Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 11] - [2022] WASC 473

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   SINO IRON PTY LTD -v- MINERALOGY PTY LTD [No 11] [2022] WASC 473
CORAM:   KENNETH MARTIN J
HEARD:   31 MARCH 2022
DELIVERED          :   31 MARCH 2022
PUBLISHED           :   7 MARCH 2023
FILE NO/S:   CIV 1915 of 2019
BETWEEN:   SINO IRON PTY LTD
First Plaintiff

KOREAN STEEL PTY LTD
Second Plaintiff

CITIC LIMITED
Third Plaintiff

AND

MINERALOGY PTY LTD
First Defendant

CLIVE FREDERICK PALMER
Second Defendant

STATE OF WESTERN AUSTRALIA
Third Defendant

FILE NO/S: CIV 2326 of 2021
BETWEEN: SINO IRON PTY LTD
First Plaintiff

KOREAN STEEL PTY LTD
Second Plaintiff

CITIC LIMITED
Third Plaintiff

AND

MINERALOGY PTY LTD
First Defendant

CLIVE FREDERICK PALMER
Second Defendant

THE STATE OF WESTERN AUSTRALIA
Third Defendant

Catchwords:

Practice and procedure - Trial - Application by self-represented second defendant to bring defendant's summary judgment application out of time on legal point - Case management considerations - Application refused

Legislation:

Competition and Consumer Act 2010 (Cth)
Foreign Acquisitions and Takeovers Act 1975 (Cth)
Iron Ore Processing (Mineralogy Pty Ltd) Agreement Act 2002 (WA)

Result:

Application refused

Category: B

Representation:

CIV 1915 of 2019

Counsel:

First Plaintiff	:	J Karkar KC, S Parmenter KC, S Free SC, J Kirkwood, T Maxwell & K Dovey
Second Plaintiff	:	J Karkar KC, S Parmenter KC, S Free SC, J Kirkwood, T Maxwell & K Dovey
Third Plaintiff	:	J Karkar KC, S Parmenter KC, S Free SC, J Kirkwood, T Maxwell & K Dovey
First Defendant	:	P Dunning KC, M Karam, K Byrne, H Cooper & D Fawcett
Second Defendant	:	In person (by video link)
Third Defendant	:	A Sefton SC

Solicitors:

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

CIV 2326 of 2021

Counsel:

First Plaintiff	:	J Karkar KC, S Parmenter KC, S Free SC, J Kirkwood, T Maxwell & K Dovey
Second Plaintiff	:	J Karkar KC, S Parmenter KC, S Free SC, J Kirkwood, T Maxwell & K Dovey
Third Plaintiff	:	J Karkar KC, S Parmenter KC, S Free SC, J Kirkwood, T Maxwell & K Dovey
First Defendant	:	P Dunning KC, M Karam, K Byrne, H Cooper & D Fawcett
Second Defendant	:	In person (by video link)
Third Defendant	:	A Sefton SC

Solicitors:

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

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

Nil

KENNETH MARTIN J:

(This decision was delivered extemporaneously on 31 March 2022 and has been edited from the transcript.)

I am dealing with Mr Clive Palmer's amended chamber summons of 30 March 2022 (folio 451).
I had listed Mr Palmer's original chamber summons of 16 March 2022 (folio 434), for a return on 21 March 2022. That was at the commencement of week five of the present trial (Primary Trial), at about day 15.
At the time, Mr Palmer's chamber summons was seeking a stay of the Primary Trial on his application.
Mr Palmer is the second defendant and is representing himself. The first defendant, Mineralogy Pty Ltd (Mineralogy), is legally represented.
Mr Palmer's expressed concern is as to the contented engagement of the Foreign Acquisitions and Takeovers Act 1975 (Cth) (FATA) impacting the final injunctive relief that is, ultimately, sought in these proceedings by the three plaintiffs (CITIC plaintiffs).
There are two key and related aspects to the final injunctive relief that is sought by the CITIC plaintiffs.
First, is in relation to the compulsive orders sought from the Court, that would require Mineralogy to become a Co-Proponent - with Sino Iron Pty Ltd (Sino Iron) or Korean Steel Pty Ltd (Korean Steel), as is the case for each of them – to submit to the relevant State Minister (Minister) for an approval under the regime of the Iron Ore Processing (Mineralogy Pty Ltd) Agreement (State Agreement) found as within sch 1 and sch 2 to the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Act 2002 (WA), a Mine Continuation Proposal (MCP) document that each of Sino Iron and Korean Steel have had prepared (as a draft in 2017) and seek that Mineralogy, under the relevant terms of the State Agreement, adopt the MCPs itself and then submit them both to the Minister in order to be so approved, as an 'approved proposal' under the regime of the State Agreement.
In present circumstances there is no scope for the first and second CITIC plaintiffs, that is for Sino Iron and Korean Steel, to themselves directly submit those MCPs to the Minister for consideration. By the terms of the State Agreement, a submission of such a proposal either has to be made by Mineralogy as a Proponent, or at least with Mineralogy as a proposal Co-Proponent - along with Sino Iron and Korean Steel.
So, the first category of injunctive relief sought is in respect of the progression of what are draft MCP documents - being the draft MCPs of December 2017, in respect of Sino Iron and Korean Steel - that would compel Mineralogy's submission of those documents to the Minister seeking their assessment for approval under the State Agreement.
That first tier final mandatory injunctive MCP relief is sought under circumstances in which Mineralogy, to date, has declined to submit or to agree to a joint submission to the Minister of such draft MCP proposals - being the draft MCPs referred to, of December 2017 for each of Sino Iron and Korean Steel.
Consequently, there presents for these MCPs now, in effect, a stalemate in terms of them making any progress to reach the Minister for consideration.
The 2017 MCPs cannot proceed further in accord with the terms of the State Agreement, to reach to the relevant Minister, for that Minister's approval to be given to what they would propose as their plans for the next stages of development of the Sino Iron Project at Cape Preston in the Pilbara of Western Australia, until these MCPs are, effectively, submitted to the Minister by Mineralogy as at least a Co-Proponent in final form - for the required approval of the Minister.
The second and closely related aspect of the final mandatory injunctive relief sought by the CITIC plaintiffs, is to compel Mineralogy to grant to them some extra tenure areas over nearby mining tenements it holds as an underlying component of the MCPs - in terms of advancing and continuing the Sino Iron Project into the future.
There are, within the 2017 draft MCPs as they were given to Mineralogy, certain areas designated for use in the Project, which are areas beyond the currently held Site Lease Areas (SLAs), or the access areas - as the current subjects of the grants under the Sino Iron and Korean Steel Mining Right and Site Lease Agreements (MRSLAs) - which MRSLAs have been much agreed, amended and perfected in 2008. The MRSLAs by their terms, identify SLAs and access areas granted to Sino Iron and Korean Steel.
Relevantly, there is extra land area at the east of the current areas out of Mineralogy's general purpose lease G08/74 that is sought for a further expanded northern tailings storage facility (TSF).
There are also some further areas sought for either TSF use, or for waste rock dump (WRD) use south of the existing waste areas - on the eastern side of the north‑south infrastructure corridor, in Mineralogy's general purpose lease G08/63.
The CITIC plaintiffs are seeking these extra areas at the south for storage of waste by-products resulting from the processing of the mined magnetite ore and beyond the areas held under the Sino Iron and Korean Steel MRSLAs, that Mineralogy had already granted to Sino Iron and Korean Steel, in 2006 or 2008 respectively.
There are also some further land (mining tenement) areas sought at the north, in the Cape Preston Port region, for laying down bigger volumes of the stockpiles of dry magnetite concentrate - prior to it undergoing export by a trans‑shipment process, ultimately, on to oceangoing vessels, to locations in China for steelmakers.
It is in respect of the requests made to Mineralogy on behalf of Sino Iron and Korean Steel to obtain those extra areas of tenure for use in the Sino Iron Project - that are not currently the subject of grants under the MRSLAs - that a question is raised by both Mineralogy and Mr Palmer as to a potential engagement with the FATA. It is argued that there should have been an earlier notification to the Commonwealth Treasurer (Treasurer) as to the proposed tenure acquisition by way of notifying the claimed entitlement to further Australian land from Mineralogy for the existing Sino Iron Project. There arises, it is said, an asserted need for the CITIC plaintiffs to have secured an 'approval' from the Treasurer before bringing this action (more correctly described as a 'no action' notification - since 'approval' as such is not given).
There are difficulties, however, with dealing with the FATA issue on a summary basis, as Mr Palmer's application now seeks during the Primary Trial.
Not the least of the difficulties is that there is no case authority yet cited to me on the precise point, in terms of a potential engagement of the FATA towards mining tenement interest circumstances akin to the present.
A further difficulty is that this potential FATA engagement line of defence, if correct, would mean that the relief sought by the CITIC plaintiffs in this Primary Trial for final injunctive relief, MCP and additional tenure acquisition, is problematic. The defence issue has been now live for some time.
The same defence seems to have been articulated under lawyer correspondence going back to 2019, as between the parties - when the matter was, then, in its early stages in the Federal Court of Australia.
A potential summary determination of this FATA defence point became a subject of my direction 2 under the trial management directions I issued on 23 June 2021 (folio 195) - so that it could be cleared, prior to the parties getting on with their preparation for the Primary Trial on a summary basis.
As is explained in Mr David John's affidavit of 20 March 2022 (folio 436), there was a chamber summons filed seeking the summary determination upon the issue.
However, as has been canvassed this morning in dialogue with senior counsel for the CITIC plaintiffs and with Mr Palmer, a deliberate decision looks to have been made by the first and second defendants or their advisers, notwithstanding filing that application to determine it summarily, for it not to be determined.
The FATA point is still live on the defence pleadings in this action, and it is a subject of part of the defence pleas by the first defendant, Mineralogy, as well as by Mr Palmer personally.
The FATA point is, also, a subject of Mineralogy's extensive written opening outline of trial submissions filed under my directions prior to commencement of the Primary Trial.
Arguments on this point are found in Mineralogy's written outline of opening submissions of 17 February 2022 (folio 389) - see pages 41 to 43, at pars 195 to 213.
The FATA defence point presents as largely one of statutory interpretation. No case authority in support of it is yet referred to in either Mineralogy's outline of opening submissions or, indeed, in the 34 pages of written submissions filed yesterday on Mr Palmer's behalf.
I do not for a moment discount the ultimate importance of the FATA point being finally resolved in the Primary Trial and the need for it to be dealt with.
But the question for today is, ought that FATA defence issue be dealt with summarily as Mr Palmer seeks by his application? That is, carved away from and out of the Primary Trial to be evaluated on basis that the FATA point is so demonstrably overwhelming, and essentially, unanswerable by the CITIC plaintiffs that they should not be allowed to proceed in this action and the Primary Trial - in face of what is said to be the clear engagement and breach of the FATA.
The CITIC plaintiffs firmly resist that summary determination path.
During his comprehensive opening, senior counsel for the CITIC plaintiffs took me carefully to some relevant provisions of that FATA legislation. He articulated the responsive stance of the CITIC plaintiffs as namely, that before any final relief tenure orders are obtained and moved for from the Court - in terms of the injunctive orders sought against Mineralogy concerning a compulsory obtaining by Sino Iron and Korean Steel of extra tenure at the south and at Cape Preston, that the court would be asked to preface its grant of any compulsive orders on a conditional basis - requiring the CITIC plaintiffs to obtain the consent (more correctly a 'no objection' notification) from the Treasurer - in full accord then with the acquisition and interest provisions of the FATA.
There also presents a clash of perspectives, arising as between Mineralogy's position as first defendant (which does not advocate, but does not oppose a summary determination) and that of Mr Palmer as second defendant who does. Mr Palmer's position appears to be that merely to articulate a claim to obtain extra tenure in these identified areas from Mineralogy – within 'Area A', as the subject of the State Agreement – is an infringement of the FATA, so that notification must, first, be given to the Treasurer, essentially, before any extra tenure issues in the Primary Trial can even be discussed.
As mentioned, there is so far, no case authority put to me to support the FATA interpretation position, as advocated by Mr Palmer.
Significantly to my determination, apart from the fact that the Primary Trial is now at the stage of week six, day 22, and that I will need to in any event decide what is an important point as a matter of finality relatively soon, in the context of the closing of the Primary Trial - is the fact that the very point could have been earlier raised to be dealt with earlier - in accord with directions to that end that I issued back on 23 June 2021. But it was not. And there is no real explanation provided for why not.
Mr Palmer's chamber summons seeking a stay of the Primary Trial on 16 March 2022, effectively, arrived something like a 'bolt out of the blue'. I programmed it for direction. But yesterday that application changed character to move away from being a stay application - to become as second defendant's summary judgment application on this FATA engagement issue.
Again, there is no real explanation provided to support why the FATA point should be articulated and dealt with in a summary fashion, rather than finally, within the context of this currently running Primary Trial. That final resolution approach, effectively, is the way the FATA issue has been approached now by Mineralogy - by its outlines of opening submissions and by the address of senior counsel as he developed the main defence points on behalf of the first defendant in his opening submissions - of which there are a number.
Perhaps most significantly for me, however, is that I assess the underlying potential argument to be not only serious and important but, also, lacking in the support presently of any cited case authority to date, but also raising complex legal arguments, potentially.
Further to that, the FATA engagement point raises arguments tied back to the basis of a legal obligation, if there is such an obligation, falling upon Mineralogy in terms of its required granting of the extra tenure areas requested.
At the moment, there are four potential causes of actions raised by the CITIC plaintiffs’ consolidated further re-amended statement of claim (folio 331), suggested alternatively as bases on which such a tenure provision obligation could arise. These are; under contract, by two distinct genres of estoppel (as suggested stand alone causes of action, both with a certain novelty to them) and by a cause of action expressed as based upon the alleged statutory unconscionability of Mineralogy, in violation of the Australian Consumer Law, as contained in sch 2 of the Competition and Consumer Act 2010 (Cth). Mineralogy's suggested unconscionable conduct is by not advancing the 2017 MCPs and by it not providing the additional tenure to Sino Iron and Korean Steel areas upon which these MCPs are (in part) premised as plans for the future of the Sino Iron Project.
Once a tenure provision obligation is ascertained, if it can be, then related legal arguments can be better understood about a potential engagement of the FATA regime or otherwise on a final basis.
But primary determinations towards finding a foundation at cause(s) of action for a tenure provision obligation – if, indeed, there is such an obligation – have not, as yet, been fully canvassed, let alone potential causes of action determined. These need to be unlocked, but not on an arguability basis. They must be resolved in my view on a basis of finality - in order for the further FATA engagement issue then, to be reliably determined finally, as well.
That is the process upon which I am currently embarked as at week six, day 22 of this Primary Trial.
Finality is a fundamental pre-requisite to a reliable determination of the FATA point.
Consequently, as a matter of case management, where the FATA defence point presents as a serious one of statutory interpretation and with no real case authority of a curial kind yet cited on the point, it is both unwise and unsafe for it to be summarily determined, given where things stand otherwise at day 22.
The trial framework will enable surrounding facts, if necessary, and surrounding legal determinations around the legal foundations for any obligation of Mineralogy to grant the extra tenure, to be safely determined - in order for other satellite issues, such as over the FATA's engagement or otherwise, to then be better considered.
Weighing all that up, I am not prepared to grant leave which is required for Mr Palmer's amended chambers summons to be determined. A defendant's summary judgment application at this point in the Primary Trial’s running so far would be contrary to principles of sensible case management and, indeed, contrary to principle generally.
On that basis, leave is refused and the application of Mr Palmer must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VC
Associate to the Honourable Justice K Martin
7 MARCH 2023