SINO IRON PTY LTD -v- MINERALOGY PTY LTD [No 2] [2021] WASC 170 (28 May 2021)

1. At the risk of oversimplification, some of the background to the substantive proceedings is, in broad terms, uncontroversial.
2. The first plaintiff (Sino Iron) and the second plaintiff (Korean Steel) are subsidiaries of the third plaintiff (CITIC).

1. Mineralogy,[5] Sino Iron and Korean Steel are all, along with others, parties to the Iron Ore Processing (Mineralogy Pty Ltd) Agreement (State Agreement or Agreement), a State agreement ratified by the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Act 2002 (WA).
2. As in the case of many agreements of its type, the State Agreement provides for the development and exploitation of mining tenements the subject of the Agreement, in accordance with proposals approved by the relevant Minister in the Government of Western Australia (Approved Proposals). The projects contemplated by the Agreement include mining activity in relation to 13 existing mining leases (08/118 to 08/130). Mineralogy is the registered holder of the mining leases and is 'the Company' within the meaning of the State Agreement. Under the Agreement, proposals to the relevant Minister must be submitted by the Company (i.e. Mineralogy), either alone or with co‑proponents.
3. Three of those mining leases (08/123, 08/124 and 08/125) (Sino Iron leases) are the subject of the Sino Iron Project, for which there are a number of Approved Proposals under the Agreement.[6] In accordance with the Sino Iron Project, broadly speaking, Sino Iron and Korean Steel hold mining rights authorising the extraction of iron ore from the Sino Iron leases.
4. Sino Iron and Korean Steel's rights in that regard are conferred, and regulated, by a number of agreements between them and Mineralogy. Those agreements include:

(a) the Mining Right and Site Lease Agreements (MRSLAs); and

1. The complex network of contractual arrangements between the parties is, of course, not confined to these agreements.[7] Nevertheless, for present purposes, it is sufficient to refer only to the MRSLAs and the Facilities Deeds.

1. The MRSLAs are, relevantly, two largely identical agreements entered into by Mineralogy with Sino Iron and Korean Steel respectively.[8] The MRSLAs confer on Sino Iron and Korean Steel mining rights to the Sino Iron leases and grant a sublease over an area defined in the MRSLAs as the Site Lease Area (Site Lease Area).
2. The Site Lease Area under the MRSLAs extends beyond the Sino Iron leases and includes areas for related activities, including tailings and waste storage, and port facilities. Relevantly, cl 4 of the MRSLAs provide:[9]

The Site Lease Area comprises each of the areas outlined in red in the plan attached to this Agreement as Annexure 1, situated within the Mining Leases, General Purposes Leases, Mining Leases 08/264, 08/265 and 08/266 and Miscellaneous Licence 08/20 or as otherwise agreed in writing between Mineralogy and Sino.

...

4.3 Reservations, terms and restrictions

The Site Lease is granted subject to the reservations, terms, conditions and restrictions contained in:

(a) this Agreement;

(b) the State Agreement;

(c) the Facilities Deed;

(d) the Mining Leases; and

(e) applicable Legal Requirements including Government Approvals.

(a) Subject to this Agreement, Sino shall be entitled to exclusive occupation of the Site Lease Area.

(b) Notwithstanding its right of exclusive possession, Sino will permit common carrier pipelines, roads and similar such facilities to deliver and transit over such Site Lease Area in accordance with approved Project Proposals under the State Agreement.

1. In exchange for the mining rights under the MRSLAs, Sino Iron and Korean Steel are obliged to pay Mineralogy royalties, as defined in the MRSLAs to include Royalty Component A and Royalty Component B.
2. Disputes over the CITIC parties' liability to pay Royalty Component A and Royalty Component B have previously been significant theatres of conflict between Mineralogy and the CITIC parties:

(a) the liability of Sino Iron and Korean Steel to pay Royalty Component A was the subject of this Court's decision in Mineralogy Pty Ltd v Sino Iron Pty Ltd[10] (Royalty Component A Decision); and

(b) the liability to pay Royalty Component B was the subject of Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 16][11] and Sino Iron Pty Ltd v Mineralogy Pty Ltd.[12]

1. Mineralogy was substantially successful in those particular disputes.

1. The Facilities Deeds are, again, largely identical agreements entered into by Mineralogy with Sino Iron and Korean Steel respectively.[13]
2. The Facilities Deeds relate to the construction and use of facilities on land defined in the Facilities Deeds as the Preston Area. The Preston Area is an area originally covered by exploration licence 08/636, and includes port terminal facilities that are part of the Sino Iron Project.[14] That area, at least in part, is the subject of general purpose leases under the Mining Act 1978 (WA), including G08/53, G08/54, G08/63 and G08/74. The CITIC parties spent billions of dollars constructing various facilities in the Preston Area, including port facilities, for the purposes of the Sino Iron Project.
3. It is a significant feature of the Facilities Deeds that they make provision for the potential use of the Preston Area for a number of different mining operations. Indeed, not only are the Facilities Deeds with Sino Iron and Korean Steel largely identical, those Deeds are two of six identical Deeds entered into by Mineralogy at the same time (in contemplation of other projects under the State Agreement).[15]
4. The Facilities Deeds provide a hierarchy of definitions in relation to 'Facilities' that are subject to the Deeds.[16] 'Facilities' are defined broadly and include any facilities in the Preston Area that are approved by Mineralogy from time to time.
5. Under that broad definition, the Facilities Deeds provide for 'Company Facilities' (or 'Approved Company Facilities') and 'Shared Facilities' (or 'Approved Shared Facilities'). 'Company Facilities' are those approved and developed by the relevant 'Company' (i.e. Sino Iron or Korean Steel as the case may be). 'Shared Facilities' are facilities identified by Mineralogy as facilities which may service more than one user. Where facilities are so identified in accordance with the Facilities Deeds, Approved Company Facilities can become Approved Shared Facilities.[17]
6. The Facilities Deeds have also been the subject of significant litigation between the parties.[18]
7. In those disputes it was the CITIC parties that were successful, both at first instance and on appeal.
8. Those proceedings, which were heard in the Federal Court, were particularly concerned with the facilities at the port at Cape Preston (the Port). In the application before me, those proceedings were referred to as the Port proceedings. The Port proceedings have chapters all of their own later in these reasons.

1. At its most basic level, the substantive proceedings in the present case concern the CITIC parties' desire to expand their operations as part of the Sino Iron Project. In broad terms, the CITIC parties seek, inter alia, to:[19]

(a) extend the mine pit within the Sino Iron leases;

(b) increase tailings and waste capacity on existing tenements and onto additional tenements (including G08/53, G08/54 and G08/63);

(c) increase the capacity of existing stockpiles and associated infrastructure at the Port; and

1. In pursuit of these ends, the CITIC parties prepared a number of Mine Continuation Proposals for submission to the Minister under the State Agreement for approval under that Agreement.[20] As I have noted at [10] above, under the terms of the State Agreement, proposals must be submitted by Mineralogy, either alone or with co‑proponents. There is no capacity for the CITIC parties to submit proposals for approval under the Agreement without the involvement of Mineralogy.
2. Of most relevance to the substantive proceedings are proposals defined in the Statement of Claim as the 2017 MCPs. The 2017 MCPs seek approval for the activities described at [27] above. According to the Statement of Claim th[21]2017 MCPs:21

(a) constituted the further proposals which had been foreshadowed in the 2010 Approved Proposals to enable full implementation of the Sino Iron Project after approximately the first five years;

(b) did not seek to alter the mining, processing and tailings production rates in the Approved Proposals but rather proposed ... steps to enable continuation of the existing operations of the Sino Iron Project approved under the Approved Proposals and to ensure continuous operation of the Sino Iron Project as required by the State Agreement.

1. The CITIC parties plead that, on and from 18 December 2017, they requested that Mineralogy submit the 2017 MCPs to the Minister for approval under the State Agreement.[22] They also plead that Mineralogy has failed, and refused to, submit the 2017 MCPs to the Minister for approval under the State Agreement.[23]
2. While Mineralogy denies that the relevant correspondence on behalf of the CITIC parties constituted valid 'requests' and says that the 2017 MCPs are not in a form capable of submission, it does not appear to be in dispute that the CITIC parties sent that correspondence to Mineralogy, or that Mineralogy has not submitted the 2017 MCPs to the State.[24] The CITIC parties also plead that the Director General of the relevant State government department requested that Mineralogy carefully consider submitting the 2017 MCPs to the Minister.[25]
3. In addition to the 2017 MCPs, the CITIC parties also plead that they made requests of Mineralogy that it:

(a) agree to the expansion of the Site Lease Area within the meaning of the MRSLAs to include certain areas falling within the footprint of the 2017 MCPs;[26]

(b) take steps to secure changes to the purposes of the areas covered by G08/53, G08/54 and G08/63 to include purposes consistent with the 2017 MCPs;[27] and

(c) submit, or authorise the CITIC parties to submit, a program of works to the Department of Mines, Industry Regulation and Safety, which they plead are 'critical' to further define the works required for the 2017 MCPs.[28]

1. Again, while it denies the how and the why, there does not appear to be any dispute that Mineralogy has not acceded to the CITIC parties' requests in relation to these matters.[29]
2. The CITIC parties contend that the failure of Mineralogy to submit the 2017 MCPs to the Minister for approval under the State Agreement and to take the other steps referred to above, constitute breaches of Mineralogy's contractual obligations, unconscionable conduct within the meaning of the Australian Consumer Law (ACL) and actionable estoppels.
3. On these bases, the CITIC parties seek relief in the substantive proceedings to compel Mineralogy to take those steps. The relief claimed in the Statement of Claim includes the following:

1. Orders for specific performance, alternatively injunctions under s 232 of the ACL, alternatively orders under ss 237 and 243 of the ACL, alternatively injunctions under the general law, requiring Mineralogy to, forthwith: 1. jointly with Sino Iron, submit the 2017 Sino Iron MCP to the SA Minister for approval under the State Agreement; and 2. jointly with Korean Steel, submit the 2017 Korean Steel MCP to the SA Minister for approval under the State Agreement. 2. Orders for specific performance, alternatively injunctions under s 232 of the ACL, alternatively orders under ss 237 and 243 of the ACL, alternatively injunctions under the general law, requiring Mineralogy to, forthwith: 1. agree in writing with each of Sino Iron and Korean Steel that the Site Lease Area, within the meaning of clauses 1.1 and 4.1 of each of the Sino Iron MRSLA and the Korean Steel MRSLA, comprises each of the areas outlined in the map in Annexure 11 to this statement of claim; and 2. alternatively to (a), grant to Sino Iron and Korean Steel such further tenure as the Court determines is reasonably required by Sino Iron and Korean Steel for the purposes of the 2017 MCPs, upon such terms as the Court determines are reasonable.

1. Orders for specific performance, alternatively injunctions under s 232 of the ACL, alternatively orders under ss 237 and 243 of the ACL, alternatively injunctions under the general law, requiring Mineralogy to, forthwith take the following steps to secure the repurposing of G08/53, G08/54 and G08/63 to enable the establishment of the infrastructure and facilities provided for in the 2017 MCPs: 1. conditionally surrender each of G08/53, G08/54 and G08/63, such surrender being conditional upon the grant of the general purpose leases referred to in subparagraph (b) below; and 2. apply for the grant of general purpose leases over the areas presently covered by G08/53, G08/54 and G08/63, with purposes consistent with the proposed usage of those areas identified in the 2017 MCPs.

1. Orders for specific performance, alternatively injunctions under s 232 of the ACL, alternatively orders under ss 237 and 243 of the ACL, alternatively injunctions under the general law, requiring Mineralogy to, forthwith, submit the PoW to DMIRS for assessment, or authorise CPMM to submit the PoW to DMIRS for assessment on behalf of Mineralogy.
2. The references to 'specific performance' in this context are probably more properly characterised as being claims for mandatory injunctions, a matter discussed by Martin J in Sino Iron Pty Ltd v Mineralogy Pty Ltd.[30]
3. In addition to these coercive orders, the prayer for relief in the Statement of Claim also includes claims by the CITIC parties for damages and other forms of compensation for the alleged breaches.
4. As I have already observed, the legal bases pleaded by the CITIC parties for the various forms of relief are manifold: breach of contract, unconscionable conduct and actionable estoppel.
5. The contractual claims themselves are based on a complex process of construction and implication in relation to a number of contractual agreements, including (but not limited to) the State Agreement and the MRSLAs. The pleading, as a whole, is nothing if not inventive. A partial 'journey' through the pleaded process of construction and implication was undertaken by Martin J in Sino Iron Pty Ltd v Mineralogy Pty Ltd.[31]
6. It is not necessary, for present purposes, to embark upon that journey again. Notwithstanding Mineralogy's occasional references to the 'romancing nature'[32] of the terms sought to be implied by the CITIC parties and the suggestion that 'the prospects of making good the implied term don't look flash',[33] there has not been, since the Statement of Claim was filed by the CITIC parties on 23 October 2018, any application by Mineralogy to strike out any part of the Statement of Claim on the basis that it fails to disclose a reasonable cause of action. It is too late to bring such an application now.
7. Nor, in my view, would it be appropriate for this application, or indeed the stay application, to be a Trojan horse for what is, in truth, a strike out application or application for summary judgment. In the absence of a properly formulated application to that effect, it would, in my view, be inappropriate to treat the novel, and in some respects inventive, parts of the substantive proceedings as, for that reason, failing to disclose a reasonable cause of action.
8. Nor, to be fair, did Mineralogy put its case before me on that footing. Rather, it submitted that the apparent novelty of the claims made in the substantive proceedings was a consideration that goes to show that the proceedings were brought for a collateral purpose, and have not been brought for the genuine purpose of advancing the legal claims made therein.[34]
9. For the purposes of this application, and in particular whether there is an arguable basis for Mineralogy's contention that the substantive proceedings have been brought for a collateral purpose, I have had regard to the extent that the CITIC parties may be said to raise novel or ambitious claims. I will return to those matters in due course.

1. As noted at the outset, Mineralogy's application for a permanent stay centres around the contention that the CITIC parties have brought the substantive proceedings (and indeed have brought, and defended, other proceedings) for collateral and improper purposes. Those purposes were described in Mineralogy's submissions as 'the Fulcrum Purposes'.
2. The nature of the issues sought to be raised in the stay application are set out in a comprehensive Points of Claim, which was amended by Mineralogy shortly prior to the hearing before me.[35]
3. The Points of Claim commence with much of the background to the Sino Iron Project, including what Mineralogy pleads were significant cost overruns on the Project as well as very substantial losses by CITIC on the Hong Kong Stock Exchange in 2008.[36]
4. As a consequence of these matters, the Points of Claim allege that, by no later than May 2010, CITIC formed the view that it was dissatisfied with the agreements the CITIC parties had reached with Mineralogy[37] and resolved to alter those contractual arrangements. The Points of Claim define CITIC's objectives in this regard as the Contract 'Normalisation' Objective.[38]
5. Mineralogy contends that, consistent with the Contract 'Normalisation' Objective, representatives of CITIC advised representatives of Mineralogy that it wished to vary the royalty formula and to 'negotiate [a] new contract'.[39]
6. Assuming all of this to be the case (as I do for the purposes of this application), to this point the Points of Claim are unremarkable.

1. The critical allegation in the Points of Claim comes next and concerns the creation of a group of senior executives and advisors of the CITIC parties, known as the Fulcrum Group, of which Ms Helen Dillon, a deputy director of CPMM, is said to have been appointed as the 'lead'. As to this last matter Mineralogy rely upon an affidavit affirmed by Ms Dillon on 19 November 2012 to the effect that she had been appointed 'to lead a team of people that had been established to address various issues concerning the Project which concerned the interaction between CITIC and Mineralogy'.[40]
2. Again so far, so unremarkable. There is not a hint in Ms Dillon's affidavit that the 'team' she was appointed to lead was in any way clandestine or sinister.
3. The allegation of a sinister purpose to the Fulcrum Group commences from [35] of the Points of Claim, which alleges:

The purposes of the Fulcrum Group included to achieve the Contract 'Normalisation' Objective by the:

(a) use legal proceedings, including as moving party and resisting party, to apply commercial pressure to Mineralogy and Mr Palmer to agree to alter the contractual relationship between the parties under the CITIC Negotiated Agreements, rather than to vindicate any bona fide claim or defence;

(b) use legal proceedings by complaints to regulatory and law enforcement authorities to apply commercial pressure to Mineralogy and Mr Palmer to agree to alter the contractual relationship between the parties, rather than to have some bona fide wrong sanctioned or loss recovered;

(c) by the use of legal proceedings as alleged in (a) and (b) above, to enable CITIC to recoup the unexpected costs of developing the Sino Iron Project directly from Mineralogy or indirectly from Mineralogy by denying to it sums to which it was entitled, including royalties, and potentially thereby rendering it insolvent and leaving CITIC able to pursue the Sino Iron Project on terms more favourable to it;

(d) thereby to engage legal processes in the manner alleged in (a) to (c) above 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 (the Fulcrum Purposes) ...

1. The allegation that the CITIC parties developed a strategy in the form of the Fulcrum Purposes, as defined, is an allegation of the utmost seriousness. It is necessary to recognise that the allegation involves two distinct components:

(a) that litigation (including the substantive proceedings) is to be used for collateral purposes (i.e. commercial pressure); and

(b) that litigation has been commenced, or conducted, not for the purposes of vindicating any bona fide legal position.

1. The Points of Claim are admirably clear in identifying the basis upon which Mineralogy alleges that the Fulcrum Purposes may be found or inferred. Mineralogy has, again admirably, nailed its colours to the mast in a manner that enables an assessment to be made as to whether there is an arguable basis for the allegation. I will therefore set them out in full. At Points of Claim [35](e) Mineralogy pleads:

(e) the Fulcrum Purposes are recorded in, and/or may be inferred from, the following documents and testimony:

(i) The Project Fulcrum Budget (Mineralogy) dated 30 September 2010 budgeted for a contractual obligation to pay:

(1) $20m to the Site Remediation Fund by June of 2011(at rows 32 and 500);

(2) $14.8225 m for Royalty A by December 2011 (rows 40, 570‑575 and 612); and

(3) $280.630515 m for Royalty B by December 2011(rows 41, 577‑595 and 613);

(ii) CITIC Pacific Mining Management, Department Plan and Budget for the calendar year 2013, dated 16 October 2012 recorded:

(1) the reason for 'Project Fulcrum' was '[d]ue to the poor contracts that were entered into in 2006 and 2008 and on the Sino Iron and Korean Steel Projects, there is a requirement to normalise the contracts as far as possible towards industry standards' (at .0077);

(2) the forecast contractual obligations to pay royalties to Mineralogy under the CITIC Negotiated Agreements of $5.265m for Royalty A, $72.734m for Royalty B and $230.073m for what it described as the Royalty Penalty for the calendar year 2013 (at .0051);

(3) '... there is a dispute related to royalties that is currently between the parties. It is expected that this dispute may affect the timing of payment in relation to the Royalty Penalty and Royalty Component B as such the following has been removed from the 2013 base budget forecast. A request has been made to ensure that the following [being the $230.073m and $72.734m] can be easily accessed if required to fulfill a short notice requirement.' (at .0051) Thus, the purpose for the defending of the proceedings was to delay a payment known to be payable, rather than attempt to vindicate a defence that was believed to be arguable;

(4) in relation to the Site Remediation Fund and the request for payment into the fund by Mineralogy, '[t]he request from Mineralogy was denied on the grounds it was unreasonable, however it should be noted that there is a contractual obligation for Sino Iron and Korean Steel to contribute towards a Site Remediation Fund. Negotiations are occurring with Mineralogy to explore other options such as a corporate guarantee to fulfil this obligation. If this negotiation is successful, then it will require changes to the project agreements to solidity [sic] fulfilment of this obligation. Either way, this is a risk that is currently being managed by the Special Projects team. Consequently, a request has been made to ensure that ~$75Million can be easily accessed if required to fulfill this requirement.' (at .0050) Thus, the basis for the refusal to pay any amount was the desire to use the non‑payment of an amount contractually obliged to facilitate the negotiation of different contractual terms: [CPM.518.004.0047]

(iii) On 16 October 2012 Ms Dillon emailed Dr Hua and Mr Walkland:

(1) recording 'Attached is updated after conversation with Charles. He has asked me to move $75 Million and the Royalty B + Royalty Penalty to 2014. The reason being that the Royalties will be in dispute, and we will be negotiating for guarantees instead of payment of the Site Remediation Fund.';

(2) such correspondence recorded the belief in an existing contractual obligation to make the payments and the use of the defence of the proceedings to defer such payments: [CPM.523.003.1670]

(iv) Notwithstanding the acceptance of the obligations in relation to the SRF (defined in paragraph [53] under the CITIC Negotiated Agreements as recorded at sub‑paragraphs [35](e)(i), [35](e)(ii), and [35](e)(iii) above, Sino and Korean have not contributed to the Site Remediation Fund and defended proceedings for them to pay into it as alleged in paragraphs [54] to [57] below;

(v) Notwithstanding the acceptance of the obligations in relation to Royalty Component A and B under the CITIC Negotiated Agreements as recorded at sub‑paragraphs [35](e)(i), [35](e)(ii), and [35](e)(iii) above, Sino and Korean refused to pay any of the royalties until forced by court order and defended proceedings for them to pay those royalties as alleged in paragraphs [37] to [52] below;

(vi) During a telephone call on 13 February 2013 between Mr Woods of Allens and Mr Prescott of HopgoodGanim, Mr Woods said words to the effect that assuming litigation in respect of Royalty Component B is commenced and that eventually Mineralogy wins everything, bearing in mind the other litigation on foot (which was already 8 months old), when did Mineralogy think it would reach conclusion of the Royalty Component B litigation;

(vii) The conduct of the Cosmo Proceeding as alleged in paragraphs [58] to [64] below;

(viii) The criminal complaints as alleged in paragraphs [65] to [67] below;

(ix) Spreadsheet titled '2017 Risk Assessment Table' stating that a strategy to deal with 'Legal Dispute Risk' included 'Civil or criminal suit to deal with the risk' and that the statement was made in the context of disputes with Mineralogy and Mr Palmer: [CPM639.173.2597]

(x) The normalisation of the CITIC Negotiated Agreements referred to in sub‑paragraph [35](e)(ii) above was a reference to CITIC's desire to alter the contractual arrangements with Mineralogy and Mr Palmer under the CITIC Negotiated Agreements because the commercial terms effected by those agreements were one Sino and Korean considered unsatisfactory. (evidence of Ms M.L. Rifici in CIV 2840 of 2018, 19/11/20 t pp 320‑322).

1. As can be seen, a number of the matters relied upon in support of the allegation as to the Fulcrum Purposes consist of specific documents and testimony (Points of Claim [35](e)(i), (ii), (iii), (vi), (ix), and (x)). For the purposes of the application, I received into evidence each of those documents and the transcripts of the relevant testimony. Each of them are addressed later in these reasons.
2. The other matters in support of the allegation as to the Fulcrum Purposes concern prior court (and other) proceedings which Mineralogy contends are both evidence of, and were conducted in furtherance of, the Fulcrum Purposes (Points of Claim [35](e)(iv), (v), (vi), (vii), and (viii)). Those proceedings are:

(a) proceedings in this Court in relation to Royalty Component A (referred to at [17(a)] above);

(b) proceedings in this Court in relation to Royalty Component B (referred to at [17(b)] above);

(c) proceedings in this Court concerning the Site Remediation Fund required to be established under the MRSLAs (SRF proceedings). The SRF proceedings were the subject of Martin J's recent decision in Mineralogy Pty Ltd v Sino Iron Pty Ltd[41] (SRF Decision);

(d) proceedings in the Supreme Court of Queensland commenced by Sino Iron and Korean Steel against Mr Palmer and Cosmo Developments Pty Ltd (Cosmo proceedings); and

(e) complaints in relation to alleged criminal conduct by Mineralogy (including Mr Palmer) to authorities, including the Western Australia Police Force and the Australian Securities and Investments Commission (ASIC).

1. Each of these matters are the subject of further pleading in the Points of Claim, but they each allege that the relevant conduct was engaged in as part of the Fulcrum Purposes.
2. The Points of Claim culminate in the allegation (at [72]) that the substantive proceedings have been commenced:

(a) as part of the Fulcrum Purposes;

(b) 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;

(c) to vex Mineralogy with proceedings that are likely to lead to a trial that will 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; and/or

(d) as part of a number of proceedings, as described in Section H above, having the effects described in paragraph 75A below.

1. The effects described in paragraph [75A] are that the CITIC parties:

(a) have commenced, or by their conduct forced Mineralogy to commence, multiple proceedings as part of the Fulcrum Purposes;

(b) have acted in a manner that is vexatious and/or oppressive to Mineralogy; and

(c) by reason of (a) and/or (b) above, have brought the administration of justice into disrepute.

1. As will become apparent, by this pleading, Mineralogy seeks to invoke each of the 'typical' characteristics identified by the High Court of Australia exhibited by cases of abuse of process.[42]

1. As I noted above, Mineralogy amended its Points of Claim shortly prior to the hearing before me. The most substantial amendment was to include a separate and distinct allegation of abuse of process, beyond that said to arise from the Fulcrum Purposes (although it also includes reference to the Fulcrum Purposes).[43]
2. That allegation is said to arise from the Port proceedings (referred to at [24] to [26] above). Mineralogy contends that the Port proceedings finally settled certain questions of construction of the Facilities Deeds. In particular, Mineralogy contends that the Port proceedings finally determined the following propositions adver[44] to the CITIC parties:44

(i) there was an unconstrained entitlement to third party use of the facilities constructed by the plaintiffs[45] at the Port by the plaintiffs leaving space for further facilities to be developed separately in the future; ....; and further

(ii) that facilities constructed by the plaintiffs at the Port of Cape Preston could become 'Shared Facilities' under the Facilities Deeds entered into between Mineralogy and Sino Iron and Mineralogy and Korean Steel respectively; ...;

(iii) the facilities constructed by the plaintiffs at the Port could become 'Shared Facilities' if another user of the port were to require access to the facilities; ... ;

(iv) if the facilities became 'Shared Facilities', Mineralogy would own the facilities; ...;

1. Mineralogy then contends that the substantive proceedings are an abuse of process (or alternatively give rise to issue or Anshun estoppels) for the reasons that:

(g) a consequence of the relief sought in [the substantive proceedings] is that no other user could use the facilities at the Port because of the nature and extent of the tenure sought by the [CITIC parties];

(h) the 'Mine Continuation Proposals' and the proposed extension to the Site Lease Area seek to achieve the same practical outcome as the construction of the Facilities Deeds [said to be advanced by the CITIC parties in the Port proceedings], namely exclusive use of the Port for the [CITIC parties], which construction was rejected in the Port Judgments, in favour of the different construction of the Facilities Deeds pleaded in paragraph 72A (b) above;

1. As a consequence of all of the matters pleaded in the Points of Claim, Mineralogy seeks orders in the stay application that:

[76] [The substantive proceedings] be permanently stayed.

[76A] Alternatively, [the substantive proceedings] be permanently stayed and the statement of claim be struck out to the extent it raises matters the subject of issue, Anshun or abuse of process estoppels arising by reason of the Port Judgments.

1. As will be apparent, the alternative relief sought (in Points of Claim [76A]) is focused particularly on the allegations in the Points of Claim concerning the Port proceedings. It will be convenient, in due course, to deal with that issue separately.
2. Before turning to the principles to be applied as to abuse of process, it is necessary to address a preliminary issue concerning the approach to be taken by the Court in the application before me, which is an application to strike out or summarily dismiss the stay application.

Summary determination of interlocutory applications

1. Mineralogy's Written Submissions raised what it described as an in limine objection to the CITIC parties' application to strike out or summarily dismiss the stay application. It submitted that the CITIC parties had 'failed to identify any jurisdictional basis on which [the Court] may dismiss or strike out an interlocutory application' and so the CITIC parties' summons should be dismissed.[46]
2. The submission was a little coy. Mineralogy did not go so far as to submit that there was no jurisdictional basis upon which the Court may summarily dismiss an interlocutory application, merely that the CITIC parties had failed to identify one.
3. As I did during the hearing of the application, I should explain why there is such a jurisdictional basis and set out the approach I have taken to this application generally.
4. The starting point is to recognise that interlocutory processes, however important, all exist in the service of the attainment of justice in the substantive dispute that has been brought before the Court for determination. They are not ends in themselves.[47]
5. The Court's power to control its own processes is, of course, not confined by the interlocutory processes prescribed by the Rules of the Supreme Court 1971 (WA) (Rules). The Court's inherent power to control the conduct of a proceeding, which is not affected by the Rules,[48] extends to such orders as are necessary to enable the Court to uphold, protect and fulfil the judicial function by ensuring that justice is administered, both in a particular case and as a continuing process, according to law and in an effective manner.[49]
6. A party has a right to invoke the jurisdiction of the courts, and where jurisdiction exists, access to the courts by a litigant is a right.[50] A party does not, however, have an unqualified right to bring, and have determined, interlocutory applications. Whether an interlocutory application is determined summarily, or following a full hearing, will depend upon the extent to which it serves the ultimate attainment of justice and may involve issues of proportionality.
7. These principles, which must exist as part of the Court's control over its own processes, are expressly recognised in the Rules.
8. Order 1 r 4A of the Rules, for example, provides:

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. Similarly, O 1 r 4B provides, in relation to the management of actions, causes and matters in the Court:

(1) Actions, causes and matters in the Court will, to the extent that the resources of the Court permit, be managed and supervised in accordance with a system of positive case flow management with the objects of -

(a) promoting the just determination of litigation; and

(b) disposing efficiently of the business of the Court; and

(c) maximising the efficient use of available judicial and administrative resources; and

(d) facilitating the timely disposal of business; and

(e) ensuring the procedure applicable, and the costs of the procedure to the parties and the State, are proportionate to the value, importance and complexity of the subject matter in dispute; and

(f) that the procedure applicable, and the costs of the procedure to the parties, are proportionate to the financial position of each party.

(2) These rules are to be construed and applied and the processes and procedures of the Court conducted so as best to ensure the attainment of the objects referred to in subrule (1).

1. An interlocutory application that would not best ensure the attainment of the objects set out in O 1 r 4A and r 4B, is one that the Court should decline to devote any further resources than are necessary to do justice to the parties.
2. This will be particularly so, where the interlocutory application brought by a party would itself occasion substantial hearing time, expense and potential delay. Mineralogy's stay application in the present case, for example, would itself involve the use of significant court time and resources. Indeed, it would be an interlocutory application whose time and expense would exceed that of a great many trials in this Court. Even the application before me, to identify whether it was arguable, involved a substantial commitment of time and resources by the Court and the parties.
3. It could not be the case that the Court is unable, in controlling its own processes, to summarily determine that an interlocutory order sought by a party is not arguable, such that it should not proceed to a 'full hearing'. To so conclude would involve the Court becoming hostage to its own processes. Indeed, it is one of the (many) ironies of this case that the very power that Mineralogy invokes in the stay application (namely the inherent power of the Court to control its own processes) is the very jurisdictional basis that it coyly submits that the CITIC parties had 'failed to identify' for its application to summarily dismiss the stay application.
4. Rather, in my view, in a case such as the present, where it is open to determine, following a reasonable opportunity for each party to be heard, that there is no reasonably arguable basis for an interlocutory order sought in the proceedings, the Court has power in a clear case to dismiss the interlocutory application without a 'full hearing'.
5. In the present case, I have approached the issue as to whether Mineralogy has an 'arguable' basis for a permanent stay of the substantive proceedings (or the alternative relief), in terms of whether, on the basis of the material pleaded in the Points of Claim, the stay application is reasonably capable of being argued, in the sense that it has some prospect of success.[51]
6. In this regard, as I have said above, the Points of Claim are admirably clear in identifying the basis upon which Mineralogy alleges that the Fulcrum Purposes may be found or inferred so as to enable an assessment to be made as to whether there is an arguable basis for that allegation.

1. The parties were agreed as to a number of the principles in relation to the power of courts to prevent an abuse of process.
2. Those principles were recently the subject of the decision of the High Court in Lunt. In Lunt the plurality confirmed, in the context of an application to stay proceedings:[52]

The fundamental responsibility of a court is to do justice between the parties to the matters that come before it. In the performance of that function, the doing of justice may require the court to protect the due administration of justice by protecting itself from abuse of its processes. The power to stay, or summarily dismiss, proceedings because one party has abused the processes of the court is concerned to prevent injustice, and that power is properly exercised where the conduct of the moving party is such that the abuse of process on its part may prevent or stultify the fair and just determination of a matter.

In Strickland (a pseudonym) v Director of Public Prosecutions (Cth), Gageler J explained that the concern which engages a court's power to order a stay of proceedings is the need to protect the integrity of its own processes. His Honour said:

'The power of a superior court to stay its own proceedings as an abuse of process is a power to protect the integrity of its own processes. The power is in that limited respect and to that limited extent a power to 'safeguard the administration of justice.'

1. As has been long recognised, the doctrine of abuse of process cannot be confined to closed categories, a principle reaffirmed in Lunt:[53]

In PNJ v The Queen French CJ, Gummow, Hayne, Crennan and Kiefel JJ said:

'It is not possible to describe exhaustively what will constitute an abuse of process. It may be accepted, however, that many cases of abuse of process will exhibit at least one of three characteristics:

(a) the invoking of a court's processes for an illegitimate or collateral purpose;

(b) the use of the court's procedures would be unjustifiably oppressive to a party; or

(c) the use of the court's procedures would bring the administration of justice into disrepute.'

1. As I have already observed, in the Points of Claim Mineralogy invokes each of the three 'typical' characteristics identified in this passage.[54]
2. Nevertheless, leaving aside the allegations in the Points of Claim concerning the Port proceedings, it is clear from the Points of Claim and Mineralogy's submissions as a whole that the real focus of its case is on the first characteristic: namely the invocation of the Court's processes for an illegitimate or collateral purpose (and in particular the Fulcrum Purposes). It is upon that issue, in my view, that the application properly turns.
3. That is, (and again, leaving aside the Port proceedings issue) unless there is an arguable case that the substantive proceedings are an abuse of process because they have been commenced for the Fulcrum Purposes, Mineralogy's reliance on the other characteristics referred to in the passage at [84] above (namely oppression and bringing the administration of justice into disrepute) could not independently sustain an allegation of abuse of process. Without the alleged collateral purpose, for example, the sheer size and complexity of the litigation could not arguably be said to be unjustifiably oppressive to Mineralogy. The size and complexity of the substantive proceedings are par for the course for these parties.
4. Turning then to the parties' respective submissions on this application.

1. The parties' submissions may be broadly summarised under three headings. The first two arise from the Points of Claim as originally filed and were focused on the alleged abuse based on the collateral Fulcrum Purposes. The third arises from the reliance in the amended Points of Claim on the effect of the Port proceedings.
2. It is convenient to deal with the parties' submissions in relation to each issue.

Issue 1: is it necessary to show that the CITIC parties do not intend to prosecute the substantive proceedings?

1. The first issue that arises is whether, in circumstances in which it is alleged that a party has commenced an action for a collateral purpose, it is necessary for the party alleging an abuse of process to allege (and prove) that the party that has commenced the action has no intention to bring the action to a successful conclusion.
2. The CITIC parties present this issue as, essentially, a pure question of law; namely, that in the absence of an allegation and proof that the CITIC parties commenced the substantive proceedings with no intention to bring them to a successful conclusion, an application for a stay on the grounds that they are an abuse of process must be refused. There being no such allegation in the present case, the CITIC parties submit, the stay application is doomed to failure.
3. Mineralogy denies there is such a principle of law.

1. In relation to this issue, the CITIC parties identify, as the starting point, the High Court's decision in Williams v Spautz.[55] They submit that Williams v Spautz is (and has been consistently applied as) authority for the principle that a proceeding cannot be an abuse if the moving party intends to prosecute those proceedings to a conclusion.
2. Williams v Spautz concerned criminal proceedings commenced by the respondent (Dr Spautz) that the trial judge found had been instituted and maintained for the predominant, improper purpose of exerting pressure on Dr Spautz's employer to reinstate him or to agree to a favourable settlement of his wrongful dismissal claim. The trial judge stayed the proceedings.
3. On appeal, the Court of Appeal concluded that the criminal proceedings, even if commenced for an improper purpose, should not be permanently stayed 'in the absence of some improper act in the prosecution of the process'.[56] The particular point upon which the appeal to the High Court turned was therefore relatively narrow. The High Court concluded that it was not necessary to show an 'improper act' as well as an 'improper purpose' and so allowed the appeal.[57]
4. The majority of the Court, nevertheless, dealt more generally with the correct approach to determining whether an abuse of process can be said to arise from an improper purpose. It is this aspect of the decision upon which the CITIC parties focused.
5. In Williams v Spautz, the plurality (Mason CJ, Dawson, Toohey and McHugh JJ) dealt with this issue, first, by reference to the judgment of Lord Bridge in Goldsmith v Sperrings Ltd.[58] Their Honours said:[59]

Bridge LJ identified one difficulty when he said:

'What if a litigant with a genuine cause of action, which he would wish to pursue in any event, can be shown also to have an ulterior purpose in view as a desired by product of the litigation? Can he on that ground be debarred from proceeding? I very much doubt it.' (emphasis added)

So would we. But his Lordship, by implication, evidently sees no difficulty with the case in which the plaintiff does not wish to pursue his or her cause of action to a conclusion because he or she intends to use the proceedings for a collateral and improper purpose.

In our view, the power must extend to the prevention of an abuse of process resulting in oppression, even if the moving party has a prima facie case or must be assumed to have a prima facie case. Take, for example, a situation in which the moving party commences criminal proceedings. He or she can establish a prima facie case against the defendant but has no intention of prosecuting the proceedings to a conclusion because he or she wishes to use them only as a means of extorting a pecuniary benefit from the defendant. It would be extraordinary if the court lacked power to prevent the abuse of process in these circumstances.

1. As is apparent, their Honours in this passage twice emphasised the moving party's 'wish' or 'intention' to bring the proceedings to a conclusion as a significant consideration.
2. The plurality returned to this issue in identifying what their Honours described as the 'reasonable bounds' of the concept of abuse of process. In doing so their Honours drew a distinction between ultimate purposes and immediate purposes. They said:[60]

To say that a purpose of a litigant in bringing proceedings which is not within the scope of the proceedings constitutes, without more, an abuse of process might unduly expand the concept. The purpose of a litigant may be to bring the proceedings to a successful conclusion so as to take advantage of an entitlement or benefit which the law gives the litigant in that event.

Thus, to take an example mentioned in argument, an alderman prosecutes another alderman who is a political opponent for failure to disclose a relevant pecuniary interest when voting to approve a contract, intending to secure the opponent's conviction so that he or she will then be disqualified from office as an alderman by reason of that conviction, pursuant to local government legislation regulating the holding of such offices. The ultimate purpose of bringing about disqualification is not within the scope of the criminal process instituted by the prosecutor. But the immediate purpose of the prosecutor is within that scope. And the existence of the ultimate purpose cannot constitute an abuse of process when that purpose is to bring about a result for which the law provides in the event that the proceedings terminate in the prosecutor's favour.

It is otherwise when the purpose of bringing the proceedings is not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they are not designed or some collateral advantage beyond what the law offers. So, in Dowling, Isaacs J. pointed out that 'if, for instance, it had been shown that the Society had simply threatened Dowling that unless he did what they had no right to demand from him, namely, give up certain names, they would proceed to sequestration, and they had proceeded accordingly, there would have been in law an abuse of the process'. However, because the Society wished to use the process for the very purpose for which it was designed, there was no abuse of process.

1. Justice Brennan, who was also in the majority in Williams v Spautz, was even more explicit as to the need for a party alleging an abuse to establish the absence of an intention to bring the proceedings to a successful conclusion. His Honour again did so by reference to the approach propounded by Lord Bridge in Goldsmith v Sperrings:[61]

I would formulate the test in this way: if there be a reasonable relationship between the result intended by the plaintiff and the scope of the remedy available in the proceeding, there is no abuse of process. If there be mixed purposes - some legitimate, some collateral - I would restate his Lordship's test that 'but for his ulterior purpose, (the plaintiff) would not have commenced proceedings at all'. So expressed, the test casts on the other party an onus of proving what the plaintiff would not have done if he had not formed the intention of obtaining a collateral advantage. That onus may be impossible to discharge. If that onus were discharged, the other party would establish that the plaintiff had not commenced or maintained the proceeding for any substantial legitimate purpose. The gravamen of the test, I apprehend, is that the plaintiff did not commence or maintain the proceeding for any substantial legitimate purpose. I would state the test in that way. Substantiality is a matter of degree, ascertained by reference to the intention attributed to the plaintiff in all the circumstances of the case. At the end of the day, the court must determine, by reference to the intention attributed to the plaintiff, not merely whether the collateral purpose of the proceeding outweighs any legitimate purpose but whether the plaintiff entertained any substantial intention that the proceeding should achieve a legitimate purpose.

1. The CITIC parties refer to a number of decisions following Williams v Spautz which they submit confirm the necessity for a party alleging an abuse of process to allege an absence of intention to bring the action to a successful conclusion.
2. I need only refer to two decisions in this Court.
3. In Australian Electrical Electronics Foundry & Engineering Union, WA Branch v Hamersley Iron Pty Ltd,[62] Malcom CJ (Kennedy and Owen JJ agreeing) said at 148 ‑ 149:

In the context of abuse of process, Parker J said:

'A court will only be satisfied that proceedings constitute an abuse of process in exceptional or extreme cases: Walton v Gardiner (1993) 177 CLR 378 at 392. ... If proceedings are brought for an improper purpose this may constitute an abuse of process, but only where the sole or dominant purpose of bringing them is not to prosecute them to a conclusion but to use them as a means of obtaining some collateral advantage beyond what the law offers; Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 522 and 529.'

It was not suggested by counsel for the appellants that the learned judge had not correctly stated the principle to be applied in this case. I would only add that, as Harper J said in Grimwade v State of Victoria (1997) 90 A Crim R 526 at 537:

'The onus of satisfying the court that there is an abuse of process lies upon the party alleging it. The onus is a heavy one. But that is not a matter of present concern. The question before me is whether or not the cause of action has been properly pleaded. This will not be so unless the statement of claim alleges material facts which, if proved, would together constitute each element of the tort. The extraneous purpose must be pleaded. Its impropriety must be made apparent. The fact that it was the predominant or the only predominant purpose must be alleged.'

1. The CITIC parties, of course emphasise the reference in Parker J's formulation of the principle to the 'sole or dominant purpose of bringing [proceedings being] not to prosecute them to a conclusion'.
2. Secondly, in Armstrong v McIntosh [No 4],[63] Le Miere J rejected a plea of abuse, again emphasising the need to find that the plaintiff had no intention of bringing the matter to trial. His Honour said, referring to the passage from Brennan J's judgment in Williams v Spautz at [101[64]] above:64

The defendant's case is that the predominant factor which led the plaintiff to bring this action is the plaintiff's desire and intention to attack and punish the defendant. Counsel for the defendant submitted that the evidence establishes that the plaintiff was determined to financially destroy the defendant and ruin his life. But the defendant did not establish, and indeed did not allege, that the plaintiff intended to achieve the defendant's destruction other than through the initiation and successful prosecution of the action. The defendant's defence must fail for the reasons stated by Brennan J in Williams v Spautz.

1. Thus, the CITIC parties submit that in the absence of any allegation that they do not intend to prosecute the substantive proceedings to a successful conclusion, the stay application should be dismissed as unarguable.

1. In its submissions in relation to this issue, Mineralogy denies that the authorities relied upon by the CITIC parties require that the moving party allege and prove a lack of intention to bring the proceeding to a successful conclusion at trial.
2. In that regard Mineralogy lays significant emphasis on the principle, referred to at [84] above, that the doctrine of abuse of process cannot be confined to closed categories and emphasises the broader evaluative process for determining whether there is an abuse of process. It refers in particular to the observations of the plurality in UB[65]AG v Tyne,65 made in the context of litigation raising issues that could, and should, have been litigated in earlier [66]oceedings:66

Whether conduct of this description rises to the level of an abuse of the processes of the court is a determination that requires consideration of all the circumstances. As Lord Bingham of Cornhill explained, that consideration requires the court to make:

'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. In this regard, Mineralogy submitted that its stay application was broader than that in Williams v Spautz so could not be confined to the particular category dealt with in that case. It described the broader issue raised by the stay application as[67]

whether a proceeding is an abuse of process if it forms but one of a number of proceedings commenced or made necessary by a strategy of the plaintiffs to vex and exert pressure on Mineralogy so that it agrees (or is forced to agree) to amend the contractual relationship between the parties - has not been definitively resolved by an appellate court in this country. Any principles derived from Williams and its like cases do not delimit the universe of principles applicable to the Stay Summons.

1. Thus, Mineralogy invoke what it describes as the larger 'overarching strategy' alleged in the Points of Claim, submitting that it is well open on the state of existing authority for the substantive proceedings to be an abuse of process even if the CITIC parties intend to prosecute it to a conclusion, where the proceeding nonetheless would not have been commenced in the absence of that overarching strategy.[68]
2. In this context, Mineralogy also emphasise the principle that an alleged improper purpose need not be the sole purpose, but only the predominant purpose of the substantive proceedings;[69] and that the improper purpose may well amount to an abuse if the parties' intention is not to prosecute the claim for the purpose of obtaining relief, but to wear the party down through successive litigation.[70]
3. Mineralogy submits that with the 'documents and circumstances presently known' to it giving rise to a sufficiently arguable case of abuse of process, it should therefore be afforded the opportunity to fully ventilate its stay application, including through appropriate use of procedural mechanisms.[71]
4. This leads conveniently to the second broad issue in the application whether there is a sufficiently arguable basis on the material available, to contend that the substantive proceedings have been brought as part of the Fulcrum Purposes.

Issue 2: is it arguable that the substantive proceedings have been improperly brought as part of the Fulcrum Purposes?

1. The CITIC parties contend, in the alternative, that the matters raised in the Points of Claim, and in particular the matters set out at [54] above, are incapable of giving rise to a finding that the substantive proceedings have been commenced for the Fulcr[72] Purposes.72

1. The CITIC parties addressed each of the matters identified by Mineralogy as matters from which the Fulcrum Purposes may be inferred.[73] In relation to each matter, the CITIC parties submitted that it did not provide any support for the existence of the Fulcrum Purposes. I will not set out those submissions, but rather deal with each of the matters when coming to my own conclusions.
2. There are, however, some broad submissions made by the CITIC parties that it is appropriate to refer to at this point.
3. First, the CITIC parties submitted, in relation to whether a purpose was illegitimate or improper, that it was not an improper or collateral purpose that a party, such as the CITIC parties, might wish to reach a settlement with Mineralogy, part of which may extend beyond the relief that they might obtain at trial. Again, the CITIC parties refer to Lord Bridge's judgment in Goldsmith v Sperrings as to what is meant by a 'collateral advantage':[74]

The phrase manifestly cannot embrace every advantage sought or obtained by a litigant which it is beyond the court's power to grant him. Actions are settled quite properly every day on terms which a court could not itself impose on an unwilling defendant. An apology in libel, an agreement to adhere to a contract of which the court could not order specific performance, an agreement after obstruction of an existing right of way to grant an alternative right of way over the defendant's land - these are a few obvious examples of such proper settlement. In my judgment, one can certainly go so far as to say that when a litigant sues to redress a grievance no object which he may seek to obtain can be condemned as a collateral advantage if it is reasonably related to the provision of some form of redress for that grievance.

1. So too, the CITIC parties submit that the Contract 'Normalisation' Objective pleaded in the Points of Claim is not an illegitimate or improper purpose or objective per se. That is, there is nothing improper about a party to a contract desiring, or seeking, to renegotiate the terms of that contract to its perceived advantage. This must surely be correct. Nor did Mineralogy suggest otherwise.[75] It is the improper use of legal proceedings for that purpose, and not for the purpose of a genuine claim for relief that is what, on Mineralogy's case, gives rise to the abuse of process.
2. Secondly, insofar as Mineralogy seeks to rely upon previous litigation in support of its contention as to the existence of the Fulcrum Purposes (see [56] above), the CITIC parties submitted that the litigation referred to by Mineralogy in the Points of Claim presents an incomplete picture of the litigious landscape over the past decade.
3. In that regard the CITIC parties provided a spreadsheet of 29 substantive actions and appeals commenced between the parties since 2012, which they colour‑coded to demonstrate 'wins' and 'losses'. That spreadsheet was said to demonstrate that the overwhelming majority of the litigation over that time has been commenced by Mineralogy and that the CITIC parties have, in the majority of cases, been the successful party. From this summary the CITIC parties appear to pose the rhetorical question: 'just who is vexing who with all this litigation?'
4. Thirdly, in relation to the substantive proceedings themselves, the CITIC parties point to the significant steps that have been undertaken to bring the matter to trial, since it was commenced in October 2018, including mediation, a successful strike out application of portions of the Defence and extensive discovery. The history of the substantive proceedings, as identified by the CITIC parties, is set out in the Schedule to these reasons.
5. These steps, and the CITIC parties' desire to bring the substantive proceedings to trial, the CITIC parties submit belie the existence of any abuse of process.

1. Again, Mineralogy addressed each of the matters identified by it[76] as matters from which it submitted the Fulcrum Purposes may arguably be inferred. I will again defer reference to those matters until I come to my own conclusions.
2. As to the genuineness of the CITIC parties in bringing the substantive proceedings, Mineralogy submitted that the material it relied upon supported, at least arguably, its position that the substantive proceedings were commenced without a genuine belief by the CITIC parties in their entitlement to relief. In addition to the general inferences it sought to draw as to the Fulcrum Purposes from the matters set out at [54] above, two additional submissions made by Mineralogy warrant particular mention.
3. First, Mineralogy submitted that there was a conspicuous absence of any affidavit evidence from the CITIC parties as to the genuineness of its belief in its claim.[77]
4. Secondly, as I have noted above, Mineralogy submitted that the nature of the claims made by the CITIC parties in the substantive proceedings demonstrated that they were not genuine. That submission was put with varying degrees of hyperbole. For example, in its written submissions Mineralogy submitted:[78]

As is demonstrated in these submissions and the evidence led by Mineralogy, these very proceedings are an abuse of process because they facially 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 plaintiffs 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. Obviously, relief like that would never be granted and the motivation of the plaintiffs is to vex and harass Mineralogy by long and expensive litigation with the threat of such extreme relief.

1. Mineralogy's submissions as to the 'obviousness' that the relief claimed by the CITIC parties would never be granted was based on opinions expressed by a geologist employed by Mineralogy, Mr Christopher Spielvogel, as to the practical impact that the approval of the 2017 MCPs and the other relief claimed by the CITIC parties would have on Mineralogy's other mining rights in the area covered by the State Agreement.[79]
2. In this regard, in the week prior to the hearing before me, Mineralogy filed an affidavit of Mr Spielvogel sworn 7 April 2021. The CITIC parties initially took objection to the affidavit on the basis that it contained contentious material that was ultimately a matter for trial.[80]
3. I received Mr Spielvogel's affidavit into evidence on the application, on the basis that it identified, at least in part, Mineralogy's contentions in relation to the substantive proceedings. The evidence was received on the express basis that the evidence was contentious and was simply, from Mineralogy's perspective, for the purpose of demonstrating that there was a triable issue.[81]
4. It is appropriate to set out some of the critical aspects of Mr Spielvogel's affidavit.
5. In that context, as observed above, among the changes proposed by the 2017 MCPs is an increase in infrastructure associated with the extraction operations on the Sino Iron leases, including tailings and waste capacity on associated tenements and an increase in the capacity of existing stockpiles and associated infrastructure at the Port (see [27] above).
6. A useful illustration of the changes proposed by the 2017 MCPs can be seen depicted in Appendix B, Plan 1 of the 2017 MCPs:[82]

1. On this plan, the boundaries of the tenements are depicted in yellow. The Sino Iron leases are the three rectangular shaped areas on the western side of the lower portion of the plan. The existing areas of Approved Proposals are depicted in green. As can be seen, those green areas include an area to the north east of the Sino Iron leases (being tailings storage facilities) and areas in the north at Cape Preston, where the existing Port facilities are situated.
2. The blue areas on the plan depict the additional areas the subject of the 2017 MCPs. As can be seen, those areas include additional areas to the north and south of the existing tailings storage facilities (being new tailings and waste capacity). They also include additional areas at the Port (most clearly to the east and the south of the existing (green) areas at the Port).
3. As part of the relief they claim, the CITIC parties seek Mineralogy's agreement to expand the Site Lease Area under the MRSLAs (see [32] and [35] above). As can be seen from Annexure 11 to the Statement of Claim, that expanded area essentially consists of the areas (in blue and green in the plan at [133] above) that would follow[83]rom the approval of the 2017 MCPs:83

1. It is the extent of the proposed expanded Site Lease Area, in particular, that forms the basis for various opinions expressed by Mr Spielvogel as to the impact that the relief claimed by the CITIC parties would have on Mineralogy. For example, Mr Spielvogel proffers the following opinions:[84]

In my opinion, converting some areas of share services into the CITIC Proposed Expanded [Site Lease Area] and the associated facilities under the MCPs will greatly diminish; if not eliminate the ability for any third party to access the port area by reason of the sole occupation and exclusive use component of the CITIC Proposed Expanded [Site Lease Area], with flow on effects detrimental for the mining leases to the North and to the South of mining leases M08/123 to M08/125.

1. Similarly, Mr Spielvogel says, in relation to facilities constructed near the port terminal:[85]

If the areas coloured in red [on Annexure 11 of the Statement of Claim] were to become Site Lease Area under the MRSLAs and for the CITIC Plaintiffs' exclusive occupation, the facilities of third parties ... could not be constructed.

There would be insufficient space available outside the CITIC Proposed Expanded [Site Lease Area] to enable the construction of those third party facilities in locations proximate to the port.

A reason for the inability to construct the facilities is that the area at the port of Cape Preston is very space constrained. There is scarce area available for utilisation for facilities and infrastructure.

1. Similar statements are made in relation to other effects of the proposed expanded Site Lease Area.[86]
2. From these matters, Mineralogy submits that the relief sought by the CITIC parties in the substantive proceedings 'would have the ultimate effect of obliterating Mineralogy's ability to exploit its remaining tenements and interfere with its rights and obligations to other parties'.[87]
3. From this, Mineralogy contends, as it is 'relief that cannot ... ever realistically be achievable, [that] there is a more than arguable case that it is relief that is sought for the purposes of seeking to vex and pressure Mineralogy'.[88]

Issue 3: do the Port proceedings arguably give rise to an abuse of process or issue estoppel?

1. The issue said to arise from the Port proceedings is closely related to the issues in Mr Spielvogel's affidavit.
2. Before referring to the parties' submissions in this regard, a brief summary of the Port proceedings is called for.

1. The primary issue in the Port proceedings was whether Mineralogy had validly terminated the Facilities Deeds. Mineralogy alleged that it had terminated the Facilities Deeds following the issue of termination notices for alleged breaches of the Deeds. Mineralogy was wholly unsuccessful in those claims, with the trial judge, Edelman J, describing the issue of the termination notices as 'astonishing' and many aspects of the notices 'farcical'.[89]
2. Indeed, in (yet another) irony in these proceedings, Edelman J concluded in the Port proceedings that the termination notices were issued by Mineralogy for the same improper purpose that it now seeks to attribute to the CITIC parties:[90]

Mineralogy's claim that it is entitled to terminate the Facilities Deeds for breaches of the Facilities Deeds is without any substance. The termination notices did not allege any genuine breach. They did not involve any serious or persistent breach. They did not provide for any reasonable time to rectify any breach. Although no obligation of good faith is implied into the Facilities Deeds, the termination notices were issued as a lever for future commercial negotiations and they were not issued in good faith.

1. Mineralogy was also unsuccessful in various forms of alternative relief claimed in the Port proceedings intended to reflect its alternative case that, on their proper construction, the Facilities Deeds 'gave control of the operation of the port to Mineralogy'.[91] Critically, Mineralogy relied upon cl 24(b) of the Facilities Deeds which provides:

The parties acknowledge that the Facilities, the Facilities operation and maintenance shall vest in Mineralogy.

1. Mineralogy contended that on its proper construction this clause meant that 'the parties acknowledge that ownership of all future Facilities will vest in Mineralogy and that Mineralogy has the future right to operate and to maintain all those Facilities'.[92]
2. Mineralogy was unsuccessful in these alternative claims also, including because Edelman J rejected its construction of cl 24(b) of the Facilities Deeds.[93] While rejecting Mineralogy's construction, however, his Honour did not fully embrace the CITIC parties' construction either, which was to the effect that 'the possession of all future Facilities will vest in Mineralogy as needed for the discharge of its obligations to operate and maintain Shared Facilities'.[94] His Honour preferred a third construction of cl 24(b).
3. On appeal the Full Court also rejected Mineralogy's construction. While it was not necessary for it to decide, the Full Court was also of the opinion that the CITIC parties' construction was to be preferred to that reached by Edelman J.[95]
4. In addition to rejecting Mineralogy's construction of the Facilities Deeds, Edelman J also found that Mineralogy would in any event have been precluded from asserting any right to control and operation of the Port by reason of an estoppel by convention.[96] In that context, his Honour accepted the evidence of the CITIC parties' project director responsible for designing the facilities at the Port (Mr Malcom Northey) to the effect that the design of the port facilities would have been different if the assumption that they would be operated by the CITIC parties was changed.[97]
5. It is in this context that Mineralogy contended that the Port proceedings had finally determined issues that the CITIC parties sought to undermine in the substantive proceedings.
6. It is to that submission I now turn.

1. Mineralogy's submission as to the effect of the Port proceedings focused particularly on the following passages in Edelman J's reasons:[98]
   1. I accept Mineralogy's submission that the area of General Purpose Lease 08/52 ... was intended to be developed in a manner which accommodated the possibility that third parties might use facilities in the area.
   2. One way that development could occur in this manner was for the development by the CITIC parties of facilities in a way which left space for third parties also to build facilities. A second way was for the CITIC facilities themselves to accommodate third party use of the CITIC facilities, either as designed or after expansion. As I explain below, the parties envisaged constraints upon this second option including that third party use generally would not be imposed unless the Facilities met conditions by which they could become Shared Facilities under the Facilities Deeds.
2. It is, in particular, the first sentence of [293] upon which Mineralogy laid particular emphasis. It is that sentence that Mineralogy said supported the proposition in [72A](b)(i) of the Points of Claim that the Port proceedings found that 'there was an unconstrained entitlement to third party use of the facilities constructed by the plaintiffs at the Port by the plaintiffs leaving space for further facilities to be developed separately in the future'.[99]
3. As to the second sentence of [293], namely the use that third parties might make of the CITIC parties' facilities (particularly if they became Shared Facilities), [72A](b)(i) of the Points of Claim also refer to the following passages in Edelman J's reasons:[100]
   1. My conclusion that the CITIC parties' facilities are capable in principle of being shared, as co‑ordinated through CPMM, is a conclusion expressed at an extremely high, and abstract, level of generality. None of the evidence descended below this level of generality for the obvious reason that there was no evidence of a third party operation in existence that required a particular use of some or all facilities for a particular amount of production.
   2. Whether a particular facility could practically be shared would depend on many factors including (i) the capacity of that particular facility including in light of its integration within the Project, (ii) the current utilisation of that facility, (iii) the scheme and design for the use of that facility, (iv) the extent to which that facility was proposed to be used, and (v) the period over which that facility was proposed to be used. These matters, and others, would also need to be considered in light of the complete integration of the Project, as I explain in the next section in these reasons.
4. The other passages in Edelman J's reasons relied upon by Mineralogy in this context, were not findings, as such, but references to the evidence of Mr Northey as to the assumptions underlying the design of the Port facilities.
5. Based on these passages, and the findings of Edelman J as to the construction of the Facilities Deeds in relation to 'Shared Facilities' (Shared Facilities), Mineralogy submits that the substantive proceedings are an abuse, or give rise to estoppels, because the extent of the Site Lease Area sought in the substantive proceedings would prevent the capacity of third parties to construct facilities at the Port or for facilities to become Shared Facilities.

1. The CITIC parties deny that the Port proceedings arguably give rise to an abuse of process or estoppel. In particular they contend that the Port proceedings did not finally determine any matter in a way that is inconsistent with any of the relief that it seeks in the substantive proceedings.
2. First, the CITIC parties submit that the Port proceedings were expressly not concerned with Shared Facilities under the Facilities Deeds. It was common ground in the Port proceedings that they were not concerned with Shared Facilities; they were concerned with Mineralogy's claim to ownership of all facilities under the Facilities Deeds. That is why the rejection of its construction of cl 24(b) of the Facilities Deeds was critical to the result.
3. The scope of the issues in the Port proceedings, the CITIC parties submitted, was clear from the following passages of Edelman J's reasons:[101]

Mineralogy said that it was the owner and operator of the port terminal facilities even though, under the Facilities Deeds, those facilities were not 'Shared Facilities'.

It is important to emphasise that this trial was run on the basis that the Facilities are not Shared Facilities. The reason why this point is important is because again, and again, in submissions Mineralogy asserted that if the Facilities Deeds had been varied in relation to Mineralogy's asserted 'right' to own, operate, and maintain the Facilities then there would be no remaining role for the Facilities Deeds. This is incorrect. The predominant focus of the Facilities Deeds was the ownership, use, operation, and funding of Shared Facilities. This trial was not concerned with the extent to which any of the later agreements had varied any of the many clauses in the Facilities Deeds concerning Shared Facilities.

There can be no doubt that this trial was not about Shared Facilities. ... The trial therefore proceeded on the basis that the port terminal facilities were not Shared Facilities, under either the Sino Iron Facilities Deed or the Korean Steel Facilities Deed. As I explain, they could only be (or be in the process of becoming) Company Facilities.

It also does not matter for the purposes of these reasons whether the facilities have become Company Facilities or whether they only become Company Facilities upon completion, or commissioning, or operation at nameplate capacity. Neither party made submissions on the point at which the construction of facilities would become Company Facilities. For convenience, I will treat the port terminal facilities in these reasons as Company Facilities.

1. It is for these reasons, and the absence of any actual third party operations, that the CITIC parties submitted that Edelman J's findings in relation to the capacity for other persons to potentially use the facilities at the Port were expressed at an 'extremely high, and abstract, level of generality'.[102] The issue as to the extent of third party rights, the CITIC parties contend, simply did not arise for consideration by his Honour.[103]
2. In particular, the CITIC parties submitted that the Port proceedings simply did not hold, as Mineralogy alleged, that 'there was an unconstrained entitlement to third party use of the facilities constructed by the plaintiffs at the Port by the plaintiffs leaving space for further facilities to be developed separately in the future'.[104] To the contrary, the CITIC parties submitted that the Port proceedings identified a wide variety of practical and legal constraints on third party use of facilities at the Port.[105]
3. As to Mineralogy's factual allegations in relation to the effect of the proposed relief in the substantive proceedings, the CITIC parties reiterated their position that they took issue with Mr Spielvogel's evidence and would demonstrate at trial that it was erroneous.[106]
4. As illustrative of its own position, the CITIC parties referred to aspects of the 2017 MCPs that recognise the potential interests of third parties. For example, the 2017 MCPs record of stakeholder consultations includes the following:[107]

CPM, as manager of the Project on behalf of Sino Iron and Korean Steel, has conducted a comprehensive consultation program with relevant stakeholders in relation to this Proposal.

...

Mineralogy raised a concern with respect to the interaction between this Proposal and the proposed Balmoral South Iron Ore Project (BSIOP), particularly in relation to the proposed location of the Port stockyard layout at Cape Preston. To address Mineralogy's concerns, Sino Iron and Korean Steel have modified the proposed configuration of stockyard infrastructure for which approval is sought in this Proposal (refer Appendix D).

1. Appendix D to the 2017 MCPs sets out the Revised Port Stockyard Layout. It includes reference to third party access in the following terms:[108]

Third Party Access

The proposed stockyard layout and supporting conveyors and roads will continue to provide third party access to an infrastructure corridor located on the eastern side of the existing stockyard facilities (Refer attached plan).

1. These passages in the 2017 MCPs, and the attached plan, the CITIC parties submit, illustrate the consideration given to third party access as part of the formulation of those proposals.

1. As will be apparent, while they are distinct, each of the three issues I have identified above are related. There is, for example, a substantial overlap between the first issue (whether it is necessary to allege that the CITIC parties commenced the substantive proceedings with no intention to bring them to a successful conclusion); and the second issue (whether there is an arguable basis for the existence of the Fulcrum Purposes). In relation to both of these issues, an important consideration is whether the substantive proceedings have been brought for the genuine purpose of obtaining the relief claimed.
2. For this reason, I will deal with the issue of genuineness as part of the first issue. It is, of course, relevant to the second issue also.

1. Turning to what I have described as Issue 1: in order to establish that the substantive proceedings are an abuse of process, is it necessary for Mineralogy to allege that the CITIC parties commenced the substantive proceedings with no intention to bring them to a conclusion?
2. While I agree with the CITIC parties that the answer to that question is, generally, 'No', it is not possible to be categorical about the issue, as if a plaintiff's stated intention to take a proceeding to trial would always be a complete answer to an allegation of an abuse of process.
3. Certainly, the authorities relied upon by the CITIC parties support the general principle that, if the moving party intends to bring the proceedings to a conclusion (notwithstanding they might obtain some collateral advantage by doing so), the proceedings cannot amount to an abuse of process.[109] Nevertheless, as a matter of principle, the doctrine of abuse of process cannot be confined to closed categories and it is possible to envisage circumstances in which a proceeding could amount to an abuse, notwithstanding that the moving party may well intend to prosecute the proceeding to the bitter end.
4. A key phrase, in this context, is 'successful conclusion'. It is possible to imagine circumstances, for example, where a party has no belief in the genuineness of its claim and is prepared to commence litigation and prosecute that litigation to an unsuccessful conclusion simply because it wishes to vex and pressure the other party. In those circumstances, in the absence of any belief on the part of the moving party that it has a genuine claim, the proceedings might well amount to an abuse of process, notwithstanding that the moving party intends to prosecute the proceedings, for improper purposes, to a conclusion.
5. Such a case would itself be an exceptional case in what is already an exceptional jurisdiction. As the plurality said in Williams v Spautz:[110]

It is, of course, well established that the onus of satisfying the court that there is an abuse of process lies upon the party alleging it. The onus is 'a heavy one', to use the words of Scarman LJ in Goldsmith v Sperrings Ltd ... and the power to grant a permanent stay is one to be exercised only in the most exceptional circumstances.

1. To conclude that a party has no belief in the genuineness of its claim but is prepared to commence litigation and prosecute that litigation to an unsuccessful conclusion simply because it wishes to vex and pressure the other party would be even more exceptional.
2. I would therefore pose the relevant questions in relation to Issue 1 in the present case as: is there any reasonably arguable basis to allege that the CITIC parties do not intend to prosecute the substantive proceedings to a successful conclusion? Or, alternatively: is there any reasonably arguable basis to allege that the CITIC parties do not genuinely bring the substantive proceedings for the purpose of vindicating their legal rights?
3. The answer to these questions, in my view, is clearly 'No'.
4. First, there is no basis to contend that the CITIC parties do not intend to prosecute the substantive proceedings to a conclusion. The history of the substantive proceedings (set out in the Schedule to these reasons) compels the conclusion that the CITIC parties are desirous of bringing the substantive proceedings to trial and conclusion.
5. Indeed, Mineralogy did not contend to the contrary. Rather, Mineralogy contended that the claim made in the substantive proceedings were not brought genuinely; that is, with no genuine belief in the entitlement to the relief claimed.[111] That submission was, of course, tied up with Mineralogy's submissions that the relief sought in the proceedings could not 'ever realistically be achievable'[112] and that the relief like that claimed by the CITIC parties 'obviously' would never be granted.[113]
6. This submission, in my view, must be rejected.
7. Leaving aside whether there is a basis for the improper purpose alleged by Mineralogy (which I will address in the context of Issue 2), in my view there is otherwise no basis upon which it could arguably be contended that the CITIC parties have brought, and maintained, the substantive proceedings with no genuine belief in an entitlement to the relief that they seek.
8. First, as I said at the outset, while some aspects of the pleaded claim may be regarded as novel or ambitious, there has never been any application by Mineralogy to strike out any part of the Statement of Claim on the basis that it fails to disclose a reasonable cause of action.
9. On the face of it, the CITIC parties' claim arises from a genuine grievance on their part: in essence, the CITIC parties seek to obtain the approval of the Minister under the State Agreement to continue (and expand) their operations as part of the Sino Iron Project; and a significant obstacle to their ability to do so is Mineralogy's failure to submit the 2017 MCPs to the Minister. It could not seriously be suggested that the CITIC parties do not genuinely wish to have the 2017 MCPs approved or that the dispute with Mineralogy is somehow confected.
10. Moreover, it is the submission of the 2017 MCPs to the Minister that, in my view, must be regarded as the principal relief sought in the substantive proceedings. Without the approval of the 2017 MCPs under the State Agreement, the other coercive relief sought by the CITIC parties is, to a large extent, academic.
11. Much is made, for example, by Mineralogy, of the CITIC parties' proposed expansion of the Site Lease Area under the MRSLAs. Relief in that regard, however, could only ever be regarded as dependent upon, and ancillary to, the submission and approval of the 2017 MCPs. Any increase in the Site Lease Area, without the approval to carry out the proposed activities in the 2017 MCPs, would be meaningless.
12. Indeed, the ancillary nature of that relief is reflected in the fact that the prayer for relief in relation to the Site Lease Area seeks relief in the alternative that Mineralogy grant 'such further tenure as the Court determines is reasonably required by Sino Iron and Korean Steel for the purposes of the 2017 MCPs'.[114] That alternative relief, in my view, clearly reflects a recognition of the primacy of the 2017 MCPs for the CITIC parties' purposes. In that context, in order for it to be said of a party that it is bringing a genuine claim, it is not necessary that it have the same degree of confidence that it will obtain, in full, each and every form of relief that it seeks.
13. Similarly, when it comes to the issue of whether the CITIC parties have genuinely brought the substantive proceedings for the purpose of vindicating their legal rights, it is not necessary for me to determine whether they believe that the prospects of success are strong. The stakes for the CITIC parties (and indeed for Mineralogy) are enormous. In those circumstances, any reasonable prospect of success may be sufficient to motivate a party to advance a novel, but genuine, claim. The question, rather, is whether, to use Brennan J's formulation in Williams v Spautz: do the CITIC parties entertain any substantial intention that the proceeding should achieve a legitimate purpose?[115]
14. Ultimately (and again leaving aside the improper purposes to be addressed in the context of Issue 2), Mineralogy point to only two matters to suggest otherwise.
15. First, it submitted that there was the absence of any affidavit evidence from the CITIC parties as to the genuineness of its belief in its claim.[116]
16. The absence of any such affidavit does not assist Mineralogy. It is Mineralogy that alleges that the substantive proceedings are not a genuine claim and have been brought to vex and pressure it. Mineralogy has the onus of establishing that allegation, which the authorities describe as 'a heavy one'.[117] If the evidence that it points to does not arguably demonstrate the lack of a genuine claim, it hardly matters that the CITIC parties did not go into evidence themselves.
17. In any event, it is notable in the present case that the Statement of Claim in the substantive proceedings, which were commenced in the Federal Court, was certified by the CITIC parties' lawyer, who certified that the factual and legal material available to him provided a proper basis for each allegation in the pleading.
18. This, in my respectful view, is not without significance. The substantive proceedings have clearly been brought, and maintained, based on legal advice and involve considerable professional input. It would, at the very least, be difficult to see how a strategy to deliberately deploy such large scale litigation, with no belief as to the genuineness of the claims being agitated, could be implemented without the concurrence of the lawyers conducting that litigation. A court should be very slow to draw an inference that officers of the court have so conducted themselves (and continue to do so).
19. The second matter raised by Mineralogy from which it says it may arguably be inferred that the substantive proceedings are not a genuine claim, are the matters discussed at [127] to [141] above, arising from Mr Spielvogel's evidence. In that regard, essentially, Mineralogy works backwards from what it submits would be the effect of the relief sought in the substantive proceedings, namely, to 'sterilise' or 'obliterate' Mineralogy's ability to exploit its other tenements. This result, Mineralogy submits, could 'never realistically be achievable'. Thus, so the submission continues, no party could genuinely believe that they could ever obtain such relief. Therefore, finally, the CITIC parties must have no genuine belief in the substantive proceedings.
20. These contentions must be rejected at a number of levels.
21. First, as was made clear at the hearing before me, the matters raised in Mr Spielvogel's affidavit are matters of significant disagreement between the parties. As noted above, that evidence was adduced for the purpose of demonstrating that there was a triable issue.[118]
22. In that regard there is a significant difference between:

(a) whether the material demonstrates that Mineralogy has a triable basis to contend, based on what it submits would be the effect of the relief sought in the substantive proceedings, that the CITIC parties should be denied that relief at the trial of the substantive proceedings; and

(b) whether the material demonstrates that Mineralogy has a triable basis to contend that the CITIC parties have no genuine belief in their entitlement to the relief that they claim.

1. I will assume, for the purposes of the application before me, that the issues raised in Mr Spielvogel's affidavit provide an arguable basis for Mineralogy to contend, at trial, that the CITIC parties are not entitled to the relief they seek. The CITIC parties accepted, before me, that Mineralogy's Defence in the substantive proceedings raised those issues, where it pleads to the allegations that it has failed to submit the 2017 MCPs to the Minister and, in particular:[119]

eA. ... that other projects have been allocated areas for future development, including those areas sought to be granted to Sino Iron and Korean Steel; ...

eB. ... that 'assistance' under the project agreements does not entail granting further tenure, the first defendant subordinating or abandoning its rights under project agreements or the first defendant prejudicing other projects;

1. It is quite another thing to infer, from the fact that one party has a triable defence on the merits, that the initiating party therefore has no genuine belief in its entitlement to the relief it claims. To draw such an inference would require evidence going to the merits of the defence that is so strong as to lead to the inference that the claim is frivolous.
2. Apart from the fact that there has been no application alleging that the substantive proceedings are frivolous or disclose no reasonable cause of action, the issues raised in Mr Spielvogel's affidavit go nowhere near demonstrating that to be the case.
3. Indeed, on the face of that material there is reason to be cautious about uncritically accepting the force of Mr Spielvogel's opinions. In particular, as summarised above, his opinions are largely based upon the premise that the expansion of the Site Lease Area under the MRSLAs will effectively 'lock up' the land and prevent other operations in the area. For example, Mr Spielvogel says that the expanded Site Lease Area and the associated facilities 'will greatly diminish; if not eliminate the ability for any third party to access the port area by reason of the sole occupation and exclusive use component of the CITIC Proposed Expanded [Site Lease Area].[120]
4. The CITIC parties, of course, contest that conclusion as a matter of fact; that is, they submit that the 2017 MCPs, on their face, contemplate provision for third party access at the Port.
5. In addition, even the most cursory examination of the MRSLAs and the Facilities Deeds, reveals a significant unstated legal assumption in Mr Spielvogel's opinions; namely, that the expansion of the Site Lease Area would affect third parties because of the 'sole occupation and exclusive use' of the Site Lease Area by the CITIC parties. The unstated legal assumption is that the CITIC parties' occupation and use would have that effect on third parties.
6. As set out above, while it is correct that the MRSLAs do, in terms, confirm an entitlement to 'exclusive occupation' of the Site Lease Area,[121] that 'exclusive occupation' must be understood as one that is qualified (and perhaps very qualified).[122]
7. For example, the 'exclusive occupation' is, immediately and expressly, qualified in cl 4.5(b) of the MRSLAs so as to permit 'common carrier pipelines, roads and similar such facilities to deliver and transit over such Site Lease Area in accordance with approved Project Proposals under the State Agreement'.
8. In addition, the 'exclusive occupation' is 'subject to this Agreement', which includes the lease being granted subject to the reservations, terms, conditions and restrictions contained in, inter alia, the State Agreement and the Facilities Deeds. As demonstrated by the decision of Edelman J in the Port proceedings, the Facilities Deeds alone make detailed provision for facilities at the Port to become Shared Facilities able to be used by more than one user.
9. In light of these provisions, it is far from obvious that the effect of the designation of particular areas as part of the Site Lease Area under the MRSLAs would, as a matter of law, operate to diminish or eliminate third party access to the Port.
10. In addition, as I have also discussed above, even assuming that the extent of the Site Lease Area sought by way of relief in the substantive proceedings might be something of an ambit claim, that relief could only ever be regarded as dependent upon, and ancillary to, the submission and approval of the 2017 MCPs.[123] In light of the alternative relief sought in the substantive proceedings, one of the many possible outcomes of the proceedings might be success by the CITIC parties in their claim to require Mineralogy to submit the 2017 MCPs to the Minister, without the entirety of the ancillary relief that is sought by the CITIC parties. Even if the extent of the Site Lease Area sought by way of relief in the substantive proceedings is overreach, it does not, and could not, support an inference that the CITIC parties have no genuine belief in the substantive proceedings as a whole.
11. For these reasons, in my view, there is no arguable basis to contend that the CITIC parties have brought the substantive proceedings with no genuine belief in the claims or that they do not intend to prosecute the substantive proceedings to a successful conclusion. On the view I take of the authorities, that conclusion is sufficient to conclude that there is no prospect that Mineralogy could succeed in having the substantive proceedings permanently stayed as an abuse of process. As I have indicated, I will deal with the Port proceedings separately.
12. Nevertheless, it is appropriate, in my view, that I address the second issue I have identified, namely whether (leaving aside the genuineness of the claim) there is an arguable basis to contend that the substantive proceedings have been brought for the Fulcrum Purposes.
13. That is for two reasons.
14. First, as I noted at [53] above, there are two distinct components to the Fulcrum Purposes, as defined. I have, at least in relation to the substantive proceedings, dealt with the second component (namely the contention that the substantive proceedings have been commenced, or conducted, not for the purposes of vindicating any bona fide legal position). Nevertheless, whether there is an arguable case that there is a broader strategy to use litigation for collateral purposes (the first component) might be thought to bear upon my conclusion as to the genuineness of the substantive proceedings. That is certainly how Mineralogy put its case and, in fairness to Mineralogy, I should therefore address it.
15. Secondly, as I have also said, the allegation that the CITIC parties developed a strategy in the form of the Fulcrum Purposes is an allegation of the utmost seriousness. As it is defined and described, it is difficult to avoid the conclusion that it amounts to an allegation of a conspiracy involving not only the management of the CITIC parties but also their lawyers. As with my observation at [191] above, it is difficult to see how a decade long strategy to misuse court proceedings and legal processes could be implemented in the absence of such a conspiracy.
16. Given the seriousness of the allegation, it is therefore appropriate that I address whether the matters identified by Mineralogy even arguably support that allegation.
17. It is to that issue that I turn.

1. As I have observed above, [35](e) of the Points of Claim are admirably clear in identifying the basis upon which Mineralogy alleges that the Fulcrum Purposes may be found or inferred. Mineralogy points to 10 separate matters.
2. I will address each of those matters in turn, but make the following preliminary observations.
3. First, while I have addressed each of the matters identified by Mineralogy separately, I recognise that an assessment as to whether they arguably support an inference as to the Fulcrum Purposes necessarily requires that I have regard to the combined force of all of the matters together. In addressing each matter, therefore, I am conscious of the need to evaluate all of the circumstances. By addressing them separately, I should not be understood to suggest (or to have done) otherwise.
4. Secondly, there are a number of matters proffered in support of an inference as to the Fulcrum Purposes (see [56] above) that consist of the conduct of other proceedings. There is obviously a limit, itself dictated by practical reality, to which previous (and concluded) proceedings can be interrogated with a view to discerning the CITIC parties' 'purposes' in conducting those proceedings. Nothing could be more likely to grind the wheels of justice to a halt than to pick over every aspect of past litigation in search of hidden and undisclosed motives. In relation to the matters of previous litigation it is necessary to take a broader approach as to whether the litigation as a whole reveals the impugned improper purpose. In taking such an approach, of course, the view of the particular judicial officer that heard each proceeding (if expressed at the time) may be of significance. A trial judge's assessment of the parties' bona fides at the time of the litigation is, prima facie, likely to be far better informed than ex post facto assessments made from a distance.
5. With these preliminary observations, I turn to each of the matters identified by Mineralogy as matters from which the Fulcrum Purposes can be inferred.

1. 2010 Fulcrum Budget - Points of Claim [35](e)(i)

1. The first matter is a two‑page spreadsheet, said to emanate from the CITIC parties, of budgeted costs and outlays for the period July 2010 to December 2011 (2010 Budget).[124]
2. The 2010 Budget includes items with respect to the Site Remediation Fund (from June 2011), Royalty Component A (from December 2011) and Royalty Component B (from December 2011). These references, Mineralogy submits, are 'revelatory of a belief that financial obligations imposed on Sino Iron and Korean Steel were payable', which financial obligations the CITIC parties later disputed.[125] This provides support, Mineralogy submits, for the inference that the disputation was not for the purpose of vindicating any legal rights.
3. To draw such an inference from the mere existence of a budget is an extremely long bow, particularly in relation to sums that were not at the time of the budget payable. To draw the further inference that the CITIC parties had thereby embarked on the Fulcrum Purposes to use proceedings for the Contract 'Normalisation' Objective, in my view, stretches beyond credulity.
4. It is not possible to draw from a budget entry in relation to an amount that was later disputed, any inference of an elaborate strategy as to why that amount was disputed. There may be a myriad of reasons why an amount might be disputed (some of which may even be improper, like delay) without having anything to do with such a strategy. Some reasons for a later dispute may of course be perfectly legitimate, such as new legal advice.
5. Ironically, one of the entries in the 2010 Budget relied upon by Mineralogy is $20,000,000 budgeted to be paid with respect to the Site Remediation Fund (at June 2011). As it turns out, there was no such liability as at June 2011, nor indeed at any material time thereafter. In February this year, in the SRF Decision, Martin J determined that all of Mineralogy's demands made seeking payments into the Site Remediation Fund under the MRSLAs were ineffective and failed.[126] If the CITIC parties had been advised, after the creation of the 2010 Budget, that they had no present liability to pay $20,000,000 to the Site Remediation Fund, as it turns out, that advice would have been correct.
6. But whether a change of position following the 2010 Budget was correct or not, it does not support an inference as to the Fulcrum Purposes.

2. CPMM Department Plan and Budget - Points of Claim [35](e)(ii)

1. The next matter is a CPMM Department Plan and Budget from 2013 (2013 Plan).[127] It contains an express reference to 'Project Fulcrum' and says:[128]

One of the main areas being managed under Special Projects is the Mineralogy relationship. Due to the poor contracts that were entered in 2006 and 2008 and on the Sino Iron and Korean Steel Projects, there is a requirement to normalise the contracts as far as possible towards industry standards.

1. Certainly, this evidence points towards the existence of the Contract 'Normalisation' Objective pleaded in the Points of Claim. The existence of a desire by the CITIC parties to renegotiate or 'normalise' their contractual relationship with Mineralogy, however, is not in dispute. More importantly, as I said at [119] above, there is nothing illegitimate or improper about such an objective.
2. In this regard, I record my complete agreement with Martin J's observation in the SRF Decision that[129]

I do not infer anything sinister around the fact of a contracting party's desire to renegotiate over, or to revise or to amend the terms of an existing arrangement.

1. Mineralogy, in its submissions, however endeavoured to conflate this 'normalisation' objective with other references in the 2013 Plan with disputes in relation to existing contractual arrangements. There is, in my view, no proper or arguable basis for doing so. On the contrary, such references to disputes as there are in the document suggest otherwise.
2. Again, the references to the Site Remediation Fund in the 2013 Plan are unremarkable and describe a genuine dispute.[130] In relation to the royalties under the MRSLAs, the 2013 Plan noted, 'that there is a dispute related to royalties that is currently proceeding between the parties'.[131] And so there was, which dispute was resolved by this Court some years later. The fact of the dispute cannot arguably support an inference as to the Fulcrum Purposes.

3. Email from Ms Dillon - Points of Claim [35](e)(iii)

1. It is apparent from the email from Ms Dillon to Dr Hua and Mr Walkland dated 16 October 2012,[132] that it is a communication explaining the reason why the entries in the 2013 Plan, in relation to both the Site Remediation Fund and the royalties, were moved 'to 2014' (i.e. the following year's budget). The reasons given in the email are the reasons identified in the 2013 Plan; they add nothing to the terms of the 2013 Plan and are unremarkable.

4. SRF proceedings - Points of Claim [35](e)(iv)

1. Mineralogy's reliance on the SRF proceedings is puzzling.
2. It contends that the Fulcrum Purposes can be inferred from the fact that the CITIC parties have not contributed to the Site Remediation Fund and that they defended proceedings brought for them to pay into it. Those proceedings were the SRF proceedings. The presence of that allegation, in the original Points of Claim, might be explained by the fact that the original Points of Claim were filed after Martin J reserved his decision in the SRF proceedings but before his Honour delivered the SRF Decision.
3. As I have just noted, at [223] above, however, Martin J determined in the SRF Decision that all of Mineralogy's demands seeking payments into the Site Remediation Fund under the MRSLAs were ineffective and failed. The CITIC parties were therefore successful in resisting the demands (to date) for payment into the Site Remediation Fund. For the Court to conclude that the CITIC parties had no genuine belief in a defence of proceedings that was actually successful would be, to say the least, surprising. In my view, there is no basis to conclude that the CITIC parties' defence of the SRF proceedings provide any evidence of the Fulcrum Purposes.
4. Indeed it was a surprising feature of the amended Points of Claim that they made no reference to the fact that Martin J dismissed Mineralogy's claim in the SRF Decision, but do refer to the dismissal of the CITIC parties' counterclaim. That counterclaim sought to remove Mineralogy as trustee of the Site Remediation Fund. His Honour concluded that there was no such trust and that, in any event, the parties had 'chosen each other for better or worse'.[133] While there may be room for a healthy debate as to whether the parties' commercial relationship has been 'for better or worse', in my view the CITIC parties' counterclaim, while unsuccessful, does not, and could not, reveal any bad faith.

5. Royalty Component A and Royalty Component B proceedings - Points of Claim [35](e)(v)

1. Mineralogy also relied upon the CITIC parties' defence of the Royalty Component A and Royalty Component B proceedings referred to at [17] above. That Mineralogy relies upon these proceedings is perhaps not surprising, given that they are the only proceedings commenced by Mineralogy in the long list of litigation against the CITIC parties in which Mineralogy was unambiguously successful.
2. The Royalty Component A proceedings, decided by Edelman J in the Royalty Component A Decision, do not reveal any arguable basis for the Fulcrum Purposes. Those proceedings concerned the interpretation of a single word in the MRSLAs (the word 'taken' in cl 8.1) and the scope of the issues at the hearing before Edelman J were narrow.[134] His Honour found that the word in the MRSLAs ('taken') was ambiguous. While Edelman J concluded that the construction contended for by Mineralogy was 'the better construction', even that construction was clarified by his Honour.[135]
3. There is nothing about those 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.[136] In addition, his Honour observed:[137]

I received meticulous submissions from all counsel which examined closely the facts and surrounding circumstances of the contracts. Those submissions, and the co‑operation of the parties in preparation of evidence, confined the issues in dispute.

1. No adverse inference in relation to the purpose of either party is open from the dispute in the Royalty Component A proceedings.
2. 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).
3. 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). The disputed phrase appeared in the definition of 'PP' and 'CP', two of the integers of the Royalty Component B formula. When those words were included in the MRSLAs there was, in existence, a pricing system in the iron ore market known as the 'benchmark' system. Around 2010, however, the benchmark pricing system ceased to be used in the iron ore market.
4. 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.
5. 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:[138]

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.

1. 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.[139]
2. 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.
3. 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:[140]

[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.

1. 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.
2. 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.
3. 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.
4. Rather, the Royalty Component B proceedings as a whole, illustrate the correctness of Edelman J's observation in Mineralogy (No 6) that:[141]

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.

1. 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.
2. 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.[142]
3. The claims by Mineralogy that the MRSLAs had been terminated themselves gave rise to significant interlocutory disputes in the Royalty Component B proceedings. In that regard, Martin J remarked in 2016 that there was some force in the CITIC parties' contention that[143]

any interlocutory relief which they have been successful in obtaining to date has essentially been fully justified on its merits and has been directly responsive to what has been ongoing unacceptable, unsupportable and provocative conduct directed at them by Mineralogy.

1. Indeed, it was (in effect) on condition that Mineralogy abandon its claim that the MRSLAs had been lawfully terminated in 2014 that Martin J was prepared to grant an interlocutory injunction requiring Sino Iron and Korean Steel to pay money into court pending trial.[144] Once that had been done (i.e. the termination case withdrawn), the Royalty Component B proceedings were swiftly brought to trial and judgment.
2. While the interlocutory injunction was later set aside by the Court of Appeal,[145] the practical effect of Martin J's insistence that Mineralogy withdraw its inconsistent claims was that its claim was ultimately successful. Indeed, there is good reason to suggest that, when the definitive history of the relationship between Mineralogy and the CITIC parties is written, it will be recognised that it was only because of Martin J's insistence that Mineralogy properly confine its case that the Royalty Component B proceedings were ever brought to a conclusion.
3. 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.
4. The CITIC parties' defence of the Royalty Component A and Royalty Component B proceedings do not arguably support the Fulcrum Purposes.

6. Telephone call on 13 February 2013 - Points of Claim [35](e)(vi)

1. The sixth matter relied upon by Mineralogy consists of statements said to have been made by the CITIC parties' solicitor, Mr Gerard Woods, to Mineralogy's then solicitor, Mr Liam Prescott on 13 February 2013. Evidence of the conversation was adduced before me in the form of an email from Mr Prescott recounting the conversation to his clients (2013 email).[146] The email specifically records that the conversation was 'without prejudice' (and even refers to mediations between the parties).
2. Be that as it may, on its face the 2013 email appears to be Mr Prescott's record of a long conversation with Mr Woods, particularly in relation to the dispute over Royalty Component B. The email is a combination of reportage (of Mr Woods' statements) and exegesis by Mr Prescott of those statements.
3. The particular entry referred to in [35](e)(vi) of the Points of Claim is[147]

he raised a point which is a good insight on his clients' thinking - he said that assuming litigation is commenced and that eventually you win everything, bearing in mind the other litigation on foot (which is already 8 months old) when do we think we will get there - ie the suggestion being that you will get tied up in endless (years of) litigation without getting to a judgment or payment if you don't agree to resolve everything now. (emphasis added)

1. It is the emphasised portion of this passage that appears in the Points of Claim. Those parts of the passage on either side of the emphasised portion are, evidently, what Mr Prescott inferred from Mr Woods' remarks.
2. Shorn of Mr Prescott's interpretation, the remarks attributed to Mr Woods amount to little more than a statement by the solicitor on one side of a dispute raising the spectre of delay in litigation as a tactical consideration in discussions with the solicitor the other side of the dispute. As much as reliance on such delay as a litigation tactic may be lamentable, it hardly comes as a shock that reference to matters of this kind are made, from time to time, in modern commercial litigation. It cannot lead to an inference that the party is thereby conducting the litigation with no genuine belief in its legal rights and for collateral purposes.
3. Indeed, insofar as the genuineness of the dispute over Royalty Component B is concerned, the 2013 email records Mr Woods as saying that[148]

he thinks the meaning of the words used in clause 8.2 [i.e. the royalty clause] is fairly clear (implying that they don't mean what we say they do/Mineralogy is running a strained interpretation of those words).

1. The 2013 email, in the end, adds nothing to the fact of the Royalty Component B proceedings themselves.

7. Cosmo proceedings - Points of Claim [35](e)(vii)

1. The Cosmo proceedings were also a 'win' for Mineralogy, albeit that they could not be described as an unqualified victory.
2. At their heart, the Cosmo proceedings concerned payments made by Mineralogy out of the Administrative Fund established under the Facilities Deeds for purposes unrelated to the Port facilities (challenged payments). The challenged payments totalled $12,167,165.60, including $10,000,000 paid to Cosmo Developments Pty Ltd (Cosmo Developments), another company associated with Mr Palmer.[149]
3. The CITIC parties (specifically Sino Iron and Korean Steel) alleged that the challenged payments were made by Mineralogy in breach of trust, and that Mr Palmer and Cosmo Developments (the first and second defendants, respectively) procured the breaches of trust or knowingly participated in them, and so were liable to account to the CITIC parties for the breaches of trust.[150]
4. There were a number of unusual features of the litigation.
5. First, shortly before the hearing began, Mineralogy paid to the CITIC parties the full amount of $12,167,165.60 on account of the challenged payments. Notwithstanding this, neither the plaintiffs nor the defendants disclosed that fact to the court at the time.[151]
6. Secondly, the defendants conceded in the Cosmo proceedings that, if the Administrative Fund constituted a trust, that:[152]

(a) the challenged payments were made by Mineralogy in breach of trust;

(b) if Mr Palmer had knowledge of the trust that he procured the breaches of trust; and

(c) if those findings were made then (subject to the defence of unclean hands) the plaintiffs were entitled to the relief claimed, without there needing to be a finding that the breaches of trust were fraudulent or dishonest.

1. Notwithstanding the concessions, the CITIC parties pressed their claim that the alleged breaches of trust were fraudulent or dishonest.
2. In the result the CITIC parties' claims in the Cosmo proceedings failed at the first hurdle. That is, Jackson J concluded that the Administrative Fund contributions were not held on trust by Mineralogy.[153] As a consequence, the other issues in the matter were, strictly, not necessary to decide.
3. Nevertheless, in relation to the issue of whether the Administrative Fund constituted a trust, there is nothing in Jackson J's reasons for decision to suggest that the CITIC parties' contention (to the effect that there was a trust) was not reasonably arguable or genuinely put. Indeed, his Honour recognised that the issue involved 'difficulties that are not easily solved'.[154] The existence of the proceedings themselves did not disclose an improper purpose.
4. The highest the position that can be put, as reflected in Jackson J's reasons, is that one of the CITIC parties' motivations in bringing the Cosmo proceedings was to cause Mr Palmer embarrassment. His Honour said, in the context of the CITIC parties' case that the breaches of trust were fraudulent or dishonest:[155]

In view of those findings, it is unnecessary for me to go further. It is not necessary to make a specific finding of dishonest or fraudulent design by Mineralogy, through the first defendant, or of dishonest assistance with knowledge by the first defendant. There are reasons why, in my view, I should not do so. First, such findings could cause significant reputational damage to the first defendant, but they are not necessary in order to resolve the liability of the first or second defendants as a matter of fact and law. Second, the way in which this case has been conducted does admit of the possibility that the plaintiffs seek not only to obtain the relief claimed in the proceeding but also to embarrass the first defendant at the same time.

1. It is noteworthy that the putative purpose of embarrassing Mr Palmer was not regarded by his Honour as giving rise to an abuse of process and indeed, his Honour did not question the plaintiffs' purpose as being 'to obtain the relief claimed in the proceeding'.
2. Moreover, Jackson J went on in the Cosmo Decision to consider, and reject, Mineralogy's defence of unclean hands.
3. Significantly, that defence of unclean hands was eerily similar to Mineralogy's allegation, in the Points of Claim, as to the Fulcrum Purposes. At that time the allegation took this form:[156]

From in or about mid to late 2012, the Plaintiffs and CITIC have engaged in a campaign to improperly apply pressure to the First Defendant and Mineralogy for the purpose of compelling Mineralogy to agree to replace the Project Agreements with agreements, transactions or arrangements substantially more favourable to the Plaintiffs and CITIC.

1. In support of that allegation, as in the Points of Claim, Mr Palmer and Cosmo Developments relied upon the Royalty Component A proceedings and the Royalty Component B proceedings in addition to the Cosmo Proceedings themselves as evidence of the improper purpose.
2. Justice Jackson's conclusions in relation to the Royalty Component A and Royalty Component B proceedings accord with my own (albeit that, at the time of the Cosmo Decision, the Royalty Component B proceedings were still ongoing). In relation to the former, his Honour said: [157]

In my view, the plaintiffs' conduct in defending the Royalty Component A proceedings does not support the existence of the alleged campaign or purpose. That the defendants were successful in the proceeding is not enough. A retrospective impression of the strength of the legal arguments will not without more support an inference that the plaintiffs did not believe that they had a sound basis to defend the proceeding. It would also amount to an undesirable collateral challenge to Edelman J's view as between related parties.

1. His Honour struck out the pleadings in relation to these allegations as unarguable.
2. Jackson J reached the same conclusion in relation to the Cosmo proceedings themselves. His Honour rejected outright the suggestion that they were brought for collateral purposes, saying:[158]

The defendants allege that the plaintiffs have persisted in making allegations of fraud or dishonesty that are unnecessary for the plaintiffs to obtain relief. In my view, to the extent that these allegations suggest misconduct by the plaintiffs in the conduct of their case, they should be rejected. From my earlier reasons, it appears that as a matter of law the required state of knowledge for some of the alleged causes of action was not clear. The plaintiffs should not be criticised for alleging fraudulent knowledge when that would or may have been required proof on some of the alternative available causes of action. I specifically find that the plaintiffs had a reasonable basis for making those allegations, although it has not been necessary to decide some of them.

...

In a similar vein, I reject outright the defendants' allegations that the plaintiffs acted in any improper way in alleging in support of their case that at one point, probably in about May 2014, the first defendant falsely manufactured a document described as the 'Port Management Services Agreement' to support a contention that there was a contract with QNI. The defendants allege that since they did not seek to deploy the document as genuine in any court proceeding, the plaintiffs' conduct was in some way improper in seeking to rely on its false manufacture in support of their case in this proceeding. I reject that assertion. The unexplained creation of an apparently false contract of that kind was always relevant to the plaintiffs' case as pleaded and considered above, in my view.

The defendants allege that the plaintiffs' purpose in persisting in allegations as to the first defendant's fraudulent purpose and as to the false manufacture of the Port Management Services Agreement was to generate publicity adverse to the first defendant and thereby apply pressure to him. In my view, it is possible that the plaintiffs had that purpose but it does not seem to me that the defendants have any arguable basis for contending thereby that the plaintiffs commenced or continued this proceeding by applying illegitimate pressure to the defendant in such a way as to arguably sustain an unclean hands defence.

1. In the face of these findings by Jackson J, who managed and heard the Cosmo proceedings, it may legitimately be asked: what has changed? How could this Court be in any better position to interrogate the bona fides of the CITIC parties in bringing the Cosmo proceedings than the judge who actually determined them?
2. Mineralogy's submissions before me were to the effect that there is now new evidence before this Court as to the existence of the Fulcrum Purposes being the motivation for the Cosmo proceedings.
3. In particular Mineralogy relied upon evidence given by Mr Charles Philip Blaxill given in the SRF proceedings.[159] Mr Blaxill was a solicitor from Allens who acted for the CITIC parties in the Cosmo proceedings.
4. The alleged relevance of the Cosmo proceedings to the SRF proceedings was that the CITIC parties relied upon Mineralogy's conduct in the Cosmo proceedings in its counterclaim in the SRF proceedings seeking that Mineralogy be removed as trustee of the Site Remediation Fund. The CITIC parties contended that Mineralogy's conduct, as revealed by the Cosmo proceedings, demonstrated that it was an unsuitable trustee. In the SRF Decision Martin J concluded that it was[160]

neither appropriate nor viable for this court in a context of counterclaim arguments over the suitability of Mineralogy to remain as a trustee of the Site Remediation Fund, to descend into and attempt to pick apart other aspects of disputes already arbitrated or litigated at great length elsewhere.

1. In what will now be a familiar refrain, Mineralogy now seeks to rely upon the evidence led by the CITIC parties in the SRF proceedings to impugn Mineralogy's conduct in the Cosmo proceedings as evidence to impugn the CITIC parties' conduct in those proceedings. It is no wonder that delving into litigation between these parties sometimes has all the seeming of walking into a room of mirrors.
2. As it is, I find that the evidence of Mr Blaxill given in the SRF proceedings was entirely innocuous and incapable of supporting an inference as to the Fulcrum Purposes.
3. The two matters from his evidence relied upon by Mineralogy were:

(a) cross‑examination of Mr Blaxill in relation to arbitral proceedings involving Mineralogy that preceded the Cosmo proceedings;[161] and

(b) cross‑examination of Mr Blaxill in relation to the motivation behind the Cosmo proceedings, having regard to Mineralogy's repayment of the $12,167,165.60 referred to at [268[162]] above.162

1. As to the first matter, Mr Blaxill was cross‑examined in relation to the fact that the CITIC parties did not take steps to join Mr Palmer and Cosmo Developments to the arbitration, or take steps to preclude them from defending the Cosmo proceedings in light of the arbitral proceedings (in effect by way of an issue estoppel). That part of the cross‑examination concluded with the following unremarkable question and answer:[163]

And, indeed, it would be correct to say, would it not, that in the Cosmo proceedings used for relitigation, exactly the same facts and issue that had been litigated in the second arbitral award, save that in the case of the arbitral award they were against Mineralogy as the party in control of the account - or primarily liable - and as against Cosmo and Palmer in the Cosmo proceedings, they were for [accessorial] liability?---I disagree with that. The - the arbitral proceedings were for an account of how the money was spent and there was a series of further relief that was sought which included, but wasn't only, that there was a trust and payments should be made back into where the money was being held as trustee. But the Cosmo proceedings were solely in relation to there being a trust and that was advanced in any claim against Mr Palmer and Cosmo. So it was not completely the same by any means whatsoever.

1. In my view, Mr Blaxill's evidence in this respect could not conceivably support an inference as to the Fulcrum Purposes.
2. As to the second matter from Mr Blaxill's evidence, it was, by the time of the Cosmo Decision clear that Mineralogy had repaid the $12,167,165.60 and that the CITIC parties' motivation in the proceedings was for an account of profits. Mr Blaxill's evidence in the SRF proceedings simply confirmed that to be the case. In that context he explained the motivation in the following evidence:[164]

But you would agree with me, wouldn't you, that any rational defendant who has decided, 'I'm not interested in having the dispute. Even if I don't agree with it, I'm liable, I'm just not interested in having it', the ordinary course is to tender the amount the plaintiff is claiming and bring the dispute to the end?---That might be the ordinary course, but in this circumstance the - the plaintiffs, the - Sino and Korean - were determined to work out what had exactly happened to the funds that had been paid into the administration fund. And the purpose was, as I said, the account, and it was not clear at the time of this correspondence as to what had actually happened to the money and how it had been used, and that was the key determining outcome from the arbitration proceedings.

Right. Sino and Korean were after an inquisitorial rather than adversarial examination?---There was both elements to it.

1. In that regard, while Mr Blaxill accepted that he did not have a sincere professional view that there could be an account of profits of $2,167,165.60 used by Mr Palmer for political advertising, he said, in relation to the $10,000,000 paid to Cosmo Developments, that they 'thought there was still something that needed to be investigated about where this money had gone'.[165]
2. None of this evidence is capable of supporting an inference that the Cosmo proceedings were brought for the Fulcrum Purposes. It certainly does not cause me to doubt the correctness of Jackson J's conclusion in the Cosmo Decision regarding the unclean hands defence.
3. The conduct of the Cosmo proceedings do not arguably support an inference of the Fulcrum Purposes.

8. Criminal complaints - Points of Claim [35](e)(viii)

1. Mineralogy also rely upon the fact that the CITIC parties made complaints in relation to alleged criminal conduct by Mineralogy (including Mr Palmer) concerning the payments out of the Administration Fund to authorities, including the Western Australia Police Force and ASIC.[166]
2. The fact that one party to a dispute has made complaints to authorities in relation to the matters in dispute may provide an indication of the seriousness with which it regards the alleged misconduct of the other party. It may also demonstrate animosity on the part of the complaining party. It does not, however, thereby support the inference that the party has no belief in the basis for their complaint. Less still, could it form the basis to infer that other litigation conducted by the party was brought for improper purposes.
3. Ultimately, in my view, the complaints made by the CITIC parties to various authorities in relation to the conduct of Mineralogy and Mr Palmer are nothing more than an artefact of their broken relationship. They cannot support an inference as to the Fulcrum Purposes.

9. Risk assessment spreadsheet - Points of Claim [35](e)(ix)

1. The 2017 risk assessment spreadsheet was also a document relied upon by Mineralogy in the SRF proceedings.[167] On its face, the spreadsheet appears to be the kind of risk matrix of which large corporations and global law firms seem to be particularly enamoured.
2. Having closely reviewed the document, I entirely agree with Martin J's assessment of it in the SRF Decision:[168]

There was a document relied upon by Mineralogy suggesting, it was put, a nefarious intent towards the renegotiation of contracts. The document consists of an internal Excel spreadsheet or worksheet of CITIC, which looks to be an internal CITIC document with the heading 'CITIC Risk Management Library' and displaying inputs that are seen written in both English and Chinese. In the worksheet titled 'Risk Assessment' column F is seen headed, 'Second Degree Risk Definition' and reads in general and non‑specific terms.

Included in the worksheet is a sentence directed towards legal risk. Part of the risk seen as referred to is administrative liability or criminal liability risk. But nothing tangible emerges out of that, on my assessment. At column H, under a heading 'Risk Elements' (for reference only - being an English translation of the [Chinese] written column G) there is seen an input at cell H119 as follows:

Legal Dispute Prevention Mechanism Risk

Civil or criminal suit to deal with the risk Business Partners Debt Transfer Risks (row 89)

But again, that is simply all too broad and non‑specific, by my assessment, to be of any present forensic significance. Further seen along row 119 at column AE, under a heading, 'Commentary and description of risk management status', the worksheet input reads (cell AE119):

Risks are currently being adequately managed. CPM has a dedicated Special Projects Team to manage the major litigations with Mineralogy.

Again, I would assess that statement as both bland and wholly benign. Likewise, cell AG119 reads in generic terms as regards an establishment of a specialised legal team. I assess that as equally benign. Indeed, I would be very surprised if there were not specialised legal terms in place for parties on both sides of this litigation - given these parties profligate other litigation commitments as against each other. Likewise, for column AI119, I assess that as equally benign.

1. I would, on this occasion, go even further than Martin J. In my view, not only does the 2017 risk assessment spreadsheet not support Mineralogy's contention that the substantive proceedings have been brought for the Fulcrum Purposes, it positively tells against that contention.
2. The 2017 risk assessment spreadsheet, for example, includes the following list of litigation risks: [169]

Certain legal disputes with individuals and other companies have a significant negative impact on the company. The disputes impact the company's operations, production costs and reputation, increasing uncertainty about the project's ability to continue operating in the future.

Major Risk: Unfavourable rulings on disputes with Mineralogy and Mr Clive Palmer giving rise to significant financial liabilities or other operational impacts, including:

• unsuccessful appeal of Royalty B decision in favour of Mineralogy (appeals heard on 4 and 5 December 2018 with judgment reserved);

• unsuccessful defence of indemnity claim by Palmer and Mineralogy under Fortescue Coordination Deed (one relating to losses said to be incurred following the liquidation of Queensland Nickel and another relating to losses said to have been incurred following the liquidation of Palmer Petroleum;

• unsuccessful application to strike out / defence of Minimum Production Royalty claim (No 5);

• unsuccessful defence of new Site Remediation Fund claim;

• lack of success in claim by CITIC Parties, and/or defence of Palmer/Mineralogy counterclaim, in CPOA proceeding;

• failure to obtain approval of Mine Continuation Proposals, the Program of Works and the repurposing of certain tenements in a timely manner, or at all;

• lack of success in claim by CITIC Parties in respect of Mine Continuation Proposals, Program of Works and tenure repurposing; and

• potential future claims alleging the CITIC Parties have breached the Project Agreements, or potential notices of suspension or termination of the project, by Mineralogy or Palmer on various grounds.

1. As will be apparent, the list includes at least two risks that did not come to pass; that is, where the CITIC parties were successful in the litigation. Those risks include:

(a) 'unsuccessful defence of the Site Remediation Claim' (i.e. the SRF proceedings). The defence to that claim was successful; and

(b) 'lack of success in claim by CITIC parties ... in CPOA proceeding'. This is a reference to proceedings in this Court in relation to the parties' China Project Option Agreement (CPOA). The CITIC parties were ultimately successful in that claim also.[170]

1. The inclusion of these proceedings as 'risks' demonstrates that the 2017 risk assessment spreadsheet is just that: a prudential assessment of litigation risks then facing the CITIC parties.
2. Perhaps more significantly, the 2017 risk assessment spreadsheet specifically identifies as 'risks' both the failure to obtain approval of the mine continuation proposals and lack of success in what appears to be the anticipated substantive proceedings. That is, it (internally) records the significance to the CITIC parties of their interest in the success of the substantive proceedings and in the approval of the 2017 MCPs.
3. Such an indication of the significance of the substantive proceedings belies the notion that the substantive proceedings are not a genuine claim on the part of the CITIC parties and that they have been brought for the Fulcrum Purposes.

10. Ms Rifici's evidence in the SRF proceedings - Points of Claim [35](e)(iv)

1. The final matter relied upon by Mineralogy may well, given the history of the litigation, be the catalyst for the stay application. It was evidence given by Ms Melanie Lee Rifici (a lawyer employed by Allens) in the SRF proceedings.[171]
2. Ms Rifici was cross‑examined in relation to the existence and function of the Fulcrum Group. Ms Rifici's evidence in that regard was, in my assessment, innocuous and lends no support to the suggestion that the substantive proceedings, or any other litigation, have been commenced for the Fulcrum Purposes.
3. In this context, I, again, need do no more than record my agreement with the following findings by Martin J in the SRF Decision. His Honour (who had the advantage of having seen and heard Ms Rifici give evidence) said:[172]

A significant part of the cross‑examination of Ms Rifici saw questions directed to her concerning her knowledge of a project group within CITIC known as the Fulcrum group, which Ms Rifici answered had been ' ... set up to deal with correspondence and any disputes, etcetera, between CITIC and Mineralogy' (ts 320).

Ms Rifici answered affirmatively to a number of questions set out below as put to her by Mineralogy's senior counsel about the Fulcrum group (ts 320 ‑ 321):

And do you understand that part of its task is to manage that relationship with Mineralogy?---Yes. That's correct.

And do you understand that part of its task is also to try and alter the existing contractual arrangements with Mineralogy?---Yes.

All right. And that's because CITIC - or Sino and Korean - consider that the present contractual arrangements they have don't suit them.

Objection was taken to the question, inter alia, upon the basis of legal professional privilege. After some arguments on each side, I did not uphold the objection (ts 321).

Nevertheless, after that, the question was put again in slightly revised terms (ts 322):

And the reason that Sino and Korean wanted the contractual arrangements changed with Mineralogy was because they did not consider that those contracts suited them?---I'm not sure that's entirely correct. I think there are - our client considers there were a number of problems with the documents and that's - - -

Ms Rifici referred to her clients' perceived problems with documents, including vagueness or enforceability issues, as well as construction issues, leading to a further question to her from senior counsel for Mineralogy (ts 322):

Sure. But they're not the difficulties you're talking about. The difficulties you're talking about is the commercial terms are ones that Sino and Korean consider are unsatisfactory. That's correct, isn't it?---Yes.

Ms Rifici was then asked about her involvement in providing written or other (legal) advices from time to time to executives with Korean and Sino who were part of the Fulcrum group (ts 322). She accepted she had provided such advices, effectively, on a frequent basis over a number of prior years. I do not assess or infer anything sinister in relation to Ms Rifici having provided legal advice from time to time whilst a legal representative of Allens to Allens' clients.

...

During the course of senior counsel for Mineralogy's closing submissions, it appeared then that much was sought to be made by Mineralogy of what allegedly had emerged out of Ms Rifici's evidence concerning an existence or objectives of the Fulcrum group. In particular, the admission elicited in cross‑examination from Ms Rifici about difficulties with the commercial terms of Sino Iron and Korean Steel's agreements with Mineralogy was heavily emphasised as suggesting something rather sinister (see ts 597).

However, I did not and do not draw any such sinister inferences from this evidence or, indeed, from any of the limited trial evidence concerning the Fulcrum group. As I indicated in my dialogue with senior counsel for the CITIC defendants during closing submissions, I do not infer anything sinister around the fact of a contracting party's desire to renegotiate over, or to revise or to amend the terms of an existing arrangement (ts 568). 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. However, I saw nothing to support such a conclusion by way of inference or otherwise from out of the evidence put before me in this trial.

1. In the application before me, Mineralogy submitted that Ms Rifici's evidence 'firmly establishes in terms the Fulcrum Purposes'.[173] 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.
2. In particular, Ms Rifici did not say, nor indeed was she asked, whether the Fulcrum Group had, as one of its purposes[174]

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 ...

1. 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'.[175]
2. Mineralogy submits that the Points of Claim squarely raise illegitimate or unlawful means on the footing of evidence not before Martin J.[176]
3. 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. In light of the forgoing, I conclude that there is no reasonably arguable basis to contend that the substantive proceedings should be stayed as an abuse of process, sufficient to justify the further hearing of the stay application.
2. In summary, there is no basis upon which it can reasonably be argued that the CITIC parties have brought the substantive proceedings with no genuine belief in the claims or that they do not intend to prosecute the substantive proceedings to a successful conclusion.
3. Nor, in my view, is there a reasonably arguable basis to contend that the matters identified in the Points of Claim support an inference that the CITIC parties have been conducting litigation for improper and collateral purposes. Mineralogy's allegation as to the existence of the Fulcrum Purposes is, as I have said, a serious one and I have treated it seriously. In the end, however, having fully considered all of the matters identified by Mineralogy, I have concluded that there is no substance to the allegation.
4. Not only do I find that there is no reasonable basis for the allegation of the Fulcrum Purposes generally, for the purposes of the stay application it would be necessary for the Court to be satisfied that these particular proceedings (i.e. the substantive proceedings) have been brought for the Fulcrum Purposes. There is no basis for that contention whatsoever. In my view, the substantive proceedings have been brought for the purposes of seeking the relief claimed by the CITIC parties. Whether the CITIC parties will be successful in obtaining any, or all, of that relief is a different matter.
5. In all of the circumstances, the stay application has insufficient prospects of success to justify the time, expense and delay that would be required for a 'full hearing' of all of the matters sought to be raised by Mineralogy. It would not be in the interests of justice to delay the substantive proceedings further and to divert the parties and the resources of the Court by such an interlocutory hearing.
6. For these reasons Mineralogy's application for a permanent stay must be summarily dismissed.
7. It remains then for me to consider Mineralogy's alternative claim that the substantive proceedings be stayed and the statement of claim be struck out to the extent it raises matters the subject of issue, Anshun or abuse of process estoppels arising by reason of the Port proceedings.

Conclusion as to alternative relief (Port proceedings)

1. I am firmly of the view that the Port proceedings do not, independently, give rise to an arguable basis for the Court to grant a stay of the substantive proceedings, even to the limited extent claimed in the alternative relief sought in [76A] of the Points of Claim or to strike out any part of the Statement of Claim on that basis.
2. There are two reasons for that conclusion.
3. First, I do not consider that the Port proceedings, even arguably, determined, as between the parties, any issue of construction of the Facilities Deeds in a manner that is sought to be challenged or undermined in the substantive proceedings.
4. In that regard, properly understood, the Port proceedings did not hold that there was an unconstrained entitlement to third party use of the facilities constructed at the Port by the CITIC parties leaving space for further facilities to be developed separately in the future. Even less did Edelman J (or the Full Court) in the Port proceedings determine that to be the case as a matter of construction of the Facilities Deed.
5. That contention, which was central to Mineralogy's submissions on this point, follows, in my respectful view, from a misreading of [292] and [293] of Edelman J's reasons in Mineralogy (No 6). His Honour was not, in those passages, identifying rights of third parties arising under the Facilities Deeds (or elsewhere). Rather, his Honour was identifying the two possible ways in which, theoretically, third parties might use facilities within the area of General Purpose Lease 08/52.
6. When his Honour identified that one possible way that that 'could' occur was by the development of the facilities by the CITIC parties in such a way that third parties also built facilities in the area,[177] his Honour was not there referring to a right for third parties to do so. Rather, his Honour was there identifying some of the background context in which the Facilities Deeds operated.
7. In truth, the right (or entitlement) of third parties to build facilities at Cape Preston was not an issue in the Port proceedings. Indeed, the only facilities that were in contemplation, and that were the subject of the Port proceedings, were facilities built by the CITIC parties. The issue to which the Port proceedings were directed was as to the control and ownership of those facilities and whether they were, as Mineralogy contended, vested in Mineralogy.
8. The question of construction of the Facilities Deeds that was resolved by the Port proceedings was that the Facilities Deeds did not confer on Mineralogy ownership or possession of the facilities constructed by the CITIC parties, unless and until those facilities became Shared Facilities.[178] Given that there was no evidence of a third party operation in existence, whether (and in what way) any of the CITIC parties' facilities would become Shared Facilities was not resolved by the Port proceedings.[179]
9. None of these conclusions relate to an entitlement for third parties to build facilities at Cape Preston, nor are those conclusions challenged in the substantive proceedings.
10. In this context, of course, it may be recognised that the Facilities Deeds (all six of them) recognise that facilities may be built in the area the subject of the Facilities Deeds by persons other than the party to each Deed (i.e. the Company). Indeed, that would appear to be an obvious consequence of the fact that there are six identical deeds enabling different parties (i.e. the Company under each Deed) to obtain the approval of Mineralogy for them to build facilities. The rights of each party to the Facilities Deeds to actually build facilities is controlled by the Facilities Deeds themselves. The metes and bounds of the capacity for third parties to build facilities in the Preston Area was simply not an issue in the Port proceedings.
11. To that end, and in light of that background, the Facilities Deeds enable Mineralogy to impose conditions on development proposals in contemplation of future use by Mineralogy or third parties (cl 3.3(a)). They also, as I have also observed, make provision for Company Facilities to become Shared Facilities. It may be that the creation of such Shared Facilities (including facilities constructed by the CITIC parties) will yet come to pass.
12. In this regard, it is notable that the Points of Claim in relation to the Port proceedings describe the alleged inconsistency between the Port proceedings and the relief sought in the substantive proceedings not as relating to a legal conclusion, or even a factual finding, but as arising from the 'practical outcome' sought to be achieved 'namely exclusive use of the Port for [the CITIC parties]'.[180]
13. As I have discussed at [199] to [205] above, however, it is by no means self‑evident that the effect of the substantive proceedings would be to give the CITIC parties 'exclusive use of the Port'. It is clear that the extent to which the relief sought by the CITIC parties would affect the capacity or ability of other users to conduct operations from the Port is a matter of factual and legal complexity that cannot be resolved in a summary way. Nor is there any aspect of the Statement of Claim that could be 'struck out' by reason of the Port proceedings.
14. As I have said, the CITIC parties accepted, before me, that Mineralogy's Defence in the substantive proceedings raised those issues as a basis upon which the CITIC parties should be denied the relief claimed.[181] The extent to which it could be said, even in a practical sense, that effect of the relief sought in substantive proceedings would be to give the CITIC parties 'exclusive use of the Port' is therefore properly a matter for trial.
15. Which brings me to the second reason why the Port proceedings do not, independently, give rise to an arguable basis for the Court to grant a stay of the substantive proceedings, by reason of some form of estoppel.
16. That is because the issues raised by Mineralogy as to the effect of the Port proceedings, even to the extent that they raise a triable issue, are not matters that could justify the remedy of a stay of proceedings. As the plurality said in Lunt, a stay of proceedings is a remedy reserved for cases where the alleged abuse cannot be remedied in any other way. Their Honours said:[182]

In cases where proceedings are brought for an improper purpose, 'no remedy is likely to be appropriate other than a stay of the proceedings' because, in such cases, the abuse of the court's processes cannot be remedied in any other way. But where a court is able, by means less draconian than summary termination, to cure any apprehended prejudice to a fair trial so as to ensure that justice is done, the court's responsibility to the parties, and to the community, requires that those other means be deployed so that the matter before the court is heard and determined in accordance with the justice of the case. So, for example, where a party has engaged in sharp practice apt to delay the fair trial of a matter, an order for costs may be sufficient to cure the prejudice to the other party. Where a party's misconduct amounts to a contempt of court, such as the destruction of material evidence, the vindication of the court's authority may require the punishment of the miscreant. The remedy of a stay of proceedings, however, is concerned not with the punishment of the miscreant but with the protection of the integrity of the court's ability fairly and justly to determine the matter in dispute.

1. Having rejected Mineralogy's case that the substantive proceedings are brought for an improper purpose, the issues raised by Mineralogy in relation to the effect of the Port proceedings are at best matters to be addressed by means other than a stay of the proceedings. As the High Court said in Lunt, the Court's responsibility to the parties, and to the community, requires that those other means be deployed so that the matter before the court is heard and determined in accordance with the justice of the case.
2. Mineralogy contended at the hearing before me that the estoppel issue said to arise from the Port proceedings 'can't go away' and will have to be dealt with.[183] That may well be the case. In that context Mineralogy raised the prospect of the issue otherwise being dealt with in advance of trial.[184] It will be apparent from what I have said that I have real doubt that that would be appropriate, or even possible.
3. Be that as it may, it is clear, in my view, that the issues raised in relation to the Port proceedings do not provide an arguable basis for staying the substantive proceedings, even in part. Nor do they raise any aspect of the Statement of Claim that could be 'struck out'. If it is suggested that there is some proper way of addressing discrete issues in the substantive proceedings in advance of trial, that is for another application on another day.
4. For these reasons, I also conclude that Mineralogy's alternative claim in the Points of Claim should be summarily dismissed.

1. At the commencement of these reasons, I observed that the issue before me concerned whether Mineralogy has an arguable basis for opening up another front in the ongoing battles between it and the CITIC parties.
2. To do so would be to embark upon a drawn out interlocutory process that would not resolve a substantive dispute between the parties and, indeed, would be directed to whether the CITIC parties should be prevented from having its substantive claim determined at all.
3. I am satisfied that Mineralogy has been given a full opportunity to demonstrate that there is a reasonable basis for embarking upon that course, rather than proceeding with the determination of the substantive dispute between the parties on its merits. In my view, Mineralogy has not demonstrated that there is a reasonably arguable case for the Court to exercise its exceptional jurisdiction to stay the substantive proceedings in whole or in part.
4. I am comfortably satisfied that it would not be in the interests of justice and would not best ensure the attainment of the objects set out in O 1 r 4A and r 4B, for the stay application to be the subject of any further hearing and that it should be summarily dismissed. The substantive proceedings should not be further delayed by, or the Court's resources be further devoted to, the stay application.
5. The stay application will be dismissed.

Interlocutory application for the proceeding to be transferred to the Supreme Court filed

First and Second Respondents (First and Second Defendants)

Orders in relation to discovery conferral made on 18 March 2019

Order made transferring proceedings to the Supreme Court on 17 May 2019

Request that the matter be admitted to the CMC List

Order admitting the proceedings to the CMC List of Justice Kenneth Martin and other procedural orders made on 10 June 2019

Strategic conference held on 16 August 2019. Orders made in relation to the filing of amended defences and mediation.

Parties attended a mediation before Registrars S and C Boyle on 16 and 24 October and 18 November 2019

Directions hearing held on 25 February 2020. Orders in relation to amended pleadings, conferral regarding discovery categories and timing of discovery and orders in relation to a potential strike‑out or summary judgment application (by either party) made.

Directions hearing held on 19 March 2020. Orders in relation to conferral regarding discovery categories and timing of discovery and orders in relation to a potential strike‑out or summary judgment application (by either party) made.

Chamber summons for strike‑out of part of the First Defendant's Further Amended Defence filed

Chamber summons for extension of time under orders made 19 March 2020 filed

Special appointment held on 5 May 2020. Extension and variation orders to the orders made 19 March 2020 were made.

Special appointment held on 18 May 2020 to hear Plaintiff's application for strike‑out of the First Defendant's Further Amended Defence

(Note: an updated discovery categories table was filed on 19 May 2020)

Directions hearing held on 20 May 2020. Discovery orders and orders in relation to conferral regarding particulars of loss and damage were made.

Judgment in relation to Plaintiffs' application for strike‑out of part of the First Defendant's Further Amended Defence delivered on 1 September 2020. Orders made in relation to that application on 3 September 2020.

Minute of proposed orders filed in which the First and Second Defendants sought an order that the parties confer regarding the effect of the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Amendment Act 2020 (WA) on the proceeding, including the question of whether the proceeding has been terminated.

Directions hearing held on 3 September 2020. Orders in relation to loss and damage discovery made.

Plaintiffs' list of documents, by way of the first tranche of discovery, provided

Plaintiffs' revised list of documents, by way of the first tranche of discovery, provided

Directions hearing held on 27 November 2020. Orders in relation to discovery and the First and Second Defendants' permanent stay application made.

Affidavit of Kane Christopher Jones verifying list of documents filed

Chamber summons and points of claim for permanent stay application filed

Affidavits of Geoffrey Stephen Smith and Kane Christopher Jones filed in support of permanent stay application filed

Directions hearing held on 24 February 2021. Orders in relation to discovery and the First and Second Defendants' permanent stay application.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.

Research Associate to the Honourable Chief Justice Quinlan

[1] Palmer v CITIC Ltd [No 2] [2019] WASC 14 (S) [8] (Martin J).

[2] Mineralogy Pty Ltd v Sino Iron Pty Ltd [2021] WASC 45 [525] (Martin J).

[3] First and Second Defendants' Outline of Submissions on Plaintiff's Summary Dismissal or Strike Out Application dated 1 April 2021 (Mineralogy's Written Submissions) [8], [41].

[5] While the first and second defendants are collectively referred to in these reasons as 'Mineralogy', in the context of the State Agreement, and indeed all agreements relating to the Sino Iron Project, 'Mineralogy' is a reference to the first defendant only, Mineralogy Pty Ltd.

[6] The Sino Iron Project is a defined term in the State Agreement.

[7] For a review of a number of the other agreements between the parties see Sino Iron Pty Ltd v Mineralogy Pty Ltd [2020] WASC 311 [24] (Martin J).

[9] The following clauses are taken from the Mining Right and Site Lease Agreement (MRSLA) in relation to Sino Iron. The MRSLA in relation to Korean Steel is in the same terms, save that the references to 'Sino' are references to 'Korean'.

[10] Mineralogy Pty Ltd v Sino Iron Pty Ltd [2013] WASC 194.

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

[12] Sino Iron Pty Ltd v Mineralogy Pty Ltd [2019] WASCA 80.

[14] The extent of exploration licence 08/636, and thus the Preston Area, was the subject of the Federal Court's decision in Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6) [2015] FCA 825; (2015) 329 ALR 1 (Mineralogy (No 6)) (see at [87] (Edelman J); Annexure 3).

[15] Mineralogy (No 6) [294] ‑ [295] (Edelman J).

[16] See generally Mineralogy (No 6) [375] ‑ [378] (Edelman J).

[17] See generally Mineralogy (No 6) [378] (Edelman J).

[18] See Mineralogy (No 6) and Mineralogy Pty Ltd v Sino Iron Pty Ltd [2017] FCAFC 55.

[19] See Exhibit M, page 23 (Affidavit of Christopher Spielvogel sworn 7 April 2021, Annexure CS4).

[20] In this context, the 'CITIC parties' include CITIC Pacific Mining Management Pty Ltd (CPMM), a subsidiary of the third plaintiff, which is relevantly the agent of Sino Iron and Korean Steel.

[21] Statement of Claim dated 23 October 2018 (Statement of Claim) [138].

[24] First Defendant's Second Further Amended Defence to the Statement of Claim filed 19 October 2018 dated 17 September 2020 (Defence) [137], [140].

[28] Statement of Claim [159] ‑ [160].

[29] Defence [147], [148], [150].

[30] Sino Iron Pty Ltd v Mineralogy Pty Ltd [2020] WASC 311 [76] ‑ [82] (Martin J).

[31] Sino Iron Pty Ltd v Mineralogy Pty Ltd [2020] WASC 311 [90] ‑ [129] (Martin J).

[35] First and Second Defendants' Amended Points of Claim dated 12 April 2021 (Points of Claim).

[37] Defined in the Points of Claim as the CITIC Negotiated Agreements.

[41] Mineralogy Pty Ltd v Sino Iron Pty Ltd [2021] WASC 45.

[42] Victoria International Container Terminal Ltd v Lunt [2021] HCA 11 (Lunt) [14] (Kiefel CJ, Gageler, Keane & Gordon JJ), citing PNJ v The Queen [2009] HCA 6; (2009) 83 ALJR 384; 385 ‑ 386 [3]; [2009] HCA 6; 252 ALR 612, 613 (French CJ, Gummow, Hayne, Crennan & Kiefel JJ).

[43] See Points of Claim [72A](i)(ii).

[45] At the hearing of the application, Mineralogy accepted that this first passage was better expressed as 'an unconstrained entitlement to third party use of the facilities constructed by [those third parties]'; see ts 511.

[46] Mineralogy's Written Submissions [31].

[47] Union Bank of Australia v Harrison Jones & Delvin Ltd [1910] HCA 44; (1910) 11 CLR 492, 504 (Griffith CJ).

[49] John Fairfax & Sons Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465, 476 (McHugh JA).

[50] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77; (2020) 55 WAR 435, 503 [396] (Quinlan CJ).

[51] Dempster v National Companies and Securities Commission (1993) 9 WAR 215, 262 (Malcolm CJ).

[52] Lunt [18] ‑ [19] (Kiefel CJ, Gageler, Keane & Gordon JJ) (references omitted).

[53] Lunt [1] (Kiefel CJ, Gageler, Keane & Gordon JJ) (references omitted).

[54] See [59] ‑ [60] above.

[55] Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 (Williams v Spautz).

[56] Williams v Spautz, 517 (Mason CJ, Dawson, Toohey & McHugh JJ).

[57] Williams v Spautz, 527 ‑ 529 (Mason CJ, Dawson, Toohey & McHugh JJ).

[58] Goldsmith v Sperrings Ltd [1977] 1 WLR 478 (Goldsmith v Sperrings).

[59] Williams v Spautz, 522 (Mason CJ, Dawson, Toohey & McHugh JJ) (references omitted).

[60] Williams v Spautz, 526 ‑ 527 (Mason CJ, Dawson, Toohey & McHugh JJ) (references omitted).

[61] Williams v Spautz, 537 (Brennan J).

[62] Australian Electrical Electronics Foundry & Engineering Union, WA Branch v Hamersley Iron Pty Ltd (1998) 19 WAR 145.

[63] Armstrong v McIntosh [No 4] [2020] WASC 31 (Armstrong v McIntosh [No 4]).

[64] Armstrong v McIntosh [No 4] [216] (Le Miere J).

[65] UBS AG v Tyne [2018] HCA 45; (2018) 265 CLR 77 (UBS AG v Tyne).

[66] UBS AG v Tyne [7] (Kiefel CJ, Bell & Keane JJ) (references omitted).

[67] Mineralogy's Written Submissions [41].

[68] Mineralogy's Written Submissions [49].

[69] Mineralogy's Written Submissions [55] ‑ [57].

[70] Mineralogy's Written Submissions [63].

[71] Mineralogy's Written Submissions [94].

[72] Plaintiff's' Amended Outline of Submissions - Summary Dismissal or Strike Out of Permanent Stay Application dated 9 March 2021 (CITIC Parties' Written Submissions) [20].

[74] Goldsmith v Sperrings, 503 (Bridge LJ).

[78] Mineralogy's Written Submissions [6].

[79] Exhibit M (Affidavit of Christopher Spielvogel sworn 7 April 2021).

[84] Exhibit M (Affidavit of Christopher Spielvogel sworn 7 April 2021) [36].

[85] Exhibit M (Affidavit of Christopher Spielvogel sworn 7 April 2021) [101] ‑ [103].

[86] See e.g. Exhibit M (Affidavit of Christopher Spielvogel sworn 7 April 2021) [91], [108].

[87] Mineralogy's Written Submissions [101].

[88] Mineralogy's Written Submissions [101].

[89] Mineralogy (No 6) [18] (Edelman J).

[90] Mineralogy (No 6) [27] (Edelman J).

[91] Mineralogy (No 6) [31] (Edelman J).

[92] Mineralogy (No 6) [414] (Edelman J).

[93] Mineralogy (No 6) [33] ‑ [34] (Edelman J).

[94] Mineralogy (No 6) [414] ‑ [415] (Edelman J). In relation to 'Shared Facilities', see [23] above.

[95] Mineralogy Pty Ltd v Sino Iron Pty Ltd [2017] FCAFC 55 [189] (Besank, McKerracher & Beach JJ).

[96] Mineralogy (No 6) [794] (Edelman J).

[97] Mineralogy (No 6) [791] (Edelman J).

[98] Mineralogy (No 6) [292] ‑ [293] (Edelman J).

[99] See [62] above.

[100] Mineralogy (No 6) [305] ‑ [306] (Edelman J).

[101] Mineralogy (No 6) [368] ‑ [371] (Edelman J).

[102] Mineralogy (No 6) [305] (Edelman J).

[103] See also Mineralogy (No 6) [32] (Edelman J).

[104] See [62] above.

[105] Mineralogy (No 6) [306] ‑ [311] (Edelman J).

[108] Exhibit M, pages 27 ‑ 28. See also Exhibit M, page 56.

[109] See [98] ‑ [107] above.

[110] Williams v Spautz, 529 (Mason CJ, Dawson, Toohey & McHugh JJ) (references omitted).

[111] As Mineralogy put 'unconcerned with whether you're going to lose': see ts 327, 331 ‑ 332.

[112] See [141] above.

[113] See [127] above.

[114] See [35] above.

[115] Williams v Spautz, 537 (Brennan J).

[117] Williams v Spautz, 529 (Mason CJ, Dawson, Toohey & McHugh JJ).

[120] See [137] above.

[121] MRSLAs, cl 4.5(a); see above [15].

[122] I put to one side the apparent peculiarity that each individual MRSLA confers 'exclusive' occupation over the same area of land to separate entities (i.e. Sino Iron and Korean Steel respectively), a matter not addressed by the parties before me.

[123] See [184] ‑ [185] above.

[125] Mineralogy's Written Submissions [74]; ts 483.

[126] SRF Decision [509] (Martin J).

[129] SRF Decision [212] (Martin J).

[133] SRF Decision [566] (Martin J).

[134] Royalty Component A Decision [6] (Edelman J).

[135] Royalty Component A Decision [10], [247] (Edelman J).

[136] Royalty Component A Decision [13] (Edelman J).

[137] Royalty Component A Decision [3] (Edelman J).

[138] Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 16] [2017] WASC 340 [458] ‑ [459] (Martin J).

[139] Sino Iron Pty Ltd v Mineralogy Pty Ltd [2019] WASCA 80; (2019) 55 WAR 89, 101 (Buss P, Murphy & Beech JJA).

[140] Sino Iron Pty Ltd v Mineralogy Pty Ltd [2019] WASCA 80; (2019) 55 WAR 89, 176 (Buss P, Murphy & Beech JJA).

[141] Mineralogy (No 6) [4] (Edelman J).

[142] Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 13] [2016] WASC 403 (Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 13]) [71], [204] (Martin J).

[143] Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 13] [58] (Martin J).

[144] Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 13] [224] ‑ [234] (Martin J).

[145] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76; (2017) 55 WAR 36.

[149] Sino Iron Pty Ltd v Palmer (No 3) [2015] QSC 94; [2015] 2 Qd R 574 (Cosmo Decision) [1] ‑ [2] (Jackson J).

[150] Cosmo Decision [4] ‑ [5] (Jackson J).

[151] Cosmo Decision [10] (Jackson J).

[152] Cosmo Decision [15] (Jackson J).

[153] Cosmo Decision [109] (Jackson J).

[154] Cosmo Decision [57] (Jackson J).

[155] Cosmo Decision [145] (Jackson J).

[156] Cosmo Decision [151] (Jackson J).

[157] Cosmo Decision [163] (Jackson J).

[158] Cosmo Decision [202], [204] ‑ [205] (Jackson J).

[160] SRF Decision [226] (Martin J); see also at [235].

[168] SRF Decision [213] ‑ [216] (Martin J) (references omitted).

[170] See CITIC Ltd v Mineralogy Pty Ltd [No 5] [2021] WASC 89 and CITIC Ltd v Mineralogy Pty Ltd [No 6] [2021] WASC 144.

[172] SRF Decision [202] ‑ [206], [211] ‑ [212] (Martin J).

[173] Mineralogy's Written Submissions [83].

[174] See [52] above.

[175] See SRF Decision [212] Martin J.

[176] Mineralogy's Written Submissions [83].

[177] That is, in the first sentence of Mineralogy (No 6) [293]; see [154] above.

[178] See [146] ‑ [149] above.

[179] See [155] above.

[180] See [63] above.

[181] See [196] above.

[182] Lunt [20] (Kiefel CJ, Gageler, Keane & Gordon JJ).