Australia, Sept. 19 -- Supreme Court of Western Australia in Chambers issued text of the following order on Sept. 17:
1 These reasons concern the discovery aspects of the omnibus interlocutory applications heard on 6 August 2024 in these two actions.[1]
2 These reasons should be read together with the reasons published by the Court on 10 September 2024 in respect of the interlocutory pleadings disputes which were also heard on 6 August 2024: Palmer v CITIC Ltd [No 13].[2] Those earlier reasons include a summary of the respective cases pleaded by the parties in these actions, particularly as to the QNI Proceeding, which need not be repeated in these reasons.[3]
3 The discovery applications agitated across the two actions seek similar orders, and necessitate a consideration of similar issues in the actions. As with my approach to the pleading issues, without seeking to marginalise the Palmer Petroleum Proceedings, but in the interests of efficiency, I will tend to focus in these reasons on the QNI Proceeding, and address the Palmer Petroleum Proceeding as necessary.
4 In each of the QNI Proceeding and the Palmer Petroleum Proceeding, there are two applications which have been filed in relation to discovery issues. There have been several hearings over the past 18 months on these discovery issues and, during that period, various discovery orders have been made. Nonetheless, a number of issues remain insoluble and require resolution by the Court.
5 I should emphasise that the attention of the parties, and the Court, has not been directed to the making of discovery orders in only recent times. Over 6 years ago, in May 2018, Kenneth Martin J made orders in both actions to discharge the CITIC Parties from their duty to give discovery to the plaintiffs.[4] Then, almost 5 years ago, in October 2019, Kenneth Martin J made extensive discovery orders in these actions which required the Mineralogy Parties to give discovery of numerous categories of discovery. The Court's record of these proceedings indicates that the discovery orders made in 2019 were made largely by consent. In structuring the various categories at the time, it can be inferred that the parties gave consideration to the issues arising in the actions and the scope of their discovery obligations. The changes in the pleadings over time have now led to a more intense analysis of these issues in the past 18 months. It is apparent that changes to the pleadings now require additional discovery to be given.
6 Detailed written submissions have been filed by the parties in relation to these applications, in respect of the hearings in May 2023,[5] May 2024[6] and August 2024.[7] Extensive oral submissions have also been made by respective senior counsel for each party at those hearings. The submissions filed by the parties and developed by senior counsel were helpful to the resolution of the issues, and I hope I do not do any of them a disservice by not reciting all of those submissions in these reasons.
B. The discovery applications
7 It is convenient to commence these reasons by clarifying the nature and terms of the discovery applications which remain on foot. A summary of the various categories of discovery which have been, or are being pursued, and the applications relating thereto, are set out in the table in Attachment A to these reasons.
The applications filed by the Mineralogy Parties
8 The Mineralogy Parties seek orders pursuant to the amended chamber summons dated 17 June 2024, filed in each action. These applications were originally filed some time ago, in January 2023, and were first addressed at a hearing in June 2023, following which the Court ordered the application be adjourned.[8] Various discovery issues were then addressed by the Court at the hearing on 21 May 2024, with discovery orders being made on 24 May 2024.[9] The balance of the discovery issues were held over and listed for hearing on 6 August 2024.
9 Within the Mineralogy Parties' application, the issues requiring resolution by the Court are as follows.
10 First, the Mineralogy Parties seek orders in both actions to require the CITIC Parties to give discovery of documents described as the 'Fulcrum Categories'. There were initially seven (7) categories of documents comprising the 'Fulcrum Categories', three (3) of which have now fallen away through agreement between the parties. I will refer to this aspect of the application as the Mineralogy Fulcrum Discovery application. The 'Fulcrum Categories' are set out in Attachment B to these reasons.
11 These categories are unashamedly directed at the disclosure of documents held by the CITIC Parties which would expose the CITIC Parties' consideration of the merits of previous litigation between these parties in this Court. That will naturally give rise to the question whether such material is privileged and subject to a legitimate ground for withholding the documents from production and inspection.
12 The foregoing matters, given the positions adopted by the parties, will require a consideration of the utility of the discovery orders which are sought and whether the effort in requiring the discovery processes to be complied with is disproportionate in the circumstances.
13 Second, the Mineralogy Parties also seek orders in both actions that they be discharged from giving discovery of certain categories of documents, which, broadly speaking, concern the financial position of Mr Palmer and his related entities.[10] I will refer to this aspect of the application as the Mineralogy Discovery Discharge application. The categories in question are set out in Attachment C to these reasons.
*Rest of the document and Footnotes can be viewed at: (https://ecourts.justice.wa.gov.au/eCourtsPortal/Decisions/ViewDecision?returnUrl=%2feCourtsPortal%2fDecisions%2fFilter%2fSC%2fRecentDecisions&id=dcb9f6d1-3708-47b2-941e-fb52e2592e9a)
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