John Holland Pty Ltd v The Minister for Works

[2021] WASC 312

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   JOHN HOLLAND PTY LTD -v- THE MINISTER FOR WORKS [2021] WASC 312

CORAM:   HILL J

HEARD:   28 & 29 JULY 2021

DELIVERED          :   14 SEPTEMBER 2021

FILE NO/S:   CIV 3025 of 2019

BETWEEN:   JOHN HOLLAND PTY LTD

Plaintiff

AND

THE MINISTER FOR WORKS

Defendant

(BY ORIGINAL ACTION)

THE MINISTER FOR WORKS

Plaintiff by Counterclaim

AND

JOHN HOLLAND PTY LTD

First Defendant by Counterclaim

CIMIC GROUP LTD

Second Defendant by Counterclaim

JOHN HOLLAND HOLDINGS PTY LTD

Third Party

(BY COUNTERCLAIM)

Catchwords:

Practice and procedure - Pleadings - Application for further and better particulars of statement of claim - Proposal for common data set - Appropriate orders to be made - Turns on own facts

Practice and procedure - Pleadings - Application for further and better particulars of defence - Whether particulars sought of defence contended by defendant - Whether particulars required or whether matter will be addressed by other case management orders - Appropriate orders to be made - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA) O 20 r 8, 13, 14, 19

Result:

Application by John Holland allowed in part
Application by State allowed in part
Applications otherwise dismissed

Category:    B

Representation:

Original Action

Counsel:

Plaintiff	:	M Dempsey SC, D Miller SC, W C J Zappia & T J Porter
Defendant	:	M G Roberts QC, J Taylor, E M Heenan, K A T Pederson

Solicitors:

Plaintiff	:	HWL Ebsworth Lawyers (Perth)
Defendant	:	Herbert Smith Freehills

Counterclaim

Counsel:

Plaintiff by Counterclaim	:	M G Roberts QC, J Taylor SC, E M Heenan, K A T Pederson
First Defendant by Counterclaim	:	M Dempsey SC, D Miller SC, W C J Zappia & T J Porter
Second Defendant by Counterclaim	:	No appearance
Third Party	:	M Dempsey SC, D Miller SC, W C J Zappia & Mr T J Porter

Solicitors:

Plaintiff by Counterclaim	:	Herbert Smith Freehills
First Defendant by Counterclaim	:	HWL Ebsworth Lawyers (Perth)
Second Defendant by Counterclaim	:	DLA Piper Australia - Perth
Third Party	:	HWL Ebsworth Lawyers (Perth)

Cases referred to in decision:

Alcoa of Australia Ltd v Apache Energy Ltd [No 3] [2013] WASC 334

Attorney General of Western Australia v President of the Legislative Council of Western Australia [2020] WASC 399

Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82

Black Box Control Pty Ltd v Terravision Pty Ltd [2016] WASCA 219

Civil Mining & Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd [2017] QSC 085

CMA Assets Pty Ltd v John Holland Pty Ltd [No 6] [2015] WASC 217

Darbyshire v Leigh [1896] 1 QB 554

Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658

Green v Wilden Pty Ltd [2005] WASC 83

National Australia Bank Ltd v Rowe [2018] WASC 330

Pinson v Lloyds and National Provincial Foreign Bank Ltd [1941] 2 KB 72

Rowe v National Australia Bank Ltd [2019] WASCA 140; (2019) 56 WAR 1

Sims v Wran [1984] 1 NSWLR 317

Sino Iron Pty Ltd v Mineralogy [2019] WASCA 80; (2019) 55 WAR 89

Turner v Bulletin Newspaper Co Pty Ltd (1974) 131 CLR 69

Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 6] [2016] WASC 218

HILL J:

1. On 5 July 2011, John Holland Pty Ltd (John Holland) entered into a contract with the Minister for Works (State) to manage the design and delivery of a new children's hospital to replace the aging Princess Margaret Hospital (Original Contract).  Ultimately, the new hospital was named Perth Children's Hospital (PCH).  In December 2012, the parties entered into an amended contract under which John Holland agreed to design and construct PCH for a fixed lump sum payment (Contract).  Under the Contract, Practical Completion was to occur by 30 June 2015.  In fact, Practical Completion did not occur until April 2017.  PCH opened in stages commencing from May 2018 and was fully operational in June 2018. 

2. In November 2019, John Holland commenced these proceedings against the State.  John Holland seeks a series of declarations, including as to various extensions of time it says it is entitled to under the Contract and amounts it says are payable by the State.  John Holland contends that the State is required to pay more than $180 million to it under the Contract.

3. The State denies it is liable to John Holland for this amount or any amount at all and has brought a counterclaim seeking more than $17 million for liquidated damages as well as damages for various alleged defects at PCH.

4. Lengthy pleadings and particulars (hyperlinked to various documents on which each party relies) have been filed by each of the parties.  The current statement of claim (statement of claim) is 384 pages,[1] with separate particulars running over more than 1,200 pages.[2]  The defence to the further amended statement of claim and counterclaim (defence and counterclaim) is 969 pages.[3]

   [1] Amended writ of summons indorsed with further amended statement of claim filed 21 May 2021.

   [2] Further amended particulars to statement of claim filed 21 May 2021.

   [3] Amended defence and counterclaim filed 18 June 2021.

5. Notwithstanding the volume of material filed by the parties, both John Holland and the State contend the other party's pleading is lacking in proper particulars and has filed an application for further and better particulars.  While the State says John Holland's pleading is defective, its primary submission is that the provision of information sought by John Holland's request for particulars can be addressed by case management orders that have been or will be made, including orders requiring the parties to file expert evidence and lay evidence on the issues on which each bears the onus of proof.[4] 

   [4] State's submissions filed 15 July 2021 [1] and 23 July 2021 [1].

6. In contrast, John Holland contends it requires further particulars of the State's defence so it can understand the case it has to meet.[5]  It submits that without proper particulars, it will not be aware of the State's case until expert evidence is filed in February 2022, less than 8 months prior to the proposed commencement of the trial.[6]  John Holland says this is insufficient to enable it to properly prepare for trial and puts the reserved trial dates at risk.

   [5] John Holland's submissions filed 23 July 2021 [3].

   [6] John Holland's submissions filed 23 July 2021 [11].

7. The parties have agreed the trial of this matter should commence in or about October 2022 and dates from mid October 2022 have been reserved for the hearing of the proceedings.

8. For the reasons that follow, it is my view that:

   (a)the State should provide further answers to requests 2, 49, 91, 92, 93, 95, 123 and 124;

   (b)if the State contends, as a matter of fact, that at the relevant times the current program needed to be updated to reflect particular events, the State should file a document identifying these events.  This should occur well prior to the filing of expert evidence;

   (c)the parties should file their critical path analysis well prior to the filing of their expert evidence in chief.  My preliminary view is this should occur in November 2021 but I will hear from the parties before making formal orders in this regard;

   (d)John Holland's application should otherwise be dismissed;

   (e)John Holland's proposal to supply a common data set to address the requests of the State does not sufficiently address the particulars that have been requested.  I will hear from the parties as to what orders should be made to give effect to these reasons; and

   (f)the State's application for particulars should otherwise be dismissed. 

Legal principles

1. A party's obligations in respect of pleadings is set out in O 20 of the Rules of the Supreme Court 1971 (WA) (Rules). Relevantly, in their statement of claim or defence, a party is obliged to:

   (a)plead a 'statement in a summary form of the material facts on which the party pleading relies for [its] claim or defence, as the case may be, but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits' (O 20 r 8);

   (b)plead as a material fact the meaning of a document which they contend;[7] and

   (c)ensure the pleading contains 'the necessary particulars of any claim, defence or other matter pleaded' (O 20 r 13).

   [7] Darbyshire v Leigh [1896] 1 QB 554, 559 cited with approval by Hasluck J in Green v Wilden Pty Ltd [2005] WASC 83 [349].

2. Vaughan J summarised the requirements of O 20 r 8 of the Rules in National Australia Bank Ltd v Rowe in the following terms:[8]

   The requirements of O 20 r 8(1) should be observed in preparing a pleading. Practitioners may do so confident in the knowledge that a summary statement of the material facts - and only such a summary statement - is what is required by the rules.  The true significance of the case management authorities in this area is that it is unnecessary to encumber a pleading with unnecessary particulars, and all the more so evidence, as it is inevitable that there will be subsequent pre-trial disclosure of the evidence to be adduced at trial. 

   A pleading must identify the issues, disclose an arguable claim or defence, and inform the parties of the case to be met.  In doing so it should be clear and complete but concise.  That standard is not met by over-complicating the pleading with unnecessary particulars and evidence.  (citation omitted)

   [8] National Australia Bank Ltd v Rowe [2018] WASC 330 [5] - [6]; endorsed on appeal Rowe v National Australia Bank Ltd [2019] WASCA 140; (2019) 56 WAR 1 [15] (Quinlan CJ); [165] (Murphy JA & Sofronoff AJA).

3. Specifically, in relation to the obligations of a defendant, a defendant may traverse an allegation in a statement of claim by 'a denial or a statement of non-admission' (O 20 r 14(2), Rules). There is no real difference in the effect of these. If a defendant wishes to raise positive allegations in answer to a plaintiff's claim, the defendant must plead the facts and circumstances giving rise to the positive case and cannot do this 'under cover of a mere denial'. Where a denial carries with it an implied affirmative case, a defendant may be ordered to provide particulars.[9] 

   [9] Alcoa of Australia Ltd v Apache Energy Ltd [No 3] [2013] WASC 334 [13].

4. In Pinson v Lloyds and National Provincial Foreign Bank Ltd,[10] Stable J considered the position where a defendant is responding to a negative allegation in a statement of claim.  A denial of the negative allegation is a double negative which can have one of three alternative meanings: first, a 'mere traverse' with no positive allegation; second, a negative which contains an affirmative allegation; and third, the position is unclear.[11] Stable J explained the basis upon which a defendant would be required to provide particulars in the following terms:[12]

   In my judgment, in each case where a negative allegation by a plaintiff in a pleading is traversed in the defence, the question whether or not [the] defendant can be ordered to give particulars depends upon whether the traverse is a mere traverse or whether, though negative in form, the negative is pregnant with an affirmative, in which case particulars of that affirmative must be given.

   [10]Pinson v Lloyds and National Provincial Foreign Bank Ltd [1941] 2 KB 72.

   [11]Pinson v Lloyds and National Provincial Foreign Bank Ltd, 83-84.

   [12]Pinson v Lloyds and National Provincial Foreign Bank Ltd, 85.

5. The purpose of particulars is to enunciate the issues that are to be tried and to identify the case that has to be met at trial.  A party is entitled to a sufficiently clear statement of the opponent's case to enable them to have a fair opportunity to meet it.[13]  For this reason, the requirement to provide proper particulars may sometimes require that parts of the evidence and the names of witnesses be disclosed. 

   [13]Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658, 664.

6. In considering whether the particulars provided are adequate, it is not a question as to whether a party has adequate knowledge of the actual facts but whether they have adequate knowledge of what the other party alleges are the facts.[14] 

   [14] Sims v Wran [1984] 1 NSWLR 317, 321 cited with approval in Attorney General of Western Australia v President of the Legislative Council of Western Australia [2020] WASC 399 [104].

7. The adequacy of the particulars must also be assessed in accordance with current case management principles (including those set out in O 1 r 4A and r 4B of the Rules) and what other orders will be made to define the issues and appraise the parties of the case they have to meet at trial.  It is only where the criticism of the pleading will significantly impact on the proper preparation of a case and its presentation at trial that criticisms of pleadings and their lack of particularisation will be 'seriously entertained'.[15] 

   [15] Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82 [6] - [8].

8. As was noted by Le Miere J in Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 6]:[16]

   The court discourages disputes relating to pleading issues which consume substantial amounts of time and expense which is often disproportionate to their significance to the just and effective resolution of the case.  The approach of the court to pleading disputes must take into account the purposes of pleading.  Those purposes relevantly include informing the court and the other parties of the case of the party putting forward the pleading.  The contemporary role of pleadings has to be viewed in the context of contemporary case management techniques and pre‑trial directions which include the preparation of a trial bundle identifying the documents that are to be adduced in evidence in the course of the trial and the exchange of witness statements and expert reports prior to trial.  Nevertheless, the fundamental proposition concerning pleadings is that a party is entitled to be informed about the opponent's case with sufficient clarity to allow that party a fair opportunity to meet the case.  The court will intervene if the parties do not identify with reasonable precision just what is and what is not in dispute.

   [16] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 6] [2016] WASC 218 [46].

John Holland's application for further and better particulars

1. John Holland's requests for further and better particulars of the State's defence are set out in a 99 page schedule.  From this schedule, it is apparent that John Holland made 125 requests (with most containing sub-paragraphs) of the State's defence.  The schedule sets out the request, the State's response, whether the request is the subject of this application and the State's response to this submission.[17] 

   [17] Schedule to State's submissions filed 23 July 2021.

2. In support of its application, John Holland relied on an affidavit of Lisa Maree Retallack, a senior legal counsel for John Holland.  Ms Retallack deposed to the documentary sources available to both John Holland and the State in respect of the matter.

3. The State objected to many of the requests made by John Holland and contends John Holland is seeking particulars of allegations the State does not make. 

4. Broadly speaking, many of John Holland's claims proceed on the basis that the work ultimately done in the construction of PCH differed significantly from the designs it submitted to the State.  John Holland says that this additional work was a variation of the Contract and it is entitled to an extension of time and additional costs.  In contrast, the State contends that John Holland did not complete the design work for much of PCH under the Original Contract prior to entry into the Contract and that the additional work does not constitute a variation.  Rather, this work needed to be completed as part of the Contract.  As a consequence, the State says the designs relied upon by John Holland in support of its various claims are not the designs against which John Holland's claim should be assessed as they were not final designs.  Unless John Holland proves that these are the final designs (as the State says they are required to do under the Contract), the State says John Holland's claim must fail. 

5. The other major area of dispute between the parties is the program of Works against which John Holland's claims for an extension of time must be assessed and the basis for any assessment.  John Holland says its claims should be assessed by reference to the then current program lodged with the State and that any assessment is done prospectively.  In contrast, the State says the Contract required the program to be updated to reflect the current position of the Works and it is necessary for John Holland to establish this as the baseline against which its claim will be assessed.  If John Holland does not do this, the State says John Holland's claim must fail. 

6. Senior counsel for John Holland submitted the State needed to 'actually identify the facts that it relies upon' so that John Holland can collate evidence, brief its experts and prepare for trial.[18]  Senior counsel for the State submitted that, on a proper reading of the State's defence and answers to the particulars, it could not be said that John Holland was 'in any serious doubt' as to the case it has to meet.[19]  While the State accepted John Holland may not yet understand the detail of all of the State's defence, this was not the purpose of particulars.  The provision of this detail will occur through other case management orders.

   [18]ts 218.

   [19] ts 221.

7. I accept that the proper conduct of this litigation will be substantially assisted if both parties clearly identify the issues in dispute and specify what facts are and are not in dispute so that the time and resources of both the court and the parties are not unnecessarily wasted.  However, where, as in this case, the parties take a fundamentally different view as to the proper construction of the Contract and that construction is identified and pleaded, this issue must await determination at trial.  A party cannot be required to provide particulars of a case it does not advance.

8. John Holland's primary concern about the State's case is that there is a 'lurking positive case advanced by the State' which is not specifically pleaded.[20] After reading the defence carefully, together with the parties' written submissions, and hearing oral submissions over a two-day hearing, I have ultimately accepted that, in most instances, this is not the case and that John Holland's requests seek particulars of matters not raised by the State. In reaching this conclusion, I observe the defence filed by the State does not adopt the approach urged by Vaughan J summarised above at [10]. The State's defence is not always clear or concise; it pleads to particulars of the statement of claim[21] which the State says was necessary because John Holland's particulars plead what are, in truth, material facts;[22] and, in many places, pleads detailed matters of evidence.  As a result, it is not always easy to readily understand what the State says in response to John Holland's claims. 

   [20] ts 196.

   [21] cf Turner v Bulletin Newspaper Co Pty Ltd (1974) 131 CLR 69, 80 (Barwick CJ).

   [22] State's submissions filed 23 July 2021 [4].

9. In this case, orders have been made for the parties to have leave to file evidence in chief by witness statements.[23]  Orders in relation to the filing of expert evidence, conferral between the experts and the preparation of a joint expert report, the preparation of a trial bundle and the filing of written submissions will also be made prior to the trial.  These matters will significantly reduce the risk of John Holland being taken by surprise at trial.  That said, now that John Holland has had the benefit of the State's written and oral submissions on this application and will have the benefit of expert reports and witness statements prior to trial, many of the issues it raises have been clarified.  As a result, it is my view that many of the paragraphs which are the subject of requests for particulars do not require further particularisation.

   [23] Orders of Justice Hill made 9 June 2021, Order 14.

1. I turn then to consider the specific requests made by John Holland which are the subject of this application.  Broadly speaking, the requests fall into five categories:

   (a)requests relating to delay analysis (requests 1, 2, 6, 8, 16, 19, 23, 25, 31, 33, 38, 40, 43 and 44);

   (b)design compliance requests (requests 3, 9, 11, 12, 20, 21, 26, 27, 34, 46, 47, 50, 52, 59, 61 - 64, 66, 67, 69 - 75, 78 and 84);

   (c)requests for particulars of denials (requests 13 - 15, 22, 24, 30, and 56);

   (d)requests for particulars of Australian standards (requests 91 and 95); and

   (e)miscellaneous requests (requests 4, 49, 92, 93, 123 and 124).

2. At the hearing before me, John Holland did not press requests 17 and 29.[24]

Delay analysis requests

[24] ts 357.

1. Within this broad category, there are three types of requests.  The first concerns requests for particulars of the State's contentions in relation to the assessment of an extension of time under the Contract and the methodology to be adopted.  The second concerns requests for what the State means when it says any claim must be assessed by reference to the then current program.  The third concerns the State's allegations as to concurrent delays. 

Requests 1 and 2

1. Requests 1 and 2 concern [92] of the defence, which responds to [92] of the statement of claim.  At [92], John Holland sets out what it says are the relevant terms and conditions of the Contract.  This includes the contention at [92(w)] that:

   John Holland's entitlement to an extension of time under the term pleaded in the preceding paragraph is to be assessed:

   (i)prospectively by reference to the then current Program; and

   (ii)by having regard to the facts at the time of assessment or, if disputed, at the time of the Dispute.

2. In response, at [92] of its defence, the State says that the relevant terms of the Contract are those set out in Schedules 1 and 4 of the defence, [92(t)] and [92(u)] are not admitted, and the paragraph is otherwise denied. 

3. John Holland made two requests in respect of [92] of the State's defence: first, for the State to identify the methodology by which an extension of time under cl 22.3 and cl 22.4 of the Contract is to be assessed; and second, for the State to identify what issue is taken with [92(w)] by reference to the Contract.

4. In response to the first question, the State refers to [96] to [98(a)] of Schedule 1 to its defence.  The State says John Holland is only entitled to an extension of time if it has incurred 'actual delay' and that the specific methodology for determination of 'actual delay' is prescribed by the Contract.  The State then states:

   The appropriate methodology will be the subject of expert construction programming opinion based upon all available evidence.  The State will provide particulars of the appropriate methodology or methodologies to assess whether John Holland incurred actual delay by way of exchange [of] expert evidence prior to trial.

5. In response to the second question, the State takes issue with every allegation in [92(w)] and refers again to [96] to [98(a)] of Schedule 1 to its defence.

6. The State's pleading of the relevant clauses of the Contract commences at [95] of Schedule 1.  This paragraph pleads that John Holland was obliged to give the State a delay notice when John Holland considered 'it had been or was likely to be delayed' in achieving Practical Completion or an LD Milestone and required John Holland to give notice to the State immediately, including particulars of the matters referred to in cl 22(a) of the Contract.  These particulars include details of the nature, cause and likely extent of the delay and the activities impacted by the delay, including all necessary supporting documentation. 

7. Paragraphs [96] to [98(a)] of Schedule 1 to the defence set out what the State says were John Holland's obligations under cl 22.3 and cl 22.4 of the Contract. These paragraphs plead that John Holland is only entitled to an extension of time if each of the requirements set out in [96] is satisfied and the delay was caused by a Delay Event (as defined in the Contract), which includes delay caused by the State or a variation order, and that John Holland is not entitled to an extension of time where there are concurrent causes of delay [97].

8. Notably, these paragraphs do not state whether the State says that on the proper construction of the Contract as a whole, the assessment of any entitlement to an extension of time is to be done prospectively, retrospectively, or a combination of these.

9. The question as to whether the Contract requires a prospective analysis, as contended by John Holland, or a different analysis is dictated by and depends on the proper construction of the Contract.[25]  The proper construction of the Contract is not a matter for expert evidence.  As was stated by Allanson J in CMA Assets Pty Ltd v John Holland Pty Ltd [No 6], a statement with which I agree, this is not a matter of engineering expertise;[26] it is to be done in accordance with the principles for proper construction of a commercial contract.[27] 

   [25] Civil Mining & Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd [2017] QSC 085 [663]; see also CMA Assets Pty Ltd v John Holland Pty Ltd [No 6] [2015] WASC 217 [323].

   [26]CMA Assets Pty Ltd v John Holland Pty Ltd [No 6] [323].

   [27] As summarised by the Court of Appeal in Black Box Control Pty Ltd v Terravision Pty Ltd [2016] WASCA 219 [42] and Sino Iron Pty Ltd v Mineralogy [2019] WASCA 80; (2019) 55 WAR 89 [295] - [298].

10. At present, in Schedule 1 to its defence, the State pleads the relevant terms of the Contract but does not plead what it says the meaning or effect of these terms are.  In my view, it is necessary for the State to plead what it contends is the proper construction of these clauses of the Contract and whether the Contract requires a prospective analysis, a retrospective analysis or a combination of the two.  This will enable John Holland to consider the State's position prior to the instruction of its expert witnesses and the finalisation of their expert evidence.  If these particulars are not provided now, John Holland will be required to wait until the State provides its expert evidence to understand what is contended by the State, which the State proposes will occur in February 2022.  I consider this proposal poses a real risk that John Holland's preparation for trial may be impacted, including by the requirement to file lengthy responsive expert evidence. 

11. However, the obligation to plead what the State contends is the proper construction of the contract does not, in my view, extend to the provision of particulars as to the methodology by which the extension of time is to be assessed.  In my view, the methodology to be adopted in assessing the extension of time is properly an area for expert evidence.  I note that this is consistent with the approach adopted by John Holland in its statement of claim which pleads what it contends is the proper construction of the contractual obligation of the assessment of the entitlement to an extension of time without pleading the specific methodology it says should be adopted. 

12. For these reasons, I consider the State is not required to provide further particulars in answer to question 1 (as to methodology) but is required to provide particulars in answer to question 2 (as to the proper construction of the Contract).

Requests 6, 16, 23, 31, 38, 43

1. Each of these requests is in similar terms.  Particulars are sought of the 'then current Program' against which John Holland's requests for an extension of time are to be assessed.

2. Request 6 seeks particulars of [101(b)] of the defence, which responds to [101] of the statement of claim.  This paragraph is in Chapter 2 of the statement of claim which sets out what John Holland says were the major variations to the Contract which caused the delay to Practical Completion.  Specifically, this paragraph concerns the short stay surgical unit (SSSU), patient information management services (PIMS) and executive offices. 

3. It is not in dispute that the works John Holland was required to perform under the Contract did not include a SSSU but included PIMS and executive offices ([98], statement of claim; [98], defence).  In October 2013, the State gave John Holland a direction to cease certain works (which John Holland says included the PIMS and executive offices) and to design an SSSU ([100], statement of claim; [100], defence).

4. In that context, John Holland pleads at [101] that the 'then current Program' for PCH was the 'Revision E Program having a status date of 30 September 2013' which showed Practical Completion occurring on 4 July 2015.  In response, the State pleads at [101(b)] that the 'then current Program' was the Revision E Baseline Program having a status date of 1 September 2013, submitted to the State on 2 September 2013, 'updated as at the material time as necessary to reflect the activities which John Holland was required to perform' in accordance with, and in compliance with, Schedule 7 of the Contract.

5. John Holland requested the State provide particulars of three aspects of its pleading.  First, what the State contends is the 'material time'.  Second, what the State means by 'updated as at the material time' by reference to the particular pleaded Baseline Program.  Third, what were the necessary updates to reflect the activities John Holland was required to perform 'in accordance with, and in compliance with, Schedule 7' of the Contract.

6. In response to the first question, the State says the material times were all times which were relevant for the purpose of demonstrating that the Delay Event caused actual delay to the achievement of an LD Milestone.  John Holland does not press a further answer to this request. 

7. In response to the second question, the State says they are not intending to refer to any particular version of the Program and will provide further particulars of which, if any, documented versions of the Program are relevant by the exchange of expert evidence and discovery. 

8. In response to the third question, the State refers to [75] to [79] of Schedule 1 to its defence and says further particulars of any updates required will be provided by way of the exchange of expert evidence and discovery.  At [75] of Schedule 1, the State pleads that John Holland was required to ensure the Program reflected the progress of all activities on the project and to update the Program.  At [76], the State says that pursuant to cl 10.5(c) of the Contract, John Holland was required to update the Program:

   (a)at least fortnightly;

   (b)if reasonably requested by the State; and

   (c)as otherwise necessary to reflect any changes to the nature or status of all work required for, and incidental to the project.

9. John Holland seeks orders for the State to provide further and better answers to the second and third requests.  They contend it is necessary for the State to provide proper particulars as to what it says is the then current Program, against which any entitlement to a variation must be assessed, as well as the updates the State says were required to be made in order to comply with Schedule 7.

10. In response, the State denies the particulars they have provided are inadequate and claims that they sufficiently identify the case John Holland has to meet. 

11. In order for the court to assess John Holland's claim for a variation in respect of the SSSU, PIMS and executive offices, it will be necessary for the court to make a factual finding as to what the 'then current Program' was.  On the pleadings as they currently stand, there is a dispute between the parties as to what this was - whether it was the Revision E Program submitted on 30 September 2013 and revised on 11 November 2013 and 17 March 2014 (as contended by John Holland) or the program submitted on 1 September 2013 updated in accordance with John Holland's contractual obligations in cl 10.5(c) of the Contract (as contended by the State). 

12. Senior counsel for John Holland submitted that if the State was contending the 'then current Program' was inaccurate or deficient, the State must have a factual basis for this and should be required to provide particulars of this.[28]

    [28] ts 196.

13. Senior counsel for the State submitted the starting point for the consideration of the request was [100] of the statement of claim which pleads that variation orders were given by the State on eight occasions over an 18 month period between 1 October 2013 and 7 April 2015.  The State submitted the most 'efficient and expeditious way', in accordance with modern case management principles, for the matter to proceed was not by the filing of lengthy particulars but through orders to be made for each party to file its evidence on the issues on which it bears the onus of proof.  After this occurs, the parties will have an opportunity to file responsive evidence.[29]

    [29] State's submissions filed 23 July 2021 [1].

14. From a review of the defence, the State raises three issues by way of defence to John Holland's claim.  The first, which is a factual issue, is how many variation orders were given by the State to John Holland and the content of these orders.  The second is a legal issue and concerns the proper construction of John Holland's obligations under cl 10.5(c) of the Contract and whether John Holland is required to prove at trial that the Program on which it relies reflected the current state of the works at PCH.  The third, which is also a factual issue, is what the 'then current Program' was.

15. If the State contends, as a matter of fact as opposed to reliance solely on the proper construction of the Contract, that the Program was required to be updated to reflect certain events, these events should be particularised.  In my view, if a factual defence is raised, it is not sufficient for the State to plead the 'then current Program' is the program pleaded in these paragraphs as updated to reflect the current state of work without particularising what, if any, matters the program needed to be updated for. 

16. The State proposes that particularisation of these paragraphs occur by the exchange of expert evidence in February 2022.  In my view, for at least two reasons, this is not satisfactory.  First, in my view, this is not the most cost-effective or efficient way of addressing the matter.  If John Holland is not informed of what the State considers is the current Program and what, if any, updates should have been made to it until it receives the State's expert evidence, this will inevitably lead to the necessity to file lengthy expert evidence in reply.  I consider it is more efficient, and likely to be more cost-effective, for this to be addressed in the experts' initial reports.  Second, on the current proposed timetable, expert evidence will not be exchanged until the end of February 2022, only seven months prior to the proposed start of the trial.  If John Holland is not informed of these matters until then, I consider there is a real risk the start of the trial will be delayed.

17. In my view, there are two options for the State to provide this information.  The first is to require the State to answer John Holland's request for further and better particulars.  The second is to require the State to confirm whether it is relying solely on the proper construction of the Contract or whether it raises any factual issue of specific current works that were not reflected in the 'then current Program'.  If it is proposing to rely on any factual issue, the State should file a document at a significantly earlier stage than the date for exchange of expert reports which identifies at the relevant times, the events which the 'then current Program' (as pleaded by the State) needed to be updated for. 

18. In my view, for the following reasons, the second alternative is the preferable approach.  First, I accept the State's submission that the provision of lengthy answers to particulars at this stage will distract the parties from their preparation for trial.  Second, while I accept it is necessary for the State to provide these particulars, I consider that the provision of a document which sets out these matters together with a critical path analysis is likely to provide John Holland with sufficient information to understand the case it has to meet at trial and to properly brief its experts.  Third, I accept that the specific updates (if any) to the 'then current Program' is likely to be informed by expert evidence.  The parties should have sufficient time, after discovery and inspection which is ongoing, to consider these matters with the assistance of their experts and prepare these documents.  In my view, it will be more efficient and cost-effective for the parties to concentrate on this rather than the provision of lengthy particulars.  Fourth, the provision of this document together with the critical path analysis at an early date will enable both parties' experts to have regard to these matters in the preparation of their expert reports in chief.  For these reasons, I consider that this option will address both of the issues identified at [56] of these reasons.

19. If, after these documents are filed, it is not clear what updates (if any) the State contends should have been made to the 'then current Program', I will consider a renewed application as to whether particulars should be ordered prior to John Holland filing its expert evidence. 

20. For these reasons, I decline to order the State to provide the further answers to request 6 at this stage but propose to order the State to file a document which confirms whether it is relying solely on a defence arising from what it says is the proper construction of the Contract and, if not, identifies, at the relevant times, what updates, if any, needed to be made to the Program pleaded by the State.  I will hear from the parties as to the timing of this before making any formal orders.

21. Similar issues arise in respect of requests:

    (a)16 - which seeks particulars of [134] of the defence, concerning the design, delivery and installation of a Siemens bi-plane digital angiographic device;

    (b)23 - which seeks particulars of [151] of the defence, concerning automation of the pharmacy department;

    (c)31 - which seeks particulars of [168] of the defence, concerning various aspects (including system interfaces) of the PCH Enterprise Service Bus (ESB), a messaging system that supports the transfer of data between ICT systems;

    (d)38 - which seeks particulars of [188] of the defence, concerning the real time location services (RTLS) tracking system; and

    (e)43 - which seeks particulars of [217] of the defence, concerning the likelihood of delay in achieving Practical Completion of the works.

22. The same reasoning applies to each of these requests.  For the reasons set out above at [58], I will not order the State to provide further particulars at this stage.  If, after the provision of the State's critical path analysis together with a document which identifies, at the relevant times, what updates (if any) needed to be made to the Program pleaded by the State, it is not clear what updates (if any) the State contends should have been made to the Program in respect of each of these matters, I will consider a renewed application for particulars at that stage.

Requests 8, 19, 25, 33, 40, 44

1. Each of these requests is in similar terms.  Each seeks particulars of the State's case in response to John Holland's claim there were delays in achieving Practical Completion, for which it is entitled to an extension of time under the Contract.  Specifically, John Holland requests particulars of whether the State alleges the delay claimed by John Holland was caused by an event that was not a Delay Event and, if so, the particulars of any such Delay Event.

2. Subsequent to the hearing of the application, the State filed an amended response to the requests for further and better particulars (amended response).[30]  In considering John Holland's request, I have had regard to both the original response and the amended response.

   [30] Defendant's amended response to requests for further and better particulars filed 31 August 2021.

1. Request 8 seeks particulars of [112] and [115] of the defence, which respond to [112] and [115] of the statement of claim.  These paragraphs concern the SSSU, PIMS and executive offices of PCH.

2. At [112], John Holland pleads there was a critical delay of 193 days in achieving Practical Completion (comprising 123 days for SSSU, 61 days for PIMS and nine days for the executive offices) which was 'not caused by an event that was not a Delay Event'.  At [115], John Holland pleads it is entitled to an extension of time of 193 days and an adjustment to the Contract Sum. 

3. In response, the State denies [112] and says particulars will be provided by the exchange of expert evidence prior to trial. In answer to [115], the State pleads a number of defences that arise under the Contract. First, John Holland did not give a notice required under cl 24.3(a) of the Contract to the State within the timeframe required by the Contract and, as such, is not entitled to an extension of time. Second, in the absence of the State issuing a variation order, John Holland was not entitled to make any claim for a variation. Third, John Holland failed to give a delay notice immediately upon becoming aware of the likelihood of a delay and as a consequence is not entitled to an extension of time and is barred from making any claim. The State otherwise denies the allegations in [115].

4. John Holland requested particulars of the State's denials in [112] and [115] of the defence and, in particular, whether the State contends the delay was caused in whole or part by an event that was not a Delay Event.  In response, the State says further particulars will be provided by the exchange of expert evidence prior to trial and objects to answering the request.  It then states that 'without prejudice to that objection', on the information presently available to it, the State did not allege any delay was caused in whole or part by an event that was not a Delay Event.  The State said particulars 'may' be provided of other causes of delay which were not Delay Events, including the dates and durations of any causes, by the exchange of expert evidence following discovery and prior to trial.

5. John Holland sought confirmation as to the State's position in respect of these matters, namely that the State:

   (a)does not allege the delay was caused in whole or part by an event that was not a Delay Event;

   (b)reserved the right to provide particulars if material was subsequently identified.

6. Senior counsel for John Holland submitted the State's defence was unclear as the State has denied a negative allegation ('there was no other cause for the delay').  John Holland submitted it was necessary for the State to clarify whether it was putting John Holland to the proof of this allegation or whether it intended to run an alternate positive case.[31]

   [31] ts 213.

7. At the hearing, senior counsel for the State confirmed the State did not plead any positive case as to the cause, in whole or in part, of any delay in respect of the SSSU, PIMS and the executive offices.  Rather, the State's position was that under the Contract, John Holland bore the onus of establishing the delay was caused by a Delay Event and it denies John Holland has established this. 

8. At that time, the State did not plead any delay was caused, in whole or part, by any other matter.  Its defence (and particulars), as framed at the time of the hearing, would prevent any positive case being advanced by the State in response to John Holland's allegations without amendment.  If the State intends to contend at trial there was a concurrent cause of the delay, this must be specifically pleaded.  In my view, it would be insufficient to rely on an expert report which has been exchanged without an amendment to the pleading (including the particulars).

9. The position in respect of this request changed from the date of the hearing to the date of this decision.  By its amended response to request 8, the State refers to nine different documents, including deeds of settlement and release between John Holland and various subcontractors.  The State says that these documents 'appear to refer to events that were not Delay Events and which John Holland has contended caused it critical delay in achieving Practical Completion', it is unable to provide further particulars at this stage in the absence of discovery and further particulars will be provided following discovery. 

10. Request 19 seeks particulars of [141] and [142] of the defence, which respond to [141] and [142] of the statement of claim. These paragraphs concern changes made to the design and construction of part of the operational procedural care unit (OPCU) which John Holland contends caused additional work to the value of approximately $5.1 million ([136(a)], statement of claim) and a delay of 92 days ([136(b)], statement of claim). At [141], John Holland pleads the delay of 92 days was 'not caused by an event that was not a Delay Event' and at [142], pleads the State's rejection of John Holland's claim for an adjustment of the Contract Sum. The State denies [141]. In answer to [142], the State pleads variation notices which it received from John Holland, its rejection of these claims and otherwise denies the paragraph.

11. In its answers to John Holland's request for particulars, the State contends the best particulars it can provide is that the alleged delay was caused in whole or in part by John Holland's delays in developing the designs of the OPCU and imaging department until in or about January 2015 and by 'slow progress by John Holland' in construction of the OPCU from in or about January 2015. 

12. The amended response to request 19 refers to the same nine documents referred to in the amended response to request 8 and repeats the response that these documents appear to refer to events that were not Delay Events and which John Holland has contended caused it critical delay in achieving Practical Completion. 

13. Request 25 seeks particulars of [162] and [165] of the defence, concerning the delays associated with the automation of the pharmacy department.  In its answers to John Holland's request for particulars, the State contends the best particulars it can provide is that the alleged delay was caused in whole or in part by John Holland's delay in the development of the designs of the OPCU, imaging department and the pharmacy. 

14. The amended response to request 25 refers to the same nine documents referred to in the amended response to request 8 and repeats the response that these documents appear to refer to events that were not Delay Events and which John Holland has contended caused it critical delay in achieving Practical Completion. 

15. Request 33 seeks particulars of [180] and [181] of the defence, concerning delays associated with the Building ESB.  The State, in answer to John Holland's request for particulars, says the best particulars it can provide is that the alleged delay was caused in whole or in part by two matters.  First, delays in the development of the design and construction of the Information and Communication Technology (ICT) systems (by either or both of John Holland and its subcontractor Schneider Electric Buildings Australia Pty Ltd (SEBA)) and second, John Holland's slow progress in construction of the mental health department and the OPCU 'and potentially of other areas'. 

16. The amended response to request 33 refers to the same nine documents referred to in the amended response to request 8 and repeats the response that these documents appear to refer to events that were not Delay events and which John Holland has contended caused it critical delay in achieving Practical Completion. 

17. Request 40 seeks particulars of [196] and [198] of the defence, concerning delays associated with the RTLS tracking system.  The State says the best particulars it can provide is that the alleged delay was caused in whole or in part by two matters.  First, delays in the development of the design and construction of the ICT systems (by either or both of John Holland and its subcontractor SEBA) and second, John Holland's slow progress in close-out, testing and commissioning and defect resolution.

18. The amended response to request 40 refers to the same nine documents referred to in the amended response to request 8 and repeats the response that these documents appear to refer to events that were not Delay Events and which John Holland has contended caused it critical delay in achieving Practical Completion.

19. Request 44 seeks particulars of [224] of the defence, concerning delays associated with the resolution of the lead issue at PCH.  The State says the best particulars it can provide is that the alleged delay was caused in whole or in part by delays by John Holland in testing and commissioning and defect resolution.

20. The amended response to request 44 refers to the same nine documents referred to in the amended response to request 8 and repeats the response that these documents appear to refer to events that were not Delay events and which John Holland has contended caused it critical delay in achieving Practical Completion. 

21. Senior counsel for John Holland submitted the particulars provided by the State were conclusions and at such a high level as to not provide any real assistance in relation to the issues that require investigation.  By way of example, he referred to the answer to request 19 and explained that the OPCU had four fit out designs or areas.  Within these zones, there are six different groups of activities and within each of these groups, multiple activities or services.  Senior counsel for John Holland submitted there were over 1,000 different aspects of the design and construction of the OPCU.  For this reason, John Holland contended a generalised complaint of delays in the design and in slow progress in construction of the OPCU until 2015 did not put John Holland on notice of the case it has to meet.[32]

    [32] ts 297 - 298.

22. In respect of each of these requests, the State says it is unable to provide further particulars in the absence of discovery and that further particulars of other causes and the dates and durations of any causes will be provided by the exchange of expert evidence following discovery prior to trial.  Senior counsel for the State emphasised that it is at an information disadvantage to John Holland, particularly in respect of the work of its subcontractors and that in these circumstances, it is common to defer the provision of particulars until after discovery and other case management processes.[33]  He submitted that John Holland was overcomplicating the position.  The State, in its particulars, has provided particulars of the subcontractors and the subcontracts that need to be investigated for experts to be briefed as to whether the work of these subcontractors was or was not a cause of delay.[34]

    [33] State's submissions filed 23 July 2021 [22] and the cases cited at footnote 3.

    [34] ts 300.

23. While I accept that the State has broadly identified what it contends are the concurrent delays in respect of these matters, the description is at a high level of generality.  I accept the submission of senior counsel for John Holland that the descriptions by the State are conclusions and do not set out the material facts on which they are based.  Accordingly, the descriptions do not provide John Holland with sufficient notice of the matters that require investigation and briefing of the experts.  In my view, it will be necessary for the State to provide proper particulars of the concurrent delays so that John Holland is not taken by surprise.

24. In my view, there are two options for the State to provide this information.  The first is to require the State to answer John Holland's request for further and better particulars.  The second is to require the State to file its critical path analysis at a significantly earlier stage than the date for the exchange of expert reports. 

25. In my view, for the following reasons, the second alternative is the preferable approach.  First, I accept the State's submission that the requirement to provide lengthy answers to particulars at this stage will distract the parties from their preparation for trial.  Second, I accept that while the State had access to information during the construction of PCH, as detailed in the affidavit of Ms Retallack, it does not have access to all relevant documents in the absence of discovery, most particularly, the relevant subcontractor information.  Discovery and inspection is ongoing.  The time of the provision of the critical path analysis should take account of this ongoing process.  Third, while I accept it is necessary for the State to provide this information, I consider that the provision of the critical path analysis is likely to provide John Holland with the information required to understand the case it has to meet at trial and to properly brief its experts.  I accept that the preparation of the critical path analysis will be a matter of expert evidence.  In my view, it will be more efficient and cost-effective for the parties to concentrate on the briefing of their experts and preparation for trial rather than the provision of lengthy particulars.  Fourth, the provision of the critical path analysis at an early date will enable both parties' experts to have regard to these matters in the preparation of their expert reports in chief. 

26. However, if, after the critical path analysis and expert evidence has been filed by the State, it is not clear what the State says are the other events on which the State relies and the dates and duration of the delay alleged to be caused by the events it pleads, I will consider a renewed application as to whether particulars should be ordered at that stage prior to John Holland filing any responsive expert evidence. 

Design compliance requests

1. A significant number of the particulars sought by John Holland concern requests for particulars of the State's response in respect of design drawings submitted by John Holland.  In general, by its pleading, the State contends the drawing submitted was subject to comment, was not a final Detailed Design and did not define the scope of John Holland's obligations under the Contract.

2. Senior counsel for John Holland submitted it was not clear from the State's defence whether the State puts in issue the compliance of the design documents with the Project Brief or whether it contends the documents submitted by John Holland were not a finalised design.  This ambiguity was compounded by some paragraphs of the defence, which specifically plead the design provided by John Holland did not comply with the Project Brief (see [116(n)], [118(f)], and [398(k)], defence).  He contended it was critical for John Holland to understand what specific provisions of the Contract the State relied on so that John Holland could properly prepare its case.

3. The Contract relevantly provides that:

   (a)the review procedures set out in schedule 3 apply to all design documents (cl 8.4(a)) and that any comment by the State does not constitute a variation (cl 8.4(b)(iv));

   (b)John Holland was required to submit design documents for review in accordance with schedule 4;

   (c)under schedule 3, the State may review a document and provide comments within 10 business days.  Where a comment is provided or a document rejected, John Holland is required to amend the document and resubmit it;

   (d)the specific procedures for design work are set out in schedule 4.  Schedule 4 contemplates three design stages being concept design, schematic design and detailed design.  The schedule sets out specific requirements for each of these stages.

4. The State in its defence pleads the drawings relied upon by John Holland were subject to comment, not a final Detailed Design, and did not define or form the scope of John Holland's obligations for the design and construction of PCH.  Senior counsel for John Holland complained that this pleading did not make clear whether the State raised a material fact in relation to the documents or whether it was 'verbiage, a description of the status of the documents on which nothing turns'.[35]

   [35] ts 305.

5. During oral submissions, senior counsel for John Holland referred me to some specific examples being requests 3, 9, 46, 52, 59 and 63.[36]  I will address each of these examples first before turning to the remaining requests within this category.

Request 3

[36] ts 301.

1. Request 3 seeks particulars of [98] of the defence, which responds to [98] of the statement of claim.  At [98], John Holland pleads the Works it was required to design and construct under the Contract did not include an SSSU and included on Level 3, East Block and Centre Block, the PIMS, the executive offices and an admission and discharge care unit (ADCU).  John Holland refers to sections 23, 26 and 30 of the Functional Brief, the schedule of accommodation and Revision K of the floor plans for Level 3, Centre Block.

2. In response, the State admits the Works did not include an SSSU ([98(a)], defence) and included the design and construction of the PIMS, executive offices and an ADCU ([98(b)].  It then pleads the drawing relied upon by John Holland was submitted as part of an Interim Detailed Design Report, was subject to comment from the State, was not a final Detailed Design and did not define or form the scope of John Holland's obligations under the Contract [98(c)].  The allegations in [98] of the statement of claim are otherwise denied [98(d)].

3. John Holland sought particulars of three aspects of the State's defence.  First, whether the State contended the drawings did not satisfy the requirements of the Contract.  Second, what comments by the State required amendments to be made to the submitted drawings.  Third, what work, which was the subject of the variation claim by John Holland, was required to be done to meet John Holland's obligations under the Contract. 

4. The State objected to providing further particulars of its pleading on the basis the particulars are sought of an allegation the State does not make.  Notwithstanding this general objection, in its answers, the State clarified some aspects of its case.  The State says the drawing relied upon by John Holland was submitted as an Interim Detailed Design Report and refers to [11(e)], [11(f)] and [21] of Schedule 1 to the defence.  These paragraphs refer to cl 8 of the Original Contract.  The State pleads that under the Original Contract, John Holland was solely responsible for the design work of PCH, the review procedures set out in schedule 3 of the Original Contract applied to all documents submitted by John Holland, and any review did not limit John Holland's contractual obligations or constitute waiver or election by the State or approval of any amendment or variation to John Holland's obligations. 

5. John Holland contends the State's response is 'devoid of meaning' and that (at least) two alternative meanings were open on the answers provided: first, until there was a detailed final Detailed Design, there was no design or scope and the State could amend the plans without consequence; and second, the drawings did not comply with the Project Brief.  Senior counsel for John Holland submitted it was necessary for the State to clarify its position. 

6. Senior counsel for the State emphasised that as a variation claim, it was necessary for John Holland to prove the scope of the relevant work, there was a variation from that scope and the consequence of this was variation in terms of time and cost.[37]  Senior counsel submitted this issue was an example of the fundamental difference in the way the parties saw and intended to run their cases at trial.  The State says it is clear from a reading of its defence in its entirety that the State disputes John Holland completed all the design work which was required under the Original Contract.  When the parties entered into the Contract, John Holland was still under an obligation to complete this design work.  On this basis, the State says it is clear from [98] of its defence that the State contends the document relied upon by John Holland against which the variation and consequent delay and disruption claim should be assessed was not a finalised design and it relies on the terms of the Contract.

   [37] ts 318.

1. At present, in [98] of its defence, the State does not plead there was any non-compliance with the Project Brief or that a comment was provided which was not given effect to.  It is merely a general allegation that the document relied upon is not a Detailed Design and is not the correct starting point for the assessment of John Holland's claim.  Its defence, as presently framed, does not raise any positive case.  A positive case could not be advanced by the State in response to John Holland's allegations without an amendment to the pleading.  This appears to be accepted by the State as evidenced by those paragraphs of the defence which plead a positive allegation of non-compliance (see [92] above).  If the State intends to contend at trial that the drawings submitted by John Holland for Level 3, East Block and Centre Block did not comply with the Project Brief or should have been amended to reflect comments of the State, this must be specifically pleaded and particulars provided.  If the State amends its pleading to raise any instances of non-compliance with the Project Brief or specific comments without provision of appropriate particulars, this matter can be revisited at that stage.

2. While there may be some debate as to whether the State's defence as summarised above at [97] is clear and concise, its position has now been clarified.  The State is not running a positive case of non-compliance with the project brief or that John Holland failed to amend the drawings in compliance with the Contract.  The issue between the parties is whether John Holland can prove at trial that the designs it particularises in its claim are the designs against which its claim should be assessed.  This is sufficiently made clear by the defence, when read with the answers to the particulars and the submissions on this application. 

3. For these reasons, I decline to order the State to provide the further particulars requested in request 3.

Request 9

1. Request 9 seeks particulars of [116(j)] and [116(l)(iv)] of the defence, which responds to [116] of the statement of claim.  At [116] of the statement of claim, John Holland pleads it was required to design and construct an OPCU containing 12 operating theatres, two of which were to be intraoperative magnetic resonance imaging (iMRI) operating theatres (one being a hybrid lite operating theatre), and a magnetic resonance imaging (MRI) room, all of which were to be modular rooms ([116(a)] and [116(b)]).  The OPCU was to include a hybrid interventional operating theatre containing a cardiac/vascular imaging system similar to that at the Royal Children's Hospital in Melbourne ([116(c)]).

2. The State pleads a lengthy defence in response which runs over 15 pages and sets out what the State contends is the history of the design of the OPCU and the subsequent variations to the Contract.  Specifically, the State contends the detailed design of the OPCU was not completed prior to entry into the Contract ([116(k)]), any amendments to the OPCU were deemed to be included in the Contract ([116(m)] and [116(o)]) and that certain variations submitted by John Holland have been agreed by the State ([116(q)] to [116(w)]).

3. John Holland requested particulars of a number of matters, including at request 9(e) insofar as the State pleads the design was incomplete or subject to comment, whether any comment was made which required the drawings to be updated.  The State objected to providing these particulars on the basis this was not an allegation it made.  Without prejudice to that objection, it provided particulars of the basis on which it said the design was incomplete by reference to a document (OSP.0001.092437) and to other paragraphs of the pleading.

4. Senior counsel for John Holland provided me with a copy of this document as well as the covering email (OSP.0001.092436).  The document referred to by the State is a 70 page excel spreadsheet which contains comments on many aspects of the design submitted by John Holland.  Senior counsel for John Holland contended these documents did not answer the question asked of the State - namely whether the State is relying on comments provided by the State as a comment under schedules 3 or 4 of the Contract (as set out in [93] above).

5. The covering email to the spreadsheet is dated 20 December 2012 and states that the 'applicable clause' in the Contract is cl 2.4(e)(ii).  There is no clause of this description in the Contract, although there is a cl 2.4(e)(ii) of schedule 4 in the Original Contract.  This clause required John Holland to submit a detailed design report at the completion of the design process set out in cl 2.4(a) to cl 2.4(d) of schedule 4.  Clause 2.4 concerns the presentations that John Holland was required to do on its detailed designs and required the State to issue a notice within a certain timeframe containing various information including any further comments on the drawings, schedules and models. 

6. Senior counsel for the State submitted that from a reading of the defence in its entirety, it was clear the State raised two matters by way of defence to John Holland's claim in relation to design.  First, the design documents relied upon by John Holland were not final design documents and, as such, did not define the scope of its work under the Contract and were not the correct documents against which to assess John Holland's claim for variation and delay.  Second, while the State acknowledges there was a variation to the design as a result of changes required by the State, it has authorised and paid variation claims in respect of these changes. 

7. At present, apart from the matters raised at [116(n)] of the defence, the State does not plead there was any non-compliance with the Project Brief in respect of the OPCU.  The State's answers to particulars, and the documents referred to therein, do not contend otherwise.  These documents are relied upon in support of the State's defence that the design documents were not final.  The State's defence, as presently framed, would prevent any additional positive case, apart from that at [116(n)], being advanced by the State in response to John Holland's allegations without an amendment to its defence.  If the State seeks to amend its pleading to raise any further instances of non-compliance with the Project Brief, without providing appropriate particulars, the matter can be revisited at that stage.

8. For these reasons, I consider John Holland has sufficient clarity of the State's defence and decline to order the State to provide the further particulars requested in request 9.

Request 46

1. Request 46 seeks particulars of [252] of the defence, which responds to [252] of the statement of claim, concerning the installation of WiFi at PCH.  At [252] of the statement of claim, John Holland sets out what it says were the contractual obligations of the parties.  It says the State was required to supply and install all indoor wireless access points (WAP) in locations to be determined by the State and John Holland was required to design the services and supply and install all data points, structured cabling and equipment necessary to ensure 100% wireless local area network coverage throughout PCH.  At [253], John Holland pleads that on a proper construction of the Contract, it was not required to design or install any more than 653 indoor WAPs at PCH.  At [254] and [255], John Holland says it was required to install 1,009 indoor WAPs which was a material change to the Contract.

2. The State has pleaded a lengthy defence in response to these paragraphs which runs over 19 pages.  At [252], the State sets out the requirements of the Technical Brief ([252(a)]), pleads the design had not been completed prior to entry into the Contract, and that John Holland was obliged to complete the detailed designs of the WAPs under the Contract for the Contract Sum ([252(g)]).  The State denies [253] of the statement of claim and, in answer to [254], pleads a series of communications between the parties.  The State accepts there has been a variation to the Contract but says it has determined what the variation is and the value of it ([254(q)]), and John Holland is not entitled to any further adjustment to the Contract.  Finally, the State says other communications were not variation orders under the Contract and John Holland did not, within the contractually stipulated time, give the notice required under the Contract ([254(q)(iii) - (v)]).

3. Senior counsel for the State submitted it was clear from a reading of the relevant paragraphs of the defence that the primary issue between the parties is the proper construction of John Holland's obligations under the Contract.  The State denies that John Holland's obligation under the Contract was to design and install not more than 653 indoor WAPs and says its obligation was to provide 100% WiFi coverage throughout PCH.

4. At present, the State does not plead there was any non-compliance with the Project Brief in respect of the installation of WiFi at PCH.  The reference in answer 46(b)(ii) of the Schedule to comments made by the State is to support the State's contention the drawings were not final drawings as opposed to particulars of non-compliance with the Project Brief. 

5. As presently framed, the State's defence turns on the proper construction of the Contract - namely whether John Holland was required to design the services and install a specific number of WAPs or whether its obligation was to design the services and install WAPs providing 100% wireless coverage throughout PCH. 

6. On its present pleading, the State cannot advance a positive case of non-compliance with the Technical Brief without amendment.  If the State seeks to amend its pleading and does not provide proper particulars of its claim, the matter can be revisited at that stage.

7. In my view, for the reasons set out above, I consider the State's defence is sufficiently clear to put John Holland on notice of the case it has to meet at trial.  On this basis, I decline to order the State to provide the further particulars requested in request 46.

Request 52

1. Request 52 seeks particulars of [302] of the defence, which responds to [302] of the statement of claim concerning the Central Sterilising Supply Department (CSSD).  John Holland contends that on a proper construction of the Contract, it was required to design and construct a CSSD with a total area of 1,472.3m² in accordance with the Functional Brief, the layout set out in the Level 2 general arrangement drawing and the Design Documents comprising certain rooms and areas and not including others.

2. Once again, the State pleads a lengthy defence to this paragraph which runs over 10 pages.  The State pleads what it contends were John Holland's obligations under the Project Brief and says the design of the CSSD was not complete at the time of entry into the Contract ([302(e)]).  The State pleads that on 26 September 2013, it gave a notice to John Holland attaching an amended Functional Brief and directed John Holland to re-design the CSSD to reflect the amended brief ([302(k)]) and, on 27 September 2013, required a variation quotation for this work ([302(l)]).  Various claims were submitted by John Holland which were assessed by the State ([302(q)], [302(u)] and [302(aa)]).  Ultimately, a variation order was issued, and the value of the claim was assessed by the State.  The State says that the correspondence it received from John Holland was not a delay notice under the Contract as it did not include a notice as to the likelihood of delay or the particulars required by cl 22.2(a) of the Contract and was not sent immediately upon becoming aware of the likelihood of delay ([302(n)]). 

3. In answer to the requests for particulars of the non-compliance with the Project Brief, the State objects to answering the requests on the basis they seek particulars of an allegation not pleaded by the State.  The State then clarifies its defence.  It contends John Holland pleads its scope of work was defined by certain documents, which the State denies comprised the final design documents or the extent of John Holland's obligations for the design and construction of the CSSD.

4. That is, as presently pleaded, the State does not contend there was any non-compliance with Project Brief in respect of the design and construction of the CSSD.  The State's defence raises three matters.  First, the proper construction of John Holland's obligations under the Contract; second, whether John Holland has complied with the contractual provisions for the giving of notices; and third, the impact and effect of the variation orders issued by the State.  The State does not advance a positive case of non-compliance with the Technical Brief and cannot do so without amendment. 

5. While I consider there may be some debate about whether the State's defence is clear or concise, the defence together with the answers to the particulars and the submissions on this application have clarified the State's position.  On this basis, I consider John Holland is aware of the case it has to meet at trial.  For these reasons, I decline to order the State to provide the further particulars requested in request 52.

Request 59

1. Request 59 seeks particulars of [359] of the defence, which responds to [359] of the statement of claim concerning the digital signage for PCH.  John Holland contends that on a proper construction of the Contract, it was responsible for the detailed design of digital signage, the supply of power and cabling, and ensuring PCH was designed and constructed with an electronic booking system for all meeting rooms.  It pleads it was not responsible for the design, supply and installation of cabling infrastructure for digital touch screens outside the meeting rooms which accessed the electronic booking system.  In [260], John Holland pleads the State materially changed the scope of work it was required to perform by amending the detailed design to require structured cabling infrastructure for 378 digital touch screens. 

2. In response, the State pleads a lengthy defence running over 10 pages.  The State pleads what John Holland's obligations were under the Technical Brief and says the design of digital signage was not complete at the time of entry into the Contract.  The State sets out the history of communications in relation to the electronic signage and denies any of these communications constituted a variation to the Contract or was a variation order under the Contract.  In addition, the State pleads John Holland did not give a notice in writing setting out the reasons it considered the communications it received from the State constituted a variation as required under cl 24.3(a) of the Contract. 

3. In answer to John Holland's request for particulars, the State objects to answering the request on the basis it seeks particulars of an allegation not pleaded by the State.  John Holland says it is not clear whether the State contends John Holland was or was not required to design, supply and install structured cabling infrastructure for digital touch screens and the State should be required to provide this clarification. 

4. This is another example where the dispute between the parties concerns the different views the parties take as to John Holland's obligations under the Contract.  John Holland seeks particulars of where the Contract specifies it was obliged to provide cabling infrastructure for 378 digital touch screens.  This misunderstands the State's defence.  The State's defence raises two matters.  The first concerns the proper construction of John Holland's obligations under the Contract and whether John Holland was obliged under the Contract to design, integrate, install and commission digital signage, whatever this entailed (as pleaded by the State) or whether John Holland was not required to supply infrastructure for 378 digital touch screens (as contended by John Holland).  The second is whether John Holland complied with the contractual provisions for the giving of notices under cl 24.3(a) of the Contract.

5. I accept the State's submission that John Holland has asked for particulars of an allegation not made by the State.  On this basis, I decline to order the State to provide the requested particulars. 

Request 63

1. Request 63 seeks particulars of [398] of the defence which responds to [398] of the statement of claim concerning the design, supply and installation of generic room staff bases or workstations.  John Holland pleads it was required under the Contract to supply and install 94 workstations across 23 rooms.  In response, the State pleads what it says were John Holland's requirements under the Functional Brief and the Technical Brief.  The State says the designs of the workstations it received from John Holland, as set out in the particulars to [398], were not Detailed Designs and John Holland was obliged under the Contract to complete the Detailed Design of the workstations and supply and install them for the Contract Sum.  The State also pleads at [398(k)], 'further, and in any event', that the design did not comply with the Project Brief and the reasons for this. 

2. John Holland seeks particulars of the basis on which the State contends the design documents did not comply with the Project Brief, what amendments were required to be made to take account of any comments by the State, and what the State says was the number and type of workstations John Holland was required to supply and install.

3. I accept the submission of the State that these requests misunderstand the State's defence.  The State's defence raises two matters.  First, the proper construction of John Holland's obligations under the Contract to design, supply and install workstations and, in particular, the content of these obligations.  This includes consideration of whether the designs submitted by John Holland to the State defined the scope of work to be performed by John Holland under the Contract.  Second, whether in any event, the design of the workstations complied with the Project Brief.

4. In my view, the request for particulars seeks particulars of allegations that are not made by the State.  On this basis, I decline to order the State to provide answers to request 63.

Remaining requests

1. Similar issues arise in respect of the following requests:

   (a)requests 26 and 27 - which seek particulars of [166] of the defence concerning John Holland's claim in respect of the ESB.  In addition to the defences raised by the State as to whether the designs submitted by John Holland to the State defined the scope of work to be performed by John Holland under the Contract against which its claim is to be assessed, the State also contends that, by not completing the final design prior to entry into the Contract, John Holland assumed the risk of any cost increase ([166(b)(iv)], [166(h)(ii)], defence) and was obliged to perform the work for the Contract Sum ([166(i)], defence);

   (b)request 34 - which seeks particulars of [182] of the defence concerning John Holland's claim in respect of the RTLS.  In addition to the defences raised by the State as to whether the designs submitted by John Holland to the State defined the scope of work to be performed by John Holland under the Contract against which its claim is to be assessed, the State also contends that, by not completing the final design prior to entry into the Contract, John Holland assumed the risk of any cost increase of the ESB, including the RTLS interface ([182(d)(ii)], defence);

   (c)request 47 - which seeks particulars of [260] of the defence.  This paragraph responds to John Holland's claim in relation to its obligation to supply data points for RTLS.  The primary issue between the parties is whether, on the proper construction of the Contract, John Holland was required to supply and install 484 data points ([260], statement of claim) or to ensure that wireless access point cabling could support the RTLS to Health Information Network (HIN) standards and that WiFi was available throughout PCH ([260(a)], defence).  In addition to this issue, which turns on the proper construction of the Contract, the State contends that, by not finalising the design prior to entry into the Contract, on entry into the Contract, John Holland accepted any risks of cost increases ([260(e)(ii)], defence);

   (d)request 50 - which seeks particulars of [278(f)] and [278(g)] of the defence concerning the design of the integrated research and education facility (IREF).  The State accepts that there was a variation to Level 6 and 7 by notice given 24 August 2016 ([278(i)], defence) which it has determined the value of, but otherwise relies on its defence as to whether the designs submitted by John Holland to the State defined the scope of work to be performed by John Holland under the Contract against which its claim is to be assessed;

   (e)request 61 - which seeks particulars of [378] of the defence concerning the design and construction of a central computer room (CCR) with copper and fibre cabling connections.  The primary issue between the parties is whether, on the proper construction of the Contract, John Holland was required to design and construct a CCR with 67 cabinets (comprising 14 active network and third party cabinets and 53 storage cabinets) with a certain number of copper and fibre cabling connections ([378], statement of claim) or to ensure that all ICT equipment was installed with the core ICT network, servers and storage in CCRs as directed by the State ([378], defence).  In addition to this issue, which turns on the proper construction of the Contract, the State contends that, by not finalising the design prior to entry into the Contract, by entry into the Contract, John Holland accepted any risks of cost increases in the design and construction of the CCR ([378(g)(ii)], defence);

   (f)request 62 - which seeks particulars of [388] of the defence concerning the design of the clinic staff bases.  The primary issue between the parties is whether, on the proper construction of the Contract, John Holland was required to supply and install fixed staff bases ([388], statement of claim) or 'bespoke' staff bases ([389], statement of claim).  In addition to this issue, which turns on the proper construction of the Contract, the State contends that the design of the staff bases submitted by John Holland did not comply with the Project Brief ([388(g)], defence);

   (g)request 64 - which seeks particulars of [408] of the defence concerning the supply of sensor taps.  The primary issue between the parties is whether, on the proper construction of the Contract, John Holland was required to supply and install 138 sensor taps and 189 non-sensor taps ([408], statement of claim) or to provide tapware to all areas within the PCH ([408], defence);

   (h)request 66 - which seeks particulars of [438] of the defence concerning the design of the mortuary bay.  In addition to the defence raised by the State as to whether the designs submitted by John Holland to the State defined the scope of work to be performed by John Holland under the Contract against which its claim is to be assessed, the State contends that, by not completing the final design prior to entry into the Contract, on entry into the Contract, John Holland assumed the risk of any cost increases ([438(e)(ii)], defence);

   (i)request 67 - which seeks particulars of [448] of the defence concerning the design of the inpatient unit ensuite bathrooms; 

   (j)request 69 - which seeks particulars of [468] of the defence concerning the supply and installation of general power outlets and whether this included a requirement to supply universal serial bus (USB) charging outlets;

   (k)request 70 - which seeks particulars of [478] of the defence concerning the supply and installation of luminaires and what additional amount John Holland would be entitled to in the event the State requested John Holland supply and install LED lights.  In addition to the defence raised as to whether the designs submitted by John Holland to the State defined the scope of work to be performed by John Holland under the Contract against which its claim is to be assessed, the State contends that John Holland agreed not to make any claim for delay or costs associated with delay for luminaires ([478(g)(ii)], defence);

   (l)request 71 - which seeks particulars of [488] of the defence concerning the supply and installation of window treatments and whether this included a requirement to supply and install motorised blinds;

   (m)request 72 - which seeks particulars of [498] of the defence concerning the provision and installation of fixed duress alarms;

   (n)request 73 - which seeks particulars of [508] of the defence concerning the design and construction of an atrium screen around the internal permitter of levels 1 to 7 of the internal foyer of PCH;

   (o)request 74 - which seeks particulars of [528] of the defence concerning the design of the stairwells and whether the design needed to provide for enclosures for fire services to be located within the stairwells;

   (p)request 75 - which seeks particulars of [538] of the defence concerning the supply and installation of Corian benchtops and splashbacks or laminate benchtops and acrylic panel splashbacks;

   (q)request 78 - which seeks particulars of [605] and [606] of the defence concerning the design and construction of all necessary services, including refrigerators and freezers, and the design, installation and commissioning of heating, ventilation and air-conditioning systems and whether it included a requirement for individual temperature monitoring; and

   (r)request 84 - which seeks particulars of [652] of the defence concerning the design and construction of the main patient kitchen and function store and catering preparation room and whether this included a requirement to supply the equipment for these rooms.

1. On its defence as presently pleaded, the State does not run a positive case; it simply traverses the allegations made by John Holland.  The State is entitled to do so but will be held to its pleading.  That is, at trial, unless the pleading is amended, the State will not be able to run a positive case at trial.  On this basis, I decline John Holland's application for the State to provide further and better answers to request 59. 

Particulars of Australian standards

1. These requests for particulars concern the State's counterclaim in respect of defects with the cryogenic store (request 91 in respect of [783(c)]) and medical gas (request 95 in respect of [804(a)]).

2. In each of these paragraphs, the State refers to John Holland's obligations by reference to specific sections of the Technical Brief and 'as defined in the Standards and Guidelines'.

3. Request 91 seeks particulars of the Codes and Standards relied upon by the State (and the particular clauses within these).  In response, the State identified the codes and standards as including two particular codes but has not identified the particular clauses of these standards.  Request 95 seeks particulars of the Codes and Standards relied upon by the State (and the particular clauses within these).  In response, the State has referred to Item 14 of Section H of the Technical Brief, which refers to 17 different codes and standards.  In both cases, the State says further particulars will be provided prior to trial.

4. The State does not dispute it is required to provide particulars of these matters but has not yet been able to do so.  The State submits it should not be ordered to provide particulars as it has offered to file and serve its evidence in chief on the counterclaim which will contain the particulars sought.  This, in the State's submission, will provide John Holland with sufficient time to prepare its response to these allegations.

5. At present, orders have not yet been made for the filing of expert evidence or witness statements.  The State proposes that orders be made for the filing of expert evidence in support of the counterclaim and its lay witnesses by 18 February 2022 and responsive material be filed by 31 May 2022.

6. In my view, there is a risk the State's proposal may not provide John Holland with sufficient time to consider the matters relied upon by the State.  While I appreciate John Holland has requested particulars of significant numbers of paragraphs of the State's pleading, this paragraph is contained in the State's counterclaim.  For that reason, the State should know the basis on which it brings its claim and be able to provide the requested particulars within a reasonable timeframe, well prior to the filing and service of its evidence.  My preliminary view is that these particulars should be provided by no later than the end of November 2021 but will hear from the parties prior to making any orders.

Miscellaneous requests

Request 4

1. Request 4 seeks particulars of [99] of the defence, which responds to [99] of the statement of claim.  At [99], John Holland contends that as at 30 September 2013, it had completed and submitted the detailed design for Level 3, East Block and Centre Block of the PCH and undertaken certain construction work.  In response, the State pleads that John Holland had submitted certain documents for comment, admits John Holland had undertaken the construction work particularised by John Holland (at [99.5] to [99.7] of the particulars to the statement of claim) and otherwise denies the paragraph.

2. John Holland requested particulars as to the status of the design and construction works as at 30 September 2013.  The State objects to answering the request on the basis it is not a proper request for particulars.

3. John Holland says the response by the State 'is an exercise in obfuscation' and that it is in the same category as the response to request 3.  I agree with one aspect of this submission – that the State's response is similar to the response to request 3.  By its defence, the State puts in issue the claim by John Holland that it had completed and submitted the detailed design for these works.  As presently pleaded, the State traverses the claim by John Holland but does not plead a positive case of non-compliance with the Project Brief in answer to the claim.  Without amendment, the State cannot run any positive case in response to John Holland's allegations.  If the State intends to contend at trial that the drawings submitted by John Holland for Level 3, East Block and Centre Block did not comply with the Project Brief, this must be specifically pleaded and particulars of the non-compliance must be provided.  If the State amends its pleading to raise any instances of non-compliance with the Project Brief without provision of appropriate particulars, the matter can be revisited at that stage. 

4. For these reasons, I decline to order the State to provide the further particulars requested in request 4.

Request 49

1. Request 49 seeks particulars of [278(i)(i)(A)-(C)] of the defence, which responds to [278] of the statement of claim.  This paragraph refers to a notice given by the State on 24 August 2016 which contained directions by the State to remove certain matters from John Holland's scope of works. 

2. John Holland has sought particulars of the spatial allowance removed from the scope of works, the terms of the Contract relied upon and the precise facilities, works or elements that John Holland was required to incorporate in the fit-out.  In response, the State says it is compiling the information required to provide a response and 'will do so prior to trial'. 

3. In its submissions in response to the application, the State agreed to provide these particulars by 24 August 2021.  At the time of publication of these reasons, these particulars have not been filed.  Before making an order for these to be filed, I will hear from the parties as to the appropriate timing.

Requests 92 and 93

1. Request 92 seeks particulars of [783(d)] of the counterclaim and request 93 seeks particulars of [794] of the counterclaim, both concerning the cryogenic store at PCH.  In [783], the State contends that under the terms of the Contract, John Holland was obliged to design wet laboratories which included centralised infrastructure including a cryogenic storage facility ([783(a)]), design medical gas services to be of a high standard and quality ([783(b)]) and comply with the codes and standards set out in the Technical Brief ([783(c)]).  The State then pleads that John Holland was obliged to:

   (d)meet the temperature control requirements and provide details of the process and operational flows for staff decanting small quantities of liquid nitrogen from the cryogenic store to the wet laboratories (as a result of paragraphs 783(a), 783(b), and or alternatively 783(c) above).

2. The State acknowledges it is required to provide some of the particulars requested by John Holland (as to the temperature control requirements and the process and operational flows) at request 92 and the particulars requested in request 93 and says it will do so prior to trial. 

3. In relation to these particulars, I consider these are likely to impact on the expert evidence filed by John Holland.  For that reason, the State should provide answers to the particulars well prior to the time for filing of expert evidence.  At the hearing, the parties agreed to confer on the timing of these answers.[38]  My preliminary view is that these particulars should be provided by no later than the end of November 2021 but I will hear from the parties prior to making any orders.

   [38] ts 356.

4. The State objects to answering request 92(c), which seeks particulars of the basis on which the State asserts John Holland was required to meet these obligations, on the basis it is a request for submissions and not particulars.  I do not accept this contention.  It is not readily apparent how the obligation in [783(d)], which is a specific obligation, arises from the general obligations pleaded in [783(a)] to [783(c)].  In my view, these particulars are required so that John Holland understands the case it has to meet at trial and has a fair opportunity to meet it.

5. For these reasons, I consider the State should be required to provide an answer in response to request 92(c).

Requests 123 and 124

1. These requests seek particulars of [995] and [996] of the counterclaim, which concern the provision of an integrated extra low voltage system (IELVS).

2. The State contends that John Holland was required to provide a functioning IELVS ([993]), which was to be integrated on site to provide a set of 'consistent operator interfaces' ([994]) and failed to do so ([995]).  As a further and alternative plea, the State says the IELVS was defective ([996]).  Particulars are provided of [995] and [996] by reference to a notice given by the State to John Holland on 23 September 2019.  It is apparent from the terms of this notice that John Holland sought particulars of the defect, which the State refused to provide on the basis the defects were widespread.  The notice attached a schedule which was said to be a 'non-exhaustive list' of the issues identified as at September 2019.

3. In request 123, John Holland requested particulars of the specific deficiencies relied upon in [995] and in request 124, the specific deficiencies relied upon in [996].  The State objected to the provision of particulars on the basis John Holland misunderstood the State's case and the request was a request for evidence and not particulars.  Without prejudice to this objection, the State provided some further particulars by reference to a number of documents. 

4. At the hearing, I was provided with a folder of documents containing copies of these documents.  On my review of the documents, it is not immediately apparent what specific matters the State relies on.  By way of example, the State relies on the items in the spreadsheet of deficiencies dated 5 March 2019 with a 'SP-Classification' of 'Defect' and which were not recorded as 'Resolved' in the column headed 'Action'.  In reviewing this document, I have assumed the 'SP-Classification' is the column marked 'Impact'.  In the column marked 'Action', there are a number of alternatives.  These alternatives include characterisations of issues as 'minor/non-disruptive', 'medium/minor disruption to UI availability' and 'major/disruptive'.  It is not clear whether all of these matters remain in issue or were resolved during 'DLP deployment' and whether each of these matters (including, in particular, the minor/non-disruptive items) is relied upon by the State.

5. As indicated at the hearing, my view is that the State should provide clear and concise particulars of what its case is in relation to the defects (which may refer to documents) rather than providing particulars by reference to documents.  I consider this is required so that John Holland has notice of the case it is required to meet on the IELVS.  Senior counsel for the State accepted the State could provide particulars in this format.[39]

   [39] ts 365.

6. For these reasons, I consider the State should be required to provide answers to requests 123 and 124.  I will hear from the parties as to the timing of the provision of these answers before making formal orders. 

State's application for further and better particulars

1. The State made 49 separate requests of John Holland's statement of claim, to which John Holland has responded.[40]  The State accepts that sufficient particulars have been provided in respect of eight requests (requests 11, 12, 13, 16, 42, 45, 47 and 49).

   [40] Defendant's replies to plaintiff's response to the defendant's request for further and better particulars of the further amended statement of claim filed 15 July 2021.

2. While the State's primary submission, as noted at [5] of these reasons, was that neither party should be ordered to provide answers to the requests for particulars, in the event the court ordered the State to file further particulars, as it has done, it sought similar orders in respect of John Holland's pleading.

3. John Holland contended that the State's submission 'did not serve the same forensic purpose' as its application.[41]  Broadly speaking, the State's remaining requests fall into three categories:

   (a)requests for particulars of quantum (requests 1, 3, 5, 7, 9,
   14 - 17, 19 - 40, 43, 44 and 48); and

   (b)requests for particulars as to the contractual basis on which its costs claims within its claims for extensions of time are made (requests 2, 4, 6, 8 and 10);[42] 

   (c)miscellaneous requests (requests 18, 41 and 46).

   [41] John Holland's submissions filed 23 July 2021 [4].

   [42] John Holland's submissions filed 23 July 2021 [5].

4. In relation to quantum, John Holland submitted that these matters should not be the subject of particulars but should be the subject of a common data set.[43]  John Holland proposes that:

   (a)it provide the State with a hyperlinked spreadsheet of all documents it is providing to its quantum expert together with a schedule of the rates and units applicable to that claim and the source documents from which these are derived;

   (b)the common data sets be provided from August 2021 until March 2022.

   [43]John Holland's submissions filed 23 July 2021 [33].

5. This proposal is based, at least in part, on the assumption that John Holland's proposal for the hearing is adopted.  John Holland proposes that the trial dates that have been reserved from October 2022 be used for determination of the claims in chapters 2 to 4 of the statement of claim and that the remaining claims in chapters 5 to 8 be dealt with at a separate hearing.  For this reason, John Holland proposes that provision of the documents relevant to chapters 2 to 4 of the statement of claim be by 30 September 2021, well in advance of the exchange of expert evidence.[44]

   [44] John Holland's submissions filed 23 July 2021 [35].

6. The State rejected John Holland's proposal.[45]

Particulars of quantum

[45] ts 377 – 381.

1. At the hearing before me, I was provided with an example of the proposed data sets in relation to the mortuary bay redesign (request 31) which concerns John Holland’s pleading at [444] of the statement of claim.  At [444], John Holland pleads that in breach of the Contract, the State failed to adjust the Contract Sum in the amount of not less than $340,018.  John Holland says that it suffered a loss of this amount together with interest.  The particulars to this paragraph state that further particulars will be provided prior to trial.

2. The State sought further particulars of two matters.  First, the applicable rates and hours or other units to which these rates were applied to calculate this value.  Second, particulars in relation to any claim for preliminaries.  In answer to the first request, John Holland referred to the table at [443.1] of the particulars of the statement of claim and otherwise objected to the request on the basis that it was unnecessary and burdensome, it would be answered by the provision of the common data set and that further particulars would be provided after the exchange of lay and expert evidence.  In answer to the second request, John Holland explained the basis upon which this was calculated.  The State does not seek further particulars of the second request at this stage.

3. Paragraph [443.1] of the particulars of the statement of claim says that the reasonable value of the effect of the variation comprises the following amounts:

Item of Work	Value of the effect of the Variation
Partitions, painting, skirting and concrete works	$75,507
Sanitary Ware works	$2,427
Joinery works	$32,307
Mechanical Services	$145,179
Convergent Technologies services	$24,688
Construction Design Services	$6,414
Preliminaries	Not less than $38,543
MC Margin @ 4.6%	Not less than $14,953
Interest on the value of the effect of the Variation	Further particulars to be provided prior to trial
TOTAL	Not less than $340,018

1. The data set provided by John Holland included documents within the following categories (and sub-categories):

   (a)General (Claim and assessment);

   (b)Builder's work (Blockwork, Ceilings and partitions, Floor and wall coverings, Doors and hardware, Painting, Sanitary ware supply, Joinery);

   (c)Services (Mechanical services, Medical gas, Electrical Services, Hydraulic Services, Convergent technologies;

   (d)Design ('n/a').

2. John Holland also provided a table summarising the direct costs together with a spreadsheet.  The table calculated the additional costs as $370,642 comprising the following:

Additional building trades costs	$110,241
Additional service trades costs	$201,936
Additional design services costs	-
$312,177
Additional preliminaries	$41,994
Total costs	$354,170
Variation margin	$16,292
Total claim	$370,462

1. The spreadsheet is a 3 page excel spreadsheet containing the following columns: ID, Cost Code, Trade Package, Supplier subcontractor, Activity, Baseline quantity, As installed quantity, Change quantity, Unit, Rate, John Holland's 'reasonable assessment of costs', Basis of quantity, and Source of rate.

2. Senior counsel for the State submitted there were a number of issues with John Holland's proposal and the information provided.[46]  First, the quantum of documents the State was likely to receive in the common data sets.  In this regard, the State received 220 documents in relation to this claim, which was one of the more straightforward in the proceedings, comprising a significant amount of data (measured in terabytes or megabytes).  Second, the description of categories in the table at [206] of these reasons and the accompanying spreadsheet did not match the description of categories (or amounts) in the table at [443.1] of the particulars of the statement of claim (as set out in [204] above).  As a consequence, the State had to undertake a detailed analysis to try to reconcile how these amounts had been calculated and the difference between the amount in the particulars (of not less than $340,018) and the amount in the table (of $370,462).  While the State believed they had analysed this correctly, it was a matter of guesswork which had not been confirmed by John Holland.  Third, it was not clear how a number of matters had been calculated including how the baseline quantity had been derived, the calculation of the 'as installed quantity' or, in all instances, the rates.  Many of the items described the basis of the quantity as 'internal assessment' without providing any further details as to the basis of this assessment.

   [46] ts 238 - 244.

3. Senior counsel for John Holland explained at the hearing that the baseline quantity was derived from the design, which had been varied, and the 'as installed quantity' from the 'as built drawings'.[47] 

   [47] ts 343.

4. In my view, there are two primary issues with the proposal advanced by John Holland for the provision of particulars through a 'common data set'.  First, different descriptors have been used in the particulars as compared to the summary table to describe the same work.  If information is to be provided in this form, it is critical that the same descriptors are used so that a comparison of the information can be undertaken easily and with confidence that both parties are referring to the same matters.  Second, it has to be clear how and from what source documents the following items are calculated: the baseline quantity, the rates and the 'as installed' quantity.  Without this information, the State will have to wait until it receives John Holland's expert reports before it can properly brief its quantum expert.  If this does not occur until February 2022, it is likely that the proposed trial dates will be jeopardised.

1. If these matters are addressed, the issue identified by the State as to the quantum of data and/or documents it is likely to receive is less significant.  While I accept that it is almost certain that significant numbers and quantities of data will be provided by John Holland to the State, the State is more likely to be able undertake a targeted review of the documents if it understands the basis for John Holland's quantification of its claim.

2. For these reasons, I consider that the current proposal by John Holland to address these requests for particulars is insufficient.  However, I consider that the most efficient and cost-effective manner in which these matters can be addressed is for the provision of a document or documents which sets out the amounts claimed and the basis for the calculation.  This document or documents must use the same terminology as contained in the particulars of the statement of claim.  This should be supported by a document or spreadsheet which includes an itemisation of each of the constituent amounts.  This must include information as to how and from what documents the following have been calculated: the baseline quantities, the rates and the 'as installed' quantity, as well as the source documents from which the information has been obtained.  This information needs to be provided to the State well prior to the service of expert evidence so that the State can brief its experts.

3. Before making any formal orders on the provision of this information, I will hear from the parties on two matters: the timing of delivery of this information and what form this information should take.

Particulars of the contractual basis on which the costs claims are made

1. Request 2 concerns [104(d)] of the statement of claim.  This paragraph sets out John Holland's claim in respect of what it contends is effect of the variation of the Contract arising from the Variation Orders set out in [100] of the statement of claim, concerning the design of the SSSU, PIMS and executive offices.  Relevantly, this includes at [104(d)] a claim for an adjustment to the Contract Sum to take into account the reasonable value of 193 days of critical delay.  In its particulars of the statement of claim, John Holland provides particulars of the adjustments it contends should be made to the Contract Sum for the reasonable value of the critical delay.

2. The State requested particulars of three aspects of this pleading.  First, the contractual or other basis upon which the claim is made.  Second, to the extent the claim is for costs incurred, details of these costs.  Third, the term of the Contract that entitles John Holland to a margin.

3. In response, John Holland says the claim is made under cl 24.6(c) of the Contract and not under cl 22.6(a) or on any other basis.  As a result, the second request is not relevant.  In relation to the third request, John Holland relies on cl 24.6(c) and cl 4 of Sch 2 of the Contract.

4. In their written submissions, the State submits that this answer is inconsistent with other parts of the statement of claim which suggest the claim is made under cl 22.  The State sought orders for John Holland to clarify its position.[48]  At the hearing before me, the State did not expand on its position or address the matters raised by John Holland in their written submissions filed in response to the State's application.

   [48] State's submission filed 15 July 2021 [16].

5. John Holland, in its written submissions, denies there is any inconsistency in its pleading.[49]  John Holland says that the relevant paragraphs of the statement of claim refer to cl 24.6 and that it is seeking an adjustment to the Contract Sum under cl 24.6 to take account of the costs associated with delay.[50]

   [49] John Holland's submissions filed 23 July 2021 [27].

   [50] John Holland's submissions filed 23 July 2021 [25].

6. At [100] of the statement of claim, John Holland pleads that the Variation Orders referred to in that paragraph were given pursuant to the term pleaded in [92(n)] of the statement of claim.  This paragraph ([92(n)]) sets out the ability of the State to require John Holland to carry out or give effect to a variation by issuing a notice under cl 24.1(a) of the Contract.  That is, this paragraph does not refer to or rely on cl 22 of the Contract.

7. John Holland's claims in relation to the SSSU, PIMS and executive offices refer to both cl 22 (see, for example, [105] of the statement of claim) and cl 24 of the Contract (see, for example, [114] of the statement of claim).  As such, it is understandable that the State sought clarification as to the basis on which the claim in [104(d)] was made.  This has now been clarified.  In its answers to particulars, John Holland confirmed the claim in [104(d)] of the statement of claim is made under cl 24.6 of the Contract and not cl 22.  The claims made by John Holland will be determined at trial on the basis of its pleaded case. 

8. On this basis, I consider that John Holland's claim is sufficiently clear to put the State on notice of the claim it has to meet at trial.  I do not consider John Holland should be required to provide further particulars in answer to request 2.

9. Similar considerations arise in respect of:

   (a)request 4 - which concerns [136(c)] of the statement of claim (the re-design of the OPCU);

   (b)request 6 - which concerns [157(c)] of the statement of claim (the inclusion in the design of an automated pharmacy);

   (c)request 8 - which concerns [172(c)] of the statement of claim (the Building ESB); and

   (d)request 10 - which concerns [190(c)] of the statement of claim (the ICT systems). 

10. John Holland has clarified that in relation to each of these matters, its claim is advanced under cl 24.6 of the Contract and not cl 22.  The claims will be determined at trial on the basis of the pleaded case. 

11. On this basis, I consider that John Holland's claim is sufficiently clear to put the State on notice of the claim it has to meet at trial.  I do not consider John Holland should be required to provide further particulars in answer to requests 4, 6, 8, and 10.

Miscellaneous requests

1. There are three requests (18, 41 and 46) which do not fall into these two broad categories.  In their submissions in support of the application, the State relied on its 'General Reply' (namely that neither party should be ordered to provide particulars) but otherwise did not specifically address these requests in written or oral submissions.  John Holland also did not address these requests specifically in their submissions on the application.

2. For completeness, I deal with each of these requests briefly.

3. Request 18 seeks particulars of [307] of the statement of claim concerning the CSSD.  This contends that as a result of the additional works, John Holland's planned method and sequence of construction was changed and its productivity was reduced.  John Holland has filed particulars, which at [307.2], set out the basis for this contention.

4. The State requested particulars of the planned method and sequence of production prior to notification of the Variation, the manner in which the planned method and sequence was changed, how productivity was said to have been reduced, and how these were caused by the additional works.  In response, John Holland identified the program that is says comprises the planned method and sequence prior to notification of the variation but otherwise refers to [307.2] of its particulars.

5. In my view, the particulars that have been provided by John Holland sufficiently set out the basis for its claim and provide the State with notice of the claim it has to meet at trial.  I accept that the State does not yet have the detail as to the basis on which this claim is advanced by John Holland.  However, this will occur through the provision of lay evidence and expert evidence.  At this stage, I do not consider that further particulars are required and refuse the State's application.

6. Request 41 seeks particulars of [564] of the statement of claim concerning the simulation suites.  This contends that by no later than 16 October 2014, John Holland had completed certain work.  The State requested particulars of the works that had been done.  In answer to the request, John Holland referred to Revision E (Mitigation) Overall Delivery Program with a status date of 13 October 2014 with activities with the status as 'complete'.

7. Without the benefit of being provided with the document referred to by John Holland, it is difficult to form any particular view as to whether this response sufficiently identifies these items.  However, without any specific submissions being made by either party as to why this response is inadequate, I consider the response has sufficiently identified the matters on which John Holland relies and that further particulars should not be ordered.

8. Request 46 seeks particulars of [645] of the statement of claim concerning the alternative design of the block link bridge.  In this paragraph, John Holland contends that it suffered loss and damage from the rejection by the State of its alternative design.  In its particulars of the statement of claim, John Holland said that further particulars would be provided following lay and expert evidence. 

9. The State sought particulars of the basis for the claim for additional costs and to the extent to which it included Preliminaries, the basis for this.  In answer, John Holland says that the claim is for the difference between the construction of the alternative design submitted by John Holland and the cost of the bridge constructed by John Holland, and further particulars will be provided by way of expert evidence. 

10. Without any specific submissions being made by either party as to why this response is inadequate, I consider the response has sufficiently identified the basis on which John Holland advances its claim and that further particulars should not be ordered at this stage.  If, after the deliver of expert evidence, further particulars are not provided, I will consider a renewed application at that stage.

Conclusion

1. For these reasons, I consider that each of the applications should be allowed in part.  I will hear from the parties as to the orders that should be made to give effect to these reasons and as to the costs of the application.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.

ME

Associate to the Honourable Justice Hill

14 SEPTEMBER 2021