Built Environs WA Pty Ltd v Perth Airport Pty Ltd [No 6]
[2021] WASC 266
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: BUILT ENVIRONS WA PTY LTD -v- PERTH AIRPORT PTY LTD [No 6] [2021] WASC 266
CORAM: KENNETH MARTIN J
HEARD: ON THE PAPERS
DELIVERED : 6 AUGUST 2021
FILE NO/S: CIV 1513 of 2016
BETWEEN: BUILT ENVIRONS WA PTY LTD
Plaintiff
AND
PERTH AIRPORT PTY LTD
Defendant
Catchwords:
Practice and procedure - Further and better discovery orders in aftermath of published reasons - Disagreements over timing and residual issues of drafting resolved - Turns on own facts
Legislation:
Nil
Result:
Interlocutory orders settled
Category: B
Representation:
Counsel:
Plaintiff : No appearance Defendant : No appearance Solicitors:
Plaintiff : Baker McKenzie - Brisbane Defendant : King & Wood Mallesons Case referred to in decision:
Built Environs WA Pty Ltd v Perth Airport Pty Ltd [No 5] 2021 WASC 237
KENNETH MARTIN J:
1In the aftermath of the revision and publication of the reasons provided in Built Environs WA Pty Ltd v Perth Airport Pty Ltd [No 5] 2021 WASC 237 (revised reasons published 16 July 2021), my chambers has received a number of minutes and emails from the parties concerning the appropriate orders. Essentially, there is a chorus of discontent, largely from the plaintiff.
2In relation to the defendant's chamber summons of 22 January 2021 (as amended on 3 June 2021) there appears only minimal controversy over the appropriate orders.
3Here, I refer to rival minutes of the parties both of 28 July 2021. The defendant's minute is e-folio document 267. The rival minute of the plaintiff is e-folio document 272. Essentially, the only controversy remaining is in relation to timing issues - in terms of the compliance with the otherwise uncontroversial order for further and better discovery being made against the plaintiff.
4Essentially, I propose to allow the plaintiff all the time that it now seeks under its minute (e-folio document 272) in relation to compliance with these orders.
5I take that course, in effect, as was proposed under an email from the defendant's lawyers (Mr Cobbett) of 28 July 2021 at 4.02 pm, where Mr Cobbett eventually says:
We understand that the plaintiff opposes these timings and says that it should be allowed a longer period to provide its discovery and the defendant should be required to provide its discovery in a shorter period than provided for in the attached orders. In order to avoid the need for the parties to make further submissions on such questions of timing, the defendant does not oppose a course of action which involves:
(a)the defendant being permitted the time that it requires until 29 October 2021 to provide discovery pursuant to the orders on the plaintiff's application (as set out in the attached orders); and
(b)the plaintiff being permitted the time that it says that it requires to provide discovery pursuant to the orders on the plaintiff's application (provided that the time required corresponds with the minute provided to us by the plaintiff's solicitors during conferral).
6I agree. I accept that is the sensible course as regards all residual timing disputes in both sides' further and better discovery applications.
7Consequently, on the defendant's further and better discovery application - orders will issue in terms of the plaintiff's minute (e-folio document 272) and its schedule.
The plaintiff's further and better discovery application
8More substantive disagreement has ensued over the appropriate orders to issue on the plaintiff's application against the defendant seeking further and better discovery.
9To that end, after publication of the revised reasons on 16 July 2021, my chambers has received the defendant's proposed minute of orders (e-folio document 268) of 28 July 2021 along with the rival proposed orders as submitted by the plaintiff under two minutes which are e‑folio document 269 and the alternate minute (e-folio document 270), respectively.
10Also received from the parties' lawyers and directed through my Associate were a series of email communications concerning the rival proposed orders including, relevantly:
(a)the email of Mr Cobbett of the defendant's legal representative of Friday, 23 July 2021 at 10.56 am;
(b)Mr Cobbett's further email of Wednesday, 28 July 2021 at 4.02 pm;
(c)the email of Ms Emily Ng of the plaintiff's lawyers of Wednesday, 28 July 2021 at 7.15 pm;
(d)Mr Cobbett's email on behalf of the defendant's lawyers of Thursday, 29 July 2021 at 10.25 am; and
(e)Ms Ng's email of Thursday, 29 July 2021 at 3.27 pm.
11The email from Ms Ng of 28 July 2021 attached a further outline of written submissions from the plaintiff - which it sought leave to file. But by response, Mr Cobbett indicated that if the plaintiff were granted leave in that respect, then the defendant would also seek to file more responsive written submissions and would seek leave to that end. Then Ms Ng's email of 29 July ((e) above) foreshadowed the plaintiff's objections to the defendant being given an opportunity to file further responsive (written) submissions. Enough!
12In the end, save in respect of a small component of the plaintiff's proposed written submissions of 28 July 2021 (e-folio document 271), I refuse leave to the plaintiff to file any further written materials on this application - save in respect of what it says, rather self-evidently, concerning costs orders. This is in relation to costs aspects of the plaintiff's application not dealt with and which were adjourned. The relevant submissions as to costs orders are in pars 28, 29 and 30.
13Save in relation to that one further costs issue, any further attempted re-ventilation of arguments, including an attempted raising of objections to aspects of issues earlier resolved or that might have been dealt with earlier on the present application, is now inappropriate and will not be allowed. Consequently, it is not necessary to deal with the defendant's request to file any further written submissions by way of a response.
The last issue
14The court's published reasons of 16 July 2021 (Built Environs WA Pty Ltd v Perth Airport Pty Ltd [No 5] [2021] WASC 237) expressly say after the heading 'Later developments' commencing at [54], particularly at [56] - [60] - there was just one last outstanding issue to be dealt with. This was an issue raised late against par 2(b) of Annexure 1, as it is seen in [54] of those reasons. The issue was raised only during the reply of senior counsel for the plaintiff on 26 June 2021. Effectively, as an indulgence, I then allowed that late submission to be ventilated. Given its late articulation (see [57]) there was no adequate opportunity for that new point of objection to properly be considered or dealt with. See also [59] of the published reasons.
15But that was the only outstanding issue, save for the few matters identified as expressly stood over to be dealt with later, if necessary, following conferral and which do not appear to be that controversial.
16That last outstanding issue arose by reference to the defendant's minute of proposed orders, e-folio document 268, as the subject of a reworking of the defendant's proposed order 2 of Annexure 1, as seen at [54] of the published reasons.
17The plaintiff's late expressed concern by senior counsel was over the wording of then par 2(b), effectively taking away what the defendant had otherwise conceded under (then) par 2(a) to disclose.
18That as expressed drafting concern is addressed under changes to the defendant's submitted revised minute under e-folio document 268.
19Substantially, the concern of the plaintiff is now dealt with by the defendant rendering another concession. Hence, what was formerly par 2(b) is seen in the revision as now proposed by the defendant - to be made subject to what was previously seen as the accepted disclosure obligation under par 2(a).
20By the defendant's revised minute, e-folio document 268, par 2(a) and par 2(b) are renumbered and reworked to become revised as pars 2 and 3, respectively. The first thing to be noted is that, as revised, par 3 is expressed at the outset to be subject to order 2.
21In my view, that explicit paramountcy revision sufficiently caters for the as expressed last issue concern which was the subject of senior counsel for the plaintiff's objection as raised in her reply on 25 June 2021.
22Whilst rendering that adjustment as a new preface to par 3 (formerly par 2(b)), the defendant has also sought to augment by way of an attempted clarification what was formerly par 2(a) and has now become par 2.
23Essentially, under the proposed augmentations to the former par 2(a) of the minute, as seen at [54] of the published reasons, the defendant would seek to add some more qualifying terms to the end of par 2, reading:
... but such discovery is not to include such correspondence and documents that were:
(i)created or exchanged after APP had completed the relevant certification function(s); and (or)
(ii)otherwise (that is, not otherwise discoverable under this order 2) subject to 'without prejudice' privilege or legal professional privilege
24The defendant's position is that these changes are consistent with my primary reasons and a statement by me during the two-day hearing
- that the defendant should not be required to discover documents after the relevant certification function has been performed (referring to 25 June 2021 transcript at pages 659 - 660). I agree.25However, the plaintiff as advised under its email of 28 July 2021 will not accept such revisions to the defendant's minute.
26By reference to the terms of a rival proposed minute, e-folio document 269, it now seeks to excise in entirety what was formerly par 2(b) - which has since in the defendant's minute become order 3.
27That basis of objection seems to me to be a wholesale attempted fresh attack against proposed par 3 - on the basis that it is said to be meaningless or unnecessary. I reject the plenary challenge.
28By my assessment, the clarification as is now provided by the introductory words to par 3 renders the position plain concerning the paramountcy of the disclosure obligation in par 2 concerning what is proposed to be disclosed by the defendant. Nor am I concerned by the extra proposed words of the proviso that the defendant has sought to add to par 2 of its minute. On my assessment, the par 2 concluding qualification is appropriate and unobjectionable towards a proper clarification of what is being given, against materials otherwise privileged.
More generally
29In general terms, I accept that there is some merit to adding to the preface to the orders, as the plaintiff suggests, the extra words, 'and further to the consent orders made on 25 June 2021'. That augmentation will serve as a historic reminder that some aspects of the parties' disagreements were resolved by those consent orders made at the substantive hearing between the parties at that time.
30Next, comparing rival minutes, e-folio documents 268 and 269, I observe that there appears to be no substantive disagreement over aspects of the plaintiff's chamber summons which are to be ordered as dismissed. Orders then in terms of the par 1, which is common in both minutes, can be made.
31Next, however, by reference to the plaintiff's minute, e-folio document 269, emerges another timing disagreement, over the defendant's as proposed compliance date, of 29 October 2021. For the reasons as earlier expressed towards timing, both sides can have the requested times they have asked for, in order to provide their further discovery. In that respect, the plaintiff's contrary suggestion of an earlier time of 30 September 2021, is rejected.
32Next, the plaintiff by a proposed excision to the defendant's minute (par 2), seeks to exclude the as nominated date range for the categories, namely, created in the period April 2013 to March 2016. However, it is far too late now to raise that objection. That date range was identified in the component of Annexure 1 seen in [54] of the published reasons. Any objection against the appropriateness of that date range ought to have been raised a lot earlier. I am not amenable at this late stage to granting leave for fresh arguments over that issue to be reopened by the plaintiff.
33Likewise, the plaintiff's attempted objection against words in par 2 'which are the subject of these proceedings' and so as to refer in lieu to, 'in respect of the T1 Domestic Pier and International Departures Expansion project' - is a drafting revision afterthought - which should have been raised a lot earlier. The words 'which are the subject of these proceedings' are seen as longstanding in par 2(a) within Annexure 1 extracted in [54] of the published reasons.
34As earlier indicated, I also reject the fresh plenary attack that is directed against the entirety of par 3 of the defendant's minute.
35Next, however, in terms of the aspects of the plaintiff's further and better discovery application which stand as otherwise adjourned, I am of the view that as a matter of good order all unresolved and adjourned matters should be specifically identified - effectively as residual needles in a too large haystack.
36Consequently, I propose that par 5 of the defendant's minute which currently reads 'the application is otherwise adjourned' be amended, so as to read that 'the plaintiff's application as to the matters as identified in Annexure B to these orders, is otherwise adjourned'.
37There will be an added Annexure B to the orders - which essentially picks up all the issues currently remaining as unresolved as identified in pars 28 and 29 of the defendant's proposed written submissions in relation to costs of 28 July 2021 - in case they are to be revisited.
38Necessarily, I accept that the earlier foreshadowed order as to costs of the application as being in the cause - ought be clarified so as to be made applicable only to the (many) aspects of the plaintiff's application as are dealt with to date.
39Consequently, order 6 of the defendant's proposed minute, e-folio document 268, will read:
Except with respect to the components of the plaintiff's application referred to above and which remain unresolved and the subject of adjournment for further determination is necessary, post further conferral, the parties' costs of the application be costs in the cause.
Conclusion
40Finalised orders in the above terms are appended to these reasons and will issue 24 hours subsequent to the emailed publication of these further reasons to the parties' lawyers.
IN THE SUPREME COURT OF WESTERN AUSTRALIA
APPENDIX 1
CIV/1513/2016
BETWEEN:
Built Environs WA Pty Ltd
First Plaintiff
AND
Perth Airport Pty Ltd
First Defendant
_____________________________________________________________________
ORDERS MADE BY
THE HONOURABLE JUSTICE KENNETH MARTIN
ON 5 AUGUST 2021
_____________________________________________________________________UPON application of the defendant dated 22 January 2021, as amended on 3 June 2021, AND UPON hearing from Mr D T Miller SC and Mr V N Ghosh of counsel for the defendant (by video-link) and Ms M H Hindman QC and Mr T J Porter of counsel for the plaintiff (by video-link), IT IS ORDERED THAT:
1.The plaintiff provide further and better discovery on oath and inspection, in accordance with Order 26 of the Rules of the Supreme Court:
(a) of the documents falling within the classes described at numbers 11, 15 and 17 of the attached schedule by 13 August 2021; and
(b) of the documents falling within the classes described at numbers 21, 23 and 27 of the attached schedule by 27 August 2021;
(c) of the documents falling within the classes described at numbers 8, 10 and 19 the attached schedule by 8 October 2021, with the documents to be provided in tranches by the following dates:
(i)27 August 2021; and
(ii)8 October 2021.
(d) of the documents falling within the class described at number 20 of the attached schedule by 10 December 2021, with the documents to be provided in tranches by the following dates:
(i)27 August 2021;
(ii)8 October 2021; and
(iii)10 December 2021.
2.The plaintiff pay the defendant's costs of this application, to be taxed if not agreed.
BY THE COURT
SCHEDULE
No.
Class of Document
8
All documents and communications recording and referring to productivity issues alleged to have arisen by reason of the plaintiff resequencing the works (including communications between representatives of the plaintiff and/or representatives of the plaintiff and its subcontractors) including, but not limited to the adverse impacts listed in Schedules P and Q to the SFASSOC, including:
(a) correspondence from the subcontractors referenced in Schedule R regarding the alleged inefficiencies, productivity issues and disruption on Site;
(b) delay/disruption notices or claims from subcontractors referenced in Schedule R;
(c) variation notices or claims from subcontractors referenced in Schedule R;
(d) minutes of meetings with subcontractors which record complaints made by the subcontractors regarding the alleged inefficiencies, productivity issues and disruption on Site;
(e) records demonstrating when the subcontractors referenced in Schedule R mobilised and demobilised from Site or were required to relocate within the Site, including due to unavailable work fronts and overcrowding;
(f) documents evidencing the number of resources on Site each day, the particular individuals, their trade, roles and site hours; and
(g) if not already included in the above, the missing documents referred to in the annexure to the letter from King & Wood Mallesons to Baker McKenzie dated 27 October 2020.
10
(a) [Not used];
(b) the following documents concerning the RiskCom meeting scheduled on 4 September 2012 referred to in document number BEP.007.010.5463:
(i) any notes, minutes or record of the RiskCom meeting or any other documents or communications in relation to that meeting;
(ii) any communications between representatives of the plaintiff and McConnell Dowell in relation to the RiskCom meeting; and
(iii) any communications between representatives of the plaintiff and Aveng in relation to the RiskCom meeting;
(c) [Not used]
(d) [Not used]; and
(e) any communications recording, referring to or produced as a consequence of the spreadsheet entitled ‘addendum 11 review’ (document number BEP.001.022.1493).
11
Project Monthly Report No. 17
15
Senior Project Team Meeting Minutes No. 7, 25, 26 and 29.
17
Commercial Team Meeting Minutes No. 1, 2, 3, 4, 5, 6 and 7.
19
Communications and meeting minutes between the plaintiff and representatives of Tracey Brunstrom & Hammond recording or referring to the preparation, statusing or updating of programmes for the T1 Departures Project.
20
The invoices, purchase orders and other cost or claim documents referred to in the columns titled “Order / Contract / Variation Number” and “Invoice / Claim Number” in BEP.034.002.0038 and BEP.034.002.0001 which is an extract of the plaintiff’s CHEOPS construction management software for the purposes of demonstrating the:
(i) actual costs incu
crred by the plaintiff which underlie the total ‘Average Delay Cost Per Month’ values particularised at Schedule H of the SFASSOC;(ii) the actual costs incurred by the plaintiff on the T1 Departures Project; and
(iii) the actual time related site running costs on the CLF Project from which the average daily related site running costs per month have been calculated.
21
A copy of the native version of the extracts of the plaintiff’s CHEOPS construction management software (being BEP.034.002.0038 and BEP.034.002.0001).
23
If not already produced in respect of a category above, all documents which record attendance on Site each day for both Projects, such as sign in sheets/attendance records.
27
If not already produced in respect of a category above, all payment claims, payment schedules and tax invoices for subcontractors of the Plaintiff, the costs of which form the basis or source (in whole or in part) of the Plaintiff’s claims in CIV 1513 of 2016.
IN THE SUPREME COURT OF WESTERN AUSTRALIA
APPENDIX 2
CIV/1513/2016
BETWEEN:
Built Environs WA Pty Ltd
First Plaintiff
AND
Perth Airport Pty Ltd
First Defendant
_____________________________________________________________________
ORDERS MADE BY
THE HONOURABLE JUSTICE KENNETH MARTIN
ON 5 AUGUST 2021
_____________________________________________________________________UPON application of the plaintiff dated 25 January 2021, as amended on 4 June 2021 and 21 June 2021, AND UPON hearing from Ms M H Hindman QC and Mr T J Porter of counsel for the plaintiff (by video-link) and Mr D T Miller SC and Mr V N Ghosh of counsel for the defendant (by video-link), and further to the consent orders made on 25 June 2021, IT IS ORDERED THAT:
1.Paragraphs 1(b), 1(c) (except for the redaction for privilege at page [2147]), 2(d), 2(i), 3(b), 3(c), 4(a) to (c), 4(e) (except for the redaction for privilege at page [6834] of Document PAP.504.006.6833), 4(f) to (i), 4(j)(x) and (x)(ii) to (xviii) of the plaintiff's application are dismissed.
2.In the Court's inherent jurisdiction, by 29 October 2021 (with the documents to be provided in tranches on 30 September 2021 and 29 October 2021), the defendant is to give discovery on oath, and inspection, of all documents within the following categories (and created in the period April 2013 to March 2016) that are, or have been, in the defendant's possession, custody or power:
(a) Records of communications sent or received between the defendant's solicitors and APP Corporation Pty Ltd (APP);
(b) Documents prepared by APP including notes, calculations and draft assessments;
(c) Documents passing between APP and the defendant;
(d) Documents passing between APP and Rider Levett Bucknall (RLB);
for, in respect of, or concerning APP's assessments and (or) determinations of extension of time claims, the value of variation claims, or determinations of payment claims made by the plaintiff, which are the subject of these proceedings, but such discovery is not to include such correspondence and documents that were:
(i)created or exchanged after APP had completed the relevant certification function(s); and (or)
(ii)otherwise (that is, not otherwise discoverable under this order 2) subject to 'without prejudice' privilege or legal professional privilege.
3.Subject to Order 2 above, the defendant is not required to discover or disclose any documents or correspondence prepared for the purpose of:
(a) 'without prejudice' mediations and negotiations between the plaintiff and the defendant;
(b) adjudications between the plaintiff and the defendant;
(c) anticipated and actual litigation;
(d) enabling the provision of legal advice to the defendant in connection with the matters referred to at items 3(a) to (c) above.
4.By 30 September 2021, the defendant apply, and provide discovery of copies of all relevant documents responding to, the search terms set out in Annexure A.
5.The plaintiff's application as to the matters as identified in Appendix B to these orders is otherwise adjourned.
6.Except with respect to the components of the plaintiff's application referred to in order 5 above and which remain unresolved and the subject of adjournment for further conferral, the parties' costs of the application are costs in the cause.
BY THE COURT
ANNEXURE A - ELECTRONIC SEARCH TERMS
Where a search term includes a date range (as indicated by the words "top-item-level-date"), that date range will be omitted from the search in respect of any scanned documents that do not have any Document Date (or do not have an accurate Document Date) in the Document Data.
Item Row[1] Search Term B (Resequencing) 6
4
top-level-item-date:[20130201 TO 20131101] AND "access" AND "site"
10
8
access w/100 ("loading bay" OR "loading dock" OR "service access area" OR "forward work*" OR "international terminal building" OR "international departures expansion building" OR "gridline" OR "mezzanine structural work" OR "superstructure work" OR "structural work" OR "service corridor")
11 9 top-level-item-date:[20130201 TO 20131101] AND ("access" w/100 ("spotless services" OR "custom*" OR "skystar" OR "AMSA" OR "Smith- Heimann" OR "Toll Dnata" OR "BCS" OR "Singapore Airlines" OR "Emirates" OR "ISS security" OR "Smarte Carte" OR "Hutchison")) 14
12
top-level-item-date:[20130320 TO 20130901] AND (("road" OR "route") W/100 (("L20" OR "L21" OR "L22" OR "L23") OR ("pier" and "access")))
D (Structural Steel)
20 2 ((("For Construction") OR (IFC)) AND (Drawings OR Specifications OR
("Spec*")) AND (("missing w/5 detail*") OR ("missing w/5 information") OR (deficien*) OR (adequa*) OR ("omit* w/5 detail*") OR ("omit* w/5 information") OR omission*))
21
((draw* OR "Design" OR "Deliverables") AND ("Woods Bagot" OR WB OR Arup OR APP OR Aurecon)) AND (("missing w/5 detail*") OR ("missing w/5 information") OR (deficien*) OR (adequa*) OR ("omit* w/5 detail*") OR ("omit* w/5 information") OR (omission*))
E (Addn Façade Work) 29 2 top-level-item-date:[20120701 TO 20160822] AND (("primary" OR
"secondary" OR "facade") AND "steel")
F2 (EOT-057) 46 10 top-level-item-date:[20131105 TO 20140714] AND
("forward works" OR "enabling works" OR "FW") AND ("clash*" OR "test*" OR "remov*" OR "re-rout*" OR "rerout*")F24 (EOT-025)
110
2
top-level-item-date: [20130402 TO 20141211] AND ("decant*" OR "handover*" or "vacat*") AND "tenan*"
F26 (EOT-100) 116 3 top-level-item-date: [20130726 TO 20140409] AND Smith* AND ("cabl*"
OR "network*")
F33 (EOT-370 & EOT-375)
143
2
"t3" AND "line" AND "defect*"
[1]This is a reference to the row of the relevant sheet of the Additional Key Word Search Terms Excel workbooks dated 28 October 2020, 19 January 2021, 1 April 2021 and 3 June 2021.
ANNEXURE B
From par’s 28 and 29 of the plaintiff’s further written submissions of 28 July 2021
‘1. The following aspects of BEPL's application are adjourned under paragraph 4 of BEPL's minute (paragraph 5 of PAPL's minute): paragraphs 1(a), 1(c) (but only the redaction for privilege at page [2147]), 2(c), 2(e) to (h), 3(a), 3(d), 3(e), 4(e) (but only the redaction for privilege at page [6834] of Document PAP.504.006.6833), 4(j)(ii), 4(j)(xix), 4(j)(xx) and 4(j)(xxi) and 6 (but only the extent the search terms in Schedule 2 to BEPL's application, or revised versions of those search terms, have not been resolved between the parties)
At the hearing on 24 June 2021, the Court made an order for further conferral and to preserve the opportunity for BEPL to apply in respect of the missing documents identified under paragraphs 2 and 3 of its minute provided to the Court on 24 June 2021 (which correspond to paragraphs 2(e) to (h) of BEPL's application) (Ts 643) . . .’
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DM
Research Associate to the Honourable Justice Martin
6 AUGUST 2021
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