PALMER -v- CITIC LTD [No 6] [2023] WASC 188 (1 June 2023)

1. In short terms, the Yabulu Refinery is a nickel and cobalt refinery business which has been operated as part of the Queensland Nickel Joint Venture (Joint Venture).[3] There are several entities involved in the Joint Venture. Mr Palmer is the ultimate beneficial owner of the shares of each of those entities. It is sufficient for present purposes to refer to just one of those entities, namely Queensland Nickel Pty Limited (in liquidation) (QNI). QNI was given the powers of management in respect of the Joint Venture business.[4]
2. The plaintiffs allege in the QNI Proceeding that the defendants' failure to make certain royalty payments has caused them loss such that the indemnity granted in their favour under the Fortescue Coordination Deed executed by the parties in October 2008 (FCD) is engaged.[5]
3. More specifically, the plaintiffs plead that QNI was placed into voluntary administration in January 2016 and then into liquidation in April 2016 as a result of the failure to make the royalty payments.[6] Further, as a consequence of the administration and liquidation of QNI, there was a diminution in the value of the Yabulu Refinery.[7] The plaintiffs plead that its 'best estimate of the diminution in the value of the Yabulu Refinery', is approximately $1.8 billion. This is pleaded to be based in part on the combined valuation of the net assets of two related entities (being QNM and QNR) for the financial year ended 30 June 2015.
4. Thus, the value of the Yabulu Refinery, and the combined value of the net assets of QNM and QNR, are expressly raised within the plaintiffs' pleaded case. The present prayer for relief advanced by the plaintiffs seeks payment of the sum of approximately $1.8 billion or such other sum as the court determines to be payable to the plaintiffs.
5. This short background provides some context to the documents which are sought in the Subpoenas. Each of the Subpoenas contain a schedule, in the same terms, describing the documents requested. The documents requested are set out below:
   1. In respect of the sale of the Yabulu Refinery to Zero Carbon Investek AG (ZCI) announced by Mr Clive Palmer on Facebook in December 2022 (the Sale):
      1. any proposals, requests for proposals, investment flyers, brochures or information memoranda issued by or on behalf of Mr Palmer, or Queensland Nickel Pty Ltd, QNI Resources Pty Ltd or QNI Metals Pty Ltd (or any of their related bodies corporate), relating to a sale of, or seeking investment in, the Yabulu Refinery;
      2. the share purchase agreement for the Sale referenced in Mr Palmer's announcement, all other agreements relating to the Sale, and all documents contemplated by, or giving effect to, the terms of the Sale;
      3. any fundraising documents prepared by or on behalf of ZCI for potential investors in connection with the Sale;
      4. any correspondence or documents sent to or received from any provider, or potential provider, of debt or equity finance for ZCI's purchase of the Yabulu Refinery or any of their respective advisers;
      5. any documents supplied to ZCI in respect of any due diligence enquiries undertaken by ZCI (or its agents or contractors) on the Yabulu Refinery in connection with the Sale;
      6. any valuations of, or documents ascribing a value to, the Yabulu Refinery; and
      7. any valuations of, or documents ascribing a value to, the contents of the Yabulu Refinery's tailings dam.
   2. Without any limitation to the documents described in paragraph 1 above, the following documents referenced in the news article reproduced in Schedule 1 below:
      1. the document circulated to potential investors in which Indian Ocean Capital is cited as an adviser on the Sale; and
      2. the agreement between the Port of Townsville and 'the current owners of Queensland Nickel to restart nickel ore imports'.
6. The Schedule to the Subpoenas contains an additional schedule (marked as Schedule 1), which refers to a news article published in the Sydney Morning Herald on 24 January 2023.[8] The Schedule also includes the URL for Mr Palmer's announcement on Facebook, which I need not reproduce.
7. It is necessary to also mention aspects of the discovery process in the QNI Proceeding. Various discovery categories were agreed by the parties in October 2019 and incorporated into an order of the court made on 22 October 2019. There remain disputes between the parties as to discovery issues, including an application brought on by the plaintiffs which I heard on 29 May 2023. I will deliver my reasons on that application, and others, on 13 June 2023.
8. One of the agreed categories, which is not presently in dispute, is discovery category 6. That discovery category is expressly noted by the parties, within the agreed categories document, as being relevant to the allegations in [48] of the Fifth Amended Statement of Claim, to which I have referred above. Discovery category 6 seeks:

All documents evidencing or recording any plans or proposals to re-open or sell the Refinery since 1 February 2016.

1. There is some material before the court regarding the discovery which has been given thus far in respect of discovery category 6. I refer to the correspondence between the solicitors which is attached to the affidavit sworn by Mr Blaxill (particularly Attachment CPB-7). In a letter from the defendants' solicitors to the plaintiffs' solicitors dated 22 December 2022, it is asserted that the discovery produced revealed the existence of several proposals relating to the sale of the Yabulu Refinery and discussions between the plaintiffs and third parties as to the re-opening of the refinery. The defendants' solicitors further assert that the discovery is incomplete and identify several discrepancies in this regard.[9] Finally, by their letter, the defendants' solicitors sought provision by the plaintiffs of 'documents related to the purported sale of the refinery to Zero Carbon Investek, including but not limited to any share purchase agreement, which was publicly announced on 22 December 2022'.
2. I should also mention three additional (and agreed) categories of discovery which are not in dispute, namely discovery categories 39, 40 and 41. These categories variously seek documents evidencing, recording or relating to the value of the net assets of QNR, QNM and QNI as at certain dates between 2015 and the present.[10]

1. The parties were not in vigorous disagreement as to the applicable principles the court should apply in considering whether to set aside a subpoena, save in one respect. The point of difference concerns the breadth of the proposition that it is not legitimate to deploy the subpoena process where that is done to bypass the processes for discovery. I will address this point below.
2. Order 36B r 8A(2) RSC provides that on a request by a party, the court may set aside a subpoena or part of it. The court is empowered to set aside a subpoena on the basis that it would be an abuse of the process of the court: Hancock Prospecting Pty Ltd v Hancock [2013] WASC 290 (Pritchard J). The following passages from Pritchard J's decision explain the principles and the correct approach (at [23] - [25], citing Trade Practices Commission v Arnotts (No. 2) (1998) 21 FCR 306, 102 (Beaumont J); Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486, 502 (Deane and Gaudron JJ); and Mandic v Phillis [2005] FCA 1279; (2005) 225 ALR 760 [37] (Conti J)):

[23] The Court has jurisdiction to set aside a subpoena on the basis that it would be an abuse of the process of the court. The authorities establish that that conclusion will be warranted in a variety of circumstances, such as where the subpoena does not have a legitimate forensic purpose, where the documents sought in the subpoena have no apparent relevance to the issues in dispute, where the subpoena may be characterised as a 'fishing' exercise (on the basis that it does not seek to obtain evidence to support a party's case, but rather to assist that party to discover whether he or she has a case at all) or where the subpoena has been used for the purpose of obtaining discovery against a third party. A subpoena will also be an abuse of process where it would be oppressive to require a party to comply with the subpoena. These are not exhaustive categories. The power of the Court to control and supervise its process to prevent injustice is not restricted to defined and closed categories.

[24] In considering whether a proceeding, or a step in a proceeding (such as the issue of a subpoena) is an abuse of process, the purpose for that step will be relevant, as will the consequences for the those invoking the power of the Court to act (in this case the recipient of the subpoena). Furthermore, in determining whether a subpoena is an abuse of the court's process, the court will need to balance the conflicting rights of the party to the proceedings, who issued the subpoena, with those of the third party who objects to it. On the one hand, the issuing party has a right to obtain access to documents in the hands of a third party in order to further the ends of justice, and so that he or she may, therefore, prepare a case meeting each issue arising in the proceedings. On the other hand, compliance with a subpoena to produce will inevitably have consequences for a third party, such as the inconvenience of identifying, collating and producing the documents sought, the invasion of the subpoenaed party's right to privacy, or an undermining of the confidentiality of information contained in the documents required to be produced.

[25] The Court will also need to weigh in the balance any relevant public interests which may be invoked to resist the production of documents (such as claims to public interest privilege, for example), with the public interest in the administration of justice which may be frustrated or impaired if documents relevant to an issue in dispute are withheld, having regard to the evidentiary value and importance of those documents in the particular litigation. (footnotes omitted)

1. More recently, I refer to the summary of the relevant principles in the decisions of this court in Hongkong Xinhe International Investment Company Ltd v Bullseye Mining Ltd [No 4] [2021] WASC 287 [10] ‑ [11] (Hill J) and Kestell v Davey [2022] WASC 32 [11] ‑ [18] (Smith J).
2. The court may also exercise its inherent jurisdiction to set aside a subpoena. It may do so where the subpoena does not serve a legitimate forensic purpose, where it is oppressive or where it amounts to an abuse of process: Jensen v Nationwide News Pty Ltd [No 6] [2018] WASC 415 [26] (Quinlan CJ).
3. In general terms, it may be accepted that there are circumstances in which it is not legitimate to use the subpoena process so as to enable the processes for discovery which are established by O 26 RSC (the discovery regime) and O 26A RSC (the non-party discovery regime) to be bypassed.
4. For example, in Rankilor v City of South Perth [2016] WASCA 28, the Court of Appeal upheld the decision of Davis DCJ to the effect that a subpoena issued by the appellant should be dismissed as it had been deployed as a substitute for discovery. Buss JA (as his Honour then was), Newnes and Murphy JJA held as follows:

[38] Finally, on the fourth ground, the primary judge was correct in observing that it is inappropriate to use a subpoena as a substitute for discovery. There is, by O 26 of the Rules of the Supreme Court 1971 (WA), a procedure for discovery of documents by which a party may obtain from the other party documents relating to any matter in issue in the action and, if a party is dissatisfied with the extent of discovery made by an opposing party, a procedure by which discovery of particular documents may be sought. The principles to be applied in respect of those procedures are well-settled. A subpoena to produce documents to the court is intended for a different purpose and is subject to different rules. A subpoena is not a different means by which the purposes of O 26 may be achieved and it is inappropriate to use a subpoena in substitution for an application for discovery or discovery of particular documents. That has long been established: see The Commissioner for Railways v Small [1938] NSWStRp 29; (1938) 38 SR (NSW) 564, 574 - 575; Kizon v Palmer (1997) 75 FCR 261, 271 - 272; Diddams v Commonwealth Bank of Australia [1998] FCA 497; Australian Competition and Consumer Commission v Shell Co of Australia Ltd [1999] FCA 212; (1999) 161 ALR 686 [49] - [51]; NSW Commissioner of Police v Tuxford [2002] NSWCA 139 [19]. This ground must fail.

1. The subpoena in Rankilor was issued following complaints by the appellant that the respondent's discovery was inadequate, which led to a series of discovery applications being filed by the appellant in the District Court proceedings. Ultimately, the appellant caused the subpoena to be issued, seeking precisely the same documents which had been sought by way of discovery (at [15]). The subpoena was issued directly to the respondent (i.e. to a party in the proceeding).[11] The court concluded, at first instance and on appeal, that the subpoena process was being used to obtain de facto discovery.
2. In Kestell, Smith J dealt with an application to set aside subpoenas the terms of which overlapped with the discovery requested. Her Honour cited the decision of the Court of Appeal in Rankilor, but then noted that:

[13] However, in circumstances where the addressee of the subpoena is not a party to the proceeding, it can be entirely appropriate to issue subpoenas before discovery [citing Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [2012] WASC 37].

1. By way of further example, in proceedings between the current parties, in Action CIV 1514 of 2016, Kenneth Martin J set aside subpoenas issued by the Mineralogy parties which were issued on the eve of trial: CITIC Ltd v Mineralogy [No 4] [2020] WASC 439. His Honour did so on the basis that the subpoenas would, in part, likely lead to a circumvention of the discovery process which had been well and truly completed at that stage. His Honour held:

By my assessment, the five document subpoenas seeking production as proposed to be issued by Mr Palmer should not be allowed or, if issued, should be set aside as not serving any legitimate forensic purpose. They would, if allowed, also, in my view, lead to a likely circumvention of the discovery process in this action to date and which was completed some time ago. Discovery in this action was, at the time, a thorough, elaborate and time consuming interlocutory step. The five subpoenas as proposed to be issued by Mr Palmer to the three CITIC plaintiffs or to their lawyers or to related entities, on my assessment, would illegitimately and at a very late stage circumvent the discovery process and this is impermissible. Moreover, the Fulcrum or Fulcrum team issues as are sought to be ventilated at this late time are so remote in terms of any relevance to looming trial issues that the subpoena exercise, like the attempted requests for further and better discovery made by Mineralogy in very similar terms, cannot be permitted. To allow them would be oppressive. They would also constitute a vexatious abuse of the process of the court.[12]

1. I should mention two further decisions, namely Buswell v Carles [2012] WASC 509 (McKechnie J) and Temwell Pty Ltd v DKGR Holdings Pty Ltd [2002] FCA 741 (Merkel J), the latter of which was cited by McKechnie J. Both authorities were relied upon by the plaintiffs. In both cases, the court accepted, as a matter of principle, it was not a legitimate use of the subpoena process to bypass the non-party discovery regime.
2. In Temwell, Merkel J referred to the decision of Jordan CJ in The Commissioner for Railways v Small [1938] NSWStRp 29; (1938) 38 SR (NSW) 564 as the authority for the proposition he propounded:

[3] Plainly, the documents sought by the mCOM parties could have been, but were not, the subject of an application for discovery from a non-party under O 15A r 8. It would not be a legitimate use of the subpoena procedure to bypass that rule to obtain what would be in effect discovery against a non-party: see The Commissioner for Railways v Small [1938] NSWStRp 29; (1938) 38 SR (NSW) 564 at 573.

1. The Court of Appeal in Rankilor similarly fastened their statement of principle to the decision of Jordan CJ. The oft-quoted passage of the Chief Justice in Small (at 573) thus supplies a primary underlying rationale for the above principle. The essence of that passage is the necessity for a subpoena for production of documents to identify with reasonable particularity the documents which are sought, lest the subpoena begin to resemble a request for discovery which would require the recipient, where that person or entity is a stranger to the litigation, to form their own judgments as to the relevance of the documents. The Chief Justice held as follows (at 573):

A writ of subpoena duces tecum may be addressed to a stranger to the cause or to a party. If it be addressed to a stranger, it must specify with reasonable particularity the documents which are required to be produced. A subpoena duces tecum ought not to be issued to such a person requiring him to search for and produce all such documents as he may have in his possession or power relating to a particular subject matter. It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in the effect discovery of documents against a person who, being a stranger, is not liable to make discovery. A stranger to the cause ought not to be required to go to trouble and perhaps to expense in ransacking his records and endeavouring to form a judgment as to whether any of his papers throw light on a dispute which is to be litigated upon issues of which he is presumably ignorant: Lee v. Angas. (3); Burchard v. Macfarlane. (4) ; A.-G. v. Wilson. (5); Newland v. Steer. (6) And if a subpoena duces tecum is issued to such a person in an objectionable form, the witness may apply to the Court to have it set aside.

1. Further, it should be borne in mind that the subpoena under consideration in Small had been issued to a party, not a stranger. It was also issued shortly before the trial of the action. The Chief Justice addressed the circumstance in which a subpoena is issued to a stranger in the passage I have extracted above (at 573). His Honour then addressed the circumstance in which a subpoena is issued to a party (at 574 - 575, which is the passage to which the Court of Appeal in Rankilor refers). In that passage, the Chief Justice held as follows (at 574 - 575):

Where the subpoena is addressed to a party, it is still necessary that it should state with reasonable particularity the documents which are to be produced: A.-G. v. Wilson. (7); Earl of Powis v. Negus. (8). It is true that a party, unlike a stranger, can be required to give discovery; but it is not legitimate to use a writ of subpoena duces tecum as a substitute for an application for discovery of documents, or as an alternative to an application for further and better discovery. Discovery applications should be made at the proper time and place.

1. Returning to Buswell, on the facts before him, McKechnie J declined to set aside the subpoena because considerations of justice and convenience, as well as the court's goal of the elimination of delays, required the production of the documents sought (at [15] and [27]). In Temwell, Merkel J similarly declined to set aside the subpoena, accepting that it was not, in the circumstances of that case, an attempt to bypass the non-party discovery regime in the Federal Court Rules (at [4] - [6]).
2. Both parties made submissions as to the interaction and overlap between the subpoena and the discovery processes, and the circumstances in which this may give rise to an abuse of process.
3. In my view, having regard to the authorities which I have addressed above, in order to demonstrate an abuse, it is not sufficient merely to conclude that the documents sought by way of subpoena could also be obtained on discovery from a party to the proceedings. Such a narrow criterion is not supported by the authorities, including Kestell, Rankilor and Temwell.[13]
4. It is necessary for the party seeking to set aside a subpoena on this basis to point to some additional vice in the manner in which the subpoena is being deployed. This may be apparent from the use of a subpoena to circumvent a court's refusal to order discovery. It may be apparent from the use of a subpoena to pursue documents after a comprehensive discovery process has been completed. Further, it may be apparent where the subpoena has failed to identify with reasonable particularity the documents which are sought such that it resembles a discovery request to a stranger, requiring the recipient to form their own judgments as to the relevance of the documents. It may be apparent because the subpoena is issued to a party to the proceedings who is bound to give discovery in any event. It may be a combination of these matters.
5. I do not intend to express the foregoing matters as representing an exhaustive set of categories in this regard. They are simply examples. Ultimately, a conclusion to the effect that a subpoena is being used improperly will necessarily depend on all the circumstances including the scope and terms of the documents sought by the subpoena (which will need to be assessed against the scope of any discovery which is, or may be, sought in the proceedings), the status of the discovery process, and the identity of the subpoena recipient. I intend to approach the Application before me on this basis.

D. The parties' submissions Plaintiffs' submissions

1. The plaintiffs contend that the Subpoenas are an abuse of process because the Subpoenas: (a) have no relevance to an issue in dispute in the case as currently pleaded and particularised; (b) are an apparent attempt to impermissibly bypass the court's discovery regime and in effect seek discovery from a non-party; and (c) have no legitimate forensic purpose.[14] There is plainly some overlap between these aspects of the plaintiffs' arguments.
2. The plaintiffs contend that the Subpoenas seek expansively framed categories of documents in respect of the sale of the Yabulu Refinery and are 'overbroad'.[15] The plaintiffs submit there is no evidence before the Court, or any suggestion by any of the parties, that the potential sale the subject of the subpoena requests has in fact completed. In essence, the plaintiffs say that the defendants are merely foreshadowing a contention that if the Yabulu Refinery is sold, such a sale would be apt to affect the quantum of loss claimed by the plaintiffs.[16] However, according to the plaintiffs, such a contention is a 'mere hypotheticality' until the sale is completed. If the sale does not complete, the documents sought by the defendants 'will forever remain irrelevant'.[17]
3. The plaintiffs also contend that, as the Subpoena Recipients are advisors to the Mr Palmer on the potential sale, the documents sought would be within Mr Palmer's power or control to obtain for the purpose of discovery. The plaintiffs contend that the defendants have not pursued these documents from the plaintiffs by way of discovery and say that, in any event, such a request would fail as the documents are not relevant to any pleaded issue.[18]
4. The plaintiffs also express a caution that the Subpoenas involve a 'probing inquiry into every aspect of the potential sale' which is not only currently irrelevant they submit, but it will never be relevant.[19] The plaintiffs point to the future and submit that, if and when the potential sale does complete, 'it is on the cards that amendments to the pleadings will follow, with the effect of making any completed sale relevant to the issues in dispute'.[20] The discovery processes of the court may then be utilised to permit access to documents, without the need to trouble non-parties.

1. The defendants maintain that the Subpoenas do not offend any principle concerning the illegitimacy of bypassing the discovery regime. The defendants have submitted that the principle as sought to be applied by the plaintiffs in this respect requires significant qualification. As will be apparent from my earlier comments, I respectfully agree.
2. Specifically, the defendants submit that merely because the documents sought pursuant to a subpoena might also be sought in discovery does not, of itself, mean that the subpoena is an abuse of process. It can be entirely appropriate to issue subpoenas before discovery. Further, the fact that documents have been sought on discovery, and refused, does not prevent them being obtained by subpoena from a third party.[21]
3. Further, the defendants contend that the existence of an overlap between documents produced on subpoena and those discovered by a party does not justify the characterisation of the subpoena as an abuse. The defendants assert, correctly in my view, that it is an abuse of process to compel production of documents from a third party if the subpoena is used for the purpose of discovery whereby the person to whom the subpoena is addressed will have to make a judgment as to which documents relate to the issues between the parties. The defendants also accept that it would be an abuse of process to compel production of a document in respect of which the court has refused to grant discovery.[22]
4. As to the relevance of the documents sought by way of the Subpoenas, the defendants refer to the apparent relevance test, submitting that it is enough if a document or class of documents gives rise to a line of enquiry relevant to the issues before the trier of fact, including for the purpose of meeting the opposing case by way of cross-examination. This is a low threshold. It is also a different, lower threshold than for discovery.[23]
5. As to the challenge by the plaintiff that there is an absence of any legitimate forensic purpose, the defendants note that a legitimate forensic purpose will be established if a document gives rise to a line of enquiry relevant to the issues before the trier of fact. The court will consider whether there is a reasonable possibility or that 'it is on the cards' that the documents sought in the subpoena will materially assist the claim or the defence or are relevant to an issue in the proceedings. The defendants say the documents requested in the Subpoenas meet this test.[24]

1. There is a degree of overlap between the various arguments agitated by the plaintiffs in this Application. I have attempted below to address the arguments using the headings employed by the parties.

The Subpoenas are not an attempt to bypass the discovery regime

1. The first issue to address is the plaintiffs' contention that the Subpoenas constitute an attempt to bypass the discovery regime and are thus an abuse of process. In my view, the plaintiffs' contention in this regard proceeds on an overly simplified proposition of law. I refer to my discussion of the relevant principles at [22] to [35] above of these Reasons. As I have sought to explain, in order to demonstrate an abuse, it is not sufficient merely to conclude that the documents sought by way of subpoena could also be obtained on discovery from a party to the proceedings.
2. In the present case, while the written submissions of the plaintiffs described the scope of the documents sought in the Subpoenas as being 'vastly overbroad' and 'expansively framed', I did not understand the oral submissions of Senior Counsel for the plaintiffs to maintain a serious attack on the breadth of the descriptions within the Subpoenas.[25] That being so, it cannot be said that the Subpoenas fall foul of the principles expressed by Jordan CJ in Small (at 573).
3. What then remains of this aspect of the plaintiffs' challenge? Presumably, it rests upon the notion that the documents being pursued in the Subpoenas may also be discovered by the plaintiffs themselves (in due course) in compliance with their discovery obligations and pursuant to the agreed categories to which I have already referred. Allied to this, I acknowledge the plaintiffs' submission that documents held by their advisors (who are the Subpoena Recipients) may fall to be discovered by the plaintiffs by reason of being in their custody or control.
4. In my view, these matters are insufficient to support a conclusion that the Subpoenas are an abuse of process, in the sense of being an illegitimate attempt to circumvent a process otherwise provided for in the Rules. It may be accepted that the documents sought by the Subpoenas in the present case may also be sought by way of discovery through another procedure in the Rules. Such was the case in both Buswell and Temwell.[26] Indeed, there is some overlap between the documents sought in the Subpoenas and the documents falling within discovery category 6. The material before the court does not enable a finding to be made that the Subpoenas have been deployed solely because the plaintiffs have failed to provide fulsome discovery of the documents in discovery category 6 (or other categories) and I am not prepared to draw such an inference.
5. What emerges from the material before the court is that, over three years ago, the parties agreed (and the court ordered) various categories of documents in respect of which discovery would be provided. More recently, in December 2022, a sale of the Yabulu Refinery was announced and then, in January 2023, a media article was published regarding the proposed sale. These developments provided the impetus, I infer, for the defendants to pursue documents on subpoena from the advisers named in the public announcement and media article. That is not a circumvention of the discovery process, rather it is the cumulative use of the procedures in the Rules to obtain documentary material germane to an issue in the proceedings. I see no vice in this approach.

1. This aspect of the plaintiffs' challenge is answered by the terms of [48] of the Fifth Amended Statement of Claim and the formulation, agreed by the parties, of discovery category 6. The plaintiffs' challenge also faces difficulties once it is acknowledged that the applicable test is apparent relevance, which sets a low threshold for the defendants to overcome.[27] I accept it is enough, for the purposes of this test, if a document or class of documents gives rise to a line of enquiry relevant to the issues before the trier of fact, including for the purpose of meeting the opposing case by way of cross-examination.
2. I have earlier referred to the allegations in [48] of the Fifth Amended Statement of Claim. My assessment of those allegations is that the value of the Yabulu Refinery, and the combined value of the net assets of QNM and QNR, are matters which are expressly raised by the plaintiff in their pleaded case. As submitted by the defendants, the documents sought by each item in the Subpoenas is likely to give rise to a line of enquiry relevant to the value of the Yabulu Refinery or the combined value of the net assets of QNM and QNR. The value of the Yabulu Refinery is the basis upon which the plaintiffs have estimated their alleged loss in the QNI Proceeding.
3. I accept the submission of the defendant that, regardless of whether the sale ultimately completes or not, the terms of the sale (conditional or otherwise) represents a market valuation of the Yabulu Refinery 'on terms and based on considerations which can reasonably be expected to be evidenced by the documents sought'.[28]
4. I should next mention discovery category 6. The parties agreed this discovery category in October 2019. Frankly, the formulation of the category demonstrates there was (at least at some previous point in time) common ground between the parties that documents relating to the re-opening or sale of the Yabulu Refinery were relevant to a matter in issue in the QNI Proceeding and, furthermore, that 'plans' and 'proposals' concerning the re-opening or sale of that refinery were relevant. The inclusion of such preparatory descriptions demonstrates an acceptance by the parties that documentary material evidencing a future transaction is relevant and so heavily undercuts the plaintiffs' criticism of the Subpoenas to the effect that they seek documents regarding an incomplete sale which may never be consummated and are therefore premature. I thus do not accept the plaintiffs' criticism in this respect.

The Subpoenas have been issued for a legitimate forensic purpose

1. The plaintiffs appear to separately assert that the Subpoenas lack any legitimate forensic purpose. Typically, I would approach such a complaint by assessing whether the documents requested give rise to a line of inquiry which is relevant to the matters in issue, are required for the fair disposal of the action, and will allow the parties to appraise the strengths of their and their opponent's case and should be made available to the parties. I have already addressed these issues above.
2. This aspect of the plaintiffs' attack also appears in part to be a challenge to the asserted premature, expansive and broad nature of the Subpoenas, which I have also already addressed. In addition, the defendants rightly note there has been no full throated attack on the Subpoenas as being oppressive or burdensome, and certainly no evidence has been filed to this effect. In any event, a criticism that a subpoena is merely burdensome is not enough to justify that it be set aside.
3. For my part, I do not perceive the terms of the Subpoena as being unnecessarily broad or an overreach. The articulation within the Subpoenas of the documents which are sought has been undertaken in a manner which drives directly into key issues arising in the QNI Proceeding, at least on the proposed pleadings. That is, the proposed sale and valuation of the Yabulu Refinery.
4. I also give weight, in assessing the Subpoenas, to the size and nature of the matters which arise in the QNI Proceeding. The amount sought by the plaintiffs in the proceeding is material and significant - in the order of $1.8 billion. Further, the value of the Yabulu Refinery is the basis upon which the plaintiffs have estimated their alleged loss. I believe I can safely infer the Yabulu Refinery is a complex asset and further that a large volume of documents would be required to undertake a proper valuation of this asset. This would not be a simple exercise. These matters must be borne in mind when assessing whether the scope of the Subpoenas exceed the proper boundaries.
5. I have therefore reached the conclusion that I should reject the plaintiffs' contention that the Subpoenas have no legitimate forensic purpose. In my view, the Subpoenas as drafted seek from the Subpoena Recipients documents which are appropriately described.

1. As I have mentioned, and as will be apparent from the previous decisions of Kenneth Martin J in these proceedings, the claims advanced by the plaintiffs are high value and complex. A lengthy and expensive trial awaits the parties and the court. Both sets of parties are sophisticated and well-resourced. The plaintiffs have, through Senior Counsel, commendably stated a clear desire to proceed to trial as swiftly as possible. This desire is consistent with the court's goal in O 1 r 4A RSC that:

The practice, procedure and interlocutory processes of the Court shall have as their goal the elimination of any lapse of time from the date of initiation of proceedings to their final determination beyond that reasonably required for interlocutory activities essential to the fair and just determination of the issues bona fide in contention between the parties and the preparation of the case for trial.

1. I must take the above goal into account, as well as the case flow management objects in O 1 r 4B RSC, when approaching interlocutory applications such as the present.
2. I raise these matters because there is a degree of tension between the plaintiffs' stated desire to proceed to trial and the apparent failure by the plaintiffs to finalise compliance with some of its discovery obligations as ordered in October 2019 (such as discovery category 6). This gap in the discovery may, in part, explain the defendants' desire to engage the subpoena process, although as I have noted above, the recent public announcements of the Yabulu Refinery sale seem to provide the proximate catalyst for the subpoena deployment.
3. Relatedly, the plaintiffs seek to delay production of documents concerning the Yabulu Refinery until the completion of the sale. The completion date is not presently known. If the production of these documents is delayed until completion, there is a real risk that documents which are relevant to the valuation issues in the QNI Proceeding will emerge late in the process and disrupt the orderly pathway of this matter to trial. The late production of important documents in litigation such as this may lead to pleading amendment applications which are untimely, as well as generate additional requests for documents including by way of subpoena. Even once documentary material is discovered or produced, it is not uncommon for arguments as to privilege and confidentiality issues to arise which may further delay these processes.
4. In my view, there is merit in ensuring the production of documents which go to the valuation of the Yabulu Refinery is completed promptly. That may be achieved through a combination of processes, most particularly by ensuring the parties double their efforts to discharge their discovery obligations as well as through targeted subpoenas. This may produce some overlap in matters, but an overlap is insufficient to justify a refusal to permit the subpoena process to be used.
5. In my view, considerations of justice and convenience, together with the court's goal of the elimination of delays, further support an outcome whereby the production of the documents sought through these Subpoenas is allowed to progress.
6. For all of these reasons, I am not satisfied the Subpoenas can be impugned in the manner contended by the plaintiffs and I will therefore dismiss the Application.

1. I will order that the Application be dismissed. I will hear from counsel as to whether any extension of time for compliance with the Subpoenas is required and as to the appropriate costs orders which should now be made.

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

[1] Chamber summons filed by the plaintiffs dated 23 May 2023.

[2] Mr Blaxill's affidavit was also relied upon for the purposes of other matters before the court on 29 May 2023.

[3] Fifth Amended Statement of Claim, [34].

[4] Fifth Amended Statement of Claim, [36].

[5] Fifth Amended Statement of Claim, [6], [21] - [29], [31] - [33], and [37] - [44].

[6] Fifth Amended Statement of Claim, [45] - [47].

[7] Fifth Amended Statement of Claim, [48].

[8] The media article is Anne Hyland, 'Clive Palmer's companies gain port access for Queensland nickel refinery', The Sydney Morning Herald (online, 24 January 2023).

[9] Affidavit of Mr Blaxill, Attachment CPB-7, pg 102.

[10] Orders of Kenneth Martin J made on 22 October 2019 (see schedule attached to those orders).

[12] CITIC Ltd v Mineralogy Pty Ltd [No 4] [2020] WASC 439 [23] (Kenneth Martin J).

[13] See [22] - [30] above of these Reasons.

[15] Plaintiffs' submissions [7] and [11].

[21] Defendants' submissions [4] and [9] - [11].

[23] Defendants' submissions [6] and [12] - [22].

[24] Defendants' submissions [7], [8] and [23] - [25].

[26] In both cases, the documents could also have been sought through a non-party discovery procedure (either O 26A RSC or O 15A of the Federal Court Rules, as it formerly was), rather than through an inter partes discovery regime.

[27] Alinta Sales Pty Ltd v Woodside Energy Pty Ltd [2008] WASC 304 [20] - [31] (Beech J); and Boase v Axis International Management Pty Ltd [No 3] [2012] WASC 498 [10] - [11] (Beech J).