Palmer v CITIC Ltd [No 9]

[2023] WASC 238

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   PALMER -v- CITIC LTD [No 9] [2023] WASC 238

CORAM:   LUNDBERG J

HEARD:   29 MAY 2023

DELIVERED          :   29 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 by the Mineralogy Parties to discharge discovery orders previously made - Pleadings have changed since discovery orders were initially made - Whether appropriate to presently determine application or defer until the pleadings have been clarified and 'sufficient cause' can then be assessed by the court

Practice and procedure - Applications by the CITIC Parties to discharge separate trial orders previously made and to unify all matters - Orders made by consent - Question of costs remaining

Legislation:

Rules of the Supreme Court 1971 (WA), O 4A r 5, O 4A r 5A, O 26 r 16 and O 66 r 1(1)
Supreme Court Act 1937 (WA), s 37

Result:

Orders will be made to defer the applications by the Mineralogy Parties seeking to discharge the prior discovery orders
Mineralogy Parties to pay the costs of the applications filed by the CITIC Parties to discharge separate trial orders

Category:    B

Representation:

CIV 2072 of 2017

Counsel:

First Plaintiff	:	Mr P J Dunning KC, Mr M Karam, Mr H Cooper & Mr D Fawcett
Second Plaintiff	:	Mr P J Dunning KC, Mr M Karam, Mr H Cooper & 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 Nielsen Legal
Second Plaintiff	:	Robinson Nielsen 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 H Cooper & 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	:	Robinson Nielsen Legal
First Defendant	:	Allens
Second Defendant	:	Allens
Third Defendant	:	Allens

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

Bidvest Australia Ltd v Auzcorp Pty Ltd [No 2] [2017] WASCA 23.

Commonwealth Bank of Australia Ltd v Saraceni [2013] WASC 115.

Commonwealth v Albany Port Authority [2006] WASCA 185.

Frigger v Lean [2012] WASCA 66.

Palmer v CITIC Ltd [2017] WASC 253.

Palmer v CITIC Ltd [No 2] [2019] WASC 14.

Palmer v CITIC Ltd [No 3] [2019] WASC 424.

Palmer v CITIC Ltd [No 4] [2022] WASC 292.

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

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

Palmer v CITIC Ltd [No 7] [2023] WASC 202.

Palmer v CITIC Ltd [No 8] [2023] WASC 221.

Sino Iron Pty Ltd v Mineralogy Pty Ltd [2022] WASC 151.

Table of Contents

A.     Introduction and summary

B.      Background

C.     Discovery Discharge Applications

Overview

The power to discharge previous discovery orders

The parties' respective contentions

Conclusion

D.     Unification Applications

Overview

Appropriate costs orders

E.      Orders

ATTACHMENT A - QNI DISCOVERY CATEGORIES

ATTACHMENT B - PP DISCOVERY CATEGORIES

LUNDBERG J:

A.     Introduction and summary

1. These interlocutory reasons for decision relate to two sets of applications filed in these proceedings (the FCD Proceedings).  The applications are interrelated to some degree. 

2. The first applications (the Discovery Discharge Applications) are brought by the plaintiffs in both actions (the Mineralogy Parties), seeking orders to vary the discovery orders made by Kenneth Martin J on 22 October 2019 in both actions.[1] The applications are made pursuant to O 26 r 16 of the Rules of the Supreme Court 1971 (WA) (RSC), or alternatively the inherent jurisdiction of the court.  The scope of these applications was able to be narrowed by the parties between the date of filing and the date of hearing.

   [1] I refer to the plaintiffs' chamber summonses for leave to amend and other orders dated 23 January 2023 filed in CIV 2072 of 2017 and in CIV 1267 of 2018.

3. The second applications (the Unification Applications) are brought by the defendants in both actions (the CITIC Parties) seeking orders to vacate the separate trial orders made by Kenneth Martin J on 14 September 2020 in both actions and to unify all matters in each action.[2]  The Mineralogy Parties ultimately consented to the orders, leaving only the question of costs.  The present reasons are concerned with that costs question.

   [2] I refer to the defendants' chamber summonses for leave to vacate orders for separate trial of quantum dated 10 February 2023 filed in CIV 2072 of 2017 and in CIV 1267 of 2018.

4. At the hearing on 29 May 2023, Mr P J Dunning KC led the counsel team for the Mineralogy Parties and Mr S K Dharmananda SC led the counsel team for the CITIC Parties.  I reserved my decision on both matters.  For the reasons which now follow, I am of the opinion that:

   (a)As to the Discovery Discharge Applications, those applications should be deferred until such time as the court can be confident that the pleadings in the QNI Proceeding and the Palmer Petroleum Proceeding (or at least those aspects of the pleadings which directly impact the disputed discovery categories) have been clarified.  Once that point is reached, the court can consider whether the criterion of 'sufficient cause', which conditions the exercise of the power in O 26 r 16 RSC, has been met.

   (b)As to the Unification Applications, the plaintiffs should pay the defendants' costs of those applications, to be taxed if not agreed, payable forthwith.  

B.     Background

1. There have been several interlocutory decisions published by this court in these actions since they were commenced in 2017 and 2018.  Those decisions provide context to the present applications.[3]

   [3] Palmer v CITIC Ltd [2017] WASC 253 (Le Miere J) (Stay application); Palmer v CITIC Ltd [No 2] [2019] WASC 14 (Kenneth Martin J) (Preliminary questions application); Palmer v CITIC Ltd [No 3] [2019] WASC 424 (Kenneth Martin J) (Discovery categories); Sino Iron Pty Ltd v Mineralogy Pty Ltd [2022] WASC 151 (Quinlan CJ) (Costs application); Palmer v CITIC Ltd [No 4] [2022] WASC 292 (Kenneth Martin J) (Strategic conference and timetabling); Palmer v CITIC Ltd [No 5] [2023] WASC 44 (Kenneth Martin J) (Directions and timetabling); Palmer v CITIC Ltd [No 6] [2023] WASC 188 (Lundberg J) (Application to set aside subpoenas); Palmer v CITIC Ltd [No 7] [2023] WASC 202 (Lundberg J) (Strike‑out applications); and Palmer v CITIC Ltd [No 8] [2023] WASC 221 (Lundberg J) (Amendment applications).

2. I will incorporate by reference the matters which are detailed at [4] - [15] of the reasons published as Palmer v CITIC Ltd [No 7] [2023] WASC 202, and at [4] - [13] of the reasons published as Palmer v CITIC Ltd [No 8] [2023] WASC 221. I will use the definitions and abbreviations employed in those earlier reasons.

C.     Discovery Discharge Applications

Overview

1. On 22 October 2019, Kenneth Martin J issued discovery orders in the QNI Proceeding and the Palmer Petroleum Proceeding, by which the Mineralogy Parties were ordered to give discovery of various categories of documents, as detailed in the schedule attached to those orders (QNI Discovery Orders and PP Discovery Orders, respectively). Those orders were made pursuant to O 26 r 7 RSC.

2. The schedule to the QNI Discovery Orders describes 43 separate categories of documents which were to be discovered, and the schedule to the PP Discovery Orders describes 45 separate categories of documents which were to be discovered.  As noted, these are all categories which obliged the Mineralogy Parties, as distinct from the CITIC Parties, to give discovery of documents.

3. By the Discovery Discharge Applications, the Mineralogy Parties seek orders that they be discharged from complying with the requirement to give discovery of documents in categories 25, 26 and 42 of the QNI Discovery Orders, and from categories 28 and 44 of the PP Discovery Orders.

4. The Mineralogy Parties had initially sought to be relieved of complying with categories 6, 31, 39, 40, 41 and 43 of the QNI Discovery Orders, and categories 31, 32 and 33 of the PP Discovery Orders.  The basis for that aspect of the applications was that such discovery was not required whilst the separate trial regime (as ordered by the court) was in place.  However, as those orders have now been vacated,[4] the Mineralogy Parties no longer press these aspects of the summonses.  I therefore need not comment further on those matters.

   [4] Orders to this effect were made by consent on 29 May 2023.

5. The various categories of discovery to which I have referred at [9] and [10] above are set out in Attachment A to these reasons (concerning the QNI Petroleum Proceeding) and Attachment B to these reasons (concerning the Palmer Petroleum Proceeding).

6. The categories in respect of which the Mineralogy Parties seek to be discharged are categories that relate to the financial position of Mr Palmer and entities related to him.  I will highlight two examples.

7. Category 25 in the QNI Proceeding requires the plaintiffs in that action to discover:

   All documents directly relevant to the true and fair financial position, including full details of all assets and liabilities together with all financial statements, including balance sheets, profit and loss and cash flows and bank statements, for the period from 1 July 2015 to 30 June 2016 of each of the following persons and entities:

   (i) Clive Palmer (including valuations of the Palmer Sea Reef Golf Course);

   (ii) Mineralogy Pty Ltd;

   (iii) QNI;

   (iv) QNR;

   …

   (xiii) Any other entity or company directly or indirectly controlled by Palmer during that period.

8. Category 44 in the Palmer Petroleum Proceeding requires the plaintiff in that action to discovery:

   All documents evidencing or recording current liabilities (at the relevant time) of Palmer and each company and entity directly or indirectly controlled by him in the period from fourth quarter of 2013 to second quarter of 2016 to which the Royalty Component B, if it had been paid as alleged in [25] and [26] of the SOC, could have been applied or paid in whole or part satisfaction of those liabilities.

The power to discharge previous discovery orders

1. The Discovery Discharge Applications are brought pursuant to the power in O 26 r 16 RSC, and also pursuant to the court's inherent jurisdiction. The power in O 26 r 16 RSC is not to be read down and should be given its natural and ordinary meaning: Bidvest Australia Ltd v Auzcorp Pty Ltd [No 2] [2017] WASCA 23 [35] (Martin CJ, Newnes and Murphy JJA). The rule is in the following terms:

   Revocation and variation of orders

   Any order which has been made under this Order, including an order made on appeal, may, on sufficient cause being shown, be revoked or varied by a subsequent order or direction of the Court made or given at or before the trial of the cause or matter in relation to which the original order was made.

2. The relevant commentary in Civil Procedure Western Australia provides useful context to a consideration of the scope of the power:[5]

   The rule is entirely consistent with case management principles and the objectives set out in O 1 r 4B that there should be the greatest degree of flexibility in the court to revoke or vary orders for discovery if sufficient cause is shown; the requirement to show “sufficient cause” imposes the necessary restraint upon the application of the rule: Bidvest Australia Ltd v Auzcorp Pty Ltd (No 2) [2017] WASCA 23; BC201700750 at [34]. See also Hawthorn Football Club Ltd v Arfmas Pty Ltd (Unreported, Supreme Court of Western Australia Full Court, 22 October 1987, Burt CJ, Wallace and Kennedy JJ).  An order made by consent is within the rule and the fact that the consent was given by mistake may be good cause to vary the order: Greenpark Pty Ltd v Odin Inns Pty Ltd [1989] WAR 322 at 324–325; see Bidvest Australia Ltd v Auzcorp Pty Ltd (No 2) [2017] WASCA 23; BC201700750 at [28], [32] – [33].

   [5] Civil Procedure Western Australia, [26.16.1].

3. The presence of the express power in O 26 r 16 RSC to discharge previous discovery orders obviates the need to address the general law limitations on the power to vary or discharge orders made on a prior interlocutory application.[6]  A comprehensive review of the authorities in that regard can be found in Steytler P's decision in Commonwealth v Albany Port Authority [2006] WASCA 185 [23] – [25] and in Corboy J's decision in Commonwealth Bank of Australia Ltd v Saraceni [2013] WASC 115 [9]. It also appears to me that the text of the express power renders it unnecessary to consider the question, described as being 'uncertain' in Civil Procedure Western Australia, whether one judge has inherent power to vary or discharge the order of another judge.[7]

The parties' respective contentions

[6] Civil Procedure Western Australia, [43.3.10].

[7] Civil Procedure Western Australia, [43.3.10] citing Commonwealth v Albany Port Authority [29] (Steytler P) and [72] - [73] (Pullin JA).

1. It is contended on behalf of the Mineralogy Parties that the plaintiffs should be discharged from giving discovery of the identified categories because the facts in issue in the FCD Proceedings have changed since the QNI Discovery Orders and PP Discovery Orders were made.[8]  The Mineralogy Parties accept that the financial resources of Mr Palmer and his related entities were initially put in issue by the pleadings 'on multiple fronts'.  However, the changes to the pleadings since then have, it is submitted, narrowed the issues in dispute.  This circumstance, if demonstrated by the Mineralogy Parties, would represent 'sufficient case' for the purposes of O 26 r 16 RSC (in that discovery obligations should remain confined to matters which are in issue).[9]

   [8] Mineralogy Discovery Submissions, [2].

   [9] Bidvest [34].

2. The Mineralogy Parties point to the following amendments to the pleading, among others, in support of the application (and by which it is asserted that the financial position of Mr Palmer and any entities related to him is no longer a fact in issue in either proceeding):

   (a)the removal of allegations in the statements of claim that Mineralogy was 'unable' to provide funds to QNI or Palmer Petroleum;[10] and

   (b)amendments to the manner in which the replies join issue with the defences.

   [10] In the QNI Proceeding, see the 4ASOC, [44].  In the Palmer Petroleum Proceeding, see the ASOC, [38D] and [38H].

3. The core contention of the Mineralogy Parties is thus, if the CITIC Parties had complied with their contractual obligations, Mineralogy would have provided QNI or Palmer Petroleum with the funds they needed and the outcomes that eventuated would have been avoided altogether.  On this pleaded case, establishing this particular contention is sufficient for the purposes of cl 11.5(c) FCD, and the Mineralogy Parties need not go so far as to prove that Mineralogy was 'unable' to provide funds to QNI or to Palmer Petroleum.[11]

   [11] Mineralogy Discovery Submissions, [10] and [12].

4. The CITIC Parties reject the contention that the course of the pleadings in both proceedings has obviated the need for discovery of the documents in question, and further dispute that the plaintiffs' pleadings reflect a demurrer to the CITIC Parties' allegations about the capacity of Mr Palmer and entitles controlled by him to make funding available to QNI and Palmer Petroleum.  The CITIC Parties also emphasise the role played by the mitigation obligation in cl 9.1(e) FCD, which is deployed as part of the CITIC Parties' defences to these claims.

5. To address certain arguments advanced by the CITIC Parties, the Mineralogy Parties have now foreshadowed further amendments to their replies in both proceedings.  Those amendments have not been formalised at this stage.  Unsurprisingly, the CITIC Parties do not accept that the amendments would neutralise the force of the entirety of their submissions.

6. Several sets of written submissions were filed by the parties in relation to the Discovery Discharge Applications, and the Senior Counsel for the respective parties further developed the arguments at the hearing on 29 May 2023.[12]  I have reviewed the detailed submissions which were filed.  I have also reviewed the various aspects of the pleadings which each party contends provides comfort, to varying degrees, for the ultimate submissions they advance on the Discovery Discharge Applications. 

Conclusion

[12] Mineralogy Submissions dated 1 May 2023; CITIC Submissions dated 15 May 2023; Mineralogy Reply Submissions dated 24 May 2023; and CITIC Submissions in Response to the Mineralogy Reply Submissions dated 25 May 2023.

1. Ultimately, I consider the best course, having regard to the status of the FCD Proceedings as a whole, is to defer any determination of the Discovery Discharge Applications.  This was one of the courses proposed by Senior Counsel for the CITIC Parties.[13]  I consider this is the most appropriate course for the following reasons:

   1.The Discovery Discharge Applications seek to discharge extant orders of the court, namely the QNI Discovery Orders and the PP Discovery Orders, which have been operative for well over two years.  The QNI Discovery Orders and the PP Discovery Orders were made by Kenneth Martin J, as the then case manager of the FCD Proceedings.

   2.The discovery categories specified in those orders which remain in dispute, and which the Mineralogy Parties seek to have discharged, would require the disclosure of extensive financial information which may well be of a confidential and sensitive nature (at least from the perspective of the Mineralogy Parties and their related entities).  From the CITIC Parties' perspective, the documents falling within the discovery categories appear to hold a degree of perceived importance to the defences those parties wish to mount in these proceedings, including in relation to the line of defence grounded on cl 9.1(e) FCD (although the Mineralogy Parties contend those defences are no longer in issue given the pleading developments).

   3.The resolution of the Discovery Discharge Applications will turn on a close analysis of the pleadings and particulars in the FCD Proceedings.  Admittedly, the detailed written submissions filed by the parties provide the starting framework for that analysis.  However, during the course of these applications, further amendments were proposed by the Mineralogy Parties.  As noted, those amendments are not regarded by the CITIC Parties as providing an antidote to the pleading difficulty which they contend undermines the Discovery Discharge Applications.

   4.There have been recent, extensive pleading disputes in the FCD Proceedings.  I refer to the strike-out applications filed by the CITIC Parties, which challenged substantial parts of the reply pleadings filed by the Mineralogy Parties.  The impugned paragraphs of the reply pleadings concerned the so-called Fulcrum Purposes and disentitling conduct pleaded in response to the Anshun estoppel and abuse of process defences. I declined to strike-out the paragraphs in question: Palmer v CITIC Ltd [No 7] [2023] WASC 202. Additionally, applications were brought by the Mineralogy Parties for leave to amend their statements of claim, which applications I largely dismissed in the QNI Proceeding, but allowed in the Palmer Petroleum Proceeding: Palmer v CITIC Ltd [No 8] [2023] WASC 221. Final orders have not yet been made in relation to the amendment applications.

   5.Fundamentally, whether the power in O 26 r 16 RSC to discharge previous discovery orders of this court should be exercised is a matter which should be approached with a degree of caution, particularly when those orders have been in place for an extended period of time and were made by the previous case manager. In the present context, this means, in my view, that the task should preferably be embarked upon once the pleadings have settled down to a more significant degree than appears at the present. There is a risk that a decision on these applications, made at the present time, might be based on a temporary (or at least non-final) snapshot of the pleadings.

   6.The determination of the Discovery Discharge Applications should therefore be deferred until such time as the court can be confident that the pleadings in the QNI Proceeding and the Palmer Petroleum Proceeding (or at least those aspects of the pleadings which directly impact the disputed discovery categories) have been clarified.  Once that point is reached, the court can appropriately consider whether the criterion of 'sufficient cause', which conditions the exercise of the power in O 26 r 16 RSC, has been met.

   7.In the meantime, the extant obligation on the Mineralogy Parties to provide the discovery required by categories 25, 26 and 42 of the QNI Discovery Orders, and the discovery required by categories 28 and 44 of the PP Discovery Orders, can be addressed through the making of appropriate case management orders.  This should be done to ensure the compliance obligation is clear and certain.  Subject to hearing from the parties on this issue, my inclination is to fashion orders to the effect that the plaintiffs' obligation to comply with the QNI Discovery Orders (as to categories 25, 26 and 42), and the plaintiff's obligation to comply with the PP Discovery Orders (as to categories 28 and 44) be extended to a fixed date.

   [13] ts 790.

D.     Unification Applications

Overview

1. On 14 September 2020, and with the consent of all parties,[14] Kenneth Martin J made orders in both actions by which questions of quantum would be removed and tried separately, if necessary, following a determination of all other issues in the actions (the Separate Trial Orders). 

   [14] The prospect of a split trial was originally floated by Kenneth Martin J at the directions hearing on 21 August 2020, having earlier ruled against certain preliminary questions being 'hived-off' for determination: affidavit of Charles Philip Blaxill sworn 1 May 2023, Attachments CPB-3 and CPB-4.  At the hearing on 14 September 2020, and in response to the observation of Kenneth Martin J made at the earlier hearing, the parties proposed orders for a split of liability and quantum in both actions: affidavit of Charles Philip Blaxill sworn 1 May 2023, Attachment CPB-5 (pg 80).

2. His Honour made the following orders in the QNI Proceeding:

   1. Pursuant to Order 32 rule 4 of the Rules of the Supreme Court 1971 (WA), the following question:

   (a) the value of the Yabalu Refinery and the extent of any diminution in its value, as well as the extent of any consequential diminution in the value of the shares and shareholdings, being the subject of paragraphs 48 and 49 respectively of the Fourth Amended Statement of Claim dated 17 July 2018;

   be removed to be tried separately, if necessary, subsequent to the determination of all other issues in the proceeding.

   2. Subject to any order by the trial judge, the commencing trials in actions CIV 1267 of 2018 and CIV 2072 of 2017 will be heard together and the evidence in one shall stand as evidence in the other and vice versa.

3. His Honour made the following orders in the Palmer Petroleum Proceeding:

   1. Pursuant to Order 32 rule 4 of the Rules of the Supreme Court 1971 (WA), the following question:

   (a) the value of Palmer Petroleum and the extent of any diminution in its value, as well as the extent of any consequential diminution in the value of the shares and shareholding in Palmer Petroleum, being the subject of paragraphs 42(b) and 43 respectively of the Amended Statement of Claim dated 28 March 2018;the value of Palmer Petroleum and the extent of any diminution in its value, as well as the extent of any consequential diminution in the value of the shares and shareholding in Palmer Petroleum, being the subject of paragraphs 42(b) and 43 respectively of the Amended Statement of Claim dated 28 March 2018;

   be removed to be tried separately, if necessary, subsequent to the determination of all other issues in the proceeding.

   2. Subject to any order by the trial judge, the commencing trials in actions CIV 1267 of 2018 and CIV 2072 of 2017 will be heard together and the evidence in one shall stand as evidence in the other and vice versa.

4. As matters have developed over the last two years or more, it appears the CITIC Parties have had occasion to reconsider the utility of separating the trials on liability and quantum in these actions.  This issue was the subject of conferral between the parties during January 2023, which culminated in the Unification Applications being filed on 10 February 2023. 

5. At the hearing on 29 May 2023, Senior Counsel for each party indicated that the orders sought in the Unification Applications could be made by consent. As the orders were to be made by consent, I was satisfied that the court had the necessary power to make those orders (whether under the power to case management powers in O 4A r 5 and O4A r 5A, or the court's inherent jurisdiction, and also satisfied it was appropriate to exercise that power to, in effect, undo the separate trial orders previously made by the court and unify the matters for trial in each action.

6. I accordingly made the following orders in each action at the conclusion of that hearing:

   1.Pursuant to Order 4A Rules 5(2) and 5A(1) of the Rules of the Supreme Court 1971 (WA) or, further or alternatively, the court's inherent jurisdiction, order 1 of the Orders made on 14 September 2020 be vacated and all issues in the proceeding be tried together.

   2. Costs be reserved.

Appropriate costs orders

1. Senior Counsel for each parties made brief submissions at the hearing on 29 May 2023 as to the appropriate costs orders which should follow, given the resolution of the Unification Applications.[15] 

   [15] ts 778 – 780.

2. Pursuant to s 37 of the Supreme Court Act 1935 (WA), the court has a wide discretion to award costs. The discretion regarding costs has been described as 'absolute, unconfined or unfettered, although a discretion that must be exercised judicially, not arbitrarily or capriciously, or on grounds unconnected with the litigation': Frigger v Lean [2012] WASCA 66 [53] (Newnes and Murphy JJA and Allanson J).

3. The general rule in litigation is that costs should follow the event. That is, the successful party should recover its costs from the opposing party. It is incumbent on an unsuccessful party to satisfy the court that there are good reasons it should not pay the successful party's costs: O 66 r 1(1) RSC.

4. In my view, there is nothing about the course of the Unification Applications which justifies a departure from the general rule.  While the Mineralogy Parties ultimately (and sensibly) consented to the orders sought by the CITIC Parties and a lengthy hearing was avoided, by that time the CITIC Parties had filed the applications, following appropriate conferral, and incurred legal costs in doing so.  I can see nothing in the conduct of the CITIC Parties which would justify depriving them of the benefit of the usual and orthodox costs order, having obtained the interlocutory orders their applications were designed to seek.

E.     Orders

1. I propose to make the following orders in the QNI Proceeding (being CIV 2072 of 2017), subject to hearing from counsel:

   Discovery Discharge Application

   1.The hearing and determination of paragraph 2(a) of the plaintiffs' chambers summons dated 23 January 2023 be deferred until further order of the court.

   2.The costs relating to paragraph 2(a) of the plaintiffs' chambers summons dated 23 January 2023 be reserved.

   3.The time for compliance by the plaintiffs with the discovery orders made by Kenneth Martin J on 22 October 2019, as to categories 25, 26 and 42, be extended to 30 September 2023, with liberty to the parties to apply.

   Unification Application

   4.The plaintiffs to pay the defendants' costs of the defendants' chambers summons dated 10 February 2023, to be taxed if not agreed, payable forthwith.

2. I propose to make the following orders in the Palmer Petroleum Proceeding (being CIV 1267 of 2018), subject to hearing from counsel:

   Discovery Discharge Application

   1.The hearing and determination of paragraph 2(a) of the plaintiff's chambers summons dated 23 January 2023 be deferred until further order of the court.

   2.The costs relating to paragraph 2(a) of the plaintiff's chambers summons dated 23 January 2023 be reserved.

   3.The time for compliance by the plaintiff with the discovery orders made by Kenneth Martin J on 22 October 2019, as to categories 28 and 44, be extended to 30 September 2023, with liberty to the parties to apply.

   Unification Application

   4.The plaintiff to pay the defendants' costs of the defendants' chambers summons dated 10 February 2023, to be taxed if not agreed, payable forthwith.

ATTACHMENT A - QNI DISCOVERY CATEGORIES

CAT	DESCRIPTION	CHAMBER SUMMONS	CURRENT POSITION
6	All documents evidencing or recording any plans or proposals to re-open or sell the Refinery since 1 February 2016	Para 2(b) - The plaintiffs sought an order to relieve the plaintiffs from this discovery obligation unless the separate trial regime remained in place.	The plaintiffs' no longer press this paragraph of the summons given the orders to vacate the separate trial regime.
25	All documents directly relevant to the true and fair financial position, including full details of all assets and liabilities together with all financial statements, including balance sheets, profit and loss and cash flows and bank statements, for the period from 1 July 2015 to 30 June 2016 of each of the following persons and entities: (i)    Clive Palmer (incl valuations of the Palmer Sea Reef Golf Course) (ii)     Mineralogy Pty Ltd (iii)    QNI (iv)    QNR (v)      QNM (vi)    Palmer Petroleum Pty Ltd (vii)   China First Pty Ltd (viii) Palmer Leisure Coolum incl its subsidiary Coeur De Lion Investments Pty Ltd (ix)    Palmer Leisure Australia Pty Ltd (incl valuations of lots it owns in the Downing Street Community Titles Scheme) (x)      Palmer Leisure (xi)    Waratah Coal Pty Ltd (xii)   Fairway Coal Pty Ltd (xiii) Any other entity or company directly or indirectly controlled by Palmer during that period	Para 2(a) - The plaintiffs seek to be discharged from this obligation.	This category remains in issue between the parties. Pleading references: Defence [50(c)], [52(a), (b), (h), (i), (j), (k), (l)].
26	All documents directly relevant to the value of real property assets listed in schedules to the defence	Para 2(a) - The plaintiffs seek to be discharged from this obligation.	This category remains in issue between the parties. Pleading references: Defence Schedules 2 and 3.
31	All documents constituting any strategic plans, business plans or asset management plans (however described) of or relating to QNI created in the period from 1 January 2015	Para 2(b) - The plaintiffs sought an order to relieve the plaintiffs from this discovery obligation unless the separate trial regime remained in place.	The plaintiffs' no longer press this paragraph of the summons given the orders to vacate the separate trial regime.
39	All documents evidencing recording or relating to the value of the net assets of QNR as at each of: (i)   August 2015 (ii)    18 January 2016 (iii)   28 February 2016 (iv)   22 April 2016 (v)    Now	Para 2(b) - The plaintiffs sought an order to relieve the plaintiffs from this discovery obligation unless the separate trial regime remained in place.	The plaintiffs' no longer press this paragraph of the summons given the orders to vacate the separate trial regime.
40	All documents evidencing recording or relating to the value of the net assets of QNM as at each of: (i)    August 2015 (ii)     18 January 2016 (iii)    28 February 2016 (iv)    22 April 2016 (v)      Now	Para 2(b) - The plaintiffs sought an order to relieve the plaintiffs from this discovery obligation unless the separate trial regime remained in place.	The plaintiffs' no longer press this paragraph of the summons given the orders to vacate the separate trial regime.
41	All documents evidencing recording or relating to the value of the net assets of QNI as at each of: (i)    August 2015 (ii)     18 January 2016 (iii)    28 February 2016 (iv)    22 April 2016 (v)      Now	Para 2(b) - The plaintiffs sought an order to relieve the plaintiffs from this discovery obligation unless the separate trial regime remained in place.	The plaintiffs' no longer press this paragraph of the summons given the orders to vacate the separate trial regime.
42	Current liabilities of Palmer and his companies from the fourth quarter of 2013 to the fourth quarter of 2015 to which the RCB, if it had been paid, could have been applied or paid in whole or part satisfaction of those liabilities	Para 2(a) - The plaintiffs seek to be discharged from this obligation.	This category remains in issue between the parties. Pleading references: SOC [44].
43	Without limiting the preceding item, all documents directly relevant to: (i)      The liability of Palmer Petroleum to BGP the subject of proceeding CIV 1267 of 2018 (ii)     The proposed roaster oil to gas conversion project of QNI which is referred to in [85] of the affidavit of Daren Bruce Wolfe affirmed 17 November 2015 and filed in proceeding CIV 2368 of 2015 (the Wolfe affidavit) (iii)    The obligations of Waratah Coal and Fairway Coal to meet minimum annual expenditure commitments in order to maintain the mining tenements owned by Waratah Coal and Fairway Coal as referred to in [98] of the Wolfe affidavit (iv)    The matters referred to, directly or implicitly, in the letter dated 20 February 2018 from Alexander Law to Allens including 1) the liabilities that gave rise to the forced closure of the Palmer Coolum Resort 2) the liabilities related to the losses of various golf courses in QLD, 3) funds required to develop the Bora Bora Resort, 4) funds required to develop the proposed China First Coal project, 5) funds required to develop coking coal deposits in central Queensland owned directly or indirectly by Palmer or Mineralogy	Para 2(b) - The plaintiffs sought an order to relieve the plaintiffs from this discovery obligation unless the separate trial regime remained in place.	The plaintiffs' no longer press this paragraph of the summons given the orders to vacate the separate trial regime.

ATTACHMENT B - PP DISCOVERY CATEGORIES

CAT	DESCRIPTION	CHAMBER SUMMONS	CURRENT POSITION
28	All documents directly relevant to the true and fair financial position, including full details of all assets (including the real property listed in the schedules to the defence) and liabilities together with all financial statements, including balance sheets, profit and loss and cash flows and bank statements, for the period from 1 July 2015 to 30 June 2016 of each of the following persons and entities: (i)       Clive Palmer (including valuations of the Palmer Sea Reef Golf Course) (ii)      Mineralogy Pty Ltd (iii)      QNI (iv)      QNR (v)      QNM (vi)      Palmer Petroleum Pty Ltd (vii)     China First Pty Ltd (viii)      Palmer Leisure Coolum including its subsidiary Coeur De Lion Investments Pty Ltd (ix)      Palmer Leisure Australia Pty Ltd (including valuations of lots it owns in the Downing Street Community Titles Scheme) (x)      Palmer Leisure (xi)      Waratah Coal Pty Ltd (xii)     Fairway Coal Pty Ltd (xiii)      Any other entity or company directly or indirectly controlled by Palmer during that period	Para 2(a) - The plaintiff seeks to be discharged from this obligation.	This category remains in issue between the parties. Pleading reference : Defence [43A], [43B].
31	All documents directly relevant to the value or likely value of the oil and condensate that was, or was likely to be or indicated to be, associated with or within the scope of PPL 556 as at: (a)     1 July 2016; (b)     now.	Para 2(b) - The plaintiff sought an order to relieve the plaintiff from this discovery obligation unless the separate trial regime remained in place.	The plaintiff no longer presses this paragraph of the summons given the orders to vacate the separate trial regime.
32	All documents directly relevant to the value of the rights conferred by PPL 556 as at: (a)     1 July 2016; (b)     now.	Para 2(b) - The plaintiff sought an order to relieve the plaintiff from this discovery obligation unless the separate trial regime remained in place.	The plaintiff no longer presses this paragraph of the summons given the orders to vacate the separate trial regime.
33	All documents directly relevant to the value of the shares in Palmer Petroleum as at 1 July 2016.	Para 2(b) - The plaintiff sought an order to relieve the plaintiff from this discovery obligation unless the separate trial regime remained in place.	The plaintiff no longer presses this paragraph of the summons given the orders to vacate the separate trial regime.
44	All documents evidencing or recording current liabilities (at the relevant time) of Palmer and each company and entity directly or indirectly controlled by him in the period from fourth quarter of 2013 to second quarter of 2016 to which the Royalty Component B, if it had been paid as alleged in [25] and [26] of the SOC, could have been applied or paid in whole or part satisfaction of those liabilities	Para 2(a) - The plaintiff seeks to be discharged from this obligation.	This category remains in issue between the parties. Pleading references: SOC [38D], [38H].

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

IHN

Associate to the Honourable Justice Lundberg

29 JUNE 2023