DM Drainage & Constructions Pty Ltd as trustee for DM Unit Trust Trading as DM Civil v Karara Mining Ltd [No 5]
[2019] WASC 118
•10 APRIL 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: DM DRAINAGE & CONSTRUCTIONS PTY LTD as trustee for DM UNIT TRUST TRADING AS DM CIVIL -v- KARARA MINING LTD [No 5] [2019] WASC 118
CORAM: VAUGHAN J
HEARD: 5 APRIL 2019
DELIVERED : 8 APRIL 2019
PUBLISHED : 10 APRIL 2019
FILE NO/S: CIV 2410 of 2012
BETWEEN: DM DRAINAGE & CONSTRUCTIONS PTY LTD as trustee for DM UNIT TRUST TRADING AS DM CIVIL
Plaintiff
AND
KARARA MINING LTD
Defendant
Catchwords:
Evidence - Documentary tender - Where substantial documents not included in trial bundle - Relevance and significance of documents - Turns on own facts
Legislation:
Nil
Result:
Directions given for reception of documents as exhibits
Category: B
Representation:
Counsel:
| Plaintiff | : | F C Corsaro SC & C L Donald |
| Defendant | : | P Cahill SC & D J Pratt |
Solicitors:
| Plaintiff | : | Lavan |
| Defendant | : | Jackson McDonald |
Case(s) referred to in decision(s):
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
VAUGHAN J:
(These reasons were delivered orally. They have been edited to correct matters of grammar and infelicity of expression. Authorities and other references have also been footnoted rather than appearing in the body of the reasons.)
Introduction
On Friday, 5 April 2019 I heard submissions on the parties' respective proposed documentary tenders.
Each party has closed its case subject to a documentary tender. To date documents have only been received as an exhibit where their contents have been specifically referred to in the course of opening or in evidence. If documents have not been referred to in that way, and thus received as an exhibit, to the extent they have been mentioned in written submissions, a witness statement or an expert report, they have been taken to have been marked for identification.
There are currently 880 exhibits: 574 tendered by the plaintiff, DMC; 306 tendered by the defendant, KML.
Orders providing for a documentary tender were made on 5 February 2019. Allowing for later variations as to timing, the orders provide:
1.By 4.00 pm on Friday, 29 March 2019, each party file and serve a document identifying those additional documents which it seeks to have tendered as an exhibit. A document may only be nominated for receipt as an exhibit if:
(a)the document has been 'marked for identification' by reason of it having been referred to in the party's written opening submissions or a witness statement or an expert report as tendered by the party or, alternatively, is a weekly report or daily job sheet; and
(b)counsel for the party intends to refer to the contents of the document in the party's written closing submissions.
2.By 4.00 pm on Wednesday, 3 April 2019, each party file and serve a document identifying whether there is an objection to the receipt of any of the other party's nominated documents as an exhibit and, if so, the ground of the objection.
3.Counsel for the parties must be able to justify to the court the purpose for which each document is sought to be received as an exhibit, ie, the relevance and significance of the contents of the document.
Two things should be noted. First, strictly documents do not qualify as being available for tender as an exhibit unless they fall within order 1(a), ie they have been marked for identification or are a weekly report or daily job sheet. Second, by order 3, counsel must be able to justify the purpose for which the document is to be received as an exhibit, ie the relevance and significance of the document. In that regard there is also an additional qualification for receipt as an exhibit. Counsel must intend to refer to the contents of the document in the party's written closing submissions (order 1(b)).
Proposed orders to deal with the documentary tender in this way were circulated by the court in advance of 5 February 2019. In substance the plaintiff consented to those orders (ts 3505). The defendant proposed minor changes which were accommodated (ts 3507 to ts 3511).
The plaintiff, DMC, seeks to tender 4,007 documents. Objections have been filed to a number of the documents. The defendant, KML, seeks to tender 1,322 documents. DMC has not objected to the reception into evidence of any of those documents. Accordingly, it is convenient to deal first with the KML documents.
Reception of the KML documents
Based on the 'KML.AID' documents provided by the defendant on Tuesday, 1 April 2019 the 1,322 documents nominated for tender by the defendant fall into eight classes:
(1)documents referred to in the defendant's expert reports (KML.AID.008.001);
(2)weekly reports (KML.AID.008.002);
(3)construction programs (KML.AID.008.0003);
(4)daily job sheets (KML.AID.003.0004);
(5)CRN documents as referred to in schedule 3 to Mr Pass' witness statement (KML.AID.008.0005);
(6)variation documents as referred to in schedule 2 to Mr Pass' witness statement (KML.AID.008.0006);
(7)EOT documents as referred to in schedule 5 to Mr Pass' witness statement (KML.AID.008.0007); and
(8)miscellaneous documents as additionally referred to in the defendant's tender list (KML.AID.008.0008).
As to the last category, the defendant has prepared an excel spreadsheet named 'Defendant Tender' (KML.AID.008.0008). This appears to specify all documents that the defendant seeks to tender, nominating where the document has been referred to. That is, in written opening submissions, in a witness statement or in an expert report. Based on that, with three exceptions, the documents appear to meet the qualifying conditions for nomination in par 1(a) of the 5 February 2019 orders. The three exceptions are the documents attached to the affidavit of Mr Bereyne sworn 29 March 2019. Those documents were dealt with at the hearing on 5 April 2019. The defendant has already been granted leave to include these documents in the trial bundle. They may now also be received as an exhibit.
In the course of oral submissions on 5 April 2019, senior counsel for the defendant confirmed that:
•First, there is a present intention to refer to the contents of the nominated documents in KML's written closing submissions.
•Second, counsel is satisfied that the relevance and significance of the documents are such that they ought to be received as exhibits.
Having had those assurances, and in the absence of objection, the documents on KML's tender list will be received as an exhibit.
Reception of the DMC documents
Reception of the documents in the plaintiff's tender list has proven more problematic.
The defendant's schedule of objections to the plaintiff's documentary tender list breaks the objections into a number of categories as follows:
| Description/Category | Document Numbers | Count |
| 1. Documents not in trial bundle | ||
| (a) Site Access Requests (SARs) | Documents numbers listed in Part A | 984 documents |
| (b) Daily Activity Reports (DARs) | Document numbers listed in Part B | 247 documents |
| (c) Geraldton fuel invoices | DMC.032.0030.0001 | 281 pages |
| (d) 2 CPI003 Contract Schedules Rev 1 | DMC.059.0002.6523 | 47 pages |
| 2. Documents in trial bundle | ||
| (a) Ground Disturbance Permits and release forms | Document numbers listed in Part C | 37 docs, 661 pages |
| (b) Technical queries No's 4 to 85 with emails and drawings | KML.001.0122.0001 | 529 pages |
| (c) Tender Documentation | Document numbers listed in Part D | 44 docs, 1748 pages |
| (d) Grant Craven’s diary | DMC.046.0005.0001 | 393 pages |
| (e) Sketches/drawings | Document numbers listed in Part E | 276 docs, 309 pages |
| (f) Notices of Dispute Nos 002 to 009, 011, 012 and 014 to 028 including supporting documentation such as variation requests, blast plans, email correspondence, job sheets and invoices | KML.001.0065.0001 | 376 pages |
| (g) Site Record - Sand Rock Limestone Gravel Pipe Installed | DMC.024.0005.0001 | Bundle of 678 pages |
| (h) KML Operations Water Supply Meetings, Programs & Transmittals | KML.001.0119.0001 | Bundle of 388 pages |
| (i) Miscellaneous bundle of documents | KML.001.0261 | Bundle of 198 pages |
| (j) Daily Productivity Log Book 0101 | DMC.018.0022.0001 | 54 pages |
| (k) Documents without any substantive content | DMC.059.0016.7758; DMC.059.0016.7759; DMC.059.0018.9470; DMC.059.0025.7978; KML.116.007.7777; | 5 documents |
| (l) Briefs to Wallis and Boland | Document numbers listed in Part F | 10 docs, 1128 pages |
| (m) Superceded (sic) Pleading | DMC.073.0006.0007; DMC.073.0006.0016 | 2 docs, 47 pages |
| (n) Pre‑start documents | Document numbers listed in Part G | 11 docs, 1399 pages |
| (o) Miscellaneous correspondence and documents | Document numbers listed in Part H | 525 docs, 2575 pages |
Broadly, the defendant's objection schedule specifies two categories of documents. First, documents not included in the trial bundle. Second, documents included in the trial bundle. There is, of course, a third category: those documents that are not objected to. I have not been provided with any convenient list of the documents that are not the subject of an objection.
In the course of oral submissions on 5 April 2019 there were a number of concessions on the part of both the plaintiff and the defendant. Those concessions have confined the issues for determination. It is, however, necessary that I record what fell out of the oral submissions in this respect.
I have identified the following three classifications so far as consensual disposition is concerned.
First, there are a number of categories which the plaintiff does not press. These are:
(1)item 1(d) - CPI003 contract schedule rev 1;
(2)item 2(d) - Grant Craven's diary;
(3)item 2(k) - documents without any substantive content; and
(4)item 2(m) - superseded pleadings.
Those documents will not be received as exhibits.
Second, there are two categories which the plaintiff does not press but the plaintiff has sought to reserve the possibility that the issue may be revisited, depending on the contents of the defendant's written closing submissions. These are:
(1)item 2(c) - tender documentation; and
(2)item 2(o) - miscellaneous correspondence and documents.
As those documents are not pressed they will not be received as exhibits. If, at a later stage, the plaintiff seeks to revisit the matter, it will be necessary for the plaintiff to apply to re‑open. The issue will be addressed on its merits at that time.
Third, there were a number of categories in which it became apparent that only a limited number of documents were in fact sought to be tendered. On that becoming evident senior counsel for the defendant informed me that there was no continuing objection. In substance I understood the tender to be limited to the documents as so identified and that, if so limited, the defendant had no objection to the tender.
The documents within this third category are as follows:
(1)item 1(c) - Geraldton fuel invoices (here the relevant document is at p 2 to p 9);
(2)item 2(b) - technical queries numbers 4 to 85 with emails and drawings (here the relevant document is at p 40 to p 41);
(3)item 2(f) - notices of dispute numbers 002 to 009, 011, 012 and 014 to 024 (here the relevant documents are at p 197 and p 329);
(4)item 2(g) - site report sand, rock, limestone, gravel pipe installed (here the relevant documents are at p 3 to p 5);
(5)item 2(h) - KML operations water supply meetings, programs and transmittals (here the relevant documents are at p 140, p 143, p 145 and p 146);
(6)items 2(i) - miscellaneous bundle of documents (here the relevant document is at p 4); and
(7)items 2(j) - a daily productivity log book 0101 (here the relevant document is at sheet 146 which appears at page DMC.018.0022.0048).
The specific documents as so nominated will be received as exhibits. But other documents within the broader categories will not. To the extent that, as to item 1(c), the document is not currently in the trial bundle, leave will be granted to supplement the trial bundle. Leave is appropriate in circumstances where the limited tender of a specific document is not objected to.
The remaining categories must be dealt with individually. Some are relatively simple. I intend to leave the two most difficult categories - items 1(a) and 1(b) - until last.
The first of the remaining categories is item 2(a) - Ground Disturbance Permits and release forms. The defendant says that these documents are irrelevant as the dates of Ground Disturbance Permits issue and release are admitted in the statement of agreed facts. That is so, but there are some dates that are not agreed. I will admit into evidence documents within this class to the extent that they go to establishing those dates that are not agreed. The plaintiff must nominate which documents fall within that class for the category. If the defendant disputes that the documents so nominated go only to the non‑agreed dates that aspect of the tender will need to be brought back to me.
Next is item 2(e) - sketches and drawings. Here, in oral submissions at ts 4753, senior counsel for the plaintiff said that the written closing submissions will refer to one particular set of sketches and drawings and make submissions relevant to those particular sketches and drawings. Those sketches and drawings should be received as an exhibit; but it is not necessary to receive all 276 documents as nominated. Given what has been said by senior counsel for the plaintiff they will not all be relevant. So this aspect of the tender will be restricted to the particular sketches and drawings to be the subject of written closing submissions. These must be nominated now for the purpose of the tender.
I turn then to category 2(l) (the briefs to the two experts - Mr Wallis and Mr Boland). These should be received as exhibits, but only on a limited basis. They are relevant in establishing the materials available to the experts for the purpose of providing the expert opinion. I will receive the materials on that basis. However, I will not receive the materials as having any wider evidentiary significance. It will be necessary for the plaintiff to make good any assumptions relied on by the experts for their opinions in the usual way from source and lay evidence.
Category 2(n) are pre‑start documents. I understood senior counsel for the defendant to no longer object to these to the extent that the documents were referred to in par 924.2.2 of Mr Craven's witness statement. I am concerned, however, that these 12 documents contain numerous pages, many of which are unlikely to be required to be received as exhibits. The plaintiff may introduce into evidence as exhibits now only such pages as will be referred to in closing submissions. These must be nominated now for the purpose of tender. If - due to issues raised by the defendant in their written closing submissions - it becomes apparent that further pages ought to be received, I will be relatively lenient in allowing documents in this category to be enlarged on any application to re‑open.
This leaves the two more contentious categories:
•first, item 1(a), 'Site Access Records' - some 984 documents; and
•second, item 1(b), 'Daily Activity Reports' - some 247 documents.
These items are contentious because the documents have never been included in the trial bundle.
In that regard, senior counsel for the defendant submitted, and I accept, that the introduction of these documents at this late stage comes with prejudice. The oral evidence phase of what has been a long trial has completed. The evidence is in. The defendant has cross‑examined based on the materials as it anticipated the plaintiff to be relying on as manifested in the trial bundle. Inevitably, there is prejudice in allowing the plaintiff at this late stage to potentially reform its case by allowing the introduction of documents not included in the trial bundle to potentially plug up any gaps or deficiencies in the evidence as the plaintiff initially intended to rely upon. The plaintiff ought not be permitted to make out a new evidentiary case that the defendant has not had - and will not have - an opportunity to interrogate.
There is also a more practical aspect to the likely prejudice. The defendant's legal representatives are currently engaged in preparation of written closing submissions. To have to deal with a substantially new documentary case will be a distraction that the defendant ought not to have to bear. There will be undoubted practical prejudice if these documents are now permitted to be introduced into the trial bundle and received as exhibits.
True it is that I must also consider the interests of justice and the case flow management aspect of the tender as discussed in cases like Aon.[1] In that regard I accept that the documents are not unknown to the defendant. They were discovered. But the salient fact is that, until now, the plaintiff has never expressed an intention to rely on the documents in evidence.
[1] Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175.
There has been sufficient opportunity to do so; for example:
•in nominating documents for the trial bundle;
•in early December 2018 before Mr Craven gave evidence - when it was apparent that the contents of the Schedule C evidence as verified by Mr Craven (and to which these two categories of documents are potentially relevant) was in issue; and
•at the time of the court's orders made 5 February 2019 as to the documentary tender.
I mention the last time - the date of 5 February 2019 - because that was an obvious time to mention that these documents would be relied on. Despite the asseveration in Mr Nairn's affidavit I do not accept that these two categories of documents fall within the class of weekly report or daily job sheet. Indeed, Mr Craven's witness statement specifically distinguishes the Daily Activity Reports from the daily job sheets. So, strictly, these two classes of documents are outside the accepted categories which could have been included in the intended documentary tender.
I am satisfied that the plaintiff had sufficient earlier opportunity, which was not availed of, in which it could have sought to rely on these documents. It is now too late to do so without unjustifiable prejudice to the defendant. That is a material factor insofar as leave is now required to introduce these documents into the trial bundle.
I understood the plaintiff to seek to justify the late inclusion of these documents on the basis that they were source documents which might corroborate the Schedule C tables and evidence. It is said that the materials will be referred to if and to the extent that there is any attack or criticism on the Schedule C spreadsheet evidence (see ts 4759 and ts 4761). In relation to that, however, as I read Mr Craven's evidence as to the compilation of the Schedule C spreadsheet evidence, he did not rely on either of the two disputed categories of documents in compiling the Schedule C spreadsheet evidence.
Mr Craven says that the starting point for Schedule C was the daily job sheets (par 916). He then details other records relied on besides the daily job sheets (par 924 to par 948). These include:
•Gerard Scully records (par 926 to par 945). In particular these include a spreadsheet maintained by Mr Scully and are said to be the other key source of information for the Schedule C evidence (par 926).
•Accommodation records (par 924.2.1).
•Pre‑start sheets and breath and alcohol test sheets (par 924.2.2).
•Project invoices (par 946 to par 947).
•Specific pieces of project documentation to determine locations (par 948 and par 953 to par 965).
I accept that Mr Craven does refer to the Daily Activity Reports. See eg in Mr Craven's main statement at par 938.2, par 939 and par 943. But, importantly, they are not mentioned as having been relied on in compiling the Schedule C spreadsheet evidence. There is also generic evidence as to the Daily Activity Reports elsewhere in Mr Craven's evidence. For example:
•Main statement at (par 91 to par 94).
•Annexure A to the main witness statement (pars 700.3, 721, 728, 735, 942, 749 and 809).
Paragraphs 721, 728, 735, 742, 749 and 801 of Annexure A to Mr Craven's witness statement nominate specific Daily Activity Reports that are said to be relevant to specific CRNs.
Likewise, the Site Activity Requests are not mentioned by Mr Craven as having been relied on for the compilation of his Schedule C evidence. There is, however, some reference to specific Site Access Requests in Annexure A to Mr Craven's witness statement. See for example at pars 658, 677, 771, 776, 916, 922. Also, at pars 804 to 805 of Annexure A evidence is given of a reference spreadsheet (DMC.070.0002.0001) which was compiled using 117 specific Site Activity Requests.
In the course of oral submissions senior counsel for the defendant accepted in substance that the plaintiffs should be permitted to tender the Site Activity Requests relied on for the reference spreadsheet in DMC.070.0002.0001. See ts 4779. I agree. The reliance on those specific documents was within the reasonable contemplation of the defendant from the time Mr Craven's witness statement was served. So I will receive the tender of the 117 Site Access Requests relied on for the reference spreadsheet in DMC.007.0002.0001. There will also be leave to augment the trial bundle accordingly.
By parity of reasoning I consider there is not undue prejudice in receiving, within the trial bundle and into evidence as exhibits, those Daily Activity Reports and Site Access Requests which are specifically mentioned in Mr Craven's witness statement. These are:
(1)as to the Daily Activity Reports, those mentioned at pars 721, 728, 735, 742, and 749 of Annexure A to Mr Craven's witness statements; and
(2)as to the Site Activity Requests, those mentioned at pars 658, 677, 771, 776, 916, and 922 of Annexure A to Mr Craven's witness statement.
Otherwise the tender of the Site Access Records (item 1(a)) and the Daily Activity Reports (item 1(b)) is rejected.
Conclusion
It will be necessary for the plaintiff to prepare a new tender list in conformity with these reasons. The plaintiff should include, separately, a list of those documents never objected to. Otherwise the revised tender list should address the documents by category in accordance with the categories as identified in the defendant's objection schedule. That will assist in review of the revised tender list.
The plaintiff's revised tender list should be prepared and provided to the defendant's solicitors by 4 pm on Wednesday 10 April 2019. They should raise any issues by 4 pm on Friday 12 April 2019. If there are any questions as to whether, in conformity with these reasons, documents should or should not be included in the tender, it will be necessary for a hearing to be convened. Otherwise, if there is agreement, I will simply admit the documents into evidence in accordance with that agreement.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EP
Research Associate/Orderly to Master Sanderson10 APRIL 2019
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