Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 6]
[2021] WASC 475
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: SINO IRON PTY LTD -v- MINERALOGY PTY LTD [No 6] [2021] WASC 475
CORAM: KENNETH MARTIN J
HEARD: 13 DECEMBER 2021
DELIVERED : 22 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
FILE NO/S: CIV 2326 of 2021
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
THE STATE OF WESTERN AUSTRALIA
Third Defendant
Catchwords:
Practice and procedure - Application to consolidate actions - Application opposed - Looming civil trial - Fresh action begun on basis of recent request for tenure made after earlier action was commenced years ago - Eshelby issues - Submission by defendants that new action hopeless as insufficient time had been allowed to evaluate the recent tenure request - Seven days said to be a hopelessly short period allowed before second action was begun - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA)
Result:
Consolidation orders for the two actions made
Category: B
Representation:
CIV 1915 of 2019
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 | : | In person (via video-link) |
| 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 | : | Not applicable |
| Third Defendant | : | State Solicitor's Office |
CIV 2326 of 2021
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 | : | In person |
| 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 | : | Not applicable |
| Third Defendant | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Sino Iron Pty Ltd v Mineralogy Pty Ltd [2019] WASCA 80
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 4] [2021] WASC 451
KENNETH MARTIN J:
Introduction
The reasons in Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 4] [2021] WASC 451 (Sino v Mineralogy [No 4]) delivered 10 December 2021 foreshadowed that there was still pending a further interlocutory application by the plaintiffs - seeking orders to consolidate their further action freshly commenced on 8 December 2021 - being CIV 2326 of 2021 - with the existing proceeding CIV 1915 of 2019, which has been on foot for over three (3) years.
Consequently, I am dealing with two chamber summons, both by the plaintiffs seeking that in each action consolidation orders be issued pursuant to the Rules of the Supreme Court 1917 (WA) (RSC) O 83 r 1.
In CIV 1915 of 2019, there is the plaintiffs' chamber summons (folio 313) filed 8 December 2021 seeking that by proposed order 2 thereof, that 'Pursuant to Order 83 Rule 1 of the Rules of the Supreme Court 1971 (WA), this action be consolidated with action CIV 2326 of 2021, and the consolidated action be carried on as one action and hereafter referred to as the "the consolidated action".'
A counterpart chamber summons of the plaintiffs is filed in the action freshly commenced by writ on 8 December 2021 (CIV 2326 of 2021). It seeks by the chamber summons of the same day (folio 3) - like consolidation relief under proposed order 5 therein to the effect that 'Pursuant to Order 83 Rule 1 of the Rules of the Supreme Court 1971 (WA), this action be consolidated with action CIV 1915 of 2019, and the consolidated action be carried on as one action and hereafter referred to as "the consolidated action".'
Procedural history
Under my Sino v Mineralogy [No 4] reasons of 10 December 2021, I observed at [8] and [9]:
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.
By the Sino v Mineralogy [No 4] reasons, I decided that leave would be granted to the plaintiffs to further amend their statement of claim in the terms of the minute of FASOC of 29 November 2021 (see attachment DWJ-2 to the affidavit of Mr David William John sworn 29 November 2021). In effect, orders later issued as per [75] of those reasons, albeit the time for the filing of consequential amendments to the defences of the first and second defendants is presently open‑ended - bearing in mind some potential ramifications of the current application (see the orders made on 13 December 2021 (folio 320)). Orders granting leave to amend the statement of claim in terms of the FASOC came to be extracted on Monday, 13 December 2021.
By the Sino v Mineralogy [No 4] reasons, I introduced (between [11] and [13]) the then foreshadowed consolidation application of the plaintiffs - as being essentially a subject of the 29 November 2021 communication by the plaintiffs' lawyers of record (Herbert Smith Freehills) to Mineralogy. This communication is found set out as attachment DWJ-1 to the affidavit of David William John sworn 2 December 2021 (folio 303).
The events as foreshadowed by the plaintiffs by reference to them filing a new writ with an appended proposed statement of claim (framed to be the subject of a foreshadowed consolidation application)
- ultimately eventuated on Wednesday, 8 December 2021.
As my Sino v Mineralogy [No 4] reasons further observed (at [73]) concerning the foreshadowed consolidation application:
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.
As per an extract from the 29 November 2021 Herbert Smith Freehills communication to Mineralogy (found set out in [11]) this communication had then asked Mineralogy to agree in writing to (extra) tenure in respect of two designated coloured areas on a map attached namely:
(a) a proposed Site Lease Area within the meaning of cl 1.1 and cl 4.2 of each of the Sino Iron and Korean Steel MRSLAs being an area shaded in pale blue on a map attached to the 29 November 2021 communication; and
(b)a licence to access and use for the purposes of implementation of the MCPs and the Approved Proposals, areas shaded in dark blue on that same map.
The plaintiffs' writ issued as its fresh proceeding CIV 2326 of 2021 on 8 December 2021, also attached an endorsed statement of claim - proposed for use as ultimately a sole consolidated common statement of claim pleading to be used in both actions as consolidated together.
At par 150A of that endorsed statement of claim, the letter of 29 November 2021 is referred to. The same requested extra tenure areas shaded in either pale blue and dark blue on the attached map are now identified by par 150A as the map that is proposed Annexure 11B to the statement of claim in CIV 2326 of 2021. I note at this early stage that the proposed Annexure 11B to the statement of claim corrects a minor error in the map currently present in Annexure 11A to the FASOC in CIV 1915 of 2019 (see ts 849 to 850).
The plea under par 150A of the statement of claim in the new proceeding is that on 29 November 2021, Sino Iron and Korean Steel had requested by that letter that Mineralogy agree in writing with each of them and within seven (7) days of that letter, to grant the plaintiffs, in effect, the respective site lease area (shaded in pale blue on Annexure 11B) and a licence to access and use the areas (shaded in dark blue on Annexure 11B). In aggregate, this area and request is now referred to as the 'November 2021 Tenure Request'.
There are some further pleas seen in the new action's statement of claim and by the claimed relief that are also important. But essentially, they can be seen to present as updated counterpart plea replicas to the existing causes of action pleas which have long been made by the plaintiffs by their existing CIV 1915 of 2019 pleading. The only difference now is that they are pleaded as parallel causes of action which have been framed around the 29 November 2021 Tenure Request
- by way of response to a line of defence earlier raised by Mineralogy that there had been no prior like request by the plaintiffs for extra tenure before that 29 November 2021 communication.
That position is denied by the plaintiffs. In any case, the plaintiffs may alternatively seek to fall back to rely, if all else fails, on the fresh 2021 request to Mineralogy in the new action to cater for any Eshelby contributions thwarting such arguments made around a further November 2021 extra tenure request.
The November 2021 Tenure Request
The plaintiffs also told Mineralogy by their lawyers (Herbert Smith Freehills) on 29 November 2021, that '… if Mineralogy does not agree within seven (7) days of the date of this letter, our clients will assume that Mineralogy has refused the request, continues to refuse the reiterated repurposing request and continues to refuse to join with Sino Iron and Steel in submitting the MCPs to the Minister for approval.' Further, they told Mineralogy that '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'.
The plaintiffs did that, at 8 December 2021, by their fresh writ. Having taken that course, the CITIC parties now seek consolidation. Mineralogy says not enough time was allowed to it to evaluate the November 2021 extra tenure request which it says raises new and wholly distinct considerations for it to evaluate.
Rival positions
As at 8 December 2021, Mineralogy had not by then agreed to grant the plaintiffs the extra tenure as was requested on 29 November 2021 - by way of site lease area and licence to access and use area (being the pale blue and dark blue areas marked on the new map proposed as Annexure 11B). The fresh proceeding CIV 2326 of 2021 was duly issued - concerning all the same CIV 1915 of 2019 parties and suing in the same plaintiff/defendant capacities.
The application by the plaintiffs to consolidate the two actions to avoid suggested potential Eshelby principle repercussions within the old action (in the event the plaintiffs' extra (lesser) tenure request breach of contract cause of action is ultimately assessed to have matured only following the request for that extra tenure at 29 November 2021) - seeks to consolidate the two actions for a purpose of their sensible joint resolution at the looming February 2022 ten week trial.
As seen, the consolidation application events were foreshadowed and so have been canvassed somewhat in conceptual anticipation
- under the parties' earlier respective written submissions filed at the time of the application by the plaintiffs - then seeking to amend their statement of claim (ASOC) to align with their proposed FASOC (see folios 302 and 306).
Paragraphs 14 through to 27 of the plaintiff's written submissions of 2 December 2021 (folio 302) addressed in anticipation, a foreshadowed consolidation application - in terms I incorporate below:
14.In their letter making the November 2021 Tenure Request, Sino Iron and Korean Steel stated that, if Mineralogy did not agree to that request within 7 days of the date of the letter, the CITIC parties would assume that Mineralogy has refused the request. They did so on the basis of the urgency of these matters for the continuation of the Sino Iron Project and:
a.the considerable time that had passed since Mineralogy received the MCPs in December 2017; and
b.the time which had passed since the plaintiffs clearly identified the position regarding the MCP Subset of Requested Areas by providing a draft of the Amended Statement of Claim to Mineralogy more than a month earlier, on 20 October 2021.
15.The CITIC parties further informed Mineralogy that, in the event of Mineralogy failing to agree within 7 days, they would issue a new proceeding on the basis of that failure or refusal to agree to the November 2021 Tenure Request and seek to have that new proceeding consolidated with this proceeding.
16.Upon the 7-day period expiring on Monday, 6 December 2021, the CITIC parties intend to issue the new proceeding shortly thereafter, if Mineralogy has not agreed to the November 2021 Tenure Request by then. To that end, the CITIC parties have prepared a draft writ and statement of claim, which are exhibited to the 2 December John affidavit (Proposed New Claim). The Proposed New Claim:
a. is between the same parties as the current proceeding;
b.incorporates by reference the substantive allegations in the proposed FASOC; and
c.pleads, in the alternative, the failure or refusal to grant the November 2021 Tenure Request as a breach of the same contractual, statutory and equitable obligations alleged in the proposed FASOC.
D.Consolidation
17.As is apparent, the November 2021 Tenure Request is directed to the same allegations in the 4FAD as are the amendments in the proposed FASOC. The foreshadowed new proceeding advances allegations in the alternative to those made in the proposed FASOC, anticipating that, in light of the position adopted by Mineralogy in paragraphs lAGG and 147A of the 4FAD, Mineralogy will adopt a similarly technical approach to the question of whether the 2017 MCPs constituted a request for tenure.
18.As noted, the CITIC parties have foreshadowed bringing a new proceeding on the basis of the Proposed New Claim, rather than seeking to amend the ASOC. They have done so in order to obviate the need for a further arid, technical debate, this time concerning whether the Eshelby principle would operate to bar the CITIC parties from bringing an amended claim on the basis of the November 2021 Tenure Request in the current proceeding.
19.It is respectfully submitted that it is clear that the foreshadowed new proceeding, assuming that it is required to be brought, should be consolidated with the current proceeding, for the following reasons.
20.Under Order 83, rule 1 of the Rules of the Supreme Court 1971(WA) (Rules), the Court may, relevantly, consolidate any number of causes or matters whenever "any issues between the same parties can be conveniently tried together [...] in order to quiet all claims relating to one subject matter, transaction or event, or to substantially similar subject matters, transactions or events."
21.When determining any application to consolidate proceedings, the Court will consider whether:
a.there are common questions of law or fact or a common transaction or series of transactions;
b.consolidation is convenient, including whether doing so will prevent a multiplicity of actions and ensure savings of time and cost;
c.consolidation will cause prejudice or unfairness to any parties;
d.consolidation will be conducive to a just resolution of the issues;
e.there are any practical matters which may make consolidation inexpedient.
22.The Rule 'ought to be broadly construed,' and must be applied with the objects of: '(1) promoting the just determination of litigation, (2) disposing efficiently of the court's business, (3) maximising the efficient use of available judicial and administrative resources, and (4) facilitating the timely disposal of business.'
23.Each of the factors identified in paragraph 21 above favours consolidation of the Proposed New Claim with the current proceeding, for the following reasons.
24.First, there are plainly common questions of law or fact or a common transaction or series of transactions. The November 2021 Tenure Request concerns substantively the same envelope as the MCP Subset of Requested Areas, which is the subject of the 2017 MCP Tenure Request, pleaded in the proposed FASOC. The November 2021 Tenure Request was made in response to Mineralogy's alleging, by amendments made in the 4FAD, that until the ASOC was served the CITIC parties had never requested the MCP Subset of Requested Areas.
25.Second, and as a result, consolidation would be convenient, avoiding unnecessary costs and a multiplicity of actions. Substantively the same factual matters will be relevant to determining the Proposed New Claim as are relevant to determining the allegations made in the ASOC and in the proposed FASOC. The significant work already undertaken by the parties to prepare the matter for trial, including preparation of evidence and tender bundles, will therefore be relevant to the determination of the Proposed New Claim. Consolidation would therefore not threaten the start of the trial of the current proceeding, set down for 14 February 2022. For the same reasons, hearing the Proposed New Claim with the claims the subject of the current proceeding within the 10 weeks now allocated to the trial of the current proceeding is entirely feasible.
Conversely, if consolidation were not allowed, the new proceeding would need to be heard separately at some later point, with inevitable duplication and waste of the resources of the Court and the parties.
26.Third, for all of the same reasons, consolidation will not cause prejudice or unfairness to any parties and will be conducive to a just resolution of the issues between the parties.
27.Finally, there are no practical matters which may make consolidation inexpedient. (footnotes omitted)
By direct response raised against any such foreshadowed consolidation of the actions, the written outline of submissions of the first defendant (Mineralogy) of 6 December 2021 (folio 306) stated a firm opposition then against any future consolidation proposal that is grounded in the alternative on the request made to Mineralogy for extra tenure under the terms of the 29 November 2021 communication to Mineralogy.
To that opposing end against any consolidation, I refer to pars 24 through 34 of Mineralogy's written submissions of 6 December 2021, which I will also incorporate below:
CThe Court should not make an order for consolidation
24.It can be accepted that a new proceeding is required insofar that the Plaintiffs rely on a request made after the commencement of this proceeding because the Eshelby principle continues to prevail in Western Australia.
25.However, the Court should not make orders consolidating this proceeding with the foreshadowed new proceeding based on the Proposed New Claim. This is because:
a.the Proposed New Claim has no realistic prospect of success;
b.further, or alternatively, it would be unduly onerous on the First Defendant to prepare to defend the Proposed New Claim at the trial commencing on 14 February 2022.
26.First, as far as the First Defendant can discern only having had the proposed pleading since 2 December 2021, the Proposed New Claim can be distilled to an assertion by the Plaintiffs that the alleged extra-contractual terms, estoppels and statutory norm require the First Defendant to consider and accede to their alleged request within a week. Putting aside the matters raised in the 4FAD - which would, in·addition to any other defences the First Defendant would wish to plead, apply mutatis mutandis to the Proposed New Claim - the latest request (like its predecessors) would, if accepted, have serious consequences for the First Defendant, other projects under the State Agreement and the Mineralogy Tenements. It is manifestly unreasonable for the Plaintiffs to issue the First Defendant with an ultimatum open for a week, particularly doing so concurrently with intense trial preparation.
27.The Plaintiffs submit that the seven-day window is justified by urgency. The First Defendant does not accept that contention. In any event, if true, the belated request and urgency for its approval is a problem of the Plaintiffs' own making.
28.The Plaintiffs further rely on the passage of time since Mineralogy received the 2017 MCPs. It cannot reasonably be suggested that the 2017 MCPs and the alleged requests that followed it (ie, the Further Necessary Tenure Request, the Re‑Purposing Request and the PoW Request) put the First Defendant on notice of a request for tenure and access to the areas sought in this latest alleged request.
29.The Plaintiffs also rely on the time that has passed since 20 October 2021 when they provided the First Defendant with a draft ASOC containing Annexure 11A depicting the MCP Subset of Requested Areas. This hardly improves the Plaintiffs' case, even if one were to ignore the fact that the latest alleged request is (the Plaintiffs contend) "substantively the same as" - but not identical to - the area depicted in Annexure 11A of the proposed FASOC. The Plaintiffs have not explained the differences in the latest alleged request, let alone the differences between Annexure 11A in the ASOC and Annexure 11A in the proposed FASOC (as stated above).
30.The Court should therefore decline to make consolidation orders. In due course, the First Defendant will apply for the summary dismissal of the Proposed New Claim.
31.Second, and quite apart from the hopeless nature of the Proposed New Claim, there would be significant prejudice to the First Defendant if it were heard together with the current proceeding. The Proposed New Claim is a materially different claim.
32.Although superficially there is some common ground between the subject matter of the current proceeding and the Proposed New Claim, there is a fresh cause of action involving additional facts in dispute. The Proposed New Claim involves additional disclosure and evidence. Consolidation will deprive the First Defendant of usual interlocutory processes. Any additional burden on the First Defendant is increasingly acute as the trial draws nearer and unwarranted.
33.Third, the tenure sought in the Proposed New Claim is materially different both in area and purported rights attaching to the tenure. The First Defendant should not be deprived by consolidation orders, and a looming trial essentially on an expedited basis, of the right fairly to respond to the allegations by consulting with engineers, geologists, its legal representatives and any other appropriate parties, as to the tenure sought and its consequences. In the context of a project said to be worth billions of dollars, and a proceeding that has already cost millions of dollars; the First Defendant should not be forced without good reason to defend a new case. There is no such reason.
34.Finally, the Plaintiffs' concern about duplication and waste of resources is more apparent than real. The Court's judgment at the conclusion of the trial will give rise to estoppels between the parties. Those estoppels will likely dispose of most, if not all, of the dispute entailed by the Proposed New Claim. In any event, the concerns are self-inflicted by the Plaintiffs' failures to plead a tenable case. (footnote omitted) (my emphasis in bold)
Discussion
Given the pendency of a looming ten (10) week trial in CIV 1915 of 2019 commencing 14 February 2022 and the potential implications of the present application - the consolidation application brought in both actions was urgently listed for a hearing on 13 December 2021.
Like the ultimate successful application by the plaintiffs to amend in terms of the FASOC, the fate of this application (which raises similar evaluative considerations to be weighed), bears heavily upon the conduct of a looming trial in a proceeding that has been pending (across two Superior Courts) for over three (3) years.
The opposing positions indicated by the parties' written submissions came to be augmented under the verbal submissions of senior counsel for the plaintiffs, for Mineralogy Pty Ltd and indeed by Mr Palmer acting for himself (by video link) as second defendant, on 13 December 2021.
A heavy component of the opposing submissions put on behalf of the first and second defendants against consolidation orders as sought
- argues that the fresh writ by action CIV 2326 of 2021 of 8 December 2021 has been, in effect, issued prematurely - by reference to the request of Herbert Smith Freehills to Mineralogy of 29 November 2021. In effect, it is argued that the period of seven (7) days as allowed - was a completely inadequate timeframe for Mineralogy and for Mr Palmer to independently evaluate the as submitted fresh extra tenure proposal - by reference the areas and to what is seen on the Annexure 11B map (see par 6 of the first defendant's outline of submissions).
My attention was also drawn by senior counsel for the first defendant to a suggested significant change of position by a large truncation in the tenure areas and to the nature of a lesser (licence, not lease) tenure that is now requested of Mineralogy - only at late 2021. Reference was also made to some answering correspondence sent by Mineralogy to the plaintiffs requesting then more time to consider the proposal and asking for further information from the plaintiffs. It was argued that the first and second defendants had sought a more reasonable time frame to consider the November 2021 Tenure Request over the Annexure 11B map - given many suggested fresh considerations to weigh around such request. For example, the extra ore tonnage of a further billion tonnes being made available to Balmoral Iron Pty Ltd (another MRSLA party and acquired subsidiary of CITIC Ltd akin to Sino Iron Pty Ltd and Korean Steel Pty Ltd) under the CPOA arrangements that have been settled upon relatively recently this year after another saga of litigation between the same parties.
My attention was also drawn to the suggestion put by Mineralogy and Mr Palmer that the nature of the suggested (non-exclusive) access in the licence area request (ie, the dark blue area on the attached map which is to be Annexure 11B), requires far greater basic detail for any such licence - namely the specific detail as to the key terms of any such licence agreement, particularly as regard the potential interactions with third parties to occur in a non-exclusive use area. Mineralogy and Mr Palmer argue that none of this is clear enough yet, emphasising again, the prematurity of the second action based on the 29 November 2021 request.
Additionally, Mr Palmer appearing in person as second defendant, (and Mineralogy by par 30 of its written submissions) had foreshadowed Mr Palmer bringing his own summary dismissal application - which he told me, after some discussion, would seek to dismiss, in effect, the new action CIV 2326 of 2021 summarily on the basis of RSC O 16 (ts 884 to 885).
I had indicated to Mr Palmer, in effect, on 13 December 2021 that given surrounding pre-trial activities, a foreshadowed advancing of a summary dismissal application meant that any application to that end (albeit he is now acting in person), particularly given the time of the year, the looming trial and other surrounding considerations - would need to be urgently filed at not later than within 48 hours of the 13 December hearing (ts 883).
I thus allowed Mr Palmer, essentially, until the close of business on Wednesday, 15 December 2021 to file any proposed summary dismissal application by him in CIV 2326 of 2021.
I had also told Mr Palmer that in the absence of any such application filed by him, that I would then proceed to evaluate the consolidation application - which was otherwise fully argued out as between the plaintiffs and the first and second defendants at the special appointment hearing on Monday, 13 December 2021 (ts 885 to 886).
The resolution of the consolidation application of the plaintiffs was interrupted by a chamber summons application sent to my chambers by email on behalf of Mr Palmer to my Associate. This correspondence was sent at 5.06 pm (WST) on 15 December 2021 from Mr Palmer's former lawyer of record in CIV 1915 of 2019 (Mr S Iskander of Alexander Law) - on a basis that Mr Palmer, acting in both actions then as a litigant in person as second defendant, could not access the court's electronic portal to lodge the attachment to Mr Iskander's email (being the chamber summons seeking summary dismissal).
Nevertheless in the result, on Thursday, 16 December 2021, I issued urgent directions for Mr Palmer's summary dismissal application to be urgently heard and resolved on the papers under an expedited timetable. Later that afternoon my chambers was advised via email communication from Mr Kane Jones (at 2.23 pm (WST)) that Mr Palmer would not be pursuing his application and withdraws it.
I may then, with that interrupting obstacle now removed, proceed to resolve the consolidation application of the plaintiffs.
Evaluation
The written and verbal opposing submissions on behalf of Mineralogy and Mr Palmer put against the as proposed consolidation of the CIV 2326 of 2021 action with CIV 1915 of 2019 (so they may be all commonly resolved together at the forthcoming trial in February 2022) - display some common and recurring themes to those arguments unsuccessfully put against the last series of amendments to the plaintiffs' statement of claim by the FASOC: see my reasons in Sino v Mineralogy [No 4]. The opposition themes included:
(a)the new proceeding is hopeless as a matter of merit;
(b)correlatively, a period of seven (7) days did not allow reasonable time after 29 November 2021, for that request for extra (lesser) tenure to be properly weighed up and evaluated by Mineralogy and Mr Palmer;
(c)the plaintiffs, by reference to the statement of claim Annexure maps 11A or 11B, were changing their position radically to run at the last gasp, a radically downsized and very different extra tenure case, which had only emerged after three years of CIV 1915 of 2019 being on foot - originally seeking the greater extra tenure by reference to the annexure 11 map;
(d)the plaintiffs had always known that their greater tenure claim (seen by reference to annexure map 11) was extravagant and was doomed to fail, but had persevered with it nevertheless; and
(e)only at the last moment, the day before the parties' scheduled verbal quasi openings for the trial to be delivered by respective senior counsel for the plaintiffs and the first and second defendant were scheduled (for 27 October 2021), did the plaintiffs' then radically slim down their extra tenure claim case - as the annexure 11A map tenure claim case, emerged.
Decision on consolidation
In essence, I accept the written submissions of the plaintiffs' in the earlier mentioned pars 24 ‑ 27 of their written submissions dated 2 December 2021. The power of the court to order, as a matter of discretion, a consolidation in the interests of justice where required, is undoubted; see Sino Iron Pty Ltd v Mineralogy Pty Ltd [2019] WASCA 80at [410].
The opposing force of the arguments put against a proposed consolidation of the two actions, is not lost on me. But with respect, much of what is put in opposition looks to me to turn upon the underlying facts as they will ultimately need to be found after a trial. Evaluative considerations as to what is, or is not, a reasonable request for greater tenure, or a reasonable period to consider such a tenure request - will need to be made. These raise issues not to be glossed over or brushed aside as being hopeless just on a mere say so.
I also do not detect any convincing level of forensic prejudice suffered by the first and second defendants, in their needing to get ready very quickly to deal with these arguments at the trial. They are very wealthy and well resourced parties uniquely placed to devote whatever legal resources are needed to an urgent look before mid February 2022.
After a trial at which all sides get a fair opportunity to put forward their rival versions of contended facts and arguments, with the benefit in some areas of expert evidence - then at the later point, safer and reliable conclusions as to the ultimate merits or demerits of these arguments, can then be better reached. For instance, whether enough time has reasonably been allowed after 29 November 2021 for Mineralogy and Mr Palmer to evaluate that extra tenure request put by the plaintiffs (per the Annexure 11B map) is a question of fact and degree. The evaluation will require much evidence of fact to be canvassed.
Whether the extra tenure request made on 29 November 2021 is closely akin to, or is radically distant to what had been asked for over three years before - will also require a careful and close evaluation consideration of all underlying facts. Whether the demands within the November 2021 Tenure Request is a legal adjustment to the character of the tenure previously asked for (ie, once for a leased area
- necessarily seeking then for exclusive possession and modified in 2021 to a non‑exclusive licensed area, and then the underlying terms of a requested licence) - again, raises complex evaluative considerations of fact and degree.
Likewise, whether the modified tenure as it is sought in 2021 should be handed over to the plaintiffs by Mineralogy free of any charge as the plaintiffs seek, or should be instead paid for by the rendering of a proper level of commercial payment by the CITIC parties - poses another difficult question for the trial. None of these questions are straightforward or in my view, susceptible to being glossed over on an interlocutory basis.
However, they all would, in my view, interrelate to presenting as common issues in basically the same underlying dispute that has been on foot for years and now looms for a trial determination commencing 14 February 2022.
Conclusions on consolidation of the two actions
Overall, my impression is that the November 2021 Tenure Request issues obviously interrelate very closely to the issues before the court under CIV 1915 of 2019. The option of not resolving all such issues at trial in February 2022 and proceeding on the basis of issue estoppels arising from the trial outcome, presents to me as being wasteful and undesirable unless there is no other real choice as a matter of fairness to Mineralogy and Mr Palmer.
As I indicated in the Sino v Mineralogy [No 4] reasons, it also looks to me that Mineralogy and Mr Palmer have already done some considerable level of preparatory work towards grappling with and evaluating their suggested demerits in the plaintiffs' (lesser) extra tenure case. That is not surprising. It looks to me to be a subset of the longstanding arguments put for some years by the plaintiffs in CIV 1915 of 2019. As mentioned, the November 2021 modifications are in my view, well capable of being dealt with and the first and second defendants are well resourced enough to cope with the adjusted task.
Presently and perhaps unusually so, my assessment is that no party lacks the capacity to gain the assurance of first class legal resources in order to be ready at the trial. I therefore reject the submission that the first and second defendants will be unduly prejudiced by a consolidation of the two actions as the plaintiffs seek.
Orders
Consequently, I will order a consolidation of the two actions as sought by the plaintiffs in the terms basically as seen in [3] and [4] of these reasons. CIV 1915 of 2019 will be designated as the lead action.
Following publication of these reasons, there should swiftly follow, a consolidated statement of claim carrying the CIV 2326 of 2021 pleading augmentations (a consolidated further re-amended statement of claim (CFRASOC)) filed by the plaintiffs.
Once that consolidated pleading is filed in the consolidated action
- with CIV 1915 of 2019 designated as the lead action - then the first and second defendants should then have ten (10) days to file any consequential amendments to their currently pleaded respective defences - if they choose.
The plaintiffs should provide a minute of orders giving effect to these reasons to the defendants and to my chambers no later than 48 hours after the publication of these reasons.
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
22 DECEMBER 2021
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