Palmer v Parbery - [2018] QCA 302

SUPREME COURT OF QUEENSLAND

CITATION:

Palmer v Parbery & Ors [2018] QCA 302

PARTIES:

In Appeal No 8282 of 2018:

CLIVE FREDERICK PALMER
(appellant)
v
STEPHEN JAMES PARBERRY AND MICHAEL OWEN IN THEIR CAPACITIES AS LIQUIDATORS OF QUEENSLAND NICKEL PTY LTD (CONTROLLER APPOINTED) (IN LIQ)
(first respondent)
QUEENSLAND NICKEL PTY LTD (IN LIQ)
ACN 009 842 068
(second respondent)

In Appeal No 9296 of 2018:

QNI METALS PTY LTD
ACN 066 656 175
(first appellant)
QNI RESOURCES PTY LTD
ACN 054 117 921
(second appellant)
QUEENSLAND NICKEL SALES PTY LTD
ACN 009 872 566
(third appellant)
CLIVE FREDERICK PALMER
(fourth appellant)
CLIVE THEODORE MENSINK
(fifth appellant)
IAN MAURICE FERGUSON
(sixth appellant)
MINERALOGY PTY LTD
ACN 010 582 680
(seventh appellant)
PALMER LEISURE AUSTRALIA PTY LTD
ACN 152 386 617
(eighth appellant)
PALMER LEISURE COOLUM PTY LTD
ACN 146 828 122
(ninth appellant)
FAIRWAY COAL PTY LTD
ACN 127 220 642
(tenth appellant)
CART PROVIDER PTY LTD
ACN 119 455 837
(eleventh appellant)
COEUR DE LION INVESTMENTS PTY LTD
ACN 006 334 872
(twelfth appellant)
COEUR DE LION HOLDINGS PTY LTD
ACN 003 209 934
(thirteenth appellant)
CLOSERIDGE PTY LTD
ACN 010 560 157
(fourteenth appellant)
WARATAH COAL PTY LTD
ACN 114 165 669
(fifteenth appellant)
CHINA FIRST PTY LTD
ACN 135 588 411
(sixteenth appellant)
COLD MOUNTAIN STUD PTY LTD
ACN 119 455 248
(seventeenth appellant)
EVGENIA BEDNOVA
(eighteenth appellant)
ALEXANDER GUEORGUIEV SOKOLOV
(nineteenth appellant)
DOMENIC MARTINO
(twentieth appellant)
v
STEPHEN JAMES PARBERRY AND MICHAEL OWEN IN THEIR CAPACITIES AS LIQUIDATORS OF QUEENSLAND NICKEL PTY LTD (CONTROLLER APPOINTED) (IN LIQ)
(first respondent)
QUEENSLAND NICKEL PTY LTD (IN LIQ)
ACN 009 842 068
(second respondent)

FILE NO/S:

Appeal No 8282 of 2018
Appeal No 9296 of 2018
SC No 6593 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeals

ORIGINATING COURT:

Supreme Court at Brisbane – [2018] QSC 176 (Bond J); [2018] QSC 178 (Bond J)

DELIVERED EX TEMPORE ON:

5 November 2018

DELIVERED AT:

Brisbane

HEARING DATE:

5 November 2018

JUDGES:

Fraser and Gotterson JJA and Boddice J

ORDER:

The appeals are dismissed with costs to be assessed on an indemnity basis.

CATCHWORDS:

COURTS AND JUDGES – JUDGES – DISQUALIFICATION FOR INTEREST OR BIAS – GENERALLY – where the primary judge made freezing orders against some of the appellants – where those orders included provisional findings of facts that might reasonably be argued to reflect adversely upon the credibility of an appellant – where the primary judge was then informed of the possibility of a recusal application – where the appellants did not file that application for over a month – where the appellants had argued that no orders, other than for the management of the recusal application, should have been made until the recusal application was determined – where both before and after the filing of the recusal application, but before the application was heard, the primary judge made case management orders for proceedings on the commercial list in the trial division – whether the primary judge should…

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.

Continue reading Palmer v Parbery

Details

AGLC: Palmer v Parbery [2018] QCA 302
Case: [2018] QCA 302
Decision Date: 5 November 2018

CaseChat Overview and Summary

The appeal was brought by the appellants against the respondents in relation to commercial litigation. The primary judge issued freezing orders against some of the appellants and made provisional findings of facts that might have been argued to reflect adversely on the credibility of an appellant. The primary judge was informed of the possibility of a recusal application but was not recused from the case. Before and after the filing of the recusal application, but before the application was heard, the primary judge made case management orders for proceedings on the commercial list in the trial division. The appellants argued that no orders, other than for the management of the recusal application, should have been made until the recusal application was determined. The appellants also argued that parties to litigation should not be deterred by the prospect of indemnity costs orders from appealing decisions on the ground of apprehended bias.

The court considered whether the primary judge should have abstained from making any case management orders pending a decision whether to recuse himself from the hearings. The court held that the primary judge did not err in making case management orders as there was no real chance of bias on his part. The court also considered whether indemnity costs should be awarded in light of the appellants' argument that the primary judge's decision and two interlocutory decisions by judges of appeal indicated that the appeals lacked merits. The court held that the appellants were not entitled to indemnity costs as the decisions were made with the benefit of a later judgment.

The appeals were dismissed with costs to be assessed on an indemnity basis.

Orders

Orders of the court

The appeals are dismissed with costs to be assessed on an indemnity basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Palmer v Parbery & Ors [2018] QCA 302
PARTIES:	In Appeal No 8282 of 2018: CLIVE FREDERICK PALMER (appellant) v STEPHEN JAMES PARBERRY AND MICHAEL OWEN IN THEIR CAPACITIES AS LIQUIDATORS OF QUEENSLAND NICKEL PTY LTD (CONTROLLER APPOINTED) (IN LIQ) (first respondent) QUEENSLAND NICKEL PTY LTD (IN LIQ) ACN 009 842 068 (second respondent) In Appeal No 9296 of 2018: QNI METALS PTY LTD ACN 066 656 175 (first appellant) QNI RESOURCES PTY LTD ACN 054 117 921 (second appellant) QUEENSLAND NICKEL SALES PTY LTD ACN 009 872 566 (third appellant) CLIVE FREDERICK PALMER (fourth appellant) CLIVE THEODORE MENSINK (fifth appellant) IAN MAURICE FERGUSON (sixth appellant) MINERALOGY PTY LTD ACN 010 582 680 (seventh appellant) PALMER LEISURE AUSTRALIA PTY LTD ACN 152 386 617 (eighth appellant) PALMER LEISURE COOLUM PTY LTD ACN 146 828 122 (ninth appellant) FAIRWAY COAL PTY LTD ACN 127 220 642 (tenth appellant) CART PROVIDER PTY LTD ACN 119 455 837 (eleventh appellant) COEUR DE LION INVESTMENTS PTY LTD ACN 006 334 872 (twelfth appellant) COEUR DE LION HOLDINGS PTY LTD ACN 003 209 934 (thirteenth appellant) CLOSERIDGE PTY LTD ACN 010 560 157 (fourteenth appellant) WARATAH COAL PTY LTD ACN 114 165 669 (fifteenth appellant) CHINA FIRST PTY LTD ACN 135 588 411 (sixteenth appellant) COLD MOUNTAIN STUD PTY LTD ACN 119 455 248 (seventeenth appellant) EVGENIA BEDNOVA (eighteenth appellant) ALEXANDER GUEORGUIEV SOKOLOV (nineteenth appellant) DOMENIC MARTINO (twentieth appellant) v STEPHEN JAMES PARBERRY AND MICHAEL OWEN IN THEIR CAPACITIES AS LIQUIDATORS OF QUEENSLAND NICKEL PTY LTD (CONTROLLER APPOINTED) (IN LIQ) (first respondent) QUEENSLAND NICKEL PTY LTD (IN LIQ) ACN 009 842 068 (second respondent)
FILE NO/S:	Appeal No 8282 of 2018 Appeal No 9296 of 2018 SC No 6593 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeals
ORIGINATING COURT:	Supreme Court at Brisbane – [2018] QSC 176 (Bond J); [2018] QSC 178 (Bond J)
DELIVERED EX TEMPORE ON:	5 November 2018
DELIVERED AT:	Brisbane
HEARING DATE:	5 November 2018
JUDGES:	Fraser and Gotterson JJA and Boddice J
ORDER:	The appeals are dismissed with costs to be assessed on an indemnity basis.
CATCHWORDS:	COURTS AND JUDGES – JUDGES – DISQUALIFICATION FOR INTEREST OR BIAS – GENERALLY – where the primary judge made freezing orders against some of the appellants – where those orders included provisional findings of facts that might reasonably be argued to reflect adversely upon the credibility of an appellant – where the primary judge was then informed of the possibility of a recusal application – where the appellants did not file that application for over a month – where the appellants had argued that no orders, other than for the management of the recusal application, should have been made until the recusal application was determined – where both before and after the filing of the recusal application, but before the application was heard, the primary judge made case management orders for proceedings on the commercial list in the trial division – whether the primary judge should…