Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 7]
[2022] WASC 25
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: SINO IRON PTY LTD -v- MINERALOGY PTY LTD [No 7] [2022] WASC 25
CORAM: KENNETH MARTIN J
HEARD: 19 JANUARY 2022
DELIVERED : 19 JANUARY 2022
PUBLISHED : 1 FEBRUARY 2022
FILE NO/S: CIV 1915 of 2019
BETWEEN: SINO IRON PTY LTD
First Plaintiff
KOREAN STEEL PTY LTD
Second Plaintiff
CITIC LTD
Third Plaintiff
AND
MINERALOGY PTY LTD
First Defendant
CLIVE FREDERICK PALMER
Second Defendant
STATE OF WESTERN AUSTRALIA
Third Defendant
Catchwords:
Practice and procedure - Pre-trial directions - 'Health check' - Extensions to timetabling orders for time lines not met - Further and better discovery applications - Application by second defendant to vacate trial dates
Legislation:
Nil
Result:
Variations to pre-trial timetable directions
Application to vacate trial dates by second defendant refused
Category: B
Representation:
Counsel:
| First Plaintiff | : | Mr J H Karkar QC, Mr J H Kirkwood & Mr T Maxwell |
| Second Plaintiff | : | Mr J H Karkar QC, Mr J H Kirkwood & Mr T Maxwell |
| Third Plaintiff | : | Mr J H Karkar QC, Mr J H Kirkwood & Mr T Maxwell |
| First Defendant | : | Mr P Dunning QC, Mr K S Byrne, Mr D Fawcett, Mr M Karam & Mr H Cooper |
| Second Defendant | : | In person |
| Third Defendant | : | Mr A Sefton SC |
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):
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Parbery v QNI Metals Pty Ltd [2018] QSC 249
Sino Iron v Mineralogy [No 3] [2021] WASC 384
KENNETH MARTIN J:
(This judgment was delivered extemporaneously on 19 January 2022 and has been edited from the transcript.)
Introduction
On 19 January 2022, there was a 'health check' directions hearing in respect of the 10 week civil trial scheduled to commence before me on Monday, 14 February 2022. Minutes of proposed orders and directions have been exchanged between the parties. There is a good degree of alignment as between the plaintiff in terms of its minute of today (folio 344) and first defendant's (Mineralogy's) minute (folio 347) - in terms of agreed consensual extensions to the timetabling orders. These are primarily my orders and directions of 23 June 2021 and 30 November 2021. The State, as third defendant, is untroubled by any of the proposed extensions to the trial timetable directions.
Mr Palmer, the second defendant, disagrees. By orders sought under his proposed minute of 18 January 2022 (folio 342), Mr Palmer effectively seeks to defer and vacate the trial dates - with a view to relist the trial much later. That is a matter of concern. For instance, Mr Palmer seeks under his minute extensions of time in terms of filing expert evidence until 31 July 2022, as well as an extension for the process of conferral between rival experts, to 10 September 2022. By proposed orders 9 and 10 of his minute, the trial which is now listed to commence on 14 February 2022 would be vacated, and all other programming orders, be vacated.
For reasons I will briefly summarise, I am not prepared to make orders vacating the trial dates as sought by Mr Palmer. The action is, after the end of this week, only three weeks away from its fixed trial date commencement. And there are, as is always the case with a large commercial trial, with voluminous pleadings issues and documents, a number of important pre-trial tasks now looming to be urgently performed before 14 February 2022.
In person Mr Palmer presents his minute of proposed orders of 18 January 2022 and relies on an outline of written submissions of 18 January 2022 (folio 343), as well as his affidavit of 17 January 2022 (folio 338).
Opposing all of Mr Palmer's proposed orders, the plaintiffs rely on the affidavit of David William John of 19 January 2022 (folio 346).
Timetabling orders
As of today, some pre-trial tasks have now fallen behind in terms of the current (as revised) timetable. The delayed tasks are now a subject of the plaintiffs' and first defendant's proposed timetable variation catch‑up orders submitted consensually this afternoon under their respective minutes.
As between the plaintiffs and first defendant, they agree today that the time for the filing of reply expert evidence should be extended to 27 January 2022. This is under the proposed minute by the first defendant of 18 January 2022 (folio 347). I will accede to that extension. Reply expert reports were due for filing on 14 January 2022, under my last orders of 30 November 2021.
Likewise, in terms of the required joint memorandum to be prepared by the experts and be completed after their reply reports, it is sought today by the plaintiffs and the first defendant that the time for compliance in that respect be extended from what was going to be 27 January 2022 to 10 February 2022. That is the subject of that proposed order 2. I will make that extension order as well.
There are further pre-trial tasks to be addressed which are looming and will obviously require intense amounts of work from the lawyers on all sides in the next three weeks or so.
Written submissions from the plaintiffs are due at the end of next week. The trial book of documents was to be filed by 17 January 2022. It has obviously not yet been filed.
Mr Karkar QC tells me today that the plaintiffs had identified all the documents they want to have in the book, but are waiting for a response from the first defendant as to its position on the documents. Mr Dunning QC for the first defendant explained that there are some further documents that have been disclosed to it late, and which are under urgent consideration. Consequently, the time for that pre-trial task to be completed needs to be extended as well.
Consequently, I will make an order extending time for the completion of trial book varying to that end my orders of 30 November 2021 and 29 December 2021. Time will be extended until the end of next week, ie, by close of business WST 5.00 pm, on Friday, 28 January 2022.
The plaintiff and the first defendant are also agreed in terms of a fresh direction that permits the matter to be dealt with as a so-called hybrid trial, on the basis of it being conducted in person or as a virtual hearing, in part, if that becomes necessary due to COVID-19 restrictions in Western Australia possibly impacting against travel by the parties, their teams of lawyers and trial witnesses. I will make that order to that end. That will be order 4.
In terms of a formal entry lodgement for trial, the plaintiffs and the first defendant are also agreed on that issue and jointly propose that be done by the plaintiffs by 7 February 2022 under proposed order or direction 5, with an estimated trial duration of 40 days. I add perhaps unnecessarily, but as a matter of clarification, the words, 'and meet any associating filing fees at that time'.
The time for the filing of the defendants' chronologies has also blown out and will also need to be extended. That extension is sought under order 6 with the first defendant, as proposed by an extension to 28 January 2022. An extension direction in those terms will issue as well.
Also as between the plaintiffs and first defendant, an order is sought as to costs of the directions hearing was that they be in the cause. That will be order 7, which I will also make.
Those timetabling orders are made, bearing in mind it is now only three weeks, essentially, at the end of this week before the trial starts. The magnitude of the various pre-trial preparatory tasks that loom to be performed by the parties before that is still considerable.
Mineralogy's chamber summons seeking further discovery
A chamber summons of the first defendant of yesterday (18 January 2022) by folio 339, seeks some further discovery by its reference to a Schedule 1. This is under par 3 of that chamber summons. In this respect, I will order, as I have now discussed with respective senior counsel this afternoon, that the parties are directed to confer, in good faith, concerning this aspect of the application by the first defendant - in respect of an application by it to inspect all the 67 partly redacted documents the subject of that Schedule 1, under par 3, to its chamber summons. The conferral directed is with a view on (a) narrowing the scope of the inspection request, and (b) establishing a potential regime of confidentiality to facilitate the inspection of some of those 67 documents - by a senior lawyer on behalf of the first defendant with appropriate undertakings given to allow the inspection to occur.
Whilst I do not include it formally in my orders of today, essentially, as also discussed with senior counsel, I am looking, if not to wholly eliminate, then to substantially narrow the number of redacted documents that are disagreed over in terms of problematic relevance redactions made by the plaintiffs. This is so that the relevance dispute would be reduced to an absolute minimum and might then be dealt with by me, if still necessary, in small respects in the context of the running of the trial at some convenient point. That direction will be order 8 of today's orders.
Next, order 9 will seek to address further aspects of the first defendant's further discovery application under pars 1 and 2 of its chamber summons of yesterday and, essentially, to programme that aspect of the further and better discovery application to be dealt with wholly on the papers. This will be direction 9.
To that end, the first defendant is to file and serve brief written submissions and any further affidavit materials relied on (with its submissions not to exceed 10 pages) concerning that aspect of its further and better discovery application by pars 1 and 2 of its chamber summons - seeking further discovery of the contended 'Amended Category' documents by 5.00 pm WST on Friday, 28 January 2022.
By ancillary following direction 10, the plaintiff - and any other party - may then respond by a written submission, also not to exceed 10 pages, by 5.00 pm WST on Tuesday, 1 February 2022.
Following direction 11 will be that thereafter, these aspects of the first defendant's application be resolved by the case manager on the papers as soon as is feasible.
Mr Palmer's position as in person second defendant
Remnant issues to be dealt with essentially concern the second defendant, Mr Palmer.
As earlier indicated, Mr Palmer, by his minute and under his in person written submissions, essentially seeks that I would vacate the trial dates and that the trial should not proceed as currently timetabled. However, I am not persuaded, applying the applicable legal threshold, more particularly as was described by the High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175, that it is at all appropriate to vacate the trial dates and to not proceed with the trial as planned.
This action has been pending for some time after being transferred to this court from the Federal Court in 2019 under the national cross vesting regime. Trial dates were allocated in the middle of last year, in June 2021. There have been numerous directions hearings in this court. There have since been numerous interlocutory applications and reasons for decision published. Consequently there has been, on my assessment, more than ample opportunity for all parties to be ready and be fully prepared for the looming trial commencing at 14 February 2022.
Jackson J has said of Mr Palmer in Parbery v QNI Metals Pty Ltd [2018] QSC 249 concerning his acting in a self represented capacity in another action (see [2]):
One application is brought by the fourth defendant who represents himself. He does so purely by choice, not by necessity. He is a wealthy man who has available to him any legal assistance he desires or could need. In court, he is assisted by lawyers who sit nearby (although not at the bar table as a 'McKenzie friend') and provide him with documents and information as he needs them. He files and relies on documents in the form of affidavits sworn by him and detailed written legal submissions, that are on their face prepared by a person or persons with legal training, who he says are not employed in house by his group of companies known as the 'Mineralogy Group', but are external lawyers who provide him with assistance but are not appointed to act as solicitors or otherwise appear in the proceeding. He describes himself as a 'self-represented litigant'. In a literal sense, he is. However, he has that status because he chooses to have it, and unlike nearly all self‑represented litigants, he has had considerable legal assistance both in and out of court in connection with these applications. (footnotes omitted)
Those observations are equally apposite here to present circumstances. I am not persuaded that Mr Palmer can, at a very late stage, after choosing to act in person, to differentiate himself from the stance of Mineralogy as regards readiness for trial. Mr Palmer is, on my assessment, effectively the governing mind and director of Mineralogy in terms of its important decisions. It is simply not open for Mr Palmer to, effectively, try and distance himself at this time from forensic decisions as to trial readiness by Mineralogy. Nor am I persuaded, in the circumstances, that there is a sufficient explanation or a sufficient basis from Mr Palmer's affidavit or his written submissions for a delay of the trial has been given, especially weighing in mind the public interest in a precious public resource (which has to be considered in terms of waste) - measured against the rights of the plaintiffs to have their important action, pending now for some time, determined at a trial - a trial which has been on the horizon since June last year. The trial will proceed.
Much of the application by Mr Palmer, seeking to vacate the trial dates, looks to be tied to suggested repercussions of pleading amendments made under the last iteration of the plaintiffs' statement of claim in 2021 - and under the recently successful consolidation application. The leave to amend application by the plaintiffs and my following orders so as to consolidate two actions, were acceded to by me and are a subject of my written reasons: see Sino Iron v Mineralogy [No 6] and [No 7].
Whilst evaluating and ultimately granting the plaintiffs' opposed leave to amend the statement of claim, and in granting the opposed application of the plaintiffs to consolidate, I did at then seek to weigh up the potential ramifications of allowing the amendments and of making the consolidation orders. This was with reference to any adverse repercussions for the defendants against a coherent running of a looming February 2022 trial. In the end I was satisfied that the pleading augmentations and the consolidation could be accommodated without any undue prejudice against the defendants and without jeopardising the trial dates.
Nothing that I have read or heard, in the present application of Mr Palmer seeking to vacate the trial, persuades me that anything sufficiently new, intrusive or prejudicial has emerged that would, as a matter of fairness and justice, cause me to be persuaded to vacate the existing trial dates. The public interest is also strongly against any such vacation in my view.
Prejudice, of course, goes beyond the mere interests of the immediate parties to this action. It extends as well as a consideration to the general public and, indeed, to weigh the positions of other litigants waiting to obtain trial dates in this court for their actions.
A proper basis to vacate the current trial dates has simply not been shown by Mr Palmer.
Further and better discovery and Mr Palmer
Another issue to be addressed is in relation to aspects of an application brought under Mr Palmer's chamber summons of 17 January 2022 (folio 335) - in respect of his also seeking some further categories of discovery.
Insofar as Mr Palmer's chamber summons, by his par 1 and par 2(a) seeks discovery of the 'Amended Category' as defined, then that aspect of his application effectively looks to replicate part of the discovery application pursued by the first defendant, Mineralogy, and which I have now urgently programmed to be determined on the papers.
To the extent Mr Palmer wishes to participate in such written arguments by putting in a written submissions as to his own position, albeit with Mineralogy asking for an extra category of documents (that is, category 1(xix)) - Mr Palmer can be heard in that respect in writing. If the application of Mineralogy succeeds, he will as well be entitled, of course, to any further documents ordered to be produced for inspection.
The direction I have already made extends to allowing a written submission by other parties (including Mr Palmer) after Mineralogy has put in its written submissions by 28 January 2022 on this aspect of its further and better discovery application.
That, however, leaves a further discrete discovery request under Mr Palmer's chamber summons of 17 January 2022, by pars 2(b) and (c).
These categories of further documents as sought by Mr Palmer are inextricably tied in a relevance sense, for trial, to his pleas which have only recently emerged under Mr Palmer's most recent iteration of his latest amended defence pleading. This is Mr Palmer's fourth further amended defence to the consolidated further re-amended statement of claim, as filed on 13 January 2022 ('P4FAD') (see folio 333).
But the directions as counter proposed today by the plaintiffs, vis-à-vis Mr Palmer under par 3 of their minute, seek that pars 2(b) and 6 through 33 and 15A to 15AJ of Mr Palmer's latest defence pleading effectively be struck out. This is sought on the basis that those pleas are not consequentially responsive defence amendments - and so leave was required for them. Leave was required for such amendments of that character to be made. Leave to that end obviously was not obtained by Mr Palmer.
Further subsidiary arguments presented in terms of what Mr Palmer has done under aspects of his latest defence pleading. It is apparent that his discovery requests under his chamber summons for the further documents, effectively, from a relevance standpoint, depend upon his impugned defence pleas (that required leave) being successfully maintained. If those pleas were not truly responsive pleas, and are not maintained, then there is no other legitimate basis for the extra documents that the requests of Mr Palmer now seek in any event.
Clearly, the defence plea paragraphs now challenged by the plaintiff, under par 3 of its minute of orders, required leave.
These components of Mr Palmer's amendments were plainly not of the character of consequential defence amendments responding to the last iteration of changes to the statement of claim, and which are now a subject matter of the consolidated statement of claim.
Effectively, the most recent limited statement of claim consolidation amendments, in respect of which my leave was given, and in respect of which consequential leave to respond by an amended defence plea was also given, deal with the limited and discrete issues around the so termed MCP Subset of Requested Areas - and a November 2021 request as issued for the plaintiffs in respect of further tenure sought from Mineralogy by the plaintiffs.
It is apparent, as one looks at par 2(b) and then at pars 6 through to 33 of Mr Palmer's most recent P4FAD, and in particular at his par 33 (which proceeds under the heading 'Project Fulcrum') that what Mr Palmer has attempted via his par 33 plea is to effectively pick up at there holus bolus many of what were former defence plea paragraphs by Mineralogy. But those paragraphs have been ruled upon. They were struck from one of Mineralogy's earlier defences under my reasons dealing with the successful challenges against those Project Fulcrum pleas of Mineralogy (see Sino Iron v Mineralogy [No 3] and schedule C therein).
Such struck out defence pleas are identified at [149] of those reasons (see Sino Iron v Mineralogy [No 3] [2021] WASC 384). So, for instance, an observed plea under par 15R, which Mr Palmer's current defence par 33 would seek to pick up and to incorporate by reference, would revive in the latest defence of Mr Palmer. That plea is plainly not a consequential amendment responding legitimately to the most recent changes to the plaintiffs' statement of claim.
Paragraph 33 of Mr Palmer's recent defence pleading and what follows in the next 12 pages, is also a likely abuse of process - effectively picking up, again, material I have ordered vis-à-vis Mineralogy be struck out for the reasons as earlier given. It is sufficient to say presently that those recently added paragraphs of Mr Palmer would have required leave. They are not legitimate consequential amendments to Mr Palmer's defence. They will therefore be struck out as the plaintiffs' minute seeks.
Should Mr Palmer wish to bring a further application in order to obtain leave in respect of those paragraphs in his defence pleading, then he is, of course, at liberty to bring such an application. But a basis for his application for further discovery, pars 2(b) and 2(c) of his chamber summons, is predicated in relevance upon a survival of those paragraphs - then, plainly, they have not survived. Consequently, his application for those documents cannot presently succeed and must also be dismissed.
In terms of Mr Palmer's chamber summons, I dismiss pars 2(b) and 2(c). I will also strike out pars 2(b) and 6 to 33 (inclusive of pars 15A to 15AJ) from Mr Palmer's current fourth further amended defence to the consolidated further reamended statement of claim as sought by the plaintiffs' minute.
Effectively, I am making the order as sought in terms of par 3 of the plaintiff's minute of orders as regards that defence pleading of Mr Palmer.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
PP
Research Associate to the Honourable Justice K Martin
1 FEBRUARY 2022