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…
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- Case
- [2023] WASC 188
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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