David William Pallas & Julie Ann Pallas as trustees for the Pallas Family Superannuation Fund v Lendlease Corporation Limited (No 2)

[2025] NSWSC 7

Supreme Court

New South Wales

Medium Neutral Citation:

David William Pallas & Julie Ann Pallas as trustees for the Pallas Family Superannuation Fund v Lendlease Corporation Limited (No 2) [2025] NSWSC 7

Hearing dates:

23 August 2024; written submissions dated 20 September 2024, 8 October 2024 and 18 October 2024

Date of orders:

28 January 2025

Decision date:

28 January 2025

Jurisdiction:

Equity - Commercial List

Before:

McGrath J

Decision:

(1)   The plaintiffs’ notice to produce dated 24 June 2024 be set aside.

(2)   The plaintiffs pay the defendants' costs of the notice of motion filed 23 July 2024.

(3)   The plaintiffs must file and serve their lay and expert evidence in reply in the proceedings within 10 weeks of the date of these orders.

Catchwords:

CIVIL PROCEDURE — notice of motion seeking to set aside notice to produce issued by the plaintiffs — Uniform Civil Procedure Rules 2005 (NSW) rr 21.9 and 21.10 — extensive and expensive discovery already provided by defendants — documents sought not relevant to fact in dispute in pleaded case — documents being sought in attempt to lead expert evidence not properly in reply — relevance of overriding purpose and other considerations in ss 56, 57 and 58 of the Civil Procedure Act 2005 (NSW) — repeated non-compliance by plaintiffs with case management and timetabling orders and directions leading to procedural delays — where production in compliance with notice would involve substantial burden in terms of time, effort and expense — injustice to defendants — HELD — notice to produce set aside

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss 56, 57, 58

Uniform Civil Procedure Rules 2005 (NSW) rr 21.9, 21.10

Cases Cited:

Azzi v Volvo [2006] NSWSC 283

David William Pallas & Julie Ann Pallas as trustees for the Pallas Family Superannuation Fund v Lendlease Corporation Ltd (2023) 114 NSWLR 81; [2024] NSWCA 83

Foord v Brock [2005] NSWCA 156

Health Administration Corporation v Toll Global Forwarding Pty Ltd [2024] NSWSC 285

Lawrence v Sammut [2022] NSWSC 344

Lendlease Corporation Limited v David William Pallas and Julie Ann Pallas as trustees for the Pallas Family Superannuation Fund [2024] HCASL 191

Loulach Developments Pty Ltd v Roads and Maritime Services (No 2) [2018] NSWSC 1465

Norris v Kandiah [2007] NSWSC 1296

Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869

Roe d Trimlestown v Kemmis (1843) 9 Cl & Fin 749

Sanrus Pty Ltd v Monto Coal 2 Pty Ltd (No 4) [2019] QSC 199

Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145

Category:

Procedural rulings

Parties:

David William Pallas & Julie Ann Pallas as trustees for the Pallas Family Superannuation Fund (First Plaintiff/Respondent)
Martin John Fletcher (Second Plaintiff/Respondent)
Lendlease Corporation Limited (First Defendant/ Applicant)
Lendlease Responsible Entity Ltd as responsible entity for Lendlease Trust (Second Defendant/ Applicant)

Representation:

Counsel:
A Edwards (First and Second Plaintiffs/Respondents)
S Mirzabegian SC and D Habashy (First and Second Defendants/Applicants)

Solicitors:
Maurice Blackburn (First and Second Plaintiffs/ Respondents)
Herbert Smith Freehills (First and Second Defendants/Applicants)

File Number(s):

2019/00122037

Publication restriction:

Nil

TABLE OF CONTENTS

JUDGMENT

INTRODUCTION

PROCEDURAL HISTORY AND RELEVANT FACTUAL BACKGROUND

The principal proceedings and the central allegations

Discovery provided by the defendants

Issues with the CLS and service of the plaintiffs’ lay and expert evidence

Service of the defendants’ lay and expert evidence

Failure of the plaintiffs to serve reply evidence

Defendants’ application for determination of a separate question regarding class closure

Plaintiffs’ requests for production of further documents and correspondence between the parties

The Original NtP

Work and costs required to produce the documents sought in the Original NtP

The notice of motion

Subsequent correspondence

The Alternative NtPs

Work and costs required to produce the documents sought in the Alternative NtPs

Summary of relevant allegations in the ACLS

Summary of relevant defences in the ACLR

Summary of experts’ reports

Evidence foreshadowed from Mr Thorpe

LEGAL PRINCIPLES

SUBMISSIONS

The Original NtP

Defendants

Plaintiffs

Defendants in reply

The Alternative NtPs

Defendants

Plaintiffs

Defendants in reply

Costs

Costs of compliance

Costs of the defendants’ application

Form of orders sought

CONSIDERATION

ORDERS

JUDGMENT

INTRODUCTION

1. This is an application by the defendants, Lendlease Corporation Limited (an international property and infrastructure company listed on the Australian Securities Exchange (ASX)) and Lendlease Responsible Entity Ltd as responsible entity for Lendlease Trust (LRE), to set aside a notice to produce dated 24 June 2024 (Original NtP) issued by the plaintiffs, David William Pallas & Julie Ann Pallas as trustees for the Pallas Family Superannuation Fund (first plaintiff) and Martin John Fletcher (second plaintiff), in these proceedings.

2. The application came before me for hearing on 23 August 2024, during which the plaintiffs indicated that they would recast the Original NtP to seek to overcome many of the objections raised by the defendants to the Original NtP. The plaintiffs then reformulated the Original NtP in two proposed alternative forms which were submitted to the defendants on 30 August 2024 (Alternative NtPs): a very detailed alternative version (Detailed NtP) and a summarised alternative version (Summary NtP).

3. In submissions and evidence provided to me across September and October 2024, the defendants maintained their objections to the Original NtP and also objected to the Alternative NtPs, saying that they fail to cure the deficiencies in the Original NtP, and that the court should not order the production of documents under any form of the notice to produce. The defendants also say that if production is ordered pursuant to any part of the Original NtP or the Alternative NtPs, the plaintiffs should be ordered to pay the defendants’ substantial costs of compliance and also pay the defendants’ costs of this application.

4. The plaintiffs press for production of the documents under the Original NtP, saying that the defendants’ costs and time to produce documents in accordance with it would be lower than under either of the Alternative NtPs.

5. In summary, for the reasons set out below, I have concluded that the Original NtP should be set aside and that it is not necessary to deal with the issue of any production of documents under either of the Alternative NtPs.

PROCEDURAL HISTORY AND RELEVANT FACTUAL BACKGROUND

6. To understand the arguments made in relation to the application to set aside the Original NtP and the defendants’ continued objections to the Alternative NtPs, it is necessary to set out the procedural history and the relevant factual background of the proceedings.

The principal proceedings and the central allegations

7. On 18 April 2019, the first plaintiff filed the summons commencing the proceedings against the defendants. The first plaintiff brought the proceedings as a class action on behalf of persons who acquired an interest in stapled securities in the defendants during the period 17 October 2017 to 8 November 2018 (Relevant Period). The first plaintiff was represented by Maurice Blackburn Lawyers (MBL).

8. On 6 August 2019, the second plaintiff filed the summons also commencing class action proceedings against the defendants. The second plaintiff was represented by Phi Finney McDonald (PFM).

9. On 21 November 2019, the two proceedings were consolidated pursuant to orders made by Hammerschlag CJ in Eq, including that there would be only one solicitor on the record, and that until agreement as to who that would be was reached, the solicitor then on the record in the proceedings commenced by the first plaintiff (MBL) would assume that role. I understand that PFM later acted for the plaintiffs (from August 2021 to December 2023), following which MBL resumed being the solicitors on the record for the plaintiffs.

10. On 24 December 2019, the plaintiffs filed a Consolidated Commercial List Statement (CLS) and Amended Summons.

11. On 28 February 2020, the defendants filed their Consolidated Commercial List Response (CLR).

12. In short, the allegations in the proceedings concern pre-tax provisions the plaintiffs allege Lendlease should have taken and certain reductions in after-tax profits they allege Lendlease should have made with respect to three construction projects that Lendlease was undertaking as part of its engineering and services business (Engineering Business) within the Relevant Period.

13. During the Relevant Period, the Engineering Business was undertaking the design and/or construction of the following major infrastructure projects (collectively, the Projects):

1. NorthConnex (NCX): a nine-kilometre tunnel connecting the M1 Pacific Motorway to the M2 Hills Motorway in northern Sydney, New South Wales. NCX was undertaken by Lendlease in a 50:50 joint venture with Bouygues Construction Australia Pty Ltd (LLBJV).

2. Gateway Upgrade North (GUN): the widening of, and improvements to, the Gateway Motorway North in Brisbane, Queensland.

3. Kingsford Smith Drive Upgrade (KSD): the widening of, and improvements to, Kingsford Smith Drive in Brisbane, Queensland.

14. The plaintiffs, on behalf of group members, claim that they suffered loss after purchasing securities in the defendants (each representing one ordinary share in Lendlease, stapled to one unit in the Lendlease Trust) at an artificially inflated price when the price of the defendants’ securities dropped following an announcement to the ASX on 9 November 2018.

15. In the latest form of the allegations made (which I will deal with in more detail below), the plaintiffs contend that the defendants breached their continuous disclosure obligations and engaged in misleading or deceptive conduct during the Relevant Period. In particular, the plaintiffs allege that in the Relevant Period, the defendants breached:

1. their obligations of continuous disclosure under s 674(2) of the Corporations Act 2001 (Cth) by failing to disclose to the market, by specified dates, the following information:

1. that the defendants needed to take additional pre-tax provisions, in specified amounts, in the then-current financial period (Provision Information); and

2. that the defendants’ profits for the six months to 31 December 2017 and for the 12 months to 30 June 2018 would be reduced by specified amounts (Profit Information).

2. the statutory prohibitions against misleading and deceptive conduct in s 18 of the Australian Consumer Law and s 12DA of the Australian Securities and Investments Act 2001 (Cth) by allegedly representing to current and prospective investors that improved performance in its Engineering Business was likely; that adequate provisions had been made in relation to its Engineering Business; as to the defendants’ financial performance; and that there was a reasonable basis for making those alleged representations.

16. The Engineering Business was sold by Lendlease in 2020.

Discovery provided by the defendants

17. Since 2020, the defendants have provided extensive discovery to the plaintiffs at considerable cost as follows:

1. Pursuant to court orders made by consent on 13 May 2020 (Original Discovery Orders), between June and December 2020, the defendants produced 40,853 documents across five tranches falling within one or more of eight specified categories in the Original Discovery Orders. Those documents, created and/or dated within the Relevant Period and relating to the Projects, included organisational and/or reporting line charts; minutes, papers and reports; external audit or external project review reports; signed contracts; and final speaking notes or talking points prepared by or for certain officers of Lendlease. In addition, the defendants listed a further 10,767 documents over which claims for privilege were made. The defendants’ costs of collating, reviewing and producing documents in answer to the Original Discovery Orders were in excess of $5.5 million.

2. Between 24 November 2020 and 21 April 2021, in response to various requests by the plaintiffs for further documents made in the context of good faith discussions in relation to document enquiries, the defendants produced a relatively small number of additional documents.

3. On 29 June 2021 and 20 July 2021, following an application made by the plaintiffs on 21 April 2021 which was opposed by the defendants, the court made orders that the defendants provide further discovery (being part of the discovery which had been sought by the plaintiffs) (Further Discovery Orders) on terms that the plaintiffs pay $200,000 for that part of the discovery. On 1 October 2021, in answer to the Further Discovery Orders, the defendants produced a further 15,771 documents falling within one or more of seven specified categories or responding to specified keyword search terms within the mailboxes of four specified custodians. Those documents, dated within the Relevant Period, included notices of delays to the Projects; schedules or registers of variations for the Projects; schedules or registers of extensions of time for the Projects; schedules or registers of notices of dispute for the Projects; schedules or registers of inspections and status of completion for the Projects; and presentations, minutes, agendas, papers and notes in relation to team workshops conducted on the Projects. In addition, a further 2,463 documents were listed by the defendants over which claims of privilege were made.

4. Since 1 October 2021, the defendants have produced a small number of additional documents to the plaintiffs as and when documents captured by the Original Discovery Orders and Further Discovery Orders were identified.

5. On 18 October 2021, the defendants served the first version of their verified list of documents. Between 13 November 2021 and 3 December 2021, the parties exchanged correspondence in which the plaintiffs sought additional details regarding the list of documents.

6. On 3 December 2021, the defendants agreed to provide a supplementary list of documents which dealt with privileged documents, while denying that the verified list of documents served on 18 October 2021 was non-compliant.

7. On 18 February 2022, the defendants provided an unverified version of the supplementary list of documents to the plaintiffs.

8. On 9 March 2022, the defendants provided the final verified list of documents to the plaintiffs.

18. Between 22 July 2022 and 2 September 2022, the parties engaged in lengthy correspondence regarding the plaintiffs’ assertions that the defendants’ discovery was deficient because there were no documents showing on a monthly, quarterly or other basis, how the projected losses on each of the Projects were accounted for in the defendants’ accounts as between provisions in the Projects and provisions held outside the Projects. The plaintiffs sought these further documents from the defendants to assist the plaintiffs’ experts. The defendants rejected the suggestion that they had not complied with their discovery obligations and provided guidance on the location of relevant documents within the discovery. Some of this correspondence is referred to further below.

19. The unchallenged evidence of the defendants is that over 4.6 million documents were collated and processed into the defendants’ solicitors’ discovery database (known as Relativity) to enable the defendants to comply with the Original Discovery Orders and the Further Discovery Orders.

Issues with the CLS and service of the plaintiffs’ lay and expert evidence

20. On 22 February 2022, following completion of discovery in accordance with the Original Discovery Orders and the Further Discovery Orders, the solicitors for the defendants, Herbert Smith Freehills (HSF), wrote to the then solicitors on the record for the plaintiffs, PFM. In that letter, HSF raised concerns they held regarding the CLS, including as to the articulation of the plaintiffs’ case, identifying what it considered to be deficiencies (principally, lack of specificity and precision) in the plaintiffs’ allegations as formulated, and expressing their view that these deficiencies rendered parts of the CLS — in particular, paragraphs 22, 50 and 51 — liable to be struck out. Objection was taken mainly to “imprecision” in the definitions of the alleged “Project Information” and “Unreliable Performance Information” in paragraphs 50 and 51, by reason of which, HSF said, the defendants were unable to identify what information the plaintiffs allege should have been disclosed to the ASX and when.

21. HSF’s letter of 22 February 2022 concluded by stating that given that extensive discovery had been given by the defendants to date, the plaintiffs could reasonably be expected to be in a position to clearly articulate their case. HSF sought confirmation by 7 March 2022 that a proposed amended commercial list statement addressing the identified deficiencies would be provided by a date not later than the next directions hearing (which was fixed for 18 March 2022), and noted that the defendants reserved their rights to file and serve a notice of motion to strike out the defective aspects of the CLS.

22. On 14 March 2022, PFM sent a letter to HSF responding to correspondence from HSF (including its letter of 22 February 2022) and enclosing draft proposed orders, including provision for the plaintiffs to serve their lay and expert evidence by 14 July 2022 and, subsequent to that, for the plaintiffs to serve a proposed amended commercial list statement by 4 August 2022.

23. On 16 March 2022, Hammerschlag J (as the Chief Judge in Equity then was) made orders in the proceedings by consent directing the plaintiffs to serve any lay and expert evidence by 4 August 2022 and to serve a proposed amended commercial list statement by 25 August 2022, with the defendants to confirm in writing to the plaintiffs whether they consented to or opposed leave being granted to the plaintiffs to file it by 15 September 2022 (March 2022 orders).

24. In the lead-up to and following the dates fixed by the March 2022 orders, the parties exchanged correspondence as follows:

1. On 22 July 2022, PFM wrote to HSF in relation to the plaintiffs’ expert evidence, indicating that in preparing that evidence, an apparent lack of documents (provisioning documents) showing, on a monthly, quarterly or other basis, how the projected losses on each of the Projects were accounted for in Lendlease’s accounts (as between provisions in the Projects and provisions held outside the Projects) had been identified. PFM asserted that no such documents had been produced by the defendants as part of their discovery, in circumstances where the plaintiffs would have expected such documents to be captured by the categories prescribed in the Original Discovery Orders. PFM stated that irrespective of whether such documents were so captured, the plaintiffs’ expert considered that those documents existed, would be readily identifiable by the defendants, and would (if produced to the plaintiffs) avoid substantial wasted costs from evidence having to be redone if such provisioning documents were only to emerge as part of the defendants’ evidence. PFM requested production of the provisioning documents, and noted that this issue, affecting the preparation of their expert evidence, would likely mean the timetable for the provision of evidence would need to be adjusted.

2. On 31 July 2022, PFM wrote to HSF noting, with regret, the plaintiffs’ inability to meet the 4 August 2022 deadline for the provision of their evidence, citing illness and unavailability among the plaintiffs’ experts, the interrelated nature of the evidence being prepared, and other logistical issues. PFM also referred to the issue of the provisioning documents raised in their 22 July 2022 letter, to which HSF had provided an answer via email on 26 July 2022 with an estimated timeframe for a substantive response from the defendants to the plaintiffs’ request. PFM proposed a new timetable in light of this estimated timeframe, enclosing draft orders extending the deadline for service of the plaintiffs’ lay and expert evidence to 30 September 2022 and the deadline for service of a proposed amended commercial list statement to 21 October 2022 (an extension of approximately eight weeks to the timetable fixed by the March 2022 orders).

1. On 1 August 2022, HSF wrote to PFM in response to PFM’s letters of 22 and 31 July 2022. HSF expressed concern at the timing of the plaintiffs’ request in respect of the provisioning documents, being nearly two years after discovery was first given by the defendants, two weeks before the plaintiffs’ evidence deadline, and in circumstances where the plaintiffs could be expected to have substantially progressed their review of the discovery already given. HSF also rejected any suggestion that the defendants’ discovery had been incomplete, deficient or otherwise not in compliance with their obligations, stating that “[t]he fact that your clients have belatedly sought to suggest they cannot identify particular documents within the extensive discovery provided is not a matter caused by our clients”. The letter then provided a substantive response to the plaintiffs’ enquiries, setting out guidance in relation to the provisioning documents including by directing PFM to particular “instructive” categories of documents (reporting materials) that were already contained in the defendants’ discovery and that disclosed the relevant reporting structures of the Engineering Business.

2. On 2 August 2022, HSF sent a further letter to PFM in relation to the draft orders attached to PFM’s letter of 31 July 2022 proposing an extension of the time for service of the plaintiffs’ expert evidence, requesting a more thoroughgoing explanation of the causes of and reasons for the delay, the late communication to the defendants of that delay, and the need for an eight-week extension. HSF also rejected PFM’s characterisation of the matter of the provisioning documents as a basis for seeking the proposed extension.

25. The plaintiffs failed to serve their evidence by 4 August 2022 in accordance with the March 2022 orders.

26. On 8 August 2022, PFM wrote to HSF in response to HSF’s letter of 2 August 2022. PFM observed that the plaintiffs had accommodated similar delays in connection with the defendants’ production of documents and provision of further discovery (including between December 2020 and June 2021), and that this was important background to consider in any debate about the orderly and efficient conduct and progress of the proceedings. PFM then referred to the following matters by way of explanation for the delays encountered by the plaintiffs in the preparation of their evidence:

1. The plaintiffs’ main liability expert, on whose work the completion of the plaintiffs’ other experts’ work depends, was first briefed in May 2021, and since then the brief had been progressively updated as further discovery was given by the defendants and as the expert himself made requests for further information.

2. The plaintiffs’ main liability expert had been affected by illness and was also unavailable between January 2022 and April 2022 owing to overseas court commitments in another matter. At the time the March 2022 orders were agreed, the liability expert considered that the timeframe would be sufficient; due to intervening events including illness, however, that turned out not to be the case.

3. The task of the plaintiffs’ main liability expert involved understanding, analysing and developing discrete opinions on each of the Projects, and that had taken more time than anticipated.

27. On 17 August 2022, HSF wrote to PFM, stating that the defendants did not oppose the proposed orders attached to PFM’s letter of 31 July 2022, on the basis that the defendants be afforded a commensurate period (towards which any holiday or court recess period would not count) within which to prepare their lay and expert evidence.

28. On 19 August 2022, PFM sent an email to HSF noting, among other things, the plaintiffs’ acceptance that the entitlement of the defendants to a commensurate period of time to prepare their evidence would be a relevant consideration when it came time to formulate timetabling orders in respect of the same.

29. The plaintiffs did not serve a proposed amended commercial list statement by the 25 August 2022 deadline prescribed by the March 2022 orders.

30. On 29 August 2022, Ball J made orders by consent vacating the March 2022 orders in part and directing the plaintiffs to serve any lay and expert evidence by 30 September 2022 and to serve a proposed amended commercial list statement by 21 October 2022, with the defendants to confirm in writing to the plaintiffs whether they consented to or opposed leave being granted to the plaintiffs to file it by 11 November 2022 (August 2022 orders).

31. On 29 September 2022 (the day before the deadline fixed by the August 2022 orders for service of the plaintiffs’ evidence), PFM wrote to HSF enclosing draft proposed orders and requesting, among other things, a further four-week extension to that deadline. PFM again cited the involved nature of the task to be undertaken by the plaintiffs’ main liability expert, and the fact that his opinions would furnish the assumptions to be provided to the plaintiffs’ other experts. PFM raised, once more, the matter of the provisioning documents, stating that, “in the absence of clear documentation of the reconciliation of such provisions in your clients’ accounts on a monthly, quarterly or other basis, the expert has been required to consider a large volume of material and make assumptions on the provisions being allocated, applied and raised during the Relevant Period” and noting that that process was taking longer than anticipated. Finally, PFM pointed to the engagement of two senior members of the plaintiffs’ counsel team in long-running trials at various times throughout August and September 2022 as a source of additional delay in completing the plaintiffs’ evidence. The enclosed draft proposed orders made provision for the plaintiffs’ to serve their evidence by 28 October 2022 and a proposed amended commercial list statement by 18 November 2022 (proposed September 2022 orders).

32. The plaintiffs did not serve their evidence by the 30 September 2022 deadline fixed by the August 2022 orders.

33. On 13 October 2022, having sought (and PFM having refused to provide) further information regarding the plaintiffs’ delay to enable the defendants to consider the plaintiffs’ proposed four-week extension, HSF sent a letter to PFM enclosing proposed amended draft orders. In material respects, those proposed amended orders retained the form of the proposed September 2022 orders.

34. On 25 October 2022, PFM sent an email to HSF stating that while the plaintiffs’ lay and expert evidence was substantially advanced, due to expert unavailability that week and the following week, the plaintiffs now anticipated being in a position to serve their lay and expert evidence by 9 November 2022. Attached to that email were draft proposed orders extending the time for service of the plaintiffs’ lay and expert evidence to 9 November 2022 and service of a proposed amended commercial list statement to 30 November 2022. PFM emailed HSF with a further draft set of orders in substantially identical form on 26 October 2022.

35. The plaintiffs did not serve their evidence by the 28 October 2022 deadline proposed in accordance with the proposed September 2022 orders.

36. On 28 October 2022, HSF wrote to PFM responding to PFM’s previous correspondence, including their letter of 25 October 2022, noting that the plaintiffs now sought (cumulatively) a 13.5-week extension to the original deadline for service of their evidence of 4 August 2022, and stating that PFM had failed to address HSF’s questions and concerns regarding the reasons for these delays. HSF stated that in order to ensure the defendants were not further disadvantaged by having less time to review the plaintiffs’ evidence and proposed amended commercial list statement, they agreed to the draft form of orders attached to PFM’s email dated 26 October 2022.

37. On 3 November 2022, Ball J made orders by consent vacating the August 2022 orders in part and directing the plaintiffs to serve any lay and expert evidence by 9 November 2022 and to serve a proposed amended commercial list statement by 30 November 2022, with the defendants to confirm in writing to the plaintiffs whether they consented to or opposed leave being granted to the plaintiffs to file it by 24 February 2023 (November 2022 orders).

38. The plaintiffs did not serve their evidence by the 9 November 2022 deadline fixed by the November 2022 orders.

39. On 10 November 2022 at 1:51pm, PFM served the expert report of Peter Badala via email to HSF. That email advised that the balance of the plaintiffs’ expert and lay evidence was currently being finalised and would be served upon its completion.

40. On 10 November 2022 at 2:47pm, HSF sent an email to PFM which confirmed receipt of Mr Badala’s report and requested that PFM advise when the remaining evidence would be served. No response to this request was provided.

41. On 17 November 2022, HSF sent an email to PFM requesting an explanation for the further delay in serving the remainder of the plaintiff’s evidence and confirmation that the plaintiffs would serve their proposed amended commercial list statement by 30 November 2022 in accordance with the November 2022 orders.

42. On 18 November 2022, PFM sent an email to HSF serving two further expert reports of Owain Stone and Professor Mark Zmijewski respectively and stating that the plaintiffs had one remaining piece of lay witness evidence to serve which would occur as soon as possible the following week.

43. On 22 November 2022, PFM sent an email to HSF stating that they expected to serve the plaintiffs’ final lay witness statement by 25 November 2022 and were working towards serving the proposed amended commercial list statement by 30 November 2022.

44. On 25 November 2022, PFM sent an email to HSF attaching by way of service one lay witness affidavit of Martin Fletcher.

45. On 28 November 2022, HSF sent an email to PFM requesting confirmation that all of the plaintiffs’ evidence in chief had been served and that the plaintiffs would serve the proposed commercial list statement by 30 November 2022.

46. On 30 November 2022, PFM sent an email to HSF which indicated that the plaintiffs had served the totality of their evidence in chief but regrettably would not be able serve the proposed amended commercial list statement until 21 December 2022, due in part to counsel availability.

47. On 1 December 2022, HSF sent a letter by email to PFM stating that it was the defendants’ view that the court should be made aware of the status of the matter and the plaintiffs’ repeated failure to meet court-ordered deadlines. HSF also said that the defendants would exercise their liberty to apply and seek to relist the matter for directions on 9 December 2022.

48. On 2 December 2022, HSF sent an email to the court requesting that the matter be listed for directions on 9 December 2022.

49. On 9 December 2022, on the application of the plaintiffs, Ball J made an order extending the time for the plaintiffs to serve a proposed amended commercial list statement to 21 December 2022 (December 2022 orders). During that hearing, Ball J informed counsel for the plaintiffs:

… if the document is not served by then, your client should understand that they run a real risk for leave to file the amended document will be refused because of the lateness.

50. The plaintiffs did not serve a complete version of the proposed amended commercial list statement by the 21 December 2022 deadline fixed by the December 2022 orders. Instead, PFM sent an email to HSF which attached an incomplete version of the proposed amended commercial list statement (first proposed ACLS). The first proposed ACLS did not include a document identified as annexure A which was repeatedly referred to in it. In the email, PFM stated that they expected to be able to provide the document identified as annexure A in the week commencing 9 January 2023.

51. On 22 December 2022, HSF sent a letter by email to PFM noting that the first proposed ACLS appeared to be materially incomplete and reserving the defendants’ rights, including their right to oppose leave being granted to the plaintiffs to file the first proposed ACLS.

52. The plaintiffs did not provide the defendants with a copy of annexure A to the first proposed ACLS in the week commencing 9 January 2023.

53. On 17 January 2023, HSF sent an email to PFM requesting that a complete copy of the first proposed ACLS, including annexure A, be provided immediately and reserving the defendants’ rights, including to relist the matter and oppose leave being granted to the plaintiffs to file an amended pleading.

54. On 18 January 2023, PFM sent an email to HSF which attached a revised copy of the first proposed ACLS and a proposed amended summons. The revised first proposed ACLS included annexure A and further additional amendments within it, said by PFM to be entirely non-substantive in nature (second proposed ACLS). Annexure A was a 280-page document comprising over 350 paragraphs.

55. On 26 January 2023, HSF sent a letter dated 25 January 2023 by email to PFM which enclosed proposed draft orders. In the letter, HSF requested an explanation for the delay in providing the second proposed ACLS and sought an extension to the time for the defendants to indicate whether they consented to or opposed leave being granted to the plaintiffs to file the second proposed ACLS.

56. On 1 February 2023, PFM sent a letter to HSF stating that the plaintiffs consented to the orders proposed in HSF’s letter of 25 January 2023.

57. On 2 February 2023, HSF sent an email to the court in agreed terms with a copy of proposed consent orders.

58. On 3 February 2023, the court sent an email to the parties confirming that the proposed orders had been made in chambers. Those orders vacated the November 2022 orders in part and ordered the defendants to confirm in writing to the plaintiffs whether they consented to or opposed leave being granted to the plaintiffs to file the second proposed ACLS by 31 March 2023 (February 2023 orders).

59. On 13 March 2023, HSF sent a letter by email to PFM raising particular issues, including seeking clarification of a number of matters in the second proposed ACLS.

60. By letter dated 17 March 2023, PFM provided responses to a number of the defendants’ requests for clarification, including an indication that the plaintiffs could provide by 29 March 2023 an amended proposed ACLS which identified the paragraphs of annexure A relied upon.

61. On 23 March 2023, HSF sent an email to PFM stating that any further suggested amendments to the second proposed ACLS be made after 31 March 2023, being the date by which the defendants were required to confirm their position in accordance with the February 2023 orders.

62. On 29 March 2023, PFM sent an email to HSF attaching a further revised version of the second proposed ACLS (third proposed ACLS) which addressed a number of matters that had been raised in HSF’s letter of 13 March 2023.

63. On 31 March 2023, in accordance with the February 2023 orders, HSF sent a letter by email to PFM in which it stated that the defendants opposed leave being granted to the plaintiffs to file the second proposed ACLS or the third proposed ACLS and set out in detail the deficiencies in those documents.

64. On 11 April 2023, PFM sent a letter by email to HSF stating that the plaintiffs would be prepared to draft a further revised pleading and proposed a timetable for the hearing of the plaintiffs’ application for leave to amend the CLS.

65. On 12 April 2023, HSF sent an email to PFM with attached proposed consent orders making amendments to the plaintiffs’ proposed timetable for the hearing of their application for leave to amend the CLS.

66. On 13 April 2023, by consent, the court made orders fixing a timetable for the hearing of the plaintiff’s application for leave to amend the CLS.

67. On 26 April 2023, PFM sent an email to HSF attaching the notice of motion (which had been filed that day) and a supporting affidavit to which was annexed a proposed amended consolidated summons and a further revised version of the third proposed ACLS (fourth proposed ACLS) that the plaintiffs were seeking leave to file. The fourth proposed ACLS contained a significant number of substantive changes additional to those which were contained in the third proposed ACLS.

68. On 2 May 2023, PFM sent a letter by email to HSF referring to the fourth proposed ACLS which they stated had been prepared to address at least some of the defendants’ criticisms of previous iterations of its list statement. The letter also stated that its purpose was to summarise the main changes that had been made in the fourth proposed ACLS.

69. On 26 May 2023, the plaintiffs’ application for leave to amend the CLS came before Stevenson J for its first return. Stevenson J made orders listing the application for hearing on 14 June 2023 and requiring the parties to confer and agree on a timetable for the production of a Redfern Schedule of objections and responses.

70. On 30 May 2023, PFM and HSF agreed on a timetable for the exchange and filing of the Redfern Schedule.

71. On 2 June 2023, HSF provided PFM with the defendants’ objections for the Redfern Schedule.

72. On 9 June 2023, HSF received an email from PFM which attached the Redfern Schedule with the plaintiffs’ responses to the defendants’ objections and a further proposed amended commercial list statement (fifth proposed ACLS).

73. Following correspondence between the parties on 13 June 2023, the hearing of the plaintiffs’ application for leave to amend the CLS was adjourned to 21 June 2023 to allow time for the defendants to consider the fifth proposed ACLS.

74. The parties’ counsel then conferred in relation to the fifth proposed ACLS.

75. On 19 June 2023, PFM sent an email to HSF which attached a further proposed amended commercial list statement (sixth proposed ACLS), said to contain a further set of amendments to address the defendants’ concerns in full, and proposed orders in relation to the filing of the sixth proposed ACLS and the filing of the parties’ evidence.

76. On 20 June 2023, PFM wrote to the Associate to Stevenson J with the consent of the defendants indicating that the parties had resolved the matters the subject of the Redfern Schedule and attaching proposed consent orders.

77. On 21 June 2023, Stevenson J made orders vacating the 21 June 2023 listing and granting leave to the plaintiffs to file and serve the amended summons in the form proposed on 26 April 2023 and the sixth proposed ACLS.

78. On 26 June 2023, PFM provided HSF with the amended summons and amended commercial list statement (ACLS).

79. On 27 June 2023, the plaintiffs filed the amended summons and the ACLS, which is the latest and current iteration of their claims against the defendants.

Service of the defendants’ lay and expert evidence

80. On 30 June 2023, Ball J made the following orders (June 2023 orders):

1. the defendants file and serve their amended commercial list response to the ACLS by 8 September 2023;

2. the defendants file and serve any lay evidence by 15 December 2023;

3. the defendants file and serve any expert evidence by 16 February 2024; and

4. the plaintiffs file and serve any lay and expert evidence in reply by 18 May 2024.

81. On 8 September 2023, in accordance with the June 2023 orders, HSF sent an email to PFM attaching by way of service the defendants’ amended commercial list response (ACLR).

82. On 12 December 2023, HSF sent an email to PFM advising that the defendants were not in a position to serve their lay evidence by 15 December 2023 in accordance with the June 2023 orders and stating that they required a short extension of one week to 22 December 2023. In the email, HSF noted that the defendants’ lay witnesses had overseas travel and/or work commitments which impacted the finalisation of their statements, that the majority of the defendants’ lay witnesses were no longer employed by the defendants and as such not within the defendants’ control, and that managing availability at that time of year was particularly difficult.

81. On 14 December 2023 at 10:20am, PFM sent an email to HSF noting that the reasons provided in the HSF email of 12 December 2023 did not appear to apply to the entirety of the defendants’ lay witness evidence, and the plaintiffs therefore considered it appropriate for the defendants to serve any lay witness statements which had been sworn/affirmed by 15 December 2023 by that day, with the balance of the defendants’ lay witness evidence to be provided by 22 December 2023. On that basis, the plaintiffs agreed not to seek variation orders in respect of the provision of the defendants’ lay evidence.

82. On 14 December 2023 at 6:20pm, HSF sent an email to PFM stating that the position in HSF’s email of 12 December 2023 applied to the entirety of the defendants’ lay evidence and that the defendants would not be in a position to file any lay witness statements by 15 December 2023. HSF also stated that the defendants were content to file and serve lay witness statements as they were finalised on or before 22 December 2023 and they anticipated that the majority of the evidence would be filed and served on 22 December 2023.

83. On 21 December 2023, HSF sent an email to MBL (who by that time had become the solicitors for the plaintiffs) serving the affidavits of Michelle Letton, Tarun Gupta, David Craig and Ashley Mason and confirming that the defendants anticipated completing service of their lay evidence on 22 December 2023.

84. On 22 December 2023, HSF emailed MBL serving the affidavits of Craig Laslett, Stephen McCann and Sylwia Rutkowska.

85. On 6 February 2024, HSF sent a letter by email to MBL stating that the defendants would not be in a position to serve their expert evidence by 16 February 2024 in accordance with the June 2023 orders and would require a short extension to 8 March 2024. HSF stated that greater time than was anticipated as being necessary at the time the June 2023 orders were made would be needed to progress all of the defendants’ expert evidence, noting that some experts had, and were continuing to have, availability issues. HSF also said that they were not in a position to identify the areas of expertise nor the experts to be advanced by the defendants and they did not anticipate being in a position to file expert evidence incrementally prior to 8 March 2024.

86. On 7 February 2024, MBL sent a letter by email to HSF requesting a more complete explanation for the cause of the delay in the service of the expert evidence so that the plaintiffs could properly consider the defendants’ request for the proposed extension.

87. On 13 February 2024, HSF sent an email to MBL stating that they anticipated leading evidence from each of: a construction expert in answer to Mr Badala’s evidence; an accounting expert in answer to Mr Stone’s evidence; and an economist in answer to Professor Zmijewski’s evidence. HSF also said that a final decision on whether that suite of evidence represented the totality of the defendants’ expert evidence had not yet been made.

88. On 8 March 2024, HSF sent an email to MBL serving the expert reports of Dawna Wright, Dr Sanjay Unni and Mozammel Ali and the second affidavit of Ashley Mason. HSF stated that the defendants intended to file one additional report to complete their expert evidence, being the report of a construction expert in response to Mr Badala’s report, which would be served no later than 15 March 2024. HSF concluded by saying that the defendants would support a commensurate extension of time for the plaintiffs’ reply evidence to cure any prejudice arising from the short delay.

89. On 13 March 2024, MBL sent a letter to HSF stating that they were disappointed regarding the ongoing delay in serving the entirety of the defendants’ expert evidence and that the plaintiffs reserved their position with respect to the delay and the timing for the provision of the plaintiffs’ evidence in reply. MBL requested copies of all documents relied upon or referenced in the defendants’ expert evidence, all underlying workings and calculations for the figures, tables and exhibits to each of the expert reports, and separate indices of all documents provided to each of the defendants’ expert witnesses.

90. On 13 March 2024 at 8:07pm, HSF sent an email to MBL confirming receipt of their letter, noting that they had already agreed to accommodate a commensurate extension of time for provision of any reply evidence by the plaintiffs (not due until 18 May 2024) and that the plaintiffs did not point to any prejudice in the delay in the service of defendants’ expert evidence.

91. On 13 March 2024 at 10:48pm, HSF sent a further email to MBL with a link to the expert report of David Gibson and the appendices to it, by way of service.

92. On 26 March 2024, HSF sent a letter by email to MBL responding to MBL’s email of 13 March 2024, including by stating that all documents relied on or referenced in Mr Gibson’s report:

1. had previously been produced by the parties and were referred to by their document IDs in Mr Gibson’s report; or

2. were included either as appendices to Mr Gibson’s report or as appendices to the report of Mr Badala.

Failure of the plaintiffs to serve reply evidence

95. The parties then engaged in further correspondence concerning the provision of further information by the defendants in relation to their experts’ reports.

96. As part of this correspondence, on 16 May 2024, HSF sent a letter by email to MBL which, amongst other things, noted that the plaintiffs’ reply evidence was due to be filed on 18 May 2024 and referred to the HSF letter of 8 March 2024 in which they had indicated that they would support an extension of the deadline for service of the plaintiffs’ reply expert evidence commensurate with the additional time taken by the defendants to complete their expert evidence, being three weeks and five days. HSF concluded by asking the plaintiffs to confirm whether they intended to take this additional time and, if so, that the plaintiffs’ reply expert evidence would be filed by 13 June 2024.

97. Attached to HSF’s email of 16 May 2024 was an addendum to the report of Dr Sanjay Unni dated 13 May 2024, which corrected a document referred to in a footnote in the earlier report of Dr Unni.

98. No response to HSF’s letter of 16 May 2024 was received by HSF.

99. The plaintiffs did not serve any lay or expert evidence in reply by the 18 May 2024 deadline fixed by the June 2023 orders.

100. On 22 May 2024, HSF sent an email to MBL referring to HSF’s letter of 16 May 2024, noting that they had not received any response to it and stating that HSF assumed that the plaintiffs intended to take additional time commensurate with the additional time taken by the defendants to complete their expert evidence. HSF sought confirmation that the plaintiffs’ reply evidence would be filed and served by 13 June 2024.

101. No response was received to HSF’s email of 22 May 2024.

102. On 29 May 2024, HSF sent an email to MBL noting that no response had been received to HSF’s letter of 16 May 2024 or HSF’s email of 22 May 2024 and stating that, absent a response, the defendants had organised their resources to receive the plaintiffs’ reply evidence, if any, by 13 June 2024.

103. On 13 June 2024, being the date that the defendants had indicated they expected to receive the plaintiffs’ reply evidence, MBL sent an email to HSF stating:

The plaintiffs will not be filing and serving their reply evidence today. We will write to you shortly regarding a proposed timetable.

104. The plaintiffs have not provided any proposed timetable for the service of their reply evidence.

Defendants’ application for determination of a separate question regarding class closure

105. On 30 August 2023, the defendants made an application seeking that the Court of Appeal of this court determine as a separate question this court’s power to approve a notice to group members containing a notation that on settlement the parties would seek an order that any group members who have not registered by a specified date would not be permitted to participate in that settlement.

106. On 13 September 2023, Ball J referred the separate question to the Court of Appeal in the following form:

Notwithstanding the decision in Wigmans v AMP Ltd (2020) 102 NSWLR 199 and having regard to the decision in Parkin v Boral Ltd (2022) 291 FCR 116, does the Supreme Court of NSW have power pursuant to sections 175(1), 175(5) and 176(1) of the Civil Procedure Act 2005 (NSW) (CPA) or otherwise to approve a notice to Group Members of the right to register to participate in any settlement of the proceedings or opt out of the proceedings for the purposes of CPA section 162 containing the following notation: Upon any settlement of this proceeding the parties, alternatively, the defendant, will seek an order, which, if made, has the effect of providing that any Group Member who by a registration date: (i) has not registered; or (ii) has not opted out in accordance with the orders made by the Court, will remain a Group Member for all purposes of this proceeding but shall not, without leave of the Court, be permitted to seek any benefit pursuant to any settlement (subject to Court approval) of this proceeding that occurs before final judgment.

107. On 28 November 2023, a five-member bench of the Court of Appeal heard the defendants’ application, which was not opposed by the plaintiffs.

108. On 17 April 2024, the Court of Appeal delivered judgment answering the separate question in the negative: David William Pallas & Julie Ann Pallas as trustees for the Pallas Family Superannuation Fund v Lendlease Corporation Ltd (2023) 114 NSWLR 81; [2024] NSWCA 83.

109. On 14 May 2024, the defendants filed an application for special leave to appeal to the High Court of Australia, including that the application be progressed and determined with expedition.

110. On 28 May 2024, the plaintiffs filed a response to the application for special leave indicating that they agreed with the defendants’ position in relation to expedition and that they agreed special leave should be granted.

111. On 8 August 2024, the High Court granted special leave to appeal on the condition that the defendants be responsible for the appointment and costs of an appropriate contradictor: Lendlease Corporation Limited v David William Pallas and Julie Ann Pallas as trustees for the Pallas Family Superannuation Fund [2024] HCASL 191.

Plaintiffs’ requests for production of further documents and correspondence between the parties

112. On 21 May 2024, MBL sent a letter by email to HSF stating that in the course of preparing their expert evidence in reply, the plaintiffs’ experts had identified a deficiency in the defendants’ discovery, referring to the fact that the defendants had discovered a number of PDF copies of programs for each of the Projects which lose key context held within the native versions of those programs. MBL stated that:

Section 6.2(b) of the Electronic Exchange Protocol, as agreed between the parties and dated 26 August 2020 (Protocol), requires that Non-Standard Files (as defined in the Protocol) are to be provided in their native electronic format or if not possible, as agreed between the parties. In accordance with the definitions in the Protocol, a Non-Standard File includes electronic files which cannot be converted to Adobe PDF without losing contextual meaning.

113. In the letter, MBL requested that the following program documents be produced in the native file format (e.g. as a .xer file or in any other native file format capable of being reviewed in a P6 platform), without delay:

(a)   the programs attached to each of the original contracts for the Projects; and

(b)   each version of the programs as amended from 1 September 2017 through to 8 November 2018;

(Requested Programs).

114. An “.xer file” is a particular kind of file used to prepare programs for construction projects and is required to be opened using specialist software such as Primavera.

115. Attached to the letter was a schedule said to comprise a non-exhaustive list of the programs previously produced to the plaintiffs in PDF format. MBL stated that, for the avoidance of doubt, to the extent that any of the requested programs had not yet been discovered in PDF form, they requested the native files of those programs on the basis that the Requested Programs are relevant to a fact in issue in the proceedings and the plaintiffs’ experts are required to interrogate those programs to reply to the defendants’ expert evidence.

116. MBL concluded the letter by requesting that the Requested Programs be provided to them by 28 May 2024 and saying that any delay in the provision of the Requested Programs may result in a delay to the plaintiffs’ reply expert evidence.

117. On 28 May 2024, HSF sent a letter by email to MBL rejecting the assertion of a deficiency in the defendants’ discovery and setting out the background to the discovery given in accordance with requirements in the Original Discovery Orders and the Further Discovery Orders, including the documents listed in the schedule to the MBL letter of 21 May 2024. HSF also gave the following further responses:

1. The defendants had produced program documents where they fell within the Original Discovery Orders and the Further Discovery Orders. Those documents had been produced in their original form and had not been subjected to any process to convert them to PDF as part of the discovery.

2. Neither the Original Discovery Orders nor the Further Discovery Orders required the defendants to undertake searches to locate any other versions of those documents which may or may not have existed in a different format.

3. At least 18 .xer files had previously been provided to the plaintiffs in their original .xer format which fell within the discovery categories, and where placeholder PDF documents had instead been provided (due to checks for privileged or sensitive information within their contents being conducted during the review stage), versions of those documents in .xer format would now be provided.

4. Neither the Original Discovery Orders nor the Further Discovery Orders required the defendants to produce project programs as a distinct category of documents (in .xer format or otherwise), and that being so, the plaintiffs’ request in MBL’s letter of 21 May 2024 amounted to a request for further discovery four years after the Original Discovery Orders and three years after the Further Discovery Orders had been made, long after the close of pleadings, more than nine weeks after the defendants filed their expert evidence and near to the deadline for the plaintiffs’ reply evidence.

5. The defendants did not agree that they should be required to undertake searches to produce documents in response to a new category of discovery, rejected the attempt to characterise the request as arising from an alleged deficiency in the defendants’ discovery and rejected the suggestion that this provided any basis for the delay in serving the plaintiffs’ evidence in reply.

6. Any attempt to introduce evidence that is not properly in reply would be opposed by the defendants.

118. On 28 May 2024 at 7:33pm, HSF sent a secure file transfer link to MBL which enclosed .xer documents as referred to in their letter of 28 May 2024.

119. On 7 June 2024, MBL sent a letter by email to HSF asserting that the Requested Programs were relevant to an issue in dispute in the proceedings and necessary for the plaintiffs’ experts to progress their expert evidence. MBL stated that the Requested Programs were required to enable them to address certain assertions made by the defendants’ construction expert, David Gibson, in response to the primary construction expert evidence prepared by Mr Badala that in respect of:

1. the GUN and KSD Projects, Lendlease was predicting the Completion Dates at each Assessment Month based on information known at that time and Mr Badala should have used the Lendlease reported Completion Date at each Assessment Month (for example, [4.5.5] and [4.5.8]); and

2. the NCX Project, Mr Badala’s approach to his Integrated R&O Adjustment failed to take into account LLBJV’s detailed approach to the assessment of the risks and opportunities for that project.

(Assertions)

120. MBL observed that the Assertions went directly to the plaintiffs’ allegations in the ACLS, central to the proceedings and denied by the defendants, that the defendants were aware that additional provisions were required to be taken in respect of the Projects and a corresponding reduction in recorded profits was required.

121. In their letter of 7 June 2024, MBL said that the defendants’ evidence does not explain how the defendants:

1. assessed the Completion Dates for the GUN and KSD Projects as at each Assessment Month based on the relevant information known at each of those times; or

2. how the LLBJV assessed in detail the risks and opportunities for the NCX Project.

122. MBL further stated that:

… the Requested Programs are required for the plaintiffs to address the Assertions, which they are entitled to do. We are instructed that the plaintiffs’ expert evidence in reply cannot efficiently be progressed until those documents are produced. Further, we are instructed that if [the defendants] do not discover the Requested Programs, the plaintiffs’ experts will likely be required to conduct a more laborious, costly and time intensive review process, which importantly for [the defendants], will result in a delay of about 8 weeks in the plaintiffs finalising their expert evidence in reply (from the date the plaintiffs would otherwise have been able to file and serve their evidence).

123. MBL concluded their letter by pressing for the production of the Requested Programs by 14 June 2024 to the extent those documents had not been provided to the plaintiffs to facilitate the efficient conduct of the proceedings, and indicating that if production was not forthcoming, the plaintiffs would issue a notice to produce.

124. On 14 June 2024, HSF sent an email to MBL stating that having regard to the issues raised in MBL’s letter of 7 June 2024 and the timing of the request relative to the status of the proceedings, they would not be able to provide a response within four business days as requested. HSF said that they would provide a response the following week.

125. On 21 June 2024, HSF sent a lengthy letter by email to MBL providing a substantive response to MBL’s letter of 7 June 2024, which HSF described as requesting that the defendants provide:

… discovery of an additional category of documents, being all project programs for each of the NCX, GUN and KSD [Projects] at the time of contract execution and throughout the period 1 September 2017 to 8 November 2018 …

126. In summary, HSF made the following points:

1. The requested documents fell outside the categories of documents which the defendants were required to discover pursuant to the Original Discovery Orders and the Further Discovery Orders.

2. The bulk of the defendants’ discovery was produced in 2020 (more than four years ago), the defendants’ discovery verification affidavit was provided on 15 October 2021 (more than two and half years ago) and an updated affidavit was provided on 9 March 2022 (more than two years ago).

3. The plaintiffs’ expert evidence was served in November 2022, with the primary allegations of the plaintiffs based on the opinions of Mr Badala who did not refer to the need for the Requested Documents in advancing his opinion nor make any reference to the Requested Documents as being relevant to the assumptions he made or the analysis he advanced.

4. The plaintiff substantially amended the pleading based on Mr Badala’s report, with the ACLS filed on 27 June 2023 (a year ago).

5. The defendants served substantial lay and expert evidence (seven lay affidavits in December 2023, one additional lay affidavit in March 2024 and four expert reports in March 2024) in response to the new allegations pleaded in the ACLS and in response to the evidence of the plaintiffs, including that of Mr Badala.

6. The defendants do not accept that the Requested Programs are required for the plaintiffs to address the Assertions from the report of Mr Gibson for the following reasons:

1. It was the plaintiffs’ evidence in Mr Badala’s report served in November 2022 which put the GUN and KSD Project completion dates in issue, not Mr Gibson’s report in response, with Mr Badala indicating that he assessed what the likely completion date for the project was and used that opinion to then formulate his opinion on the indirect costs which he said should have been forecasted as at the relevant assessment month.

2. The plaintiffs prepared and served their evidence in chief, including Mr Badala’s opinions on the KSD and GUN Project forecasted completion dates, without requesting the Requested Programs and therefore the plaintiffs and their experts formed the view that sufficient materials were available to advance those opinions.

3. The completion dates forecast by the defendants for the GUN and KSD Projects are apparent on the face of the project in delivery reports which were provided to and relied upon by Mr Badala in his report and the plaintiffs have not provided any cogent explanation as to why native-format .xer files would provide any relevant additional information necessary to respond to Mr Gibson’s report.

4. In relation to the NCX Project, the analysis conducted by Mr Badala, and responded to by Mr Gibson, focuses on various parts of certain risks and opportunities documents and the plaintiffs have failed to explain why detailed programming information in the native .xer program files are relevant to understanding how the LLBJV assessed the risks and opportunities for the NCX Project, and how the Requested Programs are relevant to any response to Mr Gibson’s opinions on the NCX Project.

5. There is no basis for any suggestion that in order to understand the opinions of Mr Gibson it is necessary to have regard to the Requested Programs, in circumstances where Mr Gibson was briefed with the same documents as Mr Badala. Mr Gibson made clear in his report that his opinion was that Mr Badala “should have used Lendlease’s reported Completion Date at each Assessment Month” as it was based on the project teams’ assessment based on the information known at the time.

6. The plaintiffs are already in possession of all the materials used by Mr Gibson to prepare his report and should be in a position to reply.

7. The request for the Requested Programs is not a request for specific documents but a request for further discovery. The production of the requested documents, assuming they are available, is likely to be a time-intensive and costly exercise for the defendants. The documents were, in some cases, created more than six years ago; they relate to three projects that were completed several years ago; the Engineering Business was sold in 2020 and most personnel are no longer employed by Lendlease; the NCX Project document management platforms were managed by Lendlease’s joint venture partner and are difficult to access; and the requested files are in .xer format which requires specialist software to access and review.

8. The proceedings were commenced more than five years ago, the defendants have been put to very significant expense in defending them and it is well past the time when the plaintiffs should be requesting further discovery. The plaintiffs should be pursuing the alternative course they have identified in MBL’s letter of 7 June 2024, where instead of the Requested Programs being discovered, their own experts should undertake the review process at their own expense. The defendants would resist any notice to produce that is issued.

9. The defendants have significant concerns about the nature of the evidence in reply that the plaintiffs intend to serve. The entirety of the plaintiffs’ pleaded case is referable to the opinions of Mr Badala on the alleged project losses and Mr Badala’s opinions form the basis of the assumptions given to all of the plaintiffs’ other experts and provide the sole basis for the additional provisions that the plaintiffs allege the defendants should have disclosed. The Requested Programs are detailed programming files and Mr Badala has not indicated that he has any specialised knowledge, training or experience in respect of delay or programming issues so it is unclear why they would be necessary to inform any admissible reply evidence from Mr Badala. The defendants’ lay and expert evidence responded to Mr Badala’s opinions. To the extent that Mr Badala seeks to address, purportedly in reply, new matters not previously raised in the plaintiffs’ case in chief or new matters not arising in response to the defendants’ evidence, the defendants will raise issues of prejudice with the court and will oppose any attempt by the plaintiffs to serve any evidence in reply which goes beyond that which the plaintiffs have been ordered to serve.

10. MBL indicated that in the absence of the Requested Programs, the plaintiffs would require an additional eight weeks to serve their evidence in reply, without any explanation. The defendants would agree to allow the plaintiffs an extension until 31 July 2024 to serve their reply evidence, but any evidence in reply to the reports of Ms Wright, Mr Unni and Mr Ali should be able to be served immediately given that the plaintiffs have only indicated that the Requested Programs are relevant to the response to Mr Gibson’s report.

127. HSF also noted that the defendants would resist any notice to produce issued by the plaintiffs and oppose any attempt by the plaintiffs to serve evidence exceeding evidence in reply. They attached to their letter draft consent orders giving effect to the proposed extension of the deadline for service of expert evidence in reply from Mr Badala to 31 July 2024.

The Original NtP

128. On 24 June 2024, MBL sent an email to HSF attaching by way of service the Original NtP. The Original NtP required production of the following four categories of documents by 1 July 2024:

1. The native file of the programs attached to each of the original contracts or deeds for the NCX, GUN and KSD Projects.

2. The native file for each version of the programs for the KSD Project as amended from 1 September 2017 through to 8 November 2018.

3. The native file for each version of the programs for the NCX Project as amended from 1 April 2017 through to 8 November 2018 (including draft versions of the programs for each month to the extent that a final version was not produced during that month).

4. The native file for each version of the programs for the GUN Project as amended on or around 31 January 2018 and 28 February 2018.

129. On 26 June 2024, HSF sent a letter by email to MBL concerning the Original NtP and referring to HSF’s letter of 21 June 2024 in which they had outlined the defendants’ concerns in relation to the request. HSF noted that the plaintiffs had failed to address these concerns. HSF also stated that the notice seeking production within seven days was unreasonable given the scope of the notice and that r 21.11(2)(b) of the UCPR stipulates that a party should be given at least 14 days to respond to any notice to produce. HSF stated that the defendants required a response to HSF’s letter of 21 June 2024 by 28 June 2024 so they could consider their response to the Original NtP. HSF also asked for the time for production under the Original NtP to be extended to 8 July 2024.

130. On 28 June 2024, MBL sent a letter by email to HSF concerning the Original NtP. MBL said that in their letter of 21 May 2024 they had requested production of the Requested Programs and whilst there had been some changes to the scope of that request, the documents were of the same nature as those identified in their original request and that in their letter they had explained the relevance of the requested documents to the issues in dispute and had assumed that the relevance was obvious.

131. MBL explained the relevance of and need for the Requested Programs in this way:

1. Mr Gibson’s report makes several statements to the effect that the defendants assessed the Projects with information known at the time and carried out detailed reviews of the Projects, which they defined as the Assertions. To make the Assertions, Mr Gibson relied on an assumption provided to him and an inference he had made from the documents briefed to him. The extent to which the Assertions and assumptions and inferences underlying them are substantiated is in contest.

2. The Assertions, and the assumption and inferences upon which Mr Gibson relies to make the Assertions, are relevant to several issues in dispute, including:

1. whether the defendants were aware that additional provisions were required to be taken in respect of the Projects and a corresponding reduction in recorded profits was required; and

2. whether the defendants had reasonable grounds to make the representations alleged by the plaintiffs.

3. The Requested Programs are relevant to the Assertions and the facts in issue as they provide information as to how the projects were assessed with information known at the time, which is consistent with the reference to project programs within the lay evidence. The plaintiffs require the Requested Programs to respond to Mr Gibson’s report.

4. MBL do not consider it useful to traverse all matters raised in HSF’s letters of 21 and 26 June 2024.

5. The PDF versions of the project programs produced by the defendants are not a satisfactory substitute for the native programs as they do not contain information which is fundamental to reviewing the status of a project and amending project programs. That information is necessary for the plaintiffs’ experts to respond to the assertions in Mr Gibson’s report and the alternative course referred to in HSF’s letter of 21 June 2024 is not practical.

6. As the defendants resisted production of the documents which are necessary for the plaintiffs’ experts to respond to Mr Gibson’s report and the increasing delay to the production of the plaintiffs’ reply evidence as a result of not receiving the Requested Programs, the plaintiffs were left with no choice but to serve the Original NtP as a matter of priority.

7. The majority of the documents referred to in the Original NtP were first requested on 21 May 2024 and their non-production is hindering the progress of the plaintiffs’ expert evidence. Whilst the Engineering Business was sold by Lendlease in 2020, the defendants’ discovery obligations commenced when the matter was filed in 2019 and the documents in the Original NtP are a confined set of documents that should be readily identifiable.

132. MBL said that the plaintiffs were willing to consent to extending the time for production under the Original NtP to 8 July 2024.

133. MBL concluded by saying that the matters contained in HSF’s letter of 21 June 2024 concerning potential prejudice to the defendants caused by the plaintiffs seeking to adduce evidence exceeding evidence in reply were premature and were matters to be dealt with at a later time (if and when the relevant circumstances arose), that the plaintiffs would propose an alternative timetable for the provision of reply evidence at another time, and that there was no relevant prejudice to the defendants in that course as no dates for mediation or the trial had been fixed and the defendants had expressly stated that they would resist the fixing of such dates until after the application for special leave had been resolved.

Work and costs required to produce the documents sought in the Original NtP

134. Although some quibbles were raised by the plaintiffs, I accept the generally unchallenged extensive evidence of the defendants that considerable work is required to be undertaken to locate and produce the documents sought under the Original NtP for each of the four categories of documents sought, it is difficult to estimate the costs of undertaking that work and the costs of undertaking that work is likely to be at least in order of $500,000. That work is detailed as follows:

1. Category 1 seeks the native file of the programs attached to each of the original contracts or deeds for the NCX, GUN and KSD Projects.

Category A6 of the Original Discovery Orders sought in relation to each of the Projects all signed contracts and variations between the defendants (and/or its subsidiaries) and the relevant clients and/or joint venture partners dated on or before 8 November 2018.

Amongst the documents previously produced by the defendants to the plaintiffs on 9 October 2020 in response to the Original Discovery Orders were the Overall D&C Program attached at Exhibit F to the original NCX D&C Deed (as a PDF document) which was as part of the NCX Program Associated Note; and a copy of the Contract Program which appeared at Exhibit C to the original GUN D&C Deed (as a PDF document) which includes a “base case summary” program and a “base case detail” program.

On 8 July 2024, after the issuance of the Original NtP, the defendants produced to the plaintiffs a copy of the program which appears in PDF form at Exhibit B to the original KSD project deed which is the entirety of that document.

To comply with category 1 of the Original NtP, the defendants would need to carry out the following steps:

1. obtain access to the relevant project drive for each of the Projects;

2. examine the folder and file structure of the drive to identify any potentially responsive folders and files;

3. process the potentially responsive folders or files into the Relativity discovery review database for further review;

4. convert the potentially responsive files from native .xer format into PDF format or otherwise obtain access to the native .xer file format files in a form that allows them to be compared with the PDF contract versions; and

5. conduct a manual comparison exercise to verify potentially responsive .xer files as against the contractual PDF files previously produced. This would involve confirming that every individual activity (i.e. line within the Gantt chart) is identical to the programs contained within the contracts. By way of example, the GUN “base case detail” program contains over 5,000 line items within the program which would need to be compared to a potentially responsive .xer file. This exercise would potentially need to be undertaken for several files if the comparison exercise confirms that an identified .xer file is not the same as the programs contained within the contracts.

2. Category 2 seeks the native file for each version of the programs for the KSD Project as amended from 1 September 2017 through to 8 November 2018.

As part of complying with the Original Discovery Orders, HSF on behalf of the defendants forensically collected a copy of the KSD Project drive in 2020. The volume of material on that drive was 6,700 GB or 6.7 TB. HSF processed a range of files and folders onto the Relativity database which incurred a one-off data charge for the 6.7 TB of data of approximately $134,000 and an on-going monthly charge of approximately $94,000.

Those folders and files which had no relevance to the Original Discovery Orders or the Further Discovery Orders were not processed into the Relativity database at that time. The copy of the complete KSD Project drive that was collected in 2020 has been archived into a more cost-efficient form of “cold storage” where the data has been taken off HSF’s live Amazon Web Services infrastructure with immediate access and been placed into a lower cost storage system with limited access. While the driver is in “cold storage” it is not in a form where HSF is able to access or otherwise view the files contained within that drive.

In order to restore the KSD Project drive from “cold storage”, the contents of the project drive would need to be restored onto a new external hard drive, taking up to two weeks. In order to produce documents in response to category 2 of the Original NtP, HSF would need to undergo the process of restoring the project drive from “cold storage” as a first step.

At least one folder within the KSD Project drive may contain programs, that folder contains over 9,000 files and over 700 sub-folders and one potentially responsive sub-folder within that folder contains over 2,800 files as a subset of the 9,000 total files.

To comply with category 2 of the Original NtP, the defendants would need to then carry out the following further steps:

1. identify one or more persons who worked on the KSD Project who has awareness of programming on the project, although the individual who previously assisted in identifying document repositories and folder locations to comply with the Original Discovery Orders in respect of the KSD Project is no longer employed by the defendants (or any of their subsidiaries);

2. interview that person(s) and ask them to identify the relevant folders which may contain documents which are responsive to category 2;

3. process the potentially responsive files into a discovery database for further review and provide those .xer files to a current employee of Lendlease who can open the files in Primavera (or another specialist software capable of opening .xer files) to verify whether those files meet the description of the documents set out in category 2. Alternatively, HSF would need to obtain access to the Primavera software and train a solicitor to review files using that software in order to review the files.

Although it is not known how many files on the KSD Project drive are .xer files or how long any of the steps above will take, an estimate of those costs assuming that approximately 2,800 files will require review is in the order of $159,500. If the total number of documents for review was higher, the costs would increase considerably. The preparation of a verification affidavit would add additional costs.

3. Category 3 of the Original NtP seeks the native file for each version of the programs for the NCX Project as amended from 1 April 2017 through to 8 November 2018 (including draft versions of the programs for each month to the extent that a final version was not produced during that month).

The NCX Project’s financial and document management systems (including the central project drive) were hosted by Lendlease’s joint venture partner, Bouygues. To comply with the Original Discovery Orders and the Further Discovery Orders, it was necessary for the defendants to liaise with Bouygues to obtain documents from specially identified folders and file paths within the Bouygues-hosted project drive. This involved numerous requests being made to Bouygues and their lawyers, which resulted in it taking more than a month to obtain access to collect those documents from Bouygues.

At the time of obtaining access to those folders and documents in 2020, the NCX Project had not been completed and so it was necessary to obtain the assistance from Lendlease project personnel still engaged on it and familiar with the project documents who could identify specific folders and file paths by reference to the specific categories of the Original Discovery Orders.

It is anticipated that obtaining access for the purpose of responding to category 3 of the Original NtP will be lengthier, more challenging and more costly that it was in 2020 because the NCX Project was completed in October 2020, nearly four years have passed since the process for responding to the Original Discovery Orders, that process was limited to collecting specific folders and file paths by reference to specific categories in the Original Discovery Orders and the two individuals who previously assisted HSF in that process are no longer employed by the defendants (or any of their subsidiaries).

To comply with category 3 of the Original NtP, the defendants would need to carry out the following steps:

1. identify one or more persons who worked on the NCX Project with awareness of the programming on it;

2. interview that person (or those persons), should they be available for interview, and ask them to identify the document repositories that may contain the documents referred to in category 3. This may require multiple stages depending on whether or not that person (or those persons) still have access to the project drives in order to identify specific file path locations of potentially responsive folders and sub-folders within those repositories;

Defendants in reply

262. The defendants submit that the plaintiffs’ position in now seeking production under the Original NtP, after conceding at the hearing before me on 23 August 2024 that it could be narrowed and serving the Alternative NtPs, demonstrates that the plaintiffs do not know precisely what they are seeking.

263. In response to the plaintiffs’ submission that it is open to them to test certain assumptions by using documentary material, evidence in reply, or cross-examination, the defendants assert that they do not object to the plaintiffs pursuing any of those avenues, but that the plaintiffs’ stated objectives — which they say amount to effectively seeking discovery in order to serve more expert evidence in chief rather than in reply — go beyond any of those permissible courses. The defendants state that if the plaintiffs’ position is accepted, and they are permitted to adduce the foreshadowed evidence, the defendants would undoubtedly need to be afforded an opportunity in turn to adduce programming evidence, and that fact alone confirms that the plaintiffs are seeking the documents for the impermissible purpose of putting on evidence in chief, contrary to the court’s orders stipulating service by the plaintiffs of evidence in reply.

264. The defendants reject the plaintiffs’ suggestion that the defendants have failed to engage with the plaintiffs in relation to the Alternative NtPs and for the purpose of settling the terms of production, and describe such suggestion as an attempt to lay blame on the defendants for refusing to consent to inappropriate orders proposed and/or improper requests for production by the plaintiffs.

265. On the cost of production pursuant to the Original NtP or the Detailed NtP, the defendants say that their evidence should be preferred to that of the plaintiffs, noting that the defendants are the ones who will be required to perform any steps needed to comply with any production ordered; that the defendants’ evidence on the costs of complying with the Original NtP was unchallenged; that the plaintiffs’ assertions regarding those costs are belated and self-serving, and either incorrect or inappropriate; that the plaintiffs’ evidence on the costs and burden of production are speculative and provide no firm basis for definitive conclusions on the matter; that the plaintiffs’ evidence on technical matters is based on purported “experience” when the deponent has not established any relevant expertise to give that evidence; that the plaintiffs do not contest the defendants’ evidence on costs for the Alternative NtPs; and that if actual costs are below the defendants’ estimated costs, the defendants have proposed that the difference should revert to the plaintiffs.

266. In response to the plaintiffs’ suggestions as to how the process of (and steps preliminary to) production might be abridged, including their indication that potentially responsive material could be produced without review by the defendants’ solicitors or instructors, the defendants state that such suggestions are imprudent and unrealistic. They say that the plaintiffs fail to distinguish between certain employees of the defendants with access to the specialist software on the one hand and the defendants’ solicitors on the other, the latter of whom are abreast of the issues in the proceedings, alive to possible issues in document disclosure in litigation, and capable of making forensic judgments including as to whether a certain document is responsive. The defendants emphasise that review of the documents by solicitors is necessary to ensure the defendants’ compliance with its obligations to the court in respect of the Original NtP.

267. The defendants submit that the plaintiffs’ assertion as to the reduced time and cost burden of compliance under the Original NtP rests on the plaintiffs’ incorrect assumption that solicitor review would not be required, and once it is accepted that review of the documents by the defendants’ solicitors is necessary, it is clear that the time and expense associated would not be “significantly lower” for the Original NtP. The defendants also state that the plaintiffs’ assertion that manual line-by-line comparison is ultimately unnecessary lacks a proper evidentiary foundation, is bare assertion, and is contradicted by the defendants’ evidence as to the necessity of this step. The defendants say, likewise, in answer to the plaintiffs’ assertions that the costs of quality control checks and management review are likely to be materially lower, that those assertions are speculative, lack any cogent or reasoned basis, and are insufficient to displace the defendants’ unchallenged evidence as to cost.

268. Referring to the plaintiffs’ submission to the effect that to the extent the Original NtP is likely to result in the production of more documents than the Detailed NtP, that is not necessarily undesirable and indeed would reduce the risk of potentially relevant documents not being captured under the Detailed NtP, the defendants characterise this as a request for impermissible fishing which should be rejected, and say that it highlights problems with the Original NtP. They say, further, that although the plaintiffs have expressed their willingness to incur the burden of then identifying which subset of native programs among those produced are relevant to Mr Thorpe’s analysis, the plaintiffs have not indicated how they would go about identifying relevant documents and distinguishing final programs from working drafts, how it would be more efficient or cost-effective, and how Mr Thorpe would be able to draw any definitive conclusions if provided with multiple versions or working drafts of programs.

Costs

Costs of compliance

269. In relation to the costs of complying with any order for production pursuant to the NtPs, the defendants submit that to the extent the defendants are required to produce any documents, the plaintiffs should indemnify the defendants for their actual costs of compliance, including costs of compliance in excess of the estimates given. They state that the plaintiffs have failed to articulate any reason for departing from that (fair) position. To the extent that any payment exceeds actual costs, the defendants repeat their proposed position that the difference revert to the plaintiffs.

270. The plaintiffs submit that what they are seeking is not that the defendants incur costs performing a task the plaintiffs themselves can do equally well, but rather are calling for the defendants to produce relevant materials that exist only in the defendants’ possession, and that this is important context that should inform the determination of which of the parties should bear the costs of compliance with any order for production. Subject to this, the plaintiffs submit that if the court is minded to order payment by the plaintiffs of a sum of money, an order requiring the plaintiffs to indemnify the defendants for their costs of compliance by paying a specified amount determined by reference to the plaintiffs’ evidence by a date not exceeding 21 days from the date of any orders for production being made would be appropriate.

Costs of the defendants’ application

271. The defendants state that the plaintiffs should pay their costs of the application because:

1. if the Original NtP is set aside, or production pursuant to the Original NtP is otherwise not required, the costs of the motion should follow the event;

2. if production is ordered under the Alternative NtPs, it is relevant that the plaintiffs’ concession that the Original NtP could be narrowed was only made towards the end of the hearing on 23 August 2024 (more than two months after the defendants first raised concerns about the breadth of production proposed to be sought by the plaintiffs, more than six weeks after the defendants raised the lack of specificity in the Original NtP itself, and only after the parties had incurred substantial costs in preparing evidence and submission in relation to the Original NtP);

3. if production is ordered under the Original NtP, it is relevant that it was only during the oral hearing on 23 August 2024 that the plaintiffs offered, for the first time, to pay the defendants’ costs of compliance; and

4. if production is ordered under either the Original NtP or the Alternative NtPs, such production of any such may ultimately prove to be futile including if, for example, the plaintiffs are ultimately precluded from relying on Mr Thorpe’s foreshadowed evidence on the grounds that it is not properly reply evidence and/or reformulating their case by reference to new evidence they should have adduced earlier.

272. The defendants add that alternatively, if production is ordered under the Original NtP and their submissions outlined above are rejected, the plaintiffs should at least pay the costs incurred by the defendants in responding to the Alternative NtPs since the plaintiffs have essentially abandoned the Alternative NtPs after putting the defendants to the expense of responding to them in detailed evidence and submissions.

273. For their part, the plaintiffs contend that the defendants’ submissions as to the costs of the application should be rejected because, among other things:

1. notwithstanding their objection to the form of the Original NtP, the defendants ultimately conceded that it could be re-issued as a UCPR r 34.1(1) notice to produce in the same terms;

2. the defendants resist production altogether, on the basis of fundamental objections (relevance, case management considerations, prejudice and necessity) which occupied the majority of the defendants’ submissions and have nothing to do with the terms of production;

3. if the Original NtP is set aside but production is ordered, the fact that the defendants address the Alternative NtPs in their submissions and as the subject of their application means that the defendants’ application has not been successful on its professed footing;

4. if production under any of the NtPs is ordered, the defendants have failed in their application to resist production; and

5. in relation to the defendants’ submission that if production is ordered under either the Original NtP or the Alternative NtPs costs should not follow since some potential uses of the requested documents may ultimately not be permitted, that argument is speculative, ignores other uses to which the plaintiffs might legitimately put the documents (e.g. cross-examination), and amounts to guessing at the outcome of as yet unargued future contests.

Form of orders sought

274. The form of orders sought by the defendants is as follows:

1. The Original NtP (and the Alternative NtPs if pressed) be set aside;

2. The plaintiffs pay the defendants’ costs of the motion, and

3. The plaintiffs must file and serve their evidence in reply in the substantive proceedings within 10 weeks of the date of these orders.

275. The plaintiffs seek orders dismissing the defendants’ application with costs and ordering production in accordance with the Original NtP.

CONSIDERATION

276. In my opinion, the Original NtP must be set aside based on the confluence of factors I have set out below. As the Alternative NtPs are not pressed by the plaintiffs, I limit my consideration accordingly.

277. The documents sought in the Original NtP have no apparent relevance to any of the claims which are made by the plaintiffs in the ACLS. As the defendants rightly observe, the plaintiffs’ case as pleaded principally concerns provisions the plaintiffs allege the defendants should have recognised at the Group level, and native program files recording the linkages between thousands of individual activities involved in the construction of the Projects undertaken by the Engineering Business within one segment of the defendants’ global business can shed very little light on that question. Furthermore, the plaintiffs do not allege that in considering Group-level provisions, regard should have been had to program files (native or otherwise), or that relevant Lendlease personnel could or should have interrogated linkages in native program files. In those circumstances, the relevance of the Requested Programs to the issues in the case as disclosed by the pleadings and by the evidence filed to date (including Mr Badala’s report, which does not itself contain any programming or delay analysis but instead merely uses likely completion dates for the Projects to inform his analysis) is altogether unclear.

278. That lack of forensic relevance itself provides grounds for setting aside the notice to produce, as recognised in Azzi v Volvo and Blacktown City Council.

279. I am, moreover, satisfied that the documents sought in the Original NtP are intended to be used by the plaintiffs to essentially introduce a new area of factual inquiry through the related application of new expertise, by a new expert, Mr Thorpe, to the Projects. The plaintiffs have expressly stated that the Requested Programs are needed to inform Mr Thorpe’s foreshadowed evidence, being a report furnishing conclusions based on specialist construction delay analysis in respect of each of the Projects, including an assessment of how issues arising on each Project affected their progress. I agree with the defendants’ submission that the plaintiffs’ attempts to shoehorn Mr Thorpe’s foreshadowed evidence into the four corners of the terrain covered by Mr Gibson’s report so as to bring it within the realm of “reply evidence” are tenuous.

280. That is in circumstances where the opinions of Mr Gibson pinpointed by the plaintiffs as ones to which Mr Thorpe’s proposed evidence will be responsive are in my view merely criticisms or questions raised by Mr Gibson about Mr Badala’s methodology, based on what Mr Badala has not factored in or independently undertaken — namely, construction delay or programming analysis. Mr Badala’s instructions expressly required him to address the time to complete the Projects and the effect of any delays in the Projects. Mr Gibson’s observations that Mr Badala did not undertake any programming or delay analysis does not permit the plaintiffs to introduce that analysis in reply. Mr Gibson did not undertake any programming or delay analysis either. Mr Gibson had the same documents which were provided to Mr Badala.

281. New expert evidence that is based on new material and corrects that omission or deficiency in the plaintiffs’ expert evidence and case in chief, as opposed to new expert evidence merely explaining why Mr Badala’s use of the relevant likely completion dates was appropriate, and likely leading to a substantial revision of the whole suite of the plaintiffs’ expert evidence in the process, cannot in my opinion properly be characterised as “evidence in reply”. Such evidence is not offering a reply to or rebuttal of the defendants’ expert evidence; rather, it functions or seeks to function (to use the phrase adopted by Bond J in Sanrus at [17]) as a new or alternative mode of proving the plaintiffs’ case that ought to have been put in chief. Although the plaintiffs have made every effort to frame the prospective expert evidence for which they say the Requested Programs are needed as reply evidence, including by attempting to tie it to certain assertions made by Mr Gibson in his report, the authorities (including Adler) indicate that I must be attentive to substance over form in assessing whether evidence is or is not truly “in reply”. This is a further factor to which I have given weight in my determination.

282. Further, applying the matters relevant to the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings in s 56 of the CPA, the matters to which I must have regard in giving effect to that overriding purpose in s 57 of the CPA and the relevant matters to which I may have regard in s 58 of the CPA, also compels me to the conclusion I have reached.

283. At the outset I wish to observe that the plaintiffs’ approach to the proper prosecution and progress of these proceedings is the antithesis of how a party is expected to conduct litigation that it has chosen to bring in the Commercial List of this court. To have taken over four years from when the proceedings were commenced in April 2019 until they filed the ACLS in June 2023 to formulate their case, whilst serving six proposed versions of the ACLS and flagrantly failing to meet deadlines for their amended case and evidence fixed by the court in the March 2022 orders, the August 2022 orders, the November 2022 orders, the December 2022 orders and the June 2023 orders, is at the very outer limits of delay by a party that the Commercial List of this court should permit. Without ignoring the defendants’ own very minor contributions to the delay in the progress of these proceedings (being the late service of their lay and expert evidence in December 2023 through until March 2024 which extended to mere days and weeks), I must remark on the plaintiffs’ particular consistent disregard for court-ordered deadlines.

284. The problems now created by the plaintiffs through the nonchalance they have displayed towards their duty to assist the court under s 56(3) of the CPA to further the overriding purpose to facilitate the just, quick and cheap resolution of the real issues in the proceedings and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court are very real.

285. At the behest of the plaintiffs, the defendants have participated in two rounds of formal discovery pursuant to the Original Discovery Orders in May 2020 and the Further Discovery Orders in June and July 2021, producing over 56,000 documents at a cost of well over $5.5 million. I am mindful that against the backdrop of such extensive and expensive discovery, provided over three years ago, in conjunction with the significant burden (in terms of time, effort and costs) compliance with the Original NtP would now involve for the defendants, compelling production in accordance with the Original NtP would occasion serious injustice to the defendants.

286. The plaintiffs made forensic choices in the way that they formulated their case and in the evidence that they put forward to support their case in chief, which they had (and took) ample time to do. In all the circumstances, I am of the view that the dictates of justice and the overriding purpose require that the plaintiffs be held to those choices.

287. I wish to stress that parties like the plaintiffs in these proceedings who take in excess of four years to formulate their case, make forensic choices about the lay and expert evidence they wish to lead in support of it which causes the defendants as their opponents to respond to the issues raised by that evidence should not expect any indulgences from the court in seeking to retreat to take a different evidentiary approach at significant prejudice to the defendants in time, effort and costs. When those wasted costs become practically incalculable, not just from the costs of producing the documents sought on a notice to produce but also because the plaintiffs are patently seeking to use those documents to prepare yet more expert evidence in chief when the defendants have already provided evidence in response to the existing case in chief, the court should be very slow to give its imprimatur to litigation conducted in that fashion.

288. The difficulty of wasted time, effort and costs is exacerbated in this case because of the manner in which any revision to the conclusions reached by Mr Badala by reason of the proposed work of Mr Thorpe would in turn cause revisions to the conclusions of Mr Stone and Professor Zmijewski. It would be quite unjust to the defendants to cause them to have to revisit all of the complex evidence they have provided in response to the evidence of the plaintiffs so as to accommodate the new case in chief that the plaintiffs wish to make. I will not allow the plaintiffs to use the documents they wish to obtain under the Original NtP to serve that end.

276. The plaintiffs sought to rely on the delay in the proceedings which has been caused by the parties having to wait until the High Court determines the appeal before it on the separate question of this court’s power to approve a notice to group members with the proposed settlement notation. The plaintiffs accuse the defendants of adopting a “hurry up and wait” approach because the proceedings are effectively in abeyance until the High Court’s decision. But even though the parties have the benefit of time available to deal with any further production of documents, that does not cure any of the fundamental problems caused by the Original NtP – that it does not seek documents relevant to the pleaded issues, it does not seek documents that would assist the plaintiffs in providing evidence which is truly in reply and it seeks documents which will involve the defendants incurring yet further considerable expense and effort.

277. It is now well past the time for the plaintiffs to file and serve their lay and expert evidence in reply, which was ordered to be filed and served by 18 May 2024 in accordance with the June 2023 orders. I agree with the defendants’ proposal that the plaintiffs be given a further 10 weeks within which to provide their reply evidence.

278. In relation to costs, I do not perceive any sound reason for departing from the general rule in UCPR r 42.1 that costs follow the event. The defendants have succeeded in resisting production and they should have their costs of the application.

ORDERS

292. For the reasons set out above, I propose to make the following orders:

1. The plaintiffs’ notice to produce dated 24 June 2024 be set aside.

2. The plaintiffs pay the defendants' costs of the notice of motion filed 23 July 2024.

3. The plaintiffs must file and serve their lay and expert evidence in reply in the proceedings within 10 weeks of the date of these orders.

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Decision last updated: 28 January 2025