Palmer v Parbery - [2017] QCA 238

[2017] QCA 238

COURT OF APPEAL

McMURDO JA

Appeal No 10657 of 2017
Appeal No 10441 of 2017
SC No 6593 of 2017

CLIVE FREDERICK PALMER Applicant

STEPHEN PARBERY
MICHAEL OWEN First Respondents

QUEENSLAND NICKEL PTY LTD (IN LIQ) Second Respondent
ACN 009 842 068

BRISBANE

MONDAY, 16 OCTOBER 2017

JUDGMENT

McMURDO JA: On 2 August 2017, the respondents filed an application for the grant of freezing orders over the assets of the appellants. The application is part heard. So far it has occupied four days of hearing in August and September. After the evidence had apparently closed, the judge, Bond J, made directions for written submissions and adjourned the hearing for oral argument over two days on Tuesday and Wednesday of this week.

On 29 September 2017, the appellants applied to adduce further evidence. In an ex tempore judgment, Bond J dismissed that application.

Two appeals were lodged against that order. In CA 10441/17, there are now 11 appellants. In the other appeal, CA 10657/17, Mr Palmer is the appellant. Mr Palmer now seeks to broaden the scope of his appeal, by arguing that the judge should recuse himself for apparent bias. I will return to that point.

The appeals were filed only last Thursday and Friday. At the same time the appellants filed the present applications seeking an order that the further hearing of the applications before Bond J be adjourned pending the determination of their appeals. No application has been made to his Honour for that adjournment, although, it seems, such an application was foreshadowed last week.

In essence, the applicants argue that their appeals will be rendered nugatory if this Court does not stay the further consideration of the case before the primary judge. In the written submissions for Mr Palmer, it is said that if the orders which are sought today are not granted, “the effect will be that the freezing orders will stay in place until final hearing and determination of the appeal, which is to deliver practically the same effect as if they were in place until the hearing of the plaintiffs’ claim.” It is submitted that the freezing orders would have serious and damaging impacts upon the appellants and other parties such as staff of some of the appellants’ businesses. It is said that damage will be done which could not be remedied in the event that the appellants’ appeal is ultimately successful.

These are submissions which would be expected in the event that the primary judge does decide to make the freezing orders which are sought. But, of course, that is not the present circumstance. At present, the appellants’ case is that without the further evidence which, they say, the judge should have admitted, their prospects of resisting the applications against them are diminished. It is against the risk that freezing orders will be made against them, unfairly without regard to that evidence, that they seek the protection of an order of this Court. The order which they seek is…

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 [2017] QCA 238
Case: [2017] QCA 238
Decision Date: 16 OCTOBER 2017

CaseChat Overview and Summary

The appeal in Palmer v Parbery concerns the refusal of the primary judge to admit further evidence in a case where the respondents had applied for freezing orders over the assets of the appellants. The Court of Appeal, led by McMurdo JA, was asked to decide whether to grant an injunction pending the outcome of the appeals against the interlocutory decision to exclude evidence. The appeals were brought by Clive Frederick Palmer and eleven other appellants against the primary judge's refusal to admit further evidence and against the denial of an application to adjourn the further hearing of the freezing order application.

The Court of Appeal considered the principles surrounding interlocutory appeals, particularly the discretion exercised by the primary judge in admitting evidence. It recognised the importance of the expeditious resolution of freezing order applications, given the significant public interest and the impact on numerous parties. The Court also noted that the appellants' argument was not clearly without merit, but emphasised the need for caution in reviewing discretionary decisions related to practice and procedure. The Court concluded that while the appellants' position might be prejudiced if the primary judge proceeded without the evidence, it was not irremediably so, as the appellants could still challenge the freezing orders on appeal.

The Court of Appeal dismissed the applications for an injunction pending appeal and ordered that the appellants pay the respondents' costs of the applications. This decision underscores the balance required between protecting the appellants' rights and ensuring the efficient administration of justice.

Orders