Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 3]
[2024] WASC 486
•18 DECEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: SINO IRON PTY LTD -v- MINERALOGY PTY LTD [No 3] [2024] WASC 486
CORAM: LUNDBERG J
HEARD: 5 DECEMBER 2024
DELIVERED : 18 DECEMBER 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
FILE NO/S: CIV 2072 of 2017
BETWEEN: CLIVE FREDERICK PALMER
First Plaintiff
MINERALOGY PTY LTD
Second Plaintiff
AND
CITIC LTD
First Defendant
SINO IRON PTY LTD
Second Defendant
KOREAN STEEL PTY LTD
Third Defendant
Catchwords:
Practice and procedure - Further trial directions required for the hearing of two actions - Length of trial and sitting days - Common issues arising in the two action - Consideration of the approach to listing of a hearing to facilitate the determination of the issues which are common to the actions - Case management considerations - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 1 r 4B, O 4A r 2, O 4A r 5
Result:
Further trial directions made
Category: B
Representation:
CIV 2336 of 2023
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 J Dunning KC, M A Karam, K S Byrne & H Cooper |
| 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 |
CIV 2072 of 2017
Counsel:
| First Plaintiff | : | P J Dunning KC, M A Karam, K S Byrne & H Cooper |
| Second Plaintiff | : | P J Dunning KC, M A Karam, K S Byrne & H Cooper |
| First Defendant | : | S K Dharmananda SC, S B Nadilo & J Sippe |
| Second Defendant | : | S K Dharmananda SC, S B Nadilo & J Sippe |
| Third Defendant | : | S K Dharmananda SC, S B Nadilo & J Sippe |
Solicitors:
| First Plaintiff | : | Robinson Nielsen Legal |
| Second Plaintiff | : | Robinson Nielsen Legal |
| First Defendant | : | Allens |
| Second Defendant | : | Allens |
| Third Defendant | : | Allens |
Case(s) referred to in decision(s):
Palmer v CITIC Limited [No 12] [2024] WASC 322
Table of Contents
A. Introduction
B. The actions
The 2023 MCP Proceeding
The QNI Proceeding
The Fulcrum Proceeding
C. Trial directions
D. The trial of the 2023 MCP Proceeding
E. The Overlap Hearing
F. Conclusion and orders
ATTACHMENT A
ATTACHMENT B
LUNDBERG J:
A. Introduction
The Court has made orders to list for trial two of the outstanding actions involving the Mineralogy Parties and the CITIC Parties, which form part of the broader Cape Preston Proceedings. Those trials will be heard in 2025.
These reasons concern the further case management directions which are needed to effectively manage the actions through to those trials. The directions will be made pursuant the Court's powers in O 4A r 2(1) and r 5 of the Rules of the Supreme Court 1971 (WA) (RSC), with the intended purpose of facilitating the attainment of the objects stated in O 1 r 4B(1) RSC.
B. The actions
The 2023 MCP Proceeding
On 10 September 2024, the Court delivered reasons to address the manner in which these actions should be sequenced through to trial. The Court concluded that action CIV 2336 of 2023, referred to as the 2023 MCP Proceeding, required a swift resolution and should be listed for trial promptly.
On 11 September 2024, the Court ordered that the primary trial of the 2023 MCP Proceeding be listed to commence on 28 April 2025 for at least 13 sitting days, with the length of the trial and sitting days to be confirmed by the Court in due course.
The QNI Proceeding
Two other actions, being CIV 2072 of 2017 and CIV 1267 of 2018 (referred to respectively as the QNI Proceeding and the Palmer Petroleum Proceeding) were assessed as also being ready for trial, to be heard following the trial of the 2023 MCP Proceeding.
On 26 September 2024, the Court ordered that the QNI Proceeding and the Palmer Petroleum Proceeding be listed for trial to commence on 28 May 2025 for some 8 weeks.[1] The Palmer Petroleum Proceeding has now been resolved by the parties and so only the trial of the QNI Proceeding remains.
The Fulcrum Proceeding
[1] Order 1 made on 26 September 2024 in CIV 2072 of 2017 states: 'The matter be listed for trial commencing at 10.30am on Wednesday, 28 May 2025, for eight weeks, such trial to be heard together with the trial in action CIV 1267 of 2018, with the evidence in one trial standing as evidence in the other and vice versa'.
A further action, being CIV 2425 of 2023 (the Fulcrum Proceeding), was the subject of the sequencing application determined in September, and is being managed by Cobby J. The Fulcrum Proceeding is presently the subject of substantial interlocutory argument on pleading and related matters, as described in the Court's reasons delivered on 10 September 2024.[2]
[2] Palmer v CITIC Limited [No 12] [2024] WASC 322 [108] - [111] (Lundberg J).
These matters have been the subject of hearings over some 4 days in October, with a further full day yesterday (17 December 2024). As matters stand, given the proximity to trial of the 2023 MCP Proceeding and the QNI Proceeding, the Fulcrum Proceeding should remain case managed by Cobby J, to be separately heard at trial after those actions.
C. Trial directions
Various trial directions have now been made in the 2023 MCP Proceeding and the QNI Proceeding to progress those actions to trial. It is evident the parties are devoting, quite properly, considerable resources to the process of preparing these actions for trial, although there is evidently considerable work ahead for all of the practitioners and party representatives involved.
In the 2023 MCP Proceeding, initial trial directions were made on 11 September 2024, with various adjustments made to the timetable by orders dated 6 December 2024, largely by consent.
In the QNI Proceeding, initial trial directions were made on 26 September 2024, again with various adjustments made to the timetable by orders dated 6 December 2024, also largely by consent.
A further aspect of these actions (to which the practitioners have given particular attention) is the manner in which the trials will be conducted and the appropriate directions which ought be made to manage the overlap of issues between the actions (although I pause to note that senior counsel for the Mineralogy Parties fairly described the issues as being interdependent, not merely overlapping).
Further directions were made by the Court in September 2024 to list hearings in these actions for 5 December 2024 and today (18 December), to examine the listing of the trial of the 2023 MCP Proceeding and the interaction between the actions, and make a further set of trial orders.
I heard argument on these matters on 5 December 2024, and I turn now to explain the approach the Court will adopt.
D. The trial of the 2023 MCP Proceeding
The trial will commence on 28 April 2025. The Court provisionally listed the trial for 13 sitting days. The parties hold different views as to the appropriate estimate for the length of the trial. There is also disagreement as to the days of the week on which the Court should sit, for various reasons.
The only verified estimate of the trial length provided to the Court has come from the CITIC Parties. That estimate was 10 days.[3] The estimate was provided in March 2024, and a number of developments have occurred in the litigation since that time, but it nonetheless strikes me as a useful and reasonable starting point when considering the length of the trial.
[3] Reply Affidavit of David William John sworn 15 March 2024 [30] - [32] (filed in the 2023 MCP Proceeding).
It has been urged upon the Court by the Mineralogy Parties that the trial will require at least 16 sitting days (to be spread across 4 weeks), and submitted that the CITIC Parties' estimate is not realistic, particularly given the length of the trial before Kenneth Martin J of the 2017 MCP Proceeding,[4] which occupied some 32 sitting days. Senior counsel identified several examples of the factual disputes arising on the pleadings which are said to lend support for the longer estimate of the trial length. The Mineralogy Parties accept, however, there are differences between the issues arising in the two actions.
[4] ts 1158 - 1161.
Further, as the Court has previously observed, there are likely to be efficiencies gained from the earlier trial of similar issues before Kenneth Martin J in 2022, and from the close scrutiny which has been given to those matters through the course of the appeal proceedings before the Court of Appeal earlier this year.
A consideration to be borne in mind in scheduling the trial of the 2023 MCP Proceeding is the relative urgency of the relief which is sought, which concerns the continuing operation of a large-scale iron ore mine in this State. This Court has noted more than once there is a real public interest in the dispute being resolved as quickly as possible. Of course, the Court will not be able to finally determine the 2023 MCP Proceeding until the conclusion of the trial of the QNI Proceeding, given the overlapping legal and factual issues across the two actions.
In reality, then, the overall listing and management of both actions needs to be considered by the Court, rather than examining the trial of each action in isolation. Approaching the matter this way, it is evident that there is a practical imperative for the trial of the 2023 MCP Proceeding to be completed (other than the overlap issues) in sufficient time ahead of the trial of the QNI Proceeding, to ensure the Court has adequate time to commence the process of considering the evidence and submissions which will have just been heard and, further, to allow adequate time for the parties and the Court to prepare for the trial of the QNI Proceeding which is to commence on 28 May 2025. The process of having one judge absorb the extensive materials in the two trials requires a realistic assessment to be undertaken of the listing of these matters, recognising also the need to build in some contingency, given the proximity of the trial of the QNI Proceeding in late May 2025.
It may be accepted that the foregoing approach would likely need to give way if the trial of the 2023 MCP Proceeding undoubtedly required 16 or more sitting days. Presently, I accept there is at least a risk in this regard, but I do not accept that it is certainly the case that a fair and proper hearing, for both sets of parties, will require that period of time.
The verified estimate of 10 sitting days is a useful and reasonable starting point. The Court's own assessment was closer to 13 sitting days. I propose to list the matter for 13 sitting days, commencing on 28 April 2025. In recognition of some of the points developed by senior counsel for the Mineralogy Parties,[5] I will list the second and third weeks of the trial for only 4 sitting days. The Court will accordingly make directions as follows (with the phrase Primary Trial being the term defined in order 4 of the orders made on 11 September 2024 in the 2023 MCP Proceeding):[6]
(a)The Primary Trial of the 2023 MCP Proceeding be listed for 13 sitting days commencing on 28 April 2025, which is consistent with the order made on 11 September 2024.[7]
(b)The first sitting week will be 5 days, Monday to Friday. The second sitting week will be 4 days, Monday to Thursday. The third sitting week will be 4 days, Monday to Thursday.
(c)The parties should agree a trial plan which allocates the sitting days in a manner which allows for the completion of the trial within the allocated time.
(d)On this timetable, the initial trial will conclude on 15 May 2025.
[5] ts 1162.
[6] The Primary Trial excludes the quantification of the loss and damage allegedly suffered by the plaintiff, as pleaded at [95] of the statement of claim dated 27 November 2023.
[7] See order 5 of the orders made on 11 September 2024.
E. The Overlap Hearing
It is accepted by the parties that the two actions will require a determination of a series of common issues. It is also accepted by the parties that the evidence of the common issues will be taken as evidence in both actions. The overlap issues will be the subject of a further Overlap Hearing.
One of the overlapping issues which starkly emerges from the pleadings is described generally as the Fulcrum Allegations. In the QNI Proceeding, the Fulcrum Allegations can be seen at [37] to [110] of the reply to the amended substituted defence dated 3 June 2024. In the 2023 MCP Proceeding, the Fulcrum Allegations find a home at [1(b)] of the amended defence dated 11 March 2024.
A further overlap is distinctly visible in [1(d)] of the amended defence dated 11 March 2024 in the 2023 MCP Proceeding, which expressly incorporates the indemnity claims in the QNI Proceeding.
In submissions filed on 4 December 2024, the CITIC Parties summarised the overlapping issues as follows:[8]
It appears to be common ground that submissions and documentary evidence for the Fulcrum Allegations in CIV 2336, the Anshun/Abuse Allegations and the Response to the Anshun/Abuse Allegations in CIV 2072 (including the Fulcrum Allegations) should be heard and received by the Court at the same time. The parties disagree about how these issues should be sequenced with the other issues in the proceedings.
[8] CITIC Submissions dated 4 December 2024, [10].
The CITIC Parties' primary proposal was for the Overlap Hearing to be held between the conclusion of the 2023 MCP Proceeding and the commencement of the QNI Proceeding. However, senior counsel for the CITIC Parties in the QNI Proceeding made it clear the proposal had flexibility built into it, with the 'block of days' allocated to the overlap hearing capable of being heard later, during the course of the trial of the QNI Proceeding. On either approach, this would enable the issues to be quarantined to a degree, and separately examined by the Court in an efficient manner. That approach was based, at least in part, on an understanding by the CITIC Parties that the overlap issues would not require any lay or expert evidence. That is, the evidence would be fundamentally documentary in nature.
The Mineralogy Parties have raised the possibility, although I would not put it much higher than that, that some oral evidence may be required for the purposes of the overlapping issues.[9] For present purposes, the Court can reasonably proceed on the basis that the majority of the evidence will be documentary in nature and any lay evidence which might be called will not be material in length. To the extent to which the Mineralogy Parties form a definitive view that lay evidence will be required on their part as part of the overlapping issues, they should communicate that to the CITIC Parties and the Court at the earliest juncture possible. This will enable an assessment to be made as to whether the calling of that evidence impacts on the broader running of the trial of the QNI Proceeding.
[9] ts 1164.
As matters stand, the listing of the Overlap Hearing should be undertaken in a manner which facilitates the broader management of the trial of the QNI Proceeding, and which allows the evidence on those issues to be adduced in a meaningful context, particularly from the perspective of the Court. This latter point was emphasised by senior counsel for the Mineralogy Parties and has much to commend it.[10]
[10] ts 1166 - 1169.
On balance, I therefore prefer an approach in which the evidence of the overlapping issues is not adduced until after the commencement of the primary trial of the QNI Proceeding, to ensure that the evidence is led after the point in time at which all parties have opened their cases and given appropriate context to the manner in which the evidence will be led. This approach is likely to ensure the evidence is adduced in a more meaningful context and in an environment in which objections to any of the evidence and arguments can be addressed by the parties and determined by the Court against the framework of the parties' cases. The precise date on which the Overlap Hearing will commence will need to be fixed in due course, on the basis that a single sitting week can be identified within the course of the 8 week trial to accommodate the hearing of these issues.
Otherwise, the directions promoted by the CITIC Parties for the preparation of the trial documents for the hearing of the overlapping issues present as appropriate and suitable, on the basis that the hearing is fundamentally a documentary-based trial and the materials for the hearing and determination of these matters should be capable of being isolated and prepared in the manner which the CITIC Parties have proposed. From the Court's perspective, there is considerable merit in fixing these directions now to ensure the preparation of the trials in 2025 proceeds smoothly, with the parties being well aware now of the steps required.
Delaying the determination of these matters until a trial plan is prepared in early 2025 presents as a less attractive option from a case management perspective, given the looming trials and need for greater clarity as to the manner in which the trials of the two actions and the overlap issues will be run.
F. Conclusion and orders
Accordingly, the Court will make directions as to the Overlap Hearing as set out in Attachment A, with those orders being made in the 2023 MCP Proceeding.
Directions for the preparation of the trial documents for the Overlap Hearing are set out in Attachment B, with those orders being made in the QNI Proceeding and similar orders should be adopted in the 2023 MCP Proceeding. I observe that the dates fixed in the order were predicated on an earlier listing of the Overlap Hearing. Provided the architecture of the orders is maintained, the Court would be open to some adjustment of the dates where those dates fall on days which already have additional Court-ordered steps being undertaken by the parties.
The foregoing will effectively mean there are three distinct hearings required for the determination of these two actions, being the trial of the 2023 MCP Proceeding which will commence first, followed by the trial of the QNI Proceeding which will commence thereafter, with a trial of the overlapping issues to be held during the course of the trial of the QNI Proceeding at a suitable point. The evidence adduced in the trial of the overlapping issues will be evidence in both actions, and evidence adduced as to the broader QNI Allegations heard during the course of the trial of the QNI Proceeding will be evidence in the 2023 MCP Proceeding (given the presence of the allegation in [1(d)] of the amended defence in the 2023 MCP Proceeding).
I will request that the parties file minutes for the purposes of both actions which give effect to these reasons.
ATTACHMENT A
Directions for the listing of the Overlap Hearing
2023 MCP Proceeding
Listing of the overlap hearing
Further to orders 2 and 5 of the orders made on 11 September 2024, the interaction between the Primary Trial (as that term is defined in order 4 dated 11 September 2024) and the trial in CIV 2072 of 2017 (QNI Proceeding) be as follows:
(a) the Primary Trial hearing commencing on 28 April 2025:
(i) shall deal with all pleaded issues allocated by order 4 dated 11 September 2024 to the Primary Trial (Primary Trial Pleaded Issues), except those Primary Trial Pleaded Issues arising from:
(A) the allegations in paragraph 1(b) of Mineralogy's Amended Defence dated 11 March 2024 (Fulcrum Allegations);
(B) the allegations in paragraph 1(d) of the Amended Defence (QNI Allegations); and
(ii) be conducted, on an estimate of 13 days, sitting on 28-30 April 2025 and 1, 2, 5, 6, 7, 8, 12, 13, 14 and 15 May 2025;
(b) there be a further hearing (Overlap Hearing) conducted, on an estimate of 5 sitting days, on a date to be fixed after 28 May 2025 and after the opening addresses of the parties in the QNI Proceeding, to deal with:
(i) in the 2023 MCP Proceeding, the Primary Trial Pleaded Issues arising from the Fulcrum Allegations; and
(ii) in the QNI Proceeding, the pleaded issues arising from the allegations in paragraphs 54 to 87 of the Amended Substituted Defence filed 17 May 2024 (Anshun/Abuse Allegations) and from the allegations in paragraph 36 to 110 of the Reply to the Defence filed 3 June 2024 (Response to Anshun/Abuse Allegations);
with evidence in the Overlap Hearing to be evidence in the 2023 MCP Proceeding and in the QNI Proceeding;
(c) the Primary Trial Pleaded Issues arising from the QNI Allegations be otherwise dealt with at the hearing of the QNI Proceeding to commence on 28 May 2025, with evidence in the QNI Proceeding to be evidence in the 2023 MCP Proceeding.
ATTACHMENT B
Directions for the trial documents for the Overlap Hearing
QNI Proceeding
Trial documents
By Friday, 21 February 2025:
(a)the plaintiffs must serve a list of the documents the plaintiffs intend to tender at the Overlap Hearing regarding the Fulcrum Allegations (identified by reference to the discovery number of the document, where applicable, or unique document identification number);
(b)the defendants must serve a list of the documents the defendants intend to tender at the Overlap Hearing regarding the Anshun Allegations (identified by reference to the discovery number of the document, where applicable, or unique document identification number); and
(c)each party must produce to the other parties electronic copies of any documents in their list of documents that have not been discovered in this proceeding, in the format prescribed by the Exchange Protocol.
By Friday, 14 March 2025:
(a)the plaintiffs must serve a list of the documents the plaintiffs intend to tender at the Overlap Hearing in response to the Anshun Allegations (identified by reference to the discovery number of the document, where applicable, or unique document identification number);
(b)the defendants must serve a list of the documents the defendants intend to tender at the Overlap Hearing in response to the Fulcrum Allegations (identified by reference to the discovery number of the document, where applicable, or unique document identification number); and
(c)each party must produce to the other parties electronic copies of any documents in their list of documents that have not been discovered in this proceeding, in the format prescribed by the Exchange Protocol.
Only those documents which will be tendered at the Overlap Hearing should be included within the lists of documents in orders 1 and 2 above, and a party including a document within the bundle should be able to justify to the Court the purpose for which the document is to be tendered upon request.
By Friday, 4 April 2025, each party will advise each other party in writing which of the specified documents may be tendered by consent, and whether the authenticity of any of the remaining documents (specify which) is disputed and give reasons in writing as to why consent to tender the remaining documents is withheld.
By Friday, 11 April 2025, the other party serving shall inform the objecting party whether any of the objections are conceded.
If any dispute concerning the admissibility of any document or any part thereof has not been resolved, counsel for the parties shall confer and attempt to resolve it. Such conferral shall, if practicable, be in person and failing that shall be by telephone.
Overlap Hearing trial bundle
By 4.00pm on Tuesday, 15 April 2025, the defendants are to deliver to the associate to Justice Lundberg, and to serve on the plaintiffs, a USB containing an electronic copy of the trial bundle for the Overlap Hearing consisting of:
(a)all documents in a document folder; and
(b)an index in the form of a populated version of the excel spreadsheet with the filename 'eTrial Bulk Upload Template.xlsx' as provided by the court and prepared in accordance with the Consolidated Practice Directions.
The legal representatives for the parties must be able to justify to the Court the purpose for which each document is included in the Overlap Hearing trial bundle.
Each document included within the Overlap Hearing trial bundle will, in the absence of specific objection by another party, be taken to be:
(a)authentic;
(b)prepared by the apparent author;
(c)in the case of a communication, sent by the person appearing to have sent it, and received by the person or persons appearing to have received it, on or about the date it bears; and
(d)a document which may be tendered by consent.
Opening submissions and chronology
No later than 4.00pm on Wednesday, 16 April 2025, the plaintiffs will file and serve their written outline of opening submissions for the Overlap Hearing of no more than 50 pages.
No later than 4.00pm on Wednesday, 16 April 2025, the plaintiffs will file and serve a chronology of events for the Overlap Hearing settled by counsel. The chronology must succinctly, objectively and without argument, state the date and facts of each event that is material to the proceedings in numbered paragraphs arranged in date order. The facts as identified in the chronology should be linked to the documentary source relied upon to prove that fact at trial.
No later than 4.00pm on Wednesday, 23 April 2025, the defendants will file and serve their written outline of opening submissions for the Overlap Hearing of no more than 50 pages.
No later than 4.00pm on Wednesday, 23 April 2025, the defendants will file and serve their reply to the plaintiffs' chronology of relevant events for the Overlap Hearing settled by counsel. This reply must respond to the defendants' chronology and either agree the chronology is correct or:
(a)identify any errors in the chronology; and
(b)identify any further events that the plaintiffs allege ought to be included or excluded. Where further events are included the defendants should state succinctly, objectively and without argument the date and facts of each further event, and link the facts as identified in the chronology to the documentary source relied upon to prove that fact at trial.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LM
Associate to the Honourable Justice Lundberg
18 DECEMBER 2024