Mineralogy Pty Ltd v Sino Iron Pty Ltd - [2020] WASC 40

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   MINERALOGY PTY LTD -v- SINO IRON PTY LTD [2020] WASC 40
CORAM:   KENNETH MARTIN J
HEARD:   25 SEPTEMBER 2019
DELIVERED          :   13 FEBRUARY 2020
FILE NO/S:   CIV 3129 of 2018
BETWEEN:   MINERALOGY PTY LTD
First Plaintiff
CLIVE FREDERICK PALMER
Second Plaintiff
AND
SINO IRON PTY LTD
First Defendant
KOREAN STEEL PTY LTD
Second Defendant
CITIC LTD
Third Defendant
SINO IRON HOLDINGS PTY LTD
Fourth Defendant

Catchwords:

Practice and procedure - Permanent stay application by defendants - Abuse of process - Anshun estoppel - Liquidated claims all previously pursued then discontinued in multiple earlier proceeding - Explanation for discontinuance of claims - Whether claims can and should have been explicitly 'parked' for later determination - Forensic decision to discontinue and re-litigate claims an abuse of process - Case management considerations

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Permanent stay order issued

Category: B

Representation:

Counsel:

First Plaintiff	:	Mr L Livingston, Mr T March & Mr K Byrne
Second Plaintiff	:	Mr L Livingston, Mr T March & Mr K Byrne
First Defendant	:	Mr C M Scerri QC & Mr T B Maxwell
Second Defendant	:	Mr C M Scerri QC & Mr T B Maxwell
Third Defendant	:	Mr C M Scerri QC & Mr T B Maxwell
Fourth Defendant	:	Mr C M Scerri QC & Mr T B Maxwell

Solicitors:

First Plaintiff	:	Kane Jones
Second Plaintiff	:	Alexander Law
First Defendant	:	Allens
Second Defendant	:	Allens
Third Defendant	:	Allens
Fourth Defendant	:	Allens

Case(s) referred to in decision(s):

Aon Risk Services Australia v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Commonwealth of Australia v Albany Port Authority [2006] WASCA 185
Johnson v Gore Wood & Co [2000] UKHL 65; [2002] 2 AC 1
Mineralogy Pty Ltd v Sino Iron Pty Ltd [2015] WASC 454
Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105
Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 12] [2016] WASC 335
Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 13] [2016] WASC 403
Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 14] [2017] WASC 17
Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 16] [2017] WASC 340
Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 17] [2018] WASC 8
Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 18] [2018] WASC 307
Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 4] [2014] WASC 282
Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 8] [2015] WASC 473
Palmer v CITIC Ltd [2019] WASC 14
Patrick Jebb as trustee for the Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [2019] WASC 121
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589
Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 23
Sino Iron Pty Ltd v Mineralogy Pty Ltd [2019] FCA 675
Sino Iron Pty Ltd v Mineralogy Pty Ltd [2019] WASCA 80
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76
Timbercorp Finance Pty Ltd (in liquidation) v Collins [2016] HCA 44; (2016) 259 CLR 212
Tomlinson v Ramsay Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507
UBS AG v Tyne [2018] HCA 45; (2018) 92 ALJR 968
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378
Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509

KENNETH MARTIN J:

Introduction

The present action was commenced by the first and second plaintiffs ('Mineralogy' and 'Mr Palmer' respectively) by writ of summons indorsed with a statement of claim, on 11 December 2018 as against the defendants ('CITIC defendants').
I am currently dealing with the CITIC defendants' interlocutory application, made by their chamber summons filed 23 January 2019.
The primary question which arises is whether or not the whole action of these plaintiffs ought be stayed as an abuse of process of the court ‑ pursuant to O 20 r 19 of the Rules of the Supreme Court 1971 (WA) (RSC), or should otherwise be stayed in the court's inherent jurisdiction to constrain abuses of its process. An alternative, lesser, challenge also raised by the CITIC defendants' application as against Mineralogy is whether the action should be barred from proceeding any further, under an engagement of principles commonly referred to as an Anshun estoppel: see Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589. Related minor challenges are also raised by the plaintiffs.
The basis of the CITIC defendants' application and the contended abuse of process challenge is put against the plaintiffs' claim seeking to recover a substantial liquidated sum said to be contractually payable to Mineralogy by the CITIC defendants. These payments are said to be due by reason of an engagement of a written payment promise to Mineralogy made under cl 6.3 of two Mining Right and Lease Agreements ('MRSLAs'). These MRSLAs were entered respectively as between Mineralogy and each of the first defendant ('Sino Iron') and second defendant ('Korean Steel'), with each such MRSLA agreement made on 21 March 2006.
A previous 2017 decision that I delivered after a trial between these parties conducted in a separate proceeding CIV 1808 of 2013, has considered key obligation provisions within the same two MRSLA agreements. But that was all then litigated in a context of different MRSLA payment claim issues pursued then by Mineralogy against the same defendants. Specifically that trial concerned cl 8.2 of the MRSLAs over, essentially, the disputed interpretation of a term in each MRSLA that promised a royalty payment to Mineralogy of a 'Royalty Component B' ('RCB') ('RCB claim').
What was a problematically assembled royalty payment formula found within the MRSLA's definition of cl 8.2(a) needed to be evaluated at that trial as to its correct meaning ‑ to address the proper calculation of the level of royalty monies to be paid to Mineralogy by either Sino Iron or Korean Steel under each MRSLA agreement, termed the 'Mineralogy Royalty' (see post trial reasons for decision in Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 16] [2017] WASC 340 (Mineralogy [No 16]) delivered 24 November 2017 and, later essentially, constructionally affirmed on appeal as Sino Iron Pty Ltd v Mineralogy Pty Ltd [2019] WASCA 80). But the present litigation raises different questions as I will attempt to explain.

The current claim

The following is a very bare description of some aspects of the MRSLAs and of another agreement known as the Fortescue Co‑ordination Deed ('FCD') of 22 October 2008. Of course, it is now trite law that the precise text of all relevant clauses need to be carefully and holistically evaluated in their overall surrounding commercial context as regards any contractually interpretive exercise necessary towards the MRSLAs or the FCD. But my present objective is simply to provide a brief overview of the interrelationships between the participants in the present action and the claims that have been brought.

Sino Iron and Korean Steel

The liquidated money claim now advanced by the plaintiffs is different to the RCB claim dealt with in Mineralogy [No 16]. It is founded on a promise found in an earlier clause within each MRSLA, namely, upon cl 6.3.
This promissory term provides under a heading 'Commencement of production' under cl 6.3(a) and cl 6.3(b) of each MRSLA (whilst I have included the Sino Iron MRSLA promise below - the reference to a promise of 'Sino' seen below is replicated by a reference to a like MRSLA promise by 'Korean Steel' in the mirror provision of the Korean Steel MRSLA):
(a)Unless prevented from doing so by an act, matter or thing outside of Sino's control, by the doing of, or failing to do, an act by Mineralogy under this Agreement or otherwise, or a failure to obtain all Government Approvals necessary for it to do so (provided it has used its best endeavours to obtain such approvals in a timely manner) Sino must produce no less than 6,000,000 (six million) tonnes of Product no later than 7 years from the date of this Agreement. [As I interpolate (ie, by, in effect, 20 March 2013) for the 7 year period under cl 6.3(a).]
(b)If Sino fails to comply with paragraph (a) then it must, no later than one month following the date by which compliance was required, pay to Mineralogy an amount equivalent to the Mineralogy Royalty payable on the amount of Magnetite Ore required to produce 6,000,000 (six million) tonnes of Iron Ore Concentrate.
For convenience, I will refer to the plaintiffs' claims under cl 6.3 of each of the MRSLAs as the 'MRP money claim'.
Seen above, Mineralogy's cl 6.3(b) claim is conceptually tied to the level of the royalty payment obligation to Mineralogy that would otherwise have applied by the application of Royalty Components A and B to enough Magnetite Ore to produce six million tonnes of ore for each MRSLA.

CITIC

In the present action, an allied claim is also put against the third defendant ('CITIC Ltd') (with CITIC Ltd, as the ultimate parent corporation of Sino Iron and Korean Steel however, not being a contracting party to either of the MRLSAs). The related claim is essentially grounded on the contention that CITIC Ltd is alleged to be a guarantor and/or indemnifier of all MRSLA obligations of both Sino Iron or Korean Steel to Mineralogy - because the MRSLAs are both 'Project Agreements'. The relevant guarantee and indemnification obligations of CITIC Ltd arise per force of the FCD.
Again, a successful claim was made against CITIC Ltd by Mineralogy by reason of the same FCD guarantor obligations in the trial of CIV 1808 of 2013 (see Mineralogy [No 16] [782] - [815]). But that dispute did not touch upon or resolve CITIC Ltd's presently alleged exposures under this actions' arguments as to Sino Iron and Korean Steel's cl 6.3(b) MRSLA payment obligations to Mineralogy.

Mineralogy's claim under cl 6.3 MRSLA

Regarding the MRP money claims under cl 6.3 MRSLA obligation of Sino Iron and Korean Steel (and of CITIC Ltd as guarantor or indemnifier of such obligations to Mineralogy under the FCD), Mineralogy fundamentally asserts by its pleaded claims that the MRSLA's minimum production promises under cl 6.3(a) towards producing six million tonnes of Product (as defined in the MRSLA) at or before 20 March 2013 – were not met by Sino Iron or by Korean Steel.
Consequently, Mineralogy says that amount(s) equivalent to the Mineralogy Royalty (ie A and B) became payable to it under cl 6.3(b), to be assessed on the amount of Magnetite Ore required to produce six million tonnes of iron ore concentrate.
Mineralogy says that minimum payment obligation fell due and was payable by Sino Iron and Korean Steel.
Further, with the payment(s) not being made by those two entities, it says that CITIC Ltd, as their parent corporation, has also become liable under the FCD to pay those amounts to it, as a guarantor/indemnifier ‑ pursuant to the covenants of the FCD.

Mr Palmer's FCD and personal claims

Mr Palmer was not a covenanting party to the FCD. However, he is expressly named within a clause of the FCD as being an express object of CITIC Ltd's guarantee and indemnification promises as made to Mineralogy - as regards any loss or damage that Mr Palmer might suffer personally and arising by reason of a failure by Sino Iron or Korean Steel to perform their promises made under Project Agreements, (including thereby the MRSLAs). Privity issues aside, as regards the FCD, Mr Palmer now claims personal losses beyond the claims by Mineralogy.
So in the present action, Mr Palmer, who is for all intents and purposes clearly the controlling mind and, effectively, the alter ego of the corporation Mineralogy, attempts to advance his own personal claims against CITIC Ltd. That looks structurally to be an attempted fallback position, lest it ever be concluded that Mineralogy's present action is assessed (as the CITIC defendants now do so strongly submit) to be an abuse of the court's process, or if Mineralogy's claim is assessed as being barred by reason of an Anshun estoppel applicable against Mineralogy.
Mr Palmer's personal claim as currently pleaded, was verbally clarified during the course of oral arguments by his counsel at the hearing of this application (see ts 92 - 94). So clarified, it is to be more properly viewed as a claim pursued against CITIC Ltd 'in the alternative'. Its essence can be gleaned from the plaintiffs' statement of claim - pars 73(a), (d), (e) and (f).
So understood, Mr Palmer's personal claim proceeds on a basis that if by reason of an adverse conclusion reached against Mineralogy in this action, resulting in it being found to be precluded from successfully prosecuting this action, the MRP money claim, then as a result he would be personally deprived of Mineralogy's chose in action. Hence, for such adversely assumed circumstances, Mr Palmer argues that Mineralogy's (share) value would decline by the amount equivalent to the (lost) value to him of Mineralogy's (assumed as stayed or barred) chose of action seeking the MRP money under cl 6.3(b) MRSLA.
Critically, by pars 73(e) and (f) of the statement of claim, Mr Palmer contends his own loss as being:
(e)The value of Palmer's shareholding in Mineralogy has similarly declined by an amount equivalent to the value of the chose in action; [and]
(f)As a consequence of the matters alleged in paragraphs 1 to 69 and 73(a) to (e) above, Palmer suffered loss.
So seen, Mr Palmer's contended personal cause of action in respect of which he then seeks an indemnification from CITIC Ltd under cl 11.5(c) of the FCD (see par 27 and par 28 of the statement of claim), is for his personal loss incurred by reason of a decline in the value of the shares he holds in Mineralogy - upon Mineralogy's loss of its presently advanced chose of action, due either to the application of abuse of process, or by Anshun estoppel principles.
So, Mr Palmer presently seeks for himself what is referred to by some case authorities, as a shareholder's 'reflective loss' as regards a diminished value of Mr Palmer's shares as held in the Mineralogy corporate entity that has sustained the primary loss. Furthermore, Mr Palmer also contends that, in such circumstances, the indemnification covenant of the FCD expressed in his favour by CITIC Ltd towards his personal losses, is thereupon engaged.
Again, that is all said for circumstances where Mr Palmer's personal loss is said to arise by reason of Mineralogy being (assumed as) found to have engaged in the abuse of process of this court, or upon Mineralogy otherwise being barred by an application of Anshun estoppel principles against proceeding further with its MRSLA cl 6.2(b) money claims against Sino Iron, Korean Steel and CITIC Ltd in this action.
It might be observed immediately that there is a certain novelty to the FCD claim for a personal loss suffered by Mr Palmer, upon the adverse circumstances of an ascertained abuse of process or Anshun estoppel found as against the corporation he controls, Mineralogy.
For the purpose of evaluating the present application it is also necessary to record that the current action, CIV 3129 of 2018, is at least the fourth action run or begun out of this court by Mineralogy (albeit only the first advanced towards the ramifications of cl 6.3(b) of the MRSLAs by Mr Palmer) in respect of which a MRP money claim seeking liquidated amounts said to be due to Mineralogy pursuant to cl 6.3(b) of each MRSLA has been pursued against the first, second and third defendants.
I next turn to address what is a somewhat cluttered prior litigation background to the present application as regards the MRSLAs, Mineralogy, Mr Palmer the CITIC defendants and cl 6.3(b).

Mineralogy's multiple prior actions seeking the cl 6.3(b) MRSLA MRP money claims

CIV 1808 of 2013

Mineralogy first pursued a MRP money claim in this court under action CIV 1808 of 2013 against Sino Iron, Korean Steel and CITIC Ltd. But that action, as I explained in the Mineralogy trial reasons [No 16], was actually first commenced in the Supreme Court of New South Wales sometime before it was remitted to the Supreme Court of Western Australia under the national cross vesting regime. But the cl 6.3(b) money claim (which is the founding basis for the claim when the action began in New South Wales) was (after much pleading to-ing and fro-ing from 2013 until January 2017) ultimately not pursued at the trial, by Mineralogy as pleading amendments to its statement of claim excising the MRP money claims made under the leave to amend that I granted in January 2017.
A trial of the residual components of Mineralogy's action in CIV 1808 of 2013 was duly listed with these former MRP money claims removed.
I heard that trial in June 2017, delivering my reasons for decision which became Mineralogy [No 16] in November that year.
By the reasons in Mineralogy [No 16] I only resolved the interpretive true meaning dispute over a contentious RCB calculation payment formula specified under cl 8.2 of each MRSLA.

CIV 3011 of 2017

The same day that I delivered Mineralogy [No 16] (24 November 2017), Mineralogy filed a fresh writ in this court, now commencing as plaintiff action CIV 3011 of 2017.
The new action was directed against Sino Iron, Korean Steel and CITIC Ltd, as defendants. By that proceeding Mineralogy claimed the same MRP money alleged as due by Sino Iron and Korean Steel pursuant to cl 6.3(b) of each MRSLA.
Mineralogy again pursued CITIC Ltd as a further defendant, effectively, as alleged guarantor or indemnifier of those MRSLA payment obligations, via the covenants of the FCD. There looked to be no material differences between this cl 6.3(b) MRSLA money claim to the old cl 6.3(b) claim that had been a feature of CIV 1808 of 2013, before it was deleted under Mineralogy's January 2017 amendment to its CIV 1808 of 2013 statement of claim.
However, CIV 3011 of 2017 did not last long. It soon came to be unilaterally discontinued by Mineralogy (leave to discontinue not being required, as pleadings had then not closed, see RSC O 23 r 1) only five days later, at 29 November 2017.
That action did not subsist long enough to be entered in a CMC List, or be referred to any judge for case management.

CIV 3166 of 2017

But there soon followed again issued out of this court another action by Mineralogy. This time it was CIV 3166 of 2017 and pursuing again, the very same MRP money claims against Sino Iron, Korean Steel and CITIC Ltd. Mineralogy commenced this further action by its writ of summons, with an endorsed statement of claim, on 21 December 2017.
Akin to the now discontinued action that had been CIV 3011 of 2017, CIV 3166 of 2017 sought a payment to Mineralogy by Sino Iron and Korean Steel of $US97,802,035, plus default interest. Again this was claimed by reason of cl 6.3 of each MRSLA. Similarly to before, Mineralogy also sought that CITIC Ltd pay it $US195,604,070, again claimed by Mineralogy under the FCD guarantee and indemnification provisions, plus default interest.
Unlike the immediate predecessor, this Mineralogy action, CIV 3166 of 2017, lived long enough to be referred for case management. It was entered into my CMC List, on 16 January 2018.
On 31 January 2018 there was an application by the defendants under chamber summons, seeking a stay and barring relief akin to that presently sought in the current Mineralogy action.
On 16 February 2018, Mineralogy applied for leave in CIV 3166 of 2017 to add Mr Clive Palmer as second defendant and also to add Sino Iron Holdings Pty Ltd ('Sino Iron Holdings') as a fourth defendant in that action. But leave to that end was opposed by the defendants.
A minute of proposed amended statement of claim by the proposed plaintiffs contended that Mr Palmer was at all material times the person who was the ultimate beneficial owner of all the shares in Mineralogy. Sino Iron Holdings was sought to be added as an extra defendant on the basis that it was, in effect, the parent corporation of the first defendant, Sino Iron. Moreover, a pleaded claim of unconscionable conduct was now sought to be added. That may be seen from between par 55 and par 83 of the submitted minute of amended statement of claim by Mineralogy.

By par 84 through par 85 of that proposed amended statement of claim, Mr Palmer looked to be pursuing an indemnification claim against CITIC Ltd - in terms akin to that as is now pursued by him in the current action.
On 26 February 2018, I programmed by directions, a hearing of what were then the extra plaintiff and defendant contested joinder applications in respect of Mr Palmer and Sino Iron Holdings, as well as the hearing of the defendants' abuse of process strikeout application which was advanced against the whole action by the defendant's then chamber summons application of 31 January 2018. I duly fixed a special appointment hearing for 26 June 2018.
Correlative directions were also issued then in terms of the parties' to be exchanged rival affidavit evidence and their rival written submissions relied upon at the hearing of all those applications, under my orders of 26 February 2018.
However, it came to pass that on 8 May 2018, Mineralogy now filed a notice advising it was wholly discontinuing its CIV 3166 of 2017 as against all defendants. Given the defendants had not by then filed their pleaded defences, the pleadings were not closed. Hence, leave to discontinue was not then required by Mineralogy. By a chamber summons of 7 June 2018, the defendants made application now seeking indemnity costs orders against Mineralogy, alternatively for special costs orders, pursuant to s 280 of the Legal Profession Act 2008 (WA) as regards defendants' costs incurred in resisting the now discontinued proceedings to the point of their unilateral discontinuance by Mineralogy. I listed the defendants' costs application for a hearing on 20 September 2018.
The defendants' written submissions pursuing those indemnity and/costs or special costs orders were filed on 6 August 2018. Mineralogy, responded opposing those costs orders, by its written submissions of 27 August 2018.
On 6 September 2018, upon the parties' consensual requests, I adjourned the hearing of the application seeking special costs orders. The defendants' unresolved application for indemnity costs (or for special costs orders) has not otherwise been pursued.
Hence, Mineralogy's further action CIV 3166 of 2017, stands as wholly discontinued by Mineralogy. There is still an unresolved costs orders issue over costs orders sought by the defendants against Mineralogy, with indemnity costs orders actively opposed.

CIV 3129 of 2018 - present action

On 11 December 2018, Mineralogy and Mr Palmer commenced the present action, CIV 3129 of 2018. The plaintiffs' writ was issued against Sino Iron, Korean Steel, CITIC Ltd and Sino Iron Holdings, as defendants.
The plaintiffs' statement of claim as endorsed to this writ of summons was a case of deja vu. It displayed essentially, an identical looking series of Mineralogy MRP money claim pleas, articulating all over again in this court, Mineralogy's refreshed pursuit of the cl 6.3(b) MRSLA money amounts. Present as well were the FCD based personal indemnity claims made by Mr Palmer against CITIC Ltd, pleaded out at par 70 through par 73. The current pleas are in terms closely akin to the amended statement of claim of 16 February 2018 as had been filed in the as discontinued CIV 3166 of 2017 (albeit this time minus the unconscionable conduct pleas, which had been par 55 through par 83 in the prior minute of pleading).
Unsurprisingly, all the CITIC defendants have filed a further interlocutory application by their chamber summons of 23 January 2019. Again they seek a permanent stay - this time of the present action as an alleged abuse of power and, as well, to strike out or dismiss the present action.
By consent orders of 15 January 2019, I programmed a hearing of the defendants' foreshadowed argument. This was subsequently listed for a special appointment hearing on 25 September 2019.

The primary question on the present application

The primary question now arising is whether the plaintiffs' latest action, CIV 3129 of 2018, can be allowed to proceed. Or, should it be permanently stayed as an abuse of process as the CITIC defendants contend (alternatively, be assessed as barred, by reason of principles of Anshun estoppel).
This all arises, of course, in the context of Mineralogy and Mr Palmer now pursuing, in aggregate, amounts from the CITIC defendants approaching $US200 million plus interest - under a contended engagement in Mineralogy's favour of MRP money amounts due to it under each MRSLA (also said to be guaranteed or indemnified by CITIC Ltd by the FCD to Mineralogy and, as well, to Mr Palmer).
For reasons which follow, I am, at the end, of the view that the present action is, indeed, to be assessed as an abuse of the process of the court as it is currently pursued by both plaintiffs. Thus, it must be permanently stayed against all defendants. That end conclusion requires me to undertake a deep analysis of the procedural history in this court of the multiple civil actions of Mineralogy just discussed.

Evidence in the present application

For the present application of the defendants there is an overwhelming amount of evidentiary material, recalling countless past pleadings, directions hearings, orders, applications and determinations all re‑assembled and relied upon again for the purposes of advancing the present application. Having been case manager of all of the Mineralogy related litigation since October 2016, I have been a personal witness to the most recent documents and the procedural history that has been assembled again concerning the historical events around all these actions. Revisiting them over again for the purpose of evaluating the present application of the defendants has not enhanced the quality of the experience.
The basic underlying facts, however, need to be meticulously assembled and redigested yet again in order to reliably evaluate in a holistic context the present application which, as the plaintiffs rightly point out, if acceded to, is an exercise of an extreme remedy as against them.
It is also true that success for the CITIC defendant applicants upon the present application would deny the plaintiffs from obtaining a determination 'on the merits' of their MRSLA grounded MRP money claims. They, of course, have not yet ever been finally evaluated by a court on their merits - a consideration I recognise and must weigh in the overall balance of considerations as against granting the present permanent stay relief as is sought by the defendants.
At the outset, then, I need to collect and identify the extensive materials that were read and relied upon by each of the protagonists whilst pursuing the present application, and in its resistance.
For the CITIC defendants, they read and rely upon several affidavits sworn by a partner of the law firm of longstanding record for those parties. So read are three affidavits by Ian Peter Scott O'Donahoo; the first of these is sworn 22 January 2019 (comprising 14 volumes and 2,840 pages), the second is sworn 2 May 2019 (95 pages) and the third is sworn 12 June 2019 (321 pages).
Resisting the CITIC defendants' applications, the plaintiffs read and rely on an affidavit of Clive Frederick Palmer affirmed 8 May 2019 (249 pages). In addition to Mr Palmer's affidavit there is an affidavit made by Kane Christopher Jones, Mineralogy's current lawyer of record, sworn 18 September 2019 (94 pages).
In furtherance of the present application, each side filed extensive written submissions. To that end I hold:
(a)the CITIC defendants' first tranche outline of submissions in support of the application of 13 June 2019 (38 pages);
(b)written submissions by the plaintiffs filed in opposition to the defendants' application filed 12 July 2019 (22 pages); and
(c)a written outline of submissions in reply by the defendants, filed 30 July 2019 (15 pages).

Abuse of process - legal principles

UBS AG v Tyne

The CITIC defendants' as submitted list of case authorities relied upon comprised of 75 cases, with particular emphasis directed at the reasons in a relatively recent decision of the High Court of Australia, rendered there in a context of an abuse of process contention upheld in respect of the filing of subsequent civil litigation commenced out of the Federal Court of Australia: see UBS AG v Tyne [2018] HCA 45; (2018) 92 ALJR 968.
The plaintiffs' submitted list of case authorities referred me to 24 case authorities, with, as well, very extensive reference made to many paragraphs from the High Court's reasons in UBS AG v Tyne. Clearly, that decision is central to the principles governing the resolution of the CITIC defendants' stay application.
Recently in this court that decision was explained and applied by Vaughan J (as his Honour then was). See Patrick Jebb as trustee for the Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [2019] WASC 121 [119] - [137]. I would direct my initial reference to all those paragraphs from within his Honour's reasons, which I will not repeat verbatim, but respectfully adopt. I also, with respect, adopt his Honour's earlier observations concerning applicable legal principles towards abuse of process applications, at [102] - [118].

Broad principles

From that base, I can proceed, of course, non‑exhaustively, to identify some of the broader principles towards the CITIC defendants' present abuse of process challenges advanced in a present context of Mineralogy's multiple prior civil actions pursuing like relief grounded upon the alleged engagement of cl 6.3(b) in each MRSLA. I now mention the following principles:
(a)The High Court of Australia has stated on several occasions that the genres of potential abuses of the court's process are not susceptible to being delineated by reference to closed categories: see, for instance, Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [9] and in Tomlinson v Ramsay Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 [25].
(b)Any circumstance by which the invocation and use of a court's procedures would be unjustifiably oppressive to a party, or would be likely to bring the administration of justice into disrepute, can constitute an abuse of process: see Tomlinson [25] and Timbercorp Finance Pty Ltd (in liquidation) v Collins [2016] HCA 44; (2016) 259 CLR 212 [69].
(c)The power of a court to dismiss proceedings as an abuse of process must be exercised with extreme caution, and only then in most exceptional or extreme cases: see Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 392 - 393.
(d)The party contending a court should take steps to inhibit a contended abuse of process carries the onus of persuading the court to that end: see Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, 529.
(e)Whether or not there is an abuse of the court's process under prevailing circumstances that are examined will pose a 'yes' or 'no' question to be addressed. The evaluation does not carry any exercise of judicial discretion. Once an abuse of process is proved, an appropriate order or remedy to address the abuse must follow: see Batistatos [7]; Commonwealth of Australia v Albany Port Authority [2006] WASCA 185 [83].
(f)All relevant facts and circumstances underlying the evaluative assessment as to an alleged abuse of the court's process will need to be considered and weighed under a bespoke evaluation. The evaluation will also take into account the public interest in preventing the relitigating of quelled disputes.
(g)An abuse of process event can extend beyond a mere situation of a party seeking to relitigate matters or issues which have been finally decided. There may be an abuse of process found by a person seeking to litigate matters which could and should have been litigated in earlier proceedings, as was observed by Lord Bingham of Cornhill in an important House of Lords decision concerning abuses of process, namely Johnson v Gore Wood & Co [2000] UKHL 65; [2002] 2 AC 1, 31. See also Tomlinson [26], where four members of the High Court of Australia had observed:
... [M]aking a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel. (my emphasis)
(h)Vaughan J observed in Jebb v Superior Lawns [119] by reference to UBS AG v Tyne, that an abuse of process can be ascertained notwithstanding (1) the factual merits of the underlying claim having not been determined and (2) the delay in prosecuting the claim not rendering a potential fair trial as impossible.
(i)The result of the appeal to the High Court in UBS AG v Tyne had manifested a 4:3 split within the Court. The minority reasons - namely, joint reasons of Nettle and Edelman JJ and the separate reasons to the same result by Gordon J - display that the residual disagreement within the Court was not over the underlying principles concerning abuse of process. Nor was there any dispute of principle towards Anshun estoppel principles. Rather, the divergence was over the applicability of settled principles to the presenting circumstances under that appeal.
(j)It may be seen that the plurality reasons delivered by Keifel CJ, Bell and Keane JJ in UBS AG v Tyne display a certain level of emphasis towards wider public interest at stake, extending beyond those of the participant litigating parties. Their Honours of the plurality had said at [38]:
The timely, cost effective and efficient conduct of modern civil litigation takes into account wider public interests than those of the parties to the dispute ... As the joint reasons in Aon Risk Services Australia Ltd v Australian National University explain, the 'just resolution' of a dispute is to be understood in light of the purposes and objectives of provisions such as s 37M of the [Federal Court of Australia Act 1976 (Cth)].
(k)Vaughan J has also observed in Jebb v Superior Lawns at [128] that for Western Australia the policy goals and objects of O 1 r 4A and r 4B of the Rules of the Supreme Court 1971 (WA) (RSC) must be weighed in the overall evaluation of those applications, taking into account the procedural law as administered by a court (referring in turn to UBS AG v Tyne). In UBS AG v Tyne the plurality said further at [38]:
Integral to a 'just resolution' is the minimisation of delay and expense. These considerations informed the rejection in Aon of the claimed 'right' of a party to amend its pleading at a late stage of the litigation in order to raise an arguable claim. The point is made that a party has a right to bring proceedings but that choices are made respecting what claims are made and how they are framed. Their Honours speak of the just resolution of the dispute in terms of the parties having a sufficient opportunity to identify the issues that they seek to agitate. The respondent's argument in Aon, that the proposed amendment to raise the fresh claim was a necessary amendment to avoid multiple actions, did not avail. As their Honours observe, if reasonable diligence would have led to the bringing of the claim in the existing proceedings, any further proceeding might be met by a stay on Anshun grounds. (my emphasis)
(l)In UBS AG v Tyne the plurality had further observed at [45] as regards those parties' 'tactical manoeuvring' and towards the scenario of multiple corporation entities, but with a single controlling corporate mind:
It is to hark back to a time before this Court's decisions in Aon and Tomlinson and the enactment of s 37M of the FCA to expect that the courts will indulge parties who engage in tactical manoeuvring that impedes the 'just, quick and efficient' resolution of litigation. To insist, for example, on 'inexcusable delay' as a precondition of the exercise of the power to stay proceedings as an abuse of process is to fail to appreciate that any substantial delay is apt to occasion an increase in the cost of justice and a decrease in the quality of justice. And other litigants are left in the queue awaiting justice. Further, there is no reason why the courts should tolerate attempts to manipulate other parties and the courts themselves by the deployment, by a single directing mind and will, of different legal entities under common control for such a purpose. The concern is as to whether the processes of the court are being abused. Given this is the central concern the circumstance of the abuse is effected by the use of multiple entities orchestrated by a single mind and will is no reason to tolerate it. (my emphasis)
(m)As regards 'serial actions' commenced, but then discontinued, the plurality in UBS AG v Tyne had continued at [46] to observe:
Nor does the undue vexation which a stay of proceedings is concerned to prevent arise only when proceedings in respect of the same issue have been concluded by a judgment on the merits. Serial proceedings discontinued prior to judgment would be an obvious example of an abuse of process. The pursuit of substantially the same claim by serial proceedings conducted by different entities under common control is no less obviously an abuse of process. (my emphasis)
[The two observations as I relate above under (l) and (m), I assess, have a particular degree of close resonance to the present discontinuance circumstances by Mineralogy as already related - with this action being the fifth civil action run out of this court advancing Mineralogy's cl 6.3(b) MRSLA based MRP money claims directed against Sino Iron and Korean Steel.]
(n)Towards the UBS AG v Tyne plurality's observation now seen under (l) concerning multiple corporate entities orchestrated by a single mind and will (made there concerning Mr Tyne) I note as well the further observations of the plurality at [55]:
Mr Tyne perceived a forensic advantage to the Tyne-related parties in holding back the Trust's claim. This was a decision that, were Telesto's claim to be stayed, would lead to a duplication of resources and increased costs, and would delay the resolution of the dispute between the Tyne-related parties and UBS. Hiving off the Trust's claim, with a view to bringing it in another court after the determination of the SCNSW proceedings, was the antithesis of the discharge of the duty imposed on parties to civil litigation in the Supreme Court of New South Wales and in the Federal Court. That duty is to conduct the proceedings in a way that is consistent with the overriding/overarching purpose. (my emphasis)
(o)Towards an issue of illegitimate oppression by bringing successive civil actions, the plurality justices duly concluded in UBS AG v Tyne at [58] and [59], in the following terms:
The fact that UBS is a large commercial corporation does not deny that permitting the Trust's claim to proceed will subject it to unjustifiable oppression. That oppression is found not only in the significant delay in the resolution of the dispute and the inevitability of increased costs to UBS. At its core is the vexation of being required to deal again with claims that should have been resolved in the SCNSW proceedings. The fact that UBS had not been required to admit or defend the Trust's claim does not lessen that vexation ... On the final determination of the SCNSW proceedings, it was reasonable for UBS to order its affairs upon the understanding that the dispute between it and Mr Tyne, and the entities that he controlled, arising out of those dealings was at an end.
For the Federal Court to lend its procedures to the staged conduct of what is factually the one dispute prosecuted by related parties under common control with the attendant duplication of court resources, delay, expense and vexation, as Dowsett J found, is likely to give rise to the perception that the administration of justice is inefficient, careless of costs and profligate in its application of public moneys. The primary judge was right to permanently stay the proceedings as an abuse of the process of the Federal Court. (my emphasis)
(p)Separately aligning himself to the reasons of Kiefel CJ, Bell and Keane JJ, Gageler J also concluded in UBS AG v Tyne that the permanent stay should be reinstated, for the plurality reasons as had been expressed [61]. However, his Honour, in light of the close division of opinions in the court over the end result, added his own further observations (in particular endorsing the reasoning from the joint judgment in Tomlinson) at [62] observing:
The doctrine of abuse of process, in its application to the assertion of rights or the raising of issues in successive proceedings, was there explained to be informed in part by considerations of finality and fairness similar to those which informed the doctrine of estoppel but to be inherently broader and more flexible than that doctrine. (my emphasis)
(q)Further, Gageler J at [64] also endorsed the observations of Lord Bingham of Cornhill in Johnson v Gore Wood, as regards abuse of process and, within that context, to the role of a principal shareholder and controlling mind such as seen there with Mr Johnson, standing behind multiple companies.
(r)By reference to some of the present rationalisations articulated by Mr Palmer under his affidavit filed in resisting the present application (and to which I will later refer at greater length) both on his own behalf and on behalf of Mineralogy, the further observations as made by Gageler J in UBS AG v Tyne (directed at the overarching position of control held by Mr Johnson in Johnson v Gore Wood) on my view, also carry a significant resonance. Gageler J had observed at [80] - [83]:
Gauged solely by reference to the interests of the Trust, Mr Tyne's explanation of why the trustee claims had not been pursued in the SCNSW proceedings was not unreasonable. Having regard to the interests of UBS and the public interest in the timely and efficient administration of civil justice, however, I cannot regard it as providing an explanation as to why it was reasonable for the claims of the Trust to have been held in abeyance rather than to have been brought in the SCNSW proceedings so as to have allowed all relevant issues to have been determined in those proceedings. Were it shown in the context of the SCNSW proceedings to have been consistent with the timely and efficient resolution of the overall matter in dispute for Telesto's clients to have been pursued separately and in advance of those of the trustee, that could have been achieved by appropriate case management orders which could have resulted in the trustee being bound by findings of fact and determinations of law common to both sets of claims. And UBS's application for a permanent stay of Telesto's claims, had it proceeded, would have proceeded on the basis apparent to the parties and the Supreme Court that success on the application would have left the pending claims of the Trust unresolved.
What was not reasonable, having regard to the reality of the private and public interests involved, was for Mr Tyne to take it upon himself to hold the claims of the Trust in abeyance with a view to pursuing them in separate proceedings if it turned out that Telesto's claims were for some reason not successful.
The primary judge's conclusion that Mr Tyne had given no proper explanation of why the trustee's claims had not been pursued in the SCNSW proceedings was, in my opinion, not only open but correct. (my emphasis)

With all those principles in mind, I can turn back to the facts and procedural history underlying the present application of the defendants.

Evaluation of the issue for determination

Returning to the question to be determined, there now arises a need for the application of those related abuse of process principles to the underlying facts. To that end, the next sections of these reasons seek to assemble chronologically something of a summary of more significant facts and events which have occurred as regards the pursuit in this court of the MRSLA cl 6.3(b) MRP money claim by Mineralogy over time since 2013. Plainly, it is not simply feasible to canvass in minute detail all nuances of all events unfolding since the commencement of CIV 1808 of 2013 (then out of the Supreme Court of New South Wales) before that action was remitted for hearing under the national cross‑vesting regime legislation to this court.
Nor do I propose to re-traverse the subject of what is now extensively contained across multiple reasons for decision as rendered in the saga of civil litigation between all these parties in this court, including Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 13] [2016] WASC 403 (Mineralogy [No 13]), Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 14] [2017] WASC 17 (Mineralogy [No 14]), my primary reasons following civil trial in Mineralogy [No 16] and my aftermath decision, Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 17] [2018] WASC 8 (Mineralogy [No 17]). I refer as well to the further reasons of Quinlan CJ in Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 18] [2018] WASC 307 (Mineralogy [No 18]).
An early chronology of the proceedings then, to August 2014, can be usefully found within Edelman J's reasons published as Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 4] [2014] WASC 282 (Mineralogy [No 4]) determined on the papers and delivered on 5 August 2014. In the subsequent reasons of Tottle J in Mineralogy Pty Ltd v Sino Iron Pty Ltd[No 8] [2015] WASC 473 (Mineralogy [No 8]), his Honour had adopted that chronology of events.
Under the next section of these reasons, I will seek to assemble a working body of chronological underlying facts. To that end, I have worked heavily from the chronology of events within the defendants' written outline of submissions of 13 June 2019 - which can be seen to refer to the source documents, most of which can in turn be located in Mr O'Donahoo's first affidavit. I did not discern at the hearing of this present application that any of the assembled background facts by the defendants were in serious dispute. Rather, the dispute is over what emerges from them all.

A chronology of underlying facts and events

On 18 March 2013, Mineralogy commenced proceedings out of the Supreme Court of New South Wales (NSW proceeding SC 2013/82818) seeking then, amongst other things, payment of 'minimum production' royalties claimed as due under cl 6.3 of the MRSLAs and, as well, for orders in respect of the guarantee provided by CITIC of the payment obligations of its submissions to Mineralogy.
On 30 April 2013, New South Wales civil proceeding SC 2013/82818 was transferred to the Supreme Court of Western Australia and under the national cross-vesting regime. Here, it was then re-numbered in this court as CIV 1808 of 2013.
Under an Amended Statement of Claim pleading of 3 June 2013 filed in CIV 1808 of 2013, and then by a Further Amended Statement of Claim of 14 August 2013, Mineralogy claimed from the defendants payment of 'minimum production' royalties, alleged to be due to Mineralogy, by reason of cl 6.3 of the MRSLAs. Mineralogy also sought then to recover those amounts from CITIC Ltd under a CITIC guarantee and a CITIC indemnity to Mineralogy.
On 2 December 2013, in CIV 1808 of 2013, Mineralogy filed a Further Amended Reply and Amended Defence to Amended Counterclaim, by which it then had pleaded that RCB was not capable of calculation. That was alleged on a basis that the MRSLAs were then terminated, by reason of alleged frustration of those agreements.
Also on 2 December 2013, Mineralogy in CIV 1808 of 2013 sought an urgent hearing, upon the issue of whether the MRSLAs were terminated by reason of frustration, as a preliminary matter to be listed for a single-day trial in December 2013.
On 4 December 2013, Edelman J refused Mineralogy's application seeking the urgent trial of preliminary issues, including upon whether the MRSLAs were frustrated by reason of RCB being incalculable.
On 10 December 2013, Mineralogy filed a Second Further Amended Statement of Claim. Under that iteration, Mineralogy now withdrew (ie, deleted) the former MRP money claims. Instead, Mineralogy now sought declarations to the effect that, inter alia, the MRSLAs had been frustrated.
By reference to the associate's record, the order 1 made by Edelman J on 20 March 2014 was this:
After the filing of the proposed third further amendment of statement of claim, and consequential amendments by the Defendants, there be no further amendments without leave.
On 15 August 2014, Mineralogy filed a Third Further Amended Statement of Claim ('3FASOC'). The 3FASOC did not articulate any relief related to the former MRP money obligations arising under the MRSLAs. This pleading made no mention at all of cl 6.3 of the MRSLAs.
However, on 19 August 2015, Mineralogy now commenced a fresh civil proceeding out of this court which did include the earlier seen MRP money claims - CIV 2303 of 2015 (see POD‑58 at pages 2411 - 2422 of Mr O'Donahoo's first affidavit).
Within the new action, CIV 2303 of 2015, Mineralogy was plaintiff. Sino Iron was first defendant, Korean Steel second defendant, with CITIC Ltd named as third defendant. The writ displayed an accompanying statement of claim. I refer to pars 11 and 12 of a plea which, as against Sino Iron and then Korean Steel, is seen to refer to MRSLA cl 6.3(a) and cl 6.3 (b) within those defendants' respective MRSLA. Also seen was Mineralogy's assertion of a contended failure of Sino Iron and Korean Steel to produce not less than six million tonnes of Product (as defined) within seven years of each MRSLA being entered. Mineralogy sought $US98,298,000 against each of Sino Iron, see par 11(d), and Korean Steel, see par 12(d). As against CITIC Ltd, the FCD is seen pleaded at pars 13 and 14 of the statement of claim, in invoking cl 11.5 thereof. By par 15 it was pleaded CITIC Ltd was liable to pay to Mineralogy, by reason of cl 11.5 of the FCD, the same money amounts as were payable by Sino Iron and Korean Steel pursuant to cl 6.3(b) of the respective MRSLAs.
On 31 August 2015, Mineralogy now commenced a third civil proceeding in the Supreme Court of Western Australia, CIV 2368 of 2015, seeking various further relief I do not need to elaborate upon.
However, both those new 2015 actions CIV 2303 of 2015 and CIV 2368 of 2015 as commenced by Mineralogy, came to be permanently stayed, upon applications of the defendants, as abuses of process. Chaney J had made those orders under his Honour's reasons: see Mineralogy Pty Ltd v Sino Iron Pty Ltd [2015] WASC 454, 27 November 2015. Chaney J replaced Edelman J as the case manager of the Mineralogy litigation during 2015 (following the appointment of Edelman J to the Federal Court of Australia).
Chaney J's reasons of 27 November 2015 were delivered in both actions, CIV 2303 of 2015 and CIV 2368 of 2015. As mentioned, his Honour granted a permanent stay in both of those actions.
At [3] of his reasons, Chaney J identified Mineralogy's pleas within CIV 2303 of 2015 under cl 6.3(b) of the MRSLAs claim for the aggregate amount, then, of $US196,596,000. His Honour duly observed at [4] upon a counterclaim by the CITIC defendants raised in the earlier action, CIV 1808 of 2013:
The defendants also plead that they have no liability to make a payment under cl 6.3(b) of the MRSLAs because the failure to produce 6 million tonnes within seven years of the date of the MRSLAs occurred by reason of matters or things outside of Sino Iron and Korean Steel's control and are thus are excused by cl 6.3(a) from the requirement to make the payment under cl 6.3(b).
Chaney J continued within [4]:
Although the money claim made in CIV 2303 [of 2015] does not presently form part of Mineralogy's pleading in CIV 1808 [of 2013], it did form a component of five of the eight previous versions of Mineralogy's statement of claim. It is clearly a matter capable of being dealt with in CIV 1808 [of 2013]. Similarly, CITIC's liability under the Fortescue Coordination Deed has previously formed part of the claim in earlier versions of Mineralogy's statement of claim in CIV 1808 [of 2013], and whilst not part of the present pleading, it clearly could form part of the claim in CIV 1808 [of 2013]. It is clear that determination of the cl 6.3 construction issues in CIV 1808 [of 2013] directly affects the determination of the amount, if any, to which Mineralogy is entitled to be paid under cl 6.3(b). (my emphasis in bold)
Then at [12] of Chaney J's reasons, he noted Edelman J's earlier observations as made in CIV 1808 of 2013 concerning Mineralogy's problematic multiple pleading amendments in CIV 1808 of 2013 ‑ under the reasons published as Mineralogy [No 4] [5] - [6]. Chaney J also noted Edelman J's further observations in Mineralogy [No 4] [53]:
There will soon come a point, if it has not already been reached, when a line must be drawn so that the defendants can be clear on the detail of the case which they have to answer.
(At [53] Edelman J had referred to observations by the plurality in Aon Risk Services Australia v Australian National University [2009] HCA 27; (2009) 239 CLR 175 and directed to explaining why corporations are not immune from the effects of delay and disruption to the orderly progress of litigation.)
Granting a permanent stay of both those recently commenced further 2015 civil actions, Chaney J concluded at [29]:
In the absence of any satisfactory explanation, the commencement of two additional actions to litigate issues which are already raised in, or where a complete remedy is available in, an existing extant action, is vexatious and an abuse of process. In this case, the explanation for the separate actions is to circumvent procedural requirements affecting the introduction or reintroduction of the claims in CIV 1808 [of 2013]. The plaintiff's unilateral assumption that those procedural requirements will ultimately be resolved in its favour is not a justification for that circumvention. (my emphasis)
At [30] Chaney J foreshadowed a future application by Mineralogy for leave to amend Mineralogy's pleading in that founding litigation of CIV 1808 of 2013 to reinclude the original MRP money claims claims. That, indeed, followed later in the piece by Mineralogy in a minute of a proposed amended pleading.
But stepping back somewhat in the chronology for the moment, at between August 2014 and May 2015, the parties exchanged correspondence and had made rival submissions at various interlocutory hearings - over whether there were issues in CIV 1808 of 2013 which were appropriate for a preliminary determination by the court. Mineralogy had by then made four applications seeking the determination of a preliminary issue during this period. One of those it abandoned. The other three were all dismissed by Chaney J on 28 May 2015.
Returning to late December 2015, now in the original action CIV 1808 of 2013, Mineralogy now filed its interlocutory application (to be heard urgently) by Tottle J (given Chaney J's commitments at that time to another trial) and seeking mandatory injunctive payment relief on an interlocutory basis from the defendants. Orders were now being sought by Mineralogy against the defendants for an immediate payment of $US48 million that was alleged then by Mineralogy to be due to it in respect of unpaid RCB funds. A useful conspectus of the procedural background to the litigation to that point is found in Tottle J's reasons: see Mineralogy [No 8] [19] - [36].
Tottle J urgently heard but ultimately refused Mineralogy's interlocutory application for mandatory part payment orders, essentially concluding that although there was then a seriously arguable case for payment to Mineralogy on its RCB claim, that the balance of convenience was then against the grant of pre‑trial mandatory injunctive orders requiring payments as then were sought by Mineralogy: see Mineralogy [No 4] [102] - [108].
Tottle J's refusal decision, however, was then appealed by Mineralogy to the Court of Appeal of Western Australia. The appeal was urgently heard on 24 March 2016, with reasons delivered on 27 June 2016 and allowing Mineralogy's appeal. See Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105 (McLure P, Newnes JA, Corboy J). Hence, Mineralogy's application seeking the interlocutory mandatory relief compelling the payment of RCB funds then said to be due under the MRSLAs was remitted back for a full rehearing to the case manager (Chaney J).
At [1] McLure P agreed with the reasons of Newnes JA. Nevertheless, in her own brief reasons, the learned former President observed upon the lack of any assessment as to the strength of Mineralogy's as established arguable prima facie case seeking injunctive relief by way of a pre-trial ordered payment of RCB money [23]:
I agree with Newnes JA that the primary judge erred in failing to make an assessment of the strength of the CITIC parties' primary defence that RCB is uncertain, void and severable. Courts go to very considerable lengths to uphold agreements and the terms thereof. Ambiguity does not mean (legal) uncertainty. (my emphasis)
At [26] the learned former President concluded:
However, Mineralogy's insistence on an urgent hearing means this court cannot itself determine the application without infringing the respondent's right to procedural fairness. The application should be remitted to Chaney J who is responsible for the management of the action.
Delivering the primary reasons in Mineralogy's appeal at [74], Newnes JA had observed that the primary judge had assessed Mineralogy's application essentially at its highest 'on the basis of an order compelling the performance of a contractual obligation - that is, on the basis of its claims for payment of Royalty Component B ...'.
Upholding ground 1 of that appeal, Newnes JA at [100] observed on the difficult position in which the primary judge had been placed. He said there was still no statement of claim that appeared to state Mineralogy's final case, noting (in 2016) and that the 'action over its long and convoluted history had generated voluminous documentation'.
Nevertheless, Newnes JA concluded at [101] as to a problem by a lack of a strength assessment of the (established) prima facie case of Mineralogy for mandatory injunction relief in the character of pre-trial royalty payment orders:
However, notwithstanding those difficulties, there is, I think force in Mineralogy's submission that in determining the application it remained incumbent upon his Honour to make an assessment of the strength of Mineralogy's case and that his Honour simply had to do the best he could in the circumstances in which he found himself. (my emphasis)
At [102] Newnes JA added:
What is required is an assessment or evaluation of the case for the purpose of deciding whether the plaintiff has made out a prima facie case of sufficient strength to justify the grant of an interlocutory injunction and to enable the strength of the case to be taken into account in an assessment of the balance of convenience and justice ... (my emphasis)
Applying observations from Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 23 [59], Newnes JA further observed that it was 'not enough simply to conclude that a plaintiff (ie, Mineralogy) has a "prima facie" case'.
Like McLure P, Newnes JA also said that the appropriate course was to remit Mineralogy's interlocutory payment injunction application to be reheard [115]. Corboy J agreed with both Newnes JA and McLure P [117].
Mineralogy's then 3FASOC (which had not included the MRP money claims) was still on foot at the time of respective decisions by Tottle J and by that 2016 Court of Appeal.
But on 1 April 2016, Mineralogy had filed a minute of proposed Fourth Further Amended Statement of Claim in CIV 1808 of 2013 ('4FASOC') by which it again (post Chaney J's abuse of process decision on the two 2015 actions) now sought to re-agitate the same MRP money claims. But Mineralogy needed the leave of the court to make those amendments, given orders to that effect as were earlier made by Edelman J.
Due to an unforeseen conflict issue that emerged for Chaney J (see his Honour's reasons Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 12] [2016] WASC 335) and his subsequent voluntary recusal, CIV 1880 of 2013, duly arrived on my docket for case management. I then, in accord with the directions of the 2016 Court of Appeal issued in allowing Mineralogy's successful appeal, reheard the mandatory interlocutory injunction arguments seeking to compel the RCB part payments on 27 and 28 October 2016. I delivered my reasons on 13 December 2016: see Mineralogy [No 13]. In light of the 2016 Court of Appeal's reasons as expressed whilst upholding that appeal, an evaluation of the strength of Mineralogy's prima facie case was a central focus of that interlocutory rehearing of Mineralogy's application to compel by injunction pre-trial payment of RCB money by the defendants.
Before me, at the full remitted hearing no plaintiff or defendant party ever submitted either on paper or verbally by respective senior counsel that this court, as a court of equity, lacked the power to grant Mineralogy's as claimed interlocutory royalty payment relief. Of course, were that so, there would be no point at all in the 2016 Court of Appeal ordering a rehearing and a re-evaluating the strength of Mineralogy's prima facie case upon its injunction application. Absent the power or jurisdiction to grant such relief, such an exercise would be pointless.
As events transpired, the interlocutory rehearing exercise as remitted and conducted by me was, indeed, completely pointless: see Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 (delivered 20 April 2017). By those reasons, a differently constituted 2017 Court of Appeal now determined, in effect, that there was a lack of jurisdiction to grant the interlocutory payment relief that Mineralogy was seeking ‑ an obstacle issue that looks only to have become live before the 2017 Court of Appeal following my determination favouring Mineralogy in Mineralogy [No 13].
I must now briefly divert to address some inter parties communications that arose around the publication of my reasons in Mineralogy [No 13]. On 1 November 2016, Mineralogy had written to lawyers Allens (who then acted and continues to act for all CITIC defendants in CIV 1808 of 2013) stating:
Mineralogy does not intend to press its claims for breaches of clause 6.3 of the MRSLA.
(See POD-21 to Mr O'Donahoo's first affidavit.)
Mineralogy then made a similar statement in a letter to Allens dated 2 November 2016 (see POD-22 to Mr O'Donahoo's first affidavit).
Between 7 November 2016 and December 2016, Mineralogy and Allens exchanged more correspondence concerning various matters Mineralogy then proposed to apply to have determined as preliminary points within CIV 1808 of 2013.
On 18 November 2016, Mineralogy's lawyer of record sent a letter by email to my Associate and, of course, copied to the defendants' lawyers. It stated:
[I]n the public interest to assist the court in setting an early trial date, [t]he Plaintiff intends to reduce its claims by not pressing its claim for termination, repudiation, breaches of clause 6.3 of the MRSLA'.
(See POD-30 of Mr O'Donahoo's first affidavit.)
On 13 December 2016 (the day my reasons being Mineralogy [No 13] were published) Mineralogy sent a letter to Allens attaching (leave to amend the pleading being required) a copy of a new proposed Fifth Further Amended Statement of Claim ('5FASOC') and stating:
As we previously foreshadowed, the amended pleading no longer presses a claim for ... breach of clause 6.3 of the MRSLAs.
(See POD-34 of Mr O'Donahoo's first affidavit.)

At 14 December 2016, Mineralogy served Allens with an affidavit of Mr Palmer affirmed that day. It had attached a draft chamber summons seeking leave to amend Mineralogy's pleading in terms of that further iteration of Mineralogy's as proposed 5FASOC.
On 21 December 2016, Allens replied to Mineralogy, seeking confirmation that:
... as a condition of obtaining any leave to amend its pleading which it might obtain, Mineralogy will agree to an order that it will not re-agitate in this or any other proceeding those claims made in its Fourth Further Amended Statement of Claim dated 1 April 2016 which are proposed to be deleted in its proposed 5FASOC.
(See POD-38 of Mr O'Donahoo's first affidavit.)
It is clear that the claims that Mineralogy had proposed to delete under its proposed 5FASOC had included the MRP money claims.
On 21 December 2016, Mr Palmer filed an affidavit in CIV 1808 of 2013, under which he now addressed why he now considered it would be more appropriate for Mineralogy to set the action (CIV 1808 of 2013) down for an early trial, rather than seek to have (RCB related) matters as raised by Mineralogy by the earlier correspondence only determined as preliminary points. By that affidavit, Mr Palmer had said (par 28) without qualification:
Mineralogy has removed and abandoned claims for the Minimum Royalty under clause 6.3 of the MRSLA.
(See POD-39 of Mr O'Donahoo's first affidavit.)
On 28 December 2016, Mineralogy responded to Allens' letter of 21 December 2016, but refusing to consent to the terms of the orders as were being proposed by Sino Iron, Korean Steel and CITIC, stating:
... there is no utility in speculating about hypothetical claims or actions that may or may not arise in the future.
(See POD-40 of Mr O'Donahoo's first affidavit.)
On 9 January 2017, Allens wrote again to Mineralogy's lawyer, now informing him that Sino Iron, Korean Steel and CITIC Ltd did not oppose Mineralogy being given leave to discontinue certain claims in CIV 1808 of 2013 (including the MRP money claims). But that was also expressed as being on the condition that Mineralogy pay to Sino Iron, Korean Steel and CITIC Ltd's costs thrown away upon an indemnity basis, and also upon a further condition that Mineralogy promise not to re-agitate those claims in CIV 1808 of 2013, or in any other proceeding.
On 12 January 2017, Mineralogy sent a letter to Allens, now 'undertaking' that, amongst other things, Mineralogy would
... not raise claims which Mineralogy has withdrawn by the proposed [5FASOC] against [Sino Iron, Korean Steel and CITIC Ltd] in CIV 1808 of 2013 or any other proceeding.
(See POD-44 of Mr O'Donahoo's first affidavit.)
Also on 12 January 2017, Mineralogy sent a further letter to Allens. It referred to the 'undertaking' and now sought a confirmation that Sino Iron, Korean Steel and CITIC Ltd would not proceed with seeking the as proposed finality orders as to Mineralogy not re‑agitating the MRP money claims.
On 16 January 2017, Mineralogy filed written submissions in the court. They referred to its 'undertaking'. Also on 16 January 2017, Mineralogy filed a further affidavit sworn by Mr Palmer in which he also referred to Mineralogy's 'undertaking'.
On 17 January 2017, the defendants Sino Iron, Korean Steel and CITIC Ltd filed a written outline of submissions. They now stated at par 48:
Superficially, it may be said that [Sino Iron, Korean Steel and CITIC Ltd] should not have any objection to the discontinuance of claim. And they do not. However, given Mineralogy's history of resurrecting abandoned claims, [Sino Iron, Korean Steel and CITIC Ltd] submit that it is important to confirm that the claims are truly being abandoned and that Mineralogy is not reserving to itself the opportunity to resurrect the claims in the future if it considers that it suits it to do so at some future point in time. (my emphasis)
(See POD-49 of Mr O'Donahoo's first affidavit.)
To the same end, on 19 January 2017, Allens wrote to Mineralogy's lawyer of record requesting Mineralogy
consent to an order ... to the effect that any grant of leave to amend [the statement of claim] will be conditional upon Mineralogy undertaking to the Court and to [Sino Iron, Korean Steel and CITIC Ltd] not to raise the claims which it has withdrawn by [the proposed 5FASOC] against [Sino Iron, Korean Steel and CITIC Ltd] in CIV 1808 of 2013 or any other proceeding.
(See POD-50 of Mr O'Donahoo's first affidavit.)
On 20 January 2017, a directions hearing was convened before me to determine, amongst other things:
(a)Mineralogy's pending application for leave to amend its statement of claim to withdraw specific causes of action, including to withdraw the MRP money claims; and
(b)Mineralogy's request for expedited trial dates, to which Sino Iron, Korean Steel and CITIC Ltd strongly objected.
At that directions hearing, I had observed during dialogue with Mr Scerri QC for the CITIC defendants, in effect, that if the discontinued claims were ever re‑agitated by Mineralogy under a fresh action in the future, that the first thing the CITIC defendants would surely do would be to attack them on the basis that they were an abuse of process (CIV 1808 of 2013, ts 1,540). Mr Scerri QC conceded that to be the case. That led me to ask whether the defendants' then expressed concerns over such abandoned causes being later revived was an exercise in 'dancing at shadows' (CIV 1808 of 2013, ts 1,540).
On 25 January 2017, Mineralogy duly filed and served a proposed 5FASOC in CIV 1808 of 2013. That 5FASOC as submitted pleading did not articulate any relief concerning the MRP money claims. Nor did it contain any reference to cl 6.3 of the MRSLAs.
On 27 January 2017, I granted Mineralogy leave to amend its statement of claim, but only by way of deletion. I acceded to Mineralogy's request for an expedited trial of CIV 1808 of 2013 fixed to be held in June 2017. That was over objections by the CITIC defendants. I acceded then to that request by Mineralogy for expedited trial dates, in part, because I considered the earlier dates were achievable due to Mineralogy's deletion amendments, removing of a number of Mineralogy's former claims from its former statements of claim, including the MRP money claims.
A trial of CIV 1808 of 2013 was duly conducted by me across 14 - 16, 19 - 23 and 28 - 29 June 2017.
On 24 November 2017, I published my reasons for decision after trial (Mineralogy [No 16]), essentially upholding, now on a final post trial basis, Mineralogy's RCB money claims under the MRSLAs.

Proceedings CIV 3011 of 2017, CIV 3166 of 2017 and CIV 3129 of 2018

That very day (24 November 2017) I delivered those trial reasons, Mineralogy now filed a new writ out of this court indorsed with a statement of claim ostensibly commencing a fresh action and pursuing the former MRP money claim under a new proceeding, CIV 3011 of 2017.
Five days later, on 28 November 2017, Mineralogy, as already mentioned, filed a unilateral notice of discontinuance of CIV 3011 of 2017.
On 21 December 2017, Mineralogy filed yet another writ indorsed in this court with a statement of claim. This was proceeding CIV 3166 of 2017 which, as seen, re‑agitated the MRP money claim of Mineralogy.
On 22 January 2018 Allens (again acting for the CITIC defendants) wrote to Mineralogy, inviting it to discontinue CIV 3166 of 2017, failing which it was stated that Sino Iron, Korean Steel and CITIC Ltd would apply to strike out, permanently stay or dismiss the new 2017 proceeding. Allens also invited a conferral in relation to the defendants' as proposed application: see POD-71 of Mr O'Donahoo's first affidavit.
On 30 January 2018, Mineralogy responded, asserting Mineralogy was fully entitled to pursue the MRP money claim under CIV 3166 of 2017 and further advising Mineralogy intended to amend its pleadings to join Mr Palmer as co‑plaintiff to the action and also to add to the action further claims by Mineralogy and by Mr Palmer, said to arise under the FCD.
On 31 January 2018, Sino Iron, Korean Steel and CITIC Ltd filed an application to strike out, stay or dismiss CIV 3166 of 2017, as an abuse of process of the court.
On 21 February 2018, Mineralogy applied by its chamber summons to join Mr Palmer as the second plaintiff in CIV 3166 of 2017 and to join Sino Iron Holdings Pty Ltd as the fourth defendant in CIV 3166 of 2017 and, as well, to amend its pleadings to that end.
On 26 February 2018, I issued some programming directions in CIV 3166 of 2017 towards a determination hearing of Sino Iron, Korean Steel and CITIC Ltd's abuse of process and strike out application, and for Mineralogy's joinder applications.
During March and April 2018, the parties in CIV 3166 of 2017 advanced various steps under those programming directions towards the hearing.
But on 14 April 2018, Mineralogy wrote to Allens giving notice that it intended to discontinue CIV 3166 of 2017: see POD-84 of Mr O'Donahoo's first affidavit.
On 8 May 2018, Mineralogy filed and served its notice of discontinuance of CIV 3166 of 2017 (leave to discontinue not being needed).
However, seven months on, at 11 December 2018, Mineralogy duly initiated the present civil proceeding in this court (CIV 3129 of 2018) and advancing the same MRP money claim again.

Proceedings WAD 471 of 2018

On 19 October 2018, Sino Iron, Korean Steel and CITIC Ltd commenced proceeding WAD 471 of 2018 out of the Federal Court of Australia (Perth registry). The application was against Mr Palmer and Mineralogy, alleging breaches of contract, seeking estoppel relief, and contending for unconscionable conduct, arising under the Australian Consumer Law. Claims were also advanced against Mr Palmer as an alleged accessory to the unconscionable conduct of Mineralogy, in relation to the failure and refusal of Mineralogy to take certain steps which Sino Iron, Korean Steel and CITIC Ltd allege are necessary for them to obtain the full benefit of the MRSLAs.
On 28 February 2019, Mineralogy and Mr Palmer filed a defence in that Federal Court proceeding by which they alleged that the FCD has been terminated and that a 'Joint Development Agreement - George Palmer Deposit' dated 12 March 2006 ('JDA') was not suspended and was in force.
On or about 16 November 2018, Mineralogy applied to have proceeding WAD 471 of 2018 transferred to the Supreme Court of Western Australia under s 5(4) of the Jurisdiction of Courts (Cross‑vesting) Act 1987 (Cth).
On or about 19 December 2018, Mineralogy filed in the Federal Court and served an affidavit of its lawyer, Mr Kane Christopher Jones sworn on 18 December 2018 in support of that application. Under that affidavit, Mr Jones deposed that the operation of the JDA is suspended.
On 17 May 2019, WAD 471 of 2018 was transferred to the Supreme Court of Western Australia upon Mineralogy's application, under the orders of Banks-Smith J (see Sino Iron Pty Ltd v Mineralogy Pty Ltd [2019] FCA 675) and where it has been allocated an SCWA proceeding number CIV 1915 of 2019 and is case managed by me.

Mineralogy and Mr Palmer's evidence in opposition to the present application

It might now be better appreciated that I am dealing with unique procedural circumstances. Mineralogy, by the present action, seeks approximately US$200M liquidated MRP money claim as advanced pursuant to cl 6.3(b) of each MRSLA (said to be guaranteed by CITIC Ltd under the terms of the FCD). But Mineralogy's claim has been pleaded, but then never ultimately determined finally in at least four earlier civil actions conducted in this court. In each prior action there followed either an excision by amendment by Mineralogy of the MRP money claim by amendment, or a discontinuance of the whole action.
First, the MRP claim was run for a time by Mineralogy within CIV 1808 of 2013 before ultimately being deleted and removed by amendment well before the trial. Second, in CIV 2303 of 2015. But that action was permanently stayed by Chaney J as an abuse of process. Third was CIV 3011 of 2017 before that action was unilaterally discontinued by Mineralogy four days later, on 28 November 2017. Fourth was CIV 3166 of 2017, before that action was unilaterally discontinued by Mineralogy on 8 May 2018.
So the present action is the fifth civil action by Mineralogy in this court pursuing the same MRP money claim.
Given that underlying context of removal, or of discontinued claims, it is important to see what is the explanation provided for such fluctuating civil pursuits, then non-pursuits, then a re-pursuit of the MRP money claim by Mineralogy, as is offered.

Mr Palmer's 8 May 2019 affidavit

For the present application I need to refer to Clive Frederick Palmer's affidavit affirmed 8 May 2019 and filed 23 May 2019.
Of course, as the CITIC defendants point out, what Mr Palmer now relates (as I will discuss) be seen and weighed holistically, against what Mr Palmer has also said earlier, under some of his prior affidavits.
Of particular importance to this exercise is the period between December 2016 and January 2017. That was when Mineralogy was seeking trial dates for an urgent trial of its RCB claim in CIV 1808 of 2013. At that time a trial was set down for a two week hearing in June 2017. My trial determination was Mineralogy [No 16].
Out of Mr Palmer's 8 May 2019 affidavit, I need to extract what he has said there, both on his own behalf as well as on behalf of Mineralogy, commencing at par 4 and continuing. Since this is a lengthy extract, required for proper context, I have at places highlighted in bold certain statements made by Mr Palmer, particularly concerning Mineralogy's 'undertaking' proffered as regards not pursuing its excised MRP claims in CIV 1808 of 2013.
Mr Palmer says:
4.On 7 December 2015 Mineralogy sought, amongst other things, a mandatory interlocutory injunction compelling the CITIC Parties to pay to Mineralogy the sum of US$48 million in respect of unpaid royalties.
5.Tottle J delivered judgment on the application on the same day, refusing the application (Mineralogy Pty Ltd v Sino Iron Pty Ltd [No. 8] [2015] WASC 473).
6.Mineralogy successfully appealed from the decision of Tottle J. The Court of Appeal delivered judgment on 27 June 2016, allowed the appeal, set aside the decision of Tottle J and remitted Mineralogy's application for a mandatory injunction to the Supreme Court of Western Australia (Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105).
7.The remitted application for a mandatory injunction was heard by Kenneth Martin J on 27 and 28 October 2016. At that time, Mineralogy sought, amongst other things, a mandatory interlocutory injunction compelling the CITIC Parties to pay to Mineralogy approximately US$80 million.
8.The increase in the amount sought, from US$48 million to US$80 million, reflected the unpaid royalties arising from the CITIC Parties' mining operations for the period from the fourth quarter of 2015 to the second quarter of 2016 inclusive.
9.…
10His Honour Kenneth Martin J delivered judgment in respect of the remitted application for a mandatory injunction on 13 December 2016 (Mineralogy Pty Ltd v Sino Iron Pty Ltd [No. 13] [2016] WASC 403 (Injunction Judgment)).
CIV 1808 / 2013 - Mineralogy's application for leave to amend and secure early trial date
Steps taken prior to receipt of Injunction Judgment
11.Between late October 2016 and 13 December 2016, following the hearing of the mandatory injunction application and prior to the delivery of the Injunction Judgment, I considered a number of options to expedite determination of the question whether Royalty Component B was payable.
12.I considered that a swift resolution of this question would not only save the parties costs but would be in the public interest. I considered the expedient resolution would free up court time and be an efficient use of court resources and allow court time to be freed up for others.
Narrowing the issues for trial
13.I first gave consideration to narrowing the issues for trial, as previous attempts to identify separate questions for early determination had not been successful.
14.In that regard, on 11 May 2015 Chaney J heard chamber summonses filed by Mineralogy on 9 September 2014, 20 February 2015, 30 March 2015 and 8 May 2015. [...]
15.In the application before Chaney J, in support of the application to have separate questions identified for early determination, Senior Counsel for Mineralogy had specifically identified the claim under clause 6.3 of the MRSLAs as being one in respect of which 'the factual fight looks like a very long building case and the rest is not' see 11 May 2015 transcript [...]
16.Despite that, Chaney J had said (see 11 May 2015 transcript [...]:
... it all just looks like a highly risky endeavour, from the court's point of view, to try to - to try to hive issues off. So I'm - that's what you're confronting I'm afraid.
17.Having determined to pursue a strategy of narrowing the issues for trial, I caused Mineralogy to take the following steps:
(a)On 28 October 2016, Mineralogy first proposed that the parties confer with a view to identifying the main issues to proceed with to trial: [...];
(b)On 31 October 2016, Mineralogy confirmed that it did not intend to press its claims for repudiation or termination of the MRSLAs. [...]; and
(c)On 1 November 2016, Mineralogy confirmed that it did not intend to press its claims for breaches of clause 6.3 of the MRSLAs: [...].
18.In respect of 17(b) above, during the hearing of the mandatory injunction application, his Honour had also indicated to Senior Counsel for Mineralogy that he had a 'conceptual problem' with ordering a mandatory injunction in circumstances where Mineralogy pleaded, at that time, termination of the MRSLAs (see for example, 27 October 2016 transcript page 1313, 'CFP-01 ', page 80). That indication was also a factor in my decision to cause Mineralogy to confirm on 31 October 2016 that it did not intend to press a claim for repudiation and termination.
Separate questions
19.Despite Mineralogy being unsuccessful in its previous applications for separate questions (see paragraphs 14 to 16 above), I recall that a number of comments made by Kenneth Martin J during the hearing of the mandatory injunction application caused me to believe that it may be worthwhile for Mineralogy to test further the possibility of identifying questions for separate determination.
20.I recall being briefed on the mandatory injunction hearing and reviewing the transcript of the day's proceedings when it became available and I have reviewed the transcripts of the mandatory injunction hearing again for the purpose of swearing this affidavit.
21.While I cannot recall precisely which of his Honour's comments caused me to form the view referred to above (at paragraph 19) I can recall generally that they were comments of the following type:
(a)The exchange between Kenneth Martin J and Senior Counsel for Mineralogy on 27 October, transcript pages 1263 - 1264: 'CFP-01', pages 30-31; and
(b)The exchange between Kenneth Martin J and Senior Counsel for the CITIC Parties on 27 October 2016, transcript pages 1377 - 1380: 'CFP-01', pages 144-147.
22.The correspondence Mineralogy exchanged with Allens in November 2016 concerning:
(a)the hearing of a possible preliminary point [...]; and
(b)the filing of a separate construction summons [...];
was all sent in furtherance of the possibility, which I wished to pursue, of identifying questions for separate determination with a view to shortening the period of time required for hearing.
Decision to await Injunction Judgment
23.While Mineralogy and the CITIC Parties did confer in November and early December 2016, I ultimately determined that any decision by Mineralogy to amend its statement of claim and the scope of any preliminary point should await the judgment of Kenneth Martin J in relation to the mandatory injunction. See:
(a)Mineralogy letter to Allens, dated 16 November 2016 [...]; and
(b)Mineralogy letter to Allens, dated 2 December 2016 [...].
24.I considered that Mineralogy would benefit from knowing the outcome of the Martin J judgment.
Steps taken consequent upon the Injunction Judgment
25.I recall being briefed on the Injunction Judgment and reviewing it myself as soon as it was published on 13 December 2016 and I have reviewed the judgment again for the purpose of swearing this affidavit.
26.Following the delivery of the Injunction Judgment, I caused Mineralogy to serve a proposed amended pleading. The proposed amended pleading no longer pressed claims for repudiation and termination of the MRSLAs, breach of clause 6.3 of the MRSLAs or breach of the Standard of Work Provisions of the MRSLAs: [...].
27.When it was first served, the proposed amended pleading also included a claim for conversion of property, which was ultimately not pressed by Mineralogy in the final form of the amended pleading.
28.I do not address the conversion claim further in this affidavit as it appears to me that it is the removal of the claims referred to in paragraph 26 above, particularly the claim for breach of clause 6.3 of the MRSLAs, that is said to be relevant to the CITIC Parties' current application.
29.I swore an affidavit in the proceedings on 14 December 2016 which addressed Mineralogy's proposed amended pleading: Affidavit of Clive Frederick Palmer, dated 14 December 2016 [...].
30.I considered at the time that the amendments fell into two categories:
(a)     the removal of the claim for termination; and
(b)the removal of the claims for breach of clause 6.3 of the MRSLAs and breach of the Standard of Work Provisions of the MRSLAs.
Removal of termination claim
31.In addition to being in the public interest generally to narrow the issues in dispute, my decision to remove the claim for termination was directed to demonstrating that Mineralogy was ready, willing and able to perform its obligations under the MRSLAs.
32.I considered that this was critical to Mineralogy as I had formed the view, after reading the Injunction Judgment, that it was a necessary step to Mineralogy receiving any payment before the final hearing for unpaid royalties that had accrued after October 2014, when Mineralogy had otherwise pleaded a case that the MRSLAs had been terminated.
33Having read the Injunction Judgment again for the purpose of swearing this affidavit, I recall it was statements of the type referred to in paragraphs [204] and [221] - [233] of the Injunction Judgment that caused me to form that view.
34.I recall being encouraged at the time by statements made by his Honour in the judgment which suggested that the conceptual problem his Honour had identified could be readily addressed and that Mineralogy could show itself to be fully ready, willing and able to perform its own obligations under the MRSLAs by removing any allegation that the MRSLAs had been terminated.
35.Having read the Injunction Judgment again for the purpose of swearing this affidavit, I recall it was statements of the type referred to in paragraphs [223] and [226] of the Injunction Judgment that caused me to form that view.
36.At paragraph [8] of my 14 December 2016 Affidavit I gave the following undertaking on behalf of Mineralogy:
I confirm as a director of Mineralogy and as a person duly authorised to make the affidavit on Mineralogy's behalf that it:
a)unequivocally withdraws any claims that the MRSLAs have been terminated; and
b)is ready, willing and able to perform its future and ongoing obligations under the MRSLAs.
37.Aside from the obvious financial benefits in securing the ongoing payment of royalties which to that time had been withheld, it was important for Mineralogy to receive payment of all of the unpaid royalties that had accrued, for the reasons set out in:
(a)paragraphs 18 - 32 of my affidavit of 14 December 2016: Affidavit of Clive Frederick Palmer, dated 14 December 2016 [...]; and
(b)paragraphs 40 - 55 of my affidavit of 21 December 2016: Affidavit of Clive Frederick Palmer, dated 21 December 2016 [...].
38.The unpaid royalties meant that Mineralogy's cash flow was severely impeded and was threatening the continuing employment of Mineralogy's entire staff and commercial operations.
Removal of clause 6.3 claim
39.I caused the claims for breach of clause 6.3 of the MRSLAs and for breach of the Standard of Work Provisions of the MRSLAs to be removed for the purpose of removing factually intensive claims and obtaining an expedited final hearing date.
40.I recall giving consideration to whether Mineralogy should apply to have the construction of clause 8 of the MRSLAs determined as a separate question in lieu of, or in addition to, removing the claims for breach of clause 6.3 of the MRLSAs and for breach of the Standard of Work Provisions of the MRSLAs.
41.In that regard, I recall I was encouraged, having read the Injunction Judgment, by statements of the type referred in paragraph [234] of the Injunction Judgment.
42.However, I ultimately considered that the better course was to remove the claims from the proceedings so that an expedited final hearing could be listed which finally resolved the pleaded issues in dispute between the parties.
43.I came to that conclusion at the time for the reasons set out in:
(a)paragraphs 9 - 13 and 33 - 40 of my affidavit of 14 December 2016: Affidavit of Clive Frederick Palmer, dated 14 December 2016 [...]; and
(b)paragraphs 16 - 19 and 26 - 31 of my affidavit of 21 December 2016: Affidavit of Clive Frederick Palmer, dated 21 December 2016 [...].
44.It was in the public interest to efficiently deal with dispute in respect of the royalties as soon as possible so as not to use a large amount of court time.
14 December 2016 directions hearing
45.On 14 December 2016 there was a directions hearing before Kenneth Martin J in relation to the making of orders in accordance with the Injunction Judgment.
46.Following the directions hearing, among other orders, the Court:
(a)directed Mineralogy to file and serve its Fifth Further Amended Statement of Claim by 4pm on 21 December 2016; and
(b)listed the hearing of Mineralogy's application for leave to amend its statement of claim on 20 January 2017.
Fifth Further Amended Statement of Claim
47.On 21 December 2016, Mineralogy served the Fifth Further Amended Statement of Claim: Mineralogy letter to Allens, dated 21 December 2016 [...].
48.The Fifth Further Amended Statement of Claim served on 21 December 2016 did not contain claims for breach of clause 6.3 of the MRSLAs or for breach of the Standard of Work Provisions of the MRSLAs.
49.On the same date, Mineralogy served a further affidavit, sworn by me, on 21 December 2016, which addressed the Fifth Further Amended Statement of Claim: Affidavit of Clive Frederick Palmer, dated 21 December 2016 [...].
50In that affidavit, at paragraph [15], I restated the undertaking I had given on Mineralogy's behalf in my affidavit of 14 December 2016.
CITIC Parties proposed conditions upon the grant of leave to amend
51.On 21 December 2016, Allens wrote to Mineralogy seeking agreement to orders in the following terms:
... orders to the effect that any payments ordered by the Court in respect of the post-October 2014 period are subject to Mineralogy being - and continuing to be - ready willing and able to perform all of its obligations under the MRSLAs and the other Project Agreements, and maintaining a position both within and outside the proceedings that is consistent with that readiness, willingness and ability.
... as a condition of obtaining any leave to amend its pleading which it might obtain, Mineralogy will agree to an order that it will not re-agitate in this or any other proceeding those claims made in its Fourth Amended Statement of Claim dated 1 April 2016 which are proposed to be deleted in its Proposed 5FASOC.
Allens letter to Mineralogy, dated 21 December 2016 [...].
52.On 28 December 2016 I caused Mineralogy to respond to the Allens letter of 21 December 2016 confirming, among other matters, the following:
... Mineralogy has unequivocally withdrawn any claims that the MRSLAs have been terminated or repudiated.
…
... Other than as set out above Mineralogy reserves all its rights. Mineralogy has narrowed its claims and is proceeding to trial on the matters that are relevant to the claims Mineralogy wishes to make. The claims are what they are and there is no utility in speculating about hypothetical claims or actions that may or may not arise in the future.
…
Mineralogy does not consent to the orders proposed by your clients. Please confirm your client will consent to the orders set out in our Chambers Summons ...
Mineralogy letter to Allens, dated 28 December 2016 [...].
53.On 9 January 2017, Allens wrote to Mineralogy stating:
notwithstanding Mineralogy's letter dated 28 December 2016 ... we remain of the view that, if any orders of the type sought by Mineralogy are to be made (which orders are generally opposed by our clients), there will be a need for others of the kind set out in our letter.
Allens letter to Mineralogy, dated 21 December 2016 [...].
54.On behalf of Mineralogy, I did not agree to the conditions upon the grant of leave proposed by the CITIC Parties.
Proffered undertaking not to raise claims withdrawn by the proposed Fifth Further Amended Statement of Claim
55.On 11 January 2017 Allens wrote to Mineralogy and indicated it would not be able to put on all its evidence for the hearing on 20 January 2017 and sought Mineralogy's consent to a vacation of the leave hearing on 20 January 2017: Allens letter to Mineralogy, dated 11 January 2017 at O'Donahoo Affidavit, pages 2082 - 2085.
56.On 12 January 2017 Mineralogy responded to the Allens letter of 11 January 2017, confirming it did not consent to the orders vacating the leave hearing on 20 January 2017. Mineralogy stated in that letter, 'the reasons inter alia for that are as follows':
…
Further payments and ready, willing and able
You have raised 5 additional matters the CITIC Parties allege are relevant to Mineralogy demonstrating it is ready, willing and able to perform its obligations under the MRSLAs and Project Agreements:
1.Mineralogy not pursuing in the future claims withdrawn by the proposed Fifth Further Amended Statement of Claim;
…
By letter dated 28 December 2016, Mineralogy has responded concerning matters 2 to 4 above. Notwithstanding Mineralogy's position in its letter dated 28 December 2016 and without prejudice to such position, by this letter, Mineralogy gives the following undertakings:
1.Mineralogy will not raise claims which Mineralogy has withdrawn by the proposed Fifth Further Amended Statement of Claim against the Defendant in CIV 1808 of 2013 or any other proceeding;
…
Mineralogy letter to Allens, dated 12 January 2017 [...].
57.The undertaking was given because the failure to have an early hearing of the matter would have threatened Mineralogy's solvency and the employment of its staff. I concluded that the CITIC parties were not acting in good faith and seeking to delay matters in breach of their obligations and there was no other way that the matter could proceed to trial in the short term without giving the undertaking.
58By letter dated 13 January 2017, the CITIC Parties sought a listing date for their proposed adjournment application […].
59.On 16 January 2017, the parties received an email from the Associate to Kenneth Martin J indicating that the CITIC Parties' adjournment application had been considered in chambers and that the special appointment on 20 January 2017 should proceed. […]
The proffered undertaking was not accepted
60.On 12 January 2017 Allens confirmed that it would seek instructions in respect of the proffered undertaking: Allens letter to Mineralogy, dated 12 January 2017 [...].
61.On 19 January 2017 Allens responded to Mineralogy proposing additional conditions on the proffered undertaking, in the following terms:
Would you please let us know whether Mineralogy will:
a)Provide a similar Undertaking to the Court; and
b)Consent to an order in the terms previously requested in our letter dated 9 January 2017, to the effect that any grant of leave to amend its pleadings will be conditional upon Mineralogy undertaking to the Court and to the CITIC Parties not to raise the claims which it has withdrawn by the proposed Fifth Further Amended Statement of Claim against the Defendants in CIV 1808 of 2013 or any other proceeding and that Mineralogy will pay our clients' costs thrown away in respect of the discontinued claim, on an indemnity basis.
Allens letter to Mineralogy, dated 19 January 2017 [...].
62On behalf of Mineralogy, I did not consent to the conditions the CITIC Parties proposed on the proffered undertaking.
63.I was in Court at the leave hearing on 20 January 2017 and recall that Senior Counsel for the CITIC Parties had an exchange with Kenneth Martin J where Senior Counsel for the CITIC Parties referred to the proffered undertaking as being unsatisfactory.
64.I have reviewed the transcript of the leave hearing on 20 January 2017 for the purpose of swearing this affidavit.
65.To the best of my recollection, the exchange referred to above at paragraph [63] is that exchange between Kenneth Martin J and Senior Counsel for the CITIC Parties on 20 January 2017 that is extracted at O'Donahoo Affidavit, pages 2304 - 2305.
66.     The proffered undertaking, which the CITIC Parties did not accept, was not given to the Court.
The conditions proposed by the CITIC Parties were not imposed on the grant of leave
67.Kenneth Martin J delivered judgment in the leave application on 27 January 2017 (Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 14) [2017] WASC 17), granting leave to Mineralogy to amend the Fourth Further Amended Statement of Claim on an excisional basis. The conditions on the grant of leave sought by the CITIC Parties were not imposed.
CIV3011/2017
68.On 24 November 2017, Kenneth Martin J delivered judgment in CIV 1808/2013 (Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 16] [2017] WASC 340) (RCB Judgment).
69.On the same day, I caused Mineralogy to file and serve a Writ of Summons indorsed with a Statement of Claim in CIV 3011 / 2017 for the minimum royalty under clause 6.3 of the MRSLAs, seeking orders for the payment by Sino Iron and Korean Steel of $US97,802,035 each and by CITIC of $US195,604,070 [...].
70.The proceedings were commenced because the court had just determined the Mineralogy Royalty which would assist the matter in being determined efficiently.
71.Having caused Mineralogy to file CIV 3011/2017 I recall reading the RCB Judgment again, and paragraph [599] of the judgment in particular, in which Kenneth Martin J observed that there would not be a future basis for Sino Iron or Korean Steel not to fully co‑operate with Mineralogy by participating in a joint request under clause 33.2(b) of the MRSLAs to facilitate an expert determination of future quarterly Mineralogy royalty disputes.
72.I recall that I came to the view, having read the RCB Judgment, that:
(a)his Honour was saying that all future disputes concerning Royalty Component B (RCB) must be referred to an expert;
(b)his Honour's observations, and the comment in paragraph [599] in particular, included the minimum royalty claim, because the amount claimed was calculated using the Mineralogy royalty formula, of which RCB is part; and
(c)as a result, I needed to cause Mineralogy to discontinue CIV 3011 / 2017 and refer the minimum royalty dispute to expert determination under the MRSLAs.
73.On 28 November 2017, as a result of the view I had come to (referred to above at paragraph 72), I caused Mineralogy to write to the CITIC Parties to advise that Mineralogy discontinued CIV 3011 / 2017 and intended to pursue the minimum royalty under the expert determination regime: Mineralogy letter to Allens, dated 28 November 2017 [...].
CIV 3166/2017
7 4.After CIV 3011/2017 was discontinued I gave further consideration to the RCB Judgment, including for the purpose of causing Mineralogy to prepare to have the minimum royalty dispute referred to expert determination under the MRSLAs.
75.Having reflected on it further, I came to the view at the time that the minimum royalty claim was not one of the four categories of dispute identified in the MRSLAs as being referable to expert determination (referred to in paragraphs [493] and [494] of the RCB Judgment) and that a proceeding in respect of the minimum royalty claim would need to be commenced should Mineralogy wish to pursue payment of the minimum royalty.
76.On 21 December 2017, having come to the view referred to in paragraph 75 above, I caused Mineralogy to file and serve a Writ of Summons indorsed with a Statement of Claim in CIV 3166 / 2017 in the same terms as was filed in CIV 3011/2017 for the minimum royalty under clause 6.3 of the MRSLAs, seeking orders for the payment by Sino Iron and Korean Steel of $US97,802,035 each and by CITIC of $US195,604,070 [...].
77.On 30 January 2018, I caused Mineralogy to write to Allens to indicate that Mineralogy intended to seek leave to amend its statement of claim to:
(a)include a claim by Mineralogy under the Fortescue Coordination Deed (FCD) in relation to losses suffered as a result of the failure of Sino Iron and Korean Steel to perform their obligations under the MRSLAs by payment of the minimum royalty; and
(b)to join me personally to the proceedings, for the purpose of similarly making a claim under the FCD for losses I had suffered as a result of the failure of Sino Iron and Korean Steel to perform their obligations under the MRSLAs by payment of the minimum royalty.
Mineralogy letter to Allens, dated 30 January 2018 [...].
78.Between February 2018 and April 2018, the parties exchanged correspondence concerning the minimum royalty claim generally and my joinder to the proceedings. That correspondence is at O'Donahoo Affidavit, pages 2585 - 2667.
79.During this period, the CITIC Defendants:
(a)maintained that they would apply to strike out the minimum royalty claim as an abuse of process; and
(b)     that they opposed me being joined to the proceedings.
80.In light of the position adopted by the CITIC Defendants over this period, in particular in respect of the application for me to be joined to the proceedings, I came to the view that the most efficient course would be for Mineralogy to discontinue CIV 3166/2017 and commence fresh proceedings in which both Mineralogy and me personally would be plaintiffs to the proceedings.
81.I did not consider it was an efficient use of the court's resources to determine the joinder application where that question could be simply addressed by Mineralogy filing new proceedings.
82.I considered this to be the most appropriate course at the time in light of the fact CIV 3166 / 2017 had only been recently commenced and had not progressed beyond the parties' immediate dispute concerning my joinder to the proceedings.
83.I considered at the time that the CITIC Parties would not be prejudiced by the course I was proposing to adopt as it was clear to me, from the correspondence that was exchanged between February 2018 and April 2018, that the CITIC Parties' position would be the same in any new proceedings and their allegation that the minimum royalty claim was an abuse of process (which Mineralogy rejected), could be agitated and determined in the new proceeding.
84.Having come to the view set out in paragraph 80 - 83 above, on 14 April 2018, I caused Mineralogy to write to Allens to give notice that it intended to discontinue CIV 3166/2017 and to commence fresh proceedings with both Mineralogy and me personally as plaintiffs: Mineralogy letter to Allens, dated 14 April 2018 [...].
Costs of CIV 3166/2017
85.I accept that, by reason of its discontinuance of the proceedings, Mineralogy must pay the CITIC Defendants' costs of and incidental to the proceedings to be taxed.
86.In those circumstances, I undertake on behalf of Mineralogy that Mineralogy will pay the CITIC Defendants' costs of and incidental to CIV 3166/2017 to be taxed.
87.I do not accept that Mineralogy should cover those costs on an indemnity basis.
CIV 3129/2018
88.On 11 December 2018 I caused a Writ of Summons indorsed with a Statement of Claim to be filed and served with Mineralogy and me personally as plaintiffs to the proceedings.
89.In addition to the financial prejudice Mineralogy will suffer if the proceedings cannot be proceeded with, Mineralogy will suffer from not having sufficient funds to proceed with proposed joint ventures with its related companies including QNI Resources and the reopening of its nickel refinery in Townsville. Such a result would mean that over 800 jobs may not be available. (my emphasis)

The costs issues for resolution in the two actions

Following the exchange of the parties' respective written submissions over costs, it emerges that there is no real debate in either proceeding that the defendants are entitled to receive an award of their taxed costs. It is also clear that neither action advanced as far as the point of a trial. CIV 3166 of 2017 was unilaterally discontinued by the plaintiff. The ensuing action CIV 3129 of 2018, became the subject of a permanent stay, on the basis of an ascertained abuse of process by reason of the bringing of that action. Both actions, in effect, had pursued the same MRP money claim relief, the nature of which I explained in the primary reasons at [8] ‑ [10]. That was a claim for over $US200 million against the defendants.
The issue of principle dividing the parties on the present costs applications of the defendants, is over whether or not the defendants should receive an exceptional costs award in their favour. That order is sought on the basis of a complete indemnification for the defendants' legal costs incurred in both actions prior to their relevant discontinuance or permanent stay in each case.
The defendants in the alternative to pursuing indemnification costs orders, would seek special orders pursuant to s 280 of the Legal Profession Act 2008 (WA) - an outcome that may be seen that I had foreshadowed as prima facie appropriate under [219] of my primary reasons repeated earlier.
As to that lesser costs alternative there is only a minor level disagreement between the parties - with the plaintiffs, Mineralogy and Mr Palmer, in light of those prima facie costs observations, not actively opposing costs scale adjustment orders for the purposes of taxations of costs to be conducted on that basis.
The plaintiffs do not oppose limited special costs orders made by adjustments to the Legal Profession (Supreme Court and District Court) (Contentious Business) Determination 2018 as regards costs scale items 10(a) and 25. Nor do they oppose the raising of the allowable maximum hourly and daily rates for the defendants' senior and junior counsel by 50%. They do oppose any variation to those rates for the defendants' other lawyers.
So the key issue of principle now dividing the parties in their ongoing 'litigious war' is one of principle over the primary pursuit by the defendants of indemnity costs orders in both actions.
The costs clash looks to be driven by matters of tactical leverage, rather than over precise dollars of the legal costs. Each party is immensely well resourced and it is most unlikely that a receipt or non‑receipt of an indemnification costs award by the defendants would render any substantive economic impact as against any of the protagonists.

Principles under which indemnity costs orders are awarded

Indemnity costs orders are an exceptional character of order than a court should weigh most cautiously before being persuaded to issue such an order. In Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S) Pullin JA and I at [10] summarised the principles underlying the making of indemnity costs orders in litigation. It is only necessary to repeat principles 1, 2, 3, 4, 6, 7, 9 and 10 from those reasons. I will set them out below, verbatim:
1.A superior court, in its inherent jurisdiction, may make an indemnity costs order (see also Supreme Court Act 1935 s 37, and Legal Profession Act 2008 s 280).
2.An indemnity costs order departs from the usual costs disposition order, whereby costs are awarded on a party/party basis: EMI Records Ltd v Ian Cameron Wallace Ltd [1983] Ch 59.
3.The court's discretion as to the making of an indemnity costs order is a discretion that must be exercised judicially. In Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd (1988) 81 ALR 397 at 400 Woodward J said:
'Courts in both the United Kingdom and Australia have long accepted that solicitor and client costs can properly be awarded in appropriate cases, where "there is some special or unusual feature in the case to justify the court exercising its discretion in that way". (emphasis added)'
4.To obtain an indemnity costs order, it is not the case that the successful party needs to show a collateral purpose, or establish some species of fraud against the unsuccessful party. In J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA Branch) (No 2) (1993) 46 IR 301 303 French J by reference to the observations of Woodward J in Fountain Selected Meats, said:
'It is sufficient, in my opinion, to enliven the discretion to award such costs that, for whatever reason, a party persists in what should on proper consideration be seen to be a hopeless case.'
…
6.Competing principles need to be balanced in assessing the making of a potential award of indemnity costs. In Quancorp Pty Ltd v MacDonald [1999] WASCA 101 [7], Wheeler J observed:
'On the one hand, a party should not be discouraged, by the prospect of an unusual costs order, from persisting in an action where its success is not certain. Uncertainty is inherent in many areas of law, and the law changes with changing circumstances. It is inappropriate that a case be too readily characterised as "hopeless" so as to justify an award of indemnity costs to the successful party. However, where a party has by its conduct unnecessarily increased the cost of litigation, it is appropriate that the party so acting should bear that increased cost. Persisting in a case which can only be characterised as "hopeless" is an example of the type of conduct which may lead the court to a view that the party whose conduct gave rise to the costs should bear them in full.'
7.An indemnity costs order may be appropriate in situations which are shown to involve some element of improper, or at least unreasonable, conduct by a party or the party's legal advisers: see Colgate Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 233 (Sheppard J), referred to by Pullin J in Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95 [9].
…
9.An indemnity costs order may not be appropriate if the claimed costs would be likely to be recovered under the standard order for party and party costs, or under a special order raising or removing a scale ceiling allowance: Flotilla [11]. In Unioil (No 2) (193), Ipp J observed:
'However, counsel for the plaintiffs was unable to identify any costs so incurred that would not be covered by an order for party and party costs. An order for indemnity costs on this ground is therefore not warranted.'
10.Nonetheless, an indemnity costs order will constitute an appropriate sanction marking the disapproval of improper or unreasonable conduct: see Brookvista Pty Ltd v Meloni [2009] WASCA 180 [32], Flotilla [25]. In Flotilla Pullin J said [26]:
'A solicitor should not, in my view, resort to an application for an indemnity costs order merely to secure the recovery which could be achieved by a properly formulated special costs order, unless the unsuccessful party's conduct is genuinely to be impugned by the successful party.'
Towards principle 4 above see as well the later observations of Murphy JA in Yara Australia Pty Ltd v Oswal [2012] WASCA 264 at [33] as to the pursuit of cases with no chance of success.
By reference to principle 10 above and the applying of the observations from Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95 at [26], it was pointed out that notwithstanding a special costs order might from the quantitative end result perspective deliver an outcome at the same level as an indemnity costs order, that nonetheless some circumstances may dictate that an unsuccessful party's conduct will call out for a court to declare that some improper or unreasonable conduct by a party or their legal advisors requires an indemnity costs order. See also [11] and [12] of the Swansdale costs reasons mentioned earlier.
Upon the present applications there has been no real attempt by the successful parties (the defendants) to show that there would be some significant quantitative gap as between the costs amounts they would receive on a taxation conducted on the basis of adjusted scale limits (which as seen earlier the plaintiffs would largely accept), as opposed to an order for their complete indemnification as regards their legal costs.
Thus, the in principle basis that is primarily advocated by the defendants in seeking indemnity costs orders in both actions, has been grounded as a matter of principle on their contention that there has been unreasonable or improper conduct on the part of the plaintiffs. They contend that such unreasonable or improper conduct supports the court issuing extraordinary indemnity costs orders in both actions. To that end the successful defendants point out particularly by reference to CIV 3129 of 2018 (which was ultimately assessed by me to be an abuse of process of the court), that the abuse conclusion provides a sufficient platform for its indemnity costs submission, as is illustrated by the Court of Appeal's reasons in Malley's case. See Re Malley SM; Ex Parte Gardner [2001] WASCA 83 at [2].
A stay of an action on the basis that the action is an abuse of process, does provide a basis upon which a court may, not must, issue an order for indemnity costs against the party whose proceeding is so stayed.
In every case a close evaluation of the underlying circumstances, as was discussed in Swansdale at [12], is required. The inquiry may extend wider than simply considering the base outcome of the termination of the litigation itself.

Background to the termination of each action

It is helpful to briefly revisit some key aspects of the primary reasons, towards the rationale for that finding of an abuse of process, and thereupon, for the permanent stay of CIV 3129 of 2018.
In the course of my reasons I had occasion to canvass all of Mineralogy's prior actions including, relevantly, its earlier proceeding CIV 3166 of 2017. That action had been unilaterally discontinued and a pending application for indemnity costs by the defendants, had been advanced under the defendants' chamber summons of 7 June 2018 had been filed.
That costs application had been programmed to a special appointment in 2018. But that application, in effect, came to be deferred, until a determination concerning whether the subsequently issued action CIV 3129 of 2018, was an abuse of process or not.
As has been seen, my end conclusion in CIV 3129 of 2018 effectively upheld the permanent stay application by the defendants on the primary basis of contended abuse of process of the court.
Both actions sought to pursue at various times the same MRP money claim against the defendants. The primary reasons explain that liquidated claim, in effect, advanced contractually under the terms of two MRSLA agreements entered as between Mineralogy and Sino Iron and also with Korean Steel. There had been, as well, a guarantee of those MRP obligations by CITIC Ltd issued under another agreement, known as the Fortescue Co-ordination Deed (FCD). As regards the procedural history concerning pursuits, then non‑pursuits, by discontinuances or otherwise of the same MRP money claim, I had said at [165] ‑ [169] of the primary reasons:
165As already seen, Mineralogy's short-lived action of four days duration pursuing the MRP money claim again (namely, CIV 3011 of 2017) was commenced on the very day my trial reasons in Mineralogy [No 16] were made available to the parties. Discontinuance ensued, according to Mr Palmer for Mineralogy, because on his reading those trial result reasons Mr Palmer first considered that 'the proper course was to refer the dispute concerning the Minimum Royal claim for expert determination under the MRSLAs': see Mineralogy's written submissions at par 57(a), referring to Mr Palmer's 8 May 2019 affidavit at pars 68 - 73. But later he changed his view about that.
166Mineralogy's next action again pursuing the MRP money claim, CIV 3166 of 2017, was commenced on 21 December 2017. That came about, it is explained, because, upon further consideration of the trial reasons, Mr Palmer now 'considered the Minimum Royalty claim was not one of the categories of dispute identified in the MRSLAs and being referrable to expert determination': see Mineralogy's written submissions par 57(b).
167Action CIV 3166 of 2017, of course, was challenged by the CITIC defendants in a similar vein to the present application - as an abuse of process. An interlocutory application of the defendants to dismiss that action as an abuse of process had been set down for a hearing before me, with the usual associated directions for the exchanges of evidence and of written submissions beforehand. But this action was discontinued. That, it is now explained, was upon the decision taken to add Mr Palmer as a co‑plaintiff to the proceedings - which was also opposed by the defendants - and because (see Mineralogy's written submissions par 57(b)):
'As the proceedings had only recently commenced and had not moved beyond the parties' immediate dispute concerning the joinder of Mr Palmer to the proceedings, the view is taken that the most appropriate course at the time would be for Mineralogy to discontinue the proceedings and file fresh proceedings with both Mineralogy and Mr Palmer named as plaintiffs.'
168CIV 3166 of 2017 was then discontinued on 8 May 2018 by Mineralogy.
169There followed a hiatus of some months. But eventually there followed the filing by Mineralogy and Mr Palmer of the current action, namely, CIV 3129 of 2018. That was on 11 December 2018 with the pleading once again pursuing the MRP money claim: see Mineralogy's written submissions par 57(c).
The reasons canvass the extensive prior history of litigation in this court upon the same money claim as regards an on again, off again, pursuit of that allegedly due MRP money claim - of in the general magnitude of in excess of US$200 million. I began a final evaluation at [183] of the primary reasons under that heading, observing at [183] ‑ [187]:
Final evaluation and conclusion
183I am of the end view that application of the abuse of process principles as recently applied in UBS AG v Tyne requires the present action by Mineralogy and Mr Palmer must, indeed, be evaluated as an abuse of the process of the court. As a result it must be permanently stayed, in my view.
184As a matter of the everyday case management of CIV 1808 of 2013, which I case managed from October 2016 to its ultimate trial outcome, I observe that it would have been the easiest thing for Mineralogy, through highly competent senior counsel, over the period between December 2016 to January 2017, whilst then begging for the urgent trial hearing dates for that action, to deal with this issue explicitly. Mineralogy was then contemplating excision amendments to its then 4FASOC. Mineralogy could then have told the court, so instructed and openly, that Mineralogy was seeking to preserve for itself, so as to possibly revive at a later date if it thought fit, some or all of the civil causes of action it had previously pleaded out in CIV 1808 of 2013 seeking liquidated amounts against Sino Iron, Korean Steel and CITIC Ltd. That potentially was never said or even hinted at. An attempted express preservation of the MRP money claim then and, indeed, of an allied guarantee or indemnity under the FCD, were being taken off the table from CIV 1808 of 2013. Concern was being expressed then by the CITIC defendants about a future revival of such claims. If Mineralogy was not then abandoning these claims once and for all time, then something to that effect could and should surely have been said. It was not. That observation is not a criticism of Mineralogy's counsel.
185On the present application and in response to a question in that regard, counsel for Mineralogy and Mr Palmer in resisting the present application accepted that Mineralogy's failure at the time to make that (preservation) position clear at the time was 'unfortunate' (ts 58). Nevertheless, it was contended that a failure to be more explicit on that issue at the time is no inhibition to a current pursuit of the causes of action, subsequently. With respect, I disagree.
186Given what was, even at the start of 2017, an immense prior and surrounding procedural history background underlying CIV 1808 of 2013 (now canvassed), which had included a prior amendment and removal of the MRP money claim, incorporation of that MRP claim into a fresh action, a permanent stay of that action on the basis of it being assessed then as an abuse of process by Chaney J, a revival of the same MRP money claim against Sino Iron, Korean Steel and CITIC Ltd by its 4FASOC by Mineralogy in CIV 1808 of 2013, the situation cried out to be dealt with as regards the excised claims of Mineralogy. In January 2017 there was an obvious need for Mineralogy to be upfront with the court and with the CITIC defendants about the future exposure position concerning the excised MRP money claim - as well as other civil claims which were then effectively proposed to be removed under Mineralogy's further proposed final pleading amendments for a trial.
187With almost $US200 million at stake via the MRP money claim as was formerly claimed in CIV 1808 of 2013 and is claimed again under the present action (and previously in its multiple now discontinued predecessors), there must be no loss of perspective as to the potential fiscal magnitude of this claim. It was and is huge. A deliberate forensic decision was obviously made by Mr Palmer for Mineralogy at December 2016/January 2017 to prioritise Mineralogy's RCB claim over the MRP claim. Commercially speaking, that was a perfectly sensible and understandable tactical decision to take then. If the RCB issues were ultimately resolved relatively swiftly in Mineralogy's favour, as they have been to date, that result over time would generate for Mineralogy fiscal royalty reverse [sic, revenue] outcomes of a stable and significantly greater fiscal magnitude. Staggering amounts of royalty money had been at issue in CIV 1808 of 2013. Assessed in an overall context it is not difficult to see from a cold and purely quantitative perspective why the MRP money claim against Sino Iron and Korean Steel (and the related FCD guarantee indemnity claim against CITIC Ltd) were then viewed as quantitatively less urgent and less important than the RCB claim - from the position of potential future financial advantage to Mineralogy at the time, if successful. Mr Palmer's deliberate, tactical prioritisation decision to that end for the RCB claim followed. Nothing was said about the MRP money claim other than that it was being excised from Mineralogy's proposed further pleaded statement of claim.
Furthermore, I said this at [203], [204], [206] and [207]:
203In other words, with due respect, I cannot accept as presently accurate or persuasive the attempted rationalisations by Mr Palmer and Mineralogy to the effect that the undertakings referred to in the passing correspondence were only ever put conditionally upon them being accepted then by the CITIC defendants. That is not said. That is not my assessment of the position. And, of course, it would have been very easy then for Mineralogy to make the presumptive future position explicit.
204As a result, the court proceeded from 27 January 2017 on a basis that, save where something had been said explicitly as to the then 'parked' claims, the excised claims of Mineralogy were being removed once and for all. That is the explanation for my 'dancing at shadows' remark made to Mr Scerri QC for the CITIC defendants at the hearing on 20 January 2017 (CIV 1808 of 2013, ts 1,540).
…
206It was a surprise to later learn of the commencement of Mineralogy's action CIV 3166 of 2017, on 21 December 2017, pursuing the MRP money claim against Sino Iron, Korean Steel and CITIC Ltd. Until the present application, I had not learned of the short lived predecessor action CIV 3011 of 2017, which had raised the same MRP money claim at 24 November 2017 ‑ the action begun by writ the day I delivered my trial reasons for decision in Mineralogy [No 16]. Obviously, by the endorsed statement of claim to that unit, that action had been under an active preparatory consideration for some time before, in order to produce on that very day a fully pleaded out statement of claim as is seen endorsed to that short lived writ.
207After CIV 3166 of 2017 was commenced, it was swiftly referred to me for case management. Ultimately, I programmed it to an appointment hearing, given the abuse of process challenge immediately raised against it by the CITIC defendants. It was no real surprise then that Mineralogy later discontinued that action (leave to discontinue not being necessary) on 8 May 2018. The surprise was to learn that the further present action, CIV 3129 of 2018, was commenced by Mineralogy and by Mr Palmer on 11 December 2018.

Concluding at [211] ‑ [213], I said:
211As I have already said, an expressly discussed 'parking' for a future determination of the MRP money claim issues for the future could have been explicitly raised to be canvassed by Mineralogy as a future possible reviving claim event, if that prospect were then seriously entertained by Mineralogy. No doubt such a preservation direction would have been resisted. But that was no excuse not to confront the issue head on then. Arrangements could then have been provided for under bespoken case management directions - so that all parties and the court would then have then known, under clear terms, what causes of action were remaining preserved on the table as live, and what claims were then being taken off the table and were gone forever.
212No acceptable explanation has been provided to justify Mineralogy's failure to ventilate at the time during January 2017 the issue of a potential revival of the MRP money claim at a later time in another action. Not only was that omission unfortunate, it was contextually illegitimate, in my view.
Conclusions
213Consequently, I conclude at the end that there has been established not merely an Anshun estoppel vis-à-vis the CITIC defendants and Mineralogy as regards the MRP claims. Beyond that there is established an abuse of process by reason of the pursuit of the present action arising out of what has occurred. The abuse of process is applicable not only as against Mineralogy, but also, I conclude, against Mr Palmer. He is obviously the guiding hand, driving mind and tactical decision maker behind every step and decision that was and is made along the way by Mineralogy. His position is in every respect akin to that of Mr Tyne in UBS AG v Tyne.
It will be observed then that the MRP money claim of Mineralogy had been pursued earlier, even prior to its discontinuance in the penultimate action CIV 3166 of 2017. It had been first pursued in CIV 1808 of 2013. It was duly taken out of CIV 1808 of 2013 to be pursued in a different action that had then been permanently stayed by Chaney J. The MRP money claim was then reincorporated back in CIV 1808 of 2013, but only to be excised under circumstances I explained as Mineralogy sought an expedited trial of only the Royalty Component B aspects of CIV 1808 of 2013. The MRP money claim then became the subject of a short lived CIV 3011 of 2017 which only lasted a few days before being discontinued. Later still followed the two actions the subject of the present costs application.

The parties' written costs submissions

CIV 3166 of 2017

In the earlier CIV 3166 of 2017, the defendants' chamber summons of 7 June 2018 seeking indemnity costs, led to programming orders towards that application being determined at a special appointment. To that end as is customary, the parties had exchanged written submissions, prior to what had been fixed for a substantive special appointment hearing of that application on 20 September 2018 (see electronic court document 25 - my orders of 18 June 2018).
To the end of a disputed hearing upon costs, the defendants filed an outline of written submissions seeking indemnity costs, alternatively special costs orders on 6 August 2018 in CIV 3166 of 2017. Those written submissions were responded to by the plaintiffs' written outline of submissions dated 28 August 2018.
I must assume by reference to the commencement of the subsequent action CIV 3129 of 2018, that the special appointment was consensually vacated and with the issue of costs deferred (see electronic document 30 ‑ my orders made by consent on 6 September 2018).
Following my determination that the costs in both proceedings would be dealt with on the papers, I received further written costs submissions, being:
(a)the defendants' supplementary submissions dated 12 March 2020;
(b)the plaintiffs' outline of submissions dated 19 March 2020; and
(c)the defendants' reply submissions dated 26 March 2020.

CIV 3129 of 2018

In the later action, in the aftermath of my primary reasons, the parties also exchanged written costs submissions as regards the defendants pursuing indemnity costs orders. The submissions as received were:
(a)from the defendants as applicants seeking indemnity costs orders on 12 March 2020 (supported by the 12 March 2020 affidavit of Mr Anthony Kuhn of the defendants lawyers of record, Allens);
(b)from the plaintiffs as respondents, opposing indemnity costs of 19 March 2020; and
(c)by the reply written submissions on behalf of the defendants as applicants for indemnity costs of 26 March 2020.

Summary of the defendants' contention as regards indemnity costs

The primary contention of principle advanced for the successful defendants as applicants for exceptional indemnification costs orders can be seen encapsulated under their written reply submissions of 26 March 2020 in CIV 3129 of 2018. The defendants (at par 4) repeat the observations of Pullin J (as his Honour then was) in Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S) at [25] to the effect that it will be:
… appropriate in cases where there has been improper or unreasonable conduct on the part of a party or his legal advisors. … formulated special costs order ...
Essentially, the indemnification contention of the defendants is said to be borne out by my ultimate acceptance of the abuse of process arguments. They submit that there has manifested under the unfolding procedural history of the MRP money claim pursued in this court, a clear abuse of the court's process and ultimately resulting in the permanent stay of CIV 3129 of 2018.
Consequently, it is put that the defendants have convincingly demonstrated unreasonable or improper conduct by the plaintiffs, and thereby providing the necessary foundation in principle for the extraordinary costs orders sought by way of a full costs indemnification in their favour.
Moreover the defendants say that all the ostensible excuses of the plaintiffs, as proffered under their written submissions, including to the effect that, properly advised, they could not have known that their claims were manifestly unarguable - have been exposed by the primary reasons of 13 February 2020, as being essentially untenable.

Mineralogy and Mr Palmer's resistance submissions against indemnity costs orders in CIV 3129 of 2018

By their 19 March 2020 written submissions Mineralogy and Mr Palmer point out that the ultimate merits of the US$200 million MRP money claim have never been litigated upon their merits to finality in this court. So much may be accepted. But that feature is not, as I have endeavoured to point out in the primary reasons (in reference to the observations of the High Court in UBS AG v Tyne [2018] HCA 45; (2018) 265 CLR 77), a factor that necessarily inhibits a finding of abuse of process and, if considered appropriate, an award of indemnity costs as a correlative consequence.
Much of the costs submissions of Mineralogy and Mr Palmer in resistance deal with the contended reasonableness and more appropriate offer of the alternative of a special costs order by receiving or adjusting the cost scales - for the purposes of a taxation. However, that, I would assess, is not to the point of principle, if the court has ascertained a level of unreasonable or improper conduct that does on its assessment warrant calling out, by the sanction of an indemnity costs order. That is the anterior issue of principle and, by my assessment, the threshold for such orders has been shown here by the defendants.

Conclusion

CIV 3129 of 2018

As regards the appropriate dispositive costs orders in CIV 3129 of 2018, by my assessment, and essentially for all the reasons which are found collected by reference to the anterior procedural history of the MRP money claims as earlier run in this court under my primary reasons, the conduct of Mineralogy and Mr Palmer by initiating and pursuing CIV 3129 of 2018 was, at minimum, unreasonable conduct.
That, I assess, is particularly so, in light of the observations I rendered concerning Mineralogy's inter partes undertakings which had been offered regarding the MRP money claim action being ended for all time.
For the MRP money claim to then emerge yet again, in the face of that undertaking, I assess, was entirely unreasonable. In effect, I said as much to counsel about such a contingency should it ever happen.
Furthermore, the further pursuit of a once thought to be fully abandoned claim for in excess of US$200 million was a carefully planned and thought about future event. It was obviously planned in terms of its tactical revival, first seen under the short lived CIV 3011 of 2017, filed with a detailed statement of claim on the very day the trial reasons in CIV 1808 of 2013 in Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 16] [2017] WASC 340 (see my primary reasons at [165]) were delivered. That was clearly a tactical move.
Any MRP revival surprises over the MRP money claim might easily have been avoided by an explicit 'parking' of the MRP money claim on an openly canvassed basis, under a submission to that effect. As I discussed, that never happened.
At the relevant time, an expedited trial was being pursued by Mineralogy in CIV 1808 of 2013. No doubt an application to 'park' the MRP money claim would have been vigorously opposed at the time by the defendants. But even so, the fact that nothing at all was said about it under circumstances where other of the claims of the plaintiffs were then being expressly' parked', delivers a silence over that issue that was deafening and speaks volumes negatively about the plaintiffs' conduct.
In the end, I am of the view that an award of indemnity costs favouring the defendants upon their present application in CIV 3129 of 2018 is thoroughly justified.
Consequently, there should be orders accompanying the permanent stay orders which stipulate that the plaintiffs are to pay the defendants' costs of the action, that is CIV 3129 of 2018, on a full indemnification basis save to the extent that such an order does not authorise the recovery of costs of an unreasonable amount or which have been unreasonably incurred: see Swansdale [17]; Flotilla [28].
That only leaves the question of whether for the predecessor action CIV 3166 of 2017 there should be a similar indemnity costs order or not?

CIV 3166 of 2017

In the predecessor action which was discontinued on 8 May 2018 the disputed costs determination issues that now present, are almost the same. The recently exchanged submissions received between the parties reflect as much.
But one fresh costs argument as submitted by Mineralogy I need to address, is its resistance submission, to the effect that for the predecessor action, the position as regards its contended unreasonable conduct, ought be viewed more sympathetically, in effect, from a temporal perspective, towards Mineralogy. This is because at the time the High Court had not then delivered its reasons in UBS AG v Tyne, as regards the ascertainment of that an abuse of process. However, I am not at all persuaded by that submission. The effect of the High Court's decision dealing with that aspect of abuse of process in civil actions only declared what actually always was the position under the common law. There was no different common law position that decision altered.
On my assessment, essentially, the same high level magnitude of unreasonable conduct by Mineralogy can be ascertained as regards its commencement and then eventual discontinuance of that action and its pursuit thereof, the MRP money claim. That conclusion is essentially rendered under the circumstances surrounding events of late 2016 and 2017, which gave rise to the basis upon which I was persuaded then to order an expedited trial in CIV 1808 of 2013, at Mineralogy's behest.
In that same context, the court had learned of inter partes undertakings which Mineralogy had canvassed then, in particular by reference to a permanent excision of its MRP money claim which was seen as being ruled out by excisional pleading amendments. That gave rise to the circumstances where a clear impression was then created that the excised MRP money claim cause of action would not see the light of day again. Events which occurred after the trial result in CIV 1808 of 2013 were directly repugnant to the impression then created.
All the same unreasonable conduct by a party to litigation considerations apply with equal force towards the predecessor action CIV 3166 of 2017 as regards costs orders.
Consequently, that discontinued action ought also be made the subject of an order in similar terms favouring the defendants by way of their costs indemnification.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

DW
Associate to the Honourable Justice Martin

24 APRIL 2020