PALMER -v- CITIC LTD [No 7] [2023] WASC 202 (13 June 2023)

(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 or the failure of CITIC to cause Sino Iron and/or Korean to perform its obligations under this Deed or the Project Agreements.

1. The broad background to the FCD Proceedings can be gleaned from the several earlier decisions published by the court concerning these actions and, naturally, the present pleadings. A brief (and quite general) summary is set out in the following paragraphs. In addition, a description of the various proceedings involving the parties to the current action is included in Attachment A to these reasons. That summary is not an exhaustive recitation of all claims between these sets of parties - it is confined to the actions which are directly relevant to the FCD Proceedings, having regard to the pleadings and the submissions filed by the parties.

1. In the QNI Proceeding, Mr Palmer and Mineralogy claim against the CITIC Parties loss said to have been suffered in consequence of the failure by the CITIC Parties to pay what is known as Royalty Component B or RCB. There is no dispute that the RCB was not paid by the CITIC Parties until after the conclusion of the RCB Proceeding.[5] The loss is said to arise because Mineralogy did not fund Queensland Nickel Pty Ltd (QNI), following which QNI went into liquidation.
2. The manner in which Royalty Component B was to be calculated, and the non-payment of that royalty by the CITIC Parties, was the subject of relief sought in action CIV 1808 of 2013 (RCB Proceeding). That action proceeded to trial before Kenneth Martin J in 2017. The trial judgment of the court in CIV 1808 of 2013 is found at Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 16] [2017] WASC 340 (Kenneth Martin J). An appeal from this decision was largely dismissed: Sino Iron Pty Ltd v Mineralogy [2019] WASCA 80; (2019) 55 WAR 89 (Buss P, Murphy and Beech JJA).
3. As a consequence of the liquidation of QNI, it is alleged there was a diminution in the value of the Yabulu Refinery of which QNI had been the manager. In consequence of the foregoing, it is alleged there was a diminution in the value of the shares in QNI Metals Pty Ltd (QM) and QNI Resources Pty Ltd (QR) (the joint venturers in the Yabulu Refinery). In further consequence, it is alleged there was a diminution in value of Mr Palmer's shareholding in Nickel Consolidated Pty Ltd, Nickel Processing Pty Ltd and Nickel House Pty Ltd equivalent to the diminution in the value of the shares in QM and QR. Mr Palmer claims payment of approximately $1.8 billion in the QNI Proceeding.
4. The QNI Proceeding was commenced in June 2017. The current pleading is the fifth amended statement of claim dated 2 September 2022 (with leave having been sought by the plaintiffs to file a sixth amended statement of claim). The plaintiffs have drawn my attention to the summary of the claims in the QNI Proceeding which appears in Palmer v CITIC [No 2] [42] - [69] (Kenneth Martin J), which they accept as accurate for present purposes.

1. In the Palmer Petroleum Proceeding, Mineralogy claims that the failure by the CITIC Parties to pay Royalty Component B meant that Mineralogy did not provide funds to Palmer Petroleum Pty Ltd, in consequence of which the latter did not pay a debt to a service provider, BGP Geoexplorer Pte Ltd (BGP). By reason of the failure to pay the debt, Palmer Petroleum was wound up in insolvency.
2. In consequence, it is alleged that Palmer Petroleum ceased conducting the business of owning, exploring, developing and exploiting petroleum, and the Minister for Petroleum and Energy of Papua New Guinea cancelled its or its assignee's petroleum prospecting licences. As a consequence, Palmer Petroleum alleges it suffered a diminution in value of $2.675 billion, in consequence of which Mineralogy (its shareholder) suffered a loss in the same amount.
3. The Palmer Petroleum proceeding was commenced in February 2018. The current pleading is the further amended statement of claim dated 2 September 2022 (with leave being sought by the plaintiffs to file a third further amended statement of claim). The plaintiffs have drawn my attention to the summary of the claims in the Palmer Petroleum Proceeding which appears in Palmer v CITIC [No 2] [75] ‑ [103] (Kenneth Martin J), which they accept as accurate for present purposes.

1. There are two chambers summonses before the court, both dated 30 November 2022 (Strike-out Applications).[6] The applications are brought pursuant to O 20 r 19(1)(c) and (d) of the Rules of the Supreme Court 1971 (WA) (RSC), and the court's inherent jurisdiction.
2. The defendants' interlocutory Strike-out Applications seek orders to strike-out numerous paragraphs of the plaintiffs' reply to the further re-amended defence to the fifth amended statement of claim, which was filed on 12 November 2022, in the QNI Proceeding (QNI Amended Reply).[7]
3. The defendants also seek orders to strike-out numerous paragraphs of the plaintiff's reply to the re-amended defence to the second amended statement of claim, which was filed on 12 November 2022, in the Palmer Petroleum Proceeding (PP Amended Reply).[8]
4. The hearing of the Strike-out Applications was conducted on 8 and 9 March 2023. Mr J H Karkar KC led the counsel team for the CITIC Parties and Mr P J Dunning KC led the counsel team for the Mineralogy Parties.
5. The defendants contend the impugned paragraphs should be struck out in both proceedings as they may prejudice, embarrass or delay the fair trial of the actions, or are an abuse of process. The plaintiffs oppose the Strike-out Applications and contend that the paragraphs remain relevant to the matters in issue as presented in the defences, and are at least arguable.
6. In support of the Strike-out Applications, the CITIC Parties relied upon the affidavit of Tania Cini sworn on 27 February 2023 (Cini Affidavit),[9] and two sets of written submissions dated 6 February 2023 and 27 February 2023 (CITC Submissions and CITIC Reply Submissions).
7. In opposition to the Strike-out Applications, the Mineralogy Parties relied upon the affidavit of Tracey Lyn Robinson sworn on 14 December 2022 (Robinson Affidavit), and written submissions dated 20 February 2023 (Mineralogy Submissions).
8. In addition to the submissions filed for these Strike-out Applications, the parties also made reference to submissions which had been filed for the purposes of previous applications in these matters.[10] Finally, the parties also prepared a joint aide-memoire outlining the discussion on the Fulcrum Purposes in previous decisions (Joint Fulcrum Note).[11]

1. The CITIC Parties advanced the Strike-out Applications pursuant to O 20 r 19(1)(c) and (d) RSC, as well as the inherent jurisdiction of this court. Senior Counsel for the CITIC Parties did not rely on O 20 r 19(1)(a) or (b) RSC.[12] That is, the CITIC Parties contend that the impugned pleadings may prejudice, embarrass or delay the fair trial of the action, or are otherwise an abuse of process, but do not contend that the pleading discloses no reasonable cause of action or defence, nor that it is scandalous, frivolous or vexatious. In essence, the CITIC Parties submit that the relevant paragraphs are not relevant, or are immaterial, to the allegations in the defence to which they purport to respond.[13]
2. The principles governing strike out applications brought pursuant to O 20 r 19(1) RSC, and the inherent jurisdiction of the court, are well established and can be briefly stated. They were summarised in Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398 [60(d)] - [60(j)] (Smith J), and approved by the Court of Appeal in English v Vantage Holdings Group Pty Ltd [2021] WASCA 47 [56] (Murphy, Mitchell and Vaughan JJA) and in DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd [2022] WASCA 97 [226] (Quinlan CJ, Beech and Vaughan JJA). The principles below are largely adopted from the decision of Smith J, with footnotes and citations omitted.
3. Strike-out applications, in a modern context, must be assessed in the context of case management techniques. Case management considerations are not, however, necessarily antithetical to the observance of pleading rules. The objects of O 1 r 4A and r 4B RSC are often promoted by a clear and precise statement of the issues for decision.[14]
4. Provided a pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action (or defence), and apprising the parties of the case that has to be met, the court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the court to be spent extensively debating the application of technical pleading rules that evolved in, and derive from, a very different case management environment.[15]
5. Moreover, the mere fact that a case appears weak is not of itself sufficient to strike out the action.[16] As a general rule, a party is entitled as of right to have his or her case heard, to have the facts found and then to argue the question of law as it arises before the trial judge upon the facts as found.
6. It is fundamental that, on a strike-out application, not only must all the facts alleged in the pleading be accepted as true, but it must be taken for granted that on all other points the pleading is unassailable.[17]
7. Pleadings may be struck out on the ground that they may prejudice, embarrass or delay the fair trial of the action because they are evasive, they conceal or obscure the real questions in controversy, they are ambiguous or not reasonably intelligible, they raise immaterial or irrelevant issues, they fail to confine the issues or state the case of the party in question with reasonable particularity, or they raise a case in terms which are simply too general.[18]
8. Irrelevant or unnecessary pleas in a statement of claim will be struck out on the grounds that they will prejudice, embarrass or delay the fair trial of the action where the defendant must traverse the allegations and, thereby, raise false issues.[19]

1. I propose to briefly outline the substance of the defences filed by the CITIC Parties, insofar as they are relevant to the Strike-out Applications, and then summarise the reply pleadings filed by the Mineralogy Parties.

1. In summary, the defences raised by the CITIC Parties in each of the FCD Proceedings, as part of the defendants' responses to the plaintiffs' claims for damages pursuant to indemnities allegedly given to the plaintiffs under the FCD, include pleas that those proceedings are Anshun estopped and/or are an abuse of process.[20] There are, naturally, various other defences pleaded by the CITIC Parties.
2. To provide some further context to the pleading, I note the CITIC Parties advance the defences that I have described above on the two bases which are summarised below.[21]
3. First, on the basis that it was so unreasonable not to have made the claims now brought in the FCD Proceedings in the earlier RCB Proceeding, that the plaintiffs are estopped under the principles in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 from bringing or maintaining the claims it makes in the FCD Proceedings.[22] For the same reasons, it is contended that the making of those claims by the Mineralogy Parties in the FCD proceedings is an abuse of process.[23]
4. Second, it is pleaded that some of the plaintiffs' allegations in the FCD Proceedings are inconsistent with positions they took in various other proceedings such that allowing them to maintain those allegations in the FCD Proceedings would bring the administration of justice into disrepute and/or would be unduly oppressive to the CITIC Parties.[24]
5. The pleading history to the FCD Proceedings is set out in the Mineralogy Submissions.[25] The Mineralogy Parties note with some vigour that the CITIC Parties filed their amended defences in October 2021, and introduced 'extensive additional content in support of new Anshun estoppel and abuse of process defences'.[26]
6. The relevant, central contention advanced by the CITIC Parties is that their defences should succeed because the plaintiffs' claims in the FCD Proceedings ought to have been brought in the RCB Proceeding before Kenneth Martin J. That is, the Mineralogy Parties ought to have made the claims concerning the diminution in value of the Yabulu Refinery and Palmer Petroleum in the same proceedings in which they sought relief against the CITIC Parties for non-payment of the Royalty Component B, which was commenced in 2013 and proceeded to trial in 2017.

1. The Mineralogy Parties first filed their reply pleading in April 2022, with the current amended replies under challenge then being filed in November 2022 (being the QNI Amended Reply and the PP Amended Reply).
2. Within their reply pleadings, the Mineralogy Parties deny that it was unreasonable not to have made the present claims in the RCB Proceeding or that the making of the present claims would bring the administration of justice into disrepute or would be unduly oppressive to the CITIC Parties.[27] The Mineralogy Parties say further in their replies that, in all the circumstances of the case, they were justified in refraining from litigating the present issues in the RCB Proceeding.[28] None of these pleas in the replies are challenged by the CITIC Parties.
3. It is the next portion of the reply pleadings which have fallen under attack from the CITIC Parties. As I have already noted, the impugned paragraphs of the QNI Amended Reply and the PP Amended Reply are described by the parties as the Fulcrum Purposes Pleading. These paragraphs appear under the heading 'Disentitling conduct of the Defendants'. This aspect of the Mineralogy Parties' pleading has appeared in earlier proceedings between the parties. On the present occasion, the paragraphs are presented by the plaintiffs in a new context. The paragraphs now form part of the plaintiffs' replies in both proceedings, as part of their response to the defendants' abuse of process and Anshun estoppel defences.
4. The Mineralogy Parties describe these matters as being:

... disentitling conduct on the part of the CITIC parties and the inordinate delay in bringing the positive defences as providing discretionary bases to refuse the relief and as part of the circumstances and context in which inquiries are made by a Court as to Anshun estoppel and abuse of process.[29]

1. In essence, the Mineralogy Parties allege that the CITIC Parties 'ought to be precluded from seeking such relief due to disentitling conduct by them'.[30] The plea sets out extensive (alleged) conduct on the part of the CITIC Parties said to disentitle them from maintaining the Anshun estoppel and the abuse of process pleas. The conduct ranges from December 2001 through to November 2021.
2. The CITIC Parties describe the nub of these pleas as being:

... the existence and implementation by the CITIC parties of the so‑called Fulcrum Purposes, being to alter the contractual regime of the Sino Iron Project so as to render it more favourable to the CITIC parties and less favourable to Mineralogy and Mr Palmer.[31]

1. Further, the CITIC Parties submit that the pleas advanced by the Mineralogy Parties involve allegations that the CITIC Parties deliberately withheld sums they owed to Mineralogy in order to starve that company of funds and to further the Fulcrum Purposes. Additionally, that the CITIC Parties deliberately conducted the RCA Proceeding, the RCB Proceeding, and certain aspects of the MCP Proceeding for a range of ulterior purposes, including the Fulcrum Purposes and to apply commercial pressure to the Mineralogy Parties.[32]
2. It is convenient at this point to set out the opening paragraphs of the pleas which are challenged by the CITIC Parties as part of these Strike-out Applications. The relevant paragraphs in the QNI Proceeding are as follows:[33]

Disentitling conduct of the Defendants

[37] The Plaintiffs say further that, on the basis of the matters pleaded in the following paragraphs below, the Defendants ought be precluded from seeking such relief due to disentitling conduct by them or due to inordinate delay in bringing the allegations.

[38] The Defendants deprived Mineralogy of cash flow by refusing to pay RCB which forced Mineralogy to seek a prompt determination of the issue of construction of the RCB clause unburdened by ancillary claims which depended upon a favourable resolution of that issue.

[39] This position was brought about by deliberate conduct on the part of the Defendants to deprive Mineralogy of cash flow in order to advance their own commercial purposes, as pleaded further below.

1. The pleas which follow are grouped under ten headings in the QNI Amended Reply and the PP Amended Reply. It is convenient to summarise this conduct as follows:[34]

(a) the Sino Iron Project suffered various delays and losses;[35]
>
> (b) by no later than May 2010, the CITIC Parties had determined that steps were required to be taken to alter the parameters in which the Sino Iron Project was operating, including the contractual regime and the area allocated to the Sino Iron Project under the CITIC Negotiated Agreements, to parameters more favourable to CITIC and any subsidiary company, and less favourable to Mineralogy and Mr Palmer, by reason of those delays and losses (described in the pleadings as the 'Contract Normalisation Objective');[36]
>
> (c) a group was formed within CITIC, known as the 'Fulcrum Group', made up of various executives and advisors;[37]
>
> (d) the Fulcrum Purposes are expressly pleaded to include the following matters:

[70] The purposes of the Fulcrum Group included:

(a) to achieve the Contract Normalisation Objective;

(b) to recoup the additional costs of developing the Sino Iron Project in paragraphs 65b and 65c above from Mineralogy; and

(c) to seek to sterilise Mineralogy's other valuable mining tenements; confound the evident commercial intent of the sophisticated contractual arrangements the parties agreed to; and render the Defendants the one and only miner that Mineralogy must sell its other rights to, the other tenements having been rendered unsaleable and unusable by Mineralogy as a miner (collectively, the Fulcrum Purposes).[38]

(e) the Fulcrum Purposes are recorded in, or may be inferred from, seven matters, listed in the amended replies, and from the CITIC Parties' conduct of the MCP Proceeding;[39]

(f) since 2010, the CITIC Parties have conducted the relationship with Mineralogy according to the Fulcrum Purposes, including to apply commercial pressure to Mineralogy and alter the terms of the CITIC Negotiated Agreements.[40]

1. Next, the Mineralogy Parties raise allegations concerning the MCP Proceeding, being CIV 1915 of 2019, which was commenced by the CITIC Parties in October 2018. It is alleged in the replies that:[41]

(a) the CITIC Parties sought orders compelling Mineralogy to increase the Site Lease Area in the configuration depicted in Annexure 11 to the statement of claim in the MCP Proceeding;
>
> (b) the proposed extension to the Site Lease Area would inhibit and impair the use of the Mineralogy Tenements for any other project or purposes under the State Agreement, would devalue the Mineralogy Tenements, and was not sought to accommodate a genuine requirement for areas to prosecute the Sino Iron Project and the true purpose was to prevent, impair or inhibit Mineralogy including from using its other tenements in the Mineralogy Tenements;
>
> (c) the MCP Proceeding was commenced: (i) to further the Fulcrum Purposes; (ii) to permanently deprive Mineralogy of the ability to exploit and develop the balance of the Mineralogy Tenements, especially with any third party other than CITIC or any subsidiary company; and (iii) to vex Mineralogy with proceedings that are likely to, and did, lead to a trial that will, and did, run for months and consume a great amount of costs and management time of Mineralogy and prevent it from meaningfully pursuing the development or sale of the balance of the Mineralogy Tenements outside the Sino Iron Project in the meantime.
>
> (d) the CITIC Parties knew the extension to the Site Lease Area would have those consequences, which is to be inferred from a number of steps the CITIC Parties took in the MCP Proceeding, all of which occurred on or after 29 March 2018; and
>
> (e) the CITIC Parties thus did not have any genuine belief in the alleged entitlement to relief in respect of the map in Annexure 11 to the statement of claim and at least to that extent instead maintained the MCP Proceeding in furtherance of and for the Fulcrum Purposes.

2. Bringing all of this together, the Mineralogy Parties assert that this pleaded conduct has an immediate and necessary relation to the alleged Anshun estoppel and abuse of process defences in the following two ways:[42]

[100] The conduct of Sino, Korean and CITIC pleaded in paragraphs 37 to 99 above has an immediate and necessary relation to the alleged Anshun estoppel and abuse of process defences in that:

(a) in the period up to early 2017 when Mineralogy amended its pleading in the RCB Proceeding to seek determination of the RCB construction issue, the conduct forms part of the reason why Mineralogy was not acting unreasonably in not pursuing the claims in the present proceeding in the RCB Proceeding; and

(b) all of the conduct is relevant to the broad merits based enquiry which necessarily must be undertaken to assess whether alleged conduct should properly be characterised as an abuse of process and is similarly relevant to whether equitable estoppel relief ought be refused on discretionary grounds.

1. In large part, the foregoing represents the battleground for the Strike-out Applications.

1. For the purposes of the Strike-out Application, both parties made extensive submissions concerning the scope of both the Anshun estoppel and the abuse of process defences, and the principles applicable to those defences.
2. The submissions reveal a divergence of view between the parties on what I would describe, at least in some respects, as relatively complex questions of law. As I have already noted, it is typically not appropriate in interlocutory applications of the present nature, for the court to express a concluded view on complex, difficult and disputed questions of law. The present applications are no exception. Nonetheless, it is appropriate to outline the essence of the parties' respective positions on these matters.
3. In support of the Strike-out Applications, the CITIC Parties submit that the conceptual and principled foundation for the defences in question has been misunderstood by the Mineralogy Parties. The CITIC Parties emphasise that the defences are common law in origin, not equitable, and the Mineralogy Parties' misunderstanding in this regard has led to a pleading which is not a rational response to the pleaded defences and in effect raises a series of false issues. The CITIC Parties submit that the scope of the defences are not 'unsettled' and their application does not involve 'difficult question[s] of law'.[43]
4. In support of the submissions as to the jurisprudential origins of the defence, the CITIC Parties refer to statements in cases such as Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 [22] (French CJ, Bell, Gageler and Keane JJ) and Fortescue Metals Group v Warrie [2019] FCAFC 177; (2019) 273 FCR 350 [111] (Jagot, Robertson, Griffiths, Mortimer and White JJ), in this regard. In Tomlinson, the concept of Anshun estoppel was described as being part of the 'common law of Australia'. The Full Federal Court in Warrie subsequently described the relevant doctrine as being the 'common law doctrine of estoppel in judicial determinations', referring to Tomlinson. In response, Senior Counsel for the Mineralogy Parties observed these references were in substance little more than references to Anshun estoppel forming part of the non‑statutory body of law common throughout the country, rather than differentiating it from the principles of equity administered in the Court of Chancery: PGA v The Queen [2012] HCA 21; (2012) 245 CLR 355 [20] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ). Such questions are best not resolved by a Judge in the General Division of this court hearing an interlocutory pleading application.
5. The CITIC Parties further submit that there is no support in the authorities for the propositions that the relevant circumstances informing 'reasonableness' (for the purposes of Anshun estoppel) relevantly include the subjective motivation of the other party to the proceeding. Further, there is no basis for it to be contended that a party who failed to bring a related claim in an earlier proceeding may rely as justification for that failure on the subjective motivations of the other party to that proceeding or that the motivations of the other party may somehow disentitle it from seeking relief on Anshun estoppel or abuse grounds.[44] The CITIC Parties also deny that the law of Australia allows resort to the 'special circumstances' exception to Anshun estoppel, being a reference to the exception as stated in the often-cited passage of Sir James Wigram VC in Henderson v Henderson (1843) 3 Hare 100; 67 ER 313:[45]

In trying this question, I believe I state the rule of the Court correctly, when I say, that where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, of even accident, omitted part of their case.

1. There is no question, according to the CITIC Parties, whether a stay for Anshun estoppel or abuse of process can be refused on discretionary grounds. The CITIC Parties submit that the court must examine these matters by regard to objective circumstances, not any subjective motivations. To the extent the relevant pleas are confined to the conduct and motivations of the CITIC Parties, it is thus said that the pleas are irrelevant and raise a false issue.
2. In support of the foregoing, in relation to the abuse of process defence, the CITIC Parties refer to the decision of Vaughan J (as his Honour then was) in Patrick Jebb as trustee for The Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [2019] WASC 121. In that case, his Honour observed that a determination that proceedings constitute an abuse of process is not a discretionary decision, and there can only be one correct answer to whether there is or is not an abuse of process (at [105]). In a similar vein, the CITIC Parties refer to the decision of Murphy JA in Secure Parking (WA) v Wilson [2012] WASCA 230. In Secure Parking, Murphy JA expressed the view at [56] - [60] (Martin CJ and Buss JA agreeing) that:

In this context, it has been held, correctly in my respectful view, that a finding of Anshun estoppel is not in the nature of a discretionary decision, but rather is one, like a finding of negligence, which an appeal court can, and should set aside, if the appeal court is appropriately satisfied that it was wrong. Although evaluative, it involves the application of a legal standard and not the exercise of discretion. See C G Maloney Pty Ltd v Noon [2011] NSWCA 397 [70] - [71]; Redowood Pty Ltd v Link Market Services Pty Ltd (formerly known as ASX-Perpetual Registrars Ltd) [2007] NSWCA 286 [53].

1. The CITIC Parties thus submit that a decision to stay or dismiss a proceeding as an abuse of process or for Anshun estoppel is not a mere discretionary matter of practice and procedure. If the factual and legal basis for abuse of process or for Anshun estoppel is made out, the court has a duty, not a discretion, to intervene, according to the CITIC Parties.[46]
2. In my view, reliance on statements to the foregoing effect do not deny the possibility that these defences may permit the court to have regard to a broad range of circumstances including the motivations of the parties. The statements in Patrick Jebb v Superior Lawns and Secure Parking referred to by the CITIC Parties address the characterisation of the court's conclusion as to whether the defences are established, not the content of those defences.
3. Indeed, as Vaughan J's decision in Patrick Jebb v Superior Lawns demonstrates, at least in the context of an abuse of process argument, but his Honour also recognises the close parallels with Anshun estoppel, that a broad merits-based judgment is required which takes account of the public and private interests involved and also takes into account all the facts of the case (at [108] - [111]). In this regard, his Honour referred to the statements of Lord Bingham of Cornhill in Johnson v Gore Woods & Co [2002] AC 1 [31], as follows:

..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. Vaughan J noted that this aspect of the doctrine of abuse of process has been accepted by various intermediate appellate courts in Australia including the Court of Appeal in Western Australia.[47] Vaughan J's summary of the facts and the result in Johnson v Gore Wood & Co is instructive:

[115] The importance of the reasonableness of and the justification for the claimant's actions is demonstrated by the result in Johnson v Gore Wood & Co. Here there was no abuse of process where, despite having earlier caused a corporate alter ego to sue and settle, Mr Johnson commenced his own proceedings against the same defendant in respect of the same transaction. There was no doubt that Mr Johnson may have included his personal claim in the company's proceedings, or may have otherwise issued proceedings in tandem with the company's proceedings. But it was accepted that Mr Johnson was entitled to defer the bringing of his own claim until the company's claim had been resolved.

[116] Mr Johnson's reasons were explained: he was under financial stress; there was a need for a quick decision on the company's claim; additional complex issues would have to be litigated if the personal claim was pursued in tandem with the company's claim; and Mr Johnson had to find new employment and was restricted in the time he could devote to litigation. Moreover, the terms of the settlement agreement and the exchanges that preceded it were found to demonstrate acceptance that it was open to Mr Johnson to issue proceedings to enforce a personal claim which could then be tried or settled on its merits.

[117] In the course of his reasons Lord Bingham observed:

'... while I would accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the party against whom it is sought to claim.' (at 31)

1. Addressing the scope of Anshun estoppel, the CITIC Parties submit that the concept of 'special circumstances' forms no part of Australian law, but rather is part of English law only.[48] This is despite the passage of Sir James Wigram VC in Henderson v Henderson, which refers to the 'special circumstances' exception, being expressly referred to by the High Court in Port of Melbourne Authority v Anshun Pty Ltd.[49] The CITIC Parties note there is no reference to 'special circumstances' in the recent decisions of the High Court in either Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 or Clayton v Bant [2020] HCA 44; (2020) 272 CLR 1, and submit that the Anshun estoppel principles were recently restated in Clayton v Bant, without any reference to 'special circumstances'.[50] The CITIC Parties acknowledge that some lower courts have referred to 'special circumstances', but submit that their reasoning must now be read as overtaken by the High Court authorities to which I have just referred.
2. Reliance is placed by the CITIC Parties on the obiter comments of the Full Court of the Federal Court in Truthful Endeavour Pty Ltd v Condon [2015] FCAFC 70; (2015) 233 FCR 174. In that decision, the court (Allsop CJ, Katzmann and Gleeson JJ) rejected the application of the asserted Anshun estoppel (and so upheld the primary judge's decision on that issue). In so doing, the court held that:

If Truthful Endeavour were right, then Mr Condon would be prevented from bringing a claim which was not raised in any previous proceeding and has therefore not been the subject of any previous judicial determination, and would not be inconsistent with any previous decision, in circumstances where, through no fault of his own, he was unaware of all the relevant facts at the time of the previous proceeding, and when he was effectively encouraged to bring the claim in fresh proceedings by Truthful Endeavour's own lawyers and a justice of the Supreme Court. Not only would that be a harsh result, as Mr Condon suggested, it would be unjust. Anshun is concerned with preventing injustice. It would be antithetical to the principle for which it stands to hold that the circumstances of this case give rise to an estoppel. The primary judge was entirely correct to reject the proposition.

1. The court then returned to the notice of contention which had been filed in the appeal proceedings. The comments of the court on this issue are relied upon by the CITIC Parties.[51] The court said:

It follows that it is unnecessary to deal with the notice of contention. We would, however, make this observation. The expression 'special circumstances' comes from Henderson v Henderson. The approach of the High Court differs in this respect from the approach taken in the United Kingdom. The Australian approach is to focus at the outset on all the relevant circumstances or, as Wilcox J put it in Ling v The Commonwealth at 184, 'all aspects of the case'. If it were necessary to decide whether the matters raised in the notice of contention amounted to special circumstances so as to defeat the estoppel, then, for the above reasons, we would hold that they were.

1. There is force in the foregoing submissions and the CITIC Parties' reliance on the (admittedly obiter) comments in Truthful Endeavour. That force was met, in the course of argument on these Strike-out Applications, by the submissions of Senior Counsel for the Mineralogy Parties who identified a number of authorities which support the application of the 'special circumstances' exception in Australia and permit regard to be had to a wide range of factors, all of which bear upon the general discretion of the court where justice requires the non-application of the general Anshun principle.[52]
2. For the purposes of these Strike-out Applications, the court was thus faced with several decisions, including intermediate appellate court decisions, which at least arguably support a broader conception of the scope of Anshun estoppel and abuse of process than that contended for by the CITIC Parties. During the course of argument, I was taken through those authorities by Senior Counsel for the Mineralogy Parties. I refer, by way of example only, to Inghams Enterprises Pty Ltd v Francis Hannigan [2021] NSWCA 309, [25] (Gleeson JA, with Simpson AJA agreeing); BC v Minister for Immigration & Multicultural Affairs [2002] FCAFC 221 [30] (Carr, Tamberlin and Conti JJ); and Mandeville v Better Lending Pty Ltd [2021] SASCA 28 [109] - [112] (Doyle, Livesey and Bleby JJA).
3. In Inghams Enterprises, Gleeson JA dismissed an appeal against a decision by Stevenson J to decline to stay the proceedings at first instance. The stay was sought on the basis of an Anshun defence pleaded by Inghams. As explained by Gleeson JA at [2], an Anshun estoppel operates to preclude a party from asserting a claim or raising an issue that is so closely related to the subject matter of proceedings already conducted that it ought reasonably to have been asserted or raised at an earlier time (referring to Tomlinson [22] (French CJ, Bell, Gageler and Keane JJ)). Inghams contended in its defence that it was unreasonable for the plaintiff not to have included a claim for damages in certain earlier proceedings he had brought.
4. The plaintiff's unchallenged evidence in the proceedings was that he wanted to have the contractual dispute determined as quickly as possible because the operational costs he was bearing were substantial, he wanted certainty as to whether the contract remained on foot as soon as possible, and he believed that the quickest way forward was to confine the matters in dispute in the earlier proceedings. Further, he did not want to delay, complicate, or increase the cost of those proceedings by including a claim for damages.
5. Gleeson JA held that the relevant question was not whether it would have been reasonable to have made the subject claim in the first proceeding; rather, the question was whether the failure to do so was unreasonable in the context of the first proceeding.[53] Gleeson JA further held that it should be borne in mind that the assertion of an estoppel based on an Anshun defence is highly fact-specific in every case and that on an application for a permanent stay it is necessary for the Court to reach a degree of certainty that justifies the premature determination, before trial, of a plaintiff's claim. On the question of reasonableness (which was the first ground of the appeal), Gleeson JA identified several aspects of the case which demonstrated it was not unreasonable for the plaintiff to have proceeded in the manner he did.
6. Turning then to the question of special circumstances, although an analysis of this ground was not strictly necessary given the conclusion on the first ground, Gleeson JA referred to the decision in Mandeville and held that:

[25] The 'special circumstances' exception to the application of the Anshun principle comprehends situations where, for broad discretionary considerations relating to notions of justice, the principle will not be applied with full rigour: Bryant v Commonwealth Bank of Australia at 296 citing the Privy Council in Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] UKPC 6; [1975] AC 581 at 590; BC v Minister for Immigration and Multicultural Affairs [2002] FCAFC 221 at [30]; Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 146 FCR 10; [2004] FCAFC 242 at [38].

[26] As indicated, the primary judge concluded that in all the circumstances it would be 'most unjust' for Mr Hannigan to be shut out from bringing the damages claim he wishes to bring. Mr Hannigan correctly submitted that the 'special circumstances' exception encompasses avoiding results that are aptly described as 'most unjust'.

1. Turning then to Mandeville itself, the Court of Appeal of South Australia considered an appeal against a trial judge's conclusion that a party was estopped by Anshun estoppel from bringing and prosecuting a counterclaim. The Court of Appeal analysed the High Court's decision in Anshun as follows (footnotes omitted):

[97] Anshun concerned the failure of an owner of a crane to rely on an indemnity agreement with the hirer on the suit of a workman who had suffered injuries in the course of the hirer operating the crane. The owner's liability was apportioned at 90 per cent, and the hirer's liability at 10 per cent. The owner then commenced a separate action against the hirer, relying on the indemnity agreement.

[98] A majority of the High Court held that the owner was estopped from raising the indemnity agreement in the second action, as it had been unreasonable in not raising it as a defence to the hirer's claim for contribution in the first action, so closely connected as it was with the subject matter of the action. The Court considered that an important factor to be taken into account in deciding whether an estoppel was founded was that a judgment in the second action on the indemnity would conflict with that in the contribution proceedings.

1. The Court of Appeal then noted that the interrogation of whether the failure to raise a matter in an earlier inquiry was unreasonable must necessarily examine the objective character of the conduct of the party in question, including the reasons for engaging in the conduct. This is not a mechanistic assessment, however. The court observed that it deploys a value judgment 'referable to the proper conduct of modern litigation' (citing Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33; (2010) 75 NSWLR 245 [3] (Allsop P)).
2. The Court of Appeal then made reference to the decision of Nettle and Edelman JJ in UBS AB v Tyne [2018] HCA 45; (2018) 265 CLR 77 [120] (dissenting in that case on the result, but not on the relevant point of principle), where their Honours made the following observations as to the conclusion of the High Court in Anshun:

... that the question of whether a claim that could have been made in an earlier proceeding can be brought in a subsequent fresh proceeding turns on whether the failure to advance it in the earlier proceeding was unreasonable. There the plurality held that there will be no estoppel in relation to a fresh proceeding unless the matter relied on in the fresh proceeding was so relevant to the subject matter of the earlier proceeding that it was unreasonable not to rely upon it in the earlier proceeding. And, generally speaking, it is not unreasonable not to rely on a matter in an earlier proceeding unless, having regard to the nature of the claim in the earlier proceeding, it would be expected that the party seeking to rely on the matter in the new proceeding would have raised the matter in the earlier proceeding and thereby enabled the relevant issues to be determined at that time. Further, as was observed in Anshun, it is necessary to bear in mind that there are a variety of reasons why a party may justifiably refrain from litigating an issue in an earlier proceeding yet wish to litigate the issue in another proceeding, including expense, importance of the particular issue, and motives extraneous to the litigation.[54]

1. At [109], the Court of Appeal then analysed the concept of 'special circumstances'. The court held as follows (footnotes omitted), citing the decision of the Full Federal Court in Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242; (2004) 146 FCR 10 in particular:

[109] The inquiry into unreasonableness, informed by the prospect of conflicting judgments, is not necessarily the end of the matter. The Court in Anshun appears to have accepted that a conclusion of unreasonableness may yet admit of exceptions. To this end, in Wong v Minister for Immigration and Multicultural and Indigenous Affairs, the Full Federal Court (in distinguishing the operation of Anshun estoppel from the doctrines of res judicata and issue estoppel), said:

'As foreshadowed in Anshun, there will be instances where, even though there is every reason why the matter should have been raised earlier but was not, there are special circumstances that prevail to permit a party to raise the issue in a subsequent proceeding. The Court therefore has a discretion, if it determines that special circumstances exist, to allow an issue to be raised, even where it is found that the point was unreasonably omitted from the earlier proceeding: see Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543 at 558. However, the circumstances in which that would be permitted must, because of the principles referred to above, be exceptional, constituting "special circumstances": see BC v Minister for Immigration and Multicultural Affairs [2002] FCAFC 221 at [30]. What will be sufficient to constitute special circumstances is by no means fixed and may involve consideration of a wide range of factors, all of which bear upon the general discretion of the Court where justice requires the non-application of the general principle: see BC v Minister for Immigration and Multicultural Affairs (2001) 67 ALD 60 (Sackville J) at [50] referring to Port of Melbourne v Anshun (No 2) [1981] VicRp 9; [1981] VR 81; see also Bryant v Commonwealth Bank of Australia [1995] FCA 1299; (1995) 57 FCR 287 at 296, 298-299, citing Yat Tung Investments Co Ltd v Dao Heng Bank Ltd [1975] UKPC 6; [1975] AC 581.'

[110] An inquiry into whether there are nonetheless special circumstances that should permit the party to raise the matter in a subsequent proceeding presumably incorporates, but goes beyond, the matters relevant to the unreasonableness examination. It invites a conclusion based on a potential range of matters. Thus, having regard to the above discussion of the risk of inconsistent judgments, a failure to make a claim in proceedings might be viewed as unreasonable on any view, regardless of the existence of such a risk. The absence of that risk may, however, be a relevant consideration in determining whether such special circumstances exist.

[111] The appellant submits that no House v The King-type discretion arises such as to operate as a restraint on an appeal from a decision on Anshun estoppel, including where that decision turned on a conclusion of the existence of special circumstances. In BC v Minister for Immigration and Multicultural Affairs, the Full Federal Court said: [69]

'In our opinion, the better approach is, with respect, that taken by the Full Court of the Supreme Court of Victoria in Anshun (No 2) i.e. that once a court has found that the Anshun principle applies, then the only "discretion" which the court may exercise not to apply the Anshun principle is if it finds that "special circumstances" exist. That is essentially a finding of fact to which the rule in House v R has no application.'

[112] While the Court did not ultimately need to undertake the exercise in that case, it was prepared to undertake its own assessment of whether special circumstances existed. The appellant urged the same approach on this Court. We return to the question of the basis of appellate intervention below.

1. While the High Court decisions relied upon by the CITIC Parties, namely Tomlinson and Clayton v Bant, do not refer to or endorse the authority of the 'special circumstances' exception, it is not apparent to me that this particular issue was squarely before the court in those matters. Certainly, it can be said that the High Court did not expressly reject the 'special circumstances' exception in either case.
2. In addition to the foregoing authorities, I note that, even more recently, the Full Federal Court briefly touched on the scope of Anshun estoppel. I refer to Pearson v Minister for Home Affairs [2022] FCAFC 203 (Allsop CJ, Rangiah and Sarah C Derrington JJ). The court in that case dealt with the decision of the High Court in Clayton v Bant, without suggesting that the High Court had nullified the operation of the 'special circumstances' exception. Indeed, the Full Federal Court endorsed the statement of Sackville J in BC v Minister for Immigration & Multicultural Affairs to the effect that the Anshun principle is subject to this exception, and that the exception may comprehend situations where the estoppel principle should not be applied with full rigour by reason of broad discretionary considerations related to notions of justice.[55] No final conclusion on the application of the exception was required from the court on the facts of that case, as is evident from the following passage:

The notions of vindication of justice derived from the interpretation of a complexly worded statute may make this, in the circumstances, a case within the 'special circumstances' exception to the principle. In any event, there has been no investigation of the circumstances that might explain why the point was not raised. There has been no scrupulous examination of all the circumstances. In these circumstances the Minister has not discharged the onus, that was on him, of establishing the factual basis for the operation of the Anshun estoppel.

1. It is therefore, in my view, at least arguable that, even if the court concludes that a party acted unreasonably in refraining from bringing a certain claim or defence in an earlier proceeding, the court may decline to stay a proceeding based on an Anshun estoppel where 'special circumstances' exist. In this respect, a wide range of factors may be considered by the court in assessing whether to exercise its discretion to refrain from applying the general principle, where justice so requires, including the motivations of the parties. These factors, at least arguably, go beyond the matters relevant to the unreasonableness examination.
2. Let me return briefly to the abuse of process doctrine, which I have earlier discussed. I consider it is well-accepted that this doctrine is a broad and more flexible doctrine than estoppel. Factors that may not be relevant to the reasonableness examination required for the Anshun estoppel defence may nevertheless bear upon the question whether the second proceedings constitute an abuse of process. The Mineralogy Parties cited the observations of Lord Bingham of Cornhill in Johnson v Gore Woods & Co at [31] in this regard, as follows:

..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. The foregoing statement was adopted by the High Court in UBS AG v Tyne at [7] (Kiefel CJ, Bell and Keane JJ) and at [67] - [69] (Gageler J).
2. The Mineralogy Parties further submit that matters which may be taken into account by the court in the abuse of process inquiry include 'the extent of the oppression and unfairness to the other party if the issue is relitigated, the impact of the relitigation upon the principle of finality and on the public confidence in the administration of justice; as well as the overall balance of justice between the parties', citing O'Shane v Harbour Radio [2013] NSWCA 315; (2013) 85 NSWLR 698 [106] (Beazley P, with whom McColl JA and Tobias AJA concurred). These statements are regarded by the CITIC Parties as being no more than a gloss on the expression of the principles expressed by the High Court in Tomlinson and Clayton v Bant and incapable of providing any real assistance to the plaintiffs' arguments.
3. Ultimately, the CITIC Parties characterise the Mineralogy Parties' submissions as rising no higher than asserting that 'two wrongs make a right'.[56]
4. For present purposes, and specifically for the purposes of determining the Strike-out Applications before the court, the approach I intend to adopt is as set out in [77] and [78] above.

1. Detailed oral submissions were made by Senior Counsel for both sets of parties over the course of the hearing on 8 and 9 March 2023, to explain (respectively) why the Fulcrum Purposes Pleading was either embarrassing and an abuse of process and should be struck out, or why the pleading should stand and be the subject of determination at a final trial. The oral submissions amplified the detailed written submissions which had been filed by the parties.
2. The court was assisted by all of the material provided, but ultimately I consider it is both unnecessary and inappropriate to express concluded views about all of the matters which were argued, particularly given the nature of these interlocutory applications.
3. I propose to address the core arguments relied on by the parties, as appears from the written submissions and the oral argument, as part of the analysis below. I have already, in the preceding section of these reasons, traversed many of the authorities relied upon by the parties in support of their respective positions as to the scope of the Anshun estoppel and abuse of process defences.
4. It of course remains important for the court to assess these interlocutory applications with a firm eye on the principles summarised at [25] - [31] of these reasons. In particular, it is to be emphasised that the court must accept the pleaded factual allegations as true at this stage, and the existence of what may appear to be a weak case at an interlocutory level is not sufficient to strike out the pleading or the action.
5. Further, subject to the case management objectives of this court, a party is entitled as of right to have his or her case heard, to have the facts found and then to argue the question of law as it arises before the trial judge upon the facts as found. Put another way, great care must be exercised to ensure that a litigant is not improperly deprived of its opportunity to have a trial of its case.
6. Applying those principles, I am not satisfied the Fulcrum Purposes Pleading will prejudice, embarrass or delay the fair trial of the action, or is an abuse of process. I am persuaded by the submissions advanced by the Mineralogy Parties, and I accept the central contentions advanced in those submissions, that the pleading under challenge does not raise irrelevant or immaterial issues, and nor does it raise false issues. The reasoning I have applied, and the analysis I have undertaken, in reaching these conclusions, is explained below.

1. First, it is important to recognise that there must be a rational connection between the impugned paragraphs of the QNI Amended Reply and the PP Amended Reply (on the one hand) and the defences asserted by the CITIC Parties to which they respond (on the other). Both parties' Senior Counsel accepted the fundamental nature of this proposition. Even a broad merits-based enquiry does not permit irrelevant matters to be asserted, or for matters having no rational connection to the defences to be introduced by way of a reply pleading. That would create false issues, which is impermissible.

Breadth of the Anshun and abuse of process defences

1. Second, in order to assess the existence of a rational connection between the relevant pleas, it is necessary to assess the scope of the Anshun estoppel and abuse of process defences. As explained in the preceding section of these reasons, I have formed the view that the primary submissions advanced by the Mineralogy Parties in this regard are at least arguable (which necessarily informs the manner in which the Mineralogy Parties may permissibly plead in response to the defences asserted by the CITIC Parties).
2. The tension between the authorities presented by the parties cannot, and should not, be finally resolved in the context of these interlocutory Strike-out Applications. As I have already stated, it is typically not appropriate in interlocutory applications of the present nature, for the court to express a concluded view on such complex, difficult and disputed questions of law. Those matters should be addressed once the applicable facts have been found at trial. As matters presently stand, I am of the view that the contentions advanced by the Mineralogy Parties on this aspect of the matter are at least arguable and I would therefore decline to strike-out the pleading on this basis, at this stage. I will explain this conclusion a little further.
3. In relation to the Anshun estoppel defence pleaded by the CITIC Parties, I am of the view it is at least arguable that, even if the court concludes that a party acted unreasonably in refraining from bringing a certain claim or defence in an earlier proceeding, the court may decline to stay a proceeding based on an Anshun estoppel where 'special circumstances' exist. In this respect, a wide range of factors may be considered by the court in assessing whether to exercise its discretion to refrain from applying the general principle, where justice so requires, including the motivations of the parties. These factors, at least arguably, go beyond the matters relevant to the unreasonableness examination.
4. The foregoing matters are supported, at least at the interlocutory level of arguability, by the trio of intermediate appellate court decisions referred to by Senior Counsel for the Mineralogy Parties. Those decisions are the decision of the NSW Court of Appeal in Inghams Enterprises, the Full Federal Court decision in BC v Minister for Immigration & Multicultural Affairs, and the Court of Appeal of South Australia decision in Mandeville. The Full Federal Court decision in Pearson may be added to this list, given the court in that case emphasised the need for a scrupulous examination of all the circumstances when considering whether an Anshun estoppel has been established, and whether the 'special circumstances' exception arises.
5. Once this point is reached, and it is accepted that the inquiry required is one that demands a detailed examination of the factual circumstances, which may involve an assessment of broad discretionary considerations relating to notions of justice, it becomes readily apparent that the core challenge to the QNI Amended Reply and the PP Amended Reply, as developed by the CITIC Parties in these Strike‑out Applications, cannot be accepted on an interlocutory basis. The Anshun estoppel defence demands a 'meticulous scrutiny'[57] of all of the individual facts of the case and the issues involved will be 'highly fact‑specific in every case'.[58] Fundamentally, these remain matters for debate at the final trial, the present applications being an inapt vehicle to determine such matters.
6. Similarly, I am of the view that, for the purposes of these interlocutory applications, the abuse of process defence pleaded by the CITIC Parties must be approached as involving a broad merits‑based judgment which takes account of the public and private interests involved and also takes into account all the facts of the case. I recognise that the abuse of process doctrine is a broad doctrine, and one that is more flexible than Anshun estoppel. Thus factors that may not be relevant to the unreasonableness examination required for the Anshun estoppel defence may nevertheless bear upon the question whether the second proceedings constitute an abuse of process.
7. Returning to the submission of the Mineralogy Parties - it is submitted that, even if the CITIC Parties are correct in their contention that the impugned paragraphs in the QNI Amended Reply and the PP Amended Reply are not arguably relevant to the question whether Mineralogy acted in an unreasonable manner in refraining from making the present claims in the RCB Proceeding, that is not the end of the analysis for the purposes of the abuse of process defence. The Mineralogy Parties submit that the exertion of commercial pressure upon Mineralogy in furtherance of the Fulcrum Purposes, including by delaying payment of sums, would factor into an assessment of whether the current proceedings occasion unjustifiable oppression to the CITIC Parties, or otherwise bring the administration of justice into disrepute.
8. Having regard to the breadth of the abuse of process doctrine, I accept the foregoing propositions as advanced by the Mineralogy Parties are at least arguable.
9. Further, it cannot be said (at this stage) that a party's reliance on subjective motivations, by way of response to either an Anshun estoppel defence or abuse of process defence, is impermissible. In any event, I consider that the pleadings under challenge are not confined to allegations based on the subjective motivations of the CITIC Parties. The pleading goes beyond this.[59]
10. Accordingly, I do not accept the submission of the CITIC Parties that the broad matters pleaded by the Mineralogy Parties, which form part of the Fulcrum Purposes Pleading in the QNI Amended Reply and the PP Amended Reply, are either irrelevant or immaterial, or that they raise false issues.[60] Nor do I accept there is a failure to comply with the requirements of O 20 r 9 RSC or O 20 r 13(1)(b) RSC in this regard (and any such perceived failures might in any event be more appropriately dealt with by way of a request for particulars or through some less blunt interlocutory mechanism than a strike-out application). In my view, there is a logical connection between the conduct of the CITIC Parties as pleaded in the impugned paragraphs of the QNI Amended Reply and the PP Amended Reply, and the pleaded defences, which is sufficient to sustain the pleadings.
11. That is, the conduct of the CITIC Parties is expressly pleaded by the Mineralogy Parties as representing part of the reason (as the Mineralogy Parties will contend at trial) they were not acting unreasonably in failing to pursue the claims in the FCD Proceedings in the course of the RCB Proceeding (so far the period up to early 2017 is concerned). Further, all of the conduct pleaded in the impugned paragraphs of the QNI Amended Reply and the PP Amended Reply is also expressly pleaded by the Mineralogy Parties as being relevant to the broad merits based enquiry which must be undertaken to assess whether the alleged conduct should properly be characterised as an abuse of process, and whether the estoppel relief sought by the CITIC Parties should be refused.
12. Can this broad enquiry also involve an examination of matters which occurred after the RCB Proceeding was determined, in the sense that such matters may be relied upon to infer the existence of anterior purposes on the part of the defendants to the present actions?[61]
13. The CITIC Parties do criticise the pleadings as embarrassing in that the pleadings refer to matters and events which were unknown to the Mineralogy Parties at the time of the earlier proceedings. The CITIC Parties say these matters could not have rationally affected or had a bearing upon the failure of the Mineralogy Parties to advance the present claims in the earlier proceedings, or whether the failure to advance these claims in the earlier proceedings was reasonable or unreasonable.[62]
14. The timing arguments advanced by the CITIC Parties have some force, but given the breadth of the relevant inquiry and the manner in which the Mineralogy Parties put the allegations, those arguments do not, in my view, render the relevant paragraphs of the pleading as unarguable. I consider the Mineralogy Parties are permitted at this stage to assert that the subsequent facts represent 'retrospectant circumstances from which the existence of the Fulcrum Purposes as at the critical time may be inferred' (the critical time being the time at which the RCB Proceeding was being conducted).[63]
15. Further, in response to these timing criticisms, Senior Counsel for the Mineralogy Parties placed reliance on the earlier proceedings between the parties before the Queensland Supreme Court.[64] In particular, Senior Counsel referred to the analysis of Jackson J in Sino Iron Pty Ltd v Palmer [2014] QSC 287 at [32] as to the adequacy of the pleading by the Mineralogy Parties of illegitimate pressure, being a nascent version of the Fulcrum Purposes Pleading. The pleading was struck out, but Senior Counsel drew comfort from the query posed by Jackson J at [32] which left the door open for the unclean hands pleading to be repleaded.
16. I must say, I do not draw much of relevance to the present applications from the analysis of Jackson J in the 2014 strike-out applications.[65] Nonetheless, Senior Counsel for the Mineralogy Parties urged the following submissions on the court:[66]

... it's retrospective because despite the submission of my learned friends yesterday, what it tends to do [i.e. the 2014 proceedings] is to show at a later date that CITIC were doing the very things we were concerned about [in 2014] and had informed our decision making at an earlier date.

1. Whether the Mineralogy Parties' claims can be sustained at trial is another question, of course. But that is not a matter I need to address as part of these applications, given the principles to which I have earlier referred and my analysis as to the arguable breadth of the defences which the CITIC Parties rely upon.
2. Further, the broad enquiry permits a consideration of the steps which were not taken by the Mineralogy Parties, but which may have been open to them in order to appropriately respond to the effects of the alleged Fulcrum Purposes. For example, it is asserted by the CITIC Parties that the contentions pleaded by the Mineralogy Parties in the impugned paragraphs could, at most, provide a justification for seeking case management orders from the court in the RCB Proceeding. The CITIC Parties suggest the appropriate response ought to have been for the current claims in the FCD Proceedings to be the subject of case management orders, allowing those claims to be held in abeyance pending the determination of the matters which were ultimately the subject of the RCB Proceeding.[67]

1. Third, having regard to the foregoing matters, I consider the Fulcrum Purposes Pleading details a series of matters which at least arguably, at a factual level and on their face, demonstrate a rational connection between the manner of prosecution by the Mineralogy Parties of the RCB Proceeding and the existence and implementation of the so-called Fulcrum Purposes by the CITIC Parties.
2. That is, the reply pleadings allege that the CITIC Parties conducted their defences with the aim of delaying payment of sums to the Mineralogy Parties in order to exert commercial pressure (and in order to give effect, in part, to the Fulcrum Purposes).
3. The proposition advanced by the Mineralogy Parties, which is at least arguable and rational on the face of the pleading, is that maintaining the present claims in the RCB Proceeding would have increased the scope, time and costs of those proceedings, and been conducive to the CITIC Parties' asserted strategy. The pleaded replies contain appropriate and detailed facts and particulars, and there is no forceful suggestion from the CITIC Parties that they do not understand or cannot comprehend the pleading or the case being presented by the Mineralogy Parties.
4. Whether the allegations can be properly justified is a matter appropriately examined at trial, in the context of all the circumstances.

1. Fourth, returning to the judicial déjà vu remark I made at the start of these reasons, I have been taken by both Senior Counsel to previous judicial critiques of the Fulcrum Purposes Pleading. I do not understand there to be any submission made that the previous judicial analyses of the pleading must be taken, in the current proceedings, as a conclusive determination of the issues. Such a submission could not be advanced, in my view, given the various different contexts in which this pleading (in a different form) was presented in those earlier cases.
2. Ultimately, then, I am not confident there is much utility to be gained in exploring the detail of these earlier decisions and the manner in which the Fulcrum Purposes Pleading was either positively or negatively characterised by the courts in those cases. Context is everything.
3. Nonetheless, given the extensive written and oral argument on these matters, I propose to at least refer to the interlocutory decisions of the Court of Appeal and Quinlan CJ in the MCP Proceeding. I will start with the Court of Appeal's decision.

The Court of Appeal's decision in the MCP Proceeding

1. As already noted, I recognise that the Fulcrum Purposes Pleading has previously been carefully evaluated by the Court of Appeal, albeit in a different context, and found to be reasonably arguable in those contexts. This prior evaluation of the pleading represents an important aspect of the Mineralogy Parties' response to the Strike-out Applications. That is, the Mineralogy Parties invite the court to place great weight on the fact an intermediate appellate court has assessed the sufficiency of a pleading in similar form and concluded that the pleading was adequate.
2. The relevant analysis is found in the decision of the Court of Appeal in Mineralogy Pty Ltd v Sino Iron Pty Ltd [2022] WASCA 26. The Court of Appeal in that case heard an appeal from a decision by Kenneth Martin J to strike-out the Mineralogy Parties' defences in the MCP Proceeding (which is CIV 1915 of 2019), which also referred to and relied on the Fulcrum Purposes. The appeal challenged Kenneth Martin J's conclusions that the Fulcrum Purposes pleas did not disclose a reasonable defence to the CITIC Parties' claims.
3. It is true that, after the Court of Appeal's decision, Kenneth Martin J found the Fulcrum Purposes were not made out: Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 15] [2023] WASC 56 [2453].[68] However, his Honour expressly recognised that his brief observations on the issue were mere obiter and his Honour noted that the Fulcrum Purposes were only sparsely mentioned during the trial.[69]
4. By way of background to the issues raised in that case, I note that the CITIC Parties had brought claims alleging breach of contract, unconscionable conduct, and actionable estoppels. Mr Palmer was also sued as an accessory to the unconscionable conduct claim. Although described by the Court of Appeal as an over-simplification of the claims advanced, the following passages from the court's decision provide sufficient context for present purposes:[70]
   1. The CITIC parties allege that Mineralogy was obliged contractually to submit the 2017 MCPs (and take the other steps identified in [12] above) by a series of express and implied terms in the MRSLAs and other agreements - and breached those terms by failing to do so (SOC pars 141 - 146, 151 - 158, 162 - 173).
   2. The CITIC parties allege that Mineralogy's alleged failures and refusals amount to unconscionable conduct under the Australian Consumer Law (ACL) to which Mr Palmer has been an accessory. The CITIC parties rely on alleged conduct and behaviour going back to 2012. At the heart of the statutory unconscionability claim is an assertion that Mineralogy's alleged failures and refusals have been against commercial conscience (there being no reasonable basis for the failures and refusals) and have involved an unconscientious taking advantage by Mineralogy of its position as proponent under the State Agreement and holder of the relevant tenements (SOC pars 174 - 181, 200, 201 - 203).
   3. The CITIC parties allege that Mineralogy is estopped from failing and refusing to take the steps requested of it. They rely on both estoppel by convention and estoppel by representation and conduct. It is said that Mineralogy made representations and engaged in conduct which led the CITIC parties to reasonably expect that Mineralogy would take such steps as were necessary to enable Sino Iron and Korean Steel to exercise their rights to mine and export - such steps including submitting proposals under the State Agreement, granting further tenure and taking steps to enable the use of the tenure, as was reasonably required for implementation of the Sino Iron Project (SOC pars 182 - 199).
5. The CITIC Parties sought a variety of relief in that case. This included orders requiring Mineralogy to lodge certain mine plans and otherwise do that which Mineralogy was alleged to have failed and refused to do. For example, the CITIC Parties sought that Mineralogy grant such further tenure as was reasonably required and take steps to enable the establishment of the infrastructure and facilities provided for in the mine plans. The CITIC Parties also sought damages and compensation orders.[71]
6. The amended defence filed by the Mineralogy Parties in that proceeding, which was struck out in various respects by Kenneth Martin J, included pleas described by the Court of Appeal as 'arguably defensive to the CITIC parties' claims because they arguably answer or arguably undermine (at least in part) critical aspects of the CITIC parties' claims and the relief sought by the CITIC parties' (at [20]).
7. In the result, the Court of Appeal concluded that the Fulcrum pleas propounded a reasonable defence to the CITIC Parties' state of mind in the context of an estoppel claim.[72] The Court of Appeal also concluded that the Fulcrum Purposes were relevant to the defences asserted by the Mineralogy Parties to the statutory unconscionability claims.[73] Further, the Court of Appeal concluded that the Fulcrum Purposes Pleading presented a reasonably arguable defence to the contractual claims asserted by the CITIC Parties.[74]
8. It must be noted that the mere fact a pleading has been held to be sufficient, and to disclose arguable defences, for the purposes of a differently formulated proceeding involving different claims, provides no passport to the sufficiency of that pleading in all cases. Axiomatically, the pleading must be examined in the particular matter in which it has been filed, and in light of the particular causes of action or defences which are pleaded.
9. There are aspects of the reasoning of the Court of Appeal which are instructive for the purposes of the present applications, though. The Mineralogy Parties made a number of submissions in this respect in their written submissions.[75] In particular, Senior Counsel for the Mineralogy Parties placed emphasis on the approach of the Court of Appeal as appears from the court's reasons at [99]:

The Fulcrum Purposes pleas in 3FAD pars 15R(a) and (b) propound a reasonable defence if there is a reasonable argument that they might rebut or answer the CITIC parties' asserted state of mind, either wholly or in part, by establishing an object that is inconsistent with or that undermines the Reasonable Expectations that the CITIC parties allege as part of their case. To exclude such a reasonable defence the CITIC parties had to negate that possibility. It was not enough that there was not necessarily an inconsistency, irreconcilability or undermining or that the various states of mind could, in theory, all co-exist. To leave it at that level of abstraction is to admit of the possibility that the contract normalisation or costs recoupment object could be inconsistent with or detract from the state of mind that the CITIC parties allege to make good their estoppel causes of action. Rather, to exclude there being a reasonable defence it had to be shown that the positive case Mineralogy sought to advance by the Fulcrum Purposes pleas in pars 15R(a) and (b) was incapable of being inconsistent with or to otherwise have the effect of undermining the Reasonable Expectations state of mind alleged as part of the CITIC parties' estoppel claims.

1. The key point which emerges from this foregoing passage, as adapted to the present applications, is that, in order to succeed on the core conceptual point raised in the Strike-out Applications, it is necessary for the CITIC Parties to demonstrate that the responses pleaded by the Mineralogy Parties in the QNI Amended Reply and the PP Amended Reply are incapable of undermining the defences pleaded by the CITIC Parties. As the Mineralogy Parties submit, this is something of a heavy burden.[76] In my view, it is a burden the CITIC Parties cannot discharge on these applications, particularly given the breadth of the factual inquiries which are required, as previously discussed.
2. There is a further point to note in relation to the Court of Appeal's decision. The Court of Appeal held that the paragraph in the pleading before it which is equivalent to [71] of the QNI Amended Reply represented the universe of matters from which the Fulcrum Purposes could be inferred. One of those matters, referred to as the sterilisation purposes, could not however be sustained, according to the Court of Appeal.[77] The QNI Amended Reply and the PP Amended Reply now contain additional pleas in this regard, as explained by Senior Counsel for the Mineralogy Parties.[78] The sterilisation purposes are now said to be further supported by the matters pleaded in [73] to [80] of the QNI Amended Reply (and [69] to [76] of the PP Amended Reply).
3. It is thus submitted by the Mineralogy Parties that the evidential platform in the QNI Amended Reply and the PP Amended Reply is broader than that considered by the Court of Appeal.[79] Accordingly, it is submitted that I ought not follow the course of the Court of Appeal by rejecting the sterilisation purposes aspect of the plea as being unarguable. I accept the force of this submission and recognise the modification to the plea in the QNI Amended Reply and the PP Amended Reply has relevantly dealt with the criticisms of the plea as it was presented to the Court of Appeal in the matter to which I have just referred.

The Chief Justice's decision in the MCP Proceeding

1. The CITIC Parties have drawn my attention to the conclusions reached by Quinlan CJ in his decision in 2021, wherein his Honour summarily dismissed a stay application brought by the Mineralogy Parties in the MCP Proceeding: Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2021] WASC 170 (Quinlan CJ).[80]
2. The Chief Justice was there concerned with an application by the Mineralogy Parties to permanently stay the claims of the CITIC Parties in the MCP Proceeding before Kenneth Martin J. The application was premised on the proposition that the CITIC Parties had brought the proceedings for collateral and improper purposes (namely, the Fulcrum Purposes).
3. The CITIC Parties brought their own application in response, to strike-out or to summarily dismiss the permanent stay application. As noted above, this was the application before the Chief Justice. On that application, the court received into evidence the various matters relied on in support of the Fulcrum Purposes allegation. Quinlan CJ found that there was no substance in (and no reasonable basis for) the Fulcrum Purposes allegation. Accordingly, Quinlan CJ concluded that there was no reasonably arguable basis to contend that the CITIC Parties' substantive proceedings should be stayed as an abuse of process. The CITIC Parties' summary dismissal application was thus successful and the Mineralogy Parties' permanent stay application was dismissed on a summary basis.
4. I have been taken, during the course of argument, to various passages in the Chief Justice's reasons for decision. These passages, according to the CITIC Parties, support the conclusion that the facts relied upon by the Mineralogy Parties in their pleadings are incapable of sustaining an inference to the Fulcrum Purposes.[81] The relevant passages relied upon by the CITIC Parties in their submissions are quite lengthy but it is instructive to set them out in a relatively fulsome fashion.
5. The passages are as follows (with footnotes omitted):[82]

[237] There is nothing about [the RCA] proceedings to suggest an improper purpose on the part of the CITIC parties to vex Mineralogy. Indeed in the context of the litigation between the parties that has since developed, the Royalty Component A proceedings appear to have been a model of cooperation and focus between the parties. The factual background was almost entirely uncontentious, counsel having provided a substantial statement of agreed facts ...

[238] No adverse inference in relation to the purpose of either party is open from the dispute in the Royalty Component A proceedings.

[239] The Royalty Component B proceedings, it must be said, were not the CITIC parties' finest hour (at least in relation to the issues raised at first instance).

[240] The Royalty Component B proceedings also concerned a relatively narrow phrase in the MRSLAs: the words 'the prevailing published annual FOB price' as they appear in the formula for the calculation of Royalty Component B (disputed phrase) ...

[241] The Royalty Component B proceedings were therefore concerned with the continued operation (if any) of Royalty Component B in light of the cessation of the benchmark system.

[242] At trial, the CITIC parties contended, inter alia, that the effect of the cessation of the benchmark system was that Royalty Component B had become unascertainable and should be severed from the MRSLAs, leaving no 'value based' royalty payable to Mineralogy. Justice Martin's conclusion in relation to that contention was, characteristically, unambiguous:

So, on my assessment, a severance of [Royalty Component B] from the MRSLAs, upon whatever rival construction of the [disputed] phrase is ultimately arrived at, would always be a wholly untenable outcome.

Hence, I reject now as completely untenable the CITIC defendants' first tier [Royalty Component B] severance solution. It would be, I conclude, a 'solution' utterly destructive to the essential underlying MRSLA bargain and a proposition that was always thoroughly misconceived.

[243] I agree, for the reasons given by his Honour, that the severance argument put by the CITIC parties in the Royalty Component B proceedings was 'always thoroughly misconceived'. It was not maintained on appeal.

[244] Having rejected the severance argument, the principal focus of the Royalty Component B proceedings was upon the proper construction of the MRSLAs (and the disputed phrase in particular). In that regard the CITIC parties contended that there was an implied term to pay a fair and reasonable royalty, whereas Mineralogy contended that the MRSLAs should be construed, and could be applied, by reference to published export market price data.

[245] Both Martin J and the Court of Appeal accepted Mineralogy's case in this regard. There nevertheless remained differences in detail as to the calculation of Royalty Component B under the MRSLAs properly construed. While the Court of Appeal concluded that their preferred construction of Royalty Component B was 'broadly consistent' with Martin J's construction, their Honours said:

[Martin J] found, in effect, that 'PP' and 'CP' on their proper construction refers to the export market price, on a FOB basis ie excluding freight, insofar as it is publicly available or generally known, for the specified product.

However, the judge did not treat the word 'annual' as part of the italicised composite phrase ['prevailing published annual FOB price (expressed in US dollars per DMTU)']. Rather, he attributed to it a meaning to the effect that, in context with the word 'prevailing', it refers to the generally current price over the 12‑month period preceding the quarter in which the royalty is payable.

The burden of ground 1 of the appeal is to the effect that the judge should have found that 'PP' and 'CP' refer to benchmark prices as exhaustive criteria for the operation of Royalty B and that since the demise of the benchmark pricing system in 2010 (over three years before production commenced whilst Sino remained in occupation), the formula provided by cl 8.2 in relation to Royalty B has been unworkable. The CITIC parties have failed in establishing the burden of ground 1, in that they have failed to establish that 'PP' and 'CP' refer to benchmark prices as exhaustive criteria for Royalty B. Although they have had limited success, insofar as it may be accepted that the overall composite expression in which the disputed phrase appears contains a reference to benchmark prices, the judge was correct in substance insofar as his Honour found that 'PP' and 'CP' incorporated mere machinery.

[246] The result in the Royalty Component B proceedings was therefore an unqualified success for Mineralogy. As I have also said, the CITIC parties' contention that Royalty Component B should be severed from the MRSLAs was always thoroughly misconceived. It may therefore properly be said that it should never have been put.

[247] Nevertheless, there is, in my view, nothing in the reasons of Martin J or the Court of Appeal in the Royalty Component B proceedings to suggest that the cessation of the benchmark system did not give rise to a genuine justiciable controversy between the parties. Indeed the difference between the construction reached by Martin J and that preferred by the Court of Appeal (albeit relatively minor) illustrates that the proceedings raised issues of legitimate dispute.

[248] True it is that in the Royalty Component B proceedings the CITIC parties ran at least one argument that was always thoroughly misconceived. That does not, however, enable an inference to be drawn that the defence of the proceedings were motivated by the Fulcrum Purposes, or that the existence of the Fulcrum Purposes might be inferred from that defence.

[249] Rather, the Royalty Component B proceedings as a whole, illustrate the correctness of Edelman J's observation in Mineralogy [No 6] that:

When there are billions of dollars at stake there can sometimes be an unfortunate tendency to attempt to raise any and every issue that might be thought to be arguable.

[250] The 'unfortunate tendency' described by Edelman J has, from time to time, been on full display by both Mineralogy and the CITIC parties in all of the litigation between them. It is, of course, not a tendency confined to those parties, but is regrettably characteristic of almost all litigation conducted by extremely well resourced litigants in this Court. As much as that tendency may be a cause for lament on the part of the courts as a whole, and a matter against which the courts must remain constantly vigilant, it is unrealistic to attempt to draw an inference of a broad improper strategy, let alone the Fulcrum Purposes, from individual examples of that tendency on the part of one party.

[251] Indeed, insofar as the Royalty Component B proceedings were concerned, the history of the proceedings reveal that both Mineralogy and the CITIC parties, at different times, displayed the 'unfortunate tendency' described by Edelman J. For its part, it is apparent that, for a significant portion of the litigation, Mineralogy ran mutually inconsistent claims that, on one hand, the MRSLAs had been lawfully terminated by it in 2014 while, on the other hand, claiming contractual entitlements said to have accrued to it under the MRSLAs since that time.

...

[255] All of which is simply to recognise that the sometimes distracting panoply of issues raised by the parties over the past decade cannot provide any reasonable foundation for drawing an inference that one side (the CITIC parties) have been conducting all of the litigation in accordance with an elaborate strategy to misuse court proceedings for improper purposes.

[256] The CITIC parties' defence of the Royalty Component A and Royalty Component B proceedings do not arguably support the Fulcrum Purposes.

1. Senior Counsel for the CITIC Parties also drew my attention to the comments of the Chief Justice in relation to the evidence of Ms Rifici in the earlier SRF Proceedings.[83] The Chief Justice refers to that evidence at [305] - [312].[84] Senior Counsel identified this evidence given it is expressly pleaded by the Mineralogy Parties at [71(g)] of the QNI Amended Reply. The Chief Justice's comments on this evidence and related pleadings were as follows (footnotes omitted):

[308] In the application before me, Mineralogy submitted that Ms Rifici's evidence 'firmly establishes in terms the Fulcrum Purposes'. In my view, it did no such thing. At its very highest, Ms Rifici's evidence might be said to support the existence of the Contract 'Normalisation' Objective. But, as I have repeatedly emphasised, there is a large gulf between the Contract 'Normalisation' Objective and the Fulcrum Purposes.

[309] In particular, Ms Rifici did not say, nor indeed was she asked, whether the Fulcrum Group had, as one of its purposes:

to engage legal processes ... not for the purpose of vindicating any legal right or defence at law or complaint about a loss or injury bona fide held, but rather to achieve a collateral purpose being the Contract 'Normalisation' Objective ...

[310] Of course Mineralogy, quite properly, emphasised that Martin J's rejection of the sinister inferences sought to be drawn concerning the Fulcrum Group was based upon the 'limited evidence' in the SRF proceedings and that 'an issue of possible concern about such objectives might emerge, if some illegitimate or unlawful means had been suggested or resolved upon to further that end'.

[311] Mineralogy submits that the Points of Claim squarely raise illegitimate or unlawful means on the footing of evidence not before Martin J.

[312] It will be apparent that, in my view, the Points of Claim do not, either individually or collectively, arguably support such illegitimate or unlawful means. In my view, the matters relied upon by Mineralogy in support of the Fulcrum Purposes do not reveal a reasonably arguable case that the substantive proceedings have been commenced for collateral purposes. They certainly do not reveal a case sufficiently arguable to justify the time, expense and delay that would be occasioned by embarking on what would, in effect, be an interlocutory trial as to the CITIC parties' litigation strategy over the past decade.

1. The fact the Chief Justice reached conclusions of this nature, in related proceedings involving these parties, which are on their face adverse to certain of the contentions now pleaded by the Mineralogy Parties, is a matter which I expect the CITIC Parties will wish to deploy at the final trial of the current actions. The approach adopted by the Chief Justice, and the conclusions his Honour reached, appear to create several forensic obstacles for the Mineralogy Parties.
2. I do not, however, assess the interlocutory findings of the Chief Justice (made in the course of summarily dismissing a permanent stay application) as conclusively determining the factual issues which are pleaded by the Mineralogy Parties in the impugned paragraphs of the pleaded replies.
3. The Chief Justice's findings do not demand a particular course be adopted by the court in dealing with the present applications and I did not understand the CITIC Parties to submit that these findings require that the equivalent pleadings in the QNI Amended Reply and the PP Amended Reply be struck out as a result. Importantly, I note that the Court of Appeal's reasons to which I have earlier referred, which support the arguability of a pleading similar to the Fulcrum Purpose Pleading, were also made within the MCP Proceeding itself and following (and with full regard to) the decision of the Chief Justice.
4. Rather, I understood the CITIC Parties to place reliance on the Chief Justice's conclusions as part of the broader contention that the pleas are irrelevant to the Anshun estoppel defence.[85] In my view, these are matters properly left for the final trial of the present actions.
5. At the level of arguability, I remain of the view that the Fulcrum Purposes Pleading pleads out a series of factual matters which, on their face, demonstrate a rational connection between the manner of prosecution by the Mineralogy Parties of the RCB Proceeding and the existence and implementation of the so-called Fulcrum Purposes by the CITIC Parties.

1. Fifth, having reached the point that I consider the impugned pleadings present a rational and relevant response to the CITIC Parties' defences, at least at an interlocutory level, I turn to the case management considerations which were identified by the CITIC Parties.
2. Within their submissions, the CITIC Parties further supported these Strike-out Applications by reference to matters connected with the delay and additional resources which would flow from a decision to allow the Mineralogy Parties to maintain their pleadings in the current form.[86] Those submissions are to the following effect:

(a) if the Disentitling Conduct Pleas are allowed to remain in their present form, a 'further front' will be opened up in the litigation between the parties;
>
> (b) the resolution of this further front will inevitably consume substantial public and private resources, which the CITIC Parties seek to demonstrate by reference to the course of the stay application before Quinlan CJ in the MCP Proceeding (which involved the same allegations as appear in the Fulcrum Purposes Pleading in the FCD Proceedings); and
>
> (c) striking out the impugned paragraphs in the QNI Amended Reply and the PP Amended Reply would promote the just determination of the litigation, more efficiently dispose of the business of the court, and maximise the efficient use of the parties' and the court's resources.

3. In support of these above matters, the CITIC Parties placed reliance on the decision of Vaughan J in Girgis. The principles explained by Vaughan J in that authority are undoubtedly correct and the CITIC Parties are of course right to draw attention to the goal in O 1 r 4A RSC and the objects in O 1 r 4B RSC. The CITIC Parties correctly submit that a single irrelevant allegation that gives rise only to embarrassment is unlikely to be sufficient to justify striking out that allegation. Rather, the impugned plea must be such that it will prejudice, embarrass or delay the fair trial of the action.[87]
4. In approaching a strike-out application, the court will have regard to the overriding goals of case management which are enshrined in the Rules, namely the facilitation of the just, efficient, timely and cost‑effective resolution of the real issues in dispute.
5. O 1 r 4A RSC expressly provides that:

The practice, procedure and interlocutory processes of the Court shall have as their goal the elimination of any lapse of time from the date of initiation of proceedings to their final determination beyond that reasonably required for interlocutory activities essential to the fair and just determination of the issues bona fide in contention between the parties and the preparation of the case for trial.

1. However, having reached the conclusion that the QNI Amended Reply and the PP Amended Reply do not raise false issues, but rather plead out matters which form arguable bases upon which the CITIC Parties' defences might be undermined, I consider there is considerably less force in the case management and proportionality factors urged upon me by the CITIC Parties. These matters would certainly not, in my opinion, provide an independent basis for striking out the pleadings. The reply submissions filed by the CITIC Parties, as I understood them, accept this proposition.[88]
2. Moreover, it is pertinent to recognise that the claims made in these proceedings are substantial, in terms of the amounts claimed in the QNI Proceeding and the Palmer Petroleum Proceeding,[89] and the issues raised are extensive from a factual perspective (quite apart from the matters pleaded in the impugned paragraphs). Allied to this, from a case management perspective, no trial of the actions has yet been listed and we are some months away from any such hearing.
3. For these reasons, I am of the view that the case management considerations relied upon by the CITIC Parties should not be seen in this case as influential, much less determinative, in resolving the present applications. To all of these matters, I would add a final point, once again returning to the judicial déjà vu reference I made at the start of these reasons. The impugned paragraphs in the QNI Amended Reply and the PP Amended Reply have not been newly presented to the CITIC Parties by any means. The matters pleaded in these replies have been presented to the CITIC Parties on more than one occasion in the past, and indeed proceeded to trial in the MCP Proceeding before Kenneth Martin J, albeit in a somewhat different factual and legal context.
4. The important point to make here is that I can reasonably infer that the CITIC Parties have had a prior opportunity to assess the allegations, take instructions on them, and prepare evidentiary responses thereto. The fact these allegations are well known to the CITIC Parties has a tendency to soften the impact that these pleaded allegations might otherwise have had on the course of the proceedings and any further delays which will result. I deliberately say 'soften' in this regard, not 'eliminate'. The 'Disentitling Conduct Pleas' in the QNI Amended Reply and the PP Amended Reply, given their size and complexity, will of course consume a degree of trial time as well as engage the resources of the parties in the preparation of the matter over the coming months. Nonetheless, I cannot accept that these considerations are such as to preclude these arguable contentions proceeding to a final trial.

1. Finally, I should remark that the allegations contained in the QNI Amended Reply and the PP Amended Reply are particularly grave in nature. The Mineralogy Parties contend that the CITIC Parties defended the RCB Proceeding as part of a 'nefarious delaying strategy' (to use the language employed by the CITIC Parties in their submissions).[90] It is also alleged that the MCP Proceeding was commenced and maintained, at least in several respects, to further the Fulcrum Purposes and 'without any genuine belief in the alleged entitlement to certain relief sought' (again, to use the language employed by the CITIC Parties in their submissions).[91]
2. Allegations of this nature are undoubtedly serious.
3. These matters directly raise concerns that the court's processes were being misused in certain respects. The fact the allegations are serious is, of course, not a reason to preclude the claims proceeding to trial. Importantly, though, the court should remain mindful of the gravity of the allegations in managing the FCD Proceedings from this point through until trial.

1. For the foregoing reasons, I will dismiss the Strike-out Applications. In my view, and consistent with the general rule in O 66 r 1(1) RSC, the defendants (the CITIC Parties) should pay the costs of both applications, but I will hear from counsel as to the precise costs orders which should now be made.

SUMMARY OF THE RELATED PROCEEDINGS BETWEEN THE MINERALOGY AND CITIC PARTIES

This is the Royalty Component A proceeding which was the subject of Action CIV 2338 of 2012.

• This proceeding addressed the liability of the CITIC Parties to pay Royalty Component A (under the CITIC Negotiated Agreements) to the Mineralogy Parties.
• Determined at trial by Edelman J in Mineralogy Pty Ltd v Sino Iron Pty Ltd [2013] WASC 194.

This is the Royalty Component B proceeding which was the subject of Action CIV 1808 of 2013.

• This proceeding addressed the liability of the CITIC Parties to pay Royalty Component B (under the CITIC Negotiated Agreements) to the Mineralogy Parties.
• Determined at trial by Kenneth Martin J in Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 16] [2017] WASC 340.
• The proceeding was the subject of an appeal to the Court of Appeal, which was determined in Sino Iron Pty Ltd v Mineralogy Pty Ltd [2019] WASCA 80.

This is the Site Remediation Fund proceeding which was the subject of Action CIV 2840 of 2018.

• The Mineralogy Parties brought this proceeding seeking clarification of the meaning of contractual terms addressing the issue of mine site remediation funding obligations.
• Determined by Kenneth Martin J in Mineralogy Pty Ltd v Sino Iron Pty Ltd [2021] WASC 45.

This is the Mine Continuation Proposals proceeding which was the subject of Action CIV 1915 of 2019.

• The CITIC Parties brought these proceedings arising from the failure and refusal of the Mineralogy Parties to submit the 2017 Mine Continuation Proposals to the Minister for approval under the applicable State Agreement. The proceedings are sometimes referred to as the Tenure Proceedings.
• Determined by Kenneth Martin J in Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 15] [2023] WASC 56. This proceeding was also the subject of interlocutory examination by Quinlan CJ in Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2021] WASC 170 and by the Court of Appeal in Mineralogy Pty Ltd v Sino Iron Pty Ltd [2022] WASCA 26.

• the QNI Proceeding (Action CIV 2072 of 2017); and
• the Palmer Petroleum Proceeding (Action CIV 1267 of 2018).

• These are the current proceedings to which these reasons relate, known as the Fortescue Coordination Deed Proceedings or FCD Proceedings for short. The Mineralogy Parties have brought these proceedings pursuant to the FCD, seeking to recover damages for loss suffered, pursuant to a contractual indemnity granted to the Mineralogy Parties by the CITIC Parties.
• Presently being managed by Lundberg J.

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

[1] The relevant paragraphs under challenge are summarised at [39] - [50] of these reasons. The pleas appear in the reply pleadings under the heading 'Disentitling conduct of the Defendants'.

[2] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2021] WASC 170 (Quinlan CJ); Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 3] [2021] WASC 384 (Kenneth Martin J); Mineralogy Pty Ltd v Sino Iron Pty Ltd [2021] WASCA 53 (Buss P and Murphy JA); Mineralogy Pty Ltd v Sino Iron Pty Ltd [2022] WASCA 26 (Buss P, Beech and Vaughan JJA); and Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 15] [2023] WASC 56 (Kenneth Martin J).

[3] The FCD is dated 22 October 2008. The named parties to the FCD are Mineralogy Pty Ltd, Sino Iron Pty Ltd, Korean Steel Pty Ltd and CITIC Ltd. The FCD was not adduced in evidence in a formal manner for the purposes of these interlocutory applications but neither party objected to the court reviewing the instrument: ts 590.

[4] Palmer v CITIC Ltd [2017] WASC 253 (Le Miere J) (Stay application); Palmer v CITIC [No 2] [2019] WASC 14 (Kenneth Martin J) (Preliminary questions application); Palmer v CITIC [No 3] [2019] WASC 424 (Kenneth Martin J) (Discovery categories); Sino Iron Pty Ltd v Mineralogy Pty Ltd [2022] WASC 151 (Quinlan CJ) (Costs application); Palmer v CITIC [No 4] [2022] WASC 292 (Kenneth Martin J) (Strategic conference and timetabling); Palmer v CITIC [No 5] [2023] WASC 44 (Kenneth Martin J) (Directions and timetabling); and Palmer v CITIC [No 6] [2023] WASC 188 (Lundberg J) (Application to set aside subpoenas).

[6] Chamber summons for defendants' application to strike out the reply to the further re-amended defence to the fifth amended statement of claim filed 30 November 2022 (in CIV 2072 of 2017); and Chamber summons for defendants' application to strike out the reply to the re-amended defence to the second amended statement of claim filed 30 November 2022 (in CIV 1267 of 2018).

[7] The paragraphs under challenge in the QNI Amended Reply are [37] - [101].

[8] The paragraphs under challenge in the PP Amended Reply are [33] - [97].

[10] Defendants' submissions titled CITIC Parties' Outline of Submissions for Permanent Stay or Dismissal of the Plaintiffs' Actions' filed 6 May 2022; Plaintiffs' submissions titled 'Outline of Submissions in Opposition of the Defendants' Applications Permanent Stay or Dismissal of the Plaintiffs' Actions and Plaintiffs' Cross Applications' filed 20 May 2022; and the Defendants' submissions in reply titled 'CITIC Parties' Outline of Submissions in Reply for Permanent Stay or Dismissal of the Plaintiffs' Actions' filed 7 June 2022.

[11] Joint Note on Fulcrum Decisions received on 15 March 2023.

[13] CITIC Submissions [11] and ts 593 - 594 (referring in particular to the decision of Vaughan J (as his Honour then was) in Girgis v Poliwka [No 4] [2018] WASC 321 [51] - [56] and [67]).

[14] Vantage Holdings Group [60(g)] (Smith J).

[15] Vantage Holdings Group [60(h)] (Smith J).

[16] Vantage Holdings Group [60(f)] (Smith J).

[17] Lampson (Australia) Pty Ltd v Fortescue Metals Group [No 3] [2014] WASC 162 [44] (Edelman J).

[18] Vantage Holdings Group [60(i)] (Smith J).

[19] Vantage Holdings Group [60(j)] (Smith J).

[20] In the QNI Proceeding, the relevant pleading is found at [80] - [87] of the Further Re-Amended Defence dated 14 October 2022 (QNI FR Defence) under the heading 'Abuse of process and Anshun estoppel'. In the Palmer Petroleum Proceeding, see [72]-[73] of the Re-Amended Defence dated 14 October 2022 (PP Re‑Amended Defence) under the heading 'Anshun and abuse of process'.

[22] QNI FR Defence, [87(b)]; PP Re-Amended Defence, [73(b)].

[23] QNI FR Defence, [87(a)]; PP Re-Amended Defence, [73(a)].

[24] QNI FR Defence, [86(b)]; PP Re-Amended Defence, [72(b)].

[25] Mineralogy Submissions, [16] - [26].

[27] QNI Amended Reply, [36(a)] and [36(b)]; and PP Amended Reply, [32(a)] and [32(b)]. These matters appear under the heading 'Consolidated RCB Proceedings' in both replies.

[28] QNI Amended Reply, [36(c)]; and PP Amended Reply, [32(c)]. These matters also appear under the heading 'Consolidated RCB Proceedings' in both replies.

[30] QNI Amended Reply, [37]; PP Amended Reply, [33].

[33] The equivalent paragraphs in the Palmer Petroleum pleading are PP Amended Reply, [33] - [35].

[34] In this respect, I will draw upon the summary prepared by the CITIC Parties: CITIC Submissions, [36].

[35] QNI Amended Reply, [56] - [62]; PP Amended Reply, [52] - [58].

[36] QNI Amended Reply, [65]; PP Amended Reply, [61].

[37] QNI Amended Reply, [67]; PP Amended Reply, [63].

[38] QNI Amended Reply, [70]; PP Amended Reply, [66].

[39] QNI Amended Reply, [71] - [72]; PP Amended Reply, [67] - [68].

[40] QNI Amended Reply, [81]; PP Amended Reply, [77].

[41] QNI Amended Reply, [75] - [80]; PP Amended Reply, [71] - [76].

[42] QNI Amended Reply, [100]; PP Amended Reply, [96].

[45] Henderson v Henderson [1843] EngR 917; (1843) 3 Hare 100, 114-115; [1843] EngR 917; 67 ER 313, 319.

[46] CITIC Submissions, [20]. The CITIC Parties also referred to, among other authorities, Commonwealth of Australia v Albany Port Authority [2006] WASCA 185 [22] (Steytler P); Redowood Pty Ltd v Link Market Services Pty Ltd [2007] NSWCA 286 [53] (Hodgson JA, with whom Mason P and Bryson AJA agreed); C G Maloney Pty Ltd v Noon [2011] NSWCA 397 [69] - [71] (Campbell JA, with whom Tobias AJA agreed); and R v Carroll [2002] HCA 55; (2002) 213 CLR 635 [73] (Gaudron and Gummow JJ).

[47] Referring to Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; (2001) 53 NSWLR 198 [22] - [24]; Kermani v Westpac Banking Corporation [2012] VSCA 42; (2012) 36 VR 130 [114]; and Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93 [11], [21], [151] - [152], [154] and [190].

[49] Port of Melbourne Authority v Anshun Pty Ltd (598) (Gibbs CJ, Mason and Aikin JJ), (613) (Brennan J). Additionally, it is apparent that the issue of 'special circumstances' was raised in argument before the court (at 592).

[52] Mineralogy Submissions, [48] - [51].

[53] At [15], referring to Vehicle Monitoring Systems Pty Ltd v SARB Management Group Pty Ltd (t/as Database Consultants Australia) [2020] FCA 6 [40] (Yates J), among other authorities.

[54] UBS AG v Tyne [120] (Nettle and Edelman JJ).

[55] BC v Minister for Immigration & Multicultural Affairs [54] - [55].

[57] O'Brien v Tanning Research Laboratories Inc (1988) 14 NSWLR 601, 612 (Kirby P).

[59] See, for example, the QNI Amended Reply at [81], [92(b)], [93], [95] and [99(a)], which plead the implementation of the Fulcrum Purposes.

[60] As set out in the CITIC Submissions at [41] - [50] under Heading E thereof ('The Disentitling Conduct Pleas are irrelevant and raise false issues').

[61] As explained by the Mineralogy Parties in their written submissions (see Mineralogy Submissions, [41]).

[64] Sino Iron Pty Ltd v Palmer [No 2] [2014] QSC 287; Sino Iron Pty Ltd v Palmer [No 3] [2015] QSC 94; [2015] 2 Qd R 574; and QNI Resources Pty Ltd v Sino Iron Pty Ltd [2016] QSC 62. See ts 683.

[65] Senior Counsel for the CITIC Parties described the reliance on these authorities as misconceived (as explained at ts 712).

[67] CITIC Reply Submissions, [40] and ts 672.

[68] Kenneth Martin J published this judgment on 7 March 2023, the day before these Strike-out Applications were heard by me, on 8 March 2023.

[69] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 15] [2023] WASC 56 [2448] and [2461]. I also refer to the submissions of Senior Counsel for the CITIC Parties in relation to this decision at ts 643 - 645.

[70] Mineralogy Pty Ltd v Sino Iron Pty Ltd [2022] WASCA 26 [19].

[71] Mineralogy Pty Ltd v Sino Iron Pty Ltd [2022] WASCA 26 [21].

[72] Mineralogy Pty Ltd v Sino Iron Pty Ltd [2022] WASCA 26 [101] and [104].

[73] Mineralogy Pty Ltd v Sino Iron Pty Ltd [2022] WASCA 26 [112], [114] and [115].

[74] Mineralogy Pty Ltd v Sino Iron Pty Ltd [2022] WASCA 26 [130].

[75] Mineralogy Submissions, [56] - [69].

[77] Mineralogy Pty Ltd v Sino Iron Pty Ltd [2022] WASCA 26 [85]. In particular, the Court of Appeal held that par 15S of the pleading in that case failed to provide any support for deriving the Fulcrum Purpose plea at par 15R(c) (concerning the sterilisation purposes).

[82] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2021] WASC 170 [237] - [256] (Quinlan CJ).

[84] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2021] WASC 170 [305] - [312] (Quinlan CJ).

[85] The submissions are advanced by the CITIC Parties under Heading D to the CITIC Reply Submissions ('The Disentitling Conduct Pleas are irrelevant to the Anshun estoppel defence') and under the sub-heading, 'The facts relied on are incapable of sustaining an inference to the Fulcrum Purposes'.

[86] CITIC Submissions, [51] - [55], under Heading F thereof ('The Disentitling Conduct Pleas would unnecessarily delay resolution of the true issues in the FCD proceedings').

[87] CITIC Submissions, [14] referring to Girgis [96] (Vaughan J).

[89] Pleaded to be in the billions of dollars.