This application arose in a long running proceeding in which a coal exploration company (Cherwell Creek) was claiming over AUD 100 million in compensation from BHP-Mitsubishi Alliance (BMA) for alleged loss of opportunity to commercialise a coal resource on an area of land over which the Cherwell Creek previously held an exploration permit.
BMA applied for leave to file and rely upon an amended defence making allegations of fraud against Cherwell Creek based on alleged off-tenement exploration and false reporting. The Court granted leave to BMA to make these amendments, deciding that the amendments were properly pleaded, that BMA had provided an adequate explanation for the timing of the amendments and that any prejudice to Cherwell Creek was not a sufficient reason to refuse leave.
Shane Doyle QC and Stewart Webster (together with Adam Pomerenke QC, Andrew Stumer and Duncan Markwald) appeared for BMA (the respondents), instructed by Allens.
The judgment is published here.