Parbery v QNI Metals Pty Ltd - [2017] QSC 231

[2017] QSC 231
SUPREME COURT OF QUEENSLAND
CIVIL JURISDICTION
BOND J
No 6593 of 2017
STEPHEN JAMES PARBERY and ANOTHER Plaintiffs
and
QNI METALS PTY LTD and OTHERS Defendants
BRISBANE
2.34 PM, TUESDAY, 17 OCTOBER 2017
JUDGMENT

HIS HONOUR: The plaintiffs in this proceeding are Queensland Nickel Pty Ltd (in liq) and its special purpose liquidators. The defendants are:

(a)Mr Clive Palmer, who is the ultimate beneficial owner of Queensland Nickel and its alleged shadow director;
(b)other entities controlled by Mr Palmer, and also other persons to whom the plaintiffs allege money held on trust by Queensland Nickel was paid and knowingly received in breach of trust, or which parties are indebted to Queensland Nickel; and
(c)former directors of Queensland Nickel.

The plaintiffs’ claim in this proceeding are complex. They concern numerous transactions over a period of years. Broadly, the statement of claim alleges:

(a)claims for indemnity for acts of Queensland Nickel in its capacity as trustee or agent, while acting as the appointed general manager of the joint venture between the first defendant and the second defendant;
(b)debt claims and claims for moneys having received;
(c)insolvent trading claims against Queensland Nickel’s directors, including Mr Palmer; and
(d)breach of duty claims against Queensland Nickel’s director Mr Palmer, and other former directors.

I am presently part-heard in an interlocutory application in this proceeding. It is an application by the plaintiffs for interlocutory freezing orders and ancillary orders against Mr Palmer and various defendant companies of which he is the ultimate beneficial owner.

I am also the commercial list judge managing of the order of somewhere between nine and 12 proceedings in which many but not all of the present parties are involved because they are connected in one way or another with Queensland Nickel or its insolvency.

In the hearing of this proceeding before me today and previously in relation to the interlocutory proceeding I have described, there are essentially four groups of parties:

(a)the plaintiffs - Queensland Nickel and the special purpose liquidators - who are represented by senior and junior counsel;
(b)two separate groups of the corporations of which Mr Palmer is the ultimate beneficial owner, each of which is represented by senior and junior counsel; and
(c)Mr Palmer, personally.

Mr Palmer represents himself in:

(a)this proceeding generally;
(b)the plaintiffs interlocutory application for a freezing order and ancillary relief; and
(c)the present application.

The present application is that I recuse myself from further involvement in this proceeding and the other proceedings being managed by me in which Mr Palmer personally is the party. The present application is brought on the basis of both actual and apparent bias.

Neither of the two separate groups of the corporations of which Mr Palmer is the ultimate beneficial owner support the application. They do not seek to be heard in relation to it. The application is opposed by the plaintiffs.

I should say something about Mr Palmer.

Mr Palmer is not an ordinary litigant in person. Mr Palmer is, at least on his…

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.

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Details

Case: [2017] QSC 231
Decision Date: 17 OCTOBER 2017

CaseChat Overview and Summary

The case of Parbery v QNI Metals Pty Ltd involves a complex web of claims and parties, with Queensland Nickel Pty Ltd (in liquidation) and its special purpose liquidators as plaintiffs against Clive Palmer, entities controlled by him, and former directors of Queensland Nickel. The case before the Supreme Court of Queensland revolves around an interlocutory application by the plaintiffs for freezing orders and ancillary relief against Mr Palmer and certain companies, as well as an application by Mr Palmer for the recusal of the judge due to alleged bias. The court examines the factual circumstances underlying the recusal application, including the judge's request for Mr Palmer to temporarily leave the courtroom during cross-examination, the dismissal of a motion to adduce further evidence, and communications between various judges concerning overlapping litigation. The judge concludes that none of these events support a reasonable apprehension of bias or actual bias. The court also addresses the issue of costs, ordering Mr Palmer to pay the plaintiffs' costs of the recusal application on a standard basis. Additionally, the court denies Mr Palmer's application for an adjournment of the interlocutory hearing, finding that the need for additional evidence was not compelling and that the unexpected death in his family did not sufficiently justify the request for an adjournment.

Orders