PALMER -v- CITIC LTD [No 17] [2025] WASC 224 (9 June 2025)

1. Such further or other orders as the Court deems fit
2. The application has been filed in conjunction with a subpoena directed to Mr Jaski to require that he attend to give evidence at trial.[3] The application is supported by the affidavit of Ms Tracy Robinson, the solicitor with the conduct of the matter for the Palmer Parties, sworn on 2 June 2025,[4] and is explained in the outline of submissions of the plaintiffs dated 2 June 2025.[5]
3. The application and subpoena were both filed in the wake of the Court's rulings on 29 May 2025 concerning the admissibility of the report prepared by Mr Jaski (the Jaski Report)[6] and the expert report of Mr Scott Birkett (the Birkett Report).[7]
4. Those rulings were to the effect that the Jaski Report was not a 'business record' for the purposes of s 79B and s 79C(2a) of the Evidence Act 1906 (WA) and in any event, the tender of the report should be rejected pursuant to s 79C(6)(b) or should not be received unless Mr Jaski is called as a witness pursuant to s 79C(2b). The Court also ruled that the entirety of the Birkett Report should be excluded given its reliance on the opinions expressed within the Jaski Report. At that stage of the proceedings, the plaintiffs had not intended to call Mr Jaski at trial. That position has now changed.
5. The reasons for those earlier rulings were provided to the parties on 2 June and formally published on 3 June: Palmer v CITIC Ltd [No 16].[8]
6. The plaintiffs' application is strongly opposed by the defendants, the CITIC Parties. Those parties filed affidavits in opposition sworn by a partner of the firm representing the defendants, Ms Tania Cini,[9] together with an outline of submissions dated 3 June.[10]
7. The application was heard for directions only on the morning of 3 June, at which time directions were made for the filing of additional documents and to require further conferral between the parties, with the matter adjourned to a substantive hearing on 5 June.
8. At the substantive hearing, the parties addressed the Court as to:

(a) whether the subpoena directed to Mr Jaski should be issued;

(b) whether the Jaski Report could be tendered pursuant to s 79C(1) of the Evidence Act 1906 (WA) (an issue which was not addressed at the earlier hearings in April and May, which is apparent from the reasons as a whole and from footnote 20 thereof);

(c) whether, in the alternative, the trial of part of the quantum aspect of the action should be adjourned, for example to permit the plaintiffs to prepare and file further expert evidence on the value of the Yabulu Refinery in a non-going concern context; and

(d) the approach the Court should adopt to the management of the trial from this point forwards, noting that agreement was reached on 4 June following further conferral between the parties as to the timing of Mr Wolfe's evidence being given and other aspects of the trial plan.[11]

1. At the conclusion of the hearing on 5 June, I reserved my decision through until 1.00pm on Friday, 6 June. Shortly before that resumed hearing, I received further substantive material from both parties without leave, which I have noted in these reasons but which I have not found to be determinative.

1. At the hearing on 6 June, I informed the parties that I proposed to make orders to give effect to the approach set out below, subject to hearing further from the parties as to these orders at the commencement of the trial on 9 June:

1. The plaintiffs' application to rely upon parts of the Jaski Report, and parts of his covering affidavit, would be allowed, to permit tender pursuant to s 79C(1). The tender would be confined to specific and identified portion of the affidavit and the Jaski Report, namely:

(a) [1]-[7] of the affidavit;
>
> (b) [1], [2]-[8], [9]-[12], [21]-[30], [40]-[59], [60]-[88], [113]-[140], [254]-[274] and [285] of the Jaski Report; and
>
> (c) Appendices A, B, C, D, E and N of the Jaski Report.

1. In accordance with the procedure proposed by the plaintiffs, no further substantive evidence in chief would be permitted to be led from Mr Jaski when he is called to give evidence. Mr Jaski would be subject to cross-examination and re-examination in the usual manner. 2. Leave would be granted to have a subpoena, in the terms of the subpoena which was filed by the plaintiffs on 30 May, issued to Mr Jaski.[12] 3. The defendants' expert, Mr Meredith, would be allowed an opportunity to file a further responsive report in relation to the Jaski Report. 4. The plaintiffs would be required to further particularise their claim for damages as pleaded in the 7ASOC at [48(i), (ii) and (iv)] including references to the expert evidence and the material in the Jaski Report which is to be relied upon in support of the claim. 5. To accommodate the timing implications of the above, the trial of the action would be conducted in two phases. 6. The first phase, commencing on 9 June, will hear all matters other than the evidence of Mr Jaski and the expert evidence of Mr Meredith as to the non-going concern value of the Yabulu Refinery as pleaded in the 7ASOC at [48(iv)] (and as pleaded in the Amended Substituted Defence at [48]) (which I will refer to as the Non-Going Concern Evidence) and the parties' closing addresses. 7. The second phase of the trial, to be heard over 5 hearing days commencing after the first phase of the trial is concluded, on dates to be fixed, will hear the Non-Going Concern Evidence and the parties' closing addresses. The commencement date for the second phase of the trial would be fixed once the availability of witnesses was confirmed by the parties, and once the timing of the further expert report of Mr Meredith had been determined. 8. The evidence of Mr Jaski and Mr Meredith at the second phase of the trial will be given separately and not concurrently. There shall not be an expert conference between Mr Jaski and Mr Meredith. 9. To the extent necessary, the Court would hear any application for subpoenas to be issued to third parties for the production of documents relating to the Jaski Report, bearing in mind the defendants' concerns as to document production and it being apparent to the Court, on the available evidence, that the plaintiffs do not have possession of the documents which are sought.
2. These are my brief reasons for concluding that the above approach was appropriate in the circumstances. These reasons should be read together with the reasons referred to above, namely Palmer v CITIC Ltd [No 16].

C. Analysis and disposition (1) The plaintiffs wish to mend their evidentiary hand

1. The Palmer Parties referred the Court to the observations of the plurality of the High Court in Dasreef Pty Ltd v Hawchar[13] concerning the importance of trial judges' ruling on objections as soon as possible. An evident reason for this approach, which the plaintiffs emphasised as a central aspect of their position on this application, is to permit the party which has tendered the disputed evidence to know whether it must try to 'mend its hand' following an adverse result on the tender. Further, the opposite parties will know the evidence they must answer.
2. In Dasreef, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ held as follows:[14]

[19] At the end of the voir dire the primary judge did not rule on the admissibility of Dr Basden's evidence. As a result, Mr Hawchar, as plaintiff, did not know what evidence led in support of his claim had been found by the primary judge to be admissible. And Dasreef, as defendant, did not know, before it decided what if any evidence it should call, what was the evidence that it had to meet. That result is unsatisfactory. As a general rule, trial judges confronted with an objection to admissibility of evidence should rule upon that objection as soon as possible. Often the ruling can and should be given immediately after the objection has been made and argued. If, for some pressing reason, that cannot be done, the ruling should ordinarily be given before the party who tenders the disputed evidence closes its case. That party will then know whether it must try to mend its hand, and opposite parties will know the evidence they must answer. (emphasis added)

[20] It is only for very good reason that a trial judge should defer ruling on the admissibility of evidence until judgment. This was not such a case. Yet the primary judge did defer ruling on the disputed evidence in this matter until judgment...

1. In the present case, consistent with the above approach, the Court gave rulings on the admissibility of Mr Jaski's Report prior to the commencement of trial. As earlier noted, the ruling, in response to the proposed tender pursuant to the 'business record' provision in s 79C(2a), was adverse to the Palmer Parties. Senior counsel for the Palmer Parties now wishes to mend his clients' hand, and to seek admission of the Jaski Report through another means, namely s 79C(1). That is, an alternative mode of proof is now relied upon.
2. It is most unfortunate that this alternative method of admission was not raised during the earlier hearings. The Court's frustration in this regard was conveyed to the plaintiffs at the hearing on 3 June. All bases for admission of evidence should ordinarily be advanced by a party when objection is taken.
3. Ultimately, however, I adopted the view that the plaintiffs' decision to pursue admission through a different method of proof, in respect of the same evidentiary material, was in the interests of justice and ought be heard. That, of course, did not mean the Court was bound to allow the plaintiffs to 'mend their hand'. Questions of compliance with the orders of the Court, case management procedure, relative prejudice to the parties, cost and delay must all feature in that analysis.
4. As to whether the tender of the Jaski Report should be allowed, a number of issues were raised by the parties. The plaintiffs maintained that, in the event the terms of s 79C(1) were satisfied, and subject to any discretionary rejection of the tender, the Court should permit the plaintiffs to rely on this method of proof. The plaintiffs emphasised that the Jaski Report had been expressly relied upon by the plaintiffs since the filing of their amended statement of claim on 23 April 2024 and a copy has been in the possession of the defendants since at least soon after that amended pleading was filed.

1. I will return to the pleadings in a moment. First, I should record the principal matters identified by the defendants concerning the asserted late tender of the Jaski Report and the failure to comply with the expert evidence regime ordered by the Court.
2. The defendants pointed to the Court's reasons in November 2023, in which the importance of Mineralogy expediting the preparation of its evidence was noted:[15]

I do not propose to supplement this grant of leave with the additional orders proposed by the CITIC Parties, to require evidence to also be filed. However, it seems to me the Mineralogy Parties, if they have not done so, ought to expedite the preparation of their lay evidence and expert evidence to ensure the case can move more rapidly from this juncture to trial. Given the seniority of counsel for the plaintiffs and the evident size of the legal team which has been engaged, and the stated desire of the Mineralogy Parties to secure trial dates, I reasonably expect that such an exhortation from this court is probably unnecessary.

1. Further, at a hearing on 25 September 2024, when making orders relating to the preparation of expert evidence, the Court foreshadowed having the matter return in the leadup to Christmas to make further orders, and stated:[16]

The parties would need to work on the basis that all good preparation needs to continue for their cases, so that, whatever the court might order at that point, both parties are ready to file their evidence at the earliest possible time. And on Mr Dharmananda's minute, that would be mid-February.

1. The defendants also reminded the Court of the events which had transpired in December 2024, including the pre-Christmas hearing held on 18 December, concerning the expert evidence regime. At that hearing, the plaintiffs had sought to extend the proposed date for filing of expert evidence, being a request not supported by any affidavit evidence.
2. In considering, and rejecting that request, I made the following observations:[17]

In this court, it has been a long time since judges had to deal with disputes as to whether a 14-day extension should be granted or not granted. These matters are often dealt with by the parties or dealt with through the conferral process. But this is a particularly pointy proposition because it is 14 days at the critical time of the preparation of a case for a trial, which, as I have obviously said on a number of occasions, and to be frank, I don't think I could have made any further exhortation to the parties than I have done over the time to prepare this case in good time.

So in those circumstances, although an affidavit is not ordinarily required, where it is a material extension that is being sought that is opposed, it would certainly be the practice in this court for affidavit evidence to be put on to identify the expert in question, to identify the difficulties they have, and to identify any other matters in support, so that there is a basis to ground the exercise of discretion. So at the moment, there is not a lot for me to work with here, I am afraid, absent some greater, as Mr Dharmananda says, some greater explication of the basis for this.

...whatever has been done in the past, if I may offer this observation, really can't be used as a benchmark for the practice that ought to be adopted over the next four to five months. Because we now are very much at the pointy end of this. And every delay will have far more serious ramifications.

1. One particular criticism levelled at the plaintiffs was their failure, in their reliance on the Jaski Report, to adduce that material in compliance with the expert evidence orders made by the Court on 15 January 2025. Those orders are extracted in my earlier reasons. Rather, it was the Birkett Report (not the Jaski Report) which was filed by the plaintiffs pursuant to that regime.
2. The defendants submitted that the plaintiffs could not now seek to tender the Jaski Report through s 79C(1) in a manner which was inconsistent with the expert evidence regime ordered by the Court pursuant to O 36A of the Rules of the Supreme Court 1971 (WA) (RSC), and inconsistent with the requirements of the Practice Directions of this Court, specifically PD 4.5.2.
3. The importance of this Court's expert evidence practice directions, and the need for parties to comply with any expert evidence regime ordered by the Court, cannot be gainsaid.
4. The purpose of using expert evidence is for the Court to receive the benefit of the objective and impartial assessment of an issue from a witness with specialised knowledge. The Court is often assisted by expert evidence where the subject matter of the proceedings is complex.[18]
5. As correctly submitted by the defendants, expert evidence is admissible to assist the court in matters which require specialist knowledge.[19] Experts must be impartial and a court is not obliged to accept expert evidence.[20] Relevant to the Court's assessment of whether to admit expert evidence must be whether it will assist the court.
6. Further, the court does not grant leave to adduce expert evidence at large. Parties seeking leave to adduce expert evidence should provide some identification of the issues upon which the expert will be asked to give evidence, the field of expertise of each proposed expert and whether it is an appropriate case for the experts to be given agreed facts, a list of agreed questions and assumptions upon which the expert is asked to rely.[21]
7. There are procedural requirements for the preparation of expert reports, as well, and the important requirement for every expert witness giving evidence to the Court to comply with the Harmonised Expert Witness Code of Conduct.[22]
8. The defendants submitted that:[23]

The plaintiffs' predicament is the result of their own forensic choices, made over a significant period, during the preparation of their case. Despite framing this application as one concerning the ruling about the Jaski Report, in truth their predicament results from deficiencies in the report of Mr Birkett dated 20 February 2025 that could have been avoided if the report had not been rushed. This is a matter that the plaintiffs still have not explained. The plaintiffs must have a fair opportunity to advance their case, but a fair opportunity is not boundless. Procedural fairness means fairness to all parties. The principles enunciated in Aon require that the matter proceed in accordance with the existing trial orders. The defendants are faced with a significant claim to defend; they ought not be prejudiced in the preparation and conduct of their defence by the plaintiffs' attempt to introduce new evidence on the eve of the trial.

1. The point made about the apparent lateness or rushed nature of the Birkett Report is one I have commented on previously. It has not been fully explained by the plaintiffs. Ultimately, I think the lack of that explanation would assume greater importance if the plaintiffs had now sought to adduce evidence of a fresh, replacement report in the place of Mr Birkett's work. That is not what they are seeking to do. The plaintiffs now seek to tender a document which they expressly pleaded some time ago. In those circumstances, a full explication of the delays around the Birkett Report does not loom as critical in the analysis, in my view.

1. The defendants have been on notice of the plaintiffs' intention to rely on the Jaski Report for some time. Indeed, consistently over the period from April 2024 to the present, the plaintiffs have signalled this intention.
2. This first became evident from the 7ASOC filed by the plaintiffs in April 2024, which relevantly pleads as follows (see sub-par (iv) below):

[48] As a consequence of the matters alleged in paragraph 45 to 47 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) The Financial Reports did not ascribe a value to the tailings in the Yabulu Refinery tailings dam.

(iv) As at March 2018, tThe Plaintiffs' best estimate of the value of the Yabulu Refinery (not considering the tailings in the Yabulu Refinery tailings dam) 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.

1. It may be accepted that the pleading did not identify the specific portions of the Jaski Report which were relied upon by the plaintiffs, there being discrete portions of that report in the sense of different approaches to valuation. The plaintiffs rely, for present purposes, only on those parts of the report which contain facts and express opinions as to the asset realisable value of the Yabulu Refinery as at 31 August 2017. The plaintiffs do not rely on the aspects of the report which pertain to the assessment of the market value of the refinery.[24]
2. Within the portions of the Jaski Report as to asset realisable value, Mr Jaski expresses opinions as to the appropriate approach, in his view, to value the assets on a going concern basis, and then the manner to value those assets when being realised in a receivership or liquidation. Mr Jaski identifies various discounts to be applied against the written down value of the assets, in this regard.[25]
3. Further, the Jaski Report was expressly identified by the plaintiffs in the witness statement of Mr Daren Wolfe filed on 24 December 2024.[26] This witness statement has been amended since that time, but the references therein to the Jaski Report have remain unchanged.
4. It is also to be noted that the plaintiffs' reliance on the Jaski Report was reinforced by their filing of the Birkett Report on 20 February 2025, which I have ruled as being inadmissible. Nonetheless, that represented a clear indication the plaintiffs continued to place reliance on the Jaski Report, given the references within the Birkett Report to that earlier report.
5. In April and May 2025, there were several hearings addressing the tender of the Jaski Report by the plaintiffs.
6. It cannot be doubted that the plaintiffs have been forcefully pursuing the tender of the Jaski Report over this period. The Jaski Report is not new.

1. The defendants submit that Mr Jaski is being called by the plaintiffs as, in effect, an expert witness. That may only be done with the Court's leave and pursuant to the regime which has been ordered. The Court gave that leave in this case subject to orthodox directions, reflecting the Court's established practice in commercial matters, to ensure the evidence would be of assistance to the Court and to afford fairness to both sides.[27]
2. I do not consider the Jaski Report can be characterised as an expert report in the true sense of that term. Let me briefly explain this:
   1. The Jaski Report is valuation report prepared by Mr Jaski in September 2017, based on his physical inspection of the refinery in late August 2017. The present proceedings were in their infancy at that time, having only been commenced in late June 2017.
   2. The Jaski Report was prepared specifically for the purposes of other proceedings in a different Court, being the Supreme Court of Queensland, between entities other than the present parties to this proceeding.
   3. Mr Jaski was engaged by the solicitors for the special purpose liquidators who were appointed upon the Yabulu Refinery entities slipping into liquidation.
   4. Neither of the parties to the present proceeding have engaged or instructed Mr Jaski in relation to the preparation of this report.
3. The Jaski Report is properly characterised as an historical out-of-court statement which was prepared for the purposes of litigation other than the present proceedings, at the request of an entity which is not a party to this proceeding. That is quite different to an expert report in the typical sense. To be clear - Mr Jaski has not been engaged as an expert witness in these proceedings by the plaintiffs' instructing solicitors.
4. I thus accept the submission advanced by the plaintiffs that the Jaski Report is not squarely in the nature of expert evidence that falls within the procedure identified in the Practice Direction or in respect of which orders have been made under O 36A RSC.
5. I view Mr Jaski's report as standing somewhat apart from the ordinary reports of experts engaged by a party for the specific purpose of particular proceedings, although there are similarities. In the latter case, compliance with the expert evidence orders made by the Court is important. In the present case, non-compliance with that regime, though relevant in an indirect sense to prejudice and the exercise of the Court's discretion, is not fatal to the plaintiffs' proposal to tender the report pursuant to s 79C(1).
6. The above analysis means it is unnecessary to confront the deeper constructional issue raised by the defendants, relying on authorities such as TPC v TNT Management Pty Ltd[28] and Mansour v Standard Telephones & Cables Pty Ltd.[29] Those are examples of cases in which the tender of documentary material and reports under the New South Wales and Commonwealth Evidence Act provisions was in dispute. They merely demonstrate the possibility that a failure to comply with specific procedures of the Court, or rules of the Court, may impact the ability of a party to tender material through the provisions of the Evidence Act, particularly where that would circumvent or undermine the Court-based procedures or rules.
7. The defendants concerns as to the unorthodox approach adopted by the plaintiffs, and the change in approach as to whether Mr Jaski would be called to give evidence, have some substance. But those concerns ultimately do not trump the plaintiffs' ability to adduce in evidence a document which they have long since expressly identified as a pleaded part of their case.

1. The defendants challenged the relevance of the Jaski Report on the basis that it focuses on a date of valuation which is different to the pleaded valuation date.
2. The report is to be tendered by the plaintiffs to adduce evidence as to Mr Jaski's assessment of the value of the Yabulu Refinery at a certain point in time, having regard to his observations of the refinery in August 2017 when he attended the site, and based on his opinion as to the appropriate method of valuation.
3. While the date of his valuation is different to the valuation date pleaded, there are sufficiently proximate in time to preclude an interlocutory determination on my part that the Jaski Report is wholly irrelevant to the matters in issue.
4. I accept the plaintiffs ought have the opportunity, once all evidence is adduced at trial, to persuade the Court that the valuation in the Jaski Report as at 31 August 2017 is relevant to the valuation task the Court will be required to undertake, to assess the plaintiffs' loss and damage as at 18 January 2016.

(6) Section 79C(1)

1. I have set out the text of s 79C(1) in my earlier reasons, together with the definition of 'qualified person' in s 79B. I accept that Mr Jaski is a 'qualified person' in the sense that he was at the time of making of the statements in the report, an expert on the subject of those statements: see par (b) of the definition.
2. Further, I consider the plaintiffs have demonstrated that the statements of fact and expressions of opinion in the Jaski Report upon which they intend to rely are statements which tend to establish facts or opinions which would be admissible in the proceedings, for the purposes of s 79C(1). That sub-section is subject to s 79C(2), but that will be satisfied here because it is intended that a subpoena be issued for Mr Jaski be called as a witness.
3. It is unnecessary that I express a view as to whether the presence of the Court's rules as to expert evidence, in O 36A RSC, and the Court's express power to make orders with respect to the filing of expert evidence, operate to preclude reliance on the regime in s 79C(1). The parties made submissions in this regard, including the provision of late submissions on the morning of 6 June shortly before the resumed hearing.
4. For my part, the issue is resolved once I characterise the Jaski Report, which characterisation I consider to be appropriate, as an historical out-of-court statement rather than an expert report in the sense identified in O 36A RSC. Certainly, there are expressions of opinion contained within the Jaski Report and, indeed, it is relied upon by the plaintiffs to adduce those opinions. However, Mr Jaski stands in a different position to that of Mr Meredith, for example, who has been specifically engaged by the defendants' solicitors in this litigation, to prepare reports on instructions, as to specific questions.
5. For these reasons, I consider the Court should accept the tender of the Jaski Report pursuant to s 79C(1), notwithstanding any non-compliance with the expert evidence regime ordered by the Court on 15 January 2025 and subject to considering the defendants' contentions as to discretionary rejection under s 79C(6).
6. I dealt with the operation of s 79C(6) in my earlier reasons (at [71]). A significant theme in my analysis was the decision by the plaintiffs not to call Mr Jaski. I concluded the report should not be received unless Mr Jaski was called at trial. The plaintiffs have altered their position in this regard, as earlier noted. The defendants will now have the opportunity to cross-examine Mr Jaski in the usual way, which sufficiently removes the prejudice I had earlier identified.
7. On the approach now proposed by the plaintiffs, with Mr Jaski to be called, I would not exercise the discretion to reject tender pursuant to s 79C(6) by reason of the undue consumption of time, the creation of undue prejudice or because of any confusion of the issues, as part of a weighing process against the probative value of the document.

(7) Ameliorating any further prejudice likely to arise

1. In order to ameliorate any prejudice to the defendants arising from Mr Jaski being called and his report being tendered, I accept the appropriateness of allowing Mr Meredith to prepare a responsive report in this regard. That said, Mr Meredith's present report entitled 'Critique of the Birkett Report', incorporates responses to both Mr Jaski and Mr Birkett's reports. It is therefore not the case that the defendants have, to this date, had no opportunity to respond to the material and opinions contained in the Jaski Report. They have.[30] But to allow for the circumstance that Mr Meredith did not fully engage with the substance of the Jaski Report, he should be afforded an opportunity to respond.
2. In my view, in the circumstances of this case, the making of a series of case management directions,[31] including to allow a further expert report to be filed by Mr Meredith (should the defendants wish to do so), will ameliorate to a significant extent any prejudice likely to be suffered by the defendants, bearing in mind, of course, the defendants have been on notice of the defendants' intention to rely on the Jaski Report for some considerable time.
3. I was particularly concerned to avoid a circumstance, to the extent that this could be done through appropriate adjustment of the court's directions and trial timetable, which would prevent the plaintiffs being left in a position where the primary evidence on which they have always intended to rely in support of part of their loss and damages claim would be denied to them. The prejudice arising therefrom would be significant, even when it is realised there may be other evidentiary material upon which they could rely at trial to support inferences, as an alternative to the Jaski Report.
4. In weighing up the competing positions of the parties, I of course recognise the importance of the goal and objects in O 1 r 4A and r 4B RSC and the associated statements of principle in Aon Risk Services Australia Ltd v Australian National University.[32] Those matters must necessarily be assessed on a case by case basis.
5. For example, had the plaintiffs' change in approach meant an adjournment of the entirety of the trial, perhaps by reason of the introduction of an entirely new expert report, there must be little doubt on the plaintiffs' part that it would have been rejected by this Court. Similarly, if the defendants had been afforded no prior opportunity to engage with the plaintiffs' material with the assistance of their own expert (which is not the case here, given Mr Meredith has already commented upon the Jaski Report).
6. However, the course of events over the past two weeks, which can be seen in the history recounted in these reasons and in the previous reasons of the Court, provides something of an explanation for the plaintiffs' decision to belatedly invoke s 79C(1) in the shadow of the commencement of the trial. I consider this can be accommodated through a modification of the usual trial process which ensures ultimate finality of the trial in August or September 2025.
7. The trial itself was originally scheduled to run for 8 weeks until the end of August 2025. As the case has narrowed, the parties adjusted the trial plan such that the trial would conclude on or about 27 June 2025. While the two phase approach I propose will potentially see the trial run into September 2025, that delay is not so significant when seen in the context of the initial trial schedule, and when seen in the context of proceedings which have been on foot since 2017, between well-resourced commercial parties.

1. Ordinarily where experts are engaged by the parties in the same field of expertise it would be usual for there to be an opportunity for conferral between experts 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. I mentioned this point in my earlier reasons (at [71(f)]. The Court would also have experts give their evidence concurrently at trial.
2. I do not consider these approaches are appropriate in the case of Mr Jaski. I say that for these reasons:
   1. There is evidence before me, adduced at the hearing on 3 June by the defendants, that Mr Palmer previously levelled a number of direct attacks concerning Mr Jaski and the contents of his report, during the course of the proceedings in the Supreme Court of Queensland. Those attacks are identified in the affidavit of Mr Palmer sworn on 12 September 2017, which was filed in that earlier proceeding.[33] It will not assist matters to repeat those allegations here, and nor did I detect any enthusiasm from senior counsel for the plaintiffs to repeat them in this proceeding. Indeed, it seems to be no part of the plaintiffs' approach to impeach the credit of a specialised expert witness they are seeking to call in order to adduce evidence in support of an integer for their own loss and damage claim. That would be highly counter-productive. Nonetheless, these matters strongly militate in favour of Mr Jaski being called as a witness in the usual way, without conferral prior to trial and not in a concurrent session at trial.
   2. Mr Jaski will be brought to the Court through the issue of a subpoena. It is unclear whether the Court has power to compel such a witness to engage in a conferral with an expert appointed by another party, and then to produce a joint expert report.
   3. Mr Jaski has not been engaged or instructed by either party and his report was not prepared for the purposes of these proceedings. The parties do not have any control over Mr Jaski other than through obtaining a subpoena to compel his attendance.
3. Accordingly, in my view, Mr Jaski ought not be made subject to the conferral regime. Mr Jaski should be called as a witness under subpoena in the usual manner, and give his evidence separately to that of Mr Meredith, not concurrently.
4. The circumstances are simply not conducive to an approach whereby Mr Jaski and Mr Meredith would independently confer regarding their evidence and then sit together in court to give their evidence concurrently. The approach I propose is consistent with the characterisation of Mr Jaski's report in these reasons at [42] above.

1. To recognise the time which will be needed for Mr Meredith to prepare a further responsive report, I have determined that the trial will be conducted in two phases, although the adjournment between them should not be overly lengthy.
2. There is an overlap between this action and the 2023 MCP Proceeding (CIV 2336 of 2023), given the matters pleaded in, at least, [1(d)] of the defence filed by Mineralogy in the 2023 MCP Proceeding. The scope of that overlap has decreased somewhat through a narrowing of the plaintiffs' position. But the proceedings remain connected. Given the overlap remains in existence it remains important that present proceedings do not drag on much further, although I accept that the initial degree of urgency associated with the determination of the 2023 MCP Proceeding has abated somewhat following the joint submission of the MCPs to the State Government on or around 5 May 2025
3. The delay between the two phases of the trial is not in the nature of a formal split or bifurcation pursuant to O 32 r 4 or r 5 RSC. The formal splitting of the trial has previously been the subject of consideration in this proceeding. By way of historical digression, I note that orders were made by Kenneth Martin J on 14 September 2020 to split the quantum issues, so that they would be tried separately.
4. Then, some years later, the CITIC Parties sought to unify the issues in the action and in effect undo the separate trial orders previously made, a position to which the Mineralogy Parties ultimately consented. I made orders to unify the matters for trial in each action: see Palmer v CITIC Ltd [No 9].[34] Then, in August 2024, the plaintiffs sought orders to fragment the case into liability and quantum. I rejected that approach.[35]
5. The approach I propose to adopt is that there be one trial of the action, conducted in two phases, with several weeks' adjournment in between the phases, as explained earlier in these reasons. The parties would not be required to present closing addresses until the conclusion of the second phase of the trial. There will be only one set of reasons to be issued by the Court in respect of all matters in the action.

1. For the foregoing reasons, I favoured the approach set out in the first order sought by the plaintiffs in the chamber summons, together with the fashioning of a number of additional orders to ameliorate the likely prejudice identified by the defendants (as summarised at [10] above). This approach achieves a balancing of the various interests, with the aim of securing a fair trial for the parties, even if it is not a perfect one.
2. To be clear, the regime I propose to order will not permit the plaintiffs to file additional expert evidence beyond the evidence which is contained in the Jaski Report (and the reports of Ms Conoulty and Ms McCallum), being a report which is expressly pleaded in the plaintiff's' statement of claim. The Jaski Report may be tendered pursuant to s 79C(1), but only to the extent proposed by the plaintiffs' in their proposal provided to the Court on 4 June in par 1 thereof.
3. I will hear from the parties further as to the final orders which should be made to reflect these reasons, bearing in mind that I provided the parties with a set of draft orders on 6 June.

1. By reason of further conferral between the parties following the provision of orders to the parties on 6 June, the parties agreed orders to the effect, inter alia, that Mr Jaski would not be cross-examined, the plaintiffs would not read the Birkett Critique Report prepared by Mr Meredith dated 18 April 2025, and the plaintiffs would not cross-examine Mr Meredith as to the Jaski Affidavit, the Jaski Report or the Birkett Critique Report.
2. The approach proposed by the parties, which I was content to accept, will obviate the need for a second phase of the trial as foreshadowed in these reasons. The final orders made by the Court on 9 June are set out in Attachment A to these reasons.

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

[1] Chamber summons dated 2 June 2025 (Folio 499).

[2] References in these reasons to legislative provisions are to the Evidence Act 1906 (WA), unless otherwise stated.

[6] Being the expert valuation report of Mr Campbell Jaski dated 8 September 2017, which was filed in proceedings in the Supreme Court of Queensland between the special purpose liquidators of Queensland Nickel Pty Ltd and QNI Metals Pty Ltd (being Proceeding No. BS 6593/17).

[7] Being the expert report of Mr Scott Birkett dated 20 February 2025, which was prepared for the purposes of the present action and which relied on the opinions expressed in the Jaski Report.

[8] Palmer v CITIC Ltd [No 16] [2025] WASC 216.

[9] Folio 505 and Folio 509 (dated 3 and 5 June 2025). There were objections to the first affidavit of Ms Cini which I have considered as part of these reasons, and which I will disallow.

[11] Email from the plaintiffs' solicitors sent on 4 June 2025 updating the Court as to the outcome of the conferral ordered by the Court on 3 June 2025; Email from the plaintiffs' solicitors sent on 5 June 2025 providing the Court with an updated Trial Plan.

[15] Palmer v CITIC Ltd [No 10] [2023] WASC 417 [84].

[16] ts 1147 - 1148 (25 September 2024).

[17] ts 1230 - 1231 (18 December 2024).

[19] Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486, 491-492.

[20] Energy Resources Ltd v Cactus Wellhead Australia Pty Ltd [2023] WASC 475 [39].

[24] For example, [11] - [20] of the Jaski Report.

[25] For example, [21] - [30] of the Jaski Report.

[28] TPC v TNT Management Pty Ltd (1984) 56 ALR 647, 704 - 708 (Franki J).

[29] Mansour v Standard Telephones & Cables Pty Ltd [1983] 3 NSWLR 205, 207 - 208 (Hutley JA, with Reynolds and Samuels JJA agreeing).

[30] See, for example, Mr Meredith's report dated 18 April 2025 at [1.4], [2.3], [2.4], [2.5], [4.4], [4.5] and [4.6].

[31] See, by way of analogy only, Phoenix Eagle Company Pty Ltd v Tom McArthur Pty Ltd [No 3] [2020] WASC 272 (Kenneth Martin J).

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

[33] At [26] and [42] of the affidavit. See also DS [12].

[34] Palmer v CITIC Ltd [No 9] [2023] WASC 238.

[35] Palmer v CITIC Ltd [No 12] [2024] WASC 322.