Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 14] - [2022] WASC 476

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   SINO IRON PTY LTD -v- MINERALOGY PTY LTD [No 14] [2022] WASC 476
CORAM:   KENNETH MARTIN J
HEARD:   12 APRIL 2022
DELIVERED          :   12 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 - Proposed late pleading amended to defence of self-represented litigant during trial - Further proposal to add a counterclaim seeking declaratory relief - Issues flagged by amendments live for some years before trial - No prejudice to second defendant as self-represented litigant in substantive disallowance of amendments - Litigant permitted to make closing arguments on legal points raised in alignment with those of first defendant closing

Legislation:

Competition and Consumer Act 2010 (Cth)
Foreign Acquisitions and Takeovers Act 1975 (Cth)
Iron Ore Processing (Mineralogy Pty Ltd) Agreement Act 2002 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Application refused

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):

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 16] [2017] WASC 340
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 5] [2021 WASC 473

KENNETH MARTIN J:

(This judgment was delivered extemporaneously on 12 April 2022 and has been edited from the transcript.)

Mr Clive Palmer's application is made as second defendant in this action under his chamber summons filed 6 April 2022 (folio 463). The trial commenced on 21 February 2022 (Primary Trial).
In the Primary Trial the three plaintiffs (CITIC plaintiffs), essentially, seek two main species of mandatory injunctive final relief under the terms of their consolidated further re-amended statement of claim (CONSOC) pleading that has been filed in these proceedings (folio 331). The first concerns a submission to the relevant State Minister (Minister) for approvals of certain proposals known as Mine Continuation Proposals (MCPs) to the Minister under 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). The second concerns additional tenure also sought from Mineralogy to support the Sino Iron Project.

Overview of the Primary Trial

There was an acquisition in 2006 by CITIC Ltd (CITIC) of all the shares in Sino Iron Pty Ltd (Sino Iron). That occurred under a takeover agreement that had been submitted to the Commonwealth Treasurer (Treasurer) and, ultimately, was able to proceed in the absence of any objection raised under the Foreign Acquisitions and Takeovers Act1975 (Cth) (FATA).
Consequently, control and ownership of the shares in Sino Iron (indirectly) passed from Mineralogy to the new acquiring parent - that is, to CITIC, a Hong Kong based corporation, after that takeover agreement was completed in its performance.
Likewise, in 2008 a similar second corporate acquisition transaction occurred, this time in relation to the acquisition of all the shares in a second Mineralogy-Palmer controlled subsidiary, namely Korean Steel Pty Ltd (Korean Steel).
So, by 22 October 2008, by CITIC's (indirect) acquisition of all shares in those two former Mineralogy subsidiaries, control had passed effectively to CITIC under two takeover agreements. The agreements were put before the Treasurer under the FATA and were allowed to proceed. Those two takeover agreements once completed, saw, in effect, CITIC's capital acquisition of all the shares in those two former subsidiary corporation entities, for US$415 million in aggregate.
Acquisition of the shares in the two Mineralogy subsidiaries gained, for CITIC, the benefits of the valuable rights and proprietary rights held by those entities as had been contractually granted to them, by their former parent over certain prospective mining tenements Mineralogy held in the Pilbara of Western Australia.
Consequently, CITIC's acquisition of the shares in Sino Iron and Korean Steel and the passing of their control to CITIC saw it obtain the benefits of the respective rights held by Sino Iron and Korean Steel in respect of their joint mining of one billion tonnes of magnetite ore upon designated mining leases in the Cape Preston region in 'Area A' (as identified by the State Agreement).
The present Primary Trial arises in circumstances after the establishment of the mining operation, essentially from nothing at Cape Preston and an establishment of all required infrastructure and processing facilities - including elaborate magnetite ore operations towards its extraction, processing to concentrate, transportation, dewatering and storing for the purposes of export to China.
A continuing aspect to the contractual agreements with Mineralogy ‑ which delivers rights to mine and occupy certain designated 'Site Lease Areas' (SLAs) to Sino Iron and Korean Steel, following the acquisitions of the shares in those entities by CITIC - is the contractual royalty obligations by those entities in respect of ore that is mined, processed into concentrate and then exported to pay to Mineralogy royalties as designated in the Mining Right and Site Lease Agreements (MRSLAs), in respect of product, specified in the MRSLAs as Royalty Component A (RCA) and Royalty Component B (RCB).
My reasons for decision in the RCB litigation, Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 16] [2017] WASC 340 (delivered 24 November 2017) explain the background to royalty payment obligations to Mineralogy of Sino Iron and Korean Steel.
The State Agreement, as I have mentioned, is contextually at the apex of the relationship of multiple underlying Sino Iron Project contractual agreements between the parties, including the MRSLAs.
The Sino Iron Project relationship, effectively, sees significant project proposals required to be submitted from time to time by those entities under the State Agreement to the Minister for their approval.
Original proposals under the State Agreement as were previously approved, are said by the CITIC plaintiffs to have been prepared based then upon a mine life of only some five years - as a commencing period applicable at the start up stage of mining operations - essentially from nothing at the Cape Preston mine sites.
However, as the Sino Iron Project ore processing operation has continued over time, the mine operator acting on behalf of Sino Iron and Korean Steel, through CITIC, has planned for the expansion into the future of the mining operations by reference to proposed MCPs - which need to be submitted to then hopefully be approved by the Minister under the regime of the State Agreement.
Since 2016 there has been ongoing attempts made on behalf of Sino Iron and Korean Steel to settle upon MCPs for the next phases of the Sino Iron Project. These proposals would seek, essentially, to expand the current mining pit areas, to provide further areas for waste tailing storage facilities (TSFs) and to provide further areas for the storage of waste rock known as waste rock dumps (WRDs).
A series of MCPs proposed in 2016 for Sino Iron and Korean Steel could not ultimately be progressed further with Mineralogy. Nothing beyond context is now sought to be made of that in this litigation.
There followed further proposed MCPs of 2017. They were also prepared on behalf of Sino Iron and Korean Steel. At 18 December 2017 these revised MCPs for Sino Iron and Korean Steel were presented on behalf of the CITIC plaintiffs to Mineralogy, effectively seeking then for Mineralogy to endorse, sign and to submit those MCPs to the Minister for the Minister's approvals as 'approved proposals' under the terms of the State Agreement.
The ongoing difficulty is that Mineralogy declines to submit the MCPs to the Minister. Mineralogy has been steadfast in its refusals to submit those plans, which are, effectively, the draft MCPs provided to Mineralogy to adopt and to submit in December 2017. Essentially there is a stalemate in the progression of these MCPs. They have still not reached the Minister.
A significant and related component of what is proposed under those MCPs, raises the second tier of major controversy as between the parties in this Primary Trial. This sees Sino Iron and Korean Steel require Mineralogy to gift them with further adjacent areas from out of Mineralogy's neighbouring mining tenements - for instance at the south and to the east of the existing Sino Iron Project mining operations. At the shore side areas at the port at Cape Preston (Cape Preston Port), further areas are sought from Mineralogy's tenement - to provide Sino Iron and Korean Steel with more space at the Cape Preston Port to store its dried out stockpiled export product prior to it being transhipped and exported.
It is this 'extra tenure requirement sought from Mineralogy' aspect, related to the request to submit the MCPs to the Minister for approvals, that carries with it an argument which has been ventilated between the parties almost from the inception of this Primary Trial's main dispute. Indeed, senior counsel for the CITIC plaintiffs, Mr Karkar KC in his opposing submissions today, took me to several communications of 2019 on the very issue; see exhibit 1703 (29 January 2019), exhibit 1705 (30 January 2019) and exhibit 1704 (containing a Herbert Smith Freehills (HSF) communication of 26 February 2019).
Embedded in that correspondence, and indeed in the currently pleaded defences of Mineralogy and Mr Palmer, as this litigation has proceeded, is a two-fold argument. Namely, that the stance of the CITIC plaintiffs in terms of, (a), asking for Mineralogy's assent to and submission of the MCPs to the Minister for approval under the State Agreement (to hopefully become in due course 'approved proposals'), and then, (b), inherently seeking the further tenure areas, as extra areas sought from Mineralogy - to provide greater WRDs, or greater TSF capacity and indeed, for greater volumes of storage of stockpiled concentrate on hand at the Cape Preston Port - all constitute 'steps' that fall within purview of the FATA and need to be notified before proceeding further (after receipt of a 'no action' advice from the Treasurer under the FATA - removing that obstacle to matters proceeding at that point).
Now, the first defendant, Mineralogy, has pleaded by its sixth further amended defence of 16 February 2022 (6FAD) (folio 384) in this litigation a discrete defence raising the FATA. It contends, in effect, that the terms of the FATA, as regards actions, are engaged within the overall framework of the CITIC plaintiffs seeking to advance the 2017 MCPs and manifestly, by reason of the required grants of further tenure areas that are sought to be compelled from Mineralogy, underlying those MCPs.
There presents then a very significant debate in the Primary Trial as between the CITIC plaintiffs and Mineralogy over whether or not the terms of the FATA have yet been engaged, or not (and - on Mineralogy's defence plea - infringed).
But the counter-position of the CITIC plaintiffs - and I am obviously summarising - is that primarily, they only ask the Court to grant the compulsive orders as seen in the prayers for relief under the CONSOC concerning Mineralogy submitting the MCPs to the Minister and for it to grant them extra tenure areas for the Sino Iron Project.
The CITIC plaintiffs say that Mineralogy must submit the MCPs for their approval. They then say that, to the extent they seek tenure provision relief, in relation to Sino Iron Project for requested further tenure areas for the greater storing of waste rock, or for waste tailings, or to stockpile their concentrate produce prior to its export - that any injunctive orders as ultimately made by the Court (assuming the CITIC plaintiffs are otherwise successful at this Primary Trial in establishing a contractual, equitable or statutory basis for such relief) will be orders expressly drawn up and predicated on the Court making any such relief as being conditional on the Treasurer, first, being asked for approval (more correctly, for a 'no action' advice) to any such acquisition of further tenure from Mineralogy. In other words, the Court will only be moved it is said (assuming success otherwise the CITIC plaintiffs) on a basis that the ordered relief is conditional upon a prior obtaining of such clearance from the Treasurer under the FATA.
The argument of Mr Palmer that the FATA has already been engaged by what is proposed (and has now been infringed) is a somewhat unprecedented legal argument.
The argument was foreshadowed some time ago. It was also flagged again back on 23 June 2021, as I was programming this action towards trial dates - on a basis that it was then going to be the subject of an interlocutory application to address the FATA issue made earlier by Mr Palmer and Mineralogy.
Indeed, I had programmed the hearing of such an application - and a chamber summons was then filed by both defendants seeking effectively, the summary dismissal of the proceedings on the basis of this FATA engagement and infringement argument.
For reasons that were never really explained to me, both, Mineralogy and Mr Palmer did not proceed with that summary dismissed application at the time.
There has since been, in the context of this Primary Trial, which commenced on 21 February 2022, a further application by Mr Palmer seeking leave for him out of time to commence a summary application to have the same point determined. After hearing Mr Palmer in person, I declined then to grant that leave - on the basis essentially that it seemed to me that the FATA engagement point that is ultimately sought to be argued over - should be determined on a final basis, in the context of facts as found at this Primary Trial, in preference to any resolution on a summary judgment basis, that could be defeated by showing bare argument to the contrary.
Mr Palmer is a second defendant in this Primary Trial because the CITIC plaintiffs - insofar as they also seek statutory relief against Mineralogy on a basis of alleged unconscionable conduct said to be contrary to s 21 of the Australian Consumer Law (ACL), found within sch 2 of the Competition and Consumer Act 2010 (Cth), by reason of Mineralogy's contended failure to submit the December 2017 MCPs and, correlatively, by not providing the extra tenure that they seek at the Cape Preston Port area for the now well-established Sino Iron Project - say further that Mr Palmer, effectively, as controller and alter ego of the corporation Mineralogy, is liable as an accessory to the infringing conduct of Mineralogy under the terms of the ACL. So, they argue that Mr Palmer is liable and can be joined personally, in effect, for compensation - as somebody knowingly concerned in, or as a party to the unconscionable conduct by the company he controls, namely, the first defendant, Mineralogy.
However, the primary relief I am concerned in determining in the Primary Trial is over the final mandatory injunctive orders - which are directed first towards Mineralogy concerning its required accession to and submission for approval purposes of the December 2017 MCPs to the Minister; and, second, the required grant by Mineralogy of the extra tenure areas that the CITIC plaintiffs say they need in order to support the MCPs as continuing plans for the Sino Iron Project into the future.

Disposition

Mr Palmer's in-person chamber summons (folio 463), curiously, is only filed on day 25, week seven of the Primary Trial. It expresses itself at par 1 to be an application made in accordance with Order 20, rule 6 of the Rules of the Supreme Court 1971 (WA) (RSC). Manifestly, that rule is not potentially engaged. His application is for leave to amend his defence pleading and, indeed, to bring in not only an amended defence, but also an amended pleading as proposed that would incorporate for the first time a counterclaim advanced by Mr Palmer. That would likely be an application under RSC Order 21, rule 5 and I approach the matter on that basis - given Mr Palmer acts as a self-represented litigant currently.
Appended to Mr Palmer's chamber summons is a draft pleading (Annexure A) which is expressed to be his sixth further amended defence and counterclaim to the CONSOC of the CITIC plaintiffs, supporting Mr Palmer's application to so amend his defence and also to bring a counterclaim during the Primary Trial (when the witness evidence adduced was concluded at day).
So, Mr Palmer's present application emerges at a curious time, bearing in mind the late stages of the Primary Trial.
His application is supported by an affidavit of a Queensland-based lawyer, Mr Sameh Iskander, who, in his affidavit filed yesterday (folio 465), that is, 11 April 2022, says that he is a solicitor who has acted for Mr Palmer and Mineralogy from time to time in the past. However, Mr Iksander says that he does not act for him on the present application (or in the Primary Trial) where Mr Palmer is acting as a self-represented litigant, as second defendant; see [17] of my reasons in Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 5] [2021 WASC 473 (delivered 22 December 2021), where I explain the history concerning Mr Palmer's eventual self‑representation at the Primary Trial.
Mr Iskander, in his affidavit, would seek to give evidence about Mr Palmer and of the recent illnesses he says Mr Palmer has suffered. There is no explanation provided for why Mr Palmer cannot now give that evidence himself.
The hearsay evidence that Mr Iskander would seek to give is to an effect as was identified at par 8 in that affidavit - in terms of Mr Palmer's recent double pneumonia and a diagnosis with the COVID-19 virus that are said to have inhibited him from preparing his defence, from following arguments and from reading transcripts.

Mr Iskander ends on a basis by saying he has not given any legal advice to Mr Palmer regarding the relief he would seek by way of declarations and counterclaim.
By a document that was earlier filed calling itself Mr Palmer's outline of written submissions (folio 464), applying for leave to file this sixth further amended defence and counterclaim, Mr Palmer there submits (at par 4):
In addition, my defence does little more than expand upon existing defences in [Mineralogy's sixth further amended defence] and creates no new issues in the proceeding.
Mr Palmer continues at par 5:
My proposed counterclaim seeks declarations primarily in respect of matters relating to FIRB which are simply corollaries to any findings in respect of a successful FIRB defence. Such declarations will have significant utility in respect of the positions as between the parties and there would be a significant public interest element in the making of the declarations sought.
Mr Palmer's submissions proceed at pars 17, 20 and 26 to address a number of related realisations he says came to him, in effect, (at par 17) in relation to the position of the CITIC plaintiffs in terms of the suggested implications in relief that they seek in this Primary Trial.
Unsurprisingly, Mr Palmer's amendment proposal position as expressed under par 17 - and indeed elsewhere - is heavily criticised by senior counsel for the CITIC plaintiffs.
Senior counsel for the CITIC plaintiffs, Mr Karkar KC points out, as indeed is now demonstrable, that the FATA notifiable action point has been bandied back and forth as between these parties, since 2019 at least. It is embedded as a defence within the pleading of Mineralogy, whose relationship of course, is also very closely connected to Mr Palmer.
The FATA point is also embedded within the written opening outline of submissions as were filed for the purposes of the Primary Trial by Mineralogy on 17 February 2022 (see folio 389 at pars 195 to 213) and addressed there for a final determination within the context of the many other trial issues that also fall for determination in this Primary Trial and in respect of which all the receipt of evidence is now complete.
The question then is whether, in these opposed circumstances, leave should be given at this late stage for the as-proposed sixth further amended defence of Mr Palmer and its accompanying counterclaim.
Whilst, of course, I am prepared to allow Mr Palmer to amend his defence so that it can, in a more contemporary way, make proper responsive references for him personally by incorporation to the most current iteration of Mineralogy's defence (the 6FAD) to the CONSOC of the CITIC plaintiffs - the more difficult question is whether I ought to further allow Mr Palmer to run what he himself says is not really any different argument of law concerning the alleged engagement of the FATA, but is for him an argument of discrete emphasis.
By reason of Mr Palmer being allowed to incorporate by reference to his defence the pleaded position of Mineralogy as the corporation of which Mr Palmer is, in effect, the alter ego - Mr Palmer is not prejudiced in terms of the FATA-grounded legal defence arguments being fully aired and determined (if necessary) in this Primary Trial. Mr Palmer is not prejudiced by being confined, in effect, to adopting and for himself reiterating what are the somewhat complex defensive legal arguments Mineralogy seeks to run (as one of its many other defensive arguments) in the closing of the Primary Trial.
I am not deprecating the potential importance of the FATA point for a final determination. Nor am I putting it off for much longer. Mineralogy's closing written trial submissions will be due in terms of their filed written closing materials by noon on Thursday, 14 April 2022. Next week, after Easter Monday, Mineralogy, through senior counsel, will then be closing its case. In that closing phase of the Primary Trial all defensive legal arguments concerning a potential engagement of the FATA can be raised to be determined in the Primary Trial on a final basis.
So, all closing arguments to facilitate a determination of the FATA point on a final basis in the Primary Trial loom as imminent.
In that context, the question again is whether I ought to allow Mr Palmer, in effect, to amend his defence at this late stage beyond just allowing him to adopt the pleaded defence position of Mineralogy - in respects which are seen reflected under par 6 and following of Mr Palmer's minute of sixth proposed defence and counterclaim which accompany his chamber summons of 6 April 2022 (folio 463 - Annexure A thereto). My answer is in the negative.
I would refuse leave, other than to allow Mr Palmer to amend by reference to what is proposed under par 1 in Annexure A of that minute - save for excising erroneous reference to a non-existent par 201A, and excising erroneous references to a non-existent pars 5A to 15AJ, then renumbering subpar 2(c) as 2(b), and inserting the word 'by' between the words 'and' and 'the' in par 5 in the intended reference to the 6FAD of Mineralogy to the CONSOC.
There is no need, in my submission, and indeed no prejudice to Mr Palmer by taking that course because the FATA point is about to be ventilated by Mineralogy in the context of closing arguments made in the Primary Trial.
Moreover, the proposed framing of the FATA argument by Mr Palmer for reasons essentially as were given by senior counsel for the CITIC plaintiffs, as seen in the proposed minute of defence commencing at par 6 by reference to a series of definitions and, thereafter, at pars 7 and 8 through to 15, on my view, lacks coherency.
There are, regrettably, only rhetorical flourishes seen within those pleas. They are unhelpful. They will not assist in a resolution of this important FATA point.
Further, Mr Palmer's contention that the Court ought to consider granting declaratory relief on his proposed counterclaim, in my view, is not sustainable. If, at the end of the day, the Court were to be persuaded, say, that there is merit in the FATA engagement 'Notifiable Action' legal defence point, then the Court's reasons would say that in explicit terms. In all likelihood, there would follow legal repercussions from such reasons by way of issue estoppel from any such final conclusion rendered as between the parties on the point. There would be no utility in such a declaration in the circumstances.
I can see no reason to go further to issue declaratory relief, or indeed, to open up a prospect of a counterclaim seeking declaratory relief. That would be declaratory relief towards whether or not there had been, effectively, a transgression of the FATA, on the basis of breach possibly giving rise to an exposure to penalties were that found.
Considerations arising around those sorts of arguments have not been expressed to date, even by Mineralogy under its pleaded FATA defence. I am strongly disinclined at day 25 of the Primary Trial, to allow this litigation to be potentially diverted away to newly raised arguments by Mr Palmer in person about contended breaches of the FATA, from a perspective of an engagement giving rise to penalties over transgressions, or the like. That would be a new and unnecessary development in terms of what the Primary Trial has been concerned with to date on this legal point.
An alleged potential engagement of the FATA as raised by the defendants, has been live now, essentially, from the commencement of this litigation in the Federal Court of Australia during October 2018 - prior to its cross-vested transfer to this Court in May 2019 and, indeed, under this Court's pre-trial case management of the action leading up to the commencement of the Primary Trial at 21 February 2022.
In all circumstances, I needed to be persuaded there was a legitimate basis for such a late proposed augmentation to the pleadings of Mr Palmer, as a self-represented litigant. I am at the end, not persuaded that the threshold criteria for granting leave to amend at this late stage on the basis of a proper explanation being provided, as was explained by the High Court of Australia in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175, are met.
I am satisfied, however, that there is no prejudice to Mr Palmer in terms of his making legal arguments as he sees fit during his closing arguments in this Primary Trial to the Court on the FATA engagement issue in his defence - as long as those arguments are consistent with the position of Mineralogy - which Mr Palmer is seen to adopt in his proposed sixth further amended defence.
So, save in respect of the limited changes to Mr Palmer's defence I have identified as between pars 1 and 5, I otherwise refuse his application for leave to amend the defence and to plead out a counterclaim.

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