WRIGHT PROSPECTING PTY LTD -v- HANCOCK PROSPECTING PTY LTD [2026] WASC 101 (S)

[2026] WASC 101 (S) Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL CITATION : WRIGHT PROSPECTING PTY LTD -v- HANCOCK PROSPECTING PTY LTD [No 26] [2026] WASC 101 (S) CORAM : SMITH J HEARD : 19 MAY 2026 DELIVERED : 30 JUNE 2026 FILE NO/S : CIV 3041 of 2010 (Consolidated with CIV 2617 of 2012 by Orders dated 9 September 2014) BETWEEN : WRIGHT PROSPECTING PTY LTD Plaintiff AND HANCOCK PROSPECTING PTY LTD First Defendant HOPE DOWNS IRON ORE PTY LTD Second Defendant BIANCA HOPE RINEHART Third Defendant JOHN LANGLEY HANCOCK Fourth Defendant HOPE RINEHART WELKER Fifth Defendant GINIA HOPE FRANCIS RINEHART Sixth Defendant -- 1 of 56 -- [2026] WASC 101 (S) Page 2 HAMERSLEY WA PTY LTD Third Party FILE NO/S : CIV 2617 of 2012 BETWEEN : WRIGHT PROSPECTING PTY LTD Plaintiff AND HANCOCK PROSPECTING PTY LTD First Defendant HOPE DOWNS IRON ORE PTY LTD Second Defendant BIANCA HOPE RINEHART Third Defendant JOHN LANGLEY HANCOCK Fourth Defendant HOPE RINEHART WELKER Fifth Defendant GINIA HOPE FRANCIS RINEHART Sixth Defendant HAMERSLEY WA PTY LTD Third Party FILE NO/S : CIV 2737 of 2013 BETWEEN : DFD RHODES PTY LTD First Plaintiff MATTHEW JOHN KEADY AND DOROTHEA MARGARET CAMPBELL as executors of the estate of DONOVAN FRANCES DUNCAN RHODES Second Plaintiffs -- 2 of 56 -- [2026] WASC 101 (S) Page 3 AND HANCOCK PROSPECTING PTY LTD First Defendant WRIGHT PROSPECTING PTY LTD Second Defendant HOPE DOWNS IRON ORE PTY LTD Third Defendant BIANCA HOPE RINEHART Fourth Defendant JOHN LANGLEY HANCOCK Fifth Defendant HOPE RINEHART WELKER Sixth Defendant GINIA HOPE FRANCIS RINEHART Seventh Defendant HAMERSLEY WA PTY LTD Third Party Catchwords: Costs - Orders made to reflect findings made in primary decision on liability in main proceedings, contribution proceedings and third-party proceedings Costs - Apportionment of costs - O 66 r 1 and r 2(a) of the Rules of the Supreme Court 1971 (WA) - Whether issues and claims discrete and severable - Whether proprietary claims were a separate cause of action to its contractual claims Costs - Whether plaintiffs' costs should be apportioned between defendants -- 3 of 56 -- [2026] WASC 101 (S) Page 4 Costs - Calderbank offer rejected - Whether rejection unreasonable Costs - Applications for special costs orders - Inadequate fixed amounts under Table B relevant costs determinations - Whether hourly rates for counsel, practitioners, clerks and paralegals should be uplifted Costs - Reserved costs application - 2016 joinder application - turns on own facts Legislation: Legal Profession Uniform Law Application Act 2022 (WA) Rules of the Supreme Court 1971 (WA); O 66 r 1 and r 2(a) Result: Orders made Category: B Representation: CIV 3041 of 2010 (Consolidated with CIV 2617 of 2012 by Orders dated 9 September 2014) Counsel: Plaintiff : Ms J Taylor SC, Ms L Coleman & Ms C McKay First Defendant : Mr C Colquhoun SC, Mr T O'Brien & Mr C Marshall Second Defendant : Mr C Colquhoun SC, Mr T O'Brien & Mr C Marshall Third Defendant : Mr C Withers SC & Mr L Moretti Fourth Defendant : Mr C Withers SC & Mr L Moretti Fifth Defendant : No appearance Sixth Defendant : Ms K Lindeman Third Party : Mr G Donaldson SC & Ms C Wren -- 4 of 56 -- [2026] WASC 101 (S) Page 5 Solicitors: Plaintiff : Clayton Utz First Defendant : Corrs Chambers Westgarth Second Defendant : Corrs Chambers Westgarth Third Defendant : YPOL Lawyers Fourth Defendant : YPOL Lawyers Fifth Defendant : Deutsch Miller Sixth Defendant : Dentons Australia Third Party : Allens CIV 2617 of 2012 Counsel: Plaintiff : Ms J Taylor SC, Ms L Coleman & Ms C McKay First Defendant : Mr C Colquhoun SC, Mr T O'Brien & Mr C Marshall Second Defendant : Mr C Colquhoun SC, Mr T O'Brien & Mr C Marshall Third Defendant : Mr C Withers SC & Mr L Moretti Fourth Defendant : Mr C Withers SC & Mr L Moretti Fifth Defendant : No appearance Sixth Defendant : Ms K Lindeman Third Party : Mr G Donaldson SC & Ms C Wren Solicitors: Plaintiff : Clayton Utz First Defendant : Corrs Chambers Westgarth Second Defendant : Corrs Chambers Westgarth Third Defendant : YPOL Lawyers Fourth Defendant : YPOL Lawyers Fifth Defendant : Deutsch Miller Sixth Defendant : Dentons Australia Third Party : Allens -- 5 of 56 -- [2026] WASC 101 (S) Page 6 CIV 2737 of 2013 Counsel: First Plaintiff : Mr J Stoljar SC, Ms L Hulmes & Mr S Taylor Second Plaintiffs : Mr J Stoljar SC, Ms L Hulmes & Mr S Taylor First Defendant : Mr C Colquhoun SC, Mr T O'Brien & Mr C Marshall Second Defendant : Ms J Taylor SC, Ms L Coleman & Ms C McKay Third Defendant : Mr C Colquhoun SC, Mr T O'Brien & Mr C Marshall Fourth Defendant : Mr C Withers SC & Mr L Moretti Fifth Defendant : Mr C Withers SC & Mr L Moretti Sixth Defendant : No appearance Seventh Defendant : Ms K Lindeman Third Party : Mr G Donaldson SC & Ms C Wren Solicitors: First Plaintiff : Taylor & Taylor Lawyers Pty Ltd Second Plaintiffs : Taylor & Taylor Lawyers Pty Ltd First Defendant : Corrs Chambers Westgarth Second Defendant : Clayton Utz Third Defendant : Corrs Chambers Westgarth Fourth Defendant : YPOL Lawyers Fifth Defendant : YPOL Lawyers Sixth Defendant : Deutsch Miller Seventh Defendant : Dentons Australia Third Party : Allens Cases referred to in decision: Amaca v Hannell [2007] WASCA 158 (S) Browne v Browne [2017] WASC 375 (S) Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66 (S) CBI Constructors Pty Ltd v Chevron Australia Pty Ltd [2023] WASCA 1 Chen v Chan (No 2) [2009] VSCA 233 Citic Ltd v Mineralogy Pty Ltd [No 7] [2021] WASC 371 Electricity Generation and Retail Corporation Trading as Synergy v Woodside Energy Ltd [2014] WASC 469 (S) Frigger v Lean [2012] WASCA 66 Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) -- 6 of 56 -- [2026] WASC 101 (S) Page 7 JKC Australia LNG Pty Ltd v CH2M Hill Companies Ltd [No 2] [2020] WASCA 112 (S) Kimpura Pty Ltd v JWH Group Pty Ltd [2004] WASCA 134 KSG Investments Pty Ltd v Open Markets Group Ltd (No 2) [2021] VSC 359 Latoudis v Casey (1990) 170 CLR 534 McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 (S) Merilla Pty Ltd v Commonwealth of Australia [2015] WASC 309 (S) Metalicity Ltd v Allen [No 2] [2022] WASC 420 Milillo v Konnecke [2009] NSWCA 109 Mount Lawley Pty Ltd v Western Australian Planning Commission [2006] WASC 82 (S) Moyle v Quarles [No 4] [2025] WASC 458 Naidoo v Williamson [2008] WASCA 179; (2008) 37 WAR 516 Northwest Pilots Pty Ltd atf Port Hedland Pilots Unit Trust t/as Port Hedland Pilots v Daniel [2023] WASC 73 (S) Permanent Building Society v Wheeler [No 2] (1993) 10 WAR 569 Santos Offshore Pty Ltd v Apache Oil Australia Pty Ltd [2015] WASC 242 (S) Sino Iron Pty Ltd v Mineralogy Pty Ltd [2022] WASC 151 Sino Iron Pty Ltd v Mineralogy Pty Ltd [2026] WASCA 71 (S) Souter v Condor Developments Pty Ltd [2012] WASCA 227 Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96; (2019) 54 WAR 388 Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 26] [2026] WASC 101 Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 5] [2016] WASC 58 Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 7] [2016] WASC 305 -- 7 of 56 -- [2026] WASC 101 (S) Page 8 Table of Contents 1.0 Introduction .......................................................................................................................... 9 1.1 The success of the parties in the hearing on liability ........................................................ 9 1.2 Cost orders made by consent and the cost applications that remain to be determined... 10 1.2.1 Rhodes proceedings ................................................................................................. 10 1.2.2 WPPL proceedings .................................................................................................. 11 1.2.3 Contribution proceedings ........................................................................................ 13 1.2.4 Third-party proceedings .......................................................................................... 13 2.0 Apportionment of costs and severance of issues - Principles ............................................. 13 3.0 Costs applications between Rhodes and Bianca Rinehart and John Hancock, and WPPL and Bianca Rinehart and John Hancock ................................................................................... 17 4.0 Costs applications between WPPL and the HPPL Parties .................................................. 25 4.1 Calderbank offer made by the HPPL Parties to WPPL .................................................. 25 4.1.1 Calderbank offers - Principles ................................................................................. 26 4.1.2 Was it unreasonable for WPPL to reject the HPPL Parties' Calderbank offer? ...... 28 4.2 Disposition ...................................................................................................................... 29 4.3 Reserved costs - 2016 joinder application ...................................................................... 38 5.0 Costs applications between Rhodes and WPPL in the Rhodes proceedings ...................... 41 6.0 Special costs orders - Principles ......................................................................................... 46 7.0 Special Costs orders sought by Rhodes and WPPL ........................................................... 47 8.0 Costs of the third-party proceedings ................................................................................... 48 -- 8 of 56 -- [2026] WASC 101 (S) SMITH J Page 9 SMITH J: 1.0 Introduction 1.1 The success of the parties in the hearing on liability 1 Wright Prospecting Pty Ltd (WPPL) is the plaintiff in consolidated proceedings CIV/3041/2010 and CIV/2617/2012. The plaintiffs in action CIV/2737/2013 are DFD Rhodes Pty Ltd and the executors of the estate of Donovan Frances Duncan Rhodes (Rhodes). 2 Hancock Prospecting Pty Ltd (HPPL) and its subsidiary, Hope Downs Iron Ore Pty Ltd (HDIO) (together the HPPL Parties), are first and second defendants to the WPPL proceedings and first and third defendants to the Rhodes proceedings. WPPL is also the second defendant to the Rhodes proceedings. 3 Bianca Rinehart, John Hancock, Hope Welker and Ginia Rinehart (collectively the Children) are defendants to the WPPL and Rhodes proceedings. 4 The HPPL Parties and WPPL in the Rhodes proceedings each issued contribution proceedings against each other. 5 The HPPL Parties issued third-party proceedings against Hamersley WA Pty Ltd in both the WPPL and Rhodes proceedings. 6 On 1 May 2026, judgment was delivered in a hearing on liability in respect of each claim made by the plaintiffs in the WPPL proceedings and the Rhodes proceedings, the contribution proceedings, and the third-party proceedings.1 7 No party in the Rhodes or WPPL proceedings can claim entire success in respect of all claims and defences in either proceedings in the trial on liability. Each party won and lost important issues in both proceedings. 8 In the Rhodes proceedings, Rhodes failed in their contractual claim for royalties but substantially succeeded against HPPL in their equitable claim for royalties. The HPPL Parties unsuccessfully defended Rhodes' claims in equity for royalties in respect of ore produced from sections 3 to 7 of ML 282SA (Hope Downs 3 and the East Angelas). However, the HPPL Parties successfully defended 1 Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 26] [2026] WASC 101 (Liability Judgment). -- 9 of 56 -- [2026] WASC 101 (S) SMITH J Page 10 Rhodes' claims in contract and equity for royalties in respect of ore produced from sections 1 and 2 of ML 282SA (Hope Downs 1 and 2). Rhodes was unsuccessful in obtaining any relief as against WPPL. 9 In the WPPL proceedings, WPPL succeeded in its contractual claims against HPPL for a 50% share of royalties paid by Hamersley to HDIO on ore produced and sold from sections 1 to 7 of ML 282SA (Hope Downs 1 to 3 and the East Angelas), but failed in its proprietary claims against the HPPL Parties to a beneficial interest in the East Angelas areas held as to 50% by HDIO. 10 Bianca Rinehart and John Hancock failed in their defences to the Rhodes and WPPL proceedings as they failed to make out their proprietary claim that the Children were the beneficial owners of the 50% share of the Hope Downs Project Tenements held by HDIO. 11 The factual history upon which the findings were made in both proceedings were significantly common to each of the parties' claims and defences in the Rhodes proceedings and the WPPL proceedings. 1.2 Cost orders made by consent and the cost applications that remain to be determined 1.2.1 Rhodes proceedings 12 In the Rhodes proceedings, consent orders were made on 19 May 2026 that the HPPL Parties pay 50% of Rhodes' costs of and incidental to the proceeding up until and including a separate hearing on liability, on a party/party basis, to be assessed if not agreed. 13 The effect of this order is that the HPPL Parties are required to pay a portion (50%) of Rhodes' total (party/party) costs up until the conclusion of the hearing on liability. An order in this form is appropriate as it avoids the need for any taxation process to differentiate between Rhodes' costs as against the HPPL Parties, and its costs as against other parties. 14 Costs orders were also made by consent that Rhodes and the HPPL Parties pay their own costs of any reserved or undecided costs, including: (a) in relation to the chamber summons filed by Rhodes on or around 22 August 2016 seeking orders joining the Children to the proceeding (which costs were reserved on 18 August 2016 and 23 September 2016); -- 10 of 56 -- [2026] WASC 101 (S) SMITH J Page 11 (b) costs thrown away by reason of the vacation of the hearing dates previously listed to commence on 22 October 2016; (c) reserved costs in relation to a hearing on 13 April 2017; (d) costs of a chamber summons filed on 29 March 2021 by the HPPL Parties (as amended on or around 7 and 13 April 2021) seeking a stay of Rhodes' Reply and a trial of separate questions; and (e) special costs orders lifting the limits for each item in Table B and for senior counsel in Table A of the relevant costs determinations. 15 In the Rhodes proceedings, the costs applications that remain to be determined are: (1) as between Rhodes and Bianca Rinehart and John Hancock whether: (a) Bianca Rinehart and John Hancock should jointly and severally pay 15% of Rhodes' costs of and incidental to the proceeding, up until and including a separate hearing on liability, on a party/party basis; or (b) there should be no order as to costs; and (2) as between Rhodes and WPPL whether there should be no order as to costs, or whether Rhodes should pay WPPL its costs, or a portion of defending Rhodes' claims, on a party/party basis. 16 Rhodes does not seek any orders as to costs as against Hope Rinehart Welker and Ginia Rinehart. 1.2.2 WPPL proceedings 17 In the WPPL proceedings, consent orders were also made on 19 May 2026 disposing of two outstanding and reserved costs applications. The first order is that the HPPL Parties pay costs of, and incidental to, a chamber summons filed on 24 February 2021 by the HPPL Parties to strike out certain paragraphs of WPPL's sixth further amended statement of claim, including reserved costs. The second order is that the HPPL Parties pay WPPL's costs of, and incidental to, the amended chamber summons filed by the HPPL Parties on 13 April 2021 in respect of a trial of separate questions, including reserved costs. -- 11 of 56 -- [2026] WASC 101 (S) SMITH J Page 12 In relation to both orders, WPPL and the HPPL Parties also consented to special costs orders lifting limits for item 10 of Table B, and without reference to the hourly and daily rates for solicitors and counsel in Table A of the Legal Practitioners (Supreme and District Courts) (Contentious Business) Determination 2020. 18 In the WPPL proceedings, the costs applications that remain to be determined are: (1) whether orders should be made as between WPPL and the HPPL Parties that: (a) the HPPL Parties pay WPPL the whole of its costs in respect of and incidental to CIV 3041 of 2010 until 8 September 2014, 50% of WPPL's costs of and incidental to CIV 2617 of 2012 until 8 September 2014, and 75% of WPPL's costs of the proceedings from 9 September 2014 (being the date CIV 3041 of 2010 and CIV 2617 of 2012 were consolidated), on a party/party basis; or (b) the HPPL Parties pay 25% of WPPL's costs of and incidental to the proceedings up until and including the separate hearing on liability on a party/party basis, and WPPL pay 75% of the HPPL Parties' costs of and incidental to the proceedings up until and including the separate hearing on liability: (i) until and including 13 August 2023, on a party/party basis; and (ii) from 14 August 2023, on an indemnity basis; and the costs to be fixed in lump sums to be determined by a judge of the court. (2) whether as between WPPL and Bianca Rinehart and John Hancock: (a) Bianca Rinehart and John Hancock should pay WPPL's costs of and incidental to their defence and counterclaim filed on 12 April 2017, or a percentage of WPPL's costs, on a party/party basis; or -- 12 of 56 -- [2026] WASC 101 (S) SMITH J Page 13 (b) there should be no order as to costs. 19 The HPPL Parties argue that they should have 75% of their costs of the WPPL proceedings on an indemnity basis from 14 August 2023 because on that date WPPL unreasonably rejected a Calderbank offer made by the HPPL Parties in relation to WPPL's proprietary claims to the East Angelas. 20 WPPL also does not seek any orders as to costs as against Hope Rinehart Welker and Ginia Rinehart. 21 There is one reserved costs issue outstanding in the WPPL proceedings. That is whether WPPL should pay the HPPL Parties' costs of WPPL's application filed on 12 August 2016 to join the Children to the WPPL proceedings, and the HPPL Parties' costs thrown away by reason of the vacation of trial dates commencing on 31 October 2016. 1.2.3 Contribution proceedings 22 The HPPL Parties accept that a costs order should be made in WPPL's favour in respect of the HPPL Parties' unsuccessful contribution claim. WPPL and the HPPL Parties also accept there should be no order as to costs of WPPL's contribution proceedings. 1.2.4 Third-party proceedings 23 Hamersley accepts that there should be an order that Hamersley pay the HPPL Parties' costs of each third-party action, to be assessed if not agreed. However, Hamersley disagrees with the HPPL Parties as to the extent to which there should be special costs orders with respect to the third-party actions. 24 The HPPL Parties seek special costs orders lifting all limits. Hamersley submits that special costs orders are only warranted and appropriate with respect to counsel fees for trial. 2.0 Apportionment of costs and severance of issues - Principles 25 The discretion to order costs under s 37 of the Supreme Court Act 1935 (WA) and O 66 r 1 of the Rules of the Supreme Court 1971 (WA) is very wide.2 The court's discretion must be exercised judicially, so as 2 Naidoo v Williamson [2008] WASCA 179; (2008) 37 WAR 516 [39]. -- 13 of 56 -- [2026] WASC 101 (S) SMITH J Page 14 to achieve what is fair and just as between the parties according to the circumstances of the particular case.3 26 Order 66 r 1(1) of the Rules of the Supreme Court provides that subject to the express provisions of any statute and of the rules of court, and without limiting the generality of the discretion to make a costs order, the court will generally order that the successful party to any action or matter recovers its costs. 27 Although costs will normally follow the event, this principle will not necessarily be applied where a party, although generally successful in the matter, has by the introduction of some issue or issues on which they failed, increased the costs of the proceedings. In this event, pursuant to O 66 r 1(3), the court may order the successful party to pay the costs of the issues on which they failed. 28 An 'issue' in O 66 r 1(3) does not mean a precise issue in the technical pleading sense, but means any disputed question of fact or law. A court's discretion to render an award of costs by undertaking an assessment conducted by reference to trial issues won or lost should only be exercised in the clearest of cases.4 29 In Strzelecki Holdings Pty Ltd v Jorgensen, the Court of Appeal observed:5 Under O 66 r 1(3) RSC, where a party, though generally successful in an action, has, by the introduction of some issue or issues on which it has failed, increased the costs, the Court may order such party to pay the costs of such issue or issues. It is well-recognised that an order that a successful party recover only a portion of its costs, where it has not been wholly successful, should not be made as a matter of course, for at least two reasons. First, it is often the case that a successful party will not succeed on every issue raised. Secondly, to attempt, in every case, an analysis of which party was successful on which issue would add uncertainty and complexity to the outcome of litigation, and add to the time and cost of costs arguments. Consequently, the power to apportion costs in this way should only be exercised where there are discrete and severable issues on which the generally successful party failed, and which added to the cost of the proceedings in a significant and readily discernible way. Furthermore, while parties should be encouraged to consider carefully what matters they put in issue, justice may not be 3 Frigger v Lean [2012] WASCA 66 [53] (Allanson J) (Newnes & Murphy JJA agreeing); Latoudis v Casey (1990) 170 CLR 534, 558. 4 KSG Investments Pty Ltd v Open Markets Group Ltd (No 2) [2021] VSC 359 [8] (Nichols J); applied in Citic Ltd v Mineralogy Pty Ltd [No 7] [2021] WASC 371 [25] (Kenneth Martin J). 5 Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96; (2019) 54 WAR 388 [51] - [52] (citations omitted) (my emphasis). -- 14 of 56 -- [2026] WASC 101 (S) SMITH J Page 15 served if, by too ready a resort to deciding questions of costs according to success on particular issues, parties are dissuaded by the risk of costs from canvassing all issues which might be material to the decision in the case. Where the Court decides, in the exercise of its discretion, to modify the usual costs orders to reflect the limited success of the successful party, that power will be exercised broadly, and as a matter of impression, and without any attempt at mathematical precision (which is likely to prove illusory in any event). That approach reflects the fact that it may be difficult to separate the factual and evidentiary substratum of different issues, … the fact that some issues are more important than others, and the fact that some issues are subsidiary to others. 30 Therefore, where a party does not succeed on all issues, costs may be apportioned to reflect 'the time and resources allocated' to discrete and severable issues that add to the costs of the proceedings. 31 Order 66 r 2(a) provides that in the absence of any special order where the statement of claim contains more than one cause of action and the plaintiff succeeds on one or more causes of action and the defendant succeeds on another or others, costs shall be allowed to the plaintiff on the cause of action on which he or she succeeds and to the defendant on that, or those, on which he or she succeeds. A cause of action for the purpose of this rule is a reference to the factual situation that entitles the plaintiff to obtain a remedy.6 The rule is not inflexible. It retains a discretion to make a special costs order departing from O 66 r 2(a).7 32 In Souter v Condor Developments Pty Ltd, Newnes JA referred to the principles that apply to O 66 r 1(3) and O 66 r 2(a) in respect of awards of costs allocated to a cause of action on which a party succeeds, and when it is preferable in the interests of justice to award costs on a percentage basis:8 [W]here a party, although generally successful, has failed on some issue or issues which increased the costs of the action, the court may order the party to pay the costs of those issues: O 66 r 1(3). But that is a power to be exercised with caution and not as a matter of course. While parties should be encouraged to litigate only those matters which are properly and reasonably in issue, parties should not be dissuaded by the risks of an adverse costs order from canvassing all issues which might be material to the proper determination of a case: Keet v Ward [18]. 6 Permanent Building Society v Wheeler [No 2] (1993) 10 WAR 569, 572 (Anderson J). 7 Kimpura Pty Ltd v JWH Group Pty Ltd [2004] WASCA 134 [12] - [16] (Pullin J). 8 Souter v Condor Developments Pty Ltd [2012] WASCA 227 [28] - [30] (Buss & Murphy JJA agreeing) (my emphasis). -- 15 of 56 -- [2026] WASC 101 (S) SMITH J Page 16 Moreover, any practice of determining costs on the basis of a painstaking analysis of which party won on which issue would simply add to the time, costs and uncertainty of litigation: see Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39 (S) [6]. Such an approach may also fail to do justice in cases where the issues were intertwined or overlapped, or there was only one substantive issue. The exercise of the power to adjust an order for costs by reference to particular issues upon which an otherwise successful party has failed will ordinarily be appropriate only where the party has failed on discrete and severable issues which have added to the costs of the action in a significant and readily discernible way: Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158 (S) [7]. Where the court considers that an order as to costs should reflect the failure of the successful party on some issues in the action, the better approach will often be to award the successful party a proportion of its costs, or to make no order as to costs, rather than attempt to award costs to the respective parties on an issue by issue basis: Phillips Fox (A Firm) v Westgold Resources NL [2000] WASCA 85 [28]. Where a party is awarded only a proportion of its costs, the exercise of discretion involved will inevitably be more a matter of art than science, depending upon matters of impression and evaluation, and mathematical precision will be illusory: Amaca [6]; Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261,272. Secondly, where a plaintiff pleads two or more causes of action but succeeds on only some of those causes of action, the general rule is that the plaintiff is entitled to costs on the causes of action on which it was successful and the defendant is entitled to costs on the causes of action on which it was successful, as if separate actions had been brought: O 66 r 2(a). Again, and for similar reasons, an order of that kind is not to be made as a matter of course. It is necessary for the court to look at the realities of the case and attempt to do substantial justice in the particular circumstances. In some cases, while it might be strictly correct to say there are different causes of action involved, there may have been only one contest in substance. That will often be so where all causes of action arise out of the one course of dealings, the one transaction, or the same facts, in which case there would usually be one order for the general costs of the action, moulded as necessary to ensure that substantial justice is done: Permanent Building Society v Wheeler [No 2] (1993) 10 WAR 569, 574 - 575; Keet v Ward [24]. 33 It is noted that it is well established that orders to the effect that one party pay another party's costs of specified issues (and that other party pay the first party's costs of other issues) often create complexities for assessors. It is therefore usually undesirable to have multiple costs orders defined by reference to issues arising out of the one set of proceedings. It is usually preferable to make a single order -- 16 of 56 -- [2026] WASC 101 (S) SMITH J Page 17 that covers all of the issues, where those issues are not capable of severance. 34 It follows therefore that where it is difficult to isolate the discrete issues on which a party has been successful on the basis that there is an overlap or intertwining between issues won and lost, a preferable approach may be to assess on a percentage basis the relative time and effort attributable to the issues and to make a corresponding reduction in the costs to which the successful party is otherwise entitled. 35 In determining an appropriate costs order, a court can take into account complications which might arise in the taxation of costs in determining where the overall interests of justice lie.9 36 It is to be expected that a generally successful party will fail on some issues.10 In a case in which the generally successful party has failed on only a minor issue, which did not materially add to the costs of the conduct of the proceedings, it would ordinarily not be appropriate to depart from the general rule, unless the conduct of the generally successful party in relation to that issue had been unreasonable. In the event of unreasonableness, different considerations may apply.11 3.0 Costs applications between Rhodes and Bianca Rinehart and John Hancock, and WPPL and Bianca Rinehart and John Hancock 37 Bianca Rinehart and John Hancock's defences to the Rhodes and WPPL claims were substantially the same. Their principal defences in both proceedings was as follows: (a) the Hope Downs and East Angelas tenements were owned beneficially by Hancock Mining Ltd (HML) and later Hancock Resources Pty Ltd (HRL). Bianca Rinehart and John Hancock relied upon the established fact that when these tenements were acquired by HML and later HRL, those companies were owned by the Hancock Family Memorial Foundation Ltd (HFMF) and not HPPL; (b) HML and HRL did not hold the interests in the Hope Downs and East Angelas tenements on trust for HPPL, and so HDIO 9 Chen v Chan (No 2) [2009] VSCA 233 [10] (Forrest AJA) (Maxwell P & Redlich JA agreeing); applied in Merilla Pty Ltd v Commonwealth of Australia [2015] WASC 309 (S) [10] (Beech J). 10 McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 (S) [179] (Beech J). 11 Amaca v Hannell [2007] WASCA 158 (S) [7] (Martin CJ, Steytler P & McLure JA); Strzelecki Holdings Pty Ltd v Jorgensen [48] - [52] (Murphy, Mitchell & Pritchard JJA). -- 17 of 56 -- [2026] WASC 101 (S) SMITH J Page 18 never obtained beneficial title to the Hope Downs Project Tenements, and does not hold any interest in those tenements subject to a trust in favour of Rhodes or WPPL; (c) HFMF's (and HML's and HRL's) property was not held on trust for HPPL or for the Partnership. Lang Hancock caused the Hope Downs and East Angelas tenements to be placed in HML/HRL because they were intended to be used in mining ventures which neither HPPL nor WPPL wanted to undertake; (d) the Hope Downs and East Angelas tenements were from 30 November 1992, and are, held on trust for the Children as the beneficiaries of the HFMF Trust; and (e) a constructive trust in the Children's favour arose from 30 November 1992 because the Hope Downs and East Angelas exploration licences were transferred away from HRL (purportedly their rightful owner) in breach of Gina Rinehart's fiduciary duties as trustee of the HFMF Trust (the Debt Reconstruction Issue). 38 In the Liability Judgment it was found that: (a) when the Hope Downs and East Angelas exploration licences were acquired by HML, and later HRL, they were held on trust for HPPL, by reason of Lang Hancock's breach of fiduciary duties owed to HPPL; (b) the Hope Downs and East Angelas tenements were the fruits of HPPL's opportunities, which Lang Hancock diverted and caused HML and then HRL to take up as his alter ego, in breach of his duties to HPPL. Alternatively, HML and HRL held the Hope Downs and East Angelas tenements as constructive trustees as knowing recipients or knowing assistants in Lang Hancock's fraudulent and dishonest design; and (c) the trust in favour of HPPL subsisted when HML then HRL took up the tenements and continued before and after the tenements were transferred to HPPL's wholly-owned subsidiary, HDL, in November 1992. 39 It was also found that HML, and then HRL, held the Hope Downs and East Angelas tenements on trust for HPPL (except as to royalties -- 18 of 56 -- [2026] WASC 101 (S) SMITH J Page 19 payable from third parties on ore produced from Hope Downs which royalties were to be treated as an interest of the Partnership). 40 A result of these findings was that Bianca Rinehart and John Hancock's alleged entitlement to a constructive trust over the Hope Downs and East Angelas exploration licences and their traceable proceeds (Hope Downs ML 282SA and the profits earned therefrom) failed at the point of acquisition of the tenements by HML and HRL. On that basis, the court did not find it was necessary to consider the Debt Reconstruction Issue. 41 As a result of these findings also, WPPL failed to prove its proprietary claim to the East Angelas and Rhodes failed to prove its proprietary claim to royalties by securing a constructive trust over the HPPL Parties' interest in ML 282SA. 42 Bianca Rinehart and John Hancock argue that as Rhodes and WPPL failed in their proprietary claims there should be no order as to costs as between Bianca Rinehart and John Hancock and Rhodes and WPPL, for the following four reasons: (a) first, this is a case in which the plaintiffs in both proceedings have enjoyed mixed success such that it is appropriate for the court to make costs orders that reflect that state of affairs; (b) second, in the WPPL proceedings in particular, the justification for the joinder of Bianca Rinehart and John Hancock was that their claim to a beneficial interest in the 50% share of the Hope Downs Project Tenements held by HDIO made them a necessary party in respect of the proprietary claims of WPPL. Because WPPL's proprietary claims have failed, WPPL has not enjoyed success on the very issue that necessitated that Bianca Rinehart and John Hancock defend these proceedings; (c) third, a significant proportion of Bianca Rinehart and John Hancock's written and oral submissions concerned the Debt Reconstruction Issue which did not need to be decided by this court. Consequently, neither Rhodes, WPPL or Bianca Rinehart and John Hancock enjoyed success in respect of this issue; and (d) fourth, in both the WPPL and Rhodes proceedings, Bianca Rinehart and John Hancock advanced an alternative argument that it was available to the court to grant relief to -- 19 of 56 -- [2026] WASC 101 (S) SMITH J Page 20 WPPL and Rhodes on very similar terms to the relief which has in fact been ordered. 43 As to the first point, whilst it can be accepted that Rhodes and WPPL enjoyed mixed success, in contrast, Bianca Rinehart and John Hancock's case failed entirely at the point of the Original Acquisition Issue. 44 As to the second point, the relevant circumstances that led to the joinder of the Children to the WPPL and Rhodes proceedings are as follows. 45 Approximately two years prior to the applications to join the Children, Bianca Rinehart and John Hancock commenced proceedings in the Federal Court in NSD 1124/2014 against Gina Rinehart, HPPL and HDIO. In those proceedings, Bianca Rinehart and John Hancock sought relief based substantially upon allegations of misconduct by Gina Rinehart after the death of Lang Hancock and concerning the administration of one or more trusts of which the Children are beneficiaries. Amongst the relief Bianca Rinehart and John Hancock sought in the Federal Court was a declaration that HDIO holds the Hope Downs and East Angelas tenements on trust for the Children. 46 At the time the applications by Rhodes and WPPL to join the Children as defendants to the proceedings were made in 2016, Rhodes' writ in the Rhodes proceedings claimed that HPPL, HDIO and WPPL held any interest they have in the East Angelas and Hope Downs on trust for Rhodes to the extent of Rhodes' entitlement to royalties. Rhodes also claimed payment of royalties from the East Angelas and Hope Downs projects. By that time also, in the WPPL proceedings, CIV 3041 of 2010 and CIV 2617 of 2012 had been consolidated. In the consolidated proceedings, WPPL claimed a constructive trust in its favour insofar as ML 282SA extended over the area of the former East Angelas exploration licences. WPPL also claimed an entitlement to royalties from ore extracted from Hope Downs 1 to 3 and the East Angelas areas of ML 282SA. 47 In light of the matters claimed by Rhodes and WPPL in the Rhodes and WPPL proceedings at the time of the joinder applications, it was clear that the Children were necessary parties to not only Rhodes' and WPPL's proprietary claims but also the royalty claims. 48 This was because both Rhodes and WPPL were asserting both royalty and proprietary claims. On this basis, there was a potential for -- 20 of 56 -- [2026] WASC 101 (S) SMITH J Page 21 inconsistent findings in the Federal Court proceedings and these proceedings, because the Children were claiming proprietary rights in the Federal Court proceedings that did not acknowledge the existence of Rhodes' or WPPL's royalty claims. That was one of the factors that necessitated the joinder of the Children. When determining the joinder application, Le Miere J made this point clear in the following passage of his Honour's judgment:12 The presence of the Children before the court is necessary to ensure that all matters in dispute in the Consolidated Proceedings and the Rhodes Proceeding may be effectually and completely determined and adjudicated upon. In the Federal Court Proceeding the applicants make claims to the Hope Downs tenements. The applicants say that in 1992 Mr Lang Hancock created the HFMF Trust. The applicants say that the Children are the beneficiaries of the HFMF Trust. They say that at the time of the death of Mr Lang Hancock HFMF held the exploration licences for the Hope Downs tenements. Mrs Rinehart says that the beneficial ownership of the Hope Downs tenements was always with HPPL. The applicants claim that Mrs Rinehart wrongfully caused the Hope Downs tenements to be transferred to HPPL. In the Consolidated Proceedings and the Rhodes Proceeding the plaintiffs claim their interest in the Hope Downs tenements through HPPL. Thus, the claims made by the applicants in the Federal Court proceedings are not only inconsistent with those of Mrs Rinehart, HPPL and HDIO but also inconsistent with he claims of WPPL and the Rhodes Parties. The Children claim a proprietary interest in the land or mining interests which is inconsistent with that claimed by the plaintiffs and the defendants in the Consolidated Proceedings and the Rhodes Proceeding. Their joinder is necessary to ensure that all matters in dispute in the Consolidated Proceedings and the Rhodes Proceeding may be effectually and completely determined and adjudicated upon. 49 As to the fourth point, it is not correct to assert that the court has made final orders for relief as to liability, in favour of Rhodes or WPPL that are in substance similar to any orders proposed by Bianca Rinehart and John Hancock. 50 The first indication from Bianca Rinehart and John Hancock to the court that a finding may be open to the court that did not prejudice their proprietary claims to the Hope Downs and East Angelas tenements came late in the hearing on liability in response to a question from the 12 Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 7] [2016] WASC 305 [21] - [22]. -- 21 of 56 -- [2026] WASC 101 (S) SMITH J Page 22 bench. On the 43rd day of the liability trial, senior counsel for Bianca Rinehart and John Hancock submitted:13 It would be open to your Honour, we accept, to conclude that Lang's intention, if your Honour finds that clause 1(b) [of the 1987 Agreement] provided for a royalty to be paid on tenements beyond a 243 [EL 47/243], that Lang's intention would have been that if the acquisition of Hope Downs 1 and 3 would put HPPL in breach of the royalty obligation under clause 1(e) of the [1987] partnership agreement, then he would have caused HML to pay a royalty to WPPL. So on that basis it would be open to your Honour to find that even though the tenements were acquired beneficially by HML, nonetheless, the obligation to pay a royalty to WPPL subsisted and should burden whoever is the beneficial holder of the tenements. And your Honour could order HPPL to pay the royalty and make clear that in the event that my clients obtain a declaration of constructive trust, that will be subject to an obligation to pay a royalty to WPPL. 51 Bianca Rinehart and John Hancock argue this submission clearly foreshadowed that the court could grant relief recognising the entitlement of the plaintiffs in both the WPPL and Rhodes proceedings to a royalty while still finding for Bianca Rinehart and John Hancock on the Original Acquisition Issue. Bianca Rinehart and John Hancock contend that if the court had arrived at that result it could not seriously be denied that Bianca Rinehart and John Hancock would have enjoyed complete success in this litigation. Bianca Rinehart and John Hancock go on to also argue if the court had made such a finding the practical result for the plaintiffs in the WPPL and Rhodes proceedings would be identical to the relief that has in fact been awarded, and in these circumstances it would be an unjust result to make a costs order against Bianca Rinehart and John Hancock. 52 However, Bianca Rinehart and John Hancock's submissions on this point are misconceived. The court did not grant any relief to WPPL or Rhodes that recognised Bianca Rinehart and John Hancock's right to obtain a declaratory relief in their favour, in respect of their proprietary claim to the Hope Downs and East Angelas tenements, by way of an award in the Martin Arbitration. Nor did Bianca Rinehart and John Hancock seek to amend their pleadings after the submission raising this point was made on 22 November 2023 by their senior counsel. They maintained their defences that WPPL (and Rhodes) were not entitled to any royalties payable on any ore produced and sold from ML 282SA, on the basis of their asserted proprietary interest. 13 Liability trial consolidated ts 3948; a similar submission was made in respect of Rhodes' claims for royalties, Liability trial consolidated ts 3949. -- 22 of 56 -- [2026] WASC 101 (S) SMITH J Page 23 53 As to the third point, Bianca Rinehart and John Hancock rely upon the following matters to support a submission that the Debt Reconstruction Issue was a discrete and severable issue in respect of which neither Rhodes nor WPPL should be awarded costs: (a) a significant portion of Bianca Rinehart and John Hancock's submissions (both written and oral) were directed to this issue. For example, more than 300 pages of their 749 page closing submissions were devoted to a narrative outline of the facts post 1992, and submissions on the legal consequences of those facts; and (b) two significant matters follow from the result that the Debt Reconstruction Issue was not decided. First, there can be no clearer indication that this issue was severable from the other issues in the case. Second, no party can be said to have enjoyed success in respect of this issue, as it was not determined. 54 Whilst it can be accepted the Debt Reconstruction Issue can be treated as severable and discrete, and the general principle that no party should be awarded the costs of an issue that was undecided, acceptance of these points do not lead to the result that there should be no costs as between Rhodes and Bianca Rinehart and John Hancock, and WPPL and Bianca Rinehart and John Hancock. 55 Bianca Rinehart and John Hancock engaged in disputing legal and factual issues not related to the Debt Reconstruction Issue. They made substantive submissions about a number of issues relating to the Original Acquisition Issue.14 56 For example, in respect of WPPL's claim for royalties, they made comprehensive submissions about the meaning of 'Hope Downs', 'Hope Downs tenements' and 'Hope Downs projects' within the meaning of those terms in the 1987 Partnership Agreement.15 They asserted Hope Downs in cl 1(b) and (e) of the 1987 Partnership Agreement referred to EL 47/243 (Hope Downs 1A only) (which tenement when explored was found to contain little or any iron ore). 57 They also made submissions about the effect of the 1983, 1984 and 1987 Partnership Agreements.16 14 Liability Judgment [3328] - [3343]. 15 Liability Judgment [2835] - [2840]; see also [2888] - [2897]. 16 Liability Judgment [3115] - [3133]. -- 23 of 56 -- [2026] WASC 101 (S) SMITH J Page 24 58 In the Rhodes proceedings, they engaged in arguments about the meaning of the 1969 Agreement.17 59 Importantly, Bianca Rinehart and John Hancock raised points relating to the proper construction of the important agreements in both proceedings that differed from the argument put by Rhodes, WPPL and the HPPL Parties. For example, Bianca Rinehart and John Hancock made a submission relating to the proper construction of the words 'Hope Downs' in the 1987 Partnership Agreement that post-contractual admissions are admissible to construe a contract in writing.18 No other party made such a submission. 60 It is clear that WPPL and Rhodes enjoyed mixed success in their proceedings. However, Bianca Rinehart and John Hancock did not. On the basis of Rhodes' and WPPL's mixed success, it is in the interests of justice that there should be an apportionment of the total amount of costs payable to the plaintiffs in the Rhodes proceedings as between Bianca Rinehart and John Hancock and Rhodes and the HPPL Parties. The same principle of apportionment should also apply in respect of WPPL's costs in the WPPL proceedings. 61 For the reasons given below in respect of the costs orders sought as between WPPL and the HPPL Parties in 4.2 of these reasons, it is not practical to award costs on a cause of action or issue basis as between Rhodes and Bianca Rinehart and John Hancock, and WPPL and Bianca Rinehart and John Hancock. 62 However, it is appropriate to apportion costs between all of the defendants and the plaintiffs in both proceedings. This is desirable because there were common issues raised in both proceedings in respect of which there was a duplication of pleas and submissions. Importantly, the defence of Bianca Rinehart and John Hancock in the Rhodes proceedings was essentially the same in the WPPL proceedings. 63 The Debt Reconstruction Issue can be regarded as a severable and discrete issue in respect of which no party should have their costs as no finding can be made as to who succeeded on that issue. 64 Taking a broad-brush approach of the claims and issues raised in both proceedings by Rhodes, WPPL, the HPPL Parties and 17 Liability Judgment [666] - [667]. 18 Liability Judgment [578] - [598]. -- 24 of 56 -- [2026] WASC 101 (S) SMITH J Page 25 Bianca Rinehart and John Hancock, I consider that leaving aside the Debt Reconstruction Issue Bianca Rinehart and John Hancock's defences collectively contributed overall to 20% of the total costs of the plaintiffs in both proceedings. 65 For these reasons, it would be fair that Bianca Rinehart and John Hancock pay 10% of WPPL's costs and 10% of Rhodes' costs, on a party/party basis. 66 Bianca Rinehart and John Hancock's liability to pay the costs of WPPL and Rhodes should however be limited to the costs incurred by WPPL and Rhodes after the Children were joined to the proceedings on 23 September 2016. 67 The result of these findings is that the following orders should be made that Bianca Rinehart and John Hancock jointly pay: (a) 10% of Rhodes' costs of and incidental to the Rhodes proceedings, from 23 September 2016 up until the separate hearing on liability, on a party/party basis; and (b) 10% of WPPL's costs of and incidental to the WPPL consolidated proceedings, from 23 September 2016 up until the separate hearing on liability, on a party/party basis. 4.0 Costs applications between WPPL and the HPPL Parties 4.1 Calderbank offer made by the HPPL Parties to WPPL 68 During the trial on liability, after WPPL and the HPPL Parties had concluded their opening submissions, but before Bianca Rinehart and John Hancock had commenced their opening submissions, the HPPL Parties made a Calderbank offer to WPPL in a letter sent by email to WPPL's solicitors on Friday 11 August 2023 at about 7.00 pm. The offer remained open until 7.00 pm on Sunday 13 August 2023. 69 The stated purpose of the offer was to 'formally invite WPPL to withdraw its claims in relation to the East Angelas Proceeding as against all parties'. The terms of the offer were that the HPPL Parties were willing to settle the action in CIV 2617 of 2012 (defined in the letter as the East Angelas Proceeding) on terms that: a. WPPL will take all necessary steps to have the East Angelas Proceeding dismissed as against all parties, -- 25 of 56 -- [2026] WASC 101 (S) SMITH J Page 26 such that it will not press the relief sought in the Amended Writ; b. WPPL and the HPPL Parties will forego any claim for costs they may have against each other in relation to the East Angelas Proceeding; c. the HPPL Parties will pay WPPL $8 million in contribution towards (i) WPPL's costs incurred in the East Angelas Proceeding; and (ii) any costs that WPPL may be liable to pay in respect of other party's costs in the East Angelas Proceeding, such payment not being subject to any conditions subsequent; d. WPPL and the HPPL Parties will enter into a deed of settlement and release in respect of the East Angelas Proceeding which contains provisions consistent with (a), (b) and (c) above, (together, the Offer). 6 The effect of the Offer, if accepted, will be that WPPL: a. will be able to maintain its claims for royalties against the HPPL Parties in respect of Hope 1-3 and Hope 4-6; b. will not maintain its claims against the HPPL Parties for relief (including any constructive trust or accounts of profit) based on it having a 50% partnership interest in respect of the East Angelas areas; and c. will not maintain its claims against John Hancock and Bianca Rinehart and will discontinue its proceedings against them (noting that the $8 million payment will be able to be applied to meet any adverse costs order connected with the discontinuance). 70 The offer was not accepted by WPPL. 4.1.1 Calderbank offers - Principles 71 One basis for making an award of indemnity costs against an unsuccessful party is that the party unreasonably rejected a Calderbank offer. The assessment of the reasonableness of WPPL's failure to accept the HPPL Parties' offer is an objective question which turns on this court's assessment of the relevant facts and circumstances at the time the offer was made. -- 26 of 56 -- [2026] WASC 101 (S) SMITH J Page 27 72 The relevant principles which govern the exercise of the court's discretion to make an award of indemnity costs on this basis were recently summarised by Lundberg J in Moyle v Quarles [No 4] as follows:19 An offer made pursuant to the principles in Calderbank v Calderbank will not justify an award of indemnity costs unless its rejection was unreasonable. This is an essential element, which involves matters of judgment and impression. The enquiry is objective. The party who makes the Calderbank offer that is rejected bears the onus of satisfying the court that it should make an award of indemnity costs in their favour. All of the relevant facts and circumstances must be considered in determining whether a party's rejection of such an offer was unreasonable. The mere fact that the recipient of a Calderbank offer is ultimately worse off than he or she would have been had the offer been accepted, does not mean that its rejection was unreasonable - the matter is not to be approached by way of a presumption. In general terms, the factors which are said to be relevant to the reasonableness of a party in rejecting a Calderbank offer, while not closed, include the following: (a) the stage of the proceeding at which the offer was received; (b) the time allowed to the offeree to consider the offer; (c) the extent of the compromise offered; (d) the offeree's prospects of success, assessed as at the date of the offer; (e) the clarity with which the terms of the offer were expressed; and (f) whether the offer foreshadowed an application for indemnity costs in the event that the offeree rejected it. 73 It is also established that the terms of a Calderbank offer must be unambiguous, that is the terms must be certain.20 It will not be unreasonable to reject a Calderbank offer if it is uncertain. 19 Moyle v Quarles [No 4] [2025] WASC 458 [30] - [31] (citations omitted). 20 Mount Lawley Pty Ltd v Western Australian Planning Commission [2006] WASC 82 (S) [92] (Templeman J). -- 27 of 56 -- [2026] WASC 101 (S) SMITH J Page 28 4.1.2 Was it unreasonable for WPPL to reject the HPPL Parties' Calderbank offer? 74 The HPPL Parties bear the onus of satisfying the court that indemnity costs should be awarded in their favour.21 75 WPPL first commenced proceedings against the HPPL Parties on 21 December 2010 by filing a writ of summons and an indorsed statement of claim in CIV 3041 of 2010. By that statement of claim WPPL sought to recover, by way of damages, equitable compensation and/or an account of profits, an amount representing one-half of the royalties received by the HPPL Parties in respect of iron ore produced and sold from Hope Downs 1 to 3 of ML 282SA only. 76 On 24 September 2012, WPPL commenced a separate action in CIV 2617 of 2012 against the HPPL Parties claiming a proprietary interest in the East Angelas tenements (Hope Downs 4, 5 and 6), and alleged that the tenements were held on trust by HPPL for the benefit of the Partnership. This action was consolidated with CIV 3041 of 2010 by orders made on 9 September 2014. 77 Following the joinder of the Children to the proceedings, and after the actions were consolidated, the writ in CIV 2617 of 2012 was amended on 30 September 2016 to claim a breach of contract as against HPPL and relief by way of damages for breach of contract from HPPL. It is from this amendment that WPPL for the first time made a claim against HPPL for breach of contract for a failure to pay royalties to WPPL in respect of ore produced and sold from the East Angelas areas of ML 282SA (sections 4 to 7). 78 Consequently, from 30 September 2016, the causes of action raised in CIV 2617 of 2012 were the East Angelas proprietary claims and the claim in contract for royalties. Importantly, it was a term of the Calderbank offer that WPPL wholly discontinue its action in CIV 2617 of 2012. 79 There are four reasons why it was not unreasonable for WPPL not to accept the Calderbank offer. 80 First, as WPPL contends, if it had accepted the offer and taken steps to discontinue the action pleaded in CIV 2617 of 2012, it would not have been able to continue its contractual royalty claim in respect of 21 Strzelecki Holdings Pty Ltd v Jorgensen [82]. -- 28 of 56 -- [2026] WASC 101 (S) SMITH J Page 29 ore produced and sold by Hamersley from sections 4 to 7 of ML 282SA. 81 Second, and in the alternative, insofar as it was stated in the Calderbank offer, the effect of the offer, if accepted, would be that WPPL would be able to maintain its claims for royalties against the HPPL Parties in respect of Hope Downs 1 to 3 and Hope Downs 4 to 6 (the East Angelas), this statement was inconsistent with the term that required WPPL to take steps to dismiss CIV 2617 of 2012. On this basis, the terms of the offer were uncertain. 82 Third, as WPPL points out, the offer required WPPL to not maintain its claims against Bianca Rinehart and John Hancock and required WPPL to discontinue the proceedings against them. However, Bianca Rinehart and John Hancock remained necessary parties to these proceedings even without any claim by WPPL to a proprietary interest in the East Angelas tenements, as their proprietary interest defence was also pleaded against WPPL's contractual claims for royalties. 83 Fourth, as WPPL also points out, the time allowed to consider the offer was insufficient in that it was only open on a weekend and out of office hours, which if WPPL was to discontinue CIV 2617 of 2012, the time to accept the offer was insufficient for WPPL to make any proper enquiry to ascertain the extent of their liability for costs to Hamersley, Bianca Rinehart and John Hancock, and Hope Rinehart and Ginia Rinehart (who were each separately represented). In these circumstances, the court cannot be satisfied that WPPL was in a position to judge whether the settlement sum of $8 million would be sufficient to cover those costs. 84 For these reasons, the HPPL Parties are unable to make out their argument that it was unreasonable for WPPL not to accept the Calderbank offer. On this basis, their claim for indemnity costs fails. 4.2 Disposition 85 The first question which arises for determination is whether WPPL's claim to a proprietary interest in the East Angelas tenements was a separate cause of action from the contractual claims on which WPPL was successful, so as to engage O 66 r 2(a) of the Rules of the Supreme Court. Alternatively, whether it was a 'discrete and severable' issue which 'added to the cost of the proceedings in a significant and readily discernible way', so as to engage O 66 r 1(3). -- 29 of 56 -- [2026] WASC 101 (S) SMITH J Page 30 86 The HPPL Parties argue that WPPL's contractual and equitable claims were separated into two causes of action in the two separate writs comprising the consolidated action, and once the actions were consolidated, the claims remained two separate causes of action which can be costed separately. 87 The HPPL Parties also argue that WPPL's contractual royalty claims and its proprietary claims were treated in the Liability Judgment as separate and distinct claims. Superficially, that could be said to be correct. 88 WPPL did not need to succeed in its proprietary claim for an interest in the East Angelas to succeed in its claim for a share of royalties paid by Hamersley to HDIO on ore produced and sold from the East Angelas areas of ML 282SA. 89 WPPL accepts that the defences of laches (and acquiescence) agitated defensively by the HPPL Parties were substantially directed at WPPL's claim to a proprietary interest in the East Angelas tenements. 90 However, it does not necessarily follow that the Original Acquisition Issue, or that the proprietary interest claim was a separate cause of action or a 'severable or discrete' issue. Nor does it necessarily follow that the proprietary interest claim occupied an extensive severable portion of the written and oral argument in the liability trial as claimed by the HPPL Parties. 91 The factual basis upon which WPPL claimed remedies to their contractual and proprietary interest claims, and the factual basis and a substantial portion of the legal issues and facts upon which the HPPL Parties grounded their defences to WPPL's contractual and proprietary claims, overlapped to a substantial degree. 92 The basis on which each of the parties ran their cases in respect of the Original Acquisition Issue was that it was a critical point in respect of each of the claims made by Rhodes and WPPL, and the defences of the HPPL Parties, and Bianca Rinehart and John Hancock. This was reflected in the summary of the Original Acquisition Issue in the following passage of the Liability Judgment:22 In both the Rhodes and WPPL proceedings it is a central and critical issue who held the beneficial ownership of the Hope Downs and East Angelas exploration licences when first acquired by HML, then HRL 22 Liability Judgment [93]. -- 30 of 56 -- [2026] WASC 101 (S) SMITH J Page 31 (the Original Acquisition Issue), and now who holds the beneficial interest in the 50% share of the Hope Downs Project Tenements held by HDIO, which are now incorporated into ML 282SA. This question in part goes to one of the critical issues in Rhodes' contractual case which is whether any ore mined from ML 282SA is 'produced by', the Partnership within the meaning of the 1969 Agreement, so as to attract Rhodes' contractual rights to a royalty. 93 The degree of overlap between the relevant facts and questions of law concerned in WPPL's claim to royalties and their proprietary claims is illustrated by the following findings. 94 WPPL's claim to royalties and their proprietary claims were founded in a long history of dealings between the partners between the late 1960s and June 1987 when the partners entered into the 1987 Partnership Agreement. 95 The factual basis which concerned these claims arose out of what came to be business or commercial opportunities vested in the Partnership of HPPL and WPPL to obtain rights to, and develop, the Hope Downs and East Angelas reserves. 96 The genesis of these opportunities arose from agreements entered into in the late 1960s and early 1970s. These were agreements the Partnership made with Rhodes, the Nicholas Brothers (James and William Nicholas), and the Colonial Sugar Refinery Company Ltd, which agreements related to rights of occupancy to the East Angelas and Hope Downs reserves. 97 Following persistent efforts of WPPL and HPPL to recover access to the East Angelas and Hope Downs reserves over a decade in the 1970s and 1980s, the Partnership obtained informal access to the East Angelas and Hope Downs 1, 2 and 3 reserves in 1984 and 1985 when the Premier's and Minister's letters issued. As a result, those reserves became 'then mining prospects' of the Partnership as at the date of Peter Wright's death in September 1985 within the meaning of that phrase in cl 13 of the 1983 Partnership Agreement. At least by then also, the opportunity to develop these reserves had become valuable commercial opportunities of the Partnership.23 98 Consequently, the Partnership's rights to seek to develop the Hope Downs and the East Angelas up until 1987 were intertwined in the legal and factual issues that arose from the factual matrix concerning the 23 See the narrative and findings made in 14.0 to 14.2 and 15.0 of the Liability Judgment. -- 31 of 56 -- [2026] WASC 101 (S) SMITH J Page 32 rights and obligations of the Partnership. The issues that arose in respect of each group of the Hope Downs and East Angelas reserves did not differentiate either factually or legally. Whether the Partnership had any rights and obligations as between the partners in respect of these reserves was the subject of the proper construction of the 1983 Partnership Agreement and the 1984 Partnership Agreement. 99 In addition, the issues raised by the parties in respect of WPPL's claim to royalties and their proprietary claims concerned the proper construction of the 1987 Partnership Agreement. The disposition of the proper construction of this agreement occupied 132 pages of the Liability Judgment. Of those pages, 44 pages dealt with the meaning of 'Hope Downs' and 'Hope Downs project' which concerned WPPL's claims in contract for royalties, and 54 pages concerned cl 5 of the 1987 Partnership Agreement which was relied upon by the HPPL Parties in its defence of WPPL's proprietary claims to the East Angelas. 100 In respect of the proper construction of cl 5 of the 1987 Partnership Agreement, the following issues were raised:24 The HPPL Parties formulated the following relevant questions in their List of Closing Issues going to the construction of cl 5: W1. Was cl 5 of the 1987 Partnership Agreement subject to cl 2 or cl 13 of the 1983 Partnership Agreement? W3. Did cl 5 of the 1987 Partnership Agreement only entitle each partner to conduct new searches or searches for new deposits? W3A. Did cl 5 of the 1987 Partnership Agreement only entitle each partner to prospect and take up tenements for the Partnership, rather than on its own account? From these questions, another question emerges, and that is, did the first limb of cl 10 of the 1984 Partnership Agreement remain operative after the entry into the 1987 Partnership Agreement? The HPPL Parties also formulated the following question of fact relating to the entitlement conferred by cl 5: W4. Were the East Angelas exploration licences taken up for the Partnership despite the entitlement under cl 5 of the 1987 Partnership Agreement? 24 Liability Judgment [3052] - [3056]. -- 32 of 56 -- [2026] WASC 101 (S) SMITH J Page 33 Another question is raised by W4, and that is whether HPPL took up the East Angelas tenements for itself, or whether Lang Hancock caused HML to take up the East Angelas tenements on its own account, or on constructive trust for the Partnership, or for HPPL alone. 101 Although it might be said that the work performed in preparing the arguments to be put in respect of the proper construction of the 1987 Partnership Agreement and the relevant factual circumstances of each claim could be said to be severable, when the issues and surrounding circumstances relevant to the construction of that agreement are considered, it is clear that they are not so severable. 102 Although, it might be said that once WPPL and HPPL entered into the 1987 Partnership Agreement in June 1987, which had the effect that WPPL relinquished any right to obtain a future proprietary interest in Hope Downs, and the commercial opportunity to do so became solely HPPL's opportunity; the facts relevant to WPPL's claim to a proprietary interest in the East Angelas exploration licences and the East Angelas areas of ML 282SA ceased to be intertwined. That, however, did not occur. 103 To succeed in its claim for royalties for ore produced from all sections of ML 282SA (that is both the Hope Downs and East Angelas areas), WPPL was required to prove that such royalties were and 'are received from third parties by the Partnership' within the meaning of cl 1(e) of the 1987 Partnership Agreement. This point brought into play whether the Hope Downs and East Angelas exploration licences when granted to HML in 1988 and 1989, later transferred to HRL in 1990, and then taken up by HDIO in 1996, were beneficially owned by HPPL. 104 The taking up of the Hope Downs and East Angelas exploration licences by HML and the subsequent transfer to HRL in circumstances where HFMF was the sole owner of HML then HRL, raised the issue of whether Lang Hancock was in breach of his fiduciary duties to HPPL or to the Partnership. 105 The HPPL Parties argue that by WPPL joining Bianca Rinehart and John Hancock to the proceedings and by WPPL pleading its par 53C case that if Bianca Rinehart and John Hancock were able to prove that the Hope Downs and East Angelas exploration licences were the property of the HFMF Trust, WPPL was the beneficial owner as to half of the interest held by the Children. The HPPL Parties argue their defence to this par 53C claim added to the complexity and substantially -- 33 of 56 -- [2026] WASC 101 (S) SMITH J Page 34 to the cost of pressing the HPPL Parties' defence of WPPL's claims. This submission is, however, flawed. 106 While it is clear that Bianca Rinehart and John Hancock's defence to the WPPL proceedings added to the complexity and costs of the proceedings, it cannot be accepted that the HPPL Parties would have run a different case as against WPPL in the absence of the defence of Bianca Rinehart and John Hancock, and in the absence of WPPL's par 53C case. 107 This is simply because if the HPPL Parties had only relied upon cl 5 of the 1987 Partnership Agreement in defence of WPPL's proprietary claim in par 53AA, in par 53A and par 53B (and in par 111), the HPPL Parties' case on these pleas would have failed as it was found that when HML took up the East Angelas exploration licences on 2 February 1989, it did not do so pursuant to cl 5 of the 1987 Partnership Agreement.25 For this reason, it would have been necessary for the HPPL Parties to run the case that they did that HML acquired the East Angelas exploration licences on trust for HPPL: (a) by reason of breaches of Lang Hancock's fiduciary duties to HPPL; (b) as a knowing participant in Lang Hancock's breaches of his fiduciary duties to HPPL; and/or (c) as a knowing recipient of corporate property of HPPL received in breach of Lang Hancock's fiduciary duties to HPPL. 108 In addition, to determine Rhodes' claims in contract to royalties, in particular the critical point on which Rhodes failed, that is whether 'ore is produced by the Partnership' from Hope Downs 1 to 6 of ML 282SA, required the court to determine who was the beneficial owner of both Hope Downs and the East Angelas exploration licences at the time of acquisition by HML then HRL. 109 The HPPL Parties also argued at trial that it was immaterial that HDIO acts for and on behalf of HPPL because royalties payable on ore produced and sold from the Hope Downs and East Angelas areas were not and are not an asset or interest of the Partnership. This contention was rejected.26 25 18.6.6 of the Liability Judgment. 26 See 20.6 of the Liability Judgment. -- 34 of 56 -- [2026] WASC 101 (S) SMITH J Page 35 110 In addition, the HPPL Parties also ran a case that HDIO did not assume responsibility for the mining operations of ML 282SA on behalf of HPPL, and that HDIO was and is producing ore on its own account and for its own benefit from ML 282SA. This case was also rejected. To the contrary, it was found that HPPL has a beneficial interest in ML 282SA. This beneficial ownership finding was relevant to the disposition of WPPL's proprietary claims and its claims for royalties paid by Hamersley to HDIO on ore produced from Hope Downs and the East Angelas areas (sections 1 to 7 of ML 282SA). This issue was also important to the disposition of Rhodes' contractual claim for royalties payable on ore produced from the Hope Downs and East Angelas areas of ML 282SA.27 111 If it had been found, as contended by the HPPL Parties, that no ore was produced by the Partnership from any areas of ML 282SA because the 50% interest in the mining lease was owned by HDIO alone, WPPL's proprietary and contractual claims for royalties on this basis would have failed. 112 I am not satisfied that the HPPL Parties should be awarded any of its costs. The reasons why I have made this finding can be concisely summarised as follows. (a) The beneficial ownership issue at the core of the Original Acquisition Issue was itself a critical issue in both the contractual and proprietary claims of WPPL. (b) The work associated with the defence of WPPL's proprietary claims was a not insignificant part of the work that was also necessary to be carried out by the HPPL Parties in their defence of Rhodes' claims. (c) Leaving aside the evidence and legal issues relevant to establish the laches and acquiescence defences, the facts relevant to establish the royalties claims and proprietary claims were extensively mixed. On this basis, it is not open to find that the facts, legal issues and work required by the HPPL Parties to defend WPPL's proprietary claims are severable, or discrete. (d) Even if it is accepted that the royalties claims and proprietary claims can be regarded as separate causes of action, the discretionary power to make separate costs orders as sought by 27 See 9.5.2.2 of the Liability Judgment. -- 35 of 56 -- [2026] WASC 101 (S) SMITH J Page 36 the HPPL Parties pursuant to O 66 r 2(a) of the Rules of the Supreme Court should not be invoked as these causes of action arose out of the same course of dealings, and involved a substantial overlap in facts and issues of law. 113 However, I am not satisfied that the costs orders sought by WPPL should be made. I consider that a single order for costs should be made in favour of WPPL, as against the HPPL Parties. 114 It is relevant to note that WPPL properly concedes that there should be a discount of its costs for its failure to make out its equitable proprietary claims, and the success of the HPPL Parties' laches and acquiescence defences. 115 It is also relevant to note that an order that the costs of CIV 3041 of 2010 and CIV 2617 of 2012 be awarded and assessed by reference to two causes of action that had been litigated prior to the consolidation of the WPPL consolidated proceedings would be onerous for the parties and for the taxing officer to separate. I also doubt, as a matter of impression, whether the end result of that process would better achieve a fair and reasonable outcome as between WPPL and the HPPL Parties. 116 WPPL submits that its costs of the East Angelas claims may be reduced by 50% prior to consolidation and then by 75% in order to reflect the success of its claim to a share of royalties, and the significance of the laches issue. It seeks its entire costs of the contractual claims prior to consolidation. I am not persuaded that such orders would be practical for an assessor to make a proper assessment of work between the claims. More relevantly, such orders would overinflate WPPL's success in the proceedings. 117 Having regard to WPPL's degree of success as against the HPPL Parties, and the principle that ordinarily costs follow the event and a successful party receives their costs in the absence of special circumstances justifying some other order, in circumstances where WPPL has succeeded only in its contractual royalty claim, there should be a significant discount applied to WPPL's entitlement to costs. 118 WPPL should generally be entitled to up to 40% of its costs of the WPPL proceedings payable by the HPPL Parties and Bianca Rinehart and John Hancock, on a party/party basis. Of these costs, the HPPL Parties should pay WPPL 30% of its assessed costs associated with and incidental to the WPPL proceedings. As outlined above in 3.0 of these reasons, Bianca Rinehart and John Hancock should pay 10% of -- 36 of 56 -- [2026] WASC 101 (S) SMITH J Page 37 WPPL's assessed costs of the WPPL consolidated proceedings after the Children were joined to the WPPL proceedings on 23 September 2016. 119 Such orders will properly reflect WPPL's success on the contractual claims and its loss on the proprietary claims and reflect a discount for its loss on the laches and acquiescence defences. In addition, the effect of these orders will fairly reflect the realities of the parties' cases as litigated at trial and provide substantial justice as between them. 120 In forming the opinion that such apportionment orders are appropriate and just, I have had regard to the following matters: (a) WPPL failed entirely in respect of its proprietary claim; (b) albeit WPPL failed in its claim for Volume Royalties, it was otherwise entirely successful in respect of its claim in contract for the Revenue Royalties paid by Hamersley to HDIO on all ore produced and sold from all areas of ML 282SA; (c) although the value to WPPL of its entitlement to its share of royalties must be substantially less than what it would have been entitled to had it proved its proprietary claims, this point on its own is not material. Although the quantum of past royalties owed to WPPL is yet to be determined, the value of royalties that WPPL is owed and is entitled to over the life of the Hope Downs Joint Venture project is likely to be in the realm of hundreds of millions of dollars;28 (d) the factual and legal issues raised in respect of WPPL's contractual and equitable claims were so intertwined, so that it cannot be found that the work performed on each claim was separable; (e) in circumstances where there was significant and substantial overlap between the arguments made in relation to the royalty and proprietary claims, the court cannot be satisfied that it would be possible for a taxing officer to separately differentiate work carried out on one claim as opposed to the other; and (f) there was a significant and substantial overlap between the contractual and equitable claims and the defences to those 28 This finding has been made by regard to the confidential quantum calculations provided to the court by WPPL during the trial on liability. -- 37 of 56 -- [2026] WASC 101 (S) SMITH J Page 38 claims by the defendants in respect of the Original Acquisition Issue in both the Rhodes and WPPL proceedings. This overlap extended to the issues and factual circumstances relevant to dispose of Rhodes' claims in contract and in equity, and WPPL's contractual and proprietary claims. 121 I am not of the opinion that any assessment of costs should be fixed as a lump sum by a judge. Given that the assessment of costs will likely entail a very lengthy time consuming process requiring the review of an enormous volume of invoices, such a task is not an appropriate use of a judge's time. 4.3 Reserved costs - 2016 joinder application 122 In September 2016, Le Miere J reserved the costs of the joinder applications, and the costs thrown away by reason of the vacation of the previously listed trial dates for a 22 day trial to commence on 22 October 2016. 123 The HPPL Parties seek orders that WPPL pay the HPPL Parties' costs:29 (a) in relation to the joinder application chamber summons filed by WPPL on or around 12 August 2016; and (b) thrown away by reason of the vacation of the hearing dates. 124 The HPPL Parties claim the joinder of the Children has proven to have been unnecessary (given WPPL and Rhodes both failed to obtain any proprietary relief), and on this basis, the HPPL Parties should be allowed those reserved costs. This contention cannot be accepted. 125 When regard is had to the relevant circumstances, I am of the opinion that the HPPL Parties and WPPL should bear their own costs of WPPL's joinder application, and the HPPL Parties and WPPL should bear their own costs thrown away by reason of the vacation of the trial hearing dates commencing on 31 October 2016. These circumstances are that: (a) each of the arguments put by the HPPL Parties in opposing the orders for joinder were entirely rejected; 29 HPPL's minute of proposed orders dated 11 May 2026 [5]. -- 38 of 56 -- [2026] WASC 101 (S) SMITH J Page 39 (b) it was not found by Le Miere J that the joinder of the Children was necessary solely because of the proprietary claims; and (c) it was necessary for the Children to be joined so that they were bound by the final liability orders made by the court on 1 May 2016. 126 For the reasons already given in [44] - [48], the Children were joined to the proceedings not only because of their competing claims to ownership of the relevant tenements in the Federal Court proceedings, but also because their claims were inconsistent with WPPL's and Rhodes' royalty claims. 127 At the hearing of the joinder applications on 14 September 2016, Bianca Rinehart and John Hancock consented to their joinder on terms that the trial dates commencing 31 October 2016 be vacated. Ginia Rinehart opposed the joinder principally on the ground that she would be prejudiced by being joined. HPPL and HDIO submitted that the joinder application should be stood over until the outcome of a Federal Court appeal was known. 128 Prior to the hearing of the joinder application, the HPPL Parties filed written submissions dated 2 September 2016 in which they pointed out that the obligation to join all necessary parties to proceedings rests upon the plaintiff and were critical of WPPL and Rhodes in not bringing the applications in a timely manner. 129 The HPPL Parties also stated in the submissions that they opposed the joinder of the Children to the WPPL and Rhodes proceedings because joinder would inevitably lead to duplication of issues that were currently before the Federal Court, and would result in wasted time and wasted costs. They then went on to make a submission that if the Children were joined, the HPPL Parties would make an application under s 8(1) of the Commercial Arbitration Act 2012 (WA) for a stay of the proceedings. 130 The HPPL Parties also submitted in opposing joinder that if the Children were joined to the proceedings it would be necessary to timetable the amendment of pleadings, and for the Children to respond to the claims of WPPL and Rhodes. They stated that these steps would be wasted if the Federal Court claims were referred to arbitration, and the arbitration might need to be determined first. They also made a submission that if the Federal Court action were to proceed and the WPPL and Rhodes proceedings were cross-vested to the Federal Court -- 39 of 56 -- [2026] WASC 101 (S) SMITH J Page 40 pursuant to s 5(1)(b)(iii) of the Jurisdiction of Courts Cross-Vesting Act 1987 (WA), it would be unnecessary for the Children to plead to WPPL's and Rhodes' claims. 131 It was for these reasons, that in 2016 the HPPL Parties opposed joinder of the Children. They went on to submit that the only practical solution was not to proceed with the joinder of the Children, but to proceed to vacate the trial dates and do nothing until the outcome of an appeal to the Full Court of the Federal Court against a decision concerning referral to arbitration of the Children's Federal Court action was known. 132 Le Miere J rejected each of the arguments put by the HPPL Parties, and found the joinder application should not be deferred for the following reasons:30 The arguments advanced by Mr Finch [for the HPPL Parties] and Mr Flynn [for Ginia Rinehart] are not a sufficient reason for not ordering that the Children be joined as defendants. The Children claim in the Federal Court a proprietary interest in the tenements or mining interests which are inconsistent with those claimed by the plaintiffs and the defendants in the Consolidated Proceedings and the Rhodes Proceeding. They are necessary parties to the Consolidated Proceedings and the Rhodes Proceeding. The argument of HPPL and Ginia is in effect that although the Children are presently necessary parties, events may occur in the Federal Court and arbitration proceedings such that they will cease to be necessary parties. That is, of course, speculative. Many things might happen. The court must manage this action with the objects set out in the rules including promoting the just determination of the litigation, disposing efficiently of the business of the court and facilitating the timely disposal of its business. Furthermore, it is by no means clear that even if HPPL is successful in its arguments on the proviso hearing in the Federal Court and in a subsequent arbitration that the Children will cease to be necessary parties to the Consolidated Proceedings and the Rhodes Proceeding. Counsel for the Rhodes Parties, Mr Ryan, submitted that Justice Gleeson has held that some of the claims made by the applicants in the Federal Court Proceeding, which are inconsistent with claims made by the plaintiffs in the Consolidated Proceedings and the Rhodes Proceeding, are not covered by the arbitration agreements and hence will be determined in the Federal Court Proceeding. Mr Ryan pointed to the applicants' claim for an order that HDIO provide an account of profits to the applicants in relation to the benefits obtained by it from the ownership, use, possession and exploitation of the Hope Downs tenements or alternatively an order that HDIO pay equitable compensation to the 30 Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 7] [28]. -- 40 of 56 -- [2026] WASC 101 (S) SMITH J Page 41 applicants for their loss of opportunity to earn profits from the exploitation of the Hope Downs tenements. 5.0 Costs applications between Rhodes and WPPL in the Rhodes proceedings 133 Rhodes claims that Rhodes and WPPL should bear their own costs of the Rhodes proceedings as against each other, including in respect of any reserved costs. They say this is appropriate having regard to the following: (1) Rhodes' claim against WPPL arose because WPPL was one of the two partners that entered into, and subsequently amended, the 1969 Agreement with Rhodes. WPPL was a necessary party to the Rhodes' proceedings, both as a partner and as party to the original and Amended 1969 Agreement. WPPL was also a necessary party because WPPL alleged, in the WPPL proceedings, that it was part owner of sections 4 to 7 of ML 282SA (the East Angelas) and that if WPPL was successful in its ownership claims, WPPL would be liable to pay Rhodes a royalty. (2) The court ultimately found that WPPL owed a fiduciary duty to Rhodes founded upon the 1969 Agreement. Although those findings did not result in relief being awarded against WPPL in favour of Rhodes, they are nonetheless significant findings as to the legal and equitable obligations owed by the Partnership to Rhodes and involve a measure of vindication for Rhodes in its claim against WPPL. Throughout the proceedings, the position advanced by WPPL (consistently with that maintained by HPPL) was that the Partnership did not owe any fiduciary duty to Rhodes. (3) In any event, WPPL should not obtain a costs order in its favour when, to a significant extent, its work in defending the claim by Rhodes against the Partnership was duplicative of the work undertaken by its partner, HPPL, in defending the same claim. 134 In short, Rhodes argues there is no reason the two partners needed to incur two separate sets of legal costs in defending Rhodes' claim, particularly insofar as it concerned the proper construction of the 1969 Agreement between Rhodes and the Partnership, and the question of whether the Partnership owed a fiduciary duty to Rhodes. Rhodes argues WPPL's interests in those matters were largely aligned with -- 41 of 56 -- [2026] WASC 101 (S) SMITH J Page 42 those of its fellow partner, HPPL, and Rhodes should not be liable for WPPL's costs in respect of them. 135 WPPL seeks an order that Rhodes pay its costs of and incidental to the proceedings, to be assessed if not agreed. WPPL argues that since all of Rhodes' claims against WPPL were dismissed, it follows that WPPL is the successful party vis-à-vis Rhodes and is entitled to recover its costs of defending the Rhodes action. 136 WPPL argues that Rhodes' position on costs should be rejected for the following reasons: (1) that WPPL was a necessary party to the Rhodes proceedings has no bearing upon the question of who should bear WPPL's costs. Having been joined to the proceedings, WPPL successfully defended the claims Rhodes brought against it. The general rule, pursuant to O 66 r 1(1) of the Rules of the Supreme Court that costs should follow the event should be applied so that WPPL, as the wholly successful party, should receive its costs of, and incidental to, the Rhodes proceedings. (2) Rhodes' submission that WPPL's work in defending Rhodes' claims was duplicative of HPPL's work ignores the differing positions adopted by WPPL and HPPL in the Rhodes proceedings, and the outcomes. It is clear from the court's findings that WPPL's and HPPL's interests diverged and that their positions vis-à-vis Rhodes was different, because WPPL ultimately owed no liability to Rhodes while HPPL did. The court held that a breach of the Partnership's fiduciary obligations to Rhodes had taken place. But, importantly, it held that '[t]he facts found to support these findings was not conduct of WPPL. It was the conduct of HPPL and its alter ego, HDIO, that caused the breach of fiduciary duty to Rhodes.'31 Relief was ordered as against the HPPL Parties accordingly. That outcome of itself demonstrates that it was both justifiable and necessary for each partner to be separately represented in the Rhodes proceedings, and rebuts any suggestion that two sets of legal costs were unnecessarily incurred. (3) WPPL at all times accepted that the East Angelas reserves were 'reserves' within the meaning of cl 1 and cl 5 of the 1969 Agreement. WPPL's position was that if it succeeded in its 31 Liability Judgment [5669]. -- 42 of 56 -- [2026] WASC 101 (S) SMITH J Page 43 proprietary claim with respect to the East Angelas, then it accepted that a royalty would be payable by the Partnership on 50% of the former East Angelas reserves. Again, WPPL's position diverged on that central question from that of the HPPL Parties who disputed that the East Angelas reserves were 'reserves' for the purpose of the 1969 Agreement. It was both justifiable and necessary in those circumstances for WPPL to be separately represented. (4) The 'measure of vindication' to which Rhodes refers as a basis for its proposed costs order was entirely pyrrhic. While the court found that a fiduciary relationship was created by the terms of the 1969 Agreement, no relief was ordered against WPPL. That is because WPPL succeeded in defending any liability owed to Rhodes, as the court held that it was the conduct of the HPPL Parties that caused the breach of fiduciary duty to Rhodes. 137 Rhodes was unsuccessful in obtaining any relief as against WPPL on the basis that the contractual and equitable obligations that attached to the Partnership's opportunity to obtain mining tenements over the ground comprising Hope Downs 3 and the East Angelas areas (sections 4 to 7 of ML 282SA) was taken up by HPPL through HDIO.32 138 WPPL conceded that the East Angelas reserves were subsequently renamed Hope Downs 4, 5 and 6, and now form sections 4, 5, 6 and 7 of ML 282SA, and therefore are reserves for the purpose of cl 5C of the 1969 Agreement. However, WPPL actively engaged in a defence of Rhodes' claims in contract to royalties from ore produced from the Hope Downs 1 to 3 areas, and did not concede Rhodes' claim for royalites on ore produced from the East Angelas. 139 It is to be noted that WPPL failed in some important issues of construction of the 1969 Agreement. For example, in respect of the Hope Downs areas of ML 282SA, WPPL ran a case that none of sections 1, 2 or 3 of ML 282SA, or ML 282SA itself, was a 'reserve' within the meaning of cl 1 and cl 5 of the 1969 Agreement. That WPPL contended was because no section of ML 282SA, or ML 282SA itself, is a mineral lease which had issued from the temporary reserves listed in the second schedule to the 1969 Agreement, nor a mineral lease in respect of ground in the area of, or contiguous to, the temporary reserves in the second schedule. However, this factor would not and 32 10.5.3 of the Liability Judgment. -- 43 of 56 -- [2026] WASC 101 (S) SMITH J Page 44 does not disentitle WPPL to its costs as it was not a discrete nor severable issue. 140 Yet, there was, as Rhodes contends, a not insignificant duplication in the defences of WPPL and HPPL. WPPL and HPPL effectively ran the same defence that no fiduciary relationship arose as between Rhodes and the Partnership.33 This issue occupied a considerable portion of Rhodes' case and the defences of WPPL and the HPPL Parties.34 Both WPPL and HPPL substantially failed to make their complex arguments in defence of Rhodes' fiduciary claims. Taking a broad-brush approach of the degree of duplication of WPPL's and HPPL's defences, I would assess the duplication of submissions between them to be in the order of 40%. 141 However, it would not have been reasonable nor practical for WPPL to be represented by the same lawyers as the HPPL Parties in their defence of Rhodes' claims. Given that the Rhodes and WPPL proceedings were run and heard jointly, it is obvious that separate representation would not be possible. 142 Even if the proceedings were not heard jointly, separate representation of WPPL and the HPPL Parties could not have been unreasonable. This is because, the critical and material point on which WPPL was successful in their defence was their argument that on a proper construction of cl 5 of the 1969 Agreement, and in equity, any liability to Rhodes for a royalty on ore produced by the HPPL Parties (that is, not in Partnership with WPPL) from ML 282SA is to be borne by HPPL alone. If WPPL had failed to make out this argument in equity it would have been liable to Rhodes with HPPL for royalties. This was not the argument run by HPPL. Plainly, it would not have been in the interest of HPPL to run such an argument. On this point, there was clearly a conflict of interest between the HPPL Parties and WPPL. 143 In Milillio v Konnecke, Ipp JA referred to the following authorities which establish that even if defendants are acting reasonably in maintaining separate representation for some purposes, they may be 33 Liability Judgment [1538]. 34 Rhodes' fiduciary claims and the defences to these claims occupied over 120 pages of the Liability Judgment. It is noted that Rhodes' entire case and the defences to their case occupied approximately 520 pages of the Liability Judgment. -- 44 of 56 -- [2026] WASC 101 (S) SMITH J Page 45 deprived of part of their costs if they act unreasonably by duplicating costs on any particular matter:35 In Statham v Shephard (No 2) (1974) 23 FLR 244 Woodward J examined a number of authorities that discussed the factors governing the award of costs to successful defendants between whom there were no conflicts of interest. His Honour extracted the following principles from these authorities (at 246-247): '[T]he Court will not normally allow two sets of costs to defendants where there is no possible conflict of interest between them in the presentation of their cases. I would add to this basic proposition three provisoes. In the first place, if a conflict of interest appears possible but unlikely, the defendants should make any necessary enquiries from the plaintiff as to the way in which his case is to be put if this would resolve the possibility of conflict between defendants. (See In re Lyell [1941] VLR 207). Secondly, there could be circumstances in which, although the defendants were united in their opposition to the plaintiff, their relationship to each other might be such that they would be acting reasonably in remaining at arms length during the general course of litigation. Thirdly, even if defendants are acting reasonably in maintaining separate representation for some time or for some purposes, they may still be deprived of part of their costs if they act unreasonably by duplicating costs on any particular matter or at any particular time.' Statham v Shephard (No 2) is consistent with the approach of Kirby P in Credit Lyonnais Australia Ltd v Darling (1991) 5 ACSR 703. In the latter case, his Honour was inclined to hold that the successful respondents had virtually identical interests and ought not to have been represented separately at the trial and on the appeal. His Honour proposed no order in this regard, however, as he was of the view that the matter should be returned to the Commercial Division. Kirby P noted, nevertheless, that no point as to the parties' common interests and separate representation had been taken at trial, nor was the point raised before the hearing of the appeal commenced. Kirby P said (at 710) that the proper time to raise such an objection was 'in advance of, or at, the hearing.' His Honour considered that in the circumstances of that case it was too late for the matter to affect costs orders for past proceedings. 144 However, it was not unreasonable for WPPL and the HPPL Parties to be separately represented; even though the HPPL Parties raised 35 Milillo v Konnecke [2009] NSWCA 109 [109] - [110] (Macfarlan JA & Sackville AJA agreeing). -- 45 of 56 -- [2026] WASC 101 (S) SMITH J Page 46 extensive and comprehensive submissions on the Hope Downs 1 to 3 issues, and the fiduciary claims, it was still necessary for WPPL to engage with the same issues as the HPPL Parties. 145 There is no evidence that prior to the commencement of the trial, or at any time during the trial, Rhodes objected to the duplication of submissions on any point, or gave notice that any duplication in the submissions of the HPPL Parties and WPPL could result in adverse consequences as to costs. In the absence of such notice, given that it was not unreasonable for WPPL to be separately represented, and in the absence of any other conduct that is said to be unreasonable conduct by WPPL, WPPL should not be disentitled to be paid by Rhodes any portion of its costs of its defence of the Rhodes claims. 146 For these reasons, an order should be made that Rhodes pay WPPL's assessed costs associated with and incidental to WPPL's defence of the Rhodes proceedings, on a party/party basis. 6.0 Special costs orders - Principles 147 Ordinarily, the assessment of bills of costs charged by a legal practice is regulated by costs determinations made by the Legal Costs Committee. 148 When the proceedings were commenced the discretion to make a special costs order was regulated by s 280(2) of the Legal Profession Act 2008 (WA), which provided for orders to be made that costs were to be taxed without reference to the limits of an applicable costs determination by the Legal Costs Committee. That Act was repealed and replaced in 2022 by s 141(3) of Legal Profession Uniform Law Application Act 2022 (WA) (Uniform Act). Section 280(2) enacted in substantially identical terms the criteria specified in the repealed s 280(2) of the Legal Profession Act 2008 (WA). 149 By s 141(1) of the Uniform Act, except where a special costs order is made a party's recoverable costs are confined, in effect, by the limits imposed by the applicable costs determinations. 150 As Hill J remarked in Metalicity Ltd v Allen [No 2]:36 Given the identical language of these provisions, it is my view that the principles that govern the making of special costs orders, which are well established, continue to apply. 36 Metalicity Ltd v Allen [No 2] [2022] WASC 420 (S) [12] - [13]. -- 46 of 56 -- [2026] WASC 101 (S) SMITH J Page 47 The questions for the court in considering an application for special costs are: (a) First, is the maximum amount allowable under the applicable costs determination inadequate in the sense that there is a fairly arguable case that, on taxation, costs may properly be allowed in an amount greater than that maximum amount? (b) Second, does the inadequacy of the costs allowable under the costs determination arise because of the unusual difficulty, complexity, or importance of the matter? 7.0 Special Costs orders sought by Rhodes and WPPL 151 I am satisfied, in accordance with the well-established criteria in relation to s 141(3) of the Uniform Act, that it is appropriate for special costs order to be made: (a) against Rhodes in favour of WPPL, and in favour of Rhodes as against Bianca Rinehart and John Hancock in the Rhodes proceedings; and (b) against the HPPL Parties and Bianca Rinehart and John Hancock in favour of WPPL in the WPPL proceedings. 152 In my opinion, the rates in the relevant determinations are inadequate because of the unusual difficulty, complexity and importance of the matters raised in both the Rhodes and WPPL proceedings. In making this finding I have had regard to the well-established principle that a court may permissibly bring its experience to bear in terms of reaching conclusions upon the likely inadequacy of the costs recoverable absent the issuing of a special costs order. 153 As to each of the relevant items in Table B of the cost determinations, it is clear that the Table B limits in each determination should be lifted because of the voluminous and complex extent of work required to be performed in the conduct of this mega litigation. 154 Rhodes does not object to the lifting of the hourly rates for senior counsel, but does so object for junior counsel, those instructing counsel, and those assisting solicitors, including clerks and paralegals. 155 I am not prepared to uplift the hourly rates in Table A of the relevant determinations for solicitors (senior, junior and restricted), clerks and paralegals. The court should not lend its imprimatur to the -- 47 of 56 -- [2026] WASC 101 (S) SMITH J Page 48 conduct of litigation of those with what appears to be endless resources without reference to cost.37 If a party chooses to instruct solicitors that charge much higher rates than others in the market, the effect of the cost of that decision should not in general be imposed on an unsuccessful party. 156 I will, however, allow an uplift of 50% for junior counsel and the removal of the limit in its entirety for senior counsel. But for what appears to be the assent by the parties to the main proceedings to a complete uplift of rates for senior counsel, I would not have allowed the complete removal of the limit of the hourly rates for senior counsel but instead would have only allowed an uplift of 50%.38 8.0 Costs of the third-party proceedings 157 The differences between the HPPL Parties and Hamersley relates only to the special costs order sought by the HPPL Parties under s 141(3) of the Uniform Act. 158 Hamersley accepts that there should be an order that Hamersley pay the HPPL Parties' costs of each third-party action, to be assessed if not agreed. However, Hamersley disagrees with the HPPL Parties as to the extent to which there should be special costs orders with respect to the third-party proceedings, and submits that special costs orders are only warranted and appropriate with respect to counsel fees for trial. 159 The HPPL Parties seek blanket special costs orders lifting all limits, to the effect that any assessment of its costs be undertaken without reference to the applicable time and amount limits and maximum hourly and daily charges. They say that will allow reasonable costs incurred by solicitors, counsel and other disbursements to be recovered on assessment, even if they exceed the maximum limits generally applicable to ordinary matters. 160 The HPPL Parties contend that the third-party proceedings involved highly technical issues of contractual construction, arising in the context of a detailed, lengthy and complex suite of joint venture documents. This they say is amply demonstrated by: (a) the length and complexity of the written submissions of the parties (being 60 pages); 37 See Sino Iron Pty Ltd v Mineralogy Pty Ltd [2022] WASC 151 [20], [45] (Quinlan CJ). 38 See the authorities referred to below in [174]. -- 48 of 56 -- [2026] WASC 101 (S) SMITH J Page 49 (b) the highly detailed and complex nature of the legal arguments addressed orally; and (c) the carefully reasoned reasons for judgment. 161 The HPPL Parties claim that the complex and large nature of the third-party proceedings concerning the passing on of liabilities from the main proceedings, caused costs to be incurred beyond the scale. They say that the court should comfortably conclude that it is appropriate to make the orders sought by the HPPL Parties which will allow them to recover their reasonable costs, rather than the orders sought by Hamersley, which they say arbitrarily limits the lifting of the scales to counsel. 162 Turning to whether the criteria for a special costs order is met, it is noted that it is established that the word 'unusual' qualifies only the term 'difficulty' and not the terms 'complexity or importance'.39 Importance is understood to only encompass importance to the parties and not importance to the public or a sector of the public.40 163 In Electricity Generation and Retail Corporation Trading as Synergy v Woodside Energy Ltd, Martin CJ explained:41 The question which must be addressed either in respect of individual items or a costs determination as a whole is whether the costs allowable in respect of the work done are inadequate because of the particular characteristic or characteristics of the 'matter' which has or have enlivened the jurisdiction of the court - that is, unusual difficulty, complexity or importance. 164 Hamersley concedes that the third-party proceedings may have been of significance and importance to the parties, but says that the third-party proceedings involved confined issues of contractual construction in circumstances where Hamersley largely accepted liability. Further, in contrast to the main proceedings, the substantive steps taken in the third-party proceedings were limited. 165 Hamersley refers to the following relevant matters which show that the pleaded issues and their proof involved relatively 39 Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66 (S) (the court); applied in Santos Offshore Pty Ltd v Apache Oil Australia Pty Ltd [2015] WASC 242 (S) [9] (Pritchard J); applied in Browne v Browne [2017] WASC 375 (S) [66] (Smith J). 40 Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) [17] - [19] (Martin CJ); Browne v Browne [66] (Smith J). 41 Electricity Generation and Retail Corporation Trading as Synergy v Woodside Energy Ltd [2014] WASC 469 (S) [12]; applied in Browne v Browne [69] (Smith J). -- 49 of 56 -- [2026] WASC 101 (S) SMITH J Page 50 straightforward points of the proper construction of a single and relatively confined conditional obligation in a commercial contract. These matters are: (a) the statement of claim filed by the HPPL Parties in each third-party action were less than 10 pages long and were each largely in the same form with respect to the relevant issues of contractual construction; (b) in its defences, Hamersley largely admitted the majority of HPPL pleas in their statements of claim; (c) the HPPL Parties did not serve any replies until shortly before the trial of the third-party action (in October 2023), when short replies were provided; (d) there were no lay witness statements or witness outlines served in the third-party proceedings. The only expert evidence filed and served in the third-party proceedings was mapping evidence as to the location of the relevant tenements that interrelated with the mapping evidence filed and served in the main proceedings. This evidence was not in contest and was not the subject of cross-examination; (e) there was one contested interlocutory issue in the third-party proceedings. This was whether an order should be made that Hamersley, should be bound by the outcome of the main proceedings, and whether Hamersley should discover documents relevant to the HPPL Parties' defences in the main proceedings.42 A costs order has already been made requiring Hamersley to pay the HPPL Parties' costs of and incidental to the hearing of this application on 15 February 2016.43 No special costs order was made at that time; (f) there was no discovery in the third-party proceedings; (g) the only document tendered in the third-party proceedings was the Co-operation Agreement; (h) the combined submissions filed by the HPPL Parties for the trial of the third-party proceedings were only around 25 pages; 42 Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 5] [2016] WASC 58. 43 See order 34 of the orders made on 26 February 2016 in each proceeding. -- 50 of 56 -- [2026] WASC 101 (S) SMITH J Page 51 (i) Hamersley filed two sets of submissions of approximately 35 pages combined with respect to third-party proceedings; (j) the trials of the third-party proceedings were heard together and completed in less than a day on 13 December 2023; (k) although the Co-operation Agreement was in evidence, the third-party proceedings involved only construction of cl 4.11 and item 1(a) of sch 10, having regard to the defined terms and sch 8 referred to in those clauses. Construction of these terms did not require significant regard to the whole of the Co-operation Agreement; and (l) although one of the three main issues raised in the third-party proceedings fell away because of findings made in the main proceedings, the resolution of the remaining issues in the third-party proceedings occupied only 14 pages of the 1,600 pages of the reasons for decision given in the trial on liability in the Rhodes and WPPL proceedings. 166 There is considerable merit in Hamersly's submissions. Contrary to the submission put by the HPPL Parties, the third-party proceedings did not raise any unusually difficult issue, nor were the proceedings complex when compared to the usual commercial matters that come before this court. 167 Although it cannot be found that the third-party proceedings were usually difficult or complex, I agree that these proceedings were of significant importance to the parties to the Co-operation Agreement. 168 The resolution of the third-party proceedings involved who would bear the liability to pay significantly substantial sums to Rhodes and WPPL for past and future royalties and in what proportions would be deemed to be Assumed Liabilities for the purposes of cl 4.11 and item 1(a) of sch 10 of the Co-operation Agreement. 169 Although the issues raised in the third-party proceedings cannot properly be found to involve any unusual difficulty or real complexity, the history of the third-party proceedings reveals that there have been many appearances required by the parties as a consequence of the third-party proceedings being tried with and case managed with the -- 51 of 56 -- [2026] WASC 101 (S) SMITH J Page 52 main proceedings. This history is recorded in an affidavit sworn by David Gordon Anthony on 18 May 2025, as follows:44 The HPPL Parties filed and served on Hamersley a Third Party Notice on 22 February 2011 in proceeding CIV 3041 of 2010. This commenced the Third Party Proceedings. On 8 June 2011, the HPPL Parties filed a statement of claim in the Third Party Proceedings as against Hamersley in proceeding CIV 3041 of 2010. On 6 June 2012, Hamersley filed a defence to the HPPL Parties' statement of claim in the Third Party Proceeding in proceeding CIV 3041 of 2010. On 24 May 2013, the Honourable Justice Le Miere ordered that Hamersley be entitled to attend and take part in the Main Proceedings. On 18 November 2013 … the Rhodes Parties … commenced the Rhodes Proceedings by way of a writ of summons against HPPL, as the First Defendant, and WPPL, as the Second Defendant, and HDIO, as the Third Defendant. On 8 October 2014, following the consolidation of the WPPL Proceedings, the HPPL Parties filed a substituted statement of claim in the Third Party Proceeding. By that substituted statement of claim, the HPPL Parties sought as against Hamersley: a. a declaration that the HPPL Parties are entitled to contribution from Hamersley in the amount of 50% of any liability the HPPL Parties incur to WPPL (including for interest and costs) in respect of 'Revenue Royalty' received by HDIO as that term is defined in the Co-operation Agreement; and b. a declaration that Hamersley is liable to contribute 50% of any liability the HPPL Parties incurs to WPPL in respect of 'Revenue Royalty' that will in the future be received by HDIO, subject to a cap provided for in the Co-operation Agreement. On or around 2 December 2014, Hamersley filed a defence to the HPPL Parties' substituted statement of claim in the Third Party Proceedings. … On 10 June 2015, the HPPL Parties served upon Hamersley a statement of claim in respect of the Third Party Proceedings in the Rhodes Proceedings. This statement of claim was in similar terms to the statement of claim filed in respect of the Third Party claim in the WPPL Proceedings. 44 Paragraphs 12 to 28. -- 52 of 56 -- [2026] WASC 101 (S) SMITH J Page 53 On 26 October 2015, Hamersley filed a defence to the HPPL Parties' statement of claim in respect of the Third Party Proceeding in the Rhodes Proceedings. Numerous subsequent orders regarding timetabling, evidence and confidentiality in the Third Party Proceedings have since been made, including [on and between 14 December 2021 and 7 May 2023]. … On 15 February 2016, Le Miere J heard an application by the HPPL Parties that, although orders were made on 24 May 2013 and 19 June 2015 that it be entitled to attend and take part at the trial of the action, an order should also be made that Hamersley be bound by any judgment delivered in the Rhodes Proceedings and WPPL Proceedings … On 26 February 2016, Le Miere J published his reasons for judgment, making orders that Hamersley be bound by the outcome in each of these proceedings. His Honour also made orders that Hamersley give discovery of documents on the terms sought by the HPPL Parties. On 1 March 2023: a. the HPPL Parties filed an amended substituted statement of claim in respect of the Third Party Proceedings in the WPPL Proceedings, the effect of which joined the Children to the Third Party Proceedings; and b. the HPPL Parties filed a substituted statement of claim in respect of the Third Party Proceedings in the Rhodes Proceedings, the effect of which joined the Children to the Third Party Proceedings. On 18 April 2023, Hamersley: a. served a defence to the substituted statement of claim in the Third Party Proceedings in the Rhodes Proceedings; b. served a defence to the amended substituted statement of claim in respect of the Third Party Proceedings in the WPPL Proceedings. On 13 October 2023, the HPPL Parties: a. served a reply to the defence to the amended substituted statement of claim in respect of the Third Party Proceedings in the WPPL Proceedings; and b. served a reply to the defence to the substituted statement of claim in respect of the Third Party Proceedings in the Rhodes Proceedings. -- 53 of 56 -- [2026] WASC 101 (S) SMITH J Page 54 170 In circumstances where the case management of the third-party proceedings extended over 12 years, it is open to find that the costs allowable for the work performed are inadequate because of the particular characteristic of the third-party proceedings being tied to the main proceedings. As a result of this factor, during a very lengthy period of time, many appearances in court were required. It was necessary to prepare and confer about many orders (most of which were made by consent). 171 In addition, it was the fact that the third-party proceedings were tried with the main proceedings which led to the necessity of engaging highly experienced senior counsel who led the HPPL Parties' defence in the main proceedings to also lead the arguments made in the third-party proceedings. 172 For these reasons, taking account of the lack of unusual difficulty or complexity in the legal issues raised in the third-party proceedings, the only special costs order warranted by the importance of the third-party proceedings is with respect to: (a) the hourly and daily rates imposed on counsel fees in Table A for preparation for trial, and for the first day of trial in Table B of the relevant cost determinations; and (b) an uplift of the limits prescribed in Table B of the relevant cost determinations, but, other than counsel, not the rates prescribed in Table A. 173 Taking account of the matters referred to above in [155], there should not be a general uplift of all costs. This is because a general uplift cannot be justified when the relevant circumstances applying to the third-party proceedings are considered, and the interests of justice include the need to keep the costs of litigation generally within reasonable bounds. -- 54 of 56 -- [2026] WASC 101 (S) SMITH J Page 55 174 In my view, although the third-party proceedings were not complex, consistent with previous decisions of this court concerning complex civil litigation, the maximum limits of amounts for counsel in Table B of the relevant cost determinations should only be increased by 50%.45 45 See Northwest Pilots Pty Ltd atf Port Hedland Pilots Unit Trust t/as Port Hedland Pilots v Daniel [2023] WASC 73 (S) [21] (Hill J); Sino Iron Pty Ltd v Mineralogy Pty Ltd [48], [50], [54] and [57] (Quinlan CJ); JKC Australia LNG Pty Ltd v CH2M Hill Companies Ltd [No 2] [2020] WASCA 112 (S) [11(b)] (Buss P, Beech & Vaughan JJA); CBI Constructors Pty Ltd v Chevron Australia Pty Ltd [2023] WASCA 1; Sino Iron Pty Ltd v Mineralogy Pty Ltd [2026] WASCA 71 (S) [42] - [43] (Quinlan CJ, Vaughan JA & Smith AUJ). -- 55 of 56 -- [2026] WASC 101 (S) SMITH J Page 56 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. NV Associate to the Honourable Justice Smith 30 JUNE 2026 -- 56 of 56 --