Court backed a discovery process then carved it into three phases
The WA Supreme Court narrowed discovery in Mineralogy’s long-running iron ore dispute with Sino Iron and CITIC, phasing it pending trial of separate questions.
In Mineralogy Pty Ltd v Sino Iron Pty Ltd [2026] WASC 184, Lundberg J ordered a discovery regime in both actions but deliberately narrowed its scope, structuring the process into three phases pending applications for the trial of separate questions.
The dispute centred on the large-scale magnetite iron ore mine in the Pilbara, near Cape Preston. Mineralogy held the mining leases; Sino Iron and Korean Steel operated the mine under two Mining Right and Site Lease Agreements (MRSLAs). CITIC Limited guaranteed the operators' obligations under the Fortescue Coordination Deed.
Both actions advanced large-value claims for breach of contract and tortious conversion. In CIV 1990 of 2025, Mineralogy alleged the operators wrongly used mined material – some of it magnetite ore, some low-grade material – to construct and maintain infrastructure. In CIV 1991 of 2025, it claimed the operators failed to process all magnetite ore and instead sent quantities to waste, depriving Mineralogy of royalties.
At a case management conference on 7 May 2026, the first and second defendants, supported by CITIC, foreshadowed applications to have separate questions heard and determined under O 32 r 4 of the Rules of the Supreme Court 1971 (WA). Those questions focused on the proper construction of the contractual instruments. The defendants contended that a favourable answer would dispose of the entire actions and avoid a long trial and costly discovery.
Mineralogy pushed for a broad discovery regime across all issues in both actions, arguing the instruments demanded construction in their full context, including pre-contractual communications and surrounding circumstances. It acknowledged some categories might become irrelevant depending on how the separate questions resolve, but submitted any wasted expenditure would stay minimal.
The defendants resisted, maintaining the separate questions raise pure construction issues requiring no evidence beyond the instruments themselves. They urged the court to confine any discovery regime at this stage.
Lundberg J accepted that a party holds no strict entitlement to discovery, and that the discretion turns on the timely and cost-effective disposal of litigation. He found that a regime extending to all issues would prove premature given the proposed applications, risking wasted expenditure. He noted the claims were not new, lacked particular urgency, and amounted to money claims previously agitated by the plaintiff.
The judge also observed that recognised limits confine the construction of commercial contracts, particularly regarding the admissibility of pre-contractual negotiations. Ordinarily, construction proceeds by reference to the contract alone, though sometimes external circumstances become necessary.
Lundberg J declined to reject Mineralogy's discovery proposal entirely, finding it would be wrong to refuse discovery of documents that might inform the construction exercise. Instead, he tailored the regime into three phases: the parties first confer on categories relevant to the separate questions; the court then determines discovery for those questions at a two-day hearing; and discovery of all remaining issues waits until the fate of the separate question applications becomes known.
The court made orders in CIV 1990 of 2025 as set out in Attachment A, with similar orders in CIV 1991 of 2025. The separate question applications are programmed for hearing in or after August 2026.
