Foundation Housing Limited v GHD Pty Ltd - [2020] WASC 32

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   FOUNDATION HOUSING LIMITED -v- GHD PTY LTD [2020] WASC 32
CORAM:   MASTER SANDERSON
HEARD:   24 OCTOBER & 26 NOVEMBER 2019
DELIVERED          :   6 FEBRUARY 2020
FILE NO/S:   CIV 1055 of 2017
BETWEEN:   FOUNDATION HOUSING LIMITED
Plaintiff
AND
GHD PTY LTD
First Defendant
DARREN CLIVE BROOKS MOUCHEMORE
Second Defendant

Catchwords:

Practice and procedure - Applications for further and better discovery - Turns on own facts

Legislation:

Nil

Result:

First defendant's application dismissed
Plaintiff's application granted

Category: B

Representation:

Counsel:

Plaintiff	:	Ms K R Lendich
First Defendant	:	Mr I Armeli
Second Defendant	:	No appearance

Solicitors:

Plaintiff	:	Jackson McDonald
First Defendant	:	Armeli & Molony Lawyers
Second Defendant	:	Sparke Helmore Lawyers

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

Mulley & Marney v Manifold (1959) 103 CLR 341

MASTER SANDERSON:

On 21 August 2019, the first defendant filed a chamber summons seeking orders the plaintiff give discovery of certain documents. The documents in question were those set out in sch B of consent orders made 23 May 2019 (as reproduced in a schedule to the chamber summons).[1] In due course I will set out the terms of those orders. However, it is important at the outset to note that this was an application for further and better discovery. It was common ground the plaintiff had provided discovery of certain documents which fell within sch B. It was the first defendant's contention further documents existed which had not been discovered. That means this application is covered by the principles governing applications for further and better discovery rather than the principles applicable to general discovery.
[1] Consent order of Registrar Carey made 23 May 2019.
I mention that because at times the submissions of counsel for the first defendant seem to contemplate some form of discovery wider than anticipated by sch B. Given there was a consent order as to the scope of discovery any orders made on this application must be limited to documents which are captured by sch B.
Also on 21 August 2019 the plaintiff sought further and better discovery from the first defendant. These reasons deal with both applications.
Throughout the submissions both counsel referred to the plaintiff as 'FHL' and the first defendant as 'GHD'. For the sake of consistency I will adopt those descriptions.
The relevant facts were set out in submissions lodged on behalf of FHL on 16 September 2019 in support of its chamber summons. For the purposes of the present application what follows is uncontroversial and is largely taken from those submissions. What I have attempted to do is highlight the nature of the dispute or disputes between the parties. For that reason I have not cross‑referenced various claims to either the re‑amended statement of claim filed 9 October 2019 or the amended defence filed 18 October 2019.
FHL was to develop a youth 'Foyer' hostel in Leederville (Project). It engaged with a number of parties, including GHD, for the delivery of the necessary services for the Project. There was an agreement, or on GHD's case agreements, between FHL and GHD for the provision of services by GHD to FHL in respect of the Project. The services that FHL contends were to be provided by GHD included designer, project manager, superintendent's representative and certifier. The precise scope of the services is an issue in the proceedings. However it appears to be common ground that GHD was engaged to provide the following services:
(a)project management services for each of the phases of the Project;
(b)project manager to at least monitor the progress and performance of the Project;
(c)superintendent to at least monitor construction progress and builders performance including conducting the practical completion inspection, providing practical completion reports and issuing the certificate of practical completion; and
(d)to provide a level of technical review and onsite support in working through the remedy of the facade defects which related to the manufacturer of the window/glazing system, the method of installation and the general workmanship of the façade and window system.
Between 2010 and early 2016 GHD provided the services to FHL. GHD issued invoices from time to time and was paid more than $2.3 million plus GST. The Project itself was constructed by Diploma Construction Pty Ltd, a company now in liquidation, pursuant to a contract between Diploma and FHL. FHL claims the Project had a number of defects. The most important of these appears to be related to windows and the design and construction of the cladding on the building. There are other defects. FHL claims GHD should have ascertained the design and construction defects. GHD denies that is the case. These alleged defects are referred to in GHD's submission as the 'design and defects claims'.[2] FHL claims GHD should bear the costs incurred by FHL in having third parties remedying the design and defects claims. The remedial works were undertaken by a number of third parties - at least 14 in number. These parties are referred to in GHD's submissions as 'the contractors'.[3] All of the invoices were rendered to and paid by FHL. It is the contractual relationship between these contractors and the nature of the work undertaken by them which is central to the first defendant's application.
[2] First defendant's outline of submissions filed 23 September 2019 at par 5.
[3] First defendant's outline of submissions filed 23 September 2019 at pars 6 ‑ 7.
Turning then to the consent orders of 23 May 2019, under sch A there appears the following:
(a)the Project is a reference to the project to procure and construct a Youth 'Foyer' Hostel in Leederville, Western Australia to provide transitional accommodation for West Australian youth and to consist of approximately and 100 apartments (as defined in paragraph 4(a) of the Amended Statement Claim dated 16 November 2018 and paragraph 3 of the First Defendant's Defence dated 6 June 2018); and
(b)document(s) is to be given its broadest meaning and includes without limitation, any or all correspondence, reports, presentations, budgets, contracts, notes, file notes, memoranda, statements, handwritten notes or annotations, drafts, working documents, internal communications, records of internal deliberations, recordings, messages sent electronically (including by email, SMS and MMS messaging).
Although it is not entirely clear from the order it would appear that this introduction, although forming part of sch A, is intended to refer to both schedules. This was not the subject of submissions by either counsel, but I have proceeded on the basis that is the case.
With that as background sch B then reads as follows:
1.Documents that record or evidence the terms of any agreement between FHL and Diploma Construction in relation to the Youth 'Foyer' Hostel in Leederville, Western Australia, including the terms of Diploma Constructions services to be provided by it (first defendant's proposed category 7).
2.To the extent not included in category 7 above, documents recording the scope of work to be performed by Diploma Construction on the Project (first defendant's proposed category 8).
3.Documents between FHL and Diploma in relation to any work and services provided by Diploma in relation to the Youth 'Foyer' Hostel in Leederville, Western Australia (first defendant's proposed category 9).
4.Documents that record or evidence the terms of any agreement between FHL and ARUP Pty Ltd (Australia) in relation to the Youth 'Foyer' Hostel in Leederville, Western Australia, including the terms of ARUP Pty Ltd services to be provided by it (first defendant's proposed category 10).
5.Documents between FHL and ARUP Pty Ltd (Australia) in relation to any work and services provided by ARUP Pty Ltd (Australia) in relation to the Youth 'Foyer' Hostel in Leederville, Western Australia (first defendant's proposed category 11).
6.Documents relating to any inspection carried out by or on behalf of a government agency, and / or fire services in relation to the cladding of the Youth 'Foyer' Hostel in Leederville, Western Australia (first defendant's proposed category 12).
7.Documents that record or evidence the terms of any agreement between, or on behalf of FHL and Blueforce in relation to the Youth 'Foyer' Hostel in Leederville, Western Australia, including the terms of Blueforce's services to be provided by it (first defendant's proposed category 20),
8.Documents between, or on behalf of FHL and Blueforce in relation to any work and services provided by Blueforce in relation to the Youth 'Foyer' Hostel in Leederville, Western Australia (first defendant's proposed category 21).
9.Documents that record or evidence the terms of any agreement between, or on behalf of FHL and JMG Building Surveyors in relation to the Youth 'Foyer' Hostel in Leederville, Western Australia, including the terms of JMG Building Surveyors services to be provided by it (first defendant's proposed category 22).
10.Documents between, or on behalf of FHL and JMG Building Surveyors in relation to any work and services provided by JMG Building Surveyors in relation to the Youth 'Foyer' Hostel in Leederville, Western Australia (first defendant's proposed category 23).
11.Documents that record or evidence the terms of any agreement between, or on behalf of FHL and Natale Group Australia in relation to the Youth 'Foyer' Hostel in Leederville, Western Australia, including the terms of Natale Group Australia's services to be provided by it (first defendant's proposed category 24).
12.Documents between, or on behalf of FHL and Natale Group Australia in relation to any work and services provided by Natale Group Australia in relation to the Youth 'Foyer' Hostel in Leederville, Western Australia (first defendant's proposed category 25).
13.Documents that record or evidence the terms of any agreement between, or on behalf of FHL and NJP Electrical Services in relation to the Youth 'Foyer' Hostel in Leederville, Western Australia, including the terms of NJP Electrical Services' services to be provided by it (first defendant's proposed category 26).
14.Documents between, or on behalf of FHL and NJP Electrical Services in relation to any work and services provided by NJP Electrical Services in relation to the Youth 'Foyer' Hostel in Leederville, Western Australia (first defendant's proposed category 27).
15.Documents that record or evidence the terms of any agreement between, or on behalf of FHL and NS Projects in relation to the Youth 'Foyer Hostel in Leederville, Western Australia, including the terms of NS Projects' services to be provided by it (first defendant's proposed category 28).
16.Documents between, or on behalf of FHL and NS Projects in relation to any work and services provided by NS Projects in relation to the Youth 'Foyer' Hostel in Leederville, Western Australia (first defendant's proposed category 29).
17.Documents that record or evidence the terms of any agreement between, or on behalf of FHL and Rider Levett Bucknall in relation to the Youth 'Foyer' Hostel in Leederville, Western Australia, including the terms of Rider Levett Bucknall's services to be provided by it (first defendant's proposed category 30).
18.Documents between, or on behalf of FHL and Rider Levett Bucknall in relation to any work and services provided by Rider Levett Bucknell in relation to the Youth 'Foyer' Hostel in Leederville, Western Australia (first defendant's proposed category 31).
19.Documents that record or evidence the terms of any agreement between, or on behalf of FHL and Safety Horizons Pty Ltd in relation to the Youth 'Foyer' Hostel in Leederville, Western Australia, including the terms of Safety Horizons Pty Ltd's services to be provided by it (first defendant's proposed category 32).
20.Documents between, or on behalf of FHL and Safety Horizons Pty Ltd in relation to any work and services provided by Safety Horizons Pty Ltd in relation to the Youth 'Foyer' Hostel in Leederville, Western Australia (first defendant's proposed category 33).
21.Documents that record or evidence the terms of any agreement between, or on behalf of FHL and Shade Engineering Pty Ltd in relation to the Youth 'Foyer' Hostel in Leederville, Western Australia, including the terms of Shade Engineering Pty Ltd's services to be provided by it (first defendant's proposed category 34)
22.Documents between, or on behalf of FHL and Shade Engineering Pty Ltd in relation to any work and services provided by Shade Engineering Ply Ltd in relation to the Youth 'Foyer' Hostel in Leederville, Western Australia (first defendant's proposed category 35).
23.Documents that record or evidence the terms of any agreement between, or on behalf of FHL and Trasko Industrial Photographics in relation to the Youth 'Foyer' Hostel in Leederville, Western Australia, including the terms of Trasko Industrial Photographics' services to be provided by it (first defendant's proposed category 36).
24.Documents between, or on behalf of FHL and Trasko Industrial Photographics in relation to any work and services provided by Trasko Industrial Photographics in relation to the Youth 'Foyer' Hostel in Leederville, Western Australia (first defendant's proposed category 37).
26.Documents that record or evidence the terms of any agreement between, or on behalf of FHL and Vision Clad Australia Pty Ltd in relation to the Youth 'Foyer' Hostel in Leederville, Western Australia, including the terms of Vision Clad Australia Pty Ltd's services to be provided by it (first defendant's proposed category 38).
26.Documents between, or on behalf of FHL and Vision Clad Australia Pty Ltd in relation to any work and services provided by Vision Clad Australia Pty Ltd in relation to the Youth 'Foyer' Hostel in Leederville, Western Australia (first defendant's proposed category 39).
27.Documents that record or evidence the terms of any agreement between, or on behalf of FHL and Wood & Grieve Engineers in relation to the Youth 'Foyer' Hostel in Leederville, Western Australia, including the terms of Wood & Grieve Engineers' services to be provided by it (first defendant's proposed category 40).
28.Documents between, or on behalf of FHL and Wood & Grieve Engineers in relation to any work and services provided by Wood & Grieve Engineers in relation to the Youth 'Foyer' Hostel in Leederville, Western Australia. (first defendant's proposed category 41).
29.Documents that record or evidence the terms of any agreement between, or on behalf of FHL and W. Fairweather & Son in relation to the Youth 'Foyer' Hostel in Leederville, Western Australia, including the terms of W. Fairweather & Son services to be provided by it (first defendant's proposed category 42).
30.Documents between, or on behalf of FHL and W. Fairweather & Son in relation to any work and services provided by W. Fairweather & Son in relation to the Youth 'Foyer' Hostel in Leederville, Western Australia (first defendant's proposed category 43).
Although there are 30 separate sets of documents referred to there is a consistency in the categories. For instance, documents in categories 1, 2 and 3 refer to the contractual relationship between FHL and Diploma. Categories 4 and 5 refer to documents relating to the contract between FHL and ARUP Pty Ltd (Australia). Categories 7 and 8 deal with the contractual relationship between FHL and Blueforce. This pattern is repeated with different service providers. In each case what GHD is seeking is first, documents which relate to the agreement between FHL and the particular entity and second, documents which were generated as a consequence of the entity undertaking certain work for FHL. Category 6 stands apart - that deals with documents relating to inspection by Government agencies or fire services. But, otherwise the position is relatively straightforward.
GHD's complaints appear to fall into three categories. The first relates to the building contract between FHL and Diploma and the services carried out by Diploma pursuant to that contract. GHD says FHL has not produced a copy of the actual building contract with Diploma nor the documents relating to the scope of work agreed. FHL has discovered a document headed 'Acceptance of Tender Oxford Youth Foyer - Tender No FHL‑2011‑12'. GHD says that is not a final agreement nor is it the whole agreement because it refers to terms and clauses located in other agreements. As an example, FHL says the 'general conditions of contract' and relevant drawings as well as variations have not been discovered.
In response, FHL points out GHD has admitted the execution of the contract between FHL and Diploma. Furthermore GHD has admitted the contract incorporated the general conditions. In essence FHL says that it has discovered all of the relevant documents. It refers to an affidavit of Thomas Henry Jacobs sworn 18 October 2019 filed in opposition to the application. Essentially Mr Jacobs makes the point that what has been discovered are the documents which are available. There may be more documents which deal with the contractual relationship between FHL and Diploma but they are not related to this dispute.
One of the difficulties with the way in which agreement was reached about discovery is that there is no specification of the basis upon which discovery is to be given. It is not clear whether the documents to be discovered are those directly relevant to a matter in issue or related to a matter in issue. Depending upon which of these criteria are applied the scope of discovery varies. On the one hand there is the rather narrow category of documents which are directly relevant; on the other hand there is the extremely broad category of those documents which relate to a matter in issue. The sensible approach in this case is to adopt the middle ground - that is to say what the parties have to discover are documents which are relevant to a matter in issue.
It is also important to bear in mind that an affidavit of discovery is on its face conclusive. Further discovery cannot be sought simply on the basis of an argumentative affidavit.[4] The affidavit of Mr Jacobs who is a solicitor acting for FHL makes it plain he understands the obligations he has in advising FHL on discovery. Given he has sworn all relevant documents have been discovered, there is no basis on which a further order for discovery could be made.
[4] See Mulley & Marney v Manifold (1959) 103 CLR 341 [345].
The second category of documents relates to the agreements with various parties who undertook remedial works. By way of example, in par 23 of his written submissions counsel put the position this way:
GHD submits that FHL must produce copies of its agreements with JMG Building Surveyors relating to the scope of services agreed which caused JMG to prepare that report referred to in schedule B of FHL's pleading including copies of those instructions by FHL to JMG regarding the FHL's request for that report.[5]
[5] First defendant's outline of submissions filed 23 September 2019.
This category also refers to invoices which were rendered by various entities to FHL allegedly in relation to rectification work undertaken by those companies.
In response, FHL says that all documents within their possession and custody which fall within the agreed categories have been discovered. Mr Jacobs deals with this issue in pars 9 through to 27 of his affidavit.[6] Furthermore Mr Jacobs says that inquiries have been made from third parties and no response has yet been received. Mr Jacobs undertakes that if further documents are produced to FHL they will be discovered. In her written submissions counsel for FHL pointed out that the obligation on FHL is to discover documents which show the costs of services provided. FHL must establish those costs in the usual way. But, there is no positive case put by GHD in its defence that the alleged rectification work went beyond what was necessary to rectify the defects and is for that reason not claimable by FHL against GHD. While there is some merit in that submission it does rather draw a fine line between what FHL has to prove and the right of GHD to query invoices. Nonetheless, what FHL have to do is produce the documents which are referred to in the schedule. Based upon Mr Jacobs' affidavit that is what it has done. Clearly Mr Jacobs is cognisant of FHL's ongoing discovery obligations. He is also no doubt cognisant of the need to produce invoices if any particular claim is to be maintained. That being so, I am satisfied there is no basis for any further order for discovery.
[6] Affidavit of Thomas Henry Jacobs sworn 18 October 2019.

The final category are those documents which counsel for GHD in his written submissions refers to as 'documents referred to in discovered documents'.[7] In part what GHD is seeking seems to be Australian standard documents. There is no need for those to be discovered. Furthermore as was pointed out by counsel for FHL in her written submissions there has not been an order for general discovery. The mere fact that a document is referred to in another document does not make it discoverable in these proceedings. Once again, Mr Jacobs is aware of the need to produce all relevant documents and there is nothing to suggest that has either not been done or will not be done in the ordinary course.
[7] First defendant's written submissions filed 23 September 2019 at pars 29 ‑ 43.
On balance, I am not satisfied any further order for discovery is warranted. GHD's application will be dismissed.
Turning then to the plaintiff's application attached to the chamber summons is 'Schedule A'. This schedule sets out the documents the plaintiff says should be discovered but which have not been discovered. That schedule is in the following terms:
In this Schedule A the following defined terms are used:
'Design Team' means the team involved in the design of the Foyer Building.
'Documents' means documents of any description whatever related to any matter in question in this action, including any internal documentation circulated between the first defendant's personnel.
'Foyer Building' means the Youth 'Foyer' Hostel in Leederville, Western Australia.
'Project' means the development and delivery of the Foyer Building.
'Project Control Group' means the project control group which generally monitored the Project, including monitoring matters which as the Project progress, status, performance, budget, cost and schedule.
Documents dated and/or created between 2010 and 2016 being:
1.Documents which evidence any supervision by the first defendant (and its officers, employees or agents) (the first defendant) of the second defendant.
2.Documents which evidence any supervision by the first defendant of Mr Blenkhorn (as the Superintendent's Representative).
3.Any monthly progress reports for the Project.
4.Documents which evidence management and/or monitoring by the first defendant of the Project progress, status, performance, budget, cost and schedule including providing updates internally within the first defendant or to other person, including the plaintiff, second defendant and Mr Blenkhorn.
5.Any minutes or notes of meetings of the Project Control Group.
6.Any minutes or notes of meetings of the Design Team.
7.Documents which evidence any inspections carried out, or observed, by the first defendant, including in relation to practical completion, the practical completion report and the practical completion certificate.
8.Documents which evidence the first defendant attending on site, and its observations or inspections, during:
(a)hold points; and
(b)testing and commissioning.
9.Documents which evidence any technical review and/or onsite support or supervision by the first defendant of the installation of the window/glazing system in the Foyer Building.
10.Documents which evidence any technical review and/or onsite support or supervision by the first defendant of the installation of the Alucobond cladding on the southern wall of the Foyer Building.
The striking thing about all of the documents in all of these categories is that they are obviously discoverable. By way of example, category 6 refers to records of meetings of the design team. FHL's application is supported by an affidavit of Mr Jacobs sworn 16 September 2019. Attachments THJ48 through to THJ55 are minutes of meetings of the design team which took place between 10 August 2010 and 14 December 2010. The minutes appear on a GHD letterhead and it would appear they were taken by a representative of GHD. Yet according to Mr Jacobs none of these minutes have been discovered: See pars 36 – 38 of his affidavit.[8] It is very difficult to see how it could be possible for GHD not to have copies of the relevant reports and how they could fail to discover those reports.
[8] Affidavit of Thomas Henry Jacobs sworn 18 October 2019.
The same reasoning applies to all of the other categories.
That said, some categories are more speculative than others. For instance, category 3 relates to monthly progress reports. But even then GHD pleads that the preparation and circulation of electronic copies of monthly progress reports was one of the services it provided. Some of these reports have been provided; it is difficult to see how reports for months which have not yet been discovered do not exist.
On balance, I am satisfied orders as sought by FHL ought be made. Because the categories are so broad it may be that there are in fact no documents that fit within a particular category. If that is the case then an affidavit to that effect ought be filed. In other words, I anticipate GHD filing two affidavits in response to this order. First, a supplementary affidavit of discovery which deals with documents in its possession which have not yet been discovered. Second, if no documents are discovered in a particular category an affidavit stating that after all necessary enquiries no documents in that particular category are available.
On publication of these reasons the parties should confer to agree a minute of orders. GHD should pay the costs on both summonses with there being only one set of costs as both matters were argued at the same time.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CB
Associate to Master Sanderson

6 FEBRUARY 2020