MINERALOGY PTY LTD -v- SINO IRON PTY LTD [2026] WASC 184

[2026] WASC 184 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : MINERALOGY PTY LTD -v- SINO IRON PTY LTD [2026] WASC 184 CORAM : LUNDBERG J HEARD : 7 MAY 2026 DELIVERED : 11 MAY 2026 FILE NO/S : CIV 1990 of 2025 BETWEEN : MINERALOGY PTY LTD Plaintiff AND SINO IRON PTY LTD First Defendant KOREAN STEEL PTY LTD Second Defendant CITIC LIMITED Third Defendant FILE NO/S : CIV 1991 of 2025 BETWEEN : MINERALOGY PTY LTD Plaintiff AND SINO IRON PTY LTD First Defendant KOREAN STEEL PTY LTD -- 1 of 16 -- [2026] WASC 184 Page 2 Second Defendant CITIC LIMITED Third Defendant Catchwords: Practice and procedure - Competing directions sought at case management conference as to discovery process in both actions - Discovery regime sought by plaintiff in the context of the first and second defendants' proposal for a trial of separate questions - Proposed separate questions appear to be focused on proper construction of contractual instruments - Case management considerations - Whether to order any discovery at this stage of proceedings and, if so, the extent of such discovery - Turns on own facts Legislation: Rules of the Supreme Court 1971 (WA), O 1 r 4A and 4B, O 32 r 4 Result: Discovery orders made in both action in terms set out in Attachment A. Category: B Representation: CIV 1990 of 2025 Counsel: Plaintiff : D F Villa SC and T R March First Defendant : D J Batt KC and M C Roberts Second Defendant : D J Batt KC and M C Roberts Third Defendant : L A Warnick SC and R O'Brien -- 2 of 16 -- [2026] WASC 184 Page 3 Solicitors: Plaintiff : Mineralogy Pty Ltd First Defendant : Allens Second Defendant : Allens Third Defendant : Herbert Smith Freehills Kramer CIV 1991 of 2025 Counsel: Plaintiff : D F Villa SC and T R March First Defendant : D J Batt KC and M C Roberts Second Defendant : D J Batt KC and M C Roberts Third Defendant : L A Warnick SC and R O'Brien Solicitors: Plaintiff : Mineralogy Pty Ltd First Defendant : Allens Second Defendant : Allens Third Defendant : Herbert Smith Freehills Kramer Case(s) referred to in decision(s): Electricity Generation Corporation t/as Verve Energy v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 Maek Pty Ltd v Ibrahim [2022] WASC 285 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104 Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 10] [2025] WASC 130 -- 3 of 16 -- [2026] WASC 184 Page 4 Table of Contents Introduction ................................................................................................................................ 5 The nature of the actions ............................................................................................................ 5 Separate question applications.................................................................................................... 6 The parties' respective positions as to discovery orders ............................................................. 8 Whether discovery should be ordered at this stage?................................................................. 10 Conclusion and orders .............................................................................................................. 13 ATTACHMENT A Phase 1 Discovery Orders made in CIV 1990 of 2025 ............................ 14 -- 4 of 16 -- [2026] WASC 184 LUNDBERG J Page 5 LUNDBERG J: Introduction 1 These reasons concern whether any discovery orders should now be made in these actions. Senior counsel for each of the parties made submissions on this issue at the case management conference held on 7 May 2026. 2 Whether a discovery regime should be ordered is to be considered in the context of interlocutory applications foreshadowed by the first and second defendants, by which separate questions in both actions would be heard and determined, pursuant to O 32 r 4 of the Rules of the Supreme Court 1971 (WA) (RSC). The separate questions are focused on the contractual rights and obligations of the first and second defendants and appear to be focused on the proper construction of certain contractual provisions. 3 For the following reasons, I consider that a discovery regime should be ordered, albeit with a narrow scope. The nature of the actions 4 The parties in both actions are well-resourced litigants. 5 The plaintiff is the registered holder of certain mining leases in the Pilbara region of Western Australia, situated near Cape Preston.1 The first and defendant are the operators of the large-scale magnetite iron ore mine which operates on those mining leases, pursuant to two agreements described as the Mining Right and Site Lease Agreements or MRSLAs.2 The third defendant is the guarantor of the obligations of the first and second defendants, under the Fortescue Coordination Deed.3 6 Both actions concern large value claims made by the plaintiff against the defendants for breaches of contract and for tortious conversion, arising from the alleged conduct of the first and second defendants connected with the operations at the mine. It is not presently necessary to describe in detail the pleaded issues in the actions in order to resolve the interlocutory dispute between the parties. Some background context to these actions can be seen in the 1 Statement of claim in CIV 1990 of 2005 (1990 SOC) [5]; and Statement of claim in CIV 1991 of 2025 (1991 SOC) [5]. 2 1990 SOC [10] – [16]; 1991 SOC [10] – [16]. 3 1990 SOC [17] – [18]; 1991 SOC [17] – [18]. -- 5 of 16 -- [2026] WASC 184 LUNDBERG J Page 6 interlocutory reasons of the court published in an earlier proceeding.4 Additionally, the following short descriptions provide some context. 7 In action CIV 1990 of 2025, the plaintiff's allegations focus on the use of material mined from the 'Mine Area', or mined from the 'Mine Area' during the mining of the ore body, for the construction and maintenance of infrastructure. The plaintiff alleges that some percentage of the material was 'Magnetite Ore' and some percentage was 'Low Grade Material'.5 This conduct is pleaded to be a breach of the MRSLAs as well as wrongful interference with the plaintiff's rights sufficient to amount to conversion.6 8 In action CIV 1991 of 2025, the plaintiff alleges the first and second defendants failed to process all 'Magnetite Ore' mined from the 'Mine Area', or mined from the 'Mine Area' during the mining of the ore body, and have instead sent quantities of this ore to waste.7 The plaintiff pleads that this unprocessed ore would otherwise have attracted a royalty and the failure to pay the royalty is a breach of its contractual rights.8 9 In both actions, the plaintiff also advances claims against the third defendant pursuant to the guarantee obligations in the Fortescue Coordination Deed.9 Separate question applications 10 At the case management conference on 7 May 2026, the first and second defendants, supported by the third defendant, foreshadowed applications by which separate questions apparently concerning the proper construction of the contractual provisions pleaded in the actions would be heard and determined. 11 The court made orders at the conclusion of the hearing to program the separate question applications to a hearing in or after August 2026.10 The parties were not in disagreement as to the directions which ought be made in that regard, although the plaintiff expressly reserved its position as to the utility of the proposed questions. Pursuant to the orders made, the first and second defendants are to take various steps to 4 Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 10] [2025] WASC 130. 5 1990 SOC [52] – [63]. 6 1990 SOC [58] and [63]. 7 1991 SOC [50] – [55]. 8 1991 SOC [52]. 9 1990 SOC [64] – [73]; 1991 SOC [56] – [65]. 10 Folio 21 in CIV 1990 of 2025; Folio 19 in CIV 1991 of 2025. -- 6 of 16 -- [2026] WASC 184 LUNDBERG J Page 7 file the applications, together with any necessary affidavit evidence and submissions, with directions made to facilitate the plaintiff and third defendant filing submissions and affidavit material in due course. 12 The formulation of the proposed separate questions indicates they are both primarily directed at matters of contractual construction, although further argument is needed to properly describe and define the questions. Whether the separate questions should ultimately be ordered is a matter in respect of which the parties will further address the court at a hearing to be scheduled in August 2026. For present purposes, it is sufficient to describe the proposed separate questions as follows. 13 In action CIV 1990 of 2025, the proposed question is directed at whether the first and second defendants have the right, by reason of several instruments, to use extracted material which is not to be 'taken', for the construction and maintenance of infrastructure in their 'Projects', without payment of further consideration to the plaintiff. This includes use of the extracted material in the construction and maintenance of 'Processing Facilities' and the construction of tailings storage facility walls. The instruments referred to in the question are the 'Project Agreements', the 'Approved Proposals' and the 'State Agreement'. 14 In action CIV 1991 of 2025, the proposed question is directed at whether the first and second defendants are obliged, by reason of provisions in the MRSLAs and certain pleaded implied terms and duties, to take for processing or to process, all 'Magnetite Ore' mined from the 'Mine Area' and all 'Magnetite Ore' mined from the 'Mine Area' during the mining of the ore body. The implied terms are the 'Co- operation Implied Term' and the 'Processing Implied Term'. 15 A number of the terms to which I have referred are defined in the underlying contractual instruments, but it is not presently necessary to set out those definitions. 16 I understand the first and second defendants will contend that the determination of the separate question in each action will, if answered favourably to them, dispose of the entirety of the actions and 'obviate the need for a long trial and attendant interlocutory processes (including extensive and costly discovery)'.11 11 First and second defendants' submissions dated 1 May 2026 [7]. -- 7 of 16 -- [2026] WASC 184 LUNDBERG J Page 8 The parties' respective positions as to discovery orders 17 The court has been asked by the plaintiff in both actions to make orders to give effect to a discovery regime by which categories of discovery would be agreed by the parties, alternatively resolved and determined by the court. 18 The point of difference between the parties concerns the present utility of the discovery regime promoted by the plaintiff, which involves directions being made as follows: (a) for discovery to be given electronically and for the plaintiff to serve on the defendants its document exchange protocol, with the defendants then responding to that protocol; (b) for the parties to exchange their proposed categories of discovery on all issues in both actions; (c) a regime for the parties to agree or disagree as to the categories of discovery, and to respond (and then reply) to each other regarding the categories; (d) a regime for the parties to confer as to the document exchange protocol, the identification of the categories of discovery and the timing of the provision of discovery; (e) the plaintiff would ultimately file a table recording the above matters (as to agreements and disagreements) together with submissions and supporting affidavits in support of its position, and the defendants would file submissions and affidavits in response; and (f) the disputes between the parties as to discovery would then be resolved at a hearing on or after 3 August 2026. 19 Senior counsel for the plaintiff submits that the proposed separate questions should not be seen as pure questions of construction to be determined only by reference to the terms of the instruments. The plaintiff submits the instruments must be construed in their full context which will require recourse to extrinsic material including pre- contractual communications and surrounding circumstances. 20 In its outline of submissions, the plaintiff contended as follows:12 12 Plaintiff's submissions dated 1 May 2026 [3]. -- 8 of 16 -- [2026] WASC 184 LUNDBERG J Page 9 To the extent there may be categories of discovery which call for documents which are relevant and admissible to that construction exercise the discovery categories need to be identified (which the plaintiff’s proposed orders provide for) before any hearing of the first and second defendants' application for an order that the proposed questions be tried separately 21 The plaintiff's primary position was that the discovery processes in both actions - across all issues, not only those relevant to the construction exercise, should now be undertaken. In this regard, the plaintiff acknowledged a broad approach to discovery might mean some categories 'become irrelevant or otiose in the event the separate questions are determined in a particular way'.13 However, it was said that 'any wasted expenditure would be minimal and outweighed by the benefit of ensuring the proceedings progress in a meaningful way in the interim'.14 22 For their part, the first and second defendants indicated they would not be seeking discovery for the purposes of the determination of the proposed separate questions. Senior counsel maintained the proposed questions were purely ones of contractual construction requiring no evidence beyond the contractual instruments themselves.15 Senior counsel referred to the previous litigation between the parties, the previous discovery exchanged by the parties, and previous judgments of this court which have referred to the pre-contractual communications between the parties, in support of the submission that the plaintiff ought be well aware at this juncture of the documents (if any) which might inform questions of construction. 23 Ultimately, the first and second defendants properly recognised through senior counsel that they could not preclude the plaintiff, at this stage of the proceeding, from contending there should be discovery to some extent, in order to facilitate the hearing of the separate question applications.16 The first and second defendants urged the court to confine any discovery regime at this stage, and to refrain from ordering a process by which the parties are to confer in relation to discovery categories for all issues in each action. 13 Plaintiff's submissions dated 1 May 2026 [4]. 14 Plaintiff's submissions dated 1 May 2026 [4]. 15 ts 56 – 57, 59 (7 May 2026). 16 ts 56 (7 May 2026). -- 9 of 16 -- [2026] WASC 184 LUNDBERG J Page 10 24 The position of the first and second defendants is supported by the third defendant.17 25 All parties thus recognise that the discovery directions should be seen in the context of proposed applications in both actions initiated by the defendants for the consideration by the court of separate questions. In essence, the plaintiffs promote a primary approach by which the discovery process and the separate question applications would be programmed in parallel. The defendants fundamentally promote a singular approach, confined to the latter applications, but recognise the inability to foreclose the plaintiff's pursuit of some discovery. Whether discovery should be ordered at this stage? 26 The appropriate approach for the court to adopt at this stage is to accede to the plaintiff's proposal that a discovery process be initiated but to confine that process to such discovery as may be relevant to the determination of the proposed separate questions. 27 The following reasons explain why I consider a narrow approach is preferable at this stage. 28 First, it is well-established that a party does not have a strict entitlement to an order for discovery, or for categories of discovery to be ordered. Whether to make such an order is discretionary, to be exercised having regard to the timely and cost effective disposal of litigation. The goal and objects in O 1 r 4A and 4B RSC must be considered in this context, with the ultimate test being whether discovery is necessary for fairly disposing of the proceedings.18 29 Second, the formulation of a discovery regime at this stage of the proceedings which extends to all issues in both actions would be premature given the proposed separate question applications. There is the prospect of wasted expenditure being incurred by the parties given the proposed applications. Although I recognise these parties are all well-resourced, steps in the litigation which might prove otiose should be avoided where possible. 30 Third, it may be necessary in due course for more fulsome discovery to be ordered, subject to the fate of the separate question applications, which could lead to a delay in the overall discovery process and the progress of the proceedings. This factor, that is the 17 ts 64 (7 May 2026) and email from HSF Kramer to the court sent on 4 May 2026. 18 Maek Pty Ltd v Ibrahim [2022] WASC 285 [25]. -- 10 of 16 -- [2026] WASC 184 LUNDBERG J Page 11 overall delay in the proceedings, must be seen in context. In particular, the claims advanced by the plaintiff are not new, having previously been agitated by the plaintiff, and were the subject of an amendment application in April 2025 in other proceedings. The claims are also money claims, not having a particular urgency associated with them. 31 Fourth, the separate questions presently formulated by the first and second defendants appear narrow in ambit, confined to contractual questions, but as I have said above, more argument is required in this regard to properly understand the scope of the questions. Assuming the questions are narrow, and focused on construction questions, there are recognised limits which will confine the scope of the construction exercise to be undertaken by the court in construing commercial contractual instruments, particularly as to the relevance and admissibility of non-contractual documents such as pre-contractual negotiations. 32 It may be accepted that the construction process will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract, and that an appreciation of the commercial purpose or objects will be facilitated by an understanding of the genesis of the transaction, the background, and the context.19 It has been observed that, ordinarily, the process of construction is possible by reference to the contract alone.20 However, sometimes, recourse to events, circumstances and things external to the contract is necessary.21 33 The applications for the separate questions which have been proposed by the first and second defendants will need to be assessed by reference to the well-established, principled limits on the construction exercise. If the separate questions are ordered, the determination of those questions will be subject to these limits. 34 As matters presently stand, the discovery which is likely to be relevant to the constructional exercises is not likely to be wide-ranging, but its precise boundaries are not presently known. 35 As the court observed at the case management hearing, the pleadings in both actions do not expressly refer to any specific 19 Electricity Generation Corporation t/as Verve Energy v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 [35] and [41]; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104 [47] – [50]. 20 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [47]. 21 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [49]. -- 11 of 16 -- [2026] WASC 184 LUNDBERG J Page 12 documents or matters which are asserted by the plaintiff as informing, or potentially informing, the content of the contractual provisions, the contractual duties, the pleaded implied terms, or the pleaded contractual duty of good faith. Senior counsel for the plaintiff submitted that this will not confine or limit the constructional exercise. Further argument on the scope of the discovery required for the separate questions can occur in the context of the hearing of the applications for those questions. 36 For the foregoing reasons, it would be wrong to reject the plaintiff's proposal for discovery insofar as it concerns documents which might inform the constructional exercises which form part of the proposed separate questions. 37 But the regime should be appropriately tailored for this purpose. 38 This can be achieved by directing the parties to exchange positions as to the discovery categories relevant to the proposed separate questions in advance of the hearing of those applications, so that full argument can be heard as to whether those categories should be ordered in advance of the separate question hearing (in the event the court accedes to the first and second defendants' applications). 39 The balance of the discovery can be held over until the outcome of the separate question applications is known (or the outcome of the separate questions themselves is known, if the questions are ordered). 40 I will therefore make orders which structure the discovery in the actions into three phases, subject to any further orders which may be made in due course, as follows: (a) The first phase will require the parties to confer in respect of the categories of discovery relevant to the determination of the proposed separate questions. (b) The second phase will require the parties to provide discovery of those documents determined by the court to be relevant to the determination of the separate questions. The discovery regime to be ordered for the second phase can be the subject of argument at the hearing of the separate question applications, with the parties making submissions and filing evidence for this purpose in accordance with the regime which was ordered on 7 May 2026. I have proposed a timetable for the exchange of categories in June and July 2026 which I anticipate is -- 12 of 16 -- [2026] WASC 184 LUNDBERG J Page 13 complementary to the timetable which was ordered on 7 May 2026. The hearing of the separate question applications will be listed for two full days to accommodate the additional argument on these issues. (c) The third phase relates to discovery of all remaining issues in the actions. Orders in this regard can be considered once the fate of the separate question applications is known. Conclusion and orders 41 The court accordingly made orders in action CIV 1990 of 2025 as set out in Attachment A to these reasons. Similar orders were also made in action CIV 1991 of 2025. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. IR Associate to the Hon Justice Lundberg 11 MAY 2026 -- 13 of 16 -- [2026] WASC 184 LUNDBERG J Page 14 ATTACHMENT A Phase 1 Discovery Orders made in CIV 1990 of 2025 -- 14 of 16 -- [2026] WASC 184 LUNDBERG J Page 15 -- 15 of 16 -- [2026] WASC 184 LUNDBERG J Page 16 Attachments to the orders of the court ATTACHMENT A DEFINITIONS ATTACHMENT B PHASE 1 DISCOVERY SCHEDULE -- 16 of 16 --