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

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   SINO IRON PTY LTD -v- MINERALOGY PTY LTD [No 2] [2024] WASC 413
CORAM:   LUNDBERG J
HEARD:   1 OCTOBER 2024
DELIVERED          :   7 NOVEMBER 2024
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 - Dispute as to discovery categories - Relevance of categories - Consideration of proportionality - Consideration of overall scope of discovery sought by Mineralogy - Discovery previously given by the plaintiffs in related proceedings - Whether trial may be endangered by an onerous discovery regime - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 1 r 4A, O 1 r 4B, O 26 r 6

Result:

Discovery categories ordered as set out in Attachment B to decision

Category: B

Representation:

Counsel:

First Plaintiff	:	J H Kirkwood SC & T B Maxwell
Second Plaintiff	:	J H Kirkwood SC & T B Maxwell
Third Plaintiff	:	J H Kirkwood SC & T B Maxwell
First Defendant	:	P Dunning KC, H Cooper & D Fawcett
Second Defendant	:	No appearance

Solicitors:

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

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

Goldsmith v Legal Profession Complaints Committee [2021] WASC 217
INPEX Operations Australia Pty Ltd v AIG Australia Ltd [No 3] [2023] WASC 332
Lanco Resources Australia Pty Ltd v Griffin Energy Group Pty Ltd [2016] WASC 322
Maek Pty Ltd v Ibrahim [2022] WASC 285
Palmer v CITIC Ltd [No 12] [2024] WASC 322
Palmer v CITIC Ltd [No 14] [2024] WASC 341
Quenchy Crusta Sales Pty Ltd v Logi-Tech Pty Ltd [2002] SASC 374
Roe v The State of Western Australia [2013] WASC 130
Sino Iron Pty Ltd v Mineralogy Pty Ltd [2024] WASC 242
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 15] [2023] WASC 56

Table of Contents

A. Introduction

B. Relevant principles

C. The conferral process

D. The discovery categories

E. Affidavit evidence

F. Disposition

Overarching matters

The provision of the 2017 MCP Discovery

The scope of the 2023 MCP Discovery

The impact on the listed trial of the 2023 MCP Proceeding

Post Production Period definition

Category AB - Development of MCPs

Category EA - Planning

Categories EB, EC, ED and EG

Category EE - Additional tenure

Category EF - Golder

Category EH - Internal Meetings

Category EI - MEP

Categories EJ, EK and EL

G. Conclusion and orders

ATTACHMENT A Discovery Categories

ATTACHMENT B Orders made on 2 October 2024

LUNDBERG J:

A. Introduction

These reasons concern an interlocutory dispute between the CITIC Parties and Mineralogy in the 2023 MCP Proceeding regarding a number of categories of discovery. I will adopt the same terminology in these reasons as used in the Court's previous decision, concerning the sequencing of this action and the other Cape Preston Proceedings.[1]
[1] Palmer v CITIC Ltd [No 12] [2024] WASC 322 (Lundberg J) (sequencing application). See also Sino Iron Pty Ltd v Mineralogy Pty Ltd [2024] WASC 242 (Cobby J) (stay and strike-out application).
It will be recalled from the earlier decision that the CITIC Parties seek orders in this action compelling Mineralogy to submit to the State of Western Australia a set of mine continuation proposals (the 2023 MCPs) concerning the Sino Iron Project at Cape Preston.[2] Mineralogy resists the relief which is sought. The MCPs are pleaded to comprise or include proposals to extend the mine pit, increase the tailings storage capacity, increase the waste storage capacity, and relocate an existing road.[3]
[2] SOC [60] - [76] and Prayers for Relief A and B.
[3] SOC [62].
It will also be recalled that the same parties were involved in an earlier proceeding in this Court, concerning very similar issues and relief, being the 2017 MCP Proceeding, which was heard by Kenneth Martin J.[4]
[4] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 15] [2023] WASC 56.
The present discovery dispute was heard by the Court on 1 October 2024. At the conclusion of that hearing, I reserved my decision and listed the application for the following day, with a view to then making dispositive orders, with formal reasons to follow thereafter. I adopted that course in order to minimise slippage in the trial timetable. In particular, trial directions had been made which contemplated that discovery would be given by the parties as early as 1 November 2024.[5] The trial itself is listed to commence on 28 April 2025.
[5] Orders dated 11 September 2024.
Immediately prior to the hearing on the afternoon of 2 October 2024, I provided the parties with a table of the Court's rulings, a copy of which is attached to these reasons as Attachment A.[6] At the hearing on 2 October 2024, I made dispositive orders which required the parties to give discovery of various categories of documents, which had been the subject of dispute between the parties. The orders made are attached to these reasons as Attachment B. The orders I made were designed to give effect to a discovery regime necessary for fairly disposing of the proceedings.
[6] As will be evident from the rulings, they have been split into two tables, with Table A relating to the discovery to be given by the CITIC Parties and Table B concerning the discovery to be given by Mineralogy. The rulings also record the reservations made by the parties on relevance issues, in that in relation to some categories the parties have agreed to provide the discovery but without being taken to have conceded relevance.
There are two attachments to the orders themselves, which relate respectively to the categories of discovery to be given by the CITIC Parties and by Mineralogy. The dispute between the parties which is the subject of these reasons relates exclusively to the former set of categories.
I now set out my reasons in support of the above rulings and orders.

B. Relevant principles

The relevant principles which guide the determination of the present dispute were not in dispute and were recently summarised in my decision in Palmer v CITIC Ltd [No 14],[7] in which I drew together principles and observations from several authorities in this jurisdiction.
[7] Palmer v CITIC Ltd [No 14] [2024] WASC 341 [50] - [60].
The principles which should guide the Court in the exercise of the discretionary power to make discovery orders can be found in the decision of the former Chief Justice of this Court, in Roe v State of Western Australia,[8] and the present Chief Justice, in Maek Pty Ltd v Ibrahim.[9] I respectfully endorse their statements of the principles, without repeating them in their entirety.
[8] Roe v The State of Western Australia [2013] WASC 130 [10] - [11] (Martin CJ).
[9] Maek Pty Ltd v Ibrahim [2022] WASC 285 [25] - [27] (Quinlan CJ).
As correctly submitted by the plaintiffs, relevance to the matters in issue in the proceeding is one factor the Court must consider in the exercise of the discretion to order discovery.[10] In the context of the present dispute, this means direct relevance, rather than merely adjectival or indirect relevance.[11]
[10] Maek Pty Ltd v Ibrahim [25].
[11] Lanco Resources Australia Pty Ltd v Griffin Energy Group Pty Ltd [2016] WASC 322 [21] (Kenneth Martin J); and Goldsmith v Legal Profession Complaints Committee [2021] WASC 217 [9] - [10] (Tottle J).
The concept of direct relevance has been said to connote that a document is 'directly in point, excluding as sufficient indirect relevance which may be established through another linking circumstance', and that a document 'will not be directly relevant if, rather than tending to prove an issue on the pleadings, it merely tends to prove something that may be relevant to an issue'.[12]
[12] Lanco Resources [21], citing Doyle CJ's observations in Quenchy Crusta Sales Pty Ltd v Logi-Tech Pty Ltd [2002] SASC 374 [11].
The plaintiff's submissions correctly explain that direct relevance does not include a document which might directly or indirectly lead to a train of inquiry or which might, in some other way, otherwise advance the party's case or damage that of the adversary. This proposition is well supported on the authorities. It is sufficient for present purposes to refer to Kenneth Martin J's summary of those authorities in Lanco Resources.[13]
[13] Lanco Resources [20] - [21].
The following additional matters are to be considered by the Court in approaching the making of discovery orders:[14]
(a)The approach to be adopted to the determination as to whether discovery should be ordered, and in crafting the terms on which that discovery should be ordered, including its scope, requires a consideration of the principles enunciated in O 1 r 4A and O 1 r 4B RSC.[15] Indeed, O 26 r 7(3) RSC expressly states that the court is to have regard to O 1 r 4B RSC.
(b)These rules are focused on the elimination of delays in the progress of matters to a final trial, ensuring that the Court's procedures, and the associated costs to the parties and the State, are proportionate to the value, importance and complexity of the subject matter in dispute, and those procedures, and the associated costs to the parties, are proportionate to the financial position of each party.
(c)These considerations are applicable whether the litigants are individuals, modestly-sized organisations, or well-resourced and experienced corporate litigants, though the application of the rules may need adjustment depending on the circumstances.
(d)The exercise of the discretion to order that a party give discovery is subject to a proportionality assessment. That must be weighed against the likely relevance of the documents and their importance to the resolution of the issues in the litigation, among other matters.
(e)Steps in commercial litigation should not be ordered by the Court merely because there is power to order those steps and, in the context of discovery processes, merely because the documents sought will or would satisfy the test for relevance.
(f)Where the benefit of the step or the workstream relative to the ultimate resolution of the issues is wholly disproportionate, the modern approach to the exercise of curial powers in litigation, particularly as to discovery obligations, is to carefully consider whether restraint is required, and questions of cost and delay must be borne in mind.
(g)The manner in which the criterion of 'proportionality' is to be applied should be carefully considered. Proportionality is not a concept to be assessed in a vacuum. The task or step is to be assessed or weighed against something. Among the things identified in O 1 r 4B RSC is the examination as to whether a particular procedure to be imposed, and the costs of that procedure, are proportionate to the (i) value of the subject matter in dispute; (ii) the importance of the subject matter in dispute; and (iii) the complexity of the subject matter in dispute.[16] Further, the rule directs the Court to give attention to whether the particular procedure and its cost to the parties are proportionate to the 'financial position of each party'.[17]
(h)These considerations must be weighed together with the other matters identified in the Rules, including the efficient disposal of the litigation and the efficient use of the Court's resources.
[14] Which were set out in Palmer v CITIC Ltd [No 14] [55ff].
[15] Maek Pty Ltd v Ibrahim [25].
[16] O 1 r 4B(1)(e) RSC.
[17] O 1 r 4B(1)(f) RSC.

C. The conferral process

This action was filed on 27 November 2023. From as early as February 2024, efforts were made by the legal representatives of the CITIC Parties to engage with Mineralogy's legal representatives through a process of conferral on the discovery issues.[18]
[18] CITIC submissions (PS) [6] and September John Affidavit [8], which is referred to below.
Mineralogy opposed the CITIC Parties' proposal for a conferral regime and this Court initially declined to order conferral given that opposition. That said, there was no obstacle to the parties undertaking the conferral process in the absence of a court-ordered regime. Conferral may be voluntary. It appears Mineralogy further declined to confer when again prompted by the CITIC Parties in early August 2024, and then again in late August 2024.
Not until the conferral regime was ordered on 11 September 2024 was there any active engagement by Mineralogy in the conferral process as to discovery issues.
The earlier failure to confer is disappointing, from the Court's perspective. In large-scale litigation such as this, there is everything to be gained and little to be lost by parties instructing their legal teams to meaningfully engage in conferral processes, with or without a court-ordered regime. In the context of the current disputes as to discovery categories, it is not the case that Mineralogy is now to be punished or penalised in some way for the lack of early conferral; I did not apprehend the CITIC Parties to suggest that should be done. Nonetheless, there are impacts on the litigation from a failure to confer in a timely way, which I will briefly explain.
First, the parties have, through conferral in the two weeks prior to the hearing managed to agree a range of categories, but it may be inferred that had the process of conferral commenced in February 2024, when overtures to this effect were made by the CITIC Parties, the areas of dispute could have been narrowed.
Second, the delayed conferral engagement on the part of Mineralogy has meant that the document collection and review process undertaken by the CITIC Parties, commencing in January 2024, has proceeded wholly in the absence of any input from Mineralogy and its advisers. The introduction of further categories to the discovery process, being the Mineralogy-drafted categories, whilst obviously not precluded, would necessitate a re-run of the process undertaken earlier this year, in a manner likely to contribute to greater costs and inefficiency.
I refer to, and place weight upon, the matters deposed to in the September John Affidavit at [23], [24], and [32] to [35]. This is a consideration to be borne in mind in the Court's assessment of the competing positions of the parties. I will return to this point later in these reasons.
Third, the delayed conferral also undercuts the criticisms which have been levelled at the CITIC Parties' discovery process. The observation made on behalf of Mineralogy that the CITIC Parties' undertook this process on a 'self-informed'[19] basis rings somewhat hollow, in my respectful view.
[19] ts 264.
To be clear, the manner in which the conferral process has played out does not now prevent this Court from exercising its discretion to expand the scope of the discovery categories as proposed by Mineralogy. The important point to be made, in my opinion, is that the course of these events is relevant to the exercise of the discretion.
Returning to the procedural history, on 11 September 2024, the Court ordered that the primary trial of the present action (that is, as to liability) be set to commence on 28 April 2025, and made directions as to a regime for conferral between the parties concerning discovery.[20]
[20] Orders of the Court made 11 September 2024 (pars 8 - 11).
On 20 September 2024, the parties provided the Court with an extensive and detailed memorandum summarising the outcome of the conferral process (Discovery Memorandum). The Discovery Memorandum is 23 pages in length, and sets out in schedule form the competing positions of the parties. The parties had been able to agree the terms of several categories of discovery through this process of conferral, including some of the categories which apply to the CITIC Parties and all of the categories which apply to Mineralogy. Thus the disputed categories are confined to documents which Mineralogy contends should be discovered by the CITIC Parties.
Directions were made to set the issues down for hearing on 1 October 2024. The parties filed submissions and affidavit material in support of their respective positions. The parties' submissions were both filed on 27 September 2024.
Finally, I note the State of Western Australia is a party to this action but took no active part in the discovery application.

D. The discovery categories

The scope of the dispute between the parties is set out in the Discovery Memorandum to which I have earlier referred. In essence, the parties are in dispute as to whether particular categories of discovery captured documents which were relevant to matters in issue in the proceedings and, in any event, whether those categories should be ordered in the exercise of the Court's discretion, having regard to the timely and cost-effective disposal of the litigation.
The parties were able to agree a number of the discovery categories, but remained in dispute on several categories which sought discovery of material which the CITIC Parties asserted was either not relevant on the pleadings, involved fishing, or was not proportionate or workable.[21]
[21] PS [12].
Mineralogy contended the categories extended to documentary material which will have forensic utility, and fairness dictated that Mineralogy should be provided with this material to be able to scrutinise the issues surrounding the development and operation of the Sino Iron Project and present their defence of the 2023 MCP Proceeding.[22]
[22] Mineralogy submissions (DS) [34] and Schedule.
The categories of discovery drafted by the parties, both agreed and in dispute, are set out in Attachment A to these reasons.
To put the list of categories in context, I note that categories A, B, C, D, E, F, G and H were proposed by the CITIC Parties, and those categories had largely been agreed by the parties.
Categories AB, AC and EA to EM were proposed by the Mineralogy Parties. Of these categories, only AC and EM had been agreed. Thus, the categories which remained in dispute were those proposed by the Mineralogy Parties, seeking additional discovery from the CITIC Parties.
It is largely common ground that, other than documents previously discovered by the CITIC Parties in earlier litigation, the Mineralogy Parties do not hold documents relating to the operation of the Sino Iron Project and, further, Mineralogy appears to have limited visibility of the inner workings of the project. In contrast, it is the CITIC Parties who are the principal repository of the documentary material, being the operator of the project. Accordingly, the bulk of the discovery burden in this action will fall upon the CITIC Parties, which will be readily apparent from the categories drafted by the parties.
In a broad sense, the categories of documents which remain in dispute relate to the following matters:[23]
(a)documents recording or referring to the consideration by the CITIC Parties of, the preparation and submission of, and any interaction with the State in relation to, any proposal for submission under the applicable State Agreement including the 2023 MCPs (Category AB);
(b)documents recording or referring to the CITIC Parties' consideration of the expansion of the mine pit or waste storage capacity for the purposes of the Sino Iron Project (Category EA);
(c)documents relating to past productivity rates with the mining and processing operations (Category EB), asserted substandard performance (Category EC), asserted adverse issues connected with the tailings storage facility (Category ED), the consideration by the CITIC Parties of additional tenure (Category EE), the consideration by the CITIC Parties of Golders' proposal in connection with the storing of tailings (Category EF), and construction issues in connection with the processing plant (Category EG);
(d)documents recording or referring to minutes of meetings or budgets of, or for, various committees and groups within the CITIC Parties insofar as they relate to the expansion of the mine pit or waste storage capacity, the Mineralogy Expansion Proposal (MEP), or the submission of proposals (Category EH);
(e)documents recording or referring to the CITIC Parties' consideration of the MEP and related matters (Category EI); and
(e)documents recording or referring to consideration by the CITIC Parties of any measure to enable the full exercise of the parties' rights or the full implementation of the project, as to future phases or stages of the project, and as to consideration by the CITIC Parties of the relationship between the 2017 MCPs and the 2023 MCPs (Categories EJ, EK and EL).
[23] The complete terms of the categories are to be found in Attachment A.

There are particular periods of time which are relevant to a consideration of these categories. One of those periods is defined as the Post Production Period, which covers the period from 30 June 2021 until 27 November 2023. This is the period from the conclusion of the production of discovery in the 2017 MCP Proceedings (which was 30 June 2021) until the present action was filed.

E. Affidavit evidence

I received, without objection, the affidavit of David William John sworn 27 September 2024, filed by the CITIC Parties (September John Affidavit).[24]
[24] Senior counsel for the CITIC Parties confirmed that parts of the September John Affidavit relating to Category EN were no longer relied upon and were therefore not read in support of the orders sought. I refer to [36], [37] and [38] of the affidavit and Attachments DWJ-6 and DWJ-7: ts 219 - 220. Similarly, [35] and [36] of the CITIC Parties' submissions were no longer relied upon given the position adopted by Mineralogy.
Mr John is an experienced litigation partner with the law firm which represents the CITIC Parties. Mr John deposed to the steps required to be undertaken in conducting a large discovery exercise, the course of the correspondence between the parties as to the provision of discovery in this action, the plaintiffs' own discovery preparation, and the difficulties which would be associated with the provision of the disputed categories. As I explain later in these reasons, in determining the dispute between the parties I place significant weight on the matters to which Mr John deposed in his affidavit.
The September John Affidavit also refers to an earlier affidavit sworn by Mr John in these proceedings, dated 15 March 2024 (March John Affidavit). It is unnecessary for the Court to consider the March John Affidavit given the matters referred to in the September John Affidavit at [8].
Further, I received, again without objection, the affidavit of Tracey Lyn Robinson sworn 27 September 2024 (Robinson Affidavit), noting that Ms Robinson is a partner of the law firm which represents Mineralogy. Within her affidavit, Ms Robinson attaches or refers to a range of documents (the affidavit is over 500 pages in length) which are relied upon by Mineralogy in support of the discovery orders it seeks.
In addition to the documents attached to the affidavit, a large number of documents were provided by Robinson Nielsen to the Court electronically in support of Mineralogy's position on the disputed categories. Those documents were not expressly relied upon by the first defendant in the course of the hearing.
Finally, I enquired of the parties ahead of the hearing whether any party objected to the Court having regard to the consolidated version of the State Agreement found in Attachment DWJ-18 to the affidavit of Mr John sworn 19 February 2024 (February John Affidavit). I was informed no party objected to that course.

F. Disposition

Overarching matters

In considering the competing positions of the parties as to the disputed categories, I was particularly drawn to the significance of three overarching matters, which I will now set out. These overarching matters impact each of the disputed categories in varying ways and to particular degrees and, in my view, should be given considerable weight in assessing the scope of the disputed categories and the disputed definitions.
The Court's assessment of the categories in dispute will, naturally enough, turn first to an examination of the relevance of the documents sought to be captured by the category. As explained earlier in these reasons, that is not the only criterion to examine. As set out below, broader considerations as to proportionality and delays in litigation have particular significance to the determination of the discovery categories in the present action.

The provision of the 2017 MCP Discovery

A striking feature of the current action is that it raises for determination a significant number of similar issues which were the subject of the 2017 MCP Proceeding heard and determined by Kenneth Martin J. As one might reasonably expect, the discovery provided by the parties in the 2017 MCP Proceeding is likely to contain documents which are also relevant to the issues raised in the present action. Indeed, it would be remarkable if this were not the case.
During the course of the 2017 MCP Proceeding, extensive discovery was given by the parties, by reference to agreed categories as well as categories which were ordered by the Court. Mr John deposes that the CITIC Parties produced for inspection in the 2017 MCP Proceeding in excess of 98,000 unique documents, by way of discovery.[25]
[25] September John Affidavit [8].
Mr John also deposes that the discovery in the 2017 MCP Proceeding was provided up to 30 June 2021. That was the date of the last collection of documents for the purpose of the discovery in the 2017 MCP Proceeding.[26]
[26] September John Affidavit [8].
The list of discovery categories used in the 2017 MCP Proceeding was produced to the Court as an attachment to the September John Affidavit.[27] Having reviewed the list, the following observations can be made:
(a)The list consists of two tables, one pertaining to discovery to be given by the CITIC parties and the other identifying categories of documents to be given by Mineralogy. Both tables are extensive.
(b)The table concerning the discovery to be given by the CITIC Parties employs three particular definitions as to time which should be noted: the Initial Approvals Period, the MEP Period, and the MCPs Period.
(c)The Initial Approvals Period is from 1 September 2005 to 6 January 2010, described as the period from the beginning of the negotiations between the CITIC Parties and the Mineralogy Parties in relation to the Project Agreements, to the date on which the relevant Minister approved the specific proposals.
(d)The MEP Period is defined as the period beyond the Initial Approvals during which the Mineralogy Parties are said to have continued efforts to seek approval of the Mineralogy Expansion Proposal (the MEP) under the Environmental Protection Act 1986 (WA). The MEP is described as having been submitted in or about June and July 2009 and that efforts to seek approval of the MEP continued until at least December 2011.
(e)The MCPs Period is defined to mean from 9 December 2014 to 21 May 2020, being the period 2 years prior to the date on which the 2016 MCPs were provided to Mineralogy on 9 December 2016.
[27] September John Affidavit, Attachment DWJ-1.
Mr John deposes, and his evidence is unchallenged, that:[28]
(a)in early 2024, by way of discovery in the current action, the CITIC Parties again provided to Mineralogy the documents which constitute the 2017 MCP Discovery;
(b)given the provision of the 2017 MCP Discovery, Mr John contemplated that the plaintiffs' discovery in the 2023 MCP Proceeding would be by way of 'top up', for any additional documents (including those containing technical information) that have come into existence since 30 June 2021, in categories concerning: (i) the relevant functional components sought in the 2023 MCPs; and (ii) the constraints facing the Sino Iron Project;
(c)Mr John also proposed to give discovery in categories relating to the matters which were not the subject of any discovery orders in the 2017 MCP Proceeding, namely (i) documents relating to the plaintiffs' preparation of the 2023 MCPs; and (ii) documents relating to the alleged breaches of contract pleaded in paragraph [1(eA)] of the Amended Defence;
(d)in anticipation of discovery orders being made in the present proceedings, Mr John deposes that the CITIC Parties 'undertook a fairly wide ranging first collection of potentially relevant documents from relevant custodians at the plaintiffs, using appropriate key word searches'; and
(e)as to the documents collected through this process, Mr John deposes that they have been, and continue to be, reviewed for relevance, privilege and confidentiality, to enable the CITIC Parties 'to give discovery at the earliest possible time, once the Court made discovery orders'.
[28] September John Affidavit [8].
The parties have agreed a category of discovery in this action by which the discovery produced in the 2017 MCP Proceeding will be exchanged (namely, Category A). As earlier noted, that category is not disputed.
It is thus evident that, in preparing to give timely discovery in the context of a proceeding to which a degree of expedition is attached (a point to which I will return below), the CITIC parties had already 'undertaken a wide-ranging document collection' process, and had begun the documentary review process at an early juncture.[29] The decision to undertake a documentary review process at an early point in these proceedings is to be commended by the Court, not criticised.
[29] PS [10].
As I have earlier indicated, the plaintiffs' process does not establish an unshakeable set of boundaries which will control the discovery process (and nor do the CITIC Parties contend that is the case). That would be unfair to the defendant parties. Indeed, the documentary review process was commenced before the defence was filed and the terms of the defence necessarily impact the scope of the discovery.
The salient point which I wish to emphasise is that, in my view, a consideration of the scope of the disputed categories must be undertaken with a firm eye on the reality that a large volume of discovery has already been provided by the CITIC Parties to Mineralogy, being the 2017 MCP Discovery. This is not a case in which the parties are starting the discovery process from scratch. As I observed in the course of deciding a discovery application in another large-scale piece of commercial litigation, the extent of the discovery needs to be assessed holistically, and each category in dispute should not be analysed with blinkers on, ignoring the overall extent of the discovery which is sought.[30]

The scope of the 2023 MCP Discovery

[30] INPEX Operations Australia Pty Ltd v AIG Australia Ltd [No 3] [2023] WASC 332 [48].

The second overarching matter of significance is the scope and scale of the discovery required in the 2023 MCP Proceeding. In general terms, the scope of the discovery needs to be appropriately tailored to ensure the parties have a proper opportunity to present their cases at trial, but also to ensure the trial dates can be achieved and unnecessary delays are avoided.
The primary steps which have been programmed in order to ensure the necessary litigation steps have been completed by trial include the exchanging of discovery by 1 November 2024 and a requirement on the part of the plaintiffs to file and serve their lay witness statements and outlines by 18 November 2024, with Mineralogy to file and serve its lay witness statements and outlines by 20 January 2025.
In these circumstances, the potential scale of the discovery process which would be required should the Court order that discovery be given of the Mineralogy proposed categories must be carefully considered, and its effect on the ability of the parties to achieve the Court timetable closely assessed. In this regard, I consider it is appropriate to give weight to the matters described below, to which Mr John deposes in his affidavit, in my assessment of the parties' competing positions.
First, several of the categories of discovery proposed by Mineralogy were drafted in somewhat vague and overly broad terms, which Mr John explained as giving rise to discovery categories which were not 'practical or workable'. I accept that characterisation.
I accept that vaguely drafted categories are likely to negatively impact the efficiency of a discovery process. By this I mean it would impair a party's ability to conduct appropriate scoping, collection and review processes, so as to identify potentially responsive documents.
Some examples of the lack of clarity in the categories will suffice:
(a)Category EB is drafted to capture documents recording or referring to 'adverse issues' experienced in connection with the 'productivity of mining and processing operations'.
(b)Category ED is similarly drafted to capture documents recording or referring to 'adverse issues' in connection with the planning, design, construction and use of the tailing storage facility. The formulation of a category by reference to 'adverse issues' and matters connected with 'productivity' (such as in Category EB and Category ED) is vague and likely, in my view, to contribute to a scoping, collection and review process which is inefficient and causative of delay.
(c)Category EC is drafted to capture documents recording or referring to 'substandard performance' of mining and processing operations. The term 'substandard performance' is not a term of art, but rather a vague and unclear concept likely to mean different things to different people. The formulation of a category by reference to a criteria of 'substandard performance' is excessively vague and likely, in my view, to also contribute to a scoping, collection and review process which is inefficient and causative of delay.
Other examples can be seen in the language employed in both Category EC and in Category EG.
To put the magnitude of the task into perspective, and taking one of the phrases identified above, Mr John instructed a member of his team to undertake a search of the 2017 MCP Discovery pool using the term 'productivity'. Mr John has deposed, on information and belief, that:[31]
(a)the search term 'productivity' returned over 34,000 unique document hits; and
(b)the search term 'productiv*' returned over 43,000 unique document hits (I understand this searches for all words beginning with 'productiv', such as 'productive', 'productivity' and 'productiveness').
[31] September John Affidavit [35].
Mr John also instructed a member of his team to repeat this process using the search term 'processing', which is found in Category EB and Category EC. That search returned over 200,000 unique documents, when using the term 'processing', and over 397,000 unique documents when a search for 'process*' was undertaken.
Another example of an overly broad term employed in the disputed categories can be found in Category EM. That category is drafted to capture, in part, 'any Mine Plan'. The term 'Mine Plan' is not defined or limited in any way. Mr John has deposed that a request for documents so described would 'capture a huge volume of documents'.[32] Given the nature of the plaintiffs' business, as the operator of a large-scale mine over many years, I accept this evidence.
[32] September John Affidavit [36].
Second, the period over which the discovery categories stretch needs to be properly assessed. Category A and Category AA, which are not disputed, and concern the 2017 MCP Discovery, stretch over the period from 1 January 2007 to 30 June 2021, some 14 years. Several of the disputed categories pressed by Mineralogy are drafted to extend back to 1 January 2012 through until the present, being a 12 year period. For example, see Category EA, Category EB, Category EC and Category EH.
The size and expanse of the disputed categories is a matter to consider and weigh in assessing the appropriateness of the categories and the proportionality of the overall discovery exercise.
Third, I accept, to a large extent, the concerns expressed by Mr John in his affidavit as to the impact on the discovery process (as to scoping and review in particular) arising from the breadth of the disputed categories, the manner in which the categories have been drafted, the period of time over which the categories stretch, and the undoubted scale of the Sino Iron Project itself. I refer in this regard to [28] to [36] of the September John Affidavit, and emphasise the following matters in particular:
(a)I accept the legal team for the CITIC Parties would need to 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. As I have earlier noted, the failure on the part of Mineralogy to instruct its legal advisers to engage with the CITIC Parties and its legal advisers at an early stage has, more or less, produced an environment which would require two discovery processes to be undertaken by the plaintiffs.
(b)I also accept the legal team for the CITIC Parties would need to conduct additional scoping, collection and processing of data, back to around 1 January 2010, in order to collect additional documents that may be potentially responsive to the disputed categories, but which were not previously captured by the legal team for the purposes of assembling the 2017 MCP Discovery.
(c) I also accept the legal team for the CITIC Parties would need to undertake additional scoping, collection and processing of data in order to supplement the initial document collection process which was conducted in January 2024, so as to capture documents potentially responsive to the disputed categories which came into existence after June 2021.
(d)Finally, I accept the legal team for the CITIC Parties would then to review the documents for privilege and confidentiality.

The impact on the listed trial of the 2023 MCP Proceeding

The third overarching matter of significance is the impact that a protracted discovery process may have on the trial and ultimately the resolution of the proceeding (noting the trial commences in late April 2025).
I have, in my previous reasons, echoed the conclusion reached by his Honour Cobby J as to the urgency of this proceeding. I continue to proceed on the basis that the proceeding is reasonably urgent and that there is a real public interest in the ongoing dispute between the parties regarding the submission of new mine continuation plans being resolved as soon as possible.[33]
[33] Palmer v CITIC Ltd [No 12] [2024] WASC 322 (Sequencing applications).
Mr John has deposed that it is 'difficult to predict' the additional time required to undertake the various steps which I have outlined above.[34] I accept it is difficult to predict such matters. This is not a precise science. Experience and judgment are called for in assessing the magnitude of a discovery task, especially one involving a large scale mining project which remains operational. Ultimately, Mr John's assessment is that:[35]
…my best estimate is that even if a substantial team is allocated to the process, it is likely to take at least 3 months and more likely, in excess of 6 months to do so. By way of comparison, the discovery process in the 2017 MCP Proceedings commenced by way of scoping and collection of documents in mid 2019 and the last substantial production of documents occurred in late 2021.
[34] September John Affidavit [33].
[35] September John Affidavit [33].
There is much to be done by the parties and their legal teams over the next 7 months. The Court must remain mindful of the goal expressed in O 1 r 4A RSC, in the following terms:
The practice, procedure and interlocutory processes of the Court shall have as their goal the elimination of any lapse of time from the date of initiation of proceedings to their final determination beyond that reasonably required for interlocutory activities essential to the fair and just determination of the issues bona fide in contention between the parties and the preparation of the case for trial.
Given the limited time left until the trial of this matter is due to commence, and the other interlocutory steps remaining to be completed, any potential delays in the discovery process are likely to have acute consequences to the efficient running of this litigation. For these reasons, I formed the view that these issues should be given weight in assessing the scope of the discovery categories.

The overarching matters I have identified above at [42] to [70] have application across each of the disputed categories and definitions. They are pervasive considerations which I have taken into account in considering whether to refuse certain of the categories, or whether to narrow the category in a particular way.
I will now turn to examine the terms of each of the disputed discovery categories and definitions.

Post Production Period definition

This definition has been employed within the categories to identify the period following the last date of provision of the 2017 MCP Discovery, which was 30 June 2021, until the commencement of the present action, being 27 November 2023. The definition has been used to confine the limit of certain categories, such as Category AB, Category C, Category D, and Category EM.
The definition is explicable given the provision by way of discovery in the present action of the 2017 MCP Discovery, as explained earlier in these reasons.
There was no disagreement between the parties as to the start date for the definition. The dispute was in substance as to the end date, and whether the date of filing of this action was an appropriate cut-off point. I formed the view that the definition was appropriate, and the cut-off date of 27 November 2023 was to be preferred. There were two primary reasons for my conclusion. These reasons are not based on the Eshelby point referred to by Mineralogy in its submissions, or the continuing obligation to give discovery,[36] neither of which formed part of the plaintiffs' submissions on this issue, as I apprehended them.
[36] DS [11].
First, I consider it is highly unlikely that documents created or generated after the commencement of this action would be directly relevant to the matters in issue in the proceeding. The principal issues for determination at the trial are focused on the events which have preceded the commencement of the action, including the constraints on the Sino Iron Project at the time the plaintiffs provided the 2023 MCPs to Mineralogy for its consideration (which was in August 2023), whether the proposals in the 2023 MCPs were justified, the time frame within which the MCPs were to be considered by Mineralogy, and whether Mineralogy was obliged to submit the 2023 MCPs.
For my part, I have great difficulty in accepting that documents which are created after the proceeding were commenced could rationally bear on whether Mineralogy was in breach of its contractual obligations to submit the MCPs by the time the proceedings were in fact commenced. In the result, I was not satisfied the first defendant had properly demonstrated that the time line for discovery should extend beyond the date on which the proceedings were filed.
Second, there is a need, given the time sensitivity of the trial directions and the potential scale of the discovery process, to ensure there is a high degree of certainty associated with the formulation of these categories. The temporal scope of the categories should be clear and certain.
The parties and their advisers should know what the extent of their discovery obligations are, which will assist them to identify, capture, review and produce the necessary documents in a timely way. Modifying the definition of Post Production Period to push into the period after 27 November 2023, during the course of the litigation process itself, is likely to create an inefficient and unduly burdensome discovery process, and unlikely to capture documents of assistance to the resolution of the principal matters in issue. In this respect, I accept the force of the submission advanced by senior counsel for the CITIC Parties that:[37]
It is inevitable that in a live operating project, such as the Sino Iron Project, new documents will be popping into existence every day concerning the mine pit, waste rock and tailings, and it is simply not possible to have a rolling collection review process all the way to trial.
[37] ts 224 - 226.
I accordingly ruled in favour of the definition as drafted by the CITIC Parties, as set out in Attachment A.

Category AB - Development of MCPs

Category AB concerns documents recording or referring to the consideration by the CITIC Parties of, the preparation and submission of, and any interaction with the State in relation to, any proposal for submission under the applicable State Agreement including the 2023 MCPs.
The category was proposed by Mineralogy. The CITIC Parties did not concede the relevance of the documents in the category, and proposed a modification to narrow its scope. I considered the narrowing of the category was appropriate in order to:
(a) confine it to the Post Production Period (as explained above), rather than the 10 year period proposed by Mineralogy; and
(b)also confine the reach of the category to the 2023 MCPs, rather than any proposal for submission under the State Agreement.
The narrowing of the category in this latter sense is required to ensure the discovery is confined to material which is directly relevant, as earlier explained. I accept in this regard that the allegations within the pleaded cases concern the justification for the 2023 MCPs, not other unspecified hypothetical proposals the existence of which is unclear,[38] and that the iterative process by which the MCP was developed, which Mineralogy wishes to interrogate,[39] falls outside the pleaded cases. The category should be described by reference to the 2023 MCPs.
[38] ts 231 (submissions by Mr Kirkwood SC).
[39] ts 270 - 271 (submissions by Mr Dunning KC).
As the category was narrowed, the definition of MCPs Period became redundant and was excised from the discovery categories.

Category EA - Planning

Category EA concerns documents recording or referring to the CITIC Parties' consideration of the expansion of the mine pit or waste storage capacity for the purposes of the project.
The category was proposed by Mineralogy. The CITIC Parties did not concede the relevance of the documents in the category, and proposed a modification to narrow its scope. I considered the narrowing of the category was appropriate, consistent with the view I have adopted above in relation to the Post Production Period definition.

Categories EB, EC, ED and EG

These four categories were proposed by Mineralogy, seeking a broad range of documents dating back to 1 January 2012. The categories were opposed by the CITIC parties. I refused each of them.
Category EB concerns documents recording or referring to adverse issues experienced in connection with the productivity of mining and proceeding operations. Category EC seeks documents recording or referring to substandard performance of mining and proceeding operations, including heavy mobile equipment operations, mine planning and staff turnover. Category ED seeks documents recording or referring to adverse issues in connection with the planning, design, construction and use of the TSF. Finally, Category EG seeks documents recording or referring to construction issues in connection with the processing plant.
I have already referred to the lack of clarity and vagueness in the drafting of these categories, and the difficulties to which that will give rise. It must also be recognised that Categories C, D and E,[40] which have been agreed, will extend to capture documents relating to:
(a)mine pit constraints;
(b)the tailings requirements and constraints with respect to tailings disposal; and
(c)waste rock storage requirements.
[40] And also Category A, being the 2017 MCP Discovery.
These matters point against the exercise of the discretion to order Categories EB, EC, ED and EG, which cover a lengthy period, even if those categories might be said to capture documents which are directly relevant.
As it happens, in my view, these additional categories suffer from a relevance deficiency. That is, I do not accept that the documents sought to be captured by these wide categories are directly relevant to the matters which are pleaded at [40] of the Amended Defence.
In that paragraph of the pleading, the first defendant asserts that the plaintiffs failed to develop the mine pit, the TSF and waste rock landforms efficiently, and in accordance with cl 16 of the MRLSAs.[41] Further, it is alleged that if the mine pit, the TSF and waste rock landforms are constrained as alleged by the CITIC Parties, then this has been caused by the plaintiffs' breaches of cl 16.[42]
[41] Amended Defence [40(a)] and see the further allegations at (i) to (iv) thereunder.
[42] Amended Defence [40(b)].
The pleading does not identify matters concerning 'adverse issues' connected with productivity of mining and processing operations, or connected with the planning, design etc of the TSF, much less 'substandard performance' in relation to the mining and processing operations. Nor are there references to 'construction issues' of the kind identified in Category EG. The Court is thus confronted by a pleading which does not directly refer to these particular matters at all.
In advancing the arguments as to relevance, senior counsel for the first defendant placed considerable reliance on the transcript of the evidence of Mr Robert Goodwin given during the 2017 MCP Proceeding. The transcript, it was submitted, provides a basis for demonstrating the relevance of Category EB, and various other disputed categories.
Senior counsel highlighted that the evidence of Mr Goodwin is in fact particularised in the pleadings, specifically at [40(a)(iv)] of the Amended Defence. The relevant parts of the pleading are as follows:[43]
[43] The underlining records the amendments to the defence made on 11 March 2024.
(a)Sino Iron and Korean Steel have failed to develop the mine pit, tailings storage facility and waste rock landforms efficiently and in accordance with clause 16 of the MRSLAs, in that:
(i) if the mine pit, tailings storage facility and waste rock landforms are constrained in the manner alleged by the plaintiffs, which is denied, such constraints have, or ought to have, been known to Sino Iron and Korean Steel from at or around the commencement of the Sino Iron Project;
(ii) despite that actual or constructive knowledge, Sino Iron and Korean Steel failed to propose the measures proposed in the 2023 MCPs until 18 August 2023;
…
(iv)Sino Iron and Korean Steel failed from in or about 2012 onwards to plan for the expansion of the mine pit and waste storage capacity to remain adequate for the rate of production and life of mine pursued by them for the purposes of the Sino Iron Project;
Particulars
In support of sub-paragraph (iv), the first defendant refers to and relies upon:
(a) the Second Sino Iron Concentrate Proposal and Second Korean Steel Concentrate Proposal, each of which relevantly provided: 'The above mine plan will provide sufficient ore for approximately 5 years during which time additional areas will be sought for the placement of tailings and waste rock as well as extension of the pit area and volume' (section 3.4);
(b) the evidence of Mr Robert Goodwin given on behalf of the plaintiffs to this Honourable Court on 21-22 March 2022 concerning the planning failures in relation to the Sino Iron Project;
(c) the minutes of the Fulcrum Group meeting on 9 March 2012, which relevantly provided: 'Expansion proposal – on hold… Use as negotiation leverage';
(d) the minutes of the Fulcrum Group meeting on 16 November 2012, which relevantly provided: 'Expansion proposal: Decision to be made on whether to separate CPM's application from MIN's [referring to the Mineralogy Expansion Proposal circa 2009-2010] and if so, how to go about it';
(e) the minutes of the Fulcrum Group meeting on 25 August 2015, which relevantly provided: 'Finalising proposed TSF footprint…Preliminary work commenced on SIP Expansion proposal';
(f) the minutes of the Fulcrum Group meeting on 3 November 2015, which relevantly provided: 'Sino Iron Expansion (expansion for Pit, WRD, TSF & Port stockyard with option for increased throughput) approvals – submission June 2016… Tenure access and appropriate conditions.'
Further particulars may be provided upon completion of interlocutory processes. (emphasis added)
The evidence of Mr Goodwin is said to provide justification for the following categories, at least:
(a)Category EB;[44]
(b)Category EC;[45]
(c)Category ED;[46]
(d)Category EE;[47]
(e)Category EF;[48] and
(f)Category EG;[49]
[44] Trial ts 2127, referred to by Senior Counsel at ts 276, 279.
[45] Trial ts 2127-2130, referred to by Senior Counsel at ts 277-278.
[46] Trial ts 2126, referred to by Senior Counsel at ts 278.
[47] Trial ts 2172-2173, referred to by Senior Counsel at ts 278-279, 280.
[48] Trial ts 2168-2169, referred to by Senior Counsel at ts 281.
[49] Trial ts 2174-2175, referred to by Senior Counsel at ts 279.
In my view, it is not correct to say that any evidence given by Mr Goodwin at the trial of the earlier matter before Kenneth Martin J in 2022, as to any operational issue, encountered at any time, of any nature, will be able to be relied on by Mineralogy in prosecuting the case it mounts under [40] of the Amended Defence. That would involve an overly broad approach to the characterisation of the scope of the pleadings, and to the determination of relevance for the purposes of these proceedings. It would treat almost every matter identified in the transcript of Mr Goodwin's evidence (which was given over the course of two days, which runs for around 150 pages, and during the course of which he was taken to numerous documents) as being relevant. I cannot accept that is a correct approach to adopt in assessing the direct relevance of these disputed discovery categories. It would cast the 'discovery net' very wide indeed.
In my respectful view, the characterisation of Categories EB, EC, ED and EG by the plaintiffs as little more than 'fishing' is apt. In any event, to the extent it might be concluded these categories extend to capture some documents of relevance, the overarching considerations justify an exercise of the discretion to decline to order these categories, given the overlap with other agreed categories, and the obvious breadth of the categories, when combined with the vague and unclear drafting.

Category EE - Additional tenure

This category concerns documents recording or referring to the plaintiffs' consideration of acquiring access to, or use of, areas in addition to the Site Lease Area. The category was proposed by Mineralogy and opposed by the plaintiffs.
I refused the category on the basis I was not satisfied the documents sought to be captured by the category were directly relevant. Indeed, the Amended Defence points, in terms, against a conclusion that the category seeks relevant documents. The pleading contains an allegation that:[50]
Sino Iron and Korean Steel have never communicated a position to Mineralogy expressing a willingness to negotiate for commercial terms, and have communicated a position that they are 'not willing to pay further money', for the additional tenure areas sought by them.
[50] Amended Defence, [40(a)(iii)].
The plaintiffs do not allege that they did communicate any such willingness.[51] In these circumstances, the category as drafted focuses on a false issue, on my assessment.

Category EF - Golder

[51] PS [25].

This category seeks documents recording or relating to the plaintiffs' consideration of Golder's proposals in connection with the storage of tailings. The category was proposed by Mineralogy and opposed by the plaintiffs.
As already noted, the first defendant relies on the evidence of Mr Goodwin to sustain this category. I accept the Amended Defence refers to the evidence of Mr Goodwin given at the trial of the 2017 MCP Proceeding before Kenneth Martin J. I refer in this regard to particular (b) to [40(a)(iv)] of the Amended Defence, and the trial transcript.[52] I was taken to the transcript by senior counsel for the first defendant in relation to this category, and in relation to other disputed categories, as I have already noted above. The evidence of Mr Goodwin confirms the existence of the Golder report or reports. But that does not seem to be in dispute on this application. The evidence of Mr Goodwin also reveals a series of criticisms held by Mr Goodwin in relation to those reports.
[52] Trial ts 2168.
In my view, the transcript of Mr Goodwin's evidence does not render this category unassailable. Indeed, it is apparent from the transcript that the first defendant must already have access to a range of documents concerning the Golder reports and the plaintiffs' consideration of the reports. It is also apparent that the proposed category overlaps with:
(a)category D - in relation to the Post Production Period (being an agreed category); and
(b)categories OO(iii), (iv), (x) and (xii) from the 2017 MCP Discovery - in relation to the period prior to the Post Production Period.
In this regard, I accept the submission of the plaintiffs as to the likely degree of overlap between this category and the other agreed categories.[53]
[53] PS [26].
The plaintiff will, through these other categories, be obliged to discover a large number of documents concerning the TSF and the tailings disposal requirements. I do not consider it appropriate, and indeed it would be disproportionate, to exercise the discretion to order an additional category which would appear to overlap with the other agreed categories. I accordingly refused the category.

Category EH - Internal Meetings

Category EH concerns documents recording or referring to minutes of meetings or budgets of, or for, various committees and groups within the CITIC Parties insofar as they relate to the expansion of the mine pit or waste storage capacity, the MEP, or the submission of proposals. The materials relied upon by the first defendant included a number of examples of minutes of internal meetings held by the CITIC Parties, dating back to 2011 and stretching through to 2020.[54]
[54] Robinson Affidavit [19] - [25].
I accept that minutes of the various groups and committees are likely to be directly relevant to matters in issue in the proceedings, contrary to the submission of the CITIC Parties.[55] I therefore allowed the category, albeit on a narrowed basis. I considered it appropriate to confine the category to the period ending on 27 November 2023, when the proceedings were filed. I also narrowed the subject matter categories from the three drafted by Mineralogy to one, being 'the expansion of the mine pit or waste storage capacity for the purposes of the Sino Iron Project'.
[55] PS [27] - [28].
Category (viii) relates to the plaintiffs' consideration of the MEP (which, it will be recalled is the Mineralogy Expansion Proposal). To some extent, this category overlaps with Category EI. Overlap should be avoided where possible. As explained below, I ruled that Category EI should be allowed in a narrowed form, and I excised category (viii) from Category EH accordingly.
Category (ix) related to the submission of proposals under the State Agreements or other regulatory approvals. These matters are not relevant to the matters in issue in these proceedings and should not be the subject of the discovery regime.
I accordingly excised category (viii) and category (ix) from Category EH, and ordered the balance of the category be included in the discovery regime between the parties.

Category EI - MEP

Category EI concerns documents recording or referring to the CITIC Parties' consideration of the MEP and related matters.
I ruled that a narrowed form of the category should be allowed.
I must say, it is not easy to understand how the plaintiffs' consideration of the MEP, will be of direct relevance to the matters in issue in the action. Indeed, the plaintiffs say this category is irrelevant and fishing.

Ultimately, although not with much conviction on my part, I accepted the first defendant's submission that there is a sufficient link between the plaintiffs' consideration of the MEP and the project constraints which the plaintiffs now complain about.[56] Additionally, I was also taken to the plaintiffs' references to the MEP in their reply, which pleading addresses the course of events concerning the MEP, primarily from 2009 to 2012.[57] To alleviate any disproportionality associated with the discovery burden on the plaintiffs, I considered it appropriate to carve out a number of aspects of the category as drafted by Mineralogy.

Categories EJ, EK and EL

[56] DS [29].

[57] Reply [8(c)(iii)] to [8(c)(vii)].

These categories were addressed by both camps in a collective manner. They concern documents recording or referring to consideration by the CITIC Parties of any measure to enable the full exercise of the parties' rights or the full implementation of the project (Category EJ), as to future phases or stages of the project (Category EK), and as to consideration by the CITIC Parties of the relationship between the 2017 MCPs and the 2023 MCPs (Category EL). I refused these categories.
The plaintiffs submitted that these categories were irrelevant and fishing, explaining that the paragraphs in the Statement of Claim and Amended Defence upon which Mineralogy relies do not justify the categories being ordered. I accepted that submission.
As to the Statement of Claim, my attention was directed to [77]. That paragraph includes an allegation that the measures in the 2023 MCPs would enable continuous operation of the Sino Iron Project for an 'interim period'.[58] The plaintiffs note that they provided further particulars of that allegation on 31 July 2024, as follows:[59]
The 2023 MCPs, if submitted and approved, would enable continuous operation of the Project for an interim period in the sense that they would not enable the full exercise by Sino Iron and Korean Steel of their combined rights to mine and process up to two billion tonnes of magnetite ore, and therefore they would not enable continuous operation for the full period that it would take to exercise those rights. That is because, being confined to areas over which Sino Iron and Korean Steel have existing rights of access and use, the 2023 MCPs do not provide sufficient capacity for storage of waste rock and tailings generated by the mining and processing of two billion tonnes of magnetite ore.
[58] Statement of Claim, [77(a)].
[59] PS [31].
It is evident from the pleading that the measures the plaintiffs have considered to enable full implementation of their Project Rights will not be relevant to the allegation that the measures in the 2023 MCPs will not do so. The categories are directed at matters which fall outside the pleaded case, as revealed by the Statement of Claim.
The same can be said in relation to the Amended Defence. In this regard, I was taken to [61(gA)] and [64(b)] of that pleading. Those paragraphs include allegations that the plaintiffs have not identified or proposed any acceptable long-term or permanent measures that the 2023 MCPs could facilitate as an 'interim' measure (other than the 2017 MCPs, which are unacceptable), and absent such a proposal Mineralogy is not bound to consider or accept proposals that are expressed to be 'interim' thereto.
I accept that the first of these matters is not directly relevant to any issue between the parties in this action, and the second of these matters is a question of law, not one that generates a requirement for additional discovery. The first defendant's submissions do not alter these conclusions.[60]
[60] DS [32] - [34].

G. Conclusion and orders

For the foregoing reasons, I made the orders as to discovery on 2 October 2024 which are set out in Attachment B to these reasons.
I should add, without seeking to invite unnecessary interlocutory applications in this matter, that I accept the process of discovery in proceedings such as this can be iterative, in the sense that the provision of initial tranches of discovery can expose gaps or deficiencies in the discovery process. This may lead to requests for the provision of additional discovery and, where that cannot be resolved by agreement, an application to the Court for further and better discovery under O 26 r 6(1) RSC or the Court's inherent jurisdiction may be warranted, for example. The parties will need to be mindful that any such applications for further discovery should be brought in a timely manner, conscious of the listed trial dates.

ATTACHMENT A
Discovery Categories

TABLE A: DISCOVERY TO BE GIVEN BY THE CITIC PARTIES

Category	Label	Description of Category	Agreed / Disputed	Court's Ruling
MEP	Definition	MEP means the “Mineralogy Expansion Proposal” as defined in [8(c)(iii)] of the Amended Reply filed 2 August 2024, and any other iterations of that document.	Disputed. This definition has been proposed by Mineralogy for the purposes of the categories it proposes (being Categories EH and EI), which are themselves disputed.	Definition as proposed by Mineralogy is appropriate and is required given the ruling made in relation to Category EI.
MCPs Period	Definition	MCPs Period means from 9 December 2014 to date, being the period 2 years prior to the date on which 2016 MCPs were provided to Mineralogy on 9 December 2016.	Disputed. This definition has been proposed by Mineralogy for the purposes of the categories it proposes, which are themselves disputed.	Definition was proposed by Mineralogy but is not required given the ruling in relation to Category AB.
Post Production Period	Definition	Post Production Period means from 30 June 2021 until 27 November 2023 being the date of the commencement of these proceedings.	Disputed. This is the revised definition proposed by the CITIC Parties.	Definition as proposed by the CITIC Parties is appropriate and is required given the rulings made in relation to various categories.
FCD Proceedings	Definition	FCD Proceedings means Western Australian Supreme Court Proceedings CIV 2072 of 2017 and CIV 1267 of 2018.	Agreed by the parties. Definition proposed by the CITIC Parties.	No ruling required.
A	Discovery from prior proceedings	Documents produced by way of discovery in the 2017 MCP Proceedings and the FCD Proceedings.	Agreed by the parties. Category proposed by the CITIC Parties.	No ruling required. Discovery to be given of documents within the category.
AB	Development of MCPs	All Documents in the Post Production Period ~~during the MCPs Period~~, including drafts, recording or referring to the consideration by the CITIC Parties of, the preparation and submission of, and any interaction with the State (in any capacity) in relation to, ~~any proposal for submission under the State Agreement (including~~ the 2023 MCPs~~), other than the 2016 MCPs and the 2017 MCPs~~.	Disputed. This is the description of the category proposed by the CITIC Parties in response to Mineralogy's category, on the basis the CITIC Parties did not concede relevance. Mineralogy has refused to agree to the revised category.	Category AB allowed in the following terms: All Documents in the Post Production Period, including drafts, recording or referring to the consideration by the CITIC Parties of, the preparation and submission of, and any interaction with the State (in any capacity) in relation to the 2023 MCPs. Discovery to be given of documents within the category, as amended. The Court notes the CITIC Parties' reservation that it does not concede the documents within the category are relevant.
AC	GIS Layers	All GIS layers or files used in the preparation of, or relevant to, the areas the subject of, the 2023 MCPs.	Agreed by the parties. Category proposed by the CITIC Parties, with an additional amendment proposed by the CITIC Parties and agreed by Mineralogy.	No ruling required. Discovery to be given of documents within the category, as amended: All GIS layers or files used in the preparation of, or relevant to, the areas the subject of, the 2023 MCPs.
B	Request in relation to the 2023 MCPs	All Documents exchanged between the parties relating to the request that Mineralogy approve and submit the 2023 MCPs.	Agreed by the parties. Category proposed by the CITIC Parties.	No ruling required. Discovery to be given of documents within the category.
C	Mine pit constraints	All Documents during the Post Production Period recording or referring to: i. the CITIC Parties' estimate of the remaining ore that can be extracted from the Mine Area without a further approved proposal; ii. the constraints that the CITIC Parties are experiencing because of the inability to expand the Mine Pit; and iii. any steps that the CITIC Parties have considered or have taken to try to relieve these constraints; iv. the CITIC Parties' estimate of the amount of ore that could be extracted from the proposed expanded Mine Pit with approval of the 2023 MCPs; v. the expanded Mine Pit proposed in the 2023 MCPs.	Agreed by the parties. Category proposed by the CITIC Parties. The CITIC Parties do not concede the relevance of the additional documents proposed by Mineralogy.	No ruling required. Discovery to be given of documents within the category, as amended by the CITIC Parties: All Documents during the Post Production Period recording or referring to: i. the CITIC Parties' estimate of the remaining ore that can be extracted from the Mine Area without a further approved proposal; ii. the constraints that the CITIC Parties are experiencing because of the inability to expand the Mine Pit; iii. any steps that the CITIC Parties have considered or have taken to try to relieve these constraints; iv. the CITIC Parties' estimate of the amount of ore that could be extracted from the proposed expanded Mine Pit with approval of the 2023 MCPs; or v. the expanded Mine Pit proposed in the 2023 MCPs. The Court notes the CITIC Parties' reservation that it does not concede the documents within pars (iv) and (v) are relevant.
D	Tailings requirements	All Documents during the Post Production Period recording or referring to: i. the CITIC Parties' tailings disposal requirements; ii. the CITIC Parties' estimate of its remaining tailings storage capacity; iii. the constraints that the CITIC Parties are experiencing with respect to tailings disposal because of the inability to expand outside the Mine Area; and iv. any steps that the CITIC Parties have considered or have taken to try to relieve these constraints; v. the CITIC Parties' estimate of the capacity of the tailings storage facility proposed in the 2023 MCPs; vi. the capacity of the expanded tailings storage facility proposed in the 2023 MCPs; vii. the expanded tailings storage facility proposed in the 2023 MCPs.	Agreed by the parties. Category proposed by the CITIC Parties. The CITIC Parties do not concede the relevance of the additional documents proposed by Mineralogy.	No ruling required. Discovery to be given of documents within the category, as amended: All Documents during the Post Production Period recording or referring to: i. the CITIC Parties' tailings disposal requirements; ii. the CITIC Parties' estimate of its remaining tailings storage capacity; iii. the constraints that the CITIC Parties are experiencing with respect to tailings disposal because of the inability to expand outside the Mine Area; iv. any steps that the CITIC Parties have considered or have taken to try to relieve these constraints; v. the CITIC Parties' estimate of the capacity of the tailings storage facility proposed in the 2023 MCPs; vi. the capacity of the expanded tailings storage facility proposed in the 2023 MCPs; or vii. the expanded tailings storage facility proposed in the 2023 MCPs. The Court notes the CITIC Parties' reservation that it does not concede the documents within pars (v) to (vii) are relevant.
E	Waste rock requirements	All Documents during the Post Production Period recording or referring to: i. the CITIC Parties' waste rock storage requirements; ii. the CITIC Parties' estimate of the amount of waste rock which will be produced by the extraction of 2Bt of ore; iii. the CITIC Parties' estimate of its remaining waste rock storage capacity; iv. the constraints that the CITIC Parties are experiencing with respect to waste rock storage because of the inability to expand outside the Mine Area, including because of the location of the Fortescue River Road; and v. any steps that the CITIC Parties have considered or have taken to try to relieve these constraints; vi. the CITIC Parties' estimate of the waste rock storage capacity of the waste rock dumps proposed in the 2023 MCPs; or vii. the waste rock dumps proposed in the 2023 MCPs.	Agreed by the parties. Category proposed by the CITIC Parties. The CITIC Parties do not concede the relevance of the additional documents proposed by Mineralogy.	No ruling required. Discovery to be given of documents within the category, as amended by the CITIC Parties: All Documents during the Post Production Period recording or referring to: i. the CITIC Parties' waste rock storage requirements; ii. the CITIC Parties' estimate of the amount of waste rock which will be produced by the extraction of 2Bt of ore; iii. the CITIC Parties' estimate of its remaining waste rock storage capacity; iv. the constraints that the CITIC Parties are experiencing with respect to waste rock storage because of the inability to expand outside the Mine Area, including because of the location of the Fortescue River Road; v. any steps that the CITIC Parties have considered or have taken to try to relieve these constraints; vi. the CITIC Parties' estimate of the waste rock storage capacity of the waste rock dumps proposed in the 2023 MCPs; or vii. the waste rock dumps proposed in the 2023 MCPs. The Court notes the CITIC Parties' reservation that it does not concede the documents within pars (vi) and (vii) are relevant.
EA	Planning	All Documents ~~since~~ from 1 January 2012 to 27 November 2023 recording or referring to the CITIC Parties' consideration of the expansion of the mine pit or waste storage capacity for the purposes of the Sino Iron Project.	Disputed. Category was proposed by Mineralogy. Amendments were proposed by the CITIC Parties in response to Mineralogy's proposed category, without conceding the relevance of the documents.	Category EA allowed in the following terms: All Documents from 1 January 2012 to 27 November 2023 recording or referring to the CITIC Parties' consideration of the expansion of the mine pit or waste storage capacity for the purposes of the Sino Iron Project. Discovery to be given of documents within the category, as amended. The Court notes the CITIC Parties' reservation that it does not concede the documents in the category are relevant.
EB	Productivity rates	All Documents since 1 January 2012 recording or referring to adverse issues experienced in connection with the productivity of mining and processing operations.	Disputed. Category was proposed by Mineralogy.	Category EB refused.
EC	Substandard performance	All Documents since 1 January 2012 recording or referring to substandard performance of mining and processing operations, including (but not limited to): i. heavy mobile equipment operations; ii. mine planning; or iii. staff turnover.	Disputed. Category was proposed by Mineralogy.	Category EC refused.
ED	TSF Issues	All Documents since 1 January 2012 recording or referring to adverse issues in connection with the planning, design, construction and use of the tailings storage facility.	Disputed. Category was proposed by Mineralogy.	Category ED refused.
EE	Additional tenure	All Documents since 1 January 2012 recording or referring to the CITIC Parties' consideration of acquiring access to or use of areas in addition to the Site Lease Area in the MRSLAs.	Disputed. Category was proposed by Mineralogy.	Category EE refused.
EF	Golder	All Documents since 1 January 2012 recording or relating to the CITIC Parties' consideration of Golder's proposals in connection with the storage of tailings.	Disputed. Category was proposed by Mineralogy.	Category EF refused.
EG	Commissioning	All Documents since 1 January 2012 recording or referring to construction issues in connection with the processing plant.	Disputed. Category was proposed by Mineralogy.	Category EG refused.
EH	Internal Meetings	All Documents since 1 January 2012 recording or referring to the minutes of the meetings, or the budgets of or for: i. the “Fulcrum Group”, “Project Fulcrum” or “Fulcrum Team”; ii. “Arnica” or “Project Arnica”; iii. the “Sustainability Committee” iv. the “Special Projects” team or department; v. “ExCo”; or vi. the boards of CPMM, CITIC Limited (including both CITIC Pacific Ltd and CITIC Ltd as they existed from time to time) or CITIC Minerals International (also known as “CMI”), relating to: vii. the expansion of the mine pit or waste storage capacity for the purposes of the Sino Iron Project; viii. the CITIC Parties' consideration of the MEP; or ix. the submission of proposals under the State Agreements or other regulatory approvals.	Disputed. Category was proposed by Mineralogy.	Category EH allowed in the following terms: All documents from 1 January 2012 to 27 November 2023 which are minutes of the meetings or the budgets of, or for, any of the following groups, teams, committees, departments, or boards: i. the “Fulcrum Group”, “Project Fulcrum” or “Fulcrum Team”; ii. “Arnica” or “Project Arnica”; iii. the “Sustainability Committee” iv. the “Special Projects” team or department; v. “ExCo”; or vi. the boards of CPMM, CITIC Limited (including both CITIC Pacific Ltd and CITIC Ltd as they existed from time to time) or CITIC Minerals International (also known as “CMI”), which refer to the expansion of the mine pit or waste storage capacity for the purposes of the Sino Iron Project. Discovery to be given of documents within the category, as described above.
EI	MEP	All Documents between 1 January 2010 and 21 December 2017 recording or referring to: the CITIC Parties' consideration of the MEP; the CITIC Parties assisting Mineralogy in pursuing approval of the MEP; the CITIC Parties' consideration of whether to provide assistance to Mineralogy in pursuing approval of the MEP; or the CITIC Parties' consideration of whether to pursue the approval of environmental approval(s) separate to the MEP.	Disputed. Category was proposed by Mineralogy.	Category EI allowed in the following terms: All Documents between 1 January 2010 and 21 December 2017 recording or referring to: i. the CITIC Parties' consideration of the MEP; or ii. the CITIC Parties assisting Mineralogy in pursuing approval of the MEP. Discovery to be given of documents within the category as described above.
EJ	Interim Measure	All Documents during the Post Production Period recording or referring to consideration by the CITIC Parties of any measures to enable: the full exercise of the Sino/Korean Project Rights; or the full implementation of the Sino Iron Project.	Disputed. Category was proposed by Mineralogy.	Category EJ refused.
EK	Future phases	All Documents during the Post Production Period recording or referring to future phases or stages of the Sino Iron Project after implementation of the 2023 MCPs.	Disputed. Category was proposed by Mineralogy.	Category EK refused.
EL	Interaction between 2017 MCPs and 2023 MCPs	All Documents during the Post Production Period recording or referring to consideration by the CITIC Parties of the relationship between the 2017 MCPs and the 2023 MCPs	Disputed. Category was proposed by Mineralogy.	Category EL refused.
EM	Operational issues	All Documents during the Post Production Period recording or referring to: i. the geology of the ore body and the size and design of the mine pit, including; ~~a. all daily results and reports of in pit 12 metre bench algorithm of FE content models;~~ b. ~~Vulcan / DXF life of mine (LOM) ore body, with LOM open pit overlay~~; c. ~~Vulcan / DXF model of current reserves with LOM open pit overlay~~ 2017 CITIC Mineral Resource Estimate Update; d. Entech Mineral Resource Estimate – Sino Iron Project – December 2021; e. End of month open pit surveys in DXF format; f. April 2018 Programme of Works; ~~g. any programme of works of future drilling and proposed resources and reserves upgrade with LOM open pit overlay;~~ h. Vulcan / DXF model of ore body definition and modelling, including the location of all bore holes, all lithology logs and assay results, all geophysical logs, all core photos, all core lab analysis, all geotechnical information used to build the mine geological model, or all open cut economic ore body cut-off depth; i. DVD tilted 'CITIC Pacific Mining: Resource Report and & Vulcan Files'; j. CSV files from acQuire database; k. CITIC's drillhole database in .csv format; ii. any Mine Plan, the shape of the mine pit and the alleged need to expand the mine pit to the west (save that for this purpose, a “Mine Plan” is limited to a documented plan for the Life of Mine or for a 3 or 5 year (or longer) period); iii. the size and design of the tailings storage facility for the Sino Iron Project; iv. tailings disposal requirements for the Sino Iron Project; v. the extension of the mine pit to the west; vi. the relocation of the Fortescue River Road as proposed in the 2023 MCPs; vii. the CITIC Parties' experience in developing and operating the Sino Iron Project as it concerns the development of the 2023 MCPs and the alleged necessity for the facilities proposed in the 2023 MCPs; viii. waste rock requirements for the Sino Iron Project; or ix. the design of facilities which are the subject of the 2023 MCPs, including timeframes and schedules for construction, construction drawings and specifications, contract tenders and reports justifying the necessity for the facilities. Documents as at August 2023: x. recording the then current annual forecast of production of magnetite concentrate for the Sino Iron Project.	This is the category as proposed by Mineralogy and revised by the CITIC Parties. Agreed by the parties on the basis of CITIC Parties' amendments to the category, and on the basis set out in Mineralogy's submissions at [31].	No ruling required. Discovery to be given of documents within the category, as amended by the CITIC Parties and noting Mineralogy's submission: All Documents during the Post Production Period recording or referring to: i. the geology of the ore body and the size and design of the mine pit, including; a. 2017 CITIC Mineral Resource Estimate Update; b. Entech Mineral Resource Estimate – Sino Iron Project – December 2021; c. End of month open pit surveys in DXF format; d. April 2018 Programme of Works; e. DVD tilted 'CITIC Pacific Mining: Resource Report and & Vulcan Files'; f. CSV files from acQuire database; g. CITIC's drillhole database in .csv format; ii. any Mine Plan, the shape of the mine pit and the alleged need to expand the mine pit to the west (save that for this purpose, a “Mine Plan” is limited to a documented plan for the Life of Mine or for a 3 or 5 year (or longer) period); iii. the size and design of the tailings storage facility for the Sino Iron Project; iv. tailings disposal requirements for the Sino Iron Project; v. the extension of the mine pit to the west; vi. the relocation of the Fortescue River Road as proposed in the 2023 MCPs; vii. the CITIC Parties' experience in developing and operating the Sino Iron Project as it concerns the development of the 2023 MCPs and the alleged necessity for the facilities proposed in the 2023 MCPs; viii. waste rock requirements for the Sino Iron Project; or ix. the design of facilities which are the subject of the 2023 MCPs, including timeframes and schedules for construction, construction drawings and specifications, contract tenders and reports justifying the necessity for the facilities. Documents as at August 2023: x. recording the then current annual forecast of production of magnetite concentrate for the Sino Iron Project.
F	Fortescue River Road relocation	All Documents during the Post Production Period recording or referring to the planned relocation of the Fortescue River Road.	Agreed by the parties. Category proposed by the CITIC Parties.	No ruling required. Discovery to be given of documents within the category.
G	Suspension	All Documents during the Post Production Period recording or referring to the risk of suspension and / or slowdown at the mine, the reasons for such suspension and / or slowdown.	Agreed by the parties. Category proposed by the CITIC Parties.	No ruling required. Discovery to be given of documents within the category.
H	Mineralogy breach allegation	All Documents exchanged between the parties concerning Mineralogy's request, in its letter dated 6 November 2023 (particularised to [1(eA)] of the Amended Defence), that the CITIC Parties give Mineralogy access to observe all measurement, sampling and assay procedures.	Agreed by the parties. Category proposed by the CITIC Parties.	No ruling required. Discovery to be given of documents within the category.

TABLE B: DISCOVERY TO BE GIVEN BY MINERALOGY PTY LTD

Category	Label	Description of Category	Agreed / Disputed	Court's Ruling
AA	Discovery from prior proceedings	Documents produced by way of discovery in the 2017 MCP Proceedings and the FCD Proceedings.	Agreed by the parties.	No ruling required. Discovery to be given of documents within the category.
A	Mineralogy consideration of the 2023 MCPs	All Documents recording or referring to: i. the Mineralogy Parties' consideration of the 2023 MCPs, including consideration of what, if any, further commercial and technical information the Mineralogy Parties required to enable consideration of the 2023 MCPs; and ii. internal correspondence, and correspondence with any consultants, and / or with any government officials or agencies, in relation to the Mineralogy Parties receipt and consideration of the 2023 MCPs.	Agreed by the parties. Category proposed by the CITIC Parties.	No ruling required. Discovery to be given of documents within the category.
B	Mineralogy breach allegation	All Documents exchanged between the parties concerning Mineralogy's request, in its letter dated 6 November 2023 (particularised to [1(eA)] of the Amended Defence), that the CITIC Parties give Mineralogy access to observe all measurement, sampling and assay procedures	Agreed by the parties. Category proposed by the CITIC Parties.	No ruling required. Discovery to be given of documents within the category.

ATTACHMENT B
Orders made on 2 October 2024

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TL
Associate to the Honourable Justice Lundberg
7 NOVEMBER 2024