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- Unreported Judgment
- Appeal Determined (QCA)
Parbery v QNI Metals Pty Ltd (No 4) QSC 176
SUPREME COURT OF QUEENSLAND
SC No 6593 of 2017
STEPHEN JAMES PARBERY AND MICHAEL ANDREW OWEN IN THEIR CAPACITIES AS LIQUIDATORS OF QUEENSLAND NICKEL PTY LTD (IN LIQ)
QUEENSLAND NICKEL PTY LTD (IN LIQ) ACN 009 842 068
JOHN RICHARD PARK, KELLY-ANNE LAVINA TRENFIELD & QUENTIN JAMES OLDE AS LIQUIDATORS OF QUEENSLAND NICKEL PTY LTD (IN LIQUIDATION)
QNI METALS PTY LTD
ACN 066 656 175
QNI RESOURCES PTY LTD
ACN 054 117 921
QUEENSLAND NICKEL SALES PTY LTD
ACN 009 872 566
CLIVE FREDERICK PALMER
CLIVE THEODORE MENSINK
IAN MAURICE FERGUSON
MINERALOGY PTY LTD
ACN 010 582 680
PALMER LEISURE AUSTRALIA PTY LTD
ACN 152 386 617
PALMER LEISURE COOLUM PTY LTD
ACN 146 828 122
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
First Defendant added by counterclaim
Second Defendant added by counterclaim
FRIDAY, 27 JULY 2018
BOND J: On 25 May 2018 I published my reasons for judgment in an application for freezing and an ancillary orders. As those reasons reveal, during the course of the hearing of that application, an application that I recuse myself was made and lost by Mr Palmer: see my reasons for judgment in Parbery v QNI Metals Pty Ltd  QSC 231. My decision in the judgment, handed down 25 May, is, I am informed, the subject of appeal. I do not know whether the appeal involves any submission that I erred in rejecting the then recusal application.
For some time now, today has been set as the day on which I would make a number of important decisions in relation to the management of the present litigation.
On 19 April 2018 I made an order that I would list the proceeding for further directions on a date to be fixed in the week commencing 23 July 2018. Shortly thereafter I notified the parties that day would be today. So for some months now the parties have known that on this day, at which time I had made a whole day available, I would deal with a number of important considerations, including the question of whether the proceeding should be set down for trial in mid-February next year or some other date, and a number of ancillary considerations.
As I have already mentioned, it transpired that a little over a month after making those timetabling orders and penning this date down, I decided the application for freezing orders. It seems that some of the defendants are likely to bring an application that I recuse myself from further management of this case and, effectively, from further involvement in this case, whether it be in terms of the case management or in any dispository hearings in this case. That possibility was first flagged in early June of this year.
On 20 June 2018 I caused my Associate to raise, by email, the question of when any recusal application was to be made. At that time it was not clear whether it definitely would be made or whether it was a possibility that an application was to be made. I posited that I could hear the application the week after 20 June or that it could be listed as the first matter to be addressed at the hearing on this day, that is, 27 July. I invited the parties to clarify.
Ultimately, no agreement was reached and I caused an email to be sent on 26 June that I would deal with any application to vacate the review hearing today if one was made but that, until then, my expectation was that parties would continue to comply with existing orders and directions, including that there would be a review hearing on 27 July.
An application is made on behalf of all of the defendants that I should make the following directions in relation to a recusal application:
1. If any party intends to make an application for recusal of Bond J (“recusal application”) that party must file and serve the recusal application not later than 7 August, 2018.
2. Any material in support of the recusal applications must be filed by 14 August, 2018.
3. If any party intends to oppose the recusal application, they file and serve any responsive material by 21 August, 2018.
4. The applicant for the recusal application file and serve an outline of submissions by 28 August 2018.
5. Any party opposing the recusal application file and serve an outline of submissions by 4 September 2018.
6. The application for recusal be heard on the first available date after 4 September, 2018.
In support of that application the defendants rely on affidavit of Mr Palmer sworn 20 July 2018, who describes the steps which were taken after I published my reasons for judgment on 25 May. He deposed, amongst other things:
11. The defendants have provided instructions to seek advice on a recusal application for Bond, J to be recused from the proceedings and its case management.
12. On 25 June 2018, I caused correspondence to be sent to KWM and HWLE regarding the filing of an appeal of the 25 May 2018 orders of Bond J and advising of my intention to bring such a recusal application by no later than 7 August 2018. Annexed hereto and marked as exhibit “CFP-181” are copies of the correspondence.
13. Relevant advices regarding the recusal could not be received from counsel until 21st July 2018.
14. The body of advice indicates merit for an application to be made for a recusal application. This advice is intended to be despatched overseas to the defendants that are abroad.
15. The defendants shall require 7 days to consider the advices.
16. No further steps should be taken in these proceedings should be taken until the recusal application is heard and determined.
17. The following correspondence has been exchanged between myself and KWM:
27 June 2018
Letter King & Wood Mallesons to Clive Palmer
2 July 2018
Letter Clive Palmer to King & Wood Mallesons
5 July 2018
Letter King & Wood Mallesons to Clive Palmer
18 July 2018
King & Wood Mallesons to Clive Palmer
20 July 2018
Letter Clive Palmer to King & Wood Mallesons
I have before me material which reveals the parties’ attitude to many of the considerations which are listed to be dealt with by way of case management today. It is fair to say that the attitude of the defendants is nothing at all should occur until after the recusal applications are heard. It also seems that there is some ambiguity as to whether it is certain that a recusal application will be made. That ambiguity derives from some observations made by Mr Palmer in submissions to me. Nevertheless, counsel on behalf of the defendant has said that it is likely that a recusal application will be made.
It is said that if I proceed to deal with the matters for direction today and an application for recusal is made and I am persuaded that I should not continue further in the case, that any directions that I will make today will be wasted. To test that proposition, one important consideration that I will deal with today is whether the matter should be set down for trial next year. Let it be assumed for the sake of argument that I am persuade so to do. That I set the matter down for trial at some time next year before me, but am subsequently persuaded that I should recuse myself, does not necessarily mean that that direction will be wasted or, indeed, that the trial could not proceed on the date as scheduled. The most likely course would be that some other judge would be scheduled to handle the case. It might be, of course, that that other judge needs to hear and make further timetabling considerations. But I am not persuaded that even if a recusal application is made and I am persuaded that my duty lies in recusing myself, that any decisions I make as to case management are wasted.
Logically, of course, if there is merit in the notion that I recuse myself from case management decisions, that argument should be put before me today to seek to persuade me not to continue to embark upon case management today. The possibility that I will see my duty as requiring me so to do was well flagged in emails. No such application was brought.
I conclude that I will not accede to the argument advanced by the defendants that nothing should be determined or heard until the recusal applications are heard. That said, in light of the intimation by the defendants that an application is likely to be made, I see no harm in making directions for the sensible management of the application and I will now proceed to hear what directions I should make.
- Published Case Name:
Parbery v QNI Metals Pty Ltd
- Shortened Case Name:
Parbery v QNI Metals Pty Ltd (No 4)
 QSC 176
27 Jul 2018
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QSC 231||17 Oct 2017||Application by defendant Mr Palmer for Bond J to recuse himself; application for an adjournment of the plaintiffs' application for a freezing order; both applications dismissed: Bond J.|
|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 213||17 Sep 2018||Application that Bond J recuse himself granted; proceedings transferred to Jackson J and other ancillary orders: 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.|
|Primary Judgment|| QSC 276||21 Nov 2018||Defendants' applications to vacate orders made in  QSC 176 and  QSC 180 dismissed in substance; extended times for directions for discovery and evidence made: Jackson J.|
|Primary Judgment|| QSC 48||11 Mar 2019||Defendants' application to increases the scope of disclosure and for extensions of time for the delivery of lay and expert evidence dismissed: Jackson J.|
|Primary Judgment|| QSC 207||23 Aug 2019||First, second, seventh, fifteenth, sixteenth and twenty-second defendants' application for either a permanent stay of this proceeding as an abuse of the process of the court or a stay pending the final determination of proceeding BS13947/18: application dismissed: Mullins J.|
|Primary Judgment|| QSC 143||03 Jun 2020||Plaintiffs' claims against the seventh defendant, Mineralogy Pty Ltd, to recover alleged funds loaned from Queensland Nickel Pty Ltd to Mineralogy Pty Ltd dismissed; declared that various transactions entered into by Queensland Nickel Pty Ltd are voidable under s 558FE of the Corporations Act 2001 (Cth) (as uncommercial transactions) together with declaratory relief that the transactions are void ab initio: Mullins 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.|
|Notice of Appeal Filed||File Number: Appeal 11834/17||10 Nov 2017||Appeal from  QSC 231|
|Notice of Appeal Filed||File Number: Appeal 7119/20||30 Jun 2020||Appeal from  QSC 143.|
|Appeal Discontinued (QCA)||File Number: Appeal 11834/17||22 Feb 2018||Appeal from  QSC 231 dismissed by consent.|
|Appeal Determined (QCA)|| QCA 268||12 Oct 2018||Costs judgment from fourth defendant's application to stay certain orders ( QSC 176;  QSC 178) that was earlier dismissed (after having been abandoned one day prior): Morrison JA.|
|Appeal Determined (QCA)|| QCA 302||05 Nov 2018||Appeals from  QSC 178 and  QSC 213 dismissed with costs: Fraser and Gotterson JJA and Boddice J.|
|Appeal Determined (QCA)|| QCA 324||20 Nov 2018||Costs judgment from defendants' application to stay certain orders  QSC 125 that was earlier dismissed by consent: Gotterson JA.|
|Appeal Determined (QCA)|| QCA 27||22 Feb 2019||Appeals from  QSC 107 (freezing orders) dismissed: Fraser and Gotterson and McMurdo JJA.|