FEDERAL COURT OF AUSTRALIA Palmer, in the matter of Queensland Nickel Pty Ltd (In Liq) v Parbery, in his capacity as Liquidator of Queensland Nickel Pty Ltd (In Liq) (No. 2) [2016] FCA 1060 File number(s): QUD 580 of 2016 Judge(s): GREENWOOD J Date of judgment: 31 August 2016 Catchwords: PRACTICE AND PROCEDURE – consideration of whether particular paragraphs of an affidavit of Mr Palmer are to be struck out Date of hearing: 29 August 2016 Date of last submissions: 29 August 2016 Registry: Queensland Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 17 Counsel for the Special Purpose Liquidators: Mr T Sullivan QC and Ms C Muir Solicitor for the Special Purpose Liquidators: King and Wood Mallesons Counsel for Mr Ferguson: Mr N Ferrett Solicitor for Mr Ferguson: Kilmurray Legal Counsel for Mr Wolfe: Mr N Ferrett Solicitors for Mr Wolfe: Kilmurray Legal Counsel for Mr Clive Palmer: Mr Palmer appeared in person. ORDERS QUD 580 of 2016 IN THE MATTER OF QUEENSLAND NICKEL PTY LTD (IN LIQUIDATION) (ACN 009 842 068) BETWEEN: CLIVE FREDERICK PALMER Applicant AND: STEPHEN PARBERY IN HIS CAPACITY AS A LIQUIDATOR OF QUEENSLAND NICKEL PTY LTD (IN LIQUIDATION) (ACN 009 842 068) (and others named in the Schedule) First Respondent IN THE MATTER OF QUEENSLAND NICKEL PTY LTD (IN LIQUIDATION) (ACN 009 842 068) BETWEEN: MARCUS WILLIAM AYRES (and others named in the Schedule) Applicant AND: MINERALOGY PTY LTD (ACN 010 582 680) (and others named in the Schedule) Defendant JUDGE: GREENWOOD J DATE OF ORDER: 31 AUGUST 2016 THE COURT ORDERS THAT: 1. Mr Palmer file and serve upon the Special Purpose Liquidators, by Monday, 5 September 2016, submissions as to whether that part of paragraph 17 of his affidavit affirmed on 23 August 2016 identified at [8] of the reasons published today, together with paragraphs 45 to 64 and 67 to 107 ought be struck out. 2. The Special Purpose Liquidators file and serve upon Mr Palmer submissions in response to Mr Palmer's submissions, by Thursday, 8 September 2016. 3. The submissions contemplated by Orders 1 and 2 address the question of costs of the principal application. 4. Mr Ian Ferguson and Mr Daren Wolfe file and serve upon the Special Purpose Liquidators, by Monday, 5 September 2016, any submissions they wish to rely upon in relation to the question of costs of the applications filed by them. 5. The Special Purpose Liquidators file and serve upon Mr Ian Ferguson and Mr Daren Wolfe submissions in response to the submissions of those applicants by Thursday, 8 September 2016. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT GREENWOOD J: 1 On Monday, 29 August 2016, the Court made orders in relation to applications made by Mr Clive Palmer, Mr Ian Ferguson and Mr Daren Wolfe to set aside examination summonses issued to each of them which were returnable at 9.30am on Tuesday, 30 August 2016. Those applications also addressed issues concerning the production of documents. The Court published reasons in support of the orders made on 29 August 2016: Palmer, in the matter of Queensland Nickel Pty Ltd (In Liq) v Parbery, in his capacity as Liquidator of Queensland Nickel Pty Ltd (In Liq) [2016] FCA 1048. 2 In those reasons, I said that I would review each of the paragraphs of an affidavit of Mr Palmer affirmed 23 August 2016 and make directions as to those paragraphs which may properly stand as material supporting the application made by him and those paragraphs which may not properly stand. Mr Palmer's affidavit was provided to the Court on a "USB" device and consists of 45 exhibits containing 2,768 pages. 3 As I indicated in the earlier reasons, Mr Palmer sought an order setting aside the examination summons on a number of grounds. In the alternative to that order, Mr Palmer sought an order that the examination summons be varied in such form as the Court might consider appropriate. Mr Palmer also sought an order setting aside the order for production of documents and in the alternative, an order that that order be varied in such form as the Court might consider appropriate. Mr Palmer sought other procedural orders in relation to extensions of time for the filing of his application challenging the examination summons and production of documents. It was not necessary to make orders in relation to that procedural aspect of the matter. 4 The principal questions on the application were whether the examination summons obtained by the Special Purpose Liquidators ought to be set aside on the ground that an earlier summons had been issued to Mr Palmer on the application of the General Purpose Liquidators which rendered compliance with the later examination summons oppressive; and whether the power conferred upon the Court by the Corporations Act 2001 (Cth) to issue the summons was unconstitutional. The issues in relation to the production of documents were to be the subject of continuing discussions between Mr Palmer and the Special Purpose Liquidators. 5 Mr Palmer filed the affidavit in question in support of the particular orders sought by the application. However, Mr Palmer's affidavit addressed a wide range of matters. In the course of doing so, Mr Palmer makes assertions concerning the conduct of a range of individuals. Many of the assertions are not relevant to the questions in issue on the application. Many of the matters are not in an admissible form even if they were to be relevant. Many of the matters simply reflect allegations of improper conduct, bias or bad faith on the part of particular individuals. Many of the allegations relate to discussions Mr Palmer has had with particular individuals. Many of the allegations are not supported by foundation facts and they do not go to an identifiable remedy framed by the application in relation to the relevant individuals, in any event. 6 I have reviewed the paragraphs of Mr Palmer's affidavit. 7 Paragraphs 1 to 16 are to be admitted. 8 As to paragraph 17, I propose to strike out the words commencing in the second line with "and" to the end of the sentence ending with the phrase "in this affidavit". I propose to admit the remainder of paragraph 17. 9 Paragraphs 18 to 34 amount to submissions rather than matters of fact properly the subject matter of an affidavit. Nevertheless, I admit those paragraphs and treat them simply as submissions. I had regard to them when considering the matters in issue leading up to judgment on 29 August 2016. 10 I propose to admit paragraphs 35 to 41. 11 I propose to admit paragraphs 42, 43 and 44. 12 Paragraph 45 begins a discussion of political events in the period 2013 to July 2016. None of the paragraphs addressing that topic are relevant to the matters presently in issue and they all contain the vice described in [5] of these reasons. Accordingly, I propose to strike out paragraphs 45 to 64. 13 Paragraphs 65 and 66 of the affidavit reflect relevant contextual matters. 14 I propose to strike out paragraphs 67 to 107. 15 These paragraphs deal with a wide range of matters going to the history of the earlier administration of QNI and a wide range of discussions with various people. The matters at paragraphs 67 to 107 are not relevant to the question of whether the examination summons ought to be set aside. Many of these paragraphs set out argumentative matters rather than factual matters relevant to the application in question. 16 I propose to admit paragraphs 108 to 147 of the affidavit. It is not clear to me that these paragraphs of the affidavit are necessarily relevant to the relief sought by Mr Palmer in his application. However, these paragraphs set out the history of a range of litigation conducted by particular entities in particular jurisdictions. These matters may go to the question of whether that part of the summons relating to the production of documents is oppressive. However, as Mr Palmer indicated, he is in discussions with the Special Purpose Liquidators about the scope of the documents that might be said to be in his possession, custody or control and the date for the production of such documents. That part of the application has been stood over to enable caucusing to continue between those parties. At present, the affidavit is subject to a non-disclosure order. The affidavit will remain subject to that order until the completion of a process by which Mr Palmer will be given an opportunity to put on submissions as to whether the paragraphs which I propose to strike out, ought to be allowed to stand and be admitted. 17 I will make directions providing Mr Palmer with an opportunity to put on submissions as to the proposed orders. The Special Purpose Liquidators will also be given an opportunity to respond to Mr Palmer's submissions. The submissions ought to also deal with any question in relation to costs. Accordingly, I make directions in relation to those matters. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate: Dated: 31 August 2016 SCHEDULE OF PARTIES QUD 580 of 2016 IN THE MATTER OF QUEENSLAND NICKEL PTY LTD (IN LIQUIDATION) (ACN 009 842 068) Second Respondent: MARCUS WILLIAM AYRES IN HIS CAPACITY AS A LIQUIDATOR OF QUEENSLAND NICKEL PTY LTD (IN LIQUIDATION) (ACN 009 842 068) Third Respondent: MICHAEL ANDREW OWEN IN HIS CAPACITY AS A LIQUIDATOR OF QUEENSLAND NICKEL PTY LTD (IN LIQUIDATION) (ACN 009 842 068) IN THE MATTER OF QUEENSLAND NICKEL PTY LTD (IN LIQUIDATION) (ACN 009 842 068) Applicant: MICHAEL ANDREW OWEN Applicant: STEPHEN JAMES PARBERY Defendant: QNI METALS PTY LTD Defendant: QNI RESOURCES PTY LTD