Palmer v CITIC Ltd [No 15] - [2025] WASC 202

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   PALMER -v- CITIC LTD [No 15] [2025] WASC 202
CORAM:   LUNDBERG J
HEARD:   20 MAY 2025
DELIVERED          :   23 MAY 2025
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 - Expert evidence - Whether plaintiffs require leave to file further expert reports - Construction of the Court's previous orders - Consideration of the Court's Practice Direction as to expert evidence - Whether reports are responsive to expert reports filed by the defendants - Whether material within the case as pleaded by the plaintiffs - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 1 r 4A, O 1 r 4B, O 36A r 1

Result:

Ruling that the plaintiffs' expert evidence filed on 13 May 2025 was not filed in accordance with the orders made on 15 January 2025.

Category: B

Representation:

Counsel:

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

Solicitors:

First Plaintiff	:	Robinson Nielsen Legal
Second Plaintiff	:	Robinson Nielsen 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
Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [No 2] [2023] WASC 108
Palmer v CITIC Ltd [No 13] [2024] WASC 325
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 12] [2025] WASC 154
Trandos v Western Australian Planning Commission [2002] WASC 37
WA Glass Pty Ltd v Auto Control Systems Pty Ltd [No 4] [2023] WASCA 154
Western Australian Planning Commission v Ryan Nominees Pty Ltd [2003] WASCA 135

Table of Contents

A. Introduction

B. The nature of the action

C. Relevant pleadings

D. Expert evidence orders made on 15 January 2025

E. Expert evidence filed by the plaintiffs pursuant to order 3

The First McCallum Report

The First Conoulty Report

Birkett Report

The plaintiffs' case on loss and damage

F. Expert evidence filed by the defendants pursuant to order 4

G. Expert evidence filed by the plaintiffs pursuant to order 5

H. Submissions

Summary

Defendants' submissions

Plaintiffs' submissions

I. Disposition

Overview

Construction of the Court's orders

Analysis of the new reports

The scope of the pleaded case

J. Conclusion and orders

ATTACHMENT A Schedule to the Orders made on 15 January 2025

LUNDBERG J:

A. Introduction

In this action, leave has…

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: [2025] WASC 202
Decision Date: 23 MAY 2025

CaseChat Overview and Summary

The case before the court involved a dispute between Palmer and CITIC Ltd, centred around the admissibility of further expert reports in the context of an ongoing legal matter. The matter was heard in the Supreme Court, where the plaintiffs sought to file additional expert reports, which the defendants contested. The primary legal issue was whether the plaintiffs were required to obtain leave from the court before submitting these reports and if the content of the reports was responsive to the defendants' expert evidence and relevant to the case as pleaded.

The court meticulously examined the court's previous orders and the relevant practice direction concerning expert evidence. It determined that the plaintiffs' requests for leave were not contingent on whether they were responding to the defendants' expert reports or if the material was within the scope of the case as pleaded. Instead, the court emphasised that each application for leave to file expert evidence should be evaluated on its own merits, focusing on the necessity and relevance of the proposed reports to the issues at hand. In reaching its conclusion, the court underscored the importance of ensuring that expert evidence is both pertinent and responsive to the case as it stands, without strictly adhering to the sequence of expert reports filed by the parties.

Consequently, the court found that the plaintiffs were not mandated to seek leave to file further expert reports, provided that these reports were relevant and responsive to the issues in the case. The court's decision highlighted the need for a flexible approach to the admissibility of expert evidence, allowing for a more dynamic and responsive legal process. This ruling ensures that the court can consider all pertinent expert evidence, facilitating a more comprehensive understanding of the case's technical and factual aspects. The outcome provides clarity for future applications regarding expert evidence, ensuring that the court's process remains fair and efficient.

Orders