Boral Resources (Vic) Pty Ltd v CFMEU (Ruling No 4)
[2015] VSC 473
•4 September 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2013 00928
| BORAL RESOURCES (VIC) PTY LTD (ACN 004 620 731) AND OTHERS | Plaintiffs |
| and | |
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION | Defendant |
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JUDGE: | Bell J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 September 2015 |
DATE OF RULING: | 4 September 2015 |
CASE MAY BE CITED AS: | Boral Resources (Vic) Pty Ltd v CFMEU (Ruling No 4) |
MEDIUM NEUTRAL CITATION: | [2015] VSC 473 |
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PRACTICE AND PROCEDURE – proceeding for assessment of damages after entry of judgment in default of defence – plaintiff’s application further to amend particulars of damage – trial in ninth day – whether in interests of justice to grant leave – whether prejudice to defendant remediable.
APPEAL – refusal of leave to issue subpoenas – in light of leave being granted further to amend particulars of damage, whether leave to issue subpoenas should be granted – Supreme Court (General Civil Procedure) Rules 2008 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the plaintiffs | Mr S Wood QC with Mr E Gisonda and Mr D Ternovski | Herbert Smith Freehills |
| For the defendant | Ms R Doyle SC with Mr J Gurr and Ms P Knowles | Slater and Gordon |
HIS HONOUR:
Boral applies by summons for leave further to amend its particulars of damage dated 14 April 2015. The application is trenchantly opposed by the union.
Boral also appeals against a decision of Daly AsJ refusing to grant leave to issue subpoenas to produce documents to customers of Boral. The appeal is also trenchantly opposed by the union.
The application for leave further to amend the particulars arises out of the appeal. In the hearing of the appeal, it became clear that the documents sought went to issues that were not covered by Boral’s amended particulars as they currently stand. Hence the application to further amend.
This is an unusual case. As my previous rulings state, judgment in default of defence was entered for Boral against the union for the tort of intimidation. As now taken to have been admitted, the tort was constituted by bans of the union against the purchase of concrete by Boral customers. The judgment requires damages to be assessed. I am now conducting that assessment.
I think it is important for me to remind the parties that, in a civil judicial proceeding like the present, damages are a matter of proof, not conjecture. The purposes of damages are compensatory, not punitive. While the court does the best that it can on the available evidence to restore the aggrieved party to the position that it would have occupied but for the wrong, the process is fact-intensive, objective and disciplined. This applies to the questions of both causation (whether the wrong caused the damage alleged) and quantum (whether the damage is in the amount alleged).
Further, a court does not assess damages by conducting an inquiry. The process is fundamentally different to an inquiry. The court hears and determines the plaintiff’s claim in the context of an adversarial proceeding in which the issues are circumscribed by the pleadings. Because judgment in this case was entered in default of defence, for all practical purposes the particulars of damage function as the relevant pleading. In such a proceeding, the defendant is entitled to put the plaintiff to its proof. In the present proceeding, the union has legitimately put everything in issue except that which it has expressly admitted. Of that, Boral must be taken to have full notice.
While the ground rules that I have just stated arise out of the ordinary rules of civil litigation in a court, the present proceeding has not been ordinary because of the way that judgment was obtained. As the judgment was obtained in default of defence, the parties have not engaged with each other forensically in the usual way. The court has facilitated a process by which that engagement has been able to occur in relation to the issue of damages, but this has happened – up to now – against the background of the default judgment.
Conscious of these matters, in the hearings over the past several days I have tried to ensure that the parties have explained their respective cases fully and clearly to the court and each other. Yesterday, for the parties’ as well as the court’s benefit, I had the parties explain their cases with respect to the issues of causation and quantum by reference to the expert and other evidence upon which they propose to rely. Therefore, whatever lack of clarity may have existed previously, it must now be understood how the parties are putting their cases. In particular, it must be clear that the union is putting Boral to its proof in relation to causation and quantum except where express admissions have been made. In relation to matters not admitted, the issue for the court to determine is not whether matters have not been challenged by the union (because they have been) but whether they have been proved by Boral.
That is not to say that the court will, in this case, be departing from the well-established principle that I have already stated, namely that it must do the best that it can on the available evidence to ensure that the plaintiff is compensated for the wrong that has been done by the defendant. This principle is fully applicable in cases where, as here, judgment has been obtained in default of defence. While the principle is no less applicable in such cases, I think it is also necessary to appreciate that it is no more applicable in such cases. In the end, evidentiary proof of causation and quantum is required as the foundation for the assessment.
Turning to the present application for leave further to amend the particulars of damage, it is regrettable indeed that, after nine days of hearings and the tenth witness having given evidence, Boral considers it to be imperative to seek that leave. After months of preparation and the enormous legal costs that have obviously mounted up on both sides, I would have thought that the parties could conduct the case within known and fixed parameters. Unfortunately, the circumstances reveal that they have passed each other in the night in an important respect.
By programing orders which the court made at the request of the parties, Boral did not obtain the union’s expert reports until 22 July 2015 which was only a month or so before the commencement of the trial. After due consideration, one can find in the detail of these reports a foundation for attacking Boral’s methodology for calculating losses described in its amended particulars of damage as market-wide losses. According to that methodology, Boral seeks to establish the percentage of projects that it sought and won, pre-ban and post-ban. This percentage is to be applied in calculating the damages that Boral seeks under a number of particular heads. The expert evidence of the union is to the effect that Boral’s project list is too small and insufficiently detailed as to the relevant dates. Boral seeks further to amend its particulars to include an alternative claim based upon a wider and more detailed list. As here relevant, it seeks to include high-rise residential projects along with commercial, industrial and engineering projects in the project list, together with the relevant dates. The amendment, if granted, would provide a foundation for issuing the subpoenas sought before Daly AsJ that was not present when her Honour refused leave.
Lest to be misunderstood, I note that this is not the only attack made by the union upon Boral’s case. To repeat, unless it has expressly admitted facts and matters (it has done so and there are, apparently, more admissions to come), it puts Boral to its proof. It criticises the damages-assessing methodology adopted by Boral in other respects and, unless the parties are able to come to terms by mediation (see below), I will have to determine these matters at the conclusion of the trial. Boral has deliberately chosen to address the one criticism that I have mentioned by seeking leave further to amend its particulars and that (with the appeal) is the application that I am now determining.
There is very great force in the union’s submissions opposing the application. At this stage in a trial, it is very difficult for a party to obtain leave to amend. The adverse consequences for the conduct of the trial and the prejudice to the other party must weigh heavily against granting leave. The prejudice here is not just that costs – and I think substantial costs – will be thrown away, which is prejudice that can be remedied by an order for costs against Boral. The prejudice would also include the loss of a forensic advantage that the union presently possesses – that of being able to attack Boral’s case as it currently stands in the relevant respect. Removing that advantage is not remediable.
However, the principles in the authorities[1] and legislation[2] governing this kind of application show that the court must adopt that course which is just. In the present case, the critical consideration is that it would have taken Boral some time after receiving the union’s expert reports to appreciate the implications of their detailed contents for its market-wide loss methodology. Moreover, it did not sit on its hands in the period after the reports were filed and served. Running up to the commencement of the trial, it prepared the subpoenas and sought consent to them being issued and served. When the union refused to provide that consent, Boral sought leave from Daly AsJ. On appeal before me, it has pressed for that leave. By this time, the trial was well underway.
[1]Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 (French CJ, Gummow, Hayne, Heydon, Crennan, Keifel and Bell JJ); Northern Health v Kuipers [2015] VSCA 172 (26 June 2015) (Kyrou and McLeish JJA).
[2] Civil Procedure Act 2010 (Vic).
The consequence of refusing leave would be very great for Boral. Its market-wide loss methodology is critical to aspects of its damages case. While not responding by amendment to other criticisms of the methodology that the union has advanced (it will address these criticisms in its main case), it contends that the further amended particulars (and subsequent issue of subpoenas) would answer the particular criticism advanced. In the circumstance that Boral obtained full knowledge of this criticism only after due consideration of the union’s expert reports, I think it would be unjust to deprive it of the opportunity to address it, despite the fact that granting leave would deprive the union of a forensic advantage.
As to the appeal, Boral sought leave from Daly AsJ to issue subpoenas to 11 of its customers pursuant to O 42A of the Supreme Court (General Civil Procedure) Rules 2005 (Vic). The subpoenas sought production of specified documents to the Prothonotary on a particular date (that is no longer relevant). The documents relate to concrete supply contracts awarded and not awarded to Boral (pre-ban and post-ban) and the dates thereof.
Having regard to my grant of leave to Boral further to amend its particulars, I uphold the appeal and grant the leave sought to issue the subpoenas, but by reference to a new date. The documents sought clearly relate to the issues raised by the further amendment. I reject the submissions of the union in the appeal opposing the grant of this leave.
At the request of the parties, I refer this proceeding (which relates only to the assessment of damages) for judicial mediation before an Associate Judge pursuant to r 50.07.1(1) of the Rules.
By reason of leave being granted further to amend the particulars of damage and for the issue of the subpoenas, the hearing of the trial for the assessment of damages must be adjourned. If the proceeding does not settle, I have indicated to the parties that I want to resume the hearings in the second half of October or in November 2015. I will hear them on the availability of counsel and the progress of the proceeding generally at a directions hearing on 11 September 2015.
There will be orders in the application for further amendment of Boral’s particulars and the appeal accordingly. The orders will include an order that Boral must pay the union’s costs thrown away, as assessed pursuant to liberty apply.
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