Palmer v CITIC Ltd [No 5] - [2023] WASC 44

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   PALMER -v- CITIC LTD [No 5] [2023] WASC 44
CORAM:   KENNETH MARTIN J
HEARD:   25 JANUARY 2023
DELIVERED          :   17 FEBRUARY 2023
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 LIMITED
First Defendant
SINO IRON PTY LTD
Second Defendant
KOREAN STEEL PTY LTD
Third Defendant

Catchwords:

Practice and procedure - Directions hearing in civil actions managed together - Timetabling of further interlocutory disputes for hearing - New case manager required

Conferral - Written communications between lawyers prior to conferral objected to - Admissibility - Conferral communications - Consolidated Practice Directions - Need for leave to refer to conferral communications

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Orders and directions issued for interlocutory disputes

Category: B

Representation:

CIV 2072 of 2017

Counsel:

First Plaintiff	:	P Dunning KC, M Karam, K Byrne & D Fawcett
Second Plaintiff	:	P Dunning KC, M Karam, K Byrne & D Fawcett
First Defendant	:	SK Dharmananda SC & J Sippe
Second Defendant	:	SK Dharmananda SC & J Sippe
Third Defendant	:	SK Dharmananda SC & J Sippe

Solicitors:

First Plaintiff	:	Robinson Nielsen Legal
Second Plaintiff	:	Robinson Nielsen Legal
First Defendant	:	Allens
Second Defendant	:	Allens
Third Defendant	:	Allens

CIV 1267 of 2018

Counsel:

Plaintiff	:	P Dunning KC, M Karam, K Byrne & D Fawcett
First Defendant	:	SK Dharmananda SC & J Sippe
Second Defendant	:	SK Dharmananda SC & J Sippe
Third Defendant	:	SK Dharmananda SC & J Sippe

Solicitors:

Plaintiff	:	Robinson Nielsen Legal
First Defendant	:	Allens
Second Defendant	:	Allens
Third Defendant	:	Allens

Case referred to in decision:

Palmer v CITIC Ltd [No 4] [2022] WASC 292
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589

KENNETH MARTIN J:

These two actions raising some common legal issues are being case managed together. A further directions hearing was programmed for a special appointment on Wednesday, 25 January 2023.
Currently pursuant to my orders of 14 December 2022, there is, pending for determination at a one-and-a-half-day special appointment, an interlocutory application made by the defendants in each action (folio 147 in CIV 1267 of 2018 and folio 193 in CIV 2072 of 2017, both filed on 30 November 2022) seeking to strike out components in the plaintiffs' reamended reply (folio 146 in CIV 1267 of 2018 and folio 192 in CIV 2072 of 2017, each filed on 12 November 2022). In CIV 2072 of 2017, conceptual strike out challenges are directed against pars 33 to 97 of the plaintiffs' reamended reply pleading - presenting under the heading 'Disentitling conduct of the defendants'. There is a counterpart strike out application in CIV 1267 of 2018.
As…

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.

Continue reading Palmer v CITIC Ltd [No 5]

Details

AGLC: Palmer v CITIC Ltd [No 5] [2023] WASC 44
Case: [2023] WASC 44
Decision Date

CaseChat Overview and Summary

The plaintiffs, Clive Frederick Palmer and Mineralogy Pty Ltd, commenced proceedings against the defendants, CITIC Ltd, Sino Iron Pty Ltd, and Korean Steel Pty Ltd, in the Supreme Court of Western Australia. The disputes in these cases revolve around allegations of disentitling conduct, abuse of process, and Anshun estoppel. The court was tasked with determining various interlocutory issues, including the admissibility of written communications between lawyers, the timing of the determination of further interlocutory disputes, and the need for a new case manager. The plaintiffs sought leave to amend their statements of claim, which was opposed by the defendants. The defendants also sought to strike out certain components of the plaintiffs' reamended reply. Further, the plaintiffs sought a discharge from, or interim temporal relief against, them giving discovery in respect of certain of the earlier ordered discovery categories. The defendants also considered bringing applications to reverse aspects of earlier orders and effectively hive away quantum issues to split the trials.

The court ruled that the plaintiffs' proposed amendments to the statements of claim were significant rather than insubstantial, and the issue of leave to amend had to be ventilated before the court. The court also held that the defendants' objection to the admissibility of the annexures to the affidavit of Minwoo Chun was technically correct, and leave must first be obtained to refer to the passing lawyer correspondence. The court further determined that all further interlocutories in both actions should be determined by a new case manager and the putative trial judge, as the judge had prior involvements in earlier arguments concerning the Fulcrum Group and the Fulcrum Purposes.

The court issued orders and directions for interlocutory disputes, including the timetabling of further interlocutory disputes for hearing, and appointed Lundberg J as the new case manager of these two actions in the Court's CMC List.

Orders