Alexanderson Earthmover Pty Ltd v Civil Mining and Construction - [2019] QSC 259

SUPREME COURT OF QUEENSLAND

CITATION:

Alexanderson Earthmover Pty Ltd v Civil Mining & Construction [2019] QSC 259

PARTIES:

ALEXANDERSON EARTHMOVER PTY LTD

(plaintiff)

v
CIVIL MINING & CONSTRUCTION PTY LIMITED

(defendant)

FILE NO:

13314 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

22 October 2019

DELIVERED AT:

Brisbane

HEARING DATES:

4 April 2019, 5 April 2019, 17 April 2019

written submissions received 12 April 2019, 1 May 2019, 8 May 2019

JUDGE:

Ryan J

ORDERS:

In the defendant’s application filed 12 March 2019:

As to paragraph 1:

(i)          I strike out, with leave to re-plead by 17 December 2019, the following paragraphs of the Second Further Amended Statement of Claim (2FASOC):

·    36 – 38;

·    40; and

·    44.

(ii)        I direct the defendant to plead to the re-pleaded paragraphs of the 2FASOC by 10 February 2020.

As to paragraph 2:

(i)          Having struck out the paragraphs of the 2FASOC listed above, the following schedules fall:

·    Schedule A, B of the 2FASOC; and

·    Schedule A1, A2, G, H, of the Plaintiff’s Further and Better Particulars.

(ii) I grant the plaintiff leave to re-plead the schedules by 17 December 2019.

As to paragraph 3:

I order that:

(i)          By 17 December 2019, the plaintiff is to amend the first seven particulars of paragraphs 41(a) and 53 of the 2FASOC to include details about the part of the site relevantly affected by sufficient rain.

(ii)        By 17 December 2019, the plaintiff is to provide further particulars of the directions referred to in paragraphs 41(a)(viii) and (ix).

(iii)        By 17 December 2019, the plaintiff is to provide further particulars of the directions referred to in paragraph 96.

(iv)       By 17 December 2019, the plaintiff is to comply with Rule 155(2)(c) in its pleading of paragraphs 101 and 104.

In the defendant’s application filed 16 November 2018:

I order that Brown J’s order 3, made on 26 September 2018, be varied so as to read:

“The defendant is to respond to the particulars requested by the plaintiff:

(a)    in its request for particulars of the defence and counterclaim dated 29 June 2018; and

(b)   in the reply and answer,

by 15 October 2018.”

In the plaintiff’s application filed 16 November 2018:

As to paragraph 1:

(i)          I strike out the particulars of paragraph 117(c) FADCC, with leave to re-plead by 10 February 2020.

I order that:

(ii)        The defendant is to amend its traversals in the following paragraphs of the Further Amended Defence and Counterclaim (FADCC) by 10 February 2020:

·    49(a);

·    50;

·    51(b);

·    70;

·    102;

·    103;

·    107(b); and

·    116(a).

(iii)        The defendant is to respond to the following paragraphs of the Second Further Amended Statement of Claim (2FASOC) (which paragraphs have been amended since the plaintiff’s application was filed) by 10 February 2020):

·    31;

·    32;

·    35; and

·    43.

(iv)       The defendant is to provide particulars of paragraph 116(b) FADCC by 10 February 2020.

(v)        The defendant is to provide particulars of the following assertions in the FADCC by 10 February 2020:

·    in every paragraph in which the defendant has asserted that it did provide the plaintiff with “sufficient access” – particulars of when and where it gave the plaintiff “sufficient access” and how and when the fact of access was communicated to the plaintiff; and

·    in every paragraph in which the defendant has referred to “the plaintiff’s own delays” or “delays for which the plaintiff was responsible” or similar – particulars of the nature of the plaintiff’s delays.

As to paragraphs 2 and 3:

I order that:

(i)          The defendant is to provide particulars of the following paragraphs of the FADCC by 10 February 2020:

·    11(b) – “the Construction Program set out in the Contract”;

·    37(b), 39, 40 (a), 48, 49(b), 50(b), 51(a), 54(a), 57(a), 59(a), 61(a) and 62(a) – particulars of when and where it gave the plaintiff “sufficient access” and how and when the fact of access was communicated to the plaintiff;

·    57(b), 60(a)(i), 61(c)(i), – particulars of the nature of “the plaintiff’s own delays” or “delays for which the plaintiff was responsible” or similar.

·    25 (of the counterclaim) – further particulars of the representation made by Mr Alexanderson in November 2011.

As to paragraphs 4 and 5:

(i)          I order that, in relation to item 16(dd) in the final version of the Schedule of Non-Disclosed Documents (emailed to my associate on 1 May 2019), if the notification was in the form of a document, and that document is in the defendant’s possession and control, it is to be disclosed to the plaintiff by 17 December 2019.

(ii)        As to items 16(kk) and 16(ll) in the final version of the Schedule of Non-Disclosed Documents (emailed to my associate on 1 May 2019) – the question of their disclosure is to be deferred until the next review of this matter.

Otherwise, the applications are dismissed.

And further:   Within 14 days, the parties are to provide a copy of these orders to the Supervised Case List Judge and arrange for the next review of this matter.

I will hear the parties as to costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – GENERALLY – whether statement of claim includes global causation – whether particulars inadequate – whether particulars ambiguous, irrelevant or confusing – whether particulars support allegation made

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – OTHER MATTERS – Disclosure – expert reports from other proceedings – whether party may withhold from disclosure part of a document said to be irrelevant

Recording of Evidence Act 1962 (Qld)
Uniform Civil Procedure Rules 1999 (Qld)

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Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd (No 2) [2009] WASC 69
Arnold Electrical & Data Installations P/L v Logan Area Group Apprenticeship/Traineeship Scheme Ltd [2008] QCA 100
Atlantic 3-Financial (Aust) Pty Ltd & Anor v Marler & Anor [2003] QSC 197
Barclay Mowlem Construction Limited v Dampier Port Authority (2006) 33 WAR 82
Beavan v Wagner [2017] QCA 246
Bloeman v Atkinson [1977] Qd R 291
Bromley Investments Pty Ltd v Elkington [2002] QSC 427
Bruce v Odhams Press Ltd [1936] 1 KB 697
BTU Group & Ors v Noble Promotions P/L & Ors [2002] QCA 505
Churton v Frewen (1865) 63 ER 669
Civil Mining & Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd [2017] QSC 85
Curlex Manufacturing Pty Ltd v Carlingford Australia General Insurance Limited [1987] 2 Qd R 335
DM Drainage & Constructions as trustee for DM Unit Trust t/a DM Civil v Karara Mining Limited [2014] WASC 170
Equititrust Limited v Tucker & Ors (No 2) [2019] QSC 248
Frith v Schubert & Anor [2010] QSC 444
Great Atlantic Insurance Company v Home Insurance Company [1981] 1 WLR 529
I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Limited (2002) 210 CLR 109
In Roma Pty Ltd v Adams & Anor [2012] QCA 347
John Holland Construction & Engineering Pty Ltd v Kvaerner RJ Brown Pty Ltd (1996) 13 BCL 292
John Holland Construction & Engineering Pty Ltd v Kvaerner RJ Brown Pty Ltd & Anor (1996) 8 VR 681
Lacaba Ahden Australia Pty Ltd v Bucyrus (Australia) Pty Ltd [2006] QSC 147
Laing Management (Scotland) Ltd v John Doyle Construction Ltd [2004] BLR 295
LBS Holdings P/L v The Body Corporate for Condor Community Title Scheme 13200 & Ors [2004] QSC 229
McGrath Corporation Pty Ltd v Global Construction Management (Qld) Pty Ltd & Anor [2011] QSC 178
Menkens v Wintour [2007] 2 Qd R 40
Meredith v Palmcam Pty Ltd [2001] 1 Qd R 645
Mitchell Contractors Pty Ltd v Townsville-Thuringowa Water Supply Joint Board [2004] QSC 329
Newmont Yandal Operations Pty Ltd v The J Aron Corporation and the Goldman Sachs Group Inc & Ors (2007) 70 NSWLR 411
Parbery & Ors v QNI Metals Pty Ltd & Ors [2018] QSC 276
Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 196 ALR 257
Project Leaders Australia Pty Ltd v Mt Isa Association Friendly Society Limited [2003] QSC 032
QNI Resources Pty Ltd v Sino Iron Pty Ltd [2016] QSC 62
Queensland Pork P/L v Lott [2003] QCA 271
Rapid Roofing P/L & Anor v Natalise P/L (as trustee for the St Ange Family Trust) & Anor [2008] QCA 237
Rose v Terry Hewat Commercial Diving Pty Ltd, SC (Qd), Demack J., no. 115 of 1995, 17 August 1999, unreported
Santos Ltd v Fluor Australia Pty Ltd [2017] QSC 153
Telstra Corporation v Australis Media Holdings Ltd (NSWSC, unreported, 10 February 1997, McLelland CJ in Eq)
Thiess Pty Ltd v FFE Minerals Australia Pty Ltd [2007] QSC 209
Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15
Watts v Rake (1960) 108 CLR 158
Williams & Humbert v W & H Trade Marks (Jersey) Ltd [1986] 1 AC 368

COUNSEL:

B E Codd, with C M Matthews for the Plaintiff

L M Campbell for the Defendant

SOLICITORS:

Frigo Adamson Legal Group Proprietary Limited for the Plaintiff

Clayton Utz for the Defendant

Table of Contents

Introduction

Background

AE’s application

CMC’s applications

Progress of the hearing and additional submissions

Complaints superseded or inutile
Disclosure

Related litigation: Civil Mining & Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd [2017] QSC 85

Relevant principles

PART A: CMC’s application to strike out parts of AE’s pleadings – overview

CMC’s complaints about particular paragraphs of the FASOC/2FASOC

Paragraph 27(c)

The non-compliance with rule 444 point

The substance of the complaint

Conclusion

Paragraphs 36 – 38

Conclusion

Paragraph 36, Schedule A1 and the new particulars

Conclusion

Paragraph 40

Conclusion

Paragraph 44

Conclusion

Paragraph 41(a) and paragraph 53

Complaint that rainfall in millimetres has not been pleaded

Conclusion re rainfall in millimetres

Complaints otherwise

Conclusion as to ambiguity in paragraphs 41(a) and 53

Conclusion re additional particulars (viii), (ix) and (x) of paragraph 41(a)

Paragraph 60

Conclusion

Paragraph 96 (within the Rocky Fill claim)

Conclusion

Paragraphs 101 and 104

Conclusion

Alleged “improper” particulars where document simply referred to

Paragraph 10

Conclusion

Paragraph 32

Conclusion

PART B: CMC’s application for a variation of Brown J’s order

Overview of application

Context for CMC’s application to vary paragraph 3 of the order made by Brown J

CMC’s submissions

AE’s submissions

Discussion and conclusion

PART C: AE’s application

The implied undertaking (paragraphs 7, 8 and 9)

Disclosure (paragraphs 4 and 5)

Legal issues

Disclosing expert reports
The disclosure of irrelevant parts of documents

The disclosure of documents which AE can access otherwise

The disclosure of documents which AE may not be able to access otherwise

The form in which the documents are to be disclosed (paragraph 6)

The application to strike out paragraphs of the defence (paragraph 1)

Whether the defence was properly pleaded and particularised?

CMC’s response generally

AE’s reply to CMC’s general response

CMC’s further response to AE’s reply

Approach to application to strike out paragraphs of the defence

CMC’s response to AE’s suggestion that CMC had failed to amend a pleaded nonadmission in a timely way

Whether the paragraphs of the FADCC, listed in Schedule B of the 2FASOC, should be struck out

Paragraph 45(a)

Paragraph 46

Paragraph 47

Paragraph 48

Paragraph 49

Paragraph 50

Paragraphs 51(a) and (b)

Paragraphs 52(a) and (b)

Paragraph 54(a)

Paragraphs 57(a) and 57(b)

Paragraph 60

Paragraph 61

Paragraph 62(a)

Paragraph 70

Paragraph 89(b)

Paragraphs 102 and 103

Paragraphs 113 and 114

Paragraphs 116(a) and (b); 117(b), 117(c) 118 and 119

Complaints by AE about CMC’s failure to particularise (paragraph 2 and 3)

Paragraph 11(b)

Paragraphs 37(b), 39, 40(a), 48, 49(b), 50(b), 51(a), 52(a), 54(a), 57(a), 58(a), 59(a), 61(a) and 62(a)

Paragraphs 57(b)

Paragraph 59(d)

Paragraphs 60(a)(i), 61(c)(i)

Paragraphs 76(b), 79(c), 81(c), 82(b)

Paragraph 92(c)

Paragraph 93(c), 94(c), 98(c) and 100(c)

Paragraph 85(a)

Paragraph 87(b)

Paragraph 88, 89, 107(b)

Paragraph 89

Paragraph 107(b)

Paragraphs 16 of the counterclaim

Paragraph 25 of the counterclaim

Objections to evidence

Orders

Introduction

This judgment deals with several procedural applications in a construction dispute.
The applications (three) were listed for a two day hearing. That was a gross underestimate.
The parties struggled to cooperate. They could not even agree on a list of issues for the Court[1] or the order in which the Court should hear the applications. Each suggested the other had brought its application, or part of it, too soon. The pleadings were still in a state of flux. Further significant amendments were foreshadowed by the plaintiff. The defendant, who was still in the process of disclosure, was yet to plead to the two latest versions of the statement of claim.[2]
[1] Which they were directed to prepare.
[2] The Further Amended Defence, responding to the Amended Statement of Claim, was filed in October 2018. The application to strike out paragraphs of the defence was filed on 16 November 2018. The Further Amended Statement of Claim was filed on 25 January 2019 and the Second Further Amended Statement of Claim was filed on 21 March 2019.
The plaintiff urged me to adjourn the defendant’s global claim complaint about the plaintiff’s pleadings until it had obtained expert evidence. The defendant urged me to adjourn the plaintiff’s complaints about its disclosure until it had exhausted its searches. The defendant also submitted that I ought to defer consideration of any complaint about its pleadings until it had a chance to respond to amendments to the plaintiff’s pleadings. Neither party however conceded that its own application was premature.
Having regard to the nature of the issues, the length of the written submissions and the scores of authorities provided to the court, it was not surprising that the parties were unable to finish their oral submissions in the time allocated for the hearing. I was required to deal with outstanding matters by way of the existing, and further, written submissions. That process did not run smoothly and the outstanding matters did not easily lend themselves to resolution on the basis of written submissions. I remind the parties of their obligations under rule 5 of the Uniform Civil Procedure Rules 1999.
My orders reflect my view that it is appropriate to grant each of the parties a reasonable period of time to re-plead allegations which I have struck out; to respond to amended pleadings; or otherwise address pleading deficiencies. The timetable I have set is based on my understanding of the complexity of the issues which need to be addressed. It also accommodates the end of year vacation period.
This matter is under the supervision of the Supervised Case List Judge. The parties are to provide to her Honour a copy of my orders and request a review of this matter. Her Honour will no doubt address the timetable at the next review.
Background
Wiggins Island Coal Export Terminal Pty Ltd (Wiggins) engaged the defendant, Civil Mining and Construction (CMC), to complete civil works at the Wiggins Island Coal Export Terminal (the Terminal).
The defendant (CMC) engaged the plaintiff, Alexanderson Earthmover (AE), as a Subcontractor to complete certain of those civil works, namely –
•the excavation of materials from the GPN Borrow Pit and the OLC Cut;[3]
•the transportation of the excavated materials to the Reclamation Bunds C site; and
•the placement and compaction of the excavated materials to form the Reclamation Bunds C.
[3] The Overland Conveyor Cut.
A reclamation bund acts as a holding dam, which traps materials but allows water to drain out of the bund over time. Several bunds were to be constructed at the Reclamation Bunds C site at the Terminal. The material for their construction was to be taken from the OLC cut and the GPN Borrow Source (a clay quarry). There was a road from the OLC cut, and another road from the GPN Borrow Source, both of which connected with a road which led to the Reclamation Bunds C site. These roads were made of compacted clay. Removing material from the OLC cut required travel over two creeks, Beals Creek and Pyealy Creek.
The contract between CMC and AE was dated 13 October 2011. It provided for AE’s works to be valued on the basis of a schedule of rates. AE carried out the works between October 2011 and September 2012.
On 15 December 2017, AE commenced proceedings against CMC. It claimed –
•the recovery of the proceeds of a bank guarantee;
•damages for breach of contract, based upon CMC’s failure to give AE sufficient and timely access to the site;
•monies payable under the contract for standby of AE’s plant, equipment and personnel arising from inclement weather;
•monies payable under the contract based upon the volume of material excavated by AE from the GPN Borrow Pit;
•monies payable under the contract, based upon the volume of material placed in the Reclamation Bunds C; and
•two claims arising out of AE’s placing fill material of a different type to that specified in or by the contract which was not provided for in the schedule of rates.
CMC counterclaimed for –
•restitution of amounts paid by it to AE in pursuance of BCIPA;
•restitution of overpayments made by it to AE in relation to inclement weather and delay; and
•damages on the basis of AE’s alleged misrepresentations.
The hearing before me involved competing applications to strike out pleadings and, as put by Mr Campbell for CMC, “skirmishes aplenty”.
There were three applications before me: one by AE and two by CMC.
AE’s application
AE applied for nine orders in an application filed 16 November 2018.
I was able to deal with part of the application at the hearing. These reasons deal with the balance of it, namely AE’s applications for orders –
•striking out parts of the defence and counterclaim;
•concerning the defendant’s particulars;
•requiring the defendant to make certain disclosure; and
•requiring the defendant to convert emails which had been electronically disclosed to “full text searchable multi-page PDF files”.
After the application to strike out parts of the defence and counterclaim was made, the plaintiff filed two later versions of its statement of claim – the Further Amended Statement of Claim (FASOC) filed on 25 January 2019 and the Second Further Amended Statement of Claim (2FASOC) filed on 21 March 2019. The paragraphs of the defence and counterclaim about which AE complained responded to an older version of the statement of claim, that is the Amended Statement of Claim (ASOC).
CMC’s applications
In an application filed 16 November 2018, CMC applied for the variation of an order made by Brown J on 26 September 2018.
In another application filed 11 March 2019, CMC applied for orders –
•striking out parts of the Further Amended Statement of Claim (FASOC);
•striking out certain particulars; and
•requiring particulars of certain paragraphs of the FASOC.
Progress of the hearing and additional submissions
Complaints superseded or inutile
CMC submitted that AE’s complaints about certain paragraphs of CMC’s pleadings had been superseded because of amendments to AE’s statement of claim.
CMC submitted that, if the plaintiff complained about CMC’s response to one of its paragraphs, which the plaintiff had amended since making the complaint, then CMC ought to be provided with an opportunity to respond to the amended paragraph before I considered any complaint about its response to the old version of it. Also, CMC submitted that, if it were successful in its application to strike out a certain paragraph of the 2FASOC, any complaint by the plaintiff about the corresponding paragraph of the Further Amended Defence and Counterclaim (FADCC) was inutile.

CMC agreed to prepare a schedule which listed the paragraphs of the FADCC about which there had been a complaint, which responded to paragraphs of the plaintiff’s pleadings which had been “materially amended” or to paragraphs of the plaintiff’s pleadings which CMC alleged were defective and ought to be struck out. AE was to add to that schedule its response to CMC’s position.
The schedule was completed by the parties and provided to the Court on 1 May 2019.
Disclosure
Although the parties made some oral submissions about disclosure at the hearing, I was required to consider that issue primarily on the basis of written submissions.
The plaintiff had attached to its original written submissions a document entitled “Schedule C – Schedule of Non-Disclosed Documents”. It provided an amended copy of that schedule at the hearing.
The amended Schedule C[4] contained a short statement of the basis upon which the plaintiff said it was entitled to disclosure of a certain document and its understanding of the basis upon which the defendant resisted disclosing the document. I received the document acknowledging that it contained the plaintiff’s understanding of the defendant’s position rather than the defendant’s own statement of its position.
[4] Exhibit F for identification.
There had in fact been further disclosure after Schedule C had been amended and I asked the parties to provide me with a revised list of the documents the subject of dispute.
On 12 April 2019, CMC provided its version of Schedule C.
CMC’s version of Schedule C was sent under cover of an email dated 12 April 2019 which explained that the document contained its “reasons” with respect to the documents in dispute, which were “largely the same as those recorded in exhibit KR-87 of Ms Reading’s affidavit of 3 April 2019 (Court document 70), but have been slightly expanded upon in some respects and updated to respond to the submissions contained in the plaintiff’s version which was handed up to the Court”.
The email continued –
“We note that the version of the schedule handed up by the plaintiff did not include the defendant’s reasons for non-disclosure as were set out in KR-87, but rather, included an earlier version which was subsequently superseded.
The document has also been updated to strike through documents which were disclosed by the defendant following the hearing.
The defendant’s understanding was that it was Her Honour’s intention for the parties to jointly provide a schedule setting out each parties’ position with respect to the outstanding documents. Unfortunately we have been unable to reach agreement with the solicitors for the plaintiff as to the content of the document.
Accordingly, if Her Honour is so minded, we are content for the plaintiff to provide a separate response to the defendant’s reasons as contained in the attached schedule, within 7 days.”
The plaintiff replied to that email by informing me (through my associate) that it objected to CMC’s schedule being provided to me.
In an attempt to resolve this issue, I brought the matter on for review on 17 April 2019. At the review, Mr Codd submitted that CMC had re-opened its case and made fresh submissions in the document it provided to me. He also complained – in effect – that he had not appreciated that CMC would rely on KR-87 and parts of it were plainly objectionable.
Mr Codd’s concern, as I understood it, was that I would act on CMC’s solicitor’s opinion about the relevance of a document. Without having considered in detail CMC’s document, I said to Mr Codd that, if I intended to rely upon something other than my evaluation of relevance in making decisions about disclosure, then I would give him an opportunity to reply. Mr Codd submitted, as he had done at the hearing, that I ought to call for the documents to determine their relevance.
I permitted Mr Codd to reply (in writing) to the submissions contained in CMC’s revised Schedule C which he asserted were fresh submissions.
Having now reviewed KR-87, I suspect Mr Codd’s complaint to have been about statements in KR-87 beginning with something like “In my view, none of the paragraphs of the WICET Judgment referred to by the plaintiff confirm that the report is directly relevant …”
I did not notice statements of that type in the revised version of Schedule C sent under cover of the email dated 12 April 2019. Regardless, the limited weight to be given to such a statement of opinion is obvious. As will be seen below, where necessary, I conducted my own review of the nominated paragraphs of the WICET judgment to determine whether the documents sought were directly relevant to the allegations in the present matter.
On 1 May 2019, the plaintiff sent to the court a further revised Schedule C, containing its responses to CMC’s “reasons”. This was the document upon which I was to base my decision about AE’s application for disclosure.
Seven days later, on 8 May 2019, CMC sent to me, via my associate, unsolicited, its response to AE’s submissions of 1 May 2019 which it sought to make as a matter of “procedural fairness”.
AE (by e-mail) objected to those further submissions. It submitted that I ought not to receive them because I had made no direction permitting them, nor had CMC sought AE’s consent to them.
I informed the parties that I would deal with whether or not I should receive CMC’s submissions in these reasons.
Each party has accused the other of slipping fresh submissions into documents intended to be for the assistance of the court. This difficulty arose because the parties grossly underestimated the time it would take for the court to hear the three applications and because, in many respects, the applications were premature – after they were filed the plaintiff’s pleadings were amended and disclosure continued – which meant that the written submissions which the parties exchanged before the hearing were outdated.
I am dealing with matters of procedure and my focus is on bringing these procedural matters to a resolution, having regard to the philosophy of the Uniform Civil Procedure Rules and practice direction 18 of 2018. AE’s submission, that I ought not to consider further submissions from CMC, is made in the context of an argument about disclosure.
Having regard to the content of AE’s written submissions of 1 May 2019, which included unfounded accusations against CMC’s solicitor, I considered it appropriate to permit CMC to respond to AE’s written submissions to the extent that they raised matters which had not been raised previously.
Related litigation: Civil Mining & Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd [2017] QSC 85
At least from the plaintiff’s perspective, relevant to this matter is the fact that the defendant was the plaintiff in an action against Wiggins in which it made four major claims, including a claim for variations and directions said to have affected the bulk earthworks on the Reclamation C Bunds, and a claim for delay costs for the works as a whole.
The related matter was heard by Flanagan J. His Honour’s judgment was published on 19 May 2017: Civil Mining & Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd [2017] QSC 85 (CMC v WICET).
AE asserted that the CMC v WICET litigation was “factually overlapping” and “parallel” to the proceeding between it and CMC. Several of AE’s complaints about CMC’s particulars were to the effect that, having been a party in the CMC v WICET litigation, CMC must be able to, and did not need more time to, provide the particulars sought by AE.
I note CMC’s contrary assertion that the present proceedings are “by no means” parallel to the CMC v WICET proceedings, which concluded a year before the present proceedings were commenced. I note also CMC’s contention that the proceedings are not “factually overlapping”. CMC submitted that the delays complained about in CMC v WICET were not the delays complained about by the present plaintiff. The present plaintiff contended that the delays were the result of its being unable to use its plant. The delay alleged in CMC v WICET was one which was a consequence of delayed productivity and inefficiency.
Relevant principles
In Equititrust Limited v Tucker and Others (No 2) [2019] QSC 248, Bowskill J recited the uncontroversial principles which apply to applications of this kind. Relevantly, her Honour said (emphasis by her Honour, footnotes and citations omitted) –
“[6] The starting point is rule 5 of the Uniform Civil Procedure Rules 1999 (Qld), which provides:
‘(1)The purpose of the rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.
(2) Accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.
(3) In a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way.
(4)The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court.’
[7] I keep that steadily in mind in determining these applications, as rule 5(2) requires the court to do. The parties (and their lawyers) are also obliged to act consistently with rule 5 …
[8] In relation to the strike out applications, the applicants rely upon r 171 UCPR, which confers a discretion on the court to strike out all or part of the statement of claim if it, relevantly, discloses no reasonable cause of action; has a tendency to prejudice or delay the fair trial of the proceeding; or is otherwise an abuse of the process of the court.
[9]     Where the effect of the invocation of the power would be to summarily dismiss a party’s claim, or part of it, the court is to adopt a cautious approach and the discretion should only be exercised in the clearest case …
[10]   The focus of such an application is the pleading itself. As such, the court ordinarily assumes the factual allegations made by the plaintiff can be established; particularly where the application is brought at an early stage …
[11]   …
[12]   …
[13]   Where the application to strike out is on the basis of deficiency in the pleading, which may be remedied by re-pleading, the particularly cautious approach warranted in cases of summary dismissal does not apply. A pleading may be deficient, and be liable to be struck out (for example on the ground that it has a tendency to prejudice or delay the fair trial of the proceeding) because it fails to fulfil the function of a pleading, which is to identify the issues which require the court’s attention and determination, provide a structure for the proceeding by providing the framework for disclosure and admissibility of evidence at trial, and to ensure a fair trial by giving the other parties fair notice of the case they must meet. The function of a pleading is discharged ‘when the case is presented with reasonable clearness’. Conversely, a pleading will be deficient if it is ‘ambiguous, vague or too general’, such that the other party does not know what is alleged against them.
[14]   A pleading must contain a statement of all the material facts (that is, the facts necessary for the purpose of formulating a complete cause of action) relied upon (r 149(1)(b)). Particulars are not meant to be used to fill material gaps in a pleading. They serve a different purpose, which is ‘to fill in the picture of the plaintiff’s cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet’; although in practice the distinction may be difficult to discern.
[15]   Importantly, though, ‘pleadings are not an end in themselves, instead they are a means to the ultimate attainment of justice between the parties to litigation’. As the Full Court of the Federal Court … observed in Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15 at [13], for these reasons ‘the courts do not, at least in the current era, take an unduly technical or restrictive approach to pleadings’. As their Honours also observed, contemporary approaches to case management are in part responsible for this change. They refer in this regard to the observations of Martin CJ in Barclay Mowlem Construction Limited v Dampier Port Authority (2006) 33 WAR 82 at [4]-[8], where his Honour said:
‘4.It is, I think, important when approaching an issue of that kind to bring to mind the contemporary purposes of pleadings. The purposes of pleadings are, I think, well known and include the definition of the issues to be determined in the case and enabling assessment of whether they give rise to an arguable cause of action or defence as the case may be, and appraising the other parties to the proceeding of the case that they have to meet.
5.In my view, the contemporary role of pleadings has to be viewed in the context of contemporary case management techniques and pre-trial directions. In this Court, those pre-trial directions will almost invariably include; firstly, a direction for the preparation of a trial bundle identifying the documents that are to be adduced in evidence in the course of the trial; secondly, the exchange well prior to trial of non-expert witness statements so that non-expert witnesses will customarily give their evidence-in-chief only by the adoption of that written statement; thirdly, the exchange of expert reports well in advance of trial and a direction that those experts confer prior to trial; fourthly, the exchange of chronologies; and fifthly the exchange of written submissions.
6.Those processes leave very little opportunity for surprise or ambush at trial and, it is my view, that pleadings today can be approached in that context and therefore in a rather more robust manner, than was historically the case; confident in the knowledge that other systems of pre-trial case management will exist and be implemented to aid in defining the issues and appraising the parties to the proceedings of the case that has to be met.
7.In my view, it follows that provided a pleading fulfils its basic function of identifying the issues, disclosing an arguable cause of action or defence, as the case may be, and appraising the parties of the case that has to be met, the Court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the Court to be spent extensively debating the application of technical pleadings rules that evolved in and derive from a very different case management environment.
8.Most pleadings in complex cases, and this is a complex case, can be criticised from the perspective of technical pleading rules that evolved in a very different case management environment. In my view, the advent of contemporary case management techniques and the pre-trial directions, to which I have referred, should result in the Court adopting an approach to pleading disputes to the effect that only where the criticisms of a pleading significantly impact upon the proper preparation of the case and its presentation at trial should those criticisms be seriously entertained.’
[16]   Martin CJ’s observation in [8] reflects the observation made many years earlier, by Lord Templeman in Williams & Humbert v W & H Trade Marks (Jersey) Ltd [1986] 1 AC 368 at 435-436 that:
‘My Lords, if an application to strike out involves a prolonged and serious argument the judge should, as a general rule, decline to proceed with the argument unless he not only harbours doubts about the soundness of the pleading but, in addition, is satisfied that striking out will obviate the necessity for a trial or will substantially reduce the burden of preparing for trial or the burden of the trial itself.’
[17]   Also in the Barclay Mowlem case, Martin CJ was critical of objections to the pleading which were ‘pedantic and pettifogging in nature’ (at [9]); and drew a distinction between the ‘lawyer looking at that pleading, genuinely interested in knowing what issues are to be tried and the case that has to be met, [who] would have no difficulty in ascertaining those matters’ (at [10]) and the ‘lawyer interested in technical advantage, obfuscation and delay’, ‘feign[ing] ignorance of the substantive issues that emerge from that pleading and the case which has to be met’ (at [12]).’
I have approached these applications having regard to these principles.

PART A: CMC’s application to strike out parts of AE’s pleadings – overview

CMC applied to strike out certain paragraphs of the FASOC and their particulars (including certain appendices). It applied for particulars of other paragraphs of the FASOC. Of course, by the time of the hearing, the statement of claim had been amended to take the form of the 2FASOC. I have considered CMC’s complaints against the 2FASOC.
CMC submitted that AE’s pleadings did not “coherently articulate” its case. It submitted that certain paragraphs of the statement of claim ought to be struck out because they failed to disclose a reasonable cause of action; failed to sufficiently inform CMC of the case it had to meet; or would, if permitted to proceed to trial, prejudice, embarrass or delay a fair trial.
In its written submissions, CMC referred to many authorities in support of its strike out application, including Thiess Pty Ltd v FFE Minerals Australia Pty Ltd [2007] QSC 209, in which White J said at [38], “[T]he defendant cannot be expected to intuit what the plaintiff intends to convey in its pleadings by its own understanding of the facts in the circumstances giving rise to the litigation”.
CMC referred to Thiess for the following statement about particulars also (at [35] , White J quoting from Bruce v Odhams Press [1936] 1 KB 697) –
“The use of particulars is intended to meet a further and quite separate requirement of pleading, imposed in fairness and justice to the defendant. Their function is to fill in the picture of the plaintiff’s cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial.”[5]
[5] At 11, [35] quoting Scott LJ in Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712-713.
CMC referred to Bloeman v Atkinson [1977] Qd R 291 to make the point that in relation to a request for particulars, it was not enough for a party to simply refer to a document as the basis of its case – it was required to state the effect of the portion of the document upon which it relied.
AE complained that many of CMC’s complaints about AE’s pleadings were irregular including because they had not been first made in correspondence under Part 8 of Chapter 11 of the Uniform Civil Procedure Rules or were “of recent invention”. For that reason, and because CMC failed to comply with orders of Brown J made on 5 December 2018 and 5 February 2019, AE argued that CMC’s application ought to be dismissed.
I am of the view that the matters raised have been fairly ventilated and should be determined by me. I have therefore considered CMC’s application on its merits.
CMC’s complaints about particular paragraphs of the FASOC/2FASOC
I have only considered for strike out those paragraphs which were the subject of oral submissions. I note that several of the paragraphs about which complaint was made had been amended (as per the FASOC and the 2FASOC).
Paragraph 27(c)
The non-compliance with rule 444 point
AE submitted that CMC’s complaint about paragraph 27(c) of the 2FASOC was one of the matters I ought not to entertain because CMC had not previously complained about it in its “rule 444 letter”.
CMC accepted that its complaint about paragraph 27(c) was not “squarely made” in its rule 444 letter but submitted that there was nothing in AE’s complaint because this application “did not fall within the scope of rule 443”. CMC argued that there was no prejudice to AE in CMC making this complaint now. Indeed, AE had in fact amended paragraph 27(c).

CMC relied upon Meredith v Palmcam Pty Ltd [2001] 1 Qd R 645. In that case, the same complaint was made. The Court of Appeal explained that while the court had a discretion to hear a non-compliant application, there had to be good reason for it to do so (emphasis added):
“[8] … the defendants themselves were in breach of their obligations under the Uniform Rules. They applied to strike out the plaintiff’s action without first complying with r. 444 of the UCPR. His Honour considered that the plaintiff’s reliance on that omission was “unanswerable”, which, in the end, he regarded as conclusive against the defendants’ application to strike out the statement of claim. Rule 444 requires that before making an interlocutory application of the types set out in r. 443, an applicant must write to the respondent specifying the applicant’s complaint, a brief statement of the relevant facts, the relief sought by the applicant, why the applicant should have the relief, the time … within which the respondent must reply to the letter and that the letter is written under part 8 of chapter 11. Certain other procedural requirements follow. Although the court has the discretion to hear an application which does not comply with these requirements, good reason would have to be shown if it were to do so. This is because the requirements of r 444 serve the very useful purpose of alerting the respondent to the applicant’s complaints giving the respondent the opportunity to respond or remedy the problem. This often obviates the need for the applicant to bring an application in court which serves the purpose of the UCPR set out in r. 5(1) to ‘facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense’. For this reason we have formed the opinion that this is not a matter in which it would be appropriate to grant leave to appeal …”
CMC also relied upon BTU Group & Ors v Noble Promotions P/L & Ors [2002] QCA 505. At first instance, the Applications Judge dismissed an application for further disclosure under rule 223 because the applicant had not complied with rule 444. The Court of Appeal held that rule 444 had no application to an application brought pursuant to a specific rule (that is, rule 223) –
“[4] … strictly construed Rule 444, which is of limited application, does not apply to [the application].
[5] However, experience (both of the Judges and legal practitioners) has shown that the Rule 444 procedure is useful on a much wider basis than is expressly contemplated by its provisions. In consequence the procedure has been extensively used in situations outside the strict scope of operation of the rule. That practice should be encouraged because in many instances it obviates the necessity of an application to the court. However, where the application is not one which is expressly caught by Rule 444, it would be a wrong exercise of discretion to dismiss the application because that procedure was not followed.”
I consider it appropriate to deal with CMC’s complaint about paragraph 27(c) now. If CMC requires my leave to bring this complaint, I grant it. It is a poor use of the court’s time to decide whether there has in fact been a breach of rule 444 in relation to a complaint about a limited number of paragraphs of the 2FASOC. The court’s time is best used by my dealing now with every complaint before me.
Even if there has been a breach of rule 444, that alone would be an insufficient reason for my refusing to deal with the complaint. AE has been able to address the arguments raised and has not suggested that it has been prejudiced or any other good reason why I should refuse to deal with the complaint.
Whether the fact of CMC’s failure to notify AE of some of its complaints before bringing its application has a bearing on costs may be considered separately from the merits of CMC’s application.
The substance of the complaint
CMC’s complaint about paragraph 27(c) was that it was objectively ambiguous, confusing and in the nature of a submission, yet it was identified as a basis for the damages claim in paragraph 44 2FASOC.
It invited me to contrast 27(c) with 27(a) and (b) which, it submitted, were more specific. CMC argued that 27(c) ought to be struck out because it did not identify a relevant act or omission – it simply referred to unidentified conduct attributable to the plaintiff.
AE submitted that 27(c) was a point of law which it was entitled to plead under rule 149(2). That rule states –
“In a pleading, a party may plead a conclusion of law or raise a point of law if the party also pleads the material facts in support of the conclusion or point.”
In its submissions, AE acknowledged that 27(c) as pleaded in the FASOC required “minor amendment … to clarify the allegation”. It had made that amendment, as reflected in the 2FASOC.
AE submitted that there was no disadvantage to the defendant in 27(c) being pleaded – and indeed, AE submitted, it was a necessary element of the way in which the claim was articulated.
AE submitted, in effect, that the defendant’s approach was to concentrate on the minutiae of the pleading, without considering it as a whole. Further, AE submitted, paragraph 27(c) was properly utilised in paragraphs 43, 44 and 45 of the 2FASOC and it was relied upon in the Reply and Answer (in paragraph 30 – which refers to paragraphs 26 to 34 of the 2FASOC).
Conclusion
Paragraph 27(c) is not to be struck out.
I consider that paragraph 27(c), read in the context of paragraph 27 as a whole, and in the context of the whole of the 2FASOC, provides reasonable clarity about the case that the defendant has to meet.
To make that point, I note that the relevant part of the pleading is to this effect –
·under the Subcontract (or Contract),[6] CMC was to provide, and maintain for, AE “Sufficient Access” to commence and undertake its work by 19 October 2011;
[6] I note that the 2FASOC refers to the agreement between AE and CMC as the Contract rather than the Subcontract.
·that Sufficient Access included unimpeded access (apart from reasonable construction traffic) to physical locations upon which or over which AE was required to perform work or traverse to perform work and reasonable trafficable travel paths;
·CMC was to pay AE at Standby Rates for any “stop work, delay commencement of work” or “standby for any reason beyond [AE’s] control”;
·failure to provide Sufficient Access was a breach of contract for which AE was entitled to damages or a “stop work” et cetera entitling AE to be paid at Standby rates (paragraph 27(a));
·“further and in the alternative”, an inclement weather event, an act or omission of the defendant, suspension or any other event beyond the control of the plaintiff, entitled the plaintiff to be remunerated at Standby Rates (paragraph 27(b));
·“further and in the alternative”, an act or omission of the defendant or its servants or agents, which resulted in conduct contrary to the terms of the Subcontract, was–
oa breach of contract in respect of which AE was entitled to –
§its consequential loss or damage”; and/or
§relief from an obligation under the Subcontract to the extent to which the act or omission interfered with AE’s performance of the obligation; and/or
§its costs arising therefrom as damages (paragraph 27(c)).
In my view, the drafter’s meaning is reasonably clear. It is not vague or ambiguous. The plaintiff is conveying that it is making a claim for breach of contract against CMC or, in the alternative, a claim for Standby Rates because it was stopped or delayed in its work, or required to Standby, for reasons or events beyond its control. It also asserts that it was relieved of its obligations under the Subcontract to the extent to which CMC’s acts or omissions interfered with AE’s performance of its obligations under the Subcontract.
Paragraphs 36 – 38
CMC’s primary complaint was that AE’s “Access Claims” (which included these paragraphs) were deficient because they were (improperly) pleaded as global claims. AE had not pleaded the necessary facts said to give rise to the causal connection between the alleged breach and the resulting loss or contractual entitlement.
CMC submitted that AE’s claim was to be understood as follows –
·AE claimed that it was entitled to recover payment for Standbys which were caused by CMC’s failure to give it sufficient access to different parts of the site as a breach of contract and as “Standby for any reason beyond the plaintiff’s control”;
·AE asserted three separate access delays in its 2FASOC, namely delays brought about because –
oCMC failed to complete the construction of the first section of the GPN haul road by 11 October 2011[7] (paragraph 33);
oCMC failed to complete the Pyealy Creek haul road crossing by the access date of 17 November 2011 (paragraph 34); and
oCMC failed to give AE access to the rail receival area (paragraph 35).
[7] CMC provided limited access to the GPN haul road on 27 November 2011; and sufficient access “on or between 4 February 2012” [sic].
The assertion of three separate delays was at the heart of CMC’s complaint about the global basis upon which the standby claims were made. Indeed, counsel for CMC observed, a fourth delay was asserted in paragraph 35A of the 2FASOC, associated with AE’s plant standing by while rocky materials were won.
He complained that the separate delays were referred to, and dealt with, collectively in the 2FASOC at paragraph 36, which was in these terms:
“Pursuant to the matters pleaded in paragraphs 33 to 35A hereof, the defendant delayed the use by the plaintiff, in whole or in part, of its plant, equipment and personnel, or parts therefor for the performance of the Work [the Defendant’s Delays].”
CMC complained that AE had not identified which of the access delays caused which plant, and which people, to be placed on standby. Counsel submitted that –
·AE’s failure to establish a causal link between the access delays and the standing by of particular plant was prejudicial to CMC;
·the particulars did not establish the causal nexus as required: rather they confirmed that the claim had been pleaded on a global basis; and
·this was not a case in which the plaintiff was entitled to plead globally because it was impossible or impracticable to untangle the causative nexus.
I will not discuss all of the authorities to which CMC referred to make its point that it was incumbent upon AE to plead the necessary facts which were said to give rise to the pleaded causal connection between the alleged breach and the alleged loss or contractual entitlement. It is enough to repeat the principle as stated by Douglas J in LBS Holdings P/L v The Body Corporate for Condor Community Title Scheme 13200 & Ors [2004] QSC 229 at [3]:
“… [F]acts must be set out which lead to a reasonable inference that the acts complained of and the loss claimed stand to each other in the relation of cause and effect and that the plaintiff must plead the necessary facts showing that causal link …”
In support of its complaint that AE’s pleadings were deficient, CMC referred to

DM Drainage & Constructions as trustee for DM Unit Trust t/a DM Civil v Karara Mining Limited
[2014] WASC 170, a decision of Beech J.
In that case, Karara applied to strike out DM Civil’s statement of claim on the ground that it failed to disclose a reasonable cause of action or, alternatively, if permitted to proceed to trial, it would impose an unreasonable and unfair burden on Karara and would prejudice, embarrass or delay a fair trial of the action.
Whilst CMC relied on this case for it statements about global claims, I note that Beech J discussed the general principles applicable to strike out applications, and the purpose of pleadings in the context of case management, which discussion is also relevant in the present matter and which I have taken into account.
With respect to case management principles, his Honour quoted from Martin CJ’s judgment in in Barclay Mowlem Construction Limited v Dampier Port Authority,[8] including the following paragraph (which, for ease, I will repeat here, even though it appears above) –
“… provided a pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action or defence, as the case may be, and apprising the parties of the case that has to be met, the Court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the Court to be spent extensively debating the application of technical pleading rules that evolved in and derive from a very different case management environment.”
[8] Referred to by Bowskill J in Equititrust above.
Beech J continued (footnotes omitted) –
“[31] It will be seen from this passage that it remains an essential requirement for a pleading to fulfil its basic functions of identifying the issues, disclosing an arguable cause of action and apprising the parties of the case that has to be met.
[32]   A statement of claim must not plead allegations at too high a level of generality. A pleading must be sufficiently particular to conform with one of the primary objects of pleadings, to inform the opposing party of the case that it must meet. Whether it is sufficient to plead simply that one thing caused another, or whether further facts must be pleaded to establish a causal link, will depend on the pleaded facts and circumstances.
[33]   The caution with which a pleading will be struck out on the ground that it does not disclose a reasonable cause of action is well known.
[34]   Pleadings may be struck out on the ground that they may prejudice, embarrass or delay the fair trial of the action ‘because they are evasive, they conceal or obscure the real questions in controversy, they are ambiguous or not reasonably intelligible, they raise immaterial or irrelevant issues, they fail to confine the issues or state the case of the party in question with reasonable particularity, or they raise a case in terms which are simply too general’.”
The complaint in DM Civil was that the claim was a global claim (and a modified total costs claim) but that it did not satisfy the essential requirements of such a claim.

DM Civil denied that its claim was of such a character.
Beech J explained at [36] that a global claim was one in which a plaintiff claiming under a construction contract contended that a defendant was responsible for multiple interacting events. Rather than attempting to identify the precise loss from each event, a plaintiff pursued a claim for a global loss which it said was caused by all of the events for which a defendant is responsible.
His Honour was satisfied that DM Civil’s claim was a global claim and a modified total costs claim. As to the claim being a global claim, his Honour said –
“[41] The claims are global in nature because nothing in the statement of claim or schedules attempts to draw any causal link between any particular items in sch A (the giving of access or approval), sch B (the sequencing directions), or sch F (the issue of IFC drawings) and any particular consequence in relation to any particular part of the work identified in sch C, or to the incurring of any particular cost referred to [in] sch C …”
His Honour explained that that proposition was not seriously contested by DM Civil, but DM Civil contended that Karara did not appreciate the nature of its case.
His Honour further explained at [54], by reference to authority, that a global claim was permissible only where it was impossible or impracticable to disentangle part of the loss which is attributable to each head of claim, and where that situation has not been brought about by delay or other conduct on the part of the claimant.
Drawing on DM Civil and other authorities, CMC argued that AE’s access claims, pleaded in paragraphs 36 – 38 and 40 – 45, were global claims. It argued that nothing in the FASOC (or the 2FASOC) or the schedules attempted to draw a causal link between the alleged breaches of contract by way of delayed access to separate parts of the site and the consequence (that is, the standby of certain plant and personnel). It argued that causation was pleaded on a global basis in circumstances where such a plea was not permitted.
CMC outlined the prejudice it alleged it would suffer were the trial to proceed on the 2FASOC. The alleged prejudice included CMC’s being unable to show that plant and personnel were on standby not because of an access delay but because of something for which AE was responsible. If the plaintiff could not “untangle the web” then it was required to say so. The position was compounded, CMC alleged, because AE pleaded that the delays caused by CMC delayed the use by AE “in whole or in part” of its plant, equipment and personnel.
CMC asked me to look at the way in which paragraph 36 was amended, as marked up in the FASOC. The amendment was by way of reference to the schedules containing further and better particulars. CMC argued that no matter how voluminous the particulars, they did not identify the causal nexus between the access delays in 33 to 35 and the claims in 36 to 38.
Counsel for CMC took me through the various particulars schedule. He pointed out certain inconsistencies between the delay periods pleaded and the delays identified in schedule 1A. He submitted that delayed entry to a haul road, for example, would have a different impact on different types of plant (cf an excavator, a dump truck or a compactor). He made a similar complaint about claims for delayed labour/operator hours.
Counsel argued that paragraph 36(e) just “skirted around the issue”. That paragraph explained that the plant and equipment which was not utilised as per schedule A2 was on standby.
CMC submitted that the Consequential Delays in paragraphs 41 – 43 of the FASOC and the paragraphs dealing with the additional supervision and labour costs (paragraphs 44 – 47) suffered from the same defect because they were premised upon having been caused by each and every one of the Defendant’s Delays pleaded in 32 – 40.
In response to the complaint that it had made a global claim, AE submitted that CMC did not understand the case it had pleaded. Its case was that the defendant did not, “at the times standby was claimed” have “sufficient” of the work areas available for the plaintiff to apply its resources to “efficiently”.
AE argued that CMC erroneously asserted that AE’s claim was an impermissible global claim. It argued that principles which arose in the context of damages claims for breach of contract on lump sum contracts were not applicable to schedule of rates contracts which provided a contractual remedy to the plaintiff. It asserted that CMC had “conveniently” misconstrued the plaintiff’s pleading in paragraph 37(f) of its outline. AE set out its case at paragraph 78 of its outline. It invited me to compare the outlines in this respect. That comparison follows.
In paragraph 37 of its outline, the defendant stated –
“The general structure of the Access Claims is as follows –
a)       that the contract required CMC to provide and maintain for Alexanderson’s benefit “Sufficient Access”, defined as being an obligation to ensure unimpeded access to all locations on site where Alexanderson was required to perform the work or traverse to perform work (paragraph 26);
b)      a contractual entitlement to payment at Standby Rates for any “stop work, delay commencement of work” or “standby for any reason beyond the (plaintiff’s) control” (paragraph 26(d));
c)       failure to ensure “Sufficient Access” would be a breach of contract entitling Alexanderson to payment at the Standby Rats, further and alternatively inclement weather, any act or omission of the defendant or anything else beyond Alexanderson’s control would entitle it to payment at the Standby Rates (paragraph 27);
d)      that various directions were given by CMC to Alexanderson to mobilise to site even though areas were not available for work (paragraphs 28 to 32);
e)       that CMC failed to give Alexanderson access to each of four areas of the site over varying periods between October 2011 and April 2012 by specific access dates applicable to each work area (paragraphs 33 to 35A) (referred to in these submissions as the Access Delays);
f)       pursuant to those Access Delays pleaded in paragraphs 33 to 35A, CMC delayed the use by Alexanderson of its plant, equipment and personnel to perform the work (defined as “the Defendant’s Delays”), which Alexanderson says were the sole cause of the plant being placed on standby (paragraph 36);
g)       pursuant to all of the matters pleaded in paragraphs 26 to 36, as a consequence of the Defendant’s Delays some of the plant was not able to be utilised at times (defined as “the Standbys”) (paragraph 37);
h)       this entitled Alexanderson to payment under the contract for “the Standbys” (paragraph 38);
i)        the Access Delays, “in whole or in part” prevented Alexanderson from completing the work by the date for practical completion of 20 March 2012 (paragraph 40);
j)       as a consequence of the Access Delays, Alexanderson was further disrupted by inclement weather between the date for practical completion and the date of practical completion in September 2012, and was required [to] work on two public holidays (paragraph 41) for which it claims payment at the Standby Rates and damages (paragraph 42 and 43);
k)      pursuant to all the previous matters, the Access Delays were a breach of the contract for which Alexanderson seeks damages for additional costs (paragraphs 44 and 45).”

At paragraph 78 of its submissions, AE stated (footnotes omitted): –
“The plaintiff’s claim is:
a)       The plaintiff was required by the Contract and the defendant to, and did, mobilise all of its plant equipment and personnel as soon as practicable after 19 October 2012.
b)      Upon the aforesaid mobilisation, the only work area available to the plaintiff was the GPN Borrow Pit rock screening area and that area could only utilise limited plant.
c)       The plaintiff’s plant, equipment and personnel were otherwise unable to be immediately utilised by reason of the defendant’s failure to provide access to each of the work areas upon which the plaintiff was to perform work except for:
(i)dayworks instructed by the defendant or the contractor’s representative;
(ii)for limited activities in work area progressively released;
until the defendant released, progressively, each of the three main work areas.
d)      The plaintiff was entitled, under the Contract, to be paid by the defendant for its plant, equipment and personnel for the periods when each was unable to be used for the performance of the work by reason of a matter beyond the control of the plaintiff.
e)       The amount the plaintiff was entitled to be paid was $1,761,349, as calculated by reference to rates agreed in the Contract for each item of plant or equipment, and each worker, prevented from performing the work.”
AE noted the “key differences” between the way it pleaded its case and the way CMC understood it were apparent in CMC’s paragraphs (f) and (g). AE contended the differences were the consequence of CMC treating the claim on a “minutiae basis” rather than reading the claim in context.
AE submitted that there was one cause of standby pleaded – namely, that the defendant told the plaintiff to get the plant to site and when the plant arrived, there was nothing for it to do. There were then three “key elements whereby the cause of the standby was abated”. CMC did not understand its claim: it was not the access delays that caused the standby – it was the direction to get to site. AE argued that it claim as articulated “did not contend for a loss based upon multiple interacting events for which the defendant was responsible”.
I pause here to note that, in my view, CMC’s outline of AE’s pleading bears a closer resemblance to the 2FASOC than AE’s outline. In my view, CMC’s outline of the 2FASOC cannot be said to be a consequence of its failure to read the statement of claim as a whole.
AE argued that CMC’s application, insofar as it made a global claim complaint, ought to be dismissed for the same reason as a similar complaint was dismissed by McMurdo J (as his Honour then was) in Lacaba Ahden Australia Pty Ltd v Bucyrus (Australia) Pty Ltd [2006] QSC 147. In that matter, his Honour found, among other things, that the defendant did not understand the plaintiff’s case.
Lacaba claimed that it had not been fully paid for its work in the erection and commissioning of a dragline at a coal mine. Lacaba contended that it was entitled to further sums because its achievement of practical completion had been delayed by causes beyond its control, including the defendant’s acts or omissions.
One of Lacaba’s claims was in connection with a performance bonus to which it was entitled, for each day by which the actual date of practical completion preceded the agreed date. The agreed date had been postponed by a certain number of days to 19 April 2000. Lacaba achieved practical completion on 17 April 2000. It received a two day bonus but claimed that the date for practical completion ought to have been extended to 21 May 2000, entitling it to bonus for another 32 days.
Under the contract, the agreed date for practical completion might be extended if the delay in achieving practical completion was brought about by a cause beyond Lacaba’s control. Lacaba identified the events which it said were beyond its control and which together delayed practical completion by 32 days. Those events were set out in Schedule 1 to its claim. The events included “item 8” which involved events said to have caused 25 of the 32 days delay. Those 25 days fell in the post-machinery period.
The defendant complained that the plaintiff had not pleaded or particularised the facts by which each of the item 8 events was a cause of delay in achieving practical completion.
His Honour had previously required the plaintiff to amend item 8 so that it corresponded with the plaintiff’s case as articulated by its expert. Item 8 was re-pleaded by –
·stating that it estimated that 25 days delay was caused by events for which it was not responsible; and
·listing the causally significant events, namely (a) item 8 variations; and (b) other events identified in its experts report.
It continued,[9] (my emphasis):
[9] As set out in [5] of the judgment.
“3. As to the manner in which the causally significant events caused the 25 days delay –
(a) The delay caused by the item 8 variations (without taking account of their displacement and disruptive impact) may be assessed by apportioning delay according to the proportion between the manhours expended on scope work during the post-machining period and manhours expended on variation work during the post-machining period. Using this methodology, Lacaba estimates that the item 8 variations cause between 18 and 19 days delay during the post-machining period.
Particulars
The way in which the 18 day estimate is reached is explained in section 3.6 of the expert report … The way in which the 19 day estimate is reached is explained in paragraph 131 of the expert report …
(b) Lacaba estimates the balance of the 25 days it has claimed may be regarded as having been caused by the displacement and disruptive effect of the item 8 variations and the other events identified in … paragraph 135 of the expert report.
Particulars
The way in which the assessment may be reached that the balance of the 25 days claimed may be regarded as having been caused by the displacement and disruptive effect of the item 8 variations and the other events … is explained in section 3.6 of the expert report, in particular section 3.6.6 of the expert report.
(c) In respect of the estimates pleaded in the previous subparagraphs, Lacaba says that:
(i) It is impossible or, alternatively, impracticable for Lacaba to identify a connection between each of the causally significant events which it has identified and a discrete amount of delay. The delay which was suffered occurred because of a complex interaction between the causally significant events and their consequences.
(ii) There is no other explanation for that delay than the causally significant events which Lacaba has identified.”
Thus, as His Honour explained, Lacaba’s case was that, but for the combined effect of the events described in item 8, the work in the post-machining period would have been completed in two days – not 27 days. Its expert’s report said so by reference to certain evidence. However, the defendant complained that the expert’s report did not explain the way in which each event had a causal effect on the date of practical completion.
The defendant accepted that the plaintiff was not required to particularise a discrete period of delay caused by each alleged delaying event. But it argued that the plaintiff should provide particulars explaining why it asserted that an event was, or would of necessity be, causative of delay, so that it could understand and respond to the case. It referred to its own expert’s (Mr King) statement that he needed to understand the causal relationship between the events alleged to have created delay, and the delays, so as to determine their impact on the completion of the project. Mr King could not understand the causal relationship from Lacaba’s expert’s (Mr McQueen) report because it did not identify, “variation by variation” how the additional work impacted upon succeeding activities.
In dismissing the application for particulars, his Honour said (my emphasis) –
“[11] As it appears to me, the defendant and its expert have not understood the plaintiff’s case, although this is not due to a want of particulars. The plaintiff does not say that each event was causative of delay by postponing a ‘succeeding activity’. Rather, its case is that most of this delay was simply due to additions to the plaintiff’s overall workload by the defendant’s requirement for variations. Specifically, the requirement of the plaintiff’s performance of the variations which it performed after 21 March inevitably caused the overall job to be completed later than it would have been had those variations not had to be performed. Mr McQueen has calculated that the delay caused in that way accounts for 18 of the 25 days which are claimed. That calculation is criticised and I will return to it. But whether that calculation is flawed, the plaintiff’s case in this respect is in my view clear: completion was delayed by the number of days reasonably required to perform those 2,463 hours spent on variation works.Now there may be many answers to that case. For example it may not be the case, as Mr McQueen has calculated, that these 2,463 hours correspond with 18 days of work. Or it may be that contrary to what Mr Smith will say, at least some of these variations could and should have been performed at an earlier time. But in this particular respect, the case is articulated with sufficient clarity.
[12] As to scope work performed after 21 March 2000, the plaintiff’s case is that the completion was delayed by having to perform 1,271 hours of work instead of something in the range of 300 to 600 hours. The difference is attributed to what is described in the plaintiff’s case as disruption and displacement ...
[13] In respect of both disruption and displacement, the plaintiff’s case thereby describes the alleged causal connection between the events relied upon and the alleged delay in the post-machining period. The plaintiff’s case does not employ Mr King’s methodology … Rather, the case is that the same work took longer to perform because the intrusion of other work disrupted the orderly and economical performance of the scope work … The displacement case … is that there is an inherent likelihood that by the plaintiff’s having to perform extra work before 22 March in the nature of variations, and by the plaintiff’s having to wait for parts, scope work which would have been performed before the post-machining period had to be performed, as it was performed, within that period. The plaintiff’s case is that it was working as efficiently as it could and that there is no other explanation for its having to do this scope work within the post-machining period. In my view the plaintiff has sufficiently particularised its case as to how the events relied upon were causative of delay. The plaintiff is not obliged to advance its case upon [the defendant’s expert’s] methodology. If the trial judge concludes that it is only by that methodology that the alleged delay could be proved then the plaintiff will simply fail to prove its case. But I can see no unfairness to the defendant which knows by these particulars, incorporating as they do [the plaintiff’s expert’s] report and the documents and evidence referred to in it, the boundaries of the case made against it.”
I do not consider that the present defendant has misunderstood the plaintiff’s case in the same way as the defendant in Lacaba misunderstood its plaintiff’s variation case. Also I note that, in articulating its case, Lacaba stated that it was impossible or impracticable to identify a connection between a causally significant event and a discrete amount of delay and that there was no other explanation for the delay. AE makes no such assertion in its pleadings. That is one of CMC’s complaints about AE’s pleading.
As I understand AE’s point, its complaint is that one act (that is, one direction) of CMC caused it to bring its resources to site, but they sat idle until various parts of the site were available for work. In other words, AE says that, properly understood, it is not alleging that multiple interacting events for which CMC was responsible caused its resources to be on standby. AE says it has then particularised what resources were able to be used and when in various schedules to the 2FASOC. It argued that its case, so pleaded, did not make a global claim.
AE also argued that its case might be distinguished from DM Drainage because the contract in DM Drainage was a lump sum contract. AE submitted that DM Drainage concerned a delay and disruption claim, not a discrete standby claim in the context of a contract which remunerated the plaintiff on the basis of work performed under a schedule of rates.
AE argued that it had pleaded that standby was caused by the defendant’s failure to give “sufficient” access to allow “all” of AE’s resources to be applied to the work, which allowed it to be remunerated for being unable to work. This was a sufficient plea to perfect its cause of action.
In support of this argument, AE referred me to McGrath Corporation Pty Ltd v Global Construction Management (Qld) Pty Ltd & Anor [2011] QSC 178 (Daubney J) in which his Honour rejected an argument that the claim as pleaded in that case was a global claim.
McGrath (as principal) and Global (as Construction Manager) entered into a contract to construct a unit development. Global’s duties included monitoring the work of trade contractors. McGrath engaged ITF Formwork to perform form working. ITF performed its contract poorly. McGrath sued Global and ITF for damages for breach of contract and negligence. McGrath alleged that Global had breached its contract in many ways, including by failing to adequately supervise and assess the work of ITF.
His Honour found that Global had breached its contract in several ways including by failing to ensure timely identification of defects in ITF’s work and failing to oversee defect rectification. His Honour also found that Global breached the common law duty it owed to exercise the reasonable care and skill of a reasonably competent project manager in respect of the identification and oversight of rectification of defective work by a trade contractor.
Having found breach, his Honour then turned to the question whether those breaches were causative of loss, and the quantum of that loss. Among the losses claimed by McGrath were losses for delay in the completion of the project as a consequence of ITF’s defective works.
The project was not completed until 155 days after the date for completion. McGrath’s case was that the breach by Global resulted in McGrath incurring all of the extra costs incurred for the 155 day period. Global’s response was that there were numerous causes for the delay and McGrath’s attempt to attribute to it all of the delay costs for the 155 days was fundamentally flawed.
His Honour observed that the case, as pleaded and run at trial by McGrath, was that Global’s breaches were responsible for the entirety of the delay costs for the whole of the 155 day period. Global submitted that such a case failed entirely at law, and on the evidence. Counsel for Global drew analogies between McGrath’s case and global claims. His Honour stated that McGrath’s case did not involve a global claim.
His Honour said (my emphasis) –
“[127]… This case does not involve a global claim, as that term is used in the cases. A global claim is one in which a plaintiff contends under a building contract claim that there are multiple interacting events for which the defendant is responsible and then, rather than attempting to identify (if it were possible) the precise loss from each event, the plaintiff pursues a claim for the global loss which the plaintiff says was caused by all of the events for which the defendant is responsible. In the present case, what is really said is that whilst [McGrath] claims (and only claims) the whole of the delay cost over the entire period of delay, the evidence discloses that there were, in fact, numerous causes of delay and it is impossible, on the state of the evidence, to separate out the effects of those multiple causes of delay.”
His Honour referred to the authorities upon which Global relied, which included Lord MacLean’s authoritative commentary on causation and global claims in Laing Management (Scotland) Ltd v John Doyle Construction Ltd [2004] BLR 295.
His Honour set out the following lengthy passage from that case, adding emphasis as follows –
“[10] For a loss and expense claim under a construction contract to succeed, the contractor must aver and prove three matters: first, the existence of one or more events for which the employer is responsible; secondly, the existence of loss and expense suffered by the contractor; and thirdly, a causal link between the event or events and the loss and expense … Normally individual causal links must be demonstrated between each of the events for which the employer is responsible and particular items of loss and expense. Frequently, however, the loss and expense results from delay and disruption caused by a number of different events, in such a way that it is impossible to separate out the consequences of each of those events. In that event, the events for which the employer is responsible may interact with one another in such a way as to produce a cumulative effect. If, however, the contractor is able to demonstrate that all of the events on which he relies are in law the responsibility of the employer, it is not necessary for him to demonstrate causal links between individual events and particular heads of loss. In such a case, because all of the causative events are matters for which the employer is responsible, any loss and expense that is caused by those events and no others must necessarily be the responsibility of the employer. That is in essence the nature of a global claim. A common example occurs when a contractor contends that delay and disruption have resulted from a combination of the late provision of drawings and information and design changes instructed on the employer’s behalf; in such a case all of the matters relied on are the legal responsibility of the employer. Where, however, it appears that a significant cause of the delay and disruption has been a matter for which the employer is not responsible, a claim presented in this matter must necessarily fail. If, for example, the loss and expense has been caused in part by bad weather, for which neither party is responsible, or by inefficient working on the part of the contractor, which is his responsibility, such a claim must fail. In each case, of course, if the claim is to fail, the matter for which the employer is not responsible in law must play a significant part in the causation of the loss and expense. In some case it may be possible to separate out the effects of matters for which the employer is not responsible.”
His Honour continued (my emphasis) –
“[130]His Lordship then distinguished a global claim from a so-called ‘total costs claim’ and cited in respect of the proper approach to total costs claims the following from the passages from the judgment of Byrne J in the Supreme Court of Victoria in John Holland Construction & Engineering Pty Ltd v Kvaerner RJ Brown Pty Ltd [(1996)13 BCL 292]:
‘The claim as pleaded … is a global claim, that is, the claimant does not seek to attribute any specific loss to a specific breach of contract, but is content to allege a composite loss as a result of all of the breaches alleged, or presumably as a result of such breaches as are ultimately proved. Such claim has been held to be permissible in the case where it is impractical to disentangle that part of the loss which it attributable to each head of claim, and this situation has not been brought about by delay or other conduct of the claimant …
Further, this global claim is in fact a total cost claim. In its simplest manifestation a contractor, as the maker of such claim, alleges against a proprietor a number of breaches of contract and quantifies its global loss as the actual cost of the work less the expected cost …
…
The logical consequence implicit in this is that the proprietor’s breaches caused that extra cost or cost overrun. This implication is valid only so long as, and to the extent that, the three propositions are proved and a further unstated one is accepted; the proprietor’s breaches represent the only causally significant factor responsible for the difference between the expected cost and the actual cost. In such a case the causal nexus is inferred rather than demonstrated … [and] involves an allegation that the breaches of contract were the material cause of all of the contractor’s cost overrun. This involves an assertion that, given that the breaches of contract caused some extra cost, they must have caused the whole of the extra cost because no other relevant cause was responsible any part of it.’
[131] Lord MacLean, delivering the judgment of the Court, expressed agreement with the statements by Byrne J and said:
‘It is accordingly clear that if a global claim is to succeed, whether it is a total cost claim or not, the contractor must eliminate from the causes of his loss and expense all matters that are not the responsibility of the employer.’
[132] His Lordship then went on to refer to a number of mitigating considerations:
(a)It may be possible to identify a causal link between particular events for which the defendant is responsible and individual items of loss;
(b)The question of causation must be treated by the application of common sense to the logical principles of causation;
(c)Even if it cannot be said that the events for which the defendant is responsible are the dominant cause of the loss, it may be possible to apportion the loss between the causes for which the defendant is responsible and other causes. His Lordship said:
‘In such a case it is obviously necessary that the event or events for which the employer is responsible should be a material cause of the loss. Provided that condition is met, however, we are of the opinion that apportionment of loss between the different causes is possible in an appropriate case. Such a procedure may be appropriate in a case where the causes of the loss are truly concurrent, in the sense that both operate together at the same time to produce a single consequence.’”

However, for the purposes of CMC’s response, it is worth noting AE’s complaints.
In paragraph 57(b), CMC denied the allegation that AE would have completed work by 20 March 2012, even if it had been delayed by CMC – which was denied – due to AE’s own delays.
AE complained about the adequacy of the particulars provided about its own delays. Those particulars were as follows –
(i) The best particulars that the defendant can presently provide are as follows.
The plaintiff’s delays included the following:
A.     the plaintiff was late to mobilise their own plant and equipment and did not mobilise until the end of October 2011;
B.     the plaintiff was delayed from breaches to its own method statement and because it did not have a full chain of equipment on site;
C.     the plaintiff incurred delays due to it getting a 50 tonne dump truck bogged on or about 8 March 2012 in which the entire site had to be subsequently shut down for at least 4 days; and
D.     the plaintiff’s equipment on site repeatedly broke down, causing delays.
(ii) Detailed particulars to be provided upon disclosure and the completion of interlocutory steps, including expert evidence.
AE argued that particular A was “a rather curious pleading” because the contract had not been signed until after that date – although it acknowledged that the parties were treating the contract as if it were on foot before that date. AE argued that A was “a red herring” because the plaintiff had not claimed for plant which was not then on site.
With respect to particular B, AE argued that it did not know what a “chain of equipment” was nor were its alleged breaches of its own method statement, or their effect, identified.
AE considered particular C to be adequate.
With respect to particular D, AE sought particulars of the delay caused when its own equipment was said to have broken down, including particulars of the date or dates of its breaking down. It referred me to paragraph [169] of CMC v WICET which referred to Mr Vance’s evidence that breakdowns contributed very little to the delay. Paragraph [169] states (footnotes omitted) –
Mr Vance, however, did not accept the blame for the loss of productivity up to 13 January 2012 could be laid at the feet of Alexanderson. Mr Vance identified the delay from truck breakdowns as being for a defined period in January 2012. To similar effect was Mr Barry’s evidence that truck breakdowns contributed “very little” to the length of time the Reclamation C Bunds took to construct.
James Barry was CMC’s project superintendent.[36]
[36] CMC v WICET [60].
Counsel for AE explained that there was evidence before Flanagan J that there was no delay caused by AE’s equipment breaking down. AE also argued that particular (ii) ought to be struck out because whether equipment broke down or not was not a question of expert evidence; disclosure had occurred and AE had no idea what interlocutory steps CMC was waiting for.
CMC acknowledged that paragraph 57(b) was “inelegantly put” – but it was responded to a “defective” allegation in the 2FASOC.
While CMC’s response to the re-pleaded paragraph 40 will depend on the way it is re-pleaded, CMC may wish to take into account AE’s complaints about (i) B and D, and (ii) in its response.
Paragraph 60
AE complained similarly about paragraph 60.
Paragraph 60 responded to paragraph 42 of the ASOC. CMC submitted that paragraph 42 had been materially amended, as had Schedule B (mobilisation dates) and the quantum claimed.
AE submitted that the amendment to paragraph 42 had been by way of cross-referencing the parts of the pleading which provided the entitlement to contractual standby – cross-referencing which it was not required to do.
Also, AE submitted, its complaint had not been superseded by the amendments. Its complaints were that CMC had not provided adequate particulars of the plaintiff’s own delays nor identified the part of the Contract which supports the construction of it pressed in paragraphs 60(a)(ii) and 60(b).
Paragraph 42 of the 2FASOC states –
Pursuant to the matters pleaded and particularised in paragraphs 8, 9, 10(e), 10(g), 10(h), 10(i), 10(m), 10(n), 11 and 26, 27(a)(ii), 27(b), 28 to 40, and 41(a) hereof, the defendant was obliged to pay the plaintiff the amount of $1,189,164 for standby and the defendant has not made payment for standby at the Standby Rates.
Particulars
(a) The particulars of the amounts are set out in Schedule B hereto.
Paragraph 60 of the FADCC states –
As to paragraph 42 of the Amended Statement of Claim, the defendant:
(a) denies the allegation that the defendant is required to pay the plaintiff the Standby Rates in the amount of $1,242, 345 because:
(i) the plaintiff was responsible for its own delays; and
(ii)the plaintiff is only entitled to Standby Rates if the defendant issued the plaintiff with an instruction to stand down, and no such instruction was issued by the defendant; and
(b)says, in any event that the Contract provides that the plaintiff is not entitled to costs for the delays.
In my view, the amendments to paragraph 42 do not supersede the complaints.
However, rather than striking out paragraph 60(a)(i), CMC is required to provide further and better particulars of AE’s “own delays” to ensure that AE understands the case it has to meet.
As to the complaint that CMC has not identified the parts of the contract which support the contentions made in paragraphs 60(a)(ii) and 60(b) – I do not consider it necessary for CMC to do so. The relevant parts of the contract have been identified in earlier paragraphs of the defence, which must be read as a whole.
Paragraph 61
Paragraph 61 of the FADCC responds to paragraph 43 of the ASOC, which CMC submitted, had been materially amended.
AE submitted that the paragraph had not been materially amended in a relevant way.
Paragraph 43 of the 2FASOC states –
Pursuant to the matters pleaded and particularised in paragraphs 8, 9, 10(e), 10(g), 10(l), 10(m), 10(n), 11 and 26, 27(a)(i), 27(c), 28 to 40, and 41(b) hereof, the plaintiff incurred additional costs in the estimated amount of $29,841 as a consequence of the Defendant’s Delays by reason of overtime and penalty rates for personnel.
[Particulars followed.]
The FASOC amended the paragraphs “pursuant to” which the allegation in paragraph 43 was made.
The 2FASOC amended the FASOC by including particulars about penalty rates for public holidays.
Paragraph 61 of the FADCC states –
As to paragraph 43 of the Amended Statement of Claim, the defendant:
(a) denies the allegation that there were “Defendant’s Delays” because the plaintiff was provided sufficient access to the site;
Particulars
(i)The defendant repeats and relies upon the particulars set out in paragraph 48 above.
(ii)The defendant cannot presently further particularise this allegation but intends to provide further particulars upon the completion of interlocutory steps (including disclosure).
(b) says that the defendant never instructed the plaintiff that its personnel were required to work overtime nor otherwise required the performance of overtime; and
(c) insofar as the plaintiff’s personnel did work overtime, says:
(i)this was due to delays for which the plaintiff was responsible; and
(ii)there is, in any event, no entitlement under the Contract for the plaintiff to claim such costs.
AE complained about the particulars of 61(a) and (c) and, specifically, the lack of particulars of “sufficient access” and “delays for which the plaintiff was responsible”.
I do not consider the amendments to paragraph 43 to warrant the deferral of AE’s complaint about paragraph 61. I consider the particulars of “sufficient access” and “delays for which the plaintiff was responsible” to be a necessary part of the pleading, to be provided within a reasonable period of time.
Paragraph 62(a)
Paragraph 62 of the FADCC responds to paragraph 44 of the ASOC. I have ordered the striking out of paragraph 44 of the 2FASOC, with leave to re-plead. Therefore AE’s complaint about paragraph 62 has been superseded.
Paragraph 70
Paragraph 70 of the FADCC responds to paragraph 53 of the ASOC.
Paragraph 53 of the 2FASOC asserted that the plaintiff’s performance of the Work was disrupted by inclement weather and its particulars included a reference to Schedule C1 which was entitled “Wet Weather Utilisation”.
Paragraph 70 of the FADCC is to the effect that CMC could not admit the allegations in paragraph 53 of the ASOC because, despite reasonable inquiries, it remained uncertain about it.
AE’s complaint is that the explanation for the nonadmission is inadequate: CMC ought to have known about the wet weather events because it had pleaded wet weather delays in its pleadings in the CMC v WICET litigation.
CMC’s response was to the effect that, while CMC might have at one stage pleaded certain wet weather delays in the CMC v WICET proceedings, those allegations were withdrawn. In those circumstances the inference to be drawn was that CMC did not think that its allegations as to wet weather delays could be supported. Also, CMC said it was intent on making further inquiries and intended to amend in due course.
I have ordered that the particulars of paragraph 53 be amended but I do not consider AE’s complaint about paragraph 62(c) to have been superseded.
I consider the appropriate way to deal with the complaint is to allow CMC to amend its pleading.
Paragraph 89(b)
Paragraph 89 respond to paragraph 77 of the Amended Statement of Claim.
Paragraph 77 of the 2FASOC states –
The extent of vertical settlement which occurred under the Reclamation Bunds C Area resulted in the total cubic meterage of Fill being around 10 to 12% in excess of the volume calculated by measuring between the preconstruction surface and the post construction surface.
Particulars
(a) The plaintiff cannot provide full particulars of this calculation until the defendant has provided disclosure of the relevant settlement data, and geotechnical records and survey records.
(b) The plaintiff cannot provide further particulars until the provision and completion of expert evidence.
Paragraph 89 of the FADCC states –
As to paragraph 77 of the Amended Statement of Claim, the defendant:
(a) denies the allegations contained therein because the extent of vertical settlement alleged by the plaintiff is incorrect; and
(b) says that the extent of the vertical settlement has been significantly exaggerated by the plaintiff compared to the amount of settlement that actually occurred.
Particulars
Detailed particulars to be provided upon disclosure and expert evidence. The defendant cannot presently particularise this allegation.
AE complained that CMC did not state what settlement it claimed had occurred.
It submitted that it was an abuse for the defendant to maintain an “ambiguous allegation of fact” (that the extent of vertical settlement had been significantly exaggerated) having regard to the way in which it pleaded in CMC v WICET as reflected in paragraphs [991] – [997] of the judgment.
AE said, at [9] of its written submissions –
To make it clear for the court:
(a) In CMC v WICET the issue is that the change in volume placed was 11% - not that the vertical settlement was 11%.
(b) The difference conceptually is that the Bund is trapezoid in shape, and the addition volume caused by settlement is magnified against the vertical percentage by reason that the trapezoid is larger at its base.
CMC said that these “new submissions” in [9] demonstrated that the allegation made by the plaintiff in the present proceeding was materially different from CMC’s claim in CMC v WICET. I do not agree that the submissions at [9] have that effect.
The issue here is whether 10 – 12% more fill was required because of the extent of vertical settlement. The issue in CMC v WICET was the appropriate quantity calculation for fill and whether it ought to have included an allowance of 10% of fill volume for settlement of the bunds. They cover the same ground.
CMC pointed out that –
·AE said that it would provide particulars of the extent of vertical settlement, upon receipt of expert evidence; and
·CMC said it was going to provide particulars upon the provision of disclosure and expert evidence.
CMC submitted that plainly both parties needed expert evidence to identify the extent of settlement and the matter ought not to be taken further at this stage.
I accept that expert evidence is required before the matter may be taken further.
Paragraphs 102 and 103
Paragraph 102 of the FADCC responded to paragraph 91 of the Amended Statement of Claim.
Paragraph 103 of the FADCC responds to paragraph 92 of the Amended Statement of Claim.
Paragraph 91 of the 2FASOC states –
The Contract relevantly provided that the Reclamation Bund were to be constructed from a combination of clay and general fill [General Fill].
[Particulars follow.]
Paragraph 92 of the 2FASOC states –
The Contract relevantly provided that the OLC formation was to be constructed from a general fill [General Fill].
Paragraphs 102 and 103 of the FADCC state –
The defendant does not admit the allegations contained in paragraph 91 (or, in paragraph 103, 92) of the Amended Statement of Claim. The defendant has made reasonable enquiries and remains uncertain as to the truth or falsity of the allegations
AE’s complaint is that the explanation for the nonadmission in each case is inadequate.
CMC argued that there was no evidence that CMC had failed in its obligation to make inquiries going forward. CMC submitted that AE’s complaint was an example of the plaintiff’s demanding an admission or a denial, but pleading the nonadmission was appropriate. Consequences followed if the matter was not dealt with in due course. CMC was mindful of its continuing obligations and intended to address these issues.
AE submitted that CMC had to know what it contracted to build the bunds from. Nine months had passed since its first defence – it was not good enough for CMC to say that it would get to it “eventually”.
The appropriate way to deal with AE’s complaint is to set a time for CMC’s response to these paragraphs.
Paragraphs 113 and 114
AE’s complaint about these paragraphs is that CMC has not identified the part of the Contract which supported its assertions that –
(as per 113): there is no entitlement [to the reasonable rate for the rocky fill] on a proper construction of the contract; and
(as per 114): there is no entitlement [to the reasonable direct additional plant and equipment construction consumables and maintenance costs for the rocky fill]
These paragraphs respond to paragraphs 101(a) and 101(b) of the 2FASOC. I have ordered AE to comply with rule 115(2)(c) in its pleading of paragraph 101. Accordingly, I consider its complaint about paragraphs 113 and 114 of the FADCC to be premature.
Paragraphs 116(a) and (b); 117(b), 117(c) 118 and 119
Paragraph 116 of the FADCC responds to paragraph 103 of the Amended Statement of Claim.
Paragraph 103 of the 2FASOC states –
The defendant has paid, or the plaintiff has otherwise claimed herein, for the placement and compaction of the Rocky Fill as General Fill.
Paragraph 116 of the FADCC states –
As to paragraph 103 of the Amended Statement of Claim:
(a) the defendant does not admit the allegation. The allegation relates to events which occurred over six years ago, and the defendant has made reasonable enquiries and is uncertain as to the truth or falsity of the allegations contained therein; and
(b) in any event, the plaintiff is only entitled to receive payment for the placement and compaction of rocky fill as general fill.
As to paragraph 116(a), AE’s complaint is that the explanation for the nonadmission is inadequate.
As to paragraph 116(b), AE’s complaint is that the CMC has not identified the part of the contract which supports the construction for which it contends.
The assertion in paragraph 103 does not appear to me to be complex. However, I am not prepared to strike out paragraph 116(a) at this stage.
As to the complaint about 116(b), CMC should identify the relevant part of the contract upon which it relies.
The defence is to be read as a whole. Once the parts of the contract upon which CMC relies for its assertion in paragraph 116(b) have been identified for the purposes of that paragraph, there is no need to repeat them for the purposes of paragraphs 117(b), 118 or 119 which make a similar assertion.
Paragraph 117(c) of the FADCC states that a reasonable and competent contractor would have anticipated the placement and compaction of rocky fill when cutting into a hill. The particulars of that paragraph state –
Clause 2.1 of the Contract provided that the Plaintiff was not entitled to any additional costs for different site, surface and sub-surface conditions.
AE’s complaint is that the particulars are irrelevant to the defence pleaded. On their face, they appear to be irrelevant, unless the defendant is intending to suggest that having regard to that clause of the contract, rocky fill would have been anticipated. They might also be intended as the particulars of paragraph 117(b).
In any event, as they presently stand, the particulars do not fill in the picture of the allegation in 117(c). I strike out the particulars of paragraph 117(c), with leave to

re-plead.
That is the last of the paragraphs listed in Schedule B to the plaintiff’s written submissions.
Complaints by AE about CMC’s failure to particularise (paragraph 2 and 3)
The inadequacy of CMC’s particulars, or its failure to particularise, is the subject of paragraphs 2 and 3 of AE’s application, in which it seeks either the striking out of the listed paragraphs because of inadequacies in the particulars or the defendant’s failure to particularise, or in the alternative, an order that the defendant provide the particulars requested.
The parties’ position as to the particulars of the nominated paragraphs was contained in, in each case, Schedule A to their written submissions.
Generally, AE argued that where CMC responded that it would provide “evidence” after the completion of “interlocutory steps” and it had not – then the paragraphs concerning that evidence of its Further Amended Defence should be struck out. There had been no adequate excuse for its failure to provide those particulars. Bland statements that the particulars would be provided by way of expert reports were unsatisfactory. The statement “unable to provide particulars pending completion of interlocutory steps” was, AE submitted, a device to avoid having to answer questions.
I note that in almost every case, CMC has indicated that it will provide the required particulars. Having regard to QNI Resources, and the need to ensure the just resolution of the real issues, I consider it appropriate to permit CMC a reasonable time to do so.
Paragraph 11(b)
Paragraph 11(b) of the FADCC states –
As to paragraph 10(m) of the Amended Statement of Claim, the defendant:
(a) …
(b) says in any event that the plaintiff was required to comply with the Construction Programme set out in the Contract.
AE complained that the contract pleaded at paragraph 9 of the Amended Statement of Claim did not identify a “Construction Programme” nor did CMC identify a clause in the Contract which requires the plaintiff to comply with the Construction Programme.
That complaint is difficult to understand because paragraph 10(m) of the 2ASOC refers to, and in effect defines in its particulars, “the Construction Programme”. It states –
The express terms of the Contract provided, inter alia, that:
…
(m) Pursuant to a direction given by Vance in or around October 2011, the plaintiff was to complete the Work in accordance with the Construction Programme (infra).
As I understand the pleading, the particulars which follow suggest that the Construction Programme is to be identified by way of reference to clauses in the written contract, oral directions, a Contract Revision, letters 2 and 3 and certain discussions.

However, as I understand the written submissions, each party has identified the construction programme differently – the defendant by reference to clause 8.1 of the Contract and the plaintiff by reference to a programme dated 16 September 2011.
Regardless, CMC has indicated that it will provide further particulars of this paragraph upon completion of disclosure. I will make an order that it do so.

Paragraphs 37(b), 39, 40(a), 48, 49(b), 50(b), 51(a), 52(a), 54(a), 57(a), 58(a), 59(a), 61(a) and 62(a)

AE submitted that a factual defence is raised in paragraphs 37(b), 39, 40(a), 48, 49(b), 50(b), 51(a), 52(a), 54(a), 57(a), 59(a), 61(a) and 62(a) of the FADCC by way of CMC asserting that it provided AE with “sufficient access”.
AE complained about the absence of particulars of that allegation.
In respect of each of those paragraphs, as above, I agree that CMC ought to provide particulars of the sufficient access which it says it did provide.
Paragraphs 57(b)
This paragraph denies the allegation that the plaintiff would have completed the work by 20 March 2012 even if it had been delayed by the defendant, due to the plaintiff’s own delays.
AE requests particulars of its “own” delays.
CMC has indicated that it will provide further particulars of the plaintiff’s own delays (and not only after expert evidence has been obtained). It has indicated that it will provide further particulars of late mobilisation by the plaintiff, break down, truck bogging et cetera. As above, I consider it appropriate to allow CMC a reasonable time to provide those particulars which are not dependent on expert evidence.
Paragraph 59(d)
Paragraph 59(d) asserts that “working public holidays is a common practice in relation to fly in and fly out work”.
This paragraph responded to the assertion in the 2FASOC that as a consequence of the Defendant’s Delays, the plaintiff was required to work on public holidays.
AE requested that CMC –
(a) identify the basis of the allegation “working public holidays is common practice” by reference to how “common practice is alleged”; and
(b) “identify the basis upon which it is said that “common practice” is relevant to the defence pleaded.
Its complaint is that CMC has not answered (b) of its request.
The response given by CMC in correspondence referred to the fact that the contract made no allowance for public holidays and stated that it was not unusual for work to be done on public holidays because crews were already on site. CMC says that that response answers the request.
Paragraph 59(d) must be considered in the context of the whole of the paragraph. When read with 59(e) in particular, it denies that the defendant required or instructed the plaintiff to work public holidays; and says in any event working on public holidays was common practice.
Reading those two paragraphs together, the relevance of “common practice” is, in my view, obvious and no further particularisation of it is required.
Paragraphs 60(a)(i), 61(c)(i)
These paragraphs contain an assertion by the defendant about the plaintiff’s “own delays” or “delays for which the plaintiff was responsible”. CMC submits that the best particulars it was able to give of the “plaintiff’s own delays” are those stated in paragraph 48 of the FAD. It was not apparent to me that these paragraphs referred back to the delays referred to in paragraph 48. Nevertheless, CMC has indicated that it will provide further detailed particulars of the “plaintiff’s own delays. I will order that it do so.
Paragraphs 76(b), 79(c), 81(c), 82(b)
These paragraphs refer to the defendant carrying out surveys.
In its request for particulars, AE sought details about the persons who conducted the surveys and of the surveys themselves.
Certain particulars were provided including the names of the surveyors. AE complains that the names alone do not allow it to identify “with precision” whether the persons are licenced.
AE now –
·complains that the names of the surveyors are not enough to allow it to identify whether they are licenced;
·challenges CMC’s resistance to providing some of the particulars required on the basis that they request evidence – given that CMC has indicated that it will provide particulars; and
·complains that a company cannot be a licenced surveyor (and therefore there was no response to its request for the name of independent surveyor).
I agree with CMC that there is no issue raised in the pleadings about the surveys not having been conducted by licenced surveyors. I consider the response to the particulars to be sufficient.
I agree with CMC that AE’s requests at paragraphs 18(c) and (e) – (j) are requests for evidence – indeed matters likely to be the subject of expert evidence.
I note that CMC has provided the best particulars is it able to and agree with it that a request for the name and address of an individual surveyor is a request for evidence.
I consider that CMC has adequately responded to AE’s request for particulars.

Paragraph 92(c)

Paragraph 92 of the FADCC responded to paragraph 80 of the 2FASOC.
In paragraph 80, the plaintiff asserted that it was entitled to $123,367.50 under the contract because it had been required to place more fill in the Reclamation Bunds C area than the contract provided for because the fill was placed on highly compressible material and settled vertically. The plaintiff said it could not calculate the extra fill required because of settlement until the defendant had disclosed certain data and survey records.
In paragraph 92 of the FADCC, the defendant denied that the plaintiff was owed $123,367.50; asserted that payment for the work was to be based on the surveyed volumes in accordance with a certain specification; and said –
(c) … the defendant has carried out such surveys as required by the terms of the Contract and has already paid the plaintiff for the work performed based upon the quantities determined in the surveys.
In particulars at paragraph 92(c)(iii), the defendant said that it had provided the survey information to the plaintiff on a disc on or around August 2012.
It seems that AE’s initial complaint was that the CD had not in fact been provided and there was therefore no support in the particulars for the allegation made in paragraph 92(c) (relying on Project Leaders Australia Pty Ltd v Mt Isa Association Friendly Society Limited [2003] QSC 032).
At the hearing, Mr Codd said that “a” CD had been located which “seemed to fit the description” but the question whether it supplied the required particulars could only be determined upon expert evidence. For that reason, it wished to adjourn that part of the application which concerned the particulars of the surveys.
CMC argued that this part of the application ought to be dismissed, rather than adjourned. It argued that any argument about the adequacy of the data was something different from the application to strike out of the paragraph of the FADCC because of the particulars did not support the allegations in the counterclaim because the CD had not been provided.
I consider it more efficient to dismiss, rather than to adjourn, this part of AE’s application to strike out paragraph 92(c) of the FADCC. AE is not in a position to say anything about the adequacy of the particulars contained on the CD. If there are issues about the adequacy of the survey data provided, they may be raised in the course of case management.
I dismiss AE’s application in so far as it concerns paragraph 92(c) of the FADCC.
Paragraph 93(c), 94(c), 98(c) and 100(c)
These paragraphs refer to the defendant carrying out such surveys as required by the terms of the contract, and indicating that particulars will be provided upon disclosure or referring to the disc of survey data.
AE sought detailed particulars about the surveyors and the surveys themselves.
It complains that CMC’s response to its request (at 20(c) of the response) was “nonsensical”. That paragraph said –
In respect of paragraphs 93(c), 94(c), 98(c) and 100(c) of the Defence, the Defendant repeats and relies upon the particulars pleaded directly above at paragraph 20(b) … In doing so, the Defendant states that paragraph 20(e) of the request is not a valid request for particulars as the GPN Excavation does not relate to the matters pleaded at paragraphs 93(c), 94(c), 98(c) and 100(c).
CMC explained that AE made a composite request for particulars concerning surveys in relation to the GPN Borrow Pit and Bunds quantities claims – rather than two separate requests. The response in 20(c) is therefore identical.
I do not consider that to be a nonsensical response.
Paragraph 85(a)
This paragraph refers to surveys conducted in accordance with the contract and the provision of the CD containing the surveys to AE.
AE sought details of the survey and – at that stage not appreciating that the CD had in fact been provided – details of the circumstances in which the CD was provided to it.
The CD issue has been sorted. Otherwise, I consider the particulars provided to be adequate.
Paragraph 87(b)
This paragraph asserts that the amount of fill used by the plaintiff was as set out in the surveys undertaken by the defendant and provided to the plaintiff. CMC asserts that it will provide detailed particular upon disclosure and pending completion of interlocutory steps.
AE complains that CMC has failed to provide the particulars it requested without excuse and that the response was not proper.
AE sought details of the survey and – at that stage not appreciating that the CD had in fact been provided – details of the circumstances in which the CD was provided to it.
The CD issue has been sorted.
In terms of further disclosure, I accept that expert evidence is required before that can occur having regard to the nature of the information.
Paragraph 88, 89, 107(b)
Paragraph 88 states –
As to paragraph 76 of the Amended Statement of Claim, the defendant denies the allegation because it is not true because the entirety of the fill was not placed over marine sediments.
Particulars
(i) As shown on drawing 1530-DR-0003 Rev 2, in some areas it was placed over:
A.gravel and clay; and
B.areas with trees on them;
(ii) both of which were not marine in any way.
Paragraph 89
Paragraph 89 states –
As to paragraph 77 of the Amended Statement of Claim, the defendant:
(a) denies the allegations contained therein because the extent of vertical settlement alleged by the plaintiff is incorrect; and
(b) says that the extent of the vertical settlement has been significantly exaggerated by the plaintiff compared to the amount of settlement that actually occurred.
Particulars
Detailed particulars to be provided upon disclosure and expert evidence.
The defendant cannot presently further particularise this allegation.

Paragraph 107(b)

Paragraph 107(b) states –
As to paragraph 96 of the Amended Statement of Claim, the defendant:
(a) denies the allegation that it issued oral directions to the plaintiff in relation to the rocky fill as the defendant did not issue any such directions;
(b) otherwise does not admit the allegations. As the allegations relate to alleged events that occurred over 6 years ago, the defendant had made reasonable enquiries and is uncertain as to the truth or falsity of the allegations and is unable to admit them because they concern matters within the knowledge of the plaintiff and interlocutory steps have not yet been completed.
AE’s complaint is that CMC has failed to provide particulars in response to its requests in respect of each of these paragraphs, without reasonable excuse, and that its response is not proper.
CMC provided some of the particulars of paragraph 88 requested of but resisted others on the basis that they were requests for evidence. I consider that CMC has appropriately differentiated between requests for (expert) evidence and requests for particulars in relation to this paragraph. For example, AE’s request that CMC –
Identify whether the aforesaid allegation is limited to the full extent of the vertical profile of soil types below the surface or whether it is made just in reference to the surface soil types
is not a request for particulars – but a request for evidence, indeed expert evidence. Also, the defendant’s particularity (as in its reference to gravel and trees) complements the plaintiff’s identification of marine sediment as clays and muds.
I have dealt with paragraph 89 earlier in these reasons. I accept that expert evidence and calculation is required to allow CMC to provide the requested particulars.
As to paragraph 107(b), CMC notes that the request for particulars relates to a previous denial which was amended to a nonadmission. Rule 166 applies. I will order the defendant to amend its traversal within a reasonable period of time.
Paragraphs 16 of the counterclaim
Paragraph 16 states –
The Defendant has previously paid to the Plaintiff on account the sum of $614,411 (previously paid on account to the Plaintiff) in relation to variation 1 and 46.
AE asked for the date upon which the money was paid for “variation 146”.
CMC took advantage of an obvious error.
However, I note CMC’s position that the plaintiff admitted in its answer that the defendant paid for items 1 and 46 and I accept that the request is redundant.
Paragraph 25 of the counterclaim
Paragraph 25 states –
The Plaintiff, engaging in trade or commerce, provided the Defendant with various payment claims throughout the course of the Subcontract Works, including the Payment Claim; and in doing so represented that:
(a) it was entitled to the amounts which where (sic) the subject of payment claims in accordance with the Contract for alleged variations and dayworks; and
(b) in relation to the Plaintiff’s alleged Access Delays claim, the Plaintiff represented to the Defendant that it would provide a detailed claim, demonstrating such entitlement and fully substantiating the amount claimed would be provided to the Defendant (sic).
[Particulars follow.]
AE sought particulars about the person said to have made the representation and to whom they were made, when, how et cetera.
CMC has provided particulars identifying that the representation was allegedly made by Mr Alexanderson in November 2011. It has indicated that it intends to provide further particulars upon completion of disclosure. I will order that it do so.
AE’s complaint about the lack of particulars of “instructions” is no longer relevant.
Objections to evidence
CMC objected to Mr Malcolm’s evidence which was given by way of four affidavits. CMC’s objections and the plaintiff’s response to those objections were provided by way of written submissions.
I embarked on a consideration of the objections however I found it a time-consuming exercise with little application to the way in which I approached the issues for determination. Accordingly, I note that the affidavits were received subject to CMC’s objections about which there has been no ruling.
Orders
I make the following orders:
In the defendant’s application filed 12 March 2019
As to paragraph 1:
(i)I strike out, with leave to re-plead by 17 December 2019, the following paragraphs of the Second Further Amended Statement of Claim (2FASOC):
•       36 – 38;
         •       40; and
         •       44.
(ii)I direct the defendant to plead to the re-pleaded paragraphs of the 2FASOC by 10 February 2020.
As to paragraph 2:
(i)Having struck out the paragraphs of the 2FASOC listed above, the following schedules fall:
•       Schedule A, B of the 2FASOC; and
         •       Schedule A1, A2, G, H, of the Plaintiff’s Further and Better Particulars.
(ii)     The plaintiff has leave to re-plead the schedules by 17 December 2019.
As to paragraph 3:
I order that:
(i)By 17 December 2019, the plaintiff is to amend the first seven particulars of paragraphs 41(a) and 53 of the 2FASOC to include details about the part of the site relevantly affected by sufficient rain.
(ii)By 17 December 2019, the plaintiff is to provide further particulars of the directions referred to in paragraphs 41(a)(viii) and (ix).
(iii) By 17 December 2019, the plaintiff is to provide further particulars of the directions referred to in paragraph 96.
(iv)By 17 December 2019, the plaintiff is to comply with Rule 155(2)(c) in its pleading of paragraphs 101 and 104.
In the defendant’s application filed 16 November 2018:
I order that Brown J’s order 3, made on 26 September 2018, be varied so as to read:
“The defendant is to respond to the particulars requested by the plaintiff:
(a)    in its request for particulars of the defence and counterclaim dated 29 June 2018; and
(b)    in the reply and answer,
by 15 October 2018.”
In the plaintiff’s application filed 16 November 2018:
As to paragraph 1:
(i)I strike out the particulars of paragraph 117(c) FADCC, with leave to re-plead by 10 February 2020.
I order that:
(ii)The defendant is to amend its traversals in the following paragraphs of the Further Amended Defence and Counterclaim (FADCC) by 10 February 2020:
•       49(a);
         •       50;
         •       51(b);
         •       70;
         •       102;
         •       103;
         •       107(b); and
         •       116(a).

The defendant is to respond to the following paragraphs of the Second Further Amended Statement of Claim (2FASOC) (which paragraphs have been amended since the plaintiff’s application was filed) by 10 February 2020):
•        31;
•        32;
•        35; and
•        43.
The defendant is to provide particulars of paragraph 116(b) FADCC by 10 February 2020.
The defendant is to provide particulars of the following assertions in the FADCC by 10 February 2020:
•       in every paragraph in which the defendant has asserted that it did provide the plaintiff with “sufficient access” – particulars of when and where it gave the plaintiff “sufficient access” and how and when the fact of access was communicated to the plaintiff; and
•       in every paragraph in which the defendant has referred to “the plaintiff’s own delays” or “delays for which the plaintiff was responsible” or similar – particulars of the nature of the plaintiff’s delays.
As to paragraphs 2 and 3:
I order that:
(i)The defendant is to provide particulars of the following paragraphs of the FADCC by 10 February 2020:
•       11(b) – “the construction Program set out in the Contract”;
•       37(b), 39, 40(a), 48, 49(b), 50(b), 51(a), 54(a), 57(a), 59(a), 61(a) and 62(a) – particulars of when and where it gave the plaintiff “sufficient access” and how and when the fact of access was communicated to the plaintiff;
•       57(b), 60(a)(i), 61(c)(i), - particulars of the nature of “the plaintiff’s own delays” or “delays for which the plaintiff was responsible” or similar.
•       25 (of the counterclaim) – further particulars of the representation made by Mr Alexanderson in November 2011.
As to paragraphs 4 and 5:
(i)I order that, in relation to item 16(dd) in the final version of the Schedule of Non-Disclosed Documents (emailed to my associate on 1 May 2019), if the notification was in the form of a document, and that document is in the defendant’s possession and control, it is to be disclosed to the plaintiff by 17 December 2019.
(ii)As to items 16(kk) and 16(ll) in the final version of the Schedule of Non-Disclosed Documents (emailed to my associate on 1 May 2019) – the question of their disclosure is to be deferred until the next review of the matter.
Otherwise, the applications are dismissed.
And further:
Within 14 days, the parties are to provide a copy of these orders to the Supervised Case List Judge and arrange for the next review of this matter.

I will hear the parties as to costs.

CITATION:	Alexanderson Earthmover Pty Ltd v Civil Mining & Construction [2019] QSC 259
PARTIES:	ALEXANDERSON EARTHMOVER PTY LTD (plaintiff) v CIVIL MINING & CONSTRUCTION PTY LIMITED (defendant)
FILE NO:	13314 of 2017
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland at Brisbane
DELIVERED ON:	22 October 2019
DELIVERED AT:	Brisbane
HEARING DATES:	4 April 2019, 5 April 2019, 17 April 2019 written submissions received 12 April 2019, 1 May 2019, 8 May 2019
JUDGE:	Ryan J
ORDERS:	In the defendant’s application filed 12 March 2019: As to paragraph 1: (i) I strike out, with leave to re-plead by 17 December 2019, the following paragraphs of the Second Further Amended Statement of Claim (2FASOC): · 36 – 38; · 40; and · 44. (ii) I direct the defendant to plead to the re-pleaded paragraphs of the 2FASOC by 10 February 2020. As to paragraph 2: (i) Having struck out the paragraphs of the 2FASOC listed above, the following schedules fall: · Schedule A, B of the 2FASOC; and · Schedule A1, A2, G, H, of the Plaintiff’s Further and Better Particulars. (ii) I grant the plaintiff leave to re-plead the schedules by 17 December 2019. As to paragraph 3: I order that: (i) By 17 December 2019, the plaintiff is to amend the first seven particulars of paragraphs 41(a) and 53 of the 2FASOC to include details about the part of the site relevantly affected by sufficient rain. (ii) By 17 December 2019, the plaintiff is to provide further particulars of the directions referred to in paragraphs 41(a)(viii) and (ix). (iii) By 17 December 2019, the plaintiff is to provide further particulars of the directions referred to in paragraph 96. (iv) By 17 December 2019, the plaintiff is to comply with Rule 155(2)(c) in its pleading of paragraphs 101 and 104. In the defendant’s application filed 16 November 2018: I order that Brown J’s order 3, made on 26 September 2018, be varied so as to read: “The defendant is to respond to the particulars requested by the plaintiff: (a) in its request for particulars of the defence and counterclaim dated 29 June 2018; and (b) in the reply and answer, by 15 October 2018.” In the plaintiff’s application filed 16 November 2018: As to paragraph 1: (i) I strike out the particulars of paragraph 117(c) FADCC, with leave to re-plead by 10 February 2020. I order that: (ii) The defendant is to amend its traversals in the following paragraphs of the Further Amended Defence and Counterclaim (FADCC) by 10 February 2020: · 49(a); · 50; · 51(b); · 70; · 102; · 103; · 107(b); and · 116(a). (iii) The defendant is to respond to the following paragraphs of the Second Further Amended Statement of Claim (2FASOC) (which paragraphs have been amended since the plaintiff’s application was filed) by 10 February 2020): · 31; · 32; · 35; and · 43. (iv) The defendant is to provide particulars of paragraph 116(b) FADCC by 10 February 2020. (v) The defendant is to provide particulars of the following assertions in the FADCC by 10 February 2020: · in every paragraph in which the defendant has asserted that it did provide the plaintiff with “sufficient access” – particulars of when and where it gave the plaintiff “sufficient access” and how and when the fact of access was communicated to the plaintiff; and · in every paragraph in which the defendant has referred to “the plaintiff’s own delays” or “delays for which the plaintiff was responsible” or similar – particulars of the nature of the plaintiff’s delays. As to paragraphs 2 and 3: I order that: (i) The defendant is to provide particulars of the following paragraphs of the FADCC by 10 February 2020: · 11(b) – “the Construction Program set out in the Contract”; · 37(b), 39, 40 (a), 48, 49(b), 50(b), 51(a), 54(a), 57(a), 59(a), 61(a) and 62(a) – particulars of when and where it gave the plaintiff “sufficient access” and how and when the fact of access was communicated to the plaintiff; · 57(b), 60(a)(i), 61(c)(i), – particulars of the nature of “the plaintiff’s own delays” or “delays for which the plaintiff was responsible” or similar. · 25 (of the counterclaim) – further particulars of the representation made by Mr Alexanderson in November 2011. As to paragraphs 4 and 5: (i) I order that, in relation to item 16(dd) in the final version of the Schedule of Non-Disclosed Documents (emailed to my associate on 1 May 2019), if the notification was in the form of a document, and that document is in the defendant’s possession and control, it is to be disclosed to the plaintiff by 17 December 2019. (ii) As to items 16(kk) and 16(ll) in the final version of the Schedule of Non-Disclosed Documents (emailed to my associate on 1 May 2019) – the question of their disclosure is to be deferred until the next review of this matter. Otherwise, the applications are dismissed. And further: Within 14 days, the parties are to provide a copy of these orders to the Supervised Case List Judge and arrange for the next review of this matter. I will hear the parties as to costs.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – GENERALLY – whether statement of claim includes global causation – whether particulars inadequate – whether particulars ambiguous, irrelevant or confusing – whether particulars support allegation made PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – OTHER MATTERS – Disclosure – expert reports from other proceedings – whether party may withhold from disclosure part of a document said to be irrelevant Recording of Evidence Act 1962 (Qld) Uniform Civil Procedure Rules 1999 (Qld) Aimtek Pty Ltd v Flightship Ground Effect Pte Ltd [2014] QCA 294 Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd (No 2) [2009] WASC 69 Arnold Electrical & Data Installations P/L v Logan Area Group Apprenticeship/Traineeship Scheme Ltd [2008] QCA 100 Atlantic 3-Financial (Aust) Pty Ltd & Anor v Marler & Anor [2003] QSC 197 Barclay Mowlem Construction Limited v Dampier Port Authority (2006) 33 WAR 82 Beavan v Wagner [2017] QCA 246 Bloeman v Atkinson [1977] Qd R 291 Bromley Investments Pty Ltd v Elkington [2002] QSC 427 Bruce v Odhams Press Ltd [1936] 1 KB 697 BTU Group & Ors v Noble Promotions P/L & Ors [2002] QCA 505 Churton v Frewen (1865) 63 ER 669 Civil Mining & Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd [2017] QSC 85 Curlex Manufacturing Pty Ltd v Carlingford Australia General Insurance Limited [1987] 2 Qd R 335 DM Drainage & Constructions as trustee for DM Unit Trust t/a DM Civil v Karara Mining Limited [2014] WASC 170 Equititrust Limited v Tucker & Ors (No 2) [2019] QSC 248 Frith v Schubert & Anor [2010] QSC 444 Great Atlantic Insurance Company v Home Insurance Company [1981] 1 WLR 529 I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Limited (2002) 210 CLR 109 In Roma Pty Ltd v Adams & Anor [2012] QCA 347 John Holland Construction & Engineering Pty Ltd v Kvaerner RJ Brown Pty Ltd (1996) 13 BCL 292 John Holland Construction & Engineering Pty Ltd v Kvaerner RJ Brown Pty Ltd & Anor (1996) 8 VR 681 Lacaba Ahden Australia Pty Ltd v Bucyrus (Australia) Pty Ltd [2006] QSC 147 Laing Management (Scotland) Ltd v John Doyle Construction Ltd [2004] BLR 295 LBS Holdings P/L v The Body Corporate for Condor Community Title Scheme 13200 & Ors [2004] QSC 229 McGrath Corporation Pty Ltd v Global Construction Management (Qld) Pty Ltd & Anor [2011] QSC 178 Menkens v Wintour [2007] 2 Qd R 40 Meredith v Palmcam Pty Ltd [2001] 1 Qd R 645 Mitchell Contractors Pty Ltd v Townsville-Thuringowa Water Supply Joint Board [2004] QSC 329 Newmont Yandal Operations Pty Ltd v The J Aron Corporation and the Goldman Sachs Group Inc & Ors (2007) 70 NSWLR 411 Parbery & Ors v QNI Metals Pty Ltd & Ors [2018] QSC 276 Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 196 ALR 257 Project Leaders Australia Pty Ltd v Mt Isa Association Friendly Society Limited [2003] QSC 032 QNI Resources Pty Ltd v Sino Iron Pty Ltd [2016] QSC 62 Queensland Pork P/L v Lott [2003] QCA 271 Rapid Roofing P/L & Anor v Natalise P/L (as trustee for the St Ange Family Trust) & Anor [2008] QCA 237 Rose v Terry Hewat Commercial Diving Pty Ltd, SC (Qd), Demack J., no. 115 of 1995, 17 August 1999, unreported Santos Ltd v Fluor Australia Pty Ltd [2017] QSC 153 Telstra Corporation v Australis Media Holdings Ltd (NSWSC, unreported, 10 February 1997, McLelland CJ in Eq) Thiess Pty Ltd v FFE Minerals Australia Pty Ltd [2007] QSC 209 Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15 Watts v Rake (1960) 108 CLR 158 Williams & Humbert v W & H Trade Marks (Jersey) Ltd [1986] 1 AC 368
COUNSEL:	B E Codd, with C M Matthews for the Plaintiff L M Campbell for the Defendant
SOLICITORS:	Frigo Adamson Legal Group Proprietary Limited for the Plaintiff Clayton Utz for the Defendant