Palmer v CITIC Ltd [No 14] - [2024] WASC 341

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   PALMER -v- CITIC LTD [No 14] [2024] WASC 341
CORAM:   LUNDBERG J
HEARD:   6 AUGUST 2024
DELIVERED          :   18 SEPTEMBER 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 - Discovery applications brought by Mineralogy Parties and the CITIC Parties in both the QNI Proceeding and the Palmer Petroleum Proceeding - Applications brought in context in which extensive discovery orders were made in 2019 in the actions with significant pleading changes since that time

Practice and procedure - Orders sought by Mineralogy Parties requiring the CITIC Parties to give discovery of documents relating to the 'Fulcrum Allegations' and 'Fulcrum Purposes' - Orders resisted on the grounds of proportionality - CITIC Parties maintain that all documents within the categories likely to be subject to claims for legal professional privilege - Assessment to be made as to the forensic benefits to the litigation of making such an order - Whether Court can be satisfied that all privilege claims will be upheld - Distinction between discovery and production processes is artificial - Orders requiring discovery made

Practice and procedure - Orders sought by Mineralogy Parties to discharge extant discovery orders made over 5 years ago - Orders require discovery of documents concerning the financial position of the plaintiff parties - Documents assessed as being relevant - Application to discharge the orders declined - CITIC Parties order for further and better discovery of financial documents upheld

Practice and procedure - Orders sought by CITIC Parties for discovery of numerous additional categories - Orders for discovery made

Legislation:

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

Result:

Orders made on 13 and 18 September 2024 to grant Mineralogy Fulcrum Discovery application as to Fulcrum Categories 4 to 7 in both actions
Orders made on 13 September 2024 to dismiss Mineralogy Discovery Discharge application as to categories Q26, Q42, P28 and P44 in the respective actions
Orders made on 18 September 2024 to require further and better discovery be given by the Mineralogy Parties in accordance with CITIC Further Discovery application as to categories Q26, Q42, P28 and P44 in the respective actions
Orders made on 18 September 2024 to require discovery of various categories in both actions

Category: B

Representation:

CIV 2072 of 2017

Counsel:

First Plaintiff	:	P J Dunning KC, K S Byrne, D J Fawcett & M Karam
Second Plaintiff	:	P J Dunning KC, K S Byrne, D J Fawcett & M Karam
First Defendant	:	S K Dharmananda SC, J D Birch, S B Nadilo & J R C Sippe
Second…

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 341
Decision Date: 18 SEPTEMBER 2024

CaseChat Overview and Summary

The case of Palmer v CITIC Ltd [No 14] involved the Mineralogy Parties, comprising Mineralogy and Palmer, suing the CITIC Parties, comprising CITIC, CGN and CNOOC, in two separate proceedings. The plaintiffs sought orders requiring the defendants to provide discovery of documents relating to the 'Fulcrum Allegations' and 'Fulcrum Purposes', and to discharge certain extant discovery orders. The defendants resisted these applications on the grounds of proportionality and legal professional privilege. The court was required to determine whether the orders sought were justified, and whether the forensic benefits of making such an order outweighed any prejudice to the defendants.

The court found that the distinction between the discovery and production processes was artificial and that the forensic benefits of making the orders outweighed any prejudice to the defendants. The court was satisfied that all privilege claims would be upheld and made orders requiring the defendants to give discovery of the documents. The court also declined to discharge the extant discovery orders, finding that the documents assessed as being relevant. However, the court upheld the defendants' application for further and better discovery of financial documents.

The court also considered the defendants' application for discovery of numerous additional categories of documents. The court found that the forensic benefits of making the orders outweighed any prejudice to the Mineralogy Parties and made orders for discovery accordingly. The court found that the defendants' application for further and better particulars was not necessary as the Mineralogy Parties had already provided sufficient information about the documents they were seeking. The court also found that the Mineralogy Parties' application for a costs order was not justified.

In summary, the court made orders requiring the defendants to give discovery of documents relating to the 'Fulcrum Allegations' and 'Fulcrum Purposes', declined to discharge the extant discovery orders, upheld the defendants' application for further and better discovery of financial documents, and made orders for discovery of numerous additional categories of documents. The court declined to make a costs order.

Orders