Zuleika Gold Limited formerly known as Dampier Gold Ltd (ACN 141 703 399) v Vango Mining Limited [No 3]
[2025] WASC 399
•23 SEPTEMBER 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: ZULEIKA GOLD LIMITED formerly known as DAMPIER GOLD LTD (ACN 141 703 399) -v- VANGO MINING LIMITED [No 3] [2025] WASC 399
CORAM: PALMER J
HEARD: 15 SEPTEMBER 2025
DELIVERED : 23 SEPTEMBER 2025
FILE NO/S: CIV 1609 of 2020
BETWEEN: ZULEIKA GOLD LIMITED formerly known as DAMPIER GOLD LTD (ACN 141 703 399)
Plaintiff
AND
VANGO MINING LIMITED
First Defendant
DAMPIER (PLUTONIC) PTY LTD
Second Defendant
Catchwords:
Practice and procedure - Whether defendants should have leave to amend defence - Whether trial should proceed on the dates currently allocated
Legislation:
Rules of the Supreme Court 1971 (WA)
Result:
Defendants given leave to amend defence
Trial dates vacated
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr S Penglis SC & Ms B Tariq |
| First Defendant | : | Mr J Garas SC and Ms P Bond |
| Second Defendant | : | Mr J Garas SC and Ms P Bond |
Solicitors:
| Plaintiff | : | Bennett |
| First Defendant | : | Gilbert + Tobin |
| Second Defendant | : | Gilbert + Tobin |
Case(s) referred to in decision(s):
Zuleika Gold Ltd formerly known as Dampier Gold Ltd v Vango Mining Ltd [2022] WASC 357
PALMER J:
Introduction
On 15 September 2025, I gave the defendants leave to amend their defence in terms of a Minute of Fourth Further Re-amended Defence dated 5 September 2025 (the Latest Defence) and vacated the trial of these proceedings that had been due to commence on 15 October 2025.
I indicated that I would deliver reasons for my decision. These are my reasons.
On 27 August 2025 the defendants filed a Third Further Re‑Amended Defence pursuant to O 21 r 3(1) of the Rules of the Supreme Court (the Rules). Order 21 r 3(1) permits the amendment of pleadings without leave, no later than seven weeks before the date fixed for the start of the trial. The defence was filed seven weeks before the date then fixed for the start of the trial.
On 2 September 2025, the plaintiff made an application pursuant to O 21 r 3(3) of the Rules to strike out some of the amendments to the defence.
The application was supported by an Affidavit of Nathan Christopher Ebbs sworn 5 September 2025 (the Ebbs Affidavit). Mr Ebbs deposes that the amendments to the defence raised new issues that would give rise to the need for further lay evidence and discovery and the need to issue subpoenas. He said that permitting the amendments at this late stage would unfairly prejudice the parties' trial preparation.
The Latest Defence was prepared after that strike out application was made but before it was heard (and after further conferral between counsel). The defence further refined the defence filed on 27 August 2025, to address some of the complaints made by the plaintiff. Given the proximity of trial, it is now too late for the defendants to amend their defence without leave and they require leave to amend in terms of the Latest Defence.
The plaintiff objected to the defendants having leave to amend the defence.
A dispute has also arisen about the scope of the defendants' continuing discovery obligations. The parties agreed that there should be a cut‑off date at which continuing discovery might cease but they disagree about that date. They also disagree about the categories of discovery that should be given.
The procedural history of these proceedings
Before turning to consider the amendments made to the Latest Defence, it is relevant to say something about the procedural history of these proceedings.
The trial that had been listed for 15 October 2025 is concerned with the quantum of the damages to which the plaintiff is entitled.
On 11 February 2022, Smith J made orders by consent for the question of whether the plaintiff suffered loss and damage to be deferred and tried separately from questions concerning the defendants' liability.
A trial to determine the defendants' liability was held before Smith J between 21 and 30 March 2022. Smith J delivered judgment on 31 October 2022, finding that the defendants were liable to the plaintiff: Zuleika Gold Ltd formerly known as Dampier Gold Ltd v Vango Mining Ltd [2022] WASC 357 (the Liability Decision).
The defendants appealed the Liability Decision. That appeal was heard on 6 November 2023 and dismissed on 16 May 2024.
On 30 August 2024, Smith AJ (as her Honour had become by then) made orders granting the parties leave to adduce expert evidence at trial and ordered that the parties exchange minutes of expert evidence identifying by reference to each proposed expert:
(a)the field of specialised knowledge of the proposed expert;
(b)the specific questions to be posed;
(c)the assumptions that the experts were being asked to make in providing their opinion; and
(d)the facts relevant to each expert opinion.
On 28 February 2025, I made orders granting the parties leave to adduce expert evidence in terms of the questions set out in a minute of proposed expert evidence (the Expert Evidence Minute). The orders included a timetable for the exchange of expert evidence that required the plaintiff file any expert evidence by 19 May 2025.
On 11 April 2025, over the defendants' opposition, I extended the time for the plaintiff to file its expert evidence to 30 June 2025.
On 16 July 2025, again over the defendants' opposition, I further extended time for the plaintiff to file its expert evidence to 8 August 2025. During that hearing, there was discussion about whether the trial dates could be preserved given the plaintiff's failure to adhere to the timetable for the service of expert evidence. At one point during the hearing, the plaintiff's senior counsel, Mr Garas, said:
And so if your Honour [sic] not minded to simply impose a short deadline for the plaintiffs to put on whatever expert evidence they have and then allow them, obviously, the opportunity to address deficiencies in a transparent way, then the realistic option is vacation of the trial dates. Our friends say nothing about it, but that's in reality where the matter is potentially heading.[1]
[1] ts 629.
Later during that hearing I said:
My current thinking in relation to the expert evidence is that I am disinclined to vacate the trial dates today. I think that there is still the possibility that the matter can be righted and it is possible for there to be a trial, but I acknowledge that increasingly this is looking difficult.[2]
[2] ts 636.
I also said:
I don't think if it was necessary to adjourn the trial we are talking months or years or anything like that, but that said, this has been set down for trial in October with the consent of the parties, and in my view we should do everything that we can to maintain those trial dates. That's an appropriate use of court resources, and we should endeavour to do that…[3]
[3] ts 636.
On 12 August 2025, I again extended the time for the plaintiff to file the remaining part of its expert evidence to 29 August 2025. At a hearing that took place the day before, senior counsel who appeared for the plaintiff observed that if the defendants could not be ready for trial on the existing timetable, an adjournment of the trial could not be opposed.[4]
[4] ts 670.
The issues raised by the disputed amendments
The Latest Defence amends the defence to plead a positive case in relation to the plaintiff's claim for loss and damage. Immediately prior to the Latest Defence, the defence pleaded a bare denial to that claim. At an earlier stage of these proceedings, however, the defence contained a positive defence on damages. The pleading was amended to remove that positive defence and plead a bare denial on 14 February 2022, shortly after Smith J made orders for the separate trial of the question of the defendants' liability.
The statement of claim was last amended on 29 November 2021. In paragraph 10.6 of his affidavit, Mr Ebbs deposes to the fact that the plaintiff might need to amend the statement of claim in light of the expert evidence. The plaintiff amended its reply on 10 September 2025.
As I have mentioned, the Latest Defence was filed on 5 September 2025.
There are five paragraphs of the Latest Defence that are the subject of dispute. I will explain the issues raised by each in turn.
Paragraph 34A(b)
The first paragraph is paragraph 34A(b). That paragraph pleads that at all material times prior to the termination of the joint venture agreement on 12 February 2020, the plaintiff and the defendants were not capable of securing the necessary finance (whether debt or equity or both) required to fund the development of an operating mine on the tenement.
The plaintiff contends that this paragraph raises a new issue: whether the plaintiff and the defendants together in fact had or were in fact 'capable of securing the necessary finance required to fund the development of an operating mine on the tenement'. The plaintiff submits that no discovery has been given by the defendants with respect to that issue, in particular as to their financial position 'at all material times prior to … 12 February 2020'.[5]
[5] Plaintiff’s outline of submissions dated 9 September 2025 (Plaintiff’s submissions), par 8.
The defendants dispute that the paragraph raises a new issue. They submitted that the paragraph pleads an issue on which expert evidence is to be received in answer to question [8.2] of the agreed questions.[6]
[6] Defendants’ submissions in opposition to the Plaintiff’s disallowance/strike out Application (Defendants’ submissions), par 20.
The full text of questions [7] and [8] are set out in the Schedule these reasons.
Question [8.2] is:
Based on the answers to question [7] above:
…
8.2given all relevant prevailing market conditions and circumstances, would parties in the position of [the first defendant and the plaintiff] have raised the funding (whether debt or equity or both) necessary, and at the times necessary, to proceed with the project?
(emphasis added)
The plaintiff maintained that paragraph 34A(b) raised a new and different issue to that raised by question [8.2]. The plaintiff argued that the paragraph and the question were addressed to different matters.
The plaintiff submitted that question 8.2 is addressed to eliciting opinion evidence from the experts about the fundraising capacity of a hypothetical person in the position of the plaintiff and the defendants. It contended that this was evident from the use of the words 'in the position of'. The plaintiff argued that the position of the plaintiff and the defendants, as a matter of fact, was not a matter for expert evidence.[7]
[7] ts 755.
The plaintiff contended that, by contrast, paragraph 34A(b) made an allegation of fact about the capacity of the plaintiff and the defendants to secure debt and equity finance. The plaintiff submitted that given the matter now raised by the paragraph, it might wish to lead lay evidence about the plaintiff's capacity to raise equity finance.[8]
[8] ts 755 - ts 756.
The defendants submitted that their financial position at all material times prior to 12 February 2020 (and at all material times prior to the takeover by Catalyst Metals Limited) has been publicly available. They argued that despite agreeing to the question in February 2025, the plaintiff has not previously sought discovery from the defendants on the topic. [9]
[9] Defendant’s submissions, par 21.
The plaintiff submitted that they had not sought discovery previously because they had not understood the matter of fact now alleged was being raised.[10]
Paragraph 34A(d)
[10] ts 756 - ts 757.
The second disputed paragraph is paragraph 34A(d). That paragraph pleads that at all material times prior to the termination of the joint venture agreement on 12 February 2020, the plaintiff and the defendants would not have been able to progress the project to the point of development and production through the steps to development that would have been necessary and the likelihood that the parties would reach 'contractual impasses' under the JVA due to the absence of any mechanism to determine disputes and make binding determinations.
Particulars were provided to the paragraph. These stated that the steps to development that would have been necessary to progress the project to the point of development and production and related costs and funding will be the subject of evidence at trial and referred to the Expert Evidence Minute and the proposed evidence of James John Champion de Crespigny the subject of an outline dated 20 August 2025.
The defendants submitted that the paragraph does not raise a new issue and that it is premised on the expert evidence to be received in answer to questions [7] and [8] of the agreed questions. They argued that that evidence will necessarily discuss the steps necessary to development and production, including infrastructure requirements and related costs and funding. It is contended that this will also be addressed by factual evidence from Mr Champion de Crespigny.[11]
[11] Defendant’s submissions, par 23.
As I have mentioned, questions [7] and [8] are set out in the schedule to these reasons. Broadly, they address the steps necessary to develop the resources on the tenement, how long this would take, how much this would cost and whether the parties would be in a position to raise the necessary funds.
The plaintiff submitted that paragraph 34A(d) raised the notion of 'contractual impasses' for the first time. The plaintiff also argued that the particulars were inadequate because they failed to identify what part of Mr Champion de Crespigny's evidence was relied upon and particularised the case by reference to expert evidence which would not be served until 26 September 2025, shortly before the trial was due to start.[12]
Paragraph 34A(e)
[12] ts 759 - ts 763.
The third disputed paragraph is paragraph 34A(e). That paragraph pleads that at all material times prior to the termination of the joint venture agreement on 12 February 2020, the plaintiff and defendants did not have available to them, and could not economically have made available to them, all necessary infrastructure capable of supporting and operating a mine on the tenement being an airstrip, haul truck transport roads to any processing plants and/or public roads, an accommodation camp, processing plant, maintenance workshops, electricity generation infrastructure (i.e. power plants) and all other infrastructure, and related costs and funding, that will be the subject of expert evidence in response to paragraphs [7] and [8] of the Expert Evidence Minute.
Like with paragraph 34A(d), the plaintiff complained that this meant that the manner in which the case was pleaded meant that they would not know the case put against them until 26 September 2025.[13]
Paragraph 34B(e)
[13] ts 764.
The fourth disputed paragraph is paragraph 34B(e). That paragraph pleads that further or alternatively to paragraph 34A, there was no real prospect of proceeding to development and production due to physical, commercial and economic barriers, by reason of the matters referred to in paragraphs 34A above as well as the likely inability to enter into toll treatment agreement, the backfilling of K1 and all necessary infrastructure, and related costs and funding, that will be the subject of expert evidence in response to the Expert Minute paragraphs [7], [8] and [9].
The following particulars are given:
The Kl deposit is sited under a historical pit with backfilled tailings material from the historical Marymia processing plant, comprising approximately 1,000,000 m3 of tailings across Kl, KISE and minor laterite pits. The KISE pit is completely backfilled and the Kl pit is backfilled to a depth of approximately 20 metres above the final pit floor.
The plaintiff raised a similar objection to that raised in relation to paragraphs 34A(d) and 34A(e), that the manner in which the case was pleaded meant that they would not know the case put against it until 26 September 2025.[14] The plaintiff also complained that the issue of backfilling was being raised for the first time and they had previously not understood that they would need to deal with it.[15]
Paragraph 35(b)(i)
[14] ts 764.
[15] ts 764 - ts 765.
The fifth disputed paragraph is paragraph 35(b)(i). That paragraph pleads that the value of the alleged lost opportunity is negligible and/or speculative and that the plaintiff would not have contributed to expenditure, at all or materially, to earn any further interest (having regard to the realistic costs, absence of economic prospects and the dilution mechanism in the JVA).
The plaintiff contended that whether or not it would have contributed to expenditure 'at all or materially' to earn any further interest by reason of the matters set out in the words objected to raises a new allegation and it will require further evidence to respond.[16]
[16] Plaintiff’s submissions, par 12.
The defendants submitted that in the context of the plaintiff alleging a lost opportunity to earn in, and the experts being asked (by agreement) to opine on development and production, and related costs and funding, the court will necessarily need to assess the probability that the plaintiff would have contributed expenditure to earn in, and to what extent (if any).[17]
[17] Defendant’s submissions, par 29.
The defendants argued that it is a matter within the plaintiff's knowledge as to whether it might have been willing and able to do so, having regard to the experts' views about the actual expenditure that would likely have been needed.[18]
[18] Defendant’s submissions, par 30.
While the plaintiff accepted that whether it might have been willing and able to do so was a matter within the plaintiff's knowledge, it argued that the paragraph raised an issue that it thought had been resolved by the Liability Decision.[19] The plaintiff referred to the following passage of the Liability Decision:
[19] ts 758.
495 In par 34 of the Statement of Claim, Zuleika pleads that it was ready, willing and able to perform its obligations pursuant to the terms of the BTS Agreement for the benefit of the Joint Venture. Although the plea in par 34 is relevant to its claim for loss and damage, and irrelevant to liability, the plea in this paragraph does not form part of any Deferred Issue pursuant to the orders made by the court on 11 February 2022. 496 The defendants appear to question whether Zuleika would have had available to it sufficient funds in order for it to meet its Expenditure tranches. However, the issue of whether or not Zuleika was able to fund Expenditure is irrelevant in this trial as to liability. What is relevant is that Zuleika was never provided an opportunity to contribute funds to enable it to earn up to a 50% Joint Venture Interest. 497 In any event, Zuleika led uncontradicted evidence that:
(a) immediately following the Commencement Date, it had more than $3 million cash in the bank; and
(b) it held cash in the bank throughout the extended Earn-in Period between $3,283,652 as at the 31 March 2017 to $1,489,763 as at 30 September 2019,376 to enable it to contribute to Expenditure.377
498 In addition, Mr Carson gave uncontested evidence that Zuleika could have raised any additional capital that it required for Expenditure in order to earn-in a full 50% Joint Venture interest by equity raising.378
499 In light of this evidence, I am satisfied that Zuleika has proved that at all material times it was ready, willing and able to perform its obligations pursuant to the terms of the BTS Agreement.
(footnotes omitted)
The plaintiff submitted that because of these findings, it had not perceived that it was necessary to adduce any evidence to address these issues when it had filed its evidence.[20]
[20] ts 759.
Why the defendants should have leave to amend the defence
I am satisfied that the defendants should have leave to amend their defence in terms of the Latest Defence. This is for three reasons.
First, until recently the defence contained a bare denial. Given the matters canvassed in the Expert Evidence Minute, it was evident that the defendants' defence extended beyond simply putting the plaintiff to proof. An amendment has been 'on the cards' for some time.
Secondly, as the defendants argued, unless they are allowed to amend the defence, they would be precluded from leading expert evidence, despite the fact that the questions in the Expert Evidence Minute had been agreed.[21]
[21] ts 767 - ts 768.
Thirdly, I am satisfied that the amendments broadly raise issues canvassed in the Expert Evidence Minute. The plaintiff has been on notice that expert evidence would be led about the matters addressed in that Expert Evidence Minute and have briefed their experts to address those issues.
I do consider that, however, there is some force to the plaintiff's complaint that the defence fails to give adequate notice of the case that the plaintiff must meet, insofar as it seeks to particularise the defendants' case by reference to expert evidence that has not yet been served. Disclosing that evidence will be given addressed to a particular topic discloses how the matter is to be proved but does not disclose the nature of the case that is being put.
I therefore did not give leave to amend the defence in terms of those parts of the Latest Defence that referred to the expert evidence that would be given. I indicated that it would be necessary for the defendants to amend the defence once expert evidence had been served to give adequate notice of the case that the plaintiff must meet.
Why the trial will be re-listed
There have been discussions for some time at case management conferences about whether it is realistic for this matter to proceed to trial on the dates allocated. I have previously indicated that efforts should be made to retain the existing trial dates. I am concerned, however, that matters have now reached the point where proceeding to trial on the dates allocated is no longer in the interests of justice.
I accept the plaintiff's submissions that the amendments have introduced new matters for the first time. It is true that the Expert Evidence Minute revealed the questions that would be asked of experts. Knowledge of the questions being asked is different to knowledge of the answers that the experts would give to those questions. As matters presently stand, the plaintiff would not have proper notice of the case that it must meet at trial until shortly before the trial will commence.
Further, I accept that the amendments raise matters about which the plaintiff may now wish to lead additional lay evidence and about which the plaintiff might wish to obtain further discovery and issue subpoenas. The result of this evidence preparation and gathering process might need to be provided to the experts for them to consider. Time might also need to be allowed for the defendants' experts to respond to any issues raised by the plaintiff. In my view, there is now insufficient time for these matters to be properly addressed before the trial commences.
While I consider that it would be unfair to preclude the defendants from amending their defence, I consider the plaintiff should be given a fair opportunity to prepare its case in response to the issues raised by the amendments. This includes the need to obtain any necessary discovery and issue subpoenas.
For this reason, I do not consider the trial should proceed on the dates presently allocated. The possibility of the trial proceeding early next year has been discussed previously. In my view, re-listing the trial early next year should allow sufficient time to permit the case to be properly prepared for trial without unduly delaying the final resolution of this matter.
If the trial is not to proceed in October, the need for some of the discovery orders might be doubted. Given that the trial has now been vacated, it may be possible that some of the outstanding discovery disputes will fall away. If not, I will determine them on another occasion.
SCHEDULE
7.In your opinion, following entry into the JVA in May 2017:
7.1what activities were required to bring any one or more of the deposits on the Tenement (and the K2 Area, if applicable) to the point of being an operational mine?
7.2for each activity given in answer to question 7.1 above, how long would it have taken to complete the activity?
7.3based on your answers to questions 7.1 and 7.2 above:
7.3.1when was the earliest time that any of the deposits on the Tenement (and the K2 Area, if applicable) could have been brought into production as an operating mine?
7.3.1what is the estimated cost of each activity?
7.3.2at what likely cost, overall, could the deposits on the Tenement (and the K2 Area, if applicable) have been brought into production as an operating mine?
7.4what activities would have had to occur during the production and operational phase for the Tenement (and the K2 Area, if applicable)?
7.5in relation to the treatment of ore by the JVA:
7.5.1were any of the following options practical and economically viable, namely:
(a)assuming Billabong Gold Pty Ltd (Billabong) was open to entering into a new ore treatment agreement with Vango, negotiating and entering into a new ore treatment agreement with Billabong and using its processing plant;
(b)assuming Billabong was not open to entering into a new ore treatment agreement:
(i) acquiring and using a substitute second-hand ore processing plant;
(ii) identifying and using an alternative third-party small- scale processing plant; or
(iii) building and using a small-scale processing plant;
7.5.2which of the options in 7.5.1(a), (b)(i), (b)(ii) and (b)(iii) above (Options) would likely have been recommended by a reasonable and competent advisor to the JVA (in mining engineering and / or geology), and why, including practical and economic considerations?
7.6for each of the Options, how long would it have taken to complete each activity given in answer to question 7.4 above?
7.7based on your answers to questions 7.1 to 7.6 above, and taking into account the likely operational and production costs (also the subject of question 7.10 below), what (if any) amount of gold (in ounces) would have been produced during the production and operational phase for:
7.7.1the Tenement; and
7.7.2(if applicable) each contiguous tenement comprising the K2 Area.
In answering question 7.7, please provide the estimated periodic production volume (in ounces) (if any) in the form of an Excel spreadsheet, including the gold price, extraction cost for each of the Options and cut-off grade, and identify which of the following gold production milestones would have been achieved (if any) and the earliest time each of them would have been achieved:
7.7.345,000 ounces;
7.7.4100,000 ounces;
7.7.5200,000 ounces;
7.7.6300,000 ounces.
7.8based on your answers to questions 7.1 to 7.6 above, and taking into account the likely operational and production costs (also the subject of question 7.10 below), as well as all relevant prevailing market conditions and circumstances and the production of gold on an economic basis, what (if any) amount of gold (in ounces) would have been produced during the production and operational phase for:
7.8.1the Tenement; and
7.8.2(if applicable) each contiguous tenement comprising the K2 Area.
In answering question 7.8, please provide the estimated periodic production volume (in ounces) (if any) in the form of an Excel spreadsheet, including the gold price, extraction cost for each of the Options and cut-off grade, and identify which of the following gold production milestones would have been achieved (if any) and the earliest time each of them would have been achieved:
7.8.345,000 ounces;
7.8.4100,000 ounces;
7.8.5200,000 ounces;
7.8.6300,000 ounces.
7.9based on the answers to questions 7.4 to 7.7 above, for each of the Options:
7.9.1what is the estimated cost of each activity?
7.9.2what would have been the overall cost likely incurred during the production and operational phase for the Tenement (and the K2 Area, if applicable)?
7.10based on the answers to questions 7.4 to 7.6 and 7.8 above, for each of the Options:
7.10.1what is the estimated cost of each activity?
7.10.2what would have been the overall cost likely incurred during the production and operational phase for the Tenement (and the K2 Area, if applicable)?
7.11what activities would have had to occur for mine closure for the Tenement (and the K2 Area, if applicable)?
7.12for each activity given in answer to question 7.11 above, how long would it have taken to complete the activity?
7.13based on the answers to questions 7.11 and 7.12 above:
7.13.1what is the estimated cost of each activity?
7.13.2what would have been the cost likely incurred, overall, for mine closure for the Tenement (and the K2 Area, if applicable)?
8.Based on the answers to question 7 above:
8.1what would have been the JVA's likely estimated return on investment?
8.2given all relevant prevailing market conditions and circumstances, would parties in the position of Vango and Zuleika have raised the funding (whether debt or equity or both) necessary, and at the times necessary, to proceed with the project?
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AB
Associate to the Hon Justice Palmer
23 SEPTEMBER 2025
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