JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: PALMER -v- CITIC LTD [No 8] [2023] WASC 221
CORAM: LUNDBERG J
HEARD: 4 APRIL 2023
DELIVERED : 22 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 - Applications brought by the Mineralogy Parties for leave to amend their statements of claim - Contractual indemnity claim under Fortescue Coordination Deed - Sixth proposed amended statement of claim in the QNI Proceeding - Third proposed amended statement of claim in the Palmer Petroleum Proceeding - Applications opposed by the CITIC Parties - Proposed amendments in QNI Proceeding criticised as being hopelessly general and failing to plead the necessary facts to establish the causal connection required for the contractual indemnity claim - CITIC Parties contend leave should be refused because pleading discloses no reasonable cause of action or is embarrassing - CITIC Parties also rely on case management considerations to oppose the pleading amendments - Objections to the third proposed amended statement of claim in Palmer Petroleum Proceeding derivative upon objections in QNI Proceeding - Consideration as to interaction between functions of pleadings and modern case management requirements
Legislation:
Rules of the Supreme Court 1971 (WA), O 1 r 4A and r 4B, O 20 r 19(1) and O 21 r 5(2)
Result:
Amendment application in CIV 2072 of 2017 dismissed (QNI Proceeding) and amendment application in CIV 1267 of 2018 allowed (Palmer Petroleum Proceeding)
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 S K Dharmananda SC, Ms S B Nadilo, Mr J R C Sippe |
| Second Defendant | : | Mr S K Dharmananda SC, Ms S B Nadilo, Mr J R C Sippe |
| Third Defendant | : | Mr S K Dharmananda SC, Ms S B Nadilo, Mr J R C Sippe |
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 S K Dharmananda SC, Ms S B Nadilo, Mr J R C Sippe |
| Second Defendant | : | Mr S K Dharmananda SC, Ms S B Nadilo, Mr J R C Sippe |
| Third Defendant | : | Mr S K Dharmananda SC, Ms S B Nadilo, Mr J R C Sippe |
Solicitors:
| Plaintiff |
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- AGLC
- Palmer v CITIC Ltd [No 8] [2023] WASC 221
- Case
- [2023] WASC 221
- Decision Date
CaseChat Overview and Summary
The court had to determine whether granting leave to amend the pleadings would be futile, given that the amended pleadings might still be subject to being struck out. The decision in Palmer v CITIC Ltd [No 7] was referenced, where it was established that leave to amend should not be granted if the amended pleadings would likely be struck out under O 20 r 19(1) RSC. The principles governing strike-out applications were highlighted, emphasising the need for pleadings to clearly state the issues, disclose an arguable cause of action, and apprise the parties of the case to be met. The court also noted that the function of particulars is to provide sufficient detail to enable the other party to prepare for trial, rather than to fill gaps in a deficient pleading.
The court concluded that granting leave to amend the pleadings would be futile, as it was likely that the amended pleadings would still be subject to being struck out. The reasoning was based on the principles that leave to amend should not be granted if the amended pleadings are in a form that ought to be struck out. The court was reluctant to allow the parties and the court's resources to be expended on debating technical pleading rules, particularly when the pleadings appeared weak. The court's decision was influenced by previous rulings, including Hooker Corporation Ltd v Commonwealth and Nyoni v Patterson, which emphasised the importance of case management and the basic functions of pleadings.
The final orders of the court were that Palmer's application for leave to amend his pleadings was dismissed, and the application was struck out. The court found that granting leave to amend would be futile, as the amended pleadings were likely to still be subject to being struck out. This decision aligns with the principles established in previous cases, which emphasise the importance of clear and precise statements of issues and the reluctance to allow the extensive debate of technical pleading rules in a modern context.
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
It is well‑accepted that leave to amend will not be given where the amended pleading is in a form which ought to be struck out.[7] Thus, the court should not give leave to amend a pleading where to do so would leave that pleading susceptible to being struck out pursuant to one of the grounds stated in O 20 r 19(1) RSC. [7] Hooker Corporation Ltd v Commonwealth (1986) 65 ACTR 32, 38 (Kelly J); and Nyoni v Patterson [2012] WASCA 171 [38] (Pullin JA, with whom Buss JA (as his Honour then was) and Murphy JA agreed). In Palmer v CITIC Ltd [No 7] [2023] WASC 202, I summarised the principles governing strike‑out applications brought pursuant to O 20 r 19(1) RSC and the inherent jurisdiction of the court. Those principles are well established and were summarised by Smith J in Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398 [60(d)] ‑ [60(j)] (Smith J).[8] The principles I set out in Palmer v CITIC Ltd [No 7] were largely adopted from the decision of her Honour. In summary:(a)Strike‑out applications, in a modern context, must be assessed in the context of case management techniques. Case management considerations are not, however, necessarily antithetical to the observance of pleading rules. The objects of O 1 r 4A and r 4B RSC are often promoted by a clear and precise statement of the issues for decision.[9](b)Provided a pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action (or defence), and apprising the parties of the case that has to be met, the court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the court to be spent extensively debating the application of technical pleading rules that evolved in, and derive from, a very different case management environment.[10](c)Moreover, the mere fact that a case appears weak is not of itself sufficient to strike‑out the action.[11] As a general rule, a party is entitled as of right to have his or her case heard, to have the facts found and then to argue the question of law as it arises before the trial judge upon the facts as found. (d)It is fundamental that, on a strike‑out application, not only must all the facts alleged in the pleading be accepted as true, but it must be taken for granted that on all other points the pleading is unassailable.[12] There is a further point worth making at this point, of relevance to the current applications. Particulars to a pleading are not intended to fill gaps in a deficient pleading. The function of particulars is 'to fill in the picture of the [party's] cause of action with information sufficiently detailed to put the [other party] on his guard as to the case he has to meet and to enable him to prepare for trial': Bruce v Odhams Press Ltd [1936] 1 KB 697, 712 ‑ 713 (Scott LJ).[15] [15] See also Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024 [2] ‑ [3] (Gleeson CJ) and Wheelahan v City of Casey (No 12) [2013] VSC 316 [25] (Dixon J).