Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 9]

[2025] WASC 126

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   SINO IRON PTY LTD -v- MINERALOGY PTY LTD [No 9] [2025] WASC 126

CORAM:   HILL J

HEARD:   3, 7 & 9 APRIL 2025

DELIVERED          :   17 APRIL 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 - Legal professional privilege - Claims for privilege made by plaintiff over more than 900 documents - Application by first defendant for inspection of documents - Whether documents created for multiple purposes - Whether plaintiff has discharged onus that documents created for the dominant purpose of obtaining legal advice - Application for inspection allowed in part

Legislation:

Rules of the Supreme Court 1971 (WA) O 26 r 9, O 26 r 12

Result:

Application allowed in part
Further documents to be produced to court for inspection

Category:    B

Representation:

Counsel:

First Plaintiff	:	L A Warnick SC & J O'Hara
Second Plaintiff	:	L A Warnick SC & J O'Hara
Third Plaintiff	:	L A Warnick SC & J O'Hara
First Defendant	:	P Dunning KC & K Byrne
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):

AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30

AWB Ltd v Cole [2006] FCA 571; (2006) 152 FCR 382

Balabel v Air-India [1988] 1 Ch 317

Barnes v Commissioner of Taxation (Cth) [2007] FCAFC 88; (2007) 242 ALR 601

Carey v Korda [2012] WASCA 228; (2012) 45 WAR 181

CMA Assets Pty Ltd v John Holland Pty Ltd [No 3] [2012] WASC 501

Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501

Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd [2005] FCA 1247; (2005) 225 ALR 266

Commissioner of Taxation (Cth) v Spotless Services Ltd [1996] HCA 34; (1996) 186 CLR 404

CTC Resources NL v Australian Stock Exchange Ltd [2000] WASCA 19; (2000) 22 WAR 48

Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325

DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 1191; (2003) 135 FCR 151

Esso Australia Resources Ltd v Commissioner of Taxation (Cth) [1999] HCA 67; (1999) 201 CLR 49

Galway v Constable [2001] QSC 180; [2002] 2 Qd R 146

Grant v Downs (1976) 135 CLR 674

Hooke v Bux Global Limited [No 3] [2018] FCA 1038

Kennedy v Wallace [2004] FCAFC 337; (2004) 142 FCR 185

National Crime Authority v S (1991) 29 FCR 203

Rayney v AW [2009] WASCA 203

Re Southland Coal (recs and mgrs apptd) (in liq) [2006] NSWSC 899

Sino Iron Pty Ltd v Mineralogy Pty Ltd [2024] WASC 242

Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 15] [2023] WASC 56

Strzelecki Holdings Pty Ltd v Cable Sands Pty Ltd [No 2] [2009] WASC 150

TEC Hedland Pty Ltd v The Pilbara Infrastructure Pty Ltd [2020] WASC 364

The Civil Aviation Authority v The Queen (on the Application of Jet2.com Ltd) [2020] EWCA Civ 35

Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [2024] WASC 132

HILL J:

1. These proceedings are listed for trial before Lundberg J commencing on 28 April 2025 for 13 days.  Despite the fact that the trial commences in less than two weeks, there remain a number of interlocutory disputes between the parties.  One of these disputes concerns claims of legal professional privilege made by the plaintiffs over more than 900 documents.  Given the nature of this dispute, the first defendant's application for inspection has been listed before me, rather than the trial judge.

2. The dispute arises out of orders made on 2 October 2024 for the parties to give discovery of a number of categories of documents.  One of the categories the plaintiffs (CITIC Parties) were ordered to provide discovery of was category AB, which was described in the following terms:

   All Documents in the Post Production Period [from 30 June 2021 until 27 November 2023], including drafts, recording or referring to the consideration by the CITIC Parties of, the preparation and submission of, and any interaction with the State (in any capacity) in relation to the 2023 MCPs [mine continuation plans].

3. On 3 December 2024, the CITIC Parties filed and served an affidavit of discovery.  In the affidavit, claims for privilege, by reference to broad descriptions, were made over certain categories of documents.

4. On 26 February 2025, the solicitors for the first defendant (Mineralogy) wrote to the solicitors for the CITIC Parties noting that, on their review of the discovered documents, no documents had been produced for inspection within category AB.  The solicitors asked for confirmation as to whether a claim for legal professional privilege had been made over all drafts in this category and, if so, for a detailed list of the documents to be provided to them.[1]

   [1] Affidavit of Tracey Lyn Robinson filed 20 March 2025, 'TLR-01'.

5. On 5 March 2025, orders were made for the provision of a list of these documents by 4.00 pm on 6 March 2025.

1. On 11 March 2025, the CITIC Parties provided a list of these documents.  Claims for privilege were made over more than 900 documents.[2]  An updated list was provided on 13 March 2025.[3]

   [2] Affidavit of Tracey Lyn Robinson filed 20 March 2025, 'TLR-03'.

   [3] Affidavit of Tracey Lyn Robinson filed 20 March 2025, 'TLR-05'.

2. The parties agree that these documents fall into six categories:

   (a)documents up to and including 14 March 2023 (Category One);

   (b)documents after 14 March 2023 between people other than external legal advisors (Category Two);

   (c)communications either between employees and external legal advisors or communications between external legal advisers connected with the drafting of the 2023 MCPs (Category Three);

   (d)all drafts of the 2023 MCPs (Category Four);

   (e)documents in connection with the presentation to the Department of Jobs, Tourism, Science and Innovation (DJTSI) (Category Five); and

   (f)documents in connection with a letter from CITIC Limited to the Premier of Western Australia (reference 60‑062672) (Category Six).

3. For the purpose of this application, a sample of documents in each category (apart from Category Four) was provided to the court on a confidential basis for inspection.

4. The CITIC Parties say that the claim for privilege is properly made.  This is because the 2023 MCPs were primarily prepared by legal advisers and were prepared 'iteratively and by a continuum of communications'.  On this basis, they contend that all communications between the CITIC Parties and their legal advisers are privileged as legal advice. The CITIC Parties also contend that the documents were prepared in the context of anticipated litigation, given the litigation history between the parties.

5. Mineralogy challenges this broad privilege claim on the basis that the CITIC Parties have not discharged their onus of establishing that the dominant purpose for the creation of any of these documents was to obtain legal advice or provide instructions.  In their submission, the 2023 MCPs (and all associated communications) were created for operational and commercial reasons.  Mineralogy also denies there was a real prospect of litigation at the time these documents were created.

6. In addition to these broad contentions, detailed submissions were made by the parties on each of the sample documents produced to the court, which I address below.

7. For the reasons that follow, it is my view that:

   (a)the CITIC Parties have not discharged their onus in establishing that the dominant purpose for the creation of all documents over which privilege is claimed was to obtain legal advice or to provide instructions for the purpose of obtaining legal advice;

   (b)I am not satisfied that the time the documents were created, there was a real prospect of litigation or that litigation privilege attaches to any of these documents; and

   (c)having inspected the sample documents:

   (i)I accept and uphold the claim for privilege made in full in relation to documents 7, 13, and 15;

   (ii)I accept that parts of documents 4 and 12 are properly subject to a claim of privilege although these documents in their entirety are not.  Those parts of these documents that are privileged (as described below) should be redacted before these documents are produced for inspection by Mineralogy;

   (iii)the CITIC Parties have not discharged their onus in establishing that documents 1, 3, 5, 9, 10, 11, and 14 are the subject of a claim for privilege.  An order for inspection will be made in respect of these documents; and

   (iv)I am unable to reach a conclusion on documents 2, 6, and 8 without inspecting the attachments to these documents, or in relation to the attachment to document 14.  These documents should be produced to the court for inspection as soon as possible so that a final decision can be made in respect of these documents.

Evidence on the application

1. On the application, Mineralogy relied on an affidavit of its solicitor, Tracey Lyn Robinson filed 20 March 2025.  Shortly prior to the hearing on 9 April 2025, Mineralogy filed a further affidavit of Ms Robinson which they sought to rely on at the hearing.  For the reasons given on that date, I did not grant leave to Mineralogy to rely on this further affidavit for the purposes of the hearing.

2. In support of the contention that the sample documents (and other documents) are properly the subject of a claim for legal professional privilege, the CITIC Parties read two affidavits of David William John, a partner of Herbert Smith Freehills (HSF), the solicitors for the plaintiffs: an open affidavit filed 26 March 2025; and a redacted affidavit filed 7 April 2025.  A confidential affidavit of Mr John was filed 26 March 2025 but, ultimately, was not relied upon by the CITIC Parties for the reasons explained below.

Factual background to proceedings

1. The factual background giving rise to the present proceedings between the parties was summarised by Cobby J in Sino Iron Pty Ltd v Mineralogy Pty Ltd.[4]  It is sufficient for the purposes of this application to highlight the following matters.

   [4] Sino Iron Pty Ltd v Mineralogy Pty Ltd [2024] WASC 242 [6] ‑ [25].

2. The first and second plaintiffs and Mineralogy are parties to the Iron Ore Processing (Mineralogy Pty Ltd) Agreement (State Agreement), which has been ratified by the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Act 2002 (WA).

3. Clause 7(6) of the State Agreement provides:

   In respect of each proposal hereunder the Project Proponents in relation thereto shall subject to and in accordance with the EP Act and any approvals and licences required under that Act implement the approved proposals in respect of the Project in accordance with the terms thereof and subject to marketing arrangements and reasonable maintenance and operational shut down requirements the Project Proponents shall ensure continuous operation of the Project.

4. In 2017, the CITIC Parties submitted mine continuation proposals (2017 MCPs) for approval by Mineralogy and a submission to the relevant Minister in the government of Western Australia for approval.  Mineralogy did not submit the 2017 MCPs to the Minister for approval.  As a consequence, the CITIC Parties commenced proceedings against Mineralogy.  Those proceedings were heard by K Martin J between February and April 2022.

5. On 7 March 2023, his Honour delivered reasons for decision dismissing the CITIC Parties claims (apart from in relation to a program of drilling works) (2023 Reasons).[5] Advance (embargoed) copies of the 2023 Reasons were provided to the parties' solicitors on or about 3 March 2023.[6]

   [5] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 15] [2023] WASC 56.

   [6] Affidavit of David William John filed 26 March 2025 [11].

6. On receipt of the advance 2023 Reasons, advice was provided to the CITIC Parties concerning both the contents of the advance 2023 Reasons as well as 'mine continuation issues'.[7]  Shortly after this, the CITIC Parties instructed Allens to prepare the 2023 MCPs.  Mr John's evidence is that given the relationship and history of litigation between the CITIC Parties and Mineralogy, he 'anticipated that Mineralogy would likely dispute the validity of any new mine continuation proposal, and that litigation would likely follow'.[8]

   [7] Affidavit of David William John filed 26 March 2025 [13].

   [8] Affidavit of David William John filed 26 March 2025 [15].

7. From March 2023 until about August 2023, the 2023 MCPs were drafted by Allens on behalf of the CITIC Parties.[9]

   [9] In these reasons, I have referred to all drafts of these documents as the 2023 MCPs.  While the agreements are described in different terms in the sample documents, including as a 'Site Lease Area - Interim MCP', any differences in the descriptions are not material to the conclusions I have reached.

8. On 18 August 2023, the CITIC Parties sent the 2023 MCPs to Mineralogy requesting their submission to the Minister for approval.  This has not occurred.

9. On 27 November 2023, the CITIC Parties commenced these proceedings.

Procedural background

1. The application was originally listed before me for hearing on 3 April 2025.  When the matter came on for hearing, the parties agreed that the first matter that should be addressed was the CITIC Parties' application for confidentiality orders over the confidential affidavit of Mr John filed on 26 March 2025.  During that hearing, it became apparent that this affidavit had not been served on the solicitors for Mineralogy and that broad orders for confidentiality were sought, including as against Mineralogy's senior and junior counsel and its solicitors.  For the reasons given on 3 April 2025, I did not consider that confidentiality orders should be made over the whole affidavit and ordered that a redacted affidavit be filed and served on counsel and the solicitors for Mineralogy as soon as possible.

2. Following service of the redacted affidavit, Mineralogy sought an adjournment of the hearing for two reasons.  First, it had only just received the redacted affidavit and required time to consider it.  Second, it contended that the conduct of the CITIC Parties in filing the confidential affidavit was a waiver of privilege in relation to the documents attached to that confidential affidavit.

3. I heard Mineralogy's application in relation to waiver on 7 April 2025 and delivered oral reasons that day dismissing the application. Following this, Mineralogy's application for inspection was listed for the afternoon on 9 April 2025. The hearing did not conclude until after 5.30 pm that day.

4. In circumstances where the trial is listed to commence in less than five business days' time, there is some significant urgency in making orders on the application.  On that basis, the reasons for the decision that I have made are not as fulsome as they might otherwise be.

Relevant legal principles

1. The relevant legal principles that govern this application are well established and can be summarised as follows.

2. A party who is claiming legal professional privilege carries the onus of establishing the claim is well founded.  In claiming privilege, the party is required to:

   (a)list each communication the subject of the claim for privilege;

   (b)state the form in which each communication is contained, stored or recorded, whether it is an original or a copy and the date when each was made;

   (c)identify the persons between whom the communication or communications were made; and

   (d)provide evidence as to the basis of the claim for legal professional privilege.[10]

   [10] Rayney v AW [2009] WASCA 203 [42] citing with approval National Crime Authority v S (1991) 29 FCR 203, 212; Kennedy v Wallace [2004] FCAFC 337; (2004) 142 FCR 185 [13].

3. Evidence in support of the claim for legal professional privilege should be focused and specific. Where possible, the evidence should explain the thought processes behind, or the nature and purpose of advice being sought in respect of each particular document.[11]

   [11] Barnes v Commissioner of Taxation (Cth) [2007] FCAFC 88; (2007) 242 ALR 601 [18].

4. Order 26 r 9 of the Rules of the Supreme Court 1971 (WA) (Rules) gives the court power on an application by a party to make an order for inspection of documents. Pursuant to O 26 r 12 of the Rules, Mineralogy bears the evidentiary onus to show that the CITIC Parties' claim of privilege is unfounded or mistaken.[12]  In discharging this onus, Mineralogy may rely on all of the evidence that is before the court.[13]

   [12] CTC Resources NL v Australian Stock Exchange Ltd [2000] WASCA 19; (2000) 22 WAR 48 [33] ‑ [34].

   [13] Carey v Korda [2012] WASCA 228; (2012) 45 WAR 181 [70].

5. Legal professional privilege takes one of two forms: advice privilege or litigation privilege.  Legal advice privilege covers communications between a lawyer and their client if they are confidential and for the dominant purpose of giving or obtaining legal advice.  Litigation privilege covers confidential communications made after litigation is commenced or is contemplated between a lawyer and their client or third parties for the dominant purpose of the litigation.

6. In considering whether a communication is privileged, the relevant issue is the dominant purpose for which the communication was made.[14]  Dominant purpose does not mean the primary or substantial purpose,[15] but the prevailing or most influential purpose.[16]  If there are two purposes for which the document came into existence which are of equal weight, neither purpose is dominant and the document is not privileged from production.[17]

   [14] Esso Australia Resources Ltd v Commissioner of Taxation (Cth) [1999] HCA 67; (1999) 201 CLR 49 [61] (Gleeson CJ, Gaudron & Gummow JJ), [173] (Callinan J).

   [15] Grant v Downs (1976) 135 CLR 674, 678 (Barwick CJ).

   [16] Commissioner of Taxation (Cth) v Spotless Services Ltd [1996] HCA 34; (1996) 186 CLR 404, 416.

   [17] AWB Ltd v Cole [2006] FCA 571; (2006) 152 FCR 382 [106] citing with approval Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd [2005] FCA 1247; (2005) 225 ALR 266 [30] (Kenny J).

7. In determining the dominant purpose of a document, the starting point is to ask what the intended use or uses of the document was and why it was brought into existence.  Legal professional privilege can attach to a copy of a non-privileged document if the purpose of bringing the copy into existence is different from the original purpose.[18]

   [18] Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501, 507 (Brennan CJ), 544 (Gaudron J), 553 - 554 (McHugh J), 571 (Gummow J), 587 (Kirby J); AWB Ltd v Cole [107].

8. Ordinarily, the relevant purpose is that of the author of the document, although this is not invariably the case.[19]  In some circumstances it may be necessary to consider the purpose of other people who were involved in the decision-making that led to the creation of the document and its communication.[20]  That said, the subjective intention of the author, or person(s) who authorised or procured it, is not necessarily conclusive.[21]  The dominant purpose must be determined objectively, having regard to the evidence, the nature of the documents and the submissions of the parties.[22]  The question as to whether a document was brought into existence for the dominant purpose of obtaining legal advice is a question of fact.[23]

   [19] Grant v Downs (677) (Barwick CJ).

   [20] AWB Ltd v Cole [107].

   [21] Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd [30].

   [22] Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd [30].

   [23] AWB Ltd v Cole [102].

9. The fact that a document is sent by email to a legal practitioner for legal advice is not, of itself, determinative of the dominant purpose for which the document was created, nor that one intended use of the document is more dominant than any other use.[24]

   [24] AWB Ltd v Cole [118].

1. In most cases, the time for considering the dominant purpose of the document is the time the document was brought into existence.[25]  However, in some cases, a time later than the date on which the document came into existence may be relevant.  This is because it is the communication and not the document that is the subject of the claim of privilege.[26]

   [25] AWB Ltd v Cole [110].

   [26] Galway v Constable [2001] QSC 180; [2002] 2 Qd R 146 [28] (Holmes J).

2. In certain circumstances, communications between non-lawyers may be privileged, including:[27]

   (a)communications that were prepared for the purpose of being used to obtain legal advice or assistance;

   (b)communications recording communications which are themselves privileged, or contain a record of those communications, or relate to information sought to enable the legal advisers to provide advice to their client or to conduct litigation;

   (c)communications made with reference to litigation (either anticipated or commenced) and at the request or suggestion of the party's solicitor, or communications created for the purpose of being provided to the solicitor with the object of obtaining advice or to prosecute or defend an action; and

   (d)communications containing or recording knowledge, information or beliefs of the client derived from privileged communications made to by their solicitor.

   [27] CMA Assets Pty Ltd v John Holland Pty Ltd [No 3] [2012] WASC 501 [17].

3. In considering whether a communication is seeking or giving legal advice, the court should not take a narrow view.[28]  Legal advice is not confined to providing advice on the law but includes advice 'as to what prudently and sensibly should be done in the relevant legal context'.[29]  As Allsop J stated in DSE (Holdings) Pty Ltd v Intertan Inc, it will be rare that a communication between a client and lawyer, once retained, is not connected with the request or provision of legal advice.[30]  The rationale for this approach was summarised by Taylor LJ in Balabel v Air-India as follows:[31]

   [T]he purpose and scope of the privilege is still to enable legal advice to be sought and given in confidence. In my judgment, therefore, the test is whether the communication or other document was made confidentially for the purposes of legal advice.  Those purposes have to be construed broadly.  Privilege obviously attaches to a document conveying legal advice from solicitor to client and to a specific request from the client for such advice.  But it does not follow that all other communications between them lack privilege.  In most solicitor and client relationships, especially where a transaction involves protracted dealings, advice may be required or appropriate on matters great or small at various stages.  There will be a continuum of communication and meetings between the solicitor and client.  The negotiations for a lease such as occurred in the present case are only one example.  Where information is passed by the solicitor or client to the other as part of the continuum aimed at keeping both informed so that advice may be sought and given as required, privilege will attach.  A letter from the client containing information may end with such words as 'please advise me what I should do.'  But, even if it does not, there will usually be implied in the relationship an overall expectation that the solicitor will at each stage, whether asked specifically or not, tender appropriate advice.

   [28] Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325, 333.

   [29] Balabel v Air-India [1988] 1 Ch 317, 330 cited with approval in DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 1191; (2003) 135 FCR 151 [21], [25] ‑ [71] (Allsop J). See also Strzelecki Holdings Pty Ltd v Cable Sands Pty Ltd [No 2] [2009] WASC 150 [24] ‑ [25] (Beech J).

   [30] DSE (Holdings) Pty Ltd v Intertan Inc [51], [52], [71] cited with approval in AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30 [48].

   [31] Balabel v Air-India (330).

4. Draft documents or agreements that are prepared or commented on by legal practitioners are prima facie privileged because they may reveal confidential communications between the legal practitioner and their client.[32]  In considering a draft document, it is relevant to consider whether the particular draft of the document was prepared by legal practitioners to be circulated to third parties or only to the client.[33]  However, where the document would have been brought into existence in any event without an intention to obtain legal advice on its contents, legal professional privilege will not attach to the document.[34] 

   [32] Dalleagles Pty Ltd v Australian Securities Commission (331 - 332).

   [33] Hooke v Bux Global Limited [No 3] [2018] FCA 1038 [17] ‑ [20].

   [34] Grant v Downs (688).

5. In Re Southland Coal Pty Ltd (recs and mgrs apptd) (in liq), Austin J explained why this was the case as follows:[35]

   A claim for privilege will not succeed if all that emerges is that the document is a commercial document or has been brought into existence in the ordinary course of business — In these circumstances, unless the court is satisfied that the dominant purpose is that identified in ss 118 or 119, no privilege applies. It is necessary to distinguish between documents brought into existence to communicate legal advice, and documents brought into existence to allow the party seeking to maintain privilege to invite comment on commercial alternatives available to it or to allow it to make a decision in the ordinary course of its insurance business as to whether or not to grant indemnity.  The former may be privileged, but the latter is not, as it does not satisfy the dominant purpose test.  The nature or character of the documents may illuminate the purpose . (citations omitted)

   [35] Re Southland Coal (recs and mgrs apptd) (in liq) [2006] NSWSC 899 [14(i)].

6. In this case, a number of the documents over which privilege is claimed are multi-addressee emails.  In The Civil Aviation Authority v The Queen (on the Application of Jet2.com Ltd),[36] Hickinbottom LJ considered that the appropriate approach to multi-addressee emails was as follows:[37]

   (a)In respect of a single multi-addressee email sent simultaneously to various individuals for advice or comment, including a lawyer for input, the purpose of the communication needs to be identified.  In identifying the purpose, the court must take into account the wide scope of legal advice and the concept of 'continuum of communications'. If the dominant purpose of the communication is to settle instructions to the lawyer, the communication will be covered by legal advice privilege even if the communication is sent to the lawyer by way of information or is part of a series of communications with the dominant purpose of instructing the lawyer.  However, if the dominant purpose is to obtain the commercial views of the non‑lawyer addressees, it will not be privileged even if a subsidiary purpose is to obtain legal advice from the lawyer.

   (b)If the response from the lawyer contains legal advice, the communication will almost certainly be privileged even if it is copied to more than one addressee.

   (c)Multi-addressee communications should be considered as separate communications between the sender and each recipient.  Where the email seeks both legal advice and non‑legal advice or input, those to and from the lawyer will be privileged but otherwise they will not be privileged unless the dominant purpose is to instruct the lawyer.

   [36] The Civil Aviation Authority v The Queen (on the Application of Jet2.com Ltd) [2020] EWCA Civ 35.

   [37] TheCivil Aviation Authority v The Queen (on the Application of Jet2.com Ltd) [100].

7. In respect of this last aspect, the court acknowledged that there was some debate as to whether multi-address communication should be considered as separate bilateral communications between the sender and each recipient or considered as a whole, but considered the better view was that they should be considered as separate communications.[38] 

   [38] Civil Aviation Authority v Jet2.com Ltd [100(iv)].

8. In TEC Hedland Pty Ltd v The Pilbara Infrastructure Pty Ltd, I expressed the view that this approach is the correct approach because there may be different purposes in sending emails to each of the recipients of a multi-addressee email and it is necessary to consider which of these purposes, if any, is dominant.[39]

   [39] TEC Hedland Pty Ltd v The Pilbara Infrastructure Pty Ltd [2020] WASC 364 [26] ‑ [29].

Have the CITIC Parties discharged their onus in establishing that all documents are privileged?

1. The only evidence before the court in relation to the privilege claim asserted by the CITIC Parties are the two affidavits of Mr John.  Mr John's affidavits do not address in any detail the terms or scope of the Allens' retainer.  Nor do they explain (even on information and belief) the purpose that any of the documents were brought into existence.  Instead, Mr John's evidence is that the dominant purpose of the documents should be:

   (a)'inferred' from certain matters;[40]

   (b)understood in the context of particular matters;[41] or

   (c)based on the contents of the document and any annexures.[42]

   [40] See, for example, redacted affidavit of David William John filed 7 April 2025 [28], [32], [38], [44], [49], [58], [63], [66].

   [41] See, for example, redacted affidavit of David William John filed 7 April 2025 [41] - [42].

   [42] See, for example, redacted affidavit of David William John filed 7 April 2025 [52], [55], [69], [72], [76], [78].

2. In my view, this evidence is neither sufficiently focussed nor specific.  As was noted by Austin J in Re Southland Coal:[43]

   [E]vidence by a lawyer on information and belief about his or her client's motivation in causing a communication to occur, if allowed, will not of itself be sufficient to establish that the dominant purpose of the communication attracts legal advice or litigation privilege . But the lawyer may be in a position to give admissible evidence about the circumstances surrounding the communication, which will suffice, perhaps together with inferences from the document itself, to establish the privilege. Further, the purpose of a communication between a client and a lawyer can in some circumstances be inferred from the purpose of the lawyer's retainer.

   [43] Re Southland Coal (recs and mgrs apptd) (in liq) [28].

3. However, as the test of 'dominant purpose' is an objective test, it is necessary to consider the context in which the 2023 MCPs were drafted to determine whether the CITIC Parties have discharged their onus.

4. Senior counsel for the CITC Parties placed significant emphasis on those decisions which referred to or upheld claims for privilege based on a 'continuum of communications'.[44]   In so far as privilege was claimed over the internal communications of the CITIC Parties, Mr John's evidence is that Ms Dillon acted as a 'conduit' between external legal counsel and internal CITIC personnel, and passed on communications as required between the external legal team and the internal personnel from whom information, technical input or advice was sought.[45]

   [44] See, for example, Balabel v Air-India (330); DSE (Holdings) Pty Ltd v Inter-Tan.  See also Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [2024] WASC 132 [109].

   [45] Redacted affidavit of David William John filed 7 April 2025 [22].

5. In the CITIC Parties' submission, the continuum of communications started with the delivery of the draft reasons for decision.  At that time, the CITIC Parties were running out of space for waste rock and tailings storage on its approved mine plans and required an expansion of the areas available for these purposes.  This, in turn, required the approval of amended plans under the State Agreement.  In that context, it was submitted that the 2023 MCPs were drafted in a 'legal minefield' which required the CITIC Parties to:

   (a)follow the guidelines in the 2023 Reasons;

   (b)meet all the contractual requirements under the State Agreement; and

   (c)minimise the risk of Mineralogy refusing the 2023 MCPs and maximise the prospects of success of the 2023 MCPs being submitted to the State and approved.

6. While I accept this submission, this does not, in my view, mean that all documents created in relation to the 2023 MCPs are privileged.  On the evidence before the court, I find that it is possible that the documents were created by the CITIC Parties for the following purposes or intended uses:

   (a)to draft and obtain 2023 MCPs which complied with the guidelines in the 2023 Reasons, complied with the State Agreement, minimised the prospect for rejection by Mineralogy and maximised the prospects of successful submission to the State;

   (b)for use in any subsequent litigation between Mineralogy and the CITIC Parties concerning the 2023 MCPs, of which Mr John believed would likely be commenced following their submission;[46] and

   (c)for the CITIC Parties' operational reasons, namely, to seek authorisation of the space available for waste rock and tailings storage to enable the continuation of mining.

   [46] Affidavit of David William John filed 26 March 2025 [15].

7. In order for the claim for privilege to be sustained over all of the documents, the CITIC Parties must show that the first (or possibly second) of these purposes was the dominant purpose for the creation of all the documents.  No evidence was adduced from any employee of the CITIC Parties in this regard.  Nor is there evidence as to the scope of the Allens' retainer.  In my view, in the absence of this evidence, it is not possible to draw any conclusion as to the dominant purpose for which the documents (as a whole) were created.  On this basis, I do not accept that the CITIC Parties have discharged their onus in establishing a claim for legal professional privilege over the entirety of these documents.

8. For two primary reasons, I also do not accept that the CITIC Parties can maintain a claim for privilege over these documents based on litigation privilege. 

9. First, I do not accept that the 2023 MCPs were prepared for the dominant purpose of addressing future litigation that may arise between these parties.  As was accepted by senior counsel for the CITIC Parties, at least one of the purposes for the preparation of the 2023 MCPs was to submit them to Mineralogy (and ultimately, the Minister) for approval.

10. Second, while I accept that there was a prospect that litigation would eventuate between the parties in relation to the 2023 MCPs, I do not accept that at the time any of these documents were prepared (between 8 March 2023 and 24 August 2023), it can properly be said that litigation was contemplated.  Whether or not litigation would be commenced ultimately depended on what actions, if any, Mineralogy took in response to the submission of the 2023 MCPs.  This was not known to the CITIC Parties until 30 August 2023.[47]

    [47] Statement of Claim [67].

11. Before turning to consider the sample documents, it is useful to make two further observations at a general level.

12. First, while courts have consistently upheld claims for legal professional privilege when assessing claims for privilege over communications between solicitors and their clients, this does not mean that all internal communications of the CITIC Parties will also be privileged.  This was not the subject of argument in Balabel v Air‑India[48] nor any of the other cases on which the CITIC Parties rely.  I do not accept that all internal communications form part of the 'continuum of communications' as contended by the CITIC Parties.

    [48] Balabel v Air-India (319C).

13. Second, while I do not accept the CITIC Parties' submission that they have discharged their onus in establishing that all documents are privileged, this does not mean that none of the documents are privileged from inspection by Mineralogy.  In this regard, I do not accept Mineralogy's submission that because the 2023 MCPs are a 'commercial and technical document' which was always intended to be provided to Mineralogy, none of the related documents can be privileged.[49]  Almost invariably, commercial documents are drafted with the intention that they will ultimately be presented to a counter-party or, in the case of a prospectus, lodged with the Australian Securities and Investments Commission.  Given this, the fact that the 2023 MCPs are a 'commercial and technical document' does not, of itself, mean that none of the documents are properly the subject of a claim of legal professional privilege.  As summarised above, it will depend on the nature of the document and why it was brought into existence.

    [49] ts 1640.

14. Given these general observations, it is necessary to review the sample documents to determine, in relation to each document, whether the dominant purpose can be inferred from the nature and description of the document and its contents, and whether the CITIC Parties have discharged their onus.

Should inspection of the documents be ordered?

1. To assist the court in determining whether inspection of the documents subject to the claim of legal professional privilege should be ordered, the court was provided with a sample of 15 documents on a confidential basis. I address each of these documents under the category within which it falls, as set out at [7] above.

2. In assessing the documents, I have had regard to the factual background set out above as well as the following matters.

   (a)On 8 March 2023, Ms Dunn (who works with Ms Dillon in the Special Projects team), emailed Mr Goodwin (copying in Ms Dillon) a draft 2023 MCP which contains in its footer 'Allens Revision B' and contains highlighted drafting notes of Allens throughout.[50]

   (b)Between 9 March 2023 and 13 March 2023, communications were exchanged between representatives of the CITIC Parties in relation to the first draft of the 2023 MCP.[51]

   (c)On 14 March 2023, Mr Goodwin sent the 'first draft' of the 2023 MCP to Ms Dillon, who sent it to Allens and HSF.[52]

   (d)On 17 March 2023, Allens provided to Ms Dillon (copied to HSF) a draft 'Third Sino Iron Concentrate Proposal' (or 2023 MCP).[53]

   (e)On 30 March 2023, a workshop was held to discuss the 'Draft of Project Proposal for SLA Area' which was attended by representatives of the CITIC Parties, Narsimhan Sekar (a consulting mine planning expert), as well as representatives of both Allens and HSF.[54]

Category One: Documents up to and including 14 March 2023

[50] Redacted affidavit of David William John filed 7 April 2025 [20(b)].

[51] Redacted affidavit of David William John filed 7 April 2025 [20].

[52] Redacted affidavit of David William John filed 7 April 2025 [20(f)], [21(a)].

[53] Redacted affidavit of David William John filed 7 April 2025 [21(b)].

[54] Redacted affidavit of David William John filed 7 April 2025 [24(a)].

1. Mineralogy nominated six documents for inspection within this category.

Document 1: CPM.680.043.9014

1. This document is an email from Mr Tambunan to Rolly de Asis, Hugh Trenwith, and Wai Ng, dated 8 March 2023 and titled 'Query for 2016 Life of Mine Plan and MCP'.  Each of the addressees are members of Mr Tambunan's mine planning team.[55]

   [55] Redacted affidavit of David William John filed 7 April 2025 [26].

2. The CITIC Parties submit that because this email was sent immediately after the publication of the 2023 Reasons, an inference should be drawn that the reason for the enquiry was to assist with a technical review and update for information for input into what became the 2023 MCPs.  Mr John's evidence is that 'the dominant purpose of Mr Tambunan's enquiry was to provide input into the [2023 MCP], which was to be the subject of advice and detailed drafting'.[56]  Mineralogy denies that this is the only inference that is open and says that on its description, the email appears to have been created for the purpose of the underlying commercial and technical discussions that were occurring as to how to extract the more than 2 billion tonnes of ore on the tenements.[57]

   [56] Redacted affidavit of David William John filed 7 April 2025 [30].

   [57] ts 1640 - 1641.

1. From the description of this document, I infer that this email raised a query in relation to a previous Life of Mine Plan and MCP.  This inference is supported by my inspection of the document.  On its face, the email does not appear to have been created for the dominant purpose of being used to obtain legal advice (which is the only possible category of [38] that this email could fall within).  The CITIC Parties have not adduced any evidence to contradict this view, or to explain why this email was sent at this time to these particular addressees. 

2. I do not accept that the CITIC Parties have discharged their onus in establishing that the dominant purpose for the creation of this email or the reason it was sent to these recipients was for the email (or its contents) to be used in obtaining legal advice or recording legal advice that had been given.  In my view, an inference that is equally open is that the email was created for operational reasons, namely in considering or amending a further Life of Mine Plan.  There is no evidence on which I could be satisfied as to which is the dominant purpose.

3. Mr John's evidence is that the email was sent for the 'ultimate purpose' of providing instructions to Allens.  Even if this were the case (on which I make no finding), I do not consider this would be sufficient to discharge the CITIC Parties' onus.  While I accept that instructions to Allens on the preparation of the 2023 MCP are, prima facie, likely to be privileged (subject to the ultimate question as to whether the dominant purpose of any particular document is for the purpose of giving or receiving legal advice or whether it can be viewed in that continuum), in my view, internal emails between personnel of the CITIC Parties which discuss commercial or operational matters prior to any instructions being given are not.

4. For these reasons, I do not consider that the CITIC Parties' claim for privilege in respect of this document can be maintained and allow Mineralogy's application for production of this document for inspection.

Document 2: CPM.680.042.9385

1. This is an email chain which concludes in an email from Bruce Watson, who is General Manager, Sustainability and Environment, to Mr Goodwin, Deputy Chief Operating Officer, dated 10 March 2023 and titled 'FW: Interim (SLA) MCP and PoW [Program of Works]'.  The email attached a draft 2023 MCP containing the comments of Mr Watson and Mr Goodwin in mark‑up.  The attachment was not in the bundle of documents provided to me.  However, I infer from the description of the document that the attachment to this email contains the comments of both Mr Watson and Mr Goodwin in relation to a draft of the 2023 MCP. 

2. Mr John's evidence is that the attachment to the email contains comments reflecting queries from Allens and responses to those queries from Mr Watson and Mr Goodwin.  On this basis, the CITIC Parties submit that the dominant purpose of this communication to provide instructions to Allens for the purpose of drafting the 2023 MCP.  In contrast, Mineralogy says that the email reflects a discussion between two people within the CITIC Parties trying to work out what proposal should be put to Mineralogy.[58]

   [58] ts 1641.

3. Without inspecting the attachment to this email, it is not possible to resolve the question of whether or not this document (and its attachment) is privileged.  Whether the comments reflected in the attachment are privileged will depend on the nature of the comments.  If the dominant purpose of the communication from Mr Watson to Mr Goodwin is to settle the instructions to be provided to Allens, the communication will be covered by legal advice privilege.  If, however, the dominant purpose of the communication is to obtain the commercial views of Mr Watson and/or Mr Goodwin, it will not be privileged even if a subsidiary purpose of the email is to ultimately obtain legal advice.

4. My preliminary view is that the CITIC Parties have not discharged its onus in establishing the email is privileged.  However, before making a final ruling on this document, my preliminary view is that I should exercise my discretion to inspect the attachment to this email. 

Document 3: CPR.680.044.5081

1. This is a record of a Microsoft Teams message between Mr Tambunan and Bruce Ziao, Superintendent Planning, dated 12 March 2023.

2. Mr John's evidence is that an inference should be drawn from the date and content of this message that it was created for the purpose of providing input into the draft of the 2023 MCP, and that its production would tend to reveal the contents of its legal advice.[59]  Mineralogy denies this inference arises and submits that from its description, the document appears to concern an internal discussion as to what would be proposed to Mineralogy.[60]

   [59] Redacted affidavit of David William John filed 7 April 2025 [38].

   [60] ts 1641.

3. From the description of the document and my inspection of its contents, I do not accept the only inference that arises is that the document was created for the purpose of providing instructions to Allens, or that its inspection would tend to reveal the legal advice that had been received.  In my view, the CITIC Parties have not discharged their onus in establishing that the dominant purpose for the creation of this message was to obtain legal advice or to record advice that had been given, or that its production would reveal the contents of any legal advice that had been received. 

4. On this basis, it is my view that the CITIC Parties' claim for privilege in respect of this document cannot be upheld and allow Mineralogy's application for production of this document for inspection. 

Document 4: CPM.680.042.8966

1. This is an email chain between Mr Goodwin and Ms Dillon, dated between 12 and 13 March 2023 and titled 'Powerline to Village'.  The last of these emails sent by Ms Dillon also copies in Ms Dunn. The evidence of Mr John is that this communication records a query by Mr Goodwin to Ms Dillon and the responses to that query.  This evidence is consistent with my inspection of the document. 

2. The CITIC Parties submit that this email was sent to inform the revision of the draft 2023 MCPs for the purpose of providing instructions to Allens.[61]  Mineralogy denies this purpose is apparent from the description of the document which does not, on its face, suggest it was created for the dominant purpose of giving or receiving legal advice.[62]

   [61] Redacted affidavit of David William John filed 7 April 2025 [41].

   [62] ts 1641.

3. I accept that there is nothing in the description of the document that suggests it was created for the purpose of giving or receiving legal advice.  From my inspection of the document, I do not accept that the CITIC Parties have discharged their onus in establishing that the dominant purpose for the creation of this email was to obtain legal advice or to record advice that had been given.  As set out above, while I accept that the instructions to Allens on the preparation of the 2023 MCP may well be privileged (subject to the ultimate question as to whether the dominant purpose of any particular document is for the purpose of giving or receiving legal advice, or whether it can be viewed in that continuum), it is my view that the internal emails between personnel of the CITIC Parties prior to any instructions being given are not privileged.

4. That said, from my inspection of the email, I accept that the email from Ms Dillon to Mr Goodwin (sent on 12 March 2023 at 2.24 pm) on the second page of the email contains a summary of legal advice the CITIC Parties had obtained, and that inspection of this particular email may disclose the contents of this legal advice.  I accept that this email is privileged and should be redacted from the copy provided to Mineralogy.

5. In relation to the remainder of the document, it is my view that the CITIC Parties' claim for privilege cannot be maintained and allow Mineralogy's application for production of a redacted copy of this document for inspection.

Document 5: CPM.680.048.6530

1. This is an email chain between Mr Goodwin to Mr Tambunan, dated between 12 and 13 March 2023 and titled 'RE: Optimised Concept Design ‑ EDI'.

2. The CITIC Parties submit that because this email was sent immediately after the publication of the 2023 Reasons, an inference should be drawn that the reason for the enquiry was to assist with a technical review and update for information for input into what became the 2023 MCPs.  Mr John's evidence is that 'the dominant purpose of Mr Tambunan's enquiry was to provide input into the [2023 MCP], which was to be the subject of advice and detailed drafting'.[63]  Mineralogy denies that the CITIC Parties have discharged their onus and say that the email records 'technical work product developed and progressed' by them.[64]

   [63] Redacted affidavit of David William John filed 7 April 2025 [30].

   [64] ts 1642.

3. I do not accept that the CITIC Parties have discharged their onus in establishing that the dominant purpose for the creation of this email or the reason that it was sent to these recipients was to obtain legal advice or to record advice that had been given.  This is consistent with Mr John's evidence which, on its face, is that the enquiry was made for the ultimate purpose of providing instructions to Allens.  While the final instructions given to Allens on the preparation of the 2023 MCP may well be privileged (subject to the ultimate question as to whether the dominant purpose of any particular document is for the purpose of giving or receiving legal advice or whether it can be viewed in that continuum), as set out above, I do not accept that the internal emails between personnel of the CITIC Parties prior to instructions being given are privileged.

4. On this basis, it is my view that the CITIC Parties' claim for privilege in respect of this document cannot be upheld and allow Mineralogy's application for production of this document for inspection.

Document 6: CPM.680.043.1431

1. This is an email from Mr Watson to Mr Goodwin, dated 14 March 2023 and titled 'RE: final Draft before Helen and Lawyers'.  The email attaches a draft 2023 MCP containing revisions made by Mr Watson.  A copy of the attachment was not provided to the court for inspection.

2. Mr John's evidence is that a substantially similar version of the draft was provided by Mr Goodwin to Ms Dillon, who then provided it to Allens and HSF on the same day.  On this basis, the CITIC Parties contend that the dominant purpose of the communication was to finalise comments for provision to Allens for their consideration and drafting.  Mineralogy does not accept this is the case and says that, on its face, the document appears to be an internal draft prior to it being sent to the solicitors.[65]

   [65] ts 1642.

3. Without inspecting the attachment to this email, it is not possible to resolve the question as to whether this document is privileged.  This is because whether or not the attachment is privileged will depend on whether the attachment includes comments which may disclose the legal advice that has been received or whether the comments were created for the purpose of providing instructions (as opposed to commercial or operational input). If the dominant purpose of the communication is to provide instructions to Allens, the communication will be covered by legal advice privilege.  If, however, the dominant purpose of the communication is to provide the commercial or operational views of Mr Watson, it will not be privileged even if a subsidiary purpose is to provide instructions to Allens for the purpose of obtaining legal advice.

4. Before making a final ruling on this document, my preliminary view is that I should exercise my discretion to inspect the attachment to this email.

Category Two: Documents after 14 March 2023 between people other than external legal advisors

1. Mineralogy nominated six documents which fall within this category.

Document 7: CPM.680.043.2082

1. This is an email from Ms Dillon to Mr Goodwin and various people within CITIC (including the general counsel Mr Knowles), dated 17 March 2023 and titled 'Draft of Project Proposal for SLA Areas - LPP Applies'.  It is clear from the email that it attached a document titled 'Third Sino Iron Concentrate Proposal'.  This attachment was not provided to the court for inspection.

2. Mr John's evidence is that the attachment to the email was 'turned around by the legal team'.  The covering email includes a section titled 'Comments from Litigation Team'.[66]  Mineralogy does not accept that the CITIC Parties have discharged their onus in establishing the necessary dominant purpose of this document.[67]

   [66] Redacted affidavit of David William John filed 7 April 2025 [50] ‑ [51].

   [67] ts 1642 ‑ 1643.

3. From my inspection of the email, I accept that the dominant purpose for the creation of this email was for Ms Dillon to circulate a draft prepared by its solicitors and to summarise the legal advice the CITIC Parties had obtained from their litigation team of solicitors.  Given this, I accept that inspection of this email may disclose the legal advice obtained by the CITIC Parties.  On this basis, I accept that the claim for privilege over this email is well founded and should be upheld.

Document 8: CPM.680.126.0440

1. This is an email from Lena Han to Qiang Yue, dated 21 March 2023 and titled 'FW: Documents for Helen'.  The email forwarded an email from Mr Goodwin to Ms Han and attached a number of documents.  None of these documents were provided to the court for inspection.

2. Mr John's evidence is that Ms Han is the translator for Mr Yue, the Chief Operating Officer of Citic Pacific Mining.  Mineralogy says that the CITIC Parties have not descended to any particularity as to the basis on which they contend this document is privileged and that, as a result, they have not discharged their onus.[68]

   [68] ts 1643.

3. From my inspection of the email, I accept that the dominant purpose of this email is for Mr Goodwin to provide a series of draft documents to Mr Yue.  However, without inspecting the attachments to this email, it is not possible to resolve the question as to whether the email and its contents are privileged.  This is because whether or not the email and attachments are privileged will depend on whether the attachments may disclose the legal advice that had been received by the CITIC Parties. If, however, the dominant purpose of this email is to obtain the commercial or operational views of Mr Yue, it will not be privileged.

4. I am unable to reach any conclusion in relation to this email.  In order to make a final ruling on this document, my preliminary view is that I should exercise my discretion to inspect the attachments to this email.

Document 9: CPM.680.083.7851

1. This is an email from Mr Smith (a GIS[69] specialist) to Mr Goodwin and copied to Mr Tambunan and Mr Wang, dated 4 April 2023 and titled 'RE: Mapping for Special Projects/Allens - next Project Proposal'.

   [69] Graphic Information Systems.

2. Mr John's evidence is that this document records work product that was prepared by Mr Goodwin and Mr Smith for provision to Allens for use and inclusion in the 2023 MCPs.  Mineralogy does not accept this would mean the email is privileged and submits it would only be privileged if the maps were produced for the purpose of obtaining legal advice, as opposed to being attached to the documents being drafted by Allens.[70]

   [70] ts 1643.

3. From my inspection of this email, while I accept that there is a reference to a meeting between Mr Goodwin and Allens, I do not accept that the CITIC Parties have discharged their onus in establishing that the dominant purpose of this email was for the purpose of obtaining legal advice or that there is a risk that its inspection will disclose the legal advice that has been obtained.  On its face, I consider that a purpose of the email is an operational or commercial request for production of a map for inclusion in the 2023 MCP.  There is no evidence as to which of these purposes is the dominant purpose.

4. On this basis, it is my view that the CITIC Parties' claim for privilege in respect of this document cannot be upheld and allow Mineralogy's application for production of this document for inspection. 

Document 10: CPM.680.043.5926

1. This is an email from Charles Yau, Executive Finance Director, to Aaron Huynh, Manager ‑ Treasury, and Mr Tambunan and copied to various people within CITIC, dated 4 April 2023 and titled 'RE: Royalties: A, B and State Government'.

2. Mr John's evidence is that in these emails, Mr Tambunan was seeking a guideline for estimating the calculation of certain royalties.  On this basis, the CITIC Parties submitted that this information was sought for purposes associated with the 2023 MCPs and their preparation, and that the royalty calculation was a 'relevant consideration' in the presentation of the 2023 MCPs.[71]

   [71] Redacted affidavit of David William John filed 7 April 2025 [62] - [63].

3. Mineralogy rejects that this inference arises from the description of the email and says that purpose of the email to consider what should be presented to Mineralogy in the 2023 MCPs.[72]

   [72] ts 1644.

4. From my inspection of this email, I do not accept that the CITIC Parties have discharged their onus in establishing that the dominant purpose of this email was for the purpose of obtaining legal advice, or that there is a risk that its inspection will disclose the content of the legal advice that has been obtained.  On its face, it appears that the dominant purpose (or at least a substantial purpose) for the creation of the email was for commercial (or possibly operational) reasons.

5. On this basis, it is my view that the CITIC Parties' claim for privilege in respect of this document cannot be upheld and allow Mineralogy's application for production of this document for inspection. 

Document 11: CPM.680.044.3071

1. This is an email from Mr Tambunan to Ms Dillon and copied to various persons within CITIC, dated 9 April 2023 and titled 'RE: Base Case Scenario - Restricted Operation to MS635 - LPP applies'.  The email attached a number of documents, none of which were provided for inspection by the court.

2. The CITIC Parties submit that the dominant purpose of this communication can be inferred from the timing of this communication, the involvement of the mine planning consultant, the matters in document 10, and the relationship between mine scheduling and estimated production profiles.  On the basis of these matters, the CITIC Parties say that the dominant purpose was 'associated with the preparation of the 2023 MCPs' and for the purpose of providing instructions in relation to the 2023 MCPs.[73]

   [73] Redacted affidavit of David William John filed 6 April 2025 [63].

3. Mineralogy submits that from its description, the email is a 'quintessentially commercial and assessment and rationalisation within the organisation', which is not privileged.[74]

   [74] ts 1644.

4. While I accept from both the description of the document and an inspection of its contents that the dominant purpose for the creation of this document was associated with the preparation of the 2023 MCPs, this does not, of itself, mean the document is privileged.  In my view, a purpose for the creation of the email and its attachments was for operational or commercial reasons.  There is no evidence as to which of these purposes is the dominant purpose.

5. I do not accept that the CITIC Parties have discharged their onus in establishing the dominant purpose of the email was for the purpose of obtaining legal advice, or that there is a risk that the inspection of these documents will disclose the content of any legal advice that has been obtained.  On this basis, it is my view that the CITIC Parties' claim for privilege in respect of this document cannot be upheld and allow Mineralogy's application for production of this document for inspection.

Document 12: CPM.680.003.6826

1. This is an email from Mr Tambunan to Mr Sekar and various people within CITIC, dated 10 May 2023 and titled 'Third Sino Iron Concentrate Proposal - LPP applies [Allens-DMS.FID1679389]'.  It attaches a document which has not been provided to the court for inspection.  From my inspection of the document, the email is part of an email chain commencing with an email from Mr Woods of Allens to Ms Dillon (and others).

1. The CITIC Parties submit that the emails exchanged between Mr Tambunan and Mr Sekar are for the dominant purpose of providing instructions and input to Allens to enable Allens to revise the 2023 MCPs.

2. While I accept that the dominant purpose of a number of emails in this chain is for the provision of legal advice and that their disclosure would indicate the legal advice that had been obtained, I do not consider that this applies to all emails in the chain.  From my inspection of the document, I consider that a purpose for at least some of the emails in the chain (that being the emails exchanged between Mr Tambunan and Mr Narsimham) was for operational reasons. 

3. I do not accept that the CITIC Parties have discharged their onus in establishing the dominant purpose of the emails commencing with the 9 May 2023 email at 4.11pm (on page 2 of Document 12) was for the purpose of obtaining legal advice, or that there is a risk that the inspection of these emails will disclose the content of any legal advice.  On this basis, it is my view that the CITIC Parties' claim for privilege in respect of this part of the document cannot be upheld and Mineralogy's application for production of this part of the document for inspection should be allowed.

4. However, from my inspection of the email, I accept that inspection of the remainder of the email may disclose the legal advice that the CITIC Parties had obtained.  I accept that this part of email is privileged and should be redacted from the copy provided to Mineralogy.

5. For the reasons above, I allow Mineralogy's application for production of a redacted copy of this document for inspection.

Category Three: Communications connected with the drafting of the 2023 MCPs involving external legal advisers

1. Mineralogy nominated one document for inspection by the court which falls within this category.

Document 13: CPM.680.040.6469

1. This is an email from Mr Goodwin to Mr Woods of Allens and copied to Mr Watson and Mr Brown, dated 11 August 2023 and titled 'FW: 2023 Sino Iron Mine Continuation Proposal - Review of 230809 RBG Northern TSF surface area.xlsx'.

2. This is the last email in a chain of emails commencing with an email from Mr Woods of Allens on 8 August 2023 circulating a draft of the 2023 MCP.  In the email chain are various communications between Ms Dillon, Mr Goodwin, and Allens in relation to the draft 2023 MCP.

3. I accept on the basis of my inspection of the document that the dominant purpose of each of the emails in this email chain was for the purpose of obtaining legal advice from Allens or to provide input and instruction to Allens in the drafting of the 2023 MCP.  I accept that this document is privileged in its entirety.  Mineralogy's application to inspect this document should be dismissed.

Category Four: All drafts of the 2023 MCPs

1. No documents were nominated for inspection which fall within this category.

2. With that said, any claim for privilege made by the CITIC Parties over documents which fall within his category must take account of the general provisions that apply to draft documents, namely:

   (a)draft documents that have been prepared or commented on by Allens or HSF are privileged, because they may reveal confidential communications between the legal practitioner and the CITIC Parties;

   (b)where the particular draft of the document was prepared by legal practitioners to be circulated to third parties or only to the client, it will be privileged; and

   (c)drafts brought into existence without an intention to obtain legal advice on its contents are not privileged.

Category Five: Documents in connection with the presentation to the Department of Jobs, Tourism, Science and Innovation (DJTSI)

1. Mineralogy nominated one document which falls within this category.

Document 14: CPM.682.018.0156

1. This is an email from Mr Newton, Head of Corporate Affairs to Ms Dillon and copied to various persons within CITIC, dated 23 August 2023 and titled 'RE: CITIC - Slide deck for DJTSI consultation ‑ 2023 MCPs - LPP applies [Allens-DMS.FID2397194]'.  The email is part of a chain that commences with an email from Mr Woods of Allens to Ms Dillon, attaching a draft slide deck prepared by Allens for a consultation with the DTJSI.  The slide deck was forwarded to Mr Newton,  Head of Corporate Affairs, for input, who responded to Ms Dillon.   The email attaches a copy of the slide deck, although this was not provided to the court for inspection.

2. The CITIC Parties submit that the dominant purpose of this communication was to provide instructions to Allens in the preparation of the draft slide deck.  Mineralogy does not accept that the CITIC Parties have discharged their onus in establishing this was the dominant purpose for the creation of this document and submits that on its face, the email sought comments from corporate affairs services which cannot be subject to a claim for legal professional privilege.

3. On my inspection of the document, I accept that the slide deck was prepared by Allens, and that the advice provided by Allens is subject to legal professional privilege.  However, on the face of this document, I also accept that a purpose for this email was to provide the slide deck to Mr Newton to seek public relations or corporate affairs input.  On the evidence before me, I am not satisfied that this document was created for the dominant purpose of seeking further legal advice and allow Mineralogy's application for production of this document for inspection.

4. My preliminary view is that this conclusion extends to the attachment to this email.  However, before reaching any conclusion on this attachment, my preliminary view is that I should exercise my discretion to inspect the attachment.

Category Six: Documents in connection with the letter to the Premier of Western Australia (reference 60-062672)

1. Mineralogy nominated one document which falls within this category.

Document 15: CPM.682.018.0122

1. This is an email from Mr Woods of Allens to Ms Dillon, dated 24 August 2023 and titled 'Letter - CITIC Limited to Premier - Reference_60-062672 - Western Australian Collaboration - LPP applies [Allens-DMS. FID2397194]'.  The email attaches two draft documents, neither of which was provided to the court.

2. The CITIC Parties submit that the email and its attachments record legal advice provided by Allens and, as a result, are subject to a claim for privilege.

3. On its face, the email and its attachments are communications between the CITIC Parties and its solicitors, and, as a consequence, are privileged.  I accept that these documents form part of the continuum of advice being provided by Allens to the CITIC Parties and that the claim for privilege is properly made.  Mineralogy's application for inspection of this document should be dismissed. 

Conclusion

1. For these reasons, it is my view that:

   (a)the CITIC Parties' claim for privilege in relation to documents 7, 13, and 15 is properly made and that the application for inspection of these documents should be dismissed;

   (b)parts of documents 4 and 12 are properly subject to a claim of privilege although these documents in their entirety are not.  Those parts of the document that are privileged (as set out above) should be redacted before these documents are produced for inspection by Mineralogy;

   (c)documents 1, 3, 5, 9, 10, 11 and 14 are not properly the subject of a claim for privilege.  An order for inspection will be made in respect of these documents; and

   (d)it is not possible to reach a concluded view on documents 2, 6 and 8 without inspecting the attachments to these documents, or on the attachment to document 14.  These documents should be produced to the court for inspection so that a final decision can be made in respect of these documents.

1. I will hear from the parties as to the orders to be made to give effect to these reasons and as to the costs of the application.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

KC

Associate to the Honourable Justice Hill

17 APRIL 2025