Palmer v The State of Western Australia

[2020] HCATrans 197

[2020] HCATrans 197

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B52 of 2020

B e t w e e n -

CLIVE FREDERICK PALMER

Plaintiff

and

THE STATE OF WESTERN AUSTRALIA

Defendant

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE BY VIDEO CONNECTION

ON MONDAY, 16 NOVEMBER 2020, AT 2.11 PM

Copyright in the High Court of Australia

MR C.F. PALMER appeared in person.

MR J.A. THOMSON, SC, Solicitor‑General for the State of Western Australia:   May it please the Court, I appear with MS J.E. SHAW for the defendant.  (instructed by State Solicitor’s Office (WA))

HIS HONOUR:   I should perhaps start with you, Mr Solicitor.  I have had the chance obviously of reading your written submissions and also those of the plaintiff.  Is there anything that the defendant wishes to add orally to what has already been said in writing in support of its application to strike out?

MR THOMSON:   The main essence of it is set out in our written submissions.  There are certain instances where we have said that paragraphs are repetitious of other matters that have been alleged previously.  I am able to provide you with the precise paragraphs that are replicated, if that would be of assistance, but maybe that is something that is appropriate at a particular time.

HIS HONOUR:   We might go to those, I think, immediately.  There are only about three of them, are there not?

MR THOMSON:   Perhaps that is so, although I think there might be slightly more.  But, your Honour, can I point out that paragraph 104, for example, is specifically – replicates much of what is said in paragraph 86.

HIS HONOUR:   Yes.

MR THOMSON:   Paragraph 113 replicates much of what is already pleaded in paragraph 90(c).

HIS HONOUR:   Yes.

MR THOMSON:   Paragraph 114 pleads an inconsistency which is also pleaded in paragraph 92(a).

HIS HONOUR:   Yes.

MR THOMSON:   Paragraph 116 replicates much of what is pleaded in paragraphs 70, 75, 76 and 77.

HIS HONOUR:   Yes.

MR THOMSON:   Paragraph 117 replicates what is pleaded already in paragraph 68.

HIS HONOUR:   Yes.

MR THOMSON:   Paragraph 118 replicates what is pleaded in paragraph 91.  Paragraph 120 is very similar to paragraph 90(a) to (c).

HIS HONOUR:   Is the attack on 120 one of repetition or that it is the consequence of Mr Palmer not being a party to the proceedings referred to?

MR THOMSON:   Certainly it is the fact that he is not a party, but I thought I should also point out that it is already pleaded in paragraph – sorry, much of what is pleaded about the lack of a sufficient connection, that it impermissibly impairs the…..State or is contrary or repugnant in a Chapter III sense to be also pleaded in paragraph 90(a), (b) and (c).

HIS HONOUR:   Just a moment, please.

MR THOMSON:   Paragraph 128a appears to replicate much of what is already in paragraphs 71 and 72 and 128b replicates much of what is in paragraph 68, likewise so does paragraph 131a.  There seems to be some correspondence between paragraph 131b and what is already pleaded in paragraphs 86 to 87, although ‑ ‑ ‑

HIS HONOUR:   Just hold for a moment, please.  Yes, thank you - I beg your pardon, I got to 131, you jumped ahead of me.  Could you take the next after 131, please?

MR THOMSON:   Sure.  I referred to 131a and then I was just referring to 131b which replicates much of what is already in 86 and 87, although with greater ambiguity because it refers to aspects of the assumption of the rule of law that ‑ ‑ ‑

HIS HONOUR:   Yes.

MR THOMSON:   Paragraph 132 seems to be very similar to paragraph 88.

HIS HONOUR:   Yes.

MR THOMSON:   I think that is probably all that I needed to specifically say about the replication point.

HIS HONOUR:   Thank you.  Is there any other aspect of the written submission on which you wish to say anything, Mr Solicitor, or are you content to leave it on the basis of the writing?

MR THOMSON:   I am content to leave it on the basis of the writing, thank you, your Honour.

HIS HONOUR:   Thank you.  Mr Palmer.

MR PALMER:   Yes, your Honour.  If I may.  As a self‑represented litigant I have taken steps to ensure my opponent is not prejudiced at all by me having conduct of these proceedings.  But before the matter proceeds any further, I would like to raise a few issues which are troubling me.

Section 11(3) of the amending Act prohibits any proceeding from being brought after 13 August 2020 which are in any way connected with the disputed matter.  Those are obviously very broad words and produce some unusual consequences.  Firstly, in light of that prohibition, how can the defendant act in a manner inconsistent with its own legislation by bringing an interlocutory application in a proceeding, which according to that legislation should not even exist.

Secondly, if the Court accepted the defendant’s submission regarding parts of my pleading that no cause of action is disclosed…..in the ordinary course be offered an opportunity to re‑plead or more properly make out a cause of action.  By section 11(3) and 19(3) of the amending Act, I would not be permitted to do so either on the basis that the proceeding does not exist to begin with, or the basis by articulating a new cause of action I would be bringing a new proceeding which is prohibited under section 11(3) of the amending Act and that no proceeding may be brought against the State under section 19(3) of the amending Act.  Where one question in the proceeding is effectively whether that proceeding itself may be brought I submit the validity of sections 11(3) and section 19(3) of the amending Act need to be determined before the defendant’s strike‑out action can be considered at all.

HIS HONOUR:   Hold there for a moment, please.  Mr Palmer, on that aspect of the effect of section 19, had you gone as far on that point as you wanted to go?

MR PALMER:   There was just one more point, your Honour, if I can make it.  …..conclusion is - my fear is that by these proceedings, in the event of a successful strike‑out of a claim, will operate as a bar to me to pleading my case and I will effectively be denied natural justice.  I was going to suggest, your Honour, in practical terms this means that any arguments by the defendant to the effect that parts of my amended statement of claim cannot succeed or should otherwise be struck out or disregarded should be determined at the same time as the validity of the Act is determined and should not be determined on an interlocutory basis.  In the meantime, the defendant can file a defence.  I think that is the main part

of my first submission and I go further to say if the matter is to proceed, your Honour.

HIS HONOUR:   Yes, thank you.  I might at this point hear from the Solicitor‑General as to what he says concerning the effect of section 19 on these proceedings.  Mr Solicitor?

MR THOMSON:   In relation to section 19 we do not say that it has any bearing upon a constitutional validity challenge.

HIS HONOUR:   Why – because it is not a proceeding of the kind described in subsection (3)?

MR THOMSON:   That is correct because – well, a number of points.  First, there was some question raised about whether or not we could bring an interlocutory action.  Certainly that is not a proceeding which is made against the State.  Our own interlocutory proceeding is not within subsection (3) but, in any event, a challenge to the constitutional validity of the legislation is not a proceeding of the type described in subsection (3).

HIS HONOUR:   With the result that neither this proceeding nor your application to strike out is within section 19 of the amending Act.

MR THOMSON:   That is correct. 

HIS HONOUR:   Yes.

MR PALMER:   Your Honour?

HIS HONOUR:   Just a moment.  Was that all you wished to say, Mr Solicitor?

MR THOMSON:   Yes.

HIS HONOUR:   Thank you.  Yes, Mr Palmer.

MR PALMER:   If we have a look at 11(3)(b)(i) of the amendment Act, your Honour, just to quote – sorry, section 11(3)(b)(iii).

HIS HONOUR:   Yes.

MR PALMER:   You will see there that it is:

in any other way connected with a disputed matter.

We would submit that these proceedings are connected with a disputed matter because they are subject to the Act which goes to the validity of those sections which deny us the ability to pursue our dispute.  So we certainly feel that this is connected with the disputed matter.  We think that the whole proceeding needs to be heard with the main proceeding first where we can determine the validity of these sections to see whether we can proceed, otherwise by the operation of those provisions we think we will be barred from re‑pleading and denied a chance to present our case, your Honour.

HIS HONOUR:   Very well. 

In general answer to the defendant’s application to strike out various sections of the plaintiff’s amended statement of claim, the plaintiff submits that the effect of section 19 of the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Amendment Act 2020 (WA) is either to prohibit the State’s application to strike out sections of the amended statement of claim or, alternatively, if that application were heard would have the effect of preventing the plaintiff, if leave were granted, re‑pleading any of the impugned sections of the amended statement of claim.

Section 19(1) provides in substance that on and after the commencement date of the amending Act the State has and can have no liability to any person that would be in respect of the loss or other matter or thing that is connected with a protected matter as defined.  Subsection (3) provides that:

On or after commencement, no proceedings can be brought, made or begun against the State to the extent that the proceedings are or would be –

for various purposes therein defined, including in respect of something which in any other way is connected with a protected matter. 

I do not consider that section 19 applies either to this proceeding which was instituted before commencement, or to the defendant’s application to strike out sections of the plaintiff’s statement of claim because even if it be considered a proceeding, it is not one against the State.  I will therefore entertain the defendant’s application to strike out sections of the amended statement of claim and now hear the plaintiff in argument in opposition to it.

Yes, Mr Palmer.

MR PALMER:   Thank you, your Honour.  I wish to rely on my written submissions and my affidavit, both dated 29 October 2020, filed 30 October 2020, your Honour.

HIS HONOUR:   Yes.

MR PALMER:   My submissions have been limited by not knowing until these earlier submissions by the defendant the matters the defendants complain of in the particularity which enabled me to further respond in my written submissions, nor does it provide me with a time to properly consider those issues, having just been raised this morning.

By way of an overall summary, I filed an amended statement of claim which clearly achieved the essential functions of identifying the issues and I argued them, so informing the defendant of the case it has not met and has to meet.  For the reasons mentioned in my written submissions the defendant’s complaints about my amended statement of claim I believe are unduly technical and in some cases entirely misconceived.  Even if considered that some aspects of my amended statement of claim could have been better…..striking out parts of my pleading should not be taken in the particular circumstances of this case, particularly when such steps could effectively deny me natural justice to be heard.

Instead, as I have previously submitted, your Honour…..rejected the appropriate course would be, in my respectful submission, that the defence amendment be filed to the amended statement of claim.  I then would submit that the defendant’s strike‑out application should be dismissed without further hearing, your Honour.

HIS HONOUR:   Very well.  Mr Palmer, can I ask you a couple of specific questions?

MR PALMER:   Yes, your Honour.

HIS HONOUR:   Some of the defendant’s complaints – could I start at paragraphs 95A, 95B and 95D of your amended statement of claim where you plead in substance that inconsistency between provisions of the amending Act and provisions of the Income Tax Assessment Act, Tax Administration Act and Corporations Act are such as to render the amending Act invalid.

MR PALMER:   Yes, your Honour. 

HIS HONOUR:   One of the complaints levelled against that series of allegations is its lack of specificity as to the provisions of the amending Act which you contend are inconsistent with the identified Commonwealth legislation and some indication as to in what way you say there is actionable inconsistency.  It seems as present advised that there is substance in that complaint.  Given time, would you be able to provide the degree of specificity which would enable one to say what exactly is your complaint of inconsistency?

MR PALMER:   Yes, your Honour, I think so.  I recall I wrote to the State in between the last hearing setting out various particulars that they requested.  Those particulars were really extracts from my first statement - from the original statement of claim which the defendant complained about and so they were deleted.  But they were then re‑provided in a letter and I can further expand upon that letter if given time, your Honour.

HIS HONOUR:   No, there is no need for that.  I just wanted to ask what the position is.

MR PALMER:   Yes.

HIS HONOUR:   The defendant also says that paragraph 95C suffers from the same defects because, although you allege that provisions of the amending Act purport to cover the field or alter, impair and effect rights and duties as between Zeph Investments Pte Ltd and the Commonwealth, you do not provide any particularity as to what you say the inconsistencies are and how it is that you say that they arise.  I ask you once again, given some time would you be able to do that?

MR PALMER:   Yes, your Honour.

HIS HONOUR:   Very well.  Can I go now, please, to paragraph 104 of the amended statement of claim about which one of the complaints is that it does no more than replicate, in substance, paragraph 86.  At first blush, that appears to be correct.  Is there any answer to that?

MR PALMER:   If your Honour could bear with me just ‑ ‑ ‑

HIS HONOUR:   Certainly.

MR PALMER:   It is paragraph 106, is it?

HIS HONOUR:   Paragraph 104 and it is said to replicate 86.

MR PALMER:   Okay, I will just have a quick look. I guess, your Honour, this is a background to the pleading as it developed in relation to me as an individual. I think it leads up to my claim in relation to section 75(iv) under the Constitution that a dispute of a matter between a citizen of one State should be heard by the High Court in its ordinary jurisdiction or by a Federal Court and saying that it is just a background fact which is meant to be helpful to the defendant rather than to hinder him, your Honour.

HIS HONOUR:   I see.  Paragraph 113 is said to be offensive because it replicates 90(c).

MR PALMER:   Paragraph 113 – I think 113 goes further than 90(c).  It is meant to be more helpful to the defendant in understanding, rather than just saying that the matter is repugnant to Chapter III.  We try to explain why it is repugnant because it confers a judicial power over federal matters which is not a Chapter III court, so it would be going a little bit further than the general to provide more assistance to the defendant, your Honour.

HIS HONOUR:   Yes, I see.  Could you look now, please, at paragraph 120.  One of the complaints made about that is that it is very similar to, if not the same as, 90(a) and 90(c).

MR PALMER:   Again, my comments in relation to 90(c) previously, your Honour, is…..I think.One deals with the extinguishment of orders, your Honour, and the other one deals with the extinguishment of the proceeding, which are different things I think, your Honour.  So 120a talks about terminating proceedings pending in a Supreme Court, the other one talks primarily about orders, I think, extinguishing orders made by – so all proceedings in the Supreme Court does not refer to extinguishment of proceedings but the fact that the orders were made in proceedings in a Supreme Court of another State.

HIS HONOUR:   Paragraph 89(a), which is what feeds paragraph 90, alleges that the amending Act purports to “terminate proceedings BS8766/2020”, which are the arbitration enforcement proceedings, but paragraph 109 appears to say the same thing, that it purports to terminate those proceedings, or am I missing something?

MR PALMER:   Sorry, your Honour, I was looking at 120.

HIS HONOUR:   Paragraph 120 is fed by 119.

MR PALMER:   Yes.

HIS HONOUR:   So one really looks at 89 and compares it with 119 to see whether there is any difference between 90 and 120 and there does not appear to be.

MR PALMER:   Well, I guess there are two points that we are trying to cover, your Honour.

HIS HONOUR:   Yes.

MR PALMER:   The issue of the terminating of the orders is one thing, one thing that is impermissible and the second thing is the terminating of the proceedings themselves.  So I think 89(b) talks about the extinguishment of the relief in the proceedings, your Honour, and 120 we are saying the power does not extend to terminating the proceedings pending in a State court of another State.  At any rate there is a similarity, I admit, your Honour.

HIS HONOUR:   Yes, very well.

MR PALMER:   It was not meant to disadvantage the other side at all, just to make it ‑ ‑ ‑

HIS HONOUR:   No, I understand that.  Yes, thank you for everything.  Mr Solicitor, there was one further question – two, actually – I wanted to ask you.  First, I think I said earlier on that there were two reasons to conclude that section 19 was not inimical to the determination of this application, the first being that the proceeding overall was instituted before the commencement of the amending Act.  On reflection, that is not correct, is it?

MR THOMSON:   No, that is not right and I was going to draw that to your Honour’s attention.

HIS HONOUR:   Then I should withdraw what I said about that and say instead that I do not consider that section 19 prohibits the application now made by the defendant to strike out the statement of claim or to prevent the plaintiff re‑pleading any paragraph that might be so struck out for the reason that the application is not a proceeding against a State within the meaning of section 19.

Mr Solicitor, the second thing I wanted to ask you about was the last complaint that is made about the statement of claim insofar as it is contended that because it refers to statements that were the subject of parliamentary privilege it is embarrassing or otherwise objectionable.  This is the attack on paragraphs 138 to 140 of the amended statement of claim.

MR THOMSON:   Yes, your Honour.

HIS HONOUR:   I am not too sure what is meant by that.  Presumably the reference to the parliamentary debates is by way of reference to extrinsic materials, the better to infer the purpose of the legislation and thus to infer, as is contended, that its purpose is to discriminate against the plaintiff because he is a resident of Queensland, whereas he would not be so discriminated against if he were a resident of Western Australia.  I pass no judgment on that argument, it is not for me to do so, but what is wrong with that allegation in a pleading sense?

MR THOMSON:   Well, there are two reasons why the particulars of paragraph 139 are not adequate and ought to be struck out.  The first is that the purpose of an enactment is to be obtained from the terms of the enactment and there are many cases in this Court that demonstrate that purpose is to be derived from the language used by Parliament, not by individual Members of Parliament in debates. 

The second is that the reliance that has been placed upon the parliamentary debates for the determination of purpose needs to rely upon the truth of what is stated in those debates in order to establish purpose and that also would be contrary to parliamentary privilege and I think we have given some references to the various cases – Article 9 of the Bill of Rights and so forth.

There is a third point and that is more generally about section 117 and that it does not – what is pleaded does not demonstrate discrimination against the plaintiff in respect of being a resident of a different State and, therefore, the pleading is also inadequate for that reason.  But the two points that are made about the way in which purpose is discerned are relevant to paragraph 139 reference to the debates.

HIS HONOUR:   I take the plaintiff in paragraph 139 to allege that the purpose of the Act is to discriminate against him because he is a Queenslander rather than West Australian.  That appears to be a clear allegation.  Put aside whether it is well‑founded or not, it is clearly enough expressed, surely?

MR THOMSON:   Yes, but I suppose it goes back to my initial point which is that the purpose of an enactment is to be determined by reference to the language that had been adopted by Parliament, not by reference to what might be said in the debates by an individual member and that in order to rely upon those particular debates it was necessary to attribute to them the truth of what was said and then…..to rely upon all the truth of what was said in Parliament those particular matters that are recorded in the debates and that is contrary to Article 9 of the Bill of Rights and various cases that have been mentioned.

HIS HONOUR:   Might not the parliamentary debates be relevant under section 19(2)(h) to the Interpretation Act in discerning the purpose of legislation?

MR THOMSON:   To the extent that what is said – I should also say there is a third – perhaps a procedural matter and that is we cannot actually ascertain from the references how any of the matters there are actually relevant to what is alleged because the references appear to…..confusing. 

But leaving that aside, in the sense that things that are debated in Parliament might be relevant to ascertaining purpose, they are relevant to ascertaining the purpose of the legislation in words used in the legislation, but there is nothing pleaded in terms of the words used in the legislation that would allow the Court to determine that there has been discrimination in a sense that is relevant to section 117. 

So the references to parliamentary debates might be used to solve ambiguity, but you need to hang that ambiguity off particular words.  There is nothing that is pleaded that would allow this Court to understand any particular words that need to have any ambiguity resolved about them because the starting point, of course, is the text that has been used by Parliament.

HIS HONOUR:   Yes, I see.

MR THOMSON:   Can I also before your Honour again say that there are two other matters that we have raised with Mr Palmer that might be helpful, if I were to make some submissions about.

HIS HONOUR:   Yes, thank you.

MR THOMSON:   Does your Honour wish to hear from me now, or in ‑ ‑ ‑

HIS HONOUR:   Now, please.

MR THOMSON:   In relation to paragraphs 95A, 95B and 95D, the…..Mr Palmer referred to which provided some degree of particularity was annexed to an affidavit which was sworn on 30 October 2020, which is before the Court.  The relevant material, or particulars, are at pages 18 through to 22 of that affidavit, I think – maybe it is 21, 18 to 21.  We would say, with respect, that the matters that are set out in those particulars, to the extent that they are to be regarded as having been supplied in relation to those paragraphs, are inadequate.  If your Honour has those in front of you I can explain why those are inadequate.

HIS HONOUR:   Just a moment, please.  What is the number of the exhibit?

MR THOMSON:   I apologise – it is…..an affidavit.  It in fact needs to be read – I do not know if it has been submitted as yet, but it was filed by Mr Palmer and we were happy for it to be exhibited.

HIS HONOUR:   Yes.  This is Mr Palmer’s affidavit of 30 October 2020?

MR THOMSON:   That is correct.

HIS HONOUR:   Yes.  I will take that as read.  Now, you were about to take me to a letter which was one of the exhibits to it.

MR THOMSON:   Relevantly, annexure 1 to a letter dated – the letter starts on page 14 and it is dated 23 October and the letter refers to further and better particulars.

HIS HONOUR:   Yes.

MR THOMSON:   Those are contained at pages 18 and following in a table.

HIS HONOUR:   Just a minute – this is exhibit CFP‑04 to the affidavit of Mr Palmer of 29 October 2020.  Yes, I have the table, thank you.

MR THOMSON:   You will see there in the left‑hand column it says “Paragraph of ASOC filed 13 October 2020, [95A]‑[95B] and [95D]”.

HIS HONOUR:   Yes.

MR THOMSON:   There is a reference to a previous version of the statement of claim and then it provides the text of particulars in respect of the areas of ambiguity where it says that there are some inconsistencies between the Commonwealth legislation in the amending Act.  In relation to the first element, which is the indemnity provisions and the security provisions being inconsistent with the Corporations Act, the Bankruptcy Act and the Personal Property Securities Act, it all hinges around particular a which is – particular a says that:

The right of the State to have a loss or liability to a third party paid whilst at the same time not paying the State’s liability to such third party gives the State a priority over other creditors (including Federal authorities and other State authorities) in the nature of a fixed (or fixed and floating) charge over that asset. 

All of the rest of that set of particulars relates to the nature of there being a charge.  With respect, we do not accept that there is any credible basis upon which it can be suggested that there is something in the nature of a fixed or fixed and floating charge that is generated.

HIS HONOUR:   Yes.

MR THOMSON:   The next, if you like, row which moves on to the indemnity provisions being inconsistent with Commonwealth laws in the premises of 203 and 204, which I think is a reference to previous paragraphs of the prior statement of claim, it is said that:

These provisions are inconsistent with the following provisions of Commonwealth legislation:

k.        Corporations Act 2001 (Cth) The liability of Mr Palmer is said by the Attorney General of the State to apply because he is a “director” of the companies that were the applicant parties to the underlying arbitrations. This significantly alters the Commonwealth corporations power, which does not recognise imposition of liability of directors in such circumstances.

Well, with respect, it is not clear to us how anything that might be said by the Attorney‑General of the State, if it in fact was said, would create the inconsistency that is alleged and the Commonwealth taxation laws – it says:

The indemnity provisions are also directed towards named individuals or entities in a manner not consistent with or provided for in the Taxation Administration Act 1953 (Cth) or Income Tax Assessment Act 1997 (Cth) or pursuant to any test laid down by that legislation and amount to impermissible arbitrary exaction Air Caledonie International v Commonwealth –

With respect, again there is no basis to invoke Air Caledonie v Commonwealth and to suggest that there is an impermissible arbitrary exaction and so that particular does not assist.  There are no particulars given of the Bankruptcy Act or the Personal Property Securities Act.  Then if you go to the next page it talks about:

By this provision, the State has no liability with respect to the disputed matters and the definition of “liability” extends to liability under laws of the Commonwealth. 

Then it says that:

The Amendment Act extinguishes any liability the State could have in respect of remedies available to any Court exercising federal jurisdiction under Chapter 5, Part 5.2 in respect of Australian Consumer Law –

With respect, that is entirely hypothetical and it is not entirely clear what it means in any event.  The same applies for the following comments about the Corporations Act and Competition and Consumer Act.  The same point applies also in relation to the next row and paragraph 3a, b, c and d.  The same point about hypothetically also applies for the following row about criminal liability.  So, with respect, the type of particulars that Mr Palmer has provided to this point are entirely inadequate and would not cure the difficulties of the pleading.

Can I then also refer to the paragraphs that deal with the duplication of what has already been pleaded in the Zeph pleadings in B57.

HIS HONOUR:   Which paragraph have you gone to now?

MR THOMSON:   Paragraphs 12A to 12E and 95C.

HIS HONOUR:   Yes.

MR THOMSON:   Paragraph 95C in one paragraph pleads that: 

The Amending Act, to the extent that it purports to cover the field, or alternatively alters, impairs, or detracts from the rights and duties of Zeph and/or the Commonwealth in respect of any arbitration by Zeph against the Commonwealth –

is invalid because of an inconsistency with the International Arbitration Act.  Now, with respect, that is an attempt to put into one paragraph the entirety of the pleading contained in B57, B57 being a claim made by Zeph which is also before this Court in respect of the company wholly owned, it is alleged, by Mr Palmer.

So to allow that pleading to stand in this form in this case has the difficulty that it is completely devoid of a factual basis, as is illustrated by what has been pleaded in a number of pages, 30 pages or more in the Zeph pleadings in B57.  It is not as if Mr Palmer will be deprived of the opportunity for that claim to be ventilated because it is being pursued in the Zeph pleadings and, with respect, he ought not to be allowed to re‑plead that because, in substance, it is a duplication of a claim made by a different entity and which has been fully pleaded in a case where Zeph is represented by Mr McHugh of senior counsel.

HIS HONOUR:   I suppose, putting aside the defects in pleading form, to which you allude, there would perhaps be justification in alleging that the

Act is invalid because of what it purports to do to Zeph because the Act does, in some respects, affect Mr Palmer’s personal interests and so if he can demonstrate it is invalid because of what it does to Zeph, it is in his interests to do so, is it not?

MR THOMSON:   Well, again I say that in relation to Zeph, we have raised and argued with reasonable strength to this point, that the matters that are raised in the pleadings that Zeph has alleged create hypothetical and advisory questions which the Court is not in a position to answer.  Now, if that be true in relation to Zeph, it is doubly true in relation to Mr Palmer.

Part of the difficulty about the way in which this pleading is formulated is that it does not permit the understanding of the particular arbitrary claims that Zeph might have and how they are impacted or reflected by the amending Act and that is a difficulty in respect of claims which are made by an entity which is not party to these proceedings, that is to say Zeph, against the Commonwealth, which is not a party to any proceedings and, in those circumstances, it invites all of the difficulties of the Zeph proceedings to be incorporated into these proceedings then there cannot be a proper pleading of the factual basis.

HIS HONOUR:   I understand.  Very well.

MR THOMSON:   Those are the two matters that I sought to raise in addition to the things that I have said already.

HIS HONOUR:   Mr Palmer, is there anything that – I beg your pardon.

MR THOMSON:   Sorry, I just wondered if I needed to read our affidavit formally, that is the affidavit of Ms Tan sworn on 23 October 2020.

HIS HONOUR:   The affidavit of Ms Tan sworn 23 October 2020 to be taken as read.

MR THOMSON:   Thank you.  Mr Palmer, is there anything you wish to say in reply to what the Solicitor has said?

MR PALMER:   Yes, your Honour, if I may.  Firstly, let me assure the Court that I am happy to provide further particulars if that could be helpful to the defendant in further understanding our claim.  I would also point out to the Court that this hearing is not to discuss the merits of the claim, but to look at the pleading.  I feel that the defendants are…..went largely through the merit of the various issues.  For example, if we go back to the one about the crime, I think, where it talks about the particulars there – [217]‑[218] on page 21 on my affidavit, your Honour.

HIS HONOUR:   Yes.

MR PALMER:   It really says:

This is inconsistent with Commonwealth laws providing for the criminal liability and the powers of the Director of Public Prosecutions to carry out his or her functions –

Then it says the “Criminal Code”.  Now, the amending Act itself exempts people from the criminal law.  We interpret that as being exempt from the Criminal Code 1995 (Cth). We do not know what, if any, crimes they have committed or what particulars they need to say, what sections they want to be exempted from. There are no particulars given to us in the legislation. It just says they are exempt from the criminal law under the Commonwealth’s entire Criminal Code.  So how do you provide a particular about something you do not know what they are seeking to exempt themselves from, but they are in fact exempting themselves from?

So I think that the pleading reads what it is meant to say, that you have exempted yourself from the Criminal Code 1995 (Cth) and that is inconsistent with the Code itself. It is as simple as that. Likewise, on the other issues, as I said, I did not want to waste the Court’s time, I am happy to provide those particulars.

As it comes down to Zeph, I am required to provide an indemnity to the State under this legislation.  So any section of the Act which works in such a way to find the whole Act as being invalid is an advantage to me and certainly one that I have an interest in.  There are more particulars.  If we can be helpful to the defendant, we certainly will be.

In respect of the Zeph matter, I think that is highly relevant to me and to my proceeding and that is why I have pleaded the matter and I think from the submission the Court has heard, the defendant had very clear understanding of what this is about and this is not a hypothetical matter, your Honour, as the defendant well knows, that I would inform the Court by – I obviously cannot give evidence about what claims have been made against the Commonwealth and are already on foot under like procedures, but it is not hypothetical. 

So I welcome the opportunity and to be as helpful as I can to the defendant to provide more particulars and more rationale but in some cases, such as the Criminal Code, if you are exempting yourself from the entire criminal law it is the entire Criminal Code of the Commonwealth.  It is as simple as that, your Honour.

HIS HONOUR:   Thank you.

MR THOMSON:   Your Honour, can I ‑ ‑ ‑

HIS HONOUR:   Yes, Mr Solicitor.

MR THOMSON:   I was just going to seek leave to respond to what is said about the Criminal Code.  It is consistently said that it is suggesting that there is some form of entire exemption from the Criminal Code.  The terms of the legislation clearly do not permit that.  The terms of the legislation are in fact about the passage – about protected matters which relate to the passage of legislation through a State Parliament.

HIS HONOUR:   Mr Solicitor, I should say, I think, that as the pleadings stand – and I do not think that Mr Palmer disputes this – one cannot say ex facie which provisions of the amending Act are said to be inconsistent with provisions of the Commonwealth Act, nor is there, as yet on the face of the pleading, any particulars of what it is within those nominated provisions of the amending Act which is said to be inconsistent with the nominated provisions of the Commonwealth legislation.

Mr Palmer, as I understand it, seeks the opportunity to provide further particulars which would do that.  I need to consider whether that would be an adequate response.  That is where I think we are at the moment.

MR THOMSON:   Yes, thank you, your Honour.  Perhaps I should just point out, of course, that the limit of the protection relates to protected matters, protected matters relate to the passage of this legislation through a State Parliament, and so that is something for your Honour to take into account in terms of the right of ever being able to provide – Mr Palmer ever being able to provide relevant particulars.

HIS HONOUR:   Could I ask you, Mr Solicitor, where this matter is up to, when it is intended to be heard by the Full Court and, therefore, how much time there remains to get these pleadings into order?

MR THOMSON:   There was a directions hearing before her Honour the Chief Justice this morning in relation to B57.  In that directions hearing, there was a question as to whether B57 ought to be heard directly after a joint hearing of B52 and B54 and that was suggested on behalf of Zeph by Mr McHugh – I suggested that it should be only heard after the determination of B52 and B54. 

In relation to the timing of hearings, certainly her Honour, I think, suggested that it was unlikely that it would reach the – either B52 or B54 could be accommodated in the February hearings and perhaps even the March hearings.  That was my understanding of what her Honour said in this morning’s directions hearing, the transcript will bear me out.

The position in relation to B54 is that there has been a special case that has been provided by the plaintiffs in that matter and that is being considered at the moment.  In relation to B57, orders were made this morning for the provision of a special case by the end of January so that whichever way the Court determines to hear the matters and whether it is with a gap or not between the determination of B52 and B54 and B57, there will be a special case prepared.

I think that what is contemplated is that B52 and B54 should be heard together because there is a very substantial crossover between matters that are alleged in each of those proceedings and in fact your Honour will know that there is an almost word‑for‑word duplication in B52 of the matters that have been alleged on behalf of the companies, International Minerals and Mineralogy, in a pleading that is being settled by Mr Jackson, obviously one of the most…..constitutional law barristers in the country and there has been no point taken about the substance of what is alleged in B54.

What has effectively happened is that Mr Palmer, having taken all of those matters and incorporated them into his B52 proceedings has sought to add his own grounds in circumstances where they are not particular except for three paragraphs relating to the indemnity provisions and in circumstances where no doubt he has provided instructions to Mr Jackson to consider those matters on behalf of the companies which he formally owns.

Clearly, there is a common sense about having B52 and B54 heard together, but the addition of the various matters that Mr Palmer has added creates a difficulty in the sense that those things need to be sorted out before either of the hearings can proceed.

HIS HONOUR:   Yes, I see.  So there is a degree of urgency in getting this B52 proceeding into order?

MR THOMSON:   It is a matter for the plaintiffs, of course, but it is correct to think that B54 would proceed perhaps more quickly if it were not tied down or burdened by the type of additional allegations that have been made in B52.

HIS HONOUR:   Yes.  Mr Palmer, I have not yet made up my mind completely as to how to dispose of this application.  My inclination is to think it will be different as between some of the complaints.  It is possible I might conclude that I would give you leave to re‑plead some of the paragraphs that have been questioned.  How long would you need to engage counsel to have the matter re‑pleaded, if that were to be the ruling?

MR PALMER:   Yes.  I would think, your Honour, about 21 days it would take me to deal with my other commitments.  Can I just respond to a couple of things that the defendant has said?

HIS HONOUR:   Yes.

MR PALMER:   That is, certainly some of the things in this proceeding are different to the other proceeding because I have to approach the case from my perspective as an individual, not from the companies. For example, our pleading in relation to section 75(iv) of the Constitution is only a claim that an individual can make.  A company cannot make a claim in that regard.

HIS HONOUR:   No, I do understand that there are elements of this claim which are different to those of the companies.  I appreciate that.  I am just trying at the moment to get the pleadings into a form which is satisfactory for litigation of this calibre in this Court.

MR PALMER:   Yes.  I would think, your Honour, it would take me that length of time to re‑plead all the items that have been mentioned.

HIS HONOUR:   That would take us to the end of the third week in December.

MR PALMER:   That is right, your Honour, yes.  I think B57 – sorry, I think the one with Mr McHugh has – they have to provide their special case at the end of January.  I understand Mr Jackson has already done the special case for his proceedings, your Honour.

HIS HONOUR:   If I do grant you leave to re‑plead, Mr Palmer, I would be prepared to give you 21 days because it appears to me it is a complex matter and would take counsel some time to get up to speed and to draw the necessary modifications.  But you need to appreciate that one consequence of giving you 21 days is that the State of Western Australia would then need time to respond.  This proceeding might have to, as it were, go behind the others and move ahead.

MR PALMER:   Yes, your Honour, I appreciate that and I understand that is a consequence of the pleading.

HIS HONOUR:   Thank you.  Anything further, Mr Solicitor?

MR THOMSON:   It is a matter for the Court, of course.  Your Honour has made certain comments to the effect that counsel have to get up to speed in order to re‑plead this matter.

HIS HONOUR:   Yes.

MR THOMSON:   I am not sure, and maybe Mr Palmer would enlighten us, whether counsel would be retained.

HIS HONOUR:   I can inquire of him, but I assume that Mr Palmer would, in the circumstances, brief counsel to settle these pleadings into a form that is satisfactory for this litigation.  I will leave it at that. 

Lady and gentlemen, I propose to reserve my decision, but I will bring it down very shortly, sometime this week, and hopefully in sufficient time to enable you to keep the timetable going relative to the other proceedings.  Thank you both for your assistance. 

I will adjourn now.

AT 3.09 PM THE MATTER WAS ADJOURNED