Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 4] - [2021] WASC 451

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   SINO IRON PTY LTD -v- MINERALOGY PTY LTD [No 4] [2021] WASC 451
CORAM:   KENNETH MARTIN J
HEARD:   7 DECEMBER 2021
DELIVERED          :   10 DECEMBER 2021
FILE NO/S:   CIV 1915 of 2019
BETWEEN:   SINO IRON PTY LTD
First Plaintiff
KOREAN STEEL PTY LTD
Second Plaintiff
CITIC LIMITED
Third Plaintiff
AND
MINERALOGY PTY LTD
First Defendant
CLIVE FREDERICK PALMER
Second Defendant
STATE OF WESTERN AUSTRALIA
Third Defendant

Catchwords:

Practice and procedure - Application for leave to amend statement of claim - Leave required under court's prior case management directions - Proposed amendments opposed - Discretionary considerations towards granting leave - Trial pending - Repercussions of amendment if allowed considered - Explanation for amendments provided - Terms of leave granting amendments - Consequential leave to amend responsive defence allowed - Costs thrown away (if any) by reason of amendments allowed

Legislation:

Nil

Result:

Leave to amend on the basis of plaintiffs paying costs thrown away by amendment, if any

Category: B

Representation:

Counsel:

First Plaintiff	:	Mr J H Karkar QC, Mr J H Kirkwood & Mr T Maxwell (via video-link)
Second Plaintiff	:	Mr J H Karkar QC, Mr J H Kirkwood & Mr T Maxwell (via video-link)
Third Plaintiff	:	Mr J H Karkar QC, Mr J H Kirkwood & Mr T Maxwell (via video-link)
First Defendant	:	Mr P Dunning QC,Mr K S Byrne, Mr D Fawcett, Mr M Karam & Mr H Cooper (via video-link)
Second Defendant	:	No appearance
Third Defendant	:	No appearance

Solicitors:

First Plaintiff	:	Herbert Smith Freehills
Second Plaintiff	:	Herbert Smith Freehills
Third Plaintiff	:	Herbert Smith Freehills
First Defendant	:	Kane Jones
Second Defendant	:	In person
Third Defendant	:	State Solicitor's Office

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

AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
CITIC Ltd v Mineralogy Pty Ltd (No 3) [2020] WASC 398
Mann v Bankwest - A Division of Commonwealth Bank of Australia [2020] WASCA 35

KENNETH MARTIN J:

Introduction

I am dealing with the plaintiffs' application by chamber summons of 29 November 2021 (folio 296) seeking leave to further amend their current statement of claim pleading - which is the plaintiffs' amended statement of claim (ASOC) of 26 October 2021. Leave to amend is required by reason of an earlier case management direction issued to that effect.
The application seeking leave to amend is supported for the plaintiffs by two affidavits of Mr David William John, the partner of the plaintiffs' lawyers of record. His first affidavit was sworn 29 November 2021 (folio 297). It appends as attachment DWJ-2 what is, in effect, a minute of the plaintiffs' as proposed further amended statement of claim ('FASOC') - which, as Mr John explains, was circulated under cover of the plaintiffs' lawyers' communication to the lawyers of record (then) for the first and second defendants at 29 November 2021 (see attachment DWJ-1 to Mr John's affidavit of 29 November 2021) requesting then the consent of the first and second defendants to leave being granted for the proposed FASOC amendments to be made by consent.
The 29 November 2021 communication by the plaintiffs' lawyers referred to the content of the most contemporary amended defence pleading of the first defendant of 12 November 2021 (folio 290) ('the 4FAD'). The Freehills communication was sent in circumstances where there was a programmed 'health check' directions hearing for the trial of the action scheduled for 30 November 2021 - before me as case manager and putative trial judge. The Freehills communication to the first and second defendants relevantly said:
Paragraphs 1AGG and 147A of the 4FAD [of 12 November 2021] allege that prior to the filing of the ASOC the plaintiffs had never made a request of the first defendant [Mineralogy Pty Ltd] for the areas of land as set out in Annexure 11A of the ASOC (being the MCP Subset of Requested Areas).
Our clients do not agree with this contention, but because it has been raised by Mineralogy, the plaintiffs propose to file a Further Amended Statement of Claim, in the form accompanying this letter (FASOC), to make it clear that the plaintiffs consider that the 2017 MCPs constituted a request for tenure, including access to and use of the MCP Subset of Requested Areas.
Accordingly, the FASOC contains new paragraphs 147B and 149A which address this issue and makes consequential amendments to paragraphs 151-154, 167-169, 176-177, 185, 188, 190, 195, 198, 199 and the glossary. The amendments rely only on documents already referred to in the Amended Statement of Claim and contained in our client's tender list dated 20 October 2021.
It has also come to our attention that there was a minor error in the map contained in Annexure 11A. Accordingly, a corrected map has been inserted in Annexure 11A ... (my emphasis in bold)

Programming orders

At the directions hearing on 30 November 2021, in light of the indication from the first defendant that the proposed amendments under the circulated minute of FASOC would be opposed, I issued programming orders then for the exchange of written materials before a special appointment for a hearing of the (opposed) application seeking leave to amend the ASOC in the terms of the minute of FASOC

- scheduled for 7 December 2021(see folio 299).
Pursuant to those 30 November 2021 directions, there came to be filed a further affidavit of Mr John sworn 2 December 2021 in support of the leave to amend application (folio 303).
Also filed on 2 December 2021 were the plaintiffs' written outline of submissions in support of their application for leave to amend in terms of the minute of FASOC (folio 302). Thereafter, on 6 December 2021, a written outline of submissions of the first defendant opposing leave to amend were received (folio 306).
Shortly after the special appointment hearing had commenced at 11.00 am on 7 December 2021, I was informed that an affidavit of Kane Christopher Jones had been submitted in support of the position of the first defendant (Mineralogy) opposing the application (folio 307). I needed to adjourn the hearing for about 15 minutes in order for that late affidavit to be considered. Subject to an excision of subpars 22(a) and 22(b) of the affidavit (which were objected to), that affidavit of Mr Jones was ultimately received. As explained by senior counsel for the first defendant at the hearing, the content of the Jones affidavit was essentially to provide the source documentary materials as referred to in the first defendant's written outline of submissions.

The second affidavit of Mr John and plaintiffs' lawyers' letter of 29 November 2021

The second affidavit of Mr John sworn 2 December 2021 had attached (as DWJ-1), a further letter which had been emailed by Freehills to Mineralogy on 29 November 2021 (Mr Jones) - and expressed as a new request if required at then, for extra tenure in relation to the Sino Iron Project as explained.
That 29 November 2021 communication raises issues going beyond the present (opposed) application merely seeking leave to amend the proposed FASOC - albeit the subject matter is related and that controversy is now programmed to be dealt with at a further special appointment hearing fixed for Monday, 13 December 2021.
It is convenient to expose a little of the related controversy at this time in order to provide some surrounding context.

Context

The 29 November 2021 communication to Mineralogy found as attachment DWJ-1 to Mr John's second affidavit had stated, in part, as follows:
Most recently, with a view to narrowing the issues in dispute in the Proceeding, the statement of claim in the Proceeding was amended to confine the scope of the tenure, access and use rights that have been the subject of relief in the Proceeding to areas described as the 'MCP Subset of Requested Areas' and depicted in the map in Annexure 11A to the statement of claim. All of the areas in question were identified in the MCPs and formed part of the earlier 2018 Tenure and Re-purposing Requests.
Mineralogy is evidently taking the position that it does not have to engage in relation to this more confined scope of the tenure that is the subject of relief, because (according to Mineralogy) it has not previously been asked to grant rights over only the MCP Subset of Requested Areas. Sino Iron and Korean Steel do not accept that this is an accurate characterisation of events or a sound answer to the pleading. Nor is it a constructive approach to adopt when it comes to seeking to resolve the real issues in dispute between the parties.
In the interests of:
· dealing with this position taken, and the asserted objection by Mineralogy; and
· making it clear that our clients only seek the minimum tenure necessary to achieve the objectives of the MCPs,
and without prejudice to the separate arguments that the objection is unfounded, on behalf of Sino Iron and Korean Steel, we now make clear, for the avoidance of any doubt, that Sino Iron and Korean Steel ask that Mineralogy agree in writing with each of them that:
(a)the Site Lease Area, within the meaning of clauses 1.1 and 4.2 of each of the Sino Iron MRSLA and Korean Steel MRSLA, be amended to include the area shaded in pale blue in the attached map, which area is within the development envelope depicted in Annexure B, Plan 1 of the MCPs, for the purposes of implementation of the MCPs and the Approved Proposals (as defined in the MCPs) of the MCPs. For the avoidance of doubt, we have been instructed to note that to the extent that the area shaded in pale blue on G08/53 is next to the north south road, it only abuts that road and does not cross over that road; and
(b) Mineralogy grants to each of Sino Iron and Korean Steel a licence to access and use, for the purposes of implementation of the MCPs and the Approved Proposals, the areas shaded in dark blue in the attached map (to the extent that Sino Iron and Korean Steel do not already have a licence in respect of those areas).
...
That communication foreshadowed that if Mineralogy did not agree within seven (7) days to accede to the request made as the subject of the above mentioned 29 November 2021 letter, that Freehills' clients would assume that Mineralogy had refused that request and as well, that Mineralogy:
... continues to refuse to join with Sino Iron and Korean Steel in submitting the MCPs to the Minister for approval. In those circumstances, Sino Iron and Korean Steel will issue a new proceeding on the basis of those refusals and seek to have it consolidated with the Proceeding.
Mr John's second affidavit attaches as DWJ-2 a foreshadowed new writ of summons with an appended proposed statement of claim - indicated as a subject of a consolidation application by the plaintiffs to be made within the present proceeding. That foreshadowed consolidation application by the plaintiffs is the subject of the special appointment hearing on Monday, 13 December 2021.
Presently, however, I return to deal with the opposed application seeking leave for the plaintiffs to amend in the terms of the minute of FASOC found as attachment DWJ-2 to Mr John's first affidavit of 29 November 2021.

The key amendments

The key amendments concerning the basis for ascertainment of a 'request' made to Mineralogy for extra tenure (as proposed under the minute of FASOC) can, as indicated by the accompanying Freehills covering communication of 29 November 2021 (attachment DWJ-1 to Mr John's first affidavit), be found under the proposed paragraphs 147B and 149A. I propose to set out in full below those primary amendments in respect of which leave is sought in due course. Before that, however, I should indicate that it is necessary to see these proposed FASOC amendments in context. To that end, I note that they present in what is otherwise already a very long and complex statement of claim pleading - and at a section bearing the heading, 'Requests Concerning Tenure And Re‑purposing' and then, under the subheading, 'Requests for further necessary tenure'.
It will be remembered that the present action was commenced in the Federal Court of Australia (West Australian District Registry) now some time ago. That was at 23 October 2018. On the same day, the plaintiffs' 173‑page statement of claim was filed to accompany the commencement of that originating process in the Federal Court. Subsequently, the proceedings were transferred to and reached this court on 25 May 2019 by orders in the Federal Court to that object, made under the national cross-vesting legislation regime (folio 43).
In the original statement of claim par 147 has, from inception, read and continues to read in these terms:
147.On 29 March 2018, CPMM, on behalf of Sino Iron and Korean Steel, requested that Mineralogy agree in writing with each of Sino Iron and Korean Steel that the Site Leased Area, within the meaning of clauses 1.1 and 4.1 of each of the Sino Iron MRSLA and the Korean Steel MRSLA, be expanded to include certain further areas falling within the footprint of the 2017 MCPs (Further Necessary Tenure Request).
Particulars
Letter from Chen Zeng (CPMM) to Palmer (Mineralogy), 29 March 2018. A copy of this document is in the possession of the plaintiffs' solicitors and may be inspected by appointment. The map in Annexure 11 to this statement of claim depicts the proposed new Site Lease Area requested in the Further Necessary Tenure Request.
The plaintiffs' statement of claim did not alter at all over a three year period between 23 October 2018 and 26 October 2021 as this action has progressed through its interlocutory stages towards a trial - now fixed to commence in this Court on 14 February 2022 for some 10 weeks.

An earlier amendment by the ASOC

On 26 October 2021, under consent orders submitted as being agreed between the parties on the same day, the plaintiffs filed their amended statement of claim (ASOC) (folio 259). I elaborate upon the circumstances surrounding that amendment to the statement of claim later in the reasons.
Presently, however, I note that the 26 October 2021 ASOC, by its new pleas, had then introduced a further tenure request plea (seen under par 147A) which was being added to the pleading at that time. That amendment, as seen, had introduced a further map by way of another Annexure added to the statement of claim pleading. This was the new map introduced then as Annexure 11A to the ASOC.
Newly introduced ASOC par 147A at 26 October 2021 read in terms:
Relevantly, the areas covered by the Further Necessary Tenure Request included the areas highlighted in blue on the map in Annexure 11A to this statement of claim, being areas required for the purposes necessary or incidental to the implementation of the 2017 MCP (MCP Subset of Requested Areas).
As indicated, the amendments seen as carried under the ASOC at 26 October 2021 were then introduced with the consent of the first and second defendants. In those uncontroversial circumstances, leave to so amend on 26 October 2021 was granted (see folio 258). No objection to the ASOC changes was forthcoming from the third defendant, that is, from the State of Western Australia.
Next, as a matter of further context before turning to evaluate the further proposed amendments under the minute of FASOC - it is convenient to see how the first defendant responded to the pleading amendment changes that had been carried under the ASOC of 26 October 2021.
The first defendant, Mineralogy's revised and amended defence duly emerged at 12 November 2021 (folio 290). This defence pleading by the first defendant was its fourth further amended defence to the amended statement of claim ('the 4FAD').
Relevantly, towards ASOC pars 147 and 147A, I need to mention some aspects of the pleas by the first defendant's defence, at pars 147 and 147A under the heading 'Alleged request for further necessary tenure',
Mineralogy pleaded by the 4FAD:
147.As to paragraph 147, the first defendant:
a.admits the letter was sent by CPMM on 29 March 2018;
...
f.says that Mineralogy is not able to agree the Further Necessary Tenure Request because to do so would breach the MRSLAs and the FCD;
...
gA.says that the request and tenure sought:
(i)would inhibit and impair the use of the Mineralogy tenements for any other project or purposes under the State Agreement, including for reasons that the proposed areas:
(1)bisect the Mineralogy tenements in a manner that would prevent movement through the tenements;
(2)inhibit access to the Port of Cape Preston;
(3)prevent access to the mining leases to the North and to the South of Mining Leases M08/123 to M08/125 (which are occupied by Sino Iron and Korean Steel);
...
(iv)is not sought to accommodate a genuine requirement for areas to prosecute the Sino Iron Project and the true purpose is to prevent, impair or inhibit Mineralogy including from using its other tenements in the Mineralogy tenements;
...
Mineralogy also pleaded by way of a response to the new plea made under par 147A of the ASOC - its own plea seen under par 147A of its 4FAD. This defence plea relevantly read in the following terms:
As to paragraph 147A, the first defendant:
a.does not admit that the areas the subject of the Further Necessary Tenure Request included the areas highlighted in blue on the map in Annexure 11A to the statement of claim as despite reasonable enquiries, it remains uncertain as to the truth or falsity of the allegations;
...
c.says that at no material time did Sino Iron or Korean Steel request that Mineralogy agree that the Site Lease Area be expanded to include only the MCP Subset of Requested Areas; (my emphasis in bold)
I pause to observe upon the plea seen above under FAD subpar c. of par 147A. That defensive plea manifested an express denial of a 'request' made to Mineralogy for it to agree to an expansion of the site lease area in respect of the as defined 'MCP Subset of Requested Areas' - which essentially is a reference to the areas highlighted in blue on (the newly introduced by the ASOC) Annexure 11A.
For convenience, I incorporate in the Schedule to these reasons, the entirety of the pleas as made by Mineralogy under par 147 and par 147A of its 4FAD of 12 November 2021. For present purposes, however, it is the denial of any request to it in the plea by Mineralogy as seen under par 147Ac. - which the plaintiffs say has led them now to seek leave to amend further - by the proposed FASOC (leave to amend being required under my directions issued earlier in the case management of this action).
Next, I turn to briefly discuss the principles underlying an application for leave to amend and to more explicitly canvass the proposed FASOC amendments - as sought to be introduced as the primary changes under the proposed pleas by par 147B and par 149A.

Principles underlying required leave to amend and the proposed significant amendment pleas by the proposed FASOC

There was no disagreement between the parties concerning the principles governing an application seeking leave to amend a pleading. I had occasion relatively recently to discuss those principles and effectively as between the same litigants - by my reasons provided in CITIC Ltd v Mineralogy Pty Ltd (No 3) [2020] WASC 398 at [19] - [21]. Clearly, the law as explained by the High Court in AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 is of primary importance. Such principles were also recently discussed by Mitchell, Beech and Vaughan JJA in Mann v Bankwest - A Division of Commonwealth Bank of Australia [2020] WASCA 35 at [79] - [80].
Distilling the leave to amend principles towards the present application, I will approach the matter now on a basis of asking, at the present time in this litigation, bearing in mind the expansive dimensions of a looming significant civil trial commencing at 14 February 2022, whether, in the overall interests of justice, leave should be given to amend in the proposed FASOC terms sought by the plaintiffs. Sub‑issues which will arise around the current evaluation include a weighing together of the following issues, namely:
(a)how will the amendments impact or affect the ability to fairly conduct and complete the looming 10-week trial;
(b)are there any significant interlocutory ramifications towards discovery, expert reports or further evidence that are carried by the proposed amendments if allowed;
(c)how do the proposed amendments, if allowed, bear upon or against the resources of the counter party in the present litigation;
(d)have the plaintiffs provided a sufficient explanation by justifying the late amendments as sought and is that explanation sufficiently convincing in all the circumstances;
(e)are the proposed amendments coherent and fully particularised, bearing in mind the proximity of the action to its trial;
(f)is there potential utility and merit in the proposed amendments in the action - because if it were clear that there is no arguable merit in the amendments and that they were hence only seeking to introduce a trivial, irrelevant or unduly resource consuming distraction delivering unnecessary or oppressive burdens to the other side at an intensely busy preparatory stage of the litigation before the trial - then that would be a significant consideration against allowing the proposed amendments;
(g)am I in a position presently to form a reliable view about the likely forensic effects of the proposed amendments upon the looming complex trial;
(h)has the counter-party by opposing leave to amend, identified a position for itself of genuine forensic prejudice in the conduct of its defence at the looming trial;
(i)are there any negative repercussions for other third parties by reason of the amendments as proposed; and
(j)bearing in mind an award of costs to the counter-party is no longer a sufficient palliative to support a late amendment, is it, at the end of the day, fair to all participants that the proposed FASOC amendments nevertheless be allowed?

Bearing in mind all such considerations, and taking account of the extensive rival written submissions as came to be exchanged as between the plaintiffs and the first defendant reflecting their respective rival positions - I can proceed to set out the significant proposed FASOC paragraphs at issue, namely, par 147B and par 149A.
I should observe beforehand that the proposed plea under par 147B is introduced under a slight further change to the ASOC subheading - which would change the word 'request' used in the phrase 'request for further necessary tenure' - to the plural by adding an 's' to the word 'request'.
I also observe that the subheading preceding par 149A would seek to add further words to that subheading, so that it would then read 'Mineralogy failure and refusal to grant Further Necessary Tenure Request and 2017 MCP Tenure Request' (additional words underlined).

The proposed FASOC key amendments in full

The primary proposed amendments of the plaintiffs by the proposal read in the following terms, including their extensive particulars:
...
147B.Further or alternatively, the request by CPMM, on behalf of Sino Iron and Korean Steel, that Mineralogy submit the 2017 MCPs to the SA Minister for approval under the State Agreement, referred to in paragraph 137 above, also constituted, and was understood by Mineralogy to constitute, a request that Mineralogy grant Sino Iron and Korean Steel tenure in, including access to and use of, the MCP Subset of Requested Areas (the 2017 MCP Tenure Request).
Particulars
(i)    The 2017 Sino Iron MCP [CPM.639.275.8106] and the 2017 Korean Steel MCP [CPM.639.275.8158] included a development envelope and conceptual project layout in Appendix B and stated, on page 10, among other things:
"Appendix B shows the conceptual layout for continued operations within a development envelope. Appendix B Plan 2 identifies the tenure on which the infrastructure … is to be located. All of the tenure required for the purposes of this Proposal is wholly within Area A as defined in the IOPA.
The development envelope has been designed to allow for both construction and ongoing access during operational maintenance activities throughout operations. The development envelope will allow for the construction of other temporary and permanent infrastructure …
Plan 1 in Appendix B shows the current development envelope (green) and additional development envelope required by this Proposal (blue)."
Appendix B to the 2017 MCPs is reproduced in Annexure 10 to this statement of claim. The additional development envelope depicted in blue in Appendix B comprised the MCP Subset of Requested Areas (but also includes areas in respect of which Sino Iron and Korean Steel already had tenure, access or use)
The additional tenure sought, and the activities proposed to be undertaken within it, are further summarised in paragraph 138(b) above and described at pages 3–9 and 13–24 of the 2017 MCPs.
(ii)     On 21 December 2017, Mr Palmer's assistant, Ms Sarah Mole, on behalf of Mineralogy, sent a letter to CPMM [MPL.075.001.2101] stating, among other things: "There is no commercial agreement between Mineralogy and Citic companies in respect of any of the land or resources contained in your proposal. There must be if you wish these matters to progress. … These matters are a prerequisite to Mineralogy considering granting any further rights to any Citic Company. Secondly, Citic Subsidiaries will need to agree commercial terms to acquire any rights or interests from the Australian Party owning them before any proposal in respect of such property or rights can be properly considered by Mineralogy." (Emphasis added.)
(iii)    On 2 May 2018, Mr Palmer on behalf of Mineralogy sent a letter to CPMM [CPM.634.001.4312] annexing Appendix B Plan 1 from the 2017 MCPs and setting out the position of Mineralogy in respect of each of the areas depicted in it.
(iv)    The 2017 MCP Tenure Request was preceded by a similar request contained in the 2016 MCPs [CPM.530.011.4112], [CPM.530.011.4130], which included a conceptual layout in Appendix A [CPM.530.011.4148] and stated, on page 7, among other things:
"Appendix A shows the conceptual layout for continued operations within a development envelope.
Appendix A also identifies the tenure on which the infrastructure … is to be located. To the extent additional tenure is required for the purposes of this Proposal, it is wholly within Area A and includes 'Ancillary Tenements' as defined in the IOPA.
The development envelope has been designed to allow for both construction and ongoing access during operational maintenance activities throughout operations. The development envelope will allow for the construction of other temporary and permanent infrastructure …
Appendix A shows the current development envelope (green) and additional development envelope required by this Proposal (blue)."
Appendix A to the 2016 MCPs is reproduced in Annexure 9 to this statement of claim.
The additional tenure sought, and the activities proposed to be undertaken within it, are further summarised in paragraph 133(b) above and described at pages 2–6 and 8–16 of the 2016 MCPs. They were also described in the letter dated 9 December 2016 from CPMM to Mr Palmer on behalf of Mineralogy [CPM.530.011.4110] enclosing the 2016 MCPs, and subsequent letters from CPMM to Mineralogy dated 10 March 2017 [CPM.530.011.4281], 25 March 2017 25 March 2017 [CPM.639.270.1762], 5 April 2017 [CPM.639.270.1774] and 14 November 2017 [CPM.634.001.3328].
(v)     On 23 December 2016, Mr Palmer on behalf of Mineralogy sent a letter to CPMM [CPM.634.001.2842] stating, among other things: "Mineralogy … has entered into commercial arrangements with other companies in respect of the land that your purported proposals relate to. … Consequently, no land the subject of your correspondence and attachments will be made available to Sino … or Korean. No commercial agreement has been entered into or discussed with Mineralogy in respect of such areas. … Sino and Korean do not need the amount of land that such proposals encompass to carry out their projects. … We remind you the title to the lease area your companies seek is owned by Mineralogy …." (Emphasis added.)
(vi)    On 10 April 2017, Mr Palmer on behalf of Mineralogy sent a letter to CPMM [CPM.634.001.2969] stating, among other things: "Your group is seeking additional Mineralogy land at Cape Preston which … does not appear to be justified." (Emphasis added.)
(vii)   On or about 24 April 2017 Mineralogy prepared an internal memorandum for Mr Palmer on the 2016 MCPs [MPL.075.001.0954] which described the additional tenure sought and the activities proposed to be undertaken on that tenure.
(viii) On 19 May 2017, Mr Palmer on behalf of Mineralogy sent a letter to CPMM [CPM.624.001.1861] stating, among other things: "In respect of the State Agreement, Sino Iron and Korean Steel are co-proponents. They cannot submit any proposals under the State Agreement without Mineralogy as proponent submitting them. The first step in any proposal is to consider the tenure of the land and, at the moment, Sino Iron and Korean Steel tenure is limited to what was commercially agreed in 2006. …
Likewise, Sino Iron and Korean Steel have not complied with the terms of the MRSLA and the Project Agreements and will need to commercially and legally comply if with those agreements if Sino Iron seek to acquire any tenure of land from Mineralogy." (Emphasis added.)
(ix)    On 21 June 2017, Mr Palmer on behalf of Mineralogy sent a letter to CPMM stating, among other things: "In relation to Citic's requests for additional land and tenure, Mineralogy can enter normal commercial negotiations in that regard once the need is specified in proper technical terms and areas properly surveyed that support production requirements of proposals under the State Agreement." (Emphasis added.)
(x)     On 17 July 2017, Mineralogy sent a letter to Allens [CPM.634.001.3235] stating, among other things: "The fact of the matter is that your client's expansion proposals are sought to be carried out on land they do not own have any tenure. … Your client must have tenure for land upon which it seeks an approval or seeks that our client be a proponent for any proposal." (Emphasis added.)
(xi)    On 20 April 2018, Mr Chris Spielvogel of Mineralogy sent an email to Mr Nui Harris of Mineralogy [MPL.075.001.1973] forwarding a copy of the 2016 MCPs and Appendix A and stating: "Mine Continuation Proposals. The attached map has what they have now in green and what they want in blue." (Emphasis added.)
...
149A.Further or alternatively, when failing and refusing to submit the 2017 MCPs, as referred to in paragraph 140 above, Mineralogy failed and refused to grant Sino Iron and Korean Steel tenure in, including access to and use of, the MCP Subset of Requested Areas, as requested in the 2017 MCP Tenure Request.
Particulars
The particulars to paragraphs 134, 140 and 147B above are repeated. As set out in particular (i) to paragraph 147B above, the additional development envelope depicted in blue in Appendix B of the 2017 MCPs comprised the MCP Subset of Requested Areas (and areas in respect of which Sino Iron and Korean Steel already had tenure, access or use).

Mineralogy's opposition to leave to amend

Significantly, the proposed FASOC amendments are opposed by Mineralogy - on the basis of them being suspected to carry along with them a new cause of action and so, to not merely provide a defensive response against Mineralogy's par 147Ac. plea - instead denying that Mineralogy had not been requested by the plaintiffs to grant them extra tenure - specifically in respect of the MCP Subset of Requested Areas (ascertained by reference to Annexure 11A. I observe for present purposes that a proposed correction to the map attached at Annexure 11A of the ASOC, as it came to be explained by senior counsel for the plaintiffs, Mr Karkar at the hearing, would present as only a minor and innocuous adjustment to the marked lines at northern dimensions of that map (see ts 809), narrowing slightly the area sought.
A significant component of the resistance stance by the first and second defendant against leave to amend seemed to me to be grounded upon the allegedly very significant change of position made to the plaintiffs' trial case - leading to the first and second defendants needing to deal with, in effect, a new case seeking the extra tenure - framed newly by reference to the new map that is Annexure 11A and with the plaintiffs' lesser tenure request only emerging very late in this action, at 26 October 2021 - as the 'MCP Subset of Requested Areas'.
For instance, by the opposing written submissions at par 21(a), the first defendant says that it had been
… preparing for trial on the case as pleaded, including that the Plaintiffs relied solely on the Further Necessary Tenure Request. Despite three years of careful case management by the Court, the plaintiffs are now substantially changing their position when the trial is imminent and in the middle of deadlines for the exchange of objections and expert evidence;
Allied to that objection stance taken by Mineralogy, were arguments that the proposed amendments under the Minute of FASOC 'are meritless': see par 20 of the first defendant's written submissions and a contention that the 'Further Necessary Tenure Request' of 29 March 2018 (referred to in the particulars to par 147 of the ASOC) was '… inconsistent with any common understanding that the 2017 MCPs constituted a request for (lesser) tenure over the MCP Subset of Requested Areas …'.
It was also argued that the FASOC proposed amendments had newly put at issue Mineralogy's state of mind and that this new plea would inevitably expand the scope of the dispute and indeed expand the scope of discovery required to be given: first defendant's written submissions par 21(b).
As seen, a component of proposed FASOC par 147B plea does indeed refer to the request to Mineralogy to submit the 2017 MCPs to the SA (State Agreement) Minister for approval under the State Agreement - as constituting what '… was understood by Mineralogy to constitute, a request that Mineralogy grant Sino Iron and Korean Steel tenure in, including access to and use of, the MCP subset of requested areas …'
Other contentions of suggested forensic prejudice suffered by Mineralogy and put against leave to amend were advanced by reference to the inappropriateness and inadequacy of any compensatory costs order and the undesirable opening up of '… a new front of disputation' that would again 'increase the inevitable strain of the litigation and adverse effects on the First and Second Defendants'.
The lack of an adequate explanation by the plaintiffs for the further amendments was also contended (see the first defendant's written submissions par 22), expressed on the basis that 'after three years of careful case management at public expense, after multiple requests by the plaintiff for trial dates and finally the allocation of three months of Court time to hear their claims, they abandon their current case and plead a new case.' The lack of any adequate explanation applying AON Risk principles, is said to be a powerful and weighty factor against leave to amend.

Conclusions

On my assessment a good deal of the points as raised in contended opposition by Mineralogy against leave to amend - on a basis of it needing to deal with a change of position by the plaintiffs' case by reference to the Annexure 11A and the MCP Subset of Requested Areas, are raised too late and are misdirected.
The ASOC amendments under par 147A and which introduced at then, the 'Subset' concept for Requested Areas at 26 October 2021, were pleading amendments made by consent at the time.
It was from that point that this lesser tenure 'Subset' concept towards the relief as sought at trial by the plaintiffs (at ASOC prayer for relief at par Bb.) came to be introduced into the action as a potential issue. No opposition was articulated at the time.
The introduction of that subset, lesser tenure request concept had been unambiguously stated and was explained at the time by the plaintiffs' lawyers. This could not have been overlooked.
Supporting the application for leave to make the ASOC amendment as at 26 October 2021, were a number of documents filed at that time - including another affidavit of Mr David William John, sworn 26 October 2021 (folio 256).
Attachment DWJ1 to that affidavit was Mr John's letter by Freehills to Mr Jones of Mineralogy, of 20 October 2021. The letter, seeking the consent of the all defendants' lawyers at that time to the proposed amendments under the ASOC, read in terms:
In the course of preparing their evidence, the plaintiffs have endeavoured to identify ways in which the issues in dispute may be narrowed at trial.
To that end, we enclose a proposed amended statement of claim (PASOC) which incorporates the following amendments:
1.The areas in relation to which relief is sought under prayer for relief B(a) are proposed to be narrowed. These amendments are contained in paragraphs 147A, 151 - 154, 168 - 169, 176 - 177, 185, 188, 190, 195, 198, 199, prayer for relief B(a) and Annexure 11A of the PASOC. The language of prayer for relief B(b) is also proposed to be clarified to make clear that the alternative relief sought includes access to or use of land which does not involve a sublease.
2.The plaintiffs do not propose to press separate claims arising from the failure and refusal to submit the 2016 MCPs themselves. However the plaintiffs continue to rely on the circumstance that by the time Sino and Korean provided the 2017 MCPs to Mineralogy on 18 December 2017, Mineralogy had been in possession of the 2016 MCPs and Sino and Korean had been corresponding with Mineralogy about them, for approximately 12 months. These amendments are contained in paragraphs 140 - 146, 166 - 167, 174 - 175, 184, 188, 190, 194, 198 and 199 of the PASOC. (my emphasis in bold)
Mr John's letter of 20 October 2021 concluded by seeking that the defendants consent to a grant of leave to make those amendments and attaching a minute of proposed consent orders providing for that leave and for there to be leave in respect of the filing of any consequential amended defences. That occurred.
In due course, the first and second defendants by their lawyers of record on 26 October 2021 did sign the memorandum of consent orders

- agreeing then to the plaintiffs receiving leave to amend the original statement of claim in the form appended to the affidavit of Mr John sworn 26 October 2021. Various consequential orders were also made in respect of the defendants' pleadings by way of their responses. Costs were ordered to be in the cause.
Consequently, on my assessment it is now too late in November 2021 for the first and second defendants to complain over the Annexure 11A map and Subset Tenure Request truncation in the plaintiffs' case for trial - as carried under those earlier and then uncontroversial ASOC amendments.
It may be that in consenting to such amendments to the statement of claim by way of the ASOC that the first and second defendants at the time believed they held a perfect responsive answer by way of then, a complete defensive response up their sleeve - namely to respond along the lines that Mineralogy had not before been asked to grant the defendants the extra tenure as referenced by any (lesser) 26 October 2021 as formulated Subset basis - framed by a reference to the Annexure 11A map. But such a view is not at all to the point to establish true forensic prejudice. The door was opened for the changes to the plaintiffs' case then by the ASOC without objection.
It is important to observe that the nature of the presently proposed amendments as are sought under the Minute of FASOC by pars 147B and 149A on my assessment, by their text, do seek to respond back against the defence plea seen under par 147Ac. of the 4FAD by Mineralogy - alleging that there had been no such request made to it for such lesser extra tenure on the basis of the Annexure 11A map area.
By my reading of the proposed FASOC pleas, what they seek to do by par 147B (which is also what the plaintiffs say they do), is to contend at the looming civil trial that the eleven (11) as seen and as identified passing documentary communications - as detailed in those particulars, had:
(a)constituted a sufficient request on behalf of the plaintiffs; and
(b)had been understood by Mineralogy to constitute such a request by a reference to '… tenure in, including access to and use of, the MCP subset of requested areas' (and defined as the 2017 MCP tenure request).
As I see it, that merely raises another question for the trial over the correct interpretation and characterisation as a sufficient request - from within that finite documentary material, as particularised.
Of course whether or not those documentary materials as so identified by the par 147B particulars are capable of bearing the as contended 'request' and 'understanding' characterisations as contended for by the plaintiffs under par 147B - is a matter that will present for its substantive determination at the trial. It may be for instance that as a matter of merit Mineralogy's base contention as to an absence of any sufficient request to it capable of being ascertained therein, or being inferred from out of the eleven (11) communications as identified, will be vindicated. But that is a matter for the trial.
However, a potential 'no request' failure outcome for the plaintiffs indicates what I assess is the relatively confined nature in a foreshadowed characterisation exercise towards ascertaining a sufficient request to Mineralogy by regard to what is found in those limited documentary materials, as particularised. The relatively confined and wholly document limited nature of that trial task, by my assessment, is a significant consideration towards allowing the proposed FASOC amendments at this time.

So also is the articulated position of the plaintiffs that no further discovery is sought on their behalfs in advancing the as proposed par 147B and par 149A pleas (ts 807).
Again, the plea as seen under proposed par 149A of the FASOC is as to an inferred failure and a refusal by Mineralogy to grant the lesser tenure and access in terms of the MCP Subset of Requested Areas. That is an equally confined and finite exercise of characterisation towards what is to be found or otherwise in those enumerated documents
Consequently, I am of the end view that the ambit of the further FASOC amendments proposed under par 147B and par 149A are confined - as a proposed exercise in characterisation in context of a relatively small amount of finite documentary materials, as identified.
I have not overlooked the first defendant's expressed concerns as to the alleged understanding in Mineralogy towards such a lesser ambit tenure request made to it. However, my assessment is that the alleged understanding is only contended to be ascertainable from within the as identified and particularised eleven (11) par 147B communications.
Consequently, the proposed plea as I assess it, and indeed, as I will implement it as the trial judge, does not open up any free ranging enquiry over Mineralogy's state of intent or, indeed, require any allied interlocutory processes by way of further discovery or the like, in order to deal with and reduce the issue at the trial.
I am also influenced towards allowing the further proposed amendments as they are sought by the plaintiffs - on the basis that some defensive preparation work, associated with the task of engaging against the potential demerits of the lesser framed extra tenure claim and a request by reference to the MCP Subset of Requested Areas (as seen in the ASOC map that is Annexure 11A), has already been undertaken and grappled with by the first defendant. This engagement by the first defendant can be seen under its pleaded 4FAD of 12 November 2021 - by that pleading's direct negative engagement already against the plaintiffs' lesser extra tenure case.
Mineralogy's direct negative engagement against that lesser tenure case is plainly observable on my assessment from in the 4FAD at par 147Ad., e., f., g. - in express terms. Hence, I am not persuaded that the lesser tenure case of the plaintiffs carries with it the need for Mineralogy to canvass some entirely new factual or expert defence considerations concerning a need to evaluate from nothing, an allegedly negative suite of adverse repercussions arising from the lesser tenure request.
A contended engagement by Mineralogy in the 4FAD against the plaintiffs' lesser tenure case is also seen already in the 4FAD pleas of 12 November 2021 at par 133bA(i), par 137fA. items (i) and (v). See to that end as well the 4FAD defence pleas - again engaging directly against that lesser tenure case of the plaintiffs at par 138bA of the 4FAD and likewise at par 141b. of the 4FAD.
Allied to my ultimately affirmative assessment concerning the grant of leave as requested for these FASOC amendments - is my view that they are legitimately responsive against aspects of the express defences - as seen under pars 1AGG and 147Ac. of the 4FAD - which pleas see Mineralogy put into direct issue at the trial a making to it of a request for (lesser) tenure in such terms. See also 4FAD par 1AGG - by reference to subparagraphs (b) and (c) and (e) - and which by reference to the ASOC map that is Annexure 11A, contends 'such hypothetical request would remain invalid and unreasonable for the reasons pleaded in paragraphs 137(fA) and 147A herein'.
Indeed, although this is a matter of forensic preference, my own assessment of the proposed FASOC pleas under pars 147B and 149A as to a 'request' and 'refusal' characterisation, is that they could equally have been legitimately advanced in an amended reply pleading of the plaintiffs - given that they do, as I read them, respond against the contended absence of a relevant request to Mineralogy for such (lesser) extra tenure - by answering, in effect, that such a request to that end can indeed be found within the materials identified. That, of course, may or may not be accepted at the trial.
And by reference to the various evaluative considerations that I earlier mentioned, my assessment here is that:
(a)the proposed amendments as sought under the FASOC carry only minimal impact towards adding to the issues presently required to be dealt within the looming ten week trial of 2022;
(b)the interlocutory potential ramifications carried by the proposed further changes are minimal; and
(c)the first defendant is more than amply resourced legally to respond to minimal repercussions as might emerge.
It is not, I repeat, a legitimate basis of opposition against leave to amend to contend that a potentially winning legal position once held in the absence of a necessary request, may be snatched away by the amendments. That is not true forensic prejudice.
I am of the view that the proposed amendments are coherent, particularised and essentially self-contained as proposed exercises in the characterisation of finite documentary materials, as identified. Their ultimate merit of course in terms of that contended characterisation as to a request for the (lesser) tenure is a matter to be resolved at trial.
The first and second defendants of course are not in any way inhibited from running their undoubted counter characterisation arguments to the effect that such materials ought not to be so evaluated and characterised as the plaintiffs say.
Indeed the plaintiffs also seek to counter what would be a potential loss upon the 'no request' issue - by a foreshadowed commencement of the new proceeding grounded on an independently contended request of Mineralogy at 29 November 2021. Given Eshelby principles prevalent in Western Australia towards causes of action that accrue after the commencement of a proceeding - as not being open to be run in the earlier commenced litigation - this alternative position as contended for by the plaintiffs by a fresh proceeding and its contended consolidation at the trial with the existing litigation - is a matter for separate and further consideration at an appointment hearing scheduled for 13 December 2021.
Further, I am not persuaded that there ought to be any of the contended unorthodox conditional constraints as suggested by Mineralogy against the grant of leave to amend: see the first defendant's written submissions at pars 36 through 40. They are not appropriate.

Conclusion and orders

On the basis that the plaintiffs receive leave to amend in accord with their proposed amendments under the Minute of Further Amended Statement of Claim (the FASOC) of 29 November 2021 - there should then also be further orders that:
(a) the plaintiffs pay the first, second and third defendants' costs thrown away, if any, by reason of the allowance of such pleading amendments; and
(b) the first and second defendants should have consequential leave to amend their current defence pleadings within 14 days of the court's orders allowing the plaintiffs proposed further amendments to its amended statement of claim of 26 October 2021.
Nevertheless, given the pendency of the allied consolidation application, I will hear the parties prior to the making of orders on the present application for leave to amend.

SCHEDULE - 4FAD pars 147 and 147A

Alleged request for further necessary tenure

As to paragraph 147, the first defendant:
a.     admits that a letter was sent by CPMM on 29 March 2018;
~~aB. Says that the alleged Further Necessary Tenure Request was made for the Fulcrum Purposes;~~
b.    denies that it constituted a valid request to amend the Site Lease Area;
c.     says that the Site Lease Area may be amended by agreement with Mineralogy and    Mineralogy may impose terms on its agreement;
d.    repeats and relies on paragraphs 137 and 141 above;
e.     says that CPMM has admitted it requires FIRB approval before it may acquire further        tenure:
Particulars
(a)      Letter dated 19 February 2019 from CPMM to
Mineralogy.
f.     says that Mineralogy is not able to agree to the Further Necessary Tenure Request    because to do so would breach the MRSLAs and FCD;
Particulars
(a)      the Further Necessary Tenure Request constitutes an acquisition of               Australian land under the FATA;
(b)      the FATA is a ‘Legal Requirement’ under the MRSLAs and FCD;
(c)      agreeing to the Further Necessary Tenure Request in the absence                  of approval by the FIRB would breach clauses 4.3, 6.1, 15.2 and   16.1 of the MRSLAs and clauses 4.1(b), 8.3, and 11.3(a) of the   FCD.
g.     repeats and relies on paragraphs 140 above;
gA. says that the request and tenure sought:
(i)would inhibit and impair the use of the Mineralogy Tenements for any other project or purposes under the State Agreement, including for reasons that the proposed areas:
(1)bisect the Mineralogy Tenements in a manner which would prevent movement through the tenements;
(2)inhibit access to the port of Cape Preston;
(3)prevent access to the mining leases to the North and to the South of mining leases M08/123 to M08/125 (which are occupied by Sino Iron and Korean Steel),
as depicted in Annexure 11 to the statement of claim (and in the MCP Interference with Common Use Areas in the Mineralogy Tenements Mining Areas Depiction, MCP Interference with Common Use Areas in the Port (Landside) Areas Depiction and MCP Interference with Common Use Areas in the Port (Waterside) Areas Depiction);
(ii)would devalue the Mineralogy Tenements;
(iv)is not sought to accommodate a genuine requirement for areas to prosecute the Sino Iron Project and the true purpose is to prevent, impair or inhibit Mineralogy including from using its other tenements in the Mineralogy Tenements.;
h.    otherwise denies the allegations contained therein.

147A. As to paragraph 147A, the first defendant:

a.     does not admit that the areas the subject of the Further Necessary Tenurem Request included the areas highlighted in blue on the map in Annexure 11A to the statement    of claim as despite reasonable inquiries, it remains uncertain as to the truth or falsity of the allegations;
b.     says that the plaintiffs’ reliance on the MCP Subset of Requested Areas throughout the       statement of claim constitutes an admission, and/or notice under RSC Order 30 Rule 1    by the plaintiffs in their pleading or otherwise in writing that they admit the truth,       and/or acceptance, of the following matters:
(i)     paragraph 147(gA) above of this defence, to the extent of the areas abandoned in the Abandoned Areas Depiction;
(ii)    the abandonment of the areas depicted in the Abandoned Areas Depiction;
(iii)   that Mineralogy is not and was not obliged howsoever to agree to expand the Site Lease Area to include the areas as depicted in Annexure 11 to the statement of claim;

c.     says that at no material time did Sino Iron or Korean Steel request that Mineralogy agree that the Site Lease Area be expanded to include only the MCP Subset of         Requested Areas;
d.    says that even if the Project Agreements are to be construed in the manner alleged by         the plaintiffs, Annexure 11, and consequently or alternatively, separately, Annexure     11A, are unreasonable and a request to agree to grant tenure in accordance with the     areas depicted in Annexure 11 and/or Annexure 11A does not invoke the alleged       ‘Tenure Terms’ or the alleged ‘Tenure Performance Terms’ or any or more of their      constituent alleged terms (the existence of which is otherwise denied);
e.    says that in any event, an expansion of the Site Lease Area under the MRSLAs to     include the MCP Subset of Requested Areas:
(i)     would inhibit and impair the use of the Mineralogy Tenements for any other project or purposes under the State Agreement, including for reasons that the MCP Subset of Requested Areas:
(1)   bisect the Mineralogy Tenements in a manner which would prevent       movement through the tenements;
(2)   inhibit access to the port of Cape Preston;
(3)   prevent access to the mining leases to the North and to the South of mining       leases M08/123 to M08/125 (which are occupied by Sino Iron and Korean Steel),
as depicted in Annexure 11A to the statement of claim (and in the MCP Subset Interference with Common Use Areas in the Mineralogy Tenements Mining Areas Depiction and MCP Subset Interference with Common Use Areas in the Port (Landside) Areas Depiction);

(ii) would devalue the Mineralogy Tenements;
(iv) is not sought to accommodate a genuine requirement for areas to prosecute the Sino Iron Project and the true purpose is to prevent, impair or inhibit Mineralogy including from using its other tenements in the Mineralogy Tenements;

f. say that in the premises of paragraphs (b) to (e) above, the areas sought in
Annexure 11A are unreasonable;
g.says that in the premises of paragraphs (b) to (f) above, even if CPMM had made a request in respect of the MCP Subset of Requested Areas (which is denied), the request would have been invalid and unreasonable;

h. repeats paragraphs 137, 140, 141 and 147 above of this defence;
i. otherwise denies the allegations contained therein.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RC
Associate to the Honourable Justice Martin
10 DECEMBER 2021