SINO IRON PTY LTD -v- MINERALOGY PTY LTD [No 7] [2025] WASC 103 (1 April 2025)

1. The evidence adduced by the parties on the Inspection Application is narrow in compass.
2. In the John Affidavit, evidence has been led to identify the aspects of the Project which would be the subject of the inspection, the logistical arrangements proposed, and the costs of the inspection. The plaintiffs have indicated they will bear the costs of the travel and other logistics associated with the proposed inspection.[6]
3. Mr John deposes that the proposed inspection would cover the locations of 'existing constrained facilities and infrastructure' and the 'areas identified in the...2023 MCPs for the new and extended facilities and infrastructure'.[7] This would include the following:

(a) the mine pit;

(b) the south-east, west and north-east waste rock dumps;

(c) the Stage 2 tailings storage facility;

(d) the sites proposed for the east and south-west waste rock dumps and northern tailings storage facility; and

(e) lastly, the Fortescue River Road.[8]

1. It is proposed by the plaintiffs that several representatives of the parties, an associate from the Court and I, would travel to the site by charter jet. The flight takes around 2 hours. The entourage, consisting of around 12 persons, would leave Perth at 8.00am, spend between 11.00am and 3.45pm at the Project viewing nine specific locations, which would include a break for lunch, and then return to Perth at around 8.00pm. Mr John has attached to his affidavit a detailed itinerary for this purpose.[9] The itinerary has been cross-referenced to a map of the site.[10]
2. In her affidavit in opposition, Ms Robinson attaches correspondence exchanged between the parties. That correspondence, in summary, indicates that no specific date has been identified by the plaintiffs for the inspection, other than that it would occur pre-trial, that the plaintiffs propose no modifications to the trial timetable to accommodate the inspection, and that the plaintiffs have not proposed to afford the first defendant's representatives an opportunity to visit the project before the proposed inspection by the Court.[11]

1. The plaintiffs submit that the characteristics of the facilities which are to be inspected and the degree of constraint (being a critical aspect of the plaintiffs' case, which the first defendant denies) will be a focus of the evidence at the forthcoming trial. It is asserted that an inspection would assist the Court in gaining a full comprehension of this evidence and a proper sense of spatial awareness of the evidence and the physical connections between locations on the site.
2. Further, it is submitted that a practical understanding of the mine pit, the TSF and the waste rock landforms, and the constraints affecting each of those facilities, will allow the Court to better comprehend the submissions regarding the works which are proposed in the 2023 MCPs.
3. The plaintiffs say the proposed mine site, being a magnetite ore mining operation, is distinctly different from other mine sites in the region which mine haematite ore.
4. The plaintiffs point to the difficulties associated with accurately comprehending large-scale, complex, three-dimensional landforms and infrastructure by viewing only two-dimensional photographs and diagrams (or even drone footage). This 'comprehension gap' is particularly acute in the case of the constrained mine pit at the Sino Iron Project, according to the plaintiffs. It is submitted that the effects of constraint can only be fully understood by visiting the pit floor.
5. The first defendant was pessimistic about the asserted benefits of an inspection and, in several respects, confident about their absence.
6. The first defendant submits, in essence, that the CITIC Parties have not demonstrated that the Court would be 'sufficiently assisted' by the proposed inspection and that discretionary considerations, particularly those relating to the timing of the application, adverse impacts upon trial preparation, particularly for Mineralogy, the lack of provision for Mineralogy to conduct an inspection beforehand and the unsuitability of the aircraft favour, refusal of the application.
7. As to the asserted utility of the inspection, Mineralogy's counsel emphasised that the central case on the pleadings is largely one involving arithmetic, based on matters such as tonnage and volume, such that an inspection would not materially assist in the determination of those issues. Further, the first defendant submits the Court does not require an inspection to sufficiently understand the size and scale of the Project, and diagrams, photographs and video footage provide ample (and, indeed it is said, superior) assistance to the Court.
8. Before I turn to my assessment of the Inspection Application, I should briefly summarise two of the prior inspection applications which have been made in relation to the Project, both of which were referred to in the parties' submissions.

1. In prior litigation between these parties, there have been three applications made to a Court to inspect the location of the Project. All of those applications were made by the CITIC Parties and all were opposed by Mineralogy.
2. The first such application was made to Edelman J in 2015 as a Judge of the Federal Court (as his Honour then was),[12] and two were made to Kenneth Martin J in this Court in the RCB Proceeding in 2017[13] and in the 2017 MCP Proceeding in 2022.[14] I will address the first and last of these applications.

1. Ahead of a trial due to commence on 2 June 2015, the CITIC Parties made an inspection application in proceedings in the Federal Court between Mineralogy and the CITIC Parties.[15] Those proceedings concerned the control, possession and ownership of the port terminal facilities at the Port of Cape Preston.
2. Edelman J granted the application and undertook the inspection on the third day of trial. In granting the application, Edelman J formed the view that an inspection would assist his understanding of the photograph and documentary exhibits.[16] His Honour identified two particular examples in that case, being the dispute about spare capacity of the barge loader, as to which his Honour considered there would be a likely considerable advantage in seeing the barge loader in situation rather than hearing abstract evidence about it, and the dispute concerning whether facilities had been constructed.[17]
3. In his final reasons for decision following trial, Edelman J observed that the on-site viewing of this integrated mining project did in fact assist his Honour in fully understanding the nature and scope of the mining operations.[18]
4. Although the inspection application in that case was made under Rule 14.03 of the Federal Court Rules 2011 (Cth) and pursuant to s 53 and s 54 of the Evidence Act 1995 (Cth), such that the inspection by a Judge may be taken as part of the evidence in the proceedings, Edelman J approached the matter on the basis the inspection was not evidence, and additionally declined to permit further evidence to be led during the inspection.[19]

1. In the predecessor litigation to the present action, the 2017 MCP Proceeding, the CITIC Parties made an application for his Honour to inspect the Project location. The application was argued on day seven of the trial. At that point, his Honour felt he held a reasonably comfortable understanding of the geographic orientation of the site, having heard counsel for the plaintiffs open the case over several days.
2. There are many similarities, but also differences, between the issues arising in the current action and the issues which confronted his Honour in the 2017 MCP Proceeding.[20]
3. His Honour emphasised the question was one of the degree of utility and assistance to the Court of the proposed orientation exercise, in the context of the trial issues.[21]
4. Ultimately, his Honour declined the application, as he had also done in the RCB Proceeding. His Honour regarded as highly persuasive the fact the trial issues concerning the delineation of tenements and issues over proposed expansions into other tenements held by Mineralogy would not be assisted by an inspection as the tenements are not visibly marked on the ground.[22] The photographic and documentary evidence available to the Court was probably sufficient, his Honour held, to assist in the determination of the issues at trial.
5. His Honour, as I have noted above, also came to consider this inspection application after several days of opening address, which had provided his Honour with explanations of the mining and processing aspects of the Project, and the allied geographical orientation of the site.[23]
6. His Honour also expressed a concern with the trial in that matter falling behind the timetable (and the inspection of the Project might further contribute to that delay). His Honour also noted the need to assess any travel proposal having regard to then extant COVID-19 infection concerns still present in the State.[24]

1. In considering the Inspection Application, there are some preliminary matters I should first address.
2. First, neither party suggested the earlier interlocutory assessments by Edelman J and Kenneth Martin J of similar applications were determinative of the present Inspection Application in any respect. I understood the parties referred to those earlier decisions by way of context only. As can be seen from the above summaries of the decisions, the issues in those proceedings and/or the surrounding context in which the applications came to be heard have real differences to the present circumstances.
3. Second, consistent with the common law position, it is not proposed by the plaintiffs that the Court would take any evidence at the view. Rather, the Court would have the opportunity to inspect aspects of the Project that are described in the lay and expert evidence delivered by the parties and, in some cases, are depicted in photographs or diagrams.
4. Third, it is not proposed by the plaintiffs that any party would be permitted to use the inspection as an opportunity to make submissions to the Court. That is not the intended purpose. Nonetheless, as I indicated at the hearing, an inspection of a mine site of this size may well require the parties to be in a position to respond to factual queries from the Court confined to the identity or description of particular locations or objects which are being viewed by the Court. This would avoid any risk that the identification of the locations or objects is misunderstood by the Court.
5. Fourth, the decision as to whether an inspection should be ordered is not a matter of personal preference. In this regard, I agree with the observations of Kenneth Martin J to this effect in his decision in the 2023 MCP Proceeding.[25]
6. Fifth, whilst the issue is not a matter of personal preference, the particular experience which a Judge possesses may be relevant to whether he or she ultimately concludes that they would be assisted by an inspection. For example, for my part, I have personal experience of viewing large-scale iron ore mines in this State during my professional career as a litigation solicitor. However, while I recognise this point, in the present case, I do not consider that this personal experience weighs against the Inspection Application. I say this because:

(a) the issues in the litigation will turn on the specifics of this operation and the proposals advanced by the plaintiffs for its further development;

(b) I have never visited this particular Project; and

(c) there are differences between all mine sites and, indeed, the plaintiffs caution me that there are differences between this particular mine and haematite mining operations.

1. Ultimately, the determination of this Inspection Application requires a focus on the degree of utility and assistance the proposed orientation exercise would provide to the Court, in the context of the trial issues.
2. Turning then to the substance of the matter, I consider that an inspection of the Project, and the particular facilities and aspects of that integrated project which have been highlighted by the plaintiffs in their submissions, would be of considerable assistance to the Court, in the context of the issues arising in this action. The central case is not solely an arithmetic one, contrary to the submission of the first defendant. The case, even what might be described as the central case, is much broader than that and requires an understanding of the several aspects of the Project identified in the parties' pleadings.
3. It must be remembered in this regard that the inspection is not intended to replace the evidence to be adduced by the parties which will show the layout and physical aspects of the Project, as well as the mining proposals advanced by the plaintiffs. This evidence will include diagrams, photographs, maps and videos. The diagrams and other evidentiary materials will provide the Court with specific evidence as to the location of matters on the site, and the structure and size of the mine pit, the TSF and the WRD, among other things. The inspection must be seen as complementing that evidence, to allow the Court to better understand and comprehend it.
4. During the hearing of the Inspection Application, senior counsel for the plaintiffs sketched an analogy between the inspection of the large iron ore mine which is the subject of the present dispute, and an inspection of the Sydney Opera House. Counsel explained that any person could gain an understanding of the Opera House from documentary photos, plans and reports of the buildings and its rooms, but that understanding would reach an entirely new level if the same person visited the Opera House and was shown inside. Iron ore mines and the Opera House may be worlds apart but the analogy has some force, in my view.
5. The findings the Court will need to make concerning the detailed evidence which I expect will be adduced at the trial will naturally be critical to the determination of the plaintiffs' claims, in respect of a dispute which is undoubtedly of considerable importance to both parties, and which one might reasonably expect to be the subject of further appellate review, given the Court's past experiences of the disputes between these parties. It is therefore plainly important that the Court at first instance be in the best position to fully comprehend the large volume of evidence which is to be led by the parties in this case.
6. The aspects of the Project which, without limitation, would likely benefit from a personal inspection are detailed in Attachment A to these reasons, insofar as the mine pit, TSF and WRDs are concerned. It is apparent from the proposed itinerary that the plaintiffs have given careful thought to aspects of the Project to be viewed and the logistics associated with the visit.
7. I consider that acceding to this application is likely to enable me, as the trier of fact, to fully observe and understand the physical characteristics of the location and to better contextualise the printed, written, photographic and video material which it is anticipated will be adduced in evidence at trial. Indeed, considerations of that nature led Edelman J to accede to an inspection of this very site, as I have explained above at [26] and [27].
8. I should mention two particular concerns raised by the first defendant in opposition. The first defendant raised a specific concern as to the type of aircraft to be used, being a jet, which may detract from the ability of the Court to undertake a proper inspection from the air. I consider this point is of limited weight in the overall analysis.
9. The proposal that the Court view the site from the air represents a small part of the inspection and I did not discern it as being particularly crucial from the plaintiffs' perspective. At best, the view from the air may provide a broad brush overall perspective of the Project, but the intended benefits from the inspection rest more heavily on the ground-based inspection which is proposed, which will also include views being taken from high locations which I gather will offer a perspective of the site or parts of the site.
10. The lack of any recent opportunity for Mineralogy's representatives to attend on site to undertake a pre-trial inspection of the Project was another of the matters raised by senior counsel for Mineralogy. It is a sound concern to raise. But it seems to me this point can be sufficiently accommodated by allowing the Mineralogy representatives to contribute to the itinerary to add additional stops which they may assess to be of significance and utility to the Court. Building in such a process will help to reduce any prejudice or unfairness to the first defendant.

1. The fact an on-site inspection would be of considerable assistance to the Court having regard to the issues arising in the action is a necessary, but not a sufficient, condition to grant an application to inspect.
2. In order for the Court to accede to such an application, the Court must have regard to all the prevailing circumstances of the litigation. This will include case management considerations such as the timing of the inspection relative to trial, the asserted lateness of the application, the presently timetabled pre-trial steps, the reasonably anticipated pre-trial steps, and the costs and resources which will be incurred or deployed if an inspection is ordered.
3. The resources include not only the time of the legal teams and the Judge, but the opportunity cost associated with the inspection process. An inspection undertaken during the trial will reduce the available trial time, although this may be accommodated by adjustments to the trial dates.
4. These additional considerations may not weigh heavily in the analysis where the inspection location is physically proximate to the location of the Court and will not absorb a significant amount of time. In the present matter, acceding to the Inspection Application will require a significant investment of time, resources, and costs of the parties and the Court in order to travel to the Project, effectively consuming a full day of the trial (if the inspection is to be undertaken during the trial itself).
5. One factor of which I am acutely conscious in this matter, and which I give significant weight, is the close proximity of trial as well as the propensity of these parties to engage in interlocutory disputation which may further reduce the available time in the lead up to trial and, indeed, at trial. This last point is, I should emphasise, not a pointed criticism of anyone but an indication of the brutal reality that the case management of this action has absorbed a considerable level of judicial resources over the past 16 months and that engagement shows no sign of relenting, as is apparent from the recent application filed by the first defendant seeking leave to amend its defence and add a counterclaim. The trial programme is already 'crowded', as senior counsel for the CITIC Parties accepted.
6. The legal representatives of all parties require adequate time to prepare for trial. The Court and my associates require adequate time to prepare for trial. The imposition of an inspection process will be an additional burden to the parties (although the plaintiffs are obviously prepared to embrace that burden given its asserted benefits), to their legal representatives and importantly, to the Court, which weighs heavily against a positive exercise of the discretion to accede to the plaintiffs' application
7. I also recognise that, if an inspection is not undertaken, to the extent to which there remained difficulties in fully appreciating the size, complexity, spatial distances and other aspects of the facilities and the Project, I could take steps as the trier of fact to be appropriately vigilant to ensure that I seek clarification from the parties and invite, where appropriate, the provision of aides-memoire by the parties as a suitable alternative to a physical inspection.
8. I have weighed up these considerations, and the other points raised by Mineralogy, relative to my assessment that a physical inspection of the Project would likely produce benefits for the Court's ability to more readily assess and comprehend the physical characteristics of the location and to better contextualise the printed, written, photographic and video material which it is anticipated will be adduced. On balance, I consider the advantages which are likely to be derived by the Court through this process justify, and outweigh, the time, costs, resources and distractions associated with the process.
9. It should be recalled at this point that the trial of this action promises to involve the tendering of a large amount of evidence about the structure of the Project, the location of components of the mining operations, the asserted constraints on the Project, and the relative location of the key aspects of the proposals which form the 2023 MCPs. The comprehension of all this material by the Court is a fundamental feature of this case. Any steps in the trial process which will potentially enhance that comprehension should be given close and careful assessment.
10. Having undertaken that assessment, while I cannot be conclusive about the degree or measure of benefits likely to be generated by this process, I am comfortable there is a reasonable likelihood of those benefits accruing and that, in the end, leads me to conclude that the Inspection Application should be allowed.

1. For the foregoing reasons, I granted the orders sought by the Inspection Application at the conclusion of the hearing yesterday morning, with three modifications, namely:

(a) to have the inspection occur during the trial, once the parties have sufficiently opened their cases to put the physical aspects of the Project into context for the Court;

(b) to ensure that at least one counsel from the plaintiffs and from the first defendant are present at all times during the inspection; and

(c) to facilitate an opportunity for the first defendant to propose additional stops to be included in the itinerary, with the final itinerary to be ordered by the Court prior to the trial commencing.

1. That leaves me to address the costs issues.
2. As to the costs associated with the inspection itself, the plaintiffs have agreed to bear those costs.
3. As to the costs of the Inspection Application, the view I took was that costs should be in the cause. Although the plaintiffs were successful on the application, which was opposed by Mineralogy, the nature of the application was such that it did not readily lend itself to assessing costs on the basis of the 'event', but rather the costs of the application should properly be seen as part of the overall costs of the litigation process.

An inspection of the Mine Pit of the Sino Iron Project taken from the mine pit lookout and from the mine pit floor.

1. Comprehension of the diagrams and screenshots of parts of the mine pit that are included in the Goodwin Statement filed by the CITIC Parties, in order to convey the size, depth and detail of the mine pit in two dimensions.

1. Comprehension of the shape of the current mine pit, including the asserted demarcation and interconnection between its two parts, being the Approved East Pit and the Approved West Pit.

1. Comprehension of the development of the mine pit, including the removal of waste and ore in stages.

1. Understanding of the asserted difficulties associated with simultaneously operating mining equipment in an increasingly narrow mine pit.

1. Understanding of the asserted need for dewatering, including the water ingress into the mine pit that may be difficult to comprehend from the screenshots provided.

1. Comprehension of the expansion of the mine pit footprint that is proposed by the 2023 MCPs.

An inspection of the Tailings Storage Facility of the Sino Iron Project taken from the existing Stage 2 TSF and from the proposed location for the TSF extension.

1. Comprehension of the screenshots of parts of the Stage 2 TSF which are included in the Goodwin Statement, but which are unable to depict the entirety of the facility because of its size.

1. Comprehension of the photographs of parts of the Stage 2 TSF taken by the plaintiffs' experts during his visit to the Project.

1. Comprehension of the distances required to haul waste rock from the mine pit to construct the Stage 2 TSF embankments.

1. An understanding of the current height of the Stage 2 TSF embankments and the evidence regarding the different methods by which it is asserted the TSF embankments can be raised.

1. Comprehension of the asserted close proximity of the northern embankment of the Stage 2 TSF to the lease boundary between G08/53, M08/264 and M08/265, resulting in the so-called 'pinch point' shown the Goodwin Statement.

An inspection of the Waste Rock Dumps of the Sino Iron Project taken from the south-west WRD area, the north-east WRD area and the eastern lookout point.

1. Comprehension of the diagrams and screenshots of the WRDs which are included in the Goodwin Statement.

1. Comprehension of the three existing primary WRDs, being the North-East WRD, the South-East WRD and the West WRD.

1. An understanding of the location of the proposed extensions to the North-East WRD and the two new WRDs (being a South-West WRD and an East WRD) proposed by the 2023 MCPs.

1. An understanding of the proximity of the West WRD to the western lease boundary.

1. Comprehension of the distance between the mine face and the WRDs, including the haul routes for waste rock as shown in Figures 29, 30 and 31 of the Williams Report.

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

[1] I will generally use the definitions employed in previous interlocutory decisions of the Court in this action.

[2] Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521 [193] (Heydon J).

[3] Scott v The President, Councillors and Ratepayers of the Shire of Numurkah [1954] HCA 14; (1954) 91 CLR 300, 313 (Dixon CJ, Webb, Kitto and Taylor JJ) (Shire of Numurkah), citing London General Omnibus Company Ltd v Lavell [1900] UKLawRpCh 195; [1901] 1 Ch 135, 139 (Lord Alverstone CJ).

[4] Shire of Numurkah (313) (Dixon CJ, Webb, Kitto and Taylor JJ); Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 10] [2022] WASC 472 [27] (Kenneth Martin J).

[5] Shire of Nurmurkah (311 - 313) (Dixon CJ, Webb, Kitto and Taylor JJ).

[9] John Affidavit [5] and [6], Attachment DJW-1.

[11] Robinson Affidavit, Attachment TLR-1 and Attachment TLR-2.

[12] Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 2) [2015] FCA 429 (Edelman J).

[13] Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 16] [2017] WASC 340 (Kenneth Martin J).

[14] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 10] [2022] WASC 472 (Kenneth Martin J).

[15] Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 2) [2015] FCA 429 (Edelman J).

[16] Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 2) [14] - [16] (Edelman J).

[17] Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 2) [18] (Edelman J).

[18] Mineralogy v Sino Iron (No 6) [2015] FCA 825; (2015) 329 ALR 1 [312] (Edelman J).

[19] Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 2) [10] - [12] (Edelman J).

[20] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 10] [2022] WASC 472 [6] - [17], [21] (Kenneth Martin J).

[21] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 10] [2022] WASC 472 [32] (Kenneth Martin J).

[22] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 10] [2022] WASC 472 [35] - [36]. (Kenneth Martin J).

[23] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 10] [2022] WASC 472 [38] (Kenneth Martin J).

[24] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 10] [2022] WASC 472 [44] - [47] (Kenneth Martin J).

[25] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 10] [2022] WASC 472 [50] (Kenneth Martin J).