Palmer, in the matter of Queensland Nickel Pty Ltd (In Liq) v Parbery, in his capacity as Liquidator of Queensland Nickel Pty Ltd

1. Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), r 1.32 and r 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders are made and published from Chambers.
2. Each applicant pay the costs of the respondents to each applicant's application, of and incidental to the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

GREENWOOD J: 1 On 29 August 2016, the Court delivered judgment in Palmer, in the matter of Queensland Nickel Pty Ltd (In Liq) v Parbery, in his capacity as Liquidator of Queensland Nickel Pty Ltd (In Liq) [2016] FCA 1048. 2 On that day, the Court made the following orders: 1. That part of the applications made by Mr Clive Frederick Palmer, Mr Ian Maurice Ferguson and Mr Daren Wolfe to set aside the examination summons issued separately to each of them returnable at 9.30am on Tuesday, 30 August 2016, is dismissed. 2. That part of the applications made by Clive Frederick Palmer, Mr Ian Maurice Ferguson and Mr Daren Wolfe concerning the production of documents is stood over to be brought on, on two days' notice. 3. Costs are reserved. 3 The judgment published on 29 August 2016 was concerned with an application made by each of Mr Ian Ferguson, Mr Daren Wolfe and Mr Clive Palmer in which each applicant sought an order setting aside a summons for his examination issued by Registrar Belcher on 2 August 2016. Each summons was returnable at 9.30am on Tuesday, 30 August 2016. The applications were dismissed on 31 August 2016 except for orders providing the parties with an opportunity to file and serve submissions as to the question of the costs of each application, among other things. 4 Submissions as to the costs of each application were exchanged between the parties. However, not all of the submissions were filed with the Court. On 28 March 2018, the solicitors for the "Special Purpose Liquidators" filed their submissions in support of costs. These submissions had previously been provided to the Court but had not been filed. Thus, it was not clear whether the Special Purpose Liquidators were continuing to press a claim for costs. It is now necessary to determine the question of costs in relation to each of the applications. 5 Each application had been brought on three different grounds. 6 First, each applicant contended that that part of the summons which required each addressee to produce documents in his possession, custody or control as detailed in Sch 1 to the summons was an abuse of process or oppressive having regard to the scope of the categories of documents described in Sch 1. 7 Second, each applicant contended that an examination summons had been previously issued on the application of the "General Purpose Liquidators" and thus a further summons issued on the application of the Special Purpose Liquidators overlapped with each earlier summons with the result that compliance with both was said to be oppressive. 8 Third, each applicant contended that the power conferred upon the Federal Court of Australia by s 596A and s 596B of the Corporations Act 2001 (Cth) (the "Act") did not engage a conferral of the exercise of the judicial power of the Commonwealth nor a power incidental to federal judicial power and thus the power was not validly conferred on a Chapter III Court under the Constitution. 9 As to the first issue, at the hearing of each application, the lawyers for the Special Purpose Liquidators indicated that they had been in negotiations with the lawyers for Mr Ferguson and Mr Wolfe, and with Mr Palmer directly, and agreement had been reached to extend the time for compliance to a mutually satisfactory date. The parties to each application agreed that this aspect of the application ought to be stood over and was thus not argued. As to Mr Palmer, the date for compliance had been extended to 13 September 2016. Negotiations were then underway with the lawyers for Mr Ferguson and Mr Wolfe for an extended date for compliance by them. 10 The two issues that remained to be addressed at the hearing of each application were Mr Palmer's contention that the requirement to appear, answer the summons and be examined was oppressive, and the contention by all of the applicants that the conferral of the power on the Federal Court of Australia by s 596A and s 596B of the Corporations Act 2001 (Cth) (the "Act") to make an order for the issue of each summons was not a valid law of the Commonwealth because the provisions do not engage a conferral of the judicial power of the Commonwealth. The respondents to each application were Mr Parbery, Mr Ayres and Mr Owen in their capacity as the Special Purpose Liquidators of Queensland Nickel Pty Ltd (In Liq). These reasons are to be read with the reasons for judgment published on 29 August 2016. However, for present purposes, it is convenient to simply reflect some of the background information drawn from the judgment published on 29 August 2016, as follows: 14. From about 2009, Queensland Nickel Pty Ltd ("QNI") (now in liquidation) was the manager of a joint venture. The joint venture partners were Queensland Nickel Resources Pty Ltd ("Resources") and Queensland Nickel Metals Pty Ltd ("Metals"). The joint venture operated the Yabulu Refinery near Townsville. The refinery produced nickel and cobalt products by refining nickel ore and other nickel products. 15. On 18 January 2016, Mr John Park, Ms Kellie-Anne Trenfield, Mr Stefan Dopking and Mr Quentin Olde were appointed administrators of QNI pursuant to s 436A of the Act. 16. On 22 April 2016, the second meeting of creditors of QNI was held in Townsville. At that meeting, the creditors of QNI resolved to wind up QNI. The administrators were appointed as the liquidators of QNI. Thus, Mr Park, Ms Trenfield, Mr Dopking and Mr Olde became the liquidators of QNI, otherwise known as the General Purpose Liquidators. 17. The resolution of the creditors at the meeting on 22 April 2016 gave effect to the choice before the creditors at the meeting under s 439C(c) "that the company be wound up". The resolution of the creditors under s 439C(c) to wind up QNI engaged s 446A(1)(a) of the Act with the result that QNI was and is taken to have passed, at the date of the winding up resolution, a special resolution under s 491 of the Act, that QNI be wound up voluntarily and to have done so without a declaration of solvency having been made and lodged under s 494 of the Act. 18. Other background matters may be mentioned briefly. Metals is a 20% shareholder in QNI. Resources is an 80% shareholder in QNI. Mr Palmer was a Director of QNI and Metals and Resources at various dates between 31 July 2009 and February 2015. Mr Ferguson was a Director of QNI at various dated between 30 January 2013 to 23 July 2015 and a Director of Metals and Resources between 30 January 2013 and 24 December 2014. Mr Wolfe was the Company Secretary of QNI, Metals and Resources from 12 February 2010 to 4 January 2013. Mr Wolfe was an employee of QNI for approximately 26 years and was the Chief Financial Officer of QNI, Metals and Resources (among other entities related to those entities) from March 2013 to March 2016. 19. Section 472(1) of the Act provides that on an order being made for the winding up of a company, the Court may appoint an official liquidator to be liquidator of the company. In this case, the liquidators were appointed by resolution of the creditors at a meeting convened by the then administrators. Section 473(8) of the Act provides that if more than one liquidator is appointed by the Court, the Court must declare whether anything that is required or authorised by this Act to be done by the liquidator, is to be done by all or any one or more of the persons appointed. Section 511 of the Act provides that the liquidator or any contributory or creditor may apply to the Court to determine any question arising in the winding up of a company; or to exercise all or any of the powers that the Court might exercise if the company were being wound up by the Court. Section 511(2) provides that if satisfied that the determination of the question arising under s 511(1)(a) or the exercise of the power arising under s 511(1)(b) will be "just and beneficial", the Court may accede wholly or partially to any such application on such terms and conditions as it thinks fit or may make such other order on the application as it thinks just. 20. On 18 May 2016, the Commonwealth of Australia and the Commissioner of Taxation for the Commonwealth together with Mr Stephen Parbery, Mr Marcus Ayres and Mr Michael Owen applied before the Federal Court of Australia for an order pursuant to ss 472(1) and 511 of the Act that Mr Parbery, Mr Ayres and Mr Owen be appointed Special Purpose Liquidators of QNI for particular purposes. On 18 May 2016, Dowsett J made orders appointing the Special Purposes Liquidators for the limited purposes set out at para 4 of the orders made that day. Accordingly, Mr Parbery, Mr Ayres and Mr Owen are Court appointed liquidators of QNI pursuant to the provisions of the Act. There can be no doubt that the provisions of the Act enable multiple liquidators to be appointed. The power to do so is not confined to an appointment of multiple liquidators to a Court ordered winding up. A company in voluntary liquidation with liquidators appointed remains susceptible to an appointment of further or additional liquidators by the Court having regard to the relevant circumstances. Some of the circumstances in which the power to appoint multiple liquidators (now generally described as Special Purpose Liquidators) are illustrated in Onefone Australia Pty Ltd v One.Tel Ltd (in liq) [2003] NSWSC 1228 (2003); 48 ACSR 562 per Windeyer J; Re Obie Pty Ltd (No. 2) (1984) 2 Qd R 155, per Thomas J. 21. The Commonwealth of Australia and the Commissioner of Taxation for the Commonwealth applied to the Court for the appointment of further liquidators on the footing that each applicant was and is a creditor of QNI. 11 It should also be noted that Mr Ferguson and Mr Wolfe also sought an order setting aside a decision of Registrar Belcher of 15 August 2016 for substituted service of each summons. However, that part of the application was not pressed by them. Mr Palmer also challenged an order of Registrar Belcher for substituted service. However, the material demonstrated that Mr Palmer had, in fact, received the summons and, as mentioned earlier, negotiations had been conducted with a view to determining an extended date for compliance with aspects of the summons. 12 Having regard to the negotiations between Mr Palmer, Mr Ferguson and Mr Wolfe in relation to the production of documents, that issue raised by each summons was adjourned to be brought on, on two days' notice. Those matters were never brought on for further hearing. 13 The Special Purpose Liquidators make these submissions on the question of costs. 14 They say that the constitutional issue occupied approximately three quarters of the time consumed in the hearing of each application and they note that in the principal judgment, an observation was made to the effect that the constitutional question was the "principal issue in question in these applications": principal judgment at [31]. They note that they were entirely successful on both issues determined by the principal judgment. That is, they resisted successfully Mr Palmer's contention that the requirement to appear was oppressive and an abuse, and they resisted successfully the notion that the provisions of the Act were unconstitutional. They note that in the principal judgment, observations were made that the oppression issue was found to be "without any basis" and the constitutional issue was found to be unarguable: principal judgment at [30] as to the first issue and at [60] as to the second issue. 15 They say that in the exercise of a broad discretion conferred by s 43(1) and (2) of the Federal Court of Australia Act 1976 (Cth) (the "Federal Court Act"), they, as the successful party in the disposition of each application, are entitled to an order in their favour, for reasons of fairness and policy: Bucknell v Robins [2004] QCA 474 at [17] per Philippides J (as her Honour then was) (with whom McMurdo P and Williams JA agreed) with reference to the observations of McHugh J in Oshlack v Richmond River Council (1998) 193 CLR 72. The Special Purpose Liquidators resist the proposition that the Court, in the exercise of the discretion, ought to order that each party bear their own costs. They say that they ought to have the costs of and incidental to each application. They note that that part of each application directed to an order to set aside each examination summons was dismissed. 16 Apart from these submissions, the Special Purpose Liquidators say that they ought to have their costs on an indemnity basis. They also say that it is appropriate to award indemnity costs when "an action has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success". They also say that "[i]n such cases the action must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law". For both of those quoted propositions, they rely upon passages taken from Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397, Woodward J at 401. They also say that a factor to be taken into account in the exercise of the discretion as to whether indemnity costs ought to be awarded is the notion that the unsuccessful party has made allegations that "ought never to have been made": Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 232-234, Sheppard J. They also say that the applicants maintained the applications in "disregard of the clear legal position" and thus an order for indemnity costs ought to be made: Todrell Pty Ltd v Finch (No 2) [2008] 2 Qd R 95 at [4]. Finally, they observe that in the primary judgment at [60], the Court made this observation: … the power conferred by ss 596A and 596B in the context of Div 1 has long been regarded as peculiarly appropriate for judicial performance such that it has occupied and acknowledged place in the structure of our judicial system for a long time. I can find no error in the reasoning of the Court of Appeal and, plainly enough, three Justices of the High Court were satisfied that there was no error in the principles identified which condition the outcome in these applications. 17 The reference to the decision of the Court of Appeal is a reference to a decision of the Court of Appeal of Western Australia in Saraceni v Jones [2012] WASCA 59; 287 ALR 551; (2012) 42 WAR 518 ("Saraceni") in which propositions about the constitutionality of ss 596A and 596B of the Act were also raised. Mr Ferrett, counsel for Mr Ferguson and Mr Wolfe, conceded that in order to make good his challenge to the provisions he would need to distinguish the present proceedings from the ambit of the ratio in Saraceni. He sought to distinguish the present proceedings on the footing that the decision in Saraceni had no application to the determination of the character of the power conferred by ss 596A and 596B in the circumstances of a voluntary liquidation. He was unable to do so. 18 The applicants sought leave to appeal from the primary decision and leave was refused. 19 Proceedings were then commenced by Mr Palmer and Mr Ferguson against the Special Purpose Liquidators by writ of summons invoking the original jurisdiction of the High Court. In those proceedings, the plaintiffs sought to demonstrate that the provisions were unconstitutional in purporting to confer an exercise of judicial power on the Federal Court of Australia or on any court exercising invested federal jurisdiction. A question was reserved, under s 18 of the Judiciary Act 1903 (Cth), for the consideration of the Full Court in these terms: Is s 596A of the Corporations Act 2001 (Cth) invalid as contrary to Chapter III of the Constitution in that it confers non-judicial power on federal courts and on courts exercising federal jurisdiction? 20 At the conclusion of the hearing of argument before the Full Court on that question, the Court answered the question in the negative and pronounced that reasons would be later published. Those reasons are to be found in Palmer v Ayres [2017] HCA 5; 91 ALJR 325. Kiefel, Keane, Nettle and Gordon JJ answered the question in the negative with joint reasons. Gageler J answered the question in the negative with separate reasons. In the course of seeking to demonstrate, in exposed reasons, the constitutional validity of the conferral of the power by s 596A of the Act, their Honours analysed a range of propositions which engaged reference to approximately 100 authorities. It is not necessary in these reasons to identify the essential elements of the reasoning. It is enough to say this. At [36], the plurality said this: The s 596A power is not incompatible with, and does not fall outside, the exercise of the judicial power of the Commonwealth. The court, in exercising the s 596A power, is not involved in a fact-gathering exercise or an investigative function divorced from a controversy. The making of a summons order is a procedure designed to lead to a controversy regarding potential rights and liabilities in possible future litigation. It is a procedure directed at the future exercise of judicial power, in aid of anticipated adversarial proceedings, analogous to other pre-trial procedures. 21 The plurality also noted at [37] that "it is relevant to observe that the s 596A power is not in any sense a new power". That observation seemed to represent a point of departure for Gageler J because notwithstanding the historical observations concerning the exercise of such power, the constitutional arrangements from 1901 and legislation enacted in accordance with those arrangements are, as a matter of construction, the true source of the power and necessarily an analysis of the content of the power. At [98], Gageler J said this: Moreover, as Martin CJ explained in Saraceni v Jones, the court making an order under s 596A has an important role in supervising under ss 596F and 597 the conduct of the examination it has ordered, being a role which coincides closely with what Barwick CJ described in Rees v Kratzmann (1965) 114 CLR 63 at 66 as "the traditional judicial function of ensuring that the examination is not made an instrument of oppression, in justice, or of needless injury to the individual". 22 Gageler J then said at [99] that: "[c]onstrued and confined in that way, the duty s 596A imposes on a court to order an examination does not take the court beyond the role of supervising and administration". 23 The observations of the High Court were not made in the context of any appellate determination arising out of the present proceedings. As mentioned earlier, the High Court proceedings were fresh proceedings in the original jurisdiction of that court. 24 Nevertheless, the analysis of the legal merits of the proposition remains relevant to the present question. Ultimately, the arguments of the plaintiffs in the High Court proceedings were shown unanimously to be unsustainable. In the present proceedings in the principal judgment, the Court determined that the arguments of the three applicants on these issues were unsound as a matter of law. In the principal proceedings, the Court addressed the arguments in some detail so as to deal with the questions fully but also to deal with the contended point of differentiation between the present proceedings and the position adopted by the Western Australian Court of Appeal in Saraceni. 25 In the principal proceeding, the Court determined that the contentions of the applicants on the constitutionality of the provisions were unarguable. There is no doubt that the contentions were unsound and the applicants were unable to make them good. They could not do so in the High Court either. However, on the question of the exercise of the discretion as to whether costs ought to be awarded on an indemnity basis, I am not satisfied that the interests of justice are served by making an order for indemnity costs on the footing that the applicants ought never to have come to the Court and raised the question. Although the applicants were wrong as a matter of law, the development of the law, especially in the context of constitutional questions, is aided by parties who bring litigation to properly and genuinely test the limits of orthodoxy without being heretical or engaging in true heterodoxy. 26 Accordingly, the respondents to each application ought to have their costs against each applicant of and incidental to each application on the usual basis. 27 Mr Ferrett has put on submissions on behalf of Mr Ferguson. He says that in considering the question of costs, it should be kept in mind that the applicant is an individual and resides in Townsville; the respondent elected to extend the date for production of any documents until 13 September 2016; the applicant's application was "made necessary" primarily because of the "unreasonably short timeframe" he was given to respond to the summons; and, the respondent has given no explanation as to why it was necessary to proceed "so rapidly" against the applicant. Mr Ferrett says that for all of these reasons, each party ought to bear its own costs of the application or, in the alternative, the costs should be reserved pending resolution of any disclosure of documents. 28 I am not persuaded that any of these considerations suggest that an order for costs ought not to be made against Mr Ferguson. The principal matter dominating each application was the debate about the constitutionality of the provisions. As to the extension of the date for production of documents, an agreement was reached about that. The proceedings would have occurred in any event because the simple fact is that each applicant was challenging the validity of the provisions under which the summons was issued. As to the question of each application being made in an "unreasonably short timeframe", the Special Purpose Liquidators say that the timeframes within which a summons for examination must be served and by which an examinee must respond, are set out in the Federal Court (Corporations) Rules 2000. Rule 11.4 of those Rules provides that a summons for examination must be served at least eight days before the date fixed for the examination and r 11.5 provides that a person served with an examination summons must apply to the court within three days after being served if they seek to have the summons discharged. The Special Purpose Liquidators say, correctly, that they complied with all of the legislative requirements in relation to the subject matter in question. 29 Mr Palmer has put on written submissions on the question of costs. He says that in conducting a preliminary review of the proceedings commenced in the High Court with a view to determining the way in which that matter ought to proceed (and whether a question might be framed for the consideration of the Full Court), Chief Justice Kiefel expressed the view that her Honour rather thought that the primary judge and, later, Justice Perram who heard the application for leave to appeal, both took the view that the constitutional argument advanced by Mr Palmer and the other two applicants was "wrong" but not that the contention was "unarguable". The Chief Justice observed that "arguable is a fairly low threshold". Mr Palmer says that consistent with that view, the contentions he and the others were advancing on the constitutionality of the provisions were "arguable". 30 Mr Palmer goes on to say that the question of the constitutionality of the provisions was heard and determined by the Court in the principal proceeding prior to any argument being heard from Mr Palmer in relation to objections taken by the respondents to Mr Palmer's affidavit in support of the application. That issue concerned an affidavit which contained a wide-range of factual allegations about a range of matters. The allegations were said to be "scandalous" in the technical sense in which that term is used. Of course, the question alive in relation to the constitutionality of the relevant provisions is a question of law. The provisions either are valid as conferring a power characterised as an exercise the judicial power of the Commonwealth, or not. The question is not determined by the resolution of a collection of factual allegations about the conduct of a range of individuals in particular circumstances. 31 The Court reserved the question of whether the particular allegations were scandalous or not and dealt with it otherwise. 32 The Court proceeded to deal with the legal and constitutional question and heard argument extensively from Mr Palmer about that matter. The notion that he was not properly heard or alternatively not properly heard, because the question of his response to objections to factual matters in an affidavit was not dealt with first, is entirely groundless. 33 Mr Palmer says that because his application was, in truth, "arguable" and because he was "successful in resisting the summons in respect of production", he ought to be awarded the costs of the application. Mr Palmer was not successful in resisting the summons in respect of production. The correct position is that discussions had taken place and that aspect of the summons was adjourned to enable discussions to continue. The issue of production was not addressed on the day because it was common ground that it did not need to be addressed on the day. It was addressed otherwise later in time. 34 In relation to the principal matter addressed in the hearing of each application, each applicant was unsuccessful. They were unable to make good the proposition that the provisions were unconstitutional. 35 Accordingly, in the exercise of the discretion, the respondents ought to have the costs of each application against the relevant applicant of and incidental to each application but only on the usual basis and not on the footing of an order for indemnity costs. The assessment of the costs will, of course, take into account costs common to all applications as all applications were heard together. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.