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QNI Metals Pty Ltd v Vannin Capital Operations Ltd[2020] QSC 292

QNI Metals Pty Ltd v Vannin Capital Operations Ltd[2020] QSC 292

SUPREME COURT OF QUEENSLAND

CITATION:

QNI Metals Pty Ltd v Vannin Capital Operations Ltd [2020] QSC 292

PARTIES:

QNI METALS PTY LTD

ACN 066 656 175

(first applicant)

QNI RESOURCES PTY LTD

ACN 054 117 921

(second applicant)

v

VANNIN CAPITAL OPERATIONS LIMITED

COMPANY NUMBER C74594

(first respondent)

ASHURST AUSTRALIA

ABN 75 304 286 095

(second respondent)

JOHN RICHARD PARK, KELLY-ANNE LAVINA TRENFIELD AS LIQUIDATORS OF QUEENSLAND NICKEL PTY LTD (IN LIQUIDATION) (ACN 009 842 068)

(third respondent) 

QUEENSLAND NICKEL PTY LTD (IN LIQUIDATION)

ACN 009 842 068

(fourth respondent)

HWL EBSWORTH LAWYERS

(fifth respondent)

FILE NO/S:

BS 6476 of 2020

DIVISION:

Trial Division

PROCEEDING:

Originating Application

DELIVERED ON:

22 September 2020

DELIVERED AT:

Brisbane

HEARING DATE:

1 July 2020; 29 July 2020

JUDGE:

Bond J

ORDER:

  1. The Applicants’ originating application is dismissed.
  2. I will hear the parties on costs.

CATCHWORDS:

EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – MANDATORY INJUNCTIONS – OTHER MATTERS – where the terms of a settlement deed and a consent order made in one proceeding required the applicants to indemnify the fourth respondent in respect of any liability it might have to the first respondent for a claim advanced in another proceeding – where the fourth respondent consented to its senior counsel in the first proceeding acting for the first respondent in the other proceeding – where the applicants alleged that the senior counsel must thereby have disclosed the fourth respondent’s confidential information to the first respondent – where the applicants contended they thereby have a right to have the order imposing the indemnity obligation set aside – whether the applicants are subrogated to the rights of the fourth respondent in relation to the potential disclosure of its confidential information to the first respondent – where the applicants seek orders requiring the respondents to depose as to their knowledge concerning information passing between themselves and senior counsel relating to the matters the subject of the proceeding – whether an injunction should be granted

EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INJUNCTIONS FOR PARTICULAR PURPOSES – IN AID OF A LEGAL RIGHT – where the applicants allege that the fourth respondent breached the terms of a settlement deed in one proceeding by consenting to its senior counsel in that proceeding acting for the first respondent in another proceeding – where the applicants allege that the fourth respondent breached the terms of a settlement deed by disclosing its confidential information to the first respondent – where the applicants rely on the equitable jurisdiction to order preliminary discovery in aid of alleged legal rights – whether the applicants established a sufficient evidentiary basis to justify ordering preliminary discovery in aid of alleged legal rights

PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT AND GENERAL STATUTORY POWERS – TO PREVENT ABUSE OF PROCESS – GENERALLY – where the applicants rely on the Court’s inherent jurisdiction to protect the integrity of its own processes – where the applicants allege unconscientious conduct by legal practitioners and liquidators which may frustrate the proper conduct of the applicants’ defence of a related proceeding – where the applicants were unable to establish that any information not already public or not already disclosed had been provided to the first respondent by officers of the Court – whether a prudent, sensible commercial person would infer any likelihood that the Court’s processes might be frustrated

AECI Australia Pty Ltd v Convey [2020] QSC 207, applied

Computershare Ltd v Perpetual Registrars Ltd (2000) 1 VR 626; [2000] VSC 139, considered

Idoport Pty Ltd v National Australia Bank Ltd [2004] NSWSC 695, considered

Mercantile Group (Europe) A.G. v Aiyela [1994] QB 366, considered

Morris v Ford Motor Co Ltd [1973] QB 792, considered

Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133, considered

Parbery v QNI Metals Pty Ltd (2018) 358 ALR 88; [2018] QSC 107, applied

Parbery v QNI Metals Pty Ltd [2020] QSC 143, cited

Re Pyne [1997] 1 Qd R 326, considered

Smethurst v Commissioner of Police (2020) 94 ALJR 502; [2020] HCA 14, cited

COUNSEL:

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

SOLICITORS:

Robinson Nielsen for the applicants

Ashurst for the first and second respondents

HWL Ebsworth for the third to fifth respondents

Introduction

  1. [1]
    By originating application filed on 17 June 2020, QNI Metals Pty Ltd and QNI Resources Pty Ltd (the Applicants) commenced the present proceeding against:
    1. (a)
      the first respondent, Vannin Capital Operations Limited (Vannin);
    2. (b)
      the second respondent, Vannin’s solicitors;
    3. (c)
      the fourth respondent, Queensland Nickel Pty Ltd (Queensland Nickel), which is a company in liquidation;
    4. (d)
      the third respondent, the liquidators of Queensland Nickel (the general purpose liquidators); and
    5. (e)
      the fifth respondent, the solicitors for Queensland Nickel and the general purpose liquidators.
  2. [2]
    The sole substantive claim for relief was for an order requiring each of the respondents to serve on the Applicants an affidavit deposing to that respondent’s knowledge concerning certain information passing between various identified people on particular identified topics. 
  3. [3]
    The Applicants contended that the Court has jurisdiction to make such an order on one or more of these bases:
    1. (a)
      equity’s exclusive jurisdiction to protect confidential information;
    2. (b)
      equity’s auxiliary jurisdiction in aid of the Applicants’ rights at law to enforce their rights in relation to a settlement deed, including rights arising from subrogation;
    3. (c)
      the Court’s inherent jurisdiction to protect the integrity of its own processes; and
    4. (d)
      the Court’s inherent jurisdiction to make orders for the inspection, detention, custody or preservation of property (namely, the confidential information), the existence of which is recognised by UCPR r 255.
  4. [4]
    The Applicants’ expressed purpose in seeking the Court’s exercise of such jurisdiction was for the purposes of pleading or assisting them in the prosecution of causes of action for:
    1. (a)
      breach of a settlement deed and setting aside court orders made pursuant to a settlement deed;
    2. (b)
      restraining a breach of confidence; or
    3. (c)
      restraining lawyers from acting against them in a particular proceeding.
  5. [5]
    The respondents contended that no sufficient evidentiary basis had been established for the exercise of any jurisdiction the Court might have to make orders such as those sought by the Applicants. 
  6. [6]
    For reasons which follow, I agree.  The originating application must be dismissed.

Background

  1. [7]
    For some years prior to early 2016, Queensland Nickel managed a nickel mining and refining joint venture in Queensland on behalf of the Applicants.  All three companies formed part of the business empire of Mr Clive Palmer.
  2. [8]
    Queensland Nickel was placed into voluntary administration on 18 January 2016.  On 22 April 2016, it became subject to a creditors’ voluntary winding up and the general purpose liquidators were appointed as its liquidators.   
  3. [9]
    On 30 June 2017, proceeding 6593/17 commenced in this Court.  It is convenient to refer to that proceeding as the Queensland Nickel proceeding.  The plaintiffs were Queensland Nickel, the general purpose liquidators and also its special purpose liquidators, being liquidators who had been appointed by order of the Federal Court.  The defendants to that proceeding were Mr Palmer, the Applicants and a number of other companies of which Mr Palmer was both a director and the ultimate beneficial owner.  Vannin had an interest in any recovery which might be made by Queensland Nickel in the proceeding because, on 13 September 2016, Vannin had entered into a litigation funding agreement with the general purpose liquidators for the purpose of funding the prosecution of the proceeding.
  4. [10]
    Amongst other allegations which Queensland Nickel advanced in the Queensland Nickel proceeding were allegations that it had incurred various liabilities for the benefit of the Applicants, that those liabilities remained unpaid, and that it was entitled to be indemnified against them.  Queensland Nickel claimed in excess of $200 million in respect of such unpaid liabilities as set out in schedule E to the plaintiffs’ statement of claim.  About $130 million was alleged to be owed to 134 third party creditors.
  5. [11]
    One such third party creditor was identified in Schedule E as “GE Capital Pty Ltd”.  GE Capital Pty Ltd was a misnomer for GE Commercial Australasia Pty Ltd (GE).  The liability which Queensland Nickel alleged it had to GE was its liability as a guarantor in respect of the indebtedness of Palmer Aviation Pty Ltd (Palmer Aviation) to GE under a finance arrangement[1] for the purchase of an aircraft.  Queensland Nickel alleged in the Queensland Nickel proceeding that the amount for which it was liable to GE (and in respect of which it sought indemnity from the Applicants) was $25,810,296.15.   It is convenient to refer to that alleged liability as the GE liability.
  6. [12]
    The Applicants’ defence in the Queensland Nickel proceeding did not separately respond to the allegation that Queensland Nickel was liable to GE for the GE liability.  Rather the allegation must be taken to have been intended to be encompassed by a general denial in respect of all the liabilities in schedule E founded on a plea that the Applicants had not had the opportunity to come to a concluded position on whether each of the alleged unpaid liabilities were properly incurred.  (There may have been an argument available to Queensland Nickel that, by operation of the UCPR, inadequacy of the pleaded response led to deemed admissions, but, as will appear, Queensland Nickel seems to have accepted in the Queensland Nickel proceeding that it had the burden of proving both the existence of the GE liability and its right to indemnity.)
  7. [13]
    In the meantime, in 2018, Vannin had commenced proceeding 13947/18 in this Court (the Vannin proceeding) against the Applicants, Palmer Aviation and Queensland Nickel in respect of the GE liability.  In that proceeding, Vannin contended that, by agreement entered into on or about 16 October 2018, Vannin had obtained an assignment from GE of all of its rights under or in respect of the facility agreement with Palmer Aviation, that GE had notified the relevant parties of the assignment, and that, accordingly, Vannin was the person to whom Queensland Nickel was liable at law for the GE liability.  Vannin also asserted that the Applicants were also personally liable to it for the amount of the GE liability.  Vannin claimed relief requiring payment.
  8. [14]
    The trial of the Queensland Nickel proceeding commenced before Mullins J on 16 July 2019.  By that time, the Vannin proceeding had not progressed significantly.
  9. [15]
    One of the barristers who acted on behalf of Queensland Nickel in the Queensland Nickel proceeding was Mr Doyle QC.  He had long formed part of the group of counsel so retained.  Amongst other topics canvassed in the plaintiffs’ lengthy written opening and in the oral opening conducted by him was how Queensland Nickel intended to prove the debts giving rise to the alleged $130 million liability to third party creditors.  Specific attention was paid in both the written and oral openings to the evidence which was said to demonstrate that Queensland Nickel was in fact liable to GE under its guarantee in respect of Palmer Aviation’s indebtedness to GE, and that the amount of the GE liability was $25,810,296.15.
  10. [16]
    On 3 August 2019, the parties to the Queensland Nickel proceeding reached a partial settlement of issues which existed between them and recorded that settlement in a deed bearing that date.  The trial of the Queensland Nickel proceeding continued in relation to issues not affected by the compromise.  The settlement deed relevantly provided as follows:
    1. (a)
      By cl 2.2, the parties to the deed were obliged to jointly apply for “Consent Orders”, a term defined by reference to the orders set out in schedule 1B to the deed.  The relevant[2] aspects of schedule 1B were:
      1. (By order 1) the Applicants would be ordered to pay to GE or Vannin the amount of any final money judgment which GE or Vannin obtained against Queensland Nickel within 28 days of being notified that such a judgment, not subject to a court ordered stay, had been entered.
      2. (By order 7) the Applicants would have leave to commence or continue proceedings (including by way of counterclaim) against Queensland Nickel in respect of any amounts which Queensland Nickel owed to GE or Vannin, but on terms that:
        1. Athe Applicants must indemnify Queensland Nickel in respect of any judgment obtained against it in, and its costs of, those proceedings;
        2. Bthey must not seek to enforce any judgment obtained in those proceedings against Queensland Nickel; and
        3. CQueensland Nickel was not required to take any active part in the proceedings and agreed to be bound by the determination made in those proceedings as to the extent of its liability, if any, to GE or Vannin as determined as between the Applicants on the one hand and GE or Vannin on the other, save as to costs.
    2. (b)
      By cl 2.1, the Applicants were obliged to pay certain monies into the trust account of the solicitors for the special purpose liquidators and they were obliged (after the Consent Orders were made) to pay other monies to a list of other creditors as listed in other schedules to the settlement deed.
    3. (c)
      By cl 2.3, cll 3 to 7 of the settlement deed inclusive had no effect and did not become operative until the Consent Orders had been made.
    4. (d)
      By cl 3, the Applicants authorised the solicitors for the special purpose liquidators to pay out the monies from their trust account to the Commonwealth and, once that occurred, the special purpose liquidators became obliged to procure a withdrawal of the relevant claim made by the Commonwealth and a release in respect of that claim.
    5. (e)
      By cll 4 to 6, the parties to the deed accepted various obligations to grant releases and to discontinue litigation in connection with the matters compromised.
    6. (f)
      By cl 7:

7.  [The Vannin proceeding] …

7.1  Consent Order Payment

The parties acknowledge that [the Applicants] are entitled to exercise all rights at law arising as a result of any Consent Order Payment the subject of the Consent Orders.

7.2  Further rights of [the Applicants]

In addition to the rights referred to in clause 7.1:

  1. (a)
    as to [the Vannin proceeding]:
  1. (i)
    the [special purpose liquidator] himself[3] whilst he is appointed as such and [Queensland Nickel] whilst the  [special purpose liquidator] is appointed as such, will not seek to take any step which impairs the conduct of any claims by or defences available to [the Applicants] in relation to [the Vannin proceeding] and will as far as permissible by the Court, if required to be a party to any such proceedings, enter only a submitting appearance and otherwise abide the outcome of the determination as between [the Applicants] (on the one hand) and Vannin (on the other) of the issues between them as concern the claims the subject of the Consent Order Payment, save as to costs; and
  1. (ii)
    [the Applicants] may do all acts as may be required or necessary for the purpose of defending or enforcing any rights or remedies or of obtaining relief or indemnity from any claims brought by [Vannin].
  1. (b)

7.3  

7.4  

  1. (g)
    By cl 8.7(a):

8.7 Further action

  1. (a)
    Each party must use reasonable efforts to do all things necessary or desirable to give full effect to this Deed.
  1. [17]
    I interpolate, into the present chronological recitation of background, two points in relation to the potential operation of cl 7, in light of events which have happened up to the date of this judgment:
    1. (a)
      First, “Consent Order Payment” was defined in cl 1 of the settlement deed to mean “the orders in paragraph [1] and [2] of the Consent Orders”.  So far as is presently relevant, that would mean a payment made to GE or Vannin of the amount of any final money judgment which GE or Vannin obtained against Queensland Nickel.  No such payment has been made because no such final judgment has been obtained.  Such a payment might occur if the Applicants paid the amount of a final judgment obtained by Vannin against them in the Vannin proceeding.  It follows that the rights of which cl 7.1 speaks have not yet arisen.
    2. (b)
      Second, by order of the Federal Court made on 15 October 2019, the special purpose liquidator was removed as special purpose liquidator of Queensland Nickel.  That occurred because his role as special purpose liquidator had come to an end.  It follows that from 15 October 2019 onwards, the special purpose liquidator was no longer “appointed as such” within the meaning of cl 7.2(a)(i).  It also follows that the time constraints imposed by the opening clause of cl 7.2(a)(i) (namely “the [special purpose liquidator] himself whilst he is appointed as such and [Queensland Nickel] whilst the [special purpose liquidator] is appointed as such”) could no longer be met.  Thus, from 15 October 2019, cl 7.2(a)(i) could no longer be regarded as imposing any obligation on either the special purpose liquidator or on Queensland Nickel. 
  2. [18]
    Pursuant to the terms of the compromise, on 5 August 2019, Mullins J made the consent orders as set out in schedule 1B of the settlement deed (referred to at [16](a) above), although the text of what had been order 7 in schedule 1B was reproduced as order 6 in the orders made by her Honour.[4]  It is convenient hereafter to refer to her Honour’s orders of 5 August 2019 as the Consent Orders.  They were relevantly in these terms:
  1. The Court orders that [the Applicants] pay to [GE or Vannin] (Claiming Creditor) the amount of any final money judgment obtained by that Claiming Creditor against [Queensland Nickel] which is not stayed by order of the court within 28 days of [Queensland Nickel] serving a written notification on [the Applicants] that such final money judgment not subject to a stay has been entered against [Queensland Nickel].

  1. [The Applicants] have leave to commence or continue proceedings (including by way of counterclaim) against [Queensland Nickel] in respect of amounts (if any) owed by [Queensland Nickel] to the Claiming Creditor, but on terms that:
  1. (a)
    [the Applicants] shall indemnify [Queensland Nickel] in respect of any judgment obtained against it in, and its costs of, those proceedings;
  1. (b)
    [the Applicants] may not seek to enforce any judgment obtained in those proceedings against [Queensland Nickel]; and
  1. (c)
    [Queensland Nickel]:
  1. (i)
    until further order, is not required to take any active part in the proceedings;
  1. (ii)
    otherwise agrees to be bound by the determination made in those proceedings as to the extent of its liability, if any, to the Claiming Creditor as determined as between [the Applicants] on the one hand and the Claiming Creditor on the other, save as to costs.
  1. [19]
    The Queensland Nickel proceeding continued before her Honour in relation to the remaining issues.  Judgment was reserved on 17 October 2019 and her Honour’s judgment was published on 3 June 2020.[5]
  2. [20]
    The presently relevant effect of the settlement deed and the Consent Orders made pursuant to its terms was that Queensland Nickel’s assertion of the existence of the GE liability in the Queensland Nickel proceeding and its claims for indemnity in respect of that liability were excised from that proceeding, presumably it being contemplated that any questions concerning that liability would be dealt with in the extant Vannin proceeding and/or any other proceedings commenced or continued by the Applicants against Queensland Nickel pursuant to the leave granted by Mullins J. 
  3. [21]
    That seems to be what has occurred.  On 5 December 2019, Boddice J made orders in the Vannin proceeding which, amongst other things, gave the Applicants leave to defend Vannin’s claim against Queensland Nickel; required the Applicants to indemnify Queensland Nickel against any adverse costs orders in the Vannin proceeding; and excused Queensland Nickel from further participation in the Vannin proceeding, save for making disclosure.  The result was that the Applicants had the conduct of their own defence to the Vannin proceeding and also the conduct of Queensland Nickel’s defence to the Vannin proceeding. On 29 January 2020, Boddice J made further orders in the Vannin proceeding which, amongst other things, granted Vannin leave to proceed against Queensland Nickel and ordered that the Applicants’ defence stand as the defence of Queensland Nickel.  In the Vannin proceeding, the Applicants deny that they or Queensland Nickel are liable for the GE liability.  And since the Applicants were given leave to defend Vannin’s claim against Queensland Nickel and their defence stands as that of Queensland Nickel, on the record in the Vannin proceeding, Queensland Nickel now denies that it is liable for the GE liability. 
  4. [22]
    Thus far, the events which have happened might be summarised in the following way.  In the Queensland Nickel proceeding, Queensland Nickel asserted the fact of the GE liability and claimed indemnity for it from the Applicants.  The Applicants did not accept that Queensland Nickel was liable in respect of the GE liability and did not accept any obligation to indemnify.  But that much of the Queensland Nickel proceeding was settled, in effect leaving the question of the existence of the GE liability to be fought out in the Vannin proceeding between Vannin on the one hand and the Applicants on the other, with Queensland Nickel having the benefit of an indemnity from the Applicants.  Subsequent orders in the Vannin proceeding excused Queensland Nickel from participation in that proceeding and left the Applicants with the conduct of the defence to Vannin’s assertion of the existence of the GE liability.
  5. [23]
    On 22 April 2020, after the trial in the Queensland Nickel proceeding was concluded, but while judgment was still reserved, Vannin retained Mr Doyle QC to act for it in the Vannin proceeding to obtain summary judgment against Queensland Nickel in respect of the GE liability.  His discharge of that retainer would require him to seek to vindicate for Vannin as against the Applicants the same propositions in relation to the GE liability which his previous retainer had required him to seek to vindicate for Queensland Nickel as against the Applicants in the Queensland Nickel proceeding.  However, because of the events I have recited, even though his former client Queensland Nickel had earlier been excused from participating in the Vannin proceeding, because Queensland Nickel was still a defendant and because the Applicants had leave to defend the claim against Queensland Nickel, he would now be seeking to vindicate those propositions, at least formally, as against Queensland Nickel as well as against the Applicants.
  6. [24]
    The Applicants became apprised of the fact that Mr Doyle QC was acting for Vannin against their interests on about 2 June 2020.  Their solicitors immediately communicated their opposition to that course by letter to Vannin’s solicitors dated 2 June 2020. 
  7. [25]
    The first aspect of the Applicants’ complaint was that Mr Doyle QC was now acting against Queensland Nickel in a matter in which the subject matter overlapped or was the same as a matter in which he had acted for Queensland Nickel.  However, the Applicants need not have expressed concern on Queensland Nickel’s behalf because Queensland Nickel had no complaint about Mr Doyle QC acting for Vannin against it in the Vannin proceeding.  In fact, Queensland Nickel gave what it described as its informed consent to that course.  Queensland Nickel’s liquidator (Mr Park, one of the two liquidators identified as the present third respondent) deposed as follows:
  1. On 2 June 2020, I was the Liquidator who considered whether to consent to Mr Doyle QC acting for [Vannin] in [the Vannin proceeding]. In considering this question, I considered whether there was any possibility for a conflict of interest, real or potential, to arise if [Queensland Nickel] agreed to permit Mr Doyle QC to act for Vannin.  Having done so, I did not see that there was any real potential for the interests of [Queensland Nickel] to be prejudiced by Mr Doyle QC acting for Vannin in [the Vannin proceeding].
  1. Since August 2019, the Liquidators’ participation in [the Vannin proceeding] has been affected by the terms of the consent order made by Mullins J on 5 August 2019 (being CFl#749). Further, on 5 December 2019, Boddice J ordered that, subject to further orders, [Queensland Nickel] was excused from further participation in [the Vannin proceeding], save for the making of disclosure. A copy of that order is exhibited to this Affidavit and marked “JRP-9”.
  1. There are limited funds available in the liquidation of [Queensland Nickel] and so the Liquidators are in any event restricted in what resources they can devote to the Court proceedings.
  1. Having considered these matters, I gave the consent of [Queensland Nickel] for Mr Doyle QC to act for Vannin in [the Vannin proceeding]. As I did not see any possibility of a conflict of interest, I was not sure that [Queensland Nickel] needed to give consent. However, I approved the letter referred to on 2 June 2020, in which [the Applicants] were notified that the Liquidators, on behalf of [Queensland Nickel], gave their informed consent for Mr Doyle QC to act, on this basis.
  1. At the time I gave the consent I was not aware of any evidence relating to the merits of issues in [the Vannin proceeding] which was of confidential kind that might impair the defence of [the Applicants]. For that reason, the possibility of there being confidential information relevant to [the Applicants] was not a factor that I considered.
  1. I have also not become aware of anything since [Queensland Nickel] gave its consent for Mr Doyle QC to act, of the potential for there to be a conflict of interest between [Queensland Nickel] and Vannin, or of the existence of any information confidential to [the Applicants], that has been in the possession of [Queensland Nickel].
  1. [26]
    Perhaps more relevant was what the Applicants’ solicitors had to say concerning the Applicants’ own interests.  They asserted that Mr Doyle QC’s involvement was contrary to what they said was Queensland Nickel’s obligation (deriving, it was contended, from the Consent Orders) to render the Applicants necessary and reasonable assistance to defend the claims against Queensland Nickel, which obligation gave them the right to seek the assistance of Queensland Nickel’s liquidators and its legal representatives.  (It was not explained how such an obligation to render active assistance could possibly exist in light of the fact that, consistent with the terms of the settlement deed, the Consent Orders had provided that Queensland Nickel was not required to take any active part in the Vannin proceeding.)  The Applicants’ solicitors objected to Mr Doyle QC appearing and advised that they considered that the matter could not proceed until they had properly understood the extent of any benefit Vannin had received from Mr Doyle QC’s involvement.
  2. [27]
    The solicitors who had acted for Queensland Nickel in the Queensland Nickel proceeding (namely the present fifth respondent) responded concerning the allegations made about Queensland Nickel by letter dated 2 June 2020 which –
    1. (a)
      rejected the argument which had been advanced concerning the effect of the 5 August 2019 consent orders and suggested that the contentions made concerning Queensland Nickel’s obligation to assist were misconceived;
    2. (b)
      pointed out that Queensland Nickel had been excused from further participation in the Vannin proceeding, and contended that although the Applicants had leave to defend the claim made against Queensland Nickel, that leave did not permit them to defend the claim in the name of Queensland Nickel;
    3. (c)
      advised that they were instructed that Queensland Nickel and its general purpose liquidators were content for Mr Doyle QC to act for Vannin in the Vannin proceeding and provided their fully informed consent for him to do so.
  3. [28]
    By a letter bearing the same date, Vannin’s solicitors (namely the present second respondent) also responded to the Applicants’ complaint.  They advised that there was no substance to the matters raised in the letter and referred to the fact that Queensland Nickel and its general purpose liquidators had consented to Mr Doyle QC acting for Vannin.  Notwithstanding this position, they subsequently sought to avoid the problem because, on 12 June 2020, they advised the Applicants that alternative counsel had been retained to replace Mr Doyle QC.
  4. [29]
    By originating application filed 17 June 2020, the Applicants sought the following relief:[6]
  1. In this order, Subject Matters means the:

(a),(b) [the instruments to which GE, Palmer Aviation and Queensland Nickel were party and which documented the facility agreement to which I have referred at [11]];

(c) claims made in [the Vannin proceeding].

  1. Within 14 days, each of the respondents serve on [the Applicants] an affidavit:
  1. (a)
    deposing to the information passing between [Vannin] and [its solicitors] (on the one side) and [Queensland Nickel] (whether itself, its servants, agents or otherwise howsoever), [the general purpose liquidators] and [their solicitors] (on the other side), since 3 August 2019 to the date of these orders, in respect of the Subject Matters;
  1. (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.
  1. The proceeding be listed for further hearing on a date to be fixed to resolve any questions of legal professional privilege regarding the affidavits in order 3 above.
  1. [30]
    I have explained why the Applicants say that they seek such orders at [4] above.  The Applicants did not offer any undertaking as to damages.
  2. [31]
    Whether the Applicants should have the relief they seek must be analysed by reference to the jurisdiction which they invite the Court to exercise.  I do so under separate headings below. 

The Court’s exclusive equitable jurisdiction to protect confidential information

  1. [32]
    The Applicants seek an injunction in the exercise of the Court’s exclusive equitable jurisdiction, which, as the High Court recently observed,[7] is to say an injunction in aid of an equitable right.  The Applicants contend that this is such a case because they seek relief in respect of the protection of confidential information. 
  2. [33]
    The Applicants argued that I should regard their claim to relief as “in the nature of a mandatory interlocutory injunction”.  The question whether the Applicants were correct in so characterising their claim was not fully argued before me.  I have doubts as to whether it is appropriate so to characterise the relief sought by the Applicants, at least insofar as it is framed as an exercise of equity’s exclusive jurisdiction.  However, because I conclude that the case fails even when viewed as an application for interlocutory relief, I will assume the point in the Applicants’ favour, without expressing a view on its correctness. 
  3. [34]
    I recently restated my understanding of the principles applicable to the grant of interlocutory injunctions in AECI Australia Pty Ltd v Convey [2020] QSC 207 in the following terms:[8]

[13] On an application for an interlocutory injunction, it is necessary to make two main inquiries: first, has the applicant shown that it has a prima facie case, and second, has the applicant shown that the balance of convenience favours granting the relief claimed.[9]

[14] In order to satisfy the first inquiry, an applicant does not have to show that it will probably succeed at trial.  Rather, it is sufficient that the applicant shows a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial.[10]  How strong the probability of success needs to be depends upon the nature of the rights asserted and the practical consequences likely to follow from the orders sought.[11]  The first inquiry is sometimes described as whether there is a “serious question” to be tried.  There is no objection to the use of that phrase if it is understood as conveying the notion that the seriousness of the question must, like the likelihood of success, be sufficient in the circumstances to justify the order sought.[12]

[15] The second inquiry is whether the balance of convenience supports the relief claimed; in other words, whether the inconvenience or injury which the applicant would be likely to suffer if an injunction were refused outweighs, or is outweighed by, the injury which the respondent would suffer if an injunction were granted.[13]  The adequacy of an award of damages and the question of the sufficiency of the usual undertaking are to be considered as part of the totality of the balance of convenience question.[14]

[16] The two inquiries are related and not independent of each other, so that the weight of considerations in regard to one may well affect the other.[15]

[17] One example of this relationship occurs where the grant of an interlocutory injunction would have the same practical effect as if the applicant were granted final relief.  In such circumstances, a Court might require the applicant to demonstrate a stronger probability of success than might be required in a different case.  Of such a case, Amalgamated Pest Control Pty Ltd v SM & SE Gillece Pty Ltd [2016] QCA 260, Jackson J observed (McMurdo P and Gotterson JA agreeing):[16]

In those circumstances, it is desirable for the court to evaluate (if it can) and take into account the strength or weakness of the applicant’s case for final relief.[17]  Also, in those circumstances, the court may refuse an interlocutory injunction even if the applicant has a strong case for a final injunction for breach of contract in restraint of trade.[18]

[18] The bottom line is that in making its decision on an application for an interlocutory injunction, the Court should weigh in the balance all relevant factors, including the strength of the case to be tried and the factors affecting the balance of convenience.  Then the Court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been “wrong”, in the sense of granting an injunction to a party which fails to establish its right at an ultimate trial, or failing to grant an injunction to a party which succeeds at trial.[19]

  1. [35]
    Although the Applicants do not presently seek an order which would defeat any claim for legal professional privilege, they do seek to control the conduct of others by requiring them to disclose information about their activities (including interfering with their own rights to keep their own communications confidential) in a way which cannot be undone.  In that respect, the grant of the injunction sought would have the same practical effect as if the Applicants had been granted final relief of the nature of that which they seek.  Accordingly, I would require the Applicants to demonstrate a stronger probability of success than might be required in another case.
  2. [36]
    So far as the present basis of jurisdiction is concerned, the Applicants contended that they had established that there was a prima facie case that they had a cause of action for breach of confidence in equity. 
  3. [37]
    In this regard, it is important to note that the Applicants did not seek relief in respect of the protection of their own confidential information.  Rather, they contended that the information with which the proceeding was concerned was the confidential information of Queensland Nickel.[20]  How, one might ask, could the Applicants have a cause of action for breach of confidence in equity in relation to Queensland Nickel’s confidential information?  The Applicants contended that they could have such a cause of action by virtue of cll 7.1, 7.2(a)(ii) and 8.7(a) of the settlement deed and by virtue of subrogation rights arising from the Consent Orders.   
  4. [38]
    As to the settlement deed:
    1. (a)
      I have already explained that no rights could yet arise under cl 7.1: see [17](a) above.  
    2. (b)
      It seems to me that cl 7.2(a)(ii) should be read as though it was set out in this way:

As to the Vannin proceeding, the Applicants may do all acts as may be required or necessary for the purpose –

  1. (A)
    of defending or enforcing any rights or remedies; or
  1. (B)
    of obtaining relief or indemnity;

from any claims brought by Vannin.

  1. (c)
    For cl 7.2(a)(ii) to come into play, the Applicants would have to persuade me that the act of commencing proceedings in vindication of Queensland Nickel’s equitable rights in relation to its confidential information would fall within the ambit of the “acts” which an objective third party would have thought that the parties to the settlement deed must have contemplated as being required or necessary for the purposes specified.  And this must be so despite the fact that it must already have been contemplated that the consent orders specified in schedule 1B would already have been made, with the result that Queensland Nickel was not required to take part in the proceedings.  There is no reason to think that an objective third party would reach that conclusion.  But in any event, the clause only authorises acts by the Applicants; it does not transfer Queensland Nickel’s rights to the Applicants.  Nor does it impose any obligation on Queensland Nickel or require it to take any steps. 
  2. (d)
    Clause 8.7(a), on the other hand, does impose an obligation on Queensland Nickel, but similarly, for it to come into play, the Applicants would have to persuade me that commencing proceedings in vindication of Queensland Nickel’s equitable rights in relation to its confidential information would fall within the ambit of the “things” which an objective third party would have thought that the parties to the settlement deed must have contemplated as being necessary or desirable to give full effect to the deed.  There is no reason to think that an objective third party would reach that conclusion.  But even if there were, such an obligation on Queensland Nickel would not operate to give the Applicants the ability to exercise Queensland Nickel’s rights.
  3. (e)
    Accordingly, I am not persuaded that there is a prima facie case that the Applicants have a cause of action for breach of confidence in equity in relation to Queensland Nickel’s confidential information arising by virtue of the terms of the settlement deed.
  1. [39]
    As to the Consent Orders:
    1. (a)
      The Applicants argued that order 1 of the Consent Orders should be regarded as an order obliging the Applicants to indemnify Queensland Nickel against any liability which it might have to Vannin in respect of the rights asserted by Vannin against Queensland Nickel in the Vannin proceeding.  Then, they contended that they should be regarded as in the same position as an indemnifying insurer and subrogated to any causes of action which Queensland Nickel might have, which might go in diminution of the loss for which they had indemnified Queensland Nickel.  (They did not condescend to explain how it could be argued that Queensland Nickel’s rights in relation to its confidential information might be regarded as causes of action which might go in diminution of the indemnified loss.) 
    2. (b)
      For their part, the third, fourth and fifth respondents referred to Lord Denning’s examination of the doctrine of subrogation in Morris v Ford Motor Co Ltd [1973] QB 792 at 800 (bold emphasis added):

This is a contract which contains an indemnity. As such, it gives rise to a right in the indemnifier to be subrogated to the rights of the indemnified. But it is necessary to analyse this right. In particular, to see whether it gives the indemnifier a right to sue in the name of the indemnified.

Let me first distinguish it from a contract of suretyship. When a surety pays off the debt, he is entitled in his own name to sue the principal debtor for the amount, or to sue his co-sureties for contribution. He is entitled to any securities which may have been given for the debt by the principal debtor to the creditor. These rights do not depend upon contract, but upon the established principles of the courts of equity. It was so stated by Sir Samuel Romilly in his argument in Craythorne v. Swinburne (1807) 14 Ves.Jun. 160, 162, which was approved by Lord Eldon L.C., at p. 169. Also by Lord Selborne L.C. and Lord Blackburn in Duncan, Fox & Co. v. North and South Wales Bank (1880) 6 App.Cas. 1, 12, 18, 19.

Now I turn to contracts of indemnity. Where an insurer—or any other person who enters into a contract to indemnify another—pays the amount of the loss or damages to the insured, he is entitled to the advantages of every right of action of the assured, whether in contract or in tort, which may go in diminution of the loss: see Castellain v. Preston (1883) 11 Q.B.D. 380; H. Cousins & Co. Ltd. v. D. & C. Carriers Ltd. [1971] 2 Q.B. 230. This entitlement, too, does not depend on the contract itself but on the “plainest equity.” At any rate, Lord Hardwicke L.C. said so: see Randal v. Cockran (1748) 1 Ves.Sen. 97 as explained in Yates v. Whyte (1838) 4 Bing.N.C. 272, 283. But this entitlement does not amount to an assignment of the right of action. It does not entitle the insurer or indemnifier to sue in his own name a wrongdoer who has caused the loss or damage: see London Assurance Co. v. Sainsbury (1783) 3 Doug. K.B. 245; Simpson & Co. v. Thomson (1877) 3 App.Cas. 279. In order to sue the wrongdoer, the insurer or indemnifier must use the name of the insured or party indemnified: see Mason v. Sainsbury (1782) 3 Doug. K.B. 61. But the important point to notice is this: the insurer had no right at law to make use of the name of the assured. If the assured did not consent to it, the insurer had to go to a court of equity to compel him to allow it. And the court of equity could impose such terms as it thought fit

  1. (c)
    The third, fourth and fifth respondents then contended that any subrogation rights which the Applicants might have would be more akin to the rights of subrogation which a surety might have in the event that the surety paid the debt which a principal debtor owed to a creditor.  Such rights would be the rights of the former creditor: in this context, the rights of Vannin as creditor against Queensland Nickel as principal debtor.  Such rights could not be the rights of Queensland Nickel in relation to its own confidential information.  There is much to be said for this being the more apposite analogy, particularly in light of order 6 of the Consent Orders which specifically contemplated that the Applicants were permitted to assert rights against Queensland Nickel. 
  2. (d)
    But even if the Applicants’ analogy were the better view (and even if Queensland Nickel’s rights in relation to its confidential information were capable of being regarded as rights to which the Applicants could be subrogated because they went in diminution of the indemnified liability), I could not accept that the Applicants could be in a position presently to exercise those rights (contrary to Queensland Nickel’s own wishes) when the Applicants have not yet paid any monies pursuant to order 1, and in fact have filed an application to have order 1 set aside.[21]  As I have explained at [4] above, one of the Applicants’ express purposes for seeking the present relief is to obtain assistance in the prosecution of that application.  Thus the Applicants rely on the present existence of Queensland Nickel’s indemnity rights pursuant to order 1 to establish their entitlement to seek equity’s assistance so that they may then seek to destroy Queensland Nickel’s indemnity rights pursuant to order 1, being the very rights they relied on in the first place.  In my view, no court of equity would countenance such approbation and reprobation.[22]  Accordingly, no court of equity would compel Queensland Nickel to allow the Applicants to sue in Queensland Nickel’s name in such circumstances.  The Applicants did not identify any authority in support of their argument, relying only on the flawed analogy of an insurer who in fact has agreed to indemnify.[23]
  3. (e)
    I am not persuaded that there is a prima facie case that the Applicants have a cause of action for breach of confidence in equity in relation to Queensland Nickel’s confidential information arising by virtue of the terms of order 1 of the Consent Orders (or that a court of equity would, at the Applicants’ behest, allow the Applicants to exercise Queensland Nickel’s rights).
  1. [40]
    For the reasons expressed, the Applicants have not demonstrated a prima face case sufficient to justify the making of the orders which they seek. 
  2. [41]
    I mention that the Applicants also sought to rely on the Court’s well-established jurisdiction to restrain a legal practitioner from acting against a former client.  At least some part of that jurisdiction turns on the protection of equitable rights, namely the former client’s rights in relation to the protection of its confidential information and the former client’s rights to enforce fiduciary duties owed to it.  But the former client is Queensland Nickel and it does not complain.  The analysis developed above explains why the Applicants are not in the position to exercise Queensland Nickel’s equitable rights.   For completeness – because it is not strictly relevant under this heading – insofar as the jurisdiction to restrain a legal practitioner from acting against a former client might turn on the former client’s legal rights, the same analysis explains why the Applicants are not in a position to exercise Queensland Nickel’s legal rights.

The Court’s equitable jurisdiction to make orders in aid of the Applicants’ rights at law

  1. [42]
    The Applicants relied on equity’s auxiliary jurisdiction in aid of enforcement of their contractual rights under the settlement deed, including arising from subrogation.  The alleged rights arising from subrogation do not need to be considered further for reasons addressed under the previous heading.  The rights at law identified by the Applicants were alleged rights in relation to breach of the settlement deed and setting aside court orders made pursuant to the settlement deed. 
  2. [43]
    In Computershare Ltd v Perpetual Registrars Ltd (2000) 1 VR 626, Warren J made an order requiring the defendant to file an affidavit disclosing details concerning the access, disclosure and use of confidential information based on the old bill of discovery procedure.   Warren J relevantly discussed the Court’s jurisdiction to order preliminary discovery in equity.  Her Honour concluded that although Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133 was a case in which the jurisdiction was exercised to order discovery of identity in particular circumstances, a broader approach should be taken to that jurisdiction, it not being appropriate to limit it to “identity” cases.  In justification of that approach, her Honour referred to the broader approach adopted by Hoffmann LJ in Mercantile Group (Europe) A.G. v Aiyela [1994] QB 366 at 374 and its approval in Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434 at 445-6 per Gummow J; Breen v Williams (1996) 186 CLR 71 at 120 per Gummow J and Hooper v Kirella Pty Ltd (1999) 96 FCR 1 at 10.  Her Honour applied the broader approach to the circumstances in which preliminary discovery in equity could be ordered.
  3. [44]
    In Mercantile, Hoffmann LJ concluded that all that was necessary to justify the exercise of the jurisdiction against a third party was:

… that the third party should have become mixed up in the transaction concerning which discovery is required and, of course, that the court should consider it to be “just and convenient” to make an order.

  1. [45]
    That the Supreme Court of Queensland may exercise the equitable jurisdiction discussed in Norwich Pharmacal has been established: see Re Pyne [1997] 1 Qd R 326.  In that case, Shepherdson J (following Hunt J in Re Application of Cojuangco (1986) 4 NSWLR 513) concluded that “the Norwich Pharmacal type of case was sufficient to justify preliminary discovery if the applicant has a cause of action (whether or not he intends to pursue it) and that discovery is necessary to enable justice to be done”.  There is some debate as to whether it is a condition of the exercise of the jurisdiction that a cause of action must be established.  That debate was referred to in Idoport Pty Ltd v National Australia Bank Ltd [2004] NSWSC 695 at [107], where Einstein J quoted (without necessarily approving) submissions before him which had sought to support the proposition that there might be no such strict requirement.  I do not think the present case calls for a resolution of that debate.
  2. [46]
    In this case, the Applicants contended that the conduct of Queensland Nickel in disclosing relevant information to Vannin and in consenting to Mr Doyle QC acting for Vannin may constitute a breach of the settlement deed by Queensland Nickel.  They contended there is a serious question whether Queensland Nickel may have breached its promise to assist the Applicants by, in substance, assisting Vannin.  That would, the Applicants contended, give rise to legal rights in relation to breach of the settlement deed and setting aside order 1 of the Consent Orders. 
  3. [47]
    I prefer to express no view at this stage whether the proper construction of cl 8.7(a) would support this aspect of the Applicants’ case.  I would refuse any order for preliminary discovery in equity for two reasons.
  4. [48]
    First, such discovery is not necessary to enable justice to be done in relation to the allegation that the grant of consent constituted a breach of contract because there is no dispute that consent was given.  The only live question would be the question of construction of the settlement deed.
  5. [49]
    Second, the Applicants have not established any sufficient evidentiary foundation for the proposition that Queensland Nickel has disclosed relevant information to Vannin in a way which would even arguably amount to a breach of cl 8.7(a), even if it could be construed as equivalent to a promise not to assist Vannin in the Vannin proceeding.  Their argument to the contrary seems to me to be entirely speculative.  They have not persuaded me that preliminary discovery is necessary to enable justice to be done.  I observe:
    1. (a)
      Mr Park, the liquidator (and former administrator) of Queensland Nickel, deposed to the circumstances by which Queensland Nickel obtained the information which it had.  He explained:
      1. The administrators were not aware of the alleged GE liability until GE lodged a proof of debt on 27 January 2016.
      2. The administrators obtained access to the records of Queensland Nickel on or about 25 January 2016 via a server network at the site of the nickel refinery, in order to investigate the state of its debts and its financial position.  Mr Palmer on behalf of the Applicants refused them access to the server network except in relation to specific data which related to Queensland Nickel only.
      3. The administrators took steps to preserve a copy of the books and records of Queensland Nickel, including its Outlook mail server, a G drive and employee files.  They caused a copy of this material to be placed on an external hard drive and took that drive with them when, on or about 8 April 2016, they vacated the site and handed it back to the Applicants.   They left the server network intact.
      4. The result is that the Applicants have access to the original source of all the information which the administrators took with them. 
      5. Any knowledge that the liquidators had about the alleged GE liability was obtained through documents located in the books and records of Queensland Nickel obtained in the way explained, and through proofs of debt lodged in the administration.  The liquidators had not spoken to any witnesses concerning the underlying transactions, nor had they taken, or caused to be taken, any witness statements.
    2. (b)
      The Applicants’ proposition that Queensland Nickel has disclosed information to Vannin seems to turn on the proposition that Mr Doyle QC necessarily must have carried information with him which Queensland Nickel had conveyed to him during the course of his retainer by liquidators on behalf of that company, and that he must have conveyed that information to Vannin.  Logically, the only such information could have been:
      1. information concerning the primary records which Queensland Nickel had concerning the GE liability and the transactions alleged to have given rise to it; or
      2. secondary information deriving from subsequent analysis of those primary records or work done or advice obtained in relation to them.  
    3. (c)
      If primary records are directly relevant to the issues, Vannin would obtain the information contained in them by disclosure from Queensland Nickel itself or from the Applicants (who have access to all the primary documents anyway).  Disclosure of information, which would be obtained in any event on disclosure, could hardly be a breach of cl 8.7(a) even if it were to be construed as the Applicants contend.  If there was something in the primary records not directly relevant and therefore not obtainable by Vannin on disclosure, but disclosure of which could arguably constitute a breach of cl 8.7(a), then it lay within the Applicants’ ability to identify what it was and then to explain to me why there was some reason to believe that such information had been disclosed to Vannin.  They have not done so.  They did belatedly rely on an affidavit of Mr Palmer.  However, that affidavit was riddled with inadmissible, scandalous and argumentative material (as to which, see Schedule A to these reasons where I express my rulings in relation to objections which were taken to the affidavit) and did not contain the requisite evidence.
    4. (d)
      But what of secondary information?  By its written and oral opening in the Queensland Nickel proceeding, Queensland Nickel had made public its case against the Applicants concerning the existence of the GE liability.  Mr Doyle QC undoubtedly knew of that case.  But even if he disclosed it to Vannin, that could hardly be a breach of cl 8.7(a) because that information had been made public and was already available to Vannin.  There was no evidentiary basis before me for the proposition that Mr Doyle QC had some other information, which must have been disclosed to Vannin and which possessed such a quality that it would give rise to an arguable breach of the settlement deed by Queensland Nickel.  Again, Mr Palmer’s affidavit did not contain the requisite evidence.  And the Applicants were not able to explain to me what it might be in any meaningful sense, even on the speculative basis by which they were proceeding.
    5. (e)
      The Applicants argued that the respondents had “by their silence, and their conduct admitted that confidential information has been disseminated”.  In my view, the Applicants’ contentions merited no response in any greater detail than was given to them in the correspondence to which I have referred at [25] to [28] above.  I would not infer any admission from the absence of any further engagement with the Applicants’ arguments.  Nor would I infer from the reference to “fully informed consent” that there was any admission that there must have been actual disclosure of confidential information.   
    6. (f)
      Preliminary discovery in equity cannot be permitted to be used for a fishing expedition.   In my view, that is what the Applicants seek to do.  
  6. [50]
    For the reasons expressed, the Applicants have not demonstrated that preliminary discovery in equity should be made in aid of whatever legal rights the Applicants might have in relation to breach of the settlement deed and setting aside court orders made pursuant to the settlement deed.

The Court’s inherent jurisdiction to protect the integrity of its own processes

  1. [51]
    I canvassed the nature of this jurisdiction at length in Parbery v QNI Metals Pty Ltd (2018) 358 ALR 88 because it is the juridical foundation of the inherent jurisdiction to make freezing orders.
  2. [52]
    The following presently relevant propositions may be extracted from that case.
    1. (a)
      When it is demonstrated to a superior court that there is a likelihood that its processes will be abused or frustrated, it is within the Court’s power to make orders considered to be appropriate to prevent that from occurring.[24]
    2. (b)
      The Court may mould orders to protect the integrity of its processes according to the exigencies of the case, and novelty of form is no objection to the validity of an order.[25]
    3. (c)
      Three broad considerations inform the judicial exercise of the inherent jurisdiction.
    4. (d)
      First, whether the plaintiff’s underlying cause of action has the requisite strength.[26]  The relevant standard is that of a good arguable case, in the sense of a case which is more than barely capable of serious argument, and yet not necessarily one which the judge believes to have a better than 50% chance of success.[27]
    5. (e)
      Second, whether the relevant risk to the integrity of the Court’s processes exists.[28]  Where the question of the existence of the risk turns on inference rather than direct proof, the question is whether there are facts from which a prudent, sensible commercial person could properly infer the existence of the relevant risk.[29]
    6. (f)
      Third, whether it is in the interests of justice that the power be exercised,[30] in particular bearing in mind that the jurisdiction must be exercised with a high degree of caution and with proper consideration for the nature of the impact on the persons affected.[31]
  3. [53]
    It is sufficient to dispose of the Applicants’ attempt to rely on this aspect of the Court’s inherent jurisdiction to explain that, in my view, the Applicants have not established in the requisite way that the Court’s processes or potential processes are at risk of being frustrated. 
  4. [54]
    The Applicants put their argument this way:

In the present case, the Court is faced with unconscientious conduct by officers of the Court (both legal practitioners and liquidators) with respect to information.  The conduct may frustrate the proper conduct of [the Vannin proceeding] including the Applicants’ defence of the claims against [Queensland Nickel]. It is a paradigm example demonstrating ‘to a superior court that there is a likelihood that its processes [may] be abused or frustrated’.  As Brooking JA observed in Spincode Pty Ltd v Look Software Pty Ltd, referring to the conduct of the solicitors in the case before him, that it was:

… so offensive to common notions of fairness and justice that they should, as officers of the court, be brought to heel notwithstanding that they have not … infringed any legal or equitable right.

  1. [55]
    But that argument must be rejected. 
  2. [56]
    The Applicants do not allege misuse of their own information.  They seek to allege misuse of Queensland Nickel’s information.  But they have not established that they have even a prima facie right to exercise Queensland Nickel’s rights in relation to Queensland Nickel’s information.  The Applicants complain that Vannin retained Mr Doyle QC in circumstances in which he would be acting, at least formally, against Queensland Nickel, his former client.  But Queensland Nickel was the former client and it consented to that course.  The Applicants have not established a prima facie right to exercise Queensland Nickel’s rights deriving from Queensland Nickel having retained Mr Doyle QC in the Queensland Nickel proceeding.  Nor have the Applicants established any evidential basis for the proposition that information, which was either not already public or which Vannin could not otherwise obtain, had been provided to Vannin by officers of the Court.  The proposition that the Court is faced with “unconscientious conduct” was not arguable.  The Applicants have not established any real likelihood of frustration of the proper conduct of the Vannin proceeding. 
  3. [57]
    For the reasons expressed, the Applicants have not demonstrated that the Court’s processes or potential processes are at risk of being frustrated.  A prudent, sensible commercial person would infer that there was no real likelihood at all that the Court’s processes or potential processes would be affected.

The Court’s inherent jurisdiction to make orders for inspection, detention, custody or preservation of property

  1. [58]
    I have earlier also recorded that the Applicants sought to rely on the Court’s inherent jurisdiction to make orders for the inspection, detention, custody or preservation of property.  The Applicants contend that the existence of this inherent jurisdiction is recognised by UCPR r 255.
  2. [59]
    But the property which is the subject of the present proceeding is said to be the confidential information of Queensland Nickel.  Queensland Nickel does not seek any order in protection of its property rights in relation to any information.  And, for reasons already expressed, the Applicants have not established a prima facie right to exercise Queensland Nickel’s rights in relation to Queensland Nickel’s information.  Nor have they established a prima facie case that they have any rights in relation to Queensland Nickel’s information which are under threat.
  3. [60]
    The Applicants have not demonstrated any basis on which to invoke the exercise of this aspect of the Court’s inherent jurisdiction. 

Conclusion

  1. [61]
    No sufficient evidentiary basis has been established for the exercise of any jurisdiction the Court might have to make orders such as those sought by the Applicants.  The originating application must be dismissed.  I will hear the parties on costs.

Schedule A: Objections and rulings in relation to Mr Palmer’s affidavit

Item

Paragraph

Objections

Applicants’ response

Ruling

  1.  

[9]

Irrelevant.

Inadmissible opinion evidence.

Liable to be struck out as scandalous.

Paragraphs 9(a), 9(c) to 9(e) not read.

Paragraph 9(b) pressed.  The paragraph is relevant to the kind of information held by the fourth respondents.  The paragraph is also relevant to the relationship between the first respondent and the fourth respondent.  It is relevant to Applicants’ Submissions dated 30 June 2020 (AS) [6], [64], [70], [111], [122], [138], [163] and [168] to [170]. 

Paragraph 9(b) contains Mr Palmer’s expression of his opinion.  His state of mind is not relevant and the subject matter of the opinion is not a matter for admissible opinion evidence.  I uphold the objection.

  1.  

[13]

Pleading is before the court; secondary evidence.

Pressed.  Provides narrative (and understanding) and is not adduced as evidence to displace reliance on the written document.  Relevant to AS [39] to [64].

The paragraph expresses secondary evidence of the contents of other documents.  It expresses irrelevant argumentative material concerning the state of mind of corporate parties.  It is not admissible evidence.  I uphold the objection.

  1.  

[14]

Irrelevant.

Inadmissible opinion evidence.

Liable to be struck out as scandalous.

Pressed.  Provides narrative (and understanding) and not pressed as opinion.  To be read only for fact of belief held by Mr Palmer.  Relevant to AS [39] to [64].

The objection is upheld for the reasons expressed by the objecting parties and further because it expresses irrelevant argumentative material concerning the state of mind of corporate parties and of Mr Palmer. 

  1.  

[15]

Irrelevant.

Inadmissible opinion evidence.

Liable to be struck out as scandalous.

Pressed.  Relevant to quality of so-called ‘fully informed consent’.  It is also relevant to exercise of equitable jurisdiction to grant a mandatory injunction and broad merits-based inquiry in equity.  Relevant to AS [111], [115], [122].

As per item 3. 

  1.  

[16]

Irrelevant.

Inadmissible opinion evidence.

Liable to be struck out as scandalous.

Not read.

 

  1.  

[17]

Irrelevant.

Inadmissible opinion evidence.

Liable to be struck out as scandalous.

Pressed.  Provides narrative (and understanding) and is relevant to construction of settlement deed and Consent Orders.  Relevant to AS [39] to [64].

As per item 3.

  1.  

[18]

Irrelevant.

Inadmissible opinion evidence.

Privilege: evidences content of settlement negotiations.

Pressed.  Observations within witness’ experience and observations of own reasons for entering settlement negotiations. 

Evidence does not refer to content of the negotiations. 

No admission contained in evidence covered by privilege.

Relevant to AS [89] to [103].

The objection is upheld for the reasons expressed by the objecting parties and further because it expresses irrelevant argumentative material concerning the state of mind of Mr Palmer. 

  1.  

[19]

Irrelevant.

Inadmissible opinion evidence.

Privilege: evidences content of settlement negotiations.

Pressed.  Provides narrative.  Observations within witness’ experience and observations of own reasons for entering settlement negotiations. 

Evidence does not refer to content of the negotiations. 

No admission contained in evidence covered by privilege. 

Relevant to AS [89] to [103].

As per item 7.

  1.  

[20]

Irrelevant.

Inadmissible opinion evidence.

Privilege: evidences content of settlement negotiations.

Pressed. 

Evidence does not refer to content of the negotiations. 

No admission contained in evidence covered by privilege. 

Relevant for fact of having occurred, not for content of discussion. 

Relevant to AS [89] to [103].

As per item 7.

  1.  

[21]

Irrelevant.

Inadmissible opinion evidence.

Privilege: evidences content of settlement negotiations.

Pressed. 

Evidence does not refer to content of the negotiations. 

No admission contained in evidence covered by privilege. 

Relevant to AS [70], [71], [169], [170]

As per item 7.

  1.  

[22]

Irrelevant.

Inadmissible opinion evidence.

Privilege: evidences content of settlement negotiations.

Not pressed. 

 

  1.  

[23]

Irrelevant.

Inadmissible opinion evidence.

Privilege: evidences content of settlement negotiations.

Pressed. 

Evidence does not refer to content of the negotiations. 

No admission contained in evidence covered by privilege. 

Relevant to establishing objective facts known to the parties and to purpose of the transaction in respect of the settlement deed. 

Relevant to AS [70], [71], [89] to [103], [169], [170].

The objection is upheld for the reasons expressed by the objecting parties.  Further, the suggestion that the material is admissible in aid of construction of the settlement deed is rejected because it has not been demonstrated that extrinsic material is admissible in aid of its construction; the material does not establish objective facts known to both parties in any event; and no argument identifying how the material could possibly assist in construing the settlement deed has been presented.

  1.  

[25]

Irrelevant.

Inadmissible opinion evidence.

Privilege: evidences content of settlement negotiations.

Pressed. 

Relevant to establishing objective facts known to the parties and to purpose of the transaction.

Evidence does not refer to content of the negotiations. 

No admission contained in evidence covered by privilege.  

Relevant to AS [70], [71], [89] to [103], [169], [170].

As per item 12.

  1.  

[27]

Irrelevant.

Inadmissible opinion evidence.

Privilege: evidences content of settlement negotiations.

No evidence of anything actually said.

Pressed. 

Evidence does not refer to content of the negotiations. 

No admission contained in evidence covered by privilege.

Objective facts of the meeting being adduced as distinct from the content of the communications.

Relevant to AS [70], [71], [169], [170]

As per item 12.

  1.  

[28]

Irrelevant.

Inadmissible opinion evidence.

Privilege: evidences content of settlement negotiations.

No evidence of anything actually said.

Pressed. 

Evidence does not refer to content of the negotiations. 

No admission contained in evidence covered by privilege.  

Relevant to AS [70], [71], [169], [170].

The objection is upheld for the reasons expressed by the objecting parties and further because it expresses irrelevant argumentative material concerning the state of mind of Mr Palmer.   

  1.  

[29]

Irrelevant.

Inadmissible opinion evidence.

Privilege: evidences content of settlement negotiations.

Pressed. 

Evidence does not refer to content of the negotiations. 

No admission contained in evidence covered by privilege.  

Relevant to AS [70], [71], [89] to [103], [169], [170].

As per item 15.

  1.  

[30]

Irrelevant.

Inadmissible opinion evidence.

Privilege: evidences content of settlement negotiations.

Pressed. 

Evidence does not refer to content of the negotiations. 

No admission contained in evidence covered by privilege.  

Relevant to AS [70], [71], [89] to [103], [169], [170].

From the words ‘There was a clear…’ to ‘…as early as December 2017).’ not read. 

As per item 15.

  1.  

[31]

Irrelevant.

Inadmissible opinion evidence.

Privilege: evidences content of settlement negotiations.

Pressed. 

Evidence does not refer to content of the negotiations. 

No admission contained in evidence covered by privilege.

The fact of a communication being made is adduced as distinct from the content of the communication.

Relevant to AS [70], [71], [89] to [103], [169], [170].

As per item 15.

  1.  

[32]

Irrelevant.

Inadmissible opinion.

Liable to be struck out as scandalous.

Privilege: evidences content of settlement negotiations.

Pressed. 

The evidence is relevant to the content of information held by the third to fifth respondents. 

There is no reference to settlement negotiations.

Relevant to AS [70], [71], [169], [170].

Objection is disallowed in relation to the first sentence which is capable of being regarded as an expression of a relevant fact.  Objection is allowed for the balance of the paragraph as it is irrelevant evidence going to Mr Palmer’s state of mind and because it is inadmissible opinion evidence.

  1.  

[33]

Irrelevant.

Inadmissible opinion.

Liable to be struck out as scandalous.

Privilege: evidences content of settlement negotiations.

Pressed. 

The evidence is relevant to the content of information held by the third to fifth respondents. 

There is no reference to settlement negotiations.

Relevant to AS [70], [71], [169], [170].

The first sentence is inadmissible expression of a legal opinion both in its reference to lawfulness and in reference to information being confidential and in relation to records being owned by the Applicants.  The reference to lawfulness is also a scandalous expression of opinion.  Once the objection is upheld to the first sentence, the second sentence is irrelevant.  The third sentence is both irrelevant and, insofar as it refers to confidential information, an inadmissible expression of opinion.  The final sentence is an irrelevant expression of the state of mind of Mr Palmer. 

  1.  

[34]

Irrelevant.

Inadmissible opinion.

Liable to be struck out as scandalous.

Privilege: evidences content of settlement negotiations.

Pressed. 

The evidence is relevant to the content of information held by the third to fifth respondents. 

Evidence does not refer to content of the negotiations.  

The fact of a communication being made is adduced as distinct from the content of the communication.

No admission contained in evidence covered by privilege.  

Relevant to AS [70], [71], [169], [170].

The objection is upheld for the first two of the reasons expressed by the objecting parties and further because it expresses irrelevant argumentative material concerning the state of mind of Mr Palmer.

  1.  

[35]

Irrelevant.

Inadmissible opinion.

Liable to be struck out as scandalous.

Privilege: evidences content of settlement negotiations.

Pressed.  Provides narrative.  Observations within witness’ experience. 

Evidence does not refer to content of the negotiations. 

No admission contained in evidence covered by privilege. 

Relevant to AS [70], [71], [169], [170].

Fourth sentence not read. 

As per item 21.

  1.  

[37]

Irrelevant.

Inadmissible opinion.

Pressed. 

Provides narrative.  Relevant to contention that the Applicants were not aware of the barrister’s involvement and the Applicants’ conduct in applying for relief. 

Relevant to exercise of equitable jurisdiction to grant a mandatory injunction and broad merits-based inquiry in equity.  Applicants are not bringing application for collateral purpose. 

Relevant to AS [53] to [55], [63], [64], [111], [115], [122].

Objection disallowed as to first three sentences and the final sentence which are factual and reveal matters of timing.  Objection upheld for the balance as they are irrelevant and argumentative material concerning the state of mind of Mr Palmer. 

  1.  

[38]

Irrelevant.

Privilege: evidences content of settlement negotiations.

Pressed. 

The evidence is relevant to the content of information held by the third to fifth respondents. 

Evidence does not refer to content of the negotiations. 

No admission contained in evidence covered by privilege.

Relevant to the role played by the barrister, and the kind of information held by him. 

The fact of a communication being made is adduced as distinct from the content of the communication.

Relevant to AS [70], [71], [169], [170].

The objection is upheld for the reasons expressed by the objecting parties.

  1.  

[39]

Irrelevant.

Inadmissible opinion.

Pressed. 

Provides narrative.  Relevant to contention that the Applicants were not aware of the barrister’s involvement and conduct in applying for relief. 

Relevant to exercise of equitable jurisdiction to grant a mandatory injunction and broad merits-based inquiry in equity.  Applicants are not bringing application for collateral purpose. 

Relevant to AS [53] to [55], [63], [64], [111], [115], [122].

The objection is upheld for the reasons expressed by the objecting parties.

  1.  

[40]

Irrelevant.

Inadmissible opinion.

Privilege: evidences content of settlement negotiations.

Not pressed. 

 

  1.  

[41]

Irrelevant.

Inadmissible opinion.

Not pressed. 

 

  1.  

[42]

Irrelevant.
Takes form of submission

Not pressed.

 

  1.  

[43]

Irrelevant.
Takes form of submission

Not pressed.

 

  1.  

[44]

Irrelevant.

Inadmissible opinion.

Liable to be struck out as scandalous.

Pressed.  The paragraph is relevant to the causes of action which may be advanced if the originating application is successful.  Relevant to AS [72], [132]-[168].

The objection is upheld for the reasons expressed by the objecting parties, save for exhibiting the letter which is exhibit CFP-4. 

  1.  

[45]

Irrelevant.

Inadmissible opinion.

Privilege: evidences content of settlement negotiations.

Not pressed. 

 

Footnotes

[1]The instruments documenting that arrangement included a US$ Aircraft Loan Facility Agreement dated on or about 28 June 2012 between GE and Palmer Aviation and Queensland Nickel and a Deed of Mortgage of Aircraft and Contractual Rights dated on or about 28 June 2012 between GE and Palmer Aviation.

[2]Some other third party creditors, not presently relevant, were also dealt with by the schedule: see order 2 of schedule 1B.

[3]By the time the deed was entered into, there was only one remaining special purpose liquidator, previous special purpose liquidators having validly resigned.

[4]The renumbering occurred because order 4 from schedule 1B had become unnecessary and was not made.

[5]See Parbery v QNI Metals Pty Ltd [2020] QSC 143.

[6]As against Queensland Nickel, the Applicants sought leave to proceed, that company being in liquidation.  However, no separate issues arise in relation to that part of the application, because it was common ground that if there was merit to the claim to substantive relief, then leave should be granted.

[7]See Smethurst v Commissioner of Police (2020) 94 ALJR 502 at [47] per Kiefel CJ, Bell and Keane JJ.

[8]Footnotes in original.

[9]Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at [65]-[72] per Gummow and Hayne JJ (Gleeson CJ and Crennan J agreeing at [19]); Bowen Central Coal Pty Ltd v Aquila Coal Pty Ltd [2011] QCA 334 at [37]-[38].

[10]Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at [65].

[11]Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622, cited with approval in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at [65].

[12]Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at [70]-[71].

[13]Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105 at [87].

[14]Bowen Central Coal Pty Ltd v Aquila Coal Pty Ltd [2011] QCA 334 at [39]; see also Sino Iron Pty Ltd v Mineralogy Pty Ltd (No 2) [2017] WASCA 76 at [131].

[15]Live Earth Resource Management Pty Ltd v Live Earth LLC [2007] FCA 1034 at [13]; Warner-Lambert Co LCC v Apotex Pty Ltd (2014) 311 ALR 632 at [70]; Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105 at [87].

[16]At [45], footnotes in original.

[17]Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 536.

[18]Hermescec v Carcagni [2008] NSWSC 183 at [23]; Jaddcal Pty Ltd v Minson [2011] WASC 28 at [55]-[60]; Reed Business Information v Seymour [2010] NSWSC 790 at [64]-[67].

[19]Bradto Pty Ltd v State of Victoria (2006) 15 VR 65 at [35]; Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105 at [84]; Siemens Gamesa Renewable Energy Pty Ltd v Bulgana Wind Farm Pty Ltd [2019] VSCA 318 at [107].

[20]See the Applicants’ written submissions at [7], [10], [11] and [77].

[21]The Applicants have applied in the Queensland Nickel proceeding to set aside order 1 of the Consent Orders. The Applicants contend that Queensland Nickel’s conduct in consenting to Mr Doyle QC acting for Vannin and disseminating confidential information breached the settlement deed, with the consequence that the indemnity provided for in order 1 of the Consent Orders is liable to be discharged.

[22]Cf Commonwealth v Verwayen (1990) 170 CLR 394 at 421 per Brennan J.

[23]See Speno Rail Maintenance Australia Pty Ltd v Metals & Minerals Pte Ltd (2009) 253 ALR 364 at [185] to [195].

[24]See Parbery v QNI Metals Pty Ltd (2018) 358 ALR 88 at [16], citing PT Bayan Resources TBK v BCBC Singapore Pte Ltd (2015) 258 CLR 1 at [64].

[25]See Parbery v QNI Metals Pty Ltd (2018) 358 ALR 88 at [17], citing Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 621 per Brennan J; Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at [35] per Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ; Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at [41]-[42] per Gaudron, McHugh, Gummow and Callinan JJ.

[26]See Parbery v QNI Metals Pty Ltd (2018) 358 ALR 88 at [22].

[27]See Parbery v QNI Metals Pty Ltd (2018) 358 ALR 88 at [23]-[26], citing Fletcher v Fortress Credit Corporation (Australia) II Pty Ltd (2011) 82 ACSR 352; Ninemia Maritime Corp v Trave Schiffahrtsgesellschaft mbH & Co KG (The Niedersachsen) [1984] 1 All ER 398 at 404 per Mustill J; Samimi v Seyedabadi [2013] NSWCA 279 at [68] per McColl JA; Curtis v NID Pty Limited [2010] FCA 1072 at [6] per Edmonds J.

[28]See Parbery v QNI Metals Pty Ltd (2018) 358 ALR 88 at [27]-[31], citing Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 at 321-2, 325 per Gleeson CJ and 327 per Meagher JA.

[29]See Parbery v QNI Metals Pty Ltd (2018) 358 ALR 88 at [39], citing Third Chandris Shipping Corporation v Unimarine SA [1979] QB 645 at 671 per Lawton LJ; Hua Wang Bank Berhad v Deputy Commissioner of Taxation [2010] FCAFC 140 at [21]-[23] per Lander, Middleton and Nicholas JJ; Severstal Export GmbH v Bhushan Steel Ltd (2013) 84 NSWLR 141 at [59] per Bathurst CJ (with whom Beazley P and Barrett JA agreed).

[30]See Parbery v QNI Metals Pty Ltd (2018) 358 ALR 88 at [40].

[31]See Parbery v QNI Metals Pty Ltd (2018) 358 ALR 88 at [41], citing Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at [50]-[51] per Gaudron, McHugh, Gummow and Callinan JJ.

Close

Editorial Notes

  • Published Case Name:

    QNI Metals Pty Ltd & Anor v Vannin Capital Operations Ltd & Ors

  • Shortened Case Name:

    QNI Metals Pty Ltd v Vannin Capital Operations Ltd

  • MNC:

    [2020] QSC 292

  • Court:

    QSC

  • Judge(s):

    Bond J

  • Date:

    22 Sep 2020

  • White Star Case:

    Yes

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2020] QSC 29222 Sep 2020Application for relief in terms of an order that each of the respondents serve an affidavit depositing to each respondent's knowledge concerning certain information passing between identified people on specific topics; application dismissed: Bond J.
Notice of Appeal FiledFile Number: Appeal 10534/2030 Sep 2020-

Appeal Status

Appeal Pending

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