[2017] QCA 238

COURT OF APPEAL

McMURDO JA

Appeal No 10657 of 2017
Appeal No 10441 of 2017
SC No 6593 of 2017

CLIVE FREDERICK PALMER	Applicant

v

STEPHEN PARBERY
MICHAEL OWEN	First Respondents

QUEENSLAND NICKEL PTY LTD (IN LIQ)	Second Respondent
ACN 009 842 068

BRISBANE

MONDAY, 16 OCTOBER 2017

JUDGMENT

McMURDO JA:  On 2 August 2017, the respondents filed an application for the grant of freezing orders over the assets of the appellants.  The application is part heard.  So far it has occupied four days of hearing in August and September.  After the evidence had apparently closed, the judge, Bond J, made directions for written submissions and adjourned the hearing for oral argument over two days on Tuesday and Wednesday of this week.
On 29 September 2017, the appellants applied to adduce further evidence.  In an ex tempore judgment, Bond J dismissed that application.
Two appeals were lodged against that order.  In CA 10441/17, there are now 11 appellants.  In the other appeal, CA 10657/17, Mr Palmer is the appellant.  Mr Palmer now seeks to broaden the scope of his appeal, by arguing that the judge should recuse himself for apparent bias.  I will return to that point.
The appeals were filed only last Thursday and Friday.  At the same time the appellants filed the present applications seeking an order that the further hearing of the applications before Bond J be adjourned pending the determination of their appeals.  No application has been made to his Honour for that adjournment, although, it seems, such an application was foreshadowed last week.
In essence, the applicants argue that their appeals will be rendered nugatory if this Court does not stay the further consideration of the case before the primary judge.  In the written submissions for Mr Palmer, it is said that if the orders which are sought today are not granted, “the effect will be that the freezing orders will stay in place until final hearing and determination of the appeal, which is to deliver practically the same effect as if they were in place until the hearing of the plaintiffs’ claim.”  It is submitted that the freezing orders would have serious and damaging impacts upon the appellants and other parties such as staff of some of the appellants’ businesses.  It is said that damage will be done which could not be remedied in the event that the appellants’ appeal is ultimately successful.
These are submissions which would be expected in the event that the primary judge does decide to make the freezing orders which are sought.  But, of course, that is not the present circumstance.  At present, the appellants’ case is that without the further evidence which, they say, the judge should have admitted, their prospects of resisting the applications against them are diminished.  It is against the risk that freezing orders will be made against them, unfairly without regard to that evidence, that they seek the protection of an order of this Court.  The order which they seek is not in the nature of a stay of the order which is under appeal.  That order was the refusal of an application to tender further evidence.  Rather, the order which is sought today is in the nature of an injunction pending the appeals.
There were submissions by or for each of the parties as to the merits or demerits of these appeals.  Obviously the task of the appellants is greater for the fact that they are challenging the exercise of a discretion.  But without a thorough consideration of the evidence which was admitted by his Honour, together with the evidence which his Honour refused to admit, it is difficult to form a fair impression of the merit of the appeals.  That examination, as the parties accepted, is not feasible in the course today’s application.  It is sufficient to say that the appeals are not clearly without merit.
The appellants are entitled to challenge the order of 29 September, as they do by their appeals, although that order was interlocutory in the sense that it did not affect any substantive rights.  But the fact that the order was both interlocutory and discretionary, will be a relevant consideration for the court hearing the appeals in deciding whether to set it aside.  In Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177, the plurality observed that “appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure.”  Their Honours cited a statement by Sir Frederick Jordan in Re the will of FB Gilbert (dec) (1946) 46 SR (NSW) 318 at 323 as follows:
“... I am of opinion that, ... there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights.  In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice.  The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.”
Those considerations are relevant also to the present applications.  The orders which are sought today are to delay the disposition of the application for freezing orders, in order that this Court should review the judge’s discretionary decision to refuse to admit further evidence, when that decision might have no consequence for the outcome.  It is obvious to say that an application for a freezing order will always require some expedition.  It is true that there are undertakings in place, which will extend until the determination of the application before the primary judge.  It is true also that the appellants have offered to extend the duration of those undertakings until the disposition of the present appeals, as the price for the orders which they seek today.  Nevertheless, the considerations which are referred to in the judgments which I have cited remain relevant.  There is an interest in the expedition of the determination of the applications before the primary judge.  There is a public interest in those proceedings, given the scale of the liquidation of the second respondent and the numbers of persons affected by that liquidation.
On the other hand, if the present applications are refused, and freezing orders are subsequently granted, it would be open to the appellants to challenge them upon the ground that the evidence which the judge refused to admit ought to have been admitted.  See Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at 497.  In that way, their challenge to the correctness of the judge’s decision of 29 September will not be lost.  In that context, of course, the freezing orders will have been made.  But it would be open to the applicants to apply to the judge or to this Court for a stay of those orders.  In that event, if the freezing orders are stayed, I am not persuaded that there would be the prejudice to the appellants which they now suggest.  The evidence upon which they rely in that respect is that before the primary judge, as to whether the freezing orders should be made.  The evidence does not address the particular context of a freezing order which has been stayed.
The argument by Mr Palmer, that the judge should recuse himself, has no present relevance.  It is not part of Mr Palmer’s appeal because, as yet, there has been no decision by the judge about the matter which could be the subject of an appeal.
For these reasons the position of the appellants is not irremediably prejudiced by the judge continuing to hear and decide the application which is before him.  It is not in the interests of justice that the determination of that application be delayed.  Each of the present applications will be refused.
In each application, the applicants or applicant will be ordered to pay the respondents’ costs of the application.