Built Environs WA Pty Ltd v Perth Airport Pty Ltd [No 3]
[2019] WASC 399
•7 NOVEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: BUILT ENVIRONS WA PTY LTD -v- PERTH AIRPORT PTY LTD [No 3] [2019] WASC 399
CORAM: KENNETH MARTIN J
HEARD: 7 OCTOBER 2019
DELIVERED : 7 NOVEMBER 2019
FILE NO/S: CIV 1513 of 2016
BETWEEN: BUILT ENVIRONS WA PTY LTD
Plaintiff
AND
PERTH AIRPORT PTY LTD
Defendant
Catchwords:
Practice and procedure - Application for leave to replead previously struck out pleas - Pleading by reference to schedule - Schedule oppressively assembled but substantively insufficient detail of plaintiff's breach of contract case - Discrete pleas of breach - General drawing deficiencies - Insufficient pleas of material facts as to the alleged causative consequences of each drawing deficiency as regards a loss or detriment to plaintiff - Case management considerations of delay, expense and waste associated with this and former pleas - Leave to amend previously struck out pleas refused - No further repleading attempts allowed on this aspect of claim
Legislation:
Rules of the Supreme Court 1971 (WA)
Result:
Application refused
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr S Doyle QC and Mr T Porter |
| Defendant | : | Mr D Miller SC and Mr M R Collins |
Solicitors:
| Plaintiff | : | Baker McKenzie - Brisbane |
| Defendant | : | King & Wood Mallesons |
Case(s) referred to in decision(s):
Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82
Built Environs WA Pty Ltd v Perth Airport Pty Ltd [No 2] [2019] WASC 76
DM Drainage & Constructions Pty Ltd as trustee for the DM Unit Trust t/as DM Civil v Karara Mining Ltd [2014] WASC 170
Ipex ITG Pty Ltd v Melbourne Water Corporation [No 3] [2006] VSC 83
JLW (Vic) Pty Ltd v Tsiloglou [1994] 1 VR 237
KENNETH MARTIN J:
I am dealing with the plaintiff's amended chamber summons filed 4 October 2019, seeking leave to replead pars [14] and [15] of its further amended substituted statement of claim (FASSOC) by fresh pleas in the terms of a minute of proposed amended pleading, also dated 4 October 2019.
The latest proposed iterations of amendments to the FASSOC were marked in purple. This iteration only emerged on the last working day prior to the hearing of the present application.
Background
The need to obtain leave to replead in respect of pars [14] and [15] of the FASSOC arises out of orders which I issued following my earlier decision in this action delivered on 12 March 2019, being Built Environs WA Pty Ltd v Perth Airport Pty Ltd [No 2] [2019] WASC 76 (Built Environs [No 2]).
At the conclusion of those reasons I said:
[52]The present application was advanced initially as a basis to relieve the defendant of further discovery obligations towards pars [11], [14] and [15] of the further amended SSOC. I would accede to the present application. But it is now apparent to me that the underlying cause of the problem is deeper and fundamentally structural. It now needs to be squarely confronted.
[53]I am of the view that pars [14] and [15] of the further amended SSOC must be struck out as embarrassing. That was not appropriate in October 2017. But it is now. When moved, I would give leave to the defendant to amend the present application to pursue that extra strike out relief and then, grant such an application.
[54]I am still inclined, in principle, to allow the plaintiff in the future to amend its pleadings to correct the current deficiencies - but on terms. My terms would require the plaintiff to explicitly commit within a reasonable period to plead in unmistakeable terms as to whether or not it is running a modified total costs claim in this sphere. The necessary accompanying pleas concerning an exclusion of alternate causes for its loss would need to follow. However, if the plaintiff takes a position contending it is running a total costs claim and without modification, then it would need then to provide the proper particulars of causation of financial loss as a condition of obtaining leave to amend in future. If leave is sought then the plaintiff should submit a minute of an amended pleading to obtain leave in those respects.
[55]During the course of arguments, a suggestion was made that a further expert be engaged by the plaintiff in due course to provide the extra causative financial loss information towards the effects of the drawing deficiencies. However, that is inconsistent with order 4 of the December 2017 orders where it was recorded that what was to emerge as the plaintiff's Brannigan report would provide this required financial loss detail. It did not. Manifestly, the plaintiff has still not provided the financial details. Further, the sparse detail that has been provided as regards the drawing deficiencies by the Brannigan report is threadbare at best.
[56]In the end then, I am persuaded to accede to the present application to relieve the defendant of discovery obligations in respect of pars [11], [14] and [15] of the further amended SSOC. But further, when moved, I would strike out pars [14] and [15] of the further amended SSOC, on the basis that they are embarrassing. They still do not provide requisite detail, or meet the pre‑requisites of clarity as regards a position concerning what is strongly suspected to be a modified total costs claim but, if so, is presented in inadequately pleaded fashion.
Subsequent to publication of those reasons the parties had an opportunity to confer. In due course, I issued orders on 4 April 2019 giving effect to those reasons, relevantly providing in terms:
1.The Defendant shall not be required to provide any further discovery in relation to paragraphs [11], [14] and [15] of the Further Amended Substituted Statement of Claim.
...
3.Pursuant to Order 20 rule 19(1) of the RSC, paragraphs [14] and [15] of the Further Amended Substituted Statement of Claim be struck out.
...
6.Subject to obtaining leave, the Plaintiff shall be permitted to re-plead paragraphs [14] and [15] of the Further Amended Substituted Statement of Claim.
7.Any application for leave under Order 6 above must be:
(a)made on or before 28 June 2019; and
(b)accompanied by a minute of proposed amended pleading, which must expressly plead whether the claim arising from the alleged General Drawing Deficiencies is a global claim/modified total costs claim or a conventional damages claim and plead the necessary elements and particulars thereof.
After a chambers directions hearing on 4 July 2019, following an application by the plaintiff for more time, I varied order 7 of the 4 April 2019 orders by extending the time for any application for leave by the plaintiff to amend pars [14] and [15] by a further two months, to 28 August 2019.
At the hearing on 4 July 2019, in support of that application to gain more time the plaintiff had read and relied upon an affidavit of a partner at the plaintiff's lawyers, Aleisa Jane Crepin sworn on 28 June 2019, which contended that significant further ongoing work would be required by her 'team' before the task of completing a repleading of the struck out pars [14] and [15] in respect of the general deficiencies drawing claim could be pursued.
I also issued some ancillary orders on 4 July 2019 concerning the required provision of documents to the defendant that had been relied upon by the plaintiff. Furthermore, I then set a special appointment hearing for Monday, 7 October 2019, to resolve any contested issues over the leave application which it was anticipated at that time the plaintiff would make. That hearing was to deal with any issues with an attempted repleading of the struck out pars [14] and [15] should that attempt prove to be contentious which, as I rather suspected, has since come to pass.
The present application
The 28 August minute of pleading
On 28 August 2019, the plaintiff's lawyers ultimately filed that day a chamber summons seeking leave to replead pars [14] and [15] in terms of what was the then an 'attached' minute of proposed amended pleading. The minute extended across 236 pages, including its many schedules. I will refer to this minute as 'the 28 August minute of pleading'.
The 28 August minute of pleading displayed no suggested changes to the as then existing par [11], which had commenced then under a heading 'General deficiencies' and then read:
In breach of the terms pleaded in [5](f), [6] or [7] above, or alternatively, in breach of the warranty pleaded in [5](g) or [8] above, the Drawings and Specifications did not meet the standard referred to in [9] above and were deficient (General Drawing Deficiencies).
By that then par [11] iteration particulars of alleged general drawing deficiencies had followed, via the ensuing six subparagraphs [11](a) through (f) and reading in the following terms:
(a)The deficiencies in the electrical building services engineering and vertical transportation drawings are set out in section 6.8 of the Preliminary Expert Report of Gerry Brannigan dated 16 April 2018 (Brannigan Report) at pages 30 to 39;
(b)The deficiencies in the mechanical building services engineering drawings are set out in section 7.7 of the Brannigan Report at pages 45 to 49;
(c)The deficiencies in the hydraulic building services engineering drawings are set out in section 8.7 of the Brannigan Report at pages 54 to 58;
(d)The deficiencies in the mechanical file protection engineering drawings are set out in section 9.7 of the Brannigan Report at pages 63 to 65;
(e)The deficiencies in the architectural drawings are set out in section 10.7 of the Brannigan Report at pages 76 to 96; and
(f)The deficiencies in the façade engineering drawings are set out in section 11.7 of the Brannigan Report at pages 105 to 110.
That plea had reflected the position of the plaintiff as at 15 June 2018 by its former Further Amended Statement of Claim, by showing amendments of that date in green.
Significantly, in the context of my earlier striking out of pars [14] and [15] and the present application for leave to replead, there had followed under the 28 August minute of pleading, the then proposed to be revised and amended pars [14] and [15], marked in purple. I set them out verbatim below (albeit they are now overtaken):
[14]As a result of the General Drawing Deficiencies, and each of them, it was necessary for the Plaintiff to undertake, in respect of each of the drawings identified in Schedule V, work additional to that within the Scope of Work, in order to identify and rectify the deficiency or each deficiency in the drawings by the steps identified in Schedule V in relation to each such drawing.
Particulars
In Schedule V:
a)the documents in the column 'RFI references' are requests for information made by the Plaintiff to obtain information to overcome the deficiency in the drawings against which the RFI is entered in the schedule;
b)the sketches identified in the column headed 'sketch references' identify the sketches prepared by the Defendant's Project Designers, on behalf of the Defendant, which the Plaintiff had to review with a view to overcome the deficiency identified in the drawing against which the sketches reference is entered in the schedule;
c)the correspondence in the column 'correspondence reference' identifies the steps taken, in relation to the drawing against which the correspondence reference is entered in the schedule, to identify the deficiency and to seek information required to overcome the deficiency identified in the drawing, and more particularly:
(i)the documents containing the reference 'CTRRFI' identify the requests for information made by the Plaintiff's subcontractors to the Plaintiff, which the Plaintiff had to process and manage;
(ii)the documents containing the reference 'App_Corp-RTRFI', 'Aurecon-RTRFI' and 'WBAUS-RTRFI' identify the responses of the Owner's Representative or Defendant's Project Designers, on behalf of the Defendant, to the Plaintiff's requests for information;
(iii)the documents containing the reference 'BEPL-RTRFI' identify the Plaintiff's responses to the requests for information made by the Plaintiff's subcontractors;
(iv)the documents containing the reference 'BEPL-NOD' identify the notices of delay which it was necessary for the Plaintiff to prepare and issue to the Owner's Representative advising of delays associated with the deficiency identified in the drawing against which the document reference is entered in the schedule;
(v)the documents containing the reference 'BEPL-VR' identify the variation requests prepared and issued by the Plaintiff to the Owner's Representative advising that the Plaintiff considers that the response of the Owner's Representative or Defendant's Project Designers to the Plaintiff's requests for information is a variation direction under clause 13.1(b);
(vi)the documents containing the reference 'CONTADV' identify advices issued by the Plaintiff to the Owner's Representative (including notifications that responses to the Plaintiff's requests for information are outstanding);
(vii)the documents containing the reference 'PMA' or 'AA' identify advices issued by the Owner's Representative or Defendant's Project Designers to the Plaintiff providing or purporting to provide information in relation to the deficiency in the drawing against which the document reference is entered in the schedule;
and
(viii)the documents containing the reference 'GCOR' identify other correspondence issued by the Plaintiff, the Plaintiff's subcontractor or the Owner's Representative (as the case may be) in relation to the deficiency in the drawing against which the document reference is entered in the schedule.
[15]By reason of the matters pleaded in pargraphs [sic] [11] and [14], the Plaintiff suffered loss and damage.
Particulars
The Plaintiff's loss and damage is the value of the manhours spent undertaking the work necessary to identify and rectify the deficiency or each deficiency in the drawings, as particularised in Schedule V, including the preparation or consideration of the RFIs, sketches and/or correspondence particularised in Schedule V. The Plaintiff’s personnel who, variously, performed that work and those hourly rates of those personnel are particularised in Schedule V.
The Plaintiff expressly states that this claim is a conventional damages claim.
Whilst now overtaken, it may be seen that those proposed amendments under the 28 August minute of pleading had been structured on the basis of a heavy reliance directed at information said to be contained in Schedule V of that minute, but which Schedule had altered considerably to the previous FASSOC Schedule V.
Most significantly, however, within that 28 August minute of pleading was an explicit statement found at the end of the particulars to par [15] of that minute which, displayed as seen above, the following sentence:
The Plaintiff expressly states that the claim is a conventional damages claim. (my emphasis)
The present action, of course, has not yet been entered for a trial. And the present issues are only a limited aspect of what presents overall, as a much broader construction dispute. There is consequently still the unlimited leave for the parties to amend their pleadings before trial – but subject to orders of the court made to the contrary. The only aspect of the action in respect of which leave is required to amend (and so to replead) by reason of orders imposing that constraint concerns the now struck out former pars [14] and [15] by reason of the terms of my previous strike out orders.
As must be appreciated those strike out orders came to be issued in the February 2019 context of what I assessed then had been an unacceptable ongoing lack of clarity over several years concerning the true nature of the breach of (building) contract claim that the plaintiff was then actually pursuing as regards alleged general drawing deficiencies made against the defendant.
The focus in terms of evaluating the present leave application to amend is therefore primarily directed to what is now proposed by the plaintiff concerning the further contended amendments to pars [14] and [15] for which leave is required but is opposed by the defendant. However, as will emerge, within that framework of the leave application, it has become necessary to consider even further proposed amendments within a further minute of pleading which inter‑relate with the proposed amendments in respect of which leave is sought for the repleading pars [14] and [15]. Related changes are to be found within par [11] and under a further revised and amended (yet, still incomplete) Schedule V to the minute.
The contemporary iteration of proposed amendments circulated as at 4 October 2019
As is evident from the materials put before me, the parties, through their respective legal representatives, have been in heavy dialogue over the merits and demerits of the proposed draft repleaded amendments to pars [14] and [15]. Various objections have been articulated by the defendant's lawyers against earlier iterations as proposed. Emerging out of that dialogue there has emerged a further iteration of a minute of amended pleading (subsequent to the 28 August minute of pleading), with the proposed changes again marked in purple upon the minute and which was issued by the plaintiff's lawyers on Tuesday, 1 October 2019.
However, that 1 October 2019 minute of pleading iteration has itself then been overtaken (no doubt following even more conferral communications between the legal representatives). The end consequence was that it was not until Friday, 4 October 2019, the last working day before the fixed special appointment for hearing the application, that the current iteration of a proposed Second Further Amended Substituted Statement of Claim (with amendments in purple) then issued, now made in respect of pars [11], [14], [15] and with a significantly revised Schedule V.
To try and avoid confusion, I will refer to the plaintiff's minute of Second Further Amended Substituted Statement of Claim which was filed on 4 October 2019 (being folio document 158 on the court's electronic document filing system) as the SFASSOC minute.
SFASSOC minute - pars [11], [14], [15] and Schedule V
For convenience, I set out next below all relevantly proposed changes for which leave is sought to amend under the SFASSOC minute to pars [11], [14] and [15], as well as and some parts of the lengthy and still challenging, Schedule V:
General deficiencies
[11]In breach of the terms pleaded in paragraphs [5](f), [6] or [7] above, or alternatively, in breach of the warranty pleaded in [5](g) or [8] above, the Drawings and Specifications did not meet the standard referred to in paragraph [9] above and were deficient (General Drawing Deficiencies),
and as a consequence, the Drawings and Specifications required additional work and augmentation by:a)the issuing of 7,565 requests for information, under the Contract;b)the processing and management of 4,842 requests for information from subcontractors;c)the review of 6,723 sketches issued by the Defendant and the Defendant's Designers;d)the carrying out of not less than 1,211 Variations;e)an increase in resources applied by the plaintiff;f)the raising of 709 extension of time claims; andg)the issuing of 7,737 delay notices and requests for extensions of time,(General Drawing Deficiencies)Particulars of General Drawing Deficiencies
The Drawings and Specifications that did not meet the standard referred to in paragraph [9] above are those identified in the column titled "IFC Drawing Reference" in Schedule V. For each identified document, the deficiency relied on by the Plaintiff is stated in the column titled "Deficiency / Brannigan Report Reference", or is identified in that column by reference to an item in the Preliminary Expert Report of Gerry Brannigan dated 16 April 2018.
a)
The deficiencies in the electrical building services engineering and vertical transportation drawings are set out in section 6.8 of the Preliminary Expert Report of Gerry Brannigan dated 16 April 2018 (BranniganReport) at pages 30 to 39;b)
The deficiencies in the mechanical building services engineering drawings are set out in section 7.7 of the Brannigan Report at pages 45 to 49;c)
The deficiencies in the hydraulic building services engineering drawings are set out in section 8.7 of the Brannigan Report at pages 54 to 58;d)
The deficiencies in the mechanical fire protection engineering drawings are set out in section 9.7 of the Brannigan Report at pages 63 to 65;e)
The deficiencies in the architectural drawings are set out in section 10.7 of the Brannigan Report at pages 76 to 96; andf)
The deficiencies in the façade engineering drawings are set out in section 11.7 of the Brannigan Report at pages 105 to 110.Deficiencies in structural steel drawings
[12]…
Damages
[13]…
[14]As a result of the General Drawing Deficiencies, and each of them, it was necessary for the Plaintiff to undertake, in respect of each of the drawings identified in Schedule V, work additional to that within the Scope of Work, in order to identify and rectify the deficiency or each deficiency in the drawings by the steps identified in Schedule V in relation to each such drawing.
Particulars
In Schedule V:
a)the documents in the column 'RFI references' are requests for information made by the Plaintiff to obtain information to overcome the deficiency in the drawings against which the RFI is entered in the schedule;
b)the sketches identified in the column headed 'sketch references' identify the sketches prepared by the Defendant's Project Designers, on behalf of the Defendant, which the Plaintiff had to review with a view to overcome the deficiency identified in the drawing against which the sketches reference is entered in the schedule;
c)the correspondence in the column 'correspondence reference' identifies the steps taken, in relation to the drawing against which the correspondence reference is entered in the schedule, to identify the deficiency and to seek information required to overcome the deficiency identified in the drawing, and more particularly:
(i)the documents containing the reference 'CTRRFI' identify the requests for information made by the Plaintiff's subcontractors to the Plaintiff, which the Plaintiff had to process and manage;
(ii)the documents containing the reference 'App_Corp-RTRFI', 'Aurecon-RTRFI' and 'WBAUS-RTRFI' identify the responses of the Owner's Representative or Defendant's Project Designers, on behalf of the Defendant, to the Plaintiff's requests for information;
(iii)the documents containing the reference 'BEPL-RTRFI' identify the Plaintiff's responses to the requests for information made by the Plaintiff's subcontractors;
(iv)the documents containing the reference 'BEPL-NOD' identify the notices of delay which it was necessary for the Plaintiff to prepare and issue to the Owner's Representative advising of delays associated with the deficiency identified in the drawing against which the document reference is entered in the schedule;
(v)the documents containing the reference 'BEPL-VR' identify the variation requests prepared and issued by the Plaintiff to the Owner's Representative advising that the Plaintiff considers that the response of the Owner's Representative or Defendant's Project Designers to the Plaintiff's requests for information is a variation direction under clause 13.1(b);
(vi)the documents containing the reference 'CONTADV' identify advices issued by the Plaintiff to the Owner's Representative (including notifications that responses to the Plaintiff's requests for information are outstanding);
(vii)the documents containing the reference 'PMA' or 'AA' identify advices issued by the Owner's Representative or Defendant's Project Designers to the Plaintiff providing or purporting to provide information in relation to the deficiency in the drawing against which the document reference is entered in the schedule;
and
(viii)the documents containing the reference 'GCOR' identify other correspondence issued by the Plaintiff, the Plaintiff's subcontractor or the Owner's Representative (as the case may be) in relation to the deficiency in the drawing against which the document reference is entered in the schedule.
[15]By reason of the matters pleaded in pargraphs [sic] [11] and [14], the Plaintiff suffered loss and damage.
Particulars
The Plaintiff's loss and damage is the value of the manhours spent undertaking the work necessary to identify and rectify the deficiency or each deficiency in the drawings, as particularised in Schedule V, including the preparation or consideration of the RFIs, sketches and/or correspondence particularised in Schedule V. The Plaintiff’s personnel who, variously, performed that work and those hourly rates of those personnel are particularised in Schedule V.
The Plaintiff expressly states that this claim is a conventional damages claim.
[16]…
[17]…
[18]…
The newly proposed amendments relating to pars [14] and [15] are unintelligible without reference to the content of the amended Schedule V.
Schedule V spans in total 42 pages, running between pages 150 to 192 of the contemporary iteration of the SFASSOC minute. To illuminate the present position I propose to set out from Schedule V only the first five and the last three pages. I do that particularly so that Schedule V's column reference headings can be seen and, in particular, some insight towards the ramifications of the currently blank hours/quantum final column seen at the extreme right column of Schedule V, may be confronted.
Schedule V
[First five (5) pages of schedule V]
General Drawing Deficiencies Particulars - RFIs, Sketches and/or Correspondence
| Item | IFC Drawing Reference | Deficiency / Brannigan Report Reference | RFI Reference(s) | Sketch Reference(s) | Correspondence Reference(s) | Hours / Quantum |
| Electrical Building Services Engineering Drawings | ||||||
| 1. | 501B-300-DWG-AUR-ELE-0005 | Section 6.8, item 6 | BEPL-RFI-000934 | BEPL-GCOR-005693 APP_Corp-RTRFI-000403 | ||
| 2. | 501B-300-DWG-AUR-ELE-1106 | Section 6.8, item 20 Lack of coordination between electrical design and architectural design Lack of coordination between electrical design and column design | BEPL-RFI-002100 BEPL-RFI-002341 | 501B-300-DWG-AUR-ELE-1106-SK-0132 501B-300-DWG-AUR-ELE-1106-SK-0298 | Greenco-CTRRFI-000193 BEPL-CONTADV-009749 APP_Corp-RTRFI-001198 BEPL-RTRFI-001053 Greenco-CTRRFI-000218 APP_Corp-RTRFI-001275 BEPL-RTRFI-001083 BEPL-GCOR-018587 APP_Corp-PMA-013276 BEPL-GCOR-018618 | |
| 3. | 501B-300-DWG-AUR-ELE-1107 | Lack of coordination between electrical design and architectural design | BEPL-RFI-002913 | Greenco-CTRRFI-000266 | ||
| 4. | 501B-300-DWG-AUR-ELE-1108 | Section 6.8, item 22 | BEPL-RFI-000754 | 501B-300-DWG-AUR-ELE-1108-SK-0111 501B-300-DWG-AUR-ELE-1108-SK-0224 | Greenco-CTRRFI-000052 Aurecon-RTRFI-000109 BEPL-RTRFI-000410 Greenco-GCOR-000548 | |
| 5. | 501B-300-DWG-AUR-ELE-1110 | Section 6.8, item 24 | BEPL-RFI-000754 BEPL-RFI-004199 | 501B-300-DWG-AUR-ELE-1110-SK-0195 501B-300-DWG-AUR-ELE-1110-SK-0225 501B-300-DWG-AUR-ELE-1110-SK-0394 | Greenco-CTRRFI-000052 APP_Corp-RTRFI-002643 | |
| 6. | 501B-300-DWG-AUR-ELE-1120 | Section 6.8, item 27 | BEPL-RFI-001249 | Greenco-CTRRFI-000103 BEPL-GCOR-008519 APP_Corp-RTRFI-000499 BEPL-RTRFI-000638 APP_Corp-RTRFI-000535 | ||
| 7. | 501B-300-DWG-AUR-ELE-1132 | Lack of information as to seating layout | BEPL-RFI-001574 | APP_Corp-RTRFI-000710 | ||
| 8. | 501B-300-DWG-AUR-ELE-1133 | Section 6.8, item 29 | 501B-300-DWG-AUR-ELE-1133-SK-0398 | |||
| 9. | 501B-300-DWG-AUR-ELE-1137 | Lack of information as to seating layout | BEPL-RFI-001574 | APP_Corp-RTRFI-000710 | ||
| 10. | 501B-300-DWG-AUR-ELE-1138 | Lack of information as to seating layout | BEPL-RFI-001574 BEPL-RFI-001322 | 501B-300-DWG-AUR-ELE-1138-SK-0288 | APP_Corp-RTRFI-000710 Greenco-CTRRFI-000110 APP_Corp-RTRFI-000613 BEPL-RTRFI-000699 APP_Corp-RTRFI-000754 BEPL-RTRFI-000772 | |
| 11. | 501B-300-DWG-AUR-ELE-1152 | Lack of coordination between design and construction staging | BEPL-RFI-001535 | 501B-300-DWG-AUR-ELE-1152-SK-0190 | Greenco-CTRRFI-000105 BEPL-CONTADV-007298 APP_Corp-RTRFI-000876 BEPL-RTRFI-000895 | |
| 12. | 501B-300-DWG-AUR-ELE-1304 | Section 6.8, item 69 | BEPL-RFI-004316 | Greenco-CTRRFI-000394 APP_Corp-RTRFI-002632 BEPL-VR-000824 | ||
| 13. | 501B-300-DWG-AUR-ELE-1306 | Section 6.8, item 71 Lack of coordination with 501B- 300-DWG-WBAUS-ARC-44001 | BEPL-RFI-000906 BEPL-RFI-001703 | 501B-300-DWG-AUR-ELE-1306-SK-0050 501B-300-DWG-AUR-ELE-1306-SK-0078 501B-300-DWG-AUR-ELE-1306-SK-0363 501B-300-DWG-AUR-ELE-1306-SK-0393 | Greenco-CTRRFI-000062 | |
| 14. | 501B-300-DWG-AUR-ELE-1308 | Section 6.8, item 73 Some details inconsistent with 501B-300-DWG-AUR-ELE-0015 | BEPL-RFI-002243 BEPL-RFI-002528 | 501B-300-DWG-AUR-ELE-1308-SK-0052 501B-300-DWG-AUR-ELE-1308-SK-0080 501B-300-DWG-AUR-ELE-1308-SK-0181 501B-300-DWG-AUR-ELE-1308-SK-0182 501B-300-DWG-AUR-ELE-1308-SK-0282 501B-300-DWG-AUR-ELE-1308-SK-0367 501B-300-DWG-AUR-ELE-1308-SK-0395 | Greenco-CTRRFI-000207 Greenco-CTRRFI-000225 | |
| 15. | 501B-300-DWG-AUR-ELE-1310 | Section 6.8, item 75 Lengths of the cat6 cabling within the design longer than permitted by the standards Lack of coordination between electrical design for the cable tray and the rest of the electrical design Lack of coordination with the location of café water meters outside of the café tenancy | BEPL-RFI-002245 BEPL-RFI-002266 BEPL-RFI-003154 | 501B-300-DWG-AUR-ELE-1310-SK-0054 501B-300-DWG-AUR-ELE-1310-SK-0081 501B-300-DWG-AUR-ELE-1310-SK-0145 501B-300-DWG-AUR-ELE-1310-SK-0146 501B-300-DWG-AUR-ELE-1310-SK-0161 501B-300-DWG-AUR-ELE-1310-SK-0283 501B-300-DWG-AUR-ELE-1310-SK-0315 501B-300-DWG-AUR-ELE-1310-SK-0396 | Greenco-CTRRFI-000208 Greenco-CTRRFI-000210 Greenco-CTRRFI-000295 | |
| 16. | 501B-300-DWG-AUR-ELE-1406 | Section 6.8, item 97 Lack of coordination between electrical design and architectural design | BEPL-RFI-003610 BEPL-RFI-003359 | Greenco-CTRRFI-000293 Greenco-CTRRFI-000277 | ||
[End of first five (5) pages of Schedule V]
...
[Last three (3) pages of Schedule V]
General Drawing Deficiencies Particulars - Hourly Rates of Plaintiff's Personnel
| Name | Hourly Rate (exclusive of GST) | |
| 1. | Mr Chris Lye | 20/05/2013 to 15/06/2014: $88.21442 per hour 16/06/2014 to 31/12/2014: $88.01302 per hour 01/01/2015 to 01/04/2015: $90.21346 per hour |
| 2. | Ms Rochelle Slater | 01/07/2012 to 31/12/2013: $50.28221 per hour 01/01/2014 to 15/06/2014: $55.28846 per hour 16/06/2014 to 03/08/2014: $55.16159 per hour 04/08/2014 to 17/09/2015: $72.11538 per hour |
| 3. | Mr Allan Penaranda | 30/04/2012 to 31/12/2013: $81.73077 per hour 01/01/2014 to 15/06/2014: $83.17308 per hour 16/06/2014 to 04/09/2014: $82.98222 per hour |
| 4. | Mr Steve Martin | 01/01/2012 to 31/12/2013: $61.62885 per hour 01/01/2014 to 15/06/2014: $66.34615 per hour 16/06/2014 to 12/12/2014: $66.19391 per hour 13/12/2014 to 06/01/2017: $69.71154 per hour |
| 5. | Mr Sam Reinboth | 01/01/2013 to 31/12/2013: $58.17308 per hour 01/01/2014 to 15/06/2014: $62.50000 per hour 16/06/2014 to 03/08/2014: $62.35658 per hour 04/08/2014 to 31/07/2016: $81.73077 per hour 01/08/2016 to 08/01/2017: $87.81202 per hour |
| 6. | Mr John Forde | 19/08/2013 to 15/06/2014: $72.61046 per hour 16/06/2014 to 31/12/2014: $72.44468 per hour 01/01/2015 to 03/12/2015: $74.25579 per hour |
| 7. | Mr Troy Versteeg | 11/03/2013 to 31/12/2013: $60.09615 per hour 01/01/2014 to 15/06/2014: $62.50000 per hour 16/06/2014 to 31/12/2014: $62.35731 per hour 01/01/2015 to 14/03/2016: $63.91635 per hour |
| 8. | Mr Ciaran Leonard | 15/05/2013 to 31/12/2013: $38.46154 per hour 01/01/2014 to 15/06/2014: $40.38462 per hour 16/06/2014 to 31/12/2014: $40.29241 per hour 01/01/2015 to 03/12/2015: $41.29952 per hour |
| 9. | Mr Cesare Daulerio | 01/05/2013 to 31/12/2013: $38.46154 per hour 01/01/2014 to 30/04/2014: $39.42308 per hour |
| 10. | Mr Hayden Bridson | 13/01/2014 to 15/06/2014: $67.30769 per hour 16/06/2014 to 31/12/2014: $67.15402 per hour 01/01/2015 to 03/11/2015: $68.83269 per hour |
| 11. | Mr Julien Rule | 23/01/2013 to 31/12/2013: $24.03846 per hour 01/01/2014 to 15/06/2014: $28.84615 per hour 16/06/2014 to 31/12/2014: $28.78029 per hour 01/01/2015 to 09/08/2015: $29.50000 per hour |
| 12. | Mr David Zyntek | 28/04/2014 to 15/06/2014: $56.71875 per hour 16/06/2014 to 31/12/2014: $56.58925 per hour 01/01/2015 to 06/01/2017: $57.29663 per hour |
| 13. | Mr Daniel Brogan | 16/03/2012 to 31/12/2013: $43.26923 per hour 01/01/2014 to 25/03/2014: $45.67308 per hour 26/03/2014 to 15/06/2014: $55.28846 per hour 16/06/2014 to 02/09/2015: $55.16159 per hour |
| 14. | Mr Alex Willshire | 02/04/2012 to 16/06/2013: $26.02404 per hour 17/06/2013 to 31/12/2013: $31.71875 per hour 01/01/2014 to 15/06/2014: $35.09615 per hour 16/06/2014 to 31/12/2014: $35.01602 per hour 01/01/2015 to 12/06/2015: $35.89135 per hour |
| 15. | Mr Sivamainthan Kamalanathan | 07/04/2014 to 15/06/2014: $45.67308 per hour 16/06/2014 to 31/12/2014: $45.56880 per hour 01/01/2015 to 30/03/2015: $46.13846 per hour |
| 16. | Mr Matthew Whitaker | 02/04/2012 to 31/12/2013: $26.02404 per hour 01/01/2014 to 15/06/2014: $29.32692 per hour 16/06/2014 to 02/11/2014: $29.25963 per hour 03/11/2014 to 08/09/2016: $36.05769 per hour |
| 17. | Mr Cian Allen | 09/07/2013 to 30/04/2014: $52.92885 per hour 01/05/2014 to 08/04/2016: $58.17308 per hour |
| 18. | Darrell Shrives | 01/10/2014 to 31/12/2014: $64.90385 per hour |
| 19. | Mr Tom Lewicki | 01/06/2012 to 31/01/2013: $26.46442 per hour 01/01/2013 to 31/12/2013: $30.28846 per hour 01/01/2014 to 15/06/2014: $36.05769 per hour 16/06/2014 to 31/12/2014: $35.97537 per hour 01/01/2015 to 23/09/2016: $36.87452 per hour |
| 20. | Mr Rabia Nassereddine | 01/01/2013 to 06/01/2013: $36.53846 per hour 07/01/2013 to 31/12/2013: $44.10721 per hour 01/01/2014 to 01/02/2014: $46.63462 per hour 02/02/2014 to 03/09/2014: $50.72356 per hour 04/09/2014 to 16/04/2015: $64.90385 per hour |
| 21. | Mr Alan Hall | 01/01/2012 to 15/06/2014: $56.00192 per hour 16/06/2014 to 31/12/2014: $55.87341 per hour 01/01/2015 to 27/03/2015: $57.27019 per hour |
| 22. | Mr Adam Tennant | 28/04/2014 to 15/06/2014: $60.09615 per hour 16/06/2014 to 31/12/2014: $59.95895 per hour 01/01/2015 to 16/10/2015: $60.70865 per hour |
| 23. | Mr Prasanna Saravanamuttu | 15/04/2013 to 31/12/2013: $39.69663 per hour 01/01/2014 to 15/06/2014: $40.86538 per hour 16/06/2014 to 17/08/2014: $40.77209 per hour 18/08/2014 to 25/04/2015: $48.07692 per hour |
| 24. | Mrs Yvette Koch | 30/01/2013 to 31/12/2013: $39.69663 per hour 01/01/2014 to 16/01/2014: $41.34615 per hour |
| 25. | Mr Tristan Howard | 02/07/2012 to 03/03/2013: $33.08974 per hour 04/03/2013 to 30/06/2013: $33.91987 per hour 01/07/2013 to 08/12/2013: $34.76976 per hour 13/01/2014 to 15/06/2014: $74.17067 per hour 16/06/2014 to 18/07/2014: $74.00134 per hour |
The defendant's position
Many of the present difficulties may be traced to what is now seen as an oppressively assembled, acronym-heavy and jargon laden Schedule V – but which on my assessment even decoded, is an ultimately vacuous document as regards carrying within it the prerequisite breach of contract material facts to support the present claims.
On Friday 4 October 2019, the defendants filed an outline of written submissions indicating continued opposition to a grant of leave to replead pars [14] and [15]. That same day the plaintiff had filed its last proposed iteration of amended proposed pleading (being the SFASSOC minute).
The defendants complain that the draft plead by the SFASSOC minute, remains structurally incomplete. More importantly, the defendant says that the incomplete draft pleading tracked into its descent into Schedule V, is still conceptually deficient, for multiple reasons as articulated by those submissions.
The defendant's in principle difficulties with the proposed amendments
The defendant's written submissions first refer to the historic conceptual deficiencies in the former pleading as to general drawings deficiencies (being the Substituted Statement of Claim dated 1 September 2017 (SSOC) and FASSOC) - as I had explained under [22] ‑ [29] of Built Environs [No 2].
The defendant's outline then contended (correctly) that all earlier iterations of the plaintiff's statements of claim had failed to adequately address the core issue of causation – towards explaining how the plaintiffs contended financial loss and damage has resulted by reason of the various argued deficiencies in many general drawings as such drawings had been initially provided to the plaintiff by the defendant for its 'Works'. In terms of an explanation of how that (alleged) loss had resulted a so called Preliminary Expert Report of Gerry Brannigan of 16 April 2018 (the Brannigan Report) for the plaintiff had not, as hoped, addressed that issue of damage causation of the plaintiff's claimed financial loss arising as a result of the (many) alleged general drawing deficiencies.
Nor had some cosmetic amendments to the SSOC made by the FASSOC addressed that causation of loss issue, despite a clear intent of the order 4 of my orders of 13 December 2017, issued to that end: see Built Environs [No 2] [51]. By those reasons I said that if it were the case that the plaintiff was running a conventional damages claim, then it would need to provide 'the proper particulars of causation of financial loss': see Built Environs [No 2] [54].
The defendant's written submissions say that the plaintiff has enjoyed a fulsome opportunity since the court's orders of 4 April 2019 (following Built Environs [No 2]) to address these chronic pleading problems, and it later obtained even more time, by reason of a two month extension requested and granted to them in July 2019. The defendants say that is a more than generous enough period of time for the plaintiff to address the problems as regards pars [14] and [15], in the wake of Built Environs [No 2]. They say the last iteration of proposed amendments emerged exactly six months afters my orders on 4 April 2019 (ie, at 4 October 2019).
As seen, the plaintiff has since my Built Environs [No 2] reasons, provided various iterations of proposed amendments seeking to rehabilitate pars [14] and [15], at 28 August 2019, followed by a further iteration on 1 October, then, finally, a latest attempt on 4 October 2019.
The defendant says that by its lawyer's letter of 2 October 2019 it asked the plaintiff's lawyers to clarify whether the Schedule V referenced Brannigan Report had exhaustively listed all the general drawing deficiencies that were complained of by the plaintiff, or whether Schedule V (as it then manifested under the iteration of 1 October 2019) had manifested some newly contended extra general drawing deficiency claims (ie beyond those found identified in the Brannigan Report): see the affidavit of Alesia Jane Crepin sworn 5 October 2019 (Crepin October affidavit), AJC-10.
The defendant now complains that only by a letter of 4 October 2019 did the plaintiff's lawyers explicitly then say (the defendant says for the first time) that there were extra drawing deficiency claims now being made - and going beyond those to be found within the Brannigan Report: see Crepin October affidavit, AJC-11.
The plaintiff's lawyer's letter of 4 October 2019 appeared to suggest that even further work was still continuing by the lawyers as regards a likely detecting of even more drawing deficiency claims and what were proposed to be added at some time in the future to the presently unfinished Schedule V.
The defendant as a result, strongly complains that the proposed pleading (especially the protean Schedule V, which is a vital component of the revised pars [14] and [15]) is still not in a final form and is, at least as regards possibly even more alleged general drawing deficiencies emerging in future, currently still only a 'work in progress'.
The defendant complains that, even after so much time, the plaintiff is yet to provide a settled final amended pleading and, further, that the plaintiff has added, and looks likely to continue in the future to add, even more claims of alleged general drawing deficiencies – deficiencies going well beyond those as were identified in the Brannigan Report, but without any sufficient explanation provided for why these extra drawing grievances continue to trickle out.
The defendant also complains that the as proposed draft amendment seen under the SFASSOC minute fundamentally still contains no details at all as to how the plaintiff's contended financial losses argued as being caused by the alleged general drawing deficiencies, had come about in the series of resulting from a drawing deficiency. No details at all of that loss causation are provided, even from within Schedule V, or so as to enable the defendant to make a calculation of any such claimed loss.
Even more so, the defendant complains that the manner in which the plaintiff has suffered a loss is not pleaded, whether by reference, perhaps, to an alleged loss of opportunity, or to alleged additional costs being incurred, by it, or perhaps on some other basis.
The defendant also complains that the mere provision of a list of persons' names and their hourly rates, as now seen at the end of Schedule V, but without any effort at all to specify the character of an allegedly caused loss resulting, is not a proper plea of a caused loss said to result from a defect(s) in a drawing.
The current SFASSOC minute only says the plaintiff's financial loss is 'the value of the manhours spent undertaking the work necessary to identify and rectify the deficiency': see par [15]. The defendant points out that the list of plaintiff personnel and their respective hourly rates, seen at pages 188 - 192 (at the end of Schedule V), does not contain the details of which actual plaintiff personnel allegedly worked on which of the various defective drawing documents as are identified at pages 150 - 188 of Schedule V, or the amount(s) of time each person is said to have spent addressing an alleged defect issue as is complained of. The defendant's complaint, in short, is that (at par 21 of the defendant's written submissions):
... the list does not enable a calculation of the plaintiff's claim or an understanding of the basis upon which the claim is put.
And despite what is the expressly seen averment to the contrary now seen at the end of the particulars to par [15] (quoted earlier at [18] and seen in context at [22] of these reasons), the position of the defendant is that the 'true' claim on a careful analysis, that is still pursued by the plaintiff 'remains a global or modified total cost claim' and further that (at par 22 of the defendant's written submissions):
Such claims are global in nature because, among other matters, they do not draw any causal link between particular items and particular parts of work or the incurring of any particular cost. (emphasis in original)
To that same end, the defendant refers to Beech J's observations in the DM Drainage & Constructions Pty Ltd as trustee for the DM Unit Trust t/as DM Civil v Karara Mining Ltd [2014] WASC 170 decision at [41] and which, in turn, I had referred to at [43] of Built Environs [No 2].
In essence then, the grievance of the defendant in still opposing leave to amend is that the proposed repleading amendments sought to pars [11], [14] and [15] of the SFASSOC minute (incorporating Schedule V) are misconceived and embarrassingly incomplete. The same underlying lack of detail problem has not been remedied.
Hence, it is put by the defendant that leave to amend pars [14] and [15] under such circumstances must be refused. The point has finally been reached, in effect, where 'enough is enough' and it should not be asked as a matter of fairness and proper case management to ask it to tolerate any more delay, waste, changes of position and more multiple unexplained extra grievances emerging ad hoc.
Ms Crepin's affidavits
After the defendant's outline of submissions had been filed and served on Friday 4 October 2019 before the listed hearing, the Crepin October affidavit emerged to support the plaintiff's application for leave.
The Crepin October affidavit is of 157 pages and contains attachments AJC1 through AJC13. It exhibits much correspondence exchanged between the parties' respective lawyers passing back and forth between 28 August 2019 and 4 October 2019.
By her October affidavit Ms Crepin also referred to and relied upon her earlier affidavit sworn 28 June 2019 (the Crepin June affidavit).
The Crepin June affidavit
The Crepin June affidavit deposed that much work had been done over the general drawing deficiencies claim in the period from 4 April 2019 to 28 June 2019 and outlined even further work that Ms Crepin had assessed at that time as remaining to be done (see par 4).
The Crepin June affidavit spans 234 pages. It was on the basis of that affidavit I granted, in effect, a further extension of an extra two‑month period from July 2019, for the plaintiff to advance its application for leave to replead pars [14] and [15] of the previous FASSOC. Paragraph 29 of the Crepin June affidavit read:
By its application dated 28 June 2019, the Plaintiff seeks an order that the time for applying for leave to re‑plead paragraphs [14] and [15] of the FASSOC be extended from 28 June 2019 to 28 August 2019. Such an extension would allow the Plaintiff to re-plead the General Drawing Deficiencies claim, with the necessary particulars, all at once, rather than in a piecemeal fashion.
At par 30 Ms Crepin then deposed:
Taking into account the progress made since April 2019, an extension of two months is a reasoned estimate of how long it will take to complete the task of particularising the loss and damage for each drawing deficiency.
I had then subsequently granted the plaintiff a two-month extension to complete all that work by the orders which I issued on 4 July 2019.
The Crepin October affidavit
The Crepin October affidavit speaks of additional RFIs (a reference to requests for information issued by the plaintiff to the defendant ‑ over drawings provided by the defendant and said to be deficient) as identified by her 'team'. Ms Crepin says at par 12:
The total number of RFIs required to be reviewed has increased from 3,850 (the number known to me at 28 June 2019) to 7,311 (the number known as at the date of this affidavit). Rather than there being about 1,500 RFIs that remain to be reviewed in order to complete the pleading, there were in fact 3,461. The total amount of remaining work more than doubled.
Ms Crepin further deposes that from about 16 August 2019 her team had been undertaking the work of reviewing additional documents, obtaining instructions about them and then, as a result, making amendments to Schedule V of the proposed amended pleading (par 13).
Next, she relates that on 26 August 2019, further RFIs identified by her team as being potentially relevant to the plaintiff's claim were provided 'to the Plaintiff for review by its personnel' (par 14). Ms Crepin says that at 28 August 2019, about 600 RFIs remained to be reviewed out of the number of 7,311 (par 15).
The Crepin October affidavit further deposes that by 28 August 2019 Ms Crepin's team had identified various personnel of the plaintiff who were involved in the tasks the subject of Schedule V and they (the team) had taken instructions about the hourly rates of those personnel (par 17).
However, she says further that her team by that date had still not obtained particulars of the number of hours as expended by the personnel of the plaintiff spent on 'work directed at the identification and rectification of deficiencies in the drawings' (par 18).
On 28 August 2019 (the last day allowed under my orders of 4 July 2019) the plaintiff filed its application for leave to amend. On the same day, Ms Crepin advised the lawyers for the defendant that further RFIs of potential relevance had been identified, that review work was continuing and that, as a result of that further review work, 'further documents may be identified for inclusion in Schedule V' leading to the potential future amendment to Schedule V (as it then read) (par 20).
At pars 26 and 27 of her affidavit, Ms Crepin related:
The Plaintiff's review of the documents has identified coordination and practical issues in many of the designs (such as clashes between drawings from different design disciplines and clashes between drawings and existing services), in addition to the design issues referenced in the Brannigan Report. The additional deficiencies identified by the Plaintiff were subsequently added to Schedule V in the 'Deficiencies/Brannigan Report' column.
As at the date of this affidavit, there are no RFIs remaining for my team to review (out of the 7,311 known RFIs). There are approximately 900 potentially relevant RFIs which remain to be reviewed by the Plaintiff's personnel.
Ms Crepin then refers to voluminous correspondence passing between the parties' respective lawyers from 28 August 2019 onwards. The further minute of proposed amended pleading sent on 1 October 2019 is addressed at par 35 of the Crepin October affidavit, explaining that work was being done to obtain further particulars of damage under a further proposed amended pleading. Ms Crepin deposes at par 39 that:
The pleading and particularisation of the General Drawing Deficiencies claim has, since 4 April 2019, required a massive amount of work by my team and by the Plaintiff.
By par 40 of the Crepin October affidavit, Ms Crepin describes various aspects of the work carried out by her team. At par 41 she says her team has globally spent approximately 556 hours since April 2019 carrying out work and with approximately 360 hours of that work being in the period post 4 July 2019. At par 42 she says:
The only issued [sic] disclosed in KWM's 26 September letter left to be addressed is the provision of particulars of the hours taken by the Plaintiff's personnel to address each of the deficiencies. The Plaintiff is addressing this issue as quickly as it can. But as described below, it is a time consuming process and (together with the further RFI review work) will take some further weeks to complete.
At par 43 of her last affidavit, Ms Crepin deposes that whilst her team has completed a review of RFIs, 'there are approximately 900 potentially relevant RFIs which remain to be reviewed by the Plaintiff's personnel'. At par 44 Ms Crepin deposes that the plaintiff has informed her that a further four weeks (from 7 October 2019) will be required in order to complete that review. I interpolate the reference to the 'review' being of the further 900 potentially relevant RFIs. Ms Crepin says that she is further informed by the plaintiff that (par 45):
... [A] further 6 weeks, from the date of the hearing, will be required to finalise all of the particulars of 'manhours' in the 'Hours/Quantum' column of Schedule V.
At par 46 she says:
I am informed by the Plaintiff that the work of preparing the 'manhours' particulars can, at this stage, only be performed by a single employee and is a very time consuming task. The time required to prepare the 'manhours' particulars for each claim will differ. But I am informed that while some may take less than an hour, others may take several hours. Given that, at present, there are over 150 claims, the Plaintiff estimates that hundreds of hours of work will be required. The period of 6 weeks has been estimated taking into account the time required to undertake this work, together with the time that will be required to complete the RFI review work.
Concerning the current state of the minute of pleading under the incomplete Schedule V therein, at par 47 Ms Crepin deposes:
It is likely that the outcome of the review of the further 900 RFIs will be the addition of further rows (claims of breach) in Schedule V. I believe that work, of adding further rows into Schedule V, can be done within a short time after the review is completed, and within the 6 week period contemplated for the completion of the 'manhours' particulars.
The plaintiff's written submissions of 7 October 2019
Following the Crepin October affidavit, the plaintiff filed an outline of written submissions, arriving only on the morning of the hearing of the plaintiff's application - namely, on Monday, 7 October 2019.
Under those late submissions, the plaintiff contends it has, by its SFASSOC minute, now addressed the 'abiding structural difficulty' that was identified under my Built Environments [No 2] reasons and, further, that (par 13):
... [T]he Plaintiff seeks leave to plead conventional damages claims. It does not advance a global claim.
The plaintiff says that its proposed pleading contends for the existence of a contractual obligation to the effect that the defendant was obliged to provide it with drawings and specifications for 'Works' of a particular standard and, further, by a (new) plea seen made under par [11] (as proposed to be amended) that the plaintiff pleads that this obligation was breached 'because the defendant provided to the plaintiff drawings that did not meet the contractual standard' (par 16).
Explaining a related amendment proposed recently to par [11], the plaintiff identifies what is now a shift away from a former exclusive reliance as regards alleged general drawing deficiency breaches as contained in the report of Mr Gerry Brannigan. It says at par 17:
The amended particulars state that the defective drawings are identified in the column entitled 'IFC Drawing Reference' in Schedule V [to the SFASSOC minute].
The facts now relied on by the plaintiff as amounting to a breach of the contractual standard, are said to be identified in the column titled 'Deficiency/Brannigan Report Reference' within Schedule V. Those facts are said to be descriptions of the particular way in which the plaintiff now would argue that each general drawing it received is alleged to fall below the contractual standard. The column still contains references to the Brannigan Report but, in further instances, now advances beyond the Brannigan Report, to allege even further drawing deficiencies.
At par 17 the plaintiff submits by reference to par [26] of the Crepin October affidavit that:
... these additional defects have emerged as a result of the review which has been undertaken by [Ms Crepin's] team and the Plaintiff over the last month ...
In essence then, it is submitted that Schedule V of the SFASSOC minute pleads 151 individual and distinct claims of breach of contract – against the contractual obligation of the defendant to provide the plaintiff with drawings and specifications of a particular standard (but which, inferentially they were not, according to the plaintiff).
In terms of the pleaded causation of loss and damage to the plaintiff, this issue was dealt with under pars 19 through 22 of the plaintiff's written submissions of 7 October 2019. Since, in the end, I am of the view that the issue of causation of the plaintiff's loss and damage remains inadequately addressed and still remains an abiding structural problem, as it has long been, it is important that the precise content of the plaintiff's submission about the causation of its losses be seen as it is proposed to be articulated.
The plaintiff's written submissions, pars 19 - 22 as regards causation of loss say this:
19.For each breach, the Plaintiff's case is that by reason of being provided with a drawing that contained deficiencies (in that it fell below the contractual standard), it was required to perform work to address those deficiencies ([14] of the proposed pleading). The damage is the additional cost to the Plaintiff of performing that work ([15] of the proposed amended pleading).
20.The General Drawing Deficiencies claims are conventional damages claims. For each claim, it will be necessary for the Plaintiff to establish that, by reason of the Defendant's breach, it incurred a quantifiable cost that it would not otherwise have incurred.
21.The work done by the Plaintiff in respect of each allegedly deficient document is the subject of detailed particulars. The Plaintiff has identified in schedule V, for each deficient drawing, the specific project documents that record or relate to the work done by the plaintiff to address the alleged deficiency. In [14] the plaintiff has identified the nature of the work that is shown in each category of project document:
(c)RFIs record requests for information made by the Plaintiff to obtain information to overcome the deficiencies ([14], particular (a));
(d)sketches were prepared by the Defendant for the purpose of seeking to overcome the deficiencies in the drawings, and had to be reviewed by the Plaintiff ([14], particular (b));
(e)correspondence (of which there are various kinds, each with its own identified code) record the various steps taken to identify and overcome the deficiencies ([14], particular (c)).
22.The Defendant has all of the project documents identified in schedule V, either because they were readily available from their own records or because they were produced by the Plaintiff in accordance with orders made on 4 July 2019.
Earlier I have set out parts of Schedule V, at its commencement and at its conclusion.
It will then have been observed towards that Schedule V, that the extreme right hand side 'Hours/Quantum' column, in the most contemporary iteration of Schedule V (in the SFASSOC minute as at 4 October 2019), is left presently blank.
I discussed with counsel at the hearing what might be possibly forthcoming to add to Schedule V in the next six weeks. I rather gathered from senior counsel for the plaintiff during the hearing (during his reply) that it now appeared to be the case that what is envisaged to be forthcoming from the plaintiff for the currently blank 'Hours/Quantum' column, will only be an aggregate hours figure (see ts 449 – 450).
I took senior counsel's response to my question on that issue to mean that there would be no further attempt by the plaintiff to link a global hours figure to any of the 25 potential personnel, as now identified at the end of Schedule V. Nor, I also inferred, would there be any future link of a fixed number of hours within any particular column reference - said to have been specifically directed at rectifying or to addressing any particular alleged general drawing deficiency.
For illustration purposes I will take item 2 seen in Schedule V, in reference to one drawing of the plaintiff there identified under the second column ('IFC Drawing Reference'). At the third column from the left, under a heading 'Deficiency/Brannigan Report Reference', there currently appear to be at least three alleged drawing deficiency grievances. The first is the reference to 's 6.8 item 20', within the Brannigan Report (which report is accepted not to identify the causative loss consequences resulting from any drawing deficiency). But, there now follows the item 2 reference in Schedule V to two further grievances. These are an alleged lack of coordination grievances, put on a two‑fold basis as there identified.
In that context, I take senior counsel's response to my question to mean that an aggregate number of hours that might potentially appear in six weeks' time in the right‑hand 'Hours/Quantum' column - say, hypothetically, 100 hours to be inserted for item 2. But a bare 100 hours figure provided in future would not then show any breakdown as between any of the alleged three different deficiencies put against this drawing, and identified in the 'Deficiency/Brannigan Report Reference' column. In my view, such a 'rolled up' position is still vague, disengaged and ultimately forensically unfair to the defendant (and to the court). The position of the pleading even with that extra hours figure added, remains wholly unsatisfactory.
In terms of quantifying damages, the plaintiff proposes to, with such hours information added, then multiply that time quantity by the relevant personnel's hourly rate, to then derive a 'cost for each defective drawing' (par 23). The plaintiff's written submissions provides at par [25]:
The quantum of damage for each claim is the product of the hours of rectification work done by relevant personnel and the hourly rate of those personnel.
It is said at par 27 that:
The current absence of particulars of 'man hours' is not a defect in the pleaded case. A claim for unliquidated damages may be quantified in a Plaintiff's evidence. But in the present case, the Plaintiff is not withholding anything. It requires more time to provide those particulars'.
Referring to general case management techniques, the plaintiff refers to a decision of the former Chief Justice in Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82, particularly at [5] - [8] and [16], contending that a need to provide particulars has to be assessed in the case management environment under which parties 'can be assured that the case will not go to trial before various orders have been made requiring the pre-trial disclosure of all the evidence that will be adduced at trial': see Barclay Mowlem [16]. The plaintiff then contends there is no prospect the defendant would be taken by surprise by the pleading of the general drawing deficiencies claim that is contained in the SFASSOC minute.
Further, it is contended that multiple discretionary factors favour a grant of leave, albeit on the basis that particulars of missing 'manhours' in the right-hand column of Schedule V could be ordered to be provided by 18 November 2019, or alternatively that the leave application be adjourned until after those particulars are provided.
Some of the discretionary factors said to favour a grant of leave are then assembled by the plaintiff, including efforts made by the plaintiff and its legal team to complete the pleading prior to 7 October 2019, particularly by reference to matters addressed under the Crepin October affidavit. First, it is said that the plaintiff's lawyers alone spent over 550 hours undertaking work necessary to prepare the amended general drawing deficiencies claims.
Second, it is contended that after 28 June 2019, more RFIs emerged as being identified to require review, thereby explaining why Ms Crepin's earlier two‑month estimate as at 28 June 2019 did not materialise as was then forecast.
Third, it is put that there is no prejudice to the defendant if a grant of leave is made or an extension granted in order for the pleading to be finalised (which I assume to be a reference to completing Schedule V). By contrast, a very significant alleged prejudice to the plaintiff is highlighted. The significant investment in legal resources by the plaintiff is identified and it is said that all of that time and cost will be wasted if leave or an extension of time to finish the work were to be refused. It is said that questions of (loss) causation must remain to be the subject of argument at trial, that the plaintiff's amended general drawing deficiencies claim discloses a prima facie case and that if leave were to be refused or an extension of time not granted, the plaintiff would be denied the opportunity of pursuing that part of its case.
Fourth, as to discretion, it is contended that the plaintiff through its lawyers has, in effect, been more than accommodating to try and address all requests for further information made through passing correspondence with the defendant's lawyers, particularly since it was not, they say, until 26 September 2019 that the defendant had raised objections to the proposed amended pleading. Further it is said that, save for the exception of giving the 'man hours', all objections raised against the amended proposed pleading iteration as at 1 October 2019, have been now addressed.
Finally, it is said that work by Ms Crepin's team is continuing on the general drawing deficiencies claim, so it is likely that further 'rows' (that is, further breach claims) will emerge to be added to Schedule V in the future. Although no order is sought as to this, the plaintiff says it would be amenable to a direction that the time for all such work to be completed should, as per the estimate in the Crepin October affidavit, be on a basis of that work taking a further six weeks' time to complete be allowed (see the plaintiff's written outline of submissions pars 40 and 41).
The Ipex decision
During the course of oral submissions by senior counsel for the defendants I was referred to a first instance decision of Byrne J in the Supreme Court of Victoria Commercial and Equity Division (Long Cases List) in the matter of Ipex ITG Pty Ltd v Melbourne Water Corporation [No 3] [2006] VSC 83. Although, of course, the facts are necessarily different, senior counsel relied on some observations by Byrne J within that decision in the context of what looked to be an hours claim, particularly his Honour's ultimate conclusion that the way that hours claim had been pleaded was inadequate and embarrassing, leading to pleading relief in that respect.
I mention but do not cite his Honour's observations seen at [4], [6], [10], [16], [17], [21] and [23]. At [26] of his Honour's reasons he explained what he there identified as being more correctly described as a total time/cost claim. His Honour explained steps involved in establishing such a claim at [26] and added at [28]:
But, even so, it is for the plaintiff to decide how it will quantify this loss but the Court will expect it to do so by showing, in a case such as the present, that the breach caused Ipex to perform certain extra work which is valued at a certain sum unless this evidence is not obtainable ...
applying observations of Brooking J in JLW (Vic) Pty Ltd v Tsiloglou [1994] 1 VR 237, 241 and the cases there referred.
Evaluation and decision as to leave to replead pars [14] and [15]
Central to the attempted reconstitution of proposed pars [14] and [15] in respect of which leave is now sought are the pleas under altered particulars to par [11] which now make a direct reference to the content of the SFASSOC minute's Schedule V iteration. In particular, as regards alleged breach of contract, the key Schedule V column is headed 'IFC Drawing Reference'.
As now seen, that 'IFC Drawing Reference' column within Schedule V remains a work in progress with further future augmentations foreshadowed. In other words, even further alleged breaches of contract as regards general drawing deficiencies are foreshadowed to emerge in future. That is said to be as a result of the review work still being undertaken, but which possibly might conclude within the next six weeks. In other words, almost three and a half years after this action was commenced (with the writ of summons being issued on 31 March 2016), possible contended breaches of contract alleged by the plaintiff, are still emerging.
But these potential breaches of contract in reference to alleged general drawing deficiencies are only emerging in piecemeal fashion. Again, by way of illustration, by reference to Schedule V and item 2, it can be seen that two 'lack of coordination' grievances, between electrical design and architectural design and, moreover, as between electrical design and column design have recently arrived. But the new grievances as articulated within item 2 are still in the vaguest of terms. No real or tangible detail about a so called 'lack of coordination' has been forthcoming.
Significantly, however, the Schedule V 'Correspondence Reference(s)' column, illustrated by reference again to item 2, therein, now makes reference to ten differently identified pieces of correspondence. Decoding that column is a confrontingly oppressive task. It would essentially leave the defendant (and the court) to find out for themselves, out of what a multifarious group of assembled documents might hold, once located, then to assess them and possibly derive some details therein from such a document (taking account of their prefixes as identified under par [14] particulars (c)(i) through to (viii)), as the source of such documents. Currently, I can gain no clues about what all those prefixed documents might contain, if I ever could locate and assemble them and know what I was looking for.
Taking account of a representation that a future global amount of 'manhours' details will fill out the content of the right-hand column of Schedule V at the end of a further six weeks, the problematic issue still is whether that is a sufficient identification of the plaintiff's breach of contract contentions as regards currently (on the SFASSOC minute iteration) some 151 different general drawings to be assessed against multiple grievances identified under the 'Deficiency/Brannigan Report' column or whatever else emerges. In my view, this is not an acceptable, or workable regime of sufficient clarity to viably engage with, or to conduct a trial upon.
The underlying premise of the Schedule V formulation is actually a search for 'a grail' of detail pursued via pars [11], [14] and [15], but presently ending in exhaustion and despair. What is proposed, in my assessment, is based on a promise that once multifarious, prefixed and referenced documents are all identified found and assembled together, that finally, that details jigsaw will be complete and then all necessary information addressing the plaintiff's causation of financial loss issue, will then be evident. However, given past adverse experiences, I am sceptical.
By use of the column seen within Schedule V, the plaintiff is asserting that additional work by it had to be completed, when faced with the allegedly defective drawings as first provided by the defendant (in one or potentially multiple respects of alleged deficiency). By proceeding in such a way, the plaintiff is essentially asking the defendant (and the court) to take its assertions completely on trust. However, the problematic reality of the situation for the plaintiff is that such an assessment can only be properly made after the work is completed.
Regrettably, after case managing this action for over three and a half years, I am not prepared to take a gamble on receiving proper detail emerging in future from the plaintiff.
As presently constructed by the SFASSOC minute, the proposed amendments to pars [14] and [15] do not provide fundamental required details in relation to explaining the alleged financial losses said to have been caused by each drawing deficiency as complained of. In effect, the defendant (and the court) are asked to wallow around in too much differently sourced prefixed documentation in order to attempt to guess for themselves what the plaintiff's case is about, what the caused loss is, and how that it is said to have resulted consequently from an allegedly deficient drawing in one or more defective respects. This is not acceptable.
The currently proposed amendments to pars [14] and [15] now eschew one previous glaring structural deficiency – namely not making it clear whether there was a global total cost claim, or a conventional damages several breach claim. But that previous structural problem as now recognised, was a manifestation of an underlying illness in this pleading ‑ namely, an unclear and prejudicial lack of detail to engage with, over how it is said that each alleged drawing deficiency found in each allegedly defective drawing can or did lead to a particular type of adverse lack of detail consequence for the plaintiff and so, to a loss being suffered by this plaintiff out of the deficiency, if shown.
If the plaintiff's case really is that a particular deficiency in a particular drawing had caused one or other of its employees or its subcontractors, to have to do X number of hours of extra work to get or derive extra needed information, or to prepare new drawings in order to enable the plaintiff to proceed with the proper execution of the airport work for which it was engaged, then surely by now that can be articulated in a fashion capable of being more briefly and precisely expressed - in terms of what the actual alleged financial loss consequence was for the plaintiff. That has not and has never been done. It remains the fundamental problem which I simply cannot allow to continue unabated.
I previously extended time as requested, by a period of two months beyond the period allowed under my 4 April 2019 orders for the task as regards a rehabilitation of pars [14] and [15]. Basically, what is now proposed by the current pleading amendments assessed under the SFASSOC minute in aggregate as proposed pars [11], [14] and [15] (and with Schedule V), is still wholly inadequate as the defendant submits. The prospect of running a viable trial on such a pleading in that form is, on my present assessment, untenable. Even on the plaintiff's arguments, an identification of further deficiencies in Schedule V column three ('Deficiency/Brannigan Report' reference) will only emerge over the next weeks. Further distinctly contended extra breaches of contract are foreshadowed to emerge.
Is it fair, bearing in mind the time, namely over three and a half years, which has now expired, to ask this defendant to deal with and respond to what is now proposed? The answer, to my mind, is in the negative. It is not fair to ask the defendant to wallow around in Schedule V and work out what the plaintiff's case is as regards particularly causation of loss. Nor, contrary to what senior counsel for the plaintiff submitted, is it satisfactory for the matter be left to be addressed later on by a request made by the defendant for more particulars. Too much adverse pleading history has passed to suggest that could be a tolerable or viable path at this time.
Too much time has now run, over multiple prior iterations of these attempted pleas, for the plaintiff to still not to be able to give a coherent description of the deficiency contended for within each drawing it complains about and then, to say what adverse financial consequence by way of damage to it, have resulted from and followed each such drawing deficiency. That issue has never yet been satisfactorily addressed. There has been ample time for it to be addressed. The enigma that is the current Schedule V, does not provide help.
I hold no confidence going forward that within a further period of weeks that the abiding structural problems in this respect would be satisfactorily addressed. A future emergence of global amounts of 'man hours' to fill out the distinct 151 columns within Schedule V, still would address the fundamental underlying causation of loss problem. I hold no hope at all on that horizon, following the hearing of 7 October 2019.
The point has now been reached where more than ample opportunity has been provided for vices in this general deficiency of drawings plea to be properly addressed. Case management considerations under O 1 r 4(a) and r 4(b) of the Rules of the Supreme Court 1971 (WA) arising out of this issue not being addressed for too long and all the resultant waste, cost and delay oppressively tied to that, must be fairly confronted. Enough time has run. Enough waste and cost has ensued and been endured by the defendant.
I add that, on my assessment, much work may, of course, have been done by Ms Crepin's legal team in terms of engaging with large amounts of documentary information over many hours. However, I do not equate the application of numerical amounts of hours of work by team members sorting over and through documents, as being persuasive of itself. Rather, the impression I have gained from case managing this action over three and a half years is that the nature of team exercises performed in terms of global amounts of hours devoted to tasks is numerical, rather than cerebral - being the feature demonstrably lacking which the current iteration of Schedule V.
I add that the missing information as regards causation of financial loss is the kind of preparatory detail that ought to have been assembled for a claim like this before the writ was issued in this action (some three and a half years ago) in order for a plaintiff to, through its legal advisers, to then hold a reasonable basis for commencing and pursuing a breach of contract damages action, in the first place. Trying to scramble together information late from one allocated person from the plaintiff who would appear to be left as charged with dealing with the issues of the plaintiff's lawyers, is hardly an adequate explanation (see Crepin October affidavit par 46).
That the plaintiff chooses, as senior counsel relates, to only devote minimal human resources now to assembling information for Ms Crepin's legal team because it itself has moved on to other projects in other parts of the world, betrays a low prioritisation of resources to this action.
As regards discretionary matters, therefore, I am in the end not persuaded the plaintiff has advanced any sort of persuasive basis towards leave to replead pars [14] and [15] in the terms of the SFASSOC minute, which I refuse ‑ and permanently as of now. Prima facie, the defendant should have its costs of the present application on the basis that costs should follow the outcome, but I will hear the parties about that on the papers if costs orders are not agreed.
Orders
These orders shall issue upon the publication of these reasons:
1.Leave to amend in respect of pars [14] and [15] is refused.
2.All issues as to the costs of this application are reserved.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DW
Associate to the Honourable Justice Martin7 NOVEMBER 2019
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