- Unreported Judgment
SUPREME COURT OF QUEENSLAND
Parbery & Ors v QNI Metals & Ors  QSC 245
STEPHEN JAMES PARBERY AND MICHAEL ANDREW OWEN IN THEIR CAPACITIES AS LIQUIDATORS OF QUEENSLAND NICKEL PTY LTD (IN LIQ) ACN 009 842 068
QUEENSLAND NICKEL PTY LTD (IN LIQ)
JOHN RICHARD PARK, KELLY-ANNE LAVINA TRENFIELD & QUENTIN JAMES OLDE AS LIQUIDATORS OF QUEENSLAND NICKEL PTY LTD (IN LIQ) ACN 009 842 068
QNI METALS PTY LTD ACN 066 656 175
QNI RESOURCES PTY LTD ACN 054 117 921
QUEENSLAND NICKEL SALES PTY LTD
CLIVE FREDERICK PALMER
CLIVE THEODORE MENSINK
IAN MAURICE FERGUSON
MINERALOGY PTY LTD ACN 010 582 680
PALMER LEISURE AUSTRALIA PTY LTD
PALMER LEISURE COOLUM PTY LTD
FAIRWAY COAL PTY LTD ACN 127 220 642
CART PROVIDER PTY LTD ACN 119 455 837
COEUR DE LION INVESTMENTS PTY LTD ACN 006 334 872
COEUR DE LION HOLDINGS PTY LTD ACN 003 209 934
CLOSERIDGE PTY LTD ACN 010 560 157
WARATAH COAL PTY LTD ACN 114 165 669
CHINA FIRST PTY LTD ACN 135 588 411
COLD MOUNTAIN STUD PTY LTD ACN 119 455 248
ALEXANDAR GUEORGUIEV SOKOLOV
SCI LE COEUR DE L’OCEAN
MARCUS WILLIAM AYRES
SC No 6593 of 2017
Applications filed on 19 October 2018 by the defendants except the twentieth and twenty-first defendants (CFI 379 and CFI 382)
DELIVERED EX TEMPORE ON:
26 October 2018
26 October 2018
The order of the court is that:
K Byrne for the defendants except the fourth, twentieth and twenty-first defendants
Fourth defendant in person
T Sullivan QC and A Rae for the plaintiffs
Alexander Law for the defendants except the fourth, twentieth and twenty-first defendants
Sophocles Lawyers for the second and seventh defendants
King & Wood Mallesons and HWL Ebsworth for the plaintiffs
These two applications are by the defendants except the twentieth and twenty-first defendants for orders that include an order to adjourn the applications filed by the same defendants in relation to disclosure, directions and vacation of the trial dates.
The applications for disclosure, directions and vacation of the trial dates were filed on 25 September 2018 and 17 October 2018. On 2 October 2018, directions were made for their progress and they were ordered to be heard today.
The basis of the present applications to adjourn the hearing of those applications is that on 19 October 2018, the fourth defendant and the other defendants (except the twentieth and twenty-first defendants) filed separate applications that I “be recused from any further involvement in this proceeding”.
When filed, the recusal applications did not have a return date. On 22 October 2018, I offered to hear the recusal applications on 25 October 2018, but the applicants were not in a position to do so and nor did the respondents seek that order. I directed that the recusal applications be returnable today for directions.
Because the application for an adjournment of the hearing of today’s applications is opposed, it is necessary to consider the grounds of the proposed application for adjournment. That should only be done to the extent necessary to decide whether today’s applications should proceed.
Grounds of the recusal applications
The recusal applications are made on overlapping, but not coterminous grounds. The grounds raised by the fourth defendant are more extensive and may be summarised as follows. Broadly speaking, I will follow the structure of his submissions.
First, in 2015, I was the trial judge in the proceeding now reported as Sino Iron Pty Ltd v Palmer (No 3)  2 Qd R 574. The fourth defendant submits that findings I made in that case give rise to a reasonable apprehension of bias, because the findings are relevant to the “credit” of the fourth defendant, which will be an issue at the trial of this proceeding. See paragraphs 6 to 47 of the fourth defendant’s submissions filed on 19 October 2018 which I will call the fourth defendant’s first written submissions.
Second, the fourth defendant submits that “emails and discussions between judges regarding the fourth defendant and related entities” give rise to a reasonable apprehension of bias by me. See paragraphs 48 to 64 of the fourth defendant’s first written submissions.
Third, the fourth defendant submits that discussions between myself and Bond J as to my becoming the judge to manage this proceeding, in the event that Bond J recused himself, give rise to a reasonable apprehension of bias by me. See paragraphs 65 to 69 of the fourth defendant’s first written submissions.
Fourth, the fourth defendant submits that my refusal on 2 October 2018 to permit the fourth defendant to appear by a lawyer who had not filed a notice of appointment of solicitor and who did not act for him in the proceeding, otherwise gives rise to a reasonable apprehension of bias by me. See paragraphs 70 to 79 of the fourth defendant’s first written submissions.
Fifth, the fourth defendant submits that my “previous dealings” with members of Hall Chadwick give rise to a reasonable apprehension of bias by me. See paragraphs 80 to 88 of the fourth defendant’s first written submissions.
Sixth, the fourth defendant also says in his affidavit filed in support of the application that the fact that I am a friend of Mark McIvor gives rise to a reasonable apprehension of bias by me. See paragraph 89 of the fourth defendant’s first written submissions.
The other applying defendants make their application only on the first ground relied upon by the fourth defendant.
Seventh, the fourth defendant says that in another case, Mineralogy Pty Ltd v BGP Geoexplorer Pte Ltd  QSC 18 and Mineralogy Pty Ltd v BGP Geoexplorer Pte Ltd  QSC 219, I made findings about the seventh defendant’s conduct of the interlocutory processes in the proceeding that give rise to a reasonable apprehension of bias by me. See paragraphs 30(b) and 30(c) of the fourth defendant’s supplementary submissions.
Eighth, the fourth defendant also alleges actual bias against me. See paragraph 3 of the fourth defendant’s supplementary submissions.
First and fifth grounds
As to the first and fifth grounds, when the recusal applications were mentioned on 22 October 2018, I also expressly raised the point that there may be a distinction to be drawn between the question whether I should hear the trial of the proceeding as opposed to hear the applications to manage the proceeding up to the point of trial. The distinction is relevant to the present applications to adjourn the hearing of the disclosure, directions and vacation of trial date applications
The first and fifth grounds of the fourth defendant’s recusal application, and that is the only ground of the other defendants’ recusal application, relate to whether the hypothetical lay observer would have a reasonable apprehension of bias upon my consideration of the credit of Mr Palmer as a witness or the credit or credibility of Mr Albarran as a witness at the trial of the proceeding. For present purposes, I will assume that they will be called as witnesses at the trial.
If those grounds did raise a reasonable apprehension of bias, that apprehension is not one that would preclude me from hearing applications in the management of the case that do not involve the credibility of either gentleman as a witness. The applications listed for hearing today for disclosure, directions and vacation of the trial dates do not involve any question on the credibility of either of those witnesses.
As to the second ground of Mr Palmer’s application, on 30 August 2017, Mineralogy Pty Ltd made an application on the last day of the trial of another proceeding, BGP Explorer Pte Ltd v Mineralogy Pty Ltd that I should recuse myself on the same ground of apparent bias. On that day I refused the application and gave extemporaneous reasons. No appeal was made by Mineralogy Pty Ltd from that decision to the best of my knowledge. I proceeded to decide the case. The judgment is BGP Explorer Pte Ltd v Mineralogy Pty Ltd  QSC 219. An appeal from my judgment to the Court of Appeal was brought by Mineralogy Pty Ltd. The appeal was dismissed. The judgment is Mineralogy Pty Ltd v BGP Geoexplorer Pte Ltd  QCA 174. In other words, the same ground of objection to my hearing a case on the ground of apparent bias has been previously made to me by Mineralogy Pty Ltd and dismissed.
The same ground of appeal has also been raised by the defendants in the current proceeding before Bond J as a basis of recusal and he, too, ordered that the application on that ground be dismissed. There may have been an appeal from that order, but it was either dismissed or withdrawn.
The fourth defendant’s prospects of success on that ground of his application are such that I should not further consider it, in my view, unless one needs to.
As to Mr Palmer’s third ground, it is based on the assertion that because I was assigned this proceeding when Bond J recused himself from hearing it, there have been discussions between myself and Bond J as to the manner in which the fourth defendant has conducted himself, in this proceeding, that have affected my views about the fourth defendant to an extent which give rise to a reasonable apprehension of bias.
There is no evidence of such discussions in any of the material filed. Of course, if I had formed any views about the fourth defendant which would prevent me from hearing a proceeding that involved him on its merits and without prejudice or favour in relation to him, I would be duty bound to recuse myself. I have not done so because I do not have any such view.
The fourth defendant's prospects of success on this ground are not, in my view, something which should be further considered at this stage.
As to the fourth ground of the fourth defendant’s application for recusal, the sting of the submissions made seems to be that because on 2 October 2018 and again on 8 October 2018, I refused to permit the fourth defendant to appear by lawyers who had not entered a notice of appointment as solicitors acting for Mr Palmer or who were not instructed by such solicitors and were not acting on a direct access brief from him, that the hypothetical lay observer will have a reasonable apprehension of bias on my part.
The rules of the court do not permit an individual who is a party to a proceeding to appear by lawyer who has not filed a notice of appearance or notice of appointment as a solicitor (or, if a barrister, is not acting on a direct access brief in accordance with the rules and the practice directions that apply). The court has power to grant leave, in an appropriate case.
The circumstances in which the lawyers who sought to appear for the fourth defendant were denied leave on 2 October and 8 October appear by record.
One of the arguments is that a reasonable apprehension of bias arises because I used the word “guise” on 2 October 2018 when referring to the fourth defendant’s self-representation. That argument may proceed from a misunderstanding as to the scope of the ordinary dictionary meanings of the word “guise”, but in my view the fourth defendant's prospects of success on this ground of his application should not be further considered at this stage.
The sixth ground of the recusal application advanced by the fourth defendant is based on the fact of my friendship with Mr McIvor. The fourth defendant says in his affidavit, in effect, that Mr McIvor and he are not friends and have clashed since childhood. He says that as a friend of Mr McIvor, I must have been told things about the fourth defendant that will have affected my views about the fourth defendant to an extent of a reasonable apprehension of bias.
As in the case of the suggestion of things told to me by Bond J, there is no evidence of any such communication to me by Mr McIvor. I repeat that had I formed any view of the fourth defendant which would prevent me from hearing a proceeding that involved him on its merits and without prejudice or favour in relation to him, I would be duty bound to recuse myself.
In my view, it is not appropriate to say any more about the fourth defendant's prospects of success on this ground of his application.
As to the seventh ground of the fourth defendant's application, the findings that I made in relation to the conduct of the interlocutory processes in the proceeding that are said to give rise to a reasonable apprehension of bias by me in the Mineralogy Pty Ltd v BGP Geoexplorer case are a matter of record. It is not appropriate that I should say anything further about them at this stage.
As to the eighth ground, in any case of actual bias, in my view, it is critical that the matter be heard at once, so no possible prejudice to the party alleging the bias ensues.
In the view I take of the matters that have been raised by the applicants for a recusal order, the question whether I should make orders and further hear the disclosure directions and vacation of trial dates applications is problematic. Once these applications for recusal have been presented on the grounds set out, it is almost impossible to proceed, particularly in the face of an allegation of actual bias, in a way that is free of relevant risk to the parties of wasting further costs and time.
Nevertheless, it also remains critical that the possibility of the applications not succeeding, or not succeeding in full, should not be made pointless because the time that is lost in deciding the applications for recusal so prejudices the time available for the pre‑trial steps and the trial proceeding on the appointed dates that the application for recusal itself achieves the object of vacating the trial dates.
In those circumstances, in my view, the appropriate way to proceed is to direct that the recusal applications hearing commences instanter, on the basis that the applicants for orders for recusal can make their submissions today and the time today will not be lost. Second, Mr Palmer has indicated that he may wish to file further evidence in relation to his application for recusal, or the grounds of that application, based on information he has received that I have made adverse statements about him to somebody or other who is not yet identified. It seems to me that Mr Palmer should have an opportunity to put in such affidavit material. But in the context that the applications must be resolved promptly for the reasons that I have already given.
Accordingly, what I propose to do is to allow him leave to file further affidavits in support of his application until the day before the appointed final hearing of the balance of the application for recusal. The procedure which I propose to adopt will therefore follow this outline. The applicants for recusal will make their submissions on the affidavit material which is otherwise complete, and in accordance with their detailed written submissions that have been filed, today. On Tuesday of next week the plaintiffs, who are the respondents, in effect, to the application, are to both file and serve any material, and to file their submissions in response, if any, and that the further hearing of the applications will then be adjourned after the completion of today’s proceeding, until 10 am on Thursday of next week, at which time the hearing can be concluded, and following which I will make a decision on the recusal applications as soon as I may.
- Published Case Name:
Parbery & Ors v QNI Metals & Ors
- Shortened Case Name:
Parbery v QNI Metals Pty Ltd (No 9)
 QSC 245
26 Oct 2018
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QSC 107||25 May 2018||Upon undertakings made by the Commonwealth, and the special purpose liquidators, freezing orders made with respect to the first, second, fourth, seventh, eighth, ninth, tenth, eleventh, twelfth, fourteenth and fifteenth defendants: Bond J.|
|Primary Judgment|| QSC 125||25 May 2018||Application to stay orders made in  QSC 107 for 21 days dismissed, save for orders 16 and 17 which are stayed until further order: Bond J.|
|Primary Judgment|| QSC 141||11 Jun 2018||Stay of operation of orders 16 and 17 ordered 25 May 2018 discharged; order 16 set aside and in lieu thereof order that each defendant must swear an affidavit setting out their assets and details about those assets: Bond J.|
|Primary Judgment|| QSC 176||27 Jul 2018||Defendants' agitation that nothing should be determined until a proposed recusal application heard and determined rejected: Bond J.|
|Primary Judgment|| QSC 177||27 Jul 2018||Plaintiffs' application for disclosure adjourned to 3 August 2018: Bond J.|
|Primary Judgment|| QSC 178||03 Aug 2018||Defendants' application for a stay of orders dismissed: Bond J.|
|Primary Judgment|| QSC 180||03 Aug 2018||Plaintiffs' application for disclosure granted: Bond J.|
|Primary Judgment|| QSC 240||22 Oct 2018||Defendants' application (except the fourth, twentieth and twenty-first defendants) for leave to proceed with the counterclaim dismissed (except counterclaim not struck through); plaintiffs' application for defence and counterclaim to be struck out granted with leave; defendants' application for strike-out of the consolidated statement of claim allowed in part; hearing adjourned to a date to be fixed; costs reserved: Jackson J.|
|Primary Judgment|| QSC 245||26 Oct 2018||Defendants' applications for recusal of Jackson J filed 19 October 2018 commence instanter; applications for recusal of Jackson J be adjourned to 1 November 2018 and ancillary directions: Jackson J.|
|Primary Judgment|| QSC 249||05 Nov 2018||Application that Jackson J recuse himself from hearing the trial of the proceeding granted on the ground of apprehended bias (dismissed on the ground of actual bias); application that Jackson J recuse himself from taking any further part in the proceeding, including any interlocutory applications, dismissed: Jackson J.|
|QCA Interlocutory Judgment|| QCA 139||26 Jun 2018||Fourth defendant's application to stay orders made in  QSC 107 allowed in part and otherwise dismissed: Gotterson JA.|
|QCA Interlocutory Judgment|| QCA 287||23 Oct 2018||Application for a stay of the orders made by Bond J in  QSC 180 dismissed: Philippides JA.|