AVWest Aircraft Pty Ltd v Bombardier Inc [No 4]
[2021] WASC 241
•20 JULY 2021
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: AVWEST AIRCRAFT PTY LTD -v- BOMBARDIER INC [No 4] [2021] WASC 241
CORAM: ARCHER J
HEARD: 30 JUNE 2021
DELIVERED : 30 JUNE 2021
PUBLISHED : 20 JULY 2021
FILE NO/S: CIV 2450 of 2017
CIV 1636 of 2020
CIV 2213 of 2020
BETWEEN: AVWEST AIRCRAFT PTY LTD
Plaintiff
AND
BOMBARDIER INC
Defendant
Catchwords:
Extension of time - Turns on its own facts
Legislation:
Nil
Result:
Extension of time granted
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr K de Kerloy |
| Defendant | : | Dr K Stern SC & Mr A C Willinge |
Solicitors:
| Plaintiff | : | Herbert Smith Freehills |
| Defendant | : | Ashurst Australia |
Case(s) referred to in decision(s):
Nil
ARCHER J:
(This judgment was delivered extemporaneously and has been edited to correct matters of grammar and to include complete references.)
Overview
The defendant (Bombardier) seeks an extension of the deadline by which it is required to file and serve its witness outlines and the list of documents it intends to tender at trial. The plaintiff (AVWest) opposes the extension.
Background
On 4 March 2021, I dealt with, among other things, a dispute between the parties as to the appropriate deadlines for the filing of witness outlines and lists of documents. Bombardier sought an order that its deadline be 27 August 2021. AVWest submitted that Bombardier's deadline should be 14 July 2021.
At that stage, there was no evidence before me. In the absence of evidence, I was not satisfied that Bombardier would be unduly prejudiced by having to comply by the deadline proposed by AVWest. I expressly said, however, that did not mean that I could not be persuaded in the future that a later deadline was appropriate.[1] I said that if, having attempted to meet the deadline, Bombardier came to the view that the deadline could not sensibly be met, then I would expect Bombardier to bring, before the middle of June, an application for an extension of time with evidence on affidavit in support.[2]
[1] ts 378.
[2] ts 378.
In saying this, I intended to make it plain that any such application would not face the burden of demonstrating a change in circumstance justifying a different decision. Rather, Bombardier was required to do its best and, if it concluded that its best would not be enough, provide evidence to support that conclusion.
On 16 June 2021, Bombardier filed a minute seeking an extension of time. On 18 June 2021, Bombardier filed submissions and an affidavit from Catherine Pedler (Pedler Affidavit). Ms Pedler is a partner of Ashurst and has the conduct of this matter on behalf of Bombardier.
The evidence
The Pedler Affidavit sets out the work Bombardier has been doing to progress the matter. It is plain that Bombardier has dedicated significant resources to the necessary trial preparation tasks. It is also plain that the tasks are onerous and time consuming.
Ms Pedler sets out a number of matters which, in her opinion, add to the time that will be required to complete the witness outlines. Ms Pedler was admitted in 2003. Since that time she has practiced exclusively in commercial dispute resolution. She is highly experienced. I have no reason to doubt the accuracy of her observations, nor to doubt the genuineness of her beliefs.
In particular, I accept that the preparation of Bombardier's witness outlines will be an iterative process and will also need to take into account the witness outlines served by AVWest.
I further accept that it is appropriate that key individuals be interviewed by a core Ashurst and counsel team with a detailed understanding of the issues.
Ms Pedler also notes the limited time within which witnesses overseas can be interviewed due to differences in time zones. The COVID pandemic prevents the lawyers travelling to the witnesses. Workplace health and safety requirements prevent unreasonable demands being placed upon lawyers and staff.
Ms Pedler deposes that, in her experience and based on her involvement in the proceedings since 2017, she considers 'the approach taken to resourcing this task to be appropriate having regard to the overlapping nature of many of the issues in the proceeding and the time frames involved in those issues, balanced with the need to spread the resourcing to progress the witness preparation process as efficiently as possible'. I have no reason to doubt Ms Pedler's assessment.
Ms Pedler deposes that, based on the matters she sets out, her experience and knowledge of the matter, and the pool of relevant documents currently available, Bombardier will require until at least 31 August 2021 to finalise, file and serve its witness outlines and list of documents it intends to tender. Ms Pedler deposes that, if the additional time is not provided, she considers Bombardier will suffer real prejudice. I have no reason to doubt any of this.
AVWest's submissions
In its written submissions, AVWest opposed the extension of time. It submitted that the evidence provided is deficient and not sufficient to warrant the extension. It further submitted that granting the extension would prejudice it as it would cause delays which may have knock on effects on the time tabling of this matter to trial.
Alleged deficiencies
AVWest submitted that Ms Pedler's evidence as to the extent of work that would be required to meet the deadline is 'vague and imprecise, and lacks important details which would give it any significant probative value'.[3]
[3] Plaintiff's outline of submissions in opposition to the defendant's minute of proposed orders dated 16 June 2021, filed 25 June 2021 (AVWest's Submissions) [13].
AVWest first focused on Ms Pedler's assessment of the number of witnesses who must be interviewed, being at least 18:[4]
That number of potential witnesses appears excessive, in circumstances where the pleadings identify four key Bombardier personnel involved in dealings with AVWest. One of these individuals, Robert Horner, has already provided an affidavit on behalf of AVWest, so it may reasonably be assumed that Bombardier does not intend to put on a witness outline from Mr Horner. Insofar as other individuals from Bombardier's organisation have been involved in dealings with AVWest, it appears from the pleadings that the matters in respect of which they could give evidence fall within a very narrow compass.
Further, even assuming that it is necessary for Bombardier's solicitors to interview in excess of 18 individuals in order to prepare Bombardier's evidence, the Pedler Affidavit fails to provide any indication as to the identity of Bombardier's potential witnesses (such as their roles within Bombardier's organisation), the topics on which it is proposed that they give evidence, or whether their evidence is intended to establish matters of fact raised on the pleadings or to prove assumptions of fact for Bombardier's expert witnesses.
Notably, Ms Pedler's evidence in this respect is not new, and is set out in detail in the affidavit of David Nemes dated 18 December 2017 (Nemes Affidavit). Mr Nemes' evidence was that there were 14 individuals (and possibly more) that Bombardier may need to call as witnesses at any trial of the action (Nemes Affidavit, [50] - [56]).
[4] AVWest's Submissions [15] - [17].
In my view, AVWest's submissions on this point lack merit. I make the following observations.
1.AVWest contended that the number of people Ms Pedler had said needed to be interviewed appeared to be excessive. AVWest's contention is not supported by the identification of only four key personnel in the pleadings.
2.During the hearing, AVWest confirmed this was not an implicit assertion that the deponent had not been honest in her affidavit. Certainly, there is no factual foundation for such an assertion.
3.Further, complex trials inevitably involve many witnesses of differing significance.
4.I reject the proposition that an affidavit prepared in January 2018 would mean that an outline of the deponent's evidence would not be required. Since January 2018, the pleadings have been significantly amended, and discovery progressed. Similarly, I reject the proposition that Ms Pedler's assessment is not new. The Nemes affidavit was filed in 2017.
5.No doubt, it would have been possible for Ms Pedler to include further details of the witnesses. However, it is to be remembered that this is an interlocutory application and the principle of proportionality requires that only sufficient evidence be put forward to support the application, not everything that can possibly be said. It is always a judgment call. Insufficient evidence may cause the application to fail. Unnecessary evidence and too much detail may incur unnecessary and unrecoverable costs.
Size and complexity of the proceedings
AVWest points out that the core allegations have been known to Bombardier since 2017. This is true. Nevertheless, Ms Pedler has explained why more time is needed.
In particular, Ms Pedler has explained the significant resources that have been devoted to the tasks.
Further, Ms Pedler deposes that she considers it more efficient to interview the witnesses by reference to all relevant materials, rather than by tranches of documents as they are discovered. This approach will not always be justifiable if the overall time required to finalise outlines would be significantly longer and would substantially delay the progress of the proceedings. However, in the context of a complex, long running and significant case, and where only a further 6 - 7 week delay is sought, it is not an unreasonable approach to take.
AVWest next points out that the key witnesses must have been interviewed in order to prepare the defence. This is also true. However, pleadings do not (and should not) include matters of evidence. Further, the pleadings were settled prior to the completion of discovery.
AVWest makes other points in relation to the work that could have been done over the years in relation to the factual issues, asserting that the key issues have been known since March 2020.
I have already set out Ms Pedler's views as to the most efficient approach to witness outlines.
Further, I do not consider that a party is required to prepare witness outlines to the fullest extent possible on the material then available throughout the proceedings. In many cases, this will be inefficient and in some cases entirely wasted. Many cases involve numerous amendments to pleadings. The vast majority settle before trial. It will be a judgment call as to what reasonable diligence requires in each case.
I am not persuaded that Bombardier's efforts in relation to obtaining witness outlines has been inadequate.
Finally, even if Bombardier should have spent more time preparing witness outlines in the early stages of the proceedings, the application for an extension of time must be assessed now. That is, having regard to the principles of case management and fairness, should the extension be granted? Any historical delay by Bombardier would be relevant to that question. However, this could not obscure the fact that Bombardier says it will be prejudiced if the extension is not granted. Extensions of time are not denied to punish a litigant. They are denied when it is in the interests of justice to do.
Size of discovery
AVWest challenges various aspects of Ms Pedler's statements as to the impact of the size of the parties' discovery on the preparation of witness outlines.
I do not accept AVWest's challenges.
First, the fact that Bombardier had completed its discovery on 13 May 2021 does not mean that witness outlines should have been able to be filed by the current deadline. I earlier set out my assessment of Ms Pedler's evidence. Ms Pedler has deposed to the size of the task, the difficulties of the task, and her opinion as to the most efficient method to adopt, all of which I accept.
Second, AVWest submits that not all of AVWest's discovery will comprise new documents, and that not all new documents will need to be discussed with witnesses. This is undoubtedly true. Nevertheless, given the size of the discovery and the complexity of the issues, it is reasonable to assume there will be a substantial number of new documents that will need to be discussed with witnesses.
List of documents
AVWest submits that the required list of documents is only a list of the documents referred to in witness outlines.
I accept that is AVWest's understanding of the order. It is not mine. It plainly is not Bombardier's.
Logistical issues
AVWest submits, in effect, that Bombardier should have engaged resources from its global network. I do not accept this. I earlier noted that I accept that it is appropriate that key individuals be interviewed by a core Ashurst and counsel team with a detailed understanding of the issues.
AVWest submits that the different time zones does not pose a unique problem, as witnesses cannot be proofed for more than four hours at a time in any event. While I accept the latter as a general proposition, I do not accept the former. A witness in the same time zone can be contacted repeatedly throughout the day to follow up matters arising without overtaxing the witness. In addition, witness sessions can be broken up into several shorter blocks throughout a day to give the witness a break and to give the lawyers the opportunity to process what emerges in each session so that subsequent sessions can be conducted more efficiently.
AVWest further submits that Bombardier has offered no compelling reason as to why it has left it so late to seek an extension on the basis that some witnesses are no longer employed by it.
I do not consider a reason was required. In March, Bombardier sought more time based on various assertions from the bar table. I asked Bombardier to bring an application for an extension of time in June supported by evidence if it concluded it could not meet the deadline. It has done this. The reasons for its conclusion are, appropriately, set out in the Pedler Affidavit.
Further, and in any event, Bombardier's application is not based on the fact that some witnesses are no longer employed by Bombardier. Ms Pedler has simply noted that some of the witnesses are no longer employed by Bombardier. This is plainly relevant to the difficulty of the task, but was not presented as the basis for the application.
AVWest further submits that Ms Pedler 'provides no detailed plan of work, or evidence supporting why Ms Pedler apprehends that Bombardier requires an additional six weeks to prepare its witness outlines and document list. To this end, the length of the extension sought by Bombardier appears to be arbitrary'.
As I have said, only sufficient evidence should be put forward to support the application, not everything that can possibly be said. I do not consider any further detail was required.
Prejudice to AVWest
If the extension is granted, it will delay the completion of the substantial steps in the timetable from mid-November to the end of December.
It will not interfere with the planned mediation in November.
The matter has not yet been listed for trial and is far from ready to be listed. Any prejudice AVWest may suffer by the proposed extension is minimal.
Assessment
I consider the extension of time should be granted.
First, the proceedings are undoubtedly complex. While the length of the pleadings may be criticised for other reasons, they run to over 400 pages.
Second, AVWest's claims involve more than US$400 million. A significant component of AVWest's claims is the alleged oral agreements. This is relevant in two ways.
1.First, the witnesses who are able to give evidence as to those alleged agreements are crucial, and their outlines warrant considerable care and attention.
2.Second, as pointed out by Bombardier, surrounding and contemporaneous documents will be of particular significance.
Third, Bombardier has not failed to meet prior deadlines.
Fourth, I am satisfied that Bombardier has dedicated significant and appropriate resources to the tasks, and is approaching the tasks in a reasonable manner.
Fifth, I am satisfied that Bombardier will not be able properly prepare its witness outlines and list of documents unless the extension of time is granted. The prejudice it would suffer is self-evident.
Sixth, the prejudice to AVWest is, at most, a delay of less than seven weeks. If the mediation succeeds, it will suffer no prejudice.
Conclusion
For the above reasons, I consider it is appropriate to extend the time sought by Bombardier, and extend the time for AVWest to the same extent. The parties agreed that, if the application was granted, the deadlines for other tasks should be similarly amended. I will make orders to achieve that.
Finally, Bombardier sought an order that AVWest pay Bombardier's costs of the reply submissions and attendance at the hearing today, to be taxed if not agreed. This was not opposed, and I make that order.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KJ
Associate to the Honourable Justice Archer
20 JULY 2021
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