Juwi Renewable Energy Pty Ltd v Degrussa Solar Project Pty Ltd
[2020] WASC 106
•31 MARCH 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: JUWI RENEWABLE ENERGY PTY LTD -v- DEGRUSSA SOLAR PROJECT PTY LTD [2020] WASC 106
CORAM: HILL J
HEARD: ON THE PAPERS
DELIVERED : 31 MARCH 2020
FILE NO/S: CIV 1896 of 2019
BETWEEN: JUWI RENEWABLE ENERGY PTY LTD
Plaintiff
AND
DEGRUSSA SOLAR PROJECT PTY LTD
Defendant
GHD AUSTRALIA PTY LTD
Third Party
(ORIGINAL ACTION)
DEGRUSSA SOLAR PROJECT PTY LTD
Plaintiff by counterclaim
AND
JUWI RENEWABLE ENERGY PTY LTD
First Defendant by counterclaim
AQURA TECHNOLOGIES PTY LTD
Second Defendant by counterclaim
(BY COUNTERCLAIM)
Catchwords:
Procedure - Discovery - Application for discovery of electronic documents - Categories of discovery - Whether discovery should be ordered - Disproportionate burden - Turns on own facts
Legislation:
Evidence Act 1906 (WA)
Rules of the Supreme Court 1971 (WA), O 1 r 4B, O 26 r 7
Result:
Discovery allowed for an amended category 8A
Category: B
Representation:
Original Action
Counsel:
| Plaintiff | : | No appearance |
| Defendant | : | No appearance |
| Third Party | : | No appearance |
Solicitors:
| Plaintiff | : | Thomson Geer Lawyers - Brisbane |
| Defendant | : | Pinsent Masons (Australia) |
| Third Party | : | Armeli & Molony Lawyers |
Counterclaim
Counsel:
| Plaintiff by counterclaim | : | No appearance |
| First Defendant by counterclaim | : | No appearance |
| Second Defendant by counterclaim | : | No appearance |
Solicitors:
| Plaintiff by counterclaim | : | Pinsent Masons (Australia) |
| First Defendant by counterclaim | : | Thomson Geer Lawyers - Brisbane |
| Second Defendant by counterclaim | : | Thomson Geer Lawyers - Brisbane |
Case(s) referred to in decision(s):
Mulley v Manifold (1959) 103 CLR 341
HILL J:
On 27 November 2019, orders were made for the parties to exchange and attempt to agree lists of categories of documents for discovery. The parties have agreed all categories of documents apart from one.
DeGrussa Solar Project Pty Ltd (DeGrussa) seeks discovery from juwi Renewable Energy Pty Ltd (juwi) of all electronic messages to and from 17 individuals between October 2016 and July 2017 insofar as the messages relate to the operation and functioning of a solar and battery facility. DeGrussa contends that by reason of the definition of 'document' under both s 79B of the Evidence Act 1906 (WA) and O 26 r 1 of the Rules of the Supreme Court 1971 (WA) (Rules), which extends to electronic documents, it is appropriate that the categories of discovery extend to electronic messages.
This category is opposed by the plaintiff. Juwi submits that first, these documents are not relevant to the matters in issue in the proceedings; second, many of the individuals identified in the category are no longer employed by them and, as a result, these documents are no longer in their possession custody or power; and third, the time and cost of facilitating discovery of this category is disproportionate to its probative value. They contend that if orders are to be made for the discovery of electronic messages, it should be limited to messages passing between two named individuals on 14 October 2016.
The parties have agreed that this matter be determined on the papers. Each filed a position paper in support of their position.
Legal principles
Order 26 of the Rules concerns discovery and inspection. For the purpose of O 26, document is defined as meaning:[1]
any record of information and includes —
(a)any disc, tape, sound‑track or other device in which sounds or other means of transmitting data (not being visual images); and
(b)any film, negative, disc, tape or other device in which one or more visual images,
are embodied so as to be capable, with or without the aid of some other device, of being reproduced therefrom.
[1] Rules of the Supreme Court 1971 (WA), O 26 r 1A.
There is a similar definition of document in the Evidence Act 1906 (WA), s 79B.
Order 26 rule 7(3) of the Rules sets out the orders for discovery that can be made by the court. The court has a broad discretion as to the orders it can make, including whether discovery should be given of only specified documents or specified classes or categories of documents. The Rules make plain that in exercising the discretion to order discovery, the court must have regard to O 1 r 4B of the Rules.
Order 1 rule 4B(1) of the Rules requires the court to manage and supervise all actions commenced in the court with the objectives of:
(a)promoting the just determination of litigation; and
(b)disposing efficiently of the business of the Court; and
(c)maximising the efficient use of available judicial and administrative resources; and
(d)facilitating the timely disposal of business; and
(e)ensuring the procedure applicable, and the costs of the procedure to the parties and the State, are proportionate to the value, importance and complexity of the subject matter in dispute; and
(f)that the procedure applicable, and the costs of the procedure to the parties, are proportionate to the financial position of each party.
Pursuant to O 1 r 4B(2), in considering whether to make the orders sought by DeGrussa, I am required to consider whether the orders would 'best ensure the attainment of the objects referred to in subrule (1)'.
Unless orders are made restricting the categories of documents, a party is obliged to give discovery of all documents which are or have been in its possession custody or power which relate to any matter in question.[2] The principles of positive case flow management do not alter the long‑standing interpretation of what relates to any matter in question.
[2] Rules of the Supreme Court1971 (WA), O 26, rr 1(1) and 7(4).
As was noted by Menzies J in Mulley v Manifold:[3]
I now turn to the pleadings to determine what are the matters at issue between the parties, because discovery is a procedure directed towards obtaining a proper examination and determination of these issues – not towards assisting a party upon a fishing expedition. Only a document which relates in some way to a matter in issue is discoverable, but it is sufficient if it would, or would lead to a train of enquiry which would, either advance a party's own case or damage that of his adversary.
[3] Mulley v Manifold (1959) 103 CLR 341, 345.
Before turning to consider the category of documents sought, I summarise the pleadings which determine the matters at issue between the parties in these proceedings.
Issues in proceedings
The dispute in these proceedings concerns solar and diesel facilities at the DeGrussa copper mine, which is owned by Sandfire Resources NL.
Under a power purchase agreement entered into in February 2015 (and amended in July 2015), DeGrussa agreed to purchase electricity from juwi to be generated from a solar and battery operated hybrid power facility (Solar Facility) and supplied to a diesel generator power station. At this time, the Solar Facility had not yet been constructed. In July 2015, juwi and DeGrussa also entered into an operation and maintenance agreement for the Solar Facility.
Construction of the Solar Facility commenced in July 2015, with practical completion occurring in June 2016.
On 14 October 2016, an outage or blackout occurred which caused a total loss of power to the mine. Juwi carried out works between 14 and 18 October 2016 to rectify the issue.
Between October 2016 and April 2017, DeGrussa directed juwi to undertake further works at the diesel facility and Solar Facility, which DeGrussa has refused to pay for.
The dispute between the parties essentially concerns the cause of the blackout, who is responsible for it and whether juwi is entitled to be paid for the work carried out between October 2016 and April 2017, or whether juwi was required to carry out these works as part of its obligation to rectify any defects with the Solar Facility.
Disposition of application
It was not in dispute between the parties that electronic messages are discoverable documents. The issue between the parties was whether the category of documents sought was relevant and, if so, whether it was sufficiently relevant for discovery to be ordered given the case management objectives set out in O 1 r 4B.
The parties have agreed that the plaintiff should provide 10 categories of documents. A number of these categories require the discovery of 'Documentation'. This is defined as having the same meaning as 'document' in O 26 r 1A of the Rules and s 79B of the Evidence Act. In relation to these categories, the plaintiff will be required to undertake reasonable searches to discover electronic messages which fall within these categories.
Category 8 of the agreed categories requires the plaintiff to discover all site diaries, personal diaries and notebooks of and any emails to and from 17 named individuals relating to the operation and functioning of the Solar Facility between October 2016 and July 2017.
Category 8A seeks discovery of all electronic messages to and from the same 17 named individuals for the same subject matter and between the same dates.
While electronic documents is not defined, juwi understands this includes text messages, SMS messages, iMessages, Microsoft Lync messages and other instant messages sent and received through social media platforms.
For the following reasons, I decline to exercise my discretion to order the plaintiff to provide discovery of the entirety of documents sought in category 8A. First, none of the pleadings refer to or rely on any electronic messages (apart from emails). Nor is there any evidence before me that any of the named individuals used electronic messaging as their preferred mode of communication.
Second, electronic documents between juwi and specific third parties are required to be discovered under other agreed categories of documents. As such, juwi will be required to carry out reasonable searches for documents that are relevant to these categories and discover these documents. Third, in my view, to require the plaintiff to obtain and undertake searches of all electronic messages passing between 17 individuals over a nine-month period is disproportionate to the likely benefit to DeGrussa in obtaining such discovery.
However, I consider that a more limited category 8A should be ordered.
It is clear from the pleadings that there was a blackout at the mine on 14 October 2016 and that rectification works were carried out between 14 and 18 October 2016. I accept that in this period, there is likely to have been disruption to the usual forms of communications between employees and that employees of juwi may have communicated by means other than email including by electronic messaging.
Accordingly, I consider that category 8A should be amended to delete the words 'October 2016 and July 2017' and replace them with the words '14 and 18 October 2016'.
Juwi also contended that category 8A should be limited to the electronic messages of Mr Andrew Drager and Mr Peter Drager. This was on the basis that of the 17 people listed, only five of the people listed were employed on 14 October 2016 and continue to be employed by juwi. Of these, they submitted that three people, because of their role and job description, were unlikely to have received electronic messages relevant to the operation and functioning of the Solar Facility.
For the following reasons, I do not accept this submission. First, category 8 of the agreed categories of documents refers to the same 17 people and requires discovery to be given of all site diaries, personal diaries, notebooks and any emails to or from these individuals between October 2016 and July 2017 relating to the operation and functioning of the facility. Category 8A covers the same subject matter but seeks disclosure of a different type of document, namely electronic messages. In my view, I consider that the same individuals should be the subject of both categories. Second, juwi's obligation is to take all reasonable steps to locate and produce the documents. If it has done so and the devices of these individuals are no longer in their possession custody or power, juwi will have complied with its obligations. Third, if the individuals have no relevant documents, nothing will have to be discovered.
If after discovery has been provided, there is evidence that juwi has not complied with its obligations of discovery or that there are further documents that should be discovered, DeGrussa can renew its application.
Conclusion
For these reasons, I do not consider that juwi should be required to give discovery of category 8A in the terms proposed. I consider that, at this stage, the category should be limited to messages dated between 14 October 2016 and 18 October 2016.
I will hear from the parties on the precise terms of the orders as well as costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MG
Research Orderly to the Honourable Justice Hill31 MARCH 2020
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