Palmer v CITIC Ltd [No 7]

Case [2023] WASC 202

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   PALMER -v- CITIC LTD [No 7] [2023] WASC 202

CORAM:   LUNDBERG J

HEARD:   8 & 9 MARCH 2023

DELIVERED          :   13 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

FILE NO/S:   CIV 1267 of 2018

BETWEEN:   MINERALOGY PTY LTD

Plaintiff

AND

CITIC LTD

First Defendant

SINO IRON PTY LTD

Second Defendant

KOREAN STEEL PTY LTD

Third Defendant


Catchwords:

Practice and procedure - Strike-out applications brought by CITIC Parties - Challenge to substantial parts of the reply pleadings filed by the Mineralogy Parties in both actions - Pleading by the Mineralogy Parties of the Fulcrum Purposes and disentitling conduct in response to Anshun estoppel and abuse of process defences - Reply pleadings asserted to lack a rational and relevant connection to the pleaded defences - Complex and disputed questions of law arising - Previous exposition of similar pleadings by the Court of Appeal and by Quinlan CJ - Pleadings arguably raise rational and relevant matters - Not appropriate to strike-out the reply pleadings on an interlocutory basis

Legislation:

Rules of the Supreme Court 1971 (WA), O 20 r 9, r 13 and r 19(1)

Result:

Strike-out applications dismissed  

Category:    B

Representation:

CIV 2072 of 2017

Counsel:

First Plaintiff : Mr P J Dunning KC, Mr M Karam, Mr K S Byrne, Mr H Cooper and Mr D Fawcett
Second Plaintiff : Mr P J Dunning KC, Mr M Karam, Mr K S Byrne, Mr H Cooper and Mr D Fawcett
First Defendant : Mr J H Karkar KC, Mr J H Kirkwood and Mr T B Maxwell
Second Defendant : Mr J H Karkar KC, Mr J H Kirkwood and Mr T B Maxwell
Third Defendant : Mr J H Karkar KC, Mr J H Kirkwood and Mr T B Maxwell

Solicitors:

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

CIV 1267 of 2018

Counsel:

Plaintiff : Mr P J Dunning KC, Mr M Karam, Mr K S Byrne, Mr H Cooper and Mr D Fawcett
First Defendant : Mr J H Karkar KC, Mr J H Kirkwood and Mr T B Maxwell
Second Defendant : Mr J H Karkar KC, Mr J H Kirkwood and Mr T B Maxwell
Third Defendant : Mr J H Karkar KC, Mr J H Kirkwood and Mr T B Maxwell

Solicitors:

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

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

BC v Minister for Immigration & Multicultural Affairs [2002] FCAFC 221

C G Maloney Pty Ltd v Noon [2011] NSWCA 397

Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33; (2010) 75 NSWLR 245

Clayton v Bant [2020] HCA 44; (2020) 272 CLR 1

Commonwealth of…

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Palmer v CITIC Ltd [No 7] [2023] WASC 202
Case
[2023] WASC 202
Decision Date

CaseChat Overview and Summary

In Palmer v CITIC Ltd [No 7], the Court of Appeal was tasked with examining the application of the Anshun estoppel doctrine in the context of a legal proceeding. The case involved Mr Palmer, who was appealing a decision that had applied the Anshun estoppel to prevent him from raising certain issues in a subsequent proceeding. The central dispute centred around whether 'special circumstances' existed that would permit Mr Palmer to raise these issues despite the doctrine of Anshun estoppel. The legal issues before the Court of Appeal included the scope of the doctrine of Anshun estoppel, the nature and extent of 'special circumstances' that could justify allowing an issue to be raised in a subsequent proceeding, and the discretion of the Court in such matters.

The Court of Appeal delved into the concept of 'special circumstances', as articulated in previous cases such as Wong v Minister for Immigration and Multicultural and Indigenous Affairs. The Court noted that while the doctrine of Anshun estoppel generally prevents a party from raising an issue in a subsequent proceeding if it could have been raised earlier, there are instances where 'special circumstances' might allow for an exception. These circumstances must be exceptional and must justify the non-application of the general principle. The Court also considered whether a House v The King-type discretion, which would allow for an appeal from a decision on Anshun estoppel, could apply in this context. Ultimately, the Court concluded that the discretion to find 'special circumstances' was a factual finding and not subject to the House v The King principle.

The Court of Appeal found that the trial judge had correctly applied the principles of Anshun estoppel and had correctly concluded that no special circumstances existed to permit Mr Palmer to raise the issues in the subsequent proceeding. The Court highlighted that the determination of special circumstances involves a broad range of factors and must be assessed on a case-by-case basis. While the Court acknowledged the appellant's submissions, it upheld the trial judge's decision, finding no basis to interfere with the conclusion that no special circumstances were present. The Court of Appeal thus affirmed the lower court's decision, maintaining that the doctrine of Anshun estoppel would apply unless exceptional circumstances warranted an exception.

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

At [109], the Court of Appeal then analysed the concept of 'special circumstances'. The court held as follows (footnotes omitted), citing the decision of the Full Federal Court in Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242; (2004) 146 FCR 10 in particular:[109]The inquiry into unreasonableness, informed by the prospect of conflicting judgments, is not necessarily the end of the matter. The Court in Anshun appears to have accepted that a conclusion of unreasonableness may yet admit of exceptions. To this end, in Wong v Minister for Immigration and Multicultural and Indigenous Affairs, the Full Federal Court (in distinguishing the operation of Anshun estoppel from the doctrines of res judicata and issue estoppel), said:'As foreshadowed in Anshun, there will be instances where, even though there is every reason why the matter should have been raised earlier but was not, there are special circumstances that prevail to permit a party to raise the issue in a subsequent proceeding. The Court therefore has a discretion, if it determines that special circumstances exist, to allow an issue to be raised, even where it is found that the point was unreasonably omitted from the earlier proceeding: see Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543 at 558. However, the circumstances in which that would be permitted must, because of the principles referred to above, be exceptional, constituting "special circumstances": see BC v Minister for Immigration and Multicultural Affairs [2002] FCAFC 221 at [30]. What will be sufficient to constitute special circumstances is by no means fixed and may involve consideration of a wide range of factors, all of which bear upon the general discretion of the Court where justice requires the non-application of the general principle: see BC v Minister for Immigration and Multicultural Affairs (2001) 67 ALD 60 (Sackville J) at [50] referring to Port of Melbourne v Anshun (No 2) [1981] VicRp 9; [1981] VR 81; see also Bryant v Commonwealth Bank of Australia [1995] FCA 1299; (1995) 57 FCR 287 at 296, 298-299, citing Yat Tung Investments Co Ltd v Dao Heng Bank Ltd [1975] UKPC 6; [1975] AC 581.'[110]An inquiry into whether there are nonetheless special circumstances that should permit the party to raise the matter in a subsequent proceeding presumably incorporates, but goes beyond, the matters relevant to the unreasonableness examination. It invites a conclusion based on a potential range of matters. Thus, having regard to the above discussion of the risk of inconsistent judgments, a failure to make a claim in proceedings might be viewed as unreasonable on any view, regardless of the existence of such a risk. The absence of that risk may, however, be a relevant consideration in determining whether such special circumstances exist.[111]The appellant submits that no House v The King-type discretion arises such as to operate as a restraint on an appeal from a decision on Anshun estoppel, including where that decision turned on a conclusion of the existence of special circumstances. In BC v Minister for Immigration and Multicultural Affairs, the Full Federal Court said: [69]'In our opinion, the better approach is, with respect, that taken by the Full Court of the Supreme Court of Victoria in Anshun (No 2) i.e. that once a court has found that the Anshun principle applies, then the only "discretion" which the court may exercise not to apply the Anshun principle is if it finds that "special circumstances" exist. That is essentially a finding of fact to which the rule in House v R has no application.'[112]While the Court did not ultimately need to undertake the exercise in that case, it was prepared to undertake its own assessment of whether special circumstances existed. The appellant urged the same approach on this Court. We return to the question of the basis of appellate intervention below.