J B Building Services P/L v Multiplex Constructions P/L

IN THE SUPREME COURT
QUEENSLAND No. 5809 of 1997
Before Wilson J
[J B Building Services P/L v Multiplex Constructions P/L & Ors]
BETWEEN: J.B. BUILDING SERVICES PTY LTD (IN LIQUIDATION)
ACN 070 681 006
Plaintiff

AND: MULTIPLEX CONSTRUCTIONS PTY LTD
ACN 008 687 063
First Defendant

AND: PERPETUAL TRUSTEES VICTORIA LIMITED
ACN 004 027 258
Second Defendant

REASONS FOR JUDGMENT - WILSON J.
Delivered the 2nd day of August 1999

There are two applications -
(a)one by the plaintiff for disclosure of documents or classes of documents referred to in a letter dated 9 March 1999 from the plaintiff’s solicitors to the first defendant’s solicitors and for consequential orders; and
(b)the other by the first defendant to strike out paragraphs 23 and 24 of the statement of claim.
The first defendant was the principal contractor in the construction of the Cairns Central Shopping Centre. The plaintiff was the subcontractor responsible for the fixing of mesh and reinforcing steel. A schedule of rates subcontract was entered into between the first defendant and the plaintiff dated 6 August 1996. Work proceeded pursuant to the subcontract, but disputes arose. On 11 November 1996 a compromise was reached. The plaintiff continued on the site, but further disputes arose and the plaintiff has not been on site since 12 February 1997. There is dispute concerning the circumstances in which the plaintiff left the site.
So far as relevant the plaintiff’s claims against the first defendant are for:-
(a)$179,592.59 moneys owing under the contract pursuant to progress claims 30, 31, 32, 33 and 35;
(b)further, $20,397 retention moneys wrongfully withheld;
(c)alternatively, $199,989.59 on a quantum meruit;
(d)further, damages for wrongful repudiation.
The first defendant has a counterclaim against the plaintiff for damages for breach of contract and for wrongful repudiation as follows:-
Delay   $2,000.00
Rectification  $45,340.00
Clean up costs                 $1,202.00
Costs to complete the work     $505,484.00
$554,026.00
The plaintiff’s application was made pursuant to O 35 r 14 of the Supreme Court Rules 1900. In all relevant respects the provisions of the Uniform Civil Procedure Rules relating to disclosure are in similar terms to O 35, and so it is not necessary to consider whether the repeal of the Supreme Court Rules before the determination of the application has any effect on its outcome.
The extent of a party’s duty to disclose documents was set out in O 35 r 4 as follows:
“ 4(1)A party to an action has a duty to disclose to each other party each document that -
(a)is in the possession or under the control of the first party; and
(b)is directly relevant to an allegation in issue in the cause.”
Order 35 rule 14(4)(a) allowed the court to order the disclosure of documents beyond those directly relevant to the issues in the cause if there were special circumstances and the interests of justice required it.
After the first defendant gave disclosure, there was correspondence about its alleged inadequacy. I will deal with each numbered paragraph in the plaintiff’s solicitors’ letter of 9 March 1999 in due course. However, at this stage some general observations can be made.
In its statement of claim delivered on 27 November 1997 the plaintiff pleaded its unliquidated damages claim as follows:-
“23.(a) In addition to its claim for $199,989.59 pleaded above, the Plaintiff claims damages from the First Defendant by reason of its wrongful repudiation of the subcontract; and
(b)repeats and relies in respect of such damages claim on the matters hereinbefore pleaded.
24.(a) The Plaintiff has suffered loss and damage by reason of the said wrongful repudiation of the subcontract;
(b)the Plaintiff is presently unable to particularise its claim for such damages;
(c)particulars of such claim will be provided to the First Defendant upon completion of quantity surveyor’s reports and in any event prior to the trial of this action.”
The plaintiff has maintained that it is unable to particularize this claim before receiving a report from quantity surveyors. In turn the quantity surveyors say they cannot complete their report without access to the documents disclosure of which is sought.
The plaintiff is a company in liquidation. The liquidator says that he does not have documents available to him which would allow the claim to be particularized. The plaintiff’s counsel argued that these are special circumstances and that the interests of justice (especially the interests of creditors) require the disclosure at this time. The first defendant’s primary submission is that the documents are not relevant to matters raised on the pleadings and that the plaintiff has embarked on a fishing expedition. Alternatively it says that the liquidator has other means available to him to obtain information and that as he has not shown that he has exhausted such other means, an order ought not to be made in his favour.
Mr Park, a manager in the employ of the liquidator’s firm, swore an affidavit on 11 September 1997 (more than 2 months before the statement of claim was delivered) in which he said:-
“7.The Plaintiff started the work for the First Defendant pursuant to the subcontract. A number of problems then arose between the Plaintiff and the First Defendant in the few months leading up to November 1996. The Plaintiff for its part was alleging amongst other things that:-
(a)the First Defendant (which was responsible for the supply of steel to the site for fixing by the Plaintiff) was dumping steel on the site in tangled piles and then further compounding the problems that arose from that by bulldozing the piles of steel into yet more piles around the site;
(b)steel was supplied to the site long before it was required which resulted in identification tags affixed to it often being unreadable or missing by the time the steel came to be used by the Plaintiff;
(c)the First Defendant did not supply gridlines (as it was obliged to do) so that the Plaintiff could fix steel in the correct positions on the site and nor did it supply a theodolite to the Plaintiff to assist in the marking out of grid lines;
(d)there was an inadequate supply of craneage by the First Defendant (this was the First Defendant’s responsibility);
(e)other subcontractors were delayed in completing their works. It was necessary for them to complete those works prior to the Plaintiff beginning parts of its work. As a result the Plaintiff itself was delayed. In various instances, when those other contractors had completed their work it was found to be faulty and which resulted in rectification work having to be done which further delayed the Plaintiff;
(f)there were numerous design changes and poor site co-ordination by the First Defendant which resulted in further delays for the Plaintiff in carrying out its work;
(g)the Plaintiff was required by the First Defendant’s site supervisors to have its men work in various areas on the site that were not fully completed and ready for the Plaintiff to begin its work;
(h)the First Defendant was delaying payment to the Plaintiff of various of the progress payment claims that it had made on the First Defendant.”
Further, Mr Trounce, who was the plaintiff’s accountant, swore an affidavit on 15 December 1998 (more than 12 months after the statement of claim was delivered) in which he said:
“15.According to the minutes of tender/pre-subcontract meeting document which forms part of the subcontract (in this regard I refer to exhibit “A” to the Affidavit of John Park filed herein on or about 11th September 1997), Multiplex was to provide datum points and main gridlines for each portion of the works and at each main level. I specifically refer to item number 4 under the heading “Set-out” on the second page of that minutes document.
16.I also again crave leave to refer to the Plaintiff’s Statement of Claim and in particular paragraph 15(c) thereof.”
Mr Grosvenor, a director of the plaintiff, swore an affidavit on 16 December 1998 in which he discussed the need for post tensioning devices. The drawings used for tender purposes envisaged the use of “antiburst cages”, but Mr Grosvenor said there had been an agreement with the first defendant that it would provide “spirals” instead. Spirals could be bought ready made whereas antiburst cages had to be constructed on site.
The matters dealt with in these affidavits have not been referred to in the statement of claim except for the failure to provide datum points and gridlines (paragraph 15(c) of the pleading.) It emerged in argument before me that the plaintiff alleges that the failure to provide datum points and gridlines and the failure to supply spirals are the basis for a claim for damages for delay. Further, the plaintiff wishes to claim loss of profits it would have made had it been allowed to complete the project.
The real problem flows from the plaintiff’s failure to particularize its claim for unliquidated damages at least to the extent that some of its witnesses have been able to do so in affidavits. I am not prepared to strike out paragraphs 23 and 24 of the statement of claim, but consider that the plaintiff should supply such particulars at this stage. Of course, that would then broaden the scope of the first defendant’s disclosure obligation. In a sense the plaintiff’s application for further disclosure has been premature. However, I think that special circumstances have been made out and that it is in the interests of justice that some finality be brought to questions relating to the pleadings and disclosure.
Accordingly I shall order that the particulars be delivered within 14 days and that further disclosure (to the extent I shall discuss below) be made within a further 14 days. I will grant liberty to apply, as I am mindful that the particulars may diverge from those anticipated.
The first category of documents sought consists of all the programming schedules and programming reviews from the start of the job up to the time the plaintiff left the site and from then until the completion of the work by substitute steel fixers. The plaintiff alleges in para. 6(g) of the statement of claim:
“(g)in consideration of the parties entering into and agreeing to be bound by terms of the subcontract variation, the Plaintiff and the First Defendant mutually discharged and released each other from all claims arising out of or in connection with the Subcontract and any work performed by the Plaintiff on the site existing as at 12 November 1996 or which had or may have arisen prior to 12 November 1996.”
Accordingly I cannot accept that documents relating to the period up to 12 November 1996 are directly relevant to matters presently raised on the pleadings or even to the claim for unliquidated damages insofar as its content can be divined from the affidavits. Because of the proposed delay claims and the existing counterclaim (both for delay and for costs of completing the work far in excess of what the first defendant would have had to pay the plaintiff), I am prepared to order the disclosure of such documents in relation to the periods 12 November 1996 - 12 February 1997 and 12 February 1997 to the completion of the work by the substitute steel fixers. Such documents should be disclosed whether they exist in hard copy or in electronic form.
The second category of documents consists of subcontract status cards from the commencement of the subcontract to October 1996. I am not prepared to order the production of such cards as they are not directly relevant to an issue in the proceedings.
Thirdly, the plaintiff seeks disclosure of the entirety of the first defendant’s site diary. I am prepared to order its production only insofar as it relates to the periods 12 November 1996 - 12 February 1997 and 12 February 1997 to the completion of the work by the substitute steel fixers and only insofar as it relates to matters presently pleaded in the statement of claim or the subject of the unliquidated damages claim as discussed above or presently pleaded in the counterclaim.
The fourth category relates to variation summaries referring to the plaintiff. I am prepared to order the production of these for the period 12 November 1996 - 12 February 1997.
The fifth category relates to a report prepared by Stephen Soh & Associates Pty Ltd, quantity surveyors, dated 28 August 1997. It was a report commissioned by the first defendant as to the measurement of reinforcement quantities used based on a set of “as construct” drawings. The plaintiff seeks disclosure of the material briefed to Mr Soh and his own file documents that he prepared in and about undertaking his report. The first defendant says that the latter are not in its possession or power, and in these circumstances I will not order disclosure of them. So far as the documents briefed to Mr Soh are concerned, the first defendant says that “all of the steel schedules have been disclosed”. I am not sure what this means. The schedules to Mr Soh’s report list the documents on which he relied, and in particular, the third of these contains a schedule of reinforcement documents as supplied by BHP (the steel supplier). I am not satisfied that there are documents directly relevant to issues raised on the pleadings or in the proposed claim for unliquidated damages which are in the possession or control of the first defendant and which have not already been disclosed.
The sixth category relates to correspondence between the first defendant and certain project programmers. I am not satisfied that such correspondence is directly relevant to any of the issues discussed, and so will not order disclosure of it.
Categories 7, 8, 9 and 10 relate to quality assurance records -
7.quality assurance records between October 1996 and 12 February 1997;
8.a complete list of the non conforming records;
9.quality assurance compliance audits;
10.weekly quality assurance inspection reports.
The plaintiff seems to be saying that they would contain details of what work was or was not done by it at any given time, but I am not satisfied that these are directly relevant to any of the issues as discussed and so refuse to order disclosure.
The eleventh category is the site manning register. The plaintiff contends that this would show the level of its personnel on the site at any time and thus the resources provided by it and that this is relevant to the delay/compression claims. I am not satisfied that this is directly relevant to such claims and so refuse to order disclosure.
The twelfth category consists of the first defendant’s inspection check lists. I am not satisfied that these are directly relevant to any of the issues discussed, and so refuse to order disclosure.
In the thirteenth category the plaintiff sought disclosure of the subcontract etc. between the first defendant and the replacement steel fixer. The first defendant responded that there was no written subcontract. However, it appears from an affidavit of the plaintiff’s solicitor sworn on 30 April 1999 that a further box of documents has been disclosed to the plaintiff which includes unsigned subcontract forms between the first defendant and the replacement steel fixer, some correspondence between them and various documents to support the replacement subcontractor’s claims. According to the first defendant’s solicitor all the documents relating to the work undertaken by the replacement subcontractor have now been disclosed. In the circumstances I will not order further disclosure in this category.
Categories 14 and 15 relate to structural drawings and the structural drawings register. The plaintiff contends that there was a long chain of re-issues of drawings and that all of the various issues of the structural drawings from the commencement of the project right up to the completion of the job by the substitute steel fixers should be disclosed so that the quantity surveyors can track exactly what was done at any particular stage by both the plaintiff and the substitute contractors. I do not accept that such documents are directly relevant to any issues as discussed and so refuse to order disclosure.
The final category relates to correspondence between the first defendant and its project engineers. There are said to be gaps in the correspondence. These have not been particularized in any way and the first defendant has replied that all relevant correspondence has been disclosed. In the circumstances I am not satisfied that there has been non-disclosure of correspondence directly relevant to any of the issues as discussed.
I will hear counsel on costs, including the costs reserved on 12 April 1999.
IN THE SUPREME COURT
QUEENSLAND  No. 5809 of 1997
Before Wilson J
[J B Building Services P/L v Multiplex Constructions P/L & Ors]
BETWEEN:   J.B. BUILDING SERVICES PTY LTD (IN LIQUIDATION)
ACN 070 681 006
Plaintiff
AND:             MULTIPLEX CONSTRUCTIONS PTY LTD
ACN 0008 687 063
First Defendant
AND:             PERPETUAL TRUSTEES VICTORIA LIMITED
ACN 004 027 258
Second Defendant
REASONS FOR JUDGMENT - WILSON J.
Delivered the 2nd day of August 1999
CATCHWORDS:     PROCEDURE - DISCOVERY AND INTERROGATORIES - PRODUCTION AND INSPECTION - GENERALLY - OF WHAT PARTICULAR DOCUMENTS - application for disclosure of documents - disclosure of documents beyond those directly relevant - whether there are special circumstances and the interests of justice require it - plaintiff unable to particularize claim without access to documents.
PROCEDURE - SUPREME COURT PROCEDURE - QUEENSLAND - PRACTICE UNDER RULES OF COURT - PLEADING - STATEMENT OF CLAIM - application to strike out paragraphs of statement of claim - unliquidated damages claim - plaintiff to deliver particulars.
Supreme Court Rules 1900 O 35 rr 4,14
Uniform Civil Procedure Rules rr 211, 223
Counsel:  Mr T Matthews for the plaintiff
Mr R A Perry for the first defendant
Solicitors:  Bennett & Philp for the plaintiff
Clayton Utz for the first defendant
Hearing Date:              4 May 1999

[1999] QSC 179

2 August 1999