City of Bayswater v Viva Energy Australia Pty Ltd [No 2]

[2022] WASC 384

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   CITY OF BAYSWATER -v- VIVA ENERGY AUSTRALIA PTY LTD [No 2] [2022] WASC 384

CORAM:   ACTING MASTER STRK

HEARD:   23 JUNE 2021, WITH ADDITIONAL SUBMISSIONS FILED ON 25 JUNE 2021 AND 29 JUNE 2021

DELIVERED          :   15 NOVEMBER 2022

FILE NO/S:   CIV 2262 of 2018

BETWEEN:   CITY OF BAYSWATER

Plaintiff

AND

VIVA ENERGY AUSTRALIA PTY LTD

Defendant

Catchwords:

Practice and procedure - Discovery - Applications for further and better discovery - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 26 r 6(1)

Result:

Plaintiff's application refused
Defendant's application granted

Category:    B

Representation:

Counsel:

Plaintiff	:	DW McLeod
Defendant	:	TJ Porter

Solicitors:

Plaintiff	:	McLeods Lawyers
Defendant	:	HWL Ebsworth Lawyers

Case(s) referred to in decision(s):

Absolute Analogue Inc v Sundance Resources Ltd [2008] WASC 259

Brewer v Colonial Portfolio Services Ltd [2007] WASC 22

Chvojka v Lockwood [2019] WASC 440

Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337

Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501

Lanco Resources Australia Pty Ltd v Griffin Energy Group Pty Ltd [2016] WASC 322

Leighton Contractors v Public Transport Authority (WA) [2007] WASC 65

Old Papa's Franchise Systems Pty Ltd v Camisa Nominees Pty Ltd [2003] WASCA 11

Perpetual Trustees Co Ltd v Burniston [2012] WASC 26

Rafferty v Amaca Pty Ltd [2017] WASC 18

Roe v The State of Western Australia [2013] WASC 130

Sabre Corporation Pty Ltd v Russ Kalvin's Hair Care Co (1993) 46 FCR 428

Singh v Friedman [2013] WASC 78

SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd [No 2] [2006] FCA 931; (2006) 155 FCR 150

Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd [2010] WASC 218

Table of Contents

Introduction

Background

The pleadings

Relief sought by the City

Discovery given

Applicable principles

The City's application

The affidavits filed on behalf of the City

Scope of the City's application

Relevance

Existence

Discretion

Disposition

Conclusion

Viva Energy's application

Existence

Discretion

Disposition

Conclusion and orders

Sch A – sch A to the City's application (as amended at the hearing)

Sch B – sch A to Viva Energy's application

ACTING MASTER STRK:

Introduction

1. This proceeding was commenced by the City of Bayswater against Viva Energy Australia Pty Ltd by a writ of summons filed on 19 July 2018 and concerns the construction of a slip road on the intersection of Walter Road and Russell Street in Morley.  On 11 December 2019, the parties were ordered to give discovery on affidavit.  The parties engaged in written conferral with respect to the adequacy of discovery provided, but both parties remained unsatisfied that the other had given proper discovery.[1]  These reasons concern the applications made by the City and by Viva Energy for further and better discovery.

   [1] See, for example, affidavit of I Vasic sworn 31 March 2021, IVI5, IV18; affidavit of DW McLeod sworn 26 March 2021, DM26.

2. The City applied by chamber summons for orders that Viva Energy give further and better discovery as to the documents in the City's request for further and better discovery dated 12 June 2020 and the further request dated 21 August 2020, and attached to the summons as sch A and sch B respectively, a copy of each request.  At the hearing of the application, counsel confirmed that the City no longer pressed its application in relation to the further request as particularised in sch B.[2]  As to sch A, at the hearing of the application counsel for the City further narrowed the scope of the application through amendment to sch A.  Schedule A to the City's summons is reproduced at sch A to these reasons, marked up to reflect the scope of the application pressed at the hearing.

   [2] ts 5 - 6 (23 June 2021).

3. Viva Energy filed an application by letter seeking orders that the City give further and better discovery.  By the application Viva Energy sought that the City serve by way of further and better discovery a list verified by affidavit identifying all of the documents within the categories set out in sch A to Viva Energy's letter which are or have been in the City's possession, custody or power.  Schedule A to Viva Energy's application is reproduced at sch B to these reasons.

4. For the reasons set out below I have concluded that it is appropriate to refuse the City's application and to grant Viva Energy's application for further and better discovery.

Background

1. Given the nature of the applications pressed, it is necessary to set out below an overview of the claims made by the City against Viva Energy in this proceeding and the relief sought, and Viva Energy's pleaded answer to the same.  I also describe the discovery given by each of the parties prior to the hearing of the application.

The pleadings

1. From the parties' pleadings, I understand as follows.  (Unless otherwise stated, I understand the matters summarised below to be uncontentious).

2. The parties proceed on the basis that:

   (a)the City is a body corporate constituted under s 2.5 of the Local Government Act 1995 (WA);[3] and

   (b)as at 15 January 1997, The Shell Company of Australia Ltd was a registered company, which on 28 July 2014 changed its name to Viva Energy Australia Ltd.  On 24 July 2015, Viva Energy converted to its present status as a proprietary company.[4]

   [3] Amended statement of claim par 1; defence to amended statement of claim par 1.

   [4] Amended statement of claim par 2; defence to amended statement of claim par 2.

3. Between 1 November 1994 and 11 February 1997, ACN 065 643 343 Pty Ltd was the registered proprietor of Lot 1146 on Plan 3401 the subject of Certificate of Title Volume 2019 Folio 856 (the Subject Land), situated at the corner of Walter Road and Russell Street, Morley.[5] ACN 065 643 343 Pty Ltd is now known as Hungry Jacks Australia Pty Ltd, and is referred to as the Owner in the parties' pleadings and in these reasons. In February 1997, the Owner transferred the Subject Land to a third party,[6] and I understand that it has subsequently been on‑sold on a number of occasions.[7]  In these reasons I refer to the current owner of the Subject Land as the Current Owner.

   [5] Amended statement of claim par 3; defence to amended statement of claim par 3.

   [6] Defence to amended statement of claim par 13(d); reply par 8(c).

   [7] Affidavit of I Vasic sworn 31 March 2021 par 13.

4. In October 1995, an application for approval to commence development was submitted on behalf of the Owner to the City for a proposed development on the Subject Land, described as 'a new retail/non‑retail development comprising service station, fast food outlet, TAB, consulting rooms and a toy department store'.[8]  The application, in a modified form, was approved by the Council of the City on 28 November 1995.[9]  The development approval was conveyed to the Owner by letter dated 29 November 1995, and was subject to conditions including condition 34 (the proper construction of which remains in issue between the parties), which stated:[10]

   34.Land required for road widening to contain a slip lane abutting Walter Road to be ceded free of cost to the City of Bayswater and the slip lane to be extended eastwards to the Council car park area and the full length of the slip lane being constructed at the developer's cost to the satisfaction of the Director of Technical Services.

   [8] Amended statement of claim par 4; defence to amended statement of claim par 4.

   [9] Amended statement of claim par 5; defence to amended statement of claim par 5(a); reply par 1(a).

   [10] Amended statement of claim par 5; defence to amended statement of claim par 5(b); reply par 1(b).

5. On 30 January 1996, the Council of the City modified the development approval.[11]

   [11] Amended statement of claim par 5; defence to amended statement of claim par 5(c); reply par 1(c).

6. It is common ground between the parties that no portion of the Subject Land had, at the time of filing their respective pleadings, been ceded as contemplated by condition 34, and that two Telstra communication pits needed to be moved or relocated before the slip lane could be constructed.[12]  It is also common ground that neither Viva Energy nor the Owner has ever owned the communication pits, or controlled the owner of the communication pits.[13]  (While not pleaded, I understand that the ceding of part of the Subject Land occurred in June 2021).[14]

   [12] Amended statement of claim par 7; defence to amended statement of claim par 7; reply par 3.

   [13] Defence to amended statement of claim par 5(e)(ii); reply par 1(e).

   [14] Affidavit of DH Pearson sworn 21 June 2021 pars 2 - 6, DP1; the City's supplementary submissions in opposition to Viva Energy's application par 6(a); Viva Energy's supplementary submissions in support of its application par 5.

7. On 12 December 1996, the Owner and Viva Energy entered into an agreement for lease of the Subject Land.[15]  The nature, terms and effect of this agreement are matters in issue between the parties.

   [15] Amended statement of claim par 6; defence to amended statement of claim par 6(a)(i); reply par 2.

8. Viva Energy also pleads that on 5 December 1996, the Owner, Viva Energy and Competitive Foods Ltd entered into a construction agreement, a plea to which the City joins issue.[16]

   [16] Defence to amended statement of claim par 6(a)(ii); reply par 2.

9. On 15 January 1997, Viva Energy, the City and the Owner executed a deed (the 1997 Deed).  A copy of the 1997 Deed was attached to the affidavit of Denis William McLeod, partner of the firm McLeods Lawyers and solicitor for the City, sworn on 26 March 2021 and marked 'DM1'.

10. The City pleads that Recital B of the 1997 Deed stated that Viva Energy would construct the slip lane in accordance with plans and specifications approved by the City, a copy of which was annexure B to the 1997 Deed.[17]

    [17] Amended statement of claim par 8.

11. It is common ground between the parties that the plans and specifications would not necessarily comply forever with the laws and/or standards governing the design and construction of slip lanes at the relevant location.[18]  However, while the parties agree that Recital B must be read in the context of the 1997 Deed as a whole,[19] the effect of Recital B remains in issue between the parties.  Indeed, the proper construction of the 1997 Deed is in issue in this proceeding.

    [18] Defence to amended statement of claim par 5(e)(iii); reply par 1(e).

    [19] Defence to amended statement of claim par 8(b); reply par 4.

12. The City pleads that cl 1 of the 1997 Deed provided that in consideration of Viva Energy agreeing to cause the communication pits to be moved and the slip lane to be constructed, the City agreed to issue a classification certificate to Viva Energy.[20]

    [20] Amended statement of claim par 9.

13. In its defence, Viva Energy pleads that on its proper construction, in the context of the City's modification of its approval on 30 January 1996, and the reading of condition 34 in the context of, among other things, the development approval as a whole:[21]

    (a)cl 1 of the 1997 Deed provided that in consideration of Viva Energy executing the 1997 Deed and agreeing to cause the communication pits to be moved and the slip lane to be constructed, the City agreed to issue a classification certificate to Viva Energy in respect of the construction of buildings on the Subject Land by Viva Energy;

    (b)in relation to the moving of the communication pits, the 1997 Deed obliged Viva Energy only to take no more than all reasonable steps to procure the owner of the communication pits to move them;

    (c)the 1997 Deed did not and does not oblige Viva Energy to construct the slip lane unless and until the communication pits had been moved in the manner referred to in the 1997 Deed; and

    (d)further or alternatively, any extant obligation Viva Energy may have had from time to time to construct the slip lane would become spent if and when the plans and specifications referred to in par 8 of the amended statement of claim (which I understood to be a reference to the plans and specifications approved by the City, a copy of which was annexure B to the 1997 Deed referred to at [14] and [15] above) no longer complied with the laws and standards governing the design and construction of slip lanes.

    [21] Defence to amended statement of claim par 9(a).

14. The City pleads that in breach of its obligation under cl 1 of the 1997 Deed, Viva Energy has never caused, or taken steps to cause, the communication pits to be moved,[22] and joins issue with the position advanced by Viva Energy as summarised at [18(a) - (d)] above. However, it is common ground that by cl 2 of the 1997 Deed, Viva Energy agreed to construct the slip lane within 60 days following the relocation of the communication pits; and the communication pits have never been moved.[23]

    [22] Amended statement of claim par 9; reply par 5(b).

    [23] Amended statement of claim par 10; defence to amended statement of claim par 10; reply par 6.

15. The City issued a classification certificate to Viva Energy on 24 January 1997,[24] which was after a service station had been constructed on the Subject Land.[25]

    [24] Amended statement of claim par 11; defence to amended statement of claim par 11.

    [25] Amended statement of claim par 12; defence to amended statement of claim par 12; reply par 7.

16. It is common ground that Viva Energy has not constructed the slip lane.[26]

    [26] Amended statement of claim par 13; defence to amended statement of claim par 13(a).

17. The City pleads that in breach of its agreement in cl 1 and cl 2 of the 1997 Deed, Viva Energy has failed to carry out the slip lane works, notwithstanding numerous requests made on behalf of the City to do so, and Viva Energy's acknowledgements and affirmations of its obligation to do so.[27]  The City attached as a schedule to its amended statement of claim by way of particulars a list of correspondence between the parties and their respective legal representatives said to be the City's requests and Viva Energy's acknowledgements and affirmations of its obligations under the 1997 Deed.

    [27] Amended statement of claim par 13; reply par 8(a).

18. As to the documents listed in the schedule to the amended statement of claim, Viva Energy says that on their proper construction:[28]

    (a)the letter from Downings Legal on behalf of Viva Energy dated 10 November 2008, alternatively the letter from McLeods Lawyers on behalf of the City dated 24 April 2009, indicates that by the date of the relevant letter a dispute had arisen between the City and Viva Energy concerning Viva Energy's obligations under the 1997 Deed; and

    (b)in the context of that dispute, all, alternatively the vast majority, of the correspondence listed in the schedule and subsequent to the relevant letter is properly to be characterised as 'without prejudice' correspondence, being a genuine attempt by the author of the relevant correspondence to avoid litigation over the dispute or to settle it, alternatively a communication reasonably incidental to such an attempt.

    [28] Defence to amended statement of claim par 13(b).

19. Viva Energy also pleads that the plans and specifications referenced in the 1997 Deed are no longer compliant with the laws and/or standards governing the design and construction of slip lanes at the relevant location.[29]  The City does not admit the same and pleads that there have been no significant changes which affect the obligation of Viva Energy to construct the slip lane 'to the satisfaction of the Director of Technical Services'.[30]

    [29] Defence to amended statement of claim par 13(c).

    [30] Reply par 8(b).

20. It is common ground that on 14 August 2018, HWL Ebsworth on behalf of Viva Energy wrote to McLeods Lawyers on behalf of the City.  The effect of the letter is in dispute between the parties.  The City pleads that by the letter, in breach of its agreement in cl 1 and cl 2 of the 1997 Deed, Viva Energy informed the City that it did not intend to carry out the slip lane works.[31]  While Viva Energy admits that the letter was sent, it denies the City's plea to its effect, intending to refer at trial to the terms and effect of the letter.[32]

    [31] Amended statement of claim par 14.

    [32] Defence to amended statement of claim par 14.

21. The City pleads that by reason of Viva Energy's breach of its agreement in cl 1 and cl 2 of the 1997 Deed, the City will be obliged to have the slip lane works carried out at the City's expense, and will thereby suffer damage.[33]  In response, Viva Energy denies that the City is now obliged to construct any slip lane at all at or near the place where the slip lane would have been located; and also denies that the City has incurred any loss, taking into account the following matters:[34]

    (a)the communication pits have not been moved;

    (b)the slip lane has not been constructed;

    (c)the non-existence of the slip lane has caused the City no loss of income;

    (d)if the slip lane had been constructed in or about 1997 or 1998, then the City would have been the owner of the slip lane, and would have needed to refurbish or reconstruct the slip lane at least once prior to the date of any finding in this action of breach of the 1997 Deed by Viva Energy;

    (e)any such refurbishment or reconstruction would have had to be carried out in accordance with plans and specifications different from the ones referred to in par 8 of the amended statement of claim (Modified Plans and Specifications), to take into account amendments to the laws and/or standards governing the design and construction of slip lanes at the relevant location;

    (f)as the slip lane has not been constructed, the City has been saved the cost of any such refurbishment or reconstruction;

    (g)any construction of a slip lane at the time of, or after, the date of Viva Energy's defence at or near what would have been the site of the slip lane would have to be done in accordance with Modified Plans and Specifications, and would be no more costly to the City than the refurbishment or reconstruction of the slip lane that the City has been saved by the non‑existence of the slip lane.

    [33] Amended statement of claim par 15.

    [34] Defence to amended statement of claim par 15.

22. Further or alternatively, Viva Energy pleads that if, which is denied, the City is entitled to any damages in this action, the assessment of the quantum of those damages must take into account the amount the City has been saved by not having to refurbish or reconstruct the (non‑existent) slip lane at any time prior to the date of the assessment.[35]

    [35] Defence to amended statement of claim par 16.

23. In further answer to the whole of the City's claim as pleaded in the amended statement of claim, Viva Energy pleads that if:[36]

    [36] Defence to amended statement of claim par 17(a).

    (a)which is not admitted, Viva Energy was obliged in contract and/or by the 1997 Deed to take all reasonable steps to procure the owner of the communication pits to move or relocate them; alternatively

    (b)which is denied, Viva Energy was obliged in contract or by the 1997 Deed to ensure that the communication pits were moved or relocated, notwithstanding the matters referred to in the matters pleaded at par 5(d)(ii) of the defence; alternatively

    (c)which is denied, Viva Energy has ever been obliged in contract or by the 1997 Deed to construct the slip lane (despite the fact that the communication pits have never been moved),

    (Obligation), then, on the proper construction of the 1997 Deed:

    (1)Viva Energy was obliged to fulfil the Obligation within a reasonable time after the 1997 Deed came into effect;

    (2)the Obligation, if not fulfilled by the expiry of that reasonable time after the 1997 Deed came into effect, was finally breached;

    (3)a reasonable time to fulfil the Obligation after the 1997 Deed came into effect had expired by 18 July 1998; and

    (4)in the premises, the sending of the letter in August 2018 was incapable of being a breach of the Obligation.

1. In this regard, Viva Energy says that the City did not issue this writ of summons in this action until 19 July 2018.[37]

   [37] Defence to amended statement of claim par 17(b).

2. Viva Energy also pleads that if, which is not admitted, the City has ever had a cause of action against Viva Energy, then the cause of action is and/or was no more than a cause of action for breach of the Obligation.[38]

   [38] Defence to amended statement of claim par 17(c).

3. Further, Viva Energy pleads that in the premises, if, which is not admitted, the City ever had any cause of action against Viva Energy for breach of contract or of the 1997 Deed, then that cause of action had become statute barred by the time this action was commenced by operation of the Limitation Act 1935 (WA).[39]

   [39] Defence to amended statement of claim par 17(d).

4. In reply, the City denies that the action is limitation barred and pleads that:[40]

   (a)by reason of the assurances and acknowledgements contained in correspondence between the parties on which the City relied (and forbore from commencing proceedings), Viva Energy is estopped from denying its liability to construct the slip lane by the effluxion of time; and

   (b)the limitation period under the Limitation Act did not begin to run until, at the earliest, 3 August 2017, being the time at which there was a clear breach of the obligation in the 1997 Deed.

Relief sought by the City

[40] Reply par 9.  See also ts 19 (23 June 2021).

1. In its amended statement of claim, the City's prayer for relief is cast as follows:

   (a)A declaration that the Defendant is in breach of its agreement to carry out the Slip Lane Works.

   (b)Damages (to be assessed) being the cost of completing, or causing to be completed, the Slip Lane Works.

   (c)Interest on the costs of the Slip Lane Works from each date that those costs are incurred until the date of judgment.

   (d)Costs.

2. Viva Energy denies that the City is entitled to the relief claimed on the basis set out in its defence to the City's amended statement of claim, summarised above.

Discovery given

1. On 11 December 2019, the parties were ordered to give discovery on affidavit.  The City gave discovery by way of:

   (a)documents and a list annexed to a letter from McLeods Lawyers to HWL Ebsworth dated 28 May 2019;[41]

   (b)the affidavit of discovery of Helen Sarah Smith, the manager development approvals of the City, sworn on 28 January 2020;

   (c)an informal supplementary list of documents dated 9 March 2020;[42]

   (d)a document attached to an email from the City's representatives to HWL Ebsworth dated 11 May 2020;[43] and

   (e)the affidavit of further discovery sworn by Ms Smith on 24 September 2020.

   [41] Affidavit of I Vasic sworn 31 March 2021, IV10.

   [42] Attached to an email communication sent from McLeods Lawyers to HWL Ebsworth on 10 March 2020: see the affidavit of I Vasic sworn 31 March 2021, IV11 (page 92).

   [43] Affidavit of I Vasic sworn 31 March 2021, IV12.

2. Viva Energy gave discovery by two affidavits sworn by Cesarino Piotti on 13 March 2020 and 13 December 2020, respectively.

Applicable principles

1. Order 26 of the Rules of the Supreme Court 1971 (WA) (RSC) does not expressly deal with insufficient discovery, providing only for two situations: the first being the giving of a notice followed by an application pursuant to the RSC O 26 r 2 for an order for discovery, and the second being an application pursuant to the RSC O 26 r 6 for discovery of particular documents.[44] The court has inherent power to order further discovery and the RSC O 26 r 6 enlarges that power.

   [44] Chvojka v Lockwood [2019] WASC 440 [5] - [6].

2. In determining whether to make an order for further discovery, the court must be fairly certain that there are other relevant documents which ought to have been discovered.  Murphy JA summarised the relevant principles in Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd [2010] WASC 218 as follows:

   [3]First, the court has, in its inherent jurisdiction, the power to order further and better discovery.

   [4]Secondly, the court's inherent jurisdiction is exercised according to the former practice of the Court of Chancery. That practice was that an affidavit of documents by a party was conclusive as to the relevant documents in the possession, custody or power of that party unless the insufficiency of the discovery appeared from an admission in the pleadings by the party from whom discovery was sought, or from the affidavit of documents itself, or from the documents referred to in the affidavit, or from any source that constituted an admission by that party of a discoverable document, or where the party had excluded documents under a misconception of the case. Insufficiency could not, however, be demonstrated by a contentious affidavit from the party seeking to challenge the discovery. Thirdly, O 26 r 6 and its predecessors were introduced to relax the Chancery rule, and to allow a challenge to discovery based on a contentious affidavit seeking discovery of particular documents, or a particular class of documents.

   [5]Fourthly, the introduction of O 26 r 6 enlarged, but did not modify, the court's inherent jurisdiction. Thus, if a party applies pursuant to both O 26 r 6 and the court's inherent jurisdiction, but the O 26 r 6 application is for some reason irregular, providing that the criteria for the exercise of the inherent jurisdiction are satisfied, an order may be made under the inherent jurisdiction for discovery, including for a particular class of documents.

   [6]Fifthly, under the inherent jurisdiction, where the insufficiency of a party's discovery appears from the party's pleadings, or its affidavit of documents, or the documents referred to therein, or any source constituting an admission by that party of a discoverable document, the test is whether the court has reasonable grounds for being fairly certain that there are other relevant documents which ought to have been disclosed. That is also the test that is to be applied under O 26 r 6.

   [7]Sixthly, under the inherent jurisdiction, it is not necessary to infer the existence of a particular document to ground an order for further and better discovery, where it appears that a party has excluded documents under a misconception of the case.

   [8]Seventhly, although the misconception of the discovering party is relevant to the exercise of the court's inherent jurisdiction, it is also, in my view, a factor which may assist in the drawing of inferences for the purposes of determining an application under O 26 r 6. (citations omitted)

3. In short, whichever source of power is relied upon, in order to succeed on its application:[45]

   (1)the court must have reasonable grounds for being fairly certain that the documents sought are (or were) in existence;

   (2)the documents sought must be relevant; and

   (3)the documents ought to have been disclosed. As to this final point, there need be reasonable grounds to believe that the documents are in the possession, custody or power of the party against whom discovery is sought. If the RSC O 26 r 6 is relied upon, it is sufficient that the applicant shows that there are reasonable grounds to believe that the documents were once in the possession, custody or power of the other party.

   [45] Perpetual Trustees Co Ltd v Burniston [2012] WASC 26 [29] ‑ [32].

4. As explained by Murphy JA in Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd, of the sources of power for an order for further and better discovery, the inherent power contains additional limitations.  In particular, an affidavit of discovery is conclusive as to the sufficiency of discovery of the documents in the possession, custody or power of the party from whom discovery was sought unless:[46]

   (a)an insufficiency appears from the pleadings;

   (b)an insufficiency appears from the affidavit itself;

   (c)an insufficiency appears from the documents themselves which are referred to in the affidavit or subsequently disclosed by that party as relevant;

   (d)an insufficiency appears as a result of an admission by that party; or

   (e)an insufficiency appears because that party had excluded documents by a misapprehension of its own case.

   [46] Perpetual Trustees Co Ltd v Burniston [33].

5. Finally, it is now well-established that the court's discretionary power to order discovery is to be exercised having regard to the case management principles in the RSC O 1 r 4A and r 4B.[47]  This requires the court to consider the timely and cost-effective disposal of litigation, including whether the discovery is necessary for fairly disposing of the proceeding.  The notion of proportionality is also relevant, which requires the court to assess whether the forensic benefit to be derived by any interlocutory process (including discovery) is proportionate to the cost and delay which will flow from undertaking the process, having regard to the value, importance and complexity of the subject matter in dispute and the parties' financial position.

   [47] Singh v Friedman [2013] WASC 78 [3] ‑ [4]; Roe v The State of Western Australia [2013] WASC 130 [10] ‑ [13]; Lanco Resources Australia Pty Ltd v Griffin Energy Group Pty Ltd [2016] WASC 322 [16] ‑ [18].

The City's application

1. The City's application for further and better discovery as particularised in sch A was made pursuant to the RSC O 26 r 1 and r 2. At the hearing of the application, counsel for the City acknowledged that the court's power to order further and better discovery does not derive from either of r 1 or r 2. Despite the City's error, the City's application was heard on the basis that it was made pursuant to the RSC O 26 r 6 or r 7, alternatively pursuant to the court's inherent jurisdiction.[48]

   [48] ts 38 (23 June 2023).

2. In support of its application the City filed the affidavit of Mr McLeod sworn on 26 March 2021, and the affidavit of Douglas Haig Pearson, the Director Works and Infrastructure of the City, sworn on 21 June 2021.  The City also relied upon a written outline of submissions in support of its application filed on 26 March 2021.  In opposition to the City's application Viva Energy filed the affidavit of Ivana Vasic, associate of the firm HWL Ebsworth and solicitor for Viva Energy, sworn on 20 April 2021, together with a written outline of submissions filed on 20 April 2021.

The affidavits filed on behalf of the City

1. Counsel for Viva Energy raised two concerns as to the affidavits of Mr McLeod sworn in relation to the applications, being the affidavit of Mr McLeod sworn on 26 March 2021 in support of the City's application (referred to above), and the affidavit of Mr McLeod sworn on 18 May 2021 in opposition to Viva Energy's application.

2. The first concern related to 10 attachments to the affidavit of Mr McLeod sworn on 26 March 2021, which Viva Energy assert are subject to without prejudice privilege.[49]  I understood the context in which the privilege claim arose to be as follows.

   [49] ts 9, 39 (23 June 2021); Viva Energy's submissions in opposition to the City's application pars 5 ‑ 14; affidavit of DW McLeod sworn 26 March 2021, DM16 - DM25.

3. At par 13 of its amended statement of claim, the City pleads that Viva Energy made various 'acknowledgements and affirmations of its obligations' to carry out construction of the slip lane.  By way of particulars to this plea, the City listed 55 documents in a schedule attached to the amended statement of claim.[50]

   [50] As described at [22] above.

4. Viva Energy pleads at par 13(b) of its defence to the amended statement of claim that by correspondence between the parties on 10 November 2008, alternatively 24 April 2009,[51] a dispute had arisen between them concerning the City's obligations under the 1997 Deed and therefore all, alternatively the vast majority, of the correspondence listed in the schedule to the amended statement of claim is properly characterised as being without prejudice correspondence.[52]

   [51] The correspondence between the parties on 10 November 2008 and 24 April 2009 were attached to the affidavit of I Vasic sworn 20 April 2021 and marked IV26 and IV27, respectively.

   [52] As described at [23] above.

5. The question of whether the 55 documents identified in the schedule are properly characterised as being without prejudice correspondence had not been the subject of any application or otherwise determined prior to the hearing of the applications for further and better discovery.  Despite this, 10 of the 55 communications listed in the schedule to the amended statement of claim had been annexed to Mr McLeod's affidavit sworn on 26 March 2021.

6. Counsel for Viva Energy submitted that for the purposes of the City's application, the issue of whether the 10 attachments are privileged communications need not be decided now, as the City's application ought be determined by reference to the City's pleaded case (and not the correspondence identified by the City by way of particulars to that pleaded case).  In contrast, counsel for the City suggested that the court make a 'preliminary determination on the question of privilege'.[53]  Counsel for the City did not expand upon what was meant by a 'preliminary determination' in this context.

   [53] ts 40 (23 June 2021).

7. When asked how the 10 documents in question informed the City's application, counsel for the City proffered the following explanation:[54]

   Well, the statement of claim in the - paragraph 13, pleads that the breach of its agreement in clauses 1 and 2 of the deed:

   … the Defendant has failed to carry out the Slip Lane Works, notwithstanding numerous requests made by and on behalf of the Plaintiff to do so, and the Defendant's acknowledgments and affirmations of its obligation to do so.

   Now, it's our case that the documents in the schedule and especially those which are marked with an asterisk contain acknowledgments and affirmations of the defendant's obligation to construction the slip lane and to cause the relocation of the Telstra Communication pits.  The documents that are in the schedule disclose that and we're asking for further and better discovery to ascertain whether or not there are further documents which in a similar way provide acknowledgment and affirmation of the obligation of the defendant to construct the slip lane and relocate the communication pits.  And that they be acknowledgments and affirmations of its obligation well after the alleged dispute date[.]

   [54] ts 42 (23 June 2021).

8. The effect of counsel's further submissions was that the content of the documents listed in the schedule to the amended statement of claim reveal that the parties were not in dispute, and therefore the documents cannot be privileged.[55]  In written submissions, counsel referred to Viva Energy's plea at par 13(b)(ii) of its defence, and submitted that for the purpose of dealing with that issue, it is further necessary for the City to have discovery of communications between Viva Energy and its various consultants, particularly in the period from 10 November 2008.[56]

   [55] ts 42 ‑ 45 (23 June 2021).

   [56] The City's submissions in support of its application par 12.

9. Having heard counsel for the parties, I indicated that I would not be prepared to make a 'preliminary determination' as to whether 10 of the documents listed in the schedule to the amended statement of claim were privileged communications.  Only 10 of the 55 communications listed in the schedule had been annexed to Mr McLeod's affidavit.  It was not appropriate to attempt to determine whether the 10 communications were part of a genuine attempt to settle a dispute,[57] without evidence as to the context in which the communications were made.  I was particularly concerned that the context may be informed by the other 45 documents listed in the schedule, and those documents were not before me.

   [57] Old Papa's Franchise Systems Pty Ltd v Camisa Nominees Pty Ltd [2003] WASCA 11 [91].

10. In the circumstances, I considered it appropriate to determine the City's application by reference to the pleadings, rather than the 10 documents which were promoted for context so as to better understand the City's position.[58]  The 10 documents were not read as part of Mr McLeod's affidavit of 26 March 2021.

    [58] ts 45 (23 June 2021).

11. The second concern raised as to the affidavits sworn by Mr McLeod was that the affidavits contained inadmissible submission and opinion.  In this regard, counsel for Viva Energy indicated that provided that, in the determination of the applications, the relevance of any matter was determined by reference to the pleadings and not to the unfounded opinions expressed by Mr McLeod as to relevance or otherwise, counsel was content for Mr McLeod's evidence to be read.[59]  I proceeded on that basis.

Scope of the City's application

[59] ts 10 (23 June 2021).

1. By its application the City pressed for an order that Viva Energy file and serve a list of documents not already discovered by Viva Energy, verified by affidavit in respect of eight categories of documents created in the period February 1995 to July 2018.

2. As to the appropriateness of the period, counsel for the City informed the court that 1995 had been selected because that was when final preparations were made for the application for development approval; and the end date was selected because that was the time the City contends the solicitors for Viva Energy communicated to the City that they were not going to commit to further discussions in regard to the performance of Viva Energy's obligation under the 1997 Deed.[60]  As to the period selected, I note that the commencement date is somewhat proximate to the City's plea at par 4 of the amended statement of claim that on 10 October 1995 an application for approval to commence development was submitted on behalf of the Owner to the City; and the end date is proximate to the City's plea at par 14 that by its solicitor's letter dated 14 August 2018, Viva Energy informed the City that it did not intend to carry out the construction of the slip lane.

   [60] ts 3 (23 June 2021).

3. As to the eight categories of documents, as noted above, the scope of the application as it pertained to categories one, two, three and five in sch A to the summons was amended at the hearing,[61] and in determining the application I had regard to the narrowed scope.

Relevance

The City's position

[61] ts 5 - 6 (23 June 2021).

1. In order for the City to succeed on its application, the documents it sought be discovered must be relevant.  At pars 6 to 12 of the submissions made in support of the City's application, the City addressed the relevance of all categories pressed by its application.

2. On behalf of the City it was submitted that there were two broad issues arising out of Viva Energy's defence which resulted 'in a concern by [the City] to obtain full discovery of documents involving communications between [Viva Energy] and its various consultants engaged in connection with … the plans and specifications for, and the proposal for contribution of the Slip Lane, and [Viva Energy's] arrangements for the moving of the Communication Pits'.[62]

Non-compliance of the plans and specifications for the slip lane with the relevant laws and standards

[62] The City's submissions in support of its application par 6.

1. The first broad issue was described by the City as the 'non-compliance of the plans and specifications for the slip lane with the relevant laws and standards'.  As to the first broad issue, the City referred to the following pleas:[63]

   (a)Viva Energy's plea at pars 15(b)(v) and 15(b)(vii) of its defence that the construction of the slip lane would have to be done in accordance with 'Modified Plans and Specifications', and would be done at a certain cost.

   In this regard, the City complained that no details, or inadequate detail of the allegedly required modifications to the plans and specifications were provided in the defence, or the documents discovered by Viva Energy.

   The City said that it reasonably assumed that the nature of the allegedly required modifications to the plans and specifications would be apparent from communications between Viva Energy and its consultants engaged to deal with construction of the slip lane and the moving of the communication pits.

   (b)Viva Energy's plea at pars 9(a)(iv) and 13(c) of its defence that the plans and specifications for the slip lane no longer comply with the laws and/or standards governing the design and construction of the slip lanes at the relevant location.

   In this regard, the City said that it reasonably assumed that communications between Viva Energy and its consultants would elaborate on the reasons why and the extent to which the plans and specifications for the slip lane no longer comply with the relevant laws and standards.

Viva Energy's limitation plea and the City's estoppel plea

[63] The City's submissions in support of its application pars 7 - 8.

1. The second broad issue was described by the City as 'the limitation defence'.[64]  It was the City's position that all of the documents sought by way of further and better discovery were also relevant to the limitation defence pleaded on behalf of Viva Energy.  As to the second broad issue, the City referred to:

   (a)its plea at par 14 of the amended statement of claim that Viva Energy by its solicitors' letter dated 14 August 2018, in breach of the agreement in the 1997 Deed, informed the City that it did not intend to carry out the construction of the slip lane works; and

   (b)Viva Energy's plea at par 13(b)(i) of its defence that the letter from Viva Energy's solicitors to the City dated 10 November 2008, or alternatively a letter from the City's solicitors to Viva Energy's solicitors dated 24 April 2009, indicated that by the date of the letters, a dispute had arisen between the City and Viva Energy concerning Viva Energy's obligation under the deed.

   [64] The City's submissions in support of its application pars 9 - 11.

2. The City observed that Viva Energy's reasoning seemed to be that the alleged arising of the dispute crystallised Viva Energy's obligations and 'started the limitation time running'.[65]  It was submitted on behalf of the City that par 13(b)(i) of Viva Energy's defence gave rise to a need to examine the communications between Viva Energy and its various consultants between 2008 and the commencement of the action in 2018, to answer the question as to whether it can be fairly said that a dispute had arisen which had the effect of terminating the joint efforts of the City and Viva Energy to achieve compliance by Viva Energy with its obligations under the 1997 Deed.  Counsel emphasised the second broad issue as to why documents relating to architects (category one),[66] surveyors (category four),[67] Telstra (category six)[68] and Main Roads (category seven), were relevant.[69]

   [65] The City's submissions in support of its application par 9.

   [66] ts 49 - 50 (23 June 2021).

   [67] ts 54 (23 June 2021).

   [68] ts 51 (23 June 2021).

   [69] ts 51 (23 June 2021).

3. Counsel further submitted that documents sought were relevant to the question as to whether the assurances and acknowledgements contained in the correspondence estop Viva Energy from denying liability for the construction of the slip lane by reason of the effluxion of time as pleaded in the City's reply.[70]

   [70] The City's submissions in support of its application par 10; reply par 9.

4. Counsel for the City submitted that for the purpose of dealing with these issues, it is necessary for the City to have discovery of communications between Viva Energy and its consultants up to the time of commencement of this action.

5. At par 12 of the City's submissions it was further noted that Viva Energy pleads at par 13(b)(ii) of its defence that all or alternatively the vast majority of the correspondence listed in the schedule to the amended statement of claim, and following the issue of the letter of 10 November 2008, alternatively the letter of 24 April 2009, is properly to be characterised as 'without prejudice' correspondence.  The City submitted that for the purpose of dealing with that issue also, it is necessary for the City to have discovery of communications between Viva Energy and its various consultants, particularly in the period from 10 November 2008.

Viva Energy's position

Non-compliance of the plans and specifications for the slip lane with the relevant laws and standards

1. I understood Viva Energy to accept that documents 'relating to … the provision or design of a slip lane in Walter Road adjacent to the property' were relevant to the matters in issue in this proceeding.[71]  However, Viva Energy expressed concern that by its application, the City sought further discovery to reveal 'the extent to which the Plans and Specifications for the Slip Lane no longer comply with the relevant laws and standards'.  In this regard, counsel for Viva Energy submitted that:[72]

   What Viva is seeking to establish is the actual framework of regulation, specification and standards that would be imposed by the City if it were to be doing these works at any particular point in time.  You do not prove the existence or non-existence of a standard or specification that will be imposed by the City by looking at a communication between Viva and one of its consultants.

   [71] Viva Energy's submissions in opposition to the City's application par 26.  Although counsel for Viva Energy made further submissions as to why the documents sought were not relevant to this issue (see pars 23 ‑ 25 of Viva Energy's submissions in opposition to the City's application), these fell away due to the reduced scope of the City's application.

   [72] ts 58 - 59 (23 June 2021).

2. On behalf of Viva Energy, it was further submitted that the correspondence between the City and its consultants discussing the consultants' understanding as to the applicable standards would be an irrelevant and inadmissible opinion about what a standard might be and how it might apply to the facts.[73]  Moreover, such correspondence would not inform the court as to what the standards actually were.

Viva Energy's limitation plea and the City's estoppel plea

[73] ts 59 (23 June 2021).

1. As to the City's second broad issue, counsel for Viva Energy submitted that in order to determine whether a dispute had arisen at the relevant time, it is only necessary to look at the letters 10 November 2008 and 24 April 2009, both of which were annexed to the affidavit of Ms Vasic sworn in opposition to the City's application.[74]  Put simply, the position of Viva Energy was that the letter does not give rise to the obligation for discovery because what is relied on is that letter.[75]  Moreover, to the extent that the documents sought may give rise to the City's estoppel claim, all that matters is what was represented by Viva Energy to the City.  What the representor (Viva Energy) represented to third parties is immaterial.[76]

   [74] Viva Energy's submissions in opposition to the City's application par 17, referring to the affidavit of I Vasic sworn 20 April 2021 pars 6 - 9, IV26, IV27.

   [75] ts 59 - 60 (23 June 2021).

   [76] ts 60 - 61 (23 June 2021).

2. Further, it was submitted that even if it were necessary to look at the communications between Viva Energy and its consultants after the dispute arose in 2008, the only documents likely to assist in determining the purpose of the consultants' engagement is correspondence relevant to their retainer.[77] In this regard, it was submitted that the communications between Viva Energy and its consultants had been discovered and privilege from production had been claimed.

Existence

[77] Viva Energy's submissions in opposition to the City's application par 28.

1. With respect to all categories of documents sought by the City's application, Viva Energy's position (in a letter dated 11 November 2020 sent in response to the City's request for further and better discovery dated 12 June 2020,[78] and again in the submissions filed in opposition to this application[79]) was that it had discovered all documents which relate to the matters in question.  Viva Energy relied upon the two affidavits of discovery filed in the proceeding.  Further, counsel for Viva Energy observed that the fact that some of the documents which may once have existed can no longer be located, nor identified, is not unusual given the passage of time and the period in which the documents may have come into existence (predominantly pre‑digitisation).[80]

   [78] Affidavit of DW McLeod sworn 26 March 2021, DM26.

   [79] Viva Energy's submissions in opposition to the City's application pars 31 - 32.

   [80] Viva Energy's submissions in opposition to the City's application par 32.

2. The City disputed Viva Energy's contention in this respect and submitted that it was:[81]

   difficult to accept that [Viva Energy] has no documents or copies of documents covering the period 2008 to 2018, and particularly as recently as 2014 to 2017, particularly in view of the frequent references in correspondence received by [the City] or its solicitors, to current actions being taken by consultants on behalf of [Viva Energy], or current instructions by or on behalf of [Viva Energy] to the consultants.

   [81] The City's submissions in support of its application par 32.

3. By this, I understood the City to submit that the court may draw an inference that additional documents exist which ought to have been discovered by reason of an insufficiency that appears from the affidavits of discovery filed by Viva Energy, or from the documents themselves which were formally discovered. As outlined above, whether the application is under the RSC O 26 r 6 or the court's inherent jurisdiction, the test is whether the court has reasonable grounds for being fairly certain that there are other relevant documents which ought to have been disclosed.

4. By reference to documents attached to Mr McLeod's affidavit of 26 March 2021, counsel for the City submitted that Viva Energy had engaged and worked with various consultants for the purpose of designing and constructing the slip lane and moving the communication pits.[82]

   [82] The City's submissions in support of its application par 26.

5. I understood counsel for Viva Energy to submit, among other things, that while no issue was taken with the mere fact that the consultants referred to in the City's application were consultants engaged by Viva Energy in respect of the project from time to time, the engagement of those consultants was not material to the application.[83]  Further, counsel on behalf of Viva Energy noted that no affidavit had been deposed on behalf of the City stating the belief of the deponent that Viva Energy has, or at some time had, in its possession, custody or power the classes of documents described in the City's application.  Viva Energy submitted that no such affidavit could be filed when regard was had to the City's submissions allowing for the possibility that Viva Energy does not in fact have the documents sought.[84]

Discretion

[83] ts 47 - 48 (23 June 2021).

[84] Viva Energy's submissions in opposition to the City's application par 34, referring to the City's submissions in support of its application par 33.

1. Counsel for Viva Energy also urged the court to not exercise its discretion to grant the City's application for the following five reasons.[85]

   (1)The marginal/indirect relevance of the categories of documents sought to the core issues in dispute in the proceeding.

   (2)Many of the documents sought are in the nature of expert evidence.  To the extent that those documents came into existence prior to the proceeding being contemplated in 2008, Viva Energy has discovered them and so there is no utility in the court making an order for discovery of them.  After the contemplation of the proceeding, Viva Energy engaged the consultants for the purposes of trying to resolve the matters in issue and avoid the litigation and are therefore the subject of litigation privilege, without prejudice privilege, or both.  Those documents have also been discovered and Viva Energy has claimed privilege from production.  There is therefore no utility in the court making an order for discovery of them.

   (3)A large number of the categories relate to a period in which any documents would be privileged.  The City seeks to generate a reason to allow it to pull aside the veil of privilege, rolled up in the guise of an application for further and better discovery, but if the court ordered that any further documents coming within the categories which may exist be discovered, Viva Energy would continue to resist production of those documents on the basis of privilege and a further application may be necessary to deal with that issue.

   (4)Insofar as the City's application relates to documents which have already been discovered but over which privilege is claimed, it ought to bring a separate application with respect to that issue rather than seeking to have it addressed using this process.

   (5)The orders sought are oppressive and would require Viva Energy to undertake further extensive enquiries of its (former) consultants to determine if any additional documents exist, in circumstances in which many of the documents are unlikely to relate to any of the matters in issue.

Disposition

Privilege

[85] Viva Energy's submissions in opposition to the City's application par 44.

1. In all of the circumstances, this application is not the appropriate juncture to determine a claim for privilege, and I have approached the City's application with this in mind.

2. I proceed on the basis that by this application Viva Energy may be required to give further and better discovery documents which, in the end, may not be admissible in evidence.[86]  That is, if the City succeeds in its application for further and better discovery of any category of documents, Viva Energy will be ordered to make an affidavit stating the documents that are, or have any time been, in its possession, custody or power that fall withing the scope of that category.  It may well be that Viva Energy claims privilege over certain documents and objects to the City's inspection of the same, but that is a question for another time.

   [86] Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd [37].

3. Viva Energy cites the potential that a further application may be necessary to deal with privilege as a reason for the court not to exercise its discretion and order Viva Energy to give further and better discovery.[87]  I did not give this submission weight in the exercise of discretion or otherwise.  I understand that the pleadings filed and the discovery already necessitate such an application in any event.

Existence

[87] As summarised at [75(3)] above.

1. I considered whether there are reasonable grounds for being fairly certain that documents additional to those that have been discovered and are now sought are (or were) in existence, and I found the assessment of this to be very finely balanced.

2. No affidavit was deposed on behalf of the City as required by the RSC O 26 r 6(3). Further, the application was not grounded by reference to discovered documents which referenced other documents that had not been discovered; or by reference to a statutory obligation to keep minutes of certain meetings (as Viva Energy did in its application). Instead, by its application, the City sought to persuade the court to draw an inference that additional documents exist which ought to have been discovered by reason of an insufficiency that appears from the affidavits of discovery filed by Viva Energy. When regard was had to the documents discovered by Viva Energy, the City maintained that the existence of additional documents was self‑evident.

3. The submission made at par 32 of the City's submissions in support of its application,[88] suggests that Viva Energy 'has no documents or copies of documents covering the period 2008 to 2018, and particularly as recently as 2014 to 2017'.   I do not understand that to be the case.  In the first affidavit of Mr Piotti verifying Viva Energy's list of documents sworn on 13 March 2020, at pt 4, documents Viva Energy discovers but objects to producing are listed.  Part 4.2 concerns correspondence and copy correspondence passing between the parties or their agents and their solicitors by way of negotiations for the attempted settlement of the dispute (whether or not marked without prejudice) common to all parties.  Under pt 4.2, 40 documents are listed, with a date range of May 2009 to August 2017.

   [88] Excerpt reproduced at [71] above.

4. Further, pt 4.1 concerns confidential communications between Viva Energy, Viva Energy's solicitors, and third parties, and documents that came into existence for the dominant purpose of giving or enabling Viva Energy to obtain legal advice in relation to the 1997 Deed and Shell's obligations under the 1997 Deed for the period commencing 23 May 2008.  More specifically, those communications include notes, memoranda, reports and opinions made or given by Viva Energy's consultants and experts, including any drafts thereof.  I note that the documents described in pt 4.1 as having various dates from 23 May 2008 have not been individually listed, and therefore the number of documents falling within the scope of pt 4.1 cannot be discerned from the affidavit.

5. While I understand it to be accepted by Viva Energy that it has discovered a relatively modest number of documents in this proceeding, the suggestion that no documents have been discovered from the period 2008 to 2018 is not supported by Viva Energy's affidavits of discovery.

6. As was acknowledged by counsel for Viva Energy, given the timeframe, there is some prospect that documents might have been lost or destroyed.[89]  I also had regard to what Viva Energy said about 'the Lost Documents' in the letter from HWL Ebsworth to McLeods Lawyers dated 11 November 2020.[90]

   [89] Viva Energy's submissions in opposition to the City's application par 32.

   [90] Affidavit of DW McLeod sworn 26 March 2021, DM26.

7. However, having regard to the City's submission and in light of all of the evidence before me, I am not satisfied that there are reasonable grounds for being fairly certain that documents additional to those that have been discovered and are now sought are (or were) in existence.  On the evidence before me, I am not persuaded to draw an inference that additional documents exist by reason of an insufficiency which appears from the affidavits of discovery filed for Viva Energy.

Relevance

1. For the reasons set out above, I do not find there to be reasonable grounds for being fairly certain that documents sought are (or were) in existence. Despite this, it is appropriate that I set out below my findings by reference to each of the eight categories as to the relevance of the documents to the matters in issue in the proceeding, particularly by reference to the two broad issues arising out of Viva Energy's defence discussed at [58] to [65] above. Further, I considered and set out below my findings as to whether the court's discretionary power to order further discovery ought be exercised having regard to the matters described at [41] above.

Architect-related documents (category 1)

1. To the extent not already discovered, the City sought discovery of any plan, specification, report or communication of any kind or any note or memorandum, prepared for or relating to traffic crossovers between the Subject Land and Walter Road and/or the provision or design of a slip lane in Walter Road adjacent to the Subject Land. Those documents were requested in relation to Ken Paterson Architects, Dryka & Partners, Oldfield Knott Architects, and any principal, employee or other person representing any of those architects in the period described at [55] above.

2. I understood Viva Energy to accept that documents 'relating to … the provision or design of a slip lane in Walter Road adjacent to the Property' to be relevant to the matters in issue in this proceeding.[91]  Further, it was accepted that Ken Paterson Architects, Dryka & Partners and Oldfield Knott Architects were Viva Energy's consultants from time to time.[92]

   [91] Viva Energy's submissions in opposition to the City's application par 26.

   [92] ts 47 - 48 (23 June 2021).

3. Counsel for the City drew the court's attention to DM4 of Mr McLeod's affidavit of 26 March 2021, being a communication from Ken Paterson Architects to the City dated 20 October 1996, attaching correspondence from Telstra dated 15 April 1996 in relation to relocation timing and cost.[93]  Having referred to annexure DM4, counsel for the City observed and submitted as follows:[94]

   That is one communication by Ken Paterson, which establishes the relationship between Ken Paterson and his consultancy with [Viva Energy] relevant to the construction of the slip lane and the associated relocation of the communication pits.  So it's not unreasonable to expect that [Viva Energy] may have had other communications with Ken Paterson which elaborate on the relationship that [Viva Energy] had to the – or – that the level of commitment that [Viva Energy] had to the carrying out of the work in the – in performance of the obligations in the deed of 15 January 1997.

   That is what we're trying to get at in order to deal with the limitation defence.  The acknowledgements and – can't remember the term – the acknowledgements that [Viva Energy] – that there are of [Viva Energy] having committed itself to the performance of the obligations in the deed.

   [93] ts 49 (23 June 2021).

   [94] ts 49 (23 June 2021).

1. As to Dryka & Partners, counsel for the City made submissions as to their apparent involvement discerned from the City's discovered documents.[95]  In this regard, counsel submitted:[96]

   [I]t seems apparent that Dryka were consultants to [Viva Energy] in matters connected with the construction of the slip lane and moving of the communication pits, a matter which goes to the level of commitment that [Viva Energy] had to the construction of the slip lane and goes to the issue of the acknowledgments and affirmations of the defendant's commitment to the obligations in the deed in relation to the slip lane and relocation of the communication pits.

   [95] The City's submissions in support of its application par 15(a); affidavit of DW McLeod sworn 26 March 2021, DM10, DM11.

   [96] ts 50 (23 June 2021).

2. I am satisfied that category one documents are relevant in the sense accepted by Viva Energy.[97]  As to the two broad issues identified by the City and discussed at [58] to [65] above, they are relevant only insofar as they may lead to a train of inquiry that would either advance or damage a party's case.  As to whether discretion ought be exercised, the submissions made on behalf of Viva Energy summarised above at [75] are persuasive, and given the length of this judgment, I will not repeat them here.  Without predetermining the matter, the proposed use of the category one documents by the City in its foreshadowed response to the two broad issues would likely give rise to objection being taken by Viva Energy.

   [97] Viva Energy's submissions in opposition to the City's application par 26.

3. Having regard to the affidavit evidence relied upon and the submissions made on behalf of the parties, on balance I do not consider it appropriate to exercise discretionary power to order further and better discovery of documents falling within the scope of category one.

Planning consultants (category 2)

1. To the extent not already discovered, the City sought discovery of any plan, drawing, specification, report, submission, quotation or tender, or communication of any kind, or any note or memorandum prepared for or relating to traffic crossovers between the Subject Land and Walter Road and/or the provision or design of a slip lane in Walter Road adjacent to the Subject Land.  Those documents were requested in relation to Greg Rowe & Associates or the Rowe Group; BSD Planning Consultants, and any principal, employee or other person representing any of those planning consultants.

2. The City sought further and better discovery of planning consultants engaged by Viva Energy relating to their involvement in connection with the obligation central to the proceeding.[98]

   [98] ts 54 (23 June 2021).

3. I am satisfied that documents falling within the scope of category two are relevant in the sense described by Viva Energy.[99]  However, as to the two broad issues identified by the City and discussed at [58] to [65] above, they are relevant only insofar as they may lead to a train of inquiry.  As to whether discretion ought to be exercised, again I find the submissions made on behalf of Viva Energy summarised above at [75] to be persuasive.

   [99] Viva Energy's submissions in opposition to the City's application par 26.

4. Having regard to the affidavit evidence relied upon and the submissions made on behalf of the parties, I do not consider it appropriate to exercise discretionary power to order further and better discovery of documents falling within the scope of category two.

Engineers or traffic consultants (category 3)

1. To the extent not already discovered, the City sought discovery of any plan, drawing, report, submission, quote or tender, or communication of any kind, or any note or memorandum prepared for or relating to traffic crossovers between the Subject Land and Walter Road and/or the provision or design of a slip lane in Walter Road adjacent to the Subject Land, or otherwise relating to traffic movements or traffic safety at the intersection of Walter Road and Russell Street, or relating to the convenient and/or safe operation of the crossovers between the Subject Land and Walter Road.  Those documents are requested in relation to RJ Nairn and Partners, SPA Consultants, and any principal, employee or other person representing any of those engineers or traffic consultants.

2. By the submissions and affidavit of Mr McLeod in support of the application, counsel for the City referred to communications which suggested that Ove Arup & Partners and Wood & Grieve, both of whom I understand to be engineering firms, would be designing the slip lane.[100]  However, from the express language of the application (particularly category three), I did not understand that the City sought discovery of communications in relation to either of these firms.

   [100] The City's submissions in support of its application pars 17, 25; affidavit of DW McLeod sworn 26 March 2021, DM12, DM25.

3. Again, I am satisfied that documents falling within the scope of category three are relevant in the sense described by Viva Energy.[101]  However, as to the two broad issues identified by the City and discussed at [58] to [65] above, they are relevant only insofar as they may lead to a train of inquiry.  As to whether discretion ought to be exercised, I find the submissions made on behalf of Viva Energy summarised above at [75] to be persuasive.

   [101] Viva Energy's submissions in opposition to the City's application par 26.

4. Having regard to the affidavit evidence relied upon and the submissions made on behalf of the parties, I do not consider it appropriate to exercise discretionary power to order further and better discovery of documents falling within the scope of category three.

Surveyors (category 4)

1. To the extent not already discovered, the City sought discovery of any plan, diagram, drawing or sketch, and any report, or any communication of any kind, or any note or memorandum prepared for or relating to the design or provision of the slip lane in Walter Road adjacent to the Subject Land, or relating to the location, design or construction of crossovers between the Subject Land and Walter Road.

2. Counsel for the City indicated that:[102]

   So really, what we're after here is another indication of the level of acknowledgement and affirmation by the defendant of its commitment to the performance of the obligations in the deed in relation to the construction of the slip lane and the relocation of the communication pits.  The surveyors would be quite relevant consultants in relation to the preparation of any plans for the design of the slip lane and for the provision of the land required to accommodate the construction of the slip lane.

   [102] ts 54 (21 June 2021).

3. Again, I am satisfied that documents falling within the scope of category four are relevant in the sense described by Viva Energy.[103]  However, as to the two broad issues identified by the City and discussed at [58] to [65] above, they are relevant only insofar as they may lead to a train of inquiry.  As to whether discretion ought to be exercised, I find the submissions made on behalf of Viva Energy summarised above at [75] to be persuasive.

   [103] Viva Energy's submissions in opposition to the City's application par 26.

4. Having regard to the affidavit evidence relied upon and the submissions made on behalf of the parties, I do not consider it appropriate to exercise discretionary power to order further and better discovery of documents falling within the scope of category four.

Owners of the Subject Land (category 5)

1. To the extent not already discovered, the City sought discovery of any communication of any kind between Viva Energy or any representative of Viva Energy, and the various owners (or any representative of an owner) of the Subject Land relating to the provision of a slip lane in Walter Road adjacent to the Subject Land, or any note or memorandum relating to the same.

2. Documents falling within the scope of category five are relevant to this proceeding. However, the City advanced its application by reference to the two broad categories identified in its submissions (described at [58] to [65] above), and I am not satisfied that category five documents are relevant to the first of the two broad issues identified by the City. As to the second, they are relevant only insofar as they may lead to a train of inquiry. However, as to whether discretion ought be exercised, I again find the submissions made on behalf of Viva Energy summarised above at [75] above to be persuasive.

3. Having regard to the affidavit evidence relied upon and the submissions made on behalf of the parties, I do not consider it appropriate to exercise discretionary power to order further and better discovery of documents falling within the fifth category.

Telstra (category 6)

1. To the extent not already discovered, the City sought discovery of any communication of any kind between Viva Energy and Telstra Corporation relating to the relocation of Telstra communication pits in connection with the proposal for construction of a slip lane in Walter Road adjacent to the Subject Land.

2. Counsel for the City submitted as to relevance that:[104]

   [I]t would be particularly relevant to the level of commitment that [Viva Energy] has made to the carrying out of the obligations in the deed, to know what the nature of the communications with Telstra have been.

   [104] ts 51 (23 June 2021); see also ts 52 (23 June 2023).

3. Again, I am satisfied that documents falling within the scope of category six are relevant in the sense described by Viva Energy.[105]  However, I am again not satisfied that category six documents are relevant to the first of the two broad issues identified by the City and discussed at [58] to [65] above.  As to the second broad issue, they are relevant only insofar as they may lead to a train of inquiry.  As to whether discretion ought be exercised, I find the submissions made on behalf of Viva Energy summarised above at [75] to be persuasive.

   [105] Viva Energy's submissions in opposition to the City's application par 26.

4. Having regard to the affidavit evidence relied upon and the submissions made on behalf of the parties, I do not consider it appropriate to exercise discretionary power to order further and better discovery of documents falling within the sixth category.

Main roads (category 7)

1. To the extent not already discovered, the City sought discovery of any communication of any kind between Viva Energy or any representative of Viva Energy and Main Roads Western Australia in relation to the construction of proposal for construction of a slip lane in Walter Road adjacent to the Subject Land, or the construction and operation of crossovers from the Subject Land to Walter Road, or otherwise in relation to traffic management at the intersection of Walter Road and Russell Street, Morley.

2. Counsel for the City drew the court's attention to DM15 of Mr McLeod's affidavit of 26 March 2021, a communication from Main Roads to the City dated 29 July 2010, which revealed that Main Roads had been engaged in relation to the slip lane concept design.[106]

   [106] The City's submissions in support of its application par 20; affidavit of DW McLeod sworn 26 March 2021, DM15.

3. As to relevance, counsel for the City submitted:[107]

   We would like to know what the extent of the communications was with Main Roads, so as to deal with, principally, the level of commitment that [Viva Energy] had to the design and construction of the slip lane, and also, I suppose, the – this particular request would also be relevant to [Viva Energy's] pleading in regard to problems that were raised by – and I'm paraphrasing here – but problems were raised by Main Roads in regard to the design of the slip lane.  To the extent that it might be relevant to the action, and it certainly appears to have some relevance on [Viva Energy's] pleading.  We would like to know what communications there were between Main Roads and [Viva Energy].

   [107] ts 51 (21 June 2021).

4. The reference to pleadings, while not explained, appears to be a reference to Viva Energy's further and better particulars of defence filed on 21 March 2019, as Main Roads is not otherwise referenced in Viva Energy's defence.

5. The City further noted that Viva Energy 'in its defence has made something of the fact that there were issues in regard to the design of the slip lane associated with Main Roads' requirements'.[108]

   [108] ts 50 (21 June 2021).

6. Again, I am satisfied that documents falling within the scope of category seven are relevant in the sense described by Viva Energy.[109]  However, I am again not satisfied that category seven documents are relevant to the first of the two broad issues identified by the City and discussed at [58] to [65] above.  As to the second issue, they are relevant only insofar as they may lead to a train of inquiry.  As to whether discretion ought be exercised, I again find the submissions made on behalf of Viva Energy summarised above at [75] to be persuasive.

   [109] Viva Energy's submissions in opposition to the City's application par 26.

7. Having regard to the affidavit evidence relied upon and the submissions made on behalf of the parties, I do not consider it to be appropriate to exercise discretionary power to order further and better discovery of documents falling within the seventh category.

Michael Whyte & Co (category 8)

1. To the extent not already discovered, the City sought discovery of any communication of any kind between Michael, Whyte & Co Solicitors and Viva Energy in regard to the preparation or the terms of the 1997 Deed which was ultimately dated 15 January 1997 between the City, Viva Energy, and the Owner.

2. Counsel for the City noted that Michael, Whyte & Co had prepared the 1997 Deed.[110]  Counsel submits that the involvement of Michael, Whyte & Co in drafting and settling the 1997 Deed was carried out apparently on behalf of both Viva Energy and the City, and communications to and from Michael, Whyte & Co are potentially relevant to resolution of the issues in the pleadings, referred to in the City's submissions.[111]

   [110] As is visible from the cover: see affidavit of DW McLeod sworn 26 March 2021, DM1.

   [111] The City's submissions in support of its application par 18.

3. As to relevance, counsel for Viva Energy again submitted that documents that fall within the scope of category eight do not relate to either of the two broad categories identified by the City in its submissions, nor could the pre‑contractual negotiations inform construction.[112]

   [112] ts 63 (23 June 2021); Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337, 352 ‑ 353.

4. I am not satisfied that the category eight documents are relevant to either of the two broad issues identified by the City and discussed at [58] to [65] above.  In the circumstances, there is no basis to exercise the discretionary power to order further and better discovery.

Sabre order

1. The final submission made on behalf of the City in the written submissions filed in support of the City's application was in the following terms:

   33Even if it happens that [Viva Energy] for some reason does not have relevant documents or copies in its possession, given that there are frequent references in [Viva Energy's] correspondence to the appointment of consultants and work undertaken by consultants, the consultants referred to must have maintained files which would contain correspondence and copies of correspondence relevant to the action.  As consultants to [Viva Energy], [Viva Energy] should be in a position to require the consultants to provide them with documents and copy documents from their consultancy files.

2. The court has power to direct a party to take steps to obtain access to, and discover, documents which are in the possession, power or control of a third party, where there is a real likelihood that the party to the proceeding will be given access to the documents upon request.[113] Such an order is sometimes referred to as a 'Sabre order',[114] and the court has the power to make such orders pursuant to the RSC O 4A r 2(1) and r 5(2)(b) and O 1 r 4B(1)(a) and r 4B(2).

   [113] Absolute Analogue Inc v Sundance Resources Ltd [2008] WASC 259 [30] ‑ [32]; Rafferty v Amaca Pty Ltd [2017] WASC 18 [62].

   [114] Which derives its name from Sabre Corporation Pty Ltd v Russ Kalvin's Hair Care Co (1993) 46 FCR 428.

3. Viva Energy's obligation to give discovery did not extend to taking the steps contemplated in par 33.  I understood counsel for the City to contemplate in par 33 is the making of a Sabre order, but the City did not apply for the same in its summons.

4. In the written submissions filed on behalf of Viva Energy in opposition to the application, counsel for Viva Energy responded to par 33 of the City's submissions, opposing the making of a Sabre order.[115]  The following matters were raised by counsel.

   [115] Viva Energy's submissions in opposition to the City's application pars 15 - 21.

5. First, while the City suggests Viva Energy 'copy documents from … consultancy files', there is nothing in the RSC O 26 which requires a party to create documents for the purposes of complying with an order. Moreover, to be ordered to create a document would be one step further removed from the nature of a Sabre order.

6. Secondly, any copies of documents made would be subject to legal professional privilege, in the form of litigation privilege,[116] and such privilege is unimpeachable and stands even where, for example, the original documents may cease to exist.[117]  Therefore, there is no utility in the making of orders as contemplated in par 33 of the City's submissions as they will not facilitate the production of the documents and will unnecessarily add to Viva Energy's costs of litigation.

   [116] Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501.

   [117] In support of this proposition, counsel cited Brewer v Colonial Portfolio Services Ltd [2007] WASC 22 [5].

7. Thirdly, the effect of the City's submission is to support something quite akin to a Sabre order, and no such orders have been expressly requested in the City's application.  The request for a Sabre order should be refused in light of the following considerations:[118]

   (a)the City produced no evidence that there is a real likelihood that the party against whom the order is sought would be given access to the documents upon request;

   (b)the City produced no evidence as to the likelihood that the documents sought are in fact in existence in the possession of the third party; and

   (c)the order sought goes beyond the permissible scope of the order, which must be limited to requiring the person against whom it is made to take all reasonable steps to obtain the documents.

   [118] Rafferty v Amaca Pty Ltd [63]; SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd [No 2] [2006] FCA 931; (2006) 155 FCR 150 [31] ‑ [33].

8. At the hearing of the application, counsel for the City did not move for the making of a Sabre order, and neither counsel further addressed par 33 of the City's written submissions.

9. I accept the court has the power to make orders as to discovery 'at any time of its own motion in any proceedings'.[119]  That is, in appropriate circumstances, the court of its own motion could order the discovering party (Viva Energy) to make reasonable efforts to procure the documents from an associated body (its former consultants) that holds them, and an ancillary order to discover documents received if produced by the associated body.  However, in circumstances where no application was made, and the evidence before me was not compelling (among other things, it did not reveal whether there was a real likelihood that Viva Energy would be given access to the documents upon request), I conclude that it is not appropriate at this time on the court's own motion to make a Sabre order.

Conclusion

[119] RSC O 26 r 7(3).

1. At the commencement of the hearing, significant parts of the City's application were abandoned through amendment to the summons.  This narrowed the application to eight categories in the narrowed form as is reproduced at sch A to these reasons.  The City's application in the form pressed at the hearing cannot succeed for the reasons set out above.  Further, I am not prepared to make a Sabre order in relation to the production of documents that might be held by any of Viva Energy's consultants or Michael, Whyte & Co.  Of course, the City might consider other avenues to secure production of the records of Viva Energy's consultants, Michael, Whyte & Co, the Owner (or any subsequent owner of the Subject Land), Telstra, or Main Roads.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

AI
Associate to the Honourable Justice Strk

15 NOVEMBER 2022

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION: CITY OF BAYSWATER -v- VIVA ENERGY AUSTRALIA PTY LTD [No 2] [2022] WASC 384 (S)

CORAM:   STRK J

HEARD:   15 & 24 NOVEMBER 2022 & 8 DECEMBER 2022

DELIVERED          :   8 DECEMBER 2022

PUBLISHED           :   4 JANUARY 2023

FILE NO/S:   CIV 2262 of 2018

BETWEEN:   CITY OF BAYSWATER

Plaintiff

AND

VIVA ENERGY AUSTRALIA PTY LTD

Defendant

Catchwords:

Practice and procedure - Costs - Applications for further and better discovery - Whether the applicable cost scales should be lifted - Turns on own facts

Legislation:

Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2020 (WA)
Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2022 (WA)
Legal Profession Uniform Law Application Act 2022 (WA), s 141
Rules of the Supreme Court 1971 (WA), O 66

Result:

Plaintiff pay the defendant's costs
Special costs order made

Category:    B

Representation:

Counsel:

Plaintiff	:	DW McLeod
Defendant	:	TJ Porter

Solicitors:

Plaintiff	:	McLeods Lawyers
Defendant	:	HWL Ebsworth Lawyers

Case(s) referred to in decision(s):

City of Bayswater v Viva Energy Australia Pty Ltd [2021] WASC 373

City of Bayswater v Viva Energy Australia Pty Ltd [No 2] [2022] WASC 384

Sino Iron Pty Ltd v Mineralogy [No 2] [2017] WASCA 76 (S)

STRK J:

(This judgment was delivered extemporaneously and has been edited from the transcript.)

Introduction

1. Two applications came before me to be determined.  The plaintiff and the defendant had each applied for further and better discovery from the other.  For reasons delivered on 15 November 2022, I concluded that it was appropriate to refuse the plaintiff's application and to grant the defendant's application for further and better discovery: City of Bayswater v Viva Energy Australia Pty Ltd [No 2] [2022] WASC 384.

2. In the final paragraph of my published reasons, I indicated that I would hear the parties as to the form of orders and as to costs, noting that the Rules of the Supreme Court 1971 (WA) O 66 r 47(3) provides that the party against whom an order for discovery is made must pay the costs of the application, unless otherwise ordered by the court.

3. It is not in contest as between the parties that the general rule is that costs follow the event, such that the successful party should recover its costs.[268]  The contest before me as to the appropriate costs outcome concerns the application of well-established principles to the circumstances of each application.

   [268] Rules of the Supreme Court O 66 r 1(1).

4. The defendant seeks that the plaintiff pay the defendant's costs of and incidental to the plaintiff's application and the defendant's application, with such costs to include but not to be limited to:

   (a)the hearing on 23 June 2021;

   (b)the plaintiff's further submissions in lieu of oral submissions dated 25 June 2021;

   (c)the defendant's supplementary submissions dated 29 June 2021;

   (d)the directions hearing on 15 November 2022; and

   (e)the contested costs orders and the costs of and incidental to the hearings on 24 November 2022 and 8 December 2022.

5. The defendant initially sought that its costs of prosecuting its application and defending the plaintiff's application be fixed in the sum of $95,000 and payable forthwith.  In light of the limited evidentiary foundation for fixing costs in that amount, counsel for the defendant advised the court that an order fixing costs in that amount was not pressed.[269]  That concession was appropriately made in light of the evidence before the court and the amount sought to be recovered.

   [269] ts 178 - 179 (24 November 2022); ts 202 (8 December 2022).

6. In the usual run of routine matters parties can expect that rather than being taxed, costs will be fixed by reference to the schedule of standard costs orders for interlocutory applications at Consolidated Practice Direction 4.7.1.1, where the figures suggested have been calculated by reference to the time required in a typical, or median, instance.[270]  In this case, the defendant submits that the applications were not typical and the figures suggested in the schedule do not reflect the work the defendant had been required to undertake.[271]

   [270] Consolidated Practice Direction 4.7.1 pars 8 and 10.

   [271] ts 158 - 159 (15 November 2022).

7. While initially framed in the alternative, the defendant seeks that its costs be paid by the plaintiff in an amount to be assessed if not agreed, and pursuant to s 141(3) and s 141(4) of the Legal Profession Uniform Law Application Act 2022 (WA), that those costs be fixed or assessed without regard to the limits imposed by item 10(a) of table B of the Legal Profession Supreme and District Courts Contentious Business Determination 2020 (WA) (2020 cost scale), and item 10(b) of table B of the Legal Profession Supreme and District Courts Contentious Business Determination 2022 (WA) (2022 cost scale).

8. In support of its position on costs, the defendant relies upon a minute of proposed orders filed on 23 November 2022 (an amended version of which was provided to the court on 8 December 2022); submissions filed on 23 November 2022; the affidavit of Stephanie Pin Jian Tan sworn on 23 November 2022; and the oral submissions made by counsel.  I have had regard to the same in determining the appropriate costs order.

9. The plaintiff does not accept that the order proposed by the defendant is appropriate or warranted in the circumstances of the applications heard and determined.  As to costs, the plaintiff seeks orders in the terms promoted in its minute of proposed orders filed on 6 December 2022, that is:

   1.Pursuant to Order 66 rule 47(3) of the Rules of the Supreme Court 1971 (WA), the plaintiff pay the defendant's costs of and incidental to the defendant's application on a party and party basis, including the hearings on 15 November 2022, 24 November 2022 and 8 December 2022, to be taxed in accordance with item 10 of the relevant Cost Determination, if not agreed.

   2.The costs of and incidental to the plaintiff's application for further and better discovery be in the cause.

   3.Alternatively to para.2 hereof, pursuant to Order 66 rule 43(3) of the Rules of the Supreme Court, the plaintiff pay the defendant's costs of and incidental to the plaintiff's application on a party and party basis to be taxed in accordance with item 10 of the relevant Cost Determination, if not agreed.

10. In support of its position on costs, the plaintiff relies upon the minute of proposed orders filed on 6 December 2022, as well as submissions filed on 6 December 2022 and the oral submissions made by counsel.  I have had regard to the same in determining the appropriate costs order.

Disposition

1. In circumstances where the defendant was wholly successful in prosecuting its application and also in its opposition to the plaintiff's application, costs ought to follow the event.  That is, it is appropriate that the defendant recover its costs from the plaintiff as to each application, to be taxed if not agreed.  It is also appropriate in the circumstances that the plaintiff pay forthwith to the defendant those costs.

2. I make a number of observations in relation to this disposition.

3. First, as to the defendant's successful application, there is no reason for the court to make an order other than as contemplated by the Rules of the Supreme Court O 66 r 47(3). The plaintiff acknowledged by proposed order 1 of the plaintiff's minute that those costs ought to be recovered by the defendant. The controversy as between the parties is limited to whether the costs of the defendant's application ought be taxed without regard to the limits imposed by the applicable cost scale if not agreed.

4. I am satisfied that in all of the circumstances costs ought follow the event and the defendant, having successfully prosecuted its application, is entitled to its costs to be paid forthwith.  As to whether the limits imposed by the applicable costs scale ought be lifted, I deal with that below.

5. Secondly, on the materials before me, I am not satisfied that I am in a position to fix costs.  The concession made by counsel for the defendant in this regard is appropriately made.  The materials before me are not adequate to provide a proper foundation to fix an amount.  If costs cannot be agreed, the quantum is best determined in this matter by a taxing officer.

6. Thirdly, as to the costs of and incidental to the plaintiff's unsuccessful application for further and better discovery, I am not satisfied that it is appropriate that they be in the cause.

7. In so finding, I have had regard to the submissions made on behalf of the plaintiff at paragraphs 11 to 16 of its written submissions.  I am not persuaded by the same.

8. At par 13 of the plaintiff's submissions, the plaintiff accepts that the court has a general discretion to award costs on dismissal of the plaintiff's application, but submitted that the situation was not as clear as the costs obligation of a party against whom an order for discovery is made pursuant to O 66 r 47(3) of the Rules of the Supreme Court.[272]  I understand the plaintiff to contend that the circumstances justify a cost order in relation to the plaintiff's application that does not reflect the general rule that costs follow the event.

   [272] Plaintiff's submissions par 13.

9. As to the circumstances referenced on behalf of the plaintiff, counsel noted that I considered certain aspects of the plaintiff's application to be 'finely balanced', and that in the disposition of the application, discretion was exercised against the plaintiff.[273]  I do not consider these to be circumstances sufficient to depart from the general rule.

   [273] Plaintiff's submissions par 12.

10. Counsel for the plaintiff submits that it would be appropriate that the court order that the costs of and incidental to the plaintiff's application for further and better discovery be in the cause because the plaintiff had consented to the making of such an order by the learned Master on 12 November 2021 in the context of the plaintiff's successful application for separate trials of liability and quantum.[274]  The fact that the plaintiff may have consented to such an order in the context of an entirely different application I find to be in no way persuasive.

    [274] Plaintiff's submissions par 15; and City of Bayswater v Viva Energy Australia Pty Ltd [2021] WASC 373.

11. Counsel for the plaintiff further submits that it may also be relevant to the disposition on costs that the defendant will have the benefit of an order for costs on the defendant's application in any event, under the orders proposed/consented to by the plaintiff.[275]  It is not.  The defendant was called to prosecute its application and also to defend the plaintiff's application.  To the extent that there were efficiencies created by the concurrent programming of the applications and the hearing of the applications on the same day, such efficiencies will no doubt be taken into account by the taxing officer.

    [275] Plaintiff's submissions par 16.

12. No circumstances exist that call for a departure from the usual position that costs follow the event.  I do not consider it appropriate for the costs of the plaintiff's application to be in the cause.

13. What remains to be determined is whether the limits imposed by the applicable costs scale ought be lifted in relation to either application.

Should the scale be lifted?

1. I turn now to whether it is appropriate that pursuant to s 141(3) of the Legal Profession Uniform Law Application Act, the costs of the applications be taxed if not agreed without regard to the limits imposed by item 10(a) of table B of the 2020 cost scale and item 10(b) of table B of the 2022 cost scale.

2. Section 141(3) is in identical terms to s 280(2) of the Legal Profession Act 2008 (WA), which section was discussed in Sino Iron Pty Ltd v Mineralogy [No 2] [2017] WASCA 76 (S), particularly at [11] ‑ [15]. I had regard to the principles expressed by the Court of Appeal in Sino Iron Pty Ltd v Mineralogy [No 2] as being applicable to an application made pursuant to s 280(2), in the disposition of this matter pursuant to s 141(3).

3. I proceed on the basis that s 141(3) operates to give the successful party the opportunity to recover those costs which have been reasonably and properly incurred where, in the court's opinion, the scale is inadequate because of the unusual difficulty, complexity or importance of the matter.[276]

   [276] Sino Iron Pty Ltd v Mineralogy [No 2] [11].

4. I further proceed on the basis that s 141(3) is protective of the successful party in litigation, and serves the administration of justice, by facilitating, within the limits imposed by the statutory criteria, the operation of the general principle that a successful party is entitled to its costs of the litigation. I also note that an order under s 141(3) does not, of itself, mean that a successful party will recover all of the costs it has incurred, or seeks from the unsuccessful party. It remains the task of a taxing officer to consider the reasonableness and necessity for the work undertaken and to make a judgment about the remuneration reasonably required. I understand these principles to be accepted by the parties.

5. As to the statutory criteria, I also understand it to be common ground as between the parties that the court may make an order under s 141(3) if satisfied of two things. First, that the amounts allowed under the relevant scale item are inadequate in the sense that there is a fairly arguable case that the bill of costs may tax out at an amount which is greater than the scale limit. Secondly, that the inadequacy of the costs allowable arises because of the unusual difficulty, complexity or importance of the matter. These elements are to be addressed as matters of impression, rather than as matters of detailed evaluation, precision or science.[277]

   [277] Sino Iron Pty Ltd v Mineralogy [No 2] [12].

6. I proceed on the basis that a special costs order will not be warranted simply by reference to the effort of the successful party, which may have been disproportionate in all of the circumstances.  I also proceed on the basis that I do not understand the defendant to seek that the maximum hourly and daily rates for solicitors and counsel be raised.[278]

   [278] Affidavit of S Tan, SPJ‑1.

7. As to the first criteria, I find it to be a fairly arguable case that each of the defendant's bills may be taxed and certified in amounts greater than the scale limit, having regard to the maximum amount allowable.  In so concluding, I have had regard to the evidence of Ms Tan as to the costs incurred by the defendant, and to the scale limits.

8. Item 10(a) of the 2020 cost scale is for proceedings in chambers, other than on motions and originating process.  Under that item, allowance is made for 2 days preparation and 1 day hearing, by either senior counsel or counsel.  Item 10(b) of the 2022 cost scale is for attending on a reserved judgment in chambers (including preparation, consideration of reasons for decision and all necessary work and attendances to obtain final orders).

9. Under item 10(a) of the 2020 costs scale, a maximum allowance of $13,530 is made for counsel, referable to 2 days preparation and 1 day of hearing.  No separate allowance is made for preparation of the case, for preparation of written submissions, or for the attendance of instructing legal practitioners.

10. Having regard to the evidence of Ms Tan as to the costs incurred by the defendant, while acknowledging that some amount may properly be allocated to item 27 rather than item 10, I am satisfied that the scale allowance is inadequate in the sense that there is a fairly arguable case that the defendant's bills may tax out at amounts which are greater than the scale limit.  While two days preparation will ordinarily be adequate, the applications before me were made more complex by the manner in which the plaintiff prosecuted its application and opposed the application of the defendant (which is discussed further below).  Further, while the applications were heard in the course of one hearing day, this was only possible because the court had the benefit of the comprehensive written submissions filed on behalf of the defendant in advance of the hearing.  I accept that if written submissions had not been filed, the hearing of the applications would most likely have been adjourned part heard, with the potential for at least a half or full day to follow.  I also note that at the end of the hearing day the plaintiff sought, and I granted, leave to file further written submissions on the basis that there was insufficient time to make those submissions at the hearing and the defendant was granted leave to reply.  No separate allowance is made in item 10 for submissions filed prior to a hearing, nor for submissions filed after a hearing in lieu of further oral submissions.

11. I again note that the making of an order under s 141(3) does not mean that the defendant will recover all of the costs that it has incurred or, indeed, the costs it seeks to recover from the plaintiff as the unsuccessful party in a taxation.

12. As to the second criteria, I have considered whether the inadequacy of the costs allowable arises because of the unusual difficulty, complexity, or importance of the matter.  I approach the same as matters of impression rather than matters of detailed evaluation, precision, or science and, in so doing, I find the second criteria to have been satisfied.

13. In so finding, I am cognisant that the applications are interlocutory and for further and better discovery.  The principles to be applied in the disposition of the applications before me were well settled and such applications are routinely determined.  I weigh the same in the balance.

14. Despite this, the following matters contribute to my finding that the second criteria is satisfied.

15. Mr McLeod had sworn two affidavits with respect to the applications.  The first was sworn on 26 March 2021 in support of the plaintiff's application; the second was sworn on 18 May 2021 in opposition to the defendant's application.

16. Mr McLeod elected to attach to his affidavit of 26 March 2021 10 documents that the defendant had long asserted were subject to without prejudice privilege.[279]  The application for discovery was made more complex by the attachment of documents subject to that unresolved claim of privilege, and by the plaintiff seeking a 'preliminary determination' of the same in the course of the hearing of the applications for further and better discovery.  As my reasons reflect, I was in the end not prepared to make a 'preliminary determination' as to whether 10 of 55 communications listed in the schedule to the amended statement of claim were privileged communications.[280]

    [279] My understanding of the context in which the privilege claim arose is set out in City of Bayswater v Viva Energy Australia Pty Ltd [No 2] at [46] - [47].

    [280] City of Bayswater v Viva Energy Australia Pty Ltd [No 2] [45] - [53] and [76] - [78].

17. It is evident from the materials filed on behalf of the defendant that the manner in which the plaintiff prosecuted its application and sought to defend the application made by the defendant, caused significant time to be spent by the defendant's representatives in an attempt to understand the materials filed, and to apply structure and principle to the same.  The preparation for and hearing of the applications was also made more complicated by the inclusion in Mr McLeod's affidavit of inadmissible submissions and opinion.[281]  The affidavits filed on behalf of the plaintiff conflated evidence, inadmissible opinion and submission, and made the hearing of the applications more difficult.

    [281] City of Bayswater v Viva Energy Australia Pty Ltd [No 2] [54], where the concern raised on behalf of the defendant as to the affidavits sworn by Mr McLeod is recorded.

1. The complexity is also apparent in the reasons published.  Determination of the disputed matters underlying each of the applications was a considerable task, and the court was assisted by significant work performed on behalf of the defendant.  The issues raised on the pleading, I also accept, are complicated.  The plaintiff's view that this is a straightforward, one‑issue proceeding does not take into account the defences pleaded and the complexity of the matters in issue when considered as a whole.

2. I am also cognisant that the matters in issue concern events that occurred over 20 years ago.  While the documentary record is always important, the defendant says that in this case, the documentary record is crucial for its ability to fairly defend itself, and for this reason proper and complete discovery have assumed a particular importance.  I give this submission considerable weight.

3. I also accept that the affidavit evidence and submissions filed on behalf of the defendant in respect of the applications were comprehensive.  My impression is that the materials likely consumed considerable preparation time by the defendant's solicitors and counsel.

4. Finally, as noted above, while the applications took one hearing day, I accept the defendant's account that this was only due to many matters having been addressed in the written submissions filed.  I accept that if written submissions had not been filed, the hearing would have been adjourned part heard, with the potential for at least a half or full day to follow.  The volume of disputed matters underlying each of the applications meant that oral submissions were not concluded within the one hearing day, and warranted the grant of leave to file further written submissions at the conclusion of the hearing.

5. On balance, I accept the complexity of the matters in issue, the volume of evidence and submissions prepared, the volume of inadmissible and irrelevant evidence filed on behalf of the plaintiff, the annexing of documents the subject of an unresolved claim of privilege, and the importance of discovery to the disposition of this proceeding are reasons why the costs of the application are likely to have been considerable and in excess of the maximum allowance allowed under the scale. I accept that the s 141(3) order sought by the defendant is necessary. Without it, there is a real prospect that the defendant will not be able to recover reasonable costs of the applications.

6. I find the statutory criteria to have been satisfied. Of course, that is not the end of the matter. Even where orders are made under s 141(3) of the Legal Profession Uniform Law Application Act, it nevertheless remains the task of the taxing officer to consider the reasonableness of and necessity for the work undertaken, and to make a judgment about the remuneration reasonably required.[282]

   [282] Sino Iron Pty Ltd v Mineralogy [No 2] [11].

7. The costs of the defendant associated with the contested costs order, including the defendant's costs of preparing the documents referred to at [8] above and the involvement and attendance of counsel, are to be paid by the plaintiff (to be taxed if not agreed), to be treated as falling within the ambit of item 10(b) of the relevant costs scale.

8. Finally, as to the making of an order that contemplates taxation rather than an assessment of costs if quantum was not agreed, I note that counsel for the defendant did not oppose the same.[283]  I proceed on the basis that while Consolidated Practice Direction 4.7.2 contemplates the provisional assessment of bills of costs at the discretion of the taxing officer, it is appropriate that the court order that the costs be taxed if not agreed, reserving the question of whether a bill is suitable for provisional assessment to the discretion of the taxing officer as contemplated in Consolidated Practice Direction 4.7.2 pars 4 and 5.

   [283] ts 210 (8 December 2022).

Conclusion and orders

1. There were matters of complexity and difficulty that arose in each of the applications that justify the making of the orders sought on behalf of the defendant, and I am also satisfied that the inadequacy of the scale arises by reason of complexity and importance of the defendant's application.  In all of the circumstances, it is fair that the court exercise its discretion to award costs in accordance with the minute promoted on behalf of the defendant as marked up on 8 December 2022.  Costs are to be payable forthwith once taxed, if not agreed.  There is no reason to depart from the practice of this court to order the payment of costs forthwith.

2. As to costs, I therefore make the following order:

   The plaintiff pay forthwith the defendant's costs of and incidental to the plaintiff's application, and of and incidental to the defendant's application, respectively, with such costs to include (but not be limited to):

   (a)the hearing on 23 June 2021;

   (b)the plaintiff's further submissions in lieu of oral submissions dated 25 June 2021;

   (c)the defendant's supplementary submissions dated 29 June 2021;

   (d)the directions hearing on 15 November 2022; and

   (e)the contested costs orders and the costs of and incidental to the hearings on 24 November 2022 and 8 December 2022,

   to be taxed if not agreed, and pursuant to section 141(3) and (4) of the Legal Profession Uniform Law Application Act 2022 (WA), those costs be taxed without regard to the limits imposed by item 10(a) of Table B of the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2020 (WA) and item 10(b) of Table B of the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2022 (WA).

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

LP
Associate to the Honourable Justice Strk

4 JANUARY 2023