MINERALOGY PTY LTD -v- CITIC LIMITED [2024] WASCA 168 (22 January 2025)

In the 2023 MCPs, the CITIC parties take a phased approach to obtaining necessary approvals under the State Agreement for Project continuation. The areas over which the activities the subject of the 2023 MCPs are to be conducted are a subset of the areas the subject of the 2017 MCPs, and are confined to areas over which Mineralogy has already provided to Sino Iron and Korean Steel, by agreement, rights of access and use ... Approval of the 2023 MCPs will support the continued operation of the Project for an interim period, but will not be sufficient for life-of-mine operations for a combined two billion tonne extraction right (par 2.3).

The 2023 MCPs are not intended to be an alternative to the 2017 MCPs. The 2023 MCPs are proposed as an interim solution to the urgent need to extend the operating areas of the Project, by obtaining the approval of the State Agreement Minister of project proposals in respect of those parts of the 2017 MCPs that do not require Mineralogy to make available additional land (par 5.1).

1. In making the request that Mineralogy submit the 2023 MCPs to the minister for approval, Sino Iron and Korean Steel stated that they relied on their rights under: cl 15.1(c) of the Mining Right and Site Lease Agreements (MRSLAs);[4] cl 4.1(b) of the Fortescue Coordination Deed;[5] Mineralogy's 'reasonable assistance' obligation under cl 7.3(i) of the Sino Iron Takeover Agreement and cl 7.3(e) of the Korean Steel Takeover Agreement;[6] and Mineralogy's implied obligations of cooperation and good faith performance under the project agreements (par 6.2). (As the express terms of the various instruments are set out in Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 15] we will not reproduce them in these reasons.)
2. Mineralogy did not agree to submit the 2023 MCPs to the minister for approval. Accordingly, on 27 November 2023 the CITIC parties commenced the primary proceedings.
3. It can be seen from this brief summary of the events leading to the commencement of the primary proceedings that the proceedings are an attempt to obtain Mineralogy's participation in the submission of alternate MCPs (ie the 2023 MCPs) in circumstances where the CITIC parties were unsuccessful in their earlier litigation (ie the 2017 MCP proceedings) seeking to compel the submission of the 2017 MCPs.

1. Something needs to be said about the nature of the primary proceedings. This may be dealt with relatively shortly as there are already three published decisions that have described the primary proceedings: Sino Iron Pty Ltd v Mineralogy Pty Ltd [30] - [35]; Palmer v CITIC Ltd [No 12];[7] and Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2].[8] Given those detailed descriptions, which we incorporate but will not repeat, we will concentrate on the parties' pleaded cases with an emphasis on those parts of the pleaded cases that bear on the contested discovery categories. As a general observation, however, it may be said that, insofar as the 2023 MCPs are a subset of the 2017 MCPs, the primary proceedings involve similar factual and legal issues to some of the factual and legal issues litigated in the 2017 MCP proceedings.
2. The CITIC parties nevertheless contend that they are prosecuting the primary proceedings conformably with the constructional determinations that were arrived at by Kenneth Martin J in the 2017 MCP proceedings.
3. The CITIC parties' statement of claim is indorsed to the writ of summons. After describing the parties (pars 1 - 6), the CITIC parties turn to the Sino Iron Project referring to the project agreements, the proposals under the State Agreement, the alleged rights of Sino Iron and Korean Steel and the core attributes of the project (pars 7 - 24). The CITIC parties plead the relevant express and implied terms of the project agreements on which they rely (pars 28 - 38). Then, critically, the CITIC parties address an alleged need to expand or vary the Sino Iron Project. At par 40 the CITIC parties allege that the mine pit, tailings storage facility and waste rock landforms are constrained and, being constrained, are not in a state as is required to implement the Sino Iron Project (see also pars 44 - 59). It is said, among other things, that if the project remains constrained in the current manner it will not be possible to ensure continuous operation of the project (par 41). Accordingly, Sino Iron and Korean Steel wish to expand and vary the activities carried on pursuant to the State Agreement in relation to the Sino Iron Project (par 42).
4. Details are then provided of the 2023 MCPs (pars 60 - 62). Among other things the CITIC parties allege that the 2023 MCPs do not propose the use of any areas over which Sino Iron and Korean Steel do not have an existing right of occupation, use or access (par 61(b)). The 2023 MCPs are said to include proposals for: (1) an extension of the mine pit; (2) an increase to tailings storage capacity; (3) an increase to waste storage capacity; and (4) relocation of an existing road (par 62).
5. The CITIC parties go on to plead that (par 64):

The 2023 MCPs, if submitted to and approved by the SA Minister, would:

(a) enable Sino Iron and Korean Steel to continue to exercise the Sino/Korean Project Rights; further or alternatively

(b) enable the continued operation of the Sino Iron Project for an interim period; further or alternatively

(c) avoid, or minimise the period of, suspension of the operation of the Sino Iron Project in that interim period.

1. There is a similar plea, at par 77(a) of the statement of claim, where it is claimed that the 2023 MCPs - if submitted to and approved by the minister - would enable continuous operation of the Sino Iron Project for an interim period. Particulars of that allegation have been provided by the CITIC parties:

The 2023 MCPs, if submitted and approved, would enable continuous operation of the Project for an interim period in the sense that they would not enable the full exercise by Sino Iron and Korean Steel of their combined rights to mine and process up to two billion tonnes of magnetite ore, and therefore they would not enable continuous operation for the full period that it would take to exercise those rights. That is because, being confined to areas over which Sino Iron and Korean Steel have existing rights of access and use, the 2023 MCPs do not provide sufficient capacity for storage of waste rock and tailings generated by the mining and processing of two billion tonnes of magnetite ore.

1. The CITIC parties say that Mineralogy has failed and refused, within a reasonable time, to consider or submit the 2023 MCPs (par 76; see also pars 66 - 75). This, as well as various other things, means that - according to the CITIC parties - Mineralogy 'has breached and is in continuing breach' of the various express and implied terms which were previously pleaded (pars 79, 83, 84, 88, 90, 91, 93, 94). (There is a differently formulated breach plea at par 87.)
2. By way of relief, among other things, the CITIC parties seek:
   1. Declarations that Mineralogy 'has breached and is in continuing breach' of the various pleaded obligations (prayer for relief par A).
   2. Orders for specific performance, alternatively injunctions, requiring Mineralogy to submit the 2023 MCPs to the minister for approval, or alternatively, to submit such part of the 2023 MCPs as the court thinks fit or subject to such modifications as the court sees fit to make (prayer for relief par B).
3. It is not necessary to traverse the whole of Mineralogy's amended defence dated 11 March 2024. Mineralogy pleads a defence based on allegations pursued in other proceedings (par 1). This was the subject of an unsuccessful strike-out application before Cobby J: Sino Iron Pty Ltd v Mineralogy Pty Ltd [36] - [80]. That aspect of the amended defence has no part to play in relation to the disputed discovery categories and may be put aside for the purpose of these reasons. More generally Mineralogy pleads its version of the background facts and the meaning of the relevant terms in the project agreements.
4. Importantly, Mineralogy denies the CITIC parties' allegation that the project is constrained (par 40) and goes on to plead in the same paragraph that:

(a) Sino Iron and Korean Steel have failed to develop the mine pit, tailings storage facility and waste rock landforms efficiently and in accordance with cl 16 of the MRSLAs ...

(b) if the mine pit, tailings storage facility and waste rock landforms are constrained in the manner alleged by [the CITIC parties], which is denied, it has been caused by Sino Iron and Korean Steel's breaches of cl 16 of the MRSLAs.

1. A number of matters are pleaded in support of the plea in par 40(a). Mineralogy says that, despite assertions that the continuation of the Sino Iron Project requires the grant of additional tenure areas, 'Sino Iron and Korean Steel have never communicated a position to Mineralogy expressing a willingness to negotiate for commercial terms, and have communicated a position that they are "not willing to pay further money" for the additional tenure areas sought by them' (par 40(a)(iii)). Mineralogy also pleads that Sino Iron and Korean Steel failed from 2012 to plan for the expansion of the mine pit and waste storage capacity to remain adequate for the purposes of the Sino Iron Project (par 40(a)(iv)). The latter plea is relied on by Mineralogy to justify two of the disputed discovery categories (categories EE and EF).
2. Mineralogy raises a number of matters about the suggested 'interim' nature of the 2023 MCPs (pars 61(gA), 64(b), 64(d)). It is convenient to address these pleas when referring to ground 5 (see [115] and [117] below). Otherwise Mineralogy denies the breach allegations saying, among other things, that:
   1. The CITIC parties have not provided sufficient commercial and technical information to enable Mineralogy to consider the 2023 MCPs (par 76(b)).
   2. Mineralogy was not and is not obliged to agree to the request to submit the 2023 MCPs because, among other things, the 2023 MCPs are unreasonable for the reasons pleaded in Mineralogy's amended defence (pars 76(a), 76(c) - (g)).
3. Accordingly, Mineralogy denies that the CITIC parties are entitled to the relief claimed (par 96).
4. The CITIC parties have filed an amended reply dated 2 August 2024. The CITIC parties join issue with Mineralogy's defence except so far as it contains admissions (par 1). Separately, as to Mineralogy's response to the constraint allegation, the CITIC parties say that the matters raised by Mineralogy are not relevant to the matters on which the CITIC parties sue and Mineralogy's allegations are liable to be struck out as disclosing no reasonable defence (par 8(a)). There has, however, been no application to strike-out the allegations.
5. Mention should also be made of two interlocutory decisions in relation to the primary proceedings.
6. First in time is Cobby J's decision in Sino Iron Pty Ltd v Mineralogy Pty Ltd as delivered on 3 July 2024. There Cobby J dismissed Mineralogy's application to stay the primary proceedings pending the Court of Appeal's determination of the CITIC parties' appeal against Kenneth Martin J's decision in the 2017 MCP proceedings. Cobby J also dismissed the CITIC parties' application to strike out portions of Mineralogy's defence.
7. For present purposes more significance attaches to observations Cobby J made in connection with an application by the CITIC parties for expedition. Cobby J accepted that 'there is a need to ensure that [the primary proceedings] are determined with reasonable urgency' [160] (see also [174]). In this respect, based on evidence adduced by the CITIC parties and his Honour's view as to the likelihood of the suspension of mining operations impacting on both the employees of the Sino Iron Project and the royalties payable to the State (see [94] ‑ [95], [161] - [166]), there was:

a real public interest in the ongoing disputes between these parties regarding the submission of new mine continuation plans to the minister being resolved as soon as possible [167].

1. The second decision was handed down by the primary judge, Lundberg J, on 10 September 2024. This decision was Palmer v CITIC Ltd [No 12] dealing with the sequencing of various proceedings involving Mineralogy and the CITIC parties, one of those proceedings being the primary proceedings. Lundberg J, like Cobby J, found that the primary proceedings were 'reasonably urgent' and that there was a 'real public interest' in the dispute regarding the submission of the 2023 MCPs being resolved as soon as possible [93] (see also [89], [150]). Lundberg J found that the primary proceedings required a 'swift' or 'relatively urgent' resolution [150]. Accordingly, Lundberg J determined to make orders actively case managing the primary proceedings to facilitate a trial commencing in April 2025 [193] ‑ [195], [203] - [205].
2. On 11 September 2024 the primary judge made orders to give effect to his conclusions in Palmer v CITIC Ltd [No 12]. The primary proceedings were set down for trial commencing on 28 April 2025 (par 5). The primary judge also made comprehensive pre-trial programming orders as to discovery (pars 9 - 11), lay evidence (pars 12 - 25), expert evidence (pars 26 - 41), trial documents (pars 42 ‑ 50) and written opening submissions (pars 54 - 57).
3. In terms of discovery, the 11 September 2024 orders contemplated:
   1. The parties conferring by 17 September 2024 with a view to agreeing discovery categories.
   2. A memorandum being filed by 18 September 2024 which recorded the agreed discovery categories and identified disputed discovery categories that required resolution by the court.
   3. An exchange of submissions, and the time for a hearing in the event of any dispute, to determine all disputed discovery issues.
   4. The parties giving discovery, on affidavit, by 1 November 2024 with inspection being given by 4 November 2024.
4. The tight timetable associated with discovery is explained by the limited time available more generally to accommodate a trial that commences on 28 April 2025. The CITIC parties were to file and serve their lay evidence by 18 November 2024; Mineralogy's lay evidence is due by 20 January 2025. The process for expert evidence commenced on 13 November 2024 with the CITIC parties' expert reports to be filed and served by 31 January 2025 and Mineralogy's expert reports to be filed and served by 10 March 2025. The parties are to exchange notices as to intended tender documents for trial by 24 March 2025.

1. The parties were unable to agree on the discovery categories. Accordingly, the primary judge heard the disputed discovery issues on 1 October 2024. His Honour reserved his decision until the following day. On 2 October 2024 the primary judge made dispositive orders with reasons to follow. The primary judge's written reasons for the discovery orders as made were delivered on 7 November 2024.
2. The disputed discovery issues all concerned the extent of the discovery categories applying to the discovery to be given by the CITIC parties. Neither party was entirely successful before the primary judge. The primary judge upheld some of the discovery categories sought by Mineralogy but rejected or limited other categories. There were also discovery categories sought by Mineralogy that the CITIC parties had agreed to provide.
3. The discovery categories as ordered in relation to the CITIC parties are extensive. They are set out in attachment 'A' to the primary judge's orders made 2 October 2024 (a copy of which is reproduced in the primary decision). We will not attempt to summarise the discovery categories to be provided by the CITIC parties pursuant to the orders made 2 October 2024. It should, however, be recognised that the application for leave to appeal fell to be considered in the context of the extensive discovery categories that were ordered to be given by the CITIC parties to the benefit of Mineralogy.
4. Mineralogy does not seek to disturb all of the primary judge's determinations rejecting or limiting a discovery category sought against the CITIC parties. It is not necessary to refer to the primary judge's reasons addressing discovery categories that were uncontroversial for the purpose of the appeal. Moreover, having regard to the way the appeal was presented, it is convenient to deal with the primary judge's reasons for rejecting or limiting specific discovery categories when addressing the applicable ground. There are, however, aspects of the primary judge's reasons that apply across the various discovery categories.
5. At the outset it should be noted that the primary judge explained that the orders he made were designed to give effect to a discovery regime necessary for 'fairly disposing of the proceedings' [5]. In so doing his Honour correctly stated the overriding consideration in determining the discovery categories that were to be ordered. More generally the applicable principles were not in dispute [8]. In that respect the primary judge referred to two influential authorities [9]: Roe v The State of Western Australia;[9] and Maek Pty Ltd v Ibrahim.[10]
6. His Honour also identified that:
   1. One factor the court must consider in the exercise of the discretion to order discovery is relevance to a matter in issue - in the context of the present dispute this being 'direct relevance' rather than mere adjectival or indirect relevance [10] (see also [11] - [12]).
   2. Additional matters also arose for consideration including: (a) the goal and objects enshrined in O 1 r 4A and r 4B of the Rules of the Supreme Court 1971 (WA); and (b) a proportionality assessment whereby the court weighs, among other things, the likely relevance of the documents and their potential forensic importance to the resolution of the issues in the litigation in the context of the other considerations mentioned in O 1 r 4A and r 4B [13].
7. There was no suggestion on appeal that the primary judge misdirected himself as to the applicable principles in ordering discovery. In the circumstances it is enough to state that Quinlan CJ distilled the contemporary principles applying to discovery in civil proceedings in the General Division of the Supreme Court in Maek Pty Ltd v Ibrahim [25] - [26]. The primary judge plainly directed himself conformably with those principles and was correct to do so. While Mineralogy contended that the primary judge had misapplied the applicable principles, it was not said, in seeking leave to appeal, that there was any error of principle on the part of the primary judge.
8. The primary judge referred to the parties' conferral process [14] - [26] and the disputed discovery categories [27] - [35]. Aspects of what the primary judge said as to the conferral process are contentious and must be considered in relation to ground 1. In relation to the discovery categories his Honour noted, in a passage relied on by senior counsel for Mineralogy before this court, that Mineralogy appeared to have 'limited visibility' into the inner workings of the Sino Iron Project [33]. We, like the primary judge, accept that this informational asymmetry as between Mineralogy and the CITIC parties emphasises the significance of appropriate discovery for the fair and just determination of the primary proceedings. The CITIC parties did not contend to the contrary.
9. Before turning to consider the disputed discovery categories the primary judge identified three 'overarching matters'. These were matters that, in the primary judge's view, were to be given 'considerable weight' - they were relevant to proportionality and delay [42] - [43]. The primary judge regarded the overarching matters as 'pervasive considerations' which his Honour took into account across the disputed discovery categories in considering whether to reject or limit the categories [71].
10. The three overarching matters identified by the primary judge were:
    1. The provision of discovery in the 2017 MCP proceedings - the primary judge considered that it was a 'striking feature' of the primary proceedings that it raised for determination similar issues which had been the subject of the 2017 MCP proceedings. Extensive discovery was given in the 2017 MCP proceedings. These included documents up to 30 June 2021. The documents so discovered in the 2017 MCP proceedings had already been provided, by way of discovery, in the primary proceedings. Accordingly, a large volume of discovery had already been provided by the CITIC parties to Mineralogy; it was not a case in which the parties were starting the discovery process from scratch. The disputed discovery categories should not be analysed in a vacuum but rather should be considered having regard to the overall extent of the CITIC parties' discovery obligation [44] - [52].
    2. The scope of the 2023 MCP discovery - in this respect the primary judge stated that:

[T]he scope of the discovery needs to be appropriately tailored to ensure the parties have a proper opportunity to present their cases at trial, but also to ensure the trial dates can be achieved and unnecessary delays are avoided [53].

The primary judge noted that the pre-trial directions contemplated discovery being completed by 1 November 2024. It was, in the circumstances, necessary to 'closely' assess the potential scale of the discovery process and its effect on the parties' ability to achieve the court-ordered timetable. The primary judge considered it appropriate to give weight to various matters impacting on the discovery process arising from the breadth of the disputed categories including the time period over which the disputed categories stretched and the scale of the Sino Iron Project [53] - [65].

1. The impact on the listed trial of the 2023 MCP proceedings - the primary judge reiterated his and Cobby J's previous findings that the proceedings were reasonably urgent and that there was a real public interest in the parties' dispute about the submission of new MCPs being resolved as soon as possible. His Honour was mindful of the goal expressed in O 1 r 4A and that much was to be done by the parties and their legal teams in the seven months remaining until the commencement of the trial. The primary judge was also conscious that potential delays in the discovery process were likely to have acute consequences to the efficient running of the litigation. This, in his Honour's view, was to be given weight in assessing the scope of the discovery categories [66] - [71].
2. It was not suggested, on appeal, that the primary judge's identification of and giving weight to these three 'overarching matters' revealed any appellable error.
3. The primary judge then turned to the disputed discovery categories. As mentioned, the primary judge allowed some of the disputed categories, rejected others, and in some cases limited the scope of the discovery category sought by Mineralogy. It is convenient to refer to the primary judge's reasoning in this regard on a ground‑by‑ground basis later in the exposition of these reasons.
4. The primary judge also identified, uncontroversially for the purposes of the appeal, his understanding of the principal issues for determination at the trial. These focused on events preceding the commencement of the primary proceedings and included [76]:
   1. The constraints, if any, on the Sino Iron Project at the time the CITIC parties provided the 2023 MCPs to Mineralogy.
   2. Whether the proposals in the 2023 MCPs were justified.
   3. The time frame within which the 2023 MCPs were to be considered by Mineralogy.
   4. Whether Mineralogy was obliged to submit the 2023 MCPs.

1. Mineralogy applied for leave to appeal on 15 October 2024. At that time the primary judge was yet to publish the primary decision providing his Honour's reasons for the 2 October 2024 discovery orders. The parties agreed that Mineralogy could defer its appellant's case until 7 days after publication of the primary decision. Mineralogy's appellant's case was eventually filed on 14 November 2024. Thereafter the court made orders for the urgent hearing of the application for leave to appeal.
2. Mineralogy's orders wanted purport to seek variation of the 2 October 2024 discovery orders in two main respects:
   1. First, Mineralogy seeks enlargement of the scope of nine discovery categories (categories AB, C, D, E, EA, EH, EM, F and G). Those categories are, in effect, restricted by a temporal limitation to documents bearing a date or being brought into existence on or before 27 November 2023 (that being the day the primary proceedings were commenced). Mineralogy seeks that there be no such end-date temporal limitation. In the alternative, Mineralogy seeks that the end-date be extended to the date of the order - this would see an end-date of 2 October 2024 rather than 27 November 2023.
   2. Second, Mineralogy seeks that this court reverse the primary judge's rejection of five categories of documents (categories EE, EF, EJ, EK and EL).
3. The annexure to these reasons reproduces all but one of Mineralogy's grounds of appeal. The grounds are listed with the categories to which they refer. In the annexure, ground 2 is only associated with categories EA and EH. The orders wanted, and Mineralogy's written submissions, suggest that ground 2 is also raised in relation to categories AB, C, D, E, EM, F and G. The annexure does not reproduce those categories. They can be identified from the attachment to the primary decision. These seven categories use the defined term 'Post Production Period'. The primary judge was persuaded to use a 27 November 2023 end-date cut-off for that definition for the same reasons that his Honour applied a temporal limitation to categories EA and EH: [75] - [80], [82](a), [86], [108].
4. In its terms, ground 2 only complains that the alleged error had the consequence of confining categories EA and EH (see par (c) of ground 2). There is no challenge to the limiting effect on the other seven categories. We acknowledge that such a purported challenge is evident in Mineralogy's written submissions, orders wanted and the schedule filed pursuant to par 5 of the court's orders made 25 November 2024. But, as was pointed out to senior counsel for Mineralogy during the appeal hearing, this court determines appeals by reference to grounds of appeal. There was no application to amend the scope of ground 2 to encompass the other seven categories. Had leave to appeal been granted, and had ground 2 succeeded, at best it could have resulted in an extension of the temporal limitation applying to categories EA and EH.
5. There is a further deficiency with the grounds of appeal.
6. The power to order discovery is discretionary. A litigant seeking to establish appellable error must observe the principles established in House v The King.[11] That necessitates that the grounds of appeal clearly identify - with an appropriate degree of specificity - the precise nature of the alleged discretionary error. It is not enough to state that the primary judge erred in fact or in law.[12] The specification of alleged error in a discretionary decision should have proper regard to the principles that apply in seeking to overturn such a decision. The requirement to do so is not onerous. The Court of Appeal in New South Wales has provided a simple illustration of how such grounds may be formulated: Durham v Durham.[13] However, while not onerous, the requirement is critical. Litigants seeking leave to appeal from discretionary decisions who do not observe the basal requirement to prepare proper grounds of appeal may be refused leave on that basis alone.
7. In the present case only ground 1 satisfactorily identified the kind of discretionary error that was alleged to have arisen.
8. Senior counsel for Mineralogy sought to rectify the deficiency in the other grounds of appeal in his oral submissions. It was said, expressly as to grounds 2 - 4 and impliedly in relation to ground 5, that the primary judge misapprehended what was a live issue on the pleadings. In that respect Mineralogy contended that his Honour failed to take into account a relevant consideration. Mineralogy sought to make a virtue in so characterising its case on appeal by saying that this court was as well placed as the primary judge to determine the scope of the pleaded issues.[14]
9. Accordingly, as senior counsel for Mineralogy advanced Mineralogy's argument on the appeal, the appeal mainly concerned whether the primary judge was in error in deciding that certain discovery categories were not directly relevant to the issues in dispute.[15]
10. In oral submissions Mineralogy dealt first with its grounds of appeal and then turned to the question of leave to appeal. Senior counsel for Mineralogy sought to justify this approach by submitting that the most important consideration for the question of leave was the court's assessment of the strength of the grounds of appeal. It was said that, if the court was satisfied that the primary judge fell into error, then the court should grant leave to appeal to correct the error. Conversely, if the court was against Mineralogy on the pleading points, then that would be the end of the matter. We do not accept that the question of leave to appeal can be passed over in so summary a fashion. To explain why this is so we turn to the principles applying to leave to appeal.

Leave to appeal - applicable principles for leave to appeal from an interlocutory order on a matter of practice and procedure

1. Mineralogy's approach to leave to appeal treats the requirement of leave as a mere procedural inconvenience that stands or falls with the merits of the proposed appeal. It is an approach which does not give effect to the statutory purpose that underpins the requirement of leave. The requirement of leave to appeal acts as a filter or control device restricting a litigant's ability to pursue an appeal. Where an appeal is subject to leave to appeal there is no statutory right to appeal. Instead the ability to appeal is subject to the grant of leave. The discretionary considerations which apply to whether or not there should be leave to appeal are informed by the particular statutory context. In the present case the restriction applies because the proposed appeal is from an interlocutory order: Supreme Court Act 1935 (WA) s 60(1)(f).
2. The statutory restriction on appeals from an interlocutory order or judgment recognises at least three matters which individually and collectively have the consequence that the due administration of justice is not served by appellate review of interlocutory orders or judgments as a matter of course.
3. First, interlocutory orders and judgments do not commonly tend to cause substantial injustice or adversely affect a litigant's legal rights, interests or liabilities. In any case, an appellate court may, on an appeal from a final order or judgment, correct any interlocutory order or judgment which affected the final result. Second, uncontrolled appellate review from an interlocutory order or judgment has the potential to fragment or fracture the timely and efficient determination of disputes to the disadvantage of the parties. Third, the Court of Appeal has limited judicial and administrative resources which must be maximised and used efficiently. The requirement of leave to appeal is a preliminary procedure enabling the court to control in some measure the volume of appellate work requiring its attention.
4. These three matters inform the principles applying to leave to appeal from an interlocutory order or an interlocutory judgment. Those principles are well established. Both parties referred to this court's decision in NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd.[16] There, Beech and Vaughan JJA stated:

Where leave to appeal is necessary, leave may be granted whenever the interests of justice require it. The principles on which this court considers whether to grant leave to appeal are well-established:

1. The requirement for leave is no mere technicality or procedural nicety; it serves an important function in the administration of justice by discouraging unnecessary interlocutory appeals.
2. Appellate courts exercise particular caution (sometime referred to as 'special restraint') in reviewing interlocutory decisions on matters of practice and procedure.
3. There is a particular need to refrain from interfering with interlocutory procedural decisions made by judges managing cases in the Commercial and Managed Cases List.
4. Ordinarily, while not being rigid or exhaustive criteria, the considerations to be taken into account by this court upon an exercise of the discretion to grant or refuse leave to appeal are:

(a) first, whether the decision was wrong or, at the least, attended with sufficient doubt to warrant its being reconsidered; and

(b) second, whether substantial injustice would result if the decision is left unreversed, supposing the decision to be wrong. However, the requirement to show substantial injustice is no more than a guideline for the exercise of what is a broad discretion.

The two considerations bear on each other. The degree of doubt that is sufficient in one case may be different from that required in another. It will be affected by the extent of the risk of substantial injustice if leave were refused, supposing the decision to be wrong.

1. The requirement of 'substantial injustice' is not satisfied by interference with procedural rights or procedural disadvantage; it looks to whether substantive rights are adversely affected.
2. Where substantive rights are not effectively determined, an appellate court should be reluctant to interfere.

These considerations provide general guidance only. Thus, while the question of leave is normally considered within the rubric of these organising principles, there will be cases raising special considerations. The touchstone remains the interests of justice. The nature and risk of the injustice said to result from the order appealed from will generally be a material consideration. There is a far greater risk of injustice where an interlocutory decision determines a substantive right. In such a case leave will be granted more readily. By contrast, as is mentioned in the authorities establishing the principles set out [in the previous paragraph], a 'tight rein' must be kept on appeals involving interlocutory decisions on matters of practice and procedure [117] - [118]. (citations omitted) (original emphasis)

1. Whether leave to appeal is in the interests of justice will also be informed by the goal and objects in O 1 r 4A and r 4B of the Rules of the Supreme Court: NRW Contracting Pty Ltd [119].
2. The observations in NRW Contracting Pty Ltd are general in nature but advert to the particular considerations that arise on interlocutory appeals against the exercise of discretion on a point of practice and procedure. Appellate courts exercise particular caution in such situations. The reason for that caution is well understood. As was said by Jordan CJ in In re the Will of FB Gilbert (Dec'd):

[T]here is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.[17]

1. That passage was quoted with approval by the plurality (Gibbs CJ, Aickin, Wilson and Brennan JJ) in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc.[18]
2. Leave to appeal from a discretionary decision involving a matter of practice and procedure will not ordinarily be granted unless the application raises an issue of principle, a question of general public importance or the applicant for leave can demonstrate that significant injustice is likely to result if leave is not granted: State of New South Wales v Meredith.[19] See also Mohareb v Local Court of New South Wales where there was reference to matters that involve a 'reasonably clear injustice'.[20] The concept of a 'reasonably clear injustice' focuses on the interests of justice as between the parties to the particular case. Whether an application for leave to appeal is concerned with an issue of principle or a question of general public importance raises the interests of justice in its broader sense.

1. In support of leave to appeal, Mineralogy submitted that:
   1. Left undisturbed the primary decision would result in substantial injustice because its consequence would be to deny Mineralogy documents that are likely to be forensically significant to the defence of the CITIC parties' claims.
   2. The informational asymmetry between Mineralogy and the CITIC parties meant that discovery of relevant documentary material was indispensable to Mineralogy's defence of the CITIC parties' claims.
2. In oral submissions senior counsel for Mineralogy went as far as to say that being deprived of documents that were directly relevant to the case Mineralogy wished to run was akin to Mineralogy being deprived of its defence (at least where the relevant documents were largely within the possession, power or custody of the CITIC parties).[21]
3. Mineralogy referred to observations by Allanson J as to the role of discovery in promoting the ascertainment of truth in litigation and the public interest that arises in having available all evidence relevant to the issues to be litigated: Singh v Friedman.[22] It may, in this respect, be accepted that discovery is an essential part of the proper administration of justice: Hamersley Iron Pty Ltd v Lovell.[23] But there is no right to an order for discovery. The power to order discovery involves a judicial discretion which is to be exercised having regard to O 1 r 4B: Rules of the Supreme Court O 26 r 7(3). And, as we have stated, the ultimate test is whether the discovery is necessary for disposing fairly of the proceedings, a criterion which finds expression in the Rules of the Supreme Court in O 26 r 11.
4. Mineralogy acknowledged recent decisions in this court in which an appellant had unsuccessfully sought leave to appeal from orders requiring it to provide discovery: Arvind Pty Ltd v Lamers;[24] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [No 2].[25] Mineralogy sought to distinguish those cases on the basis that they were concerned with a scenario the converse of the present case. Mineralogy was seeking additional discovery rather than resisting the provision of discovery. That point is well made. The result in those recent cases cannot be determinative of the application for leave to appeal in the present case.
5. But, likewise, little assistance is provided by those cases in which this court has been persuaded to grant leave to appeal from the dismissal of an application for pre-action discovery. See eg Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd;[26] and Scanlan v 2-4 McCabe Pty Ltd.[27] The result in those cases followed from the nature and purpose of a pre-action discovery application. Leave to appeal was appropriate as there was a real injustice in a prospective claimant having to make a decision whether or not to litigate without sufficient access to relevant documentation.
6. After hearing from senior counsel for Mineralogy, and considering its appellant's case, we were not satisfied that Mineralogy should be granted leave to appeal. In particular, in evaluating the interests of justice we were not satisfied that substantial injustice would result if the primary decision was left unreversed (assuming the decision to be wrong). In this respect it is useful to refer to what was stated by Martin CJ in Waller v Waller:

[T]he injustice that must be demonstrated must be properly characterised as 'substantial'. If every infraction of a party's procedural rights were to be regarded as a 'substantial injustice', this aspect of the requirements for the grant of leave would become meaningless, as virtually every erroneous interlocutory decision will involve an infraction of a party's procedural rights. Accordingly, the notion of 'substantial injustice' looks to the substantive rights of the party adversely affected by the order under review, and requires that party to demonstrate that the effect of the order will go beyond mere inconvenience and procedural disadvantage.[28]

1. This court adopted those observations in Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd [81] and Arvind Pty Ltd v Lamers [16].
2. The question of substantial injustice will commonly require a hypothetical assessment of the impact of the decision on the likely future course of the proceedings: Attorney-General of Botswana v Aussie Diamond Products Pty Ltd [No 2].[29]
3. In rejecting or limiting the discovery categories pursued by Mineralogy on the appeal the primary judge's order did not affect Mineralogy's substantive rights. Indeed, as senior counsel for Mineralogy accepted, correctly, discovery is not as of right.[30] It is, moreover, procedural in nature, not substantive. The assertion that Mineralogy would be denied documents that were likely to be forensically significant to its defence - meaning Mineralogy was effectively being deprived of its defence - was entirely speculative and cannot be accepted. In oral submissions senior counsel for Mineralogy accepted, again correctly, that Mineralogy could not say conclusively that it was being deprived of documents which might matter in the proper disposition of the primary proceedings.[31] That was particularly the case given the undoubted scope and breadth of the discovery categories which were ordered by the primary judge. The application for leave to appeal was not to be evaluated by considering the additional discovery categories sought on appeal in isolation. The assertion of substantial injustice fell to be assessed in the context of the extensive discovery categories that were allowed. In those circumstances the risk of any injustice was remote. Mineralogy was asserting substantial injustice that was no more than theoretical rather than real.
4. In any case, if prior to or at trial it becomes apparent that Mineralogy is or may be suffering substantial injustice as a result of the primary judge erroneously rejecting or limiting the discovery categories, there are - as senior counsel for Mineralogy acknowledged at the appeal hearing - available procedural mechanisms that Mineralogy may employ to overcome that injustice.[32]
5. The absence of demonstrated substantial injustice were the primary decision to remain unreversed sufficed to refuse the application for leave to appeal. However, considering the interests of justice as a whole, there were a number of other factors which militated against the grant of leave to appeal. We will mention those matters for completeness. Collectively they support the refusal of leave to appeal even if, contrary to our view, Mineralogy might be subjected to substantial injustice as a result of the primary decision being left unreversed (assuming the decision to be wrong).
6. First, the application for leave to appeal does not raise an issue of principle. Nor is it concerned with a question of general public importance. Rather, Mineralogy asserts that the primary judge misapplied conventional and orthodox legal principles that were correctly stated by his Honour. Second, on the face of the primary decision - and having considered Mineralogy's oral and written submissions - the primary decision does not present as one that involves a reasonably clear injustice. Third, the primary decision was an interlocutory decision of a procedural character by a Commercial and Managed Cases List judge. The 'special restraint' that applies to appellate review of such decisions is applicable. This is not a matter to be given mere lip service. This court actively discourages such appeals for good reason. Fourth, reading the primary decision fairly and as a whole it is evident that it is informed by the primary judge's advantage as the case manager of the primary proceedings. Finally, for reasons we will now come to, we are not satisfied that the primary judge's decision is wrong or attended with sufficient doubt to justify the grant of leave.
7. In the circumstances Mineralogy's application for leave to appeal had to be refused.

Disposition - the merits of the grounds of appeal

1. It is appropriate to provide brief reasons on the merits of the grounds of appeal. However, we do not intend to address the minutiae of the parties' competing positions on the grounds of appeal. One of the purposes of the requirement for leave to appeal would be undermined were it necessary for the court to provide overly detailed reasons for dismissing an application for leave to appeal.
2. We have already explained why, in our opinion, the application for leave to appeal had to be refused given the lack of any substantial injustice were the primary decision to remain unreversed. The apparent lack of merit in all but one of the grounds of appeal also supports the conclusion that leave to appeal should be refused. But, for the reasons we have given, the application for leave to appeal had to fail irrespective of the merits of the grounds of the appeal.
3. In any case, while it is usual to give short reasons for refusing leave to appeal, those reasons need not be extensive: Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic).[33] In that respect what follows addresses the grounds of appeal more fulsomely than is necessary. It does so in deference to the detailed written and oral submissions made on behalf of Mineralogy and the CITIC parties.

1. Ground 1 is not reproduced in the annexure to these reasons. It provides:

The primary judge erred in fact and law by taking into account an erroneous consideration, namely that the course of the conferral process was relevant to the exercise of his Honour's discretion in circumstances where his Honour had found it was not the case that the appellant ... was to be punished or penalised in some way for the lack of early conferral.

[Primary decision] (J) at [17], [22]

1. Ground 1 is concerned with observations made by the primary judge as to Mineralogy's approach to conferral on the discovery categories. Initial conferral attempts by the CITIC parties in February 2024 were rebuffed by Mineralogy. However, at that time - when the CITIC parties sought orders compelling conferral - Cobby J declined to order conferral on the basis that it was premature. Accordingly, Mineralogy's non-conferral in February 2024 was effectively justified.
2. Mineralogy further declined to confer in August 2024. It was not until September 2024, after the court's orders of 11 September 2024, that Mineralogy actively engaged in a conferral process about discovery. The primary judge described Mineralogy's earlier failure to confer as 'disappointing' but said that it was 'not the case that Mineralogy is now to be punished or penalised' for the lack of early conferral [17] (original emphasis). Mineralogy embraced that part of the primary decision. His Honour explained, however, that the failure to confer in a timely way had impacts on the litigation [17] - [21].
3. Mineralogy contends that the primary judge then fell into error in the following passage:

To be clear, the manner in which the conferral process has played out does not now prevent this Court from exercising its discretion to expand the scope of the discovery categories as proposed by Mineralogy. The important point to be made, in my opinion, is that the course of these events is relevant to the exercise of the discretion [22]. (original emphasis)

1. In support of ground 1 Mineralogy submitted that how the conferral process played out was irrelevant. Mineralogy said that:
   1. The reasons did not explain the relevance of the lack of early conferral.
   2. The reasons were internally inconsistent because consideration of the lack of early conferral could only reduce the scope of the CITIC parties' discovery meaning that, contrary to what had been expressed earlier, Mineralogy was being punished or penalised for how the conferral process had played out.
   3. Mineralogy's earlier failure to confer on the scope of the discovery categories should have been disregarded as an irrelevant consideration.
2. Ground 1 reads the impugned passage of the primary reasons selectively and out of context. The primary judge explained the impact on the litigation resulting from the delay in conferral at [18] - [21]. No challenge is made to those observations. His Honour then returned to this theme when addressing the three overarching matters which had to be given weight in assessing the scope of the disputed definitions and the disputed categories [42] - [71]. Again, no challenge is made to those observations.
3. It is palpably clear, particularly from what was said at [53] (as reproduced at [42.2] above), that the primary judge was not sanctioning Mineralogy for the delay in conferral but instead was cognisant that the non-conferral had consequences for the orders to be made as to discovery given the 28 April 2025 date for the commencement of the trial and the pre-trial steps that had to be completed in the lead up to trial. The primary judge was doing no more than observing, unremarkably, that in appropriately tailoring the scope of the discovery his Honour was considering the position from a point closer to trial than might have been the case had conferral occurred earlier. The proximity of the trial, and the tight timetable for discovery given the many pre‑trial steps that had to be taken to ensure commencement of the trial on 28 April 2025, were relevant considerations in determining the scope of the discovery categories. It is true that this point could have been made without referring to the delay in conferral. But, in context, reading the reasons fairly and as a whole, the primary judge was referring to the conferral process to assuage any doubts that Mineralogy was being punished or penalised for its approach to conferral. The primary judge did not erroneously have regard to an irrelevant consideration.
4. Ground 1 is without merit.

Ground 2: the confining of certain categories to the end-date of 27 November 2023

1. Categories AB, C, D, E, EA, EH, EM, F and G were, in effect, limited to documents with a 27 November 2023 cut-off date. The primary judge decided to impose this limitation for two reasons:
   1. First, his Honour considered it was 'highly unlikely' that documents created after the commencement of the primary proceedings would be directly relevant to the matters in issue [76]. The primary judge stated:

I have great difficulty in accepting that documents which are created after the proceeding were commenced could rationally bear on whether Mineralogy was in breach of its contractual obligations to submit the MCPs by the time the proceedings were in fact commenced. In the result, I was not satisfied [Mineralogy] had properly demonstrated that the time line for discovery should extend beyond the date on which the proceedings were filed [77].

1. Second, given the time sensitivity of the trial directions and the potential scale of the discovery process, there was a need to ensure a high degree of certainty as to the formulation of the categories. The primary judge said that the temporal scope of the categories should be 'clear and certain' [78]. His Honour considered that providing for a post-27 November 2023 cut-off was 'likely' to create an inefficient and unduly burdensome discovery process and 'unlikely' to capture documents of assistance to the resolution of the principal matters in issue [79].
2. It can be seen, in this respect, that the first reason bore on the second reason.
3. Ground 2 is in two parts. Ground 2(a) relates to the first reason mentioned in the preceding paragraph; ground 2(b) relates to the second reason. That said, as was accepted on behalf of Mineralogy at the appeal hearing,[34] ground 2(a) alleges an error in terms of a finding that was not made by the primary judge. In terms ground 2(a) alleges that the primary judge found that documents created after 27 November 2023 and which were otherwise within the discovery categories were highly unlikely to be directly relevant to the matters in issue in the proceedings. But, contrary to what is asserted by ground 2(a), the primary judge said only that it was highly unlikely that documents created after the commencement of the action would be directly relevant - his Honour did not say that documents created after the commencement of the action which otherwise fell within the relevant categories were highly unlikely to be directly relevant.
4. The distinction is material. In determining the discovery categories the primary judge was concerned with the totality of the document collection and review process to be undertaken by the CITIC parties. That process was one to be undertaken in the circumstances of the undoubted scale of the Sino Iron Project and the ongoing mining operations being conducted by the CITIC parties.
5. Once this is understood we cannot detect any error in the primary judge's first reason. We accept that matters might be different if, as Mineralogy argued, the primary judge's finding was to be understood as referring to documents otherwise within the discovery categories but created after the commencement of the primary proceedings. There is force in Mineralogy's argument that documents of a kind found to be directly relevant as falling within the nominated categories did not lose their relevance merely because they were created after the commencement of the proceedings. But the primary judge did not make the putative finding challenged by ground 2(a). The finding as made was directed to post-27 November 2023 documents generally rather than post-27 November 2023 documents otherwise within the nominated discovery categories.
6. Nor, in our opinion, is there merit in ground 2(b). Mineralogy recognised that the second reason was related to the first reason. It was said, however, that discovery of post-27 November 2023 documents was consistent with the pleaded case and the continuing nature of the duty of discovery. While that may be accepted the primary judge plainly had regard to and was persuaded by proportionality considerations in determining to provide for the 27 November 2023 cut-off date. It was well open to the primary judge to do so having regard to the unchallenged overarching matters that his Honour identified. In that respect Mineralogy's contention that there was no evidence to support the finding that ongoing discovery would be inefficient and unduly burdensome was without merit.
7. In addition to the overarching matters there was affidavit evidence from the CITIC parties' solicitor from which the primary judge could infer the magnitude of the task of document collection and review given the Sino Iron Project's ongoing mining operations.
8. Ground 2 fails.

Ground 3: category EE - CITIC parties' consideration of acquiring additional tenure

1. Category EE concerns documents recording or referring to the CITIC parties' consideration of acquiring additional tenure. The primary judge refused this category because his Honour was not satisfied that the category sought relevant documents [100]. Mineralogy submitted that the primary judge erred by determining the question of relevance by the wrong plea. In holding that the category, as drafted, focused on a false issue the primary judge referred to par 40(a)(iii) of the defence (see [22] above). However, Mineralogy sought to justify the category by par 40(a)(iv) of the defence (also summarised at [22] above).
2. It is no part of the CITIC parties' case in the primary proceedings that they seek to acquire access to or the use of additional tenure through or under or to implement the 2023 MCPs.[35]
3. Mineralogy's plea at par 40(a)(iv) of the defence is, in substance, that Sino Iron and Korean Steel failed to plan for the expansion of the mine pit and waste storage capacity to remain adequate for the rate of production and life of mine pursued by them for the purposes of the Sino Iron Project. In support of that plea, among other things, Mineralogy intends to rely on evidence given by Robert Goodwin, one of the CITIC parties' senior executives, in the 2017 MCP proceedings. That evidence, reproduced in Mineralogy's written submissions, was to the effect that, from as early as 2012, planning should have been underway for the expansion of the tailings facility at the Sino Iron Project. This, in Mr Goodwin's opinion, meant additional tenure.
4. Mineralogy alleges a planning failure. We accept that, to the extent that documents within category EE exist, they would tend to disprove the allegation in par 40(a)(iv) of Mineralogy's defence. Conversely, to the extent that documents within category EE do not exist, the absence of such documents would tend to prove the allegation in par 40(a)(iv) so far as it concerns the CITIC parties' consideration of acquiring access to or the use of additional tenure. In that respect category EE is directly relevant to a matter in issue in the primary proceedings. However, while there is thus merit in ground 3, it does not follow that ground 3 should be upheld.
5. Ground 3 should only be upheld if, on a re-exercise of the discretion, this court was persuaded that discovery of category EE was necessary for fairly disposing of the primary proceedings. We are not so persuaded. That is particularly the position given the nature of the CITIC parties' case as summarised at [97] above.
6. Documents of the kind referred to category EE, should they exist, will only be available to the CITIC parties. The absence of such documents will provide an adequate basis for Mineralogy to seek an appropriate inference in support of the plea in par 40(a)(iv) of the defence. If, however, the CITIC parties have such documents, and seek to deploy them to answer the allegation in par 40(a)(iv), that will become evident when the parties exchange their respective tender lists. At that time Mineralogy will be able to seek further and better discovery if it appears that there are reasonable grounds for being fairly certain that the CITIC parties have been selective in the documents they have chosen to rely on.
7. Ground 3 does not justify appellate interference in the orders made on 2 October 2024.

Ground 4: category EF - CITIC parties' consideration of Golder's tailings storage proposals

1. Ground 4 concerns a discrete category, namely, category EF being documents recording or relating to the CITIC parties' consideration of Golder's proposals in connection with the storage of tailings. Golder was apparently a consultant retained by the CITIC parties to provide engineering services in relation to an expanded tailings storage facility. The primary judge recorded that Mr Goodwin confirmed the existence of a Golder report or reports and also that Mr Goodwin had expressed criticisms in relation to the reports [103].
2. The primary judge did not find that category EF lacked direct relevance. Prima facie the requirement of direct relevance is satisfied by reference to par 40(a)(iv) of the defence. However, his Honour considered that the proposed category overlapped with category D and categories OO(iii), (iv), (x) and (xii) from the 2017 MCP proceedings discovery [104] - [105]. The primary judge stated:

[The CITIC parties] will, through these other categories, be obliged to discover a large number of documents concerning the TSF [ie tailings storage facility] and the tailings disposal requirements. I do not consider it appropriate, and indeed it would be disproportionate, to exercise the discretion to order an additional category which would appear to overlap with the other agreed categories. I accordingly refused the category [106].

1. The primary judge also observed that, based on the transcript of Mr Goodwin's evidence in the 2017 MCP proceedings, Mineralogy must already have had access to a range of documents concerning the Golder reports and the CITIC parties' consideration of the reports [104].
2. In support of ground 4 Mineralogy makes two broad submissions. First, Mineralogy says that there was no evidence to support the finding that Mineralogy already had the documents the subject of category EF. Second, Mineralogy says that the circumstance of overlap was not a relevant consideration in favour of refusing the discovery. To the contrary, according to Mineralogy, overlap was warranted where Mineralogy had little oversight over the documents within the custody of the CITIC parties.
3. Mineralogy's first submission is no more than a distraction. The primary judge's dispositive reasoning was based on the apparent overlap between category EF and other discovery categories rather than whether Mineralogy already had access to a range of documents concerning the Golder reports. In any case, to the extent that there was overlap, it necessarily follows that even if Mineralogy did not presently have access to documents concerning the Golder reports and the CITIC parties' consideration of the reports that would not continue to be the position.
4. As to overlap, the primary judge did not suggest that the authorities required that each discovery category be separate and discrete. It may be accepted that frequently there may be some partial overlap between discovery categories. But, in the circumstances of the present case, the primary judge was not satisfied that providing for overlapping discovery categories was necessary for fairly disposing of the proceedings as being disproportionate.
5. There was no challenge to the primary judge's finding of apparent overlap. Nor, on appeal, did Mineralogy seek to identify any realistic possibility that there could be documents falling within category EF which did not fall within the discovery categories which were otherwise provided for and allowed by the primary judge's discovery orders (ie category D and categories OO(iii), (iv), (x) and (xii) from the 2017 MCP proceedings discovery). Mineralogy said instead that the circumstance of overlap was not a relevant consideration.
6. There is no substance in this aspect of ground 4. The apparent overlap was a relevant consideration given the proportionality assessment that informed the decision of whether to order the discovery of particular discovery categories. Given the primary judge's unchallenged findings as to the overarching matters it was well open to the primary judge to conclude that category EF should be rejected as being disproportionate due to the apparent overlap with other discovery categories.
7. Ground 4 fails.

Ground 5: categories EJ, EK and EL - the CITIC parties' future plans

1. Ground 5 concerns three categories of documents said to be directed to whether the 2023 MCPs were an interim measure (category EJ), future phases of the Sino Iron Ore Project after implementation of the 2023 MCPs (category EK) and the interaction between the 2017 MCPs and the 2023 MCPs (category EL).
2. The primary judge held that these discovery categories did not concern documents that were directly relevant to any matter in issue in the primary proceedings [117] - [121]. On appeal Mineralogy contends that documents responsive to categories EJ - EL are directly relevant to two factual issues in the proceedings:
   1. Whether the 2023 MCPs are truly interim in the sense particularised (as to which see [17] above).
   2. The reasonableness or technical and operational merits of the 2023 MCPs and the reasonableness of Mineralogy's refusal to submit the 2023 MCPs.
3. Mineralogy relies, in particular, on pars 64 and 77 of the statement of claim and pars 61(gA), 64(b) and 64(d) of the defence (see [16], [17] and [23] above). It is necessary, in this respect, to reproduce the pleas in the defence.
4. By par 61(gA) of its defence, Mineralogy:

says that, on their terms, the 2023 MCPs are said to be 'interim' to other measures which Sino Iron and Korean Steel have not fully identified, but which include the measures in the 2017 MCPs, which:

(i) are not acceptable to Mineralogy;

(ii) Sino Iron and Korean Steel have no right to compel Mineralogy to accept;

(iii) were found to be defective in the 2017 MCP Decision (including for the reasons summarised in paragraph 2462 of the 2017 MCP Decision);

1. The CITIC parties relevantly deny the plea in par 61(gA). However, that denial does not mean that any documents the subject of categories EJ - EL are directly relevant to the issue raised by par 61(gA). Paragraph 61(gA) does not raise the factual issues relied on by Mineralogy in support of ground 5 but rather whether on their terms the 2023 MCPs are interim to other measures. Accordingly, the issue raised by par 61(gA) concerns the proper characterisation of the 2023 MCPs. Any documents the subject of categories EJ - EL will not tend to prove or disprove that, on their terms, the 2023 MCPs are said to be interim to other measures.
2. In par 64 of its defence, Mineralogy:

(b) says that Sino Iron and Korean Steel have failed to identify any long-term or permanent measures (beyond those in the 2017 MCPs, which are unacceptable) that the 2023 MCPs could facilitate as an 'interim' measure;

(d) says that in the absence of any acceptable good faith proposal from Sino Iron and Korean Steel capable of ensuring the continued operation of the Sino Iron Project for the life of mine, Mineralogy is not bound to consider or accept proposals that are expressed to be 'interim' thereto;

1. The primary judge characterised the plea at par 64(d) of the defence as raising a question of law [121]. Mineralogy does not challenge that characterisation on appeal. Insofar as the pleaded issue involves a question of law, documents of the kind referred to in categories EJ - EL are not directly relevant.
2. The CITIC parties join issue with the plea at par 64(b) of the defence. However, as no particulars are given suggesting that Sino Iron or Korean Steel have identified any long-term or permanent measures that the 2023 MCPs could facilitate as an interim measure - and instead the CITIC parties have given particulars which specifically limit the sense in which the 2023 MCPs are said to be interim - the denial operates by way of putting Mineralogy to proof rather than asserting a positive case. The denial does not operate as a negative pregnant. In that respect there may be a very narrow category of documents that are directly relevant to the factual issue arising from the plea at par 64(b). A category which captured documents by which the CITIC parties identified to Mineralogy any long-term or permanent measures that the 2023 MCPs could facilitate as an interim measure would be directly relevant to the issue raised by the plea at par 64(b). But categories EJ ‑ EL go well beyond the very narrow band of documents that could be directly relevant to the factual issue raised by Mineralogy's plea.
3. Ground 5 fails.

1. For these reasons the court ordered that:
   1. The application for leave to appeal against the orders of the Supreme Court made 2 October 2024 in action CIV/2336/2023 is dismissed.
   2. The appeal is dismissed.
   3. The appellant pay the first, second and third respondents' costs of the appeal, to be assessed if not agreed.
2. The costs order followed the event.

Grounds and Discovery Categories as sought by Mineralogy

(i) created after 27 November 2023 (the only significance of that date being the date proceedings were filed); and

(ii) otherwise were within discovery categories employing the definition 'Post Production Period' (Categories AB, C, D, E, EM, F and G),

were highly unlikely to be directly relevant to the matters in issue in the proceeding, in circumstances where such documents would tend to prove or disprove (at least) contested issues of performance and breach and the availability of the relief sought by [the CITIC parties];

(b) finding that considerations of efficiency and clarity of the temporal scope of the discovery categories supported imposing the commencement of proceedings as an end-date for the 'Post Production Period';

(c) as a consequence of one or both of the errors in subparagraphs (a) and (b), confining Categories EA and EH to documents created no later than 27 November 2023.

J at [75] - [79], [82(a)], [86] and [108]

All Documents from 1 January 2012 to 27 November 2023 recording or referring to the CITIC parties' consideration of the mine pit or waste storage capacity for the purpose of the Sino Iron Project. [Orders Wanted par 3(b)(iii)][36]

All documents from 1 January 2012 to 27 November 2023 which are minutes of the meetings or the budgets of, or for, any of the following groups, teams, committees, departments, or boards:

i the 'Fulcrum Group', 'Project Fulcrum' or 'Fulcrum Team';

vi the boards of CPMM, CITIC Limited (including both CITIC Pacific Ltd and CITIC Ltd as they existed from time to time) or CITIC Minerals International (also known as 'CMI'),

which refer to the expansion of the mine pit or waste storage capacity for the purposes of the Sino Iron Project. [Orders Wanted par 3(b)(iii)][37]

The primary judge erred in law by finding that Category EE focused on a false issue, when, in fact, that category was directly relevant to [40(a)(iv)] of the Amended Defence filed 11 March 2024, which was denied without limitation by the CITIC parties ([1] and [8(c)] of the Amended Reply filed 2 August 2024).

All Documents since 1 January 2012 recording or referring to the CITIC parties' consideration of acquiring access to or use of areas in addition to the Site Lease Area in the MRSLAs.

The primary judge erred in fact and law in rejecting Category EF:

(a) by finding that Mineralogy must have already had access to a range of documents otherwise falling within Category EF when:

(i) the transcript of evidence relied on by his Honour was incapable of supporting that finding, by way of empirical inference or otherwise; and

(ii) there was otherwise no evidence before the Court capable of supporting that finding;

(b) by finding that it was disproportionate, or otherwise not appropriate, on the basis that it involved a likely degree of overlap with other categories.

All Documents since 1 January 2012 recording or relating to the CITIC parties' consideration of Golder's proposals in connection with the storage of tailings.

The primary judge erred in law by rejecting Categories EJ to EL:

(a) as falling outside the pleaded case revealed by the Statement of Claim (SOC), when the subject documents would tend to prove or disprove the contested issues of performance and breach;

(b) on the basis that [61(gA)], [64(b)] and (although not expressly referenced at J [120]) [64(d)] of the Amended Defence, or one or some of them:

(i) were not directly relevant to any issue in dispute,

(ii) otherwise raised a question of law that did not generate a requirement for additional discovery, when, properly characterised,

in circumstances where those paragraphs themselves gave rise to issues of fact that were expressly denied, or the subject of a general joinder of issue, and responsive to Categories EJ to EL.

All Documents during the Post Production Period[38] recording or referring to consideration by the CITIC parties of any measures to enable:

i the full exercise of the Sino/Korean Project Rights; or

ii the full implementation of the Sino Iron Project.

SOC par 64 and pt E [ie breach pleas] (inc par 77)

All Documents during the Post Production Period recording or referring to future phases or stages of the Sino Iron Project after implementation of the 2023 MCPs.

All Documents during the Post Production Period recording or referring to consideration by the CITIC parties of the relationship between the 2017 MCPs and the 2023 MCPs.

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

[1] Mineralogy Pty Ltd v Sino Iron Pty Ltd [2022] WASCA 26 [6] - [22].

[2] Sino Iron Pty Ltd v Mineralogy Pty Ltd [2024] WASC 242 [6] - [27].

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

[4] See Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 15] [823] - [824].

[5] See Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 15] [818].

[6] See Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 15] [825] - [826].

[7] Palmer v CITIC Ltd [No 12] [2024] WASC 322 [5](c), [77] - [93].

[8] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2024] WASC 413 (primary decision) [2].

[9] Roe v The State of Western Australia [2013] WASC 130 [10] - [11].

[10] Maek Pty Ltd v Ibrahim [2022] WASC 285 [25] - [27].

[11] House v The King [1936] HCA 40; (1936) 55 CLR 499, 505.

[12] Supreme Court (Court of Appeal) Rules 2005 (WA) r 32(4A)(a).

[13] Durham v Durham [2011] NSWCA 62; (2011) 80 NSWLR 335 [74].

[14] Appeal ts 2 - 3, 20, 34, 38, 46 - 47.

[16] NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107.

[17] In re the Will of FB Gilbert (Dec'd) [1946] NSWStRp 24; (1946) 46 SR (NSW) 318, 323.

[18] Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, 177.

[19] State of New South Wales v Meredith [2024] NSWCA 287 [21] - [22].

[20] Mohareb v Local Court of New South Wales [2024] NSWCA 235 [25].

[22] Singh v Friedman [2013] WASC 78 [3].

[23] Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316, 321.

[24] Arvind Pty Ltd v Lamers [2020] WASCA 47.

[25] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [No 2] [2023] WASCA 108.

[26] Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd [2016] WASCA 14; (2016) 49 WAR 374.

[27] Scanlan v 2-4 McCabe Pty Ltd [2023] WASCA 135.

[28] Waller v Waller [2009] WASCA 61 [10].

[29] Attorney-General of Botswana v Aussie Diamond Products Pty Ltd [No 2] [2012] WASCA 73 [142].

[33] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; (2001) 207 CLR 72 [25] - [26].

[35] Appeal ts 12, 36, 58, 60. See also, statement of claim par 61(b) (refer to [15] above); reply par 8(c)(xv)(A).