Richmond v Ora Gold Limited

• Jurisdiction: Australia Federal only
• Judge: COLVIN J
• Judgment Date: 06 February 2020
• Neutral Citation: [2020] FCA 70
• Date: 06 February 2020
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Richmond v Ora Gold Limited [2020] FCA 70

File number:	WAD 234 of 2018
Judge:	COLVIN J
Date of judgment:	6 February 2020
Catchwords:	COSTS - application by respondents for costs of and incidental to applicant's application for leave to amend, costs thrown away by reason of amendments and costs to be paid forthwith - where amendments were substantial re‑pleading of case - whether amendments caused by concealment and deceit - whether unreasonable conduct in bringing application - orders made for applicant to pay costs of and incidental to application for leave to amend and to pay costs thrown away - orders not made for costs to be paid forthwith
Legislation:	Federal Court of Australia Act 1976 (Cth) s 43 Federal Court Rules 2011 (Cth) r 40.13
Cases cited:	Allstate Life Insurance Co v Australia and New Zealand Banking Group Limited (No 13) [1995] FCA 1459 Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Australian Flight Test Services Pty Ltd v Minister of Industry, Science and Technology [1996] FCA 1425 Bagley v Pinebelt Pty Ltd [2000] NSWSC 830 Dale v Clayton Utz (a firm) (No 3) [2013] VSC 593 Donnellan v Public Trustee [No 2] [2010] WASC 214 Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International B.V. (No 5) [2018] FCA 19 Fewin Pty Limited v Prentice [2018] FCA 852 Fiduciary Ltd v Morningstar Research Pty Ltd [2002] NSWSC 432; (2002) 55 NSWLR 1 Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52 Gloucester Shire Council v Fitch Ratings, Inc (No 2) [2017] FCA 248 Hamod v State of New South Wales [2007] NSWSC 707 Harris v Cigna Insurance Australia Limited [1995] FCA 1656; (1995) ATPR 41-445 Huntingdale Village Pty Ltd (recs and mgrs apptd) atf Huntingdale Village Unit Trust v Perpetual Nominees [2013] WASC 352 (S) IFTC Broking Services Limited v Commissioner of Taxation [2010] FCAFC 22 Kazar (Liquidator) v Kargarian; In the matter of Frontier Architects Pty Ltd (in liq) [2011] FCAFC 136; (2011) 197 FCR 113 Lamond (No 2) [2017] FCA 548 Life Airbag Co of Australia Pty Ltd v Life Airbag Co (New Zealand) Ltd [1998] FCA 545 Lynx Engineering Consultants Pty Ltd v The ANI Corporation Ltd (t/as ANI Bradken Rail Transportation Group) (No 3) [2010] FCA 32 Media Ocean Limited v Optus Mobile Pty Limited (No 6) [2009] FCA 1319 Norilya Minerals Pty Ltd v Easterday [2009] WASC 191 Olson v Keefe (No 4) [2019] FCA 691 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Power Infrastructure Pty Ltd v Downer EDI Engineering Power Pty Ltd (No 2) [2010] FCA 1347 Rafferty v Time 2000 West Pty Limited (No 3) [2009] FCA 727 Rosegum Corporation Pty Ltd v Young, in the matter of Rosegum Corporation Pty Ltd (No 2) [2017] FCA 36 Rush v Nationwide News Pty Ltd (No 6) [2018] FCA 1851 Stanley v Layne Christensen Company [2006] WASCA 56 Thunderdome Racetiming and Scoring Pty Ltd v Dorian Industries Pty Ltd (1992) 36 FCR 297 Vasyli v AOL International Pty Ltd [1996] FCA 804
Date of hearing:	31 January 2020
Date of last submissions:	5 February 2020 (Applicant)
Registry:	Western Australia
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Category:	Catchwords
Number of paragraphs:	50
Counsel for the Applicant:	Mr B Michael with Ms K Coleman
Solicitor for the Applicant:	King & Wood Mallesons
Counsel for the First Respondent:	Mr S Penglis SC
Solicitor for the First Respondent:	Herbert Smith Freehills
Counsel for the Second Respondent:	Mr PD Evans with Mr PE Sadler
Solicitor for the Second Respondent:	Quinn Emanuel Urquhart & Sullivan

ORDERS

		WAD 234 of 2018
BETWEEN:	WILLIAM ROBERT RICHMOND Applicant
AND:	ORA GOLD LIMITED (ACN 085 782 994) First Respondent ; SANDFIRE RESOURCES LIMITED (ACN 105 154 185) Second Respondent

JUDGE:	COLVIN J
DATE OF ORDER:	6 FEBRUARY 2020

THE COURT ORDERS THAT:

1. Subject to order 3, the applicant do pay the costs of and incidental to the applicant's application for leave to amend in terms of the further amended statement of claim filed 24 September 2019.

2. The applicant pay the costs thrown away by reason of the amendments to the amended statement of claim dated 12 September 2018.

3. Each party bear its own costs of the hearing on 31 January 2020 concerning appropriate costs orders consequent upon the amendments to the amended statement of claim, including the costs of written submissions and affidavits received on that application.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLVIN J:

1. In May 2018, Mr William Richmond commenced proceedings in this Court against Thundelarra Limited (now named Ora Gold Limited) (Thundelarra) and Sandfire Resources NL (now named Sandfire Resources Limited) (Sandfire). The proceedings concern an area of land known as Red Bore at Doolganna, east of Meekatharra in Western Australia. Mr Richmond was granted a mining lease over Red Bore in November 2009.

2. It appears that in April 2010, Mr Richmond entered into an agreement with Thundelarra which provided for terms upon which Thundelarra could earn a 60% interest in a mining venture on the Red Bore tenement. Under the terms of the agreement, in order to earn the interest, Thundelarra had to discover within two years a resource of a specified kind by exploration on the tenement at its cost.

3. Thereafter, Thundelarra claimed to have discovered a resource of the specified kind. There was a dispute between Thundelarra and Mr Richmond as to whether such a resource had been discovered. In proceedings in the Supreme Court of Western Australia, Thundelarra was successful in its claim that it had discovered the resource and obtained orders requiring the transfer of the 60% interest. Mr Richmond says that to meet the costs order against him in those proceedings he reached an agreement with Thundelarra that required him to sell down his interest in the tenement to Thundelarra. As a result, he now retains only a 10% interest in the venture at Red Bore. However, in 2017, by the exercise of a right of pre‑emption under his agreement with Thundelarra, Mr Richmond secured rights to undertake exploration at Red Bore and, in certain circumstances, to require Thundelarra to transfer a 75% interest in the venture to Mr Richmond. The rights secured by pre‑emption were at a cost to Mr Richmond of $1.5 million plus a commitment to expend a further $1.5 million on exploration at Red Bore.

4. Mr Richmond alleges that Sandfire undertook unlawful exploration on Red Bore that occurred both before and after the mining lease for Red Bore was granted to Mr Richmond. He says that the results of unlawful exploration by Sandfire on the tenement were provided to Thundelarra. He also says that further unlawful exploration was undertaken as part of a trip by two geologists working for Thundelarra. One of those geologists was said to have known of...