Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 9] - [2022] WASC 471

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   SINO IRON PTY LTD -v- MINERALOGY PTY LTD [No 9] [2022] WASC 471
CORAM:   KENNETH MARTIN J
HEARD:   21 FEBRUARY 2022
DELIVERED          :   21 FEBRUARY 2022
PUBLISHED           :   7 MARCH 2023
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 by second defendant to adjourn trial - Case management considerations

Legislation:

Nil.

Result:

Application refused

Category: B

Representation:

CIV 1915 of 2019

Counsel:

First Plaintiff	:	J Karkar KC, S Parmenter KC, S Free SC, J Kirkwood, T Maxwell & K Dovey
Second Plaintiff	:	J Karkar KC, S Parmenter KC, S Free SC, J Kirkwood, T Maxwell & K Dovey
Third Plaintiff	:	J Karkar KC, S Parmenter KC, S Free SC, J Kirkwood, T Maxwell & K Dovey
First Defendant	:	P Dunning KC, M Karam, K Byrne, H Cooper & D Fawcett
Second Defendant	:	In person (by video link)
Third Defendant	:	A Sefton SC

Solicitors:

First Plaintiff	:	Herbert Smith Freehills
Second Plaintiff	:	Herbert Smith Freehills
Third Plaintiff	:	Herbert Smith Freehills
First Defendant	:	Robinson Nielsen Legal
Second Defendant	:	In person
Third Defendant	:	State Solicitor's Office

CIV 2326 of 2021

Counsel:

First Plaintiff	:	J Karkar KC, S Parmenter KC, S Free SC, J Kirkwood, T Maxwell & K Dovey
Second Plaintiff	:	J Karkar KC, S Parmenter KC, S Free SC, J Kirkwood, T Maxwell & K Dovey
Third Plaintiff	:	J Karkar KC, S Parmenter KC, S Free SC, J Kirkwood, T Maxwell & K Dovey
First Defendant	:	P Dunning KC, M Karam, K Byrne, H Cooper & D Fawcett
Second Defendant	:	In person (by video link)
Third Defendant	:	A Sefton SC

Solicitors:

First Plaintiff	:	Herbert Smith Freehills
Second Plaintiff	:	Herbert Smith Freehills
Third Plaintiff	:	Herbert Smith Freehills
First Defendant	:	Robinson Nielsen Legal
Second Defendant	:	In person
Third Defendant	:	State Solicitor's Office

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

Mineralogy Pty Ltd v Sino Iron Pty Ltd [2022] WASCA 26

KENNETH MARTIN J:

(This judgment was delivered extemporaneously on 21 February 2022 and has been edited from the transcript.)

These are my brief reasons in respect of the two chamber summons of the second defendant, Mr Clive Palmer, filed on Friday, 18 February 2022 (folios 391 and 393).
In terms of the chamber summons seeking further and better discovery (folio 391), I will make an order on that chamber summons - akin to the order that I made in respect of the first defendant, Mineralogy Pty Ltd (Mineralogy) on Wednesday, 16 February 2022 (folio 382) - for it to stand over, in effect, until the reasons of the Court of Appeal in relation to the interlocutory appeal of Mineralogy are published. The Court of Appeal has pronounced the result of that appeal on 8 February 2022, but has not yet provided its reasons. The discovery applications must effectively be deferred until those reasons are provided. (Note: the Court of Appeal have subsequently published their reasons: see Mineralogy Pty Ltd v Sino Iron Pty Ltd [2022] WASCA 26 (delivered 3 March 2022)).
There is an alignment, effectively, as between the documents sought in the schedules to Mineralogy's chamber summons (folio 380) and those in Mr Palmer's chamber summons seeking further and better discovery - save only with respect to one category. That is category 1, where Mr Palmer's schedule displays an extra category.
In respect of category 1, it makes no difference to the position. Indeed, as framed, Mr Palmer would be well advised to take advice about the structure of category 1 in his schedule. I will reserve the question of costs of that application.
For the other chamber summons of Mr Palmer, of Friday, 18 February 2022 seeking to stay the impending trial (Primary Trial), I refuse that application - but I do so on the basis of reserving liberty to Mr Palmer to apply again for the Primary Trial to be stayed, should he so wish, once the reasons for decision of the Court of Appeal are published and made known. The question of costs will be deferred on that application.
As to my reasons refusing to stay the Primary Trial, I essentially accept the submissions by Mr Parmenter KC, senior counsel for the three plaintiffs (CITIC plaintiffs), in opposing the application. There is a qualification in terms of significance in what might or might not have been said as recorded in the transcript of argument before the Court of Appeal that was put before me today. But all that does is simply reaffirm for me the importance of waiting until the Court of Appeal's published reasons for decision determining that appeal are known - so that their full ramifications, as regards further and better discovery implications, if any, can then be better assessed.
The appeal was an interlocutory appeal - in respect of which leave was given. It concerned the question of amendments made or permitted to the pleadings, in particular, further pleadings by the first defendant, Mineralogy, and by the second defendant, Mr Palmer. The appeal having been allowed and orders having been made, Mineralogy, as first defendant, has since then amended its own defence to align with those orders. However, Mr Palmer has not yet amended his own defence, although he had an opportunity to do that under the pre-trial orders I made on Wednesday, 16 February 2022.
I emphasise by way of summary the following points: first, I accept that this is an urgent trial. From extensive materials put before me, which I have read, particularly under the parties' exchanged outlines of opening submissions for the Primary Trial, if the CITIC plaintiffs are correct - and, of course, that has to be determined at this Primary Trial, then the sustained failure of Mineralogy to agree to grant its permission for mine continuation proposals (MCPs) of 2017 to advance further to the Minister is a situation that impacts against the Sino Iron Project and must be addressed quickly. Underlying those MCPs are plans for the Sino Iron Project to obtain further areas out of Mineralogy's tenements which are proximate to the Sino Iron Project. The MCPs seek more space for mining waste materials to be dumped, including, greater areas for tailings storage facilities, greater accessibility to the mine pit area to access underlying magnetite ore, and further areas of space over land at the Cape Preston Port, proposed to be used for the greater levels of stockpiling of processed magnetite concentrate before it is loaded onto ships for export to China.
The sustained inability to obtain those greater areas of tenement space for the Sino Iron Project from Mineralogy to date has, I accept, potential to bear adversely against the continued operation and viability of what is the integrated mining export operation of the Sino Iron Project at Cape Preston Port. There are issues of disputed merit around all those questions to be determined within the Primary Trial. To that extent, the Primary Trial has been set down for hearing in early 2022 since June 2021, for the months or so across February, March and April of 2022.
The logistics of implementing a 'mega trial' of those proportions are hard to contemplate for those unfamiliar with the experience. But a civil mega trial is just that. Its logistical implications are massive. Wasting time or trial days around such a 'beast' is unthinkable.
The range of documents discovered between the parties across three preceding years of interlocutory applications is gargantuan. Currently, some 1948 electronic documents are the subject of a proposed index of trial documents. In physical terms, that equates, today, to, roughly speaking, about 84 lever arch volumes of materials - under old fashioned paper terminology. The resources devoted towards organising a mega trial of this kind cannot be understated. The physical presence of the legal team of barristers and solicitors for only each side of the case (the CITIC plaintiffs), in the courtroom before me in Perth, speaks volumes for the obvious deployment of massive legal resources engaged on all sides so far to reach this point. That commitment of resources on all sides, must be recognised and respected.
The parties' pleadings for this Primary Trial are long, difficult and complex. They now exceed over 400 pages of materials. Respective opening exchanges of written submissions by each side saw 50 pages each of dense opening submissions with vast numbers of case authorities.
The parties presently involved are well resourced and not at all in the position of ordinary litigants. But a waste of public resources by deferring the allocated Primary Trial dates, bearing in mind the preparations made by all sides to date, aggregates to weigh against a stay of the Primary Trial sought by Mr Palmer. For those brief reasons and those articulated by Mr Parmenter KC, there is no basis for the Primary Trial to be stayed, as Mr Palmer seeks. Case management considerations are at the forefront of that assessment of the position.
At this time, the reasons of the Court of Appeal are awaited. But on the further and better discovery application of Mineralogy and Mr Palmer, some further discovery has already been given by the CITIC plaintiffs. On that issue, the parties remain in ongoing dialogue. On my assessment, a stay is simply unjustified and unwarranted in the overall scheme.
My orders cater for a right afforded to Mr Palmer to make a further application. But I note that presently it is only he who pursues a stay application - not the first defendant, Mineralogy Pty Ltd, of which he is, of course, the controller.
Mr Palmer is perfectly entitled, as second defendant, to be self-represented at this Primary Trial - as he is. But in the greater scheme of overall case management, I cannot allow there to unfold what I assess would be a scandalous waste of public resources by a deferment of this Primary Trial - by regard to arguments that, on my assessment, are capable of being managed in the running of the Primary Trial, even if it may be that such case management may require recalling of some trial witnesses, depending on when the reasons of the Court of Appeal are at hand.
There are only a handful of significant lay witnesses scheduled to give evidence in this Primary Trial, essentially, the CITIC plaintiffs' witnesses, Mr Michael Tonkin and Mr Robert Goodwin.
If it proves necessary for them to be cross-examined further by reference to further and better discovery emerging materials, then that will just have to be accommodated if the need manifests.
But it has been my assessment to date, and it remains the assessment, that the position - with the Court of Appeal's reasons not yet being at hand - is well capable of being managed and worked around, if necessary.
On that basis, the application is refused.
I believe the Primary Trial is at last, able to be commenced.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VC
Associate to the Honourable Justice K Martin
7 MARCH 2023