Clive Frederick Palmer and the State of Western Australia

[2021] HCATrans 2

[2021] HCATrans 002

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B52 of 2020

B e t w e e n -

CLIVE FREDERICK PALMER

Plaintiff

and

THE STATE OF WESTERN AUSTRALIA

Defendant

Office of the Registry
  Brisbane  No B54 of 2020

B e t w e e n -

MINERALOGY PTY LTD

First Plaintiff

INTERNATIONAL MINERALS PTY LTD

Second Plaintiff

and

STATE OF WESTERN AUSTRALIA

Defendant

KIEFEL CJ

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 29 JANUARY 2021, AT 11.00 AM

Copyright in the High Court of Australia

____________________

HER HONOUR:   I will indicate the appearances.

MR C.F. PALMER appears in person.

MR D.F. JACKSON, QC with MR M.A. KARAM appears for the plaintiffs in B54/2020.  (instructed by Jonathan Shaw)

MR J.A. THOMSON, SC, Solicitor‑General for the State of Western Australia and MS J.E. SHAW appear for the defendant in both matters.  (instructed by State Solicitor’s Office (WA))

HER HONOUR:   I have received rather at the last moment the correspondence and draft special case in the B54 matter from the State Solicitor’s Office.  I have had a chance to skim it, and that is about all.  Shall we start with the B54 matter.

MR JACKSON:   Your Honour, can I indicate that the materials that we have before your Honour I think are the application of 19 January, the affidavit of Mr Jones of the same date, our submissions of 22 January and a very short supplementary submission of 27 January.  I should say, your Honour, in relation to the documents to which your Honour referred a moment ago from the State that we received them yesterday.  The Solicitor‑General and I spoke this morning and I asked that they be placed before your Honour in order to provide us a relatively easy basis on which to deal with the matter, relatively of course.

HER HONOUR:   Yes.

MR JACKSON:   Your Honour, may I proceed with our position.  The Court will see that the parties have not been able to reach agreement on the terms of the special case pursuant to rule 27.08.  I have to say we think it unlikely that they will be able to do so and have thus proposed that there be, in this order of preference, a case stated pursuant to section 18 of the Judiciary Act, or questions reserved pursuant to the same provision.  Your Honour will see that we sought to provide a draft of a case stated – an order for a case stated as annexure H to Mr Jones’ affidavit.  That commences at page 251 of that bundle of material.  Also a draft of questions reserved which is annexure I and commences at page 275.

HER HONOUR:   Yes, I have read the material, Mr Jackson.

MR JACKSON:   Thank you, your Honour.

HER HONOUR:   Is there any dispute amongst the parties that a special case would be the most convenient and, from the Court’s perspective, most helpful means by which the matter proceeds?

MR PALMER:   Yes, your Honour, I dispute that.

HER HONOUR:   I am dealing with B54 for the moment, Mr Palmer, but it is good to have your view about B52 at this point.

MR PALMER:   Yes.

MR JACKSON:   Your Honour, could I just say that the reason why we would propose that the matter be dealt with by case stated is that, as your Honour has seen, there have been versions of a draft from either side.  You will see that apart from trivialities the parts of the special case which we have provided, which are not included in the defendant’s draft, are those in paragraphs 44 and following.  It is the one that has a tracked – those tracked versions through it.

HER HONOUR:   As I understand it, Mr Jackson, the matter in dispute about those paragraphs is whether or not it is appropriate to a special case to identify parts of the legislation which are in dispute and the plaintiffs’ contentions about it.

MR JACKSON:   Could I just say this, your Honour.  If one looks at paragraph 44 of that document, that is one which does seek to summarise the operation of the Act.  We have earlier indicated that we do not regard paragraph 44 as necessarily essential to the case.  But could I just say, in relation to the remainder of it, the provisions of rule 27.08.3 do have to be applied in the context of the type of proceeding before the Court and this is a challenge of course to the validity of an enactment and we would submit that if the proceeding is one of that nature, surely the special case should set out the bases on which the challenges are being made.  If one goes to the draft provided by the State, it seeks to exclude anything along those lines.

HER HONOUR:   True.  It finishes the facts and goes straight to the questions, but the State’s point is that as is most common with special cases the matters arising from the statute which are in issue should appear from the pleadings.

MR JACKSON:   They will appear from the pleadings, your Honour, and no doubt they will be referred to in detail in the written submissions that no doubt will be ordered.  But could I just say in relation to it, if one is looking at it from the point of view, as your Honour will be, of a member of the Court then one comes to the case, sees the statements made initially in relation to the enactment of the Act then comes immediately to questions which say is the Act valid in toto or is it in our particular provisions invalid. 

In our submission, your Honour, a member of the Court coming to it would ask in respect of each of the questions set out at the end of the case stated, why, what is the basis of the challenge.  We would submit that in a case of this type the issue should be apparent from the special case itself.  Your Honour, so that is why we would seek to urge that the matter be dealt with under section 18.

Could I just say finally, your Honour, two things?  The first is that we have not had any response to our proposed form of a draft case stated.  The second is that the orders we would prefer to have are an order for a case stated, the matter be mentioned in perhaps a fortnight to enable any submissions to be made – any further submissions to be made about the terms of such a case, and the matter be listed for – given a date for hearing of a sittings of the Full Court.

HER HONOUR:   I would need to be persuaded that a date should be given when the special case has not been finalised and there is no special case – the special case in B52 is really quite recent and it is not very far progressed at all.  As I have always said these two matters will be heard together, so the progress of B52 has slowed the progress of B54.

MR JACKSON:   Yes, your Honour.  Could I just say that a very great deal of the material before the Court in B52 is effectively the same as that in B54 additional matters.

HER HONOUR:   I will come to B52 shortly, but it seems to me that there are substantial matters raised by Mr Palmer in the pleading in B52 which extend beyond the issues in B54, although I accept that there are common issues and that is a very strong reason why I have always thought they ought to be heard together and not separately.

MR JACKSON:   Your Honour, those are the submissions I want to make.

HER HONOUR:   What do you propose that I do today, though?  You are simply putting the matter over for a day for argument in relation to which version of the special case ‑ ‑ ‑

MR JACKSON:   …..I am sorry, I did not mean to interrupt your Honour.  We would ask your Honour, if I could put it this way, to intimate what the appropriate course would be for there to be a case stated.

HER HONOUR:   Yes, I thought I probably was not proceeding on to a full mediation at this point but giving an indication of what I thought was appropriate.

MR JACKSON:   And that a short time be given to enable there to be a response to that and for any – the terms of the case stated then to be determined and an order made for a case stated and a further mention date – we would say a fortnight ‑ ‑ ‑

HER HONOUR:   Yes.  I will hear from the Solicitor now.  Yes, Mr Solicitor.

MR THOMSON:   Thank you, your Honour. 

HER HONOUR:   We are dealing with B54 at this point.

MR THOMSON:   Yes.  The point of principle is whether the special case or the case stated even should contain the summary of pleaded issues and the summary of statutory provisions.  The difficulty about it from our perspective is that, for example, a summary of the pleaded issues and statutory provisions can merge, and they can add a gloss which may lead to complications about how the case is run later down the track. 

Can I exemplify that by reference to the very paragraph that Mr Jackson took you to, paragraph 44.  I know that he says that he…..on that but it is a good example of some of the difficulties.  If you go to paragraph 44(i)(i) there is a statement there that the amending Act:

provides for the manner in which any Court must handle proceedings to which the Act applies –

I pause there to say that where those words have been inserted, that is the way “in which any court must handle proceedings to which the Act applies”, presupposes that there is a direction to the court about the exercise of its jurisdiction.  Of course, that is a matter that is very much in dispute.  Then there is a statement about:

precluding powers of appeal or review and removing availability of public law remedies and the application of the rules of natural justice regarding any conduct of the State –

Our own position, and it has been pleaded, is that the misapplication of the rules of natural justice only relate to the Balmoral South Iron Ore Project and the proposals which were made in respect of that prior to the commencement of the amending Act.  So in a sense if we have to be put into the position of responding to a summary of the statutory provisions which also includes implicitly the problem of the pleaded issues…..by the plaintiff then we end up reproducing in the special case or in a case stated the material that is already in the pleadings and which ought to be in submissions.  So we thought that the orthodox view was that a case stated ought to be confined to the relevant facts, the other material would be before the Court.  It will either be contained in pleadings or be contained in submissions.

My friend referred to rule 27.08.3 of the High Court Rules.  He says that a special case sets out to state the facts and identify the documents necessary to enable the Court to decide the questions raised.  With respect, we think that supports our position because it says that the special case shall state the facts…..what we say should occur and identify the documents necessary to enable the Court to decide the questions raised.

Now, we will prepare a special case, and agree a special case upon the basis that it ought to include…..  Mr Palmer indicates that that is the…..that ought to occur, but ‑ ‑ ‑

HER HONOUR:   Mr Solicitor, I do not think there are any hard and fast rules about what a special case contains.  If I was persuaded that the content of a special case or a case stated was going to be of assistance to the Court because of the complexity of issues, that would, I think, still be open within the terms of the rule and the intendment of the rule.  But I take it that what you are saying is that the attempt to summarise the rather complex interlinking statutory provisions and the point that is sought to be made about them by each party is seriously at risk, that the process of summation of them is likely to misstate them or not clearly state them for the Justices.  If that is the case what do you propose – simply that the pleadings be annexed to the special case?

MR THOMSON:   Yes.  The added difficulty is that…...may not be clear but may create a further issue that is not pleaded.

HER HONOUR:   I had understood from the submissions that you say that the special case drafted by the plaintiffs does not accurately reflect the pleading and that there are some matters which are not actually pleaded.  Is that your contention?

MR THOMSON:   Yes, again in the sense that I have already given your Honour an example of, but there are other examples I could go through.  The same problem would arise…..the matter is listed for a hearing as to whether there will be a case stated ordered in the particular form that has been proposed by the plaintiffs and then we would make our submissions in respect of that.  So the difficulty that we have identified is an equivalent difficulty both in the case stated procedure as well as in the special case procedure.  Therefore, whichever process is adopted there will be the same problem that arises.

So as I indicated, if your Honour thought that it was appropriate in this case to go down the summation path, then we would do that and go down that path for the purposes of preparing either a special case or a case stated.  But the difficulties are those that we have identified, and we think that that might answer the problems when this comes to be heard ultimately. 

So if your Honour were to indicate the other way today, it may be that the plaintiffs would adopt the alternative approach that we have proposed.  It might mean that it is as simple – that type of indication one way or the other on this occasion without having to go to a special hearing for the purposes of the form of a case stated and of course I think that ‑ ‑ ‑

HER HONOUR:   Mr Solicitor, are these paragraphs from 44 onwards and the summary of the contentions and the statute, is this the only issue – I had understood from your submissions that there is also an issue about some uncontroversial facts which are omitted from the special case.

MR THOMSON:   The trivialities which Mr Jackson has referred to, they, I think, can be sorted out with ease one way or the other.  There are certain matters which are set out in paragraphs 42 through to 50 of the marked‑up version that your Honour has in front of you which relate to certain other proceedings that might or might not be covered by the various provisions of the amending Act.  As I understand it, there is no real issue about the primary fact in relation to each of those proceedings.  So we do not apprehend one way or the other that there should be any real difficulty about those ‑ ‑ ‑

HER HONOUR:   This is a matter that should be readily resolved, really.

MR THOMSON:   That is right.  The real issue, the issue of principle that provides…..as I understand it is really paragraph 44 through to paragraph 98 of the version before your Honour which is the summation of pointed issues in the statutory provisions and then there is one small point that I think could manage to be easily resolved in relation to the questions to be stated and that is if you look at the mark‑up version in paragraph 3 of the questions arising it says – it is a question about severance.  As we understand it there is no issue that it will be a question about severance which arises before the Court and so we have…..that. 

That is a summary of where the differences lie.  I would have thought that in relation to the other proceedings they can be reasonably easily sorted out and in relation to the severance question that should be capable of being sorted out.  In relation to the summation point, that is a point of principle.  We can elevate it to that status that divides the parties in this case.

HER HONOUR:   Do you say, Mr Solicitor, that the plaintiffs’ version of the special case in the respects we have been discussing prejudices Western Australia or is it just that it inaccurately conveys what the parties’ contentions are?

MR THOMSON:   …..what…..because to the extent that the very detailed and careful pleadings have been prepared in one way, if the summation…..different and alternative argument it may be that it does prejudice the State of Western Australia because that alternative argument is…..in circumstances where it is unexpected.

HER HONOUR:   Yes, thank you, Mr Solicitor.  Mr Jackson, why would not the Justices constituting the Court in this matter be able to glean in the usual way the contentions from the pleadings?

MR JACKSON:   Your Honour, no doubt they would, but ‑ ‑ ‑

HER HONOUR:   …..if I might say so are quite – the plaintiffs’ statement of claim in its final form is quite clear.

MR JACKSON:   Thank you, your Honour.  Your Honour, may I, before I respond directly to that, just say something about what my learned friend has said?

HER HONOUR:   Yes.

MR JACKSON:   That is that what has been picked out as having something wrong with it in two, perhaps three, places is at paragraph 44.  We have never had, until today, any comment about any matter that is set out in those paragraphs and it would have been helpful to have had that before.  We have already indicated that we do not regard paragraph 44 as essential, the summary of the Act.  What we do think is desirable is to have before the Court a summary of the various contentions that are advanced.

Now, no doubt, your Honour, the members of the Court can go through the pleadings and go through the submissions and find out exactly what is being said but we would submit a better course would be for them to be able to see the special case or case stated and see what are the issues that have to be decided presented in the core document that will have been before the Court.

HER HONOUR:   As you would be aware, though, Mr Jackson, once one starts summarising reasonably complex and lengthy pleadings, there is always the possibility, particularly…..

MR JACKSON:   …..

HER HONOUR:   I do not know where all this interference is coming from.

MR JACKSON:   Yes.

HER HONOUR:   Papers being moved around, I think.  I was just saying, Mr Jackson, experience tells us that when the parties start summarising pleadings, particularly in a special case where the Court reads what is contained on the basis that the parties are in agreement about what is said there, there is always the possibility that there will be a dispute during the hearing about what the statement of claim conveys and it could be quite distracting.  I am just trying to understand what it is about conveying the issues and the statute and the contentions in this way that is meant to be of such assistance to the Court.

MR JACKSON:   It is a matter for the Court, of course.  We would submit that the Court in dealing with the matter if it has a special case or case stated along the lines that we have suggested is able to say this is one issue – this is the next issue, this is what they say, and this is what the other side says and there we are.  Your Honour, I do not know that I can advance it beyond that.

HER HONOUR:   Yes, thank you, Mr Jackson.  I should hear from the parties in B52 before we go further.  Mr Palmer, there has been no special case put forward for the consideration of the State in your case.

MR PALMER:   Yes, your Honour.  I think my position really is that these proceedings have been on foot now for nearly five months and the State sought to strike out my pleadings and we had that hearing before Justice Nettle where he gave some particular assistance to me in drafting the pleadings and that ‑ ‑ ‑

HER HONOUR:   Mr Palmer, in the end result it took until mid‑January of this year for your pleadings to be finalised.  That has been the cause of delay in this matter.

MR PALMER:   Well, the State has delivered a defence and we find that the State’s defence is full of denials on all the matters that they brought to strike out and they have not really engaged with me on those matters to enable us to have any confidence at all that it would be a proper engagement in relation to a special case.  I know that Mr Jackson – he just said until today he did not have any response in respect of his special case.  So that does not give me any confidence to think that a special case could be agreed easily with the State as I would have expected a full defence.

HER HONOUR:   But, Mr Palmer, the parties in B54 are really telling me today that if I give an indication about what format – what content the special case should extend to that the special case in B54 can be resolved.  So I do not see that there is a very strong basis for your concerns if they are to be drawn from where B54 stands at the moment.

MR PALMER:   I think it is difficult to develop a special case when we consider that there is no engagement at all in their defence, their denials that I have to deal with to properly deal with the case law.

HER HONOUR:   That is actually not so much the nature of a special case which has as its minimum the facts and the documents and the questions arising.  As you have heard the argument in relation to B54 is the extent to which matters in the pleadings should be summarised and the contentions drawn out for the Justices in the special case as distinct from the normal course which is for the Justices to derive that from the pleadings and then the written submissions in relation to the pleadings.  But I suspect you might have more difficulty in summarising the contentions.  Would that be right?

MR PALMER:   Well, I would have to attempt it, your Honour.  I have not done that at this stage.  We have just finished considering the State’s defence which you are correct to say did not arrive till late January.

HER HONOUR:   But without legal representation and someone to do it for you, I would think that it is going to be a little difficult for you to

undertake the exercise that the plaintiffs in B54 have done, which is an attempt to summarise the contentions.  Would I be wrong in assuming that?

MR PALMER:   I do not think we should assume that, your Honour.  I do have available resources to assist me and I would not seek any indulgence from the Court or any special favours in that regard just because I am a self‑represented litigant.  I do not think that is appropriate so I would not think it was fair to make that presumption before we resolve to do it.  But I have little confidence of agreeing things with the State because as Justice Nettle said this legislation is unprecedented in nature and it is extraordinary.  We are very concerned about the fact that this attacks the rule of law and this may not be relevant to the question, but this leads me to believe I cannot have confidence with the people who actually drafted the legislation in agreeing a proper special case to be heard by the Court.

HER HONOUR:   Yes.  Is there anything further you wish to say, Mr Palmer?

MR PALMER:   No, your Honour.

HER HONOUR:   Yes, Mr Solicitor.

MR THOMSON:   Our concerns that we have expressed in relation to B54 arise at least as equally in B52 but probably subject to further difficulties it is very difficult to make a submission without there having been a proposed form of a special case or a case stated and, secondly, we adopt what your Honour has said about perhaps there being some difficulties that might arise from Mr Palmer being self‑represented. 

The only thing I would say about that is if you look at the terms of the original pleadings and the way in which they seemed quite outside the normal process that would be adopted with pleading a case of this nature, even now we would suggest that the pleaded allegations are not always up to the same standard as perhaps may have been pleaded by a constitutional law practitioner familiar with the Court’s procedures.

In those circumstances there may be some…..or greater difficulty in agreeing the summation of pleaded issues or statutory provisions.  Mr Palmer has indicated that he does not propose to agree a special case and as I understand it we cannot force him to do that, but the same issues relate to the form of a case stated. 

To the extent that what is suggested is that questions could be reserved without there being a special case or a case stated we have difficulty in understanding how that could be something that would be entertained by the Court because the Court would still need to have a proper

basis for understanding the nature of the questions which arise.  So the two options really seem to be only a special case, or a case stated.

There is a form of a draft case stated which was filed on 27 January, the day our submissions were due, and that has within it the very similar allegations to…..very similar content to the content of…..proposed draft special case in relation to B54 but it also has quite a number of additional things contained within it all addressed to the allegations Mr Palmer raised.

HER HONOUR:   Yes, Mr Palmer, do you have anything you wish to say in response?

MR PALMER:   Yes.  Well, firstly, I did want to say – did want to draw the Court’s attention to there is a case stated that we have drafted that has been put on my affidavit of 27 January.  So that does exist.  It is not hypothetical.  It is before the Court and it is available to the State to consider and it well may be that there is a difference between us, but the State did elect not to bring a strike‑out and provide a defence and I thought that if there had have been anything in what the Solicitor says he would have elected to bring the strike‑out which was his right and he decided not to.

It is difficult to see, having made the decision, he can now go back to attack the pleading in the same way and manner and…..  So I would say that we do have a case stated but we would welcome the opportunity to have that matter tested before a court and I would support B54’s – Mr Jackson’s submission that it should be a case stated and it should not be a…..

HER HONOUR:   Yes, thank you. 

So far as concerns the area of dispute concerning the special case in B54 I am not satisfied that the process engaged in in the plaintiffs’ draft from paragraphs 44 onwards, which sets out parts of the statute and attempts to summarise the contentions of the parties, is the better course to adopt in this matter.  Additionally, I am concerned that we adopt a course which is going to be adaptable to B52.  In that regard I am concerned that the task undertaken in B54 is going to present difficulties for the plaintiff in B52 as the problems encountered with the pleadings have shown. 

For these reasons I consider that it is desirable to maintain the usual course, that for which the State of Western Australia contends, and allow the pleadings and the written submissions to speak for themselves.  In that regard, of course, the written submissions can expand upon the pleadings and explain them in a similar way perhaps to that which was sought to be undertaken in the draft special case.

That is my indication in relation to B54.  I would expect in relation to B52 that the same process be undertaken and that a draft special case be produced by the plaintiffs following that format.

Mr Palmer, how long would it take you to produce a draft special case for consideration of the State of Western Australia?

MR PALMER:   I would think maybe two weeks, your Honour.

HER HONOUR:   I should indicate that if the parties – that might render it a little more difficult – the date that I had in mind for this matter – if the parties could ready themselves.  I had in mind that the matter might be set down in the May sittings of the Court, but that would only be the case if the parties were able to tell me by 26 February that the special cases in both matters had been resolved or there was some agreement, otherwise the matter would obviously not be readied in time.  I do not think that would present a problem for B54, but again it is B52 that seems to be an issue.

MR PALMER:   Your Honour, I think we could probably attempt it in less than two weeks.  I would have thought seven days may have been sufficient and I think we can do it in seven days, your Honour.  I would be content with having that opportunity to try to present it in that period.

HER HONOUR:   How long would it take you to respond, Mr Solicitor?  Could you do that within five days?

MR THOMSON:   Five working days or ‑ ‑ ‑

HER HONOUR:   Yes, I suppose in each case it should be five working days.  That makes it clearer to parties.

MR THOMSON:   Yes.  So if I understand what is proposed at the moment it would be 5 February to receive the special case from Mr Palmer ‑ ‑ ‑

HER HONOUR:   Yes, and 12 February for a response.

MR THOMSON:   I think that that should be possible.

HER HONOUR:   All right.  I will indicate the directions that I think are necessary, but I am open for the parties’ suggestions or corrections.

MR THOMSON:   Can I make one suggestion which might be inserted in each – in relation to what we have just discussed.  We extend the date to the Monday of each following week so that it is 8 February and 15 February because that – although they are not working days it does give a weekend.

MR PALMER:   I do not think that is required, your Honour.

HER HONOUR:   It is a little difficult for me to estimate how much more is going to be involved in the special case with the additional issues, Mr Solicitor.  Is it likely to be a considerably expanded special case in your view, than B54?

MR THOMSON:   I think if we are confined to the factual matters and not some…..it is not.

HER HONOUR:   All right.  In B54, I will direct the parties to confer with a view to settling the special case.  I will set the matter down for further directions on Friday, 26 February and adjourn the application for case stated to that date.  Is there anything further that needs to be said by way of directions in B54, Mr Jackson?

MR JACKSON:   No, your Honour.

HER HONOUR:   In B52, I direct the plaintiff to provide the defendant with a draft special case by Friday, 5 February and direct the defendant to respond to it by Friday, 12 February.  I further direct the parties to confer, if necessary, to resolve any matter in dispute with respect to the special case.  I list the matter for further directions before me on 26 February and adjourn the plaintiff’s application for a case stated to that date.  The time for hearing in relation to both matters on 26 February will be the same time – 11.00 am – unless that is inconvenient to anyone. 

As I have said, if the parties are in a position to tell me that the matter is resolved on the 26th I will give some dates in the May sittings.  If it is not resolved I will set the matter down for hearing of the applications for the case stated.

If there is nothing further I will adjourn the Court.

AT 12.43 PM THE MATTERS WERE ADJOURNED