Palmer v The State of Western Australia; Mineralogy Pty Ltd & Anor v State of Western Australia

[2020] HCATrans 152

[2020] HCATrans 152

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

Office of the Registry
  Brisbane   No B54 of 2020

B e t w e e n -

MINERALOGY PTY LTD

First Plaintiff

INTERNATIONAL MINERALS PTY LTD

Second Plaintiff

and

STATE OF WESTERN AUSTRALIA

Defendant

Directions hearings

KIEFEL CJ

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO CONNECTION

ON WEDNESDAY, 30 SEPTEMBER 2020, AT 12.00 PM

Copyright in the High Court of Australia

____________________

MR C.F. PALMER appeared in person.

MR D.F. JACKSON, QC:   Your Honour, I appear for both plaintiffs in B54/2020, leading MR M.A. KARAM.  (instructed by Jonathan Shaw)

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 on behalf of the defendant in both matters.  (instructed by State Solicitor’s Office (WA))

HER HONOUR:   I have, of course, read the pleadings and the submissions in these matters.  As a preliminary matter I do not think it is suggested that remitter is necessary in either of these matters?

MR JACKSON:   That is so, your Honour.  We understand the position to be that paragraph 22 of our learned friend the Solicitor’s submissions accepts that the proceedings are appropriate to be heard by the Court.

HER HONOUR:   Yes.  That is correct, Mr Solicitor?

MR THOMSON:   In relation to B54 that is correct.  In relation to B52, it is a matter for the Court’s convenience, of course.  There is no right for that matter to be in this Court.  We have suggested that it might be that the Court needs to either defer the hearing of that matter, or parts of that matter, pending the outcome of perhaps the resolution of issues in B54.  If the Court thought that it was of assistance to it, it could make it a condition of dealing with the matter directly that counsel represent Mr Palmer.  There is no right for the matter to be heard immediately by the Court.  I mean if that was the course…..it could be remitted to be dealt with unless that condition was fulfilled. 

Alternatively, it might be that the Court deals with the matter by excising parts of the common issues, if you like, in B52 and Mr Palmer agreeing that he would be bound by whatever is resolved in those in B54.  Those are just methods of dealing with the matter and it is certainly, of course, for the Court’s convenience to ‑ ‑ ‑

HER HONOUR:   Mr Solicitor, putting aside Mr Palmer’s self‑representation at this point, I do not think that you would suggest that it is a good idea really to separate matters which have so many common issues and have effectively part hearings.  Now, that goes not only for the fact that both matters should be heard together – they should be heard on all issues.  The idea of having split hearings and having some residual issues to be heard later is rather unattractive and it is certainly inefficient.

MR THOMSON:   I accept that.  The question is not so much about self‑representation but about the form of the present statement of claim.

HER HONOUR:   I will come to that separately.  I think that is a distinct issue from self‑representation.  I have concerns about that, but I will take that up with Mr Palmer as we work through the issues on the directions hearing.

MR THOMSON:   Yes.  It was really more directed to – the question of remitter was directed to trying to work out how to deal with a statement of claim which we would suggest is prolix and difficult and whether it is Mr Palmer or counsel that represents Mr Palmer that fixes that up is a matter of indifference to us.  It is just that it does need to be fixed up.

HER HONOUR:   Yes.  Mr Palmer, I do not think you need to comment, but you are of course welcome to if you wish at this point.  I do not propose to remit your matter, No B52, certainly at this point.  I think, as I have said to the Solicitor‑General, the two matters ought to be heard together.

MR PALMER:   Yes, your Honour.  I accept that.

HER HONOUR:   The first issue is I think, Mr Solicitor, whether West Australia wishes to pursue the suggestion of an adjournment of directions until the decision of the Supreme Court of Queensland in the enforcement proceedings.  Is that a matter that you wish to pursue?

MR THOMSON:   The difficulty arises in this way and that is that if we are forced to plead a defence at this point in time then we would allege in that defence that the orders that have been made by Justice Martin should be set aside or should not have been made in the first place and we would have to plead out all of those matters in the defence.  At the moment it is not res judicata, but if there is then a decision of Justice Martin it becomes res judicata as between the parties.  So, again, it is a matter of what is the most convenient course but it does appear to us that there are difficulties about proceeding in the absence of the decision of Justice Martin. 

The difficulty is that – perhaps I can…..this way, is that there is, we would submit, no interference with any process of the Court in any place unless the orders of Justice Martin stand because arbitral awards and orders are not orders of a court that have a contractual effect.

HER HONOUR:   Yes, but the orders that his Honour may or may not make will not resolve all of the issues in these proceedings, will they?

MR THOMSON:   No, that is correct, but they go to two of the issues that are raised in the – possibly refer to questions in B54/2020.  They go to the first issue and they also go to the sixth issue, that it underpins all of the first proposed question and that relate to part of the sixth proposed question.

HER HONOUR:   Mr Jackson.

MR JACKSON:   Your Honour, may I say in relation to that, the manner in which Justice Martin in the Supreme Court of Queensland was asked to make and made an order that…..be enforced which is the fundamental basis of the challenge to his order, is really an issue which is a, if I may put this way, fringe issue.  It is a fringe issue because there is nothing to stop us assuming that his order be set aside…..there is nothing to stop us if we are successful in our challenge to the validity of the West Australian legislation instituting similar proceedings in various jurisdictions throughout Australia.  We would simply be in the situation where he should not have made, ex parte, the order which he made.  That would be the simple position.

We would submit, your Honour, that it may well be that there is no decision by his Honour Justice Martin pending the decision of this Court if the Court were minded to take up the constitutional issues that are involved.  So, we submit, your Honour, it is a matter that the Court should not give

much weight to at this point.  If events require some change they will but it is unlikely to be of any significance.

HER HONOUR:   Yes.  Do you wish to be heard on this issue, Mr Palmer?

MR PALMER:   Your Honour, the only comment I would make is it seems circular to me that the High Court of Australia can be held up for a decision of a lower court which itself may be challenged later, regardless of the outcome.

HER HONOUR:   Mr Solicitor, the matter will continue in this Court without adjournment.  If there is a need to amend the defence at any point, that can be accommodated of course if the matter does proceed in the Supreme Court.

MR THOMSON:   Yes, thank you.

HER HONOUR:   Now, as I have said, I do not think it can be doubted that both matters should be heard together.  Indeed, I would not set one down without the other, but that necessitates all issues being heard together, that there should not be a two‑part hearing.  I understand, Mr Jackson, that the plaintiff’s suggestion is that there be statements of claim but no defences and that the matters proceed – are referred into the Full Court on questions arising out of the statements of claim.  But, of course, your proposal does not take account of the additional uncommon questions in B52.

MR JACKSON:   Well, your Honour, the position simply was and in a sense is that whilst one can glean, of course, the bases upon which the State is likely to defend its legislation there is not a document which in effect sets out what its contentions fundamentally are and so it became necessary for us to provide a suggestion to the Court as to the manner in which the matter might proceed.

HER HONOUR:   You are not suggesting then, Mr Jackson, that there be no defences?  There should be, should there not?

MR JACKSON:   Your Honour, it does seem desirable – whether it be by way of defence in the formal sense or whether it be by some other form of proceeding, it does seem desirable that the contentions relied on in support of the validity of the legislation are made clear so that the Court is not spending time on issues that are not really being put.

HER HONOUR:   As you say, it is more than desirable that the parties and the Court know what the defendant’s position is, not the least because we

should not assume there will be no demurrer given some of the uncommon questions raised.

MR JACKSON:   Yes.  Your Honour, could I just also say that this is a case where, except perhaps in some respects, there are unlikely to be significant facts requiring resolution.

HER HONOUR:   Yes.

MR JACKSON:   As we understand the position – we have put this in our written submissions – we have in action No 54 a statement of claim which alleges facts.  That would be one document.  There would be the documents referred to in it and we have referred to those in our submissions and then there would be the questions by whatever form.

Your Honour, perhaps one way of dealing with the matter would be for us to take the initiative of endeavouring to put before the Court, whether it be by way of special case or whatever other form the Court might think appropriate, something that sets out the basic facts, not necessarily by way of additions to the pleadings but sets out the basic facts derived from the sources to which I have referred, and the basic facts which would be necessary to answer the further questions that arise from Mr Palmer’s matter and to do that perhaps in – I think there is a public holiday next week – to do that perhaps by the end of Wednesday.

HER HONOUR:   I will ask the Solicitor, of course, about whether there are likely to be any facts in dispute but there certainly do not appear to be at the moment.  That would of course facilitate a special case being stated with agreed facts.

MR JACKSON:   Yes, yes.

HER HONOUR:   After pleadings but I see the need, strongly, for the pleadings to be very clear in this case.  They are complex matters.  Mr Palmer, do you wish to add anything to what Mr Jackson has said.

MR PALMER:   No, I think that I would like to do – support what Mr Jackson said and I am sure that we could meet that timetable on Wednesday as well, your Honour.

HER HONOUR:   Mr Solicitor?

MR THOMSON:   Your Honour, subject to this qualification, in relation to B54, there does not appear to be any facts that would be in issue, perhaps no facts that are in issue.  But the qualification relates to the making of an order in the Queensland Supreme Court and as I mentioned in the submissions there are allegations that that order ought not to have been made because of misleading information or incorrect information that was provided at the time that the order was made. 

It appears to us that if the decision of the Supreme Court is not available that we would be entitled and obliged to plead that the order ought not to have been made or ought to be set aside having regard to all of those factual matters.  Now, that ranged across two days of hearing in the Queensland Supreme Court on 11 and 14 September.  So I would imagine that if it is necessary we would have to plead those facts and see those facts put before the High Court unless of course there is a concession made by our friends that the order should not be treated as valid for the purposes of assessing the validity or invalidity of the Act.

In relation to B52, there is of course significant factual material that is pleaded that we say is irrelevant and your Honour will have seen, for example, the extracts of media interviews ‑ ‑ ‑

HER HONOUR:   I will take that up with you in a moment, but if one puts the difficulty with the pleading aside, the process that has been outlined, which is full pleadings and then stating a special case, as you say would depend, in B52, upon whether there are any extra facts but that is not a problem with B54.

MR THOMSON:   No, subject to this point about the enforcement order in the Queensland Supreme Court and the facts necessary to show that it ought not to have been made, not for any reason that is related to its constitutionality or not, but related to the basis upon which it was obtained in the first place.

HER HONOUR:   How long would you need to plead to the case in B54?

MR THOMSON:   My estimate would be that we could produce a pleading in three weeks which would clearly state all of the matters that arise as a matter of law.

HER HONOUR:   I take it you are saying that you have a difficulty pleading to B52?

MR THOMSON:   I think that is right because of the way it has been alleged in the first place.

HER HONOUR:   Could you expand on that so that Mr Palmer has an opportunity to respond?

MR THOMSON:   Well, we have set out some of the difficulties about the form of the pleading in our outline of submissions.

HER HONOUR:   I know that you say it is prolix and it is certainly discursive.  I think you have used the word “narrative”.

MR THOMSON:   That is correct.

HER HONOUR:   It does plead some facts which are arguably not entirely relevant and some are embarrassing and it does plead some matters of law.  Is there anything in addition to those matters which makes it difficult for you to plead?

MR THOMSON:   No.  I think that your Honour has…..in those grounds covered everything that we would say.  I suppose the difficulty about the irrelevant matters is that we are then put to the expense and cost of trying to track it through and work out whether or not there is a need for matters to be pleaded in response and so that is a more difficult pleading to prepare and I think that would probably require a significant time more than for B54.

HER HONOUR:   Mr Palmer.

MR PALMER:   Yes, your Honour.

HER HONOUR:   I think there is much in what is said about the difficulties with the pleading.  One only has to note that it is 88 pages as compared with the statement of claim in B54 which is 22 and is succinct.  It is extremely difficult to read and I would have thought almost impossible to plead properly to in a way in which this Court would find comprehensible.  In its present form it is likely to be productive of considerable delay in these proceedings.  I can give you leave to file an amended statement of claim.  It would be, of course, a matter for you whether you engage counsel to do that, but frankly, unless and until it is properly pleaded, I do not think these matters can be advanced towards hearing.  What can you say about that?

MR PALMER:   Well, your Honour, it would be helpful for me in addressing the pleading if Mr Thomson could detail it with some specificity, picking up matters which he finds objectionable.  That would assist me in being able to address them in a much quicker manner and possibly to replead the matter.  I notice his criticisms are general in nature.  They are not specific and as you say it is a very large pleading of 88‑odd pages so it is very difficult to know exactly what sections he refers to.

HER HONOUR:   I do not think I could require Mr Thomson, the Solicitor‑General, to identify with particularity all that is problematic with

the pleading.  It is, broadly speaking, impenetrable and whilst one can discern by reference to what is raised in the other pleading what might be contended for, there would be a large amount of speculation in what is involved.  It is not in a form in which this Court would regard as properly pleaded.  How long would you require to file an amended statement of claim in a form which could be responded to by way of defence?  How long would you require for that?

MR PALMER:   Well, it is difficult for me, your Honour, to give that estimate because I am dealing with a standard which I am not familiar with.  But I certainly could re‑plead the matter, I think within seven to 10 days and come back with a much briefer document which may be more specific.

HER HONOUR:   As I have said, it is a matter for you whether or not you engage counsel.  It is a curious circumstance, of course, that you are instructing in other matters and appearing for yourself in this one, but that is a matter for you.  As I have said, the difficulty is it is going to be productive of delay.  Without the statement of claim being put in a proper form, I can foresee that after this opportunity there may well be applications to strike out or to demur to part of it and we are going to have pleading skirmishes which will take time.

MR PALMER:   Hopefully, your Honour, if you could give me that period of time to replead it, we might be able to avoid that.

HER HONOUR:   If I gave you until 16 October, would that be sufficient?

MR PALMER:   Yes, your Honour.

HER HONOUR:   All right.  In the other matter, Mr Jackson, what do you say about West Australia’s suggestion of three weeks for a defence?

MR JACKSON:   That sounds more like the never‑never, your Honour.  This is a legislation obviously prepared with particular aims in mind and it cannot have been thought that there would be likely to be a challenge to it.  We would suggest that an appropriate time would be a week.

HER HONOUR:   Mr Solicitor?

MR THOMSON:   If the matters are to be dealt with together and we are only receiving the repleaded version of Mr Palmer’s claim on 16 October, it would cause no prejudice to the conduct of the matters if we put on a defence in B54 by 21 or 23 October and we are perfectly happy to be conferring with Mr Jackson after that about the preparation of a special case and presumably we would then be in a position to put on a defence if it is an

appropriate pleading in B52 within a reasonably short time after having received it, perhaps by 30 October.

HER HONOUR:   In B54/2020, I will direct that the defendant file its defence by 9 October and will adjourn that matter for further directions on a date to be fixed.

In B52/2020, I order that the plaintiff have leave to file an amended statement of claim in whole or in part by 16 October and adjourn that matter for further directions – I should fix a date for that.  If the matter, perhaps, was brought back on 21 October, would that be too soon after you received it, Mr Solicitor?

We have lost our connection with Western Australia.  Such are the problems with video conferencing with the courts.  I will have to adjourn briefly while we reconnect.

AT 12.25 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.28 PM:

HER HONOUR:   Mr Solicitor, I hope you can hear us.

MR THOMSON:   I can, thank you, your Honour.

HER HONOUR:   Thank you.  We were just discussing whether or not, if I set the matter down for further directions – that is B52 – on 21 October, whether that would give you sufficient time to analyse the amended statement of claim?

MR THOMSON:   I think it would, your Honour.

HER HONOUR:   Very well.  Mr Palmer, is that date convenient to you?

MR PALMER:   Yes, your Honour, it is.  I think that would be good.

HER HONOUR:   All right.  Because of the time difference we will again make it 12 noon.  We will adjourn for further directions to Wednesday, 21 October at 12 noon.

I do not think there are any other matters, gentlemen?

MR PALMER:   No.

MR THOMSON:   Thank you.

HER HONOUR:   The Court will adjourn.

AT 12.30 PM THE MATTERS WERE ADJOURNED