Coal Management Operations & Processing Pty Limited v Resource Pacific Limited [2009] NSWSC 573

Coal Management Operations & Processing Pty Limited v Resource Pacific Limited [2009] NSWSC 573

Resource Pacific established a reasonable basis to obtain the proposed expert reports in their refined form because the coal preparation report could be essential to causation and loss, and evidence of standard industry practice concerning due diligence could be relevant and of potential assistance in deciding whether the directors acted with due care, skill and diligence. The Court therefore permitted Resource Pacific to obtain and serve the reports, while reserving until a later directions hearing whether evidence in those reports should be admitted.

Jurisdiction
Australia
Judgment Date
22 May 2009
Procedural Posture
Commercial List Proceedings; Application for Expert Evidence Directions / Ex Tempore Ruling on Resource Pacific Ltd's Application for Directions Pursuant to Ucpr, R 31.19 and 31.20 in Connection With the Use of Expert Evidence
Outcome
Resource Pacific Ltd was permitted to obtain and serve two expert reports by 17 July 2009; the question whether it may adduce evidence in those reports was adjourned for later determination; costs of the application were costs in the proceedings.
Legal Topics
['expert Evidence' 'directions for Expert Reports' "directors' Duties" 'coal Preparation Processes' 'due Diligence Practices in the Coal Industry']
['evidence' 'civil Procedure' 'corporations'] ['expert Evidence' 'directions for Expert Reports' "directors' Duties" 'coal Preparation Processes' 'due Diligence Practices in the Coal Industry']

Case Brief

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Procedural Posture

Commercial List Proceedings; Application for Expert Evidence Directions / Ex Tempore Ruling on Resource Pacific Ltd's Application for Directions Pursuant to Ucpr, R 31.19 and 31.20 in Connection With the Use of Expert Evidence

Legal Issues

  1. 1 ['Whether Resource Pacific should be permitted to obtain an expert report from a person with expertise in coal preparation processes about what an independent expert would have advised the board in or about December 2007.' 'Whether Resource Pacific should be permitted to obtain expert evidence about whether there was any standard practice in the coal mining industry concerning due diligence inquiries, procedures and processes for transactions of the kind in issue.' 'Whether the possible absence of an identified expert, relevant practice, or specialised body of knowledge justified refusing the proposed expert evidence at this stage.' 'Whether the Court should determine immediately whether any expert evidence may be adduced or defer that question until reports are obtained and served.']

Ratio Decidendi

Resource Pacific established a reasonable basis to obtain the proposed expert reports in their refined form because the coal preparation report could be essential to causation and loss, and evidence of standard industry practice concerning due diligence could be relevant and of potential assistance in deciding whether the directors acted with due care, skill and diligence. The Court therefore permitted Resource Pacific to obtain and serve the reports, while reserving until a later directions hearing whether evidence in those reports should be admitted.

Court Disposition

Resource Pacific Ltd was permitted to obtain and serve two expert reports by 17 July 2009; the question whether it may adduce evidence in those reports was adjourned for later determination; costs of the application were costs in the proceedings.

Orders

  • ['By 17 July 2009 the cross-claimant may serve a report of an expert with expertise in coal preparation processes as to what that expert would have advised if requested to provide an independent expert report to the Board of Resource Pacific Limited in or about December 2007 in connection with the "process...