Mineralogy Pty Ltd v Sino Iron Pty Ltd - [2022] WASC 329

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   MINERALOGY PTY LTD -v- SINO IRON PTY LTD [2022] WASC 329
CORAM:   KENNETH MARTIN J
HEARD:   18 AUGUST 2022
DELIVERED          :   30 SEPTEMBER 2022
FILE NO/S:   CIV 1424 of 2021
BETWEEN:   MINERALOGY PTY LTD
Plaintiff
AND
SINO IRON PTY LTD
First Defendant
KOREAN STEEL PTY LTD
Second Defendant
CITIC LTD
Third Defendant

Catchwords:

Practice and procedure - Case management - Contract action - Administration cost recoupment clause relied upon - Legal cost outlay expenditures claimed back under recoupment clause - Pleading and particularisation issues over claim - Case management directions

Legislation:

Nil

Result:

The plaintiff's application to amend its statement of claim is withheld

Category: B

Representation:

Counsel:

Plaintiff	:	Mr K Byrne
First Defendant	:	Mr S Free SC & Mr R J Price
Second Defendant	:	Mr S Free SC & Mr R J Price
Third Defendant	:	Mr S Free SC & Mr R J Price

Solicitors:

Plaintiff	:	Hamid Mirza
First Defendant	:	Allens
Second Defendant	:	Allens
Third Defendant	:	Allens

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

Mineralogy Pty Ltd v Sino Iron Pty Ltd [2022] WASC 319
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2014] WASC 444
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2014] WASC 444 (S)
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 3] [2015] WASC 272 (S)
Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S)

KENNETH MARTIN J:

Introduction: The costs recoupment issue

This action was commenced by the plaintiff, Mineralogy, under its writ of summons with an endorsed statement of claim on 21 May 2021 (folio 1), against the defendants, Sino Iron Pty Ltd, Korean Steel Pty Ltd and CITIC Ltd ('the CITIC parties'). CITIC Ltd is the holding company for Sino Iron and Korean Steel.
Mineralogy sues in reliance upon the engagement of cl 27(a)(xiii) of the Mining Right and Site Lease Agreement ('MRSLA') it entered with Sino Iron - and also cl 27(a)(xiii) of the MRSLA it entered with Korean Steel. Both MRSLAs were entered by the parties on 21 March 2006.
Clause 27(a)(xiii) is identical in both MRSLAs and reads:
(a)Sino/Korean hereby covenants with Mineralogy at all times during the Term:
...
(xiii)to pay all of Mineralogy's costs in administering this Agreement and Mineralogy's delegation thereunder.
So seen, this covenant presents, in naked terms, a contractual obligation for Sino Iron and Korean Steel to pay 'Mineralogy's costs in administering this Agreement ...'.
Other covenants found in the same MRSLAs have already been extensively canvassed in other civil litigation - both in this court and elsewhere. However, the present claim uniquely sees Mineralogy invoke the express term under cl 27(a)(xiii) in each MRSLA.

An overview

The original statement of claim in this action was expressed to be prepared by Mineralogy Pty Ltd by its in-house counsel, carrying the signature of 'Kane Jones' under a designation, 'Solicitor for the Plaintiff'.
At that time, i.e. 21 May 2021, the pleading sought relief for Mineralogy, expressed as;
(a)Damages in the sum of $27,312,977, [sic] 41.
The critical component plea of the originating statement of claim was found then at 13. Under a heading 'Mineralogy's Costs in Administering the MRSLAs', the plea read:
As a result of administering the MRSLAs, the plaintiff has incurred costs of $27,312,977.41 (to the date of filing this proceeding).
There followed in the plea as then designated, 'particulars' - the first of which identified $19,813,414.21, within the ultimate sum Mineralogy was then suing for, as:
... legal costs in respect of the following legal proceedings commenced or opposed by some or all of the defendants pertaining to the MRSLAs and recoverable as comprising costs incurred by the plaintiff in administering the MRSLAs ...
Beneath that particular followed subpars 13(a)(i) through (a)(xxxiv). These subparagraphs referred to costs said to have been incurred in various proceedings, mostly in the Supreme Court of Western Australia, but also in the High Court of Australia, the Supreme Court of Queensland, the Federal Court of Australia and in the Court of Appeal of Western Australia.
Consequently, it had presented then, that whether Mineralogy won, lost, drew or even withdrew in any of the 34 as assembled civil proceedings, the unexpressed premise underlying Mineralogy's pleaded claim appeared to be that all legal costs as outlaid by Mineralogy were recoverable under cl 27 of the MRSLAs. That is, it was Mineralogy's evident position that the legal fees it incurred across all these civil actions were costs which had been incurred by it 'in administering' the MRSLAs.
Mineralogy's claim against CITIC as third defendant was predicated on CITIC's asserted obligations, in effect, as a guarantor of the obligations of Sino Iron and Korean Steel. On 22 October 2008, CITIC entered a deed with Mineralogy where CITIC agreed to guarantee any unfulfilled obligations that Sino Iron or Korean Steel owe to Mineralogy: see cl 11.5 of the Fortescue Co-ordination Deed ('FCD'). This is articulated at par 12 of the statement of claim.

The procedural history of this action

Mineralogy's as originally filed statement of claim contained no further material facts - to elaborate upon how its claimed damages of $19.8 million in asserted legal costs, across 34 different Australian civil proceedings, had positively engaged with cl 27(a)(xiii) of the MRSLAs - and thus to explain how those legal costs ever came to be incurred through it 'administering' the MRSLAs.
Original par 13 in the statement of claim simply rendered an observed assertion to that effect, as is seen. Some of the accompanying so-called 'particulars' went a little further.
Beyond the claimed legal costs (as 13(a)) in the original pleading, Mineralogy also claimed that the CITIC parties owed other costs also due by reason of and under cl 27(a)(xiii), identified as:
(b)$2,358,797.00 of the plaintiff's internal costs incurred by it in administering the MRSLAs.
[No indication was provided by the initial pleading concerning the nature or character of the 'internal costs' of Mineralogy so-called.]
(c)$4,447,690.22 of other legal costs incurred by the plaintiff in administering the MRSLAs and ...
[No further details concerning the nature or character of these 'other legal costs incurred', or how they had been incurred by Mineralogy in it administering one or other of the MRSLAs.]
(d)$693,075.98 of rent floor fees which are recoverable as comprising costs incurred by the plaintiff in administering the MRSLAs.
By par 14 of the original statement of claim, Mineralogy had pleaded that it provided written notice on 12 February 2021 to the CITIC parties, in effect, that all of those as now claimed costs were incurred in it administering and enforcing the MRSLAs and across the calendar years of 2013 to 2020 inclusive.
Mineralogy further pleaded that it had issued a notice of demand seeking full payment within 14 days (see par 14(b)). It pleaded at par 16 that, on 8 March 2021, a further demand was then issued to CITIC - essentially as guarantor of these unmet MRSLA obligations of Sino Iron and Korean Steel.
Unsurprisingly, there soon followed, on behalf of the CITIC parties, a lengthy request made for further and better particulars of Mineralogy's original pleading, including towards all the par 13 costs averments (and particulars) in the original statement of claim. That first request for better particulars was issued at 16 June 2021 (folio 5).
On 23 June 2021, the matter came before me in chambers in the CMC list at a first directions hearing. At that time, the CITIC parties had filed a bare defence of 16 June 2021 denying most allegations (folio 4).
Directions and orders were issued on 23 June 2021 requiring Mineralogy to file a response to the CITIC parties' request for further and better particulars, by 13 August 2021. A pleaded reply to the defence by 16 June 2021 was ordered to follow - and then for a strategic conference to be convened on 20 August 2021. By the later agreement reached between the parties, the programmed strategic conference was rescheduled to 7 October 2021.
Mineralogy duly provided a first response to the CITIC parties' request for the further and better particulars, on 3 September 2021. Mineralogy's responses to that request then extended across 177 pages (folio 11).
At the ensuing October 2021 strategic conference, Mineralogy, by counsel, then foreshadowed filing of an amended statement of claim. I allowed until Friday, 12 November 2021 for that to be done: see order 1 of my 7 October 2021 orders.
At the October 2021 strategic conference, the CITIC parties raised some further issues over the adequacy of the answered particulars given for par 13 of Mineralogy's statement of claim. The as foreshadowed amendment to Mineralogy's original pleading was then suggested as the likely mechanism to resolve the asserted detail deficiency problems.
There followed Mineralogy's amended statement of claim of 19 November 2021 (folio 16).
A significant pleading change then seen as implemented, saw an addition of further pleas by new pars 13A, 13B and 13C. These pleas had been newly added under a heading, 'Proper Construction of Clause 27(a)(xiii)'.
The new pleas added to the statement of claim, read:
13A.On a proper construction of clause 27(a)(xiii), 'administering' the MRSLAs is to be given its ordinary and natural meaning and includes the conduct pleaded in paragraph 13 below.
13B.Further or alternatively, on a proper construction of clause 27(a)(xiii), Mineralogy's costs of administering the MRSLAs are the entirety of Mineralogy's costs in connection with the MRSLAs.
13C.Further or alternatively, on a proper construction of clause 27(a)(xiii), Mineralogy's costs of administering the MRSLAs includes all costs in connection with managing the MRSLAs, ensuring the MRSLAs are performed fairly and in the correct way and that their terms are given their proper effect at law, including by instituting and defending legal proceedings.
Paragraphs 13A, 13B and 13C were introduced to precede the existing par 13 pleas. There were no changes made then to the original par 13 pleas - or, as to the accompanying 'particulars' provided to par 13.
On 29 November 2021, Mineralogy provided then, an amended response to the CITIC parties' response for further and better particulars of the statement of claim (folio 17). Mineralogy's amended answers in response now spanned 188 pages.
There ensued a further strategic conference in chambers on 8 December 2021. At this time, the CITIC parties asserted that there were still major difficulties with Mineralogy's statement of claim - despite the prior amendments. Further conferral was ordered in respect of that pleading dispute: see order 1 of the orders of 8 December 2021.
More particularly, the parties were then directed to confer over the potential conducting of a preliminary issue or issues. This was canvassed then to involve a small selected number of the as listed civil proceedings from par 13 being used as hopefully representative test cases for early determination - and based on facts to be agreed.
The rationale for the parties attempting to identify a limited number of selected cases for hearing and a final determination - was essentially tied to the problem that MRSLA covenant cl 27(a)(xiii), in referring to 'Mineralogy's costs in administering' (the MRSLAs), was obviously expressed in very broad and unconfined terms as to such costs.

Efforts to conduct a more limited hearing

The emerging difficulty was not so much over finding a true meaning for cl 27(a)(xiii) evaluated alone by reference to costs 'in administering' the MRSLAs. Rather, the greater problem looked then to be more in a potential application of that covenant on a case by case basis - against a potentially diverse array of differing civil litigious circumstances as collected under par 13. But some representative final determinations made across a few selected cases ought hopefully provide a basis to avoid, in effect, 34 different mini-trials distinctly conducted to ascertain whether MRSLA cl 27(a)(xiii) was engaged or not.
The task of seeking to apply cl 27(a)(xiii), with a view to a recovery of Mineralogy's outlaid legal costs - as costs 'in administering' both of the MRSLAs, necessarily carried with it the need for a close and scrutiny to be directed at the underlying unique litigation facts around and bearing upon each of the 34 different civil actions or appeals as collected by Mineralogy under par 13. This would be with a view of conducting in each instance, in effect, a discrete exercise in the characterisation of the outlaid legal costs of Mineralogy - towards evaluating whether or not they truly were costs that properly could be viewed as costs of Mineralogy 'in administering' both or either of the Sino Iron or Korean Steel MRSLAs.
Plainly, the facts underlying each of the various civil actions and appeals across their different courts would be uniquely different. Each set of litigious circumstances would therefore require stand alone scrutiny towards ascertaining whether MRSLA cl 27(a)(xiii) was legitimately engaged or not. That looming evaluative process across 34 actions or appeals, even with some greater particulars as provided to that point, presented then as a long and costly resourcing exercise. Slimming that task down to a more manageable cohort of actions or appeals was, if achievable on a representative basis, a desirable outcome.
For some of the 34 legal actions or appeals, Mineralogy had obviously lost - leading to it carrying a costs exposure to pay at least the CITIC parties' taxed costs. In some of the actions, such as for the well known Royalty Component B litigation, Mineralogy had been successful at trial and on appeal.
In some of the actions, Mineralogy obviously held a right to a recoupment of its taxed costs - based on orders of the court in its favour. A 'double recovery' of outlaid legal costs was an unlikely outcome.
Consequently, a narrower pursuit of only a limited number of test cases on a final basis, rather than all 34, was an endeavour to derive levels of guidance about the engagement of cl 27(a)(xiii) in different fact situations. Hearing and evaluating only a limited number of different fact situations would still assist an overall greater understanding of Mineralogy's 'costs in administering' recoupment legal position - without the undue consumption of public resources squandered in an evaluation of potentially 34 different species of past litigious actions or appeals.
The representative selection test case path was being canvassed then with a view to the court determining on a final basis what criteria was needed to establish the required level of nexus towards conducting the evaluation to resolve whether or not the civil litigation costs could be properly characterised as an exercise by Mineralogy 'in administering' the MRSLAs, or otherwise.
Efforts to progress a hearing of only a handful of representative cases for an early final hearing proceeded for some time as between the parties after 8 December 2021.
At that time, there was support expressed on all sides for the separate test case hearing questions exercise.
Nevertheless, at 24 January 2022, Mineralogy was then foreshadowing another amendment to its statement of claim pleading. By consent, I issued directions and orders allowing Mineralogy until 28 January 2022 to file a re-amended statement of claim - and to serve any proposed separate questions for an early determination hearing on a final basis, in effect, under a proposed statement of underlying (agreed) facts.
By consent, I also allowed the CITIC parties, in those circumstances, greater time to respond. I also ordered the parties to confer by 11 March 2022 concerning separate test case questions - with a view to a further strategic conference, then fixed for 25 March 2022.

Events at 25 March 2022

Unfortunately, Mineralogy's further amended statement of claim emerged almost two months late, at 25 March 2022 (folio 33). This was the same day as the next programmed strategic conference.
At that time, however, the CITIC parties looked to have by then identified at least five litigious civil actions or appeals - from out of the 34 under the par 13(a) particulars as possible representative test cases for an early final hearing. At the strategic conference, the parties' mutually expressed positions on the hearing a limited number of (at least five) selected test cases as identified by the CITIC parties had still looked promising towards such a narrowed exercise being agreed and pursued.
Mineralogy's position, as then expressed through counsel, did not appear to raise any difficulty over the five test cases as had then been identified by the CITIC parties. Instead, its only concern appeared to be whether possibly two more civil proceedings might also be included as test cases to also be determined early as well.
The five proposed test cases as at then had been identified by the CITIC parties were those raised by Mineralogy's as it had then pleaded by its statement of claim pars 13(a)(i), (xxiii), (xxvii), (xxx) and (xxxiii): see the CITIC parties' minute of proposed orders filed 22 March 2022 (folio 28).
Both parties had by then filed position papers concerning proposed test cases for the purposes of the 25 March 2022 strategic conference.
Mineralogy's position paper of 24 March 2022 (folio 31) read in part:
[3]The conferral has usefully brought the parties to a common position that a separate question or other preliminary determinations should be conducted. (my emphasis in bold)
That position paper identified a possible extra question six - beyond the five questions as were identified by the CITIC parties and said:
[6]Proposed questions 1 to 5 concern questions of construction of the MRSLAs. They are based on the parties' pleadings.
[7]Proposed question 6 seeks to capture the application of the construction of the MRSLAs as found by the answers to questions 1 to 5.
Mineralogy's position paper continued:
[10]The plaintiff seeks time to consider those alleged criticisms to ascertain whether they can be addressed or accommodated. The process has been impeded by matters extraneous to this proceeding.
It concluded:
[12]Respectfully, resolution of these matters should not be attempted in the limited time for the strategic conference.
[13]The plaintiff proposes that the question of the next procedural step be determined at a special appointment. The plaintiff's minute of proposed orders programs the filing of submissions in advance of the special appointment.
I came then to issue orders at that strategic conference allowing Mineralogy an extension of time to file a further amended statement of claim - and I granted leave for the CITIC parties to amend their pleaded defence, by 4 April 2022. This was because Mineralogy's further amended statement of claim had only just arrived. The request for more time towards it considering advancing the preliminary determination exercise - either by reference to the five ostensibly appropriate test cases as the CITIC parties had then identified, or to be supplemented by a couple more further questions as sought by Mineralogy beyond the five case candidates presented then as not unreasonable.
I also ordered, at the behest of the CITIC parties and without any real controversy then, that there were to be no further amendments made to the pleadings - after the filing of the amended defence

- without obtaining first the leave of the court for any further amendments: see order three of my orders of 25 March 2022.
I duly issued further direction orders concerning the filing of written submissions and any more affidavits towards a hearing of the proposed separate questions as a first tranche trial of limited issues. I then fixed a hearing of a special appointment for 9 June 2022 to determine, if necessary, whether the proposed separate questions or first tranche trial would be listed.

As mentioned, Mineralogy's further amended statement of claim, filed by leave, only arrived on 25 March 2022. It had wholly excised the former par 13A from out of that revised pleading. It also adjusted par 13B, which then came to read:
On a proper construction of clause 27(a)(xiii), Mineralogy's costs of administering the MRSLAs are all costs incurred by Mineralogy, including legal costs incurred by Mineralogy in legal proceedings, by its activities in connection with the MRSLAs.
Paragraph 13C remained unaltered. There was a strategic adjustment, however, made to the plea under par 13. A former heading 'Particulars', which had preceded all the ensuing subpars 13(a) through (d) information, was now removed.
Consequently, what had formerly been identified as being 'particulars' to that par 13 liquidated claim now held a more elevated status - as pleas of material facts.
At 25 March 2022, words from the former par 13 were converted to become, in effect, a chapeau to introduce the ensuing (former par 13) particulars as subpars 13(a) through (d) of the revised Mineralogy pleading.
Hence, par 13 as adjusted at 25 March 2022, now read:
As a result of administering the MRSLAs (properly construed as pleaded in paragraphs 13B and/or 13C above), the plaintiff has incurred costs of $27,312,977.41 (to the date of filing this proceeding), as follows:-
...
All the former particulars given as subpars 13(a)(i) through (xxxiv) remained, albeit now made as pleas of material fact - as should have been the case from the time of the original pleading. How else would the required nexus to costs 'in administering' the MRSLAs be shown without such accompanying material facts? There was also a slight augmentation by way of an added exclusion, for a plea under par 13(a)(xxiv) reading:
Excluding any costs recovered pursuant to a taxation or mediated outcome pursuant to the orders of the Court dated 18 December 2017 or further order.
No changes were made to subpars 13(b), (c) or (d). However, new 'particulars', as so labelled were now added, reading:
Particulars to paragraph 13
The Plaintiff repeats and relies on the Plaintiff's Amended Response to the Defendants' request for further and better particulars of the Plaintiff's statement of claim dated 21 May 2021 filed 29 November 2021.
[Note: This was a reference to Mineralogy's folio 17, being the amended response by Mineralogy to the CITIC parties' request for further and better particulars at that date.]
At 4 April 2022, the CITIC parties filed an amended defence plea in response to what was now Mineralogy's further amended statement of claim of 25 March 2022 (folio 35).
On 29 April 2022, Mineralogy filed its outline of written submissions concerning conducting separate question or initial trials (folio 36). In part, this submission read:
[8]The plaintiff proposes that the defendants' proposed delineation be altered in the following manner:
The issues to be determined at the initial trial are to be all issues, under the pleadings, concerning the plaintiff's claim to recover the costs the subject of paragraphs 13(a)(i), 13(a)(xxiii), 13(a)(xxvi), 13(a)(xxvii), 13(a)(xxx), 13(a)(xxxiii) and 13(d) of the further amended statement of claim (including, to the extent necessary, the basis upon which any costs that are recoverable would need to be assessed), other than the actual quantum of any costs that are recoverable in respect of any of those legal proceedings. (my emphasis in bold)
As a result, Mineralogy had effectively still not taken any issue at then over the CITIC parties' earlier five suggested test cases - but it had itself nominated further then two additional test case categories for an early final determination as well - by way of Mineralogy adding pars 13(a)(xxvi) and 13(d), as seen above.
By those written submissions Mineralogy added:
[10]Category 13(a)(xxvi) concerned Supreme Court of Western Australia Proceeding CIV2072 [sic, CIV 2072 of 2017 Palmer v CITIC Ltd]. This proceeding is nominated because it directly concerns the MRSLA and is an extant proceeding not yet the subject of a final judgment. The application of the proper construction of the MRSLAs to this proceeding will be dispositive of or provide guidance in respect of the resolution of categories 13(a)(xxi) and 13(a)(xxv).
[11]Category 13(d) concerns floor fees. The application of the proper construction of the MRSLAs to this category will provide guidance in respect of the resolution of category 13(b) and will have a meaningful effect on the resolution of the proceeding.
[12]The initial trial should be conducted in respect of the issues as delineated in the amended order above.
That was Mineralogy's expressed position, at 29 April 2022.
At 3 May 2022, by consent, I extended the time for the CITIC parties to file their submissions and affidavits responding to Mineralogy's April 2022 submission. Those written submissions of the CITIC parties were received at 13 May 2022 (folio 39).
In short, the two additional cases, as had been sought to be added by Mineralogy, were opposed for various reasons then expressed. Questions of practicality and the suggested undue scale of the mooted exercises were key reasons for the CITIC parties opposing Mineralogy's proposed augmentations for the expanded hearing exercise as proposed by Mineralogy.

Mineralogy's application of 8 June 2022: significant changes

On 8 June 2022, Mineralogy filed a fresh chamber summons application at then seeking leave to amend yet again its statement of claim (folio 41). This would be its fourth amendment to the pleading, if it were to be permitted.
Leave was also sought to amend Mineralogy's already amended responses to the CITIC parties' request for further and better particulars - as answered by Mineralogy on 29 November 2021. The affidavit of Mineralogy's newly appointed solicitor of record, Mr Hamid Kamal Mirza, was filed at the same time, in ostensible support of the application for leave to amend in those fresh respects.
Appended to Mr Mirza's affidavit, as his attachment HM-03, was his email sent to the lawyers of record for the CITIC parties, Allens, of 3 June 2022. The email attached a minute of a proposed second further amended statement of claim by Mineralogy - in respect of which the court's leave to amend was now required, given the terms of order 3 of the 25 March 2022 orders.
Also appended to Mr Mirza's affidavit, and as a subject of an associated leave to amend application, was his attachment HM-04. This was an amended response to the requested particulars document - spanning pages 36 through 223 of that affidavit - some 188 pages.
It will be remembered, by my direction orders of 25 March 2022, that there was to be a special appointment hearing conducted for a full day across 9 June 2022 concerning assessing the viability of the selected test cases for early determination. However, due to a family bereavement of my own, that hearing needed to be rescheduled to 18 August 2022.
It is important to appreciate that the minute of further amended statement of claim as circulated to the CITIC parties at 8 June 2022 (as within HM-03 under Mr Mirza's affidavit) would, if allowed, have delivered some fundamental changes to Mineralogy's former pleading

- essentially by an excision then of a good many subsisting pleas under par 13(a).
A key change as now foreshadowed was to lower the amount of legal costs as subject of Mineralogy's recoupment claim, significantly downwards. The reduction was down from the former claimed amount of $19,813,414.21, to a mere $11,641,297.26.
Proposed further amendments sought under Mineralogy's minute would, if allowed, excise many of the claims for recoupment as costs of administering the MRSLAs - in respect of the legal costs as were founding claims as the subjects of par 13 as items (a)(ii), (iii), (iv), (v), (vi), (xi), (xii), (xiii), (xiv), (xv), (xvi), (xvii), (xx), (xxi), (xiii), (xxv), (xxvi), (xxvii), (xxviii), (xxix), (xxx), (xxxi), (xxxiii) and (xxxiv). No reason was given at the time for these excisions as proposed by Mineralogy, or since.
The further amendments sought by Mineralogy's June 2022 minute of statement of claim would, if allowed, revise upwards the former par 13(b) internal costs claim amount (from $2,358,797), up to $2,923,942.72.
Similarly, Mineralogy's former recoupment plea as was made in respect of par 13(c) towards 'other legal costs incurred' by it would also be reduced down (from $4,447,690.22), to $4,019,280.00.
A proposed amended plea under par 13(d) would also see an increase in the 'rent floor fees' claimed as recoverable to Mineralogy as being costs incurred in it administering the MRSLAs - raised upwards in level from the former amount claimed (of $693,075.98), rising to $816,853.70.
Mineralogy's concluding prayer for relief at subpar (a), as seen in the minute of proposed June 2022 further amended statement of claim would, if allowed, deliver an overall adjustment downwards to Mineralogy's claimed 'damages' amount (more correctly evaluated not as damages, but as a claim to multiple liquidated sums sought under the MRSLA cl 27(a)(xiii) covenant) - from $27,312,977.41, down to $19,401,373.68.

Opposition by the CITIC parties to leave to amend the statement of claim of Mineralogy again

Leave to amend, as sought for the proposed June 2022 further changes to Mineralogy's statement of claim, was and has remained firmly opposed by the CITIC parties. That is the case, albeit a proposed in principle excision under the amendment by Mineralogy of some 24 of the 34 subpar 13(a) legal costs amounts sought to be recouped by Mineralogy in respect of its costs incurred for actions or appeals, is said to be welcomed.
In essence, however, it is said by way of opposition to leave to amend for the CITIC parties that the as proposed further amended pleading of Mineralogy - is essentially an internally inconsistent plea

- rendering it inappropriate that leave to amend to be granted until corrected. They also observe that the proposed amendments, if so allowed, would wholly remove four of the CITIC parties' formerly proposed five test cases for final determinations in respect of par 13(a) legal cost scenarios as were once proposed for the purpose of early final hearings.
The as proposed excisions would effectively undermine significant progress which had been made, or at least appeared to have been made, at 25 March 2022 - and, indeed at 29 April 2022, concerning an early final determination hearing of at least five of the par 13(a) claims as then identified categories of par 13(a) legal costs.
If allowed, the proposed pleading amendments sought by leave under Mineralogy's minute of 8 June 2022 would see only the category for the 13(a)(i) legal costs recoupment claim of Mineralogy survive, unaffected under largely excisional proposed amendments.
That surviving par 13(a)(i) plea had claimed, of course, a recoupment for Mineralogy's legal costs as incurred by it in reference to:
(i)Court of Appeal of Western Australia proceeding CACV 131 of 2015.

Most recent special appointment of 18 August 2022

At the most recent special appointment, counsel for Mineralogy, Mr Byrne, clarified verbally that his client was not seeking any recoupment for rental floor fees (under par 13(d)) - associated with any of the as proposed to be excised legal proceedings to be removed out of par 13(a) under the amendments in respect of which leave was being sought. That clarification was provided in response to a criticism to that effect made on behalf of the CITIC parties.
On one view, no other position than that as clarified by Mr Byrne could follow from a close reading of the marked up excisions - as seen in blue across the 7 June 2022 HM‑04 revised response to requested document particulars. However, whilst considering a foundation for an already obscure enough expressed nexus as between the Mineralogy claimed rental payments for floor space - as to those rent payments being viewed as Mineralogy's costs in administering the MRSLAs by cl 27(a)(xiii) - the excision position vis-à-vis rent ought at least be explicitly made clear from out of the proposed amendment pleading itself.
Likewise, there seems to be an omission in the particulars to par 13. They only refer to the 29 November 2021 response - when it would appear that the correct contemporary response by way of answering particulars, by Mineralogy, would be under attachment HM‑04 to Mr Mirza's affidavit of 8 June 2022. This would be to the proposed revised response to particulars document, which bears a date, 7 June 2022.
Further changes to Mineralogy's pleading ought at least bring its response to the anterior request for particulars right up to date. But those two issues as now canvassed are relatively minor considerations.
More substantively, the course of arguments across 18 August 2022 focused my attention at Mineralogy's responses to the CITIC parties' requests for particulars given in respect of the pars 13(b), (c) and (d) pleas.
As I will explain, the further information provided by Mineralogy, as responses under Mr Mirza's attachment of 7 June 2022 (HM-04), is still only expressed there in spartan and inadequate terms - towards articulating and thereby exposing to scrutiny why such amounts could possibly come to potentially trigger an MRSLA cl 27(a)(xiii) grounded cost recoupment right in Mineralogy, as its costs in administering the MRSLAs.
Mineralogy has for some time now been very understandably been pressed to provide appropriate details, linking how its as claimed diverse recoupment amounts may come to be validly characterised as those of Mineralogy in administering the MRSLAs under cl 27(a)(xiii).
The expected level of detail to establish such a nexus is presently still inadequate regarding subpars 13(b), (c) and (d). The ongoing inadequacy of details as to providing and exposing to scrutiny some proper basis in fact for finding a linkage to 'costs in administering' is presently at a level of legal embarrassment - assessing the responses of Mineralogy proposed to be given under HM-04 for the par 13(b), (c) and (d) pleas.

Internal costs: par 13(b) of the pleading

As to Mineralogy's so-called 'internal costs' as they are claimed under subpar 13(b), I mention HM-04 responses 477 through 484. The greatest level of provided detail emerges under the par 483 response, reading:
Their principal activities and conduct included providing accounting advice and services, health, safety and environment management, geology and tenement management, environmental management, general management, IT and document control management, operations management, reception and captain [sic] control. Such activities and conduct were carried out by Mineralogy's Perth office staff (except legal staff) as that office staff comprised variously between 1 January 2014 and 10 February 2021 and further details as to the identity of the individuals who comprise that staff are a matter properly for evidence. The plaintiff will adduce evidence as to this RFBP in the usual course.
That rolled up and non-specific jumble of words seen immediately above, referencing various diverse activities in general terms, is inadequate. First, the response provides no real level of information towards exposing how the claimed amount of $2,358,797.00 or $2,923,942.72, is derived.
Secondly, no empirical basis for the ascertainment of a cost, internal or otherwise, as being a cost in Mineralogy 'administering' the MRSLAs is to be found. Only a mishmash of generalised words, all rolled together, appears. This is inadequate as factual detail. In truth, it is largely verbal obfuscation.
At the end of the day, if a court were seriously to be asked to evaluate how any such liquidated amount holds any degree of nexus or linkage to the amount as being a cost genuinely incurred by Mineralogy by reason of it administering the MRSLAs - then no factual platform towards establishing that necessary nexus can be found in the response to the particulars - other than that they were incurred between 1 January 2014 and 10 February 2021. That is not good enough.
Without a proper level of factual detail provided by Mineralogy, showing a sufficient basis of its derivation of the amounts claimed

- alongside some better basis in provided facts to support it potentially characterising such costs amounts as being its costs 'in administering' the MRSLAs, then the par 13(b) plea stands as legally embarrassing and it should be struck out.
Mineralogy should be given a last, brief opportunity to provide that adequate level of detail. Otherwise, the current plea must be permanently excised.

Other legal costs: par 13(c) of the pleading

Next, in relation to the observed par 13(c) reference to so-called 'other legal costs' incurred by Mineralogy, a similar 'hunt' for proper details is required. The hunt extends across answers provided by responses seen commencing at par 486. Answer 487 directs attention to 10 tables, (a) through (j) inclusive, in respect of all these other legal costs.
Incorporated in the amount claimed is an amount (see response 487(b)) for Mineralogy's staff legal costs of $2,795,397 for a period 1 July 2006 to 10 February 2021 - but then, expressed as only 'to the extent that those costs are not allocated to any of the proceedings listed in [13(a)] of the plaintiff's statement of claim'.
That plea is also unacceptably unclear. What internal legal costs of Mineralogy are so allocated and to which of the ten (10) remaining par 13(a) legal proceedings (assuming the excisional amendments as proposed were to be allowed for the 24 other actions or appeals mentioned)?
Attachment HM-04 shows various excisions also made to details as had once been earlier provided, under pars 488, 490, 491 and 492. The information extends to par 501, noting an excision of tables A, C and D.
Save for information provided under par 499 concerning amounts paid to a Brierley Family Trust in 2019 and 2020, the residual amounts as identified across the remaining tables do not, without seeing a lot more detail, yet provide a basis to expose Mineralogy's argument to establish a necessary link or nexus to MRSLA cl 27(a)(xiii). The required link is as between the amounts paid out and the factual basis for a contended characterisation of that cost expenditure amount as a cost incurred by Mineralogy in it administering the MRSLAs. That information void is also unsatisfactory.
Until the missing essential information is provided, a trial could not viably proceed to evaluate whether such a claimed nexus to cl 27(a)(xiii) was legitimate, or otherwise. Save then in respect of amounts as identified, under par 499 and under table J, I also assess the remaining pleas as legally embarrassing. Again, I would allow Mineralogy one further brief opportunity to remedy the problem and provide the missing level of linkage details for these claimed costs to be arguably so characterised as costs incurred 'in administering' the MRSLAs.

Rent floor fees: par 13(d) of the pleading

The Mineralogy recoupment claim in respect of rent floor fees, seen under par 13(d), is proposed by the minute of amended pleading to be revised upwards in quantum, to $816,853.70. It looks to be the subject of the information as is provided across responses to requested particulars 503 through 513 - proposed to be revised under HM-04.
The claimed rent amounts look to be broken down across the table provided under response 508 - as regards Leederville and Level 22 premises. The date range spans July 2015 to December 2020.
I referred earlier to Mineralogy's response given under par 509. Again, however, some arguable basis in fact for finding a linkage

- connecting those rental payments as possibly being an MRSLA administration cost, across July 2015 to December 2020, is missing.
This is not a matter where greater details might be later provided under a witness outline, or in a witness statement, emerging later on and closer to a trial. The factual basis for the asserted nexus towards categorising the rent payments of Mineralogy for it renting a floor of a building(s) as an MRSLA administration cost of Mineralogy vis-à-vis its administration of the MRSLAs - needs to be properly detailed and articulated. Currently it is not. That is so even assessed at the level of the possible arguability to that desired end. There is just a void of information. The linkage position to rent being characterised as a possible MRSLA administration cost of Mineralogy is left to speculation or guesswork based on what is currently just asserted by Mineralogy in the barest of terms.

Again, I would afford Mineralogy one further brief opportunity to rehabilitate this plea. Otherwise, the plea should also be permanently struck out as legally embarrassing.

Any par 13(a) remaining issue to be determined?

In terms of a possible advancement to an early hearing and to a final early determination, of some component par 13(a) pleas - it is now the CITIC parties' position that only what would be left remaining at par 13(a)(i) of the proposed amended pleading of Mineralogy, can be suitable for a first tier final determination hearing.
On Mineralogy's part, it advocates a hearing for all that would remain of the ten (10) par 13(a) actions or appeals. In addition, Mineralogy advocates for hearing of its as claimed par 13(c) and (d) liquidated amounts as well, albeit not their ultimate quantifications.
The most important matter to presently address is the correction of the pleadings on all sides. At present, I assess there to be an insufficient utility in a mere determination of a par 13(a)(i) stand alone administration cost characterisation exercise - by reference to the court evaluating on a final basis the character of Mineralogy's legal costs associated with that ultimately discontinued Court of Appeal proceeding which was CACV 131 of 2015. I explain my reasons for that conclusion below.

Court of Appeal proceeding CACV 131 of 2015: par 13(a)(i)

As earlier mentioned, Mineralogy's claims to recoup its legal costs as specified at par 13(a)(i), via MRSLA cl 27(a)(xiii) - would be the subject of an excision of 24 of its 34 pleas under Mineralogy's most recently proposed minute of amendment to its statement of claim (and the guarantee provisions of the FCD against CITIC).
Between the as proposed amendments requiring leave to amend, Mineralogy's plea under par 13(a)(i) would remain intact.
Therefore, it is a subject of a sole contended exercise in early determination on a final basis advocated by the CITIC parties - under their minute of proposed orders as submitted on the present application.
That residual aspect within cl 13(a) reads:
(i)Court of Appeal of Western Australia proceeding CACV 131 of 2015: Sino Iron & Another v Mineralogy Pty Ltd.
Under the proposed further amended response to particulars document of 7 June 2022, which is HM-04 to Mr Mirza's affidavit of 8 June 2022, further information as Mineralogy's response about this par 13(a)(i) plea is found located under responses two (2) through six (6).
Again, the quest is to find some sort of basis for an arguable link as between the claimed cost amount and then to why this sum may possibly be regarded as falling under the umbrella of being properly viewed as a cost of Mineralogy in administering the MRSLAs. To that end, the information seen as provided by Mineralogy under par 13(a)(i) responses two (2) through six (6) is sketchy, at best.
It does not appear to be disputed the par 13(a)(i) appeal proceeding referred to came ultimately to be discontinued against Mineralogy by Sino Iron and Korean Steel. It unfolded in a fashion that I canvassed with counsel for the parties at the special appointment on 18 August 2022. There was no demur to any of those underlying facts surrounding CACV 131 of 2015 as I canvassed them at the time in the response by counsel for Mineralogy.
In short, what appears to have unfolded a long time ago transpired as set out below. Edelman J's reasons of 27 November 2014 had been delivered in CIV 2164 of 2013 in this court. That was in an action run as between Sino Iron Pty Ltd and Korean Steel Pty Ltd, against Mineralogy - seeking declaratory relief against Mineralogy in that context of a contract based argument over a disputed transfer of an environmental approval from Mineralogy to Sino Iron and Korean Steel. Edelman J observed at [4] that, in effect, the construction of the CITIC parties should be accepted.
Edelman J's reasons spanned 60 pages in reference to his ascertaining the true interpretation of cl 20.1 of the FCD, under his Honour's reasons, Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2014] WASC 444.
Essentially, Sino Iron and Korean Steel had been initially successful towards obtaining the declaratory relief they sought in that litigation against Mineralogy.
After Edelman J's appointment to the Federal Court of Australia, the action came to be case managed before Chaney J in this court's CMC List. At that time, notwithstanding the terms of the declaration as issued by Edelman J on 6 February 2015 (see his Honour's supplementary reasons which are Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2014] WASC 444 (S)), Mineralogy still had not made application to the Minister so as to cause a transfer of the status of proponent away from itself to Sino Iron and Korean Steel (see [2] and [3] of Chaney J's reasons, being [2015] WASC 272, delivered 30 July 2015).
At that time, Sino Iron and Korean Steel had applied, by chamber summons on 3 March 2015, to Chaney J for injunctive relief, in effect, to compel Mineralogy to actively comply with the terms of the declaration issued by Edelman J at 6 February 2015.
At the end, however, Chaney J declined that application for injunctive relief on the basis that it was relief beyond the scope of the limited relief as originally sought by the plaintiffs, in effect, under the action which had only sought declaratory relief and no more. Chaney J said at [29]:
In my view, the orders now sought give rise to the difficulty identified by Edelman J in his February reasons, namely that the orders seek to convert a declaration, which was sought at trial, into a mandatory injunction which was not.
See also his Honour's observations at [31].
Chaney J continued at [32]:
The application for supplementary orders should be dismissed. If the plaintiffs are to obtain orders of the type sought in their application, it is necessary for fresh proceedings to be commenced. That would enable all of the issues surrounding enforcement of the plaintiffs' declared contractual rights to be suitably identified and crystalised through proper pleadings. Whilst it might be thought that the burden of the plaintiffs is regrettable, it is the result of the election which the plaintiffs made ...
By his supplementary reasons of 3 November 2015, see Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 3] [2015] WASC 272 (S) (a decision made on the papers) Chaney J, in effect, consequently ordered that the plaintiffs, that is, Sino Iron and Korean Steel, pay Mineralogy's costs of their unsuccessful application made seeking the compulsive injunctive relief. His Honour said, at [7]:
... The application for supplementary orders stood or fell on the basis of the history of this litigation and the matters which were in issue for the purpose of the substantive matter. Whether or not the defendant is justified in failing to transfer the status of proponent is not a matter which falls for determination in these proceedings, for the reasons explained in Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 3]. The plaintiff was unsuccessful in his application for supplementary orders, and there is no reason why the costs should not follow the event in the usual way.
So far that is all procedural background to an appeal proceeding that came to be filed in the Court of Appeal (and the costs of Mineralogy incurred therein as respondent) which appeal was commenced by Sino Iron and Korean Steel as CACV 131 of 2015 on 26 August 2015. The 2015 appeal was challenging the refusal decision of Chaney J to grant injunctive relief that had been additionally sought

- not Edelman J's earlier as ordered declaratory relief.
Almost no detail is provided about the appeal under par 13(a)(i) and by Mineralogy's further and better particulars. Nevertheless, it does appear that the usual civil appeal written case and respondent's (Mineralogy's) answer and reply written appeal document materials

- were all prepared and exchanged as between this appeal's participants across the course mid-2015 and into 2016.
Notice was then given of an appeal hearing date as issued by the Court of Appeal, at 10 March 2016. However, on 16 May 2016 there came to be filed a discontinuance notice on behalf of the appellants (Sino Iron and Korean Steel) - thereby terminating their appeal. The appeal was never therefore heard or argued as an appeal by counsel before the Court of Appeal at a hearing.
On 16 May 2016, Allens, then the lawyers of record in the appeal for the appellants, had advised the Court Service Officer (civil) at the Court of Appeal concerning CACV 131 of 2015, in terms:
We enclose, for filing, the Appellants' discontinuance notice in relation to the above appeal.
We are currently conferring with the Respondent regarding appropriate costs orders in the proceeding, and anticipate filing a minute of consent orders regarding costs in due course.
The Respondent has been provided with a copy of this correspondence. Please contact us with any queries. (my emphasis in bold)
This appeal was therefore effectively terminated against Mineralogy as respondent, at that time and without any substantive appeal hearing.
On the face of it, such a unilateral discontinuance by Sino Iron and Korean Steel would look to have occasioned an opportunity at then for Mineralogy, as respondent to that ended appeal, to then seek at least some level of its appeal costs incurred whilst participating as the respondent in the appeal from the appellants - up to the point of the unilateral discontinuance.
The as observed reference by Allens to a minute of 'consent orders' dealing with costs had foreshadowed the usual costs exposure in such circumstances. But there is no record of any such consent orders ever having been submitted to the Court of Appeal over the issue of Mineralogy's costs incurred in that eventually terminated appeal - prior to its actual termination by the appellants before hearing.
Under such appeal and discontinuance circumstances, what then would be the basis for the par 13(a)(i) costs claim by Mineralogy, raised in the present action - to contend that an unstated amount of legal costs (as outlaid by it possibly to counsel or to external or internal solicitors) might legitimately be characterised as being a cost of Mineralogy meeting the parameters of the MRSLA covenant under cl 27(a)(xiii) for Sino Iron and Korean Steel to:
(xiii)... pay all of Mineralogy's costs in administering this agreement ...
How might it be that Mineralogy's legal costs of participating as a respondent in an appeal, taken by Sino Iron and Korean Steel against Chaney J's refusal to make supplementary compulsive orders forcing Mineralogy to comply with Edelman J's earlier declaration, come to arguably meet a description of 'costs in administering' the MRSLAs?
Chaney J's published reasons for decision present, with respect, as an entirely orthodox application of legal principle concerning the limited bounds of passive declaratory relief - and then for its accompanying limits within that civil action, CIV 2164 of 2013.

The par 13(a)(i) details

With that enquiry in mind, I turn then to Mineralogy's responses to particulars as provided by it to the CITIC parties under responses two through 16, given in answer to the CITIC parties' requests for better particulars.
In part, these responses read:
2.Proceedings numbered CAV 131 of 2015 (CACV 131 proceedings) concerned an appeal of certain decisions in the CIV 2164 [sic - CIV 2164 of 2013] Proceedings. Accordingly CIV 2164 [sic - CIV 2164 of 2013] response to RFBP at [1][a] (see (13)(a)(xxvii) below) is repeated here.
However, the answers provided concerning details for par 13(a)(xxvii), under responses 367 through 380 of HM-04, will be seen later in that document as struck out in blue. Accordingly, the par 2 response is a dead end. It goes nowhere.
Next, under response three, Mineralogy says:
3.The particular respects in which the CACV 131 proceedings pertained to the MRSLAs can be identified by reference to the decisions handed down in CIV 2164 proceedings (copies of which can be available on request), including the issue, at that time, whether the MRSLAs were frustrated and the effect of that contention on the relief sought by the defendants in the current proceeding (CITIC Defendants) in CIV2164 [sic - CIV 2164 of 2013] (see Mineralogy's outline of submissions filed 25 May 2016 at [45] (Blue Appeal Book, page 56) and the CITIC parties' outline of submissions filed 27 May 2015 (Blue Appeal Book, page 74) [sic].
But that response under par 3 is misdirected. Reference to the MRSLAs being 'frustrated' and 'the effect of that contention on the relief sought' looks, on the face of it, to be way off the mark. This is a discontinued appeal considering the reasons for decision of Edelman J and of Chaney J to which I referred to earlier.
A need for a close and careful evaluation of each of the particular underlying litigation circumstances as invoked by Mineralogy under its par 13(a), and why they might arguably be characterised as legal costs properly falling under an umbrella of its costs 'in administering' the MRSLAs so as to meet the cl 27(a)(xiii) MRSLA covenant, is insufficiently addressed by obscure references to word laden 'black holes'. An enquirer must wallow in an attempt to stumble upon something possibly relevant to see how the claim argued for arises.
Response four by Mineralogy reads:
4.The response to each of the requests is set out under the relevant heading below.
That response was given in answer to a request for particulars of the facts, matters, circumstances and things on which the Mineralogy contention arises - being that legal costs in respect of the designated (appeal) proceeding were costs incurred by Mineralogy 'in administering the MRSLAs'. But the par 4 response is unhelpful to that end.
Next, Mineralogy's response five reads:
5.The particular aspects of the MRSLAs that are relevant to the CACV 131 [sic - CACV 131 of 2015] Proceedings and which Mineralogy contends were 'so administered' for the purposes of these proceedings are described in the pleadings filed and judgments given in both the CACV 131 Proceedings and the CIV 2164 [sic - CIV 2164 of 2013] Proceedings and repeats paragraph 3 above.
Again, that response is not revealing. There is nothing given here that even begins to identify an argument to link Mineralogy's legal costs in resisting up to the discontinuance of the appeal commenced as CACV 131 of 2015 as costs to be characterised as costs of Mineralogy 'in administering' the MRSLAs.
Ultimately, that appeal was about the parameters of declaratory relief as issued by Edelman J. It concerned later and unsuccessful efforts of Sino Iron and Korean Steel to obtain compulsive injunctive orders - seeking to force Mineralogy comply with the declaration that issued in the face of its failure to act and transfer the environmental approval. None of that, on the face of it, shows an arguable basis for a valid link to the legal costs of Mineralogy being arguably viewed as costs in the administration of the MRSLAs.
Under its reply six, Mineralogy answered:
6.Accordingly, Mineralogy repeats here:
a.the response to RFBP [1(a)], insofar as the judgment sets out the particulars of aspects of the MRSLAs relevant to both the CACV 131 Proceedings and the CIV 2164 Proceedings -
[this on the face of it reads incoherently] -
b.the response to RFBP [1(b)], insofar as the pleadings set out the parts of the MRSLAs relevant to the [sic] both the CACV 131 Proceedings and the CIV 2164 Proceedings and so which are said to be administered for the purposes of those proceedings [sic - .]
However, nothing of any relevant or greater assistance to support a linkage requirement emerges under the answers as provided at between pars 6 and 16 of Mineralogy's response document.
The high water mark in terms of detail looks to be at Mineralogy's answer 10. It reads:
10.Legal costs were incurred with respect to ensuring the terms of the MRSLA were given their proper effect in law, and Mineralogy contends the legal costs were costs incurred in the administration of the MRSLAs. Mineralogy's position will be advanced by way of evidence and legal arguments served during the course of these proceedings.
But clearly, that response is also obfuscatory and inadequate. Assertion and contention is not an adequate basis for these assertions for claimed recoupment under the MRSLAs to proceed to a hearing.
Further response material under par 11 at subpars 11b. and 11c. looks also, with respect, to be factually erroneous. As discussed, the appeal to the Court of Appeal of Western Australia, which was CACV 131 of 2015, came to be ended under a unilateral notice of discontinuance of 16 May 2016. Consequently, Mineralogy's references to a notice of appeal of 26 August 2018 at par 11b. and to a notice of contention filed on 15 September 2015 also look misplaced and to require correction.

The object

The point of the preceding exercise around the par 13(a)(i) plea is only to demonstrate that, as matters stand, even upon allowing the proposed amendments as a subject of Mineralogy's application for leave to further amend its pleaded statement of claim and some of its responses to requested particulars of its claims, that no reliable basis to support the conducting of a preliminary hearing, or a first tranche final hearing concerning the residual plea that would be par 13(a)(i) as the CITIC parties suggest, is found. The current Mineralogy par 13(a)(i) plea is not reliably or sufficiently assembled to support such an exercise being viable or helpful at this stage.
Again, I am prepared to afford Mineralogy a brief and final opportunity to fix and correct the par 13(a)(i) plea and its answers to particulars plea - if it can. But the position as to coherency and details as the par 13(a)(i) plea currently manifests, is unacceptable and legally embarrassing.
Needless to say, I am also not attracted to Mineralogy's open ended suggestion of determining its other residual par 13 pleas, if leave to amend its pleading to eventually be given as sought.

Further matters

Towards the CITIC parties' contention that leave for Mineralogy to amend its statement of claim ought to be made a subject of a requirement, in effect, that Mineralogy undertake to never pursue again any of the as would be excised claims sought to be removed under the amendments from out of the former par 13(a) pleas - I am of the view it is not appropriate for the court to impose such a condition. Here, I refer to my most recent reasons for decision of 15 September 2022 in Mineralogy Pty Ltd v Sino Iron Pty Ltd [2022] WASC 319, especially at [60] and [67].
Power is not the issue. But there would, with respect, be an unacceptable level of 'horse trading' associated with attempts by the court to impose such a condition requiring such an undertaking.
The expressed concerns should be approached differently, in my view, but to the same end objective sought by the CITIC parties.
If an order of the Court were to be issued in the future granting leave to amend, that order could and should, in my view, make it explicit for the future that leave to amend the pleading was then being granted expressly on a basis that there then had been a full opportunity for Mineralogy in this action to pursue all claims which were to become a subject of the excisions under the latest amendments - so that a considered election by Mineralogy not to proceed any further with those claims in the action, was evident.
The likely consequence of that course would be that this court would, other things being equal, likely find there to be an abuse of process, were Mineralogy in the future to pursue a like claim for the same liquidated payment relief, grounded on cl 27(a)(xiii) over the excised former par 13 claims, without leave of the court first being granted to that course. That would most likely then be the position, if Mineralogy were to attempt to reventilate such excised claims again in this proceeding, or a future action.

Costs

Regarding the CITIC parties' contention that Mineralogy should meet the costs of, and thrown away, by the proposed amendments to the statement of claim as an award of indemnity costs, rather than by the more usual order to only meet their taxed costs (which Mineralogy accepts to meet), the position is that leave to amend the statement of claim again is not currently being given. That costs order position is therefore for the future.
Indemnity costs orders are, of course, exceptional orders. They can be made, as was discussed by the Court of Appeal in Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S) for circumstances when a court must render its disapproval of inappropriate procedural conduct in civil litigation.
Towards the present circumstances, there is nothing in Mineralogy's materials, more particularly in the affidavit of Mr Mirza, to offer any level of explanation that goes anywhere to explain why Mineralogy has effectively reversed a former position - and seeks to remove over two‑thirds of its former pleas in respect of which it had formerly sought recoupment for legal costs as a subject of pleas under par 13(a).
This presents as such a fundamental pleading change away from Mineralogy's earlier indicated position - concerning the identification of appropriate selected separate questions that an explanation is called for.
On my assessment, for what was a confronting enough collection of 34 diverse civil costs claims, considerable waste and delays will likely have been caused as a result of Mineralogy's foreshadowed change of position by excising 24 of those claims.
Consequently, if Mineralogy does still wish to proceed with similar proposed excisional amendments or amendments akin thereto, taking account of these reasons, then prima facie, there ought follow a correlative order that Mineralogy at least bear the costs thrown away by the CITIC parties to date. Special costs orders would also look to be likely given the state of the exercise. But indemnity costs is a question for another day.
All that is for the future. Presently, due to unresolved issues as now canvassed by these reasons, I am not yet prepared to grant leave to further amend the current statement of claim pleading in the respects as sought by Mineralogy.
The proposed amendments to the answers to particulars look less controversial. But a grant of leave to that end should also be held over, pending a wider resolution of greater pleading concerns as canvassed by these reasons.
The existing statement of claim pleas which I have identified as legally embarrassing under pars 13(a)(i), 13(b), 13(c) and 13(d) should be struck out, but with leave to replead these pleas and to properly particularise them within 28 days.
Beyond such orders, as articulated above in [172] (which will be held over for the present), the parties should confer as to orders giving further effect to these reasons.
Consequently, leave to further amend Mineralogy's statement of claim in terms of Mineralogy's proposed second further amended minute of statement of claim of June 2022 (HM-03) is presently withheld, pending a resolution of all concerns under a revised pleading that does not manifest the same deficiencies as now canvassed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DM
Associate to the Honourable Justice Martin
30 SEPTEMBER 2022