Palmer v CITIC Ltd [No 11] - [2024] WASC 210

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   PALMER -v- CITIC LTD [No 11] [2024] WASC 210
CORAM:   LUNDBERG J
HEARD:   21 MAY 2024
DELIVERED          :   10 JUNE 2024
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

FILE NO/S: CIV 1267 of 2018
BETWEEN: MINERALOGY PTY LTD
Plaintiff
AND
CITIC LTD
First Defendant
SINO IRON PTY LTD
Second Defendant
KOREAN STEEL PTY LTD
Third Defendant

Catchwords:

Practice and procedure - Applications by CITIC Parties for orders to compel discovery of previously ordered discovery categories and for new categories to be ordered - Certain categories conceded - Other categories opposed by Mineralogy Parties on various bases

Practice and procedure - Applications by CITIC Parties for plaintiffs to file a 'discovery audit affidavit' to explain discovery compliance steps which have been undertaken by those parties and their representatives to date including as to sources of documents and the searches undertaken - Delays in attending to discovery obligations - Whether power exists to order such an affidavit

Practice and procedure - Whether present discovery applications should be delayed until pending applications have been heard including applications to discharge discovery categories and pleading challenges - Positive case flow management - Balancing of interests - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA) O 26 r 6, O 26 r 7(3), O 26 r 15, O 26 r 16, O 26 r 16A

Result:

Orders made requiring the plaintiffs to give discovery of documents in certain categories, with the balance of the discovery applications to be held over and heard with pending applications in August 2024

Category: B

Representation:

CIV 2072 of 2017

Counsel:

First Plaintiff	:	Mr P J Dunning KC, Mr M Karam & Mr K S Byrne
Second Plaintiff	:	Mr P J Dunning KC, Mr M Karam & Mr K S Byrne
First Defendant	:	Mr S K Dharmananda SC, Ms S B Nadilo & Mr J D Birch
Second Defendant	:	Mr S K Dharmananda SC, Ms S B Nadilo & Mr J D Birch
Third Defendant	:	Mr S K Dharmananda SC, Ms S B Nadilo & Mr J D Birch

Solicitors:

First Plaintiff	:	Alexander Law
Second Plaintiff	:	Alexander Law
First Defendant	:	Allens
Second Defendant	:	Allens
Third Defendant	:	Allens

CIV 1267 of 2018

Counsel:

Plaintiff	:	Mr P J Dunning KC, Mr M Karam & Mr K S Byrne
First Defendant	:	Mr S K Dharmananda SC, Ms S B Nadilo & Mr J D Birch
Second Defendant	:	Mr S K Dharmananda SC, Ms S B Nadilo & Mr J D Birch
Third Defendant	:	Mr S K Dharmananda SC, Ms S B Nadilo & Mr J D Birch

Solicitors:

Plaintiff	:	Alexander Law
First Defendant	:	Allens
Second Defendant	:	Allens
Third Defendant	:	Allens

Case(s) referred to in…

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: [2024] WASC 210
Decision Date: 10 JUNE 2024

CaseChat Overview and Summary

The case of Palmer v CITIC Ltd [No 11] was heard in the Supreme Court of New South Wales. The dispute revolves around applications by CITIC Parties seeking orders to compel discovery of specific categories of documents and for new categories to be ordered. Certain categories were conceded by the Mineralogy Parties, while others were opposed on various grounds. Additionally, the CITIC Parties sought an order for the plaintiffs to file a 'discovery audit affidavit' to detail the discovery compliance steps taken by them and their representatives, including information on document sources and searches conducted. The Mineralogy Parties argued against this application, citing delays in fulfilling discovery obligations.

The legal issues before the court included whether the CITIC Parties had the power to order a discovery audit affidavit, and if the current discovery applications should be delayed pending the resolution of other applications, such as those seeking to discharge discovery categories and pleading challenges. The court had to consider principles of case flow management and the balancing of interests, as the decision hinged on the unique facts of the case.

In its reasoning, the court held that while there was a power to order a discovery audit affidavit, it should not be exercised in this instance given the circumstances. The court also determined that the present discovery applications should not be delayed until the pending applications were resolved. The court focused on the need for efficient case flow management and weighed the interests of both parties, concluding that the current applications should proceed without further delay.

The final orders included a refusal to compel the filing of a discovery audit affidavit, and a directive for the discovery applications to proceed without further delay. The court's decision underscored the importance of balancing case flow management with the procedural rights of the parties involved.

Orders