Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 4]
[2025] WASC 25
•31 JANUARY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: SINO IRON PTY LTD -v- MINERALOGY PTY LTD [No 4] [2025] WASC 25
CORAM: LUNDBERG J
HEARD: 30 JANUARY 2025
DELIVERED : 31 JANUARY 2025
FILE NO/S: CIV 2336 of 2023
BETWEEN: SINO IRON PTY LTD
First Plaintiff
KOREAN STEEL PTY LTD
Second Plaintiff
CITIC LIMITED
Third Plaintiff
AND
MINERALOGY PTY LTD
First Defendant
STATE OF WESTERN AUSTRALIA
Second Defendant
Catchwords:
Practice and procedure - Expert evidence - Practice Direction 4.5.2 - Objections to relevance and appropriateness of questions proposed to expert witnesses - Objections as to facts and assumptions - Case management considerations - Turns on own facts
Legislation:
Consolidated Practice Direction 4.5.2
Result:
Directions made
Category: B
Representation:
Counsel:
| First Plaintiff | : | J H Kirkwood SC and T B Maxwell |
| Second Plaintiff | : | J H Kirkwood SC and T B Maxwell |
| Third Plaintiff | : | J H Kirkwood SC and T B Maxwell |
| First Defendant | : | P J Dunning KC, K S Byrne & 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):
Nil
LUNDBERG J:
A. Introduction
The plaintiffs, the CITIC Parties, seek orders in this action compelling the first defendant, 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. Mineralogy resists the relief which is sought. The 2023 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. The trial of the action is due to commence in late April 2025.
These reasons concern the dispute between the parties as to the substance of the questions, facts, and assumptions which are to be posed to the experts briefed by the parties in this action, referred to as the 2023 MCP Proceeding.
I propose to set out some background in relation to the expert evidence issues and then explain the approach I propose to adopt in this proceeding, as indicated to parties at the hearing on 30 January 2025.
B. Directions made to date in relation to expert evidence
The Court has made several directions to date in relation to the expert evidence to be adduced in this action and the timetable for doing so. I refer to the orders made on 11 September 2024, the orders made on 23 December 2024, the hearing on 22 January 2025, and the further hearing on 30 January 2025.
On 11 September 2024, orders were made by the Court granting the plaintiffs and the first defendant leave to adduce expert evidence at the trial of this action. Both the plaintiffs and the first defendant thus signalled at an early stage that they wished to adduce expert evidence at trial or, at least, wished to have the opportunity to do so. That is not surprising given the technical nature of the issues raised by this action.
A timetable was ordered to require the parties to prepare and exchange minutes of the proposed expert evidence, in accordance with the standard orders of this Court. The minutes were to capture matters such as the nature of the proposed expert evidence, the specific questions, the assumptions the expert would be asked to make, and the facts relevant to the expert opinion.
The initial timetable contemplated the exchange of the minutes by mid-December 2024, with a hearing in December 2024 to resolve any matters in dispute, if required. Otherwise, the Court-ordered timetable would require the filing of the plaintiffs' expert evidence by 31 January 2025, with the first defendant filing any expert evidence by 10 March 2025.
On 23 December 2024, by consent, the timetable was adjusted. An order was made to require the plaintiffs to file a copy of their expert reports on the basis of the question, facts, and assumptions in the plaintiffs' minute dated 27 November 2024 (referred to as the Plaintiff's Primary Expert Evidence), by 31 January 2025 (see order 2).
The minute referred to in the above order contemplated that an expert in mine waste management would be briefed by the plaintiffs to give evidence as to three particular areas:
(a)tailings storage in surface Tailings Storage Facilities (TSFs) generally (see questions 2.1 to 2.3);
(b)waste rock storage in surface Waste Rock Dumps (WRDs) generally (see questions 2.4 to 2.6); and
(c)the sufficiency of tailings and waste rock storage at the Sino Iron Project (see questions 2.7 to 2.9).
Several questions were proposed in respect of each of these three areas. For example, in relation to the first area, concerning TSFs, the minute proposed the following questions:
2.1What technical and economic considerations inform the planning and design of surface TSFs generally, and, in particular, the identification of the footprint of a surface TSF?
2.2Are the following matters relevant to the technical and economic considerations set out in your answer to question 2.1, and if so, how:
(a) the location of the TSF/s;
(b) the nature of the ground upon which the TSF/s are to be built;
(c) the expected volume and other characteristics of tailings to be stored;
(d) the planned rate of production at the mine;
(e) whether, and to what extent, it would be technically and/or economically feasible to effect future raises of the TSF embankments (whether in a downstream, upstream or centreline manner);
(f) the height to which it would be technically and/or economically feasible or preferable to raise the TSF embankments (including both any limit on the height above the ground level and any limit on the height of the embankments in comparison to downstream populations and nearby natural and constructed features);
(g) the footprint over which it is technically and/or economically feasible or preferable to extend the TSF/s in the future, if required;
(h) environmental, subsurface, topographical, hydrological and safety considerations;
(i) whether there is also a need to construct surface WRDs at the same project;
(j) the material (eg waste rock) proposed to be used in the construction of the surface TSF embankments; and
(k) whether there is any limitation on surface footprint requirements arising from the need to use areas for other infrastructure and for topsoil storage?
2.3 In addition to the considerations and matters set out in your answers to questions 2.1 and 2.2, do the following matters affect the process of planning and design of surface TSFs generally, and in particular, the identification of the footprint of a surface TSF, and if so, how:
(a) the fact that knowledge and understanding about the nature, extent and characteristics of the ore body will evolve over the life of the mine;
(b) the potential for unforeseen operational changes to occur over the life of the mine; and
(c) the need to obtain (and possibly amend) various regulatory approvals during the life of the mine, including the fact that the approach of regulators to future approval and variation applications may not be capable of accurate prediction?
On 23 December 2024, by consent, an order was also made to require the first defendant to file a copy of their expert reports on the basis of their minute provided in accordance with the orders made on 11 September 2024 (referred to as the First Defendant's Primary Expert Evidence). The deadline for that was set as 28 February 2025 (see order 3).
The above order was not to include any evidence to be filed in response to the plaintiff's expert evidence. That responsive evidence from the first defendant was to be filed on 10 March 2025 (see order 5).
By order 6 made on 23 December 2024, the plaintiffs were to file their responsive expert evidence by 7 April 2025. The expert conference was also delayed until 14 April 2025 (see order 7).
C. Contentious issues as to expert evidence
As matters have transpired, despite what appears to be comprehensive conferral between the solicitors for the parties, there remain issues in contest on the parties' respective minutes. Those minutes set out the questions to be posed to the experts, and the facts and assumptions which are to underpin those questions. In preparing these minutes, the parties appear to have had regard to the terms of Practice Direction 4.5.2 (Expert Evidence).
The position proposed today by the plaintiffs was to seek an order, as set out in its minute dated 28 January 2025that they be permitted to brief an expert witness in the field of mine waste management in accordance with the questions, facts and assumptions recorded in Attachment A to that minute.
Attachment A, which is a 14 page document, identifies the questions to be posed to the expert (being questions 2.1 to 2.9). Those questions are largely in the form previously outlined to the Court by the plaintiffs, and without any of the disputed amendments proposed by the first defendant.
The order made clear that this would be done without prejudice to any party's right to dispute the facts and assumptions which had been indicated prior to 30 January 2025, or to otherwise object to the admissibility of the witness or documentary evidence.
For its part, the first defendant seeks to adduce expert evidence on three topics, together with facts and assumptions, and also proposes a set of additional facts said to be relevant to the questions posed by the plaintiffs. The first defendant's minute is a very detailed document, running to some 50 pages.
The topics proposed by the first defendant are:
(a)mine waste management (see questions 2.10 to 2.21 in the first defendant's minute);
(b)mine planning (see questions 5.1 to 5.12 in the first defendant's minute); and
(c)mine or town planning or engineering (see questions 8.1 and 8.2 in the first defendant's minute).
In large part, the plaintiffs maintain the questions drafted by the first defendant are irrelevant on the pleadings or inappropriate for various reasons. The exceptions to this are the questions to be posed to a mine or town planning or engineering expert which are set out in questions 8.1 and 8.2, which relate to the alignment and location of a public road such as the Fortescue River Road. I understand the plaintiffs say the questions at 8.1 and 8.2(b) are not opposed, but question 8.2(a) is said to not arise on the pleadings.
There is thus a considerable degree of disagreement between the parties' representatives as to the questions to be posed to the expert witnesses, and the basis on which that should be done.
Some examples will suffice to explain this disagreement.
The first defendant wishes to instruct a mine waste management expert in relation to matters concerning the sufficiency of tailings and waste rock storage at the Sino Iron Project. Several questions are proposed, being questions 2.10 to 2.21. The questions are set out in the first defendant's minute dated 29 January 2025, which was filed on 30 January 2025.
Question 2.10 poses this question:
2.10Having regard to the considerations and matters referred to in your answers to questions 2.1 to 2.8 above (as applicable), are there any alternatives to the Northern TSF and the new and expanded WRDs in the form proposed in the 2023 MCPs for the storage of further waste rock and tailings at the Sino Iron Project and, if so, what are they? In giving your answer, provide details of any alternatives that were available in the past that are no longer available due to the way in which the Sino Iron Project has been developed to the commencement of the proceeding (27 November 2023).
This question is not relevant on the pleadings, according to the plaintiffs. That is, the issue of the existence of alternatives to the facilities proposed in the 2023 MCPs, whether past or present, or available or no longer available, does not arise on the pleadings. The plaintiffs submit that the first defendant does not plead (for example) that it was entitled to refuse to submit the 2023 MCPs because there were alternatives for waste rock and tailings storage, whether 'preferred' or 'comparably desirable', whether past or present, or whether available or no longer available, nor does it identify any such alternatives. To add to the objections, and under cover of that general objection, the plaintiffs say that the meaning of the expression 'comparably desirable', and how it differs (if at all) from 'preferred over', is unclear and apt to cause confusion.
In contrast, the first defendant maintains the issue of the alternatives does arise on the pleadings, when properly understood.
The first defendant also proposes to put to a mine planning expert a series of questions as to that area of expertise, including:
5.1What are the technical and economic considerations informing the life of mine planning of a mining, processing and export operation equivalent to the Sino Iron Project?
5.2 What are the technical and economic considerations informing the planning and design of a multi-user area like Area A?
The plaintiffs maintain these matters do not arise on the pleadings. The plaintiffs have proposed some amendments, such as to question 5.1, but submit that as presently expressed, the questions travel beyond the pleadings, which refer only to life of mine planning of the expansion of the mine pit and waste storage capacity, not other aspects of life of mine planning (as to question 5.1), and that the issue of planning and design of Area A as a multi-user area does not arise on the pleadings even after the amendments in pars 27A to 27C to the proposed Further Amended Defence are made, and if par 94A of that proposed pleading was allowed (as to question 5.2).
One of the additional questions proposed by the first defendant (question 5.5) is objected to on the basis that it calls for a legal opinion as to the operation or impact on the first defendant's contractual obligations.
D. Disposition
The detailed submissions filed on behalf of the first defendant on the morning of the hearing, in conjunction with the various supporting documents provided to the Court by the first defendant, seek to demonstrate the relevance of the disputed questions proposed by the first defendant. The plaintiffs, I understand, maintained their stance that the questions and issues were objectionable as travelling beyond the pleadings.
In the face of the parties' competing positions, the Court was left to consider whether it was appropriate to rule at the hearing on the relevance of the disputed issues.
In the event the Court ruled in favour of the plaintiffs' contentions, the first defendant would necessarily be shut out from adducing expert evidence on matters it contends remain relevant on the pleadings.
The approach I favoured in this regard was to hold over the determination of the relevance dispute until the expert evidence has been exchanged, for resolution at a later date, but in advance of the trial. I have expressed a preference that this occur ahead of the expert conferences. In adopting this approach, I had regard to the following considerations.
Ultimately, it is permissible and appropriate for each party (particularly sophisticated parties represented by experienced counsel and solicitors) to identify the questions, facts, and assumptions which that party considers should be put to the experts it has briefed, for the purposes of obtaining expert evidence at the final trial. The identification and drafting of these matters through the Court-ordered process, and in accordance with PD 4.5.2, should not be seen as an inflexible or static mechanism. Indeed, it may be that, once directions are made by the Court as to the particular questions, facts and assumptions to be given to an expert, an expert then considers it necessary to identify additional assumptions to ground his or her opinion, or to request additional documentation from a party.
The process of briefing experts in a complex action may be a dynamic one.
There are some caveats to this process and to the latitude given to such parties. Where it is possible to see that the questions, facts and assumptions:
(a)are irrelevant to the matters in issue having regard to a fair reading of the pleadings in the action;
(b)are vague or confusing; or
(c)can be seen as unlikely to assist the Court to determine the matters in issue; or
(d)might give rise to serious concerns as to whether the goal and objects in O 1 r 4A and O 1 r 4B RSC will not be adhered to,
then the Court may intervene and decline to permit that process to be further pursued.
What I have just said is not intended as an exhaustive statement, nor should it be elevated to a point of principle, but it represents an indication of the likely occasions in which the Court would intervene.
I pause to observe that, in the present case, the relevant pleadings to examine are the pleadings in this present action, not the prior action between these parties, which was tried before Kenneth Martin J in 2022. The transcript will record an interchange to this effect between the Court and both senior counsel.
The Court is naturally desirous to avoid the proliferation of supplementary expert reports close to trial which may arise where the expert process goes awry, or where there has been confusion by the parties or the expert as to the true issues in dispute, in respect of which expert opinion evidence is sought. The Court should be vigilant to ensure the process remains on track and has utility, subject to the degree of latitude which may be given to the types of parties I have mentioned, particularly where the disputes concerning expert evidence involve contestable issues which may not be capable of resolution well in advance of the trial.
Ultimately the purpose of the use of expert evidence must be borne in mind, which is 'for the Court to receive the benefit of the objective and impartial assessment of an issue from a witness with specialised knowledge. The Court is often assisted by expert evidence where the subject matter of the proceedings is complex': PD 4.5.2, [1].
Further, the directions given by the Court in relation to expert evidence orders:
…should be consistent with the overriding objectives contained in O 1 r 4A and 4B. The Court's objective is to make timely, efficient, fair and effective use of expert evidence. It will make directions on a case-by-by case basis, taking into account the nature, scope and complexity of the issues in the case and whether the costs are proportionate to the matter in dispute and financial position of the parties: PD 4.5.2, [7].
Further still, expert evidence should promote the following purposes:
(a) to encourage the early identification of issues in dispute that will be the subject of expert evidence;
(b) to improve the utility of expert evidence by ensuring that it is focused on the issues genuinely in dispute; and
(c) to make use of the existing pre-trial processes at the earliest practicable opportunity: PD 4.5.2, [8].
In the particular circumstances of the present action, being mindful of the extensive work undertaken by the parties to date to prepare questions, facts and assumptions for the purposes of the briefing of experts, I formed the view that it would be premature to reach a final decision at the hearing as to the disputed issues. I was particularly conscious that the expert evidence issues raised by the parties are complex in nature and it would be unwise for the Court at this juncture to completely shut out either of these parties from developing its case further.
There is necessarily a cost to each party in allowing such a process to continue, and a cost to the other party in needing to review and potentially respond to matters they say are not relevant. In the context of this case, and given the size and financial capacity of the principal protagonists and their history of disputes, I did not regard the potential for wasted costs on either side as being the most significant consideration in this assessment.
E. Conclusion and orders
I accordingly made directions at the hearing for the parties to bring in minutes in accordance with their previous respective proposals for the questions, facts and assumptions to be briefed to the experts, with the parties having the right to dispute the facts and assumptions as previously indicated, and preserving their ability to object to the admissibility of witness or documentary evidence.
The parties have also been directed to confer as to a convenient date for a hearing to resolve any insoluble relevance issues concerning the expert evidence, to be listed ahead of trial.
Finally, as proposed by senior counsel for the first defendant, the parties will prepare a consolidated set of the objections to the questions, facts and assumptions, for the assistance of the Court and the parties at the proposed future hearing.
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
31 JANUARY 2025
0
1