SINO IRON PTY LTD -v- MINERALOGY PTY LTD [No 8] [2025] WASC 105 (4 April 2025)

B. Materials relevant to the Discovery Application

1. The Discovery Application was supported by the affidavit of Tracey Lyn Robinson sworn 21 March 2025 (Robinson Affidavit). In addition, senior counsel for Mineralogy drew my attention to several confidential documents which had been discovered by the plaintiffs, which are detailed in the three page index provided to the Court shortly prior to the hearing on 31 March 2025.[5]
2. No responsive affidavit evidence was filed by the plaintiffs. The absence of any such evidence was a feature of this interlocutory dispute emphasised in the course of argument by senior counsel for Mineralogy as bearing in favour of the application.
3. Both parties filed detailed submissions and I also received a skeleton of oral argument from the first defendant on 31 March 2025.[6]

1. By way of background to the Discovery Application, I accept the following matters have been established, at least for the purposes of this interlocutory application:

(a) Mr Zeng and Ms Dillon are executives employed by the plaintiffs and are part of the senior management of the plaintiffs.

(b) Mr Zeng has been the chairman and chief executive officer of CITIC Pacific Mining Management Pty Ltd (CPMM) for many years. CPMM is the company which manages and operates the Sino Iron Project on behalf of the plaintiffs on a day to day basis.[7]

(c) In his capacity as the chief executive officer of CPMM, Mr Zeng was the signatory to the detailed covering letter by which the 2023 MCPs were delivered by the plaintiffs to Mineralogy on or about 18 August 2023.

(d) Ms Dillon is the director of a group within the plaintiffs' structure which is called 'Special Projects', which deals with Mineralogy matters. Ms Dillon also attended meetings of the Project Fulcrum Committee in 2011, in 2012 and in 2015, at which the attendees discussed the Mineralogy Expansion Proposal, the plaintiffs' expansion proposal, and the TSF footprint.

(e) The email inboxes of the above executives were not reviewed as part of the process by which discovery was given by the plaintiffs. Indeed, this was common ground on the application.

(f) That is not to say that emails sent by Mr Zeng and Ms Dillon do not appear in the plaintiffs' discovery. Indeed, it is apparent that the document collection process undertaken by the plaintiffs has in fact picked up emails sent by these executives, presumably from the email inboxes of the recipients of emails sent by them. A number of these emails which have been discovered by the plaintiffs are the subject of claims for privilege.[8]

(g) Putting the privileged communications to one side, searches of the plaintiffs' discovery by Mineralogy's solicitor indicate that only a small number of emails sent by Mr Zeng or by Ms Dillon have been discovered by the plaintiffs.[9] The searches reveal that ten emails sent by Mr Zeng have been discovered (eight of which are company circulars) and only fifteen emails sent by Ms Dillon have been discovered (fourteen of which were sent in 2011 and 2022). The plaintiffs' entire discovery runs to around 17,000 documents. Mineralogy submits the small number of such emails is concerning.[10]

1. The Court has a discretionary power to order further and better discovery, whether pursuant to O 26 r 6 RSC, O 26 r 7 RSC, or in the Court's inherent jurisdiction. The applicable principles in this regard are well understood and require no detailed recitation here.
2. In Perpetual Trustees Co Ltd v Burniston,[11] Edelman J sitting as a Judge of this Court (as his Honour then was) identified three requirements which must be satisfied before the discretionary power to order further discovery is engaged, regardless of the power which is relied upon. Those requirements are:

(a) the Court must have reasonable grounds for being fairly certain that the documents sought (or the class of documents sought) are in existence;

(b) those documents sought must be relevant, by reference to the pleadings, the conduct and admissions of the parties, and the nature of the action; and

(c) those documents ought to have been disclosed.

1. The ultimate test is whether discovery is necessary for fairly disposing of the proceedings, with the Court required to focus on the relevance of the subject documents, having regard to case management considerations.[12]
2. As to the requirements identified by Edelman J, only the second was the subject of any detailed argument on this Discovery Application. I accept the first defendant has demonstrated that there are reasonable grounds for being fairly certain the subject documents exist, and that the plaintiffs have possession, custody or power of the email boxes of these executives. The first and third requirement are therefore satisfied. The focus of submissions at the hearing was the question of relevance.

How is relevance to be assessed in the present setting?

1. The manner in which the question of relevance is to be assessed by the Court in the present setting evoked different approaches from the parties.
2. The difference in approach arises, I think, because the essence of the first defendant's request is not that the previously ordered discovery categories should be widened or enlarged, as was the case in the most recent discovery application initiated by Mineralogy seeking production of the Whittle Model documents.[13] In that context, the moving party must naturally demonstrate relevance as part of the application. Senior counsel for the plaintiffs urged a similar approach on the Court for the purposes of determining the current Discovery Application.
3. In the present context, however, the application brought by Mineralogy seeks orders that require the plaintiffs to enlarge the pool of documents which should be reviewed for the purposes of compliance with the existing discovery regime.
4. Senior counsel for Mineralogy thus forcefully submitted that it was unnecessary in these circumstances that his client separately demonstrate the relevance of the documents as such. It was submitted that, as the categories had been ordered by the Court and as the plaintiffs had made no application to be discharged from their obligation to provide discovery in accordance with the categories, further analysis of the question of relevance was not required.[14]
5. The submission advanced by Mineralogy is that, having identified a gap in the discovery compliance process on the part of the plaintiffs, being the asserted misconception that the email inboxes of these executives ought be excluded, it should readily follow that the orders in the Discovery Application should be made, subject to any discretionary features which point against that outcome.
6. As to the discretionary or case management issues, no evidence was adduced by the plaintiffs, and nor could it reasonably be inferred, and no submission was made, that the production of documents in the email inboxes of the two executives would be disproportionate or burdensome in any respect. Indeed, it is apparent that the plaintiffs have already discovered documents from the inboxes maintained by other personnel. I can therefore see no discretionary obstacle to that course now being followed by the plaintiffs in relation to these two additional inboxes.
7. But I have leapt ahead a little.
8. Returning to the question of relevance referred to above, I accept the correctness of the approach described by the first defendant. The present application does not seek to enlarge the discovery categories, but rather seeks to address an asserted conceptual error in the discovery process. If the conceptual error is established, I agree the Court should exercise the power it has to require that the discovery be given on the proper basis, and in accordance with the categories already argued and ultimately ordered.
9. The first defendant has in fact moulded its orders by reference to the previously defined categories, rather than to seek an order that a new category of discovery be grafted onto the existing categories. In truth, the first defendant's complaint is that the plaintiffs have incorrectly excluded a pool of documents from the purview of the discovery process. The first defendant in essence requires this gap in the discovery process to be corrected.

Was there a conceptual error in the discovery process?

1. Turning then to the asserted error, the submissions advanced by the first defendant should be accepted, in my respectful view.
2. That is, I consider there is no basis for the plaintiffs' asserted demarcation line between operational constraints and related technical matters, which the plaintiffs say is the focus of these proceedings, and higher level management issues, which the plaintiffs say are outside the scope of the proceedings.
3. Two points need to be made here.
4. First, the plaintiffs' contention as to the demarcation line was underpinned by its analysis of the pleadings. The pleadings do not support the plaintiffs' analysis in my view, and I largely accept the submissions advanced by Mineralogy in this regard. I refer to, for example, the SOC at [46], [49], [64], [65], and [76], and the broad allegations advanced by the plaintiffs that the 2023 MCPs are reasonable.
5. Second, and in any event, the plaintiffs' position rested on the Court accepting that the email inboxes of these executives contain no material concerning operational constraints and related technical matters. That is not an inference I consider must reasonably be drawn merely because of the role or positions occupied by these two executives. To some extent the confidential documents identified by the first defendant point to the contrary and it must also be noted that Mr Zeng was the signatory of the primary letter by which the 2023 MCPs were delivered to the first defendant. Even putting this material to one side, in the absence of evidence from the plaintiffs to the contrary, the inference is rationally open that the inboxes of these executives may contain documents which touch upon the operational constraints and related technical matters. Thus, the contention that these inboxes may justifiably be excluded from any discovery review was not supported on the direct evidence or the inferences to be drawn.
6. Overall, there is simply no bright line in this proceeding, whether by reason of the pleaded cases or to be arrived at by some inference in all the circumstances, which is sufficiently stark to exclude the email inboxes of these senior executives from the pool of documents to be reviewed for the purposes of compliance with the discovery orders.
7. In my view, there was a conceptual error in the discovery process.

1. The first defendants' Discovery Application should therefore be addressed by considering whether the first defendant has satisfied the Court that it is reasonably likely there is documentary material within the email inboxes of Mr Zeng and Ms Dillon which falls within one of the discovery categories ordered by the Court. That is, the discovery categories must be the focus.
2. The categories were ordered by the Court following detailed argument at the hearing on 1 October 2024 as to the issues arising on the pleadings. The categories reflect the documents, or classes of documents, which the Court found to be directly relevant.[15]
3. As part of the detailed orders made, the parties had agreed a limitation that the documents to be discovered would include only those documents identified through 'reasonable and proportionate searches'. The parties further agreed that this phrase meant:[16]

...a search undertaken by a party in which the party makes a good-faith effort to locate discoverable Documents, and which are proportionate to the potential probative value of the Documents in respect of which the searches are being made.

1. In respect of some of the discovery categories, the plaintiffs expressly reserved their position and did not concede the documents within the category were relevant.[17] That reservation does not undermine the approach I have outlined above. I say that because I have identified a conceptual error in the plaintiffs' approach and because there are identifiable aspects of the pleading which justify the categories which were ordered.
2. Assessing the discovery categories in the context of the present Discovery Application, I am satisfied that the Executive Inboxes are reasonably likely to contain documentary material which falls within a discovery category.
3. In particular, the Executive Inboxes are reasonably likely to contain material which responds to Category AB, which extends to documents recording or referring to the consideration by the plaintiffs of the 2023 MCPs, as well as the preparation and submission of those proposal, and any interaction with the State. In this respect, the demarcation in this case, which was asserted by senior counsel for the plaintiffs, between operational constraints, on the one hand, and management issues, on the other, again falls down, in my respectful view. Category AB proscribes a group of documents which travels well beyond the province of operational constraints.
4. Further, the Executive Inboxes are reasonably likely to contain documentary material which respond to Category EA or Category EI, which capture documents recording or referring to the plaintiffs' consideration of the expansion of the mine pit or waste storage capacity for the purposes of the Project, and the consideration of the Mineralogy Expansion Proposal. The consideration of these matters, regarded by the plaintiffs as being of great importance to the continuation of the Project, may reasonably be inferred to be the types of matters which would involve senior management executives.
5. Further still, the Executive Inboxes are reasonably likely to contain documentary material which responds to Category G (which was an agreed category). That category requires discovery of all Documents recording or referring to the risk of suspension and/or slowdown at the mine, and the reasons for such suspension and/or slowdown. Again, given the asserted importance of the 2023 MCPs to the plaintiffs, and the importance of any suspension or slowdown of activities at the Project, matters of this nature may reasonably be inferred to be the types of matters which would involve senior management executives.
6. I am therefore satisfied that there is utility in these orders, to require that a review be initiated of the Executive Inboxes, against the existing discovery categories (not only those I have identified above).

1. For the foregoing reasons, I have concluded that the discovery orders sought by the first defendant should be granted. Specifically, I am satisfied that the first defendant has demonstrated the following:

(a) first, that a conceptual error exists in the approach adopted by the plaintiffs to the discharge of their discovery obligations and to their compliance with the discovery orders made on 2 October 2024;

(b) second, that it is reasonably likely there is documentary material within the email inboxes of Mr Zeng and Ms Dillon which falls within one of the discovery categories ordered by the Court, and there is a sufficient likelihood therefore that the making of the discovery orders will produce a forensic benefit of enough significance to sustain the order being made; and

(c) third, that the steps required to be undertaken by the plaintiffs and their legal team to collate and discover this documentary material is proportionate to the potential probative value of those documents and not overly burdensome.

Specific Discovery Categories relied upon by Mineralogy**

All Documents in the Post Production Period, including drafts, recording or referring to the consideration by the CITIC Parties of, the preparation and submission of, and any interaction with the State (in any capacity) in relation to the 2023 MCPs.

All Documents during the Post Production Period recording or referring to:

1. the CITIC Parties' estimate of the remaining ore that can be extracted from the Mine Area without a further approved proposal;
2. the constraints that the CITIC Parties are experiencing because of the inability to expand the Mine Pit;
3. any steps that the CITIC Parties have considered or have taken to try to relieve these constraints;
4. the CITIC Parties' estimate of the amount of ore that could be extracted from the proposed expanded Mine Pit with approval of the 2023 MCPs; or
5. the expanded Mine Pit proposed in the 2023 MCPs.

All Documents during the Post Production Period recording or referring to:

1. the CITIC Parties' tailings disposal requirements;
2. the CITIC Parties' estimate of its remaining tailings storage capacity;
3. the constraints that the CITIC Parties are experiencing with respect to tailings disposal because of the inability to expand outside the Mine Area;
4. any steps that the CITIC Parties have considered or have taken to try to relieve these constraints;
5. the CITIC Parties' estimate of the capacity of the tailings storage facility proposed in the 2023 MCPs;
6. the capacity of the expanded tailings storage facility proposed in the 2023 MCPs; or
7. the expanded tailings storage facility proposed in the 2023 MCPs

All Documents during the Post Production Period recording or referring to:

1. the CITIC Parties' waste rock storage requirements;
2. the CITIC Parties' estimate of the amount of waste rock which will be produced by the extraction of 2Bt of ore;

iii. the CITIC Parties' estimate of its remaining waste rock storage capacity;

1. the constraints that the CITIC Parties are experiencing with respect to waste rock storage because of the inability to expand outside the Mine Area, including because of the location of the Fortescue River Road;
2. any steps that the CITIC Parties have considered or have taken to try to relieve these constraints;
3. the CITIC Parties' estimate of the waste rock storage capacity of the waste rock dumps proposed in the 2023 MCPs; or
4. the waste rock dumps proposed in the 2023 MCPs.

All Documents from 1 January 2012 to 27 November 2023 recording or referring to the CITIC Parties' consideration of the expansion of the mine pit or waste storage capacity for the purposes of the Sino Iron Project.

All Documents between 1 January 2010 and 21 December 2017 recording or referring to:

1. the CITIC Parties' consideration of the MEP; or
2. the CITIC Parties assisting Mineralogy in pursuing approval of the MEP.

All Documents during the Post Production Period recording or referring to:

1. the geology of the ore body and the size and design of the mine pit, including;

1. any Mine Plan, the shape of the mine pit and the alleged need to expand the mine pit to the west (save that for this purpose, a "Mine Plan" is limited to a documented plan for the Life of Mine or for a 3 or 5 year (or longer) period);
2. the size and design of the tailings storage facility for the Sino Iron Project;
3. tailings disposal requirements for the Sino Iron Project;
4. the extension of the mine pit to the west;
5. the relocation of the Fortescue River Road as proposed in the 2023 MCPs;
6. the CITIC Parties' experience in developing and operating the Sino Iron Project as it concerns the development of the 2023 MCPs and the alleged necessity for the facilities proposed in the 2023 MCPs;
7. waste rock requirements for the Sino Iron Project; or
8. the design of facilities which are the subject of the 2023 MCPs, including timeframes and schedules for construction, construction drawings and specifications, contract tenders and reports justifying the necessity for the facilities;

1. recording the then current annual forecast of production of magnetite concentrate for the Sino Iron Project.

All Documents during the Post Production Period recording or referring to the planned relocation of the Fortescue River Road.

All Documents during the Post Production Period recording or referring to the risk of suspension and / or slowdown at the mine, the reasons for such suspension and / or slowdown.

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

[1] The order sought by the first defendant refers to the email 'inboxes' of the named executives. For the avoidance of doubt, I will treat this as referring to the entire email folder of the executives, capturing incoming emails and sent emails, not only emails contained in the 'Inbox'.

[2] See the chausette to order 1 of the chamber summons.

[3] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2024] WASC 413.

[5] Email from the first defendant's solicitors sent at 11.28am on 31 March 2025. The primary documents relied upon by Mineralogy were CPM.555.001.2516, CPM.630.317.5109, CPM.639.268.5566, CPM.639.268.5569, CPM.522.007.3612, and CPM.522.005.5128.

[6] Mineralogy's outline of submissions dated 20 March 2025 (DS) and CITIC Parties' outline of submissions dated 27 March 2025 (PS).

[8] Affidavit of Ms Robinson sworn 21 March 2025, [10], referring to an attachment to her earlier affidavit sworn 20 March 2025 (Attachment TLR-05). See also DS [19] and footnote 28 thereof.

[9] Affidavit of Ms Robinson sworn 21 March 2025, [6].

[11] Perpetual Trustees Co Ltd v Burniston [2012] WASC 26 [26] - [37] (Edelman J) (Burniston).

[12] Roe v State of Western Australia [2013] WASC 130 [10] - [12] (Martin CJ); Maek Pty Ltd v Ibrahim [2022] WASC 285 [25] - [27] (Quinlan CJ).

[13] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 6] [2025] WASC 77 (Lundberg J), which was heard on 10 March 2025.

[15] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2024] WASC 413 [11], [12], [76], [83], [90], [91], [100], [108], and [121] (Lundberg J).

[16] Attachment C to the orders made on 2 October 2024, as clarified by the orders made on 5 March 2025.

[17] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2024] WASC 413, Attachment A at pages 35 and 39 especially.