Downer Utilities Australia Pty Ltd v Alinta Energy Transmission (Chichester) Pty Ltd - [2022] WASC 354

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   DOWNER UTILITIES AUSTRALIA PTY LTD -v- ALINTA ENERGY TRANSMISSION (CHICHESTER) PTY LTD [2022] WASC 354
CORAM:   REGISTRAR HOSKING
HEARD:   21 OCTOBER 2022
DELIVERED          :   25 OCTOBER 2022
FILE NO/S:   CIV 1616 of 2022
BETWEEN:   DOWNER UTILITIES AUSTRALIA PTY LTD
Plaintiff
AND
ALINTA ENERGY TRANSMISSION (CHICHESTER) PTY LTD
First Defendant
ALINTA ENERGY (CHICHESTER) PTY LTD
Second Defendant

Catchwords:

Practice and procedure ‑ Interlocutory application ‑ Application for leave to cross-examine on pre‑action discovery application

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	Mr B Millar
First Defendant	:	Mr S K Dharmananda SC & Mr N L Pham
Second Defendant	:	Mr S K Dharmananda SC & Mr N L Pham

Solicitors:

Plaintiff	:	Ashurst Australia
First Defendant	:	Herbert Smith Freehills
Second Defendant	:	Herbert Smith Freehills

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

Duro Felguera Australia Pty Ltd v Samsung C&T Corporation [2015] WASC 484
Matthews v SPI Electricity Pty Ltd [2013] VSC 422
Naughton v GRC Group Pty Ltd (in liq) [2020] WASC 176
New South Wales Solicitors Mutual Indemnity Fund v Hancock Family Memorial Foundation Ltd [No 2] [2009] WASCA 146
Tyco Australia Pty Ltd v Leighton Contractors Pty Ltd [2005] FCAFC 115; (2005) 142 FCR 428
Yunghannes v Elfic Pty Ltd [2009] 25 VR 613

REGISTRAR HOSKING:

Introduction

This is an application for leave to cross‑examine on a pre‑action discovery application. The pre‑action discovery application was commenced by originating summons filed on 16 June 2022. Pursuant to the Rules of the Supreme Court 1971 (WA) (RSC) O 26A r 4, the plaintiff (Downer) seeks pre‑action discovery from the defendants (Alinta) in relation to 10 categories of documents.
Downer and Alinta are parties to two engineer, procure and construct contracts (EPC Contracts) that relate to the Chichester Solar Gas Hybrid Project in the Pilbara region. Alinta are the Principals and Downer is the Contractor under each EPC Contract. Both EPC Contracts provide for the appointment of a Supervisor, who could be, and was, an employee of Alinta. The EPC Contracts provide (among other things) that when performing its functions, the Superintendent must act honestly, fairly and reasonably.
Downer alleges there are matters which suggest that in the appointment to the role of Superintendent and the subsequent exercise of its functions, the Superintendent has ceased to be a free agent and has been improperly influenced by Alinta such that the assessment of Downer's rights under the EPC Contracts has been impacted.
Downer seeks pre‑action discovery from Alinta so Downer may be in a position to determine whether to commence proceedings against Alinta in relation to Alinta's conduct concerning the appointment of the Superintendent and interference with the exercise of its functions.
On 16 June 2022, Downer filed two affidavits in support of its pre‑action discovery application; an affidavit of Matthew Phillip Wood affirmed on 19 April 2022 (First Wood Affidavit) and an affidavit of Catherine Williams affirmed on 14 April 2022. On 15 August 2022, Downer filed submissions in support of its application for pre‑action discovery.
On 5 September 2022, Alinta filed an application seeking leave to cross‑examine Mr Wood at the hearing of the pre‑action discovery application (Cross‑examination Application). Alinta also filed submissions opposing Downer's pre‑action discovery application and submissions in support of the Cross‑examination Application. On 6 September 2022, Alinta filed an affidavit of Ante Golem sworn on that date.
Downer opposes Alinta's Cross‑examination Application. On 16 September 2022, Downer filed responsive submissions in support of its pre‑action discovery application, submissions opposing the Cross‑examination Application, a second affidavit of Mr Wood (Second Wood Affidavit) and an affidavit of Matthew Ian Blycha both affirmed on 16 September 2022.
The Cross‑examination Application was heard on 21 October 2022. At that hearing, counsel for the parties agreed the affidavits should be considered only for the purpose of the Cross‑examination Application and otherwise not be taken as read or tendered.
For the reasons that follow, leave will not be granted to cross‑examine Mr Wood at the hearing of the pre‑action discovery application and the Cross‑examination Application is dismissed.

Legal principles

Pursuant to the RSC O 36 r 2(3), evidence may be given by affidavit upon any originating summons and the court may order the attendance for cross‑examination of the deponent of such an affidavit.
The parties agree Downer's application for pre‑action discovery is interlocutory in character.
The court has a discretion to permit cross‑examination in interlocutory applications but that discretion will be exercised sparingly. The court will permit cross‑examination where the interests of justice require it.[1]
[1] Duro Felguera Australia Pty Ltd v Samsung C&T Corporation [2015] WASC 484 [39].
Therefore, the question is whether a fair resolution of Downer's application for pre‑action discovery requires that, in the interests of justice, the Cross‑examination Application be granted.
In Naughton v GRC Group Pty Ltd (in liq),[2] Registrar Whitbread set out the considerations relevant to determining an application to cross‑examine on an interlocutory application. The Registrar referred to Matthews v SPI Electricity Pty Ltd,[3] in which Derham AsJ stated at [28]:
An examination of the authorities shows that the variety of circumstances in which it may be appropriate to allow cross‑examination varies according to the nature of the application and the facts of the case. The overriding principle is that of procedural fairness. There are, however, a number of factors that have been found relevant to granting leave to cross‑examine, as follows:
(a)where the credit of the witness is important to resolving the interlocutory application;
(b)the interlocutory application requires the establishment of material facts;
(c)there is a relevant factual dispute which requires cross‑examination for its resolution;
(d)the interlocutory application is unusual and it is difficult to know what issues will eventually be relevant.
[2] Naughton v GRC Group Pty Ltd (in liq) [2020] WASC 176 [26] ‑ [28].
[3] Matthews v SPI Electricity Pty Ltd [2013] VSC 422.
With reference to Matthews at [29] and Yunghannes v Elfic Pty Ltd,[4] Registrar Whitbread considered the factors that will exclude, or limit, cross‑examination include:
(a)that the application is not made bona fide to test an issue of material fact on the interlocutory application, but rather to engage in a rehearsal of issues relevant to the trial;
(b)the extent to which the pressure of the business of the Court permits cross‑examination;
(c)where, insofar as there are inconsistencies in the evidence, or allegations of recent invention, such matters can be dealt with in submissions;
(d)the fact that it is undesirable (except in compelling circumstances) to permit a party to have the opportunity at an interlocutory stage to cross‑examine an opposing party upon an issue of fact which goes to the core of the proceeding; and
(e)that the Court would not be assisted by the cross‑examination.[5]
[4] Yunghannes v Elfic Pty Ltd [2009] 25 VR 613.
[5] Naughton [27].
In Tyco Australia Pty Ltd v Leighton Contractors Pty Ltd,[6] Hill J (Hely and Conti JJ agreeing) commented that although issues arising in a pre‑action discovery application are very limited, they may involve a factual dispute. Hill J stated at [36]:
Indeed, it is clear in my mind that there are raised contestable issues of both objective and subjective fact.
[6] Tyco Australia Pty Ltd v Leighton Contractors Pty Ltd [2005] FCAFC 115; (2005) 142 FCR 428, 438 [36] ‑ [38].
Senior counsel for Alinta submits the same position arises in this application. Counsel for Downer emphasises that factual issues must actually be raised and be in contest.

The parties' submissions

Alinta's submissions

The Cross‑examination Application is premised on the basis that there are contested issues of fact arising in the pre‑action discovery application.[7]
[7] Defendants' submissions for orders requiring attendance for cross‑examination filed 5 September 2022 (Defendants' Cross‑examination Submissions) [6], ts 21 October 2022, 35.
Alinta seeks to cross‑examine Mr Wood on three matters:
(a)the information currently available to Downer and why Downer considers that information is not sufficient to enable it to decide whether to commence proceedings against Alinta;
(b)whether Downer has already decided to commence proceedings against Alinta; and
(c)the sequence of events leading up to the filing of Downer's application for pre‑action discovery.[8]
[8] Defendants' Cross‑examination Submissions [7] ‑ [11].
As to the first matter, Alinta submits a key difficulty with the pre‑action discovery application is that Downer already has sufficient information to decide whether to commence proceedings against Alinta. Alinta contends the court's power to order pre‑action discovery under the RSC O 26A r 4 is therefore not engaged.
Alinta submits that while the sufficiency of information is an objective standard, it is determined by reference to the knowledge and circumstances of the particular applicant.[9] Further, that fairness dictates Alinta should be allowed to test Mr Wood's evidence on these matters, which, at present, rises no higher than an assertion that Downer does not have enough information.
[9] New South Wales Solicitors Mutual Indemnity Fund v Hancock Family Memorial Foundation Ltd [No 2] [2009] WASCA 146 [14].
Secondly, Alinta seeks to cross‑examine Mr Wood on whether Downer has already decided to commence proceedings against Alinta.
Alinta submits there is a clear tension between Mr Wood's statement in the First Wood Affidavit that no such decision has been made[10] and evidence elsewhere in that affidavit that, in his view, Alinta has improperly interfered with the performance of the Superintendent's functions.[11] Senior counsel for Alinta submits it is only fair that Alinta be afforded an opportunity to explore the tension in Mr Wood's affidavits through cross‑examination.[12]
[10] First Wood Affidavit [116].
[11] First Wood Affidavit [43] ‑ [45] and [112].
[12] ts, 7 ‑ 8.
Senior counsel observes in the Second Wood Affidavit, Mr Wood deposes to having read (among other things) Alinta's submissions for orders requiring his attendance for cross‑examination. Senior counsel submits Mr Wood 'becomes a combatant' with respect to the issue of whether he should be cross‑examined and gives evidence including:[13]
7I do not consider that Downer has sufficient information so as to be in position to allow Downer to make a decision to commence legal proceedings against Alinta…
8As stated in My First Affidavit, the Aconex Documentation and the Overt Reference Documentation appears to show Alinta interfering with the Superintendent, however it is possible there is a benign explanation for what appears to have occurred.
9For example, the Overt Reference Documentation indicates there have been private communications between Alinta and the Superintendent concerning the Superintendent's performance of his role, though it may be that these communications did not occur in the manner suggested, or if they did occur, that they did not impact the Superintendent in performing his role.
10Equally, the Aconex Documentation appears to show that letters drafted by the Superintendent were in fact authorised by persons directly acting for Alinta and on Alinta's instructions, though it is possible that the processes that Alinta undertakes in relation to producing Project correspondence explain what has occurred.
11As a commercial manager in a major construction company I understand the seriousness of alleging that the role of the Superintendent has been compromised. Without seeing and understanding the nature of the communications I do not have enough information to form a view as to whether to recommend to management the serious step of commencing what will inevitably be protracted legal proceedings.
12I stated in My First Affidavit that Downer has not yet made a decision to commence proceedings against Alinta in relation to interference with the Superintendent and the Superintendent's failure to remain impartial. As at the date of this affidavit that position has not changed.[14]
[13] ts, 7.
[14] Second Wood Affidavit [7] ‑ [12].
Senior counsel observes there is no reference to a 'benign explanation' in the First Wood Affidavit and submits this volte‑face is designed to defeat Alinta's interest in exposing the nature of the material available to Downer and the decision made by Downer with respect to the commencement of proceedings.[15]
[15] ts, 7.
Further, the suggestion that there may be a benign explanation for what occurred does not support the proposition that Downer does not have sufficient information. Rather, it reveals that Downer is seeking to confirm and strengthen its case. Alinta is seeking to cross‑examine on that, to test whether that is, in fact, what Downer is seeking to do.[16]
[16] ts, 8 ‑ 9.
Senior counsel submits the assertion in the Second Wood Affidavit, that no decision has been made to commence proceedings, is made in circumstances where Mr Wood has read Alinta's submissions and understands Alinta wishes to cross‑examine him on particular topics. Further, that Mr Wood's evidence is at best self‑serving and at worst is designed to defeat Alinta's Cross‑examination Application.[17]
[17] ts, 8.
Alinta contends that if Downer has, in fact, already made a decision to commence proceedings, that would provide a further reason why the power to order pre‑action discovery is not enlivened and that this is a matter Alinta is entitled to test through cross‑examination.[18]
[18] Defendants' Cross‑examination Submissions [10].
Thirdly, Alinta wishes to cross‑examine Mr Wood on the sequence of events leading up to the filing of Downer's application for pre‑action discovery.
Alinta submits the sequence of events (including the fact that the First Wood Affidavit was affirmed two months before the application was made) supports an inference that the application is motivated by tactical considerations on the part of Downer. Further, this bears on whether, if the power to order pre‑action discovery is engaged, the court should exercise its discretion in Downer's favour.[19]
[19] Defendants' Cross‑examination Submissions [11].
Additionally, Alinta suggests the matters on which it seeks to cross‑examine Mr Wood are limited and the cross‑examination is unlikely to take much time. Given this, and the importance of the matters to the fair resolution of Downer's application, Alinta submits the interests of justice require that it should be permitted to cross‑examine Mr Wood.[20]
[20] Defendants' Cross‑examination Submissions [12].
In response to Downer's submission that Alinta has not raised two of the three matters for cross‑examination as factual disputes, senior counsel for Alinta contends Downer proceeds on the basis that submissions are pleadings and Alinta must plead every matter sufficiently to identify a contested issue. Senior counsel submits that is not the position and it is inappropriate to view the matter through that lens.[21] Further, Alinta is not confined by the material it put forward in its written submissions as if it were a pleading. Senior counsel suggests that fairly analysing the material before the court, Alinta has raised the issue about the sufficiency of information and the question as to whether a decision to commence proceedings has already been made.[22]
[21] ts, 31.
[22] ts, 34.
As to Downer's submission that without the cross‑examination of Mr Wood one day of the pre‑action discovery application hearing would be saved, senior counsel for Alinta observes two days have been set aside by agreement of the parties. Further, case management considerations do not necessitate a reversal of the time that has been set aside by the court for the determination of the pre‑action discovery application.[23]

Downer's submissions

[23] ts, 34.

Downer contends the Cross‑examination Application should be dismissed on the basis that Alinta has not identified any material factual dispute that would require the court to grant leave and permit cross‑examination.[24] Counsel for Downer suggests this application turns on the consideration set out in Matthews at [28(c)], that there is a relevant factual dispute which requires cross‑examination for its resolution.
[24] Plaintiff's submissions opposing defendants' application for orders requiring attendance of Mr Matthew Phillip Wood for cross‑examination filed 16 September 2022 (Plaintiff's Cross‑examination Submissions) [1].
Counsel submits the matters Alinta seeks to cross‑examine Mr Wood on are not relevant factual disputes raised by Alinta in opposition to Downer's pre‑action discovery application.[25] Further, that relevantly, Alinta's opposition to the pre‑action discovery application is solely based on the argument that Downer has sufficient information to decide whether to commence proceedings.[26]
[25] ts, 24.
[26] ts, 14.
Counsel for Downer emphasises that Alinta does not contend Downer has already decided to commence proceedings. Rather, Alinta contends Downer has already formed the view that Alinta improperly interfered with the Superintendent's functions and it should therefore be inferred that Downer has enough information to decide whether to commence. Counsel submits the fact Downer has not decided to commence proceedings is not in dispute.[27]
[27] ts, 14 - 15, 18, 28 ‑ 29.
Counsel observes that Alinta does not base its case on the allegation that the project documents referred to by Downer are sufficient. That is, Alinta does not point to any of the correspondence and suggest that on an objective view, this is sufficient and Mr Wood's view is therefore mistaken.[28]
[28] ts, 18.
Counsel contends Alinta must make submissions about matters in order for them to be in contest and says Alinta has not done so for two of the three matters on which cross‑examination is sought.[29]
[29] ts, 20.
Counsel suggests even if there are relevant factual disputes, cross‑examination is not needed to resolve them.[30] Mr Wood deposes to the belief that Alinta has interfered with the performance of the Superintendent's functions. Counsel submits that Mr Wood's belief is based on factual material and the court will go to that factual material and form a view on whether that information is sufficient for Downer to decide whether to commence proceedings.[31] Further, that questions of law and alleged inconsistency in Mr Wood's evidence are properly matters for submissions.[32]
[30] ts, 24.
[31] ts, 16 ‑ 17.
[32] ts, 24.
The first issue on which Alinta seeks to cross‑examine Mr Wood is the information currently available to Downer and why it considers that information is not sufficient to enable it to decide whether to commence.
Counsel submits that in the First Wood Affidavit, Mr Wood explains in detail what information Downer has, why that gives rise to concerns, and why he considers the information is not sufficient to launch costly and protracted legal action. Downer disputes Alinta's contention that Mr Wood's evidence (that Downer does not have sufficient information to decide to commence proceedings) is a bare assertion. Counsel submits Mr Wood descends to particularity including in relation to the Overt Reference Documentation, Aconex Documentation, and Alinta's failure to substantively respond to Downer's request for information and concerns.[33]
[33] ts, 13 ‑ 14.

Downer submits the Second Wood Affidavit confirms Downer does not have sufficient information so as to be in a position to allow it to commence legal proceedings. Further, that none of the documents relied on by Downer contain any material facts approximating 'sufficient information' to defeat Downer's application.[34]
[34] Plaintiff's Cross‑examination Submissions [6].
Downer observes Alinta has not pointed to any evidence or identified any material fact on the face of the Overt Reference Documentation or the Aconex Documentation which would be sufficient to decide whether to commence proceedings.[35]
[35] Plaintiff's Cross‑examination Submissions [7].
Downer submits any dispute about the 'sufficiency' of the information available to Downer to form a view as to whether to commence proceedings is properly a matter for submissions.[36] Further, that the cross‑examination of Mr Wood on his subjective opinion on that ultimate question is not required.[37]
[36] Plaintiff's Cross‑examination Submissions [8].
[37] ts, 26.
The second proposed matter for cross‑examination is whether Downer has already decided to commence proceedings. Counsel submits that is not in dispute as Mr Wood's evidence that Downer has not yet decided is not challenged in Alinta's submissions, and neither could it have properly been.[38]
[38] ts, 28 ‑ 29.
Downer contends the Second Wood Affidavit clearly outlines that Downer has not yet decided to commence proceedings against Alinta. Further, that any submission from Alinta that there is a 'clear tension' between Mr Wood's evidence is properly a matter for submission.[39]
[39] Plaintiff's Cross‑examination Submissions [9].
Thirdly, Alinta seeks to cross‑examine Mr Wood on the sequence of events leading up to the filing of Downer's application for pre‑action discovery.
Downer submits the dates of swearing the affidavit evidence filed with the pre‑action discovery application and the date of filing the application are not contested questions of fact. It also submits that any arguments regarding the inferences that can be drawn from the chronology of the matter are properly matters for submission.[40]
[40] Plaintiff's Cross‑examination Submissions [10].
Counsel suggests if Mr Wood is cross‑examined and Alinta subsequently changes its case at the hearing and seeks to rely on that evidence, that would cause actual and significant procedural unfairness to Downer.[41]
[41] ts, 28 ‑ 30.
As to Alinta's submission that the matters on which Alinta seeks to cross‑examine Mr Wood are limited and unlikely to take much time, counsel for Downer contends that is not a proper reason to exercise a discretion that is to be exercised sparingly and cautiously.[42]
[42] ts, 26.
Counsel for Downer submits that requiring Mr Wood to attend for cross‑examination would increase the time for the hearing, which increases the use of available judicial resources and means those resources would not be available for other business of the court.[43] Counsel refers to the memorandum of conferral filed in support of Downer's pre‑action discovery application, in which Downer estimated the hearing would take half a day.[44] By consent, the parties subsequently sought the listing of the application for not more than two days.[45] Counsel submits it may be inferred the two day listing was sought based on Alinta's estimate that more than one day would be needed in order to accommodate the cross‑examination of Mr Wood. Counsel contends that without Mr Wood's cross‑examination, the application would not be more than one day, in effect saving a day for the court.[46]
[43] ts, 25.
[44] Memorandum of Conferral filed 16 June 2022.
[45] Memorandum of Consent Orders filed 22 July 2022.
[46] ts, 25 ‑ 26.

Disposition

The Cross‑examination Application is brought on the basis that there are contested issues of fact arising in the pre‑action discovery application. [47]
[47] Defendants' Cross‑examination Submissions [6], ts, 35.
It is necessary to consider whether the issues on which Alinta seeks to cross‑examine Mr Wood are relevant factual disputes that require cross‑examination for their resolution.[48]
[48] Matthews [28(c)].
Alinta wishes to cross‑examine Mr Wood on the information currently available to Downer and why Downer considers that information is not sufficient to enable it to decide whether to commence proceedings.
Mr Wood deposes Downer has not been able to obtain sufficient information to enable the decision to commence proceedings against Alinta to be made.[49] Mr Wood also states that in order for Downer to make an informed decision about whether to commence proceedings, Downer wants to take legal advice informed by the documents sought in the pre‑action discovery application.[50] Further, that he does not have enough information to form a view as to whether to recommend to management the serious step of commencing what will inevitably be protracted legal proceedings.[51]
[49] First Wood Affidavit [117]; Second Wood Affidavit [7].
[50] First Wood Affidavit [118].
[51] Second Wood Affidavit [11].
Alinta submits Downer already has sufficient information to decide whether to commence proceedings against Alinta.[52] In aid of that submission, Alinta wishes to cross‑examine Mr Wood on the information currently available to Downer and why Downer considers it is not sufficient. Alinta submits that fairness dictates that it should be allowed to test Mr Wood's evidence on these matters, which, at present, rises no higher than an assertion that Downer does not have enough information.[53]
[52] Defendants' submissions opposing plaintiff's application for pre‑action discovery filed 5 September 2022 (Defendants' Submissions) [22] ‑ [48]; Defendants' Cross‑examination Submissions [8].
[53] Defendants' Cross‑examination Submissions [9].
Alinta contends that on the evidence and Downer's own submissions it is clear Downer has already formed the view that Alinta improperly interfered with the Superintendent's functions. Further, that belies the proposition that Alinta does not have sufficient information to enable it to decide whether to commence proceedings against Alinta.[54]
[54] Defendants' Submissions [23].
I accept there is a relevant factual dispute regarding whether Downer has sufficient information to decide whether to commence proceedings.
However, I am required to have regard to the factors that will exclude, or limit, cross‑examination.[55]
[55] Naughton [27] ‑ [28].
First, where an application is not made bona fide to test an issue of material fact on the interlocutory application, but rather to engage in a rehearsal of the issues relevant to the trial.[56] I accept Alinta's application to cross‑examine Mr Wood on the issue of the sufficiency of information currently available to Downer is made bona fide. However, I do not consider that to be in and of itself sufficient to exercise the discretion to permit cross‑examination.
[56] Naughton [27(a)].
Secondly, the extent to which the pressure of the business of the court permits cross‑examination.[57] I understood Downer's submissions regarding cross‑examination of Mr Wood increasing the use of available judicial resources to be directed towards this factor.
[57] Naughton [27(b)].
The parties sought orders by consent which contemplated (among other things):
(a)Alinta filing any application for leave to cross‑examine the deponents of affidavits sought to be relied on by Downer; and
(b)the pre‑action discovery application being listed for not more than two days.[58]
[58] Memorandum of Consent Orders filed 22 July 2022.
The pre‑action discovery application has been listed for two days and the parties appear to have contemplated any cross‑examination taking place within that timeframe. In those circumstances, I do not consider the pressure of the business of the court to be a factor limiting or excluding cross‑examination. However, simply because the time is available does not mean the discretion to permit cross‑examination should be exercised.
Thirdly, where, insofar as there are inconsistencies in the evidence, or allegations of recent invention, such matters can be dealt with in submissions.[59]
[59] Naughton [27(c)].
To the extent there is 'tension' or alleged inconsistencies between the opinions expressed by Mr Wood regarding Alinta's conduct, and his evidence that Downer has not been able to obtain sufficient information to decide whether to commence proceedings, I consider such matters can be dealt with in submissions. This consideration therefore weighs against the exercise of the discretion to permit cross‑examination.
Fourthly, whether or not the court would be assisted by the cross‑examination of Mr Wood on the information currently available to Downer and why Downer considers it not sufficient to enable it to decide whether to commence proceedings.[60]
[60] Naughton [27(e)].
Whether an applicant for pre‑action discovery has sufficient information to enable a decision to be made to commence proceedings is to be determined objectively. However, it is to be determined by reference to the knowledge and circumstances of the particular applicant.[61]
[61] New South Wales Solicitors Mutual Indemnity Fund v The Hancock Family Memorial Foundation Ltd [No 2] [14] and [60].
Accordingly, the court will objectively determine whether Downer has sufficient information to enable a decision to be made to commence proceedings, by reference to the knowledge and circumstances of Downer as deposed to by Mr Wood.
I am not persuaded that the court would be assisted by the cross‑examination of Mr Wood on the information currently available to Downer and why Downer considers it not sufficient to make that decision. This weighs against the exercise of the discretion to permit cross‑examination on this issue.
The discretion to grant leave to cross‑examine on an interlocutory application must be exercised sparingly and where the interests of justice require it.[62] In all of the circumstances and considering the relevant factors as set out above, I am not satisfied a fair resolution of the pre‑action discovery application requires, in the interests of justice, the cross‑examination of Mr Wood on the first issue regarding the sufficiency of information currently available to Downer.
[62] Duro [39].
Turning to the second issue on which cross‑examination is sought, whether Downer has already decided to commence proceedings against Alinta.
I acknowledge that whether Downer has already decided to commence proceedings is a material fact on the pre‑action discovery application. I accept Alinta's application to test this issue is made bona fide.
However, I do not accept there is a relevant factual dispute regarding whether Downer has already decided to commence proceedings against Alinta, which requires cross‑examination for its resolution.
In the First Wood Affidavit, Mr Wood deposes that Downer has not yet made a decision to commence proceedings against Alinta.[63] In the Second Wood Affidavit, Mr Wood refers to his earlier evidence and states that position has not changed.[64]
[63] First Wood Affidavit [116].
[64] Second Wood Affidavit [12].
Alinta submits there is a clear tension between Mr Wood's statement that no such decision has been made[65] and Mr Wood's evidence that, in his view, Alinta has improperly interfered with the performance of the Superintendent's functions.[66] Senior counsel for Alinta submits it is only fair that Alinta be afforded an opportunity to explore the tension in Mr Wood's affidavits through cross‑examination of Mr Wood.[67]
[65] First Wood Affidavit [116].
[66] First Wood Affidavit [43] ‑ [45] and [112].
[67] ts, 7 ‑ 8.
To the extent there is a 'tension' or alleged inconsistencies in Mr Wood's evidence, my view is that such matters can be dealt with in submissions. I also consider the allegations made by Alinta regarding the Second Wood Affidavit being self‑serving (in circumstances where Mr Wood has read Alinta's Cross‑examination Submissions and understands Alinta wishes to cross‑examine him on particular matters) can be dealt with in submissions. This is therefore a factor that weighs against the exercise of the discretion to permit cross‑examination on this issue.
Again, I am not persuaded the court would necessarily be assisted by the cross‑examination of Mr Wood on this issue. There is presently evidence before the court on the issue of whether Downer has already decided to commence proceedings against Alinta. As set out above, my view is that to the extent there is 'tension' or alleged inconsistencies in that evidence, such matters can be dealt with in submissions.
Even if I was to accept that there is a factual dispute regarding whether Downer has already decided to commence proceedings against Alinta, I would not exercise the discretion to permit cross‑examination on this issue. Again, that discretion is to be exercised sparingly. In all of the circumstances, I would not be satisfied that a fair resolution of the pre‑action discovery application requires that, in the interests of justice, Mr Wood be cross‑examined on this issue.
The third matter on which Alinta seeks to cross‑examine Mr Wood is the sequence of events leading up to the filing of Downer's application for pre‑action discovery. In my view, Alinta has not identified a relevant factual dispute in relation to this issue. Nor do I consider that the application to cross‑examine on this matter relates to an issue of material fact on the pre‑action discovery application.
Rather, Alinta submits the sequence of events leading up to the filing of the pre‑action discovery application supports an inference that the application is motivated by tactical considerations on the part of Downer.[68]
[68] Defendants' Cross‑examination Submissions [11].
I do not consider the sequence of events leading up to the filing of Downer's application for pre‑action discovery to be contested questions of fact. Nor do I consider that the court would be assisted by the cross‑examination of Mr Wood on this issue. Further, I accept Downer's position that any arguments regarding the inferences that can be drawn from the chronology of the matter are properly matters for submission.
In my view, it is not appropriate to exercise the discretion to permit the cross‑examination of Mr Wood on the sequence of events leading up to the filing of the application.

Conclusion

In all of the circumstances, I do not consider a fair resolution of the pre‑action discovery application requires, in the interests of justice, that the Cross‑examination Application be granted. The Cross‑examination Application will be dismissed.
Costs should follow the event. Alinta should pay Downer's costs of the Cross‑examination Application, to be taxed if not agreed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IJ
Associate to Registrar Hosking
25 OCTOBER 2022