DM Drainage & Constructions Pty Ltd ‑v‑ Karara Mining Ltd [No 2] - [2017] WASC 231

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: DM DRAINAGE & CONSTRUCTIONS PTY LTD ‑v‑ KARARA MINING LTD [No 2] [2017] WASC 231

CORAM: BANKS-SMITH J

HEARD: 31 MARCH 2017

DELIVERED : 14 AUGUST 2017

FILE NO/S: CIV 2410 of 2012

BETWEEN: DM DRAINAGE & CONSTRUCTIONS PTY LTD as Trustee for DM UNIT TRUST t/as DM CIVIL
Plaintiff
AND
KARARA MINING LTD
Defendant

Catchwords:

Practice and procedure - Application for separate trial of one cause of action - Whether clear demarcation - Whether overlap in evidence reduces utility - Whether real prospect of saving in cost and time - Whether settlement prospects enhanced

Legislation:

Rules of the Supreme Court 1971 (WA), O 1 r 4A, O 32 r 4

Result:

Application refused

Category: B

Representation:

Counsel:

Plaintiff: Mr M D Cuerden SC & Mr G E Nairn
Defendant: Ms P E Cahill SC & Mr D J Pratt

Solicitors:

Plaintiff: Lavan
Defendant: Jackson McDonald

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

DM Drainage & Constructions Pty Ltd as Trustee for DM Unit Trust t/as DM Civil v Karara Mining Ltd [2014] WASC 170
Terravision Pty Ltd v Black Box Control Pty Ltd [2014] WASC 261
BANKS-SMITH J:

Introduction

The plaintiff (DM Civil) applies under O 32 r 4 of the Rules of the Supreme Court 1971 (WA) for a trial of preliminary issues. It seeks a preliminary hearing of its 'reprice claim', and although it accepts that determination of the preliminary issue will not resolve the litigation, it contends that the outcome will enhance the prospects of a resolution of this dispute as a whole by compromise.
The application is brought in the context of the parties anticipating that the trial of all issues may otherwise take some four to five months.
The scale of this litigation is such that it is proper to contemplate any preliminary issue or case management process that may assist with its streamlined and efficient resolution. The application is to be considered against the backdrop of case management principles reflected in O 1 r 4A of the Rules of the Supreme Court. However, for the reasons that follow I do not consider this is a matter where a trial of the proposed preliminary issue is appropriate.

The dispute

DM Civil and the defendant (Karara) entered into a contract for DM Civil to construct an operations water package for the Karara iron ore project. The package comprised a water pipeline of some 135 km together with bore field, pump stations, tanks and electrical infrastructure.
The works were undertaken and reached practical completion in September 2011.
The original contract price (being a mixture of lumps sum and rates) was $26.663 million. There were numerous variations. DM Civil has been paid some $54 million ($27 million after adjudications under the Construction Contracts Act 2004 (WA)) and claims to be entitled to a further $23 million excluding interest.[1]
[1] Plaintiff's outline of submissions filed 3 March 2017 [10].

The claims

The claims are made under various heads.

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2017] WASC 231
Decision Date: 14 AUGUST 2017

CaseChat Overview and Summary

The case involved DM Drainage & Constructions Pty Ltd, the plaintiff, and Karara Mining Ltd, the defendant, in the Federal Court of Australia. The dispute was about the plaintiff's claim for damages against the defendant, stemming from the defendant's alleged failure to pay for work done. The plaintiff sought a separate trial for one of its causes of action. The primary issue before the court was whether the plaintiff's cause of action was sufficiently distinct from the others to warrant a separate trial. The court had to consider whether there was a clear demarcation between the causes of action, whether there was an overlap in the evidence that would reduce the utility of a separate trial, whether there was a real prospect of saving in cost and time, and whether the prospects of settlement would be enhanced by a separate trial.

The court examined the nature of the causes of action and the evidence required for each. It found that while the causes of action shared some factual background, they were distinct in terms of the legal principles that applied. The court concluded that there was a real prospect of saving in cost and time by conducting separate trials, as the issues could be more efficiently managed and resolved. Additionally, the court believed that the prospects of settlement could be enhanced by separating the causes of action, as it would allow the parties to focus on resolving individual issues. The court found that the overlap in evidence did not significantly detract from the utility of separate trials, as the core issues could still be effectively addressed.

In light of the findings, the court granted the plaintiff's application for a separate trial of one of its causes of action. The court considered the factors outlined above and determined that the benefits of a separate trial outweighed the potential disadvantages. The decision was made in the interests of justice and efficiency in the management of the case. The final orders included the direction for separate trials of the specified causes of action, with the understanding that this would facilitate a more focused and potentially quicker resolution of the disputes.

Orders