JETCUT Offshore Technology Pty Ltd v Coflexip Stena Offshore Asia Pacific Pty Ltd - [2003] WASC 28

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: JETCUT OFFSHORE TECHNOLOGY PTY LTD -v- COFLEXIP STENA OFFSHORE ASIA PACIFIC PTY LTD [2003] WASC 28

CORAM: MASTER SANDERSON

HEARD: 7 FEBRUARY 2003

DELIVERED : 6 MARCH 2003

FILE NO/S: CIV 1696 of 2002

BETWEEN: JETCUT OFFSHORE TECHNOLOGY PTY LTD (ABN 36 091 041 486)
Plaintiff
AND
COFLEXIP STENA OFFSHORE ASIA PACIFIC PTY LTD (ABN 43 062 878 719)
Defendant

Catchwords:

Practice and procedure - Application for further and better answers to request for further and better particulars - Turns on its own facts

Legislation:

Nil

Result:

Application refused

Category: B

Representation:

Counsel:

Plaintiff: Mr R M Wilenski
Defendant: Mr D R Goodman

Solicitors:

Plaintiff: Tottle Christensen
Defendant: Freehills

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

Nil

Case(s) also cited:

John Holland Construction and Engineering Pty Ltd v Kvaerner R J Brown Pty Ltd (1997) 13 BCL 262
Murchison Zinc Co Pty Ltd v Thiess Contractors Pty Ltd [2000] WASCA 167
Thiess Contractors Pty Ltd v Murchison Zinc Co Pty Ltd [2000] WASC 71

MASTER SANDERSON: This is the plaintiff's summons pursuant to which it seeks to have the defendant provide further and better answers to the plaintiff's request for particulars. In the chamber summons reference is made to numerous particulars. However, the particulars fall into a limited number of categories and it is possible to deal with them on that basis. Prior to doing that it is necessary to say something about the nature of the dispute between the parties.
The plaintiff relies on an amended statement of claim filed 24 July 2002. The statement of claim pleads that the plaintiff, at all material times, carried on the business of providing underwater abrasive cutting services. The defendant is a contractor who provides offshore sub‑sea services, including, relevantly in this dispute, the removal of abandoned wellheads protruding above the sea bed. Although it is not mentioned in the statement of claim, counsel for the plaintiff, during the course of his submission, explained the relationship between the plaintiff and the defendant in this way. From time to time oil exploration companies drill sub‑sea wells. If, for one reason or another, a well once drilled is abandoned, what remains on the sea floor is a wellhead. The wellhead protrudes some distance above the sea floor and can provide a hazard - for instance, it may snag fishing nets. Accordingly, the wellhead must be cut off at the level of the sea bed. The defendant undertakes such services on behalf of the company who drill the well. Historically the wellheads were removed by using explosives. The plaintiff provides a service which involves cutting off the wellhead using certain rather sophisticated technology. It is common ground between the parties that the defendant was contracted to remove eight wellheads and subcontracted the work to the plaintiff, who was to remove the wellheads using its technology. The subcontract itself is pleaded in par 5 and 6 of the statement of claim. There is a dispute between the parties as to the terms of the subcontract, but that is not a matter which is presently of concern. Paragraphs 7 through to 9 of the statement of claim plead the commencement of the work by the plaintiff pursuant to the terms of the subcontract. The rest of the statement of claim pleads that the plaintiff either has not been paid for work which was undertaken pursuant to the contract, or other entitlements said to arise under the contract. In total, the plaintiff's claim is for just under $650,000.
The defence is to be found in a document entitled Minute of Proposed Amended Defence and Counterclaim filed 30 October 2002. The first seven paragraphs of the defence deal with the contract issue which, as I have said, is presently not of concern. By par 8 commencement of the work is admitted. Thereafter, the defendant says, save with respect to one wellhead which was removed from the contract, the plaintiff simply failed to sever the wellheads. As a consequence, the defendant says that it suffered loss and damage. That gives rise to a counterclaim for damages for breach of contract and in the alternative, a claim under the Trade Practices Act. It is important to note, however, that the plea of the defendant is that the plaintiff failed to discharge its obligations under the contract by severing the wellheads.
Turning then to the request for particulars, the first request the subject of the application is question 4. It relates to par 10(c)(5) of the defence. That paragraph relates to a wellhead entitled Madeleine 1. Paragraph 10(c)(5) is in the following terms:
"In any event, the Plaintiff's cutting system was unable to sever the Madeleine 1 wellhead".
The plaintiff's request in relation to that paragraph is:
"In relation to paragraph 10(c)(5) state each fact or circumstance relied on for the contention that the Plaintiff's cutting system was unable to sever the Madeleine 1 wellhead."
The answer given to that request is:
"(iii)the plaintiff, even when it apparently had the appropriate cutting nozzle, was unsuccessful in all its attempts to sever any multiple string wellheads.
(iv)The matters pleaded in paragraphs 9 and 10(a) and (b) of the defence."
(The answer tendered by the defendant is to be found in a document titled "Defendant's Proposed Amended Answers to Plaintiff's Request for Further and Better Particulars of Defence and Counterclaim dated 30 October 2002". The answer to question 4 has been amended by deleting what were the first two paragraphs and leaving only par (iii) and (iv). The numbering of the paragraphs has not been amended to pick up the deletion. The answer that I have quoted above is the full answer to the request as the answers presently stand.)
Paragraph 9 of the defence deals with three wells - Lewis 1A, Lewis 1 and Rosemary. How these paragraphs have any relevance to the Madeleine 1 wellhead is unclear. The same is true of par 10(a) and 10(b). Those paragraphs refer respectively to the Nelson Rocks 1 wellhead and the Wamac 1 and Wamac 2 wellheads. None of this relates to the Madeleine 1 wellhead. It may be that the defendant is referring to those wellheads only to show that it alleges the plaintiff failed to sever the Madeleine 1 wellhead in the same way as it had failed to sever the other wellheads. If that is the case, the answer is badly phrased. It requires some amendment.
Reference to this question and answer does throw up the essential nature of the dispute between the parties. As I have indicated above, the defendant's position is that the plaintiff did not sever the wellheads as it was contractually required to do. The issue between the parties then is quite simple. Did the plaintiff or did it not sever the wellheads? If it did, then certain consequences flow in its favour. If it did not, then certain consequences flow in the defendant's favour. If the plaintiff failed to sever the wellheads then it really matters not why they were not severed. In other words, the technical reasons for the failure are not an issue between the parties. To that extent the claim is not one which might be described as an "engineering dispute". It is a contract dispute. The defendant, by its pleading, is not putting in dispute the plaintiff's technical expertise or alleging that there was some design fault with the plaintiff's equipment. All it is alleging is that the plaintiff did not do the job it contracted to do. Why it was unable to do the job is of no real interest in the context of this dispute. It is a simple issue - did the plaintiff sever the wellheads or did it not? That is all that is relevant. To that extent it would seem to me that the answer given in answer 4(iii) is sufficient. Answer 4(iv) ought be struck out.
The next complaint relates to the answer to question 6(b). That question in turn relates to par 16(b) of the defence. By par 16 of the defence the defendant denies par 16 of the statement of claim and says that:
"(b)the plaintiff had also failed to provide the necessary level of spare parts to its cutting system or cutting nozzles capable of cutting both one and four string wellheads".
(I have some doubt as to whether par 16 of the defence responds directly to par 16 of the statement of claim. Each paragraph seeks to attack a slightly different issue. However, this was not a matter which was taken up by counsel during the course of submissions and for present purposes it can be put to one side).
By question 6(a) the plaintiff asks what is the "necessary level" of spare parts which were required. An answer is provided to this question which refers both to the subcontract agreement and to a requirement - presumably an implied term of the contract - that the plaintiff would have sufficient spare parts to ensure the cutting system was able to adequately perform its function. Question 6(b) is then in the following terms:
"identify all such spare parts and how many of each such spare parts were required to meet the requirement for a 'necessary level';"
The defendant responds by referring the plaintiff to the answer given to question 6(a). In my view the plea in par 16(b) of the defence is unnecessary and has led to a dispute about a false issue. As I have said, the defendant says that the plaintiff could not cut the wellheads and could not therefore discharge its obligations under the subcontract. Paragraph 16(b) of the defence purports to offer an explanation in part as to why the plaintiff was unable to perform its contractual obligations. But the defendant did not need to offer such an explanation. It simply needed to plead that the plaintiff could not perform the contract. Where a party seeks to set up a positive case it must plead the material facts to support its position. If, for instance, it was the defendant's case that the plaintiff's cutting system, although it severed the wellheads, it left a jagged protrusion on the ocean bed which was unsatisfactory, then it would have to plead material facts supporting that proposition. It would not be enough to plead that the plaintiff did not carry out the work in accord with the terms of the contract. But here the defendant sets up no positive case. It simply says the work was not done. It need not, and indeed it should not, attempt to explain why the plaintiff could not perform the contract.
In relation to this question it would seem to me that the best course is for the defendant to amend par 16 of its defence. However, if par 16 is to remain in its present form then in my view question 6(b) has been answered to the extent necessary. It is a false issue and need not be taken further.
The plaintiff complains about the answers to questions 7(a), 8(a), 8(b), 10(a) and 10(b). All of these questions relate to the defence to the plaintiff's claim and the comments I have made in relation to questions 4 and 6(b) apply equally to each of these questions. Accordingly I would not be prepared to order further and better answers to these questions.
Question 12(a) relates to par 26(c) of the defence. Unlike earlier questions I have dealt with, which refer to the defence to the plaintiff's claim, this question relates to the defendant's counterclaim. Paragraph 26 of the defence pleads that the plaintiff was in breach of the subcontract and failed to perform certain works. Paragraph 26(c) and (d) are in the following terms:
"(c) with all necessary personnel and equipment;
(d)without defects or deficiencies in the cutting system.
Particulars
1.The Defendant repeats subparagraph 16(a) to (d) of the Defence."
I have already dealt with the inadequacies as I see it of par 16 of the defence. What it adds to the plea in par 26 of the defence is unclear. Submissions made by counsel for the defendant suggest that what is intended to be conveyed by the reference to par 16 is, once again, the simple fact of the plaintiff's failure to sever the wellheads.
I find it difficult to see why par 16 is referred in par 26. After pleading the failure to perform the works, the defendant goes on to plead why the plaintiff failed to perform the works. The material fact, on the defendant's case, is the failure to sever the wellheads. It is hardly surprising, given the nature of the plea, that the plaintiff should have sought particulars of the defects or deficiencies in the cutting system pleaded in par 16(d). But properly viewed, particulars of the defects or deficiencies are unnecessary. A false issue is raised. In my view amendment to the counterclaim would be appropriate. Failing that, however, I am not satisfied that any further particulars are required.
Complaint is made by the plaintiff with respect to the answers to questions 13(a), 13(b), 13(c), 14(a), 14(b), 14(c), 15(a), 15(c), 16(a), 16(b), 16(c), 16(e), 17, 19(a), 19(b), 19(c), 20 and 21. In each case the position is the same as with questions 12(a) and 12(b). I would not order further and better answers to these questions.
Questions 22(a) to (f) relate to par 37 which in part pleads special damages. Some confusion has arisen as a consequence of par 37(2) and (3) being shown as amendments to the defence rather than deletions from the defence. Once those two subparagraphs are removed, questions 22(b) and 22(c) fall away. Furthermore, in relation to question 22(a)(v), the defendant says in its answer that it declines to answer that question. During his oral submissions counsel for the defendant conceded, quite properly, that an answer to that question should be provided. The way in which the answer has been provided to question 22(a) is somewhat confusing. However, I am satisfied that the answer is, in all the circumstances, sufficient. I would not be prepared to make any order for a further and better answer. In relation to par 22(d), (e) and (f), I am satisfied that the answer provided in each case is satisfactory. The questions put deal with the issue of causation - how did the conduct complained of result in the losses allegedly sustained by the defendant. In my view this is a case where the position is reasonably clear. It is alleged by the defendant that the failure of the plaintiff to comply with the terms of the subcontract have resulted in loss and damage, including a refusal of the head contractor to pay the defendant. In all the circumstances, I am satisfied that no further particulars need be provided.
I will hear the parties as to the precise form of orders and as to costs.