Bula Ltd v Tara Mines Ltd (No. 6)

• Jurisdiction: Ireland
• Judge: Morris P.,Hon. Mrs Justice Denham,McGuinness J.
• Judgment Date: 03 July 2000
• Neutral Citation: 2000 WJSC-SC 922,2000 WJSC-SC 925
• Court: Supreme Court
• Docket Number: [S.C. No. 110 of 1997]
• Date: 03 July 2000

BULA LTD(IN RECEIVERSHIP) & ORS v. TARA MINES & ORS

BETWEEN

BULA LIMITED (IN RECEIVERSHIP), BULA HOLDINGS, THOMAS C.ROCHE, THOMAS J. ROCHE, RICHARD WOOD AND MICHAEL WYMES

PLAINTIFFS/APPELLANTS

AND

TARA MINES LIMITED, OUTOKUMPU OY, THOMAS FARRELL, BRENDANHYNES, MICHAEL McCARTHY, SEAN MURRAY, DAVID LIBBY, MURROUGH O'BRIEN,YVONNE SCANNELL, HEIKKI SOLIN, JUHANI TANILA, JOHN TULLY, RISTOVIRRANKOSKI, PERTTI VOUTILAINEN, THE MINISTER FOR ENERGY AND MICHAELO'CONNELL

DEFENDANTS/RESPONDENTS

2000 WJSC-SC 922

Morris, P.

Denham J.

McGuinness J.

Appeal No. 1997/110

THE SUPREME COURT

Synopsis

Practice and Procedure

Practice and procedure; discovery; applicants seeking Order setting aside previous Order and directing the re-hearing of the appeal which was the subject of that order; applicants further seeking Order directing defendants to make discovery of specific documents and further information; whether defendants should produce further documents.

Held: Application refused; reasons for ruling will be addressed in a later judgment.

Bula Ltd. v. Tara Mines Ltd. - High Court: Morris P. - 12/05/2000

The applicants had brought a notice of motion seeking to have an order of the court set aside and directing the hearing of the appeal. In addition the applicants sought certain documents on discovery. The Supreme Court, Morris P delivering judgment, held that the issue of discovery be decided as a preliminary issue. In this regard the court refused the applicants' application. The court would determine the issues relating to waiver and estoppel at a later date. The reasons for the ruling given herein would be given at a later date.

Citations:

MINERALS DEVELOPMENT ACT 1979

1 Ruling of the Court delivered by Morris P.on the 12th day of May 2000

2 This matter comes before the court by way of Notice of Motion dated the3rd June 1999 in which the Applicants seek as a primary relief an Ordersetting aside the Order of this Court dated the 15th January 1999 anddirecting the rehearing of the appeal the subject of that Order andJudgment.

3 In addition the Applicants seek an Order that the Court direct that theDefendants make discovery of specific documents and further informationwhich have been identified at the hearing which they say are necessaryto enable them to make their case.

4 The Court has directed that the issue as to the Plaintiff's entitlementto these documents be considered by the Court as a preliminary issue andthis has been heard over a period of five days.

5 Having considered the submissions made the Court makes the followingruling:

6 (1) The Court refuses the Plaintiff's application for discovery orproduction of any further documents by the Defendants. With regard tothe submission made by Tara to the Minister for Industry and Commercerelating to the Minerals Development Act of 1979the Court has been informed that Tara are agreeable to make thisavailable to the Applicantsand it anticipates that this will be done immediately. A copy of thisdocument should be made available to the Court.

7 (2) The Court has heard legal argument as to the issues of waiverand estopple. It has become clear as legal argument progressed that thisissue is intertwined in the main issues. Consequently, the Court willdetermine these issues in its decision on the motion which is listed forhearing on the 29th May 2000.

8 (3) Nothing in this ruling is to be taken as a finding that theprocedures adopted by the Applicants in these proceedings are correct orappropriate.

9 (4) The reasons for the ruling herein will be addressed in a laterJudgment.

BULA LTD(IN RECEIVERSHIP) & ORS v. TARA MINES & ORS

BETWEEN

BULA LIMITED (IN RECEIVERSHIP), BULA HOLDINGS, THOMAS C.ROCHE, THOMAS J. ROCHE, RICHARD WOOD AND MICHAEL WYMES

PLAINTIFFS/APPELLANTS

AND

TARA MINES LIMITED, OUTOKUMPU OY, THOMAS FARRELL, BRENDANHYNES, MICHAEL McCARTHY, SEAN MURRAY, DAVID LIBBY, MURROUGH O'BRIEN,YVONNE SCANNELL, HEIKKI SOLIN, JUHANI TANILA, JOHN TULLY, RISTOVIRRANKOSKI, PERTTI VOUTILAINEN, THE MINISTER FOR ENERGY AND MICHAELO'CONNELL

DEFENDANTS/RESPONDENTS

2000 WJSC-SC 925

Morris,

Denham, J.

McGuinness, J.

Appeal No. 1997/110

THE SUPREME COURT

Synopsis

- [2000] 4 IR 412

Citations:

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(1)

UNITED NATIONS UNIVERSAL DECLARATION OF HUMAN RIGHTS 1948 ART 14.1

WOODS, IN RE 1970 IR 154

TARA EXPLORATION & DEVELOPMENT CO LTD V MIN FOR ENERGY 1975 IR 242

ROCHE V MIN FOR INDUSTRY 1978 IR 149

MINERALS DEVELOPMENT ACT 1940 S14

MINERALS DEVELOPMENT ACT 1979

HALPIN V TARA MINES LTD 1977 ILRM 28

CONSTITUTION ART 34.4.6

BELVILLE HOLDINGS LTD V REVENUE COMMISSIONERS 1994 1 ILRM 29

SOCIETY FOR THE PROTECTION OF UNBORN CHILDREN (SPUC), AG V OPEN DOOR COUNSELLING LTD & DUBLIN WELL WOMAN CENTRE LTD (NO 2) 1994 2 IR 333

GREENDALE DEVELOPMENTS LTD, IN RE; FAGAN V MCQUAID UNREP SUPREME 9.12.1999

CONSTITUTION ART 40.3

R V BOW STREET METROPOLITAN STIPENDARY MAGISTRATE EX PARTE PINOCHET UGARTE (NO 2) 1999 2 WLR 272, 1999 1 AER 577

R V GOUGH 1993 AC 646

R V SUSSEX JUSTICES EX PARTE MCCARTHY 1924 1 KB 256

O'NEILL V BEAUMONT HOSPITAL BOARD 1990 ILRM 419

DUBLIN WELL WOMAN CENTRE LTD V IRELAND 1995 1 ILRM 408

BANE V GARDA REPRESENTATIVE ASSOC 1997 2 IR 449

CARROLL V LAW SOCIETY & AG 2000 1 ILRM 161

WEBB V R 1993–1994 181 CLR 41

R V WATSON EX PARTE ARMSTRONG 1976 136 CLR 248

LAWS V AUSTRALIAN BROADCASTING TRIBUNAL 1990 170 CLR 70

PRESIDENT OF REPUBLIC OF SOUTH AFRICA V SOUTH AFRICAN RUGBY FOOTBALL UNION 1999 7 BCLR 725, 1999 4 SA 147

LIVESEY V NEW SOUTH WALES BAR ASSOC 1983 151 CLR 288

AUSSIE AIRLINES PTY LTD V AUSTRALIAN AIRLINES PTY LTD 1996 135 ALR 753

VAKAUTA V KELLY 1989 167 CLR 568

POLITES, IN RE EX PARTE HOYTS CORPORATION PTY LTD 1991 173 CLR 78, 1994 68 ALJR 182

CONSTITUTION ART 34.5.1

CRINDLE INVESTMENTS & ROCHE V WYMES & ORS 1998 2 ILRM 275

BULA LTD V TARA MINES LTD UNREP SUPREME 15.1.1999

MINERALS ACQUISITION (NEVINSTOWN & OTHER TOWNLANDS CO MEATH) ORDER 1971

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963

BULA LTD V TARA MINES UNREP SUPREME 12.5.2000

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976

PHIPSON ON EVIDENCE PARA 20–12

L, IN RE 1997 AC 16

SMURFIT PARIBAS BANK V AAB EXPORT FINANCE LTD 1990 1 IR 469

MURPHY V KIRWAN 1993 3 IR 501 1994 1 ILRM 293

BULA LTD V CROWLEY (NO 2) 1994 2 IR 54

ANDERSON V BANK OF BRITISH COLUMBIA 1876 2 CH D 644

MINTER V PRIEST 1929 1 KB 655

GREENOUGH V GASKELL 1883 1 MY & K 98

CONSTITUTION ART 40.3.1

HAUGHEY, IN RE 1971 IR 217

QUINN, STATE V RYAN 1965 IR 70

G (D) V EASTERN HEALTH BOARD 1997 3 IR 511

B (D) V MIN FOR JUSTICE 1999 1 IR 29

MCG (G) V W (G) & R (A) UNREP SUPREME 31.3.2000

AMPTHILL PEERAGE CASE 1977 AC 547

MCGEE V AG 1974 IR 284

CONSTITUTION ART 34

METROPOLITAN PROPERTIES LTD V LANNON 1969 1 QB 59

HAMAN V BRADFORD CORPORATION 1970 2 AER 690

DUBLIN & COUNTY BROADCASTING LTD V INDEPENDENT RADIO & TELEVISION COMMISION (IRTC) UNREP MURPHY EX-TEMP 12.5.1989

O'REILLY V CASSIDY 1995 1 ILRM 309

RADIO LIMERICK ONE LTD V INDEPENDENT RADIO & TELEVISION COMMISSION (IRTC) 1997 2 IR 291, 1997 2 ILRM 1

ORANGE COMMUNICATIONS LTD V DIRECTOR OF TELECOMMUNICATIONS REGULATION UNREP SUPREME 18.5.2000

LOCABAIL (UK) LTD V BAYFIELD PROPERTIES LTD 2000 1 AER 65

CORRIGAN V IRISH LAND COMMISSION 1977 IR 317

SPENCER BOWER ON ESTOPPEL BY MISREPRESENTATION 2ED PARA 308

COLLIE, IN RE EX PARTE ADAMSON 1878 8 CH D 807

NORTHERN BANK V HENRY 1981 IR 1

GAHAN V BOLAND UNREP SUPREME 20.1.1984 1984/2/453

SOMERS V W 1979 IR 94

UNITED AUSTRALIA LTD V BARCLAYS BANK LTD 1940 4 AER 20

GOKTAS V GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES 1993 31 NSWLR 684

JRL, IN RE EX PARTE CJL 1986 161 CLR 342

S & M MOTOR REPAIRS V CALTEX 1988 12 NSWLR 358

DOVADE PTY LTD V WESTPAC BANKING GROUP 1999 NSWCA 113

1 Judgment of The Hon. Mrs Justice Denhamdelivered on the 3rd day of July, 2000.

2 This is an application by way of notice of motion on behalf of BulaLimited (In Receivership), Bula Holdings, Richard Wood and MichaelWymes, the plaintiffs/appellants, hereinafter referred to as theapplicants. The applicants seek an order setting aside the judgment andorder of the Supreme Court dated 15th January, 1999 and directing therehearing of the appeal the subject of that order and judgment. Theapplication is grounded on affidavits. It is submitted that two of thejudges who heard and determined the appeal (Barrington J. and Keane J.,as he then was,) had links with the respondents which were of such acharacter as to give rise to a perception of bias.

1. Applicants' case on the facts

3 Mr. Michael Peart, solicitor, appeared on behalf of the applicants. Hesubmitted that the links, connections and prior professionalinvolvements of Barrington J. and Keane J. with the respondents, theissues, the facts and subject matter of the proceedings and the appeal,were such as to give rise to the appearance of a lack of neutrality, theappearance or reasonable apprehension of bias, or objective bias, and tocreate a legitimate doubt as to impartiality such as is expressed incases brought under Article 6(1) of the Convention on Human Rights andFundamental Freedoms. It was submitted on behalf of the applicants thatthe following facts (singularly and collectively) ground and constituteobjective bias:

4 1. Mr. D. Barrington S.C. actually acting for the Minister in theTara Exploration Proceedings, together with the relationship between andrelevance of issues and subject matter in the said proceedings to thefactual matrix of clause (f) of the Lease and Articles 8.02 and 8.08 ofthe Inter-Party Agreement, which were live and kernel issues, in theAppeal.

5 2. Mr. Barrington S.C. actually acting for the Minister in the RocheProceedings, together with the relationship between and relevance ofissues and subject matter in the said proceedings to Bula's origins/thehistorical animus, single ownership and physical development of theNavan orebody, and efficiency...