PALMER -v- CITIC LTD [No 15] [2025] WASC 202 (23 May 2025)

1. This action concerns the plaintiffs' claim for substantial damages, by way of a contractual indemnity, connected with the failure on the part of the defendants (the CITIC Parties) to make royalty payments which were due to the second plaintiff (Mineralogy). Those royalty payments were due to be made pursuant to the contractual instruments which underpin the parties' commercial relationship in the Sino Iron Project.
2. At the core of the loss and damage claim, which is legally and factually complex, is the diminution of the value of the shareholding of the first plaintiff (Mr Palmer) in the entities which formerly owned and operated a nickel and cobalt refinery in Queensland (Yabulu Refinery). The Yabulu Refinery was operated as a joint venture, but ceased as a going concern in 2016 following the voluntary administration and then liquidation of the manager and operator of the venture, Queensland Nickel Pty Limited (QNI).
3. In broad terms, it is asserted by the plaintiffs that, if the relevant royalty payments had been made by the CITIC Parties, Mineralogy would have provided funds to QNI to enable it to continue to manage and operate the joint venture business.
4. The trial of the action, which was filed by the plaintiffs around 8 years ago in June 2017, is due to commence on 3 June 2025. The trial commences almost immediately following the trial of the action in CIV 2336 of 2023, involving substantially the same parties. The two actions raise some common issues of fact and law, which has led to the scheduling of an overlap hearing to determine those common matters.

1. The Seventh Amended Statement of Claim dated 22 April 2024 is the latest pleading filed by the plaintiffs (7ASOC).[6] In that pleading, the plaintiffs advance a claim that the defendants are required to indemnify them for the loss suffered by Mr Palmer in accordance with cl 11.5(c) of the Fortescue Coordination Deed (FCD). I reviewed the pleadings of the parties in some detail in the reasons published as Palmer v CITIC Ltd [No 13],[7] which concerned an application to strike-out paragraphs of the defence.
2. The case advanced by the plaintiffs, at a factual causal level, is largely found in [44] and [44A] of the 7ASOC.
3. At [44] of the 7ASOC, it is alleged that the plaintiffs did not pay the royalty payments to Mineralogy (being the RCB payments),[8] which were due and owing under the MRSLAs,[9] in the period between December 2013 and March 2017 (in general terms). There is a particular focus on the period towards the end of 2015 when the Mineralogy Parties assert that working capital in the amount of $28m was required by QNI.
4. At [44A] of the 7ASOC, it is asserted that, if the RCB payments had been made, Mineralogy would have provided funds to QNI to enable it to continue to manage and operate the joint venture business. QNI went into voluntary administration and then liquidation during the early months of 2016, as pleaded at [45] to [47]. At [47A] of the 7ASOC, the plaintiffs plead as follows:

[47A] The matters pleaded in paragraphs 45 to 47 inclusive hereof had the effect on the Palmer Shareholding that:

(a) Palmer lost the ability to sell the Palmer Shareholding on the basis of the Yabulu Refinery as a going concern;

(b) Palmer would have commenced marketing the Yabulu Refinery in March 2016 and a sale would have been completed by June 2016;

(c) Palmer was instead left with the ability to sell the Palmer Shareholding on the basis of the Yabulu Refinery being in care and maintenance without any associated going concern business.

1. The pleading at [44A] of the 7ASOC is said by the defendants to be a critical aspect of the plaintiffs' case, insofar as the causation case is concerned. The defendants focus attention on the plea at [44A(b)(iii)] which asserts that, if QNI had taken the measures alleged in (i) and (ii) (namely to forecast its cashflows and taken measures to ameliorate its forecast negative cashflow), QNI 'would have (in the absence of funding) had a cashflow deficit in between about November 2015 and 2017' as is particularised in the table which follows in the pleading.
2. The table within [44A] initially pleaded a period from December 2015 to June 2018, but that has been amended to confine the relevant period to December 2015 to March 2016 only. Further, the particulars to [44A(b)(iii)] assert that it was not viable to restart the Yabulu Refinery after the general purpose liquidators closed the plant and placed it in care and maintenance, and assert that additional funding was not required after that time.
3. To round out this analysis, it is necessary to refer to [44A(c)], which pleads that Mineralogy 'would have provided to QNI the funds required to meet the cashflow deficit...at the times necessary to enable QNI to continue to manage and operate the Joint Venture business'. The cashflow deficit alleged is that set out in the table identified above, confined to the period from December 2015 to March 2016.
4. At [48] of the 7ASOC, Mr Palmer alleges he suffered a loss by reason of the foregoing matters in that he was unable to sell his shares on the basis the Yabulu Refinery was a going concern. It is pleaded that Mr Palmer had a beneficial shareholding in QNI and the other related entities. At [49] of the 7ASOC, Mr Palmer alleges he suffered a loss in the diminution in value of his shareholding in various entities. The relevant pleadings are as follows (with the mark-up for the amendments removed):

[48] As a consequence of the matters alleged in paragraph 45 to 47A inclusive hereof, there was a diminution in the value of the Yabulu Refinery in that:

(i) The Plaintiffs' best estimate of the diminution in the value of the Yabulu Refinery is $1,800,438,000 (being $1,950,438,000 less $150,000,000).

(ii) The combined value of the net assets of QM and QR as set out in the audited Special Purpose Financial Reports for the Year ended 30 June, 2015 for each of QM and QR, each dated 7 September, 2015, was $1,950,438,000, being the value of the Joint Venture business on the basis of the Yabulu Refinery as a going concern. A copy of the audited Special Purpose Financial Reports are in the possession of the Plaintiffs' solicitors and available for inspection on request.

(a) The audited Special Purpose Financial Reports included a unqualified audit opinion of Ernst and Young which stated "In our opinion the financial report presents fairly , in all material respects, the Queensland Nickel Group's financial position as of 30 June 2015 and of its financial performance and cash flows for the year then ended in accordance with the accounting policies described in Note 1 to the financial statements.".

(iii) [deleted].

(iv) The Plaintiffs' best estimate of the value of the Yabulu Refinery once it was no longer a going concern is $150,000,000.

(a) The Plaintiffs refer to the report of Campbell Toorn Jaski prepared on or about 8 September 2017. The report of Campbell Toorn Jaski was commissioned by the special purpose liquidators appointed to QNI, independently of the plaintiffs and opined on the value of the Yabulu Refinery.

(b) Further particulars may be provided upon completion of interlocutory processes.

(v) [deleted].

[49] As a consequence of the matters alleged in paragraphs 39 to 48 inclusive hereof, Palmer suffered loss in that:

(i) As a consequence of the matters alleged in paragraph 48 hereof, there was a diminution in the value of the shares of QM and QR equivalent to the diminution in the value of the Yabulu Refinery alleged in paragraph 48 hereof.

(ii) As a consequence of the matters alleged in subparagraph (i) there was a diminution in the value of the Palmer's shareholding in Nickel Consolidated Pty Ltd, Nickel Processing Pty Ltd and Nickel House Pty Ltd equivalent to the diminution in the value of the shares in QM and QR.

(iii) [deleted]

1. In the alternative to [48] and [49] of the 7ASOC, there was a loss of opportunity case pleaded at [49A],[10] to the effect that Mr Palmer lost the opportunity to sell his shareholding for market value. That alternative case is no longer pressed by the plaintiffs.[11]
2. In the plaintiffs' opening trial submissions, the plaintiffs have summarised their contentions as to loss in the following way:[12]

The plaintiffs contend that their loss that is recoverable pursuant to clause 11.5(c) of the FCD 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. The plaintiffs will ask the Court to assess this as being the difference between the value of the Yabulu Refinery as a going concern on 18 January 2016, being a figure in the range of A$1.048b (Conoulty) to A$1.950b (FY2017 Audited accounts) against the value upon ceasing as a going concern (being in the range of $nil to $227m, based on the Birkett and/or Jaski figures).

1. The above reference in the submissions to 'Conoulty' is to the First Conoulty Report. The references to 'Birkett' and 'Jaski' are to the expert evidence prepared by Mr Scott Birkett dated 20 February 2025 (Birkett Report) and Mr Campbell Jaski dated 8 September 2017 (Jaski Report).
2. The defendants 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. See [48] of the Amended Substituted Defence dated 17 May 2024 (Defence).[13] The defendants further plead as follows:

(a) in the circumstances pleaded in paragraphs 44, 44A and 48 above, Palmer has not suffered loss as a consequence of the matters pleaded in paragraphs 39 to 48 of the statement of claim inclusive; and

(b) in respect of his claim, Palmer has not brought to account the recent, asserted proposed transaction purportedly comprising the sale of the Yabulu Refinery to Zero Carbon Investek AG.

PARTICULARS

The defendants refer to a:

(a) 2022 Share Sale and Purchase Agreement in respect of QNM, with Palmer Metals Holdings Pty Ltd as seller;

(b) 2022 Share Sale and Purchase Agreement in respect of QNR, with Palmer Resource Holdings Pty Ltd as seller; and

(c) 2022 Share Sale and Purchase Agreement in respect of Marlborough Nickel Pty Ltd.

1. At [50] of the Defence, the defendants contend that any loss is not 'in relation to' the failure to make the royalty payments, but was in relation to what is described as 'Palmer's Own Decision'. That is a decision said to have been taken by Mr Palmer not to provide funds for the continued operation of the Yabulu Refinery business (see [44(b)(v)] and [44A] of the Defence).
2. The pleading at [50] of the Defence sets out allegations concerning the losses made by the Yabulu Refinery business commencing in the 2012 financial year. At [50A], further allegations are incorporated which are said to support the plea as to 'Palmer's Own Decision', including allegations that Mr Palmer could have chosen to repay certain debts or make assets available to QNI.
3. At [50C] of the Defence, the defendants plead that any loss occurred because of Mr Palmer's failure to take reasonable steps to minimise or avoid the loss and damage, which is pleaded to be a breach of cl 9.1(e) of the FCD.
4. There is a lengthy response pleaded by the plaintiffs in the Reply to the Amended Substituted Defence dated 3 June 2024 (Reply).[14] I need not traverse the entirety of that pleading, other than to note the plaintiffs' contentions in [29(ah)] of the Reply that:

(i) the allegation in paragraph 48 of the defence is wrong, as the value of property, plant and equipment, which made up the bulk of the combined value of the net assets of QNM and QNR, were arrived at and verified by a valuation methodology based on discounted cashflow models;

(ii) the market value of the Yabulu Refinery as a going concern was the $1,950,438,000.00 recorded in the 2015 Audited Accounts, derived by the discounted cashflow models and approved by the auditors, and pleaded in paragraph 48(ii) of the statement of claim;

(iii) once the Yabulu Refinery ceased to be a going concern the best estimate of its value is that set out in paragraph 48(iv) of the statement of claim;

(iv) thus, if the Plaintiffs' loss is, as one of the available measures of damages they are entitled to seek, measured as of the time they ceased to have a going concern business, it is that pleaded in subparagraphs 48(i) - (iv) of the statement of claim.

D. Expert evidence orders made on 15 January 2025

1. On 15 January 2025, the following orders as to the filing of expert evidence were made, order 5 of which is the present focus of attention:[15]
   1. Further to order 16 of the orders made by the Honourable Justice Lundberg on 26 September 2024, the parties have leave to adduce expert evidence at the trial of this proceeding on the topics set out in Schedule 1.
   2. As soon as practicable after any expert witness is engaged for the purpose of preparing a report or giving evidence in the proceedings and before the expert makes a report, the engaging party must provide the expert witness with a copy of PD 4.5.2 - Expert Evidence, including 4.5.2.1 - Harmonised Expert Witness Code of Conduct.
   3. By Friday, 14 February 2025, the plaintiffs must file and serve on the defendants a copy of the report of any expert witness whose evidence is to be adduced in relation to topics 1 to 3 set out in Schedule 1 by the plaintiffs in this proceeding.
   4. By Friday, 11 April 2025, the defendants must file and serve on the plaintiffs a copy of the report of any expert witness whose evidence is to be adduced in relation to topics 1 to 5 set out in Schedule 1 by the defendants in this proceeding.
   5. By Friday, 2 May 2025, the plaintiffs file and serve on the defendants a copy of a report of any expert witness that is responsive to the report of an expert witness of the defendants in relation to topics 4 and 5 set out in Schedule 1.
   6. If there are differences between the evidence of the parties' respective expert witnesses, then, by Wednesday, 7 May 2025, the parties must confer, by their legal representatives, with a view to agreeing a process by which their respective expert witnesses will confer for the purpose of narrowing or removing those differences and delivering a joint expert report.
   7. Following the conferral referred to in paragraph 6 above, the Court will, if necessary, hold a directions hearing on Friday, 9 May 2025 to consider any matters on which the parties do not agree, to make further directions if required and to make orders for conferral between the parties' respective expert witnesses and the delivery of a joint expert report.
2. The time period in order 5, being 3 May 2025, was extended by consent to 13 May 2025.[16]
3. As appears from the above orders, a schedule was attached to the orders, which I have set out in Attachment A to these reasons. The following features of the schedule should be noted:

(a) The schedule included prefacing words to the effect that the parties were not, as of January 2025, able to define the questions, facts and assumptions with precision, and the parties would be better placed to do so in due course. The prefacing words also noted the possibility the topics and subject matters might be subject to amendment. No such amendments have been proposed, however.

(b) The schedule incorporated a table which identified the topics or subject matters for the expert evidence in a relatively defined manner, by reference to a particular discipline or disciplines and, importantly in my view, by reference to particular pleaded allegations. The terms of the schedule, including the topics, were agreed by the parties.

(c) The first topic identifies the subject matter as relating to the accounting standards and other requirements applicable to the 2015 Financial Statements, the application of those standards and requirements, and otherwise focused on the 2015 Financial Statements. The schedule makes it apparent that these topics were relevant to the pleaded allegations in [48] and [49A] of the 7ASOC and in [29] of the Reply.

(d) The second topic identifies the subject matter as relating to the market for metallurgical assets, characteristics of QNI, appropriate methodologies for valuation of Mr Palmer's shareholding, and the value of that shareholding as certain points in time, including as a going concern on the basis QNI was not placed into administration.[17] The pleadings identified are [48] and [49A] of the 7ASOC, the pleadings at [36], [47A], [48] and [49A] of the Defence, and [29] of the Reply.

(e) The third topic identifies the subject matter as relating to the financial position of QNI had the royalty been paid, the practices of the insolvency industry in certain respects, and the advice a careful and competent insolvency practitioner would have given to QNI in certain respects. The topic is stated to be referable to the pleadings identified at [44A], [48] and [49A] of the 7ASOC, the pleadings at [44A], [50], [50A] and [50C] of the Defence, and [1AA] and [27AC] of the Reply.

(f) The fourth topic identifies the subject matter as relating to an analysis of the joint venture's historic and forecast financial performance and financial position, an analysis of Mr Palmer or his entities to fund or procure funding for QNI in the absence of the royalty payments, and an analysis of the joint venture liabilities to be met upon the Yabulu Refinery ceasing to operate. The topic is stated to be referable only to the pleadings identified at [44A], [50], [50A] and [50C] of the Defence.

(g) Finally, the fifth topic relates to the valuation and finance evidence connected with topic 3(e), including the valuation of the assets listed in schedules 2 and 3 of the Defence and the lending parameters in connection with those assets. The reference to topic 3(e) is an error. It is likely to have been a reference to topic 4(b), given the pleading references. The fifth topic is stated to be referable only to the pleadings identified at [50A] and [50C] of the Defence.

1. For completeness, I should also note that the orders made on 15 January 2025 were originally intended to be made by the Court (in the same terms) on 20 December 2024. Due to an administrative error on the part of the Court, the orders were not correctly made on that date. The parties identified this issue in January and the orders were then formally made on 15 January.

E. Expert evidence filed by the plaintiffs pursuant to order 3

1. Order 3 required the plaintiffs to file their expert reports in relation to topics 1 to 3, by 14 February 2025. Pursuant to that order, the first tranche of expert reports was filed by the plaintiffs in February 2025. The plaintiffs filed the First McCallum Report, the First Conoulty Report, and the Birkett Report.

1. Ms McCallum is a qualified accountant and the managing director of a consulting firm. Ms McCallum provides business valuation, forensic accounting and financial investigation services in that capacity. Her qualifications include a Bachelor of Business degree from the University of Technology in Sydney, and a qualification as an Accountant. Ms McCallum is a former member of Chartered Accountants Australia & New Zealand and currently a member of the Institute of Public Accountants.
2. The First McCallum Report provides an opinion relating to the solvency of QNI and its cash position as of 18 January 2016. Her first report thus focused on the topic identified as topic 3(a) in the schedule to the Court's order.
3. This report is relevant to the assessment required as to the steps QNI would have taken, as a result of the late 2015 forecast, to ameliorate the forecast negative cashflow, such as limiting capital expenditure, reducing workforce, reducing operating costs and extending the date for payment of creditors. By taking these measures, the plaintiffs submit that QNI would have experienced a cashflow deficit in the period through to March 2016, when the plant was placed into care and maintenance, and rely on the First McCallum Report in this regard.[18]

1. Ms Conoulty is a Managing Director of Sapere Research Group Limited and a member of its forensic accounting and valuation team. Ms Conoulty holds a Bachelor of Accounting and Finance degree from the University of Technology in Sydney. Ms Conoulty also holds a qualification as a Chartered Accountant and a qualification as a Forensic Accounting and Business Valuation Specialist as designated by Chartered Accountants Australia & New Zealand.
2. The First Conoulty Report provides an opinion relating to the appropriate methodologies to assess the fair market value of the Yabulu Refinery business, assuming it was solvent at the valuation date and that QNI would have received such funds from Mineralogy as were necessary to continue to manage and operate the business. Ms Conoulty then provides a fair market value of the Yabulu Refinery on 18 January 2016, on the assumption that Mineralogy provided the funding which was necessary. That valuation is $1.048bn.[19] When approached by reference to the Wood Mackenzie forecast nickel prices, rather than an average of available forecasts, the valuation calculated by Ms Conoulty is $1.674bn.[20]

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. In the Birkett Report, Mr Birkett foreshadows an intention to rely on the Jaski Report, being the report prepared by Mr Jaski in September 2017. Mr Birkett states his report is 'reliant on the analysis conducted in the Jaski Report, which adopts a valuation date of 31 August 2017'[21] and that in providing the opinions set out in his report, he has 'primarily had regard to the Jaski Report'.[22]
3. Mr Jaski had been engaged by King & Wood Mallesons, the solicitors acting for the Special Purpose Liquidators of QNI, to prepare an expert witness report providing his opinion as to the value of the Yabulu Refinery. The Jaski Report was prepared for the purposes of litigation which was conducted in the Supreme Court of Queensland some years ago.[23]

1. Taking this expert material together, it can be seen that, consistent with the plaintiffs' pleaded case, the plaintiff was presenting ahead of the trial a 'loss case' focused on the reduction in value of the Yabulu Refinery upon that refinery ceasing to operate as a going concern on 18 January 2016.
2. In order to value that loss, the plaintiffs would rely at trial on the valuation assessment which appeared in the First Conoulty Report, reduced by the valuation of the Yabulu Refinery upon ceasing as a going concern which could be found in the Birkett Report (which in turn was based on opinions expressed in the Jaski Report).

F. Expert evidence filed by the defendants pursuant to order 4

1. The second tranche of expert reports was filed by the defendants in April, pursuant to order 4. The order permitted the defendants to file expert evidence in respect of topics 1 to 4 as described in the schedule to the orders. The defendants filed the four separate reports of Mr Meredith to which I have earlier referred. At one level, it might be thought unusual that one expert would provide four separate reports, all filed in close proximity to each other, in the same action. Whilst unusual, perhaps, it is nonetheless an approach permitted by the orders and, indeed, consistent with the identification of specific topics in those orders.
2. It is apparent that the 'Accounting Report' prepared by Mr Meredith was filed in relation to topic 4. The defendants accept that the plaintiffs have a right to respond to this report.
3. The 'Critique of Birkett Report' prepared by Mr Meredith was filed in relation to topics 1 to 3. The 'Conceptual Loss Report' prepared by Mr Meredith, which is responsive to the loss case set out in the reports of Ms Conoulty and Mr Birkett, was also filed in relation to topics 1 to 3. The 'Critique of Conoulty Report' prepared by Mr Meredith was filed in relation to topics 1 to 3 as well. The defendants say the plaintiffs have no right to respond to these reports in light of the current orders.
4. Within the 'Conceptual Loss Report', as explained by the defendants during argument, Mr Meredith has, at the level of principle, responded to the approach adopted by Ms Conoulty and Mr Birkett, and offers no calculations or valuation. Mr Meredith has opined that the 'Valuation Difference Method', which was the method described in the question he was asked to address,[24] is not an appropriate approach to assessing the plaintiffs' alleged loss as described at [48] and [49] of the 7ASOC. This is because, in his experience, a loss quantification:[25]

(a) compares the position the plaintiffs would have been in had the RCB 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 RCB 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. However, Mr Meredith opines that, in the 'Valuation Difference Method':

(a) the valuation undertaken by Ms Conoulty does not reflect the Counterfactual Position;

(b) the valuation in the Birkett Report does not reflect the Actual Position;

(c) hindsight is not incorporated where available; and

(d) the assessment is not performed at a point in time.[26]

1. Further, and irrespective of these views, Mr Meredith explains that the plaintiffs' alleged loss cannot be properly quantified using the 'Valuation Difference Method' by reference to the valuations in the Conoulty Report and the Birkett Report.[27] He explains that this is because these valuations differ from one another and those differences are unrelated to the consequences of the non-payment of the RCB.

G. Expert evidence filed by the plaintiffs pursuant to order 5

1. That brings me to the Second McCallum Report and the Second Conoulty Report.
2. The Second McCallum Report indicates that the author had, during the course of the preparation of her first report, prepared a projected cashflow for QNI through to June 2017. That cashflow was not submitted as part of the first report. This is a point emphasised by the defendants.
3. In broad terms, Ms McCallum addresses matters raised by Mr Meredith but does not defend or further explain the opinions in the First McCallum Report. Rather, new material has been included which is said to have been prepared at the time of the first report but was not included in that earlier report.
4. The Second Conoulty Report attempts to calculate loss using a different method to the First Conoulty Report, using a method that does not involve valuing the joint venture business, or Mr Palmer's shares. Rather, Ms Conoulty uses hindsight where information is now known and compares certain cash flows calculated on that basis with the assumed actual cash flows of the business during the same period.
5. The Second Conoulty Report thus operates as a standalone report, intended to be read independently of the First Conoulty Report.

1. Senior counsel for the defendants contends the further reports of Ms McCallum and Ms Conoulty have been filed outside the terms of the orders of the Court made on 15 January 2025 and, additionally, contends that the reports now raise matters which properly require the plaintiffs to seek leave to amend their case. If such leave is sought, the defendants strongly oppose leave being granted.
2. Senior counsel for the plaintiffs reject both propositions and contends no leave is required on either score. Senior counsel for the plaintiffs also submits that Mr Meredith's 'Conceptual Loss Report' raises issues which fall outside the defendants' pleaded case, but that is not an issue on which I have yet heard full argument and I will put that submission to one side for now.[28] Similarly, I will not address in these reasons the question whether, if I find that leave is required, such leave should be granted. That question has not yet arisen.

1. The defendants contend that the Second McCallum Report and the Second Conoulty Report purport to be in response to the Conceptual Loss Report. However, it is submitted that, as is apparent from the instructions given to those experts, these reports adduce new evidence with the 'obvious aim of circumventing certain flaws or gaps identified by Mr Meredith'.[29]
2. The defendants submit that the new reports 'do so not by way of defence of the reasoning in the original reports but by expressing entirely new opinions'.[30] Specifically:[31]

[19] In the case of Ms Conoulty's report, it presents a new and unpleaded loss case, apparently as Plan B (or C) should the reports of Mr Birkett and Mr Jaski be excluded. In the case of Ms McCallum's report, a simple comparison of the questions put to Ms McCallum for her original report against the questions put to her for her "reply" report exposes that the plaintiffs are seeking to adduce new evidence-in-chief. It purports to be a response to Mr Meredith, when in truth all Mr Meredith did was observe that Ms McCallum's original report did not address QNI's cashflows beyond 18 January 2016. But that was because the plaintiffs did not ask her to.

[20] The Court should not accept the plaintiffs' strained and unconvincing reading of the topics in Schedule 1 to suggest that these reports are responsive to Mr Meredith and within topic 4 as ordered. Ms Conoulty's report purports to calculate the plaintiffs' loss. Topic 4 is directed only to pleas in the CITIC Parties' defence. It certainly does not go to allegations that are not the subject of any filed pleading. And as question 5 in Ms McCallum's new report makes very clear, the report is directed at topic 3(a) and what is a central allegation in the plaintiffs' primary case (at 7ASOC [44A]).

1. The defendants submit that the plaintiffs are now seeking to advance an alternative loss case, which has not been pleaded, and are seeking to submit new expert evidence in support, when their expert evidence-in-chief was required to have been served on or before 14 February 2025.[32]
2. Further, the defendants complain that the plaintiffs are similarly seeking to submit new expert evidence as to QNI's alleged cashflow shortfall in support of their primary case. That evidence was required to have been served on or before 14 February 2025.[33]
3. As explained by the defendants, the only sense in which the new expert reports are responsive is that they are an apparent attempt to address criticisms of the plaintiffs' expert evidence made by Mr Meredith.[34]
4. The practical effect of the plaintiffs filing these reports, according to the defendants, is that they seek to avoid the exercise of the Court's case management powers. In order to rely on these new reports at trial, the defendants maintain that the plaintiffs require leave to amend their pleadings to advance the alternate loss case and also require leave to file the new expert reports.
5. Further submissions have been made by the defendants as to why leave should not be granted. As one might expect, the defendants seek to highlight case management principles in this regard, including the goal and objects stated in O 1 r 4A and r 4B RSC and the principles expressed by the High Court in Aon Risk Services Australia Ltd v Australian National University.[35] Matters of prejudice to the defendant are emphasised in the defendants' submissions and supported by the affidavit of Ms Tania Cini sworn on 20 May 2025.[36]

1. The plaintiffs' position is easily expressed. The plaintiffs do not seek leave to file the new reports, they do not seek leave to amend their pleadings, and they maintain there is no need to do so.
2. The plaintiffs submit that:[37]

[10] The Conoulty Reply Report does not advance an alternative loss case. The Palmer Parties do not, and do not intend, to advance an alternative loss case. The CITIC Parties recognise this: 20 May 2025 directions hearing T1909-1910.

[11] The Palmer Parties' loss case is pleaded at 7FASOC [48] and [49] (having regard to matters pleaded in [47A] and [44A]). The loss is predicated on the diminution of the value of the Yabulu Refinery when it ceased to operate as a going concern, and the consequent diminution in value of the Palmer Shareholding.

[12] The CITIC Parties accept Ms Conoulty's primary report is consistent with the Palmer Parties' pleaded case: CS[13], but the CITIC Parties now beg confusion as to the Palmer Parties' loss case.

[13] It has not changed.

1. The plaintiffs submit that Ms Conoulty is 'doing no more than expressing her opinion as to the loss figure if the approach advocated by Mr Meredith is pursued'.[38] Ultimately, the plaintiffs contend the point is resolved on a construction of the orders, and submit that the terms 'responsive' and 'in relation to' are sufficiently broad to permit the course which they have adopted.
2. Additionally, the prefatory notes to the schedule to the orders are said to be important, in that the plaintiffs say they reflect an overlap between the matters set out, and point to the existence of issues of definition in relation to the topics.[39] Mr Dunning KC submitted that it is the 'topics' in the schedule which operate to limit the orders, and to confine order 5, rather than the allegations in the pleading.
3. At a granular level, the plaintiffs submit that the various passages of Mr Meredith's 'Conceptual Loss Report' are the subject of responses in both the Second McCallum Report and the Second Conoulty Report.[40] Specifically:

(a) The Second McCallum Report is said to be responsive to the criticisms which are set out in 1.6.2(a), 1.6.2(b), 1.6.2(c)(ii) and (iii), 6.1.1(a), 6.1.1(b) and 6.1.1(c)(ii) and (iii), and deals with topics 4(a) to 4(c) and topic 5(a). The plaintiffs point to [1.1.2] and [1.1.7] of the Second McCallum Report in this regard.

(b) The Second Conoulty Report is said to be responsive to 1.4.2(a)(A)(i)(a), 1.4.2(B), 1.4.2(C)(ii), 3.1.1, 3.2.1(b), and 3.2.1(c) and deals with topics 4(a) and (b). The plaintiffs point in particular to [5] on page 3 of the Second Conoulty Report. The plaintiffs contend that the report calculates the loss on the basis which Mr Meredith has asserted is the proper basis on which it should be calculated.

1. The issue raised by the defendants is procedural in nature, but has ramifications for the further conduct of this action and the trial. In particular, the defendants have pointed to the additional time which Mr Meredith would require in order to respond to the new reports filed by the plaintiffs. Mr Meredith would require between 4 and 12 weeks to respond, depending on certain assumptions.[41]
2. If that scenario were to develop, and orders were made to permit Mr Meredith to prepare additional material, the trial is unlikely to be able to proceed in the orderly manner presently contemplated.
3. Accordingly, I have given prompt attention to the issue raised by the defendants, which was heard on 20 May 2025. These reasons will be provided to the parties on 23 May 2025, and a directions hearing has been scheduled for 26 May 2025 to hear from counsel as to the next steps and any applications the parties wish to make in the circumstances.
4. For the reasons explained below, I consider the defendants' contentions are correct. In my view:

(a) the Second McCallum Report and the Second Conoulty Report have not been filed in accordance with the orders of the Court, in that the material in those reports is not properly responsive to the expert evidence of Mr Meredith concerning topics 4 or 5; and

(b) the loss case which now appears in the Second Conoulty Report, based on the Counterfactual Cash Flows, would fall outside the plaintiffs' 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.

1. In reaching that conclusion, I have addressed below the construction of the orders made on 15 January 2025 and the substance of the expert reports filed when viewed against the orders which were made. I have then addressed the new reports in light of the current scope of the pleadings.

1. The first issue to address is the scope and proper construction of the orders made by the Court on 15 January 2025 concerning the filing of expert evidence.
2. The approach to adopt in this regard is one that I recently had cause to address, in Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 12].[42] I refer to the principles set out in that case, which included reference to the Court of Appeal's decision in Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [No 2],[43] without repeating them here. For completeness, I also refer to the principles summarised by the Court of Appeal in WA Glass Pty Ltd v Auto Control Systems Pty Ltd [No 4],[44] in which that Court's earlier decision in Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [No 2] was cited.
3. In approaching the construction of the orders made on 15 January 2025, it is permissible to have regard to the context in which the orders were made including the surrounding circumstances. In doing so, I should keep in mind that orders of the Court are generally framed with a view to being self-contained and self-explanatory. Additionally, the surrounding circumstances are not admissible to contradict the language of the orders where that language is unambiguous or susceptible of only one meaning.
4. Further, the Court should be cognisant that, ordinarily, the purpose of a court order is to give effect to reasons for decision - the reasons for decision are the source of the order. Where an order is derived from the reasons, the order must conform with the reasons. Hence it is said that reasons for decision have 'primacy' as a source for interpretation of an order. That issue assumes less significance in this case as the orders were made by consent, without reasons being given by the Court.
5. That said, the final orders made were shaped by the earlier orders made on 6 December 2024, in which the Court directed that the parties prepare minutes of orders concerning expert evidence, which were to address the proposed topics of expert evidence by reference to the pleadings. Order 3(c) of those orders provided as follows:

(c) subparagraph 18(d) be varied such that, in lieu of the matters identified in order 18(a) of the September Orders, the agreed or competing minutes will identify:

(i) the nature of the proposed expert evidence (i.e. the field of specialised knowledge of the proposed expert); and

(ii) the subject matter or topics of the proposed expert evidence (identifying each issue in the pleadings to which the evidence is directed).

1. The orders as made on 15 January 2025 outlined a cohesive structure by which the parties would be permitted a fair opportunity to adduce evidence of an expert nature on particular topics, allowing the plaintiffs an opportunity to file responsive evidence (by order 5) only in respect of particular topics. Those topics were confined to topics 4 and 5, having regard to the pleadings identified in the schedule. Provided the plaintiffs' material was 'responsive' to the report of an expert witness of the defendants, where that expert evidence was 'in relation to' topics 4 and 5, then the plaintiffs had been given an opportunity to file additional material in response.
2. The issue raised by the parties focuses attention on the concepts of 'responsive' expert evidence, the words 'in relation to', and the scope of the topics described in the schedule.[45]
3. The plaintiffs' construction of the orders, in my view, adopts too literal an approach, at the expense of the evident purpose, context and operation of the orders, particularly when construing the terms 'responsive' and 'in relation to'. To approach the term 'responsive' as meaning 'a reaction to', gives inadequate attention to the context in which the word appears. Further, to say that the words 'in relation to' are words of wide connection does not advance matters very far. Again, context is important.
4. The orders made by the Court must be seen in the context of the orders made by the Court on 6 December 2024 and the Court's Practice Direction as to the filing of expert evidence. That Practice Direction is expressly identified in order 2 of the orders made.
5. Within the Practice Direction, the purpose of the use of expert evidence is emphasised, which is 'for the Court to receive the benefit of the objective and impartial assessment of an issue from a witness with specialised knowledge', it being the case that the Court 'is often assisted by expert evidence where the subject matter of the proceedings is complex': PD 4.5.2, [1].
6. Further, the directions given by the Court in relation to expert evidence orders:

...should be consistent with the overriding objectives contained in O 1 r 4A and 4B. The Court's objective is to make timely, efficient, fair and effective use of expert evidence. It will make directions on a case-by-by case basis, taking into account the nature, scope and complexity of the issues in the case and whether the costs are proportionate to the matter in dispute and financial position of the parties: PD 4.5.2, [7]

1. The Practice Direction states that expert evidence should promote the following purposes, namely to encourage the early identification of issues in dispute that will be the subject of expert evidence, to improve the utility of expert evidence by ensuring that it is focused on the issues genuinely in dispute, and to make use of the existing pre-trial processes at the earliest practicable opportunity: PD 4.5.2, [8].
2. Finally, it is notable that the Practice Direction provides that 'leave to adduce expert evidence will not be given at large', and parties seeking leave should 'provide some identification of the issues upon which the expert will be asked to give evidence' and 'the field of expertise of each proposed expert: PD 4.5.2 [9].
3. When the foregoing principles are recognised and applied, in the context of this particular case, I consider the orders made on 15 January 2025 must be construed:

(a) in an objective manner and having regard to the ordinary natural meaning of the words used;

(b) viewed as being self-contained and self-explanatory;

(c) having regard to the context in which the orders were made, including the orders made on 6 December 2024; and

(d) having regard to the purpose of the orders which was to establish a structured regime to ensure each party had a fair opportunity to respond to the other parties' case, to improve the utility of the expert evidence filed by the parties by ensuring that it is focused on the issues genuinely in dispute, and by reference to defined disciplines and allegations in the pleaded cases.

1. When that analysis is undertaken, it is tolerably clear that the term 'responsive' when used in relation to orders of the Court, such as in order 5, while broad in nature in the sense that it permits a party to respond to or to answer the other party's primary expert evidence, is confined in an important respect.
2. Specifically, the term 'responsive' does not permit a party to thereby present an entirely new contention or case, and certainly not a case which could have been presented as part of the parties' case in chief. A wider view of the term would undermine the evident purpose of the regime for filing expert evidence and offer unnecessary latitude to the plaintiffs in the presentation of their expert evidence.
3. Further, in the context of these particulars orders, the plaintiffs were permitted an opportunity to respond to the expert evidence filed by the defendants in a confined way by reference only to matters identified in topics 4 and 5, concerning the pleaded allegations in [44A], [50], [50A] and [50C] of the Defence.
4. Given the terms and structure of the orders made, and given the orders made on 6 December 2024 and the matters stated in the Practice Direction to which I have referred above, order 5 did not permit the plaintiffs to file further expert reports which were in substance in relation to topics 1 to 3, as that would deny the defendants a fair opportunity to meet that evidence, and did not permit the plaintiffs to file expert reports which were not properly 'responsive'.
5. The plaintiffs focused their position in this regard to say that the new reports relate to topic 4 and, with respect to the Second McCallum Report, topic 5. But the plaintiffs' preferred approach gives insufficient attention to the specific allegations within the pleading which were identified in the order. The proper construction of the orders must have regard to the identified issues in the pleadings upon which the experts were given leave to give evidence.
6. Topic 4 is confined to three matters, and confined or controlled by the pleaded allegations at [44A], [50] and [50C]. In this respect, the plaintiffs' submission that the orders are limited only by the 'topics' is not correct. The orders specifically identify the applicable pleaded allegations, as was required by the earlier orders made on 6 December 2024 and is emphasised in the Practice Direction. The inclusion of the relevant portions of the pleading in the orders emphasises the limit on the scope of the plaintiffs' ability to file responsive material.
7. Topic 5 is confined to the allegations in [50A] and [50C] of the Defence. The topic is described as 'valuation and finance evidence', including valuation of the assets listed in Schedules 2 and 3 of the Defence and the lending parameters in connection with those assets.
8. In my view, the plaintiffs' suggested approach to the expert evidence orders would only be correct if the orders had been quite differently structured.

1. The second issue to address is whether the Second McCallum Report and the Second Conoulty Report are, in substance, responsive to the expert evidence of Mr Meredith in relation to topics 1 to 3, or whether they are responsive to topics 4 and 5, in the sense I have explained above.
2. In my respectful view, these reports are not consistent with order 5 in that they are not responsive to Mr Meredith's opinions in respect of topics 4 and 5.
3. In the Second McCallum Report, Ms McCallum expressly states that there are no corrections or revisions she wishes to make to the First McCallum Report. The questions posed to Ms McCallum then direct her attention to the cashflow model she had prepared as part of her work in preparing the First McCallum Report, which was not submitted with that first report ([2.2.2]). This model included financial modelling through to June 2017.
4. Ms McCallum explains that this financial modelling has enabled her to determine QNI's projected cashflow deficit after 18 January 2016, as it incorporates both the original October 2015 forecast and subsequent adjustments reflecting actual historical data (at [2.2.3]).
5. The Second McCallum Report is plainly not responsive to Mr Meredith's 'Accounting Report'. It does not address matters which are the subject of topics 4 and 5, when understood by reference to the allegations in [44A], [50], [50A] and [50C] of the Defence. The report is directed to the matters described in topic 3(a). Further, as is quite evident from its contents, the Second McCallum Report addresses matters which could have been the subject of the First McCallum Report which forms part of the plaintiffs' expert evidence in chief and, indeed, concerns material which was developed during the preparation of the earlier report but which was not included.
6. The Second Conoulty Report is expressly directed to the 'Conceptual Loss Report' prepared by Mr Meredith (at [5]). The instructions given to Ms Conoulty required that she prepare a cashflow for the Yabulu Refinery business for the period from January 2016 to June 2024, on the basis of certain assumptions.
7. In the Second Conoulty Report, Ms Conoulty expressly states that there are no corrections or revisions she wishes to make to the First Conoulty Report in light of the 'Conceptual Loss Report'. Ms Conoulty properly explains that, as she was not asked any questions as to the calculation of loss in her first report, and as she did not express any opinions as to the calculation of loss in that first report, it follows there are no corrections or revisions she wishes to make in light of the "Conceptual Loss Report' (at [19])
8. The Second Conoulty Report is plainly not responsive to Mr Meredith's 'Accounting Report'. It does not address matters which are the subject of topics 4 and 5, when understood by reference to the allegations in [44A], [50], [50A] and [50C] of the Defence.
9. The Second Conoulty Report presents a new approach or analysis, relative to the first report, all of which could have formed part of the plaintiffs' expert evidence in chief, had that been part of the plaintiffs' case.
10. The orders made on 15 January 2025 permitted the plaintiffs an opportunity to respond to the expert evidence presented by the defendants in respect of the defendants' case as pleaded in particular paragraphs of their Defence. The orders were not structured to permit the plaintiffs a final opportunity to present material which could reasonably have been adduced as part of the first tranche of expert evidence, nor to present a new case or line of analysis.
11. Further, to the extent to which the orders might have permitted the plaintiffs the opportunity to present expert evidence containing a reasoned analysis in response to Mr Meredith's 'Conceptual Loss Report', the latest reports as filed do not do that. Rather, the new reports, as filed in mid-May 2025, present fresh material or a fresh case.

1. The third issue to address is whether the case which emerges from the new reports, specifically the Second Conoulty Report, travels beyond the presently pleaded case. In my view, it does, despite the plaintiffs' insistence that its case has not changed. This is readily apparent from the pleadings analysis I have undertaken above in these reasons, and confirmed by the absence of any development or explication of this case in the plaintiffs' written opening.
2. In the Second Conoulty Report, Ms Conoulty has calculated the net cashflows that would have been earned by the Yabulu Refinery business between 18 January 2016 and 30 June 2024, where possible using hindsight where information is now available. Ms Conoulty defines this as the 'Counterfactual Cash Flows'. The approach taken by Ms Conoulty, as set out in [5] of her second report, is expressly predicated on instructions given to her by the plaintiffs' solicitors (which are set out it Annexure 1 to the report). On the basis of those instructions, the calculations undertaken by Ms Conoulty as to the total discounted loss including interest, being an after tax lump sum, is $795m (at [61]).
3. This analysis may, or may not, be appropriate in all the circumstances. I am not presently called upon to make that assessment, which can only be undertaken after trial.
4. What is plain, however, is that the above analysis is not consistent with the pleaded case presented by the plaintiffs at [48] of the 7ASOC and as explained at [122] of the plaintiffs opening trial submissions. The loss case as pleaded is anchored to the valuation of the Yabulu Refinery business or Mr Palmer's shares. The case presented in the Second Conoulty Report is quite different, and would make it unnecessary to compare the valuations set out by Ms Conoulty in her first report and the valuation adopted by Mr Birkett.
5. I will need to hear further from the parties as to the effect of this conclusion on the running of the trial, and the manner in which the plaintiffs propose to present their case at trial, bearing in mind the submissions advanced in the plaintiffs' supplementary submissions at [10] to [13].
6. In contrast, I do not consider that the Second McCallum Report raises issues beyond the pleaded case and, in this respect, I accept the plaintiffs' submission set out in their supplementary submissions at [8].

1. I will hear from the parties as to the further directions which should now be made as a result of these reasons. I should also emphasise the following matters:

(a) These reasons concern whether there has been compliance with the orders of the Court made on 15 January 2025, and examine the breadth of those orders and the scope of the expert evidence which has been filed. These reasons do not address the merits of the expert opinions which have been expressed to date by the various experts who have been engaged by the parties. Further, the conclusions I have reached contain no criticism of the experts involved, who have prepared expert reports in accordance with their instructions.

(b) I do not accept the plaintiffs' contention that this issue has been raised by the defendants as a 'stalking horse' for an adjournment.[46] The issue raised by the defendants not only has substance; I consider the defendants' contention as to the effect of the Court's orders is correct.

[1] The parties are not presently able to define with precision the questions, fact and assumptions for the purposes of conferral or to brief independent experts. The plaintiffs will be better placed to do so after filing of their lay evidence. The defendants will be better placed to do so after the plaintiffs have completed discovery.

[2] The topics and subject matters may be subject to amendment once the plaintiffs' lay evidence is filed and discovery is completed.

Proposed topic or subject matter of expert evidence

(a) Identification of accounting standards and other requirements applicable to the 2015 Financial Statements.

(b) Application of those standards and requirements to preparation and audit of the 2015 Financial Statements.

(c) The way in which matters were reported in the 2015 Financial Statements.

(d) Use which can made of documents like the 2015 Financial Statements.

Valuation / Commodities Markets / Capital Markets / Metallurgical Operations

(a) Characteristics of the market for metallurgical assets.

(b) Characteristics of the enterprise conducted by QNI, including history and operations which impact value.

(c) Appropriate methodologies for valuation of the Palmer Shareholding and for the assessment of the plaintiffs' alleged loss.

(d) Value of Palmer Shareholding at relevant points in time, including:

(i) as a going concern on the basis QNI was not placed into voluntary administration (as at a specific date for valuation);

(ii) immediately after QNI was placed into voluntary administration;

(iii) upon cessation of the Joint Venture business (as at a specified date for valuation);

as well as relevant inputs for determining such value.

(e) Saleability of the Yabulu Refinery and/or the Palmer Shareholding from March 2016, including usual steps and timeframes involved in sale process and factors influencing saleability and sale price.

(a) Financial position of QNI had Royalty Component B been paid in accordance with the MRSLAs and Mineralogy provided funds to QNI, including sufficiency of Royalty Component B to meet QNI's funding requirements.

(b) Practices of the insolvency industry when operator of going concern experiences periodic cash flow deficit.

(c) Advice that competent and careful insolvency practitioner would have given to QNI if QNI was otherwise experiencing cashflow deficit in managing and operating the Joint Venture business.

(a) Analysis of the Joint Venture's historic and forecast financial performance and financial position, including as to management of working capital.

(b) Analysis of capacity of Palmer and/or Palmer related entities to fund or procure funding for QNI in the absence of payment of Royalty Component B.

(c) Analysis of Joint Venture liabilities to be met upon the Yabulu Refinery ceasing to operate.

(a) Valuation and finance evidence connected with topic 3(e), including:

(i) valuation of the assets listed in Schedules 2 and 3 of the Defence;

(ii) lending parameters in connection with those assets.

[Note: The scope of this aspect of the proposed expert evidence depends upon what is revealed in further discovery from the plaintiffs]

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

[1] Order 5 of the orders made on 15 January 2025 (Folio 383).

[2] Folio 472, being the Second McCallum Report dated 13 May 2025; and Folio 473, being the Second Conoulty Report dated 13 May 2025).

[3] Folio 405, being the First McCallum Report dated 14 February 2025, but filed on 20 February 2025); and Folio 406, being the First Conoulty Report dated 14 February 2025, but filed on 20 February 2025).

[4] Folio 433 (Accounting Report dated 14 April 2025), Folio 441 (Critique of Birkett Report dated 18 April 2025), Folio 442 (Conceptual Loss Report dated 18 April 2025), and Folio 446 (Critique of Conoulty Report dated 23 April 2025).

[7] Palmer v CITIC Ltd [No 13] [2024] WASC 325.

[8] Which is the Royalty Component B payment: 7ASOC, [25].

[9] Which is the Mining Right and Site Lease Agreement: 7ASOC, [12].

[11] Plaintiffs' opening trial submissions dated 4 May 2025 [14].

[12] Plaintiffs' opening trial submissions dated 4 May 2025 [122].

[15] Additional expert evidence orders were made (which have not been extracted in these reasons) as to the content of the reports and the process for objections to be filed and then determined. The objections have not yet been heard or determined by the Court.

[16] Orders made 8 May 2025, order 10 (Folio 471).

[17] The topic at 2(e) (as to the saleability of the Yabulu Refinery and/or the Palmer Shareholding from March 2016) has fallen away given the plaintiffs' decision not to press the alternative loss case in [49A] of the 7ASOC.

[18] Plaintiffs' opening trial submissions dated 4 May 2025 [94].

[19] First Conoulty Report [25] and [105].

[20] First Conoulty Report [26] and [106].

[24] Mr Meredith defines this method as the method of 'quantifying the plaintiffs' alleged loss, being the alleged diminution in value of the Refinery, as the difference between: (a) the value of the Joint Venture business as purportedly quantified in the Conoulty Report; and (b) the value of the Joint Venture business as purportedly quantified in the Birkett Report.' (see pg VI of the Conceptual Loss Report).

[28] Plaintiffs' supplementary submissions dated 22 May 2025 [14] - [16].

[35] Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175.

[37] Plaintiffs' supplementary submissions dated 22 May 2025 [10] - [12].

[38] Plaintiffs' skeleton of argument dated 20 May 2025 [2] (Folio 483).

[39] Plaintiffs' skeleton of argument dated 20 May 2025 [6] (Folio 483).

[40] Plaintiffs' skeleton of argument dated 20 May 2025 [8] - [12] (Folio 483).

[41] Affidavit of Ms Tania Cini sworn 20 May 2025, [25].

[42] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 12] [2025] WASC 154.

[43] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [No 2] [2023] WASC 108 (Quinlan CJ, Beech and Vaughan JJA).

[44] WA Glass Pty Ltd v Auto Control Systems Pty Ltd [No 4] [2023] WASCA 154 [66] - [67].

[45] In this Court, there have been cases where the question whether expert evidence is properly responsive has arisen, although each case is largely driven by the particular facts before the Court and the nature of the expert evidence involved. For example, I refer to the decision of Roberts-Smith J in Trandos v Western Australian Planning Commission [2002] WASC 37 [34] - [36] and the decision of the Full Court in Western Australian Planning Commission v Ryan Nominees Pty Ltd [2003] WASCA 135 (McKechnie and Barker JJ).