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[2025] WASC 234
General information, not legal advice.
Supreme Court of WA
2025-06-19
Lundberg J
Original judgment source is linked above.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
Schedule 1 to the Defendants' Minute of Proposed Orders**
Schedule 2 to the Defendants' Minute of Proposed Orders**
Schedule 3 to the Defendants' Minute of Proposed Orders**
[1] Chamber summons filed by the plaintiff dated 23 August 2023 (CS) (Folio 35); and defendants' minute of proposed orders dated 10 November 2023 (Folio 41). Both sets of parties amended their orders during the course of the application.
[2] Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 16] [2017] WASC 340.
[3] I will refer throughout to CIV 1808 of 2013 as the action. The related action, CIV 3024 of 2017, was commenced by Mineralogy to address an issue identified by the Court as to the claim for payments of the royalty after the commencement of the initial action. The majority of the folio references in these reasons are to the costs documents filed in CIV 3024 of 2017.
[4] Affidavit of Mr Blaxill sworn 9 November 2023, Attachment CPB-13, pg 98.
[5] I have proceeded on the basis that the claims made by Mineralogy in CIV 1424 of 2021 do not preclude the Court determining the costs issues in CIV 1808 of 2023. Any concern as to double recovery of those costs can be addressed by the Court at a future stage.
[6] Plaintiff's submissions dated 13 October 2023 (PS1) [2] - [4] (Folio 39).
[7] Defendants' submissions dated 10 November 2023 (DS1) [5] and [41] (Folio 42).
[8] CS [1] (Folio 35); Plaintiff's amended minute of proposed order dated 1 December 2023 [1] (Folio 45).
[9] Plaintiff's amended minute of proposed order dated 1 December 2023 [2] (Folio 45); PS1 [132]. The Uniform Law applies to applications for special costs made after 1 July 2022, being the date on which s 141 came into force and the Legal Profession Act 2008 (WA) was repealed.
[10] Defendants' amended minute of proposed orders dated 15 February 2024 [1(a)] and Schedule 1 (Folio 48); DS1 [47] - [48].
[11] I accept the plaintiff's submission in this regard: PS2 [60].
[12] Defendants' amended minute of proposed orders dated 15 February 2024 [1(b)], [2(a)] and Schedule 2 (Folio 48); DS1 [49] - [50].
[13] I accept the plaintiff's submission in this regard: PS2 [62].
[14] Defendants' amended minute of proposed orders dated 15 February 2024 [1(b)] and [2(c)] and Schedule 3 (Folio 48); DS1 [51] - [64].
[15] Defendants' amended minute of proposed orders dated 15 February 2024 [1(b)] and [2(b)] (Folio 48); DS1 [51] - [64].
[16] Defendants' amended minute of proposed orders dated 15 February 2024 refers at [2(b)] to the applications to amend and the amendments to Mineralogy's statement of claim in the Fourth Further Amended Statement of Claim dated 1 April 2016 and in the Fifth Further Amended Statement of Claim dated 25 January 2017, including the proposed amendments dated 13 December 2016, 21 December 2016 and 11 January 2017.
[17] Defendants' amended minute of proposed orders dated 15 February 2024 [3] (Folio 48); DS1 [99] - [106].
[18] Defence to the Sixth Further Amended Statement of Claim and Sixth Further Amended Counterclaim dated 8 December 2017, prayers for relief H to K and AA to DD (Folio 554).
[19] Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 16] [2017] WASC 340.
[20] Sino Iron Pty Ltd v Mineralogy Pty Ltd [2019] WASCA 80; (2019) 55 WAR 89 (Buss P, Murphy and Beech JJA) (Sino Iron Appeal Decision).
[21] Sino Iron Pty Ltd v Mineralogy Pty Ltd [4] - [20].
[22] Orders made on 18 December 2017 (Folio 20).
[25] Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 17] [2018] WASC 8.
[26] Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 18] [2018] WASC 307.
[27] Sino Iron Appeal Decision (CACV 5 of 2018, CACV 6 of 2018 and CACV 9 of 2018).
[28] Sino Iron Pty Ltd v Mineralogy Pty Ltd [2019] WASCA 80 (S), published on 28 June 2019.
[29] Sino Iron Pty Ltd & Ors v Mineralogy Pty Ltd [2020] HCATrans 10 (Kiefel CJ, Gageler and Edelman JJ).
[31] PS1 and Plaintiff's reply submission dated 1 December 2023 (PS2) (Folio 46).
[32] Plaintiff's outline of oral submissions dated 26 February 2024 (Folio 52) (PS3) and Plaintiff's outline of oral submissions in reply dated 27 February 2024 (PS4) (not filed).
[35] Folio 50. See email from Allens to the Court dated 21 February 2024.
[37] Orders made on 8 March 2024 (Folio 54).
[38] Plaintiff's outline of submissions on delay dated 16 March 2024 (PS5) (Folio 56).
[39] Defendants' supplementary submissions dated 15 March 2024 (DS2) (Folio 55).
[40] CS [1] (Folio 35) and Plaintiff's minute of proposed orders dated 23 August 2023 [1] (Folio 34).
[41] Plaintiff's amended minute of proposed orders dated 1 December 2023 (Folio 45).
[42] The plaintiff's minute identified the Legal Profession (Supreme and District Courts) (Contentious Business) Determinations made in 2012, 2014, 2016, 2018, 2020 and 2022.
[44] As with the plaintiff's minute, the defendants' minute identified the Legal Profession (Supreme and District Courts) (Contentious Business) Determinations made in 2012, 2014, 2016, 2018, 2020 and 2022.
[45] Being events on 4 July 2013, 12 August 2014 and 18 December 2017 (Folios 24, 142 and 575 respectively).
[46] Being events on 30 April 2013, 14 May 2013, 12 February 2014, 20 March 2014, 12 August 2014, 20 January 2015, 13 January 2016, 13 May 2016, 9 August 2016, and 19 December 2017 (Folios 10, N/A, 103, 112, 142, 192, 296, 328, 360 and 578 respectively).
[47] Being events on 7 October 2013, 31 October 2013, 28 May 2015 and 27 January 2017 (Folios 53, 69, 251 and 447 respectively).
[48] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [134] (Kirby J) (Oshlack); Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; (2019) 269 CLR 333 [33] (Kiefel CJ, Bell, Keane and Gordon JJ) [59] (Gageler J) (Pentelow); Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 [12] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ) (Sangare).
[49] Pentelow [33] (Kiefel CJ, Bell, Keane and Gordon JJ); [60] (Gageler J).
[50] Frigger v Lean [2012] WASCA 66 [53] (Allanson J, Newnes and Murphy JJA); Naidoo v Williamson [2008] WASCA 179 [39] (Steytler P).
[52] Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96; (2019) 54 WAR 388 [49] (Murphy, Mitchell and Pritchard JJA) (Strzelecki Holdings).
[53] Oshlack [67] (McHugh J); Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S) [51] (Flotilla).
[54] For example, Ridgepoint Corporation Pty Ltd v McCallum Donovan Sweeney (A Firm) [2011] WASC 167 (S) [10] (Kenneth Martin J) (Ridgepoint Corporation).
[55] Strzelecki Holdings [50] - [52] (Murphy, Mitchell and Pritchard JJA).
[56] Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, 543 (Mason CJ), 563 (Toohey J) and 567 (McHugh J) (Latoudis).
[57] Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107 [5] as cited in G E Dal Pont, Law of Costs (4th ed, 2018, LexisNexis Butterworths) (Dal Pont) at [6.15].
[58] Almona Pty Ltd v Parklea Corporation Pty Ltd (No 4) [2020] NSWSC 553 [118] (Robb J) (Almona).
[59] Saraceni v Mentha [2013] WASC 95 (S) [9]; Chen v Chan (No 2) [2009] VSCA 233 [10(5)].
[61] Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S) [7] (Pullin JA and Kenneth Martin J).
[63] Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397, 401 (Woodward J) (Fountain Selected Meats).
[64] Fountain Selected Meats (401) (Woodward J).
[65] Civil Properties Pty Ltd v Miluc Pty Ltd [2011] WASCA 195.
[66] Ben Pelech v Royle [2020] WASCA 168 (S).
[67] Woolworths Ltd v Olson [2004] NSWSC 896 [8] ‑ [12] (Einstein J).
[68] Gomba Holdings UK Limited & Others v Minories Finance Limited & Others (No. 2) [1993] Ch 171; [1992] 4 All ER 588 (Gomba Holdings).
[70] Gomba Holdings (187 ‑ 188) (Scott LJ). See also G E Dal Pont, Law of Costs (5th Edition, 2021, LexisNexis) [15.51].
[71] Rumball & Ors v Mortimore [1999] WASC 66 [9] (Wheeler J).
[72] Rumball & Ors v Mortimore [2000] WASC 126 [15] (Owen J).
[73] Rayner v Australia and New Zealand Banking Group Limited [2003] WASC 264 [26] (Murray and Parker JJ) (Rayner).
[74] Rayner [23] (Murray and Parker JJ).
[75] Kyabram Property Investments Pty Limited v Murray [2005] NSWCA 87 [11] - [14] (Beazley JA, with whom Hodgson and Ipp JJA agreed) (Kyabram Property); Inglis and Anor v Commonwealth Trading Bank of Australia (1973) 47 ALJR 234, 235.
[76] Kyabram Property [12] (Beazley JA, citing Vaisey J in Re Adelphi Hotel (Brighton) Limited [1953] 2 All ER 498, 502).
[77] See also Business Finance Pty Ltd v Casula Projects Pty Ltd (No 2) [2022] NSWSC 1608 [32] (Parker J).
[78] Sino Iron Pty Ltd v Mineralogy [No 2] [2017] WASCA 76 (S).
[79] The following summary of the principles draws on the summary set out in my reasons in INPEX Operations Australia Pty Ltd v AIG Australia Ltd [No 3] [2023] WASC 332 (S) [41].
[80] Sino Iron Pty Ltd v Mineralogy [No 2] [11].
[81] Sino Iron Pty Ltd v Mineralogy [No 2] [11].
[82] Sino Iron Pty Ltd v Mineralogy [No 2] [11].
[83] Sino Iron Pty Ltd v Mineralogy [No 2] [11]; and Electricity Generation and Retail Corporation trading as Synergy v Woodside Energy Ltd [2014] WASC 469 (S) [7] (Le Miere J).
[85] Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400 (Esther Investments).
[86] Esther Investments (408 ‑ 409) (Malcolm CJ).
[87] Lewandowski v Lovell (Unreported, FCt Sct of WA, Library No. 960310, 14 June 1996) (Kennedy, Murray and White JJ) (Lewandowski).
[91] Tzaneros Investments Pty Ltd v Walker Group Constructions Pty Ltd (No 4) [2018] NSWSC 431 (Tzaneros).
[92] Facek v Gargano [2019] VSC 31 (Facek).
[93] Gippsreal Ltd v Kenny [2016] VSCA 319; (2016) 52 VR 149 (Gippsreal).
[94] Stambulich v Ekamper [No 4] [2008] WASCA 189 (Stambulich).
[111] ts 138 - 140 (27 February 2024).
[116] Esther Investments (Malcolm CJ); Lewandowski (Murray and White JJ); Tzaneros (Ball J); Facek (McMillan J); Gippsreal (Whelan, Priest and Kyrou JJ); and Stambulich (Pullin and Newnes JJA).
[117] Esther Investments (408 - 409) (Malcolm CJ).
[118] Mak Industrial Water Solutions Pty Ltd v Doherty [No 3] [2023] WASC 313 (Quinlan CJ).
[119] Mak Industrial Water Solutions Pty Ltd v Doherty [No 3] [2] - [6] (Quinlan CJ).
[124] Esther Investments (404) (Malcolm CJ).
[126] DS1 [54] - [58]. This forms items 1 and 2 in the defendants' schedule.
[127] DS1 [59] - [61]. This forms item 3 in the defendants' schedule.
[128] DS1 [62] - [63]. This forms item 4 in the defendants' schedule.
[129] Barjeba Pty Ltd v Boggs [2023] WASC 232 (S) [33] (Hill J).
[130] I accept the submission of Mineralogy in this regard, at PS2 [63] - [65].
[134] Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105 [25] (McLure P).
[136] Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 13] [2016] WASC 403.
[137] Which are drawn from the summary in the plaintiff's submissions at PS1 [55].
[139] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2021] WASC 170 (Quinlan CJ).
[140] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [247] (Quinlan CJ).
[142] See, for example, Esther Investments (406) (Malcolm CJ); and Tzaneros [38] (Ball J).
[144] CIV 1424 of 2022, SOC [13] (Folio 1).
[145] CIV 1424 of 2022, SOC [13], particular (a)(xxiv) (Folio 1).
[146] CIV 1424 of 2022, SOC [13], particular (a)(xxxii) (Folio 1).
[147] CIV 1424 of 2022, SOC [14] and [18] (Folio 1).
[148] See letter from the CITIC Parties' solicitors to Mineralogy dated 20 October 2021 to this effect: Affidavit of Mr Mirza sworn 1 December 2023, Attachment HKM-1, pg 61.
[149] Affidavit of Mr Blaxill, Attachment CPB-13, pg 99.
[150] Affidavit of Mr Blaxill, Attachment CPB-13, pg 97 (email from Mr Mirza to the Court send on 29 March 2023).
[152] Noting there appears to be a typographical error in cl 30.4(d).
[154] Defence to the Sixth Further Amended Statement of Claim dated 8 December 2017 (Folio 554).
[155] Kyabram Property [12] (Beazley JA).
[156] Dee-Tech Pty Limited v Neddam Holdings Pty Limited (No 2) [2012] NSWSC 517 [44] - [46], especially at [46] (White J) (Dee-Tech).
[158] ts 149 - 150 (27 February 2024).
[160] ts 147 - 150 (27 February 2024).
[162] See prayers for relief A(1), A(2) and B(1) in the Sixth Further Amended Statement of Claim dated 1 December 2017 (Folio 553).
[163] Plaintiff's amended minute of proposed orders dated 1 December 2023 [2] (Folio 45).
[164] Defendants' amended minute of proposed orders dated 15 February 2024 [3]. The CITIC Parties propose that a limit of double the various scale limits be imposed.
[166] ts 116 and ts 158 - 161 (27 February 2024).
[167] See the final paragraph of order 2 of the plaintiff's amended minute of proposed orders dated 1 December 2023; and the final paragraph of order 3 of the defendants' amended minute of proposed orders dated 15 February 2024.
[168] DS1 [14] - [19] and [67] - [70].
[170] DS1, Annexure A (which identifies 28 individual items said to have been abandoned by Mineralogy).
[171] PS2 [103] and [115], and Responsive Annexure A.
[82] Ordinarily an indemnity costs order is appropriate only where the unsuccessful party has been involved in some unreasonable conduct in relation to the proceedings, such as where the institution or continuation of the proceeding was plainly unreasonable or the proceeding was issued or maintained for an ulterior or collateral purpose: see Rosniak v Government Insurance Office (1997) 41 NSWLR 608, 616; PCRZ Investments Pty Ltd v National Golf Holdings Ltd [2002] VSCA 24 [36]. An order for indemnity costs reflects the court's disapproval of the conduct of the unsuccessful party: Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95 [25].
[83] If a party brings a case which is hopeless it can normally be inferred that the proceeding was commenced or continued 'for some ulterior motive or because of some wilful disregard of the known facts or the clearly established law': Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397, 401. But it is not necessary that such an inference be drawn; it is sufficient that the court's resources and the successful party's costs have been wasted on entirely frivolous litigation: Re SCA Properties Pty Ltd (in liq) [1999] QSC 180; (1999) 17 ACLC 1611 [70].
In my view, the making of an order after such an inordinate period of delay and in the circumstances which I have mentioned would be to do something which would tend to 'bring the administration of justice to disrepute among right thinking people', a phrase used in the judgment in Hunter v Chief Constable of West Midland Police [1981] UKHL 13; [1982] AC 529.
There must come a point where the interests of finality of litigation militate against the exercise of discretion in favour of a party whose solicitors or counsel have failed by inadvertence to make an appropriate application at the appropriate time.
...
In my view, the circumstances of this case are such that it would be a wrong exercise of the discretion which I undoubtedly have to exercise it in favour of the defendant in this case. I am not persuaded that it is necessary to show delay coupled with prejudice in the sense in which that was demonstrated in Tak Ming Co Ltd v Yee Sang Metal Supplies Co (supra) before the court would decline to exercise its discretion...
In any event, there is an interest in the finality of litigation, and a party is entitled to order its affairs on the basis of a judgment regularly obtained, entered and perfected in the court. That has been the case in this instance for something over three years. If I be wrong in my view and it is necessary to show some degree of prejudice, the fact that, if an order were made, the state of affairs created by the judgment which has been left to stand for so long would itself constitute sufficient prejudice to make it inexpedient or inequitable to make an order. The fact that the company is a substantial company and could well afford to pay any additional costs involved is not, in my view, a relevant consideration having regard to the other matters I have mentioned. If it is relevant, its significance in the context of this case is outweighed by the conduct of the defendant's solicitors in failing to take any steps to enforce the order for costs which was made or to take any earlier steps to seek a special order. For those reasons, I am of the opinion that the application should be dismissed.
(2019) 55 WAR 89
(2019) 54 WAR 388
(1973) 47 ALJR 234
(1992) 8 WAR 400
(1997) 41 NSWLR 608
(2003) 28 WAR 95
(1988) 81 ALR 397
(1998) 193 CLR 72
(2019) 269 CLR 333
(2019) 265 CLR 164
(1990) 170 CLR 534
(2016) 52 VR 149