Bula Ltd v Tara Mines Ltd (No 1)

CourtHigh Court
Judgment Date01 January 1988
Docket Number[1986 No. 10898P]
Date01 January 1988
Bula Ltd. v. Tara Mines Ltd. (No. 1)
Bula Limited (In Receivership), Bula Holdings, Thomas C. Roche, Thomas J. Roche, Richard Wood and Michael Wymes, Plaintiffs
Tara Mines Limited and Others and the Minister for Energy (No. 1) Defendants
[1986 No. 10898P]

High Court

Practice - Procedure - Order of inspection - Whether litigant's right to inspection dependent on the strength of his cause of action - Rules of the Superior Court, 1986, (S.I. No. 15), Or. 50, r. 4.

The right of a litigant to seek and obtain an order of inspection is in no way dependent upon the court being satisfied as to the strength of his cause of action.

So held by Murphy J.

Cooper v. Ince Hall Co. [1876] W.N. 24; Bennitt v. Whitehouse (1860) 28 Beav. 119;Montana Company v. St. Louis Mining and Milling Company (1894) 152 U.S. 160;Campus Oil Ltd. v. Minister for Industry and Energy [1983] I.L.R.M. 258 and Campus Oil Ltd. v. Minister for Industry (No. 2)[1983] I.R. 88, considered.

Cases mentioned in this report:—

Cooper v. Ince Hall Co. [1876] W.N. 24.

Bennitt v. Whitehouse (1860) 28 Beav. 119.

Montana Company v. St. Louis Mining and Milling Company (1894) 152 U.S. 160.

Campus Oil Ltd. v. Minister for Industry and Energy [1983] I.L.R.M. 258.

Campus Oil Ltd. v. Minister for Industry (No. 2) [1983] I.R. 88; [1984] I.L.R.M. 45.

Plenary Summons.

The plaintiffs issued on the 17th November, 1986, a plenary summons against the defendants seeking various reliefs including (as against the first defendant only) damages for trespass. The precise allegation of trespass being made by the plaintiffs will be found set out in the judgment of Murphy J., infra, together with the other facts material to this report.

By notice of motion dated the 11th December, 1986, the plaintiffs applied for an order of inspection in the following terms:—

"An order directing the first-named defendant to allow the plaintiffs to carry out an inspection of the mining activities being carried on or which have been carried on by the first-named defendant on and under its property in the townlands of Knockumber and Whistlemount in the County of Meath or in any adjacent townland and for that purpose authorising the plaintiffs, their servants or agents to enter upon and into the said property and mines and any extensions thereof whether within the confines of the said townlands or otherwise and to take any such samples and make any observations or experiments, measurements or surveys with all necessary co-operation of the first-named defendant for the purpose of enabling the plaintiffs to ascertain and confirm the following matters namely:—

(a) Whether or not the first-named defendant has carried out any mining operations which constitute a trespass onto or under the first-named plaintiff's lands and the situation, nature and extent of such trespass.

(b) Whether the first-named defendant has carried out any mining operations which have resulted in the extraction of any mineral ore from under the first-named plaintiff's land and the quantity of any such ore as may have been extracted.

(c) Whether or not the mining operations conducted by the first-named defendant have been carried out in such a manner so that the pillars required for safety purposes between the State minerals demised to the first-named defendant in the said townlands and the minerals in the contiguous townland of Nevinstown the property of the first-named plaintiff have been shared and will be shared equally as provided for in clause D of a certain indenture of lease dated the 19th December, 1975, and made between the predecessor in title of the last named defendant of the first part, the Minister for Finance of the second part, and the first-named defendant of the third part and an agreement between the predecessor in title of the last named defendant and the plaintiffs with regard to the equal sharing of the said pillars."

The proceedings referred to by Murphy J. in his judgment, post, in which an application was made to his lordship for liberty as against the receiver who had been appointed by certain banks over the assets of the first plaintiff to inspect the first plaintiff's orebody by diamond drilling are Bula Limited and others v. Laurence Crowley and others [1986 No. 6624P]judgment on which application was given on the same day as that in the instant application.

Order 50, r. 4 of the Rules of the Superior Courts, 1986, provides:—

"The Court, upon the application of any party to a cause or matter, and upon such terms as may be just, may make any order for the detention, preservation, or inspection of any property or thing, being the subject of such cause or matter, or as to which any question may arise therein, and for all or any of the purposes aforesaid may authorise any person to enter upon or into any land or building in the possession of any party to such cause or matter and for all or any of the purposes aforesaid may authorise any samples to be taken or any observations to be made or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence."

The plaintiffs' motion was heard by Murphy J. on the 11th, 12th and 17th February, 1987. The fourteenth defendant to these proceedings, the Minister for Energy, was not concerned with this particular application.

Cur. adv. vult.

Murphy J.

In this case claims have been made on behalf of the plaintiffs which are extremely serious and would appear to be extraordinarily improbable. It is claimed that Tara Mines Limited (Tara) have been trespassing upon the orebody of Bula Limited (Bula), abstracting ore from that body and selling it as their own and that this action is continuing and has taken place since the early 1970s. In other words the plaintiffs are alleging fraud and larceny by Tara.

Having regard to the fact that this is an interlocutory application in which the conflicting contentions of the parties will not be resolved I think that it is proper with a view to avoiding misunderstandings or injustice to set against these serious allegations the unequivocal denial thereof expressed by Brendan Hynes the chief executive of Tara, who in an affidavit sworn by him herein on the 23rd January, 1987, at para. 10 said as follows:—

"I finally say and believe, that...

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