Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 12] - [2025] WASC 154

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   SINO IRON PTY LTD -v- MINERALOGY PTY LTD [No 12] [2025] WASC 154
CORAM:   LUNDBERG J
HEARD:   29 & 30 APRIL 2025
DELIVERED          :   5 MAY 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 enforcement of discovery orders made by the Court pursuant to O 26 r 15 of the Rules of the Supreme Court 1971 (WA) - Alternative application for orders for further discovery pursuant to O 26 r 7 of the Rules of the Supreme Court 1971 (WA) - Adequacy of discovery of the inboxes of two executives of the CITIC Parties - Examination of the basis of the Court's earlier discovery orders - Whether plaintiffs should be permitted to agitate issue as to adequacy of the previous discovery given in the 2017 MCP Proceeding - Consideration of relief to be granted - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 26 r 6, O 26 r 7, O 26 r 15

Result:

Application granted and further discovery orders made

Category: B

Representation:

Counsel:

First Plaintiff	:	L A Warnick SC, J H Kirkwood SC & R O'Brien
Second Plaintiff	:	L A Warnick SC, J H Kirkwood SC & R O'Brien
Third Plaintiff	:	L A Warnick SC, J H Kirkwood SC & R O'Brien
First Defendant	:	P Dunning KC, M Karam, K S Byrne, H Cooper, D Fawcett, L Tassell & M Stone
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):

Athens v Randwick City Council [2005] NSWCA 317; (2005) 64 NSWLR 58
Collins v Marinovich [2023] QSC 175
Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [No 2] [2023] WASC 108
Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2018] WASCA 185
Hancock v Rinehart [2019] NSWSC 1451
Quade v Commonwealth Bank of Australia (1991) 27 FCR 569
Re Group Pty Ltd v Kazal [No 3] [2017] FCA 754
Russell v RCR Tomlinson Ltd [No 2] [2016] WASC 240
Sertari Pty Ltd v Quakers Hill SPV Pty Ltd [2014] NSWCA 340
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 13] [2022] WASC 475
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2024] WASC 413
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 5] [2025] WASC 35
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 6] [2025] WASC 77
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 8] [2022] WASC 46
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 8] [2025] WASC 105
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 9] [2025] WASC 126
Wright Prospecting Pty Limited v Hancock Prospecting Pty Limited [No 13] [2017] WASC 286

Table of Contents

A. Introduction

B. Background

(1) Prior order of the Court made on 2 April 2025

(2) Reasons of the Court published on 4 April 2025

(3) Materials relied upon by Mineralogy on the present application

(4) Materials relied upon by the CITIC Parties on the present application

C. The bases for the present application

(1) Enforcement of the Court's orders

(2) Further and better discovery

D. Consideration

E. Disposition

(1) Legal effect of the orders made on 2 April 2025

(2) The orders which should now be made

F. Conclusion and orders

LUNDBERG J:

A. Introduction

These reasons concern the application filed on 24 April 2025[1] by the first defendant (Mineralogy) for enforcement of an earlier discovery order made by the Court on 2 April 2025.
[1] Folio 238.
Mineralogy seeks orders that the plaintiffs, the CITIC Parties, give further discovery of documents in the inboxes of two of their executives in respect of the period of time prior to 30 June 2021, said to be relevant to the matters in issue. Specifically, orders are sought that the CITIC Parties give inspection of documents created before 30 June 2021 that are the subject of par 1 of the orders made on 2 April 2025, and that the CITIC Parties serve an affidavit of discovery in respect of these outstanding documents. By its chamber summons, Mineralogy seeks the orders pursuant to O 26 r 6(1), r 7(3) and/or r 15 of the Rules of the Supreme Court 1971 (WA) (RSC), and the inherent jurisdiction of the Court.
The application is opposed by the CITIC Parties.
Given the nature of the application, it has been necessary for the papers to be filed in a shortened timeframe and for the Court to give prompt consideration to the issues. I heard the application during the course of the trial of the action, on 29 and 30 April 2025, being the second and third day of the listed trial.
For the reasons which follow, I have concluded that the application should be granted.

B. Background

(1) Prior order of the Court made on 2 April 2025

The relevant order on which Mineralogy focuses is the order made by the Court on 2 April 2025,[2] which was made following a contested discovery application brought by Mineralogy, via its chamber summons dated 20 March 2025.[3]
[2] Folio 185.
[3] Folio 150.
Relevantly, I ordered as follows, with the deadline for compliance being a date ultimately agreed between the parties:
By 4:00pm on Friday, 11 April 2025, the plaintiffs shall give further discovery on affidavit of email communications located within the email inboxes of:
(a) Mr Chen Zeng; and
(b) Ms Helen Dillon,
that are responsive to the plaintiffs' discovery categories which are the subject of the orders made by the Court on 2 October 2024.
This discovery order makes reference to earlier discovery orders, being the orders made by the Court on 2 October 2024.[4] Those earlier orders set out the categories of discovery which were required to be given by the CITIC Parties and by Mineralogy. I made those orders following the contested discovery hearing on 1 October 2024: Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2].[5]

(2) Reasons of the Court published on 4 April 2025

[4] Folio 70.

[5] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2024] WASC 413.

On 4 April 2025, I published reasons to explain why I made the order on 2 April 2025 and granted the application which had been filed by Mineralogy seeking further discovery of the inboxes of the two executives employed by the CITIC Parties: Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 8].[6] Within those reasons, I explained that:
1.The discovery sought by Mineralogy concerned the email communications located within the email inboxes of two senior executives of the plaintiffs, being Mr Chen Zeng and Ms Helen Dillon. The discovery order sought was expressly subject to the emails being responsive to the discovery categories which were ordered to be given by the plaintiffs, pursuant to the orders of the Court made on 2 October 2024 (at [2]).
2.Mineralogy had submitted that the failure to include the email inboxes of these executives demonstrated a material gap in the plaintiffs' discovery, the email communications being said to be directly relevant and necessary for the fair disposition of the proceeding, and there being no suggestion the provision of those documents would be oppressive or burdensome, or somehow disproportionate to the litigation. The CITIC Parties opposed the orders and maintained the documents were not directly relevant to the proceedings (at [4] and [5]).
3.I found there had been a conceptual error in the discovery process, there being no basis for the plaintiffs' asserted demarcation line between operational constraints and related technical matters (which the plaintiffs had said was the focus of the action), and the higher level management issues (which the plaintiffs had said were outside the scope of the proceedings) (at [26] - [31]).
4.Having found a conceptual error, I addressed Mineralogy's application by then considering whether it was reasonably likely there was documentary material within the email inboxes of Mr Zeng and Ms Dillon which fell within one of the discovery categories ordered by the Court (at [33]). I was satisfied that the inboxes of these two executive were reasonably likely to contain documentary material which fell within a discovery category, and identified Categories AB, EA, EI and G as particular categories (at [37] – [40]).
5.I was satisfied that there was utility in the orders which were sought by Mineralogy, to require that a review be initiated of these inboxes, against the existing discovery categories, not only those categories I had identified (at [41]).
[6] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 8] [2025] WASC 105.
I then concluded as follows, at [42]:
[42]For the foregoing reasons, I have concluded that the discovery orders sought by the first defendant should be granted. Specifically, I am satisfied that the first defendant has demonstrated the following:
(a) first, that a conceptual error exists in the approach adopted by the plaintiffs to the discharge of their discovery obligations and to their compliance with the discovery orders made on 2 October 2024;
(b) second, that it is reasonably likely there is documentary material within the email inboxes of Mr Zeng and Ms Dillon which falls within one of the discovery categories ordered by the Court, and there is a sufficient likelihood therefore that the making of the discovery orders will produce a forensic benefit of enough significance to sustain the order being made; and
(c) third, that the steps required to be undertaken by the plaintiffs and their legal team to collate and discover this documentary material is proportionate to the potential probative value of those documents and not overly burdensome.

(3) Materials relied upon by Mineralogy on the present application

The present application has been brought by chamber summons dated 24 April 2025 and is supported by an affidavit of Ms Tracy Robinson sworn 26 April 2025,[7] although earlier affidavit evidence and other material filed with the Court is relied upon as well.
[7] Folio 241.
I was also taken by senior counsel for Mineralogy to two confidential documents.[8] I will describe the documents in simple terms, without exploring their contents, given their confidential nature.
[8] CPM.684.008.2323 and CPM.684.008.2324.
The first document is an internal email exchange within the CITIC group between Ms Dillon and Mr Sekar sent on 24 August 2021, with the subject line being 'MCP Technical Info Pack Final Draft'. The email is marked as being 'Confidential & Privileged – Prepared for the purpose of litigation' and in terms indicates that the information was to be forwarded to the plaintiffs' lawyers.
The second document is an attachment to the email, being a PowerPoint presentation or slide pack headed 'Technical information to Support Mine Continuation Proposal' which is dated August 2021 and bears the logo of CITIC Pacific Mining. The slide pack is marked as being 'Confidential & Privileged – Prepared for the purposes of litigation'.
These two documents were disclosed by the CITIC Parties to Mineralogy as part of the recent tranche of documents referred to as Tranche D. The documents are said by the CITIC Parties to be subject to claims for legal professional privilege and were provided to Mineralogy by the CITIC Parties' solicitors in circumstances described by the plaintiffs as 'inadvertent'. The position expressed by senior counsel for the CITIC Parties on 29 April 2025 was that the documents ought be returned by Mineralogy and its solicitors, in these circumstances.
Mineralogy did not accept this position, and explained through senior counsel at the hearing on 29 April 2025 that the circumstance of 'inadvertence' or 'mistake' was disputed.
As events developed during the course of the hearing, by 30 April 2025, it became unnecessary for the Court to resolve whether the disclosure of these documents was inadvertent, or whether they should be returned. This is because the parties, sensibly, agreed a protocol as to the use to which the two documents could be put for the purposes of this application and hereafter, which I noted at the commencement of the hearing on 30 April. I will, only for convenience, refer to the documents as the inadvertently disclosed documents in these reasons.

(4) Materials relied upon by the CITIC Parties on the present application

The CITIC Parties rely on the affidavit sworn by Mr David John on 28 April 2025.[9] I was also taken by senior counsel to a number of documents in the trial bundle[10] and to portions of the witness statement of Mr Goodwin filed in the earlier proceedings before Kenneth Martin J, being the 2017 MCP Proceeding.
[9] Folio 246.
[10] Exhibits 381, 633, 655 and 735.
My attention has also been drawn to the two discovery affidavits affirmed by Ms Fay Ng on 3 December 2024 and 23 April 2024, which identify the documents discovered by the plaintiffs in the action.
As will appear from the above, the materials for the application have been filed in a compressed timeframe, with Mineralogy's papers arriving on the last business day before the listed trial and over the long weekend, and with the CITIC Parties' materials in opposition being filed on the evening of 28 April 2025, the first day of the trial.[11]
[11] Mineralogy submissions dated 26 April 2025 (DS) and CITIC Parties' submissions dated 28 April 2025 (PS).

C. The bases for the present application

The application is effectively pressed by Mineralogy on two bases which I will briefly describe.

(1) Enforcement of the Court's orders

First, it is submitted by Mineralogy that the order made by the Court on 2 April 2025 is clear in terms and speaks for itself, and there has been non-compliance with the order by the plaintiffs. Mineralogy thus presses for orders under O 26 r 15 RSC, which vests the Court with express power to address non-compliance with its discovery orders. Rule 15 relevantly provides that:
(1) If any party who is required by any of the rules of this Order or by any order made thereunder, to give discovery of documents or to produce any documents for the purpose of inspection or any other purpose fails to comply with any provisions of that rule or with that order, as the case may be, then without prejudice, in the case of a failure to comply with any such provision, to rules 7 and 9(1) the Court may make such order as it thinks just including in particular, an order that the action be dismissed or as the case may be, an order that the defence be struck out and judgment entered accordingly.
(2) If any party fails to comply with an order for discovery or production of documents then, without prejudice to subrule (1) he shall be liable to attachment.
The foregoing rule empowers the Court, in an appropriate case, to make orders of an extremely serious nature, including to order that an action be dismissed, or to strike out a defence and then enter judgment. No such orders are sought by Mineralogy on this application, and quite properly in my view.
The more draconian forms of relief which are identified in O 26 r 15(1) RSC may arise for consideration where a party has deliberately and/or repeatedly failed to comply with the discovery orders of this Court. For example, an order that the action to be wholly dismissed. The circumstances in which such orders ought be made would be unusual and require careful examination. Of course, rule 15(1) also empowers the Court to 'make such order as it thinks just', with the rule being expressed to be 'without prejudice...to rules 7 and 9(1)'.
It is therefore open to pursue relief of a less severe nature through the power in O 26 r 15 RSC.
In this vein, Mineralogy seeks the discovery order described above, that the CITIC Parties give inspection of documents created before 30 June 2021 that are the subject of the discovery categories previously ordered. That is, Mineralogy seeks proper compliance with the orders of the Court and invites the Court to preclude the plaintiffs from re-litigating the issue already determined by the Court.[12]
[12] DS [5] and [6].
Mineralogy submits that, based on how the application was argued and determined by the orders of the Court made on 2 April 2025, it expected to receive responsive emails from the executives' inboxes pre-dating 30 June 2021.[13] Ultimately, I understood senior counsel for Mineralogy to press this aspect of the application on the primary basis that the order of the Court, on its face, was clear and certain, and no resort to other material was necessary to understand the order.
[13] DS [4].
In the alternative, senior counsel for Mineralogy submits that resort to the material before the Court on the previous application, even if it be legitimate to examine that material, nonetheless demonstrates that the subject matter of the adequacy of the 2017 MCP Discovery, in terms of the executives' inboxes, was a live issue and thus the order, properly understood, obliged the plaintiffs to give discovery of material for that earlier period of time.

(2) Further and better discovery

Second, and in the alternative, Mineralogy seeks the order by way of further and better discovery pursuant to O 26 r 6(1) or r 7 RSC, it being said there is a likelihood that further documents of relevance to the proceedings exist and should be discovered.

D. Consideration

Discovery disputes in large-scale litigation are unfortunately not uncommon. Such disputes must always be approached by the Court with a clear-eyed focus on the goal and objects in O 1 r 4A and r 4B RSC, concerning the avoidance of delays and addressing matters of cost, efficiency and proportionality, which assume pervasive importance in the application of this Court's rules.
The goal and objects there stated nonetheless leave room for the operation of the principle that the giving of proper discovery is a vital procedural step and the Court will not shirk from insisting on a party's duty to fully comply with an order for discovery: Quade v Commonwealth Bank of Australia.[14]
[14] Quade v Commonwealth Bank of Australia (1991) 27 FCR 569, 570, 581, 582.
In the course of this action, disputes as to discovery issues have assumed some prominence, leading to a number of contested applications. Speaking in general terms, Mineralogy has maintained that the discovery provided by the CITIC Parties, despite the large volume of the documents which have evidently been produced for inspection, has been inadequate or suffered from conceptual errors. These concerns have not been misplaced, at least in several respects,[15] although I rejected the further discovery orders sought by Mineralogy on one occasion.[16]
[15] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 5] [2025] WASC 35 (as to the redactions applied by the CITIC Parties); Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 8] [2025] WASC 105 (the orders requiring the executive inboxes to be discovered); and Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 9] [2025] WASC 126 (Hill J's assessment of the privilege claims).
[16] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 6] [2025] WASC 77 (concerning the discovery of a technical model).
The frequency of the discovery applications in the present action may be explained by reference to several matters. It may be explained by the overall importance of the litigation to both sets of parties, which I have outlined in earlier interlocutory decisions.
The discovery disputation may also be explained by the circumstance of informational asymmetry in this action, an issue upon which I have previously remarked. That is, my assessment has been that Mineralogy is in a position of informational asymmetry relative to the CITIC Parties, and this circumstance rather emphasises the significance of appropriate discovery orders being made to facilitate the fair and just determination of the action.

That is, each party ought be given the opportunity to fairly present its case, and concerns that a party may be deprived of a forensic ability to do so should be seriously examined by the Court. Considerations of this nature were relevant to my assessment of the application brought by Mineralogy earlier this year to require a review of the redactions made by the CITIC Parties to a portion of their discovered documents: Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 5].[17]
[17] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 5] [2025] WASC 35 [75] and [106].
As to the application heard by the Court on 31 March 2025, which was the subject of the orders made on 2 April 2025, the application was appropriately brought given the existence of the conceptual error on the part of the CITIC Parties (which the Court found) in its approach to the non-inclusion of the email inboxes of the two executives concerned.
The foregoing matters are set out by way of context. I turn next to examine what occurred following the making of the Court's order on 2 April 2025 when further tranches of discovery were provided by the plaintiffs.
The evidence before the Court on the present application shows that of the further documents produced by the plaintiffs in response to the order made on 2 April 2025, which were less in number than the first defendant expected, none of the documents pre-dated 30 June 2021.[18]
[18] DS [4].
The plaintiffs' solicitor has deposed that he had not understood that the question of whether Mr Zeng and Mr Dillon's inboxes had been collected for the purposes of the discovery in the 2017 MCP Proceeding was in issue on the application heard on 31 March 2025. Rather, he has deposed that the focus of the application was on the documents relating to the 2023 MCPs, so far as he apprehended the application.[19] That provides the explanation for the plaintiffs' failure to file evidence, in opposition to the earlier application heard on 31 March 2025, concerning the adequacy of the 2017 MCP discovery.
[19] Affidavit of David John sworn 28 April 2025 [12].
For my own part, it did not appear to me that the adequacy of the discovery given by the plaintiffs in the 2017 MCP Proceeding was a central issue in the application heard on 31 March 2025. Certainly, that issue is not expressly addressed in the Court's reasons. The issue was addressed, but only tangentially in my view, in the parties written submissions filed for the purposes of the application.[20]
[20] Mineralogy's submissions dated 20 March 2025 [18] and [23].
That said, it must be noted that senior counsel for Mineralogy emphasised a concern about the adequacy of the prior discovery during the course of argument, which I have extracted below:[21]
DUNNING, MR: There are really two overarching propositions in relation to this application. And I will just briefly elaborate on them. First, the CITIC parties have not gone into evidence on this application. And as we have discussed in the past, the attitude has been taken that the CITIC parties, it seems, were left to make their own assessment of what was discoverable.
Now, that has a number of implications. First, there is no evidence before your Honour that Ms Dillon's inboxes were collected and retrieved in the 17 MCP proceeding. As your Honour will recollect, Mr John put on an affidavit at the last discovery dispute on information and belief about senior executive involvement in the mine pit design. But there is no equivalent to it in these proceedings.
If our learned friends had put on such evidence, your Honour, might, I think, be pretty confident that we would have put on evidence about the relative scarcity of the emails from Ms Dillon and Mr Zeng produced in the 2017 MCP proceedings. Now, the upshot of all of that is, ultimately, the matters our learned friends set out in their written submissions at paragraph 3 are therefore not ones that your Honour should be willing to accede to. And the same might be said of what our learned friends say in their written submissions in paragraph 15, in the second and third sentences.
[21] Ts 1582 – 1583 (31 March 2025).
The reference in this passage to par 3 of the plaintiffs' submissions requires some explanation. In that paragraph, the plaintiffs submitted that the email inboxes of Mr Zeng and Ms Dillon had already been collected and discovered to Mineralogy for the purposes of the 2017 MCP Proceedings, and the plaintiffs explained the breadth of the discovery categories which formed part of those earlier proceedings.
I will pause here to provide some context concerning the 2017 MCP discovery. As I explained in the reasons published on 7 November 2024, the discovery in the prior action heard before Kenneth Martin J has been incorporated into the plaintiffs' discovery in this action. Extensive discovery was given in the prior action - in excess of 98,000 unique documents. That discovery included documents created up to 30 June 2021, being the last date on which documents were collected for that action.[22] The discovery from the earlier action was designated as discovery Category A in the current action.
[22] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2024] WASC 413 [44] – [52].
In the course of those earlier reasons published on 7 November 2024, which explained why I ordered the discovery categories in the action, I accepted as a relevant consideration the need to avoid having the legal team for the CITIC Parties revisit the documents collected for the 2017 MCP Proceeding and conduct filtering over that pool of documents to identify documents potentially responsive to the disputed categories.[23] I was concerned to avoid two discovery processes being undertaking by the plaintiffs, given the plaintiffs had provided the 2017 MCP discovery to the first defendant in early 2024, as a first tranche of discovery in this current action.
[23] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2024] WASC 413 [65].
I observed in those earlier reasons that this did not mean the Court accepted the plaintiffs' discovery process established an 'unshakeable set of boundaries'.[24] Indeed, on the present application the plaintiffs expressly accept (and properly so) that there is no blanket prohibition on Mineralogy seeking further and better discovery of documents that overlap with categories in the 2017 MCP Proceeding.[25]
[24] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2024] WASC 413 [51].
[25] PS [31].
Returning to the point identified at [40] above, it is at least apparent from the submissions made by the first defendant in pressing the application on 31 March 2025, that it did not accept the adequacy of the earlier discovery. Further, had evidence been filed by the plaintiffs on this issue, senior counsel for Mineralogy made it plain that Mineralogy would have sought to adduce evidence to the contrary.
Be that as it may, the reasons published by the Court on 4 April 2025 do not reveal or indicate that, in the course of analysing the issues, the adequacy of the earlier discovery assumed any particular prominence. This may be contrasted, for example, with the reasons given on the discovery redaction application on 7 February 2025 in which I expressly noted at [115] that:[26]
I did not hear argument, and received no evidentiary material, which would justify an order requiring a reconsideration of the redactions applied to the original discovery emanating from the 2017 MCP Proceeding.
[26] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 5] [2025] WASC 35 [115].
Given the absence of evidence on the issue in the earlier application, further evidence has now been filed in this application, from Mr John, as to the process undertaken in collating the documents which formed the discovery in the 2017 MCP Proceeding.[27] That evidence is to the effect that the inboxes of Mr Zeng and Ms Dillon were collected and incorporated into the prior discovery, up to 28 April 2020.[28] The process included an exercise by which the discovery was again assessed, and topped up, in July and August 2020, and then again in September 2021, although these further processes did not include collections from the inboxes of Mr Zeng and Ms Dillon.
[27] Affidavit of David John sworn 28 April 2025 [12] – [16].
[28] Affidavit of David John sworn 28 April 2025 [15(e)].
The evidence presented by the plaintiffs on this application exposes the possible gap in the documents discovered in the 2017 MCP Proceeding, with respect to the inboxes of these two executives, for the period from 28 April 2020 to 30 June 2021, which is a 14 month period.
The evidence filed on this application through Mr John demonstrates that in March and April 2025, the plaintiffs undertook a further collection of material from the inboxes of these executives, for the purposes of giving discovery.
This was done, Mr John deposes, as a consequence of the orders made by the Court on 2 April 2025 and in anticipation of the possibility of those orders being made.[29] The collection was undertaken from 28 April 2020, given the date boundaries of the discovery collated for the 2017 MCP Proceeding, as explained above.[30]
[29] Affidavit of David John sworn 28 April 2025 [17].
[30] Affidavit of David John sworn 28 April 2025 [17(b)].
However, from the documents which were collected, the plaintiffs filtered out any documents created between 28 April 2020 and 30 June 2021, for the reasons explained by Mr John at [18] of his affidavit.
The foregoing presents a factual picture in which the discovery produced by the plaintiffs, as presently in the possession of the first defendant, would not include any documents created between 28 April 2020 and 30 June 2021, sourced from the inboxes of Mr Zeng and Ms Dillon, which might be relevant to the issues to be tried in the current action.
To a much lesser extent, given the further chronological distance from the preparation and service of 2023 MCPs, there is a question whether relevant documents in the inboxes of these executives created prior to 28 April 2020 have been discovered, in light of the conceptual error I identified in my earlier reasons.
A question which arises on this application is whether the Court ought have regard to the additional evidence presented by the plaintiffs, in considering the relief sought by Mineralogy, or whether the order should be made without regard to this further material and the further arguments which have been presented on this application on behalf of the CITIC Parties.

E. Disposition

(1) Legal effect of the orders made on 2 April 2025

The first issue which logically falls for consideration on this application is the proper construction of the orders which were made by the Court on 2 April 2025.
On the authorities, it is apparent that interesting questions can arise as to the proper construction of the orders of a Court, including whether it is necessary for those orders to be ambiguous before resort can be had to the judgment or reasons which gave rise to them. Further, a question may arise as to whether resort can be had to the evidence presented by the parties at the hearing which led to the orders being made, in order to construe the orders.
I did not receive detailed argument on these authorities, no doubt given the urgency with which the application was brought on for hearing. The underlying issue is nonetheless one which I should address, albeit briefly.
Whether ambiguity in the orders is required before the underlying material can be examined as part of the construction exercise, such as the reasons of the court, the pleadings, and the evidence as to how the case was conducted, appears to be an issue not finally decided on the authorities. The potential uncertainty in this area was identified by Muir J in her Honour's recent decision in Collins v Marinovich.[31] The ambiguity was also expressly noted by Tobias JA in an earlier decision of the New South Wales Court of Appeal, Sertari Pty Ltd v Quakers Hill SPV Pty Ltd.[32]
[31] Collins v Marinovich [2023] QSC 175 [29] (Muir J). See also Hancock v Rinehart [2019] NSWSC 1451 [210] (Ward CJ in Eq, as her Honour then was).
[32] Sertari Pty Ltd v Quakers Hill SPV Pty Ltd [2014] NSWCA 340 [81] (Tobias JA).
Ultimately, though, the task is one of determining the legal effect of the orders which have been made, which is primarily to be undertaken by construing the objective meaning of the language used in the order. The Court of Appeal made this clear in its unanimous decision in Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd,[33] as follows:
The question which arises in the present case is the proper construction of the Costs Orders. In answering that question, the court will have regard to the reasons for decision and the other surrounding circumstances in which the Costs Orders were made, including the pleadings and the submissions which had been advanced at trial. However, the question remains one of determining the legal effect of the orders which have been made, which must begin with the terms of the orders themselves.
[33] Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2018] WASCA 185 [58] (Mazza, Mitchell and Beech JJA).
The Court of Appeal, somewhat differently constituted, in a later decision involving similar parties, referred to the above statement of principle with approval. In Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [No 2],[34] the Court cited the above passage in support of a statement that in construing the orders before them 'regard may also be had to the surrounding circumstances in which those orders were made'.[35]
[34] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [No 2] [2023] WASC 108 (Quinlan CJ, Beech and Vaughan JJA).
[35] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [No 2] [158] (Quinlan CJ, Beech and Vaughan JJA).
In support of that statement, the Court of Appeal cited the statements of the New South Wales Court of Appeal in Athens v Randwick City Council.[36] In that decision, Santow JA and Hodgson JA were in agreement with the manner in which the appeal should be disposed of, with Santow JA adding his additional observations concerning the approach to the construction of Court orders.[37] Those additional observations were met with the agreement of Tobias JA.[38]
[36] Athens v Randwick City Council [2005] NSWCA 317; (2005) 64 NSWLR 58 (Athens).
[37] Athens [129] – [141] (Santow JA).
[38] Athens [141] (Tobias JA).
In his reasons, Santow JA observed that a judgment is not just an aid to construction, rather it is the primary reference point. Accordingly, construing orders is not like resorting to extrinsic circumstances or external context to resolve ambiguity in a clause in a contract.[39] The following explanation by his Honour is instructive:
[128]I agree with Hodgson JA in the result and, subject to the observations which follow, his reasons. My observations concern how if at all ambiguity may be resolved in court orders and the related question of whether court orders can ever be “completely self-contained and self-explanatory” or indeed should be. Those matters are dealt with (at [27]–[38]) in the judgment of Hodgson JA.
[129]To pose the question as simply, can ambiguity in court orders be resolved by reference to their external context, obscures the point of what an order sets out to do. The purpose of a court order is, ordinarily, to give effect to a judgment. The judgment is not some kind of penumbral context surrounding the order. Rather the judgment is the source of the order. A court order derives from its originating judgment, as a transfer of land derives from the underlying contract. The order must therefore conform to the judgment, with only such latitude as the judgment allows. Likewise the transfer must conform to the contract. To speak therefore of the originating judgment as providing context for resolving ambiguity understates the primacy of that judgment as a source of interpretation of the order.
[39] Athens [140] (Santow JA).
Santow JA examined the competing authorities in the area, and preferred the line of authority that the meaning of words in an order should in an appropriate case be considered by reference to the reasons for judgment, which themselves find context in the overall proceedings.[40]
[40] As was explained by Le Miere J in Wright Prospecting Pty Limited v Hancock Prospecting Pty Limited [No 13] [2017] WASC 286 [10].
The legitimacy of referring to the reasons of the Court to construe associated orders was endorsed by Le Miere J in Wright Prospecting Pty Limited v Hancock Prospecting Pty Limited [No 13],[41] as well as by Tottle J in Russell v RCR Tomlinson Ltd [No 2][42] and Perram J in Re Group Pty Ltd v Kazal [No 3].[43]
[41] Wright Prospecting Pty Limited v Hancock Prospecting Pty Limited [No 13] [2017] WASC 286 [10] – [13] (Le Miere J).
[42] Russell v RCR Tomlinson Ltd [No 2] [2016] WASC 240 [63] (Tottle J).
[43] Re Group Pty Ltd v Kazal [No 3] [2017] FCA 754 [19] (Perram J).
The legal effect of the orders made by the Court on 2 April 2025 (which were made in the form sought by the first defendant in its chamber summons) was to require the plaintiffs to give further discovery of email communications in the inboxes of Mr Zeng and Ms Dillon which were responsive to the discovery categories. The order permits of no carve out or exception. Nor did I allow for any carve out or exception within my reasons which followed shortly after the orders were made, on 4 April 2025, in contrast to the reasons I published on the previous discovery application on 7 February 2025, to which I have referred above at [47]. Whether my subjective intention was to do so is irrelevant.
If regard is also had to the submissions presented on the application, as part of the surrounding circumstances permitted by the Court of Appeal of this State in the Hancock Prospecting decisions to which I have earlier referred at [60] and [61] above, I do not consider that the legal effect of the orders is thereby changed or modified in any way.
The legal effect remains the same.
The submissions made to the Court on the application indicate that the plaintiffs did not expressly approach the application on the basis that the adequacy of the discovery in the 2017 MCP Proceeding was under examination, while the first defendant approached the discovery application on a broader basis, as is apparent from senior counsel's comments extracted at [41] above.
These matters do not alter the legal effect of the orders which were made.
Thus, I accept the submission advanced by Mineralogy that the order made on 2 April 2025 is clear in its terms and required that the CITIC Parties give discovery, by 11 April 2025, of email communications located within the email inboxes of Mr Zeng and Ms Dillon that are responsive to the plaintiffs' discovery categories. The order is not subject to carve outs or exceptions.
The order made on 2 April 2025 must therefore be taken to extend to the sufficiency of the discovery given in the 2017 MCP Proceeding.

(2) The orders which should now be made

The Court must next address the exercise of the power in either in O 26 r 15 RSC or O 26 r 7 RSC, which Mineralogy seeks to invoke on this application. Given the views I have expressed above, I will approach the application by reference to the power in O 26 r 15 RSC.
The first defendant contended that the issue should be approached on the basis of the evidence which was present on the initial application, rather than permitting the plaintiffs an opportunity to revisit the issue.
In assessing the discretionary issues arising in this regard, and plainly the exercise of these powers involves a discretionary assessment of the matters, I do not consider it would be appropriate to shut out the plaintiffs from adducing and relying upon further evidence addressing the exercise of these powers. The power in O 26 r 15 RSC permits the Court to make such order as it thinks just. It is appropriate to receive evidence which materially and rationally bears on the exercise of that power.

The evidence led, and the contentions now raised, by the plaintiffs materially and rationally bears on the question which is raised by this application. The evidence is relevant to the Court's assessment whether further orders should now be made. In my view, the preferential approach is to review and assess the evidence presented on this important discovery issue, rather than to approach the matter on the basis that otherwise admissible and relevant evidence should be ignored.
The evidence and submissions reveals a continuing dispute between the parties on a number of issues.
I heard argument as to whether any additional documents created in this earlier period would be subject to legitimate claims for privilege, grounded in litigation privilege, given the period is proximate to the 2017 MCP Proceeding and the trial of that action before Kenneth Martin J. Mineralogy pointed to the decision of Hill J on the recent privilege challenge as an indication that any privilege claims require scrutiny, while the plaintiffs observed that her Honour was only concerned with advice privilege in a different context. The plaintiffs drew my attention to decisions of Kenneth Martin J in the 2017 MCP Proceeding on the question of privilege, which were resolved favourably to the plaintiffs, accepting that the dominant purpose of the documents was the litigation before his Honour.[44]
[44] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 8] [2022] WASC 46 (Kenneth Martin J); Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 13] [2022] WASC 475 (Kenneth Martin J). See ts 2200.
Senior counsel for Mineralogy emphasised the existence of two email accounts for Mr Zeng, which had only emerged in recent times from Mineralogy's perspective. There is an inference which should be found, according to Mineralogy, that additional documents exist in the other email account maintained by Mr Zeng, relating to his other role within the CITIC group.[45] The plaintiffs describe this as mere speculation.[46]
[45] DS [21].
[46] ts 2202 – 2203.
As to the contention that there is any utility in making further discovery orders against the plaintiffs, senior counsel for the plaintiffs, Mr Warnick SC, traced through the potential discovery categories (in effect, Category EA and Category EH) to make the submission that there was no likelihood of any unique documents existing in the email inboxes of the two executives in respect of this particular period.
Mineralogy also relied upon the contention that additional material may exist which relevantly bears on the question whether Mineralogy was provided with adequate information in order to assess the 2023 MCP. That is certainly an area or issue of relevance in the case. Mr Dunning KC supported that submission by reference to the content of the inadvertently disclosed document (which contains technical information concerning the MCP prepared in August 2021), to which I have earlier referred.[47]
[47] ts 2222 – 2232.
Mr Dunning KC submitted as follows:[48]
DUNNING, MR: …The documents reveal this: they reveal, as they say in terms, what you actually need for the purpose of reviewing the MCPs themselves. So the author of this document – that is, the technical people at CITIC – said, “This is the technical information that’s necessary to support a mine continuation proposal.”
And what I took your Honour through were a series of pieces of information in there that my client learns for the first time when it receives this. And if the internal CITIC personnel consider that that’s the sort of information you need to assess the mine continuation proposal and make the relevant comparisons. Then that lies at the centre of one of the complaints on my side, and that is to say, “You did not provide us enough information to assess the ’23 MCP.”
And what this document reveals is that there are internal documents that the CITIC parties themselves internally consider relevant to assessing an MCP, and that’s the minimum level of detail we need. Like, ultimately, your Honour will conclude that we probably need more because we have an interest beyond CITIC parties. But for present purposes, anything that they needed to be able to assess it is hard to see shouldn’t be provided to us. Now, it’s not a matter of coming to a final conclusion on that.
That’s one of the controversy which your Honour has to quieten. But there is a stark controversy that we have not been provided adequate information to assess the MCP. This is a document prepared by CITIC at a time that it could only ultimately be in the lead-up to the ’23 MCP because the ’17 MCP die had been effectively cast. And this was the sort of information that those within CITIC with technical knowledge, or if you let the engineers loose on it, not the lawyers, that’s what they actually thought you needed to be able to assess an MCP proposal
[48] ts 2228.
Mr Kirkwood SC for the plaintiffs, who also addressed the Court on this application explained in response that the submission advanced by Mineralogy that the material in the inadvertently disclosed document was new or revelatory ought be rejected.[49] Mr Kirkwood SC took the Court the statement of Mr Goodwin as filed in the 2017 MCP Proceeding, which referred to various documents also contained in the current trial bundle. I was taken to Exhibits 381, 633, 655, and 735.
[49] ts 2247 – 2252.
The statement of Mr Goodwin and these exhibits, on my assessment, tended to heavily undercut the submission made on behalf of Mineralogy that the inadvertently disclosed document contained revelatory material.
Having heard the parties' submissions, and reviewed the material relied on at the hearing of the application on 29 and 30 April 2025, I have formed the view that there is likely to be limited utility in making broad, additional discovery orders to require the plaintiffs to produce documents which respond to the discovery categories in this action. That is likely to lead to further disputes between the parties, which should be minimised given the trial commenced last week.
I also recognise that the period under focus (in effect between 28 April 2020 and 30 June 2021), extends to a period some 2 to 3 years prior to the service of the mine continuation proposals which are the subject of this action, which were served in August 2023. There is a significant time gap involved in this regard.
However, there is at least sufficient utility, on my present assessment, to impose a further, focused regime of discovery on the plaintiffs, particularly given the legal effect of the terms of the orders made by the Court on 2 April 2025, given the acknowledgement by the plaintiffs that documents in the period from 28 April 2020 to 30 June 2021 were excluded from the document collation process, and given the absence of a process on the part of the plaintiffs to assess documents created in this period for the purposes of preparing a discovery list.
The arguments as to relevance posited by the first defendant are relatively weak, in my view, but the points are at least arguable. To the extent to which the question of onus arises on this application, and I am not certain in the end that approaching this interlocutory matter by reference to onus is necessarily helpful, the plaintiffs ought be regarded as the party bearing the onus on this application, and I consider they have not satisfied the Court that further discovery orders should not be made.
In contrast, I do not consider there is sufficient utility in requiring a review of documents before this period, that is before 28 April 2020. That would be disproportionate. The primary focus of the current action is upon the 2023 MCPs delivered to the first defendant in August 2023. It is necessary to ring-fence any further orders, in the interests of justice.
It is important, in my view, that the plaintiffs and its solicitors undertake a formal assessment of the documents held in the inboxes of these executives over the period I have identified, which are responsive to Category EA and Category EH, or which might directly bear on the first defendant's contention that it did not have adequate information to assess the 2023 MCPs. The discovery should be provided on affidavit and any claims of privilege may of course be made.
In assessing the appropriate order to make, in the interests of justice, I again note the position of informational asymmetry in which Mineralogy finds itself, relative to the CITIC Parties. The Court should also be astute to ensure that appropriate discovery orders are made to facilitate the fair and just determination of the action, and avoid any forensic disadvantage to the extent that can be done consistent with O 1 r 4A and r 4B RSC.
The trial of the action is already underway. The orders I propose may have an impact on the trial process. But that impact arises not by reason of delay on the part of Mineralogy in seeking these orders, which effectively represent an attempt to ensure compliance with earlier orders of the Court.
That is not to criticise the plaintiffs or their solicitors, who made an honest assessment as to the scope of the earlier orders and have filed affidavit evidence which candidly explains the process undertaken. The solicitor for the plaintiffs has deposed on oath that the issue was not one he understood was the subject of the contested application and his sworn statement is not contested on the present application. Indeed, in several respects, senior counsel for Mineralogy embraced the accuracy of these sworn statements in support of his client's present application.
The interests of justice, as they apply in this important case between these large commercial parties, requires that discovery orders be made of a focused nature, in circumstances in which there are documents which are likely to exist which are at least arguably relevant to the matters in the proceeding.

F. Conclusion and orders

For the foregoing reasons, I propose to order as follows, but will hear from the parties as to the form of these orders:
1.Pursuant to O 26 r 15 RSC, the plaintiffs give inspection of the following documents, on a date to be fixed by the Court:
(a)email communications located within the email inboxes maintained by Mr Chen Zeng or Ms Helen Dillon, which were sent, received or created between 28 April 2020 and 30 June 2021; and
(b)which are responsive to Category EA or Category EH (as described in the orders made on 2 October 2024), or which directly relate to the allegation at [76(b)] of the defence (as to the sufficiency of commercial and technical information provided to Mineralogy to consider the 2023 MCPs).
2.The inspection of the documents in order 1 above is to be given electronically.
3.On a date to be fixed by the Court, the plaintiffs are to file and serve an affidavit of discovery in respect of the documents produced pursuant to order 1 above.
4.The plaintiffs are to pay the first defendant's costs of the application dated 24 April 2025.
I will hear from the parties as to any further orders which should now be made, consequent upon the above reasons.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IR
Associate to the Hon Justice Lundberg
5 MAY 2025