Palmer v The State of Western Australia; Mineralogy Pty Ltd & Anor v State of Western Australia [2021] HCATrans 33 (26 February 2021)

Last Updated: 9 March 2021

[2021] HCATrans 033

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B52 of 2020

B e t w e e n -

CLIVE FREDERICK PALMER

Plaintiff

and

THE STATE OF WESTERN AUSTRALIA

Defendant

Office of the Registry
Brisbane No B54 of 2020

B e t w e e n -

MINERALOGY PTY LTD

First Plaintiff

INTERNATIONAL MINERALS PTY LTD

Second Plaintiff

and

STATE OF WESTERN AUSTRALIA

Defendant

KIEFEL CJ

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 26 FEBRUARY 2021, AT 11.01 PM

Copyright in the High Court of Australia

____________________

MR C.F. PALMER appeared in person in B52.

MR D.F. JACKSON, QC: Your Honour, I appear with my learned friend, MR H.C. COOPER, for the plaintiffs in B54. (instructed by Jonathan Shaw)

MR J.A. THOMSON, SC, Solicitor‑General for the State of Western Australia: May it please the Court, I appear for the defendant in each matter, with MS J.E. SHAW. (instructed by State Solicitor’s Office (WA))

HER HONOUR: Yes, thank you. I note at the outset that I have read the voluminous material which has been provided by the parties on what is actually a directions hearing, but I have not read the annexures to Mr Palmer’s affidavit which exceeded 1000 pages. Mr Palmer, you might advise those who are assisting you that they are not to file documents as large as that, even electronically. All that it ensures is that I do not read it.

MR PALMER: Yes, your Honour.

HER HONOUR: As a preliminary matter I understand there is no objection to leave being given for the plaintiffs in B54 to file a second further amended statement of claim. Is that the case, Mr Solicitor?

MR THOMSON: Yes, that is correct, your Honour. If you have the minute that has been provided by the plaintiffs in B54, the first five orders of that minute are uncontentious.
HER HONOUR: Yes, very well, I will read those into the record - the first four, in any event, that deal with the amendment to the pleadings:

1. By 26 February 2021 the plaintiffs are to file and serve a Second Further Amended Statement of Claim in the form attached to the Affidavit of Daniel Jones affirmed 23 February 2021 (“SFASOC”).

2. By 26 February 2021 the plaintiffs are to file and serve a document recording the further particulars to the SFASOC.

3. By 2 March 2021 the defendant is to file and serve a defence to the SFASOC.

4. By 5 March 2021 the plaintiffs are to file and serve any reply to the defence to the SFASOC.

I should say also that there appears to be a little confusion about what is happening today. At the last directions hearing I said that if the special case was agreed by today I would list the matter in the May sittings and of course give any directions necessary. If the matter was not agreed, the matters were to be set down for a hearing of the applications for a case stated. I did not say that I would be hearing those applications today and I will not be hearing them. This is a directions hearing.

But I think there is a substantial matter which perhaps stands in the way of a hearing and it arises in relation to what I understand to be the two issues which remain in dispute between the parties. The first is whether or not there should be reference to the facts surrounding the making of the enforcement order under the Commercial Arbitration Act which was made by Justice Martin in the Supreme Court of Queensland on 13 August 2020. That order was set aside on 25 November 2020.

That is a matter which arises in both matters because of the pleading of the full faith and credit issue arising under section 118 of the Constitution. In the Palmer matter, I understand that there remains disagreement about whether the Hansard report should be referred to and annexed to the special case. I think the hurdle, at least initially, appears to me to arise in relation to the enforcement order.

The plaintiffs plead that the West Australian Act in question does not give full faith and credit to the order made in August last year “for so long as it was in existence”. I assume that it is also recognised that full faith and credit must be given to the orders setting that enforcement order aside, hence the short period that this is said to relate to, but the short period of some months for which the order was in existence or is alleged to be in
existence since the defendants take issue with whether or not it was ever a valid order, is said to found a declaration that sections of the Act do not give full faith and credit. I have to say, Mr Jackson, it is a rather curious claim, but it seems to be one that is persisted in.

MR JACKSON: I am sorry, your Honour, I just did not catch the last thing your Honour said, the very last thing.

HER HONOUR: I said it is a rather curiously worded claim for a declaration which goes wider than the plea itself, but it appears to be persisted in despite the fact that the whole question of the order is a matter in the Court of Appeal of the Supreme Court of Queensland by the appeal brought.

For present purposes, for today’s purposes, the defendant challenges the validity of the order and seeks to rely on the facts found by Justice Martin to say that the order was of no effect from the time it was made. It was always liable to be set aside. Of course, if the facts were simply as Justice Martin found them to be the judgment would speak for itself.

The problem is here, as I apprehend it, that the facts as found by his Honour are presently under challenge by the plaintiffs in the appeal they have brought. The problem is highlighted by the approach of the defendant which seems to assume that pending the appeal this Court will somehow make findings of fact for itself about a matter which is – of which the Supreme Court is seized and the question, Mr Jackson, which obviously arises is why should this matter not be adjourned generally pending the finalisation of that issue.

As I see it, it is not a question of how the facts come to be stated in the special case. It is whether or not this matter should proceed to a hearing at all whilst the facts are yet to be finalised by the Court of Appeal and I would have thought potentially by special leave brought to this Court. Mr Jackson?

MR JACKSON: Yes. Well, your Honour, could I say in relation to those things the issue concerns the State’s desire to add material to the paragraph 40 of the drafts that seem to be agreed there in other potentially relevant respects. What the State wishes to have included, as your Honour has said, are the materials that were before Justice Martin at the time he made his first order, which was later set aside a few months later.

The draft is a special case. At present it includes his Honour’s reasons for setting aside the earlier order and that there have been appeals, as your Honour has mentioned, by the plaintiffs which are to be heard in August and there is an application also by the State that the Supreme Court refused to enforce the awards.

In our submission, your Honour, the fact of the matter was that Justice Martin made an order which was in operation from 13 August to 25 November. It was an order made by a superior court and, in our submission, one valid until set aside, whatever be the basis for setting it aside and whether that basis be on constitutional grounds all because it was obtained ex parte and without notice when those requirements were required.

Could I just mention, your Honour, and we sent reference to the Court and to our friends yesterday, all seven members of the Court in Kable (No 2) [2013] HCA 26; 252 CLR 118 took the view that the decision of a superior court in Australia was valid until set aside by one of the procedures for setting aside an order of such a court. Could I refer your Honour to six members of the Court, including your Honour, page 133, paragraph 32 and Justice Gageler, page 140, paragraphs 56 and 57 particularly.

Your Honours, could I just pause at that point to say what is going to happen.....if the State’s application to have the Supreme Court refuse to enforce the awards is successful, in our submission it will not affect the effect that Justice Martin’s order had while it was extant. If our appeal to the Court of Appeal succeeds, it simply means that Justice Martin’s original order should not have been – sorry, if the plaintiff’s appeal to the Queensland Court of Appeal succeeds, it simply means that Justice Martin’s original order should not have been set aside.

Now, your Honours, the respondent’s submissions on the application refer in paragraphs 7 and 8 to the “defence” which it is sought to raise. That would seem, with respect, to overrule Kable (No 2). Well, that is not impossible but perhaps a somewhat ambitious undertaking but, your Honours, why in our submission would one want to have before this Court the material before Justice Martin when he made his first order. The answer to that hypothetical question is that the matters sought to be derived from are set out in paragraph 9 of the State’s submissions. Each matter, your Honour, was the subject of a finding in the State’s favour. Why go behind those findings?

Your Honour, to put it shortly, paragraph 12 of the State’s submissions refers to the material necessary for its case but that material will not result in a nullification as if it never existed of Justice Martin’s order, so we would submit the situation in relation to this material is at - the current state of the material is at its worst, in a sense, for our case but it shows there is an order that was in being for several months.

On the other hand, the situation, whatever the result of the application by the other side for our appeal, it will not be worse for us. So, in our submission, there will always be what Justice Martin said in his first decision as an order which was alive for at least the time that was from August.....

HER HONOUR: You are effectively saying that this Court should ignore what his Honour found in relation to the order setting aside.

MR JACKSON: We could not, your Honour. We are happy to have in the sense of recognising the existence of and for the present being bound by the findings that were made by Justice Martin. If those findings are set aside in due course they will be set aside but if not they remain.

HER HONOUR: Your argument depends entirely upon whether or not there is any ability for the defendant to argue that the order initially made by Justice Martin was always liable to be set aside because it is in a special category of orders that are effected by, to use a general term, a fraud on the court by misinformation.

MR JACKSON: Well, your Honour, whatever the basis – may I start again? There are various bases and procedures by which an order of a court such as that.....by Justice Martin can be set aside. The ability to appeal, of course, in the appropriate case, that could be a matter going to this Court, otherwise.....below. I think that might not be the case at the Supreme Court and one has the ability to have an order set aside on the basis that it should not have been made. But one of the differences between the superior court and the inferior courts is that the order of the superior court is effective and, in effect, while it exists.

HER HONOUR: That is perhaps getting away from the fact of how the matter is pleaded. The question for this Court is really not the Kable question, is it? It is whether full faith and credit should be given to the initial enforcement order. Now, the defendant says it should not be because of the actions of the plaintiff as found by Justice Martin and your plaintiffs and Mr Palmer would say, well, it should be regardless of what he found because it is because what his Honour later found was wrong, hence, we are appealing the matter. So, either way, the parties are contesting facts which they say will be relevant to whether or not full faith and credit should be given to the enforcement order.

MR JACKSON: Well, your Honour, we are in a position - the difference of view is whether the material that is referred to as having – to put it shortly, the material we used in order to obtain the first order from Justice Martin should or should not be before - part of a special case. If your Honour were of the view that it is appropriate for that to be so, well, then we would accept what your Honour says.

HER HONOUR: No, I am going further than that, Mr Jackson. I am querying whether this matter should proceed to a hearing before this Court at all until the matter is resolved by the Court of Appeal and/or by special leave brought in relation to that matter depending on the outcome of the appeal.

MR JACKSON: Well, could I just say that this is a case which has – which in our submission is one that (a) is appropriate for the Court, (b) is one in which the issues, whilst difficult no doubt, are issues which are clear enough and ones that combine the circumstance where it is appropriate – I do not think I can take it further - for the Court to deal with in its original jurisdiction either as a special case or pursuant to section 18.

HER HONOUR: Mr Jackson, just as a matter more generally relating to the relief that is sought, how does an enforcement order in place for some months found the wide declaration that is sought? I mean, how do you get to a declaration that more generally the sections do not give full faith and credit when we are talking about something which occurred for a few months?

MR JACKSON: Well, your Honour, that is the – it is speaking – your Honour, could I just say the case has a number of aspects in relation to section 118. One of them is the question overall of the effect of the 2020 amending Act, if I could call it that, on the procedures of other courts and of the legislation of other jurisdictions. Now, of course, there are questions. Each jurisdiction has its own powers and what one sees is in relation to the proceedings in the Supreme Court of Queensland that they are a reflection of one of the aspects of the case, not the whole of the case on section 118.

HER HONOUR: Mr Jackson, do you deny that there may be facts relevant to the question of whether this Court gives full faith and credit to the order ‑ ‑ ‑

MR JACKSON: Well, your Honour, one has to respond to that, with respect, at two levels. Level one is to say the issue has arisen particularly in relation to the circumstances that were before Justice Martin. The other is to say there is the more general question on the operation of the 2020 Act on the jurisdiction of other courts, be they Federal Courts or be they courts exercising federal jurisdiction, or they be courts exercising the kind of State jurisdiction.

HER HONOUR: Yes. Mr Palmer, do you have anything to add to what Mr Jackson has said on this issue?

MR PALMER: No, your Honour, I would adopt his submissions in relation to this particular issue.

HER HONOUR: Yes. Mr Solicitor.

MR THOMSON: Your Honour, can I first indicate that we read and rely upon the affidavit of Mr Cardell‑Oliver, which was sworn on 24 February 2021.

HER HONOUR: Yes.

MR THOMSON: It is important, perhaps, to say that in that affidavit, in paragraph 7, there is a history of the attempts to agree relevant facts, including the attempts to agree the underlying primary facts that had been found by Justice Martin and ‑ ‑ ‑

HER HONOUR: Mr Solicitor, I am sorry to interrupt you, but if that was all that was involved, I would be inclined to say Justice Martin’s reasons speak for themselves. That is all you need. But I am concerned that this matter is wider than that, that the factual foundation upon which the parties are relying in relation to the full faith and credit argument is in dispute and is yet to be determined by an appellate court, an intermediate appellate court.

MR THOMSON: Yes. Well, I would certainly appreciate the observations that your Honour has just made. Can I draw out a couple of distinctions that might assist in answering that in a more full way? The first is that Mr Jackson has said that he will accept the findings that have been made by Justice Martin, as I understood his submissions just now, but that is not what has happened previously, and so we had apprehended that those primary facts that have been found by Justice Martin are, in fact, in dispute, but they are in dispute because of the appeal, and they are in dispute only as between the parties to that matter. That is only related to International Minerals and Mineralogy.

Mr Palmer is not a party to that and, therefore, in relation to the matter that Mr Palmer raises, that is exactly the same, it would be necessary to have a factual foundation stated in the special case, at least in B52, and so the findings of fact in relation to the Queensland Supreme Court matter will not be binding, necessarily, or there might be some arguments about issue estoppel or res judicata and.....in relation to Mr Palmer, at the very least.

Can I then make this other distinction between the question about the existence, or the legal effect of an order which is made by a State court and the question of whether section 118 of the Constitution invests it with full faith and credit. What section 118 says is that it is necessary to give full faith and credit to judicial proceedings of every State.

Now, there is a necessary question as to whether an order is the product of a judicial proceeding, and that may involve questions of fact, and we have said, in our pleading, that to the extent that you have a border, which was made of an unlimited effect, ex parte and with no ability to apply to set it aside, that that is actually the product of an unfair proceeding which ought not to be given any faith and credit by section 118, and we referred to the case of International Finance for that proposition, which we mentioned in response to what has been said by my friend about Kable (No 2).

HER HONOUR: I suppose the alternative view, of course, is that full faith and credit is given to the order of Justice Martin setting the first order aside.

MR THOMSON: Precisely. That is another position that we have pleaded, that section 118 could not invest an order with any greater effect than the effect that it had through that period of a few months, and being subject to reconsideration and it is being set aside by Justice Martin when the time came for that to occur, and so that ‑ ‑ ‑

HER HONOUR: The order of Justice Martin is then challenged by the plaintiffs.

MR THOMSON: Yes.

HER HONOUR: The order setting aside.

MR THOMSON: Yes.

HER HONOUR: That is the position we are in now, it is under challenge.

MR THOMSON: Yes. So, to the extent that there does still need to be a factual foundation for the constitutional question about whether there is a judicial proceeding and whether the order was part of the judicial proceeding and the nature of the order, we apprehended that that was something that certainly needed facts before the Court. It will be of assistance, no doubt, if the determination of the Queensland Court of Appeal, and, perhaps, if that goes further, the High Court in relation to whether the order ought to be set aside, is made, but it may not be determinative.

For that reason this Court, having all of the same material before it about what was the basis of the order, and it is fairly slim material in the sense that it is the written and oral submissions, and the affidavit of Mr Bosma, which is still confidential and will not be released by the plaintiffs at the moment, if the Court has that, then it would have all of the factual foundation to work out whether or not section 118 could apply.

It is only the question about section 118 that is relevant to this Court because that is the basis upon which it is suggested that there is some unconstitutionality about the various provisions of the 2020 amending Act. If section 118 does not apply constitutionally, and there is no other problem with the 2020 amending Act in terms of the matters that are being raised about Chapter III and so forth, then it just becomes a question about the interaction of our State’s law, with an order made by the Queensland Supreme Court, but it is not a basis for challenging the constitutional validity of the 2020 amending Act.

So if the Court thinks, and this is something that we did mention in our submissions, that if we cannot have the factual foundation sorted out by the Court, then it will be necessary for the matter to be dealt with after the resolution of the appeals, at least to the extent of the matter that is raised by section 118.

HER HONOUR: Why would this Court enter upon the determination of facts when a court having jurisdiction is seized of the appeal?

MR THOMSON: Well, as I have said, your Honour, there is a slight difference in the type of questions that each court would consider. One is the question of the constitutional effect of section 118, the other is whether the order is liable to be set aside, and to that extent there is that distinction. We do not wish to make difficulties in terms of the hearing of the constitutional validity of the 2020 amending Act, but your Honour is quite right that there may well be a need to consider the basis upon which the Queensland Court of Appeal, and any other further appeal, deals with the enforcement order. If that is right, and the Court takes that view, then we have no difficulty about that.

HER HONOUR: Well, it comes down to this, does it not? The question for today, in relation to whether this matter can proceed, is whether the facts upon which the enforcement order was initially made are relevant to the question of whether the order is given full faith and credit constitutionally. That is the question, that is your – and your argument is that it is relevant.

MR THOMSON: Absolutely, and that is what is pleaded.

HER HONOUR: Has there been a reply on that point?

MR THOMSON: Yes, there is a reply, and the reply says that the enforcement of the – the only enforcement of the order that is relevant –
sorry. There is a reply. In relation to the question of enforcement the question is only whether the enforcement consists of seeking an award of damages, and in relation to paragraph 7A and 7B of the defence, the reply says:

the plaintiffs refer to the reasons for judgment and terms of the judgment of Martin J -

and then there is a non‑admission of the matters that we have pleaded in paragraphs 9 and 10 of the defence, which relate to the legal effect of the enforcement order.

HER HONOUR: Yes, thank you. Yes, Mr Jackson.

MR JACKSON: Your Honour, could I just say this, this case does not just involve section 118. There are a number of significant issues raised by it and they go well beyond section 118, well beyond what was done by Justice Martin. That is really a part of the case, but it is ‑ ‑ ‑

HER HONOUR: I am aware of that, Mr Jackson. I would have thought that this is, perhaps, one of the most insubstantial aspects of it.

MR JACKSON: Well, your Honour, your Honour is entitled to your Honour’s view. In terms of the quantitative look at the case, your Honour may well be right. Your Honour, we would not want the hearing of the matter that otherwise might take place by the Court, to go off simply because this material, if otherwise thought to be appropriate, was not before the Court. The difficulty, your Honour, is that it seems to be material - your Honour will have seen it, it is just the material that was used to obtain the first order.

Now, the judge in the first place has made findings about it. Those, we are – each party is, in effect, bound by those findings about it, unless set aside. But if it is set aside, then, in our submission, it may be that our case on this point of the matter ultimately fails, but equally it may be that it is successful to the extent to which that success is determinative of the validity of the Act, or part of the Act.

In our submission, your Honour, if one stands back one stage from paragraph 40 of the draft and asks why, really, what is advanced by looking at material that had a particular effect and which later has been - that effect has been held not to apply, but that is something that applies from the date when that second determination was given ‑ ‑ ‑

HER HONOUR: Mr Jackson, if the plaintiffs in your case, if their appeal to the Court of Appeal was successful you would be in a position to argue
that the first order had effect for all time. It is not limited to its present pleading that it was in existence for only some months.

MR JACKSON: Yes, we would, yes.

HER HONOUR: So the facts will change.

MR JACKSON: That is a possible change if the appeal in Queensland succeeds. So it gives it a bigger effect than it otherwise would have had, longer effect.

HER HONOUR: Why should this Court proceed to a hearing when the facts are not known?

MR JACKSON: Well, your Honour, the facts ‑ ‑ ‑

HER HONOUR: They are only tentative – given the appeals brought by your clients, they are under challenge.

MR JACKSON: Your Honour, the basic facts, I think, are not under challenge. There is a legal complexion to be given to them, and by that I mean the question whether there was a need, under the terms of the statute, to give notice - notification to the other side before applying for an order of this kind, and that is an argument, no doubt, to be made, and there is also the question whether the – sought to be raised by the other side, of whether the fact that the decisions of the arbitrator were, in some respects, expressed as declaratory means that they cannot - the Act cannot apply to them. But all those things are simply issues that arise, may arise in the appeal, but they are ones that have been decided, one way or another, by Justice Martin and, in our submission, there is nothing to stop this case going ahead, even if that material is before the Court.

HER HONOUR: Mr Palmer, do you have anything to add by way of reply?

MR PALMER: Well, your Honour, I think, having listened to the arguments from both sides, I am of the view, in relation to our case in B52, that we may not press - I may not press that particular claim if that could be helpful to the Court in having this matter resolved, and then the matter would merely be between those two parties who were party to it, your Honour.

HER HONOUR: Well, it remains in issue in the other matter, B54, and since the two cases are linked – “where they goest, you go”, so if there is going to be an adjournment, if there is an adjournment it would happen for both.

MR PALMER: I see. It would make – it could be advantageous, I think, to consider this further before abandoning the case because as Mr Jackson said there are a number of issues which need to be decided and it would be disappointing if those things could not be decided in a quick manner, your Honour.

HER HONOUR: If it were not for this issue, the only other issue that arises, arises in your matter in relation to the Hansard questions, and I would have put this matter over for the applications for the cases stated to be determined, and deal with that matter before a single Judge of this Court, but as you probably apprehend, unless I am persuaded that there is no – that the factual foundation for the first enforcement order is not a matter relevant to the question whether full faith and credit is invested in that order, I cannot see this matter proceeding any further.

MR PALMER: Well, your Honour, it may well be the matter that once Mr Jackson’s parties have reflected upon what you have said that they may not want to pursue that matter, that consequence, and we could move on to a case stated hearing.

HER HONOUR: Well, for the meantime, I am going to adjourn the matters generally, either pending the outcome of an appeal or, as you say, limitation of the issues in this matter to overcome the need for an adjournment generally. At the moment I am not persuaded that the factual foundation of the enforcement order is irrelevant to this issue, and at the moment, that factual foundation is under challenge. It is a matter before the Court of Appeal. The only other order in addition to those already made in relation to the pleading is that these two matters will be adjourned generally. There will be liberty to apply.

The Court will now adjourn.

AT 12.38 PM THE MATTER WAS ADJOURNED