Palmer v CITIC Ltd [No 6] - [2023] WASC 188

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   PALMER -v- CITIC LTD [No 6] [2023] WASC 188
CORAM:   LUNDBERG J
HEARD:   29 MAY 2023
DELIVERED          :   1 JUNE 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

Catchwords:

Practice and procedure - Plaintiffs' application to set aside multiple subpoenas issued at the request of the defendants - Challenge by plaintiffs that subpoenas are an abuse of process, do not seek relevant documents, and have no legitimate forensic purpose - Whether subpoenas are an illegitimate attempt to obtain discovery from non-parties - No vice in pursuing documents on subpoena merely because of an overlap with the discovery process - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), Orders 26 and 36B

Result:

Plaintiffs' application to set aside the subpoenas issued at the request of the defendants is dismissed

Category: B

Representation:

Counsel:

First Plaintiff	:	P K Dunning KC, M Karam, H Cooper and D Fawcett
Second Plaintiff	:	P K Dunning KC, M Karam, H Cooper and D Fawcett
First Defendant	:	S K Dharmananda SC, S B Nadilo and J R C Sippe
Second Defendant	:	S K Dharmananda SC, S B Nadilo and J R C Sippe
Third Defendant	:	S K Dharmananda SC, S B Nadilo and J R C Sippe

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):

Alinta Sales Pty Ltd v Woodside Energy Pty Ltd [2008] WASC 304.
Boase v Axis International Management Pty Ltd [No 3] [2012] WASC 498.
Buswell v Carles [2012] WASC 509.
CITIC Ltd v Mineralogy [No 4] [2020] WASC 439.
Hamilton v Oades (1989) 166 CLR 486.
Hancock Prospecting Pty Ltd v Hancock [2013] WASC 290.
Hongkong Xinhe International Investment Company Ltd v Bullseye Mining Ltd [No 4] [2021] WASC 287.
Jensen v Nationwide News Pty Ltd [No 6] [2018] WASC 415.
Kestell v Davey [2022] WASC 32.
Mandic v Phillis [2005] FCA 1279; (2005) 225 ALR 760.
Rankilor v City of South Perth [2016] WASCA 28.
Temwell Pty Ltd v DKGR Holdings Pty Ltd [2002] FCA 741.
The Commissioner for Railways v Small (1938) 38 SR (NSW) 564.
Trade Practices Commission v Arnotts (No. 2) (1998) 21 FCR 306.

Table of Contents

A. Introduction and summary

B. Background

C. Relevant principles

D. The parties' submissions

Plaintiffs' submissions

Defendants' submissions

E. Disposition

The Subpoenas are not an attempt to bypass the discovery regime

The Subpoenas seek relevant documents

The Subpoenas have been issued for a legitimate forensic purpose

Further considerations

F. Orders

LUNDBERG J:

A. Introduction and summary

These reasons deal with the application filed by the plaintiffs which seeks…

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: [2023] WASC 188
Decision Date

CaseChat Overview and Summary

The plaintiffs in the QNI Proceeding, Clive Frederick Palmer and Mineralogy Pty Ltd, sought to set aside four subpoenas issued at the request of the defendants, CITIC Ltd, Sino Iron Pty Ltd, and Korean Steel Pty Ltd, in the Supreme Court of Western Australia. The subpoenas were issued to the recipients, Indian Ocean Capital Pty Ltd, Indian Ocean Management Group Pty Ltd, and Indian Ocean Group Pty Ltd, seeking various documents in relation to the potential sale of the Yabulu Refinery to Zero Carbon Investek AG. The plaintiffs argued that the subpoenas were an abuse of process, sought irrelevant documents, and lacked a legitimate forensic purpose.

The court addressed the plaintiffs' contentions, finding that the subpoenas were not an illegitimate attempt to bypass the discovery regime, sought relevant documents, and had a legitimate forensic purpose. The court rejected the plaintiffs' arguments, emphasizing that the overlap between the documents sought in the subpoenas and those potentially discoverable did not justify the characterization of the subpoenas as an abuse of process. The court also noted that the plaintiffs' failure to comply with their discovery obligations might have contributed to the defendants' decision to issue the subpoenas. Given the high value and complexity of the claims, the court supported the use of the subpoena process to ensure timely production of documents relevant to the valuation of the Yabulu Refinery.

The Application to set aside the subpoenas was dismissed, and the court directed the parties to discuss the need for an extension of time for compliance with the subpoenas and the appropriate costs orders.

Orders