Palmer v CITIC Ltd [No 10] - [2023] WASC 417

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   PALMER -v- CITIC LTD [No 10] [2023] WASC 417
CORAM:   LUNDBERG J
HEARD:   27 SEPTEMBER 2023
DELIVERED          :   2 NOVEMBER 2023
FILE NO/S:   CIV 2072 of 2017
BETWEEN:   CLIVE FREDERICK PALMER
First Plaintiff
MINERALOGY PTY LTD
Second Plaintiff
AND
CITIC LTD
First Defendant
SINO IRON PTY LTD
Second Defendant
KOREAN STEEL PTY LTD
Third Defendant

Catchwords:

Practice and procedure - Further application by Mineralogy Parties to amend the statement of claim in CIV 2072 of 2017 - Contractual indemnity claim under the Fortescue Coordination Deed - Seventh proposed amended statement of claim - Consideration as to whether amendments plead the necessary facts to establish the causal connection required for the contractual indemnity claim - Case management considerations - Leave opposed by CITIC Parties - Whether the Mineralogy Parties should be required to serve lay and expert evidence in unison with the amended pleading - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA) O 1 r 4A and r 4B, O 21 r 5

Result:

Application granted

Category: B

Representation:

Counsel:

First Plaintiff	:	Mr P J Dunning KC, Mr H Cooper and Mr D Fawcett
Second Plaintiff	:	Mr P J Dunning KC, Mr H Cooper and Mr D Fawcett
First Defendant	:	Mr S K Dharmananda SC, Ms S B Nadilo and Mr J R C Sippe
Second Defendant	:	Mr S K Dharmananda SC, Ms S B Nadilo and Mr J R C Sippe
Third Defendant	:	Mr S K Dharmananda SC, Ms S B Nadilo and Mr J R C Sippe

Solicitors:

First Plaintiff	:	Robinson Nielson Legal
Second Plaintiff	:	Robinson Nielson Legal
First Defendant	:	Allens
Second Defendant	:	Allens
Third Defendant	:	Allens

Case(s) referred to in decision(s):

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Attorney‑General of Botswana v Aussie Diamond Products Pty Ltd [No 2] [2009] WASC 301
English v Vantage Holdings Group Pty Ltd [2021] WASCA 47
Hampton Transport Services Pty Ltd v Crushing Services International Pty Ltd [2018] WASC 54
Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 8] [2015] WASC 473
Oztech Pty Ltd v Public Trustee of Queensland (2019) 269 FCR 349; [2019] FCAFC 102
Palmer v CITIC Ltd [No 8] [2023] WASC 221

Table of Contents

A. Introduction and summary

B. Background

C. The Amendment Application

Corporate structure

Narrative as to the actual conduct of Mineralogy and QNI

Narrative as to the hypothetical conduct of Mineralogy

Diminution in the value of the Yabulu Refinery

D. Submissions

Plaintiffs' submissions

Defendants' submissions

E. Relevant principles

F. Disposition

The court's previous analysis

Whether the propose pleading is arguable or embarrassing?

Case management considerations

Alternative proposal

Exercise of the discretion

G. Orders

ATTACHMENT A Extracts of the Proposed 6ASOC

LUNDBERG J:

A. Introduction and summary

This is an application brought by the plaintiffs in CIV 2072 of 2017 for leave to amend their statement…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] WASC 417
Decision Date: 2 NOVEMBER 2023

CaseChat Overview and Summary

Mineralogy Pty Ltd, along with its associated entities, sought leave to amend their statement of claim for the seventh time in the proceedings against CITIC Ltd. The case revolves around a contractual indemnity claim stemming from the Fortescue Coordination Deed. The primary legal issues before the court were whether the proposed amendments adequately pleaded the facts necessary to establish the causal connection required for the indemnity claim and if the Mineralogy Parties should be mandated to serve both lay and expert evidence concurrently with the amended pleading. The CITIC Parties opposed the application, raising concerns about the procedural fairness and case management implications.

The court undertook a detailed analysis of the proposed amendments, scrutinising whether they sufficiently articulated the causal link necessary to substantiate the indemnity claim. The judge acknowledged the complexity of the case and the extensive amendments already made but stressed the importance of clarity and precision in legal pleadings. Regarding the requirement to serve evidence simultaneously with the amended pleading, the court weighed the potential prejudice to the CITIC Parties against the interests of justice and the need for an efficient case management process. Ultimately, the court determined that while the proposed amendments could potentially plead the necessary facts for the indemnity claim, the procedural fairness and case management considerations warranted a cautious approach.

The court found that the Mineralogy Parties should not be compelled to serve their evidence simultaneously with the amended pleading. This decision was based on the principle of procedural fairness, ensuring that the CITIC Parties had adequate time to respond to the new allegations and evidence. The court granted leave for the seventh amendment to the statement of claim, subject to specific conditions designed to manage the case efficiently and fairly. The Mineralogy Parties were directed to provide a clear and concise version of the amended statement of claim, ensuring that it adequately pleaded the necessary facts for the indemnity claim. This ruling aimed to balance the procedural rights of both parties while facilitating a just resolution of the dispute.

Orders