An Analysis of Sino Iron Pty Ltd v Mineralogy Pty Ltd [2026] WASCA 71 (S)
1. Introduction
On 4 June 2026 the Court of Appeal (Quinlan CJ, Vaughan JA and Smith AUJ) refused an application by the CITIC parties to re-open their appeal in the long-running Sino Iron project litigation, dismissed the appeal and cross-appeal in accordance with reasons delivered on 28 May 2026, and disposed of the costs of both proceedings. The Court's reasons for those orders were published the following day: Sino Iron Pty Ltd v Mineralogy Pty Ltd [2026] WASCA 71 (S). Unless otherwise indicated, paragraph references in this article are to those reasons.
This article examines the costs component of the decision (at [34]–[47]). Three aspects warrant the attention of practitioners beyond the immediate parties. First, the Court made special costs orders under s 141(3) of the Legal Profession Uniform Law Application Act 2022 (WA) fixed at a ceiling of up to 150% of the maxima allowed under the applicable costs determinations – declining Mineralogy's application to remove the limits altogether, and declining to adopt the ceiling of double the maxima which the trial judge had allowed for the proceedings at first instance (at [41]–[44]). Secondly, the Court declined to make programming orders for a foreshadowed application for indemnity costs, raised for the first time after the appeal had been dismissed, having heard counsel and concluded that the application was not reasonably arguable (at [36]–[38]). Thirdly, the Court refused claims under the residual items of the costs determinations that were either unparticularised or inconsistent with the structure of the determinations (at [45]–[46]).
The decision is significant for commercial litigators and costs practitioners in Western Australia. It supplies a quantitative benchmark – a 50% uplift on the determination maxima – for special costs orders in litigation of the largest scale, and it restates, with appellate endorsement, the principle that the interests of justice include keeping the costs of litigation within reasonable bounds. The unifying theme is that the Court will not, through its costs orders, lend its imprimatur to the conduct of litigation without reference to cost (at [43]).
2. Relevant Legal Framework
Costs determinations and special costs orders
Party and party costs in the Supreme Court of Western Australia are regulated by costs determinations made by the Legal Costs Committee. The orders in this matter engaged the Legal Profession (Supreme Court and District Courts) (Contentious Business) Determination 2022 (WA) and the Legal Profession (Supreme Court and District Courts) (Contentious Business) Determination 2024 (WA). Table A of each determination fixes maximum hourly and daily rates for senior and junior counsel. Table B fixes the allowances for solicitors by reference to time, total costs and the classification of the experience of the fee earner, and deals with residual categories through specific items, including item 35 ('Other work'), item 36 ('Disbursements') and item 37, which makes specific provision for travel expenses (at [41], [44]–[46]).
Section 141(3) of the Legal Profession Uniform Law Application Act 2022 (WA) empowers a court to make a special costs order where the amount of costs allowable under a determination is inadequate because of the unusual difficulty, complexity or importance of the matter. The provision replaced s 280(1) of the Legal Profession Act 2008 (WA) in relevantly identical terms, with the consequence that the authorities decided under the predecessor provision remain applicable.
The criteria are well established, and were stated by the Court of Appeal at an earlier stage of this same litigation in Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 (S) [11]–[16] (Buss P, Murphy & Beech JJA), the decision cited by the Court in the present case (at [42]). The court must form an opinion with two components. The first is that the maximum amount allowable under the relevant scale item is inadequate, in the sense that there is a fairly arguable case that the bill to be presented to the taxing officer may properly tax at an amount greater than the limit imposed by the determination. The second is that the inadequacy arises because of the unusual difficulty, complexity or importance of the matter. A fairly arguable case is not established merely because a party has in fact incurred costs greater than the determination allows. The word 'unusual' qualifies only 'difficulty', and connotes a comparison with the general run of civil cases determined in the court.
The appellate benchmark for the uplift
In JKC Australia LNG Pty Ltd v CH2M Hill Companies Ltd [No 2] [2020] WASCA 112 (S) [11(b)] (Buss P, Beech and Vaughan JJA), the Court of Appeal made a special costs order increasing the maximum limits for counsel under the relevant determination by 50%. That order supplied the benchmark which the Court applied in the present case as 'consistent with previous decisions of this Court' (at [43]).
The costs orders at first instance
At trial, Kenneth Martin J made special costs orders permitting taxation by reference to a ceiling of up to double the maximum rates allowed under the determinations: Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 15] [2023] WASC 56 (S). His Honour described the litigation as presenting 'wholly unique and almost unconquerable dimensions and complexities' ([No 15] (S) [80], quoted at [43]). Both the calibration and the characterisation were before the Court of Appeal on the costs argument, because the CITIC parties proposed that the appellate special costs orders adopt the same ceiling of double the maxima (at [41]).
Indemnity costs in litigation conducted without reference to cost
The Court did not restate the general principles governing indemnity costs. It applied observations made by Quinlan CJ at an earlier stage of the same litigation in Sino Iron Pty Ltd v Mineralogy Pty Ltd [2022] WASC 151 [44]–[45], which it quoted in full (at [38]):
The parties can, of course, spend as much as they wish on legal costs. Nevertheless, in litigation of this type, it is extremely difficult to make any real assessment as to whether one party has 'by its conduct unnecessarily increased the cost of the litigation', when the parties appear to be prepared to conduct the litigation with very little reference to its cost. It also rather lessens the extent to which an order for indemnity costs can operate as any sort of sanction to mark the Court's disapproval of unreasonable conduct.
To the contrary, an order for indemnity costs in a case such as this could well have the opposite effect. To order indemnity costs (where 'everything is included unless it is driven out by the words of exclusion'), might legitimately be seen as lending the Court's imprimatur to the conduct of litigation without reference to cost, or as indicating that, for some litigants, the Court will leave it to the parties to determine what is 'reasonable' (subject only to the residual power of the taxing officer to be positively satisfied that some particular amount had been unreasonably incurred).
Re-opening before orders are entered
The costs orders were made together with the refusal of the CITIC parties' application to re-open the appeal, and the principles governing that application form part of the decision's context. The jurisdiction to re-open a proceeding subsists until judgment has been drawn, passed and entered: Elliott v The Queen [2007] HCA 51; (2007) 234 CLR 38 [31]. It is exercised with caution, having regard to the public interest in the finality of litigation: Autodesk Inc v Dyason [No 2] [1993] HCA 6; (1993) 176 CLR 300, 303 (Mason CJ); Minister for Education v Klein [2005] WASCA 185 (S) [7] (Steytler P). As Mason CJ explained in Autodesk, the jurisdiction is enlivened where the court has apparently proceeded according to some misapprehension of the facts or the relevant law which cannot be attributed solely to the neglect or default of the applicant; it 'is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases' (quoted at [5]).
3. The Facts of the Case
The litigation
The primary proceedings (CIV 1915 of 2019) were heard by Kenneth Martin J and concerned the Sino Iron project. The issue relevant to the re-opening application was whether the Mining Right and Site Lease Agreements (MRSLAs) between two of the CITIC parties and Mineralogy contained an implied term to the effect that Mineralogy would grant additional tenure to the CITIC parties as they 'reasonably required' (at [6]). On 28 May 2026 the Court of Appeal delivered reasons concluding that the MRSLAs did not contain the implied term, and that the appeal and Mineralogy's cross-appeal should each be dismissed (at [1], [7]). The second respondent (Mr Palmer) and the third respondent (the State of Western Australia) did not appear.
The scale of the litigation bears upon the costs analysis. The appellants were represented by two senior counsel appearing with two junior counsel; the first respondent by senior counsel appearing with junior counsel. The appeal books ran to 9,600 pages (at [15]). In the appeal reasons, the Court observed that the parties 'conduct their voluminous litigation without reference to its cost and have a tendency to raise each and every issue that might be thought to be arguable' (appeal reasons [3], cited at [38]).
The re-opening application
Following delivery of the appeal reasons, Mineralogy moved for orders giving effect to them. The CITIC parties applied instead to re-open the appeal, contending that the Court had departed – without notice and without an opportunity to be heard – from a common position of the parties, said to be that 'there would have to be further grants of tenure during the life of the Project' (at [2], [11]). The application fixed upon the statement in the appeal reasons (at [372]) that the CITIC parties could not 'call in aid any extrinsic surrounding circumstance known to the parties at the time of the creation of the MRSLAs, to the effect that the grant of additional tenure was inevitably going to be required for the purposes of the Project' (at [10]).
The CITIC parties relied upon a passage in the oral submissions of senior counsel for Mineralogy acknowledging that 'there would have to be further grants of tenure of one sort or another' during the life of the project (at [12]). They did not refer to the passage that immediately followed, in which counsel confined the common ground by reference to 'the dichotomy between a duty to grant as opposed to an obligation to consider or a duty to consider' (at [13]). The CITIC parties also sought to adduce extracts from the trial submissions to demonstrate that the common position existed at trial – extracts which, as the Court observed, 'did not manage to find their way into the 9,600 pages of appeal books filed in the appeal' (at [15]).
The costs contest
The parties filed competing minutes of proposed orders before the hearing on 28 May 2026, after receiving an advance copy of the appeal reasons (at [35]). Each accepted that the CITIC parties should pay Mineralogy's costs of the appeal, and that Mineralogy should pay the CITIC parties' costs of the cross-appeal. The dispute concerned the special costs orders sought under s 141(3) (at [35]). Four issues divided the parties. First, Mineralogy sought special costs orders in relation to its costs of the appeal only, whereas the CITIC parties submitted that any special costs orders should apply mutually to the appeal and the cross-appeal (at [40]). Secondly, Mineralogy sought the removal of the limits on the maximum hourly and daily rates for counsel; the CITIC parties proposed a ceiling of up to double the maxima, consistent with the orders made at trial (at [41]). Thirdly, Mineralogy sought an allowance under item 35 ('Other work') of Table B (at [45]). Fourthly, Mineralogy sought to claim travel and accommodation under item 36 ('Disbursements') of Table B (at [46]).
Separately, on 4 June 2026 – after the appeal and cross-appeal had been dismissed, for the first time, and contrary to its filed minute – Mineralogy advised the Court that it wished to seek programming orders for an application for indemnity costs. The parties had corresponded about such an application, but neither had informed the Court (at [36]).
The final orders
The Court dismissed the appeal (CACV 35 of 2023) and the cross-appeal (CACV 37 of 2023). It ordered the appellants to pay the first respondent's costs of the appeal (including any reserved costs), and the cross-appellant to pay the costs of the respondents to the cross-appeal, in each case to be taxed if not agreed. Special costs orders were made under s 141(3) permitting taxation in each case by reference to a ceiling of up to 150% of the maximum allowable hourly and daily rates for senior and junior counsel under Table A, and up to 150% of the limits for time and total costs or by the classification of the experience of the fee earner under Table B, of both the 2022 and 2024 determinations (at [47]).
4. Analysis of the Court's Reasoning
The re-opening application: 'will' rather than 'might'
The Court was satisfied that it had neither misapprehended the parties' position nor departed from any common position (at [16]). The impugned paragraph of the appeal reasons was not concerned with whether the parties commonly understood that the CITIC parties would, at some point, require more land for the project – a matter the trial judge had accepted in relation to the eventual storage of waste rock and tailings (at [17]). It was concerned with a different question: whether it was commonly understood that Mineralogy would necessarily provide that additional land – the distinction between a 'potential future grant' of tenure and a necessary, or inevitable, grant of future tenure by Mineralogy (at [18]).
Three features of the reasoning are instructive. First, context: the impugned paragraph responded to a specific 'surrounding circumstance' which the CITIC parties had themselves advanced at trial, and which the trial judge had characterised as an embedded argument of law rather than an assembly of fact (at [19]–[20], [22]). Secondly, the CITIC parties' own further submissions conceded that the relevant passages of the primary reasons were 'not contrary to the common position' – a concession the Court regarded as demonstrating that no departure had occurred (at [21]). Thirdly, the distinction between a grant that will occur and a grant that might occur 'may be a subtle one, but it is real, nonetheless' (at [26]). There having been no departure from a common position, there was no denial of procedural fairness (at [27]).
For completeness, the Court observed that even a misapprehension of the kind alleged would not have affected the result. On the proper construction of the MRSLAs, any grant of additional tenure 'would be a matter to be determined, if at all, by the agreement of the parties acting in good faith but in accordance with their own commercial interests' (appeal reasons [397], cited at [30]). The application was refused, and the way was cleared for final orders, including as to costs (at [32]–[33]).
Indemnity costs: a reasonably arguable basis must be shown
The Court's treatment of Mineralogy's indemnity costs application is procedurally the most notable feature of the decision. The application surfaced only after the appeal had been dismissed, contrary to Mineralogy's filed minute, and after correspondence between the parties of which the Court had not been informed (at [36]). Rather than simply listing the application for hearing, the Court heard junior counsel for Mineralogy 'as to the basis for the proposed application for indemnity costs with a view to determining whether such an application was reasonably arguable' (at [37]).
Counsel identified paragraphs of the appeal reasons in which the CITIC parties' contentions had been rejected, and references in the appeal reasons critical of the conduct of the CITIC parties. As to the latter, the Court noted that the criticisms concerned the CITIC parties' conduct in relation to the events the subject of the litigation, not their conduct of the appeal proceeding itself (at [37]). Neither category sufficed: the Court was 'not satisfied that there was a reasonably arguable basis for indemnity costs' (at [38]).
The substantive reason lay in the character of the litigation. Reiterating its observation that the parties conduct their voluminous litigation without reference to its cost, the Court applied the analysis of Quinlan CJ in the 2022 costs decision set out in Part 2 above: where both parties are prepared to litigate with very little reference to cost, it is extremely difficult to assess whether one of them has by its conduct unnecessarily increased the costs of the litigation; an order for indemnity costs loses its capacity to operate as a sanction; and the making of such an order might legitimately be seen as lending the Court's imprimatur to that mode of litigation (at [38]). The logic merits emphasis: the more lavishly both sides litigate, the weaker – not the stronger – the case for indemnity costs becomes.
Special costs orders: threshold satisfied, quantum disciplined
The Court was satisfied, in accordance with the well-established criteria, that special costs orders were appropriate: the rates in the determinations were inadequate because of the unusual difficulty, complexity or importance of the matter (at [42]). The real contest was quantum. Mineralogy sought the removal of the limits for counsel altogether; the CITIC parties proposed a ceiling of double the maxima, mirroring the trial orders (at [41]).
The Court rejected both positions and fixed the uplift at 50%, 'consistent with previous decisions of this Court', citing JKC Australia LNG (at [43]). Two strands of reasoning underpin the calibration. The first is comparability: the Court did not agree with the trial judge – 'at least as far as the appeal was concerned' – that the case presented 'wholly unique and almost unconquerable dimensions and complexities'; rather, 'the complexity wrought by the approach taken by the parties to this dispute is comparable to that taken by many other parties' to what the Court had described as 'mega-litigation' (at [43]). The second is normative: 'the interests of justice include the need to keep the costs of litigation generally within reasonable bounds', and the Court 'should not lend its imprimatur to the conduct of litigation without reference to cost' (at [43]). The same conclusion was reached in relation to the Table B allowances for solicitors (at [44]).
The choice of words repays attention. The complexity was 'wrought by the approach taken by the parties': it was, in significant measure, self-generated. A party cannot create complexity through its own forensic choices and then rely upon that complexity to dismantle the limits on recoverable costs.
Mutuality
The Court accepted the CITIC parties' submission that 'the same basis for costs recovery should apply to each of the costs orders' (at [40]). The unusual difficulty, complexity or importance that justifies a special costs order inheres in the matter, not in the identity of the receiving party. Where an appeal and a cross-appeal arise from the same proceedings, an asymmetric approach to recovery would lack a principled foundation.
The residual items: particularisation required
Mineralogy's claim under item 35 ('Other work') failed because it did not identify – even when asked – any work relevant to the appeal that would not otherwise be dealt with by the items of the determinations (at [45]). Its claim to travel and accommodation under item 36 ('Disbursements') failed because the effect of the order sought would have been a complete indemnity for travel and accommodation expenses, in circumstances where item 37 makes specific provision for travel expenses (at [46]). The principle is one of structural integrity: special costs orders operate within the architecture of the determinations, and are not a vehicle for converting scale recovery into indemnity recovery item by item.
The reasons are those of the Court; there was no separate or dissenting opinion. The principles stated or confirmed may be summarised as follows: a special costs order requires the two-component opinion described in Sino Iron [No 2] (2017); the appellate benchmark for the uplift in mega-litigation is 50% above the determination maxima; the same basis of recovery should ordinarily apply across appeal and cross-appeal; residual item claims must be particularised; a late application for indemnity costs may be tested summarily for reasonable arguability; and rejected contentions, or judicial criticism of a party's conduct in the events underlying the litigation, do not without more make indemnity costs arguable.
5. Assessing the Consequences: Quantification
The special costs orders operate as ceilings, not entitlements. Each order permits taxation 'by reference to a ceiling of up to 150%' of the relevant maxima (at [47]). The taxing officer retains the function of determining what costs were reasonably incurred and are reasonable in amount; the orders lift the cap within which that assessment occurs. A receiving party must still prove its bill.
The arithmetic of the calibration is simple. Assume, for illustration only, that Table A of the applicable determination fixed senior counsel's maximum daily rate at $9,000. The trial orders would permit taxation of trial work up to $18,000 per day; the appellate orders permit taxation of appeal work up to $13,500 per day; removal of the limits would have left the rate at large, subject only to taxation. In litigation of this scale – where senior counsel command daily rates well above the determination maxima – the difference between the three positions, compounded across counsel fees and solicitors' allowances and across both the appeal and the cross-appeal, will be measured in the hundreds of thousands of dollars.
Three further consequences follow. First, the gap between actual expenditure and recoverable costs in mega-litigation remains substantial by design. Even at 150% of the maxima, a successful party that has litigated at full commercial rates will recover a fraction of its outlay; the Court regarded that restraint as serving the interests of justice rather than as a defect requiring correction (at [43]). Secondly, the trial calibration survives: the Court's disagreement with the trial judge's characterisation was expressly confined to the appeal (at [43]), so the ceiling of double the maxima under Sino Iron [No 15] (S) continues to govern the costs of the proceedings below, while 150% governs the appellate costs. Thirdly, the refusal of programming orders disposed of the indemnity costs application without a separate hearing – itself a saving of costs, and a measure of the Court's unwillingness to add further interlocutory layers to litigation of this kind.
For Mineralogy, the practical outcome was mixed. It obtained special costs orders, but at a lower ceiling than it sought and than the trial orders allowed, confined within the structure of the determinations, applied mutually for the benefit of the CITIC parties on the cross-appeal, and without any prospect of indemnity costs.
6. Worked Example
The following hypothetical illustrates the application of the principles. Suppose a twelve-week Supreme Court trial concerning long-term access and supply agreements for an export facility. The plaintiff succeeds at trial and resists the defendant's appeal; a cross-appeal by the plaintiff on a discrete construction point is dismissed. The appeal books run to 7,000 pages; each side briefs senior and junior counsel; the respondent's actual counsel fees are roughly three times the Table A maxima. The respondent seeks: removal of the Table A and Table B limits; alternatively, a ceiling of double the maxima, matching a special costs order made at trial; an order under the disbursements item covering counsel's interstate travel and accommodation in full; and – by correspondence with the appellant after the appeal reasons are delivered – foreshadows an application for indemnity costs based on the emphatic terms in which the appellant's case was rejected.
The respondent (receiving party)
The respondent's strongest ground is the threshold. On the Sino Iron [No 2] criteria it can establish a fairly arguable case that its bill would tax above the caps: the resources reasonably deployed (multiple counsel, a substantial solicitor team, voluminous materials) significantly exceeded the allowances contemplated by the determinations, and the matter was complex and important within the meaning of s 141(3). The respondent should, however, be advised that removal of the limits is unlikely: Sino Iron [2026] WASCA 71 (S) treats removal as inconsistent with keeping costs within reasonable bounds, and treats 150% as the benchmark (at [43]). The claim to replicate the trial ceiling of double is also vulnerable: the appellate court assesses the appeal, not the trial, and the complexity of an appeal – confined to grounds, conducted on a fixed record – will rarely match that of the trial. The travel claim as framed will fail because the determination makes specific provision for travel expenses; the claim should be routed through that item (at [46]). The indemnity costs proposal must be disclosed to the Court before final orders are sought, and should be supported by identified conduct of the appeal that unnecessarily increased costs – failing which the respondent risks the application being tested for reasonable arguability and dispatched summarily, as Mineralogy's was (at [36]–[38]).
The appellant (paying party)
The appellant's position is to concede the threshold – resistance would lack realism on these facts – and to contest calibration. Its submissions would deploy the comparability reasoning: the dispute, while heavy, is of a kind regularly litigated; its complexity was in part the product of both parties' forensic choices; and the benchmark in JKC Australia LNG and Sino Iron (S) is a 50% uplift (at [43]). It would seek mutuality, so that the cross-appeal costs it recovers are taxed on the same basis (at [40]). On indemnity costs, it would submit that adverse findings, however emphatically expressed, are an ordinary incident of losing, not evidence of unreasonable conduct of the proceeding (at [37]–[38]), and that the respondent's own scale of expenditure deprives an indemnity order of its character as a sanction.
The likely result
On the authority of Sino Iron (S): special costs orders for both the appeal and the cross-appeal at a ceiling of up to 150% of the Table A and Table B maxima; the blanket travel claim refused and left to the specific travel item; and no programming orders for the indemnity application unless the respondent can point to specific conduct of the appeal – not the underlying commercial conduct, and not the mere rejection of arguments – that unnecessarily increased its costs.
7. Practitioner Guidance: A Step-by-Step Framework
The decision yields a framework for practitioners acting in matters where special costs orders, or indemnity costs, will be sought at the conclusion of heavy litigation.
Step 1: File a complete minute, and treat it as exhaustive.
The parties filed competing minutes after receiving an advance copy of the appeal reasons (at [35]). Mineralogy's difficulty arose because its indemnity costs application appeared nowhere in its minute and was raised for the first time after the appeal had been dismissed (at [36]). Every order to be sought – including any application for which programming orders will be needed – should appear in the minute or be disclosed when the minute is filed.
Step 2: Disclose foreshadowed costs applications to the Court, not merely to the opponent.
Correspondence between the parties about a prospective indemnity costs application is not disclosure to the Court. The Court noted that the parties 'had previously corresponded in relation to such application but had not so informed the Court' (at [36]). Late disclosure invites the Court to test arguability on the spot.
Step 3: Before seeking indemnity costs, identify conduct of the proceeding.
An application must rest upon conduct of the litigation that unnecessarily increased its costs. Criticism in the reasons of a party's conduct in the underlying events is not such conduct (at [37]). Nor is the rejection of the party's contentions, however comprehensive. Before advising that an application be made, audit the client's own approach: a party that has itself litigated without reference to cost will find the sanction rationale unavailable (at [38]).
Step 4: Prove the two components of the special costs threshold.
Assemble evidence that there is a fairly arguable case that the bill would tax above the caps – the scale of the record, the number and nature of the issues, the resources reasonably required by comparison with the determination allowances – and connect the inadequacy to the unusual difficulty, complexity or importance of the matter: Sino Iron [No 2] [2017] WASCA 76 (S) [11]–[16], applied at [42]. Proof that more was spent than the scale allows is, without more, insufficient.
Step 5: Calibrate the uplift sought to the 150% benchmark.
Seek more than a 50% uplift only upon genuinely exceptional features, and anticipate comparability reasoning in response: complexity attributable to the parties' own approach will not assist (at [43]). Do not assume that a calibration obtained at trial will be carried into the appeal.
Step 6: Address mutuality where there is a cross-appeal.
The same basis of recovery should ordinarily apply to each costs order (at [40]). A receiving party on one proceeding may be a paying party on the other; mutuality cuts both ways and should be addressed in the minute, not assumed.
Step 7: Particularise residual item claims.
A claim under item 35 ('Other work') must identify the work said not to be covered by the other items (at [45]). Travel and accommodation claims belong under the item that specifically provides for them (at [46]). A claim structured to produce a complete indemnity under a residual item will be refused.
Step 8: Advise the client on net recovery before the costs argument, not after.
Even a successful special costs application leaves a substantial gap between expenditure and recovery. The client's expectations – and any settlement calculus – should be set by reference to a ceiling of 150% of scale, subject to taxation, not by reference to actual outlay.
8. Evidence and Arguments Available to Each Side
In proceedings raising analogous costs questions, the following evidence and arguments are available.
For the receiving party seeking a special costs order
The evidentiary foundation is the disproportion between the determination allowances and the resources the matter reasonably required. Relevant materials include the length of the trial and appeal; the volume of the record (in Sino Iron, 9,600 pages of appeal books (at [15])); the number of grounds and any notices of contention; the size and seniority of the legal teams on both sides; the amounts and interests at stake; and any prior special costs orders in the same litigation. The paying party's own resourcing is a forceful point: a party that itself briefed multiple senior counsel cannot easily contend that the matter was within the usual run of civil cases. Importance need not be 'unusual' – that adjective qualifies difficulty alone – so a matter of substantial commercial or public importance may qualify even if not novel.
On calibration, the receiving party may argue for more than 150% only by distinguishing the benchmark authorities – for example, by demonstrating dimensions of difficulty not attributable to the parties' own conduct, such as intractable subject matter requiring specialised expertise, or procedural complexity imposed by circumstances rather than chosen.
For the paying party
The paying party's arguments are supplied by the decision itself: the complexity of heavy commercial litigation is frequently 'wrought by the approach taken by the parties' (at [43]); the benchmark is a 50% uplift, applied in JKC Australia LNG and endorsed in Sino Iron (S); ceilings preserve the taxing officer's scrutiny; the interests of justice favour keeping recovery within reasonable bounds; and any residual item claim should be tested for particularity (at [45]–[46]). Where the receiving party seeks to export a trial calibration to the appeal, the paying party should emphasise the confined character of appellate proceedings.
On indemnity costs
A party seeking indemnity costs in mega-litigation must identify discrete conduct of the proceeding – persistence in hopeless points after their futility was exposed, late abandonment of grounds, duplication, or misuse of interlocutory process – and should be able to show that its own conduct of the litigation was cost-conscious. The party resisting will rely upon the structural point in the 2022 costs decision, applied at [38]: where both parties litigate without reference to cost, the comparison that grounds an indemnity order cannot sensibly be made, and the order would function as endorsement rather than sanction. The resisting party will also separate judicial criticism of the underlying events from criticism of the conduct of the proceeding (at [37]).
9. Key Takeaways for Legal Practice
1. The benchmark uplift for special costs orders in mega-litigation is 50%. The Court fixed counsel and solicitor recovery at a ceiling of up to 150% of the determination maxima, consistent with JKC Australia LNG [No 2] [2020] WASCA 112 (S), rejecting both the removal of the limits and a doubling (at [41]–[44]).
2. The special costs threshold remains the two-component opinion. There must be a fairly arguable case that the bill would tax above the cap, and the inadequacy must arise from the unusual difficulty, complexity or importance of the matter: Sino Iron [No 2] [2017] WASCA 76 (S) [11]–[16], applied at [42].
3. Special costs orders are ceilings, not entitlements. The orders permit taxation 'by reference to a ceiling of up to 150%'; reasonableness remains a matter for the taxing officer (at [47]).
4. A trial calibration does not carry into the appeal. The Court disagreed with the characterisation that had supported a ceiling of double the maxima at trial, 'at least as far as the appeal was concerned' (at [43]).
5. Mutuality is the default where an appeal and cross-appeal are dismissed together. The same basis of recovery applied to both costs orders (at [40]).
6. A late indemnity costs application will be screened for reasonable arguability. The Court heard counsel on the basis for the proposed application and disposed of it summarily rather than making programming orders (at [36]–[38]).
7. Rejected contentions and criticism of conduct in the underlying events do not ground indemnity costs. The relevant conduct is the conduct of the proceeding itself (at [37]).
8. Litigating without reference to cost forfeits the sanction logic of indemnity costs. An indemnity order in such litigation risks lending the Court's imprimatur to that approach: Sino Iron Pty Ltd v Mineralogy Pty Ltd [2022] WASC 151 [44]–[45], applied at [38].
9. Residual item claims must be particularised and structurally coherent. Item 35 requires identified 'Other work'; travel and accommodation belong under the item making specific provision for travel (at [45]–[46]).
10. Costs orders are an instrument of litigation discipline. The interests of justice include the need to keep the costs of litigation generally within reasonable bounds (at [43]). Practitioners should expect Western Australian courts to express that value through the calibration of special costs orders rather than through indemnity awards in heavy commercial matters.
10. Conclusion
Sino Iron Pty Ltd v Mineralogy Pty Ltd [2026] WASCA 71 (S) is a compact and deliberate statement of how the Court of Appeal will approach costs at the conclusion of the State's heaviest commercial litigation. The Court confirmed the orthodox threshold for special costs orders, fixed the uplift at the appellate benchmark of 150% of the determination maxima, applied that basis mutually across the appeal and cross-appeal, declined to allow the residual items of the determinations to be used as instruments of indemnity recovery, and screened out a late indemnity costs application as not reasonably arguable.
The through-line is institutional. Costs orders are not merely compensatory machinery; they express the Court's view of how litigation ought to be conducted. Parties who choose to litigate at any expense should understand that the costs jurisdiction will not underwrite that choice – neither through uncapped special costs orders nor through indemnity awards. For practitioners, the working rules are short: prove inadequacy properly; expect 150%; particularise item claims; disclose every application before final orders are made; and treat indemnity costs, in litigation of this kind, as exceptional in fact as well as in name.
The calibration adopted in this decision – generous enough to acknowledge genuine complexity, restrained enough to withhold endorsement of unconstrained expenditure – is likely to serve as the reference point for special costs orders in Western Australian mega-litigation for some time.