MINERALOGY PTY LTD -v- SINO IRON PTY LTD [No 2] [2021] WASCA 105 (25 June 2021)

(a) subject to certain specified matters, Sino must produce no less than 6 million tonnes of Product by no later than 20 March 2013; and

(b) if Sino fails to do so, it must, by no later than one month following 20 March 2013, pay Mineralogy an amount equivalent to the Mineralogy Royalty payable on the amount of Magnetite Ore required to produce 6 million tonnes of Iron Ore Concentrate.

1. The principal claim in the primary proceedings concerned a claim by Mineralogy against Sino/Korean pursuant to cl 6.3 of the Agreements. In addition, Mineralogy also claimed that CITIC was liable as guarantor and/or indemnifier under a deed called the 'Fortescue Coordination Deed' dated 22 October 2008 (FC Deed), for the non‑payment by Sino/Korean of the money allegedly due to Mineralogy under cl 6.3 of the Agreements. The judge described Mineralogy's claim under cl 6.3 of the Agreements, and the related claim under the FC Deed against CITIC as guarantor and/or indemnifier, as the 'MRP money claim'. In these reasons, Mineralogy's claim against Sino/Korean under cl 6.3 of the Agreements, and Mineralogy's related guarantee/indemnity claim against CITIC under the FC Deed for non‑performance of cl 6.3 of the Agreements, are referred to as the 'Clause 6.3 Claims'.
2. There was also a claim by Mr Palmer in the primary proceedings, which was described by the judge as Mr Palmer's 'personal' claim. Mr Palmer's claim was to the effect that if, for any reason, Mineralogy was precluded from prosecuting the Clause 6.3 Claims, he would suffer loss as the ultimate shareholder of Mineralogy. Mr Palmer contended that, although he was not a party to the FC Deed, he was an express object of the guarantee and indemnity given by CITIC.[3] He contended that if Mineralogy were precluded from pursuing the Clause 6.3 Claims, the value of his shareholding in Mineralogy would be diminished in an amount equivalent to the chose in action under cl 6.3 of the Agreements that had been lost by Mineralogy, and that CITIC was liable to him for his loss under the guarantee/indemnity provisions of the FC Deed.[4]
3. Appeal CACV 27 of 2020 is the appeal by Mineralogy against the primary judge's decision (Mineralogy's appeal). Appeal CACV 29 of 2020 is the appeal by Mr Palmer against the primary judge's decision (Mr Palmer's appeal). In Mr Palmer's appeal, the CITIC parties have filed a notice of contention. For the reasons which follow, Mineralogy's appeal should be dismissed. Whilst there are some grounds of Mr Palmer's appeal which have merit, the CITIC parties' notice of contention should be upheld and Mr Palmer's appeal should be dismissed too.

1. Mineralogy first pursued the Clause 6.3 Claims in action CIV 1808 of 2013 (CIV 1808) against the first to third respondents (CITIC defendants). This action was first commenced in the Supreme Court of New South Wales, before being remitted to the Supreme Court of Western Australia under the national cross‑vesting regime. The Clause 6.3 Claims were the founding basis for Mineralogy's action when it began in New South Wales. The Clause 6.3 Claims were later deleted from the statement of claim in December 2013 and subsequently included in a proposed minute dated 1 April 2016. The Clause 6.3 Claims were later deleted, again, pursuant to leave given on 27 January 2017, as discussed in more detail in [100] ‑ [[[5]](2021_105.html#_Ref7 As we previously foreshadowed, the amended pleading no longer presses a claim for ... breach of clause 6.3 of the [Agreements].

1. An affidavit of Mr Palmer in CIV 1808 dated 21 December 2016 in which he stated (par 28):[24]

Mineralogy has removed and abandoned claims for the Minimum Royalty under clause 6.3 of the [Agreements].

1. On 20 January 2017, a directions hearing was convened before the judge to determine, amongst other things:
   1. Mineralogy's pending application for leave to amend its statement of claim to withdraw specific causes of action, including the withdrawal of the Clause 6.3 Claims; and
   2. Mineralogy's request for expedited trial dates, to which the CITIC defendants strongly objected.
2. The judge said that, at that directions hearing on 20 January 2017:[25]

I had observed during dialogue with Mr Scerri QC for the CITIC defendants, in effect, that if the discontinued claims were ever re‑agitated by Mineralogy under a fresh action in the future, that the first thing the CITIC defendants would surely do would be to attack them on the basis that they were an abuse of process (CIV 1808 of 2013, ts 1,540). Mr Scerri QC conceded that to be the case.

1. His Honour then said, again with reference to the hearing on 20 January 2017:[26]

That led me to ask whether the defendants' then expressed concerns over such abandoned causes being later revived was an exercise in 'dancing at shadows' (CIV 1808 of 2013, ts 1,540). (emphasis added)

1. On 27 January 2017, the judge delivered reasons in Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 14][27] (Mineralogy [No 14]), in relation to the interlocutory application heard on 20 January 2017. His Honour concluded that (1) Mineralogy should have leave to amend its statement of claim in terms of the 5FASOC (by way of deletion of claims from the then current statement of claim), and (2) there should be a trial of the Royalty B issues as between the parties in June 2017. The judge said that he acceded to the request by Mineralogy for expedited trial dates, in part, because he considered that earlier dates were achievable due to Mineralogy's deletion of a number of its former claims, including the Clause 6.3 Claims.
2. On 25 January 2017, Mineralogy filed and served a proposed 5FASOC in CIV 1808. The pleading in the 5FASOC did not include any relief concerning the Clause 6.3 Claims. Nor did it contain any reference to cl 6.3 of the Agreements, or CITIC's liability as surety in respect of Sino/Korean's liability under cl 6.3 of the Agreements.

1. On 11 December 2018, the primary proceedings were commenced. The writ was issued by both Mineralogy and Mr Palmer against the CITIC parties. The judge found that the allegations by Mineralogy to recover money under cl 6.3, and Mr Palmer's claim, were 'closely akin' to the discontinued claims in CIV 3166.[28]
2. In respect of the excision of the Clause 6.3 Claims from CIV 1808, the judge said that:[29]

As a matter of the everyday case management of CIV 1808 of 2013, which I case managed from October 2016 to its ultimate trial outcome, I observe that it would have been the easiest thing for Mineralogy, through highly competent senior counsel, over the period between December 2016 to January 2017, whilst then begging for the urgent trial hearing dates for that action, to deal with this issue explicitly. Mineralogy was then contemplating excision amendments to its then 4FASOC. Mineralogy could then have told the court, so instructed and openly, that Mineralogy was seeking to preserve for itself, so as to possibly revive at a later date if it thought fit, some or all of the civil causes of action it had previously pleaded out in CIV 1808 of 2013 seeking liquidated amounts against Sino Iron, Korean Steel and CITIC Ltd. That potentially was never said or even hinted at. An attempted express preservation of the [Clause 6.3 Claims] then and, indeed, of an allied guarantee or indemnity under the [FC Deed], were being taken off the table from CIV 1808 of 2013. Concern was being expressed then by the CITIC defendants about a future revival of such claims. If Mineralogy was not then abandoning these claims once and for all time, then something to that effect could and should surely have been said. It was not. That observation is not a criticism of Mineralogy's counsel. (emphasis added)

1. The judge observed that, on the hearing of the abuse of process application, counsel for Mineralogy and Mr Palmer (1) accepted that Mineralogy's failure at the time to make clear that it was preserving its position was 'unfortunate', and (2) nevertheless, contended that a failure to be more explicit on that issue at the time was not an inhibitor to subsequently pursuing those causes of action in CIV 3129.[30]
2. The judge disagreed with the latter contention and stated:[31]

Given what was, even at the start of 2017, an immense prior and surrounding procedural history background underlying CIV 1808 of 2013 ..., which had included a prior amendment and removal of the [Clause 6.3 Claims], incorporation of [the Clause 6.3 Claims] into a fresh action, a permanent stay of that action on the basis of it being assessed then as an abuse of process by Chaney J, a revival of the same [Clause 6.3 Claims] against Sino Iron, Korean Steel and CITIC Ltd by its 4FASOC by Mineralogy in CIV 1808 of 2013, the situation cried out to be dealt with as regards the excised claims of Mineralogy. In January 2017 there was an obvious need for Mineralogy to be upfront with the court and with the CITIC defendants about the future exposure position concerning the excised [Clause 6.3 Claims] - as well as other civil claims which were then effectively proposed to be removed under Mineralogy's further proposed final pleading amendments for a trial.

With almost $US200 million at stake via the [Clause 6.3 Claims] as [were] formerly claimed in CIV 1808 of 2013 and is claimed again under the present action (and previously in its multiple now discontinued predecessors), there must be no loss of perspective as to the potential fiscal magnitude of this claim. It was and is huge. A deliberate forensic decision was obviously made by Mr Palmer for Mineralogy at December 2016/January 2017 to prioritise Mineralogy's [Royalty B] claim over the [Clause 6.3 Claims]. Commercially speaking, that was a perfectly sensible and understandable tactical decision to take then. If the [Royalty B] issues were ultimately resolved relatively swiftly in Mineralogy's favour, as they have been to date, that result over time would generate for Mineralogy fiscal royalty reverse outcomes of a stable and significantly greater fiscal magnitude. Staggering amounts of royalty money had been at issue in CIV 1808 of 2013. Assessed in an overall context it is not difficult to see from a cold and purely quantitative perspective why the [Clause 6.3 Claims] against Sino Iron and Korean Steel (and the related [FC Deed] guarantee indemnity claim against CITIC Ltd) were then viewed as quantitatively less urgent and less important than the [Royalty B] claim - from the position of potential future financial advantage to Mineralogy at the time, if successful. Mr Palmer's deliberate, tactical prioritisation decision to that end for the [Royalty B] claim followed. Nothing was said about the [Clause 6.3 Claims] other than that it was being excised from Mineralogy's proposed further pleaded statement of claim. (emphasis added)

But had Mineralogy in early 2017 seriously then wished to preserve a future position as regards the [Clause 6.3 Claims] taken out of CIV 1808 of 2013, the preservation of that claim could and should have been canvassed with the court. It was not beyond the wit of senior counsel and the court to hive off, or to defer discrete issues from CIV 1808 of 2013 for later.

Had that course been asked for by Mineralogy, associated temporal explanations as were being proffered in defence of delays to production as pleaded by the CITIC defendants' defence and counterclaim might have been deferred to a later time. Those causes of action could have been discussed and identified to be 'parked' and dealt with under a distinct timetable and trial directions. (emphasis added)

1. The judge found that it was the deliberate decision of Mr Palmer for Mineralogy, in the wake of his Honour's reasons in Mineralogy [No 13], not to press for a determination of any preliminary issue as to the proper construction of the provisions of the Agreements concerning Royalty B on agreed facts.[33]
2. The judge found that, instead, Mineralogy deliberately chose to pare down its whole action in CIV 1808 so as to run a full trial to a completion, on an expedited basis, heard in June 2017. The judge described Mineralogy's decision as 'cold, calculated, voluntary forensic tactical decision, carefully taken for it then by its guiding directorial mind, Mr Palmer'.[34] Further, the judge found that the decision to excise the Clause 6.3 Claims from CIV 1808 'was not forced upon Mineralogy - but it necessarily carries its consequences'.[35]
3. The judge referred to the fact that Mineralogy had explicitly 'parked' some of its other claims in CIV 1808, deferring them to be determined at some later time.[36] His Honour found that this reinforced that such an option had been available to Mineralogy for the Clause 6.3 Claims.[37]
4. The judge noted that Mineralogy and Mr Palmer contended that, in the correspondence between the parties' respective lawyers in December 2016 to January 2017, the CITIC defendants had 'rebuffed' Mineralogy's inter partes undertaking not to pursue the excised claims, including the Clause 6.3 Claims. Mineralogy and Mr Palmer contended that (1) the CITIC defendants had wanted an express undertaking to be given by Mineralogy to the court, (2) Mineralogy would not agree to this extra step, and (3) the undertaking then lapsed, by reason of either non‑acceptance or an express rejection by the CITIC defendants.[38] Mineralogy contended that such a rejection and lapse was significant, particularly in the context that at the 20 January 2017 directions hearing, the court had not imposed, as an express condition of Mineralogy's further leave to amend in respect of the proposed 5FASOC, that the excised claims not be litigated in the future.[39]
5. The judge said that he was 'unable to accept that retrospective gloss on what occurred'.[40] His Honour continued:[41]

For the purposes of evaluating Mineralogy's explanations and its submissions summarised above, I have revisited again all Mr Palmer's affidavits sworn and filed across December 2016 and of January 2017 ... Furthermore, I have read again all passing December 2016/January 2017 lawyer correspondence collected by Mr O'Donahoo as possibly bearing upon this issue at the time ... Taken as a whole, Mineralogy and Mr Palmer's present suggestion that the inter partes undertaking by Mineralogy to not pursue its deleted claims in future was conditional upon that proposal being accepted at then by the CITIC defendants is, in my present assessment, simply not a supportable proposition. The so-called undertaking discussed then in the correspondence was, on my assessment, wholly unqualified. (emphasis added)

1. The judge also referred to his reasons of 27 January 2017 in Mineralogy [No 14], at [50(d)], under the heading 'Is Mineralogy ready, willing and able to perform its obligations under the [Agreements] at this time?'. There, his Honour had outlined four considerations that had 'borne upon [him] in reaching [his] affirmative conclusion to that question', the fourth of which was expressed as follows:[42]

(d) The undertakings and assurances which have been provided in passing correspondence from Mineralogy to date are another positive factor for me.

Revisiting now all the multiple issues and voluminous materials then put before me at January 2017 (see Mineralogy [No 14] [3] - [6]) only serves to reconfirm what I had then assessed to be Mineralogy's expressed position at that time, namely, that Mineralogy was then telling the court as it had told the CITIC defendants in the lawyers' correspondence, that it wished to proceed to an expedited trial of CIV 1808 of 2013. The proposed trial would be on a pared down claim basis that would be reflected in minutes of proposed amendment towards Mineralogy obtaining leave to amend its statement of claim again and to proceed to a trial on the basis of a 5FASOC, with Mineralogy making significant excisional concessions to that end.

In the exchanged iterations of minutes of proposed excisional amendments to Mineralogy's 4FASOC, as were then circulated for that purpose, the formerly raised [Clause 6.3 Claims were] always ruled through - showing it as being then proposed to be removed for the purpose of obtaining the required leave to amend as then was being sought by Mineralogy. Of course, this was in a context of the urgent trial of [Royalty B] issues then being sought by Mineralogy. The expedited trial course was then being fulsomely opposed as inappropriate and, in effect, unachievable by the CITIC defendants at January 2017.

Re-reading those materials again for the purposes of the present application only reaffirms my impression gained at 20 January 2017 which, namely, was to the effect that Mineralogy's excised claims, save where they were expressly being said then by Mineralogy to be being preserved (ie, 'parked'), were otherwise then being permanently removed. That was the 'price', in effect, of the leave to amend the statement of claim of Mineralogy. Unless expressly parked, Mineralogy's excisions were on a once and for all and final basis. That is the rationale for my reference as seen at [50(d)] of Mineralogy [No 14] to the 'undertakings and assurances' which have been provided in the passing correspondence from Mineralogy. (emphasis added)

1. The judge found that the correspondence between lawyers, specifically in relation to the Clause 6.3 Claims (bearing in mind that there were a multitude of other issues also being discussed as in contention at that time), did not convey any qualification by Mineralogy to its undertaking that it would not proceed with excised claims in the future if it were given leave to amend in order to obtain an expedited trial solely concerned with the Royalty B issues.[44]
2. Thus, in respect of Mineralogy's inter partes undertakings, the judge concluded:[45]

I cannot accept as presently accurate or persuasive the attempted rationalisations by Mr Palmer and Mineralogy to the effect that the undertakings referred to in the passing correspondence were only ever put conditionally upon them being accepted then by the CITIC defendants. That is not said. That is not my assessment of the position. And, of course, it would have been very easy then for Mineralogy to make the presumptive future position explicit.

1. The judge found that, as a result, the court proceeded from 27 January 2017 on the basis that, save where a claim had been explicitly 'parked', the excised claims of Mineralogy were being removed once and for all. The judge said that this explained his 'dancing at shadows' remark made to counsel for the CITIC defendants, Mr Scerri QC, at the hearing on 20 January 2017.[46] The judge found that, given his remark to Mr Scerri QC, it would have been the 'easiest thing' for Mineralogy's senior counsel at that hearing to have clarified Mineralogy's position to expressly seek to preserve for the future the excised Clause 6.3 Claims, had Mineralogy genuinely intended that it might potentially be revived in some future litigation. Further, the judge stated:[47]

The comment made at the time towards the fanciful nature of such a potentiality in the exchange with Mr Scerri QC saw me then diminishing the prospects of such a contingency. Mr Scerri QC had expressed his concerns based upon his suffering of many prior adverse experiences over excised causes of action then being revived by Mineralogy under future amendments. Mr Scerri QC's expressed scepticism has subsequently been vindicated, over my naive assessment at the time.

1. The judge stated that it was not until the interlocutory application in the primary proceedings that he learned of the 'short lived predecessor action' in CIV 3011 (raising the same Clause 6.3 Claims), which was commenced by writ on 24 November 2017. The judge noted this was the same day that he delivered the trial reasons for decision in Mineralogy [No 16]. His Honour found that:[48]

Obviously, by the endorsed statement of claim [in CIV 3011], that action had been under an active preparatory consideration for some time before, in order to produce on that very day a fully pleaded out statement of claim as is seen endorsed to that short lived writ.

1. The judge described it as a 'surprise', following the excision of the Clause 6.3 Claims from CIV 1808, to later learn of the commencement of Mineralogy's action, on 21 December 2017, in CIV 3166. The judge stated that it was 'no real surprise' that Mineralogy discontinued the action in CIV 3166 on 8 May 2018, given the immediate challenge to that action raised by the CITIC defendants. However, the judge stated that it was again a 'surprise' when the primary proceedings, in CIV 3129, were commenced on 11 December 2018 by Mineralogy and Mr Palmer.[49]
2. The judge accepted that the litigation of the Clause 6.3 Claims would have added weeks to a trial.[50] His Honour also found that the explanations in Mr Palmer's affidavit of 8 May 2019 concerning what occurred:[51]

[P]rovide pellucid insights to his thinking and underlying the tactical decisions made at the time for Mineralogy by him. But they do not, with respect, provide any legitimate rationalisation or a proper explanation to justify what occurred.

1. In respect of such decisions, the judge found:[52]

Deliberate forensic decisions were obviously made by Mineralogy and then implemented on a tactical basis - in a fashion I evaluate must undoubtedly be vexing to the CITIC defendants irrespective of their scale and resources. Recommencements followed by the serial discontinuances as are now seen collected under the procedural history as earlier detailed, on my assessment, constitute an abuse of the processes of the court and of its procedures by Mineralogy and Mr Palmer.

I accept that Mr Palmer was motivated by a desire to simplify matters to obtain an expedited trial at June 2017 for chiefly the [Royalty B] issues. I also accept that Mineralogy would have been hampered or frustrated against achieving that objective, if all the ... arguments [in relation to the Clause 6.3 Claims], and particularly the CITIC defendants' many delay defences as scheduled and extending over 150 pages by the CITIC defendants needed to be determined. Nevertheless, in the end, that is no excuse for what has unfolded. It was easily avoidable. (emphasis added)

1. Further, in relation to the excision of the Clause 6.3 Claims from CIV 1808, the judge found:[53]

[A]n expressly discussed 'parking' for a future determination of the [Clause 6.3 Claims] issues for the future could have been explicitly raised to be canvassed by Mineralogy as a future possible reviving claim event, if that prospect were then seriously entertained by Mineralogy. No doubt such a preservation direction would have been resisted. But that was no excuse not to confront the issue head on then. Arrangements could then have been provided for under bespoken case management directions - so that all parties and the court would then have then known, under clear terms, what causes of action were remaining preserved on the table as live, and what claims were then being taken off the table and were gone forever.

No acceptable explanation has been provided to justify Mineralogy's failure to ventilate at the time during January 2017 the issue of a potential revival of the [Clause 6.3 Claims] at a later time in another action. Not only was that omission unfortunate, it was contextually illegitimate, in my view. (emphasis added)

1. The judge accordingly concluded that the primary proceedings constituted an abuse of process.[54] His Honour said:[55]

I am of the end view that application of the abuse of process principles as recently applied in UBS AG v Tyne requires the present action by Mineralogy and Mr Palmer must, indeed, be evaluated as an abuse of the process of the court. As a result it must be permanently stayed, in my view.

...

Consequently, I conclude at the end that there has been established not merely an Anshun estoppel vis-à-vis the CITIC defendants and Mineralogy as regards the [Clause 6.3 Claims]. Beyond that there is established an abuse of process by reason of the pursuit of the present action arising out of what has occurred. The abuse of process is applicable not only as against Mineralogy, but also, I conclude, against Mr Palmer. He is obviously the guiding hand, driving mind and tactical decision maker behind every step and decision that was and is made along the way by Mineralogy. His position is in every respect akin to that of Mr Tyne in UBS AG v Tyne.

1. His Honour also found Mr Palmer's 'personal claim' to be an abuse of process (the reasons for which are set out later in [220] ‑ [221] below).

Procedural events in CIV 1808: March 2013 - November 2017

1. Before turning to the issues in Mineralogy's appeal, it is necessary to set out in greater detail the procedural course of events in CIV 1808, including Mineralogy's decision not to proceed with the Clause 6.3 Claims. As will be seen, close attention to the course of proceedings and to the parties' communications informs the evaluation of whether, in all the circumstances, the primary proceedings constituted an abuse of process.

1. On 18 March 2013, Mineralogy commenced a proceeding in the Supreme Court of New South Wales against the CITIC defendants regarding, among other things, the construction and performance of cl 6.3 of the Agreements. The claim sought payment of the minimum production royalty under cl 6.3 and other orders.
2. On 30 April 2013, the New South Wales proceeding was transferred to the Supreme Court of Western Australia and became proceeding CIV 1808.
3. On 3 June 2013, Mineralogy filed an amended statement of claim in CIV 1808 which included the Clause 6.3 Claims.
4. On 14 August 2013, Mineralogy filed a further amended statement of claim which included the Clause 6.3 Claims.
5. On 2 December 2013, Mineralogy filed a further amended reply and an amended defence to counterclaim in which Mineralogy pleaded that the Agreements had been terminated by reason of frustration, on the basis that Royalty B was not capable of calculation.
6. On 2 December 2013, Mineralogy applied for an urgent hearing in CIV 1808 to determine the issue of whether the Agreements had been terminated by frustration.
7. On 4 December 2013, Edelman J (as his Honour then was) refused Mineralogy's application for an urgent trial.[56]
8. On 10 December 2013, Mineralogy filed a second further amended statement of claim alleging that the Agreements were terminated by frustration. This pleading withdrew (ie, deleted) the Clause 6.3 Claims.

1. On 20 March 2014, Edelman J made orders that after the filing of Mineralogy's proposed third further amended statement of claim, no further amendments could be made without leave.
2. On 15 August 2014, Mineralogy filed its third further amended statement of claim, which did not include the Clause 6.3 Claims.
3. Between August 2014 and May 2015, Mineralogy made four applications for determination of preliminary issues. Three were dismissed by Chaney J on 28 May 2015. Mineralogy abandoned the other application.
4. On 4 September 2014, the CITIC defendants filed a defence to the third further amended statement of claim and a further amended counterclaim. The counterclaim sought declarations regarding the Clause 6.3 Claims. Mineralogy's third further amended statement of claim, to which this defence responded, did not include the Clause 6.3 Claims at the time.
5. On 24 October 2014, the CITIC defendants filed a defence to the third further amended statement of claim and a second further amended counterclaim. Again, the counterclaim sought declarations regarding the Clause 6.3 Claims in a context in which Mineralogy's third further amended statement of claim did not plead the Clause 6.3 Claims.

1. On 14 April 2015, the CITIC defendants filed an amended defence to the third further amended statement of claim and third further amended counterclaim. The counterclaim, again, sought declarations regarding the Clause 6.3 Claims in a context where the third further amended statement of claim did not plead the Clause 6.3 Claims.
2. On 29 May 2015, the CITIC defendants filed a further amended defence to the third further amended statement of claim and a fourth further amended counterclaim in CIV 1808. The counterclaim, again, sought declarations regarding the Clause 6.3 Claims where Mineralogy was not pleading the Clause 6.3 Claims in its statement of claim.
3. In the period December 2015 to March 2016, Mineralogy filed an interlocutory application seeking mandatory injunctive orders for the payment of Royalty B. The application was dismissed by Tottle J.[57] Mineralogy appealed, and the Court of Appeal allowed the appeal and remitted the injunction application for a new hearing before the case manager.[58]

1. On 1 April 2016, Mineralogy filed a minute of proposed fourth further amended statement of claim (proposed 4FASOC), which incorporated the Clause 6.3 Claims, pursuant to orders made by Chaney J on 31 March 2016 granting Mineralogy leave to amend its statement of claim.
2. On 27 and 28 October 2016, the judge heard the remitted mandatory injunction application.
3. On 28 October 2016, Mineralogy wrote to the CITIC defendants' solicitors (Allens) concerning CIV 1808, stating its intention to 'file and serve a new and shortened statement of claim by the 16th November [2016] which will inter alia drop a number of claims'.[59] The letter stated that the parties should use the time before the next strategic conference to focus on what they believe are the main issues, suggesting that if the parties can reduce the issues and claims between them, then more court time would be freed up and the costs would be reduced.
4. On 1 November 2016, Mineralogy wrote to Allens in relation to its 'fourth amended statement of claim' in CIV 1808, stating that Mineralogy 'does not intend to press [the Clause 6.3 Claims]', and that this would be reflected in the new statement of claim which Mineralogy would serve (as foreshadowed in the 28 October 2016 letter). The letter stated that this decision would shorten the trial and that the decision had been made in the public interest.[60]
5. On 1 November 2016, Allens wrote to Mineralogy requesting a copy of Mineralogy's proposed 'new and shortened statement of claim'.[61]
6. On 2 November 2016, Mineralogy wrote to Allens attaching a copy of a letter from Mineralogy to CITIC, Sino and Korean.[62] The letter sought the CITIC defendants' consent to various forms of injunctive orders. The letter set out reasons for Mineralogy's request. One of those reasons was the notice given on 1 November 2016 by Mineralogy to Sino that Mineralogy had decided not to press its claims under cl 6.3 of the Agreements. The letter also referred to cl 30.6 of the Agreements, stating that Mineralogy reserved its rights to take any action available to it.
7. On 7 November 2016, Mineralogy wrote to Allens stating that it intended to file an application for the determination of a preliminary point, being the construction of cl 8 of the Agreements (in relation to Royalty B).[63]
8. On 8 November 2016, Mineralogy wrote to Allens concerning its foreshadowed application for the determination of a preliminary point, stating that Mineralogy's proposed amended statement of claim 'will include a claim under cl 8.2 and cl 8.6 of [the Agreements]'.[64]
9. On 8 November 2016, Allens wrote to Mineralogy stating that it was not possible to consider Mineralogy's proposal for the hearing and determination of a preliminary point in the absence of Mineralogy's proposed amended pleading.[65]
10. On 9 November 2016, Allens wrote to Mineralogy requesting a copy of the proposed amended pleading or, if that were unavailable, a complete statement of all of the claims that Mineralogy intended to withdraw, and a copy of the proposed preliminary question.[66]
11. On 16 November 2016, Mineralogy wrote to Allens stating that the preliminary point to be determined concerned the proper construction of cl 3.2, cl 3.3, cl 8.1, cl 8.2 and cl 8.6 of the Agreements.[67]
12. On 18 November 2016, Mineralogy wrote to the judge's associate in relation to CIV 1808, copied to Allens, stating that 'in the public interest to assist the court in setting an early trial date [Mineralogy] intends to reduce its claims by not pressing its claims for termination, repudiation [and the Clause 6.3 Claims]. [Mineralogy] will seek leave to file an amended statement of claim'.[68]
13. On 28 November 2016, Mineralogy wrote to Allens setting out the matters that Mineralogy intended to be addressed as a preliminary point.[69]
14. On 2 December 2016, Mineralogy wrote to Allens stating that the preliminary point could not be determined or dealt with until after delivery of the judge's decision on the remitted injunction application.[70]
15. On 13 December 2016, Kenneth Martin J delivered his decision in the remitted injunction application in Mineralogy [No 13]. His Honour made mandatory interlocutory orders for the payment of Royalty B. In his reasons, his Honour indicated his view that such orders for payment should, in effect, be conditional on Mineralogy withdrawing any assertion that the Agreements had been terminated.[71]
16. On 13 December 2016, Mineralogy wrote to Allens attaching a copy of Mineralogy's proposed 5FASOC in CIV 1808. The letter stated, amongst other things, that (as previously foreshadowed) the amended pleading would no longer press the Clause 6.3 Claims. The letter stated that the amendment would substantially reduce the factual matters in dispute and that the issues had been narrowed considering the public interest in bringing the matter on for the hearing as expeditiously as possible. The letter estimated that the substantive hearing, based on this amended pleading, would go for two weeks. The letter sought the CITIC defendants' consent to the orders in the draft chamber summons attached to the letter.[72]
17. On 14 December 2016, Mineralogy filed an affidavit of Mr Palmer affirmed on 14 December 2016, which stated:[73]
    1. I have read the decision of [Kenneth] Martin J in [Mineralogy [No 13]] delivered on 13 December 2016.
    2. At [229] of [Mineralogy [No 13]], [Kenneth] Martin J stated that the Court would afford Mineralogy the opportunity, should it wish to do so, to remove the claim for termination from its [4FASOC] and in the event of which, his Honour indicated he could see no reason why interlocutory injunctive orders in respect of the payment of sums on account of the Mineralogy Royalty to 30 June 2016 (at [230]) and ongoing on a quarterly basis (at [235]) should not be paid.
    3. Since early November 2016, Mineralogy placed the [CITIC defendants] on notice of its intention to seek leave to file an amended statement of claim to, inter alia, remove the claim for termination. Mineralogy had indicated to the [CITIC defendants] that it would defer doing so until receipt of the above judgment.
    4. Judgment having now been received, Mineralogy is grateful for the opportunity to proceed with an amendment to its application to, inter alia, formalise the orders in respect of the payment of the sums referred to in [218], [230] and [235] of his Honour's judgment.
    5. Annexed hereto and marked CFP‑01 is a Chambers Summons:

(a) attaching a document titled 'Fifth Further Amended Statement of Claim' [5FASOC]; and

(b) proposing a series of orders that reflects, with one exception, [218] and following of the judgment of [Kenneth] Martin J, in particular with respect to the payment by Sino and Korean of the sums referred to in [218], [230] and [235] of his Honour's judgment.

1. I confirm as a director of Mineralogy and as a person duly authorised to make this affidavit on Mineralogy's behalf that it:

(a) unequivocally withdraws any claim that the [Agreements] have been terminated; and

(b) is ready, willing and able to perform its future and ongoing obligations under the [Agreements].

1. At [234] of the above judgment [Kenneth] Martin J indicated that he considered it may be appropriate for the matter to proceed to a preliminary determination of all issues relevant to [Royalty B]. Mineralogy['s] view is as the matter is approaching its fourth anniversary the proceedings should be set down for trial as soon as possible.
2. As I address further below, the [5FASOC] not only drops any claim for termination, but substantially narrows the matters in dispute, particularly those matters that may be factually intensive.

1. Even prior to receipt of the judgment of [Kenneth] Martin J [in Mineralogy [No 13]], Mineralogy had considered means by which the causes of action in the proceedings could be simplified and the public interest in bringing the matter on for trial could be achieved. Mineralogy has prepared the [5FASOC] to achieve these objectives.
2. The [5FASOC] no longer presses claims for:

(a) termination of the [Agreements];

(b) repudiation of the [Agreements];

(c) breach of clause 6.3 of the [Agreements]; or

(d) breach of the Standard of Work Provisions of the [Agreements].

1. Further, the scope of the claim for breach of the Legal Requirements has been reduced to what Mineralogy considers ought to be a matter of construction of the relevant Proposal documentation approved by the Minister under the State Agreement, with a corresponding claim for damages.
2. A claim for conversion of property is also made. Submissions to this effect were made by Senior Counsel for Mineralogy in the hearing before [Kenneth] Martin J. Mineralogy considers that argument to be simply the 'other side of the coin' of the principal dispute in these proceedings, whether [Royalty B] is payable.
3. The conversion claim is to the effect that in breaching the Conditions of Grant of the [Agreements], including inter alia the obligation to pay the Mineralogy Royalty, [Sino] and [Korean] have unlawfully converted (and continue to unlawfully convert) 'Magnetite Ore' extracted from the 'Mine Area' and any 'Iron Ore Concentrates' and 'Products' derived from the Magnetite Ore that has been extracted in purported reliance upon the [Agreements] (the words in quotation marks being defined in the [Agreements]).
4. The [5FASOC] also includes one new claim, the factual basis of which arose after the hearing of the matter before [Kenneth] Martin J and hence which could not have been agitated at that time. Mineralogy considered it appropriate to bring all relevant claims as part of these proceedings, however, if the Court indicated a preference otherwise, it would be comment to remove that claim from [5FASOC] and to file fresh proceedings in respect of that new claim.
5. Mineralogy has amended [5FASOC] to remove causes of action so that, inter alia:

(a) it is not necessary for [Mineralogy] to be given discovery by the [CITIC defendants], a process which the [CITIC defendants] advised at the strategic conference held on 12 October, 2016 would take in excess of 6 months;

(b) the issues in dispute in respect of which witnesses will be required to give evidence are significantly reduced, reducing Mineralogy's estimated time for trial to 2 weeks; and

(c) the opportunity for and prospects of settlement are hopefully enhanced.

1. On 9 November, 2016, Mineralogy wrote to the [CITIC defendants] explaining how the basis upon which it intended to amend its statement of claim. (emphasis added)
2. On 14 December 2016, there was a directions hearing, where the following exchange between counsel for Mineralogy and the judge occurred:[74]

[COUNSEL FOR MINERALOGY]: Your Honour, the orders we're seeking today are the ones that your Honour has identified. The basic position is that once we have filed an amended statement of claim, then we believe that some further programming orders can be made. The reason for that submission, your Honour, is that in the further amended statement of claim it is our hope not only to drop the termination claims but to narrow the dispute in question between the parties and attempt to eliminate what might otherwise be considered to be allegations involving lengthy factual disputes.

And, then, the proposal would be that we would seek the earliest possible trial date, because we believe that the court might be better able to accommodate us once it has a more narrow dispute. We're aware, from the reasons which your Honour gave, that your Honour has suggested that the parties should in good faith seek to advance a preliminary question in relation to the issues concerning [Royalty B].

Our proposal would see a narrowing of the issues such that we believe that the more efficient approach would be to have an early trial date on all matters. But, as I say, I accept, your Honour, on the current pleading, that the suggestion made by her Honour in your reasons appears sensible, because of the others [sic] matters that would necessarily expand the hearing date.

But if we are able, in addition to dropping termination claims, to narrow the issues in dispute, then a more efficient way of proceeding would be to have trial directions. And, of course, your Honour - of course - we are agreeable to mediation and mediation orders. It's a question of when they should or should not be made. There's no suggestion by not pressing those today that we are opposing that course, your Honour.

[THE JUDGE]: Yes. All right. I understand that. I think - as regards the observations that are made in the reasons concerning a preliminary issue concerning the determination of [Royalty B] issues, those remarks were made within the framework of the wider issues then live, and in fact still live, on the pleading.

But if the pleading is in fact to be truncated in terms of the issues, to, in effect, concentrate effectively on [Royalty B] and not much more, then effectively the same policy objective is being pursued, so I understand that. In terms of mediation, there was actually a chamber summons filed on the part of [Mineralogy], seeking orders for mediation.

I've just listed that formally this afternoon, just for mention. And we can talk about that later, but it seems to me at the moment the pressing items are giving effect to the reasons in terms of payments and then deciding what we're going to do about an amended statement of claim, particularly dealing with a excisement [sic] of the termination of the [Agreements]. After that, we can proceed to lesser tier issues, but they are the critical things at the moment I think. (emphasis added)

1. On 21 December 2016, Allens wrote to Mineralogy in relation to CIV 1808, seeking confirmation that, as a condition of obtaining any leave to amend its pleading, Mineralogy would not re‑agitate, in CIV 1808 or in any other proceeding, the claims that it had proposed to delete in CIV 1808 by its proposed 5FASOC.[75]
2. On 21 December 2016, Mineralogy filed a chamber summons in CIV 1808 for leave to amend the statement of claim in terms of the 5FASOC. The proposed pleading omitted the Clause 6.3 Claims.
3. On 21 December 2016, Mineralogy filed an affidavit of Mr Palmer, affirmed on 21 December 2016, which stated:[76]
   1. I have read the decision of [Kenneth] Martin J in [Mineralogy [No 13]] delivered on 13 December 2016. (Judgment)
   2. At [229] of his judgment, [Kenneth] Martin J stated that the Court would afford Mineralogy the opportunity, should it wish to do so, to remove the claim for termination from its [4FASOC] and in the event of which, his Honour indicated he could see no reason why interlocutory injunctive orders in respect of the payment of sums on account of the Mineralogy Royalty to 30 June 2016 (at [230]) and ongoing on a quarterly basis (at [235]) should not be paid.
   3. Judgment having now been received, Mineralogy is grateful for the opportunity to proceed with an amendment to its application to, inter alia, formalise the orders in respect of the payment of the sums referred to in [218], [230] and [235] of his Honour's judgment.
   4. Annexed hereto and marked CFP‑01 is a Chambers Summons: proposing a series of orders that reflects, with one exception, [218] and following of the judgment of [Kenneth] Martin J, in particular with respect to the payment by Sino and Korean of the sums referred to in [218], [230] and [235] of his Honour's judgment.

1. I confirm as a director of Mineralogy and as a person duly authorised to make this affidavit on Mineralogy's behalf that, Mineralogy unequivocally withdraws any claim that the [Agreements] have been terminated; and confirms Mineralogy is ready, willing and able to perform its future and ongoing obligations under the [Agreements] as between [Mineralogy] and [Sino] and [Korean].

1. At [234] of the Judgment [Kenneth] Martin J indicated that he considered it may be appropriate for the matter to proceed to a preliminary determination of all issues relevant to [Royalty B]. Mineralogy's view is as the matter is approaching its fourth anniversary the proceedings should be set down for trial as soon as possible.
2. As I address further below, the proposed [5FASOC] not only drops any claim for termination, but substantially narrows the matters in dispute, particularly those matters that may be factually intensive. Mineralogy therefore considers that the Court, following review of the [5FASOC], may consider it more appropriate to list the matter for an expeditious trial date including mediation. Annexed hereto and marked CFP‑02 is a draft programming order to progress the matter to final hearing sought in CFP‑01.
3. Further, with respect to the proposal for a preliminary point regarding the calculation of [Royalty B], the [5FASOC] makes claims under the Mining Act 1978 (WA) for payment of the value of the Products and in equity.
4. Mineralogy therefore considers there will be no saving in time and cost in proceeding with a preliminary point at this stage, given the narrowed claims now pressed in 5FASOC and the fact that any determination of a preliminary point could still be subject to an appeal which will only further delay the final determination of these proceedings and extend the prejudice that Mineralogy and third parties are suffering.

1. Mineralogy has considered means by which the causes of action can be simplified, public interest issues relating to the implications of termination of the [Agreements] can be addressed, the steps required to ready the matter for trial be reduced and the time required for hearing be reduced. Mineralogy has prepared the 5FASOC to achieve these objectives.
2. Mineralogy's claims for repudiation and termination of the [Agreements] are no longer made[.] Mineralogy considers this decision is of great significance as it changes fundamental legal position as between the parties and increases the prospects of a negotiated settlement. If Mineralogy was to be successful in the claims in the current statement of Claim that the [CITIC defendants] repudiated the [Agreements] and Mineralogy had validly terminated the [Agreements], the consequences of termination of the [Agreements] would have been that the [CITIC defendants'] project would have to cease operations resulting in the loss of many jobs, the loss of significant benefits to the Western Australian and Australian economies, disruption of trade with and the supply of magnetite ore to China and a loss of royalties to the State. Mineralogy has adopted this approach to promote the public interest and to achieve a trial as soon as possible.
3. Mineralogy has removed and abandoned claims for the Minimum Royalty under clause 6.3 of the [Agreements]. And has removed and abandoned Mineralogy's extensive claims for breaches of clause 16 of the [Agreements] and the Standard of work claims. Mineralogy has also narrowed its claims for breaches by the [CITIC defendants] of Legal Requirements to just one statutory breach.
4. Mineralogy has amended its claim to remove causes of action so that:

(a) It is not necessary for [Mineralogy] to be given discovery by the [CITIC defendants], a process which the [CITIC defendants] advised at the strategic conference held on 12 October, 2016 would take in excess of 6 months;

(b) The issues in dispute in respect of which witnesses will be required to give evidence are minimal reducing the time for trial to 2 weeks;

(c) The opportunity for and prospects of settlement are enhanced.

1. On the 19th of December 2016 Mineralogy filed the Plaintiff's usual undertaking as to damages in accordance with the orders made by [Kenneth] Martin J on the 14th December 2016 annexed hereto and marked CFP‑07 is a true copy of the undertaking filed by Mineralogy.
2. The 5FASOC sets out the claims that Mineralogy will pursue against the [CITIC defendants]. The claims are all within time and involve the same matrix of facts and circumstances and should be tried together to best utilise the resources of the courts.

1. ... Notwithstanding the prejudice Mineralogy has received by the court intervening to change the terms of the [Agreements] by unorthodox judgments as stated in the Judgement [sic] of Western Australian Court of Appeal Mineralogy['s] position is the proceeding needs to be heard as soon as possible. For this reason, Mineralogy, has abandoned and has not pressed many of its claims and reduced the scope of others in its 5FASOC. (emphasis added)
2. On 27 December 2016, Mineralogy filed a 'plaintiff's minute of orders' for leave to amend and further directions and orders. Leave to amend was sought in terms of the 5FASOC. The minute also proposed orders for two payments by Sino and Korean, each of an amount exceeding US$29.8 million.[77]
3. On 28 December 2016, Mineralogy responded to Allens' letter dated 21 December 2016, refusing to consent to the terms of the orders proposed by Allens in that letter. Amongst other things, Mineralogy's letter dated 28 December 2016 stated:[78]

The proceedings are now in their fourth year, much has changed during that period and it is only proper that Mineralogy has sought to include claims that relate to the matrix of facts as they occurred over the period. The fact that our client has made early drafts of the Fifth Amended Statement of Claim available to your clients as a courtesy evinces our client's willingness to assist your firm and clients in a positive manner. It should be clear the Fifth Statement of Claim that your clients can rely upon is the one which Mineralogy has filed in the Court and is seeking leave to amend.

...

For the Avoidance of Doubt

I refer to the Judgement [sic] of [Kenneth] Martin J on 13 December 2016 and the Affidavit of Clive Frederick Palmer sworn on 21 December 2016. Mineralogy has unequivocally withdrawn any claims that the [Agreements] have been terminated or repudiated. For the avoidance of any doubt Mineralogy advises that Mineralogy hereby unequivocally withdraws all claims that the [Agreements] have been terminated or [r]epudiated as set out in all pleadings in all actions and any proposed or foreshadowed actions between Mineralogy and your clients. Mineralogy withdraws all Termination Notices and Default Notices issued by Mineralogy to either Sino or Korean up until the date hereof.

The notices which have been withdrawn deal with matters in the past. It is important that the parties focus on the future as the [Agreements are] a long‑term agreement and each of the parties must recognise their obligations and be respectful of each other's rights under the [Agreements]. Your clients need to focus on performing the conditions of the contract so as there is no need for notices to be issued in the future. Mineralogy reserves its rights to issue further notices as is its contractual right if Mineralogy determines it is in Mineralogy's interest to do so. The Court cannot and will not rewrite the contract between the Parties.

Future Actions

Other than as set out above Mineralogy reserves all its rights. Mineralogy has narrowed its claims and is proceeding to trial on the matters that are relevant to the claims Mineralogy wishes to make. The claims are what they are and there is no utility in speculating about hypothetical claims or actions that may or may not arise in the future. Each of the parties has an obligation to act in 'Good Faith' towards each other. In line with their obligations to each other the parties need to concentrate on performing their respective obligations under the [Agreements].

Mineralogy does not consent to the orders proposed by your client. Please confirm your client will consent to the orders set out in our Chamber Summons amended to allow for a timetable in accordance with his Honour's proposed timetable. In that regard, Mineralogy attaches a new timetable for the trial dates and invites your firm to confer with Mineralogy in respect of the timetable and the matters set out in your firm's letter of 21 December 2016 and the matters advanced herein.

Please advise your firm's availability to confer on the matters set out in this letter and your firm's letter of 21 December 2016. Mineralogy can confer on 5 or 6 January 2017. (emphasis added)

1. On 9 January 2017, Allens wrote to Mineralogy noting Mineralogy's refusal to consent to the orders proposed by the CITIC defendants and stating that the CITIC defendants did not oppose Mineralogy being given leave to discontinue certain claims in CIV 1808 on the condition that Mineralogy not be permitted to re‑agitate those claims in CIV 1808 or any other proceeding. The letter attached a proposed order, described as the 'Proposed Condition Order', in terms which provided that the CITIC defendants would seek for the orders proposed by Mineralogy to be conditioned upon (in general terms):[79]

(a) Mineralogy not asserting or claiming, directly or indirectly in any proceeding, that (1) any of the Project Agreements had been terminated, (2) Sino and Korean are required to suspend or cease their operations under the Project Agreements, or (3) Sino and Korean are not entitled to exercise any of their rights under the Project Agreements;

(b) Mineralogy not acting inconsistently with being ready, willing and able to perform all of its obligations under the Project Agreements; and

(c) Mineralogy withdrawing a force majeure notice and its threats to send letters out to employees of the CITIC defendants, and submitting to the registrar of the Personal Properties Securities Register a financing change statement.

1. The Proposed Condition Order did not include any reference to the abandonment of the Clause 6.3 Claims.
2. On 12 January 2017, Mineralogy wrote to Allens in relation to Allens' letter dated 9 January 2017 and the 'Proposed Condition Order'. Amongst other things, the letter stated:[80]

Leave to amend

There is no identifiable relevant evidence which your clients would need to put on in respect of Mineralogy's application for leave to amend.

Mineralogy's application for leave to amend will be determined on whether its proposed claims are sustainable as a matter of law (which they are), not of fact. There is no evidentiary onus placed on your clients and no evidence filed by them going to matters of fact would be relevant to the question of leave to amend. Factual matters are left for the trial of this matter commencing on 14 June 2017. In any event, as is clear from the draft pleading, Mineralogy's case concerns construction of the [Agreements]; there are no areas of substantial factual dispute. (original emphasis)

Matters arising from the [Kenneth] Martin J Judgment

This aspect of the hearing concerns two matters:

(a) the second component of Mineralogy's mandatory injunction, being the payment of $59 million and ongoing payments of US$6 per DMT, and Mineralogy being ready, willing and able to perform the [Agreements]; [and]

(b) directions to the trial listed for June 2017.

...

You have raised 5 additional matters the CITIC [defendants] allege are relevant to Mineralogy demonstrating it is ready, willing and able to perform its obligations under the [Agreements] and Project Agreements:

1. Mineralogy not pursuing in the future claims withdrawn by the proposed [5FASOC];
2. Mineralogy withdrawing its threats to arrest ships used by [Sino] and [Korean] to ship iron ore concentrate; (which deals with the separate question of exports and the [Admiralty] Act)
3. Mineralogy submitted to the Registrar of the Personal Property Securities Register a financing change statement to end effective registration of the security interests with registration numbers 2016 11100029680 and 2016 11080050208;
4. Mineralogy withdrawing its Force Majeure notice dated 8 July 2015; under the State Agreement which is not the subject of [CIV 1808].
5. Making further payments subject to requirement for ready, willing and able to perform Project Agreements.

By letter dated 28 December 2016, Mineralogy has responded concerning matters 2 to 4 above. Notwithstanding Mineralogy's position in its letter dated 28 December 2016 and without prejudice to such position, by this letter, Mineralogy gives the following undertakings:

1. Mineralogy will not raise claims which Mineralogy has withdrawn by the proposed [5FASOC] against the [CITIC defendants] in [CIV 1808] or any other proceeding;
2. If the [CITIC defendants] make all payments to Mineralogy as foreshadowed in the [Kenneth] Martin J Judgment, Mineralogy will not until after final determination of [CIV 1808] or after 1 September 2017 apply to any court to arrest the [CITIC defendants'] ships.
3. If the [CITIC defendants] make all payments to Mineralogy as foreshadowed in the [Kenneth] Martin J Judgment, Mineralogy will not until after final determination of [CIV 1808] or after 1 September 2017 whichever is the earlier exercise any security over any ore mined by the [CITIC defendants] on the Mining Leases.
4. If the [CITIC defendants] comply with the terms of the [Agreements], Mineralogy will withdraw any force majeure in any agreement which relies on the [CITIC defendants'] non‑compliance with the [Agreements].

Further, Mineralogy withdraws all notices issued prior to the date hereof that require the [CITIC defendants] to vacate the Mining Leases or Project Area.

As to making the further payments subject to Mineralogy's continuing readiness, willingness and ability to perform the [Agreements] and Project Agreements, that is a matter for legal submissions. The matter is hypothetical. There is no evidentiary element to that controversy.

In view of the above, the scope for factual dispute and the necessity for your clients to file affidavit material is nearly non‑existent and there is no reason why such matters could not have been attended to in the time available if they were genuine matters.

...

Conclusion

For the reasons recorded above, we do not consider an adjournment is necessary or appropriate. Mineralogy regards your clients' actions as an abuse and breach of Good Faith.

Mineralogy will oppose any application to adjourn the hearing on 20 January 2017. We are otherwise preparing for the hearing of our chamber summons and your clients should do likewise and comply with the Orders of the Court. If your clients make any application please provide Mineralogy with adequate notice and the opportunity to appear. Please bring this letter to the attention of the Court. Mineralogy reserves its rights. (emphasis added)

1. On 12 January 2017, Mineralogy wrote to Allens stating that Mineralogy's earlier letter dated 12 January 2017 and the undertakings given, 'eliminated the need for [the CITIC defendants] to seek Orders to vacate the hearing date of the 20 January 2017 to another date'.[81]

1. On 16 January 2017, Mineralogy filed written submissions in support of its application for leave to amend the statement of claim, and opposing the CITIC defendants' application to adjourn the hearing of that matter, which had been listed for 20 January 2017. Mineralogy's submissions included:[82]
   1. By letter dated 28 December 2016, Mineralogy responded concerning matters (b) ‑ (d) above. Notwithstanding Mineralogy's position in its letter dated 28 December 2016 without prejudice to such position, Mineralogy gave the following undertakings:

(a) Mineralogy will not raise claims which Mineralogy has withdrawn by the proposed [5FASOC] against the [CITIC defendants] in [CIV 1808] or any other proceeding[.]

1. Further, Mineralogy withdraws all notices issued prior to the date hereof that require the [CITIC defendants] to vacate the Mining Leases or Project Area.
2. As a consequence, no evidence is necessary to be adduced by the [CITIC defendants].
3. As to making the further payments subject to Mineralogy's continuing readiness, willingness and ability to perform the [Agreements] and Project Agreements, that is a matter for legal submissions. The matter is hypothetical. There is no evidentiary element to that matter.
4. In view of the above, the scope for factual dispute and the necessity for the [CITIC defendants] to file affidavit material is nearly non‑existent and there was no plausible reason why such matters could not have been attended to in the time available, if they were genuine matters. (emphasis added)
5. On 16 January 2017, Mineralogy filed a further affidavit of Mr Palmer, affirmed on 16 January 2017, which included:[83]
   1. On 21 December 2016, Mineralogy filed its chamber summons for leave to amend other orders, affidavit in support and outline of submissions.
   2. On 29 December 2016, Mineralogy filed a minute of proposed orders.
   3. On 9 January 2017, [Allens] indicated their clients were intending to appeal [Mineralogy [No 13]) and sought Mineralogy's consent to a stay of the orders requiring payment ...
   4. On 11 January 2017, [Allens] wrote to Mineralogy indicating that their clients were unable to put on all the evidence required for the hearing on 20 January 2017 by 13 January 2017, and sought an extension of 21 days ...
   5. On 12 January 2017, Mineralogy responded to [Allens'] letter of 11 and of 10 January 2017 [sic] recording that the scope of evidential material required to be filed by the [CITIC defendants] appeared minimal and the adjournment would be opposed ...
   6. On 12 January 2017, [Allens] declined to provide substantive reasons to Mineralogy's letter of 12 January 2017 and indicated they would seek the adjournment ...
   7. On 13 January 2017, Mineralogy responded to the letter dated 12 January 2017 from [Allens].
   8. As at the time of affirming this affidavit, a substantive response has not been received to Mineralogy's letters of 12 or 13 January 2017.

1. By letter dated 21 December 2016, [Allens] wrote to Mineralogy recording three matters the [CITIC defendants] alleged were relevant to the requirement of the Court that Mineralogy be ready, willing and able to perform its obligations under the [Agreements] ...
2. By letter dated 28 December 2016, Mineralogy responded to the [CITIC defendants'] letter dated 21 December 2016 ...
3. By letter dated 9 January 2017, [Allens] sought to impose further conditions in respect of a mandatory injunction ...
4. By its letter dated 12 January 2017 (referred to above), [Mineralogy] gave the following undertakings:

(a) [Mineralogy] will not raise claims which Mineralogy has withdrawn by the proposed [5FASOC] against the [CITIC defendants] in [CIV 1808] or any other proceeding[.] (emphasis added)

1. On 17 January 2017, the CITIC defendants filed an outline of submissions, which included the statement that 'it is important to confirm that the claims are truly being abandoned and that Mineralogy is not reserving to itself the opportunity to resurrect the claims in the future if it considers that suits it to do so'. The submissions also included the following:[84]

Further, having regard to the history of the proceeding, a condition should also be imposed that Mineralogy not be permitted to raise these discontinued claims again in this (or any other) proceeding. A line should be drawn making clear the case that the CITIC [defendants] must meet at trial, and precluding Mineralogy from opportunistically abandoning these claims now in an attempt to obtain the orders for further interlocutory payments which it seeks and then endeavouring to re‑introduce them subsequently. There is continuing correspondence between the parties about this aspect, and this will be addressed at the hearing on 20 January 2017.

...

Further, as noted earlier, a condition should also be imposed that Mineralogy not be permitted to raise the discontinued claims again in this (or any other) proceeding. As noted earlier, correspondence between the parties is continuing in relation to this matter. (emphasis added) (footnotes omitted)

1. On 19 January 2017, Allens wrote to Mineralogy in response to Mineralogy's letter of 12 January 2017 and the undertakings contained in it. The letter of 19 January 2017 dealt separately with undertaking 1, on the one hand, and the balance of the undertakings. It described undertaking 1 as a proposed finality order and the other undertakings as concerning Mineralogy's readiness, willingness and ability to perform its obligations.[85]
2. The 19 January 2017 letter stated, in relation to undertaking 1, that the undertaking was 'helpful and ought to result in a narrowing of the areas of dispute between the parties'. The letter asked whether Mineralogy would provide a similar undertaking to the court and whether Mineralogy would consent to an order 'to the effect that any grant of leave to amend [the statement of claim] will be conditional upon Mineralogy undertaking to the Court and to the [CITIC defendants] not to raise the claims which it has withdrawn by [the proposed 5FASOC] in [CIV 1808] or any other proceeding'.
3. The letter then set out various reasons why the balance of the undertakings were said to be unsatisfactory.

Materials before Kenneth Martin J in CIV 1808 on 20 January 2017

1. On 19 January 2017, Mineralogy filed a document in CIV 1808 titled 'List of material to be read at hearing on 20 January 2017', which relevantly included (inter alia) the following:

(a) The affidavit of Mr Palmer affirmed and filed on 21 December 2016;

(b) The affidavit of Mr Palmer affirmed and filed on 16 January 2017;

(c) Affidavit of Kane Christopher Jones affirmed and filed on 17 January 2017 (as folio document 428);[86]

(d) Affidavit of Ian Peter Scott O'Donahoo sworn 13 January 2017 and filed on 18 January 2017; and

(e) Affidavit of Ian Peter Scott O'Donahoo sworn 17 January 2017 in response to Plaintiff's chamber summons dated 21 December 2016 and filed on 19 January 2017.

1. In addition, the letter from Allens to Mineralogy dated 19 January 2017 (referred to above) was handed up in court during the hearing on 20 January 2017.

1. At the hearing before Kenneth Martin J on 20 January 2017, following an exchange with counsel for Mineralogy, his Honour said:[87]

[THE JUDGE]: I would be inclined, subject to hearing from counsel, to grant leave to amend in respect of that current [4FASOC] by way of excision only so that the content of the pleading for the purposes of a trial was basically paragraphs 1 to 45 and paragraph 135 ... In the context of that ... there would need to be an excision of paragraphs in the prayers [for relief].

...

Now, if you're making application for leave to amend by way of deletion only in those respects, I would indicate my prima facie position that I would allow an amendment in those terms, subject to reserving costs. And with that in mind, a - proceeding along the lines of a trial in June in respect of those issues would seem, to me, to be feasible, subject to hearing Mr Scerri. But there's no obligation on the plaintiff to seek leave to amend in those terms.

It's entirely a matter for the plaintiff. So if the plaintiff, for instance, wishes to press for amendments in terms of the minute as handed up this morning, I will certainly hear that. But I indicate my prima facie disinclination to augment the scope of the dispute for the purposes of a June hearing beyond [Royalty B] as a matter of interpretation and then the expert evidence associated with that which seem, to me, together to be more than enough to consume two weeks. (emphasis added)

1. There was then a short adjournment, after which the following exchange occurred:[88]

[COUNSEL FOR MINERALOGY]: Can I thank your Honour for the indulgence of that adjournment? We have been able to take some instructions and we are content to proceed with your Honour's proposal or your Honour's suggestion. Two complications: one is the one that I mentioned before the adjournment, which is that there may be some minor amendments to update the date to which the royalty (indistinct) was claimed, because, in the current pleading, it ends in October 2014.

[THE JUDGE]: Yes.

[COUNSEL FOR MINERALOGY]: And we wanted to claim that up to the date and the second is this, your Honour. Your Honour mentioned that paragraph 135 might remain in the claim, which is the restitutionary claim, but we would anticipate that it wouldn't be the subject of the hearing in June because it is claimed in the alternative.

[THE JUDGE]: Yes.

[COUNSEL FOR MINERALOGY]: We would wish to leave the rectification claim in paragraph 134 also in the pleading, but similarly have it - - -

[THE JUDGE]: Not proceed.

[COUNSEL FOR MINERALOGY]: - - - not the subject of the hearing in June.

[THE JUDGE]: Yes. I understand. All right. Well, I will hear from Mr Scerri about the viability of that in due course, but if we got to a position at the end of the day where there was leave to amend, essentially, by way of excision, no augmentation, and further orders that say there be a trial of all issues in the action, save for restitution and rectification and proceed on that basis, see where that takes us. But that seems to me to be in accord with the sentiment that I was expressing in that paragraph at the end of the reasons. (emphasis added)

1. In opening his response, counsel for the CITIC defendants observed that 'obviously we don't object to things being taken out', then referred to the number of different positions taken by Mineralogy in its various pleadings.[89] Shortly thereafter, the exchange continued:[90]

[COUNSEL FOR THE CITIC DEFENDANTS]: ... [W]e can say that we will think about whether the restitution issue and the frustration issue are necessary. The reason I say that, your Honour, is restitution had two bases. One was termination and one was frustration. Termination seems to have gone, so we want to think about whether that should even be in the pleadings, whether that we would even need that case.

[THE JUDGE]: I think your frustration plea as I remember it was in the alternative on the basis - - -

[COUNSEL FOR THE CITIC DEFENDANTS]: And it was conditional on - - -

[THE JUDGE]: Yes. Quite.

[COUNSEL FOR THE CITIC DEFENDANTS]: Conditional on if the court finds we're right about the benchmark, but that there's no replacement for it such as fair and reasonable royalty ...

But can I just say a couple of things ... and this ... appears from our submissions, is that if these things are being dropped, we want them to be dropped properly and that is - that's why we've sought undertakings and conditions to the leave so that if it goes badly for our friends, they don't raise them next week or some other time.

Now, they said in correspondence they would undertake not to raise these matters in this proceeding or any other proceeding and we have written to them about that only a couple of days explaining why that's not a satisfactory formula and there has been correspondence about that. Now, I don't think we've got a response to our latest letter. There were some gratuitous comments in the reply submissions of yesterday that we concealed the point that they had offered the undertaking. What we had actually done was said we don't think those undertakings are satisfactory and we will write to you about it, which we did. So - - -

[THE JUDGE]: Well, I read your submissions and I read your footnotes - - -

[COUNSEL FOR THE CITIC DEFENDANTS]: Thank you, your Honour, and - but - I don't think your Honour has seen the letter and, as I said, we haven't got a reply to that and we will need to deal with that at some stage. So what's important to us is if these things are finally going to be abandoned - - -

[THE JUDGE]: Well, let's just explore that hypothetically. Let's say that leave to amend in the excision terms is granted. Those paragraphs disappear, but then remanifest in some action, some fresh action or something like that. Then the first thing that would happen to them would be there would be an attack on the basis that they're an abuse of process.

[COUNSEL FOR THE CITIC DEFENDANTS]: Yes. That's true.

[THE JUDGE]: So it seems - I mean, I - are we dancing at shadows here?

[COUNSEL FOR THE CITIC DEFENDANTS]: Well, it's just that I - bitter experience. Your Honour has read Mr O'Donahoo's affidavit of 17 January. The bitter experience is things are dropped, then they come back, then they're dropped and they come back. So - and no disrespect to Mr Bradley or any of the other counsel. I think we've had seven silks appear for Mineralogy in this case and they often take different views. We now have a pleading where no silk has put in - no counsel is named to it. (emphasis added)

1. Counsel for the CITIC defendants then turned to the question of whether Mineralogy was ready, willing and able, and to Mineralogy's withdrawal of claims that the Agreements were terminated. The judge observed that the point counsel had been making about ensuring things were 'stake through the heart dead' applied to the issue of ready, willing and able 'as well'.[91]
2. In the course of discussions concerning the likely length of the trial, counsel for the CITIC defendants referred to the propensity of Mineralogy to change its position in pleadings. Counsel then said as follows:[92]

[COUNSEL FOR THE CITIC DEFENDANTS]: And we accept, your Honour, with the greatest respect, your Honour's point that if they do raise it again, they will be met with the same point, which is it's an abuse of process. If they try and raise it after the conclusion of this case, there would be an Anshun issue. And we thought your Honour might say that. We tried to cover that.

1. The following exchange then occurred with counsel for Mineralogy in reply:[93]

[COUNSEL FOR MINERALOGY]: Your Honour, there are a few minutes to deal with and I will attempt to deal with them as quickly as possible. Can I say as to the concerns that our learned friends have expressed about ready, willing and able - and there seem to be in the way they were expressed, two different aspects. One was about whether it was sufficient that matters not be persisted with in the pleading or whether something else should be done because - - -

[THE JUDGE]: Well, I think, as I understood it, it's - the fact that you might delete something by way of amendment with leave is not good enough to satisfy them, given ancient history in this action, that it might not reappear at some future point and they're looking to more in terms of a commitment than has been said to date, which I think is something along the lines of, provided you comply with all your terms and conditions under the (indistinct) then we won't do it, which seems a bit tendentious in terms of satisfying them about whether they're ever going to come back or not.

[COUNSEL FOR MINERALOGY]: It is an odd position for the parties to be in in that our complaint is what we say is a very serious breach of a material term of the [Agreements]. And in response, we're told we need to show some kind of evidence that we will never ever breach any term of the [Agreements] and a number of other agreements. But leaving all that to one side, we would say in terms of that issue about raising matters in court, your Honour ought to be content that, in this proceeding because of orders made and because, I think, of the practice direction, there is control over amendments that might be sought in that we're not at liberty to make amendments without leave.

[THE JUDGE]: Yes.

[COUNSEL FOR MINERALOGY]: That's in the first instance. And then we would say as to the matters that have been specifically raised with us in correspondence, we have gone to great lengths to provide undertakings to address those concerns, even though we would say they are matters that are really outside the scope of the [Agreements]. And frankly, your Honour, I think it was that the expression that my learned friend, [counsel for the CITIC defendants], used was the ready, willing and able formula that your Honour adopted.

That formula was to do with the [Agreements] and not to do with this other - any other agreement or any other document or arrangement. But notwithstanding that, we have - we've dealt with those matters. A convenient place to find them, your Honour, is in the affidavit of Mr Palmer of ... 16 January ... Can I ask your Honour to go to [par 49 of that affidavit].

...

So in that paragraph, Mr Palmer give [sic] a summary of what's - of the undertakings that have been proffered. And then the - a letter in which they were proffered is ... a letter of 12 January 2017.

...

And then, your Honour, the relevant page is page 4 ... Can I ask [your Honour] to note, 'by this letter, [Mineralogy] gives the following undertakings' and they're numbered there one to four. (emphasis added)

1. In the concluding part of the hearing, the parties proposed different trial dates and advanced competing programming orders conducive to their respective proposed trial dates.
2. The judge reserved his decision, indicating that he wished to consider further the question of the appropriate timetable and trial dates. The judge indicated that, while he would not grant leave to amend in terms of any of the existing minutes of proposed pleading, as he had already indicated, he would grant leave for Mineralogy to amend the statement of claim 'by way of excision' to the (then current) 4FASOC in the respects identified during the course of oral argument.[94]

1. On 27 January 2017, the judge published his reasons in Mineralogy [No 14]. In those reasons, so far as is presently material, the judge:[95]
   1. Granted leave to amend the 4FASOC, broadly speaking, only by way of deletions from the 53‑page content of the then current statement of claim.
   2. Concluded that it was realistic to program the matter for a three‑week trial commencing in the middle of June 2017.
   3. Dealt with the issue as to appropriate orders for payments. It is not necessary to detail his Honour's reasoning and conclusion in that regard.
2. On 2 February 2017, Mineralogy filed a minute of proposed orders pursuant to Mineralogy [No 14]. Mineralogy sought (amongst other things) (1) an order to file and serve the 5FASOC by 'excising pleas other than pars 1 ‑ 45 and pars 133 and 134 and pars 1, 5, 6 and pars 8 ‑ 10 of its existing prayer for relief as regards [Royalty B]', (2) related directions for a trial, and (3) a proposed order for mediation. The judge made orders effectively in the terms sought on 23 February 2017.

1. CIV 1808 went to trial in June 2017. As noted earlier, the judge upheld Mineralogy's claims and published reasons to that effect in Mineralogy [No 16] in November 2017.
2. Sino and Korean were each found to be liable to Mineralogy for unpaid amounts of Royalty B under cl 8.2 of the Agreements. Further, CITIC was found to be liable in respect of such amounts as surety for Sino and Korean under cl 11.5 of the FC Deed.

Mineralogy's appeal The question of leave to appeal

1. Mineralogy contended that the judge's orders permanently staying the proceedings in CIV 3129 were interlocutory.[96]
2. The CITIC parties contended that the orders were final.[97]

1. Mineralogy submitted that the determination of whether an abuse of process has occurred is an evaluative decision to which the principles for appellate review in House v The King[98] apply.[99] The CITIC parties also accepted the application of those principles to appellate intervention in this context.[100] We proceed on this basis, which is supported by what is said in Batistatos v Roads and Traffic Authority of New South Wales.[101] In any event, the standard of appellate review makes no difference to our conclusion because, for the reasons below, applying the correctness standard, we are not persuaded that the primary judge erred in finding abuse of process.

1. Broadly, there are two issues raised by Mineralogy in its grounds of appeal in CACV 27 of 2020, being (1) alleged error in finding an abuse of process, and (2) alleged error in finding an Anshun estoppel or, alternatively, an alleged absence of reasons in finding an Anshun estoppel.[102]

1. Ground 1 alleges that the judge erred (at [183] ‑ [212] of the primary decision) in failing to take into account the absence of vexation and unjustifiable oppression to the CITIC parties in the bringing of the Clause 6.3 Claims in CIV 3129.
2. Ground 2 alleges that the judge applied the wrong test in treating as determinative, or as substantially determinative, the conclusion that Mineralogy could have expressly sought to preserve the Clause 6.3 Claims when they were excised from the 4FASOC in CIV 1808.
3. Ground 3 alleges that the judge erred (at [201] and [204] of the primary decision) in finding that in January 2017 Mineralogy 'removed for all time' the Clause 6.3 Claims, or alternatively, that it conveyed the impression that it was doing so.
4. Ground 4 alleges, in effect, that by reason of the matters alleged in grounds 1 ‑ 3, it was not open on the facts as found for the judge (at [209] and [213] of the primary decision) to characterise the circumstances in which Mineralogy brought CIV 3129 as constituting an abuse of process.[103]

1. Ground 5 alleges that it was not open on the facts as found for the judge to conclude (at [213] of the primary decision) that an Anshun estoppel arose, thereby precluding recovery by Mineralogy in CIV 3129 of the Clause 6.3 Claims.
2. Ground 6 alleges that the judge failed to give adequate reasons for the conclusion (at [213] of the primary decision) that an Anshun estoppel had been established.

1. Mineralogy submitted, in effect, that the judge should have found that, in the absence of vexation and unjustifiable oppression inflicted on the CITIC parties, the action in CIV 3129 could not be labelled as an abuse of process solely on the basis that Mineralogy could have sought, in CIV 1808, to expressly preserve the ability to bring the Clause 6.3 Claims later and did not do so.[104]
2. Mineralogy submitted that the following factors, individually and cumulatively, militate in favour of a conclusion that there was no 'vexation' or 'undue oppression' (as those concepts are understood in UBS), to the CITIC parties in Mineralogy bringing the Clause 6.3 Claims in CIV 3129:[105]
   1. The Clause 6.3 Claims have never been determined on their merits.
   2. It was not suggested before the judge, and it cannot be suggested, that delay in bringing the Clause 6.3 Claims means that a fair trial cannot be held or that the CITIC parties are unfairly prejudiced by being required to defend the Clause 6.3 Claims on their merits.
   3. It was not suggested before the judge, and it cannot be suggested, that if the Clause 6.3 Claims had not been withdrawn, the CITIC parties would have acted differently in some specific or material way, such that it is now unfair for them to be required to defend the claims.
   4. On each occasion on which Mineralogy previously withdrew the Clause 6.3 Claims, it did so before pleadings had finally closed.
   5. The CITIC parties have not been required, in any of the previous proceedings, to file any evidence addressed to the Clause 6.3 Claims or their defence of those claims.
   6. In substance, the CITIC parties must simply do now what they would have had to in CIV 1808 if the Clause 6.3 Claims had not been withdrawn. Any wasted costs or duplication of work is inherently likely to be limited.
   7. The decision to remove the Clause 6.3 Claims from CIV 1808 was reasonable. The CITIC defendants had pleaded a vast defence to the Clause 6.3 Claims in CIV 1808, which 'raised a substantial factual controversy spanning 150 pages of pleading' and that on any reasonable estimate would have added weeks to the trial.
   8. The court was, quite properly, actively encouraging the parties to narrow the scope of the issues in dispute to enable an early determination of the critical issue regarding Royalty B.
   9. Narrowing the issues in this way was consistent with the objects of case management in O 1, r 4A and r 4B of the RSC.
   10. The Clause 6.3 Claims were fundamentally different from the claims that the Agreements had been repudiated or terminated and any other claims that could be said to be contrary to accepting an ongoing performance of the Agreements.
   11. The Clause 6.3 Claims were not factually the one dispute with the Royalty B claim. The proper construction of Royalty B was one small (and logically anterior) element in a larger and more factually complex dispute in respect of the obligation to pay the royalty under Clause 6.3(b).
3. Mineralogy submitted that, while accepting that the doctrine of abuse of process is broad, and that an abuse of process argument may not be defeated merely by pointing to factual distinctions, nevertheless important factual distinctions may be drawn between UBS and this case.[106] Mineralogy submitted that in UBS, an individual, Mr Tyne, caused his company to prosecute the claim to finality, and when that claim was permanently stayed, he recommenced what was in substance the same claim, but through a different entity (the Trust). The loss claimed by the Trust was the same loss. The explanation given by Mr Tyne for this conduct, namely, that the concurrent prosecution of two claims would be more burdensome and expensive, was not considered to be reasonable because it failed to take account of the public interest in the efficient administration of justice. Hiving off the Trust's claim would lead to duplication of resources and increased costs, and would delay the resolution of the dispute, that is, the dispute in respect of the same claim and loss.[107] Mineralogy submitted that none of these considerations apply in the present case, and that there was no consideration of those matters in the judge's final evaluation and conclusion other than by passing reference.[108]

1. The CITIC parties submitted that Mineralogy's submissions distort the reasoning applied by the judge because they overlooked the relevant test. The CITIC parties submitted that the relevant test derives from UBS:[109]

Either of two conditions enlivens the power: where the use of the court's procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute.

1. The CITIC parties submitted that satisfaction of either condition is sufficient to amount to an abuse of process,[110] and that Mineralogy's claim in CIV 3129 was an abuse of process both because it was unduly oppressive and because it would have brought the administration of justice into disrepute.[111] Therefore, the CITIC parties contended, even if Mineralogy were to succeed on ground 1, the appeal should still fail because allowing Mineralogy's claim to proceed would bring the administration of justice into disrepute.[112] Whether the CITIC parties would have suffered vexation or undue oppression is not determinative.[113]
2. The CITIC parties nevertheless contended that the judge explicitly found, correctly for the reasons he gave,[114] that to allow Mineralogy to agitate the Clause 6.3 Claims in CIV 3129 would lead to undue oppression.[115] The CITIC parties submitted that none of the matters identified by Mineralogy in points 1 ‑ 6 of [125] above, considered individually or cumulatively, are capable of conclusively establishing whether or not a defendant would be vexed or unduly oppressed by the pursuit of the impugned claim. The CITIC parties submitted, with reference t[116]BS, that:116
   1. It is not necessary for proceedings in respect of the same issue to have been concluded by a judgment on the merits. Serial proceedings discontinued prior to judgment would be an obvious example of an abuse of process.[117]
   2. Whether claims are arguable and whether a party has been required to defend them cannot determine whether the proceeding is unjustifiably oppressive or would bring the administration of justice into disrepute.[118]
   3. To insist, for example, on 'inexcusable delay' as a precondition of the exercise of the power to stay proceedings as an abuse of process, is to fail to appreciate that any substantial delay is apt to occasion an increase in the cost of justice and a decrease in the quality of justice.[119]
   4. In UBS, the unjustifiable oppression to which UBS would have been subjected if the Trust's claims had been permitted to proceed was found not only in the significant delay in the resolution of the dispute and the inevitability of increased costs to UBS. The court found that at its core was the vexation of being required to deal again with claims that should have been resolved in the proceedings in the Supreme Court of New South Wales. The fact that UBS had not been required to admit or defend the Trust's claim did not lessen that vexation.[120]
3. The CITIC parties contended that the claim should have been brought (as it was originally), and remained, in CIV 1808. That is implicit in the judge's finding that, in the circumstances that existed on 20 January 2017, unless explicit case management orders 'parking' the Clause 6.3 Claims were sought, the claims were to be treated as permanently abandoned.[121]
4. The CITIC parties submitted that Mineralogy's contentions in points 7 ‑ 11 of [125] above also do not assist. That is because, having given an undertaking and assurances that the claim was abandoned and would not be resurrected in order to obtain the orders which Mineralogy sought, Mineralogy's removal of the claim for tactical reasons was the antithesis of a reasonable decision. That is so even where the CITIC defendants 'had pleaded a vast defence to the [Clause 6.3 Claims] in CIV[122]1808'.122
5. The CITIC parties contended that there were parallels between UBS and the circumstances in January 2017 in this regard. Mr Tyne had given the court the impression that the Trust's claims were being abandoned, as leave to amend would enable UBS 'to see precisely what the issues are that we wish to litigate', and the judge relied upon that in granting leave without further formality. However, '[c]ontrary to the way the matter was put to Ward J ... the issues that the Tyne-related parties wished to litigate against UBS always included the Trust's claims'. The explanation offered was therefore inadequate, and it was incumbent on Mr Tyne to seek appropriate case management orders if the Trust's claims were in fact to be pursued at a later date.[123]
6. The CITIC parties submitted that it is untenable for Mineralogy to contend that its decision to remove the Clause 6.3 Claims was consistent with the case management principles in O 1 r 4A and r 4B of the RSC, or with the court's encouragement to narrow the issues in dispute. Seeking orders 'parking' the Clause 6.3 Claims would have been capable of achieving the same expedited timetable, without being inconsistent with explicit undertakings and assurances upon which Mineralogy relied.[124]
7. The CITIC parties contended that, whatever the factual degree of overlap between the Royalty B claim and the Clause 6.3 Claims, this could not alter the unreasonableness of the course which Mineralogy adopted.[125]
8. The CITIC parties submitted that the Clause 6.3 Claims and the Royalty B claim arose out of the same substratum of facts, being the project given effect to by the Agreements (amongst other agreements). Further, the Clause 6.3 Claims were conceptually tied to the level of royalty payment determined by the proper construction of cl 8.2 of the Agreements, which was the central subject matter of the Royalty B claim. Thus, the CITIC parties contended that the circumstances were such that it was apt to keep the Royalty B claim and the Clause 6.3 Claims together in the same proceeding and to have them determined, or to make case management orders and determine them in sequence.[126]

1. Mineralogy submitted that the judge erroneously treated the lack of preservation of the Clause 6.3 Claims 'as an absolute counterpoint to the absence of vexation and unjustifiable oppression to the [CITIC parties]'. In this way, the judge treated as determinative, or as substantially determinative, the conclusion that Mineralogy could have expressly sought to preserve the Clause 6.3 Claims when they were excised from its 4FASOC in CIV 1808.[127]
2. Mineralogy submitted, in effect, that at [68(r)] of the primary decision, the judge erroneously relied on a passage from the judgment of Gageler J in UBS to the effect that if the timely and cost-efficient resolution of the overall dispute necessitated one of the claims in that case being pursued in advance of the other, 'that could have been achieved by appropriate case management orders which could have resulted in the trustee being bound by findings of fact and determinations of law common to both sets of claims'.[128] Mineralogy submitted that Gageler J's observations were concerned with the particular facts of the case before him, in which case management orders would have been necessary to ensure that the parties would be bound by findings of fact and law, so that the court would not be burdened by the duplication of resources and increased costs in the later claim for the same loss. Mineralogy submitted that this did not set out a principle of general application.[129]
3. Mineralogy contended that, in contrast with the position in UBS, the dispute between the parties in CIV 1808 was in respect of the proper construction of Royalty B. In any later proceeding for the Clause 6.3 Claims, both Mineralogy and the CITIC parties would have been bound by findings of fact and law with respect to the determination of the proper construction of Royalty B. Therefore, the case management concerns raised in UBS had no application in the circumstances of this case.[130]

1. The CITIC parties submitted, in effect, that the issue raised by Mineralogy in ground 2 mischaracterises what the judge did. The CITIC parties contended that the judge conducted an analysis of all the circumstances and found, correctly, that it was incumbent on Mineralogy to be upfront and expressly seek to 'park' the Clause 6.3 Claims if it wished to depart from its undertaking and assurances.[131]
2. The CITIC parties contended that Mineralogy's submissions omit reference to Gageler J's consideration of Johnson v Gore Wood & Co.[132] At [76], his Honour said the following:[133]

Although the possibility of the trustee of the Trust pursuing the claims of the Trust in later proceedings remained legally open once the trustee had withdrawn from the SCNSW proceedings, there was no intimation to UBS that the trustee was likely to do so. In contrast to the circumstances in Johnson, this is not a case in which earlier proceedings were brought to completion against the background of a communicated likelihood of later proceedings being commenced.

1. The CITIC parties contended that, in UBS, Gageler J and the plurality regarded the failure to seek case management orders as giving rise to an abuse of process because it occurred in the context of a lack of transparency.[134] Accordingly, the CITIC parties submitted that the failure by a party to be upfront about their intentions concerning an abandoned claim can be an important factor in the finding of an abuse of process.[135]

1. Mineralogy contended, in effect, that the facts do not support a conclusion that in excising the Clause 6.3 Claims from CIV 1808, Mineralogy had 'removed [such claims] for all time', or alternatively conveyed the impression that it was doing so.[136]
2. Mineralogy submitted that the giving or offering of the undertaking by Mineralogy had little impact upon the CITIC defendants' opposition to leave being granted to rely on the 5FASOC or the court's decision to grant leave to rely on the 5FASOC.[137]
3. Mineralogy submitted that, at the hearing on 20 January 2017, it was clear that the CITIC defendants had rejected the undertaking as unsatisfactory, and were actively seeking conditions on the grant of leave, which Mineralogy opposed. That was the 'position as joined between the parties, and in that respect, the provision of the earlier undertaking, at least as between them, had been overtaken'.[138] The undertaking was properly seen as a proposal that was never adopted.[139]
4. Mineralogy referred to the 'dancing at shadows' exchange between the judge and senior counsel for the CITIC defendants in CIV 1808, and contended that this showed that the court and the parties were alive to the risk that there may be a later proceeding. This exchange did not objectively evidence a belief held by the court that the excised claims were being removed for all time, nor did it demonstrate that Mineralogy promoted such a view. Instead, Mineralogy submitted, it shows that the court, quite properly, was not closing that argument or seeking to make any prediction about how it might be determined, or to take any step to prevent a claim later being made (ie, by granting leave on the conditions sought by the CITIC defendants).[140]
5. Mineralogy submitted that a conclusion that the excised claims were being removed once and for all cannot be drawn from the fact that the conditions of the grant of leave proposed by the CITIC defendants were not imposed because they were considered unnecessary.[141]
6. Further, Mineralogy submitted that weight could not be placed on the fact that, in his Honour's reasons for granting leave to allow Mineralogy to rely on the 5FASOC in Mineralogy [No 14], the judge noted at [50(d)] that the undertakings and assurances that had been provided in correspondence from Mineralogy were 'another positive factor' in determining whether Mineralogy was ready, willing and able to perform its obligations under the Agreements. In that regard, Mineralogy contended that, of the four additional undertakings given by Mineralogy in its letter dated 12 January 2017, only three objectively related to whether Mineralogy was ready, willing and able to perform its obligations. The undertaking with respect to the Clause 6.3 Claims did not. Therefore, Mineralogy submitted that the judge was wrong to conclude (at [201] of the primary decision) that the excisions on 'a once and for all basis' provided the rationale for the reference at [50(d)] of his Honour's reasons in Mineralogy [No 14].[142]

1. The CITIC parties submitted that the undertaking was in the nature of a representation as to Mineralogy's present and future position, upon which the CITIC defendants and the court were entitled to act. Mineralogy gave the undertaking unconditionally, and repeatedly relied upon it in correspondence, submissions and affidavits in the lead up to the hearing, and at the hearing itself. The CITIC parties' contended that they did not reject the undertaking, but rather, the matters they sought were in addition to the undertaking. Further, the CITIC defendants' submissions in CIV 1808 were premised upon the undertaking having been given, although they sought more.[143]
2. The CITIC parties submitted that it might be inferred that the court was less inclined to impose a condition on leave, or to require an undertaking to be given to the court (both being matters which the CITIC defendants had sought), in circumstances where the court was aware that Mineralogy had already given an undertaking to the CITIC defendants. Thus, at the time, none of Mineralogy, the CITIC defendants or the court treated the undertaking as having been overtaken by events. The CITIC parties submitted that Mineralogy should not be permitted to resile from that position now.[144]
3. The CITIC parties contended that the exchange in CIV 1808 relied upon by Mineralogy, between the judge and counsel at the hearing on 20 January 2017, demonstrates that, in the circumstances, it was the judge's view that the CITIC defendants did not require the protection of conditions being placed on a grant of leave.[145]
4. The CITIC parties submitted that the judge had explicitly stated that one reason why he was satisfied that Mineralogy was ready, willing and able to perform its obligations under the Agreements was the undertakings and assurances provided by Mineralogy.[146] At the time, Mineralogy itself treated the undertaking as relevant to that issue, including in correspondence, affidavits and written and oral submissions. The CITIC parties therefore submitted that Mineralogy ought not to be permitted to resile from its previous position in relation to this issue.[147]

1. By ground 4, Mineralogy contended, in effect, that in light of the matters raised in grounds 1, 2 and 3, it was not open to the judge on the facts as found to characterise the circumstances (at [209] and [213] of the primary decision) as constituting an abuse of process.[148]

1. The CITIC parties contended that this ground should be rejected for the reasons it gives in relation to grounds 1, 2 and 3.[149]

1. In ground 5, Mineralogy contended, in effect, that the judge erred in two respects:
   1. his Honour did not identify the test for establishing an Anshun estoppel; and
   2. his Honour did not provide any analysis, as distinct from the reasoning in respect of the abuse of process finding, which was directed at determining whether the test for an Anshun estoppel had been satisfied, and thereby failed to give adequate reasons for the conclusion that an Anshun estoppel had been established.[150]
2. Mineralogy contended that the finding of an Anshun estoppel was unsustainable on the facts as found. Mineralogy submitted that it could not be said with any force that the Clause 6.3 Claims were so relevant to the subject matter of the Royalty B claim (which was finally determined in CIV 1808) that it was unreasonable not to prosecute the Clause 6.3 Claims through to completion in CIV 1808.[151]

Grounds 5 and 6 - the CITIC parties' submissions

1. The CITIC parties contended that there is 'significant overlap' between abuse of process and Anshun estoppel, and submitted that the judge adopted the statement of the principles in UBS which was also relevant to Anshun estoppel.[152] The parties proceeded in a manner consistent with the authoritative principles concerning the overlap between abuse of process and Anshun estoppel. The CITIC parties submitted that, in keeping with these principles and the manner in which the parties addressed the issue at trial, the judge then drew on the factors that led to a finding of abuse of process to find that an Anshun estoppel also arose. Therefore, the CITIC parties submitted, it was clearly open on the facts as found for the judge to reach that conclusion.[153]
2. The CITIC parties contended that it was open to the judge to conclude that an Anshun estoppel arose on the facts because the Clause 6.3 Claims were so relevant to the subject matter of CIV 1808 that it was unreasonable not to have brought them in CIV 1808, so as to have allowed all relevant issues to have been determined in the one proceeding. The CITIC parties submitted that the unreasonableness also arose from:[154]
   1. the serial discontinuances of the claims;
   2. Mineralogy's abandonment of the claims and its undertaking not to bring them again in the future; and
   3. the fact that other claims were 'parked' and retained to be determined in other proceedings.
3. In respect of adequacy of reasons, the CITIC parties submitted that the reasons demonstrate the intellectual path by which the judge concluded that Mineralogy's claim gave rise to an Anshun estoppel. Further, the CITIC parties submitted that the principles to be applied are identified as those regarding Anshun estoppel referred to in UBS, and the fact that they were not reproduced in the primary decision is of no moment.[155]

1. In Dow Jones & Co Inc v Gutnick,[156] Gaudron J observed:

The purpose of judicial power is the final determination of justiciable controversies and such controversies are not finally determined unless all issues involved in a controversy are submitted for determination or, if they are not, are treated as no longer in issue.

1. A plaintiff who has regularly invoked the jurisdiction of the court has a prima facie right to insist upon its exercise.[157] Nevertheless, the common law 'favours the resolution of particular disputes between parties by the bringing of a single action rather than successive proceedings', and the preclusionary principles (including res judicata, issue estoppel and Anshun estoppel) all find their roots in that policy.[158]
2. The power of a superior court to stay its own proceedings as an abuse of process is a power to protect the integrity of its own processes. The power is, in that limited respect and to that limited extent, a power to safeguard the administration of justice.[159] The courts must be astute to protect both litigants and the system of justice itself against abuse of process.[160] However, the power to order a stay of proceedings on the ground that they are an abuse of process is to be exercised with caution, and only in the most exceptional or extreme cases.[161]
3. The doctrine of abuse of process is informed by considerations which bear upon public confidence in the administration of justice,[162] including considerations of finality and fairness.[163] The varied circumstances in which the use of the court's processes will amount to an abuse, notwithstanding that the use is consistent with the literal application of its rules, do not lend themselves to exhaustive statement.[164] Either of two conditions enlivens the power: (1) where the use of the court's procedures occasions unjustifiable oppression to a party, or (2) where the use serves to bring the administration of justice into disrepute.[165]
4. Whether conduct is properly characterised as an abuse of process of the court requires consideration of all the circumstances.[166] In UBS,[167] the plurality cited with approval Lord Bingham of Cornhill's explanation that the court is required to make:[168]

a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not.

1. What is decisive in determining the question of abuse of process is the objective effect of the litigious conduct or continuation of the action said to constitute the abuse, and there is no requirement that this involve any moral delinquency on the part of the party undertaking the impugned conduct or continuing the action.[169] The remedy of a stay of proceedings which are an abuse of process is not 'concerned ... with the punishment of the miscreant'.[170] Rather, the remedy of a permanent stay is 'a measure of last resort' which will only be ordered where there is no other way to protect the integrity of the system of justice administered by the court.[171]
2. One situation in which the potential for an abuse of process has been recognised is where the processes of a court are invoked to litigate claims that could and should have been litigated in earlier proceedings.[172] In Tomlinson, French CJ, Bell, Gageler and Keane JJ said:[173]

Abuse of process ... is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.

Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel. Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel. (emphasis added) (footnotes omitted)

1. In UBS, the plurality pointed out that it is not enough, in order to establish an abuse of process, that a claim could have been raised in the earlier proceedings; it must also be shown that the claim should have been so raised. In some circumstances where the bringing of a claim should have been litigated in the earlier proceeding, the bringing of that claim will be an abuse.[174]
2. More recently, in Clayton v Bant,[175] Kiefel CJ, Bell and Gageler JJ cited with approval a statement in Port of Melbourne Authority v Anshun Pty Ltd[176] that:

there are a variety of circumstances ... why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings eg expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few.

1. Also, in UBS, Kiefel CJ, Bell and Keane JJ observed:[177]

The timely, cost effective and efficient conduct of modern civil litigation takes into account wider public interests than those of the parties to the dispute. These wider interests are reflected in s 37M(2) of the [Federal Court of Australia Act 1976 (Cth)]. As the joint reasons in Aon Risk Services Australia Ltd v Australian National University explain, the 'just resolution' of a dispute is to be understood in light of the purposes and objectives of provisions such as s 37M of the [Federal Court of Australia Act]. Integral to a 'just resolution' is the minimisation of delay and expense. These considerations inform the rejection in Aon of the claimed 'right' of a party to amend its pleading at a late stage in the litigation in order to raise an arguable claim. The point is made that a party has a right to bring proceedings but that choices are made respecting what claims are made and how they are framed. Their Honours speak of the just resolution of the dispute in terms of the parties having a sufficient opportunity to identify the issues that they seek to agitate. The respondent's argument in Aon, that the proposed amendment to raise the fresh claim was a necessary amendment to avoid multiple actions, did not avail. As their Honours observe, if reasonable diligence would have led to the bringing of the claim in the existing proceedings, any further proceeding might be met by a stay on Anshun grounds.

...

Batistatos v Roads and Traffic Authority (NSW) makes clear that the just resolution of a controversy may be the permanent stay of the proceeding notwithstanding that the plaintiff is not at fault and that the merits of [the plaintiff's] claim have not been decided. As the joint reasons explain:

'The plaintiff certainly has a "right" to institute a proceeding. But the defendant also has "rights". One is to plead in defence an available limitation defence. Another distinct "right" is to seek the exercise of the power of the court to stay its processes in certain circumstances. On its part, the court has an obligation owed to both sides to quell their controversy according to law.'

...

The courts must be astute to protect litigants and the system of justice itself against abuse of process. It is to hark back to a time before this Court's decisions in Aon and Tomlinson and the enactment of s 37M of the [Federal Court of Australia Act] to expect that the courts will indulge parties who engage in tactical manoeuvring that impedes the 'just, quick and efficient' resolution of litigation. To insist, for example, on 'inexcusable delay' as a precondition of the exercise of the power to stay proceedings as an abuse of process is to fail to appreciate that any substantial delay is apt to occasion an increase in the cost of justice and a decrease in the quality of justice. And other litigants are left in the queue awaiting justice. Further, there is no reason why the courts should tolerate attempts to manipulate other parties and the courts themselves by the deployment, by a single directing mind and will, of different legal entities under common control for such a purpose. The concern is as to whether the processes of the court are being abused. Given that this is the central concern, the circumstance that the abuse is effected by the use of multiple entities orchestrated by a single mind and will is no reason to tolerate it.

Nor does the undue vexation which a stay of proceedings is concerned to prevent arise only when proceedings in respect of the same issue have been concluded by a judgment on the merits. Serial proceedings discontinued prior to judgment would be an obvious example of an abuse of process. The pursuit of substantially the same claim by serial proceedings conducted by different entities under common control is no less obviously an abuse of process. (emphasis added) (footnotes omitted)

1. In UBS, three plaintiffs - an individual (Mr Tyne), the then trustee of Mr Tyne's family trust (Trust), and Mr Tyne's investment company (T Co) - had previously commenced proceedings in the Supreme Court of New South Wales against the appellant (UBS Bank) seeking damages and equitable compensation in respect of advice allegedly given by UBS Bank to Mr Tyne and his related entities. In the course of that litigation, both Mr Tyne and the then trustee of the Trust discontinued their claims. This left T Co as the sole plaintiff in the Supreme Court. The Supreme Court of New South Wales proceedings were later permanently stayed on the ground that T Co was seeking to relitigate causes of action which, in substance, had been determined in proceedings in the High Court of Singapore, and which had given rise to a res judicata estoppel in respect of the claims by T Co in New South Wales. After this, Mr Tyne, who was by now the trustee of the Trust (the Trustee) commenced fresh proceedings against UBS Bank in the Federal Court of Australia, making (according to the majority of the High Court) essentially the same claims as had been raised by the former trustee of the Trust in the Supreme Court of New South Wales proceedings. UBS Bank applied to have the Federal Court proceedings stayed on grounds which included that the proceedings were an abuse of the process of the Federal Court. The trial judge found that the proceedings were an abuse of process. The Full Court of the Federal Court, by majority, allowed an appeal. UBS Bank appealed to the High Court.
2. The High Court, by majority (Kiefel CJ, Bell, Gageler & Keane JJ), upheld UBS Bank's appeal and found that the Federal Court proceedings were an abuse of process. Amongst other arguments, the Trustee contended that the Federal Court proceedings were not an abuse of process because the rules of the Supreme Court of New South Wales (and of the Federal Court) provided that a discontinuance of proceedings was no bar to bringing fresh proceedings for the same relief. The Trustee also submitted that, if discontinuance of the Trust's claim was perceived to be oppressive or unfair, it had been open to UBS Bank to apply in the Supreme Court of New South Wales proceedings to have the grant of leave for discontinuance conditioned on the basis that no further proceedings be brought in respect of the claim. Kiefel CJ, Bell and Keane JJ observed:[178]

It may be accepted that, under [the relevant rules in New South Wales], the discontinuance of proceedings does not operate as a release of the claims made by the discontinuing party. But that does not mean that discontinuance is irrelevant when the discontinuing party seeks by new proceedings to pursue a discontinued claim. Nor does the possibility that a party might have sought the protection of conditions upon discontinuance, but did not, mean that the disruption and extra costs incurred by that party when confronted by new proceedings is not relevant to whether an abuse of process is being perpetrated. An abuse of process is no less an abuse because the party adversely affected might have, by greater diligence in its own interests, prevented the abuse. Nor does the circumstance that [another relevant rule] provides for a discretion to stay proceedings until the costs of another party of discontinued proceedings are paid by the discontinuing party mean that the circumstances of, and after, discontinuance are irrelevant to whether the commencement of fresh proceedings constitutes an abuse of process.

The whole of the dispute between the Tyne‐related parties and [UBS Bank] arising out of [UBS Bank's] conduct in connection with [T Co's] investment ... was before the Supreme Court of New South Wales. No question of res judicata or issue estoppel arising from the Singapore ... proceedings precluded the determination of the factual merits of the Trust's claim in the Supreme Court of New South Wales. Contrary to the way the matter was put to Ward J before [UBS Bank] withdrew its opposition to the filing of the amended pleading, the issues that the Tyne‑related parties wished to litigate against [UBS Bank] always included the Trust's claims. It is an open question whether [UBS Bank] would have pursued an application for a permanent stay of the [T Co's] claim in circumstances in which any stay would not have served to avoid the trial of the common factual issues raised by the Trust's claim. The time to have the trial of the factual allegations underlying [T Co's] and the Trust's claims was in the [Supreme Court of New South Wales] proceedings.

The fact that [UBS Bank] is a large commercial corporation does not deny that permitting the Trust's claim to proceed will subject it to unjustifiable oppression. That oppression is found not only in the significant delay in the resolution of the dispute and the inevitability of increased costs to [UBS Bank]. At its core is the vexation of being required to deal again with claims that should have been resolved in the [Supreme Court of New South Wales] proceedings. The fact that [UBS Bank] has not been required to admit or defend the Trust's claim does not lessen that vexation. Between December 2010 and May 2013, when the [Supreme Court of New South Wales] proceedings were finally determined [by a permanent stay], [UBS Bank] was engaged in litigation with a party controlled by Mr Tyne, arising out of its alleged dealings with Mr Tyne in respect of the loss that is claimed by the Trust in these proceedings. On the final determination of the [Supreme Court of New South Wales] proceedings, it was reasonable for [UBS Bank] to order its affairs upon the understanding that the dispute between it and Mr Tyne, and the entities that he controlled, arising out of those dealings was at an end.

For the Federal Court to lend its procedures to the staged conduct of what is factually the one dispute prosecuted by related parties under common control with the attendant duplication of court resources, delay, expense and vexation ... is likely to give rise to the perception that the administration of justice is inefficient, careless of costs and profligate in its application of public moneys. The primary judge was right to permanently stay the proceedings as an abuse of the processes of the Federal Court. (footnotes omitted)

1. In a separate judgment, Gageler J (a member of the majority) said:[179]

The hearing of the appeal to this Court was hijacked by a contention put forcefully at the forefront of the submissions made orally on behalf of Mr Tyne that discontinuance of the trustee's claims in the [Supreme Court of New South Wales] proceedings constituted no bar to the trustee bringing the same claims in other proceedings. The contention was plainly correct, but beside the point. The primary judge's conclusion that bringing the Trust's claim against [UBS Bank] in the Federal Court proceedings constituted an abuse of process was based neither in whole nor in part on the consideration that the trustee's claims had been brought in the [Supreme Court of New South Wales] proceedings and had been discontinued. The conclusion was based on the very different assessment that the trustee's claims should have been pursued in the [Supreme Court of New South Wales] proceedings, to which [T Co] remained a party, if they were to be pursued at all.

Gauged solely by reference to the interests of the Trust, Mr Tyne's explanation of why the trustee's claims had not been pursued in the [Supreme Court of New South Wales] proceedings was not unreasonable. Having regard to the interests of [UBS Bank] and the public interest in the timely and efficient administration of civil justice, however, I cannot regard it as providing an explanation as to why it was reasonable for the claims of the Trust to have been held in abeyance rather than to have been brought in the [Supreme Court of New South Wales] proceedings so as to have allowed all relevant issues to have been determined in those proceedings. Were it shown in the context of the [Supreme Court of New South Wales] proceedings to have been consistent with the timely and efficient resolution of the overall matter in dispute for [T Co's] claims to have been pursued separately and in advance of those of the trustee, that could have been achieved by appropriate case management orders which could have resulted in the trustee being bound by findings of fact and determinations of law common to both sets of claims. And [UBS Bank's] application for a permanent stay of [T Co's] claims, had it proceeded, would have proceeded on the basis apparent to the parties and the Supreme Court that success on the application would have left the pending claims of the Trust unresolved.

What was not reasonable having regard to the totality of the private and public interests involved was for Mr Tyne to take it upon himself to hold the claims of the Trust in abeyance with a view to pursuing them in separate proceedings if it turned out that [T Co's] claims were for some reason not successful.

1. In UBS, the difference between the majority and the minority appears to have been not in the statement of the relevant principles, but in their application. The minority judgments were written by Nettle and Edelman JJ, and by Gordon J. Nettle and Edelman JJ, having noted that the court rules concerning discontinuance provided that the discontinuance of proceedings with respect to a plaintiff's claims did not prevent the plaintiff from claiming the same relief in fresh proceedings, and that the Supreme Court of New South Wales proceedings were discontinued without objection and without the imposition of terms,[181] said, amongst other things:
   1. UBS Bank had not been vexed by the Trustee's claims as the Supreme Court of New South Wales proceedings had been stayed, and the Trustee of the Trust was not vexed by the High Court of Singapore proceedings, as the Trustee was not a party to those proceedings.[182] Their Honours said:[183]

As has been observed, the Supreme Court proceedings were shut down in limine as a result of [UBS Bank's] application for a stay, with the consequence that [UBS Bank] has until now not even had to plead to [T Co's] or the Trustee's claims. Further, as has been noticed, [UBS Bank] has not been twice or otherwise unduly vexed. Until now, it has successfully avoided having to face [T Co's] claims, including those under the [Trade Practices Act 1974 (Cth)], and the Trustee's claims, by the device of procuring a permanent stay of proceedings in one of the only jurisdictions in which those claims might effectively have been prosecuted.

1. The delay occasioned was relatively insignificant, and there was no suggestion that UBS Bank's defence had been compromised by any delay.[184] Their Honours observed:[185]

On 9 May 2013, Sackar J gave judgment in which his Honour held that [T Co's] claims were barred either by cause of action estoppel or issue estoppel, but that, if that had not been the case, [T Co's] claims would not have been barred by Anshun estoppel or as an abuse of process because there were sound forensic reasons for [T Co] to choose to conduct its claims in the Supreme Court proceedings. Had [T Co] been permitted to conduct its claims in the Supreme Court proceedings, it would have had a significant juridical advantage by reason of ss 52 and 51A of the [Trade Practices Act] and the various remedies available thereunder. In Singapore, it would not. Only eight months later, on 13 January 2014, the Trustee commenced the Federal Court proceedings. (footnote omitted)

1. There was no evidence of a change of position by UBS Bank in reliance on the discontinuance.[186]
2. UBS Bank had not incurred any material additional costs.[187]
3. There was evidence that the trustee of the Trust had sound reasons for discontinuing the claim by the Trust in the New South Wales proceedings:[188]

In short, the previous trustee, being short of funds and with a reasonable expectation that [T Co's] claims (including under the [Trade Practices Act]) would be allowed to proceed to judgment, resolved to discontinue its participation in the Supreme Court proceedings and wait and see whether [T Co's] claims would be allowed to proceed to judgment in those proceedings. If they were allowed to proceed, the previous trustee's claims could be abandoned, and if they were not allowed to proceed, there would be good reason for the Trustee to begin again. A 'right‐thinking person' would not look askance at such a decision. She or he would think it to be common sense.

1. Gordon J summarised her Honour's view in the following terms:[189]

There is no duplication of proceedings. The principle of finality is not engaged. [UBS Bank] has never had to meet, or plead to, the claims the trustee of the ... Trust raises in the Federal Court Proceedings, including under legislation corresponding to the Trade Practices Act. UBS Bank has not been 'twice vexed'. Not only was Mr Tyne (in his personal capacity) and the trustee of the ... Trust permitted under the [rules in New South Wales] to discontinue their involvement in the NSW Proceedings but the unchallenged reasons given by Mr Tyne for the discontinuance and then, after the NSW Proceedings were permanently stayed, for filing the Federal Court Proceedings do not provide a basis for a finding of abuse of process in relation to the Federal Court Proceedings.

1. The application of the principles concerning abuse of process was also considered by the High Court in Timbercorp Finance. That case concerned the right of defendants to raise claims by way of defences in subsequent proceedings when they had not raised those claims in earlier 'group' proceedings pursuant to pt 4A of the Supreme Court Act 1986 (Vic) (pt 4A) in which they were 'group members'. Relevantly for present purposes, the focus of the High Court's decision was on questions of the defendants' control of the previous proceedings, and whether case management considerations had required them to raise, for consideration by the court managing the earlier proceedings, their potential defences to the claims in the subsequent proceedings.
2. The relevant group proceedings in Timbercorp Finance concerned claims by certain investors in certain managed investment schemes. Timbercorp Ltd (Corporation) provided management investment schemes in horticultural and forestry products. Timbercorp Finance Pty Ltd (Finance) was a subsidiary of Corporation whose purpose was to provide loans to investors in respect of such managed schemes. Timbercorp Securities Ltd (Securities) subsequently replaced Corporation as the responsible entity for the schemes. The group proceedings were commenced in the Supreme Court of Victoria with a lead plaintiff against Finance, Securities and certain directors of the Timbercorp Group. The relief sought by the lead plaintiff against Finance included orders (1) declaring that it had been involved in various statutory contraventions, (2) for damages under certain statutory provisions, and (3) for a declaration that the lead plaintiff and group members were not liable for any loans in connection with the schemes in question. In the course of the proceedings, Finance issued a counterclaim in which it sought to recover moneys alleged to be owed by the lead plaintiff under a loan agreement with Finance. There was a trial of the group proceedings which had as its focus Securities' alleged failure to disclose information about risks, and the overall theme of the lead plaintiff's case was that the fortunes of the schemes were linked to the viability of the Timbercorp Group. Finance's counterclaim was ordered to be heard separately after the other issues were tried in the main proceeding of the group proceedings. Following the hearing of the main group proceedings, the trial judge dismissed the lead plaintiff's claims. The trial judge annexed a list of 33 'common questions in a group proceeding' which had been the subject of argument, and answered them. They were directed to the disclosure obligations of Securities and the allegation that companies in the Timbercorp Group had engaged in misleading and deceptive conduct.
3. The matters in issue before the High Court in Timbercorp Finance concerned questions of alleged estoppel and abuse of process involving, in effect, two litigants who had agreed to participate in the group proceedings at an early point, before it was constituted with a lead plaintiff, and who did not subsequently elect to 'opt out'. After the trial judge had dismissed the lead plaintiff's claims in the main group proceedings, those litigants (Mr and Mrs C and Mr T) were subsequently sued by Finance, who commenced separate proceedings alleging that Mr and Mrs C, and Mr T, had defaulted on payments under their loan agreements with Finance. Mr and Mrs C and Mr T filed defences in those proceedings. In reply to those defences, Finance pleaded that Mr and Mrs C and Mr T were precluded from raising their defences on account of their membership in the earlier group proceedings, and that they were either estopped from raising the matters pleaded in their defences or their defences constituted an abuse of process.
4. The High Court held that there was no estoppel as the lead plaintiff was not the privy in interest of Mr and Mrs C and Mr T.[190] Amongst other things, the plurality (French CJ, Kiefel, Keane & Nettle JJ) found that (1) the representative capacity for a lead plaintiff in a group proceeding was limited to the claims which give rise to common questions, and (2) Mr and Mrs C and Mr T relevantly had no control over the group proceedings, and it would be quite unjust for a person whose legal interests stood to benefit by making a legal claim to be precluded if they did not have some measure of control of the proceedings.[191] The plurality said that:[192]

[I]t could hardly be said to have been expected that [Mr and Mrs C and Mr T] would raise their individual issues about their loan agreements ... in the group proceeding, where the common issues were undisclosed risks and misrepresentations affecting the entry of investors into the schemes. The only connection between those matters and their loan agreements was the relief sought regarding the enforceability of the loan agreements. There was no issue in the group proceeding about the validity of the loan agreements which would have made the claims in [their] defences relevant in the group proceeding.

1. In relation to the question of abuse of process, the plurality said:[193]

The damage to the administration of justice which [Finance] identifies is said to lie in the Supreme Court being denied the opportunity, in the group proceeding, of determining how best to manage the issues raised in the defences in the context of all the common claims. [Finance] points to what was said by the [Australian Law Reform Commission] with respect to the then proposed federal legislation for representative proceedings, namely that it was intended to facilitate claims and strengthen case management powers, given the burdens that complex litigation can put on the judicial system and the parties. If all group members have an unfettered right to pursue their claims individually, the goal of judicial economy would not be fulfilled.

The latter reference is taken out of context. The [Australian Law Reform Commission] was not suggesting that a group member should not be permitted to pursue an individual claim outside the group proceeding. Part 4A itself acknowledges that this will occur. Rather it was saying that where claims were such that they could be determined as a group, they should be. That will arise where there is a common question or issue.

Consistently with the issues of efficiency and better use of court resources, Pt 4A provides the Court with overall management of a group proceeding, with powers to determine how and when individual claims might be heard either in connection with, or separately from, the group proceeding. These powers are to be exercised consistently with the aims of Pt 4A, as no doubt they were when [the trial judge] postponed the counterclaim to after the determination of the claims in the group proceeding. His Honour was no doubt aware of the possibility, if not the fact, that there were other claims, as is evident from the discussions reported from the early directions hearing. But there is nothing to suggest that their determination was considered by his Honour to be necessary to the management and determination of the group proceeding. To the contrary, it may reasonably be inferred that they were not.

At most it may be said that the ... claims [of Mr and Mrs C and Mr T] were not brought to the attention of the Court. It could not be said that the failure to do so affected the case management decisions open to the Court. There is no reason to suppose that knowledge of the respondents' claims would have altered the course that the Court took. In these circumstances, raising the defences in these proceedings can in no way be said to amount to an abuse of process. To the contrary, the preclusion of the ... defences [of Mr and Mrs C and Mr T] to [Finance's] claims would be unwarranted in principle and therefore unjust. (emphasis added) (footnotes omitted)

1. Gordon J, who joined in the dismissal of Finance's appeal, said, amongst other things:[194]

There is no basis to say that a group member must avail themselves of the case management powers under ss 33Q or 33S to litigate any individual claims. [Finance] submits that those powers are there to be used, and it is unreasonable not to have done so because they are express statutory safeguards against the preclusionary implications of a judgment in the group proceeding. That submission mischaracterises the nature of those powers and their role in the statutory scheme.

...

... [T]he simple point is that the Act does not oblige a group member to seek directions in relation to each and every issue that relates to their specific claim, nor is there any indication that the Act expects them to do so.

...

A group proceeding under Pt 4A is conducted by the lead plaintiff on behalf of the group members. Aside from the few limited exceptions considered above, Pt 4A is not designed to encourage active participation by group members in the course of a group proceeding. It is therefore difficult to accept the contention that [Mr and Mrs C's and Mr T's] failure to take an active role points in favour of their conduct being unreasonable.

...

[Finance's] contention that it was unreasonable for [Mr and Mrs C and Mr T] themselves not to raise the issues in the group proceeding, or opt out of that proceeding, must therefore fail.

...

[Finance's] abuse of process claim fails for similar reasons. The raising of the defences [by Mr and Mrs C and Mr T] cannot be described as an abuse of process because there is nothing in either the statutory scheme or the nature of the group proceeding that suggests [they] should have raised their individual claims in the context of the group proceeding. To the contrary, Pt 4A recognises that individual claims may need to be resolved in separate proceedings. In the present circumstances, raising the defences in separate proceedings is not an abuse of process. (emphasis added)

1. In this case, the parties were litigants in a special list, the Commercial and Managed Cases List (CMC List), the general objective of which is to bring cases to the point where they can be resolved by mediation or tried in the quickest and most cost‑effective way, consistently with the need to provide a just outcome. The principle of proportionality is applied and the court also takes account of the need to allot to each CMC List case an appropriate share of the court's limited resources, whilst taking into account the need to allot resources to other cases. The parties and their legal advisers are encouraged to assist the court to achieve these objectives.[195] Cases in the CMC List will include cases which, in the opinion of a CMC List judge, are suitable for more intensive case management having regard to (inter alia) the complexity of the issues and the likely length of the trial.[196]
2. Despite some language which appears to have been used with studied or deliberate inconsistency,[197] the burden of Mineralogy's communications to the CITIC defendants in the period 28 October 2016 to 17 January 2017 (set out in [69] ‑ [95] above) was to the effect that, in addition to unequivocally withdrawing any claims that the Agreements had been terminated, Mineralogy's position with respect to the curial resolution of the other issues ventilated between the parties was that:
   1. there should be a final trial of issues, rather than a trial of preliminary issues;
   2. the trial should proceed expeditiously, with trial dates in June 2017;
   3. to accommodate an early trial and to avoid potentially lengthy disputes as to factual matters, including matters potentially involving significant discovery, the trial should, in general terms, be limited to Mineralogy's claims for Royalty B payments and, in that regard, the proper construction of cl 8 of the Agreements; and
   4. in order to achieve an early trial of that issue between the parties, Mineralogy:

(a) would litigate CIV 1808 on the basis of the proposed 5FASOC pleading, which deleted claims including the Clause 6.3 Claims; and

(b) abandoned such other claims, including the Clause 6.3 Claims, and undertook (to the CITIC defendants) that it would not pursue such other claims.

1. In this regard, we do not accept Mineralogy's submission that its communications in this period were directed only to CIV 1808 and should be understood as so limited.[198] Read as a whole, those communications went further. The aspect of Mineralogy's position set out in point 4 of [182] above was expressed primarily by:
   1. Mr Palmer's affidavit of 21 December 2016, including his statement that Mineralogy has removed and abandoned claims for the minimum royalty under cl 6.3 of the Agreements, and his explanation of the reasons for the removal of, among other things, the Clause 6.3 Claims - see [87] above;
   2. the undertaking in Mineralogy's letter of 12 January 2017 that Mineralogy would not raise claims which it had withdrawn by the proposed 5FASOC in the primary proceedings or in any other proceedings - see [92] above;
   3. the reference, in Mineralogy's written submissions of 16 January 2017, to its undertaking not to raise claims which had been withdrawn in the primary proceedings or in any other proceedings - see [94] above; and
   4. the statement in Mr Palmer's affidavit of 16 January 2017 that, by Mineralogy's letter of 12 January 2017, Mineralogy gave an undertaking not to raise claims which had been withdrawn in the primary proceedings or in any other proceedings - see [95] above.
2. On 20 January 2017, there was an interlocutory hearing at which the future course of CIV 1808 was considered, including Mineralogy's application to amend in terms of the 5FASOC and for early trial dates to be confirmed for June 2017. The communications referred to [182] were before the court. Mineralogy's position was that the judge could and should give directions for the litigation to proceed to an expedited trial on the bases that (1) Mineralogy had narrowed the issues for resolution to the Royalty B issues and two specified claims in the alternative, (2) the Royalty B issues could be dealt with at the hearing in June 2017, and the two alternative issues could be reserved for further resolution in the event that Mineralogy failed on the Royalty B claims, and (3) Mineralogy would otherwise not pursue its other claims, including the Clause 6.3 Claims.
3. At the hearing on 20 January 2017, there was a live issue before the court as to whether, if Mineralogy were given leave to amend in terms of the 5FASOC and if an early trial in June 2017 were confirmed, Mineralogy should be required to give formal undertakings to the court that it would not pursue in CIV 1808 or in any other proceedings the other claims which had been deleted in the 5FASOC or a condition to this effect should be imposed on the grant of leave to amend. When counsel for the CITIC defendants raised this issue, the judge expressed the view that if the withdrawn claims were resurrected, the first thing that would occur would be an attack based on abuse of process - see [104] above. That position was in effect accepted by counsel for the CITIC defendants - see [106] above. In reply, counsel for Mineralogy did not cavil with this position. Moreover, in dealing with this issue during the 20 January 2017 hearing, counsel for Mineralogy in reply effectively invited the court not to require any formal undertakings or impose a condition to the effect referred to above, on the assurance that Mineralogy would be as good as its word in its earlier communications (including in Mr Palmer's affidavit) - see [107] above.
4. Whilst the judge did not expressly refer to that assurance in his judgment in Mineralogy [No 14], it is to be inferred, as the judge found in the primary reasons,[199] that the judge was persuaded that the most efficient use of the court's, and the parties', resources would be to proceed to an early trial on the basis propounded by Mineralogy, namely that the other claims were not being pursued and were abandoned.[200]
5. Mineralogy then sought and obtained orders in accordance with the judge's reasons in Mineralogy [No 14].
6. Mineralogy's conduct referred to in [182] ‑ [185] above was to be considered in the broader context that the litigation was conducted in the CMC List, and that:
   1. The litigation between these parties in relation to the Agreements was commenced in 2013.[201]
   2. Mineralogy had advanced and withdrawn a range of claims between 2013 and 2017 in relation to the Agreements, including claims that the Agreements (on which it later sued to recover royalties) were terminated.[202]
   3. In the course of the litigation in CIV 1808:

(a) Mineralogy included the Clause 6.3 Claims in its originating process in 2013, and they remained part of its claims until December 2013;[203]

(b) Mineralogy deleted the Clause 6.3 Claims from its pleading in December 2013;[204]

(c) matters concerning the Clause 6.3 Claims became the subject of declarations sought by the CITIC defendants in their defence and counterclaim, as amended from time to time in the period September 2014 to May 2015;[205]

(d) the Clause 6.3 Claims were reintroduced in CIV 1808 by Mineralogy in April 2016, pursuant to Mineralogy's application for leave to amend;[206] and

(e) on 1 November 2016, in correspondence regarding CIV 1808, Mineralogy informed the CITIC defendants that it did not intend to press the Clause 6.3 Claims.[207]

1. In addition to CIV 1808, prior to 20 January 2017, Mineralogy instituted other proceedings in relation to the Agreements, being CIV 2303 of 2015 and CIV 2368 of 2015. These proceedings were stayed as an abuse of process on the basis that they included matters properly the subject of CIV 1808, including the Clause 6.3 Claims.[208]

1. There was no application by Mineralogy to amend to plead the Clause 6.3 Claims in CIV 1808 between 20 January 2017 and the hearing of those proceedings in June 2017, nor, indeed, at any time prior to the entry of final judgment in CIV 1808 in November 2017.[209]
2. By the date of judgment in CIV 1808, Mineralogy evidently had its Clause 6.3 Claims formulated for the purposes of a separate action, and, on the date of judgment delivery in Mineralogy [No 16], Mineralogy commenced a further action, CIV 3011, in respect of the Clause 6.3 Claims. Mineralogy subsequently discontinued CIV 3011 five days later. Then in December 2017, Mineralogy commenced a further action in respect of the Clause 6.3 Claims in CIV 3166, which was entered into the CMC List. After the CITIC defendants applied to have CIV 3166 stayed as an abuse of process, Mineralogy discontinued that action.
3. Contrary to Mineralogy's submissions in this appeal, it is incorrect to characterise Mineralogy's conduct referred to in [70] ‑ [95] as, in effect, an offer not to proceed with the Clause 6.3 Claims which was not accepted by the CITIC defendants on or by 19 January 2017, and thereby the offer lapsed. That is so for four reasons. First, in its correspondence and affidavits prior to 20 January 2017, Mineralogy was seeking the CITIC defendants' consent to court orders which would secure an early trial on limited issues, including by reference to the orderly and efficient administration of justice. It is unnecessary and distracting to view the communications through the prism of the principles of contract law and offer and acceptance. Secondly, the undertaking by letter of 12 January 2017 was given in unequivocal and unqualified language: 'by this letter, Mineralogy gives the following undertakings'; and was said by Mr Palmer's affidavit of 16 January to have been so given: '[b]y its letter dated 12 January 2017, [Mineralogy] gave the following undertakings'. Thirdly, Mineralogy's communications prior to 20 January 2017 indicated that, irrespective of the CITIC defendants' response to its proposals, Mineralogy would press for orders on 20 January 2017 in accordance with, and on the strength of, the undertakings referred to, including the abandonment of the Clause 6.3 Claims. Fourthly, and significantly, at the hearing on 20 January 2017, counsel for Mineralogy relied on the undertakings; such reliance is inconsistent with the undertakings having been an offer that had lapsed for non-acceptance. Counsel referred to Mr Palmer's evidence as a basis for persuading the court that it was unnecessary to require formal undertakings from Mineralogy that it would not proceed with the other claims, including the Clause 6.3 Claims or to impose a condition to that effect.
4. Further, for the second to fourth reasons in [191], contrary to Mineralogy's submission, the undertakings cannot be said to have been overtaken by events or to have had little impact on the CITIC defendant's opposition on leave, or to the court's decision to grant leave.
5. In the circumstances referred to in [181] ‑ [188] above, alternatively [181] ‑ [189] above, alternatively [181] ‑ [190] above, the prosecution of CIV 3129 in respect of the Clause 6.3 Claims would serve to bring the administration of justice into disrepute. It is not conducive to the administration of justice to allow a party, particularly one with deep pockets and access to extensive legal resources, to invite the court to list a matter for (an expedited) trial on the basis that it has made considered decisions about what claims to run and not run, characterising those not run as abandoned and referring the court to its undertaking not to pursue them in these or other proceedings and then, once that litigation is completed and judgment obtained, commence further proceedings in relation to the claims that it said it would not run and had characterised as 'abandoned'. Whilst Mineralogy in this appeal has emphasised that the Clause 6.3 Claims are arguable and have never been determined on their merits, the absence of a determination on the merits is not in itself incons[210]ent with characterising the proceedings in CIV 3129 as an abuse.210 Indeed, a strategic decision not to run a claim will inevitably have the consequence that the claim is not determined on its merits. The obs[211]ations of Gaudron J in The Commonwealth of Australia v Verwayen,211 albeit made with reference to the topic of amendments prior to judgment, are pertinent in this context:

If, in the course of litigation, a person fails to plead a matter, take an available objection or pursue a particular point of law, the matter proceeds on the basis that the point which might have been taken is not in issue. Were it otherwise the conduct of litigation would be unmanageable.

1. In this case, there was not only no 'communicated likelihood of later proceedings being commenced',[212] but the evidence included positive statements, by letter and on oath, by the directing mind and will of Mineralogy, relied upon by counsel for Mineralogy at the hearing on 20 January 2017, that (relevantly) later proceedings with respect to the Clause 6.3 Claims would not be commenced, and that the Clause 6.3 Claims had been abandoned.
2. It is true, as Mineralogy contends, that the Clause 6.3 Claims involved (1) significant factual disputes, as well as (2) the application of the provisions regarding Royalty B on their proper construction. It is also true that, in this second aspect, a prior determination of the proper construction of cl 8 in CIV 1808 might not have been an unreasonable way to approach the determination of the Clause 6.3 Claims. However, had that course so much to commend it, it may have been expected to have been raised by Mineralogy at the hearing on 20 January 2017. Mineralogy did not invite the court to adopt that course on 20 January 2017. It was not the subject of submissions by the CITIC defendants, and it was not a course which the judge was asked to address and decide upon at the hearing on 20 January 2017. The point is that it was not only not raised, but the need for its consideration as a legitimate approach to case management was effectively disavowed by Mineralogy's assurance (albeit not in the terms of a formal undertaking to the court) that such claims would not be pursued. The position of Mineralogy in this case bears no similarity to the position of Mr and Mrs C and Mr T in Timbercorp Finance.
3. Turning specifically to Mineralogy's grounds, for the reasons given in [181] ‑ [193] above, ground 1 cannot be accepted. The fact that the Clause 6.3 Claims had not been determined on their merits did not preclude a finding of abuse of process. Further, in light of Mineralogy's conduct prior to and at the hearing on 20 January 2017, and in obtaining the relief it sought for the prosecution and disposition of the proceedings in CIV 1808, the CITIC defendants were entitled to organise their affairs on the understanding that the other claims, including the Clause 6.3 Claims, were not being pursued - the CITIC defendants were not disentitled in that regard on the basis that they are large c[213]ercial organisations.213 It is this consideration, rather than the extent of any additional costs that might be incurred from running the litigation in stages in the manner contended for by Mineralogy in the primary proceedings and in this appeal, that makes a future trial of the Clause 6.3 Claims 'productive of serious and unjustified [214]uble and harassment'.214 Thus, points 1 ‑ 6 of Mineralogy's submissions summarised in [125] above do not assist it.
4. Points 7 - 11 of Mineralogy's submissions in [125] do not assist it, for the reasons in [195] above.
5. Further, for the reasons already given, the commencement and maintenance of the primary proceedings was an abuse because it served to bring the administration into disrepute. That was so regardless of whether and to what extent the proceedings occasioned vexation and oppression to the defendants.
6. Also, in making decisions as to the most appropriate allocation of its resources, including orders for an expedited trial on issues confined by Mineralogy, the court necessarily left other litigants 'in the queue awaiting justice'.[215]
7. Ground 1 should be dismissed.
8. There is no error as alleged in ground 2. The judge did not apply the wrong test by treating as determinative (or substantially determinative) the fact that Mineralogy could have expressly sought to preserve the Clause 6.3 Claims. The judge considered all the circumstances, with appropriate focus on the communications and circumstances up to and on 20 January 2017.[216] The judge made repeated reference to the fact that Mineralogy could have, but did not, expressly sought to preserve the Clause 6.3 Claims because, in the circumstances of the case, that fact was significant. Had Mineralogy expressly sought to preserve the Clause 6.3 Claims, the reasons referred to above for characterising the proceedings in CIV 3129 as an abuse of process would have had no application. It would have resulted in a full disclosure to the court of the claims Mineralogy intended to run, or to preserve to enable it to run, and of the basis upon which it applied to the court to allocate its resources.
9. Ground 3 involves a mischaracterisation of the effect of Mineralogy's conduct in the period up to and at the hearing on 20 January 2017. The correct characterisation of Mineralogy's conduct is referred to at [182] ‑ [185] and [191] ‑ [194] above. Ground 3 should be dismissed.
10. Ground 4 fails because grounds 1 ‑ 3 fail.
11. Ground 5 alleges error in the judge in finding that an Anshun estoppel had arisen, and ground 6 alleges an absence of adequate reasons for this finding.
12. In Tomlinson, French CJ, Bell, Gageler and Keane JJ said:[217]

Three forms of estoppel have now been recognised by the common law of Australia as having the potential to result from the rendering of a final judgment in an adversarial proceeding. The first is sometimes referred to as 'cause of action estoppel'. Estoppel in that form operates to preclude assertion in a subsequent proceeding of a claim to a right or obligation which was asserted in the proceeding and which was determined by the judgment. It is largely redundant where the final judgment was rendered in the exercise of judicial power, and where res judicata in the strict sense therefore applies to result in the merger of the right or obligation in the judgment. The second form of estoppel is almost always now referred to as 'issue estoppel'. Estoppel in that form operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The classic expression of the primary consequence of its operation is that a 'judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies'. The third form of estoppel is now most often referred to as 'Anshun estoppel', although it is still sometimes referred to as the 'extended principle' in Henderson v Henderson. That third form of estoppel is an extension of the first and of the second. Estoppel in that extended form operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. The extended form has been treated in Australia as a 'true estoppel' and not as a form of res judicata in the strict sense. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument. (emphasis added) (footnotes omitted)

1. Although (with respect) it is not entirely clear, the better view is that the judge did not find an Anshun estoppel. When the primary decision is read as a whole,[218] including with its emphasis on the application of the principles in UBS and the absence of any reasons directed to the principles and application of Anshun estoppel, the judge appears to have found an abuse of process, rather than an Anshun estoppel. Whilst the words 'not merely an Anshun estoppel' in [213] of the primary decision might be construed as impliedly finding an Anshun estoppel, read as a whole and in the context of the primary decision as a whole, [213] of the primary decision appears to be a finding to the effect that the correct characterisation of Mineralogy's conduct goes beyond a consideration of the Anshun principles and engages the application of the principles of abuse of process.
2. For these reasons, grounds 5 and 6 should be dismissed.
3. Even if we were wrong in concluding that the judge did not find an Anshun estoppel, for the reasons given above, the judge was correct to find an abuse of process, and so grounds 5 and 6 cannot affect the proper disposition of this appeal. If, contrary to our conclusion, the finding of abuse were to be found to be wrong, it would follow in our opinion that ground 5 would succeed. In the circumstances of the present case, any finding of an Anshun estoppel would and could add nothing to the judge's finding of an abuse of process. Counsel for the CITIC parties accepted that, in this case, there were no circumstances in which there was an Anshun estoppel but no abuse.[219]
4. In the circumstances, it is neither necessary nor appropriate to give further consideration to the merits of grounds 5 and 6.

1. Mr Palmer submitted that the judge erred in precluding him from litigating a claim under cl 11.5(c) of the FC Deed.
2. Clause 11.5 of the FC Deed provides:

(a) In consideration of Mineralogy granting the further rights to Sino Iron and Korean under this Deed and in further consideration of the sum of five thousand dollars ($5000.00) paid on the date hereof by CITIC to Mineralogy, CITIC unconditionally and irrevocably guarantees to Mineralogy the performance of Korean's or Sino Iron's obligations under this Deed and the Project Agreements.

(b) If Korean or Sino Iron fails to perform its obligations under this Deed or the Project Agreements when they are due, CITIC must immediately on demand from Mineralogy cause Sino Iron or Korean as the case may be to perform its obligations under this Deed or the Project Agreements as applicable. If Sino Iron or Korean fail to perform the obligation CITIC must itself perform the obligation within 7 days of a demand by Mineralogy to do so (which, for the avoidance of doubt, includes the payment of an amount which is due to be paid but which has not been paid by Sino Iron or Korean).

(c) CITIC indemnifies Clive F Palmer and Mineralogy against any loss suffered, paid, or incurred by it in relation to the failure of Sino Iron and/or Korean to perform its obligations under this Deed or the Project Agreements[220] or the failure of CITIC to cause Sino Iron and/or Korean to perform its obligations under this Deed or the Project Agreements. (emphasis added)

(a) The obligations of CITIC under this Clause 11 are continuing obligations.

(b) The obligations of CITIC under this Clause 11 are principal obligations and are not discharged or otherwise affected by anything which, but for this paragraph might have that effect (including without limitation, the grant to any person of any time, waiver, covenant not to sue, the cessation of the obligations, any alteration, amendment, variation, supplement to or replacement of this Deed or any other document or agreement,). This paragraph applies irrespective of the consent or knowledge or lack of consent or knowledge of any person or party to the relevant event.

(c) A party may not seek to enforce a guarantee given under this Clause 11 unless it has first made a demand for payment or performance (as the case may be) to the party with the primary obligation, which has not been satisfied. (emphasis added)

The following provisions will apply to each indemnity provided for under this Deed:

...

(e) Each party claiming the benefit of an indemnity must take all reasonable steps to minimise, and where possible, avoid any loss or damage suffered by it.

Mineralogy/Mr Palmer's statement of claim in CIV 3129

1. In their statement of claim in CIV 3129, the plaintiffs (Mineralogy and Mr Palmer) included pleas against Sino/Korean under cl 6.3 of the Agreements and against CITIC as guarantor and/or indemnifier in respect of Sino/Korean's alleged failure to perform cl 6.3 of the Agreements.[221] Mr Palmer then pleaded, at par 73 of the statement of claim:

If this Honourable Court holds that Mineralogy is estopped or otherwise precluded from prosecuting its claim for the Minimum Royalty,[222] Palmer says as follows.

1. Mineralogy has been deprived of its chose in action in respect of the Minimum Royalty;
2. The chose in action is a valuable asset;

1. The value of the chose in action is equivalent to the amount claimed in this proceeding being the amounts pleaded in paragraph 56 and 57 above;

1. Mineralogy's value has declined by an amount equivalent to the value of the chose in action;
2. The value of Palmer's shareholding in Mineralogy has similarly declined by an amount equivalent to the value of the chose in action;
3. As a consequence of the matters alleged in paragraphs 1 to 69 and 73(a) to (e) above, Palmer suffered loss.
4. The loss suffered by Palmer is a loss in relation to:

(i) the failure of Sino and Korean's failure to perform a Project Agreement, namely the Sino and Korean Agreements pleaded in paragraphs 1 to 69 above;

(ii) the failure of CITIC Limited to cause Sino and/or Korean to perform their obligations under a Project Agreement, namely the Sino and Korean Agreements as pleased in paragraphs 1 to 69 above,

within the meaning of clause 11.5(c) of the [FC Deed];

1. CITIC Limited has indemnified Palmer for the said loss;
2. By reason the matters pleaded in paragraphs 70 and 73(a) to (h) above, Palmer is entitled to the relief in paragraph J to L of the prayer for relief [ie, effectively payment of the Minimum Royalty].

1. Relevantly for present purposes, the CITIC parties contended, before the primary judge at the hearing of the CITIC parties' stay application on 25 September 2019, that:[223]
   1. Mr Palmer's indemnity claim under cl 11.5(c) of the FC Deed was precluded as an abuse of process consistently with the reasoning of the High Court in UBS.[224]
   2. Mr Palmer's claim in CIV 3129 disclosed no reasonably arguable cause of action, in that:

(a) Mr Palmer's claimed loss was not recoverable as it was merely reflective of the loss suffered by Mineralogy by it being precluded from pursuing its own claim under cl 11.5(c) of the FC Deed;[225] and

(b) on the proper construction of cl 11.5(c) of the FC Deed, Mr Palmer's loss, if it arises, was caused by Mineralogy's failure to bring the Clause 6.3 Claims in CIV 1808, and it is untenable to suggest that Mr Palmer's alleged loss was related to any failure by Sino/Korean to perform, or any failure by CITIC to cause Sino/Korean to perform, their obligations under cl 6.3 of the Agreements.[226]

1. They relied on the court's inherent power to prevent an abuse of its processes and/or alternatively the powers under O 20 r 19(1) or O 16 r 1 of the RSC.[227]

1. In oral submissions, in relation to the 'causation' issue, senior counsel for the CITIC parties submitted that:[228]

any damage that has been caused [to] Mineralogy in relation to [Mr Palmer's indemnity claim], has been caused by Mr Palmer. So that's the third reason that claim should be rejected by the court.

1. Also, in written submissions filed on 13 June 2019, the CITIC parties submitted:[229]
   1. In order for Mr Palmer to be indemnified under clause 11.5(c) of the [FC Deed], the loss claimed must be:

'suffered, paid or incurred by it in relation to the failure of [Sino] and/or Korean to perform its obligations under [the FC Deed] or the ... Agreements or the failure of CITIC to cause [Sino] and/or Korean to perform its obligations under [the FC Deed] or the ... Agreements.'

1. When determining the meaning of terms in a commercial contract such as the [FC Deed]:

'it is necessary to ask what a reasonable businessperson would have understood those terms to mean. That inquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract and the commercial purpose or objects to be secured by the contract.'

1. Further, as noted, an indemnity must be strictly construed. Even accepting that the words 'in relation to' are broad, no reasonable businessperson could be expected to interpret the clause as indemnifying against losses caused by the indemnified party's own tactical forensic decisions. This conclusion is reinforced by clause 9.1(e) of the [FC Deed], which provides that:

'Each party claiming the benefit of an indemnity must take all reasonable steps to minimise and, where possible, avoid any loss or damage suffered by it.'

1. It is therefore not open to Mr Palmer to argue that the loss claimed is captured by clause 11.5(c) [of the FC Deed]. (footnotes omitted)
2. In response to the CITIC parties' submissions on the 'causation' issue, counsel for Mr Palmer submitted:[230]

Finally, your Honour, can I say something about causation. It is said that there's a fatal causation problem with Mr Palmer's claim. We would say that is a factually intensive question that should be determined at trial and that questions of factual causation, of their nature, are matters that ought only be dealt with at trial. In any event, there is an important question of construction about clause 11.5(c) [of the FC Deed] concerning what, if any, form of causal link it requires.

And your Honour will recall that clause 11.5(c) of the [FC Deed] refers to any loss in relation to the failure of Sino or Korean to perform their obligations. It does not use the language of causation, and that, we would say, is quite deliberate. It does not say 'any loss caused by the failure of Sino or Korean to perform their obligations'. Instead, it says 'any loss in relation to such a failure'. And we say there is a real question of construction as to the width of that expression, 'in relation to', including whether it requires a causal link at all, and if it does, what kind of causal link and by reference to what test or what standard?

And we say, as your Honour correctly observed in the judgment earlier this year in the indemnity proceedings, like all questions of construction of [clause] 11.5 [of the FC Deed], as it applies to complex facts, as it does here, that is [a] question which can only be determined at trial. So, your Honour, for those reasons and those set out in our written submissions, we say that the [CITIC parties'] chamber summons filed on 23 January [2019] should be dismissed with costs.

Mr Palmer's personal claim as currently pleaded, was verbally clarified during the course of oral arguments by his counsel at the hearing of this application (see ts 92 - 94). So clarified, it is to be more properly viewed as a claim pursued against CITIC Ltd 'in the alternative'. Its essence can be gleaned from the plaintiffs' statement of claim - pars 73(a), (d), (e) and (f).

So understood, Mr Palmer's personal claim proceeds on a basis that if by reason of an adverse conclusion reached against Mineralogy in this action, resulting in it being found to be precluded from successfully prosecuting this action, the [Clause 6.3 Claims], then as a result he would be personally deprived of Mineralogy's chose in action. Hence, for such adversely assumed circumstances, Mr Palmer argues that Mineralogy's (share) value would decline by the amount equivalent to the (lost) value to him of Mineralogy's (assumed as stayed or barred) chose of action seeking the [Clause 6.3] money under cl 6.3(b) [of the Service Agreements].

Critically, by pars 73(e) and (f) of the statement of claim, Mr Palmer contends his own loss as being:

'(e) The value of Palmer's shareholding in Mineralogy has similarly declined by an amount equivalent to the value of the chose in action; [and]

(f) As a consequence of the matters alleged in paragraphs 1 to 69 and 73(a) to (e) [of the plaintiffs' statement of claim], Palmer suffered loss.'

So seen, Mr Palmer's contended personal cause of action in respect of which he then seeks an indemnification from CITIC Ltd under cl 11.5(c) of the [FC Deed] (see par 27 and par 28 of the statement of claim), is for his personal loss incurred by reason of a decline in the value of the shares he holds in Mineralogy - upon Mineralogy's loss of its presently advanced chose of action, due either to the application of abuse of process, or by Anshun estoppel principles.

So, Mr Palmer presently seeks for himself what is referred to by some case authorities, as a shareholder's 'reflective loss' as regards a diminished value of Mr Palmer's shares as held in the Mineralogy corporate entity that has sustained the primary loss. Furthermore, Mr Palmer also contends that, in such circumstances, the indemnification covenant of the [FC Deed] expressed in his favour by CITIC Ltd towards his personal losses, is thereupon engaged.

1. In finding that Mr Palmer's pursuit of a claim under cl 11.5(c) of the FC Deed in the primary proceedings constituted an abuse of process, the judge said:[232]

The abuse of process is applicable not only as against Mineralogy, but also, I conclude, against Mr Palmer. He is obviously the guiding hand, driving mind and tactical decision maker behind every step and decision that was and is made along the way by Mineralogy. His position is in every respect akin to that of Mr Tyne in UBS ...

Nor do I find a basis to sustain any of the fallback arguments as were also run at the hearing for Mineralogy or on Mr Palmer's behalf, concerning the attempted recourse to the [FC Deed] by cl 11.5(c) or (d) - as regards arguments of loss and damage by Mineralogy, or loss and damage suffered personally by Mr Palmer - arising out of the permanent stay of this action as an abuse of process.

I assess that the actual cause of Mineralogy's loss of the [Clause 6.3 Claims] cause of action under a permanent stay is not attributable in any way to the CITIC defendants. Rather, it is causatively attributable, solely and exclusively, to the abuse of process conduct by Mineralogy which itself has been occasioned at the behest of Mr Palmer.

Given that true cause and the origin of the result, it is simply unarguable as well for Mineralogy to try now to suggest that the guarantee or indemnification provisions of the [FC Deed] might possibly be engaged, so as to cover such abuse of process circumstances, of Mineralogy's and Mr Palmer's own making. To so contend, on my assessment, is wholly untenable.

1. Ground 1 alleges, in effect, that insofar as the judge found an abuse of process by Mr Palmer in bringing an indemnity claim under cl 11.5(c) of the FC Deed in CIV 3129, the finding was not open.
2. Ground 2 alleges, in effect, that insofar as the judge made such a finding, the judge failed to give adequate reasons for his conclusion.
3. Ground 3 alleges, in effect, that insofar as the judge, having found Mr Palmer's loss to be 'causatively attributable, solely and exclusively, to the abuse of process conduct by Mineralogy which itself has been occasioned at the behest of Mr Palmer', characterised Mr Palmer's indemnity claim in CIV 3129 as so clearly untenable that it disclosed no reasonable cause of action, the finding was not open on the facts as found by the judge.
4. Ground 4 alleges, in effect, that insofar as the judge found that Mr Palmer's cause of action was so clearly untenable that it disclosed no reasonable cause of action, his Honour failed to give adequate reasons for that conclusion.
5. Ground 5 alleges, in effect, that insofar as the judge concluded that Mr Palmer's claim for an indemnity under the FC Deed was untenable, the judge failed to consider counsel for Mr Palmer's oral submissions (referred to in [219] above) to the effect that questions of causation, including whether the indemnity in the FC Deed even requires a causal link at all, are questions that concern the proper construction of the indemnity, which can only be determined at trial.

1. Mr Palmer submitted that the judge failed to consider the following circumstances:[233]
   1. Mr Palmer was not a party to CIV 1808, CIV 3011 or CIV 3166. In CIV 3166, Mineralogy wrote to the CITIC defendants and indicated that it intended to apply to join Mr Palmer to the proceedings for the purpose of making a claim under the FC Deed, and the CITIC defendants indicated that the application would be opposed. In light of the position taken by the CITIC defendants, Mr Palmer considered that the most efficient course would be for Mineralogy to discontinue CIV 3166, and to file fresh proceedings in which both Mineralogy and Mr Palmer were plaintiffs.
   2. Mr Palmer's claim was not pleaded in those earlier proceedings, nor any claim seeking to rely on him being an express object of CITIC's guarantee and indemnification promises in the FC Deed.
   3. Mr Palmer did not provide an undertaking in CIV 1808 concerning the pursuit of his claim under cl 11 of the FC Deed, nor did any undertaking given by Mineralogy purport to bind Mr Palmer.
2. Mr Palmer submitted that the highest the judge's analysis could be put is that his Honour found that it is an abuse of process for Mr Palmer to bring his claim where the claimed loss arises from Mr Palmer's own abuse of process. Mr Palmer submitted, in effect, that whether this analysis is correct depends on whether Mr Palmer's claim (effectively made in the alternative) is legitimate despite Mineralogy's conduct.[234]
3. Mr Palmer submitted that courts should be slow to take the 'extreme step' of preventing an individual, whose claim has never before been litigated, from ever having an opportunity to litigate, on its merits, a claim that is reasonably arguable.[235]

Grounds 1 and 2 - the CITIC parties' submissions

1. In respect of ground 1, the CITIC parties submitted that the facts found concerning the nature of Mineralogy's conduct, and Mr Palmer's responsibility for it as Mineralogy's directing mind and will, amply support the finding that Mr Palmer's claim under the FC Deed constituted an abuse of process.[236]
2. The CITIC parties submitted that Mr Palmer's assertion that the judge failed to consider the distinguishing features of Mr Palmer's claim is not correct. Rather, the CITIC parties submitted that the judge 'carefully described' the ways in which Mr Palmer's claim, and the circumstances in which it was brought, were distinct from Mineralogy's claim.[237]
3. Further, the CITIC parties submitted that the judge noted that Mr Palmer was not party to any of the earlier proceedings in which Mineralogy had advanced the Clause 6.3 Claims, and that Mr Palmer was bringing his claim for the first time.[238] The CITIC parties also submitted that the judge distinguished Mr Palmer's claim from Mineralogy's claim, emphasising its unusual nature, when his Honour stated:[239]

It might be observed immediately that there is a certain novelty to the [FC Deed] claim for a personal loss suffered by Mr Palmer, upon the adverse circumstances of an ascertained abuse of process or Anshun estoppel found as against the corporation he controls, Mineralogy.

1. The CITIC parties submitted that, having taken those distinguishing features into account, the judge found that Mr Palmer's claim was nonetheless an abuse of process. The CITIC parties contended that, as is clear from the judge's observation that Mr Palmer's position is 'in every respect akin to that of Mr Tyne in [UBS]',[240] his Honour evidently found Mr Palmer's claim to represent a further step in the 'tactical manoeuvring ... to manipulate other parties and the courts themselves by the deployment, by a single directing mind and will, of different legal entities under common control for such a purpose' that the court will not tolerate.[241]
2. In respect of ground 2, the CITIC parties submitted that the judge (1) identified the principles regarding abuse of process, including those most relevant to determining whether Mr Palmer's claim constituted an abuse, (2) made a series of clearly articulated findings concerning Mr Palmer's involvement in Mineralogy's conduct, and (3) applied those principles to come to the 'inevitable' conclusion that Mr Palmer's claim was also an abuse of process. The CITIC parties asserted that this chain of reasoning does not disclose appellable error.[242]

1. Mr Palmer submitted that grounds 3, 4 and 5 address the judge's conclusion (at [215] and [216] of the primary decision) that Mr Palmer's alternative claim in CIV 3129 was untenable. Mr Palmer asserted, in summary, that (1) such a conclusion was not open on the facts as found, (2) the judge gave inadequate reasons for this conclusion, and (3) the judge's conclusion failed to take into account material submissions made orally by counsel for Mr Palmer at the hearing of the CITIC parties' application for a permanent stay.[243]
2. Mr Palmer submitted that the CITIC parties put their 'no reasonable cause of action' submissions in two ways before the judge, namely that (1) Mr Palmer's claim was untenable on the basis that it could be described as a claim for 'reflective loss', and (2) Mr Palmer's claim was untenable in relation to issues of causation. Mr Palmer submitted that the second of the arguments by the CITIC parties (but not the first) appears to have been the basis for the judge's conclusion that the claim was untenable.[244]
3. Mr Palmer submitted that, in any event and regardless of whether or not his claim was properly described as one for 'reflective loss', the true issue is whether such loss falls within the indemnity under cl 11.5(c) of the FC Deed. Mr Palmer contended that this is a matter for the proper construction of the FC Deed, which should occur only once, at trial.[245] Mr Palmer submitted that this approach would be consistent with findings made previously by Kenneth Martin J in Palmer v CITIC Ltd [No 2],[246] where his Honour had stated:[247]

A first step in resolving both actions will be finally determining the contractual interpretation exercise to be conducted on orthodox contractual principles by reference to the text, context and purpose of cl 11.5(c) of the [FC Deed]. But the true meaning ascertainment task can only happen once in each action - at least at first instance.

1. Mr Palmer contended that the causation question (and indeed, whether the indemnity requires a causal link at all) is similarly a question of the proper construction of the indemnity that can only be determined at trial. Mr Palmer contended that submissions to that effect, put before the judge during the hearing of the CITIC parties' application for a permanent stay, appear not to have been taken into account by his Honour.[248]
2. In oral submissions, senior counsel for Mr Palmer placed particular emphasis on cl 11.6 of the FC Deed. He accepted that cl 11.6(b) did not expressly refer to abuse of process. However, senior counsel for Mr Palmer submitted, in effect, that:
   1. the effect of a permanent stay of proceedings as an abuse of process is that the obligation the subject of the proceedings is not enforceable;[249]
   2. as a result, the preclusionary effect of an abuse is that the obligation 'has ceased' and, thus, preclusion by an abuse of process falls within the phrase 'the cessation of the obligations' in cl 11.6(b) of the FC Deed;[250] and
   3. accordingly, even if Mineralogy's Clause 6.3 Claims against Sino, Korean and CITIC were an abuse of process, Mr Palmer's claim under cl 11.5(c) was expressly preserved by cl 11.6(b), as the parties 'had themselves contracted as to the result that would follow in certain events, one of which [abuse of process has] occurred'.[251]
3. Senior counsel for Mr Palmer, in support of the submission, also pointed to the phrase 'covenant not to sue' in cl 11.6(b), and noted that the operation of cl 11.6(b) is 'quintessentially contractual in nature'.[252]

Grounds 3, 4 and 5 - the CITIC parties' submissions

1. In respect of ground 3, the CITIC parties submitted that, on the basis of the facts as found, Mr Palmer, including by his actions on behalf of Mineralogy, was the true cause of the loss in the share value of Mineralogy in respect of which he sought to be indemnified in CIV 3129. The CITIC parties contended that this is particularly so in circumstances where Mr Palmer's novel claim was an alternative claim which only arose if Mineralogy were found to be precluded from pursuing the Clause 6.3 Claims. On Mr Palmer's own pleaded case, he had no claim unless the court concluded that Mineralogy's claim was an abuse of process or was precluded by an Anshun estoppel. In these circumstances, the CITIC parties submitted that it was open to the judge to conclude that Mr Palmer's claim under cl 11.5(c) of the FC Deed was untenable. An untenable claim should not be permitted to go to trial. That is even more so where the defence to that claim would necessarily raise (inter alia) the array of factual issues previously raised by the CITIC parties in response to the Clause 6.3 Claims.[253]
2. The CITIC parties submitted that Palmer v CITIC Ltd [No 2] is of no relevance. That case did not involve any consideration of a claim by Mr Palmer which was expressly premised upon a finding that Mineralogy's claim was not maintainable.[254]
3. Further, the CITIC parties submitted that, even if the observations from Palmer v CITIC Ltd [No 2] were relevant, they are not inconsistent with the approach taken by the judge in the primary decision. The issue was whether the claim concerning cl 11.5(c) which Mr Palmer brought is 'so untenable that it cannot possibly succeed'. That is an issue that must be capable of determination on an interlocutory basis, in appropriate cases.[255]
4. In respect of ground 4, the CITIC parties submitted that the chain of reasoning supporting the judge's conclusion contains no appellable error.[256]
5. As to ground 5, the CITIC parties submitted that the oral submissions referred to were, in substance, no different from Mr Palmer's written submissions. These submissions were summarised by the judge at [182] of the primary decision, where his Honour referred explicitly to the submission that Mr Palmer's claim 'at worst ... raise[s] a debatable question of law'. The CITIC parties contended that this ground must fail as Mineralogy's submission was clearly taken into account and rejected by the judge.[257]

1. The CITIC parties filed a notice of contention in CACV 29 of 2020, alleging that:[258]

The primary judge did not decide, but if necessary ought to have decided, and if necessary this Court should decide, to permanently stay or strike out Mr Palmer's claim on the ground that it is for a reflective loss and therefore does not disclose a cause of action.

The CITIC parties' submissions on the notice of contention

1. The CITIC parties contended that the judge's conclusion (at primary decision [215] and [216]) that Mr Palmer's claim was untenable should be upheld on the additional ground that Mr Palmer's claim was for reflective loss and, for that reason, it failed to disclose a reasonably arguable cause of action.[259]
2. The CITIC parties contended that it is the nature of the loss claimed that will determine whether the claim is impermissible. In this case, the loss pleaded in par 73 of the statement of claim is explicitly the same as Mineralogy's loss.[260] It cannot avail Mr Palmer to say that the claim arises under a different contract (the FC Deed), nor that the scope of the indemnity may need to be determined by interpreting the language of cl 11.5(c) of the FC Deed. His loss must be 'separate and distinct' from that of the company if the claim were to survive. That is not this case. In substance, the loss claimed by Mr Palmer is the same as the loss Mineralogy is alleged to have suffered under the Clause 6.3 Claims. His claim is for reflective loss, which is not permissible.[261]

Mr Palmer's submissions on the notice of contention

1. Mr Palmer submitted, in effect, that:
   1. The alleged loss that he pleaded in par 73 of the statement of claim is 'unduly simplistically' regarded as giving rise to an issue of 'reflective loss'. The claim turns upon a proper construction of the FC Deed and, in particular, cl 11.5(c), as to whether the loss alleged is captured by the language of the indemnity. Mr Palmer relied on his submission in relation to the proper construction of cl 11.6 of the FC Deed referred to in [239[262]] above.262
   2. The construction of cl 11 of the FC Deed, its interaction with common law principles of reflective loss and its application to the facts, are all questions for a trial.[263]
   3. The authorities relied upon by the CITIC parties, including Ekes, are concerned with situations of breach of duty, such as a common law negligence action, or for a breach of contract owed to another company. In contrast, the present contractual indemnification claim is not of the same genus. It is a pure contractual indemnification claim arising from the express terms of the particular indemnification covenant made by CITIC.[264]
   4. In any event, in Ekes, Bathurst CJ provided only a brief recitation of the principles and his Honour's observations were not intended to be compendious. Mr Palmer further submitted that despite citing Johnson v Gore Wood, Bathurst CJ in Ekes did not refer to the proposition that where a company suffers loss, but has no cause of action to recover that loss, the shareholder in the company may sue in respect of it, even though the loss is a diminution in value of the shareholding. That principle has been applied to permit a claim for diminution in share value, pleaded in the alternative, to be relied upon should the company's claim fail: K & J Acquisitions Pty Ltd v Manauzzi.[265] Mr Palmer also referred to Christensen v Scott,[266] where, he contended, the New Zealand Court of Appeal found that a shareholder may claim loss which is personal to the shareholder, including a diminution in the value of shareholding, providing there is no double recovery. Mr Palmer also referred to Harris v Milfull,[267] where the Full Court of the Federal Court described the area of law as 'not settled'.[268]
   5. As the Full Court of the Federal Court accepted in Harris, an appeal on a strike‑out application is not the occasion for the court to expound the law. The development of the law will take place in a more orderly way if decisions are based upon actual findings of fact, rather than upon mere allegations.[269]

The proper construction of the primary decision concerning Mr Palmer's claims

1. Although the judge's reasoning for permanently staying Mr Palmer's proceedings is, to say the least, densely expressed, it appears that, on the proper construction of the primary decision, his Honour found that:
   1. Mr Palmer's position was equivalent to that of Mr Tyne in UBS, in the sense that, having caused Mineralogy to abandon the Clause 6.3 Claims in CIV 1808, the administration of justice would be brought into disrepute if Mr Palmer were permitted to 'deploy' a different entity (himself) to pursue what are, in substance, the Clause 6.3 Claims via a personal cause of action under cl 11.5 of the FC Deed.[270]
   2. Further, Mr Palmer has no reasonably arguable cause of action under cl 11.5(c) of the FC Deed in any event because Mr Palmer's loss was not 'suffered ... or incurred by [him] in relation to' Sino/Korean's failure to perform their obligations under cl 6.3 of the Agreements (within the meaning of cl 11.5(c) of the FC Deed) but rather his claimed loss was 'suffered ... or incurred by [him]' solely and exclusively 'in relation to' Mineralogy's inability, by reason of abuse of process, to pursue its Clause 6.3 Claims.[271]

1. It is convenient to consider first the position of the parties looked at prior to, and independently of, the abuse of process by Mineralogy in relation to the Clause 6.3 Claims.
2. Insofar as Mr Palmer has a cause of action under cl 11.5 of the FC Deed, cl 11.6 does not provide an additional or different cause of action. Rather, any cause of action held by Mr Palmer under cl 11.5 arises from the proper construction of cl 11.5 of the FC Deed read in the context of the FC Deed as a whole, including cl 11.6. Clause 11 is expressed in terms of both guarantee (cl 11.5(a)) and indemnity (cl 11.5(c)). Clauses providing that a guarantor will not be discharged by identified particular matters can be effective to prevent a discharge that would otherwise arise under the general law,[272] and clauses providing in general terms that the surety's liability shall survive anything that would otherwise discharge it will be effective if they are drafted with sufficient clarity.[273] Such provisions might also be designed to operate, inter alia, to (1) reinforce that the provision containing the indemnity is a principal obligation and is not to be construed, in the context of the instrument as a whole, as merely in the nature of a guarantee,[274] or (2) to preserve the indemnifier's liability against events which might otherwise discharge it under the general law.[275]
3. Mr Palmer's successful prosecution of a claim for an indemnity under cl 11.5(c) (read with cl 11.6) would require proof of Mineralogy's claims under cl 6.3 of the Agreements. Any claim by Mr Palmer under cl 11.5(c) of the FC Deed (read in the context of cl 11.6) would require him to establish, relevantly, that (1) Sino/Korean had, and had failed to perform, payment obligations to Mineralogy under cl 6.3 of the Agreements, and (2) he (Mr Palmer) had 'suffered ... or incurred' a loss 'in relation to' Sino/Korean's failure to perform such obligations (or CITIC's failure to cause the performance of such obligations), within the meaning of cl 11(5)(c) of the FC Deed.
4. As to the second of those matters, Mr Palmer's claim in CIV 3129 was put on the basis that his loss, as the ultimate shareholder of Mineralogy, was reflective of the loss suffered by Mineralogy being precluded from itself bringing the Clause 6.3 Claims. There was no claim for any loss to Mr Palmer separate from, or additional to, his loss as a shareholder in Mineralogy (which was merely reflective of Mineralogy's 'loss' of its chose in action in being precluded from pursuing the Clause 6.3 Claims).
5. The principles concerning 'reflective loss' claims were summarised by Bathurst CJ (Beazley P & Emmett JA agreeing) in Ekes:[276]

The principles are well established. When a company suffers loss caused by a breach of duty owed to the company, no action lies at the suit of a shareholder to make good a diminution of the value of the shareholder's shareholding where that loss merely reflects the loss suffered by the company: Prudential at 222 ‑ 223, Johnson at 35 and 62 and Gould at 221 ‑ 222. That principle extends to include losses suffered as a result of diminution in the value of a person's shareholding, loss of dividends and other amounts which the shareholder might have obtained from the company had it not been deprived of its funds: Johnson at 66. The principle extends to a case where both the company and the shareholder have a claim for breach of duty which caused the loss: Johnson at 62.

However, the principle does not prevent the shareholder suing for a loss suffered from a breach of duty owed to him or her where the loss is separate and distinct from the loss suffered by the company: Gould at 220, 241 and 257 ‑ 258 and Johnson at 35 and 62.

1. In Gould v Vaggelas,[277] a husband and wife (the Goulds) were induced by misrepresentations to purchase, on behalf of a company to be formed and controlled by them, a tourist resort on certain terms including vendor finance. Their company (Gould Holdings) was formed and the purchase was completed. After 10 years of unprofitable trading, the company defaulted. The unpaid vendors sued. In proceedings by counterclaim, the Goulds alleged that they had suffered loss by reason of fraudulent misrepresentations made by the vendor (Vaggelas). Gibbs CJ observed:[278]

The second question, whether the Goulds have established that they suffered damage because they acted in reliance on the false statements made by Vaggelas and, if so, what is the measure of their damage, is a more difficult one. The difficulty lies not in stating the legal principles which should be applied, but in applying those principles to the facts of the case. It is clear that it was not right to identify the Goulds with the company, Gould Holdings ... which the Goulds formed to make the purchase, notwithstanding that they were the sole shareholders. It is of course elementary to say, as was said in Prudential Assurance Co Ltd v Newman Industries Ltd [No 2] [at (210)], 'that A cannot, as a general rule, bring an action against B to recover damages or secure other relief on behalf of C for an injury done by B to C. C is the proper plaintiff because C is the party injured, and, therefore, the person in whom the cause of action is vested'. Any loss suffered by Gould Holdings as a consequence of the fraud can be recovered only by the company itself. Even if the company had not commenced an action within the limitation period, its failure to enforce its own rights would not have enhanced the rights of the Goulds: see Prudential Assurance v Newman Industries [No 2] [at (223)]. However, although the Goulds cannot recover damages merely because Gould Holdings has suffered damage, and cannot recover damages which are merely a reflection of a loss suffered by the company, they may recover damages for the loss which they personally have suffered and which is separate and distinct from the loss suffered by the company. That this is so is clear in principle, but if authority is needed, the judgment in Prudential Assurance v Newman Industries [at (222 - 223)] provides it. (emphasis added)

1. The principles were also considered and applied by the Queensland Court of Appeal in Thomas v D'Arcy, in which McPherson JA (Williams JA & White J agreeing) observed:[279]

There is no doubt that as a general proposition the company, and not any of its members or shareholders, is the only proper plaintiff in proceedings to redress a wrong done to it. This is a direct consequence of the decision in Salomon v Salomon & Co [1897] AC 22 that a corporation is in law a distinct entity from the members or shareholders who comprise it. It follows that a shareholder has no proprietary or insurable interest in the assets of a company of which he is a member: Macaura v Northern Assurance Company [1925] AC 619. Consistently with the principle, a shareholder in a company has no right to compensation for losses she sustained by the company arising from the compulsory acquisition of land of which it is the tenant: see Roberts v Coventry Corporation [1947] 1 All ER 308. The fact that the value of her shares is consequently depreciated 'does not give her a right to claim in respect of a loss which the company will suffer' (Lord Goddard CJ, at 309); to allow it to do so would be to 'break in on a rule ... that a corporator in a company has no direct claim as a corporator in respect of a loss which the company makes' (Croom-Johnson J, at 310).

...

These are among the considerations which, in my respectful opinion, justify Lord Millett's description in Johnson v Gore Wood & Co [2002] 2 AC 1, of the 'principle' (at 62) that disallows the shareholder's claim for 'reflective loss' as one 'driven by policy considerations' (at 66). The company, his Lordship said (at 61), is a legal entity separate from its shareholders, with its own assets and liabilities and its own creditors. Accordingly, his Lordship continued, 'where a company suffers loss as a result of an actionable wrong done to it, the cause of action is vested in the company and the company alone can sue ...'. Of course, no one doubts that a shareholder may sue and recover for a loss he has suffered arising out of a separate legal wrong done to him or her but not to the company. As his Lordship said in Johnson v Gore Wood & Co [2002] 2 AC 1, 62:

'Where the company suffers loss as a result of a wrong to the shareholder but has no cause of action in respect of its loss, the shareholder can sue and recover damages for his own loss, whether of a capital or income nature, measured by the diminution in the value of his shareholding. He must, of course, show that he has an independent cause of action of his own and that he has suffered personal loss caused by the defendant's actionable wrong. Since the company itself has no cause of action in respect of its loss, its assets are not depleted by the recovery of damages by the shareholder.'

'is, however, different where the company suffers loss caused by the breach of a duty owed both to the company and to the shareholder. In such a case the shareholder's loss, in so far as this is measured by the diminution in the value of his shareholding or the loss of dividends, merely reflects the loss suffered by the company in respect of which the company has its own cause of action. If the shareholder is allowed to recover in respect of such loss, then either there will be double recovery at the expense of the defendant or the shareholder will recover at the expense of the company and its creditors and other shareholders. Neither course can be permitted. This is a matter of principle; there is no discretion involved.'

...

According to what was said by Lord Millett in the passage quoted from Johnson v Gore Wood & Co [2002] 2 AC 1, 62, the point of principle is that a shareholder will not be permitted to recover damages for a loss caused by a breach of duty owed both to the company and the shareholder where the shareholder's loss reflects the diminution in the value of his shareholding. ...

...

My conclusion therefore is that, applying the principle in Johnson v Gore Wood & Co [2002] 2 AC 1, 62, the plaintiff's claim for damages representing the loss in value of his shareholdings ... is in law not sustainable. The question is whether and to what extent this represents the law of Australia. In [Gould], Gibbs CJ (at 219 ‑ 220), Wilson J (at 245) and Dawson J (at 269) indorsed the rule laid down in Prudential Assurance Co Ltd v Newman Industries Ltd (No 2) [1982] Ch 204, 222 ‑ 223, that a shareholder cannot recover damages comprising a diminution in the value of his shareholding which are a mere reflection of a loss suffered by a company of which he is a member. On the other hand, he is entitled to recover damages for a loss suffered by him personally that is separate and distinct from the loss suffered by the company. In [Gould] a majority of their Honours, Dawson J dissenting, held that the loss sued for was of the latter character. (emphasis added)

1. McPherson JA then referred to the facts of the case before the court, and said:[280]

The result in my opinion is that the plaintiff here is seeking to recover a loss sustained by companies of which he is a shareholder consisting of a diminution in the value of his shareholding. This is a 'reflective' loss of the kind considered and discussed in Prudential Assurance Co Ltd v Newman Industries Ltd (No 2) [1982] Ch 204, 222 ‑ 223; [Gould], and Johnson v Gore Wood & Co [2002] 2 AC 1, which those authorities show is not recoverable by him. To the extent that the decision of the New Zealand Court of Appeal in Christensen v Scott [1996] 1 NZLR 273 suggests (as I consider it does) that such a loss may be recovered by the shareholder rather than the company itself, I would, with respect, decline to follow it.

The plaintiff in the present case complained that an objection of this kind should not be allowed or given effect in an application to strike out parts of the statement of claim at a stage when the facts, as they may turn out to be, have not yet been determined. Ordinarily I would be disposed to think that a submission to that effect might well have weight, as indeed it did in Harris v Milfull [2002] FCAFC 442; (2002) 43 ACSR 542. But here the statement of claim is, in the respects identified, unusually clear about what is being claimed. [The plaintiff's pleading] and the prayer for relief leave no doubt that the plaintiff is suing for damages for losses consisting of the diminution in the value of his shareholdings in companies which, if there has been any breach of the duty to them by virtue of the defendants' retainer, are losses for which only those companies and not the plaintiff himself is entitled to recover. The discretion possessed by the learned judge was exercised in favour of striking out those allegations, and nothing has been shown to persuade me that in doing so he exercised his discretion wrongly.

1. In Chen v Karandonis,[281] which preceded Thomas v D'Arcy, the New South Wales Court of Appeal explained and applied the law concerning 'reflective loss' along essentially identical lines as those in Thomas v D'Arcy.[282]
2. The principles concerning reflective loss claims were recently outlined by Bathurst CJ (Macfarlan & Gleeson JJA agreeing) in Central Coast Council v Norcross Pictorial Calendars.[283] His Honour outlined the principles as follows:[284]

What has been described as the reflective loss principle articulated by the English Court of Appeal in Prudential Assurance Co Ltd v Newman Industries Ltd (No 2) [1982] Ch 204 ('Prudential Assurance') at 223 ‑ 224 (the principle) is that where loss is suffered by a company as a result of wrongdoing in respect of which each of the company and the shareholder has a cause of action, a shareholder cannot sue to recover the diminution in the value of his or her shares (or loss of benefits associated with his or her shareholding) resulting from the loss suffered by the company. The rationale for the principle has been described as the prevention of double recovery (Prudential Assurance at 222; Johnson v Gore Wood & Co [2002] 2 AC 1 ('Johnson') at 62 ‑ 63, 66 ‑ 67 per Lord Millett, Lord Goff agreeing), or on the basis that the shareholder does not suffer a loss distinct from the company and the shareholder is barred from pursuing the claim by the principle in Foss v Harbottle [1843] EngR 478; (1843) 2 Hare 461 ('Foss v Harbottle') (Marex at [10] per Lord Reed PSC, Lady Black and Lord Lloyd-Jones JJSC agreeing), or perhaps because the shareholder has no legal or equitable interest in the company's assets (Marex at [80] per Lord Reed PSC).

In Johnson, the House of Lords affirmed the principle. Lord Bingham set out the principle at 35 in the following terms:

'These authorities support the following propositions. (1) Where a company suffers loss caused by a breach of duty owed to it, only the company may sue in respect of that loss. No action lies at the suit of a shareholder suing in that capacity and no other to make good a diminution in the value of the shareholder's shareholding where that merely reflects the loss suffered by the company. A claim will not lie by a shareholder to make good a loss which would be made good if the company's assets were replenished through action against the party responsible for the loss, even if the company, acting through its constitutional organs, has declined or failed to make good that loss. So much is clear from Prudential Assurance Co Ltd v Newman Industries Ltd (No 2) [1982] Ch 204, particularly at pp 222 ‑ 223, Heron International, particularly at pp 261 ‑ 262, George Fischer, particularly at pp 266 and 270 ‑ 271, Gerber and Stein v Blake, particularly at pp 726 ‑ 729. (2) Where a company suffers loss but has no cause of action to sue to recover that loss, the shareholder in the company may sue in respect of it (if the shareholder has a cause of action to do so), even though the loss is a diminution in the value of the shareholding. This is supported by Lee v Sheard [1956] 1 QB 192, 195 ‑ 196, George Fischer and Gerber. (3) Where a company suffers loss caused by a breach of duty to it, and a shareholder suffers a loss separate and distinct from that suffered by the company caused by breach of a duty independently owed to the shareholder, each may sue to recover the loss caused to it by breach of the duty owed to it but neither may recover loss caused to the other by breach of the duty owed to that other. I take this to be the effect of Lee v Sheard, at pp 195 ‑ 196, Heron International, particularly at p 262, R P Howard, particularly at p 123, Gerber and Stein v Blake, particularly at p 726. I do not think the observations of Leggatt LJ in Barings at p 435B and of the Court of Appeal of New Zealand in Christensen v Scott at p 280, lines 25 ‑ 35, can be reconciled with this statement of principle.'

1. As Bathurst CJ noted,[285] Lord Bingham's formulation of the principle in Johnson v Gore Wood was accepted by the majority in the recent decision of the United Kingdom Supreme Court in Marex Financial Ltd v Sevilleja.[286]
2. In Central Coast Council v Norcross Pictorial Calendars, the appellant submitted that the exception to the principle - that the shareholder can recover for loss to the value of his shares in the company as a result of damage suffered by the company where the shareholder but not the company has a cause of action - should not be accepted. Bathurst CJ rejected that submission, saying as follows:[287]

There seems to be no reason for the principle to apply to circumstances where the company has no cause of action to recover the loss. This is so regardless of the rationale of the principle. If the purpose is to prevent double recovery, there is no prospect of double recovery where the company has no cause of action. If is [sic] as I conceive it, the principle is based on the rule in Foss v Harbottle that only the company can sue for a wrong done to the company, the principle is not outflanked because there is no actionable wrong done to the company, the company having no cause of action. If, as Perram J suggests, it is associated with the doctrine of maintenance of capital, there is no reduction of capital if a shareholder recovers funds that the company as a matter of law cannot recover. Finally, there is no policy reason not to impose such an exception.

1. In the discussion of these principles in George Fischer (Great Britain) Ltd v Multi Construction Ltd, Dexion Ltd,[288] a case in which the plaintiff shareholder, but not the company, had a cause of action against the defendant (and, thus, the shareholder's claim was permitted), the Court of Appeal of England and Wales did not draw any distinction between where the plaintiff shareholder's cause of action was in contract (as in that case) and where the shareholder may have a cause of action in, say, tort. Indeed, the Court of Appeal held that the principle to be derived from Prudential Assurance applies 'just as much in relation to damages for breach of contract as it does in tort'.[289]
2. The 'reflective loss' principles were also applied in relation to claims in contract in Sutherland v GHR Accounting (No 3).[290] In that case, the plaintiff shareholder and the company both allegedly had claims in contract against the defendant. The plaintiff was the shareholder and controlling mind and will of a company (Q Company). The plaintiff had sought advice from accountants in relation to borrowings undertaken by Q Company from a bank. Q Company defaulted on the loan, went into liquidation, and was deregistered. The plaintiff subsequently brought proceedings against the accountants, alleging that they owed and breached duties to the plaintiff and Q Company to provide prudent financial advice and to exercise due care and skill. The claims alleged both breaches of contract and breaches of the general law duty of care. The loss claimed was, relevantly, the plaintiff's loss of income from Q Company. The judge applied the principles of reflective loss, as explained above, and struck out the plaintiff's pleading. However, his Honour gave leave to re‑plead, effectively on the basis that on the materials before the court, the plaintiff (who was self‑represented) might have had a claim other than for reflective loss in his capacity as guarantor and mortgagor in relation to the borrowings.
3. It is true that in 2002, the Full Court of the Federal Court in Harris referred to the 'unsettled state of the law in this area'.[291] However, the law has been accepted and settled since then by intermediate appellate courts in Queensland and New South Wales. The court in Harris also said that 'whatever the rule, it is concerned with the situation in which the relevant company has a cause of action arising out of the same facts as founding the shareholder's claim'.[292] If and insofar as that is said to be a relevant criterion, that criterion is satisfied in this case. Further, unlike in Harris,[293] in the present case, like in Thomas v D'Arcy,[294] the pleading makes the nature of the personal claim crystal clear. There can be no possible doubt that Mr Palmer's claimed loss is entirely reflective of Mineralogy's loss.
4. The 1995 New Zealand case of Christensen has been expressly not followed by the Queensland Court of Appeal in Thomas v D'Arcy,[295] by the House of Lords in Johnson,[296] and, by necessary implication, by the New South Wales Court of Appeal in Chen[297] and Ekes.[298] It is, with respect, inconsistent with the common law of Australia.
5. Further, the decision in K & J Acquisitions concerned proceedings in which it was alleged that the company's claim was the primary claim, and that the shareholder's claim was in the alternative in the event that the company had no cause of action. In the present case, it is not suggested that Mineralogy has no cause of action under cl 11 of the FC Deed. Rather, Mr Palmer's claim proceeds on the basis that Mineralogy has a cause of action, but is precluded from suing on it, because to do so would constitute an abuse of the court's processes by Mineralogy.
6. The principles emerging from the authorities may be summarised as follows:
   1. Where a company suffers loss caused by a breach of duty owed to it, only the company may sue in respect of that loss. No action lies at the suit of a shareholder to make good a diminution of the value of the shareholder's shareholding where that loss merely reflects the loss suffered by the company.[299]
   2. This will be so even if the company has declined or failed to take action to recover the loss.[300]
   3. If the company suffers loss, but has no cause of action to sue to recover that loss, a shareholder with a cause of action who suffers loss to the value of his shares may sue in respect of it.[301]
   4. The reflective loss principle does not prevent a shareholder suing for a loss suffered from a breach of duty owed to him or her where the loss is separate and distinct from the loss suffered by the company.[302]
   5. The principle extends to the case where both the company and the shareholder have a claim for breach of duty[303] or breach of contract which caused the loss.[304]
7. The principle has been said to be 'driven by policy considerations'.[305] The rationale for the principle has been described as the prevention of double recovery, the application of the rule in Foss v Harbottle,[306] or the maintenance of the capital of a company. In Central Coast Council v Norcross Pictorial Calendars, Bathurst CJ suggested that the principle was based on the rule in Foss v Harbottle.[307]
8. We do not see, at least in the present context, a relevant distinction between, on the one hand, claims by each of the shareholder and company for an indemnity against loss, and, on the other hand, claims by each of the shareholder and the company for damages for breach of a tortious or contractual duty. In each case, the company's assets relevantly encompass the value of the chose in action, whatever that may be, and recovery by the shareholder on his or her claim would either diminish the company's assets to that extent, or result in double recovery against the defendant. The application of the reflective loss principle to cases where both the company and the shareholder have a cause of action for breach of tortious duty or contract demonstrates that, notwithstanding that the principle may have roots in the rule in Foss v Harbottle, it is not merely a standing issue and is not rendered inapplicable by the mere fact that the shareholder has a distinct cause of action. That being so, we do not accept Mr Palmer's submission that the fact that cl 11.5(c) gives him an independent right of indemnity takes his case outside of the reflective loss principle.
9. The result is that, in accordance with the policy of the law, any cause of action by Mr Palmer under cl 11.5(c) by way of indemnity could not, and would not, encompass a claim to recover the loss he suffered or incurred as a shareholder which is merely reflective of the loss suffered or incurred by Mineralogy against which Mineralogy is indemnified under cl 11.5(c) of the FC Deed. As already noted, the claim pleaded by Mr Palmer is wholly and unambiguously of that character. Also, as already noted, Mr Palmer's claim proceeds on the basis that Mineralogy has a cause of action (but is precluded from suing on it).
10. The next question is whether the fact that Mineralogy's claims against CITIC under cl 11.5(c) of the FC Deed and/or against Sino/Korean under cl 6.3 of the Agreements are precluded, as an abuse of process, alters that result. The answer, in our view, is no. This is not a case, of the character referred to in [268(3)] above, where the company had no cause of action. On the principles referred to above, Mr Palmer's claims as the shareholder of Mineralogy could no more be enhanced by Mineralogy's preclusion of its own claims as an abuse of process than where the enforcement of Mineralogy's rights were prevented by, eg, the operation of a limitation period, or where, more generally, in the exercise of his control over Mineralogy, Mr Palmer failed to cause it to make a claim or deliberately prevented Mineralogy from pursuing its claims against Sino/Korean under cl 6.3 of the Agreements and/or its rights of indemnity against CITIC under cl 11.5(c) of the F[308]Deed.308
11. Mr Palmer's contention as to the construction of cl 11.6(b) of the FC Deed does not assist him. The plain meaning and effect of cl 11.6(b) is (relevantly) that CITIC's obligations under cl 11.5(c) are not discharged or affected by anything which, by operation of the general law, might otherwise have that result (including the particular matters specified between parentheses in cl 11.6(b) of the FC Deed). Clause 11.6 is of the character referred to in [252] above.
12. The court's inherent jurisdiction to control its own processes is not an aspect of the operation of the general law discharging or otherwise affecting guarantees and indemnities. The principles of abuse of process have been referred to in [159] ‑ [180] above. In addition, the following observations in Batistatos make it plain that the power to deal with an abuse of process involves the regulation of the court's own procedures in relation to causes of action or alleged cau[309] of action before it:309

'The powers to prevent an abuse of process have traditionally been seen as including a power to stay proceedings instituted for an improper purpose, as well as proceedings that are "frivolous, vexatious or oppressive". This notwithstanding, there is no very precise notion of what is vexatious or oppressive or what otherwise constitutes an abuse of process. Indeed, the courts have resisted, and even warned against, laying down hard and fast definitions in that regard. That is necessarily so. Abuse of process cannot be restricted to "defined and closed categories" because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case. That is not to say that the concept of "abuse of process" is at large or, indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose and it is clear that it extends to proceedings that are "seriously and unfairly burdensome, prejudicial or damaging" or "productive of serious and unjustified trouble and harassment".'

Earlier, in Rogers v The Queen, McHugh J observed:

'Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute.'

'Many, perhaps the majority of, cases of abuse of procedure arise from the institution of proceedings. But any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the court's process.'

To that it should be added that the power to deal with procedural abuse extends to the exclusion of particular issues which are frivolous and vexatious. Further, the failure to take, as well as the taking of, procedural steps and other delay in the conduct of proceedings are capable of constituting an abuse of the process of the court. (emphasis added) (footnotes omitted)

1. We would understand the italicised reference in the preceding passage to encompass claims which fail to disclose a reasonably arguable cause of action.[310]
2. There is no tenable argument that cl 11.6(b) of the FC Deed expressly or impliedly provides that CITIC is liable to indemnify Mr Palmer under cl 11.5(c) in circumstances where the pursuit by Mr Palmer of an indemnity claim under cl 11.5(c) itself constitutes an abuse of the court's processes, or where the claim fails to disclose a reasonably arguable cause of action.
3. In summary, because it claimed no more than the loss to Mr Palmer of the value of his (beneficial) shareholding in Mineralogy, simply reflecting the loss suffered by that company, Mr Palmer's claim in CIV 3129, as formulated and explained to the primary judge and in this court, disclosed no reasonably arguable cause of action. There is no plea, and no suggestion, that Mr Palmer has any separate and independent substantive loss claim.
4. The same result could be reached (although it is not necessary to do so for present purposes) by construing, in the broader legal context in which the FC Deed was entered into, the words 'any loss suffered ... or incurred by [Mr Palmer]' in cl 11.5(c) as referring, relevantly, to any loss other than a loss merely reflective of the loss suffered or incurred by Mineralogy from the non‑performance by Sino and Korean of the cl 6.3 obligations in the Agreements.
5. Ordinarily, the conclusions in [277] above would sustain an order striking out the statement of claim and, in the absence of any suggestion that Mr Palmer has any separate and independent substantive loss claim, or any suggestion that Mineralogy seeks nominal damages for breach of cl 11.5(c), prima facie there would be no occasion to order leave to re‑plead. However, in the particular circumstances of this case, these conclusions, together with other matters outlined below, combine to sustain the further conclusion that Mr Palmer's claim should be permanently stayed as an abuse of process.
6. The starting point is that, as already found, Mineralogy's claim is an abuse of the processes of the court.
7. Two singular features of Mr Palmer's claim are of critical significance. First, Mr Palmer's claim is advanced contingently: it is advanced only if the court finds that Mineralogy is precluded from prosecuting its claim. Secondly, Mr Palmer's claim is, wholly and unambiguously, for his loss as the beneficial shareholder of Mineralogy, reflecting Mineralogy's loss. As already concluded, the reflective loss principle manifests the policy of the law to firmly preclude such a claim.
8. Thus, the objective effect of Mr Palmer's claim is to avoid the effect of the court's stay of the Mineralogy proceedings.
9. In this combination of circumstances, for the court to permit Mr Palmer to maintain proceedings that advance what is, in substance, nothing more than Mineralogy's claim would be to permit Mr Palmer to outflank the court's exercise of power to prevent the abuse of its processes by the institution and maintenance of Mineralogy's claim. In the circumstances, to so permit Mr Palmer to maintain his claim would serve to bring the administration of justice into disrepute in the sense explained in the outline of the principles concerning abuse of process.
10. The notice of contention should accordingly be upheld.
11. That is sufficient to require Mr Palmer's appeal to be dismissed. However, for completeness we will deal with the grounds of appeal.
12. If Mr Palmer's claim for an indemnity under cl 11.5 of the FC Deed disclosed no reasonably arguable cause of action, it could not be said that the claim could and should have been part of the litigation in CIV 1808. There could be no reasonable expectation that he would have run, in CIV 1808, a claim which disclosed no reasonable cause of action. It would be otherwise if it was assumed (contrary to the conclusion above) that Mr Palmer's claim under cl 11.5 of the FC Deed disclosed a reasonably arguable cause of action and, in particular, that it claimed loss distinct from his loss reflective of Mineralogy's loss. What follows in [287] ‑ [294] is written on that assumption.
13. Although CITIC was a party to CIV 1808, Mr Palmer was not. In that respect, Mr Palmer was unlike Mr Tyne and his entities in the Supreme Court proceedings in UBS. Mr Palmer's claim under cl 11.5 of the FC Deed was never a claim ventilated in CIV 1808. Correspondingly, that claim was not expressly or by necessary implication deleted, withdrawn or abandoned in CIV 1808 pursuant to the conduct referred to at [50] ‑ [99] above. Accordingly, the reasoning referred to at [181] ‑ [195] above has no direct application to Mr Palmer's claim under cl 11.5(c) of the FC Deed.
14. The question then becomes whether other considerations justified the conclusion that the pursuit of Mr Palmer's claims under cl 11.5 of the FC Deed constituted an abuse of procedures of the court.
15. At the outset, it should be observed that it would not be correct to reason that, having created the circumstances of the abuse by Mineralogy, Mr Palmer should be regarded as a 'miscreant' who should be 'punished' by a permanent stay of his proceedings.[311]
16. Where an individual plaintiff has sued a defendant and lost on the merits, and has subsequently brought proceedings by the plaintiff's company (of which the plaintiff was the directing mind and will) against the same defendant with respect to essentially the same issues, the subsequent proceedings in the name of the company may be permanently stayed as an abuse: Sheraz Pty Ltd v Vegas Enterprises Pty Ltd.[312] In that case, an individual, Mr Clifford, caused his trustee company (Sheraz) to acquire shares in another company (Vegas). Mr Clifford commenced proceedings in the Federal Court of Australia against Vegas and its directors in relation to alleged misleading or deceptive conduct. The action was dismissed. Thereafter, Mr Clifford caused Sheraz to bring its own proceedings against Vegas in the Supreme Court of Western Australia, again alleging essentially the same misleading or deceptive conduct by Vegas. The subsequent proceedings by Sheraz were dismissed by Master Sanderson as an abuse of process, and this court dismissed an appeal by Sheraz against that decision. The court found an abuse of process on the basis that any such proceedings by Sheraz could and should have been brought in the earlier Federal Court proceedings:[313]

In all the circumstances, the continuation of the Supreme Court action would plainly have been seriously and unfairly burdensome or unjustifiably oppressive to Vegas. Sheraz was the alter ego of Mr Clifford, and Mr Clifford at all material times controlled Sheraz. Sheraz's claim could and should have been litigated in the Federal Court in connection with, in the sense of at least immediately following, Mr Clifford's claims with appropriate orders concerning the commonality of evidence. The result would have been that all of the claims of Sheraz and Mr Clifford would have been heard and determined effectively at the one time and with minimal additional time, cost and expense. The additional time, cost and expense would have been insignificant compared with the time, cost and expense involved with the pursuit of the Supreme Court action.

1. However, the Sheraz decision is not analogous to the present case, as the substance of the Clause 6.3 Claims have never been determined on their merits through any entity associated with Mr Palmer.
2. There remains, more generally, the question of whether it was unreasonable for Mr Palmer not to apply, at or around the directions hearing on 20 January 2017, to be joined as a party to CIV 1808 to run a claim under cl 11 of the FC Deed. The following matters point to it not being unreasonable:
   1. Mr Palmer had his own (assumed) reasonably arguable cause of action under the FC Deed.
   2. CIV 1808 had been on foot for several years, and Mineralogy had effectively confined the issues in CIV 1808 by excluding the Clause 6.3 Claims.
   3. The litigation by Mr Palmer of his claim under cl 11 of the FC Deed would have added weeks to a trial (through the incorporation of the litigation of the Clause 6.3 Claims).
   4. Both sides in CIV 1808 (Mineralogy and the CITIC defendants) were (as the judge found) otherwise ready for an expedited trial on the confined issues in June 2017.
3. On the other hand, if Mr Palmer, who was not a party to CIV 1808, later commenced proceedings under cl 11 of the FC Deed in relation to the non‑performance of Sino/Korean's obligations under cl 6.3 of the Agreements, there might be the risk (looking at the matter prospectively as at 20 January 2017) that he might litigate afresh, in his personal action under cl 11.5 of the FC Deed, the proper construction and application of the Royalty B provisions in the event that Mineralogy received an unfavourable result in CIV 1808. If that were to occur, and if no estoppel arose,[314] it could 'give rise to the perception that the administration of justice is inefficient, careless of costs, and profligate in its application of public moneys'.[315] However, in the present context that matter has no material weight. In CIV 3129, Mr Palmer pleaded that the amounts payable under cl 6.3 of the Agreements (the 'Minimum Royalty') were as found by the primary judge in Mineralogy [No 16].[316] Accordingly, Mr Palmer's pleading proceeds on the basis of the findings in CIV 1808 in relation to the Royalty B component of his claim under cl 11 of the FC Deed. No duplication of resources is involved and there is no prospect of inconsistent decisions.
4. On the assumption referred to in [286] above, having regard to the matters in [286] ‑ [293] above, this could not be said to be an extreme or exceptional case, which required the [317]rt, as a matter of 'last resort',317 to permanently stay Mr Palmer's claim for an indemnity under cl 11 of the FC Deed.
5. Turning then to the grounds of appeal, if the judge considered that Mr Palmer's action under cl 11.5 of the FC Deed in CIV 3129 ought to be stayed as an abuse of process by way of analogy with Mr Tyne in the circumstances in UBS, and based on the reasoning of the majority in UBS, his Honour would have been in error on the basis that he either misapprehended the principles or mischaracterised the facts. However, having regard to the matters in [271] ‑ [272], [277] and [280] ‑ [2[318]] above, we are not persuaded that error is disclosed,318 with the result that ground 1 fails. More fundamentally, ground 1 is overtaken by the success of the notice of contention. Nevertheless, a consequence of the failure of ground 1 is that Mr Palmer's assertion in ground 1 that, insofar as the judge found an abuse of process by Mr Palmer in his bringing of an indemnity claim under cl 11.5(c) in CIV 3129, the finding was not open, is not made out.
6. It is unnecessary to address ground 2.
7. Grounds 3, 4 and 5 concern the judge's finding that Mr Palmer's cause of action was untenable on the basis that it was 'causatively attributable, solely and exclusively, to the abuse of process conduct by Mineralogy which itself has been occasioned at the behest of Mr Palmer'.[319] It is not necessary to consider the question of whether a claim in respect of the indemnity under cl 11.5(c) of the FC Deed would sound in damages (and, if so, whether there would be issues of causation and remoteness) or would result in a claim in debt.[320] For present purposes, it is sufficient to observe that the primary decision, with respect, fails adequately to disclose his Honour's reasons as to why Mr Palmer would have no reasonably arguable cause of action under cl 11.5(c) of the FC Deed above and beyond the absence of a reasonable cause of action based on the reflective loss point. There needed to be, with respect, some analysis of the phrase 'in relation to' (a phrase ordinarily of considerable width)[321] in the context of a consideration of the proper construction of cl 11.5(c) as a whole and in the context of the FC Deed as a whole and an application of that analysis to the pleading in the statement of claim. Putting aside the reflective loss point, there needed to be some reasoning explaining why, if Mr Palmer proved that Sino/Korean had not performed their cl 6.3 obligations under the Agreements, the loss he suffered would not be 'in relation to' the failure by Sino/Korean to perform such obligations under the Agreements, even if Mineralogy's claim under cl 11.5(c) were itself precluded by abuse of process principles. For this reason, we would uphold ground 4 and, allied with it, ground 5. Contrary to the CITIC parties' submissions (see [245] above), the judge's reference at [186] of the primary decision does not, with respect, engage with Mineralogy's submissions on this point.
8. As to ground 3, although Mr Palmer's claim disclosed no reasonably arguable cause of action on the basis that it was a claim for reflective loss, the judge's reasons did not deal with that point and did not otherwise explain why Mr Palmer would fail at the level of 'causation'. In the absence of reasoning by his Honour on that point, it is unnecessary and inappropriate to resolve ground 3.

1. It is unnecessary to decide whether leave is required. That is because even if leave were required, it would be appropriate to grant leave having regard to the significance of the issues raised in the context of the administration of justice, and the effect of the primary decision on the rights of the appellants.
2. The orders should be:
   1. To the extent that leave is required, leave is granted in each appeal.
   2. Mineralogy's appeal (CACV 27 of 2020) is dismissed.
   3. In Mr Palmer's appeal (CACV 29 of 2020), the respondents' notice of contention is allowed.
   4. Mr Palmer's appeal (CACV 29 of 2020) is dismissed.

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

Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza

[1] Mineralogy Pty Ltd v Sino Iron Pty Ltd [2020] WASC 40 (primary decision).

[3] Mr Palmer placed reliance on s 11(2) of the Property Law Act 1969 (WA).

[5] Primary decision [29], [76], [80], [105], [109] - [128].

[7] Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 16] [2017] WASC 340.

[9] Sino Iron Pty Ltd v Mineralogy Pty Ltd [2019] WASCA 80; (2019) 55 WAR 89.

[10] Primary decision [83] - [92]; see Mineralogy Pty Ltd v Sino Iron Pty Ltd [2015] WASC 454.

[20] See, generally, primary decision [109] - [130].

[21] Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 13] [2016] WASC 403.

[22] That decision of the judge was overturned in this court in Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76.

[23] Mineralogy [No 13] [218] - [237].

[27] Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 14] [2017] WASC 17.

[31] Primary decision [186] - [187].

[32] Primary decision [188] - [189].

[36] Including its then pleaded restitution claim and the Agreements 'rectification' arguments: primary decision [192].

[37] Primary decision [192] - [193].

[38] Primary decision [194] - [195].

[43] Primary decision [199] - [201].

[49] Primary decision [206] - [207].

[52] Primary decision [209] - [210].

[53] Primary decision [211] - [212].

[55] Primary decision [183], [213].

[56] Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 3] [2013] WASC 434.

[57] Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 8] [2015] WASC 473.

[58] Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105.

[59] O'Donahoo affidavit, par 29; GB 124. Affidavit of Kane Christopher Jones affirmed 17 January 2017, filed in CIV 1808 of 2013 on 17 January 2017 as folio document 428, Annexure KCJ-04 (incorrectly listed in the index as Annexure KCJ-05).

[60] O'Donahoo affidavit, par 30; GB 124. Affidavit of Kane Christopher Jones affirmed 17 January 2017, filed in CIV 1808 of 2013 on 17 January 2017 as folio document 428, Annexure KCJ-08.

[61] O'Donahoo affidavit, par 32; GB 125. Affidavit of Kane Christopher Jones affirmed 17 January 2017, filed in CIV 1808 of 2013 on 17 January 2017 as folio document 428, Annexure KCJ-09.

[62] O'Donahoo affidavit, par 31; GB 124 - 125. Affidavit of Kane Christopher Jones affirmed 17 January 2017, filed in CIV 1808 of 2013 on 17 January 2017 as folio document 428, Annexures KCJ‑10 and KCJ‑11.

[63] O'Donahoo affidavit, par 33; GB 125. Affidavit of Kane Christopher Jones affirmed 17 January 2017, filed in CIV 1808 of 2013 on 17 January 2017 as folio document 428, Annexure KCJ-19.

[64] O'Donahoo affidavit, par 34; GB 125. Affidavit of Kane Christopher Jones affirmed 17 January 2017, filed in CIV 1808 of 2013 on 17 January 2017 as folio document 428, Annexure KCJ-23.

[65] O'Donahoo affidavit, par 35; GB 125. Affidavit of Kane Christopher Jones affirmed 17 January 2017, filed in CIV 1808 of 2013 on 17 January 2017 as folio document 428, Annexure KCJ-20.

[66] O'Donahoo affidavit, par 36; GB 126. Affidavit of Kane Christopher Jones affirmed 17 January 2017, filed in CIV 1808 of 2013 on 17 January 2017 as folio document 428, Annexure KCJ-25.

[67] O'Donahoo affidavit, par 37; GB 126. Affidavit of Kane Christopher Jones affirmed 17 January 2017, filed in CIV 1808 of 2013 on 17 January 2017 as folio document 428, Annexure KCJ-36.

[68] O'Donahoo affidavit, par 39; GB 126.

[69] O'Donahoo affidavit, par 40; GB 126. Affidavit of Kane Christopher Jones affirmed 17 January 2017, filed in CIV 1808 of 2013 on 17 January 2017 as folio document 428, Annexure KCJ-46.

[70] O'Donahoo affidavit, par 42; GB 126 - 127. Affidavit of Kane Christopher Jones affirmed 17 January 2017, filed in CIV 1808 of 2013 on 17 January 2017 as folio document 428, Annexure KCJ-74.

[71] See, for example, Mineralogy [No 13] [223] ‑ [225].

[72] O'Donahoo affidavit, par 44; GB 127. Affidavit of Ian Peter Scott O'Donahoo sworn 17 January 2017 in response to Plaintiff's chamber summons dated 21 December 2016, filed in CIV 1808 of 2013 on 19 January 2017, Annexure POD-3.

[73] C Palmer affidavit affirmed 14 December 2016, pars 3 - 10, 33 - 40; GB 311 - 312, 314 - 315.

[74] Transcript of directions hearing on 14 December 2016, ts 1888 ‑ 1889; GB 319 - 320.

[75] O'Donahoo affidavit, par 48; GB 128. Affidavit of Ian Peter Scott O'Donahoo sworn 17 January 2017 in response to Plaintiff's chamber summons dated 21 December 2016, filed in CIV 1808 of 2013 on 19 January 2017, Annexure POD-14.

[76] C Palmer affidavit affirmed 21 December 2016, pars 11 - 19, 26 - 31, 56; GB 323 - 326, 330.

[78] O'Donahoo affidavit, par 50; GB 128. See GB 334, 339. Affidavit of Ian Peter Scott O'Donahoo sworn 17 January 2017 in response to Plaintiff's chamber summons dated 21 December 2016, filed in CIV 1808 of 2013 on 19 January 2017, Annexure POD-17.

[79] O'Donahoo affidavit, par 51; GB 129. See GB 352 - 353. Affidavit of Ian Peter Scott O'Donahoo sworn 17 January 2017 in response to Plaintiff's chamber summons dated 21 December 2016, filed in CIV 1808 of 2013 on 19 January 2017, Annexure POD-18.

[80] O'Donahoo affidavit, par 54; GB 129 - 130. See GB 357 - 360. Affidavit of Ian Peter Scott O'Donahoo sworn 13 January 2017, filed in CIV 1808 of 2013 on 18 January 2017, Annexure POD-8; affidavit of Ian Peter Scott O'Donahoo sworn 17 January 2017 in response to Plaintiff's chamber summons dated 21 December 2016, filed in CIV 1808 of 2013 on 19 January 2017, Annexure POD-19.

[81] O'Donahoo affidavit, par 56; GB 130. Affidavit of Ian Peter Scott O'Donahoo sworn 13 January 2017, filed in CIV 1808 of 2013 on 18 January 2017, Annexure POD-10.

[82] Mineralogy's written submissions filed 16 January 2017, pars 49 - 53; GB 373 - 374.

[83] C Palmer affidavit affirmed 16 January 2017, pars 37 - 44, 46 - 49; GB 388 - 389.

[84] O'Donahoo affidavit, par 59; GB 130 - 131. CITIC defendants' outline of submissions filed 17 January 2017, pars 48, 51, 119.

[85] O'Donahoo affidavit, par 60; GB 131. Letter from Allens to Mineralogy dated 19 January 2017, handed up in court and filed in CIV 1808 of 2013 on 20 January 2017 (as folio doc 438).

[86] This affidavit is dated 17 January 2016, but was manually amended on the original document to reflect the correct date of 17 January 2017. Note that another affidavit by Kane Christopher Jones affirmed on 17 January 2017 was also filed on the same date (as folio document 426), but this affidavit is different in substance and not relevant for present purposes.

[95] Mineralogy [No 14] [24] - [27], [46], [58] - [60].

[96] Appellant's written submissions, pars 15 - 16; CACV 27 of 2020, WB 7. Reference was made to Tyne v UBS AG [2016] FCA 241; (2016) 338 ALR 624 [31] ‑ [34].

[97] Respondents' written submissions, par 3; CACV 27 of 2020, WB 28. Reference was made to Port of Melbourne Authority v Anshun Pty Ltd (No 1) [1980] HCA 41; (1980) 147 CLR 35, 37 ‑ 38; Kermani v Westpac Banking Corporation [2012] VSCA 42; (2012) 36 VR 130 [89] ‑ [90].

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

[99] Appellant's written submissions, par 17; CACV 27 of 2020, WB 7 - 8.

[100] Respondents' written submissions, par 4; CACV 27 of 2020, WB 29.

[101] Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [7]; UBS AG v Tyne [2018] HCA 45; (2018) 265 CLR 77 [74]; compare Minister for Immigration v SZVFW [2018] HCA 30; (2018) 264 CLR 541 [145]; UBS [123]; Stuart v Goldberg Linde [2008] EWHC 2325; [2008] 1 WLR 823 [24], [43], [76], [81].

[102] Appellant's grounds of appeal; CACV 27 of 2020, WB 5 - 6.

[103] Appellant's written submissions, par 12; CACV 27 of 2020, WB 7.

[104] Appellant's written submissions, par 64; CACV 27 of 2020, WB 19.

[105] Appellant's written submissions, pars 59 - 60; CACV 27 of 2020, WB 16 - 18.

[106] Appellant's written submissions, pars 57, 61; CACV 27 of 2020, WB 16, 18.

[107] Appellant's written submissions, pars 61 - 62; CACV 27 of 2020, WB 18.

[108] Appellant's written submissions, par 63; CACV 27 of 2020, WB 19.

[109] Respondents' written submissions, par 11; CACV 27 of 2020, WB 31 citing UBS [1].

[110] Respondents' written submissions, par 12; CACV 27 of 2020, WB 31.

[111] Respondents' written submissions, pars 13 - 17, 34; CACV 27 of 2020, WB 31, 38.

[112] Respondents' written submissions, par 34; CACV 27 of 2020, WB 38.

[113] Respondents' written submissions, par 21; CACV 27 of 2020, WB 32.

[114] Reference is made to [68(m)], [68(o)], [128], [131], [156.39], [156.42], [156.56], [158(c)], [186] - [193], [197] - [198], [201], [206], [208] ‑ [209], [212] - [213].

[115] Respondents' written submissions, par 33; CACV 27 of 2020, WB 38.

[116] Respondents' written submissions, pars 20 - 23; CACV 27 of 2020, WB 34 - 35.

[117] Citing UBS [46], referred to at [68(m)] of the primary decision.

[121] Respondents' written submissions, par 25; CACV 27 of 2020, WB 36.

[122] Respondents' written submissions, pars 26 - 27; CACV 27 of 2020, WB 36.

[123] Respondents' written submissions, par 28; CACV 27 of 2020, WB 37.

[124] Respondents' written submissions, par 29; CACV 27 of 2020, WB 37.

[125] Respondents' written submissions, par 30; CACV 27 of 2020, WB 37.

[126] Respondents' written submissions, par 31; CACV 27 of 2020, WB 37.

[127] Appellant's written submissions, pars 65 - 66; CACV 27 of 2020, WB 19 with reference to [184] ‑ [192], [194], [211] - [212] of the primary decision.

[128] Appellant's written submissions, par 67; CACV 27 of 2020, WB 19.

[129] Appellant's written submissions, pars 68 - 69; CACV 27 of 2020, WB 19 - 20.

[130] Appellant's written submissions, par 70; CACV 27 of 2020, WB 20.

[131] Respondents' written submissions, par 36; CACV 27 of 2020, WB 38.

[132] Johnson v Gore Wood & Co [2002] 2 AC 1.

[133] Respondents' written submissions, par 41; CACV 27 of 2020, WB 39.

[134] Respondents' written submissions, pars 43 - 44; CACV 27 of 2020, WB 40.

[135] Respondents' written submissions, par 38; CACV 27 of 2020, WB 39.

[136] Appellant's written submissions, par 77; CACV 27 of 2020, WB 21.

[137] Appellant's written submissions, par 79; CACV 27 of 2020, WB 21 - 22.

[138] Appellant's written submissions, par 80; CACV 27 of 2020, WB 22.

[140] Appellant's written submissions, par 82; CACV 27 of 2020, WB 22.

[141] Appellant's written submissions, par 84; CACV 27 of 2020, WB 23.

[142] Appellant's written submissions, pars 86 - 87; CACV 27 of 2020, WB 23.

[143] Respondents' written submissions, pars 50 - 51; CACV 27 of 2020, WB 43.

[144] Respondents' written submissions, par 51; CACV 27 of 2020, WB 43.

[145] Respondents' written submissions, par 53; CACV 27 of 2020, WB 43.

[146] Respondents' written submissions, par 54; CACV 27 of 2020, WB 44.

[147] Respondents' written submissions, par 56; CACV 27 of 2020, WB 44.

[148] Appellant's written submissions, par 88; CACV 27 of 2020, WB 23.

[149] Respondents' written submissions, par 57; CACV 27 of 2020, WB 44.

[150] Appellant's written submissions, par 91; CACV 27 of 2020, WB 24.

[151] Appellant's written submissions, par 93; CACV 27 of 2020, WB 24.

[152] Respondents' written submissions, pars 59 - 61; CACV 27 of 2020, WB 45.

[153] Respondents' written submissions, pars 62 - 64; CACV 27 of 2020, WB 45 - 46.

[154] Respondents' written submissions, pars 65 - 66; CACV 27 of 2020, WB 46 - 47.

[155] Respondents' written submissions, pars 67 - 69; CACV 27 of 2020, WB 47.

[156] Dow Jones & Co Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575 [63].

[157] Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538, 554; Victoria International Container Terminal Ltd v Lunt [2021] HCA 11; (2021) 95 ALJR 363 [25].

[158] Dow Jones [36] (Gleeson CJ, McHugh, Gummow & Hayne JJ).

[159] Victoria International [19], [37].

[161] Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 392 - 393; Deep Investments Pty Ltd v Casey [2018] FCA 603; (2018) 125 ACSR 564 [190].

[163] Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 [24].

[164] Batistatos [9]; Tomlinson [25]; UBS [1].

[165] Tomlinson [25]; Timbercorp Finance Pty Ltd (in liq) v Collins [2016] HCA 44; (2016) 259 CLR 212 [69]; UBS [1]; Victoria International [14]; O'Shane v Harbour Radio Pty Ltd [2013] NSWCA 315; (2013) 85 NSWLR 698 [105], [112].

[171] Victoria International [21]; Strickland v Director of Public Prosecutions (Cth) [2018] HCA 53; (2018) 266 CLR 325 [85].

[175] Clayton v Bant [2020] HCA 44; (2020) 95 ALJR 34 [31].

[176] Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589, 603.

[177] UBS [38], [40], [45] - [46]. The observations were made with respect to a provision applicable to the Federal Court which is broadly of the character of O 1 r 4A and r 4B of the Rules of the Supreme Court 1971 (WA).

[184] UBS [95], [98] - [99], [104], [117].

[193] Timbercorp Finance [70] - [73].

[194] Timbercorp Finance [124], [129], [132], [137], [145].

[195] Supreme Court Practice Direction 4.1.2.8 - 4.1.2.9.

[196] Supreme Court Practice Direction 4.1.2.3(c).

[197] See the reference to 'Notwithstanding Mineralogy's position in its letter dated 28 December 2016 and without prejudice to such position' in the part preceding the undertaking in Mineralogy's letter to Allens dated 12 January 2017. See also the similar reference in par 49 of Mineralogy's submissions dated 16 January 2017.

[199] Primary reasons [201], [204].

[200] See the passages of the judgment in Mineralogy [No 14] referred to in [110] above.

[201] See [51] - [52] above.

[202] See [51] - [93] above.

[203] See [51] - [55] above.

[204] See [58] above.

[205] See [62] - [65] above.

[206] See [67] above.

[207] See [70] above.

[208] See [11] above.

[211] The Commonwealth of Australia v Verwayen [1990] HCA 39; (1990) 170 CLR 394, 482.

[214] Using the language adopted in Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [89].

[216] See, for example, primary reasons [109] - [126], [154], [156], [197], [199], [201] ‑ [202].

[218] See, in particular, primary decision [57], [65], [67] - [68], [70], [161], [170], [183], [209], [213], [217].

[220] 'Project Agreements' is defined in cl 1.1 of the FC Deed to include the Agreements, and thus includes cl 6.3 of the Agreements.

[221] See pars 20 - 27, 45 - 47, 56 - 58; BB 77 - 78, 85, 88 - 90.

[222] The 'Minimum Royalty' was defined in the pleading as, in effect, the total of the sums allegedly payable by Sino and Korean under cl 6.3 of the Agreements: par 58; BB 89.

[223] CITIC parties' outline of submissions filed 13 June 2019 in CIV 3129: GB 429 - 434.

[224] UBS [45], [53] - [54], [73], [77] - [81].

[225] ts 47, hearing 25 September 2019; CITIC parties' outline of submissions filed 13 June 2019 in CIV 3129: pars 127(a), 128 ‑ 133; GB 432 - 433.

[226] CITIC parties' outline of submissions filed 13 June 2019 in CIV 3129: par 127(b); GB 432.

[227] Order 20 r 19(1) of the RSC provides, relevantly:

(1) The Court may at any stage of the proceedings, subject to subrule (3), order to be struck out or amended any pleading, or the indorsement of any writ in the action, or anything in any pleading or in the indorsement on the ground that -

(a) it discloses no reasonable cause of action or defence, as the case may be; or

(d) it is otherwise an abuse of the process of the Court,

and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

(1) Any defendant to an action may within 21 days after appearance or at any later time by leave of the Court, apply to the Court for summary judgment, and the Court, if satisfied that the action is frivolous or vexatious, that the defendant has a good defence on the merits, or that the action should be disposed of summarily or without pleadings, may order -

(a) that judgment be entered for the defendant with or without costs[.]

[228] ts 47, hearing 25 September 2019.

[229] CITIC parties' outline of submissions filed 13 June 2019 in CIV 3129: pars 136 - 139; GB 434.

[230] ts 95 - 96, hearing 25 September 2019.

[231] Primary decision [20] - [24].

[232] Primary decision [213] - [216].

[233] Appellant's written submissions, pars 16 - 17; CACV 29 of 2020, WB 9 - 10.

[234] Appellant's written submissions, par 18; CACV 29 of 2020, WB 10.

[235] Appellant's written submissions, pars 19 - 20; CACV 29 of 2020, WB 10.

[236] Respondents' written submissions, par 16; CACV 29 of 2020, WB 19.

[237] Respondents' written submissions, pars 6, 17; CACV 29 of 2020, WB 16, 19.

[238] Respondents' written submissions, par 8; CACV 29 of 2020, WB 16.

[239] Respondents' written submissions, par 7; CACV 29 of 2020, WB 16, citing primary decision [26].

[240] Respondents' written submissions, par 18; CACV 29 of 2020, WB 20, citing primary decision [213].

[241] Respondents' written submissions, par 18; CACV 29 of 2020, WB 20, citing UBS [45].

[242] Respondents' written submissions, par 19; CACV 29 of 2020, WB 20.

[243] Appellant's written submissions, pars 21 - 22; CACV 29 of 2020, WB 10.

[244] Appellant's written submissions, par 23; CACV 29 of 2020, WB 11.

[245] Appellant's written submissions, par 24; CACV 29 of 2020, WB 11.

[246] Appellant's written submissions, par 24; CACV 29 of 2020, WB 11, referring to Palmer v CITIC Ltd [No 2] [2019] WASC 14 [122].

[247] Palmer v CITIC Ltd [No 2] [2019] WASC 14 [122].

[248] Appellant's written submissions, par 25; CACV 29 of 2020, WB 11.

[253] Respondents' written submissions, par 21; CACV 29 of 2020, WB 21.

[254] Respondents' written submissions, par 23; CACV 29 of 2020, WB 22.

[255] Respondents' written submissions, par 24; CACV 29 of 2020, WB 22.

[256] Respondents' written submissions, par 25; CACV 29 of 2020, WB 22.

[257] Respondents' written submissions, par 27; CACV 29 of 2020, WB 23.

[258] Respondents' notice of contention, 'Ground of contention'; CACV 29 of 2020, WB 24.

[259] Respondents' notice of contention, par 1; CACV 29 of 2020, WB 24.

[260] See pars 73(c) ‑ (e) of the statement of claim in CIV 3129.

[261] Respondents' notice of contention, pars 5 - 9; CACV 29 of 2020, WB 26 - 27. Reference was made to various authorities, including Ekes v Commonwealth Bank of Australia [2014] NSWCA 366; (2014) 313 ALR 665 [151]; Prudential Assurance Co Ltd v Newman Industries Ltd (No 2) [1982] Ch 204, 222 ‑ 223; Johnson v Gore Wood (35 ‑ 36); V Plus Holdings Pty Ltd v Bank of Western Australia Ltd [2012] NSWSC 1327; (2012) 91 ACSR 551 [32]; Thomas v D'Arcy [2005] QCA 68; (2005) 1 Qd R 666 [18] ‑ [19], [29] ‑ [31], [37]; Ballard v Multiplex [2008] NSWSC 1019; (2008) 68 ACSR 208 [41].

[262] Appellant's reply to respondents' notice of contention, pars 7 ‑ 8; CACV 29 of 2020, WB 32.

[263] Appellant's reply to respondents' notice of contention, par 11; CACV 29 of 2020, WB 33, referring to Palmer v CITIC [No 2] [19], [121], [122], [141] ‑ [144].

[264] Appellant's reply to respondents' notice of contention, par 9; CACV 29 of 2020, WB 32 - 33.

[265] Reference was made to K & J Acquisitions Pty Ltd v Manauzzi [2009] NSWSC 279 [20].

[266] Christensen v Scott [1996] 1 NZLR 273, 280.

[267] Harris v Milfull [2002] FCAFC 442; (2002) 43 ACSR 542.

[268] Appellant's reply to respondents' notice of contention, pars 12 - 13; CACV 29 of 2020, WB 33 - 34.

[269] Appellant's reply to respondents' notice of contention, par 14; CACV 29 of 2020, WB 34, referring to Harris [40].

[270] Primary decision [68(l)] ‑ [68(m)], [213].

[271] Primary decision [215] - [216].

[272] Brighton v Australian and New Zealand Banking Group Ltd [2011] NSWCA 152 [91], citing O'Day v Commercial Bank of Australia Ltd [1933] HCA 37; (1933) 50 CLR 200, 219 ‑ 220 (Dixon J, Rich J agreeing), 222 (Evatt J), 223 (McTiernan J); Bank of Adelaide v Lorden [1970] HCA 59; (1970) 127 CLR 185, 191 ‑ 193 (Barwick CJ, Windeyer & Gibbs JJ agreeing, Walsh J agreed on this point), 201 (Menzies J); Buckeridge v Mercantile Credits Ltd [1981] HCA 62; (1981) 147 CLR 654, 666 ‑ 667, 671 (Aickin J, Gibbs CJ & Wilson J agreeing), 675 ‑ 676 (Brennan J, with whom Gibbs CJ, Murphy & Wilson JJ agreed).

[273] Brighton [91], citing Schoenhoff v Commonwealth Bank of Australia [2004] NSWCA 161 [19] ‑ [22].

[274] Vossloh Aktiengesellschaft v Alpha Trains (UK) Ltd [2010] EWHC 2443 (Ch); [2011] 2 All ER Comm 307 [27].

[275] As to which, see, eg, Re Perkins [1898] UKLawRpCh 85; [1898] 2 Ch 182; Taylor v Sanders [1936] VicLawRp 64; [1937] VLR 62; cf Total Oil Products (Australia) Pty Ltd v Robinson [1970] 1 NSWR 701; Schoenhoff [27] ‑ [29]; Caltex Australia Petroleum Pty Ltd v Troost [2015] NSWCA 64 [51] ‑ [54].

[277] Gould v Vaggelas [1985] HCA 75; (1985) 157 CLR 215.

[278] Gould (219 - 220). See also (245 - 246) (Wilson J), (253) (Brennan J).

[279] Thomas v D'Arcy [9], [11], [15], [19].

[280] Thomas v D'Arcy [21] - [22].

[281] Chen v Karandonis [2002] NSWCA 412.

[282] Chen [33] - [53]. See also Ballard [31] ‑ [41]; Mercedes Holdings Pty Ltd v Waters (No 2) [2010] FCA 472; (2010) 186 FCR 450 [109] ‑ [111]; VPlus Holdings [32], [42]; Morris v IMF Bentham Limited [2018] FCA 1009 [83] ‑ [92]; cf, in relation to the potential application of the principle to trusts: Mercedes Holdings Pty Ltd v Waters (No 3) [2011] FCA 236 [33] ‑ [49]; Dean v Antunes [2016] NSWSC 1845 [50] ‑ [71].

[283] Central Coast Council v Norcross Pictorial Calendars Pty Ltd [2021] NSWCA 75 [103] ‑ [119].

[284] Central Coast Council v Norcross Pictorial Calendars [103] ‑ [104].

[285] Central Coast Council v Norcross Pictorial Calendars [109].

[286] Marex Financial Ltd v Sevilleja [2020] UKSC 31; [2021] AC 39 [89], [95].

[287] Central Coast Council v Norcross Pictorial Calendars [119].

[288] George Fischer (Great Britain) Ltd v Multi Construction Ltd, Dexion Ltd [1995] 1 BCLC 260.

[290] Sutherland v GHR Accounting (No 3) [2017] NSWSC 373.

[294] Thomas v D'Arcy [21] - [22].

[296] Johnson (35 - 36) (Lord Bingham), (41) (Lord Goff), (55) (Lord Hutton), (65 - 66) (Lord Millett).

[299] Gould v Vaggelas (219 ‑ 220); Johnson v Gore Wood (35), (62); Ekes [150]; Thomas v D'Arcy [9], [11], [19], [21], [30], [37]; Central Coast Council v Norcross Pictorial Calendars [103] ‑ [104], [109].

[300] Gould v Vaggelas (219 - 220); Johnson v Gore Wood (35); Thomas v D'Arcy [7]; Central Coast Council v Norcross Pictorial Calendars [104].

[301] Johnson v Gore Wood (35); Thomas v D'Arcy [9]; Central Coast Council v Norcross Pictorial Calendars [104], [119].

[302] Gould v Vaggelas (220), (241), (257 ‑ 258); Johnson v Gore Wood (35), (62); Ekes [151]; Central Coast Council v Norcross Pictorial Calendars [104].

[303] Ekes [150], citing Johnson v Gore Wood (62).

[304] Sutherland v GHR Accounting (No 3) [2017] NSWSC 373.

[305] Thomas v D'Arcy [11]; Central Coast Council v Norcross Pictorial Calendars [115]; Johnson v Gore Wood (62).

[306] See the authorities collected by Bathurst CJ in Central Coast Council v Norcross Pictorial Calendars [103]; see also Thomas v D'Arcy [9] - [11].

[307] Central Coast Council v Norcross Pictorial Calendars [119].

[308] cf Gould (220); Thomas v D'Arcy [7]; Central Coast Council v Norcross Pictorial Calendars [104].

[310] As to which, see General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, 129.

[312] Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93.

[314] It is unnecessary for present purposes to consider whether Mr Palmer would be estopped: cf Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33; (2010) 75 NSWLR 245 [131] ‑ [140].

[316] CIV 3129 statement of claim, pars 55 - 58; BB 88 - 89.

[320] See, for example, the discussion of the authorities by Professor J W Carter, 'Indemnities Against Breach of Contract', paper presented at The Banking and Financial Services Law Association 25th Annual Conference, Queenstown, July 2008; R Zakrewski, 'The Nature of a Claim on an Indemnity', (2006) 22 JCL 54; N D'Angelo, 'Indemnities and Guarantees: A Taxonomic Expedition', (2011) 27 JCL 35.

[321] O'Grady v Northern Queensland Co Ltd [1990] HCA 16; (1990) 169 CLR 356, 376: 'The prepositional phrase "in relation to" is indefinite. But, subject to any contrary indication derived from its context or drafting history, it requires no more than a relationship, whether direct or indirect, between two subject matters'.