Palmer v CITIC Ltd [No 17] - [2025] WASC 224

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   PALMER -v- CITIC LTD [No 17] [2025] WASC 224
CORAM:   LUNDBERG J
HEARD:   5 JUNE 2025
DELIVERED          :   8 JUNE 2025
PUBLISHED           :   9 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:

Practice and procedure - Application by plaintiffs to admit historical valuation report of valuer pursuant to s 79C(1) of the Evidence Act 1906 (WA) - Whether author is a 'qualified witness' under s 79B of the Evidence Act 1906 (WA) - Application for leave to dispense with requirements made in relation to expert evidence - Subpoena issued by plaintiffs to call author of historical report following ruling by the Court that report not capable of being tendered as a 'business record' under s 79C(2a) of the Evidence Act 1906 (WA) - Whether proposed orders consistent with case management principles - Whether prejudice to the defendants - Whether additional case management directions might ameliorate any prejudice - Turns on own facts

Legislation:

Evidence Act 1906 (WA), s 79B, s 79C
Rules of the Supreme Court 1971 (WA), O 1 r 4A, O 1 r 4B, O 36A r 1

Result:

Ruling that portions of the Jaski Report and associated affidavit may be tendered pursuant to s 79C(1) of the Evidence Act 1906 (WA).
Further case management directions to be made.

Category: B

Representation:

Counsel:

First Plaintiff	:	P J Dunning KC, M A Karam, H Cooper, D Fawcett, L Tassell & M Stone
Second Plaintiff	:	P J Dunning KC, M A Karam, H Cooper, D Fawcett, L Tassell & 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
Clark v Ryan (1960) 103 CLR 486
Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588
Energy Resources Ltd v Cactus Wellhead Australia Pty Ltd [2023] WASC 475
Mansour v Standard Telephones & Cables Pty Ltd [1983] 3 NSWLR 205
Palmer v CITIC Ltd [No 10] [2023] WASC 417
Palmer v CITIC Ltd [No 12] [2024] WASC 322
Palmer v CITIC Ltd [No 16] [2025] WASC 216
Palmer v CITIC Ltd [No 9] [2023] WASC 238
Phoenix Eagle Company Pty Ltd v Tom McArthur Pty Ltd [No 3] [2020] WASC 272
TPC v TNT Management Pty Ltd (1984) 56 ALR 647

Table of…

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 224
Decision Date: 9 JUNE 2025

CaseChat Overview and Summary

In Palmer v CITIC Ltd [No 17], the plaintiffs sought to introduce a historical valuation report by Mr Jaski, a valuer, under section 79C(1) of the Evidence Act 1906 (WA). The defendants contested whether Mr Jaski qualified as a 'qualified witness' under section 79B of the same Act, necessary for the report to be admitted as evidence. The court had to decide if the plaintiffs could dispense with the procedural requirements for expert evidence and whether issuing a subpoena to Mr Jaski would be consistent with case management principles. Additionally, the court assessed whether any potential prejudice to the defendants could be mitigated by additional case management directions.

The court examined the qualifications of Mr Jaski and his report's relevance to the case. It allowed the plaintiffs to use parts of the Jaski Report and his affidavit but confined the tender to specific sections. The court ruled that Mr Jaski would not lead further substantive evidence but would be subject to cross-examination and re-examination. The subpoena to Mr Jaski was permitted, and the defendants' expert, Mr Meredith, was granted leave to file a further report. The plaintiffs were required to further particularise their claim for damages. The trial was divided into two phases to accommodate these decisions, with the second phase focusing on the Non-Going Concern Evidence and closing addresses.

The court concluded that the orders made were consistent with case management principles and would not unduly prejudice the defendants. The decision allowed for a structured approach to the trial, ensuring that all evidence and expert opinions were properly managed and presented. The court also outlined the timing and structure for the second phase of the trial, ensuring that all parties had adequate opportunity to prepare and present their cases.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

At the hearing on 6 June, I informed the parties that I proposed to make orders to give effect to the approach set out below, subject to hearing further from the parties as to these orders at the commencement of the trial on 9 June:1.The plaintiffs' application to rely upon parts of the Jaski Report, and parts of his covering affidavit, would be allowed, to permit tender pursuant to s 79C(1). The tender would be confined to specific and identified portion of the affidavit and the Jaski Report, namely: (a)[1]-[7] of the affidavit; (b)[1], [2]-[8], [9]-[12], [21]-[30], [40]-[59], [60]-[88], [113]-[140], [254]-[274] and [285] of the Jaski Report; and (c)Appendices A, B, C, D, E and N of the Jaski Report.2.In accordance with the procedure proposed by the plaintiffs, no further substantive evidence in chief would be permitted to be led from Mr Jaski when he is called to give evidence. Mr Jaski would be subject to cross-examination and re-examination in the usual manner.3.Leave would be granted to have a subpoena, in the terms of the subpoena which was filed by the plaintiffs on 30 May, issued to Mr Jaski.[12]4.The defendants' expert, Mr Meredith, would be allowed an opportunity to file a further responsive report in relation to the Jaski Report.5.The plaintiffs would be required to further particularise their claim for damages as pleaded in the 7ASOC at [48(i), (ii) and (iv)] including references to the expert evidence and the material in the Jaski Report which is to be relied upon in support of the claim.6.To accommodate the timing implications of the above, the trial of the action would be conducted in two phases.7.The first phase, commencing on 9 June, will hear all matters other than the evidence of Mr Jaski and the expert evidence of Mr Meredith as to the non-going concern value of the Yabulu Refinery as pleaded in the 7ASOC at [48(iv)] (and as pleaded in the Amended Substituted Defence at [48]) (which I will refer to as the Non-Going Concern Evidence) and the parties' closing addresses.8.The second phase of the trial, to be heard over 5 hearing days commencing after the first phase of the trial is concluded, on dates to be fixed, will hear the Non-Going Concern Evidence and the parties' closing addresses. The commencement date for the second phase of the trial would be fixed once the availability of witnesses was confirmed by the parties, and once the timing of the further expert report of Mr Meredith had been determined.9.The evidence of Mr Jaski and Mr Meredith at the second phase of the trial will be given separately and not concurrently. There shall not be an expert conference between Mr Jaski and Mr Meredith.10.To the extent necessary, the Court would hear any application for subpoenas to be issued to third parties for the production of documents relating to the Jaski Report, bearing in mind the defendants' concerns as to document production and it being apparent to the Court, on the available evidence, that the plaintiffs do not have possession of the documents which are sought. [12] Folio 498.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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