Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 6] - [2025] WASC 77

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   SINO IRON PTY LTD -v- MINERALOGY PTY LTD [No 6] [2025] WASC 77
CORAM:   LUNDBERG J
HEARD:   10 MARCH 2025
DELIVERED          :   11 MARCH 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 - Further and better discovery - Application by first defendant for further discovery of technical model (the Whittle Model) used to create the optimised mine pit shell for the 3 billion tonne ore mine pit - Application narrowed through conferral - Whether documents directly relevant to the action - Case management considerations - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 26 r 7, O 26 r 11

Result:

Application for further discovery dismissed.

Category: B

Representation:

Counsel:

First Plaintiff	:	L A Warnick SC, T B Maxwell and R O'Brien
Second Plaintiff	:	L A Warnick SC, T B Maxwell and R O'Brien
Third Plaintiff	:	L A Warnick SC, T B Maxwell and R O'Brien
First Defendant	:	P J Dunning KC and 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):

EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2010] WASCA 78; (2010) 41 WAR 23
Inpex Operations Australia Pty Ltd v AIG Australia Ltd [2023] WASC 332
Maek Pty Ltd v Ibrahim [2022] WASC 285
Quenchy Crusta Sales Pty Ltd v LogiTech Pty Ltd [2002] SASC 374
Roe v The State of Western Australia [2013] WASC 130
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 15] [2023] WASC 56
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2024] WASC 413

Table of Contents

A. Introduction

B. The application

C. An explanation of the Whittle Model Category

D. Relevant principles

E. Mineralogy's position

F. Previous requests of a similar nature

Request by Mineralogy in November 2023

Categories of discovery ordered on 2 October 2024

G. Disposition

Overview

Constraints on the mine pit and waste rock dumps

Mineralogy's commercial interest

Breach of cl 16 of the MRSLAs

Sufficient information

Reasonableness of the 2023 MCPs and unreasonableness of Mineralogy's refusal

H. Conclusion and orders

ATTACHMENT A Orders for discovery sought by Mineralogy

LUNDBERG J:

A. Introduction

These reasons concern the further discovery application brought by the first defendant in this action, Mineralogy. The application has been brought pursuant to O 26 r 7 of the Rules of the Supreme Court 1971 (WA) (RSC).
The scope of the application was refined through conferral between the parties, with only one category of the initial four categories of documents remaining in dispute. The orders initially sought by Mineralogy are set out Attachment A to these reasons. The plaintiffs, the CITIC Parties, have opposed this request.
I will refer to the remaining category as the Whittle Model Category, identified in par 1(a) to the minute of proposed orders (marked by the box in Attachment A). I understand 'Whittle' is the name of the bespoke software used in the process of mine pit shell optimisation. In essence, this is the technical model used by the CITIC Parties to prepare the optimised pit shell for the proposed 3 billion tonne ore mine pit which forms part of the mine continuation plans (the 2023 MCPs). For convenience, I will refer to the model itself as the Whittle Model.
The 2023 MCPs were submitted by the CITIC Parties to Mineralogy, in August 2023, for approval. Mineralogy's asserted refusal to approve the 2023 MCPs is at the centre of this action.[1]
[1] Statement of Claim dated 27 November 2023 (SOC) [76] and Prayer for Relief A, B and C.
I accept that this category of documents is not caught by the discovery categories as previously ordered, and it was necessary for a further and better discovery application to be made to enlarge those categories. I also accept, and indeed it appeared to be common ground, that the Whittle Model, or documents of this nature, exist and are in the possession, custody or power of the plaintiff.
The discovery application was first raised with the Court at a directions hearing held on Friday, 28 February 2025, following which programming directions were made to facilitate an expedited hearing of the matter. The discovery application was heard on Monday, 10 March 2025. The application has required a prompt determination given the action is listed for trial to commence on 28 April 2025.
For the reasons which follow, I will dismiss the further discovery application seeking production of the Whittle Model Category of documents. Those documents are not directly relevant to the issues in the action. I will reserve the costs of the application given the application was narrowed through conferral, but my provisional view is that the first defendant should pay the plaintiffs' costs of the substantive hearing on 10 March 2025.

B. The application

Mineralogy sought orders for discovery by the plaintiffs of the Whittle Model files recording the optimised pit shell for the proposed 3 billion tonne mine pit and the design objectives and various other known or estimated parameters. The request included the files comprising the model developed using the Whittle software from which the optimised pit shell was derived. As explained below, it is only the discovery of the Whittle Model which remains in contest.
The application was initiated by a minute of proposed orders dated 6 March 2024, and was supported by affidavits sworn by Tracey Lyn Robinson on 28 February 2025 and 6 March 2025 (respectively, the First Robinson Affidavit and the Second Robinson Affidavit). Mineralogy also produced to the Court 8 confidential documents from the plaintiffs' discovery in aid of the Application.
The background to the application and the bases for the orders sought is set out in the outline of submissions filed on behalf of Mineralogy dated 6 March 2025 (AS).
I received an outline of submissions from the CITIC Parties dated 7 March 2025 (RS), together with a supporting affidavit sworn by David William John on 7 March 2025 (John Affidavit). In addition, the CITIC Parties provided to the Court 5 confidential documents from the discovery.
The parties made reference to a bundle prepared by Mineralogy which contained requests for information and responses. That bundle had been provided to the Court during an earlier interlocutory application. An updated chronology of the correspondence between the parties was also produced, prepared by Mineralogy, concerning the 11 year period from 10 April 2014 to March 2025.[2]
[2] See email from Robinson Nielsen to the Court dated 10 March 2025 (attaching the updated chronology and link to the bundle).
There was extensive conferral between the parties in relation to the additional documents sought by Mineralogy.[3] That conferral led to the production by the CITIC Parties of the Vulcan Models in respect of the current pit and the proposed 3 billion tonne mine pit.[4] The CITIC Parties have also now produced the Minemax schedule which was the input into the XPAC model (and the XPAC model itself) for the schedule for the 3 billion tonne ore pit in the document described as the '2019 Life of Mine Plan'.[5] The CITIC Parties have indicated that no equivalent files exist for the current pit.[6]
[3] AS [7] – [15].
[4] AS [15].
[5] AS [17].
[6] AS [17].
As to the 'Senior Management Documents' which were requested in par 1(b) of the minute of orders, no orders for discovery were ultimately sought in this regard. To the extent such documents exist, the plaintiffs submit they have been discovered already under other discovery categories ordered by the Court. Senior counsel for Mineralogy indicated that, to some degree driven by his client's information asymmetry in this matter, he is unable to pursue that request further in the circumstances, but has explained his client's position to the Court that, in the event additional documents of this nature emerge at trial, that may prejudice his client.
The original topography files sought by par 1(c) to the minute of proposed orders have been provided to Mineralogy. It appears these were likely created by Mineralogy's own consultants, in the early days of this project.[7] The as-built pit shell as at 30 June 2023, sought by par 1(d) of the minute of proposed orders, was discovered by the plaintiffs on 25 February 2025.[8] The plaintiffs do not concede the relevance of these documents, nor the reasonableness of the requests.[9]
[7] RS [42].
[8] RS [43].
[9] RS [42] and [43].

C. An explanation of the Whittle Model Category

The issues in this proceeding focus upon the open cut magnetite iron ore mine at Cape Preston, in the Pilbara region of Western Australia, which is typically referred to as the Sino Iron Project.[10] The plaintiffs carry on and manage that project, through a subsidiary. The first defendant holds the tenements on which the project is carried out, and is the proponent of the project under the applicable State Agreement.
[10] SOC [20] – [23].
The CITIC Parties plead that the Sino Iron Project is conducted pursuant to and under a suite of contracts, which include a State Agreement, the Sino Iron MRSLA, the Korean Steel MRSLA, the Sino Iron Takeover Agreement, the Korean Steel Takeover Agreement, the FCD, the Direct Agreement, the China Project Option Agreement and, lastly, the General Arrangement Map Deed.[11] The State Agreement is contained in Schedule 1 to the Iron Ore Processing (Mineralogy Pty. Ltd.) Agreement Act 2002 (WA), as amended by Schedule 2 to that legislation.
[11] SOC [8].
As part of the Sino Iron Project, the CITIC Parties have constructed infrastructure and facilities on the site.[12] This includes the open cut mine, waste rock landforms, and a tailings storage facility. The CITIC Parties assert that the mine pit, the tailings storage facility and the waste rock landforms are constrained by the terms of the proposals which have been approved, and by the location of a particular road.[13]
[12] SOC [39].
[13] SOC [40].
As a result of these constraints, the CITIC Parties have prepared and submitted to Mineralogy the 2023 MCPs, which incorporate a proposal for the extension of the mine pit, among other things.[14] The extension includes an optimised pit shell for the mine. It is necessary to briefly explain this concept, as well as the software which is used to create the pit shell, for the purposes of addressing Mineralogy's discovery application:[15]
(a)In general terms, geological information is stored on a database which is maintained by the operator of the mine. The geological information is obtained through drilling samples. The information is then used to determine a 'Resource Block Model' which maps out the geological composition of the resource, based on exploration, measurement, inference and estimation.
(b)The 'Resource Block Model' delineates the material in the mine pit into three dimensional blocks, with the blocks being different sizes, and with the blocks assigned characteristics such as mineral content and density.
(c)Specific software is then used to generate models of the material in the proposed mine pit using consistently sized blocks, known as 'Vulcan Models'. The software is the 'Maptek Vulcan' software. The resource blocks to be mined are identified by taking in account various inputs, including size, available equipment and locations of the entrances.
(d)The next step is important to the present application. In particular, I understand the 'Vulcan Models' are used by additional software, referred to as the 'Whittle' suite of software (this is the Whittle Model to which I have earlier referred), to develop an optimised pit shell. This optimised pit shell takes into account various factors such as the geological ore body, design objectives (such as the total amount of ore to be extracted), and known or estimated parameters. These parameters include processing costs, the price of the concentrate, freight costs, other costs and royalties.
(e)As can be seen from the foregoing, there is a difference between the 'Vulcan' software and the 'Whittle' software, although both are deployed or utilised in the process of creating the optimised pit shell.
[14] SOC [62].
[15] This summary is drawn from the witness statement of Robert Bruce Goodwin dated 23 November 2024 to which both senior counsel referred. This statement contains the evidence the plaintiffs intend to adduce at trial through Mr Goodwin.
Next, it is necessary to reference the 'Life of Mine Plan' concept. In general terms, a 'Life of Mine Plan' is a document which sets out the long term mine planning and projections for a particular mine, including volume and mass of waste rock estimated to be generated by the project. In the present case, the most recent version of this document is the 2019 Life of Mine Plan. The 3 billion tonne mine pit which forms part of this plan was designed through the Vulcan software, using the Whittle optimised pit shell.
The plaintiffs have discovered the Whittle optimised pit shell for the 3 billion tonne mine pit. This is the file titled 'Scen HS D 54 3Bt.00t', which was provided under cover of the letter from the plaintiffs' solicitors dated 4 March 2025. The plaintiffs have discovered the Vulcan files containing the 3 billion tonne mine pit design which forms part of the 2019 Life of Mine Plan. The plaintiffs have also discovered the document containing the input parameters for the Whittle optimisation undertaken for the 2019 Life of Mine Plan.
Mineralogy presses for more than this, though. The category which remains in dispute between the parties is, in essence, the Whittle Model itself.

D. Relevant principles

The Court has power to order further discovery be given, pursuant to O 26 r 7 RSC. The principles applicable to the exercise of that power were summarised in my decision in Inpex Operations Australia Pty Ltd v AIG Australia Ltd.[16]
[16] Inpex Operations Australia Pty Ltd v AIG Australia Ltd [2023] WASC 332 [28] – [35] (Inpex Operations).
Within that decision, I summarised the principles expressed in Maek Pty Ltd v Ibrahim[17] and in Roe v Western Australia[18] concerning the approach to be adopted by this Court in ordering discovery. The broad power in O 26 r 7 RSC is subject to these principles, as well as the principles enunciated in O 1 r 4A and r 4B RSC. Indeed, O 26 r 7(3) RSC in terms states that the Court is to have regard to O 1 r 4B RSC.
[17] Maek Pty Ltd v Ibrahim [2022] WASC 285 [25] - [27] (Quinlan CJ).
[18] Roe v The State of Western Australia [2013] WASC 130 [10] - [11] (Martin CJ).
Order 26 r 7 RSC provides:
7. Orders as to discovery
(1) An application for an order under this rule may be made at any time by —
(a) a party whose request under rule 1 for discovery has not been satisfied; or
(b) a party who has been requested under rule 1 to give discovery, whether or not the party has complied with the request.
(2) An affidavit in support of the application is not necessary.
(3) On an application, or at any time of its own motion in any proceedings, the Court, having regard to Order 1 rule 4B, may —
(a) order any or all of the parties to give discovery at that stage or at some specified future stage of the action;
(b) as to the documents to be discovered by any party —
(i) order that discovery be given of only those specified documents or specified classes of document;
(ii) order that discovery be given of only those documents that are directly relevant to any specified matter in question or to all matters in question;
(iii) order that discovery be given of all documents relating to any specified matter in question or to all matters in question;
(c) make orders as to which parties are to be given discovery by any specified party;
(d) order that any or all of the parties not give discovery at that stage of the action, or at all;
(e) order any or all parties to make, file and serve an affidavit verifying the party's list of documents discovered.
(4) For the purposes of this rule if a party is ordered to give discovery, the party shall, subject to the order, make and serve, a list of the documents that are or have been in the party's possession, custody or power.
Order 26 r 11 RSC provides:
11. Order for production etc. only if necessary
No order for production of any documents for inspection or to the Court shall be made unless the Court is of opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs.
In Maek Pty Ltd v Ibrahim, Quinlan CJ collected the following principles, which I will apply in dealing with this application:
1. A party does not have a strict entitlement to an order for discovery.
2. The power to order discovery is discretionary.
3. The discretion is to be exercised having regard to the timely and cost effective disposal of litigation.
4. On the other hand, discovery has been described as promoting the ascertainment of truth in litigation and as an essential part of the proper administration of justice.
5. Subject to the rules of privilege, there is a 'public interest in having available all evidence relevant to the issues in litigation'.
6. The ultimate test is whether the discovery is necessary for fairly disposing of the proceedings.
7. Relevance is not the only factor the court must consider in the exercise of the discretion to order discovery. But whether a document relates to a matter in question in the proceedings remains the descriptive criterion in O 26 of what documents should be discovered.
As I noted in Inpex Operations, the concept of direct relevance is identified in O 26 r 7(3)(b)(ii) RSC and was addressed, in the South Australian context, by Doyle CJ in Quenchy Crusta Sales Pty Ltd v LogiTech Pty Ltd.[19] His Honour's observations, upon which senior counsel for the plaintiffs placed reliance in resisting the present application, were as follows:[20]
It is not wise to attempt to state in comprehensive terms the effect of the requirement that the document be 'directly relevant'. The adverb 'directly' is probably intended to emphasise the requirement of relevance, and to be used in the sense of requiring that the document be directly in point, excluding as sufficient indirect relevance which may be established through another linking circumstance. That is not to say, as I have already said, that a document is not directly relevant if it is merely a piece of circumstantial evidence. The point is that a document will not be directly relevant if, rather than tending to prove an issue on the pleadings, it merely tends to prove something that may be relevant to an issue.
[19] Quenchy Crusta Sales Pty Ltd v LogiTech Pty Ltd [2002] SASC 374.
[20] Quenchy Crusta Sales Pty Ltd v LogiTech Pty Ltd [11] (Doyle CJ).

E. Mineralogy's position

The production of the model is necessary, according to Mineralogy, to allow its solicitors and experts to properly interrogate the optimised pit shell which the plaintiffs have proposed, and to undertake sensitivity analysis using different inputs and parameters. Mineralogy contends that the Whittle Model files are essential to understanding the design of the current and proposed pit extension, and this necessarily affects the waste storage requirements alleged by the plaintiffs.[21]
[21] Second Robinson Affidavit [12].

Mineralogy supports its request by reference to the opinions expressed by Mr Troy Turner, the chief executive officer of Xenith Consulting.[22] That firm is an exploration, mine planning, operational and financial solutions consulting firm. It was not in dispute that Mr Turner has the necessary expertise to express the opinions in question, at least for the purposes of the present application. Ms Tracey Robinson, the first defendant's solicitor, has deposed to those opinions on information and belief, in the following terms.
[22] Second Robinson Affidavit [27].
As to the Whittle Model, Mr Turner has explained that the optimised pit shell file (being the file titled 'Scen HS D 54 3 Bt.00t') has been derived from a model developed with the Whittle software. Mr Turner has informed Ms Robinson it would take approximately seven to eight weeks for Xenith Consulting to develop a model using Whittle that incorporates the parameters contained in documents 'CPM.672.027.1333'. Any reconstructed model would not be precisely the same as the model underlying the optimised pit shell file - because a different person would be developing the reconstructed model.[23] As senior counsel for the first defendant submitted, there would be no utility in the Mineralogy creating its own, ersatz, model.
[23] Second Robinson Affidavit [27(a)] and [27(b)].
Further, Mr Turner has stated that the Whittle Model underlying the optimised pit shell file (and any other optimised pit shell for the 3 billion tonnes of ore) has a relationship with the amount of projected waste material because that amount is ultimately a function of the optimised pit shell's sensitivity to certain inputs/variables within the model. As an example, if the sensitivity to the cost and revenue inputs/variables in the model was adjusted, it would be expected that the pit shell optimised by the Whittle Model would change, including the pit's surface area, shape and depth and the identification of the material to be processed, and, as a consequence, the amount of waste material to be removed in order to extract 2 billion tonnes of ore for processing (as well as 3 billion tonnes of ore).[24]
[24] Second Robinson Affidavit [27(c)].
Mineralogy contends that the requested documents which have not yet been produced are relevant to the proceedings and should be produced. Mineralogy points to the following matters to demonstrate direct relevance:[25]
(a)the allegations in the plaintiff's statement of claim about the alleged constraints on the mine pit and the waste rock dumps, including the estimated storage capacity for waste rock based on an extraction of 2 billion tonnes of ore,[26] which are denied;
(b) the allegations in its Defence that Mineralogy could take into account its commercial interest in the mining operations conducted by Sino Iron and Korean Steel when considering the 2023 MCPs;[27]
(c)the allegations in the Defence that Sino Iron and Korean Steel have failed to develop the mine pit, tailings storage facility and waste rock landforms efficiently and in accordance with clause 16 of the MRSLAs;[28]
(d)the allegations in the Defence that the CITIC Parties have failed to provide sufficient information to enable Mineralogy properly to assess the 2023 MCPs;[29] and
(e)the allegations as to the reasonableness of the 2023 MCPs and the alleged unreasonableness of Mineralogy's refusal.[30]
[25] AS [22] and [23].
[26] Mineralogy refers to [40], [41], [46], [49], [54] and [64] of the SOC.
[27] Further Amended Defence dated 5 February 2025 (Defence) [27C], [76(bA)], [76(f)] and [94A].
[28] Defence [40(a)].
[29] Defence [76(b)] and [94A].
[30] SOC at Section E.
The CITIC Parties do not accept these propositions, and assert that this understanding can already be derived from the material previously discovered by the CITIC Parties in the proceedings or which is otherwise available to Mineralogy.[31] Senior counsel for the plaintiffs described this application as being capable of resolution through the 'conventional application of principles of direct relevance'.
[31] Second Robinson Affidavit, Attachment TLR-14 (HSF Letter dated 4 March 2025).
Senior counsel for the plaintiffs submitted that the documents were not directly relevant in the sense required by O 26 r 7 RSC, and as explained in the authorities. The request for the Whittle Model was described as fundamentally a fishing expedition. Mineralogy, it was said, wishes to test and potentially contest the pit model developed by the CITIC Parties and assess whether it can devise a more optimised pit shell, one that might better suit the commercial purposes of Mineralogy. In essence, the plaintiffs say that Mineralogy wants to second guess the proposal advanced by the CITIC Parties, but this cuts across the demarcation of contractual responsibilities and duties which the CITIC Parties submit is evident from the contractual suite of documents which govern their relationship.

F. Previous requests of a similar nature

Request by Mineralogy in November 2023

At the hearing, my attention was drawn to the letter from Mineralogy to the plaintiffs' solicitors, dated 6 November 2023. That letter forms part of the back and forth between the parties following the presentation by the plaintiffs of the 2023 MCPs.
Within that letter, Mineralogy requested that the plaintiffs provide the 'Vulcan/DXF model of ore body definition and modelling', which was stated to include 'all geotechnical information used to build the mine geological model' and 'all open cut economic ore body cut-off depth'. According to the letter, the information was required to 'ensure your clients have paid the correct amounts to Mineralogy', which is a reference to the ongoing disputes between the parties as to the payment of royalties.
The term 'Vulcan' refers to the software I described earlier in these reasons. The term 'DFX' is a reference, I understand, to a file type used in this particular area, as can be seen from sub-pars 1(c) and 1(d) of the minute of proposed orders.
Both parties drew some support from the terms of the above correspondence, with Mineralogy submitting that it is evident from the letter that documents in the nature of the Whittle Model were requested as early as November 2023, which was prior to the commencement of the litigation. Mineralogy's senior counsel observed that numerous other requests for information had also been made, in purported exercise of contractual rights to require document production by the plaintiffs. Senior counsel pointed to the broad terms of the request in the correspondence which was sent in November 2023, which he described as relating to the 2023 MCPs generally, not being confined merely to royalty calculation issues.
From the plaintiffs' perspective, it was submitted that the earlier request did not seek the Whittle Model in terms, and in any event the request was fundamentally driven around royalty calculation issues.

Categories of discovery ordered on 2 October 2024

The disputed documents sought by Mineralogy have some similarities to the sub-categories of documents which were excised from a discovery category ordered in October 2024, being 'Category EM – Operational issues'.
On 2 October 2024, following a contested discovery hearing on 1 October 2024, the Court ordered that discovery be given by the parties by reference to various categories.[32] One of the categories ordered was identified as 'Category EM – Operational issues', which is a category by which the CITIC Parties were required to give discovery of documents recording or referring to the geology of the ore body and the size and design of the mine pit.
[32] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2024] WASC 413.
The terms of Category EM, as ordered, were as follows:
All Documents during the Post Production Period recording or referring to:
i. the geology of the ore body and the size and design of the mine pit, including:
a. 2017 CITIC Mineral Resource Estimate Update;
b. Entech Mineral Resource Estimate – Sino Iron Project – December 2021;
c. End of month open pit surveys in DXF format;
d. April 2018 Programme of Works;
e. DVD tilted 'CITIC Pacific Mining: Resource Report and & Vulcan Files';
f. CSV files from acQuire database;
g. CITIC's drillhole database in .csv format;
ii. any Mine Plan, the shape of the mine pit and the alleged need to expand the mine pit to the west (save that for this purpose, a “Mine Plan” is limited to a documented plan for the Life of Mine or for a 3 or 5 year (or longer) period);
iii. the size and design of the tailings storage facility for the Sino Iron Project;
iv. tailings disposal requirements for the Sino Iron Project;
v. the extension of the mine pit to the west; vi. the relocation of the Fortescue River Road as proposed in the 2023 MCPs;
vii. the CITIC Parties' experience in developing and operating the Sino Iron Project as it concerns the development of the 2023 MCPs and the alleged necessity for the facilities proposed in the 2023 MCPs;
viii. waste rock requirements for the Sino Iron Project; or
ix. the design of facilities which are the subject of the 2023 MCPs, including timeframes and schedules for construction, construction drawings and specifications, contract tenders and reports justifying the necessity for the facilities.
Documents as at August 2023:
x. recording the then current annual forecast of production of magnetite concentrate for the Sino Iron Project.
The Court's reasons delivered on 7 November 2024 record that Category EM had been proposed by Mineralogy and subsequently revised by the CITIC Parties. The category was ultimately agreed by the parties on the basis of CITIC Parties' amendments to the category, and also on the basis set out in Mineralogy's submissions.[33]
[33] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2024] WASC 413 at pages 42 - 43
Mineralogy's submissions dated 27 September 2024 include the following submission, which I recorded within my ruling on 2 October 2024:
[31]The CITIC Parties have proposed amendments to Category EM concerning certain documents recording or referring to the geology of the ore body and size and design of the mine pit (i.c. to k.) and its definition of “Mine Plan” in ii.. While not conceding the appropriateness how it had originally drafted Category EM, to reduce disputes at this preliminary stage, Mineralogy proposes a course whereby: the Court makes orders in the terms of Category EM as counter-proposed by the CITIC Parties; Mineralogy reviews the documents discovered by the CITIC Parties pursuant thereto; and, if necessary after review, Mineralogy will exercise its rights to seek further and better discovery (whether by way of augmenting Category EM or introducing further appropriate categories).
The position set out in Mineralogy's submissions was sensible. That approach reflects the iterative process often undertaken by commercial parties in large scale litigation, whereby the identification and assessment of relevant documents is reassessed by the parties as the litigation progresses, and as initial tranches of discovery are provided and reviewed. The parties are then able to request additional discovery as the matter progresses, utilising the procedure in the rule and the court's inherent jurisdiction where necessary to properly pursue further discovery.
The Court's earlier reasons record the additional sub-categories of documents sought by Mineralogy, which were excised from Category EM, as ordered. The sub-categories as excised included the following, which had been drafted by Mineralogy's solicitors:
a. all daily results and reports of in pit 12 metre bench algorithm of FE content models;
b. Vulcan / DXF life of mine (LOM) ore body, with LOM open pit overlay;
c. Vulcan / DXF model of current reserves with LOM open pit overlay;
g. any programme of works of future drilling and proposed resources and reserves upgrade with LOM open pit overlay;
h. Vulcan / DXF model of ore body definition and modelling, including the location of all bore holes, all lithology logs and assay results, all geophysical logs, all core photos, all core lab analysis, all geotechnical information used to build the mine geological model, or all open cut economic ore body cut-off depth.
The terms of these sub-categories are similar to the requests for documents made by Mineralogy in November 2023.
It is possible to discern from the broad terms of the excised sub-category that Mineralogy had initially sought, as part of the discovery process, documents which were similar in nature to the present disputed request, which now specifically seeks discovery of the Whittle Model.
Indeed, there is little doubt that Mineralogy has, on a consistent basis, made requests to the plaintiffs for the production of documents. Those requests stretch back prior to the presentation of the 2023 MCPs. Requests were also made after the 2023 MCPs were presented and before the proceedings were initiated. Further, requests have been made during the course of these proceedings.
As the making of those requests, and their reasonableness, is a matter in issue in the proceedings, I will refrain from making any findings in this regard or expressing any concluded views, whether as to the terms of the requests, whether they were reasonable, and how they were addressed by the plaintiffs.
As I will explain, in any event, I do not consider it necessary to reach any conclusions in this regard for the purposes of these proceedings.
It is sufficient to observe that, although the specific request for the Whittle Model appears to have been made late in the day (and the specific request for the model may have only been made, for the first time, on 25 February 2025), that must be seen against the backdrop of numerous requests for information of a similar nature which have been made by Mineralogy.
It may well be that the specificity of this request has been tailored following consultation with an expert engaged by Mineralogy. The engagement of that expert may also have been undertaken rather late in the day. It is unnecessary to reach a conclusion on this issue.
Importantly, the request for the Whittle Model is not likely to be oppressive or burdensome, in the sense that it would require extensive resources to be deployed by the CITIC Parties to attend to discovery and production. No cogent submissions were made in this regard on behalf of the CITIC Parties. I infer that the Whittle Model could be produced by the plaintiffs in a relatively prompt fashion, with a minimum of inconvenience to the plaintiffs and its legal team.
On my assessment, then, the application for discovery of the Whittle Model should not be refused on case management or on proportionality grounds. However, the request should be refused because it fails to meet the necessary relevance threshold and the Whittle Model is not necessary for fairly disposing of the action, as I will now explain.

G. Disposition

Overview

In the context of the present application, given the principles identified above, I will need to be satisfied the documents sought by Mineralogy are directly relevant to the matters in issue in the proceedings and that the discovery of these documents is necessary for fairly disposing of the proceedings, having regard to case management considerations concerning the timely and cost effective disposal of litigation.
As I have already noted, I am not persuaded that case management considerations and questions of proportionality are such as to preclude the Court acceding to the discovery request advanced by the first defendant.
The aspect of this application which has loomed largest in my analysis is that of relevance. Mineralogy has pointed to various bases on which the request for the Whittle Model Category of documents can be sustained in terms of relevance.
The focal point for this analysis must be the terms of the parties' pleaded cases. As a corollary to this proposition, it is not sufficient to point to references in discovered documents which concern the Whittle Model or how it has been used by the plaintiffs. In this regard, it is evident that the Whittle Model is extensively referred to within the discovered documents which were produced on this application, including in the confidential documents.
I was taken by senior counsel for Mineralogy to various passages in the confidential documents during the hearing. Given the confidential nature of many of the documents, I will refrain from descending into any detail. By way of example, it is sufficient to refer to the following confidential documents, using their discovery reference numbers:
(a)the memorandum at CPM 672.017.2334;
(b)the memorandum at CPM.639.228.6394;
(c)the presentation at CPM.672.054.2364;
(d)the meeting minutes at CPM.672.017,7969;
(e)the email chain at CPM.639.129.4581; and
(f)the RPM Global document at CPM.672.027.1333.
I was also taken to Attachment DWJ-44 to the John Affidavit. That is not a confidential document. It consists of an internal CPMM memorandum prepared in March 2019 concerning the updating of the 'Life of Mine Plan'. The memorandum appears to indicate that the mine pit shell which was to be developed would be tested for its sensitivity to the 'input assumptions'. Attachments DWJ-45, DWJ-46 and DWJ-47 were also emphasised by senior counsel for the first defendant. Again, these documents tend to suggest the pit shell would be tested for sensitivity to 'input assumptions'.
All of these documents variously refer to the 2019 Life of Mine Plan and demonstrate the use of the Whittle Model by the plaintiffs, as well as emphasising the significance of the inputs and assumptions employed by the model. All of that may be accepted. That is not sufficient for the discovery request to be granted. I turn now to the bases relied upon by Mineralogy, all of which are relatively general in nature and none of which refer, even indirectly, to the mine pit shell or raise any challenge in respect of the optimised mine pit shell developed by the plaintiffs.

Constraints on the mine pit and waste rock dumps

The first asserted basis of direct relevance focuses on the allegations in the plaintiff's statement of claim as to the alleged constraints on the mine pit and the waste rock dumps, including the estimated storage capacity for waste rock based on an extraction of 2 billion tonnes of ore.[34] These allegations are denied.[35]
[34] Mineralogy refers to [40], [41], [46], [49], [54] and [64] of the SOC. See AS [22(a)].
[35] Defence [46] and [54].
Given the pleaded issues, Mineralogy is no doubt entitled to discovery of documents as to whether the mine pit and the waste rock dumps are constrained. That seems to be common ground.
However, this broad plea does not touch on whether the optimised pit shell proposed by the plaintiffs as part of the 2023 MCPs is the most optimal or efficient shell. There is no plea to this effect, namely that the optimised pit shell was not the most optimal or efficient one.

Mineralogy's commercial interest

Senior counsel for Mineralogy placed reliance[36] on the plea at [27C] of the Defence which concerns Mineralogy's asserted entitlement to take into account its commercial interests in the mining operations conducted by the CITIC Parties.[37] This paragraph (together with [27A] and [27B]) was inserted into the Defence in January 2025 without objection by the plaintiffs.
[36] AS [22(b)].
[37] Defence [27C], and see also [76(bA)], [76(f)] and [94A].
The plea is to the effect that, given the longer term interests of Mineralogy as the holder of the tenements, and the finite extent of the plaintiffs' interests concerning the Sino Iron Project, the first defendant has a commercial interest in the 'planning and conduct of the Mining Operations', and in the 'coordination of the activities' of the plaintiffs.[38] The plea states that such matters relevantly affect the tenements, the royalty payable to Mineralogy and the exploitation of magnetite ore from the mining leases that will remain after the mining and processing of 3 billion tonnes of ore.
[38] Defence [27C(a) and (b)].

The plaintiffs describe this plea as 'nebulous' and criticise the plea for lacking clarity in that there is nothing identified to support the contention that the asserted commercial interest can override other provisions of the contractual agreements. My attention was drawn, in this regard, to cl 4.2(a) of the FCD in particular, the effect of which, together with other provisions, is pleaded at [26] of the SOC. That clause provides that the planning and conduct of the Mining Operations by the plaintiffs, in effect, and the coordinating of the activities between those parties, is the responsibility of CPMM, the subsidiary company of CITIC which has developed, managed, operated and conducted the Sino Iron Project on behalf of the plaintiffs.
Even if I accept the breadth of the commercial interest plea as put by the first defendant (and this application is not the occasion to express concluded views about the adequacy of this plea or the contractual schema, about which these parties disagree), I do not accept this is sufficient to justify the discovery request.
The pleas at [27A], [27B] and [27C] certainly mark out a case the first defendant wishes to agitate at trial as to the role its commercial interest plays, in response to the negative assertions pleaded by the plaintiffs at [27] of the SOC. At [27] of the SOC, the plaintiffs plead the matters for which Mineralogy is not responsible.
The first defendant then repeats [27C] of the Defence at [76(bA)] by way of response to the central allegations at [76] of the SOC that Mineralogy failed to consider or approve the 2023 MCPs.
None of these allegations bring into issue the efficiency or suitability of the optimised pit shell which is advanced by the plaintiffs.

Breach of cl 16 of the MRSLAs

The next basis of asserted relevance focuses on [40(a)] of the Defence.[39] It is alleged that Sino Iron and Korean Steel have failed to develop the mine pit, tailings storage facility and waste rock landforms efficiently and in accordance with cl 16 of the MRSLAs.[40]
[39] AS [22(c)].
[40] Defence [40(a)].
This allegation is supported by four specific matters. Only the fourth matter, in [40(a)(iv)] bears mentioning.
The allegation in sub-par (iv) is that the plaintiffs failed from in or about 2012 onwards to plan for the expansion of the mine pit and waste storage capacity to remain adequate for the rate of production and life of mine pursued by them for the purposes of the Sino Iron Project.
Clause 16.1 of the Sino Iron MRSLA, which is relied upon by Mineralogy for the purposes of its defence, provides:
16. STANDARD OF WORK
16.1 Standard of work
Sino must carry out all Sino's Activities to the standard of care, skill and diligence that would normally be expected internationally of a professional and competent organisation implementing a project equivalent to Sino's Project, and in accordance with Good Industry Practices.
The term 'Good Industry Practices' is defined in cl 1.1 of the Sino Iron MRSLA to mean, in respect of any work:
(a) the exercise of that degree of skill, diligence, prudence and foresight that reasonably would be expected from a reputable and prudent contractor in performing work similar to that work and under conditions comparable to those applicable to that work; and
(b) compliance with those standards, codes and practices which would ordinarily be applied by reputable companies and contractors in the iron ore industry in Australia.
Again, the plea is silent on the subject of the optimised mine pit shell and contains no challenge to the optimised mine pit shell incorporated into the 2019 Life of Mine Plan. The allegation at sub-par (iv) is directed to a failure to plan on the part of the plaintiffs (or some of them) from in or about 2012 onwards. The particulars sub-joined to sub-par (iv) provide no support for the relevance contention advanced by Mineralogy.
Mineralogy has incorporated six particulars to [40(a)(iv)] of the Amended Defence (with an indication that further particular may be provided upon completion of the interlocutory processes). Four of the particulars concerns matters recorded in the minutes of the meetings of the Fulcrum Group, being an internal group or committee within the CITIC organisation.
The particulars may be summarised as follows:
(a) First, Mineralogy refers to and relies on the Second Sino Iron Concentrate Proposal and Second Korean Steel Concentrate Proposal. Those documents are alleged to relevantly provide: 'The above mine plan will provide sufficient ore for approximately 5 years during which time additional areas will be sought for the placement of tailings and waste rock as well as extension of the pit area and volume' (section 3.4).
(b) Second, Mineralogy refers to and relies on the evidence of Mr Robert Goodwin given on behalf of the plaintiffs in the proceedings before Kenneth Martin J, concerning the planning failures in relation to the Sino Iron Project.
(c) Third, Mineralogy refers to and relies on the minutes of the Fulcrum Group meeting on 9 March 2012, which relevantly provided: 'Expansion proposal – on hold… Use as negotiation leverage'.
(d) Fourth, Mineralogy refers to and relies on the minutes of the Fulcrum Group meeting on 16 November 2012, which relevantly provided: 'Expansion proposal: Decision to be made on whether to separate CPM's application from MIN's [referring to the Mineralogy Expansion Proposal circa 2009-2010] and if so, how to go about it'.
(e) Fifth, Mineralogy refers to and relies on the minutes of the Fulcrum Group meeting on 25 August 2015, which relevantly provided: 'Finalising proposed TSF footprint … Preliminary work commenced on SIP Expansion proposal'.
(f) Sixth, Mineralogy refers to and relies on the minutes of the Fulcrum Group meeting on 3 November 2015, which relevantly provided: 'Sino Iron Expansion (expansion for Pit, WRD, TSF & Port stockyard with option for increased throughput) approvals – submission June 2016… Tenure access and appropriate conditions.'
In my view, nothing in [40(a)] or [40(b)] of the Defence supports the disputed discovery request. The Whittle Model is not directly relevant to the issues as revealed by these parts of the pleading.

Sufficient information

The fourth basis concerns the plea at [76(b)] of the Defence. Mineralogy pleads that the 'plaintiffs have not (and still have not, despite request) provided sufficient commercial and technical information to enable Mineralogy to consider the 2023 MCPs'.[41]
[41] AS [22(d)].
The plea is directed at a lack of information by the plaintiffs, and repeats the plea at [27C] concerning Mineralogy's commercial interests as well (see [76(bA)] of the Defence).
The pleading makes no reference to any issue concerning a lack of information as to the optimised mine pit shell, or the manner in which that shell has been developed by the plaintiffs. The first defendant has not contended that its inability to deploy or utilise the Whittle Model itself is a basis which supports the broad plea at [76(b)] of the Defence.
I cannot accept that a broad allegation such as is found in [76(b)] is adequate to support a discovery request for a model of the type sought, in circumstances in which the optimised mine pit itself has been discovered and the inputs and parameters have likewise also been discovered.
The request for production of the model, in order to interrogate the optimised pit shell which has been advanced and to develop alternative or competing mine pit shells, is a matter which ought to have been expressly pleaded if it was to be advanced.
In any event, it has not been demonstrated that it is necessary for Mineralogy to have the Whittle Model itself in order to advance the allegation that it required the model to assess the reasonableness of the 2023 MCPs. Further, the expert evidence led by Mineralogy on the present application, on information and belief, does not in terms assert that the expert requires the Whittle Model in order to opine on the sufficiency of the information provided by the plaintiffs.

Reasonableness of the 2023 MCPs and unreasonableness of Mineralogy's refusal

Finally, the broad pleas that the 2023 MCPs are reasonable, and that Mineralogy's refusal was unreasonable, require examination.[42] The descriptive criterion of relevance is an important (indeed, fundamental) criterion when assessing discovery applications, and even more so where the party seeks to justify a request based on a generalised plea.
[42] AS [23].
In the present case, I am far from satisfied that the broad pleas identified above can be called in aid of the request for the discovery of the Whittle Model. A challenge by the first defendant to the reasonableness of the 2023 MCPs and support for the reasonableness of Mineralogy's response does not, to my mind, require production of the Whittle Model so as to then permit a party to undertake its own sensitivity analysis, or prepare its own model, or to replicate the mine planning decision.
More broadly, the materials to which I was taken in argument demonstrate that the first defendant has raised issues in correspondence for some time concerning the Vulcan models and the information used to build the mine geological model. The 'Vulcan' software is used together with the 'Whittle' software in the optimisation pit shell process. This subject (i.e. the optimised mine pit shell) is thus not a new issue, which has only emerged latterly in the course of the proceedings. Rather, it was identified in the correspondence some time ago, such as in the November 2023 letter sent by the first defendant to the plaintiffs' solicitors. Having been raised in this way, it is curious that the issue has not emerged in the pleadings in any respect, which one might naturally expect if the issue formed part of the first defendant's proposed case at trial.
Moreover, at the conclusion of the hearing and in taking the opportunity overnight to consider the contentions advanced by Mineralogy in support of the request, I must say I was unable to clearly grasp precisely what Mineralogy asserts is its difficulty with, or line of challenge in relation to, the optimised mine pit shell prepared by the plaintiffs for the proposed 3 billion tonne mine pit. The pleadings and particulars do not assist in this regard.
Ultimately, at best, the Whittle Model might be used by Mineralogy to create alternative mine pit shells through the introduction of different variables and inputs, and might then be used as a contrast with the optimised mine pit shell relied upon by the plaintiffs or to challenge the mine planning decisions made by the plaintiffs. But that is really speculation at this stage, and the expert evidence adduced by Mineralogy on affidavit does not dispel this speculation and merely points to the possibility of the process of sensitivity analysis being undertaken. In the absence of any clearly articulated basis in the pleadings for the discovery of the Whittle Model, I am left to conclude the request is a fishing expedition and, as such, ought not be granted.
The analysis in Kenneth Martin J's decision concerning the 2017 MCPs,[43] which draws on the principles expressed by the Court of Appeal in its decision in EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd,[44] does not alter this conclusion. Senior counsel for Mineralogy referred to these authorities. They do not alter the conclusion because those principles do not undermine the requirement for direct relevance to be identified and established for the purposes of an application such as the present, under O 26 r 7 RSC.
[43] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 15] [2023] WASC 56 [2235] - [2245].
[44] EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2010] WASCA 78; (2010) 41 WAR 23 (Owen, Buss and Newnes JJA).

H. Conclusion and orders

For the foregoing reasons, I will order that the first defendant's request for discovery of the Whittle Model Category be refused and will reserve the costs of the application.

ATTACHMENT A
Orders for discovery sought by Mineralogy

Whittle files

(a) the Whittle model files recording (current as at the submission of the 2023 MCPs):
(i)the optimised pit shell for the proposed 3Bt pit;
(ii) the design objectives and various other known or estimated parameters referred to by Mr Goodwin in his witness statement filed 23 November 2024 (including .fxp (project file), .mod (model file), and .par (parameter file) file extensions),

which include (without limitation) the files comprising the model developed in Whittle from which the file entitled “Scen HS D 54 3Bt.00t” (provided under cover of the Plaintiffs' solicitors' letter of 4 March 2025) was derived;

Consideration of design

(b) all Senior Management Documents recording or referring to the CITIC Parties' consideration of the design of the proposed 3Bt pit prior to the finalisation of document CPM.629.077.0001 (entitled “Life of Mine Plan Document 2019”);

Original topography

(c) the .00t, .00g and/or .dxf files recording or depicting the original topography of the area within mining leases M08/123, M08/124 and M08/125 prior to the commencement of pre-stripping activities;

As-built pit shell as at 30 June 2023

(d) the .dxf files recording or depicting, as at 30 June 2023, the as-built pit shell within the currently approved areas.

Definitions:

'Senior Management Documents' are Documents comprising papers or reports presented to, together with the minutes and agenda of any meetings of:

(a) the Board of any of the CITIC Parties; or
(b) the body known (in the period between May 2010 and December 2018) as the “Sino Iron Project Steering Committee” and (since January 2019) as the “Management Committee”; or
(c) the body known as the “Sustainability Committee”; or
(d) any other persons performing senior management roles within the CITIC Parties.

'CITIC Parties' means any employee, officer or representative of CITIC Limited (including both CITIC Pacific Ltd and CITIC Ltd as they existed from time to time), CITIC Pacific Mining Management, Sino Iron Pty Ltd or Korean Steel Pty Ltd.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IR
Associate to the Hon Justice Lundberg
11 MARCH 2025