Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 5]
[2021] WASC 473
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: SINO IRON PTY LTD -v- MINERALOGY PTY LTD [No 5] [2021] WASC 473
CORAM: KENNETH MARTIN J
HEARD: ON THE PAPERS
DELIVERED : 22 DECEMBER 2021
FILE NO/S: CIV 1915 of 2019
BETWEEN: SINO IRON PTY LTD
First Plaintiff
KOREAN STEEL PTY LTD
Second Plaintiff
CITIC LIMITED
Third Plaintiff
AND
MINERALOGY PTY LTD
First Defendant
CLIVE FREDERICK PALMER
Second Defendant
STATE OF WESTERN AUSTRALIA
Third Defendant
Catchwords:
Practice and procedure - Second defendant's Chamber summons to summarily dismiss action - Acton case managed for over three years and trial pending - Application will not be heard
Legislation:
Rules of the Supreme Court 1971, O 4A r 2(2)(f)
Result:
Chamber summons application directed not to be heard
Category: B
Representation:
Counsel:
| First Plaintiff | : | On the papers |
| Second Plaintiff | : | On the papers |
| Third Plaintiff | : | On the papers |
| First Defendant | : | On the papers |
| Second Defendant | : | On the papers |
| Third Defendant | : | On the papers |
Solicitors:
| First Plaintiff | : | Herbert Smith Freehills |
| Second Plaintiff | : | Herbert Smith Freehills |
| Third Plaintiff | : | Herbert Smith Freehills |
| First Defendant | : | Kane Jones |
| Second Defendant | : | In person |
| Third Defendant | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2021] WASC 170
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 3] [2021] WASC 384
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 4] [2021] WASC 451
KENNETH MARTIN J:
Introduction
These reasons explain why, on 16 December 2021, as case manager, I issued an administrative order (folio 323) directing that the application under the second defendant's (Mr Palmer's) chamber summons of 7 December 2021 (folio 309), would not be heard.
Procedural history
This action has been set down for its determination at a civil trial before me as trial judge over a period of 10 weeks, commencing on 14 February 2022. Within the action Mineralogy Pty Ltd (Mineralogy) is first defendant and Mr Clive Frederick Palmer is the second defendant. The State of Western Australia is third defendant.
The civil action itself was originally commenced in the Federal Court of Australia as far back as 23 October 2018 by the plaintiffs (then applicants) against all defendants (then respondents). A statement of claim was filed in the Federal Court the same day. Subsequently, the action was remitted to this court under the national cross‑vesting regime applicable to civil actions across Australia. That was at 23 May 2019. See orders made by Banks‑Smith J on 17 May 2019 (folio 43).
On 14 November 2018, in what was then the WAD 471 of 2018 proceeding in the Federal Court of Australia (Western Australia District Registry), Mr Palmer, then as second respondent, filed a notice of address for service in that action (folio 6). The notice was filed by the Queensland law firm, Alexander Law, with an address in Paddington, Queensland. That was at 14 November 2018.
Once the transferred litigation reached this court in May 2019, Alexander Law continued to act as the lawyers of record for Mr Palmer as (then) second defendant in the litigation.
However, on 18 February 2020 a form 5AA (folio 67) was filed in the court advising that from that time Mr Palmer would be acting in person as second defendant in the litigation (folio 67).
On 23 February 2021, a further form 5AA notice of change of representation (folio 141) was filed on behalf of Mr Palmer by Alexander Law of Queensland, now advising that from then, Alexander Law was once again acting as the lawyers of record for Mr Palmer in this action.
For the most part Mr Palmer's participation in the action to date as second defendant has seen him file defence pleadings via Alexander Law or by himself - which address his own personal position as second defendant - by a wholesale incorporation and adoption of defence pleas raised under the pleadings filed from time to time by the first defendant, Mineralogy Pty Ltd. See, for instance, amended defence electronic filings which are folios 63 and 64 respectively, being an amended defence at that time of the first defendant as at 6 September 2019 - viewed alongside Mr Palmer's own amended defence of the same day filed as second defendant - of some five paragraphs. At that time Mr Palmer's defence pleading as filed (folio 64) carried the endorsement:
Prepared by and address for service:
Care of Mineralogy Pty Ltd
Level 17
240 Queen Street
Brisbane. Qld 4000Email: [email protected]
As mentioned, after 18 February 2020 Mr Palmer until 23 February 2021 was acting in person in this action. That changed (folio 141) on 23 February 2021 when Alexander Law resumed acting for Mr Palmer until December 2021 and filed a Form 5AA.
Recent events
There was a case management directions hearing scheduled in chambers on 23 June 2021. At that time, Mr Palmer was still represented by lawyers of record, Alexander Law. He was represented at that directions hearing by Mr Dunning QC and Mr Byrne of counsel (by video link) both then representing Mineralogy and Mr Palmer at that time, instructed by Mr Kane Jones of Mineralogy and by Alexander Law for Mr Palmer at that time.
A number of case management orders were then made (folio 195), including orders for a separate determination of quantification of loss or damage issues (order 11), for the exchange of evidence both expert and non-expert and essentially (orders 13 and 14) then, at the plaintiffs' behest, setting a trial timetable on the basis of a primary trial resolving liability issues then fixed provisionally to be heard across a three‑month period spanning from the end of January 2022 to the end of April 2022. Subsequently, the commencing date for the primary trial was for various reasons including COVID considerations affecting the barristers, consensually put back by two weeks, to commence at 14 February 2022. (See my orders of 30 November 2021 (folio 300)).
Various other interlocutory developments in the action throughout 2020 and 2021 became the subject of prior interlocutory reasons delivered in this action so far. They are also the subject of reasons of the Chief Justice summarily dismissing then, in effect, Mineralogy's as advanced permanent stay application raised against the action at that time: see the reasons for judgment in this action, Sino Iron Pty Ltd v Mineralogy Pty Ltd[No 2] [2021] WASC 170, delivered 28 May 2021.
There has also followed an interlocutory hearing concerning Mineralogy's discovery document inspection challenges made against some claims of legal professional privilege articulated against inspection of such documents by the plaintiffs and a subject of a hearing and then orders by Registrar Griffin made 10 December 2021 (folio 316).
On 3 November 2021, I delivered further interlocutory reasons in Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 3] [2021] WASC 384, resolving at then, an application of the plaintiffs to strike out various defence pleas that had been made in Mineralogy's third further amended defence (3FAD) of 17 August 2021. My strike out decision carried implications for Mr Palmer's own defence, which essentially had repeated Mineralogy's defence pleas, augmented by some further denials raised on Mr Palmer's behalf personally (see folio 211 and an amended second further amended defence of Mr Palmer of 17 August 2021 filed then by Alexander Law on Mr Palmer's behalf (folio 212).
In the meantime, various witness statements and witness outlines have been filed in accordance with the trial timetabling directions as varied from time to time - in preparation for a February 2022, 10‑week civil trial. One of the witness outlines filed (of 21 October 2021, folio 251) is for proposed evidence at the trial by Mr Palmer.
Also, in accord with my directions, the parties have eventually exchanged lists of documents proposed to be tendered at the trial (after some delay on the part of Mineralogy).
Mr Palmer acting as second defendant in December 2021
On 6 December 2021, by folio 305, another form 5AA was filed at the court advising that Mr Palmer once again would act in person in this action (see also folio 304). At that time, there had been pending a directions hearing by way a of 'health check' for the state of the action's readiness for trial on Tuesday, 7 December 2021 at 11.00 am WST.
On 7 December 2021, there came to be filed (as folio 309) a chamber summons application by Mr Palmer, in person, seeking on his part at this time orders as second defendant in the action that:
1.the proceeding be (a) struck out; and/or summarily dismissed and/or permanently stayed;
2.the plaintiffs pay the costs of the first and second defendants of the proceeding and this application on an indemnity basis;
3.such further or other orders as the court deems fit.
Accompanying his chamber summons (which I note on its face had been filled out as being made returnable at the 'health check' directions hearing of 7 December 2021 at 11 o'clock WST (without leave being sought for an abridged filing and immediate return of the application) was a memorandum pursuant to O 59 r 9(1) by Mr Palmer (folio 310) and reading relevantly, by reference to the issue of prior (necessary) conferral, stating:
(a)The chamber summons has been filed in this proceeding.
(b)On 29 November 2021, Herbert Smith Freehills sent a copy of the proposed further amended statement of claim to the solicitors for the first and second defendants.
(c)The second defendant will make himself available for conferral with the solicitors for the first plaintiff prior to a further directions hearing.
At the subheading '2. Matters in dispute' there was endorsed:
All matters are in dispute.
Under the subheading '3. Hearing' there had been written:
The proceedings are listed for a special appointment on 7 December 2021. The second defendant (ie, Mr Palmer) intends requesting that the chamber summons application be programmed to a hearing and other orders be made at the special appointment on 7 December 2021.
Also filed then by Mr Palmer electronically (see folio 308) were his brief written outline of submissions of 7 December 2021. They read:
1.The original request upon which the whole of the proceedings has been conducted to date was lodged with Mineralogy in 2018. The plaintiffs in essence seek to change that request then seek a trial based on a different position.
2.Mineralogy has not yet in 2021 evaluated or considered the changed position of the plaintiffs and it has not had a reasonable time to do so. The new requests relate to the different area, different tenure arrangements and a different time. The cause of action in respect of the plaintiffs' changed position has not yet emerged.
3.Mineralogy's position in respect of these changed positions cannot be assumed or concluded without proper process.
4.Mineralogy and myself are entitled to proper process and natural justice in respect of the plaintiffs' changed position.
5.The proceedings cannot continue as they have been conducted on the basis of a request which has been overtaken by a new request of which no cause of action has yet emerged. No interlocutory steps have been taken. The parties should mediate to see if a commercial solution can be found, the proceedings should be dismissed with indemnity costs awarded to the defendants as there is no utility in the current proceedings.
6.Any trial of the prior position of the Plaintiffs will only waste public resources and the court's time and incur more costs for all parties and for no purpose. The Plaintiffs' change of position evinces these proceedings have been an abuse of process from the beginning in line with the Plaintiffs' objects set out by the Fulcrum Committee. I would respectfully submit the Chinese Government uses the judicial process in Australia to further its government's objectives and not for the resolution of a legitimate commercial dispute. The Plaintiffs and the Plaintiffs' employees are all under the control and direction of a foreign government. The proceedings should be dismissed with indemnity costs awarded to the defendants.
7.Cause of action cannot arise prior to Mineralogy having a proper consideration of the request and 6 days is not a suitable time frame made for this request. Therefore, the following Orders are sought:
a.the Proceedings be dismissed;
b.the first and second defendants be awarded indemnity costs;
c.Costs of the application.
8.I respectfully seek that the timetable for this chamber summons for the dismissal of the application should be as follows:
a.the Second Defendant to file his submissions by 23 December 2021;
b.the Plaintiffs file their submissions by 14 January 2022;
c.the application be listed for hearing after 14 January 2022.
The written submissions document of 7 December 2021 looks to bear the signature of Mr Palmer as second defendant acting in person.
The 7 December 2021 directions hearing
The scheduled directions hearing in the action for 7 December 2021 proceeded at 11.00 am WST. Given ongoing COVID travel constraints afflicting the nation, the plaintiffs' barristers appeared by video link from Victoria. The first defendant's counsel appeared by a video link from Queensland.
Albeit efforts were made by my chambers to establish a video link to Mr Palmer, as second defendant in person for that hearing, he did not on this occasion participate. Nor, as best as I could ascertain, did he seek then to participate - notwithstanding he was now acting for himself as second defendant and had filed an application returnable that morning. I refer to the email sent by Mineralogy to my chambers (with the plaintiffs copied in) on 7 December 2021 at 10.50 am - 10 minutes exactly before the hearing was listed. The email stated, 'Please note that Mr Palmer is unable to appear at the hearing today as he is at sea and does not have internet access, but he is content to rely on his written submissions in support of his application.'
At the 7 December 2021 hearing, I dealt with some other interlocutory matters, including the plaintiffs' application seeking further leave to amend their statement of claim in accord with the terms of a circulated further proposed amended pleading (FASOC) - and with the application for leave to amend opposed by the first defendant at the time. My resolution of that opposed application to amend in terms of a FASOC, became the subject of the interlocutory reasons, being Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 4] [2021] WASC 451 (delivered 10 December 2021) - concluding then there would be a grant of leave to the plaintiffs to amend in accord with the as proposed FASOC.
On 7 December 2021, I had reserved my decision over the plaintiffs' argued application seeking that leave to amend the statement of claim in accord with the proposed FASOC at the time. I also then programmed to a future hearing date (see folio 311) given what by then emerged at that time as a future, (opposed) consolidation of actions issue around a related, but fresh action to be commenced, as foreshadowed by the plaintiffs - to another special appointment hearing in chambers on Monday, 13 December 2021 at 9.30 am WST.
Also on 7 December 2021, in the absence of any attendance that day by Mr Palmer in respect of his own chamber summons application (filed the same day), I ordered that his chamber summons simply be adjourned (see order 2 of those orders - folio 312).
The 13 December 2021 Special Appointment
The further special appointment hearing concerning the (opposed) application by the plaintiffs seeking a consolidation of actions duly proceeded on Monday, 13 December 2021. My decision in that respect was then reserved after the arguments put that day.
This time Mr Palmer did appear (over a video link) representing himself and he addressed the court.
Speaking in opposition to the plaintiffs' consolidation application concerning their fresh action CIV 2326 of 2021 now commenced by writ by the plaintiffs on Wednesday, 8 December 2021, Mr Palmer asked (a) for the listing for hearing of his 7 December 2021 chamber summons application to dismiss the entire proceeding, and (b) foreshadowed that in the new plaintiffs' action, namely CIV 2326 of 2021 (in which Mr Palmer was again named as second defendant, and would be acting for himself without legal representation), he advised he would be filing an application in the fresh action, seeking that it be summarily dismissed, essentially, as untenable. (ts 874 - 875)
I told Mr Palmer verbally at the time (ts 882 - 883) that since a dismissal application as he was foreshadowing in the fresh action could bear upon the fate of any proposed consolidation of that action with the existing CIV 1915 of 2019, that an application by him to that end needed to be filed as soon as possible and essentially within 48 hours
- that is, by close of business on Wednesday, 15 December 2021. That eventuated as I will explain. But at 16 December 2021 after I issued urgent directions for the hearing of that application, in CIV 2326 of 2021, Mr Palmer notified my chambers that he would not be proceeding with that application.
CIV 2326 of 2021
Memoranda of appearance were filed in the fresh action, CIV 2326 of 2021 by Mineralogy Pty Ltd on 11 December 2021 (folio 6) and by the State of Western Australia as third defendant on Tuesday, 14 December 2021 (folio 8). But at 15 December 2021, there had been no memorandum of appearance filed by Mr Palmer as second defendant indicating participation either as a litigant in person, or by legal representation.
During the course of Tuesday, 14 December 2021 my chambers received a letter emailed from Mr Palmer in person and addressed to my associate.
The subject matter heading of that email letter communication from Mr Palmer was headed 'Re CIV 1915/2015 & CIV 2326/2021. It read:
I would be grateful if you would please bring this correspondence to the attention of his Honour. Thank you for your assistance.
I refer to my Chamber Summons to strike out and/or summarily dismiss or permanently stay the plaintiffs' claims in CIV 1915/2019 filed on 7 December 2021.
I also refer to the direction of his Honour Justice Martin in proceeding CIV 2326/2021 made on 13 December 2021, that I file any application to strike out of [sic] the plaintiffs' claim in that proceedings by this Wednesday 15 December 2021. I advise that my application (to be filed) to strike out the plaintiffs' claim CIV 2326/2021 will also seek, as alternative relief, that the proceeding be summarily dismissed.
I respectfully request that my Chamber Summons filed 7 December 2021 in CIV 1915/2021 and the proposed summons be filed in CIV 2326/2021 be listed for hearing together and at a time convenient to the Court next week after Wednesday 22 December 2021.
My preferred date for a hearing is 23 December 2021.
Yours faithfully
Clive Palmer
Ultimately after some urgent time tabling directions on 16 December 2021 in CIV 2326 of 2021 for an urgent hearing to be conducted on the papers, Mr Palmer, as I mentioned, advised my chambers he would not be proceeding with his chamber summons application in that action.
CIV 1915 of 2019
Nevertheless, concerning CIV 1915 of 2019, Mr Palmer's chamber summons of 7 December 2021 (which I adjourned in the absence of any participation by Mr Palmer on 7 December 2021) remains unresolved. What should be done with this application filed by Mr Palmer in person?
A number of observations may be made about it, bearing in mind the state of CIV 1915 of 2019, the present intense pre-trial activity unfolding in the lead-up towards the fixed trial dates under the revised timetable, the finalisation and filing of expert reports (10 December 2021). The time for the filing of reply expert reports on each side by the expert witnesses was extended (see order 27 of the trial timetable orders of 23 June 2021 as varied), to 14 January 2022.
By the revised trial timetable orders of 30 November 2021, papers for the Judge are due to be filed on 14 January 2022 (order 10). An electronic trial bundle is due to be filed by the plaintiffs on 24 December 2021 (order 6). The parties are due to notify specific objections raised against documents being tendered, by 21 January 2022 (order 9). The plaintiffs' chronology is due on 14 January 2022 (order 13), and the defendants' reply chronology in response is required by 25 January 2022 (order 14).
The plaintiffs' written opening outline of submissions (not to exceed 50 pages) are due by 28 January 2022 (order 15). The written submissions of the first and second defendants are fixed for 4 February 2022 (with the State's written submissions due on 8 February 2022). (order 16).
The action generally, CIV 1915 of 2019, is programmed for a further directions hearing and 'health check' on Wednesday, 19 January 2022.
Conferral between the experts with a view to them producing an agreed memorandum as between those trial experts - has not yet occurred. It will need to be reprogrammed around the revised commencement date for the beginning of the trial in mid‑February 2022.
In addition, although I have not yet fixed a precise date, the defendants must have an opportunity to file any consequentially amended defences dealing with the changes carried under the FASOC -in respect of which leave to amend was granted formerly on Monday, 13 December 2021. This date is potentially affected by a few more proposed changes to the statement of claim under the consolidation application - to be resolved.
As may be appreciated therefore, in the lead-up to the commencement of the civil trial there has been and remains an intense amount of legitimate pre-trial work to still be done and at a difficult time of year from a holidays perspective in terms of unrelenting trial preparations on all sides before the trial..
At this time, unnecessarily adding more tasks to the parties' pre-trial preparation burdens is essentially to be deprecated - unless that is absolutely essential.
Mr Palmer's application in CIV 1915 of 2019
Mr Palmer's in person chamber summons application of 7 December 2021 as second defendant, seeks that the original action be struck out and/or summarily dismissed and/or permanently stayed.
In bringing a pleading strike out application, by RSC O 20 r 19(3), any such application, must:
(a)be made within 21 days of the service of any pleading, or amended pleading, or writ to which the application refers;
...
Consequently, leave would be required by Mr Palmer, particularly at this very late stage in the action, pending a looming February 2022 commencement of the trial itself, for him to advance a strike out application against any long term content of the original statement of claim, or in the plaintiffs' ASOC (which was filed with the parties' consent, including that of Mr Palmer, whilst he was legally represented, on 26 October 2021).
To the extent Mr Palmer seeks to challenge by way of a strike out application directed against amendments carried under the FASOC, a pleading made under my leave by orders 13 December 2021, then for all the reasons I have earlier given in granting leave to allow those amendments to be made under my reasons which are Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 4] [2021] WASC 451, delivered 10 December 2021 (argued on 7 December 2021 in the absence of Mr Palmer, who did not appear that day) - I would not be minded to hear any such strike out application. I have resolved those FASOC amendment applications are arguable at a trial. That, of course, is not to say they will be successful on their merits at a trial.
But there has been more than ample opportunity across a period of greater than three years in this case managed action for a strike out or summary dismissal or permanent stay application to be brought by Mr Palmer well before now, at the eleventh (11th) hour, before the trial itself.
The Chief Justice has already summarily dismissed Mineralogy's April 2021 permanent stay application, unsuccessfully brought then against this action - under the reasons Sino Pty Ltd v Mineralogy Pty Ltd [No 2].
After April 2021, I have similarly been confronted with, but ultimately struck from Mineralogy's pleaded defence - some defence pleas that sought to reagitate so-called 'Fulcrum Purpose' arguments by Mineralogy (see the reasons in Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 3] - which I am informed is a subject of an application for leave to appeal to the Court of Appeal that is pending).
Furthermore, I point out insofar as Mr Palmer foreshadows a summary dismissal application by him in CIV 1915 of 2019, that under the terms of RSC O 16 r 1(1) - any such application needs to be brought within 21 days after the appearance of the party, or at any later time with leave of the court. No such leave has been sought, or given. Moreover, such application via RSC O 16 r 1(2) needs to be by summons and
... supported by affidavit verifying the facts upon which the application is based.
There is no such affidavit filed in accord with that rule by Mr Palmer, or on his behalf. Consequently, that aspect of Mr Palmer's foreshadowed application was itself irregular.
I point to two further issues concerning Mr Palmer.
To the extent Mr Palmer's outline of submissions filed 7 December 2021 - directed at the plaintiffs' extra tenure claim argues towards the demonstrable lack of merit in the plaintiffs' case, by reason of a suggested late 2021 change of strategic position, the position is just not as obvious as that. Mr Palmer, albeit acting in person, plainly does not lack the resources needed to access high quality legal advice. He will enjoy a full opportunity at the forthcoming civil trial to put his second defendant's position at that time - concerning any alleged lack of merit in the plaintiffs' 2021 revised tenure case.
Plainly, a great deal of factual content underlies any serious evaluation of the rival arguments framed around the plaintiffs' extra tenure requests as made to Mineralogy. The request for extra tenure for the Sino Iron Projects operations by the plaintiffs, had been originally directed at the areas highlighted in the Annexure 11 map, scheduled to the statement of claim, later in 2021 to (a revised) Annexure 11A and presently, via the freshly commenced action that is CIV 2326 of 2021 - by regard to a proposed further map that is proposed to be Annexure 11B in a consolidated statement of claim. A full opportunity awaits Mr Palmer at the trial to address these factually complex tenure issues on their merits at that time.
So also, if Mr Palmer should so choose, could present for him the opportunity at the trial to make then a no case to answer submission - at the appropriate time and if, prima facie, he elects not to adduce any trial evidence.
Insofar, therefore, as Mr Palmer now expresses grievances concerning a lack of proper process for himself, or not having an adequate opportunity to be heard - such concerns will be addressed under by the proper processes of the 10-week civil trial commencing in February 2022.
Orders
Consequently, my determination is that given all such prevailing considerations and with the enumerated ostensible deficiencies presenting on the face of Mr Palmer's chamber summons application (folio 309 of 7 December 2021 - including the absence to date, of any underlying affidavit material in support of it) my assessment is that Mr Palmer's application is irregular and simply should not be heard. I have directed to that end, accordingly.
By the terms of RSC O 4A for a case managed action the court holds the power by RSC O 4A r 2(2)(f), to 'direct that any interlocutory application not be heard'. Plainly, a court must be very cautious before utilising that extraordinary power - but under present circumstances, I am satisfied that its deployment is justified against the hearing of Mr Palmer's interlocutory application.
Under present circumstances, I so direct, concerning Mr Palmer's chamber summons of 9 December 2021 not being heard.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DM
Research Associate to the Honourable Justice Martin
22 DECEMBER 2021
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