Palmer v CITIC Ltd [No 16] - [2025] WASC 216

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   PALMER -v- CITIC LTD [No 16] [2025] WASC 216
CORAM:   LUNDBERG J
HEARD:   24 APRIL 2025, 5, 26 & 29 MAY 2025
DELIVERED          :   2 JUNE 2025
PUBLISHED           :   3 JUNE 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:

Evidence - Admissibility of expert reports as to loss and damage for the purposes of trial - Turns on own facts

Evidence - Plaintiffs' expert reports - Expert report prepared for prior court proceedings in Supreme Court of Queensland - Report sought to be tendered as a 'business record' pursuant to s 79C(2a) of the Evidence Act 1906 (WA) - Author of report not being called at trial - Whether Court should otherwise order that author be called as condition - Whether tender of report should be rejected on discretionary grounds

Evidence - Plaintiffs' expert reports - Objection on basis that multiple expert reports filed within a single field of expertise contrary to directions of the Court - Whether duplicative expert evidence - Whether report inadmissible as being wholly reliant on another expert report

Evidence - Defendants' expert reports - Whether summaries of evidence permissible - Consideration of Potts v Miller - Whether the matters raised in report are beyond the pleaded case

Legislation:

Evidence Act 1906 (WA), s 79B, s 79C
Rules of the Supreme Court 1971 (WA), O 20 r 9(1)

Result:

Objection to tender of the expert report of Mr Campbell Jaski upheld.
Objection to tender of the expert report of Mr Scott Birkett upheld.
Objection to tender of the expert report of Mr Greg Meredith titled Conceptual Loss upheld.
Various other rulings given in Attachments A and B to the reasons.

Category: B

Representation:

Counsel:

First Plaintiff	:	P J Dunning KC, M A Karam, H Cooper, D Fawcett & M Stone
Second Plaintiff	:	P J Dunning KC, M A Karam, H Cooper, D Fawcett & 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 Nielson Legal
Second Plaintiff	:	Robinson Nielson Legal
First Defendant	:	Allens
Second Defendant	:	Allens
Third Defendant	:	Allens

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

1110 Hay Pty Ltd as trustee for the Hay Street Trust v Metso Minerals (Australia) Ltd [No 4] [2019] WASC 146
Agricultural Land Management Ltd v Jackson [2013] WASC 464
Automasters Australia Pty Ltd v Bruness Pty Ltd [2004] WASCA 229
BrisConnections Finance Pty Ltd v Arup Pty Ltd [2017] FCA 1268; (2017) 252 FCR 450
Castel Electronics Pty Ltd v Toshiba Singapore Pte Ltd…

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.

Keep reading for free

Create a free CaseChat account to read Palmer v CITIC Ltd [No 16] and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] WASC 216
Decision Date: 3 JUNE 2025

CaseChat Overview and Summary

In Palmer v CITIC Ltd [No 16], the plaintiff sought to admit expert reports into evidence at trial, raising significant issues around the admissibility of expert evidence under the Evidence Act 1906 (WA). The case was heard in the Supreme Court of Western Australia, where the plaintiffs aimed to rely on expert reports prepared for prior court proceedings in the Supreme Court of Queensland. The defendants contested the admissibility of these reports on several grounds, including the requirement for the authors to be called as witnesses, the duplication of expert evidence, and whether certain reports were beyond the scope of the pleaded case.

The court had to determine whether the expert reports could be admitted under s 79C(2a) of the Evidence Act, which allows for the admissibility of statements in a document if they are a business record and the court is satisfied that the record is genuine. Given that the authors of the reports were not called to give evidence, the court had to consider whether this was a bar to admissibility or whether it could order the authors to be called as witnesses. Additionally, the court had to address whether the reports were duplicative or reliant on another expert's work, and whether the contents of the reports went beyond the scope of the pleaded case, potentially necessitating a broader scope of trial.

The court found that the reports could be admitted under s 79C(2a) despite the authors not being called as witnesses. It held that the probative value of the reports outweighed any prejudice to the defendants. The court also ruled that the reports were not duplicative and did not go beyond the scope of the pleaded case, allowing them to be considered at trial. The court exercised its discretion under the Evidence Act to reject the reports only if their admission would cause undue delay, inconvenience, or expense, or if it would create undue prejudice, confuse the issues, or mislead the jury.

The court's final orders allowed the admission of the expert reports into evidence, subject to the conditions outlined in the decision. The court also noted that the defendants' objections regarding the scope of the pleaded case and the need for the authors to be called as witnesses were not grounds for excluding the reports, provided the conditions for admissibility were met.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Section 79C(1), (2) and (2a) provide as follows:[20][20] The plaintiffs did not rely on s 79C(1).79C Documentary evidence, admissibility of(1) Subject to subsection (2), in any proceedings where direct oral evidence of a fact or opinion would be admissible, any statement in a document and tending to establish the fact or opinion shall, on production of the document, be admissible as evidence of that fact or opinion if the statement – (a) was made by a qualified person; or(b) directly or indirectly reproduces or is derived from one or other or both of the following – (i) information in one or more statements, each made by a qualified person; (ii) information from one or more devices designed for, and used for the purpose of, recording, measuring, counting or identifying information, not being information based on a statement made by any person.(2) Where a statement referred to in subsection (1) is made by a qualified person or reproduces or is derived from information in a statement made by a qualified person, that person must be called as a witness unless – (a) he is dead; (b) he is unfit by reason of his bodily or mental condition to attend or give evidence as a witness; (c) he is out of the State and it is not reasonably practicable to secure his attendance; (d) all reasonable efforts to identify or find him have been made without success; (e) no party to the proceedings who would have the right to cross examine him requires him to be called as a witness; (f) having regard to the time which has elapsed since he made the statement and to all the circumstances, he cannot reasonably be expected to have any recollection of the matters dealt with in the statement; (g) having regard to all the circumstances of the case, undue delay, inconvenience or expense would be caused by calling him as a witness; or (h) he refuses to give evidence.(2a) Notwithstanding subsections (1) and (2), in any proceedings where direct oral evidence of a fact or opinion would be admissible, any statement in a document and tending to establish the fact or opinion shall, on production of the document, be admissible as evidence of that fact or opinion if – (a) the statement is, or directly or indirectly reproduces, or is derived from, a business record; and(b) the court is satisfied that the business record is a genuine business record.(2b) Where a statement referred to in subsection (2a) is made by a qualified person that person shall not be called as a witness unless the court orders otherwise.(3) This section makes a statement admissible notwithstanding -(a) the rules against hearsay; or(b) the rules against secondary evidence of the contents of a document; or(c) that the person who made the statement or the person who made a statement from which the information in the statement is reproduced or derived is a witness in the proceedings, whether or not he gives evidence consistent or inconsistent with the statement; or(d) that the statement is in such a form that it would not be admissible if given as oral evidence,but does not make admissible a statement which is otherwise inadmissible.(5) For the purposes of this section a court may -(a) for the purpose of deciding whether or not a statement is admissible as evidence, draw any reasonable inference from the form of contents of the document in which the statement is contained, or from any other circumstances;(b) in deciding whether or not a person is fit to attend or give evidence as a witness, act on a certificate purporting to be the certificate of a registered medical practitioner.(6) For the purposes of this section a court may, in its discretion, reject a statement notwithstanding that the requirements of this section are satisfied with respect thereto, if the court is of the opinion that the probative value of the statement is outweighed by the consideration that its admission or the determination of its admissibility -(a) may necessitate undue consumption of time; or(b) may create undue prejudice, confuse the issues, or in proceedings with a jury mislead the jury.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.