Evidence - Defendants' expert reports - Whether summaries of evidence permissible - Consideration of Potts v Miller - Whether the matters raised in report are beyond the pleaded case

(a) the expert valuation report of Mr Campbell Jaski dated 8 September 2017 (the Jaski Report), which was prepared for, and filed in, proceedings in the Supreme Court of Queensland between the special purpose liquidators of Queensland Nickel Pty Ltd (QNI), being Mr Stephen Parbery and Mr Michael Andrew Owen, and QNI Metals Pty Ltd, being Proceeding No. BS 6593/17;[1]

(b) the expert report of Mr Scott Birkett dated 20 February 2025 (the Birkett Report),[2] which was prepared for the purposes of the present action and which relies on the opinions expressed in the Jaski Report; and

(c) the expert report of Ms Suelen McCallum dated 14 February 2025, but filed on 20 February 2025 (the First McCallum Report).[3]

1. The expert reports filed on behalf of the CITIC Parties, which are addressed in these reasons, are as follows:[4]

(a) the expert report of Mr Greg Meredith titled 'Accounting Report' dated 14 April 2025 (the Meredith Accounting Report);[5]

(b) the expert report of Mr Meredith titled 'Conceptual Loss Report' dated 18 April 2025 (the Meredith Conceptual Loss Report);[6] and

(c) the expert report of Mr Meredith titled 'Critique of Conoulty Report' dated 23 April 2025 (the Meredith Critique Report).[7]

1. These reasons should be read together with the reasons published on 23 May 2025, in which the Court ruled on the CITIC Parties' objections to the fresh expert reports filed by the Palmer Parties on 13 May 2025, prepared by Ms Suelen McCallum[8] and Ms Rebecca Conoulty,[9] referred to as the Second McCallum Report and the Second Conoulty Report: Palmer v CITIC Ltd [No 15].[10]
2. Within those earlier reason, the Court concluded that the Second McCallum Report and the Second Conoulty Report were not filed in accordance with the orders of the Court, in that the material in those reports was not properly responsive to the expert evidence of Mr Meredith concerning topics 4 or 5 (as described in the orders of the Court made on 15 January 2025). Further, the loss case which appears in the Second Conoulty Report, based on the Counterfactual Cash Flows, fell outside the Palmer Parties' pleaded case and, if presented at trial, would properly require that the plaintiffs seek leave to amend their pleadings in order to run that case.
3. In the course of those earlier reasons, I noted that two additional points remained to be addressed.
4. At [56], I observed that senior counsel for the Palmer Parties submitted that the Meredith Conceptual Loss Report raised issues which fell outside the CITIC Parties' pleaded case. This issue, which was the subject of oral submissions made on 29 May 2025, is now addressed in these reasons.
5. Further, at [55] and [56], I observed that, in the event I ruled against them, the Palmer Parties had not sought leave to rely on the Second McCallum Report or the Second Conoulty Report. No application for leave has been made by the Palmer Parties since the determination on 23 May 2025.

C. The Palmer Parties' claim for loss and damage

1. The background to the action and the nature of the claims can be seen from the earlier reasons of the Court, which also address the scope of the expert evidence orders made on 15 January 2025.
2. The Palmer Parties contend that the loss that is recoverable in this action is the loss occasioned by the reduction in value in the Yabulu Refinery upon its ceasing to operate as a going concern on 18 January 2016. Specifically, the Palmer Parties have submitted, in their opening trial submissions, that they will ask the Court to assess their loss as being the difference between:[11]

(a) the value of the Yabulu Refinery as a going concern on 18 January 2016, being a figure in the range of A$1.048b (as appears from the First Conoulty Report) to A$1.950b (as appears in the FY2017 Audited Accounts);

(b) less a figure in the range of $nil to $227m, being the value upon ceasing as a going concern.

1. The latter range of figures is to be assessed by reference to the Birkett Report and the Jaski Report.
2. The CITIC Parties deny the claim and plead that the value of the Yabulu Refinery, as at 30 June 2015 and as at the date of appointment of administrators, was substantially less than the combined value of the net assets of QNM and QNR as set out in the audit special purpose financial reports identified.[12]
3. The Palmer Parties had proposed to call Mr Birkett as an expert witness at trial, but did not propose to call Mr Jaski. The two reports have a connection. Within his report, Mr Birkett adopted the methodology employed by Mr Jaski in his report to calculate the fair market value of the Yabulu Refinery. The indication that Mr Jaski would not be called, and Mr Birkett's intended reliance on the opinions of Mr Jaski were, understandably in my respectful view, at the forefront of the CITIC Parties' objections to both reports.

1. The Jaski Report was sought to be tendered by the plaintiffs through the further amended witness statement of Mr Daren Wolfe dated 2 May 2025 and as a business record pursuant to the provisions of s 79C(2a) of the Evidence Act 1906 (WA).[13]
2. As noted above, the plaintiffs did not propose to call Mr Jaski as a witness at trial. By tendering the Jaski Report as a business record, without calling Mr Jaski, the Palmer Parties seek to have the report admitted for its testimonial effect, as to the facts and opinions therein stated, notwithstanding the hearsay rule.
3. The defendants objected to the tender, contending the Jaski Report is not a business record of QNI and, in any event, unless Mr Jaski is called the report should not be admitted as expert opinion evidence in this action.
4. Mr Wolfe is the former Chief Financial Officer of the Queensland Nickel Group of Companies, which included QNI. He was employed within the finance department of QNI from 1990 through until 2016.
5. In his witness statement, Mr Wolfe proposes to give the following evidence, which expressly refers to the Jaski Report:

[312] On 29 August 2017, Campbell Jaski (a Partner at a consulting firm known as PPB Advisory) and Tyson Symons (a Director at PPB Advisory) on the instruction of the Special Purpose Liquidators of QNI (SPLs), visited the Refinery as part of the SPL's preparation of a valuation of the QN Group's assets at the Refinery for the purposes of Supreme Court of Queensland Proceeding BS6593/17. They advised me during that visit that they had already been provided with a copy of the FY15 Valuation Model by the General Purpose Liquidators. Subsequent to their visit to Townsville I also provided Mr Jaski and Mr Symons with a copy of the July 2017 financial evaluation model and the July 2017 financial evaluation model incorporating roaster gas conversion [MIN.001.140.0015]; [MIN.001.140.0016]; [MIN.001.140.0017].

[313] Subsequent to that visit, Mr Jaski prepared a valuation report dated 8 September 2017 (Jaski Report): [MIN.001.136.1940].

1. Mr Wolfe is scheduled to give evidence on behalf of the plaintiffs at the trial of the action commencing on 3 June 2025.
2. The plaintiffs have produced a copy of the Jaski Report to the Court, as an attachment to the affidavit of Ms Tracey Robinson sworn 14 May 2025.[14] In the form produced, the report is found within an affidavit sworn by Mr Jaski on 8 September 2017, being an affidavit filed in proceedings in the Supreme Court of Queensland on behalf of the special purpose liquidators of QNI.
3. The Jaski Report itself is described as an expert witness report, which was prepared on the instructions of King & Wood Mallesons, the solicitors acting for the special purpose liquidators of QNI. Mr Jaski identifies himself within the report as a partner at PPB Advisory and the national head of the valuation advisory practice, with over 20 years' professional experience in valuations, corporate finance and major projects.[15]
4. Mr Jaski also identifies his qualifications, which include a Bachelor of Science (Honours) and Master of Business Administration from New York University and Melbourne Business School, as well as accounting, valuation, and mining and metallurgy-related qualifications.[16]
5. Mr Jaski summarises his instructions in the report as follows:[17]

[9] I have been engaged by King & Wood Mallesons ('Instructing Solicitors'), solicitors acting for the Special Purpose Liquidators ('SPLs') of Queensland Nickel Pty Limited (in liquidation) ('QN') to prepare an expert witness report providing my opinion as to the value of the Yabulu Nickel Refinery ('Refinery').

[10] Specifically, I have been instructed to:

(a) determine the Market Value of the Refinery as at 31 August 2017

(b) determine the auction realisation value of the assets of the Refinery as at 31 August 2017

(c) review and consider the preliminary assessment of realisable value of the Refinery conducted by Mr Notaras, on the basis of his statements in the affidavit sworn 21 August 2017, and to determine whether Mr Notaras' approach and methodology is appropriate in all the circumstances.

1. The Jaski Report is a complex document, as one might expert of an expert report in which the author is called upon to determine the market value of a nickel refinery and the auction realisable value of the refinery's assets. Some brief observations about the Jaski Report should be made, in order to put the report into context:

(a) The report is based on instructions given to Mr Jaski by the solicitors acting for the special purpose liquidators (at [11] and Appendix B).

(b) Mr Jaski attended the Yabulu Refinery in August 2017 for the purpose of his valuation and viewed the assets and tailings dam, and made various observations which are recorded in the Jaski Report (at [12] and Section E).

(c) In assessing the market value of the Yabulu Refinery, Mr Jaski valued the refinery using the discounted cash flow or DCF methodology and relied on a financial model created by management, which forecasted a restart of the refinery and ongoing operations into perpetuity. Further, he updated the cash flow model prepared by Mr Wolfe (described as the Management Model) to reflect market conditions on the valuation date and his assessment of the relative risk associated with the cash flows, with certain key inputs being adjusted as indicated (at [13] - [14] and Section F).

(d) Mr Jaski selected an appropriate discount rate to be applied based on certain matters which were appropriate in his professional opinion (at [15] and Section F).

(e) Mr Jaski considered it appropriate to value the asset as if it were marketable, and then apply a discount for any potential lack of marketability to then arrive at the market value. He considered a generally accepted discount for the lack of marketability ranged between 20% to 50%, which was said to be supported by a number of empirical studies, and ultimately applied a discount of 30% to account for the lack of marketability of the Yabulu Refinery (at [18] - [19] and Section H).

(f) As part of his instructions, Mr Jaski was instructed to review and consider the preliminary assessment of realisable value of the Refinery conducted by another valuer, Mr Notaras, on the basis of statements in the affidavit sworn by Mr Notaras, and to determine whether Mr Notaras' approach and methodology was appropriate in all the circumstances. Mr Jaski expressed various opinions in relation to that affidavit including adverse opinions as to his methodology (at [31] - [39] and Sections I and J).

(g) Mr Jaski noted he had assistance from various other personnel in preparing his report (at [42] and Section I).

(h) Finally, Mr Jaski identified a number of limitations with his engagement, which I should extract in full:

[56] This engagement is defined as a Limited Scope Valuation Engagement under APES 225 Valuation Services. This valuation engagement is limited due to the limited time I have had to undertake this engagement. As a result of the limited time, I have been unable to:

(a) assess the reasonableness of the production forecasts and operating costs contained in the Management Model

(b) assess the reasonableness of the refinery restart costs and time required for restart

(c) assess the reasonableness of the environmental rehabilitation costs and requirements

(d) commission a property valuation to assist with the determination of the auction realisation value of the Refinery assets

(e) commission a plant and equipment valuation to assist with the determination of the auction realisation value of the Refinery assets.

[57] I note that if a Valuation Engagement had been performed (and I had been able to complete the above tasks) then the results may have been different.

1. The defendants' objection, and the basis on which the plaintiffs' pressed the tender of the Jaski Report, were developed in oral submissions at the hearings on 24 April, 5 May and 29 May 2025, as well as in the written submissions filed on behalf of the defendants[18] and on behalf of the plaintiffs.[19]

(2) Section 79C of the Evidence Act

1. Section 79C(1), (2) and (2a) provide as follows:[20]

(1) Subject to subsection (2), in any proceedings where direct oral evidence of a fact or opinion would be admissible, any statement in a document and tending to establish the fact or opinion shall, on production of the document, be admissible as evidence of that fact or opinion if the statement -

(a) was made by a qualified person; or

(b) directly or indirectly reproduces or is derived from one or other or both of the following -

(i) information in one or more statements, each made by a qualified person;

(ii) information from one or more devices designed for, and used for the purpose of, recording, measuring, counting or identifying information, not being information based on a statement made by any person.

(2) Where a statement referred to in subsection (1) is made by a qualified person or reproduces or is derived from information in a statement made by a qualified person, that person must be called as a witness unless -

(a) he is dead;

(b) he is unfit by reason of his bodily or mental condition to attend or give evidence as a witness;

(c) he is out of the State and it is not reasonably practicable to secure his attendance;

(d) all reasonable efforts to identify or find him have been made without success;

(e) no party to the proceedings who would have the right to cross examine him requires him to be called as a witness;

(f) having regard to the time which has elapsed since he made the statement and to all the circumstances, he cannot reasonably be expected to have any recollection of the matters dealt with in the statement;

(g) having regard to all the circumstances of the case, undue delay, inconvenience or expense would be caused by calling him as a witness; or

(h) he refuses to give evidence.

(2a) Notwithstanding subsections (1) and (2), in any proceedings where direct oral evidence of a fact or opinion would be admissible, any statement in a document and tending to establish the fact or opinion shall, on production of the document, be admissible as evidence of that fact or opinion if -

(a) the statement is, or directly or indirectly reproduces, or is derived from, a business record; and

(b) the court is satisfied that the business record is a genuine business record.

(2b) Where a statement referred to in subsection (2a) is made by a qualified person that person shall not be called as a witness unless the court orders otherwise.

(3) This section makes a statement admissible notwithstanding -

(a) the rules against hearsay; or

(b) the rules against secondary evidence of the contents of a document; or

(c) that the person who made the statement or the person who made a statement from which the information in the statement is reproduced or derived is a witness in the proceedings, whether or not he gives evidence consistent or inconsistent with the statement; or

(d) that the statement is in such a form that it would not be admissible if given as oral evidence,

but does not make admissible a statement which is otherwise inadmissible.

(5) For the purposes of this section a court may -

(a) for the purpose of deciding whether or not a statement is admissible as evidence, draw any reasonable inference from the form of contents of the document in which the statement is contained, or from any other circumstances;

(b) in deciding whether or not a person is fit to attend or give evidence as a witness, act on a certificate purporting to be the certificate of a registered medical practitioner.

(6) For the purposes of this section a court may, in its discretion, reject a statement notwithstanding that the requirements of this section are satisfied with respect thereto, if the court is of the opinion that the probative value of the statement is outweighed by the consideration that its admission or the determination of its admissibility -

(a) may necessitate undue consumption of time; or

(b) may create undue prejudice, confuse the issues, or in proceedings with a jury mislead the jury.

1. As is evident from the text, and as explained by Smith J in Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 23],[21] s 79C(1) and s 79C(2) apply to documents in general and s 79C(2a) and s 79C(2b) apply solely to 'business records' as that term is defined. Further, s 79C(1) and s 79C(2a) apply to statements made by a qualified person, including statements tendered for the truth of the contents recorded in a document by third party. Finally, s 79C(1)(b) and s 79C(2a) apply to statements that are not made by a qualified person.
2. The legislation defines the term 'business record' to mean:[22]

a book of account or other document prepared or used in the ordinary course of a business for the purpose of recording any matter relating to the business;

1. The term 'qualified person', in relation to a statement, is defined to mean a person who:[23]

(a) had, at the time of making of the statement, or may reasonably be supposed to have had at that time, personal knowledge of the matters dealt with by the statement; or

(b) where the statement is not admissible in evidence unless made by an expert on the subject of the statement, was at the time of making of the statement such an expert;

1. At the outset of the analysis, it is appropriate to echo the observation of Howard J in Energy Resources Ltd v Cactus Wellhead Australia Pty Ltd[24] that the production of contested expert evidence in documentary form through the business records provision is 'not, obviously enough, the normal way in which expert opinion evidence is put before the Court'.[25]
2. Against this, but without lessening the force of his Honour's general observation concerning the adduction of expert evidence, it should be recognised that s 79C is a remedial provision which is to be construed liberally and not pedantically. As Solomon J noted in Rhodes v De Castro [No 2],[26] these provisions operate to permit second-hand or 'double' hearsay to be admitted. I refer to the principles summarised by his Honour in that decision at [27] - [33], which I have applied in assessing the admissibility of the Jaski Report, but which need not be repeated here.
3. The submissions advanced by the parties require several issues to be addressed in assessing the admissibility of the Jaski Report for the purposes of trial, which are identified below.

(a) Whether the Jaski Report is a 'business record'

1. First, it is necessary for the plaintiffs to demonstrate that the Jaski Report falls within the definition of a 'business record' in s 79B. The term is defined to mean 'a book of account or other document prepared or used in the ordinary course of a business of the purpose of recording any matter relating to the business'. The plaintiffs contend the Jaski Report is a 'business record' as defined in s 79B and is admissible as such pursuant to s 79C(2a).
2. As is evident from the text, there are two limbs to the definition of 'business record', namely a document 'prepared' in the ordinary course of a business and a document 'used' in the ordinary course of a business. The plaintiffs rely on the second limb in support of the tender. The evidence adduced in the affidavit of Ms Robinson purports to show, according to the plaintiffs, that the Jaski Report was used in the ordinary course of QNI's business by the special purpose liquidators for the purpose of recording the value of the Yabulu Refinery.
3. On either limb, the document must have been prepared or used 'for the purpose of recording any matter relating to the business'.
4. The evidence relied upon by the plaintiffs to demonstrate that the Jaski Report was used in the ordinary course of the business of QNI consisted of two documents.[27]
5. The first of these was a report dated 2 May 2019 which was prepared by Mr Parbery for the purposes of estimating the quantum of the claims of creditors of QNI (titled the Estimated Outcome Report).[28] The second document was the further affidavit of Mr Parbery sworn on 5 August 2019 (Second Parbery Affidavit), filed in the Federal Court of Australia in support of an application for judicial approval of a settlement.[29] Neither of these documents establishes, on my assessment, that the Jaski Report was used in the ordinary course of the business of QNI.

1. The purpose of the Estimated Outcome Report was to provide a high-level estimate of the dividend payable to both priority and unsecured creditors of QNI in five specific scenarios (see [1.1.1]). Within the Estimated Outcome Report, Mr Parbery, in his capacity as one of the special purpose liquidators of QNI, made reference to the Jaski Report.
2. For example, at [4.2.1(a)], Mr Parbery stated that the value of the Yabulu Refinery in a high case was based on the 'high market value of the Refinery provided in paragraph 20 of the Jaski Report'. At [4.2.1(b)], Mr Parbery stated that the value of the Yabulu Refinery in a low case is based on the 'low auction value of the Refinery assets provided in paragraph 30 of the Jaski Report'.
3. The plaintiffs submitted that this is clear evidence that the special purpose liquidators of QNI were using the Jaski Report for the purpose of recording the value of the Yabulu Refinery, as a 'critical integer of estimating the returns to creditors'.[30]
4. In my view, this overstates the manner in which the Jaski Report was being used, and ignores the fact the Jaski Report was being used to advance claims in the litigation in the Supreme Court of Queensland. Specifically, the Estimated Outcome Report was prepared by Mr Parbery for the purposes of the proceedings in the Supreme Court of Queensland, in respect of the special purpose liquidators' claims against the 1st to the 19th defendants, as is apparent from [3] of the First Parbery Affidavit.
5. The Estimated Outcome Report was not being used in the ordinary course of QNI's business, but rather as evidence in support of contested claims in litigation. That is far from being in the ordinary course of the business of the entity concerned, even recognising that the business was then in liquidation and the role of the special purpose liquidators was to advance claims.
6. I also disagree that the Estimated Outcome Report somehow shows that the Jaski Report was being used as part of the contemplated further or ongoing recording of information by or on behalf of the business. As the defendants' correctly submitted, the position can be contrasted with the situation considered by Smith J in Wright Prospecting, an authority upon which the plaintiffs relied in its submissions.
7. In Wright Prospecting, the Court was required to consider the tender of the 'Sceales Files'. Those files contained an extract of a transcript of statements made by Mrs Rinehart recorded in a public examination by her on oath in previous bankruptcy proceedings.
8. It was asserted that the Sceales Files were 'prepared in the ordinary course of business of HPPL, for the purpose of recording any matter relating to the business of HPPL being matters that were considered to be relevant to the 1988 Plan' (at [24]). It was further argued that 'the Sceales Files were used by HPPL from time to time in relation to proceedings that were bought against HPPL by Rose Porteous' and were also used by Mrs Rinehart in her capacity as trustee of a trust for the business of that trust (at [25]).
9. Importantly, the evidence disclosed that the Sceales Files had been compiled by the information manager for HPPL in the 1990s and early 2000s and the files comprised documents he considered to be relevant to the 1988 Plan. Further, the evidence indicated that the information manager delivered a copy of the documents to tax advisers thereafter (at [33]).
10. Having assessed this evidence, and given the earlier findings made by Ward CJ in Eq in proceedings in the Supreme Court of New South Wales that the Sceales Files were used by Mrs Rinehart in her capacity as trustee of the trust in the administration of the trust, Smith J found that the relevant transcript was used for the purpose of giving legal advice to Mrs Rinehart in her capacity as trustee of this trust. Smith J regarded that 'use' as being properly characterised as for the purpose of recording any matter relating to the trust and in the ordinary course of business (at [37] and [38]). Smith J concluded as follows:[31]

[38] The question is then whether the document was used in the ordinary course of a business, in the sense of, can the business of the HMH Trust be properly characterised as a business within the meaning of that term in s 79B and s 79(2a). The answer to this question must be yes.

[39] The sole asset of the HMH Trust is shares in HPPL, whereby HPPL is the ultimate holding company of HDIO, whose interest in the Hope Downs mining project underlies the value of the trust property.[31] A 'business' is widely defined in s 79B for the purposes of s 79C. A 'business' is defined in s 79B to mean any business, occupation, trade or calling, which definition would extend to a trust engaged in holding valuable assets for the benefit of the beneficiaries, which is required from time to time to apply income from those assets for the benefit of the beneficiaries.

[40] In addition, when regard is had to the findings made by Ward CJ in Eq that HPPL had compiled the Sceales Files, and had used the information contained in those files when obtaining legal advice, it is clear that this court can be satisfied that the Sceales Files were prepared and used in the ordinary course of the business of HPPL, for the purpose of recording any matter relating to the business of HPPL, being the recording of matters which were relevant to Bankruptcy proceedings and were used for preparation of legal advice.

[41] For these reasons, the statements made by Gina Rinehart in the Bankruptcy examinations recorded in the transcript in Vol 1 of the Sceales Files are admissible as a business record pursuant to s 79C(2a). The evidentiary weight of the statements made by Gina Rinehart recorded in the extract of the transcript of evidence is not a matter that goes to admissibility but should be addressed in further submissions.

1. In reaching this view, Smith J had earlier noted that it was not sufficient to conclude that a document which had been prepared by a third party and was found in the files of a business was thereby admissible as a business record 'simply because it was filed and kept by the business'.[32]
2. In this regard, her Honour made reference to the statement of Beech J (as his Honour then was) in McKay v Commissioner of Main Roads to the effect that, if a business uses an externally generated document as a record of information relating to its business, it does not thereby use the document for the purpose of recording any matter relating to the business within the meaning of the definition of business record, but it does so only if there is or it is contemplated that there will be some further or ongoing recording of information by or on behalf of the business.
3. The point was examined by Edelman J in Agricultural Land Management Ltd v Jackson, as Smith J in fact noted in her reasons, where Edelman J held:[33]

[A]s a matter of textual construction where a document is merely received from an external source it is difficult to construe the mere receipt and retention of the document as amounting to a 'use' for the 'purpose of recording any matter relating to the business'. Except perhaps in an exceptional case in which the business is itself concerned with the recording of that information, something more than mere receipt and retention will be required. For instance, as I explain below, that 'something more' might be the receipt by a banker of documents by a banker which are used as record for the purpose of the bankers running account. Or it might be the receipt of documents which are used as a record for the purposes of preparation of audited accounts of the business.

1. Returning to the point made at [45] above, the defendants' submission that the conclusion of Smith J in Wright Prospecting does not assist the plaintiffs must be accepted. The manner in which the Jaski Report is referred to in the Estimated Outcome Report is 'different from evidence showing the use of a document by the information manager of a business to record matters relevant to legal proceedings and to obtain legal advice for th[34]business'.34

1. I can next turn to the Second Parbery Affidavit, which was filed in proceedings in the Federal Court of Australia in support of an application pursuant to s 477(2A), s 477(2B) and s 479(3) of the Corporations Act 2001 (Cth) in respect of two settlement arrangements. Mr Parbery deposed in the affidavit that Mr Jaski was giving evidence in litigation on his behalf (at [32]), as follows:

The value of the Refinery is an issue in the Supreme Court Proceedings (as it affects the likely recovery from the Joint Venturers). The evidence currently being given by Mr Campbell Jaski on my behalf is to the effect that the Refinery is worth approximately $119.4 million to $168.3 million. However, due to the passage of time and the content of a number of documents that have now been discovered, Mr Jaski's opinion (as he had advised me, and I believe) is that the Refinery will be of lower value and perhaps as little as a maximum of $120 million. The Refinery has been lying dormant since 2016.

1. I accept the submission of the defendants that this is not a use in the ordinary course of QNI's business. It is no more than a reference to the fact the Jaski Report was prepared for use in contested litigation, and says nothing to the effect that the report is being used as part of the further or ongoing recording of information by or on behalf of the business. This position is not altered by the reference to the Jaski Report in the opinion of counsel which is exhibited to the Second Parbery Affidavit.

1. The conclusion I reached was thus that the plaintiffs had not demonstrated that the Jaski Report was a 'business record' for the purposes of s 79C(2a).
2. The submission of the plaintiffs that the documentary material above shows the special purpose liquidators were using the Jaski Report 'as a repository of information relevant to QNI's business' and 'continuing to obtain and rely' on the Jaski Report after the finalisation of the Estimated Outcome Report, gives no weight to the proper context in which the opinion of Mr Jaski as detailed in the Jaski Report was being deployed.
3. The Jaski Report was prepared by Mr Jaski, a third party to the QNI business, for use in litigation as an expert report. It was no doubt intended that Mr Jaski would be called to explain his opinions to the Supreme Court of Queensland at trial and be cross-examined. The Jaski Report was then used thereafter by the special purpose liquidators in order to advance their claims in the proceedings in the Supreme Court of Queensland, and thereafter to seek Federal Court approval for a settlement.
4. These are not matters in the ordinary course of business for QNI.
5. Outside of the ongoing legal proceedings in the two Courts just mentioned, there is no basis to conclude that it was contemplated there would be some further or ongoing recording of information by or on behalf of the QNI business using the Jaski Report.

(b) Whether 'statements' in the Jaski Report have been identified

1. Second, it is ordinarily necessary, for the proper operation of s 79C(2a), for the party relying on the provision to identify the 'statements' in the document which are said to establish a particular 'fact or opinion'. The text of s 79C(2a) in the chapeau, as well as within par (a), both emphasise the focus upon such 'statements'.
2. The plaintiffs did not seek to identify any particular statements in the present case. That approach was explained by reference to the nature of the document, being an expert report containing the opinions of Mr Jaski, such that it would be inappropriate to dissect the document into individual statements separated from the balance of the report.
3. At one level, that position is understandable. An expert report should be read as a whole and there would be inevitable criticism directed at the tender of particular statements within the report once those statements are separated from the context of the entire document, including the bases on which the opinions are expressed, as well as the limitations and the assumptions.
4. In this context, while I do not necessarily regard the plaintiffs' decision to refrain from identifying particular statements in the Jaski Report for the purposes of s 79C(2a) as an obstacle to the tender, it nonetheless tends to highlight the inappropriateness of tendering a detailed expert report such as this, to be relied upon at trial for testimonial effect, through the business record provision.

(c) Whether the Court should otherwise order pursuant to s 79C(2b)

1. Third, the defendants placed emphasis on s 79C(2b), which I have extracted earlier in these reasons. That provision has application where the statements are made by a 'qualified person', but establishes a default position that the person not be called as a witness.
2. The defendants submitted that, even if the Court was satisfied that the Jaski Report was a 'business record' for the purposes of s 79C(2a), it would be an appropriate case to 'order otherwise' and require that Mr Jaski be called as a witness, being a 'qualified person' as defined in s 79B.[35]
3. Had I been satisfied that the Jaski Report was a 'business record', I would have required Mr Jaski be called to give evidence as a witness, in the interests of justice.[36] That would be appropriate, in my view, for substantially the same reasons I consider the tender of the Jaski Report ought to be rejected pursuant to s 79C(6), as explained below.

(d) Discretionary rejection pursuant to s 79C(6)

1. Fourth, even where the Court is satisfied a document is a 'business record' for the purposes of s 79C(2a), the Court is empowered to reject the statements within the 'business record' which are sought to be relied upon, pursuant to s 79C(6).
2. This is a discretion vested in the Court to reject the admission on certain grounds.
3. In my view, even if I had been satisfied the Jaski Report was properly to be regarded as a 'business record', I would have considered it appropriate to reject the tender on the basis proposed by the plaintiffs, that is the tender of the report without calling Mr Jaski.
4. Discretionary rejection pursuant to s 79C(6)(b) would have been appropriate for the following combination of reasons:

(a) The Jaski Report was originally prepared as an expert report for proceedings in the Supreme Court of Queensland in circumstances which it would have been tendered through the author, who would have been made available for cross-examination in the ordinary course. The author prepared the report on the basis of certain instructions he was given by the special purpose liquidators' solicitors, in contested litigation. In saying that, I of course assume at this stage that the author expressed his opinions within the report both honestly and fairly. Nonetheless, the course now proposed by the Palmer Parties, to tender this report in the absence of Mr Jaski, is inconsistent with the basis on which the report was originally prepared.

(b) The Jaski Report is relied upon by the Palmer Parties as a critical integer of its loss and damage case. The report is not relied upon to establish a subsidiary or incidental fact in the case, in respect of which there might be competing documentary evidence which the Court could assess as a whole. The Jaski Report is of substantial significance in the case as an evidentiary item.

(c) The nature of the facts stated, and opinions expressed, within the Jaski Report requires, as a matter of fairness in the litigation process, that the defendants be afforded the opportunity to test the author of the report on the matters contained therein. This is particularly important where the Palmer Parties seek to rely on the entirety of the Jaski Report rather than on any specific statements therein, which reinforces the need for the author to be called, in my view.

(d) Allied to the preceding point, the Jaski Report is a complex document, containing numerous facts and opinions. The report also includes assumptions and limitations. The precise manner in which the Court would ultimately receive such a report, over objection, without the author being called, and then undertake an assessment of its weight and utility for the purposes of reaching final conclusions in this action, is fraught with some risk.

(e) In the circumstances, the probative value of the Jaski Report would be heavily outweighed by the significant prejudice to the defendants at trial in being denied the opportunity to cross-examine Mr Jaski. As the defendants correctly submitted, that prejudice is not remedied by affording the defendants an opportunity to file responsive evidence. The opinions of Mr Jaski might be tested in that way, but the most appropriate and indeed the conventional way in which to test the opinions of expert witnesses is to have them called to testify at trial to explain their opinions to the Court.

(f) Further to this, the approach proposed by the plaintiffs precludes any opportunity for conferral between experts, in the usual way, in order to afford the experts an opportunity to refine and narrow matters in dispute and thereby provide greater assistance to the Court as to the true issues remaining in dispute which require expert assistance.

(g) As to the probative value of the Jaski Report, it is notable the report is now some 8 years old. Further, there are indications within the Second Parbery Affidavit, which was sworn 6 years ago, that even then the Jaski Report was out of date.

1. For the foregoing reasons, I concluded that the Jaski Report was not a 'business record' for the purposes of s 79B and s 79C(2a) and in any, the tender of the report should be rejected pursuant to s 79C(6)(b) or should not be received unless Mr Jaski is called pursuant to s 79C(2b).

1. Mr Birkett is a director of the accounting firm BDO with experience in valuations. The expert report of Mr Birkett provides an opinion relating to the Jaski Report and the fair market value of the Yabulu Refinery on 18 January 2016, on the assumption that QNI did not have the funds necessary to continue to manage and operate the business.
2. The specific questions asked of Mr Birkett by the plaintiffs' instructing solicitors were (at [2.2.1]):

(a) What is your opinion(s) about the valuation methodologies applied by Mr Jaski in the Jaski Report; and

(b) Having regard to your answer to question 1, what was the fair market value of the Joint Venture business immediately after Queensland Nickel Pty Ltd ('QNI') entered voluntary administration on 18 January 2016. For the purposes of answering this question, I am to assume that QNI did not have the funds necessary to continue to manage and operate the Joint Venture business.

1. Mr Birkett states that his report is 'reliant on the analysis conducted in the Jaski Report' and that in providing the opinions set out in his report, he has 'primarily had regard to the Jaski Report'.[37]
2. The following features of Mr Birkett's Report should be noted:

(a) Mr Birkett noted that his valuation work was 'limited in scope due to the short time frame for production' of the report and his views 'being based, broadly, on the work conducted in the previous expert valuation by Mr Campbell Jaski' and so the 'same limitations of that expert's work ... apply to my work also' (at [1.3.2]).

(b) Mr Birkett had 'not traced back to source the information or the data used in the Jaski Report (except where explicitly stated), nor reperformed his calculations' and, notwithstanding that, he 'did not identify any errors in [his] analysis of the Jaski Report' (at [1.3.3]).

(c) Mr Birkett had been instructed to provide a fair market valuation of the Yabulu Refinery as of 18 January 2016 which is 'reliant on the analysis conducted in the Jaski Report, which adopts a valuation date of 31 August 2017' (at [1.3.4]). Mr Birkett states that, in providing the opinions set out in his report, has 'primarily had regard to the Jaski Report' (at [2.3.1]).

(d) Mr Birkett was not provided with the financial statements for the Refinery beyond 30 June 2015 up to the instructed valuation date, but despite the difference in valuation dates, he 'did not consider this to have a material impact on the valuation outcome' (at [1.3.4]).

(e) Mr Birkett concluded that, '[i]n broad terms I concur with the basis of the conclusions of the Jaski Report and the valuation methodologies he applies' (at [2.5.1]). Mr Birkett then expressed views, in section 2.6 of his report, in relation to the fair market value of the Yabulu Refinery immediately after QNI entered voluntary administration on 18 January 2016. In essence, Mr Birkett opined as follows (at [2.6.1] to [2.6.8]):

(i) in circumstances of financial distress, his experience indicates assets like the Yabulu Refinery can have materially impaired values (relative to their recorded book values);

(ii) he adopted the same methodology as the Jaski Report to calculate the fair market value of the Refinery on an auction realisation basis;

(iii) while the valuation date he was instructed to use was not the same as the valuation date used by Mr Jaski, his letter of instruction highlighted that the operator of the Joint Venture business was put into administration as at the valuation date Mr Birkett was instructed to use, and he did not believe the level of distress and uncertainty associated with the Yabulu Refinery was materially different between the valuation dates to warrant a change in methodology;

(iv) Mr Birkett could not be confident that a realisation of the Yabulu Refinery assets would result in net proceeds greater than nil and he therefore paced a valuation range of nil to $227 million on the Yabulu Refinery as at the valuation date;

(v) the valuation range was calculated by Mr Birkett utilising the same methodology as the Jaski Report for the higher end of the range, but with an updated written down value for the plant and equipment of the Yabulu Refinery of $893.5m (relative to the $782.2m used by Mr Jaski), in light of Mr Birkett's instructions, being a figure derived from the asset register of QNI as at 30 June 2015 (net of the revaluation reserve). Mr Birkett also used the same realisation cost percentages, land values and offsetting rehabilitation liability as used in the Jaski Report;

(vi) Mr Birkett did not reperform the DCF calculations of Mr Jaski with assumptions as at the valuation date of 18 January 2016 (as opposed to the valuation date of 31 August 2017 used by Mr Jaski), which he said could have been completed with more time; and

(vii) Mr Birkett also highlighted that his valuation range could be better informed with the benefit of expert input (consistent with that highlighted by Mr Jaski) as set out in [3.4.3] of his report.

(f) Within section 3.4 of the Birkett Report, Mr Birkett summarised the opinions of Mr Jaski in relation to the market value of the Yabulu Refinery.

(g) Within section 3.5 of the Birkett Report, Mr Birkett summarised the opinions of Mr Jaski as to the auction realisation value of the refinery assets.

1. There were two broad bases on which the defendants objected to the admissibility of the Birkett Report, as set out in their submissions,[38] which I have addressed below. From the Palmer Parties, in support of the admissibility of the Birkett Report, I received written submissions[39] and the affidavit of Ms Robinson sworn 2 May 2025.[40]

1. First, it was submitted by the defendants that the filing of the report was inconsistent with the expert evidence orders made by the Court on 26 September 2024, by which the Court ordered that:[41]

The parties have leave to adduce expert evidence at trial, with each party limited to one expert for each field of expertise.

1. The defendants submitted that, by filing the Birkett Report and the First Conoulty Report, the Palmer Parties were seeking to lead two expert reports in a single field of expertise, namely valuation.
2. The above order is typically made by this Court as part of its standard expert evidence orders for the purposes of trial. The purpose of the order is to avoid a circumstance of overlapping or duplicative expert evidence being adduced by one party. This is the default position.
3. The issue of duplicative expert evidence being called by one party was examined by the Full Federal Court in the context of patent litigation in Novartis AG v Pharmacor Pty Ltd.[42]
4. In Novartis, the respondent had filed its expert evidence in support of the cross-claim, including an affidavit from a neurologist. Subsequently, the applicants filed their expert evidence in response, which included affidavits of four neurologists. Objection was taken by the respondent to this course and orders were sought from the trial judge to limit the number of expert witnesses. The trial judge made orders limiting the expert evidence upon which the applicants could rely at trial.[43]
5. On appeal, Yates and Moshinsky JJ held the evidence sought to be adduced by the applicant was duplicative and refused leave to appeal, noting the decision was consistent with modern case management.[44] Their Honours held:[45]

Insofar as Novartis submits that there are differences in the background and experience of the three experts, this may be accepted, but it does not suggest error by the primary judge. The differences in background and experience of Professors Barnett, Giovannoni and Lublin are not sufficient to justify the calling of multiple expert witnesses of the same discipline in the circumstances of this case. As the primary judge noted, there are invariably differences between experts' backgrounds.

1. Beach J agreed with the result. His Honour explained the default position in the following way:

[25] First, the default position is that a party should not adduce expert evidence from more than one expert in any single discipline, absent telegraphing its intention to do so to the opposite party and the Court at the earliest opportunity.

[26] Now it may be accepted that the concept of a discipline can be broad. Take the field of chemistry. You have well-recognised divisions of physical, inorganic or organic chemistry. And even within those divisions you have sub-divisions such as synthetic, analytical or computational. Take the field of medicine. You can have non-exhaustive possibilities such as the academic, the clinical and the experimental. Clearly, experts in the same general field but falling within separate recognised divisions or sub-divisions in that field should be regarded as experts in separate disciplines to which the default position does not apply. A modicum of common sense informed by the context of the technical matters in issue between the parties needs to be exercised. But if there is a doubt, this should be raised with the other party and the Court at the earliest opportunity.

[27] Second, if the default position is to be departed from, it should be raised with the other party and the Court and justified before the expert evidence is filed and served. Justifications that may be convincing may require establishing, inter-alia, that:

(a) different questions have been posed to different experts, although this will then require an explanation as to why that was necessary;

(b) different experts have substantially different knowledge and experience before the priority date, although this may then entail an inquiry as to why both are necessary, particularly the one with lesser knowledge or experience before the priority date; but it may be that such knowledge and experience does not only divide on a time spectrum, but is more a question of saying that each may be relevantly knowledgeable and experienced as at the priority date but have significantly different knowledge bases and experience as at the priority date which difference then substantially bears upon the opinions expressed; or

(c) one of the experts is giving direct factual evidence perhaps with a modicum of hearsay, and not only as a foundation for an opinion admissible under s 79 of the Evidence Act 1995 (Cth); in other words, the expert is in substance or also a witness of direct fact.

[28] But to establish any such difference may only be a necessary but not sufficient condition for an acceptable justification. One also needs to show that as a result of any such difference the expert evidence is not substantively duplicative, although this may follow in most cases from the difference.

[29] Third and generally, the Intellectual Property Practice Note (IP 1) makes it plain that proper case management requires ensuring the effective use of expert evidence (cls 5.2 and 10.2). Unnecessary and potentially duplicative evidence is to be eschewed (cls 6.1 and 6.2). The Expert Evidence Practice Note (GPN-EXPT) is consistent with these themes (cl 6.1(a)). And the Court has a smorgasbord of powers to achieve these objectives.

[30] Fourth, even if the parties seek to luxuriate in an agreed position of each relying upon multiple over-lapping experts in the same discipline, the docket judge is likely to have little tolerance. Hence the importance of raising the matter with the Court at the earliest opportunity irrespective of the parties' agreed position. Emmett J said in Novartis AG v FH Faulding & Co Ltd [2004] FCAFC 254 at [7] that "an imaginative approach to case management in complex technical cases such as patent cases should be encouraged". I agree, but we are not even close here to considering or imposing innovative solutions. Little imagination needs to be used to appreciate that substantially duplicative expert evidence will not be indulged with insouciance.

1. I respectfully adopt the above observations of Beach J. Those observations have equal application in commercial litigation matters involving valuation exercises of assets and businesses in the construction and resources sectors, where the filing of unnecessary and potentially duplicative expert evidence is similarly to be avoided.[46]
2. The Palmer Parties did not seek directions from the Court before adopting the approach it has followed in this case. The Palmer Parties submit the fields of expertise of Mr Birkett and Ms Conoulty are not the same and so there was compliance with the order made in September 2024. The plaintiffs say leave was thus not required.
3. Faced with the objection pressed by the CITIC Parties, I have ruled that I would have granted leave to the Palmer Parties to rely on the Birkett Report notwithstanding the orders made by the Court on 26 September 2024. This conclusion is, of course, subject to the further rulings made below. I reached that view on the basis that there are differences between the disciplines in respect of which Mr Birkett and Ms Conoulty were asked to express opinions. In particular:

(a) In the Birkett Report, Mr Birkett has opined as to the fair market value of the business on an auction realisation basis. That is, he has expressed an opinion as to the 'scrap basis' based on the real-world position of QNI upon administration.[47]

(b) In the First Conoulty Report, Ms Conoulty has opined as to the fair market value of the business on a discounted cash flow basis, based on the assumption that QNI had received the funds necessary to continue operating the business, which required the construction and application of a model to arrive at the valuation.[48]

1. I accept the force of the plaintiffs' submission that these are discrete questions and tasks calling upon discrete expertise and experience within a broader field of expertise. The evidence is not readily apt to be characterised as duplicative.
2. I also recognise that evidence has been adduced, albeit somewhat vague in its terms, to the effect that Ms Conoulty considered the task undertaken in the Birkett Report beyond her specialised knowledge.[49]
3. In these circumstances, there is a proper explanation for the plaintiffs' reliance on two experts with expertise in the field of valuation such that, even if it be concluded that there was non-compliance with the order of the Court, it would be proper to grant leave to permit reliance on the Birkett Report.
4. Nonetheless, I should observe that the plaintiffs ought to have raised the issue with the Court in a proactive manner, rather than wait for objection to be made by the defendants. In that way, the issue could have been addressed at an anterior point in time, well before the hurly burly of the pre-trial environment, especially with the listing of these back-to-back related trials.

(b) Mr Birkett's opinions are wholly reliant on the Jaski Report

1. Second, it was submitted that the Birkett Report was inadmissible because the opinions expressed therein were wholly reliant on the report prepared by Mr Jaski for use in earlier legal proceedings. If the Jaski Report cannot be tendered pursuant to s 79C(2a), unless Mr Jaski is called to give evidence of course, and is thus inadmissible, then the Birkett Report must fall away as well.
2. Allied to this, the CITIC Parties placed reliance on the principles expressed by the Court of Appeal in Pownall v Conlan Management Pty Ltd.[50]
3. The objections pressed by the CITIC Parties in this regard were well-founded, in my view.
4. In Pownall, a formidable bench of the Court of Appeal addressed competing arguments from the formidable senior counsel who appeared for the parties, as to the admissibility of one particular expert report, concerning the value of mining tenements, which was said to be based substantially on inadmissible hearsay information supplied by persons who did not give evidence.[51]
5. Ipp J, with whom Malcolm CJ agreed, examined the principles relating to the extent to which an expert may rely upon hearsay evidence as a basis for his or her opinions. His Honour contrasted 'non-specific hearsay' with hearsay evidence of particular comparable transactions that are to be used to infer the value of a property which is directly in issue. The former species of hearsay evidence may be used by a valuer to give a general exposition of the subject, to assess market trends, or to determine whether a particular transaction if aberrant or consistent with overall market conditions.[52] The latter species, where it is not otherwise proved by direct evidence, cannot be admitted.
6. Senior counsel for the respondent submitted on appeal that the expert witnesses who had testified for the respondent at trial had, to some extent, relied on hearsay information. It was nonetheless submitted that the information in question was non-specific hearsay evidence and its use was not objectionable.
7. In addressing that submission, Ipp J concluded:[53]

As regards evidence that contains a mixture of objectionable hearsay and legitimate material, obviously there may be instances where the evidence will be trimmed, with the objectionable material being discarded so that the legitimate evidence remains. But there may be cases where the inadmissible and the admissible evidence are so intertwined that they cannot readily be separated. In such event, the entire body of evidence will be rejected. The same result follows where it is not possible to say which of the evidence is admissible and which not, or to what degree the witness had relied on the inadmissible evidence.

In my opinion, expert opinion based entirely on inadmissible evidence is itself inadmissible and there is no discretion to admit it. I form this view as to admit such an opinion would be to admit, indirectly, inadmissible evidence itself. If an opinion, based solely on evidence that the court by law is required to exclude, is itself admitted, the inadmissible evidence would have some influence over the court's decision. Such a result would defeat the purpose of the law that excluded the inadmissible evidence. If the primary facts on which the evidence is based are not admissible, the opinion is valueless and irrelevant and, in my opinion, should be excluded. (original emphasis)

1. His Honour concluded that the report in question had clearly relied on evidence that was hearsay and thus the expert's opinion was also based on hearsay, and should be excluded.[54]
2. Anderson J reached the same conclusion, holding that the expert report should not have been admitted into evidence as it was in vital respects based on unproven assumptions and hearsay.[55] His Honour observed that the opinion of an expert must be his own opinion and not the opinion of others.[56] His Honour regarded the evidence of the expert in question, which relied on the opinions of others, as facing a 'fundamental difficulty'. Anderson J explained the point as follows:[57]

Expert opinion is to be judged like any other evidence. It must be comprehensible and reach conclusions that are rationally based. The process of inference that leads to the conclusions must be stated or revealed in a way that enables the conclusions to be tested and a judgment made about the reliability of them. This requirement is not satisfied by evidence from an expert which says, in effect: "I have examined the costings and estimates made by others and on the strength of my own expertise and experience in the field I believe them to be reasonable."

Such a forensic device overlooks the most important rule that it is for the court to judge the reliability of evidence given in support of the case. If an opinion relies on facts that must be proved or assumptions that must be verified, it is to the court that they must be proved and verified, not to the expert witness.

1. I accept the submission advanced by the CITIC Parties that the report of Mr Birkett, through its heavy reliance on the opinions expressed by Mr Jaski in his report, does not meet the admissibility requirements for such evidence as outlined by Ipp J and Anderson J in Pownall. The Birkett Report is sought to be tendered by the plaintiffs for the Court to thereby place reliance on the valuation opinions expressed therein, which are intertwined, to use the language of Ipp J in Pownall, with the opinions of Mr Jaski.
2. The following points should be made in this regard:

(a) Mr Birkett's opinion is ultimately to the effect that he examined the opinions expressed by Mr Jaski in the Jaski Report and he considered that those opinions were not unreasonable and he did not detect errors.

(b) Mr Birkett did not undertake any independent analysis of his own and he did not trace the source information or data used by Mr Jaski, and he did not reperform the DCF calculations, nor undertaken a detailed review of them.

(c) Mr Birkett noted that his valuation work was 'limited in scope due to the short time frame for production' of the report and his views were broadly based, on the work conducted in the previous expert valuation by Mr Jaski.

1. The characterisation by the defendants' senior counsel of the Birkett Report being 'simply a desktop review' of Mr Jaski's opinions is one that I accept. The report has the hallmarks of a 'compromised opinion' of the type described by Lee J in BrisConnections Finance Pty Ltd v Arup Pty Ltd,[58] although I would not apply that label here in any pejorative manner. His Honour there explained such opinions as being:

... opinions reached as a result of decision to 'adopt' an opinion, which opinion is not the result of an application of the specialised knowledge of a proposed witness, but as a result of a compromise between the proposed witness and another. This is to be contrasted with an opinion which is the result of an application of the specialised knowledge of a proposed witness, but is reached following discussion and debate between the expert and another (even if the tentative or preliminary view of the expert is refined or changed by that discussion and debate, and involves, as a matter of fact, a consensus emerging, by reason of that process, between the initial view of the expert and the view of another). The former is an abdication of the expert's responsibility to form an opinion by reason of the application of the expert's specialised knowledge; the latter is a faithful discharge of the expert's responsibility to test and refine the expert's views and come to a considered opinion based on the expert's specialised knowledge, even though it may involve embracing a final view which may not have been initially evident. Subject to how the opinion is expressed, the latter is admissible while the former is not. (original emphasis)

1. The entirety of the Birkett Report should be excluded for the reasons given above, and noting that I have rejected the tender of the Jaski Report pursuant to s 79C(2a) in any event, in the absence of Mr Jaski being called to give evidence.

1. The defendants filed four expert reports prepared by Mr Meredith, which are detailed at [5] of these reasons. The rulings made in relation to three of the reports are set out in Attachment B to these reasons, noting that the 'Critique of Birkett Report' no longer required rulings to be given.
2. Two of the rulings require explication.

1. First, the plaintiffs objected to portions of the Meredith Accounting Report[59] on the basis that those portions contained summaries of evidence elsewhere expressed in the report. See, for example, [1.4.2], [1.5.2] and [1.6.2] of the report. The plaintiffs submitted that, insofar as the CITIC Parties placed discrete reliance on the opinions expressed in these sections, the evidence did not disclose sufficient reasoning. The plaintiffs placed reliance on the principles expressed in Dasreef in this regard, as to the requirements for experts to disclose reasoning to demonstrate their opinions are based on expertise.
2. I rejected this objection. The view I took was that the aspects of the Meredith Accounting Report which summarised his later evidence were wholly in accord with order 8(n) of the expert evidence orders made on 15 January 2025, and with the terms of PD 4.5.2.1, which are in similar terms.
3. Paragraph 3(l) of PD 4.5.2.1 states:
   1. Every report prepared by an expert witness for use in Court shall clearly state the opinion or opinions of the expert and shall state, specify or provide:

(l) where the report is lengthy or complex, a brief summary of the report at the beginning of the report.

1. The reasoning to support the summaries which have been included by Mr Meredith are provided later within the report, and ought not be assessed in isolation, in my view. The report is to be read as a whole.
2. Further, the material which was challenged by the plaintiffs provides in part a summary of the financial records of the joint venture business and so may be permissibly received into evidence in accordance with the common sense principles expressed by Dixon J (as his Honour then was) in Potts v Miller.[60]
3. In Castel Electronics Pty Ltd v Toshiba Singapore Pte Ltd,[61] the Full Federal Court explained the permissibility of this approach as follows:[62]

The exercise carried out by [the expert] is often carried out by expert forensic accountants who identify the financial documents which are relevant to the inquiry. To the extent necessary, the documents are explained including their contents in order that the Court can understand the company's business. They are often explained to establish some trend in the company's business activities both before and after the cause of action arose. The Court could carry out the inquiry for itself. It could have regard to the underlying source documents and construct for itself the trends upon which reliance is put. However, the practice is to have forensic experts carry out the exercise in advance of the hearing in order to save the Court the time and trouble of the exercise. It is an appropriate way of presenting evidence relating to the financial affairs of a company which claims to have suffered a loss. Their evidence assists a Court in understanding transactions which involve complex accounting treatments. The evidence is a summary of the financial records of the company and admissible: Potts v Miller [1940] HCA 43; (1940) 64 CLR 282 per Dixon J at 302-303. It is not opinion evidence at all. It is a summary of the company's financial records.

1. Mr Meredith has included in his report statements as to the annual financial performance of QNI, and the half yearly financial performance of QNI, over a 6 year period, which he has drawn from the financial records of the business. Mr Meredith has also summarised the cash flows of the business and the expenditures of the business. This type of exercise is commonly carried out by forensic accountants in the course of presenting their opinions. There is nothing objectionable about this course.

1. Second, objection was taken by the Palmer Parties to the CITIC Parties' reliance on the Meredith Conceptual Loss Report. This is the issue I noted at [9] above.
2. This objection was argued at the hearing on 29 May 2025.
3. I received written submissions from the parties ahead of the hearing, on 27 and 28 May 2025, which were filed pursuant to the orders made by the Court on 26 May 2025.[63]
4. I issued a ruling on the issue on 30 May 2025, which is included in Attachment B to these reasons. I upheld the plaintiffs' objection on the basis that the matters which are the subject of the report did not form part of the CITIC Parties' pleaded case in response to the Palmer Parties' claim for loss and damages. My reasons for upholding the objection are set out below.
5. The starting point for the analysis is to observe that the Meredith Conceptual Loss Report advances a methodology of calculating loss by reference to a counterfactual position and with the benefit of hindsight. Within this report, Mr Meredith has, at the level of principle, responded to the approach adopted by Ms Conoulty and Mr Birkett. Mr Meredith has opined that the 'Valuation Difference Method', which was the method described in the question he was asked to address, is not an appropriate approach to assessing the plaintiffs' alleged loss as described at [48] and [49] of the 7ASOC. This is because, in Mr Meredith's experience, a loss quantification:

(a) compares the position the plaintiffs would have been in had the royalty payments been paid on time (which he describes as the Counterfactual Position) with the position the plaintiffs are in because of the breaches of the obligation to pay the royalty amounts alleged in the 7ASOC (being the Actual Position);

(b) uses hindsight, avoiding conjecture where information can be known; and

(c) assesses at a single point in time.

1. Mr Meredith has opined that, in the 'Valuation Difference Method', the valuation undertaken by Ms Conoulty and Mr Birkett do not reflect the Counterfactual Position, that hindsight has not been incorporated where available, and further that the assessment was not performed at a point in time.
2. The expressions of opinion by Mr Meredith in this regard cannot be found within the pleaded case of the CITIC Parties. The pleadings, instead, relevantly reveal only the following matters:

(a) The Palmer Parties plead that their loss case is the diminution in the value of the joint venture business upon the Yabulu Refinery ceasing to operate as a going concern, and the diminution as a result on the value of Mr Palmer's shareholding. The pleading focuses on a point in time, being 18 January 2016.[64] That is the date on which QNI entered voluntary administration.

(b) The CITIC Parties' positively plead that the value of the joint venture business was 'substantially less' than that recorded in the relevant financial reports and when the administrators were appointed. The date of the reports is 30 June 2015 and the date of appointment of the administrators was 18 January 2016.[65]

(c) The CITIC Parties further plead that the diminution in the value of Mr Palmer's shareholding was not consequent on the matters alleged by the Palmer Parties.[66]

1. Within their pleaded defence, the CITIC Parties thus do not plead to the methodology of valuation adopted by the Palmer Parties, nor as to the appropriateness of that methodology. Further, the CITIC Parties' pleading contains no other expression as to any other methodology of calculating the Palmer Parties' loss.
2. The counterfactual position outlined by Mr Meredith in the Meredith Conceptual Loss Report is therefore not pleaded.
3. The question is whether such matters ought to have been pleaded. In my view, the answer is yes. This is because such matters meet the description in O 20 r 9(1)(b) of the Rules of the Supreme Court 1971 (WA) (RSC) of matters 'which, if not specifically pleaded, might take the opposite party by surprise'.
4. In 1110 Hay Pty Ltd as trustee for the Hay Street Trust v Metso Minerals (Australia) Ltd [No 4] [2019] WASC 146,[67] Derrick J addressed the operation of the above rule. His Honour held:[68]

Order 20 r 9(1) does not abrogate or limit O 20 r 8(1), but rather exemplifies its operation in pleadings subsequent to the Statement of Claim. The purpose of the rule is to require any party who has a special ground of defence or who raises an affirmative case to destroy a claim or defence, as the case may be, to plead specifically the matter relied on for this purpose. The rule requires a party to specifically plead as a defence any statutory defence to an action or any other statutory provision which may render the proceedings, or their ultimate objective, non‑maintainable.

1. When questions of loss and damage assessment are concerned, it has been said that it is essential that each party make clear in the pleadings precisely what bases of assessment they seek to advance, and that the expert evidence should be clearly directed to the bases that are going to be put forward.[69] While many of the cases on this issue are directed to deficiencies in the plaintiff's pleading,[70] I accept the pleading requirements apply equally to a defendant's response.
2. In the decision of the English Court of Appeal in Green v Alexander Johnson (a firm),[71] a negligence case concerned with the assessment of the market value of a property, Carnwath LJ observed that:

It is essential in cases of this kind that each party should make clear in the pleadings, or at least before the hearing, precisely what bases of assessment it seeks to advance, and that the expert evidence if any should be clearly directed to the bases that are going to be put forward. If that is not done, there will be a danger of the issues becoming confused at the hearing, and a temptation to pick and choose different strands of valuation material in order to construct a new case, which may have superficial attractions but is not properly supported by coherent evidence.

1. A failure to plead a matter required to be pleaded will prevent a party from advancing a positive argument where that would occasion material prejudice to the other party.[72]
2. In my view, the methodology of calculating loss which is positively asserted in the Meredith Conceptual Loss Report ought to have been pleaded by the CITIC Parties and, not having been so pleaded, the report ought not be admitted. I accept that the fundamental foundation of Mr Meredith's report is to promote an unpleaded methodology, being a methodology he was instructed to opine on as part of his engagement. I also disagree with the defendants' contention that the report was filed in accordance with the expert evidence orders made on 15 January 2025. The defendants' reliance on topic 2(c) is misplaced,[73] given the approach to the construction of those orders I adopted in Palmer v CITIC Ltd [No 15].[74]
3. As to questions of prejudice, I note that the Meredith Conceptual Loss Report was only filed on 18 April 2025. That was around 6 weeks before the scheduled commencement of trial, in circumstances where all parties (and the Court) were listed for an earlier trial of some 5 weeks in length commencing on 28 April 2025.[75] There was thus little notice of the matters contained within the report and certainly much less notice than would have been given had the matter being raised in the CITIC Parties' defence.
4. It is also pertinent to note that the Palmer Parties sought to file responsive material to that report, through the Second McCallum Report and the Second Conoulty Report. I ruled that both reports could not be relied upon by the plaintiffs on the basis they were not in accordance with the expert evidence orders made and the Second Conoulty Report raised matters which fell outside the pleaded case.
5. In these circumstances, there is an evident prejudice to the Palmer Parties in the CITIC Parties now being permitted to rely upon the Meredith Conceptual Loss Report to advance a case in defence of a loss assessment claim which is not pleaded. I would reject the submission to the contrary advanced by the defendants.

1. The specific rulings made by the Court are set out in Attachments A and B to these reasons. I will hear further from the parties on the directions which should be made in light of these rulings and any further applications which the parties wish to make.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

Court's Schedule of Rulings 3 delivered on 29 May 2025**

Court's Schedule of Rulings 4 delivered on 30 May 2025**

Report of Greg Meredith titled 'Accounting Report' dated 14 April 2025

Relevance. The section purports to summarise the expert's opinions expressed in another section of the report, which section speaks for itself (Summary).

In so far as the Defendants place discrete reliance on opinions expressed in this section, the evidence does not disclose sufficient reasoning (see Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 at [42] and [91], on requirement for expert to disclose reasoning to demonstrate opinion based on expertise) (Insufficient Reasoning).

Objection overruled. The aspects of Mr Meredith's report which summarise his later evidence accord with order 8(n) of the expert evidence orders made on 15 January 2025 and with PD 4.5.2.1, para 3(l). The reasoning to support the summary is provided later within the report, and ought not be assessed in isolation.

Further, the evidence provides in part a summary of the financial records of the entity involved and may be permissibly received into evidence in accordance with the principles expressed in Potts v Miller [1940] HCA 43; (1940) 64 CLR 282, 302-303 (Dixon J). See also Castel Electronics Pty Ltd v Toshiba Singapore Pte Ltd [2011] FCAFC 55 [203] (Keane CJ, Lander and Besanko JJ).

This objection must turn on the paragraph's linked sections (2.2, 2.3, 2.4). There are limited objections to paragraphs 2.2 and 2.4, and no objections to paragraph 2.3.

Objection overruled. See above ruling concerning 1.4.2 etc. Adequate reasoning is provided elsewhere within the report.

The reasoning is clearly stated and references paragraph 2.3, which is not objected to.

Objection overruled. See above ruling concerning 1.4.2 etc. Adequate reasoning is provided elsewhere within the report.

The section amounts to an impermissible legal submission or commentary (Submission).

The CITIC Parties propose to not read footnote 99 to resolve this objection.

In the absence of the footnote, the paragraph represents a permissible application of Mr Meredith's expertise and experience.

No ruling required subject to footnote 99 not being read by the CITIC Parties.

This objection must turn on the paragraph's linked sections There is no objection to paragraphs 3.2 and 3.4.

Objection overruled. See above ruling concerning 1.4.2 etc. Adequate reasoning is provided elsewhere within the report.

This is the application of the witnesses' expertise in identifying appropriate sources for financial information within a company and an explanation of his reasoning.

This objection must turn on the paragraph's linked sections (4.2 and 4.3). There are no objection to 4.2.

Objection overruled. See above ruling concerning 1.4.2 etc. Adequate reasoning is provided elsewhere within the report.

This paragraph does not constitute speculation. The basis for Mr Meredith's opinion is cited and this is used to explain how an adjustment has been carried out.

Objection held over until trial. The Court is not presently able to definitively rule that the portion of the report constitutes speculation and there also appears to be a typographical error in the section. Whether this evidence amounts to speculation should be determined when Mr Meredith is called to give evidence.

Report of Greg Meredith titled 'Conceptual Loss Report' dated 18 April 2025

Objection upheld. Matters which are the subject of this report do not form part of the CITIC Parties' pleaded case in response to the Palmer Parties' claim for loss and damage.

The balance of the objections will nonetheless be addressed for the sake of completeness.

The section amounts to an impermissible legal submission or commentary (Submission).

The content is not derived from the witness' specialised knowledge based on training, study or experience: Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 at [42] (Inadmissible Opinion).

This is an application of Mr Meredith's expertise and not a submission.

The opinions expressed are responsive to section 3 of the McCallum Report and the Conoulty Report's use of the Impairment Model.

The report contains the expert's evaluation, with appropriate reasoning, of the opinions expressed by Ms McCallum and Ms Conoulty in a permissible way, despite the use of terms which might ordinarily deployed in a legal sense, such as 'relevance'.

Properly understood, the report conveys that the expert is bringing his expertise and experience to bear to assess the appropriateness or utility of the opinions expressed on the subject matter by others.

The expression of opinion in this way will also facilitate the role of all experts in the action, where they have the same disciplines, by assisting the conferral process between experts and enable the Court to ultimately be assisted to determine the matters in issue which require expert evidence in order to be resolved.

This is an application of Mr Meredith's expertise and not a submission.

Objection overruled. See ruling in relation to 1.5.2 above.

The CITIC Parties propose to not read paragraph 2.2.1(a) from "For example", including 2.2.1(a)(i) and (ii).

In relation to 2.2.1 (b), this is an application of Mr Meredith's expertise and not a submission (and is linked with the reasoning in 2.2.2, to which no objection is taken).

Objection overruled. See ruling in relation to 1.5.2 above. The court notes that portions of the report will not be read by the CITIC Parties.

The CITIC Parties concede the objection and will not read 2.3.1(b).

No ruling required as the CITIC Parties will not read this paragraph.

No ruling required as the CITIC Parties will not read this paragraph.

This is an application of Mr Meredith's expertise and not a submission.

No ruling required given position adopted by the Court in relation to the Birkett Report.

The CITIC Parties propose to limit this paragraph by not reading the following parts of 3.4.1(c):

• (c) chapeau: all
• (c)(i): all
• (c)(ii): all
• (c)(iii): the words: "I am not aware of any matters in which the Court has accepted" and "In my view, such a difference".

such that what is read is: "the use of different discount rates between the counterfactual and actual positions ... would be logically inconsistent because:" [and subparagraphs (A) and (B) that follow];

Without conceding that the parts not read are necessarily a submission, the proposed limited reading isolates those matters in the paragraph that are a clear application of Mr Meredith's expertise and experience.

Objection overruled. See ruling in relation to 1.5.2 above. The court notes that portions of the report will not be read by the CITIC Parties.

The CITIC Parties maintain subparagraph (a), which is an application of Mr Meredith's expertise and not a submission

Objection overruled. See ruling in relation to 1.5.2 above. The court notes that portions of the report will not be read by the CITIC Parties.

Relevance. No longer relevant to any issue in the proceeding.

The CITIC Parties will not read section 4.

No ruling required as the CITIC Parties will not read this paragraph.

This is an application of Mr Meredith's expertise and not a submission.

The opinions expressed are responsive to section 3 of the McCallum Report and the Conoulty Report's use of the Impairment Model.

Objection overruled. See ruling in relation to 1.5.2 above.

This is an application of Mr Meredith's expertise and not a submission.

Objection overruled. See ruling in relation to 1.5.2 above.

Report of Greg Meredith titled 'Critique of Conoulty Report' dated 23 April 2025

Relevance. The section purports to summarise the expert's opinions expressed in another section of the report, which section speaks for itself (Summary).

In so far as the Defendants place discrete reliance on opinions expressed in this section, the evidence does not disclose sufficient reasoning (see Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 at [42] and [91], on requirement for expert to disclose reasoning to demonstrate opinion based on expertise) (Insufficient Reasoning).

The section amounts to an impermissible legal submission or commentary (Submission).

This objection must turn on the paragraph's linked sections (sections 2, 3, 4 and 5).

The report contains the expert's evaluation, with appropriate reasoning, of the opinions expressed by Ms Conoulty in a permissible way, despite the use of terms which might ordinarily be deployed in a legal sense, such as 'inherently unreliable'.

Properly understood, the report conveys that the expert is bringing his expertise and experience to bear to assess the appropriateness or utility of the opinions expressed on the subject matter by others.

The expression of opinion in this way will also facilitate the role of all experts in the action, where they have the same disciplines, by assisting the conferral process between experts and enable the Court to ultimately be assisted to determine the matters in issue which require expert evidence in order to be resolved.

This objection must turn on the paragraph's linked sections (section 2.3, 2.4, 2.5, 2.6)

Objection upheld as to 2.1.1(b)(i) which comments on the instructions given to Ms Conoulty.

Otherwise, objections are overruled. See ruling in relation to 1.4.1 above.

Mr Meredith's reasoning is sufficiently explained and is adequate to allow for it to be tested on cross examination.

No ruling required as the objection is not pressed by the Palmer Parties.

The CITIC Parties will not read 2.3.1(c). What remains of paragraph 2.3.1 is an application of Mr Meredith's expertise and not a submission.

Objection to portion which is read is overruled as the reasoning is sufficiently addressed. Court notes that a portion of the report is not to be read by the CITIC Parties.

Submission; Argumentative; Inadmissible Opinion; Summary.

This is an application of Mr Meredith's expertise and not a submission.

Objection overruled. Expert makes reference to legal texts and authority as part of expression of how valuers 'commonly refer' to such matters, which is an expression of his opinion.

This objection must turn on the paragraph's linked sections (2.5.2, 2.5.4, 2.5.5). Note that there is no objection to 2.5.2 or 2.5.5.

Objection overruled. Reasoning sufficiently explained and report must be read as a whole.

Insufficient Reasoning; Speculative. The words "for example" do not disclose the complete basis of the opinion and make it speculative.

The paragraph is not speculative nor is it insufficiently reasoned.

The objection is not pressed by the Palmer Parties other than as to the summary objection, which is overruled. Use of summary is permissible where detail is elsewhere contained in the report, consistent with orders of the Court and PD 4.5.2.1, para 3(l).

This objection must turn on the paragraph's linked sections (section 3.4 and 5.2)

This is an application of Mr Meredith's expertise and not a submission.

Objection overruled. Report contains permissible expression of opinion in response to Mc Conoulty's expressions of opinion. See ruling in relation to 1.4.1 above.

This objection must turn on the paragraph's linked sections (3.2, 3.3, 3.4). Note that there is no objection to 3.2.

Objection overruled. Report contains permissible expression of opinion in response to Mc Conoulty's expressions of opinion. See ruling in relation to 1.4.1 above.

This is an application of Mr Meredith's expertise and not a submission.

Objection overruled. Report contains permissible expression of opinion in response to Mc Conoulty's expressions of opinion. See ruling in relation to 1.4.1 above.

This is an application of Mr Meredith's expertise and not a submission.

Objection overruled. Report contains permissible expression of opinion in response to Mc Conoulty's expressions of opinion. See ruling in relation to 1.4.1 above.

This objection must turn on the paragraph's linked sections (4.2, 4.3, 4.4). No objection is raised to section 4.4.

Objection overruled. Report contains permissible expression of opinion in response to Mc Conoulty's expressions of opinion. See ruling in relation to 1.4.1 above.

This is an application of Mr Meredith's expertise (including by assessing compliance with APES 215 which Ms Conoulty purports to do) and not a submission.

Objection overruled. Report contains permissible expression of opinion in response to Mc Conoulty's expressions of opinion. See ruling in relation to 1.4.1 above.

Submission; Inadmissible Opinion; Insufficient Reasoning; Speculative. The words "inter alia" do not disclose the complete basis of the opinion and make it speculative.

The paragraph is not speculative nor is it insufficiently reasoned.

Objection overruled. Report contains permissible expression of opinion in response to Mc Conoulty's expressions of opinion. See ruling in relation to 1.4.1 above.

Objection overruled. Report contains permissible expression of opinion in response to Mc Conoulty's expressions of opinion. See ruling in relation to 1.4.1 above.

Objection overruled. Report contains permissible expression of opinion in response to Mc Conoulty's expressions of opinion. See ruling in relation to 1.4.1 above.

This objection must turn on the paragraph's linked sections (5.2 and 5.3)

Objection overruled. Report contains permissible expression of opinion in response to Mc Conoulty's expressions of opinion. See ruling in relation to 1.4.1 above.

Objection overruled. Report contains permissible expression of opinion in response to Mc Conoulty's expressions of opinion. See ruling in relation to 1.4.1 above.

Relevance. The relevance of the '2009 Refinery Transaction' is not sufficiently connected to the pleaded issues.

Mr Meredith makes clear in the report the connection to the asserted value in 2016. Mr Birkett appears to consider the transaction sufficiently connected to the pleaded issues to refer to and consider the transaction as "evidence of the value of the Refinery": Birkett Report, [2.6.10].

The reference by the expert to his expression of opinion, in response to Ms Conoulty's report, as to the 2009 Refinery Transaction is permissible. Indeed, references to prior transactions involving the same asset are a not uncommon approach adopted by experts in assessing market valuation.

As to the relevance of the transaction, it is identified in Ms Conoulty's report (at [75(b)] and, less significantly, was also the subject of Mr Birkett's report which has now been excluded. It is therefore appropriate for the expert to offer an opinion on Ms Conoulty's approach to the transaction and to express an opinion as to the utility of that transaction to the market value of the refinery.

Submission; Argumentative; Inadmissible Opinion; Summary.

This objection must turn on the paragraph's linked sections (5.3.2, 5.3.3, 5.3.4, 5.3.5)

Objection overruled. See ruling in relation to 5.3 above.

Submission; Argumentative; Inadmissible Opinion; Speculative.

Objection overruled. See ruling in relation to 5.3 above.

Hearsay. Evidence dependent upon truth of contents of media article, not otherwise established.

The paragraph itself is admissible on the basis that the CITIC Parties will otherwise seek to establish the fact relied upon through admissible documentary evidence: Dasreef, [68].

The objection is held over until trial on the basis that footnote 69 will not be read by the CITIC Parties. The basis of the expression of opinion will require a further assessment of the admissible evidence tendered in support.

Inadmissible Opinion; Hearsay. Evidence dependent upon truth of contents of third party materials, not otherwise established.

The records are not relied upon for the truth of the matters therein but rather as evidence of market sentiment at the time (i.e. the fact that the content was communicated). The records are admissible, as is the opinion based on their content.

Objection overruled having regard to limitations on tender proposed by the CITIC Parties.

The Court notes that Document at FN 72 (being CPM.676.089.0626, ANK0011) is a Category B document.

This objection must turn on the paragraph's linked sections (5.3.3).

Objection overruled. See ruling in relation to 5.3.3 above.

Objection overruled. See ruling in relation to 5.3.3 above.

Objections to documents referred to in expert reports

The CITIC Parties seek to tender the document subject to a hearsay limitation to the following effect:

"The document is admitted into evidence to prove that there was a communication of its contents on the date that it bears, but not for the truth of its contents or any other purpose." (Hearsay Limitation)

With the removal of footnote 69 from the Critique of Conoulty Report (see above), this document is now a "Category B" document meaning there is no present need to resolve the objection.

The Court notes the objections have been resolved on the basis of the limitation set out by the CITIC Parties, with the removal of footnote 69 as noted above.

The CITIC Parties seek to tender the document subject to the Hearsay Limitation.

The CITIC Parties seek to tender the document subject to the Hearsay Limitation.

The CITIC Parties seek to tender the document subject to the Hearsay Limitation.

The CITIC Parties will nonetheless tender the document as a business record of BHP. The statement which the CITIC Parties may seek to have admitted is on page 34 of the report and reads:

"Since the announcement to indefinitely suspend the Ravensthorpe operation in January 2009, Yabulu has reverted to processing ore only. In July 2009, we announced the sale of the Yabulu nickel refinery, which was completed on 31 July 2009."

We note that with the removal of footnote 28 from the Conceptual Loss Report, this document is now a "Category B" document, meaning there is no present need to resolve the objection.

The Court notes this is a Category B document and so does not presently require resolution.

See the objection to 5.3.3 of the Meredith Critique of Conoulty Report as a cross-reference.

[1] The Jaski Report was produced to the Court as part of the affidavit of Ms Tracey Robinson sworn 14 May 2025 (Folio 475). The report is an exhibit to Attachment TLR-01, which is the affidavit of Mr Jaski sworn on 8 September 2017. In that affidavit, Mr Jaski exhibits his valuation report for the Yabulu Refinery as Exhibit CTJ-01. The Jaski Report, including its appendices, is 153 pages in length.

[4] Given the Court's ruling in relation to the Birkett Report, it has been unnecessary to rule on the fourth report prepared by Mr Meredith, titled 'Critique of Birkett Report' dated 18 April 2025 (Folio 441).

[10] Palmer v CITIC Ltd [No 15] [2025] WASC 202 (Lundberg J).

[11] Plaintiffs' opening trial submissions dated 4 May 2025 [122]; 7ASOC [48] and [49].

[13] The references to statutory provisions in these reasons are to the Evidence Act 1906 (WA), unless otherwise stated.

[18] Defendants' supplementary submissions dated 2 May 2025 (Folio 458); and Defendants' submissions on Jaski Report dated 21 May 2025 (Folio 484).

[19] Plaintiffs' supplementary submissions on objections dated 30 April 2025 (Folio 455); and Plaintiffs' outline of submission dated 14 May 2025 (Folio 476).

[20] The plaintiffs did not rely on s 79C(1).

[21] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 23] [2023] WASC 380 (Smith J) (Wright Prospecting).

[22] Evidence Act 1906 (WA), s 79B.

[23] Evidence Act 1906 (WA), s 79B.

[24] Energy Resources Ltd v Cactus Wellhead Australia Pty Ltd [2023] WASC 475 (Howard J).

[25] Energy Resources Ltd v Cactus Wellhead Australia Pty Ltd [29] and [32].

[26] Rhodes v De Castro [No 2] [2023] WASC 93 [22] (Solomon J).

[27] Plaintiffs' outline of submissions dated 14 May 2025 [7] - [11].

[28] See the sixth affidavit of Mr Parbery sworn 2 May 2019 (First Parbery Affidavit), filed in the Supreme Court of Queensland, which is Attachment TLR-2 to the affidavit of Ms Robinson sworn 14 May 2025. The Estimated Outcome Report is an exhibit to the First Parbery Affidavit.

[29] The Second Parbery Affidavit is Attachment TLR-3 to the affidavit of Ms Robinson sworn 14 May 2025.

[30] Plaintiffs' outline of submissions dated 14 May 2025 [9].

[31] Wright Prospecting [38] - [41].

[32] Wright Prospecting [16], citing in particular McKay v Commissioner of Main Roads [2010] WASC 153 [37] - [39] (Beech J) and Agricultural Land Management Ltd v Jackson [2013] WASC 464 [15] (Edelman J).

[33] Agricultural Land Management Ltd v Jackson [17].

[34] Defendants' submissions dated 21 May 2025 [5].

[35] Indeed, the second limb of the definition of 'qualified person' has direct application to Mr Jaski's circumstances.

[36] Coal Hub Pty Ltd v NSL Consolidated Ltd [No 2] [2016] WASC 257 (Beech J, as his Honour then was).

[37] Birkett Report [1.3.4] and [2.3.1].

[38] Defendants' objections to the expert report of Scott Birkett dated 23 April 2025 (Folio 444); Defendant's schedule of objections dated 24 April 2025 (Folio 447); Defendants' submission on report of Mr Scott Birkett dated 30 April 2025 (Folio 454).

[39] Plaintiff's supplementary submissions on objections to Birkett Report dated 2 May 2025 (Folio 459).

[41] Orders made on 26 September 2024 [16] (Folio 366).

[42] Novartis AG v Pharmacor Pty Ltd [2022] FCAFC 58; (2022) 290 FCR 345 (Novartis).

[43] Novartis [3] - [4] (Yates and Moshinsky JJ).

[44] Novartis [15] and [20] (Yates and Moshinsky JJ).

[45] Novartis [15] (Yates and Moshinsky JJ).

[46] The broader application of this default position beyond patent litigation can be seen in cases such as Davis v Comensoli [2024] VSC 668 [32] - [33] (Keogh J).

[47] Birkett Report [2.6.3]; Plaintiffs' supplementary submissions dated 2 May 2025 [2].

[48] First Conoulty Report [25] - [26]; Plaintiffs' supplementary submissions dated 2 May 2025 [2].

[49] Affidavit of Ms Robinson sworn 2 May 2025 [7] - [9] (Folio 460).

[50] Pownall v Conlan Management Pty Ltd [1995] WASC 117; (1995) 12 WAR 370 (Pownall). Those principles are endorsed in Automasters Australia Pty Ltd v Bruness Pty Ltd [2004] WASCA 229 [28] ‑ [29] (Steytler J, with Murray & Wheeler JJ agreeing) and Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 [90] (Heydon J), among other authorities. I refer to, without repeating, the principles I summarised in Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 13] [2025] WASC 168 [48] - [51] (Lundberg J).

[58] BrisConnections Finance Pty Ltd v Arup Pty Ltd [2017] FCA 1268; (2017) 252 FCR 450 [48] (Lee J).

[60] Potts v Miller [1940] HCA 43; (1940) 64 CLR 282, 302-303 (Dixon J).

[61] Castel Electronics Pty Ltd v Toshiba Singapore Pte Ltd [2011] FCAFC 55 (Keane CJ, Lander and Besanko JJ) (Castel).

[62] Castel [203] (Keane CJ, Lander and Besanko JJ).

[63] Plaintiff's outline of submissions dated 27 May 2025 (Folio 490); Defendants' outline of reply submissions dated 28 May 2025 (Folio 495).

[67] 1110 Hay Pty Ltd as trustee for the Hay Street Trust v Metso Minerals (Australia) Ltd [No 4] [2019] WASC 146 (1110 Hay Pty Ltd) (Derrick J).

[68] 1110 Hay Pty Ltd [18] (Derrick J).

[69] J Edelman (ed), McGregor on Damages (22nd Edition, 2024, Thomson Reuters) [52-027] - [52-029].

[70] Such as Hookey v Manthey [2020] QSC 125; (2020) 4 QR 371 [119]-[123] (Ryan J) and Graham & Linda Huddy Nominees Pty Ltd v Byrne [2016] QSC 221 [50]-[51] (Jackson J).

[71] Green v Alexander Johnson (a firm) [2005] EWCA Civ 775; [2005] All ER (D) 325 [21] (Carnwath LJ, Neuberger LJ agreeing).

[72] 1110 Hay Pty Ltd [28] (Derrick J).

[74] Palmer v CITIC Ltd [No 15] [87] - [95].

[75] Being CIV 2336 of 2023, the 2023 MCP Proceeding.