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[2015] WASC 272
General information, not legal advice.
Supreme Court of WA
2015-11-03
Chaney J
Original judgment source is linked above.
1 CHANEY J: On 27 November 2014, Edelman J delivered his reasons for decision (November reasons) following the substantive hearing of this action on 12 and 13 November 2014.[1] The relief sought in the proceedings was a declaration as to the obligations of the defendant under particular provisions of two deeds to which the plaintiffs and defendant were parties and which relate to what is referred to as the Sino Iron Project.
2 Following delivery of his reasons, the parties filed submissions as to the appropriate form of orders to give effect to his Honour's judgment. On 6 February 2015, Edelman J made a declaration, having delivered reasons for his conclusion as to the form of the order in light of the parties' submissions (February reasons).[2] The declaration made was in the following terms:
It is declared that, by reference to clause 20.1(a) of the Fortescue Coordination Deed dated 22 October 2008 between the plaintiffs, the defendant and CITIC Pacific Ltd, the defendant is obliged to make an application to the Minister for the Environment for the transfer to the plaintiffs of the status of proponent under Ministerial Statement 635 (as amended) and Ministerial Statement 822.
3 Notwithstanding that declaration, the defendant has not made the application to the Minister for the transfer of the status of proponent.
4 On 31 March 2015, the plaintiffs filed a chamber summons seeking an order, referred to as a supplementary order, that:
5 On 18 May 2015, the defendant filed a chamber summons seeking an order to the effect that, if the court did order the defendant to sign and lodge the application to the Minister for Environment as sought by the plaintiffs, then that order or any other order for the enforcement of the judgment of the court made on 6 February 2015 be suspended pending the decision of the Court of Appeal in CACV 37 of 2015. The reference to the appeal in CACV 37 of 2015 is a reference to an appeal which the defendant has lodged in relation to Edelman J's declaration made on 6 February 2015. The appeal has not yet been heard.
6 It is those two chamber summonses which now fall for determination. The applications would normally have been dealt with by the trial judge. However, shortly after delivering the February reasons, Edelman J was appointed to the Federal Court of Australia, and the applications were referred to me, no doubt because I have replaced Edelman J as case manager of other litigation between these parties in this court.
7 The applications before me, and the submissions of the parties in relation to them, essentially raise three questions. The first question concerns the extent of the court's power to make 'supplementary orders'. The defendant accepts that a court has power to make supplementary orders pursuant to an express, and sometimes implied, liberty to apply following trial judgment. It argues however that this is not a case in which the order sought by the plaintiffs may be made as a supplementary order.[3] The second question is, if the court has jurisdiction to make the order sought, whether it should be made having regard to the circumstances of this case. The third is whether, if the orders are made, they should be suspended pending the outcome of the appeal against Edelman J's judgment.
8 For the reasons which follow, I have reached the conclusion that the order that the plaintiffs seek should not be made, having regard to the facts of the case. That conclusion renders it unnecessary to deal with the question of whether the court's power extends to such an order, and the question as to suspension of the order falls away.
9 In order to understand the conclusion which I have reached on the second question, it is necessary to review the history of the proceedings to date.
10 In his November reasons, Edelman J set out the terms of the relief sought by the plaintiffs in their further amended statement of claim, which was in the following terms:[4]
A declaration that pursuant to clause 20.1 of the Fortescue Coordination Deed, clause 4A and schedule 8 clause 13.1 of the Korean Steel Takeover Deed and clause 7.3(g) of the Sino Iron Takeover Deed, Mineralogy is required to transfer the EPA Approval to Sino Iron and Korean Steel in accordance with condition 3-2 of the Ministerial Statements as outlined at [9] above by:
(i) signing a letter substantially in the form of that provided by CPM with its letter dated 23 November 2012 and lodging it with the Office of the Environmental Protection Authority; and
(ii) lodging with the Office of the Environmental Protection Authority documents substantially in the form of those provided by CPM with its letter dated 23 November 2012.
11 In addition to the declaration set out above, the prayer for relief in the plaintiffs' further amended statement of claim sought 'such further or other orders as the Court deems fit'.
12 Justice Edelman made three observations as to difficulties with the form of the proposed declaration.[5] He recorded that senior counsel for each party had, during the hearing, sought leave to make further submissions as to the form of the order and, in view of the difficulties with the form of the order which he had identified, his Honour granted that leave.[6]
The parties' submissions as to the form of the order
13 The issue as to the form of the order was dealt with by Edelman J on the papers. The plaintiffs filed an outline of submissions on 13 January 2015. In that outline, the plaintiffs submitted that the following orders should be made:
(1) A declaration that Mineralogy is obliged to apply to the Minister for a transfer of the status of proponent of Ministerial Statement 635 (as amended) and Ministerial Statement 822 from Mineralogy to CITIC Pacific Mining Management Pty Ltd (CPMM) (as agent for Sino Iron and Korean Steel); and
(2) By 1 February 2015, Mineralogy must, sign and lodge with the Office of the Environmental Protection Authority the documents annexed and marked 'A', being an application to the Minister for a transfer of the status of proponent of Ministerial Statement 635 (as amended) and Ministerial Statement 822 from Mineralogy to CPMM.
14 The defendant opposed the making of orders in the terms sought by the plaintiffs. In its submissions filed 28 January 2015, it proposed a declaration in the following terms:
The Court declares that, pursuant to clause 20.1(a) of the Fortescue Coordination Deed dated 22 October 2008 between the plaintiffs, the defendant and CITIC Pacific Ltd, the defendant is obliged to make an application, pursuant to condition 32 of Ministerial Statement 635 published under section 45(5) of the Environmental Protection Act 1986, for the transfer to the plaintiffs jointly of the status of proponent under that Ministerial Statement (as amended) and under Ministerial Statement 822.
15 In his February reasons, Edelman J identified two essential issues in dispute concerning the form of the declaration. The first was the question of the person to whom a transfer should be directed in the application for transfer. The second was whether the declaration should provide specific details about the documents to be lodged with the Office of Environmental Protection as part of the application for transfer of the status of proponent and the timing for lodgement.[7] In relation to the question of timing, which was specified in the second of the orders sought by the plaintiffs, Edelman J concluded that it was appropriate to exclude the date by which the obligation must be performed, saying that '[t]he immediate difficulty with this proposed part of the declaration is that it converts a declaration (which was sought at trial) into a mandatory injunction (which was not)'.[8] His Honour noted that no submissions had been made at the trial concerning the timing of any obligation and that such submissions would need to have considered an implication of an obligation to perform cl 20.1(a) within a reasonable time. He observed that evidence may have been necessary concerning what time was reasonable.[9]
16 Justice Edelman then dealt with the question of whether or not an order should provide for the detail as to the manner in which the defendant must apply for the transfer of the status of proponent, being the balance of the second order sought by the plaintiffs. He concluded that that part of the declaration which the plaintiffs sought was not appropriate 'other than to provide the parties with liberty to apply in relation to future disputes concerning the implementation of the declaration'.[10] He provided three reasons as to why the detail as to the manner of compliance with the contractual obligation did not form an appropriate part of the declaration. Those reasons included that: no argument had been directed at trial to the form of the application or the nature or content of documents that were proposed to be included and annexed to the declaration;[11] that it was unclear the extent to which there was any substantive controversy about the nature and content of the documents, or the practical or legal significance of any controversy;[12] and that the plaintiffs' documents were premised on the assumption that the transfer would be to Citic Pacific Mining Management Pty Ltd (CPMM), a company appointed by the plaintiffs to manage the daytoday operations of the Sino Iron project, and not to the plaintiffs themselves.[13]
17 Notwithstanding the reference to providing the parties with liberty to apply, no liberty to apply was specified in the orders that were made the following day.
18 An affidavit of Marshall Timothy McKenna sworn 31 March 2015 deposes to correspondence by letter and email between CPMM or its solicitors to the defendant or its solicitors concerning the application for transfer of the status as proponent the subject of the declaration made by Edelman J. For various reasons, which it is not presently necessary to canvass, the defendant has to date declined to sign the documents necessary to make the application for that transfer.
19 The plaintiffs also relied upon two affidavits of Bruce Noel Watson sworn 20 March 2013 and 21 May 2015. Mr Watson deposes to various problems which, he contends, are faced by CPMM in relation to the efficient and economical operation of the mining operations of the Sino Iron project by reason of the fact that the plaintiffs do not hold the status of proponent under the Ministerial Statements. Those problems include an inability to expand a tailings storage facility, the inability to vary the existing requirement for waste water to be disposed of on site by obtaining a licence to discharge water off site, and an inability to change the way in which CPMM would satisfy certain environmental requirements under Ministerial Statement 635 to mitigate the effects of greenhouse gas emissions.
20 Certain objections to the affidavits of Mr Watson were taken by the defendant. It is not necessary to resolve those objections because, in reaching my conclusion, I have not placed any reliance upon the particular passages in the affidavits to which objection is taken.
21 The defendant read four affidavits for the purpose of the applications. The first is an affidavit of Kris Sjouke Byrne affirmed 14 May 2015. Mr Byrne is a solicitor acting for the defendant. His affidavit annexed the current pleadings of three different actions between the parties to this action (being two actions in this court and one in the Federal Court). Objection was taken to the whole of that affidavit on the basis of relevance. In response, the defendant contended that the existence and nature of other disputes between the parties are relevant to questions of balance of convenience. In my view, the context of this dispute between the parties is informed by the existence and nature of other related litigation, and the issues in that litigation, and Mr Byrne's affidavit is relevant to that context and to the question of whether orders in terms sought by the plaintiffs should be made.
22 The second affidavit relied upon by the defendant is an affidavit of Paul Edwin Robinson affirmed 15 May 2015. Mr Robinson's evidence was directed to responding to the three areas of difficulty to which Mr Watson deposed. He also addressed potential difficulties for the defendant in the event that the status of proponent under Ministerial Statement 635 is transferred to the plaintiffs. A number of objections were taken to Mr Robinson's affidavit. I would uphold the objections to [45], [46] and [55] on the basis that they are matters of submission rather than evidence and to [49], [56], [57] and [58] on the basis that they amount to expressions of opinion for which no adequate basis is disclosed. I would otherwise reject the objections to Mr Robinson's affidavit for the reasons contained in the defendant's response to objections dated 29 May 2015 in relation to each of the paragraphs objected to.
23 The third affidavit relied upon by the defendant is the affidavit of Michael John Dunham sworn 22 May 2015. In that affidavit, Mr Dunham, who is inhouse counsel for the defendant, produced a minute of proposed amended pleading filed by the defendant in another action in this court, CIV 1808 of 2013. The plaintiffs in this action are the first and second defendants in CIV 1808 of 2013. Objection was taken to [5] to [9] of that affidavit, which comprised the substantive portion of the affidavit, on the same basis as the objections were taken to Mr Byrne's affidavit. For the same reasons as I rejected the objection in Mr Byrne's affidavit, I would not uphold the objections to Mr Dunham's affidavit.
24 The final affidavit relied upon by the defendants is an affidavit of Dominic Vincent Martino sworn 15 May 2015. Mr Martino is the Independent Chairman of Australasian Resources Limited (ARH). ARH and the defendant are each 50% shareholders in International Minerals Pty Ltd which, together with the defendant, is a proponent of an iron ore project known as the Balmoral South Iron Ore Project. Mr Martino annexed an affidavit, which he had sworn in proceedings in the Federal Court involving the parties to this action, that explained the relationship of the Balmoral South Iron Ore Project to the Sino Iron Project. Objections were taken by the plaintiffs to a number of paragraphs of Mr Martino's affidavit. Those objections related to questions of relevance or impermissible expressions of opinion. I would dismiss the objections as to relevance on the basis that the matters deposed to in the affidavit are relevant to questions of balance of convenience should they arise, but also to considerations as to whether the making of the mandatory order sought is appropriate having regard to the way in which the action proceeded to trial and judgment and the issues which are likely to arise for consideration in relation to any mandatory order. I also reject the objections of an inadequate basis for opinions expressed in [8], [13] and [14]. The basis of Mr Martino's observations can be found in the Federal Court affidavit (DVM3 to Mr Martino's affidavit). That is not the case in relation to an opinion expressed at [17] but I consider Mr Martino is able to speak of the importance of port access to the Balmoral South Iron Ore Project, given his involvement over a long period of time with the development of that proposal.
25 As noted above, the defendant accepts that the court has power to make supplementary orders in appropriate cases and that, for that purpose, there is often at least implied liberty to apply when a final declaratory judgment is given.[14] It submits, however, that what is sought by the plaintiffs in its summons are not supplementary orders, but rather orders for specific performance or in the nature of a mandatory injunction, and that it is not appropriate for such an order to be made in the context of this case.[15] That is a submission with which I agree.
26 The plaintiffs argue that the orders should not be classified as specific performance or a 'mandatory injunction', but are rather merely orders designed to give effect to the declaratory order made.[16] However one describes the order sought, its substance and effect is to compel the defendant to perform what the court has determined to be its obligation arising as a result of the proper construction of the relevant contractual provision.
27 It would have been open to the plaintiffs in the original proceedings, to seek specific performance of the contractual obligation which it asserted or a mandatory injunction in addition to the declaration as to the proper construction of the agreement. Had it done so, a number of issues may have arisen on the pleadings in relation to those claims for relief. As Edelman J recognised, one issue would have been whether there was implied into the agreement a requirement to comply with the contractual obligation within a reasonable time, and if so what a reasonable time might have been.[17] That is a matter upon which evidence may be required. A second issue that may have arisen is whether the plaintiffs are ready, willing and able to perform their obligations under the relevant contracts. It is to that point that the evidence relating to other litigation between these parties concerning the same or related agreements is directed. It is not difficult to imagine that, had the plaintiffs pursued specific performance or a mandatory injunction in the original proceedings, questions of the plaintiffs' own compliance with its contractual obligations, as reflected in other litigation, may have been raised by way of defence. In other litigation currently in progress between these parties, there are issues as to whether the contract the subject of the declaration even remains on foot. It is highly likely that, had these proceedings included a claim for specific performance, or a mandatory injunction, a defence would have pleaded that issue. In short, the proceedings at first instance could, most likely, have been far more complicated than they were, and involved far more evidence than was required, or indeed relevant, to the single question of construction.
28 In relation to an application for a mandatory injunction, questions of balance of convenience would arise. The evidence of Mr Watson as to difficulties arising from the defendant's failure to apply for a transfer are clearly relevant to that issue. The significance of those difficulties is challenged in Mr Robinson's affidavit. Resolution of evidentiary issues is not appropriate in the context of an application for mere supplementary orders. The issue of balance of convenience gives rise to questions of potential adverse effects on third parties such as ARH. Having regard to what is said to be an interrelationship between the Sino Iron Project and other proposed projects within the area covered by the State Agreement, the question of the balance of convenience may give rise to questions of public policy which affect discretionary considerations applicable to a mandatory injunction.
29 In my view, the orders now sought give rise to the difficulty identified by Edelman J in his February reasons, namely that the orders seek to convert a declaration, which was sought at trial, into a mandatory injunction which was not.
30 In Royal Insurance Company Limited v Mylius,[18] Isaacs J said that every order for declaration carries with it liberty to apply and that if a defendant acts contrary to the court declaration, the court may, on proper application, enforce it. However, as Young CJ Eq observed in Radmanovich v Nedeljkovic:[19]
Liberty to apply does not enable a judge after a final order to completely review it. It is said over and over again in the cases, unfortunately in rather obscure language, that the court's power is limited under liberty to apply to the working out of the order that has been made. The court cannot under liberty to apply adjudicate on any question which it was not necessary to determine at the time of making the final decision, nor can it make any declaratory order, nor, I would have thought, an institutive order. There is no doubt at all that it can make executive orders, that is an order by way of remedy, or an order such as the appointment of a new trustee, or additional orders. This appears from cases such as Poisson and Woods v Robertson and Turvey (1902) 50 WR 260; Dowdle v Hillier (1949) 66 WN (NSW) 155 and Cristel v Cristel [1951] 2 KB 725.
31 Here, the question of enforcement of the contractual obligation the subject of the declaration necessarily carries with it questions which were not before Edelman J and which his Honour was not required to determine. In the circumstances, it is not appropriate to, in effect, reopen the trial in order to resolve those questions.
32 The application for supplementary orders should be dismissed. If the plaintiffs are to obtain orders of the type sought in their application, it is necessary for fresh proceedings to be commenced. That would enable all of the issues surrounding enforcement of the plaintiffs' declared contractual rights to be suitably identified and crystallised through proper pleadings. Whilst it might be thought that that burden on the plaintiffs is regrettable, it is the result of the election which the plaintiffs made not to seek executory orders in the original proceedings.
CITATION : SINO IRON PTY LTD -v- MINERALOGY PTY LTD [No 3] [2015] WASC 272 (S)
Costs - Whether conduct of successful party invited litigation - Indemnity costs - Special costs orders - Turns on own facts
1 CHANEY J: On 30 July 2015 I delivered reasons for dismissing an application by the plaintiffs for a supplementary order in relation to the declaration made by Edelman J on 6 February 2015: see Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 3] [2015] WASC 272. On 12 August 2015 I gave directions for the parties to file written submissions on the question of costs of the application for supplementary orders and directed that that question be determined on the papers.
2 The defendant seeks orders that the plaintiffs pay its costs of the plaintiffs' chamber summons for supplementary orders, and of the defendant's chamber summons seeking suspension of any supplementary orders that might be made, those costs to be taxed on an indemnity basis and paid forthwith.
3 Alternatively, the defendant seeks special costs orders in relation to those applications.
4 The plaintiffs oppose the orders sought by the defendant. They submit that no order should be made as to costs.
5 The plaintiffs refer to O 66 r 1(2) of the Rules of the Supreme Court 1971 (WA) which provides that:
If the Court is of the opinion that the conduct of a party either before or after the commencement of the litigation ... has resulted in costs being unnecessarily or unreasonably incurred it may deprive that party of costs wholly or in part, and may further order him to pay the costs of an unsuccessful party either wholly or in part.
6 Reference is also made to the observation by McHugh J in Oshlack v Richmond River Council [1993] HCA 11; (1998) 193 CLR 72 to the effect that a court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation [69]. The disentitling conduct relied upon by the plaintiffs is said to be the defendant's failure to make application to transfer the status of proponent in accordance with the contractual obligation declared by Edelman J.
7 It was not necessary for me, in determining the application for supplementary orders, to make any findings as to the merits or otherwise of Mineralogy's reasons for not transferring the status of proponent following the making of Edelman J's declaration. The application for supplementary orders stood or fell on the basis of the history of this litigation and the matters which were in issue for the purpose of the substantive matter. Whether or not the defendant is justified in failing to transfer the status of proponent is not a matter which falls for determination in these proceedings, for the reasons explained in Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 3]. The plaintiff was unsuccessful in its application for supplementary orders, and there is no reason why the costs should not follow the event in the usual way.
8 I also consider that the plaintiffs should pay the defendant's costs of the defendant's chamber summons for suspension orders filed on 18 May 2015. That chamber summons was filed as a defensive response to the application for supplementary orders, but it was unnecessary to deal with it having regard to the conclusion I reached in relation to the application for supplementary orders. It was dealt with as part of the whole controversy, in respect of which the plaintiffs were unsuccessful.
9 The defendant contends that the plaintiffs were unreasonable in pursuing the supplementary orders, when they had sought only a declaration at the trial of the substantive matter, and when Edelman J had declined to make orders of the type sought as supplementary orders (see Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2014] WASC 444 (S) [19]).
10 I do not accept that submission. There was no dispute, when the matter came before me, as to the court's power to make supplementary orders. The issue for determination was whether, in the circumstances, supplementary orders should be made. My conclusion was that, in the circumstances of the particular matter, supplementary orders should not be made.
11 Against the background of the defendant's failure to transfer the status of proponent, and the reasons it had expressed for not doing so, I do not consider that the plaintiffs attempt to seek to procure compliance by the defendant with its declared contractual obligation through the mechanism of supplementary orders can be said to be unreasonable. No order for indemnity costs should be made.
12 In its outline of submissions, the defendant asserted that, if indemnity costs were not allowed, then special costs orders are appropriate. Its submission in support of that proposition was that the issues raised by the application were complex such that two counsel were required by each party. On that basis it is contended that scale rates and allowances would be inadequate.
13 In Wainwright v Barrick Gold of Australia Ltd [2014] WASCA 15 (S) [7] - [9], the Court of Appeal outlined the statutory framework and principles to be applied in relation to special costs orders. After referring to the broad general discretion as to costs conferred on the court by s 37(1) of the Supreme Court Act 1935 (WA) and O 66 r 1(1) of the Rules of the Supreme Court 1971 (WA), and the provisions of the Legal Profession Act 2008 (WA) relating to costs determinations, the court noted the provisions of s 280(2) of the Legal Profession Act which provides:
(2) Despite subsection (1), if a court or judicial officer is of the opinion that the amount of costs allowable in respect of a matter under a costs determination is inadequate because of the unusual difficulty, complexity or importance of the matter, the court or officer may do all or any of the following -
(a) order the payment of costs above those fixed by the determination;
(b) fix higher limits of costs than those fixed in the determination;
(c) remove limits on costs fixed in the determination;
(d) make any order or give any direction for the purposes of enabling costs above those in the determination to be ordered or assessed.
'The section requires that before making an order pursuant to its terms the court must form an opinion which has two components. First, the court must determine that the amount of costs allowable in respect of a matter under a legal costs determination is inadequate. Second, the court must conclude that the inadequacy arises because of the 'unusual difficulty, complexity or importance of the matter' (Heartlink Ltd v Jones as Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) [11]). Having heard the matter and being familiar with the way in which the case was conducted and the issues which were litigated, the court is in a position to form the opinions required under the section as matters of impression rather than science or mathematics: EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2008] WASC 275 (S) [7]; Verdell Pty Ltd v F & G Nominees Pty Ltd [2002] WASC 58 (S2) [14].'
The relevant principles to be applied in resolving this question are not contentious. Special costs orders can be made either pursuant to s 280(2) of the Legal Profession Act 2008 (WA), or pursuant to s 37(1) of the Supreme Court Act 1935 (WA). In either case, before the power will be exercised, the court must form the view that the maximum amount allowable under the relevant scale item is inadequate in the sense that there is a fairly arguable case that the bill to be presented to the taxing officer may properly tax at an amount which is greater than the limit which would be imposed by the relevant costs determination (see Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) [11]). If that threshold is crossed, under s 280(2) other questions arise for determination. However, until that threshold is crossed, the power will not ordinarily be exercised.
Issues of the kind which arise when special costs orders are sought are addressed as matters of impression, rather than as matters of detailed evaluation, precision or science [14] - [15].
15 I am not satisfied that either of the two components necessary before a special costs order could be made is established. All that is said by the defendant is that two counsel were required by each party. No foundation for that assertion is put forward. In any event, the relevant item of the Supreme Court Scale of Costs 2014, Item 10, provides for an allowance of two days' preparation and one day of hearing for counsel. The hearing of this matter lasted approximately one and half hours. The defendant has not established that the scale of costs is inadequate.
16 Nor do I consider that any inadequacy of the scale arises because of the 'unusual difficulty, complexity or importance of the matter'. Although an application for supplementary orders may be relatively unusual, the issues which were agitated in the application were not, in my view, of unusual difficulty, complexity or importance.
18 For the foregoing reasons, there should be an order that the plaintiffs pay the defendant's costs of:
(a) the plaintiffs' chamber summons for supplementary orders filed 31 March 2015; and
(b) the defendant's chamber summons for suspension orders filed 18 May 2015
[1] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2014] WASC 444.
[2] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2014] WASC 444 (S).
[4] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2014] WASC 444 [247].
[5] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2014] WASC 444 [249] [251].
[6] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2014] WASC 444 [252].
[7] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2014] WASC 444 (S) [6].
[8] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2014] WASC 444 (S) [19].
[9] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2014] WASC 444 (S) [19].
[10] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2014] WASC 444 (S) [21].
[11] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2014] WASC 444 (S) [22].
[12] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2014] WASC 444 (S) [24].
[13] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2014] WASC 444 (S) [26].
[14] Defendant's outline of submissions dated 25 May 2015 [16]; ts 319 (28 May 2015).
[15] Defendant's outline of submissions dated 25 May 2015 [1]; ts 320 (28 May 2015).
[16] ts 305, 313 (28 May 2015); 307 (29 May 2015).
[17] Sino Pty Ltd v Mineralogy Pty Ltd [No 2] [2014] WASC 444 (S) [19].
[18] Royal Insurance Company Limited v Mylius [1926] HCA 49; (1926) 38 CLR 477, 497.
[19] Radmanovich v Nedeljkovic [2002] NSWSC 212 [8].
(1998) 193 CLR 72
(1926) 38 CLR 477