Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 11] - [2025] WASC 131

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   SINO IRON PTY LTD -v- MINERALOGY PTY LTD [No 11] [2025] WASC 131
CORAM:   LUNDBERG J
HEARD:   10 & 16 APRIL 2025
DELIVERED          :   21 APRIL 2025
PUBLISHED           :   22 APRIL 2025
FILE NO/S:   CIV 2336 of 2023
BETWEEN:   SINO IRON PTY LTD
First Plaintiff
KOREAN STEEL PTY LTD
Second Plaintiff
CITIC LIMITED
Third Plaintiff
AND
MINERALOGY PTY LTD
First Defendant
STATE OF WESTERN AUSTRALIA
Second Defendant

Catchwords:

Practice and procedure - Application by Mineralogy for extension of time for filing expert evidence in close proximity to trial - Whether proposed evidence relevant or objectionable - Consideration of first defendant's explanation for delay - Consideration of delay and prejudice - Case management considerations - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 1 r 4A, O 1 r 4B, O 3 r 5(1)

Result:

Extension of time to file and serve expert evidence granted in part.

Category: B

Representation:

Counsel:

First Plaintiff	:	J H Kirkwood SC, T B Maxwell & R O'Brien
Second Plaintiff	:	J H Kirkwood SC, T B Maxwell & R O'Brien
Third Plaintiff	:	J H Kirkwood SC, T B Maxwell & R O'Brien
First Defendant	:	P Dunning KC, M Karam, H Cooper & D Fawcett
Second Defendant	:	No appearance

Solicitors:

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

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

Coal Hub Pty Ltd v NSL Consolidated Ltd [No 2] [2016] WASC 257
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303
FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268
Ogbonna v Programmed Integrated Workforce Ltd [No 2] [2022] WASCA 79
Ratnam v Cumarasamy [1964] 3 All ER 933
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 10] [2025] WASC 130
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 4] [2025] WASC 25

Table of Contents

A. Introduction

B. Orders sought and materials relied upon

C. Background to the present application

Overview

Hearing on 30 January 2025

Orders made on 3 February 2025

The plaintiffs' expert evidence

The first defendants' expert evidence

D. The respective position of the parties

E. Relevant principles

F. Disposition

Overview

Mr Turner's report

Mr Hartman's report

G. Conclusion and orders

ATTACHMENT A Analysis of Mr Turner's Report

LUNDBERG J:

A. Introduction

These reasons concern a contested interlocutory application in the 2023 MCP Proceeding filed by the first defendant (Mineralogy), in close proximity to trial.[1] The application was filed by Mineralogy on 1 April 2025, just one month from trial, seeking a one month extension of time to file two expert reports, together with associated directions (the Expert Evidence Application).[2]
[1] I will generally use the definitions employed in previous interlocutory decisions of the Court in this action.
[2] Folio 187.
Absent the extension, Mineralogy would be precluded from formally adducing any expert evidence at trial. The refusal of the application would thus cause prejudice to the first defendant in very real respects.[3]
[3] DS2 [3].
The Expert Evidence Application was heard for a full day on 10 April 2025. At the conclusion of the hearing on 10 April, I adjourned that application for further hearing on 16 April, given the overlap with Mineralogy's pleading amendment application.
I dismissed the pleading amendment application on 16 April and provided the parties with my reasons in relation thereto on 18 April.[4] The present reasons should be read together with those earlier reasons.
[4] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 10] [2025] WASC 130.
The two experts engaged by Mineralogy are Mr Troy Turner and Mr Wouter Hartman. Mineralogy served the detailed reports of these experts on the plaintiffs on 27 March and 28 March. I refer to the report of Mr Turner[5] and the report of Mr Hartman.[6] The expert evidence was due on 28 February.[7]
[5] Which is attached to the second affidavit of Ms Robinson sworn 27 March 2025 (Folio 171).
[6] Which is attached to the third affidavit of Ms Robinson sworn 28 March 2025 (Folio 174).
[7] Orders of the Court made on 23 December 2024 [3].
Mr Turner has a Bachelor of Applied Science in Geology and has expertise in, among other things, exploration program planning, resource estimation and due-diligence mining studies. Mr Hartman has mining and civil industry experience, principally connected with tailings, geotechnical and rock engineering.
Mineralogy also served an expert report prepared by Mr Paul Matthew O'Callaghan, a mining engineer, which was contained in his affidavit sworn on 25 March (being Folio 159).[8] Those reports were directed to the issues arising in the proposed amendments, which the Court dismissed on 16 April. The Court accordingly refused leave to Mineralogy to rely on Mr O'Callaghan's evidence at trial.[9]
[8] A further version of the report was attached to his affidavit sworn 9 April 2025, but there was no difference of any substance between the reports.
[9] Orders of the Court made on 17 April 2025 (as to expert evidence) [2].
At the conclusion of the hearing on 16 April I reserved my decision in respect of the balance of the expert evidence, being Mr Turner and Mr Hartman's evidence. On 17 April, the Court made orders to extend time to permit Mineralogy to rely on that evidence in certain respects only, namely:
(a)as to Mr Turner's report, only as to questions 1, 2, 6, 7, 12 and 13 (inclusive); and
(b)as to Mr Hartman's report, only as to questions 1 and 2 (inclusive).
The following reasons explain why I considered those orders were appropriate.
I will vary the above orders to extend time to permit the first defendant to also rely on Mr Turner's report in respect of question 11.

B. Orders sought and materials relied upon

The first defendant's chamber summons sought the following orders:
(a)extensions of time for Mineralogy to file and serve its primary expert evidence as ordered on 23 December;
(b) an order to amend Mineralogy's Minute of Primary Expert Evidence (Attachment A to the orders made on 31 January) in the terms of the minute attached to the first defendant's solicitor's email to the plaintiffs' solicitors of 26 March;
(c)an order requiring the CITIC Parties to notify Mineralogy in writing whether they intend to file and serve any expert evidence in response to Mineralogy's Primary Evidence;
(d) a consequential extension of time to permit the CITIC Parties to file and serve any expert evidence in response to Mineralogy's Primary Evidence;
(e)adjustments to the time for the expert conference to be held (which will be on 24 April 2025) and for objections to be notified (to be extended to 18 April 2025); and
(f)associated directions at [4] and [5] of the chamber summons concerning the production of plan views, cross-sectional views and tables by the parties, to be admitted at trial.[10]
[10] This last aspect of the application was dismissed by the Court on 16 April with short oral reasons given.
In support of the application, Mineralogy relied upon several affidavits sworn by Mr Robinson, being:
(a)the affidavit sworn on 26 March (Folio 169);
(b)the second affidavit sworn on 27 March (Folio 171, to which was attached Mr Turner's report);
(c)the third affidavit sworn on 28 March (Folio 174, to which was attached Mr Hartman's report);
(d)the fourth affidavit sworn on 3 April (Folio 190); and
(e)the fifth affidavit sworn on 10 April (Folio 205).[11]
[11] Which together run to over 1,200 pages.
The CITIC Parties filed an affidavit sworn by Mr John on 8 April 2025 in opposition to the extension application (Folio 198).[12] A letter from the plaintiffs' solicitors to the solicitors for Mineralogy dated 31 March 2025 was also handed to the Court during the hearing, without objection, which letter set out the objections of the plaintiffs to the late filed expert evidence.
[12] Which is 163 pages long.
I also received three sets of submissions from Mineralogy, dated 3, 9 and 12 April 2025 (DS1, DS2 and DS3), and an outline from the CITIC Parties dated 8 April 2025 (PS).[13]
[13] Folios
One aspect of the submissions advanced by Mineralogy which I should briefly mention is the contention that the CITIC Parties were seeking to, in effect, split their case through their approach to the filing of the expert evidence. I do not apprehend that to be the intention of the plaintiffs, nor the effect of their approach, and I can put that contention to one side.

C. Background to the present application

Overview

The Court has addressed expert evidence issues in this action at directions hearings on at least three prior occasions, being the hearing on 10 September 2024, the hearing on 5 December 2024, and the hearing on 30 January 2025.[14] The Court has made a series of directions concerning the preparation and filing of expert evidence, with leave having been granted to the parties to adduce expert evidence by the orders made on 11 September 2024.
[14] Affidavit of David William John sworn 8 April 2025 [5] – [7].
Further, early in the life of this action, the plaintiffs informed the Court and the first defendant that it was likely one expert would be called in support of the plaintiffs' case. This indication appears in an affidavit of Mr John sworn on 15 March 2024 (Folio 34). Mr John deposed as follows:
[28]In this proceeding, I consider that it is likely that the plaintiffs will call the following witnesses:
(a) one lay witness who will give technical lay evidence of the same kind and to the same effect as Mr Goodwin gave in the 2017 MCP Proceeding, in relation to the relevant functional components in the 2023 MCPs, including updated evidence as to:
(i) the status of each of the key functional components; and
(ii) the effect of the current constraints on the Project; and
(b) (possibly) one expert, who would give similar evidence to that given by Professor Williams in the 2017 MCP Proceeding in relation to the relevant functional components in the 2023 MCPs.
In December 2024, the Court was informed by the plaintiffs that it proposed to brief an expert witness in the field of mine waste management. In the course of December 2024 and through to the hearing on 30 January 2025, the Court was provided with a detailed minute by the plaintiffs which set out the questions, facts and assumptions which would form the basis of the proposed brief to the expert in question.

Hearing on 30 January 2025

Further background to the expert evidence orders which have been made is set out in the reasons delivered on 31 January 2025 following the hearing on 30 January 2025: Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 4].[15]
[15] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 4] [2025] WASC 25.
In those reasons, I favoured an approach which would hold over the determination of the relevance dispute until the expert evidence has been exchanged, for resolution at a later date, but in advance of the trial.
Nonetheless, I expressed some caveats on the latitude given to the parties, including the need to ensure the proposed evidence was relevant to the matters in issue having regard to a fair reading of the pleadings, and were not vague or confusing, among others.[16]
[16] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 4] [33] – [37].
The transcript of the hearing on 30 January 2025 records the following observations I made concerning the pleadings generally, as well as reminding the parties the present case was to be fought by reference to the pleadings filed in this case, not those filed in the 2017 MCP Proceeding heard by Kenneth Martin J:[17]
LUNDBERG J: Can I just make an observation about the pleadings point. It seems to me it's a relatively orthodox approach for this court to consider matters of relevance by reference to [them], where pleadings have been extensively set out by the parties, where people have sought to make amendments to the pleadings, where particulars have been sought, where discovery applications have been focused around the pleadings, that it is the pleadings which will drive, ultimately, questions of relevance.
And it would be unusual in the extreme to say that the pleadings in another case, even involving the same parties and on similar issues, unless expressly incorporated into the pleadings in some way or admitted by another party, the opposing party, somehow represent the battleground. That would strike me as a very unusual position.
And I'm not sure I understand Mr Dunning to be saying that at this stage, other than really pointing to other material to sort of make good certain points, and I don't want to be taken by virtue of not having complaint at this stage about all the other material to say, “Well, your Honour seems to be accepting that the 2017 proceeding, 2022 trial, represents what this case is about.” I mean, it's not how I've approached it. In fact, quite the opposite, I would say, given the existence of that earlier proceeding. If equivalent matters are not expressly raised in this proceeding, it tends to emphasise the point of irrelevance, not make the point.

Orders made on 3 February 2025

[17] ts 1136 (30 January 2025).

Following the hearing on 30 January 2025, the Court made two sets of formal orders on 3 February 2025.
The first orders related to the plaintiffs' primary expert evidence (Folio 108).
It was ordered that the parties be permitted to brief an expert witness in the field of 'mine waste management' in accordance with the questions, facts and assumptions recorded in Attachment A of the minute of orders filed by the plaintiff dated 31 January 2025, but without prejudice to any party's right to dispute the facts and assumptions where indicated prior to this order, or otherwise to object to the admissibility of witness or documentary evidence.
The second set of orders related to the first defendant's primary expert evidence (Folio 109).
It was ordered that the parties be permitted to brief expert witnesses in the fields of 'mine waste management', 'mine planning' and 'mine or town planning or engineering' in accordance with the questions, facts and assumptions recorded in Attachment A of the minute of orders dated 31 January 2025 and filed by the first defendant on 2 February 2025. As with the orders regarding the plaintiffs' evidence, this was expressed to be without prejudice to any party's right to dispute the facts and assumptions where indicated prior to this order, or otherwise to object to the admissibility of witness or documentary evidence.

The plaintiffs' expert evidence

On 31 January 2025, and consistent with the indication given to the Court and to Mineralogy in March 2024, the CITIC Parties filed an expert report of Professor David Williams. A short, supplementary expert report from Professor Williams was subsequently filed on 17 February 2025, setting out corrections to the primary report.[18]
[18] Folios 104 and 117.
Professor Williams is a Professor of Geotechnical Engineering at QUT, with some 40 years of teaching, research and consulting experience. His report indicates he has been internationally recognised for his expertise and experience in mine waste management.
Among other matters, Professor Williams has expressed opinions as to:
(a)the technical and economic considerations which inform the planning and design of surface TSFs and WRDs;
(b)the technical and economic considerations which inform the identification of the footprint of a surface TSF and WRD;
(c)whether it would be possible to store sufficient tailings in the current TSF for the Project (as at 18 August 2023) to enable the relevant plaintiffs to mine and process 2 Bt of magnetite ore;
(d)whether the Northern TSF in the 2023 MCPs are required to enable the relevant plaintiffs to continue to exercise their combined rights to mine and process 2Bt of magnetite ore; and
(e)whether the new and expanded WRDs proposed in the 2023 MCPs are required to enable the relevant plaintiffs to continue to exercise their combined rights to mine and process 2Bt of magnetite ore.

The first defendants' expert evidence

As noted above, Mineralogy filed its expert evidence on 27 and 28 March 2025, being the reports of Mr Turner and Mr Hartman.

D. The respective positions of the parties

Mineralogy has explained in its submissions that:
(a)the evidence of Mr Turner and Mr Hartman is relevant to the matters arising on the pleadings;[19]
(b)the CITIC Parties delayed in the provision of the minute of its expert evidence, which was filed two weeks late and had a disproportionate impact on Mineralogy given the Christmas period;[20]
(c)the CITIC Parties delayed in the provision of technical information which has created prejudice for Mineralogy;[21]
(d)it considers the current application is 'principally concerned with redressing Mineralogy' for the prejudice occasioned by the late provision of expert evidence and discovery on the part of the CITIC Parties;[22] and
(e)a refusal of the extension would cause significant prejudice to Mineralogy in that it would not be permitted to rely on any expert evidence at trial, in contrast to the potential impact on the CITIC Parties' ability to prepare for trial and prepare responsive material, against the background of a submission that the extension will not imperil the trial dates.[23]
[19] DS1 [21] – [23] and [24] – [26]; DS2 [4].
[20] DS1 [2] – [12]; DS2 [2] and [11] – [14].
[21] DS1 [13] – [15].
[22] DS1 [1].
[23] DS1 [27] – [28]; DS2 [15] – [15].
The connection between the late filing of evidence by the plaintiffs (relative to the initial schedule) and the late provision of technical information by the plaintiffs, on the one hand, and the first defendant's delay in finalising its expert evidence, on the other, is a point which has been reiterated by senior counsel for the first defendant in several hearings before the Court, and in numerous sets of submissions.
The CITIC Parties disagree with this characterisation, and the connection emphasised by Mineralogy to which I have just referred, and oppose the extension and orders sought. The CITIC Parties submit that:
(a)significant portions of the proposed evidence are objectionable as being irrelevant to the matters in issue or overly vague and lacking in reasoning;[24]
(b)the difficulties which presently arise stem in part from Mineralogy's unwillingness to formulate any questions, facts or assumptions in respect of expert evidence when it ought to have done so;[25]
(c)Mineralogy has no reasonable excuse for the late delivery of its expert evidence, as its expert evidence is not responsive to the evidence of Professor Williams, as Mineralogy appears to have delayed in the process of engaging its experts until the second half of February 2025, as the delay in seeking technical information from the CITIC Parties may be seen as connected to the late engagement of the experts by Mineralogy's solicitors, as there is nothing in Mr Hartman's report to indicate it is based on the technical information in question, and as Mr Turner's report relies mainly on earlier provided information;[26]
(d)Mineralogy did not ultimately decide to proceed with formally instructing experts to prepare expert reports until the week of 10 March 2025; and
(e)material prejudice is likely to result if Mineralogy is permitted to rely on this expert evidence, in terms of their preparation for trial and the ability of the CITIC Parties to respond to this material.[27]
[24] PS [28] – [33].
[25] PS [11].
[26] PS [12] - [22].
[27] PS [4], [23] – [24], [25] – [27].

One aspect of the evidence filed by Mineralogy which was emphasised by the plaintiffs' senior counsel is mentioned at par (d) above. That is, it was submitted by the CITIC Parties that Mineralogy simply left it too late to engage with its experts and to instruct them to prepare reports. Indeed, not until the week of 10 March 2025 did Mineralogy make a final decision to formally instruct its experts to prepare reports for this matter. So much has been candidly deposed to by Mineralogy's solicitors.[28]
[28] First Robinson Affidavit [27]; DS1 [26].
One consequence flowing from the foregoing approach has been that there are matters now identified in the reports of Mr Turner and Mr Hartman which are not identified within the first defendant's defence. In some respects, as noted below, the expert evidence exceeds the pleaded case and raises issues which ought to have been fairly and expressly pleaded by Mineralogy to put the plaintiffs on notice of the case to be run at trial.
As to the objections based on the material being vague or lacking in reasoning, it is orthodox that an expert must sufficiently reveal their reasoning, based upon their expertise, to enable their conclusions to be tested and a judgment made by the Court as to their reliability. This must be done in chief, and not left for the cross-examiner to discover. I refer, in this regard, to the principles collected by Beech J in Coal Hub Pty Ltd v NSL Consolidated Ltd [No 2],[29] as follows:
(a) an expert opinion must be in a field of specialised knowledge in which, or in the relevant part of which, the witness demonstrates that by reason of specialised training, study or experience, he or she has become an expert;
(b) the expert must state the facts or assumptions on which their opinion is based;
(c) the facts on which the opinion is based must be proved by admissible evidence;
(d) an expert must sufficiently reveal their reasoning, based upon their expertise, from assumptions to conclusions or inferences;
(e) expert evidence must explain how the expert's special knowledge applies to the facts and matters assumed to produce the opinion;
(f)the process of reasoning that leads to the expert's conclusions must be stated or revealed in a way that enables those conclusions to be tested and a judgment made about the reliability of them; and
(g)this must be done in chief, and not left for the cross-examiner to discover.
[29] Coal Hub Pty Ltd v NSL Consolidated Ltd [No 2] [2016] WASC 257.
Given the lengthy written submissions filed by the respective parties, and the extensive oral submissions made by both senior counsel, and having regard to the pressing demands on the Court's time, I will not delay these reasons by further rehearsing the detail of all of the arguments raised by the parties. I will set out below the principles which I applied to the determination of the application, which were not in dispute between the parties, and then explain why I made the orders in the terms that I did on 17 April 2025.

E. Relevant principles

The Court has a discretion to extend the periods of time in which parties have been ordered to take a step in the proceedings. That express power is found in O 3 r 5(1) RSC. Rule 5(1) provides:
(1) The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorised by these rules, or by any judgment, order, or direction, to do any act in any proceedings.
That is a remedial provision which confers on the Court a broad power to relieve against injustice.[30] Nevertheless, a party in breach of a requirement of the rules or an order of the Court does not have an unqualified right to an extension - the time limits must be obeyed and not seen as optional.[31] The plaintiffs correctly submit that the discretion may only be exercised on the basis of material that justifies the extension of time sought.[32]
[30] FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268, 283.
[31] Civil Procedure [3.5.1].
[32] Ratnam v Cumarasamy [1964] 3 All ER 933, 935 (Guest LJ).
Further, the plaintiffs correctly submit that an application under the rule must ultimately be determined having regard to the interests of justice in all the circumstances of the case, including taking into account case management considerations.[33]
[33] Ogbonna v Programmed Integrated Workforce Ltd [No 2] [2022] WASCA 79 [105] (Quinlan CJ, Murphy and Beech JJA) and the cases cited therein.
Case management considerations are essentially those embodied in O 1 r 4A and O 1 4B(1) RSC. Those considerations should be approached and applied in a manner consistent with the philosophy endorsed by the High Court in Aon Risk. The Court in Aon Risk Services was specifically addressing the question of late pleading amendments. However, the Court explained in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd[34] that these principles had application to interlocutory applications more generally.
[34] Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303.

F. Disposition

Overview

The present application requires the Court to have regard to a number of discrete issues as part of the overall analysis. The principal issues which arise in this case, which must be considered against the backdrop of the case management considerations noted above, are:
(a)what is the causative explanation for the delay or failure to comply with the Court's timetable and orders;
(b)what is the likely prejudice which Mineralogy would suffer in the event the extension was not granted;
(c)what is the likely prejudice which the plaintiffs would suffer in the event the extension is granted, and allied to this, what would be the likely impact on the management of the action and the degree of peril to holding the trial dates; and
(d)in the interests of justice, are there other case management or other directions which can be made to balance the competing interests of the parties and to facilitate the goal and objects in O 1 r 4A and O 1 r 4B RSC.
Mineralogy has been aware since March 2024 that the plaintiffs intended calling one expert witness who would give similar evidence to that given by Professor Williams in the 2017 MCP Proceeding, concerning tailings and waste rock.
On 27 November 2024, the plaintiffs served on Mineralogy their minute of expert evidence.[35] That was a delay of 2 weeks relative to the orders made on 11 September 2024, which required that the minute be filed on 13 November 2024. The plaintiffs' minute is comprehensive, and sets out the specific questions to be asked of the expert, and the facts and assumptions on which the expert is to based his opinion.
[35] Affidavit of David William John sworn 4 December 2024, [13] and Attachment DWJ-1.
Consistent with the orthodox approach in such matters, the minute addressed the questions, facts and assumptions relevant to the plaintiffs' proposed expert evidence, and did not address the nature and scope of the expert evidence which Mineralogy proposed to adduce. Indeed, by order 28 of the orders made on 11 September 2024, Mineralogy was directed to provide, once it had received the plaintiffs' minute, an amended form of the minute identifying any additional expert evidence that it would seek to adduce at trial.
Mineralogy made it abundantly clear during the hearing of his application that it considered there was a need to 'redress' Mineralogy for the prejudice case by the late provision of material by the plaintiffs. This issue invites attention to the causal connection between the conduct of the plaintiffs and the delay which has resulted in the provision of Mineralogy's expert evidence.
I was taken through the course of events at some length by senior counsel for Mineralogy, and in response by senior counsel for the plaintiffs. For my part, I did not find the asserted causal connection as being particularly convincing, although I recognise that it is difficult to disentangle explanations for delays on the basis of affidavit evidence alone.
The delay in the filing of the expert evidence on the part of Mineralogy is, in significant respects, explained by its own conduct as to the engagement of the experts and the provision of instructions to them.
No doubt a party in the position of Mineralogy, as a defendant to an action, may elect to wait until the last point in the court-ordered timetable to decide to file its expert evidence. A defendant is not obliged to file expert evidence.
But a defendant, like all parties, is not at liberty to thereby choose to delay the preparatory steps required for that expert evidence to be assembled.
It is well-understood that a party who consciously delays the preparation of its evidence in a manner which then requires an extension of the timetable and thus an indulgence to be granted, is at serious jeopardy of that indulgence not being forthcoming.
The interests of justice will need to be assessed in these circumstances, but the scenario just outlined requires close attention to the resulting prejudice which may flow to the counter-party (and to the management of the action) if the late-party is to be relieved of the consequences arising from its calculated decision.
It is also important to consider, as part of the determination of this Expert Evidence Application, whether the reports of Mr Turner and Mr Hartman are irrelevant or otherwise objectionable as contended by the CITIC Parties. Indeed, if, on analysis, the Court were to conclude that significant portions of the reports were objectionable, and ought not be allowed even if an extension was granted, the extent of any prejudice to the plaintiffs and the relative impact of case management consideration of granting leave for the balance of the evidence (to the extent it significantly reduces the extent of the material which needs to be considered and potentially responded to) might be more readily tolerated by the Court, in the interests of justice.

Mr Turner's report

I will address Mr Turner's report first.
Mr Turner's report incorporates his opinions in respect of 23 questions and is 129 pages in length, with the substantive body of his report occupying 63 pages.
I have formed the view that evidence in respect of the several of the questions would not be relevant to the matters in issue in the action, having regard to the pleaded cases of the parties, and in respect of several of the questions I have noted that the issue raised by the question is inconsistent with the refusal by the Court of the amendments which were sought by Mineralogy in January 2025.
As to the amendments which were refused in January 2025, I refer in particular to the broad allegations which were sought to be raised in Annexure 1 to the defence concerning the standard of care, skill and diligence that would normally be expected internationally of a professional and competent organisation implementing an equivalent project and in accordance with Good Industry Practices. The current pleading raises only narrow issues in this regard, as is evident from [27A(a)] and [40(a)] of the FAD.
Further, and in any event, the brevity and lack of reasoning in respect of the answers to several questions means that those opinions are objectionable on this basis as well.
The questions which I consider are not plainly objectionable are question 1, 2, 6, 7, 11, 12 and 13 (inclusive). My rulings in respect of the remaining questions (and Mr Turner's expressed opinions) are set out in Attachment A to these reasons.
When the report of Mr Turner is assessed by reference to the seven questions I have identified above, I am satisfied that the prejudice to the plaintiffs by allowing the extension of time, albeit that the proffered explanation for the delay is not particularly convincing, can be tolerated, especially when weighed against the alternative that Mineralogy would be denied the ability to adduce any evidence from Mr Turner.
As noted above, I recognise it is difficult to disentangle explanations for delays (and their impact) on the basis of affidavit evidence alone. I conclude there is at least an arguable contention that the delays on the part of the CITIC parties had some impact on Mineralogy's preparation, but I am not satisfied the impact is as significant as Mineralogy contends.
Indeed, it appears to me that Mineralogy left the process of engaging with and instructing Mr Turner until too late in the day, as is apparent from the chronological course of events which senior counsel for the plaintiffs took me through during oral argument at the hearing on 10 April.
I will allow an extension of time to Mineralogy to rely on those parties of Mr Turner's report which I have identified above.

Mr Hartman's report

Mr Hartman's report is, with respect, extremely difficult to follow. His report is around 140 pages in length, with the substantive opinions expressed over some 40 pages or so, including a summary on pages 9 to 11 of the report.
Mr Hartman was briefed to answer five questions, as follows:
1.If the CITIC Parties were to construct the WRDs and the Northern TSF in the form proposed in the 2023 MCPs, to what extent would that impact, and if so how, the mine waste management of future mining, processing and export operations exploiting the mineral resource beyond the three billion tonnes of magnetite ore mined and processed at the conclusion of the Sino Iron Project, including the use of the Western G08/74 Area?
2.What are the practices of a mine proponent exercising the standard of care, skill and diligence normally to be expected internationally of a professional and competent organisation implementing a project equivalent to the Sino Iron Project as they relate to mine waste management planning?
3.Are Good Industry Practices, as they relate to mine waste management, any different to the practices you identify in your answer to question 2 and, if so, in what way?
4.When would a mine proponent in Sino Iron's and Korean Steel's position, exercising the standard of care, skill and diligence that would normally be expected of a professional and competent organisation implementing a project equivalent to the Sino Iron Project, and acting in accordance with Good Industry Practices, have commenced planning for the expansion of tailings storage facility beyond that which was provided for in the 2010 Approved Proposals?
5.How would the:
(a) Northern TSF proposed in the 2023 MCPs; and/or
(b) new and expanded WRDs proposed in the 2023 MCPs,
impact upon:
(c) the mining and processing upon Mineralogy's tenements within Area A by Mineralogy, associated or other parties in addition to the Sino Iron Project; and/or
(d) the mining and processing of 3 billion tonnes of magnetite ore by Sino Iron and Korean Steel and Balmoral Iron.
The first point to observe is that it does not appear that any delays on the part of the CITIC Parties could have had any impact on the timing of the engagement of Mr Hartman or the preparation of his evidence. I do not discern from his report, which is not responsive to Professor Williams' report and does not rely on information adduced by the CITIC Parties, any causal connection in this regard.
I am more able to see the lack of any cogent explanation for the delay in filing Mr Hartman's report, than can be deduced in respect of Mr Turner's report. It is therefore troubling that Mr Hartman's report has arrived one month late, and so close to trial.
Turning to the content of the report, I do not consider that questions 1 and 2 are plainly objectionable although I am concerned as to the assistance the Court will receive from the evidence which is set out in the report, particular as concerns question 2 which is expressed in very general terms. No doubt I will be further assisted in this regard at trial by senior counsel for the first defendant providing a careful analysis of the evidence relevant to the pleaded allegations.
As to questions 3, 4 and 5, the responses to those questions within the report of Mr Hartman lack identified reasoning in a manner or to an extent that would sufficiently permit scrutiny by the Court of the reasoning and opinions. This is particularly evident in respect of questions 3 and 4.
In response to question 3, Mr Hartman expresses an opinion as to whether a company would deviate from the contractual definition of Good Industry Practices, which he asserts are aligned with global industry standards and other guidelines. Mr Hartman then lists several international guidelines.
In response to question 4, Mr Hartman has set out a lengthy opinion which is extremely difficult to follow, with respect. Various documents are relied upon by Mr Hartman including ASX corporate governance documents, an 'AI Overview' (which is not explained), a 'Guide to the Management of Tailings Facilities', JORC Code references, and numerous CITIC policies.
In response to question 5, Mr Hartman expresses brief opinions as to the impacts his opinion was sought in relation to, at [146] and [147]. Mr Hartman refers to the likely need for additional land for waste rock dumps, tailing storage facilities and other infrastructure, and opines that the landscape and drainage patterns are also likely to be altered 'because of the additional land clearance and surface topography changes impacts'. Those matters are not expressly pleaded by Mineralogy in its defence. It is important in this regard to focus attention not only on the question posed to the expert, but also on the nature of the opinion intended to be expressed at trial.
The opinion found at [147] is expressed in broad terms, as to the negative impact on Mineralogy's tenements said to 'likely result in a negative economic devaluation of the land and diminishing reserves'.
If Mr Hartman's report was allowed to stand and be relied upon at trial, in its entirety, I consider there would be significant prejudice to the plaintiffs in terms of their ability to respond to the evidence in a timely way and be ready for trial, even allowing for a short delay in the start of the trial. I weigh this prejudice against the significant prejudice to the first defendant by being denied an ability to rely on this evidence.
Perhaps most decisively in relation to Mr Hartman's evidence is the lack of any cogent explanation for the delay, other than the late decision taken to formally instruct Mr Hartman to prepare the report.
However, I do not consider that I should permit Mineralogy to rely on the opinions of Mr Hartman in response to questions 3, 4 and 5 on admissibility or relevance grounds. There is a palpable lack of reasoning in Mr Hartman's report in respect of these questions, and I further note the failure by Mineralogy to expressly plead the specific issues in respect of which Mr Hartman will express the opinions which are found in [146] and [147] of the report.
So, quite apart from the discretionary extension of time question, I would not allow these aspects of Mr Hartman's report to stand which I consider are plainly objectionable. I accept the plaintiffs' submissions in this regard.
In these circumstances, I consider the prejudice which would flow to the plaintiffs from the late delivery of the report of Mr Hartman, and the consequences for the running of the trial, can be tolerated when the report is examined by reference to questions 1 and 2 only. Mineralogy should have leave to rely upon the report in this regard.
Only having disallowed certain aspects of the two expert reports, on the particular grounds identified above, was I able to be satisfied that the prejudice to the plaintiffs could be tolerated, and the likely need to vacate the trial could be reduced to an appreciable extent. Had it been necessary to consider whether, in effect, I should give an extension of time to Mineralogy to permit the entirety of these two reports to be relied upon at trial, I would have concluded that the prejudice to the plaintiffs was so significant, and the impact on the trial so great, that the extensions ought not be granted in the interests of justice.

G. Conclusion and orders

For the foregoing reasons, I ordered on 17 April that the Expert Evidence Application be allowed in part. The formal orders made by the Court were as follows (which I will vary in part as foreshadowed earlier in these reasons):
1. As to the first defendant's application by chamber summons dated 1 April 2025 for leave to extend time to file its primary expert evidence, the time by which the first defendant is to file and serve its primary expert evidence pursuant to paragraph 3 of the orders made on 23 December 2024 is extended to 28 March 2025 only insofar as the following parts of the expert reports are concerned:
(a) as to Mr Troy Turner's report, which is attached to the affidavit of Tracey Robinson sworn 27 March 2025 (Folio 171), only as to questions 1, 2, 6, 7, 12 and 13 (inclusive); and
(b) as to Mr Wouter Hartman's report, which is attached to the affidavit of Tracey Robinson sworn 28 March 2025 (Folio 174), only as to questions 1 and 2 (inclusive).
2. The first defendant is refused leave to rely at trial upon the expert evidence of Paul Matthew O'Callaghan as contained in either his affidavits sworn on 25 March 2025 or 9 April 2025, being Folio 159 and Folio 199 respectively.
3. Further directions as to the consequential matters arising from orders 1 and 2 above are to be addressed at the next available hearing in the action.
I will hear from the plaintiffs as to the time needed to prepare responsive evidence and will hear from the parties as to the changes which may be needed to the commencement of the trial, recognising that there is a formal application by Mineralogy to adjourn the trial, which is listed to be heard on 23 April.

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

22 APRIL 2025

ATTACHMENT A
Analysis of Mr Turner's Report

No.	Question	Expert's Opinion	Ruling
1	How can the amount of waste rock and tailings produced by the extraction of two billion tonnes of magnetite ore at the Sino Iron Project be estimated?	Allowed.	Allowed.
2	How can the amount of waste rock and tailings produced by the extraction of two billion tonnes of magnetite ore at the Sino Iron Project be estimated?	Allowed.	Allowed.
3	What are the technical and economic considerations informing the life of mine planning of the expansion of the mine pit and waste storage capacity of a mining, processing and export operation equivalent to the Sino Iron Project?	Mr Turner expresses opinions as to the level of detail required in the decision making for the expansion of a large scale operation such as this, being at least to the level of a pre-feasibility study. Mr Turner analyses the JORC Code and the AusIMM Cost Estimation Handbook, and addresses the levels of confidence required for a scoping study, a pre-feasibility study and a feasibility study.	Irrelevant to any matter in issue.
4	What are the technical and economic considerations informing the planning and design of a multi-user area like Area A?	Mr Turner identifies numerous items which would require consideration. Planning and design of a multi-user area is not identified as an issue on the pleadings.	Irrelevant to any matter in issue. Lacks identified reasoning in a manner or to an extent that would sufficiently permit scrutiny by the Court of the reasoning and opinions.
5	What are the technical and economic considerations informing the planning and design of a mining, processing and export operation that is exploiting mineral resource remaining after the conclusion of a project like the Sino Iron Project?	Mr Turner answers this question in 3 short paragraphs, and references the items identified in answer to question 4 as well as other items, and repeats reference to the pre-feasibility study level of confidence. Planning and design of an operation after the conclusion of the Sino Iron Project is not identified as an issue on the pleadings.	Irrelevant to any matter in issue. Lacks identified reasoning in a manner or to an extent that would sufficiently permit scrutiny by the Court of the reasoning and opinions.
6	How, if at all, do the considerations you identify in your answers above inform: (a) the planning and design of interim phases of a mining, processing and export operation equivalent to Sino Iron Project? or (b) an assessment of a proposal for such interim phases like the 2023 MCPs?	Allowed (except to the extent the opinion concerns questions 3, 4 and 5 above).	Allowed (except to the extent the opinion concerns questions 3, 4 and 5 above).
7	Based on your answers to the above, could a careful and competent project proponent in the position of Mineralogy complete an assessment of whether to submit for approval the 2023 MCPs without Sino Iron and Korean Steel identifying the measures (other than those in the 2017 MCPs) by which they propose to: (a) mine and process up to two billion tonnes of magnetite ore? Or (b) fully implement the Sino Iron Project (that is, for the mining and processing of up to three billion tonnes of magnetite ore)?	Allowed.	Allowed.
8	What are the practices of a mine proponent exercising a standard of care, skill and diligence that would normally be expected internationally of a professional and competent organisation implementing a project equivalent to the Sino Iron Project, as they relate to mine planning for the expansion of the mine pit and waste storage capacity to remain adequate for the rate of production and life of mine pursued by the mine proponent for the purposes of the project?	Mr Turner provides an opinion as to the timing for a full project life of mine plan, to be every 3 years, with an interim life of mine plan annually.	Irrelevant to any matter in issue. Lacks identified reasoning in a manner or to an extent that would sufficiently permit scrutiny by the Court of the reasoning and opinions.
9	Are Good Industry Practices, as they relate to mine planning for the expansion of the mine pit and waste storage capacity to remain adequate for the rate of production and life of mine pursued by the mine proponent for the purposes of the project any different to the practices you identify in your answer to question 8 and, if so, in what way	Mr Turner expresses an opinion as to whether the practices of the mine proponent in question 8 are considered good industry practice. The opinion is provided in 4 short paragraphs.	Irrelevant to any matter in issue. Inconsistent with the refusal of the amendments sought by Mineralogy in January 2025. Lacks identified reasoning in a manner or to an extent that would sufficiently permit scrutiny by the Court of the reasoning and opinions.
10	Would a mine proponent in Sino Iron's and Korean Steel's position, exercising the standard of care, skill and diligence that would normally be expected of a professional and competent organisation implementing a project equivalent to the Sino Iron Project, and acting in accordance with Good Industry Practices, have pursued: (a) the 2016 MCPs between 9 December 2016 to 25 October 2021; (b) the 2017 MCPs between 21 December 2017 to 7 March 2023; (c) the request for additional tenure made in the letter of 29 March 2018 between 29 March 2018 to 25 October 2021; and (d) the request for additional tenure made in the letter of 29 November 2021 between 29 November 2021 and 7 March 2023?	Mr Turner expresses brief opinions as to whether he would have expected the MCPs in 2016, 2017 and 2023 to be pursued based on several key items which were based on interim and/or conceptual planning and engineering. Mr Turner repeats his reference to the pre-feasibility study level of confidence.	Irrelevant to any matter in issue. Inconsistent with the refusal of the amendments sought by Mineralogy in January 2025. Lacks identified reasoning in a manner or to an extent that would sufficiently permit scrutiny by the Court of the reasoning and opinions.
11	How can the amount of remaining magnetite ore capable of being extracted from within the current mine pit at the Sino Iron Project be estimated?	Allowed.	Allowed.
12	What information would a careful and competent mine proponent in the position of Mineralogy require to: (a) verify the mine pit constraints referred to in Mr Goodwin's witness statement filed 20 October 2021 (and tendered on 21 March 2022 in the form marked “H1”) and his supplementary witness statement filed 28 January 2022 (and tendered on 22 March 2022 in the form marked “H2”), including the documents referred to therein? (b) assess the proposed mine pit provided for in the 2023 MCPs? (c) assess whether the proposed extended and new WRDs do not sterilise, physically or economically, the exploitation of mineral resource remaining after the mining and processing of the combined three billion tonnes of magnetite ore from tenements M08/123, M08/124 and M08/125?	Allowed.	Allowed.
13	How would the: (a) mine pit extension proposed in the 2023 MCPs; (b) Northern TSF proposed in the 2023 MCPs; and/or (c) new and expanded WRDs proposed in the 2023 MCPs, impact upon: (d) the mining and processing of 3 billion tonnes of magnetite ore by Sino Iron and Korean Steel and Balmoral Iron; (e) the mining and processing of additional magnetite ore remaining within the Mine Area after Sino Iron's, Korean Steel's and Balmoral Iron's extraction of 3 billion tonnes of magnetite ore?	Allowed.	Allowed.
14	Using the 2022 Resource Block Model and applying a cutoff grade of 17% MagFe content, how much magnetite ore (expressed in dry tonnes) is estimated to be within mining leases M08/123, M08/124 and M08/125?	It is unnecessary to summarise the opinions expressed by Mr Turner in respect of the remaining questions.	Irrelevant to any matter in issue. Inconsistent with the refusal of the amendments sought by Mineralogy in April 2025 in that the amendments are predicated on the defences and counterclaims concerning the 17% MagFe issue. See the reasons at *Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 10]* [2025] WASC 130.
15	What is the level(s) of confidence in respect of the amount you identify in your answer to question 14?	See question 14 above.
16	Where is the magnetite ore you identify in your answer to question 14, broken down according to the applicable levels of confidence and any other classification(s) you consider to be appropriate, situated within M08/123, M08/124 and M08/125?	See question 14 above.
17	Using the 2022 Resource Block Model and applying a cutoff grade of 17% MagFe content, how much magnetite ore (expressed in dry tonnes), broken down according to the applicable levels of confidence and any other classification(s) you consider to be appropriate, is estimated to be contained within the Vulcan 3 Bt Pit?	Irrelevant to any matter in issue. Inconsistent with the refusal of the amendments sought by Mineralogy in April 2025 in that the amendments are predicated on the defences and counterclaims concerning the 17% MagFe issue. See the reasons at *Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 10]* [2025] WASC 130.
18	Based on your answer to question 17, how much magnetite ore within the Vulcan 3 Bt Pit is not “ore” according to the definition of that term in CPM's Life of Mine Plan 2019?	See question 17 above.
19	Based on your answer to question 17, how much magnetite ore within the Vulcan 3 Bt Pit is not “ore” according to the definition of that term in CPM's Life of Mine Plan 2019?	See question 17 above.
20	If your answer to question 19 is greater than 400m (RL 600m), and using the 2022 Resource Block Model, how much: (a) magnetite ore with a cutoff grade of 17% MagFe content; and (b) “ore” within the definition of that term in CPM's Life of Mine Plan 2019, is at a depth greater than 400m (RL 600m)?	Irrelevant to any matter in issue. Inconsistent with the refusal of the amendments sought by Mineralogy in April 2025 in that the amendments are predicated on the defences and counterclaims concerning the 17% MagFe issue. See the reasons at *Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 10]* [2025] WASC 130.
21	Using the 2022 Resource Block Model and a cutoff grade of 17% MagFe content, how much magnetite ore: (a) within mining leases M08/123, M08/124 and M08/125; and (b) within the Vulcan 3 Bt Pit, is located: (c) within a depth of 350m (RL 650m)? and (d) at a depth greater than 350m (RL 650m)?	Irrelevant to any matter in issue. Inconsistent with the refusal of the amendments sought by Mineralogy in April 2025 in that the amendments are predicated on the defences and counterclaims concerning the 17% MagFe issue. See the reasons at *Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 10]* [2025] WASC 130.
22	Using the 2022 Resource Block Model, the .dxf file for the as-built current mine pit in August 2023 and a cutoff grade of 17% MagFe content, by August 2023 how much magnetite ore had been removed from the current mine pit?	Irrelevant to any matter in issue. Inconsistent with the refusal of the amendments sought by Mineralogy in April 2025 in that the amendments are predicated on the defences and counterclaims concerning the 17% MagFe issue. See the reasons at *Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 10]* [2025] WASC 130.
23	Using the 2022 Resource Block Model, the .dxf file for the as-built current mine pit in December 2024 and a cutoff grade of 17% MagFe content, by December 2024 how much magnetite ore had been removed from the current mine pit?	Irrelevant to any matter in issue. Inconsistent with the refusal of the amendments sought by Mineralogy in April 2025 in that the amendments are predicated on the defences and counterclaims concerning the 17% MagFe issue. See the reasons at *Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 10]* [2025] WASC 130.