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- Unreported Judgment
SUPREME COURT OF QUEENSLAND
QNI Metals Pty Ltd v Vannin Capital Operations Ltd  QSC 238
QNI METALS PTY LTD
ACN 066 656 175
QNI RESOURCES PTY LTD
ACN 054 117 921
VANNIN CAPITAL OPERATIONS LIMITED
COMPANY NUMBER C74594
ABN 75 304 286 095
JOHN RICHARD PARK, KELLY-ANNE LAVINA TRENFIELD AS LIQUIDATORS OF QUEENSLAND NICKEL PTY LTD (IN LIQUIDATION) (ACN 009 842 068)
QUEENSLAND NICKEL PTY LTD (IN LIQUIDATION)
ACN 009 842 068
HWL EBSWORTH LAWYERS
BS 6476 of 2020
1 July 2020
1 July 2020
The application is dismissed.
COURTS AND JUDGES – JUDGES – DISQUALIFICATION FOR INTEREST OR BIAS – PARTICULAR GROUNDS – PREJUDGMENT – where the presiding judge previously recused himself from hearing the trial of a related proceeding on the ground of apprehended bias – where the apprehended bias was said to have arisen from an adverse assessment by the presiding judge of the credibility of one of the directors of the defendants in that proceeding, who are the present applicants – where the applicants apply in the present proceeding for orders requiring the respondents to depose to the information passing between themselves and senior counsel regarding the subject matter in dispute – where the present application does not involve any assessment of credibility of the relevant director – whether a fair-minded lay observer might reasonably apprehend that the presiding judge might not determine the issues in accordance with their legal and factual merits
Parbery v QNI Metals Pty Ltd  QSC 107, cited
Parbery v QNI Metals Pty Ltd  QSC 213, applied
Parbery v QNI Metals Pty Ltd  QSC 143, cited
P Dunning QC, with M Karam and K Byrne, for the applicants
J C Bell QC, with A I O’Brien, for the first respondent
G R Coveney for the second respondent
J D McKenna QC, with C G C Curtis, for the third to fifth respondents
Robinson Nielsen for the applicants
Ashurst for the first and second respondents
HWL Ebsworth for the third to fifth respondents
- There is a long procedural history which forms the background of the relationship between the litigants who appear before me today. It is set out in my decision in Parbery v QNI Metals Pty Ltd  QSC 107, which was my freezing order judgment; in Parbery v QNI Metals Pty Ltd  QSC 213, which was my decision to recuse myself from further involvement in that litigation; and, ultimately, in Parbery v QNI Metals Pty Ltd  QSC 143, which was Justice Mullins’ recent decision on the merits of that underlying litigation.
- There had been, it seems, a settlement as between some of the parties. The consequence of that settlement and orders made in relation to it have the result that Vannin, which is the first respondent before me, is litigating its debt claim against Queensland Nickel, and QNI Metals and QNI Resources – who are the first and second applicants before me – in effect have the conduct of Queensland Nickel’s defence of Vannin’s debt claim.
- A dispute arose in connection with the way in which that debt claim was being prosecuted when senior counsel, who had appeared on behalf of Queensland Nickel and its special purpose liquidators, sought to appear on behalf of Vannin in proceeding against Queensland Nickel. There is evidence before me that Queensland Nickel consented to that occurrence and that it asserted at the time that consent was given, and asserts in the proceeding before me today, that that consent was fully informed.
- The first and second applicants say that Queensland Nickel could not, in effect, permit senior counsel who had acted for it now to act against it. They point to what they say are the many occasions for information to have flowed between Queensland Nickel and that senior counsel and the solicitors for Vannin, and for that information flow to have communicated confidential information. They assert that there are a number of rights that must have been infringed by information passing between Queensland Nickel, on the one hand, to Vannin and its solicitors, on the other, possibly involving the mechanism of that senior counsel.
- That, by way of an imperfect precis, leads to the principal application before me today.
- By originating application, QNI Metals and QNI Resources seek against the five respondents the following orders:
Within 14 days, each of the respondents serve on the applicants an affidavit:
- (a)deposing to the information passing between the first respondent and second respondent (on the one side) and the third respondent (whether itself, its servants, agents or otherwise howsoever), fourth respondents and fifth respondent (on the other side), since 3 August 2019 to the date of these orders, in respect of the Subject Matters; …
- (b)deposing to the information passing between the respondents (on the one side) and Mr Shane Doyle QC (on the other side) since 3 August 2019 to the date of these orders, in respect of the Subject Matters.
- I observe that the “Subject Matters” broadly relate to the background justifying the debt that Vannin seeks to prosecute against Queensland Nickel, and, further, that the day of 3 August 2019 referred to in that order is the date on which there was a settlement agreement in relation to the proceedings that Justice Mullins determined.
- Although I have read written submissions from each side in relation to whether the applicants should have the orders they seek on the originating application, this judgment does not relate to that yet because I have not heard full argument on that application yet. This judgment relates to the applicants’ application that I should recuse myself from hearing the originating application on the grounds of apprehended bias.
- Detailed written submissions in support of that application were provided to me from the applicants and I’ve read them. Similarly, I have read the detailed written submissions provided on behalf of the first respondent opposing the recusal order. They were adopted, as were the oral submissions developing them, by the other respondents.
- The law sufficient for analysing the present recusal application is sufficiently set out in my decision in Parbery v QNI Metals Pty Ltd  QSC 213. The two steps required are those set out in paragraph 30 of that judgment:
 The application of the test requires two steps:
- (a)first, the identification of what it is said might lead the judge to decide the question otherwise than on its legal and factual merits; and
- (b)second, the articulation of the logical connection between that matter and the risk that the judge will decide the matter otherwise than on its legal and factual merits.
- The “question” which is adverted to in that paragraph must, in the present context, be regarded as whether the applicants are entitled to the relief they seek on the originating application.
- The submissions of the applicants identified the considerations that are said to satisfy that first step. Essentially, there are two bases adverted to, and they were developed in oral argument.
- The first is that in my judgment on the freezing order, I made findings, the significance of which I analysed in my judgment on the previous recusal application. The fact of those findings and the approach I took to Mr Palmer, who is the person standing behind – ultimately, at least – the present applicants, it is said, might lead me to decide the questions before me on the originating application otherwise than on their legal and factual merits.
- The second is that the present originating application is ultimately related to the claim that Vannin is prosecuting against Queensland Nickel, and in the course of, amongst many other claims advanced and dealt with in the freezing order application, I must be taken to have expressed the view that there was a good arguable case in respect of the existence of that debt.
- I’m afraid that I’m unable to see that there is any basis in either of those matters that justifies the current recusal application. The current originating application has no credit issues in it. Mr Palmer has not given any evidence in it. It will resolve to a question of whether the present applicants can establish rights of the nature of that which they seek to assert exist, and if they can, whether the relief that they seek is an appropriate response to those rights and whatever risk of harm might exist in relation to those rights. Legal and equitable issues are involved. Nothing whatsoever to do with the view that I formed about Mr Palmer’s evidence on the freezing order application is involved.
- Although this was denied by senior counsel on behalf of the applicants on the recusal application before me today, accepting his submissions would be tantamount to my finding that a fair-minded lay observer would think that, because I found Mr Palmer’s evidence to be implausible in the way that I explained in the freezing order application and the significance of which I analysed in the recusal order judgment, I might not decide a matter involving any of his companies in accordance with their legal and factual merits. The notion finds expression in the sentence in paragraph 36 of the written submissions that:
The hypothetical bystander might conclude that Bond J might remain of the view that the Applicants’ credibility is tainted, and they are parties who engage in conduct which is a ‘startling affront to justice’.
- Well, the applicants are corporations. They don’t have credibility. They act by natural persons who may or may not have credibility. The only natural person about whose plausibility on different issues I expressed some views was Mr Palmer.
- Applying the touchstone of the fair-minded lay observer having the characteristics that I’ve explained in my previous recusal judgment, I’m unable to form the view that such a person might have the reasonable apprehension that would be requisite to accede to the recusal application.
- I refuse the application that I ought recuse myself from hearing the originating application before me today.
- Published Case Name:
QNI Metals Pty Ltd v Vannin Capital Operations Ltd
- Shortened Case Name:
QNI Metals Pty Ltd v Vannin Capital Operations Ltd
 QSC 238
01 Jul 2020