PALMER -v- CITIC LTD [No 4] [2022] WASC 292 (31 August 2022)

- after 18 July 2022. 8. In alignment with the at then ordered timetable that was applicable to both actions, there followed a filing of formal chamber summons stay applications by the CITIC defendants in both actions on 25 March 2022

- seeking a permanent stay or dismissal of both actions, or alternatively, a summary judgment in favour of the CITIC defendants in both actions. 9. Exchanged outlines of written submissions in accord with that 23 March 2022 timetable followed, with a last wave of exchanged submissions being the CITIC defendants' written outlines in reply, of 7 June 2022.

1. The respective interlocutory applications by the CITIC defendants seeking stay or dismissal relief - can be seen to have emerged, essentially, from pleading amendments made to the defences in each action by the CITIC defendants as at 22 October 2021.
2. In particular, by reference to CIV 1267 of 2018 (which I refer to as the 'PP' or 'Palmer Petroleum action'), amendments to the pleaded defence had been added then under the heading 'Anshun and Abuse of Process'. Paragraphs 69 - 73 of the amended defence culminated in pleas under pars 72 and 73, reading:

1. In the circumstances set out in paragraphs 69 to 71 above:

(a) it was unreasonable for Mineralogy not to have made the FCD PP Claims in the RCB Proceeding, including for the purpose of seeking orderly case management directions to preserve the ability of Mineralogy to pursue those claims; and
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> (b) further or alternatively, the prosecution of this proceeding would serve to bring the administration of justice into disrepute or be unduly oppressive to the defendants or both.

1. As a result of the matters set out in paragraph 72 above:

(a) this proceeding should be dismissed as an abuse of process;
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> (b) further or alternatively, Mineralogy is estopped, under the principles in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589, from bringing or maintaining the FCD PP Claims.

3. At the same time, like pleas were added by amendments made to the re‑amended defence and counterclaim of the CITIC defendants pleaded in CIV 2072 of 2017 (the 'QNI action'). See pleas under pars 80 through 87 by reference to those FCD and QNI claims.

1. Notwithstanding those March 2022 timetabling directions programming the hearing in both actions of permanent stay and dismissal arguments by the CITIC defendants, they later became the subject of a mutual agreement reached as between the parties - for such applications to instead be deferred until the hearing of the substantive trials in both actions.
2. That as varied position only emerged at 28 June 2022 - on the court's receipt in both actions of the parties' minute of consent orders for the four‑day pre-trial hearing to not proceed.
3. On 29 June 2022, I duly made those consent orders in both actions - in alignment with what was then sought by the parties under their consent minutes, as submitted in both actions on the previous day.
4. Consequently, the envisaged four-day pre-trial hearing of those applications of the CITIC defendants did not proceed.
5. Instead, in alignment with what the parties also requested, I ordered for both actions that a strategic conference be convened for half a day during the second half of August 2022, in effect, to map out a new path forward to the trials. I further ordered, in alignment with the consent orders as submitted, that:

The defendants' application for a permanent stay or dismissal of the plaintiff's action filed on 25 March 2022 is reserved to the final hearing of the matter, with no order as to costs.

1. At the previous strategic conference on 23 March 2022, I had indicated to the parties that the nature of the stay arguments as then foreshadowed on the CITIC defendants' permanent stay and dismissal applications, would need to be dealt with by another judge. Those as foreshadowed applications were expressed to be grounded upon arguments over what was not argued, but what the CITIC defendants say should have been argued, by Mineralogy within the RCB trial proceeding which was heard before me. In effect, the foreshadowed stay applications carried a consequence of disqualifying me from determining those newly foreshadowed permanent stay and dismissal applications. Previously, I had already dealt with not only the RCB trial itself, but also an earlier and successful permanent stay application by the CITIC defendants against Mineralogy. That permanent stay application also argued on what issues had been jettisoned away from the RCB litigation and the arising ramifications against Mineralogy: see Mineralogy Pty Ltd v Sino Iron Pty Ltd [2020] WASC 40 (delivered 13 February 2020) and later upheld as Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 2] [2021] WASCA 105 (delivered 25 June 2021).
2. The newly foreshadowed stay arguments of the CITIC defendants looked to me to be of a similar character, and it would not be appropriate for me to re-enter those RCB related issues yet again.
3. That disqualification position remains the case concerning the future trials - since the CITIC defendants' stay applications in both actions are only reserved and held over - to be dealt with at the final hearing, rather than removed or dismissed.
4. My likely disqualification, in effect, as the putative trial judge, by reason of those considerations, bears pragmatically on the range of orders that might viably be made at the most recent strategic conference hearing convened between the parties on Friday, 19 August 2022. Essentially, someone else will now need to hear the trials for both actions.

1. Previously, I issued orders separating off, to be dealt with later, if needed, certain damages quantification issues potentially arising in these actions - away from a commencing phase in the joint trials. To that end, see orders one and two of the orders of 14 September 2020 in both actions.
2. In both actions, I had also issued further directions concerning non‑expert evidence (by reference then to an ordered provision of witness outlines). Timetabling orders regulating the giving of discovery by Mineralogy also issued at 31 May 2018 in both actions. Somewhat uniquely, but at the behest of the plaintiffs in both actions, discovery was only ordered to be provided by the plaintiff or plaintiffs and given to the CITIC defendants.
3. At the most recent strategic conference convened on 19 August 2022, there still presented, on my assessment, a strong level of interlocutory disagreement as between the parties - manifested in the distinct contents of their submitted rival minutes of proposed orders and in their rival written submissions as received during the course of 18 August 2022.
4. In brief compass, the August 2022 positions expressed for Mineralogy and Mr Palmer under both actions as plaintiffs is - save for the separated away potential quantification issues which are already ordered to be hived off from the first phase of the joint trials (under my orders of 14 September 2020) - that trial dates ought now be fixed and allocated for the first phases of each trial - heard together. The dates should be some time away - suggesting in July 2023.
5. It is accepted by the plaintiffs that there are still some interlocutory matters to be attended to on both sides before the first trial phases can begin, but these are said to be, in effect, relatively confined.
6. The plaintiffs say that fixing of a six-week joint trial in respect of all issues other than the deferred quantum issues (to be heard later, if necessary) - ought now be set down for a period commencing during July 2023. Presently, fixing trial dates that far away, say the plaintiffs, has been shown to be an effective case management measure in past actions as between these same parties and it would allow more than enough time for all residual interlocutory matters to be completed in the lead up to a trial commencement window.
7. But the fixing of trial dates now - even for a year off - is firmly challenged by the CITIC defendants in both actions. They say that there are still substantial interlocutory issues to be attended to ‑ concerning pleadings, outstanding discovery from Mineralogy or Mr Palmer not yet given and other contentious unresolved interlocutory issues - all of which render it premature presently to be fixing trial dates. This is even on a basis of the long lead up time such as to July 2023 - as is advocated under Mineralogy's minute of proposed orders.
8. As I indicated to the parties at the strategic conference, at this point, particularly where I am now not in a position to be their trial judge for these actions, it is just not feasible, from a resourcing perspective, to commit the court in any event to mid-2023 joint trials of such a duration - involving another inevitable commitment and significant consumption of finite public resources. Resource allocation decisions need to be made elsewhere to that end.
9. I indicated to the parties, however, that I would set some further interlocutory programming directional tasks for them to work at, to complete in the interim - particularly concerning what are still disputed issues around pleadings, discovery and over the exchanging of further first phase trial evidence.
10. The first area to address is the present state of the exchanged pleadings.

1. From the CITIC defendants' perspective, their contention by senior counsel is that they still need to make further amendments to their pleaded defences in both actions ‑ but more particularly in the QNI action, CIV 2072 of 2017. More amendments to the pleaded defence in that action are said to be necessary - in light of a recent completion of outcomes concerning Queensland litigation conducted in a so-called consolidated QNI proceeding (as defined in par 46F of the CITIC defendants' re-amended defence of 22 October 2021 in CIV 2072 of 2017). Essentially, this is litigation identified in the Supreme Court of Queensland and recently resolved, concerning issues relevant to Mineralogy.
2. That required amendment position expressed by the CITIC defendants, as I would assess it, is not unreasonable. Sufficient time ought be allowed in order for the CITIC defendants to amend their defences to those ends. However, they seek until 11 November 2022 under their minute of proposed orders.
3. The counter position expressed by the plaintiffs is that this requested period is just far too long, particularly in circumstances where the plaintiffs say, by senior counsel, that subject to some relatively minor adjustments, their own statement of claim pleadings in both actions are essentially in order or require only minimal changes to be ready for the first phases of the joint trials.

The August 2022 case management disputes are unfolding, of course, in the revised circumstances where the CITIC defendants have deferred to the joint trials their permanent stay and dismissal interlocutory applications. A progression of the plaintiffs' actions generally to a trial resolution was unfortunately delayed over the period after the penultimate strategic conference of 23 March 2022. That delay ensued until 28 June 2022. Essentially, the unproductive three-month hiatus in the progression of the actions to their determinations under first phase trials, was unhelpful. That period of delay, I assess, is attributable to the CITIC defendants and their change of position on their stay applications after the penultimate strategic conference.

1. More potential pleading issues concern pending, but currently unresolved, chamber summons applications in both actions by the CITIC defendants - seeking to strike out what are so-called 'Fulcrum Purposes' pleas - a subject of Mineralogy and Mr Palmer's pleas under their respective amended reply pleading in each action.
2. To that end, I refer to Mr Palmer's 8 April 2022 reply filed in the QNI action (CIV 1267 of 2018) and the Fulcrum Purposes pleas seen under pars 33 through 97 inclusive. There are equivalent to impugned Fulcrum Purposes pleas under pars 37 through 101 made by the plaintiffs in their 8 April 2022 reply filed in the Palmer Petroleum action (CIV 2072 of 2017).
3. At the recent August 2022 strategic conference, it was clarified for the CITIC defendants that their respective minutes of proposed timetabling orders concerning those applications (under proposed orders 10 and 11 thereof), are framed on a basis that they accept that Mineralogy should receive an opportunity to amend the current reply pleadings - in the aftermath of a next round of forthcoming amendments being made soon to the CITIC defendants' defences.
4. The CITIC defendants seek directions that those pending strike out applications, which are directed against the Fulcrum Purposes pleas in the reply pleadings, be discontinued. But any discontinuances would be, in effect, without prejudice to the CITIC defendants likely bringing of fresh and largely equivalently based strike out applications - challenging the same Fulcrum Purposes pleas in the reply pleadings in the future on the same basis if future amended reply pleadings by the plaintiffs still manifest then the same impugned Fulcrum Purposes pleas.
5. So, in effect, what is being sought now is only a deferral of the Fulcrum Purposes plea strike out issue against the reply pleadings - until after the next round of overall pleading amendments, and thereby preserving a Fulcrum Purposes plea challenge right, if the as currently identified (and said to be highly problematic) Fulcrum Purposes pleas are not removed or satisfactorily addressed by Mineralogy and Mr Palmer in the next series of amendments to the reply pleadings.
6. Such a suspended application, challenging Fulcrum Purposes pleas in the reply pleadings, obviously carries some potential to derail the progress to a commencement of first stage trials under settled pleadings.

1. Taking account of senior counsels' verbal submissions at the strategic conference, the parties' rival proposed minutes in both actions and their accompanying written materials filed in support ‑ including, it is noted for the record, an affidavit of Tracey Lyn Robinson sworn 18 August 2022, filed and read on behalf of Mr Palmer and Mineralogy in both actions (of 436 pages) and the affidavit filed and read on behalf of the CITIC defendants of Monisha Maria Sequeira sworn 18 August 2022 (of 104 pages) - case management directions substantially, as seen below, ought be made in both CIV 2072 of 2017 and CIV 1267 of 2018.
2. Such directions will concern, in essence, only the timing of the parties' next wave of pleading amendments in both actions (with leave to so amend now required for further pleading amendments by reason of previous orders to that end).
3. Contrasting the rival positions under the parties' exchanged minutes in CIV 2072 of 2017 (both filed 18 August 2022 and being the plaintiffs' folio 181 and the CITIC defendants' folio 182), it should ultimately be ordered:
   1. Without obligation to do so, all parties have leave at or before the dates indicated below to make further amendments to their current pleadings - subject to a reservation in the parties' positions to object against any such further amendments at not later than 14 days after receipt of an amended pleading.
   2. The plaintiffs may file and serve any further amended statement of claim (their current pleading being a fourth amended statement of claim of 17 July 2018 - folio 62), by 2 September 2022.
   3. The defendants have until 14 October 2022 to file and serve any further re-amended defence pleading (their current defence pleading being a re-amended defence of 22 October 2021 ‑ folio 143).
   4. The plaintiffs may amend their reply pleading by 11 November 2022.
   5. The defendants will have leave to discontinue their present strike‑out application taken against the currently re-amended reply (under their chamber summons filed 29 April 2022

- folio 164), subject to a reservation of rights in respect of Fulcrum Purposes pleas as seen under pars 37 to 101 of the currently pleaded re-amended reply, if those paragraphs persist in a reply pleading post 11 November 2022. 6. Any renewed application of the defendants seeking to strike out pleas under pars 37 through 101 of the re-amended reply (or counterpart like pleas in an amended reply pleading) is to be commenced by chamber summons that is filed and served at not later than by 30 November 2022. 4. Parallel orders with equivalent timelines towards implementing pleading amendments by the parties should issue in the Palmer Petroleum action, CIV 1267 of 2018.

1. In relation to other unresolved interlocutory issues manifesting in August 2022 as between the parties, there is mentioned a disagreement over whether there is any need for the plaintiffs, as the CITIC defendants contend by their minute, to rectify some discovery and legal professional privilege claims - which are challenged.
2. At the strategic conference hearing on 19 August 2022, Mr Dunning QC, for the plaintiffs, indicated that his instructions were that conferral between the parties had, in effect, resolved all existing legal professional privilege claims. But on the part of the CITIC defendants, that privilege claim resolution position, was disputed. The debate, however, did not rise above bare assertion and counter assertion

- due, I would assess, to late exchanges of the parties' proposed rival minutes and the resultant inability to conduct a better level of informal conferral over this issue between the solicitors of record. 3. It is not possible to resolve the present divide over privilege issues on the current material. In the first place, there needs to be a more informed level of conferral to take place as between the parties concerning any residual legal professional privilege claims. 4. Likewise, in respect of an evident disagreement between the parties concerning alleged deficiencies over the content of the discovery currently provided to date (only by the plaintiffs) to the CITIC defendants, there should be a greater and more informed level of conferral about that. 5. Materials put before me also suggest that a recent wave of many further discovered documents has only just been provided by Mineralogy's lawyers to the CITIC defendants' lawyers. Accordingly, greater time for a considered assimilation of that extra discovered material, is required for the CITIC defendants. 6. If conferral is unable to resolve residual discovery issues following, say, a 28‑day period to allow for the assimilation of the recent wave of Mineralogy's and Mr Palmer's discovery, then formal enforcement applications will need to be made to the court in the usual way by the CITIC defendants in such respects. That ought to occur no later than by Monday, 3 October 2022. 7. If such applications over documents do come to pass on the part of the CITIC defendants, then the parties should endeavour to agree on programming directions for an interlocutory hearing by an exchange of evidence and written submissions - prior to a hearing at an appointment to be fixed. I see no reason why I could not determine such applications. But I would listen to any submission made to the contrary on the basis of conflict of interest.

1. Under prior interlocutory orders made in these actions, the current discovery position in both actions (somewhat uniquely since 31 May 2018) is that the plaintiffs were not seeking discovery from the CITIC defendants. Consequentially, programming orders came to be made then on the basis of only a unilateral discovery exercise - to be provided just by the plaintiffs to the CITIC defendants in both actions.
2. At the strategic conference of 19 August 2022, Mr Dunning QC, for the plaintiffs, indicated that recent changes as seen in the pleaded defences had now occasioned a need for some discovery to be ordered, in certain respects, from the CITIC defendants. Mr Dunning QC explained that amendments, as mentioned, to the defences - newly raising the permanent stay and dismissal contentions on a basis of Anshun estoppel or abuse of process - had delivered a key change. Consequently, that change gave rise to a need for the CITIC defendants to give discovery in some areas, and thus, a need for a change to the unilateral obligation discovery directions at 31 May 2018, in that respect.
3. Upon this issue, the parties should also continue to confer - over whether it is now appropriate for the former unilateral discovery position to be altered.
4. Absent a consensus, the position will, again, need to be determined by argument as an interlocutory dispute. Again, the parties should confer over a timetable for such a hearing, if that becomes necessary. Such a dispute could not be heard before me - given my earlier involvements as case manager and trial judge in the antecedent RCB trial saga - the causes of action ventilated (or not), generating the playing field on which the CITIC defendants have recently raised abuse of process and Anshun estoppel arguments in both actions.
5. Likewise, it is not appropriate I hear any interlocutory arguments associated with future strike out challenges by the CITIC defendants raised as against Fulcrum Purposes pleas by Mineralogy and Mr Palmer in amended reply pleadings - if such pleas are persisted with. Again, my antecedent trial judge involvements in prior litigation (including the site remediation litigation) in which equivalent or closely related contentions have been made, or are still pending - renders it inappropriate for me to be determining such Fulcrum Purposes strike out issues, if they remain live after the next wave of pleading amendments.

1. Lastly, I observe by reference to Mineralogy's August 2022 proposed orders for lay and expert evidence (in circumstances where Mineralogy and Mr Palmer to date have already filed a number of witness outlines to accord with my prior timetabling directions) that any further directions concerning a receipt of any further evidence for the first phase of the joint trials, by way of witness outlines or witness statements, ought more properly to be made by the putative trial judge, rather than by myself. Such orders carry matters of personal preference for a trial judge that should not be pre-empted.
2. Likewise, in respect of foreshadowed expert evidence under the August 2022 timetable as was submitted by Mineralogy, the further proposed orders and directions sought in that arena by Mineralogy should await the orders by a new case manager.
3. The next strategic conference (or directions hearing) between the parties in these actions should be fixed for a time when the parties' pleadings, following the next wave of amendments as now programmed, have finally closed, but also, when most of the residual discovery issues and document privilege issues (if any), are resolved. That conference ought to take place early in the new year - at say, late January or early February 2023, before the freshly appointed putative trial judge.
4. At that time, resourcing and availability issues should also be clearer.

1. Orders will issue in CIV 2072 of 2017 as per [44] of these reasons. Equivalent orders will issue in CIV 1267 of 2018. That will occur 48 hours after the publication and provision of these reasons to the parties - unless there is a written objection received by my chambers in that 48-hour period.

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

Research Associate to the Honourable Justice K Martin