circumstances do not exist which will justify a stay. In the case of both plaintiffs, as a consequence of the undertakings by CRA and Agipcoal SpA respectively, it cannot be said that there would be no reasonable probability of getting the moneys paid back if the appeal succeeds. It was submitted further for the applicants that prejudice would be caused to them through having to meet the costs of obtaining, converting into Australian currency and paying the large sums involved. No doubt the conversion would involve some and perhaps considerable outlay, though the precise amount. does not appear unanilliguously from the I I material placed before me. It appears however from a review of,I ! the financial situation of Idemitsu Kosan, which is attached j 30 40 50 to an affidavit which was read in these proceedings, that I :_____j 60 Govt. Pnnter, Old. 6 -- 6 of 14 -- 10 20 250392 ORDERS .Idemitsu Kosan would be capable of paying the total damages awarded immediately from cash reserves. Moreover, it appears from the judgment of the High Court in Commonwealth v. McCormack (1984) 155 CLR 273 at page 276 that if the applicants are successful on the appeal they will be able to recover all moneys paid in satisfying the judgment which is set aside. It was said that: "Restitutio in integrum is the right of every successful appellant,. and that an appellant who has satisfied a judgment for the payment of money is entitled on the reversal of the judgment to repayment of the money paid by him with interest." I refuse the applications and order the applicant to pay the costs of the respondents to be taxed. MR SOFRONOFF: Your Honour, may I see Exhibit 2, the undertaking offered by CRA in its final form? I am not sure whether it was clear during argument beyond doubt that Agip SpA was offering an undertaking in the same terms. Perhaps that could be recorded, there being no document proffered by 10 20 30 Agip. 30 HIS HONOUR: My understanding from my note is that the undertaking is in terms of that offered by CRA in Exhibit 2. That was stated. MR SOFRONOFF: I just wish that recorded, Your Honour, in case it ever becomes important. HIS HONOUR: That will be recorded. That is the position as 40 I understand it. 40 50 60 MR O'DONNELL: Yes, that is what Mr Muir said this morning, Your Honour. HIS HONOUR: Anything further, gentlemen? MR SOFRONOFF: Your Honour, may I uplift tha·t document for the purpose of copying it this afternoon? HIS HONOUR: Yes, you may. MR FRASER: Can I hand up a draft of the order that I sought this morning and seek an order in terms of the draft? HIS HONOUR: This has been seen by everyone, I take it? MR SOFRONOFF: Yes, Your Honour. MR FRASER: That is what my client seeks. Orders were 50 I L ------------------~ Govt. Printer, Old. 7 -- 7 of 14 -- 250392 ORDERS sought by my learned friend and by Mr Muir for the other parties. We are in the process of trying to resolve a draft and may we, if we agree on the draft, have it initialled by counsel and give it to Your Honour's Associate at a later time? HIS HONOUR: Yes. MR FRASER: We need to add some protection in terms of the 10 confidentiality provisions for the parties. 20 30 40 so 60 HIS HONOUR: This is by consent? I take it that is the position. I will make an order in terms of the draft which I will initial. Govt. Printer, Qtd. 8 10 20 30 40 50 60 -- 8 of 14 -- }got & ·~·,J, j TRANSCRIPT OF PROCEEDINGS l/ I ~~· State Reporti.."lg Bureau, 4th F1oor, The Law Courts, George Street, BRJSBA.J'\TE. 0. 4000 Tel. (07) 227.4360 (Copyright in this transcript is vested in the Cro'iVll. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bu..reau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION RYAN J No 1139 of 1990 BETWEEN: AGIPCOAL AUSTRALIA PTY LTD and IDEMITSU QUEENSLAND PTY LTD and BLIGH COAL LIMITED and LUCKY-GOLDSTAR INTERNATIONAL (AUSTRALIA} PTY LTD and PACIFIC COAL PTY LTD and IDEMITSU KOSAN CO LTD BY ORIGINAL ACTION Plaintiff First Defendant Second Defendant Third Defendant Fourth Defendant Fifth Defendant 1 -- 9 of 14 -- ( 10 20 30 40 and : IDEMITSU QUEENSLAND PTY LTD and I BLIGH COAL LIMITED and LUCKY-GOLDSTAR INTERNATIONAL (AUSTRALIA) PTY LTD and ENTE NAZIONALE IDROCARBURI and AGIPCOAL SPA and AGIPCOAL AUSTRALIA PTY LTD BY WAY OF COUNTERCLAIM No 1392 of 1990 BETWEEN: PACIFIC COAL PTY LTD and IDEMITSU QUEENSLAND PTY LTD and BLIGH COAL LIMITED and LUCKY-GOLDSTAR INTERNATIONAL (AUSTRALIA) PTY LTD and so AGIPCOAL AUSTRALIA PTY LTD and IDEMITSU KOSAN CO LTD BY ORIGINAL ACTION BETWEEN: --------=--t' ID_EMITSU _QQE_ENS_LAND ___ P_TY ___ LTD_and ___ _ Gov~ ~· mter, Old 2 Plaintiffs by Counterclaim Second Plaintiff by Counterclaim First Defendant by Counterclaim Second Defendant by Counterclaim Third Defendantby Counterclaim Plaintiff First Defendant Second Defendant Third Defendant Fourth Defendant Fifth Defendant _ _ _..._p_...] ainti££s_by _ __; -- 10 of 14 -- I 1 l 10 BLIGH COAL LIMITED ,and ;CRA LIMITED 1 and PACIFIC COAL PTY LTD I BY WAY OF COUNTERCLAIM i I I BRISBANE •• DATE 6/3/92 Counterclaim First Defendant by Counterclaim Second Defendant by Counterclaim 10 20 20 . JUDGMENT 30 30 40 40 so 50 cc-- ----··-·-----·------ 3 -- 11 of 14 -- JUDGMENT I HIS HONOUR: I have been asked to vary the order I made i1 restraining Idemitsu Queensland, Bligh Coal and Lucky-Goldstar, the defendants, from using certain material without the consent of Pacific Coal and Agipcoal Australia, 10 the plaintiffs. One variation was requested under the slip 10 rule to make the order conform with what I had written in the course of my judgment. A variation was not opposed and I shall make it. 20 Mr Sofronoff QC for the defendant presented submissions that 20 no injunction should have been granted. He argued that if :the injunction remained, provisions should be made for it to i 'be discharged upon the giving of an undertaking by the defendants. He further argued that the terms of the 30 injunction should be varied so as to state more specifically 30 what documents were covered by the injunction and so that I interest would run from the date of termination of the !investigation agreement or from the date of certification by j ithe Registrar. I have set out in my judgment the reasons ~J ' 40 " iwhich led me to conclude that an injunction should be ;granted. If I was wrong, the matter can be corrected on I i :appeal. I do not consider that I should embark again on the i 1 1 consideration of the question whether an injunction should lbe granted. I consider also that it would be apparent from so 1 50 jmy reasons what the reference to the Registrar will cover. :However, in case any problems arise in that respect it seems !to me appropriate to give liberty to apply .. I I 1 I refuse to vary 'the order that interest be payable from the datelI £.0 1when the cost_S_\:l_er.e_ .inc_urre_d_.___ c Gcvt f.'· <'ie:, OiC. 4 -- 12 of 14 -- 060392 JUDGMENT i · The injunction v1as granted to protect the rights of the plaintiffs. It was not! I d f d f d' k 1 !! i intended to prevent the e en an~ rom procee ~ng to ma e iuse of their rights provided that they did not infringe the I I ' ' , f b , ' I 10 : pla~nt~ffs' r~ghts. The process o o ta~n~ng a 1 10 I 'f' . b h R . t k t' I 11 20 30 .10 50 'cert~ ~cat~on y t e eg~strar may a e some ~me. consider therefore that it is appropriate to provide for the possibility, though it might be slight, that the parties are i on terms on which the injunction is to be ·able to agree I !discharged and also for its discharge upon the giving of a !suitable undertaking by the defendants. I do not, however, 'i • ·cons~der that the undertaking they propose is satisfactory. I vary clause 4 in my order to read as follows: "(A) that it be referred to the Registrar to inquire, determine and certify the costs incurred in the production of the reports, records, data studies, opinions and other information produced by or for the joint venture together with interest there on at 12 per cent per annum from the date when the costs were incurred; "(B) that the defendants, Idemitsu Queensland, Bligh Coal and Lucky-Goldstar be restrained from using that material without the consent of Pacific Coal and Agipcoal Australia; "(C) that this injunction be discharged: (i) upon payment to each of Pacific Coal and Agipcoal Australia of 19 per cent of the amount certified by the Registrar; or (ii) upon the filing by Pacific Coal and Agipcoal Australia of a notice agreeing - that it be discharged; or (iii) upon the written undertaking by Idemitsu Queensland, Bligh Coal and Lucky-Goldstar to pay within four days of certification by the Registrar to each of Pacific Coal and Agipcoal Australia 19 per cent of the ___g,_m_o un_t __cer_t if_ied_hy___ the___Reg ist..r..<;.la..L.r_.-"-- 5 I 20 30 40 50 -- 13 of 14 -- ( 10 20 30 -40 50 060392 JUDGMENT I add a further clause 8: "I give liberty to apply on two days notice." I make no order as to costs in respect of the proceedings before me this week. Those are the orders I make. 6 10 20 30 40 50 f{, -- 14 of 14 --