FEDERAL COURT OF AUSTRALIA Parberry, in the matter of Queensland Nickel Pty Ltd (in liq) [2017] FCA 881 File number: QUD 580 of 2016 Judge: DOWSETT J Date of judgment: 9 May 2017 Catchwords: PRACTICE AND PROCEDURE – application to adjourn an examination pursuant to the Corporations Act 2001 (Cth) – where the examinee is allegedly unable to attend for medical reasons – application dismissed Legislation: Corporations Act 2001 (Cth) Date of hearing: 9 May 2017 Registry: Queensland Division: General Division National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Category: Catchwords Number of paragraphs: 11 Counsel for the Plaintiff: Mr T Sullivan QC Solicitor for the Plaintiff King & Wood Mallesons Counsel for Clive Frederick Palmer: Mr A Boe and Mr D Fuller Solicitor for Clive Frederick Palmer: Alexander Law ORDERS QUD 580 of 2016 IN THE MATTER OF QUEENSLAND NICKEL PTY LTD (IN LIQUIDATION) ACN 009 842 068 STEPHEN JAMES PARBERRY, MARCUS WILLIAM AYRES AND MICHAEL ANDREW OWEN IN THEIR CAPACITY AS LIQUIDATORS OF QUEENSLAND NICKEL PTY LTD (IN LIQUIDATION) ACN 009 842 068 Plaintiff JUDGE: DOWSETT J DATE OF ORDER: 9 MAY 2017 THE COURT ORDERS THAT: 1. the interlocutory application for an adjournment of Mr Palmer's examination be dismissed; 2. on or before 10am on 10 May 2017, the special purpose liquidators file and serve an outline of issues to be canvassed in the examination of Mr Palmer and an outline of submissions as to the basis upon which said liquidators claim to be entitled to examine Mr Palmer concerning such issues; 3. on or before 12pm on 10 May 2017, Mr Palmer file and serve any submissions in answer to the said liquidators' submissions; 4. the examination of Mr Palmer continue at midday on 10 May 2017 before the Honourable Justice Dowsett; and 5. costs be reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT DOWSETT J: 1 Mr Palmer is currently subject to an order for examination pursuant to the provisions of the Corporations Act 2001 (Cth). The matter has previously been before one of the Deputy District Registrars. On 28 March 2017 I directed that the examination be listed for further hearing before me at 10.15 am today, for the purpose of questioning Mr Palmer concerning the whereabouts of Mr Mensink. 2 I am told, and it is not disputed, that at about 8 pm last night a draft affidavit was served on the solicitors for the special purpose liquidators in these proceedings. It referred to Mr Palmer's health. It seems that the purpose of the affidavit was to found an application for an adjournment of the continued examination. The affidavit was sworn by a medical practitioner, Dr Seyed Reza Zabihi Madah. At about 10 pm last night the solicitors for the special purpose liquidators indicated that if the affidavit was to be relied upon, the deponent would be required for cross-examination. When the matter was called on this morning, I was informed that the doctor in question was not available for cross-examination. I indicated that if the affidavit was to be read, it would be necessary that he be produced for cross-examination, and that in the circumstances of this case, I was not willing to permit him to give evidence by telephone. The medical practitioner attended at Court at 2.15 pm today and has been cross-examined on his affidavit and associated matters. 3 I have no reason to doubt that the witness has in all respects acted appropriately as a clinician. He has, to some extent, relied upon concerns reported to him by Mr Palmer. There is no doubt that since some time in March, Mr Palmer has been suffering from a significant medical condition and that, during March and April, and perhaps as recently as 6 May 2017, he has experienced periods of pain, which symptoms have been relieved by medication. However that broad assessment of the evidence would not in my view be sufficient to justify an adjournment of the examination which was to continue today. I say that having regard to certain other evidence, the extended nature of the examination to date and the very substantial public interest in these proceedings. 4 In some circumstances, the possibility that a witness would suffer discomfort or inconvenience would justify the adjournment of the proceedings for a short time. However that course would not be appropriate in this case. In order to explain that conclusion, I should say something about Dr Madah's evidence. It seems that he first met Mr Palmer on 9 March this year when Mr Palmer reported to the medical centre with abdominal pain. Subsequent tests showed that he had gallstones. His condition deteriorated. He was treated with narcotics and other clinical treatment. On 20 March 2017, it was decided that his gallstones and gall bladder should be removed. This procedure was undertaken. Mr Palmer was discharged from the Wesley Hospital on the following day. Mr Palmer continued to receive painkillers described as Targin and recovered slowly over a period of two weeks. 5 During the course of his recovery his surgeon discovered that he had developed fluid and a cyst around the pancreas, a complication of pancreatitis. As a consequence he experienced left shoulder pain and severe periodic abdominal pain, for which he continues to be treated periodically with Targin. It is said that he has tried to return to work over the last two weeks, under medication, working two days a week. It is said that this attempt has been unsuccessful. He has contacted Dr Madah almost every day and updated him on his abdominal pain, general health and the need for painkillers. Dr Madah has visited him at home on several occasions. It seems that his condition was improving substantially until 5 or 6 May this year. Some time on 5 May, Mr Palmer's wife telephoned Dr Madah from a hotel in Brisbane, indicating that Mr Palmer was in pain. Dr Madah advised him to take Targin. 6 Mr Palmer is now at home, taking daily doses of Targin. It is said that he is likely to need Targin during the next month and until further investigation is done in June 2017. Concerning these matters, Dr Madah says that morphine-based analgesics such as Targin may affect a patient's memory and judgment and cause confusion. He also says that in the earlier stages of Mr Palmer's illness he observed that the illness and his use of Targin affected his memory and caused confusion. He considered that at the time of swearing his affidavit those effects could still be in place to some extent. He offers the view that Mr Palmer's current medical condition does not allow him to return to work, to attend Court or to give reliable evidence, and that it is not clear whether there will be a change in that condition prior to the review by the surgeon in June 2017. Further, Dr Madah believes that Mr Palmer needs a sustained period of rest and treatment so that he may return to work in early June, provided that his condition does not further deteriorate. There is, however, no suggestion that attending at Court to give evidence would, of itself, cause any aggravation of his condition. 7 Dr Madah's opinion, however, was modified by a film clip, exhibit 1. It shows a television interview with Mr Palmer on 1 May this year. In it, he appears to be in rude good health. He also appears to be entirely aware of what is going on around him, and to have responded entirely appropriately to questions by the interviewers. As I understand Dr Madah's evidence, he had seen earlier parts of the video but not the part that involved the interview. He agreed that there was no evidence of confusion or forgetfulness demonstrated in the interview. Of course, that does not detract necessarily from the fact that on 5 and 6 May 2017 his condition was otherwise. 8 That is not the only evidence, however, of Mr Palmer's activities during the period of his illness. It is, I think, common knowledge that Mr Palmer and numerous companies with which he has been directly or indirectly associated are involved in a substantial amount of litigation and have been for some time. In that regard it seems from the material that has been put before me that in mid-April 2017 he gave instructions to a solicitor for discontinuance of Court proceedings. There is an affidavit by one of his solicitors in which it becomes clear that he was willing to accept instructions from Mr Palmer at that time, and to act upon them. It is said that Mr Palmer has insight into his condition and understands that he is sometimes forgetful and sometimes has difficulty in understanding. Hence it seems unlikely that he would have engaged in what appears to have been a quite significant transaction were he of the view that he was not in a mental condition to do so. 9 There are documents concerning other transactions to similar effect. It seems that on 3 May 2017 Mr Palmer consented to a deed of settlement, again suggesting that he felt capable of attending to his duties. Similarly an appointment deed was executed by him on 3 May 2017. These documents all appear to have been of some commercial significance, and yet he was willing to trust his judgment in participating in the various transactions. In those circumstances it seems to me that the best view that can be taken of the evidence is that Mr Palmer is still suffering from some degree of illness, that there is to be further exploratory work done in June, that he will not be physically incapacitated or in any way adversely affected physically by giving evidence and that, at most, he is subject to occasional events during which he may be forgetful or confused if he is taking the relevant medication. The question of confusion or otherwise is, in the end, a matter going to credibility. 10 As I have said, it may well be that in some circumstances one might be content to leave the matter for resolution at some later stage if to do so would not cause inconvenience or disadvantage to others. If there were any risk that participation in these proceedings would cause further damage to Mr Palmer's health, I would probably not proceed. However, in the present circumstances it seems to me that it is in the public interest and in the interest of the creditors of the companies that the liquidators' investigation continues. As I have said, there is no suggestion of any likely physical damage to Mr Palmer in the event that I proceed in that way. 11 In those circumstances, I shall continue the examination tomorrow. However, the parties should seek to identify the matters which are to be addressed, and then make submissions as to whether or not such matters are properly the subject of further examination. To that end I adjourn the examination until midday tomorrow. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 11 September 2017