Palmer v CITIC Ltd [No 12]

[2024] WASC 322

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   PALMER -v- CITIC LTD [No 12] [2024] WASC 322

CORAM:   LUNDBERG J

HEARD:   5 AUGUST 2024

DELIVERED          :   10 SEPTEMBER 2024

FILE NO/S:   CIV 2072 of 2017

BETWEEN:   CLIVE FREDERICK PALMER

First Plaintiff

MINERALOGY PTY LTD

Second Plaintiff

AND

CITIC LTD

First Defendant

SINO IRON PTY LTD

Second Defendant

KOREAN STEEL PTY LTD

Third Defendant

FILE NO/S:   CIV 1267 of 2018

BETWEEN:   MINERALOGY PTY LTD

Plaintiff

AND

CITIC LIMITED

First Defendant

SINO IRON PTY LTD

Second Defendant

KOREAN STEEL PTY LTD

Third Defendant

FILE NO/S:   CIV 2336 of 2023

BETWEEN:   SINO IRON PTY LTD

First Plaintiff

KOREAN STEEL PTY LTD

Second Plaintiff

CITIC LIMITED

Third Plaintiff

AND

MINERALOGY PTY LTD

First Defendant

STATE OF WESTERN AUSTRALIA

Second Defendant

FILE NO/S:   CIV 2425 of 2023

MINERALOGY PTY LTD

First Plaintiff

CLIVE FREDERICK PALMER

Second Plaintiff

AND

EX PARTE

HELEN TERESA DILLON

First Defendant

CHEN ZENG

Second Defendant

SINO IRON PTY LTD

Third Defendant

KOREAN STEEL PTY LTD

Fourth Defendant

CITIC LIMITED

Fifth Defendant

ALLENS (A FIRM)

Sixth Defendant

FBIS INTERNATIONAL ISSUES MANAGEMENT PTY LTD

Seventh Defendant

Catchwords:

Practice and procedure - Sequencing applications brought by the Mineralogy Parties in four actions of a complex nature - High degree of commonality as to the principal parties, written instruments and the pleaded issues across the actions - The applications seek directions to programme the actions to consecutive trials in 2025 with the Fulcrum Proceeding having priority - Alternative directions sought to hold concurrent trials of certain of the actions - Directions include orders as to splitting cases as to liability and quantum - Applications opposed by CITIC Parties and by FBIS - Whether power to make directions - Relevant considerations to which regard should be had - Case management considerations - Prospect of inconsistent findings in relation to certain allegations - Premature to reach final conclusions on listing of all trials - Orders to be made listing most urgent proceedings for trial in 2025 with final assessment as to concurrent or consecutive trials to be revisited once further matters are known - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 1 r 4A, O 1 r 4B, O 4A r 2(1),
O 4A r 5(2), O 4A r 5A(1), O 32 r 4

Result:

Orders made to list the 2023 MCP Proceeding for trial commencing in April 2025
Sequencing applications otherwise adjourned until early December 2024 for further consideration

Category:    B

Representation:

CIV 2072 of 2017

Counsel:

First Plaintiff	:	P J Dunning KC, H Cooper, S F Gaussen, & S Palaniappan
Second Plaintiff	:	P J Dunning KC, H Cooper, S F Gaussen, & S Palaniappan
First Defendant	:	S K Dharmananda SC & S B Nadilo
Second Defendant	:	S K Dharmananda SC & S B Nadilo
Third Defendant	:	S K Dharmananda SC & S B Nadilo

Solicitors:

First Plaintiff	:	Alexander Law
Second Plaintiff	:	Alexander Law
First Defendant	:	Allens
Second Defendant	:	Allens
Third Defendant	:	Allens

CIV 1267 of 2018

Counsel:

Plaintiff	:	P J Dunning KC, H Cooper, S F Gaussen, & S Palaniappan
First Defendant	:	S K Dharmananda SC & S B Nadilo
Second Defendant	:	S K Dharmananda SC & S B Nadilo
Third Defendant	:	S K Dharmananda SC & S B Nadilo

Solicitors:

Plaintiff	:	Alexander Law
First Defendant	:	Allens
Second Defendant	:	Allens
Third Defendant	:	Allens

CIV 2336 of 2023

Counsel:

First Plaintiff	:	J H Kirkwood SC & S B Nadilo
Second Plaintiff	:	J H Kirkwood SC & S B Nadilo
Third Plaintiff	:	J H Kirkwood SC & S B Nadilo
First Defendant	:	P Dunning KC, S Gaussen, H Cooper & S Palaniappan
Second Defendant	:	No appearance

Solicitors:

First Plaintiff	:	Herbert Smith Freehills
Second Plaintiff	:	Herbert Smith Freehills
Third Plaintiff	:	Herbert Smith Freehills
First Defendant	:	Robinson Nielsen Legal
Second Defendant	:	State Solicitor's Office

CIV 2425 of 2023

Counsel:

First Plaintiff	:	P J Dunning KC, H Cooper, S F Gaussen, & S Palaniappan
Second Plaintiff	:	P Dunning KC, H Cooper, S F Gaussen, & S Palaniappan
First Defendant	:	J H Kirkwood SC & S B Nadilo
Second Defendant	:	J H Kirkwood SC & S B Nadilo
Third Defendant	:	J H Kirkwood SC & S B Nadilo
Fourth Defendant	:	J H Kirkwood SC & S B Nadilo
Fifth Defendant	:	J H Kirkwood SC & S B Nadilo
Sixth Defendant	:	J H Kirkwood SC & S B Nadilo
Seventh Defendant	:	S D Majteles

Solicitors:

First Plaintiff	:	Alexander Law
Second Plaintiff	:	Alexander Law
First Defendant	:	Allens
Second Defendant	:	Allens
Third Defendant	:	Allens
Fourth Defendant	:	Allens
Fifth Defendant	:	Allens
Sixth Defendant	:	Allens
Seventh Defendant	:	HWL Ebsworth Lawyers

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

Blair v Curran [1939] HCA 23; (1939) 62 CLR 464

Cousins v Cousins (1948) 51 WALR 57

Epic Games, Inc v Apple Inc (Case Management) [2022] FCA 341

Espanol Holdings Pty Ltd v Banning [2000] WASC 192

GetSwift Limited v Webb [2021] FCAFC 26

Ghose v CX Reinsurance Company Ltd [2010] NSWSC 110

Grainger v Williams [2002] WASC 262

Humphries v Newport Quays Stage 2A Pty Ltd [2009] FCA 699

Lois Nominees Pty Ltd v QBE Insurance (Australia) Ltd [2011] WASC 208 [81]; (2011) 42 WAR 75

Moondancer Holdings Pty Ltd v Navarac Pty Ltd [2011] WASC 250

Moyle v Quarles as executor of the estate of Leslie Moyle [2024] WASC 17

Nelson v Thompson [2020] WASC 261

Norilya Minerals Pty Ltd v Easterday [2009] WASC 191

Palmer v CITIC Ltd [No 10] [2023] WASC 417

Palmer v CITIC Ltd [No 9] [2023] WASC 238

Saker v Creative Land Management Pty Ltd [2000] WASC 44

Sino Iron Pty Ltd v Mineralogy Pty Ltd [2019] WASCA 80 [410]; (2019) 55 WAR 89

Sino Iron Pty Ltd v Mineralogy Pty Ltd [2024] WASC 242

Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 15] [2023] WASC 56

UBS AG v Tyne [2018] HCA 45; (2018) 265 CLR 77

Walthamstow Pty Ltd v Caratti [2023] WASC 76

Table of Contents

A.       Introduction

B.        Orders sought on the applications

(1)          Mineralogy Parties' position

(2)          CITIC Parties' position

(3)          FBIS' position

C.       Relevant materials on the applications

(1)          Affidavit evidence

(2)          Submissions and other materials

D.       Relevant principles

(1)          Existence of the power

(2)          Exercise of the power

E.        The Cape Preston Proceedings

(1)          The Indemnity Proceedings

(a)    The pleadings

(b)   The parties

(c)    Splitting liability and quantum

(d)   Status of the proceedings

(2)          The 2023 MCP Proceeding

(a)    The pleadings

(b)   The parties

(c)    Cobby J's reasons

(d)   Status of the proceeding

(3)          The Fulcrum Proceeding

(a)    An overview

(b)   The parties

(c)    Status of the proceeding

F.        The parties' competing submissions

(1)          Mineralogy Parties

(2)          CITIC Parties

G.       Disposition

(1)          The 2023 MCP Proceeding requires swift resolution

(2)           The Fulcrum Proceeding is not urgent

(3)          The Fulcrum Proceeding will need to be re-assessed following the interlocutory hearing in October 2024

(4)          The Indemnity Proceedings are well behind schedule and should not be further delayed

(5)          The Indemnity Proceedings should not be split as to quantum

(6)          There is a high degree of commonality across the actions

(7)          The Fulcrum Allegations have already been the subject of findings by the Court

(8)          The risk of inconsistent findings is relevant but not an overriding imperative

(9)          The Fulcrum Proceeding should not be the lead action

(10)         A concurrent trial of all Cape Preston Proceedings would be unwieldy

H.       Conclusion

I.         Orders

ATTACHMENT A

LUNDBERG J:

A.     Introduction

1. These reasons concern applications brought in four actions seeking directions to programme the actions to trial in 2025, with various trial sequences and pathways proposed by the parties.  The applications are brought by way of the amended chamber summonses dated 19 July 2024 filed in each of the actions.

2. The four actions involve claims arising from the commercial relationship and dealings between Mr Palmer and his company Mineralogy Pty Ltd (the Mineralogy Parties), on the one hand, and CITIC Limited, Sino Iron Pty Ltd and Korean Steel Pty Ltd (the CITIC Parties) on the other hand, centred around a large-scale magnetite iron ore mine situated near Cape Preston, in the Pilbara region of this State.  For want of a better term, and to avoid any partisan nomenclature, I will collectively refer to the four actions as the Cape Preston Proceedings. 

3. The disputes between these protagonists have consumed the resources of this Court and the Court of Appeal over the course of the last decade, to a significant extent.  The claims advanced by the various parties are complex.  The amounts claimed are enormous, and the non-monetary relief sought in one of the actions is said to be of great significance for the orderly and profitable continuation of the principal iron ore mine. 

4. The relative sequencing of the Cape Preston Proceedings, and whether some of them should be heard consecutively or concurrently, are matters on which the parties cannot agree and which remain disputed.  The present applications were thus listed together to enable the question as to the sequencing of the actions to be heard by one Judge of this Court, noting that two of the actions are presently in Cobby J's list and two have been managed in my list.

5. The four actions are:

   (a)QNI Proceeding:  This is action CIV 2072 of 2017, which is the oldest of the four proceedings, having been commenced by the Mineralogy Parties in June 2017.

   (b)Palmer Petroleum Proceeding:  This is action CIV 1267 of 2018, commenced by the Mineralogy Parties in February 2018.

   Together the QNI Proceeding and the Palmer Petroleum Proceeding are referred to as the Indemnity Proceedings.[1]  These proceedings have been managed together in my list, and orders have previously been made that both actions be heard together at trial, by the same judge.  I refer to the order to this effect made by Kenneth Martin J on 14 September 2020.  There remain good grounds to continue with this approach, and no party is seeking to vary that order. 

   (c)2023 MCP Proceeding:  This is action CIV 2336 of 2023, commenced by the CITIC Parties on 27 November 2023.  This action needs to be distinguished from the 2017 MCP Proceeding heard at trial by Kenneth Martin J in 2022, which was the subject of lengthy reasons delivered by his Honour in March 2023.[2]  That decision is presently the subject of an appeal to the Court of Appeal which was heard over several days commencing on 12 August 2024 (which was after the hearing of these applications), with the Court having reserved its decision.[3]

   (d)Fulcrum Proceeding:  This is action CIV 2425 of 2023, which is the most recent of the actions filed, having been commenced by the Mineralogy Parties on 15 December 2023.

   [1] Which I have, in previous decisions, also referred to collectively as the FCD Proceedings. 

   [2] Being CIV 1915 of 2019, which was determined by Kenneth Martin J following a 33 day trial: Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 15] [2023] WASC 56.

   [3] CACV 35 of 2023, which is consolidated with CACV 37 of 2023.

6. As matters stand, none of these actions has been listed for trial. 

B.     Orders sought on the applications

1. As will be apparent from these reasons, it does a disservice to the applications to refer to them as 'sequencing applications', although it is a convenient designation.  In truth, the applications require a consideration of numerous interconnected issues including the priority of the actions inter se, the order in which the trials of the actions should be listed, whether any of the actions should be heard at a concurrent trial, whether an appeal against a decision at trial of any of the actions may impact the hearing of any of the other actions, and so on.

(1)     Mineralogy Parties' position

1. There are in effect four types of orders sought by the Mineralogy Parties, namely:

   (a)     orders as to the sequencing of the trials;

   (b)orders to facilitate the use of evidence at trial across multiple actions (in the event concurrent trials are ordered);

   (c)     orders to split quantum issues; and

   (d)     programming directions to progress the matters to trial. 

   I will explain each of these in some more detail below.

2. As to the sequencing aspect, the Mineralogy Parties seek orders to the effect outlined below in relation to the hearing and determination of the Cape Preston Proceedings.

3. The starting position of the Mineralogy Parties is that there should be consecutive primary trials, with the Fulcrum Proceeding, including any appeals therefrom, being heard and determined first, followed by the Indemnity Proceedings, and then lastly the 2023 MCP Proceeding. 

4. In the alternative, the Mineralogy Parties propose that the Fulcrum Proceeding be heard concurrently with the Indemnity Proceedings (including any appeals therefrom), prior to the 2023 MCP Proceeding being heard and determined.

5. In the further alternative, the Mineralogy Parties propose that the Fulcrum Proceeding be heard concurrently with both the Indemnity Proceedings and the 2023 MCP Proceeding.  That is, an outcome by which all four of the actions be heard at one concurrent trial.

6. As to the use of the evidence and the effect of findings, the Mineralogy Parties seek orders that, in the event of a concurrent hearing, evidence in one action is to be evidence in the others, and the parties are to be bound in the other proceedings by the findings made in one of the proceedings (subject, in all instances, to relevance).

7. As to the splitting of quantum issues, the Mineralogy Parties propose that each of the Cape Preston Proceedings move forward on the basis of a separation of liability and quantum, pursuant to the power to do so in O 32 r 4 of the Rules of the Supreme Court 1971 (WA) (RSC).  This would be achieved, it is said, by ordering that various issues be separated, to be tried (if necessary) subsequent to a determination by consecutive trials of all other issues in the Cape Preston Proceedings in the sequence which I have identified above.

8. For example, in the 2023 MCP Proceeding, the quantification of any loss or damage suffered by the plaintiffs that is the subject of [95] of the Statement of Claim filed on 27 November 2023, would be separately tried.  Additionally, in the Fulcrum Proceeding, the quantification of any loss or damage suffered by the plaintiffs and associated relief that is the subject of [140] and [141] of the Third Amended Statement of Claim filed on 28 June 2024, would be separately tried.  I will return below to the proposal to carve‑out quantum issues in the Indemnity Proceedings.

9. As to the programming directions, the parties have provided detailed minutes which program the actions to trial along particular pathways.

(2)     CITIC Parties' position

1. The CITIC Parties oppose the sequencing orders sought by the Mineralogy Parties.  The CITIC Parties emphasise in their submissions the present 'precarious position' of the Sino Iron Project and the finding of Cobby J that the present mining operations will be constrained within the next year or two.[4]  This is said to be an important part of the context of these disputes between the parties. 

   [4] Sino Iron Pty Ltd v Mineralogy Pty Ltd [2024] WASC 242 [161] (Cobby J).

2. The approach favoured by the CITIC Parties is:[5]

   (a) for the 2023 MCP Proceeding and the Indemnity Proceedings to be case managed together by the same judge towards a trial being heard between April and June 2025; and

   (b) for the sequencing applications to be adjourned, with liberty to apply at an appropriate juncture.

   [5] CITIC submissions [3] and [32].

1. In essence, the CITIC Parties submit there is an urgency associated with the determination of the 2023 MCP Proceeding and 'a real public interest' in the proceeding being resolved as soon as possible.  The CITIC Parties draw on the interlocutory findings of Cobby J in this regard.  

2. The CITIC Parties say they are ready to bring the 2023 MCP Proceeding and the Indemnity Proceedings on for trial in the first part of 2025, as was contemplated by Cobby J.  It is submitted by the CITIC Parties that the Court should take steps to facilitate what is necessary to bring those matters to final hearing with a series of fixed milestones in each proceeding.

3. The CITIC Parties then assert that the Fulcrum Proceeding, in its present state, 'is not fit for trial and indeed may never reach trial' and the Court 'should not countenance the deployment of the proceeding to impede the progress of the 2023 MCP Proceeding to trial'.[6]

(3)     FBIS' position

[6] CITIC submissions [5].

1. FBIS International Issues Management Pty Ltd (FBIS) is named as the seventh defendant to the Fulcrum Proceeding.  It is a contractor to the CITIC Parties.  It is not a party to the other Cape Preston Proceedings.  FBIS emphasised in its submissions that it had limited knowledge of the nature and status of the other actions.[7] 

   [7] FBIS' submissions [7] and [8].

2. FBIS has applied, together with the CITIC Parties, for orders that the Fulcrum Proceeding be summarily dismissed as against FBIS, alternatively, that certain paragraphs that contain the claims against it be struck out with the consequence that judgment be entered in its favour.[8] 

   [8] FBIS' submissions [4].

3. The essential position adopted by FBIS in response to the Mineralogy Parties' sequencing application was to oppose the making of any orders which would delay the determination of its interlocutory application in the Fulcrum Proceeding.  FBIS also resists the making of any orders which would require FBIS to take steps (and thereby incur additional costs) in the Fulcrum Proceeding prior to the determination of that application.[9]

   [9] FBIS' submissions [9].

4. FBIS addressed the Court on the scenario that it remained an active party following the interlocutory applications listed for October 2024.  In that event, FBIS' position is that orders should not be made that might result in any inordinate delay to the final hearing of the Fulcrum Proceeding, or that would otherwise increase FBIS' costs or expose FBIS to any additional costs if an adverse costs order was made, relative to the Fulcrum Proceeding being otherwise heard and determined in the usual course.[10]

   [10] FBIS' submissions [10].

C.     Relevant materials on the applications

(1)     Affidavit evidence

1. The sequencing applications were supported by the affidavit sworn by a solicitor for the Mineralogy Parties, Ms Robinson, dated 13 April 2024 (filed in CIV 2336 of 2023).  That affidavit retraces the procedural steps in the various pieces of litigation but does not depose to any additional facts or evidence relevant to the applications.

2. At the commencement of the hearing, the Mineralogy Parties sought to rely on an affidavit sworn that morning by a practitioner acting for those parties, Mr Sameh Iskander (the Iskander Affidavit).  The Iskander Affidavit was the subject of objection, which I indicated should be held over to assess whether the objection required resolution by the Court.[11]  Communications between the Court and the parties were exchanged following the hearing to clarify the status of the affidavit.  Ultimately, there was no objection to the Court having regard to Attachments SMI‑4, SMI-6 and SMI-7 of the Iskander Affidavit.[12]  Other than those attachments, I have put the balance of the Iskander Affidavit to one side. [13] 

   [11] ts 22 - 28 (5 August 2024).

   [12] Emails from the solicitors for the Mineralogy Parties sent on 5 August 2024 and 29 August 2024.

   [13] Relatedly, I have put to one side the contentious email from FBIS' solicitors which formed part of the correspondence concerning the status of the Iskander Affidavit.  See the email from the solicitors for FBIS sent on 7 August 2024.

1. The CITIC Parties did not file any fresh affidavit evidence in opposition to the applications, but relied upon the affidavit of Robert Bruce Goodwin sworn 15 February 2024, filed in the 2023 MCP Proceeding.  Mr Goodwin is an engineer engaged by CITIC Pacific Mining Management Pty Ltd (CITIC Pacific), with some 40 years' experience in the resources sector in Australia.  CITIC Pacific is the vehicle through which Sino Iron and Korean Steel operate the Sino Iron Project.  I note that Mr Goodwin also gave evidence at trial in the 2017 MCP Proceeding on behalf of the CITIC Parties.

2. I have had regard to Mr Goodwin's affidavit in assessing the present applications.  In substance, Mr Goodwin deposes to the size, complexity and status of the Sino Iron mine, as well as the asserted urgency surrounding the fresh continuation plans for the mine.

(2)     Submissions and other materials

1. The parties filed detailed written submissions in relation to the applications.  I have reviewed  the primary submissions of the Mineralogy Parties dated 19 July 2024, and their reply submissions dated 2 August 2024.  I have also reviewed the submissions filed by the CITIC Parties[14] and by FBIS, both dated 26 July 2024.

   [14] The CITIC submissions are said to have been filed on behalf of the third, fourth and fifth defendants to the Fulcrum Proceeding, which is Sino Iron, Korean Steel and CITIC Limited, not on behalf of Ms Dillon, Mr Zeng, or Allens.  I do not understand anything turns on this point.

2. Finally, I received an index of documents to which the parties seemed largely content for the Court to refer in relation to the applications.[15]  The index included various documents filed by the parties in each of the Cape Preston Proceedings, including the pleadings in each action.

   [15] Index of documents dated 2 August 2024.

D.     Relevant principles

(1)     Existence of the power

1. There was no dispute between the parties as to whether the Court has power to make orders of the type sought by the Mineralogy Parties.  That power exists as a matter of the Court's inherent jurisdiction to control its own processes and procedures. 

2. The power can also be found in the express power to make case management directions found in O 4A r 2(1), when read with O 4A r 5(2) and r 5A(1) RSC.[16] 

(2)     Exercise of the power

[16] Norilya Minerals Pty Ltd v Easterday [2009] WASC 191 [65] (Le Miere J); Moondancer Holdings Pty Ltd v Navarac Pty Ltd [2011] WASC 250 [3] (Allanson J); and Nelson v Thompson [2020] WASC 261 [18] (Smith J).

1. The exercise of these powers must be guided by the goal and objects in O 1 r 4A and O 1 r4B RSC. The goal identified is the elimination of delay beyond what is essential to the fair and just determination of issues. The objects variously include the efficient disposition of the business of the Court, maximising the efficient use of available judicial and administrative resources and facilitating the timely disposal of business. The importance of these objects in the context of the exercising the related power to consolidate actions was recognised by the Court of Appeal in Sino Iron Pty Ltd v Mineralogy Pty Ltd.[17]

   [17] Sino Iron Pty Ltd v Mineralogy Pty Ltd [2019] WASCA 80 [410]; (2019) 55 WAR 89 (Buss P, Murphy and Beech JJA).

2. As the principles which have been developed to guide the exercise of the power to order that separate actions be jointly heard, those principles exhibit strong themes which are common to the principles applicable to the consolidation of actions.  So much was recognised by Austin J in Ghose v CX Reinsurance Company Ltd.[18]  His Honour was there referring to the observations of Wolff J (as his Honour then was) in this Court in Cousins v Cousins:[19]

   In my opinion, consolidation is desirable and should be allowed where, as here, the issues are substantially the same, and the evidence is to all intents and purposes identical.  I would, however, hesitate to lay down any inflexible rule.  Consolidation is intended to save time and expense, as well as to avoid the awkward consequences of contrary findings on the same set of facts.  Because it cannot be shown to have been done before in a like instance, it does not follow that the course of procedure which was ordered is not a proper one.

   [18] Ghose v CX Reinsurance Company Ltd [2010] NSWSC 110 [27] (Ghose).

   [19] Cousins v Cousins (1948) 51 WALR 57, 60.

3. Austin J went on to explain that the essence of Wolff J's observations, as his Honour understood them, was to make it clear that the Court's 'essential task is to work out pragmatically whether the most efficient course consistent with the requirements of fairness would be consolidation, a joint hearing, immediately sequential hearings, entirely separate hearings, or something else (such as determination of separate questions prior to or after the hearing of the remainder of the proceedings).'[20]

   [20] Ghose [27].

4. Austin J continued:[21]

   A pragmatic approach requires close attention to the nature of the claims in each set of proceedings and the likely course of the litigation if the proceedings are consolidated or jointly heard, compared with the course of litigation if the proceedings remain separate. A pragmatic approach involves the Court bringing to bear its experience in the conduct of hearings and case management, taking into account such matters as the potential savings of time and expense of one outcome compared with the other, and also the basic imperative that every litigant is entitled to a fair opportunity to present his or her case to the Court. I was referred to s 56(1) of the Civil Procedure Act 2005 (NSW), but in my view the articulation of the overriding objective of facilitating the just, quick and cheap resolution of the real dispute between the parties simply confirms the approach to be taken to such matters as consolidation or joint hearing of proceedings.

   [21] Ghose [27].

5. The authorities identified and discussed by Austin J reveal a flexible approach may be taken to the structuring and programming of separate actions, not obstructed by matters of mere form.[22]

   [22] Ghose [28].

6. It is convenient at this juncture to explore the factors that have been identified by courts as relevant when exercising the discretion to determine a consolidation application or a joint hearing application.  A number of such factors were identified by Besanko J in Humphries v Newport Quays Stage 2A Pty Ltd.[23]  His Honour, in that case, was considering whether eight separate proceedings, which each raised broadly similar issues, should be heard together.  The relevant power under consideration was O 29 r 5 of the Federal Court Rules.  Ultimately, Besanko J declined to order that the actions be heard together.  In exercising the discretion in this manner, his Honour identified several factors which provide useful guidance.[24] 

   [23] Humphries v Newport Quays Stage 2A Pty Ltd [2009] FCA 699 [11] (Humphries).  See also, on this point, Moondancer Holdings Pty Ltd v Navarac Pty Ltd [6] - [7] (Allanson J); Espanol Holdings Pty Ltd v Banning [2000] WASC 192 [4] (Sanderson M); and Nelson v Thompson [20] (Smith J).

   [24] Humphries [11].

7. Those factors include considerations as to the overlap between the proceedings, namely whether the proceedings are broadly of a similar nature, whether there are issues of fact and law common to each proceeding, and whether the witnesses (lay and expert) in one proceeding be witnesses in one or more of the other proceedings. 

8. Allied to these 'overlap' issues, his Honour recognised the need to consider whether there would be a substantial saving of time if the proceedings are tried at the same time, compared with each proceeding being tried separately, and whether such an order would create difficulties in terms of trial management, complexity of procedural issues and difficulties in determining cross-admissibility of evidence.

9. As to broader considerations, his Honour noted the relevance of the prospect of multiple appeals with substantial delays if the proceedings were not tried at the same time.  Additionally, practical considerations were identified by his Honour, such as whether one proceeding is further advanced in terms of preparation for trial than the others, and whether there are parties to one or some only of the proceedings who will be inconvenienced if all of the proceedings are tried at the same time.

10. As the parties noted in their submissions, in both Walthamstow Pty Ltd v Caratti[25] and Moyle v Quarles as executor of the estate of Leslie Moyle,[26] I examined the power of the Court to order that the trial of multiple actions be heard together.  In the course of surveying the authorities on the issue, I referred to the factors summarised by Beech J (as his Honour then was) sitting in this Court in Lois Nominees Pty Ltd v QBE Insurance (Australia) Ltd,[27] which his Honour regarded as providing a useful guide in exercising the discretion to order that multiple actions be heard together.  Those factors, which coincide to a large degree with the factors described by Besanko J, are as follows:

    (a) whether there are common questions of law or fact or a common transaction or series of transactions, of sufficient importance which renders it desirable that the whole of the matters should be disposed of at the same time;

    (b) whether it is convenient to hear the actions together, including whether it will prevent a multiplicity of actions and ensure savings of time and cost;

    (c) whether the court is satisfied it is unlikely to result in unfairness to any party, or to prejudice a party's ability to conduct their case;

    (d) whether it will be conducive to a just resolution of the issues; and

    (e) whether there are any relevant practical matters which may make it inexpedient to adopt this course.  

    [25] Walthamstow Pty Ltd v Caratti [2023] WASC 76.

    [26] Moyle v Quarles as executor of the estate of Leslie Moyle [2024] WASC 17.

    [27] Lois Nominees Pty Ltd v QBE Insurance (Australia) Ltd [2011] WASC 208 [81]; (2011) 42 WAR 75 (Lois Nominees).  See also Sanderson M in Saker v Creative Land Management Pty Ltd [2000] WASC 44 [2].

11. Returning to Austin J's analysis in Ghose, his Honour ultimately declined to order that a joint hearing be set, preferring to wait for further steps in the actions to be taken including the filing of evidence.[28]  In reaching this view, Austin J addressed the risk of inconsistent findings, concluding that:

    [95] If substantially similar questions have to be resolved in three sets of proceedings, with substantially similar evidence adduced separately on three occasions, there will be a risk of conflicting decisions on questions of fact.  That risk could be avoided by ordering a joint hearing before a single judge.  But it is correctly pointed out on behalf of Mr Ghose that the risk of inconsistent findings is one of the factors to be weighed up by the Court in exercising its discretion on an application for a joint hearing. Eliminating every possibility of inconsistent findings is not an overriding imperative.

    [96] In their reply submissions the Insurers contended that while the avoidance of inconsistent findings may be one of a number of factors that the Court will consider, the importance of this factor cannot be overstated, and in an applications such as this it should be treated as a significant or even determinative factor.  They cite no fewer than eight cases to support these propositions.  But the cases do not say more, in my view, than that this is an important matter. I have done my best to take it into account but I believe, in the circumstances of this case, that other factors outweigh it.  (emphasis added)

    [28] Ghose [77] and [98].

12. The parties have, in their submissions, raised the prospect of both a concurrent trial and consecutive trials.  It is appropriate to make a brief observation on the difference between such trials, and the implications.  Some reference to the decision of the Full Federal Court in GetSwift Limited v Webb[29] is apposite for this purpose. 

    [29] GetSwift Limited v Webb [2021] FCAFC 26 (Middleton, McKerracher and Jagot JJ) (GetSwift).

13. In GetSwift, the primary judge had concluded that he was properly able to hear the trial of a continuous disclosure class action proceeding and the trial of civil penalty proceedings brought by the regulator, connected with the same entity and which largely traversed the same allegations.  Those trials were to be heard consecutively.  The primary judge, after a careful consideration of the competing issues, concluded he should not disqualify himself from hearing the class action proceeding. 

14. The Full Court ultimately came to the view that the primary judge should have disqualified himself.  On this point, the Court held:[30]

    [3]…In our view, the primary judge failed (in the circumstances confronting him) to appreciate or take into account the hypothetical observer’s understanding that whilst a judge has an ability to discard irrelevant information, the ‘human frailty’ of the decision maker and the subconscious effect the extraneous information might have in influencing the primary judge’s final decisions nevertheless continue to be material.

    [4]We should say at the outset that the primary judge carefully considered the various issues in deciding not to disqualify himself.  He appreciated the “unusual need for caution” (J [48]), and in fact gave leave to appeal appreciating that the decision he made gave rise to issues of some general importance.  However, this appeal shows that it may be more prudent for an independent mind (or minds) to consider disqualification applications on some occasions.  This approach may assist to promote confidence in the legal system, which after all is a key rationale for the apprehended bias rule.  As the primary judge understood, despite any countervailing issue of public policy and case management, if “the law requires disqualification then so be it” (J [52]).

    [5]The primary judge was properly and selflessly motivated by a desire to achieve great economies if one docket judge could case manage and hear both regulatory proceedings and a class action when they involve consideration of the same underlying facts.  The primary judge was mindful of the circumstance where the trial judge in Kirby v Centro Properties Ltd (No 2) [2011] FCA 1144; (2011) 202 FCR 439 (‘Centro (No 2)’) disqualified himself from hearing the class action after delivery of his judgment in the regulatory proceeding, a circumstance the primary judge wanted to avoid. The fact that the primary judge was concerned that he would find himself in the position of the trial judge in Centro (No 2) says something about the gravity of his concern.

    [30] GetSwift [3] - [5].

15. As part of its analysis, the Full Federal Court examined the differences between the holding of concurrent and consecutive trials, with a particular focus on the prospect of a reasonable apprehension of bias being found.  The Full Court observed that in 'a concurrent trial, the evidence is generally the same in both proceedings (albeit that some limited evidence may not be admissible as against a particular party), and, accordingly, the concern raised in [that] appeal would be unlikely to arise'.[31]  The Full Court then considered the submission that there were sufficient institutional protections in place 'to ensure that consecutive trials do not carry the posited risk of a judge departing from the judicial oath'.[32]  These included the obligation to accord procedural fairness, the usual public and professional scrutiny which is the rationale of the open court principle, the duty to give reasons including the requirement to refer to material evidence and make findings about material issues, and the right to a full appellate rehearing.[33]

    [31] GetSwift [57].

    [32] GetSwift [58].

    [33] GetSwift [58].

16. The Full Court accepted there were institutional protections that guard against the risk of a reasonable apprehension of bias and which might be imputed to the reasonable fair-minded lay observer.  However, their Honours concluded that 'these matters neither avert the risk of a reasonable apprehension of bias nor the inconvenience of the interested parties being left to the cost and burden of an appellate process to cure error'.[34]

    [34] GetSwift [60].

17. Finally, as the contradictor's submissions introduced a consideration of case management principles, the Full Court addressed the relevance of such matters.  The submission advanced by the contradictor, as recorded by the Court, was as follows:[35]

    The absolutist approach is myopic in its focus on only one aspect of justice: the perceived purity of having a fresh judge deal with each separate manifestation of the same controversy.  The absolutist approach ignores other fundamental normative priorities, for example: avoiding undue delay, considerations of efficiency and cost, and avoiding inconsistent outcomes on the same or similar questions.

    [35] GetSwift [61].

18. The Full Court did not accept this submission. The Court held that 'the principle of impartiality will override any case management consideration', and '[w]hilst a pragmatic or cost-benefit approach to the work of a judge in both managing cases and making decisions is sometimes to be encouraged, it must be tempered by the rule of law and the importance of upholding confidence in the administration of justice'.[36]

    [36] GetSwift [62].

19. I propose to apply the foregoing principles to the determination of these sequencing applications.  It is first convenient to summarise the primary allegations in each of the Cape Preston Proceedings, and then identify the key submissions advanced by the parties, before turning to explain how I propose to dispose of the applications.

E.     The Cape Preston Proceedings

(1)     The Indemnity Proceedings

(a)     The pleadings

1. The QNI Proceeding and the Palmer Petroleum Proceeding have both been on foot for many years.  They were commenced by the Mineralogy Parties seeking substantial amounts by way of monetary relief from the CITIC parties.  The amount presently claimed in the QNI Proceeding is $1.8 billion and the amount presently claimed in the Palmer Petroleum Proceeding is $2.67 billion.  The Mineralogy Parties claim pursuant to contractual indemnities in cl 11.5(c) of the Fortescue Coordination Deed (FCD), for the alleged diminution in the value of certain shareholdings or the alleged loss of a commercial opportunity to sell certain shareholdings. 

2. In the QNI Proceeding, the losses are alleged to have been precipitated by the deprivation of working capital for Queensland Nickel Pty Ltd, the then manager of the joint venture conducting the nickel and cobalt product export business primarily from the Yabulu Refinery in Townsville, Queensland.

3. In the Palmer Petroleum Proceeding, the losses are alleged to have been precipitated by the winding up of Palmer Petroleum Pty Ltd and subsequent cancellation of its registered petroleum prospecting licenses in Papua New Guinea.

4. In each of the Indemnity Proceedings, the Mineralogy Parties' case is that if the CITIC Parties had paid the royalty component B payments (the RCB payments) on time,[37] none of these losses would have materialised.

   [37] Which was the subject of Kenneth Martin J's decision in Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 6] [2017] WASC 340 (confirmed on appeal).

5. In both proceedings, the CITIC Parties plead that the Mineralogy Parties are Anshun estopped from prosecuting the claims or alternatively the claims amount to abuses of process.[38]  These are said to be complete defences to the claims as pleaded by the Mineralogy Parties. 

   [38] QNI Proceeding, Amended Substituted Defence [80] - [86]; Palmer Petroleum Proceeding, Amended Substituted Defence [69] - [73].

6. In response to these defences, the Mineralogy Parties have filed reply pleadings in both actions which largely set out the 'Fulcrum Allegations' under the broad heading 'Disentitling conduct of the Defendants'.[39]  Further matters connected with the 'Fulcrum Purposes' are also pleaded in the replies.[40]  There is a significant overlap and commonality between the 'Fulcrum Allegations' and 'Fulcrum Purposes' matters pleaded in the Mineralogy Parties' replies in both of the Indemnity Proceedings, and the core allegations pleaded by the Mineralogy Parties in the Fulcrum Proceeding, which I will further explain below.  The 'Fulcrum Allegations' pleaded in the replies in the Indemnity Proceedings are also 'picked up' by the Mineralogy Parties' defence in the 2023 MCP Proceedings.

(b)     The parties

[39] QNI Proceeding, Reply to the Substituted Defence [41] - [70]; Palmer Petroleum Proceeding, Reply to the Substituted Defence [37] - [66].

[40] QNI Proceeding, Reply to the Substituted Defence [71], [81], [82] - [99]; Palmer Petroleum Proceeding, Reply to the Substituted Defence [67], [77], 78] - [94].

1. The only parties to the Indemnity Proceedings are the Mineralogy Parties and the CITIC parties.

(c)     Splitting liability and quantum

1. The Mineralogy Parties have proposed that the quantum issues in the Indemnity Proceedings be split from the liability issues, with the former to be determined at a separate trial if necessary. 

2. In the QNI Proceeding, the following issues would be separately tried: the value of the Yabulu Refinery and the extent of any diminution in its value, as well as the extent of any consequential diminution in the value of the shares and shareholdings, and the value of the lost opportunity, that are the subject of [48] to [49A] of the Seventh Amended Statement of Claim filed on 23 April 2024.

3. In the Palmer Petroleum Proceeding, the following issues would be separately tried: the value of Palmer Petroleum and Blaxcell and the extent of any diminution in their value, as well as the extent of any consequential diminution in the value of the shares and shareholding in Palmer Petroleum and Blaxcell, and the value of the lost opportunity, that are the subject of [42] to [43] of the Fourth Amended Statement of Claim filed on 23 April 2024.

4. The raising of this issue, within the present applications, is quite troubling.  I say that because the question whether quantum and liability issues in these actions should be split has already occupied the attention of the Court on two prior occasions.  Orders were made by Kenneth Martin J on 14 September 2020 to split the quantum issues, so that they would be tried separately.  Then, some years later, the CITIC Parties sought to unify the issues in the action and in effect undo the separate trial orders previously made, a position to which the Mineralogy Parties ultimately consented.  I accordingly made orders to unify the matters for trial in each action: see Palmer v CITIC Ltd [No 9].[41]

   [41] Palmer v CITIC Ltd [No 9] [2023] WASC 238.

5. Now, the Mineralogy Parties seek orders to fragment the cases, again. 

6. This cycle of interlocutory applications, which
   Mr Dharmananda SC likened to a Nietzschean loop of endless repetition and recurrence, is highly unsatisfactory.  The Court has power to vary its previous interlocutory orders, of course.  But that power has limits.  I do not propose to accede to this order. 

(d)     Status of the proceedings

1. The Indemnity Proceedings are the furthest advanced of all the actions, on my assessment.  The two actions have been on foot for some years and I have been managing them since early 2023. 

2. More than a year ago, the Court informed the parties that the Court could accommodate a trial of these actions in the second half of 2024.  The plaintiffs, the Mineralogy Parties, sought a trial listing with a commencement date in October 2024. 

3. At the strategic conference in July 2023, senior counsel for the Mineralogy Parties indicated a desire on the part of his clients to bring these Indemnity Proceedings to trial as quickly as possible, in order to bring the matters to a resolution.[42] This was reflected in the orders proposed by the Mineralogy Parties at that strategic conference, which included a proposal for a 9-week trial to be set for October 2024.[43] During that strategic conference, I indicated the Court had availability to accommodate such a trial.[44]

   [42] Indemnity Proceedings, ts 847.

   [43] Indemnity Proceedings, Mineralogy minute of proposed orders dated 27 July 2023, [17].

   [44] Indemnity Proceedings, ts 849.

4. In its position paper for the strategic conference, the CITIC Parties put forward two pathways to progress the matters to trial.[45]  The pathways were the subject of submissions from the parties.  Both alternatives envisaged a trial commencing in October or November 2024.[46]

   [45] Indemnity Proceedings, CITIC Position Paper for Strategic Conference dated 21 July 2023, [17] ‑ [19].

   [46] Indemnity Proceedings, CITIC Position Paper for Strategic Conference dated 21 July 2023, Attachment A.

5. I thus had an expectation in mid-2023 that the proceedings would be ready for trial by the second half of 2024.  That timetable has slipped, although no sworn explanation for that slippage has been forthcoming from the Mineralogy Parties, who were, as I have said, actively seeking an early trial of the actions.

6. As the case manager of the Indemnity Proceedings, I included exhortations in my reasons on an interlocutory issue, which were published in November 2023, for the Mineralogy Parties 'to expedite preparation of their lay evidence and expert evidence to ensure the case can move more rapidly...to trial': Palmer v CITIC Ltd [No 10].[47] 

   [47] Palmer v CITIC Ltd [No 10] [2023] WASC 417 [84].

7. So far as I can assess it, the previously expressed desire on the part of the Mineralogy Parties to bring these matters to trial had begun to evaporate in early 2024.  In fact, by the time the matter was heard for directions on 26 March 2024, the potential for a trial in the latter half of 2024 had all but been extinguished.[48]

   [48] Indemnity Proceedings, ts 881.

8. It is regrettable that the Court's expectation that these two actions would be ready for trial by now has not been realised.

9. To be clear, my previous observations as case manager did not touch upon the relative timing of the Indemnity Proceedings in the context of the other Cape Preston Proceedings.  Indeed, those comments were made before either of the 2023 MCP Proceeding or the Fulcrum Proceeding had been filed.  Rather, my observations were directed at moving the Indemnity Proceedings forward, consistent with the discussion I had with counsel for the parties at the strategic conference held in mid-2023.[49]

   [49] Indemnity Proceedings, ts 847 - 849.

10. As to the outstanding pleadings and discovery issues, the latest round of pleadings in the Indemnity Proceedings concluded on 1 June 2024 and, immediately following the hearing of the sequencing applications on 5 August 2024, I heard several interlocutory applications in the Indemnity Proceedings.  At the hearing of those applications on 6 August 2024, orders were sought by the parties as to further and better discovery of existing categories, the addition of new discovery categories, to discharge parties from certain discovery categories, to vary an earlier order excusing parties from a duty of discovery, and to strike out aspects of the defences. I will shortly deliver separate reasons disposing of those applications.

11. My present assessment as the case manager of the Indemnity Proceedings is that, with disciplined case management from this point, both actions can be ready for trial by around April 2025.

(2)     The 2023 MCP Proceeding

(a)     The pleadings

1. In the 2023 MCP Proceeding, the CITIC Parties seek orders compelling Mineralogy to submit to the State the '2023 MCPs', being a set of mine continuation proposals.  The proceeding largely seeks non-monetary relief which is said to require a relatively urgent determination.  These are fresh proposals, not to be confused with the '2017 MCPs' which were the subject of the earlier proceedings before Kenneth Martin J, which are currently the subject of an appeal to the Court of Appeal.

2. Mineralogy applied to temporarily stay the 2023 MCP Proceeding pending the above appeal.  In addition, the CITIC Parties applied to strike out aspects of Mineralogy's defence and to expedite the proceeding to trial.  Those applications were heard by Cobby J.[50]

   [50] Sino Iron Pty Ltd v Mineralogy Pty Ltd (Cobby J).

3. On the applications before me, senior counsel for the CITIC Parties in the 2023 MCP Proceeding, Mr Kirkwood SC, summarised the status of the project, and the significance of the relief sought in that proceeding, in the following terms:[51]

   … there is, up at Cape Preston, a real live operating project.  It has provided employment and income for approximately 3000 full-time positions, income which flows to the workforces, families and communities.  It had, to the end of last calendar year, generated royalties for the State of Western Australia of nearly A$1 billion, at a rate of approximately A$45 million per quarter.  And as has been found by Martin J in earlier proceedings, decided between these parties, it is a project that the CITIC parties have invested more than US$12 billion to develop.  It is a fully integrated operation for the mining, processing and export of magnetite.  The importance of magnetite to the future industrial development of this state is notorious.  The project operates under a State agreement.  It cannot continue to operate without the submission by Mr Palmer’s company, Mineralogy, jointly with Sino and Korean, of further proposals to the State and the approval of those proposals by the State under that agreement.

   And that is, relevantly, because, to continue mining and processing operations, it is necessary to expand the areas approved for the mine pit, waste rock dumps and tailing storage facility.  These constraints, imposed by the existing approved proposals, are already having a present and damaging impact on this project.  Among other things, the mine pit is now so deep and so narrow that the rate at which the project can mine and, therefore, process ore will be one-third lower this calendar year than last calendar year.

   And that is because the limited space within the mine pit limits the rate at which activities necessary for mining can be carried out, including drilling, blasting, scraping, loading, hauling, dewatering – they are all competing for the same limited space.  That present reduction has a flow-on impact on the project’s workforce and the income and royalties generated by this project.  That impact will only worsen as the mine pit gets even deeper and narrower, further reducing the rate of mining and production to the point where it becomes uneconomic and, ultimately, physically impossible to continue mining operations.  

   Further, even if the project were to continue operating at those reduced rates, within the next few years, the project’s tailings storage facility would be full, making it physically impossible to continue processing ore.  As your Honour would appreciate, Sino and Korean have provided State agreement proposals to Mineralogy to enable the project to continue operating for a time, the 2023 MCPs.  Those proposals involve no new tenure, avoiding the issues which arose in the last MCP proceeding.

   Mineralogy has refused to submit them.  The CITIC parties have been forced to bring a proceeding in this court, seeking relief in the nature of specific performance or mandatory injunctive relief to compel Mineralogy to do so.  The CITIC parties sought that that proceeding be expedited, based on proper material and a full hearing before [Cobby J]. And [Cobby J] accepted that they are urgent – our learned friends say “reasonably urgent” but, in our submission, “reasonably urgent” still means urgent – and considered that they can and should be brought to trial either later this year or early next year, along with the FCD indemnity proceedings.  To that end, as your Honour will have seen from our submissions, the CITIC parties have proposed that the 2023 MCP and FCD indemnity proceedings be heard between April and June next year. And to achieve that in the 2023 MCP proceedings, the CITIC parties have proposed timetabling orders which seek to bring that proceeding to trial in the first part of that period.

   [51] ts 53 - 55.

4. The defence filed by the Mineralogy Parties requires some explication, as it pleads matters which are elsewhere raised in the Cape Preston Proceedings.  The defence relevantly pleads at [1], in answer to the whole of the CITIC Parties' claims:

   (a)at the time of commencement of the proceeding and at all material times thereafter:

   (i)Sino Iron was in breach of the Sino MRSLA;

   (ii)Korean Steel was in breach of the Korean MRSLA;

   (iii)CITIC, Korean Steel and Sino Iron were in breach of the FCD,

   in that:

   (b)by reason of any, or any combination, of the allegations in paragraphs 37 to 99 inclusive of the substituted reply to the substituted defence filed 6 March 2024 (as amended from time to time) of the plaintiffs in Supreme Court of Western Australia Proceeding CIV24252072/20232017, Sino Iron, Korean Steel and CITIC breached (or one or some of them):

   (i)clause 27(b) of the Sino MRSLA and Korean MRSLA as the allegations constituted acts or the contemplation of acts that adversely affected the interests of Mineralogy in the Project Area;

   (ii)clause 37.4 of the Sino MRSLA and Korean MRSLA, as the conduct alleged therein was a failure to act in good faith towards Mineralogy in relation to the performance of the Sino MRSLA and the Korean MRSLA;

   (iiA)clause 11.5(c) of the FCD, as CITIC has not indemnified Mineralogy against loss it has suffered or incurred in relation to:

   (A)Sino Iron's and Korean Steel's failures to perform their obligations in clauses 27(b) and 37.4 of the Sino MRSLA and Korean MRSLA; or

   (B)CITIC's failure to cause Sino Iron and Korean Steel to so perform,

   includingbecause:

   (iii)by operation of clause 25 of the FCD, the obligations of CITIC under the FCD are joint and several with Sino Iron and Korean Steel and are liable and responsible for the other's obligations under the FCD.  A breach by CITIC of the FCD is a breach by Sino Iron and Korean Steel;

   (iv)the conduct of the agents of Sino Iron, Korean Steel and CITIC as alleged therein were the conduct of Sino Iron, Korean Steel and CITIC pursuant to clause 1.6 of the MRSLAs;

   (c)[deleted];

   (d)by reason of any, or any combination, of the allegations in Supreme Court of Western Australia Proceeding CIV2072/2017, Sino Iron, Korean Steel and CITIC were in breach of clause 11.5 of the FCD;

   (e)by reason of any, or any combination, of the allegations in Supreme Court of Western Australia Proceeding CIV1267/2018, Sino Iron, Korean Steel and CITIC were in breach of clause 11.5 of the FCD;

   (eA)...;

   (f)the breaches were serious and of essential terms of the respective instruments;

   (g)further or alternatively, the breaches were of interdependent obligations in the respective instruments, in that:

   (i)the carrying out or participating in, Mining Operations for mining and extracting Magnetite Ore from the Mine Area (as defined in the MRSLAs) under clause 3.2(c) of the Sino MRSLA and the Korean MRSLA relied on by the plaintiff at paragraph 31 of the statement of claim, is dependent on, and interdependent with, clauses 27(b), 37.4 and the implied obligation of cooperation of the MRSLAs because it:

   (A)constitutes relevant acts that would adversely affect the interest of Mineralogy in the Project Area or in any property, license or title, to which Mineralogy is the beneficial or legal owner under clause 27(b) of the MRSLAs;

   (B)constitutes the performance of the MRSLAs in which Sino Iron, Korean Steel and CITIC must act in good faith towards Mineralogy under clause 37.4 of the MRSLAs;

   (C)encompassed by the mutual obligations under the implied obligation of cooperation pleaded at paragraph 32 of the statement of claim;

   (D)is expressly granted subject to the balance of the Sino MRSLA and the Korean MRSLA;

   (ii)the obtaining of Government Approvals and the assistance of Mineralogy in obtaining Government Approvals under clause 15.1 of the of the Sino MRSLA and the Korean MRSLA relied on by the plaintiff at paragraph 31 of the statement of claim is are dependent on, and interdependent with, clauses 27(b), 37.4 and the implied obligation of cooperation of the MRSLAs because the Government Approvals:

   (A)constitute relevant acts that would adversely affect the interest of Mineralogy in the Project Area or in any property, license or title, to which Mineralogy is the beneficial or legal owner under clause 27(b) of the MRSLAs;

   (B)constitute the performance of the MRSLAs in which Sino Iron, Korean Steel and CITIC must act in good faith towards Mineralogy under clause 37.4 of the MRSLAs;

   (C)are encompassed by the mutual obligations under the implied obligation of cooperation pleaded at paragraph 32 of the statement of claim;

   (D)are Legal Requirements compliance with which, and subject to which, Mineralogy grants a Mining Right and Site Lease;

   (iii)pursuant to clause 25 of the FCD, the obligations and liabilities of Sino Iron, Korean Steel and CITIC under the Sino MRSLA, Korean MRSLA and FCD are joint and several and each is liable and responsible for the others' obligations;

   (iv)further or alternatively, clause 4.1(b) of the FCD is dependent on and interdependent with clause 11.5 of the FCD because:

   (A)the indemnity and guarantee under clause 11.5 is expressly granted by CITIC in consideration for Mineralogy granting the right under clause 4.1(b);

   (B)the indemnity and guarantee under clause 11.5 is an essential term of the FCD and specific performance of clause 4.1(b) would not be granted which while the plaintiffs are in breach of it;

   (C)it is encompassed by the mutual obligations under the implied obligation of cooperation pleaded at paragraph 34 of the statement of claim.

   (h)the breaches were matters to which Mineralogy was entitled to have regard in considering the 2023 MCPs;

   (i)by reason of the said breaches, Sino Iron, Korean Steel and CITIC:

   (i)are not able to establish an element of the causes of action pleaded in the statement of claim;

   Particulars

   (a)the plaintiffs are not able to establish that they were ready and willing to perform the MRSLAs and FCD at the commencement of the proceeding;

   (b)the plaintiffs are not able to establish that they were not in breach of essential terms of the MRSLAs and FCD at the times of the alleged requests and conduct pleaded in the statement of claim;

   (c)the plaintiffs are not able to establish an obligation on Mineralogy to perform at all times material to this proceeding the alleged terms of the MRSLAs, FCD, Direct Agreement, Takeover Agreements and State Agreement;

   (ii)were and are precluded from instituting proceedings for specific performance of the Sino MRSLA, Korean Steel MRSLA, State Agreement and FCD;

   (j)Sino Iron, Korean Steel and CITIC are disentitled from the relief sought in the claim;

   (k)[deleted].

5. As can be seen from the foregoing, the pleader has incorporated in [1(b)] the various allegations pleaded at [37] - [99] of the Mineralogy Parties' reply in the QNI Proceeding.  Those pleas are of the 'Fulcrum Allegations', in essence, which form part of the disentitling conduct on the part of the CITIC Parties.  The pleader has also incorporated in [1(d)] and [1(e)] the allegations which are to be found generally in the QNI Proceeding and the Palmer Petroleum Proceeding. 

6. By reason of the pleas at [1(h)] and at [76(f)] of the amended defence, the Mineralogy Parties plead that they were entitled, in considering whether to agree to submit the 2023 MCPs to the Minister, to have regard to the breach allegations pleaded in, among other paragraphs, [1(b)], [1(d)] and [1(e)].  The Mineralogy Parties also plead an alleged failure on the part of the CITIC parties to:[52]

   …demonstrate any willingness to negotiate in good faith for terms on which measures could be proposed to the State to enable the continued operation of the Sino Iron Project for the life of the mine

   [52] 2023 MCP Proceeding, Amended Defence [64(c)] and [76(bA)].

7. On 3 July 2024, Cobby J refused to temporarily stay the 2023 MCP Proceeding pending the appeal, refused to strike out aspects of Mineralogy's defence, and declined to expedite the proceeding in the manner sought by the CITIC Parties.  I will return to the detail of his Honour's reasons below.  The CITIC Parties subsequently filed their reply pleading on 10 July 2024.

(b)     The parties

1. The Mineralogy Parties and the CITIC Parties are parties to the 2023 MCP Proceeding.

2. In addition, the State of Western Australia is named as the second defendant in its capacity as a party to the Iron Ore Processing (Mineralogy Pty Ltd) Agreement, a State agreement ratified by the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Act 2002 (WA). The State did not take an active part in these applications.

(c)     Cobby J's reasons

1. All parties made reference to the previous observations of Cobby J as to the future programming of the actions or some of them: Sino Iron Pty Ltd v Mineralogy Pty Ltd.[53]  As explained below, I do not consider those previous observations are determinative of the present applications, nor were they intended to be.

   [53] Sino Iron Pty Ltd v Mineralogy Pty Ltd [171] - [177] (Cobby J).

2. The relevant portions of his Honour's reasons read as follows:

   The CITIC parties' application for expedition of these proceedings

   [158]Following Mineralogy's filing its application for these proceedings to be stayed, the CITIC parties formally applied for their expedition by way of chamber summons.

   [159]In a sense, that application is unnecessary, because the matter has already been admitted to the court's Commercial and Managed Cases List.  The pace at which the action proceeds is accordingly subject to control by the judge managing the proceedings.

   [160]Having said that, I accept that there is a need to ensure that these proceedings are determined with reasonable urgency, although the position is complicated by the dismissal of the CITIC parties' strike out application.

   [161]I accept Mr Goodwin's evidence to the effect that the present mining operations will be constrained within the next year or two by the inability to store the waste rock produced from mining operations and tailings produced by the concentration process. Given that the existing mine continuation proposals were approved in January 2010 and were intended to provide for five years of operation, with the first ore being shipped in 2013, it is not surprising that there is now a need to have the State approve new mine continuation plans.

   [162]On the evidence, essentially all steps to prolong the operation of the mine have either already been taken, or are in the process of being taken.

   [163]I also accept Mr Goodwin's evidence to the effect that it will take approximately two and a half years from the time that the 2023 MCPs are approved by the Minister, assuming that is what occurs, to obtain remaining government approvals and to construct the necessary additional mine infrastructure in order to continue mining operations.

   [164]In my view, that means that the mine, all other things being equal, is likely to cease operations within the next few years.

   [165]Mineralogy contends that the CITIC parties are principally concerned with their mining operations becoming unprofitable, as opposed to being unable to physically continue mining operations, such that the situation is not as urgent as claimed.

   [166]Assuming that is correct, I cannot see why it is in anyone's interest, including Mineralogy, to delay the resolution of these proceedings.  The CITIC parties contend, and Mineralogy did not appear to seriously contest, that a reduction in mining operations or their cessation will have a substantial impact on the number of people employed at the mine, which presently comprises approximately 3,000 people, and in the royalties payable to the State.

   [167]In my view, those considerations favour the court taking steps to reduce the time the Project may operate at a reduced capacity.  I consider that there is a real public interest in the ongoing disputes between these parties regarding the submission of new mine continuation plans to the Minister being resolved as soon as possible.

   [168]Further, the court presently has the resources to determine the FCD Proceedings and this action in the near term, without necessarily delaying the determination of other litigants' claims.

   [169]I therefore consider it is unnecessary to reach a final determination in relation to the CITIC parties' application for expedition, because I consider that the same outcome can be achieved through case management in the court's Commercial and Managed Cases List.

   …

   Future conduct of the proceedings

   [171]My assessment of the issues in these proceedings is that they involve similar, but not identical, issues of fact to those raised before K Martin J in the 2017 MCP Proceedings, with the exception that the present proceedings do not involve any question of the grant of further access and use rights to tenements by Mineralogy to the CITIC parties, which was a central issue in the 2017 MCP Proceedings.

   [172]As the FCD Proceedings have now been on foot for more than six years, I assume that they will be ready for trial this year or early in 2025, as had previously been indicated to Lundberg J.

   [173]Because of the dismissal of the strike out application, these proceedings [i.e. the 2023 MCP Proceeding] will now have to await the determination of the FCD Proceedings.

   [174]However, as I have accepted that these proceedings are reasonably urgent, and should proceed to a hearing as soon as can be accommodated by the court, I presently consider that the trial of this action should be held either concurrently with, or immediately following upon, the trials in the FCD Proceedings.

   [175]As I have said, the resources available to the parties appear to be vast, such that they have the ability to prepare this action for trial within the time required for that to occur.

   [176]Further, the court presently has the resources available to hear all three matters in the near future. For that reason, it appears to me that the case management of the current proceedings should be undertaken by the same judge as the judge who has case management of the FCD Proceedings.

   [177]The parties will be advised which judge is to be the case manager once that has been determined by the court.

3. I accept the submission of the Mineralogy Parties that in the published reasons by which Cobby J resolved the applications before him, his Honour was not seeking to determine or predetermine the sequencing applications which were already on foot at the time his Honour heard those other applications.  The interaction between the 2023 MCP Proceeding and the other actions which form the Cape Preston Proceedings was not expressly the subject of argument before his Honour.  The interaction between the proceedings is a matter Cobby J considered was best left for a subsequent determination.  The present applications are the appropriate vehicle for that determination.

4. Nonetheless, his Honour's observations as to the 'reasonably urgent' nature of the 2023 MCP Proceeding should be given considerable weight, in my view.[54]  His Honour had before him significant factual material as to the nature and status of the Cape Preston mine, and received detailed submissions from the parties as to the course those proceedings should take, in the context of an expedition application. 

   [54] Sino Iron Pty Ltd v Mineralogy Pty Ltd [167] (Cobby J).

5. Cobby J indicated he did not need to decide the expedition application in the circumstances, but was plainly of the view that the proceedings in question should move swiftly to resolution.

(d)     Status of the proceeding

1. The 2023 MCP Proceeding is less advanced than the Indemnity Proceedings, but has the advantage that similar proceedings have been run to trial by these parties in recent memory.  The 2017 MCP Proceeding were heard by Kenneth Martin J in early 2022.  Experience suggests that these well-resourced parties, having run a similar trial in 2022, will be well able to progress this action to a final trial, in these circumstances, by about April 2025.  Certainly, the CITIC Parties have forcefully expressed a willingness on their part, as the plaintiffs to the proceeding, to actively progress the matter to a final trial on this timetable.

2. Submissions were made at the hearing of these applications as to the urgency of the 2023 MCP Proceeding.  I have extracted above the oral submissions made by Mr Kirkwood SC.  Those submissions are supported by the evidence of Mr Goodwin, as appears in his detailed affidavit, to which Cobby J was also taken during the course of the expedition application.

3. I will proceed on the basis that the proceeding is 'reasonably urgent' and that there is a 'real public interest in the ongoing dispute between the parties regarding the submission of new mine continuation plans being resolved as soon as possible'.[55]  Cobby J reached that conclusion on the materials before him.  That is a conclusion which I am also able to reach, and I do reach that conclusion, on my review of the material.

(3)     The Fulcrum Proceeding

(a)     An overview

[55] Sino Iron Pty Ltd v Mineralogy Pty Ltd [176] (Cobby J).

1. The Fulcrum Proceeding is the most recently filed of the actions, having been commenced by the Mineralogy Parties on 15 December 2023.  The proceeding largely seeks monetary relief. 

2. The Mineralogy Parties seek damages against the CITIC Parties, two of its executives, their legal advisors, and a contractor.  The causes of action pleaded include tortious conspiracy, collateral abuse of process, breach of contract, and inducing or procuring breach of contract.  The core body of allegations in the proceeding are described as the 'Fulcrum Allegations'.  Further, central to each of the causes of action is said to be the existence of the 'Fulcrum Group' within the CITIC Parties' organisation, and the prosecution of the 'Fulcrum Purposes'.

3. An earlier, similar, proceeding had been filed by the Mineralogy Parties on 3 October 2023 (CIV 2137 of 2023).  The earlier action did not name the law firm or the contractor as parties.  The earlier action was discontinued relatively promptly, on 28 November 2023.  I observe that, before the action was discontinued, the CITIC Parties had filed a chamber summons in the action seeking summary judgment and to strike out the statement of claim.

4. The defendants have similarly applied in the fresh Fulcrum Proceeding for summary judgment or to strike out the Mineralogy Parties' statement of claim.  The hearing of those applications is presently listed to be heard over three days commencing on 15 October 2024.

5. It is helpful to note that the Mineralogy Parties' pleading is structured using the following subject headings, which provide an indication of the substance and overall theme of the allegations:

   B The obtaining of development rights by Mineralogy by entry into the State Agreement and the agreements Mineralogy had entered into with its subsidiaries to pursue those development rights immediately prior to negotiations and the entry into agreements with CITIC

   C Negotiation and agreement with CITIC for the acquisition by it of limited interests within the Mineralogy Tenements.

   D CITIC steps between 2006 - 2010 to give effect to the CITIC Negotiated Agreements

   E CITIC incurs foreign exchange losses relating to, and consequently changes its leadership of, the Sino Iron Project

   F CITIC unilaterally forms the view it is dissatisfied with the CITIC Negotiated Agreements and resolves to alter them

   G The Fulcrum Group

   H Defendants prosecute the Fulcrum Purposes

6. At [41] of the statement of claim in the Fulcrum Proceeding, the Mineralogy Parties describe the 'Fulcrum Purposes' in the following manner:

   [41] The purposes of the Fulcrum Group (Fulcrum Purposes) were:

   (a) to achieve the Contract 'Alteration' Objective;

   (b) to recoup the additional costs of developing the Sino Iron Project in paragraphs [36](b) to [36](d) above from Mineralogy;

   (c) to seek to sterilise Mineralogy's other valuable mining tenements; confound the evident commercial intent of the sophisticated contractual arrangements the parties agreed to; and render the CITIC Parties the one and only miner that Mineralogy must sell its other rights to, the other tenements having been rendered unsaleable and unusable by Mineralogy as a miner.

7. The 'Contract Alteration Objective' referred to in the foregoing pleading is earlier pleaded as follows:[56]

   [36]By no later than May 2010, by reason of the matters alleged in paragraph [25] to [35], CITIC had determined that steps were required to be taken to alter the parameters in which the Sino Iron Project was operating, including the contractual regime and the area allocated to the Sino Iron Project under the CITIC Negotiated Agreements, to parameters more favourable to CITIC and any subsidiary company, and less favourable to Mineralogy and Mr Palmer (the Contract 'Alteration' Objective), by reason of each of:

   (a) it having negotiated what it considered to be an unfavourable bargain to it and any subsidiary companies, compared to the position of Mineralogy and Mr Palmer, under the CITIC Negotiated Agreements;

   (b) it and its subsidiary companies had suffered significant losses by reason of the foreign exchange hedging pleaded in paragraph [29] to [35] above, and as recorded in the CITIC FX Losses Announcement;

   (c) it and its subsidiary companies could not recover from MCC the cost overruns in developing the Sino Iron Project or as a result of the Sino Iron Project Construction Delay, as MCC was also an entity ultimately owned by the People's Republic of China;

   (d) consequently, the additional costs of developing the Sino Iron Project in (b) and (c) above were to be recouped from Mineralogy.

   [56] Fulcrum Proceeding, Amended Defence [36].

8. I have had previous cause to consider the 'Fulcrum Allegations' at an interlocutory level.  I heard an interlocutory challenge in March 2023 in both actions in the Indemnity Proceedings.  By that challenge, the CITIC Parties sought to strike-out various paragraphs of the Mineralogy Parties' reply pleadings in both actions, which articulated the 'Fulcrum Allegations'. 

9. In the course of my reasons in rejecting the challenge, I noted that I was the seventh judge to review the allegations but would probably 'not be the last'.  I can now add Cobby J to the list of judges of this Court who have been asked to scrutinise the 'Fulcrum Allegations' pleading. 

10. Within those earlier reasons, I referred to the decision of Kenneth Martin J in Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 15].  That was his Honour's decision, following trial, in the 2017 MCP Proceeding.  The 'Fulcrum Allegations' formed part of the pleaded case in that proceeding.  As I understand it, his Honour is the only judicial officer of the eight judges who have examined the 'Fulcrum Allegations' to do so in both an interlocutory and a trial setting.  His Honour had struck out the pleading prior to the trial in 2022, following which it was 'rehabilitated' by the Court of Appeal, to use his Honour's term, and thus remained an issue at trial.  His Honour addressed the allegations in his trial reasons under the heading - Sundry issue 7: the so-called 'Fulcrum Purposes'.

11. His Honour addressed the allegations only on a conditional basis, having found that there was no reasonable request made by the CITIC Parties to Mineralogy which triggered an obligation for Mineralogy to honestly consider the request.[57]  As to the merits of the allegations, his Honour made the observations set out in Attachment A to these reasons, which he expressly described as mere obiter.

    [57] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 15] [2449] - [2452] (Kenneth Martin J).

12. The foregoing demonstrates that findings, albeit in a conditional and obiter sense, have already been made by a judge of this Court in relation to the core aspects of the Fulcrum Allegations.

(b)     The parties

1. In the Fulcrum Proceeding, two executives of the CITIC Parties are named as defendants (Ms Dillon and Mr Zeng).  The law firm which has represented the CITIC Parties in much of the contested litigation is also named as a defendant, being Allens.  Ms Dillon, Mr Zeng and Allens are represented by the same solicitors and counsel who appear for the CITIC Parties.

2. Additionally, FBIS is named as the seventh defendant.  As noted above, it is a contractor to the CITIC Parties.  FBIS appeared through counsel to support (in part) the CITIC Parties' position on these applications.  Fundamentally, FBIS does not wish its interests to be forgotten by the Court or to become obscured by the dust of conflict generated by the several pieces of active litigation on foot between the primary protagonists.

(c)     Status of the proceeding

1. The Fulcrum Proceeding has not progressed far at this stage.  The Mineralogy Parties' statement of claim is the only pleading filed to date, and that pleading is the subject of a multi-day interlocutory argument scheduled for October this year.  So far as I can assess it, the Mineralogy Parties' pleading is facing a concerted strike-out and summary judgment manoeuvre which may result in one of several outcomes.  It may bring the action to a standstill.  It may result in a further iteration of the pleading being required.  Alternatively, the action may proceed unamended.  Pending the determination of that application, Cobby J has ordered that the defendants be relieved from the obligation to file their defences.  That is an orthodox order.

2. The applications are supported by two solicitors' affidavits which run to over 1,500 pages, with an 'outline' of submissions from the CITIC Parties which runs to 174 pages, citing some 168 authorities.  The size and scale of the Mineralogy Parties' outline in response has not yet emerged, but it is unlikely to be a lean document.  It can therefore be assumed that Cobby J, who will hear that argument, will require some considerable time to assess and decide those issues.  It is by no means a garden variety strike-out application. 

3. In the event the issues raised by the parties on the interlocutory hearing in the Fulcrum Proceeding are not further narrowed, I anticipate a decision on those applications will not be finalised until early 2025.  In general terms, that likely means the task of progressing the Fulcrum Proceeding to a final trial by late April 2025, or even June 2025, would be ambitious and unrealistic to say the least. 

4. Finally, I note that detailed correspondence has passed between the solicitors for the parties to the Fulcrum Proceedings, concerning the interlocutory applications listed for hearing in October 2024.  The correspondence reveals there have been entreaties from the Mineralogy Parties' solicitors to the opposing camps to the effect that the interlocutory applications should be withdrawn by the CITIC Parties, to permit the Fulcrum Proceeding to progress more swiftly.[58]  The opposing camps, being the CITIC Parties and FBIS, have rejected those entreaties.[59]

   [58] Iskander Affidavit, Attachment SMI-4, at [8].

   [59] Iskander Affidavit, Attachments SMI-6 and SMI-7.

F.     The parties' competing submissions

(1)     Mineralogy Parties

1. The Mineralogy Parties submit that the justification for these applications is as follows.[60]

   [60] Mineralogy primary submissions filed in CIV 2425 of 2023 [3].

2. First, there are said to be common allegations of fact concerning what is referred to as the 'Fulcrum Allegations' in all of the Cape Preston Proceedings. 

3. The Mineralogy Parties submit that a determination of the Fulcrum Proceeding ahead of the other actions will quell issues in dispute in the other proceedings and thus reduce the overall burden on the resources of the parties and the Court.[61]  The explanation for this is that there are allegations in the Indemnity Proceedings and the 2023 MCP Proceeding that represent a subset of the allegations in the Fulcrum Proceeding.  The 'Fulcrum Allegations' are detailed in the Third Amended Statement of Claim dated 28 June 2024 filed in the Fulcrum Proceeding.[62]  The pleadings in this respect allege the establishment of a group comprised of members of the CITIC entities and their advisers, known as the 'Fulcrum Group'.  That group is said to have certain purposes, directed at altering the contractual relations between the parties, recouping costs, seeking to sterilise Mineralogy's other tenements, seeking to confound the commercial intent of the contractual arrangements, and to render the CITIC Parties as the one and only miner to which Mineralogy must sell its other rights.

   [61] Mineralogy primary submissions [14].

   [62] Third Amended Statement of Claim dated 28 June 2024 in the Fulcrum Proceeding [12] - [15], [16] - [24], [25] - [38A], [41] - [43], and [134] - [139P].

1. To summarise the position - the Fulcrum Proceeding is the subject of a substantial interlocutory argument before Cobby J listed for hearing in mid-October 2024, involving summary judgment and strike-out arguments, which may have a significant impact on the scope and profile of the claims in that case, and the course of the proceedings thereafter.  The interlocutory applications filed by the defendants to the action have been listed by the Court for hearing, and orthodox orders have been made to relieve the CITIC Parties (and the other defendants) from the obligation to file their defences pending the determination of the applications. 

2. The Court should be cautious as to the making of any directions (much less interfering with directions already made) by which the defendants to that action would be required to plead defences to a statement of claim which is said to justify summary judgment in favour of the defendants or is susceptible to being struck out.  This is the approach suggested by the Mineralogy Parties.  It should be rejected.

3. The Fulcrum Proceeding will require re-assessment by the Court once the outcome of the above interlocutory applications is known, to assess when the proceeding will be ready for trial.  Of course, the Fulcrum Proceeding has not progressed far at this stage, having only been commenced in December 2023.  The assessment as to the trial listing of this action, and whether it can be heard together with any of the other Cape Preston Proceedings, can only be undertaken once the outcome of the interlocutory applications is known and it would be premature to make additional directions before then.

(4)      The Indemnity Proceedings are well behind schedule and should not be further delayed

1. Fourth, the Indemnity Proceedings are the furthest advanced of all the actions, in my assessment, but are well behind schedule and the trial of the two actions should not be further delayed.  The actions are now well advanced and all parties have had ample time to prepare those matters for trial. 

2. As I have explained above, the pace at which the Mineralogy Parties have progressed the proceedings has been inconsistent.  The Court offered the parties a trial window in the second half of 2024, but that window has well and truly closed.  The slippage in the progress of the actions has been regrettable.  The actions are not urgent per-se, and no evidence has been adduced to that effect. They are money claims. But given the age of the proceedings, the parties must now progress them to trial as efficiently as possible, in my view, consistent with the overriding goal in O 1 r 4A RSC.

3. With disciplined case management, the Indemnity Proceedings can be ready for trial, on all issues, by about April 2025.  This is an object in respect of which the considerable resources of the parties should now be directed.

(5)      The Indemnity Proceedings should not be split as to quantum

1. Fifth, I do not propose to order that questions of quantum be split from the trial of all other issues in the Indemnity Proceedings.  The Court has previously split, and then unified, the issues in the actions.  Absent a compelling sworn explanation, the Court should not engage in a process of recycling interlocutory orders in this way.  It is inefficient and itself productive of delay.  There is simply insufficient evidentiary material before me to justify the making of a third iteration of an order dealing with matters of bifurcation.

(6)      There is a high degree of commonality across the actions

1. Sixth, when the claims and the pleaded issues in the Cape Preston Proceedings are examined, it can be seen that there is, across all of the actions, a high degree of commonality of the parties, the written instruments which the Court would be required to construe (including the FCD, the MRSLAs, and the State Agreement), and the pleaded issues and the evidence which will likely be led by the parties in respect of these issues.  I will return below to the need for clarity as to the evidence to be led in the actions.

2. As to the commonality of parties, when the 2023 MCP Proceeding and the Indemnity Proceedings are examined, it can be seen that the commonality of parties is pronounced.  Indeed, other than the State of Western Australia which is a party in the 2023 MCP Proceeding but not in either of the Indemnity Proceedings, the parties are identical.  Some further points should be made in relation to the parties to the actions:

   (a)The primary participants across the Cape Preston Proceedings are the Mineralogy Parties and the CITIC Parties.  I have identified in these reasons the additional parties whose interests must also be borne in mind.  There is the State of Western Australia, which is a party to the 2023 MCP Proceeding.  In the Fulcrum Proceeding, two executives of the CITIC Group are named as defendants, together with Allens, a law firm which represents the CITIC Parties, and the contractor FBIS.

   (b)Of all these additional parties, only FBIS took an active role in relation to the sequencing applications.  On my assessment, while the interests of the State are relevant in the 2023 MCP Proceeding, I do not anticipate the State would take an overly active role in the progress of the proceedings to trial, or at trial. 

   (c)As to the executives and the law firm named in the Fulcrum Proceeding, their interests would appear to be aligned with that of the CITIC Parties.  I do not assess those parties as having differential interests in the action, and no submissions to that effect were made during the hearing of the applications.  The FBIS party remains concerned about being drawn into a trial involving broader issues of no relevance to its position, with consequent costs burdens.

   (d)It must be borne in mind that any findings of fact made in the Indemnity Proceedings or the 2023 MCP Proceeding will not necessarily bind the additional parties who are named in the Fulcrum Proceedings.  That is a factor to be weighed in the balance. 

3. The Cape Preston Proceedings have a high degree of overlap between them, in terms of factual material and issues.  No party suggested to the contrary.  Quite obviously, the disputes all emerge from the same iron ore project, and from the same core instruments which govern the parties' relationships.  More specifically, there are particular issues which exhibit a high degree of commonality across the actions.

4. One of those issues, or sets of issues, is the 'Fulcrum Allegations', which builds upon the asserted 'Fulcrum Purposes'.  This body of allegations finds a home in the QNI Proceeding, the Palmer Petroleum Proceeding, the 2023 MCP Proceeding, and, plainly as well, in the Fulcrum Proceeding.  I accept that the 'Fulcrum Allegations' are not identically pleaded across each of the actions, but I consider there is nonetheless a high degree of commonality between the facts and issues related to the 'Fulcrum Allegations', which bear a high degree of similarity in each proceeding.

5. Another set of issues which seeps across the actions are the indemnity claims under cl 11.5 of the FCD, which are raised in the QNI Proceeding, the Palmer Petroleum Proceeding, and the 2023 MCP Proceeding.  These issues are raised in an identical fashion in all of these proceedings.

6. As to the commonality of the pleaded issues, a comparison between the 2023 MCP Proceeding and the Indemnity Proceedings is instructive.  The indemnity claims pleaded in the Indemnity Proceedings are expressly incorporated into the Mineralogy Parties' defence in the 2023 MCP Proceeding.  Further, the 'Fulcrum Allegations' pleaded in the Mineralogy Parties' replies in each of the Indemnity Proceedings are also expressly incorporated into the Mineralogy Parties' defence in the 2023 MCP Proceeding.  The pleadings demonstrate that there will therefore be a high degree of commonality between the facts and evidence across these actions, and there is thus a need to consider how this evidence might most efficiently be adduced and then considered by the Court. 

7. Of course, there is a high degree of commonality between these actions and the Fulcrum Proceeding, in terms of the 'Fulcrum Allegations'.  I do not discount this consideration.  It must be balanced against the other competing considerations, though, including the relative status of the Fulcrum Proceeding and the impact on the other actions if the Fulcrum Proceeding is treated as the lead action.

8. A further factor to bear in mind, insofar as commonality of issues is concerned, is that there are substantial parts of the 2023 MCP Proceeding and the Indemnity Proceedings which are not common and do not overlap.  The adequacy of the latest mine plans prepared by the CITIC Parties are matters relevant only to the 2023 MCP Proceeding.  The financial health of the Queensland Nickel Refinery and Palmer Petroleum Pty Ltd, and the asserted impact on that financial health in a scenario in which the RCB payments had been made, are matters which do not arise in the 2023 MCP Proceeding. There are numerous issues pleaded in the actions which are confined in their relevance to the action in which they are pleaded.  That is a factor which points against a concurrent trial of the actions, and may suggest consecutive trials would be appropriate and more manageable.  

(7)      The Fulcrum Allegations have already been the subject of findings by the Court

1. Seventh, the stark reality is that the 'Fulcrum Allegations', in a substantially similar form to the manner pleaded in the Indemnity Proceedings, the 2023 MCP Proceeding and the Fulcrum Proceeding, have already been the subject of a trial assessment, to some degree, by a judge of this Court.  I have referred to that assessment earlier in these reasons, being the decision of Kenneth Martin J in the 2017 MCP Proceeding.

2. There are strong similarities between the point just made and the circumstances in Ghose.  In the sequencing application heard by Austin J, it was contended on behalf of Mr Ghose, who actively opposed the applications for the proceedings to be heard at the same time, that the insurers would succeed in one of those proceedings only if the court made findings that were in substance inconsistent with the findings which had already been made by a different judge in earlier, related proceedings. 

3. Austin J observed that there was thus 'already a risk of inconsistent findings' given the earlier determination which had been made and, if that was the case, his Honour considered that nothing that he could do in dealing with the application before him would avoid the risk.[99]  His Honour accepted the possibility that he might avoid further inconsistency of findings was nonetheless 'still a factor to be weighed up in deciding whether to make the order for a joint hearing'.[100]  I agree with that observation.

(8)      The risk of inconsistent findings is relevant but not an overriding imperative  

[99] Ghose [97].

[100] Ghose [97].

1. Eighth, it is relevant to consider the risk of inconsistent findings as between each of the Cape Preston Proceedings, if they were to be heard at separate trials by separate judges.  I recognise there is an importance attached to identifying a pathway for the determination of multiple related actions which minimises the risk of inconsistent findings being made by different judges of the court.  That said, the correct approach is not to relentlessly search for the pathway which avoids the risk of inconsistent findings.  Eliminating every possibility of inconsistent findings is not, as Austin J observed in Ghose, an overriding or controlling imperative.

2. In the event all of the Cape Preston Proceedings were heard at separate trials by separate Judges, there is a real risk of inconsistent findings being reached in respect of some core matters, including the indemnity claims and the 'Fulcrum Allegations'.  That risk can be managed by ordering that two or more of the actions be heard concurrently, or perhaps in consecutive trials by the same Judge.  It is a risk that remains present though, to some extent, given the findings made by Kenneth Martin J to which I have earlier referred.

3. The submission advanced by the CITIC Parties is that the risk of inconsistent findings is of Mineralogy's own making.  To the extent this suggests I should penalise the Mineralogy Parties in some way for making these allegations, I reject the submission.  The 'Fulcrum Allegations' will need to be assessed by the Court in each action, on their face, having regard to the evidence adduced in support thereof, in due course.  As matters stand, it cannot be said that the allegations are fanciful or vexatious in any meaningful way, although I have already noted these allegations received a strong degree of negative treatment from Kenneth Martin J in the 2017 MCP Proceeding. 

4. I therefore accept the submission advanced by senior counsel for the Mineralogy Parties that it would be wrong to marginalise or trivialise the 'Fulcrum Allegations'.[101]  This body of allegations is pleaded by the Mineralogy Parties across several actions, has survived interlocutory challenges to date, and so must be progressed, as efficiently as possible of course, to a final trial and ultimate determination.

(9)      The Fulcrum Proceeding should not be the lead action

[101] ts 32 - 34 (5 August 2024).

1. Ninth, the primary approach to the sequencing of the actions sought by the Mineralogy Parties would have the Fulcrum Proceeding listed for trial ahead of the other actions, including as to any appeals from the decision in that proceeding.  I  consider this approach is not pragmatic or realistic, for the following reasons. 

2. The suggested approach would unduly delay the determination of the only truly urgent matter, being the 2023 MCP Proceeding.  The Fulcrum Proceeding is facing a contested interlocutory application in October 2024 and it is far from realistic to suggest that this action would be ready for trial before June 2025.  

3. I have mentioned already that I do not consider it appropriate for the Mineralogy Parties to be penalised for the manner in which it has raised the 'Fulcrum Allegations'.  Nonetheless, the importance to the Mineralogy Parties of having the most fulsome set of these allegations (as pleaded in the Fulcrum Proceeding, to which it is said all relevant parties have been joined) determined at trial must be tempered in the circumstances.  The Mineralogy Parties have, over numerous actions, pleaded out the 'Fulcrum Allegations' and had a fulsome opportunity at the trial in 2022 before Kenneth Martin J to put their best foot forward, so to speak, in relation to those allegations.  Whether they presented their highest and best case at that trial is not to the point.  An opportunity was available to the Mineralogy Parties to present that case.  The Mineralogy Parties now again wish to prove these allegations in each of the Cape Preston Proceedings which are on foot.  To put it simply, the Mineralogy Parties do not have an endless entitlement to do so and I must weigh the competing considerations and the interests of other parties when assessing this aspect of the Mineralogy Parties' submissions.

4. The foregoing considerations, in my view, strongly point in favour of an approach by which the most recently filed action, which appears to be furthest from trial, and which is facing a series of substantial interlocutory arguments in the immediate future, is not designated as the lead action which will dictate the timing of the other actions.  Indeed, once it is remembered that the risk of inconsistent findings is a relevant, but not a controlling factor, it is quite apparent that the suggested, primary approach of the Mineralogy Parties on these applications is not compelling.

5. To summarise, any benefits arising from the determination of the 'Fulcrum Allegations' by the Court within the framework of the Fulcrum Proceedings, including with any appellate review therefrom, with all affected parties being bound therein, must be seen as modest when compared to the competing proposals by which three of the actions (the two actions in the Indemnity Proceedings and the 2023 MCP Proceeding) can be pursued to a single trial in a relatively prompt fashion.

(10)     A concurrent trial of all Cape Preston Proceedings would be unwieldy

1. Tenth, the scenario in which all four actions constituting the Cape Preston Proceedings are listed together for a concurrent trial would be quite unwieldy in my view and unnecessarily complex.  It must be remembered that, whilst there is commonality across the actions, there are numerous differences of substance in the cases pleaded.  The risk of evidentiary admissibility issues as between the actions, causing prejudice to one or other party, may well become unmanageable. 

2. It would also mean that the additional parties, including FBIS and the State (putting to one side the CITIC-aligned defendants, being the executives and Allens) would be required to participate in a very lengthy trial of matters which do not concern them.  Practical arrangements could be made to excuse them from parts of the case, but the sprawling nature of the cases is likely to make that a more complex task than it might be in other, narrower, cases. 

3. In any event, the Fulcrum Proceeding is not as advanced as the other actions, and a concurrent trial of all actions would necessarily lead to a delay in the resolution of the 2023 MCP Proceeding and a further delay in resolution of the Indemnity Proceedings.  As I have said, I do not favour that approach.

H.     Conclusion

1. On my assessment of the relevant matters which I have traversed in the course of these reasons, I do not consider the Court is presently in a position to form a final assessment as to the course the four actions which constitute the Cape Preston Proceedings should take, in terms of listing all of those actions for trial.  I have set out above the important findings and conclusions I am in a position to make, which will assist in the future management and directions of these actions.

2. I consider it is presently premature for the Court to make a final assessment as to the sequencing of the Cape Preston Proceedings, other than as already foreshadowed with respect to the listing of the 2023 MCP Proceeding.  There are two matters on which further clarity is needed.

3. The first relates to the evidence to be led.  I recognise that the pleadings give a broad picture of the subject matter and the scope of the evidence likely to be adduced by the parties in the 2023 MCP Proceeding and the Indemnity Proceedings.  The Court can also see the likely boundaries of the evidence in the trial of the 2023 MCP Proceeding from the trial of the 2017 MCP Proceeding which was heard in 2022. 

4. I therefore reasonably anticipate there is likely to be an overlap in the lay witnesses called in each of the Cape Preston Proceedings, and perhaps in some of the expert witnesses.  The parties did not overly emphasise these matters in the course of their submissions, perhaps because the witness lists and required experts for the actions have not been sufficiently refined as yet.  No affidavit evidence was led to confirm the likely lay and expert witnesses who are expected by the parties to be called to give evidence across the various actions.  Presently, these considerations are relevant to the overall assessment, but not matters to which I can give great weight given the absence of direct evidence at present.   

5. Thus, as matters presently stand, the Court does not have clear visibility as to the extent of the lay and expert evidence which will be led in the 2023 MCP Proceeding and the Indemnity Proceedings. 

6. The second issue, allied to the first, is the assessment of the savings in time and costs.  I recognise that a concurrent listing of some of the actions will likely lead to a saving in time and costs for the parties, most particularly the Mineralogy Parties and the CITIC Parties, and likely reduce the overall length of the trial time required compared to the scenario in which all actions are listed in consecutive trials.   There will also be considerable savings in judicial time and the use of the Court's resources by having some of the actions heard together.  The orthodox position by which all of the actions are heard in consecutive trials would lead to a duplication of evidence and trial time, although I accept the prospect that once some of the allegations are heard and determined, the later actions may be reduced somewhat in terms of their breadth and trial time. 

1. I do not however have before me any affidavit material which explores or verifies these matters in any way.

2. I am also conscious of the Court's past history with the principal protagonists to the Cape Preston Proceedings.  The Mineralogy Parties and the CITIC Parties have been in active litigation between each other for a decade or more.  The parties are well-resourced and have had a real tendency to fight disputes on many fronts, taking what might be described as a 'scorched earth' policy to their battles.  Appellate reviews of single judge decisions have been plentiful, including appeals from interlocutory decisions.  Undertaking a realistic assessment of the posture of these parties, as I consider I must, I harbour strong doubts that the scale and complexity of each action would reduce or narrow if they were heard in a consecutive fashion.

3. Weighing these matters together, it is premature to presently order that any of the actions be heard together by the same judge (other than of course the Indemnity Proceedings which are already the subject of an order to this effect).   Nonetheless, I consider the parties should proceed on the basis that the Court will make a final assessment in this regard in early December 2024, once matters have further progressed.

4. I consider that the most practical and efficient solution to adopt is to make orders for the Indemnity Proceedings and the 2023 MCP Proceedings to be actively case managed together, with a clear understanding on the part of all parties that those actions should be ready for trial by April 2025.  The QNI Proceeding and the Palmer Petroleum Proceeding are already being case managed together, of course, and those actions are to be heard together by the same judge, as was ordered by Kenneth Martin J in September 2020.

5. I propose to make trial directions in the 2023 MCP Proceeding to facilitate the hearing commencing in April 2025, of all of the issues in the action, other than in respect of the damages claim.  The parties have estimated a hearing time of approximately 10 days,[102] which seems somewhat optimistic in my view.  I propose to allocate 3 days in reserve to ensure the matter can be completed.

   [102] ts 47 (5 August 2024).

6. I will also reserve an additional six weeks in May and June 2025 to facilitate the potential concurrent or consecutive listing of the final trial of the Indemnity Proceedings.   

7. To be clear, as matters presently stand, on the evidence before the Court at present and given the status of each of the Cape Preston Proceedings, I consider there is considerable merit in ordering that the Indemnity Proceedings and the 2023 MCP Proceeding be tried by the same judge, either in a concurrent hearing or in consecutive hearings with evidence in each action being evidence in the other actions.  That approach carries with it the benefit that the risk of inconsistent findings is managed (in that there would be one set of findings made by the Court with respect to the indemnity claims and the 'Fulcrum Allegations', and the prospect of having two judges decide the common issues, potentially with inconsistent outcomes, would be managed), there is likely to be a reduction in litigation costs with a concurrent trial, trial time is likely to be reduced, and fewer judicial resources will be required.  The time for making this assessment is not now.  Whether both the Indemnity Proceedings and the 2023 MCP Proceeding ought to be heard together at a concurrent trial, by the same judge, or in consecutive trials by the same or different judges, is a matter on which a final determination cannot presently be made. 

8. In the event consecutive trials are appropriate (that is, a trial of the 2023 MCP Proceeding, followed by a short break and then the trial of the Indemnity Proceedings), it would not be appropriate for judgment to be delivered in the first of these trials before judgment in the second, having regard to the types of matters canvassed by the Full Federal Court in GetSwift, to which I have earlier referred.  Additionally, there is considerable benefit in ensuring, as best as the Court can, that any appellate review of those trial decisions travels to the Court of Appeal at the same time.

9. A final assessment should be made in early December 2024, once the full extent of the lay and expert evidence to be led by the parties has been clarified, and when the Court will have a higher degree of confidence and visibility as to the benefits and risks associated with the competing pathways.

10. As to the ability of the parties to prepare these matters for trial, an anticipated listing of the matters in April 2025 (which involves a lead-time of some 8 months) should be achievable in respect of the Indemnity Proceedings, bearing in mind the expectation the Court was previously given that the actions could be ready for trial by October 2024. 

11. As to the 2023 MCP Proceeding, I am conscious that the trial of the prior dispute between these parties regarding the mine continuation plans occupied some 33 hearing days.  I do not underestimate the potential complexity of the hearing of the claims in the 2023 MCP Proceeding, particularly bearing in mind the introduction in the pleadings of the indemnity claims and the 'Fulcrum Allegations'.  

12. That said, efficiencies will emerge from the fact the parties have previously conducted a trial of similar issues and, at the risk of being overly optimistic, there is a reasonable prospect that the reasons for decision of the Court of Appeal in the 2017 MCP Proceeding may serve to reduce the complexity and narrow the battleground for the purposes of the 2023 MCP Proceeding.

13. I recognise that if the Fulcrum Proceeding, which raises the 'Fulcrum Allegations', were to be separately listed for trial, the risk of inconsistent findings arises in relation to those allegations.  That consideration is not a determinative factor in and of itself, however, it is but one of the factors to weigh in the balance.  In my view, it is not a factor which outweighs the competing considerations on these sequencing applications, because it must be recognised that the 'Fulcrum Allegations' have already been heard at trial by a judge of this Court, with findings made thereon (albeit obiter findings), and the task of the Court on applications such as the present is to approach the issues in a pragmatic and realistic manner.

1. Orders

1. For the foregoing reasons, I propose to make orders to the effect set out below, subject to hearing further from counsel, and will ask counsel for the parties to bring in minutes of orders which give effect to these reasons. 

2. I have proposed a trial date for the 2023 MCP Proceeding which commences on Monday, 7 April 2025, however I recognise that the month of April includes the Easter and ANZAC Day public holidays, which might complicate the orderly hearing of the matter during that month.  The Court can accommodate a later start date in the month if that proves to be more convenient for all parties and for the efficient hearing of the trial. 

3. As to the orders to be made in action CIV 2336 of 2023, being the 2023 MCP Proceeding:

   1.Orders as to pleadings, discovery, trial documents, evidence and submissions should be made substantially in accordance with the proposed directions set out in paragraphs 1 to 51 of the minute of proposed directions dated 2 August 2024 filed by the plaintiffs in action CIV 2336 of 2023. 

   2.Pursuant to O 32 r 4 RSC the following question, namely the quantification of any loss or damage suffered by the plaintiffs which is the subject of [95] of the statement of claim, is hereby separated and is removed, to be tried separately, if necessary, subsequent to a determination by trial of all other issues in the proceeding at a first trial session (Primary Trial).

   3.The action be listed for the Primary Trial for 13 days commencing no later than 10.00am on Monday, 7 April 2025, with a later commencement date to be the subject of further conferral between the parties and consideration by the Court.

   4.By 7 March 2025, the plaintiffs file and serve an Entry for Trial and Notice of Trial entering the action for trial commencing on 7 April 2025 on an estimated duration of 13 days and meet any associated filing fees at that time.

   5.This action is to be case managed together with action CIV 2072 of 2017 and action CIV 1267 of 2018 (being the QNI Proceeding and the Palmer Petroleum Proceeding) by Lundberg J in the Commercial and Managed Cases List.

4. As to the orders to be made in actions CIV 2072 of 2017 and CIV 1267 of 2018 (the Indemnity Proceedings):

   1.These actions are to be case managed together with action CIV 2336 of 2023 (being the 2023 MCP Proceeding) by Lundberg J in the Commercial and Managed Cases List.

5. In each of the Cape Preston Proceedings, an order should be made that the question as to the interaction between the trial of action CIV 2336 of 2023 (i.e. the Primary Trial) and the trial of the other actions be reserved for further consideration by the Court at a directions hearing to be listed on a date to be fixed in early December 2024

6. The sequencing applications brought by amended chamber summons dated 19 July 2024 in each action should otherwise stand adjourned, with liberty to apply.  I will hear from counsel on the question of the costs of these applications.

7. Upon delivery of these reasons on 10 September 2024, senior counsel for the Mineralogy Parties observed that his acceptance of the CITIC Parties' estimate of the length of the trial of the 2023 MCP Proceedings of 10 days was premised on that trial following the other trials.  In the event the trial of the 2023 MCP Proceeding was the 'first cab off the rank' so to speak, I should record that Mr Dunning KC's trial length estimate was closer to 20 sitting days.[103]

1. [103] ts 76 (5 August 2024). See [194] of these reasons.

ATTACHMENT A

Extracts from Kenneth Martin J's reasons delivered in relation to the 2017 MCP Proceeding, in Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 15] [2023] WASC 56, commencing at [2435]:

1. By reference to an interlocutory observation by the Court of Appeal at [129] towards what was then observed to be arguable (and so, was allowed to proceed to a final trial evaluation) - it is my conclusion, if ever needed, that an assumed holding of such 'Fulcrum Purposes', or of the corporate wish or desire if assumed (but which I do not find proved on the balance of probabilities upon the trial evidence, especially given an absence at the Primary Trial of any relevant witness evidence on behalf of the CITIC plaintiffs as to a holding of such alleged corporate purposes) goes nowhere in the end.  Assumed corporate intentions to recoup back over time from Mineralogy the capital cost overrun loss amounts, or to recover back from Mineralogy the incurred foreign exchange losses - from out of what the CITIC plaintiffs would otherwise be contractually remitting to Mineralogy as royalty payments over time would not provide, even so assumed, a legitimate basis for Mineralogy to reasonably refuse a reasonable request for extra tenure otherwise validly given to it.

2. Two main factors influence me to that negative view as to the effects of so-called 'Fulcrum Purposes'. First, for a longer term mining project conducted as between participants in a commercial world, changes in the underlying financial circumstances must invariably emerge or evolve over time.  Deals representing a status quo are always open to a consensual renegotiation and so then, to a long term consensual variation. Assume, for instance, that a greatly expanded in scope iron ore volume Sino Iron Project ever came to be perceived as being viable - say, of economic proportions enough to warrant capital outlay expense in the billions of dollars towards establishing a deep water port at Cape Preston, to thereby facilitate direct loading of export bulk ships, rather than by the current double handling by transhipment arrangements.  Naturally, the participant parties under that changed Sino Iron Project hypothesis might then review their existing commitments and possibly seek to adjust and revise them by consensus.

3. Potentially changed commodity demand horizons might then deliver another perfectly legitimate hypothetical opportunity for a renegotiation of earlier agreed MRSLA levels of royalty rates - so as to accommodate an objective of better adjusting the Sino Iron Project's internal rate of return for the CITIC plaintiffs' financiers over time.  All of that would be perfectly understandable in a rational business world.  So then, there is a world of difference between some broadly held but benign long term rate of return recoupment objective directed at outlaid funds over time - measured against the means of an implementation and achievement of such a goal.

4. A corporate objective or desire to achieve such a goal under a proper commercial bargaining process in future would not offend a rational and objectively assessed counterparty.  The mere objective if held would not, by itself, provide a sufficient platform to reasonably refuse a request for additional tenure areas shown to be necessary.  A contractual relationship must be rationally assessed at a commercial level, not as if it were being conducted between immature children - seeking out perceived slights to be mortally offended at every opportunity, to gain advantage.

5. Second, the ongoing long-term MRSLA royalty revenue stream benefits that look to be beneficially enjoyed by Mineralogy well into the future by way of the MRSLAs - arising from out of the ongoing Sino Iron Project export operations of magnetite concentrate and its obligations to the State under the State Agreement - need to be carefully weighed in a 'not unreasonably refused' evaluation over a refusal decision to provide additional tenure by Mineralogy.

6. Even if subjective concerns can be assumed as being properly held by Mineralogy over such 'Fulcrum Purpose' recoupment or recovery objectives assumed as held by CITIC (although I heard no direct evidence about that at the Primary Trial from Mineralogy) that alone, in my view, would still not be enough to reasonably refuse the additional tenure.  Wider considerations are in play - including that denial of additional tenure shown as being genuinely necessary, possibly 'cutting off Mineralogy's nose to spite its face' - by thereby jeopardising the future royalty stream - by denying essential extra tenure areas for waste usage to permit the Sino Iron Project's continued future operation.

7. A negative additional tenure refusal stance by Mineralogy could also detract against the capital value assessed to the worth of Mineralogy's royalty stream as an asset - were it ever to be marketed for sale.

8. A refusal of tenure based solely on those assumed Fulcrum Purposes being so held could not by itself, by my assessment, be assessed as either reasonable, or as commercially rational. Public considerations by regard to the many benefits that could then be lost to the State by rendering the Sino Iron Project into some jeopardy of non-continuance, would only reinforce my prima facie views to that end.

9. So in the end, the Fulcrum Purpose arguments of Mineralogy do not, on my view, provide it with a stand-alone platform to validly support a reasonably based refusal by Mineralogy of a tenure request otherwise properly made to Mineralogy. The point, however, was not reached at the Primary Trial. Consequently, these brief observations as to assumed circumstances are mere obiter.

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

LM

Associate to the Honourable Justice Lundberg

10 SEPTEMBER 2024