NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd

[2020] WASCA 107

Western Australia Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Practice and Procedure
2. › Summary judgment
3. › Refusal of defendant's application for summary judgment
4. › Appeal from interlocutory decision
5. › Leave to appeal
6. › Whether primary judge erred in declining to resolve complex question of contractual construction on summary basis
7. › Whether substantial injustice if decision left unreversed
8. › Rules of the Supreme Court 1971 (WA), O 14 r 6, O 16 r 1, O 20 r 19
1. Practice and Procedure
2. › Summary judgment
3. › Power to determine questions of law on summary application
4. › Whether court may finally determine difficult question of contractual construction on summary judgment application
5. › Anomalous course of allowing appeal from correct refusal of summary judgment
6. › Theseus Exploration NL v Foyster principle
1. Practice and Procedure
2. › Costs
3. › Costs of failed summary judgment application
4. › Whether usual rule that costs be in the cause may be departed from
5. › Case management considerations
6. › Whether applicant had no reasonable prospects of success
1. Contract
2. › Construction
3. › Exclusion clauses and indemnities
4. › Interaction between indemnity clause and exclusion clause in mining services agreement
5. › Whether exclusion of loss of profit overrides indemnity for breach of contract
6. › Meaning of 'including' in exclusion clause
7. › Whether constructional choice appropriate for summary determination

Quick Take

A court hearing an appeal from refusal of a defendant's summary judgment application should be cautious before adopting the 'anomalous course' from Theseus v Foyster of finally determining a question of law where the primary judge has not erred and the appellant has failed to demonstrate substantial injustice. The usual rule that costs of a failed summary judgment application be costs in the cause may be departed from where the applicant ought to have known it had no reasonable prospects of success, particularly having regard to case management principles. The availability of a trial of preliminary issues as an alternative procedural mechanism is relevant to the assessment of substantial injustice on an application for leave to appeal from refusal of summary judgment.