Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 2] - [2021] WASCA 105

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   MINERALOGY PTY LTD -v- SINO IRON PTY LTD [No 2] [2021] WASCA 105
CORAM:   BUSS P
MURPHY JA
BEECH JA

HEARD:   22 MARCH 2021
DELIVERED          :   25 JUNE 2021
FILE NO/S:   CACV 27 of 2020
BETWEEN:   MINERALOGY PTY LTD
Appellant
AND
SINO IRON PTY LTD
First Respondent
KOREAN STEEL PTY LTD
Second Respondent
CITIC LIMITED
Third Respondent
SINO IRON HOLDINGS PTY LTD
Fourth Respondent
CLIVE FREDERICK PALMER
Fifth Respondent

FILE NO/S: CACV 29 of 2020
BETWEEN: CLIVE FREDERICK PALMER
Appellant
AND
SINO IRON PTY LTD
First Respondent
KOREAN STEEL PTY LTD
Second Respondent
CITIC LIMITED
Third Respondent
SINO IRON HOLDINGS PTY LTD
Fourth Respondent
MINERALOGY PTY LTD
Fifth Respondent

Catchwords:

Practice and procedure - Abuse of process - Lengthy history of litigation between parties - Where plaintiff company included certain claims against defendants in proceedings and later withdrew those claims from the same proceedings and said they were abandoned - Where expedited trial ordered and held on the basis of issues having been accordingly confined - Where, after trial of issues and judgment in favour of plaintiff company on confined issues, plaintiff company instigated subsequent proceedings in respect of abandoned claims - Whether trial judge erred in finding subsequent proceedings in respect of such claims were an abuse of process

Practice and procedure - Whether claim for 'reflective loss' disclosed reasonable cause of action or constituted abuse of process - Where claim by individual, the directing mind and will of plaintiff company, for loss reflective of the company's inability to pursue its claims by reason of abuse of process

Corporations - Shareholder's claim for reflective loss

Legislation:

Nil

Result:

CACV 27 of 2020
To the extent that leave is required, leave is granted and the appeal is dismissed

CACV 29 of 2020
To the extent that leave is required, leave is granted, the respondents' notice of contention is allowed and the appeal is dismissed

Category: A

Representation:

CACV 27 of 2020

Counsel:

Appellant	:	D F Jackson QC & K S Byrne & T R March
First Respondent	:	C M Scerri QC & S H Parmenter QC & T Maxwell
Second Respondent	:	C M Scerri QC & S H Parmenter QC & T Maxwell
Third Respondent	:	C M Scerri QC & S H Parmenter QC & T Maxwell
Fourth Respondent	:	C M Scerri QC & S H Parmenter QC & T Maxwell
Fifth Respondent	:	No appearance

Solicitors:

Appellant	:	Alexander Law
First Respondent	:	Allens
Second Respondent	:	Allens
Third Respondent	:	Allens
Fourth Respondent	:	Allens
Fifth Respondent	:	In person

CACV 29 of 2020

Counsel:

Appellant	:	D F Jackson QC & K S Byrne & T R March
First Respondent	:	C M Scerri QC & S H Parmenter QC & T Maxwell
Second Respondent	:	C M Scerri QC & S H Parmenter QC & T Maxwell
Third Respondent	:	C M Scerri QC & S H Parmenter QC & T Maxwell
Fourth Respondent	:	C M Scerri QC & S H Parmenter QC & T Maxwell
Fifth Respondent	:	No appearance

Solicitors:

Appellant	:	Alexander Law
First Respondent	:	Allens
Second Respondent	:	Allens
Third Respondent	:	Allens
Fourth Respondent	:	Allens
Fifth Respondent	:	In person

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

Ballard v Multiplex [2008] NSWSC 1019; (2008) 68 ACSR 208
Bank of Adelaide v Lorden [1970] HCA 59; (1970) 127 CLR 185
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Brighton v Australian and New Zealand Banking Group Ltd [2011] NSWCA 152
Buckeridge v Mercantile Credits Ltd [1981] HCA 62; (1981) 147 CLR 654
Caltex Australia Petroleum Pty Ltd v Troost [2015] NSWCA 64
Central Coast Council v Norcross Pictorial Calendars Pty Ltd [2021] NSWCA 75
Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33; (2010) 75 NSWLR 245
Chen v Karandonis [2002] NSWCA 412
Christensen v Scott [1996] 1 NZLR 273
Clayton v Bant [2020] HCA 44; (2020) 95 ALJR 34
Dean v Antunes [2016] NSWSC 1845
Deep Investments Pty Ltd v Casey [2018] FCA 603; (2018) 125 ACSR 564
Dow Jones & Co Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575
Ekes v Commonwealth Bank of Australia [2014] NSWCA 366; (2014) 313 ALR 665
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
George Fischer (Great Britain) Ltd v Multi Construction Ltd, Dexion Ltd [1995] 1 BCLC 260
Gould v Vaggelas [1985] HCA 75; (1985) 157 CLR 215
Harris v Milfull [2002] FCAFC 442; (2002) 43 ACSR 542
House v The King [1936] HCA 40; (1936) 55 CLR 499
Johnson v Gore Wood & Co [2002] 2 AC 1
K & J Acquisitions Pty Ltd v Manauzzi [2009] NSWSC 279
Kermani v Westpac Banking Corporation [2012] VSCA 42; (2012) 36 VR 130
Marex Financial Ltd v Sevilleja [2020] UKSC 31; [2021] AC 39
Mercedes Holdings Pty Ltd v Waters (No 2) [2010] FCA 472; (2010) 186 FCR 450
Mercedes Holdings Pty Ltd v Waters (No 3) [2011] FCA 236
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
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 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 3] [2013] WASC 434
Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 8] [2015] WASC 473
Minister for Immigration v SZVFW [2018] HCA 30; (2018) 264 CLR 541
Morris v IMF Bentham Limited [2018] FCA 1009
O'Day v Commercial Bank of Australia Ltd [1933] HCA 37; (1933) 50 CLR 200
O'Grady v Northern Queensland Co Ltd [1990] HCA 16; (1990) 169 CLR 356
O'Shane v Harbour Radio Pty Ltd [2013] NSWCA 315; (2013) 85 NSWLR 698
Palmer v CITIC Ltd [No 2] [2019] WASC 14
Port of Melbourne Authority v Anshun Pty Ltd (No 1) [1980] HCA 41; (1980) 147 CLR 35
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589
Prudential Assurance Co Ltd v Newman Industries Ltd (No 2) [1982] Ch 204
Re Perkins [1898] 2 Ch 182
Schoenhoff v Commonwealth Bank of Australia [2004] NSWCA 161
Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93
Sino Iron Pty Ltd v Mineralogy Pty Ltd [2019] WASCA 80; (2019) 55 WAR 89
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76
Strickland v Director of Public Prosecutions (Cth) [2018] HCA 53; (2018) 266 CLR 325
Stuart v Goldberg Linde [2008] 1 WLR 823
Sutherland v GHR Accounting (No 3) [2017] NSWSC 373
Taylor v Sanders [1937] VLR 62
The Commonwealth of Australia v Verwayen [1990] HCA 39; (1990) 170 CLR 394
Thomas v D'Arcy [2005] QCA 68; (2005) 1 Qd R 666
Timbercorp Finance Pty Ltd (in liq) v Collins [2016] HCA 44; (2016) 259 CLR 212
Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507
Total Oil Products (Australia) Pty Ltd v Robinson [1970] 1 NSWR 701
Tyne v UBS AG [2016] FCA 241; (2016) 338 ALR 624
UBS AG v Tyne [2018] HCA 45; (2018) 265 CLR 77
V Plus Holdings Pty Ltd v Bank of Western Australia Ltd [2012] NSWSC 1327; (2012) 91 ACSR 551
Victoria International Container Terminal Ltd v Lunt [2021] HCA 11; (2021) 95 ALJR 363
Vossloh Aktiengesellschaft v Alpha Trains (UK) Ltd [2010] EWHC 2443 (Ch); [2011] 2 All ER Comm 307
Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378

Table of Contents

Introduction

The earlier proceedings

CIV 1808 of 2013

CIV 2303 of 2015 and CIV 2368 of 2015

CIV 3011 of 2017

CIV 3166 of 2017

The deletion of the Clause 6.3 Claims in CIV 1808

The judge's findings in the primary decision

Procedural events in CIV 1808: March 2013 - November 2017

2013

2014

2015

2016

9 - 12 January 2017

16 - 17 January 2017

19 January 2017

Materials before Kenneth Martin J in CIV 1808 on 20 January 2017

The hearing on 20 January 2017

27 January - 23 February 2017

June - November 2017

Mineralogy's appeal

The question of leave to appeal

The standard of appellate review

CACV 27 of 2020 - issues and grounds of appeal

Abuse of process

Anshun estoppel

Parties' submissions

Ground 1 - Mineralogy's submissions

Ground 1 - the CITIC parties' submissions

Ground 2 - Mineralogy's submissions

Ground 2 - the CITIC parties' submissions

Ground 3 - Mineralogy's submissions

Ground 3 - the CITIC parties' submissions

Ground 4 - Mineralogy's submissions

Ground 4 - the CITIC parties' submissions

Grounds 5 and 6 - Mineralogy's submissions

Grounds 5 and 6 - the CITIC parties' submissions

Mineralogy's appeal - disposition

Principles - abuse of process

Analysis - Mineralogy's appeal

Conclusion

Mr Palmer's appeal

The FC Deed

Mineralogy/Mr Palmer's statement of claim in CIV 3129

The parties' submissions to the primary judge

The judge's reasons

CACV 29 of 2020 - grounds of appeal

Parties' submissions on the grounds of appeal

Grounds 1 and 2 - Mr Palmer's submissions

Grounds 1 and 2 - the CITIC parties' submissions

Grounds 3, 4 and 5 - Mr Palmer's submissions

Grounds 3, 4 and 5 - the CITIC parties' submissions

The CITIC parties' notice of contention

The CITIC parties' submissions on the notice of contention

Mr Palmer's submissions on the notice of contention

The proper construction of the primary decision concerning Mr Palmer's claims

Disposition - Mr Palmer's appeal

Conclusion

JUDGMENT OF THE COURT:

Introduction

These are appeals against orders made by Kenneth Martin J on 20 February 2020, pursuant to his Honour's reasons for decision in Mineralogy Pty Ltd v Sino Iron Pty Ltd[1] (primary decision). The judge ordered that the primary proceedings, CIV 3129 of 2018 (CIV 3129), be permanently stayed.
[1] Mineralogy Pty Ltd v Sino Iron Pty Ltd [2020] WASC 40 (primary decision).
The primary proceedings involved an action commenced by the appellants ('Mineralogy' and 'Mr Palmer', respectively) on 11 December 2018 against the first to fourth respondents (CITIC parties). The proceedings concerned claims for money allegedly payable by (1) the first respondent (Sino) and the second respondent (Korean) pursuant to agreements into which they entered with Mineralogy on 21 March 2006, and (2) the third respondent (CITIC) as guarantor and/or indemnifier under a deed dated 22 October 2008. The CITIC parties applied in the primary proceedings for orders including that (1) the action be stayed as an abuse of process in the court's inherent jurisdiction, or pursuant to O 20 r 19(1) of the Rules of the Supreme Court 1971 (WA) (RSC), or (2) alternatively, the plaintiffs be barred from proceeding any further by reason of an Anshun estoppel.[2] As noted earlier, the judge made orders in favour of the CITIC parties for a permanent stay.
[2] Primary decision [3].
The agreements dated 21 March 2006 between Mineralogy and Sino on the one hand, and Mineralogy and Korean on the other, which were the subject of the primary proceedings (Agreements), are in relevantly identical terms, and their general effect may be summarised with respect to the agreement between Mineralogy and Sino (Sino agreement). In broad summary, and relevantly for present purposes, the Sino agreement is to the effect that (1) Mineralogy, the holder of certain mining leases, grants Sino the right to take ore from the areas of the mining leases, (2) Sino agrees to produce certain iron ore products from the ore for sale or export, and (3) Sino agrees to pay the Mineralogy Royalty comprising two separate components, being Royalty A at a fixed rate of A$0.30 (subject to CPI) per tonne of ore taken during the term of the Sino agreement, and Royalty B relating to the notional export value of the ore taken during the Sino agreement (Royalty B).
In addition, cl 6.3 of the Sino agreement (in general terms) is to the effect that:
(a)subject to certain specified matters, Sino must produce no less than 6 million tonnes of Product by no later than 20 March 2013; and
(b)if Sino fails to do so, it must, by no later than one month following 20 March 2013, pay Mineralogy an amount equivalent to the Mineralogy Royalty payable on the amount of Magnetite Ore required to produce 6 million tonnes of Iron Ore Concentrate.
The principal claim in the primary proceedings concerned a claim by Mineralogy against Sino/Korean pursuant to cl 6.3 of the Agreements. In addition, Mineralogy also claimed that CITIC was liable as guarantor and/or indemnifier under a deed called the 'Fortescue Coordination Deed' dated 22 October 2008 (FC Deed), for the non‑payment by Sino/Korean of the money allegedly due to Mineralogy under cl 6.3 of the Agreements. The judge described Mineralogy's claim under cl 6.3 of the Agreements, and the related claim under the FC Deed against CITIC as guarantor and/or indemnifier, as the 'MRP money claim'. In these reasons, Mineralogy's claim against Sino/Korean under cl 6.3 of the Agreements, and Mineralogy's related guarantee/indemnity claim against CITIC under the FC Deed for non‑performance of cl 6.3 of the Agreements, are referred to as the 'Clause 6.3 Claims'.
There was also a claim by Mr Palmer in the primary proceedings, which was described by the judge as Mr Palmer's 'personal' claim. Mr Palmer's claim was to the effect that if, for any reason, Mineralogy was precluded from prosecuting the Clause 6.3 Claims, he would suffer loss as the ultimate shareholder of Mineralogy. Mr Palmer contended that, although he was not a party to the FC Deed, he was an express object of the guarantee and indemnity given by CITIC.[3] He contended that if Mineralogy were precluded from pursuing the Clause 6.3 Claims, the value of his shareholding in Mineralogy would be diminished in an amount equivalent to the chose in action under cl 6.3 of the Agreements that had been lost by Mineralogy, and that CITIC was liable to him for his loss under the guarantee/indemnity provisions of the FC Deed.[4]
[3] Mr Palmer placed reliance on s 11(2) of the Property Law Act 1969 (WA).
[4] Primary decision [21] - [24].
Appeal CACV 27 of 2020 is the appeal by Mineralogy against the primary judge's decision (Mineralogy's appeal). Appeal CACV 29 of 2020 is the appeal by Mr Palmer against the primary judge's decision (Mr Palmer's appeal). In Mr Palmer's appeal, the CITIC parties have filed a notice of contention. For the reasons which follow, Mineralogy's appeal should be dismissed. Whilst there are some grounds of Mr Palmer's appeal which have merit, the CITIC parties' notice of contention should be upheld and Mr Palmer's appeal should be dismissed too.

The earlier proceedings

CIV 1808 of 2013

Mineralogy first pursued the Clause 6.3 Claims in action CIV 1808 of 2013 (CIV 1808) against the first to third respondents (CITIC defendants). This action was first commenced in the Supreme Court of New South Wales, before being remitted to the Supreme Court of Western Australia under the national cross‑vesting regime. The Clause 6.3 Claims were the founding basis for Mineralogy's action when it began in New South Wales. The Clause 6.3 Claims were later deleted from the statement of claim in December 2013 and subsequently included in a proposed minute dated 1 April 2016. The Clause 6.3 Claims were later deleted, again, pursuant to leave given on 27 January 2017, as discussed in more detail in [100] ‑ [111] below.[5]
[5] Primary decision [29], [76], [80], [105], [109] - [128].
A trial of the residual components of Mineralogy's action in CIV 1808 (with the Clause 6.3 Claims removed) was heard in June 2017, and judgment in CIV 1808 was delivered on 24 November 2017:[6] Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 16][7] (Mineralogy [No 16]). That trial and judgment concerned the proper construction of cl 8.2 of the Agreements with respect to Royalty B, in relation to Mineralogy's claims to be paid Royalty B on quarterly production at the mine in respect of the period 31 December 2013 ‑ 31 March 2017.[8]
[6] Primary decision [29] - [31].
[7] Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 16] [2017] WASC 340.
[8] Mineralogy [No 16] [841].
The judge's construction of Royalty B in Mineralogy [No 16] was, in substance (subject to a minor point), confirmed on appeal.[9]

CIV 2303 of 2015 and CIV 2368 of 2015

[9] Sino Iron Pty Ltd v Mineralogy Pty Ltd [2019] WASCA 80; (2019) 55 WAR 89.

Whilst CIV 1808 was on foot and before those proceedings were listed for final hearing, Mineralogy commenced a fresh action against the CITIC defendants in CIV 2303 of 2015, which included the Clause 6.3 Claims. A further action was commenced by Mineralogy in CIV 2368 of 2015. Chaney J permanently stayed both actions as an abuse of process, effectively on the basis that they raised claims or issues ventilated, or capable of being ventilated, in CIV 1808.[10]

CIV 3011 of 2017

[10] Primary decision [83] - [92]; see Mineralogy Pty Ltd v Sino Iron Pty Ltd [2015] WASC 454.

On 24 November 2017, the day that judgment in Mineralogy [No 16] (in CIV 1808) was delivered, Mineralogy filed a fresh writ in the Supreme Court of Western Australia in action CIV 3011 of 2017 (CIV 3011) against the CITIC defendants in respect of the Clause 6.3 Claims.[11]
[11] Primary decision [35].
On 29 November 2017, CIV 3011 was unilaterally discontinued by Mineralogy. Leave to discontinue was not required as pleadings had not yet closed. The action did not subsist long enough to be entered in a CMC List or referred to any judge for case management.[12]

CIV 3166 of 2017

[12] Primary decision [36] - [37].

On 21 December 2017, Mineralogy commenced a further action against the CITIC defendants in CIV 3166 of 2017 (CIV 3166) in respect of the Clause 6.3 Claims.[13]
[13] Primary decision [38].
On 16 January 2018, CIV 3166 was entered into the CMC List of Kenneth Martin J.[14]
[14] Primary decision [40].
On 31 January 2018, the CITIC defendants applied to have the action in CIV 3166 stayed on the basis that it was an abuse of process (akin to the application subsequently made in CIV 3129, which is the subject of this appeal).[15]
[15] Primary decision [41].
On 16 February 2018, Mineralogy applied for leave in CIV 3166 to add Mr Palmer as a second plaintiff and Sino Iron Holdings Pty Ltd ('Sino Iron Holdings') as a fourth defendant. A minute of proposed amended statement of claim alleged that Mr Palmer was at all material times the ultimate beneficial owner of all of the shares in Mineralogy. Sino Iron Holdings was sought to be added as a defendant on the basis that it was, in effect, the parent corporation of Sino. The minute included a claim of unconscionable conduct. The proposed claim by Mr Palmer in CIV 3166 was, in substance, the same as the 'personal claim' alleged in the primary proceedings, the stay of which is the subject of this appeal. The application was opposed by the CITIC defendants.[16]
[16] Primary decision [42] - [44].
On 26 February 2018, Kenneth Martin J programmed the interlocutory disputes in CIV 3166 for a hearing at a special appointment on 26 June 2018. Directions were made for the exchange of affidavit evidence and written submissions.[17]
[17] Primary decision [45] - [46].
On 8 May 2018, Mineralogy filed a notice discontinuing the action in CIV 3166 as against all defendants. As the CITIC defendants had not yet filed defences, the pleadings were not closed, and leave to discontinue was not required.[18]
[18] Primary decision [47].
On 7 June 2018, the CITIC defendants applied for indemnity costs, alternatively special costs orders, against Mineralogy in respect of the discontinued proceedings in CIV 3166. The parties filed submissions in that regard. The costs applications were listed for a hearing on 20 September 2018. On 6 September 2018, by consent, Kenneth Martin J adjourned the hearing of the costs applications. The applications have not since been pursued, and remain unresolved.[19]

The deletion of the Clause 6.3 Claims in CIV 1808[20]

[19] Primary decision [47] - [50].

[20] See, generally, primary decision [109] - [130].

On 13 December 2016, the judge delivered reasons in CIV 1808 in Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 13][21] (Mineralogy [No 13]). In that decision, the judge foreshadowed making interlocutory orders compelling Korean and Sino to pay to Mineralogy amounts claimed by way of Royalty B in CIV 1808.[22] His Honour said, in effect, that such interlocutory orders should be made subject to Mineralogy demonstrating that it was ready, willing and able to perform the Agreements, including by removing the allegations in the pleading to the effect that the Agreements had been terminated.[23]
[21] Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 13] [2016] WASC 403.
[22] That decision of the judge was overturned in this court in Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76.
[23] Mineralogy [No 13] [218] - [237].
In the period late October 2016 to 12 January 2017, Mineralogy informed the CITIC defendants that it was withdrawing a number of its claims, including the Clause 6.3 Claims. The details are outlined in [69] ‑ [93] below. These communications included:
1.A letter dated 13 December 2016 from Mineralogy to the CITIC defendants' solicitors (Allens) attaching 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 [Agreements].
2.An affidavit of Mr Palmer in CIV 1808 dated 21 December 2016 in which he stated (par 28):[24]
Mineralogy has removed and abandoned claims for the Minimum Royalty under clause 6.3 of the [Agreements].
[24] Primary decision [117].
On 20 January 2017, a directions hearing was convened before the judge to determine, amongst other things:
1.Mineralogy's pending application for leave to amend its statement of claim to withdraw specific causes of action, including the withdrawal of the Clause 6.3 Claims; and
2.Mineralogy's request for expedited trial dates, to which the CITIC defendants strongly objected.
The judge said that, at that directions hearing on 20 January 2017:[25]
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.
[25] Primary decision [126].
His Honour then said, again with reference to the hearing on 20 January 2017:[26]
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). (emphasis added)
[26] Primary decision [126].
On 27 January 2017, the judge delivered reasons in Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 14][27] (Mineralogy [No 14]), in relation to the interlocutory application heard on 20 January 2017. His Honour concluded that (1) Mineralogy should have leave to amend its statement of claim in terms of the 5FASOC (by way of deletion of claims from the then current statement of claim), and (2) there should be a trial of the Royalty B issues as between the parties in June 2017. The judge said that he acceded to the request by Mineralogy for expedited trial dates, in part, because he considered that earlier dates were achievable due to Mineralogy's deletion of a number of its former claims, including the Clause 6.3 Claims.
[27] Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 14] [2017] WASC 17.
On 25 January 2017, Mineralogy filed and served a proposed 5FASOC in CIV 1808. The pleading in the 5FASOC did not include any relief concerning the Clause 6.3 Claims. Nor did it contain any reference to cl 6.3 of the Agreements, or CITIC's liability as surety in respect of Sino/Korean's liability under cl 6.3 of the Agreements.

The judge's findings in the primary decision

On 11 December 2018, the primary proceedings were commenced. The writ was issued by both Mineralogy and Mr Palmer against the CITIC parties. The judge found that the allegations by Mineralogy to recover money under cl 6.3, and Mr Palmer's claim, were 'closely akin' to the discontinued claims in CIV 3166.[28]
[28] Primary decision [51] - [52].
In respect of the excision of the Clause 6.3 Claims from CIV 1808, the judge said that:[29]
As 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 [Clause 6.3 Claims] then and, indeed, of an allied guarantee or indemnity under the [FC Deed], 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. (emphasis added)
[29] Primary decision [184].
The judge observed that, on the hearing of the abuse of process application, counsel for Mineralogy and Mr Palmer (1) accepted that Mineralogy's failure at the time to make clear that it was preserving its position was 'unfortunate', and (2) nevertheless, contended that a failure to be more explicit on that issue at the time was not an inhibitor to subsequently pursuing those causes of action in CIV 3129.[30]
[30] Primary decision [185].
The judge disagreed with the latter contention and stated:[31]
Given what was, even at the start of 2017, an immense prior and surrounding procedural history background underlying CIV 1808 of 2013 …, which had included a prior amendment and removal of the [Clause 6.3 Claims], incorporation of [the Clause 6.3 Claims] 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 [Clause 6.3 Claims] 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 [Clause 6.3 Claims] - 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.
With almost $US200 million at stake via the [Clause 6.3 Claims] as [were] 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 [Royalty B] claim over the [Clause 6.3 Claims]. Commercially speaking, that was a perfectly sensible and understandable tactical decision to take then. If the [Royalty B] 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 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 [Clause 6.3 Claims] against Sino Iron and Korean Steel (and the related [FC Deed] guarantee indemnity claim against CITIC Ltd) were then viewed as quantitatively less urgent and less important than the [Royalty B] 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 [Royalty B] claim followed. Nothing was said about the [Clause 6.3 Claims] other than that it was being excised from Mineralogy's proposed further pleaded statement of claim. (emphasis added)
[31] Primary decision [186] - [187].
The judge continued:[32]
But had Mineralogy in early 2017 seriously then wished to preserve a future position as regards the [Clause 6.3 Claims] taken out of CIV 1808 of 2013, the preservation of that claim could and should have been canvassed with the court. It was not beyond the wit of senior counsel and the court to hive off, or to defer discrete issues from CIV 1808 of 2013 for later.
Had that course been asked for by Mineralogy, associated temporal explanations as were being proffered in defence of delays to production as pleaded by the CITIC defendants' defence and counterclaim might have been deferred to a later time. Those causes of action could have been discussed and identified to be 'parked' and dealt with under a distinct timetable and trial directions. (emphasis added)
[32] Primary decision [188] - [189].
The judge found that it was the deliberate decision of Mr Palmer for Mineralogy, in the wake of his Honour's reasons in Mineralogy [No 13], not to press for a determination of any preliminary issue as to the proper construction of the provisions of the Agreements concerning Royalty B on agreed facts.[33]
[33] Primary decision [190].
The judge found that, instead, Mineralogy deliberately chose to pare down its whole action in CIV 1808 so as to run a full trial to a completion, on an expedited basis, heard in June 2017. The judge described Mineralogy's decision as 'cold, calculated, voluntary forensic tactical decision, carefully taken for it then by its guiding directorial mind, Mr Palmer'.[34] Further, the judge found that the decision to excise the Clause 6.3 Claims from CIV 1808 'was not forced upon Mineralogy - but it necessarily carries its consequences'.[35]
[34] Primary decision [191].
[35] Primary decision [191].
The judge referred to the fact that Mineralogy had explicitly 'parked' some of its other claims in CIV 1808, deferring them to be determined at some later time.[36] His Honour found that this reinforced that such an option had been available to Mineralogy for the Clause 6.3 Claims.[37]
[36] Including its then pleaded restitution claim and the Agreements 'rectification' arguments: primary decision [192].
[37] Primary decision [192] - [193].
The judge noted that Mineralogy and Mr Palmer contended that, in the correspondence between the parties' respective lawyers in December 2016 to January 2017, the CITIC defendants had 'rebuffed' Mineralogy's inter partes undertaking not to pursue the excised claims, including the Clause 6.3 Claims. Mineralogy and Mr Palmer contended that (1) the CITIC defendants had wanted an express undertaking to be given by Mineralogy to the court, (2) Mineralogy would not agree to this extra step, and (3) the undertaking then lapsed, by reason of either non‑acceptance or an express rejection by the CITIC defendants.[38] Mineralogy contended that such a rejection and lapse was significant, particularly in the context that at the 20 January 2017 directions hearing, the court had not imposed, as an express condition of Mineralogy's further leave to amend in respect of the proposed 5FASOC, that the excised claims not be litigated in the future.[39]
[38] Primary decision [194] - [195].
[39] Primary decision [196].
The judge said that he was 'unable to accept that retrospective gloss on what occurred'.[40] His Honour continued:[41]
For the purposes of evaluating Mineralogy's explanations and its submissions summarised above, I have revisited again all Mr Palmer's affidavits sworn and filed across December 2016 and of January 2017 … Furthermore, I have read again all passing December 2016/January 2017 lawyer correspondence collected by Mr O'Donahoo as possibly bearing upon this issue at the time … Taken as a whole, Mineralogy and Mr Palmer's present suggestion that the inter partes undertaking by Mineralogy to not pursue its deleted claims in future was conditional upon that proposal being accepted at then by the CITIC defendants is, in my present assessment, simply not a supportable proposition. The so-called undertaking discussed then in the correspondence was, on my assessment, wholly unqualified. (emphasis added)
[40] Primary decision [196].
[41] Primary decision [197].
The judge also referred to his reasons of 27 January 2017 in Mineralogy [No 14], at [50(d)], under the heading 'Is Mineralogy ready, willing and able to perform its obligations under the [Agreements] at this time?'. There, his Honour had outlined four considerations that had 'borne upon [him] in reaching [his] affirmative conclusion to that question', the fourth of which was expressed as follows:[42]
(d) The undertakings and assurances which have been provided in passing correspondence from Mineralogy to date are another positive factor for me.
[42] Primary decision [198].
The judge said that:[43]
Revisiting now all the multiple issues and voluminous materials then put before me at January 2017 (see Mineralogy [No 14] [3] - [6]) only serves to reconfirm what I had then assessed to be Mineralogy's expressed position at that time, namely, that Mineralogy was then telling the court as it had told the CITIC defendants in the lawyers' correspondence, that it wished to proceed to an expedited trial of CIV 1808 of 2013. The proposed trial would be on a pared down claim basis that would be reflected in minutes of proposed amendment towards Mineralogy obtaining leave to amend its statement of claim again and to proceed to a trial on the basis of a 5FASOC, with Mineralogy making significant excisional concessions to that end.
In the exchanged iterations of minutes of proposed excisional amendments to Mineralogy's 4FASOC, as were then circulated for that purpose, the formerly raised [Clause 6.3 Claims were] always ruled through - showing it as being then proposed to be removed for the purpose of obtaining the required leave to amend as then was being sought by Mineralogy. Of course, this was in a context of the urgent trial of [Royalty B] issues then being sought by Mineralogy. The expedited trial course was then being fulsomely opposed as inappropriate and, in effect, unachievable by the CITIC defendants at January 2017.
Re-reading those materials again for the purposes of the present application only reaffirms my impression gained at 20 January 2017 which, namely, was to the effect that Mineralogy's excised claims, save where they were expressly being said then by Mineralogy to be being preserved (ie, 'parked'), were otherwise then being permanently removed. That was the 'price', in effect, of the leave to amend the statement of claim of Mineralogy. Unless expressly parked, Mineralogy's excisions were on a once and for all and final basis. That is the rationale for my reference as seen at [50(d)] of Mineralogy [No 14] to the 'undertakings and assurances' which have been provided in the passing correspondence from Mineralogy. (emphasis added)
[43] Primary decision [199] - [201].
The judge found that the correspondence between lawyers, specifically in relation to the Clause 6.3 Claims (bearing in mind that there were a multitude of other issues also being discussed as in contention at that time), did not convey any qualification by Mineralogy to its undertaking that it would not proceed with excised claims in the future if it were given leave to amend in order to obtain an expedited trial solely concerned with the Royalty B issues.[44]
[44] Primary decision [202].
Thus, in respect of Mineralogy's inter partes undertakings, the judge concluded:[45]
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.
[45] Primary decision [203].
The judge found that, as a result, the court proceeded from 27 January 2017 on the basis that, save where a claim had been explicitly 'parked', the excised claims of Mineralogy were being removed once and for all. The judge said that this explained his 'dancing at shadows' remark made to counsel for the CITIC defendants, Mr Scerri QC, at the hearing on 20 January 2017.[46] The judge found that, given his remark to Mr Scerri QC, it would have been the 'easiest thing' for Mineralogy's senior counsel at that hearing to have clarified Mineralogy's position to expressly seek to preserve for the future the excised Clause 6.3 Claims, had Mineralogy genuinely intended that it might potentially be revived in some future litigation. Further, the judge stated:[47]
The comment made at the time towards the fanciful nature of such a potentiality in the exchange with Mr Scerri QC saw me then diminishing the prospects of such a contingency. Mr Scerri QC had expressed his concerns based upon his suffering of many prior adverse experiences over excised causes of action then being revived by Mineralogy under future amendments. Mr Scerri QC's expressed scepticism has subsequently been vindicated, over my naive assessment at the time.
[46] Primary decision [204].
[47] Primary decision [205].
The judge stated that it was not until the interlocutory application in the primary proceedings that he learned of the 'short lived predecessor action' in CIV 3011 (raising the same Clause 6.3 Claims), which was commenced by writ on 24 November 2017. The judge noted this was the same day that he delivered the trial reasons for decision in Mineralogy [No 16]. His Honour found that:[48]
Obviously, by the endorsed statement of claim [in CIV 3011], 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.
[48] Primary decision [206].
The judge described it as a 'surprise', following the excision of the Clause 6.3 Claims from CIV 1808, to later learn of the commencement of Mineralogy's action, on 21 December 2017, in CIV 3166. The judge stated that it was 'no real surprise' that Mineralogy discontinued the action in CIV 3166 on 8 May 2018, given the immediate challenge to that action raised by the CITIC defendants. However, the judge stated that it was again a 'surprise' when the primary proceedings, in CIV 3129, were commenced on 11 December 2018 by Mineralogy and Mr Palmer.[49]
[49] Primary decision [206] - [207].
The judge accepted that the litigation of the Clause 6.3 Claims would have added weeks to a trial.[50] His Honour also found that the explanations in Mr Palmer's affidavit of 8 May 2019 concerning what occurred:[51]
[P]rovide pellucid insights to his thinking and underlying the tactical decisions made at the time for Mineralogy by him. But they do not, with respect, provide any legitimate rationalisation or a proper explanation to justify what occurred.
[50] Primary decision [172].
[51] Primary decision [208].

In respect of such decisions, the judge found:[52]
Deliberate forensic decisions were obviously made by Mineralogy and then implemented on a tactical basis - in a fashion I evaluate must undoubtedly be vexing to the CITIC defendants irrespective of their scale and resources. Recommencements followed by the serial discontinuances as are now seen collected under the procedural history as earlier detailed, on my assessment, constitute an abuse of the processes of the court and of its procedures by Mineralogy and Mr Palmer.
I accept that Mr Palmer was motivated by a desire to simplify matters to obtain an expedited trial at June 2017 for chiefly the [Royalty B] issues. I also accept that Mineralogy would have been hampered or frustrated against achieving that objective, if all the … arguments [in relation to the Clause 6.3 Claims], and particularly the CITIC defendants' many delay defences as scheduled and extending over 150 pages by the CITIC defendants needed to be determined. Nevertheless, in the end, that is no excuse for what has unfolded. It was easily avoidable. (emphasis added)
[52] Primary decision [209] - [210].
Further, in relation to the excision of the Clause 6.3 Claims from CIV 1808, the judge found:[53]
[A]n expressly discussed 'parking' for a future determination of the [Clause 6.3 Claims] 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.
No 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 [Clause 6.3 Claims] at a later time in another action. Not only was that omission unfortunate, it was contextually illegitimate, in my view. (emphasis added)
[53] Primary decision [211] - [212].
The judge accordingly concluded that the primary proceedings constituted an abuse of process.[54] His Honour said:[55]
I 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.
…
Consequently, 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 [Clause 6.3 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.
[54] Primary decision [213].
[55] Primary decision [183], [213].
His Honour also found Mr Palmer's 'personal claim' to be an abuse of process (the reasons for which are set out later in [220] ‑ [221] below).

Procedural events in CIV 1808: March 2013 - November 2017

Before turning to the issues in Mineralogy's appeal, it is necessary to set out in greater detail the procedural course of events in CIV 1808, including Mineralogy's decision not to proceed with the Clause 6.3 Claims. As will be seen, close attention to the course of proceedings and to the parties' communications informs the evaluation of whether, in all the circumstances, the primary proceedings constituted an abuse of process.

2013

On 18 March 2013, Mineralogy commenced a proceeding in the Supreme Court of New South Wales against the CITIC defendants regarding, among other things, the construction and performance of cl 6.3 of the Agreements. The claim sought payment of the minimum production royalty under cl 6.3 and other orders.
On 30 April 2013, the New South Wales proceeding was transferred to the Supreme Court of Western Australia and became proceeding CIV 1808.
On 3 June 2013, Mineralogy filed an amended statement of claim in CIV 1808 which included the Clause 6.3 Claims.
On 14 August 2013, Mineralogy filed a further amended statement of claim which included the Clause 6.3 Claims.
On 2 December 2013, Mineralogy filed a further amended reply and an amended defence to counterclaim in which Mineralogy pleaded that the Agreements had been terminated by reason of frustration, on the basis that Royalty B was not capable of calculation.
On 2 December 2013, Mineralogy applied for an urgent hearing in CIV 1808 to determine the issue of whether the Agreements had been terminated by frustration.
On 4 December 2013, Edelman J (as his Honour then was) refused Mineralogy's application for an urgent trial.[56]
[56] Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 3] [2013] WASC 434.
On 10 December 2013, Mineralogy filed a second further amended statement of claim alleging that the Agreements were terminated by frustration. This pleading withdrew (ie, deleted) the Clause 6.3 Claims.

2014

On 20 March 2014, Edelman J made orders that after the filing of Mineralogy's proposed third further amended statement of claim, no further amendments could be made without leave.
On 15 August 2014, Mineralogy filed its third further amended statement of claim, which did not include the Clause 6.3 Claims.
Between August 2014 and May 2015, Mineralogy made four applications for determination of preliminary issues. Three were dismissed by Chaney J on 28 May 2015. Mineralogy abandoned the other application.
On 4 September 2014, the CITIC defendants filed a defence to the third further amended statement of claim and a further amended counterclaim. The counterclaim sought declarations regarding the Clause 6.3 Claims. Mineralogy's third further amended statement of claim, to which this defence responded, did not include the Clause 6.3 Claims at the time.
On 24 October 2014, the CITIC defendants filed a defence to the third further amended statement of claim and a second further amended counterclaim. Again, the counterclaim sought declarations regarding the Clause 6.3 Claims in a context in which Mineralogy's third further amended statement of claim did not plead the Clause 6.3 Claims.

2015

On 14 April 2015, the CITIC defendants filed an amended defence to the third further amended statement of claim and third further amended counterclaim. The counterclaim, again, sought declarations regarding the Clause 6.3 Claims in a context where the third further amended statement of claim did not plead the Clause 6.3 Claims.
On 29 May 2015, the CITIC defendants filed a further amended defence to the third further amended statement of claim and a fourth further amended counterclaim in CIV 1808. The counterclaim, again, sought declarations regarding the Clause 6.3 Claims where Mineralogy was not pleading the Clause 6.3 Claims in its statement of claim.
In the period December 2015 to March 2016, Mineralogy filed an interlocutory application seeking mandatory injunctive orders for the payment of Royalty B. The application was dismissed by Tottle J.[57] Mineralogy appealed, and the Court of Appeal allowed the appeal and remitted the injunction application for a new hearing before the case manager.[58]

2016

[57] Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 8] [2015] WASC 473.

[58] Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105.

On 1 April 2016, Mineralogy filed a minute of proposed fourth further amended statement of claim (proposed 4FASOC), which incorporated the Clause 6.3 Claims, pursuant to orders made by Chaney J on 31 March 2016 granting Mineralogy leave to amend its statement of claim.
On 27 and 28 October 2016, the judge heard the remitted mandatory injunction application.
On 28 October 2016, Mineralogy wrote to the CITIC defendants' solicitors (Allens) concerning CIV 1808, stating its intention to 'file and serve a new and shortened statement of claim by the 16th November [2016] which will inter alia drop a number of claims'.[59] The letter stated that the parties should use the time before the next strategic conference to focus on what they believe are the main issues, suggesting that if the parties can reduce the issues and claims between them, then more court time would be freed up and the costs would be reduced.
[59] O'Donahoo affidavit, par 29; GB 124. Affidavit of Kane Christopher Jones affirmed 17 January 2017, filed in CIV 1808 of 2013 on 17 January 2017 as folio document 428, Annexure KCJ-04 (incorrectly listed in the index as Annexure KCJ-05).
On 1 November 2016, Mineralogy wrote to Allens in relation to its 'fourth amended statement of claim' in CIV 1808, stating that Mineralogy 'does not intend to press [the Clause 6.3 Claims]', and that this would be reflected in the new statement of claim which Mineralogy would serve (as foreshadowed in the 28 October 2016 letter). The letter stated that this decision would shorten the trial and that the decision had been made in the public interest.[60]
[60] O'Donahoo affidavit, par 30; GB 124. Affidavit of Kane Christopher Jones affirmed 17 January 2017, filed in CIV 1808 of 2013 on 17 January 2017 as folio document 428, Annexure KCJ-08.
On 1 November 2016, Allens wrote to Mineralogy requesting a copy of Mineralogy's proposed 'new and shortened statement of claim'.[61]
[61] O'Donahoo affidavit, par 32; GB 125. Affidavit of Kane Christopher Jones affirmed 17 January 2017, filed in CIV 1808 of 2013 on 17 January 2017 as folio document 428, Annexure KCJ-09.
On 2 November 2016, Mineralogy wrote to Allens attaching a copy of a letter from Mineralogy to CITIC, Sino and Korean.[62] The letter sought the CITIC defendants' consent to various forms of injunctive orders. The letter set out reasons for Mineralogy's request. One of those reasons was the notice given on 1 November 2016 by Mineralogy to Sino that Mineralogy had decided not to press its claims under cl 6.3 of the Agreements. The letter also referred to cl 30.6 of the Agreements, stating that Mineralogy reserved its rights to take any action available to it.
[62] O'Donahoo affidavit, par 31; GB 124 - 125. Affidavit of Kane Christopher Jones affirmed 17 January 2017, filed in CIV 1808 of 2013 on 17 January 2017 as folio document 428, Annexures KCJ‑10 and KCJ‑11.
On 7 November 2016, Mineralogy wrote to Allens stating that it intended to file an application for the determination of a preliminary point, being the construction of cl 8 of the Agreements (in relation to Royalty B).[63]
[63] O'Donahoo affidavit, par 33; GB 125. Affidavit of Kane Christopher Jones affirmed 17 January 2017, filed in CIV 1808 of 2013 on 17 January 2017 as folio document 428, Annexure KCJ-19.
On 8 November 2016, Mineralogy wrote to Allens concerning its foreshadowed application for the determination of a preliminary point, stating that Mineralogy's proposed amended statement of claim 'will include a claim under cl 8.2 and cl 8.6 of [the Agreements]'.[64]
[64] O'Donahoo affidavit, par 34; GB 125. Affidavit of Kane Christopher Jones affirmed 17 January 2017, filed in CIV 1808 of 2013 on 17 January 2017 as folio document 428, Annexure KCJ-23.
On 8 November 2016, Allens wrote to Mineralogy stating that it was not possible to consider Mineralogy's proposal for the hearing and determination of a preliminary point in the absence of Mineralogy's proposed amended pleading.[65]
[65] O'Donahoo affidavit, par 35; GB 125. Affidavit of Kane Christopher Jones affirmed 17 January 2017, filed in CIV 1808 of 2013 on 17 January 2017 as folio document 428, Annexure KCJ-20.
On 9 November 2016, Allens wrote to Mineralogy requesting a copy of the proposed amended pleading or, if that were unavailable, a complete statement of all of the claims that Mineralogy intended to withdraw, and a copy of the proposed preliminary question.[66]
[66] O'Donahoo affidavit, par 36; GB 126. Affidavit of Kane Christopher Jones affirmed 17 January 2017, filed in CIV 1808 of 2013 on 17 January 2017 as folio document 428, Annexure KCJ-25.
On 16 November 2016, Mineralogy wrote to Allens stating that the preliminary point to be determined concerned the proper construction of cl 3.2, cl 3.3, cl 8.1, cl 8.2 and cl 8.6 of the Agreements.[67]
[67] O'Donahoo affidavit, par 37; GB 126. Affidavit of Kane Christopher Jones affirmed 17 January 2017, filed in CIV 1808 of 2013 on 17 January 2017 as folio document 428, Annexure KCJ-36.
On 18 November 2016, Mineralogy wrote to the judge's associate in relation to CIV 1808, copied to Allens, stating that 'in the public interest to assist the court in setting an early trial date [Mineralogy] intends to reduce its claims by not pressing its claims for termination, repudiation [and the Clause 6.3 Claims]. [Mineralogy] will seek leave to file an amended statement of claim'.[68]
[68] O'Donahoo affidavit, par 39; GB 126.
On 28 November 2016, Mineralogy wrote to Allens setting out the matters that Mineralogy intended to be addressed as a preliminary point.[69]
[69] O'Donahoo affidavit, par 40; GB 126. Affidavit of Kane Christopher Jones affirmed 17 January 2017, filed in CIV 1808 of 2013 on 17 January 2017 as folio document 428, Annexure KCJ-46.
On 2 December 2016, Mineralogy wrote to Allens stating that the preliminary point could not be determined or dealt with until after delivery of the judge's decision on the remitted injunction application.[70]
[70] O'Donahoo affidavit, par 42; GB 126 - 127. Affidavit of Kane Christopher Jones affirmed 17 January 2017, filed in CIV 1808 of 2013 on 17 January 2017 as folio document 428, Annexure KCJ-74.
On 13 December 2016, Kenneth Martin J delivered his decision in the remitted injunction application in Mineralogy [No 13]. His Honour made mandatory interlocutory orders for the payment of Royalty B. In his reasons, his Honour indicated his view that such orders for payment should, in effect, be conditional on Mineralogy withdrawing any assertion that the Agreements had been terminated.[71]
[71] See, for example, Mineralogy [No 13] [223] ‑ [225].
On 13 December 2016, Mineralogy wrote to Allens attaching a copy of Mineralogy's proposed 5FASOC in CIV 1808. The letter stated, amongst other things, that (as previously foreshadowed) the amended pleading would no longer press the Clause 6.3 Claims. The letter stated that the amendment would substantially reduce the factual matters in dispute and that the issues had been narrowed considering the public interest in bringing the matter on for the hearing as expeditiously as possible. The letter estimated that the substantive hearing, based on this amended pleading, would go for two weeks. The letter sought the CITIC defendants' consent to the orders in the draft chamber summons attached to the letter.[72]
[72] O'Donahoo affidavit, par 44; GB 127. Affidavit of Ian Peter Scott O'Donahoo sworn 17 January 2017 in response to Plaintiff's chamber summons dated 21 December 2016, filed in CIV 1808 of 2013 on 19 January 2017, Annexure POD-3.
On 14 December 2016, Mineralogy filed an affidavit of Mr Palmer affirmed on 14 December 2016, which stated:[73]
[73] C Palmer affidavit affirmed 14 December 2016, pars 3 - 10, 33 - 40; GB 311 - 312, 314 - 315.
3.I have read the decision of [Kenneth] Martin J in [Mineralogy [No 13]] delivered on 13 December 2016.
4.At [229] of [Mineralogy [No 13]], [Kenneth] Martin J stated that the Court would afford Mineralogy the opportunity, should it wish to do so, to remove the claim for termination from its [4FASOC] and in the event of which, his Honour indicated he could see no reason why interlocutory injunctive orders in respect of the payment of sums on account of the Mineralogy Royalty to 30 June 2016 (at [230]) and ongoing on a quarterly basis (at [235]) should not be paid.
5.Since early November 2016, Mineralogy placed the [CITIC defendants] on notice of its intention to seek leave to file an amended statement of claim to, inter alia, remove the claim for termination. Mineralogy had indicated to the [CITIC defendants] that it would defer doing so until receipt of the above judgment.
6.Judgment having now been received, Mineralogy is grateful for the opportunity to proceed with an amendment to its application to, inter alia, formalise the orders in respect of the payment of the sums referred to in [218], [230] and [235] of his Honour's judgment.
7.Annexed hereto and marked CFP‑01 is a Chambers Summons:
(a)attaching a document titled 'Fifth Further Amended Statement of Claim' [5FASOC]; and
(b)proposing a series of orders that reflects, with one exception, [218] and following of the judgment of [Kenneth] Martin J, in particular with respect to the payment by Sino and Korean of the sums referred to in [218], [230] and [235] of his Honour's judgment.
8.I confirm as a director of Mineralogy and as a person duly authorised to make this affidavit on Mineralogy's behalf that it:
(a)unequivocally withdraws any claim that the [Agreements] have been terminated; and
(b)is ready, willing and able to perform its future and ongoing obligations under the [Agreements].
9.At [234] of the above judgment [Kenneth] Martin J indicated that he considered it may be appropriate for the matter to proceed to a preliminary determination of all issues relevant to [Royalty B]. Mineralogy['s] view is as the matter is approaching its fourth anniversary the proceedings should be set down for trial as soon as possible.
10.As I address further below, the [5FASOC] not only drops any claim for termination, but substantially narrows the matters in dispute, particularly those matters that may be factually intensive.
…
[5FASOC]
33.Even prior to receipt of the judgment of [Kenneth] Martin J [in Mineralogy [No 13]], Mineralogy had considered means by which the causes of action in the proceedings could be simplified and the public interest in bringing the matter on for trial could be achieved. Mineralogy has prepared the [5FASOC] to achieve these objectives.
34.The [5FASOC] no longer presses claims for:
(a)termination of the [Agreements];
(b)repudiation of the [Agreements];
(c)breach of clause 6.3 of the [Agreements]; or
(d)breach of the Standard of Work Provisions of the [Agreements].
35.Further, the scope of the claim for breach of the Legal Requirements has been reduced to what Mineralogy considers ought to be a matter of construction of the relevant Proposal documentation approved by the Minister under the State Agreement, with a corresponding claim for damages.
36.A claim for conversion of property is also made. Submissions to this effect were made by Senior Counsel for Mineralogy in the hearing before [Kenneth] Martin J. Mineralogy considers that argument to be simply the 'other side of the coin' of the principal dispute in these proceedings, whether [Royalty B] is payable.
37.The conversion claim is to the effect that in breaching the Conditions of Grant of the [Agreements], including inter alia the obligation to pay the Mineralogy Royalty, [Sino] and [Korean] have unlawfully converted (and continue to unlawfully convert) 'Magnetite Ore' extracted from the 'Mine Area' and any 'Iron Ore Concentrates' and 'Products' derived from the Magnetite Ore that has been extracted in purported reliance upon the [Agreements] (the words in quotation marks being defined in the [Agreements]).
38.The [5FASOC] also includes one new claim, the factual basis of which arose after the hearing of the matter before [Kenneth] Martin J and hence which could not have been agitated at that time. Mineralogy considered it appropriate to bring all relevant claims as part of these proceedings, however, if the Court indicated a preference otherwise, it would be comment to remove that claim from [5FASOC] and to file fresh proceedings in respect of that new claim.
39.Mineralogy has amended [5FASOC] to remove causes of action so that, inter alia:
(a)it is not necessary for [Mineralogy] to be given discovery by the [CITIC defendants], a process which the [CITIC defendants] advised at the strategic conference held on 12 October, 2016 would take in excess of 6 months;
(b)the issues in dispute in respect of which witnesses will be required to give evidence are significantly reduced, reducing Mineralogy's estimated time for trial to 2 weeks; and
(c)the opportunity for and prospects of settlement are hopefully enhanced.
40.On 9 November, 2016, Mineralogy wrote to the [CITIC defendants] explaining how the basis upon which it intended to amend its statement of claim. (emphasis added)

On 14 December 2016, there was a directions hearing, where the following exchange between counsel for Mineralogy and the judge occurred:[74]
[COUNSEL FOR MINERALOGY]: Your Honour, the orders we're seeking today are the ones that your Honour has identified. The basic position is that once we have filed an amended statement of claim, then we believe that some further programming orders can be made. The reason for that submission, your Honour, is that in the further amended statement of claim it is our hope not only to drop the termination claims but to narrow the dispute in question between the parties and attempt to eliminate what might otherwise be considered to be allegations involving lengthy factual disputes.
And, then, the proposal would be that we would seek the earliest possible trial date, because we believe that the court might be better able to accommodate us once it has a more narrow dispute. We're aware, from the reasons which your Honour gave, that your Honour has suggested that the parties should in good faith seek to advance a preliminary question in relation to the issues concerning [Royalty B].
Our proposal would see a narrowing of the issues such that we believe that the more efficient approach would be to have an early trial date on all matters. But, as I say, I accept, your Honour, on the current pleading, that the suggestion made by her Honour in your reasons appears sensible, because of the others [sic] matters that would necessarily expand the hearing date.
But if we are able, in addition to dropping termination claims, to narrow the issues in dispute, then a more efficient way of proceeding would be to have trial directions. And, of course, your Honour - of course - we are agreeable to mediation and mediation orders. It's a question of when they should or should not be made. There's no suggestion by not pressing those today that we are opposing that course, your Honour.
[THE JUDGE]: Yes. All right. I understand that. I think - as regards the observations that are made in the reasons concerning a preliminary issue concerning the determination of [Royalty B] issues, those remarks were made within the framework of the wider issues then live, and in fact still live, on the pleading.
But if the pleading is in fact to be truncated in terms of the issues, to, in effect, concentrate effectively on [Royalty B] and not much more, then effectively the same policy objective is being pursued, so I understand that. In terms of mediation, there was actually a chamber summons filed on the part of [Mineralogy], seeking orders for mediation.
I've just listed that formally this afternoon, just for mention. And we can talk about that later, but it seems to me at the moment the pressing items are giving effect to the reasons in terms of payments and then deciding what we're going to do about an amended statement of claim, particularly dealing with a excisement [sic] of the termination of the [Agreements]. After that, we can proceed to lesser tier issues, but they are the critical things at the moment I think. (emphasis added)
[74] Transcript of directions hearing on 14 December 2016, ts 1888 ‑ 1889; GB 319 - 320.
On 21 December 2016, Allens wrote to Mineralogy in relation to CIV 1808, seeking confirmation that, as a condition of obtaining any leave to amend its pleading, Mineralogy would not re‑agitate, in CIV 1808 or in any other proceeding, the claims that it had proposed to delete in CIV 1808 by its proposed 5FASOC.[75]
[75] O'Donahoo affidavit, par 48; GB 128. Affidavit of Ian Peter Scott O'Donahoo sworn 17 January 2017 in response to Plaintiff's chamber summons dated 21 December 2016, filed in CIV 1808 of 2013 on 19 January 2017, Annexure POD-14.
On 21 December 2016, Mineralogy filed a chamber summons in CIV 1808 for leave to amend the statement of claim in terms of the 5FASOC. The proposed pleading omitted the Clause 6.3 Claims.
On 21 December 2016, Mineralogy filed an affidavit of Mr Palmer, affirmed on 21 December 2016, which stated:[76]
[76] C Palmer affidavit affirmed 21 December 2016, pars 11 - 19, 26 - 31, 56; GB 323 - 326, 330.
11.I have read the decision of [Kenneth] Martin J in [Mineralogy [No 13]] delivered on 13 December 2016. (Judgment)
12.At [229] of his judgment, [Kenneth] Martin J stated that the Court would afford Mineralogy the opportunity, should it wish to do so, to remove the claim for termination from its [4FASOC] and in the event of which, his Honour indicated he could see no reason why interlocutory injunctive orders in respect of the payment of sums on account of the Mineralogy Royalty to 30 June 2016 (at [230]) and ongoing on a quarterly basis (at [235]) should not be paid.
13.Judgment having now been received, Mineralogy is grateful for the opportunity to proceed with an amendment to its application to, inter alia, formalise the orders in respect of the payment of the sums referred to in [218], [230] and [235] of his Honour's judgment.
14.Annexed hereto and marked CFP‑01 is a Chambers Summons: proposing a series of orders that reflects, with one exception, [218] and following of the judgment of [Kenneth] Martin J, in particular with respect to the payment by Sino and Korean of the sums referred to in [218], [230] and [235] of his Honour's judgment.
Ready, Willing and Able
15.I confirm as a director of Mineralogy and as a person duly authorised to make this affidavit on Mineralogy's behalf that, Mineralogy unequivocally withdraws any claim that the [Agreements] have been terminated; and confirms Mineralogy is ready, willing and able to perform its future and ongoing obligations under the [Agreements] as between [Mineralogy] and [Sino] and [Korean].
Preliminary Point v Trial Date
16.At [234] of the Judgment [Kenneth] Martin J indicated that he considered it may be appropriate for the matter to proceed to a preliminary determination of all issues relevant to [Royalty B]. Mineralogy's view is as the matter is approaching its fourth anniversary the proceedings should be set down for trial as soon as possible.
17.As I address further below, the proposed [5FASOC] not only drops any claim for termination, but substantially narrows the matters in dispute, particularly those matters that may be factually intensive. Mineralogy therefore considers that the Court, following review of the [5FASOC], may consider it more appropriate to list the matter for an expeditious trial date including mediation. Annexed hereto and marked CFP‑02 is a draft programming order to progress the matter to final hearing sought in CFP‑01.
18.Further, with respect to the proposal for a preliminary point regarding the calculation of [Royalty B], the [5FASOC] makes claims under the Mining Act 1978 (WA) for payment of the value of the Products and in equity.
19.Mineralogy therefore considers there will be no saving in time and cost in proceeding with a preliminary point at this stage, given the narrowed claims now pressed in 5FASOC and the fact that any determination of a preliminary point could still be subject to an appeal which will only further delay the final determination of these proceedings and extend the prejudice that Mineralogy and third parties are suffering.
…
26.Mineralogy has considered means by which the causes of action can be simplified, public interest issues relating to the implications of termination of the [Agreements] can be addressed, the steps required to ready the matter for trial be reduced and the time required for hearing be reduced. Mineralogy has prepared the 5FASOC to achieve these objectives.
27.Mineralogy's claims for repudiation and termination of the [Agreements] are no longer made[.] Mineralogy considers this decision is of great significance as it changes fundamental legal position as between the parties and increases the prospects of a negotiated settlement. If Mineralogy was to be successful in the claims in the current statement of Claim that the [CITIC defendants] repudiated the [Agreements] and Mineralogy had validly terminated the [Agreements], the consequences of termination of the [Agreements] would have been that the [CITIC defendants'] project would have to cease operations resulting in the loss of many jobs, the loss of significant benefits to the Western Australian and Australian economies, disruption of trade with and the supply of magnetite ore to China and a loss of royalties to the State. Mineralogy has adopted this approach to promote the public interest and to achieve a trial as soon as possible.
28.Mineralogy has removed and abandoned claims for the Minimum Royalty under clause 6.3 of the [Agreements]. And has removed and abandoned Mineralogy's extensive claims for breaches of clause 16 of the [Agreements] and the Standard of work claims. Mineralogy has also narrowed its claims for breaches by the [CITIC defendants] of Legal Requirements to just one statutory breach.
29.Mineralogy has amended its claim to remove causes of action so that:
(a)It is not necessary for [Mineralogy] to be given discovery by the [CITIC defendants], a process which the [CITIC defendants] advised at the strategic conference held on 12 October, 2016 would take in excess of 6 months;
(b)The issues in dispute in respect of which witnesses will be required to give evidence are minimal reducing the time for trial to 2 weeks;
(c)The opportunity for and prospects of settlement are enhanced.
30.On the 19th of December 2016 Mineralogy filed the Plaintiff's usual undertaking as to damages in accordance with the orders made by [Kenneth] Martin J on the 14th December 2016 annexed hereto and marked CFP‑07 is a true copy of the undertaking filed by Mineralogy.
31.The 5FASOC sets out the claims that Mineralogy will pursue against the [CITIC defendants]. The claims are all within time and involve the same matrix of facts and circumstances and should be tried together to best utilise the resources of the courts.
…
56.… Notwithstanding the prejudice Mineralogy has received by the court intervening to change the terms of the [Agreements] by unorthodox judgments as stated in the Judgement [sic] of Western Australian Court of Appeal Mineralogy['s] position is the proceeding needs to be heard as soon as possible. For this reason, Mineralogy, has abandoned and has not pressed many of its claims and reduced the scope of others in its 5FASOC. (emphasis added)
On 27 December 2016, Mineralogy filed a 'plaintiff's minute of orders' for leave to amend and further directions and orders. Leave to amend was sought in terms of the 5FASOC. The minute also proposed orders for two payments by Sino and Korean, each of an amount exceeding US$29.8 million.[77]
[77] GB 341 - 342.
On 28 December 2016, Mineralogy responded to Allens' letter dated 21 December 2016, refusing to consent to the terms of the orders proposed by Allens in that letter. Amongst other things, Mineralogy's letter dated 28 December 2016 stated:[78]
[78] O'Donahoo affidavit, par 50; GB 128. See GB 334, 339. Affidavit of Ian Peter Scott O'Donahoo sworn 17 January 2017 in response to Plaintiff's chamber summons dated 21 December 2016, filed in CIV 1808 of 2013 on 19 January 2017, Annexure POD-17.
The proceedings are now in their fourth year, much has changed during that period and it is only proper that Mineralogy has sought to include claims that relate to the matrix of facts as they occurred over the period. The fact that our client has made early drafts of the Fifth Amended Statement of Claim available to your clients as a courtesy evinces our client's willingness to assist your firm and clients in a positive manner. It should be clear the Fifth Statement of Claim that your clients can rely upon is the one which Mineralogy has filed in the Court and is seeking leave to amend.
…
For the Avoidance of Doubt
I refer to the Judgement [sic] of [Kenneth] Martin J on 13 December 2016 and the Affidavit of Clive Frederick Palmer sworn on 21 December 2016. Mineralogy has unequivocally withdrawn any claims that the [Agreements] have been terminated or repudiated. For the avoidance of any doubt Mineralogy advises that Mineralogy hereby unequivocally withdraws all claims that the [Agreements] have been terminated or [r]epudiated as set out in all pleadings in all actions and any proposed or foreshadowed actions between Mineralogy and your clients. Mineralogy withdraws all Termination Notices and Default Notices issued by Mineralogy to either Sino or Korean up until the date hereof.
The notices which have been withdrawn deal with matters in the past. It is important that the parties focus on the future as the [Agreements are] a long‑term agreement and each of the parties must recognise their obligations and be respectful of each other's rights under the [Agreements]. Your clients need to focus on performing the conditions of the contract so as there is no need for notices to be issued in the future. Mineralogy reserves its rights to issue further notices as is its contractual right if Mineralogy determines it is in Mineralogy's interest to do so. The Court cannot and will not rewrite the contract between the Parties.
Future Actions
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. Each of the parties has an obligation to act in 'Good Faith' towards each other. In line with their obligations to each other the parties need to concentrate on performing their respective obligations under the [Agreements].
Mineralogy does not consent to the orders proposed by your client. Please confirm your client will consent to the orders set out in our Chamber Summons amended to allow for a timetable in accordance with his Honour's proposed timetable. In that regard, Mineralogy attaches a new timetable for the trial dates and invites your firm to confer with Mineralogy in respect of the timetable and the matters set out in your firm's letter of 21 December 2016 and the matters advanced herein.
Please advise your firm's availability to confer on the matters set out in this letter and your firm's letter of 21 December 2016. Mineralogy can confer on 5 or 6 January 2017. (emphasis added)

9 - 12 January 2017

On 9 January 2017, Allens wrote to Mineralogy noting Mineralogy's refusal to consent to the orders proposed by the CITIC defendants and stating that the CITIC defendants did not oppose Mineralogy being given leave to discontinue certain claims in CIV 1808 on the condition that Mineralogy not be permitted to re‑agitate those claims in CIV 1808 or any other proceeding. The letter attached a proposed order, described as the 'Proposed Condition Order', in terms which provided that the CITIC defendants would seek for the orders proposed by Mineralogy to be conditioned upon (in general terms):[79]
(a)Mineralogy not asserting or claiming, directly or indirectly in any proceeding, that (1) any of the Project Agreements had been terminated, (2) Sino and Korean are required to suspend or cease their operations under the Project Agreements, or (3) Sino and Korean are not entitled to exercise any of their rights under the Project Agreements;
(b)Mineralogy not acting inconsistently with being ready, willing and able to perform all of its obligations under the Project Agreements; and
(c)Mineralogy withdrawing a force majeure notice and its threats to send letters out to employees of the CITIC defendants, and submitting to the registrar of the Personal Properties Securities Register a financing change statement.
[79] O'Donahoo affidavit, par 51; GB 129. See GB 352 - 353. Affidavit of Ian Peter Scott O'Donahoo sworn 17 January 2017 in response to Plaintiff's chamber summons dated 21 December 2016, filed in CIV 1808 of 2013 on 19 January 2017, Annexure POD-18.
The Proposed Condition Order did not include any reference to the abandonment of the Clause 6.3 Claims.
On 12 January 2017, Mineralogy wrote to Allens in relation to Allens' letter dated 9 January 2017 and the 'Proposed Condition Order'. Amongst other things, the letter stated:[80]
[80] O'Donahoo affidavit, par 54; GB 129 - 130. See GB 357 - 360. Affidavit of Ian Peter Scott O'Donahoo sworn 13 January 2017, filed in CIV 1808 of 2013 on 18 January 2017, Annexure POD-8; affidavit of Ian Peter Scott O'Donahoo sworn 17 January 2017 in response to Plaintiff's chamber summons dated 21 December 2016, filed in CIV 1808 of 2013 on 19 January 2017, Annexure POD-19.
Leave to amend
There is no identifiable relevant evidence which your clients would need to put on in respect of Mineralogy's application for leave to amend.
Mineralogy's application for leave to amend will be determined on whether its proposed claims are sustainable as a matter of law (which they are), not of fact. There is no evidentiary onus placed on your clients and no evidence filed by them going to matters of fact would be relevant to the question of leave to amend. Factual matters are left for the trial of this matter commencing on 14 June 2017. In any event, as is clear from the draft pleading, Mineralogy's case concerns construction of the [Agreements]; there are no areas of substantial factual dispute. (original emphasis)
Matters arising from the [Kenneth] Martin J Judgment
This aspect of the hearing concerns two matters:
(a)the second component of Mineralogy's mandatory injunction, being the payment of $59 million and ongoing payments of US$6 per DMT, and Mineralogy being ready, willing and able to perform the [Agreements]; [and]
(b)directions to the trial listed for June 2017.
…
You have raised 5 additional matters the CITIC [defendants] allege are relevant to Mineralogy demonstrating it is ready, willing and able to perform its obligations under the [Agreements] and Project Agreements:
1.Mineralogy not pursuing in the future claims withdrawn by the proposed [5FASOC];
2.Mineralogy withdrawing its threats to arrest ships used by [Sino] and [Korean] to ship iron ore concentrate; (which deals with the separate question of exports and the [Admiralty] Act)
3.Mineralogy submitted to the Registrar of the Personal Property Securities Register a financing change statement to end effective registration of the security interests with registration numbers 2016 11100029680 and 2016 11080050208;
4.Mineralogy withdrawing its Force Majeure notice dated 8 July 2015; under the State Agreement which is not the subject of [CIV 1808].
5.Making further payments subject to requirement for ready, willing and able to perform Project Agreements.
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 [5FASOC] against the [CITIC defendants] in [CIV 1808] or any other proceeding;
2.If the [CITIC defendants] make all payments to Mineralogy as foreshadowed in the [Kenneth] Martin J Judgment, Mineralogy will not until after final determination of [CIV 1808] or after 1 September 2017 apply to any court to arrest the [CITIC defendants'] ships.
3.If the [CITIC defendants] make all payments to Mineralogy as foreshadowed in the [Kenneth] Martin J Judgment, Mineralogy will not until after final determination of [CIV 1808] or after 1 September 2017 whichever is the earlier exercise any security over any ore mined by the [CITIC defendants] on the Mining Leases.
4.If the [CITIC defendants] comply with the terms of the [Agreements], Mineralogy will withdraw any force majeure in any agreement which relies on the [CITIC defendants'] non‑compliance with the [Agreements].
Further, Mineralogy withdraws all notices issued prior to the date hereof that require the [CITIC defendants] to vacate the Mining Leases or Project Area.
As to making the further payments subject to Mineralogy's continuing readiness, willingness and ability to perform the [Agreements] and Project Agreements, that is a matter for legal submissions. The matter is hypothetical. There is no evidentiary element to that controversy.
In view of the above, the scope for factual dispute and the necessity for your clients to file affidavit material is nearly non‑existent and there is no reason why such matters could not have been attended to in the time available if they were genuine matters.
…
Conclusion
For the reasons recorded above, we do not consider an adjournment is necessary or appropriate. Mineralogy regards your clients' actions as an abuse and breach of Good Faith.
Mineralogy will oppose any application to adjourn the hearing on 20 January 2017. We are otherwise preparing for the hearing of our chamber summons and your clients should do likewise and comply with the Orders of the Court. If your clients make any application please provide Mineralogy with adequate notice and the opportunity to appear. Please bring this letter to the attention of the Court. Mineralogy reserves its rights. (emphasis added)

In the discussion of these principles in George Fischer (Great Britain) Ltd v Multi Construction Ltd, Dexion Ltd,[288] a case in which the plaintiff shareholder, but not the company, had a cause of action against the defendant (and, thus, the shareholder's claim was permitted), the Court of Appeal of England and Wales did not draw any distinction between where the plaintiff shareholder's cause of action was in contract (as in that case) and where the shareholder may have a cause of action in, say, tort. Indeed, the Court of Appeal held that the principle to be derived from Prudential Assurance applies 'just as much in relation to damages for breach of contract as it does in tort'.[289]
[288] George Fischer (Great Britain) Ltd v Multi Construction Ltd, Dexion Ltd [1995] 1 BCLC 260.
[289] Prudential Assurance (267).
The 'reflective loss' principles were also applied in relation to claims in contract in Sutherland v GHR Accounting (No 3).[290] In that case, the plaintiff shareholder and the company both allegedly had claims in contract against the defendant. The plaintiff was the shareholder and controlling mind and will of a company (Q Company). The plaintiff had sought advice from accountants in relation to borrowings undertaken by Q Company from a bank. Q Company defaulted on the loan, went into liquidation, and was deregistered. The plaintiff subsequently brought proceedings against the accountants, alleging that they owed and breached duties to the plaintiff and Q Company to provide prudent financial advice and to exercise due care and skill. The claims alleged both breaches of contract and breaches of the general law duty of care. The loss claimed was, relevantly, the plaintiff's loss of income from Q Company. The judge applied the principles of reflective loss, as explained above, and struck out the plaintiff's pleading. However, his Honour gave leave to re‑plead, effectively on the basis that on the materials before the court, the plaintiff (who was self‑represented) might have had a claim other than for reflective loss in his capacity as guarantor and mortgagor in relation to the borrowings.
[290] Sutherland v GHR Accounting (No 3) [2017] NSWSC 373.
It is true that in 2002, the Full Court of the Federal Court in Harris referred to the 'unsettled state of the law in this area'.[291] However, the law has been accepted and settled since then by intermediate appellate courts in Queensland and New South Wales. The court in Harris also said that 'whatever the rule, it is concerned with the situation in which the relevant company has a cause of action arising out of the same facts as founding the shareholder's claim'.[292] If and insofar as that is said to be a relevant criterion, that criterion is satisfied in this case. Further, unlike in Harris,[293] in the present case, like in Thomas v D'Arcy,[294] the pleading makes the nature of the personal claim crystal clear. There can be no possible doubt that Mr Palmer's claimed loss is entirely reflective of Mineralogy's loss.
[291] Harris [35].
[292] Harris [36].
[293] Harris [36] - [39].
[294] Thomas v D'Arcy [21] - [22].
The 1995 New Zealand case of Christensen has been expressly not followed by the Queensland Court of Appeal in Thomas v D'Arcy,[295] by the House of Lords in Johnson,[296] and, by necessary implication, by the New South Wales Court of Appeal in Chen[297] and Ekes.[298] It is, with respect, inconsistent with the common law of Australia.
[295] Thomas v D'Arcy [21].
[296] Johnson (35 - 36) (Lord Bingham), (41) (Lord Goff), (55) (Lord Hutton), (65 - 66) (Lord Millett).
[297] Chen [26] - [51].
[298] Ekes [150] - [151].
Further, the decision in K & J Acquisitions concerned proceedings in which it was alleged that the company's claim was the primary claim, and that the shareholder's claim was in the alternative in the event that the company had no cause of action. In the present case, it is not suggested that Mineralogy has no cause of action under cl 11 of the FC Deed. Rather, Mr Palmer's claim proceeds on the basis that Mineralogy has a cause of action, but is precluded from suing on it, because to do so would constitute an abuse of the court's processes by Mineralogy.
The principles emerging from the authorities may be summarised as follows:
1.Where a company suffers loss caused by a breach of duty owed to it, only the company may sue in respect of that loss. No action lies at the suit of a shareholder to make good a diminution of the value of the shareholder's shareholding where that loss merely reflects the loss suffered by the company.[299]
2.This will be so even if the company has declined or failed to take action to recover the loss.[300]
3.If the company suffers loss, but has no cause of action to sue to recover that loss, a shareholder with a cause of action who suffers loss to the value of his shares may sue in respect of it.[301]
4.The reflective loss principle does not prevent a shareholder suing for a loss suffered from a breach of duty owed to him or her where the loss is separate and distinct from the loss suffered by the company.[302]
5.The principle extends to the case where both the company and the shareholder have a claim for breach of duty[303] or breach of contract which caused the loss.[304]
[299] Gould v Vaggelas (219 ‑ 220); Johnson v Gore Wood (35), (62); Ekes [150]; Thomas v D'Arcy [9], [11], [19], [21], [30], [37]; Central Coast Council v Norcross Pictorial Calendars [103] ‑ [104], [109].
[300] Gould v Vaggelas (219 - 220); Johnson v Gore Wood (35); Thomas v D'Arcy [7]; Central Coast Council v Norcross Pictorial Calendars [104].
[301] Johnson v Gore Wood (35); Thomas v D'Arcy [9]; Central Coast Council v Norcross Pictorial Calendars [104], [119].
[302] Gould v Vaggelas (220), (241), (257 ‑ 258); Johnson v Gore Wood (35), (62); Ekes [151]; Central Coast Council v Norcross Pictorial Calendars [104].
[303] Ekes [150], citing Johnson v Gore Wood (62).
[304] Sutherland v GHR Accounting (No 3) [2017] NSWSC 373.
The principle has been said to be 'driven by policy considerations'.[305] The rationale for the principle has been described as the prevention of double recovery, the application of the rule in Foss v Harbottle,[306] or the maintenance of the capital of a company. In Central Coast Council v Norcross Pictorial Calendars, Bathurst CJ suggested that the principle was based on the rule in Foss v Harbottle.[307]
[305] Thomas v D'Arcy [11]; Central Coast Council v Norcross Pictorial Calendars [115]; Johnson v Gore Wood (62).
[306] See the authorities collected by Bathurst CJ in Central Coast Council v Norcross Pictorial Calendars [103]; see also Thomas v D'Arcy [9] - [11].
[307] Central Coast Council v Norcross Pictorial Calendars [119].
We do not see, at least in the present context, a relevant distinction between, on the one hand, claims by each of the shareholder and company for an indemnity against loss, and, on the other hand, claims by each of the shareholder and the company for damages for breach of a tortious or contractual duty. In each case, the company's assets relevantly encompass the value of the chose in action, whatever that may be, and recovery by the shareholder on his or her claim would either diminish the company's assets to that extent, or result in double recovery against the defendant. The application of the reflective loss principle to cases where both the company and the shareholder have a cause of action for breach of tortious duty or contract demonstrates that, notwithstanding that the principle may have roots in the rule in Foss v Harbottle, it is not merely a standing issue and is not rendered inapplicable by the mere fact that the shareholder has a distinct cause of action. That being so, we do not accept Mr Palmer's submission that the fact that cl 11.5(c) gives him an independent right of indemnity takes his case outside of the reflective loss principle.
The result is that, in accordance with the policy of the law, any cause of action by Mr Palmer under cl 11.5(c) by way of indemnity could not, and would not, encompass a claim to recover the loss he suffered or incurred as a shareholder which is merely reflective of the loss suffered or incurred by Mineralogy against which Mineralogy is indemnified under cl 11.5(c) of the FC Deed. As already noted, the claim pleaded by Mr Palmer is wholly and unambiguously of that character. Also, as already noted, Mr Palmer's claim proceeds on the basis that Mineralogy has a cause of action (but is precluded from suing on it).
The next question is whether the fact that Mineralogy's claims against CITIC under cl 11.5(c) of the FC Deed and/or against Sino/Korean under cl 6.3 of the Agreements are precluded, as an abuse of process, alters that result. The answer, in our view, is no. This is not a case, of the character referred to in [268(3)] above, where the company had no cause of action. On the principles referred to above, Mr Palmer's claims as the shareholder of Mineralogy could no more be enhanced by Mineralogy's preclusion of its own claims as an abuse of process than where the enforcement of Mineralogy's rights were prevented by, eg, the operation of a limitation period, or where, more generally, in the exercise of his control over Mineralogy, Mr Palmer failed to cause it to make a claim or deliberately prevented Mineralogy from pursuing its claims against Sino/Korean under cl 6.3 of the Agreements and/or its rights of indemnity against CITIC under cl 11.5(c) of the FC Deed.[308]
[308] cf Gould (220); Thomas v D'Arcy [7]; Central Coast Council v Norcross Pictorial Calendars [104].
Mr Palmer's contention as to the construction of cl 11.6(b) of the FC Deed does not assist him. The plain meaning and effect of cl 11.6(b) is (relevantly) that CITIC's obligations under cl 11.5(c) are not discharged or affected by anything which, by operation of the general law, might otherwise have that result (including the particular matters specified between parentheses in cl 11.6(b) of the FC Deed). Clause 11.6 is of the character referred to in [252] above.
The court's inherent jurisdiction to control its own processes is not an aspect of the operation of the general law discharging or otherwise affecting guarantees and indemnities. The principles of abuse of process have been referred to in [159] ‑ [180] above. In addition, the following observations in Batistatos make it plain that the power to deal with an abuse of process involves the regulation of the court's own procedures in relation to causes of action or alleged causes of action before it:[309]
In Ridgeway v The Queen, Gaudron J explained:
'The powers to prevent an abuse of process have traditionally been seen as including a power to stay proceedings instituted for an improper purpose, as well as proceedings that are "frivolous, vexatious or oppressive". This notwithstanding, there is no very precise notion of what is vexatious or oppressive or what otherwise constitutes an abuse of process. Indeed, the courts have resisted, and even warned against, laying down hard and fast definitions in that regard. That is necessarily so. Abuse of process cannot be restricted to "defined and closed categories" because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case. That is not to say that the concept of "abuse of process" is at large or, indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose and it is clear that it extends to proceedings that are "seriously and unfairly burdensome, prejudicial or damaging" or "productive of serious and unjustified trouble and harassment".'
Earlier, in Rogers v The Queen, McHugh J observed:
'Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute.'
His Honour added:
'Many, perhaps the majority of, cases of abuse of procedure arise from the institution of proceedings. But any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the court's process.'
To that it should be added that the power to deal with procedural abuse extends to the exclusion of particular issues which are frivolous and vexatious. Further, the failure to take, as well as the taking of, procedural steps and other delay in the conduct of proceedings are capable of constituting an abuse of the process of the court. (emphasis added) (footnotes omitted)
[309] Batistatos [14] - [15].
We would understand the italicised reference in the preceding passage to encompass claims which fail to disclose a reasonably arguable cause of action.[310]
[310] As to which, see General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, 129.
There is no tenable argument that cl 11.6(b) of the FC Deed expressly or impliedly provides that CITIC is liable to indemnify Mr Palmer under cl 11.5(c) in circumstances where the pursuit by Mr Palmer of an indemnity claim under cl 11.5(c) itself constitutes an abuse of the court's processes, or where the claim fails to disclose a reasonably arguable cause of action.
In summary, because it claimed no more than the loss to Mr Palmer of the value of his (beneficial) shareholding in Mineralogy, simply reflecting the loss suffered by that company, Mr Palmer's claim in CIV 3129, as formulated and explained to the primary judge and in this court, disclosed no reasonably arguable cause of action. There is no plea, and no suggestion, that Mr Palmer has any separate and independent substantive loss claim.
The same result could be reached (although it is not necessary to do so for present purposes) by construing, in the broader legal context in which the FC Deed was entered into, the words 'any loss suffered … or incurred by [Mr Palmer]' in cl 11.5(c) as referring, relevantly, to any loss other than a loss merely reflective of the loss suffered or incurred by Mineralogy from the non‑performance by Sino and Korean of the cl 6.3 obligations in the Agreements.
Ordinarily, the conclusions in [277] above would sustain an order striking out the statement of claim and, in the absence of any suggestion that Mr Palmer has any separate and independent substantive loss claim, or any suggestion that Mineralogy seeks nominal damages for breach of cl 11.5(c), prima facie there would be no occasion to order leave to re‑plead. However, in the particular circumstances of this case, these conclusions, together with other matters outlined below, combine to sustain the further conclusion that Mr Palmer's claim should be permanently stayed as an abuse of process.
The starting point is that, as already found, Mineralogy's claim is an abuse of the processes of the court.
Two singular features of Mr Palmer's claim are of critical significance. First, Mr Palmer's claim is advanced contingently: it is advanced only if the court finds that Mineralogy is precluded from prosecuting its claim. Secondly, Mr Palmer's claim is, wholly and unambiguously, for his loss as the beneficial shareholder of Mineralogy, reflecting Mineralogy's loss. As already concluded, the reflective loss principle manifests the policy of the law to firmly preclude such a claim.
Thus, the objective effect of Mr Palmer's claim is to avoid the effect of the court's stay of the Mineralogy proceedings.
In this combination of circumstances, for the court to permit Mr Palmer to maintain proceedings that advance what is, in substance, nothing more than Mineralogy's claim would be to permit Mr Palmer to outflank the court's exercise of power to prevent the abuse of its processes by the institution and maintenance of Mineralogy's claim. In the circumstances, to so permit Mr Palmer to maintain his claim would serve to bring the administration of justice into disrepute in the sense explained in the outline of the principles concerning abuse of process.
The notice of contention should accordingly be upheld.
That is sufficient to require Mr Palmer's appeal to be dismissed. However, for completeness we will deal with the grounds of appeal.
If Mr Palmer's claim for an indemnity under cl 11.5 of the FC Deed disclosed no reasonably arguable cause of action, it could not be said that the claim could and should have been part of the litigation in CIV 1808. There could be no reasonable expectation that he would have run, in CIV 1808, a claim which disclosed no reasonable cause of action. It would be otherwise if it was assumed (contrary to the conclusion above) that Mr Palmer's claim under cl 11.5 of the FC Deed disclosed a reasonably arguable cause of action and, in particular, that it claimed loss distinct from his loss reflective of Mineralogy's loss. What follows in [287] ‑ [294] is written on that assumption.
Although CITIC was a party to CIV 1808, Mr Palmer was not. In that respect, Mr Palmer was unlike Mr Tyne and his entities in the Supreme Court proceedings in UBS. Mr Palmer's claim under cl 11.5 of the FC Deed was never a claim ventilated in CIV 1808. Correspondingly, that claim was not expressly or by necessary implication deleted, withdrawn or abandoned in CIV 1808 pursuant to the conduct referred to at [50] ‑ [99] above. Accordingly, the reasoning referred to at [181] ‑ [195] above has no direct application to Mr Palmer's claim under cl 11.5(c) of the FC Deed.
The question then becomes whether other considerations justified the conclusion that the pursuit of Mr Palmer's claims under cl 11.5 of the FC Deed constituted an abuse of procedures of the court.
At the outset, it should be observed that it would not be correct to reason that, having created the circumstances of the abuse by Mineralogy, Mr Palmer should be regarded as a 'miscreant' who should be 'punished' by a permanent stay of his proceedings.[311]
[311] Victoria International [20].
Where an individual plaintiff has sued a defendant and lost on the merits, and has subsequently brought proceedings by the plaintiff's company (of which the plaintiff was the directing mind and will) against the same defendant with respect to essentially the same issues, the subsequent proceedings in the name of the company may be permanently stayed as an abuse: Sheraz Pty Ltd v Vegas Enterprises Pty Ltd.[312] In that case, an individual, Mr Clifford, caused his trustee company (Sheraz) to acquire shares in another company (Vegas). Mr Clifford commenced proceedings in the Federal Court of Australia against Vegas and its directors in relation to alleged misleading or deceptive conduct. The action was dismissed. Thereafter, Mr Clifford caused Sheraz to bring its own proceedings against Vegas in the Supreme Court of Western Australia, again alleging essentially the same misleading or deceptive conduct by Vegas. The subsequent proceedings by Sheraz were dismissed by Master Sanderson as an abuse of process, and this court dismissed an appeal by Sheraz against that decision. The court found an abuse of process on the basis that any such proceedings by Sheraz could and should have been brought in the earlier Federal Court proceedings:[313]
In all the circumstances, the continuation of the Supreme Court action would plainly have been seriously and unfairly burdensome or unjustifiably oppressive to Vegas. Sheraz was the alter ego of Mr Clifford, and Mr Clifford at all material times controlled Sheraz. Sheraz's claim could and should have been litigated in the Federal Court in connection with, in the sense of at least immediately following, Mr Clifford's claims with appropriate orders concerning the commonality of evidence. The result would have been that all of the claims of Sheraz and Mr Clifford would have been heard and determined effectively at the one time and with minimal additional time, cost and expense. The additional time, cost and expense would have been insignificant compared with the time, cost and expense involved with the pursuit of the Supreme Court action.
[312] Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93.
[313] Sheraz [151].

However, the Sheraz decision is not analogous to the present case, as the substance of the Clause 6.3 Claims have never been determined on their merits through any entity associated with Mr Palmer.
There remains, more generally, the question of whether it was unreasonable for Mr Palmer not to apply, at or around the directions hearing on 20 January 2017, to be joined as a party to CIV 1808 to run a claim under cl 11 of the FC Deed. The following matters point to it not being unreasonable:
1.Mr Palmer had his own (assumed) reasonably arguable cause of action under the FC Deed.
2.CIV 1808 had been on foot for several years, and Mineralogy had effectively confined the issues in CIV 1808 by excluding the Clause 6.3 Claims.
3.The litigation by Mr Palmer of his claim under cl 11 of the FC Deed would have added weeks to a trial (through the incorporation of the litigation of the Clause 6.3 Claims).
4.Both sides in CIV 1808 (Mineralogy and the CITIC defendants) were (as the judge found) otherwise ready for an expedited trial on the confined issues in June 2017.
On the other hand, if Mr Palmer, who was not a party to CIV 1808, later commenced proceedings under cl 11 of the FC Deed in relation to the non‑performance of Sino/Korean's obligations under cl 6.3 of the Agreements, there might be the risk (looking at the matter prospectively as at 20 January 2017) that he might litigate afresh, in his personal action under cl 11.5 of the FC Deed, the proper construction and application of the Royalty B provisions in the event that Mineralogy received an unfavourable result in CIV 1808. If that were to occur, and if no estoppel arose,[314] it could 'give rise to the perception that the administration of justice is inefficient, careless of costs, and profligate in its application of public moneys'.[315] However, in the present context that matter has no material weight. In CIV 3129, Mr Palmer pleaded that the amounts payable under cl 6.3 of the Agreements (the 'Minimum Royalty') were as found by the primary judge in Mineralogy [No 16].[316] Accordingly, Mr Palmer's pleading proceeds on the basis of the findings in CIV 1808 in relation to the Royalty B component of his claim under cl 11 of the FC Deed. No duplication of resources is involved and there is no prospect of inconsistent decisions.
[314] It is unnecessary for present purposes to consider whether Mr Palmer would be estopped: cf Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33; (2010) 75 NSWLR 245 [131] ‑ [140].
[315] UBS [59].
[316] CIV 3129 statement of claim, pars 55 - 58; BB 88 - 89.
On the assumption referred to in [286] above, having regard to the matters in [286] ‑ [293] above, this could not be said to be an extreme or exceptional case, which required the court, as a matter of 'last resort',[317] to permanently stay Mr Palmer's claim for an indemnity under cl 11 of the FC Deed.
[317] Victoria International [21].
Turning then to the grounds of appeal, if the judge considered that Mr Palmer's action under cl 11.5 of the FC Deed in CIV 3129 ought to be stayed as an abuse of process by way of analogy with Mr Tyne in the circumstances in UBS, and based on the reasoning of the majority in UBS, his Honour would have been in error on the basis that he either misapprehended the principles or mischaracterised the facts. However, having regard to the matters in [271] ‑ [272], [277] and [280] ‑ [283] above, we are not persuaded that error is disclosed,[318] with the result that ground 1 fails. More fundamentally, ground 1 is overtaken by the success of the notice of contention. Nevertheless, a consequence of the failure of ground 1 is that Mr Palmer's assertion in ground 1 that, insofar as the judge found an abuse of process by Mr Palmer in his bringing of an indemnity claim under cl 11.5(c) in CIV 3129, the finding was not open, is not made out.
[318] House (505).
It is unnecessary to address ground 2.
Grounds 3, 4 and 5 concern the judge's finding that Mr Palmer's cause of action was untenable on the basis that it was 'causatively attributable, solely and exclusively, to the abuse of process conduct by Mineralogy which itself has been occasioned at the behest of Mr Palmer'.[319] It is not necessary to consider the question of whether a claim in respect of the indemnity under cl 11.5(c) of the FC Deed would sound in damages (and, if so, whether there would be issues of causation and remoteness) or would result in a claim in debt.[320] For present purposes, it is sufficient to observe that the primary decision, with respect, fails adequately to disclose his Honour's reasons as to why Mr Palmer would have no reasonably arguable cause of action under cl 11.5(c) of the FC Deed above and beyond the absence of a reasonable cause of action based on the reflective loss point. There needed to be, with respect, some analysis of the phrase 'in relation to' (a phrase ordinarily of considerable width)[321] in the context of a consideration of the proper construction of cl 11.5(c) as a whole and in the context of the FC Deed as a whole and an application of that analysis to the pleading in the statement of claim. Putting aside the reflective loss point, there needed to be some reasoning explaining why, if Mr Palmer proved that Sino/Korean had not performed their cl 6.3 obligations under the Agreements, the loss he suffered would not be 'in relation to' the failure by Sino/Korean to perform such obligations under the Agreements, even if Mineralogy's claim under cl 11.5(c) were itself precluded by abuse of process principles. For this reason, we would uphold ground 4 and, allied with it, ground 5. Contrary to the CITIC parties' submissions (see [245] above), the judge's reference at [186] of the primary decision does not, with respect, engage with Mineralogy's submissions on this point.
[319] Primary decision [215].
[320] See, for example, the discussion of the authorities by Professor J W Carter, 'Indemnities Against Breach of Contract', paper presented at The Banking and Financial Services Law Association 25th Annual Conference, Queenstown, July 2008; R Zakrewski, 'The Nature of a Claim on an Indemnity', (2006) 22 JCL 54; N D'Angelo, 'Indemnities and Guarantees: A Taxonomic Expedition', (2011) 27 JCL 35.
[321] O'Grady v Northern Queensland Co Ltd [1990] HCA 16; (1990) 169 CLR 356, 376: 'The prepositional phrase "in relation to" is indefinite. But, subject to any contrary indication derived from its context or drafting history, it requires no more than a relationship, whether direct or indirect, between two subject matters'.
As to ground 3, although Mr Palmer's claim disclosed no reasonably arguable cause of action on the basis that it was a claim for reflective loss, the judge's reasons did not deal with that point and did not otherwise explain why Mr Palmer would fail at the level of 'causation'. In the absence of reasoning by his Honour on that point, it is unnecessary and inappropriate to resolve ground 3.

Conclusion

It is unnecessary to decide whether leave is required. That is because even if leave were required, it would be appropriate to grant leave having regard to the significance of the issues raised in the context of the administration of justice, and the effect of the primary decision on the rights of the appellants.
The orders should be:
1.To the extent that leave is required, leave is granted in each appeal.
2.Mineralogy's appeal (CACV 27 of 2020) is dismissed.
3.In Mr Palmer's appeal (CACV 29 of 2020), the respondents' notice of contention is allowed.
4.Mr Palmer's appeal (CACV 29 of 2020) is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NF
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza
25 JUNE 2021

19. Striking out pleadings etc.

(1)The Court may at any stage of the proceedings, subject to subrule (3), order to be struck out or amended any pleading, or the indorsement of any writ in the action, or anything in any pleading or in the indorsement on the ground that -

(a)    it discloses no reasonable cause of action or defence, as the case may be; or
  …
  (d)    it is otherwise an abuse of the process of the Court,

and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

Order 16 r 1 of the RSC provides:

1. Application by defendant for summary judgment

(1)Any defendant to an action may within 21 days after appearance or at any later time by leave of the Court, apply to the Court for summary judgment, and the Court, if satisfied that the action is frivolous or vexatious, that the defendant has a good defence on the merits, or that the action should be disposed of summarily or without pleadings, may order -

(a)that judgment be entered for the defendant with or without costs[.]