Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 13]

[2022] WASC 475

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   SINO IRON PTY LTD -v- MINERALOGY PTY LTD [No 13] [2022] WASC 475

CORAM:   KENNETH MARTIN J

HEARD:   6 APRIL 2022

DELIVERED          :   6 APRIL 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 - Further and better discovery application by first defendant - Case management considerations during running of trial - Application refused

Legislation:

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

Cases referred to in decision:

Bernard v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [No 2] [2020] FCA 109

P Dawson Nominees Proprietary Limited v Australian Securities and Investments Commission [No 2] [2009] FCA 413; (2009) 255 ALR 466

Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264

Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 6] [2021] WASC 475

Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 8] [2022] WASC 46

Sotheby's v Mark Weiss Ltd [2018] EHWC 3179 (Comm)

KENNETH MARTIN J:

(This decision was delivered extemporaneously on 6 April 2022 and has been edited from the transcript.)

1. These are my reasons for decision in relation to the application heard yesterday (5 April 2022) in the trial (Primary Trial) on the chamber summons by the first defendant, Mineralogy Pty Ltd (Mineralogy), seeking further discovery, filed on 30 March 2022 (folio 447).  That was, essentially, during week six of the Primary Trial.  I had that application by Mineralogy returnable yesterday, on day 24 of the Primary Trial, in week seven.  Mineralogy seeks on its application the following relief:

   1.The plaintiffs give further discovery on affidavit by a time and date to be fixed of all documents between 1 July 2021 and 29 November 2021 sent by or received from the plaintiffs' legal advisors concerning the alteration of the request for tenure from the areas depicted in Annexure 11 to 11A or from 11A to 11B of the plaintiffs' consolidated further re-amended statement of claim and any diary notes or the like taken by the legal advisors of the discussions had in the course of the making of those decisions.

2. This application was argued yesterday.  For the purposes of the exercise there were tranches of written submissions exchanged respectively, filed first from Mineralogy on 30 March 2022 seeking that relief (folio 449). 

3. The three plaintiffs' (CITIC plaintiffs) outline of written submissions filed on 4 April 2022 resists Mineralogy's application (folio 459). 

4. One of the issues arising at the outset is to resolve whether, in fact, it remains open for Mineralogy as the first defendant to bring the present application - bearing in mind its earlier application for further discovery - which is the subject of my reasons for decision in Sino Iron Pty Ltd v Mineralogy Pty Ltd[No 8] [2022] WASC 46 (delivered 14 February 2022). That application was heard on the papers. The date, coincidentally, was a week before this Primary Trial actually commenced, on 21 February 2022.

5. So, there is a certain proximity in relation to the commencement of the Primary Trial with those earlier interlocutory reasons. 

6. I will append to these reasons as published the respective written submissions of the parties in order to provide some definition to the debate and also to collect what is a comprehensive recitation of case authority found in all those submissions. 

7. I should also add that the application of the first defendant was supported by an affidavit of the first defendant's current lawyer of record, Ms Tracey Robinson, filed 30 March 2022 (folio 450).

8. Essentially, however, Ms Robinson's affidavit only collects a passing catalogue of exchanged correspondence back and forth as between the parties' respective solicitors of record leading to the present application.

9. I refer to the email that was sent by Ms Robinson of 24 March 2022 at 4.46pm found between pages 24 and 25 of her affidavit, being her communication to Mr David John, one of the partners at the lawyers of record Herbert Smith Freehills (HSF) for the CITIC plaintiffs.  Ms Robinson's email had said at page 25:

   Respectfully, we do not accept that such advice meets the dominant purpose test.  The form of tenure that was to be sought was at base a commercial decision for your client's to make with or without the input of its legal advisors.  Further, the decision(s) had consequences that transcended the conduct of the litigation.  We refer you to the allegations in [154A] and [154B] of the Statement of Claim.  It becomes apparent from those allegations that your firm's letter of 29 November 2021…was sent in order to engage certain express/implied terms allegedly found in the various project agreements.  It follows that the deliberations that preceded the sending of that letter were for the purpose of determining whether to attempt to invoke certain alleged contractual rights.  Those deliberations cannot meet the dominant purpose test merely because your client's legal advisors were involved in them.  The observations of Teare J at [22], [23] and [44] in Sotheby's v Mark Weiss Pty Ltd [2018] EWHC 3197 (Comm) apply with equal force here.

10. Ms Robinson's email communication of 24 March 2022 as it is, is a convenient recitation of a legal divide over privilege.  This was subsequently expanded upon in the written submissions of Mineralogy to which I have referred and then, was elaborated upon by senior counsel for Mineralogy, yesterday. 

11. The relief sought by par 1 of the chamber summons specifies a genre of communication which is being sought as the subject of this further discovery application temporarily spanning, effectively, the four-month period between July and November 2021 in terms of communications sent by or received from the plaintiff's legal advisers.

12. Almost invariably questions of legal professional privilege, or potential privilege arise where a counterparty is seeking access to passing communications back and forth between the legal advisers for a party sent to their client. 

13. The way the present application of Mineralogy was argued essentially sees the CITIC plaintiffs respond by contending the application of Mineralogy is an abuse of process.  Hence, they say that it ought to be dismissed at, essentially, that plenary level on the basis it does nothing more than apply once more for the same documents that were encompassed within an earlier application made by Mineralogy and was refused as the subject of my reasons for decision in Sino Iron v Mineralogy [No 8]. The abuse of process is said to be manifest, essentially, when one looks at the terms of the first defendant's chamber summons of 18 January 2022 underlying that application and the attempt as seen there to seek amended categories of discovery as are identified by reference to subpars (xiv), (xv), (xvii), (xviii) and (xix) - being so-called amended categories as subject matters of my earlier reasons. 

14. For the purpose of providing context to the present application made during the Primary Trial, I repeat and incorporate by reference what I have earlier said in those 14 February 2022 reasons, particularly at between [2] to [11]. Most fundamentally were my conclusions, in particular, at [45] and, indeed, the last sentence of [45]. There I had said:

    …I do not accept that Mineralogy has shown a likelihood as to the existence of operational consideration documents by the CITIC plaintiffs that would have been brought into existence other than for the dominant purpose of legal advice and use in this litigation.

15. There appears to be no real dispute, really, that the genre of document which is a subject of the latest discovery application by Mineralogy had also been earlier encompassed within the further discovery application made and determined under those earlier reasons.  The present application displays a narrowing somewhat of the earlier application which had been a wider request, as framed.  This is evidenced by the preface to the amended categories as sought then on that earlier application – by reference to:

    …all documents during the [Mine Continuation Proposals] Period including drafts recording or relating to the consideration by the CITIC Parties of, and the preparation and submission of (as the case may be), and any interaction with the State (in any capacity) in relation to…

16. There followed under that above chapeau, the requested categories of documents in relation to alleged 'MCP Subset of Requested Areas' and to the 'November 2021 Tenure Request', as defined in the pleadings.

17. Central to my rejection of the earlier discovery application made by Mineralogy was the CITIC plaintiffs' position that I found had been verified on oath. Namely, documents as provided under the already completed extensive discovery regime had been unfolding since, essentially, case management discovery orders of March 2020 and then of May 2020.  They had seen discovery extend over the preceding year as part of an interlocutory build up to this Primary Trial - by reference to largely agreed document categories that had evolved over time and, essentially, became a subject of the 20 May 2020 case management orders (folio 110). 

18. There can be no doubt that very considerable legal resources, time, effort and energy has been ploughed into what has already been a very extensive canvassing of the many documents already provided under the exhaustive pre-trial discovery regime, that has been unfolding for this action, prior to the Primary Trial commencing this year.

19. For the CITIC plaintiffs, they explain, via a number of Mr John's affidavits, that over 80,000 documents have been turned over in the process of them providing discovery.  Indeed, an electronic trial book of over 1,500 documents, as was submitted at the commencement of the Primary Trial, has been augmented and has grown as the Primary Trial and progressed, to extend today to over 2,500 documents.  I say all that in a context of fully accepting, as it is to put me, the forensic importance of discovery as an integral part of the policy of enshrining a fair trial for parties in civil litigation.  Nevertheless, for the present case there can be no doubt that the volume of discovery now given is already at a scale that would be almost unimaginable to an ordinary litigant.

20. In that context of the scale of the exercise so far, I would make reference to the observations of Allsop P (as his Honour then was) in the Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 decision, which is referred to in the exchanged written submissions which have been provided on the present application.

21. The definitive rationale for my rejection of the earlier discovery application as made previously in wider terms was my assessment that the basis on which the CITIC plaintiffs' lawyers had said that, (a), Mineralogy either already held such documents as a part of existing discovery categories provided, or (b), that they had been earlier provided as open lawyer‑to‑lawyer communications passing in a lead up to 29 November 2021, or (c), that the documents were a subject of legal professional privilege was a credible response on behalf of the CITIC plaintiffs. Relevantly, there does not really appear to be any dispute that the documents presently sought on this application must be a subset of what had been sought and rejected on the earlier application.

22. Moreover, it was a response by HSF for the CITIC plaintiffs which had been was verified on oath by the partner lawyer of record in this Court for the CITIC plaintiffs, Mr John.  Consequently, I had concluded at [45] of Sino Iron v Mineralogy [No 8]:

    Documents not already in the possession of the defendants, disclosed under the existing regime of category W discovery, or as a result of direct receipt by communications directly passing between the parties' lawyers to each other in the period leading up to the articulation of the concept of the MCP Subset of Requested Areas in October 2021 (and then as a subject of the uncontroversial ASOC amendments made by the plaintiffs to their statement of claim at 21 October 2021)  - are more than likely to be a subject of legal professional privilege.

23. I repeat that I added:

    I do not accept that Mineralogy has shown a likelihood as to the existence of operational consideration documents by the CITIC plaintiffs that would have been brought into existence other than for the dominant purpose of legal advice and use in this litigation.

24. The fact that this position was verified on oath by Mr John for the CITIC plaintiffs was a significant consideration in rejecting the earlier application of Mineralogy for further discovery.

25. The present application does not seek to challenge the likely heavy involvement of the CITIC plaintiffs' lawyers in the sending of communications on their clients' behalf around late 2021 - events which saw the scope of the extra tenure case of the CITIC plaintiffs evolve somewhat, to shrink in area to a much reduced level (compared to the area of extra tenure sought of Mineralogy say at March of 2018 and when the CITIC plaintiffs commenced the action in the Federal Court of Australia in October 2018). Additional tenure orders were first sought under the proposed mandatory injunctive orders seen under the prayer for relief of the original statement of claim.

26. The change in areas sought of Mineralogy is captured by comparing the map that was Annexure 11 to the original statement of claim of 23 May 2019 (folio 2), with the extra tenure areas as the subject of the amended statement of claim (ASOC) of 26 October 2021 (folio 259) by a revised tenure map - that became Annexure 11A to the ASOC.

27. Indeed, the likely heavy level of the CITIC plaintiffs' lawyer involvement is also discernible in the even later tenure claim as revised.  That saw at 29 November 2021 the extra tenure sought by the CITIC plaintiffs from Mineralogy, then a subject of prayer BA in a consolidated further re-amended statement of claim (CONSOC) of 30 December 2021 (folio 331), be crafted in terms of relief by reference to a further revised tenure map, Annexure 11B. 

28. The litigation had then, as between these parties, been on foot for over three years. 

29. Proceedings were actually commenced by the CITIC plaintiffs by the filing of a statement of claim accompanying an originating process in the Western Australian Registry of the Federal Court of Australia - under documents electronically submitted on 19 October 2018 and bearing a stamp of that court with the seal of its Registrar, at 23 October 2018 (folio 1).  That action was later remitted to this Court, under the national cross-vesting legislative regime at 23 May 2019, to be received and renumbered in this Court as CIV 1915 of 2019.

30. So, by 21 October 2021 (the time of grant of leave to amend in respect of the ASOC (granted by consent) with the ASOC then being filed with leave at 26 October 2021) this action as between its protagonists, displaying its underlying dispute over the CITIC plaintiffs' claimed rights to obtain additional compulsory tenure from Mineralogy for use in the Sino Iron Project - where the additional tenure was 'reasonably required' - had been live for over three years taking account of the time under case management in the Federal Court and later in this Court.

31. The likely heavy involvement of the CITIC plaintiffs' lawyers in the changes reflected in the extra tenure claim maps that eventually became ASOC Annexure 11A and then CONSOC Annexure 11B, as at 29 November 2021 - when the revised request was sent by HSF to Mineralogy (see exhibits 1925 and 1926) - is not really in dispute. 

32. What is more in dispute is an engagement or otherwise with the dominant purpose legal professional privilege threshold criteria, that I found had been met under the reasons of 14 February 2022 - upon the former discovery application - a position I repeat was verified on oath at that time. 

33. The present question is whether at this later time and during the Primary Trial, it is even permissible to seek to pursue a further interlocutory application in order to seek documents by further discovery, that undoubtedly were a subject, or were at best, a subset of that former (rejected) discovery application by Mineralogy.

34. The question is not so easy to answer in terms of a theoretical permissibility of this time.  For the purposes of the present application, I have the assistance of the written submissions of the CITIC plaintiffs.  They refer me to Jackson J's decision in Bernard v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [No 2] [2020] FCA 109. His Honour's reasons at between [4] - [6], helpfully collect and refer to leading case authorities in this realm, in particular, to the approach of Goldberg J in P Dawson Nominees Proprietary Limited v Australian Securities and Investments Commission[No 2] [2009] FCA 413; (2009) 255 ALR 466.

35. From out of Goldberg J's reasons seen at [49] and in turn, as was cited by Jackson J, his Honour considered what he referred to as the two divergent views upon circumstances in which a court would entertain a second interlocutory application. First is the so-called the 'strict' view.  The other, is a so-called 'liberal' view. 

36. Goldberg J in the end, did not need to decide as between those two extremities.  Instead, at [49] his Honour had observed - and I would respectfully apply the same approach today in determining the present application - that:

    I consider that for present purposes in order for the applicants to satisfy the threshold issue they need to persuade me that since the order I made on 2 November 2007 and the decision of the Full Court, one or more of the following factors has occurred or is satisfied: 

    (a) there is new material or new evidence which was not available, or reasonably available, to them at the time the orders were made on 2 November 2007 and 4 July 2008;

    (b) there has been a material change in the circumstances since those orders were made; 

    (c) there are exceptional circumstances which warrant re-consideration of the matter, the subject of their notice of motion;  and

    (d) as a matter of discretion, the justice of the matter requires that the applicants be allowed to revisit the matter, the subject of their notice of motion.

1. Jackson J at [6] of those reasons indicated a widespread acceptance of the same fourfold approach as had been explained by in Goldberg J in P Dawson v ASIC at [6], and including by Jagot J and Reeves J in decisions his Honour mentions at [6] of his reasons.  Jackson J said:

   I take the same approach here, pausing only to add that I agree with Reeves J's observations in Adata that in addition to the considerations above, the question must also be determined with regard to the overarching purpose of the civil practice and procedure rules as expressed in section 37M(1), subsection of the Federal Court of Australia Act1976 (Cth) to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.

2. Those policy objectives in terms of limiting unnecessary expense and promoting efficiency towards an overall just resolution of civil litigation disputes are found elsewhere, usually in the rules of the superior courts of Australia.  This Court adopted them, under its Rules of the Supreme Court 1971 (WA) Order 1 rules 4A and 4B. Hence, I also respectfully adopt what Jackson J observed concerning the engagement with that relevant case management policy criteria - in augmentation to the four considerations as identified by Goldberg J.

3. Accepting that is the approach to follow on the present application, the key question then is not so much around a likely involvement of the lawyers acting on behalf of the CITIC plaintiffs around the late 2021 communicated extra tenure claim requests as reflected in those Annexure 11A and 11B maps at the times they were sent to Mineralogy.  Such lawyer involvement is overwhelmingly likely, in my view. 

4. The truer question is whether the dominant purpose test underlying the application of legal professional privilege has, in any way, been undermined by anything that has occurred subsequent to my earlier decision at 14 February 2022. 

5. Here, Mineralogy directs a heavy reliance upon a decision of Teare J made in the High Court of Justice in the Queen's Bench Division of the Commercial Court in Sotheby's v Mark Weiss Ltd [2018] EHWC 3179 (Comm)(delivered 26 November 2018). 

6. No point of differentiation in terms of legal principle between the test applied, that is, the dominant purpose test within the courts of England and Wales and to the legal threshold for legal professional privilege, used within the courts of Australia, arises.

7. The facts of that particular case concerned an alleged fraudulent artwork. Two art experts had been engaged for the purpose of providing their advice in liaison with lawyers from Freshfields as to views which had been expressed by one expert and then, any need for a peer review to be conducted by a second expert over the authenticity of the painting at issue.  In the end, upon the presenting facts of that decision, Teare J came to the conclusion that there had been, in fact, dual purposes underlying that engagement of the experts - with communications to the experts passing to-and-fro with Freshfields in that process.

8. Consequently, on those facts before Teare J, where there had been factually discerned two purposes of equal weight underlying the circumstances in which the communications had occurred, the dominant purpose test was found to be not satisfied. 

9. But there is nothing, with respect, at all surprising or unusual about such a factual conclusion and the result denying the privileges application by reference to the unique facts of that particular case. 

10. The question here then is by reference to the application of the same dominant purpose test, that is, a dominant purpose test to likely communication surrounding circumstances of October and November 2021, when fresh extra tenure claim maps emerged under communications made to Mineralogy and ultimately became Annexures 11A and later 11B within the plaintiffs' amended pleadings.  So, do those communications meet that threshold dominant purpose test or not?

11. In Sino Iron v Mineralogy [No 8], I concluded, in effect, that there was nothing to undermine the verified on oath document inspection position - concerning the statement cited at [22], in particular, by reference to subpar (c) - that the communication of Mr John concerning documents being a subject of legal professional privilege, with those documents being brought into existence with involvement of legal advisers for a dominant purpose of obtaining or giving legal advice. 

12. What then has subsequently emerged to potentially open up, applying the Goldberg J criteria, any basis for a revision towards that position? 

13. Essentially, what has occurred since 14 February 2022, that is, when those reasons were delivered, is that the Primary Trial has now been commenced, albeit it was slightly delayed for various reasons, at 21 February 2022 and is still running.

14. Yesterday was day 24 of a lengthy trial.  Communications appended to Ms Robinson's affidavit refer to evidence from the plaintiffs' expert witnesses called so far at the Primary Trial.  Professor David Williams gave evidence in relation to, essentially, tailings dam storage facilities (TSF) at the Sino Iron Project and to the requirement for extra TSF area space to progress the Sino Iron Project towards an operational entitlement for the CITIC plaintiffs to exploit two billion tonnes of magnetite ore upon location of the mining leases M08/123, M08/124 and M08/125 which they hold from Mineralogy.

15. The other expert relied upon is by Mr David Netterfield.  His evidence was more directed towards the operations of the port facilities at Cape Preston (Cape Preston Port), particularly over land operations of the Sino Iron Project's Cape Preston Port export terminal facility. 

16. As indicated under the communications appended to Ms Robinson's affidavit, the position, put explicitly by the CITIC plaintiffs' lawyers to her, is that there are no communications, relevantly, with those experts relating to the tenure area maps, which are Annexure 11A and Annexure 11B, as regards extra tenure.  Consequently, there was nothing more from a documentary perspective that the first defendant could have been able to explore with those experts during their evidence and cross‑examination in relation to those maps. 

17. A second factor is the evidence of the plaintiffs' other lay witnesses, two in particular:  Mr Robert Goodwin and Mr Neil Tonkin.  Their lay technical evidence was a subject of, in Mr Goodwin's case, a lengthy primary witness statement admitted into evidence (exhibit H1).  That statement was provided well before the Primary Trial in accord with my pre-trial directions.  There followed as well, a supplementary witness statement by Mr Goodwin (exhibit H2).  In Mr Tonkin's case, his witness statement was likewise provided before the Primary Trial began in accord with the case management directions timetable (exhibit L1). 

18. The arguments of Mineralogy in terms of suggesting that satisfaction of the dominant purpose test had potentially been undermined, essentially, were made by reference to what was not within the witness statements or was not found in the evidence of either of Mr Tonkin or Mr Goodwin.

19. The Mineralogy privilege objection grievance, essentially, is that it was unable to explore with those trial witnesses (in Mr Goodwin's case, he was the deputy Chief Operating Officer of the Sino Iron Project and in Mr Tonkin's case, he was a recently departed former employee at the end of January 2022 – but prior to leaving had held a significant role in terms of the operation of the Cape Preston Port and, in particular, its land shore operations) any of the decision making that underlay the late 2021 tenure area truncations and changes. 

20. The suggested inability to pose effective questioning of this issue was predicated on a lack of knowledge in both lay technical witnesses called on behalf of the CITIC plaintiffs at the Primary Trial about these charges and decisions underlying them.  This essentially underlay the Mineralogy submission that there had been a lack of opportunity to explore during cross-examination the changed tenure request contraction circumstances - a 26 October 2021 phenomenon encountered in the Annexure 11A tenure map - and then later in the 29 November 2021 map which eventually became Annexure 11B to the CONSOC.  Neither Mr Goodwin, nor Mr Tonkin was able to cast any real light on those late 2021 tenure request changes, because they had had no involvement in them at all.

21. Therefore, it was put that the lack of opportunity for Mineralogy to interrogate via cross-examination at the Primary Trial, any underlying rationale for tenure claim changes as are reflected in those different maps - emerging as they did only in October and then November 2021 - with an early 2022 scheduled Primary Trial then looming towards a commencement, was prejudicial. 

22. Difficulty for Mineralogy was then said to, in effect, aggregate - viewed by reference to the lack of any insights towards extra tenure areas changes from the experts.  This was said to provide a proper basis to, in effect, renew a more tailored request for further discovery - on a basis that the operational considerations necessarily underlying the request in late 2021 for the truncated area tenure changes seen in those maps meant the dominant purpose test could no longer be met. 

23. And notwithstanding a likely involvement then of the CITIC plaintiffs' lawyers, which appears to be accepted, it is said that in circumstances where extra tenure is sought compulsorily from Mineralogy - by reference to lesser as-modified areas - as a subject of the new tenure maps being Annexures 11A or 11B, that there must necessarily have been some operational considerations in play underlying those tenure area changes. Operational inputs would have been needed in terms of how operations at the Cape Preston Port, particularly as regards stockpiles of export concentrate product to be stored on the land side of that Port, and indeed the Sino Iron Project as a whole, could viably operate in future in terms of the Annexure 11B revised tenure areas - the context of the 2017 Mine Continuation Proposals (MCPs) viewed by reference to these modified tenure requests made in those late 2021 maps.

24. That is the basis, in effect, on which it is now put for Mineralogy that operational considerations must have existed for the Sino Iron Project.  And so, like Teare J concluded in Sotheby's v Mark Weiss, it is put that I should be persuaded to order either relief in terms of par 1 or par 2 of Mineralogy's chamber summons - since the dominant purpose threshold situation, viewed in the light of how the Primary Trial has unfolded so far, now puts matters in a different perspective. This is because of a strong likelihood of operational purposes underlying those late 2021 extra tenure truncations in the scope of the earlier extra tenure request.

Conclusions

1. In terms of the present application of Mineralogy (which is strongly opposed) I now hold, on day 25 of the Primary Trial, greater and better insights in terms of the disputed issues presenting between the parties - after the extensive openings and trial evidence from the parties - than I did at the time of the earlier interlocutory decision on further discovery delivered a week before the Primary Trial began - the subject of Sino Iron v Mineralogy [No 8].

2. Nor do I, or would I, deprecate the importance of discovery towards this particular extra tenure change of scale within the Primary Trial, in terms of the final injunctive relief that is ultimately sought against Mineralogy.  Prayer A of the injunctive relief, essentially, has not changed at all in terms of compulsive orders that seek to compel Mineralogy, as first defendant, to submit (to the Minister) jointly with Sino Iron and Korean Steel, the December 2017 MCPs. 

3. But the related tenure relief as is now sought by reference to the Annexure 11A map as at 26 October 2021 under the ASOC and then as prayer BA, by reference to the CONSOC Annexure 11B map as it evolved over time.

4. The Annexure 11B tenure map, in fact, had been appended to the HSF communication on behalf of the CITIC plaintiffs to Mineralogy, at 29 November 2021.  

5. That HSF communication effectively precipitated the second civil action which was only filed a few days thereafter (of 8 December 2021) and which subsequently became consolidated with the present action, under my 29 December 2021 orders implementing the reasons on the consolidation arguments; see Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 6] [2021] WASC 475 (delivered 22 December 2021).

6. The additional tenure sought of Mineralogy is the important trial issue.  It has been the subject of extensive consideration at the Primary Trial - as to the precise additional tenure sought and needed, whether it is reasonable to seek that tenure, or seek all of it, and then whether it is unreasonable for Mineralogy to refuse it. 

7. The role(s) which each of the requested extra areas, or as now modified tenure areas, would play overall within the continuous operation of the Sino Iron Project is live. So is the stance of the CITIC plaintiffs which is that all this extra tenure sought of Mineralogy is essential, in order for them to obtain what had been promised, effectively, to them by Mineralogy and, indeed, promised also by Mineralogy to the State - under the terms of the Iron Ore Processing (Mineralogy Pty Ltd) Agreement found as within sch 1 and sch 2 to the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Act 2002 (WA) - towards ensuring a continuous operation of the Sino Iron Project in the Pilbara of Western Australia at Cape Preston is met.

8. So, the importance of the tenure issue in this Primary Trial is not for a moment ever lost - given the greater insights I now hold at this time concerning these issues in their context for the present application for further discovery. 

9. Weighing this all up, the same question still presents.  Is there anything, effectively, that has occurred since 14 February 2022, which in the overall interests of justice supports further discovery orders the subject of the present chamber summons of Mineralogy?

10. At the end of the day, I must conclude that I am still not persuaded that any of the considerations that have been raised and relied upon by Mineralogy, essentially, as suggested changes to circumstances since my earlier Sino Iron v Mineralogy [No 8] discovery decision, do provide a sufficient basis to suggest that the engagement of the dominant purpose test which I was satisfied was met as at 14 February 2022, has since changed and been undermined by materially different arising considerations.

11. The considerations raised by reference to the evidence of the Primary Trial experts, on my view, are neither here nor there.  Those CITIC experts dealt, as they were always going to, with the TSF Cape Preston Port stockpile capacity and operational considerations. 

12. Of course, if Mineralogy, as first defendant, wishes to put a closing submission at the end of the trial concerning the absence at the Primary Trial of any CITIC plaintiff witnesses called to give evidence concerning the particular tenure truncation aspects of late 2021 changes at the Cape Preston Port, then it is perfectly open for Mineralogy to do that.  It has lost no rights to make whatever submission it sees fit concerning the reasonableness of the tenure request made for the extra tenure as that tenure 29 November 2021 request came to be modified, by reference to the revised tenure map that is the subject of Annexure 11B. 

13. However, I am not kept satisfied, either by reference to the state of the Primary Trial's expert evidence or, indeed, from the CITIC plaintiffs' other lay technical evidence from Messrs Goodwin and Tonkin, that this evidence provides any basis to undermine a prima facie continued engagement of the dominant purpose test supporting legal professional privilege. 

14. In my dialogue with senior counsel for Mineralogy as this matter was being argued, I hypothesised lawyer input to decision-making circumstances in which the bringing into existence of the later reduced and modified tenure requests observed as are a subject of Annexures 11A and 11B might, depending upon the hypothesised circumstances, still fall entirely under the umbrella of meeting the required level of dominant purpose of providing legal advice within a context of pending litigation, particularly in large scale civil litigation pending since October 2018. 

15. Equally, Mr Dunning KC was able to hypothesise somewhat more varied potential factual circumstances by which a meeting of the dominant purpose test might well then be undermined - because of an intrusion of a dual purpose by an operational nature consideration in the decision communications.  The exchange only simply highlights that lawyers can too easily hypothesise, as indeed is seen from the facts of Teare J's decision in Sotheby's v Mark Weiss, very widely differing potential underlying fact scenarios - which bear distinctly and differently on the application of the test and on end results. 

16. My point is that for an application of that test to the present circumstances, I am not left satisfied that anything has emerged factually which sufficiently bears upon detracting away from what is the still verified on oath position seen under Mr John's affidavit of 1 February 2022 (folio 361) for the CITIC plaintiffs - and which had moved me to conclude at 14 February 2022 that the dominant purpose test was met.  That remains the position.

17. In my view, the further suggested event considerations that are now relied upon by Mineralogy are insufficient alone or together to undermine, or to detract from the application of that legal professional privilege engagement position – which, I reiterate, was verified on oath.  Mineralogy, as first defendant may make whatever closing submissions in the Primary Trial it sees fit in terms of the overall evidentiary position concerning what it claims is void CITIC evidence explaining the changes in the scale of the tenure sought at late 2021, on the state of the Primary Trial evidence overall.

18. But presently for this application, I am not left persuaded, taking account of all factors now raised by Mineralogy and bearing in mind the greater knowledge and insights held at day 25 in week seven towards the additional tenure position, that things have changed much if at all, away from what prevailed as at 14 February 2022.  

19. On that basis, the dominant purpose test's engagement to deny the as‑requested documents to the extent they have not otherwise been provided to date, is not undermined.

20. That remains the position and on that basis Mineralogy's application must fail.  It is hereby refused.

    Annexure A

Annexure B

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