Complete Power Solutions Pty Ltd v UGL Engineering Pty Limited - [2021] WASC 350

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   COMPLETE POWER SOLUTIONS PTY LTD -v- UGL ENGINEERING PTY LIMITED [2021] WASC 350
CORAM:   ALLANSON J
HEARD:   ON THE PAPERS
DELIVERED          :   14 OCTOBER 2021
PUBLISHED           :   14 OCTOBER 2021
FILE NO/S:   CIV 2476 of 2015
BETWEEN:   COMPLETE POWER SOLUTIONS PTY LTD
Plaintiff
AND
UGL ENGINEERING PTY LIMITED
Defendant

Catchwords:

Practice and procedure - Application for discovery - Whether cost of providing discovery substantial and disproportionate - Delay to matter

Legislation:

N/A

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff	:	No Appearance
Defendant	:	No Appearance

Solicitors:

Plaintiff	:	Pinsent Masons (Australia) - Perth
Defendant	:	Jackson McDonald

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

Roe v The State of Western Australia [2013] WASC 130
Singh v Friedman [2013] WASC 78

ALLANSON J:

Introduction

The parties in this action have been able to resolve most issues regarding discovery by agreement. These reasons consider those issues that remain.
The background to the dispute can be briefly outlined.
The plaintiff, Complete Power Solutions Pty Ltd (CPS), and the defendant, UGL Engineering Pty Limited (UGL), are companies that provide services to the mining and construction industry.
From about late 2011, UGL was appointed as a contractor for a Fortescue Metal Group Project (FMG Project) in the Pilbara area of Western Australia.
CPS quoted to provide works and services on the FMG Project, and commenced works in or about April 2012. One of the fundamental disputes between the parties regards whether CPS and UGL entered a contract under which CPS provided the relevant works and services. CPS claims that it provided works and services for which it had quoted, and also makes an Additional Works Claim for freight and civil works. UGL contends that those works and services were provided pursuant to, and were governed by, the terms of a contract or contracts between them, including terms that would bar any claim that was not brought in accordance with UGL's standard terms.
If CPS's claims are not governed by contract, UGL puts CPS to the proof of the nature and extent of the alleged works performed by CPS and the reasonable value of the supply alleged.
The number of potentially relevant documents, including electronic communications, is large. Discovery is being given by categories for which the parties agreed category description, project filter, date range, and applicable search terms. The parties agreed 12 categories, most of which have sub-categories. As at 13 May 2021, the defendant had provided its solicitors with 490,890 documents, most of them emails. Key word searches in accordance with the agreed discovery categories captured over 73,000 documents, 20,043 being potentially discoverable (after removing duplications).[1] The task of reviewing documents is, understandably, long and expensive.
[1] Affidavit of Anthony David Bereyne sworn 13 May 2021 [8], [13] - [14]; affidavit of Anthony David Bereyne sworn 23 June 2021 [11].
CPS seeks discovery of certain third party documents, including emails sent to or from FMG or Calibre.[2] The two categories in dispute are identified as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] WASC 350
Decision Date

CaseChat Overview and Summary

In Complete Power Solutions Pty Ltd v UGL Engineering Pty Limited, the plaintiff sought discovery of certain documents from the defendant in relation to a dispute over works and services provided under a contract or contracts between the parties. The defendant objected to the cost and delay associated with providing the discovery, arguing that the documents sought were not relevant to the pleaded issues and would provide little or no forensic benefit. The court had to decide whether the defendant was required to provide the discovery in the terms sought by the plaintiff.

The court considered the principles of discovery under the Rules of the Supreme Court 1971 (WA), and the objects set out in O 1 r 4A and r 4B. The court also considered the relevant categories of documents sought, including communications between the parties and third parties in respect of freight, trenching, rock drilling and ground disturbance works, and communications between the defendant and FMG in respect of the works undertaken by the plaintiff. The court considered the submissions of both parties, and the evidence provided by the defendant's solicitor regarding the volume of documents captured by searches under the agreed discovery protocol, and the time and costs likely to be incurred in reviewing the potentially discoverable documents.

The court found that the burden of discovery could not be overlooked, but that the additional costs of discovery of the third party documents, on a claim greater than $4 million, was not so disproportionate as to itself be a reason to limit the discovery. The court also found that the decisive question was whether the third party documents sought by the plaintiff were sufficiently relevant to the pleaded issues, so that the forensic benefit was not outweighed by the cost and delay. The court was satisfied that discovery should be given in the terms sought by the plaintiff, and that the defendant was required to provide the discovery.

The court granted the plaintiff's application for discovery of the third party documents in the terms sought, and ordered the defendant to provide the documents within 14 days of the judgment.

Orders