John Holland Pty Ltd v The Minister for Works [No 2] - [2022] WASC 10

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   JOHN HOLLAND PTY LTD -v- THE MINISTER FOR WORKS [No 2] [2022] WASC 10
CORAM:   HILL J
HEARD:   22 & 23 SEPTEMBER 2021; WRITTEN SUBMISSIONS 28 SEPTEMBER, 1 OCTOBER & 5 OCTOBER 2021
DELIVERED          :   20 JANUARY 2022
FILE NO/S:   CIV 3025 of 2019
BETWEEN:   JOHN HOLLAND PTY LTD
Plaintiff

AND

THE MINISTER FOR WORKS
First 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 - Discovery - Whether categories of documents required for expert evidence - Whether proposed categories consistent with O 1 r 4A and r 4B of the Rules of the Supreme Court 1971 (WA) - Whether categories relate to a matter in issue on the pleadings - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA) O 1 r 4A, O1 r 4B, O 26

Result:

Application allowed in part

Category: B

Representation:

Original Action

Counsel:

Plaintiff	:	Mr D Miller SC and Mr T J Porter
First Defendant	:	Mr M G Roberts QC, Ms J K Taylor SC, Ms K A T Pedersen and Mr L Connolly
Third Party	:	No appearance

Solicitors:

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

Counterclaim

Counsel:

Plaintiff by Counterclaim	:	Mr M G Roberts QC, Ms J K Taylor SC, Ms K A T Pedersen and Mr L Connolly
First Defendant by Counterclaim	:	Mr D Miller SC and Mr T J Porter
Second Defendant by Counterclaim	:	No appearance

Solicitors:

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

Cases referred to in decision:

Built Environs WA Pty Ltd v Perth Airport Pty Ltd [No 5] [2021] WASC 237
Roe v the State of Western Australia [2013] WASC 130
Threat Protect Group Pty Ltd v James McCrea as trustee for the J&P Trust [2021] WASC 169

HILL J:

In this case, subject to one exception, the parties have agreed that prior to the filing of the parties' lay and expert witness statements, orders for discovery should not be made. The exception was for categories of documents that are required for the preparation of expert reports.
Both John Holland Pty Ltd (John Holland) and the Minister for Works (State) have exchanged lists of the categories of documents they seek from the other. The State agreed to provide most of the categories sought by John Holland. The remaining minor issues in respect of these categories were addressed at the hearing before me on 22 and 23 September 2021.
The issue that remained between the parties was in relation to the categories of discovery sought by the State. In its amended application dated 10 September 2021, which was further amended during the course of the hearing, the State sought discovery of three categories of documents, namely:
(a)documents concerning adjudication claims made by various subcontractors as well as documents in relation to the settlement by John Holland of claims of various subcontractors (requests 6A1.1 to 6A2.10);
(b)documents said to be relevant to the valuation of John Holland's claims (requests 7 to 43(f)); and
(c)documents in relation to the laminate defect which is the subject of the State’s counterclaim (request 48(b)).
In support of its application for discovery, the State relied on an affidavit of Ms Di Cicco filed 10 September 2021. John Holland filed an affidavit of Ms Young on 17 September 2021 in opposition to the application.
Following a proposal by John Holland to produce certain documents within the second and third categories, these categories were not pressed by the State at the hearing. The State accepted it would be more appropriate to review the documents proposed to be produced by John Holland and renew any requests for discovery it contended were still required.
John Holland also proposed that certain documents be produced in relation to category one, but only after the State had filed its critical path analysis. Due to the delay in finalising these reasons, I note that this has now occurred. However, given the application was argued without reference to the critical path analysis, I have not had regard to this document or the critical path analysis filed on behalf of John Holland.
Given the proposal by John Holland, the only matter that requires determination is which of the parties’ proposals as to category one should be ordered. For the reasons that follow, it is my view that, subject to amendments as to the relevant time periods in the categories sought, orders should be made broadly in terms of the State’s minute of orders dated 23 September 2021.

Legal principles

The relevant principles concerning discovery in the commercial and managed cases list are well known.
They were summarised by Martin CJ in Roe v the State of Western Australia in the following terms:[1]
[I]t is now established that general discovery is no longer regarded as a right. Rather, the extent of the obligation to give discovery and the entitlement to discovery will be fashioned having regard to the general principles that are articulated in the Rules of the Supreme Court 1971 (WA) and in particular the principles enunciated in O 1 r 4A and r 4B. Those principles include and expressly embody the notion of proportionality, which requires a court, before ordering any interlocutory process, to assess whether the forensic benefit to be derived by that process is proportional to the cost and delay which will flow from the undertaking of the process, having regard to the value, importance and complexity of the subject matter in dispute and the financial position of the parties.
In the context of discovery, this means that when issues arise with respect to the breadth of the discovery to be ordered, the ambit of discovery will be determined taking into account the cost and delay associated with the provision of discovery over a broader ambit, as compared to the forensic benefit likely to be derived from the provision of discovery over that broader ambit. Unless the cost and delay involved in the provision of that discovery is proportionate to the forensic benefit likely to be derived from a broader ambit of discovery, and to the value and importance or complexity of the subject matter of the proceedings, a narrower ambit of discovery will be ordered.
The only proposition I would add to the principles enunciated in the defendant's written submissions is the proposition that at least in cases such as this, when general discovery has not been sought or ordered, adjectival or indirect relevance of itself will no longer determine whether or not a document will be ordered to be discovered, and in particular the approach to general discovery enunciated in cases like Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co will no longer guide the court in relation to issues with respect to informal discovery.
Rather, those issues will be determined by the balancing of the likely forensic benefit to be obtained against the risk of cost and delay in the manner that I have described, viewed in the context of the value, importance and complexity of the subject matter of the proceedings. In that context, the forensic significance of the issue in respect of which discovery is sought and the relevance of the documents sought to that issue, in a qualitative sense, will be pertinent to the proper disposition of any application for discovery. (citations omitted)
[1] Roe v the State of Western Australia [2013] WASC 130 [10] - [13].
The court has the power to order discovery of relevant documents. In exercising its discretion whether to order discovery, the court will take into account 'pragmatic considerations of reasonable proportionality in relation to inhibiting unduly oppressive discovery burdens, especially in construction cases … where the task can be both enormous and confronting'.[2]
[2] Built Environs WA Pty Ltd v Perth Airport Pty Ltd [No 5] [2021] WASC 237 [13].
This requires the court to balance the likely forensic benefit to be obtained from the documents against the risk of cost and delay. Generally, discovery will not be ordered unless the cost and delay involved in the provision of discovery is proportionate to the forensic benefit likely to be obtained. Ultimately, the test is whether discovery of the categories sought is necessary to fairly dispose of the proceedings. [3]
[3] Threat Protect Group Pty Ltd v James McCrea as trustee for the J&P Trust [2021] WASC 169 [19].

Parties' submissions

Category one: adjudication and settlement documents (Requests 6A1.1 to 6A2.10)

The State contends it requires these documents to provide to its delay expert.
The State says these documents are relevant to three pleaded issues. First, as part of its claim for delay and disruption, John Holland says it was required to 'establish and enforce contractual entitlements' and 'administer claims from its technology subcontractor'.[4] Second, John Holland's claim includes an amount for $10.5 million for additional amounts paid to subcontractors. Third, in the State's defence, the State pleads there were concurrent delays for the periods of delay claimed by John Holland. In support of this pleading, the State has referred to and relies upon deeds of settlement entered into between John Holland and various of its subcontractors.[5] The State says that while it is aware there were disputes between John Holland and various of its subcontractors which caused or were a cause of delay in the construction of the Perth Children's Hospital (PCH), it does not have the documents which evidence these matters.
[4] Further amended statement of claim [171]; Particulars of further amended statement of claim [171.3].
[5] State's amended response to requests for further and better particulars [2].
At the hearing before me, senior counsel for the State conceded the adjudication applications and responses were not, of themselves, relevant to the pleaded issues. However, the State pressed for discovery of this category on the basis that they were an easily identifiable collection of the underlying documents which were relevant to the pleaded issues. Senior counsel submitted this approach was consistent with the case management obligations in O 1 r 4A of the Rules, namely it was efficient, cost effective and not oppressive.
John Holland denies the documents sought by the State are relevant to the pleaded issues. While John Holland accepts there may be some subcontractor documents which are relevant to the issues identified by the State, these documents do not include the submissions in an adjudication or any subsequent determination; these documents are simply one party's opinion on the payment dispute and a determination of an interim payment dispute.[6] John Holland contended the proposition inherent in the State's application was that ‘any and all disputation’ between John Holland and its subcontractors was relevant and said the flaw in the categories proposed by the State was that they focussed on a form of dispute resolution rather than the pleaded issues.[7]
[6] ts 479.
[7] ts 480.
John Holland submitted it was apparent from the broad categories sought by the State that the State was trying to determine whether there were any concurrent delays as opposed to obtaining documents relevant to the concurrent delays which had been identified and particularised. As a result, John Holland contended the State's requests constituted fishing.
John Holland also submitted that, apart from category 6A1.1, the categories sought by the State were extremely broad and, as a consequence, oppressive. Counsel for John Holland emphasised the categories were drafted by reference to deeds of settlement and not the pleaded issues. In addition, the requests were unconfined 'temporally or by subject matter'[8] and, as a consequence, were onerous and disproportionate.
[8] ts 494.
In support of the claim that these categories were oppressive, counsel for John Holland referred to the affidavit of Ms Young. Ms Young's evidence is that, based on some preliminary searches of John Holland's electronic database of documents, it could take between 281 and 449 days to identify and review documents falling within the categories proposed by the State at a cost of between approximately $470,000 and $750,000. John Holland contended that, even in a case where more than $180 million in damages was sought, this was oppressive.
In relation to the affidavit of Ms Young, while the State accepted there would be work involved in identifying the documents sought, the State disputed these time estimates and costs. The State contended that these results were not unexpected given the extremely broad search terms used.
Both prior to and during the course of the hearing, the categories of documents sought by the State were narrowed and redrafted. The State sought, in respect of several subcontractors, production of payment claims, payment schedules, written requests for extensions of time and any responses, the extension of time register and the variation register. In respect of one of the subcontractors, Schneider Electric Australia Holdings Pty Ltd, several additional documents were sought which are referred to in schedules to a specific deed.
To reflect the court's exchanges with counsel during the course of the hearing on 22 September 2021, on 23 September 2021, John Holland proposed alternate categories of discovery. John Holland's proposal was that if the critical path analysis filed by the State identified that the works of a subcontractor critically delayed a milestone during one of the periods of delay the subject of John Holland's claim, John Holland would produce any notice of delay or claim for an extension of time and any notices or claims seeking payment of liquidated damages.
Given the late exchange of refined categories of documents, the parties were given the opportunity to file additional written submissions.
In essence, John Holland denied that the categories of documents sought by the State were relevant to the issues in the proceedings and claimed that the State's request 'casts the net too broadly'[9] and would impede the orderly preparation of the case. The State disputed these propositions and maintained its amended categories would 'provide timely discovery of relevant documents and permit the fair and orderly preparation of the case for trial'.[10]

Category two: documents relating to particulars of quantum (requests 7 to 43(f))

[9] John Holland's submissions dated 28 September 2021 [4].

[10] State's further submissions dated 1 October 2021 [6].

The State seeks documents which it contends are required for its valuation expert to assess the valuation of the variations claimed in ch 5 to ch 8 of John Holland's claim. By way of example, request 7(a) seeks employment contracts, subcontractor or labour hire agreements, secondment or consultancy agreements, time sheets, subcontractor invoices and payment receipts for the distributed antenna system.
At the hearing, the State maintained the classes of documents it seeks are relevant and should be provided by John Holland. However, given John Holland's proposal to provide data sets in relation to each of these chapters, which had not occurred as at the date of the hearing, senior counsel for the State did not press these categories. This was on the basis that the State would review the documents provided by John Holland and, if required, would renew requests for further documents as and when required.[11]

Category three: laminate defect in counterclaim (request 48(b))

[11] ts 497.

The State sought discovery of records concerning the timing of the delivery of joinery to PCH, as well as details as to where the joinery was stored and records of the temperature and humidity levels in these locations. The State says these documents are relevant to the cause of the defects with the joinery.
John Holland agreed to provide the State with a copy of the site diary, following which more targeted requests for documents could be made by the State.[12]
[12] ts 499 - 500.
As a consequence, the State did not press this category on the basis that it would review the document or documents produced by John Holland and then renew any request for further documents.[13]
[13] ts 499 - 500.

Disposition

In considering the State's application for discovery, it is necessary to assess it against the background of the proceedings, including the nature and amount of the claim. John Holland seeks more than $180 million in damages and the State by way of counterclaim seeks damages in excess of $18 million. The parties have already agreed an informal discovery process whereby very significant numbers of documents are being produced electronically. At present, the parties estimate the trial in these proceedings will take approximately 16 weeks and will be listed for hearing in the first half of 2023. These matters are relevant to the exercise of discretion to order categories of discovery, particularly where it is contended the categories sought are onerous or oppressive.
It is not in dispute that the construction of PCH was not completed within the required timeframe under the contract entered into between the parties in December 2012 (Contract). On the pleadings, the dispute between the parties is what caused this delay, who is responsible for this and how the delay impacts the claims by John Holland and the counterclaim by the State.
Clause 22 of the Contract sets out the obligations of the parties in relation to claims for liquidated damages and extensions of time. Clause 22.2(a) required John Holland to give the State a delay notice when John Holland considered 'it ha[d] been or was likely to be delayed' in achieving Practical Completion or an LD Milestone. The delay notice was required to include particulars of the matters referred in cl 22.2(a) of the Contract including details of the nature, cause and likely extent of the delay and the activities impacted by the delay, including all necessary supporting documentation.
Under cl 22.3, John Holland is only entitled to an extension of time if each of the requirements set out in cl 22.3(a) are satisfied. This includes the requirement that the delay is caused by a Delay Event (as defined in the Contract), which includes delay caused by the State or a variation order. Where the delay is also caused by an event that is not a Delay Event, John Holland is not entitled to an extension of time (cl 22.3(b)).
It is clear from the terms of the Contract that the focus for the delay experts will be on the periods of delay claimed by John Holland and what caused any delay in these periods.
On the pleadings as they currently stand, as summarised relevantly at [63] to [90] of my earlier decision, the State claims that John Holland bears the onus of proving the existence of each alleged critical delay. The allegation that there were critical delays is denied. In addition, the State contends, by reference to various deeds of settlement and release between John Holland and some of its subcontractors, there were concurrent delays.
In assessing whether John Holland has been delayed in its completion of PCH, it will be necessary for the experts to identify the critical path in the construction of PCH to determine whether the matters pleaded by John Holland caused a delay to the completion of the section or the whole of the construction of PCH. I accept, as submitted by senior counsel for John Holland, there are two relevant questions for the experts. First, whether the activities the subject of the claims by John Holland were on the critical path. If not, any delay to these activities will not have caused a delay to practical completion and John Holland will not be entitled to an extension of time. This question requires the expert to examine the sequence of activities on the entire project to determine the critical path. Second, whether there was more than one activity or cause of the delay claimed by John Holland. This question requires the expert to consider the claimed periods of delay to determine whether there were any concurrent causes of the delay in each of these periods.[14]
[14] John Holland's submissions dated 23 September 2021 [7]. See also Hudson's Building and Engineering Contracts (14^th ed, 2020) [6-051] - [6-056].

The expert evidence to be adduced by each of the parties analysing the delay in the construction of the PCH will form an important part of the court's assessment of the parties' claims, particularly as to the causes and duration of periods of critical delay to the works. However, as was noted by the learned authors of Keating on Construction Contracts at [8-064]:[15]
It is important to emphasise that delay analysis and the expert programming evidence associated with it is merely one tool to assist the fact finding tribunal. Delay analysis should be based as far as possible on contemporaneous evidence of what actually happened on site during the progress of the works and is ultimately only as reliable or accurate as the data upon which it is based.
[15] Keating on Construction Contracts (11^th ed, 2021) [8-064].
I accept that contemporaneous evidence as to what occurred at PCH during the progress of the works is relevant to the issues in this proceeding and is required by the State's expert to complete their report in so far as the State does not already have this information in its possession. In my view, these contemporaneous documents are relevant to a critical issue in these proceedings, namely the cause and duration of any critical delays to the works at PCH.
As a consequence of the delay which it claims was caused by the State, John Holland seeks to recover amounts which include additional payments it says it was required to pay to subcontractors.[16] The categories of documents sought by the State include payment claims by various subcontractors which the State claims is relevant to the briefing of its quantum expert.
[16] See for example further amended particulars to statement of claim [172].
In relation to the categories of documents sought by the State, the evidence before the court is that during the construction of PCH, a number of John Holland's subcontractors made claims against John Holland and that John Holland did not accept these claims.[17] John Holland made claims against a number of its subcontractors. The claims by John Holland included allegations that the delay of the subcontractors in completing their work under the relevant subcontracts exposed John Holland to loss under its head contract with the State. These claims were, in turn, denied by the subcontractors. Settlement agreements were entered into by John Holland with various of its subcontractors which settled claims John Holland 'has or may have' against the relevant subcontractor for a number of matters, including in respect of 'any delay in or to the performance, or disruption to the progress of the Works'.[18]
[17] Affidavit of Triska Janelle Di Cicco filed 10 September 2021, 'TJD-3' Recital F; 'TJD-4' Recital C; 'TJD‑6' Recital C, 'TJD-7' Recital C.
[18] Affidavit of Triska Janelle Di Cicco filed 10 September 2021, 'TJD-3' definition of 'John Holland Settled Claims'; 'TJD-5' definition of 'John Holland Settled Claims'.
In its particulars to the amended defence and counterclaim, the State has referred specifically to deeds of settlement and release entered into with the following subcontractors: Schneider Electric Buildings Australia Pty Ltd, Nilsen (WA) Pty Ltd, Fredon Air Pty Ltd and Fredon Industries Pty Ltd, Christopher Contracting Pty Ltd ATF The Christopher Contracting Trust, Axbay Pty Ltd, Centrigrade Mechanical Contracting Pty Ltd, Jones Coulter Young Pty Ltd, Cox Architecture Pty Ltd, Billard Leece Partnership Pty Ltd and BCJH Alliance Pty Ltd, and Lawsons Commercial Flooring Pty Ltd.
I accept that contemporaneous documents that evidence:
(a)any delay by a subcontractor in its performance of its obligations under the subcontract, the reasons for that delay and whether this ultimately was the cause or a cause of delay in the performance of the contract between John Holland and the State; and
(b)an assertion by John Holland that a subcontractor's delay in performance of its obligations caused it delay in its performance of its contract with the State,
are relevant to the question of what happened on site during the progress of the works. I consider these documents are relevant to the extent of delays that occurred on site, and may be relevant to an assessment as to who was responsible for the delays which are issues in these proceedings.
For these reasons, I accept that documents between the various subcontractors and John Holland which evidence these matters are relevant to the preparation of the State's expert evidence and should be discovered by John Holland. In my view, production of these documents is necessary to fairly dispose of the proceedings.
I also accept that documents which evidence the additional payments made by John Holland to any subcontractor in relation to the claims in ch 2 of the further amended statement of claim are likely to be relevant for the briefing of any quantum expert and should be produced by John Holland. In my view, these documents are also necessary to fairly dispose of the issues in the proceedings.
The more critical issue is how documents in these categories can be identified, collated and produced in a cost-effective and efficient manner, consistent with the case management objectives in O 1 r 4A and O 1 r 4B of the Rules and the authorities referred to above. In this regard, I consider that a practical and pragmatic approach should be taken to identify the documents to be produced.
I accept that, save for the categories proposed by the State, there are two alternate options available. First, John Holland's proposal, which is that the State file its critical path analysis and John Holland produce only the notices of delay or claims for extension of time for those subcontracts which are identified as critically delaying a milestone under the Contract. Second, the court could order general discovery in relation to the contemporaneous evidence of what occurred on site. This alternative, quite properly, is not proposed by either of the parties. I accept that this option would not result in the prompt or efficient resolution of this dispute.
In relation to the categories proposed by John Holland, in my view, this proposal is too narrow and does not reflect the information disparity that exists between the parties.
I accept that the categories of documents proposed by the State (notwithstanding their amendment on several occasions both before and during the hearing) do not identify with precision the contemporaneous correspondence and other documents passing between John Holland and its subcontractors which constitute a record of what occurred on site at PCH. However, I accept the submission of senior counsel for the State that where these documents have been collated for the purpose of an adjudication claim, this is a cost effective and efficient way of producing relevant documents. In this regard, while I accept there is force in the submission of counsel for John Holland that the proposed categories focus on a form of dispute resolution rather than a pleaded issue, I consider that, broadly speaking, the categories proposed are a convenient manner of producing documents which are relevant to the pleaded issues.
I also consider that the amendments to the categories of documents sought by the State have significantly narrowed the documents which are required to be produced and that considerably more targeted search terms can now be utilised to identify these documents. In this regard, I do not consider that the general searches that are the subject of Ms Young's affidavit provide any significant assistance in assessing the likely time and cost involved in identifying and producing these documents. While I accept that these categories may require the production of a relatively large number of documents, I do not consider this to be disproportionate to the volume of documents being produced by John Holland to support its claim, the amount in issue between the parties or the timetable in this matter.
That said, I do not consider the categories in the amended terms proposed by the State are sufficiently narrow in respect of the date range over which the documents are sought. In its statement of claim, John Holland pleads that the period over which it was delayed commenced on 3 April 2014[19] and ends in April 2017.[20] There are periods within this timeframe that are not the subject of any claim for delay. However, most of these are periods of only two to three months, save for a seven month period between 29 September 2015 and 6 May 2016 and a four and a half month period between 12 August 2016 and 2 January 2017.
[19] Further amended statement of claim [112].
[20] Further amended statement of claim [218].
In my view, the categories should be limited to production of documents within a reasonable time period before these dates until the date of the relevant deed of settlement. This will enable an expert to assess the contemporaneous documents in the context of what was occurring on site at the time of the specific delay periods which are the subject of John Holland's claim.

Conclusion

For these reasons, I consider that the State's application for discovery should be allowed in part. In relation to the specific categories of documents sought, I propose to order John Holland to provide discovery of the categories in the attached 'Schedule A'.
I will hear from the parties on the question of the timing for production of documents as well as the costs of the application.

Schedule A

Request #	Request
6A1.1	For the period from 1 September 2015 to 31 December 2016, copies of all adjudication applications made by Schneider Electric Buildings Australia Pty Ltd (SEBA) to John Holland under the Construction Contracts Act 2004 (WA) (CCA), all responses to those adjudication applications under the CCA and any agreements recording settlements of those claims and applications except for the application dated 7 December 2015 in respect of SEBA's disputation of John Holland's Payment Schedule relating to SEBA's payment claim dated 25 September 2015.
6A1.3(a)	Between 1 January 2014 to October 2018 (inclusive), the following documents: (a) all SEBA Payment Claims (as defined in clause 1.1 of the subcontract between John Holland and SEBA dated 29 May 2013 (SEBA Subcontract) [JHG.0030.0000040]; see also clause 12.6); (b) all John Holland Payment Schedules (as defined in clause 12.7 of the SEBA Subcontract); (c) any written claims by SEBA for an extension of time pursuant to clause 10.6 of the SEBA Subcontract; (d) John Holland's responses to any claim for an extension of time; (e) any list recording claims by SEBA for an extension of time (John Holland's 'EOT Register'); (f) any list recording claims by SEBA for Variations (John Holland's 'Variation Register'); and (g) any notice or claim by John Holland seeking payment of liquidated damages in accordance with clause 13.6 of the SEBA Subcontract.
6A1.3(b)	(a) The documents listed in 'Part 3 - Subcontractor Notice of Delay Claims' in Annexure 3 to the SEBA Amendment Deed dated 21 January 2016. (b) The Dispute Notices listed in 'Part 4 - Subcontractor Dispute Notice Claims' in Annexure 3 to the SEBA Amendment Deed. (c) The documents listed in 'Part 5 - Subcontractor Requests for Direction and other correspondence' in Annexure 3 to the SEBA Amendment Deed.
6A2.2	The following documents, in relation to any adjudication application, made by John Holland or BCJH, pursuant to Part 3 of the Construction Contracts Act 2004 (WA) in respect of the BCJH Subcontract: (a) any adjudication application and supporting Documents; (b) any response to an adjudication application and supporting Documents; between 1 January 2014 to 30 June 2014, except for the following: (c) the application dated 21 November 2013 in respect of the payment dispute arising from BCJH's invoice submitted on 17 September 2013; (d) the application dated 23 January 2014 in respect of the payment dispute arising from BCJH's payment claim submitted on 13 December 2013.
6A2.3	Between 1 January 2014 to 13 May 2014, the following documents: (a) all NDY payment claims (as defined in clause 4.2 of the Consultant Services Agreement between John Holland and NDY dated 2011 (NDY Agreement) [JHG.0019.0000005]; (b) any notice by John Holland made in response to NDY's payment claims in accordance with clause 4.2.2 of the NDY Agreement; (c) any delay notices by NDY pursuant to clause 8.2 of the NDY Agreement; (d) John Holland's responses to any notice for an extension of time; (e) John Holland’s EOT Register; and (f) John Holland’s Variation Register.
6A2.4	Between 1 January 2014 to 3 March 2015, the following documents: (a) all BCJH payment claims (as defined in clause 4.2 of the Consultant Services Agreement between John Holland and BCJH dated 5 December 2011 (BCJH Agreement)); (b) any notice by John Holland made in response to BCJH's payment claims in accordance with clauses 4.2.1 or 4.2.2 of the BCJH Agreement; (c) any delay notices by BCJH pursuant to clause 8.2 of the BCJH Agreement; (d) John Holland's responses to any notice for an extension of time; (e) John Holland’s EOT Register; and (f) John Holland's Variation Register.
6A2.5	Between 31 March 2014 to 11 July 2016, the following documents: (a) all Lawsons Payment Claims (as defined in clause 1.1 of the subcontract between John Holland and Lawsons dated 31 March 2014 (Lawsons Subcontract) [JHG.0030.0000018]; see also clause 12.6); (b) all John Holland Payment Schedules (as defined in clause 12.7 of the Lawsons Subcontract); (c) any written claims by Lawsons for an extension of time pursuant to clause 10.6 of the Lawsons Subcontract; (d) John Holland's responses to any claim for an extension of time; (e) John Holland's EOT Register; (f) John Holland's Variation Register; and (g) any notice or claim by John Holland seeking payment of liquidated damages in accordance with clause 13.6 of the Lawsons Subcontract.
6A2.6 and 6A2.7	Between 1 January 2014 to 23 February 2018, the following documents: (a) all Fredon Payment Claims (as defined in clause 1.1 of the subcontract between John Holland and Fredon dated 5 July 2013 (Fredon Subcontract) [JHG.0030.0000046]; see also clause 12.6); (b) all John Holland Payment Schedules (as defined in clause 12.7 of the Fredon Subcontract); (c) any written claims by Fredon for an extension of time pursuant to clause 10.6 of the Fredon Subcontract; (d) John Holland's responses to any claim for an extension of time; (e) John Holland's EOT Register; (f) John Holland's Variation Register; and (g) any notice or claim by John Holland seeking payment of liquidated damages in accordance with clause 13.6 of the Fredon Subcontract.
6A2.8	Between 1 January 2014 to 21 March 2017, the following documents: (a) all Nilsen Payment Claims (as defined in clause 1.1 of the subcontract between John Holland and Nilsen dated 17 April 2013 (Nilsen Subcontract) [JHG.0030.0000026]; see also clause 12.6); (b) all John Holland Payment Schedules (as defined in clause 12.7 of the Nilsen Subcontract); (c) any written claims by Nilsen for an extension of time pursuant to clause 10.6 of the Nilsen Subcontract; (d) John Holland's responses to any claim for an extension of time; (e) John Holland's EOT Register; (f) John Holland's Variation Register; and (g) any notice or claim by John Holland seeking payment of liquidated damages in accordance with clause 13.6 of the Nilsen Subcontract.
6A2.9	Between 1 January 2014 to 14 July 2017, the following documents: (a) all Centigrade Payment Claims (as defined in clause 1.1 of the subcontract between John Holland and Centigrade dated 7 June 2013 (Centigrade Subcontract) [JHG.0030.0000029]; see also clause 12.6); (b) all John Holland Payment Schedules (as defined in clause 12.7 of the Centigrade Subcontract); (c) any written claims by Centigrade for an extension of time pursuant to clause 10.6 of the Centigrade Subcontract; (d) John Holland's responses to any claim for an extension of time; (e) John Holland's EOT Register; (f) John Holland's Variation Register; and (g) any notice or claim by John Holland seeking payment of liquidated damages in accordance with clause 13.6 of the Centigrade Subcontract.
6A2.10	Between 1 January 2014 to 22 August 2018, the following documents: (a) all CC Payment Claims (as defined in clause 1.1 of the subcontract between John Holland and Christopher Contracting Pty Ltd atf The Christopher Contracting Trust (CC) dated 2013 (CC Subcontract) [JHG.0030.0000034]; see also clause 12.6); (b) all John Holland Payment Schedules (as defined in clause 12.7 of the CC Subcontract); (c) any written claims by CC for an extension of time pursuant to clause 10.6 of the CC Subcontract; (d) John Holland's responses to any claim for an extension of time; (e) John Holland's EOT Register; (f) John Holland's Variation Register; and (g) any notice or claim by John Holland seeking payment of liquidated damages in accordance with clause 13.6 of the CC Subcontract.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
HW
Associate to the Honourable Justice Hill
20 JANUARY 2022