Palmer v CITIC Ltd [No 14] - [2024] WASC 341

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   PALMER -v- CITIC LTD [No 14] [2024] WASC 341
CORAM:   LUNDBERG J
HEARD:   6 AUGUST 2024
DELIVERED          :   18 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 LTD
First Defendant
SINO IRON PTY LTD
Second Defendant
KOREAN STEEL PTY LTD
Third Defendant

Catchwords:

Practice and procedure - Discovery applications brought by Mineralogy Parties and the CITIC Parties in both the QNI Proceeding and the Palmer Petroleum Proceeding - Applications brought in context in which extensive discovery orders were made in 2019 in the actions with significant pleading changes since that time

Practice and procedure - Orders sought by Mineralogy Parties requiring the CITIC Parties to give discovery of documents relating to the 'Fulcrum Allegations' and 'Fulcrum Purposes' - Orders resisted on the grounds of proportionality - CITIC Parties maintain that all documents within the categories likely to be subject to claims for legal professional privilege - Assessment to be made as to the forensic benefits to the litigation of making such an order - Whether Court can be satisfied that all privilege claims will be upheld - Distinction between discovery and production processes is artificial - Orders requiring discovery made

Practice and procedure - Orders sought by Mineralogy Parties to discharge extant discovery orders made over 5 years ago - Orders require discovery of documents concerning the financial position of the plaintiff parties - Documents assessed as being relevant - Application to discharge the orders declined - CITIC Parties order for further and better discovery of financial documents upheld

Practice and procedure - Orders sought by CITIC Parties for discovery of numerous additional categories - Orders for discovery made

Legislation:

Rules of the Supreme Court 1971 (WA), O 26 r 6, O 26 r 7, O 26 r 16

Result:

Orders made on 13 and 18 September 2024 to grant Mineralogy Fulcrum Discovery application as to Fulcrum Categories 4 to 7 in both actions
Orders made on 13 September 2024 to dismiss Mineralogy Discovery Discharge application as to categories Q26, Q42, P28 and P44 in the respective actions
Orders made on 18 September 2024 to require further and better discovery be given by the Mineralogy Parties in accordance with CITIC Further Discovery application as to categories Q26, Q42, P28 and P44 in the respective actions
Orders made on 18 September 2024 to require discovery of various categories in both actions

Category: B

Representation:

CIV 2072 of 2017

Counsel:

First Plaintiff	:	P J Dunning KC, K S Byrne, D J Fawcett & M Karam
Second Plaintiff	:	P J Dunning KC, K S Byrne, D J Fawcett & M Karam
First Defendant	:	S K Dharmananda SC, J D Birch, S B Nadilo & J R C Sippe
Second Defendant	:	S K Dharmananda SC, J D Birch, S B Nadilo & J R C Sippe
Third Defendant	:	S K Dharmananda SC, J D Birch, S B Nadilo & J R C Sippe

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, K S Byrne, D J Fawcett & M Karam
First Defendant	:	S K Dharmananda SC, J D Birch, S B Nadilo & J R C Sippe
Second Defendant	:	S K Dharmananda SC, J D Birch, S B Nadilo & J R C Sippe
Third Defendant	:	S K Dharmananda SC, J D Birch, S B Nadilo & J R C Sippe

Solicitors:

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

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

Bidvest Australia Ltd v Auzcorp Pty Ltd [No 2] [2017] WASCA 23
City of Bayswater v Viva Energy Australia Pty Ltd [No 2] [2022] WASC 384
Eng Mee Yong v Letchumanan [1980] AC 331; [1979] 3 WLR 373
Maek Pty Ltd v Ibrahim [2022] WASC 285
Manton Enterprises Pty Ltd atf GPK No 2 Trust v LT Market ST Pty Ltd [2021] WASC 4
Mentink v Minister for Justice [2016] FCA 432
Mineralogy Pty Ltd v Sino Iron Pty Ltd [2013] WASC 194
Palmer v CITIC [No 8] [2023] WASC 221
Palmer v CITIC Ltd [No 11] [2024] WASC 210
Palmer v CITIC Ltd [No 13] [2024] WASC 325
Palmer v CITIC Ltd [No 7] [2023] WASC 202
Palmer v CITIC Ltd [No 9] [2023] WASC 238
Perpetual Trustees Co Ltd v Burniston [2012] WASC 26
Roe v The State of Western Australia [2013] WASC 130
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 13] [2022] WASC 475
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 15] [2023] WASC 56

Table of Contents

A. Introduction

B. The discovery applications

The applications filed by the Mineralogy Parties
The applications filed by the CITIC Parties

C. Mineralogy Fulcrum Discovery application

The application
The Mineralogy Parties' position
The CITIC Parties' position
The evidence
The issues requiring consideration
Disposition - power to vacate prior orders and exercise of that power
Disposition - whether to order that discovery now be given
Disposition - scope of the categories

D. Mineralogy Discovery Discharge application

The application
The position of the parties
Disposition

E. CITIC Further Discovery applications

F. CITIC New Discovery application

G. Conclusion and orders

ATTACHMENT A Overview of Discovery Categories and Applications

ATTACHMENT B Fulcrum Categories

ATTACHMENT C Original Discovery Categories

ATTACHMENT D Redfern Schedule - QNI Proceeding

ATTACHMENT E Redfern Schedule - Palmer Petroleum Proceeding

LUNDBERG J:

A. Introduction

These reasons concern the discovery aspects of the omnibus interlocutory applications heard on 6 August 2024 in these two actions.[1]
[1] For convenience, I note the actions are typically referred to by the parties as the QNI Proceeding and the Palmer Petroleum Proceeding, being CIV 2072 of 2017 and CIV 1267 of 2018 respectively. Together, the actions are referred to as the Indemnity Proceedings. Both actions are connected with the instrument known as the Fortescue Coordination Deed or the FCD. I will refer to the plaintiffs as Mr Palmer and Mineralogy (together, the Mineralogy Parties) and I will refer to the defendants as the CITIC Parties.
These reasons should be read together with the reasons published by the Court on 10 September 2024 in respect of the interlocutory pleadings disputes which were also heard on 6 August 2024: Palmer v CITIC Ltd [No 13].[2] Those earlier reasons include a summary of the respective cases pleaded by the parties in these actions, particularly as to the QNI Proceeding, which need not be repeated in these reasons.[3]
[2] Palmer v CITIC Ltd [No 13] [2024] WASC 325.
[3] Palmer v CITIC Ltd [No 13] [24] - [47].
The discovery applications agitated across the two actions seek similar orders, and necessitate a consideration of similar issues in the actions. As with my approach to the pleading issues, without seeking to marginalise the Palmer Petroleum Proceedings, but in the interests of efficiency, I will tend to focus in these reasons on the QNI Proceeding, and address the Palmer Petroleum Proceeding as necessary.
In each of the QNI Proceeding and the Palmer Petroleum Proceeding, there are two applications which have been filed in relation to discovery issues. There have been several hearings over the past 18 months on these discovery issues and, during that period, various discovery orders have been made. Nonetheless, a number of issues remain insoluble and require resolution by the Court.
I should emphasise that the attention of the parties, and the Court, has not been directed to the making of discovery orders in only recent times. Over 6 years ago, in May 2018, Kenneth Martin J made orders in both actions to discharge the CITIC Parties from their duty to give discovery to the plaintiffs.[4] Then, almost 5 years ago, in October 2019, Kenneth Martin J made extensive discovery orders in these actions which required the Mineralogy Parties to give discovery of numerous categories of discovery. The Court’s record of these proceedings indicates that the discovery orders made in 2019 were made largely by consent. In structuring the various categories at the time, it can be inferred that the parties gave consideration to the issues arising in the actions and the scope of their discovery obligations. The changes in the pleadings over time have now led to a more intense analysis of these issues in the past 18 months. It is apparent that changes to the pleadings now require additional discovery to be given.
[4] Orders of the Court made on 31 May 2018, [4].
Detailed written submissions have been filed by the parties in relation to these applications, in respect of the hearings in May 2023,[5] May 2024[6] and August 2024.[7] Extensive oral submissions have also been made by respective senior counsel for each party at those hearings. The submissions filed by the parties and developed by senior counsel were helpful to the resolution of the issues, and I hope I do not do any of them a disservice by not reciting all of those submissions in these reasons.
[5] Mineralogy submissions dated 1 May 2023; CITIC submissions dated 15 May 2023; Mineralogy reply submissions dated 24 May 2023; and CITIC submissions in response dated 25 May 2023.
[6] CITIC submissions dated 3 May 2024; and Mineralogy submissions dated 20 May 2024.
[7] Mineralogy submissions dated 2 July 2024; CITIC submissions dated 23 July 2024; and Mineralogy reply submissions dated 1 August 2024.

B. The discovery applications

It is convenient to commence these reasons by clarifying the nature and terms of the discovery applications which remain on foot. A summary of the various categories of discovery which have been, or are being pursued, and the applications relating thereto, are set out in the table in Attachment A to these reasons.

The applications filed by the Mineralogy Parties

The Mineralogy Parties seek orders pursuant to the amended chamber summons dated 17 June 2024, filed in each action. These applications were originally filed some time ago, in January 2023, and were first addressed at a hearing in June 2023, following which the Court ordered the application be adjourned.[8] Various discovery issues were then addressed by the Court at the hearing on 21 May 2024, with discovery orders being made on 24 May 2024.[9] The balance of the discovery issues were held over and listed for hearing on 6 August 2024.
[8] Palmer v CITIC Ltd [No 9] [2023] WASC 238.
[9] Palmer v CITIC Ltd [No 11] [2024] WASC 210.
Within the Mineralogy Parties' application, the issues requiring resolution by the Court are as follows.
First, the Mineralogy Parties seek orders in both actions to require the CITIC Parties to give discovery of documents described as the 'Fulcrum Categories'. There were initially seven (7) categories of documents comprising the 'Fulcrum Categories', three (3) of which have now fallen away through agreement between the parties. I will refer to this aspect of the application as the Mineralogy Fulcrum Discovery application. The 'Fulcrum Categories' are set out in Attachment B to these reasons.
These categories are unashamedly directed at the disclosure of documents held by the CITIC Parties which would expose the CITIC Parties' consideration of the merits of previous litigation between these parties in this Court. That will naturally give rise to the question whether such material is privileged and subject to a legitimate ground for withholding the documents from production and inspection.
The foregoing matters, given the positions adopted by the parties, will require a consideration of the utility of the discovery orders which are sought and whether the effort in requiring the discovery processes to be complied with is disproportionate in the circumstances.
Second, the Mineralogy Parties also seek orders in both actions that they be discharged from giving discovery of certain categories of documents, which, broadly speaking, concern the financial position of Mr Palmer and his related entities.[10] I will refer to this aspect of the application as the Mineralogy Discovery Discharge application. The categories in question are set out in Attachment C to these reasons.

The applications filed by the CITIC Parties

[10] As noted below, one of these categories, category Q25 has fallen away.

The CITIC Parties seek orders pursuant to their chamber summons dated 30 April 2024, filed in each action. As with the Mineralogy Parties' applications, various discovery issues were addressed by the Court at the hearing on 21 May 2024, with discovery orders being made on 24 May 2024.[11] The contested categories of discovery sought by the defendants were held over for hearing on 6 August 2024.
[11] Palmer v CITIC Ltd [No 11] [2024] WASC 210.
There appears to be a question between the parties as to whether there has been proper compliance with the orders made on 24 May 2024. I was briefly referred to the affidavit of Ms Sequeira sworn 5 August 2024 and the affidavit in response of Mr Iskander sworn 6 August 2024, but this issue was put to one side at the hearing to allow further conferral between the parties.
Within the CITIC Parties' applications, the issues requiring resolution by the Court are as follows.
First, on the assumption the Court does not discharge the Mineralogy Parties from their obligation to comply with their obligation to give discovery of previously ordered categories Q25, Q26 and Q42,[12] the CITIC Parties seek orders for further and better discovery of these categories. As noted above, these categories concern the financial position of Mr Palmer and his related entities. I will refer to this aspect of the application as the CITIC Further Discovery application.
[12] Category Q25 has been superseded by the introduction of category QN25, in similar but expanded terms. I understand the CITIC Parties do not press for further and better discovery of category Q25 in the circumstances. I will in effect treat category Q25 as falling away, and on this basis will make orders to the effect that category Q25 as it previously stood is no longer the subject of an extant discovery obligation.
Second, the CITIC Parties seek orders for discovery of various new categories of documents in each action, described as QN1 to QN45 and PN1 to PN21 respectively, to supplement the discovery orders initially agreed by the parties and which were ordered to be given in September 2019. I will refer to this aspect of the application as the CITIC New Discovery application.
I will address these various applications in sequence.

C. Mineralogy Fulcrum Discovery application

The application

The Mineralogy Parties seek orders to require the CITIC Parties to give discovery of documents described as the 'Fulcrum Categories'. This is sought to be achieved by seeking an order to vacate a prior order of the Court which had excused the CITIC Parties from giving discovery of documents, and having a fresh discovery order made in lieu thereof.
The prior order of the Court was made by Kenneth Martin J on 31 May 2018, over 6 years ago.[13] In its terms, that order simply stated that the 'defendants be discharged from their duty to give discovery to the plaintiffs'.
[13] Orders of the Court made on 31 May 2018, [4].
The application is brought by way of an amended chamber summons dated 17 June 2024, filed in each action (see [3] of the chamber summons). The order is sought pursuant to O 26 r 16 of the Rules of the Supreme Court 1971 (WA) (RSC), alternatively the inherent jurisdiction of the Court. The 'Fulcrum Categories' are set out in Attachment B to these reasons. The application was originally filed in January 2023, and was addressed at a hearing in June 2023, following which the Court ordered the application be adjourned.[14]
[14] Palmer v CITIC Ltd [No 9].

The application is explained in the Mineralogy Parties' submissions dated 2 July 2024 (at [12] - [18]) and in their reply submissions dated 1 August 2024 (at [7] - [15]). The CITIC Parties' opposition to the application is detailed at [22] - [44] of their submissions dated 23 July 2024. All of these submissions were amplified by both senior counsel for the respective parties at the hearing on 6 August 2024.
The CITIC Parties rely on the affidavits of Ms Tania Cini sworn on 23 July 2024 and 2 August 2024 in relation to the application. Ms Cini is an experienced litigation partner with the law firm which represents the CITIC Parties, namely Allens.[15] I treated those affidavits as having been read on the application without objection. The substance of the affidavits was the subject of criticism from the Mineralogy Parties although not as to the experience or credentials of the deponent.
[15] I will refer to these as the First Cini Affidavit and the Second Cini Affidavit.
Prior to the hearing, the Court was informed the parties had come to an accommodation to resolve categories 1 to 3 (inclusive) of the 'Fulcrum Categories'.[16] The accommodation was sensible and I acceded to the orders proposed by the parties in this regard. The categories in question were thus ordered to be excised from the chamber summons, with orders also being made which would allow the Mineralogy Parties access to the discovery given by the CITIC Parties in action CIV 1915 of 2019 (which I have referred to in other reasons of the Court as the 2017 MCP Proceeding).[17]
[16] ts 1034 (6 August 2024).
[17] QNI Proceedings, Orders made on 5 August 2024.
It is therefore unnecessary to deal with categories 1 to 3 any further. The parties remain in dispute in relation to the fate of categories 4 to 7.

The Mineralogy Parties' position

The position of the Mineralogy Parties is straightforward.
It is said that, as the Court has concluded that the 'Fulcrum Allegations' in the pleaded replies filed by the Mineralogy Parties in both actions are arguable and should go to trial, it is now appropriate that the defendants to the actions provide discovery of documents which are relevant to those allegations.[18] It is submitted that the discovery which is sought, referred to as the 'Fulcrum Categories', is specific, targeted and proportionate, and any suggestion that the scope is unduly burdensome is disavowed by the Mineralogy Parties.[19]
[18] Mineralogy submissions 2 July 2024 [13] - [14].
[19] Mineralogy submissions 2 July 2024 [14].
The Mineralogy Parties note that they had previously foreshadowed seeking discovery of the 'Fulcrum Categories'. The Court's attention was drawn to the affidavit of Ms Tracey Robinson, the former solicitor for the Mineralogy Parties with the firm Robinson Nielsen Legal, sworn on 14 December 2022. That affidavit was sworn for the purposes of a directions hearing in the QNI Proceeding in late 2022. The affidavit attaches a letter from Robinson Nielsen Legal to Allens dated 8 December 2022, which under the heading 'The defendants should provide discovery', explained in relatively clear terms why it was the Mineralogy Parties now sought orders for discovery of these documents.
The plaintiffs submit on this application that sufficient cause exists in the circumstances to engage the power in O 26 r 16 RSC to vacate the earlier order and require that the discovery now be given.[20]

The CITIC Parties' position

[20] Mineralogy submissions 2 July 2024 [15] - [18].

The CITIC Parties' submissions highlight the ultimate test for the ordering of discovery, which travels beyond mere relevance, and directs attention to whether the discovery is necessary for fairly disposing of the proceedings, which includes considerations as to the unduly oppressive burden which discovery orders might bring.

Proportionality evaluations, the CITIC Parties' submit, are influenced by the proximity of a trial and the resourcing implications which any order will have for each parties’ preparatory burdens. The potential proximity of the trial of the Indemnity Proceedings, in the sense of a potential looming trial in late April 2025, is advanced as a relevant, and limiting, factor. It is further submitted that '[l]arge and onerous discovery obligations take time to meet and there are limits to the extent that such exercises can be expedited, even deploying significant resources to the task'.[21]
[21] CITIC submissions dated 23 July 2024 [26].
As to the proportionality considerations, the CITIC Parties submit that the subject matter of the categories 'is entirely focussed on the consideration of conduct of legal proceedings' and 'it is almost certain that any responsive document will be subject to a well-founded claim for legal professional privilege'.[22] I have been informed that documents in category 7, as now sought by the Mineralogy Parties, had previously been sought twice in the 2017 MCP Proceeding and were found by Kenneth Martin J to be privileged.[23]
[22] CITIC submissions dated 23 July 2024 [30].
[23] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 13] [2022] WASC 475, [31] – [32], [40], [47] and [73].
Fundamentally, the CITIC Parties submit that if documents responsive to these categories are privileged, any forensic benefit that might be obtained by the plaintiffs from the CITIC Parties having to discover the documents 'would be disproportionate to the timely and effective disposal of the proceedings'.[24]

The evidence

[24] CITIC submissions dated 23 July 2024 [31].

The evidence upon which the CITIC Parties rely to justify their resistance to the orders is found in the affidavits sworn by Ms Cini. Given the contest between the parties, I will need to take a moment to summarise the salient material in those affidavits, and I will address the criticisms of this material in due course.
In summary, Ms Cini deposes to the following matters in her two affidavits:
1.Ms Cini explains that she caused a preliminary review of a sample set of potentially responsive documents to categories 4 to 7 of the 'Fulcrum Categories' to be undertaken by a team of lawyers at Allens, also using the firm's Integrated Legal Solutions team.[25]
[25] First Cini Affidavit [19].
2.The review was conducted in relation to a database of documents maintained by Allens, consisting of documents provided by the CITIC Parties 'in connection with various legal proceedings involving the CITIC Parties and Mineralogy and/or Mr Palmer'. The database contains over 2 million documents.[26]
[26] First Cini Affidavit [20].
3.Using initial search terms, a pool of responsive documents was identified, from which a randomised sample of 2,000 documents was selected. A review team undertook the review of this sample, including coding the documents for relevance and privilege.[27] A second level of review was also undertaken, using more senior lawyers.[28]
[27] First Cini Affidavit [21] - [25].
[28] First Cini Affidavit [26].
4.Ms Cini deposes that the review process identified 27 documents out of the 2,000 documents (or 1.35%) as being potentially relevant to categories 4 to 7. To clarify this, Ms Cini deposes in her second affidavit that 1,973 documents were thus coded as 'not relevant' or not responsive.[29]
5.Of the 27 documents identified through the review processes, each of them was identified as being subject to legal professional privilege.[30] Ms Cini explains this means that each relevant document was identified as a confidential document or a communication which was prepared for either the dominant purpose of seeking legal advice or providing or recording legal advice to one or more of the CITIC Parties, or for anticipated or actual litigation involving the CITIC Parties.[31]
6.In her second affidavit, Ms Cini clarifies that she personally reviewed each of the 27 documents and determined that each of those documents was potentially relevant to these categories and subject to legal professional privilege.[32]
7.Ms Cini has estimated that the process for giving discovery in respect of categories 4 to 7 would take approximately 3 months, requiring a review of around 30,000 documents, based on certain assumptions and having regard to her experience in such matters.[33] Ms Cini specifically deposes to the additional time involved in a review of the documents in the present context, as follows:[34]
[29(c)]An assessment of whether a document is responsive to Categories 4-7 requires an unusually high level of engagement by the reviewer with the content of the document and knowledge of the defences and claims made in the various proceedings. The assessment process is therefore not straightforward. For this reason, the anticipated review speed is lower than in other discovery reviews I have overseen and scaling up the review team may present challenges
[29(d)]In my experience, where the relevance rate in a review pool of documents is very low, as appears to be the case here, the review process is generally less open to e-discovery analytics tools and solutions to improve efficiency of the review.

The issues requiring consideration

[29] Second Cini Affidavit [7].

[30] First Cini Affidavit [26].

[31] First Cini Affidavit [27] - [28].

[32] Second Cini Affidavit [9].

[33] First Cini Affidavit [29]

[34] First Cini Affidavit [29].

The issues which arise in relation to this aspect of the application are, first, whether the Court has power to vacate the previous orders of the Court, second, whether sufficient cause has been shown to exercise that power, and, lastly, whether the fresh discovery orders should be made requiring discovery of categories 4 to 7 of the 'Fulcrum Categories'. This last issue requires consideration of the discretionary objections raised by the CITIC Parties.

Disposition - power to vacate prior orders and exercise of that power

As to the first question, I am satisfied I have power to vacate the prior order made by the Court. The Court has that power by reason of O 26 r 16 RSC and I did not understand the CITIC Parties to submit otherwise. The power in O 26 r 16 RSC is not to be read down and should be given its natural and ordinary meaning.[35] The rule is in the following terms:
Revocation and variation of orders
Any order which has been made under this Order, including an order made on appeal, may, on sufficient cause being shown, be revoked or varied by a subsequent order or direction of the Court made or given at or before the trial of the cause or matter in relation to which the original order was made.
[35] Bidvest Australia Ltd v Auzcorp Pty Ltd [No 2] [2017] WASCA 23 [35] (Martin CJ, Newnes and Murphy JJA).
I have had previous cause in the course of the present actions to address the scope of this rule. I refer to and incorporate my earlier observations without repeating them.[36]
[36] Palmer v CITIC Ltd [No 9] [16] - [18].
The express power in the rule requires that 'sufficient cause' be demonstrated before the power is engaged. I am satisfied the circumstances of this application demonstrate sufficient cause to revoke the earlier order. That order was made many years ago, when the Indemnity Proceedings presented with a very different complexion. The issues in the actions have morphed substantially over the past 6 years, with significant modifications to the pleadings. The pleadings so far as they relate to the Fulcrum Allegations are explained in the Court's earlier reasons.[37]
[37] Palmer v CITIC Ltd [No 7] [2023] WASC 202 [39] - [50]; Palmer v CITIC Ltd [No 12] [58].
The modifications are such that, in the ordinary cause, it would be appropriate to now consider whether discovery orders should be made as against the defendants to the actions. The fact an interlocutory order was made in 2018 to suspend the discovery obligations of one set of parties, which order was then appropriate and properly made, should not stand in the way of the Court giving contemporary consideration to the making of fresh discovery orders, whether or not the prior order was made with the consent of the parties. The Court's experience is that in long running complex litigation there is not merely one occasion for the Court to make discovery orders for the life of the action. It is open for the discovery regime to be revisited where necessary.
In my view, the power in O 26 r 16 RSC is engaged and should be exercised. I will order that the prior order made on 31 May 2018 be revoked.

Disposition - whether to order that discovery now be given

That leaves for consideration the third issue identified at [37] above, namely whether the Court should exercise the power to order that discovery of Fulcrum Categories 4 to 7 be given by the CITIC Parties. This will require a consideration of the points of resistance which have been outlined by the CITIC Parties.
I apprehend the power sought to be exercised on the application is found in O 26 r 7(3)(b)(i) RSC, or the inherent power of the Court. The Court has power pursuant to this sub-rule to order a party to give discovery of specified classes of documents, or documents relating to any specified matter in question. An affidavit in support of such an application is not necessary: O 26 r 7(2) RSC. Fundamentally, a balancing exercise is called for in respect of the power to order that discovery be given.[38]
[38] Gething M, Curwood M and Joseph R, Civil Procedure : Western Australia (vol 1), [26.7.1] and [26.7.2].
The documents sought by the Mineralogy Parties are, on any view, likely to be relevant to the matters in issue in the actions. This is at least evident from the cross-referencing to the relevant paragraphs of the pleadings which I have included adjacent to each of the 'Fulcrum Categories' in Attachment B to these reasons.
For example, category 4 is directed at documents recording or referring to the consideration by the CITIC Parties of the merits of their defences in the proceeding before Edelman J which was commenced in 2012 and determined by his Honour in 2013, namely CIV 2338 of 2012 (which is referred to by the parties as the RCA Proceeding). The subject of the CITIC defences in the RCA Proceeding is addressed in at least two paragraphs of the Mineralogy Parties' reply, as pleaded in the QNI Proceeding:
(a)the Mineralogy Parties plead that the CITIC Parties had no genuine belief in their purported defence in the RCA Proceeding, but maintained those defences to achieve the 'Fulcrum Purposes';[39] and
(b)the Mineralogy Parties plead that Sino Iron and Korean Steel made the contentions in the RCA Proceedings to effect the 'Fulcrum Purposes', to apply commercial pressure on Mineralogy, to alter the CITIC Negotiated Agreements and to delay payment of sums to which Mineralogy was entitled.[40]
[39] QNI Reply [87].
[40] QNI Reply [89].
I did not understand the CITIC Parties to suggest that relevance, whether direct or otherwise, was an obstacle to the orders sought.
That being so, it is necessary to turn to the contentions raised by the CITIC Parties by which the orders are resisted.
The first of the resistance points, to which I have earlier referred, is that the orders should not be made when it is apparent that any responsive document to the categories will be subject to a well-founded claim for legal professional privilege. The CITIC Parties point to the trouble which will be involved in 'listing, considering, and fighting about privilege', which it is said will be disproportionate to the timely and effective disposal of the proceedings. This will be the case, it is said, even if a sample approach to the contest is taken.[41] Disputes as to privilege issues can occupy additional court resources, in terms of additional hearings and potentially additional judicial resources to hear the matter.
[41] CITIC submissions [30] - [34].
The approach to be adopted to the determination as to whether discovery should be ordered, and in crafting the terms on which that discovery should be ordered, including its scope, requires a consideration of the principles enunciated in O 1 r 4A and O 1 r 4B RSC. Indeed, O 26 r 7(3) RSC expressly states that the court is to have regard to O 1 r 4B RSC.
These rules are focused on the elimination of delays in the progress of matters to a final trial, ensuring that the court's procedures, and the associated costs to the parties and the State, are proportionate to the value, importance and complexity of the subject matter in dispute, and those procedures, and the associated costs to the parties, are proportionate to the financial position of each party. These considerations are applicable whether the litigants are individuals, modestly-sized organisations, or well-resourced and experienced corporate litigants, though the application of the rules may need adjustment depending on the circumstances.
The principles which should guide the Court in the exercise of the discretionary power to make discovery orders can be found in the decision of the former Chief Justice of this Court, in Roe v State of Western Australia,[42] and the present Chief Justice, in Maek Pty Ltd v Ibrahim.[43] I respectfully endorse their statements of the principles, without repeating them, although I should make specific reference to the notion of proportionality, as to which Martin CJ stated:[44]
Those principles include and expressly embody the notion of proportionality, which requires a court, before ordering any interlocutory process, to assess whether the forensic benefit to be derived by that process is proportional to the cost and delay which will flow from the undertaking of the process, having regard to the value importance and complexity of the subject matter in dispute and the financial position of the parties.
[42] Roe v The State of Western Australia [2013] WASC 130 [10] - [11] (Martin CJ).
[43] Maek Pty Ltd v Ibrahim [2022] WASC 285 [25] - [27] (Quinlan CJ).
[44] Roe v The State of Western Australia [10] (Martin CJ).
The view I have reached having regard to the above principles is that the grounds upon which the CITIC Parties seek to resist the orders for discovery of these categories are not sufficient to justify the Court refusing to make discovery orders in respect of categories of documents which the Court can be satisfied are likely to be relevant, indeed directly relevant, to the issues requiring resolution at trial. I have reached this conclusion for the following reasons.
First, as to matters of principle, I recognise the exercise of the discretion to order that a party give discovery is subject to a proportionality assessment, as I have noted above. That must be weighed against the likely relevance of the documents and their importance to the resolution of the issues in the litigation, among other matters.
Steps in commercial litigation should not be ordered by the Court merely because there is power to order those steps and, in the context of discovery processes, merely because the documents sought will or would satisfy the test for relevance.
Where the benefit of the step or workstream relative to the ultimate resolution of the issues is wholly disproportionate, the modern approach to the exercise of curial powers in litigation, particularly as to discovery obligations, is to carefully consider whether restraint is required, and questions of cost and delay must be borne in mind.
Second, when applying these matters of principle to the case at hand, the manner in which the criterion of 'proportionality' is to be applied should be carefully considered. In the context of the present litigation between these well-resourced parties concerning extremely large damages claims, the refrain of 'proportionality' has been deployed on several occasions, by both parties, during the period in which I have managed the actions. This concept requires some scrutiny to ensure it is applied fairly across the issues and the applications in these actions.
Proportionality is not a concept to be assessed in a vacuum. The task or step is to be assessed or weighed against something. Among the things identified in O 1 r 4B RSC is the examination as to whether a particular procedure to be imposed, and the costs of that procedure, are proportionate to the (i) value of the subject matter in dispute; (ii) the importance of the subject matter in dispute; and (iii) the complexity of the subject matter in dispute.[45] Further, the rule directs the Court to give attention to whether the particular procedure and its cost to the parties are proportionate to the 'financial position of each party'.[46]
[45] O 1 r 4B(1)(e) RSC.
[46] O1 r 4B(1)(f) RSC.
These considerations must be weighed together with the other matters identified in the Rules, including the efficient disposal of the litigation and the efficient use of the Court's resources.
Third, where affidavit material is adduced to support the exercise of the discretion as to the making of discovery orders, the force of that evidence requires a degree of evaluation. The Court is not duty bound to accept uncritically as accurate every aspect of an affidavit tendered to the Court.[47] The Court is entitled to give careful consideration even to unanswered affidavits, particularly those which depose to matters that the opposing party may have some difficulty in challenging on a factual level, such as where the parties stand in a position of information asymmetry.
[47] Gething M, Curwood M and Joseph R, Civil Procedure : Western Australia (vol 1), [14.4.1]; Eng Mee Yong v Letchumanan [1980] AC 331; [1979] 3 WLR 373; and Manton Enterprises Pty Ltd atf GPK No 2 Trust v LT Market ST Pty Ltd [2021] WASC 4 [23].
The Mineralogy Parties have criticised the sufficiency of Ms Cini's affidavits. For example, it is said that the origin and composition of the database in question has not been explained. It is also submitted that the search terms deployed by Ms Cini and her team have not been identified.[48]
[48] Ts 1037 - 1038 (6 August 2024).
I do not accept these criticisms.
On my review, the matters deposed to by Ms Cini which I have summarised above make rational sense, given the nature of the task which I apprehend would be involved in this documentary review process. I am satisfied Ms Cini has adequately explained the process which has been undertaken, and the manner in which documents were coded for relevance. As to the coding for relevance which was undertaken, this appears from [21] and [22] of the First Cini Affidavit, in which Ms Cini deposes that search terms were structured with respect to categories 4 to 7 to identify 'potentially responsive documents'.
I therefore accept the evidence of Ms Cini and her assessments as to the likely resources required for the discovery process to be undertaken in respect of the 'Fulcrum Categories'. Further, I accept her evidence that most of the documents which are likely to be captured by the categories will be subject to claims for privilege. It is difficult to conclude at this stage that all documents captured by the categories will be subject to claims for privilege and indeed impossible for the Court at this stage to conclude that all of those claims for privilege will be beyond any legitimate challenge or will be upheld.
Fourth, the costs and potential delays must be weighed against the forensic benefit to be achieved by the discovery order. I cannot say, at this stage, that the discovery process and the work required to mount privilege claims will deliver no forensic benefit in this litigation.
It is at least possible that, once the defendants attend to their discovery obligations and closely assess their claims for privilege, discovery is in fact given of documents which are not the subject of any such claims, and those documents are then produced to the plaintiffs. That would deliver a measure of forensic benefit and might assist in the resolution of the issues at trial.

Another scenario, which I cannot discount, is that the defendants make claims for privilege to resist production of certain documents which are ordered to be discovered, but those claims are challenged and the privilege claims are not upheld. That process would also deliver a measure of forensic benefit and might assist in the resolution of the issues at trial.
It is also possible to envisage a scenario in which all documents captured by these categories are the subject of claims for privilege, which the Mineralogy Parties ultimately accept are valid, leading to no production of documentary material. But that is, as I have noted, not the only possible outcome of this process.
The process of identifying and describing the claims for privilege may (as often happens in commercial litigation) give rise to disputed issues between the parties. Senior counsel for the Mineralogy Parties put the matter this way:[49]
But we do not accept, and nor should the Court accept that any responsive document will meet the dominant purpose test, particularly documents recording CITIC's consideration in the nascent stages of the dispute, and, finally, that the existence of an arguable, even decent claim for privilege does not deny the utility of discovery. Part of the discovery process is the verification of claims of privilege on affidavit, along with particulars of the document and the privilege claim to enable the opponent to determine whether to challenge the claim.
[49] ts 1035 (6 August 2024).
Fifth, I accept the submission advanced by the CITIC parties that the processes of discovery and production should not be assessed in isolation and to do so would be artificial. In support of this proposition, reliance was placed on the observations of Rangiah J in Mentink v Minister for Justice[50] where in his Honour stated:
[56]A strict distinction between the objectives and processes of discovery and production is artificial. The two are interrelated and there may be no point in a judge exercising his or her discretion to order discovery if strong grounds exist for resisting production.
[50] Mentink v Minister for Justice [2016] FCA 432.
That point may be accepted. But it should not be elevated to a point of principle, and I do not consider his Honour was intimating that it should be. It remains to consider on a case by case basis whether discovery should be ordered and, as the CITIC Parties themselves have pointed out, one of the reasons for ordering discovery in the face of an identified privilege claim is the evident need to allow the privilege claim to be tested.[51] The CITIC Parties placed reliance on the decision of Acting Master Strk (as her Honour then was) in City of Bayswater v Viva Energy Australia Pty Ltd [No 2],[52] in which her Honour observed that the hearing of an application for further discovery was 'not the appropriate juncture to determine a claim for privilege'.
[51] CITIC submissions 3 May 2024 [55].
[52] City of Bayswater v Viva Energy Australia Pty Ltd [No 2] [2022] WASC 384 [76] - [78].
Sixth, I do not assess the approach of Quinlan CJ in Maek v Ibrahim as standing in the way of the making of such an order in the present case. The CITIC Parties relied on this authority by way of analogy. Of course, the principles expressed by his Honour in that case can be accepted, but it should be emphasised that, on the facts of that case, the Court was readily able to determine that the benefits to the litigation which might flow from making the order were speculative.
In Maek v Ibrahim, the Court was addressing an application for discovery orders which would have involved the provision of duplicate discovery from a party (being the employee), where discovery had been or was going to be made in identical terms by another party (being the employer). Quinlan CJ ultimately refused to make the order which was sought, and concluded that:[53]
[29]The process of discovery by Sultan Ibrahim [the employer], if it is conducted properly, including with appropriate inquiries, should yield the same documents as those sought to be discovered by Mr Henry [the employee].
[53] Maek v Ibrahim [29].
His Honour recognised there might be some benefit in ordering that two related parties in an action give discovery of precisely the same categories of documents, but formed the view on the materials before the Court that the potential forensic benefit was, to a large degree, speculative.[54]
[54] Maek v Ibrahim [32].
In light of the apparent cost and delay that would be occasioned by making a duplicative discovery order, his Honour declined to make the order in the exercise of his discretion. His Honour concluded that the costs and delay would be wholly disproportionate to whatever forensic benefit might be derived by making an order that required the employee to also give discovery.
In contrast, the Court is not presently concerned with a case in which discovery has already been given of the 'Fulcrum Categories' by any party (not will it otherwise be given). This is not a case concerned with the making of duplicative discovery orders. The question is whether the CITIC Parties should be ordered to give such discovery, where that discovery is relevant to the assessment of the 'Fulcrum Purposes' and those parties are the principal repository of that material. The potential forensic benefit of the order to the current proceedings cannot be described as speculative.
Seventh, in weighing up the competing considerations, whilst I recognise there are costs and issues of delay involved, I do not conclude that they would be wholly disproportionate to the forensic benefits to be gained from making the order, or even merely disproportionate. That assessment is difficult to make before the claims of privilege are formally made and tested, but doing the best I can at present, that is the conclusion I reach. When viewed against the criterion of proportionality, I consider the value, importance and complexity of the subject matter, which involves indemnity claims seeking billions of dollars, does not point against the making of the order, and nor does the financial position of the parties, who are both undoubtedly well-resourced and experienced litigants.
In the present context, I am therefore not satisfied that resorting to notions of proportionality ought preclude the making of discovery orders in respect of documents which the Court can be satisfied are likely to be relevant, indeed directly relevant, to the issues requiring resolution. The work and cost involved in the process appears proportionate to the nature and importance of the issues arising, the relief sought in this litigation, and the financial position of these parties.
In my view, the categories of documents sought by the Mineralogy Parties, identified as categories 4 to 7 of the 'Fulcrum Categories', are relevant and should be ordered, notwithstanding the CITIC Parties' position that those documents are likely to be subject to claims for privilege.

Disposition - scope of the categories

There are some additional matters to consider concerning the scope of the categories. My views on these issues are as follows.
First, the scope of the categories should be clarified by inclusion of the definition as to the term 'CITIC Parties' and I accept the submission of the CITIC Parties in this regard.
Second, there is a question whether the categories should be temporally limited.
As to categories 4 and 5, those categories seek documents concerning the consideration of the defendants' defences to the claims in certain proceedings, being CIV 2338 of 2012 and CIV 1808 of 2013. The CITIC Parties say that each category should be limited to documents created on or after the day of commencement of the litigation, in general terms. That is a reasonable limitation to impose. I accept there may have been some consideration of the likely defences of these parties in the lead up to the litigation, but I infer that the more fulsome analysis, and the analysis which is likely to have examined the defences of the defendants by reference to the pleaded claims, is likely to have been undertaken once the proceedings were commenced and the lines of battle were drawn by the plaintiffs.
The limitations proposed by the CITIC Parties should thus be included (both as to the start date and the end date for the categories). Narrowing categories 4 and 5 in this manner, by imposing temporal limitations of the type suggested by the CITIC Parties, is not likely to undermine the utility of these categories.
As to categories 6 and 7, the temporal limitations proposed by the CITIC Parties are somewhat different, respectively focused on the date the proceeding was commenced and the date of the tenure request. Given the nature of these categories, I consider these temporal limits are unduly narrow.
As to category 6, as this category concerns the merits of the claims brought by the CITIC Parties (rather than, as I had initially and incorrectly apprehended, their pleaded defences), I accept the submission of the Mineralogy Parties that the start date should precede the date the litigation was commenced. The period proposed by the Mineralogy Parties (around 3 years) is far too broad, though. I will fix a date which is one year before the commencement of the litigation, namely 19 October 2017, noting that the proceedings in question were first commenced in the Federal Court on 19 October 2018.
As to category 7, the temporal limitation should be the date of the tenure request, which is 29 March 2018. This allows for a reasonable period of time prior to the abandonment of the requests, which were made during the course of the proceedings.
The temporal limitations identified above are appropriate and should be imposed.

D. Mineralogy Discovery Discharge application

The application

The Mineralogy Parties seek orders to vary previous discovery orders to discharge them from giving discovery of categories Q26 and Q42 in the QNI Proceeding (with category Q25 having fallen away). These categories require that discovery be given as to, broadly speaking, the financial position of Mr Palmer and his related entities.
The categories in the Palmer Petroleum Proceeding which are sought to be discharged are P28 and P44.

The position of the parties

In essence, the Mineralogy Parties maintain their applications to be discharged from giving discovery of the categories which pertain to the financial position of Mr Palmer and his related entities by reason that they accept in their pleadings, for the purposes of this litigation, that they could have provided the requisite funds to QNI or to Palmer Petroleum.[55] Further, discovery of documents relating to the financial reserves of Mr Palmer and Mineralogy would amount to a fishing expedition, it is said, and in any event the costs and delay involved would be disproportionate to the real issues in dispute.[56]
[55] Mineralogy submissions 2 July 2024 [7].
[56] Mineralogy submissions 2 July 2024 [8].
In the earlier submissions filed by the Mineralogy Parties in May 2023, the position of those parties was put as follows:[57]
[17]Axiomatically, the parameters of discovery are defined by what is relevant in the proceeding, which in turn is defined by the facts put in issue by the parties through their pleadings. The foregoing [review of the pleadings] demonstrates that the financial capacity of Palmer and entities related to him to meet QNI’s and Palmer Petroleum’s funding requirements is no longer in issue across the pleadings. It follows that there is no longer a proper justification for the plaintiffs to give discovery of those matters.
[57] Mineralogy submissions 1 May 2023 [17].
Additional points in support of the application were made by the Mineralogy Parties as to the invasive nature of discovery, including that it extend to documents held by non-parties to the litigation, and that it seeks commercially sensitive material. I have recognised the validity of these considerations in previous reasons concerning discovery in these actions.[58] That said, no affidavit material has been filed to verify these matters, so the assessment of the sensitivity of the material (and the related issues) is ultimately confined to the inferences which can be drawn from the pleadings and nature of the businesses operated by the Mineralogy Parties.
[58] Palmer v CITIC Ltd [No 11] [97] - [99]
The CITIC Parties accept that the Mineralogy Parties have admitted their capacity to provide funds to the entities in question. Yet, it is said this misses the point. Documents relevant to Mineralogy's capacity to direct funding to QNI and Palmer Petroleum at certain times remain relevant, it is submitted, to enable the CITIC Parties to test whether the alleged loss is 'in relation to' the late payment of the Royalty Component B (or RCB) amounts and whether Mineralogy 'would have' provided funding to QNI and Palmer Petroleum as is alleged by the plaintiffs.[59]

Disposition

[59] CITIC submissions dated 23 July 2024 [11].

Discovery categories Q26 and Q42 in the QNI Proceeding, and discovery categories P28 and P44 in the Palmer Petroleum Proceeding, were ordered to be given by Kenneth Martin J in October 2019. Those orders have not been complied with by the Mineralogy Parties. There has been no explanation on affidavit for this past failure.
Not until January 2023 did the Mineralogy Parties file applications seeking to discharge these discovery orders. The discharge applications are based on amendments introduced to the statements of claim in each action,[60] which are said to effectively amount to demurrers, and which are said to have the effect of rendering these categories as irrelevant.[61]
[60] Through, at least, the seventh iteration of the statement of claim in the QNI Proceeding, the viability of which the Court upheld in November 2023: Palmer v CITIC Ltd [No 10] [5]. The seventh iteration of the pleading was described as the Sixth Amended Statement of Claim. Additionally, I had earlier upheld the viability of the amendments to the statement of claim in the Palmer Petroleum Proceeding, in the form of the Third Amended Statement of Claim: Palmer v CITIC [No 8] [2023] WASC 221 [111].
[61] Mineralogy submissions dated 20 May 2024 [13], [14] and [15].
The Mineralogy Parties have drawn the Court's attention to the pleas at [27AB(d)(i)], [27AC(b)(i)] and [1AA(e)] of the QNI Reply, and the equivalent pleas in the Palmer Petroleum Reply at [23G(f)(i)], [23G(i)(i)] and [1AA(g)].
The plaintiffs accept, for the purposes of the litigation, that Mr Palmer could have provided other funds to QNI to enable it to continue to manage and operate the Joint Venture Business (and similarly, so too could Mineralogy in the case of Palmer Petroleum).
The plaintiffs further accept that funds for QNI's working capital deficit (and Palmer Petroleum's funding requirements) would have come from Mineralogy's income generating activities.
There is a further plea in the actions, arising from a proper construction of the FCD itself, by which the plaintiffs assert they were not required to restructure their affairs to accommodate the CITIC Parties' 'persistent breaches of contract'.[62]
[62] Mineralogy submissions dated 20 May 2024 [15].
When reviewing the foregoing pleas, one should not lose sight of the allegation in the statements of claim in both actions, which reveal the nature of the cases advanced by the Mineralogy Parties. In the QNI Proceeding, it is pleaded that, if the RCB payments had been made, Mineralogy 'would have' provided funds to QNI to enable it to continue to manage and operate the joint venture business, including providing to QNI the funds required to meet the cashflow deficit: see [44A] of the 7ASOC.
Further, the pleadings of the CITIC Parties are relevant to the analysis and determination of the present discharge application. These pleadings were addressed in some detail in the Court's earlier reasons by which I dismissed the strike-out application against the QNI ASD.[63] I will not repeat them verbatim. In summary:
(a)At [44A] of the QNI ASD, the CITIC Parties plead that if the RCB payments had been made to the Mineralogy Parties, Mr Palmer would still have made 'Palmer's Own Decision' and Mineralogy would not have provided funds, including the RCB payments, for the continued operation of the joint venture business.
(b)The CITIC Parties' response is also evident from the terms of [50(g)(viii)] and [50(g)(ix)] of the QNI ASD, which expressly assert that: (a) Mr Palmer used, or caused to be used, significant sums from the joint venture business to fund other Palmer-related investments, including during periods when the joint venture business was loss making and cash flow from operating activities was negative; and (b) there was a course of conduct by which Mr Palmer caused QNI to make significant payments that were not for the purposes of the joint venture business, including during periods when the joint venture business was loss making and when cash flow from operating activities was negative.
(c)Further, the CITIC Parties plead within [50A] of the QNI ASD that there were various actions which Mr Palmer could have taken, but which it is alleged he did not, in support of the contention that a course of conduct was demonstrated on the part of Mr Palmer.
[63] Palmer v CITIC Ltd [No 13] [95] - [100] and [101] - [108].
The pleas in the Mineralogy Parties' replies in each action assist to narrow the matters in issue in the proceedings, at least somewhat, but it cannot be said that the financial position of the Mineralogy Parties (and their related entities) during the critical period has thereby been eliminated as an issue for trial. I recognise there is a plea advanced by the plaintiffs to the effect they were not required to restructure their affairs, but the existence of such a plea does not remove or render irrelevant the defendants' competing contentions. One of those is that the alleged losses are not covered by the indemnity in the FCD where, it is alleged, Mineralogy and/or Mr Palmer could have provided that funding from other sources.
I am not satisfied that the various admissions in the pleadings upon which the Mineralogy Parties rely are sufficient to constitute demurrers to the responsive allegations which are raised by the CITIC Parties as part of their suite of defensive responses to the claims.
As the pleadings presently stand, documents relating to the financial capacity of the Mineralogy Parties (and their related entities) remain relevant to the matters in issue. In particular, I accept the submission of the CITIC Parties that documents relevant to the capacity of the Mineralogy Parties to direct funding to QNI and to Palmer Petroleum at certain times, remains relevant.
This material will potentially enable the CITIC Parties to test whether the alleged loss is 'in relation to' the late payment of the RCB amounts and whether Mineralogy 'would have' provided funding to QNI and Palmer Petroleum, as is alleged by the plaintiffs. The asset position of the Mineralogy Parties and the value of those assets is likely to be relevant to the question as to whether and how the Mineralogy Parties might have provided funds to support QNI and Palmer Petroleum, which I see as being a relatively central issue in the proceedings.
I expressed views to the effect that such matters were relevant and would fall for determination at trial in my earlier reasons addressing the pleadings in these proceedings:[64]
[68]At this interlocutory pleading stage, the court cannot form any assessment as to the precise correlation between the inflow of funds to Mineralogy and the outflow of funds from Mineralogy, including the payments needed to be made to QNI to avoid its demise. That analysis cannot be undertaken at a desktop level. Thus, while I have found the timeline prepared by the defendants to be helpful to contextualise the events (see Annexure B to their submissions), I am unable to form the view having regard to that timeline that the case as pleaded is logically unsustainable.
[69]I recognise the asserted evidentiary speedbumps which lie ahead for the Mineralogy Parties, as identified by the CITIC Parties, both in terms of proving the necessary causal link between the asserted breach and the claimed loss, and in terms of the operation of cl 9.1(e) of the FCD which requires a party claiming the benefit of the indemnity to take all reasonable steps to minimise and where possible avoid any loss or damage suffered by it. However, these are matters for trial in my view, and I am not presently satisfied these asserted speedbumps are insurmountable so as to conclude the pleading is untenable, particularly bearing in mind the size and regularity of the RCB payments, relative to the cashflow shortfall of QNI.
[70]These are all matters which will need to be the subject of lay and expert evidence in due course, with particular regard to the timing of the RCB payments, the sources of funding reasonably available to Mineralogy and Mr Palmer, the working capital and cashflow requirements of QNI, the timing and connection between the assumed RCB payment inflows and the requirements of QNI, and the other purposes to which the RCB payments were required to be put by Mineralogy (or would have been put by Mineralogy)
[64] Palmer v CITIC Ltd [No 10] [68] - [70].

I continue to adhere to those views.
I therefore do not accept that the changes to the pleadings provide an adequate justification for the Mineralogy Parties to be discharged from the orders previously made by Kenneth Martin J, as to categories Q26 and Q42 in the QNI Proceeding, and P28 and P44 in the Palmer Petroleum Proceeding.
I would therefore dismiss the Mineralogy Discovery Discharge application.

E. CITIC Further Discovery applications

Given the conclusion I have reached in relation to the Mineralogy Discovery Discharge application, I can address the CITIC Further Discovery application in brief terms. The applications are logically tied together.
No affidavit evidence has been adduced by the Mineralogy Parties to provide evidentiary support for the concerns they have expressed as to the disproportionate nature of the discovery exercise, insofar as these categories are concerned, or to justify the exercise of the Court's discretion to refrain from ordering further discovery of previously ordered categories which, in my view, remain relevant on the pleaded cases. The Mineralogy Parties have undoubtedly had adequate time to put on such material.
Absent such material, the ability of the Mineralogy Parties to resist the order for further discovery largely relies on inferences to be drawn and, it must be said in the circumstances, my assessment is that there is very little force in the opposition to the orders.
Further, it is not in dispute that the Mineralogy Parties have failed to provide discovery in accordance with these categories. That is, no discovery has been given.[65] This is not a case where questions of degree or sufficiency of discovery are under assessment. The Mineralogy Parties are not maintaining that they have provided sufficient discovery to date, or that the 'cupboard is bare'.
[65] CITIC submissions dated 3 May 2024 [50].
I am comfortably satisfied the requirements for the making of orders pursuant to O 26 r 7 (3) are satisfied, and the orders sought by the CITIC Parties in respect of these categories should now be made (being the categories described in Attachment C to these reasons).
To be clear, the court has reasonable grounds for being fairly certain that the documents in these classes exist (indeed, the orders were initially made largely by the agreement of the parties), the documents are relevant (as I have explained above), and they ought to have been disclosed pursuant to the earlier orders of the Court.[66]The making of such orders is necessary in order to fairly dispose of the proceedings, for the reasons I have earlier articulated.
[66] Relaying upon the principles expressed in Perpetual Trustees Co Ltd v Burniston [2012] WASC 26 [20] - [25] (Edelman J).

F. CITIC New Discovery application

I turn now to the CITIC New Discovery application.
The CITIC Parties seek orders for discovery of various new categories of documents, described as QN1 to QN45 in the QNI Proceeding and PN1 to PN21 in the Palmer Petroleum Proceeding, to supplement the discovery orders initially agreed by the parties and which were ordered to be given in October 2019. The application was supported by the affidavits of Mr Blaxill sworn on 21 July 2023, 27 July 2023 (being the supplementary affidavit of that date), and 3 May 2024. I refer in particular to [22] and [23] of the last of these affidavits and the documents referred to therein.
This application was the subject of the hearing before the Court in May 2024 and was held over for further hearing on 6 August 2024.
The CITIC Parties prepared Redfern Schedules to assist in the efficient consideration of the discovery categories, given the large number of the categories in dispute. The Redfern Schedules are attached to these reasons as Attachment D and Attachment E, relating respectively to the QNI Proceeding and the Palmer Petroleum Proceeding.
In determining the disputes on the categories in the Redfern Schedules, in addition to the written and oral submissions of the parties, I have had regard to the helpful aides memoire prepared by the CITIC Parties dated 5 August 2024, which grouped the categories by common subject matter and by common objection.
The Court's short form rulings on the disputed categories (and any amendments to those categories) are detailed within the Redfern Schedules which are attached to these reasons. To supplement those schedules, I make the following observations:
(a)One of the thematic grounds of objection raised by the Mineralogy Parties is that insufficient cause had been demonstrated by the CITIC Parties to justify the making of fresh orders for discovery, having regard to the comprehensive regime of discovery orders made by the Court in October 2019. Insofar as the new categories represent variations or modifications to the earlier regime, I am of the view that sufficient cause has been demonstrated, and the power in O 26 r 16 RSC has been engaged, by reason of the changes to the pleadings in the actions or by reason that the further category has arisen through a development in the proceeding, such as by reference to discovery which has been provided. In any event, the Court has power to order further and better discovery pursuant to O 26 r 6(1) RSC or in the exercise of the Court's inherent jurisdiction, as well as O 26 r 7(3) RSC.
(b)Further to the point just discussed, having reviewed the Court's record as to the orders made in October 2019, I must say I cannot discern an objective intention to the effect that those orders would be the sole discovery regime in this case. For my part, I would not consider it unusual for a discovery regime orders towards the commencement of complex commercial proceedings to require a degree of supplementation later in the life of the proceedings, as the pleadings evolve, as initial tranches of discovery are reviewed, and as the parties and counsel refine the focus of their attention on the issues in dispute.
(c)Another of the thematic grounds of objection raised by the Mineralogy Parties is that the financial capacity of the Mineralogy Parties (and their related entities) are not matters in issue. The plaintiffs point to their admissions in the reply pleadings, among other matters, to support this objection. I have addressed this contention earlier in these reasons, in the course of dealing with the Mineralogy Discovery Discharge Application (at [95] and following).
(d)There are some indications in the grounds of objection, as appears within the Redfern Schedules, to the commercially sensitive nature of certain of the documents which may be caught by the CITIC New Discovery application. As I have noted in the Redfern Schedules, in the absence of affidavit evidence to make good these objections, I do not regard this ground of objection as being sufficient to preclude the making of discovery orders with respect to otherwise relevant documents. Any issues of commercial sensitivity can be dealt with as part of the current confidentiality regime or by seeking variations to that regime.
(e)The Mineralogy Parties resisted some of the categories in the CITIC New Discovery application on the basis that the pleadings had not closed or that the relevant pleadings were the subject of a pending strike-out application. Those grounds have, in effect, fallen away as the strike-out application was dismissed[67] and the pleadings have now closed.
(f)Finally, in considering the CITIC New Discovery Application, it is appropriate for the Court to recognise the objects in O 1 r 4B RSC, both at a category specific level, but also in a more holistic sense. I have explained my approach to the balancing of these objects earlier in these reasons, in particular as to the proportionality considerations which the parties have highlighted. I am satisfied the discovery which is now to be ordered is consisted with these objects. in certain respects, I have proposed the categories be amended to narrow their scope.
[67] Palmer v CITIC Ltd [No 13] [111].

G. Conclusion and orders

On 13 September 2024, I made orders to dispose of the Mineralogy Fulcrum Discovery application and the Mineralogy Discovery Discharge application. My reasons for making those orders are set out above at [20] to [110]. On 18 September 2024, I varied those orders as a result of a typographical error being identified in relation to Fulcrum Category 6 and upon my further review of that category (as explained in these reasons).
I will now make further orders to dispose of the CITIC Further Discovery application and the CITIC New Discovery application. My reasons for making those orders are set out at [111] to [122] above, and in the Redfern Schedules.
I will hear from the parties at the directions hearing scheduled for 25 September 2024 as to the further orders which should be made to give effect to these reasons including as to the timing of the provision of discovery, and any costs orders which should be made.

ATTACHMENT A
Overview of Discovery Categories and Applications

Category	Party seeking orders	Relevant Applications before the Court	Description
Fulcrum Categories (see Attachment B to these reasons)	Mineralogy Parties	Mineralogy Fulcrum Discovery application	These are the categories of discovery said to be relevant to the 'Fulcrum Allegations', which are sought by the Mineralogy Parties by way of the amended chamber summons filed in each action dated 17 June 2024 (which were originally filed in January 2023).
Q1 to Q43 (see Attachment C to these reasons and categories Q26 and Q42 therein)	CITIC Parties	Mineralogy Discovery Discharge application CITIC Further Discovery application	These are the categories of discovery which were ordered to be given by the Mineralogy Parties, by the order of Kenneth Martin J made in the QNI Proceeding on 22 October 2019. Categories Q26 and Q42 reman in dispute.
P1 to P45 (see Attachment C to these reasons and categories P28 and P44 therein)	CITIC Parties	Mineralogy Discovery Discharge application CITIC Further Discovery application	These are the categories of discovery which were ordered to be given by the Mineralogy Parties, by the order of Kenneth Martin J made in the Palmer Petroleum Proceeding on 22 October 2019. Categories P28 and P44 reman in dispute
QN1 to QN43	CITIC Parties	CITIC New Discovery Application	These are the further categories of discovery sought by the CITIC Parties in the QNI Proceeding by way of the chamber summons dated 30 April 2024.
PN1 to PN21	CITIC Parties	CITIC New Discovery Application	These are the further categories of discovery sought by the CITIC Parties in the Palmer Petroleum Proceeding by way of the chamber summons dated 30 April 2024.

ATTACHMENT B
Fulcrum Categories

No.	Category	Cross-reference to the pleadings	Status
1	Documents created by or for any of the CITIC Parties and/or the Fulcrum Group recording or referring to the deprivation of cash flow to Mineralogy.	These categories were resolved by consent.	Resolved by orders of the Court made by consent on 5 August 2024, to the effect that: The documents produced by the plaintiffs by way of discovery in CIV 1915 of 2019 consolidated with CIV 2326 of 2021 are to be treated as having also been produced by way of discovery in this proceeding.
2	Documents created by or for any of the CITIC Parties and/or the Fulcrum Group recording or referring to options to recoup the additional costs of developing the Sino Iron Project from Mineralogy.
3	The minutes of all meetings of the Fulcrum Group.
4	Documents recording or referring to the CITIC Parties’ consideration of the merits of their defences in proceeding CIV 2338/2012.[68]	QNI Reply [87] and [89]. PP Reply [83] and [85].	Opposed by the CITIC Parties on the grounds of burden and disproportionality (particularly as to legal privilege issues) and as to temporal scope.
5	Documents recording or referring to the CITIC Parties’ consideration of the merits of their defences in proceeding CIV 1808/2013.[69]	QNI Reply [93], [99] and [100]. PP Reply [94], [95], and [96].	Opposed by the CITIC Parties on the grounds of burden and disproportionality (particularly as to legal privilege issues) and as to temporal scope.
6	Documents recording or referring to the CITIC Parties’ consideration of the merits of their claims in proceeding CIV 1915/2019.[70]	QNI Reply [77]. PP Reply [73].	Opposed by the CITIC Parties on the grounds of burden and disproportionality (particularly as to legal privilege issues) and as to temporal scope.
7	Documents recording or referring to the CITIC Parties' consideration of the abandonment of their requests for the areas depicted in Annexure 11 and Annexure 11A to the Statement of Claim in proceeding CIV 1915/2019.[71]	QNI Reply [80]. PP Reply [76].	Opposed by the CITIC Parties on the grounds of burden and disproportionality (particularly as to legal privilege issues) and as to temporal scope.

[68] Matter CIV 2338 of 2012 is a proceeding brought by Mineralogy seeking declaratory relief against Sino Iron and Korean Steel in relation to the MRSLAs arising from notices of default and an asserted ability to exercise a power of termination (the RCA Proceeding). The proceedings were determined by Edelman J in this Court (as his Honour then was) in Mineralogy Pty Ltd v Sino Iron Pty Ltd [2013] WASC 194.

[69] Action CIV 1808 of 2013 is the RCB Proceeding, commenced by the Mineralogy Parties seeking payment of the royalty component B amounts (i.e. the RCB payments) under the MRSLAs.

[70] Action CIV 1915 of 2019 is the 2017 MCP Proceeding, being the first of the mine continuation plan disputes between the parties, which was determined by Kenneth Martin J in 2023 following a 33 day trial held in 2022: Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 15] [2023] WASC 56. That proceeding is now the subject of an appeal to the Court of Appeal, which was heard in August 2024 and has been reserved: CACV 35 of 2023, which is consolidated with CACV 37 of 2023.

[71] See footnote 69 above.

ATTACHMENT C
Original Discovery Categories

These are the discovery categories in respect of which the Mineralogy Parties have sought to be discharged, and in respect of which the CITIC Parties seek further and better discovery.

Item	Description of category
QNI Proceeding
Q26	All documents directly relevant to the value of each real property asset set out in Schedules 2 and 3 to the Amended Substituted Defence dated 17 May 2024.
Q42	All documents directly relevant to current liabilities (at the relevant time) of Palmer and each company and entity directly or indirectly controlled by him in the period from fourth quarter of 2013 to fourth quarter of 2015 to which the Royalty Component B, if it had been paid as alleged in [28] and [29] of the Seventh Amended Statement of Claim dated 22 April 2024, could have been applied or paid in whole or part satisfaction of those liabilities.
Palmer Petroleum Proceeding
P28	All documents directly relevant to the true and fair financial position, including full details of all assets (including the real property listed in Schedules 1 and 2 to the Amended Substituted Defence dated 17 May 2024) and liabilities together with all financial statements, including balance sheets, profit and loss and cash flows and bank statements, for the period from 1 July 2015 to 30 June 2016 of each of the following persons and entities: (i) Clive Palmer (including valuations of the Palmer Sea Reef Golf Course); (ii) Mineralogy Pty Ltd; (iii) QNI; (iv) QNR; (v) QNM; (vi) Palmer Petroleum Pty Ltd; (vii) China First Pty Ltd; (viii) Palmer Leisure Coolum including its subsidiary Coeur De Lion Investments Pty Ltd; (ix) Palmer Leisure Australia Pty Ltd (including valuations of lots it owns in the Downing Street Community Titles Scheme); (x) Palmer Leisure; (xi) Waratah Coal Pty Ltd; (xii) Fairway Coal Pty Ltd; (xiii) Any other entity or company directly or indirectly controlled by Palmer during that period.
P44	All documents evidencing or recording current liabilities (at the relevant time) of Palmer and each company and entity directly or indirectly controlled by him in the period from fourth quarter of 2013 to second quarter of 2016 to which the Royalty Component B, if it had been paid as alleged in [25] and [26] of the Fourth Amended Statement of Claim dated 22 April 2024, could have been applied or paid in whole or part satisfaction of those liabilities.

ATTACHMENT D
Redfern Schedule - QNI Proceeding[72]

[72] The footnotes in the original Redfern Schedule prepared by the parties have been removed.

No.	Description of Category	Date Range	Pleading References	Defendants' Position	Plaintiffs' Response / Defendants’ Reply in Red and further Reply in Blue	Court's Ruling
QN1.	Any documents constituting profit and loss forecasts or cashflow forecasts for the Yabulu Refinery or the Joint Venture business prepared since the cessation of the Joint Venture business in around March 2016, including all documents evidencing or recording: (a) any financial model used to generate the profit and loss forecast or cashflow forecast; (b) the assumptions made in the generation of the profit and loss forecast or cashflow forecast; and (c) the bases of those assumptions.	1 Mar 2016 to present	Seventh Amended Statement of Claim filed 23 April 2024 (*7ASOC*), [44A(b)(iii)], [47] – [49A]. QNI Defence, [50(g)(x)], and [50A(m)].	Category QN1 is directed to the plaintiffs' claims that it was no longer viable to restart the Yabulu Refinery after it was placed into care and maintenance and that the value of the Yabulu Refinery diminished after the business ceased as a going concern. Further, the viability (or not) of restarting the Yabulu Refinery is relevant to the CITIC parties’ allegations about Palmer’s Own Decision. Refer to DS, [8(a)(iii)] and [63]-[65].	Pleadings are yet to close. This category requests documents directly relevant to material facts pleaded, or issues arising, in the 7ASOC and is not affected by the plaintiffs' foreshadowed strike out application. The pleadings have closed and discovery orders should be made now. Alternatively, the viability of restarting the Yabulu Refinery has been in issue in the proceeding since its inception (see, eg, Q6). The introduction of the alleged “Palmer’s Own Decision” in the QNI Defence, and the repackaging of the matters in [50A] as matters from which that decision is to be inferred, is a difference in form and not substance in this respect. The CITIC Parties have not demonstrated a change in circumstances sufficient to justify a departure from the discovery orders previously made by the Court, in substance by consent (No change in circumstances demonstrated). The plaintiffs overlook the recent amendment in 7ASOC, [44A(b)(iii)], particular (a), which alleges that it was not viable to restart the Refinery after the GPLs closed the plant and placed it in care and maintenance. For the plaintiffs to have asserted in the 7ASOC that the Refinery is not viable, relevant financial modelling and forecasts are likely to have been undertaken. This category seeks that modelling and those forecasts. In light of the plaintiffs' allegations, the defendants and their experts are entitled to access and interrogate those materials. Further, this category is effectively the same as original category Q38 ordered by Martin J in 2019, however, the category has been refined to take account of the change in manager of the Joint Venture from QNI to QNS in March 2016. Q38 is restricted to QNI. As at today, the plaintiffs have not asserted that this category seeks documents which are commercially sensitive. Nor could such an assertion be made reasonably where original category Q38, which sought similar prospective financial forecasts, was ordered by consent. Alternatively, QN1 is unduly broad and the date range should be amended to be no later than 13 January 2016 (ie, the latest date by which it alleged that Palmer made the alleged Palmer’s Own Decision). The CITIC Parties do not accept the proposed amendment: The plaintiffs now plead at 7ASOC, [44A(b)(iii)] that it was not viable to restart the Refinery after it was placed in care and maintenance. Forecasts prepared since the Refinery's closure are relevant to its future viability and value. It is therefore not appropriate to limit the date range to the date on which Palmer’s Own Decision was made.	Category QN1 is granted. The category seeks documents relevant to the quantum of loss claimed by the plaintiffs, and thus seeks documents relevant to matters in issue in the proceedings. The pleadings have changed since the prior discovery orders were made. The proposed date range should not be modified. No evidence that the documents are commercially sensitive which in any event would not be a proper ground per-se to resist discovery.
QN2.	All documents evidencing or recording the costs incurred by QNS, QNM or QNR (or on their behalf) for the care and maintenance of the Yabulu Refinery (and the need for that care and maintenance), including but not limited to: (a) all documents constituting care and maintenance reports, plans or proposals (however described); (b) invoices issued to QNS, QNM or QNR (or on their behalf); and (c) records of payments made by QNS, QNM or QNR (or on their behalf).	1 Mar 2016 to present	7ASOC, [44A(b)(iii)], [47] – [49A]. QNI Defence, [50(g)(x)], and [50A(m)].	Actual care and maintenance requirements and costs since the Yabulu Refinery ceased operating are relevant to the consideration of ongoing care and maintenance requirements and costs which in turn affect the assessment of the viability of restarting the Yabulu Refinery. The viability (or not) of restarting the Yabulu Refinery is relevant to the CITIC parties’ allegations about Palmer’s Own Decision. Refer to DS, [8(a)(iii)] and [63]-[65].	Refer to QN1 above. By 7ASOC [44A(b)(iii)] particular (a), the plaintiffs have put in issue the viability of restarting the Refinery. A forensic assessment of viability requires information concerning ongoing care and maintenance costs pending any restart. Alternatively, QN2 is unduly broad and should be amended as follows: All documents evidencing or recording the costs incurred by QNS, QNM or QNR (or on their behalf) for the care and maintenance of the Yabulu Refinery ~~(and the need for that care and maintenance), including but not limited to:~~ ~~(a) all documents constituting care and maintenance reports, plans or proposals (however described);~~ ~~(b) invoices issued to QNS, QNM or QNR (or on their behalf); and~~ ~~(c) records of payments made by QNS, QNM or QNR (or on their behalf).~~ The CITIC Parties accept the proposed amendment subject to reinstatement of sub-paragraph (a): Discovery should be given of documents constituting care and maintenance plans for the Refinery, as they are relevant to assessing the care and maintenance costs being incurred and whether they are appropriate for inclusion as an assumption in any valuation model.	Category QN2 is granted. The category seeks documents relevant to the quantum of loss claimed by the plaintiffs, and thus seeks documents relevant to matters in issue in the proceedings. The pleadings have changed since the prior discovery orders were made. Category should be modified as follows: All documents evidencing or recording the costs incurred by QNS, QNM or QNR (or on their behalf) for the care and maintenance of the Yabulu Refinery including but not limited to all documents constituting care and maintenance reports, plans or proposals (however described).
QN3.	Not used.	No ruling required.
QN4.	An unredacted copy of the Settlement Deed executed on or about 3 August 2019 by or on behalf of the Special Purpose Liquidators of QNI, QNI, QNM, QNR, QNS, Clive Palmer, Clive Mensink, Ian Ferguson, Mineralogy, Palmer Leisure Australia Pty Ltd, Palmer Leisure Coolum Pty Ltd, Cart Provider Pty Ltd, Coeur de Lion Investments Pty Ltd, Coeur de Lion Holdings Pty Ltd, Closeridge Pty Ltd, Waratah Coal Pty Ltd, Cold Mountain Stud Pty Ltd, Evgenia Bednova, Alexander Sokolov and Domenic Martino.	7ASOC, [47]. QNI Defence, [50(g)(x)].	The Settlement Deed referred to in Category QN4 concerns the settlement of claims brought by QNI (via the Special Purpose Liquidators) against Mr Palmer and persons or entities related to him. Category QN4 is therefore relevant to the financial impact of the voluntary administration and liquidation on the Joint Venture business. In addition, the CITIC parties' claim that Palmer's Own Decision was made in circumstances where Mr Palmer was likely to be in a position to avoid or mitigate liabilities associated with the solvent closure of the Yabulu Refinery, including employee liabilities. Refer to DS, [8(c)(ii)].	Pleadings are yet to close. An unredacted copy of the Settlement Deed is not even arguably relevant to 7ASOC [47]. The Joint Venture business had ceased operating prior to the commencement of the proceedings to which the Settlement Deed related. An unredacted copy of the Settlement Deed is not relevant to the alleged “Palmer’s Own Decision”, at least because: · The decision is alleged to have been made at some time before 13 January 2016 (Substituted Defence at [44(b)(v)], and the deed was entered into more than three years later; · It is uncontroversial that QNI’s special liquidators brought claims against Palmer. The details upon which those claims were settled are of no additional relevance to the existence or non-existence of the alleged Palmer’s Own Decision. Finally, the CITIC parties do not attempt to explain why it is necessary for all redactions to be removed. The CITIC Parties no longer press this category.	Category not pressed by CITIC Parties. No ruling required.
QN5.	Not used.	No ruling required.
QN6.	Any document constituting an estimate of the costs of ramping up the Yabulu Refinery back into production (each a Ramp Up Estimate), including all documents evidencing and recording: (a) any financial or technical model, report, budget, plan or proposal (however described) used to generate the Ramp Up Estimate; (b) the assumptions made in the generation of the Ramp Up Estimate; and (c) the bases of those assumptions, including (without limitation) any operational reports or plans concerning restarting the Yabulu Refinery and any proposed ramp up profile or modelling.	1 Mar 2016 to present	7ASOC, [44A(b)(iii)], [47] – [49A]. QNI Defence, [50(g)(x)], and [50A(m)].	Refer to category QN1 above. The costs of ramping up the Yabulu Refinery back into production are relevant to the viability of restarting the Yabulu Refinery. The viability (or not) of restarting the Yabulu Refinery is relevant to the CITIC parties’ allegations about Palmer’s Own Decision. Refer to DS, [8(a)(iii)] and [63]-[65].	Refer to QN1. See comments above in relation to QN1. Alternatively, QN6 is unduly broad and the date range should be amended to be no later than 13 January 2016 (ie, the latest date by which it alleged that Palmer made the alleged Palmer’s Own Decision). The CITIC Parties do not accept the proposed amendment: see comments above in relation to QN1. Any Ramp Up Estimate(s) are likely to post-date the closure of the Refinery and so the Court should not limit the date range to the date on which Palmer’s Own Decision was made.	Category QN6 is granted. The category seeks documents relevant to the quantum of loss claimed by the plaintiffs, and thus seeks documents relevant to matters in issue in the proceedings. The pleadings have changed since the prior discovery orders were made. The proposed date range should not be modified..
QN7.	All documents directly relevant to the operational and regulatory readiness of QNS to manage the Joint Venture, including all steps taken by QNS or on its behalf concerning licenses, permits, authorities, approvals, leases, employment contracts and assignments of supply contracts.	1 Feb 2016 to 30 Apr 2016	QNI Defence, [50(g)], [50A(l)]. QNI Reply, [31], [32].	Category QN7 is directed to the operational and regulatory readiness of QNS to manage the Joint Venture, which is a matter relied on by the CITIC parties for their allegations about Palmer’s Own Decision. Refer to DS, [8(c)(ii)] and [69]-[72].	Pleadings are yet to close. This category requests documents directly relevant to matters in issue arising on the current pleadings. The pleadings have closed subject to the plaintiffs' foreshadowed strike out application (which the CITIC parties consider should be dismissed).	Category QN7 is granted. Sole objection was that the pleadings were yet to close. Even if that was a sufficient objection, the pleadings have now closed.
QN8.	All documents evidencing or recording communications between Clive Palmer or any representative of QNI, QNS, QNM, QNR or Mineralogy on the one hand, and the Administrators of QNI on the other hand, concerning any plans or proposals conveyed by the Administrators to continue operating the Refinery business.	18 Jan 2016 to 22 Apr 2016	QNI Defence, [50(g)], [50A(k)]. QNI Reply, [31], [32].	Category QN8 is directed to evidence of funding requests and 'trade on' scenarios conveyed by the administrators to Mr Palmer, together with his response (if any), which matters are relevant to the CITIC parties’ allegations about Palmer’s Own Decision. Refer to DS, [8(c)(ii)] and [69]-[72].	Pleadings are yet to close. This category requests documents directly relevant to matters in issue arising on the current pleadings. The pleadings have closed subject to the plaintiffs' foreshadowed strike out application (which the CITIC parties consider should be dismissed). Plaintiffs accept for purposes of litigation that Mineralogy or Palmer could have provided funds to QNI. The documents sought are relevant despite the plaintiffs’ limited admission. Refer to DS, [73]-[76]. In any event, the documents sought are not directed at the availability to Mr Palmer of funds but rather the options available to Mr Palmer to enable the Refinery to continue to operate.	Category QN8 is granted. The category seeks documents relevant to the options which were available to Mr Palmer to enable the QNI Refinery to continue to operate, and thus seeks documents relevant to matters in issue in the proceedings.
QN9.	All documents evidencing or recording any actions taken to re-open the Refinery since 11 March 2016.	11 Mar 2016 to present	QNI Defence, [50(g)], [50A(m)]. QNI Reply, [31], [32].	Category QN9 expands previous Category 6, which sought documents recording plans or proposals to re-open the Refinery, but not the actions taken to implement those plans or proposals. The CITIC parties seek further and better discovery of Category 6 in conjunction with category QN9. Category QN9 is directed to evidence of the extent to which Mr Palmer has sought to re-open the Yabulu Refinery, which is relevant to the CITIC parties’ allegations about Palmer’s Own Decision. Refer to DS, [8(c)(ii)] and [69]-[72].	Insofar that the CITIC Parties seek to justify QN9 merely as an augmentation of Q6, no change in circumstances demonstrated. QN9 is not justified by the new pleading references identified by the CITIC Parties. [50(g)] of the QNI Defence alleges that the loss suffered was in relation to the alleged Palmer’s Own Decision (being the alleged decision, some time before 13 January 2016 “not to provide funds for the continued operation of the Joint Venture and, absent such funds, that QNI should or would be placed into voluntary administration.”: [44(b)(v] QNI Defence). [50A(a)] to [(m)] are matters relied upon by the CITIC Parties to infer the existence of that alleged decision. Beyond perhaps a peripheral relevance, it is unclear how actions taken to re-open the Refinery since 11 March 2016 would go towards proving or disproving the existence of the alleged decision. The actions taken, if any, by Mr Palmer or entities controlled by him to re-open the Refinery following receipt of substantial royalties (Defence [50A(m)]), are directly probative of whether Mr Palmer would have provided RCB to QNI to enable it to continue to operate and manage the Joint Venture business. Alternatively, the category is unduly broad and should be amended as follows: All documents evidencing or recording any actions taken by Mr Palmer to re-open the Refinery since 11 March 2016. The CITIC Parties agree that the category could be amended, but as follows: All documents evidencing or recording any actions taken by Mr Palmer or by or on behalf of any entity controlled by him, to re-open the Refinery since 11 March 2016.	Category QN9 is granted. The category seeks documents concerning the actions taken, if any, by Mr Palmer or entities controlled by him to re-open the QNI Refinery following receipt of the royalties, and may be probative as to whether Mr Palmer would have provided RCB to QNI to enable it to continue to operate and manage the Joint Venture business. Category thus seeks documents relevant to matters in issue in the proceedings. Category should be amended as follows: All documents evidencing or recording any actions taken by Mr Palmer (or by or on behalf of any entity controlled by him), to re-open the Refinery since 11 March 2016.
QN10.	All documents evidencing or recording Wood Mackenzie nickel price forecasts being provided or communicated to: (a) Clive Palmer; or (b) any employee, director or other officer of QNI, QNS, QNM or QNR.	1 Aug 2015 to 22 Apr 2016	7ASOC, [37AA]. QNI Defence, [37AA(b)], [44(b)(v)], [48], [50(g)(v)], [50(g)(vi)]. QNI Reply, [1AA(f)], [1AA(g)(ii)], [31(b)].	Category QN10 is directed to evidence of the forecast nickel price as published in the Wood Mackenzie reports from at least August 2015, and its correlative detrimental effect on QNI's forecast cashflow, as matters relevant to: (a) the poor financial performance of QNI and, in turn, the CITIC parties’ allegations about Palmer’s Own Decision; and (b) the plaintiffs’ contention that it was not reasonable for Mr Palmer to provide funds to QNI in circumstances where the price of nickel did not recover before QNI was placed into liquidation on 22 April 2016. Refer to DS, [8(c)(ii)] and [66]-[68].	Pleadings are yet to close. This category requests documents directly relevant to matters in issue arising on the current pleadings. The pleadings have closed subject to the plaintiffs' foreshadowed strike out application (which the CITIC parties consider should be dismissed).	Category QN10 is granted. Sole objection was that the pleadings were yet to close. Even if that was a sufficient objection, the pleadings have now closed.
QN11.	To the extent not captured by QN10, all documents evidencing or recording nickel or cobalt price forecasts being provided or communicated to: (a) Clive Palmer; or (b) any employee, director or other officer of QNS, QNM or QNR	1 Mar 2016 – 30 Jun 2016	7ASOC, [47A] – [49A].	Category QN11 is directed to the plaintiffs' allegation that Mr Palmer lost the opportunity to sell the Palmer Shareholding during March 2016 – June 2016 on the basis of the Yabulu Refinery as a going concern. Mr Palmer's knowledge and understanding of the forecast nickel and cobalt prices during that alleged 'sale' period is relevant to the purported lost opportunity. Refer to DS, [8(a)(iii)] and [63]-[65].	Pleading are yet to close. This category requests documents directly relevant to material facts pleaded, or issues arising, in the 7ASOC and is not affected by the plaintiffs' foreshadowed strike out application. The pleadings have closed and discovery orders should be made now. Alternatively, the CITIC Parties do not explain how it is that Mr Palmer’s knowledge and understanding of the forecast prices is relevant to his loss of the opportunity to sell the Palmer Shareholding so as to justify additional discovery obligations. Mr Palmer's knowledge of the forecast nickel or cobalt price during the 'sale' period is a relevant factual matter, as it would likely have affected Mr Palmer's assessment of the likely sale value of the Refinery and therefore the likelihood that he 'would have sold the Palmer Shareholding' (7ASOC [49A(b)]. Alternatively, QN11 is unduly broad and should be amended as follows: ~~To the extent not captured by QN10,~~ aAll documents evidencing or recording nickel or cobalt price forecasts being provided or communicated to Clive Palmer: (a) ~~Clive Palmer; or~~ ~~(b) any employee, director or other officer of QNS, QNM or QNR~~ The CITIC Parties do not accept the proposed amendment: As pleaded in Defence [50(g)(v)], nickel price information appears to have first been sent to others within the QN group and then communicated to Mr Palmer.	Category QN11 is granted. The category seeks documents relevant to the quantum of loss claimed by the plaintiffs (particularly as to the potential sale of the Palmer Shareholding), and thus seeks documents relevant to matters in issue in the proceedings. The pleadings have changed since the prior discovery orders were made. The proposed category should not be modified.
QN12.	All documents evidencing or recording QNI’s alleged cashflow deficit “between about November 2015 and 2017” pleaded in 7ASOC, [44A(b)(iii)], including: (a) the basis upon which the figures in the table in the particulars were generated; (b) any financial model used to generate the figures in the table in the particulars; (c) the assumptions made in the generation of the figures in the table in the particulars, including (without limitation) as to the matters referred to in [44A(b)(ii)(A)to (D)] of the 7ASOC; and (d) the bases of those assumptions.	7ASOC, [44A(b)].	Category QN12 is directed to the alleged funding requirements of QNI between “November 2015 and 2017”. The CITIC parties are entitled to discovery about the working capital and cashflow requirements of QNI in the relevant period. The plaintiffs have refused to discover the documents in Category QN12 on the basis that they "are documents created for the purposes of litigation, and as such any financial model used to generate the figures in those documents and the assumptions underlying them attract legal professional privilege." Refer to DS, [8(a)(i)], [54]-[56].	Pleadings are yet to close. This category requests documents directly relevant to material facts pleaded, or issues arising, in the 7ASOC and is not affected by the plaintiffs' foreshadowed strike out application. The pleadings have closed and discovery orders should be made now. Alternatively, the plaintiffs’ repeat the position in RNL’s email to Allens dated 20 December 2023. It is not even arguable that [44(b)(iii)] puts in issue those documents, let alone in such a way that is inconsistent with the maintenance of confidentiality that the privilege is designed to protect (Mann v Carnell). What is in issue is QNI’s cashflow deficit had RCB been paid on time, and not any privileged communication. QN12 is a thinly veiled request for further particulars of [44A(b)(iii)] in circumstances where [44A(b)(iii)] is sufficiently particularised. Additional discovery along the lines of QN12 would accordingly be futile and a waste of resources. The appropriate time at which the CITIC Parties will scrutinise the cashflow deficit in [44A(b)(iii)] is upon receipt of technical lay and expert evidence. Objections on the LPP can be made in the further discovery affidavit. Refer to DS [55].	Category QN12 is granted. The category seeks documents relevant to the cashflow deficit allegation and thus seeks documents relevant to matters in issue in the proceedings.

ATTACHMENT E
Redfern Schedule - Palmer Petroleum Proceeding[73]

[73] The footnotes in the original Redfern Schedule prepared by the parties have been removed.

No.	Description of Category	Date Range	Pleading References	Defendants' Position	Plaintiff's Response / Defendants' Reply in Red and further Reply in Blue	Court's Ruling
PN1.	All documents provided to ISIS Petroleum Consultants Pty Ltd to prepare the report(s) dated September 2012, including all data collected by ISIS Petroleum Consultants relating to the PPLs.	4ASOC, [34], [42(b)], [42A]. PP Defence, [38F(b)(vi)], [39AA(c)(i)].	The plaintiff's alleged loss is primarily based on the alleged value of the PPLs. The allegations now include the loss of opportunity to sell PPLs 555, 556 and 557. The plaintiff relies on a report by ISIS dated September 2012 regarding the resources on PPL 556. Further, the defendants allege that Mineralogy's Own Decision is constituted by, or to be inferred from, among other things, Mr Palmer's review of the ISIS report and resolution not to pay the balance of the amount due to BGP. Refer to DS, [8(b)(ii)] and [81]-[84].	Pleadings are yet to close. This category requests documents directly relevant to material facts pleaded, or issues arising, in the 4ASOC, and is not affected by the plaintiff's foreshadowed strike out application. The pleadings have closed and discovery orders should be made now. Alternatively, the value of the PPLs has been in issue since the inception of the proceedings (see, eg, P30-39). No change in circumstances demonstrated. These documents were identified from a review of Mineralogy's discovery, as notified to the plaintiff's solicitors by letter dated 21 July 2023 (exhibit CBP-2 to Blaxill affidavit sworn 21 July 2023). The underlying materials on which the ISIS report dated September 2012 regarding the resources on PPL 556 (on which the plaintiff relies) is based are necessary for any forensic review by the defendants and their experts of that report.	Category PN1 is granted. The category seeks documents relevant to the quantum of loss claimed by the plaintiffs (particularly as to the value of the PPLs), and thus seeks documents relevant to matters in issue in the proceedings. There is sufficient cause demonstrated to order discovery of this category notwithstanding the prior orders made in 2019.
PN2.	All documents constituting the data provided to, collected by and produced by BGP pursuant or purportedly pursuant to the agreement between Palmer Petroleum and BGP on 28 July 2010.	4ASOC, [34], [38B], [42(b)], [42A].	The plaintiff's alleged loss is primarily based on the alleged value of the PPLs. The plaintiff alleges that BGP was engaged to undertake seismic evaluative services and produce reports in respect of the PPLs. Refer to DS, [8(b)(ii)] and [81]-[84].	Pleadings are yet to close. This category requests documents directly relevant to material facts pleaded, or issues arising, in the 4ASOC, and is not affected by the plaintiff's foreshadowed strike out application. The pleadings have closed and discovery orders should be made now. Alternatively, the data collected by BGP has been in issue since the inception of the proceedings (see, eg, P13). No change in circumstances demonstrated. These documents were identified from a review of Mineralogy's discovery, as notified to the plaintiff's solicitors by letter dated 21 July 2023 (exhibit CBP-2 to Blaxill affidavit sworn 21 July 2023). The underlying materials on which BGP's reports in respect of the PPLs (on which the plaintiff relies) are based are necessary for a forensic review by the defendants and their experts of those reports.	Category PN2 is granted. The category seeks documents relevant to the quantum of loss claimed by the plaintiffs (particularly as to the value of the PPLs), and thus seeks documents relevant to matters in issue in the proceedings. There is sufficient cause demonstrated to order discovery of this category notwithstanding the prior orders made in 2019.
PN3.	As to the "affairs" of the Plaintiff which would have required restructuring pleaded at [1AA(e)] of the plaintiff's reply dated 8 March 2024 (*Reply*), all documents evidencing those "affairs" and the true and fair financial position of Mineralogy, including full details of all assets and liabilities together with all financial statements, including balance sheets, profit and loss and cash flows and bank statements.	1 July 2015 to 30 June 2018	4ASOC, [39AA]. PP Defence, [39AA], [43B]. PP Reply, [1AA(e)], [23G(e)].	The potential sources of funding available to Mineralogy and Mr Palmer are relevant to: (a) the plaintiff’s allegation that, had RCB been made when due, Mineralogy would have provided funds to Palmer Petroleum at relevant times; (b) the allegations concerning Mineralogy’s Own Decision (as set out for category P28 in Appendix C); and (c) the defendants’ allegation that Mineralogy did not take all reasonable steps to minimise and, where possible, avoid loss as required by clause 9.1(e) of the FCD. Refer to DS, [6], [8(b)(i)], [8(d)(i) and (ii)], [51], [78]-[80], [85]-[88] and [89]-[93].	Pleadings are yet to close. This category requests documents directly relevant to issues arising on the current pleadings. The pleadings have closed subject to the plaintiff's foreshadowed strike out application (which the CITIC parties consider should be dismissed). Alternatively, the plaintiff accepts for purposes of litigation that Mineralogy could have provided funds to Palmer Petroleum. The documents sought are relevant despite the plaintiff’s limited admission. Refer DS, [89]-[93]. Reply takes issue with legal effect of clause 9.1(e). No change in circumstances demonstrated. In 4ASOC, [38D], the plaintiff pleads that as Sino, Korean and CITIC did not pay RCB 'Mineralogy did not provide such of those funds to Palmer Petroleum to pay for the services rendered under the BGP Contract'. In its Reply, the plaintiff alleges that on a proper construction of clause 9.1(e) of the FCD, the plaintiffs [sic] are not required to restructure their [sic] affairs to accommodate the defendants’ persistent breaches of contract (at [1AA(e)]), and that 'at no time before the order that Palmer Petroleum be wound up in insolvency could Mineralogy, from its own income generating activities, provide funds to Palmer Petroleum to pay the amounts alleged': at [23G(e)]. Whether Mineralogy was required to restructure its affairs, and if so to what extent that was required, is not only a matter of contractual interpretation. It is contextual in that it depends on the structure and nature of Mineralogy's assets. It is plain that documents evidencing Mineralogy's 'affairs' including its true financial position and cash resources, are directly relevant to the plaintiff's allegations. The defendants and their experts should be permitted access to that material.	Category PN3 is granted. The category seeks documents relevant to the potential sources of funding available to Mineralogy and Mr Palmer, and thus seeks documents relevant to matters in issue in the proceedings. The pleadings have changed since the prior discovery orders were made.
PN4.	All documents directly relevant to the source and availability of "other funds" available to Mineralogy or Palmer referred to in [23G(f)(i)] of the Reply.	4ASOC, [39AA]. PP Defence, [39AA], [43B]. PP Reply, [23G(f)(i)].	Refer to category PN3 above. Refer to DS, [6], [8(b)(i)], [8(d)(i)],[8(d)(ii)], [51], [78]-[80], [85]-[88] and [89]-[93].	Refer to PN3 above. The documents sought are relevant despite the plaintiff’s limited admission. Refer DS, [89]-[93].	Category PN4 is granted for same reasons as Category PN3.
PN5.	All documents evidencing or recording Mineralogy's "own income generating activities" referred to in [23G(e)] of the Reply	4ASOC, [39AA]. PP Defence, [39AA]. PP Reply, [23G(e)].	Refer to category PN3 above. Refer to DS, [8(b)(i)], [8(d)(i)], [51], [78]-[80] and [85]-[88].	Refer to PN3 above. Such matters should not be controversial: the plaintiff is referring to the revenue referred to in [34] to [37] of the Wolfe Affidavit (filed 17 November 2015 in CIV 2368/15). The documents sought are relevant despite the plaintiff’s limited admission. Refer DS, [85]-[88] and [89]-[93]. Category PN5 is directly relevant to the plaintiff's claim that at no time prior to PP's liquidation could Mineralogy have provided funds to PP out of Mineralogy's own income-generating activities: Reply, [23G(e)]. The plaintiff claims that the matters are 'uncontroversial' and refers to the Wolfe Affidavit (filed 17 November 2015 in CIV 2368/15). The CITIC Parties are entitled to materials on which that affidavit evidence is based. As at today, the plaintiff has not asserted that this category seeks documents which are commercially sensitive.	Category PN5 is granted. The category seeks documents relevant to matters in issue in the proceedings. See further the reasons corresponding to Category QN29.
PN6.	All tax returns filed by Mineralogy for the financial years ending 30 June 2015 and 30 June 2016.	1 July 2014 to 30 June 2016	4ASOC, [39AA]. PP Defence, [39AA]. PP Reply, [23G(e)].	Refer to category PN3 above. Refer to DS, [8(b)(i)], [8(d)(i)], [51], [78]-[80] and [85]-[88].	Refer to PN3 above. The documents sought are relevant despite the plaintiff’s limited admission. Refer DS, [85]-[88] and [89]-[93]. In 4ASOC [38D], the plaintiff pleads that as Sino, Korean and CITIC did not pay RCB 'Mineralogy did not provide such of those funds to Palmer Petroleum to pay for the services rendered under the BGP Contract'. In its reply (at [23G(e)) the plaintiff alleges that 'at no time before the order that Palmer Petroleum be wound up in insolvency could Mineralogy, from its own income generating activities, provide funds to Palmer Petroleum to pay the amounts alleged'. The income earned by Mineralogy, as disclosed in its tax returns, is directly relevant to the plaintiff's allegations. The defendants and their experts should be permitted access to that material.	Category PN6 is granted. The category seeks documents relevant to the potential sources of funding available to Mineralogy and Mr Palmer, and thus seeks documents relevant to matters in issue in the proceedings. The pleadings have changed since the prior discovery orders were made. No evidence that the documents are commercially sensitive which in any event would not be a proper ground per-se to resist discovery.
PN7.	All documents directly relevant to the extent of resources, or likely resources or indicated resources, including oil and condensate, associated with or within the scope of PPL 555 and PPL 557.	4ASOC, [42(d)], [42A], [43].	Category PN7 is in the same form as extant category P30, relating to PPL 556 (see Appendix C), but seeks documents evidencing alleged resources within PPL 555 and PPL 557 in light of amendments to the statement of claim (at [42] and [42A]) since discovery was ordered in 2019. Refer to DS, [8(b)(ii)] and [81]-[84].	Pleadings are yet to close. This category requests documents directly relevant to material facts pleaded, or issues arising, in the 4ASOC, and is not affected by the plaintiff's foreshadowed strike out application. The pleadings have closed and discovery orders should be made now.	Category PN7 is granted. The category seeks documents relevant to the quantum of loss claimed by the plaintiffs (particularly as to the value of the PPLs), and thus seeks documents relevant to matters in issue in the proceedings. There is sufficient cause demonstrated to order discovery of this category notwithstanding the prior orders made in 2019.
PN8.	All documents directly relevant to the value or likely value of the oil and condensate that was, or was likely to be or indicated to be, associated with or within the scope of PPL 555 and PPL 557 between: (a) 1 January 2016; and (b) 30 September 2017.	4ASOC, [42(d)], [42A], [43].	Refer to category PN7 above. Category PN8 is in the same form as extant category P31, relating to PPL 556. Refer to DS, [8(b)(ii)] and [81]-[84].	Pleadings are yet to close. This category requests documents directly relevant to material facts pleaded, or issues arising, in the 4ASOC, and is not affected by the plaintiff's foreshadowed strike out application. The pleadings have closed and discovery orders should be made now. Date range of 1 January 2016 to 30 September 2017 should be inserted. The CITIC Parties do not accept the proposed amendment: A further date range is unnecessary as the category is already appropriately narrowed by its terms, and responsive documents may have been prepared after 30 September 2017.	Category PN8 is granted. The category seeks documents relevant to the quantum of loss claimed by the plaintiffs (particularly as to the value of the PPLs), and thus seeks documents relevant to matters in issue in the proceedings. There is sufficient cause demonstrated to order discovery of this category notwithstanding the prior orders made in 2019. Date range should not be modified.
PN9.	All documents directly relevant to the value of the rights conferred by PPL 555 and PPL 557 between: (a) 1 January 2016; and (b) 30 September 2017.	4ASOC, [42A].	Refer to category PN7 above. Category PN9 is in the same form as extant category P32, relating to PPL 556. Refer to DS, [8(b)(ii)] and [81]-[84].	Pleadings are yet to close. This category requests documents directly relevant to material facts pleaded, or issues arising, in the 4ASOC, and is not affected by the plaintiff's foreshadowed strike out application. The pleadings have closed and discovery orders should be made now. Date range of 1 January 2016 to 30 September 2017 should be inserted. The CITIC Parties refer to PN8.	Category PN9 is granted. See reasons in relation to Category PN8.
PN10.	All documents directly relevant to the value of the shares in Blaxcell between 1 January 2016 to 30 September 2017.	4ASOC, [42], [42A], [43].	Category PN10 is in the same form as extant category P33 (see Appendix C), but seeks documents relevant to the value of the shares in Blaxcell in light of amendments to the statement of claim (at [42], [42A] and [43]) since discovery was ordered in 2019. Refer to DS, [8(b)(ii)] and [81]-[84].	Pleadings are yet to close. This category requests documents directly relevant to material facts pleaded, or issues arising, in the 4ASOC, and is not affected by the plaintiff's foreshadowed strike out application. The pleadings have closed and discovery orders should be made now. Date range of 1 January 2016 to 30 September 2017 should be inserted. The CITIC Parties refer to PN8.	Category PN10 is granted. See reasons in relation to Category PN8.
PN11.	All communications between Palmer Petroleum and the PNG Department of Petroleum and Energy in relation to the PPLs, including (but not limited to) communications concerning rental and maintaining the PPLs in good standing.	4ASOC, [42], [42A], [43B(ac)]. PP Defence, [43B(ac)]. PP Reply, [28].	This category is relevant to the plaintiff’s allegation that Palmer Petroleum suffered a diminution in value in that it incurred expenditure for exploration and related activities, and rental and keeping the PPLs in good standing, which was wasted and could not be recouped. It is further relevant to the defendants' allegation that the PPLs were cancelled on 15 September 2017 for reasons including that Palmer Petroleum failed to maintain the PPLs in good order or standing. Refer to DS, [8(b)(ii)], [8(d)(ii)], [81]-[84] and [89]-[93].	Pleadings are yet to close. This category requests documents directly relevant to material facts pleaded, or issues arising, in the 4ASOC, and is not affected by the plaintiff's foreshadowed strike out application. The pleadings have closed and discovery orders should be made now. Alternatively, the CITIC Parties do not explain how PN11 is relevant to the plaintiff’s contention that it incurred expenditure that was wasted as a result of the cancellations. The correspondence sought is, at most, peripherally relevant to proving or disproving what expenditure was incurred. [43B(ac)] of the PP Defence does not introduce into the proceeding a roving inquiry into the communications between Palmer Petroleum and the PNG Department of Petroleum and Energy. Alternatively, PN11 is unduly broad and should be confined to the date range of 2 years prior to the Cancellations (15 September 2015) and should be amended as follows: All communications between Palmer Petroleum and the PNG Department of Petroleum and Energy in relation to the PPLs~~, including (but not limited to) communications~~ concerning ~~rental and~~ maintaining the PPLs in good standing. [or, alternatively, the matters referred to in paragraphs 6, 7, 9, 12 and 13 of Blaxcell Limited v Hon Dr Fabian Pok MP, Minsiter for Petroleum and Energy and Independent State of Papua New Guinea OS (JR) No. 888 of 2017 (Unreported, delivered on 15 December 2023).] The CITIC Parties agree to confine the date range and the description as follows: All communications between Palmer Petroleum and the PNG Department of Petroleum and Energy in relation to the PPLs, ~~including (but not limited to) communications~~ concerning rental and maintaining the PPLs in good standing in the period 15 September 2015 to 15 September 2017.	Category PN11 is granted in amended form: All communications between Palmer Petroleum and the PNG Department of Petroleum and Energy in relation to the PPLs, concerning rental and maintaining the PPLs in good standing confined to the period from 15 September 2015 to 15 September 2017. Otherwise see reasons in relation to CategoryPN8.
PN12.	All communications between Blaxcell and the PNG Department of Petroleum and Energy in relation to the PPLs, including (but not limited to) communications concerning rental and maintaining the PPLs in good standing.	4ASOC, [42], [42A], [43B(ac)]. PP Defence, [43B(ac)].	Refer to category PN11 above. Refer to DS, [8(b)(ii)], [8(d)(ii)], [81]-[84] and [89]-[93].	Refer to PN11 above. The CITIC Parties refer to PN11.	Category PN12 is granted in amended form: All communications between Blaxcell and the PNG Department of Petroleum and Energy in relation to the PPLs, concerning rental and maintaining the PPLs in good standing confined to the period from 15 September 2015 to 15 September 2017. Otherwise see reasons in relation to CategoryPN8.
PN13.	All documents evidencing or recording Mineralogy's consideration of the liquidators' proposal to enter into a deed of company arrangement which would compromise the debts of Palmer Petroleum.	PP Defence, [39AA(d)], [43B].	The defendants allege Mineralogy failed to take all reasonable steps to minimise and, where possible, avoid any loss or damage suffered by it. The plaintiff's discovery indicates that the liquidators proposed a deed of company arrangement which would compromise the debts of Palmer Petroleum, and that Mr Palmer expressed interest in the proposal.[74] The plaintiff has not discovered any further documents evidencing or recording Mineralogy's consideration of the liquidators’ proposal. Refer to DS, [8(d)(ii)] and [89]-[93].	Pleadings are yet to close. This category requests documents directly relevant to issues arising on the current pleadings. The pleadings have closed subject to the plaintiff's foreshadowed strike out application (which the CITIC parties consider should be dismissed). Alternatively, the plaintiff accepts for purposes of litigation that Mineralogy could have provided funds to Palmer Petroleum. The documents sought are relevant despite the plaintiff’s limited admission. Refer to DS, [89]-[93]. No change in circumstances demonstrated. The likely existence of these documents was identified from a review of Mineralogy's discovery: (exhibit CPB-44 to Blaxill affidavit sworn 3 May 2024).	Category PN13 is granted. The category seeks documents relevant to matters in issue in the proceedings. There is sufficient cause to supplement the prior discovery orders to capture these documents.
PN14.	All documents evidencing or recording the payment(s) by Mineralogy of US$17,629,673.68 and AU$51,733.57 to BGP and its solicitors on or around 20 November 2017 and identification of the source of funds for those payments.	4ASOC, [39AA]. PP Defence, [39AA(vi)]. PP Reply, [1AA(e)], [23G].	The payments identified in this category were paid by or on behalf of Mineralogy prior to it receiving any RCB. The documents sought are relevant to: (a) the plaintiff’s allegation that, had RCB been made when due, Mineralogy would have provided funds to Palmer Petroleum at relevant times and the related allegation that it could not have provided Palmer Petroleum funds from its own income generating activities; (b) the allegations concerning Mineralogy’s Own Decision (as set out for extant category P28 in Appendix C). Refer to DS, [6], [8(b)(i)], [8(d)(i)], [78]-[80] and [85]-[88].	Pleadings are yet to close. This category requests documents directly relevant to issues arising on the current pleadings. The pleadings have closed subject to the plaintiff's foreshadowed strike out application (which the CITIC parties consider should be dismissed). Alternatively, the plaintiff accepts for purposes of litigation that Mineralogy could have provided funds to Palmer Petroleum). The plaintiff also accepts the payment to BGP’s solicitors: PP Reply at [1AA(h)]. In circumstances where only Mineralogy is subject to the obligation in clause 9.1(e), and in light of the above, neither the fact of payment nor the sources of the funds for the payments is relevant and/or is disproportionate to the just and expeditious resolution of the issues in dispute. Reply takes issue with legal effect of clause 9.1(e). The documents sought are relevant despite the plaintiff’s limited admission. Refer to DS, [85]-[88] and [89]-[93]. No change in circumstances. At Reply [23G(e)], the plaintiff alleges that 'at no time before the order that Palmer Petroleum be wound up in insolvency could Mineralogy, from its own income generating activities, provide funds to Palmer Petroleum to pay the amounts alleged'. In the face of this plea, the defendants are entitled to discovery of documents showing how Mineralogy came to access US$17,629,673.68 and AU$51,733.57 prior to its receipt of Royalty Component B and whether those funds were obtained from its own income generating activities.	Category PN14 is granted. The category seeks documents relevant to matters in issue in the proceedings. The pleadings have changed since the prior discovery orders were made.
PN15.	All documents evidencing the financial position of Blaxcell for the period from 1 January 2016 to 30 September 2017.	4ASOC, [42(d)], [42A], [43].	The plaintiff's alleged loss is now based on a diminution in the value of the shares in Palmer Petroleum or Blaxcell. Refer to DS, [8(b)(ii)] and [81]-[84].	Pleadings are yet to close. This category requests documents directly relevant to material facts pleaded, or issues arising, in the 4ASOC, and is not affected by the plaintiff's foreshadowed strike out application. The pleadings have closed and discovery orders should be made now. Alternatively, the CITIC Parties have not explained how PN15 is relevant to the issues in dispute. Alternatively, PN15 should align with P33 and should read as follows: All documents directly relevant to the value of the shares in Blaxcell Petroleum as at 8 June 2016 (ie, upon exercise of the Option). Date range of 1 January 2016 to 30 September 2017 should also be inserted. The CITIC Parties do not accept the proposed amendment: 4ASOC, [42A] alleges a diminution in the value of the shares in Palmer Petroleum or Blaxcell due to a lost opportunity to sell the PPLs between 1 January 2016 to 30 September 2017. Documents evidencing the financial position of Blaxcell for the duration of that period are relevant and there is no basis to limit the category to the value of shares in Blaxcell as at 8 June 2016. Further, the category defines the period in relation to which the financial position of Blaxcell is relevant. Responsive documents may have been prepared after 30 September 2017.	Category PN15 is granted. The category seeks documents relevant to the quantum of loss claimed by the plaintiffs (particularly as to the value of Blaxcell), and thus seeks documents relevant to matters in issue in the proceedings. There is sufficient cause demonstrated to order discovery of this category notwithstanding the prior orders made in 2019. Date range should not be modified.
PN16.	Not used.	This category is no longer pressed.	No ruling required.
PN17.	Any company structure diagram, list or other document or group of documents identifying any entities or companies directly or indirectly controlled by Mineralogy during the period from 1 July 2015 to 30 June 2016.	1 July 2015 to 30 June 2016	4ASOC, [39AA]. PP Reply, [23G].	The documents sought are relevant to: (a) the plaintiff’s allegation that, had RCB been made when due, Mineralogy would have provided funds to Palmer Petroleum at relevant times; (b) the allegations concerning Mineralogy’s Own Decision (as set out for extant category P28 in Appendix C). Refer to DS, [6], [8(b)(i)], [78]-[80] and [85]-[88].	Pleadings are yet to close. This category requests documents directly relevant to issues arising on the current pleadings. The pleadings have closed subject to the plaintiff's foreshadowed strike out application (which the CITIC parties consider should be dismissed). Alternatively, the CITIC Parties have not explained how PN17 is relevant to [39AA] of the 4ASOC. [23G(i)(i)] of the PP Reply makes clear that Mineralogy would have funded Palmer Petroleum’s funding requirements from its own income generating activities (principally comprising RCA and RCB). Otherwise, refer to P28 above. Date range of 1 July 2015 to 30 June 2016 should be inserted. The CITIC Parties accept the proposed amendment: date range 1 July 2015 to 30 June 2016. The documents sought are relevant despite the plaintiff’s limited admission. Refer DS, [38], [50], [85]-[88] and [89]-[93].	Category PN17 is granted in amended form: Any company structure diagram, list or other document or group of documents identifying any entities or companies directly or indirectly controlled by Mineralogy during the period from 1 July 2015 to 30 June 2016. The category seeks documents relevant to sources of funding reasonably available to Mineralogy and Mr Palmer, and thus seeks documents relevant to matters in issue in the proceedings.
PN18.	All documents directly relevant to the value or likely value of the oil and condensate that was, or was likely to be or indicated to be, associated with or within the scope of PPL 556 between 1 January 2016 to 30 September 2017.	4ASOC, [34], [42(b)], [42A], [43].	Category PN18 is in the same form as extant category P31 (see Appendix C), but seeks documents from an earlier time period in light of amendments to paragraphs 42 and 42A of the 4ASOC since discovery was ordered in 2019. Refer to DS, [8(b)(ii)] and [81]-[84].	Pleadings are yet to close. This category requests documents directly relevant to material facts pleaded, or issues arising, in the 4ASOC, and is not affected by the plaintiff's foreshadowed strike out application. The pleadings have closed and discovery orders should be made now. Alternatively, date range of 1 January 2016 to 30 September 2017 should be inserted. The CITIC Parties do not accept the proposed amendment: A further date range is unnecessary as the category is already appropriately narrowed by its terms, and documents evidencing the financial position of Blaxcell for the period 1 January 2016 to 30 September 2017 may have been prepared after 30 September 2017.	Category PN18 is granted. The category seeks documents relevant to the quantum of loss claimed by the plaintiffs (particularly as to the value of the PPL identified), and thus seeks documents relevant to matters in issue in the proceedings. There is sufficient cause demonstrated to order discovery of this category notwithstanding the prior orders made in 2019. Date range should not be modified.
PN19.	All documents directly relevant to the value of the shares in Palmer Petroleum between 1 January 2016 to 30 September 2017.	4ASOC, [42], [42A], [43].	Category PN19 is drafted in the same form as extant category P33 (see Appendix C), but seeks documents from an earlier time period in light of amendments to paragraphs 42 and 42A of the 4ASOC since discovery was ordered in 2019. Refer to DS, [8(b)(ii)] and [81]-[84].	Pleadings are yet to close. This category requests documents directly relevant to material facts pleaded, or issues arising, in the 4ASOC, and is not affected by the plaintiff's foreshadowed strike out application. The pleadings have closed and discovery orders should be made now. Alternatively. date range of 1 January 2016 to 30 September 2017 should be inserted. The CITIC Parties do not accept the proposed amendment: A date range is unnecessary as the category is already appropriately narrowed by its terms, and documents relevant to the value of shares in Palmer Petroleum between 1 January 2016 to 30 September 2017 may have been prepared after 30 September 2017. This category seeks documents directly relevant to the value of the shares in Palmer Petroleum. Those documents are relevant to the plaintiff's allegations that Palmer Petroleum suffered a diminution in value at 4ASOC, [42], [42A] and [43]. The documents sought in this category are the same as those sought by existing category P33 but with an extended timeframe due to the amendments introduced by the plaintiff in the 4ASOC. As at today, the plaintiff has not asserted that this category seeks documents which are commercially sensitive. Nor could such an assertion be made reasonably where original category P33, which sought similar documents relevant to value, was ordered by consent.	Category PN19 is granted. The category seeks documents relevant to the quantum of loss claimed by the plaintiffs (particularly as to the value of the shares in Palmer Petroleum), and thus seeks documents relevant to matters in issue in the proceedings. There is sufficient cause demonstrated to order discovery of this category notwithstanding the prior orders made in 2019. Date range should not be modified.
PN20.	All documents evidencing or recording expenditure in respect of: (a) 'exploration and related activities'; and (b) 'rental and keeping PPL 555, PPL 556 and PPL 557 in good standing' as referred to in paragraph 42(ca) of the 4ASOC, including all payment records and documents identifying the source of funds for those payments.	4ASOC, [42(ca)]. PP Reply [23G(e)], [23G(f)].	The defendants propose to deny the new paragraph 42(ca). Also refer to extant category 28 in Appendix C and category PN11 above. Refer to DS, [8(b)(ii)] and [81]-[84].	Refer to P28 and PN11 above. Despite the above protests and assertions, the plaintiff concedes, ultimately, that the documents are discoverable and have proposed an amendment to this category below. Otherwise, in light of the response to those categories, PN20 is unduly broad and should be amended as follows: All documents evidencing or recording expenditure in respect of: (a) 'exploration and related activities'; and (b) 'rental and keeping PPL 555, PPL 556 and PPL 557 in good standing' as referred to in paragraph 42(ca) of the 4ASOC~~, including all payment records and documents identifying the source of funds for those payments.~~ Further, or alternatively, the CITIC Parties have not explained how it is that the source of the funds for payment of such expenditure (some of which was incurred several years before Palmer Petroleum’s insolvency) is sufficiently probative of a fact in issue so as to justify the burden of additional discovery. The CITIC Parties do not accept the proposed amendment: Source of funds documents are relevant despite the plaintiff's limited admission: DS: [85]-[88].	Category PN20 is granted in amended form: All documents evidencing or recording expenditure in respect of: (a) 'exploration and related activities'; and (b) 'rental and keeping PPL 555, PPL 556 and PPL 557 in good standing' as referred to in paragraph 42(ca) of the 4ASOC. The category seeks documents relevant to the quantum of loss claimed by the plaintiffs and thus seeks documents relevant to matters in issue in the proceedings.
PN21.	To the extent not covered by extant categories P34 and P35, all documents relating to any actual or proposed sale or sale process concerning one or more of the PPLs (*Potential Sale*), between 1 January 2016 to 30 September 2017, including but not limited to: (a) documents evidencing consideration by Palmer Petroleum, Blaxcell or Mineralogy (or on their behalf) of such a Potential Sale; (b) sale marketing materials, information memoranda and the like; (c) the establishment or planning of due diligence processes in connection with any such Potential Sale; (d) any due diligence material provided to or made available to potential purchasers in connection with any such Potential Sale; (e) any correspondence with or reports from consultants or advisers engaged for the purposes of any Potential Sale or examining the prospect of such a Potential Sale; (f) documents recording the terms of any proposed sale transaction; (g) documents evidencing the reasons why any such proposed transaction did not complete.	1 January 2016 to 30 September 2017	4ASOC, [41A], [42], [42A].	The plaintiff now alleges loss based on an alleged loss of opportunity to sell the PPLs between early-2016 and mid-2017. Refer to DS, [8(b)(ii)] and [81]-[84].	Pleadings are yet to close. This category requests documents directly relevant to material facts pleaded, or issues arising, in the 4ASOC, and is not affected by the plaintiff's foreshadowed strike out application. The pleadings have closed and discovery orders should be made now.	Category PN21 is granted. Even if that was a sufficient objection, the pleadings have now closed.

No.

Description of Category

Date Range

Pleading References

Defendants' Position

Plaintiff's Response /
Defendants' Reply in Red and further Reply in Blue

Court's Ruling

PN1.

All documents provided to ISIS Petroleum Consultants Pty Ltd to prepare the report(s) dated September 2012, including all data collected by ISIS Petroleum Consultants relating to the PPLs.

4ASOC, [34], [42(b)], [42A].

PP Defence, [38F(b)(vi)], [39AA(c)(i)].

The plaintiff's alleged loss is primarily based on the alleged value of the PPLs. The allegations now include the loss of opportunity to sell PPLs 555, 556 and 557. The plaintiff relies on a report by ISIS dated September 2012 regarding the resources on PPL 556.

Further, the defendants allege that Mineralogy's Own Decision is constituted by, or to be inferred from, among other things, Mr Palmer's review of the ISIS report and resolution not to pay the balance of the amount due to BGP.

Refer to DS, [8(b)(ii)] and [81]-[84].

Pleadings are yet to close.

This category requests documents directly relevant to material facts pleaded, or issues arising, in the 4ASOC, and is not affected by the plaintiff's foreshadowed strike out application. The pleadings have closed and discovery orders should be made now.

Alternatively, the value of the PPLs has been in issue since the inception of the proceedings (see, eg, P30-39). No change in circumstances demonstrated.

These documents were identified from a review of Mineralogy's discovery, as notified to the plaintiff's solicitors by letter dated 21 July 2023 (exhibit CBP-2 to Blaxill affidavit sworn 21 July 2023). The underlying materials on which the ISIS report dated September 2012 regarding the resources on PPL 556 (on which the plaintiff relies) is based are necessary for any forensic review by the defendants and their experts of that report.

Category PN1 is granted.

The category seeks documents relevant to the quantum of loss claimed by the plaintiffs (particularly as to the value of the PPLs), and thus seeks documents relevant to matters in issue in the proceedings.

There is sufficient cause demonstrated to order discovery of this category notwithstanding the prior orders made in 2019.

PN2.

All documents constituting the data provided to, collected by and produced by BGP pursuant or purportedly pursuant to the agreement between Palmer Petroleum and BGP on 28 July 2010.

4ASOC, [34], [38B], [42(b)], [42A].

The plaintiff's alleged loss is primarily based on the alleged value of the PPLs. The plaintiff alleges that BGP was engaged to undertake seismic evaluative services and produce reports in respect of the PPLs.

Refer to DS, [8(b)(ii)] and [81]-[84].

Pleadings are yet to close.

Alternatively, the data collected by BGP has been in issue since the inception of the proceedings (see, eg, P13). No change in circumstances demonstrated.

These documents were identified from a review of Mineralogy's discovery, as notified to the plaintiff's solicitors by letter dated 21 July 2023 (exhibit CBP-2 to Blaxill affidavit sworn 21 July 2023). The underlying materials on which BGP's reports in respect of the PPLs (on which the plaintiff relies) are based are necessary for a forensic review by the defendants and their experts of those reports.

Category PN2 is granted.

There is sufficient cause demonstrated to order discovery of this category notwithstanding the prior orders made in 2019.

PN3.

As to the "affairs" of the Plaintiff which would have required restructuring pleaded at [1AA(e)] of the plaintiff's reply dated 8 March 2024 (Reply), all documents evidencing those "affairs" and the true and fair financial position of Mineralogy, including full details of all assets and liabilities together with all financial statements, including balance sheets, profit and loss and cash flows and bank statements.

1 July 2015
to
30 June 2018

4ASOC, [39AA].

PP Defence, [39AA], [43B].

PP Reply, [1AA(e)], [23G(e)].

The potential sources of funding available to Mineralogy and Mr Palmer are relevant to:

(a) the plaintiff’s allegation that, had RCB been made when due, Mineralogy would have provided funds to Palmer Petroleum at relevant times;

(b) the allegations concerning Mineralogy’s Own Decision (as set out for category P28 in Appendix C); and

(c) the defendants’ allegation that Mineralogy did not take all reasonable steps to minimise and, where possible, avoid loss as required by clause 9.1(e) of the FCD.

Refer to DS, [6], [8(b)(i)], [8(d)(i) and (ii)], [51], [78]-[80], [85]-[88] and [89]-[93].

Pleadings are yet to close.

This category requests documents directly relevant to issues arising on the current pleadings. The pleadings have closed subject to the plaintiff's foreshadowed strike out application (which the CITIC parties consider should be dismissed).

Alternatively, the plaintiff accepts for purposes of litigation that Mineralogy could have provided funds to Palmer Petroleum.

The documents sought are relevant despite the plaintiff’s limited admission. Refer DS, [89]-[93].

Reply takes issue with legal effect of clause 9.1(e).

No change in circumstances demonstrated.

In 4ASOC, [38D], the plaintiff pleads that as Sino, Korean and CITIC did not pay RCB 'Mineralogy did not provide such of those funds to Palmer Petroleum to pay for the services rendered under the BGP Contract'. In its Reply, the plaintiff alleges that on a proper construction of clause 9.1(e) of the FCD, the plaintiffs [sic] are not required to restructure their [sic] affairs to accommodate the defendants’ persistent breaches of contract (at [1AA(e)]), and that 'at no time before the order that Palmer Petroleum be wound up in insolvency could Mineralogy, from its own income generating activities, provide funds to Palmer Petroleum to pay the amounts alleged': at [23G(e)]. Whether Mineralogy was required to restructure its affairs, and if so to what extent that was required, is not only a matter of contractual interpretation. It is contextual in that it depends on the structure and nature of Mineralogy's assets. It is plain that documents evidencing Mineralogy's 'affairs' including its true financial position and cash resources, are directly relevant to the plaintiff's allegations. The defendants and their experts should be permitted access to that material.

Category PN3 is granted.

The category seeks documents relevant to the potential sources of funding available to Mineralogy and Mr Palmer, and thus seeks documents relevant to matters in issue in the proceedings.

The pleadings have changed since the prior discovery orders were made.

PN4.

All documents directly relevant to the source and availability of "other funds" available to Mineralogy or Palmer referred to in [23G(f)(i)] of the Reply.

4ASOC, [39AA].

PP Defence, [39AA], [43B].

PP Reply, [23G(f)(i)].

Refer to category PN3 above.

Refer to DS, [6], [8(b)(i)], [8(d)(i)],[8(d)(ii)], [51], [78]-[80], [85]-[88] and [89]-[93].

Refer to PN3 above.

The documents sought are relevant despite the plaintiff’s limited admission. Refer DS, [89]-[93].

Category PN4 is granted for same reasons as Category PN3.

PN5.

All documents evidencing or recording Mineralogy's "own income generating activities" referred to in [23G(e)] of the Reply

4ASOC, [39AA].

PP Defence, [39AA].

PP Reply, [23G(e)].

Refer to category PN3 above.

Refer to DS, [8(b)(i)], [8(d)(i)], [51], [78]-[80] and [85]-[88].

Refer to PN3 above. Such matters should not be controversial: the plaintiff is referring to the revenue referred to in [34] to [37] of the Wolfe Affidavit (filed 17 November 2015 in CIV 2368/15).

The documents sought are relevant despite the plaintiff’s limited admission. Refer DS, [85]-[88] and [89]-[93].

Category PN5 is directly relevant to the plaintiff's claim that at no time prior to PP's liquidation could Mineralogy have provided funds to PP out of Mineralogy's own income-generating activities: Reply, [23G(e)].

The plaintiff claims that the matters are 'uncontroversial' and refers to the Wolfe Affidavit (filed 17 November 2015 in CIV 2368/15). The CITIC Parties are entitled to materials on which that affidavit evidence is based. As at today, the plaintiff has not asserted that this category seeks documents which are commercially sensitive.

Category PN5 is granted.

The category seeks documents relevant to matters in issue in the proceedings.

See further the reasons corresponding to Category QN29.

PN6.

All tax returns filed by Mineralogy for the financial years ending 30 June 2015 and 30 June 2016.

1 July 2014
to
30 June 2016

4ASOC, [39AA].

PP Defence, [39AA].

PP Reply, [23G(e)].

Refer to category PN3 above.

Refer to DS, [8(b)(i)], [8(d)(i)], [51], [78]-[80] and [85]-[88].

Refer to PN3 above.

The documents sought are relevant despite the plaintiff’s limited admission. Refer DS, [85]-[88] and [89]-[93].

In 4ASOC [38D], the plaintiff pleads that as Sino, Korean and CITIC did not pay RCB 'Mineralogy did not provide such of those funds to Palmer Petroleum to pay for the services rendered under the BGP Contract'. In its reply (at [23G(e)) the plaintiff alleges that 'at no time before the order that Palmer Petroleum be wound up in insolvency could Mineralogy, from its own income generating activities, provide funds to Palmer Petroleum to pay the amounts alleged'. The income earned by Mineralogy, as disclosed in its tax returns, is directly relevant to the plaintiff's allegations. The defendants and their experts should be permitted access to that material.

Category PN6 is granted.

The category seeks documents relevant to the potential sources of funding available to Mineralogy and Mr Palmer, and thus seeks documents relevant to matters in issue in the proceedings.

The pleadings have changed since the prior discovery orders were made.

No evidence that the documents are commercially sensitive which in any event would not be a proper ground per-se to resist discovery.

PN7.

All documents directly relevant to the extent of resources, or likely resources or indicated resources, including oil and condensate, associated with or within the scope of PPL 555 and PPL 557.

4ASOC, [42(d)], [42A], [43].

Category PN7 is in the same form as extant category P30, relating to PPL 556 (see Appendix C), but seeks documents evidencing alleged resources within PPL 555 and PPL 557 in light of amendments to the statement of claim (at [42] and [42A]) since discovery was ordered in 2019.

Refer to DS, [8(b)(ii)] and [81]-[84].

Pleadings are yet to close.

Category PN7 is granted.

There is sufficient cause demonstrated to order discovery of this category notwithstanding the prior orders made in 2019.

PN8.

All documents directly relevant to the value or likely value of the oil and condensate that was, or was likely to be or indicated to be, associated with or within the scope of PPL 555 and PPL 557 between:

(a) 1 January 2016; and

(b) 30 September 2017.

4ASOC, [42(d)], [42A], [43].

Refer to category PN7 above. Category PN8 is in the same form as extant category P31, relating to PPL 556.

Refer to DS, [8(b)(ii)] and [81]-[84].

Pleadings are yet to close.

Date range of 1 January 2016 to 30 September 2017 should be inserted.

The CITIC Parties do not accept the proposed amendment: A further date range is unnecessary as the category is already appropriately narrowed by its terms, and responsive documents may have been prepared after 30 September 2017.

Category PN8 is granted.

There is sufficient cause demonstrated to order discovery of this category notwithstanding the prior orders made in 2019.

Date range should not be modified.

PN9.

All documents directly relevant to the value of the rights conferred by PPL 555 and PPL 557 between:

(a) 1 January 2016; and

(b) 30 September 2017.

4ASOC, [42A].

Refer to category PN7 above. Category PN9 is in the same form as extant category P32, relating to PPL 556.

Refer to DS, [8(b)(ii)] and [81]-[84].

Pleadings are yet to close.

Date range of 1 January 2016 to 30 September 2017 should be inserted.

The CITIC Parties refer to PN8.

Category PN9 is granted.

See reasons in relation to Category PN8.

PN10.

All documents directly relevant to the value of the shares in Blaxcell between 1 January 2016 to 30 September 2017.

4ASOC, [42], [42A], [43].

Category PN10 is in the same form as extant category P33 (see Appendix C), but seeks documents relevant to the value of the shares in Blaxcell in light of amendments to the statement of claim (at [42], [42A] and [43]) since discovery was ordered in 2019.

Refer to DS, [8(b)(ii)] and [81]-[84].

Pleadings are yet to close.

Date range of 1 January 2016 to 30 September 2017 should be inserted.

The CITIC Parties refer to PN8.

Category PN10 is granted.

See reasons in relation to Category PN8.

PN11.

All communications between Palmer Petroleum and the PNG Department of Petroleum and Energy in relation to the PPLs, including (but not limited to) communications concerning rental and maintaining the PPLs in good standing.

4ASOC, [42], [42A], [43B(ac)].

PP Defence, [43B(ac)].

PP Reply, [28].

This category is relevant to the plaintiff’s allegation that Palmer Petroleum suffered a diminution in value in that it incurred expenditure for exploration and related activities, and rental and keeping the PPLs in good standing, which was wasted and could not be recouped.

It is further relevant to the defendants' allegation that the PPLs were cancelled on 15 September 2017 for reasons including that Palmer Petroleum failed to maintain the PPLs in good order or standing.

Refer to DS, [8(b)(ii)], [8(d)(ii)], [81]-[84] and [89]-[93].

Pleadings are yet to close.

Alternatively, the CITIC Parties do not explain how PN11 is relevant to the plaintiff’s contention that it incurred expenditure that was wasted as a result of the cancellations. The correspondence sought is, at most, peripherally relevant to proving or disproving what expenditure was incurred.

[43B(ac)] of the PP Defence does not introduce into the proceeding a roving inquiry into the communications between Palmer Petroleum and the PNG Department of Petroleum and Energy.

Alternatively, PN11 is unduly broad and should be confined to the date range of 2 years prior to the Cancellations (15 September 2015) and should be amended as follows:

All communications between Palmer Petroleum and the PNG Department of Petroleum and Energy in relation to the PPLs~~, including (but not limited to) communications~~ concerning ~~rental and~~ maintaining the PPLs in good standing. [or, alternatively, the matters referred to in paragraphs 6, 7, 9, 12 and 13 of Blaxcell Limited v Hon Dr Fabian Pok MP, Minsiter for Petroleum and Energy and Independent State of Papua New Guinea OS (JR) No. 888 of 2017 (Unreported, delivered on 15 December 2023).]

The CITIC Parties agree to confine the date range and the description as follows: All communications between Palmer Petroleum and the PNG Department of Petroleum and Energy in relation to the PPLs, ~~including (but not limited to) communications~~ concerning rental and maintaining the PPLs in good standing in the period 15 September 2015 to 15 September 2017.

Category PN11 is granted in amended form:

All communications between Palmer Petroleum and the PNG Department of Petroleum and Energy in relation to the PPLs, concerning rental and maintaining the PPLs in good standing confined to the period from 15 September 2015 to 15 September 2017.

Otherwise see reasons in relation to CategoryPN8.

PN12.

All communications between Blaxcell and the PNG Department of Petroleum and Energy in relation to the PPLs, including (but not limited to) communications concerning rental and maintaining the PPLs in good standing.

4ASOC, [42], [42A], [43B(ac)].

PP Defence, [43B(ac)].

Refer to category PN11 above.

Refer to DS, [8(b)(ii)], [8(d)(ii)], [81]-[84] and [89]-[93].

Refer to PN11 above.

The CITIC Parties refer to PN11.

Category PN12 is granted in amended form:

All communications between Blaxcell and the PNG Department of Petroleum and Energy in relation to the PPLs, concerning rental and maintaining the PPLs in good standing confined to the period from 15 September 2015 to 15 September 2017.

Otherwise see reasons in relation to CategoryPN8.

PN13.

All documents evidencing or recording Mineralogy's consideration of the liquidators' proposal to enter into a deed of company arrangement which would compromise the debts of Palmer Petroleum.

PP Defence, [39AA(d)], [43B].

The defendants allege Mineralogy failed to take all reasonable steps to minimise and, where possible, avoid any loss or damage suffered by it.

The plaintiff's discovery indicates that the liquidators proposed a deed of company arrangement which would compromise the debts of Palmer Petroleum, and that Mr Palmer expressed interest in the proposal.[74] The plaintiff has not discovered any further documents evidencing or recording Mineralogy's consideration of the liquidators’ proposal.

Refer to DS, [8(d)(ii)] and [89]-[93].

Pleadings are yet to close.

Alternatively, the plaintiff accepts for purposes of litigation that Mineralogy could have provided funds to Palmer Petroleum.

The documents sought are relevant despite the plaintiff’s limited admission. Refer to DS, [89]-[93].

No change in circumstances demonstrated.

The likely existence of these documents was identified from a review of Mineralogy's discovery: (exhibit CPB-44 to Blaxill affidavit sworn 3 May 2024).

Category PN13 is granted.

The category seeks documents relevant to matters in issue in the proceedings.

There is sufficient cause to supplement the prior discovery orders to capture these documents.

PN14.

All documents evidencing or recording the payment(s) by Mineralogy of US$17,629,673.68 and AU$51,733.57 to BGP and its solicitors on or around 20 November 2017 and identification of the source of funds for those payments.

4ASOC, [39AA].

PP Defence, [39AA(vi)].

PP Reply, [1AA(e)], [23G].

The payments identified in this category were paid by or on behalf of Mineralogy prior to it receiving any RCB. The documents sought are relevant to:

(a) the plaintiff’s allegation that, had RCB been made when due, Mineralogy would have provided funds to Palmer Petroleum at relevant times and the related allegation that it could not have provided Palmer Petroleum funds from its own income generating activities;

(b) the allegations concerning Mineralogy’s Own Decision (as set out for extant category P28 in Appendix C).

Refer to DS, [6], [8(b)(i)], [8(d)(i)], [78]-[80] and [85]-[88].

Pleadings are yet to close.

Alternatively, the plaintiff accepts for purposes of litigation that Mineralogy could have provided funds to Palmer Petroleum).

The plaintiff also accepts the payment to BGP’s solicitors: PP Reply at [1AA(h)]. In circumstances where only Mineralogy is subject to the obligation in clause 9.1(e), and in light of the above, neither the fact of payment nor the sources of the funds for the payments is relevant and/or is disproportionate to the just and expeditious resolution of the issues in dispute.

Reply takes issue with legal effect of clause 9.1(e).

The documents sought are relevant despite the plaintiff’s limited admission. Refer to DS, [85]-[88] and [89]-[93].

No change in circumstances.

At Reply [23G(e)], the plaintiff alleges that 'at no time before the order that Palmer Petroleum be wound up in insolvency could Mineralogy, from its own income generating activities, provide funds to Palmer Petroleum to pay the amounts alleged'. In the face of this plea, the defendants are entitled to discovery of documents showing how Mineralogy came to access US$17,629,673.68 and AU$51,733.57 prior to its receipt of Royalty Component B and whether those funds were obtained from its own income generating activities.

Category PN14 is granted.

The category seeks documents relevant to matters in issue in the proceedings.

The pleadings have changed since the prior discovery orders were made.

PN15.

All documents evidencing the financial position of Blaxcell for the period from 1 January 2016 to 30 September 2017.

4ASOC, [42(d)], [42A], [43].

The plaintiff's alleged loss is now based on a diminution in the value of the shares in Palmer Petroleum or Blaxcell.

Refer to DS, [8(b)(ii)] and [81]-[84].

Pleadings are yet to close.

Alternatively, the CITIC Parties have not explained how PN15 is relevant to the issues in dispute.

Alternatively, PN15 should align with P33 and should read as follows:

All documents directly relevant to the value of the shares in Blaxcell Petroleum as at 8 June 2016 (ie, upon exercise of the Option).

Date range of 1 January 2016 to 30 September 2017 should also be inserted.

The CITIC Parties do not accept the proposed amendment: 4ASOC, [42A] alleges a diminution in the value of the shares in Palmer Petroleum or Blaxcell due to a lost opportunity to sell the PPLs between 1 January 2016 to 30 September 2017. Documents evidencing the financial position of Blaxcell for the duration of that period are relevant and there is no basis to limit the category to the value of shares in Blaxcell as at 8 June 2016. Further, the category defines the period in relation to which the financial position of Blaxcell is relevant. Responsive documents may have been prepared after 30 September 2017.

Category PN15 is granted.

The category seeks documents relevant to the quantum of loss claimed by the plaintiffs (particularly as to the value of Blaxcell), and thus seeks documents relevant to matters in issue in the proceedings.

There is sufficient cause demonstrated to order discovery of this category notwithstanding the prior orders made in 2019.

Date range should not be modified.

PN16.

Not used.

This category is no longer pressed.

No ruling required.

PN17.

Any company structure diagram, list or other document or group of documents identifying any entities or companies directly or indirectly controlled by Mineralogy during the period from 1 July 2015 to 30 June 2016.

1 July 2015 to

30 June 2016

4ASOC, [39AA].

PP Reply, [23G].

The documents sought are relevant to:

(a) the plaintiff’s allegation that, had RCB been made when due, Mineralogy would have provided funds to Palmer Petroleum at relevant times;

(b) the allegations concerning Mineralogy’s Own Decision (as set out for extant category P28 in Appendix C).

Refer to DS, [6], [8(b)(i)], [78]-[80] and [85]-[88].

Pleadings are yet to close.

Alternatively, the CITIC Parties have not explained how PN17 is relevant to [39AA] of the 4ASOC. [23G(i)(i)] of the PP Reply makes clear that Mineralogy would have funded Palmer Petroleum’s funding requirements from its own income generating activities (principally comprising RCA and RCB).

Otherwise, refer to P28 above.

Date range of 1 July 2015 to 30 June 2016 should be inserted.

The CITIC Parties accept the proposed amendment: date range 1 July 2015 to 30 June 2016.

The documents sought are relevant despite the plaintiff’s limited admission. Refer DS, [38], [50], [85]-[88] and [89]-[93].

Category PN17 is granted in amended form:

The category seeks documents relevant to sources of funding reasonably available to Mineralogy and Mr Palmer, and thus seeks documents relevant to matters in issue in the proceedings.

PN18.

All documents directly relevant to the value or likely value of the oil and condensate that was, or was likely to be or indicated to be, associated with or within the scope of PPL 556 between 1 January 2016 to 30 September 2017.

4ASOC, [34], [42(b)], [42A], [43].

Category PN18 is in the same form as extant category P31 (see Appendix C), but seeks documents from an earlier time period in light of amendments to paragraphs 42 and 42A of the 4ASOC since discovery was ordered in 2019.

Refer to DS, [8(b)(ii)] and [81]-[84].

Pleadings are yet to close.

Alternatively, date range of 1 January 2016 to 30 September 2017 should be inserted.

The CITIC Parties do not accept the proposed amendment: A further date range is unnecessary as the category is already appropriately narrowed by its terms, and documents evidencing the financial position of Blaxcell for the period 1 January 2016 to 30 September 2017 may have been prepared after 30 September 2017.

Category PN18 is granted.

The category seeks documents relevant to the quantum of loss claimed by the plaintiffs (particularly as to the value of the PPL identified), and thus seeks documents relevant to matters in issue in the proceedings.

There is sufficient cause demonstrated to order discovery of this category notwithstanding the prior orders made in 2019.

Date range should not be modified.

PN19.

All documents directly relevant to the value of the shares in Palmer Petroleum between 1 January 2016 to 30 September 2017.

4ASOC, [42], [42A], [43].

Category PN19 is drafted in the same form as extant category P33 (see Appendix C), but seeks documents from an earlier time period in light of amendments to paragraphs 42 and 42A of the 4ASOC since discovery was ordered in 2019.

Refer to DS, [8(b)(ii)] and [81]-[84].

Pleadings are yet to close.

Alternatively. date range of 1 January 2016 to 30 September 2017 should be inserted.

The CITIC Parties do not accept the

proposed amendment: A date range is unnecessary as the category is already appropriately narrowed by its terms, and documents relevant to the value of shares in Palmer Petroleum between 1 January 2016 to 30 September 2017 may have been prepared after 30 September 2017.

This category seeks documents directly relevant to the value of the shares in Palmer Petroleum. Those documents are relevant to the plaintiff's allegations that Palmer Petroleum suffered a diminution in value at 4ASOC, [42], [42A] and [43].

The documents sought in this category are the same as those sought by existing category P33 but with an extended timeframe due to the amendments introduced by the plaintiff in the 4ASOC.

As at today, the plaintiff has not asserted that this category seeks documents which are commercially sensitive. Nor could such an assertion be made reasonably where original category P33, which sought similar documents relevant to value, was ordered by consent.

Category PN19 is granted.

The category seeks documents relevant to the quantum of loss claimed by the plaintiffs (particularly as to the value of the shares in Palmer Petroleum), and thus seeks documents relevant to matters in issue in the proceedings.

There is sufficient cause demonstrated to order discovery of this category notwithstanding the prior orders made in 2019.

Date range should not be modified.

PN20.

All documents evidencing or recording expenditure in respect of:

(a) 'exploration and related activities'; and

(b) 'rental and keeping PPL 555, PPL 556 and PPL 557 in good standing'

as referred to in paragraph 42(ca) of the 4ASOC, including all payment records and documents identifying the source of funds for those payments.

4ASOC, [42(ca)].

PP Reply [23G(e)], [23G(f)].

The defendants propose to deny the new paragraph 42(ca).

Also refer to extant category 28 in Appendix C and category PN11 above.

Refer to DS, [8(b)(ii)] and [81]-[84].

Refer to P28 and PN11 above.

Despite the above protests and assertions, the plaintiff concedes, ultimately, that the documents are discoverable and have proposed an amendment to this category below.

Otherwise, in light of the response to those categories, PN20 is unduly broad and should be amended as follows:

All documents evidencing or recording expenditure in respect of:

(a) 'exploration and related activities'; and

(b) 'rental and keeping PPL 555, PPL 556 and PPL 557 in good standing'

as referred to in paragraph 42(ca) of the 4ASOC~~, including all payment records and documents identifying the source of funds for those payments.~~

Further, or alternatively, the CITIC Parties have not explained how it is that the source of the funds for payment of such expenditure (some of which was incurred several years before Palmer Petroleum’s insolvency) is sufficiently probative of a fact in issue so as to justify the burden of additional discovery.

The CITIC Parties do not accept the

proposed amendment: Source of funds documents are relevant despite the plaintiff's limited admission: DS: [85]-[88].

Category PN20 is granted in amended form:

All documents evidencing or recording expenditure in respect of:

(a) 'exploration and related activities'; and

(b) 'rental and keeping PPL 555, PPL 556 and PPL 557 in good standing'

as referred to in paragraph 42(ca) of the 4ASOC.

The category seeks documents relevant to the quantum of loss claimed by the plaintiffs and thus seeks documents relevant to matters in issue in the proceedings.

PN21.

To the extent not covered by extant categories P34 and P35, all documents relating to any actual or proposed sale or sale process concerning one or more of the PPLs (Potential Sale), between 1 January 2016 to 30 September 2017, including but not limited to:

(a) documents evidencing consideration by Palmer Petroleum, Blaxcell or Mineralogy (or on their behalf) of such a Potential Sale;

(b) sale marketing materials, information memoranda and the like;

(d) any due diligence material provided to or made available to potential purchasers in connection with any such Potential Sale;

(e) any correspondence with or reports from consultants or advisers engaged for the purposes of any Potential Sale or examining the prospect of such a Potential Sale;

(f) documents recording the terms of any proposed sale transaction;

(g) documents evidencing the reasons why any such proposed transaction did not complete.

1 January 2016
to
30 September 2017

4ASOC, [41A], [42], [42A].

The plaintiff now alleges loss based on an alleged loss of opportunity to sell the PPLs between early-2016 and mid-2017.

Refer to DS, [8(b)(ii)] and [81]-[84].

Pleadings are yet to close.

Category PN21 is granted.

Even if that was a sufficient objection, the pleadings have now closed.

[74] Fourth Blaxill Affidavit, [23], attachment CPB-44.

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
18 SEPTEMBER 2024